United States v. Sweeney

United States Court of Appeals
For the First Circuit

No. 17-1325

UNITED STATES OF AMERICA,

Appellee,

v.

NEIL SWEENEY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Timothy S. Hillman, U.S. District Judge]

Before

Lynch, Stahl, and Kayatta,
Circuit Judges.

Joan M. Fund for appellant.
Jo-Ann Karshon, Office of the Solicitor General, United
States Department of Justice, with whom William D. Weinreb, Acting
United States Attorney, was on brief, for appellee.

April 11, 2018
 STAHL, Circuit Judge. Defendant Neil Sweeney

("Sweeney") was convicted of distribution and possession of child

pornography, in violation of 18 U.S.C. § 2252A. On appeal, Sweeney

raises the following arguments: (1) the district court erred in

admitting evidence that was collected based on an overly broad and

stale search warrant in violation of his Fourth Amendment rights;

(2) the district court erred in failing to suppress statements

made in violation of his Fifth and Sixth Amendment rights; (3) the

district court abused its discretion in admitting evidence

pursuant to Federal Rule of Evidence 414; (4) the district court

erred in giving an aiding and abetting jury instruction; and (5)

the sentence imposed by the district court violated the

Constitution. We affirm his conviction and sentence in all

respects.

I. Background

In 2014, the Federal Bureau of Investigation ("FBI") was

investigating the distribution of child pornography through a

network called GigaTribe.1 In December 2014, FBI Agent Kevin

Matthews ("Agent Matthews") logged onto GigaTribe using the alias

"localboy" in order to make contact with GigaTribe user

1According to the government, "GigaTribe is a peer-to-peer
sharing network used by many individuals who are involved in the
illegal distribution of child pornography. Through the GigaTribe
network, individuals can share files that they have stored on their
computers with other people who are part of the network."

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"irishrebble."2 Agent Matthews made contact with irishrebble, and

irishrebble expressed an interest in young boys between the ages

of eight to fifteen.

Several months later, on April 9, 2015, Agent Matthews,

through the alias localboy, again made contact with irishrebble on

GigaTribe. Irishrebble shared the password to his file folder

with localboy, in exchange for localboy providing irishrebble with

the password to localboy's folder. Agent Matthews was able to

download thirty images and videos that constituted child

pornography from irishrebble's folder, however he lost access to

the folder after about 1.5 minutes of downloading. Matthews

assumed that he was cut off from irishrebble's folder once

irishrebble learned that the password Matthews provided was

unusable. Agent Matthews determined that there were 239 files in

irishrebble's shared folder on GigaTribe. Agent Matthews saw

dozens of video and image files in the folder and their names

suggested that the files were child pornography.

Following this event, FBI agents traced the IP address

used by irishrebble on April 9, 2015 to 54 Elm Street, Worcester,

Massachusetts. During the relevant period, Sweeney lived on the

2 Agent Matthews had taken over the account of localboy as
part of a cooperation agreement in 2011. Matthews had between
eighty to ninety GigaTribe accounts that he monitored to
investigate incidents of child pornography and child pornography
distribution.

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third floor of the residence. Several other people resided at the

location, which also included a carriage house in the rear. The

moniker "irishrebble" was used by Defendant on various social

networking websites, including LinkedIn, Twitter, and a Yahoo

account, irishrebble@yahoo.com. The Yahoo account was linked to

the Facebook profile of one Neil Sweeney and the GigaTribe account

of irishrebble. The Facebook profile of one Neil Sweeney included

pictures of the Defendant. The password for the GigaTribe account

user irishrebble was Primo6765. The numerical part of the

password, 6765, corresponded to Defendant's birthday, June 7,

1965.

Based on this information, FBI agents obtained a search

warrant for Sweeney's residence and on March 20, 2015, the warrant

was executed. Inside Sweeney's residence, agents discovered a

Chromebook, which was damaged and unsearchable, and a Dell laptop.

