USA v. Brian Harling

Filing

Opinion issued by court as to Appellant Brian Robert Harling. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-10969
________________________
D.C. Docket No. 2:13-cr-00096-SPC-CM-1

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BRIAN ROBERT HARLING,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(August 28, 2017)
Before TJOFLAT and ROSENBAUM, Circuit Judges, and REEVES, * District
Judge.
PER CURIAM:
*

The Honorable Danny C. Reeves, United States District Judge for the Eastern District of
Kentucky, sitting by designation.

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Defendant-Appellant Brian Robert Harling appeals his conviction and
sentence for knowingly possessing materials depicting minors engaged in sexually
explicit activity, in violation of 18 U.S.C. §§ 2252(a)(4)(B) and (b)(2). He makes
four arguments on appeal. First, he argues that the district court erred in denying
his motion to suppress five USB drives after the drives were seized and searched
without a warrant. Second, he asserts that the district court should have granted his
motion for judgment of acquittal because the government failed to prove that he
knowingly possessed the USB drives, that he knew that the visual depictions were
of minors engaged in sexually explicit conduct, or that he actually appeared in any
of the videos. Third, he contends that the district court abused its discretion by
refusing to give a “mere presence” jury instruction. And finally, Harling argues
that his sentence of 240 months’ imprisonment followed by a lifetime of
supervised release is substantively unreasonable. After careful consideration, and
with the benefit of oral argument, we affirm Harling’s conviction and sentence.
I.
A. Facts1
In 2013, Nicole Dunwody2 saw a listing on Craigslist advertising a
condominium unit for rent in Fort Myers, Florida. Harling occupied the unit at the
time but was looking to rent it out because he had just purchased a new home.

1

These facts are taken primarily from the hearing on Harling’s motion to suppress.
2

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Nicole decided to rent the unit from Harling and coordinated with him to
move in her belongings. Soon after she moved in, Nicole bumped the door frame
of a closet in the residence and heard something fall to the floor. She looked down
and saw that three USB drives had fallen from the top of the door frame inside the
closet.
Nicole took the three USB drives to her mother Ada Dunwody’s house.
There, Ada plugged the first of three drives into her computer, and large thumbnail
images loaded onto the screen. She and Nicole scrolled through the contents of the
first drive and saw images of what they described as small children in unnatural,
sexually suggestive poses engaging in sexually explicit conduct with adults.
After viewing at least thirty thumbnail images, Nicole decided she had seen
enough and called the police. Meanwhile, Ada continued to view the contents of
the two remaining USB drives. After scrolling through the contents of the second
drive, which Ada also described as containing images and videos of young children
in unnatural, sexually explicit poses, Ada estimated that she had seen well over 100
images and videos. The third drive contained more videos, but it also had a file
type that Ada did not recognize. Afraid of inadvertently downloading something
unknown onto her computer, Ada removed the third USB drive from her computer

2

The fact in this case involve more than one person with the last name “Dunwody.” For
clarity, we refer to each by her first name.
3

