UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MICHAEL B. CLARK, Defendant-Appellant.
No. 20-5722
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
January 24, 2022
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 22a0013p.06. Argued: October 20, 2021. Decided and Filed: January 24, 2022. Before: BATCHELDER, LARSEN, and READLER, Circuit Judges.
Appeal from the United States District Court for the Eastern District of Kentucky at Covington. No. 2:18-cr-00048-1—David L. Bunning, District Judge.
COUNSEL
ARGUED: Gregory A. Napolitano, LAUFMAN & NAPOLITANO, LLC, Cincinnati, Ohio, for Appellant. Elaine K. Leonhard, UNITED STATES ATTORNEY‘S OFFICE, Ft. Mitchell, Kentucky, for Appellee. ON BRIEF: Gregory A. Napolitano, LAUFMAN & NAPOLITANO, LLC, Cincinnati, Ohio, for Appellant. Charles P. Wisdom, Jr., James T. Chapman, UNITED STATES ATTORNEY‘S OFFICE, Lexington, Kentucky, for Appellee.
ALICE M. BATCHELDER, Circuit Judge. Following his conviction for distribution of child pornography, Appellant Michael Clark appeals, arguing that there was insufficient evidence to support the jury‘s verdict and that the district court committed various evidentiary errors that require reversal. Because Clark‘s arguments lack merit, we AFFIRM the judgment of the district court.
I.
Michael Clark was convicted by a jury on five counts of knowingly distributing child pornography in violation of
In 2017, Steven Kush, an undercover police detective in Campbell, Kentucky, used a computer program to search for individuals who were illegally trading and downloading child pornography on BitTorrent, a peer-to-peer file-sharing network. Kush‘s computer program was set up to scan for, and then download, potential illegal images and videos from sources located in Kentucky. The program was unique in that it performed “single-source download[s],” meaning that it “single[d] out a single peer on the network based on their IP address.” By contrast, a download by a typical user on a file-sharing network would receive multiple pieces of a file from several different sources.
At 6:00 a.m. on April 5, 2018, Benner and other officers executed the search warrant. Clark was home, along with his wife, daughter, and grandson. The officers seized multiple computers, including an Apple MacBook Pro laptop, an Acer Aspire laptop, and a Compaq Presario laptop. The officers interviewed Clark and recorded the interview. They told Clark that he was not under arrest, and they did not give him Miranda warnings. Clark told the officers that the MacBook laptop was his work computer. Later that day, the officers interviewed Clark‘s adult son, Josh Clark, along with Josh‘s roommate and family friend, Cody Thierauf, at their apartment.
The three computers seized in the search were sent to Tom Bell, a forensic examiner in the Cyber Crimes Branch of the Kentucky Attorney General‘s Office. Bell‘s examination of the MacBook computer found 295 images and 62 videos of child pornography, a user profile named “Mike,” and evidence suggesting the former presence of additional illegal content and file-sharing programs. Similarly, Bell‘s examination of the Acer and Compaq computers found evidence of file-sharing programs, that both had user profiles named “Mike,” and the former presence of search terms associated with child pornography. The Acer and Compaq computers, however, had been last logged into in 2007 and 2009, respectively.
Clark was convicted by a jury based on the evidence on the MacBook computer. The district court sentenced him to 192 months in prison, followed by twenty years of supervised release. Clark timely appeals.
II.
On appeal, Clark argues that we should reverse his conviction for three reasons, none of which is persuasive.
A. Sufficiency of the Evidence
Clark claims that his conviction for distributing child pornography,
“Any person who . . . knowingly . . . distributes[] any visual depiction [that involves the use of a minor engaging in sexually explicit conduct] using any means or facility of interstate or foreign commerce . . . shall be punished as provided [herein].”