The laptop had the same registered IP address as the one used on

April 9, 2015 by GigaTribe user irishrebble. The computer had

three users: one primary user, irishrebble, and two other accounts

associated with a Michael Riel and a Matthew Nunnelly. The

computer had accessed the Yahoo account of irishrebble@yahoo.com

and the Facebook account of a Neil Sweeney. On the laptop, agents

uncovered thumbnail image files that depicted young boys engaged

in sexual activity. The agents could not tell if the computer had

accessed GigaTribe, nor could they find the specific files that

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GigaTribe user irishrebble shared with Agent Matthews on April 9,

2015.

On the day the warrant was executed, Sweeney was arrested

at his residence. On August 19, 2015, Sweeney was indicted on two

counts for Distribution of Child Pornography and with Aiding and

Abetting that crime, and Possession of Child Pornography. On

October 3, 2016, following a six-day trial, Sweeney was convicted

on both counts. On March 13, 2017, Sweeney was sentenced to

seventeen years of imprisonment, followed by ten years of

supervised release.

II. Analysis

Sweeney contests his conviction and sentence on a

variety of grounds. We address each issue in turn.

A. Fourth Amendment Challenge: Motion to Suppress Evidence as it

Relates to the Search Warrant

Sweeney filed a motion to suppress the evidence seized

as a result of the search warrant, claiming that the warrant

violated the Fourth Amendment because it was overly broad and

stale. The district court denied the motion and also found that

it was untimely filed. On appeal, Sweeney renews his challenge to

the search warrant.

Generally, this Court reviews the district court's legal

conclusions denying a motion to suppress de novo, and its factual

findings for clear error. See United States v. Crooker, 688 F.3d

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1, 6 (1st Cir. 2012). However, pursuant to Fed. R. Crim P.

12(c)(3), the Court need not review a motion to suppress that was

untimely filed. Even when the district court rules on an untimely

motion, as the court did here, an untimely motion to suppress is

deemed waived unless the party seeking to suppress can show good

cause as to the delay. See, e.g., United States v. Walker-

Couvertier, 860 F.3d 1, 9 & n.1 (1st Cir. 2017); United States v.

Santos Batista, 239 F.3d 16, 20 (1st Cir. 2001); United States v.

Bashorun, 225 F.3d 9, 14 (1st Cir. 2000). Sweeney neither

challenged the finding of untimeliness before the district court,

nor does he now argue that his delay in filing the motion to

suppress was excused by good cause.3 As such, because of his

waiver, we need not address the merits of Sweeney's appeal.

B. Fifth and Sixth Amendment Challenge: Motion to Suppress

Statements

On May 20, 2015, when Sweeney was arrested in his home,

he asked the agents what the charges were against him. Agent

Weidlich responded that he was being charged with possession and

distribution of child pornography. Sweeney stated, "I don't even

3Sweeney's attempt to demonstrate that the motion was not
untimely in his reply brief is to no avail, as he acknowledges
that the issue was "not addressed directly" in his opening brief.
See United States v. Brennan, 994 F.2d 918, 922 n. 7 (1st Cir.
1993) (explaining that arguments raised for the first time in a
reply brief are waived).

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own a computer."4 Sweeney was not Mirandized until he was brought

to the Worcester Police Station. At the station, Agent Weidlich,

along with Detective Bisceglia, advised Sweeney of his Miranda

rights. When asked if he understood his rights, Sweeney responded

in the affirmative. Agent Weidlich asked Sweeney to sign a form

acknowledging that he understood his rights and that he was willing

to be questioned without a lawyer present. When Sweeney told the

officers that he did not have his glasses, Detective Bisceglia

offered to suspend the questioning to get Sweeney's glasses, but

Sweeney declined. Agent Weidlich offered to read through the form

again, but Sweeney again rejected the offer and signed the Miranda

acknowledgment form.

