United States v. Jeremy Kelley , 861 F.3d 790 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 16-2696
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Jeremy Kelley
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Western District of Arkansas - Fayetteville
____________
Submitted: February 10, 2017
Filed: June 30, 2017
____________
Before SMITH,1 GRUENDER, and BENTON, Circuit Judges.
____________
SMITH, Circuit Judge.
Jeremy Kelley was convicted of one count of receiving child pornography in
violation of 18 U.S.C. § 2252A(a)(2) and (b)(1), three counts of receiving child
pornography in violation of 18 U.S.C. § 2252(a)(2) and (b)(1), and one count of
1
The Honorable Lavenski R. Smith became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on March 11, 2017.
possessing child pornography involving a minor under 12 years old in violation of 18
U.S.C. § 2252A(a)(5)(B) and (b)(2). The district court2 sentenced Kelley to five
concurrent 124-month sentences. The court also imposed a $2,000 fine and a $5,000
special assessment pursuant to the Justice For Victims of Trafficking Act of 2015.
Kelley appeals his conviction, arguing that the district court erred in denying his
motion for acquittal, admitting testimony regarding his use of adult pornography, and
imposing the $5,000 special assessment. Finding no error, we affirm.
I. Background
In May 2015, the Internet Crimes Against Children Task Force—a coordinated
effort of federal, state, and local law enforcement—identified an Internet
Protocol (IP) address in Northwest Arkansas that was used to download videos
known to contain child pornography as previously catalogued by the National Center
for Missing and Exploited Children. Using investigative software, law enforcement
determined that approximately 59 files of known child pornography were downloaded
from this IP address using the Ares peer-to-peer file-sharing network between
January 7th and May 5th of 2015. Investigators traced the IP address to a Cox
Communications account connected to a residence owned by Jeremy Kelley and his
wife in Prairie Grove, Arkansas.
On June 25, 2015, investigators executed a search warrant on the residence
connected to the internet account. Kelley and his wife were home when the search
began. Special Agent Gerald Faulkner of Homeland Security Investigations
interviewed Kelley, who confirmed that his family had internet service through Cox
Communications and that the service was secured by a password. Kelley admitted that
he was the primary user of a Toshiba laptop found in the living room and that his wife
and other family members all used their own computing devices. Although Kelley and
2
The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.
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his wife were the home’s only full-time residents, Kelley’s children from other
marriages would occasionally visit. Kelley admitted to having a paid membership to
the Ares peer-to-peer network. He claimed that he had not used the Ares program to
download pornography in years and that he only downloaded adult pornography.
Agent Faulkner testified that Kelley admitted viewing adult pornography, stating:
I asked Mr. Kelley in the past what type of pornography, and he relayed
that it was adult pornography, or what he called role-playing
pornography, where adult females are made to look like underage
teenage girls.
***
I asked Mr. Kelley when he did use[] to look up child pornography
through Ares, what search terms, [and] he said that he would use “office
sex,” “lesbian,” “young teen,” “teen,” and “Vicky Vette.”[3]
***
I informed him that the downloads of known child pornography videos
in question were approximately between January 7th through May 5th
of 2015, at which time Mr. Kelley recanted his initial statement and said
that he had, in fact, downloaded adult pornography during that
timeframe through Ares.
***
I asked Mr. Kelley if any of those videos contained child pornography
or depicted children of questionable ages. He said that some of them
looked very young. One video in particular that he described, that based
on the camera angle from the video and the underdevelop[ed] chest area
of the child, it was hard to determine whether it was a boy or a girl.
3
Vicky Vette is an adult pornography performer.
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Agent Faulkner also testified that Kelley recognized some of the titles of the
files that the Task Force had identified as downloaded under Kelley’s IP address:
“Mr. Kelley advised that some of the titles in the downloads did look familiar, and he
acknowledged the use of the term ‘Vicky’ in the titles.” According to Agent Faulkner,
a search for “Vicky,” instead of “Vicky Vette,” often returns child pornography
depicting “an actual real girl [named Vicky] that has been rescued and identified by
law enforcement, and her series of videos that had been transferred all over the world
are now a known recognition to the National Center For Missing and Exploited
Children.”
