United States v. Dustin Worthey

America, STATES UNITED

Plaintiff-Appellee WORTHEY, Defendant- L.

Dustin

Appellant. 12-2276.

No. Appeals, States Court

Eighth Circuit. 18, 2013. Jan.

Submitted:

Filed: June 2013. Fuller,

United States (8th Cir.2009)). 26, 2010, August Arkansas State Po-

On (ASP) an Agent Doug Estes conducted lice investigation of an Internet undercover (IP) suspected that he Protocol address FrostWire, trading pornography child over file-sharing pro- peer-to-peer an online gram. performed Estes an undercover address, suspect IP “browse” of known containing revealed files being offered for down- pornography child images, of the load. Estes viewed two they pornogra- confirmed that were child Jr., Hall, Little Wesley argued, the case to ASP phy, John and transferred Roe, AR, geographical- Rock, Agent Charles who appellant. for IP ly suspect closer to the address. AUSA, ar- Clevenger, Marsha Wardlaw pro- contacted the Internet service Roe Rock, AR, appellee. for gued, Little suspect of the IP address and vider GRUENDER, WOLLMAN, Before suspect that the IP address was learned SHEPHERD, Judges. Circuit Worthey at a resi- registered to Chandra dence on the 200 block of Braden Street WOLLMAN, Judge. Circuit Monette, Arkansas, and that the email ad- Worthey one Dustin juryA convicted “dman762000@gmail.com”was listed dress pornography child receiving count of sur- for the account. Roe then conducted pornography, child possessing count of one residence, of the confirmed for veillance 2252(a)(2) § of 18 U.S.C. violation images were in- suspect himself that the (a)(4)(B). sentenced The district court1 pornography, and obtained deed imprisonment. months’ Worthey to 180 search warrant.

Worthey appeals, arguing district 4, 2010, morning of November On denying his motion for court erred Roe, Ramey Lovan along Agent with ASP venue, motions denying his change Security Investigations and Homeland for a judgment acquittal new Rowe, Worthey to the Deryl drove Agent trial, of child admitting and in evidence warrant. to execute the search residence stipulate over offer to arrival, agents discovered their Upon his sentence. challenges He also thereto. agents As the were ascer- no one there. affirm. We employment, Worthey’s place of taining Agent Mike Grimes they were told ASP Background