After about ten minutes of the interview, the agents

began to ask Sweeney about his email accounts. Sweeney explained,

"I'm trying to keep myself -- I don't want to dig a hole. I need

to speak to a lawyer." Agent Weidlich told Sweeney, "it's

certainly your right to talk to a lawyer, so if, we're, you want

to be done here, we're done." Sweeney then made another statement

about digging himself into a hole, and Bisceglia stated, "[s]o,

are you asking for a lawyer." Sweeney asked, "[d]o I need a

lawyer?" Agent Weidlich explained that they could not answer that

4Agent Weidlich testified that she did not include Sweeney's
statement, as to his computer ownership, in her report because
"[i]t didn't seem overly significant at the time, and it was a
statement that was made -- he wasn't asked a question."

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question and Bisceglia offered Sweeney some time to think about

it. The officers left the room and when they returned, Sweeney

stated, "I'm screwed. I need a lawyer" and said nothing else. At

which point, the interview ended. The entire encounter at the

police station was videotaped.

On appeal, Sweeney renews his challenge as to the

district court's decision denying his motion to suppress these

statements. Sweeney argues that (1) his statements made to police

during his arrest were un-Mirandized and therefore involuntary;

(2) he did not knowingly waive his Miranda rights; and (3) the

police continued to question him after he requested counsel.

Again, this Court reviews the district court's legal conclusions

as to a decision to deny a motion to suppress de novo, and its

factual findings for clear error. See Crooker, 688 F.3d at 6.

i. Statements Made During Arrest

Defendant maintains that his un-Mirandized statement, "I

don't even own a computer," should be suppressed because it was

made during an interrogation in violation of his Miranda rights.

Pursuant to Miranda v. Arizona, 384 U.S. 436, 444 (1966), "the

prosecution may not use statements . . . stemming from custodial

interrogation of the defendant unless it demonstrates the use of

procedural safeguards effective to secure the privilege against

self-incrimination."

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 All parties acknowledge that Defendant was not

Mirandized when he was first arrested at his home. Therefore, the

only question on appeal is whether Defendant was being interrogated

because Miranda is only applicable during a custodial

interrogation. See Rhode Island v. Innis, 446 U.S. 291, 300 (1980)

("It is clear therefore that the special procedural safeguards

outlined in Miranda are required not where a suspect is simply

taken into custody, but rather where a suspect in custody is

subjected to interrogation.").

The district court correctly found that Defendant's

statement, "I don't even own a computer," was not the product of

an interrogation. Defendant asked the arresting officer a

question, and the officer responded. The officer's comment did

not require a response. As the district court explained, "Mr.

Sweeney initiated the conversation by asking what he was being

charged with and gratuitously responding." See United States v.

Conley, 156 F.3d 78, 83 (1st Cir. 1998) ("A law enforcement

officer's mere description of the evidence and of potential charges

against a suspect, in direct response to the suspect's importuning,

hardly can be classified as interrogatory.").

ii. Voluntary Waiver

Defendant also argues that the statements he made during

the police interview at the station house should have been

suppressed, as his Miranda waiver was involuntary and unknowing

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because he could not read the waiver form without his glasses. In

determining whether a waiver is knowing and intelligent, the Court

considers:

whether the government demonstrated by a preponderance
of the evidence, . . . that [Defendant's] waiver and
consent were both "voluntary in that [they] were the
product of a free and deliberate choice rather than
intimidation, coercion and deception" and also made with
"full awareness of both the nature of the right being
abandoned and the consequences of the decision to
abandon."

United States v. Rosario-Diaz, 202 F.3d 54, 69 (1st Cir. 2000)

(quoting Moran v. Burbine, 475 U.S. 412, 420 (1986) (second

alteration in original)).

Viewing the totality of the circumstances particular to

this case, we cannot conclude that the district court incorrectly

determined that Sweeney's waiver and consent were knowing and

intelligent and made voluntarily. As the government explains on

appeal, the Defendant does not claim that he did not understand

his rights or that he did not know what rights he was waiving.

