On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 07-cr-298) District Judge: Hon. Arthur J. Schwab
The opinion of the court was delivered by: Jordan, Circuit Judge.
Before: McKEE, Chief Judge, FUENTES, and JORDAN, Circuit Judges.
David Cunningham appeals the September 27, 2010 judgment of the United States District Court for the Western District of Pennsylvania sentencing him to 210 months' imprisonment and 20 years' supervised release based on his conviction for the receipt and distribution of child pornography, in violation of 18 U.S.C. § 2252(a)(2). At trial, the District Court allowed the government, over Cunningham's objection, to show the jury two videos containing seven different video clips totaling approximately two minutes as a sample of the child pornography that gave rise to the charges. Cunningham contends that, because the Court permitted the videos to be shown without first viewing the videos to determine whether the danger of unfair prejudice substantially outweighed their probative value, the Court erred and his conviction must be reversed. We agree that the District Court abused its discretion, not only by failing to review the videos prior to admitting them but also by allowing all of those videos to be shown to the jury, because the highly inflammatory nature of two of them clearly and substantially outweighed their probative value pertaining to the crimes charged. Those errors were not harmless, and we will therefore vacate and remand for a new trial.
According to the government's evidence, Cunningham lived at 7 Mingo Creek Road, Eighty Four, Pennsylvania, a residence that he shared with two older siblings, Sarah and Harold.*fn1 His mother, Doris, also resided at that residence until her death in March 2007.
On June 19, 2007, Pennsylvania State Police Corporal Robert Erdely conducted an undercover online investigation of peer-to-peer file sharing networks.*fn2 During that investigation, Erdely discovered a computer with an IP address located in southwestern Pennsylvania sharing over 100 files on a peer-to-peer network known as Gnutella through a file sharing program known as LimeWire. After looking at hash values that were being shared by that computer, Erdely recognized, based on previous investigations, numerous files with a hash value suggestive of child pornography.*fn3 Through a feature within Gnutella, Erdely was able to make a direct connection between his computer to the computer sharing the files, and downloaded six movies. All six of the movies contained prepubescent children engaging in sexual activity. After reviewing the downloaded video files, Erdely obtained a court order to identify the IP address that had shared the files in question, and it was determined that the subscriber of the IP address was registered to Cunningham's deceased mother, Doris, at 7 Mingo Creek Road, Eighty Four, Pennsylvania.*fn4
Thereafter, a federal search warrant was obtained for 7 Mingo Creek, and Erdely, along with another Pennsylvania state trooper and several FBI agents, executed the warrant on July 17, 2007. Although Cunningham was not at his residence when the investigators arrived, they identified themselves to Sarah and Harold, and explained to them the nature of the investigation. Sarah informed the investigators that the only working computer in the residence belonged to Cunningham and was located in his bedroom. Erdely and the agents then searched Cunningham's bedroom, where they found mail and paperwork addressed to Cunningham. Erdely seized the computer and undertook a preliminary review of its hard drive. During that review, Erdely found that 36 out of 212 shared files contained child pornography.
Cunningham returned to the residence while the search was ongoing. He admitted to installing LimeWire on his computer, and that he had used LimeWire to search for pornography in general. According to testimony from the FBI agents at trial, Cunningham also admitted that he had downloaded child pornography using LimeWire, had been looking at child pornography on the computer and on LimeWire since 2006, and had used search terms like "child," "kiddy," and "PTHC" [pre-teen hardcore] to download files from LimeWire. There was also testimony that, after Erdely showed Cunningham the list of all of the file names on the seized computer, Cunningham acknowledged that those files were from his shared directory, and he estimated that child pornography comprised 20 to 30 percent of the material on his computer.*fn5
Forensic analysis of the computer found in Cunningham's bedroom revealed that 46 of the 212 files in the shared directory contained child pornography. In addition, a search of a folder that contained files that were not completely downloaded revealed 11 more videos that contained child pornography. A list of search terms, many of which referred to child pornography, was also recovered from the computer. Subsequent to that analysis, Cunningham was arrested and charged in a three count indictment for receiving, possessing, and distributing child pornography. He pled not guilty to all charges.
Prior to trial, Cunningham filed a Motion in Limine Concerning Pornographic Images and File Names. In that motion, he requested, pursuant to Federal Rule of Evidence 403,*fn6 an order precluding the government from showing the jury any of the child pornography videos recovered from the computer. Cunningham argued that, because he was stipulating that the government exhibits constituted child pornography, the probative value of any videos was substantially decreased. The District Court issued an order denying Cunningham's motion, allowing the government to publish "representative samples of the Child Pornography instead of the entire 'collections,' as well as the file names of the various files in the 'collection.'" (App. at 1.)*fn7 The Court's order also noted that "the parties may (but are not required to) stipulate that the child pornography evidence constitutes child pornography for the purposes of the Indictment." (Id.) Following the Court's direction to "meet in an attempt to stipulate to a Joint Cautionary Jury Instruction" (id.), the parties agreed to the following stipulation:
[T]hat the video files obtained from IP address
18.104.22.168 on June 19, 2007, constitute visual depictions of real children under the age of 18 engaging in sexually explicit content. The parties further stipulate and agree that the video files recovered from the computer at 7 Mingo Creek Road on July 17, 2007, constitute visual depictions of real children under the age of 18 years of age engaging in sexually explicit conduct.
