# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted September 21, 2011

Decided October 4, 2011

Before

RICHARD D. CUDAHY, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

No. 10

‐ 3562

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee,

v.

JOHN C. KEITH,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Central District of Illinois.

No. 09

‐ 20072

‐ 001

Michael P. McCuskey,

Chief Judge

.

O R D E R

A grand jury returned an indictment against John Keith, charging him with one

count of distributing child pornography, 18 U.S.C. § 2252A(a)(2)(A), three counts of

receiving child pornography, id.

, two counts of possessing child pornography, id.

§ 2252A(a)(5)(B), and one count of destroying evidence, id. § 1519. A jury found him guilty

on all counts, and he was sentenced to 240 months’ imprisonment. Keith filed a notice of

appeal, but his appointed lawyer seeks to withdraw on the ground that the appeal is

frivolous. See Anders v. California

, 386 U.S. 738 (1967). Keith opposes counsel’s motion, see

C IR

. R. 51(b). We review only the potential issues identified in counsel’s facially adequate

brief and in Keith’s response. See United States v. Schuh

, 289 F.3d 968, 973

‐ 74 (7th Cir. 2002).

We grant counsel’s motion to withdraw and dismiss the appeal. NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 10

‐ 3562 Page 2

Before trial Keith moved to suppress statements that he made to law

‐ enforcement

officials during the investigation and arrest, when he admitted to downloading and sharing

illegal child

‐ pornography images through peer

‐ to

‐ peer filesharing software called

Limewire. He argued that these admissions should be suppressed because he made them

under coercive circumstances or without being advised of his rights under Miranda v.

Arizona

, 384 U.S. 436 (1966). He also sought to suppress all evidence seized by law

‐

enforcement officials. With both parties’ agreement, the district court delayed ruling on the

motion until the trial’s conclusion, a practice we find odd and do not encourage. See F ED

. R.

C RIM

. P. 12(d) (“The court must decide every pretrial motion before trial unless it finds good

cause to defer a ruling.”).

At trial FBI agents testified to using Limewire to search for internet protocol (IP)

addresses offering child pornography. Their searches uncovered an IP address belonging to

Keith’s father in Kankakee, Illinois. Kankakee police told agent Jeffrey Heinze that Keith’s

father had been seen observing children near a school bus stop. Believing that Keith’s father

might be molesting children and sharing child pornography, Heinze obtained a warrant to

search the Keith residence and seize digital media. Agents entered the residence a few days

later at 5:50 p.m. and had their attention piqued after noticing Keith in a bedroom using a

laptop. Agent Steven Evans recalled that Keith appeared nervous and responded to

questions with “suspicious” answers. Keith told Heinze that he knew the agents were there

because of “something that I was doing peer

‐ to

‐ peer” and acknowledged being the only

resident who used Limewire. Meanwhile, a detective who examined Keith’s laptop with

forensic software noticed that a file labeled “Limewire” and videos had been deleted at 5:56

p.m. Some deleted files had been placed on a USB adapter containing a memory card. When

agents confronted Keith about these files, he responded that he had deleted them after

seeing agents approaching the house. He admitted to using Limewire to search for,

download, and share child

‐ pornography images and to moving files onto a memory card,

and he acknowledged downloading 60 child

‐ pornography images that agents found on the

laptop.

Agent Greg Catey arrested Keith a year later. After receiving Miranda warnings,

Keith told Catey about using Limewire to download child pornography. Keith allowed

Catey to search his new laptop and other digital media; two months later Catey obtained a

warrant and searched and seized those materials.

At trial the government introduced 32 still images or video clips of child

pornography found on Keith’s computer equipment. Keith, who stipulated that the images

depicted child pornography, moved under Federal Rule of Evidence 403 to bar the

government from showing any more images, which he said were overly prejudicial. The

court denied the motion, explaining that the government’s presentation of the images to theNo. 10

‐ 3562 Page 3

jury was appropriately limited; ten of the images were subsequently re

‐ shown to the jury

during the testimony of a pediatrician, who identified the children as being minors.

