In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12‐2466
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
CHRISTOPHER EADS,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 11‐CR‐239 — Tanya Walton Pratt, Judge.
____________________
ARGUED APRIL 15, 2013 — DECIDED SEPTEMBER 6, 2013
____________________
Before RIPPLE, ROVNER, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. At the age of twenty‐six, Chris‐
topher Eads was charged with possession and distribution of
child pornography and tampering with a potential witness.
The district court cautioned him about the perils of self‐
representation in a criminal trial, but he chose to represent
himself anyway. Eads stipulated that the images charged in
the indictment constituted child pornography, but he
2 No. 12‐2466
claimed that he was being framed and that the images be‐
longed to someone else. So over Eads’s objection, the district
court allowed the government to introduce several photo‐
graphs and short video clips of the child pornography dis‐
covered on Eads’s home computer to show he knowingly
possessed and distributed these images. The jury also heard
several telephone calls Eads made to his wife urging her to
recant her earlier statements to police and to tell them that
the pornography found on his home computer was not his.
After a four‐day trial, the jury convicted Eads on all counts,
and the district court sentenced him to 480 months’ impris‐
onment.
Eads now raises a litany of challenges to his convictions
and sentence on appeal, but none have any merit. He claims
that the district court abused its discretion in allowing him
to represent himself at trial, but the court questioned him at
length before allowing him to proceed pro se. And while we
agree with Eads that the district court erred in not thorough‐
ly explaining on the record why it admitted the evidence of
child pornography, the images were not unfairly prejudicial
and the additional evidence of his guilt was overwhelming.
The jury was also presented with sufficient evidence of
Eads’s attempts to corruptly persuade his wife to testify
falsely, and so we will not overturn the jury’s guilty verdict
on the witness tampering charge. Eads further claims that
the district court should have granted him a new trial. But
the district court held an evidentiary hearing on the matter
and properly found no newly discovered evidence to sup‐
port a new trial. Lastly, notwithstanding Eads’s protestations
to the contrary, the district court carefully considered the fac‐
tors under 18 U.S.C. § 3553(a) as they applied to Eads and
No. 12‐2466 3
his overall offense conduct before sentencing him. Therefore,
we affirm the district court’s judgment in all respects.
I. BACKGROUND
Sometime in May 2011, Detective Darin Odier of the In‐
dianapolis Metropolitan Police Department’s Cyber Crimes
Unit found an Internet Protocol (IP) address offering 400
files of nude children through a file sharing program called
“Shareaza.” Detective Odier obtained a subpoena for the
Comcast subscriber associated with the IP address, and it
came back with the name “Christopher Eads.” By the time
Detective Odier had prepared a search warrant, the IP ad‐
dress that belonged to Eads was no longer active. But by Oc‐
tober 26, 2011, it was up and running again. At this time, De‐
tective Odier downloaded five files associated with Eads’s IP
address and found images with code names associated with
child pornography such as, “Pedo Babyshivid Childlover
Private Daughter Torpedo Ranchi Lolita” and “Pedo Dad
F*cks Toddler Boy.”
On November 15, 2011, detectives conducted a search of
Eads’s home and found two laptop computers, compact
discs, thumb drives, and a Bersa .40‐caliber handgun. When
detectives searched the living room laptop, they discovered
6,937 images of child pornography (including one image
with text written over it offering to rent a child for sex) and
1
over thirty minutes in total of child pornography videos.
1 When detectives turned on the living room computer, Shareaza auto‐
matically activated and was in the process of downloading twenty‐five
additional video files containing child pornography.
4 No. 12‐2466
Both Eads and his wife, Rachel Smith Eads, were home
during the search and Rachel agreed to speak with law en‐
forcement. Eads yelled through the house, “Don’t tell them
anything.” Rachel told detectives that after dating Eads for a
couple of months, she found an FBI badge in his pants pock‐
et. When she confronted him about it, he told her that he
was an undercover FBI agent and that he had to download
child pornography as part of his duties. Rachel further told
detectives that the handgun they had found in the home be‐
longed to Eads (which was a problem for Eads because he is
a convicted felon).
Eads was later arrested and taken into federal custody.
