United States v. Augustin Arce

USCA4 Appeal: 20-4557 Doc: 47 Filed: 09/08/2022 Pg: 1 of 25

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 20-4557

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

AUGUSTIN DANTE EZEQUIEL ARCE,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Arenda L. Wright Allen, District Judge. (2:18-cr-00121-AWA-LRL-1)

Argued: March 8, 2022 Decided: September 8, 2022

Before AGEE and RICHARDSON, Circuit Judges, and FLOYD, Senior Circuit Judge.

Affirmed in part, reversed in part, and remanded with instructions by published opinion.
Judge Richardson wrote the opinion, in which Judge Agee and Senior Judge Floyd joined.

ARGUED: James R. Theuer, JAMES R. THEUER, PLLC, Norfolk, Virginia, for
Appellant. Daniel Patrick Shean, OFFICE OF THE UNITED STATES ATTORNEY,
Norfolk, Virginia, for Appellee. ON BRIEF: Raj Parekh, Acting United States Attorney,
Alexandria, Virginia, Elizabeth M. Yusi, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.
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RICHARDSON, Circuit Judge:

After confessing and consenting to the search of his cellphone, Augustin Arce was

convicted at a bench trial of receiving and possessing child pornography found on his

phone. 1 He appeals, making six arguments.

He first argues that his confession was obtained in violation of his Miranda rights

because he was in custody when questioned. Second, he argues that introducing a report

detailing items downloaded from his phone violated his Sixth Amendment right to confront

witnesses because the report included testimonial statements that certain images were

likely child pornography. Third, he argues that evidence of other child-pornography

downloads associated with him—and testimony about this evidence—should not have been

admitted as improper character evidence. Fourth, he argues that testimony from Detective

Simpson offered improper lay-opinion testimony matching thumbnail photos to videos.

Fifth, he claims that the district court wrongly ordered restitution to a child-pornography

victim. And finally, he claims that the district court erroneously imposed certain

supervised release conditions, including a lifetime ban on internet and computer usage.

1
In this opinion, we use the conventional phrase “child pornography” to describe
the sexually explicit images of children. See 18 U.S.C. §2256(8). We do so even though
“child-sexual-abuse images” might be more accurate. Cf. Paroline v. United States, 572
U.S. 434, 440 (2014) (noting that the production of child pornography “involves child
abuse” and that child pornography is a permanent record of “the depicted child’s abuse”).
Our use of the more common phrase, child pornography, should not be taken to obscure
the fact that many of Arce’s images reflect the brutal sexual abuse of very young children.
See J.A. 1038 (describing images as prepubescent males and females engaged in sexually
explicit conduct, including sadistic and masochistic conduct along with bestiality).
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The totality of the circumstances of Arce’s questioning show Arce was not in

custody, so his Miranda rights were not violated. Although admitting the cellphone report

into evidence violated Arce’s Confrontation Clause rights, we find that error was harmless.

And the district court did not abuse its discretion in admitting evidence of past wrongs, in

allowing in Detective Simpson’s lay-opinion testimony, or in fashioning its restitution

order. But the lifetime ban on internet and computer usage is foreclosed by our caselaw.

So we reverse as to that condition and remand to the district court.

I. Background

In 2017–18, Ed Simpson, a Virginia Beach Police Department detective, was

working undercover for a Homeland Security Investigations task force where he connected

to a peer-to-peer file-sharing network to monitor the flow of child pornography. 2 He

observed various Internet Protocol addresses sharing child-pornography files. One IP

2
On a peer-to-peer file-sharing network, a person may download files directly from
the computers of other network users. Sometimes, the file can be broken into several pieces
and spread across several different computers; “torrents” contain the instructions necessary
to locate a file or all the pieces of a file. There is an understanding of reciprocity on these
networks; when someone downloads a file, it will be stored (until deleted) on a “shared”
folder. Other users can then download from that folder. Law enforcement uses a version
of the software that looks for complete illicit files—i.e., files that are not broken up into
multiple pieces and takes advantage of files stored in “shared” folders to track particular
users to files of child pornography. Investigators regularly do searches for known images
and videos of child pornography; if someone on these networks has recently downloaded
that file, the investigator can download it directly from that user’s “shared” folder. They
also can identify the user’s IP address (which can generally be thought of as a unique
identifier code for every internet connection). That IP address can then be used to find the
actual, physical address where the computer or phone was when the police downloaded the
file from it.
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address was linked to a house on Lord George Drive in Virginia Beach. And that house

belonged to Arce’s sister.

