             Case: 12-11346    Date Filed: 03/04/2013   Page: 1 of 15

                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 12-11346
                            Non-Argument Calendar
                          ________________________

                    D.C. Docket No. 2:11-cr-14044-KMM-1


UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                     versus


DAVID HAYDEN,

                                                             Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________
                                (March 4, 2013)

Before WILSON, ANDERSON, and EDMONDSON, Circuit Judges.

PER CURIAM:

      David Hayden appeals his conviction and sentence for receipt of child

pornography, in violation of 18 U.S.C. § 2252(a)(2). Mr. Hayden never contended
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that his computers contained no images and videos of child pornography. He

contended they had been downloaded unintentionally.

      Before trial, the district court denied Hayden’s request for individualized

voir dire and declined to ask potential jurors the specific questions Hayden

submitted to the court. At trial, during Detective Brian Broughton’s testimony, the

government introduced into evidence the search warrant from the case and the

affidavit used to obtain the search warrant.

      The government called Dr. Philip Colaizzo (a medical doctor) to testify

about the ages of the persons in the pornography videos found on Hayden’s

computer and about the impact on the victims, based on his experience in the

subject area. The government also had Detective James Hotsinpiller, Major John

Crozier, and Detective Kevin Wiens testify about the ages of the persons in the

videos, and about the impact on the victims, based on their identifications and

interactions with specific victims from the videos.

      At sentencing, the district court denied Hayden’s objections about his intent

to distribute child pornography, which resulted in the application of a two-level

enhancement instead of a two-level reduction. After the district court heard

Hayden’s allocution, it resolved a government objection that resulted in the

application of a two-level obstruction of justice enhancement. The district court

imposed a 240-month guideline sentence.


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      Hayden raises seven issues on appeal.



                                           I.



      First, Hayden argues that individualized voir dire was necessary in this case

because of the sensitive nature of the offense. We review a district court’s conduct

of voir dire for abuse of discretion. United States v. Vera, 701 F.2d 1349, 1355

(11th Cir. 1983). The district court’s discretion includes whether to submit a

party’s proposed questions to the venire. United States v. Tegzes, 715 F.2d 505,

507 (11th Cir. 1983). The purpose of voir dire is to allow the defendant to

evaluate the prospective jurors and select a fair and impartial jury. Vera, 701 F.2d

at 1355. The proper inquiry is whether the overall examination affords the

defendant the protection sought. Tegzes, 715 F.2d at 507. A district court does not

abuse its discretion unless it unreasonably fails to assure that prejudice would be

discovered if present. Id.

      Here, the district court identified all biases in the potential jurors, ensured

that the jury would follow the applicable law, and instructed the jury that they must

reach a judgment based solely on the evidence. The voir dire process in this case

provided reasonable assurances that any existing prejudices held by potential jurors

were discovered, and the process adequately protected Hayden's right to an


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impartial jury. See Tegzes, 715 F.2d at 507. Thus, the district court did not abuse

its discretion in conducting voir dire.



                                            II.



       Next, Hayden contends that the district court erred in admitting the

testimonies of Colaizzo, Hotsinpiller, Crozier, and Wiens because they were

prejudicial, irrelevant, and inflammatory. He asserts that the only relevant issue

was whether he knowingly received child pornography; so the statements on the

ages and impacts on the victims should not have been allowed. He also says the

government improperly relied on profile evidence to overemphasize the

seriousness of his offense. He contends that all of these evidentiary errors

constituted cumulative error.

       Because Hayden, at trial, failed to object to the admissibility of this

testimony on the grounds of relevancy or prejudice, we review for plain error only.

See United States v. Dennis, 786 F.2d 1029, 1042 (11th Cir. 1986). Under plain

error review, the defendant must show: “‘(1) error, (2) that is plain, and (3) that

affects substantial rights.’” United States v. Rodriguez, 398 F.3d 1291, 1298 (11th

Cir. 2005) (citation omitted). We may then exercise our discretion to notice a

forfeited error, but only if “‘the error seriously affects the fairness, integrity, or


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public reputation of judicial proceedings.’” Id. (citation omitted). Under the plain

error standard, error affects a defendant’s substantial rights where that error

affected the outcome of the case. United States v. Olano, 507 U.S. 725, 734, 113

S.Ct. 1770, 1778, 123 L.Ed.2d 508 (1993). No plain error can exist where no

statute, rule, or binding precedent in this Court already directly resolved the issue.