Sweeney's only issue on appeal is that he did not have his glasses

and thus, he could not read the form. The district court noted

that Defendant was asked if he wanted to stop to get his glasses

or if he wanted the officer to re-read him the form, but he declined

both offers. Finally, at the suppression hearing before the

district court, Sweeney testified that in the past, he had been

arrested, read his Miranda rights, understood them, and had invoked

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his right to remain silent. We therefore affirm the district

court's decision on this issue.

iii. Defendant's Request for Counsel

Finally defendant maintains that his interview

statements should be suppressed because the officers continued to

question him even after he requested counsel. It is understood

that "[i]mmediately after a suspect has invoked the right to

counsel, all questioning must cease until such counsel is

provided." United States v. Oquendo-Rivas, 750 F.3d 12, 18 (1st

Cir. 2014) (citing Edwards v. Arizona, 451 U.S. 477, 485 (1981)).

However, "[i]nvocation of the Miranda right to counsel requires,

at a minimum, some statement that can reasonably be construed to

be an expression of a desire for the assistance of an attorney."

Davis v. United States, 512 U.S. 452, 459 (1994) (internal

quotation marks omitted). "[I]f a suspect makes a reference to an

attorney that is ambiguous or equivocal in that a reasonable

officer in light of the circumstances would have understood only

that the suspect might be invoking the right to counsel, our

precedents do not require the cessation of questioning." Id.

(emphasis in original); see also Obershaw v. Lanman, 453 F.3d 56,

64 (1st Cir. 2006) (explaining that "[t]he test is an objective

one").

The district court was correct in concluding that until

Defendant stated, "I'm screwed. I need a lawyer," he had not

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unambiguously requested counsel. See Oquendo-Rivas, 750 F.3d at

19. The district court observed the videotaped interview in which

Defendant was skirting around the issue of representation. When

Sweeney stated that he needed to speak to a lawyer to avoid

"dig[ging] a hole" for himself, Agent Weidlich immediately offered

to end the interrogation. Nonetheless, Sweeney continued to talk,

unprompted, thus creating ambiguity as to whether he was invoking

his right to counsel. Further, when Agent Bisceglia asked Sweeney

to clarify whether he was requesting counsel, Sweeney asked, "[d]o

I need a lawyer?", making his statements about counsel even more

ambiguous. However, as soon as Defendant unambiguously stated, "I

need a lawyer," the agents immediately stopped the interview.

For these reasons, we affirm the district court's

decision denying Defendant's motion to suppress the statements.

C. Evidence Admitted under Fed. R. Evid. 414(a)

Prior to trial, the government moved to admit two pieces

of evidence pursuant to Fed. R. Evid. 414(a), which allows for

propensity evidence in child pornography cases. The first piece

of evidence offered by the government revealed that in 1995,

Sweeney had pleaded guilty to two counts of indecent assault and

battery on two boys, ages nine and twelve. The other evidence was

the thumbnail images taken off the laptop found in Sweeney's

residence, depicting images of what appeared to be young boys,

between the ages of eight to fifteen, engaged in sexual activity.

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Over Defendant's objection, the district court granted the

government's motion to admit the evidence.5 In order to avoid live

testimony before the jury on the topic, Sweeney stipulated to this

conviction.6 Directly after the stipulation was read, the district

court offered the following cautionary instructions as to the prior

conviction:

Ladies and gentlemen, let me -- I just want to give you
a cautionary instruction at this point. The
parties, . . . have stipulated that a 1995 guilty plea
of the defendant for indecent assault and battery on a
minor under the age of 14 years old may be admitted into
evidence. This is being admitted into evidence for a
very limited purpose, namely, on the issue of whether or
not the defendant had a propensity []or an inclination
to behave in a particular way. The government also
offers this evidence in furtherance of their efforts to
identify the defendant as irishrebble. I want to
strongly caution that you are to consider this evidence
only for these limited purposes. . . . I also want to
remind you that Mr. Sweeney is on trial for the events
of April 9th, 2015, only, and that is the -- the so-
called GigaTribe downloads, and he is not on trial for
any other act, conduct, or offense not charged in the
indictment.

