United States v. Gavegnano

305 F. App'x 954
CourtCourt of Appeals for the Fourth Circuit
DecidedJanuary 16, 2009
Docket07-4579
StatusUnpublished
Cited by4 cases

This text of 305 F. App'x 954 (United States v. Gavegnano) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth 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. Gavegnano, 305 F. App'x 954 (4th Cir. 2009).

Opinion

PER CURIAM:

Derek F. Gavegnano appeals his conviction on two counts of receipt of child pornography, in violation of 18 U.S.C. §§ 2252(a)(2), 3261(a) (2006); one count of possession of child pornography, in violation of 18 U.S.C. §§ 2252(a)(4), 3261(a) (2006); and one count of importation or transportation of obscene matters, in violation of 18 U.S.C. §§ 1462, 3261(a) (2006). We have reviewed the record and find no reversible error.

Gavegnano first claims the district court erred in denying his motion to suppress based on violation of his Fourth and Fifth Amendment rights when evidence against him was obtained from a government-issued laptop. We review legal conclusions underlying the denial of a motion to suppress de novo, and review factual findings for clear error. United States v. Moreland, 437 F.3d 424, 433 (4th Cir.2006). The evidence is construed in the light most favorable to the Government. United States v. Seidman, 156 F.3d 542, 547 (4th Cir.1998).

To establish a violation of his Fourth Amendment rights, Gavegnano must establish that he had a “legitimate expectation of privacy” in the computer searched. United States v. Simons, 206 F.3d 392, 398 (4th Cir.2000) (citing Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978)). To prove a legitimate expectation of privacy, Gavegnano must show that his subjective expectation of privacy is one that society is prepared to accept as objectively reasonable. Simons, 206 F.3d at 398. As the district court properly held, this he did not do.

It is uncontroverted that when Gavegnano was issued a government computer, the user agreement he signed stated that he was aware of the acceptable use of all government-issued information sys *956 terns, that he consented to the monitoring of the information systems, and included the statement that he understood that monitoring was not selective and would include all activities on the information system. Moreover, the user agreement form Gavegnano signed applied to his use of all computer systems owned by the governmental agency for which he worked, which included the laptop he used in Qatar, on which the pornographic images were found. On these facts, and construing the evidence in favor of the Government, see Seidman, 156 F.3d at 547, we find no clear error by the district court in its determination that Gavegnano had no reasonable expectation of privacy in the unauthorized use of his government-issued laptop computer such that his Fourth Amendment rights were violated.

Gavegnano’s Fifth Amendment claim, based on the fact that, after invoking his right to consult with an attorney, he was asked for, and revealed, the password to the computer, also fails. Any self-incriminating testimony that he may have provided by revealing the password was already a “foregone conclusion” because the Government independently proved that Gavegnano was the sole user and possessor of the computer. See United States v. Stone, 976 F.2d 909, 911 (4th Cir.1992) (quoting Fisher v. United States, 425 U.S. 391, 411, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976)).

Next, Gavegnano challenges the district court’s taking of judicial notice of the court’s jurisdiction insofar as its failure to instruct the jury that it was not required to accept as conclusive any fact judicially noticed, as required by Fed. R.Evid. 201(g). Specifically, he takes issue with the district court’s judicial notice that Gavegnano was charged with crimes punishable by over a year in prison.

Rule 201(a) limits the scope of Rule 201 to judicial notice of adjudicative, not legislative, facts. See Fed.R.Evid. 201(a) advisory committee notes. Here, the fact of which the district court took judicial notice, i.e., the penalty for the crimes with which Gavegnano was charged, is fixed, does not change from case to case, and applies to all cases in which those crimes were charged. Hence, it is a legislative, not an adjudicative fact. See, e.g., United States v. Williams, 442 F.3d 1259, 1261 (10th Cir.2006) (citations omitted) (“statutes are considered legislative facts” of which the authority of courts to take judicial notice is “unquestionable.”). Accordingly, the district court was under no obligation to follow the jury instruction requirement set out in Rule 201(g), and it committed no reversible error in its failure to instruct the jury pursuant to Rule 201(g).

In a related claim, Gavegnano also challenges the district court’s taking of judicial notice of the element that the crimes with which he was charged were punishable by more than one year in prison if committed in the United States, an element required under 18 U.S.C. § 3261, claiming that the court’s action precluded him from requiring that the Government prove each element of the charges against him beyond a reasonable doubt. He supports his argument by' reference to Virginia state law statutes regarding obscene material that carry sentences of less than a year. He also asserts that one of the charges carried a penalty of “zero to five” years. His argument is without merit.

First, as discussed above, the district court properly may take judicial notice of legislative facts, and such legislative facts include the interpretation of statutes. Fed.R.Evid. 201(a) advisory comm, notes. Moreover, the requirements of Rule 201(b) state that a “judicially noticed fact must be one that is either (1) generally known within the territorial jurisdiction of the trial court, or (2) capable of accurate and *957 ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Here, the length of punishment is determined simply by reading the text of the statutes violated, each of which provide that violation of the statute is punishable by more than one year in prison. *

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Bluebook (online)
305 F. App'x 954, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gavegnano-ca4-2009.