While in custody from November 29–30, 2011, Eads called
Rachel from jail numerous times. Clearly frustrated and up‐
set by Rachel’s statements to police, Eads repeatedly de‐
manded that she “make this right” and recant her state‐
ments. Eads proposed that Rachel write to the judge as‐
signed to his case and state that Eads’s former friend and
houseguest, Nathan Asbury, was trying to set him up. Ra‐
chel promised to help her husband.
A. Pretrial Issues
On December 21, 2011, a grand jury indicted Eads on
charges of distributing child pornography (Count 1), pos‐
sessing child pornography (Count 2), being a felon in pos‐
session of a firearm (Count 3), impersonating a federal agent
(Count 4), and tampering with a witness (Count 5). On Feb‐
ruary 9, 2012, the district court conducted a final pretrial
conference with the parties where several matters germane
to the instant appeal were discussed. First, the court con‐
firmed that the government did not plan to call Rachel Eads
as a witness and had agreed it would not introduce any
No. 12‐2466 5
statements she made to police during the November 15
search of her home. However, the government stated its in‐
tention to play recordings of the phone conversations be‐
tween Eads and Rachel while he was in jail. Second, the
court stated that it had “reviewed the parties’ proposed ex‐
hibits” and that “[t]he parties have resolved issues relating
to the publication of pornographic images and videos to the
jury.” The court went on to encourage the parties “to stipu‐
late that the videos depict unlawful child pornography” in
order to “allow the Government to show far shorter excerpts
of the videos.”
The parties followed the district court’s advice and en‐
tered into several stipulations before trial. They agreed,
among other things, that each of the charged images in
Counts 1 and 2 of the indictment consisted of “a visual de‐
piction having involved the use of a minor, that is, a person
under the age of 18, engaging in sexually explicit conduct
and each of such visual depictions was of such conduct.”
Six days before trial, Eads filed a notice of his intent to
represent himself. The district court held a hearing on the
matter to determine whether Eads understood the conse‐
quences of self‐representation. The district court asked him
whether he was “a hundred percent sure” he wanted to rep‐
resent himself a trial, whether the decision was made volun‐
tarily, and whether he could be convinced to use a lawyer
instead. But Eads was adamant in his desire to represent
himself, and so the district court accepted his decision and
appointed standby counsel.
6 No. 12‐2466
B. The Trial
A four‐day jury trial was held on the distribution and
possession of child pornography charges, as well as the wit‐
2
ness tampering charge. In his opening statement, Eads
maintained that (1) he was not responsible for the child por‐
nography found on his living room computer, (2) the com‐
puter was only used by houseguests, and (3) Nathan Asbury
was responsible for the images. Early in the trial, Detective
Odier testified about his investigation and explained how he
downloaded images from shared files on Eads’s computer.
The government sought to admit five hard copy printouts of
the images from these files, but Eads objected, citing Federal
Rule of Evidence 403. The court asked him to explain his ob‐
jection and he said: “I believe that it’s already been estab‐
lished that it is what it is … . I think it’s a little prejudiced.”
The government asked that the court admit the images be‐
cause the jurors must “decide if they are, in fact, visual de‐
pictions of sexual explicit conduct.” The court pointed out
that no stipulations regarding the images were in evidence
at that point in the proceedings and overruled Eads’s objec‐
tion, stating: “These photographs are relevant to the ele‐
ments that the government has to prove in this case beyond
a reasonable doubt.”
Later in the trial, the government stated that it intended
to publish small clips of the pornographic videos charged in
Count 2. Again, Eads objected, stating: “I think it’s preju‐
diced … . I just believe it’s already been established, a stipu‐
lation that it is what it’s portrayed to be, child pornogra‐
2
Counts 3 and 4 were severed, set for separate trial, and eventually
dropped.
No. 12‐2466 7
phy.” And again, the district court overruled the objection,
stating that “it goes to the person’s—a user of this comput‐
er’s knowledge because of where these items were found … .
So you know, that’s all going to be relevant to the issue of
who’s the person using the computer … . Rule 403 prohibits
evidence that is unreasonably prejudicial. The government is
going to minimize the prejudice of these exhibits by only
playing short clips.” In total, the jury viewed a little over
three minutes of footage.
