                 NOT RECOMMENDED FOR FULL TEXT PUBLICATION
                            File Name: 11a0199n.06

                                             No. 07-3070                                     FILED
                                                                                          Apr 01, 2011
                           UNITED STATES COURT OF APPEALS                           LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                       )
                                                )
        Plaintiff-Appellee,                     )
                                                )       ON APPEAL FROM THE UNITED
v.                                              )       STATES DISTRICT COURT FOR
                                                )       THE NORTHERN DISTRICT OF
WILLIAM F. HARBOUR,                             )       OHIO
                                                )
        Defendant-Appellant.                    )

BEFORE: KENNEDY and MARTIN, Circuit Judges; MURPHY, District Judge.*

        KENNEDY, Circuit Judge. William Harbour was convicted of attempting to receive by

mail DVDs containing visual depictions of minors engaged in sexually explicit conduct and of

possessing a computer containing child pornography. He appeals the district court’s denial of his

motion to continue his trial, arguing that the district court abused its discretion. For the reasons that

follow, we AFFIRM.

                      FACTUAL AND PROCEDURAL BACKGROUND

        The Presentence Investigation Report (“PSR”) prepared by the United States Probation Office

summarized the underlying facts in this case as follows:

                On or about September 2002, the U.S. Postal Inspection Services, Miami
        Field Office, arrested Angel Mariscal as part of a separate child pornography
        investigation. . . . Mr. Mariscal utilized the business name “CRT” (Cultural Research
        Team), produced child pornography outside of the United States, imported it into the
        United States, and then mailed/shipped it to customers who had previously placed
        orders in response to mailed advertisements/catalogs. . . .

*
The Honorable Stephen J. Murphy III, United States District Judge for the Eastern District of
Michigan, sitting by designation.
         During the investigation of Mr. Mariscal, Postal Inspectors found the names
of individuals identified in order forms, correspondence and/or other paperwork
seized from Mr. Mariscal. Among the seized documents were order forms from
[defendant] William Harbour . . . . The documents indicated that during the period
between May 12, 1998 and April 26, 1999, Mr. Harbour, on four separate occasions,
ordered a total of eight videos from Mr. Mariscal, and CRT, in exchange for $367.
The titles of the videos were “Photo Sessions,” “Teen Modeling,” “Teen Workout,”
“Dancing Aerobics,” “Aquapark,” “Lingerie Display,” “ Dreamers Models,” and “Art
& Beauty 5&6.”
         On April 8, 2004, as part of a U.S. Postal Inspection Service undercover
operation, Postal Inspectors mailed a two page flyer to Bill Harbour . . . . The flyer,
[sic] contained an undercover business name and address offering “taboo,”
“forbidden,” and “hard” to find videos in VHS and DVD formats. The flyer also
contained a catalog request form which allows the recipient to identify their interests
in sexually oriented material.
         On or about April 20, 2004, Postal Inspectors received a response from the
defendant containing the handwritten completed catalog request form previously
mailed to the defendant. The defendant had selected the interests of Pre Teen Girls;
Young Teen Girls (13-16); and that he was interested in buying and/or trading.
         On or about May 11, 2004, Postal Inspectors sent an undercover response
letter to Mr. Harbour, consisting of an order form and movie listing with descriptions.
The order form also contained a disclaimer clearly indicating the movies are
“forbidden in the USA and many parts of the world.” The order form also contained
a listing of the movies with titles and descriptions and read in part; “Young Teen and
Pre Teen Girls (all ages are real!!).”
         On or about June 29, 2004, the Postal Inspectors received a response from
Mr. Harbour, which contained a Travelers Express money order in the amount of
$60, with the request for three movies: 7 Sherri (which the description indicated was
of a 10 year old girl getting sexually abused); Tammy Learns (which the description
indicated was of a 14 years old whore who exposes herself and uses a dildo on
herself); and No Way (which the description indicated was of a 9 year old girl being
molested with her hands tied and looks as if she is being raped).
         Postal Inspectors then prepared an Express Mail envelope with three disks
that met the description of those ordered. The envelope, while under surveillance
until it was received at the defendant’s residence, was delivered to Mr. Harbour on
July 21, 2004.
         A search was conducted on the defendant’s residences after receipt of the
movies on July 21, 2004. During the search, Postal Inspectors recovered the three
movie disks and the opened mailing envelope. Also found were numerous 8mm
tapes and rolls of film which showed the defendant had traveled to area malls, parks
and other areas and had taken pictures and videos of teen aged girls. Also, law
enforcement found a computer with between 10 and 150 images of child pornography
found in the temporary files and unallocated space.


