United States v. Runyan ( 2002 )

Revised May 22, 2002
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-10821
_____________________
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ROBERT BEAM RUNYAN
Defendant-Appellant
_____________________
No. 01-11207
_____________________
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ROBERT BEAM RUNYAN
Defendant-Appellant
_________________________________________________________________
Appeals from the United States District Court
for the Northern District of Texas
_________________________________________________________________
April 18, 2002
Before KING, Chief Judge, and JOLLY and BENAVIDES, Circuit
Judges.
KING, Chief Judge:
Defendant-Appellant Robert Beam Runyan was convicted of
sexual exploitation of a child in violation of 18 U.S.C. § 2251and of distribution, receipt, and possession of child pornography
in violation of 18 U.S.C. § 2252A. In two separate actions,
Runyan appeals his conviction (No. 00-10821) and the district
court’s denial of his post-trial motion for a new trial (No. 01-
11207). On September 24, 2001, we consolidated these two cases
for the purposes of appeal. On December 10, 2001, this court
issued a non-dispositive opinion: (1) holding that aspects of the
Government’s investigation violated the Fourth Amendment; and (2)
remanding the case to the district court for further factfinding
that would enable this court to assess the applicability of
exceptions to the exclusionary rule. On January 10, 2002, the
district court issued an order providing the requisite findings
of fact. We now conclude our analysis of Runyan’s Fourth
Amendment claims and address Runyan’s remaining claims, from both
his appeal of his conviction and his appeal of the district
court’s denial of his motion for new trial. For the following
reasons, we AFFIRM Runyan’s convictions for receipt and
possession of child pornography and for sexual exploitation of a
child, but REVERSE his conviction for distribution of child
pornography. We also VACATE Runyan’s sentence and REMAND to the
district court for entry of judgment and resentencing consistent
with this opinion.
2
I. Factual and Procedural Background
The facts of this case are described in detail in this
court’s December 10, 2001 decision. Accordingly, we only briefly
reiterate the underlying facts of the case. We address specific
facts pertinent to each of Runyan’s remaining claims in greater
detail within our discussion of each claim below.
In brief, Robert Beam Runyan (“Runyan”) and his wife Judith
Runyan (“Judith”) separated in January of 1999. In June of 1999,
Judith (accompanied at different times by her daughter and
various friends) made several trips to Runyan’s ranch to retrieve
items of her personal property while Runyan was out-of-town. At
the ranch, Judith and one of her companions found two duffel bags
in the barn containing items of pornography, including Polaroid
photographs of two individuals, one of whom appeared to be a very
young teenager. Judith removed these items from the ranch.
Judith and her companions also removed from the ranch a desktop
computer and a collection of floppy disks, compact discs (“CDs”),
and ZIP disks (collectively, “the disks”) that were lying on the
floor surrounding the computer.
One of Judith’s companions, Brandie Epp, reassembled the
computer at Judith’s residence and examined approximately 20 of
the CDs and floppy disks taken from the ranch. Epp discovered
that some of these CDs and floppy disks contained images of child
3
pornography.1 Epp contacted the sheriff’s department and turned
these materials over to a deputy. Over the next few weeks,
Judith turned over various additional items found at the Runyan
ranch to a number of different law enforcement agencies. These
items included the desktop computer, additional disks containing
child pornography, and the duffel bags found in the barn.
Texas Ranger Bobby Grubbs (“Ranger Grubbs”) used his
computer to view some of the disks delivered by Judith and
observed images of child pornography. He printed out several of
these images on a color printer and showed them to members of the
Coleman County District Attorney’s staff. An investigator in the
District Attorney’s office, Darla Tibbetts, tentatively
identified the girl photographed in one of the images. An intern
working for the District Attorney’s office, Melissa Payne, was
brought to the sheriff’s office to assist with the
identification. She positively identified the girl in the
pictures as Misty Metcalf (“Misty”), a former high school
classmate.2
On June 28, 1999, upon learning that he was a potential
suspect, Runyan met with Ranger Grubbs. At this meeting, after
Runyan had been given Miranda warnings, he stated that he found a
1
Epp did not view any of the images on the ZIP disks
because the necessary hardware was not connected.
2
There is conflicting testimony in the record regarding
whether Payne was shown Polaroid photographs or computer
printouts of Misty.
4
bag of pornography at a rest stop. Runyan admitted that he
viewed the materials in the bag and that, out of curiosity, he
used his computer to view child pornography available on the
Internet.3
On July 7, 1999, Customs Service Special Agent Rick Nuckles
(“Agent Nuckles”) joined the investigation. Agent Nuckles
examined several images from each floppy disk, ZIP disk, and CD
turned over by Judith and Epp. Agent Nuckles found two images of
Misty, apparently taken with a digital camera or taken with a
Polaroid camera and then scanned into a computer.
Also on July 7, Tibbetts and Ranger Grubbs interviewed
Misty. Misty stated that Runyan hired her when she was a young
teenager to perform odd jobs around his ranch and to iron clothes
for him. She said that he approached her when she was fifteen
about posing for nude photographs. Misty told Tibbetts that
Runyan had taken sexually explicit photographs of her on numerous
occasions when she was between the ages of fifteen and seventeen.
She reported that Runyan had sometimes paid her approximately
five dollars per photographic session and that he had promised
her more money once he sold the pictures over the Internet to
customers in Japan.
3
However, Runyan maintains that he never uploaded or
downloaded any images containing child pornography from the
Internet at these times.
5
Agent Nuckles then filed two applications for federal search
warrants, supported by his own affidavits. The first application
sought a warrant to search the desktop computer and all the disks
for files containing illegal images. The second application
sought a warrant to search Runyan’s ranch house for any and all
computers, computer hardware, software, and computer devices.
The affidavits supporting these applications included statements
made by Misty and Judith to Ranger Grubbs as well as information
from Runyan’s voluntary statement to Ranger Grubbs. In addition,
one of the affidavits contained a statement indicating that Agent
Nuckles had conducted a “cursory” review of the computer storage
media. Magistrate Judge Philip Lane issued both warrants. Law
enforcement officials subsequently searched Runyan’s ranch house
and discovered a computer backup tape that contained one picture
of child pornography.
On October 13, 1999, Runyan was indicted on six counts of
child pornography charges. Runyan filed three separate motions
to suppress the evidence against him, primarily contending that
the pre-warrant searches of the disks conducted by various law
enforcement officials involved in the investigation violated his
Fourth Amendment rights. The trial court held a hearing on
Runyan’s motions to suppress on April 20, 2000. At the close of
the hearing, the trial court denied the motions, finding that the
pre-warrant police searches did not violate Runyan’s Fourth
Amendment rights.
6
On April 21, 2000, a jury convicted Runyan of four counts:4
Count 1 — sexual exploitation of a child in violation of 18
U.S.C. § 2251; Count 3 — distribution of child pornography in
violation of 18 U.S.C. § 2252A(a)(2); Count 4 — receipt of child
pornography in violation of 18 U.S.C. § 2252A(a)(2); and Count 5
— possession of child pornography in violation of § 2252A(5)(B).
On July 28, 2000, the district court sentenced Runyan to 240
months on Count 1; 60 months on Count 3, to be served
consecutively to Count 1; and 180 months on Counts 4 and 5, to
run concurrently with the sentence imposed on Count 1, for a
total sentence of 300 months of imprisonment. In addition, the
district court imposed a three-year term of supervised release
and mandatory special assessments totaling $400.
Runyan timely appealed his convictions and his sentence,
contending that: (1) the trial court erred in failing to suppress
the evidence obtained directly and indirectly from the pre-
warrant police searches; (2) there was insufficient evidence
introduced at trial to establish the interstate commerce element
of each of the four charges; (3) the trial court erred in
refusing to order the Government to produce Misty’s boyfriend’s
computer and in refusing to conduct an in camera review of
evidence on that computer that Runyan contends was exculpatory;
(4) the trial court erred in admitting evidence that Runyan
4
Counts 2 and 6 were dismissed prior to trial.
7
refused to consent to the search of the desktop computer; and (5)
the trial court erred in not grouping all the counts of his
conviction in the sentencing determination.5 While that appeal
was pending before this court, Runyan filed a motion for new
trial based on newly-discovered evidence, alleging that Misty’s
boyfriend’s computer contained exculpatory evidence that the
Government withheld prior to trial. The district court denied
this motion on September 7, 2001, and Runyan timely appealed to
this court. We consolidated Runyan’s two actions for the
purposes of appeal on September 24, 2001.
