United States v. Timothy Caruso

United States Court of Appeals
For the Eighth Circuit
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No. 21-3786
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United States of America
Plaintiff - Appellee
v.
Timothy E. Caruso
Defendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: October 20, 2022
Filed: March 29, 2023
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Before SMITH, Chief Judge, BENTON and STRAS, Circuit Judges.
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STRAS, Circuit Judge.
Timothy Caruso used the social-media website Pinterest to trade child
pornography. Even so, he claims that the evidence was insufficient to show that he
distributed or accessed it. See 18 U.S.C. § 2252(a)(4)(B) (access with intent to
view); 18 U.S.C. § 2252A(a)(2), (b)(1) (distribution). And regardless, he thinks the
district court 1 should have kept the jury from hearing about his Pinterest profile,
search history, and chat records. We affirm.
I.
A repeat sex offender, Caruso was on supervised release and living in the
guest bedroom of a friend’s house when he decided to set up a Pinterest account. In
addition to a roof over his head, his friend gave him an Android cellphone and access
to the internet—the tools necessary to trade in child pornography.
The first step was setting up an account. While at work, he used the Android
phone and internet access to create a Pinterest account with the email address
“tcaruso132000@gmail.com.” Although he started with the default username
“tcaruso132000,” he soon switched to “MrCharlieHust17” and adopted the screen
name “Charlie hustle.”
The second step in his plan was finding like-minded users online. He first
tried Pinterest’s search function. His search history was filled with phrases like
“teens twerking,” “tweens in bikin[i]s,” “preteen pussy,” “spank me daddy,” and
“sexy butts.” He also created “boards,” which displayed pictures and other material
he found interesting for others to see. Some of the boards were unremarkable: they
contained pictures of “Wicked tattoos,” “Fly Shoes,” and “Chicago bears football.”
Others had names like “hot schoolgirl outfits,” “boy shorts,” “nipples,” “boobs,” and
“Hot Service Chicks.”
Caruso’s plan worked. Before long, he started chatting with other users. One
sent a message complimenting him on his “great collection of cute girls[.]” As the
back-and-forth continued, Caruso mentioned that he had been “grooming” his
1
The Honorable Robert F. Rossiter, Chief Judge, United States District Court
for the District of Nebraska.
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girlfriend’s three children. It was “divine,” he added, “to indulge in our special little
princesses.”
He had a similar conversation with another user. In response to a message
about masturbation, Caruso said that he had “ducked 5 little girls so [he knew] the
feeling” and broached the possibility of a “trad[e].” He then told a third user that he
“[l]ove[d] [his] boards” and wondered whether there was “any chance” of “anything
w[ith] a li[ttle] less on” to “share . . . privately.” Neither would trade with him.
Caruso was undeterred. On Christmas Eve, he sent a message to Pinterest
user “redactedzcpkqjr” saying “I’m really trying to find sexy littles.” When
redactedzcpkqjr replied with “[y]our added,” Caruso shared that he wanted to find
“a gif of a girl . . . on the internet” because he had “lost” his “underage collection.”
He then apparently offered a trade: “Please find her and can I post nudes on our
littles board.” Later that day, Caruso uploaded a single image depicting child
pornography onto the board from his friend’s house.
Though technically private, the “Little” board was on law enforcement’s
radar. The National Center for Missing and Exploited Children had received a tip
that a user had uploaded child pornography from an Android phone. Once local
authorities found out the user in question was Caruso, he faced two child-
pornography counts: one for distribution, see 18 U.S.C. § 2252A(a)(2), (b)(1), and
another for access to it with intent to view, see 18 U.S.C. § 2252(a)(4)(B). The
district court denied Caruso’s motion for judgment of acquittal after a jury found
him guilty of both counts.
II.
Caruso continues to attack the verdict in two ways. First, he claims that
uploading the image to the “Little” board does not count as “distribut[ion] . . . by
computer.” 18 U.S.C. § 2252A(a)(2). Second, even assuming someone distributed
child pornography, the government never proved it was him.
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Both arguments challenge the sufficiency of the evidence, which we review
de novo. See United States v. White, 962 F.3d 1052, 1055 (8th Cir. 2020). In doing
so, we view “the evidence in the light most favorable to the government and draw[]
all reasonable inferences in favor of the verdict.” Id.A.
The first question focuses on what it takes to “distribute[]” child pornography.
18 U.S.C. § 2252A(a)(2). To “distribute” means “to give out or deliver[,]
esp[ecially] to the members of a group.” Webster’s Third New International
Dictionary 660 (2002); see The American Heritage Dictionary of the English
Language 525 (5th ed. 2016) (defining “distribute” as “[t]o deliver or pass out”).
And the statute is clear about what the defendant must “give out or deliver”: “any
child pornography.” 18 U.S.C. § 2252A(a)(2)(A); see United States v. Shaffer, 472
F.3d 1219, 1223–24 (10th Cir. 2007) (discussing the “distribution” requirement).
In a digital world, it is no surprise that distribution often happens digitally.
One way is to simply post child pornography, like Caruso did, in a place where other
people can view or download it. See United States v. Sewell, 513 F.3d 820, 822 (8th
Cir. 2008) (concluding that “placing a file in a shared folder with descriptive text is
clearly an offer to distribute the file” under 18 U.S.C. § 2251(d)(1)(A)). And here,
Caruso knew that there was at least one other user, redactedzcpkqjr, who had access
to the “Little” board. After all, he added Caruso. From that evidence, the jury was
free to draw the common-sense conclusion that he had access to the pornographic
image that Caruso posted. Nothing more was necessary to “distribute[] . . . child
pornography . . . by computer.” 18 U.S.C. § 2252A(a)(2); see United States v.
Huyck, 849 F.3d 432, 441 (8th Cir. 2017) (“If there is an interpretation of the
evidence that would allow a reasonable-minded jury to find the defendant guilty
beyond a reasonable doubt, then we must uphold the verdict.” (citation omitted)).
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B.
Caruso’s second sufficiency-of-the-evidence challenge arises out of his
alternative-perpetrator defense. In his view, the government failed to prove that he
was the “Charlie hustle” who uploaded the image on Pinterest. See 18 U.S.C.
§§ 2252(a)(4)(B), 2252A(a)(2), (b)(1). In our view, the government proved its case.
First, it showed how Caruso set up the account. See Huyck, 849 F.3d at 442(affirming a conviction because the defendant knew how to use a computer program
to access child pornography and was the only adult around at the time). The
government’s theory was that he created his profile while at work and then uploaded
the image from his friend’s house using an Android phone. To support that theory,
his friend confirmed that Caruso was in each of those places during the dates and
times in question and that he had given him an Android phone.
Second, the government connected the Pinterest account to Caruso, who was
not particularly adept at covering his tracks. The first telltale sign was that its creator
used the email account tcaruso132000@gmail.com, a perfect match to Caruso’s
name. The user’s “boards” also matched his interests: tattoos and Chicago Bears
football. And Caruso’s girlfriend confirmed both that she had three young daughters
and that she had seen a reference to the screen name “Charlie hustle” in one of his
drawings. Finally, a search of the tcaruso132000@gmail.com email account turned
up pictures of Caruso himself, which further linked him to the Pinterest account. On
this record, it is hard to see how anyone other than Caruso could have posted the
image.
Still, Caruso points the finger elsewhere. According to him, his friend did
it—the same one who offered him a place to stay, found him a job at the same car-
repair center where he worked, and gave him a cellphone. In Caruso’s view, his
friend had opportunity, including access to his drawings, the Android phone, and the
same internet he used. From there, Caruso faults the “[t]he government [for]
fail[ing] to rule out” his friend.
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Caruso’s alternative-perpetrator theory is weak. See United States v.
Manning, 738 F.3d 937, 945 (8th Cir. 2014) (affirming a conviction for receipt of
child pornography despite the defendant’s baseless claim that his wife accessed his
computer remotely and framed him for the crime). After all, “Charlie hustle” created
the Pinterest account the day after Veteran’s Day, when his friend was not even at
work. And the government connected the “Charlie hustle” name to Caruso directly,
both through his drawings and the email account. At a minimum, “[t]he jury was
free to reject” the hypothesis that his friend did it. Id.; see Huyck, 849 F.3d at 441(concluding that when the evidence “rationally supports two conflicting
hypotheses,” the court will not disturb a guilty verdict (citation omitted)).
III.
Even if the jury had enough evidence to find him guilty of both counts, Caruso
believes he deserves a new trial because it heard too much. At trial, he objected to
the admission of his public Pinterest profile, which displayed the boards he had
created and the sexually suggestive images he had “pinned.” In his view, it was
impermissible propensity evidence, admitted for no other purpose than to show that
he was a bad guy. See Fed. R. Evid. 404(b). And even if its admission served some
other relevant purpose, it was “unfair[ly] prejudic[ial].” Fed. R. Evid. 403. Our
review is for an abuse of discretion, with deference shown “to the [district] judge
who saw and heard the evidence.” See United States v. Cody, 114 F.3d 772, 777
(8th Cir. 1997) (citation omitted).
A.
Propensity evidence is generally inadmissible. By propensity evidence, we
mean “using another bad act to show that an individual is likely to do the same thing
again in the future.” United States v. Vaca, 38 F.4th 718, 721 (8th Cir. 2022).
Caruso’s theory here is that the jury may have convicted him based on the sexually
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suggestive board names and images in his public Pinterest profile. Someone who
collects those images, the argument goes, might also collect similar images of kids.
Although using the Pinterest boards to show his “generalized tendency to act
in [that] way” was off-limits, the government had another reason for admitting it.
David P. Leonard, The New Wigmore: A Treatise on Evidence: Evidence of Other
Misconduct and Similar Events § 9.2.1, at 633 (Richard D. Friedman ed., 2d ed.
2019). Rule 404(b) contains a long “list of” acceptable non-propensity purposes,
“from proving state-of-mind requirements like ‘intent’ and ‘knowledge’ to
countering potential defenses like ‘mistake.’” Vaca, 48 F.4th at 722 (quoting Fed.
R. Evid. 404(b)(2)). The ones that apply here are “plan” and “preparation.” Fed. R.
Evid. 404(b)(2).
The classic plan-or-preparation scenario is the commission of one crime as
part of a larger scheme to commit another. One prominent treatise gives an example:
“steal[ing] a car to use” as the getaway vehicle in a bank robbery. 1 Robert P.
Mosteller et al., McCormick on Evidence § 190.2, at 1150 (8th ed. 2020); see United
States v. Carroll, 207 F.3d 465, 468 (8th Cir. 2000) (using the same example). In
those circumstances, the earlier “automobile theft” is admissible “in a prosecution
for the robbery.” 1 Mosteller et al., McCormick on Evidence, supra § 190.2, at 1150;
Lewis v. United States, 771 F.2d 454, 455–56 (10th Cir. 1985) (explaining that the
burglary of a store to get a “cutting torch” is admissible in a trial for the burglary of
the post office, where the torch was used). The reason is that the jury can infer that
“a person who has formulated a plan is more likely to carry out [its] elements.” 1
Mosteller et al., McCormick on Evidence, supra § 190.2, at 1150.
Keep in mind that non-criminal “[a]cts” count too. Fed. R. Evid. 404(b). If
the robber decided to buy bank-vault-cracking tools at a hardware store, evidence of
that non-criminal act would also be admissible in a later robbery trial, as an
“intermediate step” toward the commission of a crime. Leonard, The New Wigmore,
supra § 10.2, at 713. The point is that either act—stealing the getaway vehicle or
buying the tools—is part of a single “course of conduct leading to . . . the crime
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charged.” United States v. Adcock, 558 F.2d 397, 401 (8th Cir. 1977); see 2 Mark
S. Brodin et al., Weinstein’s Federal Evidence § 404.22[5][a], at 404-158 (2d ed.
2022) (“Other-crime evidence may be admissible if the other act or crime is part of
a common scheme or plan that includes the charged offense.”).
Just like the stolen car used in the bank-robbery example, Caruso’s Pinterest
profile was the vehicle driving his child-pornography offenses. The boards he
created—with names like “hot schoolgirl outfits” and “Hot Service Chicks”—
advertised to other users that he was looking for sexually explicit content. And when
those other users contacted him to ask about the images he had “pinned,” he was
clear about what he wanted: child pornography. Setting up the Pinterest account and
creating those sexually suggestive “boards,” in other words, were the “intermediate
step[s]” in Caruso’s overall plan to trade in child pornography. Leonard, The New
Wigmore, supra § 10.2, at 713. Revealing that plan to the jury was the non-
propensity use that made it admissible. See 1 Mosteller et al., McCormick on
Evidence, supra § 190.2, at 1150–52; see also Vaca, 38 F.4th at 722–23 (holding
that there was no abuse of discretion when “there was at least one other non-
propensity purpose”).
B.
For similar reasons, Caruso argues that the “probative value” of allowing the
jury to see his public Pinterest profile was “substantially outweighed” by the “unfair
prejudice” it caused. Fed. R. Evid. 403. The probative value came from its potential
to show that Caruso planned to trade in child pornography from the moment he set
up the account and created his boards. It then allowed the jury to infer that, as
someone “with a plan,” he was “more likely to act consistently with” it. Leonard,
The New Wigmore, supra § 9.3, at 657. Any “unfair prejudice” from this otherwise
permissible use of the evidence did not “substantially outweigh[]” its probative
value. Fed. R. Evid. 403; see United States v. Johnson, 535 F.3d 892, 897 (8th Cir.
2008) (“When the evidence in question is relevant, we defer to the district court’s
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judgment with respect to balancing its probative value with its risk of unfair
prejudice.”).
Besides, the evidence’s probative value is what led to the potential prejudice.
We do not doubt that showing the jurors board names like “hot schoolgirl outfits”
and “Hot Service Chicks” may have turned the jury against him. But there was
nothing unfair about it: it allowed the jury to understand how he was able to attract
the attention of other like-minded users who might be willing to trade child
pornography. These were acts in “‘preparation’ for the later [crime],” which means
there was good reason to let the jury hear about them. Leonard, The New Wigmore,
supra § 10.1, at 711; see Old Chief v. United States, 519 U.S. 172, 180 (1997)
(explaining that “[u]nfair prejudice . . . means an undue tendency to suggest decision
on an improper basis” (quotation marks omitted)); Huyck, 849 F.3d at 440 (noting
that Rule 403 protects against “evidence which is so inflammatory on its face as to
divert the jury’s attention from the material issues in the trial” (brackets and citation
omitted)).
IV.
Caruso raises the same general complaints about the government’s use of his
search and chat histories. Unlike his profile, however, he never objected to their
admission at trial, meaning our review is for plain error. See Fed. R. Crim. P. 52(b).
To succeed, Caruso “has to show, among other things, that there was a clear or
obvious [error] under current law.” United States v. Nunez-Hernandez, 43 F.4th 857,
861 (8th Cir. 2022) (quotation marks omitted).
For the same reasons as his Pinterest profile, he has failed to do so. If
anything, the search and chat histories had an even closer connection to Caruso’s
child-pornography offenses. When he told redactedzcpkqjr, for example, that he
was “trying to find” pornography “on the internet” and wanted to “post nudes on our
littles board,” the jury could conclude that is exactly what he did. See 1 Mosteller
et al., McCormick on Evidence, supra § 190.2, at 1152. The evidence was also
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relevant for another purpose: it refuted Caruso’s claim that no one else had access to
the “Little” board. The point is that admitting it was neither clearly nor obviously
erroneous. See Nunez-Hernandez, 43 F.4th at 861.
V.
We accordingly affirm the judgment of the district court.
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