After Lawson Hardrick, Jr. was “found guilty after a jury
trial of two counts of knowingly receiving visual depictions of minors engaged
in sexually explicit conduct in violation of 18 U.S. Code § 2252(a)(2),”
he appealed. U.S. v. Hardrick, 2014 WL 4358467 (U.S. Court of Appeals for the 9th Circuit 2014).
He made two arguments on
appeal: (i) that the trial judge erred
in admitting “evidence that he possessed other child pornography videos for
which he was not charged” and (ii) that the evidence presented at trial was not
sufficient to prove beyond a reasonable doubt that “he knowingly received the
two child pornography videos for which he was charged.” U.S. v.
Hardrick supra.
The Court of Appeals began its opinion by explaining how the
case arose:
In March 2010, the Department of
Homeland Security identified two Internet Protocol (IP) addresses located at
Hardrick's home that were making child pornography available for download.
Agents seized the two computers associated with the IP addresses from Hardrick's
home office. A forensic examination found several child pornography videos on
each computer.
While the search warrant was being
executed at Hardrick's home, Hardrick admitted to using the file-sharing
program LimeWire to download pornography, but he denied having downloaded child
pornography. Hardrick said that sometimes he downloaded files with innocuous
names only to open the file and find pornography. Once, he downloaded a file
titled `Play Ball,’ which turned out to be a video of high school kids, `all
over 18, probably,’ having sex in the bleachers of a stadium. Hardrick admitted
he had also seen child pornography, a video titled `Father Does,’ or something
similar, involving a four-year-old. Questioned whether there was any child
pornography on his home-office computers at the moment, Hardrick
responded, `There could be anything on anything. But no, I wouldn't swear
to it.’ . . .
U.S. v. Hardrick supra.
It also explained that, as to the first issue Hardrick
raised on appeal, the
district court [judge] denied
Hardrick's motion in limine to exclude evidence of the other,
uncharged child pornography videos found on his home-office computers from the
government's case-in-chief. The district court agreed with the government that
the evidence was admissible under Federal Rule of Evidence 404(b) because it tended to prove that Hardrick knowingly received the
child pornography videos and disprove that he had mistakenly or accidentally
downloaded the files.
The district court concluded that the
evidence would not be overly prejudicial under Federal Rule of Evidence 403 because the government agreed that it would only elicit `brief
commentary by the case agent that [the charged videos] were not the only
images’ found on Hardrick's computers and would not show the uncharged videos
to the jury.
U.S. v. Hardrick supra.
During the lunch recess at Hardrick’s “one-day jury trial”,
which came before the
government introduced the 404(b)
evidence, the district court told Hardrick's counsel that `if during the trial
there comes a point on 404(b) that you want a limiting instruction, please let
me know and then I would give that.’
The government admitted into evidence a
document entitled `Questionable Videos,’ which listed the hard drive location and
file name of the nine videos found on Hardrick's first computer. Each of the
nine videos had a sexually explicit title clearly signaling that the video
contained child pornography. Seven of these nine videos were uncharged videos.
The government also admitted into evidence a document titled `Questionable
Movies,’ which listed the six videos with explicit titles referring to minors
found on Hardrick's second computer. Five of these videos were also on the
Questionable Videos list, including one of the two charged videos.
The government elicited testimony from
a case agent that all of the videos on the Questionable Videos list contained
child pornography. The government played the two charged videos for the jury
but did not play the uncharged videos. Hardrick's counsel did not ask the
district court to give a contemporaneous limiting instruction during the
presentation of the 404(b) evidence.
U.S. v. Hardrick supra.
The court also explained that the forensic examiner who
examined the two
home-office computers testified that
one of the child pornography videos found on both computers was saved in a
different folder on each computer, which he had never seen a computer virus,
Trojan horse, or e-mail pop-up do. Similarly, the forensic examiner testified
that, had the video been downloaded by accident, it would not have been saved
to different folders on two computers.
The forensic examiner further testified
that the `thumbcache’ on one of Hardrick's computers showed that one of
the videos from the Questionable Videos list had been opened and viewed. The
government also admitted a list of the `most recently used’ (MRU) files from
one of the computers, which showed the most recently opened files on the
computer. Hardrick's MRU files included many videos with titles suggesting that
they contained child pornography.
U.S. v. Hardrick supra.
Finally, after all the evidence was presented and before the
case went to the jury, the
the district court [judge] gave a
slightly modified version of Ninth Circuit Model Criminal Jury Instruction
4.3. The court instructed the jury:
`You have heard evidence that the
Defendant committed other acts not charged here. You may consider this evidence
-- this is what I call a `limiting instruction.’ You may consider this evidence
only for its bearing, if any, on the question of the Defendant's intent,
knowledge, identity, absence of mistake, absence of accident and for no other
purpose. You may not consider this evidence of guilt of the crime for which the
Defendant is now on trial.’
U.S. v. Hardrick supra. The jury convicted Hardrick on both counts
and the judge later sentenced him to “120 months in prison”. U.S. v.
Hardrick supra.
The Court of Appeals began its analysis with Hardrick’s
arguments that the district court judge “abused [her] discretion” in balancing “the
probative value of the uncharged-video evidence against the danger of unfair
prejudice to him,” and “by giving an insufficient limiting instruction on the
404(b) evidence and by failing to give another
limiting instruction sua sponte when the 404(b) evidence was
admitted into evidence.” U.S. v. Hardrick
supra. It explained, initially, that
evidence of a defendant’s prior
wrong, or other act is inadmissible to
prove the defendant's bad character or propensity to commit the charged
offenses. U.S. v. Vo, 413 F.3d 1010 (U.S. Court of Appeals for
the 9th Circuit 2005). However, evidence of a prior act is admissible for
nonpropensity purposes, `such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of
accident.’ Federal Rule of Evidence 404(b). . . . The proponent of the 404(b)
evidence must show the evidence `(1) proves a material element of the offense
for which the defendant is now charged, (2) if admitted to prove intent, is
similar to the offense charged, (3) is based on sufficient evidence, and (4) is
not too remote in time.’ U.S. v. Ramirez–Robles, 386 F.3d 1234 (U.S. Court of Appeals for the 9th
Circuit 2004).
