                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-13-2006

USA v. George
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3000




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 05-3000
                                    ____________

                          UNITED STATES OF AMERICA

                                            v.

                              ALVIN W. GEORGE, JR.,

                                          Appellant
                                    ____________

                    On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                                 (D.C. No. 03-cr-00299)
                    District Judge: Honorable James F. McClure, Jr.
                                     ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 December 11, 2006

                  Before: FISHER and CHAGARES, Circuit Judges,
                        and BUCKWALTER,* District Judge.

                              (Filed December 13, 2006)
                                    ____________

                              OPINION OF THE COURT
                                   ____________




      *
        The Honorable Ronald L. Buckwalter, United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
FISHER, Circuit Judge.

       Alvin George, Jr. was charged by a superceding indictment with five counts of

sexual exploitation of a minor, in violation of 18 U.S.C. § 2252(a). Following a four-day

jury trial, George was convicted on all five counts of the indictment. After the District

Court denied his motion for a new trial, he was sentenced to 60 months in prison. He

now appeals his conviction. We have jurisdiction pursuant to 28 U.S.C. § 1291. For the

reasons below, we will affirm his conviction.

                                              I.

       As we write only for the parties, who are familiar with the factual context and the

procedural history of the case, we will set forth only those facts necessary to our analysis.

In July 2003, authorities were alerted by Yahoo!, an internet service provider, that an

individual using the screen name “tinylittlepus” was downloading child pornography. A

follow-up investigation revealed that the account owner was listed as a “Ms. Al George,”

who resided in Lock Haven, Pennsylvania, and was born on July 21, 1977, the same place

of residence and date of birth as the defendant. After obtaining a search warrant for the

George residence, federal investigators searched the house and discovered a computer

containing images of child pornography. George was arrested and charged for possessing

the illegal images.1




       1
       George does not contend on appeal that the images did not constitute child
pornography. He only contests whether he was the person who downloaded them.

                                              2
      Evidence at trial indicated that George lived at the address in Lock Haven during

the time the pornography was downloaded and shared the household with only one other

adult, Brenda Smartwood. In addition, George’s teenaged cousin, Nicole Vincent, had

lived at George’s house for part of the summer of 2003. Vincent testified that she and her

friends used the computer, but she did not download or access child pornography nor did

her friends download it in her presence. Smartwood likewise testified that she never

downloaded child pornography.

      Evidence at trial also indicated that George utilized a Yahoo! account,

“alvingeorge1,” for regular email activity. After midnight on September 25, 2003, shortly

before several pornographic images were downloaded, George updated the profile of his

Yahoo! account registered under alvingeorge1. Further, emails were received by

tinylittlepus@yahoo.com from an e-mail address registered to Alvin George,

alving@adelphia.net. Three days before the emails were sent, George used the Adelphia

email account to seek work doing odd jobs from another individual.

      At trial, George testified that he knew little about computers, that Smartwood used

the computer more often, and that she often organized his email for him. Additionally, he

claimed that he had an alibi for some of the times at which child pornography was

downloaded to his computer. To support that contention, he introduced into evidence

yellow pay-stubs that included the words “Alvin’s hrs.” or “Alvin” at the top. Each

receipt contained the days and hours George allegedly worked for John Cebulka, who

owned and operated an asphalt paving operation. George admitted that he was the person

                                            3
who filled out the days and times on each receipt. When he testified, Cebulka supported

George’s contention that George had worked for him, but indicated that George only

worked for him a few times during 2003 and did not work for him the number of hours he

claimed. Cebulka also testified that he had never used pay stubs like the ones George had

produced, nor was the handwriting on those stubs his.

      George also claimed that on a day that an image was downloaded he was in court

for a contempt proceeding. However, evidence indicated that, while he was in court at

3:25, he lived close enough to the courthouse to have walked home and used his computer

at 3:47, the time at which the image was downloaded.

      At the beginning of George’s trial testimony, his attorney attempted to bolster

George’s claim that he did not know the password to the “tinylittlepus” account by

introducing a handwritten note George had left on the computer in February of 2003. The

note was addressed to “Nicki and Friends,” and requested that they take cups and dishes

down with them after using the computer and put his screen name and password back into

Yahoo! when they were done as he had struggled to sign on to his account after one of

them had used his computer. The government objected to the evidence as self-serving,

inadmissible hearsay. Defense counsel responded by telling the District Court that the

note was the original, but never asserted a non-hearsay purpose for the note. The District

Court sustained the objection and excluded the evidence.

      At the close of evidence, the prosecutor began his closing statement by defining

voyeur and indicating that George was a voyeur; he then indicated that George’s motive

                                            4
for downloading the images was sexual gratification. Shortly thereafter, the prosecutor

indicated that this was “an excellent investigation,” “one of the finest investigations in a

case like this that I have seen.” There was no objection. The prosecutor then stated that

Agent Kyle, one of the federal investigators, “did an incredible job in this case.” At this

point, George’s attorney objected. The District Court sustained the objection and directed

the prosecutor to refrain from any other personal evaluations of the agents’ work or

testimony. The District Court instructed the jury that the prosecutor’s opinions were not

to be considered when weighing the evidence. George’s counsel requested no further

relief.

