*1 that she had contacted Con- pretending office and that Cardoza’s Wil-
gressman the letter to her.
liam Darton had written acts, Tomsha-Miguel performed
Ms. assuming or qualifies of which as
neither First, to be Darton.
pretending William using to herself
she wrote letter In
name of the fictitious aide Darton. so pretend did not assume or
doing, she
herself, else, anyone that she was or Second, letter to her
Darton. she sent the
client, pretending that she had contacted
Darton and that Darton had written the doing,
letter to her. so she did not herself, pretend or to her
assume
client, that she was Darton. America,
UNITED STATES
Plaintiff-Appellee, HARDRICK, Jr.,
Lawson aka Lawson
Hardrick, Defendant-Appellant.
No. 13-50195. Appeals,
United States Court of
Ninth Circuit. 4, 2014.
Argued and Submitted June 4, 2014. Sept.
Filed *2 Crowley (argued) Emily L.
Michael Crowley, Crowley Group, M. Law San Die- CA, go, Defendant-Appellant. for (argued), Assistant Kylе W. Hoffman Attorney, Bruce R. Castet- United States ter, Chief, Section, Di- Appellate Criminal Office, Attorneys’ office. A forensic examination found sev- vision, States CA, Plaintiff-Appellee. eral child each Diego,
San
computer. being the search warrant exe-
While was home, cuted at Hardrick’s Hardrick admit- using file-sharing program ted to Li- *3 pornography, but he meWire download REINHARDT, having pornogra- denied downloаded child Before: STEPHEN NOONAN, phy. and MARY H. Hardrick said that sometimes he T.
JOHN
MURGUIA, downloaded files with innocuous names Judges. Circuit only to the file open and find MURGUIA; by Judge Opinion Once, “Play he downloaded a file titled REINHARDT; by Judge Concurrence Ball,” which turned out to be a video of by Judge NOONAN.
Concurrence kids, high probably,” school “all over in the a having sex bleachers of stadium.
OPINION that Hardrick admitted he had also seen
MURGUIA, Judge: Circuit a pоrnography, child video titled “Father Does,” similar, something involving Hardrick, guilty Jr. was found Lawson four-year-old. Questioned whether there knowing- trial of two counts of jury after a any child pornography was on his home- depictions of minors ly receiving visual moment, computers office at the Hardrick in sexually explicit in conduct vio- engaged responded, anything “Therе could be on 2252(a)(2). ap- § On lation of 18 U.S.C. no, anything. But I wouldn’t swear to it.” at challenges Hardrick the admission peal, Hardrick was indicted on two counts of possessed of evidence that he his trial knowingly receiving depiction a visual of a videos for which pornography other child engaged sexually explicit minor conduct charged. Hardrick also сhal- he was 2252(a)(2) § in violation of 18 U.S.C. sufficiency government’s of the lenges the a visu- knowingly possessing two counts of knowingly evidence that he received depiction engaging al of a minor sexual- pornography videos for which he two ly explicit conduct violation of 18 U.S.C. jurisdiction charged.
was We have under 2252(a)(4)(B).1 § Hardrick went to trial § and we affirm. 28 U.S.C. knowing receipt counts.
I. court denied Hardrick’s mo- The district tion in limine to exclude evidence of the Department March other, uncharged Internet Security
Homeland identified two (IP) computers at Har- on his home-office from
Protocol addresses located found The dis- government’s case-in-chief. making por-
drick’s home that were agreed trict court with the
nography Agents available for download. under that the evidence was admissible computers
seized the two associated with 404(b) it home Federal Rule of Evidence because
the IP addresses from Hardrick’s "9yo littlegirl dis- Ddoggprn.jpg.mpg” and
1. The file the videos that Hardrick names of (the receiving charged knowingly PART2—Pussy was with yng plays her sweet cunt— videos) "pthc boy were fucks (2min7sec) (orig duogill) licking now —little —reel- 4yo girl pussy_R@ygold_PTHC_ licks moms preteen young kiddie kiddymov lolita incest Pedo_Hussyfan_Babyshvid_Zadoom- ddoggprn.mpg.” porno xxx sex Childfugga_Lolita_Kiddy_ChildPorn_Illegal_ limiting instruc- knowingly give contemporaneous Hardrick that prove
tended to videos and of the during presentation
received the child tion mistakenly or acci- that he had
disprove evidence. files. The district dentally downloaded examiner examined The forensic who would that evidence court concluded computers thе two home-office testified overly prejudicial under Federal not be that one of the child govern- because the Evidence 403 Rule of in a found on both was saved it would elicit “brief agreed that ment computer, different folder on each which by agent the case commentary [the virus, computer he had never seen a Tro- only images” werе not the charged videos] horse, jan Similarly, pop-up or e-mail do. computers and would Hardrick’s found on that, had the forensic examiner testified jury. uncharged videos to the not show accident, by the video been downloaded Dur- one-day jury trial. Hardrick had not have been saved to different would *4 govern- before the ing the lunch recess on comрuters. folders two 404(b) evidence, introduced the the
ment told Hardrick’s counsel that
