United States v. Dustin Worthey , 716 F.3d 1107 ( 2013 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-2276
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Dustin L. Worthey
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: January 18, 2013
Filed: June 17, 2013
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Before WOLLMAN, GRUENDER, and SHEPHERD, Circuit Judges.
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WOLLMAN, Circuit Judge.
A jury convicted Dustin Worthey of one count of receiving child pornography
and one count of possessing child pornography, in violation of 18 U.S.C. § 2252(a)(2)
and (a)(4)(B). The district court1 sentenced Worthey to 180 months’ imprisonment.
1
The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.
Worthey appeals, arguing that the district court erred in denying his motion for a
change of venue, in denying his motions for judgment of acquittal and for a new trial,
and in admitting evidence of child pornography over his offer to stipulate thereto. He
also challenges his sentence. We affirm.
I. Background
We state the facts against Worthey “in the light most favorable to the jury’s
verdict.” United States v. Tremusini, 688 F.3d 547, 550 n.2 (8th Cir. 2012) (quoting
United States v. Fuller, 557 F.3d 859, 862 (8th Cir. 2009)).
On August 26, 2010, Arkansas State Police (ASP) Agent Doug Estes conducted
an undercover investigation of an Internet Protocol (IP) address that he suspected of
trading child pornography over FrostWire, an online peer-to-peer file-sharing
program. Estes performed an undercover “browse” of the suspect IP address, which
revealed files containing known images of child pornography being offered for
download. Estes viewed two of the images, confirmed that they were child
pornography, and transferred the case to ASP Agent Charles Roe, who was
geographically closer to the suspect IP address.
Roe contacted the Internet service provider of the suspect IP address and
learned that the suspect IP address was registered to Chandra Worthey at a residence
on the 200 block of Braden Street in Monette, Arkansas, and that the email address
“dman762000@gmail.com” was listed for the account. Roe then conducted
surveillance of the residence, confirmed for himself that the suspect images were
indeed child pornography, and obtained a search warrant.
On the morning of November 4, 2010, Roe, along with ASP Agent Ramey
Lovan and Homeland Security Investigations Agent Deryl Rowe, drove to the
Worthey residence to execute the search warrant. Upon their arrival, the agents
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discovered no one there. As the agents were ascertaining Worthey’s place of
employment, they were told by ASP Agent Mike Grimes that Worthey and his then-
wife, Chandra (collectively the Wortheys), were with him at ASP Headquarters. Roe
told Grimes to direct the Wortheys to return to their residence. Roe, Lovan, and
Rowe then proceeded to the Worthey residence. Upon being so instructed by Grimes,
Worthey said to Chandra, “Well, you are probably going to want to divorce me when
this is all over.” Grimes and the Wortheys then left separately for the Worthey
residence.
Upon arriving at the residence, Worthey approached Rowe and said, “I know
why you are here. The search warrant is for child pornography.” Worthey then
became extremely distraught, explaining his emotional state to Rowe by saying,
“Because I downloaded child pornography.”
Inside the residence, Roe found a Toshiba laptop computer, a preview of which
revealed child pornography. Roe seized, among other things, the laptop, five other
computers, and a wireless router from the Worthey residence. Roe took the laptop to
the Hi-Tech Crime Unit Computer Lab at the Paragould Police Department for
Jonesboro Police Department Agent Ernest Ward to analyze and kept the five other
computers to analyze himself. Roe’s week-long examination of the five other
computers revealed no child pornography on them.
Ward’s forensic examination of the laptop’s hard drive disclosed a user account
called “dman,” and Ward learned that the password “Badone76” was required to
access the user account; that the username and password were created on February
27, 2010; and that the email address associated with the laptop was “Dman76
something @gmail.” Ward also discovered a username for Arkansas State University
online that contained the name “Dustin Worthey.”
Ward found three file-sharing programs under the “dman” user account:
FrostWire, LuckyWire, and uTorrent, although FrostWire was predominantly used.
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Regarding the FrostWire account, Ward determined that the GUID2 number within
the FrostWire properties file matched the GUID number associated with Estes’s
undercover investigation. Ward found files containing child pornography in both the
“dman” FrostWire “incomplete” and “saved” folders.
