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Media Alerts - United States v. McElmurry - Ninth Circuit
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March 4, 2015
  United States v. McElmurry - Ninth Circuit
Headline: Ninth Circuit vacated and remanded defendant's criminal conviction for possessing and distributing child pornography, even though defendant was not subjected to double jeopardy.

Area(s) of Law: Constitutional Law; Evidence

Issue(s) Presented: 1) Whether charges of possession of child pornography and distribution of child pornography constitute double jeopardy when the charges are based on the same images. 2) Whether there is sufficient evidence to convict for distribution of child pornography without showing defendant had an active role in the distribution. 3) Whether the government violated Rule 403 of the Federal Rules of Evidence when the prosecution introduced highly prejudicial evidence at trial showing McElmurry bragged to another inmate that prosecutors would never find the vast majority of child pornography images McElmurry had in his possession as well as evidence McElmurry had been looking at child pornography since he was fifteen years old. 4) Whether McElmurry waived his objection to this evidence when his in limine objection was not renewed at trial.

Brief Summary: Circumstantial evidence linked McElmurry to a computer, which was used to share child pornography on an online service. Although the computer files were encrypted, it was inferred that the images used to convict McElmurry for possession and distribution of child pornography were located on this computer.

McElmurry argued that possession of child pornography is a lesser-included offense of distribution, so the prosecution, by using the same images to convict him of both charges, subjected McElmurry to double jeopardy. The court disagreed, finding that decisions, which held possession and receiving child pornography to be double jeopardy, were distinguishable from this case, for while it is impossible to receive something without possessing it, it is possible to both possess and distribute independently of each other. Since the proof of one charge is separate from the proof of the other, it was not double jeopardy to find McElmurry guilty of both charges based on the same images.

McElmurry also argued the sufficiency of the evidence was not enough to support a conviction for distribution, since he did not actively distribute the pornographic images. Instead, on-line users downloaded the images themselves. The court found McElmurry had already conceded that file sharing constitutes distribution, when the owner of the file can allow or deny access to others of the images in the file.

The court did find that McElmurry preserved his Rule 403 objection to unduly prejudicial evidence the prosecution had succeeded in introducing at trial. This was because even though the defenses' objections were not specific, it was because the prosecution did not proffer specific evidence before the judge changed his tentative ruling allowing the evidence into a definitive ruling. Therefore, the objection was preserved under Rule 103(b).

The court also found the judge erroneously allowed the evidence into trial, since the judge balanced the evidence under Rule 403 based on the prosecutions' representation of the character of the evidence, without an actual review of the evidence, prior to making the ruling. Lastly, the prosecution did not even attempt to fulfill its burden of showing harmless error in admitting this evidence. Instead, the prosecution emphasized the importance of the evidence to their case at trial.

Extended Summary: FBI agents used the identity of a member of an online file-sharing group known as "GigaTribe" to track down possessors and sharers of child pornography. They downloaded many images and videos from a "GigaTribe" user known as "TeenTrade." The agents were able to track the IP address to McElmurry's grandmother's house, which McElmurry often frequented. They obtained a search warrant, which the agents executed while McElmurry was at the home.

"TeenTrade" was online and active when the agents first entered the home, but the minute one of the three computers present at the residence was unplugged, extensive downloads from "TeenTrade" stopped. From this, the government inferred that this computer had extensive amounts of child pornography on it, even though the files were fully encrypted and not accessible by forensic analysis.

Further, circumstantial evidence suggested that McElmurry was Teentrade, as McElmurry's soft drink can was right by the computer in question, and the screen saver on this computer had the name "Super Dave" on it (McElmurry's first name is David). Based on these inferences, the government was able to convict McElmurry of one charge of possession of child pornography and one charge of distribution of child pornography.

McElmurry appealed on the grounds that (1) his two convictions were based on the same evidence which subjected him to double-jeopardy; (2) there was insufficient evidence to support his conviction for distribution; (3) the trial judge should have excluded some evidence under Federal Rules of Evidence 403, as the probative value of this evidence was substantially outweighed by the danger of substantial prejudice; and lastly (4) the defense did not waive their objection to this evidence by not renewing it at trial.

McElmurry argued that his convictions for possession and distribution of child pornography stemmed from the same images. Therefore this amounted to double jeopardy. He further argued the charge of possession is a lesser-included offense of distribution.

The panel reviewed this using the standard of "plain error," as this issue was not raised at trial. However, this standard did not affect their analysis, and did not save the convictions on that basis. This was because the court had controlling precedent in which convictions for receiving and for possessing child pornography stemming from the same images had been held to constitute double jeopardy. The court reasoned that if the defenses' theory were held to be correct, double jeopardy would require at least one conviction to be vacated on remand without the possibility of re-trial.

McElmurry relied on Blockberger v. United States, (under the "same-elements test" receiving necessarily involves possessing), and Davenport, (it is impossible to receive something without, at least for an instant, possessing it). In the cases on which McElmurry relied, possession was found to be a lesser-included offense of receiving child pornography. The Blockberger test of whether the same act constitutes a violation of two separate provisions is "whether each provision requires a proof which the other does not." However, the court distinguished these cases, as McElmurry's convictions were for possession and distribution, not possession and receiving. Unlike receiving, which requires possession at least at the moment of receipt, distribution does not. A distributor can act as a middle-man, and put two parties together so as to arrange distribution of contraband from one to another without ever being physically in possession of the material himself. A possessor of child pornography may choose not to share, and a distributor does not need to possess these images. Each count requires separate proof and therefore one charge is not a lesser-included charge of the other.

