FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-10525
Plaintiff-Appellee, D.C. No.
v. 4:03-cr-01908-RCC-
JASON A. WRIGHT, CRP
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, District Judge, Presiding
Argued and Submitted
July 12, 2010—San Francisco, California
Filed November 4, 2010
Before: Procter Hug, Jr., and Milan D. Smith, Jr.,
Circuit Judges, and Thomas F. Hogan,
Senior District Judge.*
Opinion by Judge Milan D. Smith, Jr.;
Concurrence by Judge Hug
*The Honorable Thomas F. Hogan, Senior United States District Judge
for the District of District of Columbia, sitting by designation.
18167
18172 UNITED STATES v. WRIGHT
COUNSEL
Jon Sands, Federal Public Defender, Heather E. Williams and
Brian I. Rademacher (on the brief and argued), Assistant Fed-
eral Public Defenders, District of Arizona, for the defendant-
appellant Jason A. Wright.
UNITED STATES v. WRIGHT 18173
Dennis K. Burke, United States Attorney, Christina M.
Cabanillas, Appellate Chief, Bruce M. Ferg (on the brief and
argued), Assistant U.S. Attorney, District of Arizona, for
plaintiff-appellee United States of America.
OPINION
M. SMITH, Circuit Judge:
Defendant-Appellant Jason Wright appeals his conviction
and sentence for the transportation and possession of child
pornography in violation of 18 U.S.C. § 2252A(a)(1),
(a)(5)(B). Wright raises numerous issues of alleged error.
First, he challenges his conviction based on insufficiency of
the evidence. With respect to his conviction under 18 U.S.C.
§ 2252A(a)(1), Wright argues that the charged offense
requires interstate transmission of child pornography files, yet
there is evidence that none of the files crossed state lines.
With respect to both counts of which Wright was convicted,
he argues that there is no evidence proving he knew that the
twenty-seven files charged in the indictment were either on
his computer or contained child pornography. Second, Wright
challenges the district court’s denial of his motion to suppress
statements. Third, Wright maintains that he was denied a fair
trial based on: (1) the district court’s exclusion of evidence
under Federal Rule of Evidence 404(b); (2) prosecutorial mis-
conduct throughout the course of the trial; (3) Wright’s lim-
ited access to a mirrored copy of the computer’s hard drive;
and (4) an erroneous jury instruction that failed to require the
jury to find Wright knew the files charged in the indictment
existed on his computer and contained child pornography.
Wright also argues that even if the court would not reverse on
the basis of any of these errors individually, their cumulative
effect denied him a fair trial. Finally, Wright argues that his
121-month sentence was improper.
18174 UNITED STATES v. WRIGHT
We have jurisdiction under 28 U.S.C. § 1291. We affirm in
part, reverse in part, and remand to the district court for pro-
ceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
On January 16, 2003, from the FBI office in Tucson, Ari-
zona, FBI Special Agent Robin Andrews conducted an under-
cover search on a file-sharing program known as an mIRC1
(Internet Relay Chat). Andrews came across the user name
“azgymguy2” in the chat rooms “100%teensexpics” and
“gayteenpics.” After typing in a “trigger” that allowed her to
establish a direct connection with azgymguy2’s file-trader, the
following announcement appeared:
Welcome to my server. I’m fairly open to uploads,
so please just upload stuff you feel is good. How-
ever, I am always looking for huge cocks, young
boys and movies. I hope you enjoy your stay.
Andrews downloaded thirteen files—three of which were
child pornography.2 Andrews conducted a second session that
afternoon, repeating the steps she took in the morning. This
time she downloaded fifty-nine files, twenty-one of which
were child pornography. Andrews conducted three more
undercover sessions on January 27, January 29, and February
4, 2003.
1
IRC networks allow users to chat and share files in real-time, yet files
are not actually transferred over the network. Rather, files are transferred
via direct client communications (DCC), in which two computers connect
directly to each other rather than through the IRC servers.
2
The parties dispute how many of the thirteen files contained child por-
nography. In its brief, the government asserts that all thirteen files
depicted boys under 16 years of age engaged in sexual activities. How-
ever, Andrews testified at trial that only three of the thirteen files were
child pornography.
UNITED STATES v. WRIGHT 18175
According to the government’s expert witness at trial, Sven
Nielsen, Wright’s direct client-to-client connection to
Andrews—that is, the connection Wright used to transport the
images to Andrews—did not go through IRC servers such
“that the actual traffic of sending the file or sending the chat
from that point on d[id] not actually cross state lines.” Nielsen
also explained that, in order to establish a direct client-to-
client connection, the initial request takes “the normal IRC
route,” but once the request is accepted the computers are
connected directly, not through the server. Of course, while
the direct client-to-client communication does not actually
cross state lines, the files are still transmitted over the Inter-
net. See Appellee’s Supp. Excerpts of Record (SER) at 165
(“if Joe clicks ‘yes’ and starts accepting the file, then my
computer will send that file directly over the Internet, not
going through the IRC servers”); see also United States v.
Lewis, 554 F.3d 208, 211 (1st Cir. 2009) (explaining that
while “peer-to-peer” networks, or “direct connection[s]” do
not travel through “central servers,” the transfers are still sub-
ject to Internet communication “associated with the underly-
ing TCP/IP protocol” (internal quotation marks omitted)).
Furthermore, Andrews testified that when she logged on to
the IRC network on January 16 and eventually connected to
Wright’s file-server, from which Wright transported the child
pornography files, she connected through a server in San Jose,
California. See SER at 63; see also id. at 77 (same with
respect to afternoon session on January 16); id. at 142 (Janu-
ary 27 session took place via a server in Fairfax, Virginia); id.
at 167 (“[T]ypically the way people connect to an IRC server
is they just say connect me to the undernet and just pick a
server for me.”).
After matching Wright’s home address with “azgymy-
guy2’s” Internet connection, the FBI executed a search war-
rant at Wright’s residence on February 13, 2003. Agents
seized Wright’s desktop computer and a laptop from the bed-
room of Wright’s roommate, Shawn Dittfurth. While other
agents searched Wright’s apartment, Andrews and Detective
18176 UNITED STATES v. WRIGHT
Jeff Englander of the Pima County Sheriff’s Office ques-
tioned Wright outside the apartment in an unmarked police
vehicle.
Approximately one week after the search, Dittfurth disap-
peared. According to Wright, Dittfurth unexpectedly moved
out of Wright’s apartment. Wright’s defense throughout the
trial was that it was Dittfurth, and not Wright, who was
responsible for possession of the child pornography found on
Wright’s desktop computer. Wright sought to introduce evi-
dence at trial supporting this theory; however, as we discuss
more fully below, Wright claims that the district court
excluded any such evidence on the basis that Dittfurth did not
testify at trial.
In the Superseding Indictment, the government charged
Wright with ten counts relating to the advertisement, transpor-
tation, and possession of child pornography. Count 1 alleged
that Wright knowingly published a notice and advertisement
seeking or offering child pornography in violation of 18
U.S.C. § 2251(c)(1)(A).3 The jury acquitted Wright of Count
1. The government also alleged, in Counts 4 through 10, that
Wright knowingly possessed images of child pornography on
separate CDs, in violation of 18 U.S.C. § 2252(a)(5)(B).
Wright was also acquitted of the possession charges with
respect to those images.
Counts 2 and 3 are the focus of this appeal. Based on
Andrews’s undercover sessions connecting to Wright’s com-
puter, the government charged Wright with transporting nine
files in Count 2. The jury convicted Wright of “knowingly
transport[ing] and ship[ping] in interstate commerce, by
means of a computer, child pornography.” Based on images
recovered from Wright’s computer, the government charged
Wright with possession of nineteen files in Count 3. Wright
3
Under the current text of the statute, Count 1 corresponds to 18 U.S.C.
§ 2251(d)(1)(A).
UNITED STATES v. WRIGHT 18177
was convicted of “knowingly possess[ing] computer disks . . .
that contained images and films of child pornography that had
been shipped and transported in interstate or foreign com-
merce by means of a computer.” The district court sentenced
Wright to 121 months on the transportation count and 60
months on the possession count, to be served concurrently.
DISCUSSION
Wright raises a host of issues on appeal. First, he argues
that 18 U.S.C. § 2252A(a)(1), as it existed at the time of his
offense, requires interstate transmission of child pornography
images. Second, Wright argues that there is no evidence prov-
ing he knew that the twenty-seven files charged in the indict-
ment were either on his computer or contained child
pornography. Third, Wright challenges the district court’s
denial of his motion to suppress statements. Fourth, Wright
claims he was denied a fair trial. Finally, he claims that his
sentence was improper.
I. 18 U.S.C. § 2252A(a)(1)’s “In Interstate Commerce”
Requirement
[1] As it existed at the time of Wright’s offense in 2003,
18 U.S.C. § 2252A(a)(1) punished any person who “know-
ingly mail[ed], or transport[ed] or ship[ped] in interstate or
foreign commerce by any means, including by computer, any
child pornography.” Whether section 2252A(a)(1)’s “in inter-
state . . . commerce” language requires the government to
prove that the images themselves traveled across state lines
appears to be a question of first impression in this circuit.
Wright’s principal argument is that the statute does so require.
However, both parties agree that the images in question never
traveled outside Arizona when Andrews downloaded them
from Wright’s computer. The government counters that the
statute does not require the images to cross state lines. Alter-
natively, it argues that while the images themselves may not
have traveled across state lines, their transmission would not
18178 UNITED STATES v. WRIGHT
have occurred except for the prior communications from the
defendant’s file server through the IRC network to the FBI.
As a result, because those communications traveled across
state lines, section 2252A(a)(1)’s jurisdictional element was
satisfied.
We review de novo Wright’s challenge to the sufficiency
of the evidence, United States v. Green, 592 F.3d 1057, 1065
(9th Cir. 2010), including questions of statutory interpretation,
United States v. Youssef, 547 F.3d 1090, 1093 (9th Cir. 2008).
[2] First, the government argues that section 2252A(a)(1)
does not require actual transportation of child pornography
across state lines. As with any statutory interpretation, we
start with “the plain meaning of the statute’s text.” United
States v. Nader, 542 F.3d 713, 717 (9th Cir. 2008). As noted,
18 U.S.C. § 2252A(a)(1) punishes any person who “know-
ingly mails, or transports or ships in interstate or foreign com-
merce by any means, including by computer, any child
pornography[.]” Our analysis turns on what Congress meant
by the phrase “transports . . . in interstate . . . commerce.”
Under the plain language of section 2252A(a)(1), the statute
requires that a person mail, transport, or ship child pornogra-
phy interstate. That is to say, a plain reading of the statute
seems to require at least some method of interstate travel.4
The government’s argument that section 2252A(a)(1) does
not require actual transportation across state lines relies on the
Third Circuit’s decision in United States v. MacEwan, 445
F.3d 237 (2006). MacEwan addressed section 2252A(a)(2)(B)
(2003), which punishes “[a]ny person who . . . knowingly
receives or distributes . . . any material that contains child por-
nography that has been mailed, or shipped or transported in
4
We do not consider here, nor does Wright challenge, the constitutional-
ity of section 2252A(a)(1) under Congress’ Commerce Clause authority.
Rather, we address only whether the government introduced sufficient evi-
dence at trial to satisfy the statute’s jurisdictional element.
UNITED STATES v. WRIGHT 18179
interstate or foreign commerce by any means, including by com-
puter.”5 There, the defendant stipulated to knowingly down-
loading child pornography from the Internet but argued that
there was no evidence indicating that the images traveled
interstate. MacEwan, 445 F.3d at 241. The Third Circuit
rejected reading the phrase “interstate commerce” synony-
mously with “interstate transmission.” Id. at 243. Accord-
ingly, it held that the statute did not explicitly require that the
child pornography images had to cross state lines, only that
“they must have been transported in interstate commerce by
any means, including by computer.” Id. at 244 (internal quota-
tion marks and ellipsis omitted). The court then re-framed the
issue in terms of whether Internet use, standing alone, satis-
fies the statute’s jurisdictional hook.6 See id. (asking “whether
downloading an image of child pornography from the Internet
[ ] involves the receipt of something transported in interstate
commerce”). According to the MacEwan court, it does—a
contention we address more fully below.
Two other circuits have disagreed with the Third Circuit’s
statutory reading—at least with respect to whether a materi-
ally identical statutory provision requires actual transportation
across state lines. In United States v. Schaefer, 501 F.3d 1197,
1204 (2007), the Tenth Circuit rejected MacEwan’s approach
as contrary to the plain terms of the statute. It faulted Mac-
Ewan for “recast[ing] the jurisdictional requirement of the
child-pornography statute into one that could be satisfied by
5
As discussed further below, Congress amended the statute in 2008,
adding the phrase “using any means or facility of interstate or foreign
commerce” following “mailed, or.” See Pub. L. No. 110-358, 122 Stat.
4001 (2008). We address the amendments in Section I.B., infra.
6
A “jurisdictional hook” is a “‘provision in a federal statute that requires
the government to establish specific facts justifying the exercise of federal
jurisdiction in connection with any individual application of the statute.’ ”
United States v. McCoy, 323 F.3d 1114, 1124 (9th Cir. 2003) (quoting
United States v. Rodia, 194 F.3d 465, 471 (3d Cir. 1999)), overruled on
other grounds by Gonzales v. Raich, 545 U.S. 1 (2005), as recognized in
United States v. McCalla, 545 F.3d 750, 756 (9th Cir. 2008).