II. Runyan’s Fourth Amendment Claims
Runyan seeks to suppress evidence obtained as a result of
the state and federal law enforcement officials’ pre-warrant
searches of the disks. Runyan argues that these searches
violated the Fourth Amendment and that no exceptions to the
exclusionary rule are applicable. Runyan also seeks to suppress
evidence obtained pursuant to the search warrants, arguing that
such evidence is “the fruit of the poisonous tree” because these
warrants were procured based on information obtained through the
prior illegal searches.6
5
The Government concedes that Runyan was incorrectly
sentenced as a result of the trial court’s failure to group the
counts of his conviction.
6
Runyan also argues that the warrants were invalid
because Agent Nuckles’s affidavit contained a statement that
Runyan contends is materially false (i.e., a statement indicating
that the desktop computer was in Runyan’s sole possession from
8
In reviewing a district court’s denial of a motion to
suppress evidence, we review the district court’s factual
findings for clear error and its conclusions regarding the
constitutionality of a warrantless search de novo. United States
v. Vega, 221 F.3d 789, 795 (5th Cir. 2000). We view the facts
underlying the suppression determination in the light most
favorable to the prevailing party, which in this case is the
Government. United States v. Howard, 106 F.3d 70, 73 (5th Cir.
1997). It is the defendant’s burden to prove a Fourth Amendment
violation by a preponderance of the evidence. United States v.
Riazco, 91 F.3d 752, 754 (5th Cir. 1996). However, once the
defendant proves such a violation, the burden shifts to the
government to demonstrate why the exclusionary rule should not
1995 to 1998) and because the affidavit did not contain any
information about Misty’s credibility (i.e., the fact that she
was on probation). However, a misstatement can vitiate an
affidavit “only if it is established that the misstatement was
the product ‘of deliberate falsehood or of reckless disregard for
the truth[;] [a]llegations of negligence or innocent mistake are
insufficient.’” United States v. Martin, 615 F.2d 318, 329 (5th
Cir. 1980) (quoting Franks v. Delaware, 438 U.S. 154, 171
(1978)). Similarly, omissions cannot undermine the validity of a
warrant unless such omissions are “made intentionally or with a
reckless disregard for the accuracy of the affidavit; negligent
omissions will not undermine the affidavit.” Id. The defendant
bears the burden of showing by a preponderance of the evidence
that a misstatement or omission was more than mere negligence.
Id. Runyan fails to meet this burden. An unsupported assertion
that an affidavit contains a misstatement (or an omission) does
not give rise to the inference that the affiant acted with
reckless disregard for the accuracy of the information presented
to the magistrate, particularly where the misstated or omitted
facts in question are of only minor significance to the finding
of probable cause.
9
apply to the fruits of the illegal search or seizure. United
States v. Houltin, 566 F.2d 1027, 1031 (5th Cir. 1978).
In our prior opinion, this court held that the police
violated Runyan’s Fourth Amendment rights when they conducted a
warrantless examination of disks that the private searchers
(Judith and Epp) had not examined. See United States v. Runyan,
275 F.3d 449, 464 (5th Cir. 2001). While we noted that the disks
(and any evidence obtained as a result of the information found
on the disks) were potentially subject to suppression due to this
Fourth Amendment violation, we indicated that this evidence would
still be admissible if the Government could demonstrate that an
exception to the exclusionary rule is applicable in the instant
case. We then remanded to the district court for factual
findings relevant to this issue. The Government now argues that
this court should apply the “independent source” exception to the
exclusionary rule, which dictates that evidence obtained from an
illegal search is admissible if the same evidence was also
obtained from a lawful source independent of the illegality.
As we noted in our December 10, 2001 opinion, under the
“independent source” exception to the exclusionary rule, the
government must make two showings in order for a lawful search
pursuant to a warrant to be deemed “genuinely independent” of a
prior illegal search: (1) that the police would still have
sought a warrant in the absence of the illegal search; and (2)
that the warrant would still have been issued (i.e., that there
10
would still have been probable cause to support the warrant) if
the supporting affidavit had not contained information stemming
from the illegal search. Id. at 467 (citing Murray v. United
States, 487 U.S. 533, 542 (1988)). In the instant case, the
Government contends that the magistrate judge would have issued
the two warrants permitting the police to search Runyan’s
computer and disks and Runyan’s home even if the police had never
conducted a pre-warrant search of the storage media. According
to the Government, the information that the police obtained from
interviews with Judith and Misty and from Runyan’s admissions in
his statement to Ranger Grubbs was sufficient to compel the
police to seek a warrant and to establish probable cause for a
warrant to issue. Thus, because the police obtained the same
information acquired through their pre-warrant search of the
disks from the subsequent, lawful searches pursuant to the
warrant, these subsequent searches were an “independent source”
of the images on the disks and this evidence is admissible at
trial.
In our December 10, 2001 opinion, we noted that one of the
affidavits submitted by Agent Nuckles in support of the warrant
applications contained a brief reference to his pre-warrant
search of the computer storage devices. We found that the
inclusion of this statement in the warrant application raised a
question about what role the pre-warrant searches might have
played in the issuance of the warrants. Because the district
11
court made no factual findings at the suppression hearing
enabling this court to address this issue, we remanded the case
to the district court “to conduct such proceedings as are
necessary to make findings of fact addressing” these questions.
On January 3, 2002, the district court conducted an
evidentiary hearing on these issues. Agent Nuckles, Ranger
Grubbs, and Magistrate Judge Philip Lane all testified at this
hearing. On January 10, 2002, the district court entered, inter
alia, the following factual findings addressing whether the
police would have sought the warrant in the absence of the
illegal search:
7. Agent Nuckles’[s] decision to seek the
search warrants in this case was unaffected
by the fact that the police, including
himself, may have looked at more disks than
did the private parties.
8. The Court finds that the police would
have sought the warrants even if they had not
exceeded the scope of the private party
searches.
In support of these findings, the district court noted that:
[T]he police, in total, received thirteen
(13) recordable compacts [sic] discs in this
case, only ten (10) of which contained
evidence of child pornography. Of those
thirteen, eleven initially came from Brandie
Epp and Judith Runyan and had clearly been
searched by private parties. . . . Assuming
without deciding that the two (2) recordable
CDs not initially turned over contained child
pornography images, then eight (8) of the
eleven (11) CDs that were initially turned
over and previously searched by private
citizens necessarily contained images of
child pornography . . . . The fact that the
12
police “searched” all the storage media and
additionally recovered one (1) zip disk, 13
to 15 floppies, and between zero (0) and two
(2) additional CDs containing child
pornographic images did not tip the balance
in favor of the decision to seek warrants.
In other words, 15 floppies plus 10 CDs plus
1 zip disk equals approximately 26 external
storage media containers. The fact that the
police determined that all 26 contained child
pornographic images instead of limiting their
pre-warrant activities to 8 of the 26 did not
tip the scale in favor of them seeking
warrants.
We review these factual findings for clear error. See United
States v. Grosenheider, 200 F.3d 321, 328 (5th Cir. 2000).
Runyan contends that the district court’s findings are clearly
erroneous because Agent Nuckles’s inclusion of a reference to his
“cursory” pre-warrant review of the disks in one of his
affidavits signals that his decision to seek the warrant was
motivated by his examination of the disks. We disagree. The
fact that Agent Nuckles made a passing reference to his prior
illegal search activity in his warrant application is not
dispositive to our determination whether he would have sought the
warrant in the absence of the prior illegal searches.7 Our
review of the record reveals ample support for the district
7
This is not to say that discussion of prior illegal
search activity in a warrant application is irrelevant in
assessing whether the police would have sought a warrant in the
absence of a prior illegal search. We simply find that, under
the circumstances of the instant case, brief reference to the
prior illegal search in the warrant application does not provide
conclusive evidence of Agent Nuckles’s motivation in seeking the
warrant.
13
court’s finding that Agent Nuckles would have sought the warrants
even if he had limited his pre-warrant examination to the same
disks that were examined by the private searchers.
