United States v. Briand Fechner ( 2020 )

United States Court of Appeals
For the Eighth Circuit
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No. 18-3711
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United States of America
Plaintiff - Appellee
v.
Briand Daniel Fechner
Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Des Moines
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Submitted: December 13, 2019
Filed: March 12, 2020
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Before ERICKSON, MELLOY, and KOBES, Circuit Judges.
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ERICKSON, Circuit Judge.
Briand Daniel Fechner appeals his conviction for transportation of child
pornography and receipt of child pornography in violation of 18 U.S.C.
§§ 2252A(a)(1), (a)(2), and (b)(1). Fechner challenges the district court’s1 admission
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The Honorable John A. Jarvey, Chief Judge, United States District Court for
the Southern District of Iowa.
of independently downloaded child pornography videos, charts summarizing
materials obtained during the investigation, and child erotica images. We affirm.
I. Background
From September 2014 to March 2015, Agent Chris Thomas of the Iowa
Division of Criminal Investigation downloaded child pornography files from a
BitTorrent account on two Internet Protocol (IP) addresses associated with Fechner’s
home. During thirty-six download sessions from Fechner’s IP addresses, law
enforcement obtained at least 18 videos and 207 pictures of child pornography. In
late March 2015, Fechner reset his phone and destroyed all user data. Additional
child pornography was downloaded from Fechner’s IP addresses in April 2015,
including copies of files that law enforcement had previously downloaded from
Fechner’s IP addresses.
A forensic examination of Fechner’s devices showed extensive child
pornography downloads and searches, with over 100 items being moved to an SD
card in his phone and later deleted. Fechner’s IP address download history showed
child pornography downloads very early in the morning or late at night. Fechner’s
phone and SD card contained meta-data evidence that child pornography videos were
downloaded, viewed, and deleted from the phone. Although Fechner had deleted the
materials, law enforcement was able to recover small sections of video and thumbnail
images from the phone. These images and video clips matched the hash values of
known child pornography.
At trial, the government used summary demonstrative exhibits to introduce
three videos obtained from independent BitTorrent downloads by law enforcement
from sites other than Fechner’s devices. The actual videos from Fechner’s phone and
SD card were unplayable because they had been deleted. However, BitTorrent
settings saved a thumbnail image to the device when a downloaded video was
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opened. These artifacts could be identified by hash value and other information tied
to the thumbnails. The demonstrative exhibits showed that the independently
downloaded videos matched the names, thumbnail images, and hash values of the
unplayable files on Fechner’s phone and SD card. The government offered these
independent downloads as evidence of child pornography on Fechner’s devices.
Fechner filed a motion in limine arguing that the videos were inadmissible under
Federal Rules of Evidence 401, 403, and 404(b).
Fechner testified that he was a BitTorrent expert and a cell phone “superuser”
with full access and control over all user data and applications on his phone. While
he admitted to downloading movies, music, and sometimes adult pornography,
Fechner claimed that he had not downloaded or shared child pornography on
BitTorrent. The government’s expert witness explained that the default settings on
Fechner’s BitTorrent app were changed to increase its sharing capabilities and that
materials downloaded from BitTorrent would have had to manually be moved to the
phone’s SD card.
During Agent Thomas’s testimony, the government offered and played six
videos containing child pornography. After these videos were played, the
government moved to admit exhibit 6, Agent Thomas’s summary of the videos files
downloaded during his undercover download sessions, under Federal Rule of
Evidence 1006. Exhibit 6 included the file name, undercover download date, and a
“very, very brief summary” of the videos already played for the jury as well as 16
additional videos that were playable but had not been admitted into evidence. The
district court overruled Fechner’s hearsay objection and admitted exhibit 6 as a Rule
1006 summary of voluminous records.