In May 2018, police served a warrant on the Lord George residence. Two agents

wearing bullet-resistant police vests knocked on the door. Arce answered and the officers

noted that they had a warrant. Arce, who was house-sitting for his sister at the time, asked

to put his dogs in the backyard, which an agent watched him do. The officers then brought

in four other search-team members. Arce’s friend, Christina Farmer, was upstairs when

the officers entered. The officers asked her to come downstairs into the kitchen. Once

Arce and Farmer were in the kitchen, the house was cleared, and the remaining search-

team members came in. The armed officers never drew their guns.

The officers testified they asked Arce and Farmer to sit at the kitchen table, to avoid

impeding the search. The officers denied that they ordered Arce and Farmer to do so,

which Arce and Farmer disputed. All agreed that an officer remained with Arce and Farmer

in the kitchen, and Arce and Farmer further claimed that they were always accompanied

by an officer—whether in the bathroom or getting dressed. The officers said that Arce and

Farmer were told they were “free to leave” the house, J.A. 345, but Arce and Farmer

claimed they were told to remain seated at the table. Arce and Farmer also said that they

were not allowed to speak with one another, although officers disputed that too.

After about 15 minutes, Detective Simpson and Agent Paul Wolpert asked Arce to

speak in the police vehicle, for “privacy[’s] sake.” J.A. 345. Detective Simpson sat in the

front seat with Arce while Agent Wolpert sat in the back to take notes. Before any

questioning, Detective Simpson again told Arce that “he was free to leave, [and] didn’t

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have to talk.” J.A. 392. Detective Simpson then asked Arce if he knew why they were

there and asked a series of questions that eventually led to Arce’s internet activity. He

asked if Arce had used peer-to-peer-file-sharing technology. When Arce responded that

he had, Detective Simpson “became a little more focused on him.” J.A. 394.

Detective Simpson then began questioning Arce about pornography in general and

asked whether Arce “had ever seen anything that he probably shouldn’t have,” J.A. 355, to

which Arce responded yes. Detective Simpson eventually asked Arce if he had seen

anything illegal. Arce responded yes, and Detective Simpson asked him about child

pornography. After Arce admitted to viewing child pornography, Detective Simpson then

Mirandized him. Arce denied this occurred. He claimed he was handcuffed and threatened

several times.

And after agreeing to continue speaking with the agents, Arce again confessed to

downloading child pornography. After Arce admitted that he viewed child pornography

on a phone in his apartment at Caribe Place, Arce was told that either he could grant

permission to search the apartment or officers could apply for a warrant. While Arce was

told several times that he did not have to consent, Arce granted permission to search by

signing a consent form. At the apartment, Arce used his key to open the door for the

officers. The officers first located a ZTE cellphone, but Arce said that phone contained no

child pornography. They then found an Alcatel Fierce cellphone under Arce’s mattress,

and Arce provided the security pattern to open the phone. Arce was then taken back to the

Lord George residence, about 2 hours after the police initially arrived.

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Arce was not arrested that day but was later indicted on four counts of receiving

child pornography under 18 U.S.C. § 2252(a)(2) and one count of possessing child

pornography under 18 U.S.C. § 2252(a)(4)(B). 3 The receipt counts were based on

knowingly receiving, in May 2018, four pornographic thumbnail images discovered on his

Alcatel phone, each with a nondescript file name (one, for example, was named

“1005.jpg”). 4 The possession count was not limited to any one file, but the government

focused on a thumbnail photo and three videos found on the phone. For the receipt and

possession charges, the government needed to prove that Arce knowingly

received/possessed the files, and that he knew them to be child pornography. § 2252(a)(2),

(a)(4)(B).

Before the trial, Arce sought to suppress the confession and seized evidence. After

an extensive hearing, the court found the officers’ testimony credible, finding a “wide

credibility gap between the parties’ testimony” and noting “serious doubt” about the

“veracity of Mr. Arce’s testimony.” J.A. 446. Under the “totality of the circumstances”

3
After indictment, the officers called Arce to ask him to turn himself in. But Arce
instead fled to California, near the Mexican border. When local officers responded to a
trespassing call, they encountered Arce, who falsely identified himself. Once they
determined his real identity, Arce was sent back to Virginia to face these charges.
4
A thumbnail is a reduced-size version of a frame in a video. Thumbnails aim to
provide a preview of a video, so users need not memorize their videos’ file names. If you
scroll through your videos in your smartphone and see an image with a “play” button over
it, that’s a thumbnail. Many websites use them too. See Ty E. Howard, Don’t Cache Out
Your Case: Prosecuting Child Pornography Possession Laws Based on Images Located in
Temporary Internet Files, 19 Berkeley Tech. L.J. 1227, 1240 & n.45 (2004). At trial, the
government argued that the thumbnails charged in the indictment were associated with
different unknown (and possibly since-deleted) pornographic videos or photos that Arce
downloaded at various times.
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standard, the court found defendant was not initially in custody during his interview.

