United States v. Wright

beginning from the incompetent been had America, UNITED STATES of and that he did not “even

of the case Plaintiff-Appellee, charges brought have been know what him, though person- he had against” even v. pro argu- se motions ally prepared several WRIGHT, A. Jason Defendant- charges. those Hant- specifics Appellant. legitimacy attacked the argument zis’s tri- prosecution, investigation, No. 08-10525. al, conviction, attorneys prior and his Appeals, United States Court of sentencing pro- but not the sentencing, Ninth Circuit. (which process). was then in ceeding itself Moreover, already court had the district 12, Argued July and Submitted 2010. pre-sen- Hantzis’s considered and denied Filed Nov. tence motions.

Even if Hantzis’s statement could requesting as counsel at sen

be construed wary against “a court must be

tencing, being ploy used as a

‘right of counsel’ delay.” or effect

gain time Kelm, Cir.

v.

1987), grounds by on other Unit overruled Heredia, 483 F.3d

ed States

(9th Cir.2007) (en banc). Hantzis hired repeatedly counsel appointed

and fired man

throughout proceedings, and he delay sentencing for three full

aged to totality trial.

years after Given

circumstances, the district court did not requiring proceed pro

err in Hantzis se “ sentencing where his conduct was ‘dil atory and the efficient hinder[ed] adminis ” justice.’

tration of United States v. (9th Cir.1993)

Meeks, Kelm, 1322). F.2d at

(quoting

AFFIRMED. Sands, Defender,

Jon Federal Public Heather E. Williams and Brian I. Rade- (on argued), macher the brief and Assis- Defenders, tant Federal Public District of Arizona, defendant-appellant for the Jason A. Wright. Burke, K. Attor-

Dennis Cabanillas, M. ney, Appellate Christina (on Chief, Ferg Bruce M. the brief and Attorney, District argued), Assistant U.S. Arizona, plaintiff-appellee United of America. States (3) trial; throughout duct the course of the to a copy limited access mirrored (4) drive; computer’s hard an jury erroneous instruction that failed to require jury to find knew the HUG, JR., Before: PROCTER charged files the indictment existed on SMITH, JR., Judges, MILAN D. Circuit and contained child pornog- HOGAN, and THOMAS F. Senior District raphy. Wright argues also that even if the Judge.* court would not reverse on the basis of individually, of these errors their cumula- SMITH, Opinion by Judge MILAN D. tive him Finally, effect denied a fair trial. JR.; by Judge Concurrence HUG. Wright argues that his 121-month sen- improper. tence was OPINION jurisdiction We have under 28 U.S.C. SMITH, Judge: M. Circuit § 1291. affirm in part, We reverse Defendant-Appellant Wright ap- Jason part, and remand to the district court for peals his conviction and sentence for the proceedings consistent with this opinion. transportation possession por- of child nography in violation of 18 U.S.C. FACTUAL AND PROCEDURAL (a)(5)(B). 2252A(a)(l), nu- raises BACKGROUND First, alleged merous issues of error. he 16, 2003, January On from the FBI of- challenges his conviction based on insuffi- Tucson, Arizona, fice in Special Agent FBI ciency of respect the evidence. With to his Robin Andrews conducted an undercover 2252A(a)(l), conviction under 18 U.S.C. search on a file-sharing program known as Wright argues charged the offense (Internet Chat). an Relay mIRC1 An- requires interstate transmission of child drews “azgym- came across the user name files, yet there is evidence guy2” in the chat rooms “100%teensex- that none the files crossed state lines. pics” and “gayteenpics.” typing After in a respect With both counts of which “trigger” that allowed her to establish a convicted, Wright argues he that there direct connection with azgymguy2’s file- proving is no evidence he knew that the trader, following the ap- announcement twenty-seven charged files in the indict- peared: ment were either on his or con- my Welcome I’m fairly open server. Second, pornography. tained child Wright uploads, please just upload so stuff challenges the district court’s denial of his you However, good. feel is I always am Third, motion to suppress statements. cocks, looking huge young boys for Wright that he maintains was denied a fair you movies. I hope enjoy your stay. (1) trial based on: the district court’s ex- clusion of evidence under Federal Rule of Andrews downloaded thirteen files— (2) 404(b); prosecutorial Evidence miscon- three of pornography.2 which were child (DCC), Hogan, *The Honorable computers Thomas F. Senior tions in which two connect Judge United States District directly for the District of through to each other rather than the Columbia, sitting by designation. District of IRC servers. 1. IRC networks allow users to chat share real-time, parties dispute many 2. yet actually files in how files are not thir- Rather, pornography. transferred over the network. teen files contained child files In its brief, are transferred via direct client communica- asserts that all thirteen (same 63; a session that at Andrews conducted second Nee SER see also id. at 77 afternoon, steps she took repeating respect with to afternoon session on Janu- morning. This time she downloaded 16); ary (January id. at 142 27 session files, twenty-one of which were fifty-nine Fairfax, place took via a server in Virgi- Andrews conducted pornography. nia); (“[Tjypically id. at 167 way peo- undercover sessions on Janu- three more ple just connect to an they IRC server is January February 2003. ary say just connect me to the undernet and According government’s expert to the me.”). pick server for trial, Nielsen, Wright’s witness Sven matching Wright’s After home address connection to An- direct client-to-client connection, “azgymguy2’s” Internet is, the connection drews—that FBI executed a search warrant at An- transport images used to Wright’s February residence on go through drews—did not IRC servers Agents Wright’s desktop computer seized traffic sending such “that the actual and a laptop Wright’s from the bedroom of point the chat from that sending file or roommate, Dittfurth. Shawn While other actually not state lines.” Niel- cross d[id] that, agents Wright’s searched apartment, An- explained also order to estab- sen connection, client-to-client Englander lish direct drews and Detective Jeff “the normal request initial takes IRC County questioned Pima Office Sheriffs route,” request accepted but once the apartment outside the in an un- directly, computers are connected not police marked vehicle. course, while the through the server. Of Approximately one week after client-to-client communication does direct search, Dittfurth disappeared. According lines, the actually cross state files are to Wright, unexpectedly Dittfurth moved transmitted over the Internet. See still out of apartment. Wright’s de- Appellee’s Supp. Excerpts of Record throughout fense the trial was that it was (SER) (“if ‘yes’ at 165 Joe clicks and starts Dittfurth, Wright, and not who was re- file, my computer then will accepting Internet, possession directly sponsible por- that file over the the child send servers”); going through not the IRC see nography Wright’s found on desktop Lewis, also United States computer. Wright sought to introduce (1st Cir.2009) (explaining that while evidence at trial supporting theory; this networks, “peer-to-peer” or “direct eon- however, below, fully as we discuss more not “central through do travel nection[s]” Wright claims that the district court ex- servers,” subject the transfers are still cluded such evidence on the basis Internet communication “associated with that Dittfurth testify did not at trial. (internal underlying protocol” TCP/IP Indictment, Superseding gov- omitted)). Furthermore, quotation marks charged Wright ernment with ten counts logged Andrews testified that when she on advertisement, relating transporta- to the January to the IRC network on 16 and tion, possession pornography. of child eventually Wright’s connected to file-ser- 1 alleged Wright knowingly Count that ver, Wright transported from which files, published a notice and advertisement seek- pornography child she connected Jose, in in through offering pornography server San California. or child viola- depicted boys years only age under drews testified at that files trial three of the However, engaged pornography. in sexual activities. An- thirteen files were child 2251(c)(1)(A).3 § Finally, tion of 18 The he was denied a fair trial. he U.S.C. jury acquitted Wright improper. of Count 1. The claims that his sentence was government alleged, also Counts 2252A(a)(l)’s § I. “In 18 U.S.C. Inter- Wright knowingly pos- through Requirement state Commerce” images pornography sessed of child CDs, in violation of 18 separate U.S.C. As it existed the time of 2252(a)(5)(B). acquit- § Wright was also Wright’s offense 18 U.S.C. possession charges respect ted of the with 2252A(a)(l) § punished any person who images. to those mail[ed], “knowingly transported] or ship[ped] in foreign interstate or com are focus of this Counts and 3 means, by any merce including by com appeal. Based on Andrews’s undercover puter, any pornography.” child Whether connecting Wright’s computer, sessions 2252A(a)(l)’s section “in ... interstate government charged Wright with language requires govern commerce” transporting jury nine files Count 2. The prove images ment to that the themselves Wright “knowingly convicted trans- appears traveled across state lines to be port[ing] ship[ping] in interstate com- question impression of first in this circuit. merce, by computer, por- means of a child Wright’s principal argument is that nography.” on images Based recovered However, require. statute does so both from Wright’s computer, parties agree images question charged Wright possession of nine- never traveled outside Arizona when An teen files in Count 3. was convicted drews downloaded them from “knowingly possessing] computer disks computer. The counters that ... images contained and films of require images the statute does not shipped that had been Alternatively, argues cross state lines. transported foreign in interstate or images may while the themselves computer.” commerce means of a lines, have traveled across state their district court sentenced to 121 transmission would not have occurred ex transportation months on the count and 60 cept for the prior communications from count, possession months on the to be through the defendant’s file server concurrently. served result, IRC network to FBI. As a those because communications traveled DISCUSSION 2252A(a)(l)’s lines, ju across state section Wright raises a host appeal. of issues on risdictional element was satisfied. First, argues he 18 U.S.C. We review de novo Wright’s chal 2252A(a)(l), itas existed at the time of evidence, lenge sufficiency to the of the offense, requires interstate transmis- Green, 1057, United States v. 592 F.3d Second, sion of pornography images. child (9th Cir.2010), including questions 1065 Wright argues that there is no evidence statutory interpretation, v. United States proving twenty-seven he knew that Youssef, 1090, 547 F.3d 1093 Cir. files in charged the indictment were either 2008). on his or pornog- contained child Third, raphy. First, Wright challenges the dis- government argues that sec 2252A(a)(l) trict sup- court’s denial of his motion require tion does not actual press Fourth, Wright transportation statements. claims pornography of child across statute, 2251(d)(1)(A). corresponds § 3. Under the current text Count 1 to 18 U.S.C. statutory indicating images traveled inter- any inter lines. As with state meaning MacEwan, plain with “the pretation, we start state. 445 F.3d at 241. The v. text.” United States of the statute’s rejected reading Third phrase Circuit (9th Cir.2008). Nader, F.3d synonymously “interstate commerce” with 2252A(a)(l) noted, punishes 18 U.S.C. As at “interstate transmission.” Id. 243. Ac- mails, “knowingly or any person who cordingly, it held that the statute did not foreign ships in interstate or transports or explicitly require pornogra- that the child means, including by by any commerce lines, phy images only had to cross state Our any pornography[.]” child computer, “they must have transported been Congress meant analysis turns on what means, by any commerce interstate includ- ... “transports interstate phrase (internal ing by computer.” Id. at 244 language plain ... commerce.” Under the omitted). quotation ellipsis marks and 2252A(a)(l), requires the statute of section The court then re-framed the issue in mail, ship child person transport, that a or use, standing terms of whether Internet say, That is to pornography interstate. alone, jurisdictional satisfies the statute’s seems to re plain reading of the statute (asking hook.6 See id. “whether download- some method of interstate quire least ing image an of child pornography from travel.4 receipt the Internet involves [] government’s argument something transported in interstate com- 2252A(a)(l) require does not actual section merce”). According to the MacEwan state lines relies on transportation across court, it does—a contention we address the Third Circuit’s decision United fully more below. (2006). MacEwan, v. 445 F.3d 237 States disagreed Two other circuits have with addressed section MacEwan statutory the Third reading Circuit’s —at 2252A(a)(2)(B) (2003), punishes respect materially to whether a least knowingly ... “[a]ny person who receives statutory provision requires identical ac- any ... material that con- or distributes transportation tual across state lines. pornography tains child that has been Schaefer, v. 501 F.3d United States mailed, shipped transported or inter- (2007), rejected the Tenth Circuit means, foreign by any state or commerce approach contrary to MacEwan’s as There, including by computer.”5 the de- plain terms of the statute. It faulted stipulated knowingly download- fendant “reeast[ing] jurisdic- MacEwan for from the Internet requirement of argued child-pornogra- but there was no evidence tional " here, "jurisdictional 'provision 4. We do not consider nor does 6.A hook” is in a challenge, constitutionality of section requires federal statute 2252A(a)(l) Congress’ under Commerce specific justifying facts to establish exer Rather, authority. only we address Clause jurisdiction cise of federal in connection with " sufficient whether the introduced application individual of the statute.' juris- satisfy evidence at trial to the statute's McCoy, v. dictional element. Rodia, (9th Cir.2003) (quoting United States v. (3d 1999)), Cir. overruled on below, Congress 5. As discussed further Raich, grounds by other 545 U.S. Gonzales 2008, adding amended the statute in 1, 2195, (2005), 125 S.Ct. 162 L.Ed.2d 1 as "using any facility phrase means or of inter- McCalla, recognized in United States v. 545 foreign following or commerce” state 750, (9th Cir.2008). F.3d 756 110-358, "mailed, or.” See Pub.L. No. 122 (2008). Stat. 4001 We address the amend- I.B., ments Section infra. 592 require crossing be satis- vant material “to actual

