NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-1569
_____________
UNITED STATES OF AMERICA
v.
CHRISTOPHER STEELE,
a/k/a MIKE DOZOR
Christopher Steele,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(District Court No.: 2-14-cr-00110-001)
District Judge: Honorable Juan R. Sanchez
Submitted under Third Circuit L.A.R 34.1(a)
on November 7, 2016
Before: JORDAN, GREENAWAY, JR. and RENDELL, Circuit Judges
(Opinion filed: November 29, 2016)
O P I N I O N*
RENDELL, Circuit Judge:
Christopher Steele was convicted by a jury of charges related to his
communication and sexual contact with a minor. He now appeals the trial court’s denial
of his motions for judgment of acquittal and a new trial. Because there was sufficient
evidence for a jury to convict Steele of knowingly receiving child pornography, and
because the trial court’s refusal to grant a new trial was not plain error, we will affirm.
I. Facts
In the summer of 2013, Christopher Steele began interacting with a minor on the
gay social networking cell phone application “Jack’d.” Although the minor indicated he
was eighteen in his Jack’d profile, in conversation on Jack’d he told Steele that he was
actually fourteen. Shortly after the two began conversing, Steele traveled from his
residence in Delaware to the minor’s home in Pennsylvania, where the two engaged in
oral and anal sex. After the encounter, the minor sent Steele two explicit photographs
using the Jack’d application.
In October of 2013, the minor’s parents discovered Steele’s digital
communications with their son. They contacted the police, who interviewed the minor.
After the police’s initial investigation into the matter, the minor identified Steele in a
photo array as the man with whom he had had sexual contact.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
2
Police arrested Steele. Steele waived his Miranda rights, and in a videotaped
interview he admitted that he had talked with the minor on Jack’d and that he had
traveled to the minor’s home where he had sex with him. He also confessed that the
minor told him he was fourteen years old before the two met in person.
Officers then seized Steele’s cell phone. Forensic examination of the cell phone
revealed one image of the minor with his legs spread so that his private area was exposed.
Records obtained from Steele’s Jack’d account revealed a second photograph, in which
the minor was wearing only underwear, positioned with his legs pulled back so that his
genitals could be seen. In both pictures, the minor’s face was visible.
At trial, an FBI agent testified that cell site data showed Steele’s cell phone
traveling from Delaware to the minor’s home on the morning that Steele and the minor
allegedly had sex. Steele’s mother testified that she was the subscriber for the cell phone
account and that she gave Steele the cell phone. The minor testified that he had told
Steele he was only fourteen, that he had sexual intercourse with Steele, and that shortly
thereafter he sent Steele two explicit photographs using Jack’d.
A computer forensic expert testified about how he recovered the two explicit
images of the minor. However, he was unable to testify in detail about how Jack’d
operated on differing smartphone interfaces. He also testified that only one of the two
explicit photos was stored directly on the cell phone’s memory.
Steele testified in his own defense. He asserted that twelve to fifteen people had
access to his email accounts and passwords and that any of these individuals could have
accessed his Jack’d account. He further testified that he did not recall interacting with the
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minor. Steele testified that his confession to police was a lie and that he had only
confessed to the crime to protect his ex-partner.
The jury convicted Steele of (1) using an interstate commerce facility to entice a
minor to engage in sexual conduct, in violation of 18 U.S.C. § 2422(b); (2) interstate
travel with intent to engage in illicit sexual conduct with a minor, in violation of 18
U.S.C. § 2423(b), and (3) receipt of child pornography, in violation of 18 U.S.C. §
2252(a)(2).
Steele raised two post-trial motions: one for acquittal based on insufficiency of the
evidence on the charge of receipt of child pornography, and one for a new trial due to the
prosecution’s allegedly improper closing remarks.
In response, the District Court Judge first dismissed Steele’s motion for acquittal
based on the sufficiency of the evidence. He pointed to evidence allowing the jury to
conclude beyond a reasonable doubt that Steele knowingly received images depicting a
minor engaging in sexually explicit conduct.
Second, the Judge turned to the motion for a new trial. As background: prior to the
trial, the government had moved to bar evidence of the minor’s other sexual behavior or
sexual predisposition pursuant to Federal Rule of Evidence 412. Steele failed to respond,
so the court granted the motion. At trial, Steele attempted to ask a detective about a
conversation the minor had with Steele’s ex-partner. Because Steele’s ex-partner also had
sexual contact with the minor, the government successfully objected to the question
under the Rule 412 order.
