United States v. Robert Fenn

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4490

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

ROBERT FENN,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:12-cr-00510-JCC-1)

Submitted: December 20, 2013 Decided: February 4, 2014

Before KING, GREGORY, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

James W. Hundley, BRIGLIA HUNDLEY NUTTALL & LOPEZ, P.C., Vienna,
Virginia, for Appellant. Dana J. Boente, Acting United States
Attorney, Alicia J. Yass, Special Assistant United States
Attorney, Lindsay A. Kelly, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

After a two-day jury trial, Robert Fenn (“Appellant”)

was convicted of one count each of receipt of child pornography

and possession of child pornography and was sentenced to 120

months imprisonment on each count, to run concurrently. He

appeals, raising three contentions: (1) the district court

should have granted his motion to suppress certain statements

because they were given during an improper custodial

interrogation, in violation of Miranda v. Arizona, 384 U.S. 436

(1966); (2) during trial, the district court erroneously

admitted evidence of legal Hentai (sexual cartoon) images that

were found on Appellant’s computer, in violation of Federal

Rules of Evidence 403 and 404(b); and (3) the evidence presented

at trial was insufficient to convict Appellant. Finding no

error, we affirm.

We have reviewed the district court’s order denying

Appellant’s motion to suppress, and we find no reversible error.

Thus, we affirm for the reasons stated by the district court in

its memorandum opinion of January 22, 2013. See United States

v. Fenn, No. 1:12-cr-00510-JCC-1, ECF No. 17 (E.D. Va., filed

Jan. 22, 2013).

2
II.

As to whether the district court improperly admitted

Hentai images stored on Appellant’s computer, we likewise

affirm. Appellant argues these images were improperly admitted

under Federal Rules of Evidence 404(b) and 403. We review for

abuse of discretion and note, “[d]istrict courts generally enjoy

broad discretion in ruling on the admissibility of evidence.”

United States v. Leeson, 453 F.3d 631, 636 (4th Cir. 2006);

United States v. Woods, 710 F.3d 195, 200 (4th Cir. 2013).

Rule 404(b) provides, “Evidence of a crime, wrong, or

other act is not admissible to prove a person’s character in

order to show that on a particular occasion the person acted in

accordance with the character.” Fed. R. Evid. 404(b)(1).

However, such evidence “may be admissible for another purpose,

such as proving motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident.”

Id. 404(b)(2).

Having reviewed the transcript, it is clear the images

were properly admitted as evidence for purposes other than

showing Appellant’s general character. They were admitted in

accordance with this court’s decision in United States v. Queen,

132 F.3d 991, 997 (4th Cir. 1997) (explaining that evidence of

prior acts must be (1) relevant and not offered to establish

general character, (2) probative of an essential claim or

3
element of the offense, (3) reliable, and (4) the probative

value must not be substantially outweighed by unfair prejudice).

Further, the ruling was not in contravention of Rule 403. See

United States v. Benkahla, 530 F.3d 300, 310 (4th Cir. 2008).

The court also gave limiting instructions as to the purpose of

the images, explaining that they were legal, and they did not

show “that at another time the defendant performed a similar act

or committed a similar offense, including the offense charged in

the indictment.” J.A. 303. * We thus find no merit in

Appellant’s argument on this point.

III.

Appellant’s final contention on appeal is that the

evidence at trial was insufficient to support the guilty verdict

against him; rather, he argues that there was substantial

evidence that Appellant’s brother and father, both of whom lived

with Appellant, received and possessed the pornography at issue.

In entertaining such an argument, we “construe the evidence in

the light most favorable to the government, assuming its

credibility, and drawing all favorable inferences from it, and

will sustain the jury’s verdict if any rational trier of fact

could have found the essential elements of the crime charged

*
The “J.A.” is the Joint Appendix filed by the parties in
this appeal.

4
beyond a reasonable doubt.” United States v. Penniegraft, 641

F.3d 566, 571 (4th Cir. 2011) (emphasis in original).

Appellant’s final contention fails. Considering the evidence

presented at trial, a rational trier of fact could have found

Appellant guilty beyond a reasonable doubt.

IV.

For the foregoing reasons, the district court’s order

denying Appellant’s motion to suppress and the judgment after

trial are affirmed. We dispense with oral argument because the

facts and legal contentions are adequately presented in the

materials before this court and argument would not aid the

decisional process.

AFFIRMED