United States v. Gavegnano ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4579
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEREK F. GAVEGNANO,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon,
District Judge. (3:05-cr-00017-nkm)
Submitted: October 28, 2008 Decided: January 16, 2009
Before MOTZ, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael T. Hemenway, THE LAW OFFICES OF MICHAEL T. HEMENWAY,
Charlottesville, Virginia, for Appellant. Julia C. Dudley,
Acting United States Attorney, Jean B. Hudson, Assistant United
States Attorney, Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Derek F. Gavegnano appeals his conviction on two
counts of receipt of child pornography, in violation of 18
U.S.C. §§ 2252(a)(2), 3261(a) (2006); one count of possession of
child pornography, in violation of 18 U.S.C. §§ 2252(a)(4),
3261(a) (2006); and one count of importation or transportation
of obscene matters, in violation of 18 U.S.C. §§ 1462, 3261(a)
(2006). We have reviewed the record and find no reversible
error.
Gavegnano first claims the district court erred in
denying his motion to suppress based on violation of his Fourth
and Fifth Amendment rights when evidence against him was
obtained from a government-issued laptop. We review legal
conclusions underlying the denial of a motion to suppress de
novo, and review factual findings for clear error. United
States v. Moreland, 437 F.3d 424, 433 (4th Cir. 2006). The
evidence is construed in the light most favorable to the
Government. United States v. Seidman, 156 F.3d 542, 547 (4th
Cir. 1998).
To establish a violation of his Fourth Amendment
rights, Gavegnano must establish that he had a “legitimate
expectation of privacy” in the computer searched. United States
v. Simons, 206 F.3d 392, 398 (4th Cir. 2000) (citing Rakas v.
Illinois, 439 U.S. 128, 143 (1978)). To prove a legitimate
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expectation of privacy, Gavegnano must show that his subjective
expectation of privacy is one that society is prepared to accept
as objectively reasonable. Simons, 206 F.3d at 398. As the
district court properly held, this he did not do.
It is uncontroverted that when Gavegnano was issued a
government computer, the user agreement he signed stated that he
was aware of the acceptable use of all government-issued
information systems, that he consented to the monitoring of the
information systems, and included the statement that he
understood that monitoring was not selective and would include
all activities on the information system. Moreover, the user
agreement form Gavegnano signed applied to his use of all
computer systems owned by the governmental agency for which he
worked, which included the laptop he used in Qatar, on which the
pornographic images were found. On these facts, and construing
the evidence in favor of the Government, see Seidman, 156 F.3d
at 547, we find no clear error by the district court in its
determination that Gavegnano had no reasonable expectation of
privacy in the unauthorized use of his government-issued laptop
computer such that his Fourth Amendment rights were violated.
Gavegnano’s Fifth Amendment claim, based on the fact
that, after invoking his right to consult with an attorney, he
was asked for, and revealed, the password to the computer, also
fails. Any self-incriminating testimony that he may have
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provided by revealing the password was already a “foregone
conclusion” because the Government independently proved that
Gavegnano was the sole user and possessor of the computer. See
United States v. Stone, 976 F.2d 909, 911 (4th Cir. 1992)
(quoting Fisher v. United States, 425 U.S. 391, 411 (1976)).
Next, Gavegnano challenges the district court’s taking
of judicial notice of the court’s jurisdiction insofar as its
failure to instruct the jury that it was not required to accept
as conclusive any fact judicially noticed, as required by Fed.
R. Evid. 201(g). Specifically, he takes issue with the district
court’s judicial notice that Gavegnano was charged with crimes
punishable by over a year in prison.
Rule 201(a) limits the scope of Rule 201 to judicial
notice of adjudicative, not legislative, facts. See Fed. R.
Evid. 201(a) advisory committee notes. Here, the fact of which
the district court took judicial notice, i.e., the penalty for
the crimes with which Gavegnano was charged, is fixed, does not
change from case to case, and applies to all cases in which
those crimes were charged. Hence, it is a legislative, not an
adjudicative fact. See, e.g., United States v. Williams, 442
F.3d 1259, 1261 (10th Cir. 2006) (citations omitted) (“statutes
are considered legislative facts” of which the authority of
courts to take judicial notice is “unquestionable.”).
Accordingly, the district court was under no obligation to
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follow the jury instruction requirement set out in Rule 201(g),
and it committed no reversible error in its failure to instruct
the jury pursuant to Rule 201(g).
In a related claim, Gavegnano also challenges the
district court’s taking of judicial notice of the element that
the crimes with which he was charged were punishable by more
than one year in prison if committed in the United States, an
element required under 18 U.S.C. § 3261, claiming that the
court’s action precluded him from requiring that the Government
prove each element of the charges against him beyond a
reasonable doubt. He supports his argument by reference to
Virginia state law statutes regarding obscene material that
carry sentences of less than a year. He also asserts that one
of the charges carried a penalty of “zero to five” years. His
argument is without merit.