18180 UNITED STATES v. WRIGHT
use of an ‘interstate facility,’ ” a term absent from the stat-
ute’s text, which instead uses the “in commerce language.” Id.
at 1205 (some internal quotation marks omitted). According
to the Schaefer court, Congress’ use of the “in commerce lan-
guage” reflected “its decision to limit federal jurisdiction and
require actual movement between states to satisfy the inter-
state nexus.” Id. at 1201-02 (citing Circuit City Stores, Inc. v.
Adams, 532 U.S. 105, 115-16 (2001), and explaining that
when it uses the phrase “in commerce,” Congress does not
intend to regulate to the full extent of its authority under the
Commerce Clause).
The First Circuit adopted a similar view in United States v.
Lewis, 554 F.3d 208 (2009). There, the court rejected the gov-
ernment’s position “that Congress intended to reach purely
intrastate transmission of child pornography that used a chan-
nel or instrumentality of interstate commerce.” Id. at 212. In
doing so, it looked to the jurisdictional hooks of similarly
worded criminal statutes and explained that courts have inter-
preted Congress’ decision to criminalize transportation “in
interstate or foreign commerce” of the relevant material “to
require actual crossing of a state or national border.” See id.
at 213-14 (citing cases); see also Smith v. Ayres, 845 F.2d
1360, 1366 (5th Cir. 1988) (holding that the “in interstate or
foreign commerce” language in the federal wire-fraud statute,
18 U.S.C. § 1343, “requires that the wire communication
cross state lines”); United States v. Colavito, 19 F.3d 69,
71-72 (2d Cir. 1994) (explaining in the context of defendant’s
due process challenge to 18 U.S.C. § 2252(a)(4)(B) that the
statute “lists several means by which pornography may travel
between states, including the transmission of visual images
across telephone lines by way of computer modems”).
To be sure, “Congress uses different modifiers to the word
‘commerce’ in the design and enactment of its statutes.” Cir-
cuit City Stores, 532 U.S. at 115. Where Congress uses the
phrases “affecting commerce” or “involving commerce,” it
“ ‘signals an intent to exercise [its] commerce power to the
UNITED STATES v. WRIGHT 18181
full.’ ” Id. (quoting Allied-Bruce Terminix Cos. v. Dobson,
513 U.S. 265, 277 (1995)). However, the phrases “in com-
merce” or “engaged in commerce,” “are understood to have
a more limited reach.” Id.;7 United States v. Am. Bldg. Main-
tenance Indus., 422 U.S. 271, 279-81 (1975) (discussing the
limited scope of federal jurisdiction associated with the phrase
“engaged in commerce” or “in commerce” as opposed to “the
broad ‘affecting commerce’ jurisdictional language”); cf.
United States v. Alderman, 565 F.3d 641, 645, 647-48 (9th
7
Though the Supreme Court made these pronouncements in the context
of interpreting a provision of the Federal Arbitration Act, it cautioned
against “[a] variable standard for interpreting common, jurisdictional
phrases.” Id. at 117. Of course, “statutory jurisdictional formulations [do
not] ‘necessarily have a uniform meaning whenever used by Congress,’ ”
id. at 118 (quoting United States v. Am. Bldg. Maintenance Indus., 422
U.S. 271, 277 (1975)), but must be construed “with reference to the statu-
tory context in which [they are] found and in a manner consistent with the
[statute’s] purpose,” id. But, contrary to the government’s assertions, in
view of section 2252A’s legislative history it becomes apparent that Con-
gress settled on the “in interstate commerce” language precisely because
of its limited reach. The precursors to section 2252A were 18 U.S.C.
§§ 2251, 2252, and 2253, enacted as part of the Protection of Children
Against Sexual Exploitation Act of 1977. See Pub. L. No. 95-225, 92 Stat.
7 (1978). Section 2251(a)(1) punished any person who forced a minor to
engage in “any sexually explicit conduct for the purpose of producing any
visual or print medium depicting such conduct, . . . if such person knows
or has reason to know that such visual or print medium will be transported
in interstate or foreign commerce.” Id. In the Senate Judiciary Committee
Report discussing the statute’s scope, the Committee stated its
intention that the government will have the affirmative burden of
showing that the person charged knew or should have known that
the materials described . . . will be transported in interstate or for-
eign commerce or mailed. While the Committee recognizes that
the jurisdictional element is often a difficult one to prove, it none-
theless believes that this requirement is necessary to preserve the
balance between the law enforcement responsibilities of federal
officials on one [h]and, and their state and local counterparts, on
the other.
S. Rep. No. 95-438, at 16 (1977), as reprinted in 1978 U.S.C.C.A.N. 40,
53. We are cognizant of preserving that same federal-state balance in our
interpretation of section 2252A(a)(1). See also Discussion I.B., infra.
18182 UNITED STATES v. WRIGHT
Cir. 2009) (holding that an identical jurisdictional hook in the
felon in possession of body armor statute ensures that the stat-
ute would not criminalize body armor produced intrastate, and
citing United States v. Polanco, 93 F.3d 555, 563 (9th Cir.
1996), for the proposition that the same jurisdictional element
in the felon in possession of a firearm statute “insures, on a
case-by-case basis, that a defendant’s actions implicate inter-
state commerce to a constitutionally adequate degree” (inter-
nal quotation marks omitted)).
As the First Circuit recognized of its own precedents, see
Lewis, 554 F.3d at 213, we too have previously interpreted
similarly-worded criminal statutes to require the actual cross-
ing of state lines. In United States v. Korab, we addressed 18
U.S.C. § 875(b), in which someone is guilty of federal extor-
tion if he “transmits in interstate commerce any communica-
tion containing any threat . . . to injure the person of another.”
893 F.2d 212, 213 (9th Cir. 1989) (emphasis omitted) (ellipsis
in original). We held that the statute required the government
to prove that the threats themselves, in that case telephone
calls, traveled across state lines. Id. at 214. There, all of the
threatening phone calls between the defendants and the victim
took place intrastate and the one telephone call that crossed
state lines did not contain threats. Id. at 213-214. Thus, while
there was evidence that defendants had made an interstate
telephone call to the victim, there was no evidence indicating
that the call contained threats. Id. at 214. “[F]ind[ing] no evi-
dence of threatening interstate communication,” we reversed
the conviction. Id. at 215.
Similarly, in United States v. Sutcliffe, we held that an iden-
tical jurisdictional hook in 18 U.S.C. § 875(c) was satisfied
where the “[d]efendant electronically sent threats and social
security numbers to internet servers located across state
lines.” 505 F.3d 944, 953 (9th Cir. 2007). In that case, the
government presented evidence that the defendant’s website,
which contained the threats, was uploaded to various servers
located in multiple states. Id. Notably, we relied on MacEwan
UNITED STATES v. WRIGHT 18183
in holding that “as both the means to engage in commerce and
the method by which transactions occur, the Internet is an
instrumentality and channel of interstate commerce.” Id. at
953 (quoting MacEwan, 445 F.3d at 245) (alteration and
internal quotation marks omitted). However, the defendant’s
use of the Internet did not provide a sufficient basis to satisfy
the jurisdictional hook. Rather, we went on to note that the
defendant’s website, containing the threats, crossed state lines
by way of Internet servers in three different states. Id.
The government’s reliance on Nader, 542 F.3d 713, is mis-
placed. Nader addressed “whether telephone calls within a
single state—intrastate rather than interstate calls—can vio-
late the Travel Act,” 18 U.S.C. § 1952(a), which prohibits the
use of “any facility in interstate or foreign commerce” with
intent to further certain unlawful activity. Id. at 716 (emphasis
added). In holding that intrastate telephone calls sufficed to
meet the jurisdictional hook, we explained that the phrase “in
interstate or foreign commerce” modified the noun “facility”
rather than the verb “uses.” Id. at 717-18. Therefore, it was
sufficient that the defendant’s illegal conduct involved a “fa-
cility in interstate commerce”; it was not necessary for that
facility itself to be “used” in interstate commerce. Id. at 718.
Because the telephone was a facility of interstate commerce,
defendant’s use of the telephone in committing the offense
satisfied the jurisdictional nexus. Id. at 719.
[3] By contrast, section 2252A(a)(1) does not include the
word “facility.” Thus, the phrase “in interstate or foreign
commerce” modifies the actus reus proscribed in the statute—
mailing, transporting or shipping child pornography. Unlike
the Travel Act, section 2252A(a)(1)’s jurisdictional element is
focused not on the means the defendant uses to mail, trans-
port, or ship child pornography, and its connection to inter-
state commerce. Rather, it requires that the defendant mail,
transport, or ship child pornography interstate.
18184 UNITED STATES v. WRIGHT
[4] Thus, our precedent indicates that criminal statutes
punishing the transmission of the relevant material “in inter-
state or foreign commerce” require the material itself to cross
state lines. Yet here, as the government concedes, none of the
images Wright transported to Andrews’s computer left the
state of Arizona. Indeed, none traveled outside the city of Tuc-
son.8
[5] To the extent the government also argues that use of
the Internet, standing alone, satisfies section 2252A(a)(1)’s
jurisdictional requirement, we reject that contention on these
facts. What distinguishes this case from those cases holding
that Internet use, standing alone, provides the sufficient juris-
dictional nexus, is that in each of those cases it was impossi-
8
That we hold section 2252A(a)(1) requires the defendant to transport
images across state lines should come as no surprise to the government,
which took the same position before the jury. In closing argument, the
prosecutor told the jury:
With regard to Count 2, if you’re getting hung up on the files
being transferred with that direct client-to-client connection, and
that that client-to-client connection is not crossing state lines,
don’t spend a lot of time on it. Find him not guilty. And then go
to the next charge, attempted distribution [the lesser included
charge].
Indeed, following the government’s request, the district court instructed
the jury that to find Wright guilty of Count 2, it first had to find “that the
defendant knowingly transported and shipped a visual depiction in inter-
state or foreign commerce.” The court defined the term “interstate or for-
eign commerce” as meaning “the movement of property from one state to
another state or from one state to another country.” Finally, the jury was
told that “[t]o transport or ship simply means to send or carry something
from one place to another. . . . The transportation must, however, involve
the movement of the materials in question either interstate, that is, across
state lines, or internationally, that is, from one country to another.” “[W]e
cannot affirm a criminal conviction on the basis of a theory not presented
to the jury.” Chiarella v. United States, 445 U.S. 222, 236 (1980). Not
only was the jury not told that the statute’s jurisdictional element could be
satisfied by the purely intrastate transmission of files, it was told the exact
opposite. We reject the government’s invitation to engage in revisionist
history.
UNITED STATES v. WRIGHT 18185
ble to determine whether the images in question actually
crossed state lines. See MacEwan, 445 F.3d at 241-42; Lewis,
554 F.3d at 210-11 (“[I]t is impossible to say with any cer-
tainty that a given packet [a message or file to be transmitted
that is broken into smaller pieces] will take the shortest route
in distance; the routers search for the shortest route in time.”).
In the face of that uncertainty, those courts held that proof of
Internet use was sufficient, reasoning that because it was just
as likely that use of the Internet either remained entirely intra-
state or involved multiple states, “the very interstate nature of
the Internet” favored finding that the images traveled in inter-
state commerce. MacEwan, 445 F.3d at 244; Lewis, 554 F.3d
at 215. Thus, both MacEwan and Lewis stand for the proposi-
tion that, where it is impossible to determine whether the
receipt of child pornography images crossed state lines, a
defendant’s use of the Internet may serve as a proxy for satis-
fying the interstate commerce requirement.
[6] However, the question that both MacEwan and Lewis
left unanswered is that presented by Wright’s case: whether
use of the Internet, standing alone, is sufficient to satisfy the
“interstate commerce” requirement where it is undisputed that
the images themselves did not cross state lines. In light of our
conclusion that the statute does so require, we hold that a
defendant’s mere connection to the Internet does not satisfy
the jurisdictional requirement where there is undisputed evi-
dence that the files in question never crossed state lines.
Perhaps recognizing this dilemma, the government offers
two additional arguments. First, following the Third Circuit’s
approach in MacEwan, the government re-frames the issue.
The proper question, according to the government, is
“whether setting up a file server to transmit child pornography
through the internet by use of IRC involved transporting
something in interstate commerce.” Second, the government
argues that in 2008 Congress amended the statute, clarifying
that it always considered the “in interstate commerce”
18186 UNITED STATES v. WRIGHT
requirement to reach images transmitted via the Internet. We
address each of these arguments in turn.
A. Interstate Predicate Act
The government argues that while the images themselves
may not have traveled across state lines, their transmission
would not have occurred except for the prior communications
from the defendant’s file server through the IRC network to
the FBI. It is undisputed that this initial connection occurred
across state lines. The government contends that it would be
nonsensical to protect “ ‘necessary intermediate steps’ in por-
nography trafficking—such as the defendant’s intrastate DCC
image transmissions that only occurred because of prior inter-
state communications.” Thus, according to the government,
an interstate predicate act satisfies section 2252A(a)(1)’s
jurisdictional element.
The government initially relies on our decision in United
States v. Mohrbacher, 182 F.3d 1041, 1047 (9th Cir. 1999),
which addressed “whether downloading images from a com-
puter bulletin board constitutes shipping or transporting
within the meaning of the terms as used in 18 U.S.C.
§ 2252(a)(1).” There, the defendant downloaded child por-
nography from a computer bulletin board in Denmark. Id. at
1043-44. After being convicted of transporting sexually
explicit material in violation of 18 U.S.C. § 2252(a)(1), the
defendant argued that he was convicted under the wrong sec-
tion of the statute. Id. at 1043. We agreed, explaining that
downloading is more akin to receiving materials than to trans-
porting or shipping them. Id. at 1050. The government points
to one isolated statement in Mohrbacher, where we said:
“Those who are responsible for providing the images to a cus-
tomer, by making them available on a computer bulletin board
or by sending them via electronic mail, are properly charged
with and convicted of shipping or transporting images under
§ 2252(a)(1).” Id. (emphasis omitted).
