United States v. McElmurry

The court must read every word of evidence when determining if the probative value is substantially outweighed by the danger of unfair prejudice under Federal Rule of Evidence 403.

David McElmurry was convicted for possessing and distributing child pornography after FBI agents executed a search warrant and seized three computers. McElmurry appealed based on arguments of double jeopardy and sufficiency of the evidence. At trial, McElmurry objected to the prosecution wanting to introduce into evidence letters and a recorded interview from 2006 to “prove ‘knowledge’ and ‘lack of mistake.’” The district court overruled Federal Rule of Evidence 403 objections by using the balancing test to determine whether “the probative value was...substantially outweighed by the danger of unfair prejudice.” On review, the Ninth Circuit applied the Blockburger v. United States test to determine if double jeopardy applied, which states, “where the same act or transaction constitutes a violation of two distinct statutory provisions, . . . is whether each provision requires proof of a fact which the other does not.” The panel found that “[c]onvictions for possessing child pornography and distributing the same child pornography do not amount to double jeopardy” because “possessing is a lesser-included offense of receiving child pornography,” not distributing. The panel then reviewed McElmurry’s sufficiency of evidence argument, and held that by not reviewing the letter or the recorded interview before admitting them into evidence over Rule 403 objections, the district court failed to “read every word” presented to the jury pursuant to United States v. Curtin and United States v. Waters, for “a prosecutor’s offer of proof about the words will not suffice” when deciding if the evidence is unduly prejudicial. Thus, the panel held that in order for a district court to “properly exercise its discretion to decide whether the probative value of evidence objected to under Rule 403 outweighs the risk of unfair prejudice,” it must do so by examining the evidence. VACATED and REMANDED.