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Case: 12-12321 Date Filed: 05/02/2013 Page: 1 of 7
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`IN THE UNITED STATES COURT OF APPEALS
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`FOR THE ELEVENTH CIRCUIT
`________________________
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`Nos. 11-15461; 12-12321
`Non-Argument Calendar
`________________________
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`D.C. Docket No. 1:11-cr-20265-JAL-1
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`
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`UNITED STATES OF AMERICA,
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`JAMES ROBERT RICHARDSON,
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`versus
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`Plaintiff-Appellee,
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`Defendant-Appellant.
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`________________________
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`Appeals from the United States District Court
`for the Southern District of Florida
`________________________
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`(May 2, 2013)
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`Before: CARNES, BARKETT, and PRYOR, Circuit Judges.
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`PER CURIAM:
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`
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`James Robert Richardson appeals his convictions and sentence of 210
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`months of imprisonment for three counts of distributing child pornography, 18
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`

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`Case: 12-12321 Date Filed: 05/02/2013 Page: 2 of 7
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`U.S.C. § 2252(a)(2), and one count of possessing child pornography, id.
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`§ 2252(a)(4)(B). Richardson challenges the denial of his motion to suppress, the
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`admission of video recordings of child pornography, and the denial of his motion
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`for a new trial. Richardson also challenges the denial of his request for a
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`downward departure and the reasonableness of his sentence. We affirm.
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`Richardson argues that the district court should have suppressed the video
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`recordings seized from his residence during the execution of a search warrant
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`because there was stale information in the underlying affidavit, but we need not
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`address this argument because Richardson waived any challenge to an alternative
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`ground for that ruling. The district court determined that the warrant was
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`supported by probable cause and ruled, in the alternative, that the agents acted in
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`good faith by relying on the search warrant, see United States v. Leon, 468 U.S.
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`897, 922, 104 S. Ct. 3405, 3420 (1984). Richardson failed to challenge the
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`alternative ruling in his initial brief. See United States v. Jernigan, 341 F.3d 1273,
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`1284 n.8 (11th Cir. 2003).
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`
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`The district court also did not abuse its discretion by admitting into evidence
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`short segments of some of the pornographic video recordings. Richardson argues
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`that the prejudicial effect of the explicit videos outweighed their probative value
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`given his stipulation that they contained child pornography, but Richardson
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`contested the issue of his mens rea. In recognition that all incriminating evidence
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`2
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`Case: 12-12321 Date Filed: 05/02/2013 Page: 3 of 7
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`is inherently prejudicial, Federal Rule of Evidence 403 excludes evidence of only
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`“scant or cumulative probative force,” United States v. King, 713 F.2d 627, 631
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`(11th Cir. 1983), and “is not designed to permit the court to ‘even out’ the weight
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`of the evidence, to mitigate a crime, or to make a contest where there is little or
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`none,” United States v. McRae, 593 F.2d 700, 707 (5th Cir. 1979). The video
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`recordings are probative of whether Richardson knew the videos depicted minors
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`engaging in sexually explicit conduct and intended to distribute those videos in
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`interstate commerce. See United States v. Dodds, 347 F.3d 893, 899 (11th Cir.
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`2003). As Richardson acknowledged during a pretrial hearing, “[t]he government
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`[was] . . . very good in limiting the amount” of video footage to show the jury. Of
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`the 118 videos that Richardson possessed, the government prepared segments of
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`less than three and one half minutes of 10 videos that contained more than 140
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`minutes of pornography and introduced, in the end, excerpts of only 9 of those
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`videos. See id.; United States v. Alfaro-Moncada, 607 F.3d 720, 734 (11th Cir.
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`2010). And the district court sought to prevent any unfair prejudice by inquiring
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`during voir dire whether any prospective juror “would not be able to sit, view and
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`listen to the evidence . . . and be fair to both the Government and the Defendant”
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`after viewing video recordings “that depict minors in very graphic sexual
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`situations.” See Dodds, 347 F.3d at 899.
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`3
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`