McElmurry also argued for a judgment of acquittal on the distribution charge since he did not actively do anything to cause the distribution of these images. The images were on a file-sharing program, and it was the FBI agent's actions (in pushing a button) that caused the download, and hence the image transfer. However, McElmurry conceded the court had already held in Budziak that maintaining child pornographic images in a shared folder so as to enable others to download, which others in fact do download, constitutes sufficient evidence of distribution. Testimony at trial showed McElmurry shared images in a GigaTribe folder, which was only accessible if the owner of the folder gave another user permission to access images in this folder. The court held this was sufficient to prove distribution.

The Rule 403 issue was more troubling to the panel. The prosecution did not merely attempt to prove the acts for which McElmurry was charged. Instead, the prosecution used statements McElmurry made to investigators four years earlier in an interview they conducted in connection with a state conviction for child pornography. In the interview, McElmurry admitted he had been looking at child pornography daily since he was fifteen years old, and that he traded images with others. The prosecution also presented a letter McElmurry had sent to an inmate that he knew from an earlier incarceration, which was written just prior to McElmurry being charged for the current offenses. In the letter, McElmurry called police, investigators, prosecutors, etc., a variety of derogatory names, and bragged that they would never find the vast majority of pornographic images he possessed.

Although McElmurry strenuously argued against admission of this evidence in limine, the prosecution argued for its admissibility as proof of "knowledge," and "lack of mistake." The prosecution argued this evidence was necessary to show that McElmurry knew the images were on the computer, he knew how to encrypt, and this evidence was necessary to counter a reasonable doubt McElmurry might raise that the images actually belonged to his mother or grandmother. The prosecution, as appellee, also made an argument in its brief that the evidence was admissible under Rule 414, Similar Crimes in Sexual-Assault Cases. However, the court chose not to address this argument since it had not been raised at trial, and the evidence still would have been weighed under Rule 403 anyway.

McElmurry, on the other hand, argued this evidence would be used to show a propensity to commit crimes involving child pornography, forbidden under Rule 404(a), and the probative value of this evidence was substantially outweighed by the danger of unfair prejudice under Rule 403.

The prosecution argued that McElmurry did not preserve his objection to admission of this evidence in limine, so it was waived. The court explained that the purpose of in limine resolutions was to enable planning and prevent interruptions at trial, and that arguing and losing in limine sufficed to preserve it. "[A]n objection to what the court had already ruled unobjectionable would have amounted to taking exception to an evidentiary ruling already made which, which Federal Rule of Evidence 103 says is unneccesary."

The partial dissenting opinion complained that the defenses' objection was not definitive, as it was not specific enough. The trial judge in limine tentatively allowed the evidence in question to be used at trial, subject to the prosecution providing a foundation later. But the Judge then interrupted himself in a discussion of another matter to make the ruling definitive before this occurred. Under United States v. Varela-Rivera, it was held that when the government fails to state clearly and precisely what evidence it will offer, it is not necessary for the defense to state clearly and precisely what evidence it is objecting to. Therefore, in light of the fact the trial judge interrupted himself in another matter to change his tentative ruling to a definitive ruling, the defenses' objection was as clear as it could be, and was therefore preserved on appeal.

The court held that evidence which the prosecution seeks to be used for a proper 404(b) reason such as to demonstrate knowledge, or lack of mistake must still be weighed using the 403 test, where the probative value must substantially outweigh the danger of unfair prejudice in order for the evidence to be admissible. In order properly analyze evidence, the trial judge must look at the specific reason the evidence is proffered, and then determine whether this reason is an element of the crime or crimes being charged. Then the evidence itself must be weighed under Rule 403, reliance on the characterization of the evidence by others is not enough. Every word must be read and analyzed, as a trial court cannot adequately judge whether words it has not heard or read will be unduly prejudicial. Here, the court found the trial judge had not read or heard the words offered as evidence before he made his ruling, which allowed them to be introduced at trial. The judge did not say he read them, the record did not show he read them, and the government confirmed the judge had not read them.

The court also held that the government did not bear its burden of proof that the error was harmless, which is ordinarily the next step in the analysis. This would have been hard to prove, as the first thing the prosecutor said at trial was "n his own words, the defendant, David McElmurry, is addicted to child pornography." Rather, the government attempted to prove the importance rather than the marginality of the evidence. This is irrelevant in a 403 determination.

For the full opinion:

Panel: Stephen Reinhardt, Andrew J. Kleinfeld, and Morgan Christen, Circuit Judges.

Date of Issued Opinion: January 26, 2015

Docket Number: 12-50183

Decided: Vacated and remanded

Case Alert Author: Michael Zatlin

Counsel: John Balazs, Sacramento, California, for Defendant - Appellant, Alessandra P. Serano, Assistant United States Attorney, San Diego, California, for Plaintiff - Appellee

Author of Opinion: Judge Kleinfeld, partial concurrence and partial dissent by Judge Christen

Case Alert Circuit Supervisor: Professor Ryan T. Williams

    Posted By: Ryan Williams @ 03/04/2015 01:49 PM     9th Circuit  

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