USCA11 Case: 20-12287 Document: 63-1 Date Filed: 01/18/2023 Page: 1 of 15
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-12287
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL YLINIEMI,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 5:19-cr-00083-TKW-MJF-1
____________________
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2 Opinion of the Court 20-12287
Before ROSENBAUM, GRANT, and LUCK, Circuit Judges.
PER CURIAM:
A jury convicted Michael Yliniemi of receiving and pos-
sessing child pornography. On appeal, Yliniemi challenges his con-
viction, arguing that the district court pressured him to testify and
so his decision to take the stand was not knowing, intelligent, and
voluntary. We affirm Yliniemi’s conviction but remand for the dis-
trict court to correct a clerical error in the judgment.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A grand jury indicted Yliniemi on two counts: (1) receiving
child pornography, in violation of 18 U.S.C. sections 2252A(a)(2)
and (b)(1); and (2) possessing child pornography involving a prepu-
bescent minor and a minor under the age of twelve, in violation of
18 U.S.C. sections 2252A(a)(5)(B) and (b)(2). Yliniemi pleaded not
guilty and the case was set for trial.
At trial, the district court spoke with the parties before jury
selection, and it noted that Yliniemi’s witness list didn’t list anyone
“other than the defendant.” Yliniemi’s lawyer told the district
court that “[w]e haven’t made a final decision on whether to put
[Yliniemi] on the stand yet.” The district court said that it under-
stood and that Yliniemi wouldn’t need to make a final decision un-
til after the government’s case—which, if things went “smoothly,”
would be later that day.
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20-12287 Opinion of the Court 3
After the parties selected a jury and gave their opening state-
ments, the government presented its four witnesses. First, the gov-
ernment called Aubrey Chance, an investigator with Bay County
Sheriff’s Office, who testified to the following. In December 2018,
the National Center for Missing and Exploited Children referred
sixteen cases to the sheriff’s office involving a Facebook account
with the name “Ryan Madnes.” The Madnes account led a cha-
troom that the National Center for Missing and Exploited Children
flagged for child pornography.
Investigator Chance executed two search warrants: one on
Facebook for records related to the Madnes account and one on a
phone provider for a phone number linked to that Facebook ac-
count. The Facebook search revealed that the Madnes account
user had shared about 180 images and 109 videos of child pornog-
raphy. Some of those images and videos showed minors under the
age of twelve engaged in sexual acts. The Madnes account was
linked to the email address “boywanker1095,” and its user claimed
to be a young boy depicted naked in an image that he would send
to others.
The search directed to the Madnes account’s phone number
uncovered evidence linking Yliniemi to the number. The search
revealed that the phone number: belonged to the same user since
2017; placed more than forty percent of its calls to someone
Yliniemi had lived with at the time; and was used most frequently
at Yliniemi’s home and work addresses. Investigator Chance also
looked to see whether the phone number had ever called 9-1-1. As
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4 Opinion of the Court 20-12287
it turned out, someone had made a 9-1-1 call from the number,
identified himself as “Michael” (Yliniemi’s first name), and reported
a trespass at his address (Yliniemi’s address). Investigator Chance
testified that “everything . . . start[ed] coming together at that
point.”
So Investigator Chance questioned Yliniemi where he
worked—a Waffle House in Panama City Beach. Yliniemi at first
denied using the phone number but then admitted that he had used
the number since 2017. Yliniemi also said that he didn’t know an-
ything about the Madnes account before admitting that the ac-
count was his.
At that point, Investigator Chance read Yliniemi his Mi-
randa 1 rights and took him to the sheriff’s office, where he recorded
the rest of Yliniemi’s interview. During this interview, which the
government played for the jury, Yliniemi said that he created the
Madnes account on “[his] phone.” He admitted that he got in-
volved in a chat room where he and others exchanged child por-
nography.
The next three witnesses offered similar testimony. The sec-
ond witness, Lindsey Miller, was a crime analyst at the Bay County
Sheriff’s Office. Miller testified about the call to 9-1-1 and explained
that she analyzed Madnes’s phone number and found that the most
common call was to someone Yliniemi had been living with at the
1
Miranda v. Arizona,
384 U.S. 436 (1966).
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20-12287 Opinion of the Court 5
time. The third witness, David Ammons, was Yliniemi’s boss at
Waffle House. Ammons testified that he had used the phone num-
ber associated with Madnes to call Yliniemi. The fourth (and final)
government witness was Yliniemi’s ex-girlfriend, Amanda Thor-
burn. Thorburn testified that Yliniemi called her from jail and
“confessed to [her] on the phone,” telling her that he “looked up
things he shouldn’t have.” The government rested.
