United States v. Hao Sun

FILED
United States Court of Appeals
Tenth Circuit
November 25, 2009
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
__________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 09-8002
v. (D.Ct. No. 2:07-CR-00262-CAB-1)
(D. Wyo.)
HAO SUN,
Defendant-Appellant.
______________________________
ORDER AND JUDGMENT *
Before KELLY, BRORBY, and MURPHY, Circuit Judges.
A jury convicted Appellant Hao Sun of possession of child pornography, in
violation of 18 U.S.C. § 2252A(a)(5)(A), and he received a sentence of “time
served plus three days,” after which he was to be deported. On appeal, Mr. Sun
contends the district court erred in denying his motion to admit hearsay testimony
pursuant to Federal Rules of Evidence 804(a)(5), 804(b)(3), and 807. We exercise
jurisdiction pursuant to 28 U.S.C. § 1291 and affirm the district court’s denial of
admission of Mr. Sun’s hearsay evidence and affirm his conviction.
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
I. Factual and Procedural Background
On June 18, 2007, United States Park Rangers Eric Amundson and Shane
Lawson investigated a claim by Edward Houston, a government employee living at
the Bitterroot Dormitory located in Yellowstone National Park, Wyoming. 1 Mr.
1
In both appeal briefs, the parties provide lengthy statements of fact
without any reference or citation to the evidence provided at trial or the record on
appeal. Instead, they rely exclusively on the “Prosecutors Statement” filed with
the district court and provided to this court through an attachment to the
government’s brief. It appears the information contained in the Prosecutor’s
Statement was garnered from evidence provided at Mr. Sun’s five-day trial and is
contained in the 724-page trial and hearing transcript provided on appeal. We
note both the Federal Rules of Appellate Procedure and our Tenth Circuit Rules
require the parties to cite to evidence in the record in support of their positions.
See generally Fed. R. App. P. 28(a)(9)(A), 28(e), 30(c)(2); 10 th Cir. R. 28.1(A),
(B). However, because both parties rely on the Prosecutor’s Statement as
accurately representing the evidence presented at trial, we, too, rely primarily on
that statement, declining to sift through the entirety of the lengthy transcript
submitted in the record on appeal, which is the responsibility of the parties in
providing record cites. See Phillips v. James, 422 F.3d 1075, 1081 (10 th Cir.
2005) (holding that, generally, in the absence of references to the record in a
party’s brief, this court will “not sift through the record to find support for” the
arguments made).
In addition, neither party consistently provides citations to other parts of
the record on which they rely or those portions of the opposing party’s brief to
which they refer in making their arguments. Again, we kindly remind counsel to
follow our rules of appellate procedure, which include proper citation to the
record and appellate documents on which they rely. See Fed. R. App. P.
28(a)(9)(A), 28(e); 10 th Cir. R. 28.1(A) and(B); 28.2(B).
Unlike counsel, we are not familiar with the record provided to us on
appeal. While none of these appellate “indiscretions” are dispositive to this
appeal, adherence to the Federal Rules of Appellate Procedure is intended to
assist us in best considering arguments on appeal and disposing of issues and
cases with judicial economy, rather than causing us to sift through an inordinately
large record, as provided here, containing multiple volumes of pleadings,
(continued...)
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Houston told them he found pornographic images of children on the computer he
borrowed from his roommate, Mr. Sun, a Chinese citizen and Hong Kong
university student who entered the country on June 4, 2007, and was employed at
Yellowstone National Park for the summer. Mr. Houston advised them the Toshiba
Portege laptop in his possession, and belonging to Mr. Sun, contained images of
young children photographed partially nude and committing sexual acts. He then
located and displayed for the rangers approximately twenty-five to thirty images of
young females, both partially and fully nude, on Mr. Sun’s computer, including
two images depicting one young girl approximately four- to six-years-old, with
fully-exposed genitalia and another young girl approximately six- to eight-years-
old involved in an oral sexual act. Mr. Houston then informed the rangers he
believed the computer contained approximately 300 images on the hard drive and
explained he found the images by clicking on an icon on the monitor.
