United States v. Dudley

United States Court of Appeals
For the First Circuit

Nos. 14-2020
14-2040

UNITED STATES OF AMERICA,

Appellee,

v.

JOEL DUDLEY,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Lynch, Thompson, and Kayatta,
Circuit Judges.

Lauren Wille, with whom John Paul DeGrinney and DeGrinney Law
Offices were on brief, for appellant.
Renée M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief, for
appellee.

October 30, 2015
 THOMPSON, Circuit Judge. After two separate jury

trials, Defendant-Appellant Joel Dudley (Dudley) was convicted of

one count of possession of child pornography, in violation of 18

U.S.C. §§ 2252A(a)(5)(B) and 2256(8)(A), and one count of false

declaration before the court, in violation of 18 U.S.C. § 1623(a).

On appeal, Dudley contests the denial of his motion to suppress in

the possession matter and further argues that the district court

erred by permitting the government to play two video excerpts of

child pornography for the jury. Dudley also contests the denial

of his motion for judgment of acquittal in the perjury matter.

For the reasons that follow, we affirm Dudley's convictions.

OVERVIEW1

Around noon on August 20, 2012, state and federal

officers executed a search warrant, obtained in the course of a

child pornography investigation, at Dudley's Westbrook, Maine

residence. Officers had traced to Dudley's apartment an internet

protocol (IP) address that had shared child pornography using a

peer-to-peer file sharing software called Ares. While the search

of Dudley's apartment was underway, two Homeland Security

Investigations (HSI) Special Agents, David Fife (Fife), the lead

investigator and case agent in the matter, and Martin Conley

(Conley), interviewed Dudley in Agent Fife's SUV for about forty

1 We summarize the underlying facts and history of the case,
saving additional details for our analysis of the alleged errors.

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minutes. During this interview, Dudley admitted that he was

familiar with the Ares network and made other incriminating

statements concerning the downloading of child pornography.

Ultimately, two CDs containing child pornography were found on a

desk in Dudley's office. Dudley was subsequently arrested and

indicted on one count of possession of child pornography.

Prior to trial on the possession matter, Dudley filed a

motion to suppress statements made to Agents Fife and Conley, and

testified at the suppression hearing. The district court denied

the motion.2 Later, based on statements he made while testifying

at the suppression hearing, the government charged Dudley by

indictment with one count of false declaration before the court.

After a two-day jury trial on the possession matter,

Dudley was found guilty of possessing child pornography. A few

months later, another jury found Dudley guilty, this time of

providing materially false testimony during the suppression

hearing.

2 The suppression hearing was held before a magistrate judge.
Following Dudley's objection to the magistrate judge's recommended
decision and a response by the government, the district judge
adopted the magistrate judge's proposed findings and decision, and
denied the motion to suppress. For simplicity's sake, we will
refer to the findings and conclusions of the magistrate judge as
those of the district court.

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 Dudley now appeals his convictions.3 On appeal, Dudley

raises three issues.4 With regard to the possession charge, Dudley

argues that the district court (1) committed reversible error when

it denied his motion to suppress, and (2) erred in allowing the

government to play two thirty-second video excerpts of child

pornography to the jury during its closing. As for the perjury

charge, Dudley contends that the district court erred when it

denied Dudley's motion to acquit.

THE POSSESSION MATTER

I. Dudley's Motion to Suppress

Dudley sought to suppress all evidence obtained as a

result of his allegedly illegal interrogation by Agents Fife and

Conley, arguing that the agents continued to question him after he

had invoked his right to counsel. The thrust of Dudley's testimony

was that he had requested an attorney on three separate occasions.5

3 Dudley's appeals have been consolidated pursuant to Federal
Rule of Appellate Procedure 3(b)(2).

4 Dudley was sentenced to 96 months of imprisonment on the
possession conviction and 60 months of imprisonment on the perjury
conviction, to be served concurrently. He does not challenge his
sentence on appeal.

5 Six other witnesses testified at the suppression hearing.
Dudley offered three witnesses who had been present on the day of
the search: his wife, Lori Dudley; his mother, Cheryl Dearborn;
and a close family friend and roommate of the Dudleys, Charal
Boothby. In addition, three law-enforcement officers -- Agents
Fife and Conley, and their supervisor, Resident Agent in Charge
(RAC) Gary Cote -- testified for the government.

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First, Dudley testified that, as he was led out of his apartment,

he told his wife "to call Gordon to get ahold of Joseph about the

-- about getting a lawyer." Second, Dudley claimed that when Agent

Fife asked if he was willing to talk to him, Dudley said that he

"would be willing to listen to an explanation" but that he wanted

a lawyer. According to Dudley, Agent Fife responded by telling

him that he could have a lawyer if he wanted one, but he was not

a suspect and it would look better if he agreed to speak with them.