Eads also objected to the government’s proposed intro‐
duction of his eight recorded jailhouse phone calls with Ra‐
chel and the accompanying written transcripts. Eads argued
that given his emotional state at the time, the recordings
were extremely prejudicial. The judge overruled Eads’s ob‐
jection, finding that the probative value of the tapes out‐
weighed any prejudicial impact. The jury ultimately convict‐
ed Eads on all counts.
C. Motion for New Trial and Sentencing
Eads filed a pro se motion for a new trial, and again, de‐
clined the court’s offer to appoint him counsel. The court
held an evidentiary hearing on his motion and Eads called
several witnesses. Rachel presented a new story that Nathan
Asbury had lived with her and Eads in the past, and that
during Asbury’s stay, she had seen him on the living room
computer viewing child pornography. She further claimed
that she and Eads were out of town on October 26, 2011 (the
day Detective Odier downloaded the child pornography),
and that Asbury was there to watch their dog. Rachel said
that she lied in her initial statements to police officers be‐
cause they threatened to take her children away. As a result,
the government introduced several statements from Rachel’s
8 No. 12‐2466
interview with detectives as impeachment evidence, includ‐
ing her statements that: (1) no one was able to use the com‐
puter in the living room except for Eads; (2) Eads looked at
child pornography in order to turn it over to the FBI for his
job; and (3) Rachel did not have the password to the com‐
puter. Asbury also testified. He denied being at Eads’s home
on the days when detectives tracked pornography uploads
and denied having ever looked at child pornography on
Eads’s computer. In fact, Asbury was incarcerated between
June 14 and August 23, 2011—a time period in which there
was a significant amount of user activity on the living room
laptop, some of which involved downloading and viewing
child pornography. The district court therefore rejected
Eads’s assertion that he had any newly discovered evidence
to offer and denied the motion for a new trial.
The case proceeded to sentencing. Eads made several un‐
successful objections pertaining to the Probation Depart‐
ment’s calculations under the United States Sentencing
Guidelines. The district court accepted the Presentence In‐
vestigation Report’s recommended adjusted offense levels of
47 for Counts 1 and 2 (distribution and possession of child
pornography), and 41 for Count 5 (witness tampering). Giv‐
en that Eads’s criminal history points put him in criminal
history category V, his Guidelines range for imprisonment
was life. After a lengthy discussion of the factors under 18
U.S.C. § 3553(a), the court sentenced him to a term 480
months’ imprisonment. Eads now appeals his conviction
and sentence.
II. ANALYSIS
Eads presents numerous arguments on appeal. We note
at the outset that we have reviewed the brief filed by Eads’s
No. 12‐2466 9
counsel as well as Eads’s pro se brief. Though we have said
before that “a defendant does not have an affirmative right
to submit a pro se brief when represented by counsel,” Unit‐
ed States v. Gwiazdzinski, 141 F.3d 784, 787 (7th Cir. 1998),
“nothing precludes an appellate court from accepting the
pro se brief and considering the arguments contained there‐
in for whatever they may be worth.” Hayes v. Hawes, 921
F.2d 100, 101–02 (7th Cir. 1990). On January 4, 2013, this
court ordered that Eads’s opening pro se brief only raise cer‐
tain issues related to his ability to represent himself at trial,
the sufficiency of the evidence at trial, and the denial of his
motion for a new trial. His counsel’s brief challenges the dis‐
trict court’s admission of certain evidence at trial, the suffi‐
ciency of the evidence, and his sentence. We will address
each argument in turn below (to the extent that they warrant
discussion), but we condense the overlapping arguments
and decline to address the other unrelated issues Eads raises
in his pro se brief that go beyond the scope of our order.
A. No Abuse of Discretion in Allowing Self‐
Representation
The first matter to resolve is whether the district court
abused its discretion in allowing Eads to represent himself at
trial. In considering Eads’s waiver of his right to counsel, our
task is to examine the record as a whole to see if he “know‐
ingly and intelligently” waived his right to counsel. Faretta v.
California, 422 U.S. 806, 835 (1975). In determining whether
Eads’s decision was made knowingly and intelligently, we
consider (1) whether and to what extent the district court
conducted a “formal hearing” into Eads’s decision to repre‐
sent himself, (2) whether there is other evidence in the rec‐
ord that establishes that Eads “understood the disad‐
10 No. 12‐2466
vantages of self‐representation,” (3) Eads’s “background and
experience,” and (4) the “context” of Eads’s decision to pro‐
ceed pro se. See United States v. Avery, 208 F.3d 597, 601 (7th
Cir. 2000) (citations omitted).