5
At trial, Sweeney renewed his objection, but the district
court affirmed its earlier decision as to the admissibility of the
evidence.
6
The stipulation provided: "[D]efendant Neil Sweeney pled
guilty in 1995 to the indecent assault and battery on a person
under the age of 14 . . . . The parties further agree that, at the
time of the defendant's conduct, the child referenced in [the]
Indictment . . . was 12 years old; and the [other] child referenced
in [the] Indictment . . . was nine years old."

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 As to the thumbnail images, the jury saw five of the

images obtained from the laptop, and then heard testimony that the

remaining images found on the laptop were similar in nature.

On appeal, Sweeney claims that the district court abused

its discretion in admitting the government's evidence because it

was unfairly prejudicial in violation of Fed. R. Evid. 403, and

resulted in the jury making a decision based on emotion. The

government claims, as it did at trial, that under Rule 414, the

evidence was admissible for both its propensity value, and for

identity purposes, to show that Defendant was in fact GigaTribe

user irishrebble.

This Court reviews a district court's evidentiary

rulings for abuse of discretion, reversing only if the Court is

"left with a definite and firm conviction that the court made a

clear error of judgment." United States v. Joubert, 778 F.3d 247,

253 (1st Cir. 2015) (internal quotation marks omitted). The Court

"give[s] great deference to a district [court's] balancing of

probative value versus unfair prejudice." United States v. Breton,

740 F.3d 1, 14 (1st Cir. 2014).

"Evidence is admissible only if relevant, probative, and

not unfairly prejudicial." United States v. Jones, 748 F.3d 64,

69 (1st Cir. 2014); see Fed. R. Evid. 401, 402, 403. "[E]vidence

of a defendant's other crimes . . . is typically inadmissible to

show his propensity for crime;" however, Rule 414, "overrides the

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ban on propensity inferences in a specific situation." Jones, 748

F.3d at 69. Under Fed. R. Evid. 414(a), "the court may admit

evidence that the defendant committed any other child molestation"

and this "evidence may be considered on any matter to which it is

relevant."7 Despite the permissions outlined in Fed. R. Evid. 414,

Rule 414 evidence is still restricted by Fed. R. Evid. 403, which

"lets a judge exclude relevant evidence if 'its probative value is

substantially outweighed' by its unfairly prejudicial nature.

Unfairly prejudicial means 'an undue tendency to suggest decision

on an improper basis, commonly, though not necessarily, an

emotional one.'" Jones, 748 F.3d at 70 (quoting Fed. R. Evid.

403). While Rule 414 is subject to the balancing test of Rule

403, there is, at least in this Circuit, "no heightened or special

test for evaluating the admission of Rule 414 evidence under Rule

403." United States v. Majeroni, 784 F.3d 72, 76 (1st Cir. 2015).

i. Evidence of Prior Assault

In United States v. Majeroni, this Court explained that

the district court did not abuse its discretion in admitting Rule

414 evidence where:

[t]he evidence of prior possession of child pornography
was in the form of a guilty plea, eliminating any risk
of having the issue of prior conduct bloom into a trial
within the trial . . . . The fact that the prior conduct

7
As explained in Rule 414(d), child molestation is defined
as "any conduct prohibited by 18 U.S.C. chapter 109A." Child
molestation includes possession and distribution of child
pornography, regardless of whether the conduct is charged.

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 was similar to the charged conduct enhanced its presumed
probativeness. Nor does the fact that the prior conduct
occurred over ten years before the charged conduct
compel a different result. . . . And the court's
controlled method of introducing the information, with
a limiting instruction, speaks well of its carefully
nuanced exercise of discretion.

784 F.3d at 76.

The same is true here. As in Majeroni, the parties

introduced the prior conviction through a stipulation. Further,

directly after the stipulation was read, the court read a limiting

instruction to the jury, warning the jury that Sweeney was not on

trial for his prior crimes. See also Jones, 748 F.3d at 71

(explaining that while Rule 414(a) evidence could result in an

impassioned jury decision based on emotion or bias, the bias issue

was resolved by the judge's limiting instructions).

