UNITED STATES of America, Plaintiff-Appellee v. Christopher Robert WEAST, Defendant-Appellant.
No. 14-11253.
United States Court of Appeals, Fifth Circuit.
Jan. 26, 2016.
811 F.3d 743
The defendants argue that this evidence was impermissible character evidence and, in any event, was more prejudicial than probative. The government arguably intended to create the improper inference that Gluk and Baker were bad people involved in shady operations and thus were the sort of people who might have tolerated accounting fraud. This type of attempt to demonstrate the character of the defendant is not permissible under
The government, however, responds that activities at DiscoCare were intrinsic to the charges of wire fraud and were highly relevant. The government argues that details about the activities at DiscoCare explain why Gluk and Baker would make misleading statements to investors (i.e., to hide those salacious details). Further, evidence about how involved Gluk and Baker were with the DiscoCare model helps show that they were involved in day-to-day operations; this involvement is relevant to the credibility of their claim to have known nothing about Raffle‘s and Applegate‘s fraud.
At least some evidence of the DiscoCare conduct is undeniably relevant to ArthroCare‘s accounting fraud. At the same time, however, admitting limited evidence does not license the government to introduce the magnitude of testimony it elicited; nor to emphasize the DiscoCare fraud, not chargeable to the defendants, in jury arguments. Allowing this breadth of testimony was error. The district court could have done more to police the line between proper and improper evidence; it should have been careful to prevent the government from dwelling on the salacious details of DiscoCare‘s business practices that could not be charged to the defendants. Because we reverse on other grounds, we need not determine whether this error independently justifies reversal or, conversely, whether it would have been harmless error in the absence of the reversible error we previously identified.
III.
Accordingly, for the reasons stated, we VACATE Baker and Gluk‘s convictions, and REMAND for a new trial.4 VACATED and REMANDED.
Christopher Allen Curtis, Assistant Federal Public Defender (argued), Federal Public Defender‘s Office, Fort Worth, TX, Jerry Van Beard, Esq., Assistant Federal Public Defender, Federal Public Defender‘s Office, Dallas, TX, for Defendant-Appellant.
Christopher Robert Weast, El Reno, OK, pro se.
Before HIGGINBOTHAM, OWEN, and ELROD, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Christopher Weast appeals his conviction for receipt and possession of child pornography, alleging four distinct constitutional violations. We AFFIRM.
On June 4, 2012, Fort Worth Police Department officer Randy Watkins used peer-to-peer file sharing software1 to search for computer users sharing child pornography. Officer Watkins located an IP address2 whose corresponding user appeared to be sharing child pornography.3 He then used the peer-to-peer software to download six files shared by the user. The files had been stored on a computer that the user had nicknamed “Chris,” and they contained apparent child pornography.
Officer Watkins used a publicly accessible website to determine the internet service provider (ISP) associated with the IP address from his search. A subsequent subpoena to that ISP revealed that the IP address was registered to Larry Weast. Law enforcement officers executed a search warrant at Weast‘s residence, where they found his son, Chris. Chris refused to be interviewed. The officers seized computer equipment from Chris‘s bedroom, including a hard drive that was later found to contain child pornography.
Chris (hereinafter Weast) was indicted in the Northern District of Texas for possession and receipt of child pornography.4 The court appointed him counsel. Weast then moved to represent himself. After an apparently uneventful hearing, a magistrate judge granted his motion. Weast proceeded to file several garbled motions of the “sovereign citizen” variety.5 The district court rejected them as “nonsensical and wholly without merit” and ordered a new hearing on the subject of Weast‘s self-representation.
At the hearing, Weast was repeatedly disruptive, leading the court to order a competency evaluation. He was again disruptive at a subsequent hearing convened to discuss that evaluation‘s results. The court arranged for him to participate from another room through an audio/video link, which the court could mute in case of further interruption. After hearing evidence from a forensic psychologist and conferring with counsel from both sides, the court concluded that Weast was competent but could not be allowed to represent himself on account of his conduct.6 It entered a 39-page order justifying its decision. On multiple occasions, the district court told Weast that he would be permitted to rejoin the proceedings in person if he would agree to behave appropriately.
Weast‘s trial began on July 28, 2014 and lasted two days. The jury found him guilty of possession and receipt of child pornography. After further proceedings in which Weast continued to act disruptively, the court followed the sentencing guidelines and gave him 30 years in prison.
