United States v. Norman Burch

Filing

OPINION FILED - THE COURT: Roger L. Wollman, Myron H. Bright and Steven M. Colloton AUTHORING JUDGE:Myron H. Bright (PUBLISHED) [4354993] [14-3649]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 14-3649
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Norman Lee Burch
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Des Moines
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Submitted: September 24, 2015
Filed: January 12, 2016
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Before WOLLMAN, BRIGHT, and COLLOTON, Circuit Judges.
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BRIGHT, Circuit Judge.
Appellant-defendant Norman Burch (Burch) pled not guilty to a charge of
receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2), and possession
of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). At trial, Burch
objected to the admission of two pieces of evidence: an email and a written statement

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to police. The district court1 admitted the email and sustained Burch’s objection to
the written statement. But the government presented testimony regarding the written
statement without objection by Burch. A jury found Burch guilty of possession of
child pornography. Burch filed a motion for judgment of acquittal, which the district
court denied. The district court sentenced Burch to 120 months’ (10 years’)
imprisonment. Burch appeals both his conviction and sentence. We affirm.
I. BACKGROUND
Burch lived at a residence with the minor victim of offense (BNS), BNS’s
grandmother (Grandmother), and BNS’s sister (Sister). At the time of the offense,
BNS was fourteen years old. Burch owned a computer (the computer). Burch
allowed BNS to use the computer with permission and BNS set up Burch’s Yahoo!
email account.
In summer 2011, Burch caught BNS sending partially-nude photographs via
text message. Burch told BNS he would tell Grandmother about the partially-nude
photographs if BNS did not tell Grandmother. BNS elected to tell Grandmother and
Grandmother punished BNS.
Sometime after BNS told Grandmother about the partially-nude photographs,
Burch asked BNS to take fully-nude photographs he could sell on the internet. At
this time, BNS already took and shared fully-nude photographs with others. BNS
sent Burch fully-nude photographs for months and Burch paid BNS various amounts
of money for the photographs.

1

The Honorable James E. Gritzner, United States District Court for the
Southern District of Iowa.
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BNS testified at trial that she eventually decided she no longer wanted to send
Burch fully-nude photographs. To support BNS’s testimony, the government
submitted an email dated October 6, 2011 from BNS’s email address to the Yahoo!
email account BNS set up for Burch (October 6, 2011 email). The email read: “umm
i spent the money u gave me so wen i get money i give it back to u bc i take pics on
my own time not wen sum1 tells me sorry n ps stop calling my fone.” BNS sent the
email before BNS’s family learned she took and shared fully-nude photographs. BNS
did not disclose the October 6, 2011 email; the police discovered the October 6, 2011
email during a forensic investigation.
In November 2011, Sister discovered BNS took and shared fully-nude
photographs. Sister informed Grandmother who confronted BNS. When confronted,
BNS explained that Burch asked BNS to take the photographs. Grandmother
confronted Burch who denied BNS’s allegations. In light of the denial, Grandmother
took the computer. In the presence of others, including Burch and Grandmother,
BNS showed the group the fully-nude photographs of BNS on the computer. The
group also saw nude photographs of other young girls and grown women on the
computer. Sister testified Burch admitted to putting the non-BNS photographs on the
computer.
After the photographs were discovered on the computer, BNS reported to
police that Burch used her to take fully-nude photographs to sell on the internet. At
this time, BNS made a written statement to police (written statement). At trial, Burch
objected to the admission of the written statement, which the district court sustained.
BNS did, however, testify to the content of the written statement. Burch did not
object to BNS’s testimony regarding the written statement.
Police obtained the computer and conducted a forensic investigation. The
government presented extensive testimony at trial regarding the child pornography
found during the forensic investigation.
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Police interviewed Burch and Burch denied using BNS to take fully-nude
photographs to sell on the internet. But Burch admitted to receiving photographs
from other people and stated there may be nude photographs of children on the
computer. Burch did not inform the police anyone else used his computer.
Police arrested and charged Burch with receipt of child pornography and
possession of child pornography. A jury found Burch guilty of possession of child
pornography. Burch filed a motion for judgment of acquittal, which the district court
denied.
Before sentencing, a probation officer completed a presentence investigation
report (PSR). The probation officer used the cross-reference in the U.S. Sentencing
Guidelines Manuel (U.S.S.G.) § 2G2.2(c)(1), increasing Burch’s base-offense level.
Burch objected to the use of the cross-reference in section 2G2.2(c)(1). The
sentencing judge applied the cross-reference, but, for reasons not at issue in this
appeal, reduced the advisory Guideline range to 235 to 293 months’ (approximately
19½ to 24½ years’) imprisonment, with a statutory maximum of 120-months’ (10years’) imprisonment. The sentencing judge found the Guidelines unhelpful and
conducted an analysis under 18 U.S.C. § 3553(a). The district court imposed the
statutory maximum sentence of 120-months’ (10-years’) imprisonment.
II. DISCUSSION
On appeal, Burch argues that the district court erroneously: (1) denied Burch’s
objection to the admission of the October 6, 2011 email; (2) permitted BNS to testify
about the content of her written statement; (3) denied his motion for judgment of
acquittal; (4) applied the cross-reference in U.S.S.G. § 2G2.2(c)(1); and (5) imposed
a substantively unreasonable sentence. We affirm.

