United States v. Hoover

95 F.4th 763

UNITED STATES of America, Plaintiff - Appellee, v. Michael Scott HOOVER, Defendant - Appellant.

No. 22-4322

United States Court of Appeals, Fourth Circuit

Argued: January 24, 2024

Decided: March 12, 2024

Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Kenneth D. Bell, District Judge. (5:20-cr-00088-KDB-DSC-1)

ARGUED: David Q. Burgess, DAVID BURGESS LAW, Charlotte, North Carolina, for Appellant. Anthony J. Enright, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee ON BRIEF: Dena J. King, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Before WILKINSON, Circuit Judge, MOTZ, Senior Circuit Judge, and John A. GIBNEY, Jr., Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed by published opinion. Senior Judge Motz wrote the opinion, in which Judge Wilkinson and Senior Judge Gibney joined.

DIANA GRIBBON MOTZ, Senior Circuit Judge:

Michael Scott Hoover challenges his conviction and sentence for crimes related to his production and possession of child pornography. He argues the trial court erred in several evidentiary rulings, in denying his Rule 29 motion for judgment of acquittal, and in instructing the jury on the elements of child pornography production. He also maintains that the district court procedurally erred in sentencing him to 840 months' imprisonment. We have carefully considered these arguments and concluded that none are meritorious. Accordingly, we affirm.

I.

In August 2019, law enforcement authorities arrested Hoover for multiple counts of indecent liberties with a minor in violation of North Carolina law. Following his arrest, his employer, Wells Fargo, searched his work-issued iPhone and discovered a video of a minor boy masturbating. A North Carolina forensic investigator then searched that phone pursuant to a search warrant and discovered three more videos and multiple pictures of another minor boy masturbating. The investigation also uncovered web searches on Hoover's phone for "selfies boy masterbating [sic]," "NAMBLA [North American Man/Boy Love Association]," and other web-search queries indicating sexual interest in minor boys.

Investigators identified the two minors depicted in the illicit content found on Hoover's phone as Victim One and Victim Two, both relatives of Hoover. In June and September 2018, when Hoover recorded the videos of Victim One, the boy was 17 years old. In August 2019, when Hoover recorded the video of Victim Two, the boy was 12 years old. Victim Two caught Hoover recording him and asked him to delete the video, but Hoover did not do so. Victim One did not know he was being recorded on either occasion.

Both Victim One and Victim Two reported a long period of inappropriate comments and sexual abuse by Hoover in the time leading up to the creation of the videos. Each victim said that Hoover had isolated him at Hoover's home or while on trips, and then pressured the minor to masturbate in front of Hoover, despite the minor not wanting to do so. Six other victims also came forward, reporting to investigators that Hoover had sexually abused them as minor boys prior to or around the same time as Hoover's sexual abuse of Victim One and Victim Two.

In October 2020, the Government indicted Hoover in the Western District of North Carolina for two counts of production of child pornography, in violation of 18 U.S.C. § 2251(a) — one charge for his conduct involving Victim One, and another for his conduct involving Victim Two — and one count of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B), for the illicit content of Victim One and Victim Two found on the phone. In April 2021, the district court held a one-day jury trial. The Government presented testimony from several witnesses, including Victim One, Victim Two, and the North Carolina forensic examiner who searched Hoover's phone. The prosecution also offered evidence of the sexually explicit materials and web searches discovered on Hoover's phone. After the Government's presentation of its evidence, Hoover moved for judgment of acquittal pursuant to Rule 29, asserting a lack of sufficient evidence. The district court denied the motion. Hoover did not present any evidence in his defense. The jury deliberated for less than 30 minutes and found Hoover guilty on all three counts.

The presentence report calculated Hoover's recommended sentence under the U.S. Sentencing Guidelines ("the Guidelines") to be 840 months, or 70 years. The district court adopted the report with minor modifications and sentenced Hoover to 70 years' imprisonment. Hoover then timely filed this appeal.

II.

We first consider Hoover's evidentiary challenges to the admission of (1) the web searches discovered on his phone and (2) the testimony of Victim One and Victim Two.

A.

Hoover maintains that Federal Rule of Evidence 404(b) bars admission of the web searches on his phone. He claims that the web searches are propensity evidence not "intrinsic" to the charged conduct involving Victim One and Victim Two. See United States v. Bush, 944 F.3d 189, 195-96 (4th Cir. 2019).

