NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________
No. 18-2298 ______________
UNITED STATES OF AMERICA,
v.
GREGORY JOHN SCHAFFER,
Appellant ______________
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. No. 2:13-cr-00183-001) District Judge: Hon. Jose L. Linares ______________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) March 12, 2019 ______________
Before: MCKEE, PORTER, and ROTH, Circuit Judges.
(Filed: June 24, 2019)
______________
OPINION* ______________
ROTH, Circuit Judge
* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. Gregory John Schaffer appeals his conviction for producing and possessing child
pornography. Schaffer sexually abused two minor children in locations including his
house, his office, and hotel rooms. He took pictures and appeared in videos of the
assaults found on his laptop and external hard drive.1 Schaffer was charged with and
convicted of two counts of production of child pornography2 and one count of possession
of child pornography.3 He was sentenced to 480 months’ imprisonment.4
I5
On appeal, Schaffer argues that the District Court erred in denying his motion to
suppress images retrieved from his computer and external hard drive (collectively, the
computer evidence). He also argues that the District Court erred in denying his motion
for a judgment of acquittal under Fed. R. Crim. P. 29(a).
A. MOTION TO SUPPRESS
Schaffer argues that the computer evidence should have been excluded because
the government inexplicably lost his laptop, and that this loss was compounded by
technical irregularities regarding the Government’s forensic examination. He claims that
the inability of Schaffer’s expert to examine the laptop abridged Schaffer’s Constitutional
1 The computer and hard drive contained at least five sexually explicit videos of Schaffer’s victims, nude photographs of one victim, and at least 85 other videos of underage boys and girls engaged in sexual activity. The government states that the 85 videos were the equivalent of 6,375 images of child sexual exploitation. 2 18 U.S.C. § 2251(a). 3 18 U.S.C. § 2252A(a)(5)(B). 4 This sentence was within the Guidelines range of 960 months. Schaffer does not contest his sentence on appeal. 5 The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231. This Court has jurisdiction pursuant to 28 U.S.C. § 1291. 2 rights to due process of law, confrontation, and the opportunity to present a meaningful
defense.
We disagree. First, the computer evidence was preserved by an “exact copy,” a
forensic image prepared by a federal digital forensics expert before the expert’s
examination of the computer’s contents. Second, even assuming that the forensic image
did not afford Schaffer the equivalent level of information that the actual hard drive
would have provided, Schaffer’s due process claim still fails. Although loss or
destruction of evidence may constitute a due process violation,6 “[a] defendant who
claims destroyed evidence might have proved exculpatory . . . has to show the
[government’s] bad faith in ordering or permitting its destruction. Without a showing of
bad faith, failure to preserve evidence that might be of use to a criminal defendant . . . is
not a denial of due process.”7 To prove bad faith, there must be a “showing that the
Government intentionally [acted] to gain some tactical advantage over [the defendant] . . .
.”8 We review for clear error the District Court’s finding that the government did not act
in bad faith.9
6 California v. Trombetta, 467 U.S. 479, 489 (1984) (“[E]vidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.”). 7 United States v. Deaner, 1 F.3d 192, 200 (3d Cir. 1993) (citing Arizona v. Youngblood, 488 U.S. 51, 58 (1988)). 8 Youngblood, 488 U.S. at 57 (quoting United States v. Marion, 404 U.S. 307, 325 (1971)). 9 United States v. Zaragoza-Moreira, 780 F.3d 971, 977 (9th Cir. 2015). 3 Schaffer fails to demonstrate that the government acted in bad faith. The
unfortunate misplacement of Schaffer’s laptop does not constitute an intentional act to
gain a tactical advantage over Schaffer. Indeed, Schaffer himself told the District Court
he “d[id] not question the veracity of the[] [government’s sworn] statements” about the
loss of the laptop, and that “it is clear that the government did not act in ‘bad faith’ when
it lost the laptop.”10
This concession by Schaffer is supported by the government’s three sworn
statements from the principal individuals who handled Schaffer’s laptop between the time
it was examined and his trial. Neither the agents who investigated Schaffer nor the
Assistant U.S. Attorneys in New Jersey who prosecuted him had control over the laptop
when it disappeared. There was no animus toward Schafer. Furthermore, it was “highly
likely that all relevant evidence was preserved in the forensic images of the hard
drive[].”11 The government gained no tactical advantage by losing a laptop that had no
exculpatory value. The District Court therefore did not err in denying Schaffer’s motion
to suppress the computer evidence.