United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003).

      Under the cumulative error doctrine, an aggregation of otherwise

non-reversible errors may allow for reversal based on the denial of a constitutional

right to a fair trial. United States v. Baker, 432 F.3d 1189, 1223 (11th Cir. 2005).

The harmlessness of cumulative error is determined by assessing whether the

defendant’s substantial rights were affected. Id.

      Section 2252(a)(2) prohibits a person from knowingly receiving or

distributing any depiction of minors engaging in sexually explicit conduct in a

manner that affects interstate commerce, including the use of a computer. 18

U.S.C. § 2252(a)(2). Sexually explicit conduct is defined as actual or simulated

sexual intercourse, bestiality, masturbation, sadistic or masochistic abuse, or

lascivious exhibition of the genitals or pubic area of any person. 18 U.S.C.

§ 2256(2)(B). In the context of sentencing, we have previously held that images

depicting young children being subjected to a painful sexual act, which included




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vaginal or anal penetration by an adult male, are sadistic. United States v. Bender,

290 F.3d 1279, 1286 (11th Cir. 2002).

      Rule 401 of the Federal Rules of Evidence defines relevant evidence as

evidence having any tendency to make a fact of consequence more or less probable

than it would be without the evidence. Fed.R.Evid. 401. Rule 403 provides that

relevant evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice. Fed.R.Evid. 403. We have

cautioned that a Rule 403 expulsion is an extraordinary remedy that a district court

should invoke sparingly and that the balance should be struck in favor of

admissibility. United States v. Dodds, 347 F.3d 893, 897 (11th Cir. 2003). As a

result, we view evidence in the light most favorable to its admission, maximizing

its probative value and minimizing its undue prejudicial impact. Id.

      Although Hayden did not dispute that his computer contained child

pornography, he argued that he received those images and videos by mistake.

Given Hayden’s defense, the testimony from Colaizzo, Hotsinpiller, Crozier, and

Wiens about the ages of the victims and the pervasiveness of images containing

minors on Hayden’s computer was pertinent to show that Hayden’s receipt of child

pornography was made knowingly, not unintentionally. Viewing the evidence in

the light most favorable to its admission, the probative value was not substantially

outweighed by the unfair prejudicial impact. See Fed.R.Evid. 403; Dodds, 347


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F.3d at 897. And Hayden has failed to show that the district court plainly erred by

allowing testimony about victim impact.

      The alleged profile -- the profile of persons receiving of child pornography -

- evidence concerned previously identified search terms associated with child

pornography, terms that were used by Hayden. Even assuming error occurred,

other sufficient evidence sustained Hayden’s conviction, and his substantial rights

were not affected. See Olano, 507 U.S. at 734, 113 S.Ct. at 1778; see Baker, 432

F.3d at 1223. Thus, the admission of the statements did not constitute error.



                                         III.



      Hayden asserts that the district court also erred by admitting the search

warrant and its supporting affidavit into evidence because they impermissibly

bolstered the credibility of the government’s case. Relying on United States v.

Pendas-Martinez, 845 F.2d 938 (11th Cir. 1988), he also argues that these

documents were inadmissible hearsay. Because Hayden raises this argument for

the first time on appeal, our review is for plain error. See United States v. Chilcote,

724 F.2d 1498, 1503 (11th Cir. 1984).

      Rule 802 of the Federal Rules of Evidence establishes that hearsay is

generally not admissible unless explicitly allowed. Fed.R.Evid. 802. Rule 801


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defines hearsay as an out of court statement offered for the truth of the matter

asserted. Fed.R.Evid. 801.

      In Pendas-Martinez, we remanded the case for a new trial on the basis that

the district court abused its discretion by admitting Coast Guard reports that

represented written summaries of the government’s case. Pendas-Martinez, 845

F.2d at 939. Relying on United States v. Brown, 451 F.2d 1231 (5th Cir. 1971), we

concluded that, despite the strength of the evidence against the defendants, the

error was not harmless because the jury was essentially given a condensed

summary of the government’s whole case: it was as if the government’s witnesses

had accompanied the jury to the jury room. Pendas-Martinez, 845 F.2d at 945.