After the government rested, the district court asked
Yliniemi (out of the jury’s presence) if he “plan[ned] to put on a
case.” Yliniemi’s lawyer responded: “He has spoken to me, and
I’ve spoken to him at length about this particular issue. He’s choos-
ing not to testify.”
At that point, the district court addressed Yliniemi person-
ally and let him know that he had both “an absolute right not to
testify” and “an absolute right to testify.” The district court swore
Yliniemi in and asked him if he understood his “right to either tes-
tify or not testify.” Yliniemi responded, “Yes, sir.” “And you un-
derstand,” the district court asked, “that that’s a decision that only
you can make?” While Yliniemi confirmed that he understood,
Yliniemi’s lawyer interjected and told the district court that
Yliniemi was “torn between testifying and not testifying.”
Yliniemi then asked for more time to think about testifying,
and he stated that he wanted “to spend one more night with [his]
family” because his father was older and had heart problems. The
district court asked how much time had passed since his arrest, and
Yliniemi said that he had been busy with work. Yliniemi also stated
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6 Opinion of the Court 20-12287
that he hadn’t “had very much time” with his attorney to discuss
whether to testify.
The district court then asked Yliniemi if he would be able to
decide if it gave him more time to speak with his lawyer. Yliniemi
responded: “I’d like to spen[d] my last night with my parents, if
this is my last night.” The district court then asked, “[y]ou under-
stand you’re not going to be shot at the end of this, don’t you,” and
explained that Yliniemi hadn’t suggested that spending more time
with his family would impact his decision to testify.
The district court explained to Yliniemi that, if he decided
not to testify, the jury wouldn’t be allowed to hold that decision
against him. The district court also explained that the jury would
“weigh [his] testimony like any other witness.” The district court
then asked Yliniemi about his prior criminal history and whether
he’d taken his lack of a criminal history into account in deciding
whether to testify. Yliniemi responded, “I need time with [counsel]
and I’ll testify.”
The district court decided to take a fifteen-minute break so
that Yliniemi could discuss his decision with his lawyer. The dis-
trict court also repeatedly explained that it was “not trying to influ-
ence [Yliniemi] one way or the other,” that the decision was one
that “only” Yliniemi could make, that it was “completely
[Yliniemi’s] decision,” and that Yliniemi’s decision wouldn’t “mat-
ter one way or the other” to the district court. Yliniemi told the
district court that he understood, and then they broke.
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The parties returned almost twenty minutes later. The dis-
trict court then had an exchange with Yliniemi, in which Yliniemi
confirmed that he had enough time to talk to his lawyer, that he
understood his rights, and that he had chosen to take the stand:
THE COURT: All right. Mr. Yliniemi, when we left
you asked for some additional time to discuss with
[your lawyer]. Have you had the time you need to
discuss with him?
THE DEFENDANT: Yes, sir.
THE COURT: And have the time to discuss what op-
tions you have in this case about testifying?
THE DEFENDANT: Yes, sir.
THE COURT: And have you made a decision at this
point what you intend to do?
THE DEFENDANT: We’re going to testify.
THE COURT: You’re going to testify. All right. You
understand that decision is a decision that only you
can make?
THE DEFENDANT: Yes, sir.
THE COURT: And whatever advice [your lawyer]
gave you is something you can take into account or
not take into account . . . but you ultimately have to
make that final decision?
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8 Opinion of the Court 20-12287
THE DEFENDANT: Yes, sir.
THE COURT: And you said you do not have a crim-
inal history?
THE DEFENDANT: No, I don’t have a criminal his-
tory, sir.
THE COURT: Okay. And you do understand . . . if
you had chosen not to testify, I would tell the jury
they can’t hold that against you in any way, shape, or
form?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. And even knowing that, you
want to get on the stand and testify?
THE DEFENDANT: Yes, sir.
THE COURT: And you understand, when [you do]
that, you’re going to be subject to cross-examination
by [the government]?
THE DEFENDANT: Yes, sir.
THE COURT: And you understand that when you
get on the stand and testify, the jury’s going to weigh
your testimony just like any other witness?
THE DEFENDANT: Yes, sir.
THE COURT: And you understand that, . . . if you
say anything untrue on the stand, you could be
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20-12287 Opinion of the Court 9
subject to a perjury prosecution, separate and apart
from this case?
