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United States v. Nance

United States Court of Appeals, Tenth Circuit

September 23, 2014

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
JORY MICHAEL NANCE, Defendant - Appellant

Appeal from the United States District Court for the Western District of Oklahoma. (D.C. No. 5:12-CR-00267-HE-1).

Jacob L. Rowe, Oklahoma City, Oklahoma, for Defendant-Appellant Jory Michael Nance.

Brandon T. Hale, Assistant United States Attorney (Sanford C. Coats, United States Attorney and Chris M. Stephens, Assistant United States Attorney, with him on the brief), Oklahoma City, Oklahoma, for Plaintiff-Appellee United States of America.

Before BRISCOE, Chief Judge, EBEL, and MATHESON, Circuit Judges.

OPINION

Page 1038

EBEL, Circuit Judge.

A jury convicted Defendant-Appellant Jory Nance of multiple counts of transporting child pornography and receiving or attempting to receive child pornography. He challenges those convictions, contending 1) the district court erred in admitting evidence of his uncharged bad acts under Federal Rule of Evidence 404(b)(2); and 2) there was insufficient evidence for a jury to find that he attempted to receive child pornography. Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM.

I. BACKGROUND

Viewed in the light most favorable to the Government, see United States v. Battles, 745 F.3d 436, 453 (10th Cir. 2014), the evidence at trial established the following. Using peer-to-peer file-sharing software, Nance downloaded child pornography on his laptop computer from sometime in 2009 through April 2012. He also used this software to share child pornography with others, including an Edmond, Oklahoma detective who was able to download eight files containing child pornography from Nance during March and April 2012. This resulted in the United States charging Nance with eight counts of transporting child pornography, in violation of 18 U.S.C. § 2252(a)(1).

The detective turned the child pornography she had obtained from Nance over to FBI agents, who began watching Nance's home, where he lived with his wife, their two-year-old son, and his wife's five-year-old daughter. After Nance noticed one of the agents outside his home, he stopped downloading child pornography and began deleting it from his laptop; he also researched how to reformat his computer. Shortly thereafter, FBI agents seized Nance's laptop. At that time, Nance acknowledged that he was the only one who used the laptop, but told agents, falsely,

Page 1039

that the computer had been inoperable for several months due to computer viruses.

The FBI conducted a forensic analysis of Nance's laptop. Although Nance had superficially deleted most of the child pornography from the laptop, the FBI was able to recover 1,000 previously-deleted images of child pornography, mostly involving preteen girls. The FBI was also able to recover the names of a number of deleted files, although the images linked to those files were not recoverable. In addition, the computer's automatic logs had documented the searches Nance conducted on peer-to-peer networks using terms associated with child pornography. These logs also had chronicled when Nance downloaded the images and files of child pornography that the FBI recovered from his computer, as well as when Nance watched this pornography. Based on its forensic analysis, the United States charged Nance with multiple counts of receiving or attempting to receive child pornography, in violation of 18 U.S.C. § 2252(a)(2).

Nance's defense at trial was that he did not know about the child pornography on his computer and that it must have been there as the result of computer viruses or hackers. The jury rejected that defense and convicted Nance of eight counts of transporting child pornography and forty-nine counts of receiving or attempting to receive child pornography.[1] The district court sentenced Nance to a total of sixty-four months in prison on these convictions, followed by five years' supervised release.

II. DISCUSSION

A. The district court properly admitted evidence of Nance's uncharged bad acts under Federal Rule of Evidence 404(b)(2)

Nance first challenges the district court's decision to admit evidence of his other, uncharged bad acts, including evidence that

1) his laptop contained over 1,000 previously-deleted images, pictures, and videos of child pornography;
2) Nance used his computer, at a time when he claimed it was inoperable, to access the website www.purenudism.com; and
3) two years before the charged offenses, Nance viewed two videos with file names indicating they contained child pornography.[2]

Page 1040

1. District court's ruling

Nance challenges the district court's decision to admit this evidence under Rule 404(b)(2) to show his intent, motive and opportunity to commit the charged offenses. To understand his arguments, however, we start by noting that the Government actually offered this evidence, not only under Rule 404(b)(2), but also under Federal Rule of Evidence 414(a) to show Nance's propensity to commit crimes involving child pornography. The district court declined to admit evidence of

Page 1041

Nance's uncharged bad acts under Rule 414(a) for this purpose.

