     Case: 11-41211    Document: 00512072402      Page: 1    Date Filed: 12/04/2012




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                      FILED
                                                                 December 4, 2012
                                  No. 11-41211
                                                                     Lyle W. Cayce
                                                                          Clerk
UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

v.

TRAVIS HUNTER BLANK,

                                             Defendant - Appellant.



                 Appeal from the United States District Court
                       for the Eastern District of Texas



Before WIENER, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:
      Travis Hunter Blank (“Blank”) appeals his convictions for transporting
child pornography in violation of 18 U.S.C. § 2252(a)(1) and (b)(1), and for
possessing child pornography in violation of § 2252(a)(4)(B) and (b)(2). Blank
asserts that (1) the district court abused its discretion when it dismissed the
original indictment without prejudice for violation of the Speedy Trial Act, 18
U.S.C. §§ 3161-3174, (2) there is insufficient evidence to support the jury’s guilty
verdict, and (3) the district court abused its discretion by allowing the jury to
view several images of child pornography. We AFFIRM.
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                                  No. 11-41211

                                        I.
      A video clip depicting child pornography sent from Blank’s e-mail account
triggered an investigation leading to the issuance of a warrant to search his
home. At the time the officers executed the search warrant, Blank voluntarily
spoke with Detective Jeff Rich. During this conversation, Blank admitted that
he downloaded child pornography to his computer and that he sent the video
clip depicting child pornography from his e-mail account. He further admitted
that he had viewed child pornography for the past ten years. Blank then
completed a written statement containing the following admission: “I have
looked at child pornography for over the past 10 years through speaking to
people on AOL in chatrooms. I don’t keep any images. I look and delete.
Youngest I’ve seen might be 10. Over 10 years, maybe I’ve seen 1,000 pictures.”
      Blank’s computers were seized, and a forensic examination revealed a
total of twenty-four images of child pornography, including one which
established that the video clip sent from Blank’s e-mail account was on his
computer. While Blank was in custody awaiting trial, several of his phone calls
to family members were recorded and were admitted into evidence at trial. In
one call, Blank mused that if AOL software could detect the age of a person in
a photograph sent through an e-mail, he “would have been caught 10 years ago,
nine years ago, eight years ago, seven years ago.” In other calls he stated that
“I’ve done it before and its never been caught” and “I hate to say it, but I should
have been caught a long time ago.”
      Approximately one month into his pretrial detention, Blank told one of his
sisters that he had learned that an attorney had successfully defended a client
in a child pornography case by having the defendant blame another individual
who resided in the defendant’s home. Shortly after this conversation, Blank
told his other sister that an English teenager (“the teenager”) who had lived




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                                       No. 11-41211

with Blank for approximately seven years1 was responsible for the child
pornography. Blank’s theory at trial was that the teenager was responsible for
the child pornography and that Blank’s confessions to officers and family
members were merely attempts to protect the teenager from deportation.2
       On July 8, 2009, approximately one month after he had confessed to the
crimes, Blank was charged in a two-count indictment with transporting and
possessing child pornography. His trial was initially set for January 2010. In
November and December 2009, Blank’s counsel filed motions to withdraw, to
continue the trial date, and to obtain a psychiatric examination for Blank.
These motions were granted and, pursuant to Blank’s request, his initial trial
setting was vacated and a final pretrial conference was scheduled for May 10,
2010. After the district court found Blank competent to stand trial in March
2010, he filed a motion for release from custody because of health problems. On
April 14, 2010, the day after Blank filed that motion, a magistrate judge
ordered him released on condition of home detention
       On May 5, 2010, Blank filed a motion to dismiss for violation of the
Speedy Trial Act. The government responded within two days, agreeing that
there was a violation, but urging that the dismissal be without prejudice. On
May 10, 2010, the court held a second pretrial conference and took Blank’s
motion to dismiss under advisement. Almost ten months later, on March 3,
2011, the district court dismissed the indictment without prejudice, explaining
in part:
       Given the seriousness of the charged offenses; the facts and


       1
         The teenager, originally from England, lived with Blank (who was a hockey coach and
referee) so that he could develop his hockey skills. The teenager lived with Blank from
approximately 2002 until 2009.
       2
         It is undisputed that the teenager returned to England closely following the execution
of the search warrant at Blank’s home. The teenager was no longer in the country when Blank
was arrested a few weeks later. All confessions Blank made to his family members occurred
after the teenager had returned to England.

