text:
United States v. Pires, 642 F.3d 1 (1st Cir. 2011)
Court of Appeals for the First Circuit
Filed: April 6th, 2011
Precedential Status: Precedential
Citations: 642 F.3d 1
Docket Number: 10-1062
Panel: Michael Boudin, David Hackett Souter
Judges: Boudin, Circuit Judge, Souter
Download Original
642 F.3d 1 (2011)
UNITED STATES of America, Appellee,
v.
Johnny PIRES, Defendant, Appellant.

No. 10-1062.
United States Court of Appeals, First Circuit.

Heard March 9, 2011.
Decided April 6, 2011.
*4 Judith H. Mizner, Assistant Federal Public Defender, for appellant.

Mark T. Quinlivan, Assistant United States Attorney, with whom Carmen M. *5 Ortiz, United States Attorney, was on brief, for appellee.

Before BOUDIN, Circuit Judge, SOUTER,[*] Associate Justice, and SELYA, Circuit Judge.

SELYA, Circuit Judge.

In this appeal, which follows a conviction for attempted receipt and possession of child pornography, defendant-appellant Johnny Pires claims (i) insufficiency of evidence; (ii) error in the exclusion of proffered expert testimony; (iii) prosecutorial misconduct; and (iv) multiplicity of charges.

After careful consideration, we find none of these claims persuasive and, accordingly, affirm the judgment of the district court.

I. BACKGROUND

On March 19, 2008, a federal grand jury sitting in the District of Massachusetts returned an indictment that charged the appellant with two counts of attempted receipt of child pornography, 18 U.S.C. § 2252(a)(2), (b)(1), and one count of knowing possession of child pornography, id. § 2252(a)(4)(B). We rehearse the relevant facts through the prism of the ensuing trial. The government's case relied in large part on testimony from agents of the Federal Bureau of Investigation (FBI). Byron Mitchell, a member of the FBI's cyber crime unit, related that, on December 19, 2006, he mounted an online undercover investigation. To that end, he availed himself of LimeWire, a commercially available peer-to-peer networking program that allows file-sharing between unrelated computers. He entered a search term ("Lolita") that he knew to be favored by individuals who fancied child pornography. His query returned a number of files available for download, each associated with a particular Internet protocol (IP) address.

Because some of the file names were suggestive of child pornography, Mitchell activated LimeWire's "browse the host" function, which allowed him to view all of the files available for download from a particular user's "shared files" folder. Several of the revealed files contained words that Mitchell, an experienced agent, knew to be associated with child pornography. He downloaded a number of those files from that user's folder and confirmed that some appeared to contain child pornography. He then traced the associated IP address directly to the appellant.

At that point, another FBI agent, Sarah De Lair, took charge. After performing some preliminary investigation of her own, she obtained a search warrant for the appellant's home. On April 10, 2007, De Lair, accompanied by other law enforcement personnel, executed the warrant.

De Lair testified that when she knocked on the door, identified herself, and announced that she had a search warrant, the appellant permitted entry. Following a protective sweep, De Lair and another FBI agent, Bryan Zinn, conversed with the appellant. De Lair explained that the agents would be searching the premises for evidence of child pornography and advised the appellant of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602,  16 L. Ed. 2d 694 (1966). The appellant replied that he understood his rights and signed a written waiver to that effect.

*6 De Lair proceeded to question the appellant. The interview was not recorded, nor was the appellant ever asked to sign a written statement. The agents' version of the interview follows.

The appellant told De Lair that he, his sister, and his fiancée all used the computers that were on the premises and that these computers held a goodly amount of child pornography (at least 15 files). He initially stated that he did not intentionally download any child pornography. He acknowledged, however, that he had opened suspiciously titled files obtained through LimeWire because he was curious about whether the file names reflected the actual contents of the files.

He claimed that he had used the LimeWire program to search for images of the World Trade Center. After downloading some such images, he clicked on a link entitled "Vicki willing" and watched a video of a young girl, eight to nine years of age, who was naked and engaged in a sexual act with an adult. The girl, he observed, was "not doing anything good." The appellant estimated that he saw approximately five videos related to "Vicki willing."

In the course of the interview, the appellant admitted to using search terms such as "Lolita" and "young preteen." He also admitted that those searches yielded files that depicted prepubescent children, approximately seven or eight years old, "not doing anything good." He acknowledged that he knew children were involved in child pornography and that he could tell if someone was less than 17 years of age. When De Lair showed him the titles of the two files containing child pornography that Agent Mitchell had downloaded and descriptions of their contents, the appellant stated that he recognized the titles but not the descriptions. Queried about whether he was "attracted" to child pornography, the appellant said that he was uncomfortable with the term "attracted" but admitted that he had been "interested" in child pornography (specifically, images depicting seven-to-ten-year-old children) for at least a year. Elaborating on this point, he noted that he looked at pornographic images of children three or four times per week and that he downloaded five to six such images once or twice per week.

As fruits of the search, the agents seized two computers. A forensic examination of one computer's hard drive revealed, among other files containing child pornography in the appellant's LimeWire shared files folder, the two videos that Agent Mitchell had downloaded. These two video files, each of which forms the basis for a separate count in the indictment, bore a creation date of October 21, 2006.

Nearly a year after the search, Agent De Lair tried to interview the appellant's sister at the sister's residence. By happenstance, she encountered the appellant, who told her that if he had known either that it was wrong or that anyone was watching, he would not have downloaded the files. Later, he left a voice message for De Lair, in which he indicated that he had made a mistake by having the materials on his computer. The government introduced a recording of this voice message at trial.

The appellant testified in his own defense. His account of these interactions diverged from the agents' accounts in some respects. We summarize portions of his version of what he told the agents.

The appellant maintained that he had used LimeWire to search for adult pornography and sometimes would (inadvertently) come across child pornography. If he opened a video that turned out to be child pornography, he would click out of it. While he admitted using search terms like *7 "Lolita," he did not understand them to be associated with child pornography. He viewed the video entitled "Vicki willing" and clicked out of it. He did not, however, delete it. He never searched for child pornography or intentionally downloaded any child pornography.

The appellant did admit to having told the agents that there was child pornography on his computer, but explained that there were also other items on the computer that he did not want and had not sought. He denied having said that he was interested in child pornography. He had used LimeWire for only about a year, three or four times a week, and would download five or six "search terms" per week,[1] but without any intention of searching for, or downloading, child pornography. He denied having told Agent De Lair that he would not have downloaded the images in question had he known either that it was wrong or that someone was watching. Finally, he tried to explain away the "mistake" voicemail; he had meant to say "I made a mistake by having the child pornography on the computer, but not intentionally."

Faced with this chiaroscuro record, the jury found the appellant guilty of one count of attempted receipt of child pornography (count two) and one count of possession of child pornography (count three), and acquitted him on the other attempted receipt count (count one). Prior to the submission of the case to the jury, the appellant had moved for a judgment of acquittal as to count two. See Fed. R.Crim.P. 29(a). He renewed that motion post-verdict, see Fed.R.Crim.P. 29(c), and he simultaneously moved for a new trial, see Fed.R.Crim.P. 33(a). The district court denied both motions, and on January 6, 2010, sentenced the appellant to a five-year incarcerative term. This timely appeal followed.

II. ANALYSIS

The appellant has briefed four claims of error. For ease in exposition, we divide our analysis into segments that correspond to these claims. We start with the one claim that seeks acquittal and then assay the three claims that seek the granting of a new trial.

A. Sufficiency of the Evidence.

The appellant contends that, as to count two, the evidence was insufficient to prove the offense's knowledge and interstate commerce elements. We address these contentions sequentially. First, however, we rehearse the standard of review.

We assess preserved challenges to evidentiary sufficiency de novo, considering the evidence in the light most agreeable to the verdict. United States v. Rodríguez-Vélez, 597 F.3d 32, 38 (1st Cir. 2010). Our appraisal is aimed at determining whether on this view of the record a reasonable juror could conclude that the government proved each element of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,  61 L. Ed. 2d 560 (1979); United States v. Troy, 618 F.3d 27, 31 (1st Cir.2010).

1. Knowledge. The appellant contends that the government failed to introduce evidence sufficient to establish that he knew, when he received the relevant video file, that it depicted real minors engaged in sexually explicit conduct. This contention operates at three different but overlapping levels.

First, the appellant tries to engraft an extra layer of mens rea onto the offense. *8 In his view, the government, by charging that he "knowingly attempted to receive" the images, had to prove that he knew the character of the material at the very moment of its acquisition. He insists that when he downloaded the file, he was aware only of its title, and he refers to testimony presented at trial for the proposition that titles do not always reliably indicate a file's actual contents. The appellant believes that this testimony demonstrates that he could not have known the video's actual contents on the basis of its name alone and therefore could not knowingly have attempted to receive it.

This argument is belied by the language of section 2252(a)(2), which criminalizes the knowing receipt of child pornography. We simply do not see how incorporating the statutory language into the charging document could have elevated the necessary proof beyond the elements required by the statute itself.

This brings us to the second level of the argument. To prove attempt, the government must show both that the accused intended to commit the underlying substantive offense (here, knowing receipt of child pornography) and that he took a substantial step toward committing that crime. United States v. Gobbi, 471 F.3d 302, 309 (1st Cir.2006). But this does not mean that the government bore a burden to prove each element of the underlying offense. While the underlying offense in this case requires the receipt of images of real-life minors engaged in sexually explicit conduct, see United States v. McNealy, 625 F.3d 858, 870 & nn. 47-48 (5th Cir. 2010) (citing United States v. X-Citement Video, Inc., 513 U.S. 64, 78, 115 S. Ct. 464,  130 L. Ed. 2d 372 (1994)), the government in an "attempt" case has no burden to prove that the appellant knew that the downloaded file actually contained such images. Rather, the government is required to prove that the appellant believed that the received file contained such images. See United States v. Bauer, 626 F.3d 1004, 1008 (8th Cir.2010). No other view of the relevant threshold of proof comports with the Supreme Court's reasoning in United States v. Williams, 553 U.S. 285, 128 S. Ct. 1830, 170 L. Ed. 2d 650 (2008), in which the Court explained that "[t]here is no First Amendment exception from the general principle of criminal law that a person attempting to commit a crime need not be exonerated because he has a mistaken view of the facts." Id. at 304, 128 S. Ct. 1830.

The third layer of the appellant's argument rests on the district court's jury instructions. Contrary to what the statute of conviction requires, the court told the jury that "the government has to prove not just that the defendant voluntarily and intentionally, not by mistake, received a depiction, a video, but that he knew at the time of receipt that the production of that video involved the use of a real minor and that the video showed a real minor." This instruction plainly overstates the government's burden.

In circumstances where, as here, a district court overstates the government's burden of proof to the defendant's benefit in its charge to the jury, a reviewing court faced with a challenge to the sufficiency of the evidence must measure that challenge against the correct legal standard, not against the erroneous standard set forth in the charge. See United States v. Bayes, 210 F.3d 64, 69 (1st Cir. 2000). With the correct standard as our metric, we conclude that the evidence, taken in the light most agreeable to the verdict, is sufficient to ground the conviction.

"[A] showing of scienter ... can (and often will) be made through circumstantial evidence." United States v. Hussein, *9 351 F.3d 9, 20 (1st Cir.2003). Here, the jury heard testimony from two FBI agents confirming that, by his own admission, the appellant deliberately used search terms associated with child pornography (such as "Lolita" and "young preteen") when trolling on LimeWire. This evidence is significant because a defendant's use of search terms associated with child pornography can support a finding that he knew that the images retrieved contained child pornography. See McNealy, 625 F.3d at 870-71. Such an inference is strengthened in this case by the appellant's statement to the agents that those searches yielded videos of children, approximately seven or eight years old, "not doing anything good." In addition, the appellant admitted to the agents that he had had an interest in child pornography for about a year and that he had looked at child pornography three or four times a week, downloading five to six images containing child pornography once or twice a week. Nor was this all. The title of the file that underbraced count two was highly suggestive of child pornography.[2]

Taking this tapestry of facts as a whole, we believe that the jury reasonably could have inferred that the appellant, having seen the name of the file, proceeded to download it; and that when he did so, he was seeking to acquire child pornography. Thus, the evidence supports a finding that the appellant acted "knowingly" with respect to count two.

