United States v. Jerris Blanks ( 2021 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 19-2042
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Jerris M. Blanks
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
____________
Submitted: December 17, 2020
Filed: February 1, 2021
____________
Before SMITH, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.
____________
WOLLMAN, Circuit Judge.
Jerris Blanks was convicted of three counts related to the receipt and
possession of child pornography in violation of 18 U.S.C. § 2252A(a)(2), (a)(5)(B),
(b)(1), and (b)(2) and was sentenced to 130 months’ imprisonment. Blanks argues
that the district court1 abused its discretion in denying him leave to re-file pretrial
motions and in admitting certain evidence. We affirm.
I. Background
Law enforcement officers found more than 1,000 images of child pornography
and child erotica and fourteen videos of child pornography on Blanks’s devices and
online accounts. The internet search history on Blanks’s cellphone indicated that he
had also accessed online images of child pornography and child erotica. Upon being
charged, Blanks moved to dismiss the indictment. He also moved to suppress
evidence seized from his online accounts and obtained pursuant to a search warrant.
Blanks and the Government reached a pre-ruling non-binding plea agreement,
which required that Blanks withdraw all previously filed motions and waive his right
to file any further pretrial motions. During a hearing before a magistrate judge,2
Blanks confirmed that he wished to withdraw his motions and waive his right to file
further motions. After rejecting the plea agreement, the district court, as set forth
above, denied Blanks’s motion to re-file pretrial motions.
Blanks stipulated at trial that the seized images contained child pornography
and moved that the images not be shown to the jury because they were not probative
and were also unfairly prejudicial. The government responded that it intended to
show the jury only forty-two images. The court denied Blanks’s motion to exclude
the evidence, concluding that this percentage of images was less than that normally
1
The Honorable E. Richard Webber, United States District Judge for the
Eastern District of Missouri.
2
The Honorable Nannette A. Baker, United States Magistrate Judge for the
Eastern District of Missouri.
-2-
shown in child pornography trials. Forty-two images were shown to the jury, but no
videos were presented.
II. Discussion
We review for abuse of discretion the district court’s denial of leave to file
untimely pretrial motions, as well as its evidentiary rulings. United States v.
Trancheff, 633 F.3d 696, 697–98 (8th Cir. 2011).
A. Pretrial Motions
Blanks first argues that the district court abused its discretion when it denied
him leave to re-file his pretrial motions after rejecting his plea agreement. It is
undisputed that the deadline for pretrial motions had already passed when Blanks
withdrew his pretrial motions and waived his right to file further motions.
Federal Rule of Criminal Procedure 12(c)(1) permits the court to “set a
deadline for the parties to make pretrial motions.” The court may extend or reset
filing deadlines, but will not consider an untimely motion unless the party shows
good cause for the delay. Id. 12(c)(2), (c)(3). Good cause “requires a showing of
cause and prejudice.” United States v. Fry, 792 F.3d 884, 888 (8th Cir. 2015).
We conclude that the district court did not abuse its discretion in denying
Blanks’s motion for leave to file post-deadline pretrial motions in light of his
knowing and voluntary waiver of his right to do so. See United States v. Bloate, 534
F.3d 893, 901 (8th Cir. 2008) (concluding that a party cannot show good cause exists
when he knowingly and voluntarily waived his right to file), rev’d in part on other
grounds, 559 U.S. 196 (2010). The magistrate judge expressly asked Blanks at the
motions hearing, “And do you understand that if I accept your withdrawal of motions
and waiver of motions that you will not have another opportunity to bring up pretrial
-3-
motions in this case?” See id. at 900 (describing the magistrate judge as having
“expressly explained the nature and consequences of a waiver in detail”). Blanks
responded, “I wasn’t quite sure about that because . . . if the next judge was to for
some reason deny our [plea] agreement, then where would that put us?” The
following dialogue ensued:
THE COURT: Well, if you waive your right to have pretrial motions and
I accept your waiver of pretrial motions, your case will be going before
a district judge for a change of plea or a trial. That would be the next
step in the proceedings. . . .
[THE GOVERNMENT]: I just want to make sure the record is clear is
[sic] that we had negotiations—our negotiations are a non-binding plea
agreement, and so the judge is free to either accept the recommendation
or reject it.
THE COURT: Okay. So that’s the situation. So if you are going
forward to the district judge, . . . I’m not involved in that part of the
case. What I would be involved in is whether or not you wish to file
pretrial motions or have an evidentiary hearing on those motions. But
if I’m accepting your withdrawal of motions and waiver of motions then
you would not be able to come back before this court and bring up
pretrial motions again. Do you understand that?
[BLANKS]: Yes.
THE COURT: Is that something that you wish to do?
***
[BLANKS]: Yes.
The record is unambiguous. The magistrate judge warned Blanks that the
district court might reject the plea agreement and that, in those circumstances, Blanks
would not be permitted to re-file his pretrial motions. See id. at 901 (“[The
-4-
defendant’s] waiver was knowing and voluntary, due to the magistrate judge’s
explanation of the right and its consequences.”). Blanks acknowledged that he
understood that risk and decided to withdraw his motions and waive his right to re-
file. On this record, it is clear that Blanks “voluntarily and knowingly agreed to
withdraw his pretrial motions with prejudice, and the court made it clear that [he]
would not be able to raise the motions again if he did proceed to trial.” See United
States v. Garrido, 995 F.2d 808, 815 (8th Cir. 1993).
