UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4035
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CHRISTOPHER MYERS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, Senior District Judge.
(8:11-cr-00614-RWT-1)
Submitted: January 31, 2014 Decided: March 10, 2014
Before MOTZ, SHEDD, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Joanna Silver, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellant.
Rod J. Rosenstein, United States Attorney, LisaMarie Freitas,
Special Assistant United States Attorney, Kristi O’Malley,
Assistant United States Attorney, Greenbelt, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher Myers was charged in a three-count
superseding indictment with knowingly receiving child
pornography, in violation of 18 U.S.C. § 2252A(a)(2) (2012),
knowingly transporting child pornography, in violation of 18
U.S.C. § 2252A(a)(1) (2012), and knowingly possessing child
pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) (2012).
A jury convicted Myers on all counts, and he received sixty-
month concurrent sentences on each. On appeal, he argues that
the evidence was insufficient to prove the he knowingly received
child pornography. He also contests the district court’s
evidentiary ruling excluding the expert witness for which he
gave notice on the first day of trial. Finding no error, we
affirm.
Myers was identified as part of an investigation into
the sale of child pornography via internet websites. The
count that Myers challenges states that, on or about October 22,
2006, through on or about November 20, 2006, Myers knowingly
received child pornography and material that contained child
pornography as defined by 18 U.S.C. § 2256(8) (2012). This time
period coincides with a month-long membership that Myers
purchased to a child pornography website called Sick Child Room.
In 2007, after his subscription to Sick Child Room had ended,
Myers purchased a new laptop computer, which authorities seized
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in 2010. Myers does not dispute that the relevant visual images
found on the computer constitute child pornography. And, the
parties stipulated that the images depict real, identified
victims, and were produced outside the State of Maryland.
Therefore, the only element Myers has contested at trial and on
appeal is whether he knowingly received child pornography
between October 22, 2006, and November 20, 2006.
Myers argues that the Government relies on the
“extreme attenuation between the images available for Myers to
access in 2006 and the images found on his new computer in 2010”
and contends that the Government does not have any other
evidence that Myers received pornography during that period. In
sum, Myers argues that the evidence is all circumstantial and is
insufficient to support knowing receipt of images from Sick
Child Room in 2006.
There is no question that Myers “received” child
pornography; the question is “whether that receipt was knowing.”
United States v. Winkler, 639 F.3d 692, 699 (5th Cir. 2011).
See also United States v. Whorley, 550 F.3d 326, 334 (4th Cir.
2008) (observing that there was “no . . . question” that a
defendant “received” child pornography where the defendant
“actively used a computer to solicit obscene material through
numerous and repetitive searches and ultimately succeeded in
obtaining the materials he sought”); United States v. Osborne,
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935 F.2d 32, 34 n.2 (4th Cir. 1991) (observing that a defendant
had received child pornography where he “achieved the power to
exercise dominion and control over them”).
Because 18 U.S.C. § 2252A does not criminalize
inadvertent receipt or possession of illicit materials, the
Government must present proof of at least circumstantial
evidence of the requisite knowledge. See United States v.
Ramos, 685 F.3d 120, 131 (2d Cir.), cert. denied, 133 S. Ct. 567
(2012) (collecting cases); Winkler, 639 F.3d at 696-99 (same).
Thus, courts have reasoned that the mere presence of illicit
materials in a computer’s temporary internet cache, standing
alone, is insufficient to establish knowing receipt, given that
the files could have been saved there without the user’s
knowledge. See, e.g., United States v. Flyer, 633 F.3d 911, 919
(9th Cir. 2011); United States v. Dobbs, 629 F.3d 1199, 1201
(10th Cir. 2011). By contrast, a defendant’s attempts to delete
a computer’s temporary internet files and browsing history are
circumstantial evidence supporting knowing receipt of child
pornography, given that a defendant’s scrubbing of the evidence
indicates some degree of prior awareness that images viewed
online would be saved to his computer. See, e.g., Ramos, 685
F.3d at 132; United States v. Bass, 411 F.3d 1198, 1207 (10th
Cir. 2005). Some courts have also suggested that, where a
defendant repeatedly sought out child pornography, his conduct
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may serve as circumstantial evidence that he knowingly received
it, regardless of the fact that his computer contains such
images only in its temporary internet cache or in unallocated
spaces. See, e.g., United States v. Pruitt, 638 F.3d 763, 766
(11th Cir. 2011).
Whether a defendant knew that files viewed online
would be saved to his computer is a close question only where
there is some indication that the images were saved there
without his knowledge. If, for example, the evidence shows only
that the images were saved to the computer’s cache or temporary
internet folders and that the defendant made no effort to remove
them, or that the images were otherwise saved automatically to
locations inaccessible to a computer user, there may be some
reason to believe that the defendant did not “knowingly” receive
the images.
We conclude that, here, this issue is not close. The
core of Myers’ defense was that the Government only presented
circumstantial evidence that Myers knowingly received the files.
He argues it is unreasonable to believe that he would have
uploaded images to transfer them to a new computer only to later
delete most of them. But the facts adduced at trial render this
defense unavailing.
As for circumstantial evidence of Myers’ knowledge,
investigators discovered a plethora of child pornography on
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Myers’ computer, thus establishing that it was not by mistake or
error that the files were downloaded. See Ramos, 685 F.3d at
132 (holding that defendant had knowingly received child
pornography where he had viewed 140 images of child pornography
and had admitted to law enforcement that they would probably
find child pornography on his computer); Pruitt, 638 F.3d at 767
(holding that defendant had knowingly received child pornography
where he had repeatedly searched online for child pornography,
despite the fact that all of the images were located only in his
computer’s temporary internet cache and unallocated space).