In this case, the district court questioned Eads at length
about whether he had ever studied law, represented himself
in a criminal proceeding, understood the charges and penal‐
ties he was facing, and understood the sentencing guide‐
lines. Finally, the court stated:
Mr. Eads, I need to advise you that, in my opinion, a
trained lawyer would defend you far better than you
could defend yourself, and that I think it’s unwise of
you to try to represent yourself. You’re not familiar
with the law. You’re not familiar with court proce‐
dure. You’re not familiar with the Rules of Evidence.
And so I strongly urge you not to try to represent
yourself but you do have a constitutional right to do
that.
The court also determined that no one else had coaxed
him into self‐representation and that Eads’s court‐appointed
lawyer had discussed the consequences of trying the case
without the benefit of counsel. We have no doubt that the
district court conducted its hearing in conformity with Faret‐
ta and ensured that Eads was fully aware of the hazards and
disadvantages of self‐representation. See United States v. San‐
dles, 23 F.3d 1121, 1126 (7th Cir. 1994) (citing United States v.
Belanger, 936 F.3d 916, 918 (7th Cir. 1991)) (“strongly sug‐
gest[ing] that a trial court, at minimum, inquire of the de‐
fendant’s age and level of education, and inform him of the
crimes with which he was charged, the nature of those
charges, and the possible sentences they carry”).
No. 12‐2466 11
Eads contends in his pro se brief on appeal that he was
on prescription anti‐anxiety medication during his trial and
would not have proceeded pro se had he not been under the
influence of this medication. But Eads never once disclosed
any medication issues before trial, and throughout the
course of the proceedings he appeared lucid, competent, and
mounted a vigorous defense on his own behalf. Moreover,
the district court asked Eads during trial, at the post‐trial
hearing, and at his motion for a new trial whether he wished
to have standby counsel take over for him. He declined the
offer at each juncture. The record establishes that Eads knew
what he was doing and made his choice with his “eyes
open.” Faretta, 422 U.S. at 835. We therefore conclude that
Eads’s waiver of his right to counsel was knowing and intel‐
ligent.
B. Failure to Conduct Thorough Rule 403 Balancing
Test Was Harmless
Next, Eads contends that the district court erred in allow‐
ing the government to show the jury pictures and video clips
of the child pornography discovered in his home. Eads ar‐
gues that his stipulation to the content of the images obviat‐
ed the government’s need to introduce any of the images,
and that they were only shown to inflame the jury. Federal
Rule of Evidence 403 requires the district court to exclude
relevant evidence “if its probative value is substantially
outweighed by the danger of unfair prejudice.” Fed. R. Evid.
403. We review a district court’s decision to admit or exclude
evidence for abuse of discretion, but “when it comes to the
necessarily context‐sensitive evaluation of a claim under
Rule 403, we give special deference to the district court’s
findings and reverse only when no reasonable person could
12 No. 12‐2466
take the view adopted by the trial court.” United States v.
LeShore, 543 F.3d 935, 939 (7th Cir. 2008) (citations and inter‐
nal quotation marks omitted).
1. Courts Need to Review Contested Images
Eads first argues that the district court erred in failing to
examine the pornographic pictures and videos for itself be‐
fore admitting the evidence. Neither party appears to have
explicitly requested that the district court review the images
charged in Counts 1 and 2 before trial, but the government
directs us to the district court’s “Entry Following Pretrial
Conference” in which the court stated that it had “reviewed
the parties’ proposed exhibits.” Those exhibits included the
pornographic images and videos the government sought to
publish to the jury. However, the government conceded at
oral argument that it is not certain whether the district court
reviewed the images, or only reviewed the list of exhibits.
Lacking any conclusive determination in the record as to
whether the district court viewed the challenged images, we
are once again compelled to reiterate that the better and
“safest course … is for the court to review the contested evi‐
dence for itself” in evaluating whether the potential preju‐
dice to the defendant substantially outweighs any probative
value, especially given the highly inflammatory nature of
this type of evidence. See United States v. Loughry, 660 F.3d
965, 971–72 (7th Cir. 2011) (explaining that relying on parties’
descriptions of highly disturbing evidence of child pornog‐
raphy is insufficient).
