                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 16-1574
                                     _____________

                            UNITED STATES OF AMERICA

                                             v.

                              JOSEPH D. MAURIZIO, JR.,
                                      Appellant
                                   _____________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                           (D.C. Civ. No. 3-14-cr-00023-001)
                        District Judge: Honorable Kim R. Gibson
                                    ______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  January 19, 2017
                                  ______________

              Before: AMBRO, VANASKIE, and SCIRICA, Circuit Judges

                              (Opinion Filed: July 24, 2017)
                                    _____________

                                       OPINION*
                                     _____________




       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
VANASKIE, Circuit Judge

       Joseph Maurizio appeals his conviction for engaging in illicit sexual conduct in

foreign places with a minor, possession of child pornography, and sending checks to

Honduras to promote illicit sexual conduct with a minor. The prosecution arose from

Maurizio’s formation and management of ProNiño Honduras—a drug treatment,

dormitory, and Catholic education center for orphaned boys. On appeal, Maurizio argues

(1) that the weight of the evidence did not support his conviction on counts relating to

illicit sexual conduct with a minor and possession of child pornography; (2) that the

Government withheld material exculpatory evidence with respect to one of the counts of

illicit sexual conduct with a minor; (3) that the weight of the evidence did not support his

conviction on the count of sending checks to promote illicit sexual conduct with a minor;

and (4) that the District Court abused its discretion in admitting unfairly prejudicial

“other acts” evidence. We will affirm the orders of the District Court in all respects.

                                              I.

       Maurizio, a Catholic priest, began traveling in the mid-1990s to Honduras, where

he met an American man, George Mealer, who ran a charity to help poor children. In

1999 the two founded ProNiño Honduras. Maurizio solicited donations from his

parishioners in Pennsylvania and created a charity, Honduras Interfaith Ministries

(“HIM”), to help raise more money. Throughout the 2000s, Maurizio returned to

Honduras every March and October. In 2005, Maurizio began sending Mealer checks

drawn on an HIM account with instructions to cash them for Honduran currency.



                                              2
       Shortly after Maurizio’s March 2009 visit, ProNiño’s donors began to pull funding

based on allegations of financial irregularities, sexual abuse, and drug use. Maurizio

emailed Mealer, warning him that there may be “other stories coming out to discredit

[Maurizio] and [his] mission,” but that he was “not worried about the sex scandal because

people involved should be gone (like Ludie over 18?).” (App. 430.) Maurizio left

Honduras and told Mealer he would not return again. After Maurizio’s departure,

control of ProNiño changed hands and interviews with the boys revealed that Maurizio

had been sexually abusing them and using funds from HIM for his personal use—

including paying the boys he abused.

       A few years later, the U.S. Department of Homeland Security (“DHS”) began an

investigation into Maurizio’s activities. DHS eventually located three of Maurizio’s

victims, Otoniel, Erick, and Ludin, as well as two boys, Luis and Fredis, who had

witnessed instances of abuse. Following interviews with the boys, DHS executed search

warrants at Maurizio’s rectory in Pennsylvania. On the rectory computer were several

photos of nude boys swimming as well as a folder containing two photos of nude boys

posed on a bed. Another folder contained images of Otoniel, Ludin, Erick, and Fredis.

Metadata proved that Maurizio’s camera captured these images and an analysis of his

computer’s registry file verified that his camera had been connected to his computer.1

Bank records and emails also indicated that money that HIM donated to ProNiño had

been provided to Maurizio upon his arrival in Honduras.

       1
        This metadata consisted of data imbedded within the image files which provided
information such as the date the picture was taken, the focal length used, and the make
and model of the camera.
                                             3
       In 2015 a grand jury returned an eight-count indictment. Counts One, Three,

Four, and Five allege that Maurizio knowingly traveled in foreign commerce and

engaged in illicit sexual conduct with a minor in violation of 18 U.SC. § 2343(c). Counts

One and Three addressed conduct involving Otoniel and Erick, respectively. Counts

Four and Five pertained to conduct involving Ludin. Count Two charged Maurizio with

knowingly possessing one or more visual depictions of minors engaging in sexually

explicit conduct in violation of 18 U.S.C. § 2252(a)(4)(B). Counts Six through Eight

each charged Maurizio with knowingly transporting checks to a place outside the United

States with the intent to promote engaging in illicit sexual conduct in foreign places in

violation of 18 U.S.C. § 1956(a)(2)(A). All five boys testified at Maurizio’s trial and

four of the boys stated to the jury that they had either experienced or witnessed

Maurizio’s abuse. Ludin, however, recanted his previous statements and testified that he

had fabricated the story he told investigators.

