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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-11684
Non-Argument Calendar
________________________
D.C. Docket No. 0:12-cr-60016-KMW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES E. PRICE, III,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(November 14, 2014)
Before ED CARNES, Chief Judge, WILSON and MARTIN, Circuit Judges.
PER CURIAM:
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James E. Price, III, was convicted by a jury of knowing distribution of child
pornography, in violation of 18 U.S.C. §§ 2252(a)(2) and 2252(b)(1), and knowing
possession of child pornography, in violation of 18 U.S.C. §§ 2252(a)(4)(B) and
2252(b)(2). He challenges three of the district court’s rulings and contends that the
evidence was insufficient to prove the knowledge element for both convictions.
I.
Law enforcement officers routinely search peer-to-peer file-sharing
networks on the internet for computers sharing child pornography files. 1 On
December 20, 2010, Detective Brian Broughton of the Martin County, Florida
Sheriff’s Office was searching one such network when he noticed a user sharing
179 files with titles describing children performing sex acts or being raped.
Broughton tried to download some of those files but was unsuccessful. Ten days
later, Broughton noticed that the same IP address was again sharing approximately
the same number of suspiciously titled files. He successfully downloaded four
image files from the user’s computer and determined that they did indeed depict
child pornography.
Broughton then subpoenaed AT&T, the internet service provider, and
requested the name of the subscriber to the IP address. That subscriber was
1
We recount the facts in the light most favorable to the verdict as the standard of review
for sufficiency of the evidence requires. See United States v. Beckles, 565 F.3d 832, 840 (11th
Cir. 2009).
2
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Andrea Plant, and she lived in Plantation, Florida. Because Plantation, Florida, is
in Broward County, outside of Broughton’s jurisdiction, Broughton forwarded his
investigation file to Detective Robert Mauro, a special deputy of the Broward
County Sheriff’s Office. On three separate occasions in January 2011, Mauro
downloaded suspiciously titled files from the same user and determined that they
depicted child pornography. That month, Mauro also began to conduct periodic
surveillance of the Plantation residence, during which he determined that Price
lived there with Plant.
On February 15, 2011, Mauro submitted a sixteen-page affidavit in support
of a search warrant for the Plantation residence. In that affidavit, Mauro stated that
he and Broughton had each downloaded child pornography files from the same
user. Mauro also described how Broughton had traced the user’s IP address to the
Plantation residence, and how Mauro had determined that Price lived there.
Finally, Mauro stated that, in February 2000, Price had been suspected of
downloading child pornography onto the hard drive of his computer at work, and
that, although the FBI had requested a forensic examination of Price’s computer,
“the results [of the FBI’s investigation were] not available at [that] time.” Based
on that affidavit, a magistrate judge issued the search warrant.
The next day, Mauro and other police officers executed the search warrant.
From the living room, the officers seized a desktop computer and a large external
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hard drive that was tucked behind the desktop’s monitor and connected to the
computer by cable. From the bedroom, the officers seized a leather bag containing
a laptop and a small external hard drive, as well as a Brooks Brothers card and a
frequent flyer card in Price’s name. The officers also seized a BlackBerry cell
phone that belonged to Price.
Tina McCoy, a computer forensics technician with the Broward County
Sheriff’s Office, later conducted a forensic examination of the seized items. On
the large external hard drive, which was encrypted using a strong password,
McCoy found 216 child pornography video and image files, including the files that
Mauro and Broughton had discovered during their investigations. McCoy also
found that a number of child pornography videos had been stored on the small
external hard drive. Although those files had been deleted, McCoy successfully
restored the videos to the hard drive and verified that they depicted child
pornography. As for the desktop, McCoy did not find child pornography files
stored on its internal hard drive. She did find, however, that both Price’s user
account and the desktop’s testing profile user account had played several of the
child pornography videos stored on the large external hard drive, including one
entitled “new PTHC [pre-teen hard core] 2007 Tara eleven year mass toy anal
fuck.” Notably, both accounts were protected with strong passwords. The laptop,
which Price used for his work as a computer consultant, had no child pornography
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stored on it, either. However, both Price’s user account and the laptop’s testing
profile user account — which were just as strongly password-protected as their
counterparts on the desktop — had accessed and played several of the child
pornography videos stored on the large and small external hard drives.
