United States v. David Cunningham , 694 F.3d 372 ( 2012 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 10-4021
_____________
UNITED STATES OF AMERICA
v.
DAVID L. CUNNINGHAM,
Appellant
_______________
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
_______________
Argued
January 12, 2012
Before: McKEE, Chief Judge, FUENTES, and JORDAN,
Circuit Judges.
(Filed: September 18, 2012)
_______________
Kimberly R. Brunson [ARGUED]
Lisa B. Freeland
Office of Federal Public Defender
1001 Liberty Avenue - #1500
Pittsburgh, PA 15222
Counsel for Appellant
Rebecca R. Haywood [ARGUED]
David J. Hickton
Soo C. Song
Office of the United States Attorney
700 Grant Street - #4000
Pittsburgh, PA 15129
Counsel for Appellee
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
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
2
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.
I. Background
A. Factual Background
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. 1 His mother, Doris, also resided at that residence
until her death in March 2007.
1
For simplicity, and meaning no disrespect by over-
familiarity, we will refer to Cunningham’s relatives by their
first names.
3
On June 19, 2007, Pennsylvania State Police Corporal
Robert Erdely conducted an undercover online investigation
of peer-to-peer file sharing networks. 2 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. 3 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
2
Peer-to-peer file sharing networks “utilize[] the
Internet to allow individuals to share data contained in
computer files. [Peer-to-peer] file sharing can be used to
share child pornography and trade digital files containing
images of child pornography.” United States v. Stults, 575
F.3d 834, 838 (8th Cir. 2009).
3
Each hash value “is an alphanumeric string that
serves to identify an individual digital file as a kind of ‘digital
fingerprint.’ Although it may be possible for two digital files
to have hash values that ‘collide,’ or overlap, it is unlikely
that the values of two dissimilar images will do so.” United
States v. Wellman, 663 F.3d 224, 226 n.2 (4th Cir. 2011)
(citation omitted).
4
was registered to Cunningham’s deceased mother, Doris, at 7
Mingo Creek Road, Eighty Four, Pennsylvania. 4
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
4
The e-mail address associated with the internet
account that the computer user chose was
“reptilewild@comcast.net.” The record indicates that,
beginning in 1998, Cunningham had been involved in the
care, breeding, trade, and exhibition of reptiles.
5
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. 5
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.
B. Procedural History
1. Pretrial Proceedings
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, 6 an order precluding the government from showing the
5
Cunningham later testified to viewing child
pornography in 2001 and 2006, but denied telling the
investigators that he had downloaded child pornography or
searched for it.
6
Federal Rule of Evidence 403 provides: “The court
6
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.) 7 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
71.206.239.202 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
may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Fed. R. Evid. 403.
7
Citations to “(App. at [page number])” are to the
Appellant’s four volume appendix in the present appeal.
7
depictions of real children under the age of 18
years of age engaging in sexually explicit
conduct.
(Id. at 196-97.)
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: 8
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
8
In many, perhaps most, opinions addressing child
pornography prosecutions, it is possible to resolve the legal
issues without subjecting the reader to the graphic and
disturbing details of the pornography. Because of the
character of the issues confronting us here, however, we
cannot avoid the details. In fact, it will be necessary to
provide more graphic detail later herein. See infra note 10
and accompanying text.
8
(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. 9
9
The government did not provide a description of the
proposed video excerpts to the District Court when arguing to
the Court that those excerpts should be admitted. The only
descriptions that the government had provided to the Court of
any of the videos giving rise to the charges was in its
response to a pretrial motion to suppress filed by
Cunningham. In that response, the government gave brief
descriptions of the six videos that Erdely had downloaded
from the IP address during his undercover investigation on
June 19, 2007. The descriptions provided to the Court were
as follows (without the explicit file names):
[A] pre-pubescent female performs oral sex on
an apparent adult male, and engages in sexual
intercourse with an adult male;
…
[A] pre-pubescent female and male child
engage in sex acts upon each other. The
children are appear [sic] to be 10 years old;
…
[A] female child approximately 6 years-old
performs oral sex on an adult male;
…
[A]n adult female performs oral sex on an infant
9
(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
child approximately 2 years old;
…
[A]n apparent 12 year-old female is seen in the
video dancing. The child pulls down her pants
exposing her vagina and then pulls up her shirt
exposing her breasts. The child appears to be
pre-pubescent;
…
[A]n apparent 6 year-old male child (pre-
pubescent) engages in sexual intercourse with
an adult female.
(S. App. at 11-13.) As discussed later herein, excerpts from
some of those six videos were eventually shown to the jury.
10
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 sado-
masochistic 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 “pre-
selected 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
11
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
12
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 inadmissible, or
alternatively, subject to further limitations. Once again,
Cunningham requested that the Court view the video excerpts
prior to making a ruling on their admissibility.
On April 12, 2010, the Court denied Cunningham’s
motion. The Court stated that Cunningham “cite[d] no case
precedent for its proposition that the child pornography must
be viewed by the Court or that it is a necessary exercise of the
Court’s discretion to do so.” (Id. at 17.) The Court found
that “the descriptions [of the video excerpts] [were] sufficient
for [it] to rule [on the past and pending motions], since the
descriptions [were] quite telling of the images and their
graphic nature.” (Id. at 17-18.) Thereafter, Cunningham
proceeded to trial.
13
2. Jury Trial
a) Voir Dire
Prior to voir dire, Cunningham requested that the
District Court advise all potential jurors that, if selected, they
would “see a movie that shows a prepubescent minor being
sexually penetrated by an adult,” and “see graphic images of
children, their genitals, and videos of illegal sexual acts,
including oral sex, sexual intercourse, and graphic, violent,
sexual images.” (Id. at 170-71.) The Court did not adopt that
preview of the evidence. Instead, during voir dire, the Court
provided all potential jurors with the following information
and asked them the following question:
[T]his case involves an accusation that the
Defendant received, possessed and distributed
child pornography. During this trial you will be
shown child pornography including graphic
images and hear descriptions of computer files
including graphic and offensive file names
which will certainly be disturbing to most if not
all of you.
