United States v. Bryan Rusnak ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10137
Plaintiff-Appellee,
D.C. No.
v. 4:15-cr-00894-
JGZ-LCK-1
BRYAN RUSNAK,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Arizona
Jennifer G. Zipps, District Judge, Presiding
Argued and Submitted February 11, 2020
Pasadena, California
Filed November 25, 2020
Before: Marsha S. Berzon, Ryan D. Nelson, and
Kenneth K. Lee, Circuit Judges.
Opinion by Judge R. Nelson
2 UNITED STATES V. RUSNAK
SUMMARY *
Criminal Law
The panel affirmed a conviction for accessing,
possessing, and distributing child pornography; vacated
some of the Conditions of Supervised Release; and
remanded for further proceedings.
The defendant argued that an FBI agent’s trial testimony
differed materially from his warrant affidavit, thereby
entitling the defendant to suppression of the evidence seized
pursuant to the warrant or, in the alternative, a second
hearing under Franks v. Delaware, 438 U.S. 154 (1978).
The panel held that the defendant arguably waived his
Franks claim regarding the agent’s trial testimony, and that
any error was not plain.
The parties entered into an agreement that required them
to disclose the identity of testifying witnesses and provided
that any undisclosed witness was potentially subject to
exclusion. The defendant claimed that the district court
violated Wardius v. Oregon, 412 U.S. 470 (1973), by
unequally enforcing the agreement when it limited the trial
testimony of the defendant’s wife—whom the defendant did
not disclose as a potential witness—while allowing allegedly
undisclosed testimony from the FBI agent. Assuming
(without deciding) that de novo review applies and that
Wardius applies to a district court’s evidentiary decisions,
the panel denied relief because the defendant, not the
Government, benefited more from the district court’s
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. RUSNAK 3
enforcement of the agreement. The panel wrote that this
conclusion forecloses the defendant’s additional arguments
that the district court abused its discretion by failing to weigh
the defendant’s need for his wife’s testimony prior to
excluding it and that the district court erred by imposing a
witness exclusion in violation of the Sixth Amendment.
The defendant claimed that the district court erred by
allowing the Government to admit—in the guise of speaking
questions—his wife’s hearsay statements to FBI agents, and
that the speaking questions were outside the scope of cross-
examination. The panel held that the district court
committed plain error by allowing the questions, which were
outside the scope of direct examination, and by allowing the
out-of-court hearsay statements for their truth under the
guise of impeachment. The panel concluded, however, that
the errors did not affect the defendant’s substantial rights
because the defendant did not show there is a reasonable
probability that, but for the errors, the result of the
proceeding would have been different.
Because the defendant was afforded the opportunity—
albeit in a limited fashion—to redirect the defendant’s wife,
the panel rejected the defendant’s contention that the
Government’s questions combined with the limited redirect
violated his Confrontation Clause right to confront his wife
about her statements to the FBI agents.
Rejecting the defendant’s argument that the district court
erred in denying his motion for a new trial because there was
prosecutorial misconduct during its rebuttal summation, the
panel held that the summation, while toeing the line, was
ultimately a fair comment on the state of the evidence; and
that the district court’s curative oral instruction, repeated in
a written instruction, makes any error harmless.
4 UNITED STATES V. RUSNAK
The panel held that the district court did not err, let alone
plainly err, in imposing a lifetime term of supervised release.
The Government conceded that remand is required to
conform the written judgment to the oral pronouncement of
Special Conditions of Supervised Release 2, 3, 4, 5, 6, 7,
and 8; and that Special Conditions 5 and 8 must be vacated
and remanded for the district court to reconsider. The panel
held that imposition of Special Condition 7—which,
conformed to the oral pronouncement, requires the
defendant to submit to searches of his person and property
by his probation officer, but does not contain a reasonable
suspicion requirement—was not an abuse of discretion or
plain error.
COUNSEL
Molly A. Karlin (argued), Assistant Federal Public
Defender; Jon M. Sands, Federal Public Defender; Office of
the Federal Public Defender, Tucson, Arizona; for
Defendant-Appellant.
Shelley K.G. Clemens (argued), Assistant United States
Attorney; Robert L. Miskell, Appellate Chief; Michael
Bailey, United States Attorney; United States Attorney’s
Office, Tucson, Arizona; for Plaintiff-Appellee.
UNITED STATES V. RUSNAK 5
OPINION
R. NELSON, Circuit Judge:
Bryan Rusnak appeals his conviction and sentence for
accessing, possessing, and distributing child pornography.
We affirm Rusnak’s criminal conviction, vacate some of the
challenged Conditions of Supervised Release, and remand
for further proceedings.
I
On May 10, 2014, FBI Agent Jimmie Daniels received
eight images depicting child pornography from an unknown
individual using a peer-to-peer file sharing website.
Subscriber information from CenturyLink tied the unknown
individual’s IP address to Rusnak’s home in Vail, Arizona.