Before leaving Kelley’s home, law enforcement confiscated the computing
devices found there, including the Toshiba laptop primarily used by Kelley. The
computer had three user profiles, enabling access by Kelley, his wife, and his son.
Detective Andy Higdon of the Fayetteville Police Department completed a forensic
analysis of the Ares program on Kelley’s laptop. He testified that Kelley’s password-
protected profile had run searches for files using the terms “8-yr-old,” “daughter
incest,” “daughter lover,” “kidnapped girl,” “playtime niece,” “sex uncle,” and
“pedo.” He also testified that someone had searched for “Vicky” but not “Vette”
using the program. Detective Higdon described how the Ares search feature worked:
“when you’re searching through the Ares program[,] for instance, the search keyword
‘daughter incest,’ that can be any part of the file. . . . If ‘daughter’ is a part of that
filename, it’s going to pull that. If ‘incest’ is a part of that filename, it’s going to pull
that.” As an example, Detective Higdon described one of the video files found on
Kelley’s computer called “8-year niece learns sex with uncle,” which could have been
discovered through the search feature using several of the identified search terms
including “8-yr-old,” “sex uncle,” and “playtime niece.”
Detective Travis Monson of the Springdale Police Department also completed
a forensic examination of Kelley’s laptop. At trial, Detective Monson testified to
finding more than an hour of video footage spread across 15 different video files
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containing child pornography. All the child pornography files were found on Kelley’s
password-protected profile, using the Ares account paid for by Kelley. Detective
Monson identified the four files at issue in Kelley’s indictment: three appeared to
have been downloaded on May 5th between 1:17 p.m. and 2:07 p.m., and one was
downloaded on May 1st. Detective Monson testified that download dates could be
manipulated by adjusting the computer clock. He also noted the possibility of a batch
download in which a user initiates the download of multiple files, and each file
receives a timestamp at the time of its completion—thus, a person could start a large
download in the morning, and each file would receive a timestamp at some point later
in the day when the respective downloads are completed. Detective Monson also
testified that a number of videos were in Kelley’s “Recent Folder,” meaning that the
files had been accessed recently. The laptop also had installed a utility program called
CCleaner. Among other things, this program is commonly used to remove
pornography from computers. Kelley stipulated that all 15 videos contained images
of child pornography involving minors under the age of 12. At the close of the
government’s case, Kelley moved for a judgment of acquittal, which the court denied.
Kelley largely defended against the charges by claiming an alibi. He asserted
that on May 5, 2015, the day in which three of the video files were downloaded onto
his computer, he was in Fort Smith, which is about 60 miles away from his home in
Prairie Grove. He presented a single alibi witness, Heather Mann, who was a
paramour of Kelley’s. Mann testified to eating lunch in Fort Smith with Kelley on
May 5, 2015, at a restaurant called China Jade. She estimated that she arrived at lunch
around noon and was back at work by 1:15 p.m. She remembered distinctly that it was
raining. Under cross-examination, Mann acknowledged conversing with Kelley about
that rendevous as happening on a Wednesday.
Q. Now, do you remember further in that conversation . . . Jeremy
Kelley said, “I can remember what I was wearing. I knew exactly
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that it was either May 5th or May 6th. I looked at my calendar and
it was a Wednesday”?
Do you remember him telling you that?
A. Yes.
Q. And he knows for sure it was a Wednesday because he was going
to go down on Monday and he wasn’t able to do so. So he went
down two days later on a Wednesday. And then he went back on
that Friday. So he remembers it was a Wednesday.
So Wednesday, May 5th?
