              Case: 18-13403     Date Filed: 05/06/2019   Page: 1 of 16


                                                               [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 18-13403
                             Non-Argument Calendar
                           ________________________

                    D.C. Docket No. 3:17-cr-00089-BJD-JBT-1

UNITED STATES OF AMERICA,

                                                                   Plaintiff-Appellee,

                                        versus

JASON JAMES NEIHEISEL,

                                                                Defendant-Appellant.

                           ________________________

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

                                   (May 6, 2019)

Before MARCUS, WILSON and HULL, Circuit Judges.

PER CURIAM:

      Jason James Neiheisel appeals his conviction for distribution of child

pornography, in violation of 18 U.S.C. § 2252(a)(2) and (b)(1), following a jury trial.

On appeal, he argues that: (1) insufficient evidence supported his conviction and his
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uncorroborated confession could not be considered evidence of his guilt; (2)

prosecutorial misconduct permeated the trial because the government asked

improper questions, referenced inadmissible reports, improperly impeached

Neiheisel and his character witnesses, and made improper remarks during closing

argument; (3) the district court erred in denying his motion for a new trial based on

the weight of the evidence because it only considered the evidence under the legal

standard for a judgment of acquittal; (4) his trial counsel provided ineffective

assistance by failing to investigate a potential alibi defense; and (5) the cumulative

error doctrine compels reversal. After thorough review, we affirm.

      We review whether sufficient evidence supported a jury’s verdict de novo,

viewing the evidence in the light most favorable to the government and resolving all

reasonable inferences and credibility evaluations in favor of the verdict. United

States v. Foster, 878 F.3d 1297, 1303-04 (11th Cir. 2018). We also review rulings

on prosecutorial misconduct de novo. United States v. Nerey, 877 F.3d 956, 969

(11th Cir. 2017). We review a district court’s refusal to grant a mistrial and its denial

of a motion for a new trial for abuse of discretion. United States v. Grzybowicz, 747

F.3d 1296, 1304 (11th Cir. 2014); United States v. Newsome, 475 F.3d 1221, 1227

(11th Cir. 2007). When properly preserved, we review evidentiary issues for abuse

of discretion too. United States v. Jiminez, 224 F.3d 1243, 1249 (11th Cir. 2000).




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      But if the defendant failed to specifically object to testimony that he now

challenges on appeal, we review its admission only for plain error. United States v.

Langford, 647 F.3d 1309, 1325 n.11 (11th Cir. 2011). To establish plain error, the

defendant must show (1) an error, (2) that is plain, and (3) that affected his

substantial rights. United States v. Turner, 474 F.3d 1265, 1276 (11th Cir. 2007). If

the defendant satisfies these conditions, we may exercise our discretion to recognize

the error only if it seriously affects the fairness, integrity, or public reputation of

judicial proceedings. Id. An error is plain only if it is clear or obvious under current

law. United States v. Daniels, 685 F.3d 1237, 1251 (11th Cir. 2012).

                                           I.

      First, we are unpersuaded by Neiheisel’s claim that insufficient evidence

supported his conviction. A conviction must be affirmed if a reasonable fact-finder

could have reached a conclusion of guilt beyond a reasonable doubt. Foster, 878

F.3d at 1304. A jury is free to choose among reasonable constructions of the

evidence, so it is unnecessary that the government disprove every reasonable theory

of innocence. Id. We apply the same standard to assess the sufficiency of both direct

and circumstantial evidence, but a conviction based on circumstantial evidence must

be supported by reasonable inferences, and not mere speculation. United States v.

Martin, 803 F.3d 581, 587 (11th Cir. 2015).




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      Credibility determinations are left to the jury. United States v. Flores, 572

F.3d 1254, 1263 (11th Cir. 2009). We will not disregard them unless the testimony

is unbelievable on its face or incredible as a matter of law, meaning it contains facts

that the witness could not have possibly observed or events that could not have

occurred under the laws of nature. Id. If the defendant testified at trial, the jury is

free to disbelieve his statements and consider them as substantive evidence of his

guilt. United States v. Shabazz, 887 F.3d 1204, 1220 (11th Cir. 2018).

