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United States Court of Appeals,Ninth Circuit.

UNITED STATES of America, Plaintiff–Appellee, v. David McELMURRY, Defendant–Appellant.

No. 12–50183.

Decided: January 26, 2015

Before STEPHEN REINHARDT, ANDREWJ. KLEINFELD, and MORGAN CHRISTEN, Circuit Judges. John Balazs, Sacramento, CA, for Defendant–Appellant. Alessandra P. Serano, Assistant United States Attorney, San Diego, CA, for Plaintiff–Appellee.


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 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 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 decisions6 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. United States “same elements” test,7 receiving necessarily includes possessing. As we stated in Davenport, “[i]t is impossible to ‘receive’ something without, at least at the very instant of ‘receipt,’ also ‘possessing’ it.”8 We therefore have concluded that possessing is a lesser-included offense of receiving child pornography.

This case is distinguishable because McElmurry's convictions are for possessing and distributing, not possessing and receiving. The question this case raises is whether the distinction makes a difference. We conclude that it does.

The Blockburger test, “where the same act or transaction constitutes a violation of two distinct statutory provisions, ․ is whether each provision requires proof of a fact which the other does not.”9 Where the charges are receiving and possessing, the statutes do not each require such proof, because receiving means taking into one's possession, and therefore implies possession at least at the moment of receipt.10 Not so for distribution. Suppose Tom, Dick and Harry are involved. Tom asks Dick for a prohibited image. Dick says, “I don't have it, but Harry does, and I'll ask him to send it to you.” Dick does not possess,11 but nevertheless distributes, because he brought about Harry's distribution. One statute says “knowingly possesses,”12 the other says “knowingly ․ distributes,”13 and either crime can be accomplished without the other. Each crime requires proof of a fact that the other does not, possession for one and distribution for the other. A possessor of prohibited images may choose not to share,14 and a distributor, as in the Tom, Dick and Harry hypothetical, need not himself possess them.15 For another sort of contraband, narcotics, we held in Mincoff that possession is not an element of distribution,16 and the same principle applies to the type of contraband at issue here. One need not even have constructive possession to be a distributor. Dick, in the hypothetical, does not need “dominion and control”17 over Harry's image to arrange for Harry's distribution to Tom. Neither possession nor distribution of child pornography is necessarily a lesser-included offense of the other. Two of our sister circuits have reached the same conclusion,18 and none, to our knowledge, disagree.

II. Sufficiency of Evidence

McElmurry moved for a judgment of acquittal because he did not actively do anything to distribute the images that were used to prove his crime. The government proved distribution with the images one of the agents had downloaded from the “Teentrade” account. The account was on a file-sharing program, so the only person who had to press a button to transfer an image was the FBI agent. The FBI agent downloaded, McElmurry did not upload or email the images.

McElmurry concedes, however, that we have already held in Budziak that conduct such as his constitutes distribution,19 and he merely wishes to preserve the issue. Budziak holds 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 distributing the child pornography.20

The testimony at McElmurry's trial sufficed to show distribution under Budziak. The evidence was that sharing through GigaTribe could only be accomplished if the owner of the shared folder permitted it for a particular user, and an FBI agent impersonating one of McElmurry's permitted users downloaded contraband images from McElmurry's Teentrade account.

III. Rule 403

McElmurry raises a more troubling issue under Federal Rule of Evidence 403. The prosecution was not content to prove, with its evidence about his acts at the time charged, that McElmurry possessed and distributed the contraband images. Instead, the prosecutor emphasized statements McElmurry had made four years earlier, in 2006, in connection with a state law conviction for child pornography, and in a letter written a few months before the present crime was charged to an inmate he evidently knew from his prior imprisonment. In 2007 McElmurry had pleaded guilty to violating Cal.Penal Code § 311.11 (possession or control of matter depicting minor engaging in or simulating sexual conduct), and gone to prison for the crime.

Federal agents recorded an interview with McElmurry in 2006, and the portions helpful to the prosecution were played for the jury. As the interview went on, McElmurry admitted that he had been looking at child pornography since he was 15–years–old (he was 30 at the time of the interview), looked at child pornography daily, traded images with people, and was indeed probably addicted to child pornography. McElmurry admitted in the 2006 interview that his pornography collection was around 40 or 50 gigabytes and included images of children as young as babies and images of bondage using children.

