United States v. Cameron Dean Bates , 665 F. App'x 810 ( 2016 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-14395
Non-Argument Calendar
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D.C. Docket No. 2:12-cr-14054-KMM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CAMERON DEAN BATES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(November 29, 2016)
Before WILSON, MARTIN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
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Cameron Bates appeals his convictions for four counts of knowing receipt of
child pornography, in violation of 18 U.S.C. § 2252(a)(2) and (b)(1); one count of
knowing distribution of child pornography, in violation of 18 U.S.C. § 2252(a)(2)
and (b)(1); and one count of knowing possession of a computer containing child
pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2). Bates argues
that certain reports the government put into evidence at trial were impermissible
hearsay and violated his rights under the Sixth Amendment Confrontation Clause.
He argues as well that the government made improper references to him that also
violated his Sixth Amendment right to a fair trial. Our careful review persuades us
that although Bates is correct that the reports were hearsay and that some of the
government’s remarks were improper, even combining these two errors was
harmless in light of the substantial untainted evidence against him. As a result, we
affirm.
I.
In 2011, the Internet Crimes Against Children, Child Online Protective
Services (“ICACCOPS”) task force got information that someone in the St. Lucie
County, Florida area was downloading and sharing child pornography files over
the Internet. The St. Lucie County Sheriff’s Office began investigating and, after
subpoenaing Internet service providers, linked these files to the addresses of Bates
and Samuel Gruen. Bates worked for Gruen, and had a personal relationship with
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him as well.1 The Sheriff’s Office initially discontinued its investigation of Bates,
but reopened it in May 2012, after receiving another report from the Child
Protective System (“CPS”) database that targeted Bates.
In June 2012, the government got a warrant to search Bates’s home. They
found three computers in his house, and one in his car. All four computers were
searched. The three computers found in Bates’s house belonged to Bates’s family
members and had no child pornography on them. But the government’s initial on-
site search of the computer found in Bates’s car revealed that it had at least eighty
child pornography files.
The government interviewed Bates as well as his wife and children during
the search. Both Bates and his wife told the government in these interviews that
the laptop found in the car belonged to Bates. When Bates was asked about the
child pornography files, he admitted that he downloaded them, but claimed that he
had done so unintentionally. He also admitted he downloaded child pornography
files at Gruen’s home, but claimed to have done that unintentionally as well.
Bates was tried and convicted on eighteen counts and sentenced to 240
months’ imprisonment followed by 15 years of supervised release. Bates appealed,
and this Court vacated his convictions because the district court did not allow
1
The investigation also indicated that Gruen’s neighbor’s Internet connection was used to
access child pornography. However, she used an unsecured wireless network that anyone within
range could join without a password. She testified that she never used her Internet connection to
access child pornography.
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examination of prospective jurors about possible prejudices against Bates because
of his sexual activity with other men. See United States v. Bates, 590 F. App’x
882 (11th Cir. 2014). On remand, the government retried Bates, this time only on
six counts.
At the second trial, Bates’s defense was that the evidence raised a reasonable
doubt about whether he was responsible for the child pornography found on the
computer in his car. Bates argued that because he did not have exclusive control
over the laptop, the child pornography files could have been downloaded by a
friend or family member. His wife and sister-in-law testified that the computer
found in his car was a shared family computer. The government characterized this
defense as a “smokescreen,” to which Bates repeatedly objected.
The government’s case relied primarily on forensic evidence including 110
child pornography files found on Bates’s computer, real-time confirmation of
Bates sharing a child pornography file, and other evidence that only Bates used the
computer. This evidence included his Craigslist posts, personal emails, business
materials, family photos, and personal photos of himself naked. Much of this
evidence was introduced through the testimony of Sergeant Rob Valentine. Sgt.
Valentine explained that he used the ICACCOPS and CPS databases, as well as
data from the National Center for Missing and Exploited Children (“NCMEC”)
that contained known child pornography designations for certain files, to assist in
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his investigation. Over Bates’s objections, the district court admitted ICACCOPS
reports and logs, a CPS report, and a spreadsheet consolidating the data from those
reports and logs. The district court admitted these documents into evidence, ruling
that they were regularly conducted records of law enforcement, and therefore
admissible under the Federal Rule of Evidence 803(6) hearsay exception. Sgt.
Valentine also testified that Bates was a “big fish,” the “worst offender,” and the
“worst user,” which is how he came to investigate Bates. The government used
these same characterizations in their opening statement, examinations of witnesses,
and closing arguments.
The jury found Bates guilty on all six counts. The district court again
sentenced Bates to 240 months’ imprisonment followed by 15 years of supervised
release.
II.