phy statute into one could ” at by facility,’ of an ‘interstate a a state or national border.” See id. fied use cases); text, (citing which 213-14 see also Smith v. term absent from statute’s (5th Cir.1988) 1360, Ayres, 1366 language.” “in 845 instead uses the commerce (some “in (holding foreign that the interstate or quotation at Id. internal omitted). language commerce” in the wire- federal According marks to the Schae- statute, 1343, § court, “requires fraud 18 U.S.C. the “in com- Congress’ use of fer wire communication cross state language” merce “its decision to reflected lines”); Colavito, United States v. jurisdiction require limit federal actu- (2d Cir.1994) 69, 71-72 (explaining satisfy the al movement between states to process context of defendant’s due chal- (citing interstate nexus.” Id. at 1201-02 2252(a)(4)(B) Stores, Adams, lenge to 18 U.S.C. City Circuit Inc. v. 105, 115-16, 1302, por- statute “lists several means U.S. S.Ct. states, may in- (2001), nography travel between explaining L.Ed.2d 234 commerce,” cluding images the transmission of visual it uses the “in phrase when telephone by way across lines of computer Congress regulate does not intend to modems”). authority the full extent of its under the Clause). Commerce sure, “Congress To be uses differ adopted The First view Circuit similar ent modifiers to the word ‘commerce’ in Lewis, in United States v. 554 F.3d 208 design and enactment of its statutes.” (2009). There, rejected court gov- Stores, 115, City Circuit U.S. position Congress ernment’s “that intend- Congress 1302. S.Ct. Where uses the purely ed to reach intrastate transmission phrases “affecting commerce” or “involv “ of child used a channel commerce,” ‘signals it an intent instrumentality or interstate com- power exercise commerce to the [its] ” so, doing merce.” Id. at 212. In it looked (quoting full.’ Id. Allied-Bruce Terminix jurisdictional similarly Dobson, hooks of 265, 277, 115 Cos. v. 513 U.S. S.Ct. (1995)). explained 834, worded criminal statutes and However, 130 L.Ed.2d 753 that courts interpreted Congress’ have de- phrases “in commerce” or “engaged commerce,” cision to “in in- transportation criminalize “are understood to have a Id.;7 terstate foreign or commerce” of the rele- more limited reach.” Though Supreme pro- gress Court made these settled on the "in interstate commerce” interpreting nouncements in the context of language precisely because of its limited Act, provision of the Federal Arbitration precursors reach. The to section 2252A were against "[a] cautioned variable standard for 2251, 2252, §§ 18 U.S.C. enacted common, interpreting jurisdictional phrases.” part Against as of the Protection of Children course, Id. at 121 S.Ct. 1302. Of "statu- Exploitation Sexual Act of 1977. See Pub.L. tory jurisdictional [do formulations 'nec- not] 95-225, (1978). No. 92 Stat. Section essarily meaning have a uniform whenever 2251(a)(1) punished any person who forced a ” by Congress,’ used id. at 121 S.Ct. 1302 engage "any sexually explicit minor to con- (quoting Bldg. United States v. Am. Mainte- purpose producing any duct for the visual Indus., 271, 277, nance 422 U.S. 95 S.Ct. conduct, print depicting or medium such ... (1975)), 45 L.Ed.2d 177 but must be person if such knows or has reason to know statutory construed "with reference to print that such visual medium will be [they context in which found and in a are] transported foreign in interstate or com- pur- manner consistent with the [statute’s] Judiciary merce.” Id. In the Senate Commit- But, pose,” contrary government’s id. to the discussing scope, Report tee the statute's assertions, legisla- in view of section 2252A’s Committee stated its history apparent tive it becomes that Con-

593 Indus., 422 tim Bldg. place Maintenance took intrastate and the one v. Am. tele- 2150, 271, 279-81, L.Ed.2d phone 95 S.Ct. call that U.S. crossed state lines did not (1975) scope limited (discussing Thus, contain threats. Id. at 213-214. with the jurisdiction associated federal while there was evidence that defendants in or “in com phrase “engaged commerce” an telephone had made interstate call to ‘affecting to “the broad opposed merce” as victim, there was no evidence indicat- jurisdictional language”); commerce’ ing that the call contained threats. at Id. cf. Alderman, 641, v. 565 F.3d United States 214. “[F]ind[ing] no evidence of threaten- (9th Cir.2009) 645, that an (holding 647-48 communication,” ing interstate we re- jurisdictional in the felon in identical hook versed the conviction. Id. at 215. body armor statute ensures possession Similarly, Sutcliffe, in v. United States body that the statute would not criminalize jurisdictional we held that an identical intrastate, produced citing armor 875(c) § hook in 18 U.S.C. was satisfied Polanco, 555, States v. 93 F.3d United electronically where the sent “[defendant (9th Cir.1996), proposition for the threats security and social to in- numbers jurisdictional in the felon in same element ternet servers located across state lines.” “insures, of a firearm statute on possession (9th Cir.2007). 505 F.3d In that basis, case-by-case that a defendant’s case, government presented evidence implicate actions interstate commerce to website, the defendant’s which con- (internal constitutionally adequate degree” threats, uploaded tained the to various omitted)). quotation marks in multiple servers located states. Id. No- recognized of As the First Circuit its tably, holding we relied on MacEwan in Lewis, at precedents, own see that “as both the to engage means com- previously interpreted we too have merce and the method which transac- similarly-worded criminal statutes re- occur, tions the Internet is an instrumen- quire crossing the actual of state lines. tality and channel of interstate commerce.” Korab, we addressed MacEwan, (quoting Id. 445 F.3d at 875(b), guilty U.S.C. which someone is 245) (alteration quotation and internal if of federal extortion he “transmits omitted). However, marks the defendant’s interstate commerce communication provide use of the Internet did not a suffi- containing any injure threat ... jurisdictional satisfy cient basis to person of another.” 893 F.2d Rather, hook. we went on to note that the Cir.1989) omitted) (emphasis (ellipsis in website, defendant’s containing original). We held the statute re- threats, by way crossed state lines of In- quired prove that the ternet servers in three different states. themselves, in telephone threats that case Id. calls, traveled across state lines. Id. at Nader, There, government’s threatening phone all of the reliance on 713, misplaced. calls between the defendants and the vic- 542 F.3d is Nader ad- preserve intention that the will have the the balance between the law showing per- responsibilities that the affirmative burden of enforcement of federal offi- [h]and, charged son knew or should have known cials one on their state and counterparts, the materials described ... will be local other. 95-438, (1977), transported foreign Rep. reprinted in interstate or com- S. No. at 16 as cogni- merce mailed. While the Committee in 1978 U.S.C.C.A.N. 53. We are recognizes jurisdictional preserving element is zant of that same federal-state bal- prove, interpretation often a difficult one to it nonetheless ance our section I.B., 2252A(a)(l). requirement necessary believes that this See also Discussion infra. mail, transport, ship por- to or child telephone calls within uses “whether dressed than inter- single state —intrastate rather nography, and its connection to interstate Act,” calls—can violate the Travel Rather, state requires it that the commerce. 1952(a), the use prohibits which U.S.C. mail, transport, ship or child defendant foreign “any facility in interstate or pornography interstate. to further certain commerce” with intent Thus, precedent our indicates that crimi- (emphasis activity. Id. at 716 unlawful punishing nal the transmission of statutes added). holding that intrastate tele- In “in interstate or for- the relevant material jurisdic- calls sufficed to meet the phone eign require the material itself commerce” hook, phrase that explained tional we the here, lines. Yet as the to cross state foreign “in commerce” modi- interstate or concedes, images none of the “facility” rather than the fied the noun Wright transported comput- to Andrews’s Therefore, at verb “uses.” Id. 717-18. Indeed, the state of Arizona. none er left illegal that the defendant’s was sufficient city traveled outside the of Tucson.8 in “facility involved a interstate conduct commerce”; that necessary it was not To the extent the also

facility in interstate itself to be “used” Internet, argues standing that use of the commerce. Id. at 718. Because tele- 2252A(a)(l)’s alone, juris satisfies section com- phone facility was a of interstate reject that merce, requirement, dictional we con telephone defendant’s use of the juris- distinguishes on facts. committing the offense satisfied the tention these What dictional nexus. Id. at 719. holding this case from those cases that use, alone, standing provides Internet 2252A(a)(l) contrast, By section does not nexus, jurisdictional that sufficient is Thus, “facility.” include the word impossible of those eases it was to each phrase foreign “in interstate or commerce” images question determine whether the proscribed modifies the actus reus in the actually crossed state lines. See MacE mailing, transporting shipping or statute — wan, 241-42; Lems, 554 F.3d Act, pornography. the Travel Unlike (“[I]t 2252A(a)(l)’s impossible say at 210-11 with jurisdictional section element any certainty given packet is focused not on the means the defendant that a mes- [a 2252A(a)(l) requires foreign 8. That we hold section term “interstate or commerce” as transport images meaning property the defendant to across state "the from movement one surprise gov- lines should come as no to the state to state or one another from state to ernment, position took same before country.” Finally, jury another was told jury. closing argument, prosecutor transport ship simply that or means ”[t]o jury: told carry something place send or from one must, transportation another.... how- regard you’re getting With to Count if ever, involve the movement of the materials in up hung being files transferred interstate, is, question either across state connection, that direct client-to-client lines, is, internationally, or from one that client-to-client connection is not country to another.” cannot affirm a lines, "[W]e crossing spend state don’t a lot of theory criminal conviction on the basis of a guilty. time on it. Find him And then not presented jury.” to the Chiarella v. Unit- go charge, attempted to the next distribu- States, 222, 236, ed 445 U.S. 100 S.Ct. charge]. tion [the lesser included (1980). Indeed, only jury 63 L.Ed.2d 348 Not was the following government’s request, jurisdictional jury not told that the statute's ele- the district court instructed the purely intra- Wright guilty ment could be satisfied find of Count it first had to files, knowingly transport- state transmission of it was told the find "that the defendant shipped depiction opposite. reject government’s ed and We visual interstate exact foreign engage history. commerce.” The court defined the invitation to in revisionist ways that is bro- the “in com- or file be transmitted considered interstate sage take the pieces] requirement images into smaller will merce” to reach trans- ken distance; route in the routers shortest mitted via the Internet. We address each time.”). for the shortest route in in turn. arguments search these uncertainty, face of that those In the A. Interstate Predicate Act use was proof held that Internet

courts sufficient, it was reasoning because government argues The that while Internet just likely that use of the as images may the themselves not have trav or in- entirely remained intrastate either lines, eled across state their transmission states, multiple very “the interstate volved except would not occurred the have for finding of the Internet” nature favored prior communications from the defendant’s images in com- that the traveled interstate through file the server IRC network to the MacEwan, 244; Lew- merce. 445 F.3d at undisputed FBI. It is that this initial con Thus, is, F.3d at 215. both MacEwan nection occurred across state The lines. that, proposition Lewis stand for the government contends that it would non be “ wheth- impossible it is to determine where protect ‘necessary sensical to intermedi images receipt pornography of child er the steps’ pornography trafficking— ate in lines, use of the state a defendant’s crossed such as the defendant’s intrastate DCC satisfy- may proxy serve as a for Internet image only transmissions that be occurred requirement. interstate commerce ing the prior cause of interstate communications.” Thus, according