      A defendant’s uncorroborated confession alone is not enough to support a

conviction, and the government must introduce independent evidence to establish

the trustworthiness of the confession. United States v. Morales, 893 F.3d 1360,

1370-71 (11th Cir. 2018). But the corroborating evidence alone does not have to

prove the offense beyond a reasonable doubt or even by a preponderance of the

evidence. Id. at 1371. Instead, the corroborating evidence must only support the

defendant’s confession enough to justify the jury’s inference that it was true. Id.

The defendant’s admission may properly be considered where the surrounding

circumstances connect the defendant to the conduct he admitted. See United States

v. Green, 873 F.3d 846, 853-54 (11th Cir. 2017).

      A conviction for distribution of child pornography requires proof that the

defendant (1) knowingly distributed (2) images of a minor (3) depicting the minor

engaging in sexually explicit conduct (4) using a facility of interstate or foreign


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commerce.     18 U.S.C. § 2252(a)(2).        Knowingly placing or leaving child

pornography in a shared folder connected to a peer-to-peer network constitutes child

pornography distribution under § 2252(a)(2). United States v. Carroll, 886 F.3d

1347, 1353 (11th Cir. 2018). But the government must prove beyond a reasonable

doubt that the defendant knew he was sharing the files or that they were being

automatically distributed to the peer-to-peer network. See id. In Carroll, we held

that the presence of a peer-to-peer program alone was insufficient to prove the

defendant knew of the distribution where there was no evidence he had authorized

the file-sharing or recognized that his downloaded files were being shared. Id. at

1354. “Without some proof that the defendant consciously shared files, either by

authorizing their distribution or knowingly making them available to others, he

cannot be held liable for knowing distribution under Section 2252(a)(2).” Id.

      Here, it is undisputed that the child pornography charged in the indictment

was shared via a peer-to-peer network that was connected to an Internet Protocol

(“IP”) address registered to Neiheisel at an address where he resided during the

charged dates. It is also undisputed that no traces of child pornography were found

on Neiheisel’s tablet but a BitTorrent program, Vuze, had been installed on the

device. Because the government and Neiheisel presented two opposing versions of

Neiheisel’s statements about his downloading and sharing of child pornography




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using peer-to-peer software, the jury was required to make a credibility

determination about which version was true.

      We cannot say the jury’s guilty verdict was not supported by a reasonable

construction of the evidence. As the record reflects, testimony from two Federal

Bureau of Investigation (“FBI”) agents supported a finding that Neiheisel had

knowingly shared child pornography through a peer-to-peer network. See Carroll,

886 F.3d 1353-54. Agents Privette and MacDonald both testified that Neiheisel had

admitted that he had downloaded child pornography, specifically, the videos charged

in the indictment, and stored them in a shared downloads folder connected to a peer-

to-peer network. The agents added that Neiheisel told them that he periodically

deleted his child pornography because he knew it could potentially be shared and

discussed how the sharing mechanism worked. And while Neiheisel denied that he

ever said any of this to the FBI, the jury was free to make its own credibility

determinations, disbelieve Neiheisel’s testimony -- that he had never downloaded

child pornography, did not understand how BitTorrent worked, and never admitted

anything to the FBI about either -- and use it as substantive evidence of his guilt.

Shabazz, 887 F.3d at 1220. The jury’s guilty verdict reveals that it found the agent’s

version of events more credible and disbelieved Neiheisel’s version, a determination

that was supported by reasonable inferences drawn from the evidence.




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       In addition, sufficient independent evidence supports the truthfulness of

Neiheisel’s admissions to the FBI. See Morales, 893 F.3d at 1370-71. As we’ve

noted, the videos were downloaded from an IP address registered to Neiheisel at an

address where he resided on the charged dates, and a peer-to-peer networking

program was found on his tablet. See Green, 873 F.3d at 853-54. As for Neiheisel’s

reliance on expert testimony that the seized tablet contained no traces of child

pornography, the government was not required to prove what device was used to

distribute the child pornography, only that Neiheisel knowingly placed the child

pornography in a shared folder and knew that doing so gave others on the peer-to-

peer network access to the files. Carroll, 886 F.3d 1353-54. Because the FBI agents’

testimony supported the jury’s finding on knowledge, and Neiheisel does not dispute

that the downloaded files were child pornography, the government proved the

elements of distribution of child pornography beyond a reasonable doubt. 1

                                                II.

