NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0315n.06 No. 10-2188 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

United States of Amer ica, Plaintiff-Appellee ,
v. Armando F elix Trejo, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ON AP P E AL FROM THE UNI TED STATES DI STRI CT COU R T FOR THE EASTERN DI STRI CT OF MI CHI GAN

BEF ORE: SI L ER, ROGERS, and W HI TE, Circuit J udg es. ROGERS, Circuit J udg e. Armando Trejo appea ls from his conviction of transporta tion and possession of child pornog raphy

. His arguments are many , but ultimately all are u n av ai l i n g. His pare nts had appar ent authority to consent to the sear ches and seizures of the family computers wher e police found much of the ev i d en ce at trial, and the district court did not err in finding that their
consent was lawfully g iven. The admission of arguable other-a cts evidence — consisting of the

acc ount rec ord of one of Trejo’ s Americ a Online acc ounts and a partial chat — was not plain err or and did not aff

ect Trejo’ s substantive rig hts. Nor has Trejo shown any pu rposef ul acts by the Gover nment that could rise to the level of prosec utorial misconduct. The opinion testimony g iven by two of the Gover

nment’s witnesses was offe red to clar ify their other testimony , and in any event did not aff

ect Trejo’ s substantive rig ht s . Fi n al l y , Trejo failed to object to testimony reg arding aNo. 10-2188

United States v. Armando Trejo question Trejo’s f

ather asked police during the sea rch of the computer s, and so whethe r or not the question constituted impermissibl e hea rsay , it was not plain err or to admit it. I

. Searc h and seizure of

the family

computers I n J uly 2008, law enfor ceme nt officia ls trac ed imag es of chil d pornog raphy found on a computer in St. L o u i s t o Am er ica Online (AOL ) email acc ounts opened with the cre dit car d of Armando Trejo. On J uly 17, 2008, two plainclothes police office rs went to Trejo’ s home, wher e he lived with his pare nts Ray mond and Rose Trejo, to speak with him. Armando Trejo was not home, but Ray mond Trejo was. The office rs identified themselves and said they wer e looking for Armando Trejo and following up on a lead about inappropriate imag es being sent from the house. Ray mond Trejo responde d by asking if it was child pornog raphy , to whi ch the office rs responde d y es. Ray mond Trejo showed office rs the family computer in the dining room. Whether Ray mond Trejo
consente d to a sear ch and seizure of the computer is disputed, but office rs did so, and ultimately found 88 imag es of child pornog raphy and 188 imag es of child erotica on the computer under Armando Tr ejo’s user

acc ount. The user

acc ount was not password pr otected. More than a y ear later, on Aug ust 27, 2009, office rs returne d to the Trejo residenc e to arr est Armando Trejo. They noticed that a new computer sat in the dining room, and asked Rose Trejo if they could s ear ch it

. Ag ain, whether R ose Trejo lawfully consente d to the s ea rc h i s d i sputed, but office rs did conduct a preliminary sear ch by clicking on the icon that acc essed Armando Trejo’ s user

acc ount. The acc ount w as ag ain not pr otected by a password, and almost immediately the office rs

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United States v. Armando Trejo

found photos of Armando Trejo in various states of undress

. The office rs told Rose Trejo they would need to remove the computer. Offic ers ultimately found 3011 imag es of child pornog raphy and 175 imag es of c hild erotica, dow nloaded on 21 se parate occ asions. Trejo was char g ed with seven counts of transporta tion of child pornog raphy in violation of 18 U.S.C. § 2252A(a )(1) and one count of possession of child pornog raphy in violation of 18 U.S.C. § 2252A(a )(5) (B ). Trejo moved to suppress the evidenc e retrie ved from the computers, arguing that neither of his pare nts had the authority to consent to the sear ches and seizures, and even if they did, they did not lawfully consent. The district court denied the motion. I t fo u n d that both Rose and R ay mond Trejo had appar ent authority to consent to the sear ches, g iven the place ment of t h e computer and lack of password on Armando Trejo’ s computer user acc ounts. The district court also held that both pare nts had lawfully consente d to the sear ches a nd seizures. Trejo’ s trial was conducte d over five day s, beg inning April 21, 2010 and conc luding Apr il 27, 2010. This appea l require s a foc us on the testimony of three individuals:

