USA v. Terry George Zimmerman

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11520
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERRY GEORGE ZIMMERMAN,
Defendant- Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 5:19-cr-00088-JA-PRL-1
____________________
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2 Opinion of the Court 21-11520
Before R OSENBAUM , GRANT, and B LACK , Circuit Judges.
PER CURIAM:
Terry Zimmerman, proceeding with counsel, appeals his
conviction and sentence for possession of child pornography. He
was convicted following a jury trial at which his 1995 federal con-
viction for possessing child pornography was admitted. Zimmer-
man asserts the district court abused its discretion by admitting his
prior conviction under Federal Rule of Evidence 414 without con-
ducting a multi-factor analysis as part of its Federal Rule of Evi-
dence 403 balancing test, and by inadequately explaining its ruling.
He further contends the court unconstitutionally burdened his
First Amendment right to access the internet during his supervised
release by prohibiting him from accessing the internet without per-
mission.
I. DISCUSSION
A. Admission of prior conviction
A court can exclude relevant evidence if its probative value
is substantially outweighed by its risk of unfair prejudice. Fed. R.
Evid. 403. A court’s discretion to exclude evidence under Rule 403
is narrowly circumscribed, and exclusion is an extraordinary rem-
edy that should be used sparingly.
United States v. Smith, 967 F.3d
1196, 1205 (11th Cir. 2020). Rule 414 states that, when a defendant
is accused of an offense of child molestation, evidence of his prior
offense of child molestation is admissible and may be considered
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21-11520 Opinion of the Court 3
for its bearing on any relevant matter. Fed. R. Evid. 414(a). Pos-
sessing child pornography in violation of § 2252 is a child molesta-
tion offense.
See id. (d)(2)(B); 18 U.S.C. § 2252. Evidence admitted
under Rule 414 must still satisfy Rule 403, however.
United States
v. Woods, 684 F.3d 1045, 1064 (11th Cir. 2012). We have affirmed
the admission of a defendant’s prior acts where they were proba-
tive of the defendant’s interest in child pornography and made it
more likely that the defendant, rather than some other person, was
responsible for child pornography found on computers.
Id. at 1065
(affirming admission of written statement describing molestation).
Zimmerman’s prior conviction was admissible as Rule 414
evidence, for its bearing on any relevant matter. The district court
sufficiently explained its evidentiary ruling, stating Zimmerman’s
statements during the search weighed in favor of admitting the
prior conviction, and that the conviction itself would be admitted,
but the details underlying the offense would be excluded. Moreo-
ver, the court did not abuse its discretion by failing to apply a multi-
factor balancing test that Zimmerman recognizes is not the law in
this Circuit.1
See United States v. Merrill, 513 F.3d 1293, 1301 (11th
1 Other Circuits have required district courts to consider several non-exclusive
factors before deciding whether to exclude Rule 414 evidence pursuant to Rule
403.
E.g.,
United States v. LeMay, 260 F.3d 1018, 1028 (9th Cir. 2001) (requir-
ing courts to consider the similarity of the prior act and the act charged, the
closeness in time between the two acts, the frequency of the prior acts, any
intervening circumstances, and the necessity of the evidence). Although we
previously required courts to consider several factors before admitting prior
criminal acts, including the remoteness of the prior offense and the need for
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4 Opinion of the Court 21-11520
Cir. 2008) (reviewing a district court’s evidentiary rulings for an
abuse of discretion).
The prior conviction was probative because it could help the
jury determine Zimmerman’s intent and the nature of his interest
or lack thereof in child pornography. Furthermore, like in
Woods,
it was probative because it made it more likely that he knowingly
possessed the devices containing child pornography and less likely
he was unaware of the child pornography or that someone else had
put it there, as he suggested both during the search of his house
and at trial.
See Woods, 684 F.3d at 1065. The conviction was pro-
bative despite the 25-year-gap between it and the current offense
due to the nature of the two crimes and Zimmerman’s apparent
attempt to characterize his past offense as involving solely posses-
sion of depictions of nudity. The undue prejudice resulting from
the admission of the evidence was not so significant as to substan-
tially outweigh the probative value of the evidence considering
Zimmerman’s statement during the search of his home referencing
the conviction.
the evidence, we have since recognized those factors, but held that they have
largely been subsumed within a trial court’s inquiry under the Federal Rules
of Evidence.
United States v. McGarity, 669 F.3d 1218, 1243-44 (11th Cir.
2012),
abrogated on other grounds as recognized by United States v. Rothen-
berg, 923 F.3d 1309, 1336 (11th Cir. 2019).
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21-11520 Opinion of the Court 5
B. Internet access
The Supreme Court held that a North Carolina law violated
the First Amendment by making it a felony for a registered sex of-
fender to access a social networking website that the offender knew
permitted children to become members or create personal pages.
Packingham v. North Carolina, 137 S. Ct. 1730, 1733, 1737 (2017).
The Court stated it was unsettling to suggest that even persons
who completed their sentences could use solely a limited set of
websites.
Id. In
Bobal, we rejected an argument that a district
court committed plain error under
Packingham by imposing a re-
striction on computer usage as a special condition of supervised re-
lease, reasoning that
Packingham did not address the constitution-
ality of conditions on supervised release.
United States v. Bobal,
981 F.3d 971, 977-78 (11th Cir. 2020),
cert. denied, 141 S. Ct. 2742
(2021) (considering computer restriction on defendant whose of-
fense of conviction involved sending electronic communications to
a minor).
Zimmerman did not object to the imposition of an internet
ban as a condition of his supervised release, so our review is for
plain error.
See id. at 975 (reviewing an unpreserved constitutional
challenge to a condition of a defendant’s supervised release for
plain error). He has not shown plain error because, as he concedes,
he is bound by
Bobal, which rejected a similar argument.
See id. at
977-78. Thus, the district court did not plainly err by imposing the
condition.
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6 Opinion of the Court 21-11520
II. CONCLUSION
The district court did not abuse its discretion by admitting
Zimmerman’s prior conviction for possession of child pornogra-
phy without conducting a multi-factor balancing test or by insuffi-
ciently explaining its ruling. It also did not plainly err by banning
Zimmerman from using the internet as a condition of his super-
vised release.
Although we affirm Zimmerman’s conviction and sentence,
there is a clerical error in his judgment. We may
sua sponte raise
typographical errors and remand with instructions to correct them.
United States v. Massey, 443 F.3d 814, 822 (11th Cir. 2006). The
judgment described the statutory provisions Zimmerman violates
as 18 U.S.C. § 2252(a)(4)(B) and “§ 2252(b)(2)d.” There is no sub-
section d in § 2252(b)(2). Thus, we remand to the district court
with instructions to amend the judgment to correct the clerical er-
ror.
AFFIRMED IN PART; REMANDED IN PART.
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