A conviction is supported by sufficient evidence if, “after viewing the evidence
The government devotes a substantial portion of its brief to arguing that Clark‘s challenge is to the jury instructions, a challenge that he failed to preserve by not objecting to them in the district court. A careful review of Clark‘s briefing, however, shows that he does not challenge the jury instructions. Rather, Clark takes issue with the sufficiency of the evidence. Because these are separate issues, Clark‘s concessions regarding the jury instructions are immaterial to his present claim. And to the extent that the government argues that Clark waived or forfeited his sufficiency claim, we find that he did not.2
1. “Means or Facility of Interstate Commerce” Element
Clark challenges the interstate-commerce element of
Clark‘s argument implicates important but relatively simple questions about what the interstate-commerce element of
We begin with the language of the statute. As noted,
In 2008, Congress amended the jurisdictional provisions of several child-pornography laws, including
Clark‘s argument that his child pornography did not pass through interstate wires—though dubious considering the structure, complexity, and interconnectedness of the internet—is therefore inconsequential. By its terms,
(finding that, after
There are, however, two issues worth noting. First, some circuit courts do not distinguish between the current and prior versions of the child-pornography laws. In interpreting the pre-amendment versions of §§ 2251, 2252, and 2252A, those courts found that transmitting child pornography over the internet was tantamount to moving the pornography across state lines7—
which thereafter foreclosed arguments like Clark‘s in those circuits, even after the 2008 amendment.8 On occasion, we have suggested that we agree that an internet transmission implicates interstate travel. See United States v. Thomas, 74 F.3d 701, 706–10 (6th Cir. 1996); United States v. Mellies, 329 F. App‘x 592, 605–06 (6th Cir. 2009); United States v. Napier, 787 F.3d 333, 346–47 (6th Cir. 2015); Pina, 724 F. App‘x at 422–23. But because the current version of
Second, evidence of internet use is not the only method by which the government can prove the interstate-commerce element of
Nevertheless, for the reasons previously stated, sufficient evidence exists to support the interstate-commerce element of Clark‘s conviction under
2. “Knowing Distribution” Element
Next, Clark challenges the “knowing distribution” element of
We have repeatedly held that even passive distribution of known child pornography constitutes distribution under
We have also found support for this position in our application of
Clark does not dispute that he knowingly used peer-to-peer software or that the child pornography on his computer was in his shared folder. Absent “concrete evidence of [Clark‘s] ignorance” that his program was set up to share, these concessions alone satisfy the knowing-distribution
Therefore, sufficient evidence supports the interstate-commerce element and the knowing-distribution element of Clark‘s conviction.
B. Evidentiary Errors
Next, Clark argues that the district court committed various evidentiary errors that require reversal. Each will be addressed in turn. We find no errors or abuses of discretion.
1. Clark‘s Recorded Interrogation
Clark challenges the admission of his recorded interrogation with Officer Benner, which Clark alleges was obtained in violation of his Fifth Amendment rights because he was not given Miranda warnings. The government responds that Clark waived his Miranda argument because Clark conceded during the trial that he was not under arrest and that the police did not have to give him Miranda warnings. In the alternative, the government argues, first, that we should decline to review Clark‘s claim because it turns on unresolved questions of fact and, second, that the interrogation was not custodial. We find that Clark waived his Miranda claim.
“[W]aiver is the intentional relinquishment or abandonment of a known right.” United States v. Olano, 507 U.S. 725, 733 (1993) (quotation marks omitted). It is different from mere forfeiture, which “is the failure to make the timely assertion of a right.” Id. We have found that a defendant waives an argument by, for example, raising and then abandoning it, United States v. Denkins, 367 F.3d 537, 543 (6th Cir. 2004), stating in a brief that a proposition is not disputed, United States v. Walker, 615 F.3d 728, 733 (6th Cir. 2010), or conceding it in open court and then changing positions on appeal, United States v. Abdi, 827 F. App‘x 499, 506 (6th Cir. 2020). On the other hand, we have found that a defendant forfeits an argument by, for example, failing to make it before the district court, United States v. Montgomery, 998 F.3d 693, 698 (6th Cir. 2021), only summarily raising it without a developed argument, Automated Sols. Corp. v. Paragon Data Sys., Inc., 756 F.3d 504, 521–22 (6th Cir. 2014), or acknowledging it without “press[ing] it,” Jones Bros., Inc. v. Sec‘y of Labor, 898 F.3d 669, 677 (6th Cir. 2018).
Clark never asserted his Miranda claim before the district court. He did not bring a pretrial motion to suppress his recorded statements, as required by
Clark, therefore, conceded his Miranda claim in a manner that we have found evinces an intentional relinquishment of a known right. See United States v. Soto, 794 F.3d 635, 655 (6th Cir. 2015) (“[W]e do not treat the failure to file a [Rule 12(b)] motion as a waiver unless the circumstances of the case indicate that the defendant intentionally relinquished a known right.“). Clark‘s conduct was not merely passive. He made a “plain, explicit concession on the record addressing the precise issue later raised on appeal,” and therefore affirmatively waived his claim going forward. United States v. Mabee, 765 F.3d 666, 673 (6th Cir. 2014); Abdi, 827 F. App‘x at 506.