However, government, to the in question MacE- an the that both terstate act predicate is that satisfies section and Lewis left unanswered wan 2252A(a)(l)’s jurisdictional by use element. Wright’s case: whether presented Internet, alone, sufficient standing is government initially our relies on satisfy re- the “interstate commerce” Mohrbacher, decision in States United that the undisputed where it is quirement (9th Cir.1999), themselves did not cross state images “whether downloading images addressed light of our lines. conclusion computer from a bulletin board constitutes require, does so that a statute we hold shipping transporting or within the mean- defendant’s mere connection to Inter- ing of terms as used in 18 U.S.C. satisfy jurisdictional re- net does 2252(a)(1).” There, § the defendant down- where there is evi- quirement undisputed loaded child from a computer in never question dence files in bulletin Denmark. at 1043- board Id. state crossed lines. being convicted of transporting After dilemma, Perhaps recognizing sexually explicit this material in violation of 18 2252(a)(1), argu- § argued offers two additional U.S.C. defendant First, following wrong the Third Circuit’s that he convicted under ments. MacEwan, in approach re- section of the statute. Id. at 1043. We question, the issue. The proper agreed, explaining downloading frames is according government, receiving to the “whether more akin to materials than to is up a file or setting transporting shipping server to transmit them. Id. by pornography through government points the internet use 1050. The to one iso- Mohrbacher, transporting something involved lated statement where we IRC Second, gov- responsible pro- commerce.” said: who are interstate “Those customer, images argues Congress viding ernment to a mak- statute, that it al- them available on a bulletin clarifying amended criminal scheme. of the overall portion by sending them via electronic or board the nexus of with and con- is not mail, charged problem Our whether properly are ‘interstate’; rather, images transporting activity is ‘local’or shipping victed 2252(a)(1).” (emphasis omit- Id. the crime involves neces- long under ... so as ted). element, must interstate the statute sary (internal citations as valid.” be treated apposite Nothing Mohrbacher omitted)). presented here. jurisdictional question the Indeed, did we in Mohrbacher nowhere that reject government’s the view We “in inter- jurisdictional mention even satisfy the entirely intrastate acts Wright’s Rather, requirement. commerce” state requirement commerce statute’s interstate which the language activity. prior of interstate solely because consti- distinguish conduct meant to relies First, read the extent that Smith can be to transporting images, shipping or tuting Wright’s connection to the suggest statute, from meaning within provides adequate an basis IRC network a them under dif- receiving possessing or ignore jurisdiction, this would for federal irrele- Mohrbacher is ferent subsection. 2252A(a)(l). The stat- the text of section purposes of this case. vant “transport that the defendant requires ute point more on is United Somewhat any ... child ... in interstate commerce Smith, 846-47 States of im- transportation The pornography.” Cir.1986). There, mailed the defendant focus, than the connec- ages is the rather containing film undeveloped, unprocessed in commerce tion to a network interstate to an out-of- images teenage girls of nude It was pornography. that contains child argued at 844. He developer. state Id. to the inter- through Wright’s connection undeveloped film did unprocessed, that the allegedly network that he advertised state mailing] ... “knowingly constitute pornogra- willingness exchange engag- ... of a minor depiction visual transport any im- though he did not phy, Id. at sexually explicit in conduct.” ages through those channels. (em- 2252(a)(1)(A) (quoting 18 U.S.C. accept government’s argument To added)).9 rejected Smith’s ar- phasis We 2 con- be to sustain Count would “that the exclusion of un- gument, holding viction based on conduct of coverage film from the statute’s processed acquitted alleged in 1. Count Count pornography the child laws impede would in 18 U.S.C. violation by protecting necessary a intermediate (d), 2251(c)(1)(A),(c)(2)(A), Wright §§ children,” exploitation in step the sexual make, knowingly print publish did fact that the film was undevel- because the seeking and advertisement notice harm to vic- oped eliminated neither receive, offering exchange, display, im- produce nor the incentive to tims de- reproduce visual distribute added); see ages. (emphasis Id. at 846-47 minors en- involving the use of Kelner, pictions States v. also United conduct, (2d Cir.1976) (“[W]e sexually explicit gaging not feel do knowing having or reason to know regulate Congress powerless be notice and advertisement will such matters in commerce when the interstate foreign com- transported interstate or activity represent a rela- features of small, computer. unimportant, merce means tively a sense jurisdictional though issue in there was no 9. The statute at issue in Smith had same 2252A(a)(l), that case. jurisdictional hook as section 2251(c) Thus, punishes person involving munications threatening phone section exchange por- of child who advertises calls made after the charge set forth in the person if “such knows or has nography part indictment were not of the crime of that such ... conviction, reason to know advertise- and therefore could not form ... transported will be interstate ment jurisdiction). the basis for 2251(c)(2)(A) 18 U.S.C. commerce.” government provides a third reason added). (2003) (emphasis Section why we should consider Wright’s prior in- hand, 2252A(a)(l), requires on the other activity jurisdiction. terstate as a basis for transporting know he is defendant It argues to hold ignore otherwise would actual across state images lines. See that the statute the transportation includes Korab, (rejecting also 893 F.2d at 214-15 of child “by computer.” We government’s argument that conduct disagree. in connection with the crime of which Congress added phrase “by any acquitted defendant was could be used to including by means computer” following jurisdiction). Therefore, satisfy holding foreign “interstate or commerce” in 2252A(a)(l) that section can be by satisfied predecessors, section 2252A’s 18 U.S.C. use, e.g. predicate advertising, Internet 2251(c)(2) 2252(a). §§ Pub.L. No. 2251(c), would conflate it with section (1988). 100-690, 7511,102 Stat. 4181 To acquitted. which was sure, adding phrase be “including by Second, sustaining Wright’s conviction computer” signals Congress’ intent to call interstate conduct based on outside the particular attention to computers as a 2252A(a)(l) scope actual of section would is, “means” of interstate commerce—that a contrary Sutcliffe, be to Korab and where by means which child pornography may be being we held that the act criminalized transported interstate. See Webster’s the statute at issue must itself travel Third New International Dictionary 1143 Indeed, rejected across state lines. Korab (2002) (listing among the uses of the word nearly argument a identical now “include” to “call more attention to the Korab, by government. advanced single by item or smaller stressing class government argued January that a the fact of its existence or the fact of its placed by call telephone interstate the de- overlooked”). having not been But that fendants to the victim satisfied the inter- Congress computers listed particu- as one requirement. state communication lar means of transport interstate does not logistical F.2d at 214. The call concerned permit treating computer transport some- pertaining details to the defendants’ extor- differently how from all other means scheme, including tionate spe- defendants’ Lewis, interstate travel. See 554 F.3d at cific instructions to the victim on making (“The plain language of the statute payment. Id. We held such conduct shipment indicates that we are to treat conviction; or a insufficient to maintain by computer transmission way the same call an interstate was not essential element we would shipment by any or transmission any the crime since did not contain means.”); Schaefer, other Thus, 501 F.3d at 1202 rejected threats. Id. Korab holding (“The act, phrase ‘including by computer’ predicate spec- that a defendant’s interstate movement; a though perhaps necessary ifies method of interstate completing offense, provides government must still that any sufficient basis for establish jurisdiction computer-related where that act was not an es- movement crossed state lines.”). sential element of the crime of conviction. Whether the defendant trans- (holding ported mail, sea, See also id. that interstate com- pornography by knowingly trans- Any individual who must still by computer, or through or in such ports, ships, or mails state lines. prove it crossed interstate or for- a manner as affect that an interstate we hold Accordingly, film any photograph or eign commerce here, Wright’s connection predicate act— prohibit- in a depicting engaging a child provide network —does to the IRC in the simulation of such ed sexual act or jurisdiction un- for federal basis sufficient act, any an or individual who receives 2252A(a)(l). der section selling or sells purpose for the or film which has been photograph such B. Amendments shipped, through or mailed transported, a manner as to inter- or such Next, argues affect foreign commerce shall be fined state or Prosecution Pornography Effective Child $25,000 or less than not more than (the Act), enacted Octo- Act of 2007 $5,000 fif- not more than imprisoned or 110-358, 8, 2008, Pub.L. No. ber see years than two or years teen less Congress’ clarified intent Stat. both. 2252A(a)(l)’s jurisdictional hook section the trans- always encompass meant to added). (emphases at 60 Section Id. over the In- of child

