                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0345n.06
                             Filed: May 15, 2009

                                            No. 07-6055

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                   )
                                                            )
       Plaintiff-Appellee,                                  )       ON APPEAL FROM THE
                                                            )       UNITED STATES DISTRICT
               v.                                           )       COURT FOR THE MIDDLE
                                                            )       DISTRICT OF TENNESSEE
JOHN WYATT MELLIES,                                         )
                                                            )
       Defendant-Appellant.                                 )
                                                            )



BEFORE: KEITH, SUTTON, and GRIFFIN, Circuit Judges.

       GRIFFIN, Circuit Judge.

       Defendant John Wyatt Mellies appeals his jury conviction for possession of child

pornography and sentence of 96 months of imprisonment. He contends that the government violated

his due process rights by destroying or losing potentially exculpatory evidence; the district court

prejudiced the jury by permitting the government to publish 114 images and admit into evidence

approximately 1,600 images of child pornography, half of which were duplicates; the court abused

its discretion by failing to grant a mistrial after improper testimony by a government witness; the

court erroneously instructed the jury on an element of the offense; the evidence was insufficient to

establish his guilt beyond a reasonable doubt; the cumulative effect of the alleged errors violated his

right to a fair trial; and his sentence was unreasonable.
No. 07-6055
United States v. Mellies


        Because all issues raised on appeal by defendant are meritless, we affirm.

                                                 I.

        On August 3, 2005, a grand jury returned a one-count indictment against Mellies, charging

him with possessing a computer and computer media that contained images of child pornography

in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). Mellies was tried by jury beginning May 22,

2007.

        The evidence at trial established that on June 21, 2004, while Mellies was out of town, his

wife, Lisa, voluntarily provided the Dickson County Sheriff’s Office in Charlotte, Tennessee, with

a laptop computer and 47 compact discs, many of which contained child pornography. Mrs. Mellies

consented to a search of the home1 she shared with her husband and fourteen-year-old son from her

prior marriage.2

        During their search, law enforcement photographed an upstairs office that was furnished with

a computer desk and a Three Stooges figurine sitting atop a stereo speaker. The unplugged cords

surrounding the desk indicated that a computer was previously there.

        Thereafter, officers obtained a warrant for defendant’s arrest. Mr. Mellies arrived home in

his car, bearing the personalized Tennessee license plate “YUIATTA.” Detective Amy Longtin




        1
        Although Lisa Mellies turned her husband in and initially wanted to divorce him, she later
reconciled with him and refused to testify at trial, invoking the marital privilege.
        2
        There was no evidence in the record that Mr. Mellies ever behaved sexually inappropriately
toward his stepson.

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No. 07-6055
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testified that after his arrest, Mellies stated: “I can tell you this: That I’m not a part of some sort of

a ring” and that “this is something that doesn’t have anything to do with anybody else at all.”

        Detective Buddy Tidwell conducted a forensic examination of the electronic evidence. In

all, approximately 11,000 images, hundreds of movies, and stories ranging from the “high dozens

to low hundreds” depicting child pornography were found on the laptop and approximately 23 CDs.

While most of the child pornography was stored on the CDs, approximately 493 images were saved

on the laptop. The pictures and movies depicted vaginal, anal, oral, and digital penetration, as well

as bondage and torture, of children. Most of the files and folders storing the child pornography had

innocuous names, although some were sexually explicit and referred to children. The majority of

the files were password-protected. Each CD containing child pornography was marked with a

written symbol. Tidwell estimated that it would have taken months to download the thousands of

images and hundreds of video files of child pornography, zip the images into files, and name the

“hundreds and hundreds of directories” storing them.

        Tidwell also testified that he was “reasonably certain,” based on “the totality of the evidence

and everything that I have examined,” that defendant Mellies was responsible for collecting the child

pornography. According to Tidwell, “the vast majority of the activity that occurred on [the] laptop

[was] attributable” to defendant Mellies because “it’s very seldom that I would encounter a piece of

media or a body of media like this that is so devoid of multiple users or so devoid of other

explanations. I mean . . . an overwhelming amount of evidence in this laptop points to a single

owner/user.” Tidwell based his conclusions on several discoveries.


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United States v. Mellies


       The laptop stored hundreds of documents, including cover letters, resumés, and fax cover

sheets, as well as 1,199 emails and five email addresses that were all associated with defendant

Mellies, except a single email message that was signed by Lisa Mellies and one document written

by her son. The laptop’s operating system and various software found on the computer were

registered to defendant, and the computer was named “YUI02.”3 There were no other registered

users or owners of software. From January 18, 2001, until July 15, 2004, the user names associated

with the Mellies’ internet account were “YUI02” and “WyattPal,”4 and the contact person on the

account was defendant. From May 24, 2004, through June 20, 2004, the account connected to the

internet 68 times, for a total of 120 hours, and downloaded 1.6 gigabytes of information, or more

than one-third of the entire amount of space available on the laptop.

       Although the child pornography found on the CDs was not contemporaneously saved on the

laptop, the forensic examination revealed “significant artifacts that occurred both on the CDs as well

as on the laptop,” associating both with the same child pornography. Specifically, the laptop’s

hidden archives stored a large number of file and directory names that matched those found on the

CDs, suggesting that the images and video files on the CDs were once located on the laptop. One

of the CDs containing child pornography had a unique volume number that was also found in the

laptop’s archives. A separate log file of 1,154 pages recorded the compression and decompression


       3
        Detective Tidwell testified that “YUIATTA” and “YUI02" were references to the Three
Stooges, one of whom often used the catch phrase, “Why, you, I oughta . . .”
       4
      Defendant was previously employed by PAL Health Technologies, and a large number of
documents found on the laptop related to that company.

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No. 07-6055
United States v. Mellies


of files that were no longer on the laptop but that were saved on the CDs, many of which had names

describing sexual activities with children. Tidwell verified that information from the laptop was

downloaded onto at least four of the CDs containing child pornography.

       The dates of the CD files ranged from 1999 through May 2004, with the bulk of the dates

between 2001 and 2004. The dates were consistent with the time span in which the laptop was used.

       Special Agent Coyt Phillips of the Tennessee Bureau of Investigation Forensic Service

Division testified that four of defendant’s fingerprints were found on three of the CDs containing

child pornography. Neither Lisa Mellies’s fingerprints nor those of her son were recovered from any

CD.

       On May 24, 2007, the jury found Mellies guilty of possessing child pornography as charged

in Count One. At the sentencing hearing on August 16, 2007, Mrs. Mellies testified that she found

the CDs she delivered to the Sheriff’s Office behind a speaker in her husband’s office. She viewed

several of the CDs and discovered that they contained child pornography. Thereafter, the court

sentenced defendant to 96 months of imprisonment and a five-year term of supervised release.

       Mellies timely appeals.

                                                II.

       Mellies first requests that we reverse his conviction on the ground that the government

violated his due process rights under the Fifth Amendment to the federal Constitution by destroying




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United States v. Mellies


potentially exculpatory fingerprint evidence and a computer.5

       Regarding the fingerprint evidence, he contends that in its attempt to recover evidence of

child pornography, the government scrubbed and washed (resurfaced) the CDs, thereby destroying

potentially exculpatory fingerprints. As to the computer, Mellies asserts that the government lost

or destroyed a Gateway computer he owned and which he characterizes as “a critical piece of

evidence” because “the trial dealt primarily with computer files and computer issues” and the

computer “might have solved mysteries that Detective Tidwell could not explain[,]” including which

computer was used to download the child pornography and create the CDs and the person

responsible for doing so.