THE DEFENDANT: Yes, sir.
THE COURT: All right. Knowing all that, your de-
cision is still to testify?
THE DEFENDANT: Yes, sir.
With that, Yliniemi took the stand. Yliniemi denied receiv-
ing or possessing child pornography. He testified that he gave the
taped confession because Investigator Chance told him he would
not go to jail if he confessed. Yliniemi also testified that he told his
ex-girlfriend that he was accused of accessing child pornography,
not that he in fact did so.
The jury found Yliniemi guilty of both counts. The district
court sentenced him to 168 months’ imprisonment to be followed
by five years of supervised release. Yliniemi timely appealed.
DISCUSSION
The right to testify or to remain silent
Yliniemi argues that his conviction must be reversed be-
cause his decision to testify was not “knowing, intelligent, and vol-
untary.” He contends that the district court created a “coercive
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10 Opinion of the Court 20-12287
atmosphere” by questioning him and then requiring him to make
a quick decision. We disagree. 2
“A criminal defendant has a constitutional right to choose
whether or not to testify[.]” United States v. Anderson,
1 F.4th
1244, 1253 (11th Cir. 2021); see also Rock v. Arkansas,
483 U.S. 44,
52–53 (1987) (“Every criminal defendant is privileged to testify in
his own defense, or to refuse to do so.” (cleaned up)). “This right
[to testify or to remain silent] is personal to the defendant and can-
not be waived either by the trial court or by defense counsel.”
United States v. Teague,
953 F.2d 1525, 1532 (11th Cir. 1992) (en
banc). It’s the defendant’s choice alone.
Id.
We’ve explored how a district court might probe a defend-
ant’s decision. On the one hand, the district court is generally not
required to “conduct an on-the-record inquiry” into whether the
defendant has “knowingly, voluntarily, and intelligently waived”
his right to testify or to remain silent. United States v. Van De
Walker,
141 F.3d 1451, 1452 (11th Cir. 1998); see also Anderson, 1
F.4th at 1259 (same). In fact, a “district court runs the risk of
2
The parties disagree about whether we should review for plain error or struc-
tural error. Because we find no error at all, we don’t need to reach that issue.
See United States v. Nelson,
884 F.3d 1103, 1104 (11th Cir. 2018) (“[W]e are
presented with several questions about the nature of and relationship among
the various ‘error’ doctrines that pervade federal criminal law—trial error,
harmless error, structural error, plain error, and invited error. In the end, we
needn’t definitively resolve those questions, because . . . the district court
committed no constitutional error.”).
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denying a defendant’s right to testify [or to remain silent] by engag-
ing in too searching of an inquiry; its questions might dampen the
defendant’s protected choice.” United States v. Hung Thien Ly,
646 F.3d 1307, 1318 (11th Cir. 2011).
On the other hand, there is certainly no per se rule prohibit-
ing a trial court from ensuring that a defendant’s choice is knowing,
intelligent, and voluntary. “[A] trial court’s inquiry as to whether
a defendant wishes to testify or to remain silent is hardly an act that
deprives the defendant of his right to choose.” Anderson, 1 F.4th
at 1253. Indeed, on-the-record questioning is often a “pruden[t]”
means of protecting a defendant’s right to testify. Id. at 1257–59.
A simple colloquy can “nip . . . post-conviction issues in the bud,
eliminating the basis for a claim that the defendant was denied the
right to testify [or to remain silent].” Id. at 1258. Asking whether
the defendant freely decided also “ensures that the defendant’s
rights are protected.” Id. at 1259.
In the end, a “district court’s straightforward and neutral in-
quiry” won’t violate a defendant’s right to make a personal choice
as to whether to testify. Id. at 1253. In conducting this inquiry,
however, the district court must “avoid questions that probe trial-
strategy issues or suggest the court’s own opinion as to what choice
the defendant should make—questions that might disturb the at-
torney-client relationship, undermine the defendant’s ability to
make a knowing and intelligent decision, or overpower the defend-
ant’s will.” Id. at 1259. The district court, for example, should not
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12 Opinion of the Court 20-12287
“discuss sensitive issues of trial strategy or tip the scales in favor of
testifying or not testifying.” Id. at 1257 (cleaned up).
What the district court did here fell well within those guard-
rails. At the start of the trial, Yliniemi’s lawyer informed the district
court that Yliniemi hadn’t “made a final decision” on whether he’d
take the stand. When the government finished its case in chief, the
district court asked if Yliniemi would put on a case, and Yliniemi’s
lawyer said that Yliniemi was “choosing not to testify.” So the dis-
trict court addressed Yliniemi personally and asked him if he un-
derstood that he had the “right to either testify or not testify.”
