FILED
NOT FOR PUBLICATION FEB 11 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50108
Plaintiff - Appellee, D.C. No. 2:12-cr-00384-ODW-1
v.
MEMORANDUM*
CHARLES STANLEY KOWALESKI, III,
aka Charles S. Kowaleski,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding
Argued and Submitted February 6, 2015
Pasadena California
Before: KLEINFELD and GOULD, Circuit Judges, and GETTLEMAN, Senior
District Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Robert W. Gettleman, Senior District Judge for the
U.S. District Court for the Northern District of Illinois, sitting by designation.
Charles Stanley Kowaleski appeals his conviction and sentence for receipt of
child pornography and possession of child pornography. We have jurisdiction
under 28 U.S.C. § 1291. We affirm.
1. The district court did not abuse its discretion in admitting the images and
video clips despite Kowaleski’s challenge under Federal Rule of Evidence 403.
First, despite Kowaleski’s offered stipulations, including the stipulation that a
reasonable person looking at the images even momentarily would know that the
images were child pornography, the images and video files shown at trial were
relevant to proving Kowaleski’s knowledge of the files, and that he acted
“knowingly,” and to undercutting Kowaleski’s asserted theory that a roommate had
used Kowaleski’s computer to download and store the files. Also, the district
court’s careful voir dire and cautionary instruction to the jury, combined with the
fact that the images and video were only shown once and only three images and
five video clips totaling less than a minute were shown, minimizes any prejudice.
See United States v. Ganoe, 538 F.3d 1117,1120, 1123–24 (9th Cir. 2008)
(rejecting an appeal involving similar offered stipulations where images and video
were relevant to negate the defendant’s theory that he had downloaded them
without knowing they were child pornography). United States v. Merino-
Balderrama, 146 F.3d 758, 762–63 (9th Cir. 1998), is distinguishable because in
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that case more than ten minutes of film were shown, there was no evidence that the
defendant had ever viewed the film, and his knowledge of file content could have
been established by still images of child pornography on the covers of the tapes.
2. The district court did not commit procedural error in sentencing
Kowaleski. The district court did say that 44,000 images was more than it had
encountered in any case before, and that the seriousness of the crime was
underscored by the fact that “44,660 images files and 210 movie files of child
pornography had been seized.” But reading the transcript in context shows that the
district court was aware that many of the images were not child pornography. The
district court acknowledged as much, stating that the top sentencing enhancement
only required 600 images, and that whatever the number, there were a lot of
images. The district court confirmed its reasoning in applying that enhancement
on the basis that 120 of the video files that were confirmed as child pornography
converted to over 9000 images under the Sentencing Guidelines. See U.S.S.G. §
2G2.2 cmt. n.4(b)(ii). While the references to the 44,000 images could have been
clearer, we will not vacate the sentence on that basis. See United States v.
Vanderwerfhorst, 576 F.3d 929, 936 (9th Cir. 2009).
The transcript of the sentencing hearing also shows that after correctly
calculating the Sentencing Guidelines range, the district court carefully considered
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and responded to Kowaleski’s arguments and gave reasons for its sentencing
decision consistent with the sentencing factors under 18 U.S.C. § 3553. This is
consistent with our procedural requirements related to sentencing. See United
States v. Carty, 520 F.3d 984, 992–93 (9th Cir. 2008).
3. Based on the district court’s analysis of the § 3553 factors, there is
nothing in the record to suggest that the district court’s below-Guidelines sentence
is substantively unreasonable. See id. at 993.
AFFIRMED.
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