The rangers then proceeded to Mr. Sun’s dorm room to conduct a field
interview with him. When Mr. Sun greeted the rangers at his door, he
immediately stated he was “not into children.” After receiving advisement of his
Miranda rights and stating he understood them, Mr. Sun agreed to answer
questions. At that time, he admitted the computer in question belonged to him but
1
(...continued)
transcripts, and exhibits, in order to find that portion of the record which supports
the parties’ contentions.
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denied ownership of the nude images of children. Instead, he stated he first
noticed the nude images on his computer at the end of May or in early June, but
he had “forgotten to delete them and didn’t know why.” When asked how he
stored the computer, he explained it sat out in his dormitory room and his door
was “always unlocked.” He then stated that “someone else” must have
downloaded the material onto his computer.
During his interview, Mr. Sun became more nervous and concerned about
possible charges being filed against him. He then asked if possessing
pornography was illegal in the United States. When he was told it generally was
not, but that possessing child pornography was illegal, he acted surprised and
asked if the rangers were referring to child pornography found on his computer.
When they verified they were, Mr. Sun again acted surprised and stated all of the
pornography he viewed on his computer was “legal product” and that while he
had downloaded nude adult images and videos from various web-sites, he could
not recall how many or their names. The rangers left, informing Mr. Sun he
would, most likely, be contacted again concerning their investigation. His
computer was seized at that time.
Thereafter, the government obtained a federal search warrant for Mr. Sun’s
computer and sent it to a forensics examiner, Special Agent Beth Shott, who
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conducted an examination of the computer. Ms. Shott later testified at Mr. Sun’s
trial. According to her findings, one-half of the images on his computer
contained pornography and one-quarter of those images contained child
pornography, which included approximately 800 sexually-explicit images of
children in various positions, including lascivious and graphic displays of genitals
and adult/child sexual conduct. These images, as well as the adult pornography
images, were contained in a single folder called “downloads,” and the child
pornography images appeared in a sub-folder named “UU,” which in Chinese
means “young young”; included in the “UU” sub-folder were nine sub-files
containing the 800 child pornography images. Ms. Shott found most of the
folders and sub-folders or sub-files on Mr. Sun’s computer were in English,
including the child pornography sub-files.
Ms. Shott’s investigation revealed someone placed both the child and adult
pornography images on the computer on May 26, 2007, prior to Mr. Sun’s arrival
in the United States on June 4, 2007. However, at least twenty of the sexually-
explicit images of children had file access dates in June 2007, including June 5, 9,
10, and 14, indicating someone viewed them during Mr. Sun’s employment at
Yellowstone National Park. Many of these access dates corresponded with the
same day someone accessed Mr. Sun’s school, family, and other photograph
folders and conducted internet surfing to various web-sites, including sites for
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Mr. Sun’s college and bank. In determining the access dates, Ms. Shott omitted
from consideration the dates Mr. Houston and the rangers accessed the computer
and the images viewed.
In addition to the images and folders described, Ms. Shott also recovered a
picture-viewing program on Mr. Sun’s computer which contained 2,000 indecent
images of children and which was placed on his computer on June 4, 2007. She
also determined that on June 3, 2007, someone used Mr. Sun’s computer to view
sex sites and downloaded the images onto the computer, including at least one
image of child pornography. The only history Ms. Shott was able to recover from
the computer was from May 20 to June 18, 2007; she stated this and the massive
downloading of numerous amounts of school and family photos in late May, as
well as other materials, including the adult and child pornography, were
consistent with someone reloading their computer after damage and repair. She
also stated someone catalogued the location of the child pornography material in
the same manner as all of the other folders, including those of Mr. Sun’s family
photographs and adult pornography. In her opinion, this, and the fact that
someone added to those files while the computer was in the United States,
indicated Mr. Sun knew of the existence of the child pornography on his
computer.
