UNITED STATES OF AMERICA v. EARL HARDY MORROW
No. 22-5060
United States Court of Appeals for the Tenth Circuit
August 21, 2023
78 F.4th 1172
HARTZ, Circuit Judge.
PUBLISH. Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 4:20-CR-00335-CVE-1).
Jeffrey Andrew Gallant, Assistant United States Attorney (Amy E. Potter, Assistant United States Attorney, District of Oregon, and Clinton J. Johnson, United States Attorney, Northern District of Oklahoma, on the brief), Office of the United States Attorney, Tulsa, Oklahoma, for Plaintiff - Appellee.
Before HARTZ, SEYMOUR, and MATHESON, Circuit Judges.
HARTZ, Circuit Judge.
Defendant Earl Hardy Morrow appeals his convictions for distribution, receipt, and possession of child pornography. See
Exercising jurisdiction under
I. BACKGROUND
Between January 23 and February 20, 2020, the Tulsa Police Department (TPD) used the BitTorrent peer-to-peer filesharing network to download multiple files of child pornography from a local IP address.1 One of these Torrent files,
TPD obtained a search warrant for a residence in Broken Arrow, Oklahoma, that was associated with the IP address from which they had downloaded the files. Mr. Morrow lived at that address with his brother Kory and his mother Karla. On February 27, officers executed the warrant. They took 20 electronic devices from the home.
Ten computers and digital-storage devices were seized from Mr. Morrow‘s bedroom. Five of those 10 devices were later found to contain over 4,000 illegal images and videos depicting the sexual abuse of children: (1) a password-protected, custom Diablotek desktop computer built by Mr. Morrow himself on which the qBitTorrent program and over 600 images and videos were stored; (2) a password-protected Acer laptop on which over 100 images and videos were stored; (3) a thumb drive (a small, portable digital-storage device) connected to a keychain holding Mr. Morrow‘s car keys, on which over 3,000 images and videos were stored; (4) a second thumb drive on which 5 videos were stored; and (5) a third thumb drive on which
Mr. Morrow‘s Diablotek desktop computer was the only device in the home on which was installed qBitTorrent, the program that had distributed the “Web Video Collection” Torrent file from the Morrows’ IP address to the police; the version number of the qBitTorrent program installed on the Diablotek computer matched the version number of the program to which the police had connected. And the Diablotek was also the only device containing the file itself. Forensic analysis showed that the file had been accessed multiple times on that device. On the Acer laptop, most of the illegal files were created on February 13 and 14, shortly after a new user profile and password were set up in Mr. Morrow‘s name. Other documents that Mr. Morrow admitted to authoring, including files of creative writing and a letter to a prospective publisher, were created under the same user profile on February 13, and the author of these files was identified as “Earl.” TPD analysts found neither viruses nor evidence of remote control (that is, hacking) on Mr. Morrow‘s computers.
The other 10 devices were seized from Kory‘s bedroom. From two of these, police later recovered 37 image files (but no videos) depicting the sexual abuse of
A grand jury in the United States District Court for the Northern District of Oklahoma indicted Mr. Morrow on one count of distribution and receipt of child pornography and one count of possession of child pornography. Kory was indicted on the same two charges but they were dismissed before Mr. Morrow‘s trial. The charges were tried to a jury in November 2021. Mr. Morrow was the sole witness for the defense. He denied downloading, distributing, or knowingly possessing the illegal photos and videos found on his devices. The jury convicted him on both counts.
We will include additional background as we discuss the specific issues raised on appeal.
