                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0701n.06

                                          No. 12-5441
                                                                                      FILED
                          UNITED STATES COURT OF APPEALS                         Jul 30, 2013
                               FOR THE SIXTH CIRCUIT                        DEBORAH S. HUNT, Clerk

UNITED STATES OF AMERICA,                              )
                                                       )
       Plaintiff-Appellee,                             )
                                                       )
v.                                                     )
                                                       )   ON APPEAL FROM THE
JAMES L. HOLLOWAY,                                     )   UNITED STATES DISTRICT
                                                       )   COURT FOR THE WESTERN
       Defendant-Appellant.                            )   DISTRICT OF KENTUCKY
                                                       )



       BEFORE: BOGGS and SILER, Circuit Judges; DOWD, District Judge.*


       PER CURIAM. James L. Holloway, a federal prisoner, appeals through counsel the

judgment of conviction following his criminal trial.

       Holloway’s trouble with the law began when he discussed child pornography in a computer

chat room with an undercover agent for the Naval Criminal Investigative Service, then e-mailed the

agent child pornography. After discovering Holloway’s location in Louisville, Kentucky, the agent

shared her discovery with the Kentucky authorities, who eventually turned it over to the federal

authorities. A search warrant was executed at Holloway’s home and laptop computers, storage

drives, and cameras were seized. Further inspection uncovered child pornography on one of his

computers and two of his storage drives. He was charged with transporting and possessing child



       *
        The Honorable David D. Dowd, United States District Judge for the Northern District of
Ohio, sitting by designation.
No. 12-5441
United States v. Holloway

pornography. He was convicted following a jury trial. Although the guidelines range for his

sentence was 210 to 262 months of imprisonment, he was sentenced to only 96 months. He

appealed, and the government cross-appealed, but the government voluntarily dismissed the cross-

appeal. We denied Holloway’s motion for release pending this appeal. In his brief, Holloway raises

three issues: 1) the district court erred in denying his motion to suppress evidence obtained in

violation of the Posse Comitatus Act (PCA), 18 U.S.C. § 1385; 2) the district court erred in

admitting other acts evidence under Federal Rule of Evidence 404(b)(1); and 3) the district court

erred in rejecting his proposed jury instruction.

       The PCA proscribes military participation in civilian law enforcement. In order to violate

the PCA, the military must permeate civil law enforcement; it is not a violation where the military

does not participate in the arrest, search, or seizure of evidence. Hayes v. Hawes, 921 F.2d 100, 103-

04 (7th Cir. 1990). In this case, after the Navy agent turned over the information she had on

Holloway to the civil authorities, the military was not involved in the subsequent search of his home,

the seizure of evidence, or his arrest. Moreover, no federal court has held that suppression is an

appropriate remedy for any violation of the PCA. Gilbert v. United States, 165 F.3d 470, 474 n.2

(6th Cir. 1999). The statute itself provides only for a fine or imprisonment for its violation.

18 U.S.C. § 1385. Accordingly, we find no error in the district court’s denial of Holloway’s motion

to suppress the evidence on this basis.

       Holloway argues that the district court erred in admitting evidence that he had a file on one

of his laptops explaining how to clear an internet cache, erasing evidence of the websites visited.

He contends that this was evidence intended to prove his character, in violation of Fed. R.

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No. 12-5441
United States v. Holloway

Evid. 404(b)(1). However, background evidence concerning the results of the search of Holloway’s

computer does not fall under Rule 404(b). See United States v. Marrero, 651 F.3d 453, 471 (6th Cir.

2011). Moreover, any error was harmless. See United States v. Allen, 619 F.3d 518, 523 (6th Cir.

2010). Holloway’s argument on this point is farfetched. He states that the jury could have used the

statement concerning the file on his laptop to infer that he erased child pornography from his

cameras. Even if this somehow followed, it would not change the outcome of the case, as the

government did not need to prove that Holloway erased the memory cards on his cameras, but only

that he possessed and transported child pornography. Therefore, we find no abuse of the broad

discretion accorded the district court in admitting this statement. See United States v. Yu Qin, 688

F.3d 257, 261 (6th Cir. 2012).

       Finally, Holloway argues that the district court erred in rejecting one of his proposed jury

instructions. We review the denial of a requested jury instruction for abuse of discretion. United

States v. Adams, 583 F.3d 457, 468-69 (6th Cir. 2009). A reversal will be required on the basis of

an erroneous jury instruction only where it is confusing, misleading, or prejudicial. United States

v. Harrod, 168 F.3d 887, 892 (6th Cir. 1999). Holloway argues that the district court’s instruction

that required the government to prove that he “knowingly possessed an item or items of child

pornography” did not require the jury to find that the items were in fact child pornography. This

argument is frivolous. Moreover, Holloway’s proposed instruction that he “knowingly possessed

computers containing child pornography” is not an improvement on this score.

       In summary, finding all of the issues raised on appeal meritless, we affirm the district court’s

judgment.

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