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       On August 1, 2006, a federal grand jury in the Northern District of Ohio returned a two-count

indictment against Harbour charging him with: (1) knowingly attempting to receive by mail three

DVDs containing visual depictions of real, not virtual minors engaged in sexually explicit conduct

in violation of 18 U.S.C. § 2252(a)(2); and (2) knowingly possessing a computer that contained child

pornography in violation of 18 U.S.C. § 2252(a)(2).

       Attorney David C. Jack was appointed to represent Harbour pursuant to the Criminal Justice

Act (“CJA”). At his arraignment on August 22, 2006, Harbour pleaded not guilty. On August 25,

2006, the district court entered a scheduling order setting the pre-trial conference for September 22,

2006 and commencement of the jury trial for October 2, 2006.

       On September 20, 2006, Harbour filed a motion to continue the pre-trial conference and trial.

In this motion, Harbour argued:

                Defendant and the government have not been able to review important
       evidence that is necessary for the Defendant to present an adequate defense.
       Specifically, Count II of the indictment charges, [sic] possession of a computer that
       contains child pornography. The computer in question was obtained from
       Rent-A-Center and neither the Defendant nor the government at this time have been
       able to determine what information may have been on the computer prior to the
       Defendant obtaining possession of the computer.
                Defendant has attempted to obtain possession of the appropriate information
       and has been unsuccessful. Defendant does not anticipate that he will receive the
       information prior to the pretrial and also will not have adequate time to prepare for
       trial on October, [sic] 2006.

At the pre-trial conference on September 22, 2006, the district court granted Harbour’s motion to

continue the trial and rescheduled the jury trial to commence on October 23, 2006.

       On September 26, 2006, through Attorney Jack, Harbour moved for the appointment of an

expert to analyze the computer alleged to contain child pornography. In support of his motion,

Harbour argued that “[a]n expert is necessary for the Defendant to present an adequate defense


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because the government is alleging that pornography contained on the Defendant’s computer was

knowingly placed there by the Defendant and the Defendant disputes said claim. The expert is

necessary to determine the dates relative to the pornography.” The government did not object to

Harbour’s request for the appointment of an expert and the district court granted the motion on

October 7, 2006.

        On October 11, 2006, the district court held a status conference. At that time, Attorney Jack

stated on the record that he believed that the case was near resolution. The district court explained

that it wanted to reschedule the trial because of other cases set for trial on October 23, 2006 and that

it hoped to advance the trial schedule by a week. Attorney Jack did not object. On October 12,

2006, the district court rescheduled trial to commence on October 18, 2006, five days earlier than

previously scheduled.

        Another status conference was held on October 16, 2006. The district court first inquired as

to whether Harbour was going to change his plea. Attorney Jack responded that Harbour told him

that morning that he had retained new counsel. Harbour spoke at the conference and requested a

continuance of the trial because of the retention of counsel. The court denied the request. That same

day, Harbour filed an entry of appearance for retained counsel Myron Watson and Fernando Mack.

Attorney Jack was terminated as counsel, but the district court instructed him to assist at trial.

        On October 17, 2006, Harbour’s new attorneys filed a second motion to continue the trial.

