16-130-cr
United States v. Hester
16-130-cr
United States v. Hester

                                 UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 22nd day of December, two thousand sixteen.

PRESENT:             GUIDO CALABRESI,
                     JOSÉ A. CABRANES,
                     RAYMOND J. LOHIER, JR.,
                                  Circuit Judges.


UNITED STATES OF AMERICA,

                            Appellee,                      16-130-cr

                            v.

RICKY PATRICK HESTER,

                            Defendant-Appellant,


FOR APPELLEE:                                           LAUREN B. SCHORR, Assistant United
                                                        States Attorney (Brian R. Blais, Assistant
                                                        United States Attorney, on the brief), for
                                                        Preet Bharara, United States Attorney for
                                                        the Southern District of New York, New
                                                        York, NY.

FOR DEFENDANT-APPELLANT:                                PATRICK A. MULLIN, Law Offices of
                                                        Patrick A. Mullin, Fort Lee, NJ.



                                                    1
16-130-cr
United States v. Hester
       Appeal from an order of the United States District Court for the Southern District of New
York (Vincent L. Briccetti, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is
AFFIRMED.

         Defendant-appellant Ricky Patrick Hester appeals from a judgment of conviction entered
on January 6, 2016, after a jury found him guilty of receiving and distributing child pornography, in
violation of 18 U.S.C. §§ 2252A(a)(2)(B) and (b)(1), and possessing child pornography, in violation
of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2). The District Court sentenced Hester to 97 months’
imprisonment.

         On appeal, Hester argues that we should overturn his conviction because: (1) the District
Court erred in permitting the government to produce excerpts from child pornography videos to the
jury; (2) his conviction for receiving and distributing child pornography violated the Double
Jeopardy Clause of the Fifth Amendment; (3) the District Court committed plain error in failing to
give the jury a lesser-included offense instruction; (4) the government violated its duty under Brady v.
Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150, 154 (1972); (5) the District
Court erred in denying the admission of polygraph evidence; (6) the District Court erred in denying
Hester’s motion to suppress his confession; (7) participation of United States Army Criminal
Investigation Command (“Army CID”) agents in the search of Hester’s dormitory room violated the
Posse Comitatus Act, 18 U.S.C. § 1385; and (8) the District Court erred in denying Hester’s motion
for acquittal. We assume the parties’ familiarity with the underlying facts and the procedural history
of the case.

        1. The District Court Did Not Err in Permitting the Government to Produce Videos
           Containing Child Pornography to the Jury.

        Hester argues that the District Court erred in permitting the Government to show the jury
two videos containing images of child pornography because the probative value of such evidence
was substantially outweighed by the risk of unfair prejudice. See Federal Rule of Evidence 403. We
disagree.

         To establish that Hester committed the charged offenses, the government had to prove that
the videos at issue “contain[ed] an image of child pornography.” 18 U.S.C. §§ 2252A (a)(2)(B) and
(a)(5)(B). The government has the “right to present evidence . . . to establish the ‘human
significance’ of the fact and ‘to implicate the law's moral underpinnings.’” United States v. Polouizzi,
564 F.3d 142, 153 (2d Cir. 2009) (quoting Old Chief v. United States, 519 U.S. 172, 187–88 (1997)). In
other cases involving similar crimes, we have held that the admission of images of child
pornography was not an abuse of discretion. See, e.g., id. at 152–53. The videos here do not compel a
different ruling. Moreover, the government minimized the risk of unfair prejudice by selecting only
                                                   2
16-130-cr
United States v. Hester
two videos (in addition to two still images) out of the more than one thousand files allegedly
containing child pornography and by playing each video for only ten seconds.

        2. Hester Has Waived His Double Jeopardy Claim.

          Hester contends that his two convictions, for receiving and distributing child pornography
and for possessing child pornography, violated the Double Jeopardy Clause because possession of
child pornography is a lesser-included offense of receiving child pornography and because the jury
might have convicted him of both crimes based on the same images. See, e.g., United States v.
Muhlenbruch, 634 F.3d 987, 1004 (8th Cir. 2011) (finding a violation of the Double Jeopardy Clause
where defendant’s convictions for both possession and receipt of child pornography were based on
the same conduct). Assuming arguendo that the possession of child pornography is a lesser-included
offense of receiving and distributing it, we hold that Hester waived his Double Jeopardy claim by
failing to request an instruction that directed the jury to base its receiving-and-distributing
conviction on different images or videos than its possession conviction. See United States v. Anson,
304 Fed. App’x 1, 5–6 (2d Cir. 2008); see also United States v. Roman, 870 F.2d 65, 72 (2d Cir. 1989)
(holding that “[w]here the defendant believes that certain alternative bases on which the jury might
rely are impermissible because of an insufficiency of evidence, he ‘must request the trial judge not to
submit the invalid basis to the jury or else the objection will be deemed waived’” (quoting United
States v. Washington, 861 F.2d 350, 352 (2d Cir. 1988))).