UNITED STATES v. WRIGHT 18187
Nothing in Mohrbacher is apposite to the jurisdictional
question presented here. Indeed, nowhere in Mohrbacher did
we even mention the jurisdictional “in interstate commerce”
requirement. Rather, the language on which the government
relies meant to distinguish conduct constituting shipping or
transporting images, within the meaning of the statute, from
receiving or possessing them under a different subsection.
Mohrbacher is irrelevant for purposes of this case.
Somewhat more on point is United States v. Smith, 795
F.2d 841, 846-47 (9th Cir. 1986). There, the defendant mailed
undeveloped, unprocessed film containing images of nude
teenage girls to an out-of-state developer. Id. at 844. He
argued that the unprocessed, undeveloped film did not consti-
tute “knowingly . . . mail[ing] any visual depiction . . . of a
minor engaging in sexually explicit conduct.” Id. at 845
(quoting 18 U.S.C. 2252(a)(1)(A) (emphasis added)).9 We
rejected Smith’s argument, holding “that the exclusion of
unprocessed film from the statute’s coverage would impede
the child pornography laws by protecting a necessary interme-
diate step in the sexual exploitation of children,” because the
fact that the film was undeveloped eliminated neither harm to
the victims nor the incentive to produce the images. Id. at
846-47 (emphasis added); see also United States v. Kelner,
534 F.2d 1020, 1024 (2d Cir. 1976) (“[W]e do not feel that
Congress is powerless to regulate matters in commerce when
the interstate features of the activity represent a relatively
small, or in a sense unimportant, portion of the overall crimi-
nal scheme. Our problem is not whether the nexus of the
activity is ‘local’ or ‘interstate’; rather, . . . so long as the
crime involves a necessary interstate element, the statute must
be treated as valid.” (internal citations omitted)).
We reject the government’s view that Wright’s entirely
intrastate acts satisfy the statute’s interstate commerce
9
The statute at issue in Smith had the same jurisdictional hook as section
2252A(a)(1), though there was no jurisdictional issue in that case.
18188 UNITED STATES v. WRIGHT
requirement solely because of prior interstate activity. First, to
the extent that Smith can be read to suggest that Wright’s con-
nection to the IRC network provides an adequate basis for
federal jurisdiction, this would ignore the text of section
2252A(a)(1). The statute requires that the defendant “trans-
port . . . in interstate commerce . . . any child pornography.”
The transportation of images is the focus, rather than the con-
nection to a network in interstate commerce that contains
child pornography. It was through Wright’s connection to the
interstate network that he allegedly advertised his willingness
to exchange child pornography, though he did not transport
any images through those channels.
To accept the government’s argument would be to sustain
Wright’s Count 2 conviction based on conduct of which
Wright was acquitted in Count 1. Count 1 alleged that in vio-
lation of 18 U.S.C. §§ 2251(c)(1)(A), (c)(2)(A), (d), Wright
did knowingly make, print and publish a notice and
advertisement seeking and offering to receive,
exchange, display, distribute and reproduce visual
depictions involving the use of minors engaging in
sexually explicit conduct, knowing or having reason
to know that such notice and advertisement will be
transported in interstate or foreign commerce by
means of computer.
Thus, section 2251(c) punishes a person who advertises the
exchange of child pornography if “such person knows or has
reason to know that such . . . advertisement will be trans-
ported in interstate . . . commerce.” 18 U.S.C. § 2251(c)(2)(A)
(2003) (emphasis added). Section 2252A(a)(1), on the other
hand, requires that the defendant know he is transporting the
actual images across state lines. See also Korab, 893 F.2d at
214-15 (rejecting the government’s argument that conduct in
connection with the crime of which the defendant was acquit-
ted could be used to satisfy jurisdiction). Therefore, holding
that section 2252A(a)(1) can be satisfied by predicate Internet
UNITED STATES v. WRIGHT 18189
use, e.g. advertising, would conflate it with section 2251(c),
of which Wright was acquitted.
Second, sustaining Wright’s conviction based on interstate
conduct outside the actual scope of section 2252A(a)(1)
would be contrary to Korab and Sutcliffe, where we held that
the act being criminalized in the statute at issue must itself
travel across state lines. Indeed, Korab rejected a nearly iden-
tical argument to that now advanced by the government. In
Korab, the government argued that a January 11 interstate
telephone call placed by the defendants to the victim satisfied
the interstate communication requirement. 893 F.2d at 214.
The call concerned logistical details pertaining to the defen-
dants’ extortionate scheme, including defendants’ specific
instructions to the victim on making the payment. Id. We held
such conduct insufficient to maintain a conviction; the inter-
state call was not an essential element of the crime since it did
not contain any threats. Id. Thus, Korab rejected holding that
a defendant’s interstate predicate act, though perhaps neces-
sary to completing the offense, provides a sufficient basis for
jurisdiction where that act was not an essential element of the
crime of conviction. See also id. (holding that interstate com-
munications involving threatening phone calls made after the
charge set forth in the indictment were not part of the crime
of conviction, and therefore could not form the basis for juris-
diction).
The government provides a third reason why we should
consider Wright’s prior interstate activity as a basis for juris-
diction. It argues to hold otherwise would ignore that the stat-
ute includes the transportation of child pornography “by
computer.” We disagree.
Congress added the phrase “by any means including by
computer” following “interstate or foreign commerce” in
1988, to section 2252A’s predecessors, 18 U.S.C.
§§ 2251(c)(2) and 2252(a). Pub. L. No. 100-690, § 7511, 102
Stat. 4181 (1988). To be sure, adding the phrase “including by
18190 UNITED STATES v. WRIGHT
computer” signals Congress’ intent to call particular attention
to computers as a “means” of interstate commerce—that is, a
means by which child pornography may be transported inter-
state. See Webster’s Third New International Dictionary 1143
(2002) (listing among the uses of the word “include” to “call
more attention to the single item or smaller class by stressing
the fact of its existence or the fact of its not having been over-
looked”). But that Congress listed computers as one particular
means of interstate transport does not permit treating com-
puter transport somehow differently from all other means of
interstate travel. See Lewis, 554 F.3d at 214 (“The plain lan-
guage of the statute indicates that we are to treat shipment or
transmission by computer the same way we would shipment
or transmission by any other means.”); Schaefer, 501 F.3d at
1202 (“The phrase ‘including by computer’ specifies a
method of interstate movement; the government must still
establish that any computer-related movement crossed state
lines.”). Whether the defendant transported child pornography
by mail, by sea, or by computer, the government must still
prove it crossed state lines.
[7] Accordingly, we hold that an interstate predicate act—
here, Wright’s connection to the IRC network—does not pro-
vide a sufficient basis for federal jurisdiction under section
2252A(a)(1).
B. 2008 Amendments
Next, the government argues that the Effective Child Por-
nography Prosecution Act of 2007 (the 2007 Act), enacted
October 8, 2008, see Pub. L. No. 110-358, 122 Stat. 4001,
clarified Congress’ intent that section 2252A(a)(1)’s jurisdic-
tional hook was always meant to encompass the transmission
of child pornography over the Internet, regardless of whether
the files crossed state lines. The parties disagree as to whether
the 2007 Act “clarified” versus “significantly expanded” sec-
tion 2252A(a)(1)’s reach. See Beverly Cmty. Hosp. Ass’n v.
Belshe, 132 F.3d 1259, 1265 (9th Cir. 1997) (addressing
UNITED STATES v. WRIGHT 18191
whether a subsequent enactment applied to a pending case by
determining whether the statute clarified or “substantial[ly]
change[d]” the law). We therefore discuss the relevant legisla-
tive history in some detail.
In 1978, Congress enacted the Protection of Children
Against Sexual Exploitation Act of 1977 (the 1977 Act),
adding sections 2251, 2252, and 2253 to Title 18 of the
United States Code. Pub. L. No. 95-225, 92 Stat. 7 (1978). In
passing the 1977 Act, Congress was concerned with the con-
nection between child pornography and child prostitution,
finding that children being used both as prostitutes and as the
subjects of pornographic materials had become a nationwide,
multimillion dollar industry that harmed children and society
as a whole. S. Rep. No. 95-438, at 5-8, reprinted in 1978
U.S.C.C.A.N. 40, 42-45. As proposed, section 2252 stated:
Any individual who knowingly transports, ships, or
mails through or in such a manner as to affect inter-
state or foreign commerce any photograph or film
depicting a child engaging in a prohibited sexual act
or in the simulation of such an act, or any individual
who receives for the purpose of selling or sells any
such photograph or film which has been transported,
shipped, or mailed through or in such a manner as to
affect interstate or foreign commerce shall be fined
not more than $25,000 or less than $5,000 or impris-
oned not more than fifteen years or less than two
years or both.
Id. at 60 (emphases added). Section 2251, which prohibited
the actual use of minors to engage in sexually explicit con-
duct, also contained the “affect commerce” language. See id.
In response to the proposed bill, Assistant Attorney General
Patricia M. Wald, writing on behalf of the Department of Jus-
tice, recommended that the words “affect interstate commerce
or foreign commerce” be deleted. Id. at 61. While the Justice
Department recognized that Congress could constitutionally
18192 UNITED STATES v. WRIGHT
proscribe such activity under its Commerce Clause power, it
was concerned that the proposed language would cover purely
intrastate distribution, based
on the theory that commerce is ‘affected’ in that the
processing of the film or photographs utilize materi-
als that moved in interstate commerce. In our opin-
ion, the investigation or prosecution of purely local
acts of child abuse should be left to local authorities
with federal involvement confined to those instances
in which the mails or facilities of interstate com-
merce are actually used or intended to be used for
distribution of the film or photographs in question.
Id. (internal citations omitted). In response, Congress replaced
the more broadly reaching phrase “affect interstate or foreign
commerce,” with the more limited “in interstate or foreign
commerce.” In doing so, Congress recognized that the juris-
dictional element was an important component of preserving
the balance between federal and state law enforcement
responsibilities. See id. at 53-54; see also n.6 supra.
In 1996, Congress enacted the Child Pornography Preven-
tion Act (the 1996 Act), adding section 2252A to the statutory
framework. Section 2252A(a)(1), the provision under which
Wright was convicted that punishes the transportation of child
pornography, included the same jurisdictional “in interstate or
foreign commerce” element as the earlier enacted section
2252(a)(1). Compare Pub. L. No. 104-208, 110 Stat. 3009,
3009-28 (1996), with Pub. L. No. 95-225, 92 Stat. 7 (1978).
While the 1996 Act left unchanged the jurisdictional hook
from section 2252(a)(1), two years after passage of the 1996
Act, the 1998 Congress added a new jurisdictional basis to
section 2251, which prohibits the production of child pornog-
raphy. See Pub. L. No. 105-314, 112 Stat. 2974, 2977 (1998).
Before 1998, section 2251 punished any person involved in
the production of child pornography where such person knew
UNITED STATES v. WRIGHT 18193
or had reason to know that the pornography would be trans-
ported in interstate or foreign commerce, or if the pornogra-
phy was actually so transported. See 18 U.S.C. § 2251 (1996).
The 1998 Act expanded the jurisdictional reach of section
2251 to include situations in which the pornography “was
produced using materials that have been mailed, shipped, or
transported in interstate or foreign commerce.” 18 U.S.C.
§ 2251 (1998). In so amending section 2251, Congress
brought the child pornography production statute in line with
analogous possession statutes, which already prohibited the
possession of child pornography produced using such inter-
state materials. See 18 U.S.C. §§ 2252(a)(4)(B),
2252A(a)(4)(B), 2252A(a)(5)(B). Congress recognized that,
as previously enacted, the production statute did not account
for those cases where the visual depictions had not actually
crossed state lines, or where there was no proof of the produc-
er’s knowledge that they would be so transported, and reme-
died its concerns by expanding the statute’s reach. See H.R.
Rep. 105-557, at 26-27 (1998), reprinted in 1998
U.S.C.C.A.N. 678, 695.
Thus, the 1996 Act is significant in several respects. First,
in leaving unchanged the jurisdictional language of section
2252(a)(1), Congress again rejected the broader jurisdictional
reach encompassed by the “affecting commerce” language. In
doing so, Congress reinforced its earlier concerns with respect
to maintaining the balance between federal and state law
enforcement of transporting child pornography. Second, Con-
gress chose not to bring the jurisdictional reach of the trans-
portation offense in line with the possession offenses, as it did
in 1998 with the child pornography production statute. In
other words, Congress did not amend section 2252A(a)(1) to
prohibit transporting any child pornography “that was pro-
duced using materials that have been mailed, or shipped or
transported in interstate or foreign commerce.”
[8] In 2008, Congress passed the 2007 Act. Based in part
on a finding in the 2007 Act that “[t]he transmission of child
18194 UNITED STATES v. WRIGHT
pornography using the Internet constitutes transportation in
interstate commerce,” Pub. L. No. 110-358, § 102(7), Con-
gress amended the jurisdictional provisions in sections 2251,
2252, and 2252A in a section titled “Clarifying ban on child
pornography.” Pub. L. No. 110-358, § 103. Most relevant
here, in section 2252A(a)(1) Congress inserted the phrase
“using any means or facility of interstate or foreign commerce
or” after “ships,” and replaced “in interstate” with “in or
affecting interstate commerce.” 122 Stat. 4001, 4002-03.
Thus, following the 2007 Act, section 2252A(a)(1) punishes
“[a]ny person who knowingly mails, or transports or ships
using any means or facility of interstate or foreign commerce
or in or affecting interstate or foreign commerce by any
means, including by computer, any child pornography.”
