United States v. Kornhauser, 2013 U.S. App. LEXIS 5968 (2d Cir. 2013)

* Unpublished *

Metadata:

Date of Decision: 26 March 2013
Vote: 3-0
Author: Summary Opinion
Panelists: Walker, J., Wesley, J., and Droney, J.
Ruling Below: Consolidated appeals from the United States District Court for the Southern District of New York (McMahon, J. and Preska, C.J.). [Not Reported]
Subsequent Proceedings:

Facts:

[Editor’s Note: In lieu of a written decision by the District Court or a recitation by the Court of Appeals, the following facts are taken from the Government’s Sentencing Submission, filed 7 December 2011]

Kornhauser was on supervised release following a tax fraud conviction, and a search was conducted of his apartment pursuant to a condition of his release. During the search, officers observed a computer next to his bed and clicked on the “Favorites” tab of Internet Explorer. Instead of names, the bookmarks consisted of Roman numerals. When the officer clicked on several of the bookmarks, he immediately observed images of child pornography. The computer and a CD labeled “Back-up” were seized.

A forensics examination of the computer revealed that more than 700 images of child pornography had been deleted from the Internet cache of the computer, but had not yet been overwritten. The investigator also observed that Kornhauser had installed the program CleanUp!, and that it had been run shortly before the probation officers arrived for their inspection. The CD contained a copy of the “Favorites” bookmarks from Internet Explorer.

A grand jury indicted Kornhauser on 18 August 2010, charging him “unlawfully, willfully, and knowingly possessing (Count One) and receiving (Count Two) child pornography that had been mailed, shipped, and transported in interstate and foreign commerce, in violation of Title 18, United States Code, Sections 2252A(a)(5)(B) and 2252A(a)(2)(A). After trial, he was convicted by a jury on both counts on 4 November 2010.

Issue:

Kornhauser raised four issues on appeal:

A) The trial court erred by allowing the government to show images of alleged CP to the jury, despite Kornhauser’s contention that there was no dispute as to the nature of the images. Kornhauser argued that the display was unduly prejudicial.

B) The trial court refused to allow Kornhauser to testify about an uncle’s “history of problem[atic] sexual behavior,” which Kornhauser claims would support his argument that the uncle downloaded the CP to the computer.

C) The trial court rejected Kornhauser’s preferred jury instruction.

D) The evidence was insufficient to support conviction.

Rule / Analysis:

A) In other cases, the 2d Circuit has endorsed the admission of CP images even when a defendant has stipulated as to their nature. See, e.g., United States v. Polouizzi, 564 F.3d 142, 152-153 (2d Cir. 2009). Here, the trial court assessed whether the probative value of the images was substantially outweighed by their prejudicial effect, and was justified in admitting them.

B) Evidence of a third party’s alleged guilt for the alleged offense(s) “may be excluded where it … is speculative or remote” as the charged crime(s). Holmes v. South Carolina, 547 U.S. 319, 327, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006). Here, the trial court was within its discretion to reject Kornhauser’s proffered testimony, given the risk of undue jury confusion and lack of relevance.

C) When challenging a trial court’s jury instruction, a defendant “‘must show that his proposed charge accurately represented the law in every respect, and that the charge actually given, viewed as a whole, prejudiced him.'” United States v. Archer, 671 F.3d 149, 158 (2d Cir. 2011) (quoting United States v. Feliciano, 223 F.3d 102, 116 (2d Cir. 2000)). In this case, the district court’s instructions clearly explained to the jury that the government was required to “prove beyond a reasonable doubt that the defendant. . . was aware that he had received or attempted to receive the visual depiction that constitutes child pornography.” Kornhauser was not prejudiced by the instructions.

D) Automatic downloading of CP images to an Internet cache can constitute “knowing receipt” where a defendant demonstrates an awareness of the likelihood that CP was downloaded by attempting to delete the Internet cache.  United States v. Ramos, 685 F.3d 120, 132 (2d Cir. 2012). Given that Kornhauser viewed over 700 CP images, and installed a program to regularly sweep his cache, it was reasonable for the jury to conclude that he had “knowingly” received CP on his computer.

Holding:

The judgment of the District Court is affirmed.