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       circumstances which led to this dismissal; the fact that a dismissal
       with prejudice would neither serve as a deterrent to the
       Government or the court nor serve the public interest in bringing
       the accused to trial; and the fact that there has been no prejudice
       to the Defendant for which the Government is responsible in
       connection with this Speedy Trial Act violation, the court declines
       to dismiss this case with prejudice.

       The court acknowledges the ten month delay in ruling on this
       motion to dismiss. That is certainly not the fault of the
       Government, but rather is due to the fact that the court did not
       attend to this matter as quickly as the court should have attended
       to it.
A week later, on March 10, 2011, Blank was charged in a two-count indictment
based on the same underlying conduct as in the first indictment. Blank filed a
motion to dismiss this indictment, alleging a violation of the Speedy Trial Act
and arguing that the “clock” continued to tick and was not reset by the filing of
the second indictment. The district court denied the motion. On June 20, 2011,
Blank’s jury trial commenced, at the end of which the jury returned a guilty
verdict on both counts. Blank was sentenced to 121 months’ imprisonment on
count one and 120 months’ imprisonment on count two, to be served
concurrently. This appeal followed.
                                             II.
       Blank first challenges the district court’s decision to dismiss the first
indictment without prejudice.3          Both parties agree that the district court
correctly dismissed the first indictment, but dispute whether the court erred in
dismissing without prejudice, which ultimately allowed for a successful
reprosecution.


       3
         Blank has not alleged a violation of his Sixth Amendment right to a speedy trial.
Accordingly, we hold that Blank has waived any potential Sixth Amendment violation that
might have existed on these facts. See United States v. Molina-Solorio, 577 F.3d 300, 304 n.2
(explaining that a “claim under the Speedy Trial Act differs in some significant ways from a
claim under the Sixth Amendment speedy trial clause” (quoting United States v. Frye, 372
F.3d 729, 734 (5th Cir. 2004)).

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      “[T]he decision whether to dismiss a complaint under the Speedy Trial Act
with or without prejudice is entrusted to the sound discretion of the district
judge and . . . no preference is accorded to either kind of dismissal.” United
States v. Melguizo, 824 F.2d 370, 371 (5th Cir. 1987) (internal quotations
omitted). Accordingly, we review a district court’s decision to dismiss an
indictment without prejudice for noncompliance with the Speedy Trial Act for
an abuse of discretion. United States v. Blevins, 142 F.3d 223, 225 (5th Cir.
1998) (citing United States v. Taylor, 487 U.S. 326, 342–43 (1988)).
      A district court considering whether to dismiss with or without prejudice
must address each of the following factors: (1) the seriousness of the offense; (2)
the facts and circumstances which led to the dismissal; and (3) the impact of a
reprosecution on the administration of the Speedy Trial Act and on the
administration of justice. See 18 U.S.C. § 3162(a)(2).
                                        A.
      Blank does not challenge the district court’s conclusion that possessing
and transmitting child pornography are serious offenses. He argues, however,
that even though the charged crimes are serious, the “low” number of images
of child pornography discovered on his computer demonstrates that “he does not
fit the general profile of a child pornographer and his alleged violations are not
as serious as other alleged child pornography offenders.” We disagree. Twenty-
four images of child pornography is not such a low number as to mitigate the
seriousness of the offense. Moreover, Blank’s voluntary admission that he had
viewed more than 1000 images over the previous decade highlights the
seriousness of his conduct.
                                       B.
      The second factor requires consideration of the facts and circumstances
leading to dismissal. Normally, this factor concerns the government’s reason
for violating the Speedy Trial Act, and, accordingly, the burden is on the