      Hayden has identified no controlling authority that establishes that the

introduction of an affidavit used to obtain a search warrant is unfairly prejudicial

such that it constitutes reversible error. See Lejarde-Rada, 319 F.3d at 1291.

Further, the prejudicial effect of the admission of these documents did not affect

the outcome of the case. See Olano, 507 U.S. at 734, 113 S.Ct. at 1778.

      Pendas-Martinez involved the admission of a Coast Guard report rather than

a search warrant and its affidavit: and no binding precedent in this Court directly

resolved the pertinent evidentiary issue in Hayden’s favor. See Lejarde-Rada, 319

F.3d at 1291. The district court did not commit plain error in admitting the

affidavit and search warrant.


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                                          IV.



      Hayden argues that the district court impermissibly admitted Broughton’s

testimony as an opinion on the ultimate issue of fact. Hayden states that

Boughton’s statement -- that he became involved in the investigation after another

detective gave him videos that “were illegal in nature and part of the case of an IP

that [other police officers] had identified that was possessing and distributing child

pornography” -- was prejudicial because it offered a legal opinion of Hayden’s

guilt. He again argues that all of the evidentiary errors constituted cumulative

error. Hayden failed to raise an objection at trial so our review is for plain error.

See Chilcote, 724 F.2d at 1503.

      Under Rule 701 of the Federal Rules of Evidence, opinion testimony offered

by a lay witness is admissible when the opinion is (1) rationally based on the

perception of the witness; (2) helpful to a clear understanding of the testimony or

the determination of a fact in issue; and (3) not based on scientific, technical, or

other specialized knowledge. Fed.R.Evid. 701. Rule 704 states that a witness may

give an opinion on an ultimate issue, except that an expert witness may not offer an

opinion on the mental state of the defendant in a criminal case. Fed.R.Evid. 704;

see United States v. Dulcio, 441 F.3d 1269, 1274 (11th Cir. 2006).




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      Here, there was no plain error in admitting Detective Broughton’s statement

because it was presented as a background detail to explain why Broughton became

involved in the pertinent investigation rather than a genuine opinion on Hayden’s

ultimate guilt; and Broughton was not an expert witness. See Dulcio, 441 F.3d

at 1274. Because there was no error here and, as discussed above, Hayden’s

substantial rights were not affected, there was no cumulative error. See Baker, 432

F.3d at 1223.



                                          V.



      About sentencing, Hayden contends that the district court erred in applying a

two-level distribution enhancement and denying a two-level reduction for lack of

intent to distribute. In support of both claims, he argues that the evidence showed

that he took affirmative steps to prevent his computer from sharing files.

      The application of the Guidelines to the facts as found by the district court is

a question of law that we review de novo. United States v. McGarity, 669 F.3d

1218, 1232 (11th Cir.), cert. denied, 133 S.Ct. 378 (2012). A court’s determination

of the facts that support an enhancement is a finding of fact subject to the clearly

erroneous standard. Id. Because Hayden failed to object to the alleged sentencing

errors before the district court, however, we review for plain error. See id.


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      Section 2G2.2(b)(3)(F) of the Sentencing Guidelines provides for a

two-level enhancement where a person distributed child pornography. U.S.S.G.

§ 2G2.2(b)(3)(F). Section 2G2.2(b)(1) provides for a two-level reduction where

the defendant's conduct was limited to the receipt or solicitation of child

pornography, and the defendant did not intend to distribute the pornographic

material. U.S.S.G. § 2G2.2(b)(1).

      The evidence showed that Hayden allowed other computers to download

files from his computer and that other computers did actually download child

pornography files from his computer. Though Hayden argues that he did not

intend to distribute child pornography, the only evidence supporting his argument

shows that he only prevented his computer from sharing certain types of files.

Because neither § 2G2.2(b)(3)(F) nor the application notes impose an intent

requirement, the district court properly applied the enhancement.

