United States v. Ronald Norweathers ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 17-1311
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RONALD NORWEATHERS, also known
as Tandy3100, also known as
Tame 181,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 09 CR 1047 — Joan Humphrey Lefkow, Judge.
ARGUED MAY 23, 2018 — DECIDED JULY 10, 2018
Before WOOD, Chief Judge, and BAUER and ROVNER, Circuit
Judges.
BAUER, Circuit Judge. A jury convicted Ronald Norweathers
of two counts of transporting child pornography and one count
of possessing child pornography. Prior to trial, the government
2 No. 17-1311
sought a ruling on the admissibility of an email exchange
between Norweathers and another individual, in which they
discussed drugging and having sex with young boys. The
district court ruled the evidence was admissible under Federal
Rules of Evidence 403 and 404(b), and the government
introduced it at trial. On appeal, Norweathers contends the
admission of the emails was an error that deprived him of a
fair trial. We affirm.
I. BACKGROUND
On July 15, 2009, a grand jury returned a four-count
superseding indictment charging Norweathers with three
counts of transporting child pornography in violation of 18
U.S.C. § 2252A(a)(1) (Counts One, Two, and Three), and one
count of possessing a computer hard drive containing images
of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(b)
(Count Four). The charges stemmed from an FBI investigation
that culminated in the execution of a search warrant on
December 19, 2009, at the address of 1-800-Radiator, a business
located in Rolling Meadows, Illinois, where Norweathers
worked as the operations manager.
In their initial search, FBI agents found approximately 50
images of child pornography on a desktop computer at
Norweathers’ workstation. Those images served as the basis
for Count Four of the indictment. The agents later obtained a
warrant to search an email account with the username
“tame181@yahoo.com,” which they believed was Norweathers’
personal account. That search revealed that on March 13, 2009,
the tame181@yahoo.com username sent an email containing 78
images, the vast majority of which were images of child
No. 17-1311 3
pornography. The agents also found an email sent on
August 4, 2009, which contained four images of child
pornography. The August 4, 2009, email and the March 13,
2009, email (collectively, “the charged emails”) formed the
basis for Counts Two and Three of the indictment, respectively.
The government eventually dismissed Count One, and
Norweathers proceeded to trial on Counts Two, Three, and
Four.
Before trial, the government filed a notice of intent to offer
evidence of other bad acts pursuant to Federal Rule of
Evidence 404(b)(2). Specifically, the government sought to
admit the following email exchange (“the uncharged emails”),
which occurred between tame181@yahoo.com and another
individual on November 12, 2008 [all misspellings
uncorrected]:
To tame181@yahoo.com: I’ve always wanted to
get a kid fukd up and use his holes, man
From tame181@yahoo.com: well give me a
minimum age to work off of
To tame181@yahoo.com: 10
From tame181@yahoo.com: wow, that could be
interesting to watch, but you would probably do
damage if you’re rough. I know where to get
younger too
To tame181@yahoo.com: 4yr old?
From tame181@yahoo.com: would you seriously
put you cock in something that little?
4 No. 17-1311
To tame181@yahoo.com: What’s a good age then,
man … ideally he’d be 12 or 13
From tame181@yahoo.com: 6 could be cool, they
would cry and scream though
To tame181@yahoo.com: Would my cock fit!?
From tame181@yahoo.com: not comfortably.. :-)
but yes it would fit,
To tame181@yahoo.com: nice
From tame181@yahoo.com: Would you wanna do
something like that stud. and how much is the
G? and how much do I need?
To tame181@yahoo.com: i’d be interested in it,
yeah. if u say u got away with it, I prob could.
From tame181@yahoo.com: my bud wants to fist
his boi and he’s agains it...so he wants to G so he
can do it anyway, but he needs to be totally out
for a while
To tame181@yahoo.com: ok. you won’t need
much then 25 bucks worth maybe.
From tame181@yahoo.com: ok explain how we
use it i’ve never done it before.....how long will
it keep him out and how out will he be?
To tame181@yahoo.com: You’ll have to measure
it. 2cc is normal dose. 5cc will pass him out so
nothing can wake him up for at least an hour.
No. 17-1311 5
From tame181@yahoo.com: mix it with alcohol, or
anything?
To tame181@yahoo.com: mix it with juice. alcohol
could be dangerous
From tame181@yahoo.com: does it have any taste?
how long until it works
To tame181@yahoo.com: yes, tastes bad. works
w/in 5 to 10 mins. wears off in and hour to an
hour and a half usually . . .
From tame181@yahoo.com: So basicly I need to
put it in something that he’s not used to the taste
so he wont notice
The government argued that the uncharged emails were
admissible under Rule 404(b) for purposes of proving identity,
intent, and motive. Norweathers argued first that the
uncharged emails were impermissible propensity evidence,
and second that even if they were relevant for a non-
propensity purpose, their probative value was substantially
outweighed by the danger of unfair prejudice, and therefore,
were inadmissible pursuant to Rule 403.
