United States of America v. Shawn Joseph McCormack

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SHAWN JOSEPH MCCORMACK,
Defendant-Appellant.
No. 15-10500
D.C. No.
1:11-cr-00324-AWI-BAM-1
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Argued and Submitted June 16, 2017
San Francisco, California
Before: SCHROEDER, FISHER,** and N.R. SMITH, Circuit Judges.
Shawn McCormack appeals his convictions and sentences for charges of
sexually exploiting two young children and twice kidnapping one of the children.
McCormack, a resident of Colorado, was intercepted by police officers in
FILED
JUL 3 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable D. Michael Fisher, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.

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Bakersfield, California, after McCormack had traveled to California and taken one
of the two children from his parents’ home in the middle of the night. Later, police
uncovered photographic and video evidence of sexual abuse after McCormack had
taken the child to a hotel. Other photographs and videos captured an adult male
abusing children and exposing his genitals, a sleeping child below him. A jury
found McCormack guilty of four counts of sexual exploitation of children, 18
U.S.C. § 2251, and two counts of kidnapping, 18 U.S.C. § 1201. We have
jurisdiction under 18 U.S.C. § 1291 and affirm.
McCormack challenges the admission of the photos and videos, as well as
email and chat logs of McCormack discussing the crimes and seeking to exchange
child pornography with others. The district court did not abuse its discretion in
admitting this evidence. See Fed. R. Evid. 403, 404(b). The evidence was highly
probative of the crimes, serving to identify the perpetrator and the location of the
crime. That value was not substantially outweighed by the risk of unfair prejudice.
The district court was careful to limit the jury’s exposure to such visual evidence.
There was no abuse of discretion in admitting written exchanges, even if
they could be viewed as evidence of “other acts” establishing propensity pursuant
to Fed. R. Evid. 404(b). The written exchanges also provided evidence of scienter,
identity, and opportunity. Moreover, the evidence falls within an evidentiary
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exception, Fed. R. Evid. 414, which allows admission of evidence of child
molestation in cases where the defendant is charged with a child pornography
offense. See Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1268 (9th Cir.
2000) (noting that Fed. R. Evid. 414 was enacted as an exception to Fed. R. Evid.
404(b)’s prohibition on propensity evidence). And the probative value of the
evidence was not outweighed by the risk of unfair prejudice. See Fed. R. Evid.
403; United States v. LeMay, 260 F.3d 1018, 1027–30 (9th Cir. 2001). Finally,
even if McCormack had shown that his stipulations negated the need for this
evidence as to some of the elements of the offense, the evidence was still
admissible (and highly probative) to prove the disputed elements of identity and
scienter. See Old Chief v. United States, 519 U.S. 172, 190–91 (1997).
McCormack challenges the sufficiency of the evidence to support his
convictions for one of the kidnapping counts and one of the sexual exploitation of
children counts. The evidence in this case was more than sufficient to establish
sexual exploitation. See United States v. Overton, 573 F.3d 679, 686–88 (9th Cir.
2009). Nor did the district court err in denying acquittal on the kidnapping count.
The federal statute allows for a conviction where “the offender travels in interstate
or foreign commerce or uses . . . any means, facility, or instrumentality of interstate
or foreign commerce in committing or in furtherance of the commission of the
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offense.” 18 U.S.C. § 1201(a)(1). Viewing the evidence in the light most
favorable to the prosecution, a reasonable jury could conclude that McCormack
drove from Colorado to California and used a telephone, both in furtherance of his
kidnapping scheme.
Lastly, McCormack argues that the district court did not adequately consider
whether a sentence of life imprisonment was harsher than necessary. The district
court did not abuse its discretion. It extensively analyzed the circumstances of
McCormack’s crime and correctly applied the sentencing factors, which are used to
inform the sentencing inquiry. See 18 U.S.C. § 3553(a). The district court thus
dutifully fulfilled its “overarching duty” to impose a sentence that was sufficient
but not greater than necessary. See Pepper v. United States, 562 U.S. 476, 491
(2011).
AFFIRMED.
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