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United States v. Kearn

United States Court of Appeals, Tenth Circuit

July 21, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
JONATHAN KEARN, Defendant-Appellant.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS (D.C. NO. 5:13-CR-40057-DDC-1)

          Daniel T. Hansmeier, Appellate Chief (Melody Brannon, Federal Public Defender, with him on the briefs), Office of the Federal Public Defender, Kansas City, Kansas, for Appellant.

          Christine E. Kenney, Assistant United States Attorney (Thomas E. Beall, United States Attorney, with her on the brief), Office of the United States Attorney, Topeka, Kansas, for Appellee.

          Before TYMKOVICH, Chief Judge, MATHESON and MORITZ, Circuit Judges.

          TYMKOVICH, Chief Judge.

         A jury convicted Jonathan Kearn of federal child pornography charges arising from pictures he took of his four-and-a-half year old daughter and shared on the internet. He was sentenced to a lengthy prison term followed by five years of supervised release.

         Kearn contends the district court committed various errors at trial and sentencing. First, Kearn raises several evidentiary objections. He argues that the government elicited hearsay testimony when it asked a witness about the contents of an inculpatory report written by an expert who did not testify at trial. Even assuming this testimony was hearsay, however, we find no plain error, since admitting it did not affect the outcome of the trial. Kearn also argues that testimony identifying certain images as "child pornography" was inadmissible, because it was not helpful to the jury. The testimony was helpful, however, since whether the images depicted sexually explicit conduct was a fact in issue. The testimony also helped explain steps in the investigation. Finally, Kearn argues that evidence was improperly admitted under Federal Rule of Evidence 404(b), but he fails to direct us to any evidence actually admitted under that rule.

         Second, Kearn argues the jury should have been instructed that they had to agree unanimously on which specific images formed the basis for conviction. In his view, all of the jurors had to agree that at least one specific image violated federal law. But this misstates the case law: unanimity is only required for elements of a crime, not for means of satisfying a given element. Different images satisfying the statutory criteria are merely different means.

         Third, Kearn argues that a supervised-release condition that will prohibit him from contacting his victim-his youngest daughter-was improper, because it was not "reasonably related" to the offense of conviction, and because it interfered with his right of familial association. But he has waived these arguments, which he did not make at sentencing, by failing to argue for plain error.

         Finally, Kearn argues that the cumulative effect of the errors in this case mandates reversal. But we only identify one possible error here, so cumulative error analysis-which addresses whether multiple errors can prejudice a defendant-is unavailing.

         We thus conclude that none of the issues Kearn raises requires reversal.

         I. Background

         Detective Sergeant Stuart Butler, a police investigator in Australia, operated an undercover online persona that purports to trade in child pornography in order to help catch perpetrators. In 2013, "cheyenneandliberty@yahoo.com" began an e-mail exchange with Detective Butler, during which "cheyenneandliberty" sent several images of young girls later identified as Kearn's daughters. In most of the pictures the girls were clothed, but one of the images showed the genitals of Kearn's youngest, four-and-a-half year old daughter. "Cheyenneandliberty" also sent Detective Butler a link to three explicit videos of young girls who were not Kearn's daughters. In these e-mails, "cheyenneandliberty" described himself as a thirty-eight year old from Kansas, and a single father to four daughters: a four-and-a-half year old, two ten-year-old twins, and a thirteen year old. When Detective Butler asked him for a family photo, "cheyenneandliberty" sent him a photograph of Kearn standing with three of his daughters.

         Detective Butler looked at the data embedded in the digital images, which shows when they were taken and the device used to take them. The data showed the explicit images were taken with an iPhone 4s shortly before "cheyenneandliberty" sent the e-mails. This fact indicated to Detective Butler that "cheyenneandliberty" was not merely sending images he found on the internet, but taking the images himself. He therefore referred the exchange to the U.S. Department of Homeland Security.

         Investigators found the IP address used to send some of the images was associated with Kearn's Kansas home address. Kearn's age, family situation, and location matched the description given by "cheyenneandliberty." Investigators executed a search warrant at Kearn's house. Kearn's daughters were present, and the investigating agent, Special Agent Cassidy Casner, recognized the girls from the images sent to Detective Butler. Investigators seized Kearn's iPhone 4s-the same model that had taken the photographs-and footage from his home security system.