In a written ruling, the district court engaged in an analysis
under both Rules 404(b) and 403 and held that the uncharged
emails were admissible. As to Rule 404(b), the court found that
the government had established a propensity-free chain of
reasoning to support its use of the uncharged emails, namely
that they tended to weaken Norweathers’ anticipated defense
that a different person briefly logged into his account to
distribute the pornographic material. Moving on to Rule 403,
6 No. 17-1311
the court acknowledged that the uncharged emails carried
considerable prejudice because of their sexual nature and
potential to lead to a propensity inference. The court noted,
however, that Norweathers did not dispute that the issues
of identity and intent would be contested at trial. Therefore,
because the uncharged emails could be used to show that
Norweathers, and not another individual, sent the charged
emails, and that he knew the emails contained images of child
pornography, the court held that their probative value was not
substantially outweighed by the danger of unfair prejudice.
Finally, the court urged the parties to confer on the possibility
of a stipulation or proposed jury instruction, in an effort to
decrease the potential for unfair prejudice.
The trial began on November 16, 2015. The FBI agents who
executed the search warrant at 1-800-Radiator testified that
Norweathers was not initially present, but when he returned
to the premises, he waived his Miranda rights and agreed to
speak with them. The agents testified that in response to their
questions, Norweathers stated that he viewed, downloaded,
and traded images of child pornography, that the images on
the desktop computer were his, and that he traded images of
child pornography two to three times per week using his
Yahoo email account and a peer-to-peer sharing program. He
provided agents with his usernames and passwords, one of
which was the tame181@yahoo.com account.
In that account, the agents found emails indicating that
Norweathers used the account for personal business during the
same time period in which the charged emails were sent. For
example, they found emails containing information from bank
accounts in Norweathers’ name, as well as receipts for online
No. 17-1311 7
orders of various items and services that contained Nor-
weathers’ name and home address. The government also
elicited testimony to demonstrate that one of the charged
emails (the August 4, 2009, email) was sent from an IP address
that was issued to 1-800-Radiator by its internet service
provider.
Before the uncharged emails were admitted at trial, the
parties engaged in a colloquy with the court outside the
presence of the jury regarding a proposed jury instruction on
the uncharged emails. During the discussion, Norweathers’
counsel renewed his objection to the admission of the emails,
but did not argue the point further. The government explained
to the court that it had offered Norweathers’ counsel a
stipulation to redact and “sanitize” the uncharged emails
before presenting them to the jury, and that Norweathers’
counsel had rejected the stipulation. Norweathers’ counsel
confirmed the government’s account of the proposed
stipulation. Per the parties’ agreement, the following jury
instruction was read at the time the government introduced the
uncharged emails, as well as at the end of trial:
Members, of the jury, you’re about to hear
evidence that the defendant sent emails, other
than the ones charged in the indictment. Before
using this evidence, you must decide whether it
is more likely than not that the defendant did
send the emails that are not charged in the
indictment. If you decide that he did, you may
consider this evidence to help you decide the
identity, motive, and knowledge of the person
8 No. 17-1311
who sent the charged emails. You may not
consider it for any other purpose.
After the government rested its case-in-chief, Norweathers
testified in his own defense. First, he denied that he made any
incriminating statements to the FBI agents on the day the
search warrant was executed. He admitted, however, that the
tame181@yahoo.com account was his personal email account
and that he sent the charged emails. Norweathers testified that
he believed the recipient of the emails was an FBI agent and
that he was attempting to assist in an investigation into child
pornography distribution. Norweathers was not asked and did
not testify about the uncharged emails.
In rebuttal, the government called witnesses to testify that
Norweathers was never a cooperating source for the FBI, and
that the recipient of the charged emails was not an FBI agent.
On November 19, 2015, the jury found Norweathers guilty on
all three counts. The district court sentenced him to 250
months’ imprisonment, and Norweathers timely appealed.
II. ANALYSIS
Norweathers argues that the court’s decision to allow the
government to present the uncharged emails to the jury
deprived him of a fair trial due to the inflammatory nature of
the emails. We review a district court’s decision to admit
evidence of other bad acts for an abuse of discretion. United
States v. Schmitt, 770 F.3d 524, 532 (7th Cir. 2014). “Under this
standard, we will defer to the district court unless no
reasonable person could adopt its view.” Id. Even if we make
such a finding, reversal is only warranted “if the ‘average juror
would find the prosecution’s case significantly less persuasive
No. 17-1311 9
without the improper evidence.’” Id. (quoting United States v.
Garcia-Avila, 737 F.3d 484, 490 (7th Cir. 2013)).
Federal Rule of Evidence 404(b) prohibits the use of
evidence of a defendant’s other bad acts to show his propensity
to commit a crime. Fed. R. Evid. 404(b)(1); Schmitt, 770 F.3d at
532. However, this type of evidence may be admissible for
other purposes, such as proving motive, intent, knowledge, or
identity. Fed. R. Evid. 404(b)(2). As we have explained, though,
simply identifying a proper purpose is not enough. United
States v. Gomez, 763 F.3d 845, 856 (7th Cir. 2014) (en banc).
