United States v. Evans, s. 14–1707

• Decision Date: 18 September 2015
• Docket Number: Nos. 14–1707,14–3112.,s. 14–1707
• Citation: 802 F.3d 942
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Robert Carey EVANS, Defendant–Appellant. United States of America, Plaintiff–Appellee v. Robert Carey Evans, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

802 F.3d 942

UNITED STATES of America, Plaintiff–Appellee

v.Robert Carey EVANS, Defendant–Appellant.

United States of America, Plaintiff–Appellee

v.Robert Carey Evans, Defendant–Appellant.

Nos. 14–1707

14–3112.

United States Court of Appeals, Eighth Circuit.

Submitted: June 12, 2015.

Filed: Sept. 18, 2015.

Rehearing and Rehearing En Banc Denied Dec. 2, 2015.

Jason J. Tupman, AFPD, argued, Sioux Falls, SD (Scott Duncan McGregor, AFPD, Rapid City, SD, Richard J. Henderson, AFPD, Fargo, ND, on the brief), for Defendant–Appellant.

Jennifer Klemetsrud Puhl, AUSA, argued, Fargo, ND, for Plaintiff–Appellee.

Before LOKEN, BYE, and KELLY, Circuit Judges.

KELLY, Circuit Judge.

I. Background

In August 2012, Special Agent Jesse Smith with the North Dakota Bureau of Criminal Investigations began investigating computer IP addresses in North Dakota that were suspected of downloading child pornography. The IP addresses were traced back to Robert Evans. Smith contacted Special Agent Mike Arel with Homeland Security and obtained a search warrant for Evans's apartment in Fargo, North Dakota, which was executed in November 2012. During Smith's forensic examination of Evans's computers, hard drives, and DVDs (collectively, media devices), he found more than 23,000 images and 1,300 video files depicting child pornography. Evans was charged in a Third Superseding Indictment with one count of transportation of child pornography and fourteen charges of possession of child pornography. Evans was convicted on fourteen counts of possession of child pornography in violation of 18 U.S.C. § 2252A.¹ The district court² sentenced Evans to 120 months' imprisonment and ordered him to pay $3,250 in restitution to one of the victims depicted in the child pornography in Evans's possession. Evans appeals two evidentiary decisions made by the district court during trial and the restitution award. Having jurisdiction to consider this appeal under 28 U.S.C. § 1291, we affirm.

II. Discussion

A. Images and Video Clips

The government proposed to show the jury 14 images and 22 video clips of child pornography located on Evans's media devices–36 items total. Evans had already stipulated that his media devices contained child pornography, and he asked the court to allow the government to show no more than 3 images and limit the time they were shown to the jury to approximately 10 seconds per image. The objection, as articulated by defense counsel outside the presence of the jury, was that it was “unnecessary and cumulative to show more than approximately three images, that it would also I think have a tendency to confuse and possibly just create such an emotional reaction in the members of the jury that it would be impossible for Mr. Evans to get a fair trial here.” Defense counsel also asserted it was “unnecessary to traumatize the jury by requiring them to watch more than three of these images.” The district court overruled Evans's objection, and allowed the introduction of the government's proposed 14 images and 22 video clips.

On appeal, Evans argues that the district court erred by failing to conduct the balancing analysis—comparing the probative value of the proffered images and video clips to the danger of an unfairly prejudicial effect, as well as the relative probative value and prejudicial effect of evidentiary alternatives—required by Federal Rule of Evidence 403. Evans does not dispute that the images and video clips are probative. Instead, he asserts that “[s]howing the jury actual images was simply cumulative and, due to their obvious and unavoidable emotional impact, unduly prejudicial.” Evans also argues that the court failed to consider his stipulation that the media devices contained depictions of child pornography³ and the option of presenting fewer images or only the file names to the jury. The admission of this evidence by the district court is reviewed for an abuse of discretion. United States v. Battle, 774 F.3d 504, 511 (8th Cir.2014).

