United States v. Carlos Cantizano ( 2023 )


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  •                            NOT FOR PUBLICATION                           FILED
    UNITED STATES COURT OF APPEALS                        MAY 8 2023
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                       No.    19-10373
    Plaintiff-Appellee,             D.C. No.
    4:14-cr-02097-JAS-JR-1
    v.
    CARLOS CANTIZANO,                               MEMORANDUM*
    Defendant-Appellant.
    Appeal from the United States District Court
    for the District of Arizona
    James Alan Soto, District Judge, Presiding
    Submitted April 19, 2023**
    Phoenix, Arizona
    Before: TALLMAN, OWENS, and BADE, Circuit Judges.
    Carlos Cantizano appeals from his jury conviction and sentence for one
    count of distribution of child pornography (Count 1) and one count of possession
    of child pornography (Count 2). We have jurisdiction pursuant to 
    28 U.S.C. § 1291
    . As the parties are familiar with the facts, we do not recount them here.
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    We affirm.
    1.     Rule 404(b) Violation. Cantizano argues that the district court erred
    by admitting Exhibit 83—a list of child pornography files found on Cantizano’s
    seized laptop—because the government did not provide notice as required by
    Federal Rule of Evidence 404(b). We review de novo whether evidence is “other
    act” evidence under Rule 404(b). United States v. Carpenter, 
    923 F.3d 1172
    ,
    1180-81 (9th Cir. 2019). “Evidence of any other crime, wrong, or act is not
    admissible to prove a person’s character in order to show that on a particular
    occasion the person acted in accordance with the character.” Fed. R. Evid. 404(b).
    However, we have “exempted other act evidence from the requirements of Rule
    404 where it is ‘inextricably intertwined’ with the underlying offense.” Carpenter,
    923 F.3d at 1181 (citation omitted).
    Here, Exhibit 83 was inextricably intertwined with Cantizano’s Count 2
    possession charge and therefore exempt from Rule 404(b). Although the
    indictment listed only six child pornography files, the remaining files listed on
    Exhibit 83 became “other acts simply because [Cantizano was] indicted for less
    than all of his actions.” United States v. Anderson, 
    741 F.3d 938
    , 949 (9th Cir.
    2013) (citation omitted). Accordingly, the district court properly admitted Exhibit
    83.
    2.     Prosecutorial Misstatements. For the first time on appeal,
    2
    Cantizano argues that the prosecution misstated evidence in its closing arguments.
    We review whether any prosecutorial misconduct occurred de novo and, if the
    defendant failed to object, the effect of any misconduct for plain error. United
    States v. Flores, 
    802 F.3d 1028
    , 1034 (9th Cir. 2015).
    “A prosecuting attorney may not misstate or manipulate the evidence at
    trial.” United States v. Preston, 
    873 F.3d 829
    , 844 (9th Cir. 2017). At the same
    time, prosecutors “are free in argument to suggest that the jury draw reasonable
    inferences from the evidence presented at trial.” Flores, 
    802 F.3d at 1035
    .
    Because Cantizano did not raise these objections at trial, he bears the burden of
    showing “(1) there was error; (2) it was plain; (3) it affected [his] substantial
    rights; and (4) viewed in the context of the entire trial, the impropriety seriously
    affected the fairness, integrity, or public reputation of judicial proceedings.”
    United States v. Garcia-Morales, 
    942 F.3d 474
    , 475 (9th Cir. 2019) (internal
    quotation marks and citation omitted).
    First, Cantizano argues that the prosecutor misrepresented Exhibit 83 by
    stating that the document showed “the dates in which those files were created on
    this computer.” But even if the prosecution technically mischaracterized the
    agent’s testimony on how to interpret a “created” date for a computer file,
    Cantizano provides no specific arguments that this error “affected [his] substantial
    rights” and that “the impropriety seriously affected the fairness, integrity, or public
    3
    reputation of judicial proceedings.” 
    Id.
     Thus, any mischaracterization did not
    amount to plain error.
    Second, Cantizano argues that the prosecutor mischaracterized the evidence
    by stating that “hundreds of . . . videos dating all the way back to 2011” were
    “downloaded and accessed for over a 15-month period” and that Cantizano
    accessed child pornography files on certain dates. These were not misstatements.