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A.

Admission of Alleged Inadmissible Hearsay Evidence

Burch first argues the district court committed reversible error in admitting two
pieces of inadmissible hearsay evidence: the October 6, 2011 email and testimony
regarding the content of BNS’s written statement. We review “ ‘[e]videntiary rulings
. . . for abuse of discretion,’ giving due ‘deference to the district judge who saw and
heard the evidence.’ ” United States v. Two Elk, 536 F.3d 890, 900 (8th Cir. 2008)
(quoting United States v. Davidson, 449 F.3d 849, 853 (8th Cir. 2006)). “An error
admitting hearsay testimony ‘that does not affect substantial rights must be
disregarded.’ ” United States v. Tenerelli, 614 F.3d 764, 771 (8th Cir. 2010) (quoting
Fed. R. Crim. P. 52(a)). “An error is harmless if we conclude that ‘no substantial
rights of the defendant were affected and that the error did not influence or had only
a very slight influence on the verdict.’ ” United States v. Eagle, 498 F.3d 885, 888
(8th Cir. 2007) (quoting United States v. Wilcox, 50 F.3d 600, 603 (8th Cir. 1995)).
1. October 6, 2011 Email
Burch argues the district court abused its discretion in admitting the October
6, 2011 email under Fed. R. Evid. 801(d)(1)(B)(i). Rule 801(d)(1)(B)(i) provides that
a statement “is not hearsay” when:
The declarant testifies and is subject to cross-examination about a prior
statement, and the statement . . . is consistent with the declarant’s
testimony and is offered . . . to rebut an express or implied charge that
the declarant recently fabricated it or acted from a recent improper
influence or motive in so testifying.
(Emphasis added). In order for a prior consistent statement to be admissible under
Rule 801(d)(1)(B)(i), it must be established that the declarant made the prior
consistent statement “before the charged recent fabrication or improper influence or
motive.” Tome v. United States, 513 U.S. 150, 167, 115 S. Ct. 696, 130 L. Ed. 2d
574 (1995).
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The parties disagree on whether BNS sent the October 6, 2011 email before
BNS had a motive to fabricate. Burch contends BNS’s motive to fabricate occurred
after Burch required BNS to inform Grandmother about the partially-nude
photographs.
Burch’s argument is unpersuasive. At closing argument, Burch’s counsel
argued:
On the day [BNS was caught with fully-nude photographs], [Burch] was
out of the loop. This was something that [Sister] found on [BNS’s]
phone that got this whole thing started. And then [Sister] forwarded it
to her phone and that’s when everything blew up. And it was at that
moment that [BNS] started to cry because, as [Grandma] said, when
[BNS] gets caught in a lie, she cries sometimes. That’s when Norman
Burch became the scapegoat.
(Emphasis added). Thus, Burch argued at trial that BNS’s motive for fabrication
occurred when Sister caught BNS taking and sending fully-nude photographs. See,
e.g., United States v. Bercier, 506 F.3d 625, 629 (8th Cir. 2007) (calculating alleged
fabrication based on defense at trial); United States v. Beaulieu, 194 F.3d 918, 920
(8th Cir. 1999) (same).
With the above inconsistency in Burch’s assertions, the district court did not
abuse its discretion in admitting the October 6, 2011 email as non-hearsay under
Rule 801(d)(1)(B)(i).
2. BNS’s Testimony Regarding BNS’s Written Statement
Burch next asserts the district court erred by allowing BNS to testify about the
content of BNS’s written statement. The government responds that Burch waived his
challenge because Burch did not object to the admission of the testimony at trial.
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In this case, the government offered, as an exhibit, BNS’s written statement.
Burch objected to the admission of the written statement, arguing hearsay. The
district court sustained the objection. In light of the district court’s ruling, the
government proceeded to ask BNS, orally, about the written statement. Burch did not
object. Therefore, we apply the plain error standard of review. See United States v.
Mickelson, 378 F.3d 810, 819 (8th Cir. 2004) (applying plain error standard when a
defendant did not object to the statements when they were admitted into evidence).
To establish plain error, Burch must show (1) an error; (2) that was plain; and
(3) affected Burch’s substantial rights. United States v. Adejumo, 772 F.3d 513, 538
(8th Cir. 2014). No plain error exists because BNS’s testimony did not affect Burch’s
substantial rights. Specifically, the government presented evidence regarding: the
child pornography found on the computer; Burch’s admission to Sister that Burch put
“any photographs on the computer that” did not depict BNS; Burch’s admission to
police that he received nude photographs of individuals—other than BNS—on the
internet; and Burch’s failure to “deny that there would be images of child
pornography” on his computer. This evidence amply supported Burch’s conviction
for possession of child pornography—even excluding BNS’s testimony about her
written statement.
B.

