Argued and Submitted, Pasadena, California June 4,
Appeal from the United States District Court for the Southern District of California. D.C. No. 3:12-cr-03061-H-1. Marilyn L. Huff, District Judge, Presiding.
The panel affirmed a conviction on two counts of knowingly receiving visual depictions of minors engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(2).
The panel held that the district court did not abuse its discretion in determining that the probative value of uncharged-video evidence admitted under Fed.R.Evid. 404(b) outweighed the danger of unfair prejudice. The panel rejected the defendant's argument that a limiting instruction at the close of the evidence was insufficient and that the district court should have given a contemporaneous limiting instruction sua sponte.
The panel held that the circumstantial evidence of the defendant's knowledge was sufficient to support the verdict, even though there was no direct evidence that he had downloaded or watched the files, where the government produced evidence that the defendant had dominion and control over the two computers on which the child pornography videos were found; and where the number, timing, and location of the videos were inconsistent with the defendant's defenses that he had accidentally downloaded the videos or that a hacker had downloaded them to his computer without his knowledge.
Judge Reinhardt concurred. He wrote that he does not profess to know the solution to the problem of how to cure the illness that causes otherwise law-abiding people to engage in the viewing of child pornography, but that lengthy sentences such as the ten-year sentence in this case for a first offense, cannot be the answer.
Judge Noonan concurred. He wrote to underline the need for further action to discourage a crime that is typically committed by persons with no criminal record and increasingly prosecuted as a serious federal offense. He asked why the government shouldn't advertise the law and its penalty.
Michael L. Crowley (argued) and Emily M. Crowley, Crowley Law Group, San Diego, California, for Defendant-Appellant.
Kyle W. Hoffman (argued), Assistant United States Attorney, Bruce R. Castetter, Chief, Appellate Section, Criminal Division, United States Attorneys' Office, San Diego, California, for Plaintiff-Appellee.
Before: Stephen Reinhardt, John T. Noonan, and Mary H. Murguia, Circuit Judges. Opinion by Judge Murguia; Concurrence by Judge Reinhardt; Concurrence by Judge Noonan.
MURGUIA, Circuit Judge
Lawson Hardrick, Jr. was found guilty after a jury trial of two counts of knowingly receiving visual depictions of minors engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(2). On appeal, Hardrick challenges the admission at his trial of evidence that he possessed other child pornography videos for which he was not charged. Hardrick also challenges the sufficiency of the government's evidence that he knowingly received the two child pornography videos for which he was charged. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
In March 2010, the Department of Homeland Security identified two Internet Protocol (IP) addresses located at Hardrick's home that were making child pornography available for download. Agents seized the two computers associated with the IP addresses from Hardrick's home office. A forensic examination found several child pornography videos on each computer.
While the search warrant was being executed at Hardrick's home, Hardrick admitted to using the file-sharing program LimeWire to download pornography, but he denied having downloaded child pornography. Hardrick said that sometimes he downloaded files with innocuous names only to open the file and find pornography. Once, he downloaded a file titled " Play Ball," which turned out to be a video of high school kids, " all over 18, probably," having sex in the bleachers of a stadium. Hardrick admitted that he had also seen child pornography, a video titled " Father Does," or something similar, involving a four-year-old. Questioned whether there was any child pornography on his home-office computers at the moment, Hardrick responded, " There could be anything on anything. But no, I wouldn't swear to it." Hardrick was indicted on two counts of knowingly receiving a visual depiction of a minor engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(2) and two counts of knowingly possessing a visual depiction of a minor engaging in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(4)(B). Hardrick went to trial on the two knowing receipt counts.
The district court denied Hardrick's motion in limine to exclude evidence of the other, uncharged child pornography videos found on his home-office computers from the government's case-in-chief. The district court agreed with the government that the evidence ...