United States v. Blauvelt

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 09-4601
CHRISTOPHER JUDE BLAUVELT,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William D. Quarles, Jr., District Judge.
(1:08-cr-00269-WDQ-1)

Argued: December 10, 2010

Decided: March 9, 2011

Before Sandra Day O’CONNOR, Associate Justice
(Retired), Supreme Court of the United States, sitting by
designation, TRAXLER, Chief Judge, and KEENAN,
Circuit Judge.

Affirmed by published opinion. Chief Judge Traxler wrote the
opinion, in which Justice O’Connor and Judge Keenan joined.

COUNSEL

ARGUED: Jason E. Silverstein, ROLAND WALKER &
MARK ZAYON, PA, Baltimore, Maryland, for Appellant.
2 UNITED STATES v. BLAUVELT
Benjamin M. Block, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee. ON
BRIEF: Lisa J. Sansone, LAW OFFICE OF LISA J. SAN-
SONE, Baltimore, Maryland, for Appellant. Rod J. Rosen-
stein, United States Attorney, Baltimore, Maryland, for
Appellee.

OPINION

TRAXLER, Chief Judge:

Christopher Jude Blauvelt appeals from his conviction and
sentence for production of child pornography, see 18 U.S.C.
§ 2251(a) and (e); possession of child pornography, see 18
U.S.C. § 2252(a)(4)(B) and (b)(2); possession of cocaine, see
21 U.S.C. § 844(a); and two counts of distributing a con-
trolled substance to a minor, see 21 U.S.C. §§ 841(a)(1) and
859(a). Having considered his numerous challenges, we
affirm.

I.

On January 11, 2007, Erin Ruley received a call from Anne
Bridges. Bridges claimed that Appellant Christopher Blauvelt,
Ruley’s ex-boyfriend and the father of Ruley’s child, had
emailed Bridges explicit photos of Ruley’s 14-year-old sister
B.R. By the time she contacted Ruley, Bridges had already
deleted the photos from her computer. Bridges, however, had
also dated Blauvelt, and she knew the password to his email
account. Bridges gave Ruley the password, and Ruley used it
to access Blauvelt’s email account. Ruley found pictures in
the account, including images of B.R. "in pornographic
poses," J.A. 598, wearing a "bra and thong underwear," J.A.
336, and apparently snorting cocaine with a minor male, T.J.
Additionally, there was a close-up image of a young female’s
genital area. Ruley recognized the interior of Blauvelt’s home
in the background of the photos.
 UNITED STATES v. BLAUVELT 3
Ruley went to her mother Linda’s home where again she
accessed Blauvelt’s email account and printed the pictures
and a screen shot of Blauvelt’s email inbox showing that the
images were sent from Blauvelt’s cell phone to his email
account. After viewing the pictures, Linda reported the inci-
dent to the Baltimore County Police Department. Around 2:00
p.m. on January 11, Officer Minton arrived at Linda’s home
and interviewed Ruley, B.R., and Linda in person. Officer
Minton viewed the images printed by Ruley and confirmed
with B.R. that she was indeed the girl shown in the pictures.
Ruley also showed Officer Minton Blauvelt’s email account
inbox on Linda’s computer screen and indicated that she had
printed the images sent to the inbox from Blauvelt’s cell
phone. Officer Minton did not independently verify Ruley’s
claim that the Hotmail account and the cell phone number
belonged to Blauvelt.

Officer Minton then took Ruley, B.R., and Linda to the
police station for an interview with Detective Ruffino of the
Vice Unit and Detective Williams of the Narcotics Unit. T.J.,
the other minor pictured with B.R. in some of the photos, was
also present for an interview. B.R. again identified herself as
the girl in the photos, but she denied having any memory of
the pictures being taken. T.J. claimed that he had taken the
pictures of B.R. with Blauvelt’s cell phone and then had
returned the phone to Blauvelt. The Detectives concluded that
T.J. could not have taken all of the pictures, however, because
both B.R. and T.J. are visible in at least one photo. B.R. and
T.J. explained that Blauvelt had supplied them with cocaine,
alcohol and psilocybin mushrooms. And, as she had done for
Officer Minton, Ruley again confirmed that the email address
and cell phone number belonged to Blauvelt.

Officer Minton and Detectives Ruffino and Williams began
preparing an application for a search warrant for Blauvelt’s
house based on these two interviews, the pictures printed by
Ruley, and the Hotmail inbox viewed by Officer Minton.
Around 9:00 p.m., as the officers were still drafting the war-
4 UNITED STATES v. BLAUVELT
rant application, Officers Cohen and Hench were dispatched
to observe Blauvelt’s home, having been informed that the
homeowner was suspected of committing child pornography
offenses using his cell phone. The officers saw Blauvelt leave
the house at approximately 10:00 p.m. and walk toward his
vehicle. The officers stopped him, told him that he was not
free to leave, that he was the subject of a criminal investiga-
tion, and that the police were in the process of applying for
a search warrant for his house. Officers Cohen and Hench did
not place Blauvelt in handcuffs, and did not at that time read
Blauvelt his Miranda rights. Blauvelt was then offered the
choice of remaining outside until the warrant was signed or
returning inside accompanied by the officers. Officer Hench
testified that law enforcement took these steps as a means of
maintaining the status quo until a search warrant was issued:

In these types of crimes where child pornography
is supposedly taken and possessed, it was through
electronic means, and the investigation said that a
cell phone was possibly used, and this type of media
can be destroyed rather easily. A cell phone could be
destroyed, and the media on a cell phone or on the
computer can be destroyed, and I was looking to pre-
serve that evidence, along with the drug evidence.
Drug evidence can also be destroyed, disposed of.

