                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-4579


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

DEREK F. GAVEGNANO,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville.    Norman K. Moon,
District Judge. (3:05-cr-00017-nkm)


Submitted:    October 28, 2008              Decided:   January 16, 2009


Before MOTZ, TRAXLER, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael T. Hemenway, THE LAW OFFICES OF MICHAEL T. HEMENWAY,
Charlottesville, Virginia, for Appellant.      Julia C. Dudley,
Acting United States Attorney, Jean B. Hudson, Assistant United
States Attorney, Charlottesville, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Derek       F.    Gavegnano      appeals            his    conviction       on      two

counts    of     receipt         of    child   pornography,              in    violation      of    18

U.S.C. §§ 2252(a)(2), 3261(a) (2006); one count of possession of

child    pornography,            in    violation        of     18    U.S.C.         §§ 2252(a)(4),

3261(a) (2006); and one count of importation or transportation

of obscene matters, in violation of 18 U.S.C. §§ 1462, 3261(a)

(2006).         We have reviewed the record and find no reversible

error.

               Gavegnano         first      claims      the    district          court    erred     in

denying his motion to suppress based on violation of his Fourth

and     Fifth       Amendment         rights    when         evidence         against     him      was

obtained       from    a    government-issued                laptop.           We    review     legal

conclusions underlying the denial of a motion to suppress de

novo,    and     review         factual     findings         for    clear        error.       United

States v. Moreland, 437 F.3d 424, 433 (4th Cir. 2006).                                             The

evidence       is     construed        in    the       light       most       favorable    to      the

Government.          United States v. Seidman, 156 F.3d 542, 547 (4th

Cir. 1998).

               To     establish        a    violation         of     his       Fourth     Amendment

rights,    Gavegnano            must    establish        that       he     had      a   “legitimate

expectation of privacy” in the computer searched.                                   United States

v. Simons, 206 F.3d 392, 398 (4th Cir. 2000) (citing Rakas v.

Illinois, 439 U.S. 128, 143 (1978)).                                To prove a legitimate

                                                   2
expectation of privacy, Gavegnano must show that his subjective

expectation of privacy is one that society is prepared to accept

as objectively reasonable.             Simons, 206 F.3d at 398.                 As the

district court properly held, this he did not do.

            It is uncontroverted that when Gavegnano was issued a

government computer, the user agreement he signed stated that he

was   aware    of     the    acceptable       use   of    all     government-issued

information systems, that he consented to the monitoring of the

information       systems,     and    included      the     statement          that     he

understood that monitoring was not selective and would include

all activities on the information system.                       Moreover, the user

agreement     form    Gavegnano      signed    applied     to     his    use    of     all

computer systems owned by the governmental agency for which he

worked, which included the laptop he used in Qatar, on which the

pornographic images were found.               On these facts, and construing

the evidence in favor of the Government, see Seidman, 156 F.3d

at 547, we find no clear error by the district court in its

determination that Gavegnano had no reasonable expectation of

privacy in the unauthorized use of his government-issued laptop

computer such that his Fourth Amendment rights were violated.

            Gavegnano’s Fifth Amendment claim, based on the fact

that, after invoking his right to consult with an attorney, he

was asked for, and revealed, the password to the computer, also

fails.      Any      self-incriminating        testimony        that    he   may      have

                                          3
provided   by   revealing      the    password        was   already       a    “foregone

conclusion”     because     the   Government       independently          proved     that

Gavegnano was the sole user and possessor of the computer.                             See

United   States    v.    Stone,     976   F.2d   909,       911    (4th       Cir.   1992)

(quoting Fisher v. United States, 425 U.S. 391, 411 (1976)).

            Next, Gavegnano challenges the district court’s taking

of judicial notice of the court’s jurisdiction insofar as its

failure to instruct the jury that it was not required to accept

as conclusive any fact judicially noticed, as required by Fed.

R. Evid. 201(g).         Specifically, he takes issue with the district

court’s judicial notice that Gavegnano was charged with crimes

punishable by over a year in prison.

            Rule 201(a) limits the scope of Rule 201 to judicial

notice of adjudicative, not legislative, facts.                           See Fed. R.

Evid. 201(a) advisory committee notes.                 Here, the fact of which

the district court took judicial notice, i.e., the penalty for

the crimes with which Gavegnano was charged, is fixed, does not

change from case to case, and applies to all cases in which

those crimes were charged.            Hence, it is a legislative, not an

adjudicative fact.         See, e.g., United States v. Williams, 442

F.3d 1259, 1261 (10th Cir. 2006) (citations omitted) (“statutes

are   considered    legislative       facts”     of    which      the    authority     of

courts     to     take     judicial       notice       is      “unquestionable.”).

Accordingly,      the    district    court     was    under       no    obligation     to

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follow the jury instruction requirement set out in Rule 201(g),

and it committed no reversible error in its failure to instruct

the jury pursuant to Rule 201(g).

               In    a   related     claim,           Gavegnano   also       challenges     the

district court’s taking of judicial notice of the element that

the crimes with which he was charged were punishable by more

than one year in prison if committed in the United States, an

element    required          under   18   U.S.C.            § 3261,    claiming    that     the

court’s action precluded him from requiring that the Government

prove     each       element    of     the        charges      against       him   beyond    a

reasonable       doubt.        He    supports         his    argument    by    reference     to

Virginia       state     law   statutes       regarding         obscene       material    that

carry sentences of less than a year.                          He also asserts that one

of the charges carried a penalty of “zero to five” years.                                   His

argument is without merit.

               First, as discussed above, the district court properly

may     take     judicial       notice       of       legislative       facts,     and    such

legislative facts include the interpretation of statutes.                                 Fed.