In support of the motion, Harbour’s attorneys argued:

        1. That counsel was just retained yesterday (October 16, 2006) by the Defendant in
        the above captioned case;
        2. That counsel has been advised by his client that he was unsatisfied with the
        performance of his prior counsel, who had not reviewed relevant documents, and it



                                                   4
       is the client’s belief that he and his prior counsel were not prepared to proceed with
       a trial;
       3. That present counsel is seeking a continuance for reason that we have been unable
       to review all of the necessary documents in this case to be conversant in trying this
       case by tomorrow (October 18, 2006) morning;
       4. That counsel spoke with the Defendant on two prior occasions, however these
       conversations are woefully insufficient to prepare for a trial of this magnitude and
       significance;
       5. That the Defendant is entitled to effective assistance of counsel, and his present
       counsel would be unable to be prepared for trial without sufficient time to review and
       analyze all of the relevant factual and legal issues; and
       6. That counsel is not seeking a continuance to unduly delay these proceedings, but
       only to provide our client with effective assistance of counsel, to which he is entitled.

On October 17, 2006, the district court granted Harbour’s motion and rescheduled the trial to

commence on October 24, 2006.

       On October 19, 2006, Harbour again moved to continue the trial. In this motion, he argued:

       1. That counsel was just retained on October 16, 2006 by the Defendant in the above
       captioned case;
       2. That counsel has been advised by the Government, Assistant U.S. Attorney
       Michael Sullivan, that there are voluminous 8 millimeter films and videotapes that
       were seized by the Government and have not been viewed by counsel.
       3. That counsel is scheduled to meet with the case agent on October 20, 2006 at
       10:00 a.m. at the U.S. Attorney’s office to view all of the Government’s evidence,
       including 8 millimeter films and videotapes, that he might utilize as evidence in this
       case.
       4. That present counsel is seeking a continuance for reason that we will be unable
       to fully review all of the relevant films, videotapes and documents in this case to be
       prepared for the trial of this matter by October 24, 2006;
       5. That the Defendant is entitled to effective assistance of counsel, and his present
       counsel will be unable to be prepared for trial without sufficient time to review and
       analyze all of the Government’s evidence (which includes, according to the
       Government, maybe eighty-five [85] videotapes/films); and
       6. That counsel is not seeking a continuance to unduly delay these proceedings, but
       only to provide our client with effective assistance of counsel, to which he is entitled.

The district court denied this motion on October 20, 2006, noting:

       Defendant was appointed counsel on 8/22/06, granted a continuance on 9/22/06 as
       to the original trial date of 10/2/06 and granted the services of an expert on 10/7/06.


                                                  5
       Defendant retained counsel on 10/16/06 and on 10/17/06 defendant was granted a
       second continuance of the trial date. The motion for a continuance of the 10/24/06
       trial date is denied. Original CJA counsel on this case, David Jack, shall appear for
       trial on 10/24/06 . . . to assist retained counsel as needed.

       On October 23, 2006, Harbour moved for reconsideration of the court’s denial of his October

19, 2006 motion. In support of this motion, Harbour argued:

       1. That the docket reveals that Defendant’s prior counsel had sought an appointment
       of a Forensic Expert which was granted by the Court on October 7, 2006;
       2. That an expert was never retained by prior counsel to examine the computer
       seized by the Government, or to review any expert reports or findings made by the
       Government’s expert;
       3. That counsel was, on Friday, October 20, 2006, advised that the Government
       seeks to use expert testimony regarding erased photo images, file folders showing
       pornographic pictures, and e-mail transmissions purportedly taken from the
       Defendant’s computer;
       4. That the Defendant should be allowed to hire his own expert to challenge the
       validity of the Government’s expert findings;
       5. That defense counsel is likewise concerned that it was unable to view all of the
       voluminous film/videotape evidence in the possession of the Government;
       6. That counsel is seeking this continuance only for the purpose of providing the
       Defendant with effective assistance of counsel, to which the Defendant is entitled.

(emphasis in original). On October 23, 2006, the district court denied Harbour’s motion to

reconsider without further explanation.

