PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 22-3033
___________
UNITED STATES OF AMERICA,
Appellant
v.
RODERICK T. LONG
____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2-21-cr-00087-001)
District Judge: Honorable J. Nicholas Ranjan
____________
Argued on November 28, 2023
Before: HARDIMAN, FREEMAN, and MONTGOMERY-
REEVES, Circuit Judges.
(Filed: February 8, 2024)
Troy Rivetti
Donovan J. Cocas [Argued]
Laura S. Irwin
Matthew S. McHale
Office of United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
Counsel for Appellant
Kelvin L. Morris [Argued]
Law Office of Kelvin L. Morris
310 Grant Street
Suite 707
Pittsburgh, PA 15219
Counsel for Appellee
____________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
In United States v. Cunningham, 694 F.3d 372 (3d Cir.
2012), we held that the district court abused its discretion when
it admitted evidence in a criminal case over defense counsel’s
objection without examining it. This appeal presents the
inverse question: did the District Court abuse its discretion by
excluding evidence offered by the Government without
2
examining it? We hold that it did, so we will vacate and
remand.
I
A
In 2006, Roderick Long pleaded guilty to receiving
material depicting the sexual exploitation of a minor, in
violation of 18 U.S.C. § 2252(a)(2). He was sentenced to 121
months’ imprisonment followed by a lifetime of supervised
release with conditions limiting his access to computers and
certain sexually explicit materials. United States v. Long, 304
F. App’x 982, 983–84 (3d Cir. 2008).
In 2020, seven years after Long’s release from prison,
Pennsylvania state law enforcement received a tip from
Microsoft through the National Center for Missing and
Exploited Children that someone had uploaded child
pornography1 using Skype.2 Law enforcement determined that
the upload came from Long’s residence in Clinton,
Pennsylvania. After obtaining and executing a search warrant,
1
As the Government points out, “child sexual abuse material”
or CSAM is a more accurate label than “child pornography”
because the material inherently documents child exploitation
and sexual abuse. Gov’t Br. 3 n.2. Though “child pornography”
is a misnomer, we use that terminology because it is used in
federal statutes. See, e.g., 18 U.S.C. § 2252A.
2
Throughout this opinion, we refer to the allegations giving
rise to the indictment and the evidence the Government may
present at trial—not proven facts.
3
law enforcement found more than 500 videos and more than
60 photos of child pornography on Long’s electronic devices
and cloud storage account. The child pornography included
videos and images of infants and toddlers.
Long was indicted for knowingly possessing child
pornography involving victims under 12 years old, in violation
of 18 U.S.C. §§ 2252(a)(4)(B) and 2252(b)(2). This crime
contains four elements: (1) Long knowingly possessed visual
depictions of minors engaging in sexually explicit conduct; (2)
the visual depictions were mailed, transported, or shipped in
interstate commerce or were produced using materials which
had been mailed, transported, or shipped in interstate
commerce; (3) production of the visual depictions involved
minors engaging in sexually explicit conduct, which includes
lascivious exhibition of the genitals; and (4) the visual
depictions involved at least one minor who was prepubescent
or under 12 years old. 18 U.S.C. § 2252(a)(4)(B), (b)(2); id. §
2256.
B
As Long’s trial approached, the Government provided
notice that it sought to introduce one video montage (proposed
Exhibit 30) and four photos (proposed Exhibits 31–34) at trial
as samples of the content allegedly found on Long’s electronic
devices. The video is 1 minute and 25 seconds long and is “a
montage of four clips of longer videos,” totaling 32 minutes
and 24 seconds. United States v. Long, 2022 WL 15523192, at
*1 (W.D. Pa. Oct. 26, 2022). The four photos depict naked girls
displaying their genitals in suggestive ways, but the photos do
not show any sexual acts. The Government asserted that other
images seized from Long’s devices are more sexually graphic
than those included in its proffer.
4
According to the Government, the exhibits show both
that Long had materials involving minors engaging in sexually
explicit conduct and that Long knew the materials contained
such content. Long objected to the exhibits, arguing that they
would be “highly improper and prejudicial” because “the
capacity of the evidence[] to inspire emotions far outweighs
the probative value.” App. 185. Instead, Long offered to
stipulate3 that “the images are of child pornography and depict
a ‘lascivious exhibition of the genitals’” and proposed that the
Government could rely on “[a] joint written description of the
photos . . . in lieu of the actual photos and video montage.”