       Defendant failed to raise his due process challenges to the district court.6 Accordingly, we


       5
        The Fifth Amendment provides that “[n]o person shall be . . . deprived of life, liberty, or
property, without due process of law . . . .” U.S. CONST . amend. V.
       6
         Although defendant filed a pretrial motion to exclude fingerprint evidence, the request was
based on the government’s alleged failure to timely and adequately disclose its fingerprint evidence
as required by Rule 16 of the Federal Rules of Criminal Procedure. The motion did not allege that
the government violated his due process rights by destroying or inadequately preserving fingerprint
evidence. Accordingly, the district court’s order denying the motion did not address the due process
issues defendant now raises for the first time in his appeal. Moreover, defendant did not assert a due
process violation either during or after trial when he undoubtedly knew, based on testimony, that the
government resurfaced the CDs.

         Regarding the Gateway computer, defendant contends that he first discovered the computer
at trial when his counsel observed it in photographs. He complains that he “should not be penalized
because the Government withheld evidence until mid-trial.” However, defendant’s argument is
disingenuous because if, as he asserts, he owned a Gateway computer containing exculpatory
evidence, he obviously would not have first discovered the computer at trial; rather, he would have
known about it and conveyed such crucial information to his attorney before trial. Moreover,
defendant cites no authority holding that evidence that has been improperly withheld and then made

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No. 07-6055
United States v. Mellies


may deem them waived. United States v. Williams, No. 07-6358, 2009 U.S. App. LEXIS 4921, at

*7 (6th Cir. Mar. 9, 2009) (unpublished) (stating that it is “well within this court’s discretion” to

refuse to consider a defendant’s Fifth Amendment challenge raised for the first time on appeal, and

“[i]ndeed, it might be more appropriate to ignore the argument since considering it might encourage

defendants to sandbag district courts and the Government in some instances”).

        We may also consider the issue for plain error. FED . R. CRIM . P. 52(b) (stating that “[a] plain

error that affects substantial rights may be considered even though it was not brought to the court’s

attention”); Johnson v. United States, 520 U.S. 461, 466-67 (1997); United States v. Angel, 355 F.3d

462, 469 (6th Cir. 2004). However, “[t]he plain error doctrine is to be used sparingly, only in

exceptional circumstances, and solely to avoid a miscarriage of justice.” United States v. Phillips,

516 F.3d 479, 487 (6th Cir. 2008) (quoting United States v. Cox, 957 F.2d 264, 267 (6th Cir. 1992)).

To prevail on clear error review, the defendant must show: (1) error, (2) that is clear and obvious,

and (3) that affects his substantial legal rights. Angel, 355 F.3d at 469. If all three requirements are

met, we may exercise our discretion to consider the error, “but only if . . . the error seriously affects

the fairness, integrity, or public reputation of judicial proceedings.” Johnson, 520 U.S. at 467


known “mid-trial” extinguishes counsel’s obligation to assert a due process violation at that time.
Indeed, because the trial was not yet completed, defense counsel had ample opportunity to move for
a mistrial. That defense counsel did not do so suggests that he chose to forego that option as part
of his trial strategy. Supporting that conclusion, we note that defense counsel vigorously cross-
examined Detective Tidwell about the computer, and over the government’s objection, successfully
moved the court to permit him to publish and admit into evidence the photographs in which the
computer appeared. Defense counsel thus sought to procure an acquittal based on the “mysteries”
surrounding this Gateway computer and when the tactic proved unsuccessful, he reversed tactics in
this appeal. Defendant cannot have his cake and eat it too.

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No. 07-6055
United States v. Mellies


(internal quotation marks and citations omitted).

       The Supreme Court has stated that the Due Process Clause does not impose upon the police

“an undifferentiated and absolute duty to retain and to preserve all material that might be of

conceivable evidentiary significance in a particular prosecution.” Arizona v. Youngblood, 488 U.S.

51, 58 (1988). The parties agree that where, as here, the basis for defendant’s due process complaint

is that the government failed to “preserve evidentiary material of which no more can be said than that

it could have been subjected to tests, the results of which might have exonerated” him, United States

v. Wright, 260 F.3d 568, 571 (6th Cir. 2001) (quoting Youngblood, 488 U.S. at 57), he must show:

“(1) that the government acted in bad faith in failing to preserve the evidence; (2) that the

exculpatory value of the evidence was apparent before its destruction; and (3) that the nature of the

evidence was such that the defendant would be unable to obtain comparable evidence by other

means.” Monzo v. Edwards, 281 F.3d 568, 580 (6th Cir. 2002). Mere negligence, even gross

negligence, by the government in failing to preserve potentially exculpatory evidence does not

establish the required bad faith. Wright, 260 F.3d at 571.

       Whether we deem defendant’s due process challenge waived or review it for plain error, the

result is identical and affords defendant no relief.

                                                  A.

       Detective Tidwell testified at trial that he resurfaced, at most, five of the forty-seven CDs and

that the “vast majority” were not resurfaced. He subjected the CDs to the resurfacing process

because they “were scratched and damaged to the point that none of the computers in my lab would


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No. 07-6055
United States v. Mellies


read them.” Tidwell testified that he was confronted with a dilemma: whether to attempt to collect

data from the damaged CDs or obtain fingerprints from them. Although the resurfacing process

would have destroyed any fingerprints on the data side of the CDs, it did not necessarily affect

fingerprints on the non-data or label side of the CDs, which was not resurfaced.

       Based on Detective Tidwell’s unchallenged testimony, we conclude that the government’s

conduct was at most negligent and that it did not rise to the level of bad faith. Defendant does not

dispute that the resurfacing process affected a fraction of the total CD evidence against him, that only

those CDs that were damaged were resurfaced, or that fingerprints on the non-data side of the CDs

were unaffected. Defendant also does not contest Detective Tidwell’s articulated legitimate reason

for resurfacing the CDs. We further note that defendant might have even benefitted from the

resurfacing process because assuming that fingerprints were destroyed, his fingerprints may have

been among those lost.

       Further, the exculpatory value of the evidence was not apparent before its alleged destruction

for three reasons. First, it is purely speculative whether the resurfaced CDs previously contained

fingerprints. Second, even if fingerprints were on the CDs, it is wholly conjectural that such

fingerprints would be exculpatory. Finally, any fingerprints that might have been recovered from

the CDs would not have negated the evidence of defendant’s fingerprints that was recovered from

the CDs containing child pornography.

                                                  B.

       Regarding the Gateway computer, there is no “clear and obvious” due process violation from


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United States v. Mellies


an unauthenticated photograph that merely pictures a computer. The government did not offer any

incriminating evidence relating to that computer. As with the fingerprint evidence, defendant merely

speculates that the computer contained exculpatory evidence, and because he allegedly owned it, he

would have known if it did. Further, any information on the computer would not have negated the

incriminating evidence offered at trial. Indeed, Detective Tidwell testified that such evidence would

not have changed his opinion that an individual using defendant’s internet user name collected the

child pornography.

       For these reasons, defendant’s due process challenges are forfeited and, alternatively,

meritless.

                                                 III.