The government also introduced images of young girls and women found on
Fechner’s SD card that the district court described as child erotica. The government
asserted that these images were relevant to show Fechner’s sexual interest in children
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and, based on their presence on the SD card, his knowledge of child pornography also
located on the SD card. Fechner moved in limine to exclude these images under
Federal Rules of Evidence 401 and 403 as both irrelevant and being more prejudicial
than probative. The district court recognized that the possession of the child erotica
was not illegal but determined that the evidence was probative to issues of
knowledge, motive, and sexual interest in children and was not unduly prejudicial.
The jury convicted Fechner on all counts.
II. Discussion
We reverse a district court’s evidentiary rulings only if they are a clear abuse
of discretion that prejudices the defendant. United States v. Keys, 918 F.3d 982, 985
(8th Cir. 2019). We will not overturn a conviction due to cumulative trial errors
absent substantial prejudice to the defendant. Id.
A. Independently Downloaded Videos
Fechner argues that the district court erred when it admitted the independently
downloaded child pornography videos. The independently downloaded videos from
BitTorrent matched the hash values, name, length, and thumbnail images to
unplayable files on Fechner’s phone and SD card which demonstrated that they were
identical to the deleted files. Fechner alleges that the videos are more prejudicial than
probative because they cannot establish that he knew his devices contained child
pornography. The government argues that the videos are material to establishing that
the unplayable files on the phone contained child pornography and that the matching
meta-data makes Fechner’s knowledge of child pornography on his phone and SD
card more probable than without the evidence.
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While child pornography videos are inherently disturbing, Rule 403 prohibits
evidence that is unfairly prejudicial, not any evidence detrimental to a defendant’s
case. United States v. Johnson, 463 F.3d 803, 809 (8th Cir. 2006). 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. Betcher, 534 F.3d 820, 825 (8th
Cir. 2008). Evidence does not need to be excluded merely because it is disturbing.
United States v. McCourt, 468 F.3d 1088, 1092–93 (8th Cir. 2006). We afford the
district court broad discretion to admit probative evidence even when prejudicial.
United States v. Novak, 866 F.3d 921, 926 (8th Cir. 2017). And we have consistently
found no abuse of discretion where a court admits relevant pornographic images. See
United States v. Pruneda, 518 F.3d 597, 605 (8th Cir. 2008); see also United States
v. Kelley, 861 F.3d 790, 798–99 (8th Cir. 2017).
In McCourt, we concluded that showing a limited number of child pornography
videos, of a minimal duration, to the jury was relevant and did not constitute unfair
prejudice. 468 F.3d at 1092. Here, like in McCourt, the jury saw only short clips of
a few independently downloaded videos. These videos were relevant to establish that
Fechner knowingly possessed child pornography. See Novak, 866 F.3d at 925
(finding evidence connecting defendant to external hard drive folders containing child
pornography relevant to determine if defendant was guilty of knowing possession of
child pornography). Because this evidence goes directly to the issues of the case, it
is more probative than prejudicial. The district court did not err in admitting the
independently downloaded videos.
B. Summaries
Fechner argues that the district court erred when it admitted exhibit 6, a
summary of the videos downloaded by Agent Thomas during his undercover
investigation, because the summary included brief descriptions of videos that had not
been shown to the jury. The government offered exhibit 6 as a summary of
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voluminous records under Rule 1006. Agent Thomas testified that he watched all of
the videos and created the summary in part to prevent the jury from having to view
all of the pornographic materials. Fechner’s only objection to the Rule 1006
summary at trial was hearsay, and he argues that the summary included evidence not
in the record for the first time on appeal.
We will not reverse a district court’s decision on the admissibility of summary
evidence absent an abuse of discretion. United States v. Green, 428 F.3d 1131, 1134
(8th Cir. 2005). Rule 1006 permits the use of “a summary, chart, or calculation to
prove the content of voluminous writings, recordings, or photographs that cannot be
conveniently examined in court.” Fed. R. Evid. 1006. Summaries are properly
admissible when (1) they fairly summarize voluminous trial evidence; (2) they assist
the jury in understanding the testimony already introduced; and (3) the witness who
prepared it is subject to cross-examination with all documents used to prepare the
summary. United States v. Hawkins, 796 F.3d 843, 865 (8th Cir. 2015).