Regardless of your feelings on this subject
matter and the graphic nature of the material
presented, are you able to render a fair and
impartial verdict based solely on the evidence
presented in this court and my instructions to
you on the law?
(Id. at 302-03.) After hearing that, several jurors responded
that they might have difficulty being impartial, and, as a
14
result, were excused for cause. When counsel and the Court
further questioned other jurors individually at sidebar
regarding answers they had given about their impartiality,
more detailed information on the pornography was revealed
and a few of those jurors were subsequently excused for
cause. One potential juror, after learning that the videos
would show children under the age of eight, determined that it
would be difficult to be impartial. Another potential juror
was excused for cause after she indicated her distress at the
revelation that the videos would include portrayals of children
as young as toddlers being molested.
b) Video Excerpts
During trial, over Cunningham’s objection, the
government offered into evidence, and played for the jury,
two separate videos containing a total of seven video excerpts
of the child pornography either obtained from the IP address
registered to Cunningham’s deceased mother or recovered
from the computer seized from Cunningham’s bedroom. The
first video, approximately a minute in length, contained
excerpts from three of the six videos that Erdely had obtained
from the IP address on June 19, 2007. The following are
descriptions of those video excerpts: 10
10
Although the government provided us with these
very detailed descriptions of the seven video excerpts in its
appellate brief, it did not provide any description of the
excerpts to the District Court when it was arguing that the
video excerpts should be admitted. See supra note 9. The
summary of the video excerpts furnished to the District Court
by Cunningham at the time was also graphic, see supra note 8
and accompanying text, but it did not contain the level of
15
[Excerpt 1 11 (20 seconds of total file length of
2:16):] The video depicts an adult woman
licking and digitally manipulating the genitals
of a very young appearing pre-pubescent child.
At the end of the clip, the same woman is
shown on her back, with a nude male pre-
pubescent child facing her.
…
[Excerpt 2 (27 seconds of total file length of
1:30):] This video depicts two pre-pubescent
boys engaging in vaginal intercourse with an
adult woman. The woman is then depicted
kissing their penises. A clothed adult male is
then shown, and one of the pre-pubescent boys
is seen unzipping the adult male’s pants. In the
next clip, which is of poor quality, the pre-
pubescent child appears to be sucking on the
adult male’s penis while being coached by the
adult female.
detail that the government has provided to us. To say that the
government’s descriptions of the video excerpts are
loathsome is an understatement. However, we reproduce the
full description of each video excerpt because, as mentioned
earlier, supra note 8, an understanding of the aggregate effect
of the content contained in each video excerpt bears on our
holding in this case.
11
For ease of reference to certain excerpts that are
discussed later herein, we assign a number to each of the
seven video excerpts.
16
…
[Excerpt 3 (18 seconds of total file length of 21
seconds):] A prepubescent female child is
shown pulling her pants to expose her nude
genitalia, which is undeveloped and lacks pubic
hair. She then pulls up her shirt to reveal her
breasts, which are undeveloped. Another child
can be seen in the background, also exposing
nude breasts which are undeveloped, the child
could be a male or female child.
(Appellee’s Br. at 16.)
The second video, also approximately a minute in
length, contained excerpts from four of the more than forty
videos seized from the computer found in Cunningham’s
bedroom following the execution of the search warrant.
Those excerpts contained the following depictions:
[Excerpt 1 (17 seconds of total file length of
3:23):] Prepubescent female child is shown
dropping skirt, and exposing her nude genitalia.
This child is then depicted nude with rope
encircling her breasts and going up to her neck.
She is standing and appears to be suspended
from a ceiling with her arms above her. An
adult male stands behind her. He is
aggressively manipulating her genitalia while
masturbating himself. Child is then depicted
with thicker rope retraining [sic] her, as she is
reclined and tied to a bench. Rope binds her
legs and midsection. She has a mask on her
face. An adult male stands above her, and
17
manipulates her genitalia. The child flinches.
The adult male stands over her and inserts his
penis into her mouth.
…
[Excerpt 2 (20 seconds of total file length of
14:12):] Prepubescent nude female child
performs oral sex on an adult male, while
straddling him from above. Her genitals appear
to be in the area of his head or face. Child then
shown lying beside with [sic] the adult male,
with her hand in [sic] his erect penis. Video
then depicts a close-up of the child’s genitalia,
she is on all fours peering back between her
legs at the camera. The adult male is
manipulating her genitals for the camera with
his thumb. Adult male is then shown
masturbating, the child is standing or kneeling
with her mouth near his penis. There are
multiple shots of the child handling the adult
male’s penis. The final clip shows the child,
nude with ejaculate on her face and chest as she
looks at the camera.
…
[Excerpt 3 (17 seconds of total file length of
2:55):] This video depicts a very young
(perhaps 3-5 years of age) nude female child
being suspended upside down, while an adult
male vaginally penetrates her with his penis.
The screen then depicts a close up of an adult
male penis being forced into a child’s vagina
18
while the child is held upside-down by the adult
male. The video finally depicts a close up view
of an adult male anally penetrating the child
from behind. The adult male withdraws his
penis, and ejaculates upon the back of the child.
…
[Excerpt 4 (14 seconds of total file length of 21
seconds):] A female prepubescent child pulls
down her pants while facing a webcam and
displays her buttocks and genitals.
(Id. at 17-18.) Both before and after each of the video
excerpts were played for the jury, the District Court read a
cautionary instruction, which directed the jury to view the
images in a fair and impartial manner.
3. Conviction and Sentencing
The jury convicted Cunningham on all counts.
On September 27, 2010, the District Court sentenced
Cunningham to 210 months’ imprisonment for receiving child
pornography in violation of 18 U.S.C. § 2252(a)(2) (“Count
One”), and 120 months’ imprisonment for distributing child
pornography in violation of 18 U.S.C § 2252(a)(2) (“Count
Three”), to be served concurrently. The District Court
vacated Cunningham’s conviction for possessing child
pornography in violation of 18 U.S.C. § 2252(a)(4) (“Count
Two”) due to double jeopardy concerns, and dismissed that
count without prejudice. The Court also imposed a 20-year
term of supervised release, which included a condition
19
prohibiting Cunningham from accessing the internet during
that period except for employment purposes. 12
Cunningham timely appealed his conviction. 13
12
Specifically, that condition provided:
The defendant is permitted to possess and/or
use a computer and cell phone, however, is
prohibited from accessing the Internet through
any device. This prohibition includes using any
Internet Service Provider, bulletin board system
or any other public or private computer network
or service. If the defendant’s employment
requires the use of a computer and/or access to
the Internet, the defendant is permitted Internet
access for this limited purpose, and the
defendant shall notify the employer of the
nature of his or her conviction (charge). The
probation / pre-trial services officer shall
confirm the defendant’s compliance with this
notification requirement.