Nearly five months later FBI Agent Eric Campbell applied
for a warrant to search Rusnak’s home for evidence of child
pornography. In his affidavit, Agent Campbell stated
offenders “[o]ften maintain their collections . . . for several
years” and keep the collections “close by, usually at the
individual’s residence, to enable the collector to view the
collection, which is valued highly.” He also stated that
electronic files “can be recovered months or even years after
they have been downloaded . . . using readily-available
forensics tools.”
FBI Agents executed the search warrant at Rusnak’s
home on October 2, 2014, seizing, among other things, two
laptops and a desktop computer. A forensic search of the
seized computers found child pornography and search terms
associated with child pornography, and one of Rusnak’s
laptops had on it CCleaner—a downloadable software
program used to delete information from computers—and
PeerBlock—a downloadable software program that provides
6 UNITED STATES V. RUSNAK
“additional firewall . . . to keep people out of your
computer.”
Rusnak was indicted on four counts: two counts of
knowing access with intent to view child pornography, one
count of possession of child pornography, and one count of
distribution of child pornography. He pled not guilty to each
count.
Rusnak moved to suppress the evidence seized from his
home. He argued the warrant to search his home lacked
sufficient probable cause because Agent Campbell’s warrant
affidavit relied on stale evidence. The magistrate judge
recommended denying Rusnak’s motion to suppress,
reasoning that the five-month delay between the day Agent
Daniels received the child pornography and execution of the
warrant “did not render th[e] evidence [relied on in the
warrant affidavit] stale.” According to the magistrate judge,
despite the delay, it was likely at the time the warrant was
issued that evidence of child pornography “would still be
found” in Rusnak’s home. The district court adopted the
report and denied the motion.
Before trial, the Government and Rusnak entered an
agreement (the “Agreement”) to disclose to each other
before trial “[a] list of all potential witnesses for the party’s
case in chief and a summary of their expected testimony if a
report or statement covering the expected testimony ha[d]
not already been provided.” The Government filed a witness
list that included Rusnak’s wife, Stephanie, as a potential
witness. Rusnak did not file a witness list and stated he was
the only potential witness for his case in chief.
Rusnak asserted during his opening statement at trial that
the evidence would show that a visitor to his home—later
identified as his friend, Steve Chamberlain—accessed,
UNITED STATES V. RUSNAK 7
possessed, and distributed the child pornography without
Rusnak’s knowledge. The Government objected to
Rusnak’s opening, arguing it was “being sandbagged”
because Rusnak had failed to disclose the identity of the
alternate culprit. Rusnak reiterated he did not have witnesses
and that information about third-party culprits would only
come in if Rusnak testified or the Government solicited that
testimony from Stephanie. The district court did not rule on
the Government’s objection.
Rusnak’s appeal focuses on three portions of the trial:
(1) the testimony of Agent Campbell; (2) the testimony of
Rusnak’s wife, Stephanie; and (3) the Government’s
summation. We describe those parts of the trial below.
Agent Campbell’s Testimony
Agent Campbell, whose affidavit secured the search
warrant for Rusnak’s home, testified on the second and third
days of trial. He asserted that CCleaner was discovered on
Rusnak’s laptop and “can be used to wipe . . . computers . . .
mak[ing] it extremely difficult or impossible to find” the
images of child pornography. He acknowledged that the
Government “can’t recover things that have been cleaned up,
typically” but stated “[w]e kind of get lucky sometimes with
the forensic review.”
Agent Campbell also testified that he had observed a
change in the characteristics of younger child pornography
collectors versus older collectors:
The change is we refer to them as download
and deleters [sic]. We are seeing a lot more
of that now. Especially as Internet speeds get
faster, as our defendants or the subjects of our
investigations get younger and more familiar
8 UNITED STATES V. RUSNAK
with technology, they are less likely to hold
on to large collections. It may be
stereotypical, but typically older individuals
who live by themselves, they maintain those
very large collections over years and years.
What I’m seeing, though, are younger and
younger people using these more high-speed
technologies, they don’t do that. They delete
their stuff. They clean up after themselves,
and they know they can go back and get it
again.
Finally, Agent Campbell described the process used by child
pornography collectors to find and download child
pornography using peer-to-peer websites:
It’s not a quick process. I mean, you’ve got to
find it, so you search, and fortunately I guess
child pornography is not that easy to find on
the Internet. If you’re looking for child
pornography specifically, it’s going to take
longer . . . .
Once you find it, the torrent downloads itself
just to give the instructions to uTorrent as to
how to get those files. That part downloads
pretty quick, but the lengthy process is
getting that payload. Typically, uTorrent is
used to get big files, and although it is a more
efficient way to share files on the Internet, it’s
still not quick, especially if it’s content that’s
not out there a lot, such as child pornography,
a brand-new movie, or a brand-new TV
show. Usually those things, they could be
hours. If it’s something that’s really big and
UNITED STATES V. RUSNAK 9
really rare, you could leave it running for
days. Some people do that.
Stephanie Rusnak’s Testimony
After the government rested its case without calling
Stephanie, Rusnak attempted to call Stephanie as his first
witness. Rusnak had not listed Stephanie as a witness or
provided a summary of her expected testimony, as required
by the Agreement. The Government moved to preclude
Stephanie from testifying about any subject not disclosed
during her FBI interviews, including whether other
individuals could have been responsible for accessing,
downloading, and distributing the child pornography.
