United States v. Russo

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5231
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MATTHEW JAMES RUSSO,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:09-cr-00191-REP-1)
Submitted: December 30, 2010 Decided: January 21, 2011
Before AGEE and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Carolyn V.
Grady, Assistant Federal Public Defender, Richmond, Virginia,
for Appellant. Neil H. MacBride, United States Attorney, Samuel
E. Fishel, Special Assistant United States Attorney, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Matthew Russo appeals his conviction for knowingly
attempting to receive material containing child pornography, in
violation of 18 U.S.C. § 2252A(a)(2)(B). On appeal, Russo
contends that the evidence was insufficient to support his
conviction and that the district court constructively amended
the indictment by allowing the Government to broaden the bases
for conviction beyond those contained in the indictment. We
affirm.
Russo first questions whether the evidence was
sufficient to support his conviction of attempt to receive
material containing child pornography. In particular, Russo
argues that the Government failed to demonstrate that he took a
substantial step necessary to commit the offense.
The standard of review in criminal cases where the
district court sits in judgment without a jury is
well-settled. We review findings on factual issues
other than the ultimate issue of guilt using the
clearly erroneous test. On the ultimate issue of
guilt, we review the district court’s finding to
determine if it is supported by substantial evidence.
United States v. Lockhart, 382 F.3d 447, 451 (4th Cir. 2004).
In determining whether the evidence in the record is
substantial, this Court views the evidence in the light most
favorable to the Government, and inquires whether there is
evidence that a reasonable finder of fact could accept as
adequate and sufficient to establish a defendant’s guilt beyond
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a reasonable doubt. United States v. Burgos, 94 F.3d 849, 862
(4th Cir. 1996) (en banc).
In order to prove the charged offense, the Government
needed to establish beyond a reasonable doubt that Russo
attempted to knowingly receive material containing child
pornography. See 18 U.S.C. § 2252A(a)(2)(B). In order to prove
an attempt, the Government must demonstrate that
(1) the defendant had the requisite intent to commit a
crime; (2) the defendant undertook a direct act in a
course of conduct planned to culminate in his
commission of the crime; (3) the act was substantial,
in that it was strongly corroborative of the
defendant's criminal purpose; and (4) the act fell
short of the commission of the intended crime due to
intervening circumstances.
United States v. Pratt, 351 F.3d 131, 135 (4th Cir. 2003).
After reviewing the record, we conclude that the evidence is
sufficient to sustain Russo’s conviction.
Next, Russo contends that the district court
constructively amended the indictment by allowing the Government
to broaden the bases for conviction beyond those charged in the
indictment. Specifically, Russo argues the “material containing
child pornography” language of § 2252A(a)(2)(B) “put Russo on
notice that the subject of the offense was his alleged attempted
access to Illegal.CP.” Thus, Russo contends that when the
Government submitted evidence of pornographic images found in
the cache and unallocated space of his computer, this broadened
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the bases for conviction, thereby resulting in constructive
amendment of the indictment.
“A constructive amendment to an indictment occurs when
either the government (usually during its presentation of
evidence and/or its argument), the court, (usually through its
instructions to the jury), or both, broadens the possible bases
for conviction beyond those presented by the grand jury.”
United States v. Floresca, 38 F.3d 706, 710 (4th Cir. 1994). “A
constructive amendment is a fatal variance because the
indictment is altered to change the elements of the offense
charged, such that the defendant is actually convicted of a
crime other than that charged in the indictment.” United States
v. Randall, 171 F.3d 195, 203 (4th Cir. 1999) (internal
quotation marks and citation omitted). A constructive amendment
is error per se, and, given the Fifth Amendment right to be
indicted by a grand jury, “must be corrected on appeal, even
when not preserved by objection.” Floresca, 38 F.3d at 714.
When considering a constructive amendment claim, the key inquiry
is whether the defendant has been tried on charges other than
those made in the indictment. Id. After reviewing the record,
we conclude that the Government did not constructively amend the
indictment.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
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legal contentions are adequately expressed in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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