Motion for Judgment of Acquittal

Burch next asserts the district court erred by denying his motion for judgment
of acquittal, arguing insufficient evidence to support the jury’s verdict. “We review
de novo the denial of a motion for judgment of acquittal.” United States v. Cook, 603
F.3d 434, 437 (8th Cir. 2010) (quoting United States v. Chase, 451 F.3d 474, 479 (8th
Cir. 2006)). On review, we “will affirm if the record, viewed most favorably to the
government, contains substantial evidence supporting the jury’s verdict, which means
evidence sufficient to prove the elements of the crime beyond a reasonable doubt.”
United States v. Lopez, 443 F.3d 1026, 1030 (8th Cir. 2006) (en banc). “The
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elements of possession under 18 U.S.C. § 2252(a)(4)(B) require [Burch] to knowingly
possess an item of child pornography, and the item to be transported in interstate or
foreign commerce by any means.” United States v. White, 506 F.3d 635, 641 (8th
Cir. 2007).
Here, viewing the record in the light most favorable to the government, there
exists substantial evidence on every element of the crime which supports the jury’s
verdict. The government presented extensive evidence regarding the existence of
child pornography on the computer. The government also presented evidence, in the
form of Burch’s recorded statement, in which Burch admitted he received and
downloaded nude photographs from the internet onto the computer. Burch also did
not “deny that there would be images of child pornography.” Further, Sister testified
that Burch admitted to putting “any photographs on the computer that” did not depict
BNS. The district court properly denied Burch’s motion for judgment of acquittal.
C.

