United States v. Welshans

• Decision Date: 14 June 2018
• Docket Number: No. 16-4106,16-4106
• Parties: UNITED STATES of America v. Christopher WELSHANS, Appellant
• Court: U.S. Court of Appeals — Third Circuit

892 F.3d 566

UNITED STATES of America
v.
Christopher WELSHANS, Appellant

No. 16-4106

United States Court of Appeals, Third Circuit.

Argued: January 16, 2018
Filed: June 14, 2018

Lisa B. Freeland, Esq., Renee D. Pietropaolo, Esq. [ARGUED], 1500 Liberty Center, 1001 Liberty Avenue, Pittsburgh, PA 15222, Counsel for Appellant

Soo C. Song, Laura Schleich Irwin, Esq. [ARGUED], 700 Grant Street, Suite 4000, Pittsburgh, PA 15219, Counsel for Appellee

Before: AMBRO, RESTREPO, and FUENTES, Circuit Judges.

OPINION OF THE COURT

RESTREPO, Circuit Judge.

892 F.3d 570

Appellant Christopher Welshans was convicted of distribution and possession of child pornography in violation of 18 U.S.C. § 2252. In this direct appeal, Welshans raises two claims. First, he argues that his due process right to a fair trial was violated because the prosecution informed the jury, through both evidence and argument, that his child pornography files included deeply abhorrent videos and images of bestiality, bondage, and acts of violence against very young children. Second, Welshans raises a procedural sentencing claim, challenging the application of the obstruction of justice enhancement.

Regarding his first claim, we agree with Welshans on two points—that the challenged evidence was inadmissible under Rule 403 of the Federal Rules of Evidence and United States v. Cunningham , 694 F.3d 372, 391 (3d Cir. 2012), and that the prosecutor’s closing argument improperly appealed to the passions of the jury. However, we conclude that the misconduct did not so infect Welshans’s trial with unfairness as to violate due process. Therefore, we will affirm his conviction. As to Welshans’s sentencing claim, we will reverse and remand for resentencing.

I

A

In February 2014, the Pennsylvania Office of Attorney General determined that child pornography was being shared by an Internet Protocol (IP) address associated with a subscriber later identified as Welshans’s aunt. Law enforcement agents executed a search warrant on her home on March 21, 2014 at 7:30 a.m. The agents found no child pornography, but learned that Welshans, who lived nearby, used the wireless Internet at his aunt’s house.

Immediately thereafter, half of the agents went to Welshans’s house to set up surveillance and to make note of any people leaving or entering. The other agents quickly obtained a search warrant.

Around the same time, Welshans’s aunt called him with a warning that police officers were "on their way" to his house, App. 497, and were "looking for stuff" involving his computers, App. 495. At 9:30 a.m., Welshans began moving files into his laptop computer’s recycling bin.

At 10:10 a.m., agents executed a search warrant at Welshans’s home. Welshans, who was combative, was "detained," handcuffed, and removed from the house. App. 339. He was held by two agents at the rear of a marked police car, and later detained un-cuffed inside the cruiser.

Meanwhile, Welshans’s laptop computer continued to move files into the recycling bin. As explained at trial, this process could run automatically because, after a user selects multiple files to drag into the recycling bin, the process runs until all of the selected files are moved. This process was interrupted at 11:05 a.m. by an agent, who discovered Welshans’s laptop and pulled out its battery. By this time, approximately seven hundred and fifty files

892 F.3d 571

had been moved into the recycling bin. They were easily restored, and none were lost.

In total, the Government recovered an extensive collection of child pornography files from both the laptop and from Welshans’s desktop computer—over ten thousand images and hundreds of videos. Welshans did not dispute that the recovered material was child pornography. Nor did he dispute that child pornography had been distributed through a file-sharing network from his laptop.

