RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0327p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 09-5646
v.
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Defendant-Appellant. -
COURTNEY KNOWLES,
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Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 07-20151-001—Jon Phipps McCalla, Chief District Judge.
Decided and Filed: October 12, 2010
Before: GILMAN and COOK, Circuit Judges; OLIVER, Chief District Judge.*
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COUNSEL
ON BRIEF: T. Clifton Harviel, Memphis, Tennessee, for Appellant. Dan L. Newsom,
ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee.
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OPINION
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SOLOMON OLIVER, JR., Chief District Judge. Defendant-Appellant, Courtney
Knowles (“Knowles” or “Defendant”), appeals from his conviction for sexual
exploitation of a minor, in violation of 18 U.S.C. § 2251(a), and for possession of
materials involving the sexual exploitation of a minor, in violation of 18 U.S.C.
§ 2252(a)(4)(B), after a jury trial in the Western District of Tennessee. For the following
reasons, we AFFIRM Knowles’s conviction.
*
The Honorable Solomon Oliver, Jr., Chief United States District Judge for the Northern District
of Ohio, sitting by designation.
1
No. 09-5646 United States v. Knowles Page 2
I. FACTUAL AND PROCEDURAL HISTORY
On May 8, 2007, Knowles was indicted for sexual exploitation of a minor, in
violation 18 U.S.C. § 2251(a), possession of materials involving the sexual exploitation
of a minor, in violation of 18 U.S.C. § 2252(a)(4)(B), by a grand jury in the United
States District Court for the Western District of Tennessee. On February 9, 2009, trial
commenced and lasted three days. The jury found Knowles guilty of sexual exploitation
of a minor and of possessing materials involving the sexual exploitation of a minor.
At trial, Tiffany Mosley (“Ms. Mosley”) testified that, at the time of the incidents
involved, Defendant was both her boyfriend and her brother, as they have the same
father. He lived with her and her four children at 1680 Claire Street in Memphis,
Tennessee from 2004 to 2007. TM #1, the victim in this case, was one of Ms. Mosley’s
daughters. She was between 11 and 12 years old at the time of the offenses.
On Easter Sunday, 2007, Ms. Mosley found a camcorder containing a videotape
that belonged to Defendant in the glove compartment of the Tacoma truck that she
shared with Defendant. As she watched the video, she saw an adult female she knew to
be Melinda Yates in a hotel room in the nude.
Ms. Mosley continued to watch the videotape and saw images of her minor
daughter, TM #1, wearing only a white shirt and socks. The video showed the hand of
an adult male touching TM #1’s vagina. At trial, Ms. Mosley viewed portions of a copy
of the videotape and positively identified her daughter in it, as well as the hand and voice
of Defendant. She was also able to identify the location of the taping as the living room
of her residence on 1680 Claire Street.
Ms. Mosley testified that TM #1 told her that Defendant inappropriately touched
her and videotaped her. TM #1 herself later testified that Defendant had videotaped her
and inappropriately touched her. On April 9, 2007, a day after she found the videotape,
Ms. Mosley had a DVD copy made of the videotape at Wolf Camera. She kept the
videotape and the DVD copy in her purse until April 25, 2007. On that day, she
confronted Defendant in their shared residence with the videotape and told him that she
No. 09-5646 United States v. Knowles Page 3
had made a copy. Defendant then threatened her with his 9 mm handgun and choked
her. Defendant took the videotape from her purse, but not the DVD copy, and fled in the
Tacoma truck. Ms. Mosley called 911.
When the police arrived at Ms. Mosley’s residence, she told them about the
videotape and attempted to play the DVD copy on her computer. However, the DVD
would not play because it had been stained and scratched. Ms. Mosley then gave the
camcorder and scratched DVD to the police officers, who asked her to return to Wolf
Camera to have a second copy of the DVD made. Wolf Camera was able to reproduce
a second copy of the DVD, which Ms. Mosley turned over to the police.
During that same time frame, the police pulled Defendant over in the Tacoma
truck approximately two blocks from his and Ms. Mosley’s residence. The police
recovered his handgun, but did not recover the original videotape.
At trial, the Government did not play the second DVD copy itself; rather, an FBI
agent created another copy to be used in the courtroom. Counsel for the Government,
Mr. Newson, stated:
What I would like to do – for the record, Your Honor, this FBI agent has
made an exact image of Exhibit Number 6, I know he hasn’t testified to
that, but we can have him testify, if we can show that image that he has,
which is an exact duplicate, he has keyed up in the computer – ... – that
he has for purposes of this trial, and I can have him testify later that, in
fact, it is.