       The jury convicted Maurizio on Counts One, Two, Three, Four, and Eight, but

acquitted him of Counts Five through Seven. The District Court subsequently granted

Maurizio’s Rule 29 motion for judgment of acquittal with respect to Count Four, but

denied the motion on all other counts. Maurizio then filed a Rule 33 motion for a new

trial arguing (1) that the weight of the evidence was insufficient to sustain the

convictions; (2) that the Government engaged in prosecutorial misconduct; and (3) that

the District Court improperly instructed the jury as to the attempt to engage in illicit

sexual conduct in a foreign place. The District Court denied the motion, and Maurizio

filed a second Rule 33 motion alleging the discovery of material exculpatory evidence

                                              4
that the Government withheld in violation of Brady v. Maryland, 373 U.S. 83 (1963).

Once again, the District Court denied the motion. Maurizio was sentenced to a prison

term of 200 months followed by a life term of supervised release. Maurizio then filed

this timely appeal.

                                              II.

       The District Court had jurisdiction under 18 U.S.C. § 3231, and we have

jurisdiction under 28 U.S.C. § 1291. We review the denial of Rule 33 motions for a new

trial for abuse of discretion. United States v. Johnson, 302 F.3d 139, 150 (3d Cir. 2002).

Where such a motion is based on a Brady claim, which presents questions of both law

and fact, we review conclusions of law de novo and findings of fact for clear error.

United States v. Pelullo, 399 F.3d 197, 202 (3d Cir. 2005). “We exercise plenary review

over a district court's grant or denial of a motion for judgment of acquittal based on the

sufficiency of the evidence, applying the same standard as the district court.” United

States v. Starnes, 583 F.3d 196, 206 (3d Cir. 2009). That standard requires that we

“examine the totality of the evidence, both direct and circumstantial,” and “interpret the

evidence in the light most favorable to the government as the verdict winner.” Id.

(quoting United States v. Miller, 527 F.3d 54, 60, 62 (3d Cir. 2008)). We will “uphold

the jury's verdict if there is substantial evidence from which a rational trier of fact could

find the essential elements of the crime beyond a reasonable doubt.” Id. This is, of

course, a “particularly deferential standard of review.” United States v. Dent, 149 F.3d

180, 187 (3d Cir. 1998). Finally, we review the admission of “other acts” evidence under



                                               5
Federal Rule of Evidence 404(b) for abuse of discretion.” United States v. Ciavarella,

716 F.3d 705, 727 n.12 (3d Cir. 2013).

                                              III.

       Maurizio argues that the District Court (1) erred in denying his Rule 33 motions

for a new trial on Counts One through Three, (2) erred in denying his Rule 29 motion for

acquittal on Count Eight, and (3) improperly admitted “bad acts” evidence that unfairly

prejudiced him at trial. We will address each of the arguments in turn.

       A. Rule 33 Motion for a New Trial

       Maurizio argues that the District Court erred in denying his motion for a new trial

with respect to Counts One through Three. According to Maurizio, a new trial is

warranted because the weight of the evidence does not support his conviction and

because the Government suppressed Brady material.

       “[A] court may vacate any judgment and grant a new trial if the interest of justice

so requires.” Fed. R. Crim. P. 33(a). “Even if a district court believes that the jury

verdict is contrary to the weight of the evidence, it can order a new trial ‘only if it

believes that there is a serious danger that a miscarriage of justice has occurred—that is,

that an innocent person has been convicted.’” United States v. Silveus, 542 F.3d 993,

1004–05 (3d Cir. 2008) (quoting United States v. Johnson, 302 F.3d 139, 150 (3d Cir.

2002)). “Such motions are not favored and should be ‘granted sparingly and only in

exceptional cases.’” Id. at 1005 (quoting Gov’t of Virgin Islands v. Derricks, 810 F.2d

50, 55 (3d Cir.1987)).