(App. at 110.)
13
On August 31, 2010, following Cunningham’s
conviction but prior to his sentencing, the Office of the Public
Defender for the Western District of Pennsylvania (“OFPD”)
moved to disqualify the District Judge from presiding over
this case and 20 other pending cases based on comments
made by the District Judge in two unrelated cases where the
OFPD served as defense counsel. Without recounting the
tortuous history of those two cases, suffice it to say that the
District Judge initially disqualified himself from
Cunningham’s case. On September 20, 2010, however, after
20
II. Discussion 14
Cunningham argues that the Court erred in both failing
to view the video excerpts before ruling on their admissibility
and in failing to exclude or limit them, given his stipulation to
their criminal content. He further contends that the Court
abused its discretion during voir dire by refusing to provide
potential jurors with more detail describing the videos that
would be presented during trial. 15 We address those
arguments in turn.
the government filed a motion for reconsideration, the
District Judge changed course and decided to continue to
preside over Cunningham’s case. On July 31, 2012, after
Cunningham appealed to us and after we heard oral argument,
the District Judge entered an order taking his original position
that recusal was warranted and directing that, if we were to
remand Cunningham’s case for a new trial or re-sentencing, it
should be assigned to another judge. In light of that order, the
recusal issue is moot.
14
The district court had jurisdiction pursuant to 18
U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742(a).
15
Cunningham also challenges the District Court’s
disqualification ruling which, as noted, is now moot. See
supra note 13. Cunningham additionally argues that the
Court plainly erred by imposing, as a condition of his 20-year
supervised release, a complete ban on internet access except
for work purposes. Since we are vacating Cunningham’s
conviction, we need not directly address that contention. We
do note, however, that the internet restriction imposed upon
Cunningham is broader than the one that we found
21
A. Admission of Video Excerpts Under Rule 403
We review a district court’s ruling to admit or exclude
evidence under an abuse of discretion standard. United States
v. Green, 617 F.3d 233, 239 (3d Cir. 2010). “An abuse of
discretion occurs only where the district court’s decision is
‘arbitrary, fanciful, or clearly unreasonable … .’” Id.
(quoting United States v. Starnes, 583 F.3d 196, 214 (3d Cir.
2009)).
1. Procedural Error
Cunningham contends that the District Court abused
its discretion when it failed to view the government’s
proposed video exhibits before ruling on their admissibility.
The government responds that the District Court had no duty
to view the video excerpts because it understood the content
and character of the excerpts that the government intended to
offer from the summary that Cunningham had provided to the
Court. 16 We agree with Cunningham that, under the
circumstances of this case, the Court abused its discretion by
admitting the videos without first viewing them.
problematic in United States v. Albertson, 645 F.3d 191 (3d
Cir. 2011), and we urge district courts, when imposing similar
conditions, “to fashion a ‘comprehensive, reasonably tailored
scheme,’” id. at 200 (quoting United States v. Miller, 594
F.3d 172, 188 (3d Cir. 2010)).
16
The government also reminds us that, prior to the
motions in limine, it had told the Court about some of the
videos in connection with Cunningham’s suppression motion.
See supra note 9.
22
While the question presented for resolution has seldom
been addressed, we find guidance in decisions from two of
our sister circuits. In United States v. Curtin, the defendant
was charged with traveling across state lines with the intent to
engage in a sexual act with a minor and using an interstate
facility to attempt to persuade a minor to engage in sexual
acts. 489 F.3d 935, 937 (9th Cir. 2007) (en banc). The only
disputed issue was whether Curtin intended to engage in sex
acts with a minor or with an adult who was pretending to be a
child having incestuous sex with her father. Id. at 938-39. To
prove Curtin’s unlawful intent, the government offered five
stories that had been found on his personal digital assistant,
all of which involved sex between fathers and their child
daughters. Id. at 942. Although Curtin objected to the
evidence as inadmissible propensity evidence under Rule
404(a), 17 the district court, without reading all of the stories,
agreed with the government that the stories in their entirety
were, with a limiting instruction, admissible under Rule
404(b). 18 Id. The district court had read two of the stories in
17
Subject to exceptions set forth in Rule 404(a)(2) and
(3), Rule 404(a)(1) provides that “[e]vidence of a person’s
character or character trait is not admissible to prove that on a
particular occasion the person acted in accordance with the
character or trait.” Fed. R. Evid. 404(a)(1).
18
Rule 404(b)(1) provides that “[e]vidence of a crime,
wrong, or other act is not admissible to prove a person’s
character in order to show that on a particular occasion the
person acted in accordance with the character.” Fed. R. Evid.
404(b)(1). However, Rule 404(b)(2) provides that evidence
otherwise inadmissible under Rule 404(b)(1) “may be
admissible for another purpose, such as proving motive,
23
full, but it had only read “snippets” of the other three and
relied on an offer of proof from the government for those
stories. Id. at 956.
The Ninth Circuit reversed, “hold[ing] as a matter of
law that a court does not properly exercise its balancing
discretion under Rule 403 when it fails to place on the scales
and personally examine and evaluate all that it must weigh”
Id. at 958. It found that “[t]he inflammatory nature and
reprehensible nature of [those] abhorrent stories, although
generally relevant, is such that a district court making a Rule
403 determination must know precisely what is in the stories
in order for its weighing discretion to be properly exercised
and entitled to deference on appeal.” Id. at 957. The Ninth
Circuit stated that “[t]he record [in Curtin] demonstrate[d]
why [that] must be the rule,” since a portion of one of the
stories that the government offered was clearly inadmissible
as it was “both irrelevant and dangerously prejudicial.” 19 Id.