Later, FBI Agent Stephen Lies testified that:
These DVD’s [Exs. 4 and 6] were brought to me, and I was -- I made the
copies of these that we presented to the court today. ... [The copy
presented in court] is an exact image of Exhibit Number 6 because I was
able to view the entire contents of this one.
The Government did not move for admission of the FBI-created copy of the
DVD that it played at trial, but instead utilized this copy to question the witnesses about
the facts and circumstances shown in the video. Defendant did not object to the use of
the FBI-created copy of the DVD or to any of the exhibits that the court admitted,
No. 09-5646 United States v. Knowles Page 4
including: the receipt from Wolf Camera dated 04/09/2007; the receipt from Wolf
Camera dated 04/26/2007; and the second DVD copy made at Wolf Camera. Knowles
did not testify at trial, and his counsel did not call any witnesses in the case.
The trial transcript shows that, at 9:20 a.m. on February 11, 2009, the jury, while
in deliberation, requested to view the DVD. The district court permitted the jury to view
the DVD. Neither party objected. At 12:05 p.m. on February 11, 2009, the district court
received a note from the jury stating that “[a]t this time and with evidence available, we
are unable to reach unanimous decision.” The district court instructed the jury to
deliberate for a longer period of time. Again, neither party objected. Later that day, at
approximately 4:00 p.m., the jury returned a verdict of guilty for sexual exploitation of
a minor, in violation of 18 U.S.C. § 2251(a), and for possession of materials involving
the sexual exploitation of a minor, in violation of 18 U.S.C. § 2252(a)(4)(B).
At the sentencing hearing, Defendant claimed, for the first time, that he had not
received a copy of the second receipt from Wolf Camera prior to trial. The court found
this allegation to be insignificant.
Defendant appealed to this court, alleging that the second DVD copy should not
have been admitted into evidence, the copy made by the FBI of the second DVD to show
at trial should not have been played to the jury, and the Wolf Camera receipt dated
04/26/2007 should not have been admitted into evidence.
II. STANDARD OF REVIEW
A district court’s decision to admit evidence in a jury trial that is objected to for
the first time on appeal is subject to plain error review. United States v. Morrow,
977 F.2d 222, 226 (6th Cir. 1992); United States v. Crayton, 357 F.3d 560, 569 (6th Cir.
2004); United States v. Scarborough, 43 F.3d 1021, 1025 (6th Cir. 1994); see also Fed.
R. Crim. P. 52(b). This “plain-error exception to the contemporaneous-objection rule
is to be ‘used sparingly, solely in those circumstances in which a miscarriage of justice
would otherwise result.’” United States v. Young, 470 U.S. 1, 15 (1985) (quoting United
States v. Frady, 456 U.S. 152, 163 n. 14 (1982)) (A prosecutor’s remarks during rebuttal
No. 09-5646 United States v. Knowles Page 5
argument did not amount to plain error.) See also United States v. Hook, 781 F.2d 1166,
1172 (6th Cir.), cert. denied, 479 U.S. 882 (1986) (In the absence of a contemporaneous
objection “an improper jury instruction will rarely justify reversal of a criminal
conviction.”). For us to correct an error not raised at trial: (1) there must be error; (2) the
error must be plain; and (3) the error must affect substantial rights. United States v.
Cotton, 535 U.S. 625, 631-32 (2002) (quoting Johnson v. United States, 520 U.S. 461,
467 (1997)) (internal quotation marks omitted). Assuming “all three conditions are met,
an appellate court may then exercise its discretion to notice a forfeited error, but only if
(4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial
proceedings.” Johnson v. United States, 520 U.S. 461, 467 (1997) (quoting United
States v. Olano, 507 U.S. 725, 732 (1993)) (internal quotation marks omitted). The
inquiry into whether the plain error review affected substantial rights usually requires
a determination that the error affected the outcome of the district court proceedings.
United States v. Olano, 507 U.S. 725, 734 (1993).
A defendant can rely on the plain error doctrine “‘only on appeal from a trial
infected with error so “plain” the trial judge and prosecutor were derelict in
countenancing it.’” United States v. Gold Unlimited, Inc., 177 F.3d 472, 483 (6th Cir.
1999) (quoting United States v. Hook, 781 F.2d 1166, 1172-73 (6th Cir. 1986) (quoting
United States v. Frady, 456 U.S. 152, 163 (1982))).
