09-0311-cr
United States v. Herndon

                             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.


        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 7th day of January, two thousand and ten.

Present:       GUIDO CALABRESI,
               ROSEMARY S. POOLER,
                         Circuit Judges.
               LAWRENCE E. KAHN,*
                         District Judge.

_____________________________________________________

BRIAN HERNDON,

                                                       Defendant-Appellant,

                           -v-                                        (09-0311-cr)

UNITED STATES OF AMERICA,


                                                       Appellee.


Appearing for Appellant:         Jonathan J. Einhorn, New Haven, Connecticut

Appearing for Appellee:          Nora R. Dannehy, United States Attorney for the District of
                                 Connecticut (William J. Nardini, Sandra S. Glover, on the brief)



       *
          The Honorable Lawrence E. Kahn, United States District Court for the Northern
District of New York, sitting by designation.
       Appeal from the United States District Court for the District of Connecticut (Dorsey, J.).


     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        On October 21, 2008, a jury convicted appellant Brian Herndon of knowingly possessing
child pornography in violation of 18 U.S.C. §2252A(a)(5)(B). On January 12, 2009, Judge
Dorsey of the District of Connecticut sentenced Herndon to 72 months’ imprisonment, followed
by five years of supervised release and a $100 special assessment. Herndon is presently serving
this sentence. He now appeals his conviction.

        We assume the parties’ familiarity with the underlying facts, procedural history, and
specification of issues for review.

        I. Admission of Evidence
        We review evidentiary rulings for abuse of discretion. United States v. Wexler, 522 F.3d
194, 201-02 (2d Cir. 2008). Herndon argues that the district court abused its discretion first in
allowing the government to display a limited number of child pornography images despite a
stipulation that they were child pornography and then in admitting a non-pornographic image of
Herndon’s neighbor sun-bathing. In both cases, the judge gave a limiting instruction. We
presume that jurors follow their instructions. Shannon v. United States, 512 U.S. 573, 585
(1994).

         Although the government generally has the right to present evidence, Old Chief v. United
States, 519 U.S. 172, 187-88 (1997), under “limited circumstances,” the government may be
required to accept a stipulation instead. United States v. Velazquez, 246 F.3d 204, 211 (2d Cir.
2001). Here, the stipulation was an insufficient substitution for the actual evidence. See United
States v. Polouizzi, 564 F.3d 142, 152-53 (2d Cir. 2009); United States v. Gantzer, 810 F.2d 349,
351 (2d Cir. 1987).

       Herndon was charged with “knowingly possess[ing], or knowingly access[ing]” child
pornography. 18 U.S.C. § 2252A(a)(5)(B). Even if the stipulation satisfied the child
pornography element, the government was still required to prove the knowledge element. The
images allowed the jury to determine how likely it was that Herndon knew the images were child
pornography. The court did not abuse its discretion in determining that this probative value
outweighed any prejudicial affect. See Fed. R. Evid. 403.

       The photograph of Herndon’s neighbor sun-bathing was introduced as part of a batch of
photos showing that files clearly related to Herndon were stored in close physical proximity to
the images of child pornography, and were accessed in close temporal proximity to the access of
child pornography. The evidence was used to show both that Herndon knew about the child
pornography (because of its physical proximity to pictures that were clearly his) and was
accessing it himself (because of the timing of photo access).




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        While we acknowledge that the photo of Herndon’s neighbor was more prejudicial than
the other photos, it was also more probative, as it was viewed only nine minutes before child
pornography images were viewed. The judge did not abuse his discretion in allowing it.


       II. Judicial Questioning
       Herndon next contends that he was deprived of his right to a fair trial because the judge
asked improper questions when Herndon took the stand. Defense counsel did not object to the
judge’s questioning of Herndon. When counsel does not object, we review a claim of improper
questioning only for plain error. See United States v. Salameh, 152 F.3d 88, 128 (2d Cir. 1998).
There was no plain error here.

