     Case: 14-60804      Document: 00513276598         Page: 1    Date Filed: 11/18/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-60804                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                               November 18, 2015
                                                                           Lyle W. Cayce
                                                 Plaintiff - Appellee           Clerk

v.

JAMES ALLEN MYERS,

                                                 Defendant - Appellant



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:13-CR-93-1


Before JONES, SMITH, and SOUTHWICK, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
       James Allen Myers was convicted by a jury on seven counts of
transportation and possession of child pornography and sentenced to 360
months in prison. In this appeal, he challenges three aspects of his trial. First
and most significantly, he asserts the district court should have excluded all of
the Government’s child pornography evidence because the search and seizure
that led to its discovery was unconstitutional. Second, he contends that the
district court should have granted his motion for a mistrial following the


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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improper testimony of a government agent.         Finally, he argues that the
evidence was insufficient to support his child pornography convictions. All of
these challenges fail and we AFFIRM his conviction and sentence in full.
                                 BACKGROUND
      In fall 2013, agents of the U.S. Department of Homeland Security,
Homeland Security Investigations (“HSI”) were conducting an investigation
into an internet site known as a haven for child pornography. During their
investigation, agents discovered that an IP address registered to James Allen
Myers at an apartment in North Port, Florida had uploaded images of child
pornography onto that site. In late August, these Florida-based HSI agents
executed a federal search warrant at the North Port apartment. Though they
came up empty-handed, they learned that Myers had recently moved to
Carriere, Mississippi. Intriguingly, they also learned that Myers may have
removed the hard drive from a computer in the North Port apartment and
taken it with him to Carriere.
      The Florida-based agents contacted HSI Special Agent Danyelle Evans
in Mississippi and requested her help in locating Myers and the missing hard
drive. The Florida-based agents did not have a good address for Myers, just a
description of him and his truck and a rough location in Carriere where he
might be living. Using this information, Evans and her small team were able
to locate Myers.
      They found Myers sitting on the front porch of the house where he rented
a room. The agents identified themselves and told Myers they were there as
part of a child pornography investigation. They next told Myers that a search
warrant had been executed at the Florida apartment that morning and they
knew a hard drive had been removed from a computer there and brought to
Carriere. Evans then asked Myers point blank if he had that hard drive and


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                                No. 14-60804
Myers responded that he did. Evans asked if Myers would show her where it
was and Myers stood up, gestured, and led her to his room.
      Once in his room, Myers pointed to a pair of hard drives sitting in an
open closet. Evans and another agent entered the room and examined the hard
drives that Myers had pointed out. In the middle of this, Evans took time to
look around Myers’s room. She saw things similar to incriminating items she
had located during other child pornography investigations. For instance, she
saw a number of VHS tapes, including one labeled “A Little Princess.” She also
saw CDs and DVDs with handwritten titles stacked on top of a computer. She
saw a spiral notebook that appeared to be a ledger, possibly recording and
organizing a collection of child pornography.
      Evans and the other agents moved the hard drives onto the bed. They
also began to move some of the other things onto the bed. At this point, Myers
asked them again about the subject of their investigation.          The agents
reiterated that it was a child pornography investigation and also told Myers
they would need to seize all the suspicious items in his room. Apparently this
cast their visit in a new light because Myers asked one of the agents if they
needed a search warrant. The agent replied that they did not because he had
consented to their being in the bedroom. At that point, Myers told the agents
he was revoking their consent to be there.
      The agents left the room and, along with Myers, waited outside of the
house. They left the hard drives and other suspicious items in the room. The
HSI agents asked a local sheriff’s detective who had been helping them with
their investigation to go and apply for a state search warrant. Evans testified
at the suppression hearing that they sought the warrant out of an “abundance
of caution.”   After the warrant was signed by a state judge, the sheriff’s
detective called Evans and told her he had a warrant for Myers’s bedroom.