I. then-wife, Worthey and his Chandra Wortheys), “in were with him Worthey (collectively the against the facts We state Headquarters. Roe told Grimes jury’s ver- at ASP light most favorable their Tremusini, Wortheys to return to 688 direct dict.” United States Roe, Lovan, then (8th Cir.2012) and Rowe (quoting residence. n. Moody, of Arkansas. M. 1. The Honorable James Judge the Eastern District States District proceeded to the Worthey residence. online that contained the name “Dustin Upon being Grimes, so instructed Worthey.” Wor- they Chandra, “Well, said you are prob- Ward found three file-sharing programs ably going to want to divorce me when this under the “dman” user account: Fro- is all over.” Grimes and the Wortheys stWire, LuckyWire, uTorrent, al- then left separately for the Worthey resi- though FrostWire was predominantly dence. used. Regarding the account, FrostWire Ward determined that the GUID2 number Upon arriving residence, at the within the properties FrostWire file approached said, Rowe and “I why know matched the GUID number associated you are here. The search warrant is for with Estes’s undercover investigation. child pornography.” Worthey then be- Ward found files containing child pornog- came extremely distraught, explaining his raphy in both the “dman” “in- FrostWire emotional state to Rowe by saying, “Be- complete” and “saved” folders. cause I downloaded child pornography.” Worthey was charged with receiving and residence, Inside the Roe found a Toshi- possessing child pornography, violation ba laptop computer, a preview of which of 2252(a)(2) § (a)(4)(B). U.S.C. and revealed child pornography. seized, Roe trial, Before Worthey moved for change among other things, the laptop, five other venue, asking that his trial be held in computers, and a wireless router from the Jonesboro, within the Jonesboro Division Worthey residence. Roe took the laptop of the Eastern Arkansas, District of in- to the Hi-Tech Computer Crime Unit Lab Rock, stead of Little within the Western at the Paragould Department Police Division the Eastern District of Arkan- Department Jonesboro Police Agent Er- sas. The district court concluded that con- nest to analyze Ward kept and the five cerns over security and jury’s the observa- other computers to analyze himself. Roe’s tion of in custody outweighed any week-long examination of the five other placed inconvenience upon the witnesses computers revealed no child pornography Worthey’s family and friends and thus on them. denied the motion. Ward’s forensic examination of lap- the government disclosed prior to trial top’s hard drive disclosed a user account that it intended to play up to five seconds “dman,” called and Ward learned that the of each of four videos containing por- child password “Badone76” was required ac- to nography found the “dman” FrostWire cess account; the user that the username “incomplete” folder, as well as up to five password were on February created seconds of each of five videos containing 27, 2010; and the that email address asso- child pornography found in the “dman” ciated with laptop the was “Dman76 FrostWire “saved” folder.3 The video something@gmail.” Ward also discovered clips were a “representative of all sample a username for Arkansas State University of the child pornography” and not in- did trial, 2. At explained Estes that a is a GUID five seconds of each the four videos or assigned number to an computer individual some combination testimony thereof. The at by a file-sharing program that serves as "the trial, however, indicates government that the particular identifier for one machine on played five seconds at from least one the network!.]” videos and up to five seconds from the other three videos. 3. The record is unclear govern- whether the sought ment to ultimately played three maximum term of im- Worthey ment based on the videos. worst” of the elude “the by statute. prisonment con- authorized the videos stipulate sought thereby pre- pornography tained At Ward testified he had sentencing, trial. The dis- at clude their introduction laptop approximately found on the vid- court, having viewed the though not trict pornography totaling between eos of child although clips, determined video length, hours in as well as 204 65 and 75 offensive, gov- likely clips were video Later, pornography. of child its right present retained ernment graphic Rowe testified as to the and vio- trial, pub- At evidence. contain- lent content of three of videos clips jury. the video lished laptop. found on the ing child acquit- judgment Worthey moved sentencing, at the district court Also case government’s the close of the tal at County report received a from Morrison of all of the evi- again at the close 16, 2012, Services, dated March con- Social the mo- court denied dence. The district In the cerning Worthey’s stepdaughter. verdict, jury’s Following the tions. stated that report, Worthey’s stepdaughter Worthey’s motion for court denied district sexually abusing prior her Worthey “began alternatively for acquittal judgment third birthday until November of up to her a new trial. 2010, he arrested for age at when was conviction, at that time.” The re- pre- a Following Worthey’s (PSR) Worthey’s stepdaugh- port also detailed prepared. was report sentence continuing post-abuse struggles, detailed an ter’s things, the PSR Among other ideation. The dis- Police De- which included suicidal by the Monette investigation report a from the trict court also received after Chandra Wor- began that partment Department, Craighead County Sheriffs shortly after the search they reported, executed, July attempted of an suicide daughter that her dated warrant was stepson. The district court by Worthey’s stepdaughter and son— testimony regard- from Ward Worthey had then heard her that stepson told —had of a conversation between ensuing ing the details During the molesting them. been day, that dur- and Chandra earlier and Ward Worthey’s stepdaughter investigation, him that Wor- detail, told Worthey ing which Chandra that reported, stepson girls’ at “a living they’s stepdaughter was sexually abused them. had institution, juvenile a home and mental a base offense recommended The PSR lockdown,” and that Wor- 24-hour under adjusted level of 22 and an offense level of anxi- being treated for they’s stepson “was enhance- included a five-level which abuse.” ety disorder due sexual activity pattern in a engaging ment for admitted, then over Wor- district court exploitation abuse or involving the sexual objection, videotape statements they’s 2G2.2(b)(5), minor, § of a see U.S.S.G. stepson. Worthey’s stepdaughter pos- a four-level enhancement well as by preponder- court found sa- The district pornography portraying sessing child Worthey that had of the evidence other de- ance conduct or distic or masochistic 2G2.2(b)(4). of his of sexual abuse violence, engaged pattern in a § see id. pictions of The district category stepchildren. minor history this and a criminal From Worthey had a base that then determined I, calculated a United States the PSR 22; pat- (Guidelines) that the five-level level of range offense Sentencing Guidelines enhancement, the tern-of-sexual-abuse imprisonment, months’ of 235-293 enhance- depiction-of-violenee imprison- months’ four-level reduced to 235-240 ment, and enhancements, several other Davis, United States v. ap- plied; that Worthey had a total Cir.1986)). offense 38; level of Worthey had a crimi- Worthey argues that the district history nal category this,, of I.'From the court failed to afford sufficient weight to district court calculated range Guidelines witnesses, convenience of the his fami of 235-293 months’ imprisonment, which ly, and argues his friends. He became 235-240 months’ imprisonment witnesses, family, and his friends were based on applicable statutory maxi- forced to commute in excess of two hours mum. The district court Worthey credited to attend his trial and that govern with “some reservations” it regarding had purported ment’s security concerns could the imposition of pattern-of- the five-level have been adequately addressed addi sexual-abuse enhancement and sentenced tional security officers. him to 180 imprisonment months’ on the receipt count and imprison- points months’ to our decision in Stan- ment on ko, possession count, with the in which we explained that “[w]hile sentences to run concurrently. district court retains considerable discre- tion in determining place trial,