A. Yes, sir.
The prosecution then informed Mann that May 5, 2015, was actually a
Tuesday. Later, meteorologist Dan Skoff testified that according to historical weather
data, Tuesday, May 5, 2015, was “completely clear” of precipitation, but that it rained
for most of the day on Wednesday, May 6, 2015.
Kelley also testified about his activities on May 5, 2015. He claimed to have
left his house around 8:45 a.m. to make sales calls in Fort Smith. He ate lunch with
Mann and then visited a friend. He claimed to have returned home around 3:30 p.m.
He also claimed that it was raining that day. He presented no further testimony,
although claiming to meet with at least three other people. He produced no receipt
from the restaurant, no credit card statement, no telephone or text message records,
nor any documentation to verify that any of the meetings in Ft. Smith occurred on
May 5th.
Regarding the files on his computer, Kelley admitted to seeing an image “of a
person from the shoulder about midthigh from the side that had an arm that was
raised,” but he claimed that it occurred “[a]t least seven years passed.” He also
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admitted to using the search terms “office sex,” “young teen,” “lesbian,” and “Vicky
Vette,” but that such searches occurred “many years ago.” But later he admitted to
“lying to [his wife] about [porn] and covering up the porn addiction” during the
relevant time period. Although the 15 files of child pornography were discovered in
his “My Shared Folder” and many of the files were also in the “Recent Folder,”
Kelley testified that he never noticed them on his computer.
Asserting his innocence, Kelley claimed that his children or his wife must have
downloaded the child pornography.
Q. Well, sir, I guess I’m a bit confused where you’re going with your
testimony. Is it your testimony that someone else in your house
was downloading this child porn, either your wife or your kids?
A. I don’t know who it was.
***
Q. So your wife, your wife could have went on your profile, used
your Ares account to download this child pornography in your
name; is that correct?
A. That’s correct. It’s possible.
Q. Your kids, you’re saying, could have went on their father’s
computer, under their father’s name, and downloaded child
pornography; is that right?
Yes or no, sir. Are they using that computer?
A. They are using the computer, yes.
-7-
Kelley presented no evidence that his wife, who works full-time in a separate city, or
his children, who normally only visit on weekends, were at the Prairie Grove
residence during the relevant time period, mid-day in the middle of the week.
After hearing all the evidence, a unanimous jury convicted Kelley on five
counts: one count of possessing child pornography found on his laptop and four
counts of receiving child pornography—one count for a file downloaded on May 1st
and three counts for files downloaded on May 5th. At sentencing, the district court
imposed five 124-month sentences to run concurrently. In evaluating the imposition
of the $5,000 special assessment pursuant to the Justice for Victims of Trafficking
Act of 2015, the court noted that although Kelley qualified for appointed counsel, the
concerns of adequate representation are different than those regarding the application
of a limited assessment. Kelley’s presentence investigation report (PSR) provided him
a slightly negative net worth with assets consisting mainly of the family’s two
vehicles (valued at $16,677) and liabilities consisting mainly of his wife’s student
loan debt (approximately $15,000) and a credit card (estimated at $1,700). These
numbers did not include any information regarding the value of the family home.
Before sentencing, the Kelleys sold their residence, but neither Kelley nor his wife
provided the court with any details about the sale. The PSR estimated the value of the
residence at $98,000. When asked about his house under oath, Kelley claimed no
knowledge of its value, the equity in the mortgage, or its selling price. The court
determined that Kelley’s explanation of his indigence lacked credibility and imposed
the special assessment. Kelley now appeals, challenging his conviction and the
imposition of the special assessment.
II. Discussion
Kelley argues that the district court erred in (1) denying his motion for
acquittal; (2) admitting testimony regarding his use of adult pornography; and
(3) imposing the special assessment according to the Justice for Victims of
Trafficking Act of 2015. We disagree and affirm.