We reject Blanks’s argument that “good cause exists whenever the defendant’s
failure to file the motion on time or [his] withdrawal of the timely-filed motion was
due to some circumstance beyond his control and the Government would not be
prejudiced.” Blanks accepted the plea agreement rejection as a known risk at the time
he executed the waiver. Any argument that his counsel ineffectively advised him
regarding the risks of withdrawing his pretrial motions and waiving his right to file
further pretrial motions is more properly raised in a habeas petition. See United
States v. Pherigo, 327 F.3d 690, 696 (8th Cir. 2003) (“[C]laims of ineffective
assistance of counsel are best evaluated on facts developed outside of the record on
direct appeal and are properly raised in a post-conviction motion under
28 U.S.C. § 2255 and not on direct appeal.”). Further, “[t]he possibility that other
parties and the court could accommodate a late-filed motion does not mandate that
the court grant an exception to the deadline where the movant fails to make an
adequate showing of good cause.” United States v. Trobee, 551 F.3d 835, 838 (8th
Cir. 2009). The fact that the district court’s rejection of the plea agreement was
beyond Blanks’s control does not alone create good cause in light of his acceptance
of that risk at the time of the waiver.3
3
The out-of-circuit cases that Blanks cites likewise lend him no aid. See, e.g.,
United States v. Mohammed, 501 F. App’x 431, 437–38 (6th Cir. 2012) (dismissal
of untimely pretrial motion was abuse of discretion when a superseding indictment
added a new charge after the motions deadline and therefore failure to raise timely
motion was “based on its legal irrelevance to the pending charges”); United States v.
-5-
B. Admission of Child Pornography Images
Blanks next argues that the district court abused its discretion in admitting
child pornography images at trial despite his willingness to stipulate that they
contained child pornography. He argues (1) that the district court failed to view the
images before deciding to admit them and (2) that the images were unfairly
prejudicial and needlessly cumulative. He argues further that the government should
have been permitted to show only six images—one from each location at which child
pornography was discovered—rather than the forty-two ultimately shown to the jury.
Relevant evidence may be excluded “if its probative value is substantially
outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed.
R. Evid. 403. “Unfairly prejudicial evidence is so inflammatory on its face as to
divert the jury’s attention from the material issues in the trial,” United States v.
Fechner, 952 F.3d 954, 958 (8th Cir. 2020) (internal citation omitted), and thereby
“tends to suggest decision on an improper basis,” United States v. Pruneda, 518 F.3d
597, 605 (8th Cir. 2008) (quoting United States v. Myers, 503 F.3d 676, 682 (8th Cir.
2007)).
Although it might well have been a better practice to examine the images in
question, the district court did not abuse its discretion by making its Rule 403
decision without having done so. The government indicated that it would show only
a small representative sample of the images, which would be drawn from each of the
devices and accounts on which child pornography was discovered. See United States
v. Worthey, 716 F.3d 1107, 1114 (8th Cir. 2013) (child pornography video clips
Salahuddin, 509 F.3d 858, 860–63 (7th Cir. 2007) (district court clearly erred when
it denied review of a pretrial motion that was untimely filed as a result of the parties’
mutual mistake of law regarding the applicability of a prior offense).
-6-
properly admitted when government “had chosen clips as a representative
sample . . . without including the worst of the videos” (internal quotation marks
omitted)). The court explained that “ordinarily all the images are—all the videos are
shown” and expressed its surprise that the government intended to show such a small
percentage of the images, describing this decision as “a substantial withdrawal of
what would ordinarily be shown.” Thus, even without viewing the images, the court
did not abuse its discretion in deciding that Blanks would not be unfairly prejudiced
by the jury’s viewing a small percentage of the images. See id. (“Given the parties’
stated positions, we 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.” (internal quotation marks, brackets, and citation omitted)).
We likewise disagree with Blanks’s contention that the images were unfairly
prejudicial and needlessly cumulative. The images helped the government prove that
Blanks had knowingly received and possessed child pornography on a variety of
different devices and mediums, including his computer and cellphone, a CD, and the
internet. Although Blanks “conceded and stipulated” that the pictures were child
pornography, “[s]tipulation to an element of the offense . . . does not generally
constitute an evidentiary alternative having equal or greater probative value.” United
States v. Sewell, 457 F.3d 841, 844 (8th Cir. 2006). Rather, “‘the prosecution is
entitled to prove its case by evidence of its own choice,’ and ‘a criminal defendant
may not stipulate or admit his way out of the full evidentiary force of the case as the
Government chooses to present it.’” Id. (quoting Old Chief v. United States, 519 U.S.
172, 186–87 (1997)).
Indeed, the government and court took steps to limit the images’ prejudicial
effect. Counsel warned prospective jurors during voir dire about the nature of the
images. The government struck for cause prospective jurors who expressed concern
about being able to view the images objectively, as well as many prospective jurors
who worked with children, who knew victims of sexual assault, or who were
-7-
themselves victims. The government did not seek to admit any of the videos and
introduced only forty-two of the more than 1,000 images received or possessed by
Blanks. See generally United States v. Becht, 267 F.3d 767, 774 (8th Cir. 2001)
(concluding that thirty-nine still photos of child pornography had limited prejudicial
effect when counsel warned prospective jurors, the “court excused for cause three
jurors who stated they would not be able to view such images without prejudicing the
defendant,” and the thirty-nine images were only a fraction of the hundreds of images
that had been discovered).
Conclusion
The judgment is affirmed.
______________________________
-8-