When addressing Evans's objection, the district court considered the number of images and video clips the government sought to show to the jury,⁴ as well as the amount of time the jury would be exposed to them. The district court noted that it would take approximately 5 minutes to show the 14 images and 22 video clips to the jury. During a portion of that time, the jury saw only the file name preceding the image or video clip.⁵ The court also took into consideration the impact this evidence may have on the jury, recognizing the legitimate goal of “trying to spare the jury the trauma.” Ultimately, the court concluded there was “no risk of any sort of undue delay or cumulative evidence being presented,” and stated that “it strikes me that this number of images is within the range of what would be appropriate.” Despite Evans's assertion otherwise, the district court did conduct a Rule 403 analysis before ruling on his objection. See United States v. McCourt,

468 F.3d 1088, 1092 (8th Cir.2006) (“While [the district court may not have conducted] a lengthy analysis, “ ‘the district court's mere failure to make a record of its Rule 403 weighing is not reversible error’ ”).⁶

Furthermore, while Evans argues that the district court abused its discretion when allowing the government to show these images and video clips, he does not articulate what unfair prejudice resulted from the publication of this evidence to the jury. See McCourt, 468 F.3d at 1092 (“[T]he Supreme Court has advised that Rule 403 requires a preliminary showing of unfair prejudice before the need to balance the probative value of the evidence and its alternatives arises.”). Images and videos depicting child pornography are by their very nature disturbing, and viewing such depictions is highly likely to generate an emotional response. But that alone cannot be the reason to exclude the evidence. See McCourt, 468 F.3d at 1092 (“ ‘[Rule 403 ] does not offer protection against evidence that is merely prejudicial in the sense of being detrimental to a party's case. The rule protects against evidence that is unfairly prejudicial.’ ” (quoting United States v. Johnson, 463 F.3d 803, 809 (8th Cir.2006) )). An excessive number of, or particularly inflammatory, depictions indeed might amount to unfair prejudice. But Evans does not argue that the images and video clips shown were not representative of the type of materials found on his media devices. Nor does he allege that the government selected particularly graphic images or video clips, the nature of which might have unnecessarily inflamed the jury or aroused emotions the jury would be unable to set aside. See Worthey, 716 F.3d at 1114–15. Similarly, Evans articulates no convincing reason for us to conclude that the number of files shown in this case or the amount of time the jury was required to spend reviewing them was impermissibly excessive.See, e.g., United States v. Becht, 267 F.3d 767, 770, 774 (8th Cir.2001).

On this record, we cannot say that publication of the images and video clips to the jury was unfairly prejudicial. Without a preliminary showing of prejudice, “we need not consider or weigh the probative value” of the images and video clips. Worthey, 716 F.3d at 1115. Because there has been no showing of unfair prejudice, we cannot conclude that the district court abused its discretion in admitting the images and video clips. See Worthey, 716 F.3d at 1110–11, 1114–15 (affirming the admission of five seconds each of nine videos out of 200 videos and 204 images found in the defendant's possession); McCourt, 468 F.3d at 1093 (affirming the admission of seven video clips found in the defendant's possession); Becht, 267 F.3d at 770, 774 (affirming the admission of 39 still images of child pornography and the provision of hard copies of the photos to the jury).

B. Testimony Regarding Stories

Before trial, the government moved in limine to introduce stories found on Evans's media devices about adult men engaging in sexual acts with minors. The district court denied the motion on the grounds that “at this time, the stories are probative only of Evans's prurient interest in children,” adding that it would reconsider the government's motion if Evans “open[ed] the door” during trial. Early in the trial, the government renewed its motion to introduce evidence of the stories, asserting “that the defendant opened the door in his opening by indicating that this was a virus that was responsible for all of this material.” The district court again denied the motion. At the close of the government's case, the government moved a third time to admit evidence of the stories, asserting that “the stories ... located on the two hard drives are relevant to show identity as well as lack of mistake or intent.” This time, the district court found that Evans had opened the door to this evidence based on his cross-examination of the government's witnesses and ruled the stories admissible. We review this ruling for an abuse of discretion. Battle, 774 F.3d at 511.

The district court properly denied the government's motion to introduce the stories both before trial and at the start of the government's case in chief. At that point, the evidence was nothing more than propensity evidence, suggestive only of Evans's “predisposition and inherent tendency to commit the crimes charged.” United States v. Johnson, 439 F.3d 884, 889 (8th Cir.2006) (holding that two similar stories found in printed hard copy in the defendant's home were inadmissible propensity evidence). After Evans cross examined the government's witnesses, however, the district court determined he had opened the door to admission of this evidence by asserting that he did not know the images and videos of child pornography were on his media devices. See United States v. Bagola, 796 F.3d 903, *5 (8th Cir.2015) (explaining that the doctrine of “opening the door” allows a party to introduce otherwise inadmissible evidence to “clarify or rebut” an issue first raised by the opposing ...