NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

 v.

JOSEPH NGUYEN,

Defendant-Appellant.

No. 17-50062

D.C. No. 

3:13-cr-03447-MMA-1

MEMORANDUM*

Appeal from the United States District Court

for the Southern District of California

Michael M. Anello, District Judge, Presiding

Argued and Submitted July 12, 2018

Pasadena, California

Before: IKUTA and N.R. SMITH, Circuit Judges, and McNAMEE,** District

Judge.

 

Joseph Nguyen appeals his conviction for one count of possession of child

pornography. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. 

FILED

JUL 24 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Stephen M. McNamee, Senior United States District

Judge for the District of Arizona, sitting by designation.
1. Discovery. Nguyen sought to discover information that could only be

used to (1) find a basis for a motion to suppress; or (2) defend against the

distribution charge at trial. The district court did not abuse its discretion by

denying Nguyen’s motion for discovery. First, Nguyen failed to bring the motion

in a timely manner. Under Federal Rule of Criminal Procedure 12(c), the district

court may establish deadlines for pretrial motions. It was not an abuse of discretion

to deny a motion for evidence to support an untimely motion to suppress. 

Second, the Government dismissed the distribution charge before trial. Thus,

the information (regarding the software the Government used to discover that child

pornography had been downloaded at his IP address) was not material to the

remaining possession charge. See Fed. R. Crim. P. 16(a)(1)(E)(i) (requiring the

information must be “material to preparing the defense”).

Finally, Nguyen failed to demonstrate that “the Government [was] in

possession of information helpful to the defense.” United States v. Stever, 603 F.3d

747, 752 (9th Cir. 2010) (citation and quotation marks omitted). Nguyen sought

information almost exclusively in the possession of the software’s third-party

developer. 

2. Warrant. First, there was sufficient probable cause to support the warrant.

Law enforcement discovered that child pornography was being shared from a

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computer using a certain IP address. Time Warner Cable matched the IP address

with a customer name and service address. Law enforcement then verified the

name and address with the local utility provider. This was sufficient to establish a

“fair probability that contraband or evidence of a crime [would] be found in

[Nguyen’s home].” Illinois v. Gates, 462 U.S. 213, 238 (1983) 

Second, the warrant was not supported by a stale affidavit. The affidavit

attested that (1) a computer using a given IP address “possessed multiple suspected

child pornography files available for sharing”; (2) law enforcement had

downloaded one video (with a file name indicating it was child pornography) and

verified it was child pornography; (3) the subscribing agent had extensive

experience working with child pornography investigations; and (4) individuals

who collect child pornography tend to treat their collection as a “prized

possession[]” and will often make multiple backups to protect it. “The mere lapse

of substantial amounts of time is not controlling in a question of staleness,” United

States v. Dozier, 844 F.2d 701, 707 (9th Cir. 1988), and “in light of the particular

facts of [this] case,” a three month delay between the initial download and the

search did not make the warrant stale, United States v. Lacy, 119 F.3d 742, 745-46

(9th Cir. 1997) (citation and quotation marks omitted) (finding no staleness where

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there was a ten month delay combined with attestations similar to the instant case

regarding child pornography collectors). 

3. Evidence. Any abuse of discretion by the district court for failing to

review the two images and six-second video of child pornography before allowing

the Government to publish them to the jury was harmless. Cf. United States v.

Merino-Balderrama, 146 F.3d 758, 761-63 (9th Cir. 1998) (finding “[a]llowing the

jury to view more than ten minutes of film portraying children engaged in graphic

sexual conduct” was not harmless). First, Nguyen makes no allegation or factual

demonstration that some of the images or video clips not shown were less

inflammatory than the ones shown to the jury. Second, “the district court used just

about every tool at its disposal to minimize the inflammatory nature of the

images,” United States v. Ganoe, 538 F.3d 1117, 1124 (9th Cir. 2008), by severely

minimizing (from over five hundred videos and images to two images and one, sixsecond video clip) what the Government was allowed to show and giving a

cautionary instruction when the evidence was presented. Finally, the evidence

against Nguyen was overwhelming: (1) Nguyen was sleeping in his bedroom when

the search was conducted, (2) the search revealed child pornography on various

hard drives and the computer next to Nguyen, (3) Nguyen’s personal files were on

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the hard drives, and (4) one of the residents of the home testified that Nguyen told

him he was in trouble for “download[ing] some movies.”

4. Alibi Instruction. The district court did not err by refusing to give an alibi

jury instruction. To prove the charged offense, the Government only needed to

prove Nguyen possessed child pornography “on or about January 29, 2013.” The

fact that Nguyen might have an alibi for other dates is not relevant to the charge

and, thus, there was no legal basis for the instruction. See United States v. Kayser,

488 F.3d 1070, 1073 (9th Cir. 2007).

5. Dual Purpose Instruction. The district court did not plainly err by failing

to give a dual purpose instruction. Although the district court did not give a formal

instruction at the close of evidence, it sua sponte gave a dual purpose instruction

after each of the relevant Government witnesses testified. The instruction given

during the trial materially communicated the necessary distinctions between expert

and percipient testimony, particularly ensuring that no “unmerited credibility” was

ascribed to the fact testimony. United States v. Vera, 770 F.3d 1232, 1242 (9th Cir.

2014).

AFFIRMED.

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