mission prohibited the actual use of minors ternet, of whether the files regardless conduct, sexually also engage explicit disagree parties state lines. The crossed language. contained the “affect commerce” ver- the 2007 Act “clarified” as to whether bill, proposed In to the response See id. section “significantly expanded” sus Attorney Patricia M. Assistant General 2252A(a)(l)’s Beverly Cmty. reach. See Wald, writing Department on behalf of the 1259, Belshe, Hosp. Ass’n v. Justice, the words of recommended (9th Cir.1997) (addressing whether a sub- foreign or “affect interstate commerce applied pending to a sequent enactment at 61. commerce” be deleted. Id. While determining whether the statute by case recognized that Department the Justice “substantially] change[d]” or clarified constitutionally proscribe Congress could law). therefore discuss the relevant We activity Clause such under its Commerce history in some detail. legislative proposed power, it was concerned that the purely cover intrastate language would 1978, the Protec- Congress In enacted distribution, based Exploita- Against tion of Children Sexual theory that commerce is ‘affected’ (the Act), adding tion Act of 1977 processing in that of the film or 2252, 2251, of and 2253 to Title 18 sections that moved photographs utilize materials Pub.L. No. 95- the United States Code. opinion, commerce. In our in interstate (1978). passing In the 1977 92 Stat. investigation prosecution pure- or Act, the con- Congress was concerned with be left ly local acts of child abuse should pornography and nection between child authorities with federal involve- to local finding that children be- prostitution, child to those instances ment confined prostitutes as and as the ing used both or facilities of interstate which the mails subjects pornographic materials had be- actually are used or intended commerce nationwide, in- multimillion dollar come a of the film or to be used for distribution society as dustry that harmed children question. photographs 95-438, 5-8, re- S.Rep. No. whole. omitted). (internal In re- citations 42-45. Id. printed, in 1978 U.S.C.C.A.N. the more sponse, Congress replaced 2252 stated: proposed, As section broadly reaching phrase “affect interstate pornography produced child using such in- commerce,” foreign with the more limit- terstate materials. See 18 U.S.C. 2252(a)(4)(B), foreign §§ “in interstate or 2252A(a)(4)(B), ed commerce.” 2252A(a)(5)(B). so, Congress recognized In doing Congress that, recognized jurisdictional important enacted, element was an previously as the production stat- preserving component the balance be- ute did not account for those cases where depictions tween federal and state law enforcement the visual actually had not 53-54; lines, responsibilities. See id. at see also crossed state or where there was no supra. n.6 proof producer’s knowledge that they transported, would be so and remed- In Congress enacted the Child ied its expanding concerns the statute’s (the Pornography Prevention Act 105-557, reach. See H.R. Rep. at 26-27 Act), adding statutory section 2252A to the (1998), reprinted in 1998 U.S.C.C.A.N. 2252A(a)(l), pro- framework. Section 678, 695. vision under which was convicted punishes transportation Thus, the 1996 Act significant in sev- pornography, jurisdic- included the same First, respects. eral in leaving unchanged “in foreign tional interstate or commerce” jurisdictional language of section element the earlier as enacted section 2252(a)(1), Congress again rejected the 2252(a)(1). 104-208, Compare Pub.L. No. jurisdictional broader reach encompassed (1996), 110 Stat. 3009-28 with Pub.L. by the “affecting commerce” language. (1978). 95-225, No. 92 Stat. so, doing Congress reinforced its earlier concerns with respect maintaining unchanged While the 1996 Act left balance between federal and state law en- jurisdictional 2252(a)(1), hook from section forcement of transporting child pornogra- Act, years passage two after of the 1996 Second, phy. Congress bring chose not to jurisdic- the Congress 1998 added a new jurisdictional the reach of transporta- the 2251, tional prohibits to section which basis tion offense in possession line with the production of child pornography. See offenses, it as did in 1998 with the child 105-314, 2974, Pub.L. No. 112 Stat. 2977 pornography production statute. In other (1998). 1998, Before pun- section 2251 words, Congress did not amend section any in person produc- ished involved 2252A(a)(l) prohibit transporting any pornography tion of child where per- such pornography child produced “that was us- son knew or had reason to know that the mailed, materials that have been or pornography would be in transported in- shipped transported or in interstate or for- commerce, foreign terstate or or if the eign commerce.” pornography actually transported. so (1996). § 2008, See 18 U.S.C. 2251 Congress The 1998Act passed the 2007 Act. expanded jurisdictional reach part of sec- Based in on a in finding Act tion 2251 to include situations in which the pornogra- “[t]he transmission of child produced using “was materi- phy using the Internet constitutes trans- mailed, als that have been shipped, portation commerce,” or in interstate Pub.L. transported 110-358, in interstate or foreign 102(7), § com- Congress No. amended (1998). § merce.” jurisdictional 18 U.S.C. In so the provisions in sections amending 2251, 2252, Congress brought section and 2252A in a section titled pornography production the child “Clarifying statute pornography.” ban child analogous possession statutes, 110-358, line with Pub.L. No. 103. Most relevant 2252A(a)(l) already prohibited here, the possession of in section in- Congress reach, the 2007 Act dictional we consider any means or “using phrase serted change in commerce effected a substantial foreign or to have facility of interstate 2252A(a)(l), “in inter- replaced and rather than a clarifica- “ships,” or” after section affecting interstate com- with “in or at 1265. Beverly, state” tion. See Thus, 4002-03. merce.” Stat. the 2007 Act a Though Congress labeled 2252A(a)(l) Act, following the section clarification, it that mere to so construe knowingly “[a]ny who punishes person law, a matter of way ignore would both as mails, using any transports ships or or Stores, City at see Circuit U.S. foreign facility of interstate or means or fact, as a matter of 121 S.Ct. affecting in or interstate commerce or jurisdictional use of Congress’ deliberate means, by any including foreign commerce modifiers, Beverly, 132 F.3d at 1266 n. see pornography.” child by computer, that an (Congress may formally declare doing long act clarifies the law so as so argues that the 2007 contrary would not run to the statute’s Congress always meant Act confirms that text). 2252A(a)(l)’s ele- actual jurisdictional for section by any satisfied use predicate ment to be Second, to reach Congress while chose Internet, and that we should so re- wholly some intrastate conduct with in 1996. construe the statute as enacted possession spect distribution First, disagree. enacting section We no pornography, it made similar deci- 2252A(a)(l) 1996, Congress made no In- respect transportation. sion with jurisdictional hook change relevant deed, above, explicitly rejected as stated legislative 1977 Act. The inserted language that would have reached such history Congress makes clear that settled conduct. language on the “in interstate commerce” squarely scope because of its limited Finally, recognized other courts have rejected proposed an earlier bill Act, they the 2007 are bound despite in- “affecting would have reached conduct time of the by the statute as written contrast, in 2007 By terstate commerce.” (inter Lewis, 554 at 216 offense. See Congress regulate chose to to the outer of sec preting pre-amendment version authority by limits of its Commerce Clause characterizing 2007 Act tion 2252A and inserting “affecting com- interstate jurisdictional cover “expanding] as language. Cong. merce” Rec. See Swenson, 335 Fed. age”); United States (state- 2007) (daily ed. Nov. H13591-92 Cir.2009) (applying Appx. Rep. Conyers) Congress’ of (stating ment stating government that “the Schaefer against “that child prohibitions intent concedes, must, gov as it that this case is reach the full extent of its statute”). by pre-amendment erned authority”); id. at H13592 constitutional sum, In we hold that at the time of (“The (statement Goodlatte) Rep. pro- of 2252A(a)(l) offense, re- Wright’s section posed legislative expand fix ... would government prove that the quired the to jurisdiction prosecute to these crimes pornography images actually crossed Internet This is the when the is used. undisputed state lines. Since it is broadest assertion of interstate commerce images none of the that form the basis can make power Congress that the consis- lines, state there is insuf- Constitution.”); Count crossed tent with the see also Cir- Stores, Wright “transported] 115, 121 ficient evidence City 532 U.S. at S.Ct. cuit by any ... in interstate ... commerce light Congress’ earlier efforts means, including by computer, any child juris- a more to afford the statute limited Accordingly, Wright’s reverse testified that handcuffs were re- we pornography.” 2 conviction. his Count moved. Andrews stated that she then Wright go asked if he would like to down- Knowledge Wright’s II. apartment stairs from the and answer Next, Wright challenges questions Englander’s parked suffi some car ciency as to both Counts Wright agreed of the evidence out front. to answer their and 3 on the basis that he did not know questions; he testified that he felt he had count specific charged Andrews, files each According no choice. on his and contained child were longer was no he handcuffs when accom- pornography. counters panied the to Englander’s officers car. guilty admitted such knowl Englander Detective also testified that he Agent Andrews and Detective edge Wright being did not recall handcuffed Englander and his convictions should be way to the car and that Wright stated along sustained virtue of this confession was not handcuffed during questioning. corroborating with sufficient evidence. However, Wright testified that he was ini- tially handcuffed and thrown on the floor Where the relies on a apartment of his for approximately fifteen confession to meet its defendant’s burden minutes, and that he remained in hand- proof, it must two types introduce being cuffs while taken to Eng- Detective (1) corroborating evidence: “sufficient evi majority lander’s car and for the of ques- criminal dence to establish that con tioning inside the car. core duct of the offense has oc (2) curred”; “independent evidence There dispute was also a as to whether tending to establish the trustworthiness of Wright was read his Miranda rights be- Lopez- the admissions.” United States v. questioning. Agent fore Andrews and De- Alvarez, (9th Cir.1992). Englander tective both testified that Eng- Wright principally challenges this second lander read Wright his Miranda rights requirement, arguing his statements and that Wright waived those rights. should never have been introduced be However, Wright testified that he was nev- Therefore, they voluntary. cause were not rights. er read his since knowledge respect Next, Wright testified that he asked on Counts and 3 turns on whether his ad three separate speak occasions to to an admitted, properly missions were we must attorney. Specifically, Wright stated that examine whether the district court erred he asked the if get officers he could his cell in denying Wright’s suppress motion to phone order to call an attorney friend. statements. according But to Wright, he was told that The district court held a suppression apartment he could not return to the Andrews, hearing, Agent at which Detec- phone retrieve his and that there was no Englander, tive Wright and all testified. need for him to speak lawyer. with a Both A number of factual disputes were re- Andrews Englander testified that by testimony. vealed their example, For requested never Wright speak to a law- Agent Andrews testified that when the Andrews, yer. Englander, Wright all Wright’s apartment, FBI first entered agree seem to that questioning lasted they placed Wright both and his roommate forty-five between minutes and an hour. Dittfurth in in handcuffs order to conduct However, a sweep premises. at the Neither nor Englander tape- Andrews conclusion of the initial sweep, they Andrews recorded the conversation had with Cir.1981) (9th (holding “[h]and- while argued in the district Wright

Wright. necessarily cuffing suspect a does not dic- to do so violated that their failure court finding custody[,]” it is a factor rights. tate a Wright’s process due consider). court should He the district court denied district that he on three requested also testified suppress in a two-line motion to a friend was occasions to call who different Order: that he could not attorney, an but was told reviewing hearing evidence After phone apartment to his where his return counsel, by filed memorandum contrast to was located. This is stark Sup- the Motion to will DENY Court An- testimony, in which both the officers’ (# 55). press Statements Englander Wright drews and stated have believes would the Court While wanting speak never mentioned if these statements were been better all they he so lawyer, requested, but that had it, require not the law does taped, immediately stopped the inter- would have cannot. Court also at Craighead, 539 F.3d view. See any findings factual The absence (listing among the factors to consider considerably court frustrates the district cus- interrogation an in-home was whether Relying on review. United appellate our at suspect todial “whether the was (9th 539 F.3d 1073 Craighead, States v. suspect point restrained” and “whether Cir.2008), Wright argues that he was leave or informed that he was free to was questioning custody police at the time of interview”). signifi- It terminate the is also therefore entitled to Miranda and was not was told Wright cant that whether or not receive. warnings, which he did While leave, simply he he was free to could determining a defendant is consti whether home, being since it return to his was warnings tutionally entitled to Miranda (concluding searched. See id. review, it is neverthe subject to de novo leave, the despite being told he was free to 1082, inquiry. a fact-intensive Id. at less reasonably defendant would not have be- Kim, 1084; v. see also United States go agents lieved he was free to because Cir.2002) (whether home); searching were custody” pur “in for Miranda person is (9th Cir.1982) Lee, 467-68 v. fact; of law and poses question is a mixed curiam) (per (holding defendant would not findings factual are reviewed for clear er have felt free to leave where he “was ror). ... ‘in suspect is considered “[A] in a FBI car questioned closed with two if the custody’ purposes for of Miranda an police officers for well over hour while of his freedom suspect ‘deprived has been in and around his investigators were ”way.’ Craig any significant of action in house”). court resolve The district must head, (quoting 539 F.3d at 1082 Miranda for this disputes these factual order Arizona, 384 U.S. 86 S.Ct. Wright court to address whether (1966)). 1602, 16 L.Ed.2d 694 Yet there Miranda, and thus custody purposes disputes factual im are several threshold adequate have received Miranda should determining whether portant warnings. felt free to leave. For exam would have by simply resolve the issue that he remained in Nor can we ple, Wright testified to Mi- being assuming was entitled the entire time he was handcuffs them, warnings, received and subse- that randa questioned, period a lasted between a valid waiver. The dis- quently minutes and an hour. See Unit effected forty-five Booth, 1231, finding trict court made no as whether v. 669 F.2d 1236 ed States