And finally, Dudley asserted that after being read his Miranda

rights, see Miranda v. Arizona, 384 U.S. 436 (1966), he reiterated

to Agents Fife and Conley his desire to have an attorney present

for any questioning.

As may be expected, the government disputed Dudley's

version of events, countering that Dudley was not in custody when

he spoke to the Agents and that, even if Dudley had been in custody

when he was interviewed, he knowingly and voluntarily waived his

rights. Specifically, the government argued that Dudley's "claim

that he invoked his right to counsel after being read his Miranda

rights [was] simply false" and that Dudley "voluntarily elected to

speak with investigators."

A. Findings and Conclusions of the District Court

On the whole, the district court did not find Dudley's

testimony credible, and largely crediting the agents' version of

events, the district court found the following relevant facts,

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which are reasonably supported by the record. See United States

v. Hughes, 640 F.3d 428, 434 (1st Cir. 2011).

On the afternoon of August 20, 2012, twelve law-

enforcement officers, including six uniformed police officers,

detectives and task force officers, and six HSI agents in plain

clothes, arrived at Dudley's apartment to execute the search

warrant. Prior to arriving at the apartment building, the

officers6 had been informed by the Westbrook Police Department that

Dudley lived in the apartment with his wife, Lori Dudley (Lori),

their three children, and a roommate, Charal Boothby (Boothby).

Officers had also been cautioned that there were frequent

transients in and out of the apartment and that Dudley was

potentially in possession of a firearm.

While Agent Gary Cote (Cote) and another officer kept

watch outside the multi-unit apartment building, the other

officers entered the building and proceeded to Dudley's second-

floor apartment with their guns drawn and in the "low ready"

position. When an officer knocked on the door and announced the

presence of law enforcement, Lori answered but, when asked by the

officer about Dudley's whereabouts, claimed that Dudley was not

home. With unfortunate timing perhaps, Dudley then stepped into

view of the officers behind Lori. Officer Fred Williams (Williams)

6
For clarity, we will refer to the officers and agents
collectively as "officers."

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of the Saco, Maine police department immediately removed Dudley

from the apartment, brought him to a landing midway down the

stairwell, and frisked him. Officer Williams then proceeded to

remove Dudley's cell phone, handcuff him, and lead him down the

stairs and outside to the front of the building.

As Dudley was being removed from the building, the

remaining officers conducted a protective sweep of the apartment.

In addition to Dudley and Lori, the officers came across five

people in the apartment: the Dudleys' three children; the Dudleys'

roommate, Boothby; and Boothby's younger brother, Robert Duquette.

When officers completed the protective sweep, the search

began. At that point, Agent Fife left the apartment to find Dudley

and located him downstairs with Agent Cote and a Westbrook police

officer. When Agent Fife arrived, Dudley asked to smoke a

cigarette, and Agent Fife removed Dudley's handcuffs so that he

could do so. Agent Fife then explained that the officers were

there because they had information that someone using an IP address

at Dudley's apartment was sharing child pornography through the

Ares peer-to-peer file sharing program.7 Agent Fife further told

Dudley that he was not under arrest but that he could not return

to the apartment until the search was complete. Dudley asked to

see the search warrant, which Fife provided.

7 Internet service providers assign individual computers
specific IP addresses to access the internet.

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 Around this time, Agent Fife asked Dudley if he would be

willing to speak with him, and Dudley said that he would. For

privacy reasons, Agent Fife suggested that they talk inside his

SUV, which he had parked in a driveway adjacent to Dudley's

apartment. Dudley again agreed. Agent Fife sat in the driver's

seat, while Dudley took the passenger seat, and Agent Conley, who

by this point had joined Agent Fife, sat in the backseat behind

Dudley. The doors to the SUV remained unlocked, and Dudley was

reminded that he was free to leave. Agent Fife then apprised

Dudley of his Miranda rights, reading from a standardized form.

Dudley agreed to speak to the agents, remarking that he knew his

rights and that he had been read the Miranda warnings on a previous

occasion. Agent Fife did not have Dudley sign the standardized

form because he did not believe that Dudley was in custody.

The interview, which was not recorded, lasted about

forty minutes. According to Agent Fife, the conversation was very

"cordial," and at no point did Dudley request that the interview

stop. Near the end of the interview, Agent Cote signaled to Agent

Fife that he needed to speak with him. There was a brief pause in

the conversation as the agents spoke outside the vehicle, but

Dudley remained in the car and the interview resumed shortly

thereafter.

At the conclusion of the interview, Agent Fife told

Dudley that he still could not return to the apartment because the

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search was ongoing, but Dudley was allowed to sit alone and

unhandcuffed on the front stoop near Agent Cote and other officers.

