United States v. John Hayes ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4658
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN D. HAYES,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
Chief District Judge. (3:13-cr-00124-1)
Submitted: April 30, 2015 Decided: May 22, 2015
Before SHEDD, FLOYD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Brian J. Kornbrath, Acting Federal Public Defender, David R.
Bungard, Assistant Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Charleston, West Virginia, for Appellant. R.
Booth Goodwin II, United States Attorney, Jennifer Rada Herrald,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a bench trial, John D. Hayes was convicted of
attempted distribution and possession of child pornography, in
violation of 18 U.S.C. § 2252A(a)(2), (5)(B) (2012). The
district court sentenced Hayes to 180 months in prison. Hayes
appeals his convictions and sentence. Finding no error, we
affirm.
Hayes contends that the district court erred in rejecting
his guilty plea to possession of child pornography. “Before a
court may enter judgment on a plea of guilty, it must find a
sufficient factual basis to support the plea.” United States v.
Mitchell, 104 F.3d 649, 652 (4th Cir. 1997); see Fed. R. Crim.
P. 11(b)(3). The factual basis requirement “ensures that the
court make clear exactly what a defendant admits to, and whether
those admissions are factually sufficient to constitute the
alleged crime.” United States v. DeFusco, 949 F.2d 114, 120
(4th Cir. 1991). “The trial court has wide discretion in
determining whether a factual basis exists,” United States v.
Morrow, 914 F.2d 608, 611 (4th Cir. 1990), and the court may
make that determination “by having the accused describe the
conduct that gave rise to the charge,” Santobello v. New York,
404 U.S. 257, 261 (1971).
To prove possession of child pornography, the Government
must show that the defendant knowingly possessed images of child
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pornography. 18 U.S.C. § 2252A(a)(5). An act is knowing if it
is done “voluntarily and intentionally and not because of
mistake or accident or other innocent reason.” United States v.
Shrader, 675 F.3d 300, 309 (4th Cir. 2012) (internal quotation
marks omitted). “A possessor of child pornography videos need
not know that it is such at the time of download, so long as he
discovers that it is child pornography after the download and
decides to keep it anyway.” United States v. Carani, 492 F.3d
867, 875 (7th Cir. 2007).
In this case, the court exercised its discretion to reject
the guilty plea because it concluded that Hayes refused to admit
to the core conduct of the offense, thus raising questions about
the factual basis for the plea. In light of Hayes’ testimony at
the plea hearing and the “deference [that we must accord] to the
trial court’s decision as to how best to conduct the mandated
colloquy with the defendant,” DeFusco, 949 F.2d at 116, we
cannot conclude that the court erred in this respect.
Hayes next asserts a Confrontation Clause challenge to the
admission of reports indicating that he was sharing child
pornography over a peer-to-peer network. The reports were
generated automatically by a computer program, not by a person.
“Evidence implicates the Confrontation Clause only if it
constitutes a testimonial statement—that is, a statement made
with a primary purpose of creating an out-of-court substitute
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for trial testimony.” United States v. Reed, 780 F.3d 260, 269
(4th Cir. 2015) (internal quotation marks omitted). Data
generated by a machine, where the only source of the statement
is the machine printout and not a person, is not subject to the
Confrontation Clause. United States v. Washington, 498 F.3d
225, 229-30 (4th Cir. 2007); see also United States v. Lamons,
532 F.3d 1251, 1264 (11th Cir. 2008) (statements made by
machines and not by humans are exempt from purview of
Confrontation Clause). We conclude that the admission of the
challenged reports did not violate the Confrontation Clause.
Hayes next challenges the sufficiency of the evidence
supporting his conviction for the attempted distribution of
child pornography. We review the sufficiency of the evidence
underlying a criminal conviction “by determining whether there
is substantial evidence in the record, when viewed in the light
most favorable to the government, to support the conviction.”
United States v. Jaensch, 665 F.3d 83, 93 (4th Cir. 2011)
(internal quotation marks omitted). In evaluating the
sufficiency of the evidence, we do not review the credibility of
the witnesses, and we assume that the factfinder resolved all
contradictions in the testimony in favor of the Government.
United States v. Foster, 507 F.3d 233, 245 (4th Cir. 2007). We
will not overturn a verdict if “any rational trier of fact could
have found the essential elements of the crime beyond a
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reasonable doubt.” United States v. Dinkins, 691 F.3d 358, 387
(4th Cir. 2012) (internal quotation marks and emphasis omitted).
The evidence established that Hayes possessed substantial
knowledge about computers and knowingly used a file-sharing
program that allowed others to access child pornography files
stored in his shared folder. We conclude that the evidence was
sufficient to support Hayes’ conviction for attempted
distribution. See United States v. Collins, 642 F.3d 654, 656-
57 (8th Cir. 2011) (finding sufficient evidence of attempted
distribution of child pornography where defendant downloaded,
installed, and used file-sharing program and possessed knowledge
of computers); see also United States v. Dunn, 777 F.3d 1171,
1175 (10th Cir. 2015) (defendant’s placement of child
pornography files into shared folder accessible to other users
was sufficient to establish distribution even without active
transfer of possession to another user).
Finally, Hayes claims that his sentence of 15 years was
unconstitutional because the indictment did not allege the
existence of a prior conviction. ∗ As Hayes acknowledges, his
claim is foreclosed by Supreme Court precedent as well as our
∗
Hayes was previously convicted in West Virginia of sexual
assault in the second degree, involving a minor, which subjects
him to a mandatory minimum sentence of 15 years’ imprisonment
and a maximum possible sentence of 40 years. See 18 U.S.C.
§ 2252A(b)(1) (2012).
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own and is thus unavailing. See Almendarez-Torres v. United
States, 523 U.S. 224, 233-36, 243-44 (1998); United States v.
Cheek, 415 F.3d 349, 351-54 (4th Cir. 2005) (reaffirming
continued validity of Almendarez-Torres following United States
v. Booker, 543 U.S. 220 (2005)).
Accordingly, we affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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