United States v. Meisel , 875 F.3d 983 ( 2017 )

FILED
United States Court of Appeals
Tenth Circuit
November 14, 2017
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-3182
STEVEN J. MEISEL,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. NO. 6:14-CR-10106-JTM-1)
Daniel T. Hansmeier, Appellate Chief (Melody Brannon, Federal Public Defender,
with him on the briefs), Kansas Federal Public Defender, Kansas City, Kansas, for
Defendant-Appellant.
Jason W. Hart, Assistant United States Attorney (Barry R. Grissom, United States
Attorney, with him on the brief), District of Kansas, Wichita, Kansas, for
Plaintiff-Appellee.
Before TYMKOVICH, Chief Judge, BRISCOE, and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
I. INTRODUCTION
A jury found Steven Meisel guilty of distributing and possessing child
pornography. See 18 U.S.C. § 2252(a)(2), (a)(4)(B). Meisel asserts the district
court (1) violated his right to present a complete defense by preventing him from
adducing alternative perpetrator evidence 1; and (2) erred in denying his request to
instruct the jury on “identity.” Even assuming the district court erred in limiting
Meisel’s ability to present alternative perpetrator evidence, any such error was
harmless. And, since the jury instructions, considered as a whole, adequately
conveyed to the jury the gist of Meisel’s defense, the district court did not abuse
its discretion in refusing to give Meisel’s proffered instruction. Exercising
jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms Meisel’s convictions.
II. BACKGROUND
A. The Criminal Investigation
On May 9, 2014, Detective Jennifer Wright saw a user on the Ares file-
sharing network 2 offering child pornography. After downloading five videos, she
captured the IP address, the user’s Ares nickname, and the user’s version of Ares.
1
See Holmes v. South Carolina, 547 U.S. 319, 321, 330-31 (2006) (holding
unconstitutional a state evidentiary rule automatically excluding alternative
perpetrator evidence when the prosecution case was strong).
2
“Consistent with other file-sharing programs, Ares permits users to
download and view files stored on other users’ computers in their shared folders.”
United States v. Abbring, 788 F.3d 565, 566 (6th Cir. 2015). For a description of
how peer-to-peer file sharing programs operate, see generally MGM Studios Inc.
v. Grokster, Ltd., 545 U.S. 913, 919-23 (2005).
-2-
Based on the captured IP address, she obtained a search warrant for a home
Meisel shared with Linda Thomas. When the warrant was executed, officers
found two computers: Thomas’s and Meisel’s. Meisel’s computer, which had a
picture of a unicorn on the cover, was connected to an external hard drive.
Officers interviewed Thomas during execution of the warrant. She said
(1) Meisel moved in with her three years earlier, in the fall of 2011; (2) W.R.,
Meisel’s son, lived with them for one year, but had been gone from the residence
for one year; and (3) she previously shared Meisel’s computer. Thomas bought
her own computer approximately one year earlier, after she discovered child
pornography on Meisel’s computer. She immediately confronted Meisel about the
child pornography and, in response, Meisel blamed W.R. At that point, Meisel
insisted Thomas obtain her own computer. Thereafter, according to Thomas,
Meisel “was the only one that was ever on there because he wouldn’t let anybody
use his computer.” 3 Thomas said that when Meisel had friends over, they had to
bring their own computers to access the internet.
During his interview with officers, Meisel acknowledged owning the
computer and external drive and said he did not share his password with anyone.
He identified his user profile as “Unicorn” and provided the password. This was
3
The time line in Thomas’s statement was corroborated at trial by evidence
the last password change on Meisel’s computer occurred roughly a year before the
execution of the search warrant.
-3-
the only profile on the computer associated with child pornography. 4 Despite
being aware of the purpose of the interview, it took Meisel some time before he
told officers he previously found, in a folder titled “Test,” child pornography sites
and pictures. Officers did find a “Test” folder on the external hard drive. That
“Test” folder turned out to be the exact location child pornography was stored,
some having been added just three days prior to the execution of the warrant.
Meisel attributed the “Test” folder and child porn to W.R. 5
In contrast to Thomas’s statement, Meisel said he was the one who first
found the child pornography on his computer. He claimed he opened one picture
and deleted the rest based on the titles. 6 He admitted using Ares, stating his Ares
4
“A user profile is a prevalent software operating tool that allows a user to
access a personal desktop set-up, folders, files, and software programs. When a
user profile is password protected, its desktop set-up and files cannot be readily
accessed by others who do not know the password.” United States v. Grzybowicz,
747 F.3d 1296, 1300 n.1 (11th Cir. 2014).
5
The prosecution asserted at trial that Meisel’s reference to a “Test” folder
was a clear indication of his awareness of the child pornography found in the
“Test” folder on the external hard drive. In an attempt to explain his interview
reference, Meisel testified it was to an entirely different “Test” folder, this one
supposedly located on the computer’s internal hard drive. That is, he asserted the
child pornography identified by Thomas was located on the computer itself, not
the external hard drive, and he deleted that material after its discovery. Meisel’s
testimony in this regard was not supported by any forensic evidence. Instead, the
undisputed forensic evidence indicated there was no such folder on Meisel’s
computer and, if such a folder had ever existed, it could not be recovered.
6
As to the “Test” folder on the external hard drive, a forensic examination
showed contraband located therein predated W.R.’s arrival and other contraband
was added after his departure. The forensic examination indicated no “Test”
(continued...)
-4-
nickname of “Uni1” was consistent with his user profile name and his love of
unicorns. He claimed he left the Ares settings to “default,” but later described
changing them to direct files to particular locations. He said the external hard
drive, which he purchased at a yard sale three years earlier, was always connected
to the computer. When asked about organization of the external hard drive, he
claimed he had not “sorted through [it] for I’d say a year or so.” Challenged
about the more recent activity after W.R. was gone, Meisel stated: “If it’s on
there, and it’s recent, then it had to have been me.” He repeated, “If you found it
on there, evidently it’s on there somehow, nobody else used it, I guess I put it
there . . . . If it’s in there, I must have put it in there somehow.”
Officers conducted a forensic examination of Meisel’s computer. Meisel
purchased the computer on September 14, 2011. Regarding login information for
the “Unicorn” user profile, the laptop recorded 3249 successful logins prior to
June 13, 2014, equating to roughly 3 logins (and, thus, logouts) per day. The
Ares client was installed the same day Meisel purchased the computer. The Ares
version (2.1.6.3040) and user-nickname (“UNI1”) matched those captured by
Wright when she originally saw a user on the Ares file-sharing network offering
child pornography. The videos downloaded by Wright during the investigation
were present on the external hard drive under the “Test” folder.
6
(...continued)
folder existed on the computer’s internal hard drive.
-5-
The external hard drive had been intentionally assigned the specific drive
letter “H.” Meisel’s Ares client was set to share from (and only from) the “Test”
folder and its subfolders on the “H” external drive. These folders were organized
according to content (i.e., “pics” contained still images, “videos” contained only
videos, and “text” contained “literature”). Under the “videos” folder, the files
were further organized according to content (e.g., “beast” for bestiality, “mas” for
masturbation, “orl” for oral sex, “ful” for intercourse, etc.). The Ares client also
identified that only videos, images, and documents were being shared, not music
or software. Similar to the sharing feature, Meisel’s Ares client was set to
download only to the “Test” folder on the external drive. Thus, both the external
hard drive and the sharing/downloading features of Ares had been specially set to
the “H” drive, regardless of other available drive letters.
Only nine videos downloaded to the “Test” folder had not yet been sorted
into subcategory folders. Almost all had been downloaded recently, except for
one titled “suicide.” The “Test” folder and its subfolders had been specifically
set to show “large” previews of the contents, such that any user would
immediately see the actual contents rather than an icon. Child pornography from
the external hard drive was frequently viewed on Meisel’s computer via the
Windows Media player. Windows Explorer showed the “Test” folder, and its
descriptively-named subfolders, had been recently and frequently accessed, to the
exclusion of any other folder. Likewise, both Wordpad and Adobe Reader
-6-
indicated sexualized literature involving children was recently accessed via
Meisel’s computer. Recent search terms in the Ares client revealed terms
associated with child pornography. Finally, the forensic examination revealed
that all remotely recent activity on the “H” drive had taken place in the “Test”
folder (i.e., the very location on the hard drive that contained child pornography).
