United States v. Wehrle

985 F.3d 549

UNITED STATES of America, Plaintiff-Appellee,

v.Lance A. WEHRLE, Defendant-Appellant.

No. 19-2853

United States Court of Appeals, Seventh Circuit.

Argued September 25, 2020

Decided January 15, 2021

Laura Reppert, Attorney, Office of the United States Attorney, Criminal Division, Fairview Heights, IL, for Plaintiff-Appellee.

Daniel Allan Juengel, Attorney, Frank, Juengel & Radefeld P.C., Clayton, MO, for Defendant-Appellant.

Before Ripple, Brennan, and St. Eve, Circuit Judges.

Brennan, Circuit Judge.

After detecting an internet protocol address downloading child pornography, police executed a warrant to search Lance Wehrle's home. They seized hard drives and digital devices that contained over one million photos and videos of child pornography. The search also turned up lascivious photos taken in his home depicting the seven-year-old nephew of Wehrle's friend.

Wehrle was indicted for producing and possessing child pornography. Following a bench trial he was convicted and sentenced to 40 years’ imprisonment. On appeal Wehrle challenges various district court rulings underlying his conviction and sentence. We affirm in all respects.

I

In March 2017, Jerseyville, Illinois, Police Officer Amanda Wimmersberg detected an IP address requesting child pornography using a peer-to-peer file-sharing network called Freenet. As a member of the Federal Bureau of Investigation's Violent Crimes Against Children Task Force and Internet Crimes Against Children Task Force, she was certified to investigate on Freenet and had previously conducted more than 40 similar investigations. Wimmersberg determined that the IP address belonged to Wehrle, and she and other agents executed a search warrant on his residence.

During the search the agents found a photo album in Wehrle's bedroom. In the album they discovered a photograph depicting A.E. lying on a blanket with his penis exposed. The background of the photograph matched the items they found in Wehrle's living room—a red blanket, a circular TV stand, and a fish tank—indicating that the picture was taken inside his home. The agents seized external hard drives, flash cards, and other digital devices. A preliminary forensic review of the hard drives revealed additional pornographic images of A.E. These images depicted Wehrle performing oral sex on A.E., Wehrle holding a cigarette lighter next to A.E.’s genitals, and A.E. performing lewd acts on a sex toy. Wimmersberg reviewed the devices and found over one million images and videos of child pornography, including more than 50 additional images of A.E. In an interview with police the same day as the search, Wehrle acknowledged he had downloaded child pornography using Freenet.

A federal grand jury indicted Wehrle on two counts of producing child pornography and one count of possessing child pornography.¹ The case went to a bench trial at which Wimmersberg testified about her investigation and the forensic examination process. She described her professional background and experience, as well as the methods she employed to extract the data from Wehrle's digital devices.² She also detailed the hardware and software used to maintain the integrity of the original data.

The district court viewed approximately 70 images and videos, 28 of which featured A.E. Wehrle attempted to disqualify Wimmersberg as an expert witness, but the district court "found her to be credible and that her credentials and qualifications for the investigation in this case were not in any way suggestive that the evidence was in any way not properly obtained or there was any problem with the investigation." The district court found Wehrle guilty on each of the indictment's three counts and sentenced him to a below-guidelines sentence of 40 years’ imprisonment: 30 years on each of the production counts to be served concurrently, and 10 years on the possession count to be served consecutively.

II

Wehrle raises four challenges on appeal: (1) whether the district court abused its discretion by failing to qualify Wimmersberg as an expert witness; (2) whether the admission of trade inscriptions found on the seized devices violated the rule against hearsay and the Sixth Amendment Confrontation Clause; (3) whether 18 U.S.C. § 2251(a), which criminalizes the production of child pornography, violates the Commerce Clause; and (4) whether the district court's sentencing decision was substantively unreasonable.³

A

First is Wehrle's claim that Wimmersberg should have been qualified as an expert witness. We review a district court's evidentiary rulings for abuse of discretion. See Turubchuk v. S. Ill. Asphalt Co., Inc. , 958 F.3d 541, 548 (7th Cir. 2020). Even if a district court abused its discretion, "[w]e will not reverse if the error is harmless in light of the trial record as a whole." Viramontes v. City of Chicago , 840 F.3d 423, 430 (7th Cir. 2016). When a party fails to preserve an objection at trial, we review for plain error. See FED. R. CRIM. P. 52(b) ; Puckett v. United States , 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009).