4
Later, after Steele testified that he had lied in the videotaped confession to protect
his ex-partner, defense counsel reiterated in closing that Steele had confessed to the
crimes to protect his ex-partner. In rebuttal closing, the government said in reference to
the ex-partner that Steele “never named this person, he never gave him information, he
was never called as a witness and the defense doesn’t have to do any of that, because
that’s the Government’s burden at all time [sic].” Steele did not object to the remark at
the time it was made.
The District Court denied the motion for a new trial, finding that the prosecutor’s
remarks did not infect the trial with unfairness so as to amount to a denial of due process.
The Court described the considerable evidence pointing towards Steele’s guilt. The
District Court Judge further noted that Steele himself injected his ex-partner into the trial,
and the government’s response was not entirely unfair. Finally, he found that any harm
from the prosecution’s brief reference to Steele’s ex-partner was cured by the court’s jury
instructions before and after closing arguments. Steele timely appealed.
II. Discussion
We have jurisdiction under 28 U.S.C. § 1291. The District Court had jurisdiction
pursuant to 18 U.S.C. § 3231.
(A) Receipt of Child Pornography
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Steele first argues that there was insufficient evidence to support his conviction of
receipt of child pornography, 18 U.S.C. § 2252(a)(2),1 and thus his motion for a judgment
of acquittal should have been granted.
We review sufficiency of the evidence rulings de novo, but our standard of review
for even a preserved objection to sufficiency of the evidence is nevertheless “highly
deferential.” United States v. Caraballo-Rodriguez, 726 F.3d 418, 430 (3d Cir. 2013) (en
banc). The question is whether any “reasonable juror could accept the evidence as
sufficient to support the conclusion of the defendant’s guilt beyond a reasonable doubt.”
Id. at 430–31 (quoting United States v. Coleman, 811 F.2d 804, 807 (3d Cir. 1987)). As
an appellate court, we “‘must be ever vigilant . . . not to usurp the role of the jury by
weighing credibility and assigning weight to the evidence, or by substituting [our]
judgment for that of the jury.’” Id. at 430 (quoting United States v. Brodie, 403 F.3d 123,
133 (3d Cir. 2005)).
Under this deferential standard of review, we have no difficulty upholding the
ruling below.
There was significant evidence supporting Steele’s conviction, more than enough
for a jury to have concluded Steele knowingly received child pornography. First, the
minor testified that he sent the photos to Steele via Jack’d and communicated with him
1
§ 2252(a)(2) sanctions “[a]ny person who . . . knowingly receives, or distributes, any
visual depiction using any means or facility of interstate or foreign commerce or that has
been mailed, or has been shipped or transported in or affecting interstate or foreign
commerce . . . if —
(A) the producing of such visual depiction involves the use of a minor engaging in
sexually explicit conduct; and
(B) the visual depiction is of such conduct . . . .
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on the application; Steele confessed that he interacted with the minor on the application.
Second, one of the two photos was recovered from Steele’s Jack’d account. The other
was found directly in Steele’s phone’s memory. Cf. United States v. Franz, 772 F.3d 134,
156 (3d Cir. 2014) (evidence that photo was downloaded and saved to external hard drive
supported conviction for knowing receipt of child pornography).
While Steele makes much of the fact that many other individuals had access to his
phone and accounts, the jury heard—and apparently disregarded—this evidence. We will
not substitute our judgment for theirs. See Caraballo-Rodriguez, 726 F.3d at 430. This is
especially true where, as here, clear evidence supports the jury’s conclusion: Steele’s cell
phone was taken from Steele at the time of arrest, and Steele’s mother testified that she
gave him the cell phone.
Steele further stresses that Jack’d was a website for adults only, and thus he could
not have known the minor was underage, especially given the relatively limited size of
the cell phone screen. However, his own interactions with the minor, the nature of the
photographs, and the minor’s testimony left the jury free to disagree.
Finally, Steele argues that the government did not prove that Jack’d did not
automatically preserve the images on Steele’s cell phone, and thus there was insufficient
evidence to support his conviction. While internet technology has presented thorny legal
issues with respect to crimes involving receipt of child pornography, see, e.g., United
States v. Romm, 455 F.3d 990, 999–1000 (9th Cir. 2006), here we need not enter that
thicket.
