United States v. Majeroni , 784 F.3d 72 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 14–1105
UNITED STATES OF AMERICA,
Appellee,
v.
TIMOTHY MAJERONI,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Lynch, Chief Judge,
Thompson and Kayatta, Circuit Judges.
James S. Hewes for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty II, United States Attorney, was on brief,
for appellee.
April 27, 2015
KAYATTA, Circuit Judge. Convicted and sentenced for
possessing child pornography and violating supervised release,
Timothy Majeroni advances five arguments on appeal: (1) the
district court abused its discretion under Federal Rule of
Evidence 403 in admitting his prior child pornography
conviction; (2) the district court similarly erred in
admitting evidence of his supervised release; (3) the district
court erred in denying his motion to suppress evidence from
the search of his apartment; (4) the evidence was insufficient
to convict him of the charged offense; and (5) the district
court abused its discretion in sentencing him to a mid-range
prison term. Finding that none of his arguments comes close
to the mark, we affirm his conviction and sentence.
I. Background
In 2001, Majeroni was convicted of possessing child
pornography, resulting in a prison term followed by a period
of supervised release. Majeroni twice violated the conditions
of that supervised release, in 2004 and 2007. In 2008, he
was convicted of failing to register under the Sex Offender
Registration and Notification Act ("SORNA"), 18 U.S.C.
§ 2250(a), resulting in yet another prison term followed by
another period of supervised release, the terms of which he
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also violated. In January 2012, the district court sentenced
him for this third supervised release violation, imposing a
term of imprisonment followed by another period of supervised
release that began in August of 2012.
The special conditions for that most recent period
of supervised release substantially restricted Majeroni's
freedom. He was confined to his home and monitored by a GPS
at all times. His supervising probation officer had authority
to visit his home without warning or cause. He was not to
access the internet or possess a computer without prior
approval from his probation officer. Additionally, probation
officers could search and seize any computer equipment.
This new term of supervised release, like his prior
terms of supervised release, was short-lived. On November 26,
2012, two probation officers, Kristin Cook and Laura Tait,1
visited Majeroni's home. Upon arriving, they knocked on his
front door, but got no answer. After three or four minutes,
Majeroni came to the door. Alone in his apartment, he
explained his delay by claiming that he had been lying down.
He then invited them in. Upon entering, Cook noticed that the
1
Cook was Majeroni's primary supervisor. Tait played a
supporting role during the visit, monitoring Majeroni's behavior
whenever Cook was out-of-sight.
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spare bedroom, previously unfurnished, now had a desk, a
chair, and an air mattress. Cook also noticed a burning
cigarette and a cup of coffee on the desk. She asked Majeroni
why those items were there if he had just been lying down.
Majeroni offered no explanation.
Cook then observed a laptop power cord, plugged into
the wall and coming out from behind the desk. She asked
Majeroni whether he had a laptop. He denied having one, and
claimed that the power cord was for his television's remote
control. Cook was not convinced. Suspecting he had a laptop
computer, she asked whether he minded if she searched his
apartment, to which he replied, "No, I don't mind."
Cook then entered the spare bedroom. Lying
immediately adjacent to the desk was an opened backpack,
covered with clothes. Cook moved the clothes and found a
laptop computer and internet modem. She asked Majeroni why he
lied. He said he did not know why, and further confessed to
having possessed the laptop for two months. Cook seized the
laptop and modem. Majeroni did not object. He was
remorseful and compliant. Majeroni said, "I don't know why I
did this, [Cook] was really good to me, I feel badly." The
next day, Majeroni came to Cook's office. He admitted to
twice having accessed the internet on that laptop computer.
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He indicated that his delay in answering the door on November
26 was due to his having been on the internet.
Cook transferred Majeroni's laptop to a probation
officer with computer forensics training. The officer's
preliminary search revealed child pornography. The officer
then transferred the laptop to the Secret Service. In an
abundance of caution, agents applied for and received a
warrant prior to searching the laptop.2 They ultimately found
190 pornographic images of children.
A grand jury charged Majeroni with possessing child
pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B),
2256(8)(A). Pretrial, Majeroni moved to suppress evidence
from the searches of his home and computer. The district
court denied that motion. The government moved to admit
evidence of Majeroni's 2001 conviction for possessing child
pornography. The district court granted that motion.
Majeroni then moved to exclude any reference to the conditions
of his supervised release. The court rejected that motion,
but also limited the government to showing simply that
Majeroni was on supervised release for a criminal offense,
2
The Secret Service suggested in its application that it may
"already have all necessary authority to examine the laptop" but
applied anyways "out of an abundance of caution."
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that he was supervised by Cook and subject to home confinement
and GPS monitoring, and that Cook seized Majeroni's laptop to
look for evidence of supervised release violations. As it
turned out, Majeroni's attorney ultimately informed the court
that he saw no need to request a limiting instruction.
After a two-day trial, a jury convicted Majeroni.