II. DISCUSSION
A. Admission of Pornographic Anime as Other-Act Evidence
Mr. Morrow contends that the district court abused its discretion in admitting evidence that police recovered from Mr. Morrow‘s devices not only 4,000 illegal photos and videos but also 300 anime images depicting child sex abuse in cartoon form. (Such images are not covered by
Under
The determination of admissibility under Rule 404(b)(2) “involves a case-specific inquiry that is within the district court‘s broad discretion.” United States v. Cushing, 10 F.4th 1055, 1075 (10th Cir. 2021) (internal quotation marks omitted). The court‘s ruling will be upheld on appellate review “if it falls within the bounds of
2. Additional Background
Before trial the government submitted a notice of its intent to offer as evidence the pornographic anime files found on Mr. Morrow‘s devices. The government contended that the anime was admissible as res gestae3 or under Rule 404(b) as evidence that Mr. Morrow intended to engage in the charged crimes, that he knew the relevant search terms, and that it was no mistake or accident that depictions of real child abuse were also found on his devices. Mr. Morrow opposed admission of the evidence, contending that it was not res gestae and that the government‘s allegedly proper Rule 404(b)(2) purposes were a veneer obscuring its true intent: “to convince the jury that if [Mr.] Morrow possessed child erotica that depicts the animated sexual abuse of children, then it is more likely that he would possess child pornography.” R., Vol. I at 84 (internal quotation marks omitted). The district court did not rule on the matter before trial and the parties renewed these arguments at the outset of trial. The district court determined that the evidence was not res gestae and might not be admissible under Rule 404(b); it said that it would wait to see if Mr. Morrow asserted
Mr. Morrow took the stand as the first and only witness for the defense. Direct examination was very brief. He merely denied downloading or distributing child pornography, though he admitted having seen it accidentally. On cross-examination he said that no one else in the home regularly used his computers but also testified that he had witnessed his computer “doing all kinds of stuff by itself,” suggesting that this may have been a sign of hacking or the result of “the computer [being] fed false information.” Id. at 381–82. He also admitted to downloading anime using Torrent programs but described that anime as “[u]sually TV shows, slice of life, action, that sort of stuff.” Id. at 384.
At this point the government argued (at a sidebar conference) that Mr. Morrow had “open[ed] the door to [further questioning about the] types of anime and animation that [he] was downloading” from Torrent sites. Id. at 385. It argued that the evidence was relevant to show lack of mistake and to rebut any allegation that a virus or other user was responsible for the downloads. The court excused the jury and discussed the matter with counsel in open court. Mr. Morrow conceded that the government had offered a proper purpose for admissibility but disagreed that the evidence satisfied Rules 401 and 403. He further argued that the government was attempting to introduce the evidence to prove a propensity to download real child pornography based on his downloading similar animated images.
[T]he testimony has established[] that this exhibit that‘s at issue was located in the defendant‘s computer in the same place with the child pornography that he claims “don‘t know why it‘s there, don‘t know how it got there[.“] And so couldn‘t a jury reasonably conclude that his concession of downloading anime and placing it on his device next to child pornography provides a basis for them to conclude he knew about the child pornography.
Id. at 391.
The jury was recalled and Mr. Morrow retook the witness stand. The government asked him to describe the content of several anime child-pornography images. When asked if he was aware that approximately 300 such images were found on his desktop computer, he said only that he had “been told so, yes.” Id. at 400. He admitted to using a Torrent site called HorribleSubs to download anime. But he denied knowing how the 4,000 unlawful files got stored on his devices, saying that it was unlikely the result of a virus but likely the work of a hacker or someone with “physical access.” Id. at 408. He had no explanation of how any of the files had come to be found on the thumb-drive storage devices, which do not connect to the internet.
On rebuttal the government recalled Detective Jennings to testify about the pornographic anime. She said that she recovered over 300 such images from Mr. Morrow‘s Diablotek desktop and the thumb drive attached to his car keys. She also said that some of the anime files had file names indicating that they had been downloaded from HorribleSubs and that they had been viewed on a video player called VLC, which had also been used to view real child pornography contained on the same computer. At least some of the anime files were also saved in the same folder as some of the real child pornography.
The government moved to admit the anime images into evidence, arguing that, given Mr. Morrow‘s concession that he used Torrent programs to download anime and the similarities between the abuse depicted in the anime and the real child pornography, the anime rebutted Mr. Morrow‘s defense of mistake. Over Mr. Morrow‘s objection the court admitted the anime exhibit, telling counsel at a bench conference:
I conclude that the offer of [the anime exhibit] is for a proper purpose because the defendant has now invoked that he does not know why those are on his device, they‘re there by accident or mistake or otherwise, that they are closely situated to things that are at issue in this case, children pornographic images, and that the place of those and the timing of those at least is relevant under [Rule] 401 for the jury to consider whether they refute his assertion of mistake, accident, lack of knowledge. . . . The [Rule] 403 analysis [is] perhaps the most difficult but in light of the other content from his computer that‘s been admitted, I cannot find and do not find that its prejudicial effect substantially outweighs its probative value.