Worthey was charged with receiving and possessing child pornography, in
violation of 18 U.S.C. § 2252(a)(2) and (a)(4)(B). Before trial, Worthey moved for
a change of venue, asking that his trial be held in Jonesboro, within the Jonesboro
Division of the Eastern District of Arkansas, instead of Little Rock, within the
Western Division of the Eastern District of Arkansas. The district court concluded
that concerns over security and the jury’s observation of Worthey in custody
outweighed any inconvenience placed upon the witnesses and Worthey’s family and
friends and thus denied the motion.
The government disclosed prior to trial that it intended to play up to five
seconds of each of four videos containing child pornography found in the “dman”
FrostWire “incomplete” folder, as well as up to five seconds of each of five videos
containing child pornography found in the “dman” FrostWire “saved” folder.3 The
video clips were a “representative sample of all of the child pornography” and did not
include “the worst” of the videos. Worthey sought to stipulate that the videos
contained child pornography and thereby preclude their introduction at trial. The
district court, though not having viewed the video clips, determined that although the
2
At trial, Estes explained that a GUID is a number assigned to an individual
computer by a file-sharing program that serves as “the identifier for that one
particular machine on the network[.]”
3
The record is unclear whether the government sought to and ultimately played
three or five seconds of each of the four videos or some combination thereof. The
testimony at trial, however, indicates that the government played five seconds from
at least one of the videos and up to five seconds from the other three videos.
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video clips were likely offensive, the government retained the right to present its
evidence. At trial, the government published the video clips to the jury.
Worthey moved for judgment of acquittal at the close of the government’s case
and again at the close of all of the evidence. The district court denied the motions.
Following the jury’s verdict, the district court denied Worthey’s motion for judgment
of acquittal and alternatively for a new trial.
Following Worthey’s conviction, a presentence report (PSR) was prepared.
Among other things, the PSR detailed an investigation by the Monette Police
Department that began after Chandra Worthey reported, shortly after the search
warrant was executed, that her daughter and son—Worthey’s stepdaughter and
stepson—had told her that Worthey had been molesting them. During the ensuing
investigation, Worthey’s stepdaughter and stepson reported, in detail, that Worthey
had sexually abused them.
The PSR recommended a base offense level of 22 and an adjusted offense level
of 38, which included a five-level enhancement for engaging in a pattern of activity
involving the sexual abuse or exploitation of a minor, see U.S.S.G. § 2G2.2(b)(5), as
well as a four-level enhancement for possessing child pornography portraying sadistic
or masochistic conduct or other depictions of violence, see id. § 2G2.2(b)(4). From
this and a criminal history category of I, the PSR calculated a United States
Sentencing Guidelines (Guidelines) range of 235-293 months’ imprisonment, which
was reduced to 235-240 months’ imprisonment based on the maximum term of
imprisonment authorized by statute.
At sentencing, Ward testified he had found on the laptop approximately 200
videos of child pornography totaling between 65 and 75 hours in length, as well as
204 images of child pornography. Later, Rowe testified as to the graphic and violent
content of three of the videos containing child pornography found on the laptop.
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Also at sentencing, the district court received a report from Morrison County
Social Services, dated March 16, 2012, concerning Worthey’s stepdaughter. In the
report, Worthey’s stepdaughter stated that Worthey “began sexually abusing her prior
to her third birthday up until November of 2010, at age 13, when he was arrested for
child pornography at that time.” The report also detailed Worthey’s stepdaughter’s
continuing post-abuse struggles, which included suicidal ideation. The district court
also received a report from the Craighead County Sheriff’s Department, dated July
3, 2011, of an attempted suicide by Worthey’s stepson. The district court then heard
testimony from Ward regarding the details of a conversation between Ward and
Chandra earlier that day, during which Chandra told him that Worthey’s stepdaughter
was living at “a girls’ home and a juvenile mental institution, under 24-hour
lockdown,” and that Worthey’s stepson “was being treated for anxiety disorder due
to sexual abuse.” The district court then admitted, over Worthey’s objection,
videotape statements by Worthey’s stepdaughter and stepson.