Sweeney however contends that Majeroni is not applicable

because unlike Majeroni, whose prior conviction involved almost

identical conduct as the offense at issue, Sweeney's prior

conviction is not similar to the charged offense. While the

charged conduct may not be as similar as the conduct in Majeroni,

the evidence does show Sweeney's propensity to favor boys in a

certain age range. Sweeney himself made identity an important

question in the trial because his defense was that he was not

GigaTribe user irishrebble. In response, the government offered

the Rule 414 evidence to show that Sweeney was interested in boys

between the ages of eight and fifteen, i.e. the relevant ages of

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the boys from his prior conviction. This was also the age of

interest expressed by irishrebble during the GigaTribe chat

between irishrebble and Agent Matthews in December 2014. As such,

the propensity evidence tended to show that Sweeney was

irishrebble, a man with an interest in young boys within a certain

age range. See also Joubert, 778 F.3d at 254 (finding that the

district court did not abuse its discretion in admitting Rule

414(a) evidence "where that testimony showed that the defendant

sought a similar type of sexual gratification"). As we already

stated, Rule 414(a) evidence is allowable for propensity purposes,

and "on any matter to which it is relevant."8 Jones, 748 F.3d at

69. Therefore, the district court did not abuse its discretion in

admitting the evidence, as it was directly relevant to Defendant's

propensity to commit the crime (i.e., his interest in young boys),

as expressly allowed by Rule 414(a). While the evidence was surely

prejudicial, we cannot find, under the deferential standard of

review, that it was unfairly prejudicial such that it violated

Fed. R. Evid. 403.

8Sweeney does not contend that the prior conviction falls
outside the parameters of allowable evidence under Fed. R. Evid.
414(a), nor does Sweeney claim that Fed. R. Evid. 414(a) in any
way violates his constitutional rights. The question on appeal is
solely whether the evidence is allowable under Fed. R. Evid. 403.

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 ii. Thumbnail Images

Sweeney also appeals the district court's decision to

admit the Rule 414(a) evidence of the thumbnail images found on

the laptop in his residence. Sweeney argues that (1) "[n]o expert

testified that the images on the laptop were actual child

pornography and not computer generated images"; and (2) coupled

with his prior conviction, the images were highly prejudicial "in

light of the fact that there was no GigaTribe software or images

downloaded from GigaTribe found on the laptop computer" in

Sweeney's bedroom.

Beyond the passing reference to the fact that no expert

testified that the images were child pornography, Defendant fails

to challenge whether the evidence was properly categorized as

admissible Rule 414(a) evidence, and instead, focuses solely on

the Rule 403 analysis.9 Further, Sweeney appears to concede in

his brief that the images are in fact child pornography, as he

refers to the content of the images as "prepubescent males."

Therefore, we need not address this issue on appeal.

As to Sweeney's argument that the thumbnail images were

unfairly prejudicial under Rule 403, we cannot find that the

district court abused its discretion in allowing the evidence to

9 Before the district court, Sweeney claimed that the images
were simply pornographic in nature.

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be introduced.10 Defendant insinuates that because there was no

direct evidence that he used the computer to access GigaTribe, the

evidence should not have been allowed. However, there is no direct

evidence requirement tied to Rule 414(a). Further, there was a

significant amount of circumstantial evidence linking Sweeney to

the GigaTribe account irishrebble. Various social networking

accounts associated with the Defendant used the same moniker as

the GigaTribe user. The numbers used in the password for GigaTribe

user irishrebble corresponded to Sweeney's birthday. Finally, the

computer found in Sweeney's residence corresponded to the IP

address used by GigaTribe user irishrebble on April 9, 2015. The

images of child pornography found on the computer located in

Sweeney's residence depicting boys of the age group favored by

GigaTribe user irishrebble served as additional circumstantial

evidence by which the jury could infer that Sweeney was in fact

the GigaTribe user irishrebble.11

10 Prior to the admission of the images, the district court
again reminded the jury about the limited purpose of the evidence.
The court stated:
Ladies and gentlemen, I just want to repeat the caution
that I -- that I just gave you. You are about to hear
about and to see photographs of images on this Dell
laptop that are alleged to be child pornography. . . .
I want to strongly caution you to consider these -- this
evidence for this limited purpose only.
11 We acknowledge there was also evidence that could weigh
against a finding that Sweeney was GigaTribe user irishrebble.
Defendant tried to rebut the assertion that he used the laptop to
access GigaTribe, and instead, claimed that someone else in the

