United States v. David McElmurry

We address double jeopardy and eviden-tiary issues in a child pornography case.

Facts

FBI agents used the identity of a member of an online file-sharing group, “Giga-Tribe,” to find possessors and sharers of child pornography. They downloaded a large number of such images and videos from a GigaTribe user who called himself “Teentrade.” They tracked the IP address of Teentrade to a house where McElmurry’s -mother and grandmother lived and which McElmurry frequented. After getting a search warrant, they waited until they saw that Teentrade was online, and knocked on the door. They pretended there was a package McElmurry had to sign for, to draw him away from the computers in hopes that he would not have time to delete or encrypt the data. Once McElmurry got to the door, the agents executed the search warrant.

The FBI agents located and seized three computers, two because they did not have the passwords. The agents were still able to connect to Teentrade online from their own devices. To figure out which computer, if any, was associated with Teentrade, they disconnected one computer at a time. When the agents unplugged the desktop computer, the downloads from Teentrade…

concurring in part and dissenting in part:

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

The defendants in both Curtin and Waters objected at trial under Rule 403 to specific pornographic stories and specific pieces of anarchist literature, respectively, that the government sought to introduce. *1072 See Waters, 627 F.3d at 356 n. 4; Curtin, 489 F.3d at 942 . We held in each case that the district court abused its discretion by making a Rule…

Facts

FBI agents used the identity of a member of an online file-sharing group, “GigaTribe,” to find possessors and sharers of child pornography. They downloaded a large number of such images and videos from a GigaTribe user who called himself “Teentrade.” They tracked the IP address of Teentrade to a house where McElmurry’s mother and grandmother lived and which McElmurry frequented. After getting a search warrant, they waited until they saw that Teentrade was online, and knocked on the door. They pretended there was a package McElmurry had to sign for, to draw him away from the computers in hopes that he would not have time to delete or encrypt the data. Once McElmurry got to the door, the agents executed the search warrant.

The FBI agents located and seized three computers, two of which were running, but could not get into the computers

UNITED STATES V. MCELMURRY

because they did not have the passwords. The agents were still able to connect to Teentrade online from their own devices. To figure out which computer, if any, was associated with Teentrade, they disconnected one computer at a time. When the agents unplugged the desktop computer, the…