2. Interstate Commerce. The appellant's complaint that the government failed to prove the "interstate commerce" element of the offense of conviction—that is, that the video file he attempted to receive traveled in interstate commerce— is squarely foreclosed by circuit precedent. See United States v. Lewis, 554 F.3d 208 (1st Cir.2009). In Lewis, we held that "the government proved the images traveled interstate when it introduced evidence that [the defendant] received images that were transmitted over the Internet." Id. at 215. Given that the video file underlying count two in this case was also transmitted over the Internet, the holding in Lewis is of decretory significance.

For the most part, newly constituted panels in a federal appellate court are bound by prior panel decisions closely on point. Troy, 618 F.3d at 35; United States v. Rodríguez, 527 F.3d 221, 224 (1st Cir.2008); United States v. Wogan, 938 F.2d 1446, 1449 (1st Cir.1991). Although this permutation of the doctrine of stare decisis does not constitute an "immutable rule," Carpenters Local Union No. 26 v. U.S. Fid. & Guar. Co., 215 F.3d 136, 142 (1st Cir.2000), it is subject to only a few "narrowly cabined exceptions," Troy, 618 F.3d at 36; San Juan Cable LLC v. P.R. Tel. Co., 612 F.3d 25, 33 (1st Cir.2010). To be specific, a departure from circuit precedent is warranted only where the previous holding is "contradicted by controlling authority, subsequently announced (say, a decision of the authoring court en banc, a Supreme Court opinion directly on point, or a legislative overruling)," Rodríguez, 527 F.3d at 225, or in "those relatively rare instances in which authority that postdates the original decision, although not directly controlling, nevertheless offers a sound reason for believing that the former panel, in light of fresh developments, would change its collective mind," Williams v. Ashland Eng'g Co., 45 F.3d 588, 592 (1st Cir.1995).

The appellant offers no serious claim that any of the exceptions to the law of the circuit rule applies. While he points to *10 United States v. Schaefer, 501 F.3d 1197, 1200-01 (10th Cir.2007), to suggest that our holding in Lewis is incorrect, the Tenth Circuit's decision in Schaefer predates Lewis. Consequently, it does not trigger any of the isthmian exceptions to the law of the circuit rule.

That ends this aspect of the matter. The holding in Lewis—that evidence showing that images were received via the Internet is sufficient to satisfy the interstate commerce element under 18 U.S.C. § 2252(a)(2)—applies here. Hence, the evidence of the appellant's use of the Internet to procure files via LimeWire is sufficient to ground a finding that the interstate commerce element of the offense was satisfied.

B. Exclusion of Expert Testimony.

During pretrial proceedings, the government moved to exclude certain expert testimony that the appellant proposed to present at trial. This testimony was to come from a forensic psychologist, Dr. Carol Ball. Her report stated in pertinent part that the appellant was "free of major mental illness, antisocial personality traits, and sexual deviance" and was "not a pedophile or sexual psychopath." The parties sharply disagreed about the admissibility of this testimony: the appellant asserted that it was relevant because it "demonstrates the absence of motive for the alleged crimes"; the government asserted that it was not relevant to any element of the charged crimes. The district court found that the proffered testimony might be relevant but that its relevance was "outweighed by the danger of confusion of the issues or misleading the jury." Citing Federal Rule of Evidence 403, the court granted the motion in limine. It later denied a motion for reconsideration. The appellant assigns error to the exclusion of this testimony.

We review a trial court's decision to exclude evidence for abuse of discretion. United States v. Stierhoff, 549 F.3d 19, 27 (1st Cir.2008); United States v. Zaccaria, 240 F.3d 75, 78 (1st Cir.2001). This deferential standard normally precludes us from substituting our judgment for that of the district court absent an obvious mistake. Torres-Arroyo v. Rullán, 436 F.3d 1, 7 (1st Cir.2006). Within this rubric, abstract legal questions are reviewed de novo with the understanding that a material error of law is always an abuse of discretion. United States v. Snyder, 136 F.3d 65, 67 (1st Cir.1998).

In this case the expert witness, Dr. Ball, was prepared to testify that the appellant did not have major mental illness, antisocial personality traits, sexual deviance, or prurient interest in children of any age. The appellant advances three related objections to the exclusion of her testimony. He asseverates that the court applied an incorrect legal standard, that it undervalued the probative worth of the proffered evidence while simultaneously overvaluing its potential as a source of jury confusion, and that the order in limine infringed on his constitutionally assured right to present a defense. We examine each component of this asseverational array.

1. Rule 403 Standard. The appellant's plaint that the district court failed to apply the correct legal standard does not withstand scrutiny. This plaint focuses on language in Rule 403 that states: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury...." The appellant suggests that the district court skewed this standard by considering whether the prejudicial effect of the evidence merely outweighed its probative value, rather than whether the former substantially outweighed the latter. This *11 argument rests almost exclusively on the court's statement, in the order granting the motion in limine, that the evidence's "probative value is outweighed by the danger of confusion of the issues or misleading the jury." To the appellant's way of thinking, the court's failure to use the modifying adverb "substantially" reflects that it applied an incorrect standard.

We disagree. Elsewhere in the same order, the court quoted the pertinent language of Rule 403, correctly describing the "substantially outweighed" benchmark. Nothing in the court's discussion indicates that it ignored that articulated standard when balancing the competing interests and deciding to exclude Dr. Ball's testimony. Where, as here, a court's fidelity to the proper legal standard is fairly discernable from the whole of an order, we will not infer the worst from a misspoken word or misplaced phrase. See, e.g., United States v. Pelletier, 469 F.3d 194, 204 (1st Cir.2006); Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1088 (1st Cir.1993). So long as its overall meaning is clear, each word of a court's decision need not be precise to the point of pedantry.

2. Balancing. We turn next to the appellant's claim that the district court miscalibrated the balance between probative value and potential jury confusion. To begin, evidence that bears on the question of motive ordinarily has some probative value in a criminal case. See, e.g., United States v. MacPherson, 424 F.3d 183, 185 n. 2 (2d Cir.2005); United States v. Smith, 292 F.3d 90, 100 (1st Cir.2002). The district court recognized this connection, stating that evidence of the appellant's "lack of interest in images of children makes it somewhat less likely that he was searching for child pornography." On the same basis, the proffered testimony had some probative value with respect to the issue of intent. See United States v. Varoudakis, 233 F.3d 113, 120 (1st Cir.2000) ("[P]roof of motive must be offered to show some other element, for example, ... the accused's requisite mental state.")

Here, however, the appropriate analysis is more nuanced. In enacting the federal child pornography statute, Congress proscribed certain conduct without regard to the underlying motive. See United States v. Dyer, 589 F.3d 520, 529 (1st Cir.2009); United States v. Matthews, 209 F.3d 338, 350-52 (4th Cir.2000). Thus, other courts have upheld evidentiary rulings excluding evidence of lack of motive in cases brought under the statute of conviction. Of particular note is United States v. Wallenfang, 568 F.3d 649 (8th Cir.2009), in which the Eighth Circuit upheld the exclusion of expert testimony about the defendant's psychosexual proclivities, offered to show lack of motive, because his motive for possessing child pornography was "immaterial and irrelevant" and the relevant inquiry was instead "whether, on their face, [the pictures] appear to be of a sexual character." Id. at 660 (quoting United States v. Kemmerling, 285 F.3d 644, 646 (8th Cir.2002)).

In this case, the relevant images plainly appeared to be child pornography. Moreover, the appellant admitted possessing them. The key question, then, centered on his intent, that is, whether he knowingly received and possessed them. Under these circumstances, the proffered testimony was of diminished relevance. The district court appears to have appreciated this distinction, noting the likelihood that Dr. Ball's testimony, if admitted, might well "shift attention away from [a] key question—whether defendant had knowledge of the contents of the videos—to a wholly irrelevant one—whether or not he is a pedophile." While the two inquiries are more intertwined than the district court's analysis might suggest, we agree *12 that the proposed testimony was likely to confuse the jury and divert its attention from the central question in the case.

The fact that the excluded evidence took the form of expert testimony figures conspicuously in the decisional calculus. Qualified expert witnesses generally may offer opinion testimony if that testimony "will assist the trier of fact to understand the evidence or to determine a fact in issue." Fed.R.Evid. 702. But expert testimony remains subject to exclusion under Rule 403. See United States v. Montas, 41 F.3d 775, 783 (1st Cir.1994). Indeed, such evidence presents a special level of complexity in constructing the balance between probative value and unfairly prejudicial effect. This complexity arises out of the concern that, because of an expert's stature qua expert, jurors may assign more weight to expert testimony than it deserves. See United States v. Rodríguez-Berríos, 573 F.3d 55, 72 (1st Cir.2009). Because such testimony can carry with it an unwarranted "aura of special reliability and trustworthiness," United States v. Fosher, 590 F.2d 381, 383 (1st Cir.1979), courts must guard against letting it intrude in areas that jurors, by dint of common experience, are uniquely competent to judge without the aid of experts. This concern, where pertinent, should legitimately factor into a trial court's Rule 403 analysis. See, e.g., Montas, 41 F.3d at 784.

So it is here. The intent issue in this case presents the type of judgment that jurors historically have made without the assistance of expert testimony. It follows, we think, that the proffered testimony presented a special risk of jury confusion.

In arguing against exclusion, the appellant relies heavily on United States v. Shay, 57 F.3d 126 (1st Cir.1995), in which we concluded that the district court erred in excluding, under Rule 702, expert testimony from a psychiatrist who was prepared to testify that the defendant suffered from a recognized mental disorder that caused him to tell self-aggrandizing lies in order to place himself at the center of attention. Id. at 129-30, 133-34. But Shay and the case at hand are not fair congeners. First, the court in Shay focused on Rule 702, not Rule 403. Second—and more important—the proffers in the two cases were quite different. In Shay, the expert testimony, if believed, would have exculpated the defendant, conclusively explaining away what appeared to be damning admissions on which the government's case relied. See id. at 133. In this case, however, the proffered expert testimony was much more peripheral; at best, it may have borne on the appellant's lack of motive and thus, indirectly, on the question of whether he had the level of knowledge required by the statute. A jury, accepting everything that Dr. Ball had to say, could very well have convicted the appellant anyway.

"Where (as here) a piece of evidence is determined to be relevant, the district court has wide discretion in steadying the Rule 403 seesaw." Onujiogu v. United States, 817 F.2d 3, 6 (1st Cir.1987). "Only rarely—and in extraordinarily compelling circumstances—will we, from the vista of a cold appellate record, reverse a district court's on-the-spot judgment concerning the relative weighing of probative value and unfair effect." Freeman v. Package Mach. Co., 865 F.2d 1331, 1340 (1st Cir.1988). Whether the danger of jury confusion here substantially outweighs the probative value of Dr. Ball's testimony is fairly debatable, but the very closeness of the question favors the district court's reconciliation of the competing centrifugal and centripetal forces. Consequently, this is not one of the rare cases in which appellate intervention is justified. *13 Given the circumstances of this case, the district court's ruling was within the universe of reasonable decisions and, thus, was not an abuse of discretion.

3. Constitutional Claim. It is a bedrock principle that a criminal defendant's right "to offer witnesses in his defense is a fundamental component of due process." United States v. Brown, 500 F.3d 48, 57 (1st Cir.2007) (citing Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967)). But "the mere assertion of that right does not automatically and inevitably ensure the admissibility of the proffered testimony." Id. (citing Taylor v. Illinois, 484 U.S. 400, 414-15, 108 S. Ct. 646, 98 L. Ed. 2d 798 (1988)). In particular, the right to present a defense does not trump valid rules of evidence.

Here, our conclusion that the district court did not abuse its discretion in excluding the proffered expert testimony undermines the appellant's constitutional claim. This exclusionary decision fell within the ambit of discretion afforded under Rule 403. The appellant has not developed any argument that meaningfully distinguishes his constitutional claim from his more generic assertion, previously rejected, that the district court abused its discretion in excluding Dr. Ball's testimony. Nor does he argue that Rule 403 itself offends the Constitution.