The Ninth Circuit noted that “[r]elying only on the
descriptions of adversary counsel [was] insufficient to ensure
that a defendant receives the due process and fair trial to
which he is entitled under our Constitution.” Id. at 958.
Additionally, “given the depraved and patently prejudicial
opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” Fed. R. Evid.
404(b)(2).
19
Specifically, the Ninth Circuit pointed to one of the
exhibits that contained “a particularly graphic description of
[a minor female] engaged in sexual acts of mutual oral
copulation with, and masturbation of, a dog.” Curtin, 489
F.3d at 957.
24
nature of the irrelevant evidence,” the court rejected the
government’s assertion that the error was harmless. 20 Id.
20
The government argues that Curtin is
distinguishable for several reasons: because a portion of one
of the stories there was clearly inadmissible while the video
excerpts here were, in fact, clearly admissible; because the
evidence in Curtin was admitted under Rule 404(b)(2) and
thus was extrinsic to the crimes charged, whereas here the
video excerpts formed the basis of the crimes charged; and
because the district court in Curtin did not have an
understanding of all of the material in the stories, whereas
here the Court understood the nature of the video excerpts.
As we will discuss in greater detail infra, we disagree with
the government’s first contention. Regarding the second
contention, although we recognize that the evidence here was
offered to prove the mental state of the underlying crimes
charged, as opposed to being offered to prove intent under
Rule 404(b)(2), Curtin’s holding was not contingent on
whether the challenged evidence was intrinsic or extrinsic to
the crimes charged; rather, no matter the basis under which
the evidence is being offered, it held that “[o]ne cannot
evaluate in a Rule 403 context what one has not seen or read.”
Curtin, 489 F.3d at 958. We also disagree with the
government’s third assertion because the district court in
Curtin had at least read two of the five stories and had offers
of proof on the other three (albeit from adversary counsel).
Here, even though the District Court had a description of the
video excerpts from Cunningham (albeit in less detail than the
government has provided to us on appeal), the District Court
refused to watch any of the video excerpts.
25
In United States v. Loughry, the defendant was
convicted of advertising and conspiracy to advertise child
pornography, and distributing and conspiracy to distribute
child pornography through an online cache. 21 660 F.3d 965,
967-68 (7th Cir. 2011). However, Loughry was not charged
with possession of child pornography. Id. at 968. To prove
intent and motive to join the conspiracy, the government
introduced, pursuant to Rule 414, 22 evidence of photographs
and videos of child pornography found on Loughry’s home
computer. Id. at 969. Though some of the images were
similar to those posted on the online cache, other images,
classified as “hard core,” id. at 969, “were more inflammatory
and were prohibited by Cache ‘rules,’” id. at 968.
Additionally, the government did not charge Loughry with
distributing or advertising any of those images submitted into
21
In fact, the online depository was called the
“Cache.” Id. at 967. “[T]he purpose of the Cache was to
provide its members with access to child pornography
consisting of the lascivious exhibition of the genitals of minor
girls.” Id. at 968.
22
Rule 414(a) provides that, “[i]n 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). “The
term ‘child molestation’ encompasses ... the distribution,
advertising, or possession of child pornography.” Loughry,
660 F.3d at 969 (citing Rule 414(d)). “Rule 414 constitutes
an exception to the rule that evidence of prior bad acts is not
admissible to show a defendant’s propensity to commit the
offense charged.” Id.
26
evidence. Id. Nonetheless, the district court found that those
images were admissible under Rule 414, id. at 968, even
though it did not review the disputed evidence before
admitting it, id. at 970. The district court readily
acknowledged as much, stating that it was “at somewhat of a
disadvantage not knowing exactly what items and depictions
… [were] on [the] [g]overnment’s [exhibits],” but still relied
on the government’s descriptions of the contested evidence
when making its Rule 403 determination. Id.
The Seventh Circuit reversed, “emphasiz[ing] that a
district court, in exercising its discretion under Rule 403,
must carefully analyze and assess the prejudicial effect of
challenged evidence.” Id. at 971 (citations omitted). The
Seventh Circuit did make clear, however, that an exception to
reviewing contested evidence might exist in “cases where the
probative value of the evidence is so minimal that it will be
obvious to the court that the potential prejudice to the
defendant substantially outweighs any probative value the
evidence might have.” Id. (citing United States v. Gonzalez-
Flores, 418 F.3d 1093, 1098 (9th Cir. 2005) (“Where the
evidence is of very slight (if any) probative value, it’s an
abuse of discretion to admit it if there’s even a modest
likelihood of unfair prejudice or a small risk of misleading the
jury.”)). “The safest course,” the Seventh Circuit advised, “is
for the court to review the contested evidence for itself.” Id.
Applying those principles, the Loughry court held that:
The challenged videos include the kind of
highly reprehensible and offensive content that
might lead a jury to convict because it thinks
that the defendant is a bad person and deserves
punishment, regardless of whether the
27
defendant committed the charged crime. Given
the inflammatory nature of the evidence, the
district court needed to know what was in the
photographs and videos in order for it to
properly exercise its discretion under Rule 403.
Without looking at the videos for itself, the
court could not have fully assessed the potential
prejudice to Loughry and weighed it against the
evidence’s probative value.
Id. at 972. The Seventh Circuit thus held that “the district
court abused its discretion under Rule 403 when it failed to
review the challenged videos before they were admitted in
evidence.” Id.
We note that, although the challenged evidence in
Loughry did not form the basis of the underlying crimes, as
did the videos in this case, the Loughry court, like the Curtin
court, did not make a distinction between extrinsic and
intrinsic evidence. Rather, the Loughry court focused on the
inflammatory character of the evidence and concluded that
“the district court needed to know what was in the
photographs and videos in order for it to properly exercise its
discretion under Rule 403.” Id. The same rationale applies
here. Because of the deeply disgusting, inflammatory
character of the videos, the District Court “could not have
fully assessed the potential prejudice” to Cunningham “and
weighed it against the evidence’s probative value” without
looking at the video excerpts themselves. Id. Although the
Court arguably had more vivid descriptions of some of the
video excerpts than the district court did in Loughry, see id. at
972 (“Few if any, details were provided to the court when it
was deciding whether to admit the evidence.”), having those
28
descriptions should have heightened the District Court’s
awareness of the need to see the videos to assess their
prejudicial impact before it decided to admit them. 23
In sum, we find both Curtin and Loughry persuasive.