Rule 404(b) evidence offered to
prove knowledge `need not be similar to the charged act as long as the prior
act . . . would tend to make the existence of the defendant's knowledge more
probable than it would be without the evidence.’ U.S. v. Fuchs, 218
F.3d 957 (U.S. Court of Appeals for the 9th Circuit 2000). . . . If the
four-part test is satisfied, the evidence is admissible unless `its probative
value is substantially outweighed by a danger of ... unfair prejudice.’ Federal
Rule of Evidence 403; U.S. v.. Blitz, 151 F.3d 1002 (U.S.
Court of Appeals for the 9th Circuit 1998). . . .
U.S. v. Hardrick supra.
The Court of Appeals, though, found that the district court
judge’s determination that
the probative value of the 404(b)
evidence outweighed the danger of unfair prejudice to Hardrick was not an abuse
of discretion. The uncharged videos were probative of Hardrick's knowledge and
relevant to his defenses either that he downloaded the videos accidentally
while downloading legal pornography or other files on LimeWire, or that a
hacker had downloaded the videos to his computer. See, e.g., U.S. v.
Schene, 543 F.3d 627 (U.S. Court of Appeals for the 10th Circuit 2008) (affirming
admission of uncharged child pornography images for the purpose of proving
defendant's intent and knowledge). . . .
In addition, the district court limited
the videos' prejudicial effect by permitting the case agent to provide only
`brief commentary’ on the location and file names of the other videos and not
permitting the government to show the videos to the jury. See, e.g.,
U.S. v. Ganoe, 538 F.3d 1117 (U.S. Court of Appeals for the 9th
Circuit 2008) (affirming admission of child pornography videos where
district court limited the government to playing only a few seconds of several
video clips). . . .
U.S. v. Hardrick supra.
Hardrick also argued that the limiting instruction the judge
gave was insufficient to
limit the prejudice
to him and that the district court should have given a contemporaneous limiting
instruction sua sponte is unpersuasive. Hardrick requested --
and the district court gave -- Ninth Circuit Model Criminal Jury Instruction
4.3, which instructs the jury that it has heard evidence of the defendant's
other acts and that it may consider that evidence only for limited purposes.
Although Hardrick
did not request it, the district court tailored the instruction to list the
limited purposes for which the jury could consider the uncharged videos --
intent, knowledge, identity, absence of mistake, and absence of accident -- and
Hardrick did not object. Hardrick has not demonstrated how the district court
committed reversible error by giving the appropriate, legally correct model
instruction [he] proposed. . . .
U.S. v. Hardrick supra. The Court of Appeals therefore held that the
district court judge “properly exercised” her discretion in admitting “evidence
of the uncharged child pornography videos found on Hardrick’s computers.” U.S. v.
Hardrick supra.
The Court of Appeals then took up Hardrick’s second argument
-- that the evidence at trial did not prove beyond a reasonable doubt that “he
knowingly received the two child pornography videos for which he was charged.” U.S. v. Hardrick supra. The Court of Appeals began its analysis of
this argument by explaining that
[w]e review de novo the sufficiency of
the evidence underlying a conviction. U.S. v. Schales, 546 F.3d 965
(U.S. Court of Appeals for the 9th Circuit 2008). We must affirm the conviction
`unless, viewing the evidence in the light most favorable to sustaining the
verdict, no rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.’ U.S. v. Budziak, 697 F.3d
1105 (U.S. Court of Appeals for the 9th Circuit 2012).
We hold that the evidence at trial was
sufficient to prove that Hardrick knowingly received the two child pornography
videos even though there was no direct evidence that he had downloaded or
watched the files.
U.S. v. Hardrick supra.
The Court of Appeals then explained why it reached that
conclusion:
First, the government produced evidence
that Hardrick had dominion and control over the two computers on which the
child pornography videos were found. The computers were located in Hardrick's
home office. Hardrick admitted that his son and daughter living in his home
used their own computers, not the computers in Hardrick's office. The government
produced evidence that the `Lawson L. Hardrick’ Windows account was the account
generally in use on both computers. And all of the e-mail addresses associated
with that Windows account were Hardrick's.
Second, the number, timing, and
location of the child pornography videos on the computers were inconsistent
with Hardrick's defenses that he had accidentally downloaded the child
pornography videos or that a hacker had downloaded child pornography videos to
his computer without Hardrick's knowledge. The number of videos on the two
computers suggested that the two charged videos had not been downloaded
accidentally. There were nine videos on Hardrick's first computer with file
names clearly indicating that the file contained child pornography. There were
six videos on Hardrick's second computer with similar file names. The videos
had been downloaded on different days and at different times, making it
unlikely that their presence on his computers was the result of a hacker or
computer virus. And one of the child pornography videos was saved on both
computers in different locations. The forensic examiner testified that he had
never seen a computer virus, Trojan horse, or e-mail pop up save the same file
in different places on two computers.
U.S. v. Hardrick supra. As noted above, the court found this evidence
was sufficient to sustain Hardrick’s convictions. U.S. v.
Hardrick supra.
The press release you can find here provides a little more
information on Hardrick’s crime and his sentencing. And the news story you can find here provides
a little more information about the charges against him.
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