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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-11742
Non-Argument Calendar
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D.C. Docket No. 1:16-cr-00023-MW-GRJ-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEVI JERMAINE GRIFFIN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(August 2, 2019)
Before MARCUS, ROSENBAUM, and NEWSOM, Circuit Judges.
PER CURIAM:
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In 2018, a federal jury convicted Levi Griffin of one count of possessing
child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). He now
appeals his conviction. First, he contends—for the first time on appeal—that the
district court plainly erred, under Federal Rule of Evidence 404(b), in admitting
evidence at trial regarding a web browser history found on the tablet computer that
contained the images of child pornography at issue in this case. Second, he argues
that the district court erred in denying his motion for judgment of acquittal,
because the evidence was not sufficient to permit the jury to find that he knowingly
possessed the child pornography found on the aforementioned tablet. We address
his contentions in turn.
I
We normally review a district court’s evidentiary rulings for an abuse of
discretion. United States v. Dodds,
347 F.3d 893, 897 (11th Cir. 2003) (citation
omitted). However, where a defendant fails to object to the admission of evidence
on a particular ground—as is the case here—his general objection or his objection
on another ground will not suffice to preserve an issue for appeal. United States v.
Gallo-Chamorro,
48 F.3d 502, 507 (11th Cir. 1995). In those circumstances, we
review an unpreserved evidentiary objection for plain error. United States v.
Chilcote,
724 F.2d 1498, 1503 (11th Cir. 1984). Under that standard, we may not
correct an error that the defendant failed to raise in the district court unless: (1) an
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error occurred; (2) the error was plain; (3) the error affected the defendant’s
substantial rights; and (4) the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings. United States v. Turner,
474 F.3d 1265,
1276 (11th Cir. 2007).
Moreover, we have long held that “issues and contentions not timely raised
in the briefs are deemed abandoned” and generally will not be considered. United
States v. Ford,
270 F.3d 1346, 1347 (11th Cir. 2001) (per curiam).
Federal Rule of Evidence 401 provides that evidence is relevant if “(a) it has
any tendency to make a fact more or less probable than it would be without the
evidence; and (b) the fact is of consequence in determining the action.” Fed. R.
Evid. 401. But Rule 403 permits a court to “exclude relevant evidence if its
probative value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.”
Id., R. 403.
However, Rule 403 “is an extraordinary remedy which the district court should
invoke sparingly, and the balance should be struck in favor of admissibility.”
United States v. Alfaro-Moncada,
607 F.3d 720, 734 (11th Cir. 2010) (quoting
another source).
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In reviewing issues under Rule 403, we look at the evidence in the light most
favorable to its admission, “maximizing its probative value and minimizing its
undue prejudicial impact.”
Id. (quoting another source). As we have long noted,
Relevant evidence is inherently prejudicial; but it is only
unfair prejudice, substantially outweighing probative
value, which permits exclusion of relevant matter[s] under
Rule 403. Unless trials are to be conducted as scenarios,
or unreal facts tailored and sanitized for the occasion, the
application of Rule 403 must be cautious and sparing. Its
major function is limited to excluding matter of scant or
cumulative probative force, dragged in by the heels for the
sake of its prejudicial effect.
United States v. Mills,
704 F.2d 1553, 1560 (11th Cir. 1983) (quoting United States
v. McRae,
593 F.2d 700, 707 (5th Cir. 1979)).
Federal Rule of Evidence 404(b) does not apply when evidence of a prior act
is intrinsic to the charged offense. See United States v. Edouard,
485 F.3d 1324,
1344 (11th Cir. 2007). Evidence of another act is intrinsic when “(1) [the]
uncharged offense … arose out of the same transaction or series of transactions as
the charged offense, (2) [it is] necessary to complete the story of the crime, or
(3) [it is] inextricably intertwined with the evidence regarding the charged
offense.”
