21-454-cr United States v. Dzionara-Norsen

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 18th day of January, two thousand twenty-four. Present: AMALYA L. KEARSE, GERARD E. LYNCH, WILLIAM J. NARDINI, Circuit Judges. _____________________________________ UNITED STATES OF AMERICA, Appellee, v. 21-454-cr RICHARD DZIONARA-NORSEN, Defendant-Appellant. _____________________________________

For Appellee: KYLE P. ROSSI (Tiffany H. Lee, on the brief), Assistant United States Attorneys, for Trini E. Ross, United States Attorney for the Western District of New York, Buffalo, NY

For Defendant-Appellant: JILLIAN S. HARRINGTON, Monroe Township, NJ

1 Appeal from a judgment of the United States District Court for the Western District of New

York (Frank P. Geraci, Jr., District Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Defendant-Appellant Richard Dzionara-Norsen appeals from a February 23, 2021,

judgment of the United States District Court for the Western District of New York (Frank P.

Geraci, Jr., District Judge), following a jury trial in which he was convicted of (i) distribution of

child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and 2252A(b)(1); (ii) receipt and

attempted receipt of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and

2252A(b)(1); and (iii) possession and attempted possession of child pornography, in violation of

18 U.S.C. §§ 2252A(a)(5)(B) and 2252A(b)(2). The district court sentenced Dzionara-Norsen to

seventy-two months of imprisonment on each count, to run concurrently, and ten years of

supervised release on each count, to run concurrently. Dzionara-Norsen now appeals, raising

several challenges to his conviction. We assume the parties’ familiarity with the case.

I. Motion to Suppress

Dzionara-Norsen argues that the district court erred by denying his motion to suppress

(i) his statements to Federal Bureau of Investigation Special Agent Barry Couch and Task Force

Officer Carlton Turner during a June 13, 2018, interview; (ii) the contents of his laptop, which

Dzionara-Norsen provided during that interview; and (iii) his statements to Special Agent James

Markovich during a June 14, 2018, interview. “On appeal from a district court’s ruling on a

suppression motion, we review a district court’s findings of fact for clear error, and its resolution

2 of questions of law and mixed questions of law and fact de novo.” United States v. Jones,

, 109 (2d Cir. 2022). 1

A. June 13 Statements

Dzionara-Norsen first argues that his June 13 statements should have been suppressed

because he made them during a custodial interview without the warnings required by Miranda v.

Arizona,

(1966). We disagree. To determine “whether a suspect was in custody for

the purposes of Miranda[,] . . . . [w]e use a two-step, objective test, that asks whether: (1) a

reasonable person in the defendant’s position would have understood that he or she was free to

leave; and (2) there was a restraint of freedom of movement akin to that associated with a formal

arrest.” United States v. Santillan,

(2d Cir. 2018).

The district court found that the June 13 interview, which was recorded, lasted for about

eighteen minutes and took place at Dzionara-Norsen’s apartment just outside his apartment door;

the agents appeared in plain clothes, did not display handcuffs, badges, or weapons, spoke in a

conversational tone, and did not make any threats or promises; and Dzionara-Norsen was not

physically restrained, at no point asked for an attorney or to stop the interview, and voluntarily

returned to resume the interview twice after returning inside to his apartment. Under those

circumstances, a reasonable person in Dzionara-Norsen’s position would have understood that he

was free to leave—indeed, he left the interview to retrieve items from his apartment twice with no

repercussions. See United States v. Familetti,

(2d Cir. 2017) (concluding that the

defendant was not in custody when he was interviewed at his home, was advised that he was not

1 Unless otherwise indicated, in quoting cases, all internal quotation marks, alteration marks, emphases, footnotes, and citations are omitted.

3 under arrest and was free to leave, and did not ask or try to leave the interview); United States v.

Faux,

, 135–36 (2d Cir. 2016) (“[C]ourts rarely conclude, absent a formal arrest, that

a suspect questioned in her own home is ‘in custody.’” (collecting cases)).