But even if Clark did not waive his Miranda claim, he certainly forfeited it. In such a case, we review the admission for plain error. United States v. Ramamoorthy, 949 F.3d 955, 962 (6th Cir. 2020). A plain-error review of a forfeited suppression claim is “permissive, not mandatory.” Id. (quoting Olano, 507 U.S. at 735). We have declined to review such claims when they “turn[] on unresolved questions of fact.” Id. This is because “[s]uppression claims typically present fact-oriented issue[s]” that appellate courts “are not equipped to decide . . . in the first instance.” Id. at 962–63 (cleaned up). Clark‘s claim, like most suppression claims, implicates these concerns. He asks us to decide whether he was subject to custodial interrogation when he was questioned by Officer Benner. Resolving that question depends on the “totality of the circumstances” and whether a reasonable person in Clark‘s position would have felt free to leave—inquiries that necessitate the “balancing [of] a series of factors, no one of which is determinative, and all of which are highly dependent upon what transpired . . . that day.” Ramamoorthy, 949 F.3d at 963; see United States v. Brooks, 379 F. App‘x 465, 473 (6th Cir. 2010). The district court is better suited to develop these fact-intensive questions. See United States v. Simer, 835 F. App‘x 60, 68 (6th Cir. 2020) (declining review because appellate courts are “ill-equipped to re-create the fact-intensive and focused nature of a suppression hearing“). And because these questions were not raised earlier, the district court made no factual findings relevant to them and neither party had the “incentive to develop the factual record” on them. Ramamoorthy, 949 F.3d at 963 (quotation omitted); see United States v. Finch, 998 F.2d 349, 355 (6th Cir. 1993) (declining review because “[a]lthough the facts appear to have been well developed, it is possible that the failure of the defense to raise the issue may have influenced the manner in which the evidence was developed“). Therefore, even if Clark‘s Miranda claim was not waived, it turns on unresolved questions of fact, and we decline to review it.
2. Old Computers
Clark argues that the district court erroneously allowed the government to present evidence of two old computers found in his home, claiming that such evidence was inadmissible under Rules 404(b) and 403 of the Federal Rules of Evidence.
During the search of Clark‘s home, law enforcement seized an Acer and a Compaq computer, among other devices. When those two computers were forensically examined, Tom Bell found evidence of peer-to-peer software and deleted data that suggested the former presence of child pornography and related searches. Bell testified that “[t]hese hits were also found in a folder named ‘Mike.‘” Clark moved to exclude this evidence, but the district court denied the motion, finding the evidence
Rule 404(b).
The evidence concerning the Acer and Compaq computers is probative of a material issue other than character. It tended to show that Clark—whose given name, after all, is Michael—was the individual responsible for distributing child pornography (i.e., identity and absence of mistake) and to disprove his defenses that (1) someone else was the perpetrator, and (2) he was a technological novice. As the district court noted, these are permissible purposes under Rule 404(b). We have “overwhelmingly approved of the admission of ‘other acts’ evidence” when identity is a material issue. United States v. Perry, 438 F.3d 642, 648 (6th Cir. 2006); see, e.g., United States v. Keith, 502 F. App‘x 453, 455 (6th Cir. 2012) (affirming the admission of prior convictions to “show that [defendant] was the individual responsible for the child pornography found on the computer“). The evidence was properly admitted under 404(b).
Rule 403.
As explained, the evidence was highly probative of material issues. And with this in mind, the evidence did not present an overwhelming danger of unfair prejudice. The district court gave a clear limiting instruction to the jury that it could use the evidence for only limited, permissible purposes. The court repeated this instruction while giving the jury charge. Given these instructions and the importance of the computer evidence, any remaining prejudice was limited and did not invite the jury to decide the case on an improper basis. United States v. Lang, 717 F. App‘x 523, 539 (6th Cir. 2017) (“[Rule 403] only contemplates ‘evidence which tends to suggest a decision on an improper basis’ or which ‘hit[s] . . . below[] the belt.‘” (quotation omitted)); United States v. Lattner, 385 F.3d 947, 958 (6th Cir. 2004); Keith, 502 F. App‘x at 455. Because the district court properly weighed the evidence‘s probative value against its limited prejudicial effect, it did not abuse its discretion under Rule 403.