J.A. 299.

Blauvelt chose to wait inside with the officers, who per-
formed a protective sweep of the house as they entered and
then "sat . . . in the living room and waited for the search war-
rant." J.A. 298. As they waited in Blauvelt’s living room,
additional officers arrived; Officer Hench estimated that at
one point as many as eight officers were present. Blauvelt was
allowed to use his cell phone; however, he was required to
place it on a table after use and the officers "watched what he
was doing with the phone." J.A. 318. Eventually, the warrant
 UNITED STATES v. BLAUVELT 5
was signed at 12:40 a.m., about two and one-half hours after
Blauvelt returned inside with the officers to wait.

The five-page Probable Cause section of the application
provided in relevant part:

On 01/11/07 . . . [Officer Minton] was dispatched
to [the home of Ruley’s mother] in reference to a sex
offense report. Upon arrival . . . [Minton] was met by
[Erin Ruley]. She advised that she had just obtained
nude and sexually explicit photographs of her sister,
[B.R.], . . . a minor at the time . . . the photographs
were taken. [Ruley] then handed over five photo-
graphs of [B.R.] that were printed from a computer.
[Ruley] advised that these photographs were emailed
to an acquaintance from a Hotmail email address of
MRJUDEBLACK@hotmail.com. [Ruley] advised
that this Hotmail email address belongs to Mr. Chris-
topher Jude Blauvelt . . . . [Ruley] has a child in
common with [Blauvelt], and is in regular contact
with him. [During] the interview [Ruley] showed . . .
Minton a Hotmail email web page showing
approximately five incoming emails to
MRJUDEBLACK@hotmail.com from 4103820438
@vzwpix.com. She further advised that 4103820438
is the cell phone number for . . . Blauvelt’s cell
phone and Verizon wireless is his cell phone service
provider. . . . [Ruley] advised that after receiving and
viewing the photographs, she confirmed that her sis-
ter, B.R., was the subject in the pictures. . . .

. . . [Minton] then interviewed B.R. She identified
herself as the female in the above photographs and
advised that they were taken while at her friend
Christopher [Blauvelt]’s house.

. . . Detective S. Ruffino . . . and . . . Detective T.
Williams . . . responded to Northpoint precinct and
6 UNITED STATES v. BLAUVELT
interviewed [B.R.]. She advised that . . . herself and
a boy named [T.J.] . . . had been picked up by [Blau-
velt], and driven to his house . . . [where] [h]e pro-
vided them with mixed alcoholic beverages . . . [and]
"shrooms" . . . She advised that [Blauvelt] had a
large amount of cocaine . . . and show[ed] her and
T.J. how to snort the cocaine. . . . [B.R.] advised that
after snorting the cocaine, she doesn’t remember
anything else until she awakened at her own home
....

J.A. 112-14.

The affidavit also described the detectives’ interview of
T.J. T.J.’s recollection of their drug use was very similar to
that of B.R. T.J., however, also provided details about the
explicit photos:

. . . [B.R.] then walked into the living room,
according to [T.J.], and told [T.J.] to come into the
bedroom. [T.J.] said he then got up from the couch
and went into [the bedroom] where [B.R.] was lay-
ing on the bed still only wearing her bra and thong
underwear. [T.J.] said he asked Christopher Blauvelt
for his cell phone, telling [him] that he was going to
take pictures of [B.R.]. Christopher Blauvelt gave
[T.J.] his camera cell phone, and [T.J.] . . . took
approximately 2-3 pictures of [B.R.] [as she per-
formed a] sexual act. . . . [T.J.] said that he put the
camera cell phone belonging to Christopher Blauvelt
back on the sofa, leaving the pictures that he had
taken on the cell phone. . . .

J.A. 114-15.

After being informed that the warrant had been signed, the
officers read the warrant to Blauvelt and informed him of his
Miranda rights, and Blauvelt signed a written waiver form.
 UNITED STATES v. BLAUVELT 7
Law enforcement officers then conducted the search and
seized numerous items, including Blauvelt’s cell phone, a
desktop computer, a media storage card, a digital camera, and
a mirror and a straw.

When Detectives Ruffino and Williams and Officer Minton
arrived, they took Blauvelt into a bedroom, closed the door
and conducted an interview after re-affirming that Blauvelt
understood the explanation of his Miranda rights. Blauvelt
initially denied taking any pictures of B.R. himself and indi-
cated that T.J. had taken all of the pictures. When the detec-
tives, however, pointed out that T.J. was in some of the
pictures and could not have taken them himself, Blauvelt
responded, "‘Oops.’" J.A. 693. Blauvelt also admitted e-
mailing himself the photographs of B.R. taken with his cell
phone.