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      Evans and her team reentered the home and seized a number of
electronic items, including the hard drives, CDs, DVDs, VHS tapes, and a pair
of computers. The seized items were removed from Myers’s bedroom and taken
to HSI offices. Before the electronic items were searched or otherwise viewed,
a separate federal search warrant authorizing that examination was obtained.
      Based on the evidence obtained from searching the electronic items,
Myers was indicted on one count of transporting child pornography in violation
of 18 U.S.C. § 2252(a)(1) and six counts of possessing child pornography in
violation of 18 U.S.C. § 2252(a)(4)(B).
      Prior to trial, Myers moved to suppress the evidence obtained from his
bedroom on two grounds, only one of which he ultimately pursues on appeal.
Myers argued that the search warrant did not describe the things to be seized
with particularity. Myers argued further that the warrant was so facially
invalid that no reasonable officer would have relied on it and thus the good
faith exception did not save the evidence involved.
      The district court held a hearing on the motion to suppress. Over the
course of two days, two HSI agents (including Evans) and the sheriff’s detective
testified. Myers offered no witnesses, though his counsel vigorously cross-
examined the witnesses who did testify.         The district court also heard
argument from both the Government and Myers.
      The district court denied the motion to suppress based on the following
conclusions of law:
      • Myers consented to federal agents’ being in his room and seizing
        the hard drives.

      • Myers withdrew his consent after federal agents seized the two
        hard drives.

      • The warrant obtained by the sheriff’s detective was deficient
        because it did not particularly describe the items to be seized.

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      • The hard drives were seized in plain view during a valid consent
        search of Myers’s room.

      • The remaining items seized were in plain view when the agents
        were in Myers’s room looking for the hard drives.

      • The warrant was not so deficient that every reasonable officer
        would have known it was deficient and thus, alternatively, the
        good faith exception applies.

      Following his conviction, Myers re-urged his suppression arguments
under Federal Rules of Criminal Procedure 20 and 33 seeking a judgment of
acquittal or new trial. The district court denied both motions in a written order
reiterating its rulings. Myers timely appealed to this court.
                                DISCUSSION
      I.    Fourth Amendment claims.
      Myers primarily challenges the district court’s refusal to suppress the
evidence other than the hard drives seized from his room. He argues that the
district court’s ruling on the good faith exception was erroneous because the
state court warrant’s lack of particularity was so blatant that no reasonable
officer could have relied on the warrant. Myers’s position is doomed because
he failed to challenge the district court’s alternative grounds for seizure both
on appeal and in the district court.
      Myers fails to meaningfully brief the district court’s consent and plain
view rulings in this appeal, as he focuses almost exclusively on the good faith
exception. But in addition to relying on the good faith exception, the district
court also held that the evidence seized in this case was obtained by a consent
search and within the plain view doctrine. These rulings were issued orally at
the hearing and in the written post-trial order. Myers marks his disagreement
in his opening brief that any evidence was seized by consent, then proceeds
exclusively to discuss the good faith issue. In a direct criminal appeal, an