Although " [t]he rules of evidence generally prohibit the admission of evidence for the purpose of showing a defendant's propensity to commit bad acts," Rule 414(a) " provides an exception to this general rule" by allowing the jury in a prosecution for child molestation to consider the fact that the defendant has committed other acts of child molestation as evidence that the defendant committed the charged offense.[3] United States v. Sturm, 673 F.3d 1274, 1282 (10th Cir. 2012) (internal quotation marks omitted). The district court determined that the evidence of Nance's other bad acts was admissible in this case under Rule 414, but that its probative value was substantially outweighed by the unfair prejudice it posed to Nance. See Fed.R.Evid. 403 (" The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice . . . ." ); see also Sturm, 673 F.3d at 1284 (noting evidence " that satisfies Rule 414 must [also] be evaluated under Rule 403). For that reason, the district court declined to admit the evidence of Nance's uncharged bad acts under Rule 414(a) to prove his propensity to commit crimes involving child pornography.

Unlike Rule 414(a), Rule 404(b)(1) does not allow evidence of a defendant's prior bad acts when that evidence is offered to prove his propensity to commit crimes. See United States v. McGlothin, 705 F.3d 1254, 1263 (10th Cir. 2013), cert. denied, 133 S.Ct. 2406, 185 L.Ed.2d 1115 (2013). Instead, Rule 404(b)(2) only permits the introduction of such evidence to prove other things, such as " motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." And, if requested, the trial court must instruct jurors to consider this evidence admitted under Rule 404(b)(2) only for the purposes for which it was admitted. See Huddleston v. United States, 485 U.S. 681, 691-92, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988).

In the ruling Nance challenges on appeal, the district court determined that the evidence of his uncharged other bad acts was admissible in this case under Rule 404(b)(2) to prove his intent, motive and, " to the extent that it's offered to rebut a suggestion that the computer was inoperable, it comes in . . . to prove opportunity." (Aplt. App. at 443.) In making this determination, the district court concluded that the probative value of this evidence, for these purposes, was not substantially outweighed by any unfair prejudice to Nance. At trial, when requested, the court instructed jurors to limit their consideration of this evidence to the specific purposes for which it was admitted.

2. The district court did not abuse its discretion in admitting this evidence under Rule 404(b)(2)

Nance challenges the district court's decision to admit the evidence of his uncharged bad acts under Rule 404(b).[4]

Page 1042

We review that decision for an abuse of discretion and " will not reverse . . . as long as the district court's decision falls within the bounds of permissible choice in the circumstances and is not arbitrary, capricious or whimsical." Battles, 745 F.3d at 452 (internal quotation marks omitted).

Nance first complains about the seeming inconsistency between the district court's determination that the other bad acts evidence at issue here was too unfairly prejudicial to be admitted under Rule 414, but that evidence was, nonetheless, admissible under Rule 404(b)(2). We do not address the propriety of the district court's Rule 414 determination because no one has appealed from that decision. It could be that the district court erred in excluding the evidence under Rule 414, but that issue is not before us. It is sufficient for us now just to note that the application of Rule 403 may differ depending upon which rule is applied in determining the admissibility of the evidence. Here, we consider only the Rule 403 analysis for evidence admitted under Rule 404(b)(2).

In arguing that that decision was an abuse of discretion, Nance challenges only the district court's determination that the 404(b)(2) evidence's probative value was not substantially outweighed by any unfair prejudice to the defense under Rule 403. We cannot agree.

The evidence at issue was clearly probative under Rule 404(b)(2). Nance's defense at trial was that he did not know about the child pornography on his computer. Evidence that Nance had viewed child pornography on his computer at least two years before the charged offenses occurred and that the FBI recovered over 1,000 images of superficially deleted child pornography from his computer undercut that defense. Nance also claimed that his computer had been inoperable for several months before the FBI seized it. Thus, evidence that Nance used his computer to access purenudism.com just a week before the FBI seized his computer was probative of whether his laptop was inoperable at that time.

