UNITED STATES of America, Plaintiff-Appellee, v. David McELMURRY, Defendant-Appellant.
No. 12-50183.
United States Court of Appeals, Ninth Circuit.
Filed Jan. 26, 2015.
776 F.3d 1061
Argued and Submitted Oct. 7, 2013.
REVERSED in part, VACATED in part, and REMANDED.
Alessandra P. Serano, Assistant United States Attorney, San Diego, CA, for Plaintiff-Appellee.
Before: STEPHEN REINHARDT, ANDREW J. KLEINFELD, and MORGAN CHRISTEN, Circuit Judges.
OPINION
KLEINFELD, Senior Circuit Judge:
We address double jeopardy and evidentiary issues in a child pornography case.
Facts
FBI agents used the identity of a member of an online file-sharing group, “GigaTribe,” to find possessors and sharers of child pornography. They downloaded a large number of such images and videos from a GigaTribe user who called himself “Teentrade.” They tracked the IP address of Teentrade to a house where McElmurry‘s mother and grandmother lived and which McElmurry frequented. After getting a search warrant, they waited until they saw that Teentrade was online, and knocked on the door. They pretended there was a package McElmurry had to sign for, to draw him away from the computers in hopes that he would not have time to delete or encrypt the data. Once McElmurry got to the door, the agents executed the search warrant.
The FBI agents located and seized three computers, two because they did not have the passwords. The agents were still able to connect to Teentrade online from their own devices. To figure out which computer, if any, was associated with Teentrade, they disconnected one computer at a time. When the agents unplugged the desktop computer, the downloads from Teentrade immediately stopped. After forensic analysis, the FBI agents still could not access data on the desktop because it was entirely encrypted. But based on what appeared to be McElmurry‘s soft drink by the desktop computer, the extensive downloads from Teentrade, the online presence of Teentrade at the moment before they knocked, and the name “Super Dave” on the desktop screen saver (McElmurry‘s
McElmurry was charged in two counts, one for possessing child pornography,1 one for distributing it.2 Having been convicted in a jury trial, he appeals on the grounds discussed below. We have jurisdiction over this direct appeal under
Analysis
I. Double Jeopardy
McElmurry argues that convicting him of two crimes, possessing child pornography and also distributing it, amounts to double jeopardy. His theory is that both counts involved the same images, and that possession is a lesser-included offense of distribution.
Since the double jeopardy issue was not raised in district court, we review for plain error,3 but the standard of review does not in this case affect the analysis. We have controlling precedents in which we have concluded that convictions for both receiving and possessing such images did indeed violate the Double Jeopardy Clause, despite applicability of the plain error standard, so the standard does not save the convictions.4 And because double jeopardy would require at least one conviction to be vacated on remand, without the possibility of retrial,5 we address this issue first.
McElmurry relies on three decisions6 in which we have held that separate convictions and sentencing for receiving and possessing do indeed violate the Double Jeopardy Clause where the convictions are predicated on the same images. The theory of all these cases is that under the Blockburger v. United States “same elements” test,7 receiving necessarily includes
This case is distinguishable because McElmurry‘s convictions are for possessing and distributing, not possessing and receiving. The question this case raises is whether the distinction makes a difference. We conclude that it does.