B. MOTION FOR ACQUITTAL
Schaffer next contends that the District Court erred by denying his motion for a
judgment of acquittal related to the production charges because there was no evidence he
transferred images from a recording device to the computer or hard drive. We exercise
10 Supp. App. 102. 11 United States v. McNealy, 625 F.3d 858, 870 (5th Cir. 2010). 4 plenary review over an appeal for a grant of a judgment of acquittal.12 The dispositive
question for any claim regarding the sufficiency of the evidence is “whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.”13
When ruling on the motion, the District Court identified five pieces of evidence
that the government could present to lead a reasonable jury to conclude Schaffer created
the videos and images and then placed them on his laptop and hard drive. That evidence
was that (1) the sexually explicit videos of his victims were found on Schaffer’s laptop,
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________
No. 18-2298 ______________
UNITED STATES OF AMERICA,
v.
GREGORY JOHN SCHAFFER,
Appellant ______________
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. No. 2:13-cr-00183-001) District Judge: Hon. Jose L. Linares ______________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) March 12, 2019 ______________
Before: MCKEE, PORTER, and ROTH, Circuit Judges.
(Filed: June 24, 2019)
______________
OPINION* ______________
ROTH, Circuit Judge
* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. Gregory John Schaffer appeals his conviction for producing and possessing child
pornography. Schaffer sexually abused two minor children in locations including his
house, his office, and hotel rooms. He took pictures and appeared in videos of the
assaults found on his laptop and external hard drive.1 Schaffer was charged with and
convicted of two counts of production of child pornography2 and one count of possession
of child pornography.3 He was sentenced to 480 months’ imprisonment.4
I5
On appeal, Schaffer argues that the District Court erred in denying his motion to
suppress images retrieved from his computer and external hard drive (collectively, the
computer evidence). He also argues that the District Court erred in denying his motion
for a judgment of acquittal under Fed. R. Crim. P. 29(a).
A. MOTION TO SUPPRESS
Schaffer argues that the computer evidence should have been excluded because
the government inexplicably lost his laptop, and that this loss was compounded by
technical irregularities regarding the Government’s forensic examination. He claims that
the inability of Schaffer’s expert to examine the laptop abridged Schaffer’s Constitutional
1 The computer and hard drive contained at least five sexually explicit videos of Schaffer’s victims, nude photographs of one victim, and at least 85 other videos of underage boys and girls engaged in sexual activity. The government states that the 85 videos were the equivalent of 6,375 images of child sexual exploitation. 2 18 U.S.C. § 2251(a). 3 18 U.S.C. § 2252A(a)(5)(B). 4 This sentence was within the Guidelines range of 960 months. Schaffer does not contest his sentence on appeal. 5 The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231. This Court has jurisdiction pursuant to 28 U.S.C. § 1291. 2 rights to due process of law, confrontation, and the opportunity to present a meaningful
defense.
We disagree. First, the computer evidence was preserved by an “exact copy,” a
forensic image prepared by a federal digital forensics expert before the expert’s
examination of the computer’s contents. Second, even assuming that the forensic image
did not afford Schaffer the equivalent level of information that the actual hard drive
would have provided, Schaffer’s due process claim still fails. Although loss or
destruction of evidence may constitute a due process violation,6 “[a] defendant who
claims destroyed evidence might have proved exculpatory . . . has to show the
[government’s] bad faith in ordering or permitting its destruction. Without a showing of
bad faith, failure to preserve evidence that might be of use to a criminal defendant . . . is
not a denial of due process.”7 To prove bad faith, there must be a “showing that the
Government intentionally [acted] to gain some tactical advantage over [the defendant] . . .