      For the same reasons, the district court did not commit plain error by

denying the lack of distribution reduction. First, Hayden does not identify a

controlling authority that establishes the district court erred by failing to grant this

reduction. See Lejarde-Rada, 319 F.3d at 1291. Even under an abuse of discretion

standard, the district court could have reasonably concluded that Hayden knew his

computer allowed other computers to receive child pornography from him. As

such, there were no errors with Hayden’s Guideline calculation.


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                                         VI.



      Hayden also argues that the district court did not correctly satisfy its

requirement to provide him with time for allocution because it allowed the

government to argue for an obstruction of justice enhancement after his allocution.

      Hayden raises this issue for the first time on appeal. A sentencing issue not

raised in the district court is reviewed for plain error. United States v. Dorman,

488 F.3d 936, 942 (11th Cir. 2007). The Federal Rules of Criminal Procedure

require a district court to provide a defendant with an opportunity to speak before

imposing a sentence. Fed.R.Crim.P. 32(i)(4)(A)(ii). During that time, the

defendant may present any information to mitigate the sentence. Id. Hayden was

allowed to speak to the sentencing court.

      Hayden has identified no controlling authority that establishes that the

district court committed reversible error by not offering him a second opportunity

to allocute after the obstruction of justice enhancement was imposed. See Lejarde-

Rada, 319 F.3d at 1291. Any harm that might have been suffered by Hayden due

to the placement of his remarks was mitigated by the fact that he was allowed to

present argument opposing the obstruction enhancement, and he has not identified

what other factors he could have brought to the district court’s attention.




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                                        VII.



      Finally, Hayden asserts that this sentence was substantively unreasonable.

He contends that the district court failed to consider and apply the 18 U.S.C.

§ 3553(a) factors. He argues that the child pornography guidelines are

fundamentally flawed and inconsistent with the statutory goals of sentencing.

      We review the reasonableness of a sentence under a deferential abuse of

discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 591,

169 L.Ed.2d 445 (2007). We may “set aside a sentence only if we determine, after

giving a full measure of deference to the sentencing judge, that the sentence

imposed truly is unreasonable.” United States v. Irey, 612 F.3d 1160, 1191 (11th

Cir. 2010) (en banc).

      Briefly stated, the district court must impose a sentence “sufficient, but not

greater than necessary, to comply with the purposes” listed in 18 U.S.C.

§ 3553(a)(2), including the need to reflect the seriousness of the offense, promote

respect for the law, provide just punishment for the offense, deter criminal conduct,

and protect the public from the defendant’s future criminal conduct. 18 U.S.C.

§ 3553(a)(2). In imposing a particular sentence, the court must also consider the

nature and circumstances of the offense, the history and characteristics of the

defendant, the kinds of sentences available, the applicable guideline range, the


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pertinent policy statements of the Sentencing Commission, the need to avoid

unwarranted sentencing disparities, and the need to provide restitution to victims.

18 U.S.C. § 3553(a)(1), (3)-(7).

      “The party challenging the sentence bears the burden to show it is

unreasonable in light of the record and the § 3553(a) factors.” United States v.

Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). Although we do not apply a

presumption of reasonableness for sentences falling within the guidelines range,

“ordinarily we would expect a sentence within the Guidelines range to be

reasonable.” United States v. Talley, 431 F.3d 784, 787-88 (11th Cir. 2005).

      We reverse only if “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.” Irey, 612 F.3d at 1190. “The fact that the appellate court

might reasonably have concluded that a different sentence was appropriate is

insufficient to justify reversal of the district court.” Gall, 552 U.S. at 51, 128 S. Ct.

at 597.

      Hayden received a guideline sentence. The evidence showed that his

computer had at least 91 notable files of child pornography, and he allowed videos

to be downloaded by other users. In addition, the district court found that Hayden

provided false testimony at trial. Also, the sentencing judge expressed concern


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that Hayden was not remorseful and did not accept the seriousness of his offense.

Given the seriousness of Hayden’s offense and his lack of clear remorse, the

district court’s sentence was substantively reasonable.

      Contrary to Hayden’s assertions, the district court considered on the record

Hayden’s argument that the sentencing guidelines for receipt and possession of

child pornography were inherently unreasonable. The district court acknowledged

expressly that the guidelines were only advisory, but declined to impose a

below-guidelines sentence.

      We affirm Hayden’s conviction and sentence.

      AFFIRMED.




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