12‐4862‐cr

United States v. Harris

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”).  APARTY CITING TO A SUMMARY ORDERMUSTSERVE A COPY OF IT ON

ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, held

2 at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New

York, on the 18th 3 day of December, two thousand thirteen.

4

5 Present:

6 DEBRA ANN LIVINGSTON,

7 RAYMOND J. LOHIER, JR.,

8 Circuit Judges,

9 SIDNEY H. STEIN,

District Judge.* 10

11 _____________________________________

12

13 UNITED STATES OF AMERICA,

14

15 Appellee,

16

17 v. 12‐4862‐cr

18

19 MARCUS CARLOS HARRIS,

20

21 Defendant‐Appellant.

22 _____________________________________

* The Honorable Sidney H. Stein, of the United States District Court for the Southern

District of New York, sitting by designation.
1 For Appellee: AMY BUSA and DARREN A. LAVERNE,

2 Assistant United States Attorneys, for

3 Loretta E. Lynch, United States Attorney

4 for the Eastern District of New York (on

5 submission).

6

7 For Defendant‐Appellant: YUANCHUNG LEE, Federal Defenders of

8 New York, Inc. (on submission).

9

10 UPON DUE CONSIDERATION,ITIS HEREBY ORDERED, ADJUDGED, AND

11 DECREED that the judgment of the district court is AFFIRMED.

12 Defendant‐Appellant Marcus Carlos Harris  appeals from a judgment of the

13 United States District Court for the Eastern District of New York (Glasser, J.),

14 convicting him, after a jury trial, of three counts of receipt of child pornography, in

15 violation of 18 U.S.C. § 2252(a)(2), and one count of possession of child

16 pornography,  in violation of 18 U.S.C. § 2252(a)(4)(B), and sentencing him to 210

17 months’ imprisonment and a life term of supervised release.  On appeal, Harris

18 challenges (1) the district court’s denial of his motion to suppress statements that he

19 made to law enforcement personnel; (2) the district court’s decision to permit the

20 government to publish images of child pornography to the jury; (3) the district

21 court’s determination that downloading images from the Internet supported the “in

22 commerce” element underpinning two of the counts charging Harris with receipt

23 of child pornography; (4) the procedural reasonableness of his sentence due to the

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1 district court’s application of an obstruction‐of‐justice enhancement; and (5) the

2 substantive reasonableness of his sentence due to the length of the term of

3 imprisonment imposed.  We assume the parties’ familiarity with the underlying

4 facts, procedural history of the case, and issues on appeal.

5 I. Motion to Suppress

6 We review the district court’s factual findings on a motion to suppress for

7 clear error and its conclusions of law de novo.  See, e.g., United States v. Elmore, 482

8 F.3d 172, 178 (2d Cir. 2007).    An evidentiary hearing on a motion to suppress

9 “ordinarily is required if the moving papers are sufficiently definite, specific,

10 detailed, and nonconjectural to enable the court to conclude that contested issues of

11 fact . . . are in question.”  In re Terrorist Bombings of U.S. Embassies in E. Africa, 552

12 F.3d 157, 165 (2d Cir. 2008) (internal quotation marks omitted).  We review the

13 district court’s denial of a request for such a hearing for abuse of discretion.  See

14 United States v. Levy, 377 F.3d 259, 264 (2d Cir. 2004).

15 Harris argues that the district court erred in declining to hold an evidentiary

16 hearing to determine whether he was in “custody” for purposes of Miranda when

17 law enforcement officers questioned him as they executed a search warrant at his

18 home. See Miranda v. Arizona, 384 U.S. 436, 444 (1966).  “The test for custody is an

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1 objective one: whether a reasonable person in defendant’s position would have

2 understood himself to be subjected to the restraints comparable to those associated

3 with a formal arrest.”   United States v. Newton, 369 F.3d 659, 671 (2d Cir. 2004)

4 (internal quotation marks omitted).  Employing this objective test, we conclude that

5 Harris failed to allege to the district court any facts supporting the conclusion that

6 he was in “custody” when officers questioned him.  In Harris’s motion, his attorney

7 simply asserted in an affidavit that Harris had not wanted officers to enter his home

8 and that Harris was “kept in the living room” while officers searched his apartment.

9 In his reply, Harris averred only that he had not permitted the officers entry, had not

10 been informed of his Miranda rights, and “was not free to leave” during the search.

11 Nowhere did Harris dispute the facts in the investigation report and submitted by

12 the government that Harris’s roommate voluntarily permitted the officers entry to

13 the home, the officers did not draw their weapons, Harris was not restrained, and

14 the officers did not tell Harris that he was required to answer their questions.  As

15 such, no hearing was required.    