Rusnak offered that he would not ask Stephanie “about other
people in the house,” so long as the Government did not
argue during “closing that there was no corroboration for
what Mr. Rusnak is going to say, because [Stephanie] would
just corroborate what [Mr. Rusnak is] going to say, that there
were a lot of people at the house.”
The Government agreed to this arrangement, and the
district court incorporated the arrangement in its subsequent
ruling that “Ms. Rusnak [will] be precluded from testifying
as to any subject matter that was not previously disclosed,
and in this case it sounds as if the only disclosure that
occurred was as part of the 302s and the interviews that were
done of Ms. Rusnak.” 1
Stephanie testified that the only residents in the home
were herself, her mother, Rusnak, and their two daughters.
1
Summary FD-302 reports of Stephanie’s two FBI interviews were
produced to Rusnak.
10 UNITED STATES V. RUSNAK
During cross-examination, the Government asked
Stephanie:
Q. When you talked to the [FBI] agents in
October of ’14 and then again in March of
‘16, you told them you didn’t know of anyone
who could have downloaded child
pornography at the house, correct?
A. Right.
Q. And you told them that no one else stayed
at the house?
A. I might have said that. I don’t recall.
At the end of this exchange, Rusnak objected that the
questions left a false impression with the jury that no visitors
came to the house. The district court overruled Rusnak’s
objection, stating:
I think you can follow up and ask her what
she meant by stay at the house, but I don’t
think it’s a backdoor way to get into people
visited [sic] the house. And I think actually,
in the common sense of the jurors, that
“somebody doesn’t stay at the house” doesn’t
mean that there aren’t other people at the
house.
So I think you can clarify what she meant
when she said that, but I don’t think you can
go into who else had access to the computers,
as in who was using the computers, to the
UNITED STATES V. RUSNAK 11
extent that it’s outside the scope of the
interview.
Stephanie then clarified on redirect that when she “told the
FBI [she] didn’t know anybody else who was staying at the
house” she meant “[n]obody else lived at the house.”
The Government’s Summation
During its summation, the Government focused on
discrediting Rusnak’s theory that Chamberlain or another
visitor to the house was responsible for accessing,
possessing, and distributing the child pornography. It argued
“[y]ou . . . heard from . . . [Rusnak’s] wife, and what she told
law enforcement on multiple occasions is that she didn’t
know how child pornography could be on those computers.”
The Government also posited that Rusnak’s defense was
implausible because he remained friends with Chamberlain.
Pointing to a picture taken during the October 2014 search
of Rusnak’s home, the Government stated that Rusnak’s
desktop computer was
right next to a crib, right next to a place where
a child is sleeping. But what the defendant
wants you to believe is that his friend that
he’s still friends with went into this room,
looked at child pornography, did whatever it
is he was going to do while he was looking at
the child pornography right here next to this
crib.
Rusnak objected, arguing that he had not moved into the
home in the photograph until 2013 and that the metadata
associated with the child pornography file on the desktop
computer only showed that it was downloaded in 2010. The
12 UNITED STATES V. RUSNAK
Government countered that the file was “accessible” in
October 2014. The district court sustained Rusnak’s
objection, instructed the Government to “move on from that
point,” and issued a curative instruction to the jury
reminding them “that the lawyers’ statements aren’t
evidence. You’ll be the one to determine what the evidence
is based on your recollection of that evidence, and your
recollection controls.”
The Verdict, Post-Trial Motion, And Sentencing
The jury returned a guilty verdict on all four counts.
Rusnak sought a new trial, arguing (1) the limitation placed
on Stephanie’s testimony was improper; (2) Agent
Campbell’s testimony regarding the characteristics of
younger child pornography defendants and the amount of
time it takes to access child pornography was untimely under
the Jencks Act; and (3) the Government’s rebuttal
summation regarding the proximity of the computer to the
child’s crib misstated the evidence and was unfairly
prejudicial.
The district court denied Rusnak’s motion for a new trial.
It held that the limitation placed on Stephanie’s testimony
was an appropriate discovery sanction because Rusnak’s
“non-disclosure of Stephanie[’s] . . . proposed testimony
was for the purpose of tactical advantage.” Additionally, the
district court held that Agent Campbell’s description of
younger child pornography defendants did not need to be
disclosed under the Jencks Act. Finally, the district court
held that the Government’s summation argument “was a fair
comment on the state of the evidence” and that the curative
instruction remedied any unfairness.
At sentencing, the district court varied downward,
imposing concurrent 87-month sentences on all four counts.
UNITED STATES V. RUSNAK 13
It also imposed a lifetime term of supervised release,
including eight Special Conditions of Supervised Release.
II
Rusnak raises six claims of error relating to his
conviction. Each is unavailing.