The Blockburger test, “where the same act or transaction constitutes a violation of two distinct statutory provisions, ... is whether each provision requires proof of a fact which the other does not.”9 Where the charges are receiving and possessing, the statutes do not each require such proof, because receiving means taking into one‘s possession, and therefore implies possession at least at the moment of receipt.10 Not so for distribution. Suppose Tom, Dick and Harry are involved. Tom asks Dick for a prohibited image. Dick says, “I don‘t have it, but Harry does, and I‘ll ask him to send it to you.” Dick does not possess,11 but nevertheless distributes, because he brought about Harry‘s distribution. One statute says “knowingly possesses,”12 the other says “knowingly ... distributes,”13 and either crime can be accomplished without the other. Each crime requires proof of a fact that the other does not, possession for one and distribution for the other. A possessor of prohibited images may choose not to share,14 and a distributor, as in the Tom, Dick and Harry hypothetical, need not himself possess them.15 For another sort of contraband, narcotics, we held in Mincoff that possession is not an element of distribution,16 and the same principle applies to the type of contraband at issue here. One need not even have constructive possession to be a distributor. Dick, in the hypothetical, does not need “dominion and control”17 over Harry‘s image to
II. Sufficiency of Evidence
McElmurry moved for a judgment of acquittal because he did not actively do anything to distribute the images that were used to prove his crime. The government proved distribution with the images one of the agents had downloaded from the “Teentrade” account. The account was on a file-sharing program, so the only person who had to press a button to transfer an image was the FBI agent. The FBI agent downloaded, McElmurry did not upload or email the images.
McElmurry concedes, however, that we have already held in Budziak that conduct such as his constitutes distribution,19 and he merely wishes to preserve the issue. Budziak holds that maintaining child pornography in a shared folder, knowing that doing so will enable others to download it, if another person does download it, amounts to sufficient evidence to sustain a conviction for distributing the child pornography.20
The testimony at McElmurry‘s trial sufficed to show distribution under Budziak. The evidence was that sharing through GigaTribe could only be accomplished if the owner of the shared folder permitted it for a particular user, and an FBI agent impersonating one of McElmurry‘s permitted users downloaded contraband images from McElmurry‘s Teentrade account.
III. Rule 403
McElmurry raises a more troubling issue under
Federal agents recorded an interview with McElmurry in 2006, and the portions helpful to the prosecution were played for the jury. As the interview went on, McElmurry admitted that he had been looking at child pornography since he was 15-years-old (he was 30 at the time of the interview), looked at child pornography daily, traded images with people, and was indeed probably addicted to child pornography. McElmurry admitted in the 2006 interview that his pornography collection was around 40 or 50 gigabytes and included images of children as young as babies and images of bondage using children.
The government also provided the jury with a letter McElmurry had written to a prison inmate he evidently knew from his imprisonment for his 2006 crime. The letter calls the police, probation officers and other authorities a series of obscene and
McElmurry strenuously objected to this material in an in limine motion and in arguments on his and the government‘s in limine motions addressing admissibility of evidence.21 The government argued that the material should come in to prove “knowledge” and “lack of mistake.” Its theory was that the 2006 material would prove that McElmurry knew the images downloaded by the FBI were on the computer, the reference to encryption would prove that he knew how to encrypt, and both would tend to prove that he was the user of the computer linked to Teentrade. McElmurry had lived in the house but no longer did. The government purported to be concerned that he would raise a reasonable doubt about whether his 68-year-old mother or 104-year-old grandmother, still living in the house, were responsible for the child pornography, not him. McElmurry argued that the 2006 interview was evidence of propensity to commit child pornography crimes rather than of one of the legitimate
The district court ruled that the probative value was not substantially outweighed by the danger of unfair prejudice, and overruled the
Our disagreement with our dissenting colleague is limited to the narrow question of whether the district court‘s ruling on the in limine objection was “definitive.” We are agreed that under
Much of the argumentation in this case, and in the district court‘s evaluation, focuses on
We addressed how the
The right way to rule on such evidence, we held, is first for the government to “identify the specific purpose or purposes” for which admission was sought under
The district court must “read every word” of what will be before the jury. The district court cannot very well decide that words it has not read or heard will not be unduly prejudicial, because the court does not know what the words will be, and a prosecutor‘s offer of proof about the words will not suffice.