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Prior to trial, Mr. Sun filed a motion to admit hearsay statements of his
cousin and father for the purpose of showing his cousin possessed his computer
and placed the child pornography images on his computer. He also attached a
written statement from his cousin, Sun Liutao, who lives in China. In his
statement, his cousin admitted he downloaded “porn pictures” onto Mr. Sun’s
computer, but stated he was taking “the Fifth Amendment defense on the issue as
to whether [he] downloaded or review[ed] any child porn pictures.” 2 Sun Liutao
also stated he would “fully cooperate to testify truly on my recollections of what
happened to the best of my knowledge, though I will not get myself involved in
this case to avoid legal liabilities.”
Before ruling on Mr. Sun’s motion to admit hearsay evidence, the district
court ordered Mr. Sun to take depositions of Mr. Sun’s father, mother, and cousin,
who all live in China, advising “I think you have to prove that the [cousin] ...
refuses to cooperate, refuses to admit guilt or to testify” and “if we have those
matters before us, I’m going to grant the defendant’s motion to admit the hearsay
2
The English translation of the statement says he “copied some porn
pictures,” while the Chinese version of his statement, as interpreted by a
translator, says he “put some pornographic pictures” on the computer, both of
which are general admissions without specific reference to child pornography. In
addition, during oral argument, counsel for both parties indicated Sun Liutao said
in his statement he placed “adult entertainment” on Mr. Sun’s computer; however,
the record, including his statement and deposition, shows he only admitted to
“porn” or “pornographic pictures,” and did not use the words “adult
entertainment.”
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as a matter of justice.” As a result, the parties conducted video depositions of the
three individuals. However, during Sun Liutao’s video conference, he simply
agreed he wrote the statement attached to Mr. Sun’s motion and read at the
deposition and also attested to the truth of that statement, but he refused to
answer any further questions or subject himself to cross-examination regarding
his use of the computer and any pornography on it. Through an interpreter,
however, he did explain he did not write, speak, or understand any English.
Prior to trial, the district court took the matter of the hearsay admissions
under advisement pending its review of the depositions. At trial, during a
conference with counsel, the district court ruled on the matter, agreeing with the
government that Sun Liutao did not admit, either in his statement or deposition, to
placing “child” pornography on the computer, so both his statement and
deposition failed to met the hearsay exception under Federal Rule of Evidence
804(b)(3) as a statement against penal interest, which also requires a sufficient
guarantee of trustworthiness, as corroborated by other reliable evidence.
The district court also rejected Mr. Sun’s argument his parents’ video
conference testimony corroborated Sun Liutao’s testimony. Instead, it agreed
with the government that his parents’ testimony that Sun Liutao admitted
downloading child pornography was hearsay and did not meet a hearsay exception
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because it did not possess equivalent circumstantial guarantees of trustworthiness
under Federal Rule of Evidence 807 (formerly Rule 803(24)). It made this
decision based on the fact Mr. Sun’s parents are not citizens subject to the
jurisdiction of the district court and had a family bias in testifying for the purpose
of exonerating their son. In so ruling, it also rejected Mr. Sun’s argument that all
three witnesses’ testimony should be admitted as an exception to hearsay
evidence under Federal Rule of Evidence 807 because their statements were more
probative on the point for which they were offered than any other evidence which
he could procure through reasonable efforts and that the interests of justice would
best be served by their admission into evidence.
