              Case: 14-15803    Date Filed: 09/04/2015   Page: 1 of 7


                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 14-15803
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 1:14-cr-20159-BB-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

EDWIDGE JUNIOR DARBOUZE,

                                                             Defendant-Appellant.

                          ________________________

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

                               (September 4, 2015)

Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

      A jury convicted Edwidge Darbouze of all five counts of a superseding

indictment: attempting to receive child pornography, in violation of 18 U.S.C.
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§§ 2252(a)(2) and (b)(1) (Counts 1 and 2); possession of a Compaq desktop

computer containing child pornography, in violation of 18 U.S.C. §§ 2252(a)(4)(B)

and (b)(2) (Count 3); possession of a Polaroid Micro SD Card 32GB containing

child pornography, including a visual depiction of a minor under 12, in violation of

§§ 2252(a)(4)(B) and (b)(2) (Count 4); and possession of a Samsung Galaxy

cellular telephone containing child pornography, including visual depiction of a

minor under 12, in violation of §§ 2252(a)(4)(B) and (b)(2) (Count 5).

      After the District Court sentenced Darbouze to concurrent prison terms of

135 months and supervised release terms of 120 months, he lodged this appeal. He

challenges his convictions on two grounds. First, he contends that the District

Court abused its discretion under Federal Rule of Evidence 403 when it allowed

the Government to introduce into evidence eight screen shots and one video of

child pornography. Second, he asserts that the District Court abused its discretion

in admitting Homeland Security Special Agent Deborah Trajkovic’s testimony that

Evans Darbouze told her that he did not know how to use peer-to-peer file sharing.

We find no abuse of discretion in either instance and accordingly affirm

Darbouze’s convictions.

                                         I.

      Federal Rule of Evidence 403, Excluding Relevant Evidence for Prejudice,

Confusion, Waste of Time, or Other Reasons, states: “The court may exclude


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relevant evidence if its probative value is substantially outweighed by a danger of

one or more of the following: unfair prejudice, confusing the issues, misleading the

jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”

Darbouze argues that the District Court abused its discretion in admitting the eight

screen shots and one video of child pornography because he had previously

stipulated that these items contained images of prepubescent minors. Moreover, he

argues, their prejudicial value was substantial because images of minors engaged

in sexually explicit activity would normally cause a juror to find guilt in order to

hold someone accountable.

      This Court reviews a district court's evidentiary rulings for a clear abuse of

discretion, only reversing if the “resulting error affected the defendant's substantial

rights.” United States v. Tinoco, 304 F.3d 1088, 1119 (2002). “Rule 403 is an

extraordinary remedy which the district court should invoke sparingly, and the

balance should be struck in favor of admissibility.” Id. at 1120 (quotation marks

and alterations omitted). In short, we consider the evidence in a light most

favorable to admission, “maximizing its probative value and minimizing its undue

prejudicial impact.” States v. Dodds, 347 F.3d 893, 897 (11th Cir. 2003).

Photographs of child pornography may be probative to show: 1) the images are

child pornography, 2) the defendant knew they were child pornography, 3) the

defendant intended to collect child pornography, or 4) that the pornography


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crossed state lines. Id. at 899. Absent a stipulation that the defendant knew he was

in possession of child pornography, a district court does not abuse its discretion

when it finds that the risk of injecting emotions into the decision-making process

does not substantially outweigh the probative value of the images. United States v.

Alfaro-Moncada, 607 F.3d 720, 734 (11th Cir. 2010).

      We find no abuse here. Darbouze did not stipulate that he knew the images

were child pornography. Furthermore, the District Court took pains to limit the

prejudicial effect by limiting the number of images shown, and striking from the

venire for cause those jurors who said they could not be fair and impartial after

viewing the images.

                                         II.

      The pornographic evidence the Government introduced at Darbouze’s trial

came from a search of the two-bedroom apartment where he was living with his

parents and his brother, Evans. His parents slept in one bedroom and he slept in

the other. Evans slept on a mattress in the living room. Among other things, the

search disclosed a Compaq desktop computer in the living room with

approximately fourteen videos of child pornography, and a cellphone charging on

the floor beside Darbouze’s bed containing a micro SD card with approximately

fifteen videos of child pornography on it.