3. Analysis
We perceive no abuse of discretion in the district court‘s careful application of the four-prong Huddleston inquiry. Mr. Morrow suggests the court erred in its analysis on prongs one and three—that the anime evidence was not offered for a proper purpose under Rule 404(b) and that its admission resulted in unfair prejudice substantially outweighing any probative value. We are not persuaded.
The district court admitted the evidence to rebut Mr. Morrow‘s “assertion of mistake, accident, lack of knowledge.” Id. at 416. “[W]hen a defendant denies an element of the crime,” including the “knowledge” required for a conviction, “evidence of prior acts is admissible to rebut the denial.” United States v. Isabella, 918 F.3d 816, 841 (10th Cir. 2019). At trial, defense counsel did not dispute that the government had identified a proper purpose for admitting the anime.
Now, however, Mr. Morrow argues that the district court cannot have admitted the anime evidence for a proper purpose under Rule 404(b) because he did not open
But we think the district court got the analysis right. The gist of Mr. Morrow‘s defense was that he did not intentionally introduce the photos and images onto his computer. Whether they were introduced by accident (say, a computer glitch), a mistake (by himself or someone else), or intentional sabotage (by an “outside source“) is beside the point. Each possibility would render him innocent; and evidence inconsistent with those possibilities would point to his culpability.
In our view, the evidence that Mr. Morrow intentionally downloaded child-pornographic anime from a website he admitted to using and into the same folder that contained illegal child-pornography files helps rebut his claim that the charged material appeared by some accident, mistake, or act of an outside source. We have previously affirmed the admission of similar evidence for similar purposes. See United States v. Schene, 543 F.3d 627, 643 (10th Cir. 2008) (uncharged child pornography images admissible as other-act evidence because they showed “intent and knowledge“); United States v. Simpson, 152 F.3d 1241, 1249 (10th Cir. 1998) (uncharged child-pornography images admissible as other-act evidence “to prove that (1) [the defendant‘s] possession of child pornography on his computer was not a
Mr. Morrow‘s other challenge is that the admission of all 300 anime files was unfairly prejudicial and also heightened the risk that the jury would interpret the anime as evidence of his propensity to download real child pornography. In the context of Rule 403, unfair prejudice means “an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.”
In support of his argument that the anime was prejudicial and would be used for such an improper purpose, Mr. Morrow contends that two government statements to the court argued that the anime was relevant because it showed his propensity to commit the offense. In the pretrial notice of its intent to offer the anime evidence, the government asserted, among other things, that the evidence was relevant because “someone who is interested in and knowingly downloads cartoon child pornography is also likely to do the same with child pornography of real children.” R., Vol. I at 35. And in arguing to the court at sidebar that the evidence should be admitted to rebut Mr. Morrow‘s defense of mistake or lack of knowledge, the government argued (in part) that the evidence satisfied Rule 401 because “the vast majority of the [real]
B. Kory‘s Statements Against Penal Interest
Mr. Morrow argues that the district court erred in excluding statements against interest by his brother Kory that Mr. Morrow sought to admit under
1. Evidentiary Rules and Standard of Review
An unavailable declarant‘s prior statement is “not excluded by the rule against hearsay” if the statement is one that:
(A) a reasonable person in the declarant‘s position would have made only if the person believed it to be true because, when made, it . . . had so great a tendency to . . . expose the declarant to . . . criminal liability; and
(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as [a statement] that tends to expose the declarant to criminal liability.
The corroboration requirement of Rule 804(b)(3)(B) is included because “statements . . . tending to exculpate the accused are more suspect and so should have their admissibility conditioned upon some further provision insuring trustworthiness.”