       Mellies also contends that the district court prejudiced the jury by permitting the government

to publish 114 images and admit into evidence approximately 1,600 images of child pornography,

half of which the government conceded at oral argument were duplicates.7 He asserts that the

evidence was improperly cumulative and unnecessary in light of his offer to stipulate that the images

were child pornography and because the jury was not required to determine the quantity of child

pornography to convict him of possessing it, that the prejudicial effect of the evidence outweighed

its probative value, and that the district court improperly ignored its gate-keeping duties, which he

contends obligated it to sua sponte examine each image, make a ruling on its probative versus

prejudicial effect, and provide a cautionary instruction to the jury about its possible prejudicial


       7
           The government explained that the duplicate images were caused by a software error.

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No. 07-6055
United States v. Mellies


impact.

                                                  A.

          “If a defendant does not state the specific ground for his evidentiary objection, and that

ground is not apparent from the context, we review a newly raised objection under the plain-error

standard.” United States v. Seymour, 468 F.3d 378, 384 (6th Cir. 2006) (internal quotation marks

omitted). Otherwise, we review a trial court’s decision regarding the admission of evidence under

Rule 403 of the Federal Rules of Evidence8 for abuse of discretion. United States v. Jackson, 473

F.3d 660, 668 (6th Cir. 2007).

          When reviewing for abuse of discretion, we view “the evidence in the light most favorable

to its proponent, giving the evidence its maximum reasonable probative force and its minimum

reasonable prejudicial value.” Jackson, 473 F.3d at 668 (quoting United States v. Moore, 917 F.2d

215, 233 (6th Cir. 1990)). Moreover, “the prejudice to be weighed is the unfair prejudice caused by

admission of the evidence. Evidence that is prejudicial only in the sense that it paints the defendant

in a bad light is not unfairly prejudicial . . . .” United States v. Sanders, 95 F.3d 449, 453 (6th Cir.

1996). “It is well settled that a trial judge’s discretion in balancing the probative value of evidence

against its potential for unfair prejudice is very broad.” United States v. Bilderbeck, 163 F.3d 971,

978 (6th Cir. 1999). We have emphasized that “[i]f judicial self-restraint is ever desirable, it is when



          8
         Rule 403 provides: “Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.”

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No. 07-6055
United States v. Mellies


a Rule 403 analysis of a trial court is reviewed by an appellate tribunal.” United States v. Zipkin, 729

F.2d 384, 390 (6th Cir. 1984) (quoting United States v. Long, 574 F.2d 761, 767 (3d Cir. 1978)).

                                                   1.

        Because defendant objected to admission of the evidence on the specific ground that he made

an offer to stipulate, we review the district court’s decision overruling that objection and admitting

the evidence for abuse of discretion.

        In United States v. Caldwell, No. 97-5618, 1999 U.S. App. LEXIS 7417 (6th Cir. Apr. 13,

1999) (unpublished), we held that the district court did not abuse its discretion under Rule 403 in

admitting evidence of child pornography, despite the defendant’s offer to stipulate that the evidence

was, in fact, child pornography. Id. at *20-*22.9 Caldwell relied upon the Supreme Court’s

acknowledgment in Old Chief v. United States, 519 U.S. 172 (1997) that “the prosecution is entitled

to prove its case free from any defendant’s option to stipulate the evidence away . . . .” Caldwell,

1999 U.S. App. LEXIS 7417, at *21 (quoting Old Chief, 519 U.S. at 189)).10 Caldwell reinforced

our prior decisions holding that even in the sensitive arena of child pornography cases, a defendant’s


       9
         Unpublished decisions of this court are not precedentially binding under the doctrine of stare
decisis but may be considered for their persuasive value. United States v. Sanford, 476 F.3d 391,
396 (6th Cir. 2007).
        10
          In Caldwell, we distinguished the Supreme Court’s holding in Old Chief that the district
court abused its discretion in admitting evidence of the defendant’s prior conviction over the
defendant’s offer to stipulate. Old Chief, 519 U.S. at 190-92. We noted that Old Chief’s holding
was an “exception” to the general rule against forced stipulations and that it applied only to
“stipulations to prior convictions as an element of an offense.” Caldwell, 1999 U.S. App. LEXIS
7417, at *21. Indeed, the Supreme Court unambiguously limited its holding in Old Chief to “cases
involving proof of felon status.” Old Chief, 519 U.S. at 183 n.7.

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No. 07-6055
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offer to stipulate does not deprive the government of its right to reject the offer and present its

evidence, particularly because the government bears the burden of proving the accused guilty beyond

a reasonable doubt. See United States v. Mercado, No. 86-1872, 1987 U.S. App. LEXIS 11567, at

*12 (6th Cir. 1987) (unpublished) (stating that “[a] cold stipulation can deprive a party of the

legitimate moral force of his evidence, . . . and can never fully substitute for tangible, physical

evidence or the testimony of witnesses”) (internal quotation marks omitted); United States v. Ryan,

No. 81-1317, 1983 U.S. App. LEXIS 13065, at *6-*7 (6th Cir. 1983) (unpublished) (holding that

the district court did not abuse its discretion in admitting into evidence photographs of child

pornography over defendant’s offer to stipulate because “[a]s a general rule, the government is not

bound by a defendant’s offer to stipulate”).

       Based on our reasoning in these decisions, we hold that the government was not required to

accept defendant’s offer to stipulate and that the district court did not abuse its discretion in

admitting the evidence notwithstanding the offer.

                                                  2.

       Defendant’s remaining evidentiary objections were not raised before the district court. His

appellate brief references the following trial objections.

       When the government moved to admit an exhibit containing images of child pornography,

defense counsel objected “for the reasons we stated at the pretrial conference . . . we’re not

contesting the fact that these images portray children. We just don’t think it’s appropriate to publish

it, because of what all the concerns are.” When the court attempted to elicit those concerns, defense


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No. 07-6055
United States v. Mellies


counsel responded: “[T]he matters that I discussed in chambers. I don’t think it’s appropriate to

delve into it. I’m just willing to stipulate – .” Later, when the government moved to admit another

exhibit containing child pornography, defense counsel lodged another objection: “Your Honor, note

my continuing objection. I have a continuing objection to these in light of my offer to stipulate to

these matters.” Finally, upon the government’s motion to admit another exhibit containing similar

images, defense counsel stated: “Same objection.”

       Thus, other than his offer to stipulate, defense counsel did not articulate the remaining

grounds for his evidentiary objections, and those grounds are not apparent from the context.

Counsel’s references to “concerns” and whether the photographs were “appropriate” were vague and

conclusory. They do not suggest to us that the grounds upon which counsel’s objections were based

were concerns about the images being cumulative, prejudicial, or unnecessary. Although counsel’s

objections refer to arguments made at the pretrial conference and in chambers, counsel did not cite

those proceedings in his appellate brief, did not provide transcripts of them in the record on appeal,

nor are the transcripts on the district court’s electronic docket. It was incumbent upon defense

counsel to insist that they be placed on the record to preserve them for appellate review. See Evans

v. United States, 397 F.2d 675, 680 (D.C. Cir. 1968) (stating that “it is counsel’s burden to see to it

that the record is complete”). Had counsel done so, we could properly evaluate whether the district

court’s articulated rationale for overruling the objections constituted an abuse of discretion.