We agree that a district court should know what the
challenged evidence actually is – as opposed to what one side
or the other says it is – “in order for [the court’s] weighing
discretion to be properly exercised and entitled to deference
on appeal.” Curtin, 489 F.3d at 957. We also agree that there
may be instances where a district court can properly decline
to view challenged evidence when it is obvious to the court
that the danger of unfair prejudice from such evidence
substantially outweighs any probative value that it might
have. Loughry, 660 F.3d at 971.
Thus, we conclude that, speaking generally, a district
court should personally examine challenged evidence before
23
We emphasize that there was a stipulation in place
here establishing the criminal content of the videos, and that
too needed to be on the scales when assessing the probative
value of the videos against the danger of unfair prejudice.
See infra Part II.A.2. We do not imply that a defendant can
stipulate away the prosecution’s right to determine how to
prove its case. See Old Chief v. United States, 519 U.S. 172,
183 n.7 (1997) (noting defendant cannot establish that district
court abused its discretion “by a mere showing of some
alternative means of proof that the prosecution in its broad
discretion chose not to rely upon”). But the existence of a
stipulation of the kind in place here is a factor in the Rule 403
balancing that district courts must undertake.
29
deciding to admit it under Rule 403. 24 However, as Loughry
reflects, while that is the best course, see 660 F.3d at 971
(“The safest course, however, is for the court to review the
contested evidence for itself.”), it may be that, when a court
has been provided with a sufficiently detailed description of
the challenged evidence and decides to reject the evidence, it
need not undertake that further review. In other words, if,
after reviewing a detailed description of the evidence, it is
obvious to the court that the probative value of the evidence is
so minimal that it is substantially outweighed by the danger
of unfair prejudice, a court need not personally examine it.
See id. This ought not be seen as an invitation to freely deny
24
The type of evidence at issue will determine what
level of examination is in order. Because of the impact that
visual images may have on a jury, if that type of evidence is
challenged on Rule 403 grounds, courts should be prepared to
view it before putting it before a jury. Cf. United States v.
Martin, 746 F.2d 964, 972 (3d Cir. 1984) (citation omitted)
(“Eyewitness testimony is often dramatic and convincing, but
its effectiveness and convincing power are almost negligible
in comparison with a film or videotape of actual events.
When the videotape shows a crime actually being committed,
it simply leaves nothing more to be said.”); United States v.
Hands, 184 F.3d 1322, 1329 (11th Cir. 1999) (finding that
district court abused discretion in admitting photographs of
spousal abuse over a Rule 403 objection in part because those
“photographs impressed the fact of the domestic abuse on the
jury’s consciousness with dramatic, graphic impact, making
clear the seriousness of the incident”); United States v. Lopez-
Medina, 461 F.3d 724, 749 (6th Cir. 2006) (“Mug shots, in
particular, are highly prejudicial, and their visual impact can
leave a lasting impression on a jury.”).
30
the admission of evidence that no one of ordinary sensibilities
would want to review. Any such approach would, of course,
be out of keeping with the district court’s obligation, however
uncomfortable, to weigh the potential probative and
prejudicial impact of evidence, while considering the
legitimate interests of both the prosecution and the defense.
The video excerpts here included “the kind of highly
reprehensible and offensive content that might lead a jury to
convict because it thinks that the defendant is a bad person
and deserves punishment, regardless of whether the defendant
committed the charged crime.” Id. at 972. Although we
accord district courts broad discretion in making a Rule 403
determination, that discretion is not unfettered. “The
hackneyed expression, ‘one picture is worth a thousand
words’ fails to convey adequately the comparison between
the impact of the … portrayal of actual events upon the
viewer of the videotape and that of the spoken or written
word upon the listener or reader.” United States v. Martin,
746 F.2d 964, 971-72 (3d Cir. 1984) (citation omitted). The
District Court’s refusal here to view the video excerpts to
assess their prejudicial impact and instead, over objection,
rely only on written descriptions prior to admitting them, was
“arbitrary … [and] unreasonable.” Green, 617 F.3d at 239
(citation and internal quotations marks omitted).
2. Substantive Error
Cunningham also argues that the District Court abused
its discretion under Rule 403 by not limiting or excluding the
video excerpts. Because the government had alternative
means to present its case, including “witness testimony, still
images, shorter video clips, [his] proffered stipulations,
31
and/or the actual stipulations” (Appellant’s Reply Br. at 22),
Cunningham asserts that the probative value of the video
excerpts was substantially outweighed by the danger of their
unfair prejudice.
In the main, the government is “entitled to prove its
case free from any defendant’s option to stipulate the
evidence away.” Old Chief v. United States, 519 U.S. 172,
189 (1997). That rule “rests on good sense” because “[a]
syllogism is not a story, and a naked proposition in a
courtroom may be no match for the robust evidence that
would be used to prove it.” Id. Moreover, if the government
uses testimony or other tangible evidence to describe a series
of events, but then interrupts that pattern by “announcing a
stipulation or admission, the effect may be like saying, ‘never
mind what’s behind the door,’ and jurors may well wonder
what they are being kept from knowing,” or whether the
government is “responsible for cloaking something.” Id.
Thus, the Supreme Court has recognized that the “persuasive
power of the concrete and particular is often essential to the
capacity of jurors to satisfy the obligations that the law places
on them.” Id. at 187.
Under those well-established principles, the
government is entitled to put forward relevant evidence it
chooses to present its case. That evidence, however, remains
subject to Rule 403. As noted earlier, supra note 6, Rule 403
provides that relevant evidence may be excluded “if its
probative value is substantially outweighed by a danger of …
unfair prejudice … or needlessly presenting cumulative
evidence.” Fed. R. Evid. 403. The discretion district courts
enjoy in this regard is broad indeed. “[I]f judicial restraint is
ever desirable, it is when a Rule 403 analysis of a trial court is
32
reviewed by an appellate tribunal.” Gov’t of Virgin Islands v.