Wehrle argues the district court abused its discretion by failing to qualify Wimmersberg as an expert witness when her detailed discussion of the technical aspects of her investigation deviated into opinion testimony under Federal Rule of Evidence 702. When Wimmersberg began discussing the image-extracting process, Wehrle's counsel objected based on "foundation" and " Rule 702." He repeated the same objection throughout her testimony by referencing his "earlier objection based upon the processing." We conclude that these repeated invocations sufficiently preserved this objection to the technical aspects of Wimmersberg's testimony, so we review the district court's ruling on this evidence for abuse of discretion.

Expert testimony generally involves technical concepts beyond ordinary understanding. See FED. R. EVID. 702. "[A]n officer testifies as an expert when he brings ‘the wealth of his experience as [an] officer to bear on those observations and ma[kes] connections for the jury based on that specialized knowledge.’ " United States v. Gaytan , 649 F.3d 573, 582 (7th Cir. 2011) (some alterations in original) (quoting United States v. Oriedo , 498 F.3d 593, 603 (7th Cir. 2007) ). A forensic-examination process falls within Rule 702 ’s ambit if it involves "specialized knowledge [that] will assist the trier of fact to understand the evidence or to determine a fact in issue." FED. R. EVID. 702 ; see also Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 589–91, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

The forensic-examination process here implicated Rule 702 because Wimmersberg testified to technical concepts beyond ordinary knowledge. During her direct examination, she was asked, "How do you go about conducting a forensic examination of a device?" She first explained the use of a "write blocker," a tool that permits access to data while protecting the integrity of the seized device. She then described the use of data-extraction software. She also described the reliability and safeguards in the software that prevent any alteration of the original data, and she discussed other technical concepts such as hashes (which convert one value to another and can establish identity) and metadata (data which gives information about other data).

We recognize that not all testimony about the use of "technical" equipment will implicate Rule 702. Some uses are commonplace today. But even if a lay person may understand an officer's testimony about one of these concepts in isolation, an explanation of how they work together to preserve information and the integrity of the data crosses into Rule 702 territory. So we conclude Wimmersberg's testimony here concerning technical aspects of a forensic examination constitutes "specialized knowledge" under Rule 702.⁴ Admitting her specialized knowledge without formally qualifying her as an expert witness was an abuse of discretion.

Although the district court abused its discretion, any error associated with the admission of this testimony was harmless. See FED. R. CRIM. P. 52(a) ("Any error ... that does not affect substantial rights must be disregarded."). An error is harmless if it "do[es] not have an effect on the outcome because the case against the defendant is so overwhelming absent the erroneously admitted evidence." United States v. Quiroz , 874 F.3d 562, 571 (7th Cir. 2017) ; see also United States v. Brown , 871 F.3d 532, 536 (7th Cir. 2017) ("[A] new trial is appropriate only if the average juror would have found the government's case significantly less persuasive had the wrongly excluded evidence been admitted."). The evidence of Wehrle's guilt at the bench trial was overwhelming. He confessed to police about abusing A.E. and downloading child pornography. At least one of the photographs depicted Wehrle performing oral sex on A.E., and the pornographic nature of the photos Wehrle produced and possessed was not disputed at trial. Even if the district court's admission of Wimmersberg's testimony about the forensic examination technology is deemed improper, the government could have presented another witness to offer the same explanations about the data-extraction software. Because the outcome would have been the same, the error was harmless.

While we conclude that Wimmersberg's detailed discussion of the technical aspects of her investigation crossed over into expert testimony, her characterization of the images as "child pornography" did not. We review this question for plain error because Wehrle's counsel failed to specifically raise this objection at trial.⁵ Under plain-error review, a defendant must show (1) an "error or defect," (2) that is "clear or obvious," (3) affecting his "substantial rights," (4) that "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Puckett , 556 U.S. at 135, 129 S.Ct. 1423 (internal quotation marks omitted).

Wimmersberg answered "yes"...