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                                                                    [DO NOT PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 15-10969
                              ________________________

                      D.C. Docket No. 2:13-cr-00096-SPC-CM-1



UNITED STATES OF AMERICA,

                                                        Plaintiff - Appellee,

versus

BRIAN ROBERT HARLING,

                                                        Defendant - Appellant.

                              ________________________

                     Appeal from the United States District Court
                         for the Middle District of Florida
                           ________________________

                                    (August 28, 2017)

Before TJOFLAT and ROSENBAUM, Circuit Judges, and REEVES, * District
Judge.

PER CURIAM:

         *
       The Honorable Danny C. Reeves, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
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      Defendant-Appellant Brian Robert Harling appeals his conviction and

sentence for knowingly possessing materials depicting minors engaged in sexually

explicit activity, in violation of 18 U.S.C. §§ 2252(a)(4)(B) and (b)(2). He makes

four arguments on appeal. First, he argues that the district court erred in denying

his motion to suppress five USB drives after the drives were seized and searched

without a warrant. Second, he asserts that the district court should have granted his

motion for judgment of acquittal because the government failed to prove that he

knowingly possessed the USB drives, that he knew that the visual depictions were

of minors engaged in sexually explicit conduct, or that he actually appeared in any

of the videos. Third, he contends that the district court abused its discretion by

refusing to give a “mere presence” jury instruction. And finally, Harling argues

that his sentence of 240 months’ imprisonment followed by a lifetime of

supervised release is substantively unreasonable. After careful consideration, and

with the benefit of oral argument, we affirm Harling’s conviction and sentence.

                                                I.

   A. Facts1

      In 2013, Nicole Dunwody2 saw a listing on Craigslist advertising a

condominium unit for rent in Fort Myers, Florida. Harling occupied the unit at the

time but was looking to rent it out because he had just purchased a new home.


      1
          These facts are taken primarily from the hearing on Harling’s motion to suppress.
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       Nicole decided to rent the unit from Harling and coordinated with him to

move in her belongings. Soon after she moved in, Nicole bumped the door frame

of a closet in the residence and heard something fall to the floor. She looked down

and saw that three USB drives had fallen from the top of the door frame inside the

closet.

       Nicole took the three USB drives to her mother Ada Dunwody’s house.

There, Ada plugged the first of three drives into her computer, and large thumbnail

images loaded onto the screen. She and Nicole scrolled through the contents of the

first drive and saw images of what they described as small children in unnatural,

sexually suggestive poses engaging in sexually explicit conduct with adults.

       After viewing at least thirty thumbnail images, Nicole decided she had seen

enough and called the police. Meanwhile, Ada continued to view the contents of

the two remaining USB drives. After scrolling through the contents of the second

drive, which Ada also described as containing images and videos of young children

in unnatural, sexually explicit poses, Ada estimated that she had seen well over 100

images and videos. The third drive contained more videos, but it also had a file

type that Ada did not recognize. Afraid of inadvertently downloading something

unknown onto her computer, Ada removed the third USB drive from her computer



       2
          The fact in this case involve more than one person with the last name “Dunwody.” For
clarity, we refer to each by her first name.
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and placed all three USB drives in a plastic bag for delivery to the police. She did

not really probe into the contents of the third USB drive.

      Nicole and Ada agreed to meet Fort Myers Police Officer Domonic Zammit

at Nicole’s condominium. When Officer Zammit arrived, Nicole informed him

that Harling owned the condominium unit and had resided in it before she did, a

fact that Officer Zammit confirmed when he called and spoke with Harling over

the phone. Nicole also gave Officer Zammit the plastic bag containing the three

USB thumb drives and explained that she and her mother had seen, between the

two of them, explicit images and videos of children engaged in sexual acts. Nicole

then showed Officer Zammit the closet from which the three USB drives had

fallen. When he looked up into the closet, Officer Zammit discovered two more

USB thumb drives in the same location at the top of the door frame inside the

closet.