603 It plicit ruling. argues to counsel on the its that right invoked his requested he call- separate suppression occasions boiled down a hearing three to cred- minimum, Wright’s his friend. At a ing contest, ibility in which case the district led the officers to should have statements “unmistakably court found the defendant’s See clarify Wright’s intention. United unbelievable, testimony adequately finding (9th Jara, 746, v. la F.2d 750 de States required by the ‘essential’ facts Rule Cir.1992). Instead, Wright testified that 12(d).” However, cases on which the worry, that he was not was told not to he government inapposite. relies are For ex- arrested, being and that he could not re- Whitworth, ample, in v. apartment get phone. to his his turn (9th 1268, Cir.1988), we held that while the court did specifi- district of factual findings The absence cally request address the defendant’s Wright’s of impedes our review claims also counsel, implicit in the district not made court’s rul- that his statements were volun tarily. ing “In was that the court determining agent’s voluntariness believed the confession, a a testimony ‘examine[ ] of we whether it was defendant who cir will was overborne defendant’s initiated a conversation with the officers surrounding the giving cumstances of a following request his initial for counsel. ” Schriro, Doody v. 596 F.3d confession.’ Whitworth, However, in the district court (en (9th Cir.2010) banc) 620, (quoting clearly grounds articulated two for deny- States, v. United 530 U.S. Dickerson ing suppression the defendant’s motion 2326, 147 120 S.Ct. L.Ed.2d 405 and provided findings upon factual which it (2000), nom., grounds vacated on sub other Indeed, ruling. based its the court credit- (U.S. Doody, Ryan 78 U.S.L.W. agents’ testimony ed the in finding both 2010)). Voluntariness is deter Oct. the defendant received Miranda by considering totality mined his warnings and that statements were circumstances, including scrutiny “close of voluntarily. made Id. We held that those facts.” Id. Federal Rule of Under findings clearly were not erroneous. Id. 12(d), Procedure Rule “[w]hen Criminal Here, court the district made no factual a deciding factual issues are involved only findings theory and the identified in motion, state the court must its essential denying suppression its order motion findings on the have held record.” We is that the were not required officers compliance (formerly with that rule 12(e)) record their “particularly important Wright. Rule in a conversation with ... case where we examine all the sur But number of grounds raised a rounding United States v. circumstances.” suppress, required motion to which Castrillon, Cir. important disputes to factual be resolved. 1983) omitted). (internal quotation marks gave The district court no indication result, require “we statement on the As all Agent believed Andrews’s and Detec- findings upon of those factual record Englander’s testimony tive and found grant district court its based the Wright’s testimony entirely incredible. (remand suppress.” motion Id. Rather, court the district seems to have question in the voluntariness credibility avoided making any determina- adequate findings). factual absence tion, deny choosing instead to on the suppression motion basis that the that a maintains re- required this was not to record the unnecessary mand is case because findings district court’s factual are im- interview. obtain, view, Prieto-Villa, possess ability to 910 the v. In United States in- Wright wanted to pornography. Cir.1990), we held that F.2d that Dittfurth showing troduce evidence findings required factual remand for boys minor attraction to had sexual to determine impossible where it is Wright computers. with proficient was denial of a the district court’s basis precluded that district court claims id. at 610 suppress. See also motion act” evidence under Federal “prior this a revision to Rule (holding that absent 404(b) because Dittfurth Rule of Evidence 12(d), put must their essen- “district courts raises testify. not did record”). We findings factual tial First, response. in arguments two cases, held that earlier recognized Wright never actu- government claims “affirm court would appellate that the any such evidence and there- ally offered findings any factual if rea- the absence of preclude court did not it. fore the district of the evidence would sustain sonable view Second, that, argues as- motion,” of had overlooked the denial exclude the suming the district court did 12(d). of Rule Id. requirements so, evidence, though on proper it was to do omitted). (internal marks Prie- quotation grounds. alternative that factual find- recognized also to-Villa 27, 2006, January filed a On important the con- ings particularly are Act Notice of Intent To Present Other hearings. Id. at 609- suppression text of 404(b). Wright under Rule Evidence 10. pieces to introduce four different sought Therefore, we reverse the denial of respect prior with acts of his evidence motion to and remand Wright’s suppress roommate, First, in- Dittfurth. court to instructions to the district records from Mount tended to introduce findings explaining make factual essential Mary College Newburgh, New Saint for its decision.10 the basis York, Dittfurth a com- showing received from puter competency waiver Saint III. Wright’s Trial Fair Claims Mary’s, Computer well as an “A” in as 404(b) A. Exclusion of Evidence Literacy. Wright’s theory for admission Next, Wright argues computer competency dis that Dittfurth’s precluding knowledge evidence Dittfurth trict court erred would show had roommate, Dittfurth, in- necessary charges. to commit the He Shawn call a custodian of records from motive, opportunity, knowledge, and tended to had objective Wright argues evidence on the record the district court also be other drawing the in- which buttresses the fact finder's should consider the failure record added) opposite (emphasis deciding admissibility of inference” terview in (some omitted)); quotation marks ac- Wright's In United States v. internal statements. Yunis, Coades, (9th Cir.1977) United States v. 859 F.2d cord (D.C.Cir.1988) ("[While] curiam), (per adopt a there is no constitu- we declined to rule recording requirement confessions be record- mandating post- tional the electronic means, course, by any particular ... the failure the district ed arrest statements. Of equipment disposal might may support any FBI to use at its disbelief it has of court larger agents' testimony by noting support a inference that the the lack of a witness’ Martinez, accurately portray testimony did the cir- recording. Cf. confession.”). (9th Cir.1975) surrounding (explaining that cumstances Yunis' However, since the district court must consid- circumstances” a wit- "in certain restricted circumstances, may totality story might implausible that "dis- er the ness' be so adopted a testimony support consider that the FBI has belief of can the truth of also denies,” recording policy of not interviews. what the witness but "there must Second, testify. way assumed that Mary’s Wright only Saint to which of introduce, through Wright’s intended to the evidence could be introduced ifwas trial, Dittfurth testimony at that lived with Dittfurth testified. At the close of argu- Wright during period ment, the relevant time the district court indicated that and that Dittfurth was often alone in the agreed that about evidence Dittfurth’s apartment, he had access to where computer knowledge and statements Wright’s computer. According to desktop Dittfurth made allegedly requesting testimony Wright, such would show that Wright give power attorney Dittfurth of opportunity Dittfurth had the to commit relevant; respect were both so with to Third, alleged also through offenses. the Presumed screen Innocent name. Wright Wright’s testimony, intended to in- entry January The minute from Wright’s apart- troduce evidence that after hearing following contains entry: 13, 2003, February ment was searched on Dittfurth; “Further 404B on Shawn he if Wright Dittfurth to encouraged sign over testifies, the regard- Court finds evidence attorney power to Dittfurth of to class, ing testing out of and his businesses, property suggested and statement Wright to have defendant turn Wright country flee before power over of attorney property in Mex- charges against Wright him. were filed relevant; ico his use on-line screen theorized that this evidence would show ‘presumed name of innocent’ is not rele- motive, intent, Dittfurth plan, had the Appellant’s Excerpts vant.” of Record preparation to commit offenses. Fi- (ER) added). at 35 (emphasis In later nally, testify Wright would that Dittfurth court, hearings with the defense counsel gay.com, visited the site where his online also discussed possibility of calling identity was “Presumed Innocent.” co-worker, White, Holly Dittfurth’s to tes- Wright argued this evidence would (since tify to his credibility law enforce- show identity Dittfurth’s and knowledge ment him they interviewed when searched and that identity Dittfurth’s “on-line Wright’s apartment) and to establish Ditt- ironic in light of this case.” teenage boys. furth’s interest White Argument Wright’s place on motion took would she testify that when worked at a nearly later, year January on Dittfurth, shop skate with he passes made Wright’s counsel that the govern- indicated at boys around of 12-15. ages Defense agreed Wright ment testify to allow Shorb, counsel calling also discussed Nick Dittfurth lived during the rel- year 12-13 who boy old worked with However, evant time period. govern- Dittfurth at shop the skate who would ment pieces contested the other three testify that passes Dittfurth made at him evidence, proceeded counsel defense and showed him pornography. Both argument address her to the district appeared White and Shorb later piece court. As to each of evidence Wright’s list of witnesses trial. introduce, Wright sought to the district There was no court further discussion of asked counsel defense how the evi- 404(b) whether the dence evidence would be com- was relevant should Dittfurth not ing in testify day until the first of trial on January at trial. District See Ct. Docket opening statement, 2008. During No. 374: her Transcript Hearing Motion defense dated Jan. counsel discussed Dittfurth at (concerning 2007 at Ditt- computer literacy); length, furth’s id. at 17 some references (power including to his (Presumed of attorney); knowledge days at from computers id. Innocent name). Likewise, Mary’s screen College, Saint he encour- jury, defense the court recessed following after to Mexico go aged She “apologize[d] to Court.” After the counsel warrant. of the search execution and that she went back day, the the court jury for the told court recessed entry from the earlier minute defense counsel checked the objected to government that hearing and realized January be testi- who would referring to individuals into get me to Dittfurth, permitted none of had arguing that Court “[t]he fying about pow- Ditt- as well as the Mary’s in unless records come the St. evidence should if Mr. going to Mexico pointed attorney The er furth testified. testified, and, yes- I explained as the defense would Dittfurth it nor out that neither impression until terday, I was under the testify. to calling Dittfurth be Dittfurth was morning that Mr. yesterday its initially expressed court The district also Defense counsel testify.”11 to going the evidence to whether skepticism as that she realized the court that she told testify- Dittfurth absent could be admitted Holly calling from precluded would also be However, explicitly the court never ing. be re- requested White White Rather, the dis- such evidence. precluded The district subpoena. from her leased counsel to to defense trict court left it clarify counsel to court then asked defense legal a basis for the court with provide White, to call to she intended whether Indeed, the dis- introducing the evidence. not, “Absolutely responded, she times judge stated numerous trict court Judge.” if could not sure the evidence that he was testifying, Dittfurth’s but come in without in of the rec- The lies our review issue counsel to con- up hand, though that it was to defense one it seems as ord. On (re- ER at 52 him otherwise. See vince actually precluded never district court statement sponding prosecutor’s 404(b) to the Dittfurth. evidence related to without that the evidence was not relevant Rather, court some expressed the district “I haven’t testifying, saying: Dittfurth the evidence skepticism as to whether either, I’m sure yet, that road so crossed in, it to counsel come but left defense could sort going provide some Ms. Williams authority to legal the court with provide to come legal basis to allow trial, day At the of the first do so. end Dittfurth.”); (“I’m having Mr. id. without Ditt- informed the court that parties that, they’re seeing I don’t see how trouble being testify, called to furth was not [Dittfurth], I’m sure relevant without but pro- counsel to court invited defense if it me some book Ms. Williams will show introducing the evidence. a basis for vide (“I’ll are.”); still says they [sic] id. at 53 However, accepted counsel never defense they having seeing how come trouble Instead, rather court’s offer. the district a Mr. Dittfurth called as having without that the district court was realizing than fashion. Not some witness some allowing the evi- open possibility to the fashion, a I being called as witness. don’t legal it had some basis to long dence as as bridge, I can cross that Ms. know see how De- so, withdrew her motion. do counsel see.”). Williams, The court then but we’ll neglected argue counsel therefore fense day. recessed for the pres- court that Dittfurth’s to the district prerequisite at trial was not following day. ence trial continued the argument introducing the evidence—the day’s proceedings, At the conclusion of planning doing so until the they were not was under appears It that defense counsel plan- impression day first of trial. ning and didn’t learn that to call Dittfurth Thus, appeal. advances to us on introducing until jury its amended instruc solely the evidence was not introduced be- tions and the district court made no find provide cause defense counsel failed to on its applicability). Other case law “[ajbsent it, allowing suggests court with a reason for not a ... definitive ruling by because the district court excluded it. the district court that the evi admissible, dence is party does pre Alternatively, may be said that serve the issue of admissibility appeal district court ruled that the evidence was contemporaneous absent a objection,” such not admissible unless Dittfurth testified. that this court’s review only prevent “to interpretation One of the record is that the injustice.” a manifest United States v. district court told defense counsel that it Archdale, (9th 861, 229 F.3d 864-65 Cir. was not to going allow the evidence to 2000). come in testify- since Dittfurth was not need not We resolve whether the district defense counsel prove could to —unless 404(b) court actually precluded the evi- the district court that such a ruling was dence. Under reading record, erroneous. The best support for this view Wright never argued that testimony is the January district court’s 22 minute should in regardless come of whether Ditt- entry, again provided: “Further furth testified —the presented issue now on Dittfurth; 404B on Shawn testifies, he if Thus, appeal. our review is for plain er- the Court finds evidence regarding testing ror. See United Chang, States v. 207 F.3d class, out and his statement to (9th 1169, Cir.2000) 1176 (reviewing for have defendant turn over power of plain error where the “theory of admissi- attorney property in Mexico relevant.” bility not apparent from the context of Thus, the district court conditioned the testimony”); [the defendant’s] United admissibility evidence’s on Dittfurth testi- Sims, (9th v. 1371, States 617 F.2d 1377 fying. Although it had been by decided Cir.1980) (“The presentation of additional point Dittfurth was not going to evidentiary appeal theories on is inconsis- testify, defense counsel indicated in her tent ‘with the salutary purpose of the time- opening statement that she intended to requirement liness to allow the trial judge introduce the evidence. The to make an ruling informed based on the objected then to its introduction at the by issues as framed the parties before the trial, day conclusion of the first and the ” evidence is ... (ellipsis excluded.’ in orig- agreed district court that defense counsel inal) (quoting United States v. Lara-Her- permitted would not be to introduce the nandez, 272, Cir.1978))). 588 F.2d 274 evidence absent Dittfurth testifying. The issue is confounded the fact that The exclusion of the Dittfurth-re 404(b) some of our prior suggest cases that a lated evidence in this case did not lawyer’s failure to grounds state the plain amount to error. For there to be evidence, the admissibility of error, and the dis- plain Wright must demonstrate that: “(1) (2) trict court’s subsequent error; failure to rule there is an the error is clear grounds, precludes obvious, based those us from or subject rather than to reason considering (3) the issue. See dispute; able the error affected the Tafollo-Cardenas, v. 976, 897 F.2d 980 appellant’s rights, substantial which in the (9th Cir.1990) (declining to consider wheth- ordinary case it means affected the out er defendant’s statements were admissible come of the district proceedings; court (4) general hearsay under the exception where seriously error affects the fair prosecutor ness, did not raise the exception integrity or public reputation judi- images illegal Mar- contained element of proceedings.” cial United States v. —an — testimony cus, -, (through Counts U.S. 130 S.Ct. 3— (internal (2010) the FBI’s Dittfurth en- quota- following search 176 L.Ed.2d omitted). couraged Wright sign power over tion marks brackets Dittfurth attorney to and told First, deciding that assuming without country), and flee the that Dittfurth had actually precluded the the district court alleged to commit crimes intent 404(b) introduction of the evidence because testimony (through sexually that he was testify, Dittfurth did was error to do underage boys). interested United Cf. concedes that Rule so. States Kapordelis, v. 404(b) nonwitnesses, applies to under our (11th Cir.2009) (“Evidence that Defendant McCourt, v. decision United States engage in sex- traveled abroad order (9th Cir.1991). See F.2d 1229 also United boys Prague ual trysts underage Cruz-Garcia, n. States 404(b) was, thus, admissible under as (9th Cir.2003). However, argues it that ‘proof identity, ... or knowledge, of ab- the district court should be affirmed on and sence of mistake accident’ intent grounds namely proffered other — with regard to his travel with his cousin propensity was evi evidence forbidden patient former which sexu- during only dence. case ally images of explicit boys were creat- argument propensity cites for its is a Ne regard ed and with to his collection of case Appeals agreeing braska Court of images (ellipsis of pornographic children.” 404(b) permits McCourt that intro with Sebolt, v. original)); United States by the of a third-party’s duction accused (7th Cir.2006) (“Prior 910, in- acts, that there prior holding but the evi a stances of sexual misconduct with child properly was pro dence excluded based on may victim a establish defendant’s sexual Gardner, grounds. v. pensity See State thereby interest children and serve as 605, Neb.App. 498 N.W.2d 609-10 to evidence of the defendant’s motive com- (1993). Gardner, In the defendant was mit a charged involving offense the sexual a convicted of sexual assault of child children.”). exploitation of that sought to introduce evidence since the father a victim’s had molested child once Moreover, “the of standard admis before, guilty party. he was the at Id. sibility when a criminal defendant offers propensity This is classic evidence. similar acts evidence a shield need not as contrast, By Wright seeking was not to be as prosecutor restrictive as when a uses introduce that Dittfurth evidence had com- such as a evidence sword.” United States (2d Aboumoussallem, prior involving mitted acts child pornogra- 726 F.2d Cir.1984) (discussed Rather, phy images. Wright to approval wanted with McCourt, that had the explaining establish Dittfurth kind of 925 F.2d at that computer necessary knowledge exemplary to obtain “Aboumoussallem is of a num (through pornography introduction of ber cases in which have courts admitted records), Mary’s college that purp Saint similar acts evidence for defense Wright’s Dittfurth knew that computer oses”).12 argues third-party culpability 12. The that also the Ditt- dence of is not admissi- subject testimony simply possible ground furth-related ble affords to more if it rather, stringent third-party suspicion person; culpability against standard such for must Ignacio, coupled tending evidence under Guam v. F.3d 608 be with substantial evidence Cir.1993). Guam, (9th directly person we held that "[e]vi- that connect with actual error, charges However, Wright possession we find are re- though we preju- that such error the CDs. additional testi- spect not convinced Of the stan- plain error Wright Wright only diced under mony present, did not that Wright’s principal dard. defense was penchant concerning evidence Dittfurth’s possession Dittfurth for responsible boys potential for had adolescent even Practically images. the child verdict; jury’s jury to affect the knew case all of the defense’s was directed business, ran several online could explaining ways in Dittfurth significant computer and therefore had ex- responsible party. have been the For himself, Dittfurth knowledge and that told argued ample, the defense Wright to flee to Mexico is weak evidence computer and the desktop computer laptop knowledge of Dittfurth’s of contraband. use Wright purchased Dittfurth to Considering jury all the evidence knew networked; that there was an icon were Dittfurth, excluding about this for a called Wright’s desktop program testimony additional did not amount “pcAnywhere,” which allows one plain Vallejo, error. See United States v. another; to access one of the files Cir.2001) 1023-24 charged in 3 was modified while Count (finding culpability exclusion of third-party (in- Wright was at a trade business show evidence harmless where defendant ferring it had to Dittfurth who be viewed an permitted provide was not answer to Dittfurth alone image); was often crime, question of who committed the apartment; and the seven CDs defendant); if not the United States v. containing pornography found in (9th 1343, Cir.1996) Crosby, 75 F.3d 1347 Wright’s placed briefcase were there (same). Wright put on “Dittfurth did 404(b) would Dittfurth. evidence presented it” defense. He the jury with have shown that Dittfurth was myriad ways in which Dittfurth could have history proficient, making passes had a responsible Any for the been offense. ad- to flee boys, Wright at adolescent told concerning ditional evidence Dittfurth (which following to Mexico the search merely would have been cumulative. Wright argued indicated Dittfurth comput- knew there on the was contraband B. Prosecutorial Misconduct er). 404(b) evidence, Wright calls a number Thus, out even without made by prosecutor, comments either jury sig- a presented the defense during cross-examination his closing nificant evidence that or amount of Dittfurth Indeed, argument, argues that he culpable party. prose was the it seems constitute at of the cutorial misconduct jury like the shifted least some and warrant reversal. prosecutorial blame to Dittfurth because it To obtain a reversal acquitted based on (inter- improper interpretation commission of the offense.” Id. at trict 615 court’s of Fed. omitted). quotation emphasis 404(b). nal marks recently explained R.Evid. This court Rushen, Perry Guam v. F.2d that, relies on 713 a unlike defendant’s constitutional Cir.1983), (9th addressing a 1447 habeas case right deprived claims that he was of the a claim defendant's constitutional that he defense, present a "the standard substantive deprived right to a fair trial. Neither forgiving is more where the evidence was Peiry involve Guam nor the exclusion of erroneously purely evidentiary excluded on 404(b) Wright While a brief evidence. makes Stever, principles.” United States v. 603 F.3d right present mention of his "constitutional 747, 3, Cir.2010). Thus, (9th n. 756 755 trial,” complete and receive a defense fair Guam not control here. does clearly argument his revolves around the dis- 610 as a guilt, denigrate must both dant’s defense