As Agent Nuckles testified at the hearing on remand, the
statements provided by Judith and Misty, along with Runyan’s
statement to Ranger Grubbs, provided sufficient justification for
Agent Nuckles to seek a warrant to search Runyan’s home and
computer equipment. Moreover, seeking a warrant under such
circumstances was apparently required by the investigative
policies of the Customs Service. Under these circumstances, the
district court’s finding that Agent Nuckles would have sought
both warrants even if he had never exceeded the scope of the
private search is not clearly erroneous.
The second prong of the Murray inquiry asks whether the
issuance of the warrant (as opposed to the decision to seek the
warrant) was independent of any illegal search activity. As
Runyan correctly points out, when a search conducted pursuant to
a warrant is alleged to be an “independent source” of otherwise
tainted evidence and the warrant application contains information
obtained from the prior illegal search (or, as in the instant
case, contains a reference to the prior illegal search), this
court’s task is to determine whether there would have been
probable cause to support the issuance of the warrant had the
“tainted” information been omitted from the application. See
United States v. Restrepo, 966 F.2d 964, 966 (5th Cir. 1992)
14
(agreeing that the “proper approach is to excise from the warrant
affidavit those facts that were gleaned from the illegal search,
and then to consider whether the affidavit’s remaining
information is sufficient to constitute probable cause”). This
probable cause inquiry is a question of law that we review de
novo. United States v. Hassan, 83 F.3d 693, 697 (5th Cir. 1996).
In the instant case, the only information that must be
stricken from Agent Nuckles’s affidavits to “purge” the
affidavits of any reference to the illegal pre-warrant search is
a short statement in one of the affidavits indicating that
Nuckles conducted a “cursory” review of the disks.8 We find that
8
Runyan contends that Misty’s testimony must be excised
from the affidavits as well because her identification stemmed
from the illegal searches. In our December 10 opinion we noted
that the record contains conflicting testimony regarding whether
Melissa Payne identified Misty from the images of Misty that were
printed out from the disks or from the Polaroid photos of Misty.
Because this court is bound to interpret the facts in the light
most favorable to the Government when reviewing a trial court’s
denial of a motion to suppress, we assumed in our prior opinion
that Misty was identified via the Polaroids and that her
identification was independent of the illegal search activity.
Runyan, 275 F.3d at 465-66. Runyan contends that Misty’s
testimony is nonetheless “tainted” by the illegal search because
Darla Tibbetts (who “tentatively” identified Misty before
investigators sought Melissa’s assistance) identified Misty via
images taken from the disks. While it is not at all clear from
the record whether Tibbetts’s tentative identification of Misty
was based on computer images or Polaroids, this distinction is
ultimately not dispositive. Misty’s testimony remains
“untainted” by the illegal search. Even if Tibbetts did, in
fact, tentatively identify Misty from computer printouts,
Tibbetts would have made the same tentative identification upon
seeing the Polaroid photographs. Misty’s identity would
inevitably have been discovered and thus her identification is
not a “tainted” product of the prior illegal search activity.
See, e.g., United States v. Singh, 261 F.3d 530, 535 (5th Cir.
15
there remains ample evidence in the applications to support a
finding of probable cause. This conclusion is bolstered by the
district court’s finding on remand that Magistrate Judge Lane
would have issued the warrants even if one of the warrant
applications had not contained a reference to Agent Nuckles’s
prior illegal search activities.9 This finding indicates that
the magistrate judge, who is more familiar with the detailed
facts of this case, would have arrived at the same probable cause
determination that this court reaches today.
In conclusion, we find that the searches conducted pursuant
to the two warrants issued by Magistrate Judge Lane are an
independent source of the evidence obtained in the illegal pre-
warrant searches of the disks. This evidence was properly deemed
admissible. Moreover, based on our determination that the
warrants were issued independently of the prior illegal search,
we find that any additional evidence obtained pursuant to these
warrants is not the “fruit of the poisonous tree” and is
2001) (noting that otherwise suppressible testimony or evidence
should be admitted if there is “a reasonable probability that the
evidence would have been discovered from an untainted source”).
9
The district court found, based on Magistrate Judge
Lane’s unequivocal testimony, that he “would have issued the
warrant if the phrase had not been present.”
16
therefore admissible. Thus, the district court did not err in
refusing to suppress any of the evidence against Runyan.10
III. Runyan’s Sufficiency of Evidence Claims
Runyan challenges the sufficiency of the evidence supporting
all four counts of conviction: sexual exploitation of a child in
violation of 18 U.S.C. § 2251, distribution of child pornography
in violation of 18 U.S.C. § 2252A(a)(2), receipt of child
pornography in violation of 18 U.S.C. § 2252A(a)(2), and
possession of child pornography in violation of 18 U.S.C.
§ 2252A(5)(B). This court reviews a challenge to the sufficiency
of the evidence supporting a conviction de novo, considering
“whether . . . a rational trier of fact could have found the
essential elements of the offense beyond a reasonable doubt.”
United States v. De Leon, 170 F.3d 494, 496 (5th Cir. 1999).
“All reasonable inferences from the evidence must be construed in
favor of the jury verdict.” United States v. Martinez, 975 F.2d
159, 161 (5th Cir. 1992) (citing Glasser v. United States, 315
U.S. 60, 80 (1942)).
10
Runyan also appears to argue, albeit obliquely, that
all the disks removed from his ranch by Judith should be
suppressed because Judith entered Runyan’s property illegally. We
need not address the merits of this contention. The record
contains conflicting testimony regarding whether Judith had
Runyan’s permission to retrieve her property from the ranch.
Because we are bound to view the evidence in the light most
favorable to the Government in reviewing the district court’s
denial of a motion to suppress, we must presume that Judith had
permission to enter the ranch and retrieve her property.
Accordingly, Judith’s private search was not illegal under Texas
law.
17
Runyan argues that the evidence was insufficient to sustain
a conviction for sexual exploitation of a child because the
Government failed to prove that Runyan knew the images of Misty
would be transported in interstate or foreign commerce. Runyan
similarly argues that the evidence was insufficient to sustain a
conviction for distribution, receipt, or possession of child
pornography because the Government failed to prove that any
illegal image was transported in interstate commerce. We
consider each of these claims in turn.
A. The Sufficiency of the Evidence Regarding
Sexual Exploitation of a Child
The jury convicted Runyan of sexual exploitation of a child
in violation of 18 U.S.C. § 2251, based on Runyan’s conduct in
photographing Misty Metcalf. Section 2251 reads, in pertinent
part, as follows:
(a) Any person who employs, uses, persuades,
induces, entices, or coerces any minor to
engage in . . . any sexually explicit conduct
for the purpose of producing any visual
depiction of such conduct, shall be punished
as provided under subsection (d), if such
person knows or has reason to know that such
visual depiction will be transported in
interstate or foreign commerce or mailed, if
that visual depiction was produced using
materials that have been mailed, shipped, or
transported in interstate or foreign commerce
by any means, including by computer, or if
such visual depiction has actually been
transported in interstate or foreign commerce
or mailed.
18 U.S.C. § 2251 (2000). Runyan argues that the evidence
presented at trial was insufficient to demonstrate that he “knew
18
or had reason to know” that the images of Misty would be
transported in interstate or foreign commerce.
According to Misty’s testimony at trial, when Runyan
initially asked her to pose for nude photographs, he explained to
her that he was planning to sell the photographs to people in
another country. Misty further testified that Runyan said he
would use the Internet to solicit people to buy these
photographs. Runyan contends that Misty’s testimony is
insufficient to support his conviction because such statements do
not demonstrate that he “knew or had reason to know” that images
of child pornography would be transported in interstate or
foreign commerce. According to Runyan, a statement indicating
that an individual is planning to sell images over the Internet
is insufficient to establish the interstate nexus required for
conviction under § 2251.
As Runyan correctly notes, this circuit has not yet decided
whether an Internet transmission, in and of itself, constitutes
interstate transportation sufficient to satisfy the interstate
commerce element of § 2251 (i.e., the element requiring that an
offender must “know[] or ha[ve] reason to know that such visual
depiction will be transported in interstate or foreign commerce
or mailed”). In the instant case we now squarely face this
question. We join the First Circuit in holding that
“[t]ransmission of photographs by means of the Internet is
tantamount to moving photographs across state lines and thus
19
constitutes transportation in interstate commerce” for the
purposes of 18 U.S.C. § 2251. United States v. Carroll, 105 F.3d
740, 742 (1st Cir. 1997).11
The factual circumstances at issue in Carroll are remarkably
similar to the instant case. In Carroll, the defendant’s ex-wife
found pornographic Polaroid photographs of the defendant’s
thirteen-year-old niece among his personal effects. Id. at 741.