The government argues that the 2007 Act confirms that
Congress always meant for section 2252A(a)(1)’s jurisdic-
tional element to be satisfied by any predicate use of the Inter-
net, and that we should so construe the statute as enacted in
1996. We disagree. First, in enacting section 2252A(a)(1) in
1996, Congress made no relevant change to the jurisdictional
hook inserted in the 1977 Act. The legislative history makes
clear that Congress settled on the “in interstate commerce”
language because of its limited scope and squarely rejected an
earlier proposed bill that would have reached conduct “affect-
ing interstate commerce.” By contrast, in 2007 Congress
chose to regulate to the outer limits of its Commerce Clause
authority by inserting the “affecting interstate commerce” lan-
guage. See 153 Cong. Rec. H13591-92 (daily ed. Nov. 13,
2007) (statement of Rep. Conyers) (stating Congress’ intent
“that the prohibitions against child pornography reach the full
extent of its constitutional authority”); id. at H13592 (state-
ment of Rep. Goodlatte) (“The proposed legislative fix . . .
would expand the jurisdiction to prosecute these crimes when
the Internet is used. This is the broadest assertion of interstate
commerce power that the Congress can make consistent with
the Constitution.”); see also Circuit City Stores, 532 U.S. at
115. In light of Congress’ earlier efforts to afford the statute
UNITED STATES v. WRIGHT 18195
a more limited jurisdictional reach, we consider the 2007 Act
to have effected a substantial change in section 2252A(a)(1),
rather than a clarification. See Beverly, 132 F.3d at 1265.
Though Congress labeled the 2007 Act a mere clarification,
to so construe it that way would ignore both as a matter of
law, see Circuit City Stores, 532 U.S. at 115, and as a matter
of fact, Congress’ deliberate use of jurisdictional modifiers,
see Beverly, 132 F.3d at 1266 n.6 (Congress may formally
declare that an act clarifies the law so long as doing so would
not run contrary to the statute’s actual text).
Second, while Congress chose to reach some wholly intra-
state conduct with respect to distribution and possession of
child pornography, it made no similar decision with respect to
transportation. Indeed, as stated above, it explicitly rejected
language that would have reached such conduct.
[9] Finally, other courts have recognized that despite the
2007 Act, they are bound by the statute as written at the time
of the offense. See Lewis, 554 F.3d at 216 (interpreting the
pre-amendment version of section 2252A and characterizing
the 2007 Act as “expand[ing] the jurisdictional coverage”);
United States v. Swenson, 335 F. App’x 751, 753 (10th Cir.
2009) (applying Schaefer and stating that “the government
concedes, as it must, that this case is governed by the pre-
amendment statute”).
[10] In sum, we hold that at the time of Wright’s offense,
section 2252A(a)(1) required the government to prove that the
child pornography images actually crossed state lines. Since
it is undisputed that none of the images that form the basis of
Count 2 crossed state lines, there is insufficient evidence that
Wright “transport[ed] . . . in interstate . . . commerce by any
means, including by computer, any child pornography.”
Accordingly, we reverse his Count 2 conviction.
II. Wright’s Knowledge
Next, Wright challenges the sufficiency of the evidence as
to both Counts 2 and 3 on the basis that he did not know that
18196 UNITED STATES v. WRIGHT
the specific files charged in each count were on his computer
and contained child pornography. The government counters
that Wright admitted such guilty knowledge to Agent
Andrews and Detective Englander and his convictions should
be sustained by virtue of this confession along with sufficient
corroborating evidence.
[11] Where the government relies on a defendant’s confes-
sion to meet its burden of proof, it must introduce two types
of corroborating evidence: (1) “sufficient evidence to estab-
lish that the criminal conduct at the core of the offense has
occurred”; and (2) “independent evidence tending to establish
the trustworthiness of the admissions.” United States v.
Lopez-Alvarez, 970 F.2d 583, 592 (9th Cir. 1992). Wright
principally challenges this second requirement, arguing that
his statements should never have been introduced because
they were not voluntary. Therefore, since Wright’s knowledge
with respect to Counts 2 and 3 turns on whether his admis-
sions were properly admitted, we must examine whether the
district court erred in denying Wright’s motion to suppress his
statements.
The district court held a suppression hearing, at which
Agent Andrews, Detective Englander, and Wright all testified.
A number of factual disputes were revealed by their testi-
mony. For example, Agent Andrews testified that when the
FBI first entered Wright’s apartment, they placed both Wright
and his roommate Dittfurth in handcuffs in order to conduct
a sweep of the premises. However, at the conclusion of the
initial sweep, Andrews testified that Wright’s handcuffs were
removed. Andrews stated that she then asked Wright if he
would like to go downstairs from the apartment and answer
some questions in Englander’s car parked out front. Wright
agreed to answer their questions; he testified that he felt he
had no choice. According to Andrews, Wright was no longer
in handcuffs when he accompanied the officers to Englander’s
car. Detective Englander also testified that he did not recall
Wright being handcuffed on the way to the car and stated that
UNITED STATES v. WRIGHT 18197
Wright was not handcuffed during questioning. However,
Wright testified that he was initially handcuffed and thrown
on the floor of his apartment for approximately fifteen min-
utes, and that he remained in handcuffs while being taken to
Detective Englander’s car and for the majority of questioning
inside the car.
There was also a dispute as to whether Wright was read his
Miranda rights before questioning. Agent Andrews and
Detective Englander both testified that Englander read Wright
his Miranda rights and that Wright waived those rights. How-
ever, Wright testified that he was never read his rights.
Next, Wright testified that he asked on three separate occa-
sions to speak to an attorney. Specifically, Wright stated that
he asked the officers if he could get his cell phone in order to
call an attorney friend. But according to Wright, he was told
that he could not return to the apartment to retrieve his phone
and that there was no need for him to speak with a lawyer.
Both Andrews and Englander testified that Wright never
requested to speak to a lawyer. Andrews, Englander, and
Wright all seem to agree that the questioning lasted between
forty-five minutes and an hour.
Neither Andrews nor Englander tape-recorded the conver-
sation they had with Wright. Wright argued in the district
court that their failure to do so violated Wright’s due process
rights.
The district court denied Wright’s motion to suppress in a
two-line Order:
After hearing evidence and reviewing the memo-
randum filed by counsel, the Court will DENY the
Motion to Suppress Statements (#55).
While the Court believes it would have been better
if all these statements were taped, the law does not
require it, the Court also cannot.
18198 UNITED STATES v. WRIGHT
[12] The absence of any factual findings by the district
court considerably frustrates our appellate review. Relying on
United States v. Craighead, 539 F.3d 1073 (9th Cir. 2008),
Wright argues that he was in custody at the time of police
questioning and was therefore entitled to Miranda warnings,
which he did not receive. While determining whether a defen-
dant is constitutionally entitled to Miranda warnings is sub-
ject to de novo review, it is nevertheless a fact-intensive
inquiry. Id. at 1082, 1084; see also United States v. Kim, 292
F.3d 969, 973 (9th Cir. 2002) (whether a person is “in custo-
dy” for Miranda purposes is a mixed question of law and fact;
factual findings are reviewed for clear error). “[A] suspect is
. . . considered ‘in custody’ for purposes of Miranda if the
suspect has been ‘deprived of his freedom of action in any
significant way.’ ” Craighead, 539 F.3d at 1082 (quoting
Miranda v. Arizona, 384 U.S. 436, 444 (1966)). Yet there are
several threshold factual disputes important to determining
whether Wright would have felt free to leave. For example,
Wright testified that he remained in handcuffs the entire time
he was being questioned, a period that lasted between forty-
five minutes and an hour. See United States v. Booth, 669
F.2d 1231, 1236 (9th Cir. 1981) (holding that while
“[h]andcuffing a suspect does not necessarily dictate a finding
of custody[,]” it is a factor the district court should consider).
He also testified that he requested on three different occasions
to call a friend who was an attorney, but was told that he
could not return to his apartment where his phone was
located. This is in stark contrast to the officers’ testimony, in
which both Andrews and Englander stated that Wright never
mentioned wanting to speak to a lawyer, but that had he so
requested, they would have immediately stopped the inter-
view. See Craighead, 539 F.3d at 1084 (listing among the fac-
tors to consider whether an in-home interrogation was
custodial “whether the suspect was at any point restrained”
and “whether the suspect was informed that he was free to
leave or terminate the interview”). It is also significant that
whether or not Wright was told he was free to leave, he could
not simply return to his home, since it was being searched.
UNITED STATES v. WRIGHT 18199
See id. at 1088 (concluding that despite being told he was free
to leave, the defendant would not have reasonably believed he
was free to go because agents were searching his home);
United States v. Lee, 699 F.2d 466, 467-68 (9th Cir. 1982)
(per curiam) (holding defendant would not have felt free to
leave where he “was questioned in a closed FBI car with two
officers for well over an hour while police investigators were
in and around his house”). The district court must resolve
these factual disputes in order for this court to address
whether Wright was in custody for purposes of Miranda, and
thus should have received adequate Miranda warnings.
Nor can we resolve the issue by simply assuming that
Wright was entitled to Miranda warnings, received them, and
subsequently effected a valid waiver. The district court made
no finding as to whether Wright invoked his right to counsel
on the three separate occasions he requested calling his friend.
At a minimum, Wright’s statements should have led the offi-
cers to clarify Wright’s intention. See United States v. de la
Jara, 973 F.2d 746, 750 (9th Cir. 1992). Instead, Wright testi-
fied that he was told not to worry, that he was not being
arrested, and that he could not return to his apartment to get
his phone.
The absence of factual findings also impedes our review of
Wright’s claims that his statements were not made voluntar-
ily. “In determining the voluntariness of a confession, we
‘examine[ ] whether a defendant’s will was overborne by the
circumstances surrounding the giving of a confession.’ ”
Doody v. Schiro, 596 F.3d 620, 638 (9th Cir. 2010) (en banc)
(quoting Dickerson v. United States, 530 U.S. 428, 434
(2000)). Voluntariness is determined by considering the total-
ity of the circumstances, including “close scrutiny of the
facts.” Id. Under Federal Rule of Criminal Procedure Rule
12(d), “[w]hen factual issues are involved in deciding a
motion, the court must state its essential findings on the
record.” We have held that compliance with that rule (for-
merly Rule 12(e)) is “particularly important in a case . . .
18200 UNITED STATES v. WRIGHT
where we examine all the surrounding circumstances.” United
States v. Castrillon, 716 F.2d 1279, 1282 (9th Cir. 1983)
(internal quotation marks omitted). As a result, “we require a
statement on the record of those factual findings upon which
the district court based its grant of the motion to suppress.” Id.
at 1283 (remanding the question of voluntariness in the
absence of adequate factual findings).
The government maintains that a remand is unnecessary in
this case because the district court’s factual findings are
implicit in its ruling. It argues that the suppression hearing
boiled down to a credibility contest, in which case the district
court “unmistakably found the defendant’s testimony unbe-
lievable, adequately finding the ‘essential’ facts required by
Rule 12(d).” However, the cases on which the government
relies are inapposite. For example, in United States v. Whit-
worth, 856 F.2d 1268, 1278 (9th Cir. 1988), we held that
while the district court did not specifically address the defen-
dant’s request for counsel, implicit in the district court’s rul-
ing was that the court believed the agent’s testimony that it
was the defendant who initiated a conversation with the offi-
cers following his initial request for counsel. However, in
Whitworth, the district court clearly articulated two grounds
for denying the defendant’s suppression motion and provided
factual findings upon which it based its ruling. Indeed, the
court credited the agents’ testimony in finding both that the
defendant received Miranda warnings and that his statements
were made voluntarily. Id. We held that those findings were
not clearly erroneous. Id.
Here, the district court made no factual findings and the
only theory identified in its order denying the suppression
motion is that the officers were not required to record their
conversation with Wright. But Wright raised a number of
grounds in his motion to suppress, which required important
factual disputes to be resolved. The district court gave no
indication that it believed all of Agent Andrews’s and Detec-
tive Englander’s testimony and found Wright’s testimony
UNITED STATES v. WRIGHT 18201
entirely incredible. Rather, the district court seems to have
avoided making any credibility determination, choosing
instead to deny Wright’s suppression motion on the basis that
the government was not required to record the interview.
In United States v. Prieto-Villa, 910 F.2d 601, 606 (9th Cir.
1990), we held that remand for factual findings is required
where it is impossible to determine the basis for the district
court’s denial of a motion to suppress. See also id. at 610
(holding that absent a revision to Rule 12(d), “district courts
must put their essential factual findings on the record”). We
recognized that earlier cases, which held that the appellate
court would “affirm in the absence of factual findings if any
reasonable view of the evidence would sustain the denial of
the motion,” had overlooked the requirements of Rule 12(d).
Id. at 607 (internal quotation marks omitted). Prieto-Villa also
recognized that factual findings are particularly important in
the context of suppression hearings. Id. at 609-10.
[13] Therefore, we reverse the denial of Wright’s motion
to suppress and remand with instructions to the district court
to make essential factual findings explaining the basis for its
decision.10
10
Wright argues that the district court should consider the failure to
record the interview in deciding the admissibility of Wright’s statements.
In United States v. Coades, 549 F.2d 1303, 1305 (9th Cir. 1977) (per
curiam), we declined to adopt a rule mandating the electronic recording of
post-arrest statements. Of course, the district court may support any disbe-
lief it has of any witness’ testimony by noting the lack of a recording. Cf.