Albert, 241 F.3d 344, 347 (3d Cir. 2001) (citation and internal
quotations marks omitted); see Old Chief, 519 U.S. at 183 n.6
(noting, in the context of Rule 403, that “[i]t is important that
a reviewing court evaluate the trial court’s decision from its
perspective when it had to rule and not indulge in review by
hindsight”). However, because the District Court abused its
discretion when it decided not to watch the videos before
admitting them under Rule 403, its underlying Rule 403
determination is not entitled to the full range of deference that
we would normally give to it on appeal. See Curtin, 489 F.3d
at 957 (noting that district court must know precisely what the
evidence contains “in order for its weighing discretion to be
properly exercised and entitled to deference on appeal”). In
that light, we conclude that the District Court did not properly
exercise its discretion in admitting all of the video excerpts.
We begin our analysis by setting forth the elements of
the charged crimes that the government had to prove. Counts
One and Three were brought under 18 U.S.C. § 2252(a)(2),
which provides that “any person who … knowingly receives,
or distributes, any visual depiction … if the producing of such
visual depiction involves the use of a minor engaging in
sexually explicit conduct; and … such visual depiction is of
such conduct … shall be punished as provided in [§
2252(b)(1) 25].” 18 U.S.C. § 2252(a)(2). Count Two was
brought pursuant to 18 U.S.C. § 2252(a)(4)(B), which
25
Subject to exceptions not relevant here, 18 U.S.C.
§ 2252(b)(1) states, “[w]hoever violates … paragraph … (2)
… of subsection (a) shall be … imprisoned not less than 5
years and not more than 20 years … .” 18 U.S.C.
§ 2252(b)(1).
33
provides that “any person who … knowingly possesses …
video tapes … if the producing of such visual depiction
involves the use of a minor engaging in sexually explicit
conduct; and … such visual depiction is of such conduct …
shall be punished as provided in [§ 2252(b)(2) 26].” 18 U.S.C.
§ 2252(a)(4)(B). The parties stipulated that the videos
recovered contained “visual depictions of real children under
the age of 18 years of age engaging in sexually explicit
conduct.” (App. at 196-97.)
The government argues that the video excerpts were
“highly probative because the content of the videos verified
the accuracy of many of the lurid file names the government
had admitted into evidence,” and “they also tended to show
knowledge of the distribution, receipt and possession of child
pornography.” (Appellee’s Br. at 42.) Even with the parties’
stipulation, we recognize that showing the video excerpts here
had some probative value because they had a tendency to
show that the offender knew the videos contain child
pornography. Although Cunningham correctly argues that
the stipulation limited the probative value of those excerpts,
he cannot dictate to the government how to prove its case.
Old Chief, 519 U.S. at 183 n.7. Moreover, the agreed upon
stipulation obviously falls far short of the evidentiary impact
made by the video excerpts the government wanted to
present. See id. at 187 (speaking of the “persuasive power of
the concrete and particular[,]” and observing that “[e]vidence
… has force beyond any linear scheme of reasoning, … with
26
Subject to exceptions not relevant here, 18 U.S.C.
§ 2252(b)(2) states, “[w]hoever violates … paragraph (4) of
subsection (a) shall be … imprisoned not more than 10 years
… .” 18 U.S.C. § 2252(b)(2).
34
power not only to support conclusions but to sustain the
willingness of jurors to draw the inferences, whatever they
may be, necessary to reach an honest verdict.”)
In addition, the two separate sets of video clips each
had probative value. The first set, which formed the basis for
the distribution charge as set forth in Count Three, contained
three excerpts from three of the six videos that Erdely
recovered from the IP address registered to Cunningham’s
mother during Erdely’s undercover investigation on June 19,
2007. The second set, which formed the basis for the receipt
and possession charges as set forth in Counts One and Two,
contained four excerpts from videos that were retrieved
following the search and seizure of the computer found in
Cunningham’s bedroom on July 17, 2007. Thus, each of the
video excerpts “was derived from files charged in the
indictment; the images shown to the jury were … not
extrinsic to the crime charged ‘but rather a part of the actual
pornography possessed.’” United States v. Ganoe, 538 F.3d
1117, 1124 (9th Cir. 2008) (quoting United States v. Dodds,
347 F.3d 893, 898 (11th Cir. 2003)). 27
27
Ganoe also stated, however, that “[e]ven more
importantly [for the Rule 403 analysis], for every image
shown to the jury there was forensic evidence that the files
had actually been opened and viewed after downloading.”
538 F.3d at 1124. As Cunningham correctly notes, the
government did not prove that the images shown to the jury
had actually been opened and viewed. However, we do not
hold that such forensic evidence is required to prove that
video excerpts tend to show that a defendant knowingly
possessed, received, or distributed child pornography. See
Dodds, 347 F.3d at 899 (finding that the admission of images
35
Even though the two sets of videos were probative,
however, the law of diminishing marginal returns still
operates. The probative value of each clip was reduced by
the existence of the clips before it. Once one video excerpt
from each of the two videos was shown, the fact being proven
– i.e., that the person distributing, receiving, and possessing
that pornography would know that it contained images of real
minors engaging in sexually explicit activity – may well have
been established. As a result, after one excerpt from each
video was displayed, the probative value of the remaining
excerpts became diminished because knowledge of
distribution, receipt, and possession had already been
established in some degree by the prior video excerpts. Thus,
any of the three excerpts from the first video would have
diminished probative value if one or two of the other video
excerpts from the first video had already been shown.
Likewise, any of the four excerpts from the second video
would have diminished probative value if one or two of the
other video excerpts from the second video had already been
shown.
The question in the end, of course, is whether the
probative value of the clips shown was substantially
outweighed by the danger of unfair prejudice or the needless
presentation of cumulative evidence. See Fed. R. Evid. 403.
of child pornography tended to show that defendant knew the
images were child pornography because there was testimony
that defendant viewed adult pornography on his computer,
and thus it was reasonable for the prosecution to show that
defendant would have been aware that this was not adult
pornography). Here, there was testimony that Cunningham
had viewed both adult and child pornography.