       Trial commenced on October 24, 2006, as scheduled. Prior to the jury being seated,

Harbour’s counsel reiterated his desire to continue the trial. Attorney Mack also expanded on the

arguments raised in Harbour’s October 23, 2006 motion regarding the retention of an expert witness

and the films and videotapes in the government’s possession. On the subject of the expert witness,

Attorney Mack argued that Harbour was entitled to have an expert witness examine the digital

images to determine whether they depicted real or virtual children. The government replied that

Harbour’s prior counsel had intimated that an expert witness was needed to ascertain when the



                                                6
images were put on the computer. Because the government conceded that it could not determine

when the images were put on the computer, Harbour’s prior counsel decided that an expert witness

was no longer needed. The court again denied a continuance of the trial, explaining that the trial

needed to commence shortly to avoid running afoul of the Speedy Trial Act.

        After the trial ended on October 25, 2006, Harbour was found guilty on both counts of the

indictment. Thereafter, Harbour was sentenced to 70 months’ incarceration.

        Harbour timely appealed.

                                              ANALYSIS

        Harbour argues that the district court abused its discretion in denying his motion to continue

the trial.1 We review a district court’s decision to deny a motion for a continuance for abuse of

discretion. United States v. King, 127 F.3d 483, 486 (6th Cir. 1997). “Trial judges necessarily

require a great deal of latitude in scheduling trials[,] . . . [and] broad discretion must be granted [to]

trial courts on matters of continuances.” Morris v. Slappy, 461 U.S. 1, 11 (1983). To succeed on

appeal, an appellant must show that the denial resulted in actual prejudice. United States v. Crossley,

224 F.3d 847, 855 (6th Cir. 2000). “‘Actual prejudice’ is established ‘by showing that a continuance

would have made relevant witnesses available or added something to the defense.’” Id. (quoting

King, 127 F.3d at 487). Harbour argues that he was prejudiced for two reasons: first, he was denied



1
 Harbour also argues that the district court erred in allowing testimony regarding CRT and the videos
it had shipped to Harbour because there was no evidence that those videos contained child
pornography. Harbour concedes that he did not object to the introduction of these materials at trial.
Though he claims that this failure was “[p]erhaps a product of the relative unfamiliarity [his retained
counsel had] with the case after only 8 days preparation,” because Harbour failed to object to the
admission of this evidence at trial, we review the district court’s admission of the evidence for plain
error. See Fed. R. Crim. P. 52(b). We hold that the district court did not commit plain error in
admitting this evidence which established why Harbour was targeted for the undercover operation.

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the ability to offer an expert witness at trial; and second, his retained counsel was unable to

adequately review discovery materials. We disagree with both arguments and conclude that the

district court did not abuse its discretion in denying Harbour’s motion for a third continuance.

       Harbour first argues that the district court should have granted his motion to continue the trial

so that he could secure the services of a computer forensic and digital imagery expert. Harbour

presents the issue on appeal as concerning a misunderstanding about whether the government was

going to proceed on the second count of the indictment. According to Harbour, the government had

conceded this count, but his counsel did not learn until October 20, 2006 that the government

“intended to proceed on the charges contained in count 2 despite . . . this ‘concession.’” Apparently

the only concession by the government was that it could not ascertain when the digital images were

placed on the allegedly rented computer, not that it was going to drop that count of the indictment.

       Attorney Jack’s motion to retain an expert witness quite plainly stated that it was for the

purposes of determining when the digital images were placed on Harbour’s computer—a perceived

issue because of an allegation that the computer was a rental that had not always been in Harbour’s

possession or control. The government conceded that it could not offer evidence regarding when the

images were placed on the computer. Consequently, Attorney Jack decided that the expert witness

was unnecessary. At trial, however, defense counsel argued that a digital imagery expert was needed

because it was possible that the images depicted were not of real children. This was an entirely new

justification for the retention of an expert witness, one first raised in Harbour’s motion for

reconsideration a few days prior. The government disputed this argument, correctly noting that

pursuant to 18 U.S.C. § 2256(8), the difference between child pornography created using real




                                                  8
children or images that were “indistinguishable” from images of real children was irrelevant for this

case.