         When Agent Casner reviewed the home security footage, it corroborated the e-mails sent to Detective Butler and the embedded data from the images. That is, the footage confirmed that Kearn was using his phone when the e-mails were sent; Kearn was with his daughters when the pictures were taken; and the daughters were wearing the same clothes shown in the pictures on the dates the pictures were taken.

         A grand jury indicted Kearn with (1) permitting his minor child to engage in sexually explicit conduct in violation of 18 U.S.C. § 2251(b); (2) distributing child pornography in violation of 18 U.S.C. § 2252(a)(2); and (3) possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B).

         At trial, in addition to the home security footage and the e-mail exchange with Detective Butler, the government presented the expert testimony of Special Agent Craig Beebe, who specializes in forensic examinations of electronic evidence. Agent Beebe testified that Kearn's iPhone contained explicit images of young girls, evidence of the "cheyenneandliberty" e-mail address, and two videos of Kearn's youngest daughter naked with Kearn's voice in the background. Agent Beebe also found one of the images e-mailed to Detective Butler on the iPhone. On Kearn's computer, Agent Beebe found further evidence of "cheyenneandliberty, " the website through which Detective Butler's undercover persona was contacted, and "ProudPapa, " a nom de plume used in the e-mails with Detective Butler.

         Kearn testified at trial. He admitted he had taken the explicit photo and videos of his youngest daughter. But in his defense, he said she had reported being molested by her mother's boyfriend and he had taken the photos and videos as evidence of the molestation. A sheriff's report indeed showed that Kearn had reported this alleged molestation to the sheriff a year before the e-mail exchange with Butler. Kearn denied any knowledge of the "cheyenneandliberty" account or the explicit images on his phone other than the ones of his youngest daughter. Kearn operated a heating and air conditioning business from his home, and suggested a former employee with access to his iPhone could have downloaded the images and e-mailed them to Detective Butler.

         Kearn also presented evidence from his own computer expert, Andreux Doty. Doty testified he found only an isolated reference to "cheyenneandliberty" in a file created from the iPhone data. He testified he did not find any evidence in government materials he reviewed that the "cheyenneandliberty" e-mails had been sent from Kearn's phone.

         The jury found Kearn guilty on all counts. The district court sentenced Kearn to 292 months in prison followed by five years of supervised release, during which he may not contact minors or the victim of the offense (his youngest daughter).

          II. Analysis

         Kearn raises a number of issues on appeal. He argues various evidence introduced at trial was inadmissible on hearsay or relevancy grounds, and that the admission of the hearsay evidence violated his Confrontation Clause rights. He also contends the court should have instructed the jury to agree unanimously on which specific images were the basis for his conviction. He urges us to find these errors cumulatively mandate relief. And he submits that a supervised-release condition that will prohibit him from contacting his victim-his youngest daughter-was improper.[1]

         Kearn did not raise these issues at trial, so we review them for plain error. "Under the plain error standard, [the appellant] must demonstrate: (1) an error, (2) that is plain, meaning clear or obvious under current law, (3) that affects substantial rights, and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Piper, 839 F.3d 1261, 1265-66 (10th Cir. 2016) (citing United States v. Rosales-Miranda, 755 F.3d 1253, 1257-58 (10th Cir. 2014)). Crucially, "[t]o satisfy the third prong of plain-error review, a defendant generally must demonstrate that an error was 'prejudicial, meaning that there is a reasonable probability that, but for the error claimed, the result of the proceeding would have been different.'" United States v. Bustamante-Conchas, 850 F.3d 1130, 1138 (10th Cir. 2017) (en banc) (quoting United States v. Algarate-Valencia, 550 F.3d 1238, 1242 (10th Cir. 2008)).

         We review each of the issues raised in turn, and find no plain error as to any.

         A. Hearsay Testimony

         Kearn first contends the district court improperly admitted hearsay evidence through his expert witness. At trial, Kearn presented the testimony of computer expert Andreux Doty, who testified he did not find any evidence the "cheyenneandliberty" e-mails were sent from Kearn's phone. On cross-examination, the government asked Doty what documents he had reviewed. As part of this line of inquiry, the government asked about a report prepared by a previously retained defense expert, Tammy Loehrs. Loehrs did not testify at trial. After Doty said he had read the Loehrs Report, the prosecutor asked him if "it would help [his] ...


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