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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-15803
Non-Argument Calendar
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D.C. Docket No. 1:14-cr-20159-BB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDWIDGE JUNIOR DARBOUZE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(September 4, 2015)
Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
A jury convicted Edwidge Darbouze of all five counts of a superseding
indictment: attempting to receive child pornography, in violation of 18 U.S.C.
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§§ 2252(a)(2) and (b)(1) (Counts 1 and 2); possession of a Compaq desktop
computer containing child pornography, in violation of 18 U.S.C. §§ 2252(a)(4)(B)
and (b)(2) (Count 3); possession of a Polaroid Micro SD Card 32GB containing
child pornography, including a visual depiction of a minor under 12, in violation of
§§ 2252(a)(4)(B) and (b)(2) (Count 4); and possession of a Samsung Galaxy
cellular telephone containing child pornography, including visual depiction of a
minor under 12, in violation of §§ 2252(a)(4)(B) and (b)(2) (Count 5).
After the District Court sentenced Darbouze to concurrent prison terms of
135 months and supervised release terms of 120 months, he lodged this appeal. He
challenges his convictions on two grounds. First, he contends that the District
Court abused its discretion under Federal Rule of Evidence 403 when it allowed
the Government to introduce into evidence eight screen shots and one video of
child pornography. Second, he asserts that the District Court abused its discretion
in admitting Homeland Security Special Agent Deborah Trajkovic’s testimony that
Evans Darbouze told her that he did not know how to use peer-to-peer file sharing.
We find no abuse of discretion in either instance and accordingly affirm
Darbouze’s convictions.
I.
Federal Rule of Evidence 403, Excluding Relevant Evidence for Prejudice,
Confusion, Waste of Time, or Other Reasons, states: “The court may exclude
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relevant evidence if its probative value is substantially outweighed by a danger of
one or more of the following: unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
Darbouze argues that the District Court abused its discretion in admitting the eight
screen shots and one video of child pornography because he had previously
stipulated that these items contained images of prepubescent minors. Moreover, he
argues, their prejudicial value was substantial because images of minors engaged
in sexually explicit activity would normally cause a juror to find guilt in order to
hold someone accountable.
This Court reviews a district court's evidentiary rulings for a clear abuse of
discretion, only reversing if the “resulting error affected the defendant's substantial
rights.” United States v. Tinoco, 304 F.3d 1088, 1119 (2002). “Rule 403 is an
extraordinary remedy which the district court should invoke sparingly, and the
balance should be struck in favor of admissibility.” Id. at 1120 (quotation marks
and alterations omitted). In short, we consider the evidence in a light most
favorable to admission, “maximizing its probative value and minimizing its undue
prejudicial impact.” States v. Dodds, 347 F.3d 893, 897 (11th Cir. 2003).
Photographs of child pornography may be probative to show: 1) the images are
child pornography, 2) the defendant knew they were child pornography, 3) the
defendant intended to collect child pornography, or 4) that the pornography
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crossed state lines. Id. at 899. Absent a stipulation that the defendant knew he was
in possession of child pornography, a district court does not abuse its discretion
when it finds that the risk of injecting emotions into the decision-making process
does not substantially outweigh the probative value of the images. United States v.
Alfaro-Moncada, 607 F.3d 720, 734 (11th Cir. 2010).
We find no abuse here. Darbouze did not stipulate that he knew the images
were child pornography. Furthermore, the District Court took pains to limit the
prejudicial effect by limiting the number of images shown, and striking from the
venire for cause those jurors who said they could not be fair and impartial after
viewing the images.
II.
The pornographic evidence the Government introduced at Darbouze’s trial
came from a search of the two-bedroom apartment where he was living with his
parents and his brother, Evans. His parents slept in one bedroom and he slept in
the other. Evans slept on a mattress in the living room. Among other things, the
search disclosed a Compaq desktop computer in the living room with
approximately fourteen videos of child pornography, and a cellphone charging on
the floor beside Darbouze’s bed containing a micro SD card with approximately
fifteen videos of child pornography on it.