The district court found by a preponderance of the evidence that Worthey had
engaged in a pattern of sexual abuse of his minor stepchildren. The district court then
determined that Worthey had a base offense level of 22; that the five-level pattern-of-
sexual-abuse enhancement, the four-level depiction-of-violence enhancement, and
several other enhancements, applied; that Worthey had a total offense level of 38; and
that Worthey had a criminal history category of I. From this, the district court
calculated a Guidelines range of 235-293 months’ imprisonment, which became 235-
240 months’ imprisonment based on the applicable statutory maximum. The district
court credited Worthey with “some reservations” it had regarding the imposition of
the five-level pattern-of-sexual-abuse enhancement and sentenced him to 180 months’
imprisonment on the receipt count and to 120 months’ imprisonment on the
possession count, with the sentences to run concurrently.
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II. Discussion
A. Motion for a Change of Venue
Worthey argues that the district court erred in denying his motion for a change
of venue. “We review a denial of a motion for a change of venue for abuse of
discretion.” United States v. Stanko, 528 F.3d 581, 584 (8th Cir. 2008) (quoting
United States v. Allee, 299 F.3d 996, 999 (8th Cir. 2002)).
The Sixth Amendment to the United States Constitution “requires that a trial
be held in the state and district where the crime was committed.” Id. (quoting United
States v. Wipf, 397 F.3d 677, 686 (8th Cir. 2005)). “However, a defendant does not
have a right to be tried in a particular division.” Id. (quoting Wipf, 397 F.3d at 686).
Pursuant to Federal Rule of Criminal Procedure 18, the district court “must set the
place of trial within the district with due regard for the convenience of the defendant,
any victim, and the witnesses, and the prompt administration of justice.” “A district
judge has broad discretion in determining where within a district a trial will be held,
and to overturn the court’s decision the defendant must prove abuse of that discretion
or prejudice.” Stanko, 528 F.3d at 584 (quoting United States v. Davis, 785 F.2d 610,
616 (8th Cir. 1986)).
Worthey argues that the district court failed to afford sufficient weight to the
convenience of the witnesses, his family, and his friends. He argues that the
witnesses, his family, and his friends were forced to commute in excess of two hours
to attend his trial and that the government’s purported security concerns could have
been adequately addressed by additional security officers.
Worthey points to our decision in Stanko, in which we explained that “[w]hile
the district court retains considerable discretion in determining the place of trial, that
discretion is contingent upon the court’s consideration of the factors provided in Rule
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18 when ruling on a proper motion for change of venue.” 528 F.3d at 586. But
unlike Stanko, where there was “no evidence in the record that the district court
undertook any consideration of the convenience of the defendant or witnesses or the
prompt administration of justice[,]” id. at 585, here the record shows that the district
court considered the Rule 18 factors and determined that security concerns from
holding the trial in Jonesboro outweighed the inconvenience of holding the trial in
Little Rock. We conclude that the district court did not abuse its discretion in so
ruling. Moreover, Worthey has shown no prejudice arising therefrom. See United
States v. Anderson, 626 F.2d 1358, 1375 (8th Cir. 1980) (“Absent any prejudice to
the defense, the decision of the trial court cannot be considered an abuse of
discretion.”), cited in Stanko, 528 F.3d at 584.
B. Sufficiency of the Evidence
Worthey argues that the district court erred in denying his motions for
judgment of acquittal and motion for a new trial because the evidence was insufficient
to convict him. He argues that the government failed to prove (1) that he was the
person who accessed the Internet and downloaded the child pornography found on
the laptop; and (2) that the child pornography was saved in the laptop’s permanent
memory as opposed to temporary cache.
We review de novo the district court’s denial of the motion for judgment of
acquittal, but “review a challenge to the sufficiency of the evidence deferentially and
affirm if any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Vega, 676 F.3d 708, 721 (8th Cir.
2012) (quoting United States v. Augustine, 663 F.3d 367, 373 (8th Cir. 2011)). We
review the district court’s denial of the motion for a new trial for an abuse of
discretion. United States v. Maybee, 687 F.3d 1026, 1032 (8th Cir. 2012). “Although
the district court may weigh the evidence and disbelieve witnesses, the verdict must
be allowed to stand ‘[u]nless the district court ultimately determines that a
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miscarriage of justice will occur.’” Id. (alteration in original) (quoting United States
v. Campos, 306 F.3d 577, 579 (8th Cir. 2002)).
As already noted, Worthey was convicted of receiving and possessing child
pornography, in violation of 18 U.S.C. § 2252(a)(2) and (a)(4)(B). “The convictions
for receipt and possession of child pornography turn on essentially the same
requirements and evidence, and thus will be discussed together.” United States v.