       We also find no merit to Neiheisel’s prosecutorial misconduct claims.

Prosecutorial misconduct only warrants a new trial if the prosecutor’s conduct was

(1) improper and (2) prejudicial to the defendant’s substantial rights. See Nerey,



1
  As for Neiheisel’s citations to cases from other circuits -- involving devices that multiple
people had access to -- those cases did not involve contradictory testimony that required the jury
to make a credibility determination. Because the sufficiency of the evidence in Neiheisel’s case
turns on the jury’s credibility determination, and not on evidence that multiple users had access
to the device that shared the child pornography, these cases are not instructive.
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877 F.3d at 970. The defendant’s substantial rights are prejudiced when there is a

reasonable probability that, but for the misconduct, the outcome of the trial would

have been different. Id. However, a curative instruction to the jury or substantial

evidence establishing guilt can counteract the prosecutor’s misconduct. See id.

Moreover, prosecutorial misconduct only requires reversal if it “permeate[s] the

entire atmosphere of the trial.” United States v. Bergman, 852 F.3d 1046, 1070 (11th

Cir. 2017) (quotation omitted).

      A mistrial is warranted if the defendant’s substantial rights are prejudicially

affected -- i.e., there is a reasonable probability that, but for the challenged conduct,

the outcome of the trial would have been different. Newsome, 475 F.3d at 1227.

When the district court gives a curative jury instruction, we will only reverse if the

evidence was so highly prejudicial that it was incurable. Id. If the record contains

sufficient independent evidence of guilt, any error was harmless. Id.

      It is improper for the government to ask a testifying defendant whether other

witnesses are lying. United States v. Schmitz, 634 F.3d 1247, 1268 (11th Cir. 2011).

But if the record reveals sufficient independent evidence of guilt, then the

government’s improper questions are deemed harmless because the questions did

not change the outcome of the trial and, thus, did not affect the defendant’s

substantial rights. United States v. Rivera, 780 F.3d 1084, 1097 (11th Cir. 2015).




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      Out-of-court statements offered for their truth are generally inadmissible as

hearsay. Fed. R. Evid. 801(a)-(c), 802. When those statements are made by and

offered against an opposing party, they are considered non-hearsay.               Id.

801(d)(2)(A). A prior statement that is inconsistent with a witness’s trial testimony

is not hearsay if it was given under penalty of perjury at a trial, hearing, or other

proceedings or in a deposition. Id. 801(d)(1)(A). A witness’s prior consistent

statement is admissible as non-hearsay if offered to rebut an expressed or implied

charge that the witness recently fabricated it. Id. 801(d)(1)(B)(i).

      Fed. R. Evid. 405(a) allows admission of evidence of a person’s character or

character trait through direct testimony about his reputation or through opinion

testimony. Id. 405(a). On cross-examination, a party may inquire into specific

instances of the person’s conduct. Id. Specific instances of conduct may also be

used to prove a character trait if it is an essential element of a charge, claim, or

defense. Id. 405(b). Specific instances of a witness’s conduct that relate to his

character for truthfulness or untruthfulness may only be admitted on cross-

examination if they are probative of the character for truthfulness or untruthfulness

of that witness or another witness whose character the witness being cross-examined

testified about. Id. 608(b). We will not reverse an erroneous evidentiary ruling if

the resulting error did not substantially influence the outcome of the trial and




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sufficient evidence independent of the error supported the verdict. See United States

v. Barton, 909 F.3d 1323, 1330-31 (11th Cir. 2018).