No. 12‐2466 13
2. A Bare‐Bones Recitation of Rule 403 Is Not Suffi‐
cient
In any event, we agree with Eads that the district court
needed to provide a more robust explanation of how it bal‐
anced the factors under Rule 403 before it admitted the por‐
nographic images and videos. In overruling Eads’s objection
to the admission of the hard copy images of child pornogra‐
phy, the court made no mention of having examined the ev‐
idence or of any effort to weigh its prejudicial impact. The
court explained its decision only briefly: “The court is going
to overrule your objection. These photographs are relevant
to the elements that the government has to prove in this case
beyond a reasonable doubt.” When Eads objected later at
trial to the admission of the video clips, the court similarly
stated: “Rule 403 prohibits evidence that is unreasonably
prejudicial. The government is going to minimize the preju‐
dice of these exhibits by only playing short clips.” These are
not sufficient explanations for admitting the contested evi‐
dence under Rule 403, as we have cautioned many times that
“[a] pro‐forma recitation of the Rule 403 balancing test does
not allow an appellate court to conduct a proper review of
the district court’s analysis.” Loughry, 660 F.3d at 972. “To
avoid this trap, a district court should carefully analyze the
prejudicial effect [of the evidence], and provide a considered
explanation of its reasons for admitting the evidence.” Unit‐
ed States v. Miller, 688 F.3d 322, 328 (7th Cir. 2012) (citing
United States v. Ciesiolka, 614 F.3d 347, 357 (7th Cir. 2010)) (“A
perfunctory analysis or bare‐bones conclusion simply will
not suffice.”).
Whether the probative value of the challenged images
and videos was substantially outweighed by the risk of un‐
14 No. 12‐2466
fair prejudice to Eads is a closer call. Eads insists that the
videos were only shown to inflame the minds of the jurors
and the fact that some of them were crying after the videos
were shown demonstrates their prejudicial effect. “Because
all probative evidence is to some extent prejudicial, we have
consistently emphasized that Rule 403 balancing turns on
whether the prejudice is unfair.” United States v. McKibbins,
656 F.3d 707, 712 (7th Cir. 2011) (emphasis added). The gov‐
ernment maintains that it may publish portions of charged
images of child pornography to a jury, even when a defend‐
ant has stipulated that the images contain child pornography
and contends that stipulations cannot substitute for the gov‐
ernment’s chosen evidence. To the extent that a defendant
who stipulates to the content of images then argues at trial
that he did not know he was in possession of child pornog‐
raphy or did not understand the wrongfulness of receiving
3
these images, we agree. A stipulation about the content of
charged images only goes so far if it is silent with respect to
the defendant’s knowledge of the images in his possession.
3
At least two unpublished decisions from this circuit have suggested
that “offers of stipulation are not persuasive in the context of child‐
pornographic prosecutions” where the defendant’s knowledge of pos‐
sessing the images was disputed. See United States v. Keith, 440 Fed.
Appx. 503, 507 (7th Cir. 2011) (explaining that “evidence should not be
excluded merely because it might be graphic or disturbing” and “the
images were probative because they showed Keith’s possession of child
pornography images and his knowledge of possession such images”); see
also United States v. Hatfield, 358 Fed. Appx. 692, 694, 696 (7th Cir. 2009)
(finding video clips of child pornography not unfairly prejudicial where
the defendant tried “to imply that his computer equipment had been
compromised by someone who downloaded the child pornography
without his knowledge”).
No. 12‐2466 15
This is why showing the images served a valid, non‐
cumulative, purpose in this case. Recall that even though
Eads stipulated that the images contained child pornogra‐
phy, he insisted at trial that he had been unaware of the im‐
ages on his laptop and that they must have been download‐
ed by his houseguest, Nathan Asbury. This left the govern‐
ment with the burden to prove that Eads knew he was in
possession of child pornography. To accomplish this task,
the government proved that the images that were shared
online matched up with Eads’s email address. For example,
one file found on Eads’s computer containing an image of
child pornography entitled, “Baby White Girl,” had accom‐
panying text stating: “I’m looking to rent a child for sex … .
They must be under 10 years old … . I have been with a few
kids before … . Please email me at childtopfan@yahoo.com.”
Clearly, the government showed that the email listed on the
image belonged to Eads.