App. 185–86. The Government has consistently objected to the
written descriptions and the stipulation as insufficient, arguing
that they don’t prove that Long “knowingly possesse[d]” child
pornography, as required by 18 U.S.C. § 2252(a)(4)(B).
Following Long’s offer to stipulate and his argument
that the Government could use written descriptions in place of
visual evidence, the District Court ordered the parties to
confer and file a joint report including a written
description of the images the government would
show at trial. The report must include either an
agreed-to written description, or else the parties’
separate competing descriptions—if they cannot
agree. This is without prejudice to the
government arguing that the images themselves
must be shown. Following receipt of the report,
3
The Government did not agree to the stipulation, but we treat
offers to stipulate and actual stipulations interchangeably in
this context. See United States v. Finley, 726 F.3d 483, 492 (3d
Cir. 2013).
5
the Court will conduct an appropriate Rule 403
analysis and rule on the objection.
App. 4.
In response to the District Court’s order, the parties
submitted joint descriptions of the four photos but did not
include a description of the video montage. Instead, they
described only the four longer videos from which the montage
was compiled. In its appellate brief, the Government now
describes the montage’s content. The Government asserts that
the montage contains a variety of explicit sexual acts between
children and adults but omits the more grotesque and
inflammatory materials included in the source videos.
C
After reviewing the joint descriptions, the District Court
excluded all five proposed exhibits while allowing the
Government to re-offer the exhibits at trial should Long
“contradict or undermine the stipulations” or if “the trial
evidence reflects a need by the [G]overnment to introduce the
proposed exhibits in light of how other evidence comes in.”
Long, 2022 WL 15523192, at *4. The District Court noted that
it “intentionally” did not view the proposed exhibits, relying
solely on the written descriptions. Id. at *2. The Court reasoned
that, under Cunningham, it had to view the proposed exhibits
only prior to admitting them, but not prior to excluding them.
See id.
According to the District Court, the Government sought
to introduce the exhibits to “aid the jury in determining
whether the video clip montage and images . . . depict sexually
explicit conduct,” as defined by 18 U.S.C. § 2256. Id. at *3
6
(internal quotation marks omitted). The Court found that while
the proposed exhibits had “some probative value,” it was
“lessened considerably by the stipulations of the parties.” Id.
Additionally, because Long agreed to let the Government read
the “detailed written descriptions” into evidence, the Court
reasoned that “the video and images themselves would add
little additional probative value—unlike, say, if the young age
of the victims were in dispute or were not immediately
apparent.” Id. As for the probative value concerning
knowledge, the District Court concluded that “there would be
no real need to show the exhibits over providing a detailed
description of them to the jury.” Id. at *3 n.1.
The District Court excluded the exhibits under Rule 403
for four reasons. First, it found that the exhibits “are graphic
and are likely to provoke a visceral and emotional reaction for
the jurors, and thus pose at least a risk of unfair prejudice.” Id.
at *3. Second, it concluded that the exhibits “would be
cumulative” as they merely serve to “corroborate . . . other
[expected] evidence and testimony that is not even in dispute”
such as the written descriptions, testimony from law
enforcement officers describing what they found, and
screenshots showing image filenames. Id. at *4. Third, it
reasoned that “the proposed exhibits would waste time both in
jury selection and during the trial itself, as the Court would
need to issue cautionary instructions and expects that many
prospective jurors would need to be stricken . . . due to an
unwillingness to look at the video and images.” Id. Fourth, it
found that the exhibits “may also potentially cause some jury
confusion” because “the Court will likely instruct the jury that
even though the proposed exhibits are being shown, certain
elements of the offense . . . can be accepted as being met, in
light of the stipulations.” Id.
7
The Government filed a timely interlocutory appeal. See
18 U.S.C. § 3731. The Government makes two closely related
arguments. First, it argues that the Court erred procedurally by
failing to view the exhibits before ruling on their admissibility.