        3. The District Court Did Not Commit Plain Error By Failing to Give a Lesser-
           Included Offense Instruction.

        Hester argues that the District Court erred in failing to instruct the jury that possession of
child pornography is a lesser-included offense of receiving and distributing child pornography.
Because Hester did not request that instruction from the District Court, we review his claim for
plain error.1 We conclude that there was no error, much less plain error.

         Under federal law, “a defendant is entitled to a lesser-included offense instruction . . . only if
(1) the elements of the lesser offense are a subset of the elements of the charged offense . . . and (2)
the evidence at trial permits a rational jury to find the defendant guilty of the lesser offense and
acquit him of the greater.” United States v. Diaz, 176 F.3d 52, 101 (2d Cir. 1999) (internal citations
omitted). Assuming again that the possession of child pornography is a lesser-included offense of


    1
     Under a plain error review, a defendant must “demonstrate that (1) there was error, (2) the
error was plain, (3) the error prejudicially affected his substantial rights, and (4) the error seriously
affected the fairness, integrity or public reputation of judicial proceedings.” United States v. Cook, 722
F.3d 477, 481 (2d Cir. 2013).




                                                     3
16-130-cr
United States v. Hester
receiving and distributing it, Hester was not entitled to the instruction because no rational jury could
have convicted him of possessing child pornography and acquitted him of receiving and distributing
child pornography. Specifically, the government presented evidence that included: (1) nearly 100
emails from Hester’s email account in which he sent and received child pornography; (2) files from
Hester’s Dropbox account where he shared child pornography with others; and (3) Hester’s
confession admitting to sending and receiving child pornography.

        4. The Government Did Not Violate Brady or Giglio.

        Under the Supreme Court’s decisions in Brady and Giglio, the government is required to
disclose all evidence that a defendant could use to impeach the credibility of a government witness.
United States v. Coppa, 267 F.3d 132, 135 (2d Cir. 2001). Hester contends that the government
violated that duty by failing to disclose that Homeland Security Investigations (“HSI”) Special Agent
Steven Cerutti had participated in a search that a district court in United States v. Bershchansky, 958 F.
Supp. 2d 354 (E.D.N.Y. 2013), had found to be unreasonable. We disagree.

        In affirming the District Court’s decision in Bershchansky, this Court concluded that the
search in which Special Agent Cerutti participated was unreasonable because “the agents could not
have reasonably concluded that [the target] actually lived in Apartment 1 and that they were
authorized to search Apartment 1” when the warrant clearly specified Apartment 2. United States v.
Bershchansky, 788 F.3d 102, 112 (2d Cir. 2015). Neither court found that Special Agent Cerutti lied in
his suppression hearing testimony or in the warrant affidavit, which a different agent drafted. Id. at
106. Because the incident in Bershchansky does not reflect on Special Agent Cerutti’s character for
truthfulness or indicate any bias against Hester, it was not impeachment evidence, see United States v.
Schwab, 886 F.2d 509, 511 (2d Cir. 1989), and thus was not Giglio material.

        5. The District Court Did Not Err in Denying The Admission of Polygraph
           Evidence.

       Hester argues that the District Court erred in denying his motion to admit polygraph
evidence in the form of an expert opinion. We disagree.

         In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993), the Supreme Court
held that Federal Rule of Evidence 702, “assign[ed] to the trial judge the task of ensuring that an
expert's testimony both rests on a reliable foundation and is relevant to the task at hand.” The
District Court concluded that the polygraph evidence at issue in this case did not “have the hallmark
of reliability.” A. 92. While we have never held that polygraph evidence is per se inadmissible, we
have upheld its exclusion on grounds that it may be unreliable, unfairly prejudicial, or misleading to
the jury. See United States v. Kwong, 69 F.3d 663, 668 (2d Cir. 1995); United States v. Rea, 958 F.2d 1206,
1224 (2d Cir. 1992). No factors presented here convince us that Hester’s test was “sufficiently
reliable or sufficiently relevant to warrant admission.” Rea, 958 F.2d at 1224.