J usty na Kilbourne ’s testimony , Ex hibit 9A, and surrounding prosec utorial conduc t J usty na Kilbourne, a senior criminal investigator with AOL , testified for the Gover nment on April 22, 2010. The decision to include Kilbourne’s testimony was made just prior to trial. On April 16, five day s befor e the trial beg an, the Gover nment serve d a sear ch war rant on AOL for additional

rec ords reg arding Armando Trejo. That information arrived on A pril 20, 2010, at which point the Gover nment sent copies of it by overnig ht Fe dEx to Trejo’ s co u n sel, and sent an email notify ing

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United States v. Armando Trejo Trejo’ s counsel to expect the documents. For unclea r rea sons, the packe t was not rec eived until afte r trial. Kilbourne testified that AOL monitors acc ounts for transmission of child pornog raphy , and does so by having a databa se of imag es identified as child pornog raphy , assembled by profe ssionals, throug h which all emails are automatically filtered. Such imag es ar e automatica lly remove d from the sy stem and ref

err ed to the National Center of Eliciting Ex ploited Children. Kilbourne testified that ac co unt aaa

tf456 was opened on Fe bruar y 20, 2008, at 12:01:49 am EST with Trejo’ s cre dit

car d, and that on that same day at 4:06:06 am EST the sy stem caug ht an illega l imag e, and so AOL terminated the acc ount at 6 : 0 5 am on Fe bruar y 21, 2008 for “g raphic file imag ing.” The acc ount history for acc ount aaa

tf456 was enter ed as Ex hibit 9A with no objection. Kilbourne testified that another acc ount, aaf

fttttt234, was opened and quickly terminated for the same rea son. On redire ct, Kilbourne testified that she had specific knowledg e of why AOL acc ounts aaa ft456 and aaf fttttt234

wer e ter minated, and that wa s “an illega l g raphic transfe r.” When a sked whether that meant child pornog raphy , she re sponded “c orre ct.” The next day , counsel for Trejo objected to Kilbourne’s testimony

. Trejo’ s counsel said that he had r ece ived inadequa te notice a

nd discovery

about Exhi bit 9A, which had not appea red in the exhibi t list proff

ere d the first day o f t ri al (thoug h it was included in the trial materia ls), and inadequate notice about the nature of Kilbourne’s testimony

. Counsel also objected on Fe d. R. Evid. 404(b) g rounds. The district c ourt asked counsel for Tr ejo “what do y ou want me to do,” “ tell me what y ou want,” to which counsel replied “I want an explanation.” Counsel for the Gover nment then

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United States v. Armando Trejo explained the proce ss b y wh i ch they came to the information and that they had in fac t sent it to Trejo’ s counsel. The district c ourt conclude d that g iven that the witness had alre ady testified, and that there was no evidenc e that Gover nment counsel had not done what they could to make counsel for Trejo awa

re of the late addition, t h ere was not much else to be done. The district court continued: “it seems to me that the communication betwee n counsel could be better here

. I t seems to me that we could have had 9A listed aff irmatively in a witness list and provided by hand to the lawy er befor e we went throug h the witness.” The district court said it sy mpathized with counsel for Trejo a nd told him t o take a ction: I f y ou want me to strike the evidenc e afte r the fac t; if y ou want me to d ec l are a mistrial; if y ou want me to repor t the prosec utors to the State Ba r; if y ou want me to find in favor of y our client and dis miss the ca se, I ’ll consider a ll that stuff, but y ou have to file a piece of paper with authorities for m e t o d o that befor e I can do any thing. Counsel for Trejo made no such filing. The following wee k, the district court instructed counsel that due to the uncer

taint y s u rrounding the evidenc e, Ex hibit 9A should only be used “as evidenc e of

owner ship of the rele vant acc ounts and the rele vant information contained on the computer and not to ar gu e this to the jury as a separ ate crime or separ ate bad act that would impact the defe ndant’s knowledg e.”

Testimony

of Jerry Der osia and Exhibit 27 J err y Der osia, a fore nsic computer examiner who extracted a number of files from the computers, testified for the Gover nment on April 23rd and 26th. Der osia testified that he found

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United States v. Armando Trejo
3,011 imag es of child pornog raphy on Trejo’ s computer, an d explained that “[c]hil d pornog raphy that I ’m looking f

or ar e any naked, pa

rtially naked c hildren that ar e eng ag ed in any kind of sex ual activity , that have their g enitalia exposed or are having s ex with adults or other children or perf orming sex acts.” He also testified that imag es of child erotica wer e of evidentiar y signific ance for him, and whe n asked w hat child er otica wa s, said the following : Child erotica in the state sy stem we have what’s called child sexually abusive materia l which we — that would be ou r level of child pornog raphy in the state sy stem which is differ ent than the fede ral sy stem.