Id. (quoting United States v. Baker,
432 F.3d 1189, 1205 n.9 (11th Cir.
2005)). Evidence is inextricably intertwined when it tends to corroborate, explain,
or provide necessary context for evidence regarding the charged offense. See
United States v. Jiminez,
224 F.3d 1243, 1249–50 (11th Cir. 2000).
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Even if evidence of other crimes is extrinsic, it may be admissible for
another purpose, such as to demonstrate knowledge, motive, intent, absence of
mistake, or lack of accident. Fed. R. Evid. 404(b)(2). To be admissible, Rule
404(b) extrinsic evidence must (1) be relevant to one of the enumerated issues
other than the defendant’s character, (2) be supported by sufficient evidence to
allow a jury to determine that the defendant committed the act, and (3) not be
unduly prejudicial under the standard set forth in Rule 403.
Edouard, 485 F.3d at
1344.
Regarding the first prong of the Rule 404(b) test, a criminal defendant makes
his intent relevant by pleading not guilty. United States v. Zapata,
139 F.3d 1355,
1358 (11th Cir. 1998) (per curiam). Additionally, evidence that a defendant
engaged in similar behavior in the past makes it more likely that he did so
knowingly, and not because of accident or mistake, on the current occasion. See
United States v. Jernigan,
341 F.3d 1273, 1281–82 (11th Cir. 2003). As to the
second prong of the Rule 404(b) test, there is sufficient proof of the other acts if a
jury could find by a preponderance of the evidence that the defendant committed
the act. See
Edouard, 485 F.3d at 1345. A single witness’s uncorroborated
testimony can provide an adequate basis for a jury to find that the prior act
occurred. See United States v. Barrington,
648 F.3d 1178, 1187 (11th Cir. 2011).
Under the third prong, we conduct a Rule 403 analysis to determine whether the
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probative value of the evidence is substantially outweighed by the danger of unfair
prejudice. See United States v. Barron-Soto,
820 F.3d 409, 417 (11th Cir. 2016).
The record demonstrates that, in the district court, Griffin challenged the
admissibility of evidence relating to the browser history found on the tablet solely
on the grounds that that evidence should have been excluded under Federal Rule of
Evidence 403. The record also shows that, in overruling this particular evidentiary
objection, the district court conducted a Rule 403 analysis. On appeal, Griffin does
not raise any Rule 403 arguments, and has instead opted to—for the first time—
challenge the district court’s admission of the aforementioned evidence on the
basis that it was not admissible under Federal Rule of Evidence 404(b). As such,
he has abandoned any argument based on Rule 403, and we review his claim of
error under Rule 404(b) for plain error. See
Ford, 270 F.3d at 1347 (issues and
arguments not presented in a party’s brief on appeal are deemed abandoned and
need not be considered); see also
Chilcote, 724 F.2d at 1503 (issues raised for the
first time on appeal in criminal cases are reviewed for plain error).
Griffin has failed to show that the district court plainly erred, under Rule
404(b), by allowing into evidence testimony and documentary evidence regarding
the web browser history. The crux of Griffin’s defense was that he did not
knowingly possess the child pornography contained on the tablet, and he suggested
that another individual could have been responsible for downloading that illicit
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media to the tablet. Thus, his knowledge that illicit media was on his computer
became the sole disputed issue at trial. As such, evidence regarding the tablet’s
browser history was admissible under Rule 404(b), because: (1) it served the
permissible purpose of proving his knowledge that the tablet contained child
pornography; (2) the evidence showed that Griffin exercised primary dominion and
control over the tablet and thus that it was more likely than not that he viewed the
pornography websites memorialized in that browser history; and (3) Rule 403 did
not forbid the admission of that evidence, because its significant probative value
was not substantially outweighed by the risk of unfair prejudice.
Edouard, 485
F.3d at 1344; Fed. R. Evid. 404(b). Accordingly, we affirm in this respect.
II
We typically review de novo the denial of a defendant’s properly preserved
motion for judgment of acquittal. United States v. Perez-Tosta,
36 F.3d 1552,
1556 (11th Cir. 1994) (citations omitted). However, we have previously held that
we will review only for plain error where, as here, an appellant’s sufficiency-of-
the-evidence argument on appeal is different from the argument he presented to the
district court. United States v. Straub,
508 F.3d 1003, 1010–11 (11th Cir. 2007).
We will uphold the district court’s denial of a motion for judgment of
acquittal “if a reasonable trier of fact could conclude that the evidence establishes
the defendant’s guilt beyond a reasonable doubt.” United States v. Rodriguez, 218
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F.3d 1243, 1244 (11th Cir. 2000) (per curiam). “The district court’s decision on
sufficiency of the evidence is entitled to no deference by this [C]ourt.” United
States v. Taylor,
972 F.2d 1247, 1250 (11th Cir. 1992). However, we must view
the facts, and draw all reasonable inferences therefrom, in the light most favorable
to the jury’s verdict. United States v. Hanson,
262 F.3d 1217, 1236 (11th Cir.
2001) (per curiam) (quoting another source).
