United States v. Johnny Wolfenbarger

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 3, 2024
• Docket: 22-10188
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 3 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-10188

Plaintiff-Appellee, D.C. No. 5:16-cr-00519-EJD-1 v.

JOHNNY RAY WOLFENBARGER, AKA MEMORANDUM* John Wolfenbarger,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California Edward J. Davila, District Judge, Presiding

Submitted January 3, 2024**

Before: BENNETT, BADE, and COLLINS, Circuit Judges.

Defendant Johnny Ray Wolfenbarger appeals from his convictions for

attempted production of child pornography, attempted coercion and enticement of

minors, and receipt of child pornography. He makes two arguments: the district

court (1) violated his Sixth Amendment right to a public trial when, based on

* 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). COVID-19 concerns, it barred in-person public access to his trial and limited the

public to only audio access, and (2) erred in denying his motion to suppress

evidence found in his Yahoo email account because Yahoo acted as a government

agent when it conducted the search. We have jurisdiction under 28 U.S.C. § 1291

and affirm.

1. The government argues that Wolfenbarger waived appellate review of

his Sixth Amendment claim because he never objected to the district court’s

proposal to bar in-person public access and allow only audio access. We need not

address waiver because we agree with the government’s alternative argument that

the claim, if not waived, is subject to plain-error review (as Wolfenbarger

concedes), and is foreclosed by United States v. Hougen, 76 F.4th 805 (9th Cir.

2023).

Hougen was decided after Wolfenbarger filed his opening brief, and is

materially indistinguishable.1 Hougen’s analysis of the fourth plain-error factor—

whether the error “will seriously impugn the fairness, integrity, or public reputation

of the court,” id. at 811—is applicable here. Like the defendant in Hougen,

Wolfenbarger has shown, at best, only “minimal . . . harm to the fairness of [his]

trial” because he “offers no evidence that anyone was denied access to the trial,

1 The government extensively relied on Hougen in its answering brief. In his reply brief, Wolfenbarger provides no response to the government’s extensive arguments based on Hougen, and does not even cite the case.

2 that anything material (let alone any misconduct) occurred at trial that did not

come through on the [audio] or transcripts, nor that the proceedings, or our review

thereof, were affected at all by the lack of visual access.” Id. at 812. Such

minimal harm “is not likely as grave as the damage to fairness, integrity, and

reputation that would be caused by vacating an otherwise fair conviction.” Id.

2. Wolfenbarger concedes that his challenge to the denial of his motion

to suppress is foreclosed by United States v. Rosenow, 50 F.4th 715 (9th Cir.

2022), cert. denied, 143 S. Ct. 786 (2023). Rosenow was decided while this appeal

was pending, and it involved the same investigation by Yahoo into Philippines

webcam child pornography that Wolfenbarger challenges here. Rosenow

addressed the same legal issue presented here: whether Yahoo was a government

actor when it searched a user’s account. See id. at 724. Wolfenbarger argues that

Rosenow was wrongly decided. But as a three-judge panel, we are bound by

Rosenow. See Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc). We

therefore reject Wolfenbarger’s challenge.

AFFIRMED.