United States v. Martinez, 514 F.2d 334, 341 (9th Cir. 1975) (explaining
that “in certain restricted circumstances” a witness’ story might be so
implausible that “disbelief of testimony can support the truth of what the
witness denies,” but “there must also be other objective evidence on the
record which buttresses the fact finder’s drawing of the opposite infer-
ence” (emphasis added) (some internal quotation marks omitted)); accord
United States v. Yunis, 859 F.2d 953, 961 (D.C. Cir. 1988) (“[While] there
is no constitutional requirement that confessions be recorded by any par-
ticular means, . . . the failure by the FBI to use equipment at its disposal
18202 UNITED STATES v. WRIGHT
III. Wright’s Fair Trial Claims
A. Exclusion of 404(b) Evidence
[14] Next, Wright argues that the district court erred in
precluding evidence that Wright’s roommate, Shawn Ditt-
furth, had motive, opportunity, knowledge, and the ability to
obtain, view, and possess child pornography. Wright wanted
to introduce evidence showing that Dittfurth had a sexual
attraction to minor boys and was proficient with computers.
Wright claims that the district court precluded this “prior act”
evidence under Federal Rule of Evidence 404(b) because Ditt-
furth did not testify. The government raises two arguments in
response. First, the government claims that Wright never actu-
ally offered any such evidence and therefore the district court
did not preclude it. Second, the government argues that,
assuming the district court did exclude the evidence, it was
proper to do so, though on alternative grounds.
On January 27, 2006, Wright filed a Notice of Intent To
Present Other Act Evidence under Rule 404(b). Wright sought
to introduce four different pieces of evidence with respect to
prior acts of his roommate, Dittfurth. First, Wright intended
to introduce records from Mount Saint Mary College in New-
burgh, New York, showing Dittfurth received a computer
competency waiver from Saint Mary’s, as well as an “A” in
Computer Literacy. Wright’s theory for admission was that
Dittfurth’s computer competency would show Dittfurth had
the knowledge necessary to commit the charges. He intended
to call a custodian of records from Saint Mary’s to testify.
Second, Wright intended to introduce, through Wright’s testi-
might support a larger inference that the agents’ testimony did not accu-
rately portray the circumstances surrounding Yunis’ confession.”). How-
ever, since the district court must consider the totality of the
circumstances, it may also consider that the FBI has adopted a policy of
not recording interviews.
UNITED STATES v. WRIGHT 18203
mony at trial, that Dittfurth lived with Wright during the rele-
vant time period and that Dittfurth was often alone in the
apartment, where he had access to Wright’s desktop com-
puter. According to Wright, such testimony would show that
Dittfurth had the opportunity to commit the alleged offenses.
Third, also through Wright’s testimony, Wright intended to
introduce evidence that after Wright’s apartment was
searched on February 13, 2003, Dittfurth encouraged Wright
to sign over to Dittfurth power of attorney to Wright’s prop-
erty and businesses, and suggested that Wright flee the coun-
try before charges were filed against him. Wright theorized
that this evidence would show Dittfurth had the motive,
intent, plan, and preparation to commit the offenses. Finally,
Wright would testify that Dittfurth visited the site gay.com,
where his online identity was “Presumed Innocent.” Wright
argued that this evidence would show Dittfurth’s identity and
knowledge and that Dittfurth’s “on-line identity is ironic in
light of this case.”
Argument on Wright’s motion took place nearly a year
later, on January 22, 2007. Wright’s counsel indicated that the
government agreed to allow Wright to testify that Dittfurth
lived with Wright during the relevant time period. However,
the government contested the other three pieces of evidence,
which defense counsel proceeded to address in her argument
to the district court. As to each piece of evidence Wright
sought to introduce, the district court asked defense counsel
how the evidence was relevant should Dittfurth not testify at
trial. See District Ct. Docket No. 374: Transcript of Motion
Hearing dated Jan. 22, 2007 at 14 (concerning Dittfurth’s
computer literacy); id. at 17 (power of attorney); id. at 19
(Presumed Innocent screen name). Likewise, the government
assumed that the only way in which any of the evidence could
be introduced was if Dittfurth testified. At the close of argu-
ment, the district court indicated that it agreed that evidence
about Dittfurth’s computer knowledge and the statements
Dittfurth allegedly made requesting Wright give Dittfurth
18204 UNITED STATES v. WRIGHT
power of attorney were both relevant; not so with respect to
the Presumed Innocent screen name.
The minute entry from the January 22 hearing contains the
following entry: “Further 404B on Shawn Dittfurth; if he tes-
tifies, the Court finds evidence regarding testing out of com-
puter class, and his statement to have defendant Wright turn
over power of attorney to property in Mexico relevant; his use
of on-line screen name of ‘presumed innocent’ is not rele-
vant.” Appellant’s Excerpts of Record (ER) at 35 (emphasis
added). In later hearings with the court, defense counsel also
discussed the possibility of calling Dittfurth’s co-worker,
Holly White, to testify to his credibility (since law enforce-
ment interviewed him when they searched Wright’s apart-
ment) and to establish Dittfurth’s interest in teenage boys.
White would testify that when she worked at a skate shop
with Dittfurth, he made passes at boys around the ages of 12-
15. Defense counsel also discussed calling Nick Shorb, a 12-
13 year old boy who worked with Dittfurth at the skate shop
who would testify that Dittfurth made passes at him and
showed him pornography. Both White and Shorb later
appeared on Wright’s list of witnesses for trial.
There was no further discussion of whether the 404(b) evi-
dence would be coming in until the first day of trial on Janu-
ary 17, 2008. During her opening statement, defense counsel
discussed Dittfurth at some length, including references to his
knowledge of computers from his days at Saint Mary’s Col-
lege, and that he encouraged Wright to go to Mexico follow-
ing execution of the search warrant. After the court recessed
the jury for the day, the government objected to defense coun-
sel referring to individuals who would be testifying about
Dittfurth, arguing that none of that evidence should come in
unless Dittfurth testified. The government pointed out that
neither it nor the defense would be calling Dittfurth to testify.
The district court initially expressed its skepticism as to
whether the evidence could be admitted absent Dittfurth testi-
UNITED STATES v. WRIGHT 18205
fying. However, the court never explicitly precluded such evi-
dence. Rather, the district court left it to defense counsel to
provide the court with a legal basis for introducing the evi-
dence. Indeed, the district court judge stated numerous times
that he was not sure if the evidence could come in without
Dittfurth’s testifying, but that it was up to defense counsel to
convince him otherwise. See ER at 52 (responding to the
prosecutor’s statement that the evidence was not relevant
without Dittfurth testifying, saying: “I haven’t crossed that
road yet, either, so I’m sure Ms. Williams is going to provide
some sort of legal basis to allow that to come in without Mr.
Dittfurth.”); id. (“I’m having trouble seeing that, I don’t see
how they’re relevant without [Dittfurth], but I’m sure Ms.
Williams will show me some book if it says they are.”); id.
at 53 (“I’ll still [sic] having trouble seeing how they come in
without having Mr. Dittfurth called as a witness in some fash-
ion. Not in some fashion, being called as a witness. I don’t
know see how I can cross that bridge, Ms. Williams, but we’ll
see.”). The court then recessed for the day.
The trial continued the following day. At the conclusion of
the day’s proceedings, after the court recessed the jury,
defense counsel “apologize[d] to the Court.” She told the
court that she went back and checked the minute entry from
the earlier January 22 hearing and realized that “[t]he Court
had permitted me to get into the St. Mary’s records as well as
the power of attorney and going to Mexico if Mr. Dittfurth
testified, and, as I explained yesterday, I was under the
impression until yesterday morning that Mr. Dittfurth was
going to testify.”11 Defense counsel also told the court that she
realized that she would also be precluded from calling Holly
White and requested that White be released from her sub-
poena. The district court then asked defense counsel to clarify
11
It appears that defense counsel was under the impression that the gov-
ernment was planning to call Dittfurth and didn’t learn that they were not
planning on doing so until the first day of trial.
18206 UNITED STATES v. WRIGHT
whether she intended to call White, to which she responded,
“Absolutely not, Judge.”
The issue lies in our review of the record. On one hand, it
seems as though the district court never actually precluded
404(b) evidence related to Dittfurth. Rather, the district court
expressed some skepticism as to whether the evidence could
come in, but left it to defense counsel to provide the court
with legal authority to do so. At the end of the first day of
trial, the parties informed the court that Dittfurth was not
being called to testify, and the court invited defense counsel
to provide a basis for introducing the evidence. However,
defense counsel never accepted the district court’s offer.
Instead, rather than realizing that the district court was open
to the possibility of allowing the evidence as long as it had
some legal basis to do so, counsel withdrew her motion.
Defense counsel therefore neglected to argue to the district
court that Dittfurth’s presence at trial was not a prerequisite
to introducing the evidence—the argument Wright advances
to us on appeal. Thus, the evidence was not introduced solely
because defense counsel failed to provide the court with a rea-
son for allowing it, not because the district court excluded it.
Alternatively, it may be said that the district court ruled that
the evidence was not admissible unless Dittfurth testified.
One interpretation of the record is that the district court told
defense counsel that it was not going to allow the evidence to
come in since Dittfurth was not testifying—unless defense
counsel could prove to the district court that such a ruling was
erroneous. The best support for this view is the district court’s
January 22 minute entry, which again provided: “Further
404B on Shawn Dittfurth; if he testifies, the Court finds evi-
dence regarding testing out of computer class, and his state-
ment to have defendant Wright turn over power of attorney to
property in Mexico relevant.” Thus, the district court condi-
tioned the evidence’s admissibility on Dittfurth testifying.
Although it had been decided by that point that Dittfurth was
not going to testify, defense counsel indicated in her opening
UNITED STATES v. WRIGHT 18207
statement that she intended to introduce the evidence. The
government then objected to its introduction at the conclusion
of the first day of trial, and the district court agreed that
defense counsel would not be permitted to introduce the evi-
dence absent Dittfurth testifying.
The issue is confounded by the fact that some of our prior
cases suggest that a lawyer’s failure to state the grounds for
the admissibility of evidence, and the district court’s subse-
quent failure to rule based on those grounds, precludes us
from considering the issue. See United States v. Tafollo-
Cardenas, 897 F.2d 976, 980 (9th Cir. 1990) (declining to
consider whether defendant’s statements were admissible
under the general hearsay exception where the prosecutor did
not raise the exception until introducing its amended jury
instructions and the district court made no finding on its appli-
cability). Other case law suggests that “[a]bsent a . . . defini-
tive ruling by the district court that the evidence is admissible,
a party does not preserve the issue of admissibility for appeal
absent a contemporaneous objection,” such that this court’s
review is only “to prevent a manifest injustice.” United States
v. Archdale, 229 F.3d 861, 864-65 (9th Cir. 2000).
We need not resolve whether the district court actually pre-
cluded the 404(b) evidence. Under any reading of the record,
Wright never argued that the testimony should come in
regardless of whether Dittfurth testified—the issue now pre-
sented on appeal. Thus, our review is for plain error. See
United States v. Chang, 207 F.3d 1169, 1176 (9th Cir. 2000)
(reviewing for plain error where the “theory of admissibility
was not apparent from the context of [the defendant’s] testi-
mony”); United States v. Sims, 617 F.2d 1371, 1377 (9th Cir.
1980) (“The presentation of additional evidentiary theories on
appeal is inconsistent ‘with the salutary purpose of the timeli-
ness requirement to allow the trial judge to make an informed
ruling based on the issues as framed by the parties before the
evidence is . . . excluded.’ ” (ellipsis in original) (quoting
18208 UNITED STATES v. WRIGHT
United States v. Lara-Hernandez, 588 F.2d 272, 274 (9th Cir.
1978))).
The exclusion of the Dittfurth-related 404(b) evidence in
this case did not amount to plain error. For there to be plain
error, Wright must demonstrate that: “(1) there is an error; (2)
the error is clear or obvious, rather than subject to reasonable
dispute; (3) the error affected the appellant’s substantial
rights, which in the ordinary case means it affected the out-
come of the district court proceedings; and (4) the error seri-
ously affects the fairness, integrity or public reputation of
judicial proceedings.” United States v. Marcus, 130 S. Ct.
2159, 2164 (2010) (internal quotation marks and brackets
omitted).
[15] First, assuming without deciding that the district court
actually precluded the introduction of the 404(b) evidence
because Dittfurth did not testify, it was error to do so. The
government concedes that Rule 404(b) applies to non-
witnesses, under our decision in United States v. McCourt,
925 F.2d 1229 (9th Cir. 1991). See also United States v. Cruz-
Garcia, 344 F.3d 951, 955 n.3 (9th Cir. 2003). However, it
argues that the district court should be affirmed on other
grounds—namely that the proffered evidence was forbidden
propensity evidence. The only case the government cites for
its propensity argument is a Nebraska Court of Appeals case
agreeing with McCourt that 404(b) permits introduction by
the accused of a third-party’s prior acts, but holding that there
the evidence was properly excluded based on propensity
grounds. See State v. Gardner, 498 N.W.2d 605, 609-10
(1993). In Gardner, the defendant was convicted of sexual
assault of a child and sought to introduce evidence that since
the victim’s father had molested a child once before, he was
the guilty party. Id. at 610. This is classic propensity evi-
dence.
By contrast, Wright was not seeking to introduce evidence
that Dittfurth had committed prior acts involving child por-
UNITED STATES v. WRIGHT 18209
nography images. Rather, Wright wanted to establish that
Dittfurth had the kind of computer knowledge necessary to
obtain child pornography (through introduction of the Saint
Mary’s college records), that Dittfurth knew that Wright’s
computer contained illegal images—an element of Counts 2
and 3—(through testimony that following the FBI’s search
Dittfurth encouraged Wright to sign over power of attorney to
Dittfurth and told Wright to flee the country), and that Ditt-
furth had intent to commit the crimes alleged (through testi-
mony that he was sexually interested in underage boys). Cf.