. . . The child erotica doesn’t rise to the level of that child sexually abusive nature of the pictures. What they will be is something that can be considere d as artistic to some. Th ey wo uld be pictures of a nature that wer e either clothed or partially clothed children that might not be of a sexual nature but still m ay show them not in a sexual light but in another na ture. Der osia testified that he found 175 such imag es on t h e co m p u ter. The Gover nment then had a picture from the computer that Der osia said he would char acte rize as child ero t i ca admitted into evidenc e. During Der osia’s testimony , the Gover nment introduced Ex hibit 27, which was an excerpt of a c hat found on the computer. The chat was betwee n an unknown individual a nd AOL acc ount

aaatf456 (whose acc ount history had been introduced during Kilbourne’s testimony as Ex hibit 9A), and wa s a g raphic discussion about perf orming sexual acts with y oung children. Der osia testified that he found the chat in the computer’s pag e file sy stem, but could no t l i n k i t t o a particular user

acc ount on the computer. Counsel for Trejo did not object at the time, but did so at a rec ess shortly afte r the exhibi t was introduced. The Gover nment explained that “[t] he purpose of the entry of this exhibi t is to show that a scr een na me that has be en connected to the defendant had a conversation

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United States v. Armando Trejo involving the sex ual exploit ation of childre n.” The district court found the ex hibit to be evidence of other acts, and that “it’s being offe red to tie in Mr. Trejo’ s k n owledg e and owner ship of the

acc ount on which it was found on the se cond computer .”

Testimony

of De tective B rian re g arding Ray mond Trejo’s que stion Finally , Detec tive J oe Br ian, who was among the g roup who went to Trejo’ s house for both seizures, testified. During his testimony , he recounted his co n v er s ation with Ray mond Trejo that had occur red on J uly 27, 2008, including Ray mond Trejo’ s asking whether the police wer e looking for c hild pornog raphy . Counsel for Tre jo did not object during the testimony

.

The jury found Trejo g uilty of all eig ht counts of the indictment, and he was sentenc ed to 210 months’ imprisonment and five y ear s of supervised rele ase. Trejo timely appea led his c onviction.

I I

. A. Sear ch and se izure of the fa mily computers The seizures and subsequent sear ches of the two computers in the Trejo residenc e’s dining

room on J u l y 17, 2008 and Aug ust 27, 2009 wer e lawfully perf ormed. Both Ray

mond and Rose Trejo had appar ent authority to consent to the seizure of the computers. The computers wer e in the dining room, both Ray

mond and Rose Trejo had acc ess to them and in fac t used them regularly , and th ey p ai d the internet connec tion bill. We have held in simil ar case s involving computers in

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United States v. Armando Trejo

residenc es with other family members that appar ent authority is established by fea tures like location and use. For example, we held that a defe ndant’s wife had appar ent authority to consent to a seizure of the family computer wher e “the computer was located in a co m m o n ar ea t o which [she] had complete acc ess, and she indicated to the office rs who came to her home that she had acc ess to and used the computer and that she and the Def endant did not have individual usernames or passwords.” United States v. Morgan , 435 F.3d 660, 663 ( 6th Cir. 2006). The fac t that Armando Trejo had an individual user profile on the computer does not chang e his pare nts’ appar en t au t hority beca use the profile was not password protec ted. The key to an authority assessment is the conse nter’s a cce ss to and use of the item in question: The au t h o ri t y which jus tifies the t hird-par ty consent .