II. Discussion discretion is contingent upon the court’s A. consideration of the Motion factors provided for a Change of Venue Rule 18 when ruling on a proper motion Worthey argues that the district for change of venue.” 528 F.3d at 586. court erred in denying his motion for a Stanko, But unlike where there was “no change of venue. “We review a denial of a evidence in the record that motion a change of venue for abuse of court any undertook consideration of the discretion.” States v. Stanko, United 528 convenience of the 581, (8th defendant Cir.2008) or F.3d 584 witnesses (quoting Unit or the prompt Allee, ed States v. administration (8th justice[,]” of 996, 299 F.3d 999 Cir.2002)). id. at here the record shows that the district court considered the Rule 18 fac- The Sixth Amendment tors and determined security concerns United States Constitution “requires that from holding the trial in Jonesboro out- a trial be held in the state and district weighed the inconvenience of holding the where the crime was committed.” Id. trial in Little Rock. We conclude that the (quoting United v. States Wipf, 397 F.3d district court did not abuse its discretion in (8th Cir.2005)). 686 “However, a de so ruling. Moreover, Worthey has shown fendant does not right have a to be tried no prejudice arising therefrom. See Unit- particular division.” Id. (quoting Wipf, Anderson, ed States v. 626 F.2d 1375 686). 397 F.3d at Pursuant to Federal (8th Cir.1980) (“Absent any prejudice to Rule of Criminal Procedure the district defense, of decision the trial court court “must set the of place trial within the cannot be considered an abuse of discre- district with due regard for the conven tion.”), Stanko, cited in 528 F.3d at 584. defendant, ience of the any victim, and the witnesses, and the prompt administration B. Sufficiency of the Evidence justice.” “A district judge has broad discretion determining argues where within a that the district court district trial held, will be erred denying to overturn motions judgment the court’s decision the acquittal defendant must and motion for a new trial prove abuse of that discretion preju or because the evidence was to insufficient Stanko, dice.” 528 F.3d at (quoting 584 convict argues him. He that the govern- Worthey’s chal- (1) Id. construe the means.” We that he was prove to failed

