                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 12-4918


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CHARLES JOHNSON,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.      Alexander Williams, Jr., District
Judge. (8:11-cr-00552-AW-1)


Submitted:   April 17, 2013                 Decided:   April 25, 2013


Before WILKINSON, DUNCAN, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Matthew G. Kaiser, Rebecca S. LeGrand, Rachel A. Browder, THE
KAISER LAW FIRM PLLC, Washington, D.C., for Appellant.  Rod J.
Rosenstein, United States Attorney, LisaMarie Freitas, Special
Assistant United States Attorney, Greenbelt, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Charles Johnson appeals his convictions and subsequent

ninety-six-month sentence for receipt of child pornography, in

violation of 18 U.S.C.A. § 2252A(a)(2) (West Supp. 2012), and

for possession of child pornography, in violation of 18 U.S.C.A.

§ 2252A(a)(5)(B) (West Supp. 2012).            Johnson raises four issues

on appeal, claiming (1) that the district court erred in denying

his motion to suppress his inculpatory statements because he was

in custody when he made them and had not previously been warned

of his rights; (2) that the district court improperly denied him

his right to testify on his own behalf by barring him from

testifying that he sought out online child pornography for the

purpose of researching a book; (3) that the jury was improperly

instructed that merely viewing illicit materials online would

support    a    conviction   for   receiving    them;    and   (4)   that   the

district       court   inadequately   explained    its     chosen    sentence.

Concluding that any error committed by the district court was,

at worst, harmless, we affirm.

               Johnson first claims that the district court erred in

declining to suppress the statements he made to law enforcement

officers when he was interviewed in his bedroom while his house

was being searched pursuant to a warrant.               The district court’s

legal   conclusions      underlying   a   suppression     determination     are

reviewed de novo, while its factual findings are reviewed for

                                      2
clear error.        United States v. Guijon-Ortiz, 660 F.3d 757, 762

(4th Cir. 2011).           Because the district court denied the motion

to suppress, the evidence is construed on appeal in the light

most favorable to the government.                 United States v. Perkins, 363

F.3d 317, 320 (4th Cir. 2004).

              Although Johnson contends that he was “in custody” for

purposes      of    Miranda   v.     Arizona,      384      U.S.    436   (1966),     we

disagree.      Given that Johnson was informed that he was free to

leave, that he was interviewed in his own bedroom, that the door

to his bedroom was left open throughout the interview, and that

the   two     agents     interviewing        him     never    handcuffed        him   or

brandished weapons, we conclude that, on the totality of the

circumstances, a reasonable person in Johnson’s position would

have believed that he was at liberty to leave.                      United States v.

Hargrove, 625 F.3d 170, 178 (4th Cir. 2010); United States v.

Colonna,      511   F.3d    431,    435     (4th     Cir.    2007).       See    United

States v. Uzenski, 434 F.3d 690, 705 (4th Cir. 2006); United

States   v.    Parker,      262    F.3d    415,    419   (4th      Cir.   2001).      We

therefore     reject     Johnson’s        argument    that    the     district     court

improperly denied his motion to suppress.

              Second, Johnson claims that the district court denied

him his constitutional right to testify in his own defense by

barring him, under our decision in United States v. Matthews,

209 F.3d 338, 345-50 (4th Cir. 2000), from testifying that he

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viewed   child      pornography     only       in    the     course    of   conducting

research for a book he was writing.                        But even if we accept

Johnson’s constitutional characterization of this argument, but

see United States v. Malloy, 568 F.3d 166, 177 (4th Cir. 2009),

we cannot agree with him that exclusion of this evidence was so

“arbitrary”    or     “disproportionate”            that    it   deprived   him    of   a

right secured to him under the Constitution.                        United States v.

Woods, 710 F.3d 195, 200 (4th Cir. 2013).                       It was clearly within

the court’s prerogative to bar Johnson’s proferred testimony to

the extent it was offered to support a free-standing defense

under the First Amendment.           Matthews, 209 F.3d at 344.                   Accord

Boland v. Holder, 682 F.3d 531, 536 (6th Cir. 2012); United

States v. Holm, 326 F.3d 872, 874-75 (7th Cir. 2003).