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                                  No. 11-41211

government to explain the violation. See, e.g., United States v. Mancia-Perez,
331 F.3d 464, 468 (5th Cir. 2003); Blevins, 142 F.3d at 226 (“Regarding the facts
and circumstances leading to the dismissal, we look to whether the Government
sought the resultant delays for ulterior purposes as well as whether the
Government’s failure to meet deadlines was repetitive, regular, and frequent
with respect to this defendant.”).     In this case, Blank concedes that the
government did not contribute to the violation of the Speedy Trial Act and that
the significant delay did not allow the government to gain a strategic or tactical
advantage in the prosecution of his case. Rather, the parties agree that the sole
cause for the delay was the district court’s overcrowded docket. This conclusion,
however, does not end the inquiry.
      Delay attributable to the trial court, just as delay attributable to the
government, weighs in favor of dismissal with prejudice. See United States v.
Peeples, 811 F.2d 849, 851 (5th Cir. 1987) (explaining that “[i]f the prosecutor
or the district court were entirely at fault for the delay[,]” the defendant’s
arguments for dismissal with prejudice would be viewed more favorably); see
also United States v. Ramirez, 973 F.2d 36, 39 (1st Cir. 1992) (“When a [Speedy
Trial Act] violation is caused by the court or the prosecutor, it weighs in favor
of granting a dismissal with prejudice.”); United States v. Stayton, 791 F.2d 17,
19–20 (2d Cir. 1986) (“The Speedy Trial Act was designed to effectuate the
interests of society in general and of the defendant in particular by ensuring
that our courts mete out speedy justice. The prosecutor, defense counsel, and
the court each plays a role in insuring that the interests of the public and the
defendant in a speedy trial are protected.” (internal citation omitted)). As the
Supreme Court has explained, delay attributable to a “neutral reason such as
negligence or overcrowded courts should be weighted less heavily but
nevertheless should be considered since the ultimate responsibility for such
circumstances must rest with the government rather than with the defendant.”


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Barker v. Wingo, 407 U.S. 514, 531 (1972); see id. (contrasting these “neutral
reasons” with (1) deliberate attempts to delay a trial in order to disadvantage
the defendant, which should be weighed heavily against the government, and
(2) “valid reasons,” such as a missing witness, that justify delay).
       Here, the parties, as well as the district court, agree that the sole cause
for the violation of the Speedy Trial Act was that court’s overcrowded docket.4
Although this is a “neutral reason,” it weighs in favor of dismissal with
prejudice.
                                               C.
       The final factor that must be considered—the impact of a reprosecution
on the administration of the Speedy Trial Act and on the administration of
justice—encompasses three concerns: (1) the defendant’s right to a timely trial;
(2) the potential deterrent effect of a prejudicial dismissal on repeated violations
of the Speedy Trial Act; and (3) the public’s interest in bringing the defendant
to trial. See Mancia-Perez, 331 F.3d at 469. Courts must also consider the
presence or absence of prejudice to the defendant caused by the violation. Id.
(citing Taylor, 487 U.S. at 334).
       As to the first concern, there is no question that Blank did not receive a
timely trial. As to the second concern, the government argues that there would
be no deterrent effect of a prejudicial dismissal in this case because the district
court acknowledged that the delay was solely attributable to its caseload. We
disagree. As the parties acknowledged at oral argument, criminal trials in the

       4
         The district court inexplicably took almost ten months to issue a brief four-page order
ruling on the largely undisputed motion to dismiss. By the time the district court issued its
ruling on March 3, 2011, the total delay was 457 days beyond the limit imposed by the Speedy
Trial Act. In contrast to the delay prior to the motion to dismiss, which was at least partly
attributable to Blank’s pretrial motions that required rescheduling of the initial trial date, the
district court’s overcrowded docket does not excuse a ten-month delay to issue a brief ruling
in a criminal case. We are not blind to the burdens faced by the district court in managing an
overcrowded docket. As the court noted in its order, it must juggle a significant number of
criminal and civil cases. Although delays attributable to an overcrowded docket are
understandable, however, they do not excuse or minimize violations of the Speedy Trial Act.