       Whether we review the district court’s admission of the images for plain error or abuse of

discretion, the outcome is identical and entitles defendant to no relief. Mellies was charged in a one-


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United States v. Mellies


count indictment of knowingly possessing child pornography. The evidence – images of child

pornography – was, by its nature, inherently disturbing but unavoidable.              While defendant

characterizes it as prejudicial, cumulative, and unnecessary, this evidence was, in fact, essential to

proving an element of the charged crime. See 18 U.S.C. § 2252A(a)(5)(B) (“possesses . . . an image

of child pornography . . . .”). The evidence is thus distinguishable from other genres of evidence that

are merely indirect and therefore more likely to prejudice or confuse a jury, such as evidence of past

criminal conduct or similar acts.

        Moreover, the 1,600 images admitted into evidence constituted a small fraction –

approximately fifteen percent – of the total 11,000 images of child pornography recovered from

defendant’s home.11 Significantly, when we asked defense counsel at oral argument to suggest the

number of images that would have been appropriate for admission, defense counsel conceded that

she did not know. We note that even where photographic evidence of pornography relates to

uncharged conduct, one of our sister circuits has observed that “it is difficult, if not impossible, to

draw a line at which such evidence, by virtue of its sheer volume, necessarily becomes unfairly

prejudicial.” United States v. Long, 328 F.3d 655, 664 (D.C. Cir. 2003).

        Defendant’s arguments also cut both ways. The large number of images might have numbed

or desensitized the jury, rather than prejudiced it. Further, that the government relied on duplicate



        11
          Defendant inaccurately asserts in his appellate brief that all 11,000 images were available
to the jury during their deliberations. At oral argument, the parties clarified that, although all 11,000
images were stored on the CDs and laptop computer that were provided to the jury, the jury could
not access the images.

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images to prove its case could have caused the jury to infer that the government did not have a strong

case against defendant. Finally, because images depicting children engaging in sexual acts are

disturbing to the average person and the jury was only required to find that one of the images

depicted child pornography to convict defendant, it is reasonable to conclude that the jury most likely

did not dwell on the pictures.

       The potential for prejudice was lessened when, during voir dire, the district court warned

prospective jurors about the sensitive nature of the images and excused, for cause, at least one juror

who stated that she would not be able to view the images without bias against defendant. See

Mercado, 1987 U.S. App. LEXIS 11567, at *12 (holding that “the potential for unfair prejudice to

defendant was minimized by the fact that potential jurors who did not believe they could put aside

any inflammatory impact the pedophilic materials might have were excused for cause”).

       For these reasons, we hold that the district court did not plainly err or abuse its discretion in

admitting the challenged evidence.

                                                  3.

       Defendant does not contend, nor is there any evidence in the record indicating, that defendant

urged the district court to examine each image, make a ruling on its probative versus prejudicial

effect, or provide a cautionary instruction to the jury. Accordingly, we review the issue for plain

error. Defendant cites no authority holding that the trial court’s failure to sua sponte complete these

tasks constituted plain error, and we hold that in this case, it did not. We also note that defense

counsel had ample opportunity to unilaterally mitigate any prejudicial effects from the evidence


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United States v. Mellies


during his opening and closing arguments to the jury. Further, we observe that the jury instructions

included an instruction on “sympathy and hostility,” which warned jurors to avoid “emotional

considerations” during their deliberations.

                                                B.

       Assuming arguendo that the district court abused its discretion or plainly erred in admitting

the contested evidence, we alternatively hold that its error was harmless. Tompkin v. Philip Morris

USA, Inc., 362 F.3d 882, 897 (6th Cir. 2004) (stating that “claims of error with regard to the

admission or exclusion of evidence are prime candidates for application of the harmless error rule”)

(quoting 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and

Procedure § 2885 (2d ed. 1995)). “An error is harmless ‘when it appears beyond a reasonable doubt

that the error complained of did not contribute to the verdict obtained.’” United States v. Baldwin,

418 F.3d 575, 582 (6th Cir. 2005) (quoting Mitchell v. Esparza, 540 U.S. 12, 17-18 (2003)). “The

presence of overwhelming evidence of guilt can render the erroneous admission of other evidence

harmless beyond a reasonable doubt.” United States v. Ray, 189 F. App’x 436, 444 (6th Cir. 2006)

(unpublished).

       For the reasons articulated in our examination of the sufficiency of the evidence in Part VI,

the evidence overwhelmingly proved that defendant Mellies knowingly possessed child pornography

as charged.

                                                IV.




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        Next, Mellies contends that the district court abused its discretion by failing to grant a

mistrial after improper testimony by a government witness, opting instead to cure the possible

prejudicial impact of the testimony by instructing the jury to disregard it.

        When asked at trial about Mrs. Mellies’s “demeanor” at the time she provided the evidence

to the Sheriff’s Department, Detective Amy Longtin testified that “[s]he was crying and said that she

was scared that – .” Counsel for the government immediately interrupted Detective Longtin,

warning: “Just her demeanor is all we . . . need.”

        Later, in response to the prosecutor’s question at trial asking what happened after procuring

the arrest warrant, Detective Longtin testified that “we had retrieved information that [Mr. Mellies]

could possibly be armed –” Counsel again interjected, instructing Detective Longtin: “[P]lease

don’t get into what you’d been told.”

        Defense counsel objected and moved for a mistrial based on Detective Longtin’s testimony

suggesting that Mrs. Mellies was afraid of her husband and that he was armed. Counsel protested

that he could not “unring the bell” and that “now it’s incumbent on me to show somehow Mr.

Mellies is not violent . . . .”

        The prosecutor suggested that the court issue a curative instruction, to which defense counsel

objected on the basis that such an instruction could not cure the prejudicial effects of the testimony.

Although the court agreed that the challenged testimony was “regrettable,” “went too far,” and “was

not responsive to the question,” it ruled that any harm could be remedied by an appropriate




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instruction, particularly because the trial had just begun. Accordingly, the court read the following

instruction:

       Ladies and gentlemen of the jury, in my preliminary instructions to you, you will
       recall that I told you that there might be times during the course of the trial when I
       would have to instruct you that certain testimony that you heard was improper and
       that you were to disregard that certain testimony, whatever it might be – and I would
       describe it – and give it no weight or consideration upon your oath.

       Now, in this instance, this witness, during her testimony, made some statement to the
       effect that she was told that the defendant might be possibly armed. And she also
       made a statement that she attributed to Mrs. Mellies that she – Ms. Mellies – was
       afraid.

       I now instruct you that you’re to disregard that testimony by this witness in those two
       respects; any reference to the defendant possibly being armed and, secondly, any
       testimony by this witness about Mrs. Mellies being afraid. And give that testimony
       – put it out of your mind and give it absolutely no weight or consideration upon your
       oath. Just disregard it and let it play no part or consideration in your ultimate
       decision in this case.

       We review a motion for mistrial for abuse of discretion and examine five factors to determine

the extent to which improper testimony prejudiced the defendant:

       (1) whether the remark was unsolicited, (2) whether the government’s line of
       questioning was reasonable, (3) whether a limiting instruction was immediate, clear,
       and forceful, (4) whether any bad faith was evidenced by the government, and (5)
       whether the remark was only a small part of the evidence against the defendant.

United States v. Caver, 470 F.3d 220, 243 (6th Cir. 2006) (quoting Zuern v. Tate, 336 F.3d 478, 485

(6th Cir. 2003)).