Second, it argues that the Court erred substantively by
preventing the Government from showing any child
pornography exhibits.
II
The District Court had jurisdiction under 18 U.S.C. §
3231. We have jurisdiction under 18 U.S.C. § 3731 over the
Government’s interlocutory appeal of the District Court’s
order excluding evidence that the Government certified “is a
substantial proof of a fact material in the proceeding,” id., even
though the District Court “suggest[ed] that [its] ruling [was]
preliminary and could change.” United States v. Bergrin, 682
F.3d 261, 277 (3d Cir. 2012) (cleaned up). We review the
District Court’s decisions under Rule 403 for abuse of
discretion. See United States v. Heatherly, 985 F.3d 254, 265
(3d Cir. 2021). If we find that the District Court abused its
discretion in its procedural application of Rule 403, then the
Court is not entitled to deference on its substantive
admissibility determination. See Heatherly, 985 F.3d at 267.
III
We have held that, “generally, a district court should
personally examine challenged evidence before deciding to
admit it under Rule 403.” Cunningham, 694 F.3d at 386. But
in dicta4 we surmised that a district court might not need to
4
The issue before us in Cunningham was improper procedure
when admitting evidence, so our discussion of procedure when
8
view evidence before excluding it if the court has a
“sufficiently detailed description” of the evidence and “it is
obvious to the court that the probative value of the evidence is
so minimal that it is substantially outweighed by the danger of
unfair prejudice.” Id. at 387 (citation omitted). Yet we also
cautioned that this discretion should “not be seen as an
invitation to freely deny the admission of evidence that no one
of ordinary sensibilities would want to review.” Id. We
explained further that a court’s failure to view evidence when
required constitutes a procedural error. See id. at 392. But we
did not identify the threshold at which it is “obvious” that
unfair prejudice substantially outweighs probative value such
that a court may decline to view the evidence. See id. Nor must
we establish that precise threshold here; it suffices to hold that,
on the facts of this case, it was not “obvious” that the evidence
was inadmissible under Rule 403.
The District Court had detailed descriptions of the
photos and the videos the montage was compiled from, but not
a description of the montage itself. After assessing the exhibits’
probative value and risk of unfair prejudice, the Court excluded
the exhibits without viewing them, finding that it was
“obvious” from the written descriptions that the risk of unfair
prejudice substantially outweighed the probative value. Long,
2022 WL 15523192, at *2 (cleaned up); see id. at *3–4. On this
record, the District Court committed procedural error.
excluding evidence was dicta. See United States v. Mallory,
765 F.3d 373, 381 (3d Cir. 2014) (“We have defined dictum as
a statement in a judicial opinion that could have been deleted
without seriously impairing the analytical foundations of the
holding.”) (cleaned up).
9
A
1
We assess the probative value of evidence in relation to
evidentiary alternatives. See United States v. Bailey, 840 F.3d
99, 122 (3d Cir. 2016). In effect, the availability of “alternate,
less prejudicial ways of presenting” similar information
reduces the probative value of the contested evidence. Id. The
written descriptions ordered by the District Court are
evidentiary alternatives to the exhibits, but they are imperfect
substitutes because photos and videos “convey a pictorial
accuracy and detail that words cannot duplicate [and] that
advocates can[not] spin.” United States v. Savage, 970 F.3d
217, 305 (3d Cir. 2020). The need for Long’s jury to view the
exhibits for itself is especially relevant in this case because the
content of the images is an element of the charged crime. See
18 U.S.C. § 2252.
There is also the contested question of whether Long
knew the photos and videos included minors. The Government
contends that the visual exhibits are more useful to a jury on
this question than the written descriptions. For example, the
parties describe one image with the filename “th-41.jpg” as
depicting “a prepubescent female on her hands and knees on a
bed wearing only a shirt with her vagina and anus exposed.”
App. 195. The defense could argue that the “prepubescent”
description does not establish beyond a reasonable doubt that
Long knew the girl was a minor simply from viewing the
photo. Instead, the defense might argue that Long mistakenly
thought the girl was a petite adult with youthful features who
was dressed to look younger. The written description leaves
jurors to speculate about what may or may not be discernable
10
from the photo as they decide a contested element of the
offense. But if jurors were to view the actual photo, their
determination of the victim’s age would be based on the visual
evidence itself, not a description of it. So the District Court
would need to view the actual photo to assess whether its
probative value is substantially outweighed by any contrary
considerations.