After an FBI investigation, the defendant was charged with sexual
exploitation of a child in violation of 18 U.S.C. § 2251. The
victim testified at trial that the defendant informed her at the
time the photographs were taken that he intended to scan the
images into a friend’s computer and distribute them over the
Internet. Id. at 742. The defendant was convicted and
subsequently appealed, challenging the sufficiency of the
evidence supporting his conviction. Like Runyan, the defendant
in Carroll argued that the victim’s testimony was insufficient to
establish that he “knew or had reason to know” that the pictures
11
While the First Circuit appears to be the only circuit
court that has directly addressed this question in the context of
18 U.S.C. § 2251, a number of other circuits have agreed that
transmission of material via the Internet constitutes
transportation in interstate commerce in related contexts. See,
e.g., United States v. White, 2 Fed. Appx. 295, 298 (4th Cir.
2001) (addressing 18 U.S.C. § 2252A); United States v. Thomas, 74
F.3d 701, 706-09 (6th Cir. 1996) (addressing 18 U.S.C. § 1465);
United States v. Smith, 47 M.J. 588, 592 (N.M. Ct. Crim. App.
1997) (addressing 18 U.S.C. § 2252); see also United States v.
Campos, 221 F.3d 1143 (10th Cir. 2000) (upholding a conviction
under 18 U.S.C. § 2252 based on an Internet transmission without
explicitly discussing whether Internet transmission constitutes
transmission in interstate commerce).
20
would be transported in interstate commerce. The First Circuit
disagreed, holding that the victim’s testimony was sufficient “to
sustain a finding that the [defendant] intended to transport the
pornographic depictions in interstate commerce (and therefore
knew that they would be so transported).” Id. While the Carroll
court recognized that there were alternate ways that the
Government could have established the interstate commerce element
of the offense in that case, the court clearly indicated that the
victim testimony alone was sufficient to establish the required
interstate commerce connection. Id. (indicating that the
victim’s testimony, “if believed, proved the government’s point”
that the defendant intended to transport child pornography in
interstate commerce). We similarly conclude in the instant case
that Misty’s testimony suffices to sustain the jury’s finding
that Runyan “knew or had reason to know” that the images of her
would be transported in interstate commerce via the Internet.
Runyan further argues that Misty was an unreliable witness
whose testimony was not credible and that her testimony thus
cannot form the sole basis of his conviction for sexual
exploitation of a child. While we recognize that Misty’s
testimony was not without its inconsistencies, Runyan’s
criticisms of Misty’s credibility go to the weight of the
evidence, not its sufficiency. In assessing the sufficiency of
the evidence supporting Runyan’s conviction, this court does not
evaluate the weight of the evidence or the credibility of
21
witnesses. See United States v. Delgado, 256 F.3d 264, 273-74
(5th Cir. 2001). Credibility assessments are squarely within the
jury’s domain, and we decline Runyan’s invitation to second-guess
the jury’s assessment of Misty’s testimony. Accordingly, we find
that the Government presented sufficient evidence to support
Runyan’s conviction for sexual exploitation of a child.
B. The Sufficiency of the Evidence Regarding
Distribution, Receipt, and Possession of Child Pornography
Runyan also challenges the sufficiency of the evidence
supporting his convictions for distribution, receipt, and
possession of child pornography under 18 U.S.C. § 2252A. Runyan
contends that the Government failed to demonstrate adequately
that any of the illegal images introduced at trial were
“transported in interstate commerce,” a required element of each
of these three charges. Specifically, Runyan argues that the
Government never proved that any of the particular images in
question came from the Internet, rather than from purely intra-
state sources. According to Runyan, the Government impermissibly
relied solely on inference to establish the interstate commerce
connection required under § 2252A.
In support of his argument, Runyan relies primarily on this
court’s decision in United States v. Henriques, 234 F.3d 263 (5th
Cir. 2000). In that case, defendant Bart Henriques was convicted
of possession of child pornography under a prior version of
§ 2252A that required the Government to prove possession of three
22
or more images of child pornography. Henriques, 234 F.3d at 264-
65. Henriques’s conviction was based on exactly three images.
He challenged his conviction, arguing that the evidence was
insufficient to support a finding that the three images were
transported in interstate commerce. Id. at 264. This court
agreed and reversed Henriques’s conviction. We noted that
transport of goods through interstate commerce is an element of
the crime under § 2252A, and we adopted the Tenth Circuit’s
holding that, when the interstate commerce element of § 2252A is
established via Internet transmission, the Government must
“independently link all the images upon which a conviction is
based to the Internet” in order to obtain a conviction. Id. at
266 (citing United States v. Wilson, 182 F.3d 737, 744 (10th Cir.
1999)).
In examining the particular images at issue in Henriques, we
recognized that two of the three images in question were
connected to interstate commerce by evidence introduced at trial.
A witness in that case testified at trial that she observed
Henriques viewing images of child pornography on the Internet,
including one of the three images supporting his conviction. Id.
at 267. Another of the images supporting Henriques’s conviction
had a website address embedded on it. Id. While we indicated
that such internal evidence of an Internet origin was most likely
sufficient to “independently link” this image to interstate
commerce, we ultimately concluded that there was still
23
insufficient evidence to support Henriques’s conviction because
there was no evidence indicating that the third image at issue
came from the Internet. We deemed the Government’s proffered
evidence – demonstrating that Henriques had access to the
Internet, and that his computer contained pornographic material –
insufficient to establish the requisite connection between the
third image and interstate commerce. Id. at 266-67. Moreover,
we indicated that the Internet link established for the first two
images supporting Henriques’s conviction could not be imputed to
the third image because each image had to be independently linked
to the Internet. Id. at 267.
Runyan contends that, as in Henriques, the Government in the
instant case failed to “independently link” any of the images
supporting his convictions for possession, receipt, and
distribution of child pornography to interstate commerce. The
Government responds that a rational jury could have found that
the interstate nexus was established in this case. The
Government points out that Runyan admitted in his initial
confession to Agent Nuckles: (1) that Runyan knew the CDs taken
from his home contained child pornography that had come from the
Internet, and (2) that he had received images of child
pornography from the Internet by accessing newsgroups and viewing
images. The Government further notes that both the defense
expert, Chancey Green, and the Government’s expert, Agent Wargo,
testified at trial that some of the images on the disks found by
24
Judith and on the hard drive of Runyan’s desktop computer came
from the Internet. Finally, the Government points to Runyan’s
statements to Misty indicating that he trafficked internationally
in child pornography as further evidence that the Government
sufficiently established the interstate commerce nexus underlying
Runyan’s convictions for distribution, receipt, and possession of
child pornography.
Before delving into the substance of the parties’ arguments,
it merits notice that, unlike the defendant in Henriques, Runyan
was charged and convicted under the current version of 18 U.S.C.
§ 2252A, which requires distribution, receipt, or possession of
only one image in order to sustain a conviction.12 18 U.S.C.
§ 2252A reads, in pertinent part:
(a) Any person who--
(1) knowingly mails, or transports or ships
in interstate or foreign commerce by any
means, including by computer, any child
pornography;
(2) knowingly receives or distributes--
(A) any child pornography that has been
mailed, or shipped or transported in
interstate or foreign commerce by any means,
including by computer; or
(B) any material that contains child
pornography that has been mailed, or shipped
12
In certain circumstances, a defendant can raise the
fact that he possessed, received, or distributed less than three
images of child pornography as an affirmative defense under the
current version of the statute. See 18 U.S.C. § 2252A(d) (2000).
Runyan did not raise such a defense in the instant case.
Moreover, the existence of this affirmative defense does not
alter the nature of the interstate commerce nexus requirement
under the current version of the statute.
25
or transported in interstate or foreign
commerce by any means, including by computer;
...