J.A. 449–52. The court found that the defendant was twice told he was free to leave and

not under arrest, was provided Miranda warnings when he became a suspect, and under

these circumstances “a reasonable person would have felt free to cease cooperating and

refuse or terminate the interview.” J.A. 452. Finding that the defendant freely cooperated,

assisted, and consented to the search, the court rejected Arce’s claim that his consent was

coerced.

Arce asked for a bench trial, which he was given. At trial, the key issue was

knowledge: Did Arce know he was receiving and possessing child pornography? The

government, of course, emphasized Arce’s confession. Detective Simpson testified at trial

that he downloaded fifty child-pornography files from an IP address associated with the

Lord George residence from February through October 2017. 5 Another detective, Greg

Miller, introduced child pornography that he downloaded from an IP address associated

with Arce’s Caribe Place apartment in April and May 2018.

Detective Simpson also testified about a few other (uncharged) thumbnail photos

found on the Alcatel phone. Those photos were introduced into evidence, and Detective

Simpson explained that they matched videos (which were in evidence) that he downloaded

from the Lord George Drive IP address in 2017. This matching was probative because it

tied Arce to the pornography Detective Simpson downloaded from the Lake George Drive

IP address, countering Arce’s argument at trial that someone else was responsible for those

5
Arce’s brother-in-law testified that Arce lived at the Lord George house from early
2017 through February 2018.
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downloads. And Arce’s connection to the downloaded child pornography helped establish

that Arce knew the files were child pornography.

The government also called another agent, Montoya, as a lay witness to testify about

examining the Alcatel phone and other electronics seized from Arce’s apartment. Agent

Montoya introduced the charged child-pornography images from the Alcatel phone.

Agent Montoya also described using two programs, Cellebrite and Griffeye, to

extract files from the devices and analyze them. He used the Cellebrite software to extract

files and data from the phone including internet search terms and image-and-video files on

the phone. The extracted files were then fed into Griffeye, which uses a hashing algorithm

to identify unique images and match them with known child-pornography images. A

hashing algorithm generates for a given image an alphanumeric identifier, which,

essentially, is unique to that image. United States v. Ackerman, 831 F.3d 1292, 1294 (10th

Cir. 2016) (“[A] hash value [is] a sort of digital fingerprint.”). 6 It then compares that

image’s hash value to the hash values of database images that have been identified as child

pornography by law enforcement analysts. Based on this comparison, Agent Montoya used

Cellebrite to generate a report that classified certain images as child pornography.

Montoya also testified about the Alcala phone’s internet search history, which contained

many searches for keywords associated with child pornography.

6
Like DNA, fingerprints, and other identification evidence, hash values are not
foolproof. See Richard P. Salgado, Fourth Amendment Search and the Power of the Hash,
119 Harv. L. Rev. F. 38, 39 & n.6 (2005) (noting the chance of two different files sharing
a hash value is “astronomically small”); see also United States v. Wellman, 663 F.3d 224,
226 n.2 (4th Cir. 2011).
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After the district court rejected Arce’s motion for acquittal based on insufficient

evidence, the court found Arce guilty. The court later sentenced Arce to 130 months of

imprisonment and imposed restitution to a victim in one of the images, who uses the

pseudonym “Violet.” J.A. 997. Based in part on expert reports, which estimated Violet’s

healthcare costs, the court imposed a restitution amount of $5,000.

The court also imposed supervised-release conditions on Arce including a ban on

“employment or volunteer services that allow him access to computer[s] or minors,” “any

access to or possess[ion of] any pornographic material or pictures displaying nudity,” or

“possess[ion] or use [of] a computer to access any online computer services at any location,

including employment, without the prior approval of the probation officer.” J.A. 1002–03.

Arce timely appealed.

II. Discussion

A. Miranda Warning

The Fifth Amendment enshrines a right against self-incrimination. To protect this

right, our jurisprudence requires a Miranda warning be provided to suspects in custody

before an interrogation. United States v. Bernard, 927 F.3d 799, 805–06 (4th Cir. 2019)

(citing Miranda v. Arizona, 384 U.S. 436, 444 (1966)). This requirement does not apply

to all questioning, only to interrogations that are “custodial.” Miranda, 384 U.S. at 444.

Whether an individual is in custody is a fact-specific, objective inquiry into the

totality of the circumstances. United States v. Hargrove, 625 F.3d 170, 178 (4th Cir. 2010).

That inquiry asks whether a reasonable person would perceive his “freedom of action is

curtailed to a ‘degree associated with formal arrest.’” Berkemer v. McCarty, 468 U.S. 420,

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440, 442 (1984) (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam)).

Reviewing a district court’s denial of a motion to suppress, we review the “district court’s

legal determinations de novo and its factual conclusions for clear error.” United States v.

Shrader, 675 F.3d 300, 306 (4th Cir. 2012). In doing so, we construe the evidence in the

light most favorable to the government. Id.