When officers found a CD containing child pornography in

Dudley's office, Agent Fife approached Dudley on the stoop to ask

if the items on his desk belonged to him. Dudley responded

affirmatively to Agent Fife's questions.8

Three hours after it began the search concluded,

resulting in Dudley being handcuffed and placed under arrest. As

Dudley was transported to the county jail, he became agitated,

repeatedly asked the officers what probable cause they had for the

arrest, and threatened to sue.

In its decision, the district court assumed Dudley was

in custody,9 and also assumed that as he was escorted from the

apartment he asked his wife to contact his attorney. Nevertheless,

the district court concluded that there was no evidence that any

law enforcement officer actually heard Dudley's statement to his

wife and, therefore, the statement "was not in itself an

unambiguous invocation of his right to counsel." The district

court also determined that Dudley's assertion that he had twice

invoked his right to counsel during his interview with Agents Fife

8
Although Dudley's response is not part of the district
court's factual findings, Agent Fife testified that Dudley
responded that the items in his office belonged to his business.

9
The parties do not contest the district court's assumption
that Dudley was in custody.

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and Conley was not credible. Instead, the district court credited

the agents' testimony that Dudley never requested an attorney and

never asked to stop the interview.

In particular, the district court noted that Dudley

"admitted on cross-examination that (i) he knew his Miranda rights

prior to his encounter that day with officers, (ii) he knew enough

to ask to see the search warrant, (iii) upon his arrest later that

day, he accused the officers of arresting him without probable

cause and threatened to sue them, and (iv) he was 'quite

protective' of his rights." Therefore, the district court found

that Dudley "likely would have invoked his right to counsel, and

ceased answering officers' questions, if he did not wish the

interview to continue."

Dudley now challenges this ruling, arguing, as he did

below, that he unambiguously invoked his right to counsel as he

was led from the apartment and again both before and during his

interview with Agents Fife and Conley. Consequently, Dudley argues

the district court erred in denying his suppression motion. We

see no error.

B. Standard of Review

When reviewing a denial of a motion to suppress, "[w]e

view the facts in the light most favorable to the district court's

ruling." United States v. Camacho, 661 F.3d 718, 723 (1st Cir.

2011) (alteration in original) (quoting United States v. Soares,

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521 F.3d 117, 118 (1st Cir. 2008)). And "we review the district

court's findings of fact and credibility determinations for clear

error." Id. Under clear error review, we will reverse "only if,

after considering all the evidence, we are left with a definite

and firm conviction that a mistake has been made." Id. (quoting

United States v. McCarthy, 77 F.3d 522, 529 (1st Cir. 1996)). On

the other hand, we review the district court's legal

determinations, including its application of the law to the facts,

de novo. Id. at 724.

C. Discussion

Once a suspect has invoked the right to counsel during

a custodial interrogation, all questioning must stop until counsel

can be provided. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).

But this request for counsel must be clear and unambiguous. Davis

v. United States, 512 U.S. 452, 459 (1994) (statement, "Maybe I

should talk to a lawyer," was not an unambiguous request for

counsel, id. at 462). "[I]f a suspect makes a reference to an

attorney that is ambiguous or equivocal in that a reasonable

officer in light of the circumstances would have understood only

that the suspect might be invoking the right to counsel," officers

need not stop questioning. Id.

1. Dudley's Request to "call Gordon"

Here, Dudley first argues that his statement to his wife

as he was taken from the apartment (something along the lines of

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"call Gordon to get ahold of Joseph about the -- about getting a

lawyer" or "call Higgins") was a clear and unambiguous invocation

of his right to counsel. We do not agree.

Dudley testified that on the day of the search he was

coming out of the bathroom when he heard "a commotion." According

to Dudley, when he walked into the living room, a police officer

immediately grabbed his shoulder and led him from the apartment.

As he was being taken outside, and while "everybody was rushing

into the house," he "made mention" to his wife, who was standing

at the door, that she should "call Gordon to get ahold of Joseph

about the -- about getting a lawyer." Lori similarly testified

that shortly after the police entered her home, Dudley told her

"to call Higgins, his lawyer." Dudley contends that if Lori "heard

his request, there can be no doubt that the officers seizing []

Dudley also heard the request." But neither Dudley nor Lori

claimed that Dudley yelled or shouted his request -- testifying

instead that Dudley "said" or "mentioned" to Lori that she should

call his attorney.

Lori further said that when, in response to her husband's

request, she reached for the telephone to call Dudley's attorney,

an officer told her that she could not use the telephone.10 The

10 She acknowledged on cross examination, however, that she
was never handcuffed or told that she could not leave the
apartment, and that if she had wanted to call someone she could
have left the apartment and used someone else's phone.

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implication being, Dudley argues, that the officer must have heard

Dudley's request and was prohibiting her from carrying it out.