Forensic analysis of the items seized during the search
revealed 23 video files containing child pornography on the
desktop hard drive, 51 sexually explicit images of B.R., and
four sexually explicit videos of B.R. on the media storage
card. Additionally, forensic testing revealed trace amounts of
cocaine on the mirror and straw seized from Blauvelt’s resi-
dence.

Blauvelt was charged in a seven-count indictment as fol-
lows: (Count 1) Production of child pornography in violation
of 18 U.S.C. § 2251(a) and (e); (Count 2) Possession of child
pornography in violation of 18 U.S.C. § 2252(a)(4)(B) and
(b)(2); (Count 3) Distribution of a controlled substance
(cocaine) to B.R., a minor, in violation of 21 U.S.C.
§§ 841(a)(1) and 859(a); (Count 4) Distribution of a con-
trolled substance (psilocybin) to B.R., a minor, in violation of
21 U.S.C. §§ 841(a)(1) and 859(a); (Count 5) Distribution of
a controlled substance (cocaine) to T.J., a minor, in violation
of 21 U.S.C. §§ 841(a)(1) and 859(a); (Count 6) Distribution
of a controlled substance (psilocybin) to T.J., a minor, in vio-
8 UNITED STATES v. BLAUVELT
lation of 21 U.S.C. §§ 841(a)(1) and 859(a); and (Count 7)
Possession of cocaine in violation of 21 U.S.C. § 844(a).

The jury returned a guilty verdict on all Counts except
Counts 4 and 6 (alleging the distribution of psilocybin to B.R.
and T.J.). Blauvelt received a 293-month sentence.

II.

A.

Blauvelt argues that the district court erroneously denied
his motion to suppress the evidence seized pursuant to the
search warrant for lack of probable cause. When considering
a district court’s denial of a motion to suppress, this court
reviews findings of fact for clear error and legal conclusions
de novo. See United States v. Blake, 571 F.3d 331, 338 (4th
Cir. 2009). Even though we review de novo the district
court’s denial of a suppression motion, "the determination of
probable cause by the issuing magistrate is entitled to great
deference from this court." United States v. Hodge, 354 F.3d
305, 309 (4th Cir. 2004). Essentially, this court’s duty is lim-
ited "‘to ensur[ing] that the magistrate had a substantial basis
for concluding that probable cause existed.’" Id. (quoting Illi-
nois v. Gates, 462 U.S. 213, 238-39 (1983)).

"Although the concept of probable cause defies a precise
definition, it ‘exist[s] where the known facts and circum-
stances are sufficient to warrant a man of reasonable prudence
in the belief that contraband or evidence of a crime will be
found’ in the place to be searched." United States v. Richard-
son, 607 F.3d 357, 369 (4th Cir. 2010) (quoting Ornelas v.
United States, 517 U.S. 690, 696 (1996)). The issuing judge
is tasked with "mak[ing] a practical, common sense decision
whether, given all the circumstances set forth in the affidavit
before him, . . . there is a fair probability that contraband or
evidence of a crime will be found in a particular place."
Gates, 462 U.S. at 238.
 UNITED STATES v. BLAUVELT 9
Blauvelt contends that the affiants failed to present the issu-
ing magistrate with sufficient evidence to establish the reli-
ability of the information supplied by Ruley, particularly his
cell phone number and email address. Because law enforce-
ment officers did not independently verify that the cell phone
and email accounts belonged to him, Blauvelt suggests that it
was critical for the supporting affidavit to include information
reflecting the credibility, veracity and reliability of Ruley, the
primary source of evidence against him.

Relying on United States v. Wilhelm, 80 F.3d 116 (4th Cir.
1996), Blauvelt likens Ruley to an unknown tipster whose
information must be substantially corroborated to establish
probable cause. In Wilhelm, we held probable cause to be
lacking for a search warrant premised solely on information
supplied to police by an anonymous phone caller whom the
attesting officer never met face-to-face. See id. at 120-21.
There, the only information supplied by the caller that could
be corroborated prior to the search were directions to the
defendant’s house, which was insufficient to cure a "bare
bones" supporting affidavit:

Upholding this warrant would ratify police use of
an unknown, unproven informant-with little or no
corroboration-to justify searching someone’s home.
...

The minimal corroboration provided in this case
simply was insufficient. The conclusion that an
informant is reliable and mature based only on brief
telephone conversations is dubious, and the affidavit
does not disclose any basis for Proctor’s conclusion
that her tipster was a "concerned citizen." Moreover,
the only corroboration Proctor provided was that the
informant’s directions to Wilhelm’s home were cor-
rect. Almost anyone can give directions to a particu-
lar house without knowing anything of substance
about what goes on inside that house, and anyone
10 UNITED STATES v. BLAUVELT
who occasionally watches the evening news can
make generalizations about what marijuana looks
like and how it is packaged and sold.

Id.