McCoy also found Shareaza, a file-sharing software client, installed on both
the desktop and the laptop. With Shareaza, a user can search a number of file-
sharing networks at once for a particular file and download portions of that file
from multiple computers, thus speeding up the download process. On the desktop,
Shareaza directed downloads to the large external hard drive, and the Shareaza
library listed the child pornography video and image files found on that hard drive.
The video and image files had been designated for sharing. On the laptop,
Shareaza directed downloads to another external hard drive, which police did not
recover. McCoy could tell, however, that the user had entered search terms
suggestive of child pornography, such as “hussy fan,” “PTHC,” and “Raygold”
(referring to files collected by an infamous distributor of child pornography). The
Shareaza library listed videos and images with similarly suggestive titles.
After McCoy concluded her investigation, Jeanne Burtnett, also a computer
forensics technician with the Broward County Sheriff’s Office, created timelines
based on information McCoy had obtained. The purpose of Burtnett’s timelines
was to show that Price — and no one else — had used the computers to download
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and play child pornography files. One timeline, for example, showed all of the
desktop’s activity for approximately one hour in the early morning of February 7,
2011. In that short span of time, Price’s user account visited LinkedIn and other
business-related websites, visited FedEx’s package-tracking website, downloaded
and played child pornography videos, and accessed a file on the large external hard
drive. Subpoenaed FedEx records showed that Price had signed for a package that
day.
On January 26, 2012, a federal grand jury indicted Price with knowing
distribution of child pornography in violation of 18 U.S.C. §§ 2252(a)(2) and
2252(b)(1), and knowing possession of child pornography in violation of 18 U.S.C.
§§ 2252(a)(4)(B) and 2252(b)(2). Before trial, Price moved to produce or disclose
with restrictions the grand jury proceedings in their entirety. He sought that
information because he believed that the grand jury had indicted him based on
misleading information about the FBI’s previous investigation into his child
pornography related activity. The crux of Price’s claim was that, in Mauro’s
search warrant affidavit, Mauro had stated that the results of the FBI’s
investigation were not available when, in fact, the FBI had dropped the
investigation due to a lack of evidence. Price contended that the prosecution had
similarly told the grand jury about the FBI’s investigation without disclosing that
the investigation had been dropped. The district court denied Price’s motion,
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finding that Price had not shown (1) that his need for disclosure outweighed the
need for secrecy in grand jury proceedings, and (2) that his request for “the totality
of the grand jury materials” was limited to the material he needed.
Price also filed a pretrial motion to suppress all of the computer and digital
evidence that was seized during the search of his residence. He argued, among
other things, that the magistrate judge who issued the search warrant relied on the
affidavit’s misleading statement about the 2000 FBI investigation and that, had the
magistrate judge been accurately informed, he might have concluded that there was
no probable cause to search Price’s home. Price requested an evidentiary hearing
pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674 (1978), to determine
whether there would have been probable cause for the warrant without that
misleading statement. But the district court denied that motion as well. The court
reasoned that the information in the warrant affidavit was sufficient to establish
probable cause even without any mention of the 2000 FBI investigation. Finally,
Price filed a motion in limine to exclude any evidence related to the earlier FBI
investigation. He contended that the information was inadmissible under Federal
Rule of Evidence 404(b) because there was insufficient evidence to prove that he
had done anything and the information’s probative value was substantially
outweighed by a danger of unfair prejudice. The district court denied the motion,
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ruling that the evidence would come in if Price testified or if he opened the door to
the issue during cross-examination of McCoy.
The case proceeded to trial. Broughton, Mauro, McCoy, and Burtnett
testified for the government. At the close of the government’s case, Price moved
for a judgment of acquittal on the ground that the evidence presented was
insufficient to convict him. The district court denied the motion. Price did not put
on a defense, and he affirmed, under oath, that he decided not to testify due to the
court’s ruling on his motion in limine. The jury convicted him on both counts.
This is Price’s appeal.
Price contends that the district court erred in denying his motion that sought
production or at least restricted disclosure of the grand jury proceedings. He also
challenges the district court’s denial of his request for a Franks hearing and its
ruling on his motion in limine. Finally, Price contends that the evidence was
insufficient to prove the knowledge element contained in both counts.
II.
Price first challenges the district court’s denial of his motion for production
or restricted disclosure of the grand jury proceedings. We review for an abuse of
discretion a district court’s order denying disclosure of grand jury proceedings.