United States v. Kapordelis, 569 F.3d 1291, 1313 (11th Cir.
2009) (“Evidence that Defendant traveled abroad in order to
engage in sexual trysts with underage boys in Prague was,
thus, admissible under 404(b) as ‘proof of . . . knowledge,
identity, or absence of mistake or accident’ and intent with
regard to his travel with his cousin and his former patient dur-
ing which sexually explicit images of the boys were created
and with regard to his collection of pornographic images of
children.” (ellipsis in original)); United States v. Sebolt, 460
F.3d 910, 917 (7th Cir. 2006) (“Prior instances of sexual mis-
conduct with a child victim may establish a defendant’s sex-
ual interest in children and thereby serve as evidence of the
defendant’s motive to commit a charged offense involving the
sexual exploitation of children.”).
Moreover, “the standard of admissibility when a criminal
defendant offers similar acts evidence as a shield need not be
as restrictive as when a prosecutor uses such evidence as a
sword.” United States v. Aboumoussallem, 726 F.2d 906, 911
(2d Cir. 1984) (discussed with approval in McCourt, 925 F.2d
at 1234, explaining that “Aboumoussallem is exemplary of a
number of cases in which courts have admitted similar acts
evidence for defense purposes”).12
12
The government also argues that the Dittfurth-related testimony is
subject to a more stringent standard for third-party culpability evidence
under Guam v. Ignacio, 10 F.3d 608 (9th Cir. 1993). In Guam, we held
that “[e]vidence of third-party culpability is not admissible if it simply
18210 UNITED STATES v. WRIGHT
However, though we find error, we are not convinced that
any such error prejudiced Wright under the plain error stan-
dard. Wright’s principal defense was that Dittfurth was
responsible for possession of the child pornography images.
Practically all of the defense’s case was directed at explaining
ways in which Dittfurth could have been the responsible
party. For example, the defense argued that Wright’s desktop
computer and the laptop computer Wright purchased for Ditt-
furth to use were networked; that there was an icon on
Wright’s desktop for a program called “pcAnywhere,” which
allows one computer to access another; that one of the files
charged in Count 3 was modified while Wright was at a busi-
ness trade show (inferring it had to be Dittfurth who viewed
the image); that Dittfurth was often alone in the apartment;
and that the seven CDs containing child pornography found
in Wright’s briefcase were placed there by Dittfurth. Wright’s
404(b) evidence would have shown that Dittfurth was com-
puter proficient, had a history of making passes at adolescent
boys, and told Wright to flee to Mexico following the search
(which Wright argued indicated that Dittfurth knew there was
contraband on the computer).
[16] Thus, even without the 404(b) evidence, the defense
presented the jury with a significant amount of evidence that
affords a possible ground of suspicion against such person; rather, it must
be coupled with substantial evidence tending to directly connect that per-
son with the actual commission of the offense.” Id. at 615 (internal quota-
tion marks and emphasis omitted). Guam relies on Perry v. Rushen, 713
F.2d 1447 (9th Cir. 1983), a habeas case addressing a defendant’s consti-
tutional claim that he was deprived of the right to a fair trial. Neither
Guam nor Perry involve the exclusion of 404(b) evidence. While Wright
makes a brief mention of his “constitutional right to present a complete
defense and receive a fair trial,” his argument clearly revolves around the
district court’s improper interpretation of Fed. R. Evid. 404(b). This court
recently explained that, unlike a defendant’s constitutional claims that he
was deprived of the right to present a defense, “the substantive standard
is more forgiving where the evidence was erroneously excluded on purely
evidentiary principles.” United States v. Stever, 603 F.3d 747, 755 n.3, 756
(9th Cir. 2010). Thus, Guam does not control here.
UNITED STATES v. WRIGHT 18211
Dittfurth was the culpable party. Indeed, it seems like the jury
shifted at least some of the blame to Dittfurth because it
acquitted Wright of the possession charges with respect to the
CDs. Of the additional testimony Wright did not present, only
the evidence concerning Dittfurth’s penchant for adolescent
boys had even the potential to affect the jury’s verdict; the
jury knew that Wright ran several online business, and there-
fore had significant computer knowledge himself, and that
Dittfurth told Wright to flee to Mexico is weak evidence of
Dittfurth’s knowledge of contraband. Considering all the evi-
dence the jury knew about Wright and Dittfurth, excluding
this additional testimony did not amount to plain error. See
United States v. Vallejo, 237 F.3d 1008, 1023-24 (9th Cir.
2001) (finding exclusion of third-party culpability evidence
not harmless where defendant was not permitted to provide an
answer to the question of who committed the crime, if not the
defendant); United States v. Crosby, 75 F.3d 1343, 1347 (9th
Cir. 1996) (same). Wright put on the “Dittfurth did it”
defense. He presented the jury with myriad ways in which
Dittfurth could have been responsible for the offense. Any
additional evidence concerning Dittfurth would have been
merely cumulative.
B. Prosecutorial Misconduct
Wright calls out a number of comments made by the prose-
cutor, either during cross-examination or in his closing argu-
ment, that he argues constitute prosecutorial misconduct and
warrant reversal. To obtain a reversal based on prosecutorial
misconduct, Wright must establish both misconduct and prej-
udice. See United States v. Sarkisian, 197 F.3d 966, 988 (9th
Cir. 1999). “Where defense counsel objects at trial to acts of
alleged prosecutorial misconduct, we review for harmless
error on defendant’s appeal; absent such an objection, we
review under the more deferential plain error standard.”
United States v. Hinton, 31 F.3d 817, 824 (9th Cir. 1994).13
13
While Wright did not object to all of the allegedly improper state-
ments in this case, he objected to those comments we find most troubling.
Our prejudice inquiry is therefore guided by harmless error review.
18212 UNITED STATES v. WRIGHT
First, Wright argues that the prosecutor improperly inserted
his personal disbelief of the defense and submitted his own
testimony to the jury. Wright contends that the prosecutor’s
statements constitute impermissible vouching.
[17] “The rule that a prosecutor may not express his per-
sonal opinion of the defendant’s guilt or his belief in the cred-
ibility of witnesses is firmly established.” United States v.
McKoy, 771 F.2d 1207, 1210-11 (9th Cir. 1985); see also
United States v. Kerr, 981 F.2d 1050, 1053 (9th Cir. 1992)
(“A prosecutor has no business telling the jury his individual
impressions of the evidence.”). “Improper vouching occurs
when the prosecutor places the prestige of the government
behind the witness by providing personal assurances of the
witness’s veracity.” Id. (brackets and internal quotation marks
omitted). Improper vouching also occurs where the prosecutor
suggests that the testimony of government witnesses is sup-
ported by information outside that presented to the jury.
United States v. Younger, 398 F.3d 1179, 1190 (9th Cir.
2005). “We also have identified improper vouching and
related misconduct in a broader range of circumstances. A
prosecutor may not, for instance, express an opinion of the
defendant’s guilt, denigrate the defense as a sham, implicitly
vouch for a witness’s credibility, or vouch for his or her own
credibility.” United States v. Hermanek, 289 F.3d 1076, 1098
(9th Cir. 2002) (internal citations omitted). However, “vouch-
ing typically involves the prosecution bolstering the testimony
of its own witness.” United States v. Nobari, 574 F.3d 1065,
1078 (9th Cir. 2009).
Of the statements Wright identifies, we find the most trou-
bling to be the “trifecta” comment delivered during the prose-
cutor’s closing argument:
Now, I’ve been handling these cases for a number of
years and I’ve seen where defense — where the
defense of it was my roommate has been advanced,
and I’ve seen the defense advanced that it was some
UNITED STATES v. WRIGHT 18213
sort of hacker or trojan or virus, something along
those lines, and then I’ve also seen, well, somebody
did something inappropriately, the interview, this,
that, something along those lines.
But never have I seen the trifecta, all three in this
same place. This is very — this is unbelievably
remarkable that you guys got to witness this. So
we’re betting on Shawn Dittfurth to win, the FBI to
place, and I guess some computer hacker, trojan,
virus mystery man to show, but the problem is none
of those things ever showed.
ER at 594. The prosecutor made several other references to
his own impressions of the evidence throughout his closing
argument. For example, on one such occasion the prosecutor
remarked:
Of course [Wright’s] denying that he said he knew
he should not have child pornography on his com-
puter. I’m not sure why he’s denying that because if
somebody asked me should you have child pornogra-
phy on your server, on your computer, I would say
of course not, but here he is saying no, no, no, we
weren’t — there was no child pornography and I
never said anything about how I knew I shouldn’t
have child pornography on this computer.
ER at 581 (emphases added). Though less egregious, there are
several more examples in the record. See, e.g., ER at 582
(“And there’s a number of places along the way where I think
what the defendant said, not only was not supported by the
evidence, but was so completely illogical it was absolutely
ridiculous.”) (emphasis added); id. at 589 (“The Dockmans
said it was a sweater, but I think they’d remember a suede
Tasmanian devil vest and distinguish that from a sweater.”)
(emphasis added); id. at 590 (“But the last one, the betrayal,
the three different prongs of this betrayal that were alluded to
18214 UNITED STATES v. WRIGHT
in the opening statement, I found that one most remarkable of
all.”) (emphasis added).14
[18] While the government responds to many of the state-
ments Wright focuses on, it includes only a passing reference
to the prosecutor’s “trifecta” comment. While it is probably
not correct to label this misconduct as vouching, see Nobari,
574 F.3d at 1078,15 the prosecutor’s comment not only gave
the jury his impression of the evidence in the case, but it
improperly introduced evidence outside the record—i.e., the
prosecutor’s experience with similar cases—as a means of
commenting on the defense’s case and Wright’s credibility.
Cf. United States v. Galloway, 316 F.3d 624, 632-33 (6th Cir.
2003) (statement during closing argument held to be improper
14
In addition, Wright identifies a number of instances in the record in
which the prosecutor referred to aspects of the defense’s case as “abso-
lutely ridiculous,” ER at 586, an “absurd notion,” id. at 591, and began
questions during his cross-examination of Wright with “incredibly,” id. at
547. We have not found remarks such as these to be improper. See United
States v. Velarde-Gomez, 224 F.3d 1062, 1073 (9th Cir. 2000) (not mis-
conduct to refer to defendant’s testimony in closing argument as a “silly
story” and “ridiculous”), rev’d en banc on other grounds, 269 F.3d 1023
(9th Cir. 2001) (en banc); Williams v. Borg, 139 F.3d 737, 744-45 (9th
Cir. 1998) (no misconduct where prosecutor called the defendant “stupid”
on four different occasions and referred to the defense’s closing argument
as “trash”); United States v. Molina, 934 F.2d 1440, 1445 (9th Cir. 1991)
(prosecutor’s statement that “[i]t’s unbelievable” to suggest that the gov-
ernment’s witness lied under oath not improper, since there were “many
instances of flatly contradictory testimony on important issues in the case,
and it was proper for the government to argue that the jury ought not to
believe the appellant’s version”).
15
In the usual case of vouching, the prosecutor does not merely give his
impression of the defendant’s case, or highlight his own experience;
rather, he explicitly assures the government witnesses’ veracity. See, e.g.,
Kerr, 981 F.2d at 1053 (prosecutor described the testimony of one govern-
ment witness as “very candid,” another as “candid,” and a third as “hon-
est”); United States v. Smith, 962 F.2d 923, 933 (9th Cir. 1992) (assuring
the jury that the government’s witness “could not just get up here and say
whatever he wanted to say” or he would be prosecuted for perjury) (alter-
ations omitted).
UNITED STATES v. WRIGHT 18215
where prosecutor told the jury about his experience trying
drug cases); McKoy, 771 F.2d at 1211 (jury could have con-
strued the testimony of former prosecutor, who testified as a
witness at trial, “as ‘expert testimony’ based on his personal
knowledge and his prior experience with other cases”).
Though the prosecutor’s statement might not technically be
viewed as improper vouching, it was certainly improper, since
it “denigrat[ed] the defense as a sham.” United States v. San-
chez, 176 F.3d 1214, 1225 (9th Cir. 1999); see also Her-
manek, 289 F.3d at 1101 (“Although appellants attempt to
characterize the prosecutor’s argument as improper vouching,
their contention is viewed more aptly as an allegation of pro-
secutorial misconduct for referring to facts not in evidence.”).
Accordingly, the prosecutor’s “trifecta” comment was
improper.
Similarly, the prosecutor’s repeated references to how he
viewed the evidence were also improper. See id. at 1100
(“[P]rosecutors’ arguments not only must be based on facts in
evidence, but should be phrased in such a manner that it is
clear to the jury that the prosecutor is summarizing evidence
rather than inserting personal knowledge and opinion into the
case.”).
Wright next contends that the prosecutor manipulated or
misstated the evidence and forced Wright to imply that Agent
Andrews lied on the stand. He first argues that the prosecutor
forced Wright to call Andrews a “rogue agent”—in reference
to the tactics she employed during Wright’s interview. It is
true that the prosecutor used the term “rogue agent” to refer
to Agent Andrews, and Wright wound up adopting that term
in response. See ER at 544-45. Defense counsel objected to
the prosecutor’s statement, and her objection was sustained.
There is no indication that the prosecutor was misstating evi-
dence. Rather, he was engaging Wright in a fairly argumenta-
tive cross-examination in order to poke holes in Wright’s
18216 UNITED STATES v. WRIGHT
version of the facts. There was nothing improper about the
prosecutor’s conduct in that instance.16
Wright also takes issue with the way in which the prosecu-
tor pitted Wright’s credibility against the government’s wit-
nesses. He relies on United States v. Combs, 379 F.3d 564,
573 (9th Cir. 2004), where we held it was improper to ask the
defendant point blank whether the testifying agent lied, noting
that the prosecutor referred several times in closing argument
to the defendant calling the agent a liar. Id. at 567-68. In
Combs, the prosecutor also impermissibly referenced the fact
that if the jury believed the testifying agent had lied, the agent
would have committed perjury, “flush[ing] his ten-year career
down the toilet.” Id. at 568.