ment he was the lenges disputing whether the Internet accessed person who pornogra- found the child pornography one who downloaded downloaded (2) por- so, the child if whether he “received” laptop; phy on perma- laptop’s in the pornography. was saved the child nography “possessed” temporary to opposed memory as nent earlier, a forensic ex As recounted cache. revealed a user laptop amination of the district de novo review We password “dman” with the account called judgment the motion denial of court’s “Badone76,” file-sharing programs several challenge to the “review a but acquittal, account, an user email under the “dman” deferentially the evidence sufficiency of laptop associated with the address of fact could if rational trier any affirm a user- “Dman76something@gmail,” and of the elements found the essential have University online name for Arkansas State Unit reasonable doubt.” beyond a crime the name “Dustin that contained Wor (8th 708, 721 676 F.3d Vega, v. ed States to the evidence ob they.” In addition Cir.2012) Augus United States (quoting laptop, from the tained Cir.2011)). (8th tine, We 663 F.3d Worthey’s inculpatory introduced also of the court’s denial the district review conclude that the evi statements. We for an abuse of trial motion for a new laptop, considered to dence found on the Maybee, States United discretion. statements, gether with Cir.2012). “Although 1026, 1032 Worthey was to establish that sufficient may weigh the evidence court the district por the child person who downloaded witnesses, must the verdict and disbelieve laptop on the his resi nography found ‘[u]nless allowed stand be dence. miscar that a ultimately determines court ” with the district agree alsoWe (alteration occur.’ Id. riage justice will evidence was sufficient that the v. Cam States original) (quoting containing child the files establish (8th Cir.2002)). 577, 579 pos, knowingly downloaded were noted, Worthey was convict- already As mem permanent laptop’s saved the and por- child possessing and receiving ed Stulock, 308 States v. ory. Unlike United 18 U.S.C. in violation of nography, (8th Cir.2002), 922, we F.3d 925 2252(a)(2) (a)(4)(B). convic- “The § acquitted had the district court noted that child receipt possession for tions knowingly charge of on the the defendant essentially same on the turn pornography because pornography child possessing evidence, thus will requirements and only the charge specified possession “[t]he v. together.” United States be discussed cache[,]” the images found in the browser Cir.2007). (8th White, 635, 641 506 F.3d Worthey’s trial estab adduced at evidence receipt under 18 U.S.C. “The elements of found on pornography that the child lished 2252(a)(2) to require § the defendant through peer- downloaded laptop the pornog- an item of child knowingly receive lap onto the file-sharing programs to-peer transported item to be and the raphy, that he found explained top. Agent Ward Id. “The foreign or commerce.” interstate Fro the in files within pornography child 18 U.S.C. possession under elements and “saved” folders “incomplete” stWire 2252(a)(4)(B) to require the defendant § containing files and that the laptop on the pornog- an item of child knowingly possess were searched pornography the transported the item to be raphy, and This testi- by the user. by any and downloaded commerce foreign interstate 1114 Agent prove with Estes’s to

mony was consistent tled its case evidence of its testimony regarding operation the of file- required own choice and not accept is to sharing programs such as FrostWire. See stipulate]”); the offer [to United States v. Koch, 470, 625 F.3d United States v. 478- Becht, (8th Cir.2001) 767, 267 F.3d 774 (8th Cir.2010) (holding images 79 that (similar). To the extent that Worthey’s on computer defendant’s] “found [the argument a challenge constitutes flash drive in files that a user had to validity or rationale of and our McCourt manually!,]” along create with “evidence precedent, necessarily other we must re images that a had number of been ject it, for “[i]t is cardinal rule our deleted!,]” moved and others were “suffi- circuit panel that one is bound support finding cient to that de- [the prior panel.” decision of a United States knowingly possessed fendant] Betcher, (8th 534 F.3d 823-24 Cir. (footnote omitted)). pornography” of child 2008) Luebbers, (quoting Owsley v. Accordingly, the district court did not err (8th Cir.2002)). Worthey’s in denying judg- motions for The record indicates that the district acquittal ment of and motion new analysis conducted a Rule 403 when trial.