B. Pre-Trial Proceedings
A grand jury indicted Meisel on a charge of distributing five specific
videos of child pornography on May 9, 2014 (i.e., the day Detective Wright
initiated her investigation), in violation of 18 U.S.C. § 2252(a)(2), and a charge of
possessing child pornography on June 13, 2014 (i.e., the day the warrant was
executed), in violation of 18 U.S.C. § 2252(a)(4)(B). Meisel indicated he
intended to introduce at trial evidence other individuals were responsible for the
child pornography on his external hard drive. The government responded by
filing a motion in limine to exclude such evidence. Relying on Holmes v. South
Carolina, 547 U.S. 319, 327 (2006), the government noted it was widely accepted
that evidence tending to prove another person may have committed the charged
crime may be excluded if it is “speculative or remote, or does not tend to prove or
disprove a material fact in issue at the defendant’s trial.” Furthermore, according
to the government, Meisel had proffered no evidence of a legally sufficient nexus
between any individual and his computer, his external hard drive, his Ares profile,
or any child pornography found on his computer or external hard drive. Thus, the
-7-
government asserted the district court should not allow Meisel to argue another
individual was the actual perpetrator.
Meisel filed a response and a proffer. He denied downloading the child
pornography found on his external hard drive or knowing of its existence. He
asserted the sole fact issue to be resolved by the jury was: “[W]ho—what person
or persons—sat at the lap top computer and used it to access child pornography
from the external hard drive? Who possessed—knowingly and intentionally—the
child pornography on the external hard drive?” He asserted a sufficient nexus
existed between three individuals—J.H., S.H., and W.R.—and the child
pornography on the external hard drive. He thereafter proffered evidence in
support of his proposed alternate-perpetrator defense.
J.H.
Meisel asserted J.H. had “unfettered access” to the computer and external
hard drive at times Meisel was absent from the home. He further asserted: J.H.,
Thomas’s caregiver, was at the home at least three hours a day, four days a week;
J.H. had a key to the home; and, due to her physical condition and medications,
Thomas “sleeps a great deal,” specifically including times J.H. was present in the
home. As to J.H.’s nexus to Meisel’s computer, Meisel asserted: the computer
was “logged in and turned on” at times J.H., but not Meisel, was at the home; J.H.
used the computer on June 10, 2014, between 5:39 p.m. and 6:13 p.m. and child
pornography was downloaded that same day from Ares at 2:21 p.m., 2:56 p.m.,
-8-
4:00 p.m., 4:31 p.m., and 6:40 p.m.; and J.H. lived with Meisel at a prior
residence and Meisel owned the computer at that time as well. Finally, Meisel
proffered that he was introduced to Ares by J.H. and J.H. had “a high level of
technical knowledge about the operation of the Ares program.” 7
S.H.
According to Meisel, S.H., J.H.’s brother, would visit the home when
Thomas was asleep, Meisel was not present, and the computer was on and
accessible to others. Meisel also asserted S.H. knew the Wi-Fi password.
Finally, Meisel noted S.H. had lived in the home, although the proffer does not
indicate whether that was before or after Meisel moved into the home.
W.R.
Meisel proffered that his son, W.R., lived in the home for a brief period,
had regular access to the computer, and knew the Wi-Fi and computer passwords.
Meisel also asserted as follows: “[Meisel] found that [W.R.] had accessed two
child pornography sites on his computer. [W.R.] had regular access to the
7
In an effort to meet the nexus requirement set out in Holmes, 547 U.S. at
327, Meisel proffered that J.H. had engaged in a type of sexual misconduct that
made it more likely he was the individual associated with the child pornography
found on Meisel’s computer. See United States v. Montelongo, 420 F.3d 1169,
1174 (10th Cir. 2005) (noting this type of evidence “is often referred to as
‘reverse 404(b)’ evidence”). The district court excluded this evidence as both
irrelevant and unduly prejudicial. Meisel specifically disclaims any appellate
challenge to the district court’s treatment of reverse 404(b) evidence. That being
the case, this court does not consider any reverse 404(b) evidence in deciding this
appeal.
-9-
computer and [Thomas’s] granddaughter saw [W.R.] using [Meisel’s] computer
when [W.R.] had been told by [Meisel] not to do so.”
After a hearing on the government’s in-limine motion, 8 the district court
determined Meisel had not proffered sufficient evidence to establish the necessary
nexus between any of the proposed alternate perpetrators and the crimes with
which Meisel was charged. As to W.R., the district court outlined Meisel’s
argument and evidence, quoting from his pleadings. The district court noted that
“[d]uring the in limine hearing, [Meisel] admitted that no one ever saw [W.R.]
accessing child pornography on [Meisel’s] computer.” Thus, the district court
concluded, “[t]here simply is no evidence to sufficiently establish a nexus
between [W.R.’s] use of the computer and the crimes charged.” As to S.H., the
district court concluded no evidence connected S.H. to the computer and S.H.’s
mere presence in the home where the computer was located was not sufficient to
8
At the hearing, Meisel conceded the nexus evidence as to S.H. was weak:
[T]he second individual is a little more tenuous, and that’s
[S.H.]. . . .
The connection with [S.H.] is . . . he lived in the house for a
short period of time and would come over to the house and because
the computer—Mr. Meisel would leave the computer up and running,
and anybody could go in and use it, the evidence that we have there
is—and the nexus evidence that we have there is that he was in the
house and, therefore, had access to the computer.
We, aside from that, we don’t have any evidence, direct
evidence linking [S.H.] to the computer. . . .
-10-
meet the test set out in Holmes. The district court described the evidence as to
J.H. as “[Meisel’s] most substantial showing,” but concluded even that evidence
was “tenuous at best.” Though it assumed all facts as proffered by Meisel were
true, the district court observed Meisel “attempted to link, by inference” J.H.’s
lawful activity (shopping on the Amazon.com website), of which Meisel was
aware, with secret illegal activity occurring at other times. In rejecting such
“unsupported speculation,” the district court observed as follows:
During the in limine hearing, [Meisel] attempted to link, by
inference, the fact that because [J.H.] admitted to being on the
computer from 5:39pm–6:13pm using the website Amazon.com, he
therefore must also have been the user that accessed and downloaded
child pornography in the times prior to and after that Amazon.com
search. However, . . . “a defendant still must show that his proffered
evidence on the alleged perpetrator is sufficient . . . to show a nexus
between the crime charged and the asserted ‘alternative perpetrator.’
It is not sufficient for a defendant merely to offer up unsupported
speculation that another person may have done the crime.” [United
States v. McVeigh, 153 F.3d 1166, 1191 (10th Cir. 1998) (emphasis
added).]
Here, [Meisel’s] allegation that because [J.H.] used the
computer for a lawful purpose between two times in which the
computer was used to download child pornography, it must also be
that [J.H.] was also the person responsible for accessing and
downloading the child pornography. This notion is merely
“unsupported speculation” and lacks a sufficient nexus to link [J.H.]
to the crime charged. Furthermore, the evidence suggests that
[Meisel] was present and monitoring [J.H.’s] use of the computer
during this time.
The district court made clear its ruling did not prevent Meisel from arguing
others (generally) had access or opportunity to access the computer and/or hard
-11-
drive. That is, Meisel could adduce evidence that others had access to his
computer and/or hard drive to counter the government’s theory that Meisel was
responsible for the child pornography because he had exclusive use of the
computer. What Meisel could not argue, however, was that either W.R., S.H., or
J.H. was the perpetrator based on the mere fact he had some level of proximity to
the computer or hard drive. Immediately prior to the start of trial, the district
court again made this point clear, ruling as follows:
[T]here is absolutely nothing wrong with bringing out during the
course of the evidence, or even during your opening statements,
assuming you have the evidence, that there were various people in
and out of the house that had access to the computer but what I am
not going to let you do is to argue that [W.R.], you know, there is
reason to believe that he downloaded it.