Dzionara-Norsen nevertheless argues that because “he suffers [from] serious mental

disabilities,” “he did not know that he was free to leave or refuse to speak with the agents.”

Appellant’s Br. at 44. We are not persuaded. “[T]he objective circumstances of the interrogation,”

J.D.B. v. North Carolina,

(2011), demonstrate that a reasonable person in

Dzionara-Norsen’s situation would have understood (as, indeed, Dzionara-Norsen himself appears

to have understood) that he was free to leave the interview at any time. Accordingly, the June 13

interview was noncustodial and therefore Miranda warnings were not required.

Dzionara-Norsen also argues that his June 13 statements should be suppressed as

involuntary. Again, we disagree. Statements are voluntary when they are “the product of an

essentially free and unconstrained choice by their maker” and involuntary if they are “coerced by

police activity.” United States v. Haak,

(2d Cir. 2018). To conclude that a

statement was involuntary, courts must determine whether, under the totality of the circumstances,

“the defendant’s will was overborne by the police conduct” by examining “(1) the characteristics

of the accused, (2) the conditions of interrogation, and (3) the conduct of law enforcement

officials.”

During the June 13 interview, Couch made some misleading statements downplaying the

significance and purpose of the interview: he said that he was only interviewing Dzionara-Norsen

because he “want[ed] to make sure” that Dzionara-Norsen was not someone that the FBI “need[ed]

to be concerned about” or “target” and to ensure that he was willing “to get some counseling” for

4 his child pornography consumption. App’x at 40. Couch admitted during the suppression hearing,

however, that Dzionara-Norsen was a potential target at the time of the interview. Moreover,

Dzionara-Norsen averred that he suffers from autism, anxiety, and depression and took

medications for those issues that affected his ability to make decisions. But, when considering the

totality of the circumstances, we cannot say that the district court erred in concluding that

Dzionara-Norsen’s will was not overborne by Couch’s misleading statements. Couch made other

statements to Dzionara-Norsen during the interview suggesting that his inquiry into Dzionara-

Norsen’s child pornography activity could result in criminal prosecution. App’x at 42 (Couch

asking Dzionara-Norsen, “I mean you know that [child pornography] is illegal right?”); id. at 48

(Couch stating that criminal charges could be brought against Dzionara-Norsen depending on the

discretion of prosecutors); see United States v. Mitchell,

(2d Cir. 1992) (finding

that the defendant’s statements were voluntary where the agents “deemphasized, but did not

misrepresent, the criminal nature of the inquiry”). Additionally, we discern no clear error in the

district court’s factual finding that during the interview, Dzionara-Norsen was coherent and

appeared to understand the agents’ questions and statements. And, as discussed above, the

interview was relatively short and noncustodial, the agents used a conversational tone and did not

make any threats or promises, and the agents did not display handcuffs, badges, or weapons. See

Haak,

(concluding that the defendant’s statements were voluntary where he was

not in custody, the interview lasted a little over thirty minutes, the officers were dressed in plain

clothes and did not display any weapons, he was unrestrained, and the interview was

conservational).

5 B. Contents of Laptop

Dzionara-Norsen further argues that the contents of his laptop should have been suppressed

because his consent to search the laptop was involuntary. We are unpersuaded. “It is well settled

that one of the specifically established exceptions to the Fourth Amendment requirements that

private property not be searched without a search warrant issued upon probable cause is a search

that is conducted pursuant to consent.” United States v. O’Brien,

(2d Cir. 2019).

Consent must be given “freely and voluntarily.”

. To determine whether consent is

voluntary, courts assess “whether the officer had a reasonable basis for believing that there had

been consent to the search,”

, under the totality of the circumstances, United States v.

Snype,

(2d Cir. 2006).

During the interview, Couch asked Dzionara-Norsen if he was willing to show the agents

his laptop, to which Dzionara-Norsen responded, “Okay . . .” App’x at 45. Then, when asked if

the agents could search the laptop for evidence, Dzionara-Norsen said, “I give you consent,” and

signed a written form affirming his consent. Id. at 46. These circumstances certainly demonstrate

voluntary consent. Dzionara-Norsen’s argument that his consent was involuntary because of the

agents’ misleading statements regarding the purpose of the interview and his mental health status

fails for the same reasons described above—that is, the ample evidence of voluntariness.