White, 506 F.3d 635, 641 (8th Cir. 2007). “The elements of receipt under 18 U.S.C.
§ 2252(a)(2) require the defendant to knowingly receive an item of child
pornography, and the item to be transported in interstate or foreign commerce.” Id.“The elements of possession under 18 U.S.C. § 2252(a)(4)(B) require the defendant
to knowingly possess an item of child pornography, and the item to be transported in
interstate or foreign commerce by any means.” Id. We construe Worthey’s
challenges as disputing whether he was the one who downloaded the child
pornography and if so, whether he “received” or “possessed” the child pornography.
As recounted earlier, a forensic examination of the laptop revealed a user
account called “dman” with the password “Badone76,” several file-sharing programs
under the “dman” user account, an email address associated with the laptop of
“Dman76 something @gmail,” and a username for Arkansas State University online
that contained the name “Dustin Worthey.” In addition to the evidence obtained from
the laptop, the government also introduced Worthey’s inculpatory statements. We
conclude that the evidence found on the laptop, considered together with Worthey’s
statements, was sufficient to establish that Worthey was the person who downloaded
the child pornography found on the laptop in his residence.
We also agree with the district court that the evidence was sufficient to
establish that the files containing child pornography were knowingly downloaded and
saved in the laptop’s permanent memory. Unlike United States v. Stulock, 308 F.3d
922, 925 (8th Cir. 2002), in which we noted that the district court had acquitted the
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defendant on the charge of knowingly possessing child pornography because “[t]he
possession charge specified only the images found in the browser cache[,]” the
evidence adduced at Worthey’s trial established that the child pornography found on
the laptop was downloaded through peer-to-peer file-sharing programs onto the
laptop. Agent Ward explained that he found child pornography in files within the
FrostWire “incomplete” and “saved” folders on the laptop and that the files
containing the child pornography were searched for and downloaded by the user.
This testimony was consistent with Agent Estes’s testimony regarding the operation
of file-sharing programs such as FrostWire. See United States v. Koch, 625 F.3d 470,
478-79 (8th Cir. 2010) (holding that images “found on [the defendant’s] computer
and flash drive in files that a user had to create manually[,]” along with “evidence that
a number of the images had been moved and others deleted[,]” were “sufficient to
support the finding that [the defendant] knowingly possessed the images of child
pornography” (footnote omitted)). Accordingly, the district court did not err in
denying Worthey’s motions for judgment of acquittal and motion for a new trial.
C. Stipulation
Worthey argues that the district court erred in permitting the government to
play the video clips containing child pornography at trial despite his willingness to
stipulate that they contained child pornography. He argues (1) that in light of this
stipulation, the video clips should have been excluded under Old Chief v. United
States, 519 U.S. 172 (1997); (2) that the district court failed to conduct a Federal Rule
of Evidence 403 balancing test in deciding whether to admit the video clips or to
accept his stipulation as a substitute therefor; and (3) that the district court otherwise
erred in admitting the video clips. We review the district court’s evidentiary ruling
for an abuse of discretion. United States v. Sewell, 457 F.3d 841, 843 (8th Cir.
2006).
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We conclude first that Worthey’s Old Chief argument is foreclosed by United
States v. McCourt, 468 F.3d 1088, 1091-92 (8th Cir. 2006), in which we held that Old
Chief did not prohibit publication of child pornography video clips to the jury over
the defendant’s offer to stipulate to their content. See also Sewell, 457 F.3d at 844
(explaining that “the government is entitled to prove its case by evidence of its own
choice and is not required to accept the offer [to stipulate]”); United States v. Becht,
267 F.3d 767, 774 (8th Cir. 2001) (similar). To the extent that Worthey’s argument
constitutes a challenge to the validity or rationale of McCourt and our other
precedent, we necessarily must reject it, for “[i]t is a cardinal rule in our circuit that
one panel is bound by the decision of a prior panel.” United States v. Betcher, 534
F.3d 820, 823-24 (8th Cir. 2008) (quoting Owsley v. Luebbers, 281 F.3d 687, 690
(8th Cir. 2002)).
The record indicates that the district court conducted a Rule 403 analysis when
considering the admissibility of the video clips. Before trial, Worthey’s counsel
argued that the video clips should be excluded in accordance with his stipulation
because they would “bias and prejudice and inflame [the] jury against [Worthey].”