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D. Sufficiency of the Evidence: Aiding and Abetting

On appeal, Sweeney claims, as he did below, that the

district court's decision to give the aiding and abetting

instruction was in error. He also argues that the failure to

include the option of a check box in the verdict slip as to whether

the jury was convicting Defendant as an accomplice or principal

was also in error. Finally, he claims that the government failed

to meets its burden as to accomplice liability, such that there

was insufficient evidence to result in a conviction.

Defendant failed to develop any argument worth

considering as to the district court's failure to include a check

box in the verdict slip. Therefore, that argument is waived on

appeal. See Colón v. R.K. Grace & Co., 358 F.3d 1, 5 (1st Cir.

2003).

Next, Sweeney asserts that the instruction for aiding

and abetting was improper because the government's theory of the

case was that Defendant was the principal. "We review de novo a

preserved objection to the trial court's decision to give a

requested jury instruction." United States v. Whitney, 524 F.3d

134, 138 (1st Cir. 2008).

residence could have accessed the non-password protected router
and used GigaTribe to share child pornography via username
irishrebble. The fact that the jury credited the government's
evidence over the Defendant's does not mean that the thumbnail
images admitted into evidence under Rule 414 were unfairly
prejudicial.

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 As this Court explained in United States v. Howard, 687

F.3d 13, 19 (1st Cir. 2012), "[Defendant]'s own theory of the case

made the . . . aiding and abetting instruction[] appropriate." As

in Howard, Sweeney attempted to shift the blame to another person

who resided at 54 Elm Street. Sweeney tried to show that other

people at the residence had access to computers that were not

searched and that the router affiliated with the IP address used

on April 9, 2015, was not password protected, such that any

resident at the location could have accessed it. However, the

government introduced evidence that showed that in order for anyone

to access the GigaTribe account of irishrebble, they needed to use

a password. That password, said the government, was Sweeney's and

thus the jury could have inferred that Sweeney, by sharing his

password with another user, aided and abetted a crime. In crafting

jury instructions, the court "must consider all of the evidence

introduced at trial, in other words, the government's as well as

the defense's." Id. As such, the instruction was not improper.

Finally, we need not consider Defendant's claim that the

government failed to meet its burden of proof as to accomplice

liability on the alternative theory of the case because, as the

government points out in its brief, "Sweeney does not dispute that

the evidence was sufficient to convict him as a principal."

"[A]iding and abetting 'is not a separate offense.'" United States

v. Vázquez-Castro, 640 F.3d 19, 25 (1st Cir. 2011) (quoting United

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States v. Sanchez, 917 F.2d 607, 611-12 (1st Cir. 1990)). "[W]hen

a jury returns a general verdict of guilty on a single count

charging more than one criminal act, the verdict stands if the

evidence sufficiently supports any of the acts charged." United

States v. Nieves-Burgos, 62 F.3d 431, 434 (1st Cir. 1995). In

Nieves-Burgos, the government acknowledged "that there was

insufficient evidence presented at trial to support the firearms

conviction with respect to two of the three guns listed in the

charge." Id. at 436. This Court explained, however, that pursuant

to Supreme Court precedent in Griffin v. United States, 502 U.S.

46 (1991) and Turner v. United States, 396 U.S. 398, 420 (1970),

the "verdict shall not be set aside on this basis alone. Rather,

the verdict must stand so long as it is sufficiently supported by

the evidence concerning the third firearm." Id.