So, I mean, facts are facts and I’ll let you bring out any facts
that you want to, it’s the inferences and the arguments from it so . . .
if [W.R.] ends up on the stand, you can ask him, you know, about
that or if [Meisel] testifies, as you indicated he was going to, you can
ask him about who he knows had access.
What I am not going to let you do is to argue to the jury that
that’s evidence that they downloaded it.
C. The Trial
1. Meisel’s Opening Statement
During his opening statement, Meisel did not contest the presence of child
pornography on his external hard drive, but asserted he was not responsible for its
presence on his computer. In that regard, he noted some of the child pornography
was placed on the hard drive approximately a year before he purchased the laptop
-12-
computer. 9 He further asserted that although the computer was password
protected, it was often left running. In such situations, Meisel claimed anybody
could access the computer. Furthermore, according to Meisel, numerous people
passed through the residence while he was absent and some of those people had
access to the computer. Finally, Meisel asserted his busy schedule as a volunteer
meant he spent much time away from the residence he shared with Thomas.
2. The Government’s Case
The government called four witnesses, three law enforcement officers and
Thomas, presenting a powerful (particularly forensic) case for Meisel’s guilt.
Detective Wright testified she connected to the Ares network on May 9,
2014, and used special software to connect to a computer with hundreds of files
of suspected child pornography. 10 The username associated with the computer
9
To be clear, the parties at trial vigorously contested the date Meisel
purchased the external hard drive. Citing Meisel’s statements during his
interview with officers, the government contended Meisel owned the external
hard drive before he bought the computer at issue in this case and asked the jury
to infer Meisel placed the child pornography on the external hard drive via his
previous computer. Meisel, on the other hand, testified he purchased the external
hard drive shortly after he bought the computer at issue here.
10
Wright testified she would not have been able to observe the suspect files
unless the user was on “the internet with the [Ares] program running.” She made
clear on cross-examination, however, that the user did not have to be sitting at the
computer for the computer to make files available to other members of the Ares
network. Instead, all that was necessary was the user’s computer was running and
connected to the internet. Importantly, however, the computer forensic examiner
testified the Ares program on Meisel’s computer was not configured to start
automatically when the user signed on to the computer. Accordingly, for files to
(continued...)
-13-
was “UNI1.” Wright obtained the computer’s IP address, leading to a search
warrant for Meisel’s residence. Officers executed the search warrant on June 13,
2014. They seized Meisel’s laptop computer, which had a picture of a unicorn on
it. 11 The laptop was attached to an external hard drive. Wright conducted a
forensic preview of Meisel’s laptop. That preview verified the presence of child
pornography on Meisel’s computer.
Thomas testified Meisel lived with her for about three years. W.R. lived
with them for one year, but had been gone from the residence for about one year
before the execution of the warrant. She had shared Meisel’s computer, but
bought her own computer after discovering, about one year before the events in
question, child pornography on Meisel’s computer. Meisel blamed W.R. for the
presence of child pornography. Thereafter, according to Thomas, Meisel “was the
only one that was ever on there because he wouldn’t let anybody use his
10
(...continued)
be shared from Meisel’s computer, the user would have to manually turn on file
sharing each time the computer was logged on.
11
As to this laptop computer, the parties presented the following stipulation
to the jury: (1) “[Meisel] purchased his laptop from Hometown Rent-to-Own.”;
(2) “The laptop was purchased September 14, 2011 and it was a used laptop at the
time it was purchased by [Meisel].”; and (3) “The reference on his computer to . .
. HT . . . refers to Hometown and reflects that Hometown purchased the computer
new and later set up operating systems on the computer under the account name . .
. HT . . . .”
-14-
computer.” 12 On cross-examination, Thomas testified she slept during the day
about three times a week; there were frequent and regular visitors to the home she
shared with Meisel, including at least one of Thomas’s caretakers, J.H., who had a
key to the residence; and Meisel was usually away from the home during the day
doing volunteer work. 13 On redirect, Thomas testified she had never seen
12
When asked to provide examples of this restriction, Thomas testified as
follows:
A. Well, like, his son wanted to get on it and he wouldn’t let
him. He has had people over at the house ask if they could get on it
for a minute to just check their e-mail or something, and he wouldn’t
let them.
Q. Would you ever have other individuals that would come
over to the house and bring their own computer?
A. Yes.
Q. And why would they bring their own computer?
A. Because they wanted to be able to get on the internet and,
you know, they knew he wouldn’t let them use his.
Q. All right. So these are folks using the internet but not
using his computer?
A. Right.
13
When asked whether she observed “inappropriate behavior by [Meisel]
toward young children” during the time they lived together, Thomas testified:
A. Well, he—any time he seen a child he went up to them. He
would do magic tricks to get their attention or he would just, uh, talk
to them and stuff and I didn’t think anything of it at the time, I just
thought, you know, he liked little kids, but he was always attracted to
(continued...)
-15-
anybody else using Meisel’s computer to look at child pornography and had never
awakened to find somebody using Meisel’s computer.
Detective Kimberly Kleinsorge testified as to her interview with Meisel
during the execution of the search warrant. After Kleinsorge authenticated a
recording and transcript of her interview with Meisel, the recording of the
interview was played for the jury. Portions of the interview are set out above.
See supra at 3-5. To summarize the most salient points, Meisel admitted using
Ares, stated his Ares identifier “UNI1” was consistent with his computer user
profile and his love of unicorns, and stated as follows about the presence of child
pornography on his computer: “If it’s on there, and it’s recent, then it had to have
been me.” Kleinsorge testified she conducted a forensic examination of Thomas’s
computer and additional electronic devices found in Thomas’s residence. Nothing
relating to Ares or child pornography was found on any of those devices. There
13
(...continued)
little kids.
Q. And my question is, again, did you ever observe anything
inappropriate by [Meisel]?
A. No, I did not.
Q. And while you lived with [Meisel] at the house did you
ever see him, [Meisel], looking at child pornography on the
computer?
A. I didn’t see him do it.
-16-
was no evidence of the use of “cleaner” or “erasing” programs as to Thomas’s
personal computer or other electronic devices found in Thomas’s home.
Forensic examiner Michael Randolph testified as to his examination of
Meisel’s laptop computer. Highlights of that testimony are set out above. See
supra at 5-7. It is, however, worth emphasizing aspects of Randolph’s testimony.
Randolph testified via a “virtual tour” of Meisel’s computer. 14 Randolph testified
that of the three user profiles on Meisel’s computer, “Open,” “Linda,” and
“Unicorn,” only Meisel’s Unicorn profile contained child pornography. Within
Meisel’s user profile, Windows Media Player was one of the most commonly used
programs. Upon opening Windows Media Player, the user was presented with a
“list of the most recently opened files with this program.” Video files on that list
“contain[ed] names that appear to be child pornography related.” Randolph
testified nine videos recently watched in Windows Media Player involved
suspected child pornography and seven of the nine suspected videos were found
on the external hard drive. 15 Likewise, the list of most recently opened files
14
That is, as he testified, Randolph showed the jury relevant aspects of
Meisel’s computer on a video screen in the courtroom. For example, Randolph
could, inter alia, open the Windows Media Player and the jury could see for itself
that many of the recently watched videos involved child pornography and the
majority of those recently viewed videos were located on the external hard drive.
Thus, as to each important aspect of the forensic examination, the jury was able to
observe the actual set up and operation of Meisel’s computer and external hard
drive. That virtual tour is part of the record on appeal.
15
Windows Media Player was not the only program on Meisel’s computer
(continued...)