      Officer Zammit returned to the Fort Myers Police Department with the five

USB drives and along with his supervisor, Sergeant Doro, reviewed them. They

opened one image file and one video file on each of the five drives to confirm that

all five contained child pornography. Officer Zammit then submitted the five

drives into evidence, ending his involvement in the investigation.

      Soon after that, Detective Meeks, a member of the computer-crimes unit,

retrieved the five USB drives from the evidence custodian and, after reviewing


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Officer Zammit’s report, conducted a limited forensic preview to confirm the

presence of child pornography on the drives and to determine the owner of them.

He confirmed the presence of images and videos of child pornography on all five

drives, including a series of images of a particular minor child being sexually

abused by a particular adult male on the first USB drive. He also noted a file on

the fourth drive that contained Harling’s business card.

      Detective Meeks observed that many of the images had file names in a

sequential numerical order, which indicated to him that the images were

homemade—rather than downloaded from the internet—and taken with a single

camera. Because he knew from Officer Zammit’s report that Harling was the

previous resident of the condominium unit, Detective Meeks obtained Harling’s

driver’s license photograph and confirmed that Harling was the adult in the series

of pornographic images involving the particular minor child.

      He then contacted the Department of Homeland Security (“DHS”) for

assistance in locating Harling. DHS agents accessed Harling’s public Facebook

page and found profile pictures of Harling that matched the adult male observed in

the photographs contained on the USB drives, providing further confirmation that

Harling was the adult male featured in the pornographic images on the USB drives.

Detective Meeks then met with Nicole and Ada, who shared with him the specific

details of what they had observed on the USB drives.


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       Law-enforcement officers eventually learned Harling’s address and visited

him at his home on July 11, 2013. After being advised of his rights, Harling

agreed to speak with the agents. They showed him multiple images that they had

downloaded from Facebook, of a young boy whom Harling identified as his step-

grandson. That same boy was the minor child who appeared in the series of

homemade pornographic images discovered on the USB drives. 3

       Later that same day, Detective Meeks prepared an affidavit for a search

warrant to conduct a complete forensic examination of all five USB drives. His

affidavit included the detailed descriptions conveyed to him by both Nicole and

Ada regarding exactly what they had seen on the USB drives. After obtaining the

warrant, Detective Meeks conducted a more thorough forensic examination of all

five USB drives and found that they contained hundreds of images of child

pornography and over forty videos, including hundreds of images of Harling

sexually abusing his step-grandson.

       On the basis of these findings, authorities applied for and were granted a

second warrant to search Harling’s residence for additional computer equipment

and data, which they executed on July 12, 2013. Inside his home, authorities

observed furniture, bedding, and other household décor that matched the furniture,


       3
        Harling’s adult son confirmed that the young boy from the pictures on the USB drives
was Harling’s step-grandson. He also confirmed that another minor child observed in the images
on the USB drives, a young girl, was Harling’s step-granddaughter.
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bedding, and household décor that appeared in several photographs recovered from

the USB drives. Those observations led authorities to obtain a third search warrant

that same day to search Harling’s residence for specific items matching items

previously seen in the images and videos stored on the USB drives.

   B. Procedural History

      A federal grand jury returned an indictment charging Harling with one count

of knowingly possessing child pornography, in violation of 18 U.S.C. §§

2252(a)(4)(B) and (b)(2). Harling moved to suppress the contents of the five USB

thumb drives, as well as any evidence gathered from his residence. The district

court denied Harling’s motion to suppress.

      Harling proceeded to trial. At the close of the Government’s case, he moved

for a judgment of acquittal, arguing that the evidence presented failed to establish

that he possessed the USB drives. Harling also renewed his objections to the

district court’s denial of his motion to suppress. The district court denied his

motions and his request for a “mere presence” jury instruction.”

      The jury found Harling guilty after a two-day trial.         The Presentence

Investigation Report (“PSI”) prepared before Harling’s sentencing hearing

calculated an adjusted offense level of 44, which was treated as an offense level 43

pursuant to U.S.S.G. Ch. 5, Pt. A, comment n. 2. Harling did not have any prior

criminal convictions and was assigned a criminal-history category of I.         The


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resulting guideline sentence was originally life in prison.      But because the

maximum term of imprisonment for a conviction under 18 U.S.C. §§

2252(a)(4)(B) and (b)(2) is 20 years, Harling’s guideline term of imprisonment

was 240 months, with a supervised-release term of between five years and life.

