914 F.3d 596
8th Cir.2019Background
- In November 2015 FBI agents executed a search warrant at Chavez Spotted Horse’s residence on the Standing Rock Reservation and seized multiple computers and digital media; forensic imaging found 1,044 images, 246 of which were child pornography, including images from known series.
- A forensic expert testified about the laptop’s RAID configuration, imaging of drives, how files could be stored or lost in RAID, and opined some images were placed on the drives after RAID was created.
- Spotted Horse voluntarily admitted in a recorded interview that he viewed child pornography multiple times per month for several years, used Tor and wiping software to conceal activities, and identified the computers he used.
- At trial the government introduced the expert’s testimony, Spotted Horse’s recorded interview, and 14 exemplar images; the jury convicted on receipt and possession counts, and the court later dismissed the possession count before sentencing; Spotted Horse was sentenced to 78 months for receipt.
- On appeal Spotted Horse challenged (1) denial of a mistrial for alleged Rule 16 deviations and a prosecutor remark about a defense expert, (2) admission of expert testimony beyond the Rule 16 notice (including reliance on the interview transcript and age identification from a known series), and (3) the district court’s refusal to replace a juror who cried during publication of images.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether expert testimony exceeded Rule 16 notice (timing/storage of files and RAID opinions) | Testimony was outside the disclosed expert scope and prejudicial | Expert topics fell within broad Rule 16 notice about storage, timestamps, wiping, and examination of media | Court held testimony was within notice; no Rule 16 violation and no abuse of discretion |
| Whether expert’s statement that she reviewed the defendant’s interview transcript violated Rule 16 / was prejudicial | Disclosure that expert reviewed interview transcript and prosecutor’s comment that defense expert consulted gov’t expert prejudiced jury and warranted mistrial | Rule 16 does not require listing every document the expert reviewed; transcript corroborated, recording was admitted, and the fleeting comment caused no prejudice | Court held no Rule 16 violation; denial of mistrial not an abuse of discretion; plain-error review of comment found no prejudice |
| Whether expert could testify the identified child in a known series was 10–11 years old | Testimony about age was beyond notice | Notice included recognition of known series and use of NCMEC; age identification fell within that scope | Court held testimony was within Rule 16 notice; admissible |
| Whether trial court abused discretion by refusing to replace a juror who cried during presentation of images | Emotional reaction undermined impartiality and warranted seating an alternate | Emotional reaction alone does not show inability to be impartial; juror affirmed they could continue; judge observed demeanor | Court held district court did not abuse its discretion in retaining the juror |
Key Cases Cited
- United States v. Kopecky, 891 F.3d 340 (8th Cir.) (standard for reviewing mistrial denial)
- United States v. Beeks, 224 F.3d 741 (8th Cir.) (review of mistrial and evidentiary rulings)
- Chism v. CNH Am. LLC, 638 F.3d 637 (8th Cir.) (abuse of discretion and plain-error standards for evidentiary rulings)
- United States v. Summage, 575 F.3d 864 (8th Cir.) (reversal standard for evidentiary rulings affecting substantial rights)
- United States v. Dale, 614 F.3d 942 (8th Cir.) (standard for replacing a juror with an alternate)
- United States v. Marchant, 774 F.2d 888 (8th Cir.) (juror tears alone do not demonstrate incompetency)
- United States v. Farrell, 563 F.3d 364 (8th Cir.) (plain error review parameters)