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A. Motion for Acquittal
“In reviewing the denial of a motion for a judgment of acquittal, we review the
sufficiency of the evidence de novo, evaluating the evidence in the light most
favorable to the verdict and drawing all reasonable inferences in its favor.” United
States v. Wright, 739 F.3d 1160, 1167 (8th Cir. 2014). “[I]t is not necessary for the
evidence before the jury to rule out every reasonable hypothesis of innocence. It is
enough if the entire body of evidence be sufficient to convince the fact-finder beyond
a reasonable doubt of the defendant’s guilt.” Id. (quoting United States v. Surratt, 172
F.3d 559, 564 (8th Cir. 1999)). “If the evidence rationally supports two conflicting
hypotheses, the reviewing court will not disturb the conviction.” United States v.
Fang, 844 F.3d 775, 778 (8th Cir. 2016) (quoting United States v. Serrano–Lopez,
366 F.3d 628, 634 (8th Cir. 2004)). “This is a very strict standard of review.” Id.(quoting United States v. Thunder, 745 F.3d 870, 875 (8th Cir. 2014)) (internal
quotation marks omitted).
To convict Kelley, the government had to prove beyond a reasonable doubt that
Kelley “knowingly” received or possessed child pornography. See 18 U.S.C.
§§ 2252(a)(2), 2252A(a)(2), 2252A(a)(5)(B). Kelley contends that the government
failed to sufficiently prove that he knowingly received or possessed the files
containing child pornography, knew that such files contained child pornography, or
knew that the minors depicted were under 12 years old. “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. Worthey, 716 F.3d
1107, 1113 (8th Cir. 2013) (quoting United States v. White, 506 F.3d 635, 641 (8th
Cir. 2007)). “We construe [defendant’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.” Id.Kelley stipulated “that all 15 videos are, in fact, child porn, fit the definition
[in the statute], some including minors under the age of 12.” This stipulation is
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conclusive. Gander v. Livoti, 250 F.3d 606, 609 (8th Cir. 2001). Further, Detective
Monson examined the list of files on Kelley’s computer and testified that the file title
of each video accurately described its contents. For example,
Q. So when we read “little boy 10-year-old playing with man
pthc,”[4] “little boy 10-year-old playing with man,” it’s a
10-year-old boy playing sexually with a man?
A. Yes, sir.
The jury could reasonably infer that any person aware of the existence of the video
files on the computer would also be aware of their contents due to the files’ sexually
explicit titles. The jury could rationally conclude that one who knowingly possessed
files with such descriptive titles knowingly acquired possession of child pornography
according to the relevant statutory definitions.
Despite acknowledging the nature of the files on his computer, Kelley argues
that the illegal files may have been downloaded without his knowledge. He notes that
the Ares program automatically created folders containing the contraband upon
download, and someone else could have initiated the relevant downloads. Thus, the
simple existence of the child pornography on his password-protected profile does not
necessarily prove that he had knowledge of its existence. This assertion, while true,
misconstrues the evidence. Kelley was convicted of receiving four files downloaded
on May 1 and May 5, 2015. His computer was confiscated on June 25, 2015. These
explicitly titled video files were discovered in the “My Shared Folder” and in the
“Recent Folder.” The jury could have reasonably inferred that Kelley, having primary
control of his computer during the relevant time, would be aware of these files in
these general folders. A cursory browse of either folder would uncover the offensive
videos with little effort. In Worthey, we reviewed a similar peer-to-peer file-sharing
4
The abbreviation “pthc” stands for “preteen hardcore.”
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program and determined that files depicting child pornography, even in the folders
automatically created by the program, indicated that such “files containing the child
pornography were searched for and downloaded [in the file-sharing program] by the
user.” 716 F.3d at 1113. The Ares program automatically created the “My Shared
Folder,” but a user had to affirmatively download the illegal files for them to be in the
folder in the first place. The presence of these files in these folders on a computer
with a user profile under Kelley’s control sufficiently shows an affirmative step to
obtain the files and knowledge of the effort’s success.
