NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 30 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-50266
Plaintiff-Appellee, D.C. No. 2:19-cr-00495-DSF-1 v.
VAHE SARKISS, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding
Argued and Submitted March 7, 2023 Pasadena, California
Before: WATFORD and COLLINS, Circuit Judges, and S. MURPHY,** District Judge.
Appellant Vahe Sarkiss appealed his one-count jury trial conviction for
possession of child pornography under 18 U.S.C. §§ 2252A(a)(5)(B), (b)(2). After
Sarkiss was previously convicted for possession of child pornography in 2013, a
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Stephen Joseph Murphy, III, United States District Judge for the Eastern District of Michigan, sitting by designation. woman found a flash drive in the laundry room of Sarkiss’s trailer park that
contained images of Sarkiss, whom the woman recognized, and of naked young
males. The flash drive was provided to the Los Angeles Sheriff’s Department,
which in turn gave it to Sarkiss’ probation officer. Several probation officers
searched Sarkiss’s trailer and discovered a computer in the bed of his pickup truck
and a hard drive in the trunk of his car; those both contained explicit images of
children. At trial, the jury returned a verdict and convicted Sarkiss of one count of
possession of child pornography under § 2252A. The district court sentenced
Sarkiss to 135 months’ imprisonment and a life term of supervised release. Sarkiss
then raised six arguments on appeal. For the reasons below, we affirm the district
court.
First, Sarkiss argued that the district court erred in admitting his prior
conviction for possession of child pornography under Federal Rule of Evidence
414(a): “In a criminal case in which a defendant is accused of child molestation,
the court may admit evidence that the defendant committed any other child
molestation.” Id. (emphasis added). The term “child molestation” includes the
possession of child pornography under § 2252A. See United States v. Hanson, 936
F.3d 876, 881 (9th Cir. 2019). The district court admitted the prior conviction
because it was relevant under Federal Rule of Evidence 403 and because it
satisfied our court’s five-factor test for determining whether to admit evidence of a
2 prior act of sexual misconduct. See United States v. LeMay, 260 F.3d 1018, 1028
(9th Cir. 2001). It therefore did not abuse its discretion by admitting the prior
conviction. See United States v. Halamek, 5 F.4th 1081, 1087 (9th Cir. 2021).
Nor did the district court err in allowing the Government to use the prior
conviction to make a propensity argument. Rule 414 explicitly provides, without
limitation or exception, that a prior conviction “may be considered on any matter
to which it is relevant.” Fed. R. Evid. 414(a). This use of propensity evidence
does not violate due process, we have held, because “there is nothing
fundamentally unfair about the allowance of propensity evidence under Rule 414”
as long as the “protections of Rule 403 remain in place.” LeMay, 260 F.3d at
1026. What is more, we clarified in LeMay that the Government may make
propensity arguments in cases involving child molestation so long as the evidence
is not unfairly prejudicial under LeMay’s five-factor test. Id. at 1026–28. Since
the district court correctly concluded that the prior conviction was admissible
under the five LeMay factors, the district court did not err in allowing the
Government to use Sarkiss’s prior conviction to make propensity arguments.
Second, Sarkiss argued that the district court erred in denying his motion to
suppress evidence from the probation officers’ search of his trailer because the
officers lacked reasonable suspicion for the search. See United States v. Knights,
534 U.S. 112, 121 (2001) (requiring “no more than reasonable suspicion to conduct
3 a search of [a] probationer’s house”). Reasonable suspicion requires “specific,
articulable facts which, when considered with objective and reasonable inferences,
form a basis for particularized suspicion” that a person is violating the law. United
States v. Nault, 41 F.4th 1073, 1081 (9th Cir. 2022) (citation omitted). Here, the
district court properly found that the combination of the suspected child
pornography on the flash drive and Sarkiss’s prior conviction for possession of
child pornography was sufficient to establish reasonable suspicion.
Third, Sarkiss argued that the district court erred in denying Sarkiss’s
motion to dismiss the superseding indictment and by incorrectly instructing the
jury. Sarkiss argued that the superseding indictment failed to allege (and the jury
was not instructed to find) that he had possessed child pornography and knew that
the images were either transported through interstate commerce or produced using
materials that had been transported through interstate commerce. See 18 U.S.C.
