US v. Howard Clem, IV

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:14-cr-00405-MJG-2 Copies to all parties and the district court/agency. [999791365].. [15-4331]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4331

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
HOWARD
JAMES
CLEM,
[e-mail],

IV,

a/k/a

Jamie,

a/k/a

Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Marvin J. Garbis, Senior District
Judge. (1:14-cr-00405-MJG-2)

Submitted:

March 31, 2016

Before KING and
Circuit Judge.

DUNCAN,

Decided:

Circuit

Judges,

and

April 8, 2016

DAVIS,

Senior

Affirmed by unpublished per curiam opinion.

Warren E. Gorman, Rockville, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Judson T. Mihok, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Howard James Clem, IV, appeals from his convictions and
108-month sentence entered following a jury verdict finding him
guilty

of

conspiracy
receipt

pornography,
possession

to

child

of

of

child

numerous claims.

distribute

and

pornography

pornography.

On

receive

(two

child

counts),

appeal,

Clem

and

raises

We affirm.
I.

Clem first asserts that insufficient evidence supported his
convictions.

However, the only element that Clem contests on

appeal is whether or not he knew that the charged depictions
involved a minor engaging in sexually explicit conduct.

Clem

asserts that he received blurry, postage-stamp sized images on
his phone and that there is no evidence that he ever opened the
pictures.

Because 18 U.S.C. §§ 2252(a), 2252A (2012) do not

criminalize
materials,

inadvertent
the

receipt

Government

must

or

possession

present

proof

of
of

circumstantial evidence of the requisite knowledge.

illicit
at

least

See United

States v. Ramos, 685 F.3d 120, 130-31 (2d Cir. 2012) (collecting
cases).
In

determining

whether

there

was

sufficient

evidence

to

support the verdict, we review both direct and circumstantial
evidence

and

permit

“the

government

the

benefit

of

all

reasonable inferences from the facts proven to those sought to
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be established.”
(4th Cir. 1982).
support

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United States v. Tresvant, 677 F.2d 1018, 1021
Circumstantial evidence may be sufficient to

a

conviction

even

if

reasonable

hypothesis

consistent

it

does
with

not

exclude

innocence.

every
United

States v. Jackson, 863 F.2d 1168, 1173 (4th Cir. 1989); see also
United States v. Burgos, 94 F.3d 849, 857-58 (4th Cir. 1996) (en
banc) (holding that circumstantial evidence alone is sufficient
to support a cocaine conspiracy conviction).
Here, the Government produced evidence that Clem repeatedly
commented on the images of child pornography that were sent to
him and that he requested sexually explicit images of a specific
child on numerous occasions.

While Clem testified that he only

guessed at the content of the images, the jury rejected his
testimony.

Witness credibility is within the sole province of

the jury, and we will not reassess the credibility of testimony.
United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989).
find

that

the

circumstantial

evidence

presented

by

We
the

Government was more than sufficient to show that Clem opened the
files at issue and, thus, that his violation of the statute was
knowing.
II.
Clem next argues that the admission of the pornographic
pictures by the Government violated his rights to due process
and

equal

protection.

Specifically,
3

he

asserts

that

the

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pictures presented by the Government were larger and clearer
than

how

he

fundamentally

received
unfair.

them
The

and

that

Supreme

this

Court

admission

has

held

that

was
a

defendant’s due process rights are not violated by the admission
of

relevant

evidence.

Estelle

v.

McGuire,

502

U.S.

62,

70

(1991); see also Dowling v. United States, 493 U.S. 342, 353-54
(1990) (holding that admission of evidence must be fundamentally
unfair to constitute a due process violation). 1
Clem essentially complains that he was not permitted to
show the blurred state in which he received the images and that
the Government was improperly hiding behind 18 U.S.C. § 3509(m)
(2012).

Section 3509(m) requires that child pornography images

involved

in

a

criminal

proceeding

must

remain

in

the

“care,

custody, and control” of the Government or the district court.
Accordingly, the Government was clearly barred from doing what
Clem

requested:

transmitting

the

1

images

from

Maryland

to

The Equal Protection Clause is “essentially a direction
that all persons similarly situated should be treated alike.”
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439
(1985).
Clem does not argue that he was treated differently
than any other similarly situated defendant, and he cites no
cases applying the Equal Protection Clause to the admission of
evidence.

4

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servers in California via Skout, 2 and then back to a cellular
telephone in Maryland.
Instead, the Government produced testimony that images from
Skout would initially be received in a blurred state and that
the receiver could tap once to view a 160 pixel version and tap
twice to view a 320 pixel version.

The Government then provided

a demonstration with a benign image of the blurred effect, as
well as the 160 pixel and 320 pixel versions.

The Government

then submitted the unblurred pornographic images at 160 and 320
pixels.
of

Clem, for his part, was permitted to introduce exhibits

(adult)

pornographic

images

and

a

live,

in-court

demonstration of how those images looked when received on his
phone.

We

find

that

the

record

does

not

reflect

that

the

admission of evidence was confusing or misleading.