Moreover, we note that all of the images were derived
from files charged in the indictment, so it is not as if the im‐
ages were unrelated to the crime charged or more disturbing
than the ones found in his home. See United States v. Burt, 495
F.3d 733, 741 (7th Cir. 2007) (finding no unfair prejudice
where defendant was prosecuted for exactly what a chal‐
lenged “chat log depict[ed]: creating, trading, and distrib‐
uting photos of children for the sexual satisfaction of himself
and his online partners”); cf. Loughry, 660 F.3d at 974 (find‐
ing prejudice where disturbing content of videos made de‐
fendant appear “more despicable to the jury than the ‘lasciv‐
ious pornography’” the defendant was actually charged
with distributing). But ultimately, we need not decide
whether publishing the contested images and videos to the
16 No. 12‐2466
jury was error because the evidence at trial clearly estab‐
lished Eads’s guilt beyond a reasonable doubt.
3. Admission of the Images Was Harmless Error
As we have explained before, “[t]he test for harmless er‐
ror is whether, in the mind of the average juror, the prosecu‐
tion’s case would have been significantly less persuasive had
the improper evidence been excluded.” United States v.
Blanchard, 542 F.3d 1133, 1151 (7th Cir. 2008) (citation omit‐
ted). “An error is harmless if the untainted incriminating ev‐
idence is overwhelming.” Loughry, 660 F.3d at 975. The evi‐
dence presented against Eads at trial was quite significant.
When detectives turned on his living room laptop computer,
the file sharing software used to distribute child pornogra‐
phy automatically activated with twenty‐five videos in the
queue for downloading. The file folder containing most of
the child pornography was easily accessed through an icon
on the desktop of his computer. The image described above
offering to “rent” a child for sex was found on the computer.
A video showing naked children had been played on the
computer just eight hours before the detectives searched the
home. Twelve days before that, a video file with the title,
“Incest Mom 29 and Kiddy 8/9 year” was played.
The government offered additional evidence connecting
Eads to the living room computer and undermining his con‐
tention that it was used solely by houseguests. The computer
name was input as “Chris,” the desktop background of the
computer was a picture of Eads, and email accounts linked
to Eads were created on the computer using the IP address
from which Detective Odier downloaded the images
charged in Count 1. Furthermore, the evidence showed that
Eads used the computer for posting personal ads on
No. 12‐2466 17
Craiglist with the childtopfan@yahoo.com email address. At
trial, two women who responded to these ads identified
Eads as the individual with whom they met, and one woman
testified that he showed her pictures of his family on the liv‐
ing room computer in question. All of the facts above lead us
to conclude that the evidence of Eads’s guilt was over‐
whelming and the court’s admission of the images did not
4
change the outcome of the trial. Therefore, Eads’s challenge
to his convictions on Counts 1 and 2 must fail.
C. Conviction for Witness Tampering Was Supported
by the Evidence
Eads also argues that the government failed to present
sufficient evidence to show that he tried to persuade his wife
to commit perjury. When considering a challenge to the suf‐
ficiency of the evidence at trial, a defendant faces an uphill
battle on appeal because we must draw “all reasonable in‐
ferences in the prosecution’s favor” and affirm “if any ra‐
tional jury could have found the elements of the crime be‐
yond a reasonable doubt.” United States v. Wortman, 488 F.3d
752, 754 (7th Cir. 2007).
To convict Eads of witness tampering under 18 U.S.C.
§ 1512(b), the government had to prove that: (1) Rachel was
a witness or prospective witness; (2) Eads attempted to per‐
4
To the extent that Eads also argues in his pro se brief that his convic‐
tions for possession and distributing child pornography were not sup‐
ported by the evidence, we must disagree given the extent of evidence
recounted above. “[W]e will overturn a guilty verdict only when the rec‐
ord contains no evidence, regardless of how it is weighed, upon which a
rational trier of fact could find guilt beyond a reasonable doubt.” United
States v. Starks, 309 F.3d 1017, 1021 (7th Cir. 2002).
18 No. 12‐2466
suade Rachel to provide false testimony, and (3) Eads acted
knowingly and with intent to influence Rachel’s testimony.
