Date: 10-10-2016

Case Style:

Case Number: 15-1460

Judge: Juan R. Torruella

Court: United States Court of Appeals For the First Circuit

Plaintiff's Attorney:

Renée M. Bunker, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney

Defendant's Attorney:

Jane Elizabeth Lee

Description: In July of 2011, United States Postal Inspector Scott
Kelley was monitoring a peer-to-peer network known as the Gnutella
network and discovered that an Internet Protocol ("IP") address
from Maine was sharing files with hash values1 indicative of child
1 Kelley explained that a hash value is a "unique series of numbers and letters" associated with a file that acts "almost like


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pornography. Kelley connected to the IP address and downloaded
nine files which proved to contain child pornography. Kelley
later learned that this IP address was assigned to the subscriber
Kevin Ross at an address in Penobscot, Maine. Ross had joined his
mother, Madeline Ross, at this address in 2011, after his father
fell ill, and continued to live there after his father's death in
April 2011.
On July 25, Kelley obtained a search warrant for the
Ross residence. He executed the warrant with several law
enforcement officers on July 26. Ross was the only individual in
the home at the time of the search. During the search, Chief of
the Belfast Police Department Michael James McFadden and United
States Postal Inspector Michael Connelly investigated the
basement. There, they found a laptop playing a video in which a
"young female, probably under the age of 2, [was] engaged in full
intercourse with an adult male." The agents seized the laptop and
the laptop's internal hard drive, a desktop computer and the
desktop's internal hard drive, an external hard drive, and thumb
drives from the basement. Despite having removed "all of the
Internet devices" from the residence, on August 10, McFadden
discovered that the same IP address was still being used to access
a DNA strand."


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child pornography, and officers returned to Ross's residence to
conduct a search. They were unable to find any devices capable
of connecting to the Internet and did not learn how anyone could
have accessed the Internet from Ross's residence after the initial
search.
Ross was charged with one count of knowingly possessing
child pornography under 18 U.S.C. § 2252A(a)(5)(B) and proceeded
to a two-day jury trial. Prior to trial, the Government indicated
that it intended to introduce two images and one video each from
Ross's laptop and desktop hard drives and his external hard drive,
for a total of six images and three videos. Ross moved to exclude
these materials. He contended that, because he was willing to
stipulate that the videos and images contained child pornography,
"[a]ny probative value that remains in showing this material is
slight and substantially outweighed by the prejudicial quality of
the evidence" under Federal Rule of Evidence 403. In the motion,
Ross described the images and videos as "graphic and disturbing"
such that they risked "creat[ing] an emotional or visceral response
with the jury."
The district court denied the motion "[g]iven the
limited number of actual images or videos to be proffered by the
Government." But the district court noted:
[T]he Court has not viewed any of the images or videos, and the Third Circuit suggested in [United


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States v. Cunningham, 694 F.3d 372 (3d Cir. 2012)] that, if contested, a trial judge should actually view the child pornography before admitting it. If defense counsel believes that the exhibits selected by the Government are too extreme and do not fairly represent what was on the computer, the Court will investigate further, view the proffered exhibits, and rule on any specific objections that Mr. Ross wishes to press. In other words, if there are specific objections by Mr. Ross that the Government's images and videos do not fairly represent the pornography on the subject computers or that they are particularly inflammatory, the Court will resolve this issue after having seen the proffered evidence outside the presence of the jury.

On the first day of trial, the district court repeated this
request:
The Court: And the one issue that is still outstanding, I think, is whether or not the defendant contends that any of the images that the -- that the government proposes to introduce, given the parameters of the order itself, still fall as inadmissible under Rule 403. In other words, do you want me to review those images before they're introduced?

[Ross's Counsel]: Your Honor, I don't think the images misrepresent the type of material that was recovered from the computer. So for that reason, I would say the court doesn't need to -- to review the images.