While the district court ordered their hearsay statements be redacted, it
allowed the jury to hear the remainder of Sun Liutao’s and Mr. Sun’s father’s
depositions. Those unredacted portions clearly indicated other people accessed
the computer before Mr. Sun took it to the United States, including his cousin,
Sun Liutao, who stated in his deposition, “I personally have used this computer”
but would not state when he used the computer. Mr. Sun’s father also testified
that he and his wife used the computer and that he loaned the computer to Sun
Liutao for four or five days in May 2007 after the computer had been repaired at a
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shop. 3
In addition to this information, Mr. Sun testified on his own behalf, stating:
(1) his college roommates, as well as other students, used his computer while he
was at college in Hong Kong, and most of the time they used it out of his
presence; (2) the computer hard drive was damaged in May 2007, causing him to
lose the information on it; (3) on May 10, 2007, he took the computer to a repair
shop which replaced the hard drive; (4) he obtained the computer from his parents
around May 29, 2007, prior to his departure for the United States on June 4; (5)
between May 29 and June 4, other students at his college had access to the
computer; (6) he brought the computer with him to the United States, but checked
it with his luggage and did not see it again until he arrived in Bozeman, Montana,
on June 4; (7) on the night of his arrival in the United States he allowed other
Chinese students to use his computer for the purpose of contacting their families;
(8) he did not use or require a password for access to his computer; and (9) he left
his computer in his Yellowstone dormitory room all day on June 9, 2007 – his
first day off from work. He also testified that, after his arrest, he learned his
cousin had borrowed the computer from his parents.
3
After the court required redaction of the hearsay statements in Mr. Sun’s
mother’s deposition, Mr. Sun’s counsel decided not to offer the unredacted
portion of her testimony to the jury.
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Although Mr. Sun testified he lost all the information on his hard drive
when his computer crashed, he acknowledged it contained photographs of family
and friends, as well as photographs of Yellowstone, in separate folders which he
explained must have been placed on his computer by family and friends. He also
denied setting up the folder tree containing those file folders. While Mr. Sun
admitted he accessed adult web-sites while he was in China and the United States,
he denied saving any pornographic photos of adults or children, including those
found on his computer, but he also stated he did not delete any site histories on
his computer pertaining to adult web-sites accessed. According to Mr. Sun, he
did not know child pornography existed on his computer until his interview with
the rangers on June 18, 2007.
At the conclusion of his trial, the jury convicted Mr. Sun of possession of
child pornography in violation of 18 U.S.C. § 2252A(a)(5)(A). A federal probation
officer prepared a presentence report in conjunction with the 2007 United States
Sentencing Guidelines, which resulted in a recommended, advisory guideline range
of eighty-seven to 108 months imprisonment. However, the district court granted
Mr. Sun a requested variance based, in part, on his personal history and
characteristics, and sentenced him to “time served plus three days,” after which he
was to be deported. At that time, Mr. Sun had been incarcerated for seventeen
months.
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II. Discussion
On appeal, Mr. Sun argues the district court erred in not allowing into
evidence the statement and deposition testimony of his cousin, Sun Liutao,
because he was unavailable for the trial and his statements constituted exceptions
to hearsay under Federal Rules of Evidence 804(a)(5), 804(b)(3), and 807.
Specifically, he contends: (1) it was impossible to procure his cousin’s
attendance at trial so his statements are admissible under Rule 804(a)(5); (2) his
cousin’s statements were against his own penal or pecuniary interest, so they are
admissible under Rule 804(b)(3); and (3) his cousin’s statements constituted a
material fact more probative on the point for which offered than any other
evidence he could procure through reasonable efforts, and their admission would
best serve the interests of justice under Rule 807. 4 In support of each contention,
Mr. Sun summarily claims the district court violated his due process rights
“guaranteed by the 10 th Amendment to the U.S. Constitution,” which we assume
he intended to mean a violation of his Fifth Amendment right to due process. He
4
In providing the legal standard for our review, Mr. Sun simply states that
“[q]uestions of fact are reviewed for clear error” and does not cite to any legal
authority in support thereof. We remind counsel an appellant’s brief is to contain,
“for each issue, a concise statement of the applicable standard of review,”
together with citations to the authorities on which the appellant relied. Fed. R.
App. P. 28(a)(9)(A) and (B). Similarly, Mr. Sun’s appellate brief does not follow
the required form for briefs. We remind counsel, for example, that the text of a
brief is to be double-spaced with no more than ten and one-half characters of
typeface per inch. See Fed. R. App. P. 32(a)(4), (a)(5)(B).