    For example, Exhibit 83 listed about 230 files, the first of which was “created” on
    May 3, 2011. Thus, the jury could reasonably infer that there were “hundreds of . .
    . videos dating all the way back to 2011.” The record also shows that the files
    were last written, or last modified, between May 2011 and August 2012. As the
    government argues, it was therefore “reasonable to infer that if a file was modified,
    it was accessed” during that period. Although Cantizano argues that the
    prosecution erroneously claimed that the dates came from Exhibit 50, or the “jump
    list,” any error is not plainly evident given the ambiguity of the prosecutor’s
    statement.
    3.     Discovery Violation. Cantizano argues that the prosecution violated
    its discovery obligations with its last-minute disclosure of Exhibit 50. We
    determine whether the government violated its discovery obligations de novo.
    United States v. Obagi, 
    965 F.3d 993
    , 997 (9th Cir. 2020). “To reverse a
    conviction for a discovery violation, we must find not only that the district court
    4
    abused its discretion, but that the error resulted in prejudice to substantial rights.”
    United States v. Amlani, 
    111 F.3d 705
    , 712 (9th Cir. 1997) (citation omitted).
    Assuming, without deciding, that the government violated its discovery
    obligations, Cantizano cannot show that the late disclosure of Exhibit 50
    prejudiced a substantial right. Exhibit 50’s significance was limited because the
    government only used it to refresh a witness’s recollection. More importantly, the
    government disclosed the data on the laptop from which Exhibit 50 was created.
    The disclosure included information that one of the files had been accessed on
    August 1, 2012—a fact that Cantizano argues “completely exonerate[s]” him
    because he was “not in Arizona and had no access to the laptop” on that date.
    Because Cantizano had access to this purportedly significant piece of evidence
    well before trial, there was no discovery violation that prejudiced his substantial
    rights.
    4.    Hearsay and Confrontation Clause Violation. Cantizano also
    argues that admission of an agent’s testimony regarding his conversation with a
    non-testifying witness violated Rule 801(c)’s prohibition against hearsay
    statements and the Confrontation Clause. We review the admission of evidence
    under a hearsay exception for abuse of discretion and alleged violations of the
    Confrontation Clause raised for the first time on appeal, as here, for plain error.
    United States v. Johnson, 
    875 F.3d 1265
    , 1278 (9th Cir. 2017).
    5
    Here, the agent’s testimony was not hearsay because it was admitted for a
    legitimate non-hearsay purpose: to show the statement’s effect on the agents who
    were conducting the search and to explain why they focused their investigation on
    Cantizano. See United States v. Audette, 
    923 F.3d 1227
    , 1238 (9th Cir. 2019)
    (holding that a statement was not offered for its truth because it showed why the
    government focused on the defendant as a suspect); Fed. R. Evid. 801(c). And
    because the non-testifying witness’s statement did not constitute testimonial
    hearsay, there was no Confrontation Clause violation. See Johnson, 
    875 F.3d at 1278
    .
    Even if the non-testifying witness’s statements were inadmissible, any error
    was harmless. See United States v. Shayota, 
    934 F.3d 1049
    , 1052 (9th Cir. 2019).
    Contrary to Cantizano’s assertion, the admitted testimony did not resolve “the
    contested issue of which computer actually belonged to [him], or whether another
    person was the primary user.” At trial, the prosecution presented significant
    evidence that the laptop belonged to Cantizano. See Johnson, 
    875 F.3d at 1279
    (finding harmless error in the court’s admission of a non-testifying witness’s
    statement that a gun belonged to the defendant because additional evidence linked
    the defendant to the gun). Nor did the government rely on the non-testifying
    witness’s statement at closing argument. See 
    id.
     (noting that, in another case, “the
    prosecution’s reliance on out-of-court statements during closing arguments
    6
    indicated that the statements were intended for a hearsay purpose”). We therefore
    find that any error was harmless.
    5.     Jury Instructions and Constructive Amendment. Cantizano
    contends that the district court constructively amended Count 1 of his indictment.