The government also provided the jury with a letter McElmurry had written to a prison inmate he evidently knew from his imprisonment for his 2006 crime. The letter calls the police, probation officers and other authorities a series of obscene and insulting names, and brags that they will never find “the vast majority of what I located for you,” because “everything computer related was very securely encrypted.” McElmurry also argued in the letter against the laws treating persons under 18–years–old as children with respect to sexuality and adult relationships with them. Various parts of the letter made it clear that he was writing to a friend “in County” and was on parole himself.

McElmurry strenuously objected to this material in an in limine motion and in arguments on his and the government's in limine motions addressing admissibility of evidence.21 The government argued that the material should come in to prove “knowledge” and “lack of mistake.” Its theory was that the 2006 material would prove that McElmurry knew the images downloaded by the FBI were on the computer, the reference to encryption would prove that he knew how to encrypt, and both would tend to prove that he was the user of the computer linked to Teentrade. McElmurry had lived in the house but no longer did. The government purported to be concerned that he would raise a reasonable doubt about whether his 68–year–old mother or 104–year–old grandmother, still living in the house, were responsible for the child pornography, not him. McElmurry argued that the 2006 interview was evidence of propensity to commit child pornography crimes rather than of one of the legitimate Rule 404(b) purposes, that the letter was irrelevant, and that the risk of unfair prejudice of both substantially outweighed their probative value under Rule 403.

The district court ruled that the probative value was not substantially outweighed by the danger of unfair prejudice, and overruled the Rule 403 objections. The government argues in its appellee's brief that the interview was admissible under Federal Rule of Evidence 414, but the record does not suggest the district court admitted it on that theory, and Rule 403 analysis would be required even if it had.22 We therefore do not address Rule 414. The government also urges that appellant did not preserve the Rule 403 objection at trial, so he should be deemed to have waived it. But the point of in limine resolution of objections is to enable planning and avoid interruptions to a jury trial. Arguing and losing on the 403 objection sufficed to preserve it.23 An objection to what the court had already ruled unobjectionable would have amounted to taking exception to an evidentiary ruling already made, which Federal Rule of Evidence 103 says is unnecessary.24

Our disagreement with our dissenting colleague is limited to the narrow question of whether the district court's ruling on the in limine objection was “definitive.” We are agreed that under Federal Rule of Evidence 103(b) that “[o]nce the court rules definitively on the record, either before or at trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” When he first ruled during the hearing on in limine objections, the judge said, “My tentative is to allow the letters, providing that they can be proven up, provided there is a foundation for admissibility.” Subsequently, the judge interrupted himself in the discussion of another matter, to make this ruling definitive. This subsequent ruling was that “the motion to exclude irrelevant evidence or marginally relevant evidence [the letters at issue] is denied based upon the proffer from the United States.” The court could have denied an in limine ruling and left the matter open until seeing what letters the government proposed to admit, but by this definitive ruling, it did not. Defense counsel could not have made the objection any more specific because the government had still not stated what it would introduce. In this respect, this case resembles United States v.Varela-Rivera, where we held that an in limine objection not stating the precise content of what was objected to nevertheless sufficed where the government had not clearly said precisely what it was going to offer.25 In this case, the judge's ruling was definitive and not tentative, after he so stated, and the defendant's in limine objection was as clear as it could be in light of the government's failure to state exactly what it proposed to offer. Though the court could have denied an in limine ruling altogether and left the matter for trial, it did not, so its definitive in limine ruling preserved the matter without the need for further objection.

Much of the argumentation in this case, and in the district court's evaluation, focuses on Rule 404(b). Rule 404(b) contains two subsections.26 Subsection (1) is a rule of exclusion, establishing that “[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.”27 Subsection (2) is a rule of inclusion, allowing discretionary admission of evidence of acts extrinsic to the crime charged for a purpose other than to prove character, such as “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”28 Even if the trial court determines that the evidence at issue does indeed tend to prove knowledge or one of the other subsection (2) grounds, a defendant is entitled to have the probative value weighed against the risk of unfair prejudice under Rule 403.29 Rule 404(b)(2) functions as an exception to 404(b)(1), but not as an exception to Rule 403. We need not decide whether the government correctly invoked Rule 404(b) because remand is necessary regardless, under Rule 403.