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also suggests he was prejudiced by the district court when it definitively ruled, in
the preliminary hearing on his motion, it would admit Sun Liutao’s testimony,
which he relied on when he spent resources to take the deposition of Sun Liutao
and prepared for trial. In response, the government argues in support of the
district court’s denial of Sun Liutao’s hearsay admissions and also points out Mr.
Sun raises his due process claims for the first time on appeal.
A. Standards of Review
As the government contends, Mr. Sun did not raise his Fifth Amendment
constitutional due process objections at trial, instead relying entirely on the
Federal Rules of Evidence. Due process claims raised for the first time on appeal
are reviewed for plain error. See United States v. Oldbear, 568 F.3d 814, 820
(10 th Cir.), cert. denied, 130 S. Ct. 263 (2009). However, because Mr. Sun’s brief
on appeal fails to address the plain error standard, he has waived his
constitutional arguments. See id. But, even if we ignore his waiver of this issue,
Mr. Sun’s constitutional claims fail, as do his claims regarding the applicable
Federal Rules of Evidence, for the reasons discussed hereafter.
To begin, we have said that “an evidentiary ruling infringes a defendant’s
due process rights only if the district court violates the Federal Rules of
Evidence.” Id. “[A] district court violates the Rules of Evidence only if it abuses
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its broad discretion – i.e., only if its ruling is based on a clearly erroneous finding
of fact or an erroneous conclusion of law or the ruling manifests a clear error in
judgment.” Id. (quotation marks and citations omitted). We have long held “[t]he
need for deference to a trial court ruling on a hearsay objection is particularly
great because the determination of whether certain evidence is hearsay rests
heavily upon the facts of a particular case.” United States v. Porter, 881 F.2d
878, 882 (10 th Cir. 1989) (quotation marks and citation omitted). Similarly, the
determination of trustworthiness in regards to “corroborating evidence lies within
the sound discretion of the trial court, which is aptly situated to weigh the
reliability of the circumstances surrounding the declaration.” Id. at 883. Finally,
“the party offering the [hearsay] evidence bears a heavy burden of presenting the
trial court with sufficient indicia of trustworthiness to trigger application of
Federal Rule of Evidence [807].” United States v. Trujillo, 136 F.3d 1388, 1396
(10 th Cir. 1998).
As to Mr. Sun’s newly-raised Fifth Amendment due process claim, to
which we apply plain error review, he must show a constitutional error that was
obvious and affected substantial rights, see United States v. Solomon, 399 F.3d
1231, 1238 (10 th Cir. 2005), by “seriously affect[ing] the fairness, integrity, or
public reputation of judicial proceedings.” Johnson v. United States, 520 U.S.
461, 466-67 (1997). To establish a due process violation, the defendant must
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show he was denied “fundamental fairness,” or, in other words, “the excluded
evidence might have affected the outcome of [his] trial.” Oldbear, 568 F.3d at
820. The plain error doctrine is to be “used sparingly, solely in those
circumstances in which a miscarriage of justice would otherwise result.” United
States v. Oberle, 136 F.3d 1414, 1422 (10 th Cir. 1998) (quotation marks and
citations omitted).
B. Federal Rules of Evidence 804(a)(5), 804(b)(3), and 807
Having set forth our standards of review, we turn to the implicated Federal
Rules of Evidence dealing with hearsay. “‘Hearsay’ is a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in evidence
to prove the truth of the matter asserted.” Fed. R. Evid. 801(c). Generally,
hearsay evidence is “not admissible except as provided by [the Federal Rules of
Evidence].” Fed. R. Evid. 802. As Mr. Sun suggests, under the Federal Rules of
Evidence, a witness must be unavailable for the purpose of permitting his
declaration into evidence, and a witness is unavailable when, for instance, he “is
absent from the hearing and the proponent of a statement has been unable to
procure the declarant’s attendance ... [or] by process or other reasonable means.”