.”8 We review for clear error the District Court’s finding that the government did not act
in bad faith.9
6 California v. Trombetta, 467 U.S. 479, 489 (1984) (“[E]vidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.”). 7 United States v. Deaner, 1 F.3d 192, 200 (3d Cir. 1993) (citing Arizona v. Youngblood, 488 U.S. 51, 58 (1988)). 8 Youngblood, 488 U.S. at 57 (quoting United States v. Marion, 404 U.S. 307, 325 (1971)). 9 United States v. Zaragoza-Moreira, 780 F.3d 971, 977 (9th Cir. 2015). 3 Schaffer fails to demonstrate that the government acted in bad faith. The
unfortunate misplacement of Schaffer’s laptop does not constitute an intentional act to
gain a tactical advantage over Schaffer. Indeed, Schaffer himself told the District Court
he “d[id] not question the veracity of the[] [government’s sworn] statements” about the
loss of the laptop, and that “it is clear that the government did not act in ‘bad faith’ when
it lost the laptop.”10
This concession by Schaffer is supported by the government’s three sworn
statements from the principal individuals who handled Schaffer’s laptop between the time
it was examined and his trial. Neither the agents who investigated Schaffer nor the
Assistant U.S. Attorneys in New Jersey who prosecuted him had control over the laptop
when it disappeared. There was no animus toward Schafer. Furthermore, it was “highly
likely that all relevant evidence was preserved in the forensic images of the hard
drive[].”11 The government gained no tactical advantage by losing a laptop that had no
exculpatory value. The District Court therefore did not err in denying Schaffer’s motion
to suppress the computer evidence.
B. MOTION FOR ACQUITTAL
Schaffer next contends that the District Court erred by denying his motion for a
judgment of acquittal related to the production charges because there was no evidence he
transferred images from a recording device to the computer or hard drive. We exercise
10 Supp. App. 102. 11 United States v. McNealy, 625 F.3d 858, 870 (5th Cir. 2010). 4 plenary review over an appeal for a grant of a judgment of acquittal.12 The dispositive
question for any claim regarding the sufficiency of the evidence is “whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.”13
When ruling on the motion, the District Court identified five pieces of evidence
that the government could present to lead a reasonable jury to conclude Schaffer created
the videos and images and then placed them on his laptop and hard drive. That evidence
was that (1) the sexually explicit videos of his victims were found on Schaffer’s laptop,
(2) Schaffer’s laptop contained copies of the sexually explicit videos of one of his victims
that also existed on Schaffer’s desktop computer, (3) the sexually explicit photographs
that Schaffer took of one of his victims were found on Schaffer’s laptop, (4) Schaffer’s
hard drive contained the sexually explicit videos of his victims, along with the sexually
explicit photographs of one of his victims, and (5) a federal investigator testified that the
sexually explicit videos of both victims, along with the sexually explicit photographs of
one victim, among other files, were backed up from Schaffer’s laptop to Schaffer’s hard
drive in May 2012, before investigators seized the laptop and desktop.
Schaffer concedes that he took the images and participated in the inappropriate
encounters with his victims but argues that the evidence detailed by the trial court did not
12 United States v. Caraballo-Rodriguez, 726 F.3d 418, 424 (3d Cir. 2013) (en banc). 13 Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also United States v. Johnson, 302 F.3d 139, 149 (3d Cir. 2002). 5 provide any direct link to suggest that he himself transferred recorded images to the
laptop or the external hard drive.
Schaffer’s argument that circumstantial evidence cannot prove his guilt is
unpersuasive. The government can meet its burden of proof by presenting circumstantial
evidence as long as inferences drawn from that evidence “bear a ‘logical or convincing
connection to established fact.’”14 The government has done so here. Schaffer had
exclusive control over the computer evidence. That computer evidence contained child
pornography created by Schaffer. The jury could reasonably have inferred that Schaffer
loaded the pornographic images of his victims onto his laptop and hard drive. We
therefore reject Schaffer’s claim.
III
For these reasons, we will affirm the judgment of the District Court.
14 Caraballo-Rodriguez, 726 F.3d at 425 (quoting United States v. Cartwright, 359 F.3d 281, 291 (3d Cir. 2004)). 6