United States v. Reginald Lonnel Cray

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-11059
JANUARY 12, 2012
Non-Argument Calendar
JOHN LEY
________________________ CLERK

D.C. Docket No. 1:10-cr-00075-JRH-WLB-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,

versus

REGINALD LONNEL CRAY,

llllllllllllllllllllllllllllllllllllll ll Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Georgia
________________________

(January 12, 2012)

Before TJOFLAT, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:
 Reginald Lonnel Cray appeals his convictions for receipt of child

pornography, in violation of 18 U.S.C. § 2252A(a)(2), and possession of child

pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B).1 On appeal, Cray

presents several arguments for the reversal of his convictions. Before addressing

his arguments, we set out, in the light most favorable to the verdicts, salient facts

the evidence established.2

The Government’s case was put together by agents of the Department of

Homeland Security, Immigration and Customs Enforcement, the FBI, and the

Georgia Bureau of Investigation. Using various investigative techniques,

including undercover access to a particular subscription-based child pornography

website (“Website”), the agents obtained detailed information about the Website’s

1
Cray was convicted on a superceding indictment. The district court dismissed the first
indictment without prejudice on speedy trial grounds.
2
We do this because Cray challenges the sufficiency of the evidence to convict. We review
the sufficiency of the evidence de novo. United States v. Frazier, 605 F.3d 1271, 1278 (11th Cir.
2010). In making this determination, we consider “the evidence in the light most favorable to the
Government, with all reasonable inferences and credibility choices made in the Government’s
favor.” Id. (citation omitted). The evidence need not be inconsistent with every reasonable
hypothesis except that of guilt, provided a reasonable trier of fact could find that the evidence
established the defendant’s guilt beyond a reasonable doubt. United States v. Merrill, 513 F.3d
1293, 1299 (11th Cir. 2008). Credibility questions are answered by the jury, and we will assume
that the jury answered them all in a manner that supports the verdict. United States v. Thompson,
473 F.3d 1137, 1142 (11th Cir. 2006).

2
subscribers and associated e-mail accounts.3

On March 25, 2008, Cray, using the name Reginald Cray, a First National

Bank South (“FNB”) credit card, a post office box address in Fort Gordon,

Georgia,4 an email address gqfats06@yahoo.com, and a telephone number,

purchased a 30-day subscription to the Website for $79.99.5 After Cray

subscribed, BellSouth.net.Inc., his internet service provider, assigned a specific

Internet Protocol (“IP”) address, 68.217.244.87, to his residence. The next day,

March 26, at 1:42 a.m., Cray, using that IP address, accessed the Website and

viewed several child pornographic movies. Shortly thereafter, BellSouth changed

the IP assigned to the residence to 74.203.181.25. On March 27, 2009, Cray used

an IP address controlled by Comcast Communications, 67.162.248.119, to access

the Website from Dover, Delaware. He viewed 14 movies and three pages of

child pornography on that occasion.6 Using his 74.203.181.25 IP address, Cray

3
The agents executed a search warrant on the Website’s computer server which housed the
child pornography, e.g., images, videos, and movies. The search uncovered the weblogs maintained
by the Website that detailed the activities of the subscribers: when they logged in, what they viewed
and the Internet Protocol address they used to access the server.
4
Cray, an officer in the Army reserves, was on active duty at Fort Gordon. The post office
box address and the telephone number belonged to him.
5
FNB sent a bank statement containing the credit card $79.99 charge to the post office box.
Cray chose the user name “gqfats06" in accessing the Website’s server.
6
Cray had gone to Washington, D.C. to attend a job fair held from March 26 to March 31.
His FNB bank statement showed two ATM withdrawals in Dover, Delaware, on March 28.

3
also accessed the Website on April 1, 11, 13, 14 , 2008, and viewed countless

pieces of child pornography—movies, videos, and images.

On April 28, 2008, agents met with Cray at his residence and executed a

search warrant. While they were there, he consented to an interview. He

admitted to the agents that, using his Dell laptop, he had accessed the Website,

knowing that it contained child pornography, and viewed the contents of its server.

He was aware that the contents involved real children, not “midgets or morphed

images.” He said that he had viewed child pornography over the Website for

about four years, but was careful not to download or save the images to his

computer. A forensic evaluation of Cray’s laptop revealed that Cray had viewed at

least 19 videos.

With this brief recitation of Cray’s use of his subscription to the Website,

we turn to the arguments Cray presents.