II
On appeal, Weast first claims that Officer Watkins violated his Fourth Amendment rights by using peer-to-peer software, without a warrant, to identify Weast‘s IP address as possibly linked to child pornography and to download data that Weast had made available for sharing. Citing the Supreme Court‘s recent decision in Riley v. California,7 Weast moved before trial to suppress all evidence obtained through these activities and the subsequent search of the Weast household.8 The district court denied the motion, reasoning that Weast had no reasonable expectation of privacy in the information accessed through the software and website. We review this conclusion of law de novo.9
We have never explicitly stated whether IP addresses or files shared through peer-to-peer networks are subject to a reasonable expectation of privacy. However, other circuits have concluded that they are not. As the Third Circuit has explained, “[f]ederal courts have uniformly held that ‘subscriber information provided to an internet provider,‘” including IP addresses, “‘is not protected by the Fourth Amendment‘s privacy expectation’ because it is voluntarily conveyed to third parties.”10 Similarly, other courts have consistently held that Fourth Amendment protections do not extend to data shared through peer-to-peer networks.11
Weast acknowledges much of this unfavorable precedent, but argues that Riley should be understood to have wiped the slate clean. In Riley, the Supreme Court held that the Fourth Amendment prohibits warrantless searches of arrestees’ cell phones.12 That case relied on the presumption that the arrestees had a reasonable expectation of privacy in the information on their cell phones. Unlike those arrestees, however, Weast had already voluntarily shared all of the information at issue in this case. He broadcast his IP address far and wide in the course of normal internet use,13 and he made the child pornography files and related data
Our recent decision in Guerrero reinforces this conclusion. In that case, we held that Riley did not overrule our precedent withholding Fourth Amendment protection from cell phone location data passively transmitted to service providers.16 The reasoning of Guerrero easily extends to the facts now before us; IP addresses and peer-to-peer-shared files are widely and voluntarily disseminated in the course of normal use of networked devices and peer-to-peer software, just as cell phone location data are disseminated in the course of normal cell phone use. For this reason, Weast‘s Fourth Amendment rights were not violated when Officer Watkins accessed his IP address and shared files.17
III
Weast next claims that the court denied him his Sixth Amendment rights by refusing to let him represent himself at trial. We review this constitutional challenge de novo, but scrutinize the district court‘s underlying factual findings for clear error only.18 “The denial of a defendant‘s right to represent himself, if established, requires reversal without a harmless error analysis.”19
As discussed above, after Weast repeatedly disrupted pretrial hearings, the district court entered a lengthy and detailed order detailing his obstreperous conduct up to that point. The court explained that Weast consistently refused to answer basic questions (e.g., what his name was and whether he was pleading guilty or not guilty), interrupted the court ad nauseam, and “barraged the court with bizarre filings.” His behavior showed no sign of abating over time, and he ignored numerous entreaties from the bench to change tack. The court concluded that Weast was pursuing “a deliberate and calculated defense strategy to so disrupt the proceedings that they cannot go forward in a meaningful way,” and determined that ab-
Unfortunately, no such change occurred between the time the order was entered and the time of trial. Weast filed more nonsensical motions, and was, if anything, more disruptive than before in a pretrial appearance before the court, a remote appearance during the trial (but outside the presence of the jury) to determine whether he would testify, and sentencing proceedings after the trial.
These antics justified the district court‘s decision. “[T]he trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct.”20 Weast acknowledges this basic principle, but nonetheless claims error on two grounds. First, he argues that the court could not be sure he would disrupt trial without actually letting him represent himself at trial; that is, only if he disrupted his actual trial could the court constitutionally deny him self-representation. This principle is nowhere in our case law. Indeed, in Vernier, an unpublished case, we commented that “a defendant‘s request to represent himself at trial may be rejected if it is intended to cause delay or some tactical advantage” or if pretrial behavior suggests that the defendant intends to disrupt the trial.21 We also noted that “[o]ther circuits
Second, Weast argues that he could have represented himself without causing problems by participating in the trial through the audio/video link, subject to the judge‘s ability to mute the line. But the district court reasonably concluded that such an arrangement would not prevent undue disruption. Even after being removed from the courtroom, Weast continuously interrupted proceedings, refused to answer questions, and delivered nonsensical rants through the audio/video link, forcing the court to repeatedly mute him.26 His con-
Even Weast concedes (through counsel) that his behavior was “bizarre and disruptive.” The district court did not clearly err in concluding that allowing him to represent himself, even remotely, would severely compromise his trial. Its consequent decision to appoint him counsel against his wishes was constitutionally sound.
IV
Weast next challenges the district court‘s decision to limit the testimony of his expert witness, Bill McGregor, a digital forensics specialist. In a bench conference before McGregor testified, the district judge decided to limit McGregor‘s testimony to a handful of questions. Weast‘s counsel did not object. McGregor then took the stand and testified that Weast‘s computer was susceptible to being hacked and that digital images could be and commonly were altered. The court cut Weast‘s counsel off when he tried to ask McGregor about whether viruses were present on Weast‘s computer, commenting that “I think that‘s already been developed” and “I don‘t think that‘s the subject we were dealing with.” Again, Weast‘s counsel did not object.
