                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4035


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

CHRISTOPHER MYERS,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, Senior District Judge.
(8:11-cr-00614-RWT-1)


Submitted:   January 31, 2014             Decided:   March 10, 2014


Before MOTZ, SHEDD, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James Wyda, Federal Public Defender, Joanna Silver, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellant.
Rod J. Rosenstein, United States Attorney, LisaMarie Freitas,
Special Assistant United States Attorney, Kristi O’Malley,
Assistant United States Attorney, Greenbelt, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Christopher     Myers        was       charged       in     a   three-count

superseding       indictment           with        knowingly          receiving        child

pornography, in violation of 18 U.S.C. § 2252A(a)(2) (2012),

knowingly      transporting     child         pornography,      in      violation      of   18

U.S.C.    §   2252A(a)(1)     (2012),          and   knowingly          possessing     child

pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) (2012).

A jury convicted Myers on all counts, and he received sixty-

month concurrent sentences on each.                    On appeal, he argues that

the evidence was insufficient to prove the he knowingly received

child    pornography.         He       also    contests      the      district       court’s

evidentiary ruling excluding the expert witness for which he

gave notice on the first day of trial.                         Finding no error, we

affirm.

              Myers was identified as part of an investigation into

the sale of child pornography via internet websites.                             The

count that Myers challenges states that, on or about October 22,

2006, through on or about November 20, 2006, Myers knowingly

received      child   pornography        and      material     that      contained     child

pornography as defined by 18 U.S.C. § 2256(8) (2012).                           This time

period     coincides     with      a     month-long       membership          that     Myers

purchased to a child pornography website called Sick Child Room.

In 2007, after his subscription to Sick Child Room had ended,

Myers purchased a new laptop computer, which authorities seized

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in 2010.        Myers does not dispute that the relevant visual images

found on the computer constitute child pornography.                                And, the

parties    stipulated        that    the    images       depict      real,        identified

victims,    and     were     produced      outside       the    State       of    Maryland.

Therefore, the only element Myers has contested at trial and on

appeal     is     whether    he     knowingly      received         child        pornography

between October 22, 2006, and November 20, 2006.

            Myers       argues      that    the     Government         relies       on    the

“extreme attenuation between the images available for Myers to

access in 2006 and the images found on his new computer in 2010”

and   contends      that     the    Government      does       not     have      any     other

evidence that Myers received pornography during that period.                               In

sum, Myers argues that the evidence is all circumstantial and is

insufficient       to   support      knowing      receipt      of    images       from    Sick

Child Room in 2006.

            There       is   no     question      that    Myers      “received”          child

pornography; the question is “whether that receipt was knowing.”

United States v. Winkler, 639 F.3d 692, 699 (5th Cir. 2011).

See also United States v. Whorley, 550 F.3d 326, 334 (4th Cir.

2008) (observing that there was “no . . . question” that a

defendant       “received”        child    pornography         where    the       defendant

“actively used a computer to solicit obscene material through

numerous    and     repetitive       searches     and    ultimately         succeeded       in

obtaining the materials he sought”); United States v. Osborne,

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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 them”).

            Because          18    U.S.C.       §   2252A       does      not   criminalize

inadvertent         receipt       or    possession       of    illicit     materials,     the

Government       must      present          proof   of     at     least     circumstantial

evidence    of      the    requisite          knowledge.         See   United    States       v.

Ramos, 685 F.3d 120, 131 (2d Cir.), cert. denied, 133 S. Ct. 567

(2012) (collecting cases); Winkler, 639 F.3d at 696-99 (same).

