United States v Smith

Smith appealed his child pornography convictions and sentence. The panel affirmed. It held there was no plain error double jeopardy violation in charging a separate felony for each time images were downloaded from Smith’s computer because no Supreme Court or 10th circuit decision has even considered the issue let alone decided it in way that favors Smith and the only out of circuit appellate decision rejected an argument similar to Smith’s. It affirmed the sentence holding the district court properly declined to consider Smith’s pro se objection to the presentence report as he was represented by counsel and in any event any error was harmless a she sentence was at the bottom of the guideline range.

United States v Harry

Harry appealed his rape conviction and sentence. The panel affirmed. It upheld the district courts determination that text messages from a witness to Harry were no exculpatory on their face as the responsive text from harry was ambiguous and there was no evidence that the investigator saw any text stating the victim flirted with Harry prior to the rape, the witness expressed no sympathy for Harry and there was evidence the text referred to Harry’s girlfriend not the victim. It affirmed the finding of no bad faith as the investigator took the phone to serval other agencies with greater technical expertise to try and get the missing texts and contacted the phone company as well. It held there was no error in excluding a text allegedly about flirting and limiting evidence of flirting to Harry’s testimony because the text was hearsay, not relevant to the defense presented by Harry at a pretrial hearing and Harry failed to reopen the issue after he testified victim consented and evidence by others about flirting would have violate rule of evidence 412 and no proffer was made of what evidence would have been offered. It affirmed the sentence holding the district court considered all of Harry’s arguments in its explanation of the sentence and the within guidelines sentence was presumptively reasonable.