United States v. Michael Manning , 738 F.3d 937 ( 2014 )

United States Court of Appeals
For the Eighth Circuit
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No. 13-1016
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Michael Manning
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: September 27, 2013
Filed: January 3, 2014
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Before MURPHY, MELLOY, and SHEPHERD, Circuit Judges.
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MELLOY, Circuit Judge.
A jury convicted Michael Manning of one count of receipt of child
pornography and one count of possession of child pornography in violation of 18
U.S.C. §§ 2252A(a)(2) and (a)(5)(B), respectively. The district court1 sentenced him
1
The Honorable Carol E. Jackson, United States District Judge for the Eastern
District of Missouri.
to the statutory maximum for each offense: 240 months for receipt and 120 months
for possession. The court ordered the sentences to run consecutively, resulting in a
total prison term of 360 months. The court also imposed a lifetime term of supervised
release.
Manning presents several arguments on appeal. First, he challenges the
sufficiency of the evidence at trial, claiming the government failed to prove beyond
a reasonable doubt that he knowingly possessed or received child pornography.
Second, he contends the district court erred in admitting online conversations he had
with other persons discussing the exchange of child pornography. Third, he argues
his convictions for both receipt and possession violate his Fifth Amendment right to
be free from double jeopardy. Fourth, Manning alleges the ultimate sentence the
district court imposed was substantively unreasonable. We affirm.
I. Background
We discuss the facts of this case "'in the light most favorable to the jury's
verdict.'" United States v. Worthey, 716 F.3d 1107, 1109 (8th Cir. 2013) (quoting
United States v. Tremusini, 688 F.3d 547, 550 n.2 (8th Cir. 2012)).
In July 2010, Missouri law enforcement officers used an online "peer-to-peer"
file-sharing program to download three images and one video of child pornography
from an Internet Protocol ("IP") address in Sullivan, Missouri. The IP address
originated from an account belonging to Michael Manning. Law enforcement
subsequently executed a search warrant at Manning's residence on September 25,
2010. Manning was the only person at the home when officers arrived, and he denied
downloading or having child pornography in his possession. Manning admitted
during the search that he owned a laptop, that it was password-protected, that his
login username to access the computer was "mem659," and that he used a secured
internet connection. He suggested in response to questioning that three of his friends
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could have accessed his computer and downloaded the images. Despite going
through a contentious divorce with his wife at the time, Manning did not suggest to
anyone during the search that she or someone she knew may have been responsible
for putting the child pornography on his computer.
The search of Manning's residence recovered, among other things, three
compact discs and a laptop computer. Initially, the evidence log for the search
recorded only two discs found in separate plastic cases. An officer involved with the
investigation testified at trial that a third disc (the "Memorex disc") was located
behind another disc in one of the plastic cases. Before leaving Manning's home, one
of the officers sealed the plastic cases in an envelope and placed them in the officer's
locked office. When the envelope was subsequently transferred to a forensics lab and
unsealed to investigate the discs' contents, the forensics examiner found the Memorex
disc. The Memorex disc contained 14 videos of child pornography and was added to
the inventory list of items seized from Manning's home. The detective who
conducted the forensics examination did not find any indication that the contents of
the Memorex disc had been altered after the time of the search.
Law enforcement found 1,029 images and 49 video files on the laptop, all
depicting child pornography. In addition, an analysis of the laptop revealed several
online chat conversations conducted on the laptop by a person employing the
usernames "boost_virgin" and "mem659." During these conversations, the person
operating under username "boost_virgin" said at various times that he was 31 years
old, from Missouri, five feet eight inches tall, and the father of two sons who were 6
and 10 years old. Based on this identifying information and the fact that the chats
were conducted by a person using Manning's laptop, law enforcement determined it
was Manning, operating under the user names "boost_virgin" and "mem659," who
engaged in these chats with other unknown individuals from the internet.
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The chat conversations contained prodigious amounts of incriminating
information against Manning. Manning frequently discussed with other internet users
the different "types" of child pornography he was seeking to download and his
enjoyment of child pornography in general. The online chats also discussed
Manning's sexual abuse of his 6 and 10 year old sons. The sons were interviewed by
social services and initially denied any sexual abuse by their father. The younger son
was later re-interviewed and disclosed that Manning sexually abused him on multiple
occasions.
At trial, the jury saw samples of the images and videos depicting child
pornography recovered from the laptop and Memorex disc. The jury also saw several
portions of the online chat conversations, but the district court granted Manning's
pretrial motion in limine to exclude sections of the chats detailing Manning's abuse
of his children. Manning objected to the admission of any of the chat conversations,
arguing that there was insufficient evidence to establish that he was one of the
participants in the chats and that they therefore constituted inadmissible hearsay.
