United States v. West

53 F.4th 1104

UNITED STATES of America, Plaintiff-Appellee,

v.Jeffrey M. WEST, Defendant-Appellant.

No. 21-2701

United States Court of Appeals, Seventh Circuit.

Argued September 20, 2022

Decided November 22, 2022

Jeffrey Kienstra, Attorney, Office of the United States Attorney, Peoria, IL, for Plaintiff-Appellee.

Amir Mohabbat, Attorney, Chicagoland & Suburban Law Firm, P.C., Oak Park, IL, for Defendant-Appellant.

Before Easterbrook, Hamilton, and Brennan, Circuit Judges.

Hamilton, Circuit Judge.

Appellant Jeffrey West was convicted of possessing child pornography and other sexual offenses against children. At trial, the district court admitted photographs and videos containing child pornography that were discovered on electronic devices seized from West's home and business. Sixteen of those exhibits were shown to the jury. On appeal, West argues that the admission and display of two exhibits were unfairly prejudicial and needlessly cumulative, in violation of Federal Rule of Evidence 403 and his broad reading of Old Chief v. United States , 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). We affirm.

I. Factual and Procedural History

Police investigated a young boy's report that West molested him and paid him for a nude photograph. Police searched West's home and business and found a laptop computer and multiple flash drives. A detective searched the seized devices and discovered a total of roughly one thousand still photographs and videos of child pornography.

West was charged with one count of possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2), two counts of sexual exploitation of a minor in violation of 18 U.S.C. § 2251(a) and (e), two counts of receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A) and (b)(1), and two counts of commission of an offense by a registered sex offender in violation of 18 U.S.C. § 2260A.

Before trial, West stipulated that certain images found on his devices—specifically, Government Exhibits 1F, 1G, 2B, 5C, and 6D—were part of known child pornography series identified by the National Center for Missing and Exploited Children. West stipulated that, if called to testify, an FBI agent would say that the agent participated in the investigation identifying the images in question, that the children portrayed were minors, that the images were produced outside Illinois, and that they were distributed widely on the internet.

On the first day of trial, the court admitted dozens of exhibits offered by the government, including several photographs and videos containing child pornography that were found on West's devices. The exhibits at issue in this appeal (Government Exhibits 5E and 6E) were among those admitted. Defense counsel did not object.

Over the course of the trial, the government briefly showed images from West's devices to the jury. In total, the government displayed sixteen of the roughly one thousand photographs and videos containing child pornography that were stored on West's devices.

The defense did not object to the government's publication of the images until the end of the government's case in chief. The government's final witness, an FBI agent, testified that six images found on West's devices were from a child pornography series he had investigated. During direct examination of the agent, the government briefly published Exhibits 3B, 3C, 3D, and 3E. For each exhibit, the prosecutor asked the agent to identify the child by first initial and to state the child's age when the image was created. Defense counsel did not object. As the prosecutor began asking the agent about a fifth exhibit (5E), West objected. His counsel asserted that the images and facts were stipulated to and so there was no need to continue displaying the exhibits. The government countered that these facts were not stipulated. The court overruled the objection, and the government displayed two more exhibits (5E and 6E) before resting its case. The jury convicted West on all counts.

West renews his objection on appeal, arguing that the admission and publication of child pornography images at his trial violated Federal Rule of Evidence 403 on the theory that the content of the images was not in dispute, so the exhibits' admission was needlessly cumulative and unfairly prejudicial. He also argues that because he had stipulated that child pornography was found on the devices recovered from his home and business, their admission at trial violated Old Chief v. United States , 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997).

II. Analysis

A. Admission of the Exhibits

We review a trial court's evidentiary rulings for an abuse of discretion. United States v. Resnick , 823 F.3d 888, 894 (7th Cir. 2016). We will reverse these rulings "only if no reasonable person could take the judge's view of the matter." United States v. Pulliam , 973 F.3d 775, 782 (7th Cir. 2020), quoting United States v. Brown , 871 F.3d 532, 536 (7th Cir. 2017).