       All of the factors suggest that the district court did not abuse its discretion in denying

defendant’s request for a mistrial. First, the improper testimony was unsolicited. The prosecutor

questioned Detective Longtin about Mrs. Mellies’s “demeanor” and the events that occurred after

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No. 07-6055
United States v. Mellies


obtaining the arrest warrant; counsel did not ask Ms. Longtin about statements Mrs. Mellies made

or whether defendant was armed. In fact, the court correctly found that the improper testimony was

“not responsive to the question.” Second, the government’s line of questioning was reasonable

because it provided necessary context about the circumstances surrounding the government’s

acquisition of the evidence and defendant’s arrest. Indeed, it was essential that the jury know Mrs.

Mellies’s demeanor at the time she provided the police with evidence that incriminated her husband

in a crime because defendant’s theory was that Mrs. Mellies (or her son), not defendant, downloaded

and possessed the child pornography. Third, immediately after defendant objected and the parties

and court conferenced at the bench, the court read a clear and forceful curative instruction directing

that the jury wholly disregard the improper testimony. Fourth, there was no bad faith on the part of

the government as unambiguously demonstrated by the prosecutor’s immediate interruptions of

Detective Longtin’s testimony and warnings that “[j]ust her demeanor is all we . . . need” and “please

don’t get into what you’d been told.” Finally, the improper testimony consisted only of two

statements that had no bearing on the guilt or innocence of defendant because it had no direct

relevance to the elements of the charged offense.

       For these reasons, we hold that the district court did not abuse its discretion in denying the

motion for mistrial. Alternatively, and as addressed in Part VI, there is sufficient evidence of guilt,

apart from any effect the improper testimony may have had, to sustain the conviction. Accordingly,

assuming arguendo that the court erred, we alternatively hold that the error was harmless. See




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No. 07-6055
United States v. Mellies


Jordan v. Hurley, 397 F.3d 360, 363 (6th Cir. 2005) (stating that “Confrontation Clause violations

are subject to harmless error review”).

                                                  V.

        Defendant also argues that the district court erred in its instruction to the jury on the

jurisdictional element of the offense. Specifically, he contends that: (1) the court erred by rejecting

his proposed jury instruction, which would have required the jury to find that the child pornography

had a “substantial effect” on or “sufficient connection” to interstate commerce; (2) the court

improperly “instructed away” the jurisdictional element when it told the jury that the image moved

in interstate commerce if it “was created in a State other than Tennessee and was subsequently

present in Tennessee”; and (3) the district court erroneously instructed the jury that any image that

was transmitted or received over the internet moved in interstate commerce.

        “In a criminal trial, the State must prove every element of the offense, and a jury instruction

violates due process if it fails to give effect to that requirement.” Joseph v. Coyle, 469 F.3d 441, 464

(6th Cir. 2006) (quoting Middleton v. McNeil, 541 U.S. 433, 437 (2004)). We review an instruction

alleged to be faulty on a matter of law de novo and the district court’s refusal to give a requested

instruction for abuse of discretion. United States v. Blood, 435 F.3d 612, 623 (6th Cir. 2006).

“Harmless errors are disregarded.” Id. (citing FED . R. CRIM . P. 52(a)).

                                                  A.

        Defendant’s first argument – that the court erred by not instructing the jury to find that the

child pornography had a “substantial effect” on or “sufficient connection” to interstate commerce


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No. 07-6055
United States v. Mellies


to convict him – is without merit. The decisions upon which he relies12 undermine, rather than

support, his argument because they relegate the “substantial effect” or “sufficient connection” inquiry

to a purely legal determination for the court and not to an issue of fact to be found by a jury. A

defense based upon the government’s alleged failure to satisfy the jurisdictional element of the

offense in a particular case is properly asserted as an as-applied constitutional challenge to §

2252A(a)(5)(B). See Corp, 236 F.3d at 333 (articulating the factors that a court should consider

when assessing whether a defendant’s possession of child pornography was substantially related to

interstate commerce where the defendant asserted an as-applied Commerce Clause challenge). None

of the cases upon which defendant relies authorize a trial court to delegate its task of determining

the constitutionality of the indictment to a jury. Indeed, it would have been improper for the court

to do so.

                                                  B.

       Defendant’s next argument – that the court improperly “instructed away” the jurisdictional

element when it told the jury that the image moved in interstate commerce if it “was created in a

State other than Tennessee and was subsequently present in Tennessee” – is also unavailing.

Defendant does not contend that this was an inaccurate statement of law. Indeed, it was correct.

Obviously, if an image was “created” in a state other than Tennessee but then was “subsequently



       12
          United States v. Corp, 236 F.3d 325 (6th Cir. 2001); United States v. Latouf, 132 F.3d 320
(6th Cir. 1997); United States v. Salazar, Nos. 05-1810 & 05-1835, 2006 U.S. App. LEXIS 16324
(6th Cir. June 22, 2006) (unpublished); United States v. Ray, 189 F. App’x 436 (6th Cir. 2006)
(unpublished); United States v. Richards, 401 F. Supp. 2d 834, 843-44 (M.D. Tenn. 2005).

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No. 07-6055
United States v. Mellies


present in Tennessee,” it had to, at some time, move in interstate commerce. The court properly

cautioned the jury that “[i]t is for you to determine, however, . . . if any image of child pornography

was created in a State other than Tennessee and was subsequently present in Tennessee.”

Accordingly, the argument is without merit.

                                                   C.

       Finally, defendant asserts that the district court’s instruction that an image moved in interstate

commerce if it was transmitted or received over the internet was an incorrect statement of law. He

argues that an image that was transmitted or received over the internet did not necessarily move

across states or travel in interstate commerce.

       Although that issue was the source of much discussion at oral argument, we note that

defendant did not argue it before the district court, nor did he discuss it in his appellate briefs. The

case upon which defendant relied at oral argument, United States v. Schaefer, 501 F.3d 1197 (10th

Cir. 2007), was not cited in his initial or reply briefs, even though it was decided well before

defendant filed his initial brief in June 2008. The government appeared to be taken by surprise by

defendant’s last-minute argument. We may thus deem the issue waived. See FED . R. APP . P.

28(a)(9)(A) (requiring that the argument in appellant’s brief contain “appellant’s contentions and the

reasons for them, with citations to the authorities and parts of the record on which the appellant

relies”); United States v. Voigt, 89 F.3d 1050, 1064 n.4 (3d Cir. 1996) (deeming an issue raised for

the first time at oral argument and not argued in the appellant’s brief waived “because consideration

of [it] would vitiate the requirement of the Federal Rules of Appellate Procedure and [the Third


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No. 07-6055
United States v. Mellies


Circuit’s] own local rules that, absent extraordinary circumstances, briefs must contain statements

of all issues presented for appeal, together with supporting arguments and citations”) (citation

omitted); United States v. Still, 102 F.3d 118, 122 n.7 (5th Cir. 1996) (declining to address the

defendant’s challenge to all six counts on which he was convicted because it was asserted for the

first time in his reply brief and “an appellant abandons all issues not raised and argued in its initial

brief on appeal”) (citation and internal quotation marks omitted); United States v. Alonso, 48 F.3d

1536, 1544 (9th Cir. 1995) (refusing to address the appellant’s “unsupported” and “[un]developed”

arguments which contained no citations to authority because they violated the Federal Rules of

Appellate Procedure).