The jury learned that Myers created an innocuous
folder name of “SATCOM,” a title related to his profession, to
store most of his directory of child pornography, clearly
indicating that he knew illegal images would be saved to his
hard drive. Myers also created desktop shortcuts to his file-
share programs’ saved/shared folders. The Fifth Circuit has
observed that a defendant’s downloading of “dozens” of child
pornography images, stashing the files in unusual or
password-protected locations on his hard drive, and creating a
file containing links to child pornography websites indicate “a
pattern of child pornography receipt” suggesting that the
defendant also knowingly downloaded the particular files upon
which the receipt count was based. Winkler, 639 F.3d at 699.
The same principle applies here.
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Finally, the computer forensic examiner who conducted
the investigation and search of Myers’ computer found over a
thousand files that were identical to child pornography images
available to members of the Sick Child Room website at the time
that Myers had access to it. While Myers argues that these
images were also available in file sharing programs and that he
did not necessarily download them himself, he ignores the
evidence found by the forensic examiner that the same files on
Myers’ computer had information consistent with their being
uploaded to his computer from an external device. We thus
conclude that the evidence was sufficient to find that Myers
knowingly received child pornography during the relevant time
period.
Next, Myers contests the district court’s evidentiary
ruling excluding the defense’s expert witness, an optometrist,
who would have opined on Myers’ condition of ocular albinism.
On the first day of trial, defense counsel gave notice to the
Government of Myers’ intent to call the optometrist as an expert
witness. Myers argued that his impairment made it less likely
that he would commit a visual offense, such as the possession
and distribution of pornography. He also argued that the jury’s
observations of his appearance and actions during trial (such as
involuntary eye movements and use of a monocular vision aid)
would be confusing and prejudicial without testimony to explain
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his condition to the jury. The Government responded that
because the proposed testimony involved a medical expert, Myers
was required to give notice prior to trial so that the
Government could have time to obtain its own expert and prepare
for cross-examination. The district court did not permit the
optometrist to testify, concluding that allowing the expert
testimony would prejudice the Government. The court, however,
permitted other defense witnesses, including Myers’ mother, to
testify regarding their personal knowledge of Myers’ limited
vision and use of a monocular for vision correction.
We review a district court’s ruling to exclude an
expert witness based on the timeliness of notice for an abuse of
discretion. See United States v. Holmes, 670 F.3d 586, 598 (4th
Cir.), cert. denied, 133 S. Ct. 426 (2012) (noting that, because
Fed. R. Crim. P. 16 is silent as to the timing of expert witness
disclosures, the appellate court reviews the district court’s
timeliness determination for abuse of discretion).
Federal Rule of Criminal Procedure 16(b)(1) sets forth
a defendant’s duty to disclose information to the Government.
Under Rule 16(b)(1)(C), which deals with expert witnesses, “the
defendant must, at the government’s request, give to the
government a written summary of any testimony that the defendant
intends to use under Rules 702, 703, or 705 of the Federal Rules
of Evidence as evidence at trial, if—(i) the defendant requests
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disclosure under subdivision (a)(1)(G) and the government
complies; or (ii) the defendant has given notice under Rule
12.2(b) of an intent to present expert testimony on the
defendant’s mental condition.” Under Fed. R. Crim. P.
16(d)(2)(C), “[i]f a party fails to comply with this rule, the
court may prohibit that party from introducing the undisclosed
evidence.” “In addition to this specific authority, district
courts are to exercise their sound discretion in all rulings
related to the admission and exclusion of evidence, and this
Court will not reverse the decision to exclude such evidence
absent abuse of that discretion.” Holmes, 670 F.3d at 598
(citing United States v. Stitt, 250 F.3d 878, 896 (4th Cir.
2001)).
The Government sought to exclude Myers’ expert because
of its inability to prepare a timely response to the expert’s
testimony; the insufficiency of the notice under Rule 16; and
prejudice to its case (based on its inability to prepare).
Myers asserts that the Government was on notice that the defense
might call an expert witness because the defense relied on
Myers’ ocular albinism in challenging the admission of the
seized computer, arguing that he could not read the written
consent provided to him.
“[T]he case law is clear that it is not an abuse of
discretion for a trial court to disallow expert testimony where
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a late proffer of evidence by the defense substantially
prejudices the government in its ability to find its own expert
and conduct similar testing.” United States v. Dorsey, 45 F.3d
809, 816 (4th Cir. 1995). In United States v. Curry, 977 F.2d
1042, 1052 (7th Cir. 1992), the Seventh Circuit held that the
district court did not err in excluding expert testimony
regarding the reliability of eyewitness identifications,
because, among other things, the defendants gave the government
only four days’ notice of their intent to call their witnesses.
Similarly, we hold that the district court did not
abuse its discretion in excluding Myers’ expert witness. See
United States v. Johnson, 617 F.3d 286, 292 (4th Cir. 2010) (“A
court has abused its discretion if its decision ‘is guided by
erroneous legal principles’ or ‘rests upon a clearly erroneous
factual finding.’” (quoting Brown v. Nucor Corp., 576 F.3d 149,
161 (4th Cir. 2009))) (internal quotation marks omitted).
We therefore affirm the judgment. 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
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