The district court, having heard testimony from officers and Arce, found the officers

credible and held that Arce was not in custody before being read his Miranda warnings.

We find no clear error to overturn the court’s factual findings and, based on those findings,

affirm the district court’s conclusion. Two officers knocked on the door where Arce was

housesitting. Arce answered and let several officers in. Guns were never drawn, and Arce

was never physically restrained. The officers displayed a calm demeanor throughout but

kept Arce under observation during the house search, and the officers asked Arce to speak

with them while sitting in a police car’s front seat for less than an hour after telling Arce

he was free to leave. And the officers not only let Arce go after this interaction but allowed

him to turn himself in once they had a warrant for his arrest. Cf. United States v. Braxton,

112 F.3d 777, 781 (4th Cir. 1997) (stressing that Braxton “was not taken into custody even

after the interview” in finding his confession freely given). Based on the facts as found by

the district court and construing the evidence in the light most favorable to the government,

we agree with the district court’s conclusion that Arce was not in custody.

These facts track other cases in which this court has affirmed a district court’s

finding that the suspect was not in custody. See, e.g., United States v. Azua-Rinconada,

914 F.3d 319, 326 (4th Cir. 2019); Hargrove, 625 F.3d at 179–83; United States v. Nielsen,

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640 F. App’x 224, 227–28 (4th Cir. 2016) (unpublished). In Hargrove, for example, about

a dozen officers, some of whom were armed, executed a search warrant of the defendant’s

house. 625 F.3d at 179. As here, officers and Hargrove gave conflicting testimony about

whether officers told Hargrove he was “free to leave,” but the district court credited the

officers’ testimony. See id. Two other circumstances mirrored those here: Hargrove was

not handcuffed or under arrest at the time of the interview, and the interview occurred

“some time” after any control exercised during the protective sweep ended. See id. at 179–

80. And Hargrove involved several aggravating facts not present here: The officers there

drew their weapons at the inception of the search, and the search was of Hargrove’s own

home. See id. at 174. Given the totality of those circumstances, the interview was non-

custodial. Id. at 179–83.

And this case can be distinguished from cases in which we have found questioning

to be custodial. In United States v. Johnson, 734 F.3d 270, 275–76 (4th Cir. 2013), for

example, the defendant was also questioned in a patrol car, but unlike Arce, Johnson was

arrested and handcuffed first. And unlike the circumstances here, the officers in United

States v. Hashime, 734 F.3d 278, 280 (4th Cir. 2013), approached with a battering ram and

banged on the entrance before being let in. They then entered the defendant’s bedroom

with guns drawn, woke the naked defendant, led him by the arm in his boxer shorts to the

front lawn despite the cold weather, questioned him in a small basement storage room away

from his family for three hours, while still not allowing him to have shoes or socks, and

only read him his Miranda rights two hours into the interrogation. Id. at 280–81. In the

midst of that display of police force and control, the police did tell Hashime he could leave

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at any time, that he didn’t need to answer questions, and that he could use the bathroom.

Id. at 283. The Hashime court said that factors like those “cut against custody,” though

they can be outweighed by an hours-long interrogation, guns-drawn commands, and other

aggressive police behavior. Id. at 285. But this case does not involve the extreme

behaviors that tipped the scales in Hashime. 7

Arce’s argument relies substantially on the fact that officers kept Arce under

observation while he was in the house during the search. But considering the totality of

the circumstances, that fact does little to establish that Arce’s freedom of action would be

reasonably perceived as curtailed to a degree associated with formal arrest. Keeping an

eye on Arce helped ensure the integrity of the search and safety of the officers. And if

7
United States v. Colonna, 511 F.3d 431 (4th Cir. 2007), is also distinguishable.
There, we held the defendant’s Miranda rights were violated. Id. at 436. And on its
surface, the case seems like ours. In the early morning hours, twenty-five FBI agents
executed a warrant on a home looking for child pornography; they woke the defendant at
gunpoint, told him to get dressed, and proceeded to search the home while guarding the
defendant and his family. Id. at 433. An agent asked to talk to the defendant in an FBI
vehicle but told him that he “was not under arrest,” and the defendant later admitted to
possessing child pornography. Id. But the case is factually distinct. There, “the agents
did everything short of actually, physically restraining [Colonna] to make him, or any
reasonable man, believe that he was not free to leave.” Id. at 435–36 (quoting district
court). But the district court determined that telling Colonna he “was not under arrest” was
enough to remedy the Miranda issue, despite the totality of the circumstances suggesting
a custodial interrogation; permitting that one fact to swamp the others, we held, was legal
error. Id. at 436. Here, the conclusion that under the totality of the circumstances, a
reasonable person would have thought he was free to leave is well-supported by factual
differences between the two cases: Colonna was awoken at gunpoint, while here guns were
never drawn; Colonna’s own house was being searched, while Arce could have simply
returned to his apartment if he wished; and Colonna “was never told that he was free to
leave or that he did not have to respond to questions,” id., but Arce was told exactly that.
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Arce had exercised his option to leave the house during the search, observation would not

have been necessary. So we affirm the district court’s denial of Arce’s motion to suppress. 8