We faced similar issues in United States v. Waters, albeit about radical environmentalists burning down buildings rather than about sex, and the admission of anarchist literature to prove the acts charged.40 In Waters, the district court admitted a folder of articles the defendant had apparently given to an alleged co-conspirator. The record did not establish as unambiguously as in Curtin that the district judge had not read the material. But the judge did not say he had read them, the record suggested that the court made its ruling before they were provided for reading, and at oral argument the government confirmed what the record suggested, that the district judge had not read them.41
In this case, as in Waters, the judge did not say in so many words that he had not read the material, but the record, briefs and oral argument appear to establish that he did not. The government‘s motion in limine did not attach a transcript or copy of the 2006 interview clips or the 2010 letter. The judge could not listen to or read the interview and read the letter if he did not have them, and it appears from the record that the prosecutor did not submit them to the court prior to the in limine
Defense counsel also objected to the letter to the inmate on the grounds that it was not relevant, was improper propensity evidence, lacked foundation, and was more prejudicial than probative. At the hearing, defense counsel asked what evidence the government sought to introduce, and for what purpose. The prosecutor replied that she had turned over to defense counsel a disc full of letters McElmurry wrote,43 mentioning encryption and the type of material he has, which, she contended went to prove that the computer was his, not his mother‘s or grandmother‘s.44 She said she would have her exhibits in order the Friday before trial and defense counsel could then come over to her office and look at them. The judge confirmed his
Appellant‘s brief argues that we must reverse under Curtin because the district court had not read the material when it ruled, and relied merely on the proffer. Although McElmurry‘s brief discusses Curtin in five places, the government‘s brief does not discuss or even cite it, and offers no argument that the district court proceeded correctly despite Curtin. At oral argument, government counsel conceded that the district court had not read the inmate letter before admitting it and did not review the 2006 interview clips published to the jury before admitting them. Thus, as in Waters, the record, briefs and argument establish that the district court admitted the evidence without reading it or listening to it.
In Waters, we reversed under Curtin because the district court had not read the anarchist articles submitted as evidence before ruling for the prosecution on the
Ordinarily the next step of our analysis would be deciding whether the government successfully bore its burden of proof that the error in admitting the evidence was harmless.49 That would be a hard argument to make. The first thing the prosecutor said, even before stating his name, was that, “In his own words, the defendant, David McElmurry, is addicted to child pornography.” That line came from the 2006 interview. In closing argument, the prosecutor played clips from the 2006 interview, and emphasized that “for half his life, [McElmurry] had been interested in viewing child pornography. Half his life. He admitted that he was addicted.” An “addiction,” of course, implies something that an individual cannot stop doing. Another clip from the interview was played, prompting the prosecutor to conclude: “He likes all sorts of child pornography, including images involving babies.”
The government in this case does not attempt to argue harmless error. The government‘s position appears to have been that the evidence was needed to show that McElmurry knew what was on the computer and had encrypted it, in order to prove that what the FBI agent had downloaded came from McElmurry and not his 68-year-old mother or his 104-year-old
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McElmurry makes several additional arguments. First, he argues that the district court abused its discretion when it admitted the 2006 interview clips, the letter to the inmate, and the facts he admitted in his plea agreement for the 2006 crime, because the danger of unfair prejudice substantially outweighs their probative value. He also argues that this evidence was improper propensity evidence under
Since we reverse on 403 error and do not decide on 404 error, the district court will have to analyze the evidence under both rules, with knowledge of what the evidence is. If the government makes a
Because we reverse and remand for 403 error, we need not reach McElmurry‘s argument that the government committed misconduct during opening and closing arguments by emphasizing the disputed evidence.
Conclusion
Convictions for possessing child pornography and distributing the same child pornography do not amount to double jeopardy. Sharing the child pornography through a peer-to-peer network amounts to distribution, even though the distributor does not take some concrete affirmative action for the particular download that is charged as the distribution. The Curtin-Waters error compels reversal. A district court cannot properly exercise its discretion to decide whether the probative value of evidence objected to under
The judgment is VACATED and this case is REMANDED for further proceedings consistent with this opinion.