Five days later, Cunningham filed a Motion to Limit Evidence of Child Pornography. That motion, which noted that the government had provided defense counsel with the video clips that it intended to introduce at trial, described those proposed video excerpts in graphic detail:*fn8
These clips include graphic and haunting images of child pornography. Specifically, they include a close up of an adult woman licking a very young female child's genitalia -- so young, in fact, the child appears to be a toddler; videos of penetration; several videos depicting children tied up and/or blindfolded, including images where a young, prepubescent girl was penetrated by an adult male while her ankles and wrists appeared to be bound to a table. Several videos showed the faces of the children. In every image where a face is shown, the body (specifically, breasts, genitalia, and lack of pubic hair) clearly, and unequivocally, proves that the image portrays a child. In one, a young girl is seen performing oral sex on an adult male, who ejaculates on her face, which is openly displayed for the camera.*fn9
(Id. at 201 (internal footnote omitted).) Cunningham argued that those "images not only reveal children engaging in sexually explicit conduct; they are obscene, violent, and humiliating, necessarily conjuring feelings of disgust and blind rage." (Id.) Cunningham objected to the government's video excerpts and proposed that, if the Court was going to allow the government to introduce those exhibits, they should be limited in four ways: (1) only still images of any video should be shown; (2) no images, whether still or part of a video, should display bondage or actual violence, including the penetration of prepubescent children by adults; (3) no audio should accompany any of the video; and (4) the faces of any minors should be obscured from all images.
In response to that motion, the government agreed not to use audio in the video excerpts, but it "strenuously object[ed] to the [other] limitations urged by [Cunningham] as efforts to sanitize, distort and mitigate the force of evidence that constitutes the very evidence of the offenses charged." (Id. at 222.) The government argued that, even with the stipulation, it bore "an extremely high burden to establish . that the defendant knowingly distributed, received and possessed these images, that he was aware of their character as child pornography, [and] that he was aware that the images depicted real minors engaging in sexually explicit conduct." (Id. at 223.) Therefore, the government contended that "it would be unfair to say that, because the defendant offered to stipulate to some of what the government needs to prove, the government should be hindered in its ability to satisfy its remaining obligation of proof." (Id. at 223-24.)
In specifically arguing against the omission of excerpts that portray bondage and actual violence, the government noted that "[t]he average person . is not aware . [that] the content at issue . may contain depictions of sadomasochistic sexual abuse," and that child pornography, in general, contains "frequent depictions of the documented sexual assault of children by adults with whom they come into contact." (Id. at 226.) Thus, the government contended that the jury should be allowed to see such depictions to "fully appreciate the nature of child pornography crimes, which necessitates consideration of the images themselves." (Id. at 227.) The government represented that it had "preselected clips of videos that [were] representative of the full collection," and "propose[d] to admit and publish 7, several-second video clips, from in excess of 50 such videos, some of which were originally as long as 30 minutes." (Id. at 227.) The government asserted that it had been responsive to Cunningham's concerns by "agree[ing] to omit one of two videos which depict[ed] sado-masochistic sexual abuse of minors." (Id.)
Relying only on the papers submitted, the District Court denied Cunningham's motion with the exception of granting his request -- already agreed to by the government -- that no audio be used in the video images presented. The Court held that the government was entitled to prove its case in the manner that it chose, although the Court noted its hope that the government would do so "in a condensed format." (Id. at 4.) Additionally, the Court found that "still images [were] not representative of the actual evidence in this case." (Id.) As to Cunningham's other requests, including for a prohibition of images that depicted actual violence, the Court decided it would not grant them because they would "restrict the actual character of the evidence." (Id. at 5.) In conclusion, the Court, without having watched the video excerpts, held that, "[a]fter conducting a balancing of the evidence under [Rule 403], the probative value of [the] evidence [was] not substantially outweighed by its prejudicial effect." (Id.)
At the final pretrial conference held on April 8, 2010, Cunningham advised the Court of his intent to file a motion for reconsideration of the video excerpts' admissibility, and asked the Court to review the excerpts prior to ruling. The Court immediately denied that motion, saying that counsel "had plenty of time to file motion after motion, which [counsel had] done." (Id. at 253.) The Court noted that it had "ruled again and again and again; and [was] sorry [counsel] [did not] like it, but . [counsel] [could not] come in every day and give us another snapshot and more motions, and the next day another snapshot and more motions." (Id.) However, notwithstanding that oral ruling, the Court said that if Cunningham wanted to file a motion, he needed to do so by 4:00 p.m. that day.
Cunningham complied with that directive and filed the motion later that day. In the motion, Cunningham asserted that his defense was that someone else had downloaded, possessed, and distributed the child pornography at issue, and, in addition to the stipulation already made, he agreed that whoever possessed, received, and distributed those images would know that they depicted real children engaging in sexually explicit activity. As a result, he argued there was little value in presenting the video excerpts, especially considering "the uniqueness and significance of this type of contraband." (Id. at 265.) Therefore, Cunningham urged the Court to rule that the video excerpts were ...