After the government presented its case, the district court denied Keith’s motion to

suppress. The court ruled that his statements to law

‐ enforcement officials were admissible

because he was not in custody during the investigation and he had voluntarily waived his

Miranda rights during the arrest; the court also found admissible the evidence seized during

the investigation and arrest because it was based on warrants that were properly issued.

Keith subsequently moved for a judgment of acquittal, see F ED

. R. C RIM

. P. 29(c), which the

court denied.

The jury ultimately convicted Keith on all counts. He moved for a new trial based on

insufficient evidence, see F ED

. R. C RIM

. P. 33(a), but the court denied the motion. The court

sentenced Keith to the statutory maximum of 240 months’ imprisonment on each count of

distributing and receiving child pornography and destroying evidence, 18 U.S.C. §§ 1519,

2252A(b)(1), and to the statutory maximum of 120 months’ on each possession count, id.

§ 2252A(b)(2), to run concurrently.

In her Anders submission, counsel first considers but correctly rejects arguing that the

district court erred in denying Keith’s motion to suppress the materials seized during the

investigation. Probable cause to support a search warrant exists when the totality of the

circumstances known at the time would persuade a reasonably prudent person that a search

will uncover evidence of a crime. Illinois v. Gates

, 462 U.S. 213, 238 (1983); United States v.

Carson

, 582 F.3d 827, 831 (7th Cir. 2009). Such circumstances existed here: agents informed

the magistrate judge that the Keiths’ IP address was offering child pornography through

filesharing software and that local police had seen Keith’s father near a school bus stop.

Counsel next considers whether Keith could argue that the district court erred in

denying his motion to suppress statements made to agents Evans and Heinze during the

investigation because they did not read him his Miranda rights. We agree with counsel that

this challenge would be frivolous because Keith was not in custody when questioned by

both agents. A person is “in custody” for Miranda purposes when, given the totality of the

circumstances, a reasonable person would not have felt free to end the interrogation and

leave. Yarborough v. Alvarado

, 541 U.S. 652, 662 (2004). Factors relevant to this inquiry

include whether the suspect consented to speak with the officers; whether the officers

informed the suspect that he was not under arrest and was free to leave; whether there was

a threatening presence of several officers and a display of weapons or physical force; and

whether the officers’ tone of voice was such that their requests were likely to be obeyed.

United States v. Littledale,

— F.3d

—, 2011 WL 2708633, at *2–3 (7th Cir. July 12, 2011); United

States v. Snodgrass

, 635 F.3d 324, 327–28 (7th Cir. 2011). Here, Keith was not restrainedNo. 10

‐ 3562 Page 4

during his conversations with Evans and Heinze; the agents’ weapons were not drawn nor

their voices raised; and Heinze told Keith that he was not under arrest, was free to leave,

and did not have to speak if he did not want to.

Counsel also considers but correctly rejects arguing that the district court erred in

denying Keith’s motion to suppress statements made to Catey without a voluntary and

knowing waiver of his Miranda rights. A suspect’s valid waiver of his Miranda rights

requires that the “‘totality of the circumstances surrounding the interrogation’ reveal both

an uncoerced choice and the requisite level of comprehension.” Moran v. Burbine

, 475 U.S.

412, 421 (1986) (internal citation omitted); see United States v. Vallar

, 635 F.3d 271, 284 (7th

Cir. 2011). Here Catey testified that he spoke to Keith in a normal tone without drawing any

weapons, and that Keith appeared to understand his Miranda rights, did not display any

cognitive difficulties, spoke in a “very conversational” manner, and never asked to have a

lawyer present.

Counsel next considers whether Keith could argue that the district court abused its

discretion in denying his motion to bar additional child

‐ pornography images from being

shown to the jury under Federal Rule of Evidence 403. Counsel suggests that the child

‐ pornography images were overly prejudicial, especially since Keith had offered to stipulate

to their content. But offers of stipulation are not persuasive in the context of child

‐ pornography prosecutions, see, e.g., United States v. McCourt

, 468 F.3d 1088, 1091–92 (8th Cir.