United States v. Holt, 460 F.3d 934, 938 (7th Cir. 2006) (citing
United States v. LaShay, 417 F.3d 715, 718 (7th Cir. 2005)). The
evidence on this charge—solely from Eads’s jailhouse con‐
versations with Rachel—is not overwhelming, but it is not so
thin that the jury was obliged to acquit Eads of this charge.
See Wortman, 488 F.3d at 754 (“We do not reverse a convic‐
tion if a reasonable jury could have acquitted a defendant, we
only reverse if the jury was obliged to acquit the defendant.”)
(emphasis added).
To prove this charge at trial, the jury heard eight, fifteen‐
minute long recordings of phone calls between Eads and Ra‐
chel in the days following his arrest. Eads insists that he was
only trying to convince Rachel to tell the truth on the calls in
question, but our review of their conversations suggests oth‐
erwise. When heard in context, the calls evince a clear effort
at manipulation, as Eads is heard tearfully pleading with
Rachel to recant her previous statements to police and to
“think of [their] family before saying anything [else] to the
cops.” He specifically demands that she “make up some let‐
ters” to write to the trial court judge denying that she ever
saw him on the living room computer or with a fake FBI
badge, and begs her to state that Eads was out of town on
October 26, 2011 (the day detectives downloaded the por‐
nography from his computer). For instance, he said:
Rachel, if you love me, if you’ve ever loved me, that’s
the only thing you’ve gotta do. It’s not rocket science,
it’s not hard. Just have the courage. I mean you had
the courage to sit there and say these things, now just
take them all back and say you were, you were
No. 12‐2466 19
scared, they were threatening to take you to jail, you
didn’t know what you … were saying … . I mean,
once you produce … the alibi that we weren’t even in
f‐‐‐‐ing town on the 26th, the 25th or the 26th. We were
out of town. You’re, I mean you’re giving me the f‐‐‐‐
ing alibi that I wasn’t nowhere near the computer.
Eads further instructs his wife to say that Nathan Asbury
set him up, and “even if it wasn’t Nathan, it’s somebody
[else].” He promises Rachel that she “can make this right,”
just as long as she doesn’t “say anything more [that is] hurt‐
ful.”
When heard in context, the tenor of these statements il‐
lustrates a clear invitation for Rachel to lie for Eads. Eads
points to the fact that he also said to Rachel several times,
“you have to tell them the truth” and “I wouldn’t be in here
if you hadn’t told them these things,” but our review of the
calls leads us to believe these statements were either made
with a wink and nod, or Eads was still trying to make Rachel
believe his lies. See LaShay, 417 F.3d at 718–19 (7th Cir. 2005)
(explaining that a defendant may “corruptly persuade” a
witness to testify falsely by telling “a potential witness a
false story as if the story were true, intending that the wit‐
ness believe the story and testify to it,” or persuading “a
witness to give a false account that tracked the defendant’s
position,” in other words, “an unstated invitation to lie”). In
any event, the jury was not required to believe Eads’s sug‐
gestion that he was trying to convince Rachel to tell the
truth. See United States v. Millbrook, 553 F.3d 1057, 1066 (7th
Cir. 2009) (explaining that defendant’s “spin on the conver‐
sation” between he and a potential witness “may be plausi‐
ble, but the jury was not required to accept it”), overruled on
20 No. 12‐2466
other grounds by United States v. Corner, 598 F.3d 411,
416 (7th Cir. 2010) (en banc). Therefore, Eads’s challenge to
his witness tampering conviction fails.
D. New Trial Not Warranted Since No Newly Discov‐
ered Evidence
In his pro se brief, Eads contends that the district court
should have granted his motion for a new trial based on
purported newly discovered evidence. In order to receive a
new trial based on newly discovered evidence, defendants
must demonstrate that the evidence “(1) came to their
knowledge only after trial; (2) could not have been discov‐
ered sooner had due diligence been exercised; (3) is material
and not merely impeaching or cumulative; and (4) would
probably lead to an acquittal in the event of a retrial.” United
States v. Ryan, 213 F.3d 347, 351 (7th Cir. 2000). As the re‐
viewing court, “we approach such motions with great cau‐
tion and are wary of second‐guessing the determinations of
both judge and jury.” Id. As a result, we review a district
court’s denial of a motion for a new trial for an abuse of dis‐
cretion. United States v. Farmer, 717 F.3d 559, 564 (7th Cir.