III. LAW AND ANALYSIS
Knowles claims that the district court erred by: (1) admitting the second DVD
copy because there was no established chain of custody; (2) playing the FBI-created
copy of the second DVD copy during trial because there was no established chain of
custody for the second DVD copy; and (3) admitting a receipt from Wolf Camera for the
second DVD copy, dated 04/26/09, because it had not been disclosed to the Defense
prior to trial.
No. 09-5646 United States v. Knowles Page 6
A. Second DVD Copy
Knowles asserts that the district court abused its discretion when it allowed the
admission of Exhibit 6, which was the second DVD copy made at Wolf Camera, because
a proper chain of custody had not been established. Because Knowles did not challenge
the chain of custody and did not object to the admission of the DVD into evidence at
trial, plain error review is appropriate. See Morrow, 977 F.2d at 226.
As this court has stated, in order to admit physical evidence, the possibility of
misidentification or alteration must be “eliminated, not absolutely, but as a matter of
reasonable probability.” United States v. Allen, 106 F.3d 695, 700 (6th Cir. 1997)
(quoting United States v. McFadden, 458 F.2d 440, 441 (6th Cir. 1972) (internal
quotation marks omitted)). A party must do more than merely raise the possibility of
tampering or misidentification to render evidence inadmissible. United States v. Combs,
369 F.3d 925, 938 (6th Cir. 2004). In fact, “[w]here there is no evidence indicating that
tampering with the exhibits occurred, courts presume public officers have discharged
their duties properly.” Allen, 106 F.3d at 700. Absent a clear showing of abuse of
discretion, “challenges to the chain of custody go to the weight of evidence, not its
admissibility.” United States v. Levy, 904 F.2d 1026, 1030 (6th Cir. 1990).
At trial, the authenticity of the DVD was supported in various ways. The Wolf
Camera name appeared on the first DVD’s exterior and the second DVD copy’s exterior.
Ms. Mosley testified that the DVD, which was admitted as Exhibit 6 without objection
from Knowles, was the same as the DVD she received from Wolf Camera on April 26,
2007. She further testified that she had previously viewed the content of the DVD, that
its content was the same as the content of the first DVD she had made that was
subsequently ruined, and that both DVDs were the same as the original missing
videotape. As portions of the DVD were played before the jury, Ms. Mosley again
confirmed that the content was the same as what she had previously observed. Child
victim TM #1 identified herself in the videotape and testified that the tape was made in
her living room on Claire Street when she was shown portions of the DVD. Moreover,
the portions of the DVD shown comported with the testimony of TM #1 describing the
No. 09-5646 United States v. Knowles Page 7
Defendant’s videotaping of her. Melinda Yates was able to describe the content of the
original videotape and was able to identify herself on the FBI-produced copy shown at
trial.
Special Agent Stephen Lies testified about the original videotape, the first DVD
copy, and the second DVD copy. He stated that the first DVD copy (Trial Exhibit 4) and
the second DVD copy (Trial Exhibit 6) were brought to him in order for him to make
copies to present to the court at trial. Mr. Lies explained that the second DVD copy
contains the same chapters as the first DVD copy, but that he was unable to view all of
the contents of the first DVD copy because it was scratched. Mr. Lies further testified
that the first session on the DVD is of Melinda Yates because he was able to view that
session and he interviewed Ms. Yates.
As stated previously, misidentification or alteration need not be eliminated
completely, but rather must only be eliminated as a matter of reasonable probability.
Combs, 369 F.3d at 938. The testimony of Ms. Yates, TM #1, Ms. Mosley, and Agent
Lies all served to authenticate the second DVD copy. Thus, the district court did not err
by admitting the second DVD copy into evidence. See Cotton, 535 U.S. at 631-32.
Even if we were to find that the district court did err in admitting the second
DVD copy, that admission did not substantially affect the outcome of the case. See id.
Although admission of the second DVD copy served as the basis for playing the FBI-
created copy, the video footage was not the only evidence against Defendant. Tiffany
Mosley stated that she saw the original videotape and that TM #1 told her that Knowles
had touched her inappropriately. TM #1 testified that Knowles touched her
inappropriately and that he videotaped her. When asked in court whether “anybody ever
touched you in a bad way,” TM #1 testified that Courtney Knowles had. She went on
to describe the multiple instances that Knowles touched her. In addition, Sally
DiScenza, a forensic nurse examiner at the Memphis Sexual Assault Resource Center,
evaluated TM #1 and testified that TM #1 told her that her uncle had touched her
“breasts, buttocks and vaginal area, and on three occasions attempted to penetrate her
anal area.” She further testified that TM #1 had physical injuries and found one specific
No. 09-5646 United States v. Knowles Page 8
to sexual assault. All of this testimony strongly implicates Knowles as being guilty of
the crimes for which he was charged, and therefore, the playing of the DVD did not
substantially affect the outcome of the case.
