UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4331
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
HOWARD JAMES CLEM, IV, a/k/a Jamie, a/k/a
h.clemiv81@yahoo.com,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District
Judge. (1:14-cr-00405-MJG-2)
Submitted: March 31, 2016 Decided: April 8, 2016
Before KING and DUNCAN, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Warren E. Gorman, Rockville, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Judson T. Mihok, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Howard James Clem, IV, appeals from his convictions and
108-month sentence entered following a jury verdict finding him
guilty of conspiracy to distribute and receive child
pornography, receipt of child pornography (two counts), and
possession of child pornography. On appeal, Clem raises
numerous claims. We affirm.
I.
Clem first asserts that insufficient evidence supported his
convictions. However, the only element that Clem contests on
appeal is whether or not he knew that the charged depictions
involved a minor engaging in sexually explicit conduct. Clem
asserts that he received blurry, postage-stamp sized images on
his phone and that there is no evidence that he ever opened the
pictures. Because 18 U.S.C. §§ 2252(a), 2252A (2012) do 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, 130-31 (2d Cir. 2012) (collecting
cases).
In determining whether there was sufficient evidence to
support the verdict, we review both direct and circumstantial
evidence and permit “the government the benefit of all
reasonable inferences from the facts proven to those sought to
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be established.” United States v. Tresvant, 677 F.2d 1018, 1021
(4th Cir. 1982). Circumstantial evidence may be sufficient to
support a conviction even if it does not exclude every
reasonable hypothesis consistent with innocence. United
States v. Jackson, 863 F.2d 1168, 1173 (4th Cir. 1989); see also
United States v. Burgos, 94 F.3d 849, 857-58 (4th Cir. 1996) (en
banc) (holding that circumstantial evidence alone is sufficient
to support a cocaine conspiracy conviction).
Here, the Government produced evidence that Clem repeatedly
commented on the images of child pornography that were sent to
him and that he requested sexually explicit images of a specific
child on numerous occasions. While Clem testified that he only
guessed at the content of the images, the jury rejected his
testimony. Witness credibility is within the sole province of
the jury, and we will not reassess the credibility of testimony.
United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989). We
find that the circumstantial evidence presented by the
Government was more than sufficient to show that Clem opened the
files at issue and, thus, that his violation of the statute was
knowing.
II.
Clem next argues that the admission of the pornographic
pictures by the Government violated his rights to due process
and equal protection. Specifically, he asserts that the
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pictures presented by the Government were larger and clearer
than how he received them and that this admission was
fundamentally unfair. The Supreme Court has held that a
defendant’s due process rights are not violated by the admission
of relevant evidence. Estelle v. McGuire, 502 U.S. 62, 70
(1991); see also Dowling v. United States, 493 U.S. 342, 353-54
(1990) (holding that admission of evidence must be fundamentally
unfair to constitute a due process violation). 1
Clem essentially complains that he was not permitted to
show the blurred state in which he received the images and that
the Government was improperly hiding behind 18 U.S.C. § 3509(m)
(2012). Section 3509(m) requires that child pornography images
involved in a criminal proceeding must remain in the “care,
custody, and control” of the Government or the district court.
Accordingly, the Government was clearly barred from doing what
Clem requested: transmitting the images from Maryland to
1The Equal Protection Clause is “essentially a direction
that all persons similarly situated should be treated alike.”
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439
(1985). Clem does not argue that he was treated differently
than any other similarly situated defendant, and he cites no
cases applying the Equal Protection Clause to the admission of
evidence.
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servers in California via Skout, 2 and then back to a cellular
telephone in Maryland.
Instead, the Government produced testimony that images from
Skout would initially be received in a blurred state and that
the receiver could tap once to view a 160 pixel version and tap
twice to view a 320 pixel version. The Government then provided
a demonstration with a benign image of the blurred effect, as
well as the 160 pixel and 320 pixel versions. The Government
then submitted the unblurred pornographic images at 160 and 320
pixels. Clem, for his part, was permitted to introduce exhibits
of (adult) pornographic images and a live, in-court
demonstration of how those images looked when received on his
phone. We find that the record does not reflect that the
admission of evidence was confusing or misleading. As such,
Clem was not deprived of due process or otherwise denied a
meaningful opportunity to present a complete defense.
III.
Clem asserts that a conversation between him and his
coconspirator regarding a child (the coconspirator’s daughter)
was improperly admitted in violation of Fed. R. Evid. 404(b).
