UNITED STATES of America, Appellee, v. James RAMOS, Defendant-Appellant.
Docket No. 10-4802-cr.
United States Court of Appeals, Second Circuit.
Argued: Jan. 31, 2012. Decided: July 2, 2012.
We have reviewed the government‘s rebuttal summation in light of these principles, and conclude that there was no misconduct here. The district court did not abuse its discretion in denying the Rule 33 motion to the extent it was based on alleged prosecutorial misconduct.
IV. The Sentencing Enhancement
In light of our decision above, we need not reach Banki‘s argument that the district court miscalculated the applicable Guidelines Range.
CONCLUSION
For the foregoing reasons,
- As to Count One, we VACATE and REMAND;
- As to Count Two, we VACATE and REMAND;
- As to Count Three, we VACATE and REMAND; and
- As to Courts Four and Five, we AFFIRM.
Vivian Shevitz, Brooklyn, NY, for Defendant-Appellant.
Before: WINTER, RAGGI, and CHIN, Circuit Judges.
CHIN, Circuit Judge:
Defendant-appellant James Ramos appeals a judgment of the United States District Court for the Northern District of New York convicting him of receiving and possessing child pornography in violation of
We AFFIRM.
STATEMENT OF THE CASE
A. The Facts
Except as indicated, the following facts, drawn primarily from the evidence presented at the suppression hearing and the trial below, are not in dispute.
1. Background
In 1990, Ramos was convicted in state court in Saratoga Springs, New York, of sexually abusing two sisters, ages ten and thirteen. After serving approximately fourteen years in prison, he applied in February 2003 for release on parole. In his application, he agreed to certain conditions of supervision, including permit-
On March 5, 2008, Ramos‘s parole officer told him that two new conditions—polygraph testing and GPS monitoring—were being added to his conditions of supervision because of changes in the procedures for sex offenders on parole. Ramos complained to his parole officer that the addition of the conditions “violated his rights.” Ramos spoke with his parole officer several more times after March 5, 2008, and eventually agreed to participate in the polygraph examination, despite his initial reservations.
2. The Statements
On April 4, 2008, Ramos went to the Probation Office for a polygraph test. He first signed several forms. In one, he agreed that “failure to answer questions regarding my conformance to parole conditions, in the discretion of the Parole Office and Polygraph Examiner, may be deemed as a failure to participate in a meaningful way and be submitted . . . as a parole . . . violation.” In another, he stated: “I will participate in the Division of Parole‘s polygraph program as directed by my P.O. I understand this will include periodic polygraph sessions. . . . I will answer all questions fully and truthfully as well as comply w/ any directives given to me by the polygraph examiner.” In yet a third he acknowledged that:
- Failure to fully cooperate and participate in any aspect of the polygraph examination session, including refusal to answer questions during the examination, may be grounds for violations of my parole.
- Answers to questions during the polygraph examination session may be used in determining appropriate sanctions to be implemented by the Division of Parole, including a parole violation hearing. Additionally, admissions to criminal behavior will result in referral to appropriate law enforcement authorities for investigation and possible prosecution.
- Any admission to criminal behavior during the polygraph session may be used against me in a court of law.
(Appellee‘s App. at 137 (emphases omitted)).
In an interview before the test was administered, Ramos told the polygraph examiner that he had viewed both pornography and child pornography on his computer via the internet, “at least somewhere between twelve and eighteen times since his release to parole supervision.” Ramos took the test, and the results were inconclusive. Afterwards, Ramos signed an “Admissions Form” in which he confirmed that he had viewed pornography and child pornography “on at least 12 to 18 different occasions,” on the internet in his home. Ramos‘s parole officer immediately imposed a new condition of parole forbidding Ramos from owning or operating a computer and using the internet.
3. The Computers
After Ramos left, the parole officer reported Ramos‘s admissions to U.S. Immigration and Customs Enforcement (“ICE“) agents. The same day, April 4, 2008, two ICE agents went to Ramos‘s residence, a trailer home. They found him outside the trailer. They introduced themselves and
At some point during the interview, the agents read Ramos his Miranda rights.1 He signed two consent forms, one to a search of his residence and one to a search of his computer equipment. He refused to sign a third document. The agents then conducted a search and seized a desktop computer. As a forensic examination would later reveal, Ramos had used the computer to visit child pornography websites and view images of child pornography. One of the hard drives had deleted “cookie” files from websites with names indicative of sexual interest in minors. There were two deleted web pages with images that were not recoverable, but that bore the names “Lolita Photos” and “9-12yr Pics.” The hard drive had been used to conduct a Google search using words such as “twink,” which suggested a search for child pornography. One of the hard drives contained software called “Smart Protector Pro” that enabled a user to delete his browser history. There were some 140 images of child pornography in deleted space; the file names indicated these had been temporary internet files that had been deleted.