To say more about this claim would be supererogatory. We hold, without serious question, that the exclusion of the evidence did not abridge the appellant's constitutional right to present a defense. See Rodríguez-Berríos, 573 F.3d at 72 n. 16.

C. Prosecutorial Misconduct.

The appellant argues that prosecutorial misstatements during closing argument entitle him to a new trial. He lodged contemporaneous objections to only two of the statements that he identifies. As to those two statements, our review is de novo. United States v. Ayala-García, 574 F.3d 5, 16 (1st Cir.2009). The remainder of the statements engender review for plain error. United States v. Sánchez-Berríos, 424 F.3d 65, 73 (1st Cir.2005). We therefore analyze the statements in two groups.

1. Preserved Claims. During the summation, the appellant objected to the following statement by the prosecutor:

[I]n this case knowing possession is essentially conceded. In the opening statement by defense counsel and in defendant's own words, he told you he knew he had child pornography on his computer.
The appellant protests that this assertion erroneously equates "knowing" in the colloquial sense of "being aware" with the legal definition that applies to the charges brought in this case.

The prosecutor's statement must be evaluated in conjunction with the law applicable to the case. To be found guilty of knowing possession, an individual need only have known that there was child pornography on his computer yet declined to delete it. United States v. Carani, 492 F.3d 867, 875 (7th Cir.2007). He need not know the material's character at the moment that he downloads it, as long as he thereafter learns its character and nevertheless retains it. Id. Evidence of a defendant's awareness that computer files contain child pornography is adequate to show that he knowingly possessed that material. United States v. Hilton, 257 F.3d 50, 54 (1st Cir.2001).

In the instant case, the appellant admitted that he was aware that there were files containing child pornography on his computer and that at least some of them had not been deleted. The prosecutor's *14 statement was, therefore, an accurate rendition of both the law and the record. Consequently, the district court did not err in overruling the appellant's objection to it.

The appellant also objected to the prosecutor's assertion that the appellant told the FBI agents "that he viewed five `Vicki willing' files." He protests that this statement was inconsistent with Agent De Lair's testimony that the appellant had stated that "there were approximately five videos associated with the `Vicki willing' link." That testimony, the appellant says, did not clearly indicate that he actually viewed the videos. The appellant's complaint, however, overlooks entirely testimony from Agent Zinn, who stated that the appellant "estimated that he saw about— approximately five videos that were related to `Vicki willing.'" Agent Zinn's testimony made multiple references to videos and images that the appellant told him that he "saw" and included descriptions of the contents of these files, indicating that the appellant had actually viewed them. The prosecutor's statement regarding the "Vicki" videos was thus a fair characterization of the agents' testimony, taken in context.

Viewed against this backdrop, the appellant's objection was appropriately overruled.

2. Unpreserved Claims. We can deal swiftly with the remainder of the challenged statements (which we review only for plain error). To establish plain error, an appellant must make four showings: "(1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant's substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings." United States v. Duarte, 246 F.3d 56, 60 (1st Cir.2001). He must satisfy all of these requirements in order to obtain relief. Sánchez-Berríos, 424 F.3d at 73. This is a daunting standard: "under plain error review, we have leeway to correct only the most egregious of unpreserved errors." Id.

When determining whether alleged prosecutorial misstatements sink to the level of plain error, we evaluate the statements within the context of the case as a whole. United States v. Morales-Cartagena, 987 F.2d 849, 854 (1st Cir. 1993). We will intervene only if a statement "so poisoned the well that the trial's outcome was likely affected." United States v. Taylor, 54 F.3d 967, 977 (1st Cir.1995) (quoting United States v. Mejia-Lozano, 829 F.2d 268, 274 (1st Cir.1987)). "We are guided in making this determination by a number of factors, including the frequency and deliberateness of the prosecutor's comments, the strength and clarity of the trial judge's instructions, and the strength of the government's case against the defendant." Morales-Cartagena, 987 F.2d at 854.

We need not recount in detail the statements about which the appellant now complains. For present purposes, it suffices to say that we have reviewed each of them in the context of the record as a whole. Most involve instances in which the prosecutor asked jurors to draw inferences from the evidence. It is eminently proper for a prosecutor—like any other lawyer—to attempt to persuade the jury to draw reasonable inferences favorable to her case. United States v. O'Shea, 426 F.3d 475, 485 (1st Cir.2005); United States v. Hamie, 165 F.3d 80, 84 (1st Cir.1999). With one possible exception, the challenged statements fell within this safe harbor.

The only statement that requires specific comment involves a misquotation of the appellant's voicemail message. The *15 prosecutor told the jury that in this message the appellant said, "I got caught. I'm sorry." Those precise words were never spoken. At best the prosecutor's account was a rough paraphrase of what the appellant had said.

There is nothing in the record, however, to indicate that this misquotation was deliberate. Moreover, the likelihood of harm was minuscule. A recording of the voicemail message was introduced into evidence, and the jury took it into the jury room. This is particularly important because the court instructed the jurors that the statements of counsel were not evidence but, rather, that their recollection of the evidence, not the lawyers' recollections, should control. We have noted before, and today reaffirm, that such a prophylactic instruction is a significant safeguard against an advocate's tendency to confuse what a witness actually said with what he wished the witness had said. See, e.g., United States v. Ortiz, 447 F.3d 28, 36 (1st Cir.2006); Morales-Cartagena, 987 F.2d at 855.

In the circumstances of this case, we discern nothing approximating plain error. There is no realistic possibility that this isolated comment made the slightest difference in the outcome.

D. Multiplicity.

Finally, the appellant posits that he is entitled to a new trial on count two because counts one and two of the indictment were multiplicitous. Specifically, he says that the government failed to offer evidence to show that the two video files alleged to have been received on or about October 21, 2006 (each of which was the basis of a discrete count) were downloaded in separate and distinct transactions. Assuming for argument's sake that this challenge remains open,[3] it fails on the merits.

"A district court's disposition of a Rule 33 motion for a new trial in a criminal case is ordinarily a `judgment call.'" United States v. Connolly, 504 F.3d 206, 211 (1st Cir.2007) (quoting United States v. Maldonado-Rivera, 489 F.3d 60, 65 (1st Cir.2007)). Such a ruling engenders review for abuse of discretion. Id. Here, however, the appellant's thesis depends on an abstract question of law, which we review de novo. See United States v. Huddleston, 194 F.3d 214, 218 (1st Cir.1999); see also Snyder, 136 F.3d at 67.

The rule against multiplicitous prosecutions is grounded in the Double Jeopardy Clause, which "protects against multiple punishments for the same offense." Illinois v. Vitale, 447 U.S. 410, 415, 100 S. Ct. 2260, 65 L. Ed. 2d 228 (1980) (quoting North Carolina v. Pearce, 395 U.S. 711, 717,  89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969)). When an indictment includes multiple counts charging a violation of the same statutory provision and a claim of multiplicity is raised, an inquiring court must determine whether the facts undergirding each count can be treated as a distinct unit of prosecution. See United States v. Hinkeldey, 626 F.3d 1010, 1013 (8th Cir.2010); cf. United States v. LeMoure, 474 F.3d 37, 43 (1st Cir.2007) (observing, with respect to claim of multiplicity, that "[m]ultiple punishments for the same offense ... are permissible if the legislature so intended"). "The critical inquiry is whether Congress intended to punish each statutory violation separately." Jeffers v. United States, 432 U.S. 137, 155, 97 S. Ct. 2207, 53 L. Ed. 2d 168 (1977).

*16 Counts one and two both charged the appellant with attempted receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2), which makes it unlawful to "knowingly receive[] ... any visual depiction" involving "the use of a minor engaging in sexually explicit conduct."[4] The record contains no evidence that might establish that the two files at issue here were received in separate and distinct transactions. The government appears to concede that the allowable unit of prosecution for the appellant's attempted receipt of videos containing child pornography, on a single day and without proof of multiple transactions, is one, not two. See United States v. Polouizzi, 564 F.3d 142, 158 (2d Cir.2009) (concluding that the rule of lenity requires that a person who receives multiple prohibited images in a single transaction can only be charged with one violation under section 2252(a)(2)). Thus, there is a credible basis for a multiplicity claim.

The potential for such a claim dissipated, however, once the jury acquitted the appellant on count one and convicted him on count two. This split decision eliminated any prospect of double jeopardy. That makes a dispositive difference.

The appellant attempts to blunt the impact of this split decision by suggesting that, had the district court recognized the multiplicity concern when that concern was first voiced (at the close of the government's case in chief), the government would have been compelled to elect between counts one and two—and it might have guessed wrong as to which count it should jettison. This suggestion misses the mark.

There is no inflexible rule that the exclusive remedy for multiplicitous counts is election between them. See Ball v. United States, 470 U.S. 856, 864,  105 S. Ct. 1668, 84 L. Ed. 2d 740 (1985). Requiring election is one option, but not the only option; the court may, for example, simply vacate both the conviction and the sentence as to all but one count, essentially merging the offending counts. See, e.g., id.; United States v. Lilly, 983 F.2d 300, 306 (1st Cir.1992). This flexible approach makes good sense because "the Double Jeopardy Clause does not protect against simultaneous prosecutions for the same offense, so long as no more than one punishment is eventually imposed." United States v. Josephberg, 459 F.3d 350, 355 (2d Cir.2006) (per curiam).

In the case at hand, the appellant was convicted and sentenced on only one of the two purportedly multiplicitous counts. Consequently, his rights under the Double Jeopardy Clause were not infracted. See id. That fact is fatal to the thesis that he advances here: a multiplicity claim is necessarily premised on double jeopardy concerns, and where such concerns have been eliminated, the multiplicity claim evaporates. The court below did not err in denying the appellant's motion for a new trial predicated on this ground.

III. CONCLUSION

We need go no further. For the reasons elucidated above, the appellant's challenges come to naught.

Affirmed.

NOTES

[*] Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation.

[1] Although this phraseology seems odd, we think that the jury reasonably could have inferred from it that the appellant downloaded the results of five or six searches each week.

[2] The file name was: "cp tvg 13 Bond 10-11-12Yo Childlover Little Collection Video 0039 Girl-Vicky String Bikini Pthc 11Yo Pedofilia.mpg."

[3] The government asserts that this challenge was waived by the appellant's failure to attack the indictment prior to trial. See Fed. R.Crim.P. 12(b)(3)(B). We take no view on the waiver question.

[4] Each count also mentions 18 U.S.C. § 2252(b)(1), which criminalizes the attempted violation of section 2252(a)(2). This additional reference is of no consequence in the multiplicity analysis.