See United States v. Aisenberg, 358 F.3d 1327, 1338 (11th Cir. 2004); United
States v. Elliot, 849 F.2d 554, 557 (11th Cir. 1988). “A district court abuses its
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discretion if it applies an incorrect legal standard, applies the law in an
unreasonable or incorrect manner, follows improper procedures in making a
determination, or makes findings of fact that are clearly erroneous, . . . and also
when it misconstrues its proper role, ignores or misunderstands the relevant
evidence, and bases its decision upon considerations having little factual support.”
FTC v. AbbVie Prods. LLC, 713 F.3d 54, 61 (11th Cir. 2013) (citation and
quotation marks omitted).
“It has long been a policy of the law that grand jury proceedings be kept
secret.” Blalock v. United States, 844 F.2d 1546, 1555 (11th Cir. 1988).
Codifying that traditional rule of grand jury secrecy, Federal Rule of Criminal
Procedure 6(e) prohibits the disclosure of grand jury materials except in certain
enumerated circumstances. One such circumstance is “at the request of a
defendant who shows that a ground may exist to dismiss the indictment because of
a matter that occurred before the grand jury.” Fed. R. Crim. P. 6(e)(3)(E)(ii).
As the party requesting disclosure, the defendant must make three showings:
first, “that the material [he] seek[s] is needed to avoid a possible injustice in
another judicial proceeding”; second, “that the need for disclosure is greater than
the need for continued secrecy”; and finally, “that [his] request is structured to
cover only material so needed.” Douglas Oil Co. of Cal. v. Petrol Stops Nw., 441
U.S. 211, 218 n.9, 99 S.Ct. 1667, 1672 n.9 (1979); see Aisenberg, 358 F.3d at
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1347–48. To satisfy the second requirement, the defendant “must show a
compelling and particularized need for disclosure.” Aisenberg, 358 F.3d at 1348
(collecting cases). That is, the defendant must show that “certain difficulties
peculiar to [his] case . . . could be alleviated by access to specific grand jury
materials . . . without doing disproportionate harm to the salutary purpose of
secrecy embodied in the grand jury process.” Id. at 1348–49 (quotation marks
omitted). “[A] general allegation that grand jury materials are necessary for the
preparation of a motion to dismiss” the indictment does not satisfy the
“particularized need” standard. United States v. Burke, 856 F.2d 1492, 1496 (11th
Cir. 1988). Nor do “unsubstantiated allegations of grand jury manipulation.”
United States v. Cole, 755 F.2d 748, 759 (11th Cir. 1985).
The district court did not clearly err by finding that Price failed to
demonstrate a “particularized need” for the grand jury materials. In support of his
request, Price presented no evidence that the grand jury received any information
(misleading or otherwise) about the 2000 FBI investigation. To the contrary,
according to the Assistant United States Attorney who prosecuted Price’s case, the
transcripts of the grand jury proceedings did not mention that investigation. In
short (and as Price himself conceded in his motion), Price sought disclosure of the
grand jury proceedings in their entirety with the hope of finding testimony to
support his unsubstantiated allegations of grand jury manipulation. Rule 6(e) does
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not permit a fishing expedition at the expense of grand jury secrecy. Thus, the
district court did not abuse its discretion in denying Price’s request for disclosure
of the grand jury proceedings.
III.
Next, Price challenges the district court’s denial of his request for a Franks
hearing. We generally review for an abuse of discretion a district court’s denial of
an evidentiary hearing, United States v. Arbolaez, 450 F.3d 1283, 1293 (11th Cir.
2006), and we have stated that “abuse of discretion review is appropriate” for
denial of a Franks hearing. United States v. Barsoum, 763 F.3d 1321, 1328 (11th
Cir. 2014). We review only for clear error any factual findings the district court
made in deciding whether to hold a Franks hearing. See United States v. Reid, 69
F.3d 1109, 1113 (11th Cir. 1995); United States v. Morales, 889 F.2d 1058, 1059
(11th Cir. 1989) (per curiam).
Affidavits supporting arrest warrants are presumptively valid. Franks, 438
U.S. at 171, 98 S.Ct. at 2684. Thus, a defendant is generally not entitled to an
evidentiary hearing on a motion to suppress based on alleged misrepresentations or
omissions in a search warrant affidavit. A defendant has the constitutional right to
such a hearing — a Franks hearing — only where he “makes a substantial
preliminary showing” that (1) the affiant deliberately included a false statement in
the affidavit or deliberately omitted material information, or made the false
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statement or omission with reckless disregard for the truth; and (2) the false
statement or omission altered the probable cause showing. Franks, 438 U.S. at
155–56, 98 S.Ct. at 2676; see Barsoum, 763 F.3d at 1329; United States v.