I.

Cray argues that the district court erred in denying his motion for judgment

of acquittal, contending that the evidence was insufficient to convict.7 The

evidence was insufficient, he submits, because no actual images of child

7
Cray also contends that the district court abused its discretion in denying his motion for
new trial. The contention is frivolous, thus warranting no discussion.

4
pornography were found on his computer. We review de novo the denial of a

motion for judgment of acquittal on sufficiency-of-evidence grounds. United

States v. Friske, 640 F.3d 1288, 1290 (11th Cir. 2011).

Pursuant to § 2252A(a)(2) of Title 18 of the U.S. Code, it is illegal for any

person to (1) knowingly receive or distribute (2) any child pornography or material

containing child pornography (3) that has been mailed or transported in or

affecting interstate commerce by any means, including by computer. 18 U.S.C.

§ 2252A(a)(2). Pursuant to § 2252A(a)(5)(B), it is illegal for any person to

(1) knowingly possess or access with intent to view (2) any material that contains

an image of child pornography (3) that has been transported in or affecting

interstate commerce by any means, including by computer. 18 U.S.C.

§ 2252A(a)(5)(B).

In United States v. Pruitt, 638 F.3d 763, 765 (11th Cir. 2011), the defendant

sought out and viewed child pornography online, and child pornography images

appeared in the cache and unallocated space of his computer. We noted that

unallocated space contains deleted data that cannot be seen or accessed by the user

without forensic software, is written over to store new information, and even if

retrieved, all that can be known about the file, other than its content, is that it once

existed on the computer’s hard drive. Id. at 765 n.2. We stated that evidence that

5
a person sought out child pornography over the internet, and has a computer

containing child-pornography images, even in the unallocated space or cache, “can

count as circumstantial evidence that a person has knowingly received child

pornography.” Id. at 766 (quotations and brackets omitted). We noted that the

jury had no obligation to credit Pruitt’s expert, who testified that a virus was

responsible for the images found in the cache and unallocated space, and held that

a reasonable jury could have concluded beyond a reasonable doubt that Pruitt had

knowingly received child pornography. Id. at 767.

As a preliminary matter, Cray does not dispute that the materials he and

other subscribers viewed on the Website met the definition of child pornography,

or that they were transported through interstate or foreign commerce.

Accordingly, he has abandoned any claims in this respect. See United States v.

Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003) (stating that issues not raised

on appeal will be considered abandoned).

Because the jury reasonably could find beyond a reasonable doubt that Cray

accessed the Website with intent to view child pornography, in violation of

§ 2252A(a)(2) and (a)(5)(B), the district court did not err in denying his motion for

judgment of acquittal.

II.

6
 Cray argues that the district court erred in dismissing his first indictment

without prejudice for a violation of the Speedy Trial Act, 18 U.S.C. §§ 3161-3174,

because there should be a presumption in favor of dismissal with prejudice for

violations of the Act, and because the factors set forth in the Act required

dismissal with prejudice.

We review a district court’s decision to dismiss an indictment with or

without prejudice for a violation of the Speedy Trial Act for abuse of discretion.

United States v. Brown, 183 F.3d 1306, 1309 (11th Cir. 1999). There is no

preference for dismissal with or without prejudice. Id. at 1310; see United

States v. Taylor, 487 U.S. 326, 335, 108 S.Ct. 2413, 2418, 101 L.Ed.2d 297 (1988)

(stating that the Speedy Trial Act left the decision to dismiss with or without

prejudice to the discretion of district courts). The district court, however, must

consider three factors in making its decision: (1) the seriousness of the offense;

(2) the facts and circumstances of the case leading to the dismissal; and (3) the

impact of a reprosecution on the administration of justice and the Speedy Trial

Act. Brown, 183 F.3d at 1310 (quoting 18 U.S.C. § 3162(a)(1) and (2)).

Under the first factor, where the offense is serious, the district court should

dismiss with prejudice only for a correspondingly severe delay. United States v.

Russo, 741 F.2d 1264, 1267 (11th Cir. 1984). We have held that a severe delay of

7
68 days was not, by itself, sufficient to require dismissal of an indictment with

prejudice. United States v. Williams, 314 F.3d 552, 560 (11th Cir. 2002). We also

have recognized the seriousness of offenses involving the possession of child

pornography. See United States v. Pugh, 515 F.3d 1179, 1198-99 (11th Cir. 2008)

(recognizing, in the sentencing context, that receiving or possessing child

pornography is a serious crime).