Agent Fife, who was a member of the entry team, testified

that he did not hear Dudley say anything as he first made contact

with him upon entering the apartment.11 And Agent Conley, who was

also a member of the entry team and who was present on the landing

when Dudley was removed from the apartment, testified that he never

heard Dudley say anything about an attorney.

In considering all the evidence presented and making

credibility determinations, the district court concluded that

there was no evidence the officers had heard Dudley's request to

his wife. And the evidence shows that -- crediting that Dudley

made this statement -- it nonetheless would have been made in the

chaos of the initial protective sweep, as ten officers, with their

guns in the low and ready position, moved quickly through the front

door trying to secure the apartment.

Taken as a whole, we find that the evidence supports the

district court's findings, and, as such, we find no clear error.

See Camacho, 661 F.3d at 723 ("[W]e 'will uphold a denial of a

motion to suppress if any reasonable view of the evidence supports

it.'" (quoting United States v. Mendez-de Jesus, 85 F.3d 1, 2 (1st

Cir. 1996))). "[W]hen 'the district court chooses to draw a

11Agent Fife acknowledged that he may have been branching off
into another area by the time Dudley passed his wife at the door.

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reasonable (though not inevitable) inference from a particular

combination of facts,' that inference is entitled to respect."

Hughes, 640 F.3d at 434 (quoting United States v. Espinoza, 490

F.3d 41, 46 (1st Cir. 2007)). This is especially true where, as

here, "evaluations of witnesses' credibility are concerned" since

we must be especially deferential to the district court's

credibility findings. United States v. Nee, 261 F.3d 79, 84 (1st

Cir. 2001) (quoting United States v. Jones, 187 F.3d 210, 214 (1st

Cir. 1999)).

Finding no clear error in the district court's findings,

our inquiry is a simple one. If no officer heard Dudley's

statement to his wife, it could not have been a clear invocation

of his right to counsel. "[T]his is an objective inquiry," Davis,

512 U.S. at 459, and officers could not have objectively understood

a statement they did not hear to be an assertion of the right to

counsel.

But even assuming the entry team officers heard Dudley's

request to his wife as they moved through the apartment, such a

request simply "does not unequivocally demand assistance, request

the lawyer's presence, or otherwise clearly indicate an

unwillingness to make a statement absent presence of an attorney."

United States v. Oquendo-Rivas, 750 F.3d 12, 19 (1st Cir. 2014).

Under the Davis standard, Dudley had to "articulate his desire to

have counsel present sufficiently clearly that a reasonable police

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officer in the circumstances would understand the statement to be

a request for an attorney." Davis, 512 U.S. at 459. Telling his

wife "to call Gordon to get ahold of Joseph about the -- about

getting a lawyer," is not sufficiently clear to adequately inform

officers whether or not Dudley wanted an attorney present for

subsequent questioning.12 See Grant-Chase v. Comm'r, N.H. Dep't

of Corr., 145 F.3d 431, 436 (1st Cir. 1998) (finding reasonable a

state court's determination that a pre-Miranda request to call a

lawyer was "ambiguous as to purpose" because it was unclear whether

the suspect sought "the assistance of an attorney in dealing with

the forthcoming interrogation" and concluding that in the face of

such ambiguity officers were "within their rights" "to continue

the interrogation without asking for clarification"); United

States v. Fontana, 948 F.2d 796, 806 (1st Cir. 1991) (suspect's

instruction to his wife to call an attorney -- made while in the

presence of an officer -- was not a reassertion of the right to

counsel); cf. Obershaw v. Lanman, 453 F.3d 56, 65 (1st Cir. 2006)

(suspect inquiring "whether he could talk to a lawyer, rather than

expressly asserting that he in fact wanted to do so" was not an

unambiguous request for counsel). Accordingly, we conclude that

Dudley's request to his wife that she "call Gordon" was not an

unambiguous invocation of his right to counsel.

12
We note that Dudley made no incriminating statements until
after he received the Miranda warnings.

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 2. Dudley's Other Alleged Requests for Counsel

As for Dudley's alleged requests for counsel before and

during his interrogation in Agent Fife's SUV, Dudley argues that

the district court committed clear error in finding that Dudley

never invoked this right. At the suppression hearing, both Agents

Fife and Conley testified that Dudley never mentioned an attorney.

Agent Fife further testified that Dudley never asked to stop the

interview. And while Dudley did testify that he requested a

lawyer, he also testified that he understood his rights and was

"quite protective" of them (indeed he testified that he knew to

ask to see the search warrant and to use the phrase "probable

cause" when challenging his arrest), but that he nevertheless

continued answering the officer's questions after allegedly

invoking his right to counsel on three separate occasions.