    The jury instructions used at trial asked the jurors to find, as part of the
    “distribution” element, that “the defendant knowingly transported or shipped a
    visual depiction in interstate commerce by any means, including a computer.” As
    the government concedes, the first element should have asked the jurors to find
    that “the defendant knowingly distributed a visual depiction that had been shipped
    or transported in interstate commerce by any means, including a computer.”
    As a threshold matter, the parties dispute whether we should interpret this
    argument as a claim of constructive amendment or as a challenge to the jury
    instructions. But we need not resolve this issue because Cantizano failed to object
    in the district court, and he cannot show plain error regardless of how the claim is
    framed. See United States v. Mickey, 
    897 F.3d 1173
    , 1183 (9th Cir. 2018); United
    States v. Conti, 
    804 F.3d 977
    , 981 (9th Cir. 2015).
    Under plain error review, Cantizano cannot show that the error “seriously
    affected the fairness, integrity, or public reputation of the judicial proceedings.”
    Mickey, 897 F.3d at 1183. The evidence presented at Cantizano’s trial proved the
    “distribution” element overwhelmingly and beyond a reasonable doubt: (1)
    7
    Cantizano maintained child pornography in a shared folder; (2) he knew that doing
    so would allow others to download the files, and (3) federal agents were able to
    download four files depicting child pornography from Cantizano’s computer. See
    Johnson v. United States, 
    520 U.S. 461
    , 469-70 (1997) (holding that, although the
    jury instructions omitted an element, the defendant could not show plain error
    because the evidence supporting that element was overwhelming); United States v.
    Budziak, 
    697 F.3d 1105
    , 1109 (9th Cir. 2012) (outlining the elements for a
    distribution conviction under 
    18 U.S.C. § 2252
    (a)(2)).
    6.     Denial of Post-Trial Motions. Cantizano further contends that the
    district court abused its discretion by denying his pro se motion for a new trial,
    motion for reconsideration, and motion for a Franks hearing. We review the denial
    of motions for a new trial and reconsideration for an abuse of discretion and the
    denial of a Franks hearing de novo. United States v. King, 
    660 F.3d 1071
    , 1076
    (9th Cir. 2011) (motion for a new trial); United States v. Tapia-Marquez, 
    361 F.3d 535
    , 537 (9th Cir. 2004) (motion for reconsideration); United States v. Norris, 
    942 F.3d 902
    , 907 (9th Cir. 2019) (Franks hearing).
    The district court did not abuse its discretion by denying Cantizano’s
    motions for a new trial and reconsideration. Cantizano’s motions, which focused
    primarily on the government’s last-minute disclosure of Exhibit 50, failed to meet
    his burden of showing that this was an “exceptional case[] in which the evidence
    8
    preponderates heavily against the verdict.” United States v. Rush, 
    749 F.2d 1369
    ,
    1371 (9th Cir. 1984) (citation omitted). As already discussed, any prejudicial
    effect of Exhibit 50 was minimal given that it was used only to refresh an agent’s
    recollection, and the government disclosed all the data on Exhibit 50 well before
    trial.
    Nor did the district court err by denying Cantizano’s post-trial motion for a
    Franks hearing.1 Although the Franks motion relied on a few different
    inconsistencies, it focused primarily on purported inconsistencies between the
    search warrant affidavit and Exhibit 83. However, the record shows that these two
    documents are not actually inconsistent. The remaining inconsistencies rely on
    speculation regarding the method by which investigators previously flagged
    Cantizano for attempting to obtain child pornography files and an error regarding
    the name of a file-sharing software. Relying on these two bases alone, Cantizano
    failed to make a “substantial preliminary showing that . . . the affiant officer
    intentionally or recklessly made false or misleading statements or omissions in
    support of the warrant.” United States v. Nault, 
    41 F.4th 1073
    , 1081 (9th Cir.
    2022) (internal quotation marks and citation omitted).
    1
    Because the government does not substantially challenge Cantizano’s post-trial
    Franks motion for its untimeliness, see Fed. R. Crim. P. 12(b)(3), we assume,
    without deciding, that he made the requisite showing of “good cause” to bring his
    motion post-trial and proceed to the merits. Fed. R. Crim. P. 12(c)(3).