Under the second factor, if the delay is attributable to the Government’s

negligence or inadvertence, dismissal with prejudice is not automatically required

“[w]here the violation of the Act is slight and the other two factors militate in

favor of reprosecution.” Russo, 741 F.2d at 1267. We have expressed a

preference for dismissal without prejudice where the delay is the result of

administrative confusion by the district court. United States v. Miranda, 835

F.2d 830, 834 (11th Cir. 1988).

Under the third factor, there is almost always some tension between the

administration of justice and administration of the Act because the defendant can

argue that dismissal without prejudice renders the Act effectively meaningless,

while the Government can argue that the public interest requires that offenders be

brought to justice. Williams, 314 F.3d at 559-60. This factor also allows courts to

consider aggravating and mitigating factors, such as the length of the delay and

8
prejudice to the defendant. Id. at 560.

As an initial matter, there is no preference for one type of dismissal with or

without prejudice under the Speedy Trial Act, and, thus, Cray’s argument that we

should adopt a presumption in favor of dismissal with prejudice is without merit.

Because the first two factors militate in favor of dismissal without prejudice while

the third factor is neutral, and because the delay resulted in part from the district

court’s administrative confusion, the court did not abuse its discretion in

dismissing Cray’s first indictment without prejudice.

III.

Cray argues that he is entitled to suppression of evidence discovered during

the search of his residence because the affidavit for the search warrant was based

on his IP subscriber information and bank records that the Government obtained

improperly through the use of administrative summonses, pursuant to 19 U.S.C.

§ 1509. He argues, moreover, that the use of the summonses violated the Right to

Financial Privacy Act (“RFPA”), 12 U.S.C. §§ 3401-3417, and the Electronic

Communications Privacy Act (“ECPA”), 18 U.S.C. §§ 1510-1522, and that those

violations entitle him to suppression of evidence.

Our review of a district court’s denial of a motion to suppress is a mixed

question of law and fact. United States v. Delancy, 502 F.3d 1297, 1304 (11th Cir.

9
2007). We review a district court’s findings of fact for clear error, construing the

evidence in the light most favorable to the party that prevailed in the district court.

We review a district court’s interpretation and application of the law de novo. Id.

A statutory violation by itself, without an underlying constitutional violation, is

insufficient to justify the exclusion of evidence obtained in violation of the statute

in question, unless the defendant shows that Congress provided such a remedy for

a violation of the statute. United States v. Thompson, 936 F.2d 1249, 1251 (11th

Cir. 1991) (collecting numerous extra-circuit decisions).

The ECPA provides that the Government may require an electronic

communication service to disclose a record or other information pertaining to a

subscriber or customer under certain, limited circumstances, including when the

government obtains (1) a warrant, (2) a court order, (3) consent of the subscriber,

or (4) an administrative subpoena. 18 U.S.C. § 2703(c). The ECPA authorizes an

aggrieved party to file a civil action for a knowing or intentional violation of the

statute by a person or entity other than the United States. 18 U.S.C. § 2707(a).

The Act prescribes relief in the form of preliminary equitable or declaratory relief,

damages, and reasonable attorney’s fees and litigation costs. Id. § 2707(b). The

ECPA further provides that the remedies and sanctions it provides are the only

judicial remedies and sanctions for nonconstitutional violations of the Act.

10
18 U.S.C. § 2708.

In interpreting the Wiretap Act, 18 U.S.C. §§ 2510-2522, which Title I of

the ECPA amended to address the interception of electronic communications, we

held that, “while the Wiretap Act clearly provides criminal and civil sanctions for

the unlawful interception of electronic communications, the Act provides no basis

for moving to suppress such communications.” United States v. Steiger, 318

F.3d 1039, 1046 (11th Cir. 2003) (citation omitted). We stated that “[d]espite the

fact that the ECPA amended numerous sections of the Wiretap Act to include

‘electronic communications,’ the ECPA did not amend § 2515,” which authorized

suppression of evidence as a remedy solely for the illegal interception of wire and

oral communications, but not for electronic communications. Id. at 1050. We

concluded that the Wiretap Act did not provide a statutory suppression remedy for

unlawfully acquired electronic communications because “the legislative history

makes clear that a statutory suppression remedy does not exist for unlawful

interceptions of ‘electronic communications.’” Id. at 1051.