Relatedly, Kelley argues that because other people had access to his computer,
the government failed to prove that he was the person who received or possessed the
child pornography. In United States v. Acosta, we rejected this same argument
because other evidence in the record pointed to the defendant’s constructive
possession. 619 F.3d 956, 961 (8th Cir. 2010). The child pornography was
downloaded to Kelley’s password-protected profile, on a computer primarily used by
him, and using a program paid for by Kelley—we find this evidence provides a
sufficient basis for the jury to infer Kelley’s knowledge. See United States v. Grauer,
701 F.3d 318, 324 (8th Cir. 2012) (finding a home-office laptop that no one else used
regularly sufficient to establish constructive possession of child pornography). Kelley
suggested that it was possible that someone else downloaded the files. But Kelley
presented no evidence that any other person had access to his personal computer on
May 1, 2015, or in the early afternoon on May 5, 2015. Although Kelley and his alibi
witness testified that he was not home during the time of the three illicit downloads,
the jury rejected the theory that another person was responsible. Morever, Kelley
admitted at trial to seeing an image that “didn’t appear to be a full-grown adult.” He
claimed that he viewed the image seven years prior and that he immediately deleted
the file, yet Detective Monson testified to finding a similar image still saved on
Kelley’s computer. Agent Faulkner testified that Kelley told him that he viewed this
image during the relevant time period. This testimony provides a basis for the jury to
infer that Kelley knowingly downloaded the video containing the image during the
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relevant time and knowingly retained it on his computer. “We will not overturn a jury
verdict if the jury picks one of two plausible scenarios presented by testimonial
evidence.” Fang, 844 F.3d at 779.
Sufficient evidence supports the jury’s verdict of guilt beyond a reasonable
doubt.
B. Prejudicial Testimony
“We usually review challenges to the district court’s evidentiary rulings for an
abuse of discretion, reversing only if an error was not harmless. If the admission of
a contested piece of evidence was not timely objected to at trial, however, we review
for plain error.” United States v. White Bull, 646 F.3d 1082, 1091 (8th Cir. 2011)
(citation omitted). “To prevail under plain error review, a defendant must demonstrate
an error that was plain, affected defendant’s substantial rights, and seriously affected
the fairness, integrity, or public reputation of judicial proceedings.” United States v.
Espinoza, 684 F.3d 766, 778 (8th Cir. 2012).
Kelley argues that Agent Faulkner’s statements regarding Kelley’s use of adult
pornography were unfairly prejudicial and in violation of Federal Rule of Evidence
403. Kelley did not object to this testimony at trial, so we review its admission for
plain error. “Unfair prejudice under Rule 403 means an undue tendency to suggest
decision on an improper basis, commonly, though not necessarily, an emotional one.”
United States v. Condon, 720 F.3d 748, 755 (8th Cir. 2013) (quoting Fireman’s Fund
Ins. Co. v. Thien, 63 F.3d 754, 758 (8th Cir. 1995)). Kelley argues that this testimony
was unduly prejudicial because “it implied a propensity to view any pornography,”
and that its prejudicial effect outweighed its probative value. Agent Faulkner’s
statements did not unfairly prejudice Kelley.
We accord “particularly great deference” to the district court in Rule 403
determinations because the circumstances of such evidentiary rulings require
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balancing in the context of the courtroom. United States v. Jean–Guerrier, 666 F.3d
1087, 1093 (8th Cir. 2012). Agent Faulkner’s testimony related four basic facts:
(1) Kelley admitted to looking at adult role-playing pornography in the past;
(2) Kelley used certain search terms in looking for pornography, including “young
teen” and “Vicky Vette” on Ares; (3) Kelley admitted to downloading adult
pornography in the relevant time period; and (4) Kelley admitted to downloading an
image that depicted a person with underdeveloped features. These factual assertions
connected Kelley to the computer containing the illicit material during the relevant
time period and connected Kelley to using Ares to download pornography. Moreover,
none of these facts are unnecessarily inflammatory or offensive to the point of
“encourag[ing] the jury to find guilt from improper reasoning.” Condon, 720 F.3d at
755 (quoting United States v. Muhlenbruch, 634 F.3d 987, 1001 (8th Cir. 2011)).
