United States of America v. Nedzad Juhic

United States Court of Appeals
For the Eighth Circuit
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No. 19-1151
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United States of America
Plaintiff Appellee
v.
Nedzad Juhic
Defendant Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Des Moines
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Submitted: January 17, 2020
Filed: March 31, 2020
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Before COLLOTON, SHEPHERD, and ERICKSON, Circuit Judges.
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ERICKSON, Circuit Judge.
Nedzad Juhic appeals his conviction for transportation and receipt of child
pornography in violation of 18 U.S.C. §§ 2252(a)(1)- (2), (b)(1). Juhic challenges the

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district court’s1 denial of his motion for the court to appoint its own expert to examine
Agent Simon’s laptop, his proposed jury instruction on innocent intent, and his
motion to continue jury deliberations. Juhic also appeals the admission of computer-
generated reports. We affirm.
I. Background
In June 2015, Homeland Security Special Agent Aaron Simon was
investigating peer-to-peer child pornography distribution in Iowa using an automated
Child Protection System (“CPS”). The program located an IP address potentially
sharing child pornography. Agent Simon used ShareazaLE, another law enforcement
program, to connect to the IP address and download 42 files containing child
pornography. Agent Simon downloaded 10 files from a second IP address. Further
investigation revealed that both IP addresses were registered to Juhic.
Officers executed a search warrant on September 30, 2015, at Juhic’s residence.
Juhic was not home, but he and his wife went to Agent Simon’s office a few days
later. Agent Simon and Juhic had a voluntary conversation. Agent Simon called a
Bosnian-speaking police officer to translate if needed. During their conversation,
Juhic stated that he was the only one who used his laptop, that he had “maybe a
thousand” videos of child pornography, that he shared videos with people he chatted
with online, and that he knew the children in the videos were under eighteen. Juhic
voluntarily provided his personal laptop to Agent Simon. Forensic analysis of the
laptop in late September 2015 revealed 1,548 videos and 38 images of child
pornography.
1The Honorable Stephanie M. Rose, United States District Judge for the
Southern District of Iowa.
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Before trial, Agent Simon mistakenly believed that he had lost access to the
downloads from the case due to a ransomware attack on one of his undercover
laptops. This belief was conveyed to Juhic’s counsel. Shortly thereafter Agent
Simon realized that he had searched for the materials on the wrong laptop and that the
ransomware issue had been resolved prior to the investigation of Juhic. Because of
the conflicting accounts, Juhic asked the district court to appoint its own expert to
examine Agent Simon’s undercover laptop. In support of his motion Juhic argued
that it was possible that the child pornography on his laptop had been placed there by
the ransomware on Agent Simon’s undercover laptop. The court stated, “I don’t think
it’s an appropriate thing for the Court to get involved in essentially investigating, on
behalf of one side or the other, this issue” and denied the motion. The court also
denied Juhic’s proposed jury instruction on innocent intent because it did not believe
that the instruction was a correct statement of law. The court noted that an instruction
on Juhic’s proposed theory would be more confusing than helpful to the jury.
At trial, the government introduced multiple computer-generated reports during
Agent Simon’s testimony. The reports were automatically generated by the CPS and
ShareazaLE programs based on interactions with Juhic’s IP addresses. The reports
included notations identifying whether files were “child-notable” or part of a “series”
of child pornography that had been submitted to the National Center for Missing and
Exploited Children (“NCMEC”). Juhic objected to the reports as inadmissible
hearsay. The court admitted the exhibits as business records under Federal Rule of
Evidence 803(6).
After instructions and the closing arguments, the court submitted the case to
the jury and dismissed the alternate jurors. During deliberations a juror informed the
court that she was suffering from a migraine. The court spoke with the juror and
determined that she was able to continue with deliberations. The court denied Juhic’s
motion to continue deliberations until the following morning. Approximately 45
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minutes later, the jury found Juhic guilty of receipt and transportation of child
pornography.
II. Discussion
A. Court Appointed Expert
Juhic argues that the district court erred in denying his request for a court
appointed expert to examine Agent Simon’s undercover laptop under Federal Rule
of Evidence 706.2 We review a district court’s decision not to appoint an expert
witness for abuse of discretion. See United States v. Provost, 875 F.2d 172, 175 (8th
Cir. 1989) (“A trial court has broad discretion to grant application for appointment
of an expert witness.”); see also Toney v. Hakala, 556 F. App’x. 570, 571 (8th Cir.