Fed. R. Evid. 804(a)(5). However, as the government contends, this is not enough
to permit the declarant’s hearsay statements or testimony into evidence. Instead,
a defendant, like Mr. Sun, who is seeking admission of hearsay evidence under
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Federal Rule of Evidence 804(b)(3) “must show (1) an unavailable declarant; (2)
a statement against penal interest; and (3) sufficient corroboration to indicate the
trustworthiness of the statement.” United States v. Spring, 80 F.3d 1450, 1460-61
(10 th Cir. 1996) (quotation marks and citation omitted).
While Rule 804(b)(3) requires trustworthiness in admitting hearsay
statements against penal interest, Rule 807 also provides a hearsay exception
based on trustworthiness, stating, in relevant part:
A statement not specifically covered by Rule 803 or 804 but having
equivalent circumstantial guarantees of trustworthiness, is not
excluded by the hearsay rule, if the court determines that (A) the
statement is offered as evidence of a material fact; (B) the statement
is more probative on the point for which it is offered than any other
evidence which the proponent can procure through reasonable
efforts; and (C) the general purposes of these rules and the interests
of justice will best be served by admission of the statement into
evidence.
Fed. R. Evid. 807. “The first requirement for admissibility under Rule [807] is
that the statement have circumstantial guarantees of trustworthiness equivalent to
the twenty-three specific hearsay exceptions enumerated in Rule 803.” United
States v. Tome, 61 F.3d 1446, 1452 (10 th Cir. 1995). In other words, this is a
conjunctive requirement that must be met in order to apply the hearsay exception
in Rule 807, even if the other requirements in Rule 807 are met. In addition, we
have said Rule 807 should rarely be used, and only in exceptional circumstances,
because to do otherwise would allow the exception to swallow the hearsay rule.
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Id.Even if a statement qualifies as an exception to hearsay, it may violate the
Sixth Amendment Confrontation Clause if the statement constitutes “testimonial
hearsay” and no “prior opportunity for cross-examination” occurred. Crawford v.
Washington, 541 U.S. 36, 53-54, 68 (2004); see also United States v. Pursley, 577
F.3d 1204, 1223 (10 th Cir. 2009); Solomon, 399 F.3d at 1237. The purpose of
such cross-examination is to assess the reliability of the statement made. See
Crawford, 541 U.S. at 61. We have said “a statement is testimonial if a
reasonable person in the position of the declarant would objectively foresee that
his statement might be used in the investigation or prosecution of a crime.”
Pursley, 577 F.3d at 1223.
In this case, Sun Liutao’s prior written statement he placed “porn” or
“pornographic pictures” on Mr. Sun’s computer was essentially incorporated into
his deposition testimony when that statement was read during his deposition and
he admitted to the truth of that statement. For the purposes of this case only, we
assume, without deciding, his deposition incorporating that statement constitutes
testimonial hearsay and that the government had a “prior opportunity for cross-
examination” of Sun Liutao’s statements for the purpose of meeting the
Confrontation Clause requirement, regardless of the fact he failed to answer many
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of the questions posed to him during that cross-examination. In addition, the
government concedes Sun Liutao was unavailable to testify at trial. With these
assumptions established, we are left to decide only whether, under Federal Rule
of Evidence 804(b)(3), Sun Liutao made a statement against penal interest and
sufficient corroboration indicates the trustworthiness of his statements for the
purpose of determining whether they are admissible hearsay. See Spring, 80 F.3d
at 1460-61.