A
We begin with Rusnak’s contention that Agent
Campbell’s trial testimony materially differed from his
warrant affidavit, thereby entitling Rusnak to suppression of
the evidence seized pursuant to the search warrant or, in the
alternative, a second hearing under Franks v. Delaware,
438 U.S. 154 (1978). We have not previously applied
Franks in this way. The Fourth Circuit, however, has held
that a criminal defendant may be entitled to a Franks hearing
when the affiant who secured the search warrant makes
statements at trial that contradict the warrant affidavit. See
United States v. White, 850 F.3d 667, 673 (4th Cir. 2017).
We need not decide whether to follow White because
Rusnak waived his Franks claim regarding Agent
Campbell’s trial testimony. “As a general rule, we will not
consider issues raised for the first time on appeal.” United
States v. Rubalcaba, 811 F.2d 491, 493 (9th Cir. 1987).
Though Rusnak made a Franks argument regarding the
search warrant before a magistrate judge in September 2016,
that argument was not predicated on Agent Campbell’s trial
testimony, which was not offered until October 2016.
Unlike the defendant in White, Rusnak failed to
“immediately request[]” a second Franks hearing after
Agent Campbell testified. White, 850 F.3d at 673. And
Rusnak did not make a Franks argument in his motion for a
14 UNITED STATES V. RUSNAK
new trial, instead arguing that Agent Campbell’s trial
testimony violated the Jencks Act.
An argument is waived where it is known to the
defendant and intentionally not pursued. United States v.
Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en banc). Rusnak
was aware of the Franks doctrine because he made a Franks
argument pretrial regarding the search warrant. Because
there is “evidence that the defendant was aware of the right
he was relinquishing and relinquished it anyway,” Rusnak’s
Franks claim is arguably waived. See United States v.
Depue, 912 F.3d 1227, 1233 (9th Cir. 2019) (en banc).
But even if we do not accept Rusnak’s first Franks
argument as evidence that he was aware of the availability
of a newly minted Franks argument after Agent Campbell’s
testimony, his argument nonetheless fails. Absent “evidence
that the defendant was aware of the right he was
relinquishing[,] . . . failure to preserve a claim constitutes
forfeiture subject to plain error review.” Id. Plain error
applies to a trial error that should have been, but was not,
recognized by the district court.
In this case, no plain error occurred. No case in our
circuit has applied Franks in this context. And any error in
this case would be predicated on an expectation that the
district court should have remembered what was in a warrant
affidavit submitted two years earlier, realized that the
testimony was inconsistent with that affidavit, and evaluated
that inconsistency under a standard never before applied to a
similar context. Under the circumstances, any error was not
plain. As the district court did not commit plain error,
Rusnak’s argument fails under plain-error analysis.
UNITED STATES V. RUSNAK 15
B
We turn now to Rusnak’s claims of error regarding
Stephanie’s testimony. We reject each of Rusnak’s claims
either because they lack merit or do not constitute plain
error.
i
The parties’ Agreement required them to disclose the
identity of testifying witnesses. It provided that any
undisclosed witness was potentially subject to exclusion at
the discretion of the district court. Rusnak did not disclose
Stephanie as a potential witness but called her at trial.
Rusnak claims the district court unequally enforced the
Agreement in violation of Wardius v. Oregon, 412 U.S. 470(1973), by limiting Stephanie’s testimony but allowing
allegedly undisclosed testimony from Agent Campbell. We
assume (but do not decide) that de novo review applies. See
Toquero v. I.N.S., 956 F.2d 193, 194–95 (9th Cir. 1992)
(holding it was not necessary to decide which standard of
review applied when the argument would fail under de novo
review).
In Wardius, the defendant challenged an Oregon law
barring defendants from introducing any alibi evidence
unless the defendant, prior to trial, gave the Government
notice of “where the defendant claims to have been at the
time or times of the alleged offense together with the name
and residence or business address of each witness upon
whom the defendant intends to rely for alibi evidence.”
412 U.S. at 472 n.3 (citation omitted); see id. at 471–72.
Because Wardius failed to comply with the notice
requirement, the trial court excluded his alibi evidence,
thereby preventing him from mounting an effective defense.
See id. at 473. Wardius brought a facial challenge to the
16 UNITED STATES V. RUSNAK
statute, and the Supreme Court held “that the Due Process
Clause of the Fourteenth Amendment forbids enforcement
of alibi rules unless reciprocal discovery rights are given to
criminal defendants.” Id. at 472.
We have generally limited Wardius to cases involving
facial or as-applied challenges to discovery statutes or
regulations that favor the prosecution. See, e.g., United
States v. Bahamonde, 445 F.3d 1225, 1228–30 (9th Cir.
2006) (applying Wardius to evaluate whether a Department
of Homeland Security regulation unfairly favored the
prosecution). But even assuming Wardius applies to a
district court’s evidentiary decisions—a question we do not
decide—Rusnak would not prevail because he received the
lion’s share of the benefit from the district court’s
enforcement of the Agreement.
