United States v. Cameron Dean Bates ( 2016 )


Menu:
  •            Case: 15-14395   Date Filed: 11/29/2016   Page: 1 of 12
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 15-14395
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 2:12-cr-14054-KMM-1
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    CAMERON DEAN BATES,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    ________________________
    (November 29, 2016)
    Before WILSON, MARTIN, and ROSENBAUM, Circuit Judges.
    PER CURIAM:
    Case: 15-14395     Date Filed: 11/29/2016   Page: 2 of 12
    Cameron Bates appeals his convictions for four counts of knowing receipt of
    child pornography, in violation of 
    18 U.S.C. § 2252
    (a)(2) and (b)(1); one count of
    knowing distribution of child pornography, in violation of 
    18 U.S.C. § 2252
    (a)(2)
    and (b)(1); and one count of knowing possession of a computer containing child
    pornography, in violation of 
    18 U.S.C. § 2252
    (a)(4)(B) and (b)(2). Bates argues
    that certain reports the government put into evidence at trial were impermissible
    hearsay and violated his rights under the Sixth Amendment Confrontation Clause.
    He argues as well that the government made improper references to him that also
    violated his Sixth Amendment right to a fair trial. Our careful review persuades us
    that although Bates is correct that the reports were hearsay and that some of the
    government’s remarks were improper, even combining these two errors was
    harmless in light of the substantial untainted evidence against him. As a result, we
    affirm.
    I.
    In 2011, the Internet Crimes Against Children, Child Online Protective
    Services (“ICACCOPS”) task force got information that someone in the St. Lucie
    County, Florida area was downloading and sharing child pornography files over
    the Internet. The St. Lucie County Sheriff’s Office began investigating and, after
    subpoenaing Internet service providers, linked these files to the addresses of Bates
    and Samuel Gruen. Bates worked for Gruen, and had a personal relationship with
    2
    Case: 15-14395        Date Filed: 11/29/2016      Page: 3 of 12
    him as well.1 The Sheriff’s Office initially discontinued its investigation of Bates,
    but reopened it in May 2012, after receiving another report from the Child
    Protective System (“CPS”) database that targeted Bates.
    In June 2012, the government got a warrant to search Bates’s home. They
    found three computers in his house, and one in his car. All four computers were
    searched. The three computers found in Bates’s house belonged to Bates’s family
    members and had no child pornography on them. But the government’s initial on-
    site search of the computer found in Bates’s car revealed that it had at least eighty
    child pornography files.
    The government interviewed Bates as well as his wife and children during
    the search. Both Bates and his wife told the government in these interviews that
    the laptop found in the car belonged to Bates. When Bates was asked about the
    child pornography files, he admitted that he downloaded them, but claimed that he
    had done so unintentionally. He also admitted he downloaded child pornography
    files at Gruen’s home, but claimed to have done that unintentionally as well.
    Bates was tried and convicted on eighteen counts and sentenced to 240
    months’ imprisonment followed by 15 years of supervised release. Bates appealed,
    and this Court vacated his convictions because the district court did not allow
    1
    The investigation also indicated that Gruen’s neighbor’s Internet connection was used to
    access child pornography. However, she used an unsecured wireless network that anyone within
    range could join without a password. She testified that she never used her Internet connection to
    access child pornography.
    3
    Case: 15-14395    Date Filed: 11/29/2016   Page: 4 of 12
    examination of prospective jurors about possible prejudices against Bates because
    of his sexual activity with other men. See United States v. Bates, 590 F. App’x
    882 (11th Cir. 2014). On remand, the government retried Bates, this time only on
    six counts.
    At the second trial, Bates’s defense was that the evidence raised a reasonable
    doubt about whether he was responsible for the child pornography found on the
    computer in his car. Bates argued that because he did not have exclusive control
    over the laptop, the child pornography files could have been downloaded by a
    friend or family member. His wife and sister-in-law testified that the computer
    found in his car was a shared family computer. The government characterized this
    defense as a “smokescreen,” to which Bates repeatedly objected.