We have not addressed whether the RFPA provides a statutory suppression

remedy. The RFPA prescribes remedies for violations of the Act in the form of a

$100 fine, actual damages sustained by the customer, punitive damages, and costs

and attorney’s fees. 12 U.S.C. § 3417(a). The remedies and sanctions described

11
in the RFPA are exclusive. Id. § 3417(d).

In order for evidence to be suppressed based on a violation of the Fourth

Amendment, a claimant bears the burden of proving that the search was unlawful

and that he had a legitimate expectation of privacy. United States v. McKennon,

814 F.2d 1539, 1542 (11th Cir. 1987). To establish a reasonable expectation of

privacy in the object of a challenged search, the claimant must show (1) that he

manifested “a subjective expectation of privacy,” and (2) a willingness by society

“to recognize that expectation as legitimate.” Id. at 1543. If the claimant

establishes an expectation of privacy, then the burden shifts to the government to

show that the search was reasonable under a recognized exception to the warrant

requirement. United States v. Harris, 526 F.3d 1334, 1338 (11th Cir. 2008).

The Supreme Court consistently has held that there is no legitimate

expectation of privacy in information a person voluntarily reveals to third parties.

United States v. Miller, 425 U.S. 435, 442-43, 96 S.Ct. 1619, 1624, 48 L.Ed.2d 71

(1976). Specifically, the Court has held that there is no reasonable expectation of

privacy in bank records, including financial statements, because the records only

contained information the customer voluntarily conveyed to the bank and its

employees in the ordinary course of business. Id. at 442, 96 S.Ct. at 1624. We

have not addressed in a published opinion whether a defendant has a reasonable

12
expectation of privacy in subscriber information provided to an internet service

provider.

The exclusionary rule is a judicially created remedy designed to safeguard

Fourth Amendment rights through its deterrent effect, and requires that evidence

obtained through an illegal search may not be used by the government in a

subsequent criminal prosecution. United States v. Martin, 297 F.3d 1308, 1312

(11th Cir. 2002). The Supreme Court created a good-faith exception to this rule,

stating that courts should generally not hold inadmissible evidence obtained by

officers acting in reasonable reliance upon a search warrant later found to be

unsupported by probable cause. United States v. Leon, 468 U.S. 897, 922, 104

S.Ct. 3405, 3420, 82 L.Ed.2d 677 (1984). Because the purpose of the

exclusionary rule is to deter unlawful police misconduct, the Leon good-faith

exception will apply when officers engaged in “objectively reasonable law

enforcement activity” and acted in good faith when they obtained the search

warrant. Martin, 297 F.3d at 1313.

The Leon good-faith exception applies in all but four sets of circumstances.

Those circumstances are: (1) where the judge issuing the warrant was misled by

information in an affidavit that the affiant knew was false or would have known

was false except for his reckless disregard of the truth; (2) where the issuing judge

13
has “wholly abandoned” the neutral judicial role such that no reasonably well

trained officer would rely on the warrant; (3) where the warrant is so lacking in

indicia of probable cause that official belief in its validity is entirely unreasonable;

and (4) where the warrant is facially deficient. Leon, 468 U.S. at 923, 104 S.Ct.

at 3421.

Regardless of whether the federal agents violated the ECPA or RFPA

through their use of administrative summonses, both statutes exclusively authorize

civil remedies for violations and do not provide suppression remedies. Thus, Cray

must show that the Government’s use of his subscriber information and bank

records violated the Fourth Amendment to warrant suppression of evidence. Even

assuming that Cray had a protected privacy interest in his subscriber information

and bank records, the good-faith exception to the exclusionary rule applies

because he does not argue, and nothing in the record indicates, that any of the

recognized exceptions to the good-faith rule applies.

IV.

Cray argues that the district court erred in permitting the Government’s

expert to testify that, in his opinion, Cray personally operated his laptop to access

a child pornography website while in Dover, Delaware because the opinion was

outside the scope of his expertise, was unreliable, and could have been made by

14
the Government during closing argument.

We review a district court’s decision regarding the admissibility of expert

testimony and the reliability of an expert opinion for abuse of discretion. United

States v. Frazier, 387 F.3d 1244, 1258 (11th Cir. 2004) (en banc). In doing so, we

will affirm unless we find that the district court applied the wrong legal standard

or made a clear error of judgment. Id. at 1259.