On November 20, 2008, a grand jury in the Northern District of New York indict-
The laptop was manufactured in Korea and its hard drive was manufactured in Thailand. The hard drive had on it computer software called “Microsoft Picture It,” which permitted a user to alter images. The laptop contained images modified to appear as if children were engaged in sexually explicit acts. The original, unaltered images of two young girls, panties, and a penis—which had been used to create the altered image—were also found on the computer.
B. Proceedings Below
On March 13, 2009, a grand jury in the Northern District of New York returned a superseding indictment against Ramos charging him with two counts of receiving child pornography, in violation of
In September 2009, Ramos moved to suppress his statements to parole officers and the evidence seized during the searches resulting from his statements. The district court denied the motions from the bench on April 5, 2010, following an evidentiary hearing. With respect to Ramos‘s statements made during the polygraph examination, the district court held that the statements were admissible because Ramos was not in custody.2
Ramos proceeded to trial pro se, with advisory counsel. Following a three-day trial, the jury convicted Ramos on three counts of receiving and possessing child pornography.3
Ramos was sentenced on November 23, 2010. Because Ramos had previously been convicted of sexually abusing children, he was subject to a mandatory minimum sentence of imprisonment of fifteen years. See
This appeal followed.
DISCUSSION
Two principal issues are presented: (1) whether Ramos was compelled to incriminate himself during the polygraph examination in violation of his rights under the Fifth Amendment, and (2) whether the government presented sufficient evidence at trial to support Ramos‘s convictions for knowing receipt and possession of child pornography.
I. The Right Against Self-Incrimination
A. Applicable Law
The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.”
As a general matter, the Fifth Amendment privilege is not self-executing. Murphy, 465 U.S. at 425; Jennings, 652 F.3d at 303-04. Rather, the privilege must be invoked: an individual must claim the privilege to be protected by it. An individual who makes self-incriminating statements without claiming the privilege is deemed not to have been “compelled” but to have spoken voluntarily. See Murphy, 465 U.S. at 429; Jennings, 652 F.3d at 303–04.
One exception exists for the “so-called ‘penalty’ cases,” where the government compels an individual “to forgo the Fifth Amendment privilege by threatening to impose economic or other sanctions ‘capable of forcing self-incrimination.’ ” Murphy, 465 U.S. at 434 (quoting Lefkowitz v. Cunningham, 431 U.S. 801, 806 (1977)). Where the government compels an individual to speak by threatening him with a substantial penalty for exercising his Fifth Amendment right to remain silent, the privilege is self-executing. Id. at 434-35.
In the supervision context, if a probation or parole officer tells a supervisee, explicitly or implicitly, that invocation of the privilege would lead to revocation of supervision, the supervisee is deemed to have been compelled to speak and his failure to assert the privilege would be excused. Id. at 435 (describing this scenario as “the classic penalty situation“). The penalty exception does not apply, however, merely because the terms of probation require a probationer to appear before his probation officer and tell the truth “in all matters.” Id. at 438-39. Rather, a supervisee is deemed to have been compelled to speak only where he is required by the government “to choose between making incriminating statements and jeopardizing his conditional liberty by remaining silent.” Id. at 436. In determining whether a person‘s incriminating statements were compelled in such a “penalty case,” we examine the totality of the circumstances. See United States v. Roberts, 660 F.3d 149, 156 (2d Cir.2011), cert. denied, 132 S. Ct. 1640 (2012).
In Murphy, the probationer was required by his terms of probation to be truthful with his probation officer “in all matters.” Id. at 422. He was informed that failure to comply with his conditions of probation “could result in his return to the sentencing court for a probation revocation hearing.” Id. Indeed, Murphy understood that “revocation of his probation was threatened if he was untruthful with his probation officer.” Id. at 434.
Nonetheless, the Court held that the probationer was not compelled to incriminate himself when he admitted to his probation officer that he had committed a rape and murder. Id. at 424, 439. The Court noted that the probationer had not been told that his “assertion of the privilege would result in the imposition of a penalty.” Id. at 438 (emphasis added). The Court held further that even if the probationer did believe that his probation might be revoked if he claimed the privilege, “that belief would not have been reasonable”
On appeal from the district court‘s denial of a motion to suppress, we review its conclusions of law de novo and its factual findings for clear error, viewing the evidence in the light most favorable to the government. United States v. Garcia, 339 F.3d 116, 118-19 (2d Cir.2003).
