                                     UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 18-4629


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

              v.

CARL JACK HALL,

                     Defendant - Appellant.



Appeal from the United States District Court for the Western District of North Carolina, at
Asheville. Martin K. Reidinger, District Judge. (1:16-cr-00147-MR-DLH-1)


Submitted: August 12, 2019                                        Decided: August 29, 2019


Before NIEMEYER, AGEE, and RICHARDSON, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Eric J. Foster, Asheville, North Carolina, for Appellant. R. Andrew Murray, United States
Attorney, Charlotte, North Carolina, Amy E. Ray, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Carl Jack Hall appeals the denial of his Fed. R. Crim. P. 29 motion for a judgment

of acquittal, his convictions for receiving and attempting to receive child pornography, in

violation of 18 U.S.C. § 2252A(a)(2)(A) (2012), and possession of child pornography, in

violation of 18 U.S.C. § 2252A(a)(5)(B) (2012), and his resulting 108-month sentence. On

appeal, Hall challenges the sufficiency of the evidence supporting his convictions, contests

the propriety of one of the district court’s jury instructions, and argues that, at sentencing,

the district court deprived him of the effective assistance of counsel. For the reasons that

follow, we affirm.

       “We review de novo a district court’s denial of a Rule 29 motion.” United States v.

Burfoot, 899 F.3d 326, 334 (4th Cir. 2018). “We must sustain a guilty verdict if, viewing

the evidence in the light most favorable to the prosecution, the verdict is supported by

substantial evidence.” Id. “Substantial evidence is that which a reasonable finder of fact

could accept as adequate and sufficient to support a conclusion of a defendant’s guilt

beyond a reasonable doubt.” Id. (internal quotation marks omitted). “Reversal for

insufficient evidence is reserved for the rare case where the prosecution’s failure is clear.”

United States v. Wolf, 860 F.3d 175, 194 (4th Cir. 2017) (internal quotation marks omitted).

       Hall concedes that the Government adduced sufficient evidence to prove that his

laptop computer was used to receive and possess child pornography; however, Hall claims

that he was not the person responsible for that illegal content, emphasizing that his friends

and others frequently borrowed his laptop. However, the jury heard testimony that Hall

secured his computer with a password and fingerprint scanner, such that nobody could

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unlock the laptop without Hall’s assistance, and that Hall always remained present when

he allowed others to use his computer.        Thus, there was ample evidence that Hall

maintained control over his laptop. In addition, one of Hall’s acquaintances claimed that

she saw Hall watching a video showing an adult man shaving an underage girl’s pubic area,

and one of Hall’s roommates testified that he witnessed Hall watching a video of young

girls having sex. From this evidence, a reasonable jury could conclude that Hall, and not

some other person, sought out and obtained the illicit materials found on his computer.

Consequently, we affirm the district court’s denial of Hall’s Rule 29 motion. 1

       Because Hall did not object to the district court’s jury instruction, we review only

for plain error. United States v. Alvarado, 816 F.3d 242, 248 (4th Cir. 2016). A jury

instruction is not erroneous if, “in light of the whole record, [it] adequately informed the

jury of the controlling legal principles without misleading or confusing the jury to the

prejudice of the objecting party.” United States v. Miltier, 882 F.3d 81, 89 (4th Cir.)

(internal quotation marks omitted), cert. denied, 139 S. Ct. 130 (2018). “Even if a jury was

erroneously instructed, however, we will not set aside a resulting verdict unless the




       1
        Contrary to Hall’s argument, this case is vastly different from United States v.
Lowe, 795 F.3d 519, 520 (6th Cir. 2015), a “multiple-user” case in which the Sixth Circuit
reversed the defendant’s conviction for downloading child pornography onto the laptop he
shared with his wife and a minor relative. In finding the evidence insufficient, the court in
Lowe emphasized that neither the laptop nor the computer program used to download child
pornography was password protected. Id. at 521, 523-24. By contrast, here, not only did
Hall lock his computer, but also Hall’s friends saw him watching pornographic videos
involving children.

