Submitted: October 18, 2019
from United States District Court for the District of South
Dakota - Sioux Falls
SMITH, Chief Judge, GRUENDER and BENTON, Circuit Judges.
BENTON, CIRCUIT JUDGE
convicted Maksim M. Stefanyuk of three counts of receipt and
distribution of child pornography, in violation of 18 U.S.C.
§ 2252A(a)(2)(A), and one count of failing to register
as a sex offender, in violation of 18 U.S.C. § 2250(a).
The district court sentenced him to 262 months'
imprisonment. Stefanyuk appeals the denial of his motion to
suppress and the admission of evidence about his prior child
pornography conviction. Having jurisdiction under 28 U.S.C.
§ 1291, this court affirms.
2011, Stefanyuk pled guilty to possessing child pornography.
In 2017, law enforcement discovered that someone residing in
his house was viewing child pornography. Homeland Security
Investigations Special Agent Charla Aramayo began physically
surveilling the house. Eventually, she requested electronic
video surveillance equipment ("EVSE") across the
street. The South Dakota Division of Criminal Investigation
installed a hidden pole camera 15 feet off the ground in a
public right of way facing the house. The camera operated for
two weeks; it could pan, tilt, and zoom, but not see inside
the house. Initially, the recordings were saved, but they
were lost before trial. Stefanyuk moved to suppress evidence
obtained through the EVSE. The district court denied the
believes the "warrantless long-term around-the-clock
video recordings and surveillance of [his] home violated his
Fourth Amendment rights." This court affirms the denial of
a motion to suppress "unless it is unsupported by
substantial evidence, based on an erroneous interpretation of
the law, or, based on the entire record, it is clear that a
mistake was made." United States v. Wells, 347
F.3d 280, 286 (8th Cir. 2003). This court reviews findings of
fact for clear error and legal conclusions de novo.
United States v. Davis, 569 F.3d 813, 816 (8th Cir.
parties dispute whether the EVSE required a warrant and
whether Stefanyuk's supervised-release status diminished
his privacy expectations. This court need not decide these
issues, however, because evidence from the EVSE did not
sufficiently influence the jury, and any error was harmless.
See United States v. Davis, 449 F.3d 842, 847 (8th
Cir. 2006) ("An error is harmless if it does not affect
substantial rights of the defendant, and did not influence or
had only a slight influence on the verdict.") (cleaned
up). See also United States v. Martinez, 462 F.3d
903, 910 (8th Cir. 2006) (statements should have been
suppressed, but "[g]iven the other admissible evidence
against Martinez, we find that failure to suppress these
statements did not sufficiently influence the jury to merit
our reversal, and thus was harmless error").
only trial evidence from the EVSE was testimony from Agent
Aramayo that she saw Stefanyuk "arriving at the
residence in a vehicle at an early hour on two specific
occasions." However, there was significant non-EVSE
evidence showing he lived at that house: (1) Agent Aramayo
testified that she drove by the house and saw him outside;
(2) employment and internet subscriber records listed his
address; (3) law enforcement testified that he lived at the
same address in 2011 when he was convicted of possessing
child pornography; and (4) he was present at the house when
officers executed the search warrant. Given all the evidence,
the failure to suppress the EVSE "did not sufficiently
influence the jury to merit . . . reversal, and thus was
harmless error." Id.
contends the district court erred in admitting evidence,
specifically testimony of an investigating officer, about his
prior child pornography conviction. This court reviews
evidentiary rulings for abuse of discretion. United
States v. Holy Bull, 613 F.3d 871, 873 (8th Cir. 2010).
"In a criminal case in which a defendant is accused of
child molestation, the court may admit evidence that the
defendant committed any other child molestation. The evidence
may be considered on any matter to which it is
relevant." Fed. R. Evid. 414(a).
Offenses of "child molestation" include possession
of child pornography. See Fed. R. Evid.
414(d)(2)(B) (holding that "child
molestation" includes "any conduct prohibited by 18
U.S.C. chapter 110"). This court has upheld the
admission of Rule 414(a) evidence when it is "strikingly
similar" to the crime charged. United States v.
Summage, 575 F.3d 864, 878 (8th Cir. 2009). Here, the
district court thoroughly considered the admissibility of the
evidence about Stefanyuk's prior child pornography
conviction, finding it was "basically the same crime,
the same criminal type of conduct."
district court also found the evidence admissible under Rule
404(b) which permits the admission of evidence of other
crimes or similar acts if relevant to establish motive,
opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident. Fed. R.
Evid. 404(b). Rule 404(b) is a rule of inclusion;
the district court has broad discretion to admit Rule 404(b)
evidence. See United States v. Butler, 56 F.3d 941,
944-45 (8th Cir. 1995) (holding that evidence of
defendant's prior, uncharged sexual contact with victim
was admissible). Here, the government offered evidence of
Stefanyuk's previous child pornography conviction,