Andrеw Bernard FULLER, Petitioner, v. Eric H. HOLDER, JR., Attorney General, Respondent.
No. 13-1815.
United States Court of Appeals, Fourth Circuit.
Submitted: Feb. 26, 2014. Decided: March 10, 2014.
558 Fed. Appx. 184
Andrew Bernard Fuller, a native and citizen of Trinidad and Tobago, petitions for review of an order of the Board of Immigration Appeals (“Board“) affirming, without opinion, his appeal from the immigration judge‘s denial оf his request for deferral of removal under the Convention Against Torture. For the reasons discussed below, we dismiss the petition for review.
Pursuant to
Because Fuller has conceded that he is a native and citizen of Trinidad and Tobago and that he has been convicted of a criminal offense that qualifies as an aggravated felony, see
PETITION DISMISSED.
UNITED STATES of America, Plaintiff-Appellee, v. Christopher MYERS, Defendant-Appellаnt.
No. 13-4035.
United States Court of Appeals, Fourth Circuit.
Submitted: Jan. 31, 2014. Decided: March 10, 2014.
558 Fed. Appx. 184
James Wyda, Federal Public Defender, Joanna Silver, Office of the Federal Public Defender, Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, LisaMarie Freitas, Special Assistant United States Attorney, Kristi O‘Malley, Assistant United States Attorney, Greenbelt, Marylаnd, for Appellee.
Before MOTZ, SHEDD, and DIAZ, Circuit Judges.
Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
Christopher Myers was charged in a three-count superseding indictment with knowingly receiving child pornography, in violation of
Myers was identified as part of an investigation into the sale of child pornography via internet websites. The count that Myers сhallenges states that, on or about October 22, 2006, through on or about November 20, 2006, Myers knowingly received child pornography and material that contained child pornography as defined by
There is no question that Myers “received” child pornography; the question is “whether that receipt was knowing.” United States v. Winkler, 639 F.3d 692, 699 (5th Cir.2011). See also United States v. Whorley, 550 F.3d 326, 334 (4th Cir.2008) (observing that there was “no ... question” that a defendant “received” child pornography where the defendant “actively used a computer to solicit obscene material through numerous and reрetitive searches and ultimately succeeded in obtaining the materials he sought“); United States v. Osborne, 935 F.2d 32, 34 n. 2 (4th Cir.1991) (observing that a defendant had received child pornography where he “achieved the power to exercise dominion and control over them“).
Because
Whether a defendant knew that files viewed online would be saved to his computer is a close question only where there is some indication that the imagеs were saved there without his knowledge. If, for example, the evidence shows only that the images were saved to the computer‘s cache or temporary internet folders and that the defendant made no effort to remove them, or that the images were otherwise saved automatically to locations inaccessible to a computer user, there may be some reason to believe that the defendant did not “knowingly” receive the images.
We conclude that, here, this issue is not close. The core of Myers’ defense was that the Government only presented circumstantial evidence that Myers knowingly received the files. He argues it is unreasonable to believe that he would have uploaded images to transfer them to a new computer only to later delete most of them. But the facts adduced at trial render this defense unavailing.
The jury learned that Myers created an innocuous folder name of “SATCOM,” a title related to his profession, to store most of his directory of child pornography, clearly indicating that he knew illegal images would be saved to his hard drive. Myers also created desktop shortcuts to his file-share programs’ saved/shared folders. The Fifth Circuit has observed that a defendant‘s downloading of “dozens” of child pornography images, stashing the files in unusual or password-protected locations on his hard drive, and creating a file containing links to child pornography websites indicate “a pattern of child pornography receipt” suggesting that the defendant also knowingly downloaded the particular files upon which the receipt count was based. Winkler, 639 F.3d at 699. The same principle applies here.
Finally, the computer forensic examiner who conducted the investigation and search of Myers’ computer found over a thousand files that were identical to child pornography images available to members of the Sick Child Room website at the time that Myers had access to it. While Myers argues that these images were also available in file sharing programs and that he did not necessarily download them himself, he ignores the evidence found by the forensic examiner that the same files on Myers’ computer had information consistent with their being uploadеd to his computer from an external device. We thus conclude that the evidence was sufficient to find that Myers knowingly received child pornography during the relevant time period.
Next, Myers contests the district court‘s evidentiary ruling excluding the defense‘s expert witness, аn optometrist, who would have opined on Myers’ condition of ocular albinism. On the first day of trial, defense counsel gave notice to the Government of Myers’ intent to call the optometrist as an expert witness. Myers argued that his impairment made it less likely that he wоuld commit a visual offense, such as the possession and distribution of pornography. He also argued that the jury‘s observations of his appearance and actions during trial (such as involuntary eye movements and use of a monocular vision aid) would be confusing and рrejudicial without testimony to explain his condition to the jury. The Government responded that because the proposed testimony involved a medical expert, Myers was required to give notice prior to trial so that the Government could have time to obtаin its own expert and prepare for cross-examination. The district court did not permit the optometrist to testify, concluding that allowing the expert testimony would prejudice the Government. The court, however, permitted other defense witnesses, including Myers’ mother, to testify regarding their personal knowledge of Myers’ limited vision and use of a monocular for vision correction.
We review a district court‘s ruling to exclude an expert witness based on the
The Government sought to exclude Myers’ expert because of its inability to prepare a timely response to the expеrt‘s testimony; the insufficiency of the notice under Rule 16; and prejudice to its case (based on its inability to prepare). Myers asserts that the Government was on notice that the defense might call an expert witness because the defense relied on Myers’ ocular albinism in challenging the admission of the seized computer, arguing that he could not read the written consent provided to him.
“[T]he case law is clear that it is not an abuse of discretion for a trial court to disallow expert testimony where a late proffer of evidence by the defense substantially prejudices the government in its ability to find its own expert and conduct similar testing.” United States v. Dorsey, 45 F.3d 809, 816 (4th Cir.1995). In United States v. Curry, 977 F.2d 1042, 1052 (7th Cir.1992), the Seventh Circuit held that the district court did not err in excluding expert testimony regarding the reliability of eyewitness identifications, because, among other things, the defеndants gave the government only four days’ notice of their intent to call their witnesses.
Similarly, we hold that the district court did not abuse its discretion in excluding Myers’ expert witness. See United States v. Johnson, 617 F.3d 286, 292 (4th Cir.2010) (“A court has abused its discretion if its decision ‘is guided by erroneous legal principles’ or ‘rests upon а clearly erroneous factual finding.‘” (quoting Brown v. Nucor Corp., 576 F.3d 149, 161 (4th Cir.2009))) (internal quotation marks omitted).
We therefore affirm the judgment. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.
AFFIRMED.