The U.S vs. McNealy Case

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSEPH MCNEALY, Defendant-Appellant.

No. 09-60521

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

625 F.3d 858; 2010 U.S. App. LEXIS 23111

November 5, 2010, Filed

CASE SUMMARY:

PROCEDURAL POSTURE: Defendant appealed a decision of the United States District Court for the Southern District of Mississippi, which convicted him of possession and receipt of child pornography in violation of 18 U.S.C.S. § 2252(a)(2), (a)(4)(B).

OVERVIEW: More than 9,000 pornographic images of children were found on defendant's computer. Federal agents created "forensic image" copies of the three hard drives in defendant's computer; however, his computer and its hard drives were subsequently destroyed. At trial, the government introduced print-outs of some of the images found on defendant's computer, using the forensic image copies. Defendant contended that images retrieved from his computer and alleged to be child pornography were improperly admitted because they were not authenticated under Fed. R. Evid. 901. The court held that nothing in the record, including the images themselves, suggested that they were anything other than images of actual prepubescent children and young teenage girls engaged in what defendant conceded was lewd and lascivious conduct. Moreover, there was no evidence in the record that the state of technology was such that images of this nature could have been generated using virtual children. The court also held that the government's destruction of defendant's computer was not in bad faith, and the destruction did not violate defendant's due process rights.

OUTCOME: The court affirmed defendant's conviction.

OPINION

[*861] PRISCILLA R. OWEN, Circuit Judge:

Joseph McNealy appeals his conviction for possession and receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2), (a)(4)(B). He raises a number of issues, including whether the Speedy Trial Act was violated, the pornographic depictions of children were properly authenticated as images of actual children, and the destruction of his computer's hard drives was in bad faith. We affirm.

I

A nationwide investigation of commercial child-pornography websites revealed evidence that Joseph McNealy had purchased memberships to a number of such sites. Federal agents interviewed McNealy at his [**2] residence, and he consented to a search of his computer. That initial search discovered pornographic images of children on a hard drive. McNealy then consented in writing to the seizure of the computer for further examination.

More than 9,000 pornographic images of children were found. These images had been downloaded from commercial websites and other internet sources. Federal agents created "forensic image" copies of the three hard drives in McNealy's computer; however, his computer and its hard drives were subsequently destroyed. McNealy was indicted for knowing possession and receipt of child pornography in violation of 18 U.S.C. § 2252(a). Before trial, the district court granted continuances at the requests of both McNealy and the Government. At trial, the Government introduced print-outs of some of the images [*862] found on McNealy's computer, using the forensic image copies of two of the hard drives. McNealy was found guilty on all charges and sentenced to 70 months of imprisonment, followed by a life term of supervised release. This appeal followed.

III

McNealy contends that images retrieved from his computer and alleged to be child pornography were improperly admitted because they were not authenticated under Federal Rule of Evidence 901 and did not comport with the best-evidence principles embodied in Federal Rule of Evidence 1002. " [HN6] We review a district court's evidentiary rulings for an abuse of discretion." 17 McNealy [**9] preserved the authentication issue, so we apply the harmless error standard of review. 18 He did not preserve his best-evidence contention, so our review is for plain error. 19

[HN7] Federal Rule of Evidence 901 provides that "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." 20 Evidence may be authenticated by testimony of a witness with knowledge that a matter is what it is claimed to be. 21 The images at issue are photographs within the meaning of Rule 1001(2). 22

McNealy asserts that because no witness testified that the printed images of child pornography the Government introduced were "unaltered images of actual minors actually engaged in the conduct depicted," the evidence should [**10] have been excluded. He asserts that the jurors were incapable of determining if the images depicted real minors or instead depicted virtual images of minors engaged in sexually explicit activity, the latter of which, the Supreme Court has held, are constitutionally protected speech. 23

A government witness, Richard Kaplan, testified regarding the images retrieved from McNealy's computer that were admitted into evidence over McNealy's objections. During voir dire of Kaplan regarding the admissibility of the images, McNealy's counsel elicited testimony that Kaplan was not present when the images were taken and had no personal knowledge of how the images were taken. When asked if one of the images depicted a real person, Kaplan responded, "It looks like a real person to me," but that he had never met her. The image looked to him to be a ten- or twelve-year-old girl. When asked if it was in "the realm of possibility that this is a fake image," "a completely fake image that just looks like a real person," the witness answered, [**11] "I don't know. . . ." During cross-examination, in the presence [*865] of the jury, Kaplan similarly testified that he was not the photographer and was not present when the images were taken, but he believed the images to be those of "real girls" and "real minors." He conceded that he did not "have the ability to look at these images and tell this jury if they've been altered or not," although there was no discussion of what "altered" meant and no context from which its meaning was clear.