      Prior to his sentencing hearing, Harling filed a sentencing memorandum

wherein he requested a sentence of no more than twenty years.    At the sentencing

hearing, neither the government nor Harling made any objections to the PSI. After

considering the Sentencing Guidelines and the factors identified in 18 U.S.C. §

3553(a), the district court sentenced Harling to 240 months’ imprisonment,

followed by a lifetime term of supervised release. Harling raised no objections to

his sentence. He now appeals his conviction and sentence.

                                        II.

   A. Motion to Suppress

      On appeal, Harling argues that his rights under the Fourth Amendment were

violated when law-enforcement officers seized and then searched his personal

property without first obtaining a warrant. He makes the following arguments in

support of his position: (1) he did not abandon the five USB drives, so he retained

a reasonable expectation of privacy in them; (2) no exigent circumstances existed

necessitating a search of the USB drives without first obtaining a search warrant;

(3) the searches performed by law-enforcement officers before obtaining a search


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warrant exceeded the scope of the private-party searches conducted by Nicole and

Ada; and (4) the affidavits used to obtain the search warrants included false and

misleading statements, rendering them void.

      A district court’s ruling on a motion to suppress presents a mixed question

of fact and law. United States v. Garcia-Bercovich, 582 F.3d 1234, 1238 (11th

Cir. 2009). We review a district court’s factual findings for clear error and its

application of the law to those factual findings de novo. Id. In applying the law to

the facts, we construe the facts in the light most favorable to the party that

prevailed in the district court—in this case, the Government. See United States v.

Mathis, 767 F.3d 1264, 1274–75 (11th Cir. 2014); United States v. Laist, 702 F.3d

608, 612 (11th Cir. 2012).

      Courts generally prohibit the government from introducing at trial evidence

gathered as a result of a search or seizure that violated the Fourth Amendment. Pa.

Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 362 (1998).           But the Fourth

Amendment applies to only governmental action; “it is wholly inapplicable to a

search or seizure, even an unreasonable one, effected by a private individual not

acting as the agent of the Government or with the participation or knowledge of

any governmental official.” United States v. Jacobsen, 466 U.S. 109, 113 (1984)

(quotation omitted). Once a private individual, acting of her own accord, conducts

a search—even one that frustrates a defendant’s reasonable expectation of


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privacy—the Fourth Amendment does not forbid the government from replicating

the search, as long as government officials constrain their search to the parameters

of the search conducted by the private individual. United States v. Young, 350

F.3d 1302, 1306–07 (11th Cir. 2003); Jacobsen, 466 U.S. at 115. As a result, “a

warrantless law-enforcement search conducted after a private search violates the

Fourth Amendment only to the extent to which it is broader than the scope of the

previously occurring private search.” United States v. Sparks, 806 F.3d 1323, 1334

(11th Cir. 2015), cert. denied, 136 S. Ct. 2009 (2016), cert. denied sub nom.

Johnson v. United States, 137 S. Ct. 34 (2016).

      Here, Harling contests the search of all five USB drives—the three

discovered and viewed by Nicole and Ada and the two later discovered in the same

location by Officer Zammit and viewed by law-enforcement officers in the first

instance. As an initial matter, we agree that Harling did not abandon the USB

drives.

      But Nicole and Ada are private citizens who acted of their own accord when

they viewed the contents of the first two USB drives.                 Therefore, law

enforcement’s subsequent search of the first and second USB drives, after listening

to Nicole and Ada describe in detail what they had observed, was not violative of

the Fourth Amendment since it did not meaningfully exceed the scope of Ada’s

search. See Jacobsen, 466 U.S. at 119.        The officers replicated a search already


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conducted by private citizens who acted independently, observed what they

thought to be child pornography, and shared their concerns with the officers, who

then confirmed that the drives contained what Nicole and Ada reported.