B. Playing the FBI-Created DVD Copy at Trial
For the same reasons articulated above, the district court did not err when it
allowed the FBI-created copy of the second DVD copy to be played at trial. Knowles
has not alleged that the copying process of the second DVD copy for use at trial was
faulty. Moreover, FBI Agent Stephen Lies testified that the copy played for the jury had
the same contents as the second DVD copy. Therefore, the arguments against playing
this trial copy are the same as the arguments against admitting the second DVD copy
into evidence. Playing the FBI-created copy of the second DVD does not rise to the
level of plain error for the same reasons that the trial court did not err in admitting the
second DVD copy.
C. Receipt
Knowles argues that the prosecution violated Brady v. Maryland, 373 U.S. 83
(1963), by failing to make available to him before trial the second Wolf Camera receipt
dated 4/26/2007. His lawyer did not object prior to the admission of the receipt into
evidence during trial. As such, plain error review is the appropriate standard of review.
See Morrow, 977 F.2d at 226.
In Brady, the Supreme Court held that “the suppression by the prosecution of
evidence favorable to an accused upon request violates due process where the evidence
is material either to guilt or to punishment.” Brady, 373 U.S. at 87. The Court in United
States v. Bagley, 473 U.S. 667, 674 (1985), later clarified that “Brady v. Maryland
requires disclosure only of evidence that is both favorable to the accused and ‘material
either to guilt or to punishment.’” (quoting Brady, 373 U.S. at 87). The court further
noted, “[i]mpeachment evidence, however, as well as exculpatory evidence, falls within
the Brady rule.” Id. at 676.
No. 09-5646 United States v. Knowles Page 9
Knowles argues that he did not receive the Wolf Camera receipt during
discovery. He further argues that the receipt is favorable to him because it would have
alerted him to a potential chain of custody, authentication, and best evidence problems.
The Government argues that the Defendant knew of the receipt prior to the request for
admission at trial. It further argues that Brady does not apply to admission of the receipt
because the receipt (1) is not exculpatory; and (2) does not fall into the category of
impeachment evidence.
The receipt is not exculpatory evidence. The receipt corroborates Ms. Mosley’s
testimony and is therefore inculpatory evidence. Knowles’s argument that knowledge
of the receipt would have alerted him to a chain of custody, authentication, or best
evidence issue, is not well-taken. In fact, the receipt helps authenticate the second DVD
copy. Further, this receipt does not fall into the category of impeachment evidence. It
does not pertain to the lack of credibility of any witness. See, e.g., Bagley, 473 U.S. at
676 (“In the present case, the prosecutor failed to disclose evidence that the defense
might have used to impeach the Government’s witnesses by showing bias or interest.”).
Therefore, no Brady violation occurred in this case.
Even if a Brady violation occurred, the failure to disclose the receipt to Knowles
was not a material violation because disclosure would not have resulted in a different
verdict. As this court stated in Coe v. Bell, 161 F.3d 320, 344 (6th Cir. 1998), “the
proper inquiry is whether the Brady violation undermines confidence in the verdict,
because there is a reasonable probability that there would have been a different result
had the evidence been disclosed.” See also Bagley, 473 U.S. at 674 (explaining that
evidence must be “both favorable to the accused and ‘material to either guilt or
punishment’”) (quoting Brady, 373 U.S. at 87). Evidence is material “only if there is a
reasonable probability that, had the evidence been disclosed to the defense, the result of
the proceeding would have been different.” Bagley, 473 U.S. at 682. Defendant has put
forth no argument that having the receipt ahead of time would have altered the result of
the trial. We find that it would not have altered the result of the trial because the
testimonies of Ms. Mosley, TM #1, Special Agent Lies, and Ms. Yates all laid a
No. 09-5646 United States v. Knowles Page 10
foundation for admitting the second DVD copy into evidence. The receipt was merely
supporting evidence in this regard.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM Knowles’s conviction and find that the
district court did not err by admitting the second DVD copy into evidence, playing the
FBI-created copy of the second DVD in court, or admitting into evidence the receipt
from Wolf Camera dated 04/26/2007.