As such,

Clem

denied

was

not

deprived

of

due

process

or

otherwise

a

meaningful opportunity to present a complete defense.
III.
Clem

asserts

that

a

conversation

between

him

and

his

coconspirator regarding a child (the coconspirator’s daughter)
was improperly admitted in violation of Fed. R. Evid. 404(b).
However, as the Government points out, the Rule 404(b) motion

2

Skout is a social networking site, through which Clem
received the images in question.

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concerned

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conversations

Clem

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had

with

other

users

(not

his

coconspirator) on Skout that explored common themes of sex with
minor females and mother-daughter incest.

Conversations with a

coconspirator would not be Rule 404(b) evidence as they were
intrinsic to the charged conduct, particularly the conspiracy.
Clem does not dispute the Government’s position in his reply
brief.

Accordingly, Clem’s argument is rejected as frivolous.
IV.

Clem contends that telephone records were improperly turned
over to him in an untimely manner in violation of Brady v.
Maryland, 373 U.S. 83 (1963), and Fed. R. Crim. P. 16.
Brady,
(1) is

due

process

favorable

is
to

violated
the

if

the

defendant,

evidence
because

in

it

Under

question:
is

either

exculpatory or impeaching; (2) was suppressed by the government;
and (3) is material.
(1999).

Strickler v. Greene, 527 U.S. 263, 281-82

Undisclosed evidence is material when its cumulative

effect is such that “there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the
proceeding would have been different.”
U.S.

419,

433-34

(1995).

A

Kyles v. Whitley, 514

reasonable

probability

sufficient to undermine confidence in the outcome.

is

one

Id. at 434.

We find that none of these requirements are met regarding
the evidence at issue.

The disputed records showing telephone

conversations

Clem

between

and
6

his

coconspirator,

which

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corroborated the coconspirator’s testimony, are not favorable to
Clem.
were

The records were turned over when received and, thus,
not

suppressed.

coconspirator
defense

that

spoke
his

Finally,

on

the

whether

phone

or

not

with

relationship

was

not

his

Clem

material

and

to

his

Clem’s

coconspirator

was

strictly role playing and that he did not want his coconspirator
to send him child pornography.
Without providing any citations to the record, Clem claims
that, if he had proper time to analyze the phone records, he
could have shown that he and his coconspirator did not have any
communication

between

June

28,

2012,

and

March

7,

2013.

However, even if there was no communication during a certain
period,

Clem

fails

to

show

how

this

communications outside this time period.

impacts

the

proof

of

Moreover, Clem’s claim

ignores the frequent Skout conversations during the cited time
period.

Because

the

evidence

at

issue

was

not

material

or

favorable, there was no Brady violation in the timing of the
production.
Rule
defendant

16(a)(1)(E)

requires

to

documents

inspect

the

Government

and

objects

to

that

permit
are

in

the
the

Government’s possession, custody, or control, and (i) material
to the defense, (ii) intended to be used in the Government’s
case-in-chief,

or

(iii)

obtained

from

the

defendant.

The

records did not belong to Clem, and the Government did not use
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them in its case-in-chief.

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Thus, in order for the records to be

discoverable under Rule 16, Clem must show that the records were
“material” to his defense.

As discussed above, the fact that

Clem and his coconspirator spoke on the phone was not material,
given the wealth of evidence against Clem.

Accordingly, there

was no discovery violation.
V.
Finally,

Clem

substantively

argues

that

unreasonable.

his

When

108-month

reviewing

sentence

the

is

substantive

reasonableness of a sentence, we consider “the totality of the
circumstances” under an abuse of discretion standard.
United

States,

552

U.S.

38,

51

(2007).

In

Gall v.

evaluating

the

sentence for an abuse of discretion, this court “give[s] due
deference to the [d]istrict [c]ourt’s reasoned and reasonable
decision that the § 3553(a) factors, on the whole, justified the
sentence.”

Id. at 59-60.

We presume that a sentence within or

below a properly calculated Guidelines range is substantively
reasonable.

United States v. Louthian, 756 F.3d 295, 306 (4th

Cir.), cert. denied, 135 S. Ct. 421 (2014).

The defendant bears

the burden of rebutting this presumption “by showing that the
sentence is unreasonable when measured against” the sentencing
factors set forth in 18 U.S.C. § 3553(a) (2012).
Clem’s
largely

on

claim
the

of

length

substantive
of

his
8

Id.

unreasonableness

coconspirator’s

is

sentence

based
(84

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months) compared to his, given that the coconspirator is the one
who

took

However,

pictures
some

of

her

disparity

daughter

is

and

reasonably

coconspirator’s cooperation.

sent

them

expected

to

based

Clem.
on

the

Moreover, because Clem’s sentence

is within the Guidelines range, it is presumed reasonable, and
we find that Clem fails to rebut this presumption.
court

primarily

relied

on

the

need

for

The district

deterrence

and

its

findings that the coconspirator was vulnerable and malleable,
that Clem had not been truthful at trial, and that Clem was
aware of the identity of the victim.

Clem does not show that

these findings are clearly erroneous and has not provided any
other basis to rebut the presumption of reasonableness attached
to his sentence.

Accordingly, Clem’s sentence was substantively

reasonable.
VI.
Thus,
dispense

we
with

contentions

are

affirm

Clem’s

oral

argument

adequately

convictions
because

presented

in

and

the
the

sentence.

facts

We

and

legal

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

9