considering the admissibility of the video Stipulation C. trial, clips. Before counsel ar gued that clips the video should be exclud argues ed in permitting stipulation court erred in accordance with his government be play clips the video containing they child cause prejudice would “bias and despite at trial his willing jury inflame against [Worthey].” [the] they ness to stipulate that contained child government responded that it intend (1) pornography. argues in light He play only ed to select five-second video stipulation, clips this the video should clips clips and that it had chosen as “a have been excluded under Old Chief representative sample of all of the child States, 519 U.S. 117 S.Ct. pornography” without including “the (2) (1997); 136 L.Ed.2d 574 that the dis worst” of the parties’ videos. Given the trict court failed to conduct a Federal Rule positions, stated presume that “[w]e balancing Evidence 403 test in deciding district court weighed this evidence pursu whether clips to admit the video or to ant to Rule 403” and concluded accept stipulation as a substitute there permitted should be play (3) for; and that the district court other the video clips. Smith v. Tenet Healthsys wise erred in admitting the video clips. SL, Inc., tem Cir. We review the district court’s evidentiary 2006), McCourt, cited in 468 F.3d at 1092. ruling for an abuse of discretion. United Moreover, agree we do not with Wor- Sewell, (8th v. States 457 F.3d 843 they that clips unfairly the video Cir.2006). preju- diced him. Our court considered and re- We conclude first that Old jected argument a similar in McCourt: argument is foreclosed United Chief only argument The that McCourt of- McCourt, States v. 468 F.3d 1091-92 fers in support prejudice of his unfair (8th Cir.2006), in which we held that Old claim is that pornogra- videos of child prohibit publication did not of child Chief phy, more so than still images, arouse clips jury video to the over jury emotions that a the defendant’s offer to is unable to set stipulate to their Sewell, reaching content. See also aside in 457 F.3d at 844 its verdict. the While (explaining that government “the is enti- videos were no doubt unfavorable to

1H5 been a better have it Although might that [Rule remains McCourt, fact “the to have exam- for course against protection offer not does 403] to de- prior for clips itself the video ined the merely prejudicial that is evidence admissibility, see United termining their party’s to a being detrimental of sense 694 F.3d 386- Cunningham, v. States against evi- protects rule case. (3d Cir.2012), the circumstances under 87 prejudicial.” unfairly is that dence prejudice no unfair we find case of this Johnson, F.3d 463 v. States United the clips to the of video publication the Cir.2006) (internal quotation (8th 809 not consider we need Accordingly, jury. added). omitted) McCourt (emphasis of the video value probative the weigh qualita- are that videos may correct be of Wor- potential adequacy or the clips it but images, still from tively different there- aas substitution they’s stipulation nothing more is a video true is also 1093; McCourt, at 468 F.3d E.g., for. shown images still of a series than Betcher, at 825. 534 F.3d of illusion the to create succession rapid of the out videos Only seven motion. D. Sentence com- on McCourt’s than 175 found more imposition Worthey argues that and each jury the to were shown puter engaging for enhancement the five-level any Because seconds. only three for a minor violat abuse of of sexual pattern by a mere created of motion illusion (1) the rights because process due ed his minimal, surely is of video seconds three by clear supported not enhancement was be- difference qualitative little we see notwithstanding convincing evidence and of these publication limited the tween increased enhancement the fact of still publication videos and seven 100 by up to addi sentence potential durations, upheld longer images (2) be imprisonment, months’ tional Sewell, at F.3d 457 See cases. prior our largely based the enhancement cause than 60 more (reversing exclusion 844 his minor videotape statements on Becht, images); of still seconds that his argues also He stepchildren.4 displayed images (upholding at 774 (1) is unreasonable sentence 180-month jurors). to copies distributed and hard that he suf evidence presented he because Sewell, in Becht Moreover, unlike (2) Syndrome, Asperger’s fers from collec- the defendant’s with dealt those than greater is his sentence because reason no images, we see still tion of yet of similar convicted offenders of other its limit must the Government here that de review novo We conduct. more heinous because still evidence see argument, process Worthey’s due limit his collection. not so Lee, did 625 F.3d McCourt United States substantive Cir.2010), (8th review of videos limited number Given an the sentence duration, do not we reasonableness minimal and their discretion, States see jury abuse to the publication their find that Cir.2012). 317, 322 700 F.3d Spencer, prejudice. unfair constitutes Here, the assertion rejected have McCourt, at 1092-93. “We government require[s] process five-sec- ‘due only select published convincing evidence clear prove representa- as a jury clips ond video in- an so substantial produce[] facts videos. less-than-worst sample tive however, the state brief, Worthey states challenged the im- originally also 4. grossed, nolle charges since been have on the court enhancement of the five-level position argument moot. rendering charges thereby state court his facing he was basis that reply In his underlying conduct. same for the 1116 crease in [a defendant’s] [Guidelines to 180 months’ imprisonment, repre-

