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United States v. McElmurry

United States Court of Appeals, Ninth Circuit

January 26, 2015

DAVID MCELMURRY, Defendant-Appellant

Argued and Submitted, Pasadena, California October 7, 2013

Appeal from the United States District Court for the Southern District of California. D.C. No. 3:10-cr-05096-JAH-1. John A. Houston, District Judge, Presiding.


Criminal Law

The panel vacated a criminal judgment and remanded in a case in which the defendant was convicted of possessing child pornography, and distributing it through an online peer-to-peer file-sharing network.

The panel rejected the defendant's contention that convicting him of possessing and distributing the same images amounted to double jeopardy. The panel explained that neither possession nor distribution of child pornography is necessarily a lesser-included offense of the other.

The panel held that, as the defendant concedes, conduct such as his constitutes distribution under United States v. Budziak, 697 F.3d 1105 (9th Cir. 2012), which held 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 distribution.

The panel rejected the government's contention that the defendant waived his Fed.R.Evid. 403 objection to the district court's admission pursuant to Fed.R.Evid. 404(b) of interview statements he made in connection with a prior state law child-pornography conviction, and in a letter written to an inmate a few months before the present crime was charged. The panel explained that a trial objection to what the court had already definitively ruled unobjectionable, on the defendant's in limine motion, would have amounted to taking exception to an evidentiary ruling already made, which Fed.R.Evid. 103 says is unnecessary.

The panel explained that because remand is necessary under Rule 403, it did not need to decide whether the government correctly invoked Rule 404(b). The panel held that United States v. Curtin, 489 F.3d 935 (9th Cir. 2007) (en banc), requires reversal in this case under Rule 403 because the record, briefs and oral argument establish that the district court admitted the statements and the letter without reading or listening to the material. The panel wrote that the government has not claimed that the error was harmless, much less borne its burden of proof of harmlessness.

Judge Christen concurred in part and dissented in part. She concurred in the portions of the majority opinion regarding double jeopardy and sufficiency of evidence to support the distribution conviction, as well as the majority's conclusion that the district court erred by making a Rule 403 determination with respect to the interview statements without reviewing them. She dissented from the majority's conclusion that the district court made a similar error with respect to the letter. She wrote that because the district court's pretrial ruling did not definitively address the specific letter exhibit that the government ultimately sought to introduce and because the defendant did not object at trial under Rule 403, she would review for plain error the district court's determination that the probative value of the letter outweighed its prejudicial effect, and would affirm the district court's ruling.

John Balazs, Sacramento, California, for Defendant-Appellant.

Alessandra P. Serano, Assistant United States Attorney, San Diego, California, for Plaintiff-Appellee.

Before: Stephen Reinhardt, Andrew J. Kleinfeld, and Morgan Christen, Circuit Judges. Opinion by Judge Kleinfeld; Partial Concurrence and Partial Dissent by Judge Christen.


Page 1062

KLEINFELD, Senior Circuit Judge:

We address double jeopardy and evidentiary issues in a child pornography case.


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 of which were running, but could not get into the computers 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

Page 1063

first name is David), they inferred that Teentrade was McElmurry and that the desktop computer had child pornography on it.

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 28 U.S.C. § 1291.


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 decisions[6] 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. ...

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