. . rests rather on mutual use of the proper

ty by persons g ener ally having joint acc ess or control for most purposes, s o that it is rea sonable to rec og nize that any of the co-inha bitants has t h e ri gh t t o permit the inspection in his own rig ht and that the others have assumed the risk that one of the ir number mig ht permit the common are a to be se arc hed. United States v. Matlock, 415 U.S. 164, 171 n.7 (1974); see also Illinois v. Rodriguez , 497 U.S. 177, 188 (1990). Whil e t h e ex i s tence of user profiles on a computer does sug g est an expectation that g ener ally only that particula r per son will have re ason to ac cess the c ontent saved to that profile, it is rea sonable to understand that other family members may have occa sion to acc ess profiles without passwords on a g ener al-use family computer. I f a user chooses not to prot ec t a profile with a password or otherwise indicate an intention to restric t third-par ty acc ess, a rea sonable office r could conclude that other fa

mily members have author ity

to consent to its searc h.

- 8 -No. 10-2188

United States v. Armando Trejo Although we have nev e r c o n f r o n te d th e p r e c is e s it

u a ti o n here of non-passwor d-protec ted user profiles, in United States v. Aaron , 33 F. App’x 180, 184 (6th Cir. 2002), we conclude d that though the defe ndant owned the computer in question, his live-in g irlfrie n d h ad au t hority to consent to a

sear ch of it beca

use the defe ndant never forba de her from acc essing it, and did n o t “restrict[] her

acc ess wit h password protections.” Othe r circ uits have also emphasized that it is the ex istence of the password that el i m i n at es apparent authority to consent to computer file sear ches. See, e.g. , United States v. Stanley , 653 F.3d 946, 950-51 (9th Cir. 2011); Trulock v. Freeh , 275 F.3d 391, 403 (4th Cir. 2001). The dist rict court corr ectly pointed out that from t h e st andpoint of gene ral social expectations, a user profile with no password is not the equivalent of a “kee p out” sign, or otherwise an indication that other s do not have a cce ss to the profile and its conte nts: A user may choose to cre ate a user profile — instead of using another ’s profile — for purposes of saving his or her pref err ed set t i n gs in order to avoid having to rec onfig ure them eac h tim e t h ey u s e the computer afte r another has used it or chang ed t h e s et t i n gs. Or, a user may do so in order to have a personal photogr aph saved as the desktop backg round. Other rea sons exis t as well. These rea sons would not indicate, by themselves, an intent to exclude others from using or acc essing the profile. I f a user of a communal computer wants to limit the acc ess of other co-use rs, he may do so with a password. See, e.g., United States v. W a l l er , 4 2 6 F.3d 838, 843-44 (6th Cir. 2005) (discussing individual’s expectation of privac y

). Under these circ umstances, it was entirely rea sonable for the detec tives to conclude that Armando Trejo had allowed other users of the hous eh o l d ’s computer acc ess to his profile. There was no ambig uity in the question of Ray mond or Rose Trejo’ s appar ent authority that would nece ssitate further inquiry on the part of the office rs. “[I ]f the circ umstances make it unclea r - 9 -No. 10-2188

United States v. Armando Trejo

whether the proper

ty about to be sear ched is subject to mutual use by the person g iving consent, then

war rantless entry is unlawful without further inquiry .” W aller , 426 F.3d at 846 (interna l quotation marks omitted). Trejo sug g ests that Ray mond Trejo’ s acknow ledg ment that he owned an additional laptop, and his inquiry as to whether the detec tives wer e looking for child pornog raphy , cre ated such ambigu i t i es , b u t we do not see how they would. Trejo also argues that Rose Trejo’ s hesitance to consent to the seizure cre ated ambig uity , but in this he mix es the issue of appar ent authority with that of lawful consent. Nothing about the circ umstances of this case cre ated an ambig uity nece ssitating further inquiry , and based on the fac ts of this case , it was not unrea sonable for the office rs to believe that Trejo’ s pare nts had authority to consent. Illinois , 497 U.S. at 188. I n addition, the district court’s finding that Ray mond and Rose Trejo both lawfully consente d
to the seizures was not clea r err or. I n both situations, detec tives who wer e at the house testified that Ray mond Trejo on J uly 17 and Rose Trejo on Aug ust 27 verba lly consente d to having the computers taken. Although Ray

mond and Rose Trejo testified at the suppression h ea ri n g t hat they did not fre ely consent to the sear ch, but rathe r rema ined silent and felt t hey had no choice but to let the detec tives take the computers, the district court could weig h the fac ts and cre dibilit y of the witnesses and come to the conclusion that it did. “F indings of fac t anchor ed in cre dibilit y assessments ar e g ener ally not subject to reve rsal upon appellate revie w.” United States v. Taylor , 956 F.2d 572, 576 (6th Cir. 1992). The district court’s opinion shows that the district court we i gh ed the testimony

car efully , and also took into acc ount the fac t that the detec tives wer e in plainclothes and that parties ag ree d that the encounte r was conducte d in a calm and respe ctful manner , which lessens the potential

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United States v. Armando Trejo

for intimi dation. The conclusion that the Trejo pare nts consente d to the seizures, and that their
consent wa s fre ely

g iven, is not clear ly

err oneous.