Despite the probative value of this evidence, Rule 403, nevertheless, " mandates excluding [such] evidence . . . if the danger of unfair prejudice substantially outweighs the evidence's probative value." United States v. Brooks, 736 F.3d 921, 940 (10th Cir. 2013), cert. denied, 134 S.Ct. 1526, 188 L.Ed.2d 459 (2013), and 134 S.Ct. 2157, 188 L.Ed.2d 1141 (U.S. 2014). Applying Rule 403, the district court ruled that the probative value of this evidence, offered for the purpose of proving Nance's intent, motive, and opportunity, was not substantially outweighed by its potential for unfair prejudice because the court would, upon the defense's request, instruct jurors to consider the evidence only for the limited purposes for which it was admitted. We cannot say that determination falls outside " the bounds of permissible choice in the[se] circumstances," nor that it is " arbitrary, capricious or whimsical," Battles,

Page 1043

745 F.3d at 452 (internal quotation marks omitted). See United States v. Reddeck, 22 F.3d 1504, 1510 (10th Cir. 1994) (concluding introduction of evidence was not unfairly prejudicial where court gave limiting instruction).

Nance goes on to contend that the only purpose for which jurors actually could have considered the Government's Rule 404(b)(2) evidence was to prove Nance's propensity to commit crimes involving child pornography. But this argument ignores the fact that, when requested by the defense, the district court instructed jurors to limit their consideration of this evidence to the purposes for which it was admitted. Nance did not challenge at trial, and does not challenge now, the manner in which the district court gave these instructions. " And, absent a showing to the contrary, we presume jurors will conscientiously follow the trial court's [limiting] instructions." Brooks, 736 F.3d at 941 (internal quotation marks omitted). Nance did not request a limiting instruction each time any of the challenged evidence was admitted. But such an instruction was available had he requested it. See United States v. Shippley, 690 F.3d 1192, 1199 (10th Cir. 2012) (noting district court does not err in not giving limiting instruction when the defense does not request one), cert. denied, 133 S.Ct. 901, 184 L.Ed.2d 698 (2013).

We cannot say that the district court abused its discretion in refusing to exclude this evidence under Rule 403 where the evidence at issue was probative of Nance's intent, motive and opportunity to commit the charged offenses and any unfair prejudice was ameliorated by the court's limiting instructions, which the court gave when the defense requested such an instruction. See United States v. Mangiameli, 668 F.2d 1172, 1176 (10th Cir. 1982) (noting " limiting instruction ameliorated any potential for prejudice in the admission of [the challenged] evidence" ). The fact that the jury acquitted Nance of several counts lends further support to our conclusion that jurors did not improperly return verdicts here based on their emotional response to the Government's Rule 404(b) evidence.[5]

B. There was sufficient evidence to support Nance's convictions for attempting to receive child pornography

Nance next challenges his forty-two convictions for attempted receipt of child pornography, Counts 16-40 and 43-59 (the " attempt accounts" ), asserting there was insufficient evidence to support them. " We review this claim de novo, asking only whether taking the evidence--both direct and circumstantial, together with the reasonable inferences to be drawn therefrom--in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt." Battles, 745 F.3d at 453 (internal quotation marks omitted).

The attempt counts were based on computer files that Nance deleted, for which the Government was able to recover the file names, but not any of the images associated with the files. For example, in support of Count 22, the Government presented evidence that, on January 22, 2012, Nance downloaded a file named " PTHC

Page 1044

[meaning preteen hard core] 5th October 2011 10yo [year old] Arina masturbates on Webcam.avi." (Aplt. App. at 319.) Although the Government was unable to recover the visual images associated with this deleted file and so could not prove that it contained child pornography, the Government charged Nance with attempting to receive child pornography when he downloaded that file because he believed it contained child pornography.

Nance argues that a reasonable jury could not convict him on the attempt counts without the Government proving that each of the downloaded files actually contained child pornography. But Nance did not object when the district court instructed jurors that,

[i]n counts 9 through 59, to prove that defendant attempted to knowingly receive visual depictions of minors engaged in sexually explicit conduct, the government does not have to prove that defendant knew the downloaded file actually contained a visual depiction of a minor engaging in sexually explicit conduct. Rather, the government must prove beyond a reasonable doubt that the defendant believed that the downloaded file contained such a visual depiction.