First, as discussed above, the district court properly
may take judicial notice of legislative facts, and such
legislative facts include the interpretation of statutes. Fed.
R. Evid. 201(a) advisory comm. notes. Moreover, the
requirements of Rule 201(b) state that a “judicially noticed
fact must be one that is either (1) generally known within the
territorial jurisdiction of the trial court, or (2) capable of
accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned.” Here, the length of
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punishment is determined simply by reading the text of the
statutes violated, each of which provide that violation of the
statute is punishable by more than one year in prison. *
Second, Gavegnano’s reliance on the fact that certain
Virginia state statutes provide for punishment of less than a
year for the receipt and possession of obscene material is
misplaced, as Gavegnano was not charged under Virginia law, but
rather under federal statutes for offenses that took place in
Qatar. As it is undisputed that, on their face, the federal
statutes under which Gavegnano was charged carried sentences of
more than one year, the length of the relevant penalties cannot
reasonably be questioned. Hence, the fact of that penalty
properly was found by judicial notice.
Likewise without merit is Gavegnano’s contention that
judicial notice was not proper because one of the charges
carried a penalty of “zero to five” years. As the crimes all
were punishable by imprisonment for a term exceeding one year,
the actual prison sentence imposed is not relevant to the
*
Counts One through Six of which Gavegnano was charged
alleged a violation of 18 U.S.C. § 2252(a)(2), requiring a
punishment of five to twenty years in prison. See 18 U.S.C.
§ 2252(b)(1) (2006). Count Seven, alleging a violation of 18
U.S.C. § 2252(a)(4), is punishable by up to ten years in prison.
See § 2252(b)(2) (2006). Count Eight, alleging a violation of
18 U.S.C. § 1462 (2006), is punishable by up to five years in
prison.
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determination of whether judicial notice in this case was
proper. See e.g., United States v. Jones, 195 F.3d 205, 207
(4th Cir. 1999).
Gavegnano’s additional assertion, that by taking
judicial notice the district court erroneously precluded him
from requiring the Government to meet its burden of proof for
the element of § 3251 requiring the alleged crimes to carry a
prison sentence of over a year, is without merit. As the length
of the penalty properly was a judicially noticed fact, the
Government was without obligation to prove that element, and we
find no error.
Gavegnano’s final claim on appeal is that the district
court erred in admitting the forensic report which detailed the
contents of the computer containing child pornography. His
objection is based on his contention that the chain of custody
for the computer had not been adequately established because
other individuals handled the computer after it was taken away
from him, such that tampering could have occurred.
Pursuant to Fed. R. Evid. 901(a), a party introducing
evidence is required to authenticate it with “evidence
sufficient to support a finding that the matter in question is
what its proponent claims.” The proper inquiry relating to
chain of custody is whether the authentication testimony was
sufficient to “convince the court that it is improbable that the
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original item had been exchanged with another or otherwise
tampered with.” United States v. Howard-Arias, 679 F.2d 363,
366 (4th Cir. 1982) (citation omitted). Chain of custody
precision is not an “iron-clad requirement” and a “missing link
does not prevent the admission of real evidence, so long as
there is sufficient proof that the evidence is what it purports
to be and has not been altered in any material aspect.” Id.(internal quotation marks and citation omitted). Once evidence
is established that the item is what it is purported to be any
“[r]esolution of whether evidence is authentic calls for a
factual determination by the jury. . . .” United States v.
Branch, 970 F.2d 1368, 1370 (4th Cir. 1992). It is the jury’s
job to evaluate any defects in the chain of custody and accept
or disregard evidence. United States v. Clonts, 966 F.2d 1366,
1368 (10th Cir. 1992). The decision to admit evidence at trial
is within the sound discretion of the district court and we
review for abuse of discretion. United States v. Jones, 356
F.3d 529, 535 (4th Cir. 2004).
Here, the Government satisfied its Rule 901(a) burden.
Evidence was introduced that the forensic report contained
information found on Gavegnano’s computer. Evidence was
presented that matched the serial number for the computer
subject to the forensic report with the computer and hard drive
issued to Gavegnano. Gavegnano admitted that the computer
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placed into evidence, which was the same computer from which the
files listed in the forensic report were taken, was the same one
taken from him in Qatar. The Government introduced testimony by
the man who saw pornography on Gavegnano’s computer before it
was taken by the Government. There was no evidence or
indication of any tampering with the computer between the time
it was taken from Gavegnano and the time the forensic report was
compiled. That others looked at or used Gavegnano’s computer
during the time it was in custody, and the possibility that they
may have tampered with the computer, was an issue for the jury
to consider. See Branch, 970 F.2d at 1370. We find no abuse of
the district court’s discretion when it found the Government had
established a sufficient chain of custody and admitted the
forensic report.
Accordingly, we affirm Gavegnano’s conviction and
sentence. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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