2006); United States v. Campos

, 221 F.3d 1143, 1149 (10th Cir. 2000). Relevant evidence “may

be excluded if its probative value is substantially outweighed by the danger of unfair

prejudice,” F ED

. R. E VID

. 403, but evidence should not be excluded merely because it might

be “graphic or disturbing,” United States v. Kapp

, 419 F.3d 666, 667 (7th Cir. 2005). Here the

images were probative because they showed Keith’s possession of child

‐ pornography

images and his knowledge of possessing such images. Given that the government showed

the jury only 32 of the 4,242 images found on Keith’s computer—and those images were

shown for a limited time period—we would conclude, as have other circuits in similar

cases, that the court appropriately found that the risk of prejudice did not substantially

outweigh the images’ probative value. See United States v. Alfaro

‐ Moncada

, 607 F.3d 720, 734

(11th Cir. 2010); United States v. Polouizzi

, 564 F.3d 142, 152–53 (2d Cir. 2009); United States v.

Ganoe

, 538 F.3d 1117, 1123–24 (9th Cir. 2008); United States v. Morales

‐ Aldahondo

, 524 F.3d

115, 119–20 (1st Cir. 2008); McCourt

, 468 F.3d at 1091–93. We agree with counsel that a Rule

403 challenge would be frivolous.

Counsel also considers but correctly rejects arguing that the evidence was

insufficient to convict Keith of all counts charged in the indictment. We would affirm the

judgment based on the sufficiency of evidence “if any rational jury could have found the

elements of the crime beyond a reasonable doubt.” United States v. Wortman

, 488 F.3d 752,No. 10

‐ 3562 Page 5

754–55 (7th Cir. 2007); see United States v. Muick

, 167 F.3d 1162, 1166 (7th Cir. 1999). On the

child

‐ pornography charges, 18 U.S.C. § 2252A(a)(2)(A), (a)(5)(B), a rational jury could have

found sufficient evidence because witnesses testified that Keith admitted to using Limewire

to download and share child pornography, and witnesses identified images recovered from

his computers. Moreover, experts in computer forensics testified that images found on

Keith’s computers depicted known victims of child molestation and sexual abuse, and a

pediatrician opined that the persons depicted were minors. On the destruction

‐ of

‐ evidence

charge, id. § 1519, a rational jury could have found sufficient evidence because agents

testified that Keith admitted to deleting and moving files from his laptop onto a flash drive

upon seeing agents approach his house. Also, forensic evidence showed that files were

deleted from Keith’s computer just minutes after the agents’ arrival, and agents testified

that, upon entering the house, they saw Keith using his computer. Keith maintains in his

Rule 51(b) response that there was insufficient evidence for conviction because he never

made statements to agents, that other people used the computers, that any downloaded

images were accidents, and that he did not intend to destroy evidence. But a reasonable jury

could disagree, and we would not reweigh the evidence or second

‐ guess the jury’s

determinations about the witnesses’ credibility. See United States v. Green

, 648 F.3d 569, 578

(7th Cir. 2011).

Turning to his sentence, Keith asserts in his Rule 51(b) response that the district court

erred by not adequately considering his argument that he deserved a lower sentence for

providing care for his ill parents and brother. But this argument would be frivolous. His

240

‐ month sentence was already below the properly

‐ calculated guidelines range of 292 to

365 months and thus presumptively reasonable, Rita v. United States

, 551 U.S. 338, 341

(2007); United States v. Poetz

, 582 F.3d 835, 837 (7th Cir. 2009), and sentencing courts may

freely reject without discussion “stock arguments” like the one Keith made about his family

situation. United States v. Martinez

, 520 F.3d 749, 753 (7th Cir. 2008) (internal citation

omitted). At any rate, Keith mentioned his caregiving responsibilities at the end of his

allocution, and the court sufficiently explained why it would not be swayed: “Maybe you

have been a caregiver, but you sure spent a lot of time on the computer violating the law

while you were doing it.”

Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.

Keith’s motion for appointment of substitute counsel is DENIED as moot.