Rule 702 of the Federal Rules of Evidence provides that:

A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to determine a
fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods;
and

(d) the expert has reliably applied the principles and methods to the
facts of the case.

Fed. R. Evid. 702 (2011). The Supreme Court has provided a non-exclusive list of

factors for district courts to consider in determining the reliability of scientific

expert opinions. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,

593-94, 113 S.Ct. 2786, 2796-97, 125 L.Ed.2d 469 (1993). These factors include:

15
(1) whether the expert’s theory can be and has been tested; (2) whether the theory

has been subjected to peer review and publication; (3) the known or potential rate

of error of the particular scientific technique; and (4) whether the technique is

generally accepted in the scientific community. Id. This same criteria applies to

assess the reliability of non-scientific, experience-based testimony. Frazier, 387

F.3d at 1262. These factors are general guidelines and are illustrative, not

exhaustive, and not every factor will apply in every case. Expert testimony will

assist the trier of fact if it concerns matters that are beyond the understanding of

the average lay person. Id.

The Government expert’s opinion that Cray accessed the child pornography

website from his laptop while in Dover, Delaware was not outside the scope of the

expert’s expertise, was not unreliable, and would be helpful to a jury.

Accordingly, the district court did not abuse its discretion in admitting the expert’s

testimony.

V.

Cray argues that the district court erred in allowing the

Government’s expert to testify to inadmissible hearsay data relating to the

geographic location of IP addresses. Cray argues that the hearsay identification of

the geolocation of IP addresses based on internet databases or searches is not

16
reasonably relied on by computer experts, and that, to the extent the district court

weighed the testimony under Federal Rule of Evidence 703, the admission of this

testimony was clear error. Cray also argues that the expert’s reliance on hearsay

instead of producing a witness to testify as to the IP address geolocation

information violated the Confrontation Clause.

We review a district court’s evidentiary rulings for abuse of discretion.

United States v. Perez-Oliveros, 479 F.3d 779, 783 (11th Cir. 2007). We review

de novo whether hearsay statements are “testimonial” for purposes of the

Confrontation Clause. United States v. Caraballo, 595 F.3d 1214, 1226 (11th Cir.

2010). A hearsay objection is insufficient to preserve a Confrontation Clause

claim on appeal. United States v. Chau, 426 F.3d 1318, 1321-22 (11th Cir. 2005).

We review evidentiary rulings that are not specifically objected to at trial, as

is the case here, for plain error only. United States v. Williford, 764 F.2d 1493,

1502 (11th Cir. 1985). To establish plain error, a defendant must show that there is

“(1) error, (2) that is plain, and (3) that affects substantial rights. If all three

conditions are met, an appellate court may then exercise its discretion to notice a

forfeited error, but only if (4) the error seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” United States v. Swatzie, 228 F.3d

1278, 1281 (11th Cir. 2000) (ellipses and brackets omitted). “An error is plain if it

17
is obvious and clear under current law.” United States v. Eckhardt, 466 F.3d 938,

948 (11th Cir. 2006). “An error that affects substantial rights is one that affected

the outcome of the district court proceedings.” United States v. Henderson, 409

F.3d 1293, 1308 (11th Cir. 2005) (internal quotations omitted).

Federal Rule of Evidence 703 allows experts to rely upon testimony which

itself would not have been admissible if experts in the particular field would

reasonably rely on those kinds of facts or data in forming an opinion on the

subject. Fed. R. Evid. 703 (2011). Rule 703 requires a balancing inquiry,

however, stating that “if the facts or data would otherwise be inadmissible, the

proponent of the opinion may disclose them to the jury only if their probative

value in helping the jury evaluate the opinion substantially outweighs their

prejudicial effect.” Id.

The Sixth Amendment provides that “[i]n all criminal prosecutions, the

accused shall enjoy the right . . . to be confronted with the witnesses against

him . . . .” U.S. Const. amend. VI. For purposes of both the Confrontation Clause

and the Federal Rules of Evidence, hearsay statements are defined as oral or

written assertions, or nonverbal conduct of a person if it is intended to be an

assertion. See United States v. Lamons, 532 F.3d 1251, 1263 (11th Cir. 2008)

(citing Federal Rule of Evidence 801(a) in analyzing a Confrontation Clause

18
issue). Where the statements in question are made by machines and not by

humans, they are exempt from the purview of the Confrontation Clause. Id.

at 1264. The Confrontation Clause bars the admission of hearsay evidence that is

“testimonial” unless the witness is unavailable and the defendant had a prior

opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 68, 124

S.Ct. 1354, 1374, 158 L.Ed.2d 177 (2004). “Testimonial” statements are typically

“solemn declaration[s] or affirmation[s] made for the purpose of establishing or

proving some fact,” and may include “material such as affidavits, custodial

examinations, prior testimony that the defendant was unable to cross-examine, or

similar pretrial statements that declarants would reasonably expect to be used

prosecutorially.” Id. at 51, 124 S.Ct. at 1364.

