NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 21, 2011
Decided October 4, 2011
Before
RICHARD D. CUDAHY, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 10‐3562
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Central District of Illinois.
v. No. 09‐20072‐001
JOHN C. KEITH, Michael P. McCuskey,
Defendant‐Appellant. Chief Judge.
O R D E R
A grand jury returned an indictment against John Keith, charging him with one
count of distributing child pornography, 18 U.S.C. § 2252A(a)(2)(A), three counts of
receiving child pornography, id., two counts of possessing child pornography, id.
§ 2252A(a)(5)(B), and one count of destroying evidence, id. § 1519. A jury found him guilty
on all counts, and he was sentenced to 240 months’ imprisonment. Keith filed a notice of
appeal, but his appointed lawyer seeks to withdraw on the ground that the appeal is
frivolous. See Anders v. California, 386 U.S. 738 (1967). Keith opposes counsel’s motion, see
CIR. R. 51(b). We review only the potential issues identified in counsel’s facially adequate
brief and in Keith’s response. See United States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).
We grant counsel’s motion to withdraw and dismiss the appeal.
No. 10‐3562 Page 2
Before trial Keith moved to suppress statements that he made to law‐enforcement
officials during the investigation and arrest, when he admitted to downloading and sharing
illegal child‐pornography images through peer‐to‐peer filesharing software called
Limewire. He argued that these admissions should be suppressed because he made them
under coercive circumstances or without being advised of his rights under Miranda v.
Arizona, 384 U.S. 436 (1966). He also sought to suppress all evidence seized by law‐
enforcement officials. With both parties’ agreement, the district court delayed ruling on the
motion until the trial’s conclusion, a practice we find odd and do not encourage. See FED. R.
CRIM. P. 12(d) (“The court must decide every pretrial motion before trial unless it finds good
cause to defer a ruling.”).
At trial FBI agents testified to using Limewire to search for internet protocol (IP)
addresses offering child pornography. Their searches uncovered an IP address belonging to
Keith’s father in Kankakee, Illinois. Kankakee police told agent Jeffrey Heinze that Keith’s
father had been seen observing children near a school bus stop. Believing that Keith’s father
might be molesting children and sharing child pornography, Heinze obtained a warrant to
search the Keith residence and seize digital media. Agents entered the residence a few days
later at 5:50 p.m. and had their attention piqued after noticing Keith in a bedroom using a
laptop. Agent Steven Evans recalled that Keith appeared nervous and responded to
questions with “suspicious” answers. Keith told Heinze that he knew the agents were there
because of “something that I was doing peer‐to‐peer” and acknowledged being the only
resident who used Limewire. Meanwhile, a detective who examined Keith’s laptop with
forensic software noticed that a file labeled “Limewire” and videos had been deleted at 5:56
p.m. Some deleted files had been placed on a USB adapter containing a memory card. When
agents confronted Keith about these files, he responded that he had deleted them after
seeing agents approaching the house. He admitted to using Limewire to search for,
download, and share child‐pornography images and to moving files onto a memory card,
and he acknowledged downloading 60 child‐pornography images that agents found on the
laptop.
Agent Greg Catey arrested Keith a year later. After receiving Miranda warnings,
Keith told Catey about using Limewire to download child pornography. Keith allowed
Catey to search his new laptop and other digital media; two months later Catey obtained a
warrant and searched and seized those materials.
At trial the government introduced 32 still images or video clips of child
pornography found on Keith’s computer equipment. Keith, who stipulated that the images
depicted child pornography, moved under Federal Rule of Evidence 403 to bar the
government from showing any more images, which he said were overly prejudicial. The
court denied the motion, explaining that the government’s presentation of the images to the
No. 10‐3562 Page 3
jury was appropriately limited; ten of the images were subsequently re‐shown to the jury
during the testimony of a pediatrician, who identified the children as being minors.