To begin, it is highly debatable whether Sun Liutao made a statement
against penal interest. We have said a statement against penal interest must not
only tend to incriminate the declarant, but must also exculpate the accused. See
United States v. Perez, 963 F.2d 314, 316 (10 th Cir. 1992). In this instance, Sun
Liutao’s ambiguous admission he placed “porn” or “pornographic pictures” on
Mr. Sun’s computer, without an admission he placed illegal “child” pornography
on it, does not necessarily implicate him in the crime at issue and for which he
could be prosecuted. His failure to admit to placing the illegal child pornography
on the computer also does not exculpate Mr. Sun. We have said in such instances
that “[t]o the extent that a statement is not against the declarant’s interest, the
guaranty of trustworthiness does not exist and that portion of the statement should
be excluded.” Porter, 881 F.2d at 882-83 (emphasis, quotation marks, and
citation omitted). We also agree with the government that Sun Liutao’s
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statements, including his written statement incorporated into his deposition
testimony, lack reliability or trustworthiness because he refused to answer cross-
examination questions regarding the images he placed on Mr. Sun’s computer. As
previously noted, the purpose of such cross-examination is to assess the reliability
of the statement made, see Crawford, 541 U.S. at 61, which logically goes to “the
trustworthiness of the statement” made under Rule 804(b)(3).
In addition, Mr. Sun’s father’s testimony does not corroborate Sun Liutao’s
testimony for the purpose of indicating the trustworthiness of his statement, as
required under Rule 804(b)(3). While Mr. Sun’s father testified Sun Liutao told
him he placed child pornography on his son’s computer, Sun Liutao did not admit,
either in his statement or deposition, to placing “child” pornography on the
computer, so, arguably, no corroboration exists on that point. Moreover, the
district court found Mr. Sun’s father’s testimony lacked equivalent circumstantial
guarantees of trustworthiness required under Federal Rule of Procedure 807. As
previously discussed, the determination of trustworthiness regarding
corroborating evidence lies within the sound discretion of the district court,
Porter, 881 F.2d at 882, and Mr. Sun bears a heavy burden of presenting hearsay
evidence with a sufficient indicia of trustworthiness under Rule 807. See Trujillo,
136 F.3d at 1396. Here, the district court agreed with the government Mr. Sun’s
father was not a citizen subject to its jurisdiction and his statements were
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unreliable, given his apparent motive in attempting to exonerate his son, which
may have led to fabrication in order to protect his son. As a result, we cannot say
the district court abused its discretion in determining Sun Liutao’s statements did
not meet the hearsay exception under Federal Rule of Evidence 804(b)(3).
For the same reasons that Sun Liutao’s statements lack sufficient
trustworthiness under Rule 804(b)(3), they also lack trustworthiness under
Federal Rule of Evidence 807. As previously addressed, “[t]he first requirement
for admissibility under Rule [807] is that the statement have circumstantial
guarantees of trustworthiness ....” Tome, 61 F.3d at 1452. Without such
trustworthiness, his statements are inadmissible, regardless of whether the other
Rule 807 criteria apply. For the reasons previously cited, the district court did
not abuse its discretion in denying the admission of Sun Liutao’s statements under
Rule 807. While the district court may have earlier indicated it would consider
admission of Sun Liutao’s testimony under certain circumstances, it is apparent it
did not make its final ruling until after the testimony was taken and another
hearing held on the issue when it reviewed his deposition and determined his
testimony lacked the requisite trustworthiness for admission under either Rule
804(b)(3) or Rule 807
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C. Due Process Plain Error
Having determined the district court did not abuse its discretion in its
denial of the admission of Sun Liutao’s statements under the Federal Rules of
Evidence, we also determine no plain error occurred with respect to Mr. Sun’s
newly-raised Fifth Amendment due process claim. As previously discussed, “an
evidentiary ruling infringes a defendant’s due process rights only if the district
court violates the Federal Rules of Evidence,” see Oldbear, 568 F.3d at 820,
which did not occur here. However, even if we gave Mr. Sun the benefit of the
doubt and somehow concluded the district court committed an obvious
constitutional error, the error clearly did not affect the outcome of his trial.
First, Mr. Sun’s cousin, Sun Liutao, never admitted to placing “child”
pornography on the computer, so the exculpatory value of his statements is highly
questionable, as it is apparent those statements did not exonerate Mr. Sun. In
addition, regardless of whether Sun Liutao loaded the child pornography onto Mr.
