United States v. Beau Christopher Mallory

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15286 ELEVENTH CIRCUIT
JUNE 3, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 09-00060-CR-1-LSC-JEO
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BEAU CHRISTOPHER MALLORY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(June 3, 2010)
Before TJOFLAT, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Beau Christopher Mallory appeals his convictions for possession and receipt
of child pornography under 18 U.S.C. § 2252A(a)(5)(B) and (a)(2)(A). He argues
that the district court erred by denying his motion for a psychiatric exam and that
the evidence was insufficient to support his conviction. After a thorough review of
the record, we affirm.
I. Background
In 2009, a federal grand jury indicted Mallory for knowingly possessing and
receiving child pornography that had traveled in interstate commerce. Before trial,
Mallory moved for a mental evaluation. After receiving reports on Mallory’s
mental health from probation officers, and questioning him directly, a magistrate
judge denied Mallory’s motion. Mallory did not file objections to this order in the
district court.
At trial, Special Agent Thomas Witten—the government’s only witness—
testified that he found questionable content on Mallory’s computer during an
investigation of suspicious peer-to-peer computer networks. After executing a
search warrant, Witten found child pornography on the hard drive of Mallory’s
computer. Although Witten admitted that there was no way to prove Mallory had
viewed these images, he testified that Mallory was the only person with access to
the files and that they had been downloaded between September 11, 2008 and
October 14, 2008.
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At the conclusion of the government’s case, Mallory moved for a judgment
of acquittal, which the district court denied. Mallory then testified on his own
behalf, stating that he did not view all of the images on his computer and that he
never knowingly viewed child pornography. On cross examination, Mallory
explained that he did not believe images of 16-year-olds were child pornography
and that a 14-year-old was not necessarily a child. Mallory conceded that his
beliefs contradicted the law, but said that he had never acted on them or molested
children. At the conclusion of his case, Mallory did not renew his motion for
acquittal, and the jury convicted him.
II. Discussion
On appeal, Mallory first argues that the district court erred by denying his
motion for a mental evaluation because the magistrate judge’s order was based on
assessments from probation officers who were not licensed as doctors,
psychiatrists, or psychologists.
“The law is settled that appellate courts are without jurisdiction to hear
appeals directly from federal magistrates.” United States v. Renfro, 620 F.2d 497,
500 (5th Cir. 1980).1 Federal Rule of Criminal Procedure 59(a), which became
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), we
adopted as binding precedent all decisions of the Fifth Circuit handed down prior to October 1,
1981.
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effective December 1, 2005, provides that, if the magistrate judge issues an order
on a non-dispositive matter, a “party may serve and file objections to the order
within 14 days after being served with a copy of a written order or after the oral
order is stated on the record.” Fed. R. Crim. P. 59(a). Furthermore, “[f]ailure to
object in accordance with this rule waives a party’s right to review.” Id. Despite
Rule 59(a)’s waiver language, we have continued to hold that a failure to object to
a magistrate judge’s order deprives us of jurisdiction to review that issue. See
United States v. Brown, 441 F.3d 1330, 1352 n.9 (11th Cir. 2006) (applying Renfro
“because the [new Rule 59(a)] rule is in complete accord with our own circuit case
law, which clearly prohibits us from considering Brown’s argument on appeal”).
Because Mallory did not appeal the magistrate judge’s order to the district court,
we lack jurisdiction to review it.
Second, Mallory argues that the evidence was insufficient to support his
conviction because the government failed to show that he knew the images and
materials on his computer were child pornography or that he received this material
over the internet.
A defendant’s failure to renew his motion for a judgment of acquittal at the
close of evidence forecloses any appellate review of the sufficiency of the evidence
unless there has been a miscarriage of justice. United States v. Bichsel, 156 F.3d
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1148, 1150-51 (11th Cir. 1998). Because Mallory did not renew his motion for a
judgment of acquittal at the close of all evidence, we will affirm Mallory’s
convictions unless the evidence “on a key element of the offense is so tenuous that
a conviction would be shocking.” United States v. Williams, 144 F.3d 1397, 1402
(11th Cir. 1998).
Subsections 2252A(a)(5)(B) and (a)(2)(A) make it illegal for any person to
knowingly possess or receive any child pornography that has been transported or
produced “using any means or facility. . . in or affecting interstate or foreign
commerce by any means, including by computer.” The government presented
evidence that Mallory had been using peer-to-peer networks to search for
suspicious material over the internet and that child pornography had been
downloaded onto his hard drive. Furthermore, the jury was entitled to discredit
Mallory’s testimony that he was not knowingly looking at child pornography and
believe the opposite. See United States v. Brown, 53 F.3d 312, 314-15 (11th Cir.
1995). Finally, Mallory bolstered the government’s case when he testified that his
definition of child pornography was in conflict with the law. Thus, Mallory’s
convictions were not “shocking,” Williams, 144 F.3d at 1402, and are therefore
AFFIRMED.
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