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and placed all three USB drives in a plastic bag for delivery to the police. She did
not really probe into the contents of the third USB drive.
Nicole and Ada agreed to meet Fort Myers Police Officer Domonic Zammit
at Nicole’s condominium. When Officer Zammit arrived, Nicole informed him
that Harling owned the condominium unit and had resided in it before she did, a
fact that Officer Zammit confirmed when he called and spoke with Harling over
the phone. Nicole also gave Officer Zammit the plastic bag containing the three
USB thumb drives and explained that she and her mother had seen, between the
two of them, explicit images and videos of children engaged in sexual acts. Nicole
then showed Officer Zammit the closet from which the three USB drives had
fallen. When he looked up into the closet, Officer Zammit discovered two more
USB thumb drives in the same location at the top of the door frame inside the
closet.
Officer Zammit returned to the Fort Myers Police Department with the five
USB drives and along with his supervisor, Sergeant Doro, reviewed them. They
opened one image file and one video file on each of the five drives to confirm that
all five contained child pornography. Officer Zammit then submitted the five
drives into evidence, ending his involvement in the investigation.
Soon after that, Detective Meeks, a member of the computer-crimes unit,
retrieved the five USB drives from the evidence custodian and, after reviewing
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Officer Zammit’s report, conducted a limited forensic preview to confirm the
presence of child pornography on the drives and to determine the owner of them.
He confirmed the presence of images and videos of child pornography on all five
drives, including a series of images of a particular minor child being sexually
abused by a particular adult male on the first USB drive. He also noted a file on
the fourth drive that contained Harling’s business card.
Detective Meeks observed that many of the images had file names in a
sequential numerical order, which indicated to him that the images were
homemade—rather than downloaded from the internet—and taken with a single
camera. Because he knew from Officer Zammit’s report that Harling was the
previous resident of the condominium unit, Detective Meeks obtained Harling’s
driver’s license photograph and confirmed that Harling was the adult in the series
of pornographic images involving the particular minor child.
He then contacted the Department of Homeland Security (“DHS”) for
assistance in locating Harling. DHS agents accessed Harling’s public Facebook
page and found profile pictures of Harling that matched the adult male observed in
the photographs contained on the USB drives, providing further confirmation that
Harling was the adult male featured in the pornographic images on the USB drives.
Detective Meeks then met with Nicole and Ada, who shared with him the specific
details of what they had observed on the USB drives.
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Law-enforcement officers eventually learned Harling’s address and visited
him at his home on July 11, 2013. After being advised of his rights, Harling
agreed to speak with the agents. They showed him multiple images that they had
downloaded from Facebook, of a young boy whom Harling identified as his stepgrandson. That same boy was the minor child who appeared in the series of
homemade pornographic images discovered on the USB drives. 3
Later that same day, Detective Meeks prepared an affidavit for a search
warrant to conduct a complete forensic examination of all five USB drives. His
affidavit included the detailed descriptions conveyed to him by both Nicole and
Ada regarding exactly what they had seen on the USB drives. After obtaining the
warrant, Detective Meeks conducted a more thorough forensic examination of all
five USB drives and found that they contained hundreds of images of child
pornography and over forty videos, including hundreds of images of Harling
sexually abusing his step-grandson.
On the basis of these findings, authorities applied for and were granted a
second warrant to search Harling’s residence for additional computer equipment
and data, which they executed on July 12, 2013. Inside his home, authorities
observed furniture, bedding, and other household décor that matched the furniture,

3

Harling’s adult son confirmed that the young boy from the pictures on the USB drives
was Harling’s step-grandson. He also confirmed that another minor child observed in the images
on the USB drives, a young girl, was Harling’s step-granddaughter.
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bedding, and household décor that appeared in several photographs recovered from
the USB drives. Those observations led authorities to obtain a third search warrant
that same day to search Harling’s residence for specific items matching items
previously seen in the images and videos stored on the USB drives.
B. Procedural History
A federal grand jury returned an indictment charging Harling with one count
of knowingly possessing child pornography, in violation of 18 U.S.C. §§
2252(a)(4)(B) and (b)(2). Harling moved to suppress the contents of the five USB
thumb drives, as well as any evidence gathered from his residence. The district
court denied Harling’s motion to suppress.
Harling proceeded to trial. At the close of the Government’s case, he moved
for a judgment of acquittal, arguing that the evidence presented failed to establish
that he possessed the USB drives. Harling also renewed his objections to the
district court’s denial of his motion to suppress. The district court denied his
motions and his request for a “mere presence” jury instruction.”
The jury found Harling guilty after a two-day trial.

The Presentence

Investigation Report (“PSI”) prepared before Harling’s sentencing hearing
calculated an adjusted offense level of 44, which was treated as an offense level 43
pursuant to U.S.S.G. Ch. 5, Pt. A, comment n. 2. Harling did not have any prior
criminal convictions and was assigned a criminal-history category of I.
7

The

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resulting guideline sentence was originally life in prison.

But because the

maximum term of imprisonment for a conviction under 18 U.S.C. §§
2252(a)(4)(B) and (b)(2) is 20 years, Harling’s guideline term of imprisonment
was 240 months, with a supervised-release term of between five years and life.
Prior to his sentencing hearing, Harling filed a sentencing memorandum
wherein he requested a sentence of no more than twenty years.

At the sentencing

hearing, neither the government nor Harling made any objections to the PSI. After
considering the Sentencing Guidelines and the factors identified in 18 U.S.C. §
3553(a), the district court sentenced Harling to 240 months’ imprisonment,
followed by a lifetime term of supervised release. Harling raised no objections to
his sentence. He now appeals his conviction and sentence.
II.
A. Motion to Suppress
On appeal, Harling argues that his rights under the Fourth Amendment were
violated when law-enforcement officers seized and then searched his personal
property without first obtaining a warrant. He makes the following arguments in
support of his position: (1) he did not abandon the five USB drives, so he retained
a reasonable expectation of privacy in them; (2) no exigent circumstances existed
necessitating a search of the USB drives without first obtaining a search warrant;
(3) the searches performed by law-enforcement officers before obtaining a search
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warrant exceeded the scope of the private-party searches conducted by Nicole and
Ada; and (4) the affidavits used to obtain the search warrants included false and
misleading statements, rendering them void.
A district court’s ruling on a motion to suppress presents a mixed question
of fact and law. United States v. Garcia-Bercovich, 582 F.3d 1234, 1238 (11th
Cir. 2009). We review a district court’s factual findings for clear error and its
application of the law to those factual findings de novo. Id. In applying the law to
the facts, we construe the facts in the light most favorable to the party that
prevailed in the district court—in this case, the Government. See United States v.
Mathis, 767 F.3d 1264, 1274–75 (11th Cir. 2014); United States v. Laist, 702 F.3d
608, 612 (11th Cir. 2012).
Courts generally prohibit the government from introducing at trial evidence
gathered as a result of a search or seizure that violated the Fourth Amendment. Pa.
Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 362 (1998).