We have said that “the close relationship” between the declarant and the defendant and “the inconsistencies in [the declarant‘s] statement,” are both “circumstances that counsel against the trustworthiness of the statement.” Id. at 1133; see United States v. Hammers, 942 F.3d 1001, 1011 (10th Cir. 2019) (similar). Also, “[w]hen there is proof the declarant knowingly lied in making the statement against penal interest, the statement would almost certainly be excluded for lacking corroboration of its trustworthiness.” Lozado, 776 F.3d at 1126 n.4; see United States v. Taylor, 848 F.3d 476, 487 (1st Cir. 2017) (“[A] statement may be corroborated by the circumstances in which the statement was made if . . . there is no indication that the speaker had motive to lie.“).6
2. Additional Background
On the morning of February 27, 2020, as police executed the search warrant at Mr. Morrow‘s home, detectives also conducted separate interviews of Mr. Morrow and his brother Kory in a police vehicle. It is Kory‘s interview that is at issue here.
When detectives explained to Kory why they were searching the house, he denied having downloaded child pornography and repeatedly expressed disbelief that anyone in his family would have intentionally done so. He said he had regularly and recently downloaded adult pornography but that he was “always careful” to avoid files with names suggesting the contents might include the abuse of children. R., Vol. I at 137. He admitted to accidentally downloading and viewing part of a video
When TPD Detective McCoy acknowledged that perhaps Mr. Morrow or his mother, and not Kory, was the one responsible, the tone and substance of Kory‘s responses shifted:
DETECTIVE MCCOY: Well, maybe it‘s not you. Maybe it‘s, you know, your brother or mom, I don‘t know.
KORY: No, never.
DETECTIVE MCCOY: Never what?
KORY: Never my mother or my brother.
DETECTIVE MCCOY: I take – take it back. I‘m sorry, man.
KORY: Fuck. Shit. I – I‘ll fucking take the blame for that shit.
DETECTIVE MCCOY: I don‘t want you to take the blame.
KORY: I don‘t give a damn. That‘s my fucking family, man. I‘m sorry. And please forgive me, but God damn it. We‘ve been here – you know what the – the hell we‘ve been through here? I would never ever, ever want to see a child get hurt or anything like that.
DETECTIVE MCCOY: Okay.
KORY: If it was downloaded, it was on accident and – shit, even if it was, like, you‘re going to say, Hey, you know what, it‘s on there; it‘s an accident. Fuck it, I‘ll take it. There ain‘t no way in hell I‘m going to let my family pay for some shit like that on an accident. I‘ll go fucking down.
DETECTIVE MCCOY: Kory –
KORY: I love my family, man.
. . .
DETECTIVE MCCOY: Kory, I‘m not lying to you and I totally get what you‘re saying, but the thing is, somebody has downloaded a bunch of movies here.
KORY: Then I‘ll fucking take it. Throw it on me. DETECTIVE MCCOY: I‘m not throwing anything on you.
KORY: I want you to.
DETECTIVE MCCOY: Why would I want to?
KORY: Because at the end of the damn day, I know those two idiots are innocent.
Id. at 156–58.
For the remainder of his interview, Kory made inconsistent statements in which he alternated between insisting that no one in his family (including himself) would intentionally download unlawful material and offering to take the fall for any files TPD found. First, he insisted he had “never downloaded anything intentional in [his] life.” Id. at 158. Then he admitted that, contrary to his earlier statements, he had in the past downloaded files labeled “Too young” or “Lolita“; he said he did not realize that these terms would not simply refer to 18-year-olds or other young-looking adults until someone “warned [him] about that.” Id. at 160–61. Kory repeated: “I wouldn‘t dream of doing that crap on purpose,” followed shortly thereafter by “no way, not a chance my family. Me, blame me. I don‘t give a damn.” Id. at 163–64.
After McCoy reiterated that he only wanted Kory to tell the truth and questioned whether Kory was responsible for all files TPD downloaded from the Morrows’ IP address, Kory responded: “No, I‘m not going to tell you that‘s the truth because it‘s never been anything I‘ve downloaded intentionally. I‘ve mass downloaded music and games.” Id. at 165. Then he stated, “If something happened,
McCoy said he would interview both Kory‘s mother and brother. Kory responded: “Pick on me. I know it‘s not either one of them.” Id. at 170. His final acceptance of blame was again internally inconsistent:
KORY: I‘ll take the blame if there‘s anything on there, even – even if there‘s a picture.