Despite the lower evidentiary value of the written
descriptions, the District Court rejected the Government’s
argument that it can choose what evidence it uses to prove its
case under Old Chief v. United States, 519 U.S. 172 (1997).
Long, 2022 WL 15523192, at *4 n.2. The Court found Old
Chief distinguishable for three reasons: (1) it involved “much
less inflammatory evidence” than child pornography; (2) it
primarily addressed concerns about the prosecution’s narrative
integrity that are not present here; and (3) its discussion of
prosecutorial narrative—which the Government relied on—
was dicta. Id. But we have previously relied on Old Chief in
child pornography cases for the proposition that the
Government typically can choose what evidence it uses to
prove its case. See, e.g., Heatherly, 985 F.3d at 269. So the
District Court’s attempt to limit the application of Old Chief
conflicts with our prior interpretations of that case.
2
It’s true that probative value decreases if the evidence is
only probative of elements to which the defendant has
stipulated. Cf. United States v. Herman, 589 F.2d 1191, 1198
(3d Cir. 1978) (noting that “the extent to which [the]
proposition [that the evidence proves] [i]s directly at issue in
the case” influences the evidence’s probative value) (cleaned
up). But even though stipulations can reduce the probative
11
value of exhibits, a “criminal defendant may not stipulate or
admit his way out of the full evidentiary force of the case as
the Government chooses to present it.” Old Chief, 519 U.S. at
186–87. Simply put, a defendant cannot strategically use
stipulations to “dictate to the [G]overnment how to prove its
case.” Cunningham, 694 F.3d at 389 (citing Old Chief, 519
U.S. at 183 n.7). “Indeed, courts are in near-uniform agreement
that the admission of child pornography images or videos is
appropriate, even where the defendant has stipulated, or
offered to stipulate, that those images or videos contained child
pornography.” Id. at 391 (collecting cases from six other
circuits).
This is in part because evidence can be probative of
multiple elements. See Old Chief, 519 U.S. at 187. For
example, an exhibit in a child pornography case can
simultaneously provide evidence of pornographic content and
evidence that the defendant knew the material contained child
pornography. See Cunningham, 694 F.3d at 389. In those
situations, a stipulation that evidence contains child
pornography satisfies the content element but does nothing to
prove knowledge. See United States v. Finley, 726 F.3d 483,
491–94 (3d Cir. 2013).
In this case, Long’s stipulation reduces greatly the
exhibits’ probative value vis-à-vis image content. But it sheds
little light on Long’s knowledge, while the photos and video
montage remain highly probative of that element. Long’s
stipulation that “the images are of child pornography and
depict a ‘lascivious exhibition of the genitals,’” App. 185, does
not help jurors decide whether Long knew that the images
portrayed actual minors. In contrast, seeing the photos and
video montage would give jurors the same vantage that Long
had, which would help them determine whether Long knew the
12
subjects were minors when he viewed the photos. So the
District Court erred when it summarily concluded that “there
would be no real need to show the exhibits” because Long “is
stipulating as to a written description of” the exhibits. Long,
2022 WL 15523192, at *3 n.1.
In short, the District Court overestimated the extent to
which the written descriptions in the stipulation reduce the
exhibits’ probative value under Rule 403. And that contributed
to the Court’s misimpression that it was “obvious” the exhibits’
risk of unfair prejudice substantially outweighed their
probative value. Id. at *2.
