United States v. Jesse Davison

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4778
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JESSE AARON DAVISON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District
Judge. (1:10-cr-00632-MJG-1)
Submitted: June 13, 2012 Decided: August 1, 2012
Before MOTZ, KEENAN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Edward C. Sussman, LAW OFFICE OF EDWARD SUSSMAN, Washington,
D.C., for Appellant. Rod J. Rosenstein, United States Attorney,
Paul E. Budlow, Assistant United States Attorney, Kristi N.
O'Malley, Assistant United States Attorney, Lindsey Carpenter,
Law Clerk, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a bench trial, the district court found Jesse
Aaron Davison guilty of multiple counts of production and
possession of child pornography and sentenced Davison to life
imprisonment. Davison now appeals. For the reasons that
follow, we affirm.
The evidence at trial established that in 2009 Davison’s
co-defendant, Tiffany Bolner, befriended CW, a ten year old girl
who moved into an apartment with her mother across the street
from Bolner. CW and Bolner would often spend the night together
at Bolner’s apartment.
In early 2010, Bolner met Davison, who lived in a halfway
house at the time, and the two began a romantic relationship.
When Davison moved out of the halfway house, he and Bolner moved
into a shared apartment next door to CW. Davison lied to CW’s
family, telling them that he had a ten year old daughter who
lived with him, so that they would allow CW to continue spending
weekends in Bolner’s (and Davison’s) apartment.
During the weekends that CW spent with Bolner and Davison,
they encouraged her to drink and smoke and engaged in sexual
intercourse in front of her. The abuse progressed and Davison
and Bolner engaged CW in sexual activity on numerous occasions.
Davison and Bolner produced videos and photographs of the sexual
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conduct using Davison’s Blackberry phone. They stored the
videos and images on a 64MB and a 2GB memory card.
On May 20, 2010, Baltimore police arrested and charged
Davison with assaulting Bolner. Following the arrest, CW
disclosed the sexual abuse to her mother, who in turn reported
Bolner and Davison to police.
At a police interview, Bolner denied that she or Davison
had any sexual contact with CW. After the interview, Bolner
returned to the apartment and deleted all of the images on the
64MB memory card. After the police detained Bolner, Bolner’s
mother, Neva, and Bolner’s sister, Kristina Randall, went to the
apartment and removed Bolner’s property, including a red MP3
player and the Blackberry phone. Neva Bolner stored the items
in a set of drawers in her own home.
While incarcerated, Davison also attempted to conceal the
abuse by repeatedly urging his sister, Laura, to destroy the
evidence, describing to her the relevant images and videos.
Davison informed Laura that his Blackberry phone and the red MP3
player contained photographic and video evidence “that could put
him away for life.” He instructed Laura to obtain a key to his
apartment from Bolner’s mother, retrieve the Blackberry and red
MP3 player, and destroy the incriminating images and videos.
Davison added that if the items were not in the apartment, they
would likely be in Bolner’s possession. Rather than aid
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Davison, however, Laura told the police about the
communications.
As a result, the police obtained warrants for three
locations: (1) Davison and Bolner’s shared apartment, (2) Neva
Bolner’s apartment, and (3) Kristina Randall’s home. Out of
fear for Laura Davison’s safety, the officers who drafted the
warrant affidavits sought the magistrate’s assistance in
drafting language to conceal Laura Davison’s identity. The
ensuing searches resulted in the seizure of the red MP3 player
with the 2GB memory card and a Blackberry phone with no memory
card from Neva Bolner’s apartment.
Because Davison and Bolner had recently been evicted from
their apartment, FBI Special Agents from the Maryland Child
Exploitation Task Force entered the apartment with the consent
of the landlord in order to take photographs of the location of
the abuse. Inside the apartment, the Agents located the 64MB
memory card on the floor. Subsequent forensic examination of
the 2GB and the 64MB memory cards revealed that they contained
sexually explicit images and videos of Davison, Bolner, and CW.
Following a bench trial, the district court found Davison
guilty of conspiracy to produce child pornography in violation
of 18 U.S.C. § 2251(e), four counts of production of child
pornography in violation of § 2251(a) and § 2256, possession of
child pornography in violation of § 2252(a)(5)(B), and tampering
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with objects and proceedings in violation of 18 U.S.C.
§ 1512(c)(1)–(2). Davison stipulated that he had previously
been convicted of attempted rape under Maryland law of a victim
under seventeen years of age. Based on this prior conviction,
the district court sentenced Davison under 18 U.S.C. § 3559(e),
which provides for mandatory concurrent life sentences on the
production of child pornography counts. The district court also
imposed a one-hundred twenty month sentence on the possession
count and a sixty month sentence on the tampering count.