(5) either--
(A) in the special maritime and
territorial jurisdiction of the United
States, or on any land or building owned by,
leased to, or otherwise used by or under the
control of the United States Government, or
in the Indian country (as defined in section
1151), knowingly possesses any book,
magazine, periodical, film, videotape,
computer disk, or any other material that
contains an image of child pornography; or
(B) knowingly possesses any book,
magazine, periodical, film, videotape,
computer disk, or any other material that
contains an image of child pornography that
has been mailed, or shipped or transported in
interstate or foreign commerce by any means,
including by computer, or that was produced
using materials that have been mailed, or
shipped or transported in interstate or
foreign commerce by any means, including by
computer,
shall be punished as provided in subsection
(b).
18 U.S.C. § 2252A (2000).
Runyan apparently reads Henriques to suggest that the
Government must provide direct evidence (akin to the eyewitness
testimony addressing the first image in Henriques) in order to
provide the requisite “independent link” between an image and the
Internet. This argument mischaracterizes our holding in
Henriques. Henriques establishes that the Government must
provide some evidence linking the specific images supporting the
conviction to the Internet in order to establish an interstate
commerce connection under § 2252A. Henriques, 234 F.3d at 266.
Thus, as we indicated in Henriques, it is not enough for the
26
Government merely to introduce evidence indicating that the
defendant had Internet access and that the defendant, at some
point in time, accessed or downloaded images from pornography
websites or newsgroups. Id. at 266-67. Rather, the Government
must make a specific connection between the images introduced at
trial and the Internet to provide the requisite jurisdictional
nexus. We did not suggest in Henriques that circumstantial
evidence would be insufficient to establish such a link. Indeed,
Henriques implicitly supports the notion that circumstantial
evidence linking a particular image to the Internet (such as the
presence of a website address embedded on the image) can be
sufficient evidence of interstate transportation to support a
conviction under § 2252A. Id. at 267 (noting that one of the
three images in question “contain[ed] a world-wide web address
embedded on the image” and that “it is possible for this
‘internal evidence’ to support a connection to the Internet”);
accord United States v. Hilton, 257 F.3d 50, 54-55 (1st Cir.
2001) (adopting the analysis of Henriques and concluding that
“the government [i]s not required to provide ‘direct’ evidence of
interstate transmission,” thus upholding the defendant’s
conviction for receipt and possession of child pornography based
on expert testimony opining that the particular images at issue
in that case most likely originated from the Internet).
Viewing the evidence in the instant case, as we must, in the
light most favorable to the verdict, there is adequate
27
circumstantial evidence to tie particular images of child
pornography that were introduced into evidence at trial to the
Internet. For example, one image obtained from the hard drive of
Runyan’s computer had a website address embedded on it and
contained language advertising the child pornography available at
that website: “All Uncensored Child Nude and Porno Lolita Pics”;
“Asian Nudist and Others”; and “Ultimate Lolita Nudist Site.”
The website address and this advertising language provides
circumstantial evidence that this image was obtained from the
Internet. In addition, the Government’s expert, Agent Wargo,
testified at trial as to his opinion that this image came from
the Internet. This evidence is sufficient to enable a rational
jury to find that Runyan received and possessed an image of child
pornography that was “transported in interstate commerce” within
the meaning of § 2252A. Accordingly, there was sufficient
evidence to support Runyan’s convictions for receipt and
possession of child pornography.
Runyan’s conviction for distribution of child pornography is
more problematic. The distribution charge against Runyan was not
based on any evidence indicating that Runyan transmitted to
others the images he had stored on the disks or on the hard drive
of his computer. Instead, this charge was apparently based on
Runyan’s expressed intent to distribute via the Internet the
images of Misty that he created. However, the Government has not
provided sufficient evidence directly tying the images of Misty
28
to the Internet for the purposes of the distribution charge.
Misty’s testimony alone is insufficient to establish the
interstate commerce element of a conviction under § 2252A.
Unlike a conviction for sexual exploitation of a minor under
§ 2251, which requires the Government to prove that the defendant
knew or had reason to know at the time that the images were
created that those images “will be transported in interstate or
foreign commerce or mailed,” 18 U.S.C. § 2251 (2000) (emphasis
added), a conviction for distribution of child pornography under
§ 2252A requires the Government to prove that the defendant
knowingly distributed “any child pornography that has been
mailed, or shipped or transported in interstate or foreign
commerce by any means, including by computer” or “any material
that contains child pornography that has been mailed, or shipped
or transported in interstate or foreign commerce by any means,
including by computer,” id. § 2252A (emphasis added). As the
language of the two sections suggests, while evidence of a
defendant’s intent to distribute child pornography via interstate
commerce is adequate to satisfy the jurisdictional element of
§ 2251, see, e.g., United States v. Buculei, 262 F.3d 322, 329
(4th Cir. 2001) (noting that § 2251’s jurisdictional element
limits this section’s applicability to “a discrete set of
activities -- defendants who plan to transport visual depictions
of minors engaged in sexually explicit conduct in interstate
29
commerce”) (emphasis added), such evidence of intent appears
insufficient to satisfy the jurisdictional element of § 2252A.
There was no evidence presented at trial indicating that
Runyan actually disseminated the pictures of Misty to anyone,
much less that he had transported these images in interstate or
foreign commerce via the Internet or any other means. Nor was
there any evidence presented at trial indicating that Runyan
actually distributed any of the other images contained on the
disks or on the hard drive of his computer by transporting these
images in interstate or foreign commerce. Under these
circumstances, no reasonable jury could have found: (1) that
Runyan knowingly distributed child pornography or material
containing child pornography; or (2) that such child pornography
or material containing child pornography was mailed, shipped or
transported in interstate or foreign commerce. Accordingly, we
reverse the distribution count of Runyan’s conviction.
IV. Runyan’s Claims Based on the Wood Computer
In the course of preparing Runyan’s defense, his attorneys
purchased a computer from Misty’s ex-boyfriend, Nathan Wood (“the
Wood computer”).13 The defense retained possession of this
computer for four months, apparently without investigating its
13
Wood testified for the defense at trial. His testimony
indicated that while he and Misty were dating, he often observed
Misty using the computer to view and download pornography from
the Internet. Wood also testified that he observed Misty sending
these images to others via electronic mail, claiming that the
images were pictures of her.
30
contents. Shortly before trial, the defense retained an expert,
Chancey Green, to analyze the computer. Green informed Runyan’s
attorneys that there were pornographic images on the computer
depicting what he believed to be underage females. Runyan’s
attorneys then contacted officials from the United States Customs
Service. According to the defense, these officials instructed
Runyan’s attorneys to turn the Wood computer over to the Customs
Service. The Customs Service officials also instructed Green to
destroy the “mirror image” of the Wood computer’s hard drive that
he had created.
Runyan contends that, from the time that his attorneys
relinquished the Wood computer to the Customs Service until the
time of trial, the defense was denied access to the computer.
The Government, in contrast, maintains that the defense had an
open invitation to examine the Wood computer and its contents
while the computer was in the possession of the Customs Service.
At the request of the Government, Agent Nuckles conducted an
analysis of the contents of the Wood computer’s hard drive. This
analysis was apparently not completed until after the trial
began.
Both parties agree that the Wood computer was available at
trial. Indeed, the defense introduced the computer into
evidence. On the second day of trial, Runyan made a motion
requesting that the court “order the United States to produce
copies of all graphic images on [the Wood] computer, examine them
31
in camera, and enter an order making all said images and/or
computer information [available] to Defendant’s counsel.” Runyan
alleged that this hard drive contained images of child
pornography that would exculpate him.14 On the fourth day of
trial Runyan made a similar motion requesting that the court
“order the United States to produce copies of all graphic images
on this computer and deliver them to Defendant’s counsel.” The
district court denied both motions.
Green testified at trial for the defense, stating that he
had found images of what he believed to be underage females on
the Wood computer. Agent Nuckles testified at trial that he
found no images of child pornography on the Wood computer. Agent
Nuckles conceded that he found “questionable” images during his
analysis, but stated that he found “no five and six-year-old
[child] porn images.” Neither party introduced any images from
the Wood computer into evidence at trial.