Rusnak concedes he failed to disclose Stephanie as a
witness, explaining that he did not do so because Stephanie
appeared on the Government’s witness list. But the trial
rules governing cross-examining an adverse witness and
directly examining one’s own witness are different as to both
scope and mode. Nor is there any indication that the
Agreement permitted a party to leave an individual off its list
of potential affirmative witnesses because that name
appeared on the opposing party’s list.
Despite the Agreement’s provision that an undisclosed
witness could be excluded entirely from testifying, the
district court allowed Stephanie to testify, subject to the
limitation that she was “precluded from testifying as to any
subject matter that was not previously disclosed” in the FD-
302 reports. The district court also barred the Government
from using the limitation offensively to argue that “there was
no corroboration . . . that there were a lot of people at
[Rusnak’s] house.” Allowing Stephanie to testify was
UNITED STATES V. RUSNAK 17
particularly generous to Rusnak given that the Government
had already rested its case in chief, thereby foreclosing its
ability to directly examine Stephanie. See United States v.
Aceves-Rosales, 832 F.2d 1155, 1156–57 (9th Cir. 1987)
(noting that disclosure of evidence by defendant after the
government rested its case in chief supported the district
court’s decision to exclude that evidence).
Against this misconduct, Rusnak asks us to weigh his
allegation that the district court allowed the Government to
violate the Agreement by eliciting testimony from Agent
Campbell that was not disclosed in the pretrial summary.
But Agent Campbell’s testimony was not outside the scope
of the pretrial disclosure summary, which indicated he
would “provide background and other information regarding
. . . BitTorrent and c-cleaner.” This disclosure
foreshadowed his testimony describing the length of time it
takes to find and download child pornography using
BitTorrent. Similarly, the pretrial disclosure summary’s
discussion of “c-cleaner” foreshadowed Agent Campbell’s
testimony about child pornography collectors who use
CCleaner to delete previously downloaded materials on their
computers to avoid detection.
We conclude, therefore, that Rusnak, not the
Government, benefited more from the district court’s
enforcement of the Agreement. This conclusion forecloses
Rusnak’s additional arguments that the district court abused
its discretion by failing to weigh Rusnak’s need for
Stephanie’s testimony prior to excluding it and that the
district court erred by imposing a witness exclusion in
violation of the Sixth Amendment. The district court honed
a well-crafted and sensible course of action in the face of
Rusnak’s misconduct, which preserved his ability to mount
an effective, though unsuccessful, defense.
18 UNITED STATES V. RUSNAK
ii
We next address Rusnak’s claims that the district court
erred by allowing the Government to admit, in the guise of
speaking questions, Stephanie’s hearsay statements to FBI
Agents. Rusnak also contends that the speaking questions
were outside the scope of cross-examination. Both claims
relate to the following exchange between the Government
and Stephanie:
Q. When you talked to the [FBI] agents in
October of ’14 and then again in March of
’16, you told them you didn’t know of anyone
who could have downloaded child
pornography at the house, correct?
A. Right.
Q. And you told them that no one else stayed
at the house?
A. I might have said that. I don’t recall.
We must determine as a threshold matter what standard
of review applies to Rusnak’s scope and hearsay claims.
Rusnak did not contemporaneously object to the
Government’s questions. After additional unrelated
questioning from the Government, Rusnak asked for a
sidebar, at which he argued that the Government “open[ed]
the door, and . . . le[ft] the wrong impression with the jury”
that no one visited the Rusnaks’ home. The district court
disagreed that the Government’s questions insinuated that no
one else ever visited the home but allowed Rusnak to follow
up during redirect about what Stephanie meant by “stay at
UNITED STATES V. RUSNAK 19
the house.” Stephanie clarified that, when she said “staying
at the house,” she meant “nobody else lived at the home.”
We conclude that Rusnak’s objection was not based on
hearsay or scope, but instead was predicated on the trial
court’s prior admonition to the Government not to use the
discovery sanction it imposed on Rusnak offensively.
“When a defendant does not object to the introduction of
evidence at trial on the same grounds as raised on appeal, the
district court will only be reversed for plain error.” United
States v. McInnis, 976 F.2d 1226, 1231 n.3 (9th Cir. 1992).
Because Rusnak failed to object on scope or hearsay
grounds, we review for plain error. See United States v.
Blandin, 435 F.3d 1191, 1195 (9th Cir. 2006) (improper
hearsay); United States v. Combs, 379 F.3d 564, 568 (9th
Cir. 2004) (improper scope). Accordingly, Rusnak bears the
burden of demonstrating that the district court committed
“(1) error; (2) that [wa]s plain; (3) that affect[ed] substantial
rights; and (4) . . . seriously affect[ed] the fairness, integrity,
or public reputation of judicial proceedings.” United States
v. Pelisamen, 641 F.3d 399, 404 (9th Cir. 2011) (citing
Johnson v. United States, 520 U.S. 461, 466–67 (1997)).