misconduct, Wright establish sham, implicitly for cred- vouch witness’s United prejudice. misconduct and See (9th ibility, his or her credibil- or vouch for own Sarkisian, 966, 988 v. F.3d States Hermanek, v. Cir.1999). ity.” United States objects defense counsel “Where (9th Cir.2002) (internal 1076, 1098 F.3d alleged prosecutorial trial to acts of omitted). However, “vouching citations error misconduct, review harmless we typically prosecution involves the bolster- an ob appeal; absent such on defendant’s testimony of its witness.” own jection, we under the more deferen review Nobari, v. 574 F.3d United States States plain tial error standard.” United (9th Cir.2009). (9th Hinton, F.3d Cir. v. 1994).13 identifies, the statements we Of troubling the most to be the “trifecta” find First, Wright argues during comment prosecutor’s delivered person his prosecutor improperly inserted closing argument: and submitted al disbelief of defense Now, handling I’ve these cases for been testimony jury. own to the his years a number of and I’ve seen where prosecutor’s contends that the statements my defense —where the defense of it was impermissible vouching. constitute advanced, roommate has been and I’ve seen the that it was defense advanced rule that a prosecutor “The virus, trojan some sort of hacker or may personal opinion express lines, something then along those guilt the defendant’s or his in the belief well, seen, somebody I’ve also did some- credibility firmly of witnesses is estab interview, thing inappropriately, v. McKoy, lished.” United States that, this, something lines. along those Cir.1985); see also 1210-11 trifecta, But never have I seen the all Kerr, place. very— three this same This is (9th Cir.1992) (“A prosecutor has no busi you unbelievably this is that remarkable jury telling impres ness the his individual guys got this. bet- to witness So we’re evidence.”). of vouch “Improper sions the win, on FBI ting Shawn Dittfurth to the prosecutor places occurs the when the place, guess and I some prestige of the wit the behind hacker, trojan, mystery man to virus by providing personal ness assurances of show, problem but the is none of those (brackets veracity.” the witness’s Id. things ever showed. omitted). Im internal marks quotation ER at 594. proper vouching prosecutor also occurs where the made several prosecutor testimony impressions other references to his own of suggests the of his throughout closing argu- in the evidence supported by witnesses is example, ment. For on one such occasion presented formation outside prosecutor remarked: jury. v. Younger, 398 F.3d Cir.2005). (9th 1190 also “We have [Wright’s] denying Of course that he improper vouching identified and related said he knew he should not have child circum range computer. misconduct in a broader of his I’m not pornography on not, in prosecutor may why denying stances. A sure he’s that because if stance, somebody express opinion you an of the defen- asked me should have troubling. object prejudice inquiry 13. While did not of therefore to all Our is case, allegedly improper in this guided by statements he harmless error review. objected to those comments we find most server, your probably on on is not to label child correct this mis Nobari, vouching, conduct as see say of F.3d your computer, I would course 1078,15 prosecutor’s comment not, no, no, no, not saying but here he is we only gave jury impression no pornogra- weren’t—there was case, evidence but it improperly phy anything and I never said about introduced evidence outside the record— por- how I knew I have child shouldn’t i.e., the prosecutor’s experience with simi nography computer. on this lar cases—as a of commenting means on added). ER at (emphases Though less the defense’s credibility. case and egregious, there are several more exam- Galloway, United States v. Cf. See, ples e.g., in the ER at record. (6th Cir.2003) (statement 624, 632-33 dur (“And places along there’s a number ing closing argument held to be improper what way where I think the defendant prosecutor where jury told the about his said, only supported by not was cases); experience drug trying McKoy, evidence, completely illogical but was so it (jury F.2d at 1211 could have con ridiculous.”) absolutely (emphasis was add- testimony prosecutor, strued the of former (“The ed); id. at 589 Dockmans said it was trial, who testified as a witness at “as sweater, they’d but I remember a think ‘expert testimony’ personal on his based distinguish suede Tasmanian devil vest and knowledge prior experience and his sweater.”) added); (emphasis from a cases”). other Though prosecutor’s (“But one, betrayal, id. at 590 the last technically statement might not be viewed the three prongs betrayal different this improper as it vouching, certainly im the opening were alluded to in state- proper, “denigrat[ed] since it the defense ment, I most that one remarkable of found Sanchez, aas sham.” United States v. all.”) added).14 (emphasis Cir.1999); F.3d see also government responds many While Hermanek, 289 at 1101 (“Although on, of the statements focuses it appellants attempt characterize the only includes a passing prosecutor’s reference to the argument as improper vouch ing, comment. prosecutor’s “trifecta” While it their aptly contention viewed more addition, Wright improper, identifies a "many number of since were there instances prosecu- instances in the in which the record flatly testimony contradictory important aspects tor referred to defense's case as case, proper issues in the and was for the ridiculous," 586, "absolutely ER at an "ab- government argue jury ought to the that 591, notion,” began questions surd and id. at version”). appellant’s to believe the during Wright his of cross-examination with "incredibly,” id. at We have not 547. found vouching, In the prosecu usual case the improper. remarks such to be as these See merely give impression tor does not his of the Velarde-Gomez, United States v. 224 F.3d case, highlight experi defendant's or his own 1062, Cir.2000) (9th (not 1073 misconduct to ence; rather, explicitly govern he assures the testimony closing argu- refer to defendant’s in See, Kerr, veracity. ment e.g., witnesses’ 981 "ridiculous”), "silly story” ment as a and (prosecutor F.2d at 1053 described the testi grounds, rev'd en banc on other 269 F.3d 1023 mony "very of one witness as (9th Cir.2001) (en banc); Borg, Williams v. candid,” "candid," another as and a third as 737, (9th Cir.1998) (no 139 F.3d 744-45 mis- "honest”); Smith, United v. States 962 F.2d prosecutor conduct called where the defen- 1992) (assuring jury Cir. the that "stupid” dant on four different occasions and government's just the get "could not witness closing argument referred to the defense’s as up say here say” and whatever he wanted "trash”); Molina, to 934 F.2d (alter (9th Cir.1991) prosecuted perjury) or he would be (prosecutor’s state- omitted). suggest ations ment that to "[i]t’s unbelievable” that government’s the lied witness under oath not testifying agent miscon- blank whether the prosecutorial point an allegation as lied, in evi- that the referring noting prosecutor to facts not referred duct for dence.”). in the prosecutor’s closing argument the several times to Accordingly, the improper. calling agent defendant a liar. Id. at “trifecta” comment was Combs, prosecutor also 567-68. the prosecutor’s ref- Similarly, repeated the the that if impermissibly referenced fact evidence erences to how he viewed the jury the had testifying agent the believed improper. See id. at were also lied, per- the would have committed agent (“[P]rosecutors’ not only must arguments his jury, “flush[ing] ten-year career down evidence, be based on facts in but should the toilet.” Id. at 568. phrased in a manner that it is be such jury prosecutor distinguishable. the is The prosecu clear the that Combs is to Wright impugn Agent rather than insert- did not force to summarizing evidence tor knowledge testimony way and into Andrews’s the same the ing personal opinion case.”). Rather, in in prosecutor the did Combs. his closing the argument, prosecutor contrast that Wright prosecu- next contends the Wright’s testimony that Agent ed with manipulated tor misstated the evidence Englander. Andrews and Detective Un Wright imply Agent and to forced that Combs, like in where prosecutor explic Andrews lied on the stand. He first ar- itly impugn forced defendant to to gues prosecutor Wright forced veracity testimony, agent’s pros agent” call refer- “rogue Andrews —in argument improper. ecutor’s here was not employed during ence to the she tactics (“In Molina, See at 1445 a case Wright’s interview. It is that true essentially that reduces to which of two “rogue to prosecutor agent” used the term true, conflicting may stories be rea Andrews, Agent Wright refer and infer, and argue, sonable hence adopting term in up response. wound lying.”); one of the two sides is also see See ER at 544-45. Defense counsel ob- Garcia-Guizar, United States v. 160 F.3d statement, jected prosecutor’s to the (9th Cir.1998) (distinguishing Mo objection her was no sustained. There is grounds lina Garcia-Gui that the prosecutor indication was misstat- zar, interjected own prosecutor Rather, engaging he evidence. personal opinions about defendant’s fairly argumentative in a cross- credibility); witness’s poke examination order holes Sayetsitty, United States v. Wright’s version of the facts. There was (9th Cir.1997) (“Criticism of defense nothing improper about the prosecutor’s subject theories tactics is proper conduct in that instance.16 closing argument.”). way also takes issue prosecutor pitted Wright’s Finally, Wright argues credi- bility against government’s prosecutor witnesses. him improperly insulted several Combs, He throughout relies on United States 379 times and in cross-examination (9th 564, Cir.2004), prosecutor’s F.3d we closing argument. 573 where held it improper Wright points following examples: was to ask the defendant to the Rather, points troubling. prose- particularly they to a of number other consist questioning indeed, cutorial lines of he contends mostly argumentative questioning; being resulted in the evidence misstated. many the district court sustained of defense record, Upon thorough we our review the objections counsel’s on that basis. do not find of these to be statements (1) referring Wright’s statement that he preju has not established dice. being promis- improper used avoid The statements were rela cuous, tively prosecutor isolated incidents over the stated “Like are course of day a ten trial. The “trifecta” only options? those the two I comment mean far by egregious was the most statement you couldn’t be in a committed relation- (2) by prosecutor, made though it too was ship?”; prosecutor asked Wright mitigated by defense counsel’s excellent cross-examination, during proud “You’re rebuttal,- which focused extensively on the your collection of child pornography, aren’t three defenses to which prosecutor’s “No, you?” (Wright responded: it actual- “trifecta” comment referred. While ly disgusts me that people would trade Wright’s credibility certainly was a key (3) things.”); prosecutor such referred trial, issue at there is no indication that the to T-shirt slogans Wright up came with for jury testimony. Rather, discredited his (4) OffensiveTs.com; his business the pros- the jury acquitted Wright of Counts 1 and jury ecutor told the practice 4-10, “reinforc[ing the] conclusion that the burning illegal; blockbuster movies was prosecutor’s remarks did not undermine (5) prosecutor and responded to the jury’s ability to view the evidence inde theory defense’s that law enforcement was pendently fairly.” United States v. him” get jury “out to telling the 1, 15, Young, 470 U.S. n. 1038, 105 S.Ct. Wright was not Pablo Escobar or “the (1985) 84 L.Ed.2d (finding plain no error Larry Flynt of child pornography.” Not despite prosecutor’s improper vouching one of these improper. statements was part based in on the fact that jury “Prosecutors have considerable leeway to acquitted the defendant of the most seri strike ‘hard blows’ based on the evidence faced); charge ous he United States v. de and all reasonable inferences from the evi- Cruz, (9th Cir.1996) 82 F.3d 863-64 Henderson, dence.” United States v. (finding allegedly improper prosecutorial (9th Cir.2000) (holding pros- comments to be harmless where the jury ecutor’s statements the defendant acquitted defendant of one of the charges, “had an everything” excuse for and “was indicating ability weigh its the evidence trying just to skirt the like he tries law— prejudice). without everything skirt else” improp- were not comment, Other than the “trifecta” (internal er) omitted); quotation marks prosecutor’s misconduct fairly mild Rude, United States v. 88 F.3d 1547- and was mitigated by the general court’s (9th Cir.1996) (not improper prose- instructions, jury given at the beginning of cutor to refer to the defendants as trial, as well as at prosecu- the end of the “crooks,” times, or “evil” at least eleven tor’s closing argument during the final to use other derogatory remarks such as jury instructions that “[arguments man,” “con or “trolling around for victims” by lawyers statements are not evidence.” times). over 90 Necoechea, See United States v. Having established that at least Cir.1993) (general instruc- prosecutor’s some of the statements in this tion sufficient to cure vouching). mild Ac- case were improper, Wright must also es cordingly, prosecutor’s improper state- prejudice. tablish question is “wheth ments amounted to harmless error. probable er it is more than not that the C. Access to Mirrored Hard Drive