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erroneous instruction seriously prejudiced the challenging party’s case.” Id. (internal

quotation marks omitted).

       Hall primarily takes issue with the district court’s instruction that “[a]n individual’s

browsing history which shows repeated accessing of child pornography websites is deemed

evidence of possession.” (J.A. 643). 2 This instruction, however, was a fair statement of

the law. See Miltier, 882 F.3d at 87 (concluding that computer search history evidence

supported convictions for receiving and possessing child pornography); United States v.

Ramos, 685 F.3d 120, 132 (2d Cir. 2012) (same). 3 In addition, we discern no support for

Hall’s contention that the challenged sentence, when read in context, collapsed the

distinction between joint possession of the computer and joint possession of illegal images

thereon. Thus, we conclude that the court did not err, let alone plainly err, in instructing

the jury on this point.

       Finally, Hall argues that the district court violated his Sixth Amendment right to

counsel by rejecting his request to order trial transcripts so that his sentencing counsel—

who, appointed months after the jury convicted Hall, had not attended the trial—could

adequately prepare for sentencing. “[S]entencing is a critical stage of trial at which a

defendant is entitled to effective assistance of counsel, and a sentence imposed without


       2
           “J.A.” refers to the joint appendix filed by the parties in this appeal.
       3
         To the extent Hall suggests that “is deemed” meant “conclusively establishes,” we
decline to read the instruction this way. See United States v. Kain, 589 F.3d 945, 950 (8th
Cir. 2009) (“The presence of child pornography in temporary internet and orphan files on
a computer’s hard drive is evidence of prior possession of that pornography, though of
course it is not conclusive evidence of knowing possession and control of the images.”).

                                                 4
effective assistance must be vacated and reimposed to permit facts in mitigation of

punishment to be fully and freely developed.” United States v. Breckenridge, 93 F.3d 132,

135 (4th Cir. 1996). Under the familiar Strickland 4 standard, a defendant alleging a Sixth

Amendment violation must demonstrate both deficient performance from counsel and

resulting prejudice. United States v. Morris, 917 F.3d 818, 823 (4th Cir. 2019). However,

under Strickland’s companion case, United States v. Cronic, 466 U.S. 648, 659-61 (1984),

prejudice is presumed if the defendant can show (1) a complete denial of counsel, (2) a

constructive denial of counsel, or (3) that “the [circumstances surrounding the case] made

it so unlikely that any lawyer could provide effective assistance,” id. at 661.

       Hall makes no attempt to show actual prejudice; rather, he places his case in the

third Cronic category, arguing that the district court presumptively prejudiced his

sentencing hearing by denying counsel access to the trial transcripts. “[U]nder the third

scenario, . . . the presumption of prejudice applies only in limited, egregious circumstances,

not simply because counsel was belatedly appointed and the court refused to grant

additional time to prepare.” United States v. Coleman, 835 F.3d 606, 612 (6th Cir. 2016)

(internal quotation marks omitted). For example, in Cronic, the Supreme Court refused to

apply the per se prejudice rule where “a young real-estate lawyer . . . was allowed only 25

days of pretrial preparation in a complex mail fraud case.” Glover v. Miro, 262 F.3d 268,

277 (4th Cir. 2001) (citing Cronic, 466 U.S. at 649). The situation here was far less

troubling, as counsel had nearly five months to prepare for a sentencing hearing, not 25


       4
           Strickland v. Washington, 466 U.S. 668 (1984).

                                              5
days for a complex trial, and there is no indication that the issues were particularly

complicated. Thus, absent actual prejudice, which Hall has not established, his Sixth

Amendment claim must fail.

      Accordingly, we affirm the judgment of the district court. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials

before this court and argument would not aid the decisional process.

                                                                             AFFIRMED




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