16 II. Admission of Images of Child Pornography

17 We review a district court’s balancing under Federal Rule of Evidence 403 for

18 abuse of discretion.  United States v. Polouizzi, 564 F.3d 142, 152 (2d Cir. 2009).  The

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1 “decision to admit or exclude evidence will not be overturned unless we conclude

2 that the court acted arbitrarily orirrationally.”  United States v. Thai, 29 F.3d 785, 813

3 (2d Cir. 1994).  The government generally has a righttopresent evidence,ratherthan

4 accept a stipulation, in order to “tell [the jury] a story of guiltiness[,] . . . to support

5 an inference of guilt, to convince the jurors that a guilty verdict would be morally

6 reasonable[, and] . . . to point to the discrete elements of a defendant’s legal fault.”

7 Old Chief v. United States, 519 U.S. 172, 187‐88 (1997).    However, “[i]n limited

8 circumstances, the [g]overnment can be required to accept a stipulation by the

9 defendant to a particular fact, rather than present evidence proving the stipulated

10 fact.”  United States v. Velazquez, 246 F.3d 204, 211 (2d Cir. 2001).  

11 Harris argues thatthe district court abused its discretion by admitting a video

12 clip and still image of child pornography recovered from his home because he had

13 offered to stipulate that the images were child pornography.  Thus, Harris argues

14 that the probative value of the images was substantially outweighed by the risk of

15 unfair prejudice to him.  This argument is without merit.  While Harris may not

16 have contested that the images were child pornography, the images were still

17 probative of whether Harris knew that the images were child pornography given the

18 youth ofthe minors depicted.  Moreover,the risk of unfair prejudice was minimized

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1 by the brevity of the video clip presented and the district court’s decision to admit

2 only one of five still images.  Accordingly, we find no abuse of discretion in the

3 district court’s decision to admit the images.   

4 III. Sufficiency of Evidence

5 We review de novo challenges to the sufficiency of the evidence.  United States

6 v. Rangolan, 464 F.3d 321, 324 (2d Cir. 2006).  Harris argues that the district court

7 erred in concluding that the “in commerce” element of the pre‐October 2008 version

8 of 18 U.S.C. § 2252(a)(2), in effect when Harris committed the charged offenses, is

9 satisfied by the sole fact that child pornography was transmitted over or received

10 from the Internet.   Because the government relied upon Harris’s receipt of the

11 relevant images from the Internet to prove this element, he asserts, it failed to

establish his guilt on Counts One and Two.1 12   We have little difficulty rejecting this

13 argument.

14 The pre‐October 2008 version of 18 U.S.C. § 2252(a)(2) required the

15 government to establish, inter alia, that child pornography had been “transported in

16 interstate . . . commerce.”  18 U.S.C. § 2252(a)(2) (2003).  This Court has previously

1 Harris does not challenge the sufficiency ofthe evidence with respectto CountsThree and

Four, for which he received concurrent sentences of 210 months’ imprisonment and a

lifetime term of supervised release.

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1 determined that use of the Internet satisfies such a requirement.  See United States v.

2 Rowe, 414 F.3d 271, 279 (2d Cir. 2005) (holding that publication of an advertisement

3 on the Internet to trade child pornography amounted to an “offense involving . . .

4 transportation in interstate . . . commerce”  for purposes of 18 U.S.C. § 3237(a));

5 United States v. Anson, 304 F. App’x 1, 5 (2d Cir. 2008) (summary order) (affirming

6 conviction fortransporting,receiving, and possessing child pornography underthe

7 pre‐October 2008 version of 18 U.S.C. § 2252(a)(2) because the images at issue were

8 “obtainedfrom the [I]nternet,” which constitutedsufficient evidence to establishthe

9 “in commerce” element).  The First, Third, Fifth, and Sixth Circuits have reached the

10 same determination.  See United States v. MacEwan, 445 F.3d 237, 244 (3d Cir. 2006)

11 (discussing 18 U.S.C. § 2252(a)); United States v. Runyan, 290 F.3d 223, 239 (5th Cir.

12 2002) (discussing 18 U.S.C. § 2251); United States v. Carroll, 105 F.3d 740, 742 (1st Cir.

13 1997) (same); United States v. Mellies, 329 F. App’x 592, 605 (6th Cir. 2009)

14 (unpublished decision) (discussing 18 U.S.C. § 2252(a)); but see United States v.

15 Schaefer, 501 F.3d 1197 (10th Cir. 2007).

16 This conclusion makes perfect sense.  As the Third Circuit stated, “because of

17 the very interstate nature of the Internet, once a user submits a connection request

18 to a website server or an image is transmitted from the website server back to user,

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1 the data has traveled in interstate commerce.”    MacEwan, 445 F.3d at 244.

2 Accordingly, we conclude that the government satisfied its burden of proof on the

3 “in commerce” element of 18 U.S.C. § 2252(a)(2).

4 IV. Obstruction‐of‐Justice Enhancement

5 “On review of a district court’s decision to enhance a defendant’s sentence for

6 obstruction of justice, we accept the court’s findings of fact unless they are clearly

7 erroneous.”  United States v. Agudelo, 414 F.3d 345, 348 (2d Cir. 2005).  “We review

8 de novo a ruling thatthe established facts constitute obstruction ofjustice, giving due

9 deference to the district court’s application of the guidelines to the facts.” Id.