B. Confrontation Clause

Agent Montoya, testifying as a lay witness, introduced several Cellebrite Reports

that reflected information extracted from Arce’s electronic devices. Arce does not

challenge the admission of the charged child-pornography images. He instead argues that

introducing the reports—which included all the information extracted from the phone, not

just the charged images—violated his rights under the Sixth Amendment’s Confrontation

Clause. Though most of those reports contained only non-testimonial evidence that is not

implicated by the Confrontation Clause, one report included testimonial statements

categorizing images as likely child pornography. And that was improper. But in the

context of this trial, we find that error harmless.

When statements are introduced against the defendant at a criminal trial, the

defendant has a right to confront the witness, but this right “is only implicated in the context

of testimonial statements.” United States v. Benson, 957 F.3d 218, 230 (4th Cir. 2020); see

Crawford v. Washington, 541 U.S. 36, 51 (2004). In contrast, a non-testimonial statement,

“while subject to traditional limitations upon hearsay evidence, is not subject to the

Confrontation Clause.” United States v. Washington, 498 F.3d 225, 229 (4th Cir. 2007)

(quoting Davis v. Washington, 547 U.S. 813, 821 (2006)).

8
To the extent that Arce contends that his consent to search the apartment was
invalid even if the confession was lawfully obtained, we reject that claim because the facts
found by the district court show his actions were voluntary.
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A testimonial statement exists where “a reasonable person in the declarant’s position

would have expected his statements to be used at trial—that is, whether the declarant would

have expected or intended to bear witness against another in a later proceeding.” Benson,

957 F.3d at 228 n.7 (quoting United States v. Dargan, 738 F.3d 643, 650 (4th Cir. 2013)).

It can be difficult to apply this standard to technical reports. See Stephen Aiken, Autopsy

Reports, the Confrontation Clause, and a Virtual Solution, 53 Jurimetrics J. 213, 213–14

(2013). But in general, when “machines generate[] data . . . through a common scientific

and technological process,” the operators of those machines do not make a “statement”

under the Confrontation Clause when reporting the data. Washington, 498 F.3d at 230.

But characterizations of, or conclusions drawn from, the data are statements. See id. at

230–31; United States v. Moon, 512 F.3d 359, 362 (7th Cir. 2008) (“[T]he Confrontation

Clause does not forbid the use of raw data produced by scientific instruments, though the

interpretation of those data may be testimonial.”).

To understand whether a Cellebrite report contains testimonial statements, we must

understand how Cellebrite works. First, the officer downloads all the information from a

phone. Cellebrite then lumps the downloaded information into different categories like

texts, browser history, and videos and images. Those files are then viewable in a report or

on a computer.

Often this is the extent of a Cellebrite report. And a Cellebrite report that stopped

at downloading the files would not typically implicate the Confrontation Clause. But often

in child-pornography cases, as in this case, officers use a hashing algorithm to create a hash

value—a unique digital fingerprint—for each image or video file. The resulting hash value

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is unique to that file. Ackerman, 831 F.3d at 1294; United States v. Wellman, 663 F.3d

224, 226 n.2 (4th Cir. 2011). And the use of that hash value may lead to a testimonial

statement.

The hash value of a file standing alone does little; it too is just raw data. But if two

hash values match, that is excellent evidence that two images are identical. So the

significance of a file’s hash value arises when the value is compared to a database

containing “known” child-pornography images. Here, Agent Montoya compared the hash

values of images from Arce’s phone to a database of “known” child-pornography images

that Griffeye created using input from law enforcement officers. Those officers categorize

images as child pornography and then provide those images to Griffeye so their hash values

may be placed in its known-child-pornography database. If a file’s hash value matches

with one in the Griffeye set, then the Cellebrite report reflects that the file is likely child

pornography.

In the Cellebrite report at issue here, one column reflected, based on hash value,

which images or videos are “Child Abuse Material (CAM)” or “Child Exploitation

Material (non-CAM)/Age Difficult.” In the excerpt below—with the thumbnail

redacted—the first file is not identified as a match, the second is identified as “Child

Exploitation Material (non-CAM)/Age Difficult” and the third is identified as “Child

Abuse Material (CAM).”

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Each of these statements that a given image is Child Exploitation Material or Child

Abuse Material depends on two premises. First, that the images in the Griffeye database

are really child exploitation or abuse material. This conclusion derives from unknown law

enforcement officers’ judgments that certain images qualify. The second premise is that

the hash value of one of the known images matches that of an image found in the Cellebrite

download.