However, as the Government points out, the Rule 404(b) motion
2
Skout is a social networking site, through which Clem
received the images in question.
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concerned conversations Clem had with other users (not his
coconspirator) on Skout that explored common themes of sex with
minor females and mother-daughter incest. Conversations with a
coconspirator would not be Rule 404(b) evidence as they were
intrinsic to the charged conduct, particularly the conspiracy.
Clem does not dispute the Government’s position in his reply
brief. Accordingly, Clem’s argument is rejected as frivolous.
IV.
Clem contends that telephone records were improperly turned
over to him in an untimely manner in violation of Brady v.
Maryland, 373 U.S. 83 (1963), and Fed. R. Crim. P. 16. Under
Brady, due process is violated if the evidence in question:
(1) is favorable to the defendant, because it is either
exculpatory or impeaching; (2) was suppressed by the government;
and (3) is material. Strickler v. Greene, 527 U.S. 263, 281-82
(1999). Undisclosed evidence is material when its cumulative
effect is such that “there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the
proceeding would have been different.” Kyles v. Whitley, 514
U.S. 419, 433-34 (1995). A reasonable probability is one
sufficient to undermine confidence in the outcome. Id. at 434.
We find that none of these requirements are met regarding
the evidence at issue. The disputed records showing telephone
conversations between Clem and his coconspirator, which
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corroborated the coconspirator’s testimony, are not favorable to
Clem. The records were turned over when received and, thus,
were not suppressed. Finally, whether or not Clem and his
coconspirator spoke on the phone was not material to Clem’s
defense that his relationship with his coconspirator was
strictly role playing and that he did not want his coconspirator
to send him child pornography.
Without providing any citations to the record, Clem claims
that, if he had proper time to analyze the phone records, he
could have shown that he and his coconspirator did not have any
communication between June 28, 2012, and March 7, 2013.
However, even if there was no communication during a certain
period, Clem fails to show how this impacts the proof of
communications outside this time period. Moreover, Clem’s claim
ignores the frequent Skout conversations during the cited time
period. Because the evidence at issue was not material or
favorable, there was no Brady violation in the timing of the
production.
Rule 16(a)(1)(E) requires the Government to permit the
defendant to inspect documents and objects that are in the
Government’s possession, custody, or control, and (i) material
to the defense, (ii) intended to be used in the Government’s
case-in-chief, or (iii) obtained from the defendant. The
records did not belong to Clem, and the Government did not use
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them in its case-in-chief. Thus, in order for the records to be
discoverable under Rule 16, Clem must show that the records were
“material” to his defense. As discussed above, the fact that
Clem and his coconspirator spoke on the phone was not material,
given the wealth of evidence against Clem. Accordingly, there
was no discovery violation.
V.
Finally, Clem argues that his 108-month sentence is
substantively unreasonable. When reviewing the substantive
reasonableness of a sentence, we consider “the totality of the
circumstances” under an abuse of discretion standard. Gall v.
United States, 552 U.S. 38, 51 (2007). In evaluating the
sentence for an abuse of discretion, this court “give[s] due
deference to the [d]istrict [c]ourt’s reasoned and reasonable
decision that the § 3553(a) factors, on the whole, justified the
sentence.” Id. at 59-60. We presume that a sentence within or
below a properly calculated Guidelines range is substantively
reasonable. United States v. Louthian, 756 F.3d 295, 306 (4th
Cir.), cert. denied, 135 S. Ct. 421 (2014). The defendant bears
the burden of rebutting this presumption “by showing that the
sentence is unreasonable when measured against” the sentencing
factors set forth in 18 U.S.C. § 3553(a) (2012). Id.
Clem’s claim of substantive unreasonableness is based
largely on the length of his coconspirator’s sentence (84
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months) compared to his, given that the coconspirator is the one
who took pictures of her daughter and sent them to Clem.
However, some disparity is reasonably expected based on the
coconspirator’s cooperation. Moreover, because Clem’s sentence
is within the Guidelines range, it is presumed reasonable, and
we find that Clem fails to rebut this presumption. The district
court primarily relied on the need for deterrence and its
findings that the coconspirator was vulnerable and malleable,
that Clem had not been truthful at trial, and that Clem was
aware of the identity of the victim. Clem does not show that
these findings are clearly erroneous and has not provided any
other basis to rebut the presumption of reasonableness attached
to his sentence. Accordingly, Clem’s sentence was substantively
reasonable.
VI.
Thus, we affirm Clem’s convictions and sentence. 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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