Kapordelis, 569 F.3d 1291, 1309–10 (11th Cir. 2009).
In the district court, Price argued that Mauro showed reckless disregard for
the truth when he stated in the search warrant affidavit that the results of the 2000
FBI investigation were not available. Price contended that, before Mauro could
mention the investigation in the first place, he had a duty to learn how the
investigation actually played out. Price requested a Franks hearing in order to
cross-examine Mauro “about the gap in the information [that Mauro presented to
the magistrate judge] and the apparent reckless disregard for the truth,” but the
district court denied his request. Price challenges the district court’s “failure to
allow a full hearing on the matter.”
Price misunderstands Franks. Under that decision, a defendant must make
“a substantial preliminary showing” that the affiant deliberately included a false
statement in the affidavit or deliberately omitted material information. Franks, 438
U.S. at 155–56, 98 S.Ct. at 2676 (emphasis added). The allegations of deliberate
falsehood or of reckless disregard for the truth “must be more than conclusory and
must be supported by more than a mere desire to cross-examine.” Id. at 171, 98
S.Ct. at 2684. The district court fully addressed Price’s allegations of reckless
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falsity or omission and found them unpersuasive. That finding was not clearly
erroneous. And in any event, Price is not able to show that probable cause would
not exist if the statement he identifies as false were stricken. The district court did
not abuse its discretion in denying Price’s request for a Franks hearing.
IV.
Price’s next contention concerns the district court’s ruling on his motion in
limine. Before trial, Price filed a motion in limine to exclude any evidence related
to the 2000 FBI investigation, arguing that such evidence was inadmissible under
Federal Rules of Evidence 404(b) and 403. The district court denied Price’s
motion, ruling that the evidence would come in if Price testified or if he opened the
door to the issue during cross-examination of McCoy. The district court reasoned
that Price’s defense theory at trial was likely to be the same theory he had argued
in 2000: that an unknown person placed the images on his hard drive. According
to the district court, evidence related to the 2000 FBI investigation thus tended to
disprove “the stunningly unlikely possibility that twice in his adult lifetime [Price]
finds himself at the mercy of unscrupulous ‘others’ who used his computer for the
very same thing he is in court for here today.”
At the close of the government’s case, Price’s counsel advised the district
court that Price did not wish to present a case. Under oath, Price stated that he had
decided not to testify solely because of the district court’s adverse ruling on his
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motion in limine. He now argues that the district court erred in denying his motion
in limine because the evidence related to the 2000 FBI investigation was
inadmissible under Federal Rules of Evidence 404(b) and 403. He also argues that
the court’s ruling forced him to surrender his constitutional right to testify on his
own behalf.
We considered — and rejected — the same arguments in United States v.
Hall, 312 F.3d 1250 (11th Cir. 2002). In that case the district court made a pretrial
ruling that if the defendant asserted “lack of intent” as a defense in his trial
involving distribution and receipt of child pornography, the government could
introduce evidence of the defendant’s child molestation conduct under Rule
404(b). Id. at 1253–54. The defendant chose not to testify, and the government
did not introduce the molestation evidence. Id. at 1254. The defendant argued that
the district court’s pretrial ruling was erroneous and had forced him to surrender
several constitutional rights, including the right to testify on his own behalf. Id. at
1255 & n.4. We held that the district court’s pretrial decision about the Rule
404(b) evidence was not reviewable on appeal, reasoning that, because the
evidence never came in, we could only speculate as to the possible harm the
district court’s in limine ruling might have caused. (Or, for that matter, the
possible good, as we also noted that the defendant’s decision not to testify
“obtained the trial advantage of limiting the government’s evidence on the intent
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issue.”) Id. at 1255–58; see United States v. Luce, 469 U.S. 38, 39–43, 105 S.Ct.
460, 462–64 (1984).
In that same case we also rejected the defendant’s attempt to couch his claim
as a constitutional one. Hall, 312 F.3d at 1258 n.9. In doing so we distinguished
two cases, Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891 (1972), and New
Jersey v. Portash, 440 U.S. 450, 99 S.Ct. 1292 (1979), where the defendants had
chosen not to testify due to the trial courts’ adverse rulings on constitutional
questions, but they had successfully preserved their constitutional claims
nonetheless. Hall, 312 F.3d at 1258 n.9; see Luce, 469 U.S. at 42–43, 105 S.Ct. at
464. In Brooks, the trial court had considered the constitutional validity of a
Tennessee statute that required the defendant to testify at the start of the defense
case if he wished to testify at all; in Portash, the trial court had ruled that the
constitution did not bar the use of a defendant’s immunized grand jury testimony
for impeachment purposes. In contrast, the defendant in Hall claimed that he chose
not to testify due to the district court’s adverse ruling on an evidentiary question.