-17-
associated with the WordPad 16 program included material relating to “incest,
erotic preteen girls, [and] kiddie porn.”
Randolph next testified about the Ares file-sharing program installed on
Meisel’s computer. He noted Ares, with a username “UNI1,” was installed on the
computer the same day Meisel purchased the laptop. Notably, the Ares program
on Meisel’s computer was customized (i.e., not set to run with default settings).
Instead, Ares was disabled from running automatically, downloads from Ares
were programmed to save in the “Test” folder on the external hard drive, and Ares
was programmed to share files only from the “Test” folder. The UNI1 Ares
profile had been used to search for files with terms associated with child
pornography. Files on the external hard drive that were manually set to be
available for sharing were descriptively titled in a way that made clear they were
child pornography. Thousands of images and over three hundred videos were
available to be shared from Meisel’s Ares profile, most with child-pornography-
related names and content. Notably, the “Test” folder and its subfolders had been
15
(...continued)
used to watch videos. For instance, Randolph also displayed for the jury Meisel’s
“DIVX player.” Unlike Windows Media Player, which likely came bundled as
part of the computer’s operating system, the DIVX player was specifically
downloaded onto Meisel’s computer. As was true of Windows Medial Player, the
list of recently opened files in the DIVX player contained names consistent with
child pornography. Some of those files were on the external hard drive.
16
Randolph testified that WordPad is a “Windows default program . . .
which is used to create and read and open text files.”
-18-
set by the user to show “large” previews of the contents, such that an individual
even casually reviewing the contents of the “Test” folder would immediately see
the presence of child pornography. 17 The Ares program had been used as recently
as June 11, 2014, two days before the execution of the warrant.
On cross-examination, Randolph agreed his examination revealed numerous
external devices had, at some undetermined time, been plugged into Meisel’s
computer, including an RCA MP3 device labeled “LINDA’S MP3,” and flash
drives labeled “[W.R.’s]” and “[J.H.’s].” Forensic evidence also established some
of the suspected child pornography found on the external hard drive originated
from a computer different from Meisel’s computer. Moreover, most of the
pornographic videos originated from “built-in administrator[]” accounts,
including two video files created on the afternoon of June 10, 2014.
3. The Defense Case
J.H. was Meisel’s first witness. J.H. was Thomas’s caregiver and, in that
capacity, had a key to the house Thomas shared with Meisel. J.H. testified that
during his time working for Thomas, numerous people were guests at the house
and confirmed Meisel would, “at times,” leave his computer running with a
17
Meisel specifically stated during his interview with Kleinsorge that he
“went on” the Ares program “a couple of weeks” before the execution of the
warrant. Randolph’s forensic examination verified there was activity on both the
computer and external hard drive in the weeks before the warrant execution and
that “all the activity on the external hard drive was within [the] test folder.”
-19-
“slots” game playing while he was not present. He also testified he used Meisel’s
computer once, “just for a few minutes” right before Meisel’s arrest, to order
Frisbee golf discs. Although he was somewhat unsure, J.H. thought Meisel was
not at home when he bought the discs. He testified he called Meisel, who gave
him permission to use the computer. He was able to use the computer without the
password because the slots game was running on the computer. 18
Meisel called Thomas’s granddaughter, Morgan Stasyszen to testify. In
response to a question regarding whether she had ever observed W.R. on Meisel’s
computer, Stasyszen responded as follows:
A. No.
Q. You didn’t?
A. No.
Q. Do you remember talking to our investigator, Anthony?
A. Yes.
Q. And do you remember telling him that you saw [W.R.] on
the computer when he wasn’t supposed to be?
A. I never seen him on it. He, apparently—he was—[Meisel]
said that he had ways that he could figure out how, uh, [W.R.] was
on it when we were gone.
18
Randolph testified his forensic examination confirmed that, on June 10,
2014, between 5:39 and 6:13 p.m., someone using Meisel’s computer searched for
“pro disc golf set” on Amazon.com.
-20-
Stasyszen also testified she had never seen anybody else on Meisel’s computer
and that neither she nor her brother had been allowed to use Meisel’s computer
without him present in the home. 19
Nicholas Eady and Susan Musson testified for Meisel. Both testified they
were familiar with Meisel because of Meisel’s active volunteer efforts and
thought highly of his character and work-ethic. Both conceded on cross-
examination they had little knowledge of Meisel’s home life and no knowledge of
his computer activities.
Meisel testified on his own behalf. With regard to W.R. and the laptop,
Meisel testified as follows:
Q. And with respect to your computer, did [W.R.] have access
to your computer?
A. Yes.
Q. And how did—what form did that take? How did you
make it available to him?
A. Well, the computer was always in the living room, I never
put it anywhere else and, originally, I let him have the password to it.
Q. And was there some time that you realized that he was
using the computer without your permission?
19
Anthony Scognamillo, an investigator for the defense, interviewed
Stasyszen prior to her testimony. Scognamillo testified Stasyszen never stated
she observed W.R. on Meisel’s computer. Instead, consistent with her testimony
at trial, she stated that Meisel speculated in her presence that W.R. had used his
computer when he was absent from the residence.
-21-
A. Yes.
Q. And did you speak to him about it?
A. I spoke to him about using the computer but he denied it
was him but I knew he was doing it.
Q. And you heard the testimony from Ms. Thomas about
finding the references to child pornography sites?
A. Yes.
Q. Do you recall that incident?
A. Yes, I do.
Q. And could you describe that for the jury, how that occurred
and what you remember?
A. She was up all night or something, I can’t remember
exactly how that came about there, but when I had got up in the
morning she mentioned to me and showed them to me.
I looked at them, I tried to open a couple of them to see what
they were, because I saw the titles, and they wouldn’t open so I
figured they were mostly deleted files so I just went ahead and
deleted them. I opened one or two and there was just pictures that I
deleted right away.
Q. And was [W.R.] living with you at the time or not?
A. Um . . . .
Q. As best you recall.
A. Best I can recall, I believe he was.
Q. Okay. And what action did you take after seeing those
items on the—or those references on the laptop?
A. Well, most immediately was changed the password.
-22-
Q. And did you do anything with respect to the references to
the child pornography on the—
A. Oh, I just deleted them.
Meisel also asserted J.H.’s use of his computer had been undertaken without
permission. According to Meisel, he did not give J.H. permission to shop for golf
discs. Instead, he recalled J.H. had proceeded without permission, then simply
told Meisel he had done so after the fact. Meisel testified he thought he was
volunteering at the food bank during this incident.
Meisel testified he had no idea how the child pornography got on the
external hard drive. He said he never searched for child pornography, had no
interest in child pornography, did not use Ares to obtain or share child
pornography, and was just as upset about the contents of the child pornography as
anyone else. Meisel testified he used the computer primarily for playing games.
He explained he worked at the food bank Monday, Wednesday, and Friday
mornings; met with the men’s group at his church on Saturday mornings; and
went to church on Sunday mornings. He testified he often left the computer on
and running when he was not at home, primarily because he was running slots,
gaming, or downloading a movie or music from Ares. He thus had no idea if
others used his computer when he was not home. Meisel “stumbled upon” child
pornography on one occasion when he downloaded what he thought was a music
video, but was instead a nude girl dancing. He stated he deleted the file
-23-
immediately. Meisel testified he bought the external hard drive at a yard sale
approximately one week after he purchased the laptop. He stated he purchased
the external hard drive as a backup to the laptop computer because the hard drive
of his previous computer had crashed.
On cross-examination, Meisel admitted he initially told officers he
purchased the external hard drive three and a half years ago, which dates to late
2010, not September 2011. He testified he was aware there were some folders on
the external hard drive when he purchased it, but asserted he did not view their
contents or delete them. He specifically remembered the existence of a “Test”
folder on the external hard drive, although he admitted he had never mentioned
this fact during his lengthy interview with Detective Kleinsorge. He also testified
any confusion during his interview with Kleinsorge flowed from the fact there
was a separate “Test” folder on the computer’s internal hard drive and it was that
“Test” folder, not the “Test” folder on the external hard drive, where W.R.
supposedly stored child pornography. Meisel admitted he had some computer
training, knew how to assign a drive letter, and actually assigned the external hard
drive as the H drive. Nevertheless, Meisel asserted he had never seen the “Test”
folder on the external hard drive listed as the shared file in Ares.
