United States v. Hester
674 F. App'x 31
| 2d Cir. | 2016Background
- Defendant Ricky Patrick Hester was convicted by a jury of receipt/distribution and possession of child pornography under 18 U.S.C. §§ 2252A; sentenced to 97 months’ imprisonment.
- Evidence at trial included nearly 100 emails from Hester’s account, files from his Dropbox where child pornography was shared, two still images and two short video excerpts (each played ~10 seconds), and Hester’s confession to sending/receiving such images.
- Hester moved pretrial to suppress statements and evidence; he challenged admission of polygraph evidence and later raised additional suppression and Posse Comitatus arguments on appeal.
- At an evidentiary hearing, the district court found Hester was not in custody during his interview and that his statements were voluntary; polygraph evidence was excluded as unreliable under Rule 702/Daubert.
- On appeal, Hester raised eight claims: evidentiary rulings on videos, double jeopardy, failure to instruct lesser-included offense, Brady/Giglio violations, polygraph exclusion, suppression of confession, Posse Comitatus, and sufficiency of the evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of video excerpts containing child pornography | Gov: videos were probative to prove images were child pornography and human significance | Hester: probative value outweighed by unfair prejudice under Rule 403 | Admission proper; probative weight justified and govt limited exposure (2 videos, ~10s each) |
| Double jeopardy (possession vs. receipt/distribution) | Gov: two distinct statutory convictions permissible | Hester: possession is lesser-included of receipt/distribution; convictions may be based on same images, violating Double Jeopardy | Claim waived for failure to request limiting jury instruction; not reviewed on merits |
| Lesser-included offense instruction (possession) | Hester: court should have instructed jury that possession is lesser-included | Gov: no instruction required because evidence showed both offenses | Plain-error review — no error: evidence precluded rational jury finding possession alone given emails, Dropbox, and confession |
| Brady/Giglio disclosure regarding Agent Cerutti | Gov: no Giglio material because prior case did not impeach Cerutti’s truthfulness | Hester: failure to disclose Cerutti’s involvement in unreasonable search in Bershchansky was impeachment material | No Brady/Giglio violation: prior ruling did not show Cerutti lied or had credibility issues relevant to this case |
| Admission of polygraph-derived expert opinion | Gov: polygraph unreliable and misleading | Hester: polygraph should be admissible as expert evidence | District court did not abuse discretion; polygraph not shown sufficiently reliable under Daubert/Rule 702 |
| Suppression of confession (Miranda/custodial interrogation) | Gov: interview was non-custodial and voluntary | Hester: statements involuntary and obtained without Miranda warnings | District court’s factual findings crediting agents; no Miranda violation — defendant not in custody and statements voluntary |
| Posse Comitatus Act challenge to search | Gov: procedural waiver; claim not timely raised | Hester: Army CID participation rendered search unlawful | Waived: Hester failed to raise this specific ground before trial and showed no good cause for delay |
| Sufficiency of the evidence | Gov: substantial evidence showed Hester’s control of accounts and knowledge | Hester: roommate could be responsible; lacked requisite technical expertise | Conviction affirmed: evidence, viewed favorably to Gov, permitted rational jury to find guilt beyond a reasonable doubt |
Key Cases Cited
- United States v. Polouizzi, 564 F.3d 142 (2d Cir.) (permitting presentation of child-pornography images to show human significance)
- Old Chief v. United States, 519 U.S. 172 (1997) (limiting evidence when proffered proof and its prejudicial effect conflict)
- United States v. Bershchansky, 788 F.3d 102 (2d Cir.) (search unreasonable where agents relied on incorrect apartment specification)
- United States v. Diaz, 176 F.3d 52 (2d Cir.) (standard for when lesser-included offense instruction is required)
- United States v. Coppa, 267 F.3d 132 (2d Cir.) (Brady/Giglio disclosure obligations)
- United States v. Rea, 958 F.2d 1206 (2d Cir.) (polygraph evidence may be excluded for unreliability)