That is why we held in Hall that by failing to testify the defendant had failed to
preserve his evidentiary admissibility claim. Under Hall, Price’s challenge to the
district court’s ruling on his motion in limine is not reviewable on appeal. Because
the adverse evidence never came in, we have nothing to review.
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V.
Finally, Price contends that the government failed to satisfy its burden to
prove the knowledge element for both of his convictions. We review de novo
whether sufficient evidence supports a conviction, drawing all reasonable factual
inferences from the evidence in favor of the verdict. United States v. Beckles, 565
F.3d 832, 840 (11th Cir. 2009). Evidence is sufficient to support a conviction if a
reasonable trier of fact could find that it established guilt beyond a reasonable
doubt. “[I]t is not necessary that the evidence exclude every reasonable hypothesis
of innocence or be wholly inconsistent with every conclusion except that of guilt.”
United States v. Vera, 701 F.2d 1349, 1357 (11th Cir. 1983) (quotation marks
omitted).
Under 18 U.S.C. § 2252(a)(2) it is a crime to knowingly distribute material
containing a depiction of a minor engaging in sexually explicit conduct, and under
18 U.S.C. § 2252(a)(4)(B) it is a crime to knowingly possess material containing a
depiction of a minor engaging in sexually explicit conduct. The word “knowingly”
in section 2252 applies both to the relevant action, such as distribution and
possession, and to the nature of the material in question. See United States v. X–
Citement Video, Inc., 513 U.S. 64, 68–69, 78, 115 S.Ct. 464, 467, 472 (1994);
United States v. Alfaro–Moncada, 607 F.3d 720, 733 (11th Cir. 2010).
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Sufficient evidence supported the jury’s conclusion that Price had the
requisite mens rea to commit the distribution and possession offenses. As for
distribution, the government had to prove that Price knowingly made child
pornography files accessible to others. See United States v. Spriggs, 666 F.3d
1284, 1287 (11th Cir. 2012). The evidence showed that Shareaza was installed on
both Price’s desktop and laptop, and specifically on Price’s user account and the
testing profile user account on each computer. The evidence also showed that all
four accounts were protected with strong passwords and that Price, who worked as
a computer consultant, was well versed in information technology. Broughton
testified that a Shareaza user must designate files for sharing, and can set the
application such that it will automatically start running, and sharing files, once the
user’s computer is turned on. McCoy testified that child pornography files had
been designated for sharing on the Shareaza library, and that she had to start
Shareaza manually. From that evidence, a reasonable jury could have concluded
that Price installed Shareaza on his computers, designated child pornography files
for sharing, and understood that Shareaza enabled other users to access those files
once he manually started the program. Thus, the evidence was sufficient to
support Price’s conviction for knowing distribution of child pornography.
As for possession, the evidence showed that the large external hard drive
seized from Price’s living room was encrypted using a strong password and
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contained hundreds of child pornography files. Price’s user and testing profile user
accounts on both the desktop and the laptop had played several of those files. The
evidence also showed that Shareaza was installed on both Price’s desktop and
laptop, and that it had been used to search for and download files with names
suggestive of child pornography. Broughton testified that a user entering those
search terms must know that he is likely to find child pornography; even a user
looking for adult pornography is unlikely to stumble upon child pornography
accidentally. Finally, Burtnett, who created timelines for the jury based on
information McCoy had obtained from Price’s devices, testified that on three
separate occasions, Price was using a computer for business purposes within
minutes of when that computer accessed files with names suggestive of child
pornography. From that evidence, a reasonable jury could have concluded that
Price, using his password-protected accounts, searched for, downloaded, and
viewed files containing child pornography. Thus, the evidence was sufficient to
support Price’s conviction for knowing possession of child pornography.
Because the district court did not err in denying Price’s requests for
disclosure of the grand jury transcripts and for a Franks hearing; because his
challenge to the district court’s in limine ruling is unreviewable on appeal; and
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because there was sufficient evidence to support his convictions, Price’s
convictions are AFFIRMED. 2
2
Price’s “motion to dismiss counsel and proceed pro se” is DENIED.
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