        Though Harbour’s stated need for a digital imagery expert is a moving target—in his

appellate brief, he claims to have needed an expert witness to counter the government’s expert

witness and “to independently explore potential issues concerning digital imagery”—one fact is

immutable: the district court authorized the retention of an expert for Harbour, and Harbour failed

to retain such an expert. We are therefore left with a situation where a defendant sought and

received authorization to retain an expert witness, declined to do so, and now claims on appeal that

the district court abused its discretion in not providing additional time to the defendant to do exactly

what he had not done previously. Indeed, Harbour entirely blames the district court for this and

argues that he “was denied the benefit of those [expert] services because of the district court’s refusal

to grant a meaningful continuance of the trial.” This is simply untrue. The only actor in this case

who prevented Harbour from retaining an expert witness was Harbour, in conjunction with his

appointed counsel.2

        As for Harbour’s argument that his counsel did not have adequate time to investigate and

prepare for trial, we disagree. As the district court noted in its October 20, 2006 order, Harbour was

appointed counsel on August 22, 2006 with an original trial date of October 2, 2006. The trial date

was delayed twice at Harbour’s request. The fact that Harbour waited until October 16, 2006 to

retain new counsel was his decision and, in fact, the district court did grant a continuance after new


2
 For this reason, Harbour’s citations to cases regarding the need for criminal defendants to be able
to retain expert witnesses to aid in their defenses are irrelevant. Here, the district court agreed with
Harbour’s proffered reason for the need to retain an expert witness. Whether Attorney Jack erred
in declining to retain a digital imagery expert is not a relevant inquiry for this court in considering
whether the district court abused its discretion in denying Harbour’s third motion for a continuance.

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counsel was retained. The district court also required Attorney Jack to aid retained counsel at trial.

Both of these facts that mitigate against any prejudice. See United States v. Martin, 740 F.2d 1352,

1361 (6th Cir. 1984) (holding that there was no abuse of discretion when new counsel had a week

to prepare for trial and “presumably had access to the fruits of appointed counsel’s earlier preparation

efforts”). Moreover, retained counsel did review the evidence provided by the government on

October 20, 2006 and did not need to rely entirely on whatever work Attorney Jack had completed

prior to his termination.

        Indeed, when considering both of Harbour’s arguments that the district court abused its

discretion, we are struck that neither presents evidence of actual prejudice.3 Other than retaining an

expert witness on an immaterial topic or reviewing evidence and preparing arguments at a more

leisurely pace, Harbour’s appeal is strikingly bereft of an explanation as to what counsel would have

done differently had the district court granted the continuance.4 “Every lawyer on the losing side of

a case probably feels that if he had had a little more time he might have done something else which



3
 This is also true for Harbour’s related argument regarding his counsel’s inability to review certain
film and videotape evidence assembled against him. Because Harbour does not argue that had the
government provided access to any particular evidence earlier he would have formulated a different
defense, he has not demonstrated that he suffered actual prejudice by the district court’s denial of
his motion for a continuance. Harbour does not argue on appeal that the government improperly
withheld any evidence, which would be a very different claim indeed from an allegation that the
district court abused its discretion in denying Harbour’s motion for a continuance.
4
 For example, Harbour suggests that if given an additional continuance, his counsel may have been
better prepared for trial and objected to the district court’s characterization to the jury of what digital
imagery is. However, demonstrating that he does not even allege actual prejudice regarding this, he
states on appeal: “While this may not have been a successful defense, it was a defense.” (emphasis
in original). While an appellant need not prove that an argument would have necessarily been
successful if raised at trial, he must do more than claim that he could have done something
differently and maybe that would have led to a different result. That truism does not demonstrate
actual prejudice.

                                                    10
would have been helpful.” Martin, 740 F.2d at 1361 (quoting Sykes v. Commonwealth of Virginia,

364 F.2d 314, 316 (4th Cir. 1966)). Because Harbour has not shown that the district court’s denial

of his motion for a continuance actually prejudiced his defense, his appeal must fail. See King, 127

F.3d at 486-87 (holding that the district court did not abuse its discretion in denying a motion to

continue when, on appeal, the defendant could not present cogent arguments of how his trial defense

was prejudiced in the absence of a continuance).

       For these reasons, we AFFIRM.




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