Hoover did not make this argument at trial. Instead, he merely objected to the admission of the web searches on the ground that they were irrelevant and unduly prejudicial under Federal Rule of Evidence 403. We therefore review his appellate challenge for plain error. See United States v. Zayyad, 741 F.3d 452, 458-59 (4th Cir. 2014). To obtain relief, Hoover must show (1) "an error" (2) that is "plain," (3) that "affect[ed] substantial rights," and (4) that "had a serious effect on the fairness, integrity, or public reputation of judicial proceedings." Greer v. United States, 593 U.S. 503, 507-08, 141 S.Ct. 2090, 210 L.Ed.2d 121 (2021) (cleaned up).

Rule 404(b) bars the admission of "[e]vidence of any other crime, wrong, or act . . . to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." Fed. R. Evid. 404(b)(1). The Rule bars extrinsic evidence, that is, evidence "separate from or unrelated to the charged offenses." Bush, 944 F.3d at 195 (cleaned up). But Rule 404(b)(1)'s limitation on propensity evidence does not apply to intrinsic evidence. Thus, it does not bar evidence that "is inextricably intertwined with the evidence regarding the charged offense [because] it forms an integral and natural part of the witness's accounts of the circumstances surrounding the offenses for which the defendant was indicted," or "serves to complete the story of the crime on trial." Id. at 196.

The district court did not err in holding the web searches were intrinsic to Hoover's production and possession offenses. The web-search queries found on Hoover's phone included "selfies boy oh boy," "selfies boy," "NAMBLA," and "selfies boy masterbating." The forensic examiner discovered these web searches on the same phone that Hoover used to make and store videos and pictures of the victims masturbating. These web searches reveal Hoover's interest in depictions of minor boys masturbating, "the same sort of conduct" underlying the charged offenses. See United States v. Ebert, 61 F.4th 394, 403 (4th Cir. 2023) (cleaned up).

Hoover also made the web searches around the same time as his criminal conduct. Although most of the web searches were undated, they could not have been made any earlier than March 2017, when the iPhone was imported from China.¹ Hoover's abhorrent behavior toward Victim One and Victim Two had begun by or before 2017 — a pattern of abuse the trial court also properly found intrinsic to the charged offenses. Infra II.B.

This might be a closer question had law enforcement authorities discovered the web searches on a different device than the phone Hoover used to record and store child pornography. But here the web searches "complete the story of the crime" by helping explain to the jury how Hoover used his phone: as a tool to discover, view, create, and store depictions of minor boys masturbating. See Bush, 944 F.3d at 196 (cleaned up). Omitting evidence of the web searches would have risked providing the jury "an incomplete or inaccurate view of other evidence" discovered on Hoover's phone, and of his intent to produce illicit content. See United States v. Brizuela, 962 F.3d 784, 795 (4th Cir. 2020).

Hoover argues in the alternative that the trial court erred in failing to instruct the jury that it could not consider the web searches as evidence of the possession charge. He did not ask for such an instruction at trial, and the district court did not plainly err in failing to give such an instruction sua sponte. See United States v. Johnson, 945 F.3d 174, 177-78 (4th Cir. 2019). The possession charge involved the same sexually explicit depictions of Victim One and Victim Two that underlay the production charges, making the web searches intrinsic to all three offenses.

B.

Hoover next maintains that the district court violated the Federal Rules of Evidence in admitting, pursuant to Rule 414, Victim One's testimony regarding Hoover's long-running sexual abuse of Victim One. That is so, he claims, because Rule 414 governs the admission of evidence of "other child molestation" against defendants accused of "child molestation" offenses, and Victim One was not a "child" for purposes of the Rule. See Fed. R. Evid. 414(a), (d)(1).

But the court did not admit Victim One's testimony as evidence of "other child molestation" under Rule 414, but instead on the basis that Victim One's testimony was "intrinsic" to the charges involving Victim One. And Victim One's testimony clearly was intrinsic to those charges: Victim One detailed a long period in which Hoover isolated Victim One, gave him alcohol, showed him pornography, and pressured him to masturbate in front of Hoover. Hoover's predatory...