    The government’s case relied primarily on forensic evidence including 110
    child pornography files found on Bates’s computer, real-time confirmation of
    Bates sharing a child pornography file, and other evidence that only Bates used the
    computer. This evidence included his Craigslist posts, personal emails, business
    materials, family photos, and personal photos of himself naked. Much of this
    evidence was introduced through the testimony of Sergeant Rob Valentine. Sgt.
    Valentine explained that he used the ICACCOPS and CPS databases, as well as
    data from the National Center for Missing and Exploited Children (“NCMEC”)
    that contained known child pornography designations for certain files, to assist in
    4
    Case: 15-14395    Date Filed: 11/29/2016    Page: 5 of 12
    his investigation. Over Bates’s objections, the district court admitted ICACCOPS
    reports and logs, a CPS report, and a spreadsheet consolidating the data from those
    reports and logs. The district court admitted these documents into evidence, ruling
    that they were regularly conducted records of law enforcement, and therefore
    admissible under the Federal Rule of Evidence 803(6) hearsay exception. Sgt.
    Valentine also testified that Bates was a “big fish,” the “worst offender,” and the
    “worst user,” which is how he came to investigate Bates. The government used
    these same characterizations in their opening statement, examinations of witnesses,
    and closing arguments.
    The jury found Bates guilty on all six counts. The district court again
    sentenced Bates to 240 months’ imprisonment followed by 15 years of supervised
    release.
    II.
    On appeal, Bates asserts two errors by the district court. First, he argues it
    was error for the court to admit the ICCACOPS and CPS child pornography
    investigation reports, ICCACOPS logs, and NCMEC data (collectively, the
    “reports”), because they were impermissible hearsay and violated his rights under
    the Sixth Amendment Confrontation Clause. Second, Bates argues that the district
    court erred when it allowed the prosecutor to make improper remarks calling him a
    “big fish,” the “worst user,” and the “worst offender,” and to characterize his entire
    5
    Case: 15-14395      Date Filed: 11/29/2016    Page: 6 of 12
    defense as a “smokescreen.” Bates says these remarks violated his Sixth
    Amendment right to a fair trial. He also seeks to have this Court consider the
    cumulative effect of these two alleged errors in determining whether he should
    receive a new trial.
    We review de novo whether hearsay statements are testimonial for purposes
    of the Confrontation Clause and review decisions about the admissibility of
    evidence for abuse of discretion. United States v. Underwood, 
    446 F.3d 1340
    ,
    1345 (11th Cir. 2006). We also review de novo a claim of prosecutorial
    misconduct. United States v. Merrill, 
    513 F.3d 1293
    , 1306 (11th Cir. 2008).
    A.
    First, we turn to Bates’s argument that the reports were impermissible
    hearsay and admitted into evidence in violation of his rights under the Sixth
    Amendment Confrontation Clause. The Confrontation Clause says that “[i]n all
    criminal prosecutions, the accused shall enjoy the right . . . to be confronted with
    the witnesses against him.” U.S. Const. amend. VI. Impermissible hearsay can
    implicate the Confrontation Clause. See United States v. Jiminez, 
    564 F.3d 1280
    ,
    1286 (11th Cir. 2009). Hearsay is a statement that a declarant does not make while
    testifying at the trial or hearing, and is offered in evidence to prove the truth of the
    matter asserted. Fed. R. Evid. 801(c). Written assertions can constitute hearsay.
    Id. 801(a).
    6
    Case: 15-14395     Date Filed: 11/29/2016   Page: 7 of 12
    The district court found that the reports, as “record[s] of regularly conducted
    activity,” were exceptions to the general prohibition against using hearsay as
    evidence. Id. 803(6). Generally, mechanically generated records don’t qualify as
    “statements” for hearsay purposes, but when those records are developed with
    human input, they can become hearsay statements. See United States v. Lamons,
    
    532 F.3d 1251
    , 1261–64 (11th Cir. 2008); see also Melendez-Diaz v.
    Massachusetts, 
    557 U.S. 305
    , 310–11, 
    129 S. Ct. 2527
    , 2531–32 (2009) (affidavit
    reports of forensic analysis were testimonial and implicated the defendant’s Sixth
    Amendment right to confrontation).