B. Application
Here, Ramos‘s participation in the required polygraph examination is not itself the basis for the claimed constitutional violation. Rather, the question present- ed is whether the incriminating statements Ramos made during the course of that examination were admissible under the Fifth Amendment. As Ramos did not invoke his Fifth Amendment right against self-incrimination when he was interviewed for the polygraph examination on April 4, 2008,4 that question thus turns on whether his incriminatory statements were compelled as contemplated by Murphy. We conclude they were not.
First, Ramos was not “told that he would lose his freedom if he invoked his Fifth Amendment privilege.” Jennings, 652 F.3d at 304 (emphasis added); see Murphy, 465 U.S. at 435 (“[I]f the state, either expressly or by implication, asserts that invocation of the privilege would lead to revocation of probation, it would [create] the classic penalty situation . . . .“) (emphasis added). Rather, the consent forms he signed warned him only that his failure to fully and truthfully answer all questions put to him by his parole officer could lead to the initiation of violation proceedings or the revocation of his parole.5 This was precisely the situation faced by the probationer in Murphy, who was told that his failure to be truthful in all matters “could result in revocation of
Second, there is no evidence that Ramos subjectively felt compelled to answer incriminating questions during the polygraph examination or the ICE agents’ later investigation. See id. at 437-38 (concluding there was no Fifth Amendment violation because, among other factors, there was no direct evidence of subjective compulsion). During the suppression hearing, Ramos was questioned about forms he signed granting the ICE agents consent to search his home on April 4, 2008, and testified: “If I did not sign those documents, there was no doubt in my mind that I would go to prison. I would be violated on parole and be sent back to prison.” Ramos, however, offered no such testimony regarding his consent to the polygraph examination or to answering the ICE agents’ questions. Rather, the record shows that Ramos eventually agreed to participate in the polygraph examination without expressing any reservations, and that he was capable of declining the ICE agents’ requests for information as illustrated by his refusal to provide a written statement. Thus, the record does not support a finding of subjective compulsion.
Third, Ramos could not have reasonably believed that his parole would be revoked for exercising his Fifth Amendment rights. As explained in the Supreme Court‘s decision in Murphy, the State of New York could not have constitutionally carried out a threat to revoke Ramos‘s parole because he invoked his Fifth Amendment right to remain silent. See id. at 438. Indeed, the New York courts have held that “the State may not punish a parolee for invoking his Fifth Amendment privilege by revoking his parole.” People v. Dyla, 142 A.D.2d 423, 536 N.Y.S.2d 799, 811-12 (2d Dep‘t 1988) (citing Murphy, 465 U.S. at 438-40).
We conclude, therefore, that the circumstances of Ramos‘s polygraph examination on April 4, 2008, did not create a penalty situation such that his Fifth Amendment privilege against self-incrimination became self-executing. The district court did not err in denying Ramos‘s motion to suppress his incriminating statements and the physical evidence obtained thereafter.6
In considering a defendant‘s challenge to the sufficiency of the evidence, we “view the evidence presented in the light most favorable to the government, and . . . draw all reasonable inferences in its favor, affirming the jury verdict unless no rational trier of fact could have found all of the elements of the crime beyond a reasonable doubt.” United States v. Desinor, 525 F.3d 193, 203 (2d Cir.2008) (citation and internal quotation marks omitted) (omission in original); accord United States v. Adekanbi, 675 F.3d 178, 182 n. 3 (2d Cir.2012). A jury‘s verdict must be upheld if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Two sufficiency issues are presented: first, whether viewing images in temporary internet files constitutes receipt or possession of child pornography, and, second, whether using computer equipment manufactured abroad to create “morphed” images of child pornography meets the interstate or foreign commerce element of the crimes of conviction.
A. Temporary Internet Files
Ramos argues, with respect to the computer seized on April 4, 2008, that the evidence failed to prove that he knowingly received or possessed images from the internet because the evidence showed only that he viewed images in temporary internet or “cache” files (without saving them) and that the mere viewing of child pornography stored in temporary internet files was insufficient to sustain a conviction under the statute as it then existed.7
Ramos was charged with receipt of child pornography in violation of
(a) Any person who—
(2) knowingly receives . . . (A) any child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer, . . .
[or]
(5) . . . (B) knowingly possesses any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer, or that was produced using materials that have been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer, . . . [commits a crime].