(Id. at 244) And Nance does not object to that instruction on appeal. In any event, that instruction was proper. " While the underlying offense in this case requires the receipt of images of real-life minors engaged in sexually explicit conduct, the government in an 'attempt' case has no burden to prove that the appellant knew that the downloaded file actually contained such images. Rather, the government is required to prove that the appellant believed that the received file contained such images." United States v. Pires, 642 F.3d 1, 8 (1st Cir. 2011) (citing United States v. Bauer, 626 F.3d 1004, 1007 (8th Cir. 2010); further citation omitted).

There was sufficient evidence from which a rational jury could have found beyond a reasonable doubt that Nance believed that the files underlying the attempt counts contained child pornography. Each of the attempt counts resulted from an Internet search that Nance conducted using search terms that are connected to child pornography, 13 including " pthc," meaning " preteen hard core," " stickam," " vichatter," " kidcam," and " preteen." As a result of these searches, Nance found and downloaded the files underlying the attempt counts, each with a title suggesting it contained child pornography. The title of each of those files included a girl's name, the terms preteen or " pthc" or " lol" (short for Lolita[6]), and/or a specific age between six and thirteen years old; for example, " (pthc) loli Linda 12yo" (Aplt. App. at 319 (count 16)).[7] Some of the file names are much more graphic, for example, " PTHC_Tara fucked like a grownup." (Id. (count 21).) The names of each of these files would support a reasonable jury's finding beyond a reasonable doubt that Nance believed the files contained child pornography. See United States v. Fabiano, 169 F.3d 1299, 1306 (10th Cir. 1999) (relying, in part, on evidence of graphic titles of files to uphold conviction for knowingly receiving child pornography).

The circumstances surrounding Nance's downloading these files further supports

Page 1045

such a finding. Nance downloaded all of these files when his wife and their children were out of town visiting her family. This was the same pattern that Nance followed when he downloaded most of the images of child pornography that the Government was able to retrieve from his computer. Moreover, the Government was able to retrieve over one thousand images of child pornography that Nance downloaded over several years' time. Cf. United States v. Fabiano, 169 F.3d 1299, 1305-06 (relying in part on evidence of defendant's participation for five months in chat room discussions about child pornography as proof that he knew he was receiving child pornography). From all of this evidence, a rationale jury could have found, beyond a reasonable doubt, that Nance believed when he downloaded the particular files underlying each of the attempt counts that those files contained child pornography. That is sufficient to support his convictions on the attempt counts.[8]

In arguing to the contrary, Nance unpersuasively likens his case to United States v. Dobbs, 629 F.3d 1199 (10th Cir. 2011). In Dobbs, the Government failed to prove that the defendant had knowingly received or attempted to receive two images of child pornography found on the hard drive of his computer. 629 F.3d at 1200. But those two images were found only in the hard drive's " temporary Internet files folder, or 'cache.'" Id. at 1201.

[W]hen a person visits a website, the web browser automatically downloads the images of the web page to the computer's cache. The cache is populated with these images regardless of whether they are displayed on the computer's monitor. In other words, a user does not necessarily have to see an image for it to be captured by the computer's automatic-caching function. . . . [T]here was no evidence that Mr. Dobbs actually viewed the charged images, much less clicked on, enlarged, or otherwise exercised actual control over any of them. Furthermore, while the forensic specialist explained that a user may manipulate and control an image stored in the computer's cache, he repeatedly admitted that there was no evidence that Mr. Dobbs had accessed his computer's cache, or that he even knew it existed.

Id. at 1201-02.

Here, unlike in Dobbs, the files underlying the attempt counts were not found in the hard drive's cache, nor were they " received" without Nance's knowledge. Instead, the evidence established that Nance obtained these files after using peer-to-peer software to search deliberately for child pornography, which he then intentionally downloaded. See United States v. Haymond, 672 F.3d 948, 955-57 (10th Cir. 2012) (distinguishing Dobbs and upholding

Page 1046

conviction for knowingly possessing child pornography that was downloaded using peer-to-peer file-sharing software, following search using terms associated with child pornography).

For these reasons, then, there was sufficient evidence to support Nance's convictions on the attempt counts.

III. CONCLUSION

For the foregoing reasons, we AFFIRM all of Nance's convictions.


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