§ 2252A(a)(5)(B). The statute, however, does not require the Government to
allege or prove that Sarkiss knew his crime had an interstate nexus. At most, the
jurisdictional element serves to make the crime a federal one. See Torres v. Lynch,
578 U.S. 452, 457, 467–68 (2016).
Fourth, Sarkiss argued that the district court erred in ruling that Sarkiss
opened the door to allow admission of a previously excluded sexually explicit
anime image. Under the “opening the door” doctrine, “the government may
4 introduce otherwise inadmissible evidence when the defendant opens the door by
introducing potentially misleading testimony.” United States v. Osazuwa, 564
F.3d 1169, 1175 (9th Cir. 2009) (internal quotation marks and citation omitted).
The district court did not abuse its discretion in concluding that, in light of
Sarkiss’s trial testimony specifically denying any sexual interest in children, the
probative value of the anime image in rebutting that testimony outweighed any
potential for unfair prejudice. See Fed. R. Evid. 403. Indeed, the district court’s
decision was simply a follow-through on what it had previously stated it would do
if Sarkiss “attempted to deny any sexual interest in children or claimed he did not
view pornography.” At trial, Sarkiss did precisely that. Thus, Sarkiss’s attempt to
deny any sexual interest in children opened the door for the Government to
introduce the previously inadmissible anime image.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 30 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-50266
Plaintiff-Appellee, D.C. No. 2:19-cr-00495-DSF-1 v.
VAHE SARKISS, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding
Argued and Submitted March 7, 2023 Pasadena, California
Before: WATFORD and COLLINS, Circuit Judges, and S. MURPHY,** District Judge.
Appellant Vahe Sarkiss appealed his one-count jury trial conviction for
possession of child pornography under 18 U.S.C. §§ 2252A(a)(5)(B), (b)(2). After
Sarkiss was previously convicted for possession of child pornography in 2013, a
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Stephen Joseph Murphy, III, United States District Judge for the Eastern District of Michigan, sitting by designation. woman found a flash drive in the laundry room of Sarkiss’s trailer park that
contained images of Sarkiss, whom the woman recognized, and of naked young
males. The flash drive was provided to the Los Angeles Sheriff’s Department,
which in turn gave it to Sarkiss’ probation officer. Several probation officers
searched Sarkiss’s trailer and discovered a computer in the bed of his pickup truck
and a hard drive in the trunk of his car; those both contained explicit images of
children. At trial, the jury returned a verdict and convicted Sarkiss of one count of
possession of child pornography under § 2252A. The district court sentenced
Sarkiss to 135 months’ imprisonment and a life term of supervised release. Sarkiss
then raised six arguments on appeal. For the reasons below, we affirm the district
court.
First, Sarkiss argued that the district court erred in admitting his prior
conviction for possession of child pornography under Federal Rule of Evidence
414(a): “In a criminal case in which a defendant is accused of child molestation,
the court may admit evidence that the defendant committed any other child
molestation.” Id. (emphasis added). The term “child molestation” includes the
possession of child pornography under § 2252A. See United States v. Hanson, 936
F.3d 876, 881 (9th Cir. 2019). The district court admitted the prior conviction
because it was relevant under Federal Rule of Evidence 403 and because it
satisfied our court’s five-factor test for determining whether to admit evidence of a
2 prior act of sexual misconduct. See United States v. LeMay, 260 F.3d 1018, 1028
(9th Cir. 2001). It therefore did not abuse its discretion by admitting the prior
conviction. See United States v. Halamek, 5 F.4th 1081, 1087 (9th Cir. 2021).
Nor did the district court err in allowing the Government to use the prior
conviction to make a propensity argument. Rule 414 explicitly provides, without
limitation or exception, that a prior conviction “may be considered on any matter
to which it is relevant.” Fed. R. Evid. 414(a). This use of propensity evidence
does not violate due process, we have held, because “there is nothing
fundamentally unfair about the allowance of propensity evidence under Rule 414”
as long as the “protections of Rule 403 remain in place.” LeMay, 260 F.3d at
1026. What is more, we clarified in LeMay that the Government may make
propensity arguments in cases involving child molestation so long as the evidence
is not unfairly prejudicial under LeMay’s five-factor test. Id. at 1026–28. Since
the district court correctly concluded that the prior conviction was admissible
under the five LeMay factors, the district court did not err in allowing the
Government to use Sarkiss’s prior conviction to make propensity arguments.