Blauvelt’s attempt to force his case into the Wilhelm fact
pattern is clearly unavailing. Most obviously, Ruley is not an
anonymous tipster—not only did three officers meet with her
(and B.R.) in person, but they did so twice. As we have previ-
ously explained,

[t]here is a substantial difference between an infor-
mant who deals with the authorities in person and an
anonymous phone caller. . . . [C]ourts have had no
difficulty distinguishing between cases involving
face-to-face encounters with informants and cases
involving anonymous tipsters. Unlike an anonymous
tipster, an informant who meets face-to-face with an
officer provides the officer with an opportunity to
assess his credibility and demeanor and also exposes
himself to accountability for making a false state-
ment.

United States v. Perez, 393 F.3d 457, 462 (4th Cir. 2004)
(citation and internal quotation marks omitted). Moreover,
unlike the tipster in Wilhelm, Ruley provided information
about Blauvelt’s criminal activity that could not have been
given by "anyone who occasionally watches the evening
news." Wilhelm, 80 F.3d at 120. Also, the investigating offi-
cers corroborated Ruley’s information by actually viewing
both the images and the inbox for Blauvelt’s email account,
as well as confirming with B.R. that she was the girl appear-
ing in the images and speaking with T.J.

The ample evidence set forth in the supporting affidavit
submitted with the warrant application afforded the magistrate
a substantial basis upon which to conclude that probable
 UNITED STATES v. BLAUVELT 11
cause existed. As already mentioned, Detectives Ruffino and
Williams, as well as Officer Minton, personally viewed sug-
gestive photos of B.R. in Blauvelt’s apartment. Likewise, the
officers viewed pictures of B.R. and T.J. appearing to use
cocaine in Blauvelt’s apartment. Officer Minton viewed Blau-
velt’s email inbox and observed that the digital picture files
had been sent from the same cell phone account which Ruley
identified as Blauvelt’s. And, although law enforcement
agents did not independently verify Blauvelt’s ownership of
these accounts before applying for the search warrant, they
indicated in the supporting affidavit that Ruley had a previous
relationship and shared a child with Blauvelt. Additionally,
the officers had T.J.’s corroborating statements that the pic-
tures were taken with Blauvelt’s phone in his house. This evi-
dence was more than sufficient "‘to warrant a man of
reasonable prudence in the belief that contraband or evidence
of a crime will be found’ in the place to be searched." Rich-
ardson, 607 F.3d at 369 (quoting Ornelas, 517 at 696).

B.

Next, Blauvelt argues that the district court erroneously
denied his request for a hearing pursuant to Franks v. Dela-
ware, 438 U.S. 154 (1978). In Franks, the Supreme Court
instructed that

where the defendant makes a substantial preliminary
showing that a false statement knowingly and inten-
tionally, or with reckless disregard for the truth, was
included by the affiant in the warrant affidavit, and
if the allegedly false statement is necessary to the
finding of probable cause, the Fourth Amendment
requires that a hearing be held at the defendant’s
request.

Id. at 155-56. If the defendant is able to establish the

allegation of perjury or reckless disregard . . . and,
with the affidavit’s false material set to one side, the
12 UNITED STATES v. BLAUVELT
affidavit’s remaining content is insufficient to estab-
lish probable cause, the search warrant must be
voided and the fruits of the search excluded to the
same extent as if probable cause was lacking on the
face of the affidavit.

Id. at 156.

In this case, Blauvelt contends that the warrant affidavit
omitted material facts rather than included false ones. He
claims the affidavit should have disclosed, but did not dis-
close, that Ruley and Blauvelt were engaged in child support
and custody litigation at or near the time of this incident; that
Ruley had previously filed a complaint leading to Blauvelt’s
arrest for telephone misuse; and that Ruley herself had a crim-
inal record, allegedly having been convicted for driving under
the influence. This information, Blauvelt claims, would have
caused a reasonable reviewing magistrate to question Ruley’s
credibility and motives.

"To satisfy the Franks’ intentional or reckless falsity
requirement for an omission, the defendant must show that
facts were omitted with the intent to make, or in reckless dis-
regard of whether they thereby made, the affidavit mislead-
ing." United States v. Tate, 524 F.3d 449, 455 (4th Cir. 2008)
(internal quotation marks omitted). "[T]he omission [must be]
designed to mislead or [must be] made with reckless disregard
of whether it would mislead." Id. Therefore, to succeed on his
Franks claim, Blauvelt must

make a substantial preliminary showing that [the
officers] omitted material facts that when included
would defeat a probable cause showing—i.e., the
omission would have to be necessary to the finding
of probable cause—and that the omission was
designed to mislead or was made with reckless disre-
gard of whether it would mislead.
 UNITED STATES v. BLAUVELT 13
Id. (citation and internal quotation marks omitted).