2014) (unpublished).
Rule 706 allows the district court to use its “discretion to procure the assistance
of an expert of its own choosing.” Sorensen ex rel. Dunbar v. Shaklee Corp., 31 F.3d
638, 651 (8th Cir. 1994); accord U.S. Marshals Serv. v. Means, 741 F.2d 1053, 1057–
58 (8th Cir. 1984) (en banc) (stating that a district court has discretionary power to
call its own expert witness). In ruling on the issue at a pretrial hearing, the court did
not find reason to believe that further investigation of Agent Simon’s laptop would
lead to exculpatory information.
2Juhic also argues that not allowing him to examine Agent Simon’s undercover
laptop is a violation of the Walsh Act, 18 U.S.C. § 3509(m). The Walsh Act is not
applicable here because it applies to the examination of the material that constitutes
child pornography, not the computer used during the investigation. Juhic has made
no argument that the videos and pictures at issue were not child pornography or that
he was not able to examine those materials.
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Juhic has presented no evidence in support of his theory that ransomware on
Agent Simon’s laptop planted child pornography on Juhic’s laptop. Juhic’s own
expert had an opportunity to look for artifacts of malware on Juhic’s laptop and
found no evidence of ransomware. At trial, it was established that the ransomware
infecting Agent Simon’s undercover laptop had been mitigated and ShareazaLE
reinstalled by April 20, 2015. The files found on Juhic’s laptop were downloaded
between July and September 2015, months after Agent Simon used his laptop to
monitor Juhic’s IP address in June 2015. Testimony at trial also established that
ShareazaLE could not upload programs to other computers and that the ransomware
on Agent Simon’s undercover laptop was not the type that attempted to infect other
machines. Juhic provided no justifiable reason for the court to appoint its own expert,
and the court did not abuse its discretion when it refused to do so.
B. Innocent Intent
Juhic contends that the court erred in refusing to allow him to present his
innocent intent theory to the jury. We review a district court’s decision to deny a
defendant’s proposed jury instruction for abuse of discretion. United States v. Parker,
871 F.3d 590, 604 (8th Cir. 2017). We will affirm jury instructions that, when “taken
as a whole, fairly and adequately submitted the issues to the jury.” Id. (quotation
marks omitted).
We have recognized defenses based on perceived government authority,
including public authority, entrapment by estoppel, and innocent intent. United
States v. Xiong, 914 F.3d 1154, 1159–60 (8th Cir. 2019). The innocent intent
defense is based on a contention that the government failed to prove the defendant
possessed the crime’s required criminal intent. Id. However, transportation and
receipt of child pornography do not require criminal intent, merely knowledge. See
18 U.S.C. §§ 2252(a)(1) (“knowingly transports”), (a)(2) (“knowingly receives”).
Juhic admitted to Agent Simon that he knew he possessed and shared child
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pornography. Why Juhic possessed the child pornography does not matter.
Additionally, because Juhic admitted that he never spoke to law enforcement before
collecting child pornography videos, he could not submit a public authority defense.
See Xiong, 914 F.3d at 1160. The district court did not abuse its discretion in
denying Juhic’s innocent intent theory.
C. Computer Generated Reports
Juhic argues that the district court erred by admitting computer-generated
reports because they contained inadmissible hearsay. The court admitted the exhibits
as business records. On appeal, the government abandons the business record
exception and argues that the reports were not hearsay at all.
Exhibits 1 and 3 were automatically generated CPS reports that include a
“child-notable” notation on 474 files offered by Juhic’s account. A “child-notable”
file is a category of file that law enforcement provides to CPS when they find known
child pornography. The notation is based on law enforcement placing the hash values
of previously identified child pornography into the CPS system. The process of
searching for “child-notable” files, generating log files, and generating reports is
automated. Trial testimony established that the report’s data comes from criminal
investigations, including prosecutions, and is considered to be “like a police report.”
Exhibits 2 and 4 were automated summary reports of what the ShareazaLE program
automatically downloaded from Juhic’s account, which files it tracked, and what has
been done with those files. The summary reports include notations showing whether
a file was part of a named child pornography series submitted to NCMEC.
