                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 18-1139
                        ___________________________

                            United States of America

                                      Plaintiff - Appellee

                                        v.

                              Chavez Spotted Horse

                                   Defendant - Appellant
                                 ____________

                    Appeal from United States District Court
                   for the District of South Dakota - Aberdeen
                                  ____________

                         Submitted: December 14, 2018
                            Filed: January 28, 2019
                                ____________

Before LOKEN and ERICKSON, Circuit Judges, and MAGNUSON,1 District
Judge.
                          ____________

ERICKSON, Circuit Judge.

     A jury convicted Chavez Spotted Horse of Receipt of Images Depicting the
Sexual Exploitation of Minors, in violation of 18 U.S.C. §§ 2252(a)(2), 2252(b)(1),

      1
      The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota, sitting by designation.
and 2256(2)(A).2 The district court3 sentenced Spotted Horse to a term of 78 months’
imprisonment. Spotted Horse appeals, arguing the district court erred by (1) denying
his motion for a mistrial; (2) allowing the government’s expert to testify outside the
scope of the expert notice provided under Fed. R. Crim. P. 16 (“Rule 16 notice”); and
(3) refusing to replace an emotional juror. Finding no abuse of discretion by the
district court, we affirm.

I.    Background

       In February 2015, while monitoring the Internet for suspected peer-to-peer
activity involving child pornography, agents of the North Dakota Internet Crimes
Against Children Task Force were alerted that an unknown computer was requesting
images containing child pornography. An administrative subpoena was issued to the
internet service provider to obtain the location of and person’s name assigned to the
IP address. The IP address was assigned to Spotted Horse and Kristi Geigle in Little
Eagle, South Dakota.

       The North Dakota agents transferred their information to the South Dakota
Division of Criminal Investigation. Law enforcement officers in South Dakota
requested assistance from the Federal Bureau of Investigation since the suspected
premises was located on the Standing Rock Indian Reservation. Agents executed a
search warrant at Spotted Horses’s residence on November 3, 2015. They seized
three laptop computers, numerous CDs, hard drives, a tablet, a digital camera, and


      2
       Spotted Horse was also convicted of Possession of Images Depicting the
Sexual Exploitation of Minors, in violation of 18 U.S.C. §§ 2252A(a)(5)(B),
2252A(b)(2), and 2256(8). The court granted the government’s motion to dismiss
this count before sentencing.
      3
       The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.

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digital media. One of the laptops examined was set up in a “RAID” configuration.
A computer configured in a RAID divides the operating system between more than
one hard drive. According to the government’s forensic expert, when the operating
system is spanned between two or more hard drives, many of the file attributes and
sometimes the file path and file name are lost. Such a configuration hampers the
ability to examine the computer’s contents because the only way for two or more
drives to function together is to run the computer with the password. Given the risk
of altering evidence by operating Spotted Horse’s computer, the government’s expert
imaged two hard drives seized by law enforcement. A forensic examination of the
imaged hard drives revealed 1,044 images, of which 246 were considered child
pornography. Included were images determined to be from known child pornography
series, including the Vicky series and the Lolita series. The examination further
revealed that some of the images were found on both drives, even though the laptop
was set up in a RAID configuration. The government’s expert opined the images
found on the drives were placed on the computer after the RAID was created.

       Spotted Horse voluntarily participated in an interview with a law enforcement
officer. He initially denied accessing child pornography on the Internet. Spotted
Horse subsequently admitted to viewing child pornography three to five times a
month for the preceding two to three years, with the most recent viewing the week
before execution of the search warrant. Spotted Horse indicated to the officer that he
attempted to conceal his activities by using a Tor Browser to hide his IP address when
accessing child pornography and by utilizing “wiping” software to delete images.
Spotted Horse provided information to the officer regarding the computers he used
to access child pornography.

      Spotted Horse was charged with receipt and possession of child pornography.
During the three-day trial, the government’s evidence included testimony from a
forensic expert, Spotted Horse’s recorded interview with law enforcement, and 14
images of child pornography. The jury convicted Spotted Horse on both counts.

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Before sentencing, the court granted the government’s motion to dismiss the
possession count. On the receipt count, the court sentenced Spotted Horse to 78
months’ imprisonment to be followed by five years of supervision.4 This timely
appeal followed.