Welshans admitted that he was the sole user of his laptop and desktop computers. (A Government expert reached the same conclusion based upon a forensic review of them). Welshans also admitted that he used his aunt’s wireless Internet, the IP address that distributed the child pornography. He conceded that he installed and used a file-sharing network on his laptop, and that he was at his aunt’s house on March 20, 2014—the last date that child pornography files were added to his laptop and the day before his arrest.

But Welshans disputed whether he knew that there was child pornography on his computers. He testified and denied any such knowledge, but offered "no explanation" for how child pornography "ended up on [them]." App. 513.

B

As stated above, the Government recovered an extensive trove of child pornography from Welshans’s computers. Exactly what the jury heard about the content of these files is central to this appeal, and so we must describe this content in detail. See Cunningham , 694 F.3d at 377 n.8 (confronting the same problem).

This content, as will become clear, was particularly "loathsome" even within the universe of child pornography crimes. Id. at 381 n.10. Its particular nature elicits strong responses of disgust and anger. Therefore, for the sake of the reader, we will only summarize the evidence. This summary, it bears noting, should not be taken as a substitute for the actual trial evidence, which was far more explicit and which forms the basis for our Rule 403 analysis.

The parties addressed the content of the child pornography to be admitted at trial, in part, via pretrial motions. Welshans offered to stipulate that the videos and images recovered constituted child pornography as a matter of law. The Government rejected the proposed stipulation. Instead, it sought to introduce a small subset of the images and videos recovered and promised not to introduce exceedingly violent and graphic ones. The Government went on to explain that, in light of this Court’s decision in Cunningham , 694 F.3d at 391, it had "specifically excluded bondage" from the proffered videos to be shown to the jury. App. 52. Providing one deeply disturbing example, the Government specified that it would not introduce videos "show[ing] a nine-year-old girl bound with yellow rope on her arms and legs being sexually abused by both an adult male and a dog. We’re not showing any of that ...." App. 51.

As to the two videos to be shown to the jury, the District Court found that they were "prejudicial" and "disturbing," but that the unfair prejudice did not outweigh their probative value. App. 58. The District Court found that the selected videos were admissible under Rule 403"[g]iven that the government is proposing this very limited, highly condensed and representative sample of the total amount of evidence that exists and also given the fact that the government has presented ... limiting instructions." App. 58.

892 F.3d 572

Pursuant to this pretrial ruling, the Government showed the jury two video clips, without sound, for approximately two and a half minutes. The District Court gave cautionary instructions both before and after playing the videos and during the charge.

These two videos, however, were not the only evidence presented to the jury regarding the nature of the child pornography recovered from Welshans’s computers. While the Government did not show any videos or images it deemed inadmissible under Cunningham , it did tell the jury about them—and repeatedly. It introduced both testimony and exhibits that described horrific sexual acts of bestiality, bondage, and violence perpetrated on very young children, including babies.

To summarize the evidence at issue we begin with Exhibit 2. This Government Exhibit contained five, detailed, paragraph-length descriptions of abhorrent acts of bestiality, bondage, and violence against children. The descriptions include gruesome references to a young child being sexually victimized by man and a dog, being forcibly bound with rope, strapped with a belt, blindfolded, and forced to wear a choker collar. This Exhibit was sent into the jury room during deliberations. In addition, an agent read portions of Exhibit 2 aloud to the jury, including references to the child victim being subjected to bestiality and bondage.

Other exhibits reiterated the message that Welshans possessed deeply abhorrent videos and images of child pornography. The Government introduced disturbing file names and file paths that described, for example, the rape of a one year old baby, the anal rape of a child, and a sexual assault by a dog. These too were sent to the jury room during deliberations. A few of these file names were circled in red before the jury. See App. 332 ("I’ll circle it here[.]"). The prosecutor and witnesses read others aloud to the jury. The jury also heard that the file names were consistent with their content. For example, an agent testified that file names including the terms "1yo, 2yo are indicative ... of what the subject matter would be"—child pornography depicting sexual assaults perpetrated on one and two year old toddlers. App. 406.

Emphasizing the point, the Government elicited testimony from three separate agents that...