After the government presented its case, the district court denied Keith’s motion to
suppress. The court ruled that his statements to law‐enforcement officials were admissible
because he was not in custody during the investigation and he had voluntarily waived his
Miranda rights during the arrest; the court also found admissible the evidence seized during
the investigation and arrest because it was based on warrants that were properly issued.
Keith subsequently moved for a judgment of acquittal, see FED. R. CRIM. P. 29(c), which the
court denied.
The jury ultimately convicted Keith on all counts. He moved for a new trial based on
insufficient evidence, see FED. R. CRIM. P. 33(a), but the court denied the motion. The court
sentenced Keith to the statutory maximum of 240 months’ imprisonment on each count of
distributing and receiving child pornography and destroying evidence, 18 U.S.C. §§ 1519,
2252A(b)(1), and to the statutory maximum of 120 months’ on each possession count, id.
§ 2252A(b)(2), to run concurrently.
In her Anders submission, counsel first considers but correctly rejects arguing that the
district court erred in denying Keith’s motion to suppress the materials seized during the
investigation. Probable cause to support a search warrant exists when the totality of the
circumstances known at the time would persuade a reasonably prudent person that a search
will uncover evidence of a crime. Illinois v. Gates, 462 U.S. 213, 238 (1983); United States v.
Carson, 582 F.3d 827, 831 (7th Cir. 2009). Such circumstances existed here: agents informed
the magistrate judge that the Keiths’ IP address was offering child pornography through
filesharing software and that local police had seen Keith’s father near a school bus stop.
Counsel next considers whether Keith could argue that the district court erred in
denying his motion to suppress statements made to agents Evans and Heinze during the
investigation because they did not read him his Miranda rights. We agree with counsel that
this challenge would be frivolous because Keith was not in custody when questioned by
both agents. A person is “in custody” for Miranda purposes when, given the totality of the
circumstances, a reasonable person would not have felt free to end the interrogation and
leave. Yarborough v. Alvarado, 541 U.S. 652, 662 (2004). Factors relevant to this inquiry
include whether the suspect consented to speak with the officers; whether the officers
informed the suspect that he was not under arrest and was free to leave; whether there was
a threatening presence of several officers and a display of weapons or physical force; and
whether the officers’ tone of voice was such that their requests were likely to be obeyed.
United States v. Littledale, — F.3d —, 2011 WL 2708633, at *2–3 (7th Cir. July 12, 2011); United
States v. Snodgrass, 635 F.3d 324, 327–28 (7th Cir. 2011). Here, Keith was not restrained
No. 10‐3562 Page 4
during his conversations with Evans and Heinze; the agents’ weapons were not drawn nor
their voices raised; and Heinze told Keith that he was not under arrest, was free to leave,
and did not have to speak if he did not want to.
Counsel also considers but correctly rejects arguing that the district court erred in
denying Keith’s motion to suppress statements made to Catey without a voluntary and
knowing waiver of his Miranda rights. A suspect’s valid waiver of his Miranda rights
requires that the “‘totality of the circumstances surrounding the interrogation’ reveal both
an uncoerced choice and the requisite level of comprehension.” Moran v. Burbine, 475 U.S.
412, 421 (1986) (internal citation omitted); see United States v. Vallar, 635 F.3d 271, 284 (7th
Cir. 2011). Here Catey testified that he spoke to Keith in a normal tone without drawing any
weapons, and that Keith appeared to understand his Miranda rights, did not display any
cognitive difficulties, spoke in a “very conversational” manner, and never asked to have a
lawyer present.
Counsel next considers whether Keith could argue that the district court abused its
discretion in denying his motion to bar additional child‐pornography images from being
shown to the jury under Federal Rule of Evidence 403. Counsel suggests that the child‐
pornography images were overly prejudicial, especially since Keith had offered to stipulate
to their content. But offers of stipulation are not persuasive in the context of child‐
pornography prosecutions, see, e.g., United States v. McCourt, 468 F.3d 1088, 1091–92 (8th Cir.