        The argument, at any rate, rests on slim support. Schaefer recognized that “in many, if not

most, situations the use of the Internet will involve the movement of communications or materials

between states” but held that “this fact does not suspend the need for evidence of this interstate

movement.” 501 F.3d at 1201. Yet, Schaefer stands alone and has been rejected by every court that

has considered the issue. See United States v. MacEwan, 445 F.3d 237, 239 (3d Cir. 2006) (holding

that “use of the Internet satisfies the interstate commerce element of the federal law prohibiting the

receipt of child pornography, 18 U.S.C. § 2252A(a)(2)(B)”), cert. denied, 549 U.S. 882 (2006);

United States v. Runyan, 290 F.3d 223, 239 (5th Cir. 2002) (“We join the First Circuit in holding that

‘transmission of photographs by means of the Internet is tantamount to moving photographs across

state lines and thus constitutes transportation in interstate commerce’ for the purposes of 18 U.S.C.

§ 2251”); United States v. Carroll, 105 F.3d 740, 742 (1st Cir. 1997) (same) (citing United States


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No. 07-6055
United States v. Mellies


v. Thomas, 74 F.3d 701, 706-07 (6th Cir. 1996)); United States v. Pomerico, No. 06 CR 113, 2008

U.S. Dist. LEXIS 77783, at *6 (E.D. N.Y. Oct. 3, 2008) (holding that “[c]ontrary to the opinion

expressed by the Tenth Circuit in Schaefer, this Court finds that use of the Internet satisfies the

interstate commerce element of . . . 18 U.S.C. § 2252A(a)(2)(B)”) (internal quotation marks

omitted); United States v. Gouin, No. CR05-433RSL, 2008 U.S. Dist. LEXIS 33709, at *6-*7 (W.D.

Wash. Apr. 24, 2008) (finding “compelling” the testimony of an expert witness about “why the use

of the Internet to transmit the visual depictions at issue is inherently part of interstate commerce” and

following MacEwan).

        As the Third Circuit noted in MacEwan:

        “The Internet is an international network of interconnected computers . . . [and is
        comparable] to both a vast library including millions of readily available and indexed
        publications and a sprawling mall offering goods and services.” Reno v. ACLU, 521
        U.S. 844, 850-53 (1997). Moreover, as is evident from the trial testimony of the
        government’s expert, unless monitored by specific equipment, it is almost impossible
        to know the exact route taken by an Internet user’s website connection request, such
        as [defendant’s] requests to connect with various child pornography websites.
        Because of fluctuations in the volume of Internet traffic and determinations by the
        systems as to what line constitutes the “Shortest Path First,” a website connection
        request can travel entirely intrastate or partially interstate.

        Regardless of the route taken, however, we conclude that because of the very
        interstate nature of the Internet, once a user submits a connection request to a website
        server or an image is transmitted from the website server back to user, the data has
        traveled in interstate commerce. Here, once the images of child pornography left the
        website server and entered the complex global data transmission system that is the
        Internet, the images were being transmitted in interstate commerce.

445 F.3d at 244.




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       The Tenth Circuit itself later characterized its holding in Schaefer as “limited to its facts –

the government’s say so was not enough to prove that the Internet operates in interstate commerce,

no matter how obvious.” United States v. Vigil, 523 F.3d 1258, 1266 (10th Cir. 2008). Indeed, in

Gouin, the district court found it significant that “[i]n Schaefer, the prosecution never presented any

evidence of where the child victims were located when they were sexually abused and photographed.

There was also no evidence that Schaefer downloaded images via computer and placed them on the

CDs found in his home.” 2008 U.S. Dist. LEXIS 33709, at *9 (internal citation and quotation

omitted). The Gouin court distinguished Schaefer, explaining that “[h]ad the Schaefer court been

presented with the breadth and depth of the evidence of interstate transportation in this case, the

Tenth Circuit would have had no difficulty in affirming Schaefer’s conviction.” Id.

       Schaefer involved eleven images of child pornography on two CDs. 501 F.3d at 1198. The

evidence in this case included 11,000 images and hundreds of movies and stories depicting and

describing child pornography. Defendant also visited several internet bulletin boards where child

pornography was posted. Moreover, unlike in Schaefer in which “an investigating agent testified

that he had no evidence Mr. Schaefer downloaded images via computer and placed them on CDs

found in his home[,]” id. at 1199, the forensic evidence in this case overwhelmingly proved that

Mellies downloaded the images via his laptop computer and saved them onto numerous CDs found

in his home. Further, Texas and Missouri police officers testified at trial that several of the images

depicted known children who were abused in Waco, Texas, and Kansas City, Missouri, not in

Tennessee (where Mellies lived).


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No. 07-6055
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       Because the evidence in this case overwhelmingly proved that the child pornography traveled

in interstate commerce, we hold that the district court did not err in instructing the jury that “any

image of child pornography that was transmitted or received over the Internet moved in interstate

commerce.”

                                                VI.

       Next, defendant challenges his conviction based on the sufficiency of the evidence. We

review de novo a district court’s denial of a motion under Rule 29 of the Federal Rules of Criminal

Procedure13 based on insufficient evidence and assess the evidence “in the light most favorable to

the prosecution to determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.”14 United States v. Campbell, 549 F.3d 364, 374

(6th Cir. 2008). We “will reverse a judgment based on a finding of insufficient evidence only if the

judgment is not supported by substantial and competent evidence upon the record as a whole.” Id.

Further, all reasonable inferences must be made to support the verdict. Id.

       Construing the evidence in the light most favorable to the prosecution, the circumstantial

evidence established beyond a reasonable doubt that Mellies knowingly possessed child

pornography. In fact, we may reasonably infer that he confessed to the crime when he told law



       13
        Rule 29(a) provides: “After the government closes its evidence or after the close of all the
evidence, the court on the defendant’s motion must enter a judgment of acquittal of any offense for
which the evidence is insufficient to sustain a conviction.”
       14
        Defendant properly moved for judgment of acquittal at the end of the government’s proof,
which coincided with the close of all evidence.

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No. 07-6055
United States v. Mellies


enforcement after his arrest: “I can tell you this: That I’m not part of some sort of a ring” and that

“this is something that doesn’t have anything to do with anybody else at all.”

       The forensic evidence demonstrated that Mellies was the primary, and in fact, the almost

exclusive, user of the laptop on which the child pornography was discovered and which was linked

to the numerous CDs storing it. His fingerprints were found on several of those CDs, while the

fingerprints of the only other members of the household – his wife and her son – were not.

       Defendant’s interest in child pornography was exhaustive. The evidence showed that he

amassed, over a period of months or years, 11,000 images and hundreds of videos and stories.

Defendant did not dispute that the images and videos of children being sexually abused and tortured

were indeed child pornography, and he attempted to so stipulate. He created an elaborate system of

directories to organize the fruits of his addiction. He also attempted to conceal his conduct by

password-protecting the images and by innocuously naming many of them, thereby demonstrating

that he knew that what he was doing was wrong. Apparently, he believed that his interest could be

hidden by a damaged laptop computer cord, which he had to hold in place to render the laptop

functional. Still, he could not completely eclipse his secret, as numerous images were saved under

names that unambiguously referred to sexual activities with children. Nor could he ultimately hide

it from his wife, who suspected her husband of possessing pornography (albeit, adult pornography)

and therefore searched the house, ultimately finding the CDs containing child pornography behind

speakers in her husband’s office. She provided the incriminating evidence to the police.




