United States v. Bret Humphries ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 21 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10079
Plaintiff-Appellee, D.C. No.
2:14-cr-00279-APG-VCF-1
v.
BRET ALAN HUMPHRIES, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Submitted June 16, 2021**
San Francisco, California
Before: THOMAS, Chief Judge, and BRESS and BUMATAY, Circuit Judges.
Bret Humphries appeals his conviction for “receiv[ing] or distribut[ing]” child
pornography under 18 U.S.C. § 2252A(a)(2). We have jurisdiction under 28 U.S.C.
§ 1291. We affirm.
1. We review “a district court’s admission of evidence for abuse of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
discretion.” United States v. Ramos-Atondo, 732 F.3d 1113, 1121 (9th Cir. 2013).
We also review for abuse of discretion the district court’s decision whether to invoke
judicial estoppel. See United States v. Ruiz, 73 F.3d 949, 953 (9th Cir. 1996). The
district court did not abuse its discretion in declining to apply judicial estoppel when
it admitted evidence of downloads to government computers showing that
Humphries distributed child pornography.
“Judicial estoppel is an equitable doctrine that precludes a party from gaining
an advantage by asserting one position, and then later seeking an advantage by taking
a clearly inconsistent position.” Hamilton v. State Farm Fire & Cas. Co., 270 F.3d
778, 782 (9th Cir. 2001). Three factors “inform the decision whether to apply the
doctrine in a particular case.” New Hampshire v. Maine, 532 U.S. 742, 750 (2001).
“First, a party’s later position must be clearly inconsistent with its earlier position.”
Id. (quotations omitted). Second, the party must have “succeeded in persuading [the]
court to accept that party’s earlier position.” Id. Third, the party seeking to assert
the inconsistent position must “derive an unfair advantage or impose an unfair
detriment on the opposing party if not estopped.” Id. at 751.
Even if Humphries could show that the first two factors were met, he cannot
show the third factor, and thus that the district court abused its discretion in allowing
the disputed evidence. The government did not “derive an unfair advantage” over
Humphries. Id. As the district court recognized, any unfair advantage to Humphries
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consisted of the government seeking to admit evidence at trial that Humphries
thought would be excluded. Because Humphries declined multiple offers for a trial
continuance, he cannot show the government gained an unfair advantage. See
LaMere v. Risley, 827 F.2d 622, 625 (9th Cir. 1987) (failing to ask for continuance
undermines claim of prejudice).
2. Humphries further argues that the district court should have held an
evidentiary hearing before it admitted the law enforcement downloads. We review
this issue for abuse of discretion. See United States v. Cook, 808 F.3d 1195, 1201
(9th Cir. 2015). The district court did not abuse its discretion in declining to hold an
evidentiary hearing. While Humphries maintains that such a hearing was needed
because the district court rejected the recommendation of the magistrate judge, that
is not what happened here. The magistrate judge ruled on the discoverability of the
government software’s source code, and the district court ruled on a different matter:
the admissibility of evidence at trial. Further, Humphries does not otherwise explain
why an evidentiary hearing was needed on the judicial estoppel issue when the
district court reviewed the transcript from the hearing before the magistrate judge.
3. Even if the district court erred in admitting the evidence of downloads,
any error was harmless. “Reversal is not required if there is a fair assurance of
harmlessness or, stated otherwise, unless it is more probable than not that the error
did not materially affect the verdict.” United States v. Lague, 971 F.3d 1032, 1041
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(9th Cir. 2020) (quotations omitted). The government presented overwhelming
evidence that Humphries received child pornography, which was sufficient to
sustain his conviction. See 18 U.S.C. § 2252A(a)(2). Evidence presented at trial
showed that Humphries used a password-protected computer that had images and
videos showing children engaging in sexual acts. The evidence also showed that
Humphries opened and viewed files with file names consistent with child sexual
material. Thus, any error in admitting evidence relating to Humphries’s distribution
of child pornography was harmless.
AFFIRMED.
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