CHRISTEN, Circuit Judge, concurring in part and dissenting in part:
I concur in Parts I and II of the majority opinion. McElmurry‘s convictions for distributing and possessing child pornography do not violate double jeopardy, and the district court correctly denied McElmurry‘s motion for a judgment of acquittal on the distribution charge. I also concur in Part III of the majority opinion with respect to the 2006 interview statements. Under United States v. Curtin, 489 F.3d 935 (9th Cir.2007) (en banc), and United States v. Waters, 627 F.3d 345 (9th Cir.2010), the district court erred by making a
The defendants in both Curtin and Waters objected at trial under
During execution of the search warrant at McElmurry‘s mother‘s house, FBI agents seized several items, one of which was a “disc full of typed letters that Mr. McElmurry wrote.” McElmurry‘s pretrial motion in limine was quite general, arguing that “the government should not be allowed to introduce irrelevant or marginally relevant prejudicial evidence obtained” during the execution of the warrant, including “letters from an inmate” and “letters (presumably to an inmate).” In its opposition to McElmurry‘s motion, the government stated its intent to seek admission of “letters written by Defendant to others about his sexual interest in children.” Neither McElmurry nor the government specified which letter or letters they sought to introduce, or exclude, at trial.
The district court held a hearing on the motion in limine approximately two weeks before trial. McElmurry‘s counsel stated that his “question with regard to [the letters] is the relevance.” Notably, he did not clearly articulate a prejudice objection or otherwise invoke
It appears the court reasonably relied on McElmurry‘s counsel to take up the offered opportunity to review all the materials seized from McElmurry‘s mother‘s house and confer with the government about trial exhibits and possible redactions. Indeed, at a status conference held the day before trial, the prosecutor confirmed that McElmurry‘s counsel “came over to my office and viewed all of our exhibits.”
One thing is certain: before trial, the district court did not make a definitive
The actual exhibit had been marked by the time of the status conference held the day before trial. There was no objection to the exhibit and the court made no additional ruling at that time. Given this rec-
The majority opinion concludes that McElmurry‘s motion in limine and his argument at the pretrial hearing preserved a
By applying the “read every word” rule from Curtin and Waters to the letter in this case, the majority opinion expands the rule in a way I fear will be unworkable. As the majority opinion acknowledges, “the point of in limine resolution of objections is to enable planning and avoid interruptions to a jury trial.” But the court‘s opinion arguably requires district courts to review all materials the government might introduce at trial—before the government has even specifically identified them—in order to give even a tentative ruling on a pretrial motion in limine. Such a time-consuming burden will almost certainly de-
No. 13-10515.
United States Court of Appeals, Ninth Circuit.
Filed Jan. 26, 2015.
Argued and Submitted Oct. 6, 2014.
Notes
Let me give you a little bit of background about this defendant. This defendant was apprehended in 2006 for basically the same type of conduct. During that conduct, he admitted post-Miranda, which was recorded. That statement was—has been turned over to defense counsel, and he admitted that he uses file sharing to share child pornography files. He admitted he uses encryption, which prevents individuals or anybody to get inside his computer. He admitted the type of child pornography that he likes; the age, the sex, the types of acts. We want to admit those statements to show knowledge in this case. Because in this case, we also have a file-sharing program, albeit a different one. In this case we have encryption. And to date, we still haven‘t been able to crack his computer. And the images that the agent was able to download through the file-sharing program are of the same nature, age, sex of the children. So it‘s the government‘s position that the statements that he made from the prior incident in 2006 are directly relevant under
404(b) to prove knowledge, lack of mistake, some other type of defense like it wasn‘t me, that sort of thing.
What I turned over in discovery weeks ago to counsel were—was a disc full of typed letters that Mr. McElmurry wrote. And within the letters, he talks about how he encrypts his computer and that law enforcement will never find it. He talks about the type of material that he has. All goes, again, to knowledge that it wasn‘t his grandmother‘s computer, it wasn‘t his mother‘s computer, it wasn‘t some other person‘s computer, it was his. And the material on the computer belongs to him.