United States v. William Walsh, IV

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 21, 2019
• Docket: 18-50160
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 21 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-50160

Plaintiff-Appellee, D.C. No. 3:17-cr-01269-AJB-1 v.

WILLIAM WALSH, IV, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Anthony J. Battaglia, District Judge, Presiding

Argued and Submitted November 5, 2019 Pasadena, California

Before: SCHROEDER and FRIEDLAND, Circuit Judges, and ROSENTHAL,** District Judge.

Invoking Old Chief v. United States, 519 U.S. 172 (1997), William Walsh, IV

appeals his jury conviction and sentence for two counts of distributing child

pornography, in violation of 18 U.S.C. § 2252(a)(2), and one count of possessing

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Lee H. Rosenthal, Chief United States District Judge for the Southern District of Texas, sitting by designation. child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). He also appeals three

conditions of supervised release that the parties agree were improperly imposed. We

have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. We affirm the

conviction, vacate the three supervised release conditions, and remand.

1. Walsh argues that the district court abused its discretion under Federal Rule

of Evidence 403 by admitting a limited number of pornographic images and videos

into evidence rather than accepting Walsh’s proffer to stipulate as to their nature and

to allow the government to describe their contents to the jury. Walsh contends that

because the “emotive effect assuredly overwhelmed anything else in the evidentiary

record” and unfairly prejudiced the jury against him, the “error was not harmless

beyond a reasonable doubt.”

Walsh’s Rule 403 claim fails. United States v. Ganoe, 538 F.3d 1117 (9th Cir.

2008), rejected a claim that was similar in most relevant respects. Ganoe held that

the district court acted within its discretion in rejecting a defense offer to stipulate

and “allowing the jury to briefly view a carefully limited number of [child

pornography] images that were the subjects of the charged offenses.” Id. at 1119.

The defendant in Ganoe suggested that the pornography could have been

downloaded by mistake. Id. at 1123. Walsh similarly denied knowledge, claiming

that someone else—perhaps his son or stepson—must have used his password-

protected computer for several months to complete hundreds of child pornography

2 downloads, view the contraband, and share the files. Tyrone Ganoe’s “offer to

stipulate that anyone viewing the images would have known that they met the legal

definition of child pornography did not render the evidence impermissible, because

he refused to also stipulate that the titles of the computer files alone were enough to

import knowledge of what they were.” Id. at 1119. Moreover, as we stated in

Ganoe, “term[s] in the world of child pornography” can arguably be “ambiguous as

to either the depiction of sexual conduct . . . or the age of participants.” Id. at 1119,

1123.

Like Tyrone Ganoe, Walsh did not offer to stipulate that no person, including

himself, could download the files without realizing they were child pornography.

See id. at 1123. And as in Ganoe, some of the file titles connected to Walsh’s laptop

were ambiguous as to their contents, leaving the government with the burden to show

that someone who downloaded, viewed, and organized the files would have known

what was on them. In similar circumstances, Ganoe held that “the images

themselves, published to the jury as part of the government’s detailed and

comprehensive forensic evidence regarding the downloading, viewing, categorizing,

and storing of the files”—which, in this case, included evidence that Walsh was the

only one who used his computer, and that the computer was used to view the

pornography files and buy the software used to share them—were “probative of the

state of mind with which the files were received and possessed.” Id. at 1123–24. In

3 light of these similarities to Ganoe, we disagree with Walsh that the images and

videos had scant probative value and were unfairly prejudicial.

Walsh’s additional offer—which Tyrone Ganoe did not make—to allow the

government to read narrative descriptions of the selected images and videos does not

change this conclusion. The district court compared the probative value of the

videos and images with that of the proffered stipulation and balanced that value

against the potential for unfair prejudice. The district court reasonably decided that

the videos and images were more probative of Walsh’s knowing use of his computer

to download, access, and share the pornography than his proffered stipulation,

including the narrative descriptions, and that the probative value outweighed the risk

of unfair prejudice.

As in Ganoe, the district court took careful steps to reduce that risk. See id. at

1124. These steps included thoroughly examining the jury panel in jury selection

and admitting only a very small number of the hundreds of thousands of child

pornography files the government claimed were downloaded to Walsh’s computer.

Walsh cites United States v. Merino-Balderrama, 146 F.3d 758, 762–63 (9th

Cir. 1998), in which we held that the district court had erred by allowing the jury to

view films found in the defendant’s car despite his offer to stipulate “that the films

were child pornography and had travelled in interstate commerce.” But in Merino-

Balderrama, the government offered no evidence that the defendant had ever seen

4 the videos; he saw only their box covers. Id. at 762–63. The video contents were

thus “less probative of scienter than were their box covers,” id. at 762, while the

images in this case are at least as probative of scienter as Walsh’s proposed

stipulation plus the government’s narratives. Further, in Merino-Balderrama, “the

prosecution made no fewer than ten references to the films during closing

argument.” Id. at 763. By contrast, the government’s closing statement in this case

referred to the contents of the admitted images and video clips just once, without

details. The differences between this case and Merino-Balderrama support the

conclusion that the district court did not abuse its discretion under Rule 403.

2. We agree with the parties that Standard Conditions of Supervision 4, 5, and

13 that the district court imposed are unconstitutionally vague under United States

v. Evans, 883 F.3d 1154, 1162–64 (9th Cir. 2018). We remand for the district court

to modify these conditions consistent with Evans.

3. Walsh’s request to reassign the case to a different district judge on remand to

“preserve the appearance of justice” is denied. See United States v. Walker River

Irrigation Dist., 890 F.3d 1161, 1173 (9th Cir. 2018) (quoting United States v.

Rivera, 682 F.3d 1223, 1237 (9th Cir. 2012)) (describing the standard for whether

reassignment is appropriate). There is no basis for reassignment based on bias or its

appearance.

AFFIRMED IN PART, VACATED IN PART, and REMANDED.