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. Welshans, Appeal 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.”