B. Te stimony

reg ardingEx hibits 9A and 27 as other a cts testimony The district cour

t did not commit plain err or in admitting Kilbourne ’s testimony reg arding Ex hibit 9A, the acc ount history of aaa tf456. There wer e a number of permissible uses under Fe d.

1 R. Evid. 404(b) for which the testimony could have been enter ed, including proof of owner ship, which was the reas o n ev en t u ally adopted by the district court. Although counsel for Trejo did

s t i p u l at e t hat t he accounts at issue wer e his , his main defe nse i s that someone else sent the i lleg al imag es over them. Ex hibit 9A was introduced to argue ag ainst this defe nse. The exhibi t shows that

a prohibited imag e was transfe rre d over one of Trejo’ s acc ounts a m er e fo ur hours afte r it was opened, at 4 am. The allowable inf ere nce f rom such evidenc e was that the acc ount w as in T rejo’s sole control when the imag e was transfe rre d and that the transfe r took place at an unlikely time for others to be awa

ke. Stipul ations cannot exclude the bedroc k of the Gover nment’s case: “t he prosec ution is entitled to prove its case fre e from an y defe ndant’s opti on to stipulate the evidence

awa y .” Old Chief v. United States , 519 U.S. 172, 189 (1997).

Trejo’ s objection occur

red well afte r Kilbourne’s testimony , and consisted of some unclea r 1 statements amid a much longe r objection reg arding insufficient notice . Given the muddled nature of the objection, and beca use it wa s not ma de contempora neously , we revie w only for plain err or. See U nited States v. McCaskill , 202 F. App’x 70, 76 (6th Cir. 2006) (citing United States v. Lev y , 904 F.2d 1026, 1030 ( 6th Cir. 1990)). - 11 -No. 10-2188

United States v. Armando Trejo

Ex hibit 27, the partial chat, prese nts a s o m ew h at more difficult case for sever al rea sons: Trejo’ s attorney objected to it closer in time to its admission (thoug h still not contempora neously ); it is harde r to arg

ue that its admission was for a proper purpose; and the chat is potentially more prejudicia l than the acc ount rec ord beca us e it is q u a li tatively differ ent than other evidenc e prese nted. Ultimately , howeve r, admission of t h e ch at cannot be shown to have aff ecte d Trejo’ s substantive rig hts. The district court g ave the jury a limit ing instruction, and a chat about sexual rela tions with children is no more inflammatory than the g raphic photogr aphs of child pornog raphy shown to the jury

. Trejo’ s counsel also had the opportunity to reda ct sections of the chat befor e it wa s shown to the jury

. We have held that the harmlessne ss of an err or must be measure d by “what the err or meant to [t he jury ], not single d out and s t an d ing alone, but in rela tion to all else that happene d.” United States v. Cowart , 90 F.3d 154, 158 (6th Cir.1996) (citations and quotations omitted). Take n in the
context of the trial as a whole, and in light of the overw helming evidenc e that linked Trejo with the

acc ounts, any potential err or in the admission of the chat was harmless. We also observe that Trejo’ s defe nse that someone else was using his acc ounts was no less consistent with the chat than with the pictures.

C. Accusations of prosecutor ial misconduct Trejo has failed to explain how the prosec ution’s conduct in connec tion with the AOL

acc ounts and testimony by Kilbourne constitutes prosec utorial misconduct. Trejo’ s brief lists a number of inactions on th e p ar t of the prosec ution that Trejo’ s counsel claims indicate a willful