C. June 14 Statements

Finally, Dzionara-Norsen argues that that his June 14 statements should be suppressed

because they were tainted by the allegedly coercive police conduct during the June 13 interview.

Because we have found that Miranda warnings were not required and that his statements and

6 consent to search his laptop were voluntary during the June 13 interview, the June 14 interview

was not tainted.

II. Expert Witnesses

Dzionara-Norsen argues that the district court abused its discretion by denying his requests

to present the following expert witnesses: (1) R. Douglas Alling, a medical professional who

treated Dzionara-Norsen for ten years, would have testified that Dzionara-Norsen is autistic and

took “prescribed medications that could have bearing on guilt,” App’x at 116; (2) Frank J.

Salamone, Psy. D., would have testified that he diagnosed Dzionara-Norsen with autism and was

“particularly versed in when autism, child pornography, and the courts collide,” id.; and (3) Dennis

Debbaudt would have testified that people with autism may be prone “to mak[ing] misleading

statements or false confession[s],” id. at 155. Dzionara-Norsen contends that the district court

should have admitted this expert testimony because it was relevant to his defense that his

statements during the interviews were involuntary.

We review the district court’s evidentiary rulings, including decisions to preclude expert

testimony, for abuse of discretion. See Salem v. United States Lines Co.,

(1962).

“Generally, an expert may be permitted to testify if he is qualified, reliable, and helpful.” United

States v. Gatto,

, 117 (2d Cir. 2021) (citing Fed. R. Evid. 702). And, of course, the

expert testimony must be relevant to be admissible.

(citing Fed. R. Evid. 401, 402). A

defendant seeking to introduce expert testimony must provide a disclosure for each expert witness,

which must contain, in part, “a complete statement of all opinions that the defendant will elicit

from the witness in the defendant’s case-in-chief” and “the bases and reasons for them.” Fed. R.

Crim. P. 16(b)(1)(C)(iii). Where a defendant fails to comply with such disclosure requirements, a

7 court may prohibit the party from introducing the evidence at trial. Fed. R. Crim. P. 16(d)(2)(C).

“On appeal, we must look at the evidence in a light most favorable to its proponent, maximizing

its probative value and minimizing its prejudicial effect.” Gatto, 986 F.3d at 117.

The district court did not abuse its discretion by precluding this expert testimony. With

respect to Dr. Alling, Dzionara-Norsen failed to comply with the disclosure requirements of Rule

16(b)(1)(C): he submitted Dr. Alling’s curriculum vitae and a brief summary of the proposed

testimony, but failed to provide a full statement of Dr. Alling’s opinions and reasons for them. As

for Salamone, his proposed testimony—that “[i]ndividuals with Asperger’s syndrome . . . [are]

especially vulnerable to committing this sort of offense,” App’x at 128—is irrelevant because it

has no tendency to make the existence of any element of the relevant offenses less likely. Finally,

Debbaudt did not appear to be qualified as an expert on autism, having limited educational or

practical experience supporting his purported expertise.

III. Sufficiency of the Evidence

Dzionara-Norsen argues that the government’s evidence was insufficient to support his

convictions. We review the sufficiency of the evidence de novo, United States v. Laurent,

, 75 (2d Cir. 2022), and “are required to draw all permissible inferences in favor of the

government and resolve all issues of credibility in favor of the jury’s verdict,” United States v.

Willis,

, 181 (2d Cir. 2021). We must uphold the conviction if “any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.

Virginia,

(1979).

