US v. Matthew Wiggin

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 6:13-cr-00183-1. Copies to all parties and the district court/agency. [999627096]. [14-4729]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4729

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MATTHEW JOHN WIGGINS,
Defendant - Appellant.

Appeal from the United States District Court for the Southern
District of West Virginia, at Parkersburg. Robert C. Chambers,
Chief District Judge. (6:13-cr-00183-1)

Submitted:

June 30, 2015

Decided:

July 24, 2015

Before KEENAN, WYNN, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Christian M. Capece, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, David R. Bungard, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant.
R. Booth
Goodwin II, United States Attorney, Lisa G. Johnston, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Matthew John Wiggins was convicted after a bench trial of two
counts of accessing with intent to view child pornography, 18
U.S.C. § 2252A(a)(5)(B) (2012), and tampering with a witness, 18
U.S.C. § 1512(b)(2)(B) (2012).
imprisonment.

Wiggins

He was sentenced to 210 months’

appeals,

arguing:

(1)

that

18

U.S.C.

§ 2252A(a)(5)(B) is unconstitutionally vague, (2) the evidence was
insufficient to support his conviction on one of the two counts
charging a violation of § 2252A(a)(5)(B), and (3) the district
court erred by allowing the inclusion of privileged mental health
records in his presentence investigation report. Finding no error,
we affirm.
The evidence presented at Wiggins’ trial, viewed in the light
most favorable to the Government, see United States v. Burgos, 94
F.3d 849, 854 (4th Cir. 1996) (en banc), was as follows.

In

January 2013, a report generated by the West Virginia Office of
Information Security and Controls (OISC) revealed that a computer
located at a public library in Parkersburg, West Virginia, had
been used to access or attempt to access websites that had been
identified as ones containing child pornography.
information

security

officer

with

OISC,

James Amos, an

testified

that,

in

response to that report, he began an investigation to monitor in
real-time the activity on the IP address identified in the report.
Amos prepared a Network Violation Report, including the IP address
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and physical location, which showed a list of 26 to 32 images of
child pornography that had been accessed on that computer on
January 16, 2013. Amos then alerted the West Virginia state police
Internet Crimes Against Children Task Force.
Based on information provided by Amos, Detectives Travis
Wolfe, Pat Edelen, and James Stalnaker—all members of the Task
Force—went to the Parkersburg public library on January 17, 2013,
and found Wiggins seated at the computer terminal identified in
the OISC report.
computer

and

At the same time, Amos was monitoring the

relaying

information

to

the

detectives,

via

telephone, that it was being used to access child pornography
sites.

A search of the library computer revealed 62 images of

child pornography that had been accessed on January 17th.

Records

also established that Wiggins’ library card was used to access the
computer identified in the

OISC report on January 16 and 17.

In

addition, a library card issued to Wiggins’ former brother-in-law,
Jody Payne, was used to access the same computer on January 16,
2013.

Jody testified that he had moved to Ohio in November 2012

and left his library card and PIN number for Wiggins to use.
The

Government

presented

extensive

testimony

and

reports

showing that multiple sites were visited, displaying numerous
visual depictions of minors engaged in sexually explicit conduct.
At the close of evidence, the district court found Wiggins guilty

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of both counts charging a violation of § 2252A(a)(5)(B), as well
as witness tampering.
The presentence report recommended a total offense level of
32 (based on evidence that Wiggins accessed 347 images of child
pornography); with a criminal history category of IV, Wiggins’
advisory Guidelines range was 168 to 210 months’ imprisonment.
The

report

also

included

information

from

Wiggins’

prior

participation in the Bureau of Prison’s Sex Offender Treatment
Program, which he had completed in March 2000, as well as a
psychological evaluation that he underwent in 2010 as part of a
state prosecution for failing to register as a sex offender.

In

response to Wiggins’ objection to the inclusion of these materials
in the PSR, the district court informed the parties that it would
not rely upon any information included in the materials in arriving
at an appropriate sentence.

The court noted, however, that the

information at issue could assist the Bureau of Prisons as well as
Probation to provide appropriate treatment and monitoring.

The

court denied Wiggins’ request for a variance and imposed a sentence
at the top of the advisory Guidelines range.

Wiggins now appeals.

Wiggins argues, first, that 18 U.S.C. § 2252A(a)(5)(B) is
unconstitutionally vague because it fails to adequately define
“access.”

The “vagueness doctrine bars enforcement of a statute

which either forbids or requires the doing of an act in terms so
vague that men of common intelligence must necessarily guess at
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its meaning and differ as to its application.”

United States v.

Lanier,

quotation

520

omitted).

U.S.

259,

266

(1997)

(internal

marks

To enforce such a statute would “violate[] the first

essential of due process of law.”

Roberts v. U.S. Jaycees, 468

U.S. 609, 629 (1984) (internal quotation marks omitted).

However,

a criminal statute is sufficiently definite if “the commonsense
meaning” is clear.

United States v. Powell, 423 U.S. 87, 93

(1975)).
We hold that the district court properly concluded that, while
there is no case law directly on point, the term “accessing” is
sufficiently clear to apprise men of ordinary intelligence of the
statute’s

prohibition.

Wiggins’

multiple

visits

to

websites

containing images of child pornography, and the number of images
that

he

viewed

during

those

visits,

clearly

satisfies

the

definition of “access.”
Next, Wiggins asserts that the evidence was insufficent to
support his conviction on Count 4 (relating to January 17, 2013)
because the only files found on the library computer were in the
temporary Internet cache.
In order to sustain a conviction under § 2252A(a)(5)(B), the
Government

must

establish

that

the

defendant:

(1)

knowingly

accessed “some proscribed material”; (2) intended to view that
material; and (3) knew that the material contained an image of
child pornography.

United States v. Brune, 767 F.3d 1009, 1020
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(10th Cir. 2014).

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Our review of the record leads us to conclude

that the evidence was sufficient to sustain Wiggins’ conviction.
Finally, Wiggins argues that confidential documents protected
by the therapist/patient privilege should not have been included
in

the

PSR.

privilege

Although

protecting

federal

law

confidential

generally

recognizes

communications

between

the
a

psychotherapist and patient, see Jaffee v. Redmond, 518 U.S. 1
(1996),

the

presentence

investigation

traditional rules of evidence.”

is

“not

limited

by

United States v. Corbitt, 879

F.2d 224, 230 (7th Cir. 1989).

Specifically, the Guidelines

provide that, in making its sentencing decision, the district court
“may

consider

relevant

information

without

regard

to

its

admissibility under the rules of evidence applicable at trial,
provided

that

the

information

has

sufficient

reliability to support its probable accuracy.”

indicia

of

United States

Sentencing Guidelines Manual, § 6A1.3(a), p.s. (2014).

See also

United States v. Nichols, 438 F.3d 437 (4th Cir. 2006) (recognizing
that otherwise inadmissible evidence may sometimes be considered
for sentencing purposes).
We find that the district court did not err by allowing the
inclusion of the two mental health reports in Wiggins’ presentence
report.

And, in any event, any error was harmless given the

district court’s explicit statement that the information in those
reports would not be used in arriving at an appropriate sentence.
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Therefore, we affirm Wiggins’ conviction and sentence.

We

dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the Court and
argument would not aid in the decisional process.

AFFIRMED

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