The same is true here. Even if the evidence as to

accomplice liability was not sufficient to support the verdict as

to Sweeney being the accomplice, the verdict must stand unless the

evidence is also insufficient as to the other theory of the case

included in the general verdict, i.e. that Sweeney was the

principal. "So long as all of the elements necessary to find

[Defendant] guilty of the crime, whether as a principal or as aider

or abetter, were put before the jury, conviction will be proper."

United States v. Rashwan, 328 F.3d 160, 165 (4th Cir. 2003).

Therefore, we affirm the conviction.

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E. Sentencing Challenge

At sentencing, the district court determined that based

on the sentencing guidelines, before adjusting for statutory

maximums, Defendant's guideline range was life in prison. In

imposing the sentence, the district court considered the statutory

minimum and maximum sentences as to both counts, fifteen years

minimum and forty years maximum for Count I, pursuant to 18 U.S.C.

§ 2252A(a)(2), and ten years minimum and twenty years maximum as

to Count II, pursuant to 18 U.S.C. § 2252A(a)(5)(b), and imposed

a below the guideline sentence of 204 months incarceration

(seventeen years). The district court explained that the sentence

"represents a balance between the Defendant's repeated conduct and

ongoing threat to the community."

On appeal, Defendant claims that his sentence violated

his Due Process rights under the Constitution and was overly harsh.

In support of this general assertion, he cites to several articles

discussing the increase in prison sentences for child pornography

offenders. Defendant claims that his sentence creates a "severe

discrepancy" for the convicted charge.

i. Constitutional Challenge

"We review this claim de novo because it turns on an

abstract legal proposition." United States v. Blodgett, 872 F.3d

66, 69 (1st Cir. 2017). "Once a person has been convicted, . . .

any punishment prescribed is consistent with the Due Process Clause

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as long as Congress had a rational basis for its choice of

penalties and the particular penalty imposed is not based on an

arbitrary distinction." Id. (internal quotation marks omitted).

Defendant appears to challenge both the application of

the statutory minimum sentencing requirement and the calculation

of his sentencing guideline range based on the enhancements.

Pursuant to 18 U.S.C. § 2252A(b)(1), Sweeney is subject to the

mandatory minimum sentence of fifteen years based on his prior

conviction of indecent assault and battery on a person under

fourteen years of age. In Blodgett, the Court addressed a

constitutional due process challenge to the mandatory minimum

sentence imposed pursuant to Section 2252(A)(b)(2) and explained

that the legislative history of the statute provides a basis to

conclude that Congress created a rational sentencing scheme. Id.

at 71. While Sweeney's mandatory minimum sentence is derivative

of section 18 U.S.C. § 2252A(b)(1), as compared to (b)(2), the

Court's determination in Blodgett as to the constitutional scheme

of the section is nonetheless applicable. As such, Defendant's

constitutional challenge cannot pass muster.

As to Defendant's contention that his sentence is

unconstitutional because it relies on enhancements that are

"duplicative," it is entirely unclear if he is making a

constitutional challenge to the sentence or a procedural one.

Regardless, "[w]e have said before . . . that [d]ouble counting in

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the sentencing context is a phenomenon that is less sinister than

the name implies." United States v. Chiaradio, 684 F.3d 265, 282–

83 (1st Cir. 2012) (second alteration in original) (internal

citations and quotation marks omitted). "The Sentencing

Commission has shown itself fully capable of expressly forbidding

double counting under the guidelines when appropriate," id., but

there is nothing in the guidelines that prohibits double counting

as to the enhancements used here. Nor does Defendant cite to any

cases in this Circuit that challenge the validity of these

enhancements. See id. ("We regard it as settled that when neither

an explicit prohibition against double counting nor a compelling

basis for implying such a prohibition exists, courts should be

reluctant to read in a prohibition where there is none." (internal

quotation marks omitted)).

Finally, Defendant's assertion that his sentence is

overly harsh fails to sufficiently present an argument that merits

review of the reasonableness of his sentence.

III. Conclusion

For these reasons, we affirm the conviction of the

Defendant and the sentence imposed by the district court.

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