B
Not all prejudice is unfair prejudice, and Rule 403 bars
only the latter. Heatherly, 985 F.3d at 266. Evidence that
reveals a defendant’s legal guilt can be highly prejudicial, but
that alone does not make it unfairly so. See id. Instead, a risk
of unfair prejudice exists when “concededly relevant evidence
[can] lure the factfinder into declaring guilt on a ground
different from proof specific to the offense charged.” Old
Chief, 519 U.S. at 180. For example, evidence that triggers
negative emotional reactions can cause unfair prejudice if it
“arouses” a jury’s “sense of horror,” or “provokes its instinct
to punish.” Lesko v. Owens, 881 F.2d 44, 55 (3d Cir. 1989)
(citation omitted). We have excluded evidence that contained
“highly reprehensible and offensive content that might lead a
jury to convict because it thinks that the defendant is a bad
person and deserves punishment, regardless of whether the
defendant committed the charged crime.” United States v.
Welshans, 892 F.3d 566, 576 (3d Cir. 2018) (citation omitted).
Still, “Rule 403 is not a shield to keep juries from learning
details of horrific crimes.” Heatherly, 985 F.3d at 266 (citation
13
omitted). And a district court “is not required to scrub the trial
clean of all evidence that may have an emotional impact.”
Cunningham, 694 F.3d at 391 (quotation omitted).
Additionally, the possibility that evidence will cause
unfair prejudice does not automatically justify exclusion;
rather, that risk must substantially outweigh the probative
value of the evidence. See United States v. Womack, 55 F.4th
219, 234 (3d Cir. 2022). Accordingly, “when evidence is
highly probative, even a large risk of unfair prejudice may be
tolerable.” Id. (cleaned up). This reflects the reality that
sometimes “exhibits [a]re disturbing because the alleged
crimes themselves [a]re extraordinarily disturbing.” Heatherly,
985 F.3d at 266. It’s true that we have identified a heightened
risk of unfair prejudice when pornographic content involves
violence, bondage, or bestiality. See Welshans, 892 F.3d at
575–76; Cunningham, 694 F.3d at 390–91. That’s because
such content is likely to “generate[] intense disgust, far beyond
even other child pornography.” Welshans, 892 F.3d at 575
(cleaned up).
The District Court in this case found that the exhibits
“are graphic and are likely to provoke a visceral and emotional
reaction for the jurors, and thus pose at least a risk of unfair
prejudice.” Long, 2022 WL 15523192, at *3. Yet without
viewing any of the exhibits, the District Court was not able to
balance the risks against the probative value of the proffered
evidence.
We will remand for the District Court to conduct a
proper 403 analysis in the first instance. In addition to any other
factors the District Court may deem relevant, it should consider
the following five issues.
14
First, Long’s alleged possession of child pornography
involving victims under the age of 12 years old is the crime
charged in the indictment. See 18 U.S.C. § 2252. This likely
reduces the risk that a jury might see the exhibits and convict
Long for reasons other than his commission of the charged
crime. If jurors feel disgust towards Long based on a belief that
he intentionally collected child pornography, they are judging
him for committing the charged offense. As in Heatherly, the
emotional impact of the evidence stems from the disturbing
nature of the alleged crime, not some extraneous concern. After
all, Rule 403 “does not protect defendants from devastating
evidence in general.” Heatherly, 985 F.3d at 266.
Second, the photos do not contain sexual acts, and the
video montage, though more graphic and offensive, does not
contain the sort of egregious content that supported a finding
of unfair prejudice in Cunningham and Welshans. While the
exhibits are offensive, they are no more heinous than other
evidence we have permitted for similarly probative reasons.
Examples include material involving “a tied-up baby being
anally penetrated” as evidence of knowledge in a conspiracy to
receive child pornography case, Heatherly, 985 F.3d at 264,
and videos involving “oral sodomy” as evidence of knowledge
in a possession and distribution case, Finley, 726 F.3d at 493;
see id. at 493–94. The exhibits here are, at worst, comparable
to other materials we have found permissible.
Third, the Court should consider whether the
Government has less egregious photos and videos it can offer
for the same evidentiary propositions. In both Welshans and
Cunningham, the Government had less grotesque exhibits with
largely the same probative value, which factored into the
courts’ findings of unfair prejudice. See Heatherly, 985 F.3d at
15
268 (citing Welshans, 892 F.3d at 575–76). There have been
no such findings here.