Kelley relies mainly on two cases to support his prejudice argument: United
States v. Harvey, 991 F.2d 981 (2d Cir. 1993), and United States v. LaChapelle, 969
F.2d 632 (8th Cir. 1992). Both are distinguishable. In Harvey, the Second Circuit
ordered a new trial for the defendant in a child pornography case, in part because the
prosecution presented “descriptions of the contents of the adult X-rated videotapes,
beyond those that involved either child pornography or simulated child pornography.”
991 F.2d at 996. These descriptions included disturbing content relating to
sadomasochism and sexual activity involving human excrement. Id. Importantly, the
prosecution in Harvey provided extensive descriptions of adult role-playing
pornography and descriptions of images of underdeveloped minors, but the inclusion
of this evidence did not contravene Rule 403. See id. (finding “simulated child
pornography” appropriate evidence). Kelley argues that the mere mention of his use
of role-playing pornography by itself is unfairly prejudicial, but Harvey implies the
reverse. Similarly, in LaChapelle, the government introduced a video of child
pornography possessed by the defendant. 969 F.2d at 638. The defendant acquired the
material 30 years prior to trial. See id. at 634. We held that admitting the video
violated Rule 403, but that the error was harmless. Id. at 638. Unlike Harvey or
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LaChapelle, the government in this case did not seek to admit explicit video footage
into evidence, nor did witnesses describe the contents of the video files with shocking
or offensive detail. Agent Faulkner’s testimony was relevant to the crimes charged,
non-explicit, and did not unfairly prejudice Kelley. We find no error, let alone plain
error.
C. Special Assessment
At sentencing, the district court imposed a special assessment pursuant to the
Justice for Victims of Trafficking Act of 2015, 18 U.S.C. § 3014. The statute requires
that “the court shall assess an amount of $5,000 on any non-indigent person”
convicted of specified offenses relating to human trafficking and sexual exploitation.
Id. § 3014(a). Money from the assessment is to be sent to the Domestic Trafficking
Victims’ Fund. Id. § 3014(c)–(d). The statute uses the phrase “shall assess,” which
mirrors the “shall assess” language of 18 U.S.C. § 3013—a statute that requires a
non-discretionary special assessment for the Crime Victims Fund. See United States
v. Dobbins, 807 F.2d 130, 131–32 (8th Cir. 1986). Both statutes mandate that the
district court assess money against defendants for the benefit of victims, and funds
are to be collected “in the manner that fines are collected in criminal cases.” 18
U.S.C. §§ 3013(b) & 3014(f). Unlike § 3013, in which the court cannot consider the
defendant’s ability to pay, § 3014 expressly limits its special assessment to “non-
indigent” persons. See id. § 3014(a). Section 3014 is silent, however, on how courts
should determine a defendant’s indigent status.
The United States Senate unanimously passed § 3014 as a sweeping effort to
provide services for victims of human trafficking and juvenile sexual abuse. See 161
Cong. Rec. S2337–38 (daily ed. Apr. 22, 2015). “We are throwing a lifeline to these
victims of human trafficking by providing them real resources to help them—to help
first to rescue them and then to help them heal.” Id. at S2337 (statement of Sen.
Cornyn). Through § 3014, Congress created the Domestic Trafficking Victims’ Fund
to “award grants or enhance victims’ programming” under the Trafficking Victims
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Protection Reauthorization Act of 2005, the Trafficking Victims Protections Act of
2000, the Victims of Child Abuse Act of 1990, and the PROTECT Our Children Act
of 2008. 18 U.S.C. § 3014(e).