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appellant waives arguments not adequately briefed.         See United States v.
Scroggins, 599 F.3d 433, 446–47 (5th Cir. 2010) (collecting cases).             By
effectively ignoring the consent search and plain view rulings, Myers has
waived his objections to them.
      Even if he had briefed the district court’s consent and plain view rulings
on appeal, Myers also did not adequately raise these issues in the district court.
His motion argued that that evidence should be suppressed for lack of probable
cause underlying the warrant and the warrant’s failure to describe the items
with particularity. At the suppression hearing, the Government clearly argued
both consent and plain view. Myers responded that since the warrant return
listed all the items ultimately seized, they must have been seized under the
warrant rather than during any consent search or plain view seizure. In any
event, Myers continued, plain view is more applicable to drug cases. Myers
focused essentially on the invalid warrant and the inapplicability of the good
faith doctrine. This court has held that “failure to raise specific issues or
arguments in pre-trial suppression proceedings operates as a waiver of those
issues or arguments for appeal.” Id. at 448 (emphasis omitted) (quoting United
States v. Pope, 467 F.3d 912, 918–19 (5th Cir. 2006)). Thus, Myers also waived
his objections to the alternative grounds for the district court’s ruling.
      Myers has waived any appeal on the consent and plain view rulings. But
in criminal cases involving waiver, this court has discretion to correct the
district court’s unobjected-to error if the error is plain and affects substantial
rights. Id. at 449. “Plain” means the error is “clear or obvious, rather than
subject to reasonable dispute.” Puckett v. United States, 556 U.S. 129, 135,
129 S. Ct. 1423, 1429 (2009). Here, assuming for argument’s sake that (1) the
scope of the consent search only extended to the computer hard drives specified
in the federal warrant, and (2) the district court’s ruling on plain view was
error, it was subject to reasonable debate and thus not “plain.”
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      The plain view doctrine allows law enforcement to seize items without a
warrant if the officers 1) “lawfully entered the area where the items could be
plainly viewed;” 2) “the incriminating nature of the items [to be seized] was
immediately apparent;” and 3) “the officers had a lawful right of access to the
items.” United States v. Conlan, 786 F.3d 380, 388 (5th Cir. 2015) (quoting
United States v. Waldrop, 404 F.3d 365, 368 (5th Cir. 2005)).
      In this appeal, the first and third factors are met because Myers
consented to federal agents’ coming into his room. In fact, Myers did not revoke
his consent until federal agents had already started to move some of the items
they intended to seize.    The district court heard two agents testify about
Myers’s consent. This testimony was neither undermined by Myers’s counsel,
nor contradicted by other witnesses. It was at the very least debatable and not
plainly erroneous for the district court to conclude that federal agents were
lawfully present in his room and had a lawful right of access to the electronic
items that were eventually seized.
      As to the second factor, it was also not plainly erroneous for the district
court to find that the incriminating nature of the items was immediately
apparent to these federal agents.      An item is immediately apparent as
incriminating if “officers have probable cause to believe that the item is either
evidence of a crime or contraband.” Id. (internal quotation marks omitted)
(quoting Waldrop, 404 F.3d at 369). This probable cause analysis is a common-
sense one and “the evidence . . . must be seen and weighed not in terms of
library analysis by scholars, but as understood by those versed in the field of
law enforcement.” Illinois v. Gates, 462 U.S. 213, 232, 103 S. Ct. 2317, 2329
(1983) (quoting United States v. Cortez, 449 U.S. 411, 418, 101 S. Ct. 690, 695
(1981)).
      Federal agents testified during the suppression hearing that they knew
Myers was suspected of “uploading images . . . [of] child pornography to an
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image sharing web site.”      Thus, when agents arrived in Myers’s bedroom
looking for a computer hard drive, they knew it was part of a larger computer-
based child pornography investigation. When Myers led them directly to the
hard drive, they looked around and saw other computer and electronic
hardware, as well CDs, DVDs, and VHS tapes capable of holding computer
files, images, or videos. One of these VHS tapes was labeled “A Little Princess,”
a title easily construed as referring to child pornography. Evans testified that
these things were “very similar” to things collected in other child pornography
investigations. The district court directly credited Agent Evans’s “training and
experience” as giving “her reason to believe those materials were of such a
nature that they could constitute . . . evidence of [child pornography].” At the
very least, it was debatable and not plainly erroneous for the district court to
conclude that probable cause existed.
      The district court’s conclusion on probable cause is supported by United
States v. Conlan.    786 F.3d at 388.        In Conlan, law enforcement officers
investigating a stalking case were aware that the defendant was sending the
victim harassing emails and text messages. Id. During a protective sweep of
the defendant’s hotel room, officers seized his computer and cellular phone. Id.
The defendant argued that the incriminating nature of these everyday items
was not immediately apparent. Id. Not true, this court concluded. For officers
well-versed in the investigation of stalking crimes, and the facts of this crime
in particular, there was probable cause to believe those items constituted
evidence of a crime. Id.
      At oral argument, Myers’s counsel raised, for the first time, an
interesting issue: is this plain view analysis altered by the timeline in this case,
where officers were present in the house with consent and saw incriminating
items, but then left the house without seizing the items? However, the district
court did not plainly err in its implicit holding that the plain view analysis is
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not altered by this chronology. First, such a holding comports with this court’s
