United States v. Jeffrey-Moe

1

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BRADLEY OMAR JEFFREY-MOE, Defendant-Appellant.

No. 21-4497

United States Court of Appeals, Fourth Circuit

June 6, 2023

UNPUBLISHED

Submitted: April 28, 2023

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Arenda L. Wright Allen District Judge. (2:19-cr-00165-AWA-RJK-1)

ON BRIEF:

Diane P. Toscano, TOSCANO LAW GROUP, Virginia Beach, Virginia; Paul G. Beers, GLENN, FELDMANN, DARBY &GOODLATTE, Roanoke Virginia, for Appellant.

Jessica D. Aber, United States Attorney, Richmond, Virginia, Anthony Mozzi, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk Virginia, for Appellee.

Before WILKINSON and NIEMEYER, Circuit Judges, and FLOYD, Senior Circuit Judge.

Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

A jury convicted Bradley Omar Jeffrey-Moe of four counts of receiving images of minors engaging in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(2), and three counts of possession of images of minors engaging in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(4)(B). The district court sentenced him to 236 months' imprisonment on each count, to be served concurrently, followed by lifetime supervised release. The court also ordered Jeffrey-Moe to pay a special assessment of $700 and a statutory victim assessment, pursuant to 18 U.S.C § 3014, of $35,000, and imposed a number of conditions of supervised release.

On appeal Jeffrey-Moe argues that the district court erred by denying his request that the Government's case agent be sequestered during the trial, and he challenges the sufficiency of the evidence. He also contends that the district court erred by imposing a lifetime term of supervised release, as well as certain standard and special conditions of supervised release, and by imposing the statutory victim assessment. Upon our review, we affirm Jeffrey-Moe's convictions, vacate several conditions of supervised release, and remand that portion of Jeffrey-Moe's sentence to the district court for further proceedings. We affirm the judgment in all other respects.

Jeffrey-Moe first argues that the district court erred by denying his request to sequester FBI Special Agent David Desy during opening statements and during the presentation of the Government's evidence. He contends that Desy's testimony was influenced by the testimony of the Government's other witnesses. Pursuant to Federal Rule of Evidence 615, a government agent is properly exempted from a witness sequestration order. United States v. Parodi, 703 F.2d 768, 773 (4th Cir. 1983). To the extent that Jeffrey-Moe assigns error to the district court for not requiring Desy to testify first, Jeffrey-Moe did not request that the court require this, nor did he object to Desy testifying after other Government witnesses. See United States v. Mitchell, 733 F.2d 327, 330 (4th Cir. 1984). Additionally, the government's case agent need not testify as the first witness for the government if there are "good reasons" for not doing so. Id.; United States v. Frazier, 417 F.2d 1138, 1139 (4th Cir. 1969). Here, the Government presented the witnesses in the chronological order in which they became involved with Jeffrey-Moe to avoid confusing the jury. This is a sufficient reason for allowing Desy to testify after other government witnesses. See Mitchell, 733 F.2d at 330; cf. Parodi, 703 F.2d at 773-75.

Next Jeffrey-Moe challenges the sufficiency of the evidence to support the jury's verdict, contending that the Government failed to prove that he had knowledge of the sexually explicit nature of the materials and that he knew minors were involved in the production of the materials. We review de novo the district court's denial of a Fed. R. Crim. P. 29 motion for judgment of acquittal. United States v. Farrell, 921 F.3d 116, 136 (4th Cir. 2019). This court should affirm if, when the evidence is viewed in the light most favorable to the government, the conviction is supported by substantial evidence. United States v. Haas, 986 F.3d 467, 477 (4th Cir. 2021). "Substantial evidence is evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." Id. (cleaned up). When resolving issues of substantial evidence, this court does not reweigh the evidence or reassess the factfinder's determination of witness credibility, and it must assume that the jury resolved all contradictions in testimony in favor of the government. See United States v. Roe, 606 F.3d 180, 186 (4th Cir. 2010).