Combs is distinguishable. The prosecutor did not force
Wright to impugn Agent Andrews’s testimony the same way
the prosecutor did in Combs. Rather, in his closing argument,
the prosecutor contrasted Wright’s testimony with that of
Agent Andrews and Detective Englander. Unlike in Combs,
where the prosecutor explicitly forced the defendant to
impugn the veracity of the agent’s testimony, the prosecutor’s
argument here was not improper. See Molina, 934 F.2d at
1445 (“In a case that essentially reduces to which of two con-
flicting stories is true, it may be reasonable to infer, and hence
to argue, that one of the two sides is lying.”); see also United
States v. Garcia-Cuizar, 160 F.3d 511, 520 (9th Cir. 1998)
(distinguishing Molina on the grounds that in Garcia-Cuizar,
the prosecutor interjected his own personal opinions about the
defendant’s and government witness’s credibility); United
States v. Sayetsitty, 107 F.3d 1405, 1409 (9th Cir. 1997)
16
Wright points to a number of other prosecutorial lines of questioning
that he contends resulted in the evidence being misstated. Upon our thor-
ough review of the record, we do not find any of these statements to be
particularly troubling. Rather, they consist mostly of argumentative ques-
tioning; indeed, the district court sustained many of defense counsel’s
objections on that basis.
UNITED STATES v. WRIGHT 18217
(“Criticism of defense theories and tactics is a proper subject
of closing argument.”).
Finally, Wright argues that the prosecutor improperly
insulted him several times throughout cross-examination and
in the prosecutor’s closing argument. Wright points to the fol-
lowing examples: (1) referring to Wright’s statement that he
used pornography to avoid being promiscuous, the prosecutor
stated “Like are those the only two options? I mean couldn’t
you be in a committed relationship?”; (2) the prosecutor asked
Wright during cross-examination, “You’re proud of your col-
lection of child pornography, aren’t you?” (Wright responded:
“No, it actually disgusts me that people would trade such
things.”); (3) the prosecutor referred to T-shirt slogans Wright
came up with for his business OffensiveTs.com; (4) the prose-
cutor told the jury that Wright’s practice of burning block-
buster movies was illegal; and (5) the prosecutor responded to
the defense’s theory that law enforcement was “out to get
him” by telling the jury that Wright was not Pablo Escobar or
“the Larry Flynt of child pornography.” Not one of these
statements was improper. “Prosecutors have considerable lee-
way to strike ‘hard blows’ based on the evidence and all rea-
sonable inferences from the evidence.” United States v.
Henderson, 241 F.3d 638, 652 (9th Cir. 2000) (holding prose-
cutor’s statements that the defendant “had an excuse for
everything” and “was trying to skirt the law—just like he tries
to skirt everything else” were not improper) (internal quota-
tion marks omitted); United States v. Rude, 88 F.3d 1538,
1547-48 (9th Cir. 1996) (not improper for prosecutor to refer
to the defendants as “crooks,” or “evil” at least eleven times,
or to use other derogatory remarks such as “con man,” or
“trolling around for victims” over 90 times).
[19] Having established that at least some of the prosecu-
tor’s statements in this case were improper, Wright must also
establish prejudice. The question is “whether it is more proba-
ble than not that the prosecutor’s conduct materially affected
the fairness of the trial.” Hermanek, 289 F.3d at 1102.
18218 UNITED STATES v. WRIGHT
Wright has not established prejudice. The improper state-
ments were relatively isolated incidents over the course of a
ten day trial. The “trifecta” comment was by far the most
egregious statement made by the prosecutor, though it too was
mitigated by defense counsel’s excellent rebuttal, which
focused extensively on the three defenses to which the prose-
cutor’s “trifecta” comment referred. While Wright’s credibil-
ity was certainly a key issue at trial, there is no indication that
the jury discredited his testimony. Rather, the jury acquitted
Wright of Counts 1 and 4-10, “reinforc[ing the] conclusion
that the prosecutor’s remarks did not undermine the jury’s
ability to view the evidence independently and fairly.” United
States v. Young, 470 U.S. 1, 18 n.15 (1985) (finding no plain
error despite prosecutor’s improper vouching based in part on
the fact that the jury acquitted the defendant of the most seri-
ous charge he faced); United States v. De Cruz, 82 F.3d 856,
863-64 (9th Cir. 1996) (finding allegedly improper prosecu-
torial comments to be harmless where the jury acquitted
defendant of one of the charges, indicating its ability to weigh
the evidence without prejudice).
[20] Other than the “trifecta” comment, the prosecutor’s
misconduct was fairly mild and was mitigated by the court’s
general jury instructions, given at the beginning of trial, as
well as at the end of the prosecutor’s closing argument and
during the final jury instructions that “[a]rguments and state-
ments by lawyers are not evidence.” See United States v.
Necoechea, 986 F.2d 1273, 1280 (9th Cir. 1993) (general
instruction sufficient to cure mild vouching). Accordingly, the
prosecutor’s improper statements amounted to harmless error.
C. Access to Mirrored Hard Drive
[21] On July 27, 2006, the Adam Walsh Child Protection
and Safety Act, Pub. L. 109-248, 120 Stat. 587 (the Adam
Walsh Act), was signed into law. Codified at 18 U.S.C.
§ 3509(m), the Adam Walsh Act altered the balance of pre-
trial criminal discovery under Rule 16 of the Federal Rules of
UNITED STATES v. WRIGHT 18219
Criminal Procedure. Under Rule 16, the government must
turn over to the defense material evidence obtained from the
defendant that the government intends to use in its case-in-
chief. Before the Act, courts had held that such material
includes “mirror image” copies of computer evidence in child
pornography cases. See United States v. Hill, 322 F. Supp. 2d
1081, 1091 (C.D. Cal. 2004) (Kozinski, J., sitting by designa-
tion). However, now under the Adam Walsh Act, “a court
shall deny, in any criminal proceeding, any request by the
defendant to copy, photograph, duplicate, or otherwise repro-
duce any property or material that constitutes child pornogra-
phy . . . , so long as the Government makes the property or
material reasonably available to the defendant.” 18 U.S.C.
§ 3509(m)(2)(A) (emphasis added). The Act goes on to define
“reasonably available” as providing the defendant “ample
opportunity for inspection, viewing, and examination at a
Government facility of the property or material by the defen-
dant, his or her attorney, and any individual the defendant
may seek to qualify to furnish expert testimony at trial.” Id.
§ 3509(m)(2)(B).
Wright raises three arguments with respect to his access to
a mirror-image copy of his computer hard drive in this case.
First, he argues that the hard drive was not made “reasonably
available” to him, thus violating a number of constitutional
rights;17 second, he claims that the district court erred in deny-
ing Wright a mid-trial continuance that would have allowed
him an additional day to subject the hard drive to forensic
testing; and third, he contends that the Federal Public
Defender (FPD) and its expert are employees of “the court”
under the meaning of the Act, and the FPD office is a “gov-
ernment facility” under the Act.
As Wright claims the violation of a number of constitu-
17
Wright includes general allegations that he was denied due process,
effective assistance of counsel, confrontation, and compulsory process.
Wright does not bring a facial challenge to the Act’s constitutionality.
18220 UNITED STATES v. WRIGHT
tional rights based on the evidence not being made “reason-
ably available” to him, our review of that issue is de novo. See
United States v. Larson, 495 F.3d 1094, 1100-01 (9th Cir.
2007) (de novo review of Confrontation Clause claims based
on exclusion of an area of inquiry); United States v. Baha-
monde, 445 F.3d 1225, 1228 n.2 (9th Cir. 2006) (de novo
review of denial of due process and compulsory process
claims). We review the district court’s denial of a continuance
for abuse of discretion. United States v. Rivera-Guerrero, 426
F.3d 1130, 1138 (9th Cir. 2005). We review de novo ques-
tions of the Adam Walsh Act’s construction. United States v.
Kaczynski, 551 F.3d 1120, 1123 (9th Cir. 2009).
1. Was the evidence made “reasonably available” to
Wright?
On November 14, 2006, the parties entered into a stipula-
tion and protective order outlining Wright’s access to a “bit-
by-bit image copy” of Wright’s hard drive. The stipulation
provided for the evidence to “remain in the care, custody and
control of the United States Attorney’s Office.” Defense
counsel and the defense expert, Rick Lavaty, were permitted
to access the evidence; the stipulation provided that they
would be “buzzed in during regular office hours” to the U.S.
Attorney’s Office and that when it was not being analyzed,
the hard drive was to remain in a secure location. The U.S.
Attorney’s Office established a “secure space” for the defense
expert to set up his own equipment and conduct the examina-
tion. If it was necessary, the expert was permitted to leave his
computer and the hard drive running overnight. At the conclu-
sion of each session, the hard drive was to be returned to an
authorized employee at the office where it would be placed
back in a secure location. The government agreed not to “look
at any material the defense team may leave in the secure
space, including, but not limited to, exhibits and documents,
nor . . . perform any forensic analysis of the bit-by-bit hard
drive provided to the defense team.” If the computer was left
running overnight, the government promised to “make reason-
UNITED STATES v. WRIGHT 18221
able attempts to be sure no one uses the offered secure space
in the defense expert’s absence.”
After the parties entered into the stipulation, Lavaty assem-
bled a “computer forensics cart” to take over to the U.S.
Attorney’s Office for his examinations. On November 27,
2006, defense counsel told the district court that Lavaty felt
“comfortable” with the stipulation and protective order and
planned on commencing his examination. Counsel estimated
that Lavaty needed approximately 150 hours for the full
forensics exam and to create all the exhibits necessary for
trial.
The defense was permitted to access the evidence for four-
teen months—that is, from November 14, 2006 (the date of
the stipulation), to the start of the trial on January 17, 2008.
Over the course of that time, defense counsel raised various
budget, timing, and staffing problems that counsel maintained
were preventing the defense from adequately examining the
hard drive. On January 4, 2008, less than two weeks before
trial (which had been adjourned numerous times up to that
point), Wright moved to continue trial based on Lavaty’s
inability to finish his examination, citing Lavaty’s other obli-
gations with the FPD office. Counsel also noted that her own
schedule and work demands had prevented her from concen-
trating fully on the case. The district court denied the continu-
ance. Wright renewed the motion one week later, on January
11, 2008, but it was denied again.
Wright argues that the evidence was not made reasonably
available to him because the district court failed to recognize
the defense office’s budget and staffing problems, Lavaty’s
other duties with the FPD office, and the court’s earlier denial
of Wright’s request for an outside expert, which was denied
because it was deemed too costly.
[22] Interpretation of the Adam Walsh Act is an issue of
first impression in this circuit; indeed, the Seventh Circuit is
18222 UNITED STATES v. WRIGHT
the only Court of Appeals yet to consider the Act. See United
States v. Shrake, 515 F.3d 743 (7th Cir. 2008) (rejecting a
facial challenge to the Act’s constitutionality). There are a
number of district court cases considering whether defendants
were given “ample opportunity for inspection, viewing, and
examination at a Government facility” of child pornography
material, yet none of those cases is particularly helpful to
Wright.
Wright principally relies on United States v. Knellinger,
471 F. Supp. 2d 640 (E.D. Va. 2007). There, the district court
concluded that the defendant had not been given an ample
opportunity to conduct an examination of the evidence and
thus ordered the government to turn over to the defendant a
copy of the hard drive. Id. at 650. In Knellinger, the defendant
intended to pursue the theory that the child pornography he
was charged with possessing was not produced using real
minors. Id. at 647; see Ashcroft v. Free Speech Coalition, 535
U.S. 234 (2002). The defendant’s expert witnesses, who
would have to be privately retained, testified that they would
not agree to work on the case if they could only perform their
examination at a government facility. Knellinger, 471 F.
Supp. 2d at 647-48. One expert testified that while he nor-
mally charged approximately $135,000 for his services in a
child pornography case, he would charge approximately
$540,000, excluding moving expenses, in a case in which he
had to analyze the material away from his office. Id. at 647.
He also testified that even if he were to perform his examina-
tion at a government facility, “he wouldn’t be able to service
the client or the attorney effectively.” Id. (internal quotation
marks omitted). As a result, he would not agree to work on
a case like Knellinger’s. Similarly, another expert testified
that he would not work on the case “because of the difficulty
associated with moving equipment to, and adequately per-
forming his analytical work in, a Government facility.” Id. at
648. Therefore, the terms of the Adam Walsh Act effectively
precluded the defendant from pursuing his only viable
defense.
UNITED STATES v. WRIGHT 18223
Knellinger is easily distinguishable. Unlike in Knellinger,
Wright’s forensic expert, Lavaty, claimed he was “comfort-
able” with the parties’ terms for providing Wright access to
the hard drive. Wright was afforded fourteen months to con-
duct his examination and does not claim that the agreed upon
terms entered into by the parties precluded Wright from pur-
suing a viable defense theory. Rather, Wright bases much of
his argument on the fact that prior to the Adam Walsh Act
being passed into law, the district court found that the govern-
ment’s proposed terms of access “would hamper defendant’s
preparation of this case,” and thus ordered the government to
provide Wright a mirror copy of the hard drive.18 However,
that ruling bears little, if any, relevance to whether the gov-
ernment’s proposed terms provided Wright with “ample
opportunity” to examine the evidence.