This Court has not yet decided whether viewing images stored in temporary internet files is sufficient to establish knowing receipt or possession of child pornography. See United States v. Falso, 544 F.3d 110, 121 n. 13 (2d Cir.2008); United States v. Martin, 426 F.3d 68, 77 (2d Cir.2005) (whether “viewing” child pornography on internet is legal is “an open question“). Other Circuits, however, have upheld child pornography receipt and possession convictions where a defendant viewed child pornography stored in temporary internet files on a computer. See, e.g., Pruitt, 638 F.3d at 766-67 (“A person ‘knowingly receives’ child pornography under
In the circumstances here, we hold that the evidence was sufficient to prove that Ramos was guilty of knowingly receiving and possessing child pornography under the statute as it was worded in April 2008, even assuming he viewed the images in question only in temporary internet files and did not save them onto his hard drive.
First, giving the words their plain meaning, Ramos clearly “receive[d]” and “possesse[d]” the images, even though they were only in his temporary internet files. As the evidence showed below, Ramos had some control over the images even without saving them—he could view them on his screen, he could leave them on his screen for as long as he kept his computer on, he could copy and attach them to an email and send them to someone, he could print
Second, here there was ample evidence that Ramos intentionally searched for images of child pornography, found them, and knowingly accepted them onto his computer, albeit temporarily. The browsing history on his desktop computer showed that Ramos intentionally searched for child pornography on the internet. See, e.g., Pruitt, 638 F.3d at 767 (upholding defendant‘s conviction where “investigators found a record of internet searches using terms related to child pornography . . . and a record of visits to websites with a child-pornography connection“); Kain, 589 F.3d at 949-50 (finding sufficient evidence for knowing possession where defendant‘s browsing history showed repeated accessing of child pornography websites). In fact, he viewed some 140 images of child pornography, which were stored on the computer in temporary internet files. He knew that these images would be found on his computer, as he told the ICE agents that they would probably find child pornography there. Further, he had also attempted to delete the temporary internet files and browsing history from his com-puter. See Bass, 411 F.3d at 1202 (“[T]he jury here reasonably could have inferred that Bass knew child pornography was automatically saved to his mother‘s computer based on evidence that Bass attempted to remove the images.“).
Accordingly, we conclude that there was sufficient evidence from which a rational trier of fact could have found that Ramos knowingly received and possessed child pornography on the computer seized on April 4, 2008.
B. Interstate or Foreign Commerce
The laptop seized on November 21, 2008, contained “morphed images“—images digitally altered to depict children apparently engaging in sexual activity. Ramos argues that the government failed to establish that the original or “source” images came through the internet or otherwise traveled in interstate and foreign commerce. He further argues that the government failed to show that the images were produced using materials that had traveled in interstate or foreign commerce. See
This Court has rejected the argument that a similar statute,
This Court has not considered the issue in a published decision.9 Other Circuits, however, have held that a defendant‘s use of non-American-made computers or digital equipment to produce child pornography satisfies the interstate or foreign commerce element. See United States v. Schene, 543 F.3d 627, 639 (10th Cir.2008) (finding sufficient evidence of interstate or foreign nexus under
The morphed images at issue here were found on Ramos‘s laptop, which was manufactured in Korea. Its hard drive was manufactured in Thailand. Both pieces of equipment were thus materials that had been “shipped or transported in interstate or foreign commerce” under
Finally, Ramos argues that the statute is unconstitutional as applied to him because the evidence could only show that he created the images “alone in his trailer,” engaging in “private conduct on his laptop,” using images that could only have been his “personal family photos” that never traveled across the internet, without any evidence suggesting he intended to distribute the morphed images to anyone else. This argument fails. As we explained in Holston, “Congress understood that much of the pornographic material involving minors that feeds the [national] market is locally produced, and this local or ‘homegrown’ production supports demand in the national market and is essential to its existence.” Id. at 90. “[W]hen Congress regulates a class of activities that substantially affect interstate commerce,” the fact that particular activities within that class do not have a substantial effect on interstate commerce is ” ‘irrelevant.’ ” Id. (quoting Proyect v. United States, 101 F.3d 11, 14 (2d Cir. 1996) (per curiam)). “The government need not demonstrate a nexus to interstate commerce in every prosecution.” Holston, 343 F.3d at 91. As
We conclude that the jury‘s verdict convicting Ramos of possession of child pornography under
CONCLUSION
We have considered Ramos‘s remaining arguments and conclude that they are without merit.11 For the foregoing reasons, the judgment of the district court is AFFIRM ED.