NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 16

- 1569

_____________
UNITED STATES OF AMERICA

v. CHRISTOPHER STEELE, a/k/a MIKE DOZOR

Christopher Steele,

App ellant

On Appeal from the United States District Court for the Eastern District of Pennsylvania (District Court No.: 2

- 14

- cr - 00 110

- 0 01 ) District Judge: Honorable Juan R. Sanchez

Submitted under Third Circuit L

. A

. R 34.1(a)

on November 7, 2016
Before: JORDAN, GREENAWAY, JR. and RENDEL L , Circuit Judges

(Opinion filed : November 29, 2016 )2 O P I N I O N *

RENDELL , Circuit Judge : Christopher Steele was convicted by a jury of charges relate d to his communication and sexual contact with a minor. He now appeals the trial court’s denial
of his motion s for judgment of acquittal and a new trial

. Because there was sufficient
evidence for a jury to convict Steele of knowingly receiving child pornog raphy, and
because the tr i a l court’s refusal to grant a new trial was not plain error , we will affirm.
I. Facts
In the sum mer of 2013, Christopher Steele began interacting with a minor on the
gay social networking cell phone application “Jack’d.” Althou gh the minor indicated he was eighteen in his Jack’d profile, in conversation on Jack’d he told Stee le that he was actually fourtee n. Shortly after the two began conversing , Steele traveled from his
residence in Delaware to the minor ’s home in Pennsylvania , where the two engaged in
oral and anal sex. After the encounter, the minor sent Steele two explicit photographs using the Jack’d app lication

. In October of 2013, the minor’s parents discovered Steele’s digital
communications with their son. They contac ted the police, who interviewed the minor. After the police’s initial investigation into the matter , the minor identified Steele in a photo array a s the man with whom he had had sexual contact

.

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitu te binding precedent.3

Police arrested Steele. Steele waived his Miranda rights, and in a videotaped
interview he admitted that he had talked with the minor on Jack’d and that he had traveled to the minor’s home where he had sex with him. He also confessed that the
minor told him he was fourteen years old before the two met in person.
O fficers t hen seized Steele’s cell phone. Forensic examination of the cell phone revealed one image of the minor with his legs spread so that his private area was exposed. Records obtained from Steele’s Jack’d account revealed a second photograph, in which the minor was wearing only underwear, positioned with his legs pulled back so that his genitals could be seen. In both pictures, the m inor’s face was visible. At trial, an FBI agent testified that cell site data showed Steele’s cell phone traveling from D elaware to the minor’s home on the morning that Steele and the minor allegedly had sex

. Steele’s mother testified that she was the subscriber for the cell phone

accou nt and that she gave Steele the cell phone. The minor testified that he had told
Ste ele he was only fourteen, that he had sexual intercourse with Steele , and that shortly
thereafter he sent Ste ele two explicit photographs using Jack’d.
A computer forensic expert testified a bout how he recover ed the two explicit images of the minor . However, h e was unable to testify in detail about how Jack’d
oper ated on differing smartphone interfaces. He also testified that only one of the two explicit photos was stored dire ctly on the cell phone’s memory.
Steele testified in his own defense. He asserted tha t twelve to fifteen people had access to his email accounts and pa s swords and that any of these individuals could have accessed his Jack’d account. He further testified that he did not recall interacting with the4

minor. Steele testified that his confession to police was a li e and that he had only
confessed to the crime to protect his ex

- partner. The jury convicted Steele of (1) using an interstate commerce facility to entice a minor to engage in sexual conduct, in violation of 18 U.S.C. § 2422 ( b); (2) int erstate travel with intent to engage in illicit sexual conduct with a minor, in violation of 18
U.S.C. § 2423( b), and (3) receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2). Steele raised two post

- trial motions: one for acquittal based o n insufficiency of the evidence on the charge of receipt of child porno graphy, and one for a new trial due to the prosecution’s allegedly improper closing remarks. In response, the District Court J udge first dismissed Steele’s motion for acquittal
based o n the sufficiency of the evidence. He pointed to evidence allowing the jury to conclude beyond a reasonable doubt that Steele knowingly received images depicting a minor engaging in sexually explicit conduct. Second, the J udge turned to the motion for a new trial

. As background: p rior to the trial, the government had moved to bar evidence of the minor’s other sexual behavior or sexual predisposition pursuant to Federal Rule of Evidence 412. Steele failed to respond ,

so the court granted the motion. At tri al, Steele attempted to ask a detective about a
conversation the minor had with Steele’s ex

