United States v. Ion Becker

Case: 15-13869 Date Filed: 11/29/2016 Page: 1 of 7

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 15-13869
Non-Argument Calendar
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D.C. Docket No. 4:14-cr-10022-JLK-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ION BECKER,

Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Florida
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(November 29, 2016)

Before MARCUS, FAY, and EDMONDSON, Circuit Judges.
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PER CURIAM:

Ion Becker appeals his convictions for three counts of receipt of child

pornography and two counts of possession of child pornography, in violation of 18

U.S.C. §§ 2252(a)(2) and (a)(4)(B). No reversible error has been shown; we

affirm.

I.

Becker first contends the district court abused its discretion in admitting

eight images of child pornography, despite Becker’s stipulation that his two laptop

computers contained child pornography. Becker contends the introduction of this

evidence was unfairly prejudicial.

We review for abuse-of-discretion a district court’s evidentiary rulings.

United States v. Dodds, 347 F.3d 893, 897 (11th Cir. 2003). A district court “may

exclude relevant evidence if its probative value is substantially outweighed by a

danger of . . . unfair prejudice.” Fed. R. Evid. 403. We have said, however, that

Rule 403 is an “extraordinary remedy which the district court should invoke

sparingly.” Dodds, 347 F.3d at 897 (quotations omitted). In considering

admissibility under Rule 403, we view “the evidence in a light most favorable to its

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admission, maximizing its probative value and minimizing its undue prejudicial

impact.” Id. Typically, “the prosecution is entitled to prove its case by evidence

of its own choice,” and “a criminal defendant may not stipulate or admit his way

out of the full evidentiary force of the case as the Government chooses to present

it.” Old Chief v. United States, 117 S. Ct. 644, 653 (1997).

The district court abused no discretion in admitting the still images of child

pornography. The images not only proved that Becker’s computers actually

contained child pornography -- a fact to which Becker had stipulated -- but also

tended to show that Becker knew he was in possession of child pornography and to

show his intent to possess child pornography. See United States v. Alfaro-

Moncada, 607 F.3d 720, 734 (11th Cir. 2010) (although defendant stipulated that

the DVDs contained child pornography, still images from the DVDs “also tended

to show that [defendant] knew he was in possession of child pornography, a fact

that he did not stipulate”); Dodds, 347 F.3d at 899 (admission of 66 child

pornographic images was no abuse of discretion in part because the images tended

to show defendant’s knowledge that the images constituted child pornography and

that defendant intended to collect such pornography).

The district court also took proper precautions to minimize unfair prejudice

by admitting only a small portion of the hundreds of images discovered, cautioning

jurors during voir dire that child-pornographic images might be offered into

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evidence, striking jurors who indicated they could not be fair and impartial or who

had religious objections, and by making viewing of the images optional to the

jurors. See Alfaro-Moncada, 607 F.3d at 734; Dodds, 347 F.3d at 899. Because

we cannot say that the risk of unfair prejudice outweighed the images’ probative

value, the district court abused no discretion in denying Becker’s motion in limine.

II.

Becker next challenges the sufficiency of the evidence presented at trial.

“We review de novo the sufficiency of the evidence to support a conviction,

viewing all the evidence in the light most favorable to the government and drawing

all reasonable inferences and credibility choices in favor of the jury’s verdict.”

United States v. Grzybowicz, 747 F.3d 1296, 1304 (11th Cir. 2014) (quotations

omitted). “A jury’s verdict cannot be overturned if any reasonable construction of

the evidence would have allowed the jury to find the defendant guilty beyond a

reasonable doubt.” Id. (quotations omitted).

To obtain a conviction for receipt of child pornography, the government

must prove, among other things, that the defendant “knowingly receive[d]” child

pornography through means affecting interstate commerce, “including by

computer.” 18 U.S.C. § 2252(a)(2). A person “knowingly” receives child

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pornography “when he intentionally views, acquires, or accepts child pornography

on a computer from an outside source.” United States v. Pruitt, 638 F.3d 763, 766

(11th Cir. 2011). Likewise, to prove a defendant “knowingly possesse[d]” child

pornography -- for purposes of obtaining a conviction under 18 U.S.C. §

2252(a)(4)(B) -- the government must prove that the defendant knew the files

contained an unlawful visual depiction of minors engaging in sexually explicit

conduct. Alfaro-Moncada, 607 F.3d at 733. “[T]he term ‘knowingly’ means that

the act was performed voluntarily and intentionally, and not because of a mistake

or accident.” United States v. Woodruff, 296 F.3d 1041, 1047 (11th Cir. 2002).

Proof of an element of a crime “may be established through circumstantial

evidence or from inferences drawn from the conduct of an individual.” United

States v. Utter, 97 F.3d 509, 512 (11th Cir. 1996). For example, “[e]vidence that a

person has sought out -- searched for -- child pornography on the internet and has a

computer containing child-pornography images . . . can count as circumstantial

evidence that a person has ‘knowingly receive[d]’ child pornography.” Pruitt, 638

F.3d at 766.

As an initial matter, Becker disputes only whether it was he -- and not

another person -- who knowingly received and possessed the child pornography

found on his two laptop computers. That Becker’s computers contained child

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pornography and that the pornography was received through interstate commerce

is undisputed.

Evidence presented at trial showed that Becker -- who had a college degree

in computer arts -- owned and used extensively the two laptop computers found at

his home. This evidence tended to show Becker’s control over the computers

where the child pornography was found. On both computers, Becker had

downloaded, installed, and run ARES: a file-sharing program used commonly to

search for and to download child pornography. In the ARES files and logs,

officers found evidence that over 1,000 titles indicative of child pornography had

been downloaded and also found search terms associated with child pornography.

The government presented evidence of a large volume of pornographic videos and

pictures that were stored and accessed regularly on Becker’s laptops. On one

computer, these images -- which were titled using explicit terms often used to

identify child pornography files -- were saved in a folder on the desktop labeled

with Becker’s first name: “Ion.” One of Becker’s laptops also contained a log of

Becker’s Skype chat during which Becker commented that his new computer had a

really good video card and that the “Porn is sharp. And clear.” On this record, the

government presented sufficient circumstantial evidence to allow the jury to infer

that Becker received and possessed knowingly child pornography.

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Although Becker presented some evidence that he allowed his friends to use

his computers, nothing evidenced that these friends accessed Becker’s computers

with anywhere near the frequency with which the computers were being used to

search for, download, and to view child pornography. Moreover, the “jury is free

to choose among reasonable constructions of the evidence”: the evidence need not

“exclude every reasonable hypothesis of innocence” to support a finding of guilt

beyond a reasonable doubt. United States v. Cruz-Valdez, 773 F.2d 1541, 1545

(11th Cir. 1985) (en banc); see also United States v. Jiminez, 564 F.3d 1280, 1285

(11th Cir. 2009) (“the issue is not whether a jury reasonably could have acquitted

but whether it reasonably could have found guilt beyond a reasonable doubt”).

The jury was also entitled to disbelieve Becker’s testimony -- in which Becker

asserted his innocence and questioned the veracity of his own witnesses’ testimony

about the frequency with which they accessed Becker’s computers -- and to use

Becker’s testimony as substantive evidence of his guilt. See United States v.

Williamson, 339 F.3d 1295, 1301 n.14 (11th Cir. 2003). “[W]e are bound by the

jury’s credibility determinations, and by its rejection of the inferences raised by the

defendant.” United States v. Peters, 403 F.3d 1263, 1268 (11th Cir. 2005).

The record contains sufficient evidence from which a reasonable fact-finder

could have found Becker guilty beyond a reasonable doubt.

AFFIRMED.

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