We review a district court’s contested hearsay rulings for an abuse of discretion
and will not reverse if the error was harmless. United States v. Iu, 917 F.3d 1026,
1033 (8th Cir. 2019). “An evidentiary error is harmless if the record demonstrates
that the defendant’s substantial rights were unaffected and that the error did not
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influence or had only a slight influence on the verdict.” United States v. Lundstrom,
880 F.3d 423, 440 (8th Cir. 2018) (quotation marks omitted). Erroneously admitting
evidence that is cumulative of other admissible evidence is harmless. Id. at 440–41.
Machine-generated records usually do not qualify as “statements” for hearsay
purposes but can become hearsay when developed with human input. See Melendez-
Diaz v. Massachusetts, 557 U.S. 305, 310–11 (2009). In United States v. Morrissey,
we determined that a spreadsheet similar to the reports at issue here was hearsay. 895
F.3d 541, 547, 554 (8th Cir. 2018). The spreadsheet indicated which files the
testifying officer believed to be child pornography and which files NCMEC had
previously identified as child pornography. Id. We determined that the spreadsheet
was offered into evidence to prove that the images were child pornography, and we
assumed without deciding that the NCMEC confirmations were testimonial. Id.
Like in Morrissey, the computer-generated reports offered against Juhic
contained inadmissible hearsay. The “child-notable” and “series” notations are out-
of-court statements offered for the truth of the matter asserted: that the videos and
images were child pornography. Fed. R. Evid. 801(c); see Morrissey, 895 F.3d at
554. While the reports may have been computer-generated, human statements and
determinations were used to classify the files as child pornography. It was only after
a human determined that a file contained child pornography that the hash value or
series information was inserted into the computer program and automatically noted
in future reports. The human involvement in this otherwise automated process makes
the notations hearsay.3
3This differs from the Rule 1006 summary admitted in United States v.
Fechner, where the testifying officer created a summary describing the content of
videos downloaded during the investigation. – F.3d –, 2020 WL 1173550 (8th Cir.
2020). In Fechner, the summary described admissible videos and did not make any
assumptions or conclusions about what was contained in the video. Here, the “child-
notable” and “series” notations are conclusions about what the videos and images
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However, any error in admitting the notations on the computer-generated
reports was harmless. A plethora of other evidence existed to support the jury’s
verdict. Juhic told Agent Simon that he had “maybe 1000” videos, that he watched
them, and that he shared them with people in chat rooms. Juhic stated that he guessed
the children in the videos were between the ages of nine and fourteen. Forensic
analysis found over 1,500 videos of child pornography on Juhic’s laptop. The jury
saw segments of the videos and was able to make its own determination of whether
they were child pornography. Additionally, Agent Simon testified that he compared
and matched the videos found on Juhic’s laptop with previous ShareazaLE
downloads. Based on the overwhelming amount of evidence supporting Juhic’s
conviction, any error in admitting the computer-generated reports was harmless.
Substantial evidence existed to convict Juhic without the reports.
D. Jury Deliberations
Juhic also contends that the district court erred in denying his motion to
continue jury deliberations. After the court dismissed the alternate jurors, one of the
jurors informed the bailiff that she was suffering from a migraine. This information
was brought to the court’s attention and the judge spoke to the juror who informed
the court that she felt as though she could deliberate for the rest of the day. The juror
was provided with pain medicine, cold water, and sunglasses to help with her
symptoms, and asked whether she wanted to continue with deliberations. The juror
told the court she felt well enough to deliberate. The court noted that, in subsequent
conversations, the juror looked better, was lucid, and no longer appeared to be in
pain. The court denied Juhic’s motion to recess until morning.
We review jury issues and a district court’s decision to deny a request for
recess for abuse of discretion. United States v. Evans, 272 F.3d 1069, 1087 (8th Cir.
contain and would not qualify as a Rule 1006 summary.
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2001) (jury issues); United States v. McMasters, 90 F.3d 1394, 1402 (8th Cir. 1996)
(recess). Here, the juror told the district court that she was able to continue with
deliberations. The court observed that she appeared to be feeling better, and nothing
in the record suggests that allowing the juror to monitor her own health was an error.
Without more than the abstract idea that the juror’s migraine caused the other jurors
to “hurry up” their deliberations, Juhic has not established that the district court
abused its discretion.
III. Conclusion
For the foregoing reasons, we affirm.
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