district court The forensic examiner further testified point trial comes a on during “if there that the “thumbcache”2 on one of Har- instruction, you limiting that awant of computers drick’s showed that one give and then I would please let me know Questionable videos from the Videos list that.” opened govern- had and bеen viewed. The admitted into evidence ment also admitted a list of the “most government
The (MRU) Videos,” “Questionable recently
a document entitled used” files from one of the the hard drive location and file computers,
which listed which showed most recent- videos found on Har-
name of the nine ly opened computer. files on the Har- computer. first Each of the nine
drick’s many drick’s MRU files included sexually explicit clearly
videos had a title suggesting they with titles that contained the video contained child
signaling pornography. pornography. Seven of these nine videos evidence, At the close of the district government The uncharged
were videos. gave slightly court modified version of a document also admitted into evidence Jury Ninth Circuit Model Criminal In- Movies,” “Questionable listed titled which struction 4.3. The court instructed the explicit referring the six videos with titles jury: to minors found on Hardrick’s second com- puter. of these videos were also on Five You have heard evidence that the De- list, Questionable including one Videos fendant committed other acts not charged of the two videos. charged may Yоu consider this here. “limiting I call a evidence—this is what government testimony
The elicited from may instruction.” You consider this evi- agent
a case that all of the videos on the bearing, any, for its if on the dence list contained child
Questionable Videos intent, question of the Defendant’s played the The mistake, identity, charged jury knowledge, absence videos for thе but did not for no other
play uncharged videos. Hardrick’s absence of accident and may You not consider this evi- purpose.
counsel did not ask the district court to opened images
2. that have been The forensic examiner testified that Win- dows have a “thumbcache'' folder Explorer. Windows that contains small "thumbnail files” of the 1055 knowledge of the crime for which the “need not be similar to the guilt dence of act long prior as as the act was is now on trial.
Defendant one which would tend to make the exis- included the model instruc- Hardrick had knowledge tence of the defendant’s more jury instructions and proposed
tion in his probable than it would be without the evi- object given. as to the instruction did Fuchs, dence.” United States v. 218 F.3d guilty on jury The found Hardrick both (9th Cir.2000) (internal quotation 965 Hаr- The district court sentenced counts. omitted). marks If the four-part test prison, 120 months in a below- drick to satisfied, the evidence is admissible unless timely ap- Hardrick Guidelines sentence. probative substantially “its value is out- pealed. weighed by danger preju- of ... unfair
II. 403; United States dice.” Fed.R.Evid. Blitz, (9th Cir.1998) 151 F.3d 1008 review for abuse of discretion We (observing that when evidence “satisfies prior court’s admission of acts the district test, four-part the district court should States v. Ramirez-Ro evidence. prejudicial admit the evidence unless its (9th Cir.2004). bles, F.3d impact substantially its outweighs proba- of discretion the
We also review abuse (internal quotation tive value” marks omit- balancing court’s under Federal district ted)). probative Evidence 403 of the val Rule of (1) prior against acts evidence
ue of the argues appeal Hardrick that the prejudice unfair to the defen
danger of district court abused its discretion in its *5 Curtin, v.
dant. United States 489 F.3d balancing probative of the value of the Cir.2007) (en banc). (9th
935, 943 uncharged-video against evidence the dan- (2) him, ger prejudice of unfair to and a prior Evidence of defendant’s by giving the district court erred an insuf- conviction, wrong, or other act is inadmis 404(b) limiting ficient on the instruction charac prove sible to the defendant’s bad by another failing give evidence and to to commit the propensity
ter or sponte instruction sua limiting when the Vo, offenses. United States v. 413 F.3d 404(b) evidence was admitted into evi- Cir.2005). (9th However, 1010, 1017 evi dence. non- prior dence of a act is admissible for mo distriсt court’s determination
propensity purposes, proving “such as The 404(b) intent,
tive, of evi opportunity, preparation, plan, probative that the value mistake, identity, outweighed danger or dence of unfair
knowledge, absence of 404(b). an of prejudice
lack of accident.” Fed.R.Evid. to Hardrick was not abuse 404(b) uncharged is admissible if it discretion. The videos were
Rule evidence States v. knowledgе and rel United four-part probative a test. of Hardrick’s
satisfies (9th 983,
Montgomery, 150 F.3d to his defenses either that he down 1000 Cir. evant
1998). 404(b) accidentally evi while down proponent The of the loaded “(1) legal or other files on loading
dence must show that the evidence LimeWire, or that a hacker had download
proves a material element of the offense Sеe, e.g., charged, computer. now ed videos to his
for which the defendant is Schene, 627, v.