prosecutor’s conduct materially affected Hermanek, the fairness of 27, the trial.” 2006, July On the Adam Walsh Child F.3d at 1102. Act, Safety 109-248, Protection and Pub.L. the Act), subject to hard (the day was him an additional Adam Walsh

120 Stat. third, and he testing; to forensic at 18 U.S.C. drive law. Codified into signed that the Public Defender altered contends Federal 3509(m), Act § the Adam Walsh (FPD) employees its are of discovery expert and criminal pre-trial of the balance Act, meaning of the of court” under the Rules “the 16 of the Federal under Rule 16, “government the the FPD is a facili- Rule and office Procedure. Criminal Under the Act. ty” under must turn over to the defense the defen obtained from material evidence the violation Wright As claims use in intends to dant rights of based of a number constitutional Act, courts Before the case-in-chief. its being made “reason on the evidence not “mir includes held that such material had him, of to our review that ably available” of evidence image” copies computer ror States v. is de novo. See United issue United cases. See child (9th Larson, 1094, 495 F.3d 1100-01 Cir. Hill, F.Supp.2d v. States 2007) (de novo of Confrontation review (C.D.Cal.2004) J., (Kozinski, sitting by des claims on exclusion of an Clause based However, Adam under the ignation). now inquiry); v. Baha area of any Act, deny, in “a court shall Walsh (9th monde, n. 2 445 F.3d Cir. by criminal proceeding, any request 2006) (de novo of denial due review duplicate, copy, photograph, to defendant claims). process compulsory process and reproduce any property or otherwise review the court’s denial of a We district pornogra material constitutes for continuance abuse of discretion. Unit ..., makes long as the phy so Government Rivera-Guerrero, 426 v. ed States reasonably avail or material property (9th Cir.2005). 1130, 1138 We review de U.S.C. able to defendant.” questions of the Adam Walsh Act’s novo added). 3509(m)(2)(A) (emphasis § The Kaczynski, construction. United States “reasonably avail to goes Act define Cir.2009). 1120, 1123 “ample providing as the defendant able” viewing, and inspection, for' opportunity “reasonably 1. made Was evidence facility of at a examination Government Wright? available” to defendant, or material property the par On November attorney, her individual his or and protec stipulation entered into a ties to furnish may qualify seek to defendant access outlining Wright’s order tive ' testimony trial.” Id. expert image “bit-by-bit copy” of hard 3509(m)(2)(B). stipulation provided drive. three re- Wright arguments care, raises custody to “remain in the evidence mirror-image copy spect to his access States Attor and control the United in this case. hard drive ney’s counsel Office.” Defense First, hard drive was argues Lavaty, permit he were expert, defense Rick him, “reasonably evidence; stipulation not made available” ted to access violating they a number of constitutional would be “buzzed provided thus second, the dis- to the during regular he claims that office hours” U.S. rights;17 Attorney’s that when Wright a mid- Office and denying trict court erred analyzed, drive was to re being have allowed the hard trial continuance would bring a facial general allegations process. that he does not chal includes process, constitutionality. due effective assistance lenge was denied the Act’s counsel, confrontation, compulsory point), Wright main in a secure location. The U.S. Attor- moved to continue trial ney’s space” Lavaty’s inability established a “secure based on Office to finish his examination, expert up citing Lavaty’s the defense to set his own other obli- gations the FPD and conduct the examination. with office. Counsel equipment also noted that her necessary, permit- If it was own schedule and work expert prevented demands had her from concen- computer ted to leave hard trating fully on the case. The running At district overnight. drive the conclu- court session, denied the continuance. re- sion of each the hard drive was to later, newed the motion one on week Janu- employee be returned to an authorized 11, 2008, ary again. but it was denied placed the office where it would be back government agreed a secure location. The Wright argues that the evidence was not not to “look at material the defense reasonably made him available to because may space, team leave the secure in- the district recognize court failed to to, cluding, but not limited exhibits and budget defense office’s and staffing prob- documents, ... perform any nor forensic lems, Lavaty’s other duties with FPD analysis bit-by-bit provid- hard drive office, and the court’s earlier denial of ed to the defense team.” If the Wright’s request for an expert, outside running overnight, govern- was left which was denied because it was deemed promised ment to “make at- reasonable costly. too

tempts to be sure no one uses offered Interpretation of the Adam Walsh Act is space expert’s secure the defense ab- an circuit; issue first impression this sence.” indeed, the Seventh Circuit only is the parties

After the stipu- entered into the yet Court of Appeals to consider the Act. lation, Lavaty “computer assembled a fo- Shrake, See United States v. 515 F.3d 743 rensics cart” to (7th Cir.2008) take over to the U.S. At- (rejecting a facial challenge torney’s Office for his examinations. On constitutionality). to the Act’s There are a 27, 2006, November defense counsel told number district court cases considering Lavaty the district court that felt “com- whether defendants given “ample op were stipulation fortable” with the and protec- portunity for inspection, viewing, and ex planned tive order and on commencing his amination at a facility” Government examination. Counsel estimated that La- material, pornography yet none of vaty approximately needed 150 hours for particularly helpful those cases is the full forensics exam and to create all Wright. necessary

the exhibits for trial. Wright principally relies on United permitted The defense was Knellinger, access the States v. F.Supp.2d is, (E.D.Va.2007). There, evidence for fourteen months —that the district court (the from November date of the concluded the defendant had not been stipulation), to the start of the trial given ample an opportunity to conduct an January 2008. Over the course of that examination of the evidence and thus or time, defense counsel raised various bud- dered the to turn over to the get, timing, staffing problems copy defendant a of the hard drive. Id. at preventing counsel maintained were In Knellinger, the defendant intend adequately examining defense from pursue theory ed to the child 4, 2008, hard January drive. On less than charged possess he was (which two weeks trial had produced using before been was not real minors. adjourned 647; numerous up Speech times to that Id. at see v. Free Ashcroft 1389, 152 prepa-

