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United States v. Welshans

United States Court of Appeals, Third Circuit

June 14, 2018


          Argued: January 16, 2018

          Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 2-15-cr-00015-001) District Judge: Honorable Donetta W. Ambrose

          Lisa B. Freeland, Esq. Renee D. Pietropaolo, Esq. [ARGUED] Counsel for Appellant

          Soo C. Song Laura Schleich Irwin, Esq. [ARGUED] Counsel for Appellee

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


          RESTREPO, Circuit Judge.

         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.



         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 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.


         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.

         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 the videos shown to the jury were not the worst of the child pornography recovered. One agent told the jury that there were "worse" videos depicting "bondage and bestiality." App. 295. Another agent testified that he found "child pornography involving infants." App. 428. He told the jury that one thousand five hundred images "depict[ed] the rape or molestation of toddlers, babies, and infants." App. 430. He told the jury that the videos depicted acts of sexual violence on children, including "bondage" and "penetration of prepubescent children." App. 431-32. He testified that what the jury was shown was not "representative of the full substance" of the child pornography recovered because there were "far more violent representations on the computer, far younger victims on this computer." App. 442. Another agent testified that there were "worse images or videos, " in which a child known to the testifying agent "is bound by rope and belts and . . . forced to have sex with a dog." App. 467.

         In addition to this evidence, the Government's opening and closing statements also highlighted the horrific nature of some of the child pornography recovered from Welshans's computers. During its opening statement, the prosecutor told the jury that the videos to be shown were "not nearly the worse [sic] of this selection" and "not the most violent." App. 252-53. In closing, the prosecutor "pull[ed] up Exhibit 2" and asked the jury to "[r]emember some of the things . . . read to us, some of the horrible, disgusting terms . . . read to us that the defendant possessed and distributed." App. 658. The Government went on to argue that "[t]here were images and videos of a little girl, a child being forced to do horrible things with dogs, a child being tied up, bound, collar around her neck, naked." App. 658. The Government argued to the jury "[w]hat you saw wasn't the most violent, it wasn't the most horrific, it wasn't the worse of the worse [sic] . . . It was a small cleaned-up portion just so you as the jurors would have the evidence . . . ." App. 659.


         The jury convicted Welshans of distribution and possession of child pornography. 18 U.S.C. §§ 2252(a)(2), (b)(1), (a)(4)(B). At sentencing, the District Court applied numerous Sentencing Guideline enhancements for specific offense characteristics, including enhancements for material involving "a prepubescent minor or a minor who had not attained the age of 12, " for material portraying "sadistic or masochistic conduct or other depictions of violence; or . . . sexual abuse or exploitation of an infant or toddler, " and for the number of files involved. U.S.S.G. §§ 2G2.2(b)(2), (4), (7)(D).

         The District Court also applied a two-level enhancement for obstruction of justice. U.S.S.G. § 3C1.1. It found that the enhancement applied because Welshans moved files into his laptop's recycling bin in a "panic" after receiving a call from his aunt that the police were on their way to his house. App. 1053. This enhancement increased the offense level to 39. Welshans had a criminal history score of zero, which produced a Guideline range of 262 to 327 months. The Court varied downward to offense level 34, resulting in a final Guideline range of 151 to 188 months. It sentenced Welshans to the low end of the Guidelines range: 151 months' imprisonment and 10 years' supervised release. This timely appeal followed.


         The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We review an unpreserved prosecutorial misconduct claim for plain error. Gov't of the Virgin Islands v. Mills, 821 F.3d 448, 456 (3d Cir. 2016). The plain error test requires (1) an error; (2) that is "clear or obvious"; and (3) "affected the defendant's substantial rights . . . which in the ordinary case means he or she must 'show a reasonable probability that, but for the error, ' the outcome of the proceeding would have been different." Molina-Martinez v. United States, 136 S.Ct. 1338, 1343 (2016) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 76, 82 (2004)). If these conditions are met, we will exercise discretion to correct the error if it "seriously affects the fairness, integrity or public reputation of judicial proceedings." Id. (quoting United States v. Olano, 507 U.S. 725, 736 (1993)). We exercise plenary review of a district court's interpretation of the Sentencing Guidelines and review its factual findings for clear error. United States v. Miller, 527 F.3d 54, 75 (3d Cir. 2008).


         In his first claim, Welshans asserts that the Government committed prosecutorial misconduct by informing the jury, through evidence and argument, that the child pornography recovered included deeply disturbing acts of bestiality, bondage, and the violent sexual assault of very young children. We agree with Welshans that the prosecution crossed the line. Nevertheless, we conclude that the errors did not render his trial fundamentally unfair.


         The Due Process Clause of the Fifth Amendment guarantees the right to a fair trial including the right to be free from prosecutorial misconduct. See United States v. Liburd, 607 F.3d 339, 343 (3d Cir. 2010). Our analysis of a prosecutorial misconduct claim proceeds in two steps. Id. at 342. First, we consider whether there was misconduct. "If so, we proceed to determine whether that misconduct 'so infected the trial with unfairness as to make the resulting conviction a denial of due process, '" taking into account the entire proceeding. United States v. Repak, 852 F.3d 230, 259 (3d Cir. 2017) (quoting Mills, 821 F.3d at 456 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974))). We consider "the prosecutor's offensive actions in context and in light of the entire trial, assessing the severity of the conduct, the effect of the curative instructions, and the quantum of evidence against the defendant." Moore v. Morton, 255 F.3d 95, 107 (3d Cir. 2001).


         At the initial step of our analysis, Welshans asserts that the prosecution committed misconduct in two ways: (1) that it "systematically inject[ed] inadmissible . . . evidence" at trial, United States v. Morena, 547 F.3d 191, 194 (3d Cir. 2008), and (2) that the prosecutor's closing argument crossed the line by inflaming the passions and emotions ...

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