                                               6
       In deciding whether the weight of the evidence supports the conviction we look

first to the elements of the charged offenses. United States v. Brennan, 326 F.3d 176,

190 (3d Cir. 2003). Counts One and Three required the Government to prove that

Maurizio (1) is a United States citizen, (2) traveled in foreign commerce, and (3) engaged

in illicit sexual conduct with a minor. 18 U.S.C. § 2423(c). Maurizio stipulated both that

he traveled in foreign commerce during the relevant times and that both Otoniel and

Erick were minors.

       With regard to Count One, Otoniel testified directly to illicit sexual conduct taking

place at the ProNiño church and both Luis and Erick testified to witnessing at least part of

it. With regard to Count Three, both Erick and Luis testified that Maurizio abused Erick

while Erick rode in the front seat of Maurizio’s car. Now Maurizio contends that

discrepancies in the boys’ timeframes undermines their testimony and that the District

Court’s failure to acknowledge the inconsistency constituted a miscarriage of justice.

The Government, however, presented expert testimony stating that victims of sexual

abuse often confuse the times, dates, and duration of their encounters. Given the

testimony provided by the boys and the experts’ explanations for the temporal

discrepancies, the District Court did not abuse its discretion in determining that the

weight of the evidence supported the convictions on Counts One and Three.

       Maurizio also argues that a new trial is necessary for Count Three because the

Government withheld Erick’s Victim Impact Statement (“VIS”), which he claims

contradicts the statements he made at trial. Due process requires the Government to

provide a criminal defendant with exculpatory material that it possesses. Brady v.

                                              7
Maryland, 373 U.S. 83, 87 (1963).2 To establish a Brady violation sufficient to warrant a

new trial, “a defendant must show: (1) evidence was suppressed; (2) the suppressed

evidence was favorable to the defense; and (3) the suppressed evidence was material

either to guilt or to punishment.” United States v. Pelullo, 399 F.3d 197, 209 (3d Cir.

2005). Evidence is material when “there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have been

different.” Kyles v. Whitley, 514 U.S. 419, 434-35 (1995) (quoting United States v.

Bagley, 473 U.S. 667, 682 (1985)). Reasonable probability is “a probability sufficient to

undermine confidence in the outcome.” Strickland v. Washington, 466 U.S. 668, 694

(1984). In determining whether the defendant has established materiality, a court must

evaluate the cumulative effect of the undisclosed evidence. Kyles, 514 U.S. at 436-37.

       Maurizio contends that the Government violated Brady by suppressing Erick’s

VIS, which was taken after Maurizio rested his case but before the jury delivered its

verdict. During the interview, when asked if people treated him “differently since the

crime,” Erick responded, “Yes. Sometimes they think badly about me, perhaps they

think that he really abused (me), but that was not the case.” (App. 1501.) Maurizio

argues that this statement amounts to a recantation of Erick’s trial testimony and thus

should have been disclosed.


       2
          When “reliability of a given witness may well be determinative of guilt or
innocence,” the nondisclosure of evidence affecting credibility, or impeachment
evidence, falls within the scope of Brady. See Giglio v. United States, 405 U.S. 150, 154
(1972) (internal quotations omitted). Accordingly, “[m]aterials that must be disclosed are
those . . . that might affect the jury’s judgment of the credibility of a crucial prosecution
witness.” United States v. Hill, 976 F.2d 132, 134-135 (3d Cir. 1992).
                                             8
       The District Court, although finding that the Government did suppress favorable

evidence, concluded that a new trial was not warranted because the evidence was not

material either to guilt or punishment. The court indicated the substantial independent

evidence supporting the conviction. The court also noted that, during discussions with

Erick after the VIS, DHS Special Agent Carlos E. Gamarra determined that Erick’s

apparent recantation could be attributed to a misunderstanding of the word “abuse,”

which Erick believed only applied to conduct that involved penetration—conduct he

consistently said he had not experienced. Had Maurizio attempted to impeach Erick with

the VIS at trial, the Government could have rehabilitated Erick’s credibility through the

testimony of Gamarra and Victim Assistance Specialist Jackie Block Goldstein, both of

whom filed affidavits asserting that Erick had consistently stated that Maurizio had

touched his penis and offered him money. Considering this evidence, and the confusion

underlying the statement itself, we agree with the District Court that the failure to

disclose the VIS does not “undermine confidence in the verdict.” See Kyles, 514 U.S. at

435.