      Closing argument exists to assist the jury in analyzing the evidence. United

States v. Reeves, 742 F.3d 487, 505 (11th Cir. 2014). While a prosecutor may not

exceed the evidence presented at trial during his closing argument, he may state

conclusions drawn from the trial evidence. Id. A prosecutor may urge the jury to

draw inferences and conclusions from the evidence presented at trial. Rivera, 780

F.3d at 1100.      A prosecutor’s suggestion or comments are inappropriate if

“calculated to mislead or inflame the jury’s passions.” United States v. Azmat, 805

F.3d 1018, 1044 (11th Cir. 2015).

      In order to assess the prejudicial impact of a prosecutor’s statements, we must

evaluate them in the context of the trial as a whole and assess their probable impact

on the jury. United States v. Taohim, 817 F.3d 1215, 1224 (11th Cir. 2013)

(quotation omitted). A prosecutor’s remarks affect a defendant’s substantial rights

when there is a reasonable probability that, but for the remarks, the outcome of the

trial would have been different. Nerey, 877 F.3d at 970. A prejudicial remark may

be counteracted by substantial evidence establishing guilt or rendered harmless by

curative jury instructions. Id.

      Here, prosecutorial misconduct did not deprive Neiheisel of a fair trial because

the errors, if any, did not affect the outcome of the trial. As for the error in allowing


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the government to ask him six questions about whether the agents’ testimony was

truthful and in allowing the government to ask him whether the agents had fabricated

the statements in their reports, those questions did not affect Neiheisel’s substantial

rights. This is because the guilty verdict was supported by sufficient independent

evidence of guilt, including his confession, the IP address evidence, the password-

protected tablet and wireless home network, and his false testimony at trial. See

Rivera, 780 F.3d at 1097. Nor did the district court abuse its discretion in denying

Neiheisel’s motion for a mistrial based on these questions because the error was

harmless and the district court instructed the jury that they were to weigh the

credibility of the witnesses themselves.

      As for Neiheisel’s challenge to questions to or testimony by the FBI agents

referencing or quoting from their reports -- issues he did not object to below -- we

review for plain error, and can find none. Among other things, the evidence was

used properly as rebuttal testimony or to refresh the agents’ recollections, and in all

events, was harmless. As for Neiheisel’s challenge to questions to Neiheisel’s

character witnesses -- most of which he did not object to and we review for plain

error -- the government properly asked them about specific instances of conduct

related to Neiheisel’s character for truthfulness, in response their opinion testimony

on direct examination that Neiheisel was honest and law-abiding.




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      As for Neiheisel’s challenge to the government’s remarks in closing --

suggesting that Neiheisel could have had another computer -- he again did not object

to these below, and we again find no plain error. The record reveals that the

challenged remarks were not improper because they urged the jury to draw

reasonable inferences from the evidence. Rivera, 780 F.3d at 1100. The evidence

showed that child pornography had been downloaded from Neiheisel’s IP address

from a shared folder, Neiheisel had admitted to FBI agents that he had downloaded

and stored child pornography on his tablet, and a forensic review of the seized tablet

showed that it contained a file-sharing program but no child pornography. Thus,

based on this evidence, the government properly urged the jury to infer that the FBI

had “got the wrong computer” and that Neiheisel had “pulled a fast one” when he

gave them his tablet because the child pornography was on some other device.

Reeves, 742 F.3d at 505. Further, the challenged remarks did not “permeate” the

trial or even the government’s closing argument because they occupied a few

sentences of the government’s entire rebuttal. Bergman, 852 F.3d at 1070. In short,

Neiheisel has not demonstrated that the prosecutor’s conduct warranted reversal.

                                         III.

      We also reject Neiheisel’s claim that the district court erred in denying his

motion for a new trial. On the defendant’s motion, the district court may vacate the

judgment and grant a new trial if the interest of justice so requires. Fed. R. Crim. P.


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33(a). Motions for new trials based on the weight of the evidence are disfavored and

may only be granted if the evidence “preponderates heavily against the verdict, such

that it would be a miscarriage of justice to let the verdict stand.” Grzybowicz, 747

F.3d at 1310 (quotation and brackets omitted). We must affirm unless we find that

the district court made a clear error of judgment or applied the wrong legal standard.