Rule 1006 allows for the admission of summaries “when doing so is the only
practicable means of making [the content of voluminous evidence] available to the
judge and jury.” Id. Evidence used to create the summary must be made available
for examination by other parties, and the court may require the evidence be produced
in court. Fed. R. Evid. 1006; see United States v. Kilpatrick, 798 F.3d 365, 383 (6th
Cir. 2015) (“The point of Rule 1006 is to avoid introducing all the documents.”
(emphasis in original)). The party offering a Rule 1006 summary has the burden of
showing that the contents of the summary are admissible. 31 Wright & Miller, Fed.
Prac. & Proc. Evid. § 8043 (1st ed.). Any assumptions or conclusions contained in
a Rule 1006 summary must be based on evidence already in the record. Green, 428
F.3d at 1134. Summaries properly admitted under Rule 1006 can be treated as
evidence and allowed in the jury room during deliberations, but the district court
should issue proper limiting instructions. Id.
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Here, exhibit 6 summarized videos which would have been admissible on their
own. The summary included the names, the date created, and a brief description of
36 video files downloaded during undercover download sessions. Of these files, 15
stated only that “No video could be played” and 6 were already admitted into
evidence. The descriptions in the summary depict what occurred in the video but do
not make any conclusions or assumptions about the content. For example, one
description states “Depicts a minor female in a swimming suit.” Such statements are
reports on what was contained in the video, not assumptions or conclusions that
would require the evidence being summarized to already be in evidence. See United
States v. Adejumo, 772 F.3d 513, 525 (8th Cir. 2014) (finding chart submitted before
evidence made assumption that the defendant was the head of the conspiracy).
Because exhibit 6 does not make assumptions or conclusions, the evidence
summarized within it needed only to be admissible, not already admitted. The district
court did not abuse its discretion in allowing the summary.
Even if exhibit 6 had made conclusions or assumptions, “[a]n erroneous
evidentiary ruling is harmless if it did not have a substantial influence on the jury’s
verdict.” Hawkins, 796 F.3d at 866 (cleaned up). Based on the record, we cannot say
that the inclusion of brief descriptions of downloaded videos substantially influenced
the jury’s verdict. Prior to exhibit 6’s admission, the jury viewed 6 of the child
pornography videos included in the summary. Viewing these videos, in addition to
the testimony and additional exhibits presented to prove Fechner’s guilt, was
sufficient to establish that the videos from the undercover downloads contained child
pornography. Any additional information gleamed from exhibit 6 was cumulative
and did not affect Fechner’s substantial rights. Any error from admitting the
summary was harmless. See Adejumo, 772 F.3d at 525 (finding improperly admitted
summary harmless); see also Hawkins, 796 F.3d at 867 (“Given the strength of [the]
evidence and the safeguards that were implemented to minimize the prejudicial effect
of [the exhibit’s] admission, we cannot say that the district court’s evidentiary error
had a substantial influence on the jury’s verdict.” (Internal quotation marks omitted)).
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Fechner also argues that the three summary demonstrative exhibits, or
pedagogic devices, are improperly conclusory. The district court has discretion to
allow the use of demonstrative exhibits, and we review only if its use “was so unfair
and misleading as to require a reversal.” United States v. Needham, 852 F.3d 830,
837 (8th Cir. 2017) (internal quotation marks omitted). Fechner asserts that the
inclusion of descriptions stating that the videos involve minors engaged in sexual
activity and match thumbnails found on his devices make the demonstrative exhibits
argumentative and improper. However, the demonstrative exhibits at issue merely
provided a visual aid during Agent Thomas’s testimony regarding other evidence.
The videos described in the demonstrative exhibits were properly submitted into
evidence, and the district court did not abuse its discretion by receiving the summary
demonstrative exhibits.