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United States v. Armando Trejo

campa ign of delay

and conc ealment desig ned to take him by surprise, but he offe rs no evidenc e as to why such actions could not be understood as those of a busy trial team in the thick of last-minute prepa rations. Trejo has shown no impropriety on the part of prosec ution, which is the main showing neede d for a prosec utorial misconduct deter mination. See United States v. Carter , 236 F.3d 777, 783 (6th Cir. 2001). For example, Trejo’ s brief fi rs t contends that notice about the AOL acc ounts should have been g iven ear lier, on April 16, 2010, when the sear ch war rant for the rec ords was first reque sted. I t is a judgme nt c all as to w hether to a lert opposing counsel to a sear ch wa

rra nt reque st be fore one knows the results. On the fac ts here , no violat i o n o f Fed. R. Civ. P. 16(c) ’s continuing duty to disclose has been shown. Second, though t he Government sent copies by overnig ht Fe dEx of t he AOL rec ords and emailed Trejo’ s attorney that it had done so on the s ame day it rec eived them, Trejo’ s counsel complains that the email was “late” at 4:45 pm of the day in question, and he did not

rec eive the materia ls until af t er t he trial. Trejo’ s brief argues that g iven the importance of the evidenc e, opposing counsel should have made “per sonal or telephone contac t” with Trejo’ s counsel, confirme d rec eipt of the F edEx packag e, che cked on the packa g e’s status, etc ., and their fa ilure to do so indicates a purposef u l ef fort to keep him in the dark. Whil e such actions may have been
courte ous, it is unrea listi c to require them in light of all the tasks s urrounding trial prepa ration; indeed, their omission can hardly const i t ute bad faith. Third, Trejo’ s counsel contends that the Gover nment “hid” the new evidenc e by first failing to list it on the exhibi t list g iven to the court on the first day of trial, April 21, and then not including “ame nded” at the top of the updated exhibi t list

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United States v. Armando Trejo

circ ulated on April 2 3

. Aga i n , s uch actions are just as easily attributable to oversig ht as to malevolenc e. As the district c ourt put it: [T] he fac t that something is omitted from an exhibi t list, the fac t that a n exhibi t list is amende d and the fac t that evidenc e is obtained during trial and p ro v i d ed is something that happens. Now, I don’t know the prosec utors intimately , but I do know t h at b as ed o n their conduct here and in other case s, they are not the ty pe of people who would try to, quote/unquote, g et any thing by a defe nse attorney

. I n fac t, I think the rec ord is reple te with g ood-fa ith eff orts of the g overnme nt to comply with all discovery

. Wit hout more than ba

re a ccusations, there ca

nnot be a showing of prose cutorial misconduct. This is not an instance of a compl et e fa i l u re to disclose like that encounte red in Brady v. Maryland , 373 U.S. 83 (1963), an d s ubsequent case s finding misconduct wher e evidenc e was deliberately suppressed and never provided. This case is not even like United States v. W heele r , 391 F. App’x 452, 454 (6th Cir. 2010), wher e the prosec utor failed to turn over an entire box of evidenc e prior to trial, only rea liz ing the issue and corr ecting it on the second day of trial. Even there , we held that beca use the defe ndant “fa iled to show both that the omission was purposef ul and that there was

a rea sonable probability that disclosure of the evidenc e would have chang ed the result of the proce eding ,” no misconduct occur red. Id. Whil e the evidenc e containe d i n E x h i b i t 9A was power ful, in this case fault for the failure of the evidence to arr ive i n a ti mely fashion pre sumably lay with Fe dEx , not with the Gover nment. Counsel for Trejo was in just as g ood a position to chec k in with FedEx as to why

the documents ha d not arrive d when they wer e supposed to. The district court found no bad faith on the part of the Gover nment, and did what it could in the midst of trial to mitigate the adver se eff ect of the evidenc e’s admission. Any additional prejudice

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United States v. Armando Trejo resulting from the p ro s ec u t i o n’s conduct could have been mitigated had Trejo’ s lawy er taken appropr iate action. When Trejo’ s lawy er expl ained the situation to the district court, the court sy mpathized with his plight, but told him that he neede d to file some sort of motion explaining what relief he sou gh t at t h at l at e point. Trejo’ s lawy er did not do so, instead opting to continue complaining without offe ring any solution for how to reme dy the issue. I n the fac e of such inaction at the cour

t below, now is not the time to provide a r emedy for c ounsel’s complaints.