When a defendant fails to timely object to a disputed evidentiary ruling, we review for plain error only.27 “Under the plain-error standard, this Court makes three initial determinations: (1) whether the district court committed error; (2) whether the error is ‘clear and obvious‘; and (3) whether the error affects substantial rights. ‘If these three conditions are satisfied, we have discretion to reverse the district court if we conclude that the error ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.‘‘”28 “The plain error doctrine only permits us to correct egregious errors which result in a miscarriage of justice.”29
The court below did not plainly err. According to Weast, McGregor‘s testimony would have shown that the images on Weast‘s computer had been altered, that it is impossible to tell whether a digital photo depicts a real minor, that Weast‘s computer could have been hacked, and that virus
V
Finally, Weast calls our attention to two allegedly improper prosecutorial comments. First, in examining Officer Watkins, the prosecutor asked whether Weast “was . . . cooperative” during the search of the Weast residence (i.e., before Weast was arrested). Weast‘s counsel objected and moved for a mistrial. The court denied the motion, but instructed the jury shortly thereafter:
[T]he defendant has no obligation to be cooperative with law enforcement, and if he chooses not to be, that‘s not relevant. So to whatever extent that had been brought out, the jury is not to consider that for any purpose, the fact that he did not cooperate because he had no obligation to.
Second, during the prosecution‘s closing argument, the following exchange transpired:
[Prosecutor:] [...] We can‘t bring in here every child whose pictures appear because they are not all identified, but I would submit to you, it is—there is one person who does know what the contents of that hard drive and what that laptop contain. It‘s the person who was entering their own search—
[Defense counsel]: Objection, Your Honor, improper argument as to Mr. Weast‘s right to remain silent.
THE COURT: I don‘t interpret it that way, but be careful. Of course, the defendant does have the right to remain silent. Go ahead.
[Prosecutor]: The person who entered in those search terms looking for child pornography, the person who was con-
nected to the internet, the person who downloaded child pornography, the person whose face appears on that Western Digital hard drive.33
Weast‘s counsel moved for a mistrial. The court denied the motion, but instructed the jury immediately after the prosecutor concluded her argument:
To whatever extent her argument might have implied that the defendant had any responsibility to explain the material in his room, or to testify, or to do anything other than to remain silent, the jury won‘t consider it for that purpose because he did not have any obligation to cooperate, or to make any statement, and certainly had the right to not testify during this trial. So, if anything she said implied other than that, you‘ll disregard those statements.
On appeal, Weast claims that these comments violated his Fifth Amendment right not to testify and compelled a mistrial. “Generally, we apply a two-step analysis to claims of prosecutorial misconduct. First, we assess whether ‘the prosecutor made an improper remark.’34 If so, then we ask whether the defendant was prejudiced. The prejudice step ‘sets a high bar . . . The determinative question is whether the prosecutor‘s remarks cast serious doubt on the correctness of the jury‘s verdict.’ We generally look to three factors in deciding whether any misconduct casts serious doubt on the verdict: (1) the magnitude of the prejudicial effect of the prosecutor‘s remarks, (2) the efficacy of any cautionary instruction by the judge, and (3) the strength of the evidence supporting the conviction.”35
The prosecutor‘s “cooperative” question might plausibly be interpreted to refer to Weast‘s pre-arrest silence, especially since Officer Watkins had stated shortly before that he had “asked Christopher Weast to speak with me in my car.”36 However, in order for the question to potentially rise to the level of a constitutional violation, this interpretation must be more than plausible. Instead, “[a] prosecutor‘s or witness‘s remarks constitute comment on a defendant‘s silence if the manifest intent was to comment on the defendant‘s silence, or if the character of the remark was such that the jury would naturally and necessarily so construe the remark.”37 The comment at issue fails to clear these hurdles.38 More fundamentally, this court has not yet decided whether a prosecutor may comment on a non-testifying defendant‘s pre-arrest, pre-Miranda silence.39
Weast‘s challenge to the “cooperative” comment is therefore on uncertain footing.
Moreover, even assuming that the comments in dispute were improper, Weast cannot show that the impropriety casts serious doubt on the verdict. The prejudicial effect of the comments is uncertain, given that they did not directly reference Weast‘s silence and are reasonably susceptible to interpretations having nothing to do with that silence. Any possible prejudice would have been further diminished by the district court‘s prompt, thorough, and unequivocal curative instructions.42 Finally, the prosecution‘s evidence is robust enough to sustain his conviction in any event. Therefore, the comments in question do not justify reversal.
VI
Each of Weast‘s four arguments fails. We find no reversible error in the judgment of the district court, and AFFIRM.
PATRICK E. HIGGINBOTHAM
UNITED STATES CIRCUIT JUDGE