C. Child Erotica Images
Fechner also contends the district court erred in admitting child erotica found
on his SD card. He asserts that the images were improper propensity evidence used
only to establish that he acted in accordance with his alleged character. The
government argues that the images are intrinsic evidence used to provide a total
picture of the charged crime. Alternatively, the government argues that the images
are proper Rule 404(b) evidence to show motive, knowledge, and lack of accident.
The government further asserts that because Fechner had to manually move the
images to his SD card, the images evidence his knowledge and ability to place
materials on and delete them from the SD card.
We reject the government’s argument that the child erotica images are intrinsic
evidence inextricably intertwined with the crime charged. See United States v.
Heidebur, 122 F.3d 577, 580 (8th Cir. 1997). The existence of the images on the SD
card is not “bad acts that form the factual setting of the crime in issue” or that “form
an integral part of the crime charged.” Id. at 579.
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Although not intrinsic evidence, the child erotica images may still be
admissible 404(b) evidence. We will reverse the district court’s 404(b) ruling only
if the evidence clearly has no bearing on the case. United States v. Campbell, 764
F.3d 880, 889 (8th Cir. 2014). “Propensity evidence, whether of a person’s general
character or examples of specific bad acts, is ordinarily excluded because of the
likelihood the jury may misuse it.” United States v. Johnson, 439 F.3d 884, 887 (8th
Cir. 2006). However, such evidence may still be admitted if it is: “(1) relevant to a
material issue raised at trial; (2) similar in kind and close in time to the crime charge;
(3) supported by sufficient evidence to support a jury finding that the defendant
committed the other act; and (4) its probative value is not substantially outweighed
by its prejudicial value.” Heidebur, 122 F.3d at 580.
Over 400 child erotica images were found on Fechner’s SD card. Testimony
at trial established that Fechner’s BitTorrent download setting automatically saved
downloads onto his phone, not the SD card. To place the items on the SD card, a
user would have to manually copy the items from the phone. Because hash values
and thumbnail images of deleted child pornography were also found on the SD card,
the evidence is relevant to establish that Fechner knew about child pornography on
the SD card. The sheer volume of these images that had to be moved manually onto
the SD card makes it less probable that Fechner did not know what was on the SD
card. The child erotica images are also relevant to establish a motive for possessing
child pornography and rebut claims of accident or mistake. See United States v.
Vosburgh, 602 F.3d 512, 538 (3d Cir. 2010) (finding the possession of child erotica
suggested that the defendant harbored a sexual interest in children and tended to
disprove any argument that he unknowingly or accidentally possessed child
pornography images); see also United States v. Hansel, 524 F.3d 841, 846 (8th Cir.
2008) (finding possession of child erotica, as part of the totality of the circumstances,
can establish probable cause that defendant had child pornography on his computer).
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Fechner argues that the potential prejudice and the jury’s likelihood to misuse
propensity evidence outweigh any probative value. In United States v. Johnson, two
pornographic stories found under Johnson’s bed were admitted to demonstrate his
interest in and predisposition to possess child pornography. 439 F.3d at 886. The
court provided a limiting instruction that the evidence could be considered to prove
Johnson’s “inherent tendency to commit the acts charged in the Indictment.” Id. We
rejected the government’s argument that it was admissible under Rule 404(b),
finding that the stories added nothing to determining if Johnson inadvertently
downloaded child pornography. Id. at 889.
In United States v. Evans, the district court admitted stories of adult men
engaging in sexual acts with minors found on Evans’ computer. 802 F.3d 942, 947
(8th Cir. 2015). The court noted that the systematic organization of the stories and
images on various hard drives showed “more than sort of a casual attention to these
items.” Id. On appeal, we determined that the stories’ presence in highly organized
files by itself did nothing to rebut Evans’ argument that a virus was responsible for
placing the files on his computer. Id. We noted that the location of the stories plus
evidence that Evans had accessed the folder would “tend to suggest Evans was aware
of the stories,” which would then “tend to refute his defense that he had no
knowledge of any inappropriate materials” on his devices. Id. at 948.