2013).
Eads’s scattershot motion contained a list of twenty‐four
grounds for a new trial. We need not recount all of those
claims here; suffice it to say that his evidence was less than
convincing. He specifically claimed that his mother, Linda
Eads, had alibi information suggesting that Eads was not at
home on October 26, 2011. Yet he never explained the nature
of this evidence, when he learned of it, or how such evidence
would have resulted in an acquittal. As the district court ob‐
served, Eads called his mother as a witness at trial but never
questioned her about his whereabouts on October 26. More‐
No. 12‐2466 21
over, he presented no affidavits or testimony from his moth‐
er that might tend to prove that he was innocent. And at the
evidentiary hearing on his motion for a new trial, Eads
called Asbury, Rachel, and his father—he did not offer any
testimony from his mother. Therefore, we conclude that the
district court did not abuse its discretion when it denied
Eads’s motion for a new trial.
E. Discussion of § 3553(a) Factors Was Sufficient
The last matter to address is sentencing. Eads claims that
he was improperly sentenced on the witness tampering
count because the district court did not sufficiently discuss
the factors under 18 U.S.C. § 3553(a) with respect to this
charge as distinct from the child pornography charges. We
review claims of procedural error at sentencing de novo.
United States v. Schuster, 706 F.3d 800, 808–09 (7th Cir. 2013).
The district court initially sentenced Eads to serve 240
months on Count 1 (distributing child pornography), 240
months on Count 2 (possessing child pornography) to run
consecutively, and a term of 36 months on Count 5 (witness
tampering) to run concurrent to Counts 1 and 2. After being
advised by the probation officer (off the record) that the
maximum possible sentence for possession in Count 2 was
120 months, the district court immediately amended the rul‐
ing to reflect this change, but increased the sentence for the
witness tampering in Count 5 to 120 months and stated that
all three counts would run consecutively. The result was that
the total number of months remained at 480 months’ impris‐
onment—ten years below the low‐end of the authorized
Guidelines range of 50 years’ imprisonment.
22 No. 12‐2466
On appeal, Eads points to 18 U.S.C. § 3584(b), which
states that “[t]he court, in determining whether the terms
imposed are to be ordered to run concurrently or consecu‐
tively, shall consider, as to each offense for which a term of
imprisonment is being imposed, the factors set forth in sec‐
tion § 3553(a).” Eads contends (without citation to any con‐
trolling authority) that the district court should have dis‐
cussed the § 3553(a) factors specifically with respect to the
tampering charge when it sentenced him and when it
lengthened his sentence on this charge.
A sentence below the Guidelines range is presumed rea‐
sonable, see United States v. Rosen, No. 12‐2101, __F.3d__,
2013 WL 4081277, at *9 (7th Cir. August 14, 2013), and our
review of the sentencing transcript belies any notion of error
here. We have said before that “[a] district court need not
discuss all of the § 3553(a) factors, but it must give them
meaningful consideration.” United States v. Mantanes, 632
F.3d 372, 374 (7th Cir. 2011). Here, the district court fully dis‐
cussed the sentencing factors under § 3553(a) over several
transcript pages, explaining that it “considered the nature
and circumstances of the offense, the defendant’s criminal
history and characteristics, the need for the sentence to re‐
flect the seriousness of the offense, to promote respect for the
law, to provide just punishment, and to provide an adequate
deterrence to criminal conduct of this nature by others who
might try to do similar things.” See 18 U.S.C. § 3553(a). To
this end, the court recounted the particularly disturbing na‐
ture of the child pornography in question (including the im‐
age with text offering to “rent” a child for sex), the testimony
at sentencing of at least one woman whom Eads brutally co‐
erced into sexual exploitation at the age of fifteen, Eads’s
calls to his wife from jail in an effort to manipulate her, and
No. 12‐2466 23
his “inordinate preoccupation” with law enforcement in
light of the evidence that he impersonated police officers on
more than one occasion. Though the court did not dwell on
the witness tampering charge, the record demonstrates that
the sentencing process was fair overall. See Gall v. United
States, 552 U.S. 38, 50 (2007). As a result, we conclude that
the district court clearly articulated the basis for its decision
and the sentence was reasonable.
III. CONCLUSION
For all of the reasons explained above, we AFFIRM Eads’s
conviction and sentence.