precedent. See, e.g. United States v. Mendoza-Burciaga, 981 F.2d 192, 195 (5th
Cir. 1992) (where the cocaine was in plain view during a protective sweep, the
officers could seize it without a warrant, and thus there was no need to address
the further issue whether the warrant they subsequently obtained was
defective).
      Additionally, the Fourth Amendment’s “ultimate touchstone” is
reasonableness. See Heien v. North Carolina, 135 S. Ct. 530, 536 (2014). Here,
police had consent and plainly viewed evidence of a crime, then left the house,
but remained immediately outside. Police maintained “dominion and control”
over the electronic items because the scene was secure and no one was allowed
access to the items while the warrant was obtained. See United States v.
Jacobsen, 466 U.S. 109, 120, 104 S. Ct. 1652, 1660 (1984). The seizure of these
items under the plain view doctrine was reasonable. It was at the very least
debatable that the district court’s plain view analysis should not have been
altered by the timing of the seizure, thus any conceivable error was not plain.
      Because Myers waived his objections to the consent search and plain
view rulings of the district court and these rulings are not plainly erroneous,
the evidence should not have been suppressed.
      II.     Denial of Mistrial.
      Myers objects to testimony by Agent Evans that one of the CDs removed
from Myers’s bedroom contained “images of sexual exploitation of a minor.”
Myers argues that this description was testimony on an ultimate issue in the
trial and thus prohibited. Because of the prejudicial nature of this testimony,
Myers moved for a mistrial. He now appeals the district court’s denial of a
mistrial.
      This court reviews for an abuse of discretion a district court’s denial of a
mistrial after improper evidence has been submitted to the jury. See United
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States v. Zamora, 661 F.3d 200, 211 (5th Cir. 2011). This evaluation has two
parts: the characteristics of the improper evidence itself and the strength of
the other evidence in the case. Id. The district court may have abused its
discretion only “if there is a significant possibility that the prejudicial evidence
had a substantial impact upon the jury verdict” when “viewed in light of the
entire record.” Id. (quoting United States v. Paul, 142 F.3d 836, 844 (5th Cir.
1998)).
      Assuming for argument’s sake that Evans’s testimony was improper, the
district court did not abuse its discretion in failing to order a mistrial. The
testimony was a six-word description that introduced no new information to
the case—in a child pornography trial, surely the jury was expecting to hear
that the government (and its witnesses) believed the defendant possessed child
pornography. Further, the district court immediately instructed the jury to
disregard and not consider the offending testimony. The court twice asked the
jury if they understood the instruction and received no indication they did not.
It is axiomatic that juries are presumed to follow the court’s instructions. See
Zafiro v. United States, 506 U.S. 534, 540, 113 S. Ct. 933, 939 (1993).
      Most significantly, the jury did not have to take Evans’s word about what
was on the CD: within minutes of her fleeting use of law enforcement jargon,
jurors were viscerally exposed to five videos and eleven images from the CD.
When the Government asked Evans to describe one of the pictures, Myers
made a sustained objection, stating “[T]he picture speaks for itself.” This court
agrees. Combined with other strong evidence of Myers’s guilt, there is no
significant possibility that this testimony had a substantial impact on the jury
and the district court did not err by denying a mistrial.
      III.   Sufficiency of the Evidence.
      Myers’s contends that the Government presented no evidence that he
“knowingly” transported or possessed child pornography. Myers argues a lack
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of crucial evidence that Myers accessed the images themselves; the
government only proved that Myers knowingly possessed the devices where
the images were stored. Myers asserts that he could be in possession of the
devices, but not knowingly in possession of the images if the computers were
not password protected or if the internet connection Myers accessed in Florida
was used by various other people.
      When properly preserved, this court reviews a sufficiency of the evidence
challenge de novo. United States v. Woerner, 709 F.3d 527, 535 (5th Cir. 2013).
This review examines whether a rational jury “could have found that the
evidence established the essential elements of the offense beyond a reasonable
doubt.” Id. This court views the evidence “in the light most favorable” to the
jury’s verdict and draws “all reasonable inferences from the evidence to support
the verdict.” Id. In this case, the only question is whether there was sufficient
evidence to allow the jury to infer guilty knowledge beyond a reasonable doubt.
Unquestionably, there was:
      • Myers was the account holder of the IP address that uploaded
        images of child pornography onto the internet.

      • Myers’s email address was tied to postings on the website where
        the IP address had uploaded child pornography.

      • Among the images found on the CDs in Myers’s room were
        pornographic pictures of children he previously babysat in
        Florida.

      • Child pornography was found on a number of different forms in
        Myers’s room in Mississippi, including on CD, on a hard drive,
        and on a computer.

      • More than 20,000 images of nude or partially nude children
        were found in Myers’s possession in Mississippi.




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      Myers’s alternative explanations for how his computer or hard drive
might have come to contain child pornography do him no good on appeal. These
theories were presented at trial and rejected by the jury when they returned a
guilty verdict on all counts.   There is sufficient evidence to support their
decision to weigh the competing theories and “credit the prosecution’s case.”
Id. (quoting United States v. Winkler, 639 F.3d 692, 700 (5th Cir. 2011)).
                                CONCLUSION
      For the above reasons, all of Myers’s challenges to his conviction fail. He
raises no challenges to his sentence. His conviction and sentence are therefore
AFFIRMED.




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