United States v. Edward McElroy

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 6, 2018
• Docket: 14-30264
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 6 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 14-30264

Plaintiff-Appellee, D.C. No. 3:12-cr-00542-HZ-1

v. MEMORANDUM* EDWARD ALLEN MCELROY,

Defendant-Appellant.

Appeal from the United States District Court for the District of Oregon Marco A. Hernandez, District Judge, Presiding

Argued and Submitted June 6, 2018 Portland, Oregon

Before: M. SMITH and MURGUIA, Circuit Judges, and KORMAN,** District Judge.

Edward McElroy appeals his convictions for sexual exploitation of a child,

online enticement, and four child pornography offenses. We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. 1. After being represented by counsel for most of trial, McElroy was

permitted to represent himself for the final phase. The jury found McElroy guilty

on all counts. McElroy argues that his waiver of the right to counsel was not

knowing and intelligent under Faretta v. California, 422 U.S. 806 (1975), because

the district court failed to ascertain that he understood “the possible penalties” he

faced as to Count 1. United States v. Erskine, 355 F.3d 1161, 1167 (9th Cir. 2004)

(quoting United States v. Balough, 820 F.2d 1485, 1487 (9th Cir. 1987)). As to

Count 1, McElroy was correctly informed of the minimum possible penalty he

faced (25 years), but was not advised of the maximum penalty he faced (50 years).

McElroy was correctly informed that he faced a possible penalty of life

imprisonment if a sentencing enhancement applied. McElroy was not provided

with any incorrect information about his possible sentence. Cf. United States v.

Forrester, 512 F.3d 500, 507 (9th Cir. 2008). The district judge “did not err in

including the potential sentencing enhancements in his calculation of the maximum

possible penalty provided by law.” United States v. Gerritsen, 571 F.3d 1001, 1010

(9th Cir. 2009).

McElroy also argues that his waiver was not knowing and intelligent

because he was not advised of the meaning and effect of a term of “supervised

release.” McElroy points to no authority requiring the district court judge to

provide such information. In addition, the judge correctly informed McElroy that

2 the “maximum possible penalty provided by law” was a life sentence without any

term of supervised release. See id.

Because McElroy was not given any incorrect information regarding Count

1, cf. Forrester, 512 F.3d at 507, and no authority required McElroy to be informed

about the nature of supervised release, McElroy knowingly and intelligently

waived his right to counsel.

2. While representing himself, McElroy introduced into evidence an

affidavit that identified him as a convicted sex offender. When he realized his

mistake, he moved to withdraw the exhibit. The district court’s response (“It’s in.

I’m sorry. You offered it. I received it.”) does not show that the court was unaware

of its discretion. Contrary to McElroy’s argument on appeal, even if McElroy was

prejudiced by the exhibit, neither that prejudice nor his pro se status, without more,

establishes that the district court abused its discretion. See United States v.

Dujanovic, 486 F.2d 182, 188 (9th Cir. 1973).

3. McElroy argues that the district court abused its discretion in admitting

into evidence images of his erect penis and a video of him masturbating that he had

sent to the victim. This evidence had probative value insofar as it tended to show

McElroy’s intent to entice the victim into sexual activity and, because McElroy’s

face appears in the video, his identity. However, McElroy offered a stipulation

that would have had the same or greater probative value, and the government does

3 not contest that McElroy was unfairly prejudiced by the admission of the images

and video. See United States v. Merino-Balderrama, 146 F.3d 758, 762 & n.3 (9th

Cir. 1998). In these circumstances, it is a close question whether the district court

abused its discretion in admitting the photos and video in light of McElroy’s

willingness to stipulate, but we need not decide that question because any error

was harmless. The evidence that McElroy attempted to entice the victim, a minor,

into sexual activity was plentiful, as was the evidence on the other counts. The

jury heard uncontradicted testimony from the victim herself, her mother, and law

enforcement officers, and was presented with records and transcripts of McElroy’s

communications with the victim. All of this evidence tended to establish

McElroy’s guilt, and, in part due to his decision to represent himself for the last

portion of the trial, he offered no coherent defense. In light of the circumstances, it

is more likely than not that the introduction of the photos and video did not affect

the jury’s verdict. See United States v. Pang, 362 F.3d 1187, 1192 (9th Cir. 2004).

4. McElroy challenges his conviction for attempted transportation of child

pornography, arguing that the evidence showed at most that he prepared to commit

this offense. See Hernandez-Cruz v. Holder, 651 F.3d 1094, 1102 (9th Cir. 2011).

This conviction was based on the undisputed evidence that an email was found in

McElroy’s “sent items” folder containing sexually explicit images of the victim.

Although the intended recipient denied receiving the email and a police officer

4 testified that he did not find it in her email account, a reasonable juror could

choose to discredit her testimony and conclude that she received and deleted the

email, which had the subject line “Read then delete!!” Furthermore, another

officer testified that McElroy admitted sending the email when questioned.

Accordingly, this conviction is supported by sufficient evidence.

AFFIRMED.