(2) intent, is similar to United States F.3d 643 prove if admitted to 543 Cir.2008) (3) (10th court’s charged, (affirming on suffi district
the offense is based (4) evidence, uncharged
cient
and
is not too remote
admission of
Ramirez-Robles,
proving the de
images
purpose
time.” 404(b) United prove knowledge); to fendant’s intent and
Rule evidence offered
1056 (9th Salcido, 729, not how the F.3d 735 Hardrick has demonstrated v. 506
States curiam) district court committed reversible error
Cir.2007) (affirming district (per correct by giving аppropriate, legally sexually of defendant’s
court’s admission proposed. model instruction that Hardrick messaging for the instant chats explicit Unruh, F.2d See United States v. 855 the defendant’s knowl- purpose proving of (9th Cir.1987) 1363, (holding that dis- 1377 Long, 328 edge); States F.3d United 404(b) in- incomplete limiting trict court’s (D.C.Cir.2003) (affirming dis- 663-65 not because struction did warrant reversal uncharged trict court’s admission оf district court told defense counsel what pornography photographs found the de- limiting give instruction it would and de- purpose proving home for the of fendant’s object request fense counsel did not a intent). possession
the defendant’s instruction). specific more addition, the vid- the district court limited by permitting the prejudicial
eos’ effect Hardrick did nоt ask the district agent provide
case “brief commen- give limiting during court to instruction 404(b)
tary” evidence, the location and file names of the presentation of the permitting gov- not and it is “well-settled that where no limit
other videos and ing requested concerning instruction is evi jury. to show the videos to the
ernment acts, of Ganoe, dence of other criminal the failure
See, e.g., States v. 538 F.3d United give the trial court to such an instruction (9th Cir.2008) (affirming admis- sponte sua not reversible error.” Unit
sion of where Inc., Multi-Mgmt., ed States v. 743 F.2d district court limited the Cir.1984). (9th govern The
playing only a few seconds of several video
argument
ment’s
is well-taken that defense
limit-
clips).
gave
The district court also
may
strategic
counsel
have had
reasons for
ing instruсtion at the close of the evidence.
asking
give
the district court
(ob-
Montgomery,
See limiting during presenta instruction serving limiting weighs that a instruction namely, tion of the de evidence— admissibility prior favor of the act may fense counsel not have wanted to evidence). draw attention to the evidence. Cf. *6 argument Hardrick’s that this in Restrepo, v. States 884 F.2d 1296-97 prej
struction was insufficient to limit the (9th Cir.1989) (rejecting appellant’s argu him that
udice to the district court sponte ment that the district court’s sua 404(b) given contemporaneous
should have lim limiting instruction on evidence “un
iting sponte unpersua duly emphasized instruction sua prior the evidence of acts”). do not fault the district court requested sive. Hardrick the dis We —and giving limiting for not instruction sua gave
trict court Model Circuit —Ninth sponte on the evidence without a 4.3, Jury Criminal Instruction which in request from defense counsel. jury
structs the that it has heard evidence
of the defendant’s other acts and that it Accordingly, we conclude that the dis-
may that consider evidence for limited properly trict court exercised its discretion Although
purposes. Hardrick did not re un- when it admitted the evidence of the it,
quest the court tailored district the charged pornography child videos found on to list the purposes
instruction limited computers. Hardrick’s jury
which the could the un consider III. intent, charged knowledge, identi videos— mistake,
ty, absence of and absence of We review de novo the sufficien object. cy underlying
accident—and Hardrick not of the evidence a conviction. did Schales, 965, 974 on Hardrick’s computеr v. 546 F.Sd first with States
United
(9th Cir.2008). clearly indicating must affirm the convic file names that the file We “unless, in the viewing the evidence contained child
tion There were sustaining the ver
light most favorable six videos on Hardrick’s second computer
dict, have rational trier of fact could no with similar file names. The videos had of the crime the essential elements days
found been on different downloaded and at reasonable
beyond times, doubt.” making unlikely different that (9th Budziak, 1105, 1108 697 F.3d
States their on his presence computers was the
Cir.2012). the at hold that evidence We computer result of a hacker or virus. And that Hardrick prove
trial was sufficient one of the child videos was pornog the
knowingly received two computers saved on in both different loca- no though videos even there was
raphy The tions. forensic examiner testified that evidence that he had downloaded
direct virus, cоmputer he had never seen a Tro- the files.
watched horse, jan pop up or e-mail save the same places file in different computers. on two
The circumstantial evidence of Viewing this circumstantial evidence knowledge was sufficient
Hardrick’s light most govern- favorable to the jury’s
support verdict. See United case, Budziak, ment’s 697 F.3d at we Barajas, v. Cordova 360 F.3d
States Cir.2004) concludе that it was sufficient to (9th sustain (recognizing that “cir Hardrick’s convictions. evidence alone can be suffi
cumstantial guilt”). to demonstrate a defendant’s
cient IV.
