United States v. Cunningham

• Decision Date: 18 September 2012
• Docket Number: No. 10–4021.,10–4021.
• Citation: 694 F.3d 372
• Parties: UNITED STATES of America v. David L. CUNNINGHAM, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

694 F.3d 372

UNITED STATES of America

v.David L. CUNNINGHAM, Appellant.

No. 10–4021.

United States Court of Appeals, Third Circuit.

Argued Jan. 12, 2012.

Filed: Sept. 18, 2012.

Kimberly R. Brunson [Argued], Lisa B. Freeland, Office of Federal Public Defender, Pittsburgh, PA, for Appellant.

Rebecca R. Haywood [Argued], David J. Hickton, Soo C. Song, Office of the United States Attorney, Pittsburgh, PA, for Appellee.

Before: McKEE, Chief Judge, FUENTES, and JORDAN, Circuit Judges.

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 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. BackgroundA. 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.

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 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 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 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 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 (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

( 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 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 governmentcontended 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...