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text: At

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text: another

text: FBI

text: agent

text: Sarah

text: De

text: Lair

text: took

text: charge

text: After

text: performing

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text: of

text: her

text: own

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text: obtained

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text: appellant

text: s

text: home

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text: April

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text: Lair

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text: conversed

text: with

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text: appellant

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text: rights

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text: De

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text: He

text: initially

text: stated

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text: he

text: did

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text: any

text: child

text: pornography

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text: acknowledged

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text: file

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text: the

text: actual

text: contents

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text: used

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text: LimeWire

text: program

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text: images

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text: World

text: Trade

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text: downloading

text: some

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text: clicked

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text: a

text: link

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text: Vicki

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text: video

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text: to

text: nine

text: years

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text: in

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text: adult

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text: observed

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text: appellant

text: estimated

text: that

text: he

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text: five

text: videos

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text: Vicki

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text: the

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text: interview

text: the

text: appellant

text: admitted

text: to

text: using

text: search

text: terms

text: such

text: as

text: Lolita

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text: young

text: preteen

text: He

text: also

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text: searches

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text: files

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text: depicted

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text: De

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text: showed

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text: files

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text: that

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text: Mitchell

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text: appellant

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text: that

text: he

text: recognized

text: the

text: titles

text: but

text: not

text: the

text: descriptions

text: Queried

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text: he

text: was

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text: to

text: child

text: pornography

text: the

text: appellant

text: said

text: that

text: he

text: was

text: uncomfortable

text: with

text: the

text: term

text: attracted

text: but

text: admitted

text: that

text: he

text: had

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text: interested

text: in

text: child

text: pornography

text: specifically

text: images

text: depicting

text: seven

text: to

text: ten

text: year

text: old

text: children

text: for

text: at

text: least

text: a

text: year

text: Elaborating

text: on

text: this

text: point

text: he

text: noted

text: that

text: he

text: looked

text: at

text: pornographic

text: images

text: of

text: children

text: three

text: or

text: four

text: times

text: per

text: week

text: and

text: that

text: he

text: downloaded

text: five

text: to

text: six

text: such

text: images

text: once

text: or

text: twice

text: per

text: week

text: As

text: fruits

text: of

text: the

text: search

text: the

text: agents

text: seized

text: two

text: computers

text: A

text: forensic

text: examination

text: of

text: one

text: computer

text: s

text: hard

text: drive

text: revealed

text: among

text: other

text: files

text: containing

text: child

text: pornography

text: in

text: the

text: appellant

text: s

text: LimeWire

text: shared

text: files

text: folder

text: the

text: two

text: videos

text: that

text: Agent

text: Mitchell

text: had

text: downloaded

text: These

text: two

text: video

text: files

text: each

text: of

text: which

text: forms

text: the

text: basis

text: for

text: a

text: separate

text: count

text: in

text: the

text: indictment

text: bore

text: a

text: creation

text: date

text: of

text: October

text: Nearly

text: a

text: year

text: after

text: the

text: search

text: Agent

text: De

text: Lair

text: tried

text: to

text: interview

text: the

text: appellant

text: s

text: sister

text: at

text: the

text: sister

text: s

text: residence

text: By

text: happenstance

text: she

text: encountered

text: the

text: appellant

text: who

text: told

text: her

text: that

text: if

text: he

text: had

text: known

text: either

text: that

text: it

text: was

text: wrong

text: or

text: that

text: anyone

text: was

text: watching

text: he

text: would

text: not

text: have

text: downloaded

text: the

text: files

text: Later

text: he

text: left

text: a

text: voice

text: message

text: for

text: De

text: Lair

text: in

text: which

text: he

text: indicated

text: that

text: he

text: had

text: made

text: a

text: mistake

text: by

text: having

text: the

text: materials

text: on

text: his

text: computer

text: The

text: government

text: introduced

text: a

text: recording

text: of

text: this

text: voice

text: message

text: at

text: trial

text: The

text: appellant

text: testified

text: in

text: his

text: own

text: defense

text: His

text: account

text: of

text: these

text: interactions

text: diverged

text: from

text: the

text: agents

text: accounts

text: in

text: some

text: respects

text: We

text: summarize

text: portions

text: of

text: his

text: version

text: of

text: what

text: he

text: told

text: the

text: agents

text: The

text: appellant

text: maintained

text: that

text: he

text: had

text: used

text: LimeWire

text: to

text: search

text: for

text: adult

text: pornography

text: and

text: sometimes

text: would

text: inadvertently

text: come

text: across

text: child

text: pornography

text: If

text: he

text: opened

text: a

text: video

text: that

text: turned

text: out

text: to

text: be

text: child

text: pornography

text: he

text: would

text: click

text: out

text: of

text: it

text: While

text: he

text: admitted

text: using

text: search

text: terms

text: like

text: Lolita

text: he

text: did

text: not

text: understand

text: them

text: to

text: be

text: associated

text: with

text: child

text: pornography

text: He

text: viewed

text: the

text: video

text: entitled

text: Vicki

text: willing

text: and

text: clicked

text: out

text: of

text: it

text: He

text: did

text: not

text: however

text: delete

text: it

text: He

text: never

text: searched

text: for

text: child

text: pornography

text: or

text: intentionally

text: downloaded

text: any

text: child

text: pornography

text: The

text: appellant

text: did

text: admit

text: to

text: having

text: told

text: the

text: agents

text: that

text: there

text: was

text: child

text: pornography

text: on

text: his

text: computer

text: but

text: explained

text: that

text: there

text: were

text: also

text: other

text: items

text: on

text: the

text: computer

text: that

text: he

text: did

text: not

text: want

text: and

text: had

text: not

text: sought

text: He

text: denied

text: having

text: said

text: that

text: he

text: was

text: interested

text: in

text: child

text: pornography

text: He

text: had

text: used

text: LimeWire

text: for

text: only

text: about

text: a

text: year

text: three

text: or

text: four

text: times

text: a

text: week

text: and

text: would

text: download

text: five

text: or

text: six

text: search

text: terms

text: per

text: week

text: but

text: without

text: any

text: intention

text: of

text: searching

text: for

text: or

text: downloading

text: child

text: pornography

text: He

text: denied

text: having

text: told

text: Agent

text: De

text: Lair

text: that

text: he

text: would

text: not

text: have

text: downloaded

text: the

text: images

text: in

text: question

text: had

text: he

text: known

text: either

text: that

text: it

text: was

text: wrong

text: or

text: that

text: someone

text: was

text: watching

text: Finally

text: he

text: tried

text: to

text: explain

text: away

text: the

text: mistake

text: voicemail

text: he

text: had

text: meant

text: to

text: say

text: I

text: made

text: a

text: mistake

text: by

text: having

text: the

text: child

text: pornography

text: on

text: the

text: computer

text: but

text: not

text: intentionally

text: Faced

text: with

text: this

text: chiaroscuro

text: record

text: the

text: jury

text: found

text: the

text: appellant

text: guilty

text: of

text: one

text: count

text: of

text: attempted

text: receipt

text: of

text: child

text: pornography

text: count

text: two

text: and

text: one

text: count

text: of

text: possession

text: of

text: child

text: pornography

text: count

text: three

text: and

text: acquitted

text: him

text: on

text: the

text: other

text: attempted

text: receipt

text: count

text: count

text: one

text: Prior

text: to

text: the

text: submission

text: of

text: the

text: case

text: to

text: the

text: jury

text: the

text: appellant

text: had

text: moved

text: for

text: a

text: judgment

text: of

text: acquittal

text: as

text: to

text: count

text: two

text: See

text: Fed

text: R

text: Crim

text: P

text: a

text: He

text: renewed

text: that

text: motion

text: post

text: verdict

text: see

text: Fed

text: R

text: Crim

text: P

text: c

text: and

text: he

text: simultaneously

text: moved

text: for

text: a

text: new

text: trial

text: see

text: Fed

text: R

text: Crim

text: P

text: a

text: The

text: district

text: court

text: denied

text: both

text: motions

text: and

text: on

text: January

text: sentenced

text: the

text: appellant

text: to

text: a

text: five

text: year

text: incarcerative

text: term

text: This

text: timely

text: appeal

text: followed

text: II

text: ANALYSIS

text: The

text: appellant

text: has

text: briefed

text: four

text: claims

text: of

text: error

text: For

text: ease

text: in

text: exposition

text: we

text: divide

text: our

text: analysis

text: into

text: segments

text: that

text: correspond

text: to

text: these

text: claims

text: We

text: start

text: with

text: the

text: one

text: claim

text: that

text: seeks

text: acquittal

text: and

text: then

text: assay

text: the

text: three

text: claims

text: that

text: seek

text: the

text: granting

text: of

text: a

text: new

text: trial

text: A

text: Sufficiency

text: of

text: the

text: Evidence

text: The

text: appellant

text: contends

text: that

text: as

text: to

text: count

text: two

text: the

text: evidence

text: was

text: insufficient

text: to

text: prove

text: the

text: offense

text: s

text: knowledge

text: and

text: interstate

text: commerce

text: elements

text: We

text: address

text: these

text: contentions

text: sequentially

text: First

text: however

text: we

text: rehearse

text: the

text: standard

text: of

text: review

text: We

text: assess

text: preserved

text: challenges

text: to

text: evidentiary

text: sufficiency

text: de

text: novo

text: considering

text: the

text: evidence

text: in

text: the

text: light

text: most

text: agreeable

text: to

text: the

text: verdict

text: United

text: States

text: v

text: Rodríguez

text: Vélez

text: F

text: d

text: st

text: Cir

text: Our

text: appraisal

text: is

text: aimed

text: at

text: determining

text: whether

text: on

text: this

text: view

text: of

text: the

text: record

text: a

text: reasonable

text: juror

text: could

text: conclude

text: that

text: the

text: government

text: proved

text: each

text: element

text: of

text: the

text: offense

text: beyond

text: a

text: reasonable

text: doubt

text: Jackson

text: v

text: Virginia

text: U

text: S

text: S

text: Ct

text: L

text: Ed

text: d

text: United

text: States

text: v

text: Troy

text: F

text: d

text: st

text: Cir

text: Knowledge

text: The

text: appellant

text: contends

text: that

text: the

text: government

text: failed

text: to

text: introduce

text: evidence

text: sufficient

text: to

text: establish

text: that

text: he

text: knew

text: when

text: he

text: received

text: the

text: relevant

text: video

text: file

text: that

text: it

text: depicted

text: real

text: minors

text: engaged

text: in

text: sexually

text: explicit

text: conduct

text: This

text: contention

text: operates

text: at

text: three

text: different

text: but

text: overlapping

text: levels

text: First

text: the

text: appellant

text: tries

text: to

text: engraft

text: an

text: extra

text: layer

text: of

text: mens

text: rea

text: onto

text: the

text: offense

text: In

text: his

text: view

text: the

text: government

text: by

text: charging

text: that

text: he

text: knowingly

text: attempted

text: to

text: receive

text: the

text: images

text: had

text: to

text: prove

text: that

text: he

text: knew

text: the

text: character

text: of

text: the

text: material

text: at

text: the

text: very

text: moment

text: of

text: its

text: acquisition

text: He

text: insists

text: that

text: when

text: he

text: downloaded

text: the

text: file

text: he

text: was

text: aware

text: only

text: of

text: its

text: title

text: and

text: he

text: refers

text: to

text: testimony

text: presented

text: at

text: trial

text: for

text: the

text: proposition

text: that

text: titles

text: do

text: not

text: always

text: reliably

text: indicate

text: a

text: file

text: s

text: actual

text: contents

text: The

text: appellant

text: believes

text: that

text: this

text: testimony

text: demonstrates

text: that

text: he

text: could

text: not

text: have

text: known

text: the

text: video

text: s

text: actual

text: contents

text: on

text: the

text: basis

text: of

text: its

text: name

text: alone

text: and

text: therefore

text: could

text: not

text: knowingly

text: have

text: attempted

text: to

text: receive

text: it

text: This

text: argument

text: is

text: belied

text: by

text: the

text: language

text: of

text: section

text: a

text: which

text: criminalizes