Even though none of the officers had actual knowledge of
the impeaching evidence against Ruley, Blauvelt insists its
omission was intentional, or at least reckless, because the
information was available to the officers had they looked.
Blauvelt contends that knowledge of the information is
imputed to the officers applying for the warrant under the col-
lective knowledge doctrine. See United States v. Wells, 98
F.3d 808, 810 (4th Cir. 1996). We disagree. The collective
knowledge doctrine applies when at least some, but not all, of
an investigative team has actual knowledge of facts necessary
to a finding of probable cause. See id. ("[A]lthough the agent
who actually seized the weapon pursuant to the supervising
agent’s instructions had no personal knowledge that Wells
was a convicted felon, it is sufficient that the agents collec-
tively had probable cause to believe the weapon was evidence
of a crime at the time of the seizure.") The knowledge is
imputed from one officer to another such that the officers col-
lectively are assumed to have actual knowledge of the
imputed fact. But Blauvelt’s argument goes too far. We have
not applied this doctrine to impute knowledge of facts to an
officer seeking a warrant merely because such facts are acces-
sible to the law enforcement community at large. Moreover,
even if the warrant affidavit had included this impeaching
information, there would still have been a sufficient basis, in
light of the totality of the circumstances, for the issuing mag-
istrate to make a finding of probable cause. Indeed, probable
cause was not based solely on the word of Ruley. The actual
pictures were produced during a face-to-face meeting with the
victim and corroborating statements from more than one wit-
ness were obtained. Accordingly, we reject Blauvelt’s Franks
argument.

C.

Blauvelt contends that his three-hour detention prior to the
issuance of the search warrant constituted an illegal arrest and
14 UNITED STATES v. BLAUVELT
that the district court should have suppressed the incriminat-
ing statements he made while still in detention during the
search of his home. See, e.g., Kaupp v. Texas, 538 U.S. 626,
627 (2003) (per curiam) (discussing "the Fourth Amendment
rule that a confession obtained by exploitation of an illegal
arrest may not be used against a criminal defendant" (internal
quotation marks omitted)). The government responds that it
was constitutionally permissible for officers to hold Blauvelt
in custody for a reasonable time in order to prevent the
destruction or removal of evidence while they applied for a
search warrant.* Cf. Illinois v. McArthur, 531 U.S. 326, 328-
33 (2001) (permitting the seizure of a private residence for
two hours until a search warrant could be obtained where
police believed the suspect would destroy evidence unless
restrained).

Assuming without deciding that it was unlawful for law
enforcement officers to detain Blauvelt under these circum-
stances and that the district court should have suppressed
Blauvelt’s statements, we nevertheless conclude that such an
error was harmless. See Arizona v. Fulminante, 499 U.S. 279,
295 (1991) (concluding that harmless-error analysis applies to
coerced or involuntary statements). The statements that Blau-
velt sought to exclude arguably constituted an admission that
he illegally possessed and produced the child pornography
images of B.R. The minimal significance of Blauvelt’s incul-
patory statements becomes apparent when viewed in the con-
text of the overwhelming evidence of his illegal activity,
much of which was discovered through a subsequent forensic
examination of Blauvelt’s computer. Through the testimony
of Dana McAlister, a computer forensic examiner for the Bal-

*Officer Hench testified that the crimes at issue were committed
"through electronic means . . . and this type of media can be destroyed
rather easily." J.A. 299. Officer Hench explained that "[a] cell phone could
be destroyed, and the media on a cell phone or on the computer can be
destroyed, and [he] was looking to preserve that evidence, along with the
drug evidence. Drug evidence can also be destroyed, disposed of." Id.
 UNITED STATES v. BLAUVELT 15
timore County Police Department, the government identified
23 video files containing child pornography that were stored
on Blauvelt’s computer hard drive in a folder created in asso-
ciation with Limewire, a peer-to-peer file sharing program.
"[P]eer-to-peer networks . . . [permit] users’ computers [to]
communicate directly with each other, not through central
servers." Metro-Goldwyn-Mayer Studios Inc. v. Grokster,
Ltd., 545 U.S. 913, 919-20 (2005). Based on her experience
as a computer forensic investigator, McAlister explained that
the use of peer-to-peer file sharing programs such as
Limewire is a common and popular means by which child
pornography is shared. See generally Jesse P. Basbaum, Ineq-
uitable Sentencing for Possession of Child Pornography: A
Failure to Distinguish Voyeurs from Pederasts, 61 Hastings
L. J. 1281, 1299 (May 2010) ("Though file-sharing technol-
ogy is most commonly associated with the sharing of copy-
rightable material, recent studies show that peer-to-peer
technology is increasingly popular for the dissemination of
child pornography." (footnote and internal quotation marks
omitted)).

Additionally, McAlister testified that 4 video files and 51
still images were recovered from a media storage card that
was seized during the search of Blauvelt’s home. The videos
and stills showed a girl having sex with an adult male. During
her testimony, B.R. confirmed that she was the girl in the vid-
eos and stills stored on the media card. Although the man’s
face was not visible, B.R. testified that the man in the videos
and the stills was Blauvelt and that Blauvelt took the videos.
B.R. identified the man’s voice on the videos as being Blau-
velt’s, whom she has known since the age of five. Further-
more, the government presented the testimony of three adult
women who had previously engaged in sexual activity with
Blauvelt and were able to identify him at trial as the man in
the videos and stills with B.R. based on his voice, his genitals
(which bore no tattoo), and his mannerisms during inter-
course.
16 UNITED STATES v. BLAUVELT
In sum, there was overwhelming evidence that Blauvelt
possessed and produced child pornography. Although the
statements Blauvelt made on the night of the search arguably
undercut his identity defense based on the tattoo, the other
evidence establishing Blauvelt as the man in the videos and
pictures with B.R. was so one-sided that it is clear to us
beyond a reasonable doubt that the jury would have reached
the same guilty verdict even without the statements. See
United States v. Forrest, 429 F.3d 73, 81 (4th Cir. 2005)
(explaining that the improper admission of evidence "is harm-
less, if viewing the record as a whole, it is clear beyond a rea-
sonable doubt that the jury would have returned a verdict of
guilty absent the [improperly admitted evidence]" (internal
quotation marks omitted)). In light of the record as a whole,
we conclude that the statements Blauvelt sought to exclude
had little effect compared to the compelling testimony from
the victim herself and Blauvelt’s former sexual partners that
he was the man in the videos with B.R. and that he acquired
the tattoo after the events in question.

