United States v. Bret Humphries

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 21, 2021
• Docket: 19-10079
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 21 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10079

Plaintiff-Appellee, D.C. No. 2:14-cr-00279-APG-VCF-1 v.

BRET ALAN HUMPHRIES, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada Andrew P. Gordon, District Judge, Presiding

Submitted June 16, 2021** San Francisco, California

Before: THOMAS, Chief Judge, and BRESS and BUMATAY, Circuit Judges.

Bret Humphries appeals his conviction for “receiv[ing] or distribut[ing]” child

pornography under 18 U.S.C. § 2252A(a)(2). We have jurisdiction under 28 U.S.C.

§ 1291. We affirm.

1. We review “a district court’s admission of evidence for abuse of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). discretion.” United States v. Ramos-Atondo, 732 F.3d 1113, 1121 (9th Cir. 2013).

We also review for abuse of discretion the district court’s decision whether to invoke

judicial estoppel. See United States v. Ruiz, 73 F.3d 949, 953 (9th Cir. 1996). The

district court did not abuse its discretion in declining to apply judicial estoppel when

it admitted evidence of downloads to government computers showing that

Humphries distributed child pornography.

“Judicial estoppel is an equitable doctrine that precludes a party from gaining

an advantage by asserting one position, and then later seeking an advantage by taking

a clearly inconsistent position.” Hamilton v. State Farm Fire & Cas. Co., 270 F.3d

778, 782 (9th Cir. 2001). Three factors “inform the decision whether to apply the

doctrine in a particular case.” New Hampshire v. Maine, 532 U.S. 742, 750 (2001).

“First, a party’s later position must be clearly inconsistent with its earlier position.”

Id. (quotations omitted). Second, the party must have “succeeded in persuading [the]

court to accept that party’s earlier position.” Id. Third, the party seeking to assert

the inconsistent position must “derive an unfair advantage or impose an unfair

detriment on the opposing party if not estopped.” Id. at 751.

Even if Humphries could show that the first two factors were met, he cannot

show the third factor, and thus that the district court abused its discretion in allowing

the disputed evidence. The government did not “derive an unfair advantage” over

Humphries. Id. As the district court recognized, any unfair advantage to Humphries

2 consisted of the government seeking to admit evidence at trial that Humphries

thought would be excluded. Because Humphries declined multiple offers for a trial

continuance, he cannot show the government gained an unfair advantage. See

LaMere v. Risley, 827 F.2d 622, 625 (9th Cir. 1987) (failing to ask for continuance

undermines claim of prejudice).

2. Humphries further argues that the district court should have held an

evidentiary hearing before it admitted the law enforcement downloads. We review

this issue for abuse of discretion. See United States v. Cook, 808 F.3d 1195, 1201

(9th Cir. 2015). The district court did not abuse its discretion in declining to hold an

evidentiary hearing. While Humphries maintains that such a hearing was needed

because the district court rejected the recommendation of the magistrate judge, that

is not what happened here. The magistrate judge ruled on the discoverability of the

government software’s source code, and the district court ruled on a different matter:

the admissibility of evidence at trial. Further, Humphries does not otherwise explain

why an evidentiary hearing was needed on the judicial estoppel issue when the

district court reviewed the transcript from the hearing before the magistrate judge.

3. Even if the district court erred in admitting the evidence of downloads,

any error was harmless. “Reversal is not required if there is a fair assurance of

harmlessness or, stated otherwise, unless it is more probable than not that the error

did not materially affect the verdict.” United States v. Lague, 971 F.3d 1032, 1041

3 (9th Cir. 2020) (quotations omitted). The government presented overwhelming

evidence that Humphries received child pornography, which was sufficient to

sustain his conviction. See 18 U.S.C. § 2252A(a)(2). Evidence presented at trial

showed that Humphries used a password-protected computer that had images and

videos showing children engaging in sexual acts. The evidence also showed that

Humphries opened and viewed files with file names consistent with child sexual

material. Thus, any error in admitting evidence relating to Humphries’s distribution

of child pornography was harmless.

AFFIRMED.