-24-
4. Jury Instructions
Prior to the close of evidence, Meisel submitted a package of jury
instructions to the district court. His proposed instruction number four provided
as follows:
The government must prove, beyond a reasonable doubt, that
the offenses charged in this case were actually committed and that it
was the defendant who committed them. Thus, the identification of
the defendant as the person who committed the offenses charged is a
necessary and important part of the government’s case.
If, after examining all of the testimony and evidence in this
case, you have a reasonable doubt as to the identity of the defendant
as the person who committed the offenses charged, you must find the
defendant not guilty.
This instruction is derived from Tenth Circuit Pattern Criminal Jury Instruction
1.29 (2011), a pattern instruction dealing with eyewitness identifications. The
district court declined to give the jury Meisel’s requested “identity” instruction.
5. The Parties’ Closing Arguments
The parties’ closing arguments made clear to the jury that this case boiled
down to one question: Was Meisel the person who placed child pornography on
the external hard drive attached to his computer?
The government walked through the forensic evidence and argued, based on
that evidence and Meisel’s statements to Kleinsorge, Meisel purchased and
organized the hard drive before the creation of the “Test” folder. The government
then proceeded to “talk a little bit about the identity evidence.” The government
-25-
asserted the evidence proved beyond a reasonable doubt that it was Meisel, not
W.R. or anybody else, who was responsible for downloading and sharing child
pornography via the “Test” folder on the external hard drive.
In his closing, Meisel asserted that from the very beginning of the
investigation, officers were focused on him to the complete exclusion of other
suspects. He noted this was true even though he was not home and his computer
was running when officers came to execute the warrant. He also noted the person
that was home when officers came to execute the warrant, J.H., “admitted to the
investigators and testified [at trial], he went on the computer without logging in,
without using a password, because it was running, to order golf discs off of
Amazon on June 10th, 5:30 to 6:30, 2014.” Meisel then specifically argued the
evidence demonstrated W.R. previously placed child pornography on the
computer and that, in response, he removed that child pornography immediately
after Thomas brought it to his attention. Finally, Meisel reminded the jury
Randolph’s forensic evidence demonstrated there “were other devices, users
accessing that external hard drive.”
In rebuttal, the government first focused on the power of the forensic
evidence as demonstrated to the jury through the virtual machine tour of Meisel’s
computer and external hard drive. The government then refuted Meisel’s
assertion investigators had focused exclusively on him, noting the evidence
-26-
demonstrated investigators had looked into J.H. as a potential suspect. Finally,
the government finished by arguing as follows:
Failed logins. Those are important. Why are they important?
Because it means the computer was logged out. Think about that. If
there is failed logins, it means the computer was logged out.
And if it’s an alternative perpetrator, somebody else, why
would you need to login? Just take the external drive. If you want
the child porn, just take the external drive, because you know where
it is; you’re the one that put it there.
The context tells you there is no alternative perpetrator. It’s
the defendant. That argument is a rattle: It’s meant to put a question
out there. . . .
6. The Verdict
After roughly an hour and fifteen minutes of deliberation, the jury returned
unanimous guilty verdicts as to both the possession and distribution counts.
III. ANALYSIS
A. Alternative Perpetrator Evidence
1. Standard of Review
Despite Meisel’s assertions to the contrary, this court’s precedents make
clear we review a “decision to admit [or deny] alternative perpetrator evidence
under an abuse of discretion standard.” United States v. Jordan, 485 F.3d 1214,
1218 (10th Cir. 2007). Under this standard, we will reverse only if “the district
court’s decision is arbitrary, capricious, or whimsical, or results in a manifestly
unreasonable judgment.” Id. (quotation omitted). The district court’s decision is
-27-
entitled to deference because of “its first-hand ability to view the witnesses and
evidence and assess credibility and probative value.” Id. Thus, the district
court’s decision here to limit, to one degree or another, alternative perpetrator
evidence “will not be disturbed unless [this court] has a definite and firm
conviction that the [district] court made a clear error of judgment or exceeded the
bounds of permissible choice in the circumstances.” Id. (quotation omitted); see
also id. at 1222 (noting that even though this court might have made a different
choice in the first instance, the district court did not abuse its discretion in
refusing to admit alternative perpetrator evidence).
Meisel concedes the district court allowed him to present to the jury any
evidence he had regarding other individuals’ access, potential or actual, to his
computer and external hard drive. Meisel’s Reply Br. at 4. He, nevertheless,
argues that having allowed him to introduce such evidence, the district court’s
real error was in not allowing him to utilize the term “alternative perpetrator” in
presenting his case to the jury. It is this issue, he asserts, that is one of law
subject to de novo review. The district court did, indeed, allow Meisel to admit
any and all evidence indicating others had access to, and use of, his computer and
external hard drive. The question then becomes whether that evidence, in the
context of the whole trial, was sufficient to allow Meisel to argue a particular
person was the person who placed the child pornography on his external hard
drive. In answering that question in the negative, the district court drew on its
-28-
unique “first-hand ability to view the witnesses and evidence and assess
credibility and probative value.” Jordan, 485 F.3d at 1218. The district court
determined the proffered evidence was relevant and admissible to disprove the
government’s assertion Meisel was guilty because, at least in part, he had
exclusive use, possession, and control over the computer, but did not satisfy the
nexus requirements set out by both the Supreme Court and this court for arguing
either W.R., J.H., or S.H. was the actual guilty party. 20 Because the district court
engaged in exactly the kind of evidentiary balancing contemplated in Jordan, the
appropriate standard of review is abuse of discretion. Id. at 1222 (discussing the
Supreme Court’s decision in Holmes in addressing whether the district court
abused its discretion by precluding a defendant from raising an alternative
perpetrator defense). 21
20
In any event, as demonstrated by the parties’ closing arguments, and
borne out by the entirety of the trial transcript, it is abundantly clear the district
court, the parties, and the jury fully understood Meisel was asserting J.H. and/or
W.R. was responsible for the child pornography found on Meisel’s external hard
drive. This matter is discussed more fully below.
21
Meisel fails to cite any support for his contention that having admitted
evidence others had access to his computer, the district court was obligated to
allow him to argue any inference he would like from the evidence. This is most
surely because that contention is wrong. It is not remotely odd for a district court
to admit evidence for a limited purpose. See Fed. R. Evid. 105 (recognizing
district court’s power to admit evidence for a limited purpose). Thus, contrary to
Meisel’s arguments, the district court decision at issue here, the exclusion (at
least in theory) of evidence a particular person actually committed the crime with
which Meisel was charged, falls neatly within the evidentiary rubric and standards
set out in Jordan. It is for that same reason Meisel’s reliance on this court’s
(continued...)
-29-
2. Legal Standard
Because the legal framework applicable to alternative perpetrator evidence
is set out at length in Jordan, this court need do no more than summarize the law.
The Supreme Court has noted that special considerations arise when a court is
faced with a defense theory of an alternative perpetrator: “Evidence tending to
show the commission by another person of the crime charged may be introduced
by accused when it is inconsistent with, and raises a reasonable doubt of, his own
guilt; but frequently matters offered in evidence for this purpose are so remote
and lack such connection with the crime that they are excluded.” Holmes, 547
U.S. at 327 (quotation omitted); see also id. (holding that third-party guilt
evidence may also be excluded “where it does not sufficiently connect the other
person to the crime, as for example, where the evidence is speculative or remote,
or does not tend to prove or disprove a material fact in issue at the defendant’s
trial” (quotation omitted)). As this court explained in McVeigh:
21
(...continued)
decision in United States v. Ortiz, 804 F.2d 1161 (10th Cir. 1986), is unavailing.