Fourth, the parties did not give the District Court a
written description of the video montage. Instead, they
summarized the four videos from which the montage was
compiled—without stating which parts of those videos are
included in the montage. As the Government now explains, the
written descriptions of the longer videos describe certain
graphic conduct that is not included in the video montage. So
the Court’s Rule 403 assessment of the video montage was
procedurally flawed because a “court should know what the
challenged evidence actually is” through a “sufficiently
detailed description” before ruling on admissibility if the court
declines to view the exhibit. Cunningham, 694 F.3d at 386–87.
Fifth, Cunningham’s dicta is not an invitation to deny
the admission of highly distasteful evidence. If photos of naked
children displaying their genitals are so obviously inadmissible
under Rule 403 that a court need not view them, then virtually
all child pornography is presumptively inadmissible when a
defendant stipulates to the content of the images. This would
cause Cunningham’s narrow exception to swallow the rule that
courts should generally view contested evidence.
For all these reasons, without viewing the exhibits, it is
far from “obvious” that the risk of unfair prejudice from the
disturbing nature of the exhibits substantially outweighs their
probative value as to Long’s knowledge.
C
The District Court raised additional Rule 403
considerations involving cumulativeness, wasting time, and
16
jury confusion, and expressed concern about revictimization
based on Supreme Court precedent in Paroline v. United
States, 572 U.S. 434 (2014). Long, 2022 WL 15523192, at *2–
4, *4 n.2. None of these concerns make it “obvious” that the
exhibits fail Rule 403’s balancing test.
The District Court reasoned that the image filenames,
the Court-ordered written descriptions, and the expected
testimony from law enforcement on the materials they found
would make the exhibits substantially cumulative compared to
their probative value under Rule 403. But original exhibits
offer uniquely probative value to a jury as compared to
secondhand descriptions of exhibits. It is thus far from
“obvious” that the potentially cumulative nature of the exhibits
substantially outweighs the probative value of admitting any of
the exhibits (or appropriate alternatives).
Additionally, in a trial for possession of child
pornography, it is not a waste of time for the parties to question
prospective jurors during voir dire about child pornography or
for a court to issue cautionary instructions. While admitting
some exhibits may require additional time for voir dire and
instructions, doing so is not wasteful. Rather, the extra work is
essential to ensure a fair trial for both parties. And the District
Court’s concern over jury confusion is unpersuasive because
there is no reason to believe that jurors would be confused by
direct evidence of Long’s alleged crime. See Welshans, 892
F.3d at 577 (explaining that juries are presumed to follow
instructions).
Finally, the District Court was reluctant to view the
exhibits because it believed Supreme Court precedent cautions
against viewing child pornography exhibits. See Long, 2022
WL 15523192, at *2 (citing Paroline, 572 U.S. at 457–58). We
17
read Paroline differently. In that case—which dealt with
calculating restitution for child pornography victims—the
Supreme Court noted that “every viewing of child pornography
is a repetition of the victim’s abuse.” Paroline, 572 U.S. at 457.
This language—which the District Court quoted—is couched
in the context of “[t]he unlawful conduct of everyone who
reproduces, distributes, or possesses the images of the victim’s
abuse . . . [and] plays a part in sustaining and aggravating th[e]
tragedy.” Id. (emphasis added). In other words, it is wrongful
conduct that perpetuates victimization. Nothing in Paroline
suggests that courts should avoid the awful burden of viewing
child pornography exhibits when doing so is necessary for the
court to discharge its judicial duties.
IV
The Supreme Court has cautioned that “questions of
relevance and prejudice are for the District Court to determine
in the first instance.” Sprint/United Mgmt. Co. v. Mendelsohn,
552 U.S. 379, 387 (2008). We too have recognized that “a trial
court is in a far better position than an appellate court to strike
the sensitive balance dictated by Rule 403.” United States v.
Mathis, 264 F.3d 321, 338 (3d Cir. 2001) (cleaned up).
For these reasons, we decline the Government’s request
that we balance the contested evidence under Rule 403. The
prudent course in view of the procedural error we have
identified is to vacate and remand so the District Court can
conduct a fulsome Rule 403 analysis after viewing the
contested evidence.
18
* * *
For the reasons stated, we will vacate the order of the
District Court and remand so it can conduct Rule 403 balancing
anew after viewing the exhibits proffered by the Government.
19