2006); United States v. Campos, 221 F.3d 1143, 1149 (10th Cir. 2000). Relevant evidence “may
be excluded if its probative value is substantially outweighed by the danger of unfair
prejudice,” FED. R. EVID. 403, but evidence should not be excluded merely because it might
be “graphic or disturbing,” United States v. Kapp, 419 F.3d 666, 667 (7th Cir. 2005). Here the
images were probative because they showed Keith’s possession of child‐pornography
images and his knowledge of possessing such images. Given that the government showed
the jury only 32 of the 4,242 images found on Keith’s computer—and those images were
shown for a limited time period—we would conclude, as have other circuits in similar
cases, that the court appropriately found that the risk of prejudice did not substantially
outweigh the images’ probative value. See United States v. Alfaro‐Moncada, 607 F.3d 720, 734
(11th Cir. 2010); United States v. Polouizzi, 564 F.3d 142, 152–53 (2d Cir. 2009); United States v.
Ganoe, 538 F.3d 1117, 1123–24 (9th Cir. 2008); United States v. Morales‐Aldahondo, 524 F.3d
115, 119–20 (1st Cir. 2008); McCourt, 468 F.3d at 1091–93. We agree with counsel that a Rule
403 challenge would be frivolous.
Counsel also considers but correctly rejects arguing that the evidence was
insufficient to convict Keith of all counts charged in the indictment. We would affirm the
judgment based on the sufficiency of evidence “if any rational jury could have found the
elements of the crime beyond a reasonable doubt.” United States v. Wortman, 488 F.3d 752,
No. 10‐3562 Page 5
754–55 (7th Cir. 2007); see United States v. Muick, 167 F.3d 1162, 1166 (7th Cir. 1999). On the
child‐pornography charges, 18 U.S.C. § 2252A(a)(2)(A), (a)(5)(B), a rational jury could have
found sufficient evidence because witnesses testified that Keith admitted to using Limewire
to download and share child pornography, and witnesses identified images recovered from
his computers. Moreover, experts in computer forensics testified that images found on
Keith’s computers depicted known victims of child molestation and sexual abuse, and a
pediatrician opined that the persons depicted were minors. On the destruction‐of‐evidence
charge, id. § 1519, a rational jury could have found sufficient evidence because agents
testified that Keith admitted to deleting and moving files from his laptop onto a flash drive
upon seeing agents approach his house. Also, forensic evidence showed that files were
deleted from Keith’s computer just minutes after the agents’ arrival, and agents testified
that, upon entering the house, they saw Keith using his computer. Keith maintains in his
Rule 51(b) response that there was insufficient evidence for conviction because he never
made statements to agents, that other people used the computers, that any downloaded
images were accidents, and that he did not intend to destroy evidence. But a reasonable jury
could disagree, and we would not reweigh the evidence or second‐guess the jury’s
determinations about the witnesses’ credibility. See United States v. Green, 648 F.3d 569, 578
(7th Cir. 2011).
Turning to his sentence, Keith asserts in his Rule 51(b) response that the district court
erred by not adequately considering his argument that he deserved a lower sentence for
providing care for his ill parents and brother. But this argument would be frivolous. His
240‐month sentence was already below the properly‐calculated guidelines range of 292 to
365 months and thus presumptively reasonable, Rita v. United States, 551 U.S. 338, 341
(2007); United States v. Poetz, 582 F.3d 835, 837 (7th Cir. 2009), and sentencing courts may
freely reject without discussion “stock arguments” like the one Keith made about his family
situation. United States v. Martinez, 520 F.3d 749, 753 (7th Cir. 2008) (internal citation
omitted). At any rate, Keith mentioned his caregiving responsibilities at the end of his
allocution, and the court sufficiently explained why it would not be swayed: “Maybe you
have been a caregiver, but you sure spent a lot of time on the computer violating the law
while you were doing it.”
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.
Keith’s motion for appointment of substitute counsel is DENIED as moot.