In Ortiz, the question before this court was whether evidence properly admitted
during the government’s case was sufficient to place the defense of entrapment at
issue. Id. at 1163-65. Ortiz held this question was one of law for the court. Id.at 1164 n.2. Here, however, the district court never admitted any of Meisel’s
evidence for the purpose of demonstrating an alternative perpetrator committed
the crime. Instead, the district court admitted such evidence for the limited
purpose of rebutting the government’s assertion Meisel maintained exclusive
control of the laptop computer and external hard drive. Thus, as was the case in
Jordan, 485 F.3d at 1218, 1221-22, the question at issue on appeal is whether the
district court abused its discretion in resolving this evidentiary issue.
-30-
Although there is no doubt that a defendant has a right to attempt to
establish his innocence by showing that someone else did the crime,
a defendant still must show that his proffered evidence on the alleged
alternative perpetrator is sufficient, on its own or in combination
with other evidence in the record, to show a nexus between the crime
charged and the asserted “alternative perpetrator.” It is not sufficient
for a defendant merely to offer up unsupported speculation that
another person may have done the crime. Such speculative blaming
intensifies the grave risk of jury confusion, and it invites the jury to
render its findings based on emotion or prejudice.
153 F.3d at 1191 (citation omitted). Thus, a district court “may properly deny
admission of alternative perpetrator evidence that fails to establish, either on its
own or in combination with other evidence in the record, a non-speculative
‘nexus’ between the crime charged and the alleged perpetrator.” Jordan, 485
F.3d at 1219.
3. Application
Because the district court allowed Meisel to introduce all available
evidence regarding the use by, or proximity of, others to his computer and
external hard drive, we focus on that evidence to determine whether the court
abused its discretion in granting the government’s in-limine motion to exclude
such evidence when offered for the purpose of arguing an alternative perpetrator
committed the charged crime. Cf. id. at 1220 (considering both proffered and
admitted evidence in deciding whether the district court abused its discretion in
precluding an alternative perpetrator defense).
-31-
a. S.H.
Trial testimony reveals S.H. visited the home Meisel shared with Thomas,
Thomas regularly slept during the day, and Meisel left his computer on with a
slots program running. Given this extremely limited evidence, we have no doubt
the district court acted within its discretion in refusing to admit the evidence for
the purpose of arguing S.H. is the person who committed the child pornography
crimes set out in the indictment. If mere proximity and potential access were
sufficient to argue an alternative perpetrator committed the crime, this court can
hardly envision a criminal trial that would not involve such a defense. But see id.
at 1220-22 (holding the district court did not abuse its discretion in limiting
alternative perpetrator evidence where the record demonstrated the supposed
alternative perpetrator was near the victim no more than ten minutes before the
crime). 22
22
Meisel notes his proffer asserted child pornography was found on S.H.’s
cell phone. This might be meaningful if the record or proffer demonstrated any
kind of connection between that child pornography and the child pornography
found on Meisel’s hard drive. Instead, as Meisel readily acknowledges, none of
the images found on S.H.’s cell phone matched images found on Meisel’s hard
drive. Furthermore, there is no evidence, forensic or otherwise, demonstrating a
relationship between the two sets of images (e.g., common source or thematic
consistency). Thus, the proffered evidence regarding S.H.’s cell phone appears to
be designed to do nothing more than trigger one of the primary concerns with
alternative perpetrator evidence— such evidence “would invite the jury to blame
absent, unrepresented individuals . . . for whom there often may be strong
underlying emotional responses.” United States v. McVeigh, 153 F.3d 1166,
1191-92 (10th Cir. 1998). Thus, this evidence is nothing more than prior bad acts
(continued...)
-32-
b. W.R.
Evidence implicating W.R. as the actual perpetrator of the crimes set out in
the indictment is similarly speculative and remote. No witness testified at trial to
having observed W.R. using Meisel’s computer. Instead, Thomas testified that
when she found child pornography on Meisel’s computer, Meisel blamed W.R.
Stasyszen testified that during her visits, she never observed anyone use the
computer, specifically including W.R. Instead, she noted Meisel asserted W.R.
was using his computer without permission. Stasyszen testified Meisel stated he
had an (unexplained) way of “figur[ing] out” whether W.R. was on the computer
while he was away from the home. Meisel testified W.R. had access to the
computer and knew the password, 23 but did not testify he saw W.R. actually using
22
(...continued)
evidence. As noted above, Meisel’s opening brief on appeal specifically declined
to challenge the district court’s exclusion of this type of evidence. See supra n.7.
23
Meisel asserts his trial testimony demonstrates W.R. had “permission” to
use the computer. This is not an entirely accurate assessment of the evidence.
Meisel testified as follows:
Q. And with respect to your computer, did [W.R.] have access
to your computer?
A. Yes.
Q. And how did—what form did that take? How did you
make it available to him?
A. Well, the computer was always in the living room, I never
put it anywhere else and, originally, I let him have the password to it.
(continued...)
-33-
the computer. Again, without explaining how, Meisel simply asserted he knew
W.R. was using the computer without his permission. Finally, the government’s
forensic evidence indicated an external device bearing W.R.’s name, a flash drive
labeled “[W.R.’s]” was, at some point, attached to Meisel’s computer.
At most, then, the evidence at trial demonstrated W.R. had used Meisel’s
laptop and Meisel had some, unexplained, method of determining W.R. viewed
child pornography while on the computer. This court need not determine whether
this exceedingly limited evidence would be sufficient to present an alternative
perpetrator defense to the jury involving W.R. because the evidence lacks any
meaningful temporal link to the crimes at issue at trial. That is, there is
absolutely no evidence indicating W.R. was anywhere near Meisel’s computer or
external hard drive for at least one year before the events at issue. Instead, the
uncontroverted evidence reveals that approximately one year before officers
initiated this investigation, Thomas asked W.R. to leave the residence. The
evidence further reveals that when, thereafter, Thomas found child pornography
23
(...continued)
Q. And was there some time that you realized that he was
using the computer without your permission?
A. Yes.
Q. And did you speak to him about it?
A. I spoke to him about using the computer but he denied it
was him but I knew he was doing it.
-34-
on Meisel’s computer, Meisel blamed W.R. and said he removed all child
pornography from the computer at that time. The undisputed forensic evidence
demonstrates the Ares program was not set to download or share files
automatically, but that file sharing had to be manually initiated each time the
computer was logged on. Given all this, the district court most assuredly did not
abuse its discretion in determining Meisel had failed to demonstrate even the
remotest nexus between W.R. and the crimes at issue in Meisel’s trial. That is,
absent any evidence as to how W.R.’s use of Meisel’s computer over a year
before the events in question could have led to the presence of child pornography
on Meisel’s hard drive and/or could have led to the distribution of child
pornography from Meisel’s computer via Ares on May 9, 2014, the jury would
have to engage in “unsupported speculation” to determine W.R. was responsible
for the crimes with which Meisel was charged. McVeigh, 153 F.3d at 1191.
c. J.H.
Although this court has no difficulty concluding the district court did not
err in excluding alternative perpetrator evidence as to S.H. and W.R., the
exclusion of such evidence as to J.H. is an entirely different matter. In support of
his assertion J.H. was a viable alternative perpetrator for the crimes with which
Meisel was charged, Meisel adduced significant evidence of a connection (i.e.
both proximity and use) between J.H. and the computer. J.H. testified he and
Meisel lived together in Belle Plaine, Kansas, for up to three years before Meisel
-35-
moved into Thomas’s home. Meisel bought the laptop computer during the period
he cohabited with J.H. J.H. continued to have access to the computer and hard
drive when Meisel moved into Thomas’s home. Thomas testified J.H. was her
caretaker for the entire time Meisel lived with her. In that capacity, J.H. had a
key to Thomas’s home and was present in the home approximately four days a
week. Thomas testified Meisel was often absent from the home doing volunteer
work and she often slept during the day. J.H. was present in the home during
these time periods.