text: the

text: knowing

text: receipt

text: of

text: child

text: pornography

text: We

text: simply

text: do

text: not

text: see

text: how

text: incorporating

text: the

text: statutory

text: language

text: into

text: the

text: charging

text: document

text: could

text: have

text: elevated

text: the

text: necessary

text: proof

text: beyond

text: the

text: elements

text: required

text: by

text: the

text: statute

text: itself

text: This

text: brings

text: us

text: to

text: the

text: second

text: level

text: of

text: the

text: argument

text: To

text: prove

text: attempt

text: the

text: government

text: must

text: show

text: both

text: that

text: the

text: accused

text: intended

text: to

text: commit

text: the

text: underlying

text: substantive

text: offense

text: here

text: knowing

text: receipt

text: of

text: child

text: pornography

text: and

text: that

text: he

text: took

text: a

text: substantial

text: step

text: toward

text: committing

text: that

text: crime

text: United

text: States

text: v

text: Gobbi

text: F

text: d

text: st

text: Cir

text: But

text: this

text: does

text: not

text: mean

text: that

text: the

text: government

text: bore

text: a

text: burden

text: to

text: prove

text: each

text: element

text: of

text: the

text: underlying

text: offense

text: While

text: the

text: underlying

text: offense

text: in

text: this

text: case

text: requires

text: the

text: receipt

text: of

text: images

text: of

text: real

text: life

text: minors

text: engaged

text: in

text: sexually

text: explicit

text: conduct

text: see

text: United

text: States

text: v

text: McNealy

text: F

text: d

text: nn

text: th

text: Cir

text: citing

text: United

text: States

text: v

text: X

text: Citement

text: Video

text: Inc

text: U

text: S

text: S

text: Ct

text: L

text: Ed

text: d

text: the

text: government

text: in

text: an

text: attempt

text: case

text: has

text: no

text: burden

text: to

text: prove

text: that

text: the

text: appellant

text: knew

text: that

text: the

text: downloaded

text: file

text: actually

text: contained

text: such

text: images

text: Rather

text: the

text: government

text: is

text: required

text: to

text: prove

text: that

text: the

text: appellant

text: believed

text: that

text: the

text: received

text: file

text: contained

text: such

text: images

text: See

text: United

text: States

text: v

text: Bauer

text: F

text: d

text: th

text: Cir

text: No

text: other

text: view

text: of

text: the

text: relevant

text: threshold

text: of

text: proof

text: comports

text: with

text: the

text: Supreme

text: Court

text: s

text: reasoning

text: in

text: United

text: States

text: v

text: Williams

text: U

text: S

text: S

text: Ct

text: L

text: Ed

text: d

text: in

text: which

text: the

text: Court

text: explained

text: that

text: t

text: here

text: is

text: no

text: First

text: Amendment

text: exception

text: from

text: the

text: general

text: principle

text: of

text: criminal

text: law

text: that

text: a

text: person

text: attempting

text: to

text: commit

text: a

text: crime

text: need

text: not

text: be

text: exonerated

text: because

text: he

text: has

text: a

text: mistaken

text: view

text: of

text: the

text: facts

text: Id

text: at

text: S

text: Ct

text: The

text: third

text: layer

text: of

text: the

text: appellant

text: s

text: argument

text: rests

text: on

text: the

text: district

text: court

text: s

text: jury

text: instructions

text: Contrary

text: to

text: what

text: the

text: statute

text: of

text: conviction

text: requires

text: the

text: court

text: told

text: the

text: jury

text: that

text: the

text: government

text: has

text: to

text: prove

text: not

text: just

text: that

text: the

text: defendant

text: voluntarily

text: and

text: intentionally

text: not

text: by

text: mistake

text: received

text: a

text: depiction

text: a

text: video

text: but

text: that

text: he

text: knew

text: at

text: the

text: time

text: of

text: receipt

text: that

text: the

text: production

text: of

text: that

text: video

text: involved

text: the

text: use

text: of

text: a

text: real

text: minor

text: and

text: that

text: the

text: video

text: showed

text: a

text: real

text: minor

text: This

text: instruction

text: plainly

text: overstates

text: the

text: government

text: s

text: burden

text: In

text: circumstances

text: where

text: as

text: here

text: a

text: district

text: court

text: overstates

text: the

text: government

text: s

text: burden

text: of

text: proof

text: to

text: the

text: defendant

text: s

text: benefit

text: in

text: its

text: charge

text: to

text: the

text: jury

text: a

text: reviewing

text: court

text: faced

text: with

text: a

text: challenge

text: to

text: the

text: sufficiency

text: of

text: the

text: evidence

text: must

text: measure

text: that

text: challenge

text: against

text: the

text: correct

text: legal

text: standard

text: not

text: against

text: the

text: erroneous

text: standard

text: set

text: forth

text: in

text: the

text: charge

text: See

text: United

text: States

text: v

text: Bayes

text: F

text: d

text: st

text: Cir

text: With

text: the

text: correct

text: standard

text: as

text: our

text: metric

text: we

text: conclude

text: that

text: the

text: evidence

text: taken

text: in

text: the

text: light

text: most

text: agreeable

text: to

text: the

text: verdict

text: is

text: sufficient

text: to

text: ground

text: the

text: conviction

text: A

text: showing

text: of

text: scienter

text: can

text: and

text: often

text: will

text: be

text: made

text: through

text: circumstantial

text: evidence

text: United

text: States

text: v

text: Hussein

text: F

text: d

text: st

text: Cir

text: Here

text: the

text: jury

text: heard

text: testimony

text: from

text: two

text: FBI

text: agents

text: confirming

text: that

text: by

text: his

text: own

text: admission

text: the

text: appellant

text: deliberately

text: used

text: search

text: terms

text: associated

text: with

text: child

text: pornography

text: such

text: as

text: Lolita

text: and

text: young

text: preteen

text: when

text: trolling

text: on

text: LimeWire

text: This

text: evidence

text: is

text: significant

text: because

text: a

text: defendant

text: s

text: use

text: of

text: search

text: terms

text: associated

text: with

text: child

text: pornography

text: can

text: support

text: a

text: finding

text: that

text: he

text: knew

text: that

text: the

text: images

text: retrieved

text: contained

text: child

text: pornography

text: See

text: McNealy

text: F

text: d

text: at

text: Such

text: an

text: inference

text: is

text: strengthened

text: in

text: this

text: case

text: by

text: the

text: appellant

text: s

text: statement

text: to

text: the

text: agents

text: that

text: those

text: searches

text: yielded

text: videos

text: of

text: children

text: approximately

text: seven

text: or

text: eight

text: years

text: old

text: not

text: doing

text: anything

text: good

text: In

text: addition

text: the

text: appellant

text: admitted

text: to

text: the

text: agents

text: that

text: he

text: had

text: had

text: an

text: interest

text: in

text: child

text: pornography

text: for

text: about

text: a

text: year

text: and

text: that

text: he

text: had

text: looked

text: at

text: child

text: pornography

text: three

text: or

text: four

text: times

text: a

text: week

text: downloading

text: five

text: to

text: six

text: images

text: containing

text: child

text: pornography

text: once

text: or

text: twice

text: a

text: week

text: Nor

text: was

text: this

text: all

text: The

text: title

text: of

text: the

text: file

text: that

text: underbraced

text: count

text: two

text: was

text: highly

text: suggestive

text: of

text: child

text: pornography

text: Taking

text: this

text: tapestry

text: of

text: facts

text: as

text: a

text: whole

text: we

text: believe

text: that

text: the

text: jury

text: reasonably

text: could

text: have

text: inferred

text: that

text: the

text: appellant

text: having

text: seen

text: the

text: name

text: of

text: the

text: file

text: proceeded

text: to

text: download

text: it

text: and

text: that

text: when

text: he

text: did

text: so

text: he

text: was

text: seeking

text: to

text: acquire

text: child

text: pornography

text: Thus

text: the

text: evidence

text: supports

text: a

text: finding

text: that

text: the

text: appellant

text: acted

text: knowingly

text: with

text: respect

text: to

text: count

text: two

text: Interstate

text: Commerce

text: The

text: appellant

text: s

text: complaint

text: that

text: the

text: government

text: failed

text: to

text: prove

text: the

text: interstate

text: commerce

text: element

text: of

text: the

text: offense

text: of

text: conviction

text: that

text: is

text: that

text: the

text: video

text: file

text: he

text: attempted

text: to

text: receive

text: traveled

text: in

text: interstate

text: commerce

text: is

text: squarely

text: foreclosed

text: by

text: circuit

text: precedent

text: See

text: United

text: States

text: v

text: Lewis

text: F

text: d

text: st

text: Cir

text: In

text: Lewis

text: we

text: held

text: that

text: the

text: government

text: proved

text: the

text: images

text: traveled

text: interstate

text: when

text: it

text: introduced

text: evidence

text: that

text: the

text: defendant

text: received

text: images

text: that

text: were

text: transmitted

text: over

text: the

text: Internet

text: Id

text: at

text: Given

text: that

text: the

text: video

text: file

text: underlying

text: count

text: two

text: in

text: this

text: case

text: was

text: also

text: transmitted

text: over

text: the

text: Internet

text: the

text: holding

text: in

text: Lewis

text: is

text: of

text: decretory

text: significance

text: For

text: the

text: most

text: part

text: newly

text: constituted

text: panels

text: in

text: a

text: federal

text: appellate

text: court

text: are

text: bound

text: by

text: prior

text: panel

text: decisions

text: closely

text: on

text: point

text: Troy

text: F

text: d

text: at

text: United

text: States

text: v

text: Rodríguez

text: F

text: d

text: st

text: Cir

text: United

text: States

text: v

text: Wogan

text: F

text: d

text: st

text: Cir

text: Although

text: this

text: permutation

text: of

text: the

text: doctrine

text: of

text: stare

text: decisis

text: does

text: not

text: constitute

text: an

text: immutable

text: rule

text: Carpenters

text: Local

text: Union

text: No

text: v

text: U

text: S

text: Fid

text: Guar

text: Co

text: F

text: d

text: st

text: Cir

text: it

text: is

text: subject

text: to

text: only

text: a

text: few

text: narrowly

text: cabined

text: exceptions

text: Troy

text: F

text: d

text: at

text: San

text: Juan

text: Cable

text: LLC

text: v

text: P

text: R

text: Tel

text: Co

text: F

text: d

text: st

text: Cir

text: To

text: be

text: specific

text: a

text: departure

text: from

text: circuit

text: precedent

text: is

text: warranted

text: only

text: where

text: the

text: previous

text: holding

text: is

text: contradicted

text: by

text: controlling

text: authority

text: subsequently

text: announced

text: say

text: a

text: decision

text: of

text: the

text: authoring

text: court

text: en

text: banc

text: a

text: Supreme

text: Court

text: opinion

text: directly

text: on

text: point

text: or

text: a

text: legislative

text: overruling

text: Rodríguez

text: F

text: d

text: at

text: or

text: in

text: those

text: relatively

text: rare

text: instances

text: in

text: which

text: authority

text: that

text: postdates

text: the

text: original

text: decision

text: although

text: not

text: directly

text: controlling

text: nevertheless

text: offers

text: a

text: sound

text: reason

text: for

text: believing

text: that

text: the

text: former

text: panel

text: in

text: light

text: of

text: fresh

text: developments

text: would

text: change

text: its

text: collective

text: mind

text: Williams

text: v

text: Ashland

text: Eng

text: g

text: Co

text: F

text: d

text: st

text: Cir

text: The

text: appellant

text: offers

text: no

text: serious

text: claim

text: that

text: any

text: of

text: the

text: exceptions

text: to

text: the

text: law

text: of

text: the

text: circuit

text: rule

text: applies

text: While

text: he

text: points

text: to

text: United

text: States

text: v

text: Schaefer

text: F

text: d

text: th

text: Cir

text: to

text: suggest

text: that

text: our

text: holding

text: in

text: Lewis

text: is

text: incorrect

text: the

text: Tenth

text: Circuit

text: s

text: decision

text: in

text: Schaefer

text: predates

text: Lewis

text: Consequently

text: it

text: does

text: not

text: trigger

text: any

text: of

text: the

text: isthmian

text: exceptions

text: to

text: the

text: law

text: of

text: the

text: circuit

text: rule

text: That

text: ends

text: this

text: aspect

text: of

text: the

text: matter

text: The

text: holding

text: in

text: Lewis

text: that

text: evidence

text: showing

text: that

text: images

text: were

text: received

text: via

text: the

text: Internet

text: is

text: sufficient

text: to

text: satisfy

text: the

text: interstate

text: commerce

text: element

text: under

text: U

text: S

text: C

text: a

text: applies

text: here

text: Hence

text: the

text: evidence

text: of

text: the

text: appellant

text: s

text: use

text: of

text: the

text: Internet

text: to

text: procure

text: files

text: via

text: LimeWire

text: is

text: sufficient

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text: ground

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text: finding

text: that

text: the

text: interstate

text: commerce

text: element

text: of

text: the

text: offense

text: was

text: satisfied

text: B

text: Exclusion

text: of

text: Expert

text: Testimony

text: During

text: pretrial

text: proceedings

text: the

text: government

text: moved

text: to

text: exclude

text: certain

text: expert

text: testimony

text: that

text: the

text: appellant

text: proposed

text: to

text: present

text: at

text: trial

text: This

text: testimony

text: was

text: to

text: come

text: from

text: a

text: forensic

text: psychologist

text: Dr

text: Carol

text: Ball

text: Her

text: report

text: stated

text: in

text: pertinent

text: part

text: that

text: the

text: appellant

text: was

text: free

text: of

text: major

text: mental

text: illness

text: antisocial

text: personality

text: traits

text: and

text: sexual

text: deviance

text: and

text: was

text: not

text: a

text: pedophile

text: or

text: sexual

text: psychopath

text: The

text: parties

text: sharply

text: disagreed

text: about

text: the

text: admissibility

text: of

text: this

text: testimony

text: the

text: appellant

text: asserted

text: that

text: it

text: was

text: relevant

text: because

text: it

text: demonstrates

text: the

text: absence

text: of

text: motive

text: for

text: the

text: alleged

text: crimes

text: the

text: government

text: asserted

text: that

text: it

text: was

text: not

text: relevant

text: to

text: any

text: element

text: of

text: the

text: charged

text: crimes

text: The

text: district

text: court

