USA v. Bryan David Somers

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12110
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRYAN DAVID SOMERS,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 4:20-cr-00005-JPB-WEJ-1
____________________
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2 Opinion of the Court 22-12110
Before NEWSOM , GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
Bryan Somers appeals his convictions for receiving and
distributing child pornography on the grounds that the district
court improperly admitted evidence of prior acts under Federal
Rule of Evidence 404(b). Because the district court did not abuse
its discretion by admitting the evidence, we affirm.
I.
BitTorrent is a peer-to-peer network that permits users to
share files between other computers connected to the BitTorrent
network. In June 2019, local law enforcement investigating users
sharing child pornography via BitTorrent downloaded several
videos and images of known child pornography from an IP address
associated with the wireless router located in Somers’s townhouse.
Somers lived at the townhouse with his wife and his two
stepchildren, an eight-year-old girl and a nine-year-old boy.
Federal and state law enforcement agents searched the townhouse,
finding on Somers’s computer both intact images of child
pornography as well as evidence of recently deleted files with
filenames indicating they had contained child pornography.
Metadata from these files indicated that they had been downloaded
to Somers’s computer via BitTorrent.
Somers pleaded not guilty to charges of possessing,
receiving, and distributing child pornography. Before trial, the
government moved to introduce evidence of prior acts under
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22-12110 Opinion of the Court 3
Federal Rule of Evidence 404(b). Both of Somers’s stepchildren
had told investigators that Somers would sometimes look at their
genitals before they entered the shower. Somers’s eight-year-old
stepdaughter also said that Somers would sometimes have her sit
on his lap or on his bed while he inspected her genitals. The
government sought to admit this evidence to prove Somers’s
knowledge and intent with respect to the child pornography
offenses—specifically, it argued that the evidence would “show
that he had a sexual interest in minors” and that he knew the
images and videos he downloaded depicted underage children.
Somers objected, arguing that the prior acts were inadmissible
character evidence bearing only on his propensity to act a certain
way. He also argued that, even if probative on some element of
the offenses, the risk of unfair prejudice would substantially
outweigh the evidence’s probative value.
The district court permitted the government to introduce
the prior-acts evidence at trial, but with several limitations. First,
the court instructed the jury that it could only be used for the
purpose of determining whether Somers had the knowledge or
intent necessary to commit the charged crimes, not whether he
actually committed those crimes. Second, the court limited the
government to calling only one of Somers’s two stepchildren to
testify. Third, the court permitted the government to elicit
testimony from the child only about Somers’s visual inspections,
not about any alleged touching. And fourth, the court prohibited
the government from suggesting that the evidence showed Somers
had a general sexual interest in children, reasoning that this
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4 Opinion of the Court 22-12110
argument would constitute impermissible character evidence. The
government opted to call Somers’s stepdaughter as a witness.
Somers’s principal defense at trial was that because IP
addresses identify only a router, not a specific device connected to
that router, someone else could have accessed Somers’s unsecured
internet connection and have been responsible for the child
pornography investigators identified from BitTorrent. As for the
images and deleted files found on Somers’s computer, he argued
that it was possible that malware or a computer virus could have
downloaded those files without his knowledge.
The jury convicted Somers on the charges of distributing
and receiving child pornography. This is his appeal.
II.
We review the admission of prior-acts evidence under
Federal Rule of Evidence 404(b) for abuse of discretion. United
States v. Calderon, 127 F.3d 1314, 1331 (11th Cir. 1997).
III.
We apply a three-part test for admissibility of evidence of a
defendant’s prior acts under Federal Rule of Evidence 404(b).
“First, the evidence must be relevant to an issue other than the
defendant’s character. Second, as part of the relevance analysis, the
evidence must be sufficient to support a finding that the defendant
actually committed the extrinsic act. Third, the probative value of
the evidence must not be substantially outweighed by unfair
prejudice.” Id. at 1330 (quotation omitted). Somers concedes that
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22-12110 Opinion of the Court 5
the second element of the test is met because there was sufficient
evidence for a jury to conclude that the acts alleged by his
stepdaughter happened.
Somers first argues that the evidence of his visual
examinations of his stepdaughter’s genitals was irrelevant on any
issues other than character. Because his only defense at trial was
that someone or something else could have been the source of the
child pornography files shared by his router and saved on his
computer, Somers’s argument goes, his visual inspections of his
stepdaughter’s genitals had no relevance to any issue in the case
and their introduction could only have been an impermissible
attempt to show propensity.
Our Circuit’s precedents foreclose this argument. By
pleading not guilty, a criminal defendant makes his intent relevant,
which the government may prove via Rule 404(b) evidence. United
States v. Zapata, 139 F.3d 1355, 1358 (11th Cir. 1998). Somers’s
eight-year-old stepdaughter’s testimony about his visual
inspections of her genitals falls into this category because it is
evidence that he was familiar with the appearance of children’s
genitalia and that he intended to look at pornographic images of
children.
The fact that Somers’s main defense at trial was that
someone or something else could have been the source of the child
pornography images does not change anything. In United States v.
Kapordelis, a criminal defendant charged with producing, receiving,
and possessing child pornography argued, like Somers, that
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6 Opinion of the Court 22-12110
someone else could have been responsible for the images being on
his computer. 569 F.3d 1291, 1313 (11th Cir. 2009). We held that
evidence that the defendant had previously engaged in trysts with
underage boys was relevant, because it tended to show the
defendant’s knowledge and rebut his identity defense. Id. at 1313–
14. So too here.
Next, Somers argues that the unfair prejudice posed by the
prior-acts evidence substantially outweighed any probative value.
This argument also fails. We have repeatedly found that an
appropriate limiting instruction reduces the risk of unfair prejudice
from the introduction of Rule 404(b) evidence. See, e.g., United
States v. Diaz-Lizaraza, 981 F.2d 1216, 1225 (11th Cir. 1993); United
States v. Ramirez, 426 F.3d 1344, 1354 (11th Cir. 2005); United States
v. Edouard, 485 F.3d 1324, 1346 (11th Cir. 2007). Here, not only did
the district court issue a limiting instruction to the jury, it limited
the government to only one prior-acts witness and barred the
government from eliciting testimony on subjects that would tend
towards impermissible propensity evidence. The district court did
not abuse its discretion by concluding these steps ensured that the
probative value of the stepdaughter’s testimony was not
substantially outweighed by undue prejudice to Somers.
* * *
The district court did not abuse its discretion by admitting
the Rule 404(b) evidence. Accordingly, we AFFIRM Somers’s
conviction.
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