10 (internal quotation marks omitted).  A district court commits “procedural error

11 where it fails . . . adequately to explain its chosen sentence.”  United States v. Cavera,

12 550 F.3d 180, 190 (2d Cir. 2008) (en banc).

13 Section 3C1.1 of the United States Sentencing Guidelines (the “Guidelines”)

14 instructs district courts to increase an offense level by two levels if “the defendant

15 willfully . . . attempted to obstruct or impede . . . the administration of justice with

16 respect to the investigation, prosecution, or sentencing of the instant offense of

17 conviction,” and “the obstructive conduct related to . . . the defendant’s offense of

18 conviction and any relevant conduct . . . .”  An enhancement for obstruction of

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1 justice is appropriate when adefendant “gives false testimony concerning a material

2 matter with the willful intent to provide false testimony, rather than as a result of

3 confusion, mistake, or faulty memory.”  United States v. Dunnigan, 507 U.S. 87, 94

4 (1993).    We have held that this enhancement may be imposed based on the

5 defendant’s perjurious statements where the district court makes a finding that “the

6 defendant’s statements unambiguously demonstrate[d] an intent to obstruct.”

7 United States v. Savoca, 596 F.3d 154, 159 (2d Cir. 2010).

8 Harris argues that the district court failed adequately to support its

9 application of the obstruction‐of‐justice enhancement.    However, Harris’s

10 Presentence Report (“PSR”) recommended that the court apply the enhancement

11 due to Harris’s “perjurious” testimony at trial, laid out the requisite standard for

12 applying the enhancement, and detailed Harris’s relevant conduct and the evidence

13 supporting application ofthe enhancement.  Priorto sentencing, both Harris andthe

14 government submitted arguments concerning the enhancement, and the district

15 court permitted both parties to argue the point at sentencing, at which time the court

16 stated its agreement with the PSR and the government’s position.   In addition,

17 subsequent to sentencing, the court adopted the PSR’s recommendations in its

18 Statement of Reasons.    See United States v. Johns, 324 F.3d 94, 98 (2d Cir. 2003)

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1 (determining that district court had fulfilled its procedural obligations in imposing

2 an obstruction‐of‐justice enhancement when the court adopted the PSR’s “detailed

3 and explicit” findings).  Based on these circumstances, we conclude that the district

4 court sufficiently supported its application of the enhancement and reject Harris’s

5 argument to the contrary.

6 V. Substantive Reasonableness

7 We review the reasonableness of a challenged sentence “under a deferential

8 abuse‐of‐discretion standard,”United States v.Cavera, 550 F.3d180, 189 (2d Cir. 2008)

9 (en banc) (internal quotation marks omitted), and reject sentences “only in

10 exceptional cases where the trial court’s decision cannot be located within the range

11 of permissible decisions,” United States v. Mason, 692 F.3d 178, 181 (2d Cir. 2012)

12 (internal quotation marks and citations omitted).  Harris’s sentencedoes not present

13 such a case.    See United States v. Rosenberg, 423 F. App’x 54, 55 (2d Cir. 2011)

14 (affirming sentence of 210 months’ imprisonmentforreceipt and possession of child

15 pornography).    Harris asserts that he was “merely a consumer” of child

16 pornography and that a Guidelines sentence of 210 months’ imprisonment is

17 disproportionate to his crime, particularly in light of our decision in United States v.

18 Dorvee, 616 F.3d 174 (2d Cir. 2010).  Instead, Harris asserts,the mandatory minimum

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1 sentence of fifteen years’ imprisonment would have satisfied the purposes of

2 sentencing identified in 18 U.S.C. § 3553(a).  

3 Harris’s argument is misguided.  In Dorvee, we deemed a 240‐month sentence

4 for a first‐time offender substantively unreasonable where the offender had no

5 criminal history, possessed approximately 100 to 125 offending images, accepted

6 responsibility for his offense, and where, in addition, sentencing was procedurally

7 flawed and the district court assumed without basis that the defendant was likely

8 to offend again.  Id. at 181‐84.  By contrast, Harris has a lengthy criminal history,

9 including a previous conviction for sexually abusing a minor.  He also sought out

10 thousands ofimages on paid‐membership sites  and refused to acceptresponsibility

11 for his crime, instead denying the allegations at trial.  In light of these factors, the

12 district court determined that a 210‐month term of imprisonment was necessary to

13 reflect the seriousness of Harris’s crimes and promote respect for the law  ‐  a

14 determination well “within the range of permissible decisions” available to the

15 court.

16

17

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1 VI. Conclusion

2 We have considered Harris’s remaining arguments and find them to be

3 without merit.  Accordingly, we AFFIRM the judgment of the district court.

4

5 FOR THE COURT:

6 Catherine O’Hagan Wolfe, Clerk

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