text: found

text: that

text: the

text: proffered

text: testimony

text: might

text: be

text: relevant

text: but

text: that

text: its

text: relevance

text: was

text: outweighed

text: by

text: the

text: danger

text: of

text: confusion

text: of

text: the

text: issues

text: or

text: misleading

text: the

text: jury

text: Citing

text: Federal

text: Rule

text: of

text: Evidence

text: the

text: court

text: granted

text: the

text: motion

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text: limine

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text: later

text: denied

text: a

text: motion

text: for

text: reconsideration

text: The

text: appellant

text: assigns

text: error

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text: the

text: exclusion

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text: this

text: testimony

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text: review

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text: trial

text: court

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text: decision

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text: exclude

text: evidence

text: for

text: abuse

text: of

text: discretion

text: United

text: States

text: v

text: Stierhoff

text: F

text: d

text: st

text: Cir

text: United

text: States

text: v

text: Zaccaria

text: F

text: d

text: st

text: Cir

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text: deferential

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text: substituting

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text: district

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text: obvious

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text: Torres

text: Arroyo

text: v

text: Rullán

text: F

text: d

text: st

text: Cir

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text: this

text: rubric

text: abstract

text: legal

text: questions

text: are

text: reviewed

text: de

text: novo

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text: the

text: understanding

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text: a

text: material

text: error

text: of

text: law

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text: always

text: an

text: abuse

text: of

text: discretion

text: United

text: States

text: v

text: Snyder

text: F

text: d

text: st

text: Cir

text: In

text: this

text: case

text: the

text: expert

text: witness

text: Dr

text: Ball

text: was

text: prepared

text: to

text: testify

text: that

text: the

text: appellant

text: did

text: not

text: have

text: major

text: mental

text: illness

text: antisocial

text: personality

text: traits

text: sexual

text: deviance

text: or

text: prurient

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text: children

text: of

text: any

text: age

text: The

text: appellant

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text: three

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text: objections

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text: the

text: exclusion

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text: her

text: testimony

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text: asseverates

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text: the

text: court

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text: an

text: incorrect

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text: standard

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text: it

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text: probative

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text: the

text: proffered

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text: simultaneously

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text: potential

text: as

text: a

text: source

text: of

text: jury

text: confusion

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text: that

text: the

text: order

text: in

text: limine

text: infringed

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text: constitutionally

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text: present

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text: defense

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text: examine

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text: this

text: asseverational

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text: Rule

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text: appellant

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text: plaint

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text: the

text: district

text: court

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text: the

text: correct

text: legal

text: standard

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text: withstand

text: scrutiny

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text: plaint

text: focuses

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text: language

text: in

text: Rule

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text: states

text: Although

text: relevant

text: evidence

text: may

text: be

text: excluded

text: if

text: its

text: probative

text: value

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text: the

text: danger

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text: unfair

text: prejudice

text: confusion

text: of

text: the

text: issues

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text: misleading

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text: jury

text: The

text: appellant

text: suggests

text: that

text: the

text: district

text: court

text: skewed

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text: standard

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text: considering

text: whether

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text: prejudicial

text: effect

text: of

text: the

text: evidence

text: merely

text: outweighed

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text: probative

text: value

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text: than

text: whether

text: the

text: former

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text: the

text: latter

text: This

text: argument

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text: almost

text: exclusively

text: on

text: the

text: court

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text: statement

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text: the

text: order

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text: the

text: motion

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text: the

text: evidence

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text: probative

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text: outweighed

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text: danger

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text: confusion

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text: issues

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text: misleading

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text: jury

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text: the

text: appellant

text: s

text: way

text: of

text: thinking

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text: failure

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text: use

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text: modifying

text: adverb

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text: same

text: order

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text: pertinent

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text: Rule

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text: standard

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text: balancing

text: the

text: competing

text: interests

text: and

text: deciding

text: to

text: exclude

text: Dr

text: Ball

text: s

text: testimony

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text: court

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text: fidelity

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text: the

text: whole

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text: order

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text: worst

text: from

text: a

text: misspoken

text: word

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text: misplaced

text: phrase

text: See

text: e

text: g

text: United

text: States

text: v

text: Pelletier

text: F

text: d

text: st

text: Cir

text: Lenn

text: v

text: Portland

text: Sch

text: Comm

text: F

text: d

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text: its

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text: clear

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text: court

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text: decision

text: need

text: not

text: be

text: precise

text: to

text: the

text: point

text: of

text: pedantry

text: Balancing

text: We

text: turn

text: next

text: to

text: the

text: appellant

text: s

text: claim

text: that

text: the

text: district

text: court

text: miscalibrated

text: the

text: balance

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text: probative

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text: potential

text: jury

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text: bears

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text: the

text: question

text: of

text: motive

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text: some

text: probative

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text: a

text: criminal

text: case

text: See

text: e

text: g

text: United

text: States

text: v

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text: F

text: d

text: n

text: d

text: Cir

text: United

text: States

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text: F

text: d

text: st

text: Cir

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text: district

text: court

text: recognized

text: this

text: connection

text: stating

text: that

text: evidence

text: of

text: the

text: appellant

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text: lack

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text: interest

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text: images

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text: somewhat

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text: likely

text: that

text: he

text: was

text: searching

text: for

text: child

text: pornography

text: On

text: the

text: same

text: basis

text: the

text: proffered

text: testimony

text: had

text: some

text: probative

text: value

text: with

text: respect

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text: the

text: issue

text: of

text: intent

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text: United

text: States

text: v

text: Varoudakis

text: F

text: d

text: st

text: Cir

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text: motive

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text: be

text: offered

text: to

text: show

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text: other

text: element

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text: example

text: the

text: accused

text: s

text: requisite

text: mental

text: state

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text: however

text: the

text: appropriate

text: analysis

text: is

text: more

text: nuanced

text: In

text: enacting

text: the

text: federal

text: child

text: pornography

text: statute

text: Congress

text: proscribed

text: certain

text: conduct

text: without

text: regard

text: to

text: the

text: underlying

text: motive

text: See

text: United

text: States

text: v

text: Dyer

text: F

text: d

text: st

text: Cir

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text: F

text: d

text: th

text: Cir

text: Thus

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text: courts

text: have

text: upheld

text: evidentiary

text: rulings

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text: lack

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text: motive

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text: cases

text: brought

text: under

text: the

text: statute

text: of

text: conviction

text: Of

text: particular

text: note

text: is

text: United

text: States

text: v

text: Wallenfang

text: F

text: d

text: th

text: Cir

text: in

text: which

text: the

text: Eighth

text: Circuit

text: upheld

text: the

text: exclusion

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text: expert

text: testimony

text: about

text: the

text: defendant

text: s

text: psychosexual

text: proclivities

text: offered

text: to

text: show

text: lack

text: of

text: motive

text: because

text: his

text: motive

text: for

text: possessing

text: child

text: pornography

text: was

text: immaterial

text: and

text: irrelevant

text: and

text: the

text: relevant

text: inquiry

text: was

text: instead

text: whether

text: on

text: their

text: face

text: the

text: pictures

text: appear

text: to

text: be

text: of

text: a

text: sexual

text: character

text: Id

text: at

text: quoting

text: United

text: States

text: v

text: Kemmerling

text: F

text: d

text: th

text: Cir

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text: this

text: case

text: the

text: relevant

text: images

text: plainly

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text: to

text: be

text: child

text: pornography

text: Moreover

text: the

text: appellant

text: admitted

text: possessing

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text: The

text: key

text: question

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text: his

text: intent

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text: is

text: whether

text: he

text: knowingly

text: received

text: and

text: possessed

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text: Under

text: these

text: circumstances

text: the

text: proffered

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text: of

text: diminished

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text: district

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text: appreciated

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text: distinction

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text: Dr

text: Ball

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text: testimony

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text: attention

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text: defendant

text: had

text: knowledge

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text: contents

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text: the

text: videos

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text: wholly

text: irrelevant

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text: whether

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text: is

text: a

text: pedophile

text: While

text: the

text: two

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text: the

text: district

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text: s

text: analysis

text: might

text: suggest

text: we

text: agree

text: that

text: the

text: proposed

text: testimony

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text: likely

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text: confuse

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text: jury

text: and

text: divert

text: its

text: attention

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text: the

text: central