      With regard to USB drives three, four, and five, the issue is more

complicated because it is unclear whether Ada actually observed any content on

the third drive and uncontested that Nicole and Ada did not view any content on

the fourth and fifth drives. While law enforcement’s search of these drives without

a warrant was a per se violation of the Fourth Amendment, the evidence obtained

is nonetheless admissible under the independent-source doctrine. In the event that

the government violates the Fourth Amendment in conducting an illegal search,

“[t]he independent source doctrine allows admission of evidence that has been

discovered by means wholly independent of any constitutional violation.” United

States v. Barron-Soto, 820 F.3d 409, 415 (11th Cir. 2016) (quoting Nix v. Williams,

467 U.S. 431, 443 (1984)).

      We apply a two-part test to determine whether the independent source

doctrine operates to render evidence admissible regardless of whether the initial

search violated the Fourth Amendment. United States v. Noriega, 676 F.3d 1252,

1260 (11th Cir. 2012).

            The first thing we do is excise from the search warrant
            affidavit any information gained during the arguably
            illegal initial entry and determine whether the remaining
            information is enough to support a probable cause
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             finding. If the remaining or nonexcised information is
             enough to support a probable cause finding, the second
             thing we do is determine whether the officer's decision to
             seek the warrant was “prompted by” what he had seen
             during the arguably illegal entry. To determine whether
             an officer's decision to seek a warrant is prompted by
             what he saw during the initial entry, courts ask whether
             the officer would have sought the warrant even if he had
             not entered. If the officer would have done so, his
             decision to seek the search warrant is supported by an
             “independent source,” and the evidence seized under the
             warrant is admissible regardless of whether the initial
             entry violated the Fourth Amendment.

Id. at 1260-61 (internal citations omitted).

      The first question we ask then is whether, excluding any information gained

from Officer Zammit’s report and Detective Meeks’s own preliminary forensic

examination of the USB drives, probable cause still existed to support a search

warrant for all five USB drives. Detective Meeks testified, and his affidavit in

support of the first search warrant reflects, that Nicole’s and Ada’s observations

regarding the contents of the first two USB drives formed “much of the basis” of

his affidavit.   These observations included information regarding specific file

names, the approximate ages of the children involved, the unnatural and sexually

explicit nature of the photographs and videos, and the presence of a specific adult

male sexually assaulting a young child in at least one video. This information

alone, which we have already found to be properly gleaned as a result of the




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private-party search doctrine, certainly suffices to support a finding of probable

cause.

         So we move on to the second step and ask whether Detective Meeks would

have sought the search warrant even if he had not first read Officer Zammit’s

report and previewed all five USB drives himself. Noriega, 676 F.3d at 1261. The

district court concluded in its order denying Harling’s motion to suppress that

Detective Meeks would have. Based on just the descriptions provided by Nicole

and Ada, the district court concluded that a fair probability existed that contraband

or evidence of a crime would be found on all five USB drives. Officers probed the

contents of the drives before obtaining the search warrant but only to confirm the

veracity of what Nicole and Ada had reported seeing, not to independently obtain

sufficient probable cause for a search warrant. Because the private-party search

conducted by Nicole and Ada provided an independent source for the probable

cause necessary to issue a search warrant for all five USB drives, the Government

has successfully demonstrated that the evidence would have been ultimately

obtained independent of any initial violation of the Fourth Amendment. Thus,

Harling’s motion to suppress was properly denied.4


         4
          Because we find that the affidavits used to obtain the search warrants included
information lawfully obtained by Nicole and Ada, as private citizens, Harling’s arguments
regarding the validity of the search warrants are meritless. Additionally, we need not address
Harling’s argument concerning exigent circumstances because the issues raised are fully
resolved through the application of the private-party search doctrine and the independent-source
doctrine.
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   B. Judgment of Acquittal

      Next, Harling asserts that the district court erred in denying his motion for

judgment of acquittal as to Count One—possession of materials containing child

pornography—because the government failed to prove that he knowingly

possessed child pornography, that he knew that at least one of the performers in

such visual depictions was a minor, or that he knew that the visual depictions were

of minors engaged in sexually explicit conduct. In Harling’s view, the government

failed to meet its burden to show that he owned the USB drives or that he was the

male in the images and videos.

