United States v. Watts

264 F. App'x 493
Court of Appeals for the Sixth Circuit·Decided February 20, 2008·No. No. 07-5330·Published·Cited by 1 cases

Opinion

OPINION

RONALD LEE GILMAN, Circuit Judge.

In November of 2006, Donald E. Watts was convicted on one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). He was sentenced to 102 months of imprisonment. Watts’s sole issue raised on appeal is the prosecutor’s alleged misconduct during her closing and rebuttal arguments. For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

A. Factual background

In March of 2006, the eMachine-brand computer used by the Somerset Elite Training Center gymnasium (Somerset Elite) began to experience technical problems. At the time, Watts was a co-owner of Somerset Elite. The computer was taken by Barbara Lawson, an employee of Somerset Elite, to Mike Velez, a computer repairman. During his repair work, the title of a file caught Velez’s eye. He said that the title contained references to a “[s]even-year-old girl being raped, something of that sort.”

After discovering that initial file, Velez “looked deeper” into the computer and “started to pull up some of the video files.” He watched part of a video involving child pornography, and then called Lawson. The two of them began to search the computer more thoroughly. A further investigation of the computer by Velez revealed a number of online chatroom conversations with various young gilds.

The next day, Velez showed Aislynn Frei, the other co-owner of Somerset Elite, and Randy Goff, a local police officer, a short segment of the video file that he had initially discovered. Velez also told Officer Goff about the chatroom transcripts he found under Watts’s user name. With Frei’s consent, Goff took the computer with him after viewing the video. Frei also consented to Goffs request to examine a home-built computer that had previously been used by Somerset Elite. Goff then contacted Special Agent Donnie Kidd of the FBI for further assistance.

[495]*495Agent Kidd prepared a search warrant for the two computers. Based on the information from Officer Goff regarding the chatroom transcripts, Kidd went to Somerset Elite in order to speak with Watts. Kidd did not have an arrest warrant and made no attempt to take Watts into custody. He referred to the interaction with Watts as an “interview” rather than an interrogation. Watts cooperated with Kidd and answered his questions -without any legal compulsion to do so.

According to Kidd’s testimony at trial, Watts confessed during the interview to using both of the seized computers to search for and download child pornography. During the conversation, Watts told Kidd that he would “come in late at night, sometimes after midnight, would be drinking, would get on the computer and would surf the Internet, again looking for porn to include adult and child pornography.” He used a file-sharing program called Lime-Wire to locate pornography by typing in words such as “young” and “video.”

Watts told Kidd that he thought he had deleted all of the pornographic files from the home-built computer, but said there were probably 12 or 13 pornographic video files remaining on the eMachine computer that he did not have time to erase. He further explained that “there should be one, if not two, short video clips containing child pornography.” Watts provided Kidd with the file path that could be used to locate the saved files on the hard drive. According to Kidd’s testimony, Watts also provided Kidd with the username and password that Watts had used to access the computer. Watts told Kidd that this so-called “owner” account was his own personal account that was not used by the other Somerset Elite employees.

Kidd also asked Watts about the online chatroom files that Velez had discovered. Watts admitted that he used the computer to chat with students at Somerset Elite. He provided Kidd with two specific screen names that Watts had used—“Donflipflop” and “Success is trying one more time and you fall”—and told Kidd of a third screen name that he could not remember exactly but referred to his dog dying.

Both of the computers were sent to the Electronic Crimes Section of the Kentucky State Police, where they were forensically examined by Detective Christopher Frazier. According to his trial testimony, Frazier’s forensic examination confirmed much of the information that Watts had reportedly told Kidd. The home-built computer contained over 100 images of child pornography. These files were found in the “unallocated space” of the computer, meaning space that was not otherwise being used.

Frazier found one video file containing child pornography on the eMachine computer. He also found 11 other pornographic videos that contained words in their titles that might have suggested that they contained child pornography, but that in fact featured adult pornography. Frazier further testified that (1) the files were found in the exact folder that Watts had specified to Kidd, (2) the files could be accessed only through the owner account with the user name and password that Watts had provided, and (3) the files had been downloaded using LimeWire.

With respect to the online chats that Velez initially discovered, Frazier’s examination of the eMachine computer revealed over 5,100 pages of chatroom transcripts. The chatroom logs were filed under the user name “Donflipflop” and also featured the screen name (the name seen by people who are chatting with the user) of “Success is trying one more time and you fall.” According to Frazier, the people chatting with “Success is trying one more time and you fall” frequently addressed the screen name as “Donnie.”

[496]*496The content of the chatroom transcripts was not at issue during the trial, but the connection between the chatroom conversations and the downloading of the pornographic files was disputed. Specifically, at approximately 12:04 a.m. on February 16, 2006, someone using the screen name “Success is trying one more time and you fall” was engaged in a chat. Not long thereafter, someone was accessing pornographic video files in the LimeWire folder that was identified by Watts and confirmed by Frazier’s investigation. The videos were opened at 12:48 a.m., 1:09 a.m., and 2:40 a.m. Watts’s own computer expert testified that a number of the pornographic files that were found on the eMachine computer were downloaded in the same general period of time when someone was engaged in online chats using the screen names “Success is trying one more time and you fall” and “Four legs got run over sniff sniff.”

During her closing argument, the prosecutor made repeated references to the conversation between Watts and Agent Kidd, which she described as a confession. She paraphrased what Watts allegedly said to Kidd and presented those statements as direct quotes. Watts now appeals on the basis of those statements, which he alleges are misrepresentations of the evidence that confused the jury and prejudiced him. He also asserts that the prosecutor made improper statements infringing upon his right not to testify and commenting on his honesty. The specific objected-to statements will be addressed in detail in the analysis below.

B. Procedural background

Watts was indicted in June of 2006 and tried five months later. The trial lasted one and a half days, resulting in a jury verdict of guilty. During the trial, Agent Kidd testified regarding Watts’s statements to him.

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United States v. Watts, 264 F. App'x 493 (6th Cir. 2008).

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