United States v. Brian Robert Harling

705 F. App'x 911
CourtCourt of Appeals for the Eleventh Circuit
DecidedAugust 28, 2017
Docket15-10969
StatusUnpublished
Cited by2 cases

This text of 705 F. App'x 911 (United States v. Brian Robert Harling) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Brian Robert Harling, 705 F. App'x 911 (11th Cir. 2017).

Opinion

*913 PER CURIAM:

Defendant-Appellant Brian Robert Har-ling 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. Facts 1

In 2013, Nicole Dunwody 2 saw a listing on Craigslist advertising a condominium unit for rent in Fort Myers, Florida. Har-ling occupied the unit at the time but was looking to rent it out because he had just purchased a new home,

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 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 Zam-mit arrived, Nicole informed him that Har-ling owned the condominium unit and had resided in it before she did, a fact that Officer Zammit confirmed when he called *914 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 pepartment 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 (hat, Detective Meeks, a member of the computer-crimes unit, retrieved the five USB drives from the evidence custodian and, after reviewing 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 aduty 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 Ñicole and Ada, who shared with him the specific details of what they had observed on the USB drives.

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 Har-ling identified as his step-grandson. 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 *915 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.

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Bluebook (online)
705 F. App'x 911, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-brian-robert-harling-ca11-2017.