DETECTIVE MCCOY: Okay.
KORY: But there‘s never been nothing intentional.
Id. at 171.
McCoy explained, “I need more details from you if you‘re going to take the blame,” id., and ended the interview with the words, “tell me the details and the truth,” id. at 173–74. Kory responded: “That‘s all I can tell you.” Id. at 174.
At a pretrial conference on November 10, 2021, defense counsel first raised the possibility that Kory, who had been placed on Mr. Morrow‘s witness list, would
During the government‘s case, defense counsel attempted to cross-examine Detective Jennings about Kory‘s interview with the police. At the ensuing bench conference, defense counsel argued that she could elicit testimony under Rule 804(b)(3) because Kory made statements to law enforcement taking responsibility for any downloads of child pornography in the household, which was “clearly contrary to his interest.” Id. at 328. Defense counsel also argued that the statements were corroborated, as required under Rule 804(b)(3)(B), by the presence of child pornography on Kory‘s computer. The government argued that the statements were not against interest because they were not inculpatory and were, instead, the statements of a man who had never intentionally downloaded child pornography but was nonetheless attempting to protect his family.
The district court ruled that several statements qualified as statements against interest but ruled that they were not sufficiently corroborated to be admissible, saying that Mr. Morrow “failed to identify any corroborating circumstances for Kory[]‘s statements that he[ would] take the blame.” Id. at 347. And the court noted the close
3. Analysis
We see no abuse of discretion in the district court‘s corroboration ruling. To be sure, 37 unlawful image files were found on Kory‘s devices, and he might have been prosecuted for that. But it is hard to conceive why he would access so many more illegal images and videos on his brother‘s devices than on his own. And when the officer interviewing him said that he needed “more details from you if you‘re going to take the blame,” and later said, “tell me the details,” Kory was unable to provide such details, responding, “That‘s all I can tell you.” Id. at 171, 173–74. This failure to provide any corroboration at the time of the “confession” is particularly telling and is almost dispositive. Also, Kory had a motive to lie when he attempted to take responsibility for any illegal files downloaded within the home; he made the statements only when interviewing detectives suggested that his brother or mother, and not Kory, might have been responsible for the files downloaded by TPD. “A close relationship between the declarant and the defendant can damage the trustworthiness of a statement.” Lozado, 776 F.3d at 1133. Further, Kory‘s interview—particularly the final portion when he was attempting to take responsibility—is rife with inconsistencies. He repeatedly asked detectives to place any blame on him because he knew his mother and brother were innocent, but he also insisted over and over that he never intentionally downloaded child pornography.
Mr. Morrow‘s additional arguments to the contrary—that Kory‘s awareness of the severity of the situation, minimal familiarity with child-pornography terms, and use of BitTorrent corroborate his statements against interest—provide little support. Almost anyone being interviewed in the back of a police car while officers executed a search warrant on his home would recognize the seriousness of the situation. That a statement is made to police makes it more likely that an inculpatory statement will be used against him, but it is not itself necessarily a source of corroboration. Cf. United States v. Barone, 114 F.3d 1284, 1301 (1st Cir. 1997) (“the fact that [the declarant] made the statements to close relatives in a noncustodial setting rather than to the police” constituted a “corroborating circumstance[] that clearly indicate[d] the trustworthiness of the [declarant‘s] statements” (original brackets and internal quotation marks omitted)). And although Kory was aware of terms such as “too young” and “Lolita,” he also told the detectives that he had believed they referred to young-looking but nonetheless adult women. And when McCoy mentioned the term PTHC, Kory was not familiar with it. Further, Kory‘s frequent use of BitTorrent, although relevant had the government taken his case to trial, does not explain why he would have so frequently used it to download content on his brother‘s password-protected devices in addition to his own. Mr. Morrow‘s purported evidence of
C. Prosecutor‘s Statement During Closing Argument
Mr. Morrow argues that the district court plainly erred in not correcting the following false statement about Kory made by the government during its closing argument:
Now, there‘s nothing stopping two people from independently downloading child pornography from each other. Maybe the Morrow brothers just share a sexual interest in children or maybe Earl just used Kory‘s computer, but as the judge instructed you today, Kory Morrow‘s computer, Earl‘s brother, should be of no concern to you. He‘s not on trial. Not yet.