Subsequent to trial, Runyan’s newly-retained appellate
counsel requested and received from the Government a mirror image
of the Wood computer’s hard drive. Two additional defense
experts, Dr. Hill and Dr. Andrus, then examined a sample of
14
Runyan’s theory was that any images of child
pornography found on the Wood computer would support his
contentions: (1) that it was Misty, not Runyan, who sent and
received images of child pornography from Runyan’s computer; and
(2) that Misty (with the assistance of other unknown parties)
must have created the photographs of herself, mimicking the
“poses” she saw in the images she downloaded onto Wood’s
computer.
32
thirty-three images from the computer. Dr. Hill concluded that
eleven images in the sample were girls under age sixteen; Dr.
Andrus concluded that ten images in the sample were girls under
age sixteen. Runyan alleges that these images constitute
exculpatory evidence because they support his theory that Misty
was responsible for creating images of herself, and that it was
Misty, not Runyan, who intended to distribute these images over
the Internet.
A. Runyan’s Claims on Direct Appeal
In his direct appeal of his criminal conviction (No. 01-
10821), Runyan contends that the district court erred in refusing
to order the Government to produce images from the Wood computer
that are, according to Runyan, exculpatory under Brady v.
Maryland, 373 U.S. 83 (1963). Runyan similarly argues that the
district court erred in refusing to conduct an in camera review
of materials on the Wood computer to determine if exculpatory
evidence was present. The district court denied these motions on
the ground that there was no need for court-ordered production or
in camera inspection because the computer was readily available
to the defense at the time these motions were made during the
trial.
Methods of enforcing disclosure requirements are generally
left to the sound discretion of the trial court. See United
States v. Valera, 845 F.2d 923, 927 (11th Cir. 1988). However,
this court has held that, under certain circumstances, refusal to
33
compel production or conduct an in camera review of Brady
materials can be reversible error. See, e.g., Williams v.
Dutton, 400 F.2d 797, 799-800 (5th Cir. 1968) (refusal to compel
production); United States v. Gaston, 608 F.2d 607, 612-14 (5th
Cir. 1979) (refusal to conduct an in camera review). The
district court in the instant case apparently concluded that
Brady was not implicated because the images in question were not
being “suppressed” by the Government. We agree.
We review a district court’s Brady determinations de novo.
United States v. Dixon, 132 F.3d 192, 199 (5th Cir. 1997). In
order to establish a due process violation under Brady, a
defendant must show that: (1) evidence was suppressed; (2) the
suppressed evidence was favorable to the defense; and (3) the
suppressed evidence was material to either guilt or punishment.
373 U.S. at 87. Evidence is material under Brady when there is a
“reasonable probability” that the outcome of the trial would have
been different if the suppressed evidence had been disclosed to
the defendant. United States v. Gonzales, 121 F.3d 928, 946 (5th
Cir. 1997) (citing United States v. Bagley, 473 U.S. 667, 682
(1985)). However, a defendant seeking merely an in camera
inspection to determine whether a particular source contains
Brady material “need only make a ‘plausible showing’ that the
file will produce ‘material’ evidence.” United States v. Lowder,
148 F.3d 548, 551 (5th Cir. 1998) (quoting Pennsylvania v.
Ritchie, 480 U.S. 39, 58 n.15 (1987)).
34
In addressing Runyan’s motions to compel production and in
camera review of the images on the Wood computer, we need not
determine whether the images on the Wood computer were “material”
under Brady and its progeny. We agree with the district court
that, at the time of trial, the Wood computer was not being
“suppressed.” An order compelling the Government to produce
images on the Wood computer (or, similarly, an order requiring
production of these images for the purposes of in camera review)
would have served no purpose. As the district court correctly
recognized, “the defense had full access to [the Wood] computer
and its contents during the trial.” Indeed, the record confirms
that the defense was fully aware that the Wood computer was
available for inspection at the time of trial.
Accordingly, the only effect of an order compelling
production (or compelling production for the purposes of an in
camera inspection) would have been to require the Government,
rather than the defense, to turn on the computer and examine the
images contained therein. However, Brady does not require such
action by the Government. Cf. United States v. Mulderig, 120
F.3d 534, 541 (5th Cir. 1997) (holding that the Government’s
Brady obligations do not require it to “point the defense to
specific documents within a larger mass of material that it has
already turned over”) (quoting United States v. Mmahat, 106 F.3d
89, 94 (5th Cir. 1997)) (internal quotations omitted). Evidence
is not “suppressed” if the defendant “knows or should know of the
35
essential facts that would enable him to take advantage of it. .
. . The Government is not required, in other words, to facilitate
the compilation of exculpatory material that, with some industry,
defense counsel could marshal on their own.” United States v.
Shoher, 555 F. Supp. 346, 352 (S.D.N.Y. 1983) (internal citations
omitted); see also Mulderig, 120 F.3d at 541 (“[W]hen information
is fully available to a defendant at the time of his trial and
his only reason for not obtaining and presenting the evidence to
the court is his lack of reasonable diligence, the defendant has
no Brady claim.”) (quoting United States v. Marrero, 904 F.2d
251, 261 (5th Cir. 1990) (internal quotations omitted)).15
Because there was no Government “suppression” of the images on
the Wood computer at the time of trial, the district court
properly denied Runyan’s motions to compel production of these
images.
B. Runyan’s Claims in His Motion for New Trial
A more difficult question is presented by Runyan’s motion
for new trial based on newly-discovered evidence. Runyan argues
that the defense was denied access to the Wood computer during
the time period between the Customs Service’s acquisition of the
15
Indeed, remarkably little “diligence” would have been
required of the defense in the instant case. The record reveals
that all of the relevant images and video clips from the Wood
computer fit on a single CD. Thus, as the district court found,
“it would not [have taken] long at all to view all the” relevant
files from the Wood computer, even during the course of a busy
trial.
36
computer and the trial. Runyan contends that because he was
prevented from accessing the Wood computer during this time
period, he was unable to make a meaningful analysis of the
potentially exculpatory images on the computer. Thus, according
to Runyan, his post-trial expert analysis of the images from the
Wood computer, which confirms that some of these images did
depict individuals under the age of sixteen, is “newly-discovered
evidence” that he was unable to obtain prior to trial due to the
Government’s pre-trial suppression of the computer.
Even assuming, arguendo, that the Government withheld the
Wood computer prior to trial and that the results of the
defense’s post-trial analysis can thus appropriately be deemed
“newly-discovered evidence,” a new trial is not warranted. The
defense’s post-trial analysis of the images from the Wood
computer fails to satisfy Brady’s materiality requirement.
This court reviews a district court’s denial of a motion for
new trial for abuse of discretion. United States v. Jaramillo,
42 F.3d 920, 924 (5th Cir. 1995). However, when the newly-
discovered evidence is alleged to be exculpatory evidence that
the Government withheld in violation of Brady, we review any
Brady determinations de novo. United States v. Gonzales, 121
F.3d 928, 946 (5th Cir. 1997). As a general rule, to obtain a
new trial based on newly-discovered evidence, a defendant must
demonstrate that: (1) the evidence was discovered after trial;
(2) the failure to discover the evidence was not due to the
37
defendant’s lack of diligence; (3) the evidence is not merely
cumulative or impeaching; (4) the evidence is material; and (5) a
new trial would probably produce a new result. United States v.
Williams, 985 F.2d 749, 757 (5th Cir. 1993). However, when a
motion for new trial based on newly-discovered evidence raises a
Brady claim, this court instead applies the three-prong Brady
test to determine whether a new trial is appropriate. See, e.g.,
Gonzales, 121 F.3d at 946 (applying the three-prong Brady test in
assessing a motion for new trial based on an alleged Brady
violation); accord United States v. Conley, 249 F.3d 38, 45 (1st
Cir. 2001) (noting that the three-part Brady test – rather than
the five-part test governing motions for new trial – is
applicable “where a defendant claims that the newly-discovered
evidence should have been produced under Brady”); United States
v. Quintanilla, 193 F.3d 1139, 1149 n.10 (10th Cir. 1999)
(“Evaluation of a Brady claim asserted in a motion for a new
trial involves an application of the three [Brady] elements
identified above, and not the five-prong . . . test utilized in
typical newly discovered evidence claims.”).