The Government‘s Closing Argument. Clark also contends that the government improperly told the jury during
3. Fabricated Invoices
Clark argues that the district court erroneously admitted fabricated invoices, which were submitted by him in a prior court filing, as evidence of his consciousness of guilt. Clark argues that the invoices were not sufficiently connected to him and, therefore, not probative of his state of mind.
Prior to trial, Clark filed a motion in limine seeking to exclude evidence from the Acer and Compaq computers that showed that child pornography existed on them as early as 2005. Clark attached to the motion an affidavit from Margaret Allen (his mother-in-law) and two invoices from a computer store. The attachments purported to show that Allen‘s late husband purchased the computers in 2009 and 2012, respectively, and that Clark did not receive them until 2014. The district court denied the motion, however, after the government provided evidence that the invoices were fabricated. At trial, the district court allowed the government to admit the invoices and present testimony concerning their fabrication. The district court instructed the jury that if they believed that the invoices were fabricated, such evidence could be used to establish Clark‘s consciousness of guilt. We review de novo the district court‘s legal determination that the evidence was admissible for a proper Rule 404(b) purpose, and we review for abuse of discretion the district court‘s Rule 403 determination. Rayborn, 495 F.3d at 342.
Rule 404(b). Typically, evidence of a defendant‘s consciousness of guilt is admitted under Rule 404(b) when he flees the scene, attempts to bribe or threatens adverse witnesses, tampers with evidence, or expresses his suicidal ideations. United States v. Cody, 498 F.3d 582, 591 (6th Cir. 2007); United States v. Copeland, 321 F.3d 582, 598 (6th Cir. 2003); United States v. Munnerlyn, 202 F. App‘x 91, 95 (6th Cir. 2006). Fabricating evidence is a form of tampering with evidence and the converse to spoliation of evidence. And as such, evidence of it is admissible to prove a defendant‘s consciousness of guilt.11 United States v. Snyder, 789 F. App‘x 501, 510–12 (6th Cir. 2019) (admitting evidence of defendant‘s post-indictment loan agreement to show potential fabrication of evidence and, thus, defendant‘s consciousness of
guilt); see Copeland, 321 F.3d at 598 (“This court has held that evidence that has the tendency to demonstrate a defendant‘s consciousness of wrongdoing is admissible to establish the defendant‘s guilt.“).
Clark‘s fabricated invoices were admissible under Rule 404(b) to show his consciousness of guilt. Clark, through his attorney,
Rule 403. Nor did the district court abuse its discretion under Rule 403.
4. Clark‘s Computer Knowledge
Clark argues that the district court erroneously admitted evidence and permitted testimony concerning his computer knowledge. During trial, the government called Cody Thierauf to testify that Clark had a sophisticated knowledge of computers. Thierauf was a longtime friend of Clark‘s son and had spent a lot of time at Clark‘s home during the years. Thierauf testified that he was familiar with Clark‘s computer knowledge and that, on one occasion in 2017, he and Clark had a Facebook conversation in which Clark asked him how to hack into a website and how to “edit an SQL file.” Over Clark‘s objection, the district court admitted screenshots of this Facebook conversation. We review de novo the district court‘s legal determination that the evidence was admissible for a proper Rule 404(b) purpose, and we review for abuse of discretion the district court‘s Rule 403 determination. Rayborn, 495 F.3d at 342.
Rule 404(b). Clark argues that Thierauf‘s testimony and the Facebook exhibit were improper Rule 404(b) evidence. This argument fails. The Facebook exhibit was admissible as an admission of a party-opponent under Rule 801(d)(2) and not as Rule 404(b) evidence.
Rule 403. Clark also argues that the district court abused its discretion under Rule 403. But in his opening brief, Clark does not specify how evidence of his computer knowledge would cause unfair prejudice. Instead, he attacks the probative value of the evidence. He argues that such evidence is “not relevant to the crimes at issue,” and later argues that it has minimal probative value because “peer-to-peer programs do not require particularized or sophisticated knowledge to operate.” The record does not support these arguments. The distribution of child pornography via peer-to-peer file-sharing networks requires a high degree of technical ability. And for the reasons stated above, Thierauf‘s testimony and screenshots of his Facebook conversation with Clark were highly probative of a crucial issue: Clark‘s computer knowledge. The probative value of this evidence was not substantially outweighed by its limited prejudicial effect. We find no abuse of discretion.
