United States v. Veater

576 F. App'x 846
CourtCourt of Appeals for the Tenth Circuit
DecidedAugust 22, 2014
Docket13-4002
StatusUnpublished
Cited by1 cases

This text of 576 F. App'x 846 (United States v. Veater) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth 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. Veater, 576 F. App'x 846 (10th Cir. 2014).

Opinion

ORDER AND JUDGMENT *

DAVID M. EBEL, Circuit Judge.

A jury convicted Defendant-Appellant Garrick Veater of one count each of production and possession of child pornography, in violation of 18 U.S.C. §§ 2251(a) and 2252(a)(5)(B). With respect to the production count, the jury returned a special verdict unanimously finding Veater guilty of producing thirty-eight pornographic images of the child victim. The district court sentenced Veater to 204 months’ imprisonment to be followed by 180 months’ supervised release. Veater now appeals his conviction, asserting three unpreserved trial court errors: (1) that the district court violated the Confrontation Clause by limiting his cross-examination of the victim’s mother; (2) that the district court erroneously admitted irrelevant and prejudicial propensity evidence; and (3) that the prosecutor improperly vouched for the victim’s credibility in her closing statements to the jury. Exercising jurisdiction under 28 U.S.C. § 1291, we now AFFIRM.

I. BACKGROUND

Veater and his girlfriend, Jane Doe, began living together around 2006. The cou- *848 pie lived in an apartment in Provo, Utah with three children: their two-year-old daughter, and Doe’s eight-year-old son and five-year-old daughter. By all accounts, the couple’s relationship began to sour in the year or so leading up to the accusations that formed the basis for this prosecution. Doe distrusted Veater with other women, so she would regularly monitor the call and text message activity on his personal and work cell phones. In early September 2009, around midnight, she was doing just that when she discovered three nude photos of her five-year-old daughter (“the victim”) in the text message outbox of Veater’s work phone. The photos had been sent to Veater’s personal phone. Identifying, among other things, the tile and linoleum in the background of the pictures, Doe recognized that the photos had been taken in the couple’s bathroom. One of the photos depicted the lower portion of the victim’s nude body as she sat in the bathtub, while the other two photos were more focused on the victim’s genitalia and buttocks. In the third photo, for example, the victim was lying on her back with her legs over her head and obscuring her face. Doe questioned the victim about the picture the next morning, and the victim admitted that Veater had taken similar pictures of her on more than one occasion. Doe notified local police, who detained Veater and seized both of his phones as well as his home computer. A subsequent forensic analysis of the cell phones, the personal phone’s SD card, and the computer’s hard drive recovered thirty-eight different pornographic images of the victim. 1 Eighteen of those images were shown to the jury during the government’s case, and the remaining twenty images were included on a CD for the jury to review during deliberations. The automatic naming conventions for photos taken on Veater’s phones allowed the government to present evidence on when each of the images was taken. The images were taken over the course of a week between Sunday, August 23, 2009 and Sunday, August 30, 2009. They were generally taken late in the evening or very early in the morning, and they were often captured in quick succession of two to six images at a time. The naming conventions also helped the government trace the images through Veater’s electronic devices. While the majority of the pictures were taken with Veater’s personal phone, others were taken with his work phone and transferred by text message to his personal phone. Most of those images were then transferred by USB cable to Veater’s personal computer, though some of the images were recovered from the personal phone’s SD card alone. Many of the pictures recovered from Veater’s computer were either buried within subfolders of a video game that Veater often played or retrieved from “orphan files” that had been superficially deleted but nonetheless remained in the master file table.

Beyond this forensic analysis based on the naming conventions, the images were also tied to Veater through direct testimony from Doe and the victim. For example, six images that forensic analysis confirmed as being taken on Veater’s personal phone over a period of fifteen minutes starting at 6 a.m. in the morning were also identified through Doe’s testimony that the couple’s couch, floor, and towels could be seen in the background of the images. With respect to an image that appeared to show Veater’s penis touching the victim’s buttocks and back, moreover, Doe identified *849 the victim based on her tan lines and identified Veater based on his underwear and her knowledge of him physically. Doe further testified that she did not take the pictures herself and that no other men were in the couple’s apartment during the relevant time. The government also elicited incriminating testimony from the victim, who was eight years old at the time of trial. After asserting that Veater no longer lived with their family because “[h]e did bad stuff,” the victim testified that Veater used his cell phone to take naked pictures of her “middle” — which she described as the area between her knees and her shoulders — when her mother was asleep in the other room. Supp. Vol. 2 at 122-28. She also testified that she had asked Veater to stop taking pictures of her, but that he said “no.” Id. at 124. Even though at least one of the recovered images appeared to show some sexual contact, the victim maintained that Veater had never touched her inappropriately.

For his part, Veater took the stand and testified that he had never seen, let alone produced, any of the images he was accused of producing and possessing. He presented an alibi defense with respect to one set of the images, asserting that he could not have taken the photos because he was at his mother’s house when they were produced. The government vigorously challenged this defense by pointing out that some of Veater’s alibi witnesses were drinking on the night in question, that there was conflicting testimony over when exactly Veater left his mother’s party, and maybe most importantly, that Veater himself admitted that he had the phone that produced the images with him the entire time he was at his mother’s house. Veater also claimed that another set of the images were taken while he was at work, but according to his work time-sheets, none of the images were produced while Veater was at work. Neither Veater nor anyone else had a specific recollection as to his whereabouts or activities on the day that the final set of images was produced. Testifying that he had an argument with Doe around the time of his mother’s party, during which he told Doe that he was going to seek full custody of their two-year-old daughter, Veater’s defense theory was that Doe had taken the pictures of the victim and placed them on his devices in an elaborate attempt to secure custody of their daughter.

II. DISCUSSION

Veater asserts three claims on appeal which, he says, warrant the reversal of his convictions.

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Bluebook (online)
576 F. App'x 846, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-veater-ca10-2014.