Davison raises three arguments on appeal. First, he
challenges the validity of the search warrants, arguing that the
issuing magistrate improperly assisted the officers in drafting
the language used in the warrant affidavits. In order to
challenge the validity of the warrant, however, Davison must
first establish a legitimate expectation of privacy in the area
searched –- Neva Bolner’s home -- not merely an interest in
items found. See United States v. Salvucci, 448 U.S. 83, 92-93
(1980); Rakas v. Illinois, 439 U.S. 128, 143 (1978). While
Davison may be able to assert a possessory interest in the 2GB
memory card seized from Neva Bolner’s bedroom, “ownership of the
item seized is, by itself, insufficient to confer a privacy
interest in the area searched.” United States v. Manbeck, 744
F.2d 360, 374 (4th Cir. 1984); see also United States v.
Horowitz, 806 F.2d 1222, 1224 (4th Cir. 1986). The officers
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executing the warrant on Neva Bolner’s residence located the
memory card inside a set of drawers in the bedroom. Davison
offered no evidence of his interest or control over the
residence or the bedroom. Moreover, given Neva Bolner and
Kristina Randall’s access to the memory card and Davison’s
specific request that his sister delete certain files from the
memory card, he cannot reasonably claim an expectation of
privacy in the contents of the memory card. Accordingly, we
have no trouble concluding, as the district court did, that
Davison has not established the requisite Fourth Amendment
interest to challenge the validity of the warrant.
Next, Davison challenges the sufficiency of the evidence
regarding each count of conviction. A defendant challenging the
sufficiency of the evidence faces a heavy burden. United
States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997). In
determining whether the evidence in the record is sufficient, we
view the evidence in the light most favorable to the government.
United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en
banc). “Reversal for insufficient evidence is reserved for the
rare case where the prosecution’s failure is clear.” Beidler,
110 F.3d at 1067 (internal quotation marks and citation
omitted). Having reviewed the record, we conclude that the
convictions are supported by sufficient evidence.
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Finally, Davison argues that the district court improperly
sentenced him to mandatory life imprisonment under 18 U.S.C.
§ 3559(e). This statute provides that “[a] person who is
convicted of a Federal sex offense in which a minor is the
victim shall be sentenced to life imprisonment if the person has
a prior sex conviction in which a minor was the victim.” 18
U.S.C. § 3559(e)(1). Davison does not dispute that his instant
convictions under 18 U.S.C. § 2251 constitute “Federal sex
offense[s].” See id. § 3559(e)(2)(A). Nor does he dispute that
he has been convicted or “a prior sex offense in which a minor
was the victim,” namely attempted rape of a victim under
seventeen years of age. See id. § 3559(e)(1)–(2); MD Crim. Code
Ann. § 3-309. Finally, this prior offense clearly “consists of
conduct that would be a Federal sex offense” had it occurred
within federal jurisdiction. See id. § 3559(e)(2)(B)(i)-(ii). *
Davison contends that his prior conviction should not
trigger § 3559(e) because although the victim was a minor (age
*
Though Davison correctly notes that his prior conviction
did not have a federal nexus, § 3559(e)(2)(B) only requires that
the state sex offense “consists of conduct that would be a
Federal sex offense if” it had occurred within federal
jurisdiction. 18 U.S.C. § 3559(e)(2)(B) (emphasis added). The
conduct yielding Davison’s conviction for attempted forcible
rape would constitute the federal offense of aggravated sexual
abuse by force or threat under 18 U.S.C. § 2241(a) if it had
occurred within federal jurisdiction. Accord United States v.
Gallenardo, 579 F.3d 1076, 1086-87 (9th Cir. 2009); United
States v. Rosenbohm, 546 F.3d 820, 823 (7th Cir. 2009).
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fifteen), Davison was also a minor at the time of the offense
(age sixteen). Davison argues that § 3559(e) is ambiguous as to
whether it “is intended to reach those individuals who while
minors themselves previously victimized minors.” He urges us to
apply the rule of lenity and hold that § 3559(e) does not apply
to his case. But Davison cites no authority for this argument
and we discern no “grievous ambiguity or uncertainty in the
statute” that warrants application of the rule of lenity. See
Barber v. Thomas, 130 S. Ct. 2499, 2508-09 (2010). Accordingly,
we reject this argument and affirm the sentence.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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