It is the first of these premises that creates a Confrontation Clause problem. The

second premise—the hash values match—may just be the kind of machine-generated data

from a common technological process that is non-testimonial. See Washington, 498 F.3d

at 230 & n.2. But the first premise—a given image in the Griffeye database is child

exploitation or abuse material—is classic testimonial evidence. That conclusion depends

on the judgment of law enforcement that a given image is child pornography. And that

judgment is made for the purpose—or at least the foreseeable result—of identifying and

prosecuting criminal cases. So the statements in the Cellebrite report identifying a given

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image is Child Exploitation Material or Child Abuse Material are testimonial. And

including those testimonial statements violated Arce’s Confrontation Clause rights. 9

This error is subject to harmless-error analysis. When an evidentiary issue is also a

constitutional issue, as here, we can only affirm if it is clear beyond a reasonable doubt that

a rational fact finder would have found the defendant guilty absent the error. United States

v. Moriello, 980 F.3d 924, 937 (4th Cir. 2020). Admitting the offending portion of the

Cellebrite report—the connection between the images and the Griffeye database—was

harmless. It was duplicative of the actual evidence—graphic images of prepubescent

victims, who the court described as being “between the ages of probably 4 and 6.” J.A.

912; see also J.A. 629. And Agent Montoya permissibly offered lay-opinion testimony

that he viewed these images and found them to be child pornography.

The overwhelming evidence established that the charged images were child

pornography. It is thus clear beyond a reasonable doubt that the judge would have found

Arce guilty without the report’s statements that a given image was Child Exploitation

Material or Child Abuse Material. The error was therefore harmless.

C. Character Evidence

The Government also introduced evidence of child pornography distributed by the

Lord George Drive IP address. That is the evidence that provided the basis for the search

warrant. In 2017, Detective Simpson acted undercover to observe the sharing of child

9
Arce’s argument on appeal that admitting the Cellebrite reports for the iPad Mini
(Government Exhibit 28) and the ZTE cellphone (Government Exhibit 29) violated the
Confrontation Clause fails. Neither of those reports included actual child pornography,
and thus did not include the information that we find to be testimonial.
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pornography online. In doing so, he downloaded two child-pornography videos from a

certain IP address. Logs obtained by subpoenaing an internet service provider showed the

IP address was linked to the Lord George Drive residence (and thus Arce). The district

court found those two videos, and the associated internet logs, were admissible. We agree.

This evidence was admissible under Rule 414(a), which provides that, “[i]n a

criminal case in which a defendant is accused of child molestation, the court may admit

evidence that the defendant committed any other child molestation. The evidence may be

considered on any matter to which it is relevant.” Fed. R. Evid. 414(a). And the Rule

defines “child molestation” to include child-pornography offenses (i.e., “any conduct

prohibited by 18 U.S.C. chapter 110”). Fed. R. Evid. 414(d)(2)(B). Rule 414—unlike

Rule 404(b)—allows the admission of evidence for the purpose of establishing propensity

to commit other sexual offenses. United States v. Kelly, 510 F.3d 433, 437 (4th Cir. 2007).

So even if the offered videos only helped establish propensity, they were properly admitted.

Arce does not disagree, instead arguing that the Government failed to provide notice

of its intent to introduce the evidence under Rule 414 fifteen days before trial. See Fed. R.

Evid. 414(b). Arce seeks to read into Rule 414 a requirement analogous to that in Rule

404(b)(3) that a separate notice be provided before Rule 414 may be used to introduce

evidence. In a criminal case, Rule 404(b)(3)—governing “Other Crimes, Wrongs, or

Acts”—requires a “notice” of any such evidence that details, “in writing before trial,” the

“permitted purpose,” and “reasoning that supports the purpose” for introducing the

evidence.

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Unlike Rule 404, Rule 414 only requires disclosing the evidence fifteen days before

trial: “If the prosecutor intends to offer this evidence, the prosecutor must disclose it to the

defendant . . . .” Fed. R. Evid. 414(b) (emphases added). Any ambiguity about the

meaning of “it” is cleared up by a list of examples of what the prosecutor must disclose,

which “include[s] witnesses’ statements or a summary of the expected testimony”—and

those are types of evidence not statements of intent or purpose. Id. Thus, the more specific

Rule 414(b) covering child-molestation evidence only “requires disclosure of the evidence

itself.” See United States v. Benais, 460 F.3d 1059, 1062 (8th Cir. 2006) (construing Rule

413(b), which is identical to Rule 414(b)); see also United States v. Delorme, 964 F.3d

678, 683 (8th Cir. 2020) (“Rule 414(b) does not require that the Government provide notice

of intent to use the evidence.”). And here the evidence itself was disclosed months before

trial. So it was properly admitted under Rule 414.