Manning separately challenged the admission of the Memorex disc, contending that
chain-of-custody questions rendered the disc inadmissible. The district court
overruled these objections.
Manning was the only witness for the defense. He testified that he owned the
laptop recovered by law enforcement but that the computer desk where the laptop and
discs were found belonged to him and his wife. According to Manning, although he
and his wife were going through a divorce and she did not live at the home at the time
of the search, she knew the usernames and passwords to access both his computer and
the wireless internet in the home. He believed his wife and a man Manning suspected
was having an affair with her had either broken into his home or used "remote access
software" to plant the child pornography and chat conversations on his computer. As
stated earlier, Manning mentioned neither his wife nor her purported lover as
potential culprits to the officer who interviewed him during the search of his home.
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The jury returned guilty verdicts for both receipt and possession of child
pornography. For the receipt count, the jury found that Manning downloaded certain
images depicting child pornography using a "peer-to-peer" file-sharing service. For
the possession count, the jury found that Manning possessed other child pornography
images on the Memorex disc.
During the sentencing hearing, the government presented the portions of the
chat transcripts excluded at trial that detailed Manning's sexual abuse of his own sons.
In addition, a social investigator testified about an interview she conducted with
Manning's youngest son where the son told the investigator how Manning had
repeatedly sexually abused him. A video-taped interview with the child discussing
the abuse was played for the district court during the hearing. The court considered
and rejected several of Manning's objections to the presentence report and imposed
a sentence of 240 months for the receipt conviction and 120 months for the
possession conviction. The court ordered that the sentences run consecutively,
resulting in a total term of imprisonment of 360 months. Manning received a life
term of supervised release to follow his prison sentence. This appeal followed.
II. Discussion
The discussion proceeds as follows. First, we review evidentiary rulings
concerning the district court's admission of the chat transcripts and the Memorex disc
into evidence at trial. Second, we determine whether the evidence was sufficient to
support the jury's verdicts that Manning knowingly received and possessed child
pornography. Third, we decide whether Manning's conviction for both receipt and
possession based on the evidence presented at trial constitutes double jeopardy in
violation of the Fifth Amendment. Fourth, we review the substantive reasonableness
of Manning's sentence.
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A. Evidentiary Challenges
We review evidentiary rulings of a district court for abuse of discretion, United
States v. Yarrington, 634 F.3d 440, 447 (8th Cir. 2011), giving substantial deference
to the district court's determinations, United States v. Van Elsen, 652 F.3d 955, 958
(8th Cir. 2011). This court may reverse only if an error "affects the substantial rights
of the defendant" or has "more than a slight influence on the [jury's] verdict."
Yarrington, 634 F.3d at 447.
i. Chat Transcripts
Manning argues that the district court abused its discretion in admitting chat
transcripts related to the usernames "boost_virgin" and "mem659" discovered on
Manning's computer. These chat conversations were used to establish Manning's
interest in trading child pornography online, as well as his sexual interest in children.
Manning renews his objection here that the chats constitute hearsay because they
were offered to prove that Manning was the speaker in the chats even though the
district court allegedly did not make a preliminary finding of fact under Federal Rule
of Evidence 104(a) as to whether Manning was one of the persons engaged in the
chats. Alternatively, Manning asserts that the government did not establish by a
preponderance of the evidence that Manning was one the persons in these
conversations. Manning also challenges the admission of the statements in the chat
transcripts made by his chat conversation partners, arguing that such statements are
hearsay not within any exception.
Manning's arguments concerning the admissibility of the chats are
unpersuasive. Before admitting portions of the transcripts of the online chat
conversations into evidence, the district court heard extensive arguments from
Manning's counsel that the chats constituted inadmissible hearsay and did not
sufficiently identify Manning as the person operating under the usernames
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"boost_virgin" and "mem659." In ruling on admissibility, the district court confirmed
that portions of the chats contained identifying information about Manning. In
addition, the government presented testimony of a law enforcement officer who
helped to execute the search warrant, and the officer testified that the defendant
admitted adopting the username "mem659" for his computer account. The username
for his computer account was the same one used in some of the chats.