“[T]he Rule allows the use of other-act evidence only when its
admission is supported by some propensity-free chain of
reasoning.” Id. Still, even if the proper purpose and chain of
reasoning are established, the evidence may be excluded under
Rule 403 if its probative value is substantially outweighed by
a danger of unfair prejudice. Id. at 856–57.
Before Norweathers took the witness stand, the
government had no indication he would testify that he
believed he was working with the FBI. Until that time,
Norweathers made it apparent that he intended to defend
against the charges by arguing that someone else sent the
charged emails, and that he did not know that his computer
hard drive contained images of child pornography.
At the time of the district court’s written ruling, Nor-
weathers did not dispute that the issues of identity and intent
would be contested at trial. Then, in his opening statement,
Norweathers’ counsel reminded the jury numerous times that
the specific issue at trial was not whether Norweathers’
computer or his email account contained child pornography,
10 No. 17-1311
but whether Norweathers himself was responsible for sending
the emails and possessing the images. Additionally, through
his cross-examinations of government witnesses, defense
counsel suggested that the computer’s location in an open
workspace and its lack of password protections indicated that
anyone could have accessed it. He questioned the
government’s computer forensics witness about the possibility
of someone adding files to the hard drive before it was stored
and logged as evidence. Defense counsel also asked one of the
FBI agents whether a computer virus could have been respons-
ible for the charged emails’ content. Thus, before Norweathers
testified, it was more than reasonable to assume that his
defenses were based on the issues of identity and intent.
In light of those anticipated defenses, it is easier to identify
the relevance of the uncharged emails to particular facts of
consequence, without leading to a propensity inference. See id.
at 856 (“[W]e have more recently emphasized the importance
of identifying the non-propensity theory that makes the other-
act evidence relevant and specifically asking how the evidence
tends to make a particular fact of consequence more or less
likely.”). The fact that Norweathers used the
tame181@yahoo.com account to discuss his sexual proclivity
for young children, if proven, would tend to make it more
likely that Norweathers, and not someone else, used that
account to send emails containing images of child
pornography. That same fact would also tend to make it more
likely that he intentionally, rather than unwittingly, sent the
charged emails and possessed the pornographic images located
on his hard drive.
No. 17-1311 11
There is, undoubtedly, a fine distinction between the
emails’ tendency to prove identity and intent and the
possibility that the same evidence could lead to an
impermissible propensity inference (i.e., that someone who
engages in such an illicit discussion is more likely to have
possessed and transported child pornography). But, Rule 404
does not require exclusion simply because a propensity
inference can be drawn. Id. “[R]ather, Rule 404(b) excludes the
evidence if its relevance to ‘another purpose’ is established only
through the forbidden propensity inference.” Id. Here, because
we can identify a chain of reasoning demonstrating the emails’
relevance to identity and intent that does not necessarily lead to
a propensity inference, we cannot say the district court abused
its discretion in finding them admissible under Rule 404.
Norweathers argues though, as he did in the district court,
that Rule 403 prevents the uncharged emails’ admissibility
notwithstanding any 404(b) analysis. Without question, the
uncharged emails are inflammatory and the prejudice they
present is obvious. However, as we have explained, they were
also highly probative of the issues that, at the time, appeared
to be central to Norweathers’ anticipated defense. See id. at 857
(“[T]he degree to which the non-propensity issue actually is
disputed in the case will affect the probative value of the other-
act evidence.”). It is also difficult for Norweathers to rely on
the emails’ prejudicial value as a reason for exclusion, given
that the government offered to present a less prejudicial,
sanitized version of the exchange, and he rejected it. Under the
circumstances, the district court’s conclusion under Rule 403
was not unreasonable, and therefore, it did not abuse its
discretion. See Schmitt, 770 F.3d at 532 (“[W]e will defer to the
12 No. 17-1311
district court unless no reasonable person could adopt its
view.”).
However, even if it was error for the court to admit the
uncharged emails, it was not reversible error. As an initial
matter, while it is clear that the jury rejected the explanation
Norweathers gave from the witness stand, we acknowledge
that Norweathers’ testimony should not factor into any
harmless error analysis. It is fair to assume that his defense
strategy changed once the uncharged emails were admitted.
Without those emails, he may well have declined to testify and
offer the explanation he did.
Still, without considering the uncharged emails and Nor-
weathers’ admissions on the witness stand, there was
substantial evidence for the jury to rely upon for a guilty
verdict. The government did mention the uncharged emails in
its closing argument, but placed little reliance on them. Instead,
the government highlighted the IP address evidence linking
the charged email to Norweathers’ workplace, the evidence
tying Norweathers to the tame181@yahoo.com account, and
perhaps most significantly, Norweathers’ admissions to FBI
agents on the day of the search. With that evidence in mind, we
are not convinced that the jury would have found the
government’s case significantly less persuasive absent the
uncharged emails. See id. Therefore, reversal is not warranted.
III. CONCLUSION
For the foregoing reasons, the conviction is AFFIRMED.