Finally, to the extent the statements evidenced Blauvelt’s
guilt with regard to the possession and distribution of cocaine
to a minor, the evidence of Blauvelt’s guilt on these charges
was wholly one-sided. The government introduced physical
evidence recovered in the search of Blauvelt’s apartment,
including a mirror coated with cocaine residue and a straw.
The mirror was recovered from Blauvelt’s bedroom, where
the cell phone pictures of B.R. were taken. Moreover, Detec-
tive Ruffino testified that the mirror was the same one appear-
ing in the cell phone pictures of B.R. snorting cocaine. In
addition, T.J. and B.R. both indicated that Blauvelt gave them
cocaine and alcohol among other things. Again, we have little
difficulty in concluding beyond a reasonable doubt that the
jury would have reached the same guilty verdict even without
Blauvelt’s statements.

D.

Prior to trial, the government moved pursuant to Federal
Rule of Evidence 404(b) to introduce sexually explicit video-
 UNITED STATES v. BLAUVELT 17
tapes Blauvelt made of himself masturbating and engaging in
sexual relations with A.B., an adult female; and engaging in
sexual relations with C.M., another adult female. The govern-
ment also sought to introduce evidence that Blauvelt used ille-
gal drugs with A.B. The district court denied the motion as to
the videotape of C.M. but admitted the other evidence.

Blauvelt challenges this ruling, contending that the prof-
fered material failed to qualify for one of the permissible uses
specified by Rule 404(b), and that whatever probative value
the evidence has is outweighed by the prejudicial effect of its
admission into evidence. We review such evidentiary rulings
for abuse of discretion. See United States v. Basham, 561 F.3d
302, 325 (4th Cir. 2009). Because "[j]udgments of evidentiary
relevance and prejudice are fundamentally a matter of trial
management," we "defer[ ] to the discretion of trial courts"
and "will not vacate a conviction unless we find that the dis-
trict court judge acted arbitrarily or irrationally in admitting
evidence." United States v. Benkahla, 530 F.3d 300, 309 (4th
Cir. 2008) (internal quotation marks omitted).

Under Rule 404(b), "[e]vidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in
order to show action in conformity therewith." Such "bad
acts" evidence, however, may "be admissible for other pur-
poses, such as proof of motive, opportunity, intent, prepara-
tion, plan, knowledge, identity, or absence of mistake or
accident." Fed. R. Evid. 404(b). Rule 404(b) is "an inclusive
rule, admitting all evidence of other crimes or acts except that
which tends to prove only criminal disposition." United States
v. Young, 248 F.3d 260, 271-72 (4th Cir. 2001) (internal quo-
tation marks omitted). To be admissible under Rule 404(b),
prior bad acts evidence: (i) must be relevant to an issue other
than character, such as identity or motive, see United States
v. Siegel, 536 F.3d 306, 317-18 (4th Cir. 2008); (ii) must be
necessary to prove an element of the crime charged, see id. at
319; (iii) must be reliable, see id.; and (iv) its probative value
must not be substantially outweighed by its prejudicial nature,
18 UNITED STATES v. BLAUVELT
see id.; United States v. Mohr, 318 F.3d 613, 619-20 (4th Cir.
2003).

The district court did not specify the particular basis under
Rule 404(b) on which it was admitting the "bad acts" evi-
dence. Nonetheless, we may sustain the admission of such
evidence on any viable theory. See United States v. Boyd, 53
F.3d 631, 637 (4th Cir. 1995).

The government contends the videotapes and stills were
relevant to prove identity, motive and intent. We agree. First,
Blauvelt raised identity as a defense, arguing that because he
has a tattoo on his penis, he could not have been the adult
male shown in the child pornography videos, who had no
such tattoo. In support of this defense, Blauvelt offered the
testimony of his friend Gregory Henderson that Henderson
saw the tattoo in 2006. The government countered that Blau-
velt acquired the tattoo after the creation of the videos and
pictures that were the basis of the charges against Blauvelt.
To this end, the government offered the videotape in which
Blauvelt, without a tattoo, is seen masturbating, and offered
evidence that the videotape was created after the charged
child pornography videos and pictures were created.

Finally, the probative value of the evidence was not sub-
stantially outweighed by unfair prejudice. The 404(b) evi-
dence was less sensational than the child pornography with
which Blauvelt was charged.

E.