As noted above, to establish a due process violation under
Brady, a defendant must show that: (1) evidence was suppressed;
(2) the suppressed evidence was favorable to the defense; and (3)
the suppressed evidence was material to either guilt or
punishment. 373 U.S. at 87. Evidence is material under Brady
when there is a “reasonable probability” that the outcome of the
38
trial would have been different if the evidence had been
disclosed to the defendant. See Bagley, 473 U.S. at 682. A
“reasonable probability” is established when the failure to
disclose the suppressed evidence “could reasonably be taken to
put the whole case in such a different light as to undermine
confidence in the verdict.” Kyles v. Whitley, 514 U.S. 419, 435
(1995). As we noted in Gonzales, this standard does not require
a defendant to establish that he would have been acquitted had
the evidence been disclosed. 121 F.3d at 946. However, the
defendant “must establish that the suppression of exculpatory
evidence by the government ‘undermines confidence in the outcome
of the trial.’” Id. (quoting Kyles, 514 U.S. at 434).
It merits emphasis that the evidence in question in the
instant case (i.e., the evidence that the Government allegedly
prevented the defense from accessing) is not the Wood computer or
even the images contained on the Wood computer. Rather, the
“newly discovered” Brady evidence is the expert analysis of these
images that the defense was able to obtain after trial, but was
allegedly unable to obtain prior to trial. Thus, this court’s
task is to determine whether the availability of such expert
analysis at trial would have placed “the whole case in such a
different light as to undermine confidence in the verdict.”
Kyles, 514 U.S. at 435.
As noted above, Runyan’s attorneys initially hired Chancey
Green to examine the Wood computer prior to the time that the
39
defense relinquished the computer to the Customs Service.
Although Green was apparently unable to conduct a complete
analysis of the images on the Wood computer, he did testify at
trial that he saw images of what he believed to be child
pornography (specifically, images of “young girls”) on the
computer. Agent Nuckles also testified at trial regarding the
contents of the Wood computer, indicating that he found “no
evidence of actual child pornography.” However, Nuckles conceded
that there were some “questionable” images on the Wood computer.
In light of this testimony, it is clear that both the trial court
and the jury were fully aware that the Wood computer contained
“borderline” images that might have constituted child
pornography. As the district court correctly noted, Runyan’s
post-trial expert analysis “only verified this information.”
Runyan contends that this verification is nonetheless
“material” within the meaning of Brady because such testimony
would have bolstered Runyan’s theory that Misty was responsible
for creating the pornographic images of herself. However, in
light of the compelling evidence that Runyan was personally
involved in taking the pornographic photographs of Misty,16 the
16
Even apart from Misty’s testimony – which the jury
apparently credited – there is ample evidence in the record
indicating that Runyan was involved in photographing Misty. It
is uncontroverted that the pornographic photographs of Misty were
taken inside Runyan’s home and his place of business. In
addition, as previously noted, the Polaroid photographs of Misty
were found in Runyan’s barn and digitized images of Misty were
found on Runyan’s computer. Finally, Judith testified at trial
40
defense’s alternate theory explaining the origin of these images
is extremely weak.17 Under the circumstances of this case, we
cannot say that the inclusion of additional evidence at trial
providing indirect support (if any) for this demonstrably weak
defensive theory would have placed the case in such a different
light as to undermine confidence in the verdict. Cf. Wright v.
United States, 559 F.Supp. 1139, 1146 (E.D.N.Y. 1983) (“Brady
. . . does not require the government to anticipate all possible
defenses and provide the defendant with otherwise irrelevant
information to bolster one possible factual theory, particularly
where . . . the theory itself . . . is demonstrably
implausible."), aff’d, 732 F.2d 1048 (2d Cir. 1984). We find
that there is no reasonable probability that the outcome of the
trial would have been different had Runyan been able to present
expert analysis of the images on the Wood computer.
Runyan also contends that the district court erred in
denying his motion for a new trial without conducting an
that she recognized Runyan’s hand in one of the photographs of
Misty.
17
In addition, the presence of child pornography on Nathan
Wood’s computer provides only indirect support for this defensive
theory. No images of Misty were found on Wood’s computer. The
defense explained at oral argument that the presence of child
pornography on Wood’s computer nonetheless supports Runyan’s
theory that Misty was responsible for creating pornographic
images of herself. Specifically, Runyan argues that, because the
poses in the pictures found on the Wood computer were similar to
the poses in the images of Misty, Misty must have learned
techniques for pornographic modeling from the images she viewed
on the Wood computer.
41
evidentiary hearing. This court recognizes that a district court
may rule on a motion for new trial without conducting an
evidentiary hearing. See United States v. Blackburn, 9 F.3d 353,
358 (5th Cir. 1993). Moreover, “the decision to hold a hearing
rests within the sound discretion of the trial court.” Id. In
the instant case, the trial court was well aware of the details
of the parties’ dispute regarding the Wood computer because
Runyan’s motion to compel production and Runyan’s motion for in
camera review involved essentially the same issues. The only new
information relevant to this dispute at the time of the motion
for new trial was the defense’s post-trial expert analysis of the
images contained on the Wood computer. The district court
determined that it could adequately assess the relevance of these
two reports without the assistance of an evidentiary hearing. We
cannot conclude that this determination was an abuse of the
district court’s discretion.
V. Runyan’s Due Process Claim
Runyan contends that the district court erred in overruling
his objection to testimony (solicited by the Government)
indicating that Runyan refused to consent to a police search of
his desktop computer. Runyan argues that the Government, in
soliciting this testimony, attempted to use Runyan’s invocation
of his constitutional rights as evidence of guilt, in violation
of the due process clause of the Fifth Amendment. The Government
responds that the district court’s admission of this testimony
42
was not erroneous because Runyan “invited” this testimony by
suggesting: (1) that he had willingly consented to other
searches; (2) that Agent Nuckles performed an inadequate
investigation; and (3) that the desktop computer was tampered
with while Runyan was out of town on business. The Government
further contends that, even if the district court acted
erroneously in overruling Runyan’s objection, this testimony had
no effect on the outcome of the proceedings.
This court ordinarily analyzes due process claims alleging
improper comment on a defendant’s invocation of constitutional
rights under the harmless error doctrine, determining whether the
improper comment was harmless beyond a reasonable doubt. See,
e.g., United States v. Moreno, 185 F.3d 465, 472 (5th Cir. 1999)
(improper comment on a defendant’s invocation of his right to
counsel); Richardson v. Lucas, 741 F.2d 753, 755 (5th Cir. 1984)
(improper comment on a defendant’s refusal to testify). In the
instant case, the Government contends that Runyan did not raise
this constitutional objection to Agent Nuckles’s testimony at
trial and that plain error analysis is therefore applicable. In
support of this contention, the Government points out that
Runyan’s counsel objected to this testimony at the time it was
presented only on the ground that it was hearsay. It appears
from the record, however, that Runyan’s counsel attempted to
object to this line of questioning on constitutional grounds
prior to the time that the testimony was elicited, and that the
43
trial court indicated the court would not be receptive to such an
objection. Nonetheless, we need not decide whether this
objection was properly raised at trial because even under the
more defendant-friendly “harmless error” standard, Runyan fails
to demonstrate that admission of Agent Nuckles’s testimony
constitutes reversible error.
This circuit has not directly addressed the question whether
a prosecutor commits constitutional error by invoking a
defendant’s refusal to consent to a warrantless search to support
an inference of guilt. However, the circuit courts that have
directly addressed this question have unanimously held that a
defendant’s refusal to consent to a warrantless search may not be
presented as evidence of guilt. See, e.g., United States v.
Moreno, 233 F.3d 937, 940-41 (7th Cir. 2000); United States v.
Dozal, 173 F.3d 787, 794 (10th Cir. 1999); United States v.
Thame, 846 F.2d 200, 205-08 (3d Cir. 1988); United States v.
Prescott, 581 F.2d 1343, 1351-52 (9th Cir. 1978); but cf. United
States v. McNatt, 931 F.2d 251, 256-57 (4th Cir. 1991)
(questioning whether a defendant’s invocation of his or her
Fourth Amendment rights by refusing to consent to a warrantless
search is the constitutional equivalent of a defendant’s
invocation of his or her right to remain silent under the Fifth
Amendment, but not reaching the issue). For the purposes of this
appeal, we assume without deciding that it would be error of
constitutional magnitude for a trial court to permit a prosecutor
44
to comment on (or present testimony regarding) a defendant’s
refusal to consent to a warrantless search to support an
inference of guilt.18 Nonetheless, we find that under the
circumstances of this case, this error was harmless.