This legislation also allows Federal judges to impose not only prison for
these criminals, but may order that fees go into a fund. That fund can be
used for victims’ services and even training for peace officers.
161 Cong. Rec. H3278 (daily ed. May 18, 2015) (statement of Rep. Poe). The bill
passed by an overwhelming majority in the House of Representatives, and was signed
into law by the president.
Kelley contends that the district court erred by imposing the special assessment
in his case. He argues that because he met the indigence requirement for court-
appointed counsel, he does not meet the requirement of “non-indigent” under § 3014.
Because the statutory language does not provide clear guidance on how to determine
indigence under § 3014, we look to analogous areas of the law for direction.
Kelley argues that we should treat § 3014 indigence determinations as we do
in forma pauperis (IFP) determinations under 28 U.S.C. § 1915.5 See United States
v. Fincher, 538 F.3d 868, 878 (8th Cir. 2008) (“IFP status on appeal is dependent
upon [defendant’s] eligibility for court appointed counsel at the trial level.”). As the
district court noted, however, there is a fundamental difference between a court’s
judgment in appointing an attorney to represent an indigent client and assessing a fee
after trial:
5
During oral argument, Kelley conceded that he bore the burden of proving
indigence under 18 U.S.C. § 3014. Cf. United States v. Anderson, 567 F.2d 839, 840
(8th Cir. 1977) (recognizing the defendant bears the burden of indigence for the
appointment of counsel).
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The Court finds that for purposes of this statute that the defendant
is not indigent. Now, obviously he qualified for appointment of counsel,
but the concerns are not the same because to retain an attorney to try a
case to defend a person in a case prosecuted by the United States
government, it is likely that an attorney would charge well in excess of
$5,000 and that the cap on this particular assessment is limited to
$5,000, which this Court finds that the defendant, while in the
presentence report it indicates that he has a negative net worth, the Court
finds that he certainly has the education and skills to be employed and
to earn money from which he could pay this assessment.
The constitutional right to a fair trial is implicated in the appointment of counsel for
indigent defendants. Martinez v. Ryan, 566 U.S. 1, 12 (2012) (“Defense counsel tests
the prosecution’s case to ensure that the proceedings serve the function of
adjudicating guilt or innocence, while protecting the rights of the person charged.”).
In granting court-appointed counsel, the court assesses a defendant’s immediate
ability to pay because “any person haled into court, who is too poor to hire a lawyer,
cannot be assured a fair trial unless counsel is provided for him.” Id. (quoting Gideon
v. Wainwright, 372 U.S. 335, 344 (1963)). “The Criminal Justice Act provides a
framework for ensuring that individuals who are financially unable to afford defense
counsel are provided counsel as required by the Sixth Amendment.” Fincher, 538
F.3d at 875; see also 18 U.S.C. § 3006A. Fines or fees imposed after trial cannot
infringe upon this fair-trial right. Cf. United States v. Owen, 854 F.3d 536, 541 (8th
Cir. 2017) (saying the Sixth Amendment does not apply in revocation proceedings
because “[t]he same constitutional interests are not at stake”). Further, post-trial fines
and fees trigger additional protections: A defendant cannot be punished with
imprisonment for his failure to pay, and he can assert his indigence at future
enforcement proceedings. See United States v. Bartsh, 985 F.2d 930, 933–34 (8th
Cir.), adhered to in part on reh’g, 7 F.3d 114 (8th Cir. 1993). Even the IFP statute
allows the court to assign trial-related costs to the defendant after judgment. See 28
U.S.C. § 1915(f).
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Because the special assessment under § 3014 deals with sentencing-phase
considerations, the indigence analyses of similar post-conviction assessments are
more helpful than the analysis used for determining IFP status or appointed counsel.