The government responded that it intended to play only select five-second video clips
and that it had chosen clips as “a representative sample of all of the child
pornography” without including “the worst” of the videos. Given the parties’ stated
positions, “[w]e presume that the district court weighed this evidence pursuant to
Rule 403” and concluded that the government should be permitted to play the video
clips. Smith v. Tenet Healthsystem SL, Inc., 436 F.3d 879, 885 (8th Cir. 2006), cited
in McCourt, 468 F.3d at 1092.
Moreover, we do not agree with Worthey that the video clips unfairly
prejudiced him. Our court considered and rejected a similar argument in McCourt:
The only argument that McCourt offers in support of his unfair
prejudice claim is that videos of child pornography, more so than still
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images, arouse emotions that a jury is unable to set aside in reaching its
verdict. While the videos were no doubt unfavorable to McCourt, “the
fact remains that [Rule 403] does not offer protection against evidence
that is merely prejudicial in the sense of being detrimental to a party’s
case. The rule protects against evidence that is unfairly prejudicial.”
United States v. Johnson, 463 F.3d 803, 809 (8th Cir. 2006) (internal
quotation omitted) (emphasis added). McCourt may be correct that
videos are qualitatively different from still images, but it is also true that
a video is nothing more than a series of still images shown in rapid
succession to create the illusion of motion. Only seven videos out of the
more than 175 found on McCourt’s computer were shown to the jury
and each for only three seconds. Because any illusion of motion created
by a mere three seconds of video is surely minimal, we see little
qualitative difference between the limited publication of these seven
videos and the publication of still images for longer durations, as upheld
in our prior cases. See Sewell, 457 F.3d at 844 (reversing exclusion of
more than 60 seconds of still images); Becht, 267 F.3d at 774(upholding 39 images displayed and hard copies distributed to jurors).
Moreover, unlike in Becht and Sewell, which dealt with the defendant’s
collection of still images, we see no reason here that the Government
must limit its evidence to still images because McCourt did not so limit
his collection.
Given the limited number of videos and their minimal duration,
we do not find that their publication to the jury constitutes unfair
prejudice.
McCourt, 468 F.3d at 1092-93. Here, the government published only select five-
second video clips to the jury as a representative sample of the less-than-worst videos.
Although it might have been a better course for the district court to have examined
the video clips for itself prior to determining their admissibility, see United States v.
Cunningham, 694 F.3d 372, 386-87 (3d Cir. 2012), under the circumstances of this
case we find no unfair prejudice in the publication of the video clips to the jury.
Accordingly, we need not consider or weigh the probative value of the video clips or
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the potential adequacy of Worthey’s stipulation as a substitution therefor. E.g.,
McCourt, 468 F.3d at 1093; Betcher, 534 F.3d at 825.
D. Sentence
Worthey argues that imposition of the five-level enhancement for engaging in
a pattern of sexual abuse of a minor violated his due process rights (1) because the
enhancement was not supported by clear and convincing evidence notwithstanding
the fact that the enhancement increased his potential sentence by up to 100 additional
months’ imprisonment, and (2) because the enhancement was based largely on the
videotape statements of his minor stepchildren.4 He also argues that his 180-month
sentence is unreasonable (1) because he presented evidence that he suffers from
Asperger’s Syndrome, and (2) because his sentence is greater than those of other
offenders convicted of similar yet more heinous conduct. We review de novo
Worthey’s due process argument, see United States v. Lee, 625 F.3d 1030, 1034 (8th
Cir. 2010), and review the substantive reasonableness of the sentence for an abuse of
discretion, see United States v. Spencer, 700 F.3d 317, 322 (8th Cir. 2012).
“We have rejected the assertion that ‘due process require[s] the government to
prove by clear and convincing evidence facts that produce[] so substantial an increase
in [a defendant’s] [G]uidelines range.’” United States v. Waller, 689 F.3d 947, 958
(8th Cir. 2012) (alterations in original) (quoting United States v. Villareal-Amarillas,
562 F.3d 892, 895 (8th Cir. 2009)); see also Lee, 625 F.3d at 1034-35 (explaining that
“we [have] decided squarely that due process never requires applying more than a
preponderance-of-the-evidence standard for finding sentencing facts, even where the
fact-finding has an extremely disproportionate impact on the defendant’s advisory
4
Worthey originally also challenged the imposition of the five-level
enhancement on the basis that he was facing charges in state court for the same
underlying conduct. In his reply brief, however, Worthey states that the state court
charges have since been nolle prossed, thereby rendering his argument moot.