- partner. Because Steele’s ex

- partner also had
sexual contact with the minor, the government successfully objected to the question
under the Rule 412 order.5

Later, after Steele testified that he had lied in the videotaped confession to protect
his ex

- partner, defense counsel reiterated in closing that Steele had confessed to the crimes to protect his ex

- partner. In rebuttal closing , the government said in reference to the ex

- partner that Ste ele “never named this person, he never gave him information, he was never called as a witness and the defense doesn’t have to do any of that, because that’s the Government’s burden at all time [sic]. ” Steele did not object to the remark at
the time it was made.
The District C ourt denied the motion for a new tri al, finding that the prosecutor ’ s remarks did not infect the trial with unfairness so as to amount to a denial of due process.
The C ou rt described the considerable evidence pointing towards Steele’s guilt. The
District Court J udge further noted that Steele himself injected his ex

- partner into the trial, and the governme nt’s response was not entirely unfair. Finally, he found that any harm from the prosecution’s brief referen ce to Steele’s ex

- partner was cured by the court’s jury
instructions before and after closing arguments

. Steele timely appealed.
II. Discussion We have jurisdiction under 28 U.S.C. § 1291. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231

. (A) Receipt of Child Pornography6

Steele first argues that there was insufficient evidence to support his conviction of receipt of child pornography , 18 U.S.C. § 2252(a)(2), 1 and thus his motion for a judgment of acquittal should have been granted.
We review sufficiency o f the evidence rulings de novo, but o ur standard of review
for even a preserved objection to sufficiency of the evidence is nevertheless “highly
deferential

. ” United States v. Caraballo

- Rodriguez , 726 F.3d 418, 430 (3d Cir. 2013) (en
b anc). The question is whether any “reasonable juror could accept the evidence as sufficient to support the conclusion of the defendant’s guilt beyond a reasonable doubt.”
Id. at 430

– 31 (quoting United States v. Coleman , 811 F.2d 804, 807 (3d Cir. 1987)). A s an appellate court, we “ ‘ must be ever vigilant . . . not to usurp the role of the jury by weighing credibility and assigning weight to the ev idence, or by substituting [our] judgment for that of the jury

. ’ ” Id. at 4 3 0 ( quoting United States v

. Brodie , 40 3 F.3d 123, 133 ( 3d Cir. 2005) )

. Under this deferential standard of review, we have no difficulty upholding the ruling below. There was significant evidence supporting Steele’s conviction , more than enough
for a jury to have conclu ded Steele know ingly received child pornography. First, the minor testified that he sent the photos to Steele via Jack’d and communicated with him

1 § 2252(a)(2) sanctions “ [a] ny person who

. . . knowingly receives, or distributes, any visual depiction using any means or facility of interstate or foreign commerce or that has been mailed , or has been shipped or transporte d in or affecting int erstate or foreign commerce
. . . if

— (A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (B) the visu al depiction is of such conduct . . . .7

on the application ; Steele confessed that he interacted with the minor on the app lication

. Second, one of the two photos was recov ered from Steele’s Jack’d account. The other
was found directly in Ste e le’s phone ’s memory

. Cf. United States v. Franz , 772 F.3d 134, 156 (3d Cir. 2014) (evidence that photo was downloaded and saved to external hard drive supported conviction for knowing r eceipt of child pornography). While Steele makes much of the fact that many other individuals had ac cess to his phone and accounts, the jury heard

— and apparently disregarded

— this evidence

. We will not substitute our judgment for theirs. See Caraballo

- Rod riguez , 726 F.3d at 4 3 0. This is especially true where, as here, clear evidence supports the jury’s conclusion: Steele’s cell phone was taken from Steele at the time of arrest, and Steele’s mother testified that she gave him the cell phone.
Steele further stresses that Jack’d was a webs ite for adults only, and thus he could not have known the minor was underage , especially given the relatively limited size of the cell phone scre en . However, his own int eractions with the minor, the nature of the photographs , and the minor’s testimony left the jury free to disagree

. Finally, Steele argues that the government did not prove that Jack’d did not automatically preserve the images on Steele’s cell phone , and thus there was insufficient evidence to support his conv iction

. While internet technology has presented thorny legal
issues with respect to crimes involving receipt of child pornography, see, e.g. , United
States v. Romm , 455 F.3d 990, 999

– 1000 (9th Cir. 2006), here we need not enter that
thicket.8

We find our r easoning in United States v. Miller , 527 F.3d 54 (3d Cir. 2008)
instructive . There, we held that a reasonable jury could have concluded that a defendant knowingly received child pornography, despite a lack of direct forensic evidence as to how t he images w ere transferred onto the defendant’s computer