Sun’s computer, Mr. Sun possessed the child pornography, which he initially
admitted to rangers he knew was on his computer and had accessed and viewed
but had not deleted. Such possession is sufficient for conviction under 18 U.S.C.
§ 2252A(a)(5)(A), which applies to anyone who “knowingly possesses, or
knowingly accesses with intent to view, ... material that contains an image of child
pornography ....”
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The rangers’ testimony as to Mr. Sun’s admission to knowingly possessing
the child pornography is corroborated by the forensic expert’s findings that: (1)
Mr. Sun’s computer contained an overwhelming number of 800 explicit images of
child pornography; (2) at least twenty of the sexually-explicit images of children
had file access dates in June 2007, indicating someone viewed them during Mr.
Sun’s employment at Yellowstone National Park; and (3) these access dates
corresponded with dates when someone accessed Mr. Sun’s school and family
photograph folders and conducted internet surfing to various web-sites, including
those of Mr. Sun’s college and bank. Based on this information, a jury could
reasonably conclude, as did the expert, that Mr. Sun, as the owner/possessor of
the computer, would no doubt be aware of at least some of the 800 images on his
computer and was most likely the person viewing the child pornography during
the time in question when photographs of his family and web-sites for his school
and bank were also viewed. Thus, in convicting Mr. Sun of possession of child
pornography, i t is apparent the jury credited the rangers’ and the forensic expert’s
testimony and soundly rejected Mr. Sun’s contentions at trial he was unaware the
child pornography was on his computer until the rangers informed him of it. 5
5
In addressing whether the exclusion of the hearsay evidence violated Mr.
Sun’s constitutional due process rights, we review the sufficiency of the evidence
to support his conviction, and, in so doing, “[w]e will not weigh conflicting
evidence or second-guess the fact-finding decisions of the jury,” but determine
only “whether a reasonable jury could find guilt beyond a reasonable doubt, based
on the direct and circumstantial evidence, together with the reasonable inferences
(continued...)
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Similarly, Mr. Sun’s claim his cousin’s hearsay testimony would have
exonerated him is countered by evidence showing: (1) the child pornography
folders were catalogued in the same manner as the other folders and sub-folders
or sub-files on Mr. Sun’s computer; (2) most of the folders, including the child
pornography, were in English, which he spoke but his cousin did not; and (3) on
the day before and the day of his arrival in the United States, when his cousin did
not have access to his computer, someone placed a picture-viewing program on
Mr. Sun’s computer containing 2,000 indecent images of children and used his
computer to view sex sites and download images onto the computer, including at
least one image of child pornography.
In addition, even though Mr. Sun suggests his cousin’s statements were
critical to his defense because they would have shown someone else placed the
child pornography on his computer, his own testimony, as well as the unredacted
portions of Sun Liutao’s and Mr. Sun’s father’s testimony submitted to the jury,
clearly indicated that others besides Mr. Sun had access to the computer and an
opportunity to place child pornography on it before he took it to the United
States, including Sun Liutao, Mr. Sun’s parents, the repair shop, and various other
individuals such as his friends and college acquaintances. However, as previously
5
(...continued)
to be drawn therefrom.” United States v. Sells, 477 F.3d 1226, 1235 (10th Cir.
2007).
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discussed, the fact someone else placed the child pornography on Mr. Sun’s
computer did not affect the outcome of the jury’s verdict, given the dispositive
issue was whether he knowingly possessed such pornography, in violation of 18
U.S.C. § 2252A(a)(5)(A), regardless of who may have placed it on his computer .
As a result, it is apparent no plain error occurred affecting Mr. Sun’s Fifth
Amendment due process rights.
III. Conclusion
For the foregoing reasons, we AFFIRM the district court’s denial of Mr.
Sun’s hearsay evidence and AFFIRM his conviction.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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