First, government produced evidence
that Hardrick had dominion and control The district court did not abuse its dis- computers on which the child
over by admitting cretion evidence of the un-
pornography videos were found. The com videos, and the
puters were located Hardrick’s home at trial support evidence was sufficient to
office. Hardrick admitted that his son and Accordingly, Hardrick’s convictions. we
daughter living his home used their own AFFIRM the district court. in Har-
computers, REINHARDT, Judge, Circuit The produced
drick’s office. concurring: that L.
evidence “Lawson Hardrick” general
Windows account was the account Noonan, Judge Like I concur in the ly computers. in use on both And all of Also, of the court. like opinion unanimous the e-mail addresses associated with Noonan, Judge I am disturbed about the account were Hardrick’s. Windows practical impact
Second, number, law-abiding timing, upon and location laws otherwise individu- *7 however, agree, on the I not that advertis- pornography
of the child als. do to ing legal consequences were inconsistent with Har- is a solution Rather, accidentally problem. my that he had it is view that
drick’s defenses most, in if pornography “psychological impairment” the child is
downloaded all,
or that a hackеr had downloaded child not cases the cause of the criminal treatment computer psychiatric videos to his with- conduct. Whether knowledge.
out Hardrick’s The number of rather than incarceration would be response by state authorities is a computers suggested proper
videos on the two hope given that I would be
that the two videos had not been matter would un- consideration than it has accidentally.
downloaded There were nine more serious in- society should Surely twenty of five to ous mental illness who
til now. sentences in viewing attempt offense of to treat a constructive
years for a first stead not the solution. See 18
pornography are and humane manner. 2252(b)(1). mandatory are § Nor
U.S.C. years forty of fifteen to
sentences NOONAN, Judge, concurring: Circuit second. id. See Judge Murguia’s opinion. I concur рro- not with those who
My concern is pornography for or distribute child duce I for further write to underline need willfully individuals gain. financial Such a crime actual discourage action to whose injury to the most vulnerable do serious commission extent is unknown but whose society and deserve what- members of our increasingly prosecuted as a fed is serious provides. ever the law Cer- punishment thought As out in a pointed eral offense. sympathy can have much tainly no one Gelber, by ful communication Alexandra upon young children prey with those who Chief, Deputy Exploitation Assistant Child in- in order to benefit themselves. Those Obscenity Di and Section of the Criminal ordinarily by dividuals are motivated whol- Department vision of the of Justicе: Those ly they perfectly interests that are selfish possessing, convicted of the crimes of re contrast, controlling. of those capable ceiving, distributing only pornography, view child includ- who typically have no criminal record but “in exchange computer video ing those who teachers, coaches, professors, clude fa files, are in all likelihood the victims of a thers, doctors, lawyers, parents, foster prevents form of mental illness that them owners, adoption agency and more.” See they controlling from what would other- Gelber, “A Response Alexandra Reluc only unhealthy understand to be not
wise 1, 2009), (July http://www.justice.gov/criminal/ceos/downloads/ReluctantRebellionResponse.pdf. tant Rebellion” 7 impulses impulses great but that result Obvi harm to the most innocent members of our y ousl society. , history lack of criminal is not a defense. profess
I not to know the solution to do equally It is obvious that this kind of de problem of how cure the illness that and, normally lawabiding fendant unless is law-abiding people
causes otherwise to en- from suffering psychological impair some
gage viewing in the of child Judge probability ment —the Reinhardt ef lengthy I know sentences such as fectively develops expected be —could (and case, years ten
the one this below obey the law in this area if aware of its that) offense, guidelines at for a first if provisions especially aware of its
cannot be the answer. Why sanctions. should penalty? not the law and advertise its here, nothing say
There is new in what I stop Better to crime’s commission than
but it that I problem believe deserves consequences. mop the than given
more attention we have thus Many peo-
far. lives of otherwise decent
ple by have ruined psychological been
problems they presently capable are Incarcerating will not
controlling. them
end the horror of or the
injury it on innocent children. All inflicts accomplishes to create another class of
people with ruined lives—victims of seri-