text: question

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text: the

text: case

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text: fact

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text: the

text: excluded

text: evidence

text: took

text: the

text: form

text: of

text: expert

text: testimony

text: figures

text: conspicuously

text: in

text: the

text: decisional

text: calculus

text: Qualified

text: expert

text: witnesses

text: generally

text: may

text: offer

text: opinion

text: testimony

text: if

text: that

text: testimony

text: will

text: assist

text: the

text: trier

text: of

text: fact

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text: understand

text: the

text: evidence

text: or

text: to

text: determine

text: a

text: fact

text: in

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text: R

text: Evid

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text: expert

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text: to

text: exclusion

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text: Rule

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text: United

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text: F

text: d

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text: Cir

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text: such

text: evidence

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text: special

text: level

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text: complexity

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text: constructing

text: the

text: balance

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text: probative

text: value

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text: unfairly

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text: complexity

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text: concern

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text: expert

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text: stature

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text: United

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text: F

text: d

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text: United

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text: common

text: experience

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text: uniquely

text: competent

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text: judge

text: without

text: the

text: aid

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text: experts

text: This

text: concern

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text: a

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text: the

text: defendant

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text: recognized

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text: caused

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text: expert

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text: jury

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text: very

text: closeness

text: of

text: the

text: question

text: favors

text: the

text: district

text: court

text: s

text: reconciliation

text: of

text: the

text: competing

text: centrifugal

text: and

text: centripetal

text: forces

text: Consequently

text: this

text: is

text: not

text: one

text: of

text: the

text: rare

text: cases

text: in

text: which

text: appellate

text: intervention

text: is

text: justified

text: Given

text: the

text: circumstances

text: of

text: this

text: case

text: the

text: district

text: court

text: s

text: ruling

text: was

text: within

text: the

text: universe

text: of

text: reasonable

text: decisions

text: and

text: thus

text: was

text: not

text: an

text: abuse

text: of

text: discretion

text: Constitutional

text: Claim

text: It

text: is

text: a

text: bedrock

text: principle

text: that

text: a

text: criminal

text: defendant

text: s

text: right

text: to

text: offer

text: witnesses

text: in

text: his

text: defense

text: is

text: a

text: fundamental

text: component

text: of

text: due

text: process

text: United

text: States

text: v

text: Brown

text: F

text: d

text: st

text: Cir

text: citing

text: Washington

text: v

text: Texas

text: U

text: S

text: S

text: Ct

text: L

text: Ed

text: d

text: But

text: the

text: mere

text: assertion

text: of

text: that

text: right

text: does

text: not

text: automatically

text: and

text: inevitably

text: ensure

text: the

text: admissibility

text: of

text: the

text: proffered

text: testimony

text: Id

text: citing

text: Taylor

text: v

text: Illinois

text: U

text: S

text: S

text: Ct

text: L

text: Ed

text: d

text: In

text: particular

text: the

text: right

text: to

text: present

text: a

text: defense

text: does

text: not

text: trump

text: valid

text: rules

text: of

text: evidence

text: Here

text: our

text: conclusion

text: that

text: the

text: district

text: court

text: did

text: not

text: abuse

text: its

text: discretion

text: in

text: excluding

text: the

text: proffered

text: expert

text: testimony

text: undermines

text: the

text: appellant

text: s

text: constitutional

text: claim

text: This

text: exclusionary

text: decision

text: fell

text: within

text: the

text: ambit

text: of

text: discretion

text: afforded

text: under

text: Rule

text: The

text: appellant

text: has

text: not

text: developed

text: any

text: argument

text: that

text: meaningfully

text: distinguishes

text: his

text: constitutional

text: claim

text: from

text: his

text: more

text: generic

text: assertion

text: previously

text: rejected

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text: the

text: district

text: court

text: abused

text: its

text: discretion

text: in

text: excluding

text: Dr

text: Ball

text: s

text: testimony

text: Nor

text: does

text: he

text: argue

text: that

text: Rule

text: itself

text: offends

text: the

text: Constitution

text: To

text: say

text: more

text: about

text: this

text: claim

text: would

text: be

text: supererogatory

text: We

text: hold

text: without

text: serious

text: question

text: that

text: the

text: exclusion

text: of

text: the

text: evidence

text: did

text: not

text: abridge

text: the

text: appellant

text: s

text: constitutional

text: right

text: to

text: present

text: a

text: defense

text: See

text: Rodríguez

text: Berríos

text: F

text: d

text: at

text: n

text: C

text: Prosecutorial

text: Misconduct

text: The

text: appellant

text: argues

text: that

text: prosecutorial

text: misstatements

text: during

text: closing

text: argument

text: entitle

text: him

text: to

text: a

text: new

text: trial

text: He

text: lodged

text: contemporaneous

text: objections

text: to

text: only

text: two

text: of

text: the

text: statements

text: that

text: he

text: identifies

text: As

text: to

text: those

text: two

text: statements

text: our

text: review

text: is

text: de

text: novo

text: United

text: States

text: v

text: Ayala

text: García

text: F

text: d

text: st

text: Cir

text: The

text: remainder

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text: the

text: statements

text: engender

text: review

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text: plain

text: error

text: United

text: States

text: v

text: Sánchez

text: Berríos

text: F

text: d

text: st

text: Cir

text: We

text: therefore

text: analyze

text: the

text: statements

text: in

text: two

text: groups

text: Preserved

text: Claims

text: During

text: the

text: summation

text: the

text: appellant

text: objected

text: to

text: the

text: following

text: statement

text: by

text: the

text: prosecutor

text: I

text: n

text: this

text: case

text: knowing

text: possession

text: is

text: essentially

text: conceded

text: In

text: the

text: opening

text: statement

text: by

text: defense

text: counsel

text: and

text: in

text: defendant

text: s

text: own

text: words

text: he

text: told

text: you

text: he

text: knew

text: he

text: had

text: child

text: pornography

text: on

text: his

text: computer

text: The

text: appellant

text: protests

text: that

text: this

text: assertion

text: erroneously

text: equates

text: knowing

text: in

text: the

text: colloquial

text: sense

text: of

text: being

text: aware

text: with

text: the

text: legal

text: definition

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text: applies

text: to

text: the

text: charges

text: brought

text: in

text: this

text: case

text: The

text: prosecutor

text: s

text: statement

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text: be

text: evaluated

text: in

text: conjunction

text: with

text: the

text: law

text: applicable

text: to

text: the

text: case

text: To

text: be

text: found

text: guilty

text: of

text: knowing

text: possession

text: an

text: individual

text: need

text: only

text: have

text: known

text: that

text: there

text: was

text: child

text: pornography

text: on

text: his

text: computer

text: yet

text: declined

text: to

text: delete

text: it

text: United

text: States

text: v

text: Carani

text: F

text: d

text: th

text: Cir

text: He

text: need

text: not

text: know

text: the

text: material

text: s

text: character

text: at

text: the

text: moment

text: that

text: he

text: downloads

text: it

text: as

text: long

text: as

text: he

text: thereafter

text: learns

text: its

text: character

text: and

text: nevertheless

text: retains

text: it

text: Id

text: Evidence

text: of

text: a

text: defendant

text: s

text: awareness

text: that

text: computer

text: files

text: contain

text: child

text: pornography

text: is

text: adequate

text: to

text: show

text: that

text: he

text: knowingly

text: possessed

text: that

text: material

text: United

text: States

text: v

text: Hilton

text: F

text: d

text: st

text: Cir

text: In

text: the

text: instant

text: case

text: the

text: appellant

text: admitted

text: that

text: he

text: was

text: aware

text: that

text: there

text: were

text: files

text: containing

text: child

text: pornography

text: on

text: his

text: computer

text: and

text: that

text: at

text: least

text: some

text: of

text: them

text: had

text: not

text: been

text: deleted

text: The

text: prosecutor

text: s

text: statement

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text: therefore

text: an

text: accurate

text: rendition

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text: both

text: the

text: law

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text: the

text: record

text: Consequently

text: the

text: district

text: court

text: did

text: not

text: err

text: in

text: overruling

text: the

text: appellant

text: s

text: objection

text: to

text: it

text: The

text: appellant

text: also

text: objected

text: to

text: the

text: prosecutor

text: s

text: assertion

text: that

text: the

text: appellant

text: told

text: the

text: FBI

text: agents

text: that

text: he

text: viewed

text: five

text: Vicki

text: willing

text: files

text: He

text: protests

text: that

text: this

text: statement

text: was

text: inconsistent

text: with

text: Agent

text: De

text: Lair

text: s

text: testimony

text: that

text: the

text: appellant

text: had

text: stated

text: that

text: there

text: were

text: approximately

text: five

text: videos

text: associated

text: with

text: the

text: Vicki

text: willing

text: link

text: That

text: testimony

text: the

text: appellant

text: says

text: did

text: not

text: clearly

text: indicate

text: that

text: he

text: actually

text: viewed

text: the

text: videos

text: The

text: appellant

text: s

text: complaint

text: however

text: overlooks

text: entirely

text: testimony

text: from

text: Agent

text: Zinn

text: who

text: stated

text: that

text: the

text: appellant

text: estimated

text: that

text: he

text: saw

text: about

text: approximately

text: five

text: videos

text: that

text: were

text: related

text: to

text: Vicki

text: willing

text: Agent

text: Zinn

text: s

text: testimony

text: made

text: multiple

text: references

text: to

text: videos

text: and

text: images

text: that

text: the

text: appellant

text: told

text: him

text: that

text: he

text: saw

text: and

text: included

text: descriptions

text: of

text: the

text: contents

text: of

text: these

text: files

text: indicating

text: that

text: the

text: appellant

text: had

text: actually

text: viewed

text: them

text: The

text: prosecutor

text: s

text: statement

text: regarding

text: the

text: Vicki

text: videos

text: was

text: thus

text: a

text: fair

text: characterization

text: of

text: the

text: agents

text: testimony

text: taken

text: in

text: context

text: Viewed

text: against

text: this

text: backdrop

text: the

text: appellant

text: s

text: objection

text: was

text: appropriately

text: overruled

text: Unpreserved

text: Claims

text: We

text: can

text: deal

text: swiftly

text: with

text: the

text: remainder

text: of

text: the

text: challenged

text: statements

text: which

text: we

text: review

text: only

text: for

text: plain

text: error

text: To

text: establish

text: plain

text: error

text: an

text: appellant

text: must

text: make

text: four

text: showings

text: that

text: an

text: error

text: occurred

text: which

text: was

text: clear

text: or

text: obvious

text: and

text: which

text: not

text: only

text: affected

text: the

text: defendant

text: s

text: substantial

text: rights

text: but

text: also

text: seriously

text: impaired

text: the

text: fairness

text: integrity

text: or

text: public

text: reputation

text: of

text: judicial

text: proceedings

text: United

text: States

text: v

text: Duarte

text: F

text: d

text: st

text: Cir

text: He

text: must

text: satisfy

text: all

text: of

text: these

text: requirements

text: in

text: order

text: to

text: obtain

text: relief

text: Sánchez

text: Berríos

text: F

text: d

text: at

text: This

text: is

text: a

text: daunting

text: standard

text: under

text: plain

text: error

text: review

text: we

text: have

text: leeway

text: to

text: correct

text: only

text: the

text: most

text: egregious

text: of

text: unpreserved

text: errors

text: Id

text: When

text: determining

text: whether

text: alleged

text: prosecutorial

text: misstatements

text: sink

text: to

text: the

text: level

text: of

text: plain

text: error

text: we

text: evaluate

text: the

text: statements

text: within

text: the

text: context

text: of

text: the

text: case

text: as

text: a

text: whole

text: United

text: States

text: v

text: Morales

text: Cartagena

text: F

text: d

text: st

text: Cir

text: We

text: will

text: intervene

text: only

text: if

text: a

text: statement

text: so

text: poisoned

text: the

text: well

text: that

text: the

text: trial

text: s

text: outcome

text: was

text: likely

text: affected

text: United

text: States

text: v

text: Taylor

text: F

text: d

text: st

text: Cir

text: quoting

text: United

text: States

text: v

text: Mejia

text: Lozano

text: F

text: d

text: st

text: Cir

text: We

text: are

text: guided

text: in

text: making

text: this

text: determination

text: by

text: a

text: number

text: of

text: factors

text: including

text: the

text: frequency

text: and

text: deliberateness

text: of

text: the

text: prosecutor

text: s

text: comments

text: the

text: strength

text: and

text: clarity

text: of

text: the

text: trial

