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United States v. Napier

United States Court of Appeals, Sixth Circuit

May 20, 2015

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
JAMES O. NAPIER, Defendant-Appellant

Argued: April 28, 2015.

Page 334

Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 1:13-cr-00016--Susan J. Dlott, District Judge.

ARGUED:

Kevin M. Schad, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cincinnati, Ohio, for Appellant.

Benjamin C. Glassman, UNITED STATES ATTORNEY'S OFFICE, Cincinnati, Ohio, for Appellee.

ON BRIEF:

Kevin M. Schad, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cincinnati, Ohio, for Appellant.

Benjamin C. Glassman, UNITED STATES ATTORNEY'S OFFICE, Cincinnati, Ohio, for Appellee.

Before: CLAY, KETHLEDGE, and DONALD, Circuit Judges.

OPINION

Page 335

BERNICE BOUIE DONALD, Circuit Judge.

A jury convicted James O. Napier of twelve counts of production, transportation, distribution, and receipt of child pornography. The charges against Napier stemmed from his sexual molestation of an 11-month-old baby and a 9-year-old girl, which he filmed and then traded on the Internet with others who share child pornography. Napier now appeals, asserting four distinct arguments: (1) the district court erred in denying his motion to dismiss the indictment, which was based on alleged prosecutorial misconduct; (2) the district court erred in denying his motion for judgment of acquittal, because the government failed to prove an interstate commerce connection for all twelve counts of conviction; (3) the district court erred in admitting at trial--over Napier's objections--various electronic devices as exhibits that included markings indicating the devices were manufactured outside of the United States and a document obtained

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from Time Warner Cable Company; and (4) the district court erred in denying his motion to vacate his conviction on the distribution-of-child-pornography charge, which was allegedly afflicted by a " fatal" variance and violated Napier's due process rights. We AFFIRM the district court in all respects.

I.

A.

James O. Napier (" Napier" ) met Laura Schiele (" Schiele" ) when she was 19 years old. Napier was over thirty at that time and, according to Schiele, went by the nicknames " J-Kid" and " Kid." Napier and Schiele began dating and soon moved in together. In November 2008, the couple moved into an apartment on Sunset Avenue in Cincinnati, Ohio.

Napier and Schiele each had their own computers. Schiele used an Acer computer while Napier used a computer tower that he got from his job. Schiele was aware that Napier used his computer to, among other things, look at " regular" pornography. Schiele also was aware that Napier had a foot fetish.

On November 9, 2009, Schiele's sister, Jennifer, called and asked Schiele to babysit her 11-month-old daughter (" Victim 1" ). Schiele was unable to look after her niece, so she told Jennifer to call Napier to ask him to babysit until Schiele got off from work. Alone with his girlfriend's niece that morning, Napier raped the child and recorded the abuse in photographs and a video.

Napier traded this video with other child pornographers via email. For instance, using the moniker " Kid James" and the email address jonapier1992@gmail.com, Napier referred to this video as his " anal baby rape video." When one of these trading partners informed Napier that he had already received this video from another child pornographer called " Cyanide," Napier responded: " [T]hat's funny! I made this video myself and traded it with [C]yanide. [S]he's not two years old she's only one years old, but she was only 6 months when I filmed her. [I] don't know why [C]yanide listed her at 2 years old[.]" Another of Napier's trading partners wanted more pictures and videos of Victim 1 and also wanted to rape her himself. Over the course of several emails, Napier responded that he had made the video himself; had taken the photographs himself; and had traded the video " with a few people." Napier also repeatedly expressed that he was having difficulty making a new video because he " can't get [Victim 1] alone long enough to take new pics or make another movie yet."

One of the people with whom Napier sought to trade child pornography turned out to be FBI Special Agent Deidre Gotjen (" Agent Gotjen" ), who was located in Phoenix, Arizona. Agent Gotjen is currently assigned to the Public Corruption Squad, where she works on cases involving violent crimes against children and human trafficking. As part of the Innocent Images National Initiative, Agent Gotjen worked to " combat the sexual exploitation of children on the [I]nternet." In the summer of 2010, Agent Gotjen received a tip that the website " EuroDisc" was advertising the sale of child pornography. She explored the website and verified that it offered child pornography, either for free or for sale. EuroDisc also included a link called " Guestbook," which " allowed . . . individuals who were on the site to communicate with one another." Guestbook " recorded the date, name, time, and oftentimes the e-mail address of the individual posting so that they could be contacted offline." In one Guestbook post in July 2010, a person posted the following

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message: " looking to TRADE videos and pics. [I] have nearly 100 videos and thousands of pics. [G]irls and boys all ages. [O]nly serious TRADERS reply. jonapier1992@gmail.com[.]" In other July 2010 postings advertising this email address, the poster identified himself as " Kid" and reiterated his interest in trading.