    The reports challenged here required human input. While the reports largely
    contained computer-generated tracking information like dates, times, and online
    identifiers that do not qualify as “statements” for hearsay purposes, the data that
    matched Bates’s downloaded files to known child pornography relied on input
    from law enforcement officers. The CPS and NCMEC data underlying these
    reports contained information from officers about the children in the files, as well
    as the officers’ opinion about whether the files were known child pornography.
    These reports and their underlying data were also testimonial, implicating
    the Confrontation Clause. Testimonial statements include those “made under
    circumstances which would lead an objective witness reasonably to believe that the
    statement would be available for use at a later trial.” Crawford v. Washington, 541
    7
    Case: 15-14395     Date Filed: 11/29/2016   Page: 8 of 
    12 U.S. 36
    , 52, 
    124 S. Ct. 1354
    , 1364 (2004) (quotation omitted). The record shows
    that the government used the reports to demonstrate the steps of Sgt. Valentine’s
    investigation and to prove that the files Bates downloaded were child pornography.
    The reports and their underlying data were thus impermissible hearsay as well as
    testimonial, and therefore their admission into evidence violated the Confrontation
    Clause. The district court abused its discretion in admitting them at trial.
    Although these records were erroneously admitted into evidence, the error
    was harmless. An evidentiary error is harmless if it does not substantially
    influence the outcome of the trial and the jury’s verdict was supported by
    sufficient, untainted evidence. United States v. Dickerson, 
    248 F.3d 1036
    , 1048
    (11th Cir. 2001). “For violations of the Confrontation Clause, harmless error
    occurs where it is clear beyond a reasonable doubt that the error complained of did
    not contribute to the verdict obtained.” United States v. Caraballo, 
    595 F.3d 1214
    ,
    1229 n.1 (11th Cir. 2010) (quotation omitted).
    There was sufficient untainted evidence that established Bates’s guilt beyond
    a reasonable doubt. Bates admitted to unintentionally downloading child
    pornography when he was first interviewed, saying he had deleted it, despite
    forensic evidence to the contrary. The police searched four computers, but only
    found child pornography on Bates’s personal laptop. Bates and his wife told
    officers the laptop was Bates’s personal computer, and other forensic evidence
    8
    Case: 15-14395     Date Filed: 11/29/2016   Page: 9 of 12
    supported that conclusion as well. The laptop contained Bates’s work-related
    materials, family pictures, and personal sexually explicit photographs. The laptop
    reflected no computer activity attributable to other users.
    Bates relies on United States v. Cameron, 
    699 F.3d 621
     (1st Cir. 2012), to
    argue that admitting the reports into evidence was not harmless. But unlike
    Cameron, the reports here were not “the only evidence that was introduced” to
    prove the government’s charges. See 
    id. at 653
    . Given the amount of untainted
    evidence supporting Bates’s guilt, the error in admitting the hearsay reports was
    harmless.
    B.
    Bates also argues that the prosecutor’s references to him as a “big fish,” the
    “worst user,” and the “worst offender,” as well as characterizing his entire defense
    as a “smokescreen” produced a wrongful conviction by misleading the jury.
    Prosecutorial misconduct is established by showing that: (1) the prosecutor’s
    remarks were improper; and (2) the improper remarks prejudiced the substantial
    rights of the defendant. Merrill, 
    513 F.3d at 1307
     (citation omitted). Prosecutors
    must refrain from improper methods or assertions calculated to produce a wrongful
    conviction or mislead the jury. United States v. Blakey, 
    14 F.3d 1557
    , 1560 (11th
    Cir. 1994). A defendant’s substantial rights are prejudiced only when a reasonable
    probability arises that the outcome of the trial would have been different without
    9
    Case: 15-14395     Date Filed: 11/29/2016   Page: 10 of 12
    the remarks. This means that “where there is sufficient independent evidence of
    guilt, any error is harmless.” Merrill, 
    513 F.3d at 1307
     (quotation omitted). While
    some of the government’s remarks were improper, they were ultimately harmless
    due to the independent evidence of Bates’s guilt.