Looking first at Rusnak’s scope argument, we conclude
the district court committed error that was plain by allowing
the Government’s questions. Rusnak did not ask Stephanie
about friends visiting their home during direct examination;
thus, this topic was not “in dispute.” United States v. Green,
648 F.2d 587, 595 (9th Cir. 1981). The Government argues
Rusnak’s opening statement and statements outside the
presence of the jury put the subject in dispute, but “[a]n
opening statement . . . cannot operate to place an issue in
controversy.” Id. And statements made outside the presence
of the finder of fact are no different. The Government’s
questions on cross-examination were therefore outside the
20 UNITED STATES V. RUSNAK
scope of the direct examination, and the district court’s
decision to allow them was error that was plain.
Rusnak’s hearsay argument has merit for similar
reasons. The Government’s questions introduced
Stephanie’s out-of-court statements to FBI Agents for their
truth, violating the rule against hearsay. See Fed. R. Evid.
801(c), 802. Attorneys may not introduce hearsay
statements “under the guise of cross-examin[ation].” United
States v. Sine, 493 F.3d 1021, 1031 (9th Cir. 2007) (citation
omitted). Nor were the statements properly offered for the
non-hearsay purpose of impeaching Rusnak’s third-party
culpability defense. At the time the hearsay statements were
offered, Rusnak had not introduced—his opening statement
notwithstanding—evidence suggesting that the child
pornography was accessed by visitors to his home. Thus,
there was nothing to impeach. Cf. Green, 648 F.2d at 595.
The district court committed error that was plain by allowing
Stephanie’s statements to the FBI Agents to come in under
the guise of impeachment.
Our inquiry does not end here, however, because we
conclude that the district court’s errors did not affect
Rusnak’s substantial rights. For an error to affect a
defendant’s substantial rights, the “error must have
substantial and injurious effect or influence in determining
the . . . verdict.” United States v. Dominguez Benitez,
542 U.S. 74, 81 (2004) (alteration in original) (internal
quotation marks and citation omitted). The defendant must
show there is “a reasonable probability that, but for the error
claimed, the result of the proceeding would have been
different.” Id. at 82 (alteration adopted) (citation omitted).
A “reasonable probability” is “less than a certainty, or
even a likelihood,” United States v. Tapia, 665 F.3d 1059,
1061 (9th Cir. 2011), and is a standard “a bit lower but not a
UNITED STATES V. RUSNAK 21
lot lower” than more-probable-than-not, Mann v. Ryan,
828 F.3d 1143, 1155 (9th Cir. 2016) (applying the standard
to ineffective assistance of counsel). Rusnak does not meet
this relatively low burden. The district court allowed Rusnak
to redirect Stephanie to clarify her statements to the FBI
Agents. And Rusnak, through his own testimony, fully
presented his theory of the case—namely, that Chamberlain
or one of the other people who frequently visited his home
was responsible for accessing, downloading, and
distributing the child pornography. The fact that Stephanie
was precluded from giving a fulsome description of why she
told the FBI Agents that no one else stayed at the house did
not meaningfully prejudice Rusnak. As Rusnak himself told
the district court, Stephanie’s unabridged testimony would
have merely “corroborate[d]” Rusnak’s claim that there
were “a lot of people at the house.” See United States v.
Gomez, 846 F.2d 557, 559 (9th Cir. 1988) (explaining that a
district court “has considerable discretion to limit cross
examination in order to prevent delay or avoid cumulative
evidence”).
Setting Stephanie’s testimony to the side, the
Government presented a strong case showing that Rusnak,
rather than a third party, was responsible for accessing,
possessing, and distributing the child pornography. Cf.
United States v. Gonzalez-Flores, 418 F.3d 1093, 1102 (9th
Cir. 2005) (holding the admission of unfairly prejudicial
evidence was harmless error considering the strong case
presented by the Government). Rusnak admitted that he
personally downloaded CCleaner, software frequently used
to hide evidence of child pornography. Evidence of child
pornography was found on several computers owned by
Rusnak, some in files located on a directory under his name.
During the investigation, Rusnak repeatedly asserted he did
not know how the child pornography ended up on his
22 UNITED STATES V. RUSNAK
computers. Only when he got to trial did Rusnak assert that
someone else was responsible for the child pornography.
Overall, Rusnak has not shown a reasonable probability that
“but for [the hearsay and scope of examination errors], the
result of the proceeding would have been different.”
Dominguez Benitez, 542 U.S. at 82 (citation omitted).
iii
Rusnak also claims that the Government’s questions,
combined with the limited redirect permitted by the district
court, violated his Confrontation Clause right to confront
Stephanie about her statements to the FBI Agents. Because
Rusnak’s claim is for constitutional error, the Government
bears the burden of proving that the asserted error “was
harmless beyond a reasonable doubt.” Chapman v.
California, 386 U.S. 18, 24 (1967); United States v. Brooks,
772 F.3d 1161, 1171 (9th Cir. 2014). We conclude that no
error occurred, thus ending the inquiry.