R.    Evid.         201(a)     advisory       comm.          notes.          Moreover,      the

requirements of Rule 201(b) state that a “judicially noticed

fact must be one that is either (1) generally known within the

territorial jurisdiction of the trial court, or (2) capable of

accurate       and    ready    determination            by    resort    to    sources    whose

accuracy cannot reasonably be questioned.”                            Here, the length of

                                                  5
punishment         is   determined       simply   by    reading      the   text   of   the

statutes violated, each of which provide that violation of the

statute is punishable by more than one year in prison. *

                  Second, Gavegnano’s reliance on the fact that certain

Virginia state statutes provide for punishment of less than a

year       for    the   receipt    and    possession     of    obscene      material    is

misplaced, as Gavegnano was not charged under Virginia law, but

rather under federal statutes for offenses that took place in

Qatar.           As it is undisputed that, on their face, the federal

statutes under which Gavegnano was charged carried sentences of

more than one year, the length of the relevant penalties cannot

reasonably         be   questioned.        Hence,      the   fact    of    that   penalty

properly was found by judicial notice.

                  Likewise without merit is Gavegnano’s contention that

judicial         notice   was     not    proper   because      one    of   the    charges

carried a penalty of “zero to five” years.                          As the crimes all

were punishable by imprisonment for a term exceeding one year,

the    actual       prison   sentence       imposed     is    not    relevant     to   the


       *
        Counts One through Six of which Gavegnano was charged
alleged a violation of 18 U.S.C. § 2252(a)(2), requiring a
punishment of five to twenty years in prison.     See 18 U.S.C.
§ 2252(b)(1) (2006).   Count Seven, alleging a violation of 18
U.S.C. § 2252(a)(4), is punishable by up to ten years in prison.
See § 2252(b)(2) (2006).   Count Eight, alleging a violation of
18 U.S.C. § 1462 (2006), is punishable by up to five years in
prison.



                                             6
determination      of    whether        judicial    notice     in    this    case     was

proper.      See e.g., United States v. Jones, 195 F.3d 205, 207

(4th Cir. 1999).

             Gavegnano’s        additional        assertion,        that    by   taking

judicial     notice     the    district    court     erroneously       precluded      him

from requiring the Government to meet its burden of proof for

the element of § 3251 requiring the alleged crimes to carry a

prison sentence of over a year, is without merit.                      As the length

of   the   penalty      properly    was    a    judicially     noticed      fact,     the

Government was without obligation to prove that element, and we

find no error.

             Gavegnano’s final claim on appeal is that the district

court erred in admitting the forensic report which detailed the

contents     of   the   computer        containing    child    pornography.           His

objection is based on his contention that the chain of custody

for the computer had not been adequately established because

other individuals handled the computer after it was taken away

from him, such that tampering could have occurred.

             Pursuant to Fed. R. Evid. 901(a), a party introducing

evidence     is    required        to     authenticate        it     with    “evidence

sufficient to support a finding that the matter in question is

what   its   proponent        claims.”      The    proper    inquiry       relating    to

chain of custody is whether the authentication testimony was

sufficient to “convince the court that it is improbable that the

                                            7
original      item    had     been    exchanged       with   another    or    otherwise

tampered with.”             United States v. Howard-Arias, 679 F.2d 363,

366   (4th    Cir.     1982)       (citation      omitted).       Chain    of     custody

precision is not an “iron-clad requirement” and a “missing link

does not prevent the admission of real evidence, so long as

there is sufficient proof that the evidence is what it purports

to be and has not been altered in any material aspect.”                               Id.

(internal quotation marks and citation omitted).                        Once evidence

is established that the item is what it is purported to be any

“[r]esolution        of     whether    evidence       is   authentic      calls    for   a

factual determination by the jury. . . .”                         United States v.

Branch, 970 F.2d 1368, 1370 (4th Cir. 1992).                       It is the jury’s

job to evaluate any defects in the chain of custody and accept

or disregard evidence.               United States v. Clonts, 966 F.2d 1366,

1368 (10th Cir. 1992).               The decision to admit evidence at trial

is within the sound discretion of the district court and we

review for abuse of discretion.                      United States v. Jones, 356

F.3d 529, 535 (4th Cir. 2004).

              Here, the Government satisfied its Rule 901(a) burden.

Evidence      was     introduced       that    the    forensic    report      contained

information         found     on     Gavegnano’s      computer.         Evidence      was

presented      that       matched     the   serial     number    for    the     computer

subject to the forensic report with the computer and hard drive

issued   to    Gavegnano.            Gavegnano       admitted    that   the     computer

                                              8
placed into evidence, which was the same computer from which the

files listed in the forensic report were taken, was the same one

taken from him in Qatar.                The Government introduced testimony by

the man who saw pornography on Gavegnano’s computer before it

was     taken   by     the     Government.             There     was    no     evidence    or

indication of any tampering with the computer between the time

it was taken from Gavegnano and the time the forensic report was

compiled.       That others looked at or used Gavegnano’s computer

during the time it was in custody, and the possibility that they

may have tampered with the computer, was an issue for the jury

to consider.         See Branch, 970 F.2d at 1370.                 We find no abuse of

the district court’s discretion when it found the Government had

established      a    sufficient         chain    of    custody        and    admitted    the

forensic report.

            Accordingly,           we    affirm        Gavegnano’s          conviction    and

sentence.       We dispense with oral argument because the facts and

legal    contentions         are   adequately      presented           in    the    materials

before    the    court       and   argument      would     not    aid       the    decisional

process.

                                                                                     AFFIRMED




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