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No. 07-6055
United States v. Mellies


        Based on this evidence, we hold that a rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt and that the district court did not err in denying

defendant’s Rule 29 motion for judgment of acquittal.15

                                                  VII.

        Defendant also complains that the cumulative effect of the alleged errors made by the district

court violated his right to a fair trial. But while he is correct that “trial-level errors that would be

considered harmless when viewed in isolation of each other might, when considered cumulatively,

require reversal of a conviction,” Campbell v. United States, 364 F.3d 727, 736 (6th Cir. 2004), the

converse is also true: “[T]he accumulation of non-errors cannot collectively amount to a violation

of due process.” Id. Because we have determined that each of the issues raised on appeal by

defendant is without merit and that the district court made no errors, defendant is entitled to no relief.

                                                  VIII.

        Finally, defendant challenges his sentence. We review sentences for reasonableness. United

States v. Vowell, 516 F.3d 503, 509 (6th Cir. 2008). That inquiry requires us to examine the

“procedural” and “substantive” reasonableness of the sentence imposed. Id.

                                                   A.



        15
          We do not address the evidence relating to the jurisdictional element because defendant did
not challenge that element in his appeal of this issue; rather, his briefs merely reiterate his contention
that the district court should have instructed the jury that it was required to find that the images had
a sufficient connection to interstate commerce, an argument which we already rejected. Moreover,
for the reasons already stated, we hold that the evidence was sufficient to satisfy the jurisdictional
element.

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No. 07-6055
United States v. Mellies


       In Vowell, we stated that “[t]he Supreme Court has summed up our review for procedural

reasonableness” as follows:

       [T]he appellate court must review the sentence under an abuse-of-discretion standard.
       It must first ensure that the district court committed no significant procedural error,
       such as failing to calculate (or improperly calculating) the Guidelines range, treating
       the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a
       sentence based on clearly erroneous facts, or failing to adequately explain the chosen
       sentence – including an explanation for any deviation from the Guidelines range.

Vowell, 516 F.3d at 509-10 (quoting Gall v. United States, 128 S. Ct. 586, 597 (2007)).

       Defendant contends that the district court procedurally erred by failing to properly calculate

the applicable Guidelines range, consider the sentencing factors in 18 U.S.C. § 3553(a), and

adequately explain its reasons for imposing the sentence it did.

                                                 1.

       Mellies argues that the district court miscalculated his Guidelines range by enhancing his

sentence based on the allegedly erroneous judge-found fact that he possessed six hundred or more

images of child pornography, thereby adding five levels to the base offense level.16 He complains

that the verdict form only required the jury to determine whether he possessed child pornography;

it did not elicit a finding about the amount of child pornography. According to defendant, the

“competent proof” at trial established that only 71 of the pornographic images involved minors, and

Detective Tidwell’s opinion that there were approximately 11,000 images of child pornography was

inadmissible because the court did not qualify him as an expert in determining the ages of


       16
        The Guidelines range was determined using the 2003 edition of the United States
Sentencing Guidelines Manual.

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No. 07-6055
United States v. Mellies


individuals portrayed in photographs. Finally, Mellies maintains that at the sentencing hearing, there

was testimony that only 499 images depicted “known minors” and that up to eighty percent of those

images could have been duplicates.

       In assessing whether the district court correctly calculated the applicable Guidelines range,

we review the court’s factual findings for clear error and its legal conclusions de novo. United States

v. Bolds, 511 F.3d 568, 579 (6th Cir. 2007). Post-Booker,17 we have consistently held that “district

judges can find the facts necessary to calculate the appropriate Guidelines range.” United States v.

Ferguson, 456 F.3d 660, 665 (6th Cir. 2006). “Where, as here, the district court recognized the

advisory nature of the guidelines, the increase in a defendant’s sentence based on facts not admitted

by the defendant or proven to a jury beyond a reasonable doubt does not violate the Sixth

Amendment.” United States v. Conatser, 514 F.3d 508, 527 (6th Cir. 2008). In fact, the sentencing

court may consider even “acquitted conduct” if it finds facts supporting that conduct by a

preponderance of the evidence, so long as the sentence resulting from those judge-found facts does

not exceed the statutory maximum penalty for the convicted offense.18 United States v. White, 551

F.3d 381, 384-85 (6th Cir. 2008) (en banc).

       The district court’s factual determination that defendant possessed six hundred or more

images of child pornography was not clearly erroneous. The evidence at trial established that there



       17
            United States v. Booker, 543 U.S. 220 (2005).
       18
       The maximum sentence of imprisonment for possessing child pornography under §
2252A(a)(5)(B) is ten years. § 2252A(b)(2). Defendant was sentenced to eight years.

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No. 07-6055
United States v. Mellies


were thousands of images and almost two hundred videos containing child pornography. In fact,

Detective Tidwell testified, and the physical evidence confirmed, that there were approximately

11,000 such images, well beyond the six hundred images necessary to support the five-level

Guidelines enhancement.

        Defendant provides no basis to support his contention that expert testimony was required to

establish that the images were of minors. Significantly, he did not argue at trial that the government

was required to produce a so-called “age expert” to testify that the pornographic images depicted

children, and in fact, he attempted to stipulate that they did. Whether individuals with obviously

prepubescent physical features are minors is not the type of “scientific, technical, or other specialized

knowledge” requiring expert testimony as contemplated by Rule 702 of the Federal Rules of

Evidence. Cf. United States v. Fuller, 77 F. App’x 371, 380 (6th Cir. 2003) (unpublished) (holding

that lay witness’s opinion that the images “appeared to be” live human beings was sufficient to

support the jury’s finding that the pornographic images were produced using actual minors).

        Finally, defendant’s argument that the enhancement for six hundred or more images was

erroneous because only 499 images were of “known victims” and that up to eighty percent of those

images could have been duplicates is unavailing. The government concedes that some images were

duplicates. However, even if as many as eighty percent were duplicates, the body of evidence still

includes over two thousand images and videos, more than enough to justify the maximum




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No. 07-6055
United States v. Mellies


enhancement.19

       We note that defendant’s challenge to the number of pornographic images depicting children

is based on pure conjecture. Defendant offered no evidence of his own to establish the number of

duplicate images or to rebut the government’s proof that there were thousands of images of child

pornography. If defendant genuinely believed that the number of duplicate images was so substantial

that it would have reduced the quantity of images below the six hundred-image threshold necessary

to justify the five-level enhancement, he could have marked all images he thought were duplicates

and brought them to the sentencing judge’s attention. That he failed to do so is revealing. Having

considered the testimony and physical evidence at trial and at the sentencing hearing, the judge was

uniquely positioned to draw his own conclusions about the number of pornographic images

involving children. Cf. Fuller, 77 F. App’x at 380 (deeming it “significant []” that “no contrary

evidence was offered to suggest either that any of the visual depictions were computer generated,

or that they were not produced using actual minors” and concluding that “the jury was in a position

to draw its own conclusions about whether they depicted actual children”); United States v. Deaton,

328 F.3d 454, 455-56 (8th Cir. 2003) (holding that a jury’s finding that real children were depicted

may be upheld even when the only evidence offered was the images themselves); United States v.