A violation of the Confrontation Clause occurs where a
declarant’s out-of-court testimonial statements are
introduced and the defendant is denied the opportunity to
expose the declarant’s testimonial statement to the “crucible
of” examination. Crawford v. Washington, 541 U.S. 36, 61
(2004). Denying defendants the opportunity to redirect a
witness regarding an improper testimonial statement
introduced during cross-examination offends the
Confrontation Clause. Cf. United States v. Baker, 10 F.3d
1374, 1404 (9th Cir. 1993) (“[W]here [a] new matter is
elicited on redirect examination . . . denial of recross as to
that new matter violates the Confrontation Clause.”),
overruled on other grounds, United States v. Nordby,
225 F.3d 1053, 1059 (9th Cir. 2000).
UNITED STATES V. RUSNAK 23
We begin by dispensing with the Government’s
argument that because Rusnak called Stephanie as a witness,
her testimony necessarily could not offend the Confrontation
Clause. The Government does not point to any case barring
the application of Crawford and its progeny to witnesses
called by defendants. Crawford repeatedly discusses
“[t]estimonial statements of witnesses,” 541 U.S. at 59,
without drawing the distinction the Government seeks.
Accordingly, we reject the Government’s argument, at least
in situations where, as here, the defendant’s witness is
improperly cross-examined using questions incorporating
out-of-court testimonial statements undermining the
defendant’s case. Cf. Baker, 10 F.3d at 1404.
We reject Rusnak’s Confrontation Clause claim,
however, for an independent reason: Rusnak was afforded
the opportunity, albeit in a limited fashion, to redirect
Stephanie. The cases upon which Rusnak relies for his
Confrontation Clause challenge—United States v. Vargas,
933 F.2d 701, 705–06 (9th Cir. 1991), United States v.
Wilmore, 381 F.3d 868, 871–73 (9th Cir. 2004), and Baker,
10 F.3d at 1404–06—are distinguishable because each
involved the complete preclusion of questioning that should
have been allowed as within the proper scope of
examination. Here, by contrast, the Government’s questions
opened a narrow door: what Stephanie meant when she told
the FBI Agents that no one “stayed in the house.” The
district court allowed Rusnak to redirect on that limited
subject, at which point Stephanie clarified that when she
used the word “stayed” she meant “[n]obody else lived at the
house.” The redirect permitted by the district court satisfied
Rusnak’s Confrontation Clause right.
24 UNITED STATES V. RUSNAK
C
Lastly, Rusnak argues the district court erred in denying
his motion for a new trial because there was prosecutorial
misconduct. During its rebuttal summation, the Government
held up an exhibit showing the location of the desktop
computer on October 2, 2014—the day of the FBI raid—and
stated that Rusnak’s friend “looked at child pornography, did
whatever it is he was going to do while he was looking at the
child pornography right here next to this crib.” Rusnak
objected, arguing that (1) the evidence only showed that the
file on the desktop computer was “last modified” on August
30, 2013, and (2) there was no evidence the child
pornography was accessed after December 2013, when the
Rusnaks moved into the home in the photograph. Because
the Government conceded it could not point to any evidence
that the child pornography was accessed at some point after
December 2013, the district court ordered the Government
to “move on from that point” and issued the following
curative instruction to the jury:
I do want to remind the jurors, and you’ll hear
it again in the instructions, that the lawyers’
statements aren’t evidence. You’ll be the one
to determine what the evidence is based on
your recollection of that evidence, and your
recollection controls.
When a defendant objects to a prosecutor’s conduct
during trial, as Rusnak did here, we review for harmless
error. United States v. Alcantara-Castillo, 788 F.3d 1186,
1190 (9th Cir. 2015). Reversal is warranted “only if it
appears more probable than not that prosecutorial
misconduct materially affected the fairness of the trial.” Id.(citation omitted).
UNITED STATES V. RUSNAK 25
We reject Rusnak’s claim because the Government’s
summation, while toeing the line, was ultimately, as the
district court held, a “fair comment on the state of the
evidence.” The desktop computer containing the image was
located next to the child’s crib in the exhibit. Though the
Government properly conceded that the metadata did not
reveal whether the file had been accessed in the years in
which the desktop computer was next to the child’s crib, its
possible remaining presence on the computer after the
Rusnaks moved into the home in December 2013 is a fair
basis upon which the Government could argue that access
occurred. See Schulz v. Pa. R.R. Co., 350 U.S. 523, 526
(1956) (emphasis added and footnote omitted) (“Fact finding
does not require mathematical certainty. Jurors are supposed
to reach their conclusions on the basis of common sense,
common understanding and fair beliefs, grounded on
evidence consisting of direct statements by witnesses or
proof of circumstances from which inferences can fairly be
drawn.”).
Furthermore, the district court immediately cabined any
unfair prejudice by instructing the Government to move on
and issuing a curative instruction that the jurors’ memory
controlled. At the same time, the district court reiterated the
instruction that lawyers’ statements are not evidence and
reminded jurors that they “[wi]ll be the one[s] to determine
what the evidence is.” The curative oral instruction,
repeated in the written instruction, makes any error harmless.
