United States v. Ion Becker , 666 F. App'x 825 ( 2016 )


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  •            Case: 15-13869    Date Filed: 11/29/2016   Page: 1 of 7
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 15-13869
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 4:14-cr-10022-JLK-1
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    ION BECKER,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    ________________________
    (November 29, 2016)
    Before MARCUS, FAY, and EDMONDSON, Circuit Judges.
    Case: 15-13869     Date Filed: 11/29/2016   Page: 2 of 7
    PER CURIAM:
    Ion Becker appeals his convictions for three counts of receipt of child
    pornography and two counts of possession of child pornography, in violation of 18
    U.S.C. §§ 2252(a)(2) and (a)(4)(B). No reversible error has been shown; we
    affirm.
    I.
    Becker first contends the district court abused its discretion in admitting
    eight images of child pornography, despite Becker’s stipulation that his two laptop
    computers contained child pornography. Becker contends the introduction of this
    evidence was unfairly prejudicial.
    We review for abuse-of-discretion a district court’s evidentiary rulings.
    United States v. Dodds, 
    347 F.3d 893
    , 897 (11th Cir. 2003). A district court “may
    exclude relevant evidence if its probative value is substantially outweighed by a
    danger of . . . unfair prejudice.” Fed. R. Evid. 403. We have said, however, that
    Rule 403 is an “extraordinary remedy which the district court should invoke
    sparingly.” 
    Dodds, 347 F.3d at 897
    (quotations omitted). In considering
    admissibility under Rule 403, we view “the evidence in a light most favorable to its
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    admission, maximizing its probative value and minimizing its undue prejudicial
    impact.” 
    Id. Typically, “the
    prosecution is entitled to prove its case by evidence
    of its own choice,” and “a criminal defendant may not stipulate or admit his way
    out of the full evidentiary force of the case as the Government chooses to present
    it.” Old Chief v. United States, 
    117 S. Ct. 644
    , 653 (1997).
    The district court abused no discretion in admitting the still images of child
    pornography. The images not only proved that Becker’s computers actually
    contained child pornography -- a fact to which Becker had stipulated -- but also
    tended to show that Becker knew he was in possession of child pornography and to
    show his intent to possess child pornography. See United States v. Alfaro-
    Moncada, 
    607 F.3d 720
    , 734 (11th Cir. 2010) (although defendant stipulated that
    the DVDs contained child pornography, still images from the DVDs “also tended
    to show that [defendant] knew he was in possession of child pornography, a fact
    that he did not stipulate”); 
    Dodds, 347 F.3d at 899
    (admission of 66 child
    pornographic images was no abuse of discretion in part because the images tended
    to show defendant’s knowledge that the images constituted child pornography and
    that defendant intended to collect such pornography).
    The district court also took proper precautions to minimize unfair prejudice
    by admitting only a small portion of the hundreds of images discovered, cautioning
    jurors during voir dire that child-pornographic images might be offered into
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    evidence, striking jurors who indicated they could not be fair and impartial or who
    had religious objections, and by making viewing of the images optional to the
    jurors. See 
    Alfaro-Moncada, 607 F.3d at 734
    ; 
    Dodds, 347 F.3d at 899
    . Because
    we cannot say that the risk of unfair prejudice outweighed the images’ probative
    value, the district court abused no discretion in denying Becker’s motion in limine.
    II.
    Becker next challenges the sufficiency of the evidence presented at trial.
    “We review de novo the sufficiency of the evidence to support a conviction,
    viewing all the evidence in the light most favorable to the government and drawing
    all reasonable inferences and credibility choices in favor of the jury’s verdict.”
    United States v. Grzybowicz, 
    747 F.3d 1296
    , 1304 (11th Cir. 2014) (quotations
    omitted). “A jury’s verdict cannot be overturned if any reasonable construction of
    the evidence would have allowed the jury to find the defendant guilty beyond a
    reasonable doubt.” 
    Id. (quotations omitted).