        The judge may question witnesses as part of the duty to “insure that the issues are clearly
presented to the jury.” United States v. Victoria, 837 F.2d 50, 54 (2d Cir. 1988); see Fed. R.
Evid. 614(b). The majority of the judge’s questions to Herndon were those of clarification.
United States v. Pisani, 773 F.2d 397, 403 (2d Cir. 1985) (questioning may include “clarifying
ambiguities, correcting misstatements, or obtaining information needed to make rulings”).
Questioning is only objectionable if it “betray[s] the court’s belief as to the defendant’s guilt or
innocence,” United States v. DiTommaso, 817 F.2d 201, 221 (2d Cir. 1987), so that “the jurors
[are] impressed with the trial judge’s partiality to one side to the point that this [becomes] a
factor in the determination of the jury.” United States v. Valenti, 60 F.3d 941, 946 (2d Cir. 1995)
(quoting United States v. Guglielmini, 384 F.2d 602, 605 (2d Cir. 1967)).

        Two of the judge’s questions were perhaps more skeptical in tone then necessary: “You
just send them a check, willy nilly. Is that what you’re saying?”; “Well, is there any big difficulty
in looking down a list of charges against a credit card to make sure that you are properly being
charged...?” We do not need to determine if the “judge’s conduct left something to be desired, or
even whether some comments would have been better left unsaid,” but only if the judge’s
conduct was so prejudicial so as to deny Herndon a fair trial. See Pisani, 773 F.2d at 402.

       We conclude that these two questions did not deny Herndon a fair trial.

        III. Jury Poll
        After the verdict, Herndon asked the court to poll the jury. See Fed. R. Crim. P. 31(d).
The judge responded that he had done so by asking if the jurors agreed, and watching them nod
their heads. Herndon then withdrew his objection. Whether this constituted a waiver or a
forfeiture of the challenge, see United States v. Yu-Leung, 51 F.3d 1116, 1122 (2d Cir. 1995),
what the District Court did did not qualify as plain error. See United States v. Miller, 59 F.3d
417, 420 (3d Cir. 1995) (collecting cases holding that Rule 31(d) did not prohibit collective
polling).

        IV. Jury Instructions
        We review challenges to jury instructions de novo, and reverse only if there is error as
well as prejudice. United States v. White, 552 F.3d 240, 246 (2d Cir. 2009). An instruction is
erroneous if it “misleads the jury as to the correct legal standard or does not adequately inform
the jury on the law.” United States v. Pimentel, 346 F.3d 285, 301 (2d Cir. 2003) (citing United

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States v. Walsh, 194 F.3d 37, 52 (2d Cir. 1999)). In making the error determination, the
instruction must be looked at as a whole to determine if it is an “accurate portrayal” of the law.
United States v. Glover, 511 F.3d 340, 345 (2d Cir. 2008) (citations omitted). If we find that the
instruction is erroneous, we then must determine if it was “harmless beyond a reasonable doubt.”
United States v. Brutus, 505 F.3d 80, 88 (2d Cir. 2007) (citations omitted).

        Only one sentence of the jury charge is in dispute. In instructing the jury on how it
should consider Herndon’s testimony, the judge said: “A defendant has a personal interest in the
outcome of the case.” In Brutus, the court found that “an instruction that the defendant’s interest
in the outcome of the case creates a motive to testify falsely impermissibly undermines the
presumption of innocence because it presupposes the defendant’s guilt.” Id. at 87. This error was
“exacerbated” by the court’s reference to the defendant’s “deep personal interest.” Id.

        The charge in this case is much different from that in Brutus. The jury was not instructed
that Herndon had a motive to lie, nor was his personal interest in the case emphasized. It is hard
to see how the added sentence that the defendant had a “personal interest in the case”
undermined the presumption of innocence. We see no value, however, in stating that a defendant
has a personal interest, even if it may not be constitutional error to do so. The charge suggested
in Brutus is ideal. Id. at 88 n. 7.

       As in Brutus, however, this was not a close case. Id. at 89. Any error in the instruction
was harmless.

       Accordingly, the judgment of the district court hereby is AFFIRMED.


                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk

                                                     By:_______________________________




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