Based on this testimony, McNealy contends that the government did not satisfy its burden of authenticating the images. Our court 24 and other circuit courts 25 have considered and rejected similar arguments post-Free Speech Coalition. We held in United States v. Slanina that expert testimony or additional evidence, other than the images themselves, "was not required." 26 As in the present case, we noted that the defendant did not contend that any of the downloaded images "were virtual children, and not real children." 27 We concluded that "Free Speech Coalition did not establish a broad requirement that the Government must present expert testimony to establish that the unlawful image depicts a real child." [**12] 28 We agreed with the Tenth Circuit that "'[j]uries are still capable of distinguishing between real and virtual images; and admissibility remains within the province of the sound discretion of the trial judge.'" 29 We reasoned that "[t]he district court, as the trier of fact in this case, was capable of reviewing the evidence to determine whether the Government met its burden to show that the images depicted real children." 30

McNealy points to two exchanges in the record that he contends establish that neither the jurors nor the district court were capable of determining whether the images [*866] admitted at trial were of actual rather than virtual children. The first exchange was during voir dire of the venire when McNealy's counsel asked prospective jurors whether they had "the ability from past skill, training, experience, whatever, to look at a digital image and [ tell which ones have been changed, things have been altered, red eyes removed, you can figure that out by looking." No juror responded affirmatively. This question, by its own terms, inquires only about relatively minor alterations to images of actual individuals. Even if it were proper to voir dire the venire regarding expertise in discerning whether images are of actual or virtual children, an issue we do not broach today, the voir dire in this case did not elicit that information.

The second exchange on which McNealy relies occurred in chambers when McNealy argued that the question [**15] he posed to the venire, discussed above, established that the jury was incapable of distinguishing images of virtual children from images of actual children. The district court rejected this argument, but in doing so, made remarks that are quoted in the margin. 31 Later during the trial, counsel for McNealy referred to these remarks regarding the ability of jurors to discern whether the images were of actual children, arguing, "the court's already ruled on the record that it doesn't believe the jury can know that [the images were of actual minors] by looking at these images, that an expert can know that." The district court interrupted, stating, "I didn't say that, now counselor. I think you misunderstood me. I said that -- initially, in one of our conferences I believe I stated it would be a jury issue. I can see how it would be difficult, but I didn't say the jury could not do that." The district court admitted the challenged exhibits, overruling McNealy's objections to their authenticity. When the case was submitted to the jury, the district court gave a written instruction regarding the allegation that McNealy possessed a visual depiction of minors engaging in sexually explicit [**16] conduct. The written instruction directed the jury that it "must be convinced that the Government has proved . . . beyond a reasonable doubt . . . [t]hat an actual minor was the subject of the visual depiction." This same instruction was repeated three more times in connection with the other counts in the indictment.

The district court complied with the law prevailing in this and other circuits. The court admitted the challenged exhibits, which appear to be what they purported to be, images of actual prepubescent girls and young teen girls (not fully matured), engaging in various forms of sexually explicit conduct. The district court permitted the jury to determine whether the images were of actual rather than virtual children. Nothing in the record, including [*867] the images themselves, suggests that they are anything other than images of actual prepubescent children and young teenage girls engaged in what McNealy concedes is lewd and lascivious conduct. Moreover, there is no evidence in the record before us that the state of technology is such that images of this nature could have been generated using virtual children. While it remains the Government's burden to show that actual children were depicted, the images themselves sufficed to authenticate them in this regard.

We note that after the Supreme Court's decision [**18] in Ashcroft v. Free Speech Coalition, 32 Congress amended the Child Pornography Prevention Act of 1996 32 and made certain findings. 33 Congress found in 2003 that "[t]here is no substantial evidence that any of the child pornography images being trafficked today were made other than by the abuse of real children," and

[l]eading experts agree that, to the extent that the technology exists to computer generate realistic images of child pornography, the cost in terms of time, money, and expertise is--and for the foreseeable future will remain--prohibitively expensive. As a result, for the foreseeable future, it will be more cost-effective to produce child pornography using real children. 34

These findings are not evidence in a criminal trial. They do not indicate, however, a need to revisit our prior decision in Slanina, 35 even if a panel of this court had authority to do so.

The district court did not abuse its discretion in concluding that the child pornography images were authenticated under Federal Rule of Evidence 901. We similarly conclude that the district court did not plainly [**19] err, if it erred at all, in overruling McNealy's argument that admission of the child pornography images violated Federal Rule of Evidence 1002.