The district court did not find this testimony

credible,13 "deem[ing] it unlikely that the defendant would have

13Highlighting minor inconsistencies in the agents' testimony
(e.g., differences among the agents as to when, or if, Dudley's
interview was interrupted by Agent Cote), Dudley argues that it
was clear error for the district court to find Dudley's testimony
unreliable because his testimony, as opposed to the agents, "was
comprehensive and unwavering." Dudley also argues that because
the agents admittedly did not consider Dudley to be in custody,
"his asking for an attorney was not perceived as invoking his right
to counsel under Miranda and therefore [was] more forgettable to
the agents." These arguments go nowhere as the district court
explicitly noted a number of these same inconsistencies when making
its credibility determinations. For example, the district court
noted the discrepancies surrounding Agent Cote's disruption of the
interview, but unambiguously credited Agent Fife's testimony while

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proceeded to answer the officers' questions had he invoked his

right to an attorney." Rather, the district court found it likely

that Dudley chose to continue answering questions "because he

perceived an advantage, or at least no harm, in doing so." This

credibility determination was reasonable and was well within the

trial court's purview. As such, we will not second-guess the

district court's findings. See United States v. McGregor, 650

F.3d 813, 820 (1st Cir. 2011) ("Clear-error review is highly

deferential, requiring us to let the judge's fact-sensitive

conclusions and credibility calls stand unless we are left with a

definite and firm conviction that the judge made a mistake.").

The district court's conclusion that Dudley never

unambiguously invoked his right to counsel was not clearly

erroneous. Accordingly, the motion to suppress was properly

denied. See Davis, 512 U.S. at 462 ("Unless the suspect actually

requests an attorney, questioning may continue.").

II. Dudley's Evidentiary Challenge

Dudley next argues that the district court committed

reversible error by permitting the government to play two thirty-

second video excerpts depicting child pornography for the jury in

violation of Federal Rule of Evidence 403.

noting that nothing turned on the distinction. The evidence
adequately supports the district court's findings.

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 A. Standard of Review

We review the district court's Rule 403 determination

for abuse of discretion. United States v. Mangual-Corchado, 139

F.3d 34, 43 n.22 (1st Cir. 1998). Under the rule, "court[s] may

exclude relevant evidence if its probative value is substantially

outweighed by a danger of . . . unfair prejudice . . . or needlessly

presenting cumulative evidence." Fed. R. Evid. 403. But "this

rule protects defendants only against evidence that would produce

unfair prejudice, as '[b]y design, all evidence is meant to be

prejudicial.'" United States v. Breton, 740 F.3d 1, 14 (1st Cir.

2014) (emphasis and brackets in original) (quoting United States

v. Varoudakis, 233 F.3d 113, 122 (1st Cir. 2000)). And "[w]e give

great deference to a district judge's balancing of probative value

versus unfair prejudice." Id.

B. The Video Excerpts

Prior to trial on the possession matter, Dudley filed a

motion in limine offering to stipulate that the CDs found in his

home contained child pornography as defined by federal law, and

thus, sought to preclude the government from showing the jury any

images of child pornography. Alternatively, Dudley sought to limit

publication to one image and/or to limit the image, or images, to

those that were "less inflammatory," such as "those depicting

children in sexually suggestive poses" rather than, for example,

an image of "adults sexually abusing children." Dudley also sought

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to limit the images to show only the bodies of the children because

"[t]he expressions on the faces of the children who are being

abused are heartbreaking and [would] most certainly inflame the

passions of the jury."

For its part, the government sought to introduce three

videos (out of approximately one hundred) from the DVDs found in

Dudley's office14 and to play a thirty-second clip from each for

the jury. The first two videos were approximately twelve and

fifteen minutes long, respectively, and depicted sexual activity

between adults and children.15 The forensic evidence showed that

both of these videos had been opened using the password-protected

laptop computer seized from Dudley's bedroom. The third video,

which the government ultimately chose not to play for the jury,

was over two minutes long and also showed explicit images of

children. That video had been shared from Dudley's IP address and

downloaded by Agent Conley during the course of his investigation.

In opposing Dudley's motion, the government argued that: (1) it

was not obligated to accept Dudley's stipulation and was "entitled

14 Evidence showed that a similar Phillips DVD was found in
Dudley's office containing church-related materials. During his
interrogation with Agents Fife and Conley Dudley had claimed to be
a pastor and said that he held weekly services in his apartment.

15These video files were titled: "pthc -- open -- euro family
young sex education very young girl a.mpg" and "(pthc) compilation
(sex bj cum).wmv". The third video was titled: "(pthc) 8yr mom
rubbs daughter.mpg".

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to prove its case by evidence of its own choice"; (2) the nature

of the videos was relevant to issues of knowledge and lack of

mistake that the videos were child pornography; and (3)

introduction of those particular videos (along with the forensic

evidence) would "demonstrate the unlikelihood that the videos were

present in [Dudley's] apartment without his knowledge."