We addressed how the Rule 403 weighing must be done in our en banc decision in United States v. Curtin.30 That decision requires that we reverse in this case. Curtin involved a defendant's massive collection of disgusting pornographic stories used to prove that he probably intended to commit a sex crime with a minor. The district judge was furnished with more than seventeen stories the prosecutor proposed to use as evidence, admitted five,31 but could not bring himself to read more than two and snippets of the others.32 Despite holding that on the facts of that case the stories were relevant to show intent, we reversed and remanded.33 We held that the district court had failed to properly exercise its discretion because the judge “did not read every word of the five disputed stories in preparation for making its balancing decision.”34 The reason for our “every word” requirement was that “[t]he inflammatory nature and reprehensible nature of these abhorrent stories, although generally relevant, is such that a district court making a Rule 403 decision must know precisely what is in the stories.”35

The right way to rule on such evidence, we held, is first for the government to “identify the specific purpose or purposes” for which admission was sought under Rule 404(b)(2).36 Then the court must determine whether that specific purpose is an element of the crime or is a fact that the defendant has or will put at issue. If so, “the court must then determine, before admitting the other acts evidence, whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice under Rule 403,”37 “in order for its weighing discretion to be properly exercised and entitled to deference on appeal.”38 “In this context, reliance on an offer of proof simply is not enough.”39 The district court must “read every word” of what will be before the jury. The district court cannot very well decide that words it has not read or heard will not be unduly prejudicial, because the court does not know what the words will be, and a prosecutor's offer of proof about the words will not suffice.

We faced similar issues in United States v. Waters, albeit about radical environmentalists burning down buildings rather than about sex, and the admission of anarchist literature to prove the acts charged.40 In Waters, the district court admitted a folder of articles the defendant had apparently given to an alleged co-conspirator. The record did not establish as unambiguously as in Curtin that the district judge had not read the material. But the judge did not say he had read them, the record suggested that the court made its ruling before they were provided for reading, and at oral argument the government confirmed what the record suggested, that the district judge had not read them.41

In this case, as in Waters, the judge did not say in so many words that he had not read the material, but the record, briefs and oral argument appear to establish that he did not. The government's motion in limine did not attach a transcript or copy of the 2006 interview clips or the 2010 letter. The judge could not listen to or read the interview and read the letter if he did not have them, and it appears from the record that the prosecutor did not submit them to the court prior to the in limine Rule 403 ruling. And unfortunately, counsel did not cite or otherwise alert the district court to Curtin. During the hearing on the in limine motions, the judge said he would appreciate a “proffer” from the government of the 2006 interview and the related conviction. The oral argument largely focused on the prosecutor's suggestion that she was entitled to prove McElmurry's prior conviction because it was an element the jury had to decide for sentencing purposes. The prosecutor briefly summarized the 2006 interview42 and said she sought to use it to show knowledge of the child pornography and encryption, and “lack of mistake.” Defense counsel conceded that the defense would be that McElmurry did not know the images were on the computer and that it was not his computer. The court ruled that the 2006 interview statements could come into evidence because they were relevant and were “more probative than prejudicial.”

Defense counsel also objected to the letter to the inmate on the grounds that it was not relevant, was improper propensity evidence, lacked foundation, and was more prejudicial than probative. At the hearing, defense counsel asked what evidence the government sought to introduce, and for what purpose. The prosecutor replied that she had turned over to defense counsel a disc full of letters McElmurry wrote,43 mentioning encryption and the type of material he has, which, she contended went to prove that the computer was his, not his mother's or grandmother's.44 She said she would have her exhibits in order the Friday before trial and defense counsel could then come over to her office and look at them. The judge confirmed his Rule 403 ruling, and said the denial was “based upon the proffer,” not that it was based on examining the evidence, which the court evidently did not have. At a second in limine hearing, the judge said that with respect to presenting to the jury the images downloaded by the FBI agent from the desktop computer, “I may want to see the images beforehand so I can just have an idea of what I'm talking to the jury about,” but he did not ask to see the 2006 interview transcript or the letter to the inmate.

Appellant's brief argues that we must reverse under Curtin because the district court had not read the material when it ruled, and relied merely on the proffer. Although McElmurry's brief discusses Curtin in five places, the government's brief does not discuss or even cite it, and offers no argument that the district court proceeded correctly despite Curtin. At oral argument, government counsel conceded that the district court had not read the inmate letter before admitting it and did not review the 2006 interview clips published to the jury before admitting them. Thus, as in Waters, the record, briefs and argument establish that the district court admitted the evidence without reading it or listening to it.