Runyan’s refusal to consent to a police search of his
desktop computer arose only once during the course of Agent
Nuckles’s testimony. The jury heard the following exchange:
Q: Were you aware during your investigation
in this case that prior to the execution
of the search warrant of the desktop
computer, that this defendant was asked
for consent to search it?
A: Yes, I was.
. . .
Q: Did this defendant give consent for law
enforcement to search the desktop
computer?
A: No, he did not.
Q: However, he did give consent to search
other places, correct?
A: Yes, he did.
The line of questioning then shifted to other matters. The
prosecution neither commented on Runyan’s refusal to consent to a
warrantless search, nor asked the jury to draw any inferences
18
We note that reference to a defendant’s refusal to
consent to a warrantless search may be admissible for purposes
other than to support an inference of guilt. See, e.g., Dozal,
173 F.3d at 794 (finding such evidence admissible to establish
the defendant’s dominion and control over the property subject to
the search). At least one court has also held that such
testimony may be admissible under certain circumstances if
“invited” by the defendant’s trial strategy. See McNatt, 931
F.2d at 256-58 (finding that testimony regarding the defendant’s
refusal to consent to a search of his vehicle was “invited” by
his suggestion at trial that the arresting officer “framed” him
by planting drugs in the defendant’s truck).
45
from this refusal. Indeed, Runyan’s refusal to consent to the
search was not mentioned at any other time during the trial.
Thus, the record reveals that the offending statement was merely
an isolated reference and that the Government did not focus on or
highlight Runyan’s refusal to consent to the search. This
suggests that the error was harmless. Cf. United States v.
Griffith, 118 F.3d 318, 325 (5th Cir. 1997) (recognizing that two
of the relevant factors in assessing whether a prosecutor’s
comment on a defendant’s failure to testify can be harmless error
are: (1) whether the comment was an isolated incident and (2)
whether the prosecution “focused on” or “highlighted” the refusal
to testify) (citing United States v. Shaw, 701 F.2d 367, 383 (5th
Cir. 1983)).
Moreover, the evidence supporting Runyan’s conviction for
possession and receipt of child pornography is very strong.
Images of child pornography (often images of the same children or
even identical images) were found on Runyan’s desktop computer,
on the disks removed from the ranch by Judith, and on a backup
disk found during the warrant-authorized search of Runyan’s home.
In addition, evidence of previous access to child pornography
websites was found on Runyan’s desktop computer and on a laptop
computer that Runyan previously owned that he gave to his
stepdaughter, Rickie, when she started college. Strong evidence
of guilt can render the admission of evidence regarding a
defendant’s refusal to consent to a warrantless search
46
“harmless.” See Moreno, 233 F.3d at 941; McNatt, 931 F.2d at
258; cf. United States v. Valley, 928 F.2d 130, 135 (5th Cir.
1991) (finding that overwhelming evidence of guilt can render
“harmless” a prosecutor’s comment on the defendant’s refusal to
testify). Under these circumstances, we can safely say that it
is clear beyond a reasonable doubt that the jury would have
returned a verdict of guilty even if the Government had never
asked Agent Nuckles about Runyan’s refusal to consent to a police
search of his desktop computer. See McNatt, 931 F.2d at 258.
Because we find that the alleged constitutional error “did not
contribute to the verdict obtained,” this error was harmless, and
the jury’s verdict should be upheld. Valley, 928 F.2d at 135(quoting Chapman v. California, 386 U.S. 18, 24 (1967)).
VI. Runyan’s Sentencing Claim
Runyan’s final claim of error alleges that he was
incorrectly sentenced. The district court grouped three of
Runyan’s four counts of conviction. Count one (sexual
exploitation of a child) was considered by itself, while the
three remaining counts (receipt, distribution, and possession of
child pornography) were grouped together. In the sentence
calculation for the group of offenses, Runyan received a five-
level enhancement for “engag[ing] in a pattern of activity
involving . . . sexual exploitation of a minor.” Accordingly,
Runyan contends that his exploitation offense was, in effect,
“double counted.” Such “double counting” is contrary to Section
47
3D1.2(c) of the Sentencing Guidelines, which provides that counts
of conviction should be grouped “[w]hen one of the counts
embodies conduct that is treated as a specific offense
characteristic in, or other adjustment to, the guideline
applicable to another of the counts.” U.S. Sentencing Guidelines
Manual § 3D1.2(c) (1998).
This “double counting” increased Runyan’s sentence. As
determined in the presentence report (“PSR”),19 the adjusted
offense level for sexual exploitation of a minor was 33. The
adjusted offense level for the grouped offenses (receipt,
distribution, and possession of child pornography) was 37.
Pursuant to Section 3D1.3(a), this group offense level was
calculated based on the distribution charge, the most serious of
the three counts comprising this group.20
Because Runyan was convicted of multiple counts that were
grouped separately, the PSR calculated Runyan’s combined offense
level under Section 3D1.4. See id. § 3D1.4. Pursuant to the
formula provided in this section, the greater of Runyan’s offense
levels (i.e., 37) was increased by two for a combined offense
19
The district court adopted the factual findings and
guideline application from the PSR.
20
Section 3D1.3(a) reads: “In the case of counts grouped
together pursuant to §3D1.2(a)-(c), the offense level applicable
to a Group is the offense level, determined in accordance with
Chapter Two and Parts A, B, and C of Chapter Three, for the most
serious of the counts comprising the Group, i.e., the highest
offense level of the counts in the Group.” U.S. Sentencing
Guidelines Manual § 3D1.3(a) (1998).
48
level of 39. This offense level resulted in a total punishment
range of 262-327 months. Had the counts of conviction been
properly grouped by the district court into a single group, this
two-level increase under Section 3D1.4 would not have applied.
Thus, Runyan’s offense level would have been 37, corresponding to
a total punishment range of 210-262 months.
In addition, because the total punishment range that was
calculated based on the combined offense level of 39 (i.e., 262-
327 months) exceeded the statutory maximum for any of the counts
involved, the district court imposed Runyan’s sentences
consecutively rather than concurrently, pursuant to Section
5G1.2(d), to achieve the total sentence of 300 months.21 Had all
four counts of conviction been grouped together, the sentence on
the count carrying the highest statutory maximum, (i.e., sexual
exploitation of a child, which carries a statutory maximum of 240
months) would have been adequate to achieve the total punishment
range for an offense level of 37 (i.e., 210-262 months).
Accordingly, Runyan’s sentences for his other counts of
conviction would have run concurrently with the sentence for
21
Section 5G1.2(d) reads: “If the sentence imposed on the
count carrying the highest statutory maximum is less than the
total punishment, then the sentence imposed on one or more of the
other counts shall run consecutively, but only to the extent
necessary to produce a combined sentence equal to the total
punishment. In all other respects, sentences on all counts shall
run concurrently, except to the extent otherwise required by
law.” U.S. Sentencing Guidelines Manual § 5G1.2(d) (1998).
49
sexual exploitation, rather than consecutively, pursuant to
Section 5G1.2(c).22
Thus, because the district court’s improper grouping of the
counts of conviction affects Runyan’s substantial rights, he is
entitled to resentencing. We note that resentencing is needed
not only to correct this improper grouping determination but also
to account for this court’s reversal of Runyan’s conviction for
distribution of child pornography. Accordingly, we remand to the
district court for resentencing consistent with this opinion.
VII. Conclusion
For the foregoing reasons, we AFFIRM the district court’s
denial of Runyan’s motion for a new trial (No. 01-11207). In
Runyan’s direct appeal of his conviction (No. 00-10821), we
AFFIRM Runyan’s convictions for sexual exploitation of a child,
receipt of child pornography, and possession of child
pornography. However, we REVERSE Runyan’s conviction for
distribution of child pornography and VACATE Runyan’s sentence.
Accordingly, we REMAND action No. 00-10821 to the district court
for entry of judgment and resentencing consistent with this
opinion.
22
Section 5G1.2(c) reads: “If the sentence imposed on the
count carrying the highest statutory maximum is adequate to
achieve the total punishment, then the sentences on all counts
shall run concurrently, except to the extent otherwise required
by law.” U.S. Sentencing Guidelines Manual § 5G1.2(c) (1998).
50