. See i d. at 67

– 69. We
noted that while the defendant’s computer may have transferred the relevant files automatically onto the zip disk at one point, evidence suggested that the computer’ s user may have been re sponsible for other transfers to a zip disk

. Id. at 69

. So , too , here, despite a lack of testimony as to precisely how Jack’d functioned , there was sufficient evidence for the jury to find as it did. One of the two photo s remained on St eele’s cell phone four months after Steele and the minor met , stored in the device’s memory

. This photo had apparently been handled differently than the other photo of the minor , allowing an inference that it had been downloaded or otherwise non

passively transferred onto S teele’s phone from the Jack’d app lication

. This fact , combined with the minor’s young appearance and Steele’s personal knowledge of the minor’s age , provided more than enough evidence to support the jury’s finding. Thus, the motion for a judgment of acquit tal was properly denied. (B) Motion for a New T

rial When, as here, the defendant has failed to object to the prosecutor’s closing

re marks at trial, we review the decision declining to grant him a new trial for p l a in error.
See United States v. Hakim , 3 44 F.3d 324, 328 (3d Cir. 2003). The defendant bears the heavy burden of proving plain error. United States v.
Olano , 507 U.S. 725, 734

– 35 (1993). He must show that (1) there is “ error,” (2) that it is9

“plain,” and (3) that the error affected substantial rights

. Hakim , 344 F.3d at 328 (quotations and citation omitted )

. Even when these elements are present, the decision to
award relief still remains in our discretion. See i d. This discretion is to be exercise d when
the e rror “ ‘ seriously affect[s] the fairne ss, integrity or public re putation of judicial proceedings

. ’ ” Id. (quoting Johnson v. United States , 520 U.S. 461, 467 (1997)).
Even if Steele had raised the objection, we would grant him a new trial only if he was prejudiced by the allegedly improper re marks. United States v. He l bling , 209 F .3d 226, 241 (3d Cir. 2000). 2 “ In determining prejudice, we consider the scope of the objectionabl e comments and their relationship to the entire proceeding, the ameliorative effect of any curative instructions given, and the strength of the evi dence supporting the defendant’s con viction. ” United States v. Zehrbach , 47 F.3d 1252, 1265 (3d Cir. 1995). Accordingly , w e first consider the allegedly objectionable comments themselves

. T he C ourt’s in limine Rule 412 order ef fectively prevented Steele from giving a ny details
about his ex

- partner , who also had sexual contact with the minor . But after Steele
mentioned his ex

- partner on the stand and his counsel did so in closing , 3 the prosecution
faulted him in closing rebuttal for failing t o provide any details about the ex - partner. We need not probe the government’s comments too deeply, because to the extent they were improper , they did not prejudice Steele. C ertainly they did not “seriously affect the fairness, integrity or public reputation of judicial proceedings

. ” Hakim , 344 F.3d at

2 Where, as here, the alleged erro r is non

- constitutional, we affirm when it is “‘highly probable that the error did not contribute to the judgment.’” Helbling , 209 F.3 d at 241 (quoting Gov’t of Virgin Islands v. Toto , 529 F.2d 278, 284 (3d Cir. 1976)). 3 The District C ourt noted that Stee le’s counsel’s discussing his ex

- partner in closing was “in violation” of the Court’s Rule 412 order. J.A. 23

– 24.10

328 (quoting Johnson , 520 U.S. at 467). T he evidence against Steele was strong: a
screen shot of Steele’s communication with the minor ; testimony of the minor; evidence recovered from Steele’s phone; cell phone site data plac ing Steele at the victim’s hous e; and a videotaped confession providing accurate details of the encounter , including details not available in the affidavit of probable cause

. Further , the District C ourt gave a curative
inst ruction that the attorneys’ statements were not evi dence and the burden of proof

r ested with the g overnment , ameliorating potential harm from the prosecutor’s remarks. Under these circumstances, the District C ourt did not err

— and certainly did not plain ly err

— in declining Steel’s request for a new trial. Cf. Helbling , 209 F.3d at 241

– 42 ( significant evidence of guilt and curative instr uctions neutralized prejudice despite the prosecutor ’ s “inappropriate” and “out of line” comments )

. III. Conclusion
For the aforementioned reasons, we will affirm the D istrict C ourt’s denial of both Steele’s motion for a new trial, and his motion for judgment of acquittal.