According to the United States Sentencing Guidelines, he faced
135–168 months for the child pornography offense, and 18–24
months for the supervised release violation. The district
court imposed consecutive 150- and 24-month sentences and a
life term of supervised release.
II. Analysis
A. Majeroni's Prior Child Pornography Conviction
Over Majeroni's objection, the district court
admitted into evidence a stipulation that Majeroni pleaded
guilty in 2001 to possession of child pornography.3 Majeroni
3
That stipulation provided that:
On April 25, 2001, the defendant pleaded guilty to two
counts of possession of child pornography in the United
States District Court for the District of Maine. In
connection with his guilty plea, the defendant admitted
that he had knowingly possessed a personal desktop
computer and a floppy computer storage disk that both
contained images of child pornography. The defendant was
sentenced for these offenses on July 31, 2001.
The court then promptly instructed the jury as follows:
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appears to recognize that Federal Rule of Evidence 414
expressly grants the trial court the discretion to admit such
evidence in a case of this type.4 He nevertheless argues that
admitting the evidence in this particular case was an abuse of
that discretion, because a proper balancing of probative value
versus unfair prejudice under Rule 403 compelled the exclusion
of the evidence.5
[Y]ou've heard evidence, the evidence being the
stipulation, that the defendant was convicted of
possession of child pornography in the United States
District Court for the District of Maine in 2001. You
may consider this evidence on any matter which you
believe it to be relevant. However, evidence of this
prior offense on its own is not sufficient to prove the
defendant guilty of the crime charged in the indictment.
Bear in mind as you consider this evidence at all times
the Government has the burden of proving beyond a
reasonable doubt that the defendant committed each of the
elements that I've just described earlier in the case of
the offense charged in the indictment. I remind you that
the defendant is not on trial for any act, conduct, or
offense not charged in this indictment.
4
Federal Rule of Evidence 414 provides that:
In a criminal case in which a defendant is accused of
child molestation, the court may admit evidence that the
defendant committed any other child molestation. The
evidence may be considered on any matter to which it is
relevant.
Possession of child pornography constitutes evidence of "child
molestation," as defined under Rule 414. Fed. R.
Evid. 414(d)(2)(B).
5
"The court may exclude relevant evidence if its probative
value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the
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Where, as here, objections are preserved, we review
the district court's evidentiary rulings for an abuse of
discretion. United States v. Joubert, 778 F.3d 247, 253 (1st
Cir. 2015). In exercising their broad discretion under Rule
403, trial judges have a feel for the evidence and the
courtroom that is difficult to replicate on the pages of a
transcript, so our deference to judgment calls of this type is
great. See United States v. Bayard, 642 F.3d 59, 63 (1st Cir.
2011). In challenges to inherently prejudicial Rule 414
evidence, we are also mindful that Rule 403 only guards
against unfair prejudice. See United States v. Gentles, 619
F.3d 75, 87 (1st Cir. 2010). Finally, we employ no heightened
or special test for evaluating the admission of Rule 414
evidence under Rule 403. See Martinez v. Cui, 608 F.3d 54, 60
(1st Cir. 2010) (rejecting those tests that "more carefully
scrutinize district courts' decisions under Rules 413–415").6
Instead, we review such rulings under the ordinary abuse-of-
discretion standard. Id.
jury, undue delay, wasting time, or needlessly presenting
cumulative evidence." Fed R. Evid. 403.
6
For contrary views we have rejected, see United States v.
Kelly, 510 F.3d 433, 437 (4th Cir. 2007); United States v. LeMay,
260 F.3d 1018, 1027-28 (9th Cir. 2001).
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Under any test, the district court in this case
clearly did not abuse its discretion. The evidence of prior
possession of child pornography was in the form of a guilty
plea, eliminating any risk of having the issue of prior
conduct bloom into a trial within the trial, and reducing the
possibility that the admittedly prejudicial information was
inaccurate. The fact that the prior conduct was similar to
the charged conduct enhanced its presumed probativeness. Nor
does the fact that the prior conduct occurred over ten years
before the charged conduct compel a different result. See,
e.g., United States v. Jones, 748 F.3d 64, 68–71 (1st Cir.
2014) (no abuse of discretion in admitting evidence of child
molestation conviction occurring eighteen years prior to
charged conduct); Joubert, 778 F.3d at 254–55 (no abuse of
discretion in admitting evidence of similar child molestation
acts that allegedly occurred eighteen to twenty years prior to
charged conduct). And the court's controlled method of
introducing the information, with a limiting instruction,
speaks well of its carefully nuanced exercise of discretion.
See Jones, 748 F.3d at 71 (precautionary measures such as
limiting instructions reduce risk of unfair prejudice).
Majeroni also argues (for the first time on appeal)
that there was no evidence to suggest that the images from the
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prior conviction were of actual children, yet Rule 414
requires an actual child victim. But Majeroni did not raise
this argument below, so we review only for plain error.
United States v. Burdulis, 753 F.3d 255, 263 (1st Cir. 2014).
And we see no such error, plain or not, given his guilty plea
to the prior charges.