           To the extent that Johnson’s testimony could tend to

refute the Government’s case that he “knowingly” downloaded the

illicit materials that he viewed online, see § 2252A(a)(2), the

asserted   purpose     motivating     Johnson’s            online   conduct   is    only

marginally relevant to the issue of scienter.                       And the district

court explicitly informed Johnson that he was free to testify

about matters much more salient to such a defense, leaving him

ample opportunity to testify, for example, that he was unaware

of computer technology to such a degree that he had no idea that

the   images     he    viewed    online        would       be    downloaded   to     his

computer’s hard drive.          Johnson declined to do so.

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            Thus,    even     if   the       district       court’s   ruling     was

overbroad, its overbreadth was minimal and deprived Johnson only

of evidence that was “marginally relevant” to his defense rather

than “important” to it.        Holmes v. South Carolina, 547 U.S. 319,

325, 326 (2006); United States v. Stever, 603 F.3d 747, 755 (9th

Cir. 2010).     Because Johnson’s proposed testimony was not vital

to the exercise of his constitutional right to testify on his

own   behalf,   we   reject    his   claim      that    the    district   court’s

conduct rendered that right meaningless.

            Johnson next challenges the district court’s decision

to instruct the jury that, for purposes of receipt of child

pornography     under   18     U.S.C.A.        § 2252A(a)(2),         “[r]eceiving

includes viewing an image online regardless of whether the image

is downloaded.”      This court reviews for abuse of discretion a

district court’s refusal to give a jury instruction, but reviews

de novo a claim that a jury instruction contained an incorrect

statement of the law.         United States v. Mouzone, 687 F.3d 207,

217 (4th Cir. 2012), cert. denied, 133 S. Ct. 899 (2013).

            We agree with Johnson that the jury instruction was

erroneous   inasmuch    as    it   relied      upon     a    single   sentence   in

United States v. Roszczipka, 473 F. App’x 211 (4th Cir. 2012)

(per curiam), without proper attention to its context.                    See id.

at 212 (“A defendant may ‘receive’ child pornography by viewing

it online, regardless of whether he downloads the material.”).

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The quoted language in Roszczipka speaks to § 2252A(a)(2)’s mens

rea requirement, not to the proper definition of “receipt.”                                       See

United States v. Osborne, 935 F.2d 32, 34 n.2 (4th Cir. 1991)

(observing that a defendant had received child pornography where

he “achieved the power to exercise dominion and control” over

it).    Roszczipka observes only that a defendant may “knowingly”

receive      child     pornography             by       viewing        it    online      with    the

knowledge that it will be saved — perhaps temporarily — to his

computer’s      hard       drive,           even    if     he     does       not   actively       or

purposefully download it.

              In ignoring this distinction, the instructions as they

were    phrased       in       this         particular          case        improperly     defined

“receipt,” ultimately informing the jury that Johnson could be

convicted     as     long      as      he    knowingly          viewed       illicit     materials

online,      even    if     he      did      not    knowingly          receive     them.          The

instructions         thereby            eliminated              the         requirement         under

§ 2252A(a)(2)        that      the      Government         prove,       circumstantially          or

otherwise, that Johnson knew that the images he viewed online

would   be    saved       to     his    computer         or     otherwise       come     into     his

possession.         See United States v. Ramos, 685 F.3d 120, 131 (2d

Cir.), cert. denied, 133 S. Ct. 567 (2012) (collecting cases);

United States v. Winkler, 639 F.3d 692, 696-99 (5th Cir. 2011)

(same).      This was error.



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           Nevertheless, we conclude that the flawed instruction

amounts   only   to   harmless   error   on   the   circumstances     of   this

case.     See Neder v. United States, 527 U.S. 1, 17-19 (1999);

United States v. Hornsby, 666 F.3d 296, 305 (4th Cir. 2012).