text: judge

text: s

text: instructions

text: and

text: the

text: strength

text: of

text: the

text: government

text: s

text: case

text: against

text: the

text: defendant

text: Morales

text: Cartagena

text: F

text: d

text: at

text: We

text: need

text: not

text: recount

text: in

text: detail

text: the

text: statements

text: about

text: which

text: the

text: appellant

text: now

text: complains

text: For

text: present

text: purposes

text: it

text: suffices

text: to

text: say

text: that

text: we

text: have

text: reviewed

text: each

text: of

text: them

text: in

text: the

text: context

text: of

text: the

text: record

text: as

text: a

text: whole

text: Most

text: involve

text: instances

text: in

text: which

text: the

text: prosecutor

text: asked

text: jurors

text: to

text: draw

text: inferences

text: from

text: the

text: evidence

text: It

text: is

text: eminently

text: proper

text: for

text: a

text: prosecutor

text: like

text: any

text: other

text: lawyer

text: to

text: attempt

text: to

text: persuade

text: the

text: jury

text: to

text: draw

text: reasonable

text: inferences

text: favorable

text: to

text: her

text: case

text: United

text: States

text: v

text: O

text: Shea

text: F

text: d

text: st

text: Cir

text: United

text: States

text: v

text: Hamie

text: F

text: d

text: st

text: Cir

text: With

text: one

text: possible

text: exception

text: the

text: challenged

text: statements

text: fell

text: within

text: this

text: safe

text: harbor

text: The

text: only

text: statement

text: that

text: requires

text: specific

text: comment

text: involves

text: a

text: misquotation

text: of

text: the

text: appellant

text: s

text: voicemail

text: message

text: The

text: prosecutor

text: told

text: the

text: jury

text: that

text: in

text: this

text: message

text: the

text: appellant

text: said

text: I

text: got

text: caught

text: I

text: m

text: sorry

text: Those

text: precise

text: words

text: were

text: never

text: spoken

text: At

text: best

text: the

text: prosecutor

text: s

text: account

text: was

text: a

text: rough

text: paraphrase

text: of

text: what

text: the

text: appellant

text: had

text: said

text: There

text: is

text: nothing

text: in

text: the

text: record

text: however

text: to

text: indicate

text: that

text: this

text: misquotation

text: was

text: deliberate

text: Moreover

text: the

text: likelihood

text: of

text: harm

text: was

text: minuscule

text: A

text: recording

text: of

text: the

text: voicemail

text: message

text: was

text: introduced

text: into

text: evidence

text: and

text: the

text: jury

text: took

text: it

text: into

text: the

text: jury

text: room

text: This

text: is

text: particularly

text: important

text: because

text: the

text: court

text: instructed

text: the

text: jurors

text: that

text: the

text: statements

text: of

text: counsel

text: were

text: not

text: evidence

text: but

text: rather

text: that

text: their

text: recollection

text: of

text: the

text: evidence

text: not

text: the

text: lawyers

text: recollections

text: should

text: control

text: We

text: have

text: noted

text: before

text: and

text: today

text: reaffirm

text: that

text: such

text: a

text: prophylactic

text: instruction

text: is

text: a

text: significant

text: safeguard

text: against

text: an

text: advocate

text: s

text: tendency

text: to

text: confuse

text: what

text: a

text: witness

text: actually

text: said

text: with

text: what

text: he

text: wished

text: the

text: witness

text: had

text: said

text: See

text: e

text: g

text: United

text: States

text: v

text: Ortiz

text: F

text: d

text: st

text: Cir

text: Morales

text: Cartagena

text: F

text: d

text: at

text: In

text: the

text: circumstances

text: of

text: this

text: case

text: we

text: discern

text: nothing

text: approximating

text: plain

text: error

text: There

text: is

text: no

text: realistic

text: possibility

text: that

text: this

text: isolated

text: comment

text: made

text: the

text: slightest

text: difference

text: in

text: the

text: outcome

text: D

text: Multiplicity

text: Finally

text: the

text: appellant

text: posits

text: that

text: he

text: is

text: entitled

text: to

text: a

text: new

text: trial

text: on

text: count

text: two

text: because

text: counts

text: one

text: and

text: two

text: of

text: the

text: indictment

text: were

text: multiplicitous

text: Specifically

text: he

text: says

text: that

text: the

text: government

text: failed

text: to

text: offer

text: evidence

text: to

text: show

text: that

text: the

text: two

text: video

text: files

text: alleged

text: to

text: have

text: been

text: received

text: on

text: or

text: about

text: October

text: each

text: of

text: which

text: was

text: the

text: basis

text: of

text: a

text: discrete

text: count

text: were

text: downloaded

text: in

text: separate

text: and

text: distinct

text: transactions

text: Assuming

text: for

text: argument

text: s

text: sake

text: that

text: this

text: challenge

text: remains

text: open

text: it

text: fails

text: on

text: the

text: merits

text: A

text: district

text: court

text: s

text: disposition

text: of

text: a

text: Rule

text: motion

text: for

text: a

text: new

text: trial

text: in

text: a

text: criminal

text: case

text: is

text: ordinarily

text: a

text: judgment

text: call

text: United

text: States

text: v

text: Connolly

text: F

text: d

text: st

text: Cir

text: quoting

text: United

text: States

text: v

text: Maldonado

text: Rivera

text: F

text: d

text: st

text: Cir

text: Such

text: a

text: ruling

text: engenders

text: review

text: for

text: abuse

text: of

text: discretion

text: Id

text: Here

text: however

text: the

text: appellant

text: s

text: thesis

text: depends

text: on

text: an

text: abstract

text: question

text: of

text: law

text: which

text: we

text: review

text: de

text: novo

text: See

text: United

text: States

text: v

text: Huddleston

text: F

text: d

text: st

text: Cir

text: see

text: also

text: Snyder

text: F

text: d

text: at

text: The

text: rule

text: against

text: multiplicitous

text: prosecutions

text: is

text: grounded

text: in

text: the

text: Double

text: Jeopardy

text: Clause

text: which

text: protects

text: against

text: multiple

text: punishments

text: for

text: the

text: same

text: offense

text: Illinois

text: v

text: Vitale

text: U

text: S

text: S

text: Ct

text: L

text: Ed

text: d

text: quoting

text: North

text: Carolina

text: v

text: Pearce

text: U

text: S

text: S

text: Ct

text: L

text: Ed

text: d

text: When

text: an

text: indictment

text: includes

text: multiple

text: counts

text: charging

text: a

text: violation

text: of

text: the

text: same

text: statutory

text: provision

text: and

text: a

text: claim

text: of

text: multiplicity

text: is

text: raised

text: an

text: inquiring

text: court

text: must

text: determine

text: whether

text: the

text: facts

text: undergirding

text: each

text: count

text: can

text: be

text: treated

text: as

text: a

text: distinct

text: unit

text: of

text: prosecution

text: See

text: United

text: States

text: v

text: Hinkeldey

text: F

text: d

text: th

text: Cir

text: cf

text: United

text: States

text: v

text: LeMoure

text: F

text: d

text: st

text: Cir

text: observing

text: with

text: respect

text: to

text: claim

text: of

text: multiplicity

text: that

text: m

text: ultiple

text: punishments

text: for

text: the

text: same

text: offense

text: are

text: permissible

text: if

text: the

text: legislature

text: so

text: intended

text: The

text: critical

text: inquiry

text: is

text: whether

text: Congress

text: intended

text: to

text: punish

text: each

text: statutory

text: violation

text: separately

text: Jeffers

text: v

text: United

text: States

text: U

text: S

text: S

text: Ct

text: L

text: Ed

text: d

text: Counts

text: one

text: and

text: two

text: both

text: charged

text: the

text: appellant

text: with

text: attempted

text: receipt

text: of

text: child

text: pornography

text: in

text: violation

text: of

text: U

text: S

text: C

text: a

text: which

text: makes

text: it

text: unlawful

text: to

text: knowingly

text: receive

text: any

text: visual

text: depiction

text: involving

text: the

text: use

text: of

text: a

text: minor

text: engaging

text: in

text: sexually

text: explicit

text: conduct

text: The

text: record

text: contains

text: no

text: evidence

text: that

text: might

text: establish

text: that

text: the

text: two

text: files

text: at

text: issue

text: here

text: were

text: received

text: in

text: separate

text: and

text: distinct

text: transactions

text: The

text: government

text: appears

text: to

text: concede

text: that

text: the

text: allowable

text: unit

text: of

text: prosecution

text: for

text: the

text: appellant

text: s

text: attempted

text: receipt

text: of

text: videos

text: containing

text: child

text: pornography

text: on

text: a

text: single

text: day

text: and

text: without

text: proof

text: of

text: multiple

text: transactions

text: is

text: one

text: not

text: two

text: See

text: United

text: States

text: v

text: Polouizzi

text: F

text: d

text: d

text: Cir

text: concluding

text: that

text: the

text: rule

text: of

text: lenity

text: requires

text: that

text: a

text: person

text: who

text: receives

text: multiple

text: prohibited

text: images

text: in

text: a

text: single

text: transaction

text: can

text: only

text: be

text: charged

text: with

text: one

text: violation

text: under

text: section

text: a

text: Thus

text: there

text: is

text: a

text: credible

text: basis

text: for

text: a

text: multiplicity

text: claim

text: The

text: potential

text: for

text: such

text: a

text: claim

text: dissipated

text: however

text: once

text: the

text: jury

text: acquitted

text: the

text: appellant

text: on

text: count

text: one

text: and

text: convicted

text: him

text: on

text: count

text: two

text: This

text: split

text: decision

text: eliminated

text: any

text: prospect

text: of

text: double

text: jeopardy

text: That

text: makes

text: a

text: dispositive

text: difference

text: The

text: appellant

text: attempts

text: to

text: blunt

text: the

text: impact

text: of

text: this

text: split

text: decision

text: by

text: suggesting

text: that

text: had

text: the

text: district

text: court

text: recognized

text: the

text: multiplicity

text: concern

text: when

text: that

text: concern

text: was

text: first

text: voiced

text: at

text: the

text: close

text: of

text: the

text: government

text: s

text: case

text: in

text: chief

text: the

text: government

text: would

text: have

text: been

text: compelled

text: to

text: elect

text: between

text: counts

text: one

text: and

text: two

text: and

text: it

text: might

text: have

text: guessed

text: wrong

text: as

text: to

text: which

text: count

text: it

text: should

text: jettison

text: This

text: suggestion

text: misses

text: the

text: mark

text: There

text: is

text: no

text: inflexible

text: rule

text: that

text: the

text: exclusive

text: remedy

text: for

text: multiplicitous

text: counts

text: is

text: election

text: between

text: them

text: See

text: Ball

text: v

text: United

text: States

text: U

text: S

text: S

text: Ct

text: L

text: Ed

text: d

text: Requiring

text: election

text: is

text: one

text: option

text: but

text: not

text: the

text: only

text: option

text: the

text: court

text: may

text: for

text: example

text: simply

text: vacate

text: both

text: the

text: conviction

text: and

text: the

text: sentence

text: as

text: to

text: all

text: but

text: one

text: count

text: essentially

text: merging

text: the

text: offending

text: counts

text: See

text: e

text: g

text: id

text: United

text: States

text: v

text: Lilly

text: F

text: d

text: st

text: Cir

text: This

text: flexible

text: approach

text: makes

text: good

text: sense

text: because

text: the

text: Double

text: Jeopardy

text: Clause

text: does

text: not

text: protect

text: against

text: simultaneous

text: prosecutions

text: for

text: the

text: same

text: offense

text: so

text: long

text: as

text: no

text: more

text: than

text: one

text: punishment

text: is

text: eventually

text: imposed

text: United

text: States

text: v

text: Josephberg

text: F

text: d

text: d

text: Cir

text: per

text: curiam

text: In

text: the

text: case

text: at

text: hand

text: the

text: appellant

text: was

text: convicted

text: and

text: sentenced

text: on

text: only

text: one

text: of

text: the

text: two

text: purportedly

text: multiplicitous

text: counts

text: Consequently

text: his

text: rights

text: under

text: the

text: Double

text: Jeopardy

text: Clause

text: were

text: not

text: infracted

text: See

text: id

text: That

text: fact

text: is

text: fatal

text: to

text: the

text: thesis

text: that

text: he

text: advances

text: here

text: a

text: multiplicity

text: claim

text: is

text: necessarily

text: premised

text: on

text: double

text: jeopardy

text: concerns

text: and

text: where

text: such

text: concerns

text: have

text: been

text: eliminated

text: the

text: multiplicity

text: claim

text: evaporates

text: The

text: court

text: below

text: did

text: not

text: err

text: in

text: denying

text: the

text: appellant

text: s

text: motion

text: for

text: a

text: new

text: trial

text: predicated

text: on

text: this

text: ground

text: III

text: CONCLUSION

text: We

text: need

text: go

text: no

text: further

text: For

text: the

text: reasons

text: elucidated

text: above

text: the

text: appellant

text: s

text: challenges

text: come

text: to

text: naught

text: Affirmed

text: NOTES

text: Hon

text: David

text: H

text: Souter

text: Associate

text: Justice

text: Ret

text: of

text: the

text: Supreme

text: Court

text: of

text: the

text: United

text: States

text: sitting

text: by

text: designation

text: Although

text: this

text: phraseology

text: seems

text: odd

text: we

text: think

text: that

text: the

text: jury

text: reasonably

text: could

text: have

text: inferred

text: from

text: it

text: that

text: the

text: appellant

text: downloaded

text: the

text: results

text: of

text: five

text: or

text: six

text: searches

text: each

text: week

text: The

text: file

text: name

text: was

text: cp

text: tvg

text: Bond

text: Yo

text: Childlover

text: Little

text: Collection

text: Video

text: Girl

text: Vicky

text: String

text: Bikini

text: Pthc

text: Yo

text: Pedofilia

text: mpg

text: The

text: government

text: asserts

text: that

text: this

text: challenge

text: was

text: waived

text: by

text: the

text: appellant

text: s

text: failure

text: to

text: attack

text: the

text: indictment

text: prior

text: to

text: trial

text: See

text: Fed

text: R

text: Crim

text: P

text: b

text: B

text: We

text: take

text: no

text: view

text: on

text: the

text: waiver

text: question

text: Each

text: count

text: also

text: mentions

text: U

text: S

text: C

text: b

text: which

text: criminalizes

text: the

text: attempted

text: violation

text: of

text: section

text: a

text: This

text: additional

text: reference

text: is

text: of

text: no

text: consequence

text: in

text: the

text: multiplicity

text: analysis