D. Lay-Opinion Testimony

Arce also objected to Detective Simpson’s lay-opinion testimony that several

uncharged thumbnail images on Arce’s cellphone appeared to come from the two videos

the detective downloaded from the Lord George Drive IP address in 2017. This would

show that Detective Simpson had downloaded those videos from Arce, making it more

likely that Arce was aware of the nature of other videos and images on his phone.

Federal Rule of Evidence 701 permits lay-opinion testimony where the opinion is

“(a) rationally based on the witness’s perception; (b) helpful to clearly understanding the

witness’s testimony or to determining a fact in issue; and (c) not based on scientific,

technical, or other specialized knowledge” that would qualify as expert testimony within

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the scope of Rule 702. That opinion must be “based on personal knowledge.” United

States v. Johnson, 617 F.3d 286, 292 (4th Cir. 2010). And we review the admission of

evidence for abuse of discretion. Id.

Detective Simpson’s opinion was based on his personal experience, as he had

viewed the two videos and compared them to the thumbnails. But Arce argues that the

testimony was not actually “helpful to a clear understanding,” because Detective Simpson

was no better able to make the comparisons than the judge sitting as trier-of-fact. See Fed.

R. Evid. 701. We appropriately give wide discretion to a judge sitting as a fact finder to

determine whether testimony would help that judge’s understanding. See Sun Yung Lee v.

Clarendon, 453 Fed. App’x 270, 278 (4th Cir. 2011) (quoting Mercado v. Austin Police

Dep’t, 754 F.2d 1266, 1269 (5th Cir. 1985)).

The district court did not abuse its discretion by allowing this testimony, given that

this was a bench trial and the government offered it—or at least conceded it should only

be offered—to point out specific points of comparison, within a sea of other evidence, for

the judge sitting as trier-of-fact. 10

10
We also reject Arce’s challenge to the sufficiency of the evidence. Arce argues
that there is insufficient evidence that he knew the files he received and possessed were
child pornography. In support, he points out that Agent Montoya could not say whether
the charged thumbnails were created by playing the source videos or by failed attempts to
play them. It is true that, depending on the device, a thumbnail might not be evidence of
any user action to play a video. Many phones and computers generate a thumbnail image
for a video automatically as the user scrolls past it in a file explorer—or in some cases,
even if the user never does anything. See generally Ming Di Leom, Christian Javier
D’orazio, Gaye Deegan & Kim-Kwang Raymond Choo, Forensic Collection and Analysis
of Thumbnails in Android (2015). However, whether or not Arce played the videos, there
was ample evidence introduced at trial that Arce knew the files were child pornography—
(Continued)
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E. Restitution

The court ordered restitution to “Violet,” a pseudonym for a known child-

pornography victim who was portrayed in an illegal image in Arce’s possession. Based on

a pediatrician’s report, a psychologist’s report, and other evidence, the district court

awarded $5,000 of restitution.

“We review a restitution order for abuse of discretion.” United States v. Llamas,

599 F.3d 381, 387 (4th Cir. 2020). Fashioning appropriate restitution remedies for child-

pornography victims is not “a precise mathematical inquiry and involves the use of

discretion.” Paroline v. United States, 572 U.S. 434, 459 (2014). Courts “might, as a

starting point, determine the amount of the victim’s losses [and] then set an award of

restitution in consideration of factors that bear on the relative causal significance of the

defendant’s conduct in producing those losses.” Id. at 460. And even though Paroline laid

out a list of factors that a district court might consider, “the guideposts the Supreme Court

articulated were suggestions rather than prerequisites.” United States v. Dillard, 891 F.3d

151, 161 (4th Cir. 2018).

the search-term history on the phone, Arce’s confession, and the sheer volume of child
pornography downloaded at multiple addresses where Arce lived. From that admissible
evidence, a reasonable trier of fact “could have found the essential elements of the crime
beyond a reasonable doubt.” See Coleman v. Johnson, 566 U.S. 650, 654 (2012) (per
curiam) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
Arce also sought to file a pro se brief in this court challenging the reasoning of the
district court’s fact-finding. His arguments would not be enough to disturb the district
court’s fact-finding even if we accepted the motion. But we deny the motion, because
litigants represented by counsel are not entitled to file pro se briefs. See United States v.
Penniegraft, 641 F.3d 566, 569 n.1 (4th Cir. 2011).
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Here, it may be true that the expert reports the court relied on were somewhat

imprecise, somewhat speculative, and somewhat duplicative. See United States v. Moody,

CR 417-256, 2018 WL 3887506, at *5 (S.D. Ga. Aug. 15, 2018) (discussing another

restitution request for the same “Violet,” and noting problems with these reports). But

calculating this restitution is an inherently imprecise task. See Paroline, 572 U.S. at

459–60. Indeed, it may seem unusual to call this “restitution” given the imprecise nature

of the payment and the hazy causal relation of the offense to the harm suffered. But some

form of financial compensation is required by statute, see 18 U.S.C. § 2259, and Paroline

requires that the district court seek to come up with a number, however difficult that might

be. Given that the district court considered the relevant evidence and Paroline factors in

determining the appropriate restitution and given the task’s inherent imprecision, we find

the district court acted within its broad discretion.