Dzionara-Norsen first contends that the evidence failed to establish that he knowingly

permitted others to download child pornography from his computer, as required for the distribution

8 of child pornography charge. But there was evidence that he used a peer-to-peer software, eMule,

to distribute child pornography to others: in March 2018, an agent downloaded a pornographic

video clip — which the agent identified as part of the “Gracel” series based on his experience with

other investigations—from an IP address tracked to Dzionara-Norsen’s mother’s residence. In his

interviews, Dzionara-Norsen confirmed that he had used eMule and understood how it worked,

lived at his mother’s residence in March 2018, used the term “Gracel” to search for child

pornography, and knew others could download child pornography through peer-to-peer software

from his computer. See United States v. Clarke,

, 91 (2d Cir. 2020) (finding sufficient

evidence of knowing distribution based on defendant’s admission that “by using the network to

download child pornography from the computers of other BitTorrent users, he [knew he] was

essentially sharing files of child pornography”).

Dzionara-Norsen further argues that the government did not prove the Gracel series video

depicted a minor, rather than a developmentally delayed adult. We reject this contention. The

government produced an expert witness who testified that the person in the Gracel series was a

prepubescent female. Moreover, the jury was given the opportunity to view the video. United

States v. Spoor,

(2d Cir. 2018) (“Viewing the videos, the jury was entitled to

find that the boys [depicted] were approximately nine and ten years old.”).

Dzionara-Norsen further argues that the government did not prove that he knowingly

received or attempted to receive child pornography and possessed or attempted to possess child

pornography because no child pornography files were recovered from his laptop. But there was

ample evidence that he had done so. Dzionara-Norsen stated in an interview that he viewed child

pornography out of “curiosity,” App’x at 42, and that he would “download [child pornography] .

9 . . and just look at it and delete it,” id. at 41. He also stated that his laptop did not contain any child

pornography because he “might have deleted it.” Id. at 45. His stated habits were corroborated

by the forensic examination of his laptop revealing that he had opened, accessed, and viewed files

with names suggesting that the contents thereof were pornographic in nature and involved children.

He estimated viewing about 200 videos or images of child pornography in his lifetime.

IV. Amendment of the Indictment

Dzionara-Norsen argues that the district court constructively amended the indictment, in

violation of the Fifth Amendment, by instructing the trial jury that it could convict him on Counts

Two and Three if he received/possessed or attempted to receive/possess child pornography, even

though each count was framed in the indictment conjunctively, charging him with

receipt/possession and attempted receipt/possession. He contends that the use of “or” instead of

“and” constituted a constructive amendment of the indictment.

Because Dzionara-Norsen did not object on these grounds before the district court, we

review for plain error. United States v. Calderon,

, 91 (2d Cir. 2019). “A constructive

amendment occurs when the charge upon which the defendant is tried differs significantly from

the charge upon which the grand jury voted. . . . either where (1) an additional element, sufficient

for conviction, is added, or (2) an element essential to the crime charged is altered.” United States

v. Dove,

(2d Cir. 2018).

The district court’s instructions on both counts were entirely correct. The indictment here

did not allege that Dzionara-Norsen necessarily committed both the substantive offense and the

attempted offense; rather, by using the conjunctive in each count, it merely set forth the alternate

means of committing the same crime under the statute. See United States v. McDonough,

381, 390 (2d Cir. 1995) (“Where there are several ways to violate a criminal statute, . . . federal

pleading requires that an indictment charge in the conjunctive to inform the accused fully of the

charges.”); United States v. Mejia,

(2d Cir. 2008). The instruction in the

disjunctive did not constructively amend the indictment.

V. Ineffective Assistance of Counsel

Dzionara-Norsen contends that his trial counsel rendered constitutionally ineffective

assistance by failing to introduce expert witnesses on his autism diagnosis at the suppression

hearing and trial. But we decline to address this claim because it “cannot be reliably decided on

the present record,” United States v. DeLaura,

(2d Cir. 2017), and, instead,

follow our typical practice of leaving such claims to be raised in a motion under

,

United States v. Morris,

(2d Cir. 2003).

* * *

In addition to the arguments discussed above, which were raised in Dzionara-Norsen’s

counseled brief, we have also carefully considered all the arguments raised in his supplemental

pro se brief and find them unpersuasive. For the reasons stated above, we AFFIRM the judgment

of the district court.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

11