Sentence

Burch finally argues the district court erred by imposing a sentence of 120
months’ (10 years’) imprisonment. In reviewing a sentence, whether inside or outside
the Guidelines range, we apply “a deferential abuse-of-discretion standard.” United
States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (quoting United States v.
Hayes, 518 F.3d 989, 995 (8th Cir. 2008)). We “must first determine whether the
district court committed a procedural error by improperly calculating ‘the [g]uidelines
range, treating the [g]uidelines as mandatory, failing to consider the § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing to adequately explain
the chosen sentence.’ ” United States v. Brown, 772 F.3d 1141, 1142 (8th Cir. 2014)
(per curiam) (alteration in original) (quoting Feemster, 572 F.3d at 461). An abuse
of discretion occurs when a court: (1) “fails to consider a relevant factor that should
have received significant weight”; (2) “gives significant weight to an improper or
irrelevant factor”; or (3) “considers only the appropriate factors but in weighing them
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commits a clear error of judgment.” United States v. Williams, 624 F.3d 889, 899
(8th Cir. 2010) (quoting United States v. Kane, 552 F.3d 748, 752 (8th Cir. 2009)).
1. Application of U.S.S.G. § 2G2.1
Burch argues the district court erred in calculating the advisory Guideline range
by applying the cross-reference in U.S.S.G. § 2G2.2(c)(1). Specifically, Burch argues
the inapplicability of the cross-reference in section 2G2.2(c)(1)—which calls for the
application of U.S.S.G. § 2G2.1—because “the evidence did not support that . . .
Burch was involved in the ‘active solicitation’ of child pornography.”
U.S.S.G. § 2G2.2(c)(1) provides:
If the offense involved causing, transporting, permitting, or offering or
seeking by notice or advertisement, a minor to engage in sexually
explicit conduct for the purpose of producing a visual depiction of such
conduct or for the purpose of transmitting a live visual depiction of such
conduct, apply § 2G2.1 . . . if the resulting offense level is greater than
that determined above.
The cross reference “is to be construed broadly.” U.S.S.G. § 2G2.2(c)(1) cmt. n.5.
Here, the sentencing judge provided the following detailed reasons for
application of the section 2G2.2(c)(1) cross reference:
[I]n looking at the evidence . . . and making a decision which I must
base[] upon a preponderance of the evidence, I have testimony, albeit
subject to some criticism, that the email account was set up at the
request of and at the direction of [Burch]. I have [Burch’s] denial about
that; but I have the email in which [BNS] expresses her desire to cease
providing the images, and that email becomes a significant item of
evidence given when the email was sent and the contents of that email
because it all does become consistent unless one tries to speculate that
[BNS] was in some way trying to create an elaborate deception. . . .
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Taken with the remainder of the record and what is actually found on
[Burch’s] computer and the information I have in the record about the
handling and use of that computer, it seems to me it does adequately
support the application of [the cross reference in section 2G2.2(c)(1)].
Nothing in the record contradicts the sentencing judge’s findings or shows an
abuse of discretion in the application of the cross reference. See United States v.
Jones, 160 F.3d 473, 480 (8th Cir. 1998) (noting we leave credibility findings to the
discretion of the sentencing judge).
2. Substantive Reasonableness of Burch’s Sentence
Finally, Burch argues the district court imposed a substantively unreasonable
sentence. But, contrary to Burch’s assertions, the sentencing judge applied the 18
U.S.C. § 3553(a) factors and set forth a reasoned basis for imposing a 120-month
term of imprisonment. The sentencing judge “adequately explain[ed]” Burch’s
sentence, explicitly analyzing most of the section 3553(a) factors. Gall v. United
States, 552 U.S. 38, 50, 128 S. Ct. 586, 169 L. Ed. 2d 445 (2007). Further, even
though Burch received the statutory maximum, the sentencing judge imposed a
sentence well below the advisory Guideline range. United States v. Shafer, 438 F.3d
1225, 1227 (8th Cir. 2006) (“[W]hen the bottom of the guidelines range is above the
statutory maximum, the statutory maximum sentence is presumed reasonable.”). We,
therefore, hold the district court’s sentence is not substantively unreasonable.
CONCLUSION
For the foregoing reasons, we AFFIRM.
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