After viewing the challenged videos (and proposed

excerpts) and conducting its Rule 403 balancing, the district court

concluded that Dudley's "requested limitations would limit the

probative value of the proffered evidence while doing little to

nothing to limit the prejudicial impact," which the district court

noted was "not unfair prejudice in any event." In the district

court's assessment, the government was entitled to present a

limited number of images to meet its burden to prove -- not just

possession -- but knowledge and lack of mistake. The district

court further determined it could not force the government to

accept Dudley's offer to stipulate "[b]ecause the images [were]

part of the Government's narrative and probative on multiple

elements of the offense."

In the end, two (of three) videos were admitted during

the government's case-in-chief, and two thirty-second excerpts

were played for the jury during the government's closing argument.

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 C. Discussion

On appeal, Dudley argues that the district court

committed reversible error when it permitted the government to

play these thirty-second excerpts of child pornography to the jury

because the -- admittedly "disturbing" -- videos created a risk of

unfair prejudice that far outweighed the probative value. Finding

no abuse of discretion, we affirm.

Acknowledging that "the prosecution is entitled to prove

its case by evidence of its own choice and is not required to

accept a defendant's offer to stipulate," see Old Chief v. United

States, 519 U.S. 172, 183 (1997) ("[A] defendant's Rule 403

objection offering to concede a point generally cannot prevail

over the Government's choice to offer evidence showing guilt and

all the circumstances surrounding the offense."), Dudley

nevertheless argues that his willingness to stipulate that the

images on the disks were child pornography lessened the probative

value of the videos to such an extent that it was reversible error

for the district court to allow them to be played -- no matter how

brief the excerpt.16 Although Dudley was willing to stipulate to

16Dudley relies on United States v. Merino-Balderrama, 146
F.3d 758 (9th Cir. 1998) and United States v. Cunningham, 694 F.3d
372 (3d Cir. 2012) to argue that it was reversible error to play
the video excerpts to the jury given Dudley's willingness to
stipulate. But those cases are easily distinguishable. In Merino-
Balderrama, the government offered no direct or circumstantial
evidence that the defendant ever saw the films -- only the box
covers. 146 F.3d at 762-63. As such, the court concluded that

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the content of the DVDs, however, he consistently denied knowledge,

maintaining that he did not know what was on the disks and that he

had never accessed the files. Consequently, his proposed

stipulation only went so far. See United States v. Eads, 729 F.3d

769, 778 (7th Cir. 2013) ("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.").

Framing these issues for the jury at opening, defense

counsel queried "[w]ho was in possession, who was in knowing

possession," and noted: "the Government references knowing

possession of the diskettes and that's all this case is about."

Defense counsel explained to the jury that the evidence would show

Dudley ran a computer salvage operation and that he had "lots of

computers . . . lots of hard drives . . . and all kinds of different

ways in which one could come into possession of computer material

. . . ." Given Dudley's salvage business, defense counsel

emphasized Dudley's "disavow[al] that all of this stuff is his,"

the films were less probative of scienter than were their covers.
Id. at 762. The court's decision in Cunningham largely turned on
the fact that the district judge had not personally examined the
videos before deciding to admit them under Rule 403. 694 F.3d at
388 (explaining that "because the District Court abused its
discretion when it decided not to watch the videos before admitting
them under Rule 403, its underlying Rule 403 determination is not
entitled to the full range of deference that we would normally
give to it on appeal").

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concluding "if you don't do something intelligently, if you don't

do something voluntarily, you do something because of either

mistake or accident or error, you're not knowingly in possession

of that item."

Despite Dudley's proposed stipulation, then, it seems

clear that the government would have retained the burden to prove

that Dudley had knowingly possessed child pornography and,

therefore, "showing the images served a valid, non-cumulative,

purpose." Eads, 729 F.3d at 778. The videos provided evidence

that anyone who played those files for just thirty seconds -- files

that had been opened and played on Dudley's password-protected

laptop -- would have known that the videos contained child

pornography, thus making it more probable that Dudley knowingly

possessed child pornography.

The government offered the clips, along with forensic

evidence that the graphically-titled files were downloaded and

played on Dudley's computer and that the same password-assigned

user had searched the Ares program for keywords typical of child

pornography (e.g., "teen sex," "family sex," "inzest," "kids

having sex," "voyeir young girls," and "daughter sex"), to prove

Dudley's knowledge and lack of mistake or accident. Indeed, before

playing the excerpts,17 the prosecutor explained that he was going

17
Dudley further claims that the risk of unfair prejudice was
"maximized" because the clips were played during the closing

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to show "the very first 30 seconds" of the two videos so that the

jury could consider if there was any question in their minds

whether someone who accessed the DVD, opened the file, and saw

just the very first seconds "would know that these videos

constituted child pornography and that the possessor of those DVDs

was knowingly possessing child pornography." And the government

specifically cautioned that although the jury "had to see a very

short excerpt from these videos" to "appreciate what it was," they

should not make "a decision based on raw emotion or because [they]

view these videos as being evil."