On appeal, Bates asserts two errors by the district court. First, he argues it
was error for the court to admit the ICCACOPS and CPS child pornography
investigation reports, ICCACOPS logs, and NCMEC data (collectively, the
“reports”), because they were impermissible hearsay and violated his rights under
the Sixth Amendment Confrontation Clause. Second, Bates argues that the district
court erred when it allowed the prosecutor to make improper remarks calling him a
“big fish,” the “worst user,” and the “worst offender,” and to characterize his entire
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defense as a “smokescreen.” Bates says these remarks violated his Sixth
Amendment right to a fair trial. He also seeks to have this Court consider the
cumulative effect of these two alleged errors in determining whether he should
receive a new trial.
We review de novo whether hearsay statements are testimonial for purposes
of the Confrontation Clause and review decisions about the admissibility of
evidence for abuse of discretion. United States v. Underwood, 446 F.3d 1340,
1345 (11th Cir. 2006). We also review de novo a claim of prosecutorial
misconduct. United States v. Merrill, 513 F.3d 1293, 1306 (11th Cir. 2008).
A.
First, we turn to Bates’s argument that the reports were impermissible
hearsay and admitted into evidence in violation of his rights under the Sixth
Amendment Confrontation Clause. The Confrontation Clause says that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with
the witnesses against him.” U.S. Const. amend. VI. Impermissible hearsay can
implicate the Confrontation Clause. See United States v. Jiminez, 564 F.3d 1280,
1286 (11th Cir. 2009). Hearsay is a statement that a declarant does not make while
testifying at the trial or hearing, and is offered in evidence to prove the truth of the
matter asserted. Fed. R. Evid. 801(c). Written assertions can constitute hearsay.
Id. 801(a).
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The district court found that the reports, as “record[s] of regularly conducted
activity,” were exceptions to the general prohibition against using hearsay as
evidence. Id. 803(6). Generally, mechanically generated records don’t qualify as
“statements” for hearsay purposes, but when those records are developed with
human input, they can become hearsay statements. See United States v. Lamons,
532 F.3d 1251, 1261–64 (11th Cir. 2008); see also Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 310–11, 129 S. Ct. 2527, 2531–32 (2009) (affidavit
reports of forensic analysis were testimonial and implicated the defendant’s Sixth
Amendment right to confrontation).
The reports challenged here required human input. While the reports largely
contained computer-generated tracking information like dates, times, and online
identifiers that do not qualify as “statements” for hearsay purposes, the data that
matched Bates’s downloaded files to known child pornography relied on input
from law enforcement officers. The CPS and NCMEC data underlying these
reports contained information from officers about the children in the files, as well
as the officers’ opinion about whether the files were known child pornography.
These reports and their underlying data were also testimonial, implicating
the Confrontation Clause. Testimonial statements include those “made under
circumstances which would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial.” Crawford v. Washington, 541
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U.S. 36, 52, 124 S. Ct. 1354, 1364 (2004) (quotation omitted). The record shows
that the government used the reports to demonstrate the steps of Sgt. Valentine’s
investigation and to prove that the files Bates downloaded were child pornography.
The reports and their underlying data were thus impermissible hearsay as well as
testimonial, and therefore their admission into evidence violated the Confrontation
Clause. The district court abused its discretion in admitting them at trial.
Although these records were erroneously admitted into evidence, the error
was harmless. An evidentiary error is harmless if it does not substantially
influence the outcome of the trial and the jury’s verdict was supported by
sufficient, untainted evidence. United States v. Dickerson, 248 F.3d 1036, 1048
(11th Cir. 2001). “For violations of the Confrontation Clause, harmless error
occurs where it is clear beyond a reasonable doubt that the error complained of did
not contribute to the verdict obtained.” United States v. Caraballo, 595 F.3d 1214,
1229 n.1 (11th Cir. 2010) (quotation omitted).
There was sufficient untainted evidence that established Bates’s guilt beyond
a reasonable doubt. Bates admitted to unintentionally downloading child
pornography when he was first interviewed, saying he had deleted it, despite
forensic evidence to the contrary. The police searched four computers, but only
found child pornography on Bates’s personal laptop. Bates and his wife told
officers the laptop was Bates’s personal computer, and other forensic evidence
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supported that conclusion as well. The laptop contained Bates’s work-related
materials, family pictures, and personal sexually explicit photographs. The laptop
reflected no computer activity attributable to other users.
Bates relies on United States v. Cameron, 699 F.3d 621 (1st Cir. 2012), to
argue that admitting the reports into evidence was not harmless. But unlike
Cameron, the reports here were not “the only evidence that was introduced” to
prove the government’s charges. See id. at 653. Given the amount of untainted
evidence supporting Bates’s guilt, the error in admitting the hearsay reports was
harmless.
B.