      We review de novo the district court’s denial of a motion for judgment of

acquittal, viewing the facts and drawing all inferences in the light most favorable

to the government. United States v. Descent, 292 F.3d 703, 706 (11th Cir. 2002).

To uphold the denial of a motion for judgment of acquittal, “we need only

determine that a reasonable fact-finder could conclude that the evidence

established the defendant’s guilt beyond a reasonable doubt.” United States v.

Hansen, 262 F.3d 1217, 1236 (11th Cir. 2001) (quotation marks omitted).

      Section 2252(a)(4)(B) makes it a crime to “knowingly possess[ ] … 1 or

more books, magazines, periodicals, films, video tapes, or other matter which

contain any visual depiction” that has traveled through interstate commerce if “the

producing of such visual depiction involves the use of a minor engaging in


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sexually explicit conduct; and such visual depiction is of such conduct.” 18 U.S.C.

§ 2252(a)(4)(B). An act is done “knowingly” when it is performed voluntarily and

intentionally, not because of mistake or accident. United States v. Woodruff, 296

F.3d 1041, 1047 (11th Cir. 2002). In the context of § 2252, the term “knowingly”

refers to the defendant’s knowledge of the fact that the material contains child

pornography. See United States v. X-Citement Video, Inc., 513 U.S. 64, 78 (1994).

      Upon review of the record, we conclude that the evidence was more than

sufficient to support Harling’s conviction. The evidence showed that Harling, the

owner and previous occupant of the condominium unit, possessed the USB drives

found in the closet. Harling also owned the same type of camera used to take the

photographs discovered on the USB drives, was himself pictured in both the

photographs and films engaging in sexually explicit conduct with minors, and even

identified one of the young boys from the films on the USB drives as a boy he

knew—a boy investigators later learned to be Harling’s step-grandson.

Additionally, furniture and architectural details from Harling’s home matched the

furniture and architectural details depicted in the photographs and videos found on

the USB drives, and Harling’s business card was found on the fourth USB drive.

      From this evidence alone, a reasonable factfinder easily could have found

Harling guilty of violating the statutes charged in Count One of the indictment. In




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short, the district court did not err in denying Harling’s motion for judgment of

acquittal.

   C. “Mere Presence” Jury Instruction

      Harling also contends that the district court erred when it failed to give the

jury a “mere presence” jury instruction in line with his defense that his mere

presence in the condominium unit at some previous point in time did not

necessarily mean that he was the individual who knowingly possessed the USB

drives found in the closet. We review for an abuse of discretion a properly

preserved claim that the district court omitted a jury instruction. United States v.

Morris, 20 F.3d 1111, 1114 (11th Cir. 1994).

      A district court abuses its discretion in failing to give a requested instruction

if “(1) the requested instruction was a correct statement of the law, (2) its subject

matter was not substantially covered by the charge actually given, and (3) its

subject matter dealt with an issue in the trial court that was so important that the

failure to give it seriously impaired the defendant’s ability to defend himself.”

United States v. Paradies, 98 F.3d 1266, 1286 (11th Cir. 1996). A theory-of-

defense charge is not warranted if “the charge given adequately covers the

substance of the requested instruction.” United States v. Ndiaye, 434 F.3d 1270,

1293 (11th Cir. 2006).




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      We find no abuse of discretion in the district court’s refusal to give Harling’s

requested mere-presence instruction. We first note that Harling never actually

provided the district court with a proposed “mere presence” instruction; he merely

requested that the district court provide one.

      In any case, the instructions given by the district court substantially covered

Harling’s request. The court instructed the jury that to convict Harling, it had to

find that he “knowingly possessed one or more matters containing visual

depictions” of a minor engaging in sexually explicit conduct.      The court defined

“knowingly” as meaning the act “was done voluntarily and intentionally and not

because of a mistake or by accident.”

