United States v. David McElmurry
776 F.3d 1061
| 9th Cir. | 2015Background
- FBI infiltrated a GigaTribe file‑sharing account named “Teentrade,” downloaded child‑pornography files, and traced the account’s IP to a house McElmurry frequented (his mother and grandmother lived there).
- Agents executed a search warrant while Teentrade was online, seized three computers, and determined the desktop’s unplugging stopped the Teentrade downloads; the desktop was encrypted and contained indicia linking it to McElmurry.
- McElmurry was tried and convicted on two counts: possession of child pornography (18 U.S.C. § 2252(a)(4)(B)) and distribution of child pornography (18 U.S.C. § 2252(a)(2)).
- The government introduced prior‑bad‑acts evidence: excerpts of a recorded 2006 interview (involving a prior state conviction and admissions about long‑standing use, trading, and encryption) and a 2010 letter to an inmate referencing encryption and his collection.
- McElmurry objected under Rules 403 and 404(b); the district court admitted the prior statements and letter. On appeal the Ninth Circuit addressed (1) double jeopardy, (2) sufficiency of distribution evidence, and (3) admissibility under Rule 403.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Double jeopardy (possession vs. distribution) | Government: possession and distribution are distinct offenses requiring different elements. | McElmurry: possession is a lesser‑included offense of distribution (like possession vs. receipt). | Convictions for possession and distribution of the same images do not violate double jeopardy; each crime requires proof the other does not. |
| Sufficiency of evidence for distribution | Government: maintaining files in a shared folder that others can download constitutes distribution. | McElmurry: FBI agent, not defendant, performed the actual download; he took no affirmative act to distribute. | Affirmed: under Budziak, sharing via peer‑to‑peer with a shared folder is sufficient to prove distribution even if an agent performed the download. |
| Rule 403 admissibility of prior interview and letter | Government: prior interview and letter prove knowledge, encryption skill, identity of user, and absence of mistake. | McElmurry: evidence is prejudicial propensity evidence; probative value is substantially outweighed by unfair prejudice; district court did not properly review materials. | Reversed and remanded: district court abused discretion by ruling without actually reviewing the materials; under Curtin/Waters it must read/listen to challenged material before doing the 403 balancing. |
| Preservation of Rule 403 objection | Government: defendant waived by not renewing objection at trial. | McElmurry: in‑limine objections and the court’s definitive pretrial ruling preserved the objection. | Majority: objection preserved; district court’s definitive in‑limine ruling meant no renewal needed. (Concurrence/dissent disagrees re: letter—would review plain error.) |
Key Cases Cited
- Blockburger v. United States, 284 U.S. 299 (establishes the same‑elements test for double jeopardy)
- United States v. Davenport, 519 F.3d 940 (9th Cir.) (receipt vs. possession analysis in child‑pornography cases)
- United States v. Curtin, 489 F.3d 935 (9th Cir. en banc) (district court must read every word of inflammatory material before Rule 403 balancing)
- United States v. Waters, 627 F.3d 345 (9th Cir.) (extended Curtin reading requirement; court must review challenged materials)
- United States v. Budziak, 697 F.3d 1105 (9th Cir.) (maintaining shared folder on file‑sharing network can constitute distribution)
- United States v. Mincoff, 574 F.3d 1186 (9th Cir.) (possession not an element of distribution in narcotics context)
- United States v. Varela‑Rivera, 279 F.3d 1174 (9th Cir.) (pretrial definitive rulings preserve objections for appeal)
- United States v. LeMay, 260 F.3d 1018 (9th Cir.) (Rule 414 evidence still subject to Rule 403 scrutiny)