But the Fourth

Amendment applies to only governmental action; “it is wholly inapplicable to a
search or seizure, even an unreasonable one, effected by a private individual not
acting as the agent of the Government or with the participation or knowledge of
any governmental official.” United States v. Jacobsen, 466 U.S. 109, 113 (1984)
(quotation omitted). Once a private individual, acting of her own accord, conducts
a search—even one that frustrates a defendant’s reasonable expectation of
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privacy—the Fourth Amendment does not forbid the government from replicating
the search, as long as government officials constrain their search to the parameters
of the search conducted by the private individual. United States v. Young, 350
F.3d 1302, 1306–07 (11th Cir. 2003); Jacobsen, 466 U.S. at 115. As a result, “a
warrantless law-enforcement search conducted after a private search violates the
Fourth Amendment only to the extent to which it is broader than the scope of the
previously occurring private search.” United States v. Sparks, 806 F.3d 1323, 1334
(11th Cir. 2015), cert. denied, 136 S. Ct. 2009 (2016), cert. denied sub nom.
Johnson v. United States, 137 S. Ct. 34 (2016).
Here, Harling contests the search of all five USB drives—the three
discovered and viewed by Nicole and Ada and the two later discovered in the same
location by Officer Zammit and viewed by law-enforcement officers in the first
instance. As an initial matter, we agree that Harling did not abandon the USB
drives.
But Nicole and Ada are private citizens who acted of their own accord when
they viewed the contents of the first two USB drives.

Therefore, law

enforcement’s subsequent search of the first and second USB drives, after listening
to Nicole and Ada describe in detail what they had observed, was not violative of
the Fourth Amendment since it did not meaningfully exceed the scope of Ada’s
search. See Jacobsen, 466 U.S. at 119.

The officers replicated a search already
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conducted by private citizens who acted independently, observed what they
thought to be child pornography, and shared their concerns with the officers, who
then confirmed that the drives contained what Nicole and Ada reported.
With regard to USB drives three, four, and five, the issue is more
complicated because it is unclear whether Ada actually observed any content on
the third drive and uncontested that Nicole and Ada did not view any content on
the fourth and fifth drives. While law enforcement’s search of these drives without
a warrant was a per se violation of the Fourth Amendment, the evidence obtained
is nonetheless admissible under the independent-source doctrine. In the event that
the government violates the Fourth Amendment in conducting an illegal search,
“[t]he independent source doctrine allows admission of evidence that has been
discovered by means wholly independent of any constitutional violation.” United
States v. Barron-Soto, 820 F.3d 409, 415 (11th Cir. 2016) (quoting Nix v. Williams,
467 U.S. 431, 443 (1984)).
We apply a two-part test to determine whether the independent source
doctrine operates to render evidence admissible regardless of whether the initial
search violated the Fourth Amendment. United States v. Noriega, 676 F.3d 1252,
1260 (11th Cir. 2012).
The first thing we do is excise from the search warrant
affidavit any information gained during the arguably
illegal initial entry and determine whether the remaining
information is enough to support a probable cause
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finding. If the remaining or nonexcised information is
enough to support a probable cause finding, the second
thing we do is determine whether the officer's decision to
seek the warrant was “prompted by” what he had seen
during the arguably illegal entry. To determine whether
an officer's decision to seek a warrant is prompted by
what he saw during the initial entry, courts ask whether
the officer would have sought the warrant even if he had
not entered. If the officer would have done so, his
decision to seek the search warrant is supported by an
“independent source,” and the evidence seized under the
warrant is admissible regardless of whether the initial
entry violated the Fourth Amendment.
Id. at 1260-61 (internal citations omitted).
The first question we ask then is whether, excluding any information gained
from Officer Zammit’s report and Detective Meeks’s own preliminary forensic
examination of the USB drives, probable cause still existed to support a search
warrant for all five USB drives. Detective Meeks testified, and his affidavit in
support of the first search warrant reflects, that Nicole’s and Ada’s observations
regarding the contents of the first two USB drives formed “much of the basis” of
his affidavit.