Such identifying information, coupled with the undisputed fact that the chats
were found on Manning's personal laptop found in a home where he lived alone, was
sufficient for the district court to find that Manning was the person participating in
the chats under the usernames "boost_virgin" and "mem659." Accordingly, we hold
that the court did not abuse its discretion in admitting the chats into evidence.2
The chats were admissible for an additional reason: as circumstantial evidence
(i.e., a non-hearsay purpose) associating Manning with the child pornography found
on his computer. In United States v. Koch, 625 F.3d 470 (8th Cir. 2010), our court
affirmed a district court's decision to admit evidence of documents found on a
computer and flash drive that contained information identifying the defendant. Id. at
479–80. This court held that it was within a trial court's discretion to admit the
documents as circumstantial evidence associating the defendant with the computer
and flash drive (both of which contained illegal images). Id. at 480. As in Koch, here
the chat transcripts found on the computer can alternatively be construed as
2
To the extent Manning argues the district court made no explicit finding that
one of the speakers in the chats was Manning, we disagree. In any event, such an
argument is without merit, as the district court made at least an implicit finding and
is not required to make an explicit finding in its admissibility determination. See
Wright, et al., Preliminary Fact Determinations by Judge—Procedure, 21A Fed. Prac.
& Proc. Evid. § 5053.6 (2d ed.) (noting that F.R.E. 104(a) "does not require the judge
to make explicit findings of fact") (emphasis added).
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circumstantial evidence connecting Manning to the child pornography on the
computer and on the Memorex disc discovered near the computer. In other words,
no matter how the chat conversations are characterized, the district court was within
its discretion to admit them.
Further, the statements of the unknown parties to the chat conversations with
Manning were not hearsay because the statements were not offered for their truth but
rather to provide context for Manning's responses. In United States v. Cooke, 675
F.3d 1153 (8th Cir. 2012), this court held that an unknown individual's statements in
a sexually explicit email exchange with a defendant were not hearsay because the
unknown individual's statements were not offered for their truth. Id. at 1156. For
example, the unknown person's statement: "I am 16 is that okay?" provided context
for the defendant's response: "thats cool that ur young, but I don't want u to narc." Id.
Our court held that the unknown person's statement provided context for the
defendant's response and that the truth of the statement was immaterial. Id. at
1156–57; see also United States v. Burt, 495 F.3d 733, 738–39 (7th Cir. 2007)
(concluding that online chat conversations discussing child pornography were not
offered for their truth but to provide context for defendant's admissions).
The same analysis applies to this case. The statements of the unknown
participants in the chat conversations found on Manning's computer were not offered
for their truth, but to provide context for Manning's responses—responses that
revealed Manning's identity, his preferences for different types of child pornography,
and his desire to exchange child pornography with other people online. The district
court was within its discretion in admitting the conversations.
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ii. Memorex Disc
Manning next argues that the district court abused its discretion in admitting
the Memorex disc into evidence over Manning's foundation and chain-of-custody
objections. Specifically, Manning highlights inconsistencies in the evidence logs
documenting the receipt of multiple compact discs into evidence. He believes the
government provided an insufficient evidentiary basis for the district court to admit
the disc.
Manning's argument is unsupported by law or the facts of this case. Generally,
physical evidence may be admitted if a chain of custody is established that shows a
"reasonable probability that the evidence has not been changed or altered." United
States v. Brumfield, 686 F.3d 960, 965 (8th Cir. 2012). In resolving chain-of-custody
challenges, this court presumes that custodians have preserved the integrity of the
evidence absent a sufficient showing of bad faith, ill will, or proof of tampering. Id.
A defect in the chain of custody "typically affects the weight of the evidence rather
than its admissibility." Id.
The government presented evidence that during the search of Manning's
residence, officers recovered what they believed were two compact discs in separate
plastic cases. When the Memorex disc was found behind one of the discs in one of
the plastic cases, the Memorex disc was added to the list of items seized. No proof
of bad faith, ill will, or tampering was shown, id., and any alleged inconsistencies
Manning pointed out in the evidence logs were properly challenged on cross-
examination. In other words, Manning offers no evidence to defeat the Memorex
disc's presumption of integrity; consequently, the district court did not abuse its
discretion in admitting it. See United States v. Wilson, 565 F.3d 1059, 1066 (8th Cir.
2009) ("The location and custody of the cellular phone were adequately identified and
[the defendant] has failed to aver any facts showing change or alteration of the images
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on the cellular phone. Accordingly, he has failed to rebut the presumption of
integrity. As a result, the district court did not abuse its discretion in admitting the
cellular phone.").