With these standards in mind, we have reviewed the record and find that the evidence presented was sufficient to support Jeffrey-Moe's convictions. The trial testimony, viewed in the light most favorable to the Government, established that Jeffrey-Moe searched for, downloaded, viewed, and sorted numerous files containing child pornography. The Government presented sufficient evidence to establish Jeffrey-Moe's knowledge of the contents of each of the specific files supporting his convictions for receiving child pornography and that he knowingly possessed child pornography as charged in the three counts of possession. Accordingly, we conclude that the evidence was sufficient to support the convictions, and the district court did not err in denying Jeffrey-Moe's motion for judgment of acquittal.

Jeffrey-Moe next challenges the reasonableness of the district court's imposition of a lifetime term of supervised release.^[1] "A court's sentencing rationale . . . can support both imprisonment and supervised release." United States v. Aplicano-Oyuela, 792 F.3d 416, 425 (4th Cir. 2015). Here, when addressing the sentencing factors, the district court specifically referred to the large number of videos and images attributed to Jeffrey-Moe, the multiple devices ("all the gadgets within arms (sic) reach containing all the child pornography"), and the fact that he had been collecting child pornography for nearly ten years. The court emphasized the seriousness of Jeffrey-Moe's offenses and its determination that his downloading and viewing child pornography was a "compulsion" or an "addiction." The court further noted that Jeffrey-Moe lacked remorse, failed to acknowledge his crimes, and persisted in asserting his innocence. The court also expressed concern that Jeffrey-Moe would return to this conduct once on supervised release and recited some cases of defendants who reoffended after regaining access to the internet. We conclude that the district court's explanation for Jeffrey-Moe's sentence adequately explains the court's reasons for imposing of a lifetime term of supervised release. See United States v. Boyd, 5 F.4th 550, 559 (4th Cir. 2021) (providing that "a sentence as-a-whole explanation can suffice" to explain reasons for conditions of supervision (internal quotation marks omitted)).

Jeffrey-Moe also challenges the imposition of a number of conditions of his supervised release, contending that they are overbroad and that the district court failed to adequately explain the reasons for imposing the conditions. Specifically, he contests Standard Condition 9, which prohibits him from associating with felons or persons engaged in criminal activity, and Standard Condition 13, which requires that he notify third parties of the risks that may be occasioned by his criminal record. He also contends that Special Conditions 5, 6, 7, 8, and 11-restricting his use of computers, access to minors, access to or possession of adult pornography, use of sex-related adult telephone services and websites, and magazines using pictures of juveniles-are overbroad and not adequately explained.

"[A] sentencing court's duty to provide an explanation for the sentence imposed also requires that the court explain any special conditions of supervised release." United States v. McMiller, 954 F.3d 670, 676-77 (4th Cir. 2020). Special conditions of supervised release must be: (1) reasonably related to the statutory goals of deterrence, protection of the public, and rehabilitation; (2) no greater a deprivation of liberty than is reasonably necessary to achieve those statutory goals; and (3) consistent with any relevant policy statements issued by the Sentencing Commission." Id. (cleaned up); see 18 U.S.C. § 3583(d). Accordingly, a district court must specifically explain the reasons for imposing a discretionary condition of supervised release unless (1) the reasons are "self-evident," (2) the defendant raised no nonfrivolous objections to the condition, and (3) the court provided an adequate explanation for the sentence as a whole. Boyd, 5 F.4th at 559.

The first challenged condition is Standard Condition 9, which restricts Jeffrey-Moe from associating with felons or persons engaging in criminal activity. We conclude that that the reasons for this condition are evident from the record and, to the extent Jeffrey-Moe contends that the condition is overly broad, we recently addressed this argument and reaffirmed the "general rule that a district court may not revoke supervised release for inadvertent violations." United States v. Van Donk, 961 F.3d 314, 324 (4th Cir. 2020) (internal quotation marks omitted). As we stated in Van Donk, "[i]f vagueness issues do arise, [the defendant] may bring an as-applied challenge in revocation proceedings." Id. at 325-26.

The Government concedes that Standard Condition 13, as imposed by the district court, "may be an improper delegation of judicial power." See Boyd, 5 F.4th at 558 (acknowledging that, absent meaningful guidance to the...