    9
    7.     Restitution Award. Cantizano contends that the district court clearly
    erred by awarding restitution to “Tara” because, in doing so, it relied on two pieces
    of unreliable hearsay: (1) an unsworn National Center for Missing and Exploited
    Children (“NCMEC”) document, and (2) an agent’s testimony at the sentencing
    hearing. We review the factual findings supporting a restitution order for clear
    error. United States v. Gagarin, 
    950 F.3d 596
    , 607 (9th Cir. 2020).
    “Hearsay is generally admissible in sentencing hearings, as neither the
    Confrontation Clause nor the Federal Rules of Evidence apply to such hearings.”
    United States v. Franklin, 
    18 F.4th 1105
    , 1114 (9th Cir. 2021). However, “due
    process requires that some minimal indicia of reliability accompany a hearsay
    statement introduced at sentencing.” 
    Id.
     (cleaned up).
    Contrary to Cantizano’s argument, the district court did not clearly err by
    finding that the NCMEC report and the agent’s testimony had “some minimal
    indicia of reliability.” 
    Id.
     The NCMEC report reliably described the process by
    which it identified “Tara” as a victim. The agent also testified that he had over
    fifteen years of experience working on child pornography cases and was able to
    describe NCMEC’s process for identifying victims. He also personally confirmed,
    prior to the sentencing hearing, that Cantizano’s laptop contained the two “Tara”
    files listed in the NCMEC report. Because Cantizano fails to show that the
    evidence was false or unreliable, we hold that the district court did not err in
    10
    awarding restitution to “Tara.”
    8.      Conditions of Supervised Release. Cantizano also challenges ten
    supervised release conditions. We review supervised release conditions to which a
    defendant objected at sentencing (Special Conditions 6, 9, 12, 14, and 15) for
    abuse of discretion, and those challenged for the first time on appeal (Special
    Condition 5 and Standard Conditions 4, 5, 9, and 12) for plain error. United States
    v. Gibson, 
    998 F.3d 415
    , 418 (9th Cir. 2021); United States v. Magdaleno, 
    43 F.4th 1215
    , 1221 (9th Cir. 2022). We review whether a supervised release condition
    violates the Constitution de novo. United States v. Ochoa, 
    932 F.3d 866
    , 868 (9th
    Cir. 2019).
    According to the written judgment, Special Condition 6 prohibits Cantizano
    from possessing, viewing, or using “material depicting sexually explicitly conduct
    as defined in 18 U.S.C. [§] 2256(2) and materials depicting sexually explicit
    conduct involving adults, defined as explicitly sexually stimulating depictions of
    adult sexual conduct that are deemed inappropriate” by the probation officer. But
    based on the district court’s oral pronouncement of the condition at the initial
    sentencing hearing and its reference to our decision in United States v. Gnirke, 
    775 F.3d 1155
    , 1166 (9th Cir. 2015), at the final sentencing hearing, Special Condition
    6 should read to prohibit “material[s] depicting sexually explicit conduct involving
    children,” as defined in 
    18 U.S.C. § 2256
    (2), and “materials depicting sexually
    11
    explicit conduct involving adults.” Accordingly, we construe the condition to
    include the omitted “involving children” language consistent with the special
    condition in Gnirke. See 
    id.
     (narrowly construing a special condition on appeal to
    bring it “in line with what the district court clearly intended”). Under this
    construction, Special Condition 6 is permissible. See 
    id.
     Although Cantizano cites
    United States v. Cope to argue that the condition impermissibly proscribes
    possession of materials necessary for a collateral attack or court-mandated
    treatment, Cope is inapposite because it involved a condition that prohibited
    materials “depicting and/or describing child pornography.” 
    527 F.3d 944
    , 957 (9th
    Cir. 2008) (emphasis added). By contrast, nothing in Special Condition 6 prohibits
    Cantizano from possessing the types of materials discussed in Cope.
    Notwithstanding the clerical omission in Special Condition 6, the district
    court did not otherwise abuse its discretion by imposing the conditions to which
    Cantizano objected. Cantizano’s procedural arguments fail because, even
    assuming that the conditions implicate a “particularly significant liberty interest,”
    the district court provided adequate justification by explaining its reasoning at
    sentencing and by adopting the Presentence Investigation Report. Gnirke, 
    775 F.3d at 1160
    .