While "[t]he trial judge's job is to avoid unfair

prejudice," the district court "is not required to scrub the trial

clean of all evidence that may have an emotional impact." United

States v. Morales-Aldahondo, 524 F.3d 115, 120 (1st Cir. 2008).

argument, immediately before the jury was asked to deliberate.
The government counters that this argument was waived because,
although Dudley objected to the publishing of the videos, he did
not specifically object to the videos being played during the
prosecution's closing. Indeed, when the prosecutor explained that
he planned to show the videos during his closing, defense counsel
stated that this procedure was "[f]ine." In any event, this
argument need not detain us long, since even assuming, favorably
to Dudley, that the argument was not waived, the distinction is
not determinative. Watching these videos was no doubt incredibly
difficult whether they were viewed at the end of the first trial
day (with a full night to dwell on them) or during the closing and
"from the vista of a cold appellate record" we cannot say that the
difference necessarily tips the scales in Dudley's favor. United
States v. Dowdell, 595 F.3d 50, 74 (1st Cir. 2010) (noting that
"[t]he trial court has wide latitude in determining when the amount
of unfair prejudice has tipped the scale too far").

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Here, the judge viewed the videos, and the proposed excerpts, and

"properly balanced the competing concerns of Rule 403" in denying

Dudley's objection to showing the video excerpts to the jury. Id.

The video excerpts (in combination with the forensic evidence)

were probative of whether Dudley knowingly possessed child

pornography and rebutted Dudley's defense that he mistakenly

acquired the DVDs. We see no reversible error.

THE PERJURY MATTER

As the reader may recall, after testifying at the

suppression hearing in the possession matter, Dudley was charged

by indictment with one count of false declaration before the court,

stemming from statements he made under oath that he had invoked

his right to an attorney. Here, Dudley challenges the district

court's denial of his motion for judgment of acquittal in the

perjury matter, arguing that the government "did not prove beyond

a reasonable doubt that his statements were false, nor did it prove

that [he] knew they were false at the time he made them." After

review, we affirm.

I. Sufficiency of the Evidence

A. Perjury Trial

A jury trial was held in the perjury matter.18 Special

Agents Fife and Conley testified, as did Dudley's wife, Lori. In

18
Since Dudley attacks the sufficiency of the evidence in the
perjury matter, we recite the relevant facts in the light most

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brief, Agents Fife and Conley testified to the events surrounding

the search of Dudley's residence and the subsequent interrogation

of Dudley in Agent Fife's SUV. The agents testified that at no

time -- upon entry to the apartment, before the interrogation or

during -- did Dudley ask to speak with a lawyer. Agent Fife also

explained that he, Agent Conley, and Dudley had all testified at

the April 5, 2012 suppression hearing. Portions of the suppression

hearing transcript were then admitted into evidence.

At the close of the government's case-in-chief, the

district court denied Dudley's motion for judgment of acquittal,

rejecting Dudley's two arguments: (1) that the indictment

(specifically paragraph four)19 required the government to prove

favorable to the verdict. See United States v. Alverio-Meléndez,
640 F.3d 412, 416 n.1 (1st Cir. 2011).

19 The indictment provides, in relevant part:

3. At the time and place alleged, JOEL DUDLEY, while
under oath, knowingly declared before the Court . . . as
follows . . .

Q: No, sir, I'm asking on August 20th how many
times are you telling this Court that you told them
you wanted a lawyer?
A: Three.
Q: Three separate occasions.
A: Yes.
Q: Prior to being interviewed and during the
interview.
A: Yes.
Q: You told them you wanted a lawyer.
A: Yes, I did.

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that Dudley did not invoke his right to counsel at any point --

not just during the interrogation with Agents Fife and Conley --

and the government's failure to call the other officers on the

entry team rendered the evidence insufficient; and (2) that

evidence of materiality was insufficient because if, as Agents

Fife and Conley testified, Dudley was not in custody, whether he

invoked his right to counsel was immaterial. Denying the motion,

the district court concluded that the indictment "refers to Conley

and Fife throughout" and that "even if [Dudley] had asked for

lawyers at other times, if he testified falsely deliberately as

regards to what he told Fife and [Conley], the Government is safe

as far as the motion is concerned." Regarding the materiality

issue, the district court found that the statement was material

because "it was intended to be material as of the time the

statement was made."

After Dudley's sufficiency motion was denied, Lori

testified for the defense. Lori stated that as the officers

entered the apartment, Dudley told her to "call Higgins, his

Q: And your testimony under oath today is that
they basically ignored that and continued to
question you; is that correct?
A: Yes, that is correct.