36
As Rule 403 clarifies, a party is not protected from all
prejudice – only unfair prejudice. See Fed R. Evid. 403; see
United States v. Bergrin, 682 F.3d 261, 279 (3d Cir. 2012)
(“It must always be remembered that unfair prejudice is what
Rule 403 is meant to guard against … .”).
Here, the aggregate risk of unfair prejudice was
tremendous. Although the videos in question were not
presented to this Court, the detailed descriptions we have
received show that at least two of them should clearly have
been excluded under Rule 403. Those two video excerpts,
part of the second set of video clips, portray bondage or
actual violence. Although all of the video excerpts are
described as portraying deeply disturbing images, the
descriptions of the depraved and violent sexual acts in
Excerpt 1 and Excerpt 3 from the second video, see supra
note 11 and accompanying text, let alone the actual video
images, are enough to “generate even more intense disgust”
and cause us to conclude that the videos themselves surely
“outweigh[] any probative value they might have” as to the
charges of knowingly distributing, receiving, and possessing
child pornography. 28 Curtin, 489 F.3d at 964 (Kleinfeld, J.,
concurring); see Loughry, 660 F.3d at 974 (citing Judge
Kleinfeld’s concurrence in Curtin for the proposition that
“video excerpts shown to the jury … [of] men raping and
ejaculating in the genitals of prepubescent girls … have a
strong tendency to produce intense disgust”).
28
We claim no expertise on the psychological impact
that different types of child pornography may have on a jury,
but think common sense dictates our conclusion.
37
“While all depictions of an adult engaging in sexual
acts with a young child are bound to be repulsive, the impact
on the jury will depend upon the nature and severity of the
acts depicted.” Loughry, 660 F.3d at 972. Even in the
cesspool of evidence presented here, Excerpts 1 and 3 in the
second set of video clips stand out. We will not repeat the
description of them but note simply that their violent and
sadistic character likely created “disgust and antagonism”
toward Cunningham which risked “overwhelming prejudice”
toward him. 29 See United States v. Harvey, 991 F.2d 981,
996 (2d Cir. 1993) (admission of testimony regarding videos
“depicting bestiality and sadomasochism” created “disgust
and antagonism toward” the defendant, “and resulted in
overwhelming prejudice against him”). Without those two
videos, the government still had the entire footage of the first
29
With striking exaggeration, the government argues
that “the record reflects that the district court used ‘just about
every tool at its disposal to minimize the inflammatory nature
of the [video excerpts].’” (Appellee’s Br. at 45 (quoting
Ganoe, 538 F.3d at 1124).) Although the Court did give a
cautionary instruction before and after the videos were
played, there were a number of additional steps the Court
could have taken to reduce the risk of unfair prejudice,
including those suggested by the defense. See supra Part
I.B.1. The Court did not watch the video excerpts prior to
ruling on their admissibility and did not limit the
government’s video excerpts, except to order what the
government had already accepted, namely eliminating the
audio on the clips. Rather, the Court only hoped that the
government would abide by its representation to present the
videos in a condensed format.
38
set of videos and additional material from the second set. 30
We disagree with the government’s contention, made to the
District Court, that all of those video excerpts needed to be
shown to “fully appreciate the nature of child pornography
crimes.” (App. at 227.) Given the other available evidence,
the government did not need to show videos of pre-pubescent
children being bound, raped, and violently assaulted to prove
that Cunningham knowingly possessed, received, and
distributed child pornography. 31 In addition, the more video
excerpts were shown, the more it became a needless
presentation of unfairly prejudicial and cumulative evidence.
See Fed. R. Evid. 403.
30
It also seems clear that the government had other
evidence available to it from the child porn collection found
on the computer seized from Cunningham’s bedroom.
31
We do not hold that violent videos like these,
unspeakable though they are, would never be admissible.
There may be circumstances where it would be appropriate to
show them, given the crimes charged and the other evidence
available. We only speak in the context of this case, in which
there is ample evidence of the crimes charged without those
extraordinarily prejudicial video clips. Nor does anything we
have said here limit the government to offering at a retrial
only the evidence that was adduced at the first trial.
Likewise, nothing we have said prevents the District Court
from excluding, after it has viewed them, more videos than
the two we have discussed, if the Court, in its sound
discretion, considers exclusion to be warranted under the
Federal Rules of Evidence.
39
We recognize that a district court “is not required to
scrub the trial clean of all evidence that may have an
emotional impact.’” Ganoe, 538 F.3d at 1124 (citation and
internal quotation marks omitted). Thus, we do not hold that
the admission here of video excerpts or other images was per
se improper. Indeed, courts are in near-uniform agreement
that the admission of child pornography images or videos is
appropriate, even where the defendant has stipulated, or
offered to stipulate, that those images or videos contained
child pornography. See, e.g., United States v. Polouizzi, 564
F.3d 142, 153 (2d Cir. 2009); United States v. Schene, 543
F.3d 627, 643 (10th Cir. 2008); Ganoe, 538 F.3d at 1123-24;
United States v. Morales-Aldahondo, 524 F.3d 115, 120 (1st
Cir. 2008); United States v. Sewell, 457 F.3d 841, 844 (8th
Cir. 2006); Dodds, 347 F.3d at 898-99. We also decline to
adopt a bright-line rule on the number of video excerpts that
can be shown or on the maximum length of time that video
excerpts can last. However, in light of the content of the
videos besides the bondage clips, the probative value of those
two violent excerpts was extremely limited. Accordingly,
this is a case where we can confidently say that the probative
value of some of the video excerpts was “so minimal that it
[was] obvious … that the potential prejudice to the defendant
substantially outweigh[ed] any probative value that [they]
might have.” Loughry, 660 F.3d at 971 (citation omitted).
Therefore, the Court abused its discretion in admitting the
bondage videos.
The government argues that the District Court’s errors
do not require us to vacate Cunningham’s conviction,
contending that any error in admitting the video excerpts was
harmless. “The test for harmless error is whether it is ‘highly
probable that the error did not contribute to the judgment.’”