II.   Discussion

      A.     Forensic Expert Testimony

        Spotted Horse argues the district court erred when it allowed the government’s
forensic expert to testify as to three issues: (1) her opinion on how and when
information from the laptop was stored onto the hard drives; (2) the fact she had
reviewed the transcript of Spotted Horse’s recorded interview with law enforcement;
and (3) the age of a girl in one of the images from a series known by law enforcement
to contain child pornography. As a consequence of the court’s refusal to discuss the
first two evidentiary disputes at sidebar, the prosecutor announced in front of the jury
that Spotted Horse had hired his own forensic expert who talked to the government’s
expert. Spotted Horse did not call a forensic expert at trial. He asserts the
conveyance of this additional information was “highly prejudicial” because the jury
“undoubtedly” speculated about why his expert did not testify. Spotted Horse moved
for a mistrial based on the admission of evidence that was purportedly outside the
scope of the government’s Rule 16 notice and which “sent conflicting and confusing
signals to the jury.”

       This Court reviews the denial of a motion for a mistrial under the abuse of
discretion standard. United States v. Kopecky, 891 F.3d 340, 343 (8th Cir. 2018)
(citing United States v. Beeks, 224 F.3d 741, 745 (8th Cir. 2000)). We “review

      4
      The sentence in this case was ordered to be served consecutive to the sentence
imposed in South Dakota District Court Case No.1:17-cr-10005, Eighth Circuit Court
of Appeals No. 18-1138.

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evidentiary rulings ‘for clear abuse of discretion, reversing only when an improper
evidentiary ruling affected the defendant’s substantial rights or had more than a slight
influence on the verdict.’” Chism v. CNH Am. LLC, 638 F.3d 637, 640 (8th Cir.
2011) (quoting United States v. Summage, 575 F.3d 864, 877 (8th Cir. 2009)).


      As noted by the district court, the expert notice was broad and covered a variety
of subjects, including, as examples, the expert’s knowledge pertaining to storage of
Internet searches in general terms and/or as applied in this case, her knowledge
regarding the process of saving downloaded material in general terms and/or as
applied in this case, her understanding of time stamps on data in general terms and/or
as applied in this case, her knowledge and understanding of common methods of
“wiping” or “sanitizing” computers and hard drives to remove evidence of child
pornography, and her knowledge and opinions regarding the examination of computer
media seized in this particular case. Expert testimony pertaining to the laptop’s
RAID configuration and the expert’s opinions regarding when the images were stored
on the hard drives are subjects clearly within the scope of the Rule 16 notice.


      The district court did not explicitly address Spotted Horse’s objection that the
expert’s revelation that the transcript of Spotted Horse’s law enforcement interview
was outside the scope of the Rule 16 notice. Rather, the court determined the
testimony was admissible, concluding:


       An expert may rely on studies, may rely on experience. And she may
       rely on anything that’s part of the record here. And the transcript --
       actually the recording itself is part of the record here, that any expert
       would be expected to review along with all the other evidence in the
       case before expressing an opinion and coming to court to testify.


After further discussion about the expert’s review of the transcript, the court
reiterated: “Well, obviously, as I said, she is in fact obligated to look at the entire file

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including the transcript and she has done that. She shouldn't be coming to court and
testifying as an expert unless she is very familiar with the file.”


       Fed. R. Crim. P. 16(a)(1)(G) requires the government to disclose, upon request,
a summary “describ[ing] the [expert] witness’s opinions, the bases and reasons for
those opinions, and the witness’s qualifications.” Spotted Horse has not shown a
Rule 16 violation. The rule does not require a recitation of every piece of information
in the case that the expert reviewed. It requires notice, in summary fashion, of the
expert’s opinions, bases for the opinions, and reasons for the opinions. More
importantly, at most, the record demonstrates that any information obtained by
reviewing the transcript corroborated the expert’s opinions rather than formed the
basis for her opinions.


        We find no significance, no evidence of jury confusion, and no evidence of
possible prejudice arising from the expert’s review of the transcript of the recording
rather than the recording itself. The recording was admitted at trial. The jury was
free to reject any expert opinion that they found to be inconsistent with the evidence.
Further, the court controlled the scope of the expert testimony. While the court
permitted the expert to testify that she reviewed the transcript of Spotted Horse’s
interview, it directed the prosecutor to move on when he tried to elicit statements
Spotted Horse made during the interview through the expert. The court did not abuse
its discretion by allowing the expert to inform the jury that she reviewed the transcript
of Spotted Horse’s interview with law enforcement.