B. Sufficiency of the Evidence
Manning argues that the evidence was insufficient for a reasonable jury to
conclude beyond a reasonable doubt that he "knowingly" received and possessed
child pornography. This court reviews the sufficiency of the evidence in a jury trial
de novo, Yarrington, 634 F.3d at 449, but we examine the evidence in a light most
favorable to the jury's verdict, resolving factual disputes and accepting all reasonable
inferences in favor of upholding the verdict, id. We will affirm a jury's verdict "if any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt." Worthey, 716 F.3d at 1113. We examine the facts supporting
each conviction separately.
i. Receipt Conviction
Manning was convicted of violating 18 U.S.C. § 2252A(a)(2), which makes it
a crime to "knowingly receive[]" "any child pornography" that has been transported
in interstate commerce "by any means, including by computer." Manning claims no
reasonable jury could have concluded beyond a reasonable doubt that Manning
"knowingly" received the child pornography found on the hard drive of his laptop.
This is so, according to Manning, because the evidence never demonstrated directly
that he was the person who was using the computer to download the illegal images.
He argues that in light of his so-called "remote access" theory—that someone,
perhaps his wife or her purported lover, used a computer program to plant the child
pornography and chat conversations on his computer in order to frame him—no
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reasonable jury could conclude beyond a reasonable doubt that he was the person
who downloaded the files.
We disagree. The evidence presented at trial concerning Manning's knowledge
of receipt was strong and provided sufficient support for a guilty verdict. Law
enforcement initially identified a computer with an IP address listed in Manning's
name that was offering child pornography for download on a peer-to-peer file-sharing
service. Manning admitted to law enforcement that (a) he owned the computer
alleged to have downloaded internet pornography; (b) access to the computer and
internet was password-protected; and (c) he employed the username "mem659" for
the computer, which was also a username for some of the chats found on it. Those
chats further established Manning's knowledge of receipt, as they revealed, among
other things, copious amounts of discussion concerning the exchange of child
pornography with other users of file-sharing services. More directly, several chats
disclosed identifying information concerning Manning's height, weight, age, and state
of residence. This identifying information was disclosed in the context of discussing
the exchange of child pornography with others.
To the extent Manning believes he is entitled to relief based on his "remote
access" theory, he fundamentally misunderstands the role of the jury and the nature
of appellate review. "[I]t is axiomatic that we do not review questions involving the
credibility of witnesses, but leave credibility questions to the jury." United States v.
Dabney, 367 F.3d 1040, 1043 (8th Cir. 2004). The jury was free to reject Manning's
theory, and it did when it found that Manning was the person operating his computer
when the child pornography was downloaded. Accordingly, a reasonable jury could
conclude beyond a reasonable doubt that Manning knowingly received the unlawful
images.
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ii. Possession Conviction
18 U.S.C. § 2252A(a)(5)(B) criminalizes the knowing possession of child
pornography. Manning's possession conviction was based on images discovered on
the Memorex disc. Manning argues that no reasonable jury could conclude beyond
a reasonable doubt that he knowingly possessed the Memorex disc. Specifically, he
contends that the mere fact that the disc was seized during a search of his home was
insufficient, standing alone, to support a jury conviction.
Manning's argument fails to acknowledge the full scope of evidence against
him. For one, he lived alone in his home when the disc was recovered from the desk
where the laptop was seized. And the chat conversations detailing Manning's
extensive knowledge of, and interest in, child pornography, were probative as
circumstantial evidence regarding Manning's knowing possession of the Memorex
disc. The jury, exercising its role as trier of fact, rejected Manning's alternate
theory—that his wife had planted the disc in order to frame him. Accord United
States v. Huether, 673 F.3d 789, 797 (8th Cir. 2012) (concluding that the district court
correctly instructed the jury "as trier of fact" that they were free to accept or reject
testimony from witnesses at trial). We hold that the evidence was sufficient to
support the jury's verdict on possession.
C. Double Jeopardy
Manning argues that his convictions and sentences for both receipt and
possession of child pornography violate the Double Jeopardy Clause of the Fifth
Amendment. Manning failed to raise this argument below, so we review his claim
for plain error. "To obtain relief under a plain-error standard of review, the party
seeking relief must show that there was an error, the error is clear or obvious under
current law, the error affected the party's substantial rights, and the error seriously
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affects the fairness, integrity, or public reputation of judicial proceedings." United
States v. Mesteth, 687 F.3d 1034, 1037 (8th Cir. 2012).
The Double Jeopardy Clause forbids imposing multiple punishments for the
same criminal offense. United States v. Muhlenbruch, 634 F.3d 987, 1002 (8th Cir.