5. The Limited Cross-Examination of Cody Thierauf
Clark claims that the district court violated his Sixth Amendment right by limiting his cross examination of Cody Thierauf. At trial, Clark sought permission to cross-examine Thierauf concerning Thierauf‘s production and distribution of pornography depicting Thierauf and his adult girlfriend. The district court did not permit this line of cross-examination, finding it “inappropriate under [Rule 403].” We review the district court‘s decision for abuse of discretion. United States v. Callahan, 801 F.3d 606, 623 (6th Cir. 2015).
The Sixth Amendment protects a criminal defendant‘s right “to be confronted with the witnesses against him.”
Because Thierauf‘s consensual sexual behavior with his adult girlfriend was not relevant, the district court properly limited Clark‘s proposed line of questioning. Van Arsdall, 475 U.S. at 679; see, e.g., Farley v. Lafler, 193 F. App‘x 543, 547 (6th Cir. 2006) (prohibiting a proposed line of cross-examination that had “virtually no probative value“); United States v. Richards, 659 F.3d 527, 549 (6th Cir. 2011) (limiting the cross-examination
Clark claims that his cross-examination would have “impeach[ed] [Thierauf‘s] credibility” and revealed his improper motive for testifying against Clark. But because Clark fails to specify how Thierauf‘s perhaps embarrassing but nonetheless legal behavior relates to his credibility or motive to lie, this argument lacks merit. See Callahan, 801 F.3d at 623 (“[The Confrontation Clause] does not mean that the defendant is free to impeach a witness ‘in whatever way, or to whatever extent the defense might wish.‘” (quotations omitted)). Importantly, the district court did not limit the cross examination of Thierauf entirely. Clark‘s attorney was able to question Thierauf about his “knowledge of peer-to-peer networking” and his “interest in or . . . involve[ment] with . . . child pornography,” among other relevant information. Therefore, the district court‘s decision was not arbitrary, and it certainly was not disproportionate. See Michigan, 500 U.S. at 151. The district court did not abuse its discretion in limiting Theirauf‘s cross-examination.
C. Fundamentally Fair Trial
Finally, Clark claims that the cumulative effect of the trial errors rendered his trial fundamentally unfair. But because there were no trial errors, Clark‘s claim of cumulative error “fails for want of error.” United States v. Ledbetter, 929 F.3d 338, 365 (6th Cir. 2019).
III.
For the foregoing reasons, we AFFIRM the judgment of the district court.
Notes
(a) Any person who— . . .
(2) knowingly receives, or distributes, any visual depiction using any means or facility of interstate or foreign commerce or that has been mailed, or has been shipped or transported in or affecting interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, or knowingly reproduces any visual depiction for distribution using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or through the mails, if--
(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
(B) such visual depiction is of such conduct; . . . shall be punished as provided in subsection (b) of this section.
(a) Any person who— . . .
(2) knowingly receives, or distributes, any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, or knowingly reproduces any visual depiction for distribution in interstate or foreign commerce or through the mails, if—
(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
(B) such visual depiction is of such conduct; . . . shall be punished as provided in subsection (b) of this section.
(a) Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, or who transports any minor in or affecting interstate or foreign commerce, or in any Territory or Possession of the United States, with the intent that such minor engage in, any sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct, shall be punished as provided under subsection (e), if such person knows or has reason to know that such visual depiction will be transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed, if that visual depiction was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means, including by computer, or if such visual depiction has actually been transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed . . .
(d) (1) Any person who, in a circumstance described in paragraph (2), knowingly makes, prints, or publishes, or causes to be made, printed, or published, any notice or advertisement seeking or offering-
(A) to receive, exchange, buy, produce, display, distribute, or reproduce, any visual depiction, if the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct and such visual depiction is of such conduct; or . . .
(2) The circumstance referred to in paragraph (1) is that—
(A) such person knows or has reason to know that such notice or advertisement will be transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means including by computer or mailed; or
(B) such notice or advertisement is transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means including by computer or mailed.