     14-1898-cr
     United States v. Killingbeck

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 5th day of October, two thousand fifteen.
 5
 6       PRESENT: RALPH K. WINTER,
 7                DENNIS JACOBS,
 8                PIERRE N. LEVAL,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               14-1898-cr
16
17       JOHN C. KILLINGBECK,
18                Defendant-Appellant.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        John C. Killingbeck, pro se,
22                                             Fort Dix, New Jersey.
23
24       FOR APPELLEE:                         Lisa M. Fletcher and Steven D.
25                                             Clymer, for Richard S.
26                                             Hartunian, United States
27                                             Attorney for the Northern


                                                  1
 1                              District of New York, Syracuse,
 2                              New York.
 3
 4        Appeal from a judgment of the United States District
 5   Court for the Northern District of New York (Hurd, J.).
 6
 7        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 8   AND DECREED that the judgment of the district court be
 9   AFFIRMED.
10
11        John C. Killingbeck, pro se, appeals from the judgment
12   of the United States District Court for the Northern
13   District of New York (Hurd, J.), convicting him of receipt
14   and possession of child pornography, see 18 U.S.C.
15   § 2252A(a)(2)(A), (a)(5)(B), and sentencing him principally
16   to a 240-month term of incarceration. We assume the
17   parties’ familiarity with the underlying facts, the
18   procedural history, and the issues presented for review.
19
20        1. Killingbeck argues that his conduct was protected
21   by the First Amendment because child pornography is
22   constitutionally protected speech. We review de novo a
23   First Amendment challenge to a criminal conviction. United
24   States v. Caronia, 703 F.3d 149, 160 (2d Cir. 2012). “[I]t
25   is settled law that child pornography is not protected
26   expressive speech under the First Amendment.” United States
27   v. Hotaling, 634 F.3d 725, 728 (2d Cir. 2011); see also New
28   York v. Ferber, 458 U.S. 747, 756 (1982). The fact that
29   Killingbeck obtained the pornographic material through
30   “Usenet”--a precursor to the modern internet--does not
31   affect the analysis. None of the statutory and regulatory
32   provisions cited by Killingbeck stands for the proposition
33   that the receipt of child pornography through Usenet is
34   immunized from criminal prosecution.
35
36        2. Killingbeck argues that Usenet is not a means of
37   commerce and that the government therefore failed to prove
38   the interstate commerce element of 18 U.S.C.
39   § 2252A(a)(2)(A) and § 2252A(a)(5)(B). The government
40   proved the interstate commerce element by adducing evidence
41   that the hard drives on which Killingbeck stored the
42   pornography were manufactured abroad, in Thailand and
43   Singapore. “[T]he act of using computer equipment
44   manufactured outside the United States to produce child
45   pornography meets the jurisdictional requirement of
46   § 2252A(a)(5)(B).” United States v. Ramos, 685 F.3d 120,
47   133 (2d Cir. 2012).

                                  2
 1        3. Killingbeck argues that his Fourth Amendment rights
 2   were violated because the investigating police officers
 3   lacked probable cause to interview him and to execute a
 4   search of his computers. The Fourth Amendment is not
 5   implicated simply because a police officer interviews an
 6   individual; “[r]ather, a seizure takes place only when the
 7   officer, by means of physical force or show of authority,
 8   has in some way restrained the liberty of a citizen.”
 9   United States v. Springer, 946 F.2d 1012, 1016 (2d Cir.
10   1991) (citation, internal quotation marks, and brackets
11   omitted). There is no evidence that Killingbeck was seized
12   during his interview; his subjective belief to the contrary
13   is irrelevant. Id. The search warrant was supported by
14   probable cause: during the (recorded) interview with the
15   officers, Killingbeck admitted that he used his computer to
16   access pornographic images involving children between the
17   ages of five and eight, and had done so as recently as a
18   month prior to the interview.
19
20        4. Killingbeck argues that his Sixth Amendment right
21   to a public trial was violated because the district court
22   granted the government’s request not to display trial
23   evidence showing images of child pornography on the monitors
24   that were visible to courtroom spectators. (Those images
25   were displayed on monitors visible only to the court,
26   testifying witnesses, counsel, and the jury.) Killingbeck
27   (who was pro se at trial) did not object to the district
28   court’s ruling.
29
30        The Sixth Amendment creates a “presumption of openness”
31   in criminal trials. United States v. Gupta, 699 F.3d 682,
32   687 (2d Cir. 2011) (internal quotation marks omitted). “The
33   public trial guarantee is not absolute, however.” Id.
34   Court proceedings may be partially or wholly closed to the
35   public if doing so would serve some overriding interest.
36
37        A trial court’s decision to wholly or partially exclude
38   the public from a proceeding is not subject to harmless
39   error review, but may be subject to plain error review.
40   United States v. Gomez, 705 F.3d 68, 74 (2d Cir. 2013).
41   Because Killingbeck did not object to the district court’s
42   decision below, we review the court’s decision for plain
43   error.
44
45        We need not decide whether the district court erred
46   because even if it did, that error was not “plain” and did
47   not seriously affect “the fairness, integrity, or public

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 1   reputation” of the trial. Id. at 76. Even assuming that
 2   restricting the display of trial exhibits to the courtroom
 3   audience constitutes a partial “closure” for Sixth Amendment
 4   purposes, the government presents substantial reasons for
 5   doing so–limiting the continuing harm to victims of child
 6   pornography. Cf. Osborne v. Ohio, 495 U.S. 103, 111 (1990)
 7   (“The pornography’s continued existence causes the child
 8   victims continuing harm by haunting the children in years to
 9   come.”). Moreover the restriction was narrow: the public
10   was not excluded from the courtroom and could see the
11   witnesses and hear their testimony. Cf. Gupta, 699 F.3d at
12   687 (exclusion of public from courtroom during entire voir
13   dire violated the Sixth Amendment). A trivial closure, even
14   if intentional and unjustified, may not rise to the level of
15   a Sixth Amendment violation. Carson v. Fischer, 421 F.3d
16   83, 92 (2d Cir. 2005) (“Even an unjustified closure may, in
17   some circumstances, be so trivial as not to implicate the
18   right to a public trial.”). On this record, we are
19   satisfied that any error by the district court was not plain
20   and did not seriously affect the fairness, integrity, or
21   public reputation of the trial.
22
23        For the foregoing reasons, and finding no merit in
24   Killingbeck’s other arguments, we hereby AFFIRM the judgment
25   of the district court.
26
27                              FOR THE COURT:
28                              CATHERINE O’HAGAN WOLFE, CLERK
29




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