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We find our reasoning in United States v. Miller, 527 F.3d 54 (3d Cir. 2008)
instructive. There, we held that a reasonable jury could have concluded that a defendant
knowingly received child pornography, despite a lack of direct forensic evidence as to
how the images were transferred onto the defendant’s computer. See id. at 67–69. We
noted that while the defendant’s computer may have transferred the relevant files
automatically onto the zip disk at one point, evidence suggested that the computer’s user
may have been responsible for other transfers to a zip disk. Id. at 69.
So, too, here, despite a lack of testimony as to precisely how Jack’d functioned,
there was sufficient evidence for the jury to find as it did. One of the two photos
remained on Steele’s cell phone four months after Steele and the minor met, stored in the
device’s memory. This photo had apparently been handled differently than the other
photo of the minor, allowing an inference that it had been downloaded or otherwise non-
passively transferred onto Steele’s phone from the Jack’d application. This fact,
combined with the minor’s young appearance and Steele’s personal knowledge of the
minor’s age, provided more than enough evidence to support the jury’s finding. Thus, the
motion for a judgment of acquittal was properly denied.
(B) Motion for a New Trial
When, as here, the defendant has failed to object to the prosecutor’s closing
remarks at trial, we review the decision declining to grant him a new trial for plain error.
See United States v. Hakim, 344 F.3d 324, 328 (3d Cir. 2003).
The defendant bears the heavy burden of proving plain error. United States v.
Olano, 507 U.S. 725, 734–35 (1993). He must show that (1) there is “error,” (2) that it is
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“plain,” and (3) that the error affected substantial rights. Hakim, 344 F.3d at 328
(quotations and citation omitted). Even when these elements are present, the decision to
award relief still remains in our discretion. See id. This discretion is to be exercised when
the error “‘seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.’” Id. (quoting Johnson v. United States, 520 U.S. 461, 467 (1997)).
Even if Steele had raised the objection, we would grant him a new trial only if he
was prejudiced by the allegedly improper remarks. United States v. Helbling, 209 F.3d
226, 241 (3d Cir. 2000).2 “In determining prejudice, we consider the scope of the
objectionable comments and their relationship to the entire proceeding, the ameliorative
effect of any curative instructions given, and the strength of the evidence supporting the
defendant’s conviction.” United States v. Zehrbach, 47 F.3d 1252, 1265 (3d Cir. 1995).
Accordingly, we first consider the allegedly objectionable comments themselves.
The Court’s in limine Rule 412 order effectively prevented Steele from giving any details
about his ex-partner, who also had sexual contact with the minor. But after Steele
mentioned his ex-partner on the stand and his counsel did so in closing,3 the prosecution
faulted him in closing rebuttal for failing to provide any details about the ex-partner.
We need not probe the government’s comments too deeply, because to the extent
they were improper, they did not prejudice Steele. Certainly they did not “seriously affect
the fairness, integrity or public reputation of judicial proceedings.” Hakim, 344 F.3d at
2
Where, as here, the alleged error is non-constitutional, we affirm when it is “‘highly
probable that the error did not contribute to the judgment.’” Helbling, 209 F.3d at 241
(quoting Gov’t of Virgin Islands v. Toto, 529 F.2d 278, 284 (3d Cir. 1976)).
3
The District Court noted that Steele’s counsel’s discussing his ex-partner in closing was
“in violation” of the Court’s Rule 412 order. J.A. 23–24.
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328 (quoting Johnson, 520 U.S. at 467). The evidence against Steele was strong: a
screen shot of Steele’s communication with the minor; testimony of the minor; evidence
recovered from Steele’s phone; cell phone site data placing Steele at the victim’s house;
and a videotaped confession providing accurate details of the encounter, including details
not available in the affidavit of probable cause. Further, the District Court gave a curative
instruction that the attorneys’ statements were not evidence and the burden of proof
rested with the government, ameliorating potential harm from the prosecutor’s remarks.
Under these circumstances, the District Court did not err—and certainly did not
plainly err—in declining Steel’s request for a new trial. Cf. Helbling, 209 F.3d at 241–42
(significant evidence of guilt and curative instructions neutralized prejudice despite the
prosecutor’s “inappropriate” and “out of line” comments).
III. Conclusion
For the aforementioned reasons, we will affirm the District Court’s denial of both
Steele’s motion for a new trial, and his motion for judgment of acquittal.
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