      Having received these instructions, “the jury could not have attributed

possession to [Harling] through his mere presence alone, because mere presence

would not establish voluntary [and] intentional possession.”        United States v.

Woodard, 531 F.3d 1352, 1365 (11th Cir. 2008). Under the given instructions, the

jury could return a guilty verdict only if it found that Harling voluntarily and

intentionally possessed the USB drives; the instructions did not allow a finding of

guilt based on Harling’s mere presence in the condominium where the USB drives

were found.

   D. Sentencing




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       Finally, Harling argues that his sentence of 240 months’ imprisonment,

followed by a term of lifetime supervised release is substantively unreasonable

because the sentence is greater than necessary to protect the public and further the

goals of sentencing. We disagree.

       The reasonableness of a sentence depends upon the district court’s

application of the factors outlined in 18 U.S.C. § 3553(a).5 United States v. Talley,

431 F.3d 784, 788 (11th Cir. 2005). We review the substantive reasonableness of a

sentence for an abuse of discretion, vacating the sentence only if we “are left with

the definite and firm conviction that the district court committed a clear error of

judgment in weighing the § 3553(a) factors by arriving at a sentence that lies

outside the range of reasonable sentences dictated by the facts of the case.” United

States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc). The party who

challenges the sentence bears the burden of demonstrating that the sentence is

       5
         The relevant § 3553(a) factors include the following:
       (1) the nature and circumstances of the offense and the history and characteristics
       of the defendant;
       (2) the need for the sentence imposed—
       (A) to reflect the seriousness of the offense, to promote respect for the law, and to
       provide just punishment for the offense;
               (B) to afford adequate deterrence to criminal conduct;
               (C) to protect the public from further crimes of the defendant; and
               (D) to provide the defendant with needed . . . treatment;
       (3) the kinds of sentences available;
       (4) the kinds of sentence and the sentencing range . . . ;
       (5) any pertinent policy statement . . . ;
       (6) the need to avoid unwarranted sentence disparities among defendants with
       similar records who have been found guilty of similar conduct; and
       (7) the need to provide restitution to any victims of the offense.
18 U.S.C. § 3553(a).
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unreasonable in light of the record and the § 3553(a) factors. United States v.

Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).

      Here, the government asserts first that Harling’s arguments with regard to

his term of supervised release should be reviewed for plain error only since Harling

failed to challenge the district court’s imposition of a term of lifetime supervised

release at sentencing, and second, that this Court should decline to consider his

sentencing arguments under the doctrine of invited error because Harling invited

the district court to impose a sentence up to and including the statutory maximum.

But we need not determine whether a heightened standard of review applies here

because Harling’s arguments fail under even an abuse-of-discretion standard of

review.

      At sentencing, the district court specifically recited the § 3553(a) factors and

then concluded that the guideline range was reflective of the “abhorre[nt]” conduct

at issue. Noting the seriousness of the offense, the fact that Harling took advantage

of children in his care, and Harling’s failure to accept responsibility, the district

court found a sentence at the statutory maximum to be appropriate. It is clear from

the record that the district court considered and applied the § 3553(a) factors and

weighed them appropriately. See United States v. Amedeo, 487 F.3d 823, 832

(11th Cir. 2007) (finding that the weight given to any § 3553(a) factor is within the

sound discretion of the district court).        Harling’s sentence was certainly


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substantively reasonable. And even if we did not agree with the district court’s

determination of the weight given to each factor, we could not substitute our

judgment for that of the district court when the district court acted within the

bounds of its discretion. Id.; see also Gall v. United States, 552 U.S. 38, 51 (2007)

(“The fact that [we] might reasonably have concluded that a different sentence was

appropriate is insufficient to justify reversal of the district court.”).

                                                 III.

       For these reasons, we affirm Harling’s conviction and his sentence of 240

months’ imprisonment, followed by a lifetime term of supervised release.

       AFFIRMED.




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