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Sherman Division are routinely scheduled beyond the time limits of the Speedy
Trial Act. Accordingly, our requiring a prejudicial dismissal in this case would
send a stronger message to the district court that it must comply with the
requirements of the Speedy Trial Act.5 See United States v. Johnson, 29 F.3d
940, 946 (5th Cir. 1994) (“Weighing in favor of dismissal with prejudice, we note
that the [Speedy Trial] Act was designed to protect a defendant’s right to a
timely trial, and dismissal with prejudice is more likely to cause the government
and the courts diligently to comply with the Act’s requirements.”); see also
United States v. Caparella, 716 F.2d 976, 981 (2d Cir. 1983).6 The third concern,
as noted above, weighs in favor of dismissal without prejudice because the public
has a great interest in bringing to trial defendants who have been accused of
committing serious crimes. See Johnson, 29 F.3d at 946.
       Finally, we consider whether the violation prejudiced Blank.                         The
Supreme Court has explained:
       Prejudice, of course, should be assessed in the light of the interests
       of defendants which the speedy trial right was designed to protect.
       This Court has identified three such interests: (i) to prevent
       oppressive pretrial incarceration; (ii) to minimize anxiety and
       concern of the accused; and (iii) to limit the possibility that the
       defense will be impaired. Of these, the most serious is the last,
       because the inability of a defendant adequately to prepare his case
       skews the fairness of the entire system.
Barker, 407 U.S. at 532.
       We consider the most serious type of prejudice, i.e., the possibility that


       5
        We disagree with the district court’s statement that “a dismissal with prejudice is not
more likely to cause this court to comply with the Act.”
       6
         Prejudicial dismissal in this case might encourage the government to go beyond that
which it is required to do and take appropriate actions to encourage a district court to schedule
criminal trials within the Speedy Trial Act’s limits and to rule timely on outstanding motions
implicating speedy trial concerns. See Ramirez, 973 F.2d at 39 (“Even though a prosecutor
does not bear the burden of monitoring the court’s compliance with the [Speedy Trial Act] in
absence of an announced rule, district courts do look to prosecutors for assistance as officers
of the court.”).

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Blank’s defense was impaired by the substantial delay experienced in this case.
Although Blank claims in his reply brief7 that three witnesses suffered from
memory loss by the time of his trial, he has failed to demonstrate how the lapses
in memory harmed his defense. Even if the witnesses had testified as fully as
Blank had wished, that testimony would not have cast doubt on the veracity of
his confessions. Blank’s other claims of prejudice are also unavailing because
he has failed to establish a link between his job loss and medical conditions and
the violation of the Speedy Trial Act.8
                                                D.
       After conducting this substantive review of the district court’s decision to
permit reprosecution, we are satisfied that the court did not err in dismissing
the indictment without prejudice. Although this might have been a close case
in the district court, we cannot say that the district court abused its discretion
in dismissing the indictment without prejudice, particularly given the
seriousness of the offenses at issue, the absence of any prosecutorial
gamesmanship or governmental cause of the delay, or any material evidence of
prejudice to Blank’s defense.
                                               III.
       Blank next challenges the sufficiency of the evidence to uphold his
convictions. Because Blank properly preserved this argument, our review is de
novo. United States v. Shum, 496 F.3d 390, 391 (5th Cir. 2007). “In deciding


       7
         This court generally will not consider an issue raised for the first time in a reply brief.
See, e.g., United States v. Rodriguez, 602 F.3d 346, 360 (5th Cir. 2010). Nevertheless, given
the significant delay in this case, we address this contention to ensure that any potential
prejudice to Blank’s defense is considered.
       8
          The record indicates that Blank was no longer employed at the time he was first
arrested—accordingly, the violation had no impact on his loss of employment. The record also
is clear that Blank was released from pretrial detention one day after he filed a motion for
release—which was a few weeks before he asserted his right to a speedy trial—so that he
would be able “to access his private physicians and hospitals in order [to] have a more
thorough diagnosis and treatment regimen.”