    To obtain a conviction for receipt of child pornography, the government
    must prove, among other things, that the defendant “knowingly receive[d]” child
    pornography through means affecting interstate commerce, “including by
    computer.” 18 U.S.C. § 2252(a)(2). A person “knowingly” receives child
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    pornography “when he intentionally views, acquires, or accepts child pornography
    on a computer from an outside source.” United States v. Pruitt, 
    638 F.3d 763
    , 766
    (11th Cir. 2011). Likewise, to prove a defendant “knowingly possesse[d]” child
    pornography -- for purposes of obtaining a conviction under 18 U.S.C. §
    2252(a)(4)(B) -- the government must prove that the defendant knew the files
    contained an unlawful visual depiction of minors engaging in sexually explicit
    conduct. 
    Alfaro-Moncada, 607 F.3d at 733
    . “[T]he term ‘knowingly’ means that
    the act was performed voluntarily and intentionally, and not because of a mistake
    or accident.” United States v. Woodruff, 
    296 F.3d 1041
    , 1047 (11th Cir. 2002).
    Proof of an element of a crime “may be established through circumstantial
    evidence or from inferences drawn from the conduct of an individual.” United
    States v. Utter, 
    97 F.3d 509
    , 512 (11th Cir. 1996). For example, “[e]vidence that a
    person has sought out -- searched for -- child pornography on the internet and has a
    computer containing child-pornography images . . . can count as circumstantial
    evidence that a person has ‘knowingly receive[d]’ child pornography.” 
    Pruitt, 638 F.3d at 766
    .
    As an initial matter, Becker disputes only whether it was he -- and not
    another person -- who knowingly received and possessed the child pornography
    found on his two laptop computers. That Becker’s computers contained child
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    pornography and that the pornography was received through interstate commerce
    is undisputed.
    Evidence presented at trial showed that Becker -- who had a college degree
    in computer arts -- owned and used extensively the two laptop computers found at
    his home. This evidence tended to show Becker’s control over the computers
    where the child pornography was found. On both computers, Becker had
    downloaded, installed, and run ARES: a file-sharing program used commonly to
    search for and to download child pornography. In the ARES files and logs,
    officers found evidence that over 1,000 titles indicative of child pornography had
    been downloaded and also found search terms associated with child pornography.
    The government presented evidence of a large volume of pornographic videos and
    pictures that were stored and accessed regularly on Becker’s laptops. On one
    computer, these images -- which were titled using explicit terms often used to
    identify child pornography files -- were saved in a folder on the desktop labeled
    with Becker’s first name: “Ion.” One of Becker’s laptops also contained a log of
    Becker’s Skype chat during which Becker commented that his new computer had a
    really good video card and that the “Porn is sharp. And clear.” On this record, the
    government presented sufficient circumstantial evidence to allow the jury to infer
    that Becker received and possessed knowingly child pornography.
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    Although Becker presented some evidence that he allowed his friends to use
    his computers, nothing evidenced that these friends accessed Becker’s computers
    with anywhere near the frequency with which the computers were being used to
    search for, download, and to view child pornography. Moreover, the “jury is free
    to choose among reasonable constructions of the evidence”: the evidence need not
    “exclude every reasonable hypothesis of innocence” to support a finding of guilt
    beyond a reasonable doubt. United States v. Cruz-Valdez, 
    773 F.2d 1541
    , 1545
    (11th Cir. 1985) (en banc); see also United States v. Jiminez, 
    564 F.3d 1280
    , 1285
    (11th Cir. 2009) (“the issue is not whether a jury reasonably could have acquitted
    but whether it reasonably could have found guilt beyond a reasonable doubt”).
    The jury was also entitled to disbelieve Becker’s testimony -- in which Becker
    asserted his innocence and questioned the veracity of his own witnesses’ testimony
    about the frequency with which they accessed Becker’s computers -- and to use
    Becker’s testimony as substantive evidence of his guilt. See United States v.
    Williamson, 
    339 F.3d 1295
    , 1301 n.14 (11th Cir. 2003). “[W]e are bound by the
    jury’s credibility determinations, and by its rejection of the inferences raised by the
    defendant.” United States v. Peters, 
    403 F.3d 1263
    , 1268 (11th Cir. 2005).
    The record contains sufficient evidence from which a reasonable fact-finder
    could have found Becker guilty beyond a reasonable doubt.
    AFFIRMED.
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