R., Vol. I at 451 (emphasis added). As the parties and the court knew, however, the charges against Kory had been dismissed ten days before trial. Mr. Morrow did not object.
Mr. Morrow now contends that the district court‘s failure to correct the misstatement violated his due-process rights because it was a “false insinuation [that] allowed the jury to think both brothers were responsible, whether jointly or separately, instead of deciding if [Kory‘s] role raised any doubt for their decision in Mr. Morrow‘s case.” Aplt. Br. at 49.
“We analyze whether a statement constitutes prosecutorial misconduct using a two-step process“: we determine (1) “whether the prosecutor‘s statements were improper” and, (2) in the case of an improper statement, whether the impropriety was “harmless” because it did not prejudice the defendant. United States v. Rodella, 804 F.3d 1317, 1335 (10th Cir. 2015) (internal quotation marks omitted). “Although a prosecutor may comment on and draw reasonable inferences from evidence presented at trial, arguing prejudicial facts not in evidence is one type of prosecutorial misconduct.” Underwood v. Royal, 894 F.3d 1154, 1167 (10th Cir. 2018) (emphasis added, and brackets, citation, and internal quotation marks omitted). “[W]hen a defendant fails to object to an allegedly improper statement during trial, we review only for plain error.” Rodella, 804 F.3d at 1335 (internal quotation marks omitted). “Plain error occurs when there is (1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Cushing, 10 F.4th at 1081 (internal quotation marks omitted). An error affects substantial rights when it prejudices the defendant by likely affecting the outcome of the proceedings. “[I]t is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice.” Rodella, 804 F.3d at 1335 (internal quotation marks omitted).
Mr. Morrow has not carried his burden to establish the requisite prejudice. The misstatement, if anything, supported Mr. Morrow‘s defense that Kory alone may have been to blame for the files found on all devices, including those belonging to Mr. Morrow. The district court‘s instruction not to consider whether Kory was guilty further diminishes any possibility of prejudice.7
The Ninth Circuit decision in United States v. Kojayan, 8 F.3d 1315 (9th Cir. 1993), upon which Mr. Morrow relies, does not support a contrary result. In Kojayan, a drug-conspiracy case, the defense argued that the government did not call a co-conspirator to testify because his testimony would have been unfavorable to the prosecution. See id. at 1317. At closing argument the government responded to that assertion by suggesting that the co-conspirator had invoked his Fifth Amendment right and could not be forced to testify. See id. at 1317–18. But the co-conspirator had, in fact, signed a cooperation agreement and the government (which was obliged to disclose such information to the defense) had substantial leverage to get him to testify. See id. at 1318, 1323. On appeal the defendant claimed prosecutorial misconduct, and the court reversed. See id. at 1324–25. Kojayan is easily distinguished. The false statement by the prosecutor in that case undermined a valid defense argument. Here, in contrast, the falsity actually supported Mr. Morrow‘s contention that someone else (perhaps his brother) must have been responsible for the illegal images and videos.
Because we discern, at most, one (nonreversible) error in Mr. Morrow‘s first three claims (the prosecution‘s “not yet” statement in closing argument), his cumulative-error claim also fails. See Cushing, 10 F.4th at 1082. We AFFIRM Mr. Morrow‘s convictions.
Notes
A court evaluating the admissibility of a third-party confession to a crime, for example, must consider not only circumstances such as the timing and spontaneity of the statement and the third-party declarant‘s likely motivations in making it. It must also consider corroborating information, if any, supporting the statement, such as evidence placing the third party in the vicinity of the crime. Courts must also consider evidence that contradicts the declarant‘s account.Id. at 299. We understand the proposed amendment as consistent with this court‘s current approach and, were the amendment already in effect, it would not alter the analysis or outcome here.
Aplee. Supp. R. at 15 (Jury Instruction 10).It is not up to you to decide whether anyone who is not on trial in this case should be prosecuted for the crime charged. The fact that another person also may be guilty is no defense to a criminal charge.
The question of possible guilt by others should not enter your thinking as you decide whether the government has proved the defendant guilty of the crimes charged.