Thus, courts have reasoned that the mere presence of illicit

materials      in    a    computer’s         temporary        internet    cache,      standing

alone, is insufficient to establish knowing receipt, given that

the    files     could      have       been    saved     there     without      the     user’s

knowledge.       See, e.g., United States v. Flyer, 633 F.3d 911, 919

(9th Cir. 2011); United States v. Dobbs, 629 F.3d 1199, 1201

(10th Cir. 2011).            By contrast, a defendant’s attempts to delete

a computer’s temporary internet files and browsing history are

circumstantial           evidence       supporting       knowing       receipt     of    child

pornography, given that a defendant’s scrubbing of the evidence

indicates      some      degree        of   prior   awareness      that     images      viewed

online would be saved to his computer.                           See, e.g., Ramos, 685

F.3d at 132; United States v. Bass, 411 F.3d 1198, 1207 (10th

Cir.   2005).         Some    courts        have    also      suggested    that,      where   a

defendant repeatedly sought out child pornography, his conduct

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may serve as circumstantial evidence that he knowingly received

it,    regardless      of        the   fact    that        his    computer    contains      such

images only in its temporary internet cache or in unallocated

spaces.       See, e.g., United States v. Pruitt, 638 F.3d 763, 766

(11th Cir. 2011).

               Whether       a    defendant         knew    that    files    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.

               We conclude that, here, this issue is not close.                              The

core of Myers’ defense was that the Government only presented

circumstantial evidence that Myers knowingly received the files.

He    argues    it    is     unreasonable       to     believe       that    he    would    have

uploaded images to transfer them to a new computer only to later

delete most of them.               But the facts adduced at trial render this

defense unavailing.

               As    for    circumstantial           evidence       of   Myers’    knowledge,

investigators         discovered         a    plethora       of    child     pornography      on

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Myers’ computer, thus establishing that it was not by mistake or

error that the files were downloaded.                     See Ramos, 685 F.3d at

132     (holding       that    defendant        had    knowingly    received        child

pornography where he had viewed 140 images of child pornography

and had admitted to law enforcement that they would probably

find child pornography on his computer); Pruitt, 638 F.3d at 767

(holding that defendant had knowingly received child pornography

where he had repeatedly searched online for child pornography,

despite the fact that all of the images were located only in his

computer’s temporary internet cache and unallocated space).

            The     jury      learned   that      Myers       created   an   innocuous

folder name of “SATCOM,” a title related to his profession, to

store    most     of    his    directory    of        child    pornography,    clearly

indicating that he knew illegal images would be saved to his

hard drive.        Myers also created desktop shortcuts to his file-

share programs’ saved/shared folders.                         The Fifth Circuit has

observed that a defendant’s downloading of “dozens” of child

pornography        images,       stashing        the     files     in    unusual       or

password-protected locations on his hard drive, and creating a

file containing links to child pornography websites indicate “a

pattern    of      child      pornography       receipt”       suggesting    that     the

defendant also knowingly downloaded the particular files upon

which the receipt count was based.                     Winkler, 639 F.3d at 699.

The same principle applies here.

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            Finally, the computer forensic examiner who conducted

the investigation and search of Myers’ computer found over a

thousand files that were identical to child pornography images

available to members of the Sick Child Room website at the time

that Myers had access to it.                  While Myers argues that these

images were also available in file sharing programs and that he

did   not   necessarily       download    them      himself,    he    ignores    the

evidence found by the forensic examiner that the same files on

Myers’    computer      had   information      consistent      with   their     being

uploaded    to    his   computer   from       an   external   device.     We     thus

conclude that the evidence was sufficient to find that Myers

knowingly received child pornography during the relevant time

period.

            Next, Myers contests the district court’s evidentiary

ruling excluding the defense’s expert witness, an optometrist,

who would have opined on Myers’ condition of ocular albinism.

