United States v. Nelson

ROLL, District Judge,

concurring.

I respectfully concur in the memorandum disposition.

I write separately to highlight certain factors that I believe warrant the conclusion that affirmance is appropriate in this case despite the massive amount of sexually explicit material presented at trial and despite the homosexual nature of some of that material.

Sixty-three year old Henderson Hough-ton and thirty-one year old Glen Nelson both have histories of sexual abuse of children. Nelson had possessed child pornography m 1997.

In 1998, Nelson moved M with Hough-ton. Houghton agreed to permit Nelson’s probation officer to search the common residence. In addition, Houghton permitted Nelson to use Houghton’s computer when Houghton was home. In January of 1999, Nelson admitted to his probation officer that he had inappropriate photographs of children at Ms residence. As a result of this confession, Houghton’s computer was seized. A search of the computer revealed a total of 14,000 pictures on two hard drives and arranged in 474 folders. The vast majority of the images were of a sexual nature. Of these 14,000 images, at least 1,314 constituted child pornography.

Houghton told an agent that he owned the computer in question and that he had, on multiple occasions, downloaded images of nude males from the internet. He denied that the images he downloaded were of children.

At trial, only 12 of the 14,000 photos were offered as enlarged images. These 12 photos were clearly sexual portrayals of individuals under 18 years of age. In contrast, the 14,000 pictures were offered as a single exhibit and were “thumbnail” size pictures. 1 Had the government offered only 12 of the 14,000 photos found on the two hard drives, the jury may have inferred that the defendants were unaware of these 12 photos. Accordingly, ample grounds may well have existed for inform-mg the jury of the existence of the 14,000 images and providing the jury with copies of the 1,314 child pornography images in order to dispel any notion that the 12 enlargements were merely rogue images unknown to the possessors. See, e.g., United States v. Lacy, 119 F.3d 742, 748 (9th Cir.1997) (in prosecution for possession of child pornography, government must prove that the defendant “knew the hard drive and disks contained the unlaw *394 ful visual depictions”), cert. denied, 523 U.S. 1101 , 118 S.Ct. 1571 , 140 L.Ed.2d 804 (1998). Viewed in this light, the impact of the admission of all 14,000 thumbnail size images was negligible.

I am hesitant to address the severance issue impliedly suggested in the dissent because neither defendant raised this issue on appeal. In effect, both defendants put the government to the burden of proving guilt. Severance was not required merely because neither defendant admitted to the ownership of the child pornography. Analogously, severance was not required when drugs were discovered in an apartment, the individuals in the apartment claimed to have no knowledge of the drugs, and the people present were jointly charged and tried. Zafiro v. United States, 506 U.S. 534, 539-40 , 113 S.Ct. 933 , 122 L.Ed.2d 317 (1993). Neither defendant testified at trial. The jury was not faced with the predicament of having to convict one defendant if the other defendant was acquitted. United States v. Gillam, 167 F.3d 1273, 1276 (9th Cir.), cert. denied, 528 U.S. 900 , 120 S.Ct. 235 , 145 L.Ed.2d 197 (1999). The jury could have concluded that insufficient evidence existed that Nelson had downloaded the child pornography and that if Houghton downloaded it, he did so without any awareness that the pornographic images were of children. See, e.g., United States v. Cruz, 127 F.3d 791, 800 (9th Cir.1997), cert. denied sub nom. Mesa v. United States 522 U.S. 1097 , 118 S.Ct. 896 , 139 L.Ed.2d 881 (1998). The defendants fail to specify any reason as to why they should not have been tried in a joint trial.

Finally, the introduction of some adult homosexual pornography among a total of 14,000 thumbnail size images in a trial for receiving and possessing child pornography does not raise the same concerns as the admission of gay adult magazines in a prosecution for criminal sexual conduct involving children. To so hold does no violence to People of the Territory of Guam v. Shymanovitz, 157 F.3d 1154 (9th Cir.1998). On the facts presented, the matters raised as error on appeal were harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967).

. These thumbnail size black and white photos were one inch by one inch in size, arranged alphabetically by directory, and placed in an exhibit notebook.