See United States v. Lopez-Alvarez, 970 F.2d 583, 598 (9th
Cir. 1992) (holding that an oral admonitition that “the
lawyers’ statements are not evidence” was sufficient to
neutralize any predjuce); Jules Jordan Video, Inc. v. 144942
Canada Inc., 617 F.3d 1146, 1159 (9th Cir. 2010) (“There is
a strong presumption that juries follow curative
instructions.”). The timely cautions to the jury were
26 UNITED STATES V. RUSNAK
sufficient. Cf. United States v. Kerr, 981 F.2d 1050, 1053–
54 (9th Cir. 1992) (holding that an instruction that the jurors
“are the sole judges of the credibility of the witnesses” was
insufficient only because the prosecutor created a “crisis
situation” by “portraying the government as the guarantor of
the testimony’s truthfulness”). 2
D
We now turn to Rusnak’s claims regarding the
Conditions of Supervised Release, beginning with his claim
that the district court’s decision to impose a life term of
supervised release was procedurally improper. Rusnak
makes two arguments supporting this claim. First, he argues
the district court failed to adequately explain why it varied
downward with respect to the term of imprisonment imposed
but did not do so for the term of supervised release. Second,
he claims the only reason for the disparity between his term
of imprisonment and his supervised release term is that the
district court inappropriately considered his decision to
maintain his innocence. Because the presentence report
recommended a life term of supervised release and Rusnak
urged the district court to adopt the “fair [and] accurate
report,” we review Rusnak’s claim for plain error. United
States v. Sandoval-Orellana, 714 F.3d 1174, 1180 (9th Cir.
2013).
Both of Rusnak’s arguments prove too much. “A within-
Guidelines sentence ordinarily needs little explanation
2
For the foregoing reasons, we reject Rusnak’s claim that
cumulative error requires a new trial. As discussed, the only errors
committed by the district court related to its decision to allow
inappropriate cross-examination questioning of Stephanie, incorporating
her hearsay statements to FBI Agents. That error did not affect Rusnak’s
substantial rights.
UNITED STATES V. RUSNAK 27
unless a party has requested a specific departure . . . .”
United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008).
Here, Rusnak asked the district court to impose the lifetime
term of supervised release recommended by the PSR. And
Rusnak does not point to any case law holding that a district
court plainly errs when it fails to exhaustively explain its
decision to impose a shorter term of imprisonment followed
by a longer term of supervised release. Furthermore, the
district court fully considered the 18 U.S.C. § 3553(a)
factors in determining the sentence. The district court’s
recitation of the § 3553(a) factors provided a number of
reasons for the lifetime term of supervised release other than
Rusnak’s decision to maintain his innocence including, for
example, the fact that he declined to answer some of the
questions posed to him as part of the psychosexual
evaluation. Overall, the district court did not err, let alone
plainly err, in imposing a lifetime term of supervised release.
As to the substance of the Special Conditions, the
Government concedes that remand is required to conform
the written judgment to the oral pronouncement of Special
Conditions 2, 3, 4, 5, 6, 7, and 8. See United States v.
Hernandez, 795 F.3d 1159, 1169 (9th Cir. 2015). So
conformed, the Government also concedes Special
Conditions 5 and 8 must be vacated and remanded for the
district court to reconsider.
The sole remaining dispute concerns the substance of
Special Condition 7. The written judgment imposes the
following condition:
You shall submit your person, and any
property, house, residence, vehicle, papers,
computer, other electronic communications
or data storage devices or media, and effects
to search at any time, with or without a
28 UNITED STATES V. RUSNAK
warrant, by any law enforcement or probation
officer with reasonable suspicion concerning
a violation of a condition of supervised
release or unlawful conduct, and by any
probation officer in the lawful discharge of
the officer’s supervision functions. You shall
consent to and cooperate with the seizure and
removal of any hardware and/or data storage
media for further analysis by law
enforcement or the probation officer with
reasonable suspicion concerning a violation
of a condition of supervision or unlawful
conduct. You shall warn any other residents
that the premises may be subject to searches
pursuant to this condition.
Once Special Condition 7 is conformed to the oral
pronouncement, however, it requires Rusnak “to submit
your person and property to a search by your probation
officer.” Rusnak argues that the conformed version of
Special Condition 7 “lacks the necessary reasonable
suspicion requirement.” But the Supreme Court in Samson
v. California, 547 U.S. 843, 852–55, 857 (2006), held that a
suspicionless search of a parolee did not necessarily violate
the Fourth Amendment, and this court has upheld similar
searches of federal probationers, see United States v. King,
736 F.3d 805, 806 (9th Cir. 2013). The district court’s
decision to impose just such a requirement here was not an
abuse of discretion, let alone plain error. See United States
v. Betts, 511 F.3d 872, 876 (9th Cir. 2007). We note that the
district court may, pursuant to 18 U.S.C. § 3583(e)(2),
modify the condition imposed in its oral pronouncement to
the version of the condition contained in the written
judgment.
UNITED STATES V. RUSNAK 29
****
We affirm Rusnak’s criminal conviction. We remand
Special Conditions 2, 3, 4, 6, and 7 to be conformed with the
oral pronouncement. We vacate and remand Special
Conditions 5 and 8 for the district court to reconsider.
AFFIRMED IN PART, VACATED IN PART AND
REMANDED.