         12-135-cr (L)
         United States v. Kornhauser

                                       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 26th day of March, two thousand thirteen.
 5
 6       PRESENT: JOHN M. WALKER, Jr.,
 7                RICHARD C. WESLEY,
 8                CHRISTOPHER F. DRONEY,
 9                         Circuit Judges.
10
11
12
13
14       UNITED STATES OF AMERICA,
15
16                                        Appellee,
17
18                        -v.-                                       Nos. 12-135-cr (L)
19                                                                        12-1448-cr (Con)
20       JULIUS KORNHAUSER,
21
22                                        Defendant-Appellant.
23
24
25       FOR APPELLANT:                   LAWRENCE GERZOG, New York, NY.
26
27       FOR APPELLEE:                    SARAH E. McCALLUM, Assistant United
28                                        States Attorney (Katherine Polk Failla,
29                                        Assistant United States Attorney, on the
30                                        brief), for Preet Bharara, United States
31                                        Attorney for the Southern District of New
32                                        York, New York, NY.
33
1         Consolidated appeals from the United States District
2    Court for the Southern District of New York (McMahon, J. and
3    Preska, C.J.).
4
5        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

6    AND DECREED that the judgments of the District Courts are

7    AFFIRMED.

8        After a three-day jury trial, Defendant-Appellant

9    Julius Kornhauser was convicted of possessing and receiving

10   child pornography in violation of Title 18, United States

11   Code, Sections 2252A(a)(5)(B) and (a)(2)(A), respectively.

12   After dismissing the first count for possession of child

13   pornography, Kornhauser was sentenced to 168 months’

14   imprisonment for receiving child pornography.   Kornhauser

15   appeals (1) the judgment of conviction and sentence entered

16   on January 5, 2012, by the United States District Court for

17   the Southern District of New York (McMahon, J.) and (2) a

18   judgment entered on March 23, 2012, in the United States

19   District Court for the Southern District of New York

20   (Preska, C.J.) revoking his supervised release - previously

21   imposed for an unrelated tax fraud conviction - on account

22   of the above-referenced conviction.   We assume the parties’

23   familiarity with the facts and procedural history of this

24   case.


                                  2
1                              DISCUSSION

2    A.   The Trial

3         Kornhauser alleges that the district court committed

4    three procedural errors at trial: (1) admitting images of

5    child pornography recovered from his computer for display to

6    the jury; (2) excluding his testimony as to his uncle’s

7    “problem[atic] sexual behavior;” and (3) denying his

8    preferred jury instructions. He also challenges the overall

9    sufficiency of the evidence.   All four lack merit.

10        Kornhauser first contends that, because there could be

11   no serious dispute that the images found on his computer

12   were child pornography, the images’ prejudicial effect

13   outweighed their probative value. In other cases involving

14   child pornography, this Court has permitted admission of

15   similar images even where the defendant stipulated to its

16   existence.   See, e.g., United States v. Polouizzi, 564 F.3d

17   142, 152-153 (2d Cir. 2009).   Kornhauser does not suggest

18   that this case merits a departure from our precedent. The

19   district court here considered whether the probative value

20   of publishing the images to the jury was substantially

21   outweighed by its prejudicial effect and concluded that it

22   was not.


                                    3
1        Second, Kornhauser contends that he should have been

2    permitted to testify about his uncle’s “history of

3    problem[atic] sexual behavior.”     Notably, at trial

4    Kornhauser did not articulate how or whether this testimony

5    would be relevant to child pornography.     Evidence of another

6    party’s guilt “may be excluded where it ... is speculative

7    or remote” relative to the crime with which defendant is

8    charged.     Holmes v. South Carolina, 547 U.S. 319, 327

9    (2006).     Testimony relating to his uncle’s sexual history

10   could have “intensifie[d] the grave risk of jury confusion”

11   and would have added little to the trial.     Wade v. Mantello,

12   333 F.3d 51, 62 (2d Cir. 2003) (internal quotation marks

13   omitted).     The district court was within its discretion in

14   excluding this testimony.

15       Third, Kornhauser asserts that the district court

16   should have used jury instructions he proffered.        A

17   “defendant challenging the district court’s rejection of his

18   proposed jury instructions ‘must show that his proposed

19   charge accurately represented the law in every respect, and

20   that the charge actually given, viewed as a whole,

21   prejudiced him.’” United States v. Archer, 671 F.3d 149, 158

22   (2d Cir. 2011) (quoting United States v. Feliciano, 223 F.3d


                                     4
1    102, 116 (2d Cir. 2000)).   Kornhauser’s proposed

2    instructions focused on the differences between proving that

3    a defendant viewed or received child pornography.    This

4    distinction was accomplished by the district court’s

5    thorough instructions, which twice noted that “the

6    government must prove beyond a reasonable doubt that the

7    defendant. . . was aware that he had received or attempted

8    to receive the visual depiction that constitutes child

9    pornography.”   Kornhauser was not prejudiced by these

10   instructions.

11       Finally, Kornhauser contends that the evidence was

12   insufficient to merit conviction.   This Court has previously

13   ruled that automatic downloading of temporary internet files

14   can constitute “knowing receipt” of child pornography when

15   the defendant searched for child pornography on the internet

16   and demonstrated his awareness of the likelihood that, in so

17   doing, he had downloaded temporary internet files containing

18   child pornography, e.g. by attempting to delete them.

19   United States v. Ramos, 685 F.3d 120, 132 (2d Cir. 2012).

20   Here, Kornhauser viewed at least 700 images of child

21   pornography, created bookmarks for child pornography

22   websites, and installed and regularly ran (including the day


                                   5
1    before the search that led to his arrest) software designed

2    to delete temporary internet files.     In light of this

3    evidence, a rational jury could have concluded that

4    Kornhauser knew he had received child pornography on his

5    computer.     His contention that the evidence was insufficient

6    is therefore without merit.

7    B.     The Sentencing

8           Kornhauser contends, first, that the district court

9    erred in dismissing the possession charge in lieu of the

10   receipt charge.     This argument is without merit; the court’s

11   decision was well-founded, explained in its expansive

12   sentencing statement, and strongly supported by the record.

13          Kornhauser also argues that his sentence was

14   procedurally and substantively unreasonable.     The court

15   correctly calculated the Guidelines range and then explained

16   why, in light of the parties’ arguments in this case, it

17   felt that the Guidelines reflected the most appropriate

18   sentence; there was no procedural error.     See id. at 190-

19   193.

20          Furthermore, the court’s well-reasoned, well-

21   articulated sentencing statement indicated an awareness that

22   the Guidelines range for receipt of child pornography is


                                     6
1    quite severe.   Far from relying exclusively on the

2    Guidelines range, the district court based its ruling on

3    Kornhauser’s past and courtroom behavior and the sentencing

4    memoranda and submissions.   For the reasons articulated in

5    the district court’s sentencing statement, Kornhauser’s

6    sentence was substantively reasonable.

7        We have considered Kornhauser’s remaining arguments and

8    find them to be without merit.    For the reasons stated

9    above, the judgments of the district courts are AFFIRMED.

10
11                                FOR THE COURT:
12                                Catherine O’Hagan Wolfe, Clerk
13
14




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