A blog of the Philadelphia Bar Association’s Criminal Justice Section

By Burt Rose

Click for Opinion

UNITED STATES OF AMERICA v. David L. CUNNINGHAM, Appellant, 2012 WL 4075875, No. 10–4021 (Sept. 18, 2012) is a decision of the United States Court of Appeals for the Third Circuit ruling on an appeal from the United States District Court for the Western District of Pennsylvania, (D.C. No. 07–cr–298). The District Judge was Hon. Arthur J. Schwab. Kimberly R. Brunson, Esq., of the Federal Public Defender of Pittsburgh represented the Appellant. The case was argued beforeMcKEE, Chief Judge, FUENTES, and JORDAN, Circuit Judges. Judge Jordan wrote the Opinion for the Panel. There was no dissent.

The Appellant was charged under 18 U.S.C. § 2252(a)(2), which provides that “any person who … knowingly receives, or distributes, any visual depiction … if the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and … such visual depiction is of such conduct … shall be punished as provided in § 2252(b)(1).” He was also charged under 18 U.S.C. § 2252(a)(4)(B), which provides that “any person who … knowingly possesses … video tapes … if the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and … such visual depiction is of such conduct … shall be punished as provided in § 2252(b)(2).”

Forensic analysis of a computer found in Cunningham’s bedroom revealed that 46 of the 212 files in the directory contained child pornography. In addition, a search of a folder that contained files that were not completely downloaded revealed 11 more videos that contained child pornography. The parties stipulated that the videos recovered contained visual depictions of real children under the age of 18 years of age engaging in sexually explicit conduct.

Prior to trial, Cunningham filed a Motion in Limine Concerning Pornographic Images and File Names. In that motion, hesought to preclude the government from showing the jury any of six child pornography videos recovered from the computer. Cunningham argued that, because he was stipulating that the government exhibits constituted child pornography, the probative value of any videos was substantially decreased. Cunningham argued that those images not only revealed children engaging in sexually explicit conduct, bondage and actual violence, they were obscene and humiliating, “necessarily conjuring feelings of disgust and blind rage”. The motion was denied without the judge looking at the six videos. The court found that the “still images were not representative of the actual evidence in this case”.

Both before and after each of the video excerpts were played for the jury, the District Court read a cautionary instruction, which directed the jury to view the images in a fair and impartial manner.

After being convicted as charged, the District Court sentenced Cunningham to 210 months’ imprisonment and a 20 years term of supervised release.

On appeal, the government argued that the video excerpts were highly probative because the content of the videos verified the accuracy of many of the lurid file names the government had admitted into evidence, and they also tended to showknowledge of the distribution, receipt and possession of child pornography. The Court of Appeals agreed that the video excerpts were derived from files charged in the indictment and that the images shown to the jury were not extrinsic to the crime charged but rather were a part of the actual pornography possessed. However, the probative value of each clip was reduced by the existence of the clips before it: “Once one video excerpt from each of the two videos was shown, the fact being proven— i.e., that the person distributing, receiving, and possessing that pornography would know that it contained images of real minors engaging in sexually explicit activity—may well have been established.” As a result, after one excerpt from each video was displayed, the probative value of the remaining excerpts became diminished because knowledge of distribution, receipt, and possession had already been established in some degree by the prior video excerpts.

The violent and sadistic character of these videos likely created disgust and antagonism toward Cunningham which risked overwhelming prejudice towards him. Given the other available evidence, the government did not need to show videos of pre-pubescent children being bound, raped, and violently assaulted to prove that Cunningham knowingly possessed, received, and distributed child pornography. In addition, the more video excerpts were shown, the more it became a needless presentation of unfairly prejudicial and cumulative evidence: “This is a case where we can confidently say that the probative value of some of the video excerpts was so minimal that it was obvious that the potential prejudice to the defendant substantially outweighed any probative value that they might have.”

The Court stressed that the substantive error of admitting all of the video excerpts was prompted by the procedural error of failing to review those excerpts prior to ruling on their admissibility Thus the Court held that the District Court had abused its discretion under FREvid Rule 403 by not limiting or excluding these video excerpts and ordered a new trial before a different judge.

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Tag Cloud

%d bloggers like this: