United States v. Joseph Nguyen

FILED
NOT FOR PUBLICATION
JUL 24 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50062
Plaintiff-Appellee, D.C. No.
3:13-cr-03447-MMA-1
v.
JOSEPH NGUYEN, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Argued and Submitted July 12, 2018
Pasadena, California
Before: IKUTA and N.R. SMITH, Circuit Judges, and McNAMEE,** District
Judge.
Joseph Nguyen appeals his conviction for one count of possession of child
pornography. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Stephen M. McNamee, Senior United States District
Judge for the District of Arizona, sitting by designation.
1. Discovery. Nguyen sought to discover information that could only be
used to (1) find a basis for a motion to suppress; or (2) defend against the
distribution charge at trial. The district court did not abuse its discretion by
denying Nguyen’s motion for discovery. First, Nguyen failed to bring the motion
in a timely manner. Under Federal Rule of Criminal Procedure 12(c), the district
court may establish deadlines for pretrial motions. It was not an abuse of discretion
to deny a motion for evidence to support an untimely motion to suppress.
Second, the Government dismissed the distribution charge before trial. Thus,
the information (regarding the software the Government used to discover that child
pornography had been downloaded at his IP address) was not material to the
remaining possession charge. See Fed. R. Crim. P. 16(a)(1)(E)(i) (requiring the
information must be “material to preparing the defense”).
Finally, Nguyen failed to demonstrate that “the Government [was] in
possession of information helpful to the defense.” United States v. Stever, 603 F.3d
747, 752 (9th Cir. 2010) (citation and quotation marks omitted). Nguyen sought
information almost exclusively in the possession of the software’s third-party
developer.
2. Warrant. First, there was sufficient probable cause to support the warrant.
Law enforcement discovered that child pornography was being shared from a
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computer using a certain IP address. Time Warner Cable matched the IP address
with a customer name and service address. Law enforcement then verified the
name and address with the local utility provider. This was sufficient to establish a
“fair probability that contraband or evidence of a crime [would] be found in
[Nguyen’s home].” Illinois v. Gates, 462 U.S. 213, 238 (1983)
Second, the warrant was not supported by a stale affidavit. The affidavit
attested that (1) a computer using a given IP address “possessed multiple suspected
child pornography files available for sharing”; (2) law enforcement had
downloaded one video (with a file name indicating it was child pornography) and
verified it was child pornography; (3) the subscribing agent had extensive
experience working with child pornography investigations; and (4) individuals
who collect child pornography tend to treat their collection as a “prized
possession[]” and will often make multiple backups to protect it. “The mere lapse
of substantial amounts of time is not controlling in a question of staleness,” United
States v. Dozier, 844 F.2d 701, 707 (9th Cir. 1988), and “in light of the particular
facts of [this] case,” a three month delay between the initial download and the
search did not make the warrant stale, United States v. Lacy, 119 F.3d 742, 745-46
(9th Cir. 1997) (citation and quotation marks omitted) (finding no staleness where
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there was a ten month delay combined with attestations similar to the instant case
regarding child pornography collectors).
3. Evidence. Any abuse of discretion by the district court for failing to
review the two images and six-second video of child pornography before allowing
the Government to publish them to the jury was harmless. Cf. United States v.
Merino-Balderrama, 146 F.3d 758, 761-63 (9th Cir. 1998) (finding “[a]llowing the
jury to view more than ten minutes of film portraying children engaged in graphic
sexual conduct” was not harmless). First, Nguyen makes no allegation or factual
demonstration that some of the images or video clips not shown were less
inflammatory than the ones shown to the jury. Second, “the district court used just
about every tool at its disposal to minimize the inflammatory nature of the
images,” United States v. Ganoe, 538 F.3d 1117, 1124 (9th Cir. 2008), by severely
minimizing (from over five hundred videos and images to two images and one, six-
second video clip) what the Government was allowed to show and giving a
cautionary instruction when the evidence was presented. Finally, the evidence
against Nguyen was overwhelming: (1) Nguyen was sleeping in his bedroom when
the search was conducted, (2) the search revealed child pornography on various
hard drives and the computer next to Nguyen, (3) Nguyen’s personal files were on
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the hard drives, and (4) one of the residents of the home testified that Nguyen told
him he was in trouble for “download[ing] some movies.”
4. Alibi Instruction. The district court did not err by refusing to give an alibi
jury instruction. To prove the charged offense, the Government only needed to
prove Nguyen possessed child pornography “on or about January 29, 2013.” The
fact that Nguyen might have an alibi for other dates is not relevant to the charge
and, thus, there was no legal basis for the instruction. See United States v. Kayser,
488 F.3d 1070, 1073 (9th Cir. 2007).
5. Dual Purpose Instruction. The district court did not plainly err by failing
to give a dual purpose instruction. Although the district court did not give a formal
instruction at the close of evidence, it sua sponte gave a dual purpose instruction
after each of the relevant Government witnesses testified. The instruction given
during the trial materially communicated the necessary distinctions between expert
and percipient testimony, particularly ensuring that no “unmerited credibility” was
ascribed to the fact testimony. United States v. Vera, 770 F.3d 1232, 1242 (9th Cir.
2014).
AFFIRMED.
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