range.’” Waller, United States v. 689 sented a substantial downward variance 947, (8th Cir.2012) (alterations 958 below bottom of the 235-240 months original) (quoting United States v. Villare range. Guidelines “[W]here a district al-Amarillas, (8th 892, 562 F.8d Cir. court has sentenced a defendant below the 2009)); Lee, see also 625 F.3d at 1034-35 advisory guidelines range, it is nearly in- (explaining that “we [have] decided conceivable that the court abused its dis- squarely that process due never requires cretion not varying downward fur- still applying more than a preponderance-of- ther.” Spencer, 700 F.3d at 322 (quoting the-evidence standard for finding sentenc Moore, United v. States 581 F.3d facts, ing even where the fact-finding has (8th Cir.2009) curiam)). (per Given the an extremely disproportionate impact on of number and videos found on the the defendant’s advisory guidelines range” laptop, nature of the images and vid- (internal quotation marks and citation eos, and the evidence regarding Worthey’s omitted)). Accordingly, Worthey’s argu pattern of abuse, sexual the district court ment that the district required court was did not its abuse discretion in refusing to to apply the clear-and-convincing-evidence vary even further downward. standard fails. III. Conclusion supports record the district The conviction and

court’s findings sentence are af- regarding Worthey’s pat firmed. tern of sexually abusing his minor stepchil dren. At sentencing, of SHEPHERD, Judge, Circuit

fered videotape by statements Worthey’s concurring. stepchildren regarding history their of be ing sexually abused Worthey. I concur The dis in this court’s decision affirm- trict court found the ing statements sufficient conviction and sentence ly reliable to warrant all their respects. consideration. I write separately, however, See Bastian, States 603 F.3d comment on the denial of Worthey’s (8th Cir.2010) (no 466-67 abuse of motion his trial be moved from Little discretion in admitting three video inter Rock Jonesboro, his home and the loca- views of minor victims of sexual abuse tion of the giving events rise prose- to his found the court to be sufficiently cution, reli and to affirm that “it public is the able). The district court also considered policy of this Country that one must not two reports written concerning Worthey’s arbitrarily sent, be without consent, stepchildren and the psychological harm into a strange locality to defend himself they suffered from abuse, his sexual against powerful prosecutorial re- well as Ward’s testimony regarding his sources of the Government.” See United conversation earlier that day with Chan Stanko, States dra, reports whose regarding the children Cir.2008) (internal quotation marks omit- were consistent with the written reports ted). and the videotape statements. Based on IWhile agree that Worthey’s case is evidence, this the district court did not err distinguishable from Stanko and that the in applying the five-level enhancement. district court did not abuse its discretion in Nor did the district denying a change of venue case, in this I abuse its discretion in sentencing Worthey find suspect government’s5 reliance 5. It is difficult to discern from ber 2011 order whether it relied on the September court's Septem- 2011 order or possibil- motion on resisting America, STATES UNITED of secured absence that, due ity Plaintiff-Appellee courthouse, the in the Jonesboro hallways im- custody, Worthey in view jury would state-of-the- in the more trial plying HIGHTOWER, Defendant- Carlton not pres- would Rock courthouse Little art Appellant. risk. ent this No. 12-2222. record that from the First, not clear it is a defendant never see would juror Appeals, a Court States Little Rock in the tried custody when Eighth Circuit. Second, given a it is not courthouse. 18, 2013. Jan. Submitted: a from a results defendant

prejudice custody 2013. be- Filed: June seeing the defendant juror See United trial. a criminal during fore or 616, 617 Robinson,

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Case Details

Case Name: United States v. Dustin Worthey

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jun 17, 2013

Citation: 716 F.3d 1107

Docket Number: 12-2276

Court Abbreviation: 8th Cir.