Second, Sarkiss argued that the district court erred in denying his motion to
suppress evidence from the probation officers’ search of his trailer because the
officers lacked reasonable suspicion for the search. See United States v. Knights,
534 U.S. 112, 121 (2001) (requiring “no more than reasonable suspicion to conduct
3 a search of [a] probationer’s house”). Reasonable suspicion requires “specific,
articulable facts which, when considered with objective and reasonable inferences,
form a basis for particularized suspicion” that a person is violating the law. United
States v. Nault, 41 F.4th 1073, 1081 (9th Cir. 2022) (citation omitted). Here, the
district court properly found that the combination of the suspected child
pornography on the flash drive and Sarkiss’s prior conviction for possession of
child pornography was sufficient to establish reasonable suspicion.
Third, Sarkiss argued that the district court erred in denying Sarkiss’s
motion to dismiss the superseding indictment and by incorrectly instructing the
jury. Sarkiss argued that the superseding indictment failed to allege (and the jury
was not instructed to find) that he had possessed child pornography and knew that
the images were either transported through interstate commerce or produced using
materials that had been transported through interstate commerce. See 18 U.S.C.
§ 2252A(a)(5)(B). The statute, however, does not require the Government to
allege or prove that Sarkiss knew his crime had an interstate nexus. At most, the
jurisdictional element serves to make the crime a federal one. See Torres v. Lynch,
578 U.S. 452, 457, 467–68 (2016).
Fourth, Sarkiss argued that the district court erred in ruling that Sarkiss
opened the door to allow admission of a previously excluded sexually explicit
anime image. Under the “opening the door” doctrine, “the government may
4 introduce otherwise inadmissible evidence when the defendant opens the door by
introducing potentially misleading testimony.” United States v. Osazuwa, 564
F.3d 1169, 1175 (9th Cir. 2009) (internal quotation marks and citation omitted).
The district court did not abuse its discretion in concluding that, in light of
Sarkiss’s trial testimony specifically denying any sexual interest in children, the
probative value of the anime image in rebutting that testimony outweighed any
potential for unfair prejudice. See Fed. R. Evid. 403. Indeed, the district court’s
decision was simply a follow-through on what it had previously stated it would do
if Sarkiss “attempted to deny any sexual interest in children or claimed he did not
view pornography.” At trial, Sarkiss did precisely that. Thus, Sarkiss’s attempt to
deny any sexual interest in children opened the door for the Government to
introduce the previously inadmissible anime image.
Fifth, Sarkiss argued that the district court violated Federal Rule of Criminal
Procedure 32 by not ruling on some of his objections to the presentence report.
But the district court did not err because it appropriately considered Sarkiss’s
objections to the presentence report. Indeed, the district court reviewed the
presentence report, provided the parties a chance to object at sentencing,
considered the relevant sentencing factors under 18 U.S.C. § 3553(a), and
expressly considered Sarkiss’s personal and health history before imposing a
sentence. The district court also sufficiently resolved all factual objections when it
5 stated that it found “the [presentencing] report to be accurate and correct in all
respects that would have an impact on the sentence” and explained that it was
thereby “adopt[ing] the report and the calculation of the advisory guidelines.” See
United States v. Riley, 335 F.3d 919, 931 (9th Cir. 2003).
Sarkiss’s other procedural objections also lack merit. The district court did
not err in considering his prior conviction because a jury does not need to find this
fact. See Alleyne v. United States, 570 U.S. 99, 111 & n.1 (2013). Nor did it err by
double counting Sarkiss’s recidivism because his prior conviction affected the
sentencing analysis only by raising his criminal history category while leaving his
offense level unchanged. Sarkiss’s objections to his sentencing enhancements,
including for possessing more than 600 images of child pornography, also fail
because the district court properly found that a preponderance of the evidence
supports these enhancements. See United States v. Treadwell, 593 F.3d 990, 1000
(9th Cir. 2010), overruled on other grounds by United States v. Miller, 953 F.3d
1095 (9th Cir. 2020).
Sixth, Sarkiss argued that the sentence imposed by the district court was
unreasonable. But the sentence was at the low end of the guidelines. And the
district court adequately considered the evidence, including Sarkiss’s personal and
health history, along with the other § 3553(a) factors in determining the sentence.
We therefore conclude that the district court did not abuse its discretion by
6 imposing the low-end sentence. See United States v. Autery, 555 F.3d 864, 871
(9th Cir. 2009).
AFFIRMED.