In Davis, the Supreme Court stated that statements are nontestimonial when

made in the course of a police interrogation under circumstances that objectively

indicate that the primary purpose of the interrogation is to enable police to respond

to an ongoing emergency. Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266,

165 L.Ed.2d 224 (2006). Alternatively, statements are testimonial when there is

no ongoing emergency and the statement is made under circumstances objectively

indicating that the primary purpose of the interrogation is to prove past events that

are potentially relevant to future criminal prosecution. Id. at 822, 126 S.Ct.

19
at 2273-74. Accordingly, the Court held that a victim’s statements in response to a

911 operator’s questions were not testimonial hearsay, the admission of which

would violate the Confrontation Clause, because the primary purpose of the

questioning was to enable police assistance in response to an ongoing emergency.

Id. at 828, 126 S.Ct. at 2277.

The Court, in Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S.Ct.

2527, 174 L.Ed.2d 314 (2009), recently revisited the issue of what constitutes a

testimonial statement. There, the defendant objected to the admission of three

laboratory “certificates of analysis” showing that seized substances contained

cocaine. Id. at __, 129 S.Ct. at 2531. The certificates were admitted in court as

prima facie evidence of the composition, quality, and net weight of the substance

at issue in the prosecution, pursuant to state law. Id. The Court held that these

certificates, which it described as “quite plainly affidavits,” were testimonial

statements because they were made under oath for the purpose of establishing

some fact, and under circumstances where an objective witness could reasonably

believe that “the statement would be available for use at a later trial.” Id. at ___,

129 S.Ct. at 2531-32. Thus, the Court held that, absent a prior opportunity to

cross-examine the analysts, the defendant was entitled to confront them at trial.

Id. at ___, 129 S.Ct. at 2532.

20
 Under plain-error review, Cray does not cite any authority indicating that an

expert’s reliance on an online database or internet search to determine the

geolocation of IP addresses was unreasonable. Thus, any error in admitting the

expert’s testimony would not be plain. Similarly, even assuming that the district

court erred in conducting the balancing test required by Rule 703, Cray does not

cite any binding authority establishing that a district court abuses its discretion by

admitting expert testimony relating to the geolocation of IP addresses based on

searches of the type relied on here. Thus, any such error would not be plain. With

regard to Cray’s Confrontation Clause argument, assuming that the search results

qualify as “statements,” Cray cites no authority indicating that such statements are

“testimonial” for Crawford purposes; thus, any such error would not be plain.

Accordingly, each of Cray’s arguments fails at the second prong of the plain-error

analysis.

VI.

Relying on Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136

L.Ed.2d 574 (1997), Cray argues that the district court erred in allowing the

publication of videos taken from the child pornography website’s server to the jury

because he did not actually possess those videos.

As we did with respect to the district court’s other evidentiary rulings, we

21
review this ruling for abuse of discretion. We reverse the defendant’s conviction

only if the purportedly erroneous ruling affected the defendant’s substantial rights.

United States v. Dodds, 347 F.3d 893, 897 (11th Cir. 2003). Federal Rule of

Evidence 401 provides that: “Evidence is relevant if: (a) it has any tendency to

make a fact more or less probable than it would be without the evidence; and (b)

the fact is of consequence in determining the action.” Fed. R. Evid. 401 (2011).

Relevant evidence is admissible unless the Constitution, a federal statute, the

Federal Rules of Evidence, or other rules prescribed by the Supreme Court provide

otherwise. Fed. R. Evid. 402 (2011). Federal Rule of Evidence 403 provides that:

“The court may exclude relevant evidence if its probative value is substantially

outweighed by a danger of one or more of the following: unfair prejudice,

confusing the issues, misleading the jury, undue delay, wasting time, or needlessly

presenting cumulative evidence.” Fed. R. Evid. 403 (2011). However, we have

cautioned that Rule 403

is an extraordinary remedy which the district court should invoke
sparingly, and the balance should be struck in favor of admissibility.
We have also said that in reviewing issues under Rule 403, we look at
the evidence in a light most favorable to its admission, maximizing its
probative value and minimizing its undue prejudicial impact.