    First, characterizing Bates’s defense as a “smokescreen” was not improper.
    There is no prohibition against “colorful and perhaps flamboyant remarks” that
    relate to evidence at trial in presenting one side’s argument. United States v.
    Bailey, 
    123 F.3d 1381
    , 1400 (11th Cir. 1997) (quotation omitted). Also, Bates
    brought up the government’s use of the term “smokescreen” in his closing
    argument, so the government’s response to this discussion in its own closing
    argument was neither surprising nor improper. Because Bates referred to the
    comments, the government could respond to Bates’s “invitation” without
    committing an act that was calculated to incite the passions of the jury. See Knight
    v. Dugger, 
    863 F.2d 705
    , 741 (11th Cir. 1988).
    Second, although the prosecutor’s other remarks were improper, they did not
    prejudice Bates’s Sixth Amendment right to a fair trial. The use of the terms “big
    fish,” the “worst user,” and the “worst offender,” was improper both when the
    prosecutor and Sgt. Valentine used them. In fact, Bates was clearly not the “worst
    offender.” The evidence presented by the government showed that Bates had 110
    child pornography files on his computer. As Bates has shown, there are sadly
    10
    Case: 15-14395       Date Filed: 11/29/2016       Page: 11 of 12
    many cases where defendants have downloaded many thousands of child
    pornography files. See, e.g., United States v. Beasley, 562 F. App’x 745 (11th Cir.
    2014) (defendant downloaded and shared over 40,000 files); United States v.
    McGarity, 
    669 F.3d 1218
     (11th Cir. 2012) (defendant was part of an international
    child pornography ring that shared over 400,000 images and over 1,000 videos in
    roughly a one-year span).2 These remarks were not merely “colorful,” but instead
    were capable of misleading the jury. 3
    Nevertheless, the improper remarks did not violate Bates’s Sixth
    Amendment right to a fair trial because his substantial rights were not affected. To
    justify reversal, the misconduct must be “so pronounced and persistent that it
    permeates the entire atmosphere of the trial.” United States v. Woods, 
    684 F.3d 1045
    , 1065 (11th Cir. 2012) (per curiam) (quotation omitted). We judge the
    propriety of prosecutorial comments in the context of the entire record. United
    States v. Smith, 
    918 F.2d 1551
    , 1562 (11th Cir. 1990). The government’s remarks
    here were wrong, but they were few and far between. The jury heard these phrases
    fewer than ten times altogether, in the context of a four-day trial. The district court
    2
    The government notes that there are also many cases involving defendants who
    downloaded far fewer files. While this may be true, the existence of cases with fewer files does
    not elevate Bates to the “worst” user or offender.
    3
    The government points out that Sgt. Valentine, on cross-examination, provided some
    context for these remarks by clarifying that Bates was only the “worst offender” or a “big fish”
    relative to other investigatory targets he had at the time based on the ICAC database. But we
    note that the clarification only came at the insistence of Bates’s counsel and, despite the
    clarification, the government continued to use these improper characterizations in its closing
    argument.
    11
    Case: 15-14395     Date Filed: 11/29/2016   Page: 12 of 12
    also instructed the jury that statements by the lawyers was not evidence. On this
    record (including the substantial untainted evidence), we cannot say that the
    misconduct was persistent enough to have permeated the entire atmosphere of the
    trial, and find the error harmless. See Merrill, 
    513 F.3d at 1307
    .
    C.
    Finally, Bates asks us to consider whether the cumulative effect of these two
    errors warrants vacating his convictions. The cumulative error doctrine “provides
    that an aggregation of non-reversible errors,” such as harmless errors, can as a
    whole affect whether a defendant received a fundamentally fair trial. Morris v.
    Sec’y, Dep’t of Corr., 
    677 F.3d 1117
    , 1132 (11th Cir. 2012) (quotation omitted).
    But in light of the substantial untainted evidence against Bates we’ve detailed
    above, we hold that the combination of these two errors was harmless. See United
    States v. Hesser, 
    800 F.3d 1310
    , 1329–30 (11th Cir. 2015) (per curiam). As a
    result, we affirm.
    AFFIRMED.
    12