                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4084


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ROBERT SPRINGSTEAD,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.    Mark S. Davis, District
Judge. (2:11-cr-00061-MSD-FBS-1)


Submitted:   November 30, 2012            Decided:   April 15, 2013


Before AGEE, KEENAN, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Lawrence H. Woodward, Jr., SHUTTLEWORTH, RULOFF, SWAIN, HADDAD &
MORECOCK, P.C., Virginia Beach, Virginia, for Appellant.    Neil
H. MacBride, United States Attorney, Benjamin L. Hatch,
Elizabeth M. Yusi, Assistant United States Attorneys, Norfolk,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            After a two-day bench trial, Robert Springstead was

convicted of eleven counts of distribution of child pornography,

three    counts        of    receipt   of   child   pornography,       one    count       of

possession       of     child     pornography,      two    counts    of    receipt       of

obscene visual representations of the sexual abuse of children,

and one count of possession of obscene visual representations of

the sexual abuse of children.                He received a 204-month sentence.

On     appeal,     Springstead         contends     that     the     district        court

erroneously       admitted         expert     testimony     and      evidence       of    a

fictional story Springstead wrote when he was fourteen years

old.    Finding no reversible error, we affirm.

            On appeal, Springstead first argues that the district

court erred in admitting Special Agent Paul Wolpert’s testimony

regarding    his       forensic     examination     of    Springstead’s       computer.

Specifically,          Springstead         posits   that     Wolpert       lacked        the

requisite knowledge and training to explain how the Forensic

Tool Kit (“FTK”) software used in this case was designed and

functioned and that the Government failed to offer testimony

regarding        the        reliability,     peer   review,        error     rate,       and

standards of the industry for the software as required by Fed.

R. Evid. 702.

             This court reviews the district court’s decision to

admit expert testimony under Fed. R. Evid. 702 for abuse of

                                              2
discretion.         United States v. Wilson, 484 F.3d 267, 273 (4th

Cir. 2007) (citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S.

137, 152 (1999)).           Pursuant to Rule 702,

       A witness who is qualified as an expert by knowledge,
       skill, experience, training, or education may testify
       in the form of an opinion or otherwise if: (a) the
       expert’s scientific, technical, or other specialized
       knowledge will help the trier of fact to understand
       the evidence or to determine a fact in issue; (b) the
       testimony is based on sufficient facts or data; (c)
       the testimony is the product of reliable principles
       and methods; and (d) the expert has reliably applied
       the principles and methods to the facts of the case.

Fed.    R.    Evid.      702.        The    district         court   must       be     granted

“considerable leeway in deciding in a particular case how to go

about     determining        whether        particular          expert     testimony        is

reliable.”      Wilson, 484 F.3d at 273.                     If an expert seeks to be

qualified on the basis of experience, the district court must

require      that   he      “explain       how       his   experience     leads        to   the

conclusion reached, why his experience is a sufficient basis for

the opinion, and how his experience is reliably applied to the

facts.”       Id.     at    274   (internal          quotation    marks     and       citation

omitted).

              The     district        court          heard     considerable           evidence

regarding      Wolpert’s          education,          experience,        expertise,         and

personal involvement in this case.                     The district court qualified

Wolpert as an expert in internet and computer forensics, finding

that    Wolpert       had     “the     requisite           knowledge      and        training,


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experience, and because of the certification process, there’s

been a method . . . whereby he’s been tested on his familiarity

and ability to operate the [FTK] that he uses in his computer

forensic investigations.”

            Having       reviewed        the       record      with    the    appropriate

standards in mind, we conclude the district court’s decision to

qualify Wolpert as an expert did not constitute an abuse of

discretion.           See United States v. Johnson, 617 F.3d 286, 293

(4th Cir. 2010) (noting the process of forensic data extraction

requires “some specialized knowledge or skill or education that

is   not   in    the     possession       of       the   jurors”)     (quoting     Certain

Underwriters at Lloyd’s, London v. Sinkovich, 232 F.3d 200, 203

(4th Cir. 2000) (internal quotations omitted)); see also United

States v. Ganier, 468 F.3d 920, 926 (6th Cir. 2006) (holding

that   testimony        that     would    “require        [the    witness]       to    apply

knowledge       and    familiarity       with       computers    and    the   particular

forensic software well beyond that of the average layperson”

fell within the scope of Rule 702).                      To the extent Springstead

challenges the reliability of Wolpert’s testimony on the ground

that the district court inadequately considered factors such as

testing,    peer       review,    error    rates,        and    acceptability         in   the

relevant scientific community, Daubert v. Merrell Dow Pharms.,

Inc., 509 U.S. 579, 593-94 (1993), the test of reliability is

“flexible,”       and    Daubert’s       list       of   specific      factors    neither

                                               4
necessarily nor exclusively applies to all experts or in every

case.     Kumho Tire Co., 526 U.S. at 141.