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Agent Trajkovic interviewed Darbouze1 and Evans after she and ten other
agents finished searching the apartment. At trial, on the prosecutor’s direct
examination, she recounted what took place during the search and the subsequent
interviews. On cross-examination, defense counsel turned to Agent Trajkovic’s
interaction with Evans:
Q. And before you interviewed Edwidge Junior, you interviewed
Evans Darbouze, okay?
A. Yes.
Q. So I want to talk to you about some of the things he told you
that you didn't necessarily follow up on or investigate, okay?
Evans Darbouze told you he had never seen child pornography
in his life, right?
[PROSECUTOR]: Objection, hearsay.
[DEFENSE COUNSEL]: It's not for the truth.
THE COURT: The objection is overruled. I’ll allow it.
The cross-examination then continued, during which the Agent Trajkovic
said that Evans denied watching child pornography. After defense counsel asked
her if she had considered whether Evans was the one to download child
pornography, Agent Trajkovic responded, “we basically had ruled out Evans
Darbouze because when he was asked about his use of the computer and his
knowledge about P2P network and P2P software—.” At that point, defense
1
Darbouze spoke to Agent Trajkovic after receiving an advice of rights and waiving his
right to remain silent.
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counsel interjected, “I’m not asking you about that, Special Agent Trajkovic, and
I’m going to stop you because there’s certain rules. What I’m asking is, you took
him at his word when he told you that statement.” She then responded, “No, I
didn’t.”
On redirect examination, when the prosecutor asked the agent if Evans
“[w]as . . . asked whether he had ever downloaded child pornography,” defense
counsel said: “Your Honor, as long as this isn’t being introduced for the truth.”
The court stated, “Yes, it’s—,” and the prosecutor clarified, “It’s not.” But after
the prosecutor asked, “did he say whether he had ever used peer-to-peer file
sharing,” defense counsel objected, “hearsay, Sixth Amendment, and beyond the
scope.” The court overruled the objection, and the agent stated: “he said that he
didn’t know how to use peer-to-peer. He didn’t know what file sharing was.”
Darbouze contends that Evans’s statement to Agent Trajkovic that he “didn’t
know how to use peer-to-peer file sharing” constituted rank hearsay and, moreover,
was “testimonial” and thus inadmissible under the Sixth Amendment’s
Confrontation Clause. 2 We disagree. First, defense counsel opened the door by
intimating that the government’s investigation was unreasonably narrow for not
focusing on Evans. The prosecution was entitled to rehabilitate the witness by
eliciting the reasoning behind her investigative decisions.
2
The Sixth Amendment states, in part: “In all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against him.”
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Second, it is clear from the context that neither side sought to use Evans’
statements for their truth. When the prosecutor objected on hearsay grounds to
defense counsel’s cross-examination of the agent as to what Evans had told her,
defense counsel was quick to say that she was not introducing Evans’s statements
“for the truth.” The court agreed and therefore overruled the prosecutor’s
objection. The court made the same ruling when the prosecutor engaged in similar
questioning on redirect examination, and this ruling was proper for the same
reasons. In both cases, Evans’ statements did not come in for the truth, but to
explain why Agent Trajkovic focused the investigation as she did. Defense
counsel had opened the door on cross-examination and effectively invited the
prosecutor to ask the question at issue.
In sum, because the challenged answer was not introduced for the truth of its
contents, Darbouze’s hearsay and Confrontation Clause challenges fail. See Fed.
R. Evid. 801(c); Crawford v. Washington, 541 U.S. 36, 59 n.9, 124 S. Ct. 1354,
1369 n.9, 158 L. Ed. 2d 177 (2004) (“The Clause . . . does not bar the use of
testimonial statements for purposes other than establishing the truth of the matter
asserted.”).
AFFIRMED.
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