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United States v. Meisel

United States Court of Appeals, Tenth Circuit

November 14, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
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.

         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 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 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.

         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 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 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., 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 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 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 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 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 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 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 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 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 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 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 "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.

         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 ...


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