The stories in Johnson and Evans were offered solely to establish an interest
in young children. No other possibility existed for their usefulness at trial. Here, the
child erotica’s location in the same place where deleted child pornography hash
values were found, and evidence that child erotica had to be manually moved to the
SD card, was relevant to the jury’s determination of whether Fechner knowingly
possessed child pornography. While Fechner argues that the location of the images
could not establish knowledge because they were inaccessible after deletion, we have
permitted admission of such evidence when the files are inaccessible due to the
defendant’s action in deleting them. See United States v. Marmon, 674 F. App’x.
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600, 602 (8th Cir. 2017) (unpublished). Admission of the child erotica images was
permissible under Rule 404(b).
Even if there was error in admitting the child erotica images, it was harmless.
While the content of the child erotica may suggest a sexual interest in children, that
is not the sole purpose of the evidence. The jury saw only one image and the content
of the images was not discussed at length. See Evans, 802 F.3d at 949 (finding the
admission of propensity evidence harmless where the jury did not hear the content
of pornographic stories and ample properly admitted evidence limited the stories’
likelihood of influencing the jury’s verdict). Any prejudice that resulted from
admission of the child erotica images is harmless.
D. Jury Instruction
Fechner argues that the district court’s limiting instruction regarding child
erotica prejudiced him. He asserts that any “standard” instructions given at the end
of trial were insufficient to undo the damage. Following presentation of the child
erotica images, the court stated:
Members of the jury, these particular exhibits are not child
pornography. They’re not admitted for the purposes of – the
Government’s not seeking a conviction on Counts 1, 2, or 3 based on
them. They are offered to show the defendant’s interest in young girls
and the motivation for committing the crimes set forth in Counts 1, 2,
or 3. Use them for any purpose consistent with that that you find
helpful.
Although the phrasing of the limiting instruction is not a model of clarity,
Fechner did not object to the limiting instruction at trial. Without an objection we
review only for plain error. United States v. Poitra, 648 F.3d 884, 887 (8th Cir.
2011). To obtain relief under plain error, Fechner must show that there was an error,
the error was clear or obvious under current law, the error affected his substantial
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rights, and the error seriously affected the fairness, integrity, or public reputation of
judicial proceedings. Id. We are reluctant to disturb a conviction based on “a few
isolated, allegedly prejudicial comments of a trial judge.” Keys, 918 F.3d at 987
(internal quotation omitted). While a more precise instruction would have been
desirable Fechner has not shown plain error.
More importantly the district court gave a standard 404(b) instruction as part
of the final jury instructions, which we have previously determined cures unfair
prejudice. United States v. Adams, 783 F.3d 1145, 1150 (8th Cir. 2015); see also
Vosburgh, 602 F.3d at 538 (finding the risk of unfair prejudice from admitting child
erotica images low because the district court instructed the jury that the defendant
was not on trial for possessing child erotica and the images were not illegal).
Fechner has not established that the final jury instructions were insufficient to cure
any alleged prejudice. Nor has he shown a violation of his substantial rights or that
any prejudice influenced the guilty verdict. See United States v. Carlson, 613 F.3d
813, 820-21 (8th Cir. 2010).
III. Conclusion
For the foregoing reasons, we affirm the judgment of the district court.
KOBES, Circuit Judge, concurring in part and concurring in the judgment.
I join the majority’s well-reasoned opinion on all but one issue. The district
court erred by admitting non-pornographic images of children found on the SD card.
Although the Government argues that these images show Fechner knowingly
possessed child pornography, they were admitted as propensity evidence. The
district court specifically instructed the jury to consider the images as evidence of
“the defendant’s interest in young girls and the motivation for committing [his]
crimes.” This is the same as evidence showing a defendant’s “inherent tendency”
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or “predisposition” to possess child pornography. See United States v. Johnson, 439
F.3d 884, 887 (8th Cir. 2006). I concur in the judgment because I agree the error
was harmless in light of the “ample properly-admitted evidence that [Fechner]
knowingly possessed child pornography.” United States v. Evans, 802 F.3d 942, 949
(8th Cir. 2015).
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