[23] Wright’s argument essentially boils down to the fol-
lowing contention: the Adam Walsh Act requires that the
defendant and the government have equal access to the child
pornography evidence. Yet this is not what the Act provides.
It provides only that the defendant be given “ample opportu-
nity” to examine the evidence. In any event, none of the cases
that Wright cites is apposite. For example, in United States v.
Cadet, 727 F.2d 1453, 1469 (9th Cir. 1984), we held that the
government is required to identify witnesses to the crime
whose testimony may be exculpatory. It was in that context
that we observed that “[b]oth sides have an equal right, and
should have an equal opportunity, to interview [such witness-
es].” Id. (internal quotation marks omitted).
Nor does the Seventh Circuit’s decision in Shrake help
Wright. In Shrake, after rejecting the defendant’s facial chal-
lenge to § 3509(m), the court expressed its concern over the
fact that the prosecution provided its own private expert con-
sultant an exact copy of the hard drive, but denied the defense
18
After the Adam Walsh Act became law, the district court granted the
government’s motion for reconsideration and reversed its prior order.
18224 UNITED STATES v. WRIGHT
the same. 515 F.3d at 746. The court stated that rather than
asking the district court to foreclose testimony by the prosecu-
tion’s expert, which the district court denied doing, “[t]he
appropriate relief—which defense counsel never sought—
would have been access on equal terms.” Id. at 747. Shrake
had no occasion to define what it meant by “access on equal
terms.” However, by “access,” the court appears to have been
referring to the types of forensic tools each side had available
to it in performing its examination. Indeed, the court noted
that “Shrake’s counsel did not seek access on equal terms,
perhaps because the prosecution’s expert did not use any
forensic tool that was unavailable to the defense expert when
he examined the hard drive.” Id. Thus, any defense request for
“access on equal terms” would have been pointless. In any
event, Shrake clearly does not hold that the defendant and the
government must be given an equal amount of time to exam-
ine the evidence, which is Wright’s main contention.
[24] We need not define the exact parameters of what it
means to give a defendant “ample opportunity” to examine
child-pornography evidence. Wright was permitted to access
the hard drive for a period of fourteen months in a secure
location within the U.S. Attorney’s Office. Wright makes no
claim that the parties’ arrangement threatened to disrupt the
attorney-client relationship or that the defense team’s work
product was compromised in any way. In short, Wright was
given “ample opportunity for inspection, viewing, and exami-
nation” under the Act. See United States v. Cordy, 560 F.3d
808, 816 (8th Cir. 2009) (in a case governed by the Adam
Walsh Act, defense counsel had adequate time for trial prepa-
ration based on having access to the computer data for three
months).
2. Did the district court err in denying Wright’s motion
for a mid-trial continuance?
Next, Wright argues that the district court improperly
denied his request for a one-day mid-trial continuance so that
UNITED STATES v. WRIGHT 18225
Lavaty could conduct further forensic testing. Wright claims
that the testing was necessary to rebut the government’s argu-
ment that the mIRC file server was installed long before 2002
(when Dittfurth moved in with Wright). Practically, this
weakened Wright’s defense—that Dittfurth was the person
responsible for the child pornography.
According to the government, Wright installed the mIRC
program on his computer in November 2000. On Day 7 of the
trial, during voir dire, the prosecutor asked Lavaty his opinion
about when Wright installed the mIRC program on his com-
puter. The prosecutor tried to establish that the program was
installed in 2000, not 2002 as Lavaty had testified. The prose-
cutor’s theory was that the 2002 creation date for the mIRC
files—which Lavaty testified showed that Wright installed the
program in 2002—was due to the installation of a newer ver-
sion of the mIRC program, thus replacing the older 2000 ver-
sion. Lavaty admitted that this was a possible explanation, but
also offered reasons for discounting such a theory. After the
prosecutor asked, “Did you test that?” Lavaty conceded that
he had not.
Wright argues that the government’s theory—that the
mIRC program had been installed in 2000—was not disclosed
to the defense until just five days before the start of trial.
When Lavaty admitted on the stand that he had not tested for
the reasons he gave for a 2002 installation date, Wright asked
for a one-day continuance so that Lavaty could conduct the
requisite tests. The court denied the request. Wright argues
that the district court abused its discretion in denying
Wright’s request for a continuance. We disagree.
First, on January 11, six days before the start of trial,
Wright moved for a continuance because the government had
apparently just disclosed (five days prior) an expert report
alleging that the mIRC and file-server programs were
installed in 2000. Wright told the district court that the contin-
uance was necessary because the government’s newly dis-
18226 UNITED STATES v. WRIGHT
closed evidence “relates specifically to Count 1 of the
indictment which is the ten-year mandatory minimum count
in the report of the forensic examination which was done just
this last Tuesday by their file server expert who is the guy
who wrote the program.” The jury acquitted Wright of Count
1. Therefore, to the extent that the continuance would have
allowed Wright to better prepare his defense as to Count 1, he
has not established prejudice. See Rivera-Guerrero, 426 F.3d
at 1139 (holding that the defendant must establish prejudice
from the denial of a continuance).
However, it is not entirely clear that the government’s the-
ory about the 2000 installation date related only to Count 1.
To the extent it related to the other alleged counts, Wright was
given a total of eleven days (seven business days) prior to the
start of trial to rebut the government’s evidence. This was
more than enough time. See United States v. Barrett, 703 F.2d
1076, 1081 (9th Cir. 1983) (“[F]airness requires that adequate
notice be given the defense to check the findings and conclu-
sions of the government’s experts.” (quoting United States v.
Kelly, 405 F.2d 26, 29 (2d Cir. 1969) (internal quotation
marks omitted))).
Moreover, despite Lavaty’s concession that he did not test
for the 2002 theory, he provided persuasive support during his
testimony even in the absence of testing. When the prosecutor
concluded his voir dire, defense counsel established on direct
examination that Lavaty’s 2002 theory was certainly possible.
Indeed, Lavaty testified that it was his “belief” that the mIRC
program was installed on Wright’s computer in December
2002. Cf. Rivera-Guerrero, 426 F.3d at 1138 (denial of the
continuance “resulted in the defendant’s inability to present
any evidence that might rebut the government’s medical
assertions” (emphasis added)).
[25] As we held above, Wright was given “ample opportu-
nity” to prepare his defense. Yet even without considering the
fourteen months the defense team had to conduct forensic
UNITED STATES v. WRIGHT 18227
testing, it had over a week to prepare expert testimony in
response to the government’s theory that Wright installed the
file-server software in 2000. Therefore, the district court did
not abuse its discretion in denying Wright’s motion for a one-
day mid-trial continuance.
3. Are the FPD office and its expert employees of “the
court” or is the FPD office a “government facility”
under the Act?
[26] Finally, Wright briefly argues that FPD counsel and
its expert are under the judiciary, and thus employees of “the
court,” see 18 U.S.C. § 3509(m) (requiring child pornography
to “remain in the care, custody, and control of either the Gov-
ernment or the court”), and that the FPD office is a “govern-
ment facility,” see id. (providing for inspection of the
contraband at a “Government facility”). Therefore, Wright
maintains, defense counsel was entitled to a mirrored copy of
the hard drive. Both arguments are contrary to the statute’s
language and structure, which differentiate between the Gov-
ernment, the court, and the members of the defense team
(including the “defendant, his or her attorney, and any indi-
vidual the defendant may seek to qualify to furnish expert tes-
timony at trial”). In any event, the government did provide the
defense team “ample opportunity” to examine the hard drive
at a “Government facility”—the U.S. Attorney’s Office. Even
assuming the FPD office is a “Government facility,” the stat-
ute does not require the government to provide the defendant
access at multiple facilities.
D. Jury Instruction
Wright’s final argument that he was denied a fair trial chal-
lenges the jury instructions on Counts 3 through 10. “We
review de novo whether the jury instructions accurately define
the elements of a statutory offense.” United States v. Sum-
mers, 268 F.3d 683, 687 (9th Cir. 2001). Wright raises two
issues; neither of which we find persuasive.
18228 UNITED STATES v. WRIGHT
First, he argues that the court’s instructions did not require
the jury to find that Wright knew the images that were specifi-
cally charged in the indictment were on his computer or that
they contained child pornography. We disagree. The jury was
instructed to find whether: (1) “the defendant knowingly pos-
sessed . . . a . . . desktop computer and hard disk . . . contain-
ing a visual depiction of a minor engaged in sexual explicit
conduct”; (2) “the defendant knew that the computer and
computer disks . . . contain[ed] a visual depiction of a minor
engaged in sexually explicit conduct”; and (3) “the defendant
knew that the visual depiction contained in the computer . . .
and hard disk . . . contained visual depiction of a minor
engaged in sexually explicit conduct.” The jury was also told
that “[i]n this case the parties have stipulated that the images
are of child pornography.” Thus there is no question that the
jury was asked whether Wright knew that the files charged in
the indictment—those stipulated to by the parties—were on
his computer or contained child pornography.
[27] Second, Wright contests the court’s definition of
“possession.” Again, in order to convict Wright of Counts 3
through 10, the jury had to find that Wright “knowingly pos-
sessed . . . a . . . desktop computer . . . containing a visual
depiction of a minor engaged in sexual explicit conduct.”
Wright argues that in defining the term “possession,” it was
error for the court to instruct simply that “[p]ossession as it
pertains to computer images can include proof that the defen-
dant had control over the images,” because such control
would be possible even if Wright did not know whether the
images were on his computer. However, in the paragraph
immediately preceding that instruction, the court told the jury
that “[a] person has possession of something if the person
knows of its presence and has physical control of it, or knows
of its presence and has the power and intention to control it.
More than one person can be in possession of something if
each knows of its presence and has the power and intention
to control it.” The district court clearly instructed the jury that
UNITED STATES v. WRIGHT 18229
Wright had to know the images were on his computer in order
to possess them.
E. Cumulative Error
Wright also argues that even if each alleged error did not
rise to reversible error, reversal is required due to their cumu-
lative effect on his trial.
“Even if no error individually supports reversal, the cumu-
lative effect of numerous errors may support reversal.” United
States v. Inzunza, 580 F.3d 894, 911 (9th Cir. 2009). An
important factor in considering the cumulative effect of errors
is the strength of the prosecution’s case. See Nobari, 574 F.3d
at 1082.
We have identified two potential forms of error in this case:
the exclusion of 404(b) evidence and the prosecutor’s
improper statements. Neither error, on its own, requires rever-
sal. However, we recognize that much of the prosecution’s
case was based on Wright’s statements to Agent Andrews and
Detective Englander. Because we are remanding to the district
court for fact-finding on Wright’s motion to suppress those
statements, we do not address Wright’s claim of cumulative
error at this stage of the proceedings. See United States v.
Blanco, 392 F.3d 382, 397 (9th Cir. 2004) (declining to con-
sider question of cumulative error in light of remand to the
district court for further fact-finding).19
CONCLUSION
For the foregoing reasons, we REVERSE Wright’s Count
19
Nor do we address Wright’s sentencing arguments at this time. Even
if we were to affirm Wright’s Count 3 conviction on review of the district
court’s fact-finding, the district court should “begin the sentencing process
afresh” in light of our reversal of Wright’s Count 2 conviction. United
States v. Handa, 122 F.3d 690, 692 (9th Cir. 1997).
18230 UNITED STATES v. WRIGHT
2 conviction under 18 U.S.C. § 2252A(a)(1). We REVERSE
the denial of Wright’s motion to suppress his statements to
Agent Andrews and Detective Englander, and REMAND with
instructions to the district court to make essential factual find-
ings explaining the basis for its decision. We AFFIRM as to
Wright’s other claims of error, though decline to consider his
claim of cumulative error and his challenges to his sentence
until the district court has found those facts essential to our
review of the suppression issue and resentenced Wright. This
panel retains jurisdiction over all future appeals in this case.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.
HUG, Circuit Judge, concurring in part:
As I see this case Wright was charged with offenses in ten
counts. He was acquitted on all counts except Count 2 and
Count 3, which are the subject of this appeal. Count 2 charged
Wright with shipping child pornography by computer in inter-
state commerce in violation of 18 U.S.C. § 2251(c)(1)(A),
(c(2)(A) and (d). Count 3 charged Wright with possession of
child pornography on a computer hard drive. Both counts
require for federal jurisdiction the requirements of 18 U.S.C.
§ 2252(a)(1) that the child pornography be knowingly mailed,
transported or shipped in interstate or foreign commerce.
The majority opinion holds that this requirement is not met
for Count 2 but is met for Count 3. Thus the remainder of the
opinion concerns only Count 3 — the possession count. I
agree with the interstate commerce rulings and I also agree
with the majority opinion’s discussion of all of the remaining
issues regarding Count 3 except the necessity to remand for
additional findings on the suppression issue.
The ruling of the district court was terse and the judge did
not make specific findings. The court stated, “after hearing
UNITED STATES v. WRIGHT 18231
the evidence and reviewing the memorandum filed by coun-
sel, the Court will deny the motion to suppress the state-
ments.” I agree with the Government’s brief, pages 53-58,
that the error was not “plain” and further, it was not error
because the ruling permitted appellate review of the legal
questions involved even though detailed findings were not
made. This was a case where the statements of the govern-
ment agents and Wright’s statements were diametrically
opposed. It was simply a matter of credibility and the district
court obviously believed the government agents as to what
happened — Wright was not in handcuffs, he was given a
Miranda warning, and he did not make an unambiguous
request for a lawyer. Wright even later admitted at trial his
statements were voluntary. It is obvious what the district court
found and it would simply be mechanical to detail it. I would
prefer we simply affirm that conviction and the 60 month sen-
tence.