2011). To prove a violation, Manning must demonstrate that he was convicted of
"two offenses that are in law and fact the same offense." Id. (internal quotation marks
omitted). This circuit has held that possession of child pornography is a lesser-
included offense to receipt of child pornography. Id. at 1003 (concluding that proof
of receiving child pornography necessarily includes proof of possession of child
pornography and that "Congress did not intend to impose multiplicitous punishment
for these offenses"); compare 18 U.S.C. § 2252(a)(4)(B), with 18 U.S.C. § 2252(a)(2).
As such, the issue here is whether Manning's convictions for possession and receipt
"were based on the same facts." Huether, 673 F.3d at 798.
The amended indictment in this case charged Manning with one count of
receipt of child pornography and one count of possession of child pornography.
Significantly, the charges in the indictment were predicated on different facts and
images. The charge for receipt of child pornography was based on images
downloaded over the internet between August 14, 2010 and September 25, 2010. In
contrast, the charge for possession specified that at dates unknown but up until
September 25, 2010, Manning possessed the Memorex disc that contained two child
pornography video files different from the files identified in the receipt count.
Accordingly, the receipt and possession charges were based on separate facts.
This circuit has held that when a defendant is charged with both a greater and
lesser offense, "the jury must be instructed that they cannot convict [defendant] for
both offenses based on the same facts." Huether, 673 F.3d at 798. In Manning's case,
this means the jury could not use the same pieces of evidence to convict him of both
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receipt and possession. As discussed above, the indictment specified different facts
and images for each charge. Similarly, the jury form asked the jury to identify which
images they found Manning received on his laptop, and which images Manning
possessed on the Memorex disc. The jury selected different images for each offense.
Nothing in the record suggests Manning was convicted "of receiving the same images
that he was also found to have possessed," Huether, 673 F.3d at 798, and thus no
double jeopardy violation occurred, see United States v. Burman, 666 F.3d 1113,
1117 (8th Cir. 2012) ("Possession is generally a lesser-included offense of receipt;
however, in this case, the superceding indictment does not indicate that the receipt
and possession counts are based on the same facts and images.").
D. Sentencing Challenges
Manning argues that his 360-month sentence is substantively unreasonable
because the district court did not address a purported disconnect between the child
pornography guidelines under U.S. Sentencing Guidelines Manual § 2G2.2 and the
statutory sentencing factors under 18 U.S.C. § 3553(a) . Specifically, he claims that
the child pornography guidelines routinely produce sentences at or near the statutory
maximum penalties even in mine-run cases and reflect the political will of a few
Congressional members instead of the data-driven expertise of the United States
Sentencing Commission. Manning argues that he presents a "mine-run case," that his
conduct was "typical," and that therefore the district court abused its discretion by
relying too heavily on Section 2G2.2 in fashioning his sentence.
We review the substantive reasonableness of Manning's sentence under a
"deferential abuse-of-discretion standard." United States v. Beasley, 688 F.3d 523,
535 (8th Cir. 2012). An abuse of discretion may occur if a sentencing court ignores
a relevant factor that should have received significant weight, gives too much weight
to an irrelevant or improper factor, or commits a clear error of judgment even when
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weighing only appropriate factors. Id. If the district court imposes a within-
Guidelines sentence, this court presumes the sentence is reasonable, and Manning
bears the burden to rebut the presumption. Id.
Manning's argument is not persuasive. This court applies a presumption of
reasonableness to a within-Guidelines sentence, even if the guideline that provides
the sentence is a product of Congressional direction. See United States v. Black, 670
F.3d 877, 882 (8th Cir. 2012). And while a district court may choose to deviate from
the guidelines because of a policy disagreement, cf. Kimbrough v. United States, 552
U.S. 85, 110 (2007), "a district court is not required to do so," Black, 670 F.3d at
882. In this case, in addition to Manning's jury convictions for possession and receipt
of child pornography, at sentencing the government offered a videotape statement by
one of Manning's sons where the child detailed how his father had repeatedly sexually
abused him. The district court considered the child's testimony in arriving at
Manning's ultimate sentence. On its face, such testimony defeats Manning's argument
that he presents a "typical" child pornography case undeserving of a purportedly
draconian within-Guidelines sentence. We hold that Manning's sentence was not
substantively unreasonable.
III.
The evidence was sufficient to convict Manning of one count of receipt of child
pornography and one count of possession of child pornography. We reject Manning's
evidentiary challenges and his claim that his convictions for receipt and possession
in this case constitute double jeopardy. Accordingly, we affirm the judgment of the
district court.
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