[HN9] Rule 1002 provides that "[t]o prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules." Rule 1003 states that a "duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original." McNealy asserts that the Government did not establish that the images were either originals or duplicates.

This argument is unavailing. The forensic imaging process produced an exact copy of the digital files on McNealy's computer, these files were then captured on DVDs, and the exhibits were printed from the DVDs. The Government presented evidence establishing the chain of custodyand the technology utilized. McNealy does not argue that the printouts were not accurate representations of the photos on his hard drive. Rather, his argument appears to be that the Gov

ernment failed to prove that the images [**20] depict actual children, an argument we rejected above and that is not pertinent to the Rule 1002 inquiry. The district court's admission of the photographic evidence did not violate Federal Rule of Evidence 1002.

Footnotes:

17 United States v. George, 201 F.3d 370, 372 (5th Cir. 2000).

18 United States v. Williams, 957 F.2d 1238, 1240-41 (5th Cir. 1992).

19 United States v. Jimenez, 256 F.3d 330, 340 (5th Cir. 2001).

20 Fed. R. Evid. 901(a).

21 Fed. R. Evid. 901(b)(1).

22 Fed. R. Evid. 1001(2) ("' [HN8] Photographs' include still photographs, X-ray films, video tapes, and motion pictures.").

23 Ashcroft v. Free Speech Coal., 535 U.S. 234, 254-56, 122 S. Ct. 1389, 152 L. Ed. 2d 403 (2002) (holding that creating, possessing and distributing virtual images of child pornography is "protected speech").

24 United States v. Slanina, 359 F.3d 356, 357 (5th Cir. 2004) (per curiam).

25 See United States v. Salcido, 506 F.3d 729, 733-34 (9th Cir. 2007) (per curiam) ("We agree with every other circuit that has ruled on the issue that expert testimony is not required for the government to establish that the images depicted an actual minor," and "there seems to be general agreement among the circuits that pornographic images themselves are sufficient to prove the depiction of actual minors.");United States v. Rodriguez-Pacheco, 475 F.3d 434, 438-39 (1st Cir. 2007) (confirming that there is no "per se rule that the government must produce expert testimony in addition to the images themselves, in order to prove beyond a reasonable doubt that the images depicted are of [**13] real children" and "the mere possibility, unsupported by evidence, that the images could have been produced by use of technology and not using real children was not sufficient to reject a lower court's ruling founded on reasonable inferences derived from experience and common sense," although there was some expert testimony in that case); United States v. Farrelly, 389 F.3d 649, 652 (6th Cir. 2004) ("Free Speech Coalition does not require the Government to do more in the context of this case than present the images to the jury for a determination that the depictions were of actual children"), abrogated on other grounds by United States v. Williams, 411 F.3d 675, 678 n.1 (6th Cir. 2005); United States v. Kimler, 335 F.3d 1132, 1142 (10th Cir. 2003) (concluding on plain error review that "[j]uries are still capable of distinguishing between real and virtual images; and admissibility remains within the province of the sound discretion of the trial judge"); United States v. Deaton, 328 F.3d 454, 455 (8th Cir. 2003) (per curiam) (observing "we have previously upheld a jury's conclusion that real children were depicted even where the images themselves were the only evidence the government [**14] presented on the subject" and holding "[h]aving viewed the exhibits, we find no plain error").

26 359 F.3d at 357.

27 Id.

28 Id.

29 Id. (quoting Kimler, 335 F.3d at 1142).

30 Id.

31 The district court stated:

I don't think any juror and very few, if any, judges, have the expertise to look at an image and make a determination as to whether or not this is a real child or this is a virtual image. I don't see how the Congress, Supreme Court or any other court can expect that of a judge or a jury; and yet the courts have said it is a jury issue.

This is an area of the law, in my opinion, that needs to be cleared up. It needs to be, because where we are here is the jury has to find that these are real children. I concede that to you and that is the law. But they don't have the expertise to do that. I don't know if anyone without special training has the expertise to do that.

And so where are we in this case? And that's an open question. I don't know the answer to it. All I know is I'm going to try to instruct this jury on the law as I understand it and give [**17] the defense latitude in cross-examination and in argument on that issue and I will consider in the next hour whether the court should be more specific in its instructions in that regard.

32 535 U.S. 234, 122 S. Ct. 1389, 152 L. Ed. 2d 403 (2002).

33 See 18 U.S.C. § 2251.

34 Id.

35 United States v. Slanina, 359 F.3d 356 (5th Cir. 2004).