The evidence further reveals that Meisel occasionally left his computer
running while he was absent from the home and that, when this was the case,
anybody could access the computer without a password. In addition to potential
access, the record contains evidence J.H. actually used Meisel’s computer. The
forensic evidence reveal a flash drive linked to J.H.’s name had, at some point,
been plugged into the computer. J.H. accessed the computer on June 10, 2014,
just a few days before the warrant was executed. Finally, the record reveals that
on that same day, a day Meisel was possibly absent from the home, child
pornography was downloaded onto Meisel’s hard drive via Ares. That is, the
government’s forensic evidence indicates J.H. was on the computer shopping for
“golf discs” from 5:39 p.m. to 6:13 p.m., while Ares downloads of child
pornography occurred at 2:21 p.m., 2:56 p.m., 4:00 p.m., 4:31 p.m., and 6:40 p.m.
-36-
Thus, in summary, Meisel adduced evidence of J.H.’s consistent proximity
to the subject computer and external hard drive, actual access of the computer on
more than one occasion, and use of the computer in close temporal proximity to
the download of child pornography from the computer to the external hard drive
via Ares. Given all that, the assertion the district court erred in concluding
Meisel failed to establish a sufficient nexus between J.H. and the crimes at issue
here is not without serious persuasive force.
In ruling as it did, the district court stated two justifications. First, it stated
Meisel’s “allegation that because [J.H.] used the computer for a lawful purpose
between two times in which the computer was used to download child
pornography, it must also be that [J.H.] was also the person responsible for
accessing and downloading the child pornography. This notion is merely
‘unsupported speculation’ and lacks a sufficient nexus to link [J.H.] to the crime
charged.” See supra at 11 (setting out entirety of the district court’s order). As
noted by Meisel, however, neither the government nor the district court has
identified case law holding that alternative perpetrator evidence is admissible
only if it conclusively demonstrates the guilt of the alleged alternative
perpetrator. Instead, such evidence is admissible if a defendant’s “proffered
evidence on the alleged alternative perpetrator . . . , on its own or in combination
with other evidence in the record, . . . show[s] a nexus between the crime charged
and the asserted ‘alternative perpetrator.’” McVeigh, 153 F.3d at 1191; see also
-37-
Jordan, 485 F.3d at 1222 (holding test for admissibility of alternative perpetrator
evidence is not as onerous as the standard courts apply in determining whether
evidence is sufficient to support a conviction). Second, the district court
indicated “the evidence suggests that [Meisel] was present and monitoring
[J.H.’s] use of the computer during this time.” See supra at 11. The relevance of
the district court’s evidentiary determination about Meisel’s presence during
J.H.’s use of the computer is not altogether clear. There is no doubt a jury could
conclude Meisel was present during J.H.’s use of the computer on June 10, 2014.
Similarly, however, a jury could conclude Meisel was not present on that date at
the relevant time. J.H. testified Meisel was not present and he accessed the
computer only after calling Meisel to obtain the password. Meisel likewise
testified he was not present, but equivocated as to that fact on cross-examination.
In addressing the admissibility of alternative perpetrator evidence, however, the
strength of the government’s case is not generally a relevant concern. Holmes,
547 U.S. at 320 (noting a district court should not exclude alternative perpetrator
evidence merely because the district court thinks the government’s case is strong
and the defendant’s alternative perpetrator argument or evidence is weak); see
also Jordan, 485 F.3d at 1222 (noting the “Supreme Court has cautioned us to be
wary of per se rules excluding evidence of third-party guilt merely because the
prosecution’s case is strong enough” (quotation omitted)).
-38-
Ultimately, however, this court need not definitively decide whether the
district court abused its discretion in refusing to admit Meisel’s evidence for the
purpose of arguing J.H. was the one who committed the crimes at issue because,
even assuming the existence of such an error, the record demonstrates the error is
harmless beyond a reasonable doubt. United States v. Russian, 848 F.3d 1239,
1244 (10th Cir. 2017) (“For a constitutional error to be held harmless, the court
must be able to declare a belief that it was harmless beyond a reasonable doubt.”
(quotation omitted)). 24 In reaching this conclusion, we rely on two equally
important considerations.
First, the record makes clear Meisel’s alternative perpetrator theory as to
J.H. (and for that matter, W.R.) was tried to the jury by acquiescence of the
parties. See Jordan, 485 F.3d at 1222-24 (concluding any assumed error in that
case was harmless because the alternate perpetrator defense was actually
presented to, and considered by, the jury). As noted above, during its final
pretrial hearing on the matter, the district court indicated Meisel could adduce any
evidence he had indicating others had access to his computer. See supra at 12.
24
We recognize it is highly unlikely the harmless error standard applicable
to constitutional errors governs in this case. See supra n.21 (discussing the nature
of the alleged error and concluding it is evidentiary, rather than constitutional, in
nature); Jordan, 485 F.3d at 1222 (applying the non-constitutional harmless error
standard to a district court’s decision to exclude alternative perpetrator evidence).
Because this court is firmly convinced the error at issue here is harmless even
under the heightened harmlessness standard applicable to constitutional errors, we
need not definitively resolve which standard actually applies.
-39-
Meisel took full advantage of this ruling, adducing considerable evidence, as
cataloged above, regarding J.H.’s access to, and use of, his computer. At no point
did the government ask the district court to instruct the jury, pursuant to Fed. R.
Evid. 105, that such evidence was not admitted for the purpose of Meisel raising
an alternative perpetrator defense. Indeed, Meisel was allowed to inquire as to
potential failings in the government’s limited investigation into whether J.H. was
the person responsible for the child pornography found on Meisel’s computer.
During J.H.’s direct examination, he admitted that when he came to Thomas’s
house, whether for work or to socialize, he brought his own laptop computer. On
cross-examination, J.H. testified he gave Kleinsorge permission to examine his
computer and that she did not find any child pornography during that search.
Then, on redirect, Meisel adduced testimony from J.H. indicating the first time
Kleinsorge asked to review J.H.’s computer, no search took place because J.H.
could not remember the password. When asked whether the search that did
ultimately take place occurred “about a month and a half” after the initial request,
J.H. indicated he could not remember the exact time frame, but admitted it was
sufficiently long so as to allow him to take a “trip” in the interim. Finally, though
Meisel did not use the term alternate perpetrator during his closing argument, no
reasonable juror could think he was arguing anything else as to both W.R. and
J.H. Indeed, the government noted as much, arguing to the jury as follows:
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And if it’s an alternative perpetrator, somebody else, why
would you need to login? Just take the external drive. If you want
the child porn, just take the external drive, because you know where
it is; you’re the one that put it there.
The context tells you there is no alternative perpetrator. It’s
the defendant. That argument is a rattle: It’s meant to put a question
out there. . . .
Thus, the record makes clear Meisel’s theory J.H. was responsible for the
child pornography found on the external hard drive was presented to, and rejected
by, the jury. See Jordan, 485 F.3d at 1223 (“[M]uch of Jordan’s alternative
perpetrator theory banks on already admitted evidence . . . . Jordan[] . . . also had
the opportunity to raise all the other evidence that points towards [his] innocence.
. . . Accordingly, the district court’s preclusion of the proffer did not prevent
Jordan from offering an alternative perpetrator defense. Instead, the jury chose to
disbelieve the theory.” (quotations, citation, and alteration omitted)).
Second, despite Meisel’s protestations to the contrary, the evidence of his
guilt is overwhelming. See United States v. Glass, 128 F.3d 1398, 1403 (10th Cir.
1997) (“To hold an error of constitutional dimension harmless, we must conclude
the properly admitted evidence of guilt is so overwhelming, and the prejudicial
effect of the [purported error] is so insignificant by comparison, that it is clear
beyond a reasonable doubt that the improper use of the admission was harmless
error.” (quotation omitted)). But see supra n.24 (noting this court is employing
the harmlessness standard applicable to constitutional errors out of a mere
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abundance of caution). Unrebutted and/or unexplained forensic evidence
demonstrates Meisel’s assertion he was unaware of the vast collection of child
pornography stored on his external hard drive is, at the very best, implausible.