               Next, Springstead argues the district court erred in

admitting a two-page fictional story Springstead wrote at the

age of fourteen about the sexual encounters of a six-year-old

girl.      Under Rule 404(b), “[e]vidence of a crime, wrong, or

other act is not admissible to prove a person’s character in

order     to    show”    that    his   action       on       a       particular      occasion

conformed to that character.               Fed. R. Evid. 404(b)(1).                       Such

evidence “may be admissible for another purpose, such as proving

motive,        opportunity,     intent,        preparation,               plan,    knowledge,

identity, absence of mistake, or lack of accident.”                                  Fed. R.

Evid.     404(b)(2).       Further,       “[t]o     be       admissible           under   Rule

404(b), evidence must be (1) relevant to an issue other than

character; (2) necessary; and (3) reliable.”                              United States v.

Siegel, 536 F.3d 306, 317 (4th Cir. 2008) (internal quotation

marks   omitted).        “Rule    404(b)       is   .    .       .   an    inclusive      rule,

admitting all evidence of other crimes or acts except that which

tends to prove only criminal disposition.”                                United States v.

Young, 248 F.3d 260, 271-72 (4th Cir. 2001) (internal quotation

marks omitted).

               “Evidence sought to be admitted under Rule 404(b) must

also satisfy [Fed. R. Evid.] 403 . . . ,”                            Siegel, 536 F.3d at

319,    such      that   its    probative        value       is       not     substantially

                                           5
outweighed by its prejudicial value.                            United States v. Queen,

132 F.3d 991, 995 (4th Cir. 1997).                        Under Rule 403, “damage to a

defendant’s       case    is       not     a    basis       for       excluding      probative

evidence”       because        “[e]vidence            that       is     highly       probative

invariably      will     be     prejudicial           to     the      defense.”           United

States v. Grimmond, 137 F.3d 823, 833 (4th Cir. 1998).                               Rule 403

requires     exclusion        of     evidence        only       where     the     trial    judge

perceives “a genuine risk that the emotions of the jury will be

excited to irrational behavior” disproportionate to the value of

the proffered evidence.               United States v. Mohr, 318 F.3d 613,

618 (4th Cir. 2003) (internal quotation marks omitted).

            Assuming,         without      deciding,         that     the   district       court

erred in admitting the letter authored by Springstead at the age

of    fourteen,    we     nevertheless              conclude       that     any    error    was

harmless and does not warrant reversal.                            See Fed. R. Crim. P.

52(a) (“Any error, defect, irregularity, or variance that does

not   affect    substantial          rights     must       be    disregarded.”);          United

States     v.   Lighty,        616       F.3d       321,    355–56      (4th      Cir.     2010)

(erroneous      admission       of    prior         bad    acts     evidence       under    Rule

404(b) subject to harmless-error analysis).                           Under the harmless-

error standard, we will not reverse if we can “say, with fair

assurance, after pondering all that happened without stripping

the erroneous action from the whole, that the judgment was not

substantially swayed by the error.”                        Kotteakos v. United States,

                                                6
328 U.S. 750, 765 (1946); United States v. Brooks, 111 F.3d 365,

371 (4th Cir. 1997).               “This inquiry is not whether, absent the

improperly        admitted      evidence,      sufficient        evidence         existed     to

convict. . . . Rather, the inquiry is whether we can say that we

believe it highly probable that the error did not affect the

judgment.”          Lighty,       616   F.3d       at   356   (citation       and    internal

quotation marks omitted).

                 As noted by Springstead on appeal, the thrust of his

defense     at     trial    was    that      the    Government      did     not     produce    a

qualified        expert    to     explain     when      and   how     child    pornographic

images were placed on the hard drive, particularly in light of

Springstead’s denial of any intentional possession, receipt, or

distribution of child pornography.                        Springstead further argued

that the Government could not produce a witness to testify that

Springstead ever expressed any interest in child pornography or

anyone      to    testify       that    he    or    she    saw   it    on     Springstead’s

computer or otherwise in Springstead’s possession.                             In light of

this failure, Springstead argues, the admission of the letter

was   not    only    erroneous,         but    prejudicial,         requiring       reversal.

Contrary to Springstead’s assertions, the Government introduced

significant evidence implicating him in the possession, receipt,

and distribution of child pornography.                        Therefore, even if the

district court erred in admitting the letter, which we assume

without deciding, we conclude that any error was harmless.

                                               7
            Last,    Springstead      raises      a    cursory        claim    that   the

evidence introduced at trial was insufficient to convict him.

This    argument    is    premised    solely      on    the     inadmissibility        of

Wolpert’s   expert       testimony    and   the       letter.       Having      rejected

Springstead’s       arguments    as    to    the       admission        of    Wolpert’s

testimony and concluding sufficient evidence exists to support

the convictions, we determine that this claim is without merit.

            Accordingly, we affirm the judgment of the district

court.     We dispense with oral argument because the facts and

legal    contentions      are   adequately     presented         in    the    materials

before   this   Court     and   argument    would       not   aid      the    decisional

process.



                                                                                AFFIRMED




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