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`Case: 12-12321 Date Filed: 05/02/2013 Page: 4 of 7
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`Richardson argues that the district court should have “view[ed] [the videos]
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`prior to trial,” but even if we assume the district court erred by not viewing the
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`videos, the error was harmless in the light of the “overwhelming evidence of
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`[Richardson’s] guilt,” United States v. Phaknikone, 605 F.3d 1099, 1109 (11th Cir.
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`2010). Testimony from agents of the Federal Bureau of Investigation established
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`that an internet protocol address assigned to Richardson shared five video files of
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`child pornography through a peer-to-peer file sharing network in January 2011 and
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`shared eight more video files of child pornography on two occasions in March
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`2011; Richardson remarked spontaneously on seeing agents at his home, “You are
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`here because of the kiddie porn”; and agents discovered in the master bedroom a
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`computer containing 13 pornographic videos on the hard drive and a plastic bag of
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`30 computer disks containing 105 video recordings of child pornography.
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`Richardson admitted to downloading the video recordings from the internet and to
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`sharing child pornography through the internet, see 18 U.S.C. § 2252(a)(2),
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`(a)(4)(B), and the videos depicted sexually explicit conduct of young children
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`engaging in various sexual acts with adults, including one video of a girl who was
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`approximately ten years old being raped by an adult man.
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`
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`The district court did not abuse its discretion by denying Richardson’s
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`motion for a new trial. Richardson asserted that trial counsel was ineffective for
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`misadvising him that he faced the same penalty for both offenses, but the record
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`4
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`Case: 12-12321 Date Filed: 05/02/2013 Page: 5 of 7
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`supports the contrary conclusion of the district court. Although trial counsel
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`averred in one affidavit that he misadvised Richardson that he faced the same
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`penalty for both offenses, counsel averred in a second affidavit that he had
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`confused Richardson’s case with another case and that pretrial notes refreshed his
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`memory about informing Richardson of the correct sentence ranges. The district
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`court was entitled to credit trial counsel’s testimony that he gave accurate
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`sentencing information to Richardson. See United States v. McPhee, 336 F.3d
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`1269, 1275 (11th Cir. 2003). Trial counsel’s testimony was consistent with
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`counsel’s pretrial notes and with Richardson’s testimony that counsel “explained . .
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`. that [one offense] was [subject to] a five-year minimum mandatory” and “[t]he
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`other one was zero to five years.” Richardson argues that trial counsel was
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`ineffective for blaming Richardson’s son and wife for the pornography and failing
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`to call certain witnesses or investigate an excuse-based defense, but Richardson
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`raised these new arguments for the first time at his evidentiary hearing, which was
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`held well beyond the 14-day period allowed to seek a new trial. See Fed. R. Crim.
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`P. 33(b)(2). And the district court could not entertain Richardson’s new arguments
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`as grounds for a motion to vacate because Richardson already had filed a written
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`notice to appeal his convictions. See United States v. Wilson, 894 F.2d 1245, 1252
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`(11th Cir. 1990).
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`5
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`Case: 12-12321 Date Filed: 05/02/2013 Page: 6 of 7
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`We lack jurisdiction to review the denial of Richardson’s request for a
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`downward departure. We cannot examine a discretionary decision not to depart
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`downward “unless the district court incorrectly believed that it lacked authority to
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`grant the departure.” United States v. Dudley, 463 F.3d 1221, 1228 (11th Cir.
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`2006). The district court considered Richardson’s age and his “medical issues”
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`and determined that his request for a downward departure and “a sentence of 60
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`months would [not] meet the requirements of 3553(a), given the very serious
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`nature of the offense, the characteristics of the videos, the extended period of time
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`during which [he] was involved in downloading and possessing child pornography
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`and the need for the sentence imposed to provide just punishment.” The record
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`establishes that the district court “understood that it could depart, but chose not to
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`do so.” Dudley, 463 F.3d at 1228.
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`The district court did not abuse its discretion in sentencing Richardson to a
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`term of imprisonment at the low end of the advisory guidelines range. The district
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`court found that Richardson possessed “without doubt the most horrific child
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`pornography videos that [the district court] . . . in [its] 15 years plus . . . [had] ever
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`seen”; he kept the videos “on [his] computer and . . .[on] numerous CDs under his
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`desk” in his bedroom; and “every time [he] download[ed] [videos] . . . [there were]
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`real children who[were] being victimized over and over again.” The district court
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`considered Richardson’s age and ailments and reasonably determined that the
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`6
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`Case: 12-12321 Date Filed: 05/02/2013 Page: 7 of 7
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`statutory purposes of sentencing were best served by imposing a sentence of three
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`concurrent terms of 210 months for distributing child pornography to run
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`concurrent with one term of 120 months for possessing child pornography. See 18
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`U.S.C. § 3553(a). Richardson’s argument that his “typical downloader case”
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`warranted a lesser sentence is unpersuasive in the light of the heinous nature of the
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`videos he possessed, the atrocious abuses the children suffered in those videos, and
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`the number of children abused in the 118 videos that he downloaded. Richardson’s
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`sentence is reasonable.
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`We AFFIRM Richardson’s convictions and sentence.
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`
`
`7

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