NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 13a0701n.06 No. 12-5441 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,
v. J AMES L . HOL L OWAY, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE WESTERN DI STRI CT OF KENTUCKY

BEF ORE: BOG GS and SI L ER, Circuit J udg es; DOWD, District J udg e. *

PER CURI AM. J ames L

. Holloway , a fede ral prisoner, appea ls throug h counsel the judgme nt of conviction following his criminal trial. Holloway ’s trouble with the law beg an when he discussed child pornog raphy in a computer chat room with an underc over ag ent for the Nava l Criminal I nvestig ative Service , then e-ma iled the ag ent child pornog raphy

. After discovering Holloway ’s location in L ouisvill e, Kentucky , the ag ent share d her discovery with t h e Ke n t u ck y authorities, who eventua lly turned it over to the fede ral authorities. A sear ch wa rr ant was executed at Holloway ’s home and laptop computers, storag e drives, and came ras wer e seized. Fur ther ins p ec tion uncover ed child pornog raphy on one of his computers and two of his storage d ri v es . He was char g ed with transporting and possessing child

The Honora

ble David D. Do wd , United States District J udg e for the Norther n District of * Ohio, sitti ng by

desig nation.No. 12-5441

United States v. Holloway pornog raphy

. He was convicted following a jury tr i al. Although the g uidelines rang e for his sentenc e was 210 to 262 months of impris o n m en t , h e was sentenc ed to only 96 months. He appea led, and the g overnme nt cross-a ppeale d, but the g overnme nt voluntarily dismiss ed the crossappea l. We denied Holloway ’s motion for rele ase pending this appea l. I n his brief, Holloway raises three issues: 1) the district court err ed in deny ing h is motion to suppress evidenc e obtained in violation of the Posse Comit atus Act (PCA), 18 U.S. C

. § 1 3 8 5 ; 2) the district court err ed in admitting other acts evidenc e under Fe deral Rule of Evidence 404(b)( 1); and 3) the district court

err ed in re jecting his proposed jury

instruction. The P CA proscr ibes milit ary participation in civilian law enf orce ment. I n order to violate the PCA, the milit ary must pe rmea te civil la w enfor ceme nt; it is not a violation whe re the milit ary does not participa

te in the arr est, sear ch, or seizure of evidenc e. Haye s v. Hawes , 921 F.2d 100, 103- 0 4 (7th Cir. 1990). I n this case , afte r the Navy ag ent turned over the information she had o n Holloway to the civil authorities, the milit ary was not involved in the subsequent sear ch of his home, the seizure of evidenc e, or his arr est. Moreov er , n o fede ral court has held that suppression is an appropr iate re medy

for a ny violation of t he P CA. Gilbert v. United States , 165 F.3d 470, 474 n.2 (6th Cir. 1999). The statute itself provides only for a fine or imprisonment for i t s v i o lation. 18 U.S.C. § 1385. Acc ording ly , we find no err or in the district court’s denial of Holloway ’s motion to suppress the evide nce on this basis. Holloway argues that the district court err ed in admitting evidenc e that he had a file on one of his laptops explaining how to clea r an internet cache , era sing evidence of t he websites visited. He contends that this was evidenc e intended to prove his char acte r, in v i o l at i o n o f Fe d. R. -2-No. 12-5441

United States v. Holloway Evid. 404(b)( 1). Howeve r, backg round evidenc e conce rning the results of the sear ch of Holloway ’s computer does not fall under Rule 404(b). See United States v. Marrero , 651 F.3d 453, 471 (6th Cir. 2011). Moreove r, any err or was harmless. See United States v. Allen , 619 F.3d 518, 523 (6th Cir. 2010). Holloway ’s argument on this point is far fetc hed. He states that the jury could have used the statement conce rning the file on his l aptop to infer that he era sed child pornog raphy from his

came ras. Even if this somehow followed, it would n o t ch an ge the outcome of the case , as the g overnme nt did not need to prove that Holloway era sed the memory car ds on his came ras, but only that he possessed and transporte d child pornog raphy

. There fore , we find no abuse of th e b road discretion acc orded the district court in a dmitti ng this stateme nt. See United States v. Y u Qin , 688 F.3d 257, 261 ( 6th Cir. 2012). Finally , Holloway argues that the district court err ed in reje cting one of his proposed jury instructions. We revie w t h e d enial of a requested jury instruction for abuse of discretion. United States v. Adams , 583 F.3d 457, 468-69 (6th Cir. 2009)

. A re versa l will be require d on the basis of an erroneous jury instruction only wher e it is confusing , misleading , or prejudicial. United St ates

v. Harrod , 168 F.3d 887, 892 (6th Cir. 1999). Holloway argues that the district court’s instruction that require d the go v er n m en t t o prove that he “knowing ly possessed an item or items of child pornog raphy” did n o t re q u i re t h e jury to find that the items wer e in fac t child pornog raphy

. This argum ent is frivolous. Moreove r, Holl oway ’s proposed instruction that he “knowingly possessed computers c ontaining c hild pornog raphy” is not an improvement on this score

. I n summary , finding all of the issues raised on appea l meritless, we aff irm the district court’s judgme nt. -3-