These observations included information regarding specific file

names, the approximate ages of the children involved, the unnatural and sexually
explicit nature of the photographs and videos, and the presence of a specific adult
male sexually assaulting a young child in at least one video. This information
alone, which we have already found to be properly gleaned as a result of the

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private-party search doctrine, certainly suffices to support a finding of probable
cause.
So we move on to the second step and ask whether Detective Meeks would
have sought the search warrant even if he had not first read Officer Zammit’s
report and previewed all five USB drives himself. Noriega, 676 F.3d at 1261. The
district court concluded in its order denying Harling’s motion to suppress that
Detective Meeks would have. Based on just the descriptions provided by Nicole
and Ada, the district court concluded that a fair probability existed that contraband
or evidence of a crime would be found on all five USB drives. Officers probed the
contents of the drives before obtaining the search warrant but only to confirm the
veracity of what Nicole and Ada had reported seeing, not to independently obtain
sufficient probable cause for a search warrant. Because the private-party search
conducted by Nicole and Ada provided an independent source for the probable
cause necessary to issue a search warrant for all five USB drives, the Government
has successfully demonstrated that the evidence would have been ultimately
obtained independent of any initial violation of the Fourth Amendment. Thus,
Harling’s motion to suppress was properly denied.4
4

Because we find that the affidavits used to obtain the search warrants included
information lawfully obtained by Nicole and Ada, as private citizens, Harling’s arguments
regarding the validity of the search warrants are meritless. Additionally, we need not address
Harling’s argument concerning exigent circumstances because the issues raised are fully
resolved through the application of the private-party search doctrine and the independent-source
doctrine.
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B. Judgment of Acquittal
Next, Harling asserts that the district court erred in denying his motion for
judgment of acquittal as to Count One—possession of materials containing child
pornography—because the government failed to prove that he knowingly
possessed child pornography, that he knew that at least one of the performers in
such visual depictions was a minor, or that he knew that the visual depictions were
of minors engaged in sexually explicit conduct. In Harling’s view, the government
failed to meet its burden to show that he owned the USB drives or that he was the
male in the images and videos.
We review de novo the district court’s denial of a motion for judgment of
acquittal, viewing the facts and drawing all inferences in the light most favorable
to the government. United States v. Descent, 292 F.3d 703, 706 (11th Cir. 2002).
To uphold the denial of a motion for judgment of acquittal, “we need only
determine that a reasonable fact-finder could conclude that the evidence
established the defendant’s guilt beyond a reasonable doubt.” United States v.
Hansen, 262 F.3d 1217, 1236 (11th Cir. 2001) (quotation marks omitted).
Section 2252(a)(4)(B) makes it a crime to “knowingly possess[ ] … 1 or
more books, magazines, periodicals, films, video tapes, or other matter which
contain any visual depiction” that has traveled through interstate commerce if “the
producing of such visual depiction involves the use of a minor engaging in
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sexually explicit conduct; and such visual depiction is of such conduct.” 18 U.S.C.
§ 2252(a)(4)(B). An act is done “knowingly” when it is performed voluntarily and
intentionally, not because of mistake or accident. United States v. Woodruff, 296
F.3d 1041, 1047 (11th Cir. 2002). In the context of § 2252, the term “knowingly”
refers to the defendant’s knowledge of the fact that the material contains child
pornography. See United States v. X-Citement Video, Inc., 513 U.S. 64, 78 (1994).
Upon review of the record, we conclude that the evidence was more than
sufficient to support Harling’s conviction. The evidence showed that Harling, the
owner and previous occupant of the condominium unit, possessed the USB drives
found in the closet. Harling also owned the same type of camera used to take the
photographs discovered on the USB drives, was himself pictured in both the
photographs and films engaging in sexually explicit conduct with minors, and even
identified one of the young boys from the films on the USB drives as a boy he
knew—a boy investigators later learned to be Harling’s step-grandson.
Additionally, furniture and architectural details from Harling’s home matched the
furniture and architectural details depicted in the photographs and videos found on
the USB drives, and Harling’s business card was found on the fourth USB drive.
From this evidence alone, a reasonable factfinder easily could have found
Harling guilty of violating the statutes charged in Count One of the indictment. In