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whether the evidence was sufficient, we review all evidence in the light most
favorable to the verdict to determine whether a rational trier of fact could have
found that the evidence established the essential elements of the offense beyond
a reasonable doubt.” Id.
       Blank does not contend that the evidence was insufficient to establish any
essential element of the offenses charged—rather, he claims only that the
evidence presented “gives equal circumstantial support to the possibility” that
the teenager was responsible for the child pornography, and that the jury could
not reasonably exclude this alternative theory without speculation. Blank
relies on this court’s decision in United States v. Moreland, 665 F.3d 137 (5th
Cir. 2001). In Moreland, this court explained that “[w]hen the government
seeks to prove constructive possession of contraband found in a jointly occupied
location, it must present additional evidence of the defendant’s knowing
dominion or control of the contraband, besides the mere joint occupancy of the
premises, in order to prove the defendant’s constructive possession.” Id. at 150.
       At trial, Blank’s theory of the case was that the teenager, who also used
the computer on which images of child pornography were found, was
responsible for the images. This ignores the overwhelming contrary evidence
offered by the government at trial. Specifically, in oral and written statements
to Detective Rich, Blank had admitted that he was guilty of the charged
offenses and that he had been viewing child pornography for years. Blank had
made similar admissions to several family members while he was incarcerated
awaiting trial. Although Blank testified at trial that he had been lying to the
police and family to protect the teenager, the jury could properly choose which
of Blank’s renditions of the facts was more credible.9 Viewed in the light most


       9
         Moreover, given the totality of the evidence offered at trial, it is unlikely that any
rational trier of fact would have found Blank’s attempt to pin the crime on the teenager
credible. As an example of the many inconsistencies in Blank’s theory, Blank continued to
admit to the offenses well after the teenager had returned to England and deportation was no

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favorable to the verdict, the evidence is sufficient for a rational trier of fact to
conclude beyond a reasonable doubt that Blank possessed and transported child
pornography.
                                             IV.
       Blank’s final contention is that the district court abused its discretion by
admitting two exhibits10 of child pornography after Blank offered to stipulate
that the material was child pornography. That claim is foreclosed by this court’s
decision in United States v. Caldwell, 586 F.3d 338 (5th Cir. 2009).11                      In
Caldwell, we explained that “child pornography is graphic evidence that has
force beyond simple linear schemes of reasoning. It comes together with the
remaining evidence to form a narrative to gain momentum to support jurors’
inferences regarding the defendant’s guilt.” Id. at 343. Accordingly, we found
that this type of evidence falls under the general rule described by the Supreme
Court in Old Chief v. United States, 519 U.S. 172 (1997), i.e., that “the
prosecution is entitled to prove its case free from any defendant’s option to
stipulate the evidence away . . . .”12 519 U.S. at 189. We conclude that the



longer a concern. Also, instead of merely admitting that he sent the e-mail and that any
images on the computer were his, Blank admitted to ten years of viewing over a thousand
images of child pornography. This admission is inconsistent with a desire merely to protect
the teenager, who had been living with Blank for only six years.
       10
        The jury was shown one video and five images of child pornography out of the twenty-
four images found on Blank’s computer.
       11
          Blank’s attempt to distinguish Caldwell is unavailing. It is true that Blank’s
proffered stipulation was broader than the stipulation at issue in Caldwell because Blank also
offered to stipulate that anyone viewing the images would immediately know that they
contained child pornography. This distinction, however, was not central to the court’s
reasoning in Caldwell and thus fails to provide support for Blank’s argument. See Caldwell,
586 F.3d at 343.
       12
          The Supreme Court in Old Chief determined that the district court had abused its
discretion in admitting the defendant’s record of conviction rather than allowing a stipulation
to convict status. 519 U.S. at 191–92. The Court distinguished that case from others, like this
one, in which the prosecutor seeks to offer evidence concerning the instant offense for which
the defendant is being tried. See id.

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district court did not abuse its discretion by admitting the images of child
pornography discovered on Blank’s computer, which he was charged with
possessing and transporting.
AFFIRMED.




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