B. Evidence of the Terms of Majeroni's Supervised Release
In setting the scene and context for both the
discovery of the laptop and Majeroni's conversations with
Cook, the evidence revealed the existence and general nature
of Majeroni's supervised release. Majeroni now presses an
objection to that plainly relevant background evidence,
arguing that it "tainted the jury," especially without a
limiting instruction. But Majeroni's attorney affirmatively
decided not to ask for a limiting instruction because, as he
explained, the evidence did not "seem to have a big splash
during trial," see United States v. Rodriguez, 311 F.3d 435,
437 (1st Cir. 2002) (party who identifies issue and then
waives issue cannot resurrect it on appeal), and Majeroni
himself cross-examined Cook on the terms of supervised
release, see United States v. Munson, 819 F.2d 337, 342 (1st
Cir. 1987) (no Rule 403 violation when defendant elicited
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evidence that he claimed was unfairly prejudicial). Given the
properly admitted evidence of a prior conviction, and the
strong direct evidence of guilt, we have no doubt that this
evidence did not make much of a "splash." Be that as it may,
the district court certainly did not abuse its discretion.
C. Denial of Majeroni's Motion to Suppress
In a convoluted argument, Majeroni suggests that he
had not agreed to the condition of his supervised release that
allowed a search based on "a reasonable basis" to believe the
search would discover a violation, and that Cook otherwise
lacked probable cause for a warrantless search. The simple
answer to this challenge is that Cook took the added
precaution of securing Majeroni's express consent to the
search. See Illinois v. Rodriguez, 497 U.S. 177, 181 (1990)
(prohibition against warrantless searches does not apply "to
situations in which voluntary consent has been obtained"). We
could go on, but we need not. There was no Fourth Amendment
violation.
D. Sufficiency of Evidence
Majeroni claims that the record evidence was
insufficient to support his conviction because there was no
evidence that the illicit images were of actual children.
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Alternatively, he argues that there was no evidence that he
knew there was child pornography on his laptop. Majeroni
forfeited these arguments by not renewing his motion for a
judgment of acquittal after the defense rested. United States
v. Reynoso, 276 F.3d 101, 102 (1st Cir. 2002) (per curiam)
(failure to renew motion for judgment of acquittal after
defense rests constitutes forfeiture). So we review for plain
error. United States v. Christi, 682 F.3d 138, 140 (1st Cir.
2012).
The jurors examined the photos and the district court
specifically instructed them that, in order to convict, they
needed to find that the images were of actual children. There
is nothing about those images or the technical evidence to
which Majeroni points that would make the pictures plainly
other than what the jury found them to be.
As for Majeroni's own supposed lack of knowledge
about the photos, he points only to the fact that his romantic
partner claimed that she had never seen him use a laptop. She
also testified that other people visited his apartment "all
the time." The jury apparently did not agree that this
testimony gave rise to reasonable doubt. Given Majeroni's
behavior on the day of the search (much less his admission to
Cook), there is no cause for us to second guess such a
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judgment that "is supported by a plausible rendition of the
record." United States v. Wilder, 526 F.3d 1, 8 (1st Cir.
2008) (internal quotation marks omitted); see United States v.
Mena-Robles, 4 F.3d 1025, 1031 (1st Cir. 1993) (jury is
"empowered to accept or reject, in whole or in part, any
testimony").
E. Sentencing Challenge
Finally, Majeroni challenges the substantive
reasonableness of his 174-month prison sentence, contending
that the district court abused its discretion by not
downwardly varying. Majeroni claims that the district court
should have done so in light of the extensive abuse he
suffered as a child, his distinguished military service, his
mental health issues, his post-offense rehabilitation, and the
harshness of the child pornography sentencing guidelines.
We review the substantive reasonableness of a
sentence for an abuse of discretion. Joubert, 778 F.3d at
256. "The hallmarks of a substantively reasonable sentence
are 'a plausible sentencing rationale and a defensible
result.'" United States v. Zapata-Vazquez, 778 F.3d 21, 24
(1st Cir. 2015) (quoting United States v. Martin, 520 F.3d 87,
96 (1st Cir. 2008)).
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The district court here explicitly weighed Majeroni's
mitigating and aggravating circumstances. The court was
mindful of his military service and the horrible abuse he
suffered as a child. The court similarly considered the
unlikelihood of Majeroni reforming his behavior. Familiar
with Majeroni from his prior run-ins, the district court had
little faith in his ability to reform, given previous
supervised release violations. "That the sentencing court
chose not to attach to certain of the mitigating factors the
significance that the appellant thinks they deserved does not
make the sentence unreasonable." United States v. Clogston,
662 F.3d 588, 593 (1st Cir. 2011). There is "a range of
reasonable sentences" for any defendant, and Majeroni's mid-
range sentence here does not "fall[] outside the expansive
boundaries of that universe." Martin, 520 F.3d at 92.
III. Conclusion
For the aforementioned reasons, we affirm Majeroni's
conviction and sentence in all respects.
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