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short, the district court did not err in denying Harling’s motion for judgment of
acquittal.
C. “Mere Presence” Jury Instruction
Harling also contends that the district court erred when it failed to give the
jury a “mere presence” jury instruction in line with his defense that his mere
presence in the condominium unit at some previous point in time did not
necessarily mean that he was the individual who knowingly possessed the USB
drives found in the closet. We review for an abuse of discretion a properly
preserved claim that the district court omitted a jury instruction. United States v.
Morris, 20 F.3d 1111, 1114 (11th Cir. 1994).
A district court abuses its discretion in failing to give a requested instruction
if “(1) the requested instruction was a correct statement of the law, (2) its subject
matter was not substantially covered by the charge actually given, and (3) its
subject matter dealt with an issue in the trial court that was so important that the
failure to give it seriously impaired the defendant’s ability to defend himself.”
United States v. Paradies, 98 F.3d 1266, 1286 (11th Cir. 1996). A theory-ofdefense charge is not warranted if “the charge given adequately covers the
substance of the requested instruction.” United States v. Ndiaye, 434 F.3d 1270,
1293 (11th Cir. 2006).

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We find no abuse of discretion in the district court’s refusal to give Harling’s
requested mere-presence instruction. We first note that Harling never actually
provided the district court with a proposed “mere presence” instruction; he merely
requested that the district court provide one.
In any case, the instructions given by the district court substantially covered
Harling’s request. The court instructed the jury that to convict Harling, it had to
find that he “knowingly possessed one or more matters containing visual
depictions” of a minor engaging in sexually explicit conduct.

The court defined

“knowingly” as meaning the act “was done voluntarily and intentionally and not
because of a mistake or by accident.”
Having received these instructions, “the jury could not have attributed
possession to [Harling] through his mere presence alone, because mere presence
would not establish voluntary [and] intentional possession.”

United States v.

Woodard, 531 F.3d 1352, 1365 (11th Cir. 2008). Under the given instructions, the
jury could return a guilty verdict only if it found that Harling voluntarily and
intentionally possessed the USB drives; the instructions did not allow a finding of
guilt based on Harling’s mere presence in the condominium where the USB drives
were found.
D. Sentencing

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Finally, Harling argues that his sentence of 240 months’ imprisonment,
followed by a term of lifetime supervised release is substantively unreasonable
because the sentence is greater than necessary to protect the public and further the
goals of sentencing. We disagree.
The reasonableness of a sentence depends upon the district court’s
application of the factors outlined in 18 U.S.C. § 3553(a).5 United States v. Talley,
431 F.3d 784, 788 (11th Cir. 2005). We review the substantive reasonableness of a
sentence for an abuse of discretion, vacating the sentence only if we “are left with
the definite and firm conviction that the district court committed a clear error of
judgment in weighing the § 3553(a) factors by arriving at a sentence that lies
outside the range of reasonable sentences dictated by the facts of the case.” United
States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc). The party who
challenges the sentence bears the burden of demonstrating that the sentence is
5

The relevant § 3553(a) factors include the following:
(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
(D) to provide the defendant with needed . . . treatment;
(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.
18 U.S.C. § 3553(a).
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unreasonable in light of the record and the § 3553(a) factors. United States v.
Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).
Here, the government asserts first that Harling’s arguments with regard to
his term of supervised release should be reviewed for plain error only since Harling
failed to challenge the district court’s imposition of a term of lifetime supervised
release at sentencing, and second, that this Court should decline to consider his
sentencing arguments under the doctrine of invited error because Harling invited
the district court to impose a sentence up to and including the statutory maximum.
But we need not determine whether a heightened standard of review applies here
because Harling’s arguments fail under even an abuse-of-discretion standard of
review.
At sentencing, the district court specifically recited the § 3553(a) factors and
then concluded that the guideline range was reflective of the “abhorre[nt]” conduct
at issue. Noting the seriousness of the offense, the fact that Harling took advantage
of children in his care, and Harling’s failure to accept responsibility, the district
court found a sentence at the statutory maximum to be appropriate. It is clear from
the record that the district court considered and applied the § 3553(a) factors and
weighed them appropriately. See United States v. Amedeo, 487 F.3d 823, 832
(11th Cir. 2007) (finding that the weight given to any § 3553(a) factor is within the
sound discretion of the district court).
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Harling’s sentence was certainly

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substantively reasonable. And even if we did not agree with the district court’s
determination of the weight given to each factor, we could not substitute our
judgment for that of the district court when the district court acted within the
bounds of its discretion. Id.; see also Gall v. United States, 552 U.S. 38, 51 (2007)
(“The fact that [we] might reasonably have concluded that a different sentence was
appropriate is insufficient to justify reversal of the district court.”).
III.
For these reasons, we affirm Harling’s conviction and his sentence of 240
months’ imprisonment, followed by a lifetime term of supervised release.
AFFIRMED.

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