The test for sufficiency of evidence does not differ “regardless of whether
the evidence is direct or circumstantial” and we do not draw a distinction between
“the weight given to either direct or circumstantial evidence.” United States v.
Mieres-Borges,
919 F.2d 652, 656–67 (11th Cir. 1990) (quoting United States v.
Gonzalez,
719 F.2d 1516, 1521 (11th Cir. 1983)). However, where the
government relies on circumstantial evidence, reasonable inferences—not mere
speculation—must support the jury’s verdict. United States v. Mendez,
528 F.3d
811, 814 (11th Cir. 2008) (per curiam).
Moreover, credibility questions are for the jury, and we will assume that the
jury answered them all in a manner that supports the jury’s verdict.
Jiminez, 564
F.3d at 1285. A jury is free to choose among alternative, reasonable interpretations
of the evidence.
Id. Testimony will not be considered incredible as a matter of
law, unless it cannot be believed on its face, such as, for example, when a witness
testifies to facts that she could not have possibly observed or events that could not
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have occurred under the laws of nature. United States v. Thompson,
422 F.3d
1285, 1291 (11th Cir. 2005).
Pursuant to 18 U.S.C. § 2252A(a)(5)(B), it is unlawful to knowingly possess
any material that contains an image of child pornography that has been mailed,
shipped, or transported in interstate commerce. Accordingly, to convict a
defendant under this statute, the government must prove that (1) the defendant
knowingly possessed; (2) images or media of a minor; (3) depicting that minor
engaging in sexually explicit conduct; and (4) using a facility of interstate
commerce. United States v. Grzybowicz,
747 F.3d 1296, 1305 (11th Cir. 2014).
For the first time on appeal, Griffin challenges the sufficiency of the
evidence on the basis that the evidence showed only that the child pornography
contained on the tablet was either automatically or inadvertently downloaded.
Thus, we review those claims for plain error. See
Straub, 508 F.3d at 1010–11.
Griffin did, however, argue to the district court that the evidence did not
sufficiently prove that he knowingly possessed the child pornography found on the
tablet, and thus we review that claim de novo.
Perez-Tosta, 36 F.3d at 1556.
As to his preserved claim of error, Griffin has failed to show that the district
court erred in denying his motion for judgment of acquittal, because the evidence
was sufficient to permit a reasonable jury to conclude that he knowingly possessed
the child pornography found on the tablet. Rodriguez,
218 F.3d 1243, 1244.
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Among other things, that evidence included: (1) testimony that the tablet was
Griffin’s and that he exercised primary control over it; (2) user-created file folders,
one of which was named after Griffin’s daughter; (3) browser history revealing
repetitive searches for pornography involving minors; and (4) Griffin’s own
inculpatory statements. And even though that evidence was largely circumstantial,
it was sufficient to permit a reasonable jury to make the reasonable inference—as
this jury did—that Griffin knew that the tablet contained child pornography. See
Mieres-Borges, 919 F.2d at 656–67 (we make no distinction between the weight
given to either direct or circumstantial evidence).
Moreover, Griffin has not shown that the district court plainly erred in
denying his motion for judgment of acquittal on the basis that the evidence showed
only that he inadvertently downloaded the child pornography to the tablet or that
that media was automatically downloaded, because the evidence the government
offered was sufficient to permit a reasonable jury to conclude that Griffin
knowingly possessed the child pornography found on the tablet and that that media
did not find its way onto the tablet automatically or by mistake.
Jiminez, 564 F.3d
at 1285 (the jury is free to choose among reasonable interpretations of the
evidence). Accordingly, we affirm his conviction.
AFFIRMED.
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