Skip to main content

Prosecutorial misconduct of systematically injecting inadmissible evidence into child pornography trial was plain but did not warrant reversal; application of obstruction of justice enhancement erroneous and warranted remand for resentencing, even where district court imposed a downward variance


United States v. WelshansAppeal No. 16-4106 (3d Cir. June 14, 2018), 2018 WL 2976804



Welshans challenged his conviction and sentence for distribution and possession of child pornography.

The Third Circuit rejected Welshans's argument that the prosecution violated his due process right to a fair trial by informing the jury that the files on his computer included deeply abhorrent videos and images of bestiality, bondage, and violent sexual assault of very young children.  At trial, the district court had admitted, with limiting instructions, two videos, without sound, which lasted two and a half minutes. The rest of the collection was excluded under Rule 403 and United States v. Cunningham, 694 F.3d 372, 391 (3d Cir. 2012). However, the government introduced exhibits which gave detailed paragraph-length descriptions of gruesome images and disturbing file names, and also elicited testimony from three agents that the images the jury saw were not the worst of what was recovered from Welshans. The government repeated these descriptions in closing argument. While the government is free to prove its case as it sees fit, its evidence remains subject to 403 limitations, whether the evidence is videos, as in Cunningham, or written or testimonial descriptions, as here. The Court agreed that the prosecutor’s misconduct was plain, but did not rise to the level of a constitutional violation. While the misconduct was pervasive, and any limiting instructions did not address the prejudicial descriptions, the misconduct did not so infect the trial with unfairness because it did not impact the jury’s credibility determination. The only contested issue in the case was whether Welshans knew there was child pornography on his computers, and his denial was overwhelmed by the evidence: 10,000 images and hundreds of videos on his computer with no explanation how they got there, as well as his conduct trying to get rid of those files while the police were en route.

The Third Circuit agreed that the obstruction enhancement was erroneously imposed. Application Note 4(d) to U.S.S.G. § 3C1.1 provides that not all acts of destroying or concealing evidence are obstruction, for example: “if such conduct occurred contemporaneously with arrest . . . it shall not, standing alone, be sufficient to warrant an adjustment for obstruction unless it results in a material hindrance to the official investigation . . . .” Here, Welshans received a call from his aunt that police were on their way to his house and, in a panic, he began moving files on his computer into the recycling bin. Once law enforcement found the laptop, they removed its battery. The files were easily restored, and none were lost. The panel ruled that “material hindrance” requires an actual, negative effect, rejecting the government’s overly broad interpretation that anything that takes some “extra time” and might emerge as a trial issue is a material hindrance. (Also, the government only challenged this prong at oral argument, so the Court deemed it waived). Because the enhancement was applied in error, remand was necessary even though the district court had imposed a downward variance, because the Court could not “be sure” that the erroneous calculation did not affect the sentence imposed. Judge Fuentes dissented on the sentencing reversal, finding that contemporaneous should be more strictly defined as conduct occurring “just prior to arrest,” and conduct that occurred 40 minutes before agents arrived was not “just prior.” 




Comments

Popular posts from this blog

Double Jeopardy Claim Falls Short on Deferential Habeas Review

In the habeas matter of Wilkerson v. Superintendent Fayette SCI, Nos. 15-1598 & 15-2673, the Third Circuit defers to a state court determination that the defendant’s conviction of both an attempted murder count and an aggravated assault count based on the same altercation did not violate the Double Jeopardy Clause.
The evidence was that during the altercation, the defendant both struck the victim in the head with a gun and shot him in the chest. The Pennsylvania Superior Court upheld consecutive sentences on the theory that the evidence was sufficient to permit a jury to find the striking to support one count and the shooting the other. Despite the jury instructions’ and verdict form’s failure to require each of these discrete findings, the Third Circuit holds that the state court’s reasoning was sound enough to withstand deferential review the AEDPA’s “clearly established Federal law” limitation. “[W]here the jury instructions were merely ambiguous and did not foreclose the jury…

Mailing Threatening Communications is a Crime of Violence and a Judicial Proposal for Reform of the Categorical Approach

In United States v. Chapman, __F.3d__, No. 16-1810, 2017 WL 3319287 (3d Cir. Aug. 4, 2017), the Third Circuit held that mailing a letter containing any threat to injure the recipient or another person in violation of 18 U.S.C. § 876(c) qualifies as a crime of violence for the purposes of the career offender enhancements of the Sentencing Guidelines Manual § 4B1.1(a).The Court acknowledged in a footnote that the analysis is the same for a violation of 18 U.S.C. § 871, threats against the president.


The Court began its analysis by reviewing the definition of “crime of violence” and specifically the meaning of the words “use” and “physical force.”Quoting United States v. Castleman, 134 S. Ct. 1405 (2014), and Tran v. Gonzales, 414 F.3d 464 (3d Cir. 2005), it defined “use” as “the intentional employment of force, generally to obtain some end,” which conveys the notion that the thing used “has become the user’s instrument.” The Court confirmed the definition of “physical force” as “force ca…

Federal Court upholds RICO and wire fraud conviction for New Jersey political party official

In United States v. Ferriero, __F.3d.__, 2017 WL 3319283, 15-4064 (3rd Cir. Aug. 4, 2017), the Third Circuit upheld a RICO violation when a political party official arranged to receive a percentage of fees paid to a vender that he recommended to local offices during the course of his official duties.The Court held that there is no requirement to prove an agreement to “undermine the integrity of a public action” when the RICO charges stem from the current version of New Jersey’s bribery statute.The Court also found that a communication can be fraudulent and violate federal wire fraud law when it contains half-truths and omits critical information.Furthermore, it found that the New Jersey bribery statute is neither overbroad nor unduly vague, and the Supreme Court’s decision in McDonnell v. United States, 136 S. Ct. 2355 (2015), did not impact the present conviction because that case dealt with “officials acts” and not “public issues.”