14-1898-cr United States v. Killingbeck



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED**
**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY ORDER IN A**
**DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX OR AN**
**ELECTRONIC DATABASE (**  **WITH THE NOTATION “**  **SUMMARY ORDER ”).**  **A PARTY CITING A SUMMARY ORDER MUST** 
**SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .** 
**At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 5 th** **day of October, two thousand fifteen.** 4 5 **PRESENT: RALPH K. WINTER,** 6 **DENNIS JACOBS,** 7 **PIERRE N. LEVAL,** 8 **Circuit Judges**

**.** 9 10 - - - - - - - - - - - - - - - - - - - -X 11 **UNITED STATES OF AMERICA,** 12 **Appellee ,**  13 14 **-v.- 14-1898-cr** 15 16 **JOHN C. KILLINGBECK,** 17 **Defendant-Appellant**

**.** 18
- - - - - - - - - - - - - - - - - - - -X 19 20 **FOR APPELLANT:** John C. Killingbeck, pro se
, 21 Fort Dix, New Jersey. 22 23 **FOR APPELLEE:** Lisa M. Fletcher and Steven D. 24 Clymer, forRichard S. 25 Hartunian, United States 26 Attorney for the Northern 27

1District of New York, Syracuse, 1 New York. 2 3 Appeal from a judgment of the United States District 4 Court for the Northern District of New York (Hurd, J. ). 5 6 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 7 **AND DECREED**that the judgment of the district court be 8
**AFFIRMED**

. 9 10 John C. Killingbeck, pro se , appeals from the judgment 11 of the United States District Court for the Northern 12 District of New York (Hurd, J. ), convicting him of receipt 13 and possession of child pornography, see18 U.S.C. 14 § 2252A(a)(2)(A), (a)(5)(B), and sentencing him principally 15 to a 240-month term of incarceration

. We assume the 16 parties’ familiarity with the underlying facts, the 17 procedural history, and the issues presented for review. 18 19 **1.** Killingbeck argues that his conduct was protected 20 by the First Amendment because child pornography is 21 constitutionally protected speech. We review de novoa 22 First Amendment challenge to a criminal conviction. United 23 States v. Caronia , 703 F.3d 149, 160 (2d Cir. 2012). “[I]t 24 is settled law that child pornography is not protected 25 expressive speech under the First Amendment.” United States 26 v. Hotaling , 634 F.3d 725, 728 (2d Cir. 2011); see alsoNew 27 York v. Ferber , 458 U.S. 747, 756 (1982). The fact that 28 Killingbeck obtained the pornographic material through 29 “Usenet”--a precursor to the modern internet--does not 30 affect the analysis. None of the statutory and regulatory 31 provisions cited by Killingbeck stands for the proposition 32 that the receipt of child pornography through Usenet is 33 immunized from criminal prosecution. 34 35 **2.** Killingbeck argues that Usenet is not a means of 36 commerce and that the government therefore failed to prove 37 the interstate commerce element of 18 U.S.C. 38 § 2252A(a)(2)(A) and § 2252A(a)(5)(B). The government 39 proved the interstate commerce element by adducing evidence 40 that the hard drives on which Killingbeck stored the 41 pornography were manufactured abroad, in Thailand and 42 Singapore. “[T]he act of using computer equipment 43 manufactured outside the United States to produce child 44 pornography meets the jurisdictional requirement of 45 § 2252A(a)(5)(B).” United States v. Ramos , 685 F.3d 120, 46 133 (2d Cir. 2012). 47

2**3.** Killingbeck argues that his Fourth Amendment rights 1 were violated because the investigating police officers 2 lacked probable cause to interview him and to execute a 3 search of his computers. The Fourth Amendment is not 4 implicated simply because a police officer interviews an 5 individual; “[r]ather, a seizure takes place only when the 6 officer, by means of physical force or show of authority, 7 has in some way restrained the liberty of a citizen.” 8 United States v. Springer , 946 F.2d 1012, 1016 (2d Cir. 9 1991) (citation, internal quotation marks, and brackets 10 omitted). There is no evidence that Killingbeck was seized 11 during his interview; his subjective belief to the contrary 12 is irrelevant. Id. The search warrant was supported by 13 probable cause: during the (recorded) interview with the 14 officers, Killingbeck admitted that he used his computer to 15 access pornographic images involving children between the 16 ages of five and eight, and had done so as recently as a 17 month prior to the interview. 18 19 **4.** Killingbeck argues that his Sixth Amendment right 20 to a public trial was violated because the district court 21 granted the government’s request not to display trial 22 evidence showing images of child pornography on the monitors 23 that were visible to courtroom spectators. (Those images 24 were displayed on monitors visible only to the court, 25 testifying witnesses, counsel, and the jury.) Killingbeck 26 (who was pro seat trial) did not object to the district 27 court’s ruling. 28 29 The Sixth Amendment creates a “presumption of openness” 30 in criminal trials. United States v. Gupta , 699 F.3d 682, 31 687 (2d Cir. 2011) (internal quotation marks omitted). “The 32 public trial guarantee is not absolute, however.” Id. 33 Court proceedings may be partially or wholly closed to the 34 public if doing so would serve some overriding interest. 35 36 A trial court’s decision to wholly or partially exclude 37 the public from a proceeding is not subject to harmless 38 error review, but may be subject to plain error review. 39 United States v. Gomez , 705 F.3d 68, 74 (2d Cir. 2013). 40 Because Killingbeck did not object to the district court’s 41 decision below, we review the court’s decision for plain 42

error. 43 44 We need not decide whether the district court erred 45 because even if it did, that error was not “plain” and did 46 not seriously affect “the fairness, integrity, or public 47

3reputation” of the trial. Id. at 76. Even assuming that 1 restricting the display of trial exhibits to the courtroom 2 audience constitutes a partial “closure” for Sixth Amendment 3 purposes, the government presents substantial reasons for 4 doing so–limiting the continuing harm to victims of child 5 pornography. Cf. Osborne v. Ohio , 495 U.S. 103, 111 (1990) 6 (“The pornography’s continued existence causes the child 7 victims continuing harm by haunting the children in years to 8 come.”). Moreover the restriction was narrow: the public 9 was not excluded from the courtroom and could see the 10 witnesses and hear their testimony. Cf. Gupta , 699 F.3d at 11 687 (exclusion of public from courtroom during entire voir 12 direviolated the Sixth Amendment). A trivial closure, even 13 if intentional and unjustified, may not rise to the level of 14 a Sixth Amendment violation. Carson v. Fischer , 421 F.3d 15 83, 92 (2d Cir. 2005) (“Even an unjustified closure may, in 16 some circumstances, be so trivial as not to implicate the 17 right to a public trial.”). On this record, we are 18 satisfied that any error by the district court was not plain 19 and did not seriously affect the fairness, integrity, or 20 public reputation of the trial. 21 22 For the foregoing reasons, and finding no merit in 23 Killingbeck’s other arguments, we hereby **AFFIRM** the judgment 24 of the district court. 25 26 FOR THE COURT: 27 CATHERINE O’HAGAN WOLFE, CLERK 28 29

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