Blauvelt next argues that the district court erred in applying
an obstruction of justice enhancement to his offense level
under the Sentencing Guidelines ("U.S.S.G."). Under
U.S.S.G. § 3C1.1, a defendant’s base offense level is to be
increased two levels for obstruction of justice if:

(A) the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration
 UNITED STATES v. BLAUVELT 19
of justice with respect to the investigation, prosecu-
tion, or sentencing of the instant offense of convic-
tion, and (B) the obstructive conduct related to (i) the
defendant’s offense of conviction and any relevant
conduct; or (ii) a closely related offense . . . .

The district court makes an enhancement determination
based on a preponderance of the evidence standard. See
United States v. Grubbs, 585 F.3d 793, 799 (4th Cir. 2009).

The government sought the two-level obstruction enhance-
ment on the theory that Blauvelt acquired the tattoo after
becoming aware of the charges for the purpose of mounting
an identity defense. Furthermore, the government contended
that an obstruction enhancement was appropriate because
Blauvelt bolstered this identity defense by calling Henderson,
who had terminal cancer, to testify that Blauvelt acquired the
tattoo in 2006 before the child pornography videos and stills
at issue were created.

The district court imposed the obstruction enhancement
based on two factual determinations. First, the district court
concluded that Blauvelt acquired his tattoo after the videos
were created. Second, in light of this conclusion and the other
evidence establishing Blauvelt’s identity in the pictures and
videos, the court concluded that Blauvelt had encouraged
Henderson to testify falsely, describing it as a "cynical use of
a dying friend in an effort to obstruct justice." J.A. 1492.

Blauvelt’s primary contention is that the obstruction
enhancement violated his Sixth Amendment rights as delin-
eated in Booker and Apprendi because the facts supporting the
imposition of the enhancement were neither admitted by him
nor found by a jury beyond a reasonable doubt. This argument
is clearly without merit; we have rejected this argument and
others like it on more than one occasion. See Grubbs, 585
F.3d at 799 ("[T]he court’s underlying ability to make factual
findings regarding uncharged conduct does not violate the
20 UNITED STATES v. BLAUVELT
Sixth Amendment’s jury trial guarantee."); Benkahla, 530
F.3d at 312 ("Sentencing judges may find facts relevant to
determining a Guidelines range by a preponderance of the
evidence, so long as that Guidelines sentence is treated as
advisory and falls within the statutory maximum authorized
by the jury’s verdict."). Blauvelt does not contend that the dis-
trict court treated the advisory guidelines sentencing range as
mandatory or that his sentence exceeded the maximum autho-
rized by the jury’s verdict. Accordingly, we reject this argu-
ment.

To the extent that Blauvelt challenges the evidentiary basis
for the district court’s factual determination that he willfully
obstructed justice, we disagree. The evidence previously
recounted is sufficient to permit the district court to infer that
Blauvelt called his friend as a witness to mislead the jury as
to when Blauvelt acquired the tattoo. We conclude that the
district court’s findings in this regard were not clearly errone-
ous and supported the application of the obstruction of justice
enhancement.

F.

During the trial, one of the jurors exchanged emails about
an unrelated subject with Michael Leotta, an Assistant United
States Attorney in the Northern Division of the Maryland
United States Attorney’s Office which was prosecuting the
charges against Blauvelt. Leotta, however, did not personally
participate in Blauvelt’s prosecution and trial. At the time of
the trial, Leotta was serving as treasurer of the Francis D.
Murnaghan, Jr. Appellate Advocacy Fellowship, Inc., a non-
profit legal services organization established by former clerks,
colleagues and friends as a tribute to the late Fourth Circuit
Judge Francis D. Murnaghan, Jr.

Leotta sent an email to the local accountant who had pre-
pared the tax returns for the Murnaghan Fellowship request-
ing a bill for services rendered. As it turned out, this
 UNITED STATES v. BLAUVELT 21
accountant ("Juror #1") had been selected and was serving as
a member of the Blauvelt jury. Juror #1 responded that sup-
plying the accounting bill would be "[n]o problem," then
added: "On jury duty this week up in Baltimore. Federal case
— child porn etc. . . loving life (sarcasm). You guys do not
get near enough the credit you deserve for what you do! I had
no idea what it takes to do your job. I’m sure you don’t get
paid enough either." J.A. 1383AB. By the time this incident
was brought to the attention of the district court, the jury had
already rendered a verdict.

Blauvelt moved for a new trial, arguing that Juror #1’s fail-
ure to disclose his relationship with the United States Attor-
ney’s Office and his improper contact with a federal
prosecutor during the trial deprived Blauvelt of his right to a
fair and impartial jury. The district court conducted an eviden-
tiary hearing on the motion for a new trial. Leotta testified
that he was not aware of Juror #1’s jury service when he sent
the email regarding the accounting bill. Upon receiving the
reply email, Leotta indicated that he immediately sought the
advice of the office’s Professional Responsibility Officer.
Juror #1 also testified, confirming that he knew Leotta before
the trial as the treasurer of the Murnaghan Fellowship. Juror
#1 testified that he knew Leotta was an attorney, but that he
did not know Leotta was a federal prosecutor and actually
believed that Leotta worked for the state government. He
explained that his email was meant as a compliment "to
everybody in this courtroom" because "from the court
reporter, to these guys, to the Judge, how he ran things from
start to finish, [he] was blown away by what [the lawyers and
court personnel] actually have to go through." J.A. 1398.
Finally, Juror #1 confirmed that the email exchange did not
affect his ability to consider the evidence impartially and that
he had no undisclosed bias toward the prosecution or the
defense. The district court denied the motion for a new trial
following the hearing.