40
United States v. Vosburgh, 602 F.3d 512, 540 (3d Cir. 2010)
(quoting United States v. Dispoz-O-Plastics, Inc., 172 F.3d
275, 286 (3d Cir. 1999)). “This ‘[h]igh probability’ requires
that the court possess a ‘sure conviction that the error did not
prejudice the defendant.’” Id. (alteration in original) (quoting
Dispoz-O-Plastics, Inc., 172 F.3d at 286). “Here, given the
depraved and patently prejudicial nature” of at least two of
the video excerpts, Curtin, 489 F.3d at 958, we do not have a
sure conviction that the erroneous admission of those two
excerpts did not prejudice Cunningham.
It is difficult to divorce the procedural error from the
substantive error in this case. Procedural error often begets
substantive error, and we believe that the substantive error of
admitting all of the video excerpts here was prompted by the
procedural error of failing to review those excerpts prior to
ruling on their admissibility. Cf. United States v. Goff, 501
F.3d 250, 256 (3d Cir. 2007) (noting, in the sentencing
context, that the substantive problems in the district court’s
opinion “[were] a product of the [d]istrict [c]ourt’s
procedurally flawed approach,” and by “disregarding
[sentencing] procedures, the [d]istrict [c]ourt put at risk the
substantive reasonableness of any decision it reached”).
Unless “the probative value of the evidence is so minimal that
it will be obvious to the court that the potential prejudice to
the defendant substantially outweighs any probative value the
evidence might have,” Loughry, 660 F.3d at 871 (citation
omitted), district courts should take the procedural step of
personally examining disputed evidence in a case like this,
prior to making a Rule 403 determination to admit the
evidence.
41
B. Voir Dire
Cunningham also argues that the District Court abused
its discretion during voir dire by failing to publish the video
excerpts to potential jurors that would be played during trial,
or otherwise failing to inform them that there would be video
excerpts shown of young children being sexually assaulted.
Specifically, Cunningham claims that the District Court’s
questions during voir dire were too general for potential
jurors to understand the “unfathomable nature of the evidence
that would be presented at trial,” and thus “any assurances of
impartiality” given by potential jurors were “uninformed and
unreliable in violation of [his] Sixth Amendment right to be
tried by an impartial jury.” (Appellant’s Opening Br. at 106.)
Although we reject Cunningham’s assertion that the video
excerpts to be shown at trial had to be played to all potential
jurors during voir dire, his assertion that more information
about the videos should have been provided to potential jurors
does warrant further discussion.
One of the purposes of voir dire is to “enabl[e] the
court to select an impartial jury,” Mu’Min v. Virginia, 500
U.S. 415, 431 (1991), a purpose that implicates the Sixth
Amendment, United States v. Martinez-Salazar, 528 U.S.
304, 311 (2000). Although the Sixth Amendment guarantees
the right to be tried “by an impartial jury,” U.S. Const.
amend. VI, “the adequacy of voir dire is not easily subject to
appellate review,” Rosales-Lopez v. United States, 451 U.S.
182, 188 (1981). “We review [a] district court’s conduct of
voir dire for abuse of discretion.” Butler v. City of Camden,
City Hall, 352 F.3d 811, 814 n.4 (3d Cir. 2003).
42
A district court’s function during voir dire “is not
unlike that of the jurors later on in the trial. Both must reach
conclusions as to impartiality and credibility by relying on
their own evaluations of demeanor evidence and of responses
to questions.” Rosales-Lopez, 451 U.S. at 188 (citations
omitted). “In neither instance can an appellate court easily
second-guess the conclusions of the decision-maker who
heard and observed the witnesses.” Id. “Because the
obligation to impanel an impartial jury lies in the first
instance with the trial judge, and because he must rely largely
on his immediate perceptions, federal judges have been
accorded ample discretion in determining how best to conduct
the voir dire.” Id. at 189.
Here, the District Court asked jurors about whether
they could be fair and impartial in a case that involved child
pornography, specifically informing them that they would be
“shown child pornography including graphic images and hear
descriptions of computer files and offensive file names which
w[ould] certainly be disturbing to most if not all of [them].”
(App. at 302-03.) After providing that warning, several
potential jurors indicated that they may not be able to be fair
and impartial, and those potential jurors were excused for
cause.
Cunningham argues that the average person does not
fully understand that child pornography may consist of videos
of sexual abuse involving prepubescent children, and thus
would not understand the nature of the child pornography in
the video excerpts that were eventually shown at trial. To
support that claim, Cunningham points to the fact that a few
potential jurors were excused for cause during individual
sidebar conferences only after receiving more detailed
43
descriptions of the videos that would be played at trial. We
do not think that fact undermines the effectiveness of the voir
dire, however. While more detail may have been useful, the
District Court’s decision to not provide more graphic
information to the entire pool of potential jurors was not an
abuse of discretion. Without minimizing the importance of
removing the possibility of bias from a jury, we refrain from
“second-guess[ing] the conclusions of the decision-maker,”
Rosales-Lopez, 451 U.S. at 189, especially in light of the
clear instructions the District Court provided about the
graphic nature of the child pornography to be shown. On
remand, “accord[ing] ample discretion” to the District Court
“in determining how best to conduct the voir dire,” id. at 188,
we leave it to that Court to determine if more detailed
information about the case would be advisable to ensure a fair
and impartial jury.
III. Conclusion
The District Court abused its discretion by failing to
view the video excerpts before ruling them admissible. That
lapse in proper procedure produced the substantive error of
presenting to the jury evidence which bore the danger of
unfair prejudice that substantially outweighed any probative
value. Those errors were not harmless and we will therefore
vacate the judgment of the District Court and remand for a
new trial. 32 On remand, unless the Court determines that,
considering the potential of unfair prejudice, the probative
value of a proposed video excerpt is so minimal that it need
32
Given the District Court’s July 31, 2012 order, see
supra note 13, we will direct the Chief Judge of the District
Court to reassign this matter.
44
not watch that excerpt, the Court must view the proposed
video excerpts to not only assess their probative value and
potential for unfair prejudicial impact but also to
appropriately evaluate their admissibility in light of Rule
403’s concern with redundancy.
45