The evidence demonstrated child pornography found on the external hard drive
was frequently played on the Windows Media Player and on the DIVX player, a
program specially installed on Meisel’s laptop. This undisputed evidence
rendered entirely incredible Meisel’s attempt to compartmentalize the child
pornography onto a portion of the external hard drive (i.e., the “Test” folder) of
which he claimed to be unaware. That is, there was a consistent interaction
between Meisel’s computer and the child pornography on the external hard drive
and Meisel did not, and could not credibly, argue he was generally unaware of the
contents of the computer and its operating system and programs. Nor does the
trial evidence plausibly support the defense theory that Meisel’s computer was
consistently left on so that others could access it, thereby accounting for the huge
volume of child pornography found on the external hard drive. 25 Instead, the
25
The evidence demonstrates Ares was installed on Meisel’s computer on
the very first day it was purchased and was consistently employed to acquire
and/or distribute child pornography. The computer was frequently logged off and
on, averaging about three times a day, rendering remarkably unlikely Meisel’s
assertion his computer was consistently running in open-access mode when he
was away from home. The computer and its programs were firmly linked via the
forensic evidence to the H drive, the “Test” folder, and subfolders categorized by
specific content. Child pornography downloaded via Ares was consistently sorted
into the “Test” folder’s highly specific subfolders. Child pornography found on
(continued...)
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evidence overwhelmingly proved that after Thomas found child pornography on
Meisel’s computer, Meisel took extraordinary efforts to limit access to his
computer. For that very reason, Meisel stated during his interview that if child
pornography was found on the computer, he was the responsible party. Although
Meisel attempted to explain away that statement at trial with the theory he was
only accepting ultimate responsibility for the computer, rather than admitting
guilt, the evidence to the contrary is simply overwhelming.
Because, despite the district court’s evidentiary ruling, the issue of J.H.’s
potential as an alternate perpetrator was tried to the jury, and because the
evidence of Meisel’s guilt was overwhelming, any assumed error on the part of
the district court was harmless beyond a reasonable doubt.
B. Identity Instruction
1. Standard of Review
Meisel asserts he preserved for appellate review the propriety of the district
court’s refusal to give his requested “identity instruction.” The government, on
the other hand, asserts Meisel abandoned the issue when he failed to raise the
25
(...continued)
the hard drive was also listed in the history of programs on the computer like
Windows Media Player, DIVX, and Adobe Reader. Given that the H drive was
specifically assigned to the external hard drive, Meisel’s assertion he lacked all
familiarity with the H drive’s “Test” folder is implausible. Finally, Meisel’s
assertion he deleted child pornography (supposedly placed there by WR) from a
different “Test” folder, this one located on the computer’s own hard drive, was
not supported by any forensic evidence.
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issue at the final jury-instruction conference the morning the case was submitted
to the jury. This court need not resolve the preservation issue because Meisel is
not entitled to relief even if the propriety of the district court’s refusal to give the
identity instruction is reviewed for abuse of discretion.
This court “review[s] instructions as a whole to determine whether they
accurately informed the jury of the governing law.” United States v. Bowling,
619 F.3d 1175, 1183 (10th Cir. 2010) (quotation omitted). “A theory of defense
instruction is required only if, without the instruction, the district court’s
instructions were erroneous or inadequate.” Id. (alteration and quotation
omitted). “While a defendant is entitled to an instruction on his theory of defense
where some evidence and the law supports the theory, such an instruction is not
required if it would simply give the jury a clearer understanding of the issues.”
Id. at 1183-84 (quotation omitted). We “review a district court . . . refusal to give
a requested instruction under this standard for an abuse of discretion.” Id.
at 1184.
We begin by noting Meisel did not request an identity instruction (i.e., an
instruction based on this court’s pattern jury instruction on eyewitness
identification) for any of the reasons normally relevant to the giving of a
cautionary instruction regarding eyewitness identifications. See United States v.
McGuire, 200 F.3d 668, 676 (10th Cir. 1999) (summarizing considerations
relevant to determining whether a district court abused its discretion in refusing to
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instruct the jury as to “special reliability concerns with eyewitness
identifications”). Instead, he asked for a modified version of that instruction to
make clear his defense at trial was that someone other than himself placed the
child pornography on his external hard drive and subsequently caused the
distribution of that material via the Ares file-sharing program. Accordingly,
Meisel’s requested identity instruction was really a theory-of-defense instruction,
not an instruction as to potential reliability issues regarding an eyewitness to the
child pornography charges. So considered, we conclude the district court did not
abuse its discretion in determining the existing instructions made clear to the jury
Meisel was legally responsible for the charges only if he, personally, knowingly
possessed and distributed the child pornography found on his computer.
Instruction Eleven, especially when coupled with Instructions Eighteen and
Twenty-One, made clear to the jury Meisel was not criminally responsible if some
other person placed the child pornography on his external hard drive and/or
caused his computer to distribute that child pornography. Instruction Eleven told
the jury “a defendant is presumed by law to be innocent. The Government has the
burden of proving a defendant guilty beyond a reasonable doubt. . . . If . . . you
think there is a real possibility that he is not guilty of that crime, you must give
him the benefit of the doubt and find him not guilty of that crime.” Instruction
Twenty-One indicated that “only the defendant is on trial here. You are not to
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return a verdict as to the guilt of any person or persons except the defendant.”
Likewise, Instruction Eighteen specified as follows:
In the situation where the object is found in a place such as a
room or car occupied by more than one person, you may not infer
control over the object based solely on joint occupancy. Mere
control over the place in which the object is found is not sufficient to
establish constructive possession. Instead, in this situation, the
Government must prove some connection between the particular
defendant and the object.
In addition, momentary or transitory control of an object is not
possession. You should not find the defendant possessed the object
if he possessed it only momentarily or did not know that he
possessed it.
This particular instruction, which was requested by Meisel, makes clear that the
jury could not convict simply because the child pornography was found on his
external hard drive. Instead, the government bore the burden of proving beyond a
reasonable doubt that Meisel, not anyone else, knowingly possessed and
distributed child pornography. This specification was further emphasized by
Instructions Thirteen, Fourteen, and Seventeen, all of which addressed the
“knowing” element associated with the crimes charged. These instructions made
clear the jury could convict Meisel only if it found Meisel “knowingly” (i.e.,
“realized what he was doing and was aware of the nature of his conduct and did
not act through ignorance, mistake, or accident”) possessed and distributed child
pornography. Instruction Sixteen, the instruction dealing with distribution
emphasized Meisel could only be guilty of the distribution count if the
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government proved beyond a reasonable doubt that Meisel “knowingly makes
images available on a peer-to-peer file sharing network” and “knowingly allowed
others access to his Ares Shared Folder.”
Viewing the instructions as a whole, we cannot conclude the district court
abused its discretion in refusing to give the jury Meisel’s proposed identification
instruction. Although it is certainly possible Meisel’s proposed theory-of-defense
instruction could have given the jury a “clearer understanding of the issues,” the
district court’s jury instructions were not erroneous or inadequate as given. See
Bowling, 619 F.3d at 1183-84. And although this court, if it were deciding the
issue in the first instance, might well have instructed the jury consistent with
Meisel’s theory-of-defense instruction, the governing standard of review is a
deferential one. See Jordan, 485 F.3d at 1218 (holding that under the abuse-of-
discretion standard, this court will reverse only if “the district court’s decision is
arbitrary, capricious, or whimsical, or results in a manifestly unreasonable
judgment” (quotation omitted)). The district court did not abuse its discretion.
IV. CONCLUSION
For those reasons set out above, the judgment of conviction entered by the
United States District Court for the District of Kansas is hereby AFFIRMED.
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