On the first day of trial, defense counsel gave notice to the

Government of Myers’ intent to call the optometrist as an expert

witness.         Myers argued that his impairment made it less likely

that he would commit a visual offense, such as the possession

and distribution of pornography.               He also argued that the jury’s

observations of his appearance and actions during trial (such as

involuntary eye movements and use of a monocular vision aid)

would be confusing and prejudicial without testimony to explain

                                          7
his   condition       to    the     jury.          The   Government      responded        that

because the proposed testimony involved a medical expert, Myers

was   required        to    give      notice       prior   to    trial    so     that     the

Government could have time to obtain its own expert and prepare

for cross-examination.               The district court did not permit the

optometrist      to    testify,        concluding        that    allowing      the    expert

testimony would prejudice the Government.                         The court, however,

permitted other defense witnesses, including Myers’ mother, to

testify   regarding         their     personal       knowledge     of    Myers’      limited

vision and use of a monocular for vision correction.

            We   review         a   district       court’s      ruling   to    exclude     an

expert witness based on the timeliness of notice for an abuse of

discretion.      See United States v. Holmes, 670 F.3d 586, 598 (4th

Cir.), cert. denied, 133 S. Ct. 426 (2012) (noting that, because

Fed. R. Crim. P. 16 is silent as to the timing of expert witness

disclosures, the appellate court reviews the district court’s

timeliness determination for abuse of discretion).

            Federal Rule of Criminal Procedure 16(b)(1) sets forth

a defendant’s duty to disclose information to the Government.

Under Rule 16(b)(1)(C), which deals with expert witnesses, “the

defendant     must,        at   the     government’s         request,     give       to   the

government a written summary of any testimony that the defendant

intends to use under Rules 702, 703, or 705 of the Federal Rules

of Evidence as evidence at trial, if—(i) the defendant requests

                                               8
disclosure       under        subdivision      (a)(1)(G)       and        the     government

complies;    or       (ii)    the    defendant      has    given    notice       under      Rule

12.2(b)     of       an    intent     to   present        expert    testimony          on    the

defendant’s          mental     condition.”           Under        Fed.     R.     Crim.     P.

16(d)(2)(C), “[i]f a party fails to comply with this rule, the

court may prohibit that party from introducing the undisclosed

evidence.”           “In addition to this specific authority, district

courts are to exercise their sound discretion in all rulings

related to the admission and exclusion of evidence, and this

Court will not reverse the decision to exclude such evidence

absent    abuse       of    that     discretion.”         Holmes,     670    F.3d      at    598

(citing United States v. Stitt, 250 F.3d 878, 896 (4th Cir.

2001)).

            The Government sought to exclude Myers’ expert because

of its inability to prepare a timely response to the expert’s

testimony; the insufficiency of the notice under Rule 16; and

prejudice       to    its    case     (based   on    its     inability      to     prepare).

Myers asserts that the Government was on notice that the defense

might    call    an       expert     witness   because       the    defense       relied      on

Myers’    ocular          albinism    in   challenging       the     admission         of   the

seized    computer,         arguing     that   he    could    not    read        the   written

consent provided to him.

            “[T]he case law is clear that it is not an abuse of

discretion for a trial court to disallow expert testimony where

                                               9
a   late    proffer    of      evidence     by    the   defense      substantially

prejudices the government in its ability to find its own expert

and conduct similar testing.”             United States v. Dorsey, 45 F.3d

809, 816 (4th Cir. 1995).              In United States v. Curry, 977 F.2d

1042, 1052 (7th Cir. 1992), the Seventh Circuit held that the

district     court    did   not    err     in    excluding       expert   testimony

regarding     the     reliability         of     eyewitness       identifications,

because, among other things, the defendants gave the government

only four days’ notice of their intent to call their witnesses.

            Similarly, we hold            that the district court did not

abuse its discretion in excluding Myers’ expert witness.                          See

United States v. Johnson, 617 F.3d 286, 292 (4th Cir. 2010)                       (“A

court has abused its discretion if its decision ‘is guided by

erroneous legal principles’ or ‘rests upon a clearly erroneous

factual finding.’” (quoting Brown v. Nucor Corp., 576 F.3d 149,

161 (4th Cir. 2009))) (internal quotation marks omitted).

            We therefore affirm the judgment.                    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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