       As the court was entertaining arguments about the scope of permissible expert
testimony, the prosecutor said: “I would point out to the Court [defense counsel] did
have an expert and his expert did talk with out expert pretrial so that they could
discuss these matters - -.” Because Spotted Horse did not object to the prosecutor’s
fleeting comment about the government’s expert consulting with Spotted Horse’s

                                          -6-
expert, who was not called as a witness at trial, we review his claim for plain error.
Chism, 638 F.3d at 640.


       “Under plain error review, we will only reverse where the error was plain,
affected the party’s substantial rights, and ‘seriously affects the fairness, integrity, or
public reputation of judicial proceedings.’” Id. (quoting United States v. Farrell, 563
F.3d 364, 377 (8th Cir. 2009)). Spotted Horse has not identified any evidence that
the jury “undoubtedly” wondered what happened to his expert, or that the jury gave
any consideration to this statement made during what turned out to be a fairly
extensive colloquy regarding the scope of permissible expert testimony. While it
would have been preferable to make the arguments outside the jury’s presence, we do
not find the prosecutor’s fleeting reference to Spotted Horse’s expert affected Spotted
Horse’s substantial rights or affected the fairness or integrity of the trial. The district
court did not abuse its discretion in denying a mistrial based on these claimed errors.


       The court also allowed the expert to testify as to the age of a girl in a “known
series” of child pornography found on Spotted Horse’s computer. The expert testified
that a “known series” is one in which the child depicted in an image has been
identified and the child’s age verified. In this case, the expert informed the jury that
the age of the girl depicted in a Vicky series image found on Spotted Horse’s laptop
was 10 or 11 years old at the time the photograph was taken.


       Spotted Horse argues this testimony was outside the scope of the Rule 16
notice. This testimony was clearly within the scope of the notice. The notice
included expert testimony regarding the expert’s knowledge of law enforcement’s
utilization of the National Center for Missing and Exploited Children and her
knowledge and personal recognition of known child pornography series. Spotted
Horse’s argument that the testimony was outside of the scope of the expert notice is
without merit.

                                           -7-
      B.     Request to Seat Alternate Juror


      Spotted Horse argues the district court was required to replace a juror who
cried when images of child pornography were published at trial during the
government’s case-in-chief. We have explained the standard for replacing a juror as
follows:

      The decision to replace a juror with an alternate juror is committed to
      the discretion of the trial court. If the record shows a legitimate basis for
      the district court's decision to retain the juror, there is no abuse of
      discretion. Absent a showing of actual bias on the part of a prospective
      juror, this court should defer to the discretion of the trial court on a
      motion for mistrial related to the composition of the jury. Finally, a
      district court does not abuse its discretion by refusing to excuse a
      challenged juror after the juror affirmed their impartiality and the judge
      favorably evaluated their demeanor. The courts presume that a
      prospective juror is impartial, and a party seeking to strike a venire
      member for cause must show that the prospective juror is unable to lay
      aside his or her impressions or opinions and render a verdict based on
      the evidence presented in court. Essentially, to fail this standard, a juror
      must profess his inability to be impartial and resist any attempt to
      rehabilitate his position.
United States v. Dale, 614 F.3d 942, 959 (8th Cir. 2010) (internal quotations and
citations omitted).


       Spotted Horse raised no concern about the emotional juror when it happened.
The issue was brought to the court’s attention for the first time after the parties had
rested and the prosecutor was about to commence his closing argument. The court
denied Spotted Horse’s request for individual voir dire of the juror. Before officially
releasing the alternate juror, the court identified the alternate juror and asked whether
the other twelve jurors were “feeling okay” and whether they were “able to proceed


                                          -8-
with no problem.” No juror expressed any concern. A juror’s emotional reaction to
seeing images of child pornography does not render a juror unable to be fair and
impartial or establish that a juror’s objectivity has been compromised. “The tears of
a juror may reflect a sympathetic nature, but standing alone [do] not demonstrate
incompetency.” United States v. Marchant, 774 F.2d 888, 895 (8th Cir. 1985). The
record is devoid of any evidence that the juror impacted by images of child
pornography was unable to be fair or impartial. The district court did not abuse its
discretion by refusing to remove the juror.


III.   Conclusion


       For the foregoing reasons, we affirm the judgment of the district court.
                       ______________________________




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