       Maurizio also argues that the District Court erred in denying his motion for a new

trial with respect to Count Two because the weight of the evidence was insufficient to

support his conviction and because he had provided an affirmative defense. Count Two

required the Government to prove that Maurizio knowingly possessed material that

contained a visual depiction of a minor engaged in sexually explicit conduct.

18 U.S.C. § 2252(a)(4)(B). Maurizio does not dispute that DHS found two such images

on the rectory computer. He argues instead that, since DHS found the images in the

                                              9
“Recycle Bin,” he “promptly and in good faith . . . took reasonable steps to destroy”

them, thus entitling him to an affirmative defense. 18 U.S.C. 2252(c). The District Court

noted, however, that, even had Maurizio placed the items in the “Recycle Bin,” such

evidence would not have warranted a new trial, because “the jury could have concluded

that placing the photographs in the recycling bin was not equivalent ‘to [taking]

reasonable steps to destroy’” them. United States v. Maurizio, No. CR 3:14-23, 2015 WL

7769519, at *11 (W.D. Pa. Dec. 1, 2015) (quoting 18 U.S.C. § 2252(c)(2)(A)). As the

District Court noted, a reasonable jury could have found that a user does not actually

delete files placed in a computer recycle bin as those files could be accessed at any time

until the bin is manually emptied. Id. (citing United States v. Hill, 750 F.3d 982, 987–88

(8th Cir. 2014)). The District Court therefore did not abuse its discretion in denying

Maurizio’s Rule 33 Motion with respect to Count Two.

       B. Rule 29 Motion for Judgment of Acquittal

       Maurizio argues that the District Court erred in denying his Rule 29 motion for

judgment of acquittal as to Count Eight. Rule 29 allows the court to enter a judgment of

acquittal if “the evidence is insufficient to sustain a conviction.” Fed. R. Civ. P. 29. In

considering a Rule 29 motion “a district court must ‘review the record in the light most

favorable to the prosecution to determine whether any rational trier of fact could have

found proof of guilt beyond a reasonable doubt based on the available evidence.’” United

States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005) (quoting United States v. Smith, 294

F.3d 473, 476 (3d Cir.2002). We apply a particularly deferential standard of review to

the denial of Rule 29 motions because the reviewing court “must be ever vigilant . . . not

                                             10
to usurp the role of the jury by weighing credibility and assigning weight to evidence.”

United States v. Mercado, 610 F.3d 841, 845 (3d Cir. 2010) (quoting United States v.

Boria, 592 F.3d 476, 480 (3d Cir. 2010)).

        Count Eight required the Government to establish that (1) Maurizio knowingly

transported, transmitted, or transferred, or caused to be transported, transmitted or

transferred, a monetary instrument or funds from a place in the United States to or

through a place outside of the United States; and (2) Maurizio acted with the intent to

engage in illicit sexual conduct in foreign places. 18 U.S.C. § 1956(a)(2)(A). According

to Maurizio, the Government failed to establish his intent to engage in illicit sexual

conduct in Honduras at the time he sent the check to ProNiño. The Government provided

evidence of a $3,000 check that was to be paid to ProNiño with a memo line indicating

that it was for a March 2009 trip. The Government also provided an email in which

Maurizio stated that he sent the check and that he wanted the cash paid to him in

specified increments upon his arrival. Testimony from an Internal Revenue Service

Criminal Investigator confirmed that the total expenses of Maurizio’s March 2009 trip

was $3,000. Further, several of the boys testified that Maurizio either paid them or

offered to pay them for various sexual acts. Given the evidence provided by the

Government, “a rational trier of fact could [have found] the essential elements of the

crime beyond a reasonable doubt.” United States v. Starnes, 583 F.3d 196, 206 (3d Cir.

2009). The District Court therefore properly denied Maurizio’s motion for judgment of

acquittal on Count Eight.

       C. Other Acts Evidence

                                             11
        Finally, Maurizio argues that the District Court erred in admitting evidence of

prior bad acts. This evidence includes: (1) Fredis’s testimony that, when he was a minor,

Maurizio attempted to take pictures of him naked and bathing; (2) Fredis’s testimony

that, when he was an adult, Maurizio asked to take pictures of him undressing and

masturbating; and (3) testimony regarding Maurizio’s movement of HIM funds during

his travels to Honduras. The District Court found that Fredis’s testimony was admissible

as intrinsic evidence and that all the evidence was admissible under Federal Rule of

Evidence 404(b). The District Court did not abuse its discretion in so finding.