    12
    Cantizano’s substantive arguments as to Special Conditions 9, 12, 14, and 15
    also fail.2 Based on the underlying crime and specific facts of this case, the
    conditions do not involve “a greater deprivation on his liberty than required to
    achieve deterrence, public protection, and rehabilitation.” Gibson, 998 F.3d at 420
    (citation omitted). The conditions are also a limited ban and permit the prohibited
    conduct with prior written permission, thereby suggesting they are “no more
    restrictive than necessary.” United States v. Wells, 
    29 F.4th 580
    , 592 (9th Cir.
    2022). Furthermore, we have upheld analogous conditions against similar
    substantive challenges in child pornography cases. See United States v. Stoterau,
    
    524 F.3d 988
    , 1009-10 (9th Cir. 2008) (affirming a condition similar to Special
    Condition 9); United States v. Riley, 
    576 F.3d 1046
    , 1049 n.3 (9th Cir. 2009)
    (finding conditions similar to Special Conditions 12 and 14 valid); United States v.
    Blinkinsop, 
    606 F.3d 1110
    , 1122-23 (9th Cir. 2010) (upholding a similar condition
    to Special Condition 15, albeit under plain error review). And contrary to
    Canitzano’s contention, supervised release conditions “are not required to be
    related to the offense of conviction; instead, they can anticipate crimes that a
    defendant convicted of a child-pornography crime might commit in the future.”
    Blinkinsop, 
    606 F.3d at 1122-23
     (internal quotation marks and citation omitted).
    2
    Cantizano’s as-applied challenge to Special Condition 12 is moot because his
    nephews are no longer minors.
    13
    As to the unobjected conditions, the district court did not plainly err.
    Cantizano’s challenge to Special Condition 5 fails because we have upheld even
    more restrictive conditions against similar challenges in child pornography and
    exploitation cases. See United States v. Rearden, 
    349 F.3d 608
    , 620-21 (9th Cir.
    2003) (upholding a near-total Internet ban under plain error review). Nor does he
    cite controlling authority in support of his contention that Special Condition 5 is
    unconstitutionally vague and overbroad. See Gnirke, 
    775 F.3d at 1164
     (“An error
    cannot be plain where there is no controlling authority on point and where the most
    closely analogous precedent leads to conflicting results.” (internal quotation marks
    and citation omitted)). Because he also does not provide controlling case law in
    support of his challenges to Standard Conditions 4, 5, 9, and 12, we similarly reject
    those. See id.
    9.     Napue Challenge. Finally, Cantizano argues that the government
    violated his Due Process rights by presenting false statements in violation of
    Napue v. Illinois, 
    360 U.S. 264
    , 269 (1959). We review Napue claims de novo.
    Dow v. Virga, 
    729 F.3d 1041
    , 1049 (9th Cir. 2013). To show a Napue violation, a
    defendant must demonstrate that (1) “the testimony (or evidence) was actually
    false,” (2) the government “knew or should have known that the testimony was
    actually false,” and (3) “the false testimony was material.” Hayes v. Brown, 
    399 F.3d 972
    , 984 (9th Cir. 2005) (citation omitted).
    14
    Cantizano’s claims fail under the first prong. Contrary to his claim that
    Exhibit 44 was “fabricated,” the government properly characterized Exhibit 44 as a
    recreation of Cantizano’s file-sharing program. The fact that Exhibit 44 was not an
    exact replica of the actual file-sharing program fails to show that the testimony or
    evidence was fabricated, and the remainder of Cantizano’s arguments regarding
    Exhibit 44 are highly speculative. Cantizano’s contention that the agent’s
    testimony was false based on some minor inconsistencies is equally unconvincing.
    Although the cited inconsistencies could raise questions about the agent’s
    credibility, they do not show that he fabricated his testimony or that the
    government knew or should have known of its purported falsity. See United States
    v. Houston, 
    648 F.3d 806
    , 814 (9th Cir. 2011). Because Cantizano cannot show
    that the government presented false statements, his Napue claims fail.
    AFFIRMED.
    15