United States of America v. JOHNNY RAY WOLFENBARGER, AKA John Wolfenbarger

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHNNY RAY WOLFENBARGER, AKA
John Wolfenbarger,
Defendant-Appellant.
No. 22-10188
D.C. No.
5:16-cr-00519-EJD-1
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Submitted January 3, 2024**
Before: BENNETT, BADE, and COLLINS, Circuit Judges.
Defendant Johnny Ray Wolfenbarger appeals from his convictions for
attempted production of child pornography, attempted coercion and enticement of
minors, and receipt of child pornography. He makes two arguments: the district
court (1) violated his Sixth Amendment right to a public trial when, based on
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
JAN 3 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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COVID-19 concerns, it barred in-person public access to his trial and limited the
public to only audio access, and (2) erred in denying his motion to suppress
evidence found in his Yahoo email account because Yahoo acted as a government
agent when it conducted the search. We have jurisdiction under 28 U.S.C. § 1291
and affirm.
1. The government argues that Wolfenbarger waived appellate review of
his Sixth Amendment claim because he never objected to the district court’s
proposal to bar in-person public access and allow only audio access. We need not
address waiver because we agree with the government’s alternative argument that
the claim, if not waived, is subject to plain-error review (as Wolfenbarger
concedes), and is foreclosed by United States v. Hougen, 76 F.4th 805 (9th Cir.
2023).
Hougen was decided after Wolfenbarger filed his opening brief, and is
materially indistinguishable.1 Hougen’s analysis of the fourth plain-error factor—
whether the error “will seriously impugn the fairness, integrity, or public reputation
of the court,” id. at 811—is applicable here. Like the defendant in Hougen,
Wolfenbarger has shown, at best, only “minimal . . . harm to the fairness of [his]
trial” because he “offers no evidence that anyone was denied access to the trial,
1 The government extensively relied on Hougen in its answering brief. In
his reply brief, Wolfenbarger provides no response to the government’s extensive
arguments based on Hougen, and does not even cite the case.

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that anything material (let alone any misconduct) occurred at trial that did not
come through on the [audio] or transcripts, nor that the proceedings, or our review
thereof, were affected at all by the lack of visual access.” Id. at 812. Such
minimal harm “is not likely as grave as the damage to fairness, integrity, and
reputation that would be caused by vacating an otherwise fair conviction.” Id.
2. Wolfenbarger concedes that his challenge to the denial of his motion
to suppress is foreclosed by United States v. Rosenow, 50 F.4th 715 (9th Cir.
2022), cert. denied, 143 S. Ct. 786 (2023). Rosenow was decided while this appeal
was pending, and it involved the same investigation by Yahoo into Philippines
webcam child pornography that Wolfenbarger challenges here. Rosenow
addressed the same legal issue presented here: whether Yahoo was a government
actor when it searched a user’s account. See id. at 724. Wolfenbarger argues that
Rosenow was wrongly decided. But as a three-judge panel, we are bound by
Rosenow. See Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc). We
therefore reject Wolfenbarger’s challenge.
AFFIRMED.

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