       19
          Defendant mischaracterizes the testimony of FBI Special Agent Hemmersmeier when he
asserts that Hemmersmeier admitted that “possibly up to eighty percent are duplicates.” When
defense counsel asked whether “[t]here was a huge number that were exact duplicates,”
Hemmersmeier responded, “My understanding was there were some duplicates” but testified that he
did not know how many were duplicates. (Emphasis added.) It was defense counsel, not
Hemmersmeier, who suggested in his leading question that “[i]t could have been 80 percent as far
as you know?”

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No. 07-6055
United States v. Mellies


Vig, 167 F.3d 443, 449-50 (8th Cir. 1999) (holding that where defendant simply argues that images

may or may not be of real children, the government is not required to negate as part of its proofs the

unsupported speculation).20

       Because the district court’s factual finding that defendant possessed six hundred or more

images of child pornography was not clearly erroneous, defendant’s challenge to its calculated

Guidelines range on that basis is without merit.

                                                   2.

       Defendant also contends that his sentence was procedurally unreasonable because the district

court failed to consider the 18 U.S.C. § 3553(a) sentencing factors21 and adequately explain its


       20
           Significantly, the district judge noted that because the 2003 edition of the Sentencing
Guidelines Manual did not address the vast quantity of images attributable to defendant, the five-
level enhancement “substantially under-represent[ed] the number of minors depicted” and suggested
that “an upward departure may be warranted.” (Emphasis added.) Defendant is fortunate that the
district judge rejected that possibility.
       21
          18 U.S.C. § 3553(a) requires that the court consider the following factors in determining
the particular sentence to be imposed:

       (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


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No. 07-6055
United States v. Mellies


reasons for imposing the sentence it did.

       “In order for an appellate court to effectively review the reasonableness of the sentence, there

must be an adequate explanation of the district court’s reasons for imposing the sentence.” United

States v. Williams, 432 F.3d 621, 622 (6th Cir. 2005). We have held that the district court “need not

explicitly reference each of the sentencing factors of § 3553(a)” when imposing sentence. United

States v. Thompson, 515 F.3d 556, 560 (6th Cir. 2008). Instead, “there must be sufficient evidence

in the record to affirmatively demonstrate” that the court considered them. Id. (quoting United States

v. Jones, 445 F.3d 865, 869 (6th Cir. 2006)). Stated differently, we “require some demonstration that

the court analyzed the § 3553(a) factors in relation to this particular defendant and some evidence

of a descriptive link between the defendant and the sentence imposed.” United States v. Mitchell,

232 F. App’x 513, 521 (6th Cir. 2007) (unpublished).

       Prior to the sentencing hearing, the United States Probation Office provided the district judge



               (D) to provide the defendant with needed educational or vocational
               training, medical care, or other correctional treatment in the most
               effective manner;

       (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.

                                                   - 35 -
No. 07-6055
United States v. Mellies


with a comprehensive presentence investigation report (“PSR”) containing detailed information

about Mellies’s history, the circumstances surrounding the crime of which he was convicted, and the

probation officer’s recommended sentence. An addendum to the PSR outlined the parties’

objections and the probation officer’s response to those objections. Both parties also filed sentencing

memoranda which set forth their respective positions about the appropriate sentence.

       The sentencing hearing itself was not cursory; rather, extensive testimony and argument was

heard about the amount of child pornography, the history and characteristics of defendant as reported

by three defense witnesses, including an examining psychiatrist, defendant’s wife, and sister. The

court then heard defendant’s objections to the PSR. It also heard his arguments for a downward

departure and the government’s arguments for an upward departure.

       We find it significant that the sentencing judge also presided over the jury trial. The judge

appropriately remarked twice at the sentencing hearing that he was “fully familiar with” the facts in

the case. He also stated that “I am satisfied that this is a case within the heartland.” After denying

the motions for upward and downward departures, the court made key findings:

       With respect to the argument of abhorrent behavior, I reject that argument . . . . This
       offense occurred over a period of time, repeated actions in downloading these
       images. And there are an extraordinary number of images, and all this business of
       child pornography is proscribed – the possession of it is proscribed conduct by the
       Congress. The fact that there is a consumer of this material, such as Mr. Mellies, is
       what puts the children who are the victims at risk. If there wasn’t a market for it and
       a consumer such as Mr. Mellies, the likelihood of the extensive distribution of this
       proscribed material would be greatly reduced.

                                                ***



                                                - 36 -
No. 07-6055
United States v. Mellies


        This involves criminal conduct that occurred over . . . at least six months, if not
        longer.

Thereafter, the court heard further arguments from both parties about the appropriate sentence and

adopted the PSR with one exception. After articulating the applicable Guidelines determinations,

the court unambiguously confirmed that it

        considered the provisions of Title 18 United States Code Section 3553. It’s fully
        familiar with the circumstances of the case, the characteristics of the Defendant, and
        the Court has considered all the other required provisions of Section 3553 with
        regard to tailoring a sentence that is appropriate to the case and the Defendant.

        And the Court is also conscious of the fact that the Guideline provisions are to be
        treated in an advisory capacity.

After imposing sentence, the court explained that “[t]he sentence is imposed for the purposes of

punishment, deterrence, and treatment.”

        Based on this record, we hold that the district court properly considered the § 3553(a) factors

and adequately explained its reasons for imposing the sentence it did.

                                                  B.

        Defendant also contends that his sentence is substantively unreasonable. “A sentence is

substantively unreasonable if the district court selects the sentence arbitrarily, bases the sentence on

impermissible factors, fails to consider pertinent § 3553(a) factors or gives an unreasonable amount

of weight to any pertinent factor.” United States v. Smith, 505 F.3d 463, 468 (6th Cir. 2007) (internal

quotations and citations omitted). Where, as here, the sentence is held to be procedurally sound, “a

challenge to the substantive reasonableness of a sentence is reviewed for abuse of discretion.”



                                                 - 37 -
No. 07-6055
United States v. Mellies


United States v. Olds, No. 07-4147, 2009 U.S. App. LEXIS 2227, at *19 (6th Cir. Feb. 6, 2009)

(unpublished) (citing Gall, 128 S. Ct. at 598).

       As grounds for his challenge to the substantive reasonableness of his sentence, defendant

merely reiterates his previous contention that the sentencing judge impermissibly based his sentence

on facts not determined by the jury. For the reasons already stated, that argument is meritless.

       Defendant also protests the district court’s denial of his motion for a downward departure.

However, he correctly concedes that a denial of a motion for downward departure is unreviewable

on appeal where, as here, the district court was aware of its discretion to depart downward and

decided against it. United States v. Madden, 515 F.3d 601, 610 (6th Cir. 2008).

       Finally, defendant argues that the § 3553(a) factors weigh in favor of a lesser sentence.

However, we afford a within-Guidelines sentence, such as the sentence defendant Mellies received,

a presumption of reasonableness. United States v. Vonner, 516 F.3d 382, 389 (6th Cir. 2008) (en

banc), cert. denied, 129 S. Ct. 68 (2008). Defendant has failed to rebut that presumption.

       Accordingly, we hold that the district court did not abuse its discretion in sentencing Mellies

to 96 months of imprisonment for possessing over 11,000 images and almost 200 videos of child

pornography.

                                                   IX.

       For the reasons stated, we affirm.




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