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       Agent Trajkovic interviewed Darbouze1 and Evans after she and ten other

agents finished searching the apartment. At trial, on the prosecutor’s direct

examination, she recounted what took place during the search and the subsequent

interviews. On cross-examination, defense counsel turned to Agent Trajkovic’s

interaction with Evans:

       Q. And before you interviewed Edwidge Junior, you interviewed
       Evans Darbouze, okay?

       A. Yes.

       Q. So I want to talk to you about some of the things he told you
       that you didn't necessarily follow up on or investigate, okay?
       Evans Darbouze told you he had never seen child pornography
       in his life, right?

       [PROSECUTOR]: Objection, hearsay.

       [DEFENSE COUNSEL]: It's not for the truth.

       THE COURT: The objection is overruled. I’ll allow it.

       The cross-examination then continued, during which the Agent Trajkovic

said that Evans denied watching child pornography. After defense counsel asked

her if she had considered whether Evans was the one to download child

pornography, Agent Trajkovic responded, “we basically had ruled out Evans

Darbouze because when he was asked about his use of the computer and his

knowledge about P2P network and P2P software—.” At that point, defense

       1
           Darbouze spoke to Agent Trajkovic after receiving an advice of rights and waiving his
right to remain silent.
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counsel interjected, “I’m not asking you about that, Special Agent Trajkovic, and

I’m going to stop you because there’s certain rules. What I’m asking is, you took

him at his word when he told you that statement.” She then responded, “No, I

didn’t.”

       On redirect examination, when the prosecutor asked the agent if Evans

“[w]as . . . asked whether he had ever downloaded child pornography,” defense

counsel said: “Your Honor, as long as this isn’t being introduced for the truth.”

The court stated, “Yes, it’s—,” and the prosecutor clarified, “It’s not.” But after

the prosecutor asked, “did he say whether he had ever used peer-to-peer file

sharing,” defense counsel objected, “hearsay, Sixth Amendment, and beyond the

scope.” The court overruled the objection, and the agent stated: “he said that he

didn’t know how to use peer-to-peer. He didn’t know what file sharing was.”

       Darbouze contends that Evans’s statement to Agent Trajkovic that he “didn’t

know how to use peer-to-peer file sharing” constituted rank hearsay and, moreover,

was “testimonial” and thus inadmissible under the Sixth Amendment’s

Confrontation Clause. 2 We disagree. First, defense counsel opened the door by

intimating that the government’s investigation was unreasonably narrow for not

focusing on Evans. The prosecution was entitled to rehabilitate the witness by

eliciting the reasoning behind her investigative decisions.

       2
          The Sixth Amendment states, in part: “In all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against him.”
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      Second, it is clear from the context that neither side sought to use Evans’

statements for their truth. When the prosecutor objected on hearsay grounds to

defense counsel’s cross-examination of the agent as to what Evans had told her,

defense counsel was quick to say that she was not introducing Evans’s statements

“for the truth.” The court agreed and therefore overruled the prosecutor’s

objection. The court made the same ruling when the prosecutor engaged in similar

questioning on redirect examination, and this ruling was proper for the same

reasons. In both cases, Evans’ statements did not come in for the truth, but to

explain why Agent Trajkovic focused the investigation as she did. Defense

counsel had opened the door on cross-examination and effectively invited the

prosecutor to ask the question at issue.

      In sum, because the challenged answer was not introduced for the truth of its

contents, Darbouze’s hearsay and Confrontation Clause challenges fail. See Fed.

R. Evid. 801(c); Crawford v. Washington, 541 U.S. 36, 59 n.9, 124 S. Ct. 1354,

1369 n.9, 158 L. Ed. 2d 177 (2004) (“The Clause . . . does not bar the use of

testimonial statements for purposes other than establishing the truth of the matter

asserted.”).

      AFFIRMED.




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