United States v. Ian Pincombe

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 17 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10090
Plaintiff-Appellee, D.C. No.
2:14-cr-00178-JAD-GWF-1
v.
IAN ALEXANDER PINCOMBE, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Submitted August 13, 2020**
San Francisco, California
Before: GRABER and BRESS, Circuit Judges, and DAWSON,*** District Judge.
Ian Pincombe appeals his conviction and sentence for coercion of a minor, 18
U.S.C. § 2422(b) (Count 1); possession of child pornography, 18 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Robert T. Dawson, United States District Judge for the
Western District of Arkansas, sitting by designation.
§ 2252A(a)(5)(B) (Count 2); and receipt of child pornography, 18 U.S.C.
§ 2252(a)(2) (Count 3). We affirm Pincombe’s convictions on Counts 1 and 2,
vacate his conviction on Count 3, and remand for resentencing.
1. Pincombe’s assertion that Congress lacked the power under the
Commerce Clause to proscribe the charged conduct fails. See, e.g., United States v.
McCalla, 545 F.3d 750, 753–56 (9th Cir. 2008); United States v. Adams, 343 F.3d
1024, 1028–34 (9th Cir. 2003).
2. The district court’s evidentiary determinations were not plainly
erroneous. See United States v. Rizk, 660 F.3d 1125, 1132 (9th Cir. 2011) (stating
standard of review). Files and messages from Pincombe’s computer and cell phone
helped establish Pincombe’s identity as the sole user of those devices, Fed. R. Evid.
404(b)(2), as well as his knowledge that the devices contained child pornography,
see United States v. Ganoe, 538 F.3d 1117, 1123–24 (9th Cir. 2008) (holding that
the admission of child pornography images was not error because the images “were
highly probative of the state of mind with which the files were received and
possessed”); United States v. Salcido, 506 F.3d 729, 735 (9th Cir. 2007) (per curiam)
(holding that evidence of sexually explicit chat logs was relevant to establish that
defendant knew the images on his computer depicted minors). The evidence also
rebutted Pincombe’s defense that images on his computer may have been planted by
police. Pincombe’s files and messages thus were relevant, not unduly prejudicial,
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and used for proper purposes. See Fed. R. Evid. 402, 403, 404(b)(2).1
Even if this evidence was admitted improperly, it did not substantially affect
Pincombe’s rights. The district court gave a proper limiting instruction, which
“minimized any possible prejudicial effect of the evidence.” United States v.
Soulard, 730 F.2d 1292, 1303 (9th Cir. 1984). Pincombe also fails to show that the
files and text messages at issue “changed the outcome of the trial,” United States v.
Bracy, 67 F.3d 1421, 1433 (9th Cir. 1995), particularly considering the “extensive
and strong” evidence connecting Pincombe to the images on his electronic devices,
United States v. Derington, 229 F.3d 1243, 1247 (9th Cir. 2000).
3. The district court did not plainly err in admitting testimony from
Detective Yurek about the forensic examination of Pincombe’s electronic devices.
Detective Yurek was qualified as an expert by his “several hundred hours of
computer forensic training” and his use of the software programs at issue in
“hundreds of cases.” His methodology also was sufficiently reliable. Fed. R. Evid.
702; see, e.g., United States v. Ruvalcaba-Garcia, 923 F.3d 1183, 1191 (9th Cir.
2019) (per curiam). Pincombe’s attacks on Detective Yurek’s qualifications and
methodology go to the weight of Detective Yurek’s testimony, not its admissibility,
1
To the extent that Pincombe challenges the admission of his text messages
with an individual named “Trina Michelle,” his argument was expressly waived
below. United States v. Depue, 912 F.3d 1227, 1233 (9th Cir. 2019) (en banc).
Regardless, the district court did not plainly err in admitting these messages. See
Fed. R. Evid. 404(b)(2).
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and rely in substantial part on materials outside the record. See Ruvalcaba-Garcia,
923 F.3d at 1191 (“[Q]uestions about the correctness of an expert’s conclusions are
a matter of weight, not admissibility.” (internal quotation marks omitted)); Lowry v.
Barnhart, 329 F.3d 1019, 1024 (9th Cir. 2003) (“Save in unusual circumstances, we
consider only the district court record on appeal.”).
4. The district court did not plainly err by failing to address sua sponte
testimony from Detective Yurek that Pincombe contends was false. To prevail on a
claim of false testimony, a defendant must show: “(1) the testimony (or evidence)
was actually false, (2) the prosecution knew or should have known that the testimony
was actually false, and (3) . . . the false testimony was material.” United States v.
Bingham, 653 F.3d 983, 995 (9th Cir. 2011) (quotations omitted).
Detective Yurek’s testimony that he did not initiate sexual discussions with
Pincombe was not “actually false.” The full context of Detective Yurek’s testimony
was that he responded to Pincombe’s sexually explicit Craigslist ad, meaning the
ad—not Detective Yurek’s reply—was the start of the conversation. A dispute as to
the proper characterization of Detective Yurek’s messages does not rise to the level
of “actually false” testimony. See id. (holding that a prior inconsistent statement is
not enough to show testimony was actually false); United States v. Houston, 648
F.3d 806, 814 (9th Cir. 2011) (noting that evidence “creating an inference of falsity”
does not demonstrate that testimony was actually false).
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Regardless, Pincombe has not shown that the allegedly false testimony was
material. Materiality turns on “whether there is any reasonable likelihood that the
false testimony could have affected the judgment of the jury.” Hayes v. Brown, 399
F.3d 972, 984 (9th Cir. 2005) (en banc) (quotations omitted). The full conversation
between Detective Yurek and Pincombe was admitted into evidence and read to the
jury, and Pincombe cross-examined Detective Yurek on this issue. See United States
v. Renzi, 769 F.3d 731, 752 (9th Cir. 2014) (holding that defendant failed to prove
materiality prong where defense counsel effectively attacked witnesses’ credibility
on cross-examination).
5. Pincombe’s challenge to the sufficiency of the evidence fails. The
evidence, viewed in the light most favorable to the prosecution, would allow a
“rational trier of fact [to] have found” guilt beyond a reasonable doubt. United States
v. Mincoff, 574 F.3d 1186, 1192 (9th Cir. 2009) (quotations omitted).
6. The government concedes that Pincombe’s conviction on Count 3
(receipt of child pornography) should be vacated because of instructional error and
potential Double Jeopardy concerns. Given this concession, we vacate Pincombe’s
conviction on Count 3 and remand for resentencing on Counts 1 and 2. Because we
remand for resentencing, we do not address Pincombe’s other arguments concerning
his sentence and the conditions of supervised release.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
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