Using an assumed email address, Agent Gotjen emailed jonapier1992@gmail.com to say she was " serious" about trading. " Kid James" emailed in response, " [Y]es! [L]et's TRADE! [W]hat do you like?" After some back and forth, Agent Gotjen received an email from " Kid James" with a video file attached. The video, entitled " 47.wmv," was a compilation of movies depicting the sexual abuse of minors. Agent Gotjen sent back a corrupted video file; when " Kid James" realized he could not open the file, his communications with Agent Gotjen ended.

Agent Gotjen sought to determine jonapier1992@gmail.com's identity, first by subpoenaing Google (from whom she learned that jonapier1992's IP address was being accessed through Cincinnati Bell) and then by subpoenaing Cincinnati Bell (which led to a dead end). She then searched Google for the email address and variations thereof. This query led her to profiles on the websites FootFetishTube.com, AdultSpace.com, MySpace.com, Facebook.com, and Reunion.com. From these profiles, Agent Gotjen learned that jonapier1992 was most likely a 36-year-old man living in Cincinnati named James O. Napier. Agent Gotjen ultimately obtained Napier's license photo from the Ohio Bureau of Motor Vehicles, which matched photos from the websites she had searched on the Internet. Agent Gotjen then packaged up her work and sent it to the FBI's Cincinnati office.

Meanwhile, Napier continued living with Schiele while trading online with other child pornographers. For instance, in February 2011, he sent a number of videos with sexually explicit titles--including one entitled " 6 months old.wmv" --to someone with the email address " mynothing13@yahoo.uk." In return, Napier asked, " Do you have any younger girls? (Very young?) (The younger the better!)."

Napier and Schiele broke up around March 2012. When he moved out of their apartment on Sunset Avenue, he took his computer tower with him and Schiele kept her Acer computer. Napier promptly moved into the home of Candace Allen (" Allen" ), the mother of his 6-year-old son. Also living in the home were Allen's two other children by a different father, a 7-year-old boy and an 8-year-old girl (" Victim 2" ).

Shortly after Victim 2's ninth birthday, Napier began sexually abusing her and recording it. The details are horrific. Victim 2 identified herself as 9 years old in several of the videos. On November 23, 2012, Napier emailed a fellow child pornographer who had earlier expressed interest in trading full-length videos. Napier responded, " Sure[,] we can begin trading immediately[.] I just [sic] me a chubby 9yo[,] we've been having lots of fun[.]"

By this time, agents at the FBI's Cincinnati office had determined--after subpoenaing Time Warner Cable--that the person emailing with Agent Gotjen from jonapier1992@gmail.com had likely done so using an IP address accessed from an apartment on Sunset Avenue. Neither Napier nor Schiele still lived at this address. The apartment manager, however, provided agents with a forwarding address, at which the agents were able to locate Schiele. After meeting with agents, Schiele gave them her Acer computer. Special Agent Eric Proudfoot (" Agent Proudfoot" ) submitted the computer to forensic

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analyst Skip Burnham, asking him to " examine the computer for the presence of any images of child pornography, any references to the text string jonapier1992@gmail.com, and any text references to a particular file called 47.wmv."

Burnham found these references on the Acer computer. Burnham also found that several sequentially numbered photos taken with a Polaroid camera were missing from among the larger images on the computer. These images had been deleted, but traces of the images were left as thumbnails accessible to the computer's operating system. Burnham was able to recover the missing photos among the thumbnail images. The photos were of " a small child, an infant[,]" with an erect penis close to her mouth. Burnham reported his findings to Agent Proudfoot, who in turn again met with Schiele. Schiele identified the child as her niece. The agents then sought an arrest warrant for Napier and a search warrant for the jonapier1992@gmail.com email account.

The FBI arrested Napier on January 18, 2013. During his arrest, Napier had on his person two cellphones and a microSD memory card. These items, Napier's tower computer (which Allen provided to authorities), and the email account from Google were submitted for complete forensic analysis.

During a search of the Gmail account, Burnham found large photographs of Schiele's niece that matched the thumbnails on the Acer computer. He also found the video that Napier had made of himself abusing Victim 1; the video " was titled three different ways: 64.wmv, sixmonth-old.wmv, and movie two-year-old girl self-made.wmv." The account included a great deal of email correspondence between Napier and other child pornographers about trading child pornography. It also included more than a ...


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