The Sixth Amendment guarantees the right to a "trial[ ] by
an impartial jury." U.S. Const. amend. VI. "The right to trial
22 UNITED STATES v. BLAUVELT
by an impartial jury ‘guarantees . . . a fair trial by a panel of
impartial, indifferent jurors.’" Robinson v. Polk, 438 F.3d
350, 359 (4th Cir. 2006) (quoting Irvin v. Dowd, 366 U.S.
717, 722 (1961)). This right to impartial jurors is threatened
by "private communications between an outside party and a
juror." Fullwood v. Lee, 290 F.3d 663, 677 (4th Cir. 2002). In
fact, "[b]ecause the potential for mischief is so great when a
third party establishes private, extrajudicial contact with a
juror, the Supreme Court adopted the rule that ‘any private
communication . . . with a juror during a trial about the matter
pending before the jury is . . . presumptively prejudicial . . .
.’" Id. at 678 (quoting Remmer v. United States, 347 U.S. 227,
229 (1954)).

Applying the Supreme Court’s decision in Remmer, we
established the following burden-shifting approach to consid-
ering claims of outside juror contact:

The party who is attacking the verdict bears the ini-
tial burden of introducing competent evidence that
the extrajudicial communications or contacts were
more than innocuous interventions. If this minimal
standard is satisfied, the [Remmer] presumption is
triggered automatically. The burden then shifts to the
prevailing party to prove that there exists no reason-
able possibility that the jury’s verdict was influenced
by an improper communication.

United States v. Cheek, 94 F.3d 136, 141 (4th Cir. 1996) (cita-
tion and internal quotation marks omitted).

The district court concluded that the communication
between Leotta and Juror #1 was not such that the Remmer
presumption of prejudice applied. The court concluded that
Leotta’s email was unrelated to the trial and noted that Leotta
did not know that he was emailing a juror during an ongoing
criminal trial and did not attempt to influence the verdict.
Blauvelt, however, argues that the communication was related
 UNITED STATES v. BLAUVELT 23
to trial, and therefore presumptively prejudicial, because Juror
#1’s response to Leotta mentioned that he was serving as a
juror on a federal child pornography case in Baltimore.

In determining whether the Remmer presumption of preju-
dice applies, we consider these factors: "(1) any private com-
munication; (2) any private contact; (3) any tampering; (4)
directly or indirectly with a juror during trial; (5) about the
matter before the jury." Cheek, 94 F.3d at 141. Clearly, there
was direct, private contact with a sitting juror. However, no
one suggests there was any tampering or any attempt by
Leotta to exert any influence; indeed, Blauvelt concedes that
Leotta’s email was unrelated to the trial. Rather, Blauvelt
argues that because Juror #1 mentioned his jury service in a
federal child pornography case, the exchange became some-
thing other than an "innocuous intervention[ ]." Id. (internal
quotation marks omitted). We disagree. The subject of the
exchange between Leotta and Juror #1 related to accounting
services rendered to the Murnaghan Fellowship, not Blau-
velt’s trial. The fact that Juror #1 made reference to his jury
service did not transform the nature of the exchange. Whether
Juror #1’s return email revealed any untoward bias is a sepa-
rate issue analytically from the question addressed by a Rem-
mer analysis—whether the defendant’s right to an impartial
jury was compromised by "an extraneous communication
upon the deliberative process of the jury." Stockton v. Com-
monwealth of Va., 852 F.2d 740, 744 (4th Cir. 1988). We con-
clude that the communication at issue here was inadvertent
and innocuous and that Blauvelt has failed to present evidence
that the communication was prejudicial.

Finally, Blauvelt challenges the district court’s conclusion
that Juror #1 was not actually biased. See Fitzgerald v.
Greene, 150 F.3d 357, 364 (4th Cir. 1998) (discussing "a gen-
eral Sixth Amendment claim of juror bias" as opposed to a
juror bias claim that alleged dishonesty during voir dire).
Blauvelt argues that Juror #1’s bias is readily apparent from
the text of his email. The district court, however, found after
24 UNITED STATES v. BLAUVELT
observing Juror #1’s testimony that the juror was simply
expressing his "admiration for all the trial partici-
pants—including Blauvelt’s counsel," that "he did not know
that Leotta was a federal prosecutor," and that "he had no pre-
conceived notions about the case before it started, or when he
responded to Leotta’s email." J.A. 1410o. Because this find-
ing is reasonable given the evidence, we refuse to disturb it.
Accordingly, we reject Blauvelt’s argument that he was enti-
tled to a new trial as a result of outside communications and
juror bias.

III.

For the foregoing reasons, Blauvelt’s convictions and
resulting sentence are affirmed.

AFFIRMED