4. The italicized testimony of JOEL DUDLEY, as he
then and there well knew and believed, was false in that
DUDLEY did not invoke his right to counsel or otherwise
tell investigators he wanted a lawyer at any time prior
to or during the August 20, 2012 interview.

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lawyer." Lori testified that she was in the living room and that

Dudley was in the hallway when this request was made, but despite

that distance she confirmed that Dudley did not "yell" this

request. After Lori testified, the defense rested. Dudley did

not renew the motion for judgment of acquittal at the end of his

case. The case was then submitted to the jury, and Dudley was

found guilty. Dudley did not renew his motion for acquittal after

the guilty verdict.

B. Discussion

As a threshold matter, we note that Dudley's failure to

renew his motion for judgment of acquittal at the close of the

entire case (after offering evidence in his defense) and following

the guilty verdict, constitutes a waiver of his motion. See United

States v. Maldonado-García, 446 F.3d 227, 230 (1st Cir. 2006)

(noting that failure to renew a motion for acquittal at the close

of all evidence or following a jury verdict constitutes a waiver

of an earlier motion). Therefore, we review for "clear and gross

injustice" only.20 Id. Finding none, we affirm.

20
The government also argues that Dudley waived specific
sufficiency arguments raised on appeal by failing to raise them
below. See United States v. Foley, 783 F.3d 7, 12 (1st Cir. 2015)
("Under our precedent, although a general sufficiency-of-the-
evidence objection preserves all possible sufficiency arguments,
a motion raising only specific sufficiency arguments waives
unenumerated arguments."). But given our broader conclusion as to
waiver, we need not determine whether (or not) Dudley's sufficiency
arguments below preserved his appellate arguments. See id. (noting

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 To evaluate Dudley's challenge, "we consider whether a

rational jury could have concluded that the government proved each

element of the charged offenses beyond a reasonable doubt." United

States v. Morales-Machuca, 546 F.3d 13, 20 (1st Cir. 2008). "In

so doing, we view the evidence in the light most favorable to the

jury's guilty verdict and 'resolve all questions of credibility

and reasonable inferences in favor of the verdict.'" Id. (quoting

United States v. Lizardo, 445 F.3d 73, 81 (1st Cir. 2006)).

"A statement under oath constitutes perjury if it is [1]

false, [2] known to be so and [3] material to the proceeding."

United States v. Pagán-Santini, 451 F.3d 258, 266 (1st Cir. 2006)

(citing 18 U.S.C. § 1623). On appeal, Dudley asserts there was

insufficient evidence as to the first two elements -- falsity and

knowing falsity. Viewing the record in the light most favorable

to the verdict, however, we think that a rational jury could have

found Agents Fife's and Conley's testimony, that Dudley at no time

requested an attorney, more credible than Dudley's contradictory

suppression hearing testimony.

In addition to testifying that Dudley never requested an

attorney, Agent Fife testified that Dudley: (1) asked to see the

search warrant; (2) was read his Miranda warnings; and (3) affirmed

that he "understood his rights." Still, Agent Fife further

"that a general sufficiency objection accompanied by specific
objections [may] preserve[] all possible sufficiency objections").

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testified that Dudley continued to talk to the officers for

approximately forty minutes (despite Dudley's testimony that he

had repeatedly invoked his right to counsel). Agent Conley's

testimony largely mirrored Agent Fife's testimony, and Agent

Conley emphasized that he was "100 percent certain" that Dudley

did not ask for a lawyer at any point during Agent Conley's

interactions with him. From this, the jury reasonably could have

concluded -- much like the district court in the possession matter

-- that it was unlikely Dudley would have continued answering the

officers' questions for forty minutes if he had in fact invoked

his right to counsel. In other words, the jury reasonably could

have concluded that Dudley's unequivocal suppression-hearing

testimony -- that "prior to being interviewed and during the

interview" he invoked his right to counsel but that these

invocations were simply ignored by Agents Fife and Conley -- was

knowingly false.

Finally, Dudley argues that the evidence was

insufficient to prove that Dudley never requested counsel prior to

his interview with Agents Fife and Conley (i.e., his request to

his wife), and, therefore, the government has not meet its burden

to prove that Dudley knowingly made a false statement to the court.

But the indictment clearly referred to Dudley's testimony that he

had invoked his right to counsel during his interrogation by Agents

Fife and Conley. Specifically, the indictment concerned "whether

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[Dudley] had invoked his right to counsel during an interview with

law enforcement."

In sum, the jury had sufficient bases to convict Dudley

of false declaration before the court, in violation of 18 U.S.C.

§ 1623(a), and finding no "clear and gross injustice," we affirm.

CONCLUSION

For the reasons articulated above, we affirm Dudley's

convictions.

Affirmed.

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