14-1898-cr

United States v. Killingbeck

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED

ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A

DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX 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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 5th 4 day of October, two thousand fifteen.

5

6 PRESENT: RALPH K. WINTER,

7 DENNIS JACOBS,

8 PIERRE N. LEVAL,

9 Circuit Judges.

10

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12 UNITED STATES OF AMERICA, 

13 Appellee,

14

15 -v.- 14-1898-cr

16

17 JOHN C. KILLINGBECK, 

18 Defendant-Appellant.

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20

21 FOR APPELLANT: John C. Killingbeck, pro se,

22 Fort Dix, New Jersey.

23

24 FOR APPELLEE: Lisa M. Fletcher and Steven D.

25 Clymer, for Richard S.

26 Hartunian, United States

27 Attorney for the Northern

1
1 District of New York, Syracuse,

2 New York.

3

4 Appeal from a judgment of the United States District

5 Court for the Northern District of New York (Hurd, J.).

6

7 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

8 AND DECREED that the judgment of the district court be

9 AFFIRMED. 

10

11 John C. Killingbeck, pro se, appeals from the judgment

12 of the United States District Court for the Northern

13 District of New York (Hurd, J.), convicting him of receipt

14 and possession of child pornography, see 18 U.S.C.

15 § 2252A(a)(2)(A), (a)(5)(B), and sentencing him principally

16 to a 240-month term of incarceration. We assume the

17 parties’ familiarity with the underlying facts, the

18 procedural history, and the issues presented for review.

19

20 1. Killingbeck argues that his conduct was protected

21 by the First Amendment because child pornography is

22 constitutionally protected speech. We review de novo a

23 First Amendment challenge to a criminal conviction. United

24 States v. Caronia, 703 F.3d 149, 160 (2d Cir. 2012). “[I]t

25 is settled law that child pornography is not protected

26 expressive speech under the First Amendment.” United States

27 v. Hotaling, 634 F.3d 725, 728 (2d Cir. 2011); see also New

28 York v. Ferber, 458 U.S. 747, 756 (1982). The fact that

29 Killingbeck obtained the pornographic material through

30 “Usenet”--a precursor to the modern internet--does not

31 affect the analysis. None of the statutory and regulatory

32 provisions cited by Killingbeck stands for the proposition

33 that the receipt of child pornography through Usenet is

34 immunized from criminal prosecution. 

35

36 2. Killingbeck argues that Usenet is not a means of

37 commerce and that the government therefore failed to prove

38 the interstate commerce element of 18 U.S.C.

39 § 2252A(a)(2)(A) and § 2252A(a)(5)(B). The government

40 proved the interstate commerce element by adducing evidence

41 that the hard drives on which Killingbeck stored the

42 pornography were manufactured abroad, in Thailand and

43 Singapore. “[T]he act of using computer equipment

44 manufactured outside the United States to produce child

45 pornography meets the jurisdictional requirement of

46 § 2252A(a)(5)(B).” United States v. Ramos, 685 F.3d 120,

47 133 (2d Cir. 2012). 

2
1 3. Killingbeck argues that his Fourth Amendment rights

2 were violated because the investigating police officers

3 lacked probable cause to interview him and to execute a

4 search of his computers. The Fourth Amendment is not

5 implicated simply because a police officer interviews an

6 individual; “[r]ather, a seizure takes place only when the

7 officer, by means of physical force or show of authority,

8 has in some way restrained the liberty of a citizen.” 

9 United States v. Springer, 946 F.2d 1012, 1016 (2d Cir.

10 1991) (citation, internal quotation marks, and brackets

11 omitted). There is no evidence that Killingbeck was seized

12 during his interview; his subjective belief to the contrary

13 is irrelevant. Id. The search warrant was supported by

14 probable cause: during the (recorded) interview with the

15 officers, Killingbeck admitted that he used his computer to

16 access pornographic images involving children between the

17 ages of five and eight, and had done so as recently as a

18 month prior to the interview.

19

20 4. Killingbeck argues that his Sixth Amendment right

21 to a public trial was violated because the district court

22 granted the government’s request not to display trial

23 evidence showing images of child pornography on the monitors

24 that were visible to courtroom spectators. (Those images

25 were displayed on monitors visible only to the court,

26 testifying witnesses, counsel, and the jury.) Killingbeck

27 (who was pro se at trial) did not object to the district

28 court’s ruling. 

29

30 The Sixth Amendment creates a “presumption of openness”

31 in criminal trials. United States v. Gupta, 699 F.3d 682,

32 687 (2d Cir. 2011) (internal quotation marks omitted). “The

33 public trial guarantee is not absolute, however.” Id.

34 Court proceedings may be partially or wholly closed to the

35 public if doing so would serve some overriding interest. 

36

37 A trial court’s decision to wholly or partially exclude

38 the public from a proceeding is not subject to harmless

39 error review, but may be subject to plain error review. 

40 United States v. Gomez, 705 F.3d 68, 74 (2d Cir. 2013). 

41 Because Killingbeck did not object to the district court’s

42 decision below, we review the court’s decision for plain

43 error. 

44

45 We need not decide whether the district court erred

46 because even if it did, that error was not “plain” and did

47 not seriously affect “the fairness, integrity, or public

3
1 reputation” of the trial. Id. at 76. Even assuming that

2 restricting the display of trial exhibits to the courtroom

3 audience constitutes a partial “closure” for Sixth Amendment

4 purposes, the government presents substantial reasons for

5 doing so–limiting the continuing harm to victims of child

6 pornography. Cf. Osborne v. Ohio, 495 U.S. 103, 111 (1990)

7 (“The pornography’s continued existence causes the child

8 victims continuing harm by haunting the children in years to

9 come.”). Moreover the restriction was narrow: the public

10 was not excluded from the courtroom and could see the

11 witnesses and hear their testimony. Cf. Gupta, 699 F.3d at

12 687 (exclusion of public from courtroom during entire voir

13 dire violated the Sixth Amendment). A trivial closure, even

14 if intentional and unjustified, may not rise to the level of

15 a Sixth Amendment violation. Carson v. Fischer, 421 F.3d

16 83, 92 (2d Cir. 2005) (“Even an unjustified closure may, in

17 some circumstances, be so trivial as not to implicate the

18 right to a public trial.”). On this record, we are

19 satisfied that any error by the district court was not plain

20 and did not seriously affect the fairness, integrity, or

21 public reputation of the trial. 

22

23 For the foregoing reasons, and finding no merit in

24 Killingbeck’s other arguments, we hereby AFFIRM the judgment

25 of the district court.

26

27 FOR THE COURT:

28 CATHERINE O’HAGAN WOLFE, CLERK

29

4