At trial, Ross did not dispute that the computers and
hard drives contained child pornography, instead arguing that
someone else had used his IP address and computers to access the
materials. He emphasized that his IP address continued to access
child pornography after the computers were removed from his home
and that forensics reports obtained by the Government showed that


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Ross's computer had accessed child pornography in May 2011, when
he and his family were on vacation in Michigan.
In addition to calling several officers who had searched
Ross's home to testify, the Government presented the testimony of
Michael Scichilone, a computer forensic analyst with the United
States Postal Inspection Service Digital Evidence Unit. He stated
that he located "over a hundred images and 50 videos of what
appears to be a female under the age of 18 conducting sexual
activities with adult male[s] and in sexual poses" on the desktop
hard drive and "thousands of images" and "about 50 videos" on the
laptop hard drive, as well as thousands of images and videos on
the external hard drive and thumb drives. Scichilone testified
that Ross's external hard drive could not itself access the
internet and that it would need to have been "physically
connect[ed]" to a computer for these materials to be loaded onto
it. Scichilone also presented extensive testimony that Ross's
computers had been used to access websites offering child
pornography and that many of the file names on Ross's devices
contained terms such as "pedo," short for "pedophilia," and "PTHC,"
an acronym for "preteen hard core." During Scichilone's
testimony, the Government presented the three videos and six images


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now contested by Ross.2 Two of the videos are graphic depictions
of adult males vaginally and anally raping children under the age
of eight and the other depicts a five-year-old girl being forced
to perform oral sex on an adult male.
The jury found Ross guilty, and Ross was sentenced to
ninety months' imprisonment and five years of supervised release.
Ross now appeals.
II.
Under Federal Rule of Evidence 403, "[t]he court may
exclude relevant evidence if its probative value it substantially
outweighed by a danger of . . . unfair prejudice." Fed. R. Evid.
403. Ross contends that Rule 403 requires that the district court
review the challenged evidence and, as a result, the district court
2 Ross contends that four videos were played and suggests that the two longest videos, with lengths of ten and sixteen minutes, respectively, were played in their entirety. As the Government asserts, however, the record indicates that one of these videos (Exhibit 45) was not played for the jury, and that the other (Exhibit 46) was played for only a minute. The record is less clear as to whether the remaining videos, Exhibits 43 and 48, were played in full. (Indeed, there is no indication that Exhibit 48 was played at all, although the Government concedes that it was.). In any case, these videos were only thirty-nine seconds and one minute and forty-three seconds in length, respectively. In a footnote, Ross suggests that the record inaccurately portrays that the videos were presented for shorter amounts of time than they actually were. While we acknowledge that the record could be clearer as to how long these videos were played, we find any such argument waived for lack of development. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).


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erred in failing to view or otherwise obtain a description of the
challenged materials before making an evidentiary determination.
Because Ross waived this point by "intentional[ly]
relinquish[ing]" the argument before the district court, he cannot
now assert it on appeal. United States v. Olano, 507 U.S. 725,
733 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).
Waiver is different from forfeiture, which occurs where "a party
fails to make a timely assertion of a right." United States v.
Sánchez-Berríos, 424 F.3d 65, 74 (1st Cir. 2005) (quoting United
States v. Rodríguez, 311 F.3d 435, 437 (1st Cir. 2002)). Whereas
a forfeited issue may be subject to plain error review, "a waived
issue ordinarily cannot be resurrected on appeal." Id. (quoting
Rodríguez, 311 F.3d at 437).
Ross never suggested in any document filed to the
district court that the court should view the challenged evidence.
Nevertheless, in its order and again before trial, the district
court asked Ross whether he wanted the court to view the evidence,
and Ross declined. Ross now contends that the district court was
only asking whether it should view the materials for the limited
purpose of determining whether they were representative of the
subject matter of the images and videos found on the seized
devices. The district court's order, however, asked whether Ross
had objections that the materials "do not fairly represent the