Coalition, 234, 122 hamper access “would defendant’s 535 U.S. S.Ct. case,” the (2002). this and thus ordered ration of ex The defendant’s L.Ed.2d 403 mirror Wright a government provide witnesses, pri would have to be who pert However, that copy of the hard drive.18 retained, they would testified vately little, any, if relevance to ruling bears they if could to work on the case agree proposed terms government’s whether the gov at a their examination only perform Wright “ample opportunity” provided facility. Knellinger, ernment the evidence. to examine expert testified at 647-48. One F.Supp.2d normally charged approxi that while he argument essentially boils $135,000 for his services a mately following contention: down to case, charge ap he would requires Act that the defen- Adam Walsh $540,000, excluding moving proximately equal have ac- government dant and the in a he had to expenses, case pornography evidence. cess to the child away office. analyze the material from his It provides. not what the Act Yet this is that even if at 647. He also testified Id. given only that the defendant be provides at a his examination perform he were to evi- opportunity” to examine the “ample able facility, “he wouldn’t be event, In none of the cases dence. attorney or the effec to service the client For exam- Wright apposite. cites is (internal tively.” quotation Id. marks Cadet, ple, omitted). result, agree As a he would not Cir.1984), we held that the Knellinger’s. on a case like Simi work required identify is wit- larly, expert testified that he another testimony may crime nesses to the whose on the ease “because of the would not work It in that context that exculpatory. be moving difficulty equip associated with an we observed that sides have “[b]oth to, adequately performing ment his right, equal op- and should have an equal in, facility.” analytical work Government to interview portunity, [such witnesses].” Therefore, at 648. the terms of the omitted). Id. (internal quotation Id. marks effectively precluded Act Adam Walsh decision Nor does Seventh Circuit’s only pursuing defendant from his viable Shrake, after help Wright. in Shrake defense. rejecting challenge the defendant’s facial easily Knellinger distinguishable. 3509(m), expressed §to the court its con- Knellinger, Wright’s forensic ex- Unlike prosecution fact that cern over the pert, Lavaty, claimed he was “comforta- provided private expert its own consultant parties’ providing ble” with the terms for drive, an of the hard but denied copy exact Wright access to the hard drive. the defense the same. 515 F.3d at 746. to conduct was afforded fourteen months asking The court stated that rather than and does not claim that testimony by the district court to foreclose examination by into agreed upon terms entered which the prosecution’s expert, district parties precluded Wright pursuing from doing, appropriate denied re- “[t]he court Rather, theory. viable defense lief—which defense counsel never argument equal bases much of his on the fact on sought have been access —would being Adam Act at 747. had no occa- prior Walsh terms.” Id. Shrake law, into the district court found sion to define what it meant “access passed “access,” However, by government’s proposed equal terms of terms.” law, prior and reversed its After the Adam Act became tion for reconsideration Walsh government's granted the mo- order. district court referring to have been to ment that appears court the mIRC file server was install- (when long ed before 2002 types of forensic tools each side had Dittfurth moved Wright). Practically, performing to it in examina- this weak- available its ened Indeed, Wright’s defense—that Dittfurth the court that was tion. noted person responsible the for the por- not “Shrake’s counsel did seek access on nography. terms, equal perhaps prosecu- because the expert any

tion’s did not use forensic tool According government, to the Wright expert that was unavailable to the defense the program installed mIRC on his com- he examined the hard Id. when drive.” puter Day in November 2000. On Thus, any request for defense “access on trial, dire, during prosecutor voir the pointless. terms” have been equal would Lavaty asked his opinion about when event, any clearly In not Shrnke does hold Wright program installed the on mIRC the defendant and the computer. prosecutor tried to estab- an given equal must be amount of time to program lish that the was installed evidence, which Wright’s examine the Lavaty 2002 as had testified. The main contention. prosecutor’s theory was that the 2002 cre- ation date for the mIRC files—which La- parame- need not define the exact We vaty testified Wright showed that installed give ters of what it means to a defendant program the in 2002—was due to the in- “ample opportunity” child-por- to examine stallation of a newer version of the mIRC nography Wright permitted evidence. was program, thus replacing the older 2000 period to access the hard drive for a Lavaty version. admitted that this was a fourteen months in a secure location within possible explanation, but also offered rea- Attorney’s Wright the U.S. Office. makes discounting theory. sons for such After no claim that parties’ arrangement asked, prosecutor you “Did test that?” disrupt attorney-client threatened to Lavaty conceded that he had not. relationship or that the defense team’s product compromised work was Wright argues that government’s short, way. Wright given “ample theory was program mIRC had been —that opportunity inspection, viewing, for and installed in 2000—was not disclosed to the Act. just examination” under the See United defense until days five before the start Cordy, States v. Lavaty of trial. When admitted on the Cir.2009) (in governed by a case the Adam stand he had not tested for the rea- Act, adequate date, Walsh defense counsel gave had sons he for a 2002 installation preparation for trial having Wright time based on a one-day asked for continuance so access to Lavaty data for three requisite could conduct the months). tests. The court request. denied the

Wright argues that the district court 2. Did the court denying district err in denying abused its discretion in

Wright’s motion a mid-trial request for a disagree. continuance. We for

continuance? First, January days six before the Next, Wright argues trial, that the dis start of moved for a continu- improperly request trict court denied his ance because the had appar- (five a one-day ently just mid-trial days prior) continuance so disclosed an Lavaty could conduct further forensic expert report alleging test mIRC ing. Wright testing claims that programs was file-server were installed in necessary government’s argu- to rebut the told the district court that (em- government’s medical assertions” necessary because the

the continuance was added)). newly phasis disclosed evidence government’s in- 1 of the specifically “relates Count above, Wright given As we held mandatory ten-year dictment which is prepare his de- “ample opportunity” report of the foren- minimum count considering fense. Yet even without just done this examination which was sic team had to fourteen months defense expert their file server Tuesday last over a testing, conduct forensic had program.” who wrote the guy who is the prepare expert testimony in re- week to 1. jury acquitted Wright of Count government’s theory that sponse to the Therefore, that the continu- to the extent Wright the file-server software in installed Wright have allowed to better ance would Therefore, the court did not 2000. district as to he has prepare his defense Count denying Wright’s abuse its discretion prejudice. not See Rivera- established one-day mid-trial continuance. motion for Guerrero, (holding F.3d at 1139 that 426 prejudice the defendant must establish continuance). expeH S. Are the FPD and its em- of a

from the denial office FPD ployees court” or is the “the However, entirely not clear that the “government facility” under office government’s theory about the 2000 instal- the Act? only to 1. To the lation date related Count alleged extent it related to the other Finally, Wright briefly argues that FPD counts, a total of eleven Wright given was judi- expert counsel and its are under the (seven days days) prior to the business court,” ciary, employees and thus of “the government’s start of trial to rebut the 3509(m) (requiring see 18 U.S.C. enough evidence. This more than was care, pornography to “remain in the custo- Barrett, time. v. 703 See United States dy, either the and control of Government Cir.1983) (“[F]airness F.2d court”), or the and that the FPD office is a requires adequate given that notice be “government facility,” (providing see id. findings defense to check the and conclu- inspection of the contraband at a “Gov- (quot- government’s experts.” sions of the Therefore, facility”). ernment Kelly, 420 ing United States v. F.2d 29 maintains, defense counsel was entitled to (2d Cir.1969) (internal quotation marks copy a mirrored of the hard drive. Both omitted))). arguments contrary are to the statute’s

Moreover, structure, despite Lavaty’s language concession which differentiate Government, court, theory, that he did not test for the 2002 he between (includ- provided persuasive support during his the members of the defense team “defendant, testimony testing. attorney, his or her even the absence of prosecutor any may concluded his voir individual the defendant seek When the dire, qualify expert testimony on to furnish at defense counsel established direct to trial”). event, Lavaty’s theory examination that was did Indeed, certainly possible. Lavaty provide “ample opportu- testi- the defense team nity” that it that to examine hard drive at a “Gov- fied was his “belief’ the mIRC Wright’s comput- facility” Attorney’s ernment Of- program was installed U.S. —the assuming er in Even the FPD office is a December Rivera-Guerre- fice. Cf. (denial ro, facility,” at the continu- “Government the statute does not F.3d inability provide the.de- require ance “resulted in.the defendant’s facilities. present any might multiple evidence that rebut fendant access simply instruct that Jury ror for the court to Instruction D. “[possession pertains as it argument final that he images proof can include that the defen- challenges jury trial denied a fair because images,” dant had control over through 10. ‘We on Counts 3 instructions possible even if such control would be jury instruc de novo whether review images not Wright did know whether the elements of a accurately tions define However, in the computer. were on his statutory offense.” United States Sum immediately that in- paragraph preceding (9th Cir.2001). mers, struction, jury the court told the “[a] issues; two neither of which Wright raises possession something if the person has persuasive. find we presence of its and has person knows First,- argues he the court’s it, physical pres- control of or knows of its require jury instructions did ence and has the and intention to power images knew the find than can person control it. More one be in the indictment specifically charged were if possession something each knows of they con computer were on his or presence power its and has the and inten- disagree. We pornography. tained child tion to control it.” The district court jury The was instructed to find whether: clearly jury Wright instructed the had (1) knowingly possessed “the defendant images computer to the on his know were desktop computer and hard disk possess in order to them. depiction a of a minor containing ... visual (2) conduct”; in engaged explicit sexual E. Error Cumulative computer defendant knew that the “the ... a computer contained] and disks visu- Wright also if argues even each in depiction engaged sexually al of a minor alleged error did not rise to reversible (3) conduct”; explicit “the defendant error, reversal to required due their depiction knew that the visual contained in cumulative effect on his trial. computer ... and hard disk ... con- individually if “Even no error depiction engaged of a tained visual minor reversal, supports the cumulative effect of sexually explicit jury

in conduct.” The may support numerous errors reversal.” par- was also told that this case the “[i]n Inzunza, United States v. 580 F.3d stipulated images ties have that the are of (9th Cir.2009). An important factor pornography.” child Thus there is no considering the cumulative effect of errors question jury was asked whether strength prosecution’s is the of the case. charged knew the files Nobari, See at by par- stipulated indictment —those to on his or contained ties—-were potential We have identified two forms pornography. of error in this case: the exclusion of 404(b) im- prosecutor’s evidence and the Second, Wright contests error, proper statements. on Neither its “possession.” Again, court’s definition of own, However, requires reversal. we rec- in order to convict Counts that much ognize prosecution’s case jury through had to find that Wright’s was based on statements ... ... Wright “knowingly possessed Agent Englander. Andrews and Detective containing ... desktop computer visual remanding Because we are to the district depiction engaged of a minor in sexual fact-finding Wright’s that in court for motion explicit Wright argues conduct.” statements, defining “possession,” suppress the term it was er- those we do not mailed, shipped inter- transported claim of cumulative error Wright’s address See foreign state or commerce. stage proceedings. this Blanco, 382, 397 majority holds that this re- opinion The (9th Cir.2004) ques- (declining to consider is not met for Count but is quirement light of remand of cumulative error tion for 3. Thus the remainder of met Count further fact-find- the district court for opinion only concerns Count 3—the ing).19 agree I with the inter- possession count. agree and I also rulings state commerce CONCLUSION all majority opinion’s with the discussion of reasons, RE- foregoing For we remaining regarding issues Count 3 under Wright’s Count conviction VERSE necessity except the to remand addi- 2252A(a)(l). REVERSE 18 U.S.C. We findings suppression tional on the issue. Wright’s suppress the denial of motion to court ruling of the district was terse Agent Andrews and De- his statements to judge specific and the did not make find- with in- Englander, tective and REMAND stated, “after ings. hearing The court court to make structions to the district reviewing the memorandum evidence findings explaining essential factual ba- counsel, deny filed the Court will AFFIRM as to sis for its decision. We I suppress motion to the statements.” error, though other de- claims brief, agree pages with the Government’s claim of cumulative cline consider his 53-58, that “plain” the error was challenges to his sentence error and his further, ruling not error because the until the district court has found those permitted appellate legal review of the sup- facts essential to our review of the questions though involved even detailed Wright. pression issue and resentenced were not This was a case findings made. panel jurisdiction over all fu- This retains where the statements of appeals ture in this case. agents Wright’s statements were dia- metrically It PART, opposed. simply was a matter AFFIRMED IN REVERSED credibility and the district court PART, obvi- IN AND REMANDED. ously government agents believed the as to HUG, in Judge, concurring part: Circuit happened Wright what was not hand- — a Miranda cuffs, given warning, he was charged As I see this case unambiguous and he did not make an re- acquit- with offenses in ten counts. He was quest lawyer. Wright for a even later all except ted on counts Count and Count admitted trial his statements were vol- subject appeal. which are the of this untary. It what the district is obvious 2 charged Wright shipping with Count simply court and it be me- found would pornography by computer inter- prefer chanical to detail it. I would we state commerce violation of 18 U.S.C. simply affirm that conviction and (c)(2)(A) (d). 2251(c)(1)(A), § Count 3 month sentence. charged Wright possession of child on a hard pornography drive. require jurisdiction

Both counts for federal 2252(a)(1) requirements of 18 U.S.C. knowingly

that the child be Wright's sentencing "begin sentencing process do we court should Nor address Wright’s arguments light at this time. Even if we were to afresh” of our reversal of Handa, affirm Count 3 conviction on review Count 2 conviction. United States v. (9th Cir.1997). fact-finding, of the district court’s the district

Case Details

Case Name: United States v. Wright

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Nov 4, 2010

Citation: 625 F.3d 583

Docket Number: 08-10525

Court Abbreviation: 9th Cir.