Bates also argues that the prosecutor’s references to him as a “big fish,” the
“worst user,” and the “worst offender,” as well as characterizing his entire defense
as a “smokescreen” produced a wrongful conviction by misleading the jury.
Prosecutorial misconduct is established by showing that: (1) the prosecutor’s
remarks were improper; and (2) the improper remarks prejudiced the substantial
rights of the defendant. Merrill, 513 F.3d at 1307 (citation omitted). Prosecutors
must refrain from improper methods or assertions calculated to produce a wrongful
conviction or mislead the jury. United States v. Blakey, 14 F.3d 1557, 1560 (11th
Cir. 1994). A defendant’s substantial rights are prejudiced only when a reasonable
probability arises that the outcome of the trial would have been different without
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the remarks. This means that “where there is sufficient independent evidence of
guilt, any error is harmless.” Merrill, 513 F.3d at 1307 (quotation omitted). While
some of the government’s remarks were improper, they were ultimately harmless
due to the independent evidence of Bates’s guilt.
First, characterizing Bates’s defense as a “smokescreen” was not improper.
There is no prohibition against “colorful and perhaps flamboyant remarks” that
relate to evidence at trial in presenting one side’s argument. United States v.
Bailey, 123 F.3d 1381, 1400 (11th Cir. 1997) (quotation omitted). Also, Bates
brought up the government’s use of the term “smokescreen” in his closing
argument, so the government’s response to this discussion in its own closing
argument was neither surprising nor improper. Because Bates referred to the
comments, the government could respond to Bates’s “invitation” without
committing an act that was calculated to incite the passions of the jury. See Knight
v. Dugger, 863 F.2d 705, 741 (11th Cir. 1988).
Second, although the prosecutor’s other remarks were improper, they did not
prejudice Bates’s Sixth Amendment right to a fair trial. The use of the terms “big
fish,” the “worst user,” and the “worst offender,” was improper both when the
prosecutor and Sgt. Valentine used them. In fact, Bates was clearly not the “worst
offender.” The evidence presented by the government showed that Bates had 110
child pornography files on his computer. As Bates has shown, there are sadly
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many cases where defendants have downloaded many thousands of child
pornography files. See, e.g., United States v. Beasley, 562 F. App’x 745 (11th Cir.
2014) (defendant downloaded and shared over 40,000 files); United States v.
McGarity, 669 F.3d 1218 (11th Cir. 2012) (defendant was part of an international
child pornography ring that shared over 400,000 images and over 1,000 videos in
roughly a one-year span).2 These remarks were not merely “colorful,” but instead
were capable of misleading the jury. 3
Nevertheless, the improper remarks did not violate Bates’s Sixth
Amendment right to a fair trial because his substantial rights were not affected. To
justify reversal, the misconduct must be “so pronounced and persistent that it
permeates the entire atmosphere of the trial.” United States v. Woods, 684 F.3d
1045, 1065 (11th Cir. 2012) (per curiam) (quotation omitted). We judge the
propriety of prosecutorial comments in the context of the entire record. United
States v. Smith, 918 F.2d 1551, 1562 (11th Cir. 1990). The government’s remarks
here were wrong, but they were few and far between. The jury heard these phrases
fewer than ten times altogether, in the context of a four-day trial. The district court
2
The government notes that there are also many cases involving defendants who
downloaded far fewer files. While this may be true, the existence of cases with fewer files does
not elevate Bates to the “worst” user or offender.
3
The government points out that Sgt. Valentine, on cross-examination, provided some
context for these remarks by clarifying that Bates was only the “worst offender” or a “big fish”
relative to other investigatory targets he had at the time based on the ICAC database. But we
note that the clarification only came at the insistence of Bates’s counsel and, despite the
clarification, the government continued to use these improper characterizations in its closing
argument.
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also instructed the jury that statements by the lawyers was not evidence. On this
record (including the substantial untainted evidence), we cannot say that the
misconduct was persistent enough to have permeated the entire atmosphere of the
trial, and find the error harmless. See Merrill, 513 F.3d at 1307.
C.
Finally, Bates asks us to consider whether the cumulative effect of these two
errors warrants vacating his convictions. The cumulative error doctrine “provides
that an aggregation of non-reversible errors,” such as harmless errors, can as a
whole affect whether a defendant received a fundamentally fair trial. Morris v.
Sec’y, Dep’t of Corr., 677 F.3d 1117, 1132 (11th Cir. 2012) (quotation omitted).
But in light of the substantial untainted evidence against Bates we’ve detailed
above, we hold that the combination of these two errors was harmless. See United
States v. Hesser, 800 F.3d 1310, 1329–30 (11th Cir. 2015) (per curiam). As a
result, we affirm.
AFFIRMED.
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