United States v. Sweeney , 887 F.3d 529 ( 2018 )

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."
- 2 -
"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.
- 3 -
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
- 4 -
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
- 5 -
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).
- 6 -
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."
- 7 -
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."
- 8 -
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
- 9 -
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
- 10 -
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
- 11 -
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.
- 12 -
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."
- 13 -
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
- 14 -
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.
- 15 -
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
- 16 -
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.
- 17 -
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.
- 18 -
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
- 19 -
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.
- 20 -
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
- 21 -
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.
- 22 -
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
- 23 -
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
- 24 -
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.
- 25 -