Grzybowicz, 747 F.3d at 1305. But where the district court incorrectly applied the

standard for a judgment of acquittal, viewing the evidence in the light most favorable

to the government, to a motion for a new trial, we’ve nonetheless found that

application of that standard was harmless error because the grant of a new trial would

itself have been an abuse of discretion. United States v. Hernandez, 433 F.3d 1328,

1335-36 (11th Cir. 2005).       In Hernandez, the trial testimony presented two

conflicting stories, one of which supported the jury’s guilty verdict, so the evidence

did not preponderate heavily against the verdict. Id. at 1335-36. In addition,

although the district court in Hernandez had questioned the credibility of the

government’s witnesses in denying the motion for a judgment of acquittal and new

trial, it could not reweigh the evidence and set aside the verdict just because it felt

another result would be more reasonable. Id. at 1332, 1336.

      Here, we begin by noting that Neiheisel raised a motion for a new trial and a

motion for a judgment of acquittal in the same filing, and the district court applied

only the legal standard for a motion for a judgment of acquittal before dismissing


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both motions. But even though the district court did not separately discuss why it

was denying Neiheisel’s alternative motion for a new trial or the applicable legal

standard for that motion, any error in failing to do so was harmless. As we’ve

discussed in detail, the FBI agents and Neiheisel presented two conflicting stories at

trial, one of which supported the jury’s guilty verdict. Id. at 1335-36. On this record,

the district court would have abused its discretion had it granted a new trial because,

even if the district court had independently found Neiheisel’s version of events to be

more credible, the evidence did not preponderate heavily against the verdict where

one of the two conflicting versions of events supported the guilty verdict. Id. at

1336-37. Moreover, the court could not set the verdict aside simply because it felt

that it was more reasonable to believe Neiheisel. Id. at 1332, 1336. Thus, the district

court’s error in not specifying the legal standard it was using was harmless.

                                          IV.

      Next, we decline to consider Neiseisel’s ineffective-assistance-of-counsel

claim. To succeed on an ineffective-assistance claim, the defendant must establish

(1) that counsel’s performance fell below an objective standard of reasonableness

and (2) his deficient performance prejudiced the defense -- i.e., there’s a reasonable

probability that, but for counsel’s errors, the result of the proceeding would have

been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).

However, we will consider an ineffective-assistance claim on direct appeal only if


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that claim was sufficiently developed in the district court. United States v. Merrill,

513 F.3d 1293, 1308 (11th Cir. 2008). Typically, it is not, so we prefer to review

these claims on collateral attack of the conviction under 28 U.S.C. § 2255. Id.

       Here, we decline to consider Neiheisel’s ineffective-assistance claim because

it was not sufficiently developed in the district court. The only evidence related to

the basis for his ineffective-assistance claim -- that his attorney knew about but failed

to investigate a potential alibi -- was introduced during the ex parte hearing on the

attorney’s motion to withdraw. At that hearing, the attorney did not testify or

otherwise address his knowledge, or lack thereof, regarding the potential alibi.

Because, on this insufficiently developed record, we cannot determine whether the

attorney failed to act as an objectively reasonable attorney would in regard to the

alibi evidence, and because we typically prefer to review ineffective-assistance

claims in post-conviction motions, we decline to address Neiheisel’s ineffective-

assistance-of-counsel claim that he raises for the first time on appeal.

                                           V.

      Finally, we are unconvinced by Neiheisel’s cumulative error argument. The

cumulative effect of individual harmless errors requires reversal if, collectively, the

otherwise harmless errors affected the defendant’s substantial rights. United States

v. Capers, 708 F.3d 1286, 1299 (11th Cir. 2013). We will reverse a conviction for




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cumulative error if the cumulative effect of the district court’s errors was prejudicial,

even if each individual error was harmless. Azmat, 805 F.3d at 1045.

      Our review of the record reveals, at most, three harmless errors, as we’ve

mentioned above. But these errors, even when viewed together, did not affect

Neiheisel’s substantial rights because they did not affect the outcome of the trial.

Viewed along with the other evidence, the jury could still have reasonably credited

the FBI agents’ testimony over Neiheisel and found that he knowingly distributed

child pornography. Capers, 708 F.3d at 1299. Accordingly, we affirm.

      AFFIRMED.




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