D. L ay testimony

of Jerry Der osia and Just y

na Kilbourne I t was not plain err or for the district court to admit the unobjected- to testimony of J err y Der osia reg arding child erotica beca use he discussed it minimally , and only as a method to explain his other testimony

. Fur ther, even if Der osia’s testimony on child erotica s h o u l d n o t h ave been admitted, it did not aff

ect Trejo’ s substantial rig hts to due proce ss, a require ment for reve rsal under plain err or. See United States v. Evans , 883 F.2d 496, 499-500 (6th Cir. 1989). Testimony reg arding child erotica and the admission of a sample photogr aph undoubtedly had littl e, if any , impact in the fac e of e vidence of undisputed child pornog raphy

. Admission of Kilbourne’s testimony reg arding child pornog raphy was simil arly not plain

err or, beca

use taken in context it is evident that she was not expressing an opinion reg arding the pornog raphic content of the imag es in question. She explained multipl e times during her testimony that imag es of child pornog raphy wer e tag g ed automatically by AOL ’s sy stem and remove d, and the associate d acc ounts te rminated. He r labeling the imag es child pornog raphy was simply shorthand

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United States v. Armando Trejo

for this automatic proce ss conducte d by the sy stem itself

. Al t houg h Trejo’ s brief claims that Kilbourne testified that she saw the actua l pornog raphic imag es, that asser tion is far from clea

r from the trial transc ript: [Kil bourne] Does AO Lhave a ny imag es in their possession rig ht now? [C ounsel] Yes. [Kil bourne] Reg arding ? [C ounsel] Reg ardingthis investigation. [Kil bourne] Yes, we have doc umentation. [C ounsel] You have some imag es? [Kil bourne] Do we ha

ve – we keep a

rec ord of e very

thing that we turn over to law enf orce ment. [C ounsel] Has that be en turne d to any one? [Kil bourne] To law e nforc ement, y es. [C ounsel] Do y ou have the actua l what y ou believe a re tra nsmissi on times of these imag es? [Kil bourne] Yes. [C ounsel] Okay . That’s a ll I want to know. Even if one does rea d the transcr ipt testimony to mean that Kilbourne saw the imag es, the rest of her testimony confirms that her statement that the imag es transfe rre d by the acc ounts in question wer e child pornog raphy was primarily based not on h er p ersonally seeing the i mag es, but from reading the rec ords produce d automatically by the sy stem. Under such circ umstances, one cannot fault the district court for al l o wi n g the t estimony

. Ag ain, even if it was admitt ed erroneously , its potential for ha rm was so minimal that there is no g round for reve rsal.

E. Ray mond Trejo’s que stion as potential hear say Finally , it was no t p l ai n err or for the district court to admit Detec tive Br ian’s testimony reg arding his conver sation with Ray mond Trejo when Trejo failed to object to it at trial. See Evans ,

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United States v. Armando Trejo

883 F.2d at 499 (re citing standard)

. Detec tive Br ian testified that when he told Ray mond Trejo that he wa s at the house looking for his son, Arma ndo, and followingup on a lea d about inappropr iate imag es being sent from the house, Ray mond responde d by asking if it was child pornog raphy

. Even if Ray mond Trejo’ s comment constituted impermissible hear say , the issue was ambig uous enoug h that it wa s not c lear err or to a dmit it. We ha ve rec og nized that “ a question is ty pically not he arsa

y beca use it does not asser

t the truth or falsity of fac t.” United States v. W right , 343 F.3d 849, 865 (6th Cir. 2003). I t is not i mmediately clea r fr om Ray

mond Trejo’s que stion what, if any thing, is being

asser ted. I n United States v. Gree n , 548 F.2d 1261, 1267 (6th Cir. 1977) , we declined to reve rse a conviction beca

use of an all ega t i o n o f hear say when the application of the rule was ambig uous: “Given the ambig uous content of the s tatements and their decidedly nonasse rt ive t one, we cannot say that their evidentiary use ag ainst the dec lara nt as admissions impi ng ed upon substantial rig hts which he enjoy ed at trial.” I n Preferred Properties, Inc., v. Indian River Estates, Inc. , 276 F.3d 790, 798 n.5 (6th Cir. 2002 ), we rea ched a s imilar conclusion, t hat admis sion of evidence presenting a close leg al question reg arding hear say did not constitute plain err or. Ray mond Trejo’ s question in this case c an be unde rstood in a number of way s, at least some of which may not have c onstitut ed hear say . I t was not plain err or for the district court to admit it.

I I I

. We affir m the judgme nt of the district court.

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