United States v. Alfaro-Moncada, 607 F.3d 720, 734 (11th Cir. 2010) (citation

and quotations omitted), cert. denied, 131 S.Ct. 1604 (2011).

22
 In Dodds, we affirmed the admission and publication of 66 images of child

pornography out of 3,400 such images found in the defendant’s possession.

Dodds, 347 F.3d at 899. We first noted that the admitted images were not

“extrinsic to the crime charged,” but rather were a part of the thousands of images

of child pornography which Dodds was convicted of possessing. Id. at 898. We

held that the images were probative because, inter alia, they tended to show that

Dodds knew the images were child pornography, they showed that the images

were child pornography, and they inferred Dodds’s intent to collect that

pornography. Id. at 899. We also noted that “only a very small proportion of

images found in the defendant’s possession were shown to the jury,” and that the

district court had taken precautions to prevent unfair prejudice by excusing

potential jurors during voir dire who indicated that they would be unable to render

a fair verdict. Under these circumstances, we held that it was not an abuse of

discretion for the district court to admit the images. Id.

More recently, in Alfaro-Moncada, we addressed the defendant’s contention

that, because he had stipulated that the DVDs at issue contained child

pornography, the district court erred by admitting five still images contained on

the DVDs. Alfaro-Moncada, 607 F.3d at 734. We held that admission of the

images served the valid purpose of proving that the DVDs actually contained child

23
pornography, even though the defendant had so stipulated. We also stated that the

images tended to show that the defendant “knew he was in possession of child

pornography, a fact that he did not stipulate.” In determining that any possible

prejudice did not outweigh the probative value, we noted that “the jury was only

shown a small number of the images on the DVDs–only 5 out of 4,650.” Id.

In Old Chief, the Supreme Court held that, with regard to the specific

problem raised by 18 U.S.C. § 922(g)(1) and its prior-conviction element, charges

encompassing a prior conviction created a risk of unfair prejudice to the defendant

if evidence of the name or nature of the prior offense was admitted at trial. Old

Chief, 519 U.S. at 185, 117 S.Ct. at 652. As a solution to this problem, the Court

held that the government must accept a defendant’s stipulation to the fact of a

prior conviction, rather than introducing such prejudicial evidence. Id. at 191, 117

S.Ct. at 655-56. The Court noted that this is the general rule when a defendant’s

felony-convict status is at issue, but that the prosecutor’s choice will generally

survive a Rule 403 inquiry when “a defendant seeks to force the substitution of an

admission for evidence creating a coherent narrative of his thoughts and actions in

perpetrating the offense for which he is being tried.” Id. at 191-92, 117 S.Ct.

at 655-56.

As an initial matter, Cray’s reliance on Old Chief is unavailing, as

24
felony-convict status was not at issue, nor does Cray argue that his stipulation that

the videos constituted child pornography rendered their admission cumulative or

overly prejudicial. The videos shown to the jury were relevant because they

tended to infer Cray’s intent to receive and access with intent to view child

pornography, and proved that the videos available on the Website were actually

child pornography. Moreover, the images were not extrinsic to the crime, as they

were the images Cray allegedly received or accessed with intent to view. In light

of Dodds and Alfaro-Moncada, the admission and publication of the videos was

not so prejudicial as to warrant the extraordinary remedy of ruling them

inadmissible under Rule 403. Accordingly, the district court did not abuse its

discretion in admitting the videos and allowing the government to show samples

of the videos to the jury.

VII.

Cray argues that the district court abused its discretion in failing to give his

requested jury instruction that out-of-court statements must be corroborated.

We review a district court’s refusal to give a proposed jury instruction for

abuse of discretion. United States v. Chirinos, 112 F.3d 1089, 1101 (11th Cir.

1997). A district court is not required to give a requested instruction if it would

not assist the jury in resolving an issue. In determining whether the district court

25
abused its discretion, we consider three factors: (1) whether the instruction is a

substantially correct statement of the law; (2) whether the jury instruction given

addressed the substance of the requested instruction; and (3) whether the

defendant’s ability to present an effective defense was seriously impaired by the

court’s failure to give the requested instruction. Id. A district court need not

grant a requested instruction that would tend to confuse the jury. United States v.