For fines under the Sentencing Guidelines, for example, the district court “shall”
impose a fine unless the defendant can prove his indigence. U.S.S.G. § 5E1.2. The
defendant bears the burden of proving both his inability to pay at the time of
sentencing and that he is “not likely to become able to pay a fine upon his release
from his term of imprisonment.” United States v. Herron, 539 F.3d 881, 888 (8th Cir.
2008). For restitution orders under the Victim and Witness Protection Act of 1982,
we have encouraged courts to “make ‘specific findings of fact about the defendant’s
financial resources, financial needs and earning ability’” and to use those findings for
determining restitution amounts. Means v. United States, 961 F.2d 120, 121 (8th Cir.
1992) (quoting United States v. Owens, 901 F.2d 1457, 1459 (8th Cir. 1990)).
Because “standards have been developed by the Department of Justice indicating
enforcement proceedings should not be instituted unless the person has the means of
supporting himself,” id., special assessments under § 3014 logically allow for the
district court to consider future earnings because of the safeguards included in the
ordinary way criminal fines are collected. See 18 U.S.C. § 3014(f). Using these
statutory schemes as guideposts, we think that in the context of § 3014 indigence
determinations, an analysis of both a defendant’s current financial situation and his
ability to pay in the future is appropriate in determining his “non-indigent” status. See
United States v. Strange, No. 16-10128, 2017 WL 2199005, at *2 (9th Cir. May 18,
2017) (analyzing defendant’s ability to work in imposing the special assessment).
Additionally, the mandatory language of § 3014 excludes discretionary
decisions by the court once non-indigence has been determined. Cf. Rutledge v.
United States, 517 U.S. 292, 301 (1996) (“We begin by noting that 18 U.S.C. § 3013requires a federal district court to impose a $50 special assessment for every
conviction . . . .”). We ordinarily review the district court’s fact-finding at sentencing
for clear error. See, e.g., United States v. Aden, 830 F.3d 812, 816 (8th Cir. 2016)
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(noting restitution awards under the Mandatory Victims Restitution Act of 1996 are
reviewed for “clear error”); United States v. Allmon, 500 F.3d 800, 807 (8th Cir.
2007) (“A district court’s imposition of a [Guidelines] fine and the determination of
the amount of the fine will not be reversed unless clearly erroneous.” (quoting United
States v. Berndt, 86 F.3d 803, 808 (8th Cir.1996))). The indigence determination
under § 3014 is a fact issue, and as in analogous contexts, we will review the district
court’s fact-finding for clear error. See Strange, 2017 WL 2199005, at *2. In this
case, the district court’s fact finding relied largely on its determination of Kelley’s
credibility. Cf. United States v. Marshall, 411 F.3d 891, 895 (8th Cir. 2005). “It is
well established that in sentencing matters a district court’s assessment of witness
credibility is quintessentially a judgment call and virtually unassailable on appeal.”
Id. (quoting United States v. Quintana, 340 F.3d 700, 702 (8th Cir. 2003)).
Kelley’s PSR gave him a slightly negative net worth at the time of sentencing.
The court evaluated this financial assessment and noted that it lacked any information
regarding the sale of Kelley’s residence (valued at approximately $98,000). The court
questioned Kelley about the profit made from the residence’s sale, but Kelley claimed
that he had no information about the value of the house, its selling price, or his equity
in its mortgage: “Mr. Kelley has claimed that he does not know any of that when I
questioned him here today[,] . . . but the Court finds that explanation to be lacking in
credibility.” From this, the court determined that Kelley was “not indigent.” Further,
the court determined that even taking Kelley’s negative net worth at face value,
Kelley, an Eagle Scout with a college degree, “certainly has the education and skills
to be employed and to earn money from which he could pay this assessment.” This
ability to earn money in the future precluded a finding of indigence for purposes of
§ 3014. Looking at all the factors of Kelley’s financial situation, the district court
determined that Kelley would, at some point, be able to pay the special assessment.
In making this determination, the court did not clearly err.
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III. Conclusion
For the foregoing reasons, we affirm the judgment of the district court.
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