        This Court has recognized categories of “intrinsic evidence” which are admissible

without resorting to a Rule 404(b) analysis. Green, 617 F.3d at 248. In the first category,

“evidence is intrinsic if it ‘directly proves’ the charged offense.” Id. This formulation

comports with Rule 404(b) because evidence of misconduct that “directly proves the

charged offense . . . is not evidence of some ‘other’ crime.” Id. at 249 (citing United

States v. Gibbs, 190 F.3d 188, 219 (3d Cir. 1999)). At a minimum, Fredis’s testimony

regarding the pictures of him bathing as a minor and being offered money by Maurizio in

exchange for being photographed while masturbating could demonstrate that Maurizio

transmitted funds to Honduras with the intent of carrying on an unlawful activity. To the

extent the evidence was outside the time period referenced in the Indictment, as Maurizio

argues, the District Court determined that the evidence would still be admissible “as

background or ‘completes the story’ evidence.” United States v. Maurizio, No. CRIM.

3:14-23, 2015 WL 5177821, at *7 (W.D. Pa. Sept. 4, 2015) (citing Green, 617 F.3d at

249).

                                             12
       The District Court alternatively found all of the evidence admissible under Rule

404(b). Rule 404(b) bars the admission of evidence of a crime or bad acts “to prove a

person’s character in order to show that on a particular occasion the person acted in

accordance with the character.” Fed. R. Evid. 404(b)(1). This evidence may be admitted,

however, to prove “motive, opportunity, intent, preparation, plan knowledge, identity,

absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2).3 The Supreme Court

has established a four-part test to determine the admissibility of evidence under Rule

404(b). See Huddleston v. United States, 485 U.S. 681, 691–92 (1988). The evidence

must “(1) have a proper evidentiary purpose; (2) be relevant; (3) satisfy Rule 403; and (4)

be accompanied by a limiting instruction (where requested) about the purpose for which

the jury may consider it.” United States v. Green, 617 F.3d 233, 249 (3d Cir. 2010).

With regard to the first factor, “[a] proper purpose is one that is ‘probative of a material

issue other than character.’” Id. at 250 (quoting Huddleston, 485 U.S. at 686). Under

Rule 403, relevant evidence may be excluded “if its probative value is substantially

outweighed by a danger of one or more of the following: unfair prejudice, confusing the

issues, misleading the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence.” Fed. R. Evid. 403.



       3
         Maurizio additionally argues that the District Court improperly applied Rule 414
to admit Fredis’s testimony. Rule 414 provides an additional exception to Rule 404(b)’s
prohibition of evidence of prior convictions in cases of child molestation. Fed. R. Evid.
414(a). The District Court, however, did not rely on Rule 414 to admit Fredis’s
testimony. It only relied on Rule 414 to admit the testimony of the boys who witnessed
Maurizio’s illicit sexual conduct with other boys. Fredis’s testimony was admitted under
Rule 404(b)(2).
                                             13
       After conducting an analysis of the Huddleston factors, the District Court found

that the evidence was admissible under Rule 404(b). First, the evidence could be used to

establish motive and knowledge and would supply “helpful background information to

the finder of fact.” Maurizio, 2015 WL 5177821, at *9 (citing Green, 617 F.3d at 250).

Second, the evidence was relevant in that it made it more probable that Maurizio

committed the charged offenses and less likely that the conduct was the result of mistake

or accident. Third, the probative value was significant and it was not substantially

outweighed by the danger of unfair prejudice, especially considering the amount of

testimony regarding Maurizio’s illicit sexual conduct over a period of years. Finally, the

District Court concluded that contemporaneous and final limiting instructions should be

given for testimony regarding Maurizio’s financial transactions. Because the District

Court found Fredis’s testimony to be intrinsic, however, a limiting instruction was not

necessary.4 Maurizio has not demonstrated that the District Court abused its discretion

either in determining Fredis’s testimony to be intrinsic or in admitting all of the proffered

evidence under Rule 404(b).

                                             IV.

       We will affirm the orders of the District Court denying Maurizio’s Rule 29 and

Rule 33 motions.




       4
        Labeling evidence intrinsic “relieve[s] the prosecution of Rule 404(b)’s notice
requirement and the court of its obligation to give an appropriate limiting instruction
upon defense counsel’s request.” Green, 617, F.3d at 248.
                                             14