While Yliniemi responded that he did, Yliniemi’s counsel then in-
formed the district court that Yliniemi was actually “torn between
testifying and not testifying.”
At that point, the district court asked Yliniemi some straight-
forward, neutral questions. The district court, outlining Yliniemi’s
rights, asked Yliniemi if he understood: (1) that he had no criminal
history that could come in; (2) that the jury wouldn’t be allowed to
hold his decision against him if he chose not to testify; (3) that the
jury would “weigh [his] testimony like any other witness”; (4) that
he would be “subject to cross-examination” if he testified; and (5)
that he could face a “perjury prosecution” if he said “anything un-
true on the stand”. Yliniemi doesn’t claim that the district court’s
explanation was incorrect. And it’s implausible that this neutral
summary of Yliniemi’s rights “overpower[ed] [his] will.” Id. at
1259.
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20-12287 Opinion of the Court 13
Even more, the district court repeatedly stressed that the de-
cision to testify—or not to testify—was Yliniemi’s alone. It ex-
plained that it was “not trying to influence [Yliniemi’s decision] one
way or the other,” that the decision was one that “only” Yliniemi
could make, that it was “completely [Yliniemi’s] decision,” and that
Yliniemi’s decision wouldn’t “matter one way or the other” to the
district court. Yliniemi confirmed that he understood that the de-
cision was one that he had to make and that the district court was
not looking to influence his decision. In short, the record shows
that the district court did not “discuss sensitive issues of trial strat-
egy or tip the scales in favor of testifying or not testifying.” Id. at
1257 (cleaned up).
The record also shows that Yliniemi had enough time to de-
cide to testify. As the district court pointed out, Yliniemi had been
arrested more than three months before trial. On the morning trial
began, the district court also alerted Yliniemi to the fact that he
would need to decide whether to testify after the government fin-
ished its case—which, if things went “smoothly,” would be later
that day. When that happened, Yliniemi asked for more time to
speak with his lawyer, and the district court granted that request,
taking a fifteen-minute recess. 3 After they returned from the break,
3
Yliniemi also requested more time because he wanted to spend his “last night
with [his] parents.” The district court asked Yliniemi if he understood he
wasn’t “going to be shot” at the end of the trial. There’s no evidence—nor
does Yliniemi claim—that the district court’s statement overpowered his deci-
sion on whether to testify.
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14 Opinion of the Court 20-12287
Yliniemi never asked for more time. Instead, he told the district
court that he “had the time [he] need[ed] to discuss” things with his
lawyer. On these facts, Yliniemi’s decision to testify was knowing,
intelligent, and voluntary.
Our sister circuits have affirmed convictions under similar
circumstances. In United States v. Tull-Abreu,
921 F.3d 294 (1st
Cir. 2019), for example, the First Circuit found no error where the
trial court “accurate[ly]” explained “the right not to testify and
some potential consequences of choosing to testify (for example,
possibly facing cross-examination).”
Id. at 303. The defendant was
also “granted a [thirty-minute] recess to contemplate the matter
further and did not ask for more time after the recess.”
Id. The
same thing happened here. There was no error. See also, e.g., Hol-
lenbeck v. Estelle,
672 F.2d 451, 452–53 (5th Cir. 1982) (holding that
a district court’s colloquy providing a neutral explanation of the
right to testify was “a model of appropriate judicial concern for the
constitutional rights of a criminal defendant”); United States v.
Goodwin,
770 F.2d 631, 637 (7th Cir. 1985) (holding that a defend-
ant’s decision to testify was voluntary where the district court ex-
plained it “was not trying to steer her one way or the other” and
gave her “time to talk things over”).
A clerical error
Although we affirm Yliniemi’s conviction, there is a clerical
error in his judgment. We can raise clerical errors in a judgment
and remand with instructions to correct those errors. See United
States v. Massey,
443 F.3d 814, 822 (11th Cir. 2006). The final
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20-12287 Opinion of the Court 15
judgment states that Yliniemi pleaded guilty to counts one and two
of the indictment. But Yliniemi was convicted of those counts after
a jury trial. We remand to the district court with instructions to
amend the judgment to correct this clerical error.
AFFIRMED; REMANDED TO CORRECT A CLERICAL
ERROR IN THE JUDGMENT.