          Later in his closing remarks, the prosecutor told the jury that the images presented

at trial were only a representative sample of what was found on George’s computer.

George’s counsel objected on the ground that the government’s statement was based on

facts not in evidence. The District Court overruled the objection, finding that there was

testimony that more photos were uncovered than those presented at trial and that the

photographs presented at trial were a mere sample. After defense counsel stated in his

closing that the prosecution had chosen to show the worst photographs, the prosecutor

stated during his rebuttal that what the jury was shown were not the worst photos. The

District Court sustained the defense’s objection and stated the jury was to decide the case

only on the evidence before it.

          The prosecutor also stated that he “felt sorry” for George’s father and stated that a

defense witness who had testified to George’s character was a “sweet,” “entertaining

                                                5
lady,” and that he wouldn’t have expected anything else out of her but to say that she

knew nothing bad about George. George’s counsel objected. The District Court

sustained the objection and again instructed the jury not to take into consideration the

prosecutor’s personal opinions about the evidence presented. George’s counsel requested

no further relief.

                                             II.

       George raises four points of error on appeal. George first contends that there was

insufficient evidence on which a jury could have found that he was the person who

downloaded the pornographic images. “We apply a particularly deferential standard of

review when deciding whether a jury verdict rests on legally sufficient evidence.” United

States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998). In conducting such a review, we must

view the evidence in the light most favorable to the government and uphold a jury’s

verdict if any rational juror could have found the elements of the crime beyond a

reasonable doubt. Id.; United States v. McBane, 433 F.3d 344, 348 (3d Cir. 2005).

       George contends both that he had an alibi at the time several of the images were

downloaded and that, even if he did not have an alibi, because the computer was in a

common area of his home, the government failed to prove beyond a reasonable doubt that

he was the person who downloaded the images. As to George’s first contention, while

the jury could have chosen to believe his alibis, they were not required to do so. The

government presented witnesses that contradicted George’s testimony as to his

whereabouts. George’s employer testified that the time sheets George presented at trial

                                             6
were not written or signed by him and that George worked considerably fewer hours than

he claimed during his testimony. The government also presented evidence that rebuffed

George’s contention that he was at a contempt hearing when one of the images was

downloaded. Based on this evidence, a reasonable juror could have chosen to disbelieve

George’s alibis. It is the jury’s duty to weigh the evidence and judge the credibility of the

witnesses presented to it. A jury is free to believe or disbelieve the testimony of any

witness that appears at trial. United States v. Boone, 279 F.3d 163, 189 (3d Cir. 2002).

When reviewing credibility determinations by the jury, we must be careful not to usurp its

role. United States v. Flores, 454 F.3d 149, 154 (3d Cir. 2006). Therefore where, as

here, there is substantial evidence upon which a jury could base its conclusion, we will

not disturb that determination. United States v. Iafelice, 978 F.2d 92, 94 (3d Cir. 1992).

       George’s second contention, that because there were other people in the home the

government could not prove he was the person who downloaded the images, is equally

without merit. At trial, the government produced evidence that showed George had

updated his regular user profile shortly before several pornographic images were

downloaded, and that the user profile for “tinylittlepus” included the name “Ms. Al

George” and George’s birthday. In addition, the government produced testimony

indicating that at the time several of the images were downloaded, George was the only

person home. Finally, both Smartwood and Vincent testified that they had not

downloaded any pornographic images. From this evidence, the jury was able to draw the

reasonable inference that George was the person downloading the images onto his

                                             7
computer. United States v. Knox, 32 F.3d 733, 753 (3d Cir. 1994) (“A trier of fact,

however, may consider direct and circumstantial evidence and the reasonable inferences

to be drawn therefrom.”).

                                             III.

       George next contends that the District Court erred in failing to admit the note he

addressed to Vincent and her friends. At trial, the government objected to the note as

hearsay. Defense counsel responded that the note was “the original.” George now

contends that the note was offered for non-hearsay purpose. As the proponent of the

evidence, George’s counsel bore the burden of proving that the evidence was offered for a

non-hearsay purpose. See Lippay v. Christos, 996 F.2d 1490, 1497 (3d Cir. 1993)

(holding that proponent of hearsay bears the burden of proving why it is admissible).

Because George’s counsel did not satisfy this burden and, in fact, did not even suggest

that the evidence would be used for non-hearsay purposes, the District Court did not

abuse its discretion in excluding the evidence. In re Flat Glass Antitrust Litigation, 385

F.3d 350, 372 (3d Cir. 2004) (we review district court’s decision to admit or exclude

based on hearsay for abuse of discretion).

       Even if George’s counsel had appropriately responded to the government’s

objection, the District Court did not abuse its discretion in excluding the evidence. The

inference George wanted to draw from the note, that he did not know the password, was

dependent upon the truth of the statement in the note that he had struggled to get back

online after Vincent or her friends had removed his password. The note was offered for

                                              8
the truth of statements it contained and, therefore, was classic hearsay. See Mahone v.

Lehman, 347 F.3d 1170, 1173 (9th Cir. 2003).

                                             III.