Silverman, 745 F.2d 1386, 1399 (11th Cir. 1984).

In United States v. Ryan, 289 F.3d 1339, 1345 (11th Cir. 2002), the

defendant requested an instruction that was a substantially correct statement of the

law of entrapment, and the Government did not argue that the charge the court

gave the jury addressed the substance of the requested instruction. The district

court had permitted Ryan to argue his entrapment defense to the jury, allowed him

to cross-examine witnesses on the issue, and in its charge to the jury, provided the

jury opportunities to consider the defense. In light of the opportunities for the jury

to consider Ryan’s entrapment defense, we held that the district court’s failure to

include specific instructions on the issue did not seriously impair Ryan’s

presentation of the defense, and, thus, the district court did not abuse its discretion.

Id.

The Supreme Court has held in a case decided prior to Miranda v. Arizona,

26
384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), that an accused may not be

convicted based solely on his own uncorroborated confession. Smith v. United

States, 348 U.S. 147, 152, 75 S.Ct. 194, 197, 99 L.Ed. 192 (1954). We have not

addressed the issue of whether the jury must be instructed that an out-of-court

confession must be corroborated.

As an initial matter, according to Cray’s requested instruction, proof beyond

a reasonable doubt that the alleged crime was committed “may, but does not

necessarily constitute supporting evidence of a defendant’s statement.” Given the

likelihood that this instruction would confuse the jury as to the proof required to

convict, the district court did not abuse its discretion in denying Cray’s requested

instruction. Assuming that the instruction was not confusing and was a

substantially correct statement of law, the court’s jury charge was sufficient to

allow Cray to challenge his alleged out-of-court confession to federal agents, and,

thus, did not impair his defense. Accordingly, the district court did not abuse its

discretion in refusing to instruct the jury as Cray requested.

VIII.

Cray argues that the district court erred in allowing the Government’s

summary chart—which matched filenames found in his laptop registry with files

accessed on the Website by a subscriber using Cray’s name and information—to

27
go to the jury. Cray relies on United States v. Malol, 476 F.3d 1283 (11th Cir.

2007), in arguing that a district court’s abuse of discretion in allowing the jury to

use a summary chart during deliberations warrants reversal in a close case.

We review a district court’s ruling regarding the use of summary charts for

an abuse of discretion. United States v. Richardson, 233 F.3d 1285, 1293 (11th

Cir. 2000). Under Federal Rule of Evidence 1006, “[t]he proponent may use a

summary, chart, or calculation to prove the content of voluminous writings,

recordings, or photographs that cannot be conveniently examined in court.” Fed.

R. Evid. 1006 (2011). We have noted that summary charts are to be used with

caution, and that the district court must make it clear to the jury that the ultimate

decision of what weight to give the evidence lies with the jury. Richardson, 233

F.3d at 1293-94. Where the defendant has the opportunity to cross-examine a

witness regarding a disputed issue and to present his own version of the case, the

likelihood of any error in admitting a summary chart is diminished. Id. at 1294.

We have affirmed the use of a summary chart where the Government complied

with Rule 1006, the defendant had an opportunity to cross-examine the

Government’s witnesses about the chart, the defendant used the chart during the

trial and was not prejudiced, and the district court gave a cautionary instruction to

the jury regarding the use of the chart. United States v. Hill, 643 F.3d 807, 843

28
(11th Cir. 2011). We presume that juries follow the district court’s instructions.

Id.

In Malol, the defendant appealed the admission of a summary chart

compiling data from the defendant’s files regarding losses suffered by hundreds of

the defendant’s customers. Malol, 476 F.3d at 1290. Because the evidence

against the defendant was overwhelming and the chart merely repeated the same

type of evidence that already had been presented, we concluded that, even if the

district court erred in admitting the chart, that error was harmless and did not

warrant reversal. Id. at 1291-92.

As an initial matter, Cray’s reliance on Malol is misplaced, as he misstates

the holding of that case. The information summarized on the chart was established

by the Government’s expert’s testimony prior to the court’s admission of the chart,

the chart summarized approximately 160 pages of voluminous and technical

computer data, Cray had ample opportunity to cross-examine the expert regarding

the chart and its contents, and the district court gave cautionary instructions to the

jury regarding the use of the chart. Accordingly, the district court did not abuse its

discretion in admitting that evidence.

AFFIRMED.

29