In Waters, we reversed under Curtin because the district court had not read the anarchist articles submitted as evidence before ruling for the prosecution on the Rule 403 objection. We held in Waters that the “district court had the responsibility to read every page of the articles” to properly weigh unfair prejudice against probative value under Rule 403,45 thereby extending the “read every word” Curtin requirement beyond disgusting and inflammatory child pornography to “all district courts when performing the 403 balancing test.”46 In Curtin, we held that we would not give deference to the district court's Rule 403 ruling, as we ordinarily would for an evidentiary ruling, because the district court had not read the evidence before admitting it over the Rule 403 objection, so we cannot do so here.47 And we expressly held that “reliance on an offer of proof simply is not enough,”48 so the ruling in this case could not properly be made based on the prosecutor's description of the evidence at the in limine hearing.

Ordinarily the next step of our analysis would be deciding whether the government successfully bore its burden of proof that the error in admitting the evidence was harmless.49 That would be a hard argument to make. The first thing the prosecutor said, even before stating his name, was that, “In his own words, the defendant, David McElmurry, is addicted to child pornography.” That line came from the 2006 interview. In closing argument, the prosecutor played clips from the 2006 interview, and emphasized that “for half his life, [McElmurry] had been interested in viewing child pornography. Half of his life. He admitted that he was addicted.” An “addiction,” of course, implies something that an individual cannot stop doing. Another clip from the interview was played, prompting the prosecutor to conclude: “He likes all sorts of child pornography, including images involving babies.”

The government in this case does not attempt to argue harmless error. The government's position appears to have been that the evidence was needed to show that McElmurry knew what was on the computer and had encrypted it, in order to prove that what the FBI agent had downloaded came from McElmurry and not his 68–year–old mother or his 104–year–old grandmother. The importance, rather than the marginality, of the evidence at issue appears to have been the government's basis for seeking its admission. The government has not claimed that the error was harmless, much less borne its burden of proof of harmlessness.

* * *

McElmurry makes several additional arguments. First, he argues that the district court abused its discretion when it admitted the 2006 interview clips, the letter to the inmate, and the facts he admitted in his plea agreement for the 2006 crime, because the danger of unfair prejudice substantially outweighs their probative value. He also argues that this evidence was improper propensity evidence under 404(b). In light of our decision to reverse under Curtin–Waters, we decline to reach these issues.

Since we reverse on 403 error and do not decide on 404 error, the district court will have to analyze the evidence under both rules, with knowledge of what the evidence is. If the government makes a Rule 414 argument in district court, analysis under United States v. LeMay will be required.50

Because we reverse and remand for 403 error, we need not reach McElmurry's argument that the government committed misconduct during opening and closing arguments by emphasizing the disputed evidence.


Convictions for possessing child pornography and distributing the same child pornography do not amount to double jeopardy. Sharing the child pornography through a peer-to-peer network amounts to distribution, even though the distributor does not take some concrete affirmative action for the particular download that is charged as the distribution. The Curtin-Waters error compels reversal. A district court cannot properly exercise its discretion to decide whether the probative value of evidence objected to under Rule 403 outweighs the risk of unfair prejudice without examining the evidence.

The judgment is VACATED and this case is REMANDED for further proceedings consistent with this opinion.

I concur in Parts I and II of the majority opinion. McElmurry's convictions for distributing and possessing child pornography do not violate double jeopardy, and the district court correctly denied McElmurry's motion for a judgment of acquittal on the distribution charge. I also concur in Part III of the majority opinion with respect to the 2006 interview statements. Under United States v. Curtin, 489 F.3d 935 (9th Cir.2007) (en banc), and United States v. Waters, 627 F.3d 345 (9th Cir.2010), the district court erred by making a Rule 403 determination with respect to the interview statements without reviewing them. I dissent, however, from the portion of Part III that concludes that the district court made a similar error with respect to the letter exhibit that was introduced at trial.

The defendants in both Curtin and Waters objected at trial under Rule 403 to specific pornographic stories and specific pieces of anarchist literature, respectively, that the government sought to introduce. See Waters, 627 F.3d at 356 n. 4; Curtin, 489 F.3d at 942. We held in each case that the district court abused its discretion by making a Rule 403 determination without having read the challenged material. Waters, 627 F.3d at 357; Curtin, 489 F.3d at 958. Thus, I understand Curtin and Waters to apply when a Rule 403 objection is raised regarding a specific piece of evidence, and the court definitively rules on the objection without reviewing that piece of evidence. That did not happen with respect to the letter in this case.