       George also appeals several statements made by the prosecutor during closing

arguments, including that the investigation was well conducted, that the agent in charge

of the investigation had done a very good job, that the prosecution had not shown the

“worst of the worst” of the pornographic images, and that a defense witness would say

nothing other than that George was a good man. In essence, George contends that the

prosecutor vouched for his own witnesses while attacking the credibility of one of

George’s character witnesses and referred to facts not in evidence.

       George is requesting a new trial on appeal; however, it is important to note that

George’s counsel did not move for a mistrial at any point during closing arguments.

While we generally review a district court’s refusal to grant a mistrial for abuse of

discretion, in this particular circumstance there was no ruling on a mistrial because

defense counsel did not request one. While no other court of appeals appears to have

addressed this precise issue, in other contexts where defense counsel objects but fails to

request a mistrial, we review failure to grant a mistrial for plain error only. See United

States v. Richards, 241 F.3d 335, 341 (3d Cir. 2001) (where defendant objected to Jenks

Act violation but did not request mistrial we review for plain error). However, even if we

were to review for abuse of discretion, our conclusion would be the same.



                                              9
       In order for a district court to grant a mistrial for improper vouching by the

prosecution, two criteria must be met. First, the prosecutor must vouch for the credibility

of a government witness, and, second, the assurance must be based on the prosecutor’s

personal knowledge or other facts not in evidence. United States v. Saada, 212 F.3d 210,

225 (3d Cir. 1998). If we find an error, that error is then subject to the harmless error test:

if it is highly probable that the error did not contribute to the judgment, the district court

will be affirmed. United States v. Zehrback, 47 F.3d 1252, 1265 (3d Cir. 1993)

(prosecutor’s statements regarding witness credibility are non-constitutional errors subject

to the highly probable standard); United States v. Gambone, 314 F.3d 163, 177 (3d Cir.

2003). When determining whether a prosecutor’s improper remarks in closing constitute

harmless error we consider “the comments within the context of the entire trial, the effect

of any curative instruction given, and the strength of the evidence against the defendant.”

Id. at 179.

       While the prosecutor’s statements about the work of the agents and the quality of

the investigation constitute vouching, the error caused by such statements was harmless.

As an initial matter, both the prosecutor and the District Court offered curative

statements. Following the prosecutor’s statements, the prosecutor himself told the jury

that they were not to consider his opinions. In addition, the District Court instructed the

jury that “what [the prosecutor] might have expected or not is not material and it’s how

you would determine the facts based on the evidence presented to you, Members of the

Jury.” In addition, viewing the comments in the context of the entire trial suggests that

                                              10
they were harmless. Because the credibility of the agents who conducted the

investigation was not at issue, the prosecutor’s statements about the quality of that

investigation could not have greatly swayed a jury that had already been presented with

substantial evidence of George’s involvement in downloading the pornography. The

same is true of the prosecution’s statements about the credibility of the defense’s witness.

       As was the case in Zehrbach:

       Immediately after the objection, the court gave a specific instruction to
       disregard the prosecutor's comment, an instruction that the court repeated
       just a short time later at the close of the prosecutor's argument. As a general
       matter, the court told the jurors to disregard any personal opinion of counsel
       and to base their decision solely on the evidence. And, in its final
       instructions, the court cautioned the jury members that the arguments of
       counsel are not evidence; that they must not be persuaded by bias,
       prejudice, or sympathy; and that they must not consider any evidence that
       they were earlier instructed to disregard. We believe that this extensive
       cautioning by the court was sufficient to cure the prosecutor's error.

Zehrbach, 47 F.3d at 1267.

       George next contends the prosecutor’s statement regarding what photographs were

shown during trial was error. During closing statements, George’s counsel suggested that

the government had only shown a sample of the images collected and that it had chosen to

show the worst examples. On rebuttal, the prosecutor stated that it was not the “worst of

the worst.” After George’s counsel objected, the District Court stated that “the jury has

got to decide this case on what was shown and what they saw.” Again, based on the




                                             11
substantial evidence presented against George, the curative instruction and the statement

in the context of the entire case, the error was harmless.2

       The other comments George raises on appeal were equally harmless.

                                             IV.

       George’s final contention regarding the scope of cross-examination was not

preserved for appeal and does not meet our plain error review of such issues.

       For the reasons set forth above, we will affirm George’s conviction.




       2
        In its brief, the government suggests that the “invited error” doctrine should
apply. The doctrine “teaches that where a prosecutorial argument has been made in
reasonable response to improper attacks by defense counsel, the unfair prejudice flowing
from the two arguments may balance each other out, thus obviating the need for a new
trial.” United States v. Gambone, 314 F.3d 163, 179 n.11 (3d Cir. 2003) (quoting United
States v. Pungitore, 910 F.2d 1084, 1126 (3d Cir. 1990)). The doctrine does not apply
where defense counsel’s attacks were “proper, ‘vigorous advocacy.’” Id. (quoting United
States v. Molina-Guevara, 96 F.3d 698, 705 (3d Cir. 1996)). We need not address
whether that doctrine would apply to this case because, even if there was error, it was
harmless.

                                             12