First, West's challenge to the exhibits' admission is waived. On the first day of trial, the government moved to admit into evidence dozens of exhibits, including those that are the subject of this appeal. When asked whether West had any objection to the government's motion, defense counsel responded, "No, Your Honor." Because West affirmatively stated at trial that he had no objection to the admission of the exhibits, he cannot challenge their admission on appeal. United States v. Redditt , 381 F.3d 597, 602 (7th Cir. 2004) ("When trial counsel affirmatively represents that he has no objection to the admission of certain evidence, he has intentionally waived any argument to the contrary.").

Even if West's challenge were not deemed waived, we would reject it on the merits. West asks this Court to extend Old Chief and find that the trial court violated Federal Rule of Evidence 403 by admitting child pornography images at trial when he supposedly stipulated that the images contained child pornography. There are several problems with this theory.

Most generally, in Old Chief , the Supreme Court affirmed the general principle that "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." 519 U.S. at 186–87, 117 S.Ct. 644. Old Chief actually held, narrowly, that that general rule has "virtually no application" where the issue in dispute is the defendant's status as a felon. Id. at 190, 117 S.Ct. 644. In such cases, it violates Rule 403 to admit the record of conviction to prove the defendant's status when the defendant is willing to stipulate. Id. at 191, 117 S.Ct. 644.¹

The Court limited its holding in Old Chief to cases where the defendant's felon status is at issue. 519 U.S. at 183 n.7, 117 S.Ct. 644 ; see also United States v. Phillippi , 442 F.3d 1061, 1064 (7th Cir. 2006), citing Old Chief on this point. We consequently find West's arguments for extending Old Chief unconvincing.

West's argument also fails for a reason more specific to this case. The exhibits at issue in this appeal were not actually subject to any stipulation. Before trial, West stipulated that Exhibits 1F, 1G, 2B, 5C, and 6D were part of known child pornography series, that the children depicted were minors, and that the images were produced outside Illinois and were widely distributed on the internet. On appeal, West argues that the district court was incorrect to overrule his objection to the introduction of Exhibits 5E and 6E shortly after the government displayed Exhibits 3B, 3C, 3D, and 3E. Because those exhibits were not subject to any stipulation, their admission did not offend even defendant's overly broad reading of Old Chief . It certainly did not run counter to the actual reasoning and holding of Old Chief .

Nor did the admission of the challenged exhibits run counter to Rule 403 more generally. In relevant part, Rule 403 provides that relevant evidence may be excluded "if its probative value is substantially outweighed by a danger of ... unfair prejudice" or "needlessly presenting cumulative evidence." Fed. R. Evid. 403. "Because all probative evidence is to some extent prejudicial, we have consistently emphasized that Rule 403 balancing turns on whether the prejudice is unfair. " United States v. Eads , 729 F.3d 769, 777 (7th Cir. 2013), quoting United States v. McKibbins , 656 F.3d 707, 712 (7th Cir. 2011). To determine whether an exhibit is unfairly prejudicial, we use a "sliding scale approach: as the probative value increases, so does our tolerance of the risk of prejudice." United States v. Earls , 704 F.3d 466, 471 (7th Cir. 2012), quoting Whitehead v. Bond , 680 F.3d 919, 930 (7th Cir. 2012). Evidence should not be excluded as unfairly prejudicial simply because it is "graphic or disturbing." United States v. Kapp , 419 F.3d 666, 677 (7th Cir. 2005). Depending on the nature of the offense, graphic or disturbing evidence may be central to the government's case.

Evidence may be deemed needlessly cumulative "when it adds very little to the probative force of the other evidence in the case," such that its "contribution to the determination of truth would be outweighed by its contribution to the length of the trial." United States v. Gardner , 211 F.3d 1049, 1055 (7th Cir. 2000), quoting United States v. Williams , 81 F.3d 1434, 1443 (7th Cir. 1996) ; see also United States v. Hicks , 368 F.3d 801, 808 (7th Cir. 2004) (evidence was not needlessly cumulative where it was important to the government's case and its presentation took up a "comparatively small amount of time" at trial).

The exhibits at issue here were neither unfairly prejudicial nor needlessly cumulative, considering their probative value. At trial, West argued that he did not...