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guidelines range” (internal quotation marks and citation omitted)). Accordingly,
Worthey’s argument that the district court was required to apply the clear-and-
convincing-evidence standard fails.
The record supports the district court’s findings regarding Worthey’s pattern
of sexually abusing his minor stepchildren. At sentencing, the government offered
videotape statements by Worthey’s stepchildren regarding their history of being
sexually abused by Worthey. The district court found the statements sufficiently
reliable to warrant their consideration. See United States v. Bastian, 603 F.3d 460,
466-67 (8th Cir. 2010) (no abuse of discretion in admitting three video interviews of
minor victims of sexual abuse found by the court to be sufficiently reliable). The
district court also considered two written reports concerning Worthey’s stepchildren
and the psychological harm they suffered from his sexual abuse, as well as Ward’s
testimony regarding his conversation earlier that day with Chandra, whose reports
regarding the children were consistent with the written reports and the videotape
statements. Based on this evidence, the district court did not err in applying the five-
level enhancement.
Nor did the district court abuse its discretion in sentencing Worthey to 180
months’ imprisonment, which represented a substantial downward variance below the
bottom of the 235-240 months Guidelines range. “[W]here a district court has
sentenced a defendant below the advisory guidelines range, it is nearly inconceivable
that the court abused its discretion in not varying downward still further.” Spencer,
700 F.3d at 322 (quoting United States v. Moore, 581 F.3d 681, 684 (8th Cir. 2009)
(per curiam)). Given the number of images and videos found on the laptop, the nature
of the images and videos, and the evidence regarding Worthey’s pattern of sexual
abuse, the district court did not abuse its discretion in refusing to vary even further
downward.
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III. Conclusion
The conviction and sentence are affirmed.
SHEPHERD, Circuit Judge, concurring.
I concur in this court’s decision affirming Worthey’s conviction and sentence
in all respects. I write separately, however, to comment on the denial of Worthey’s
motion that his trial be moved from Little Rock to Jonesboro, his home and the
location of the events giving rise to his prosecution, and to affirm that “it is the public
policy of this Country that one must not arbitrarily be sent, without his consent, into
a strange locality to defend himself against the powerful prosecutorial resources of
the Government.” See United States v. Stanko, 528 F.3d 581, 586 (8th Cir. 2008)
(internal quotation marks omitted).
While I agree that Worthey’s case is distinguishable from Stanko and that the
district court did not abuse its discretion in denying a change of venue in this case,
I find suspect the government’s5 reliance in resisting Worthey’s motion on the
possibility that, due to the absence of secured hallways in the Jonesboro courthouse,
the jury would view Worthey in custody, implying that trial in the more state-of-the-
art Little Rock courthouse would not present this risk.
First, it is not clear from the record that a juror would never see a defendant in
custody when tried in the Little Rock courthouse. Second, it is not a given that
prejudice to a defendant results from a juror seeing the defendant in custody before
or during a criminal trial. See United States v. Robinson, 645 F.2d 616, 617 (8th Cir.
5
It is difficult to discern from the district court’s September 7, 2011 order or
September 21, 2011 order whether it relied on the government’s explanation that the
jury would view Worthey in custody as a grounds for denying the motion to transfer.
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1981) (per curiam) (holding “brief and inadvertent exposure of defendants to jurors
is not inherently prejudicial” and that defendant bears burden of “affirmatively
demonstrating prejudice”). Further, the standard jury instructions—cautioning that
the defendant is presumed innocent unless and until proven guilty beyond a
reasonable doubt, and that an indictment is simply an accusation—minimize the
potential prejudice arising from such an observation. See Eighth Circuit Manual of
Model Jury Instructions: Criminal §§ 1.01, 3.05, 3.06 (2011). Third, if as here, the
defendant is willing to risk being seen by the jury while in custody, then in my view,
the court should not consider such a possibility as a factor supporting the denial of
a requested change of venue or in conducting its Rule 18 analysis.
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