                                                     4
16-130-cr
United States v. Hester
        6. The District Court Did Not Err in Denying Hester’s Motion to Suppress His
           Confession.

        The District Court denied Hester’s motion to suppress the confession he gave to HSI
Agents McManus and Appelbaum without the benefit of a Miranda warning, see Miranda v. Arizona,
384 U.S. 436 (1966), on grounds that Hester was not in custody during questioning and that Hester
gave his statements voluntarily. We agree.

         A defendant is in custody for purposes of Miranda “when a reasonable person in the
defendant's position would have understood himself to be subjected to restraints comparable to
those associated with a formal arrest.” United States v. Ruggles, 70 F.3d 262, 265 (2d Cir. 1995)
(internal quotation marks and citation omitted). The District Court held an evidentiary hearing on
Hester’s motion and found that Agents McManus and Appelbaum “credibly testified that the
interview was not confrontational; defendant was not threatened, coerced, physically restrained, or
denied access to an attorney during the interview; and defendant was not told there would be
negative consequences if he refused to speak with [the agents].” A. 46. The District Court also
concluded that “Agent McManus [ ] credibly testified [that] she told defendant he would be able to
take a final exam later that day.” Id. Based on those findings of fact, which we have no cause to
disturb, we agree that no reasonable person would have considered himself or herself not free to
leave, see United States v. Mitchell, 966 F.2d 92, 98 (2d Cir. 1992), or would have felt his or her will
“overb[orne],” see United States v. Kaba, 999 F.2d 47, 51 (2d Cir. 1993).

        7. Hester Waived His Suppression Claim Premised on a Violation of the Posse
           Comitatus Act.

        Hester argues, for the first time on appeal, that the District Court erred in admitting
evidence obtained during the search of his dorm room because the participation of Army CID
agents violated the Posse Comitatus Act. He has waived this claim.

          Federal Rule of Criminal Procedure 12(b)(3) requires parties to raise motions to suppress
before trial. If a party does not meet that deadline, “the motion is untimely. But a court may
consider the defense, objection, or request if the party shows good cause.” Rule 12(c)(3); see United
States v. Yousef, 327 F.3d 56, 124–25 (2d Cir. 2003). “A strategic decision by counsel not to pursue a
claim, inadvertence of one's attorney, and an attorney's failure to timely consult with his client” do
not constitute good cause. Id. at 125. While Hester did raise a motion to suppress prior to trial, he
did not specifically address the Posse Comitatus Act. Because Hester fails to provide this Court with
good cause why he failed to raise these grounds before trial, there has been a complete waiver of his
claim.




                                                    5
16-130-cr
United States v. Hester
        8. The District Court Properly Denied Hester’s Motion for Acquittal.

        In challenging the sufficiency of the evidence, defendants “bear[ ] a heavy burden,” as our
“standard of review is exceedingly deferential.” United States v. Coplan, 703 F.3d 46, 62 (2d Cir. 2012)
(internal quotation marks omitted). We examine a defendant’s challenge to the sufficiency of the
evidence de novo and “affirm if the evidence, when viewed in its totality and in the light most
favorable to the government, would permit any rational jury to find the essential elements of the
crime beyond a reasonable doubt.” United States v. Yannotti, 541 F.3d 112, 120 (2d Cir. 2008).

        Hester asserts that the government introduced insufficient evidence for a jury to conclude
that he, rather than his roommate, possessed, received, and distributed child pornography and that
he possessed the requisite technical expertise to commit the crimes alleged. We disagree. First,
viewing the evidence as a whole, we conclude that a rational jury could find that Hester, and not his
roommate, knowingly possessed, received, and distributed child pornography. The government
presented evidence from which a reasonable jury could infer that Hester controlled the email
account, cell phone, and Dropbox account where child pornography files were stored, sent, and
received. Second, we agree with the District Court that no special technological knowledge is needed
to use an email account, cell phone, or Dropbox account.

                                           CONCLUSION

        We have considered all of the arguments raised by defendant-appellant on appeal and find
them to be without merit. For the foregoing reasons, we AFFIRM the January 6, 2016 judgment of
the District Court.

                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk




                                                   6