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pornography on the subject computers or that they are particularly
inflammatory." The use of "or" indicates that the district court
was not merely querying the representativeness of the proposed
evidence, but also asking whether Ross had objections based on its
graphic nature. And when the district court posed this question
before trial, it asked whether "the defendant contend[ed] that any
of the images . . . still fall as inadmissible under Rule 403?"
Although Ross replied that that the images did not "misrepresent
the type of material that was recovered from the computer," his
answer does not narrow the scope of the district court's query,
which more broadly concerned any potential objections under Rule
403. The district court placed this issue "squarely on the table,"
United States v. Acosta-Colón, 741 F.3d 179, 187 (1st Cir. 2013),
and Ross stated, without equivocation, that "the court doesn't
need . . . to review the images." His response "constitutes
classic waiver, rather than forfeiture, which means that he cannot
challenge the judge's ruling even as plain error." Id. Although
we believe the better practice is for a district court to view
challenged evidence (as distasteful as it may be) before making a
ruling under Rule 403, we set aside the question of whether Rule
403 requires this step. In any case, the evidence against Ross
was overwhelming, and any error was, at best, harmless.


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We now turn to the analysis under Rule 403, which
requires that a trial court exclude "evidence if its probative
value is substantially outweighed by 'the danger of unfair
prejudice.'" United States v. Varoudakis, 233 F.3d 113, 121 (1st
Cir. 2000) (quoting Fed. R. Evid. 403). "In balancing the scales
of Rule 403, it is important to note that only 'unfair' prejudice
is to be avoided, as 'by design, all evidence is meant to be
prejudicial.'" United States v. Morales-Aldahondo, 524 F.3d 115,
119-20 (1st Cir. 2008) (quoting Varoudakis, 233 F.3d at 122).
Even where a party is willing to stipulate to a critical fact, "a
criminal defendant may not stipulate or admit his way out of the
full evidentiary force of the case as the Government chooses to
present it." Old Chief v. United States, 519 U.S. 172, 186-87
(1997). We review the district court's Rule 403 determination for
abuse of discretion. Morales-Aldahondo, 524 F.3d at 119.
Ross contends that, because he was willing to stipulate
that his computers contained child pornography, the probative
value of the evidence was so minimal that the district court
committed reversible error by allowing its admission. To the
contrary, the Government argues that the content of the images and
videos was probative of Ross's knowledge that his devices contained
child pornography, which Ross did not concede. We agree.


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In his opening argument, Ross explained that he did not
"dispute that someone, somehow was using the computer or the
Internet address that was assigned to Kevin Ross' house to collect
and access child pornography. But whoever that someone was, it
wasn't Kevin Ross." He focused on the instances in May 2011, when
his computer accessed child pornography despite his being away
from Maine, and in August 2011, when McFadden discovered that his
IP address was accessing child pornography although no devices
capable of reaching the internet remained in his home.
As such, Ross's "proposed stipulation only went so far."
United States v. Dudley, 804 F.3d 506, 517 (1st Cir. 2015). And,
because knowledge was contested, the Government's evidence "served
a valid, non-cumulative, purpose." Id. (quoting United States v.
Eads, 729 F.3d 769, 778 (7th Cir. 2013)). The Government's limited
use of three videos and six images, among the many thousands of
videos and images on Ross's devices, demonstrated that Ross could
not have somehow stumbled upon these items without immediately
recognizing their graphic content, just as it was unlikely that
Ross could have assumed that the many files with names indicative
of child pornography on his computers were completely innocuous.
The Government also presented the testimony of officers who saw a


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graphic video playing on Ross's laptop during the search of his
house immediately after finding Ross home alone.3
Similarly, the Government carefully presented evidence
of browser histories and search terms to indicate that Ross's
computers had been used to locate and view child pornography on
numerous occasions and that his external hard drive and thumb
drives, devices that could not independently access the internet,
contained many images of child pornography. All in all, the
Government's evidence demonstrated that this case was not an
instance in which a few stray images were found on a single
computer, but rather a scenario wherein multiple devices were being
used continually to access and store thousands of highly graphic
files. This account casts doubt on Ross's defense that someone
else had hijacked his computers. "The court is not required to
scrub the trial clean of all evidence that may have an emotional
impact," Morales-Aldahondo, 524 F.3d at 120, and the district court
did not abuse its discretion under Rule 403 in admitting a limited
number of images and videos for the purpose of demonstrating Ross's
knowledge.

Outcome:

Because the district court did not abuse its discretion in admitting the challenged evidence, we affirm.

Plaintiff's Experts:

Defendant's Experts:

Comments:

Federal Bureau of Prisons Offender Info