Axiomatically,    whether    a   defendant    knew    that   images    viewed

online would be saved to his computer is a close question only

where there is some indication that the images were saved there

without his knowledge.      If, for example, the evidence shows only

that the images were saved to the computer’s cache or temporary

internet folders and that the defendant made no effort to remove

them, or that the images were otherwise saved automatically to

locations inaccessible to a computer user, there may be some

reason to believe that the defendant did not “knowingly” receive

the images.      See, e.g., Ramos, 685 F.3d at 132; Winkler, 639

F.3d at 698; United States v. Pruitt, 638 F.3d 763, 766 (11th

Cir. 2011); United States v. Flyer, 633 F.3d 911, 919 (9th Cir.

2011); United States v. Dobbs, 629 F.3d 1199, 1201 (10th Cir.

2011); United States v. Bass, 411 F.3d 1198, 1205 (10th Cir.

2005).

           Here, by contrast, the issue of Johnson’s knowledge

was not a close call.       Not only did he admit to law enforcement

officials that he “actively download[ed]” child pornography for

the purpose of his sexual gratification, but the Government also

introduced evidence of the multiple sequential steps that were

                                     7
required for Johnson to access the files forming the basis of

his receipt charge, including downloading a file decompression

program, downloading an .RAR file containing numerous compressed

files, entering a password to open the .RAR file, and clicking

“extract” in order to decompress the individual files and access

them.   As for circumstantial evidence of Johnson’s knowledge,

the jury heard evidence that he had repeatedly sought and viewed

child pornography online and had even created a Microsoft Word

document   into   which   he   copied   and   pasted   child   pornography

images that he had previously downloaded.           See Ramos, 685 F.3d

at 132; Winkler, 639 F.3d at 699; Pruitt, 638 F.3d at 767.

           We are fully cognizant of the limited scope of our

inquiry in this respect: that we do not “become in effect a

second jury to determine whether the defendant is guilty,” but

instead merely determine “whether the record contains evidence

that could rationally lead to a contrary finding with respect to

the omitted element.”     Neder, 527 U.S. at 19.        Yet in this case

the evidence can only be described as one-sided, given Johnson’s

admissions, the demonstrated “pattern of child pornography and

receipt,” and the inability of Johnson’s cross-examination of

Government witnesses to put the issue of his intent seriously in

dispute.   Winkler, 639 F.3d at 699.          We are therefore convinced

beyond a reasonable doubt that, even if it had been properly

instructed, the jury would still have concluded that “this is

                                    8
not the exceptional case in which the government has persisted

in bringing a criminal prosecution against the unknowing victim

of a computer’s inner workings,” and would not have reached an

opposite conclusion as to Johnson’s guilt on the receipt count.

Id.     To the extent that Johnson argues that the impact of the

improper      jury   instruction        was       exacerbated         by    his    failure    to

testify on his own behalf, we observe that the district court

did not prevent Johnson from testifying about the issues most

salient to his proposed defense on the elements.                              As a result,

while    Johnson’s      decision       not        to    testify       may   have    had    some

adverse    effect       on    the      strength          of     his     rebuttal      to     the

Government’s case, any such effect was not occasioned by the

district court but was instead self-inflicted.

              Finally, Johnson attacks his downward variant sentence

as procedurally unreasonable.                      He contends that the district

court’s    explanation         of      its        chosen      sentence       insufficiently

considered his arguments that Johnson posed no social harm and

had amassed a good record of service to the community, and that

the   court    should      have     disregarded          U.S.     Sentencing       Guidelines

Manual     (“USSG”)          § 2G2.2         as        unfairly       imposing       outsized

enhancements         for       relatively              trivial         specific       offense

characteristics.        We have reviewed the record and conclude that,

although the district court “might have said more” to explain

its rejection of the various arguments that Johnson had raised

                                               9
before it, Rita v. United States, 551 U.S. 338, 359 (2007), its

explanation     was   elaborate    enough      “to   allow    [this     court]     to

effectively review the reasonableness of the sentence.”                        United

States   v.    Montes-Pineda,     445   F.3d    375,   380    (4th      Cir.    2006)

(internal      quotation   marks    omitted).          We     therefore        reject

Johnson’s challenge to his sentence.

              Accordingly, we affirm the judgment of the district

court.     We dispense with oral argument because the facts and

legal    contentions     are   adequately      presented     in   the    materials

before   this    court   and   argument      would   not    aid   the   decisional

process.

                                                                          AFFIRMED




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