F. Supervised-Release Conditions

Arce challenges five supervised release conditions, which amount to a lifetime ban

on internet and computer use (Special Conditions 7, 13, and 15), a lifetime ban on access

to pictures of nudity (Special Condition 8), and a lifetime ban on contact with minors

(Special Conditions 7 and 9). We reverse the conditions implementing a ban on internet

and computer use, uphold the condition establishing a ban on images of nudity, and clarify

that the conditions banning contact with minors does not include unintentional contact.

Supervised release conditions must be “(1) ‘reasonably related’ to the nature and

circumstances of the offense, . . . and the statutory goals of deterrence, protection of the

public, and rehabilitation; (2) ‘no greater [a] deprivation of liberty than is reasonably

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necessary’ to achieve those statutory goals; and (3) consistent with any relevant policy

statements issued by the Sentencing Commission.” United States v. Ellis, 984 F.3d 1092,

1098 (4th Cir. 2021) (second alteration in original) (quoting 18 U.S.C. § 3583(d)). A

condition is “reasonably necessary” if it is “the least restrictive alternative to achieve the

statutory purposes.” Id. at 1104. There is little doubt the ban on internet and computer

usage is reasonably related to his underlying offenses, but it is rarely the least restrictive

alternative. See id.

Accordingly, a complete internet ban is almost always excessive for “non-contact

child pornography activity, or similar conduct” where there was no actual contact with the

victim. See United States. v. Hamilton, 986 F.3d 413, 421–22 (4th Cir. 2021) (quoting

Ellis, 984 F.3d at 1105). This case did not involve contact with children, so we reverse the

conditions implementing the internet ban and remand to the district court. The district

court may still set other computer restrictions that are more appropriately tailored to this

case. See Ellis, 984 F.3d at 1104 (suggesting less-restrictive examples); United States v.

Holm, 326 F.3d 872, 878 (7th Cir. 2003) (“Various forms of monitored Internet use might

provide a middle ground between the need to ensure that [the defendant] never again uses

the Worldwide Web for illegal purposes and the need to allow him to function in the

modern world.”). But it cannot impose a total ban absent exceptional circumstances the

district court must explain in detail.

A ban on access to pornography is acceptable where “restriction on sexually

stimulating material [is] necessary to treat [the defendant]’s addiction and to deter him

from future crimes.” United States v. Van Donk, 961 F.3d 314, 323 (4th Cir. 2020). And

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while district courts must justify their post-release conditions, in some cases “the reason

for it [is] so self-evident and unassailable” that no remand is required. United States v.

McMiller, 954 F.3d 670, 677 (4th Cir. 2020). Here, the reason for prohibiting Arce from

accessing pornography is obvious. It was done based on his self-admitted pornography

addiction, which eventually escalated into viewing child pornography. So it was not an

abuse of discretion to impose this condition.

Finally, given the increasing extremity of the material he viewed, and his own

admission that sexual abuse runs in his family, the conditions implementing a prohibition

on unapproved contact with minors are reasonable to protect the public. See Hamilton, 986

F.3d at 423. But on remand, the district court should make clear that this restriction does

not include incidental or unintentional contact. See United States v. Whitten, 846 F. App’x

177, 177 (4th Cir. 2021) (per curiam) (unpublished). And the district court should also

clarify the meaning of “access” for employment contained in Special Condition 7—for

instance, if Arce works at a fast-food restaurant, that incidental contact with a minor at the

order counter would not be prohibited.

* * *

Looking at the totality of the circumstances of his interview, Arce’s Miranda rights

were not violated because he was not in custody. While the inclusion of the Cellebrite

report violated his Confrontation Clause rights, the error was harmless. We cannot say that

the district court acted unreasonably in convicting based on the evidence, nor can we say

allowing Detective Simpson’s testimony or allowing prior-act evidence constituted

reversible error. The court also did not abuse its discretion in its restitution order. But the

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lifetime ban on internet and computer usage is foreclosed by our precedent given the nature

of Arce’s crimes, so we remand for reconsideration of the conditions of supervised release.

In doing so, we note that, while the restriction on contact with minors is reasonable, it

should not include incidental or unintentional contact. The decision is therefore

AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED
WITH INSTRUCTIONS.

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