During execution of the search warrant at McElmurry's mother's house, FBI agents seized several items, one of which was a “disc full of typed letters that Mr. McElmurry wrote.” McElmurry's pretrial motion in limine was quite general, arguing that “the government should not be allowed to introduce irrelevant or marginally relevant prejudicial evidence obtained” during the execution of the warrant, including “letters from an inmate” and “letters (presumably to an inmate).” In its opposition to McElmurry's motion, the government stated its intent to seek admission of “letters written by Defendant to others about his sexual interest in children.” Neither McElmurry nor the government specified which letter or letters they sought to introduce, or exclude, at trial.

The district court held a hearing on the motion in limine approximately two weeks before trial. McElmurry's counsel stated that his “question with regard to [the letters] is the relevance.” Notably, he did not clearly articulate a prejudice objection or otherwise invoke Rule 403. The prosecutor extended an invitation to McElmurry's counsel “to come over to my office” and “look through all the items that were seized.” The prosecutor also stated: “The Friday before trial, I'll have all of my exhibits in order and he can take a look at them at his leisure.” From this, I understand that the government had not yet identified or marked its exhibits at the time of the pretrial hearing, and that the district court did not know which letters or excerpts of letters the government planned to introduce. The majority reaches the same conclusion.

It appears the court reasonably relied on McElmurry's counsel to take up the offered opportunity to review all the materials seized from McElmurry's mother's house and confer with the government about trial exhibits and possible redactions. Indeed, at a status conference held the day before trial, the prosecutor confirmed that McElmurry's counsel “came over to my office and viewed all of our exhibits.”

One thing is certain: before trial, the district court did not make a definitive Rule 403 determination with respect to any of the letters. At the motion in limine hearing, the court stated: “My tentative [ruling] is to allow the letters, providing they can be proven up, provided there is a foundation for admissibility.” (Emphasis added.) The court also denied McElmurry's “motion to exclude irrelevant evidence or marginally relevant evidence.” In doing so, the court signaled it was unwilling to categorically exclude evidence obtained during the execution of the search warrant, but it did not rule that the evidence would be admitted, or determine whether the probative value of any particular piece of evidence outweighed its prejudicial effect. The government acknowledged: “[The letters are] like any other ․ piece of evidence. Obviously, the United States has to lay the foundation, and to the extent [McElmurry] objects, he can object.”

The actual exhibit had been marked by the time of the status conference held the day before trial. There was no objection to the exhibit and the court made no additional ruling at that time. Given this record, if McElmurry had a Rule 403 objection to the specific letter exhibit that was ultimately proffered at trial, it was his responsibility to articulate it. See United States v. Lui, 941 F.2d 844, 846 (9th Cir.1991) (“A pretrial motion in limine preserves for appeal the issue of admissibility of that evidence if the substance of the objection has been thoroughly explored during the hearing and the district court's ruling permitting introduction of evidence was explicit and definitive.”). He did not do so.1

The majority opinion concludes that McElmurry's motion in limine and his argument at the pretrial hearing preserved a Rule 403 objection to the letter exhibit that was ultimately introduced, citing Federal Rule of Evidence 103(b) and United States v. Varela–Rivera, 279 F.3d 1174 (9th Cir.2002). But these sources make clear that a party is required to renew an objection at trial when the pretrial ruling is not definitive. See Fed.R.Evid. 103(b); Varela–Rivera, 279 F.3d at 1177.2 Here, because the district court's pretrial ruling did not definitively address the specific letter exhibit that the government ultimately sought to introduce and because McElmurry did not object at trial under Rule 403, I would review for plain error the district court's determination that the probative value of the letter outweighed its prejudicial effect, and affirm the district court's ruling.

By applying the “read every word” rule from Curtin and Waters to the letter in this case, the majority opinion expands the rule in a way I fear will be unworkable. As the majority opinion acknowledges, “the point of in limine resolution of objections is to enable planning and avoid interruptions to a jury trial.” But the court's opinion arguably requires district courts to review all materials the government might introduce at trial—before the government has even specifically identified them—in order to give even a tentative ruling on a pretrial motion in limine. Such a time-consuming burden will almost certainly delay pretrial rulings and deprive trial counsel of helpful guidance needed for trial preparation and settlement negotiations. For these reasons, I respectfully dissent.

KLEINFELD, Senior Circuit Judge: