                                                                    FILED
                                                        United States Court of Appeals
                                                                Tenth Circuit

                                                             November 14, 2017
                                     PUBLISH                Elisabeth A. Shumaker
                                                                Clerk of Court
                  UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
 v.                                                   No. 15-3182
 STEVEN J. MEISEL,

             Defendant - Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF KANSAS
                  (D.C. NO. 6:14-CR-10106-JTM-1)


Daniel T. Hansmeier, Appellate Chief (Melody Brannon, Federal Public Defender,
with him on the briefs), Kansas Federal Public Defender, Kansas City, Kansas, for
Defendant-Appellant.

Jason W. Hart, Assistant United States Attorney (Barry R. Grissom, United States
Attorney, with him on the brief), District of Kansas, Wichita, Kansas, for
Plaintiff-Appellee.


Before TYMKOVICH, Chief Judge, BRISCOE, and MURPHY, Circuit Judges.


MURPHY, Circuit Judge.
                               I. INTRODUCTION

      A jury found Steven Meisel guilty of distributing and possessing child

pornography. See 18 U.S.C. § 2252(a)(2), (a)(4)(B). Meisel asserts the district

court (1) violated his right to present a complete defense by preventing him from

adducing alternative perpetrator evidence 1; and (2) erred in denying his request to

instruct the jury on “identity.” Even assuming the district court erred in limiting

Meisel’s ability to present alternative perpetrator evidence, any such error was

harmless. And, since the jury instructions, considered as a whole, adequately

conveyed to the jury the gist of Meisel’s defense, the district court did not abuse

its discretion in refusing to give Meisel’s proffered instruction. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms Meisel’s convictions.

                               II. BACKGROUND

A. The Criminal Investigation

      On May 9, 2014, Detective Jennifer Wright saw a user on the Ares file-

sharing network 2 offering child pornography. After downloading five videos, she

captured the IP address, the user’s Ares nickname, and the user’s version of Ares.

      1
       See Holmes v. South Carolina, 547 U.S. 319, 321, 330-31 (2006) (holding
unconstitutional a state evidentiary rule automatically excluding alternative
perpetrator evidence when the prosecution case was strong).
      2
       “Consistent with other file-sharing programs, Ares permits users to
download and view files stored on other users’ computers in their shared folders.”
United States v. Abbring, 788 F.3d 565, 566 (6th Cir. 2015). For a description of
how peer-to-peer file sharing programs operate, see generally MGM Studios Inc.
v. Grokster, Ltd., 545 U.S. 913, 919-23 (2005).

                                         -2-
Based on the captured IP address, she obtained a search warrant for a home

Meisel shared with Linda Thomas. When the warrant was executed, officers

found two computers: Thomas’s and Meisel’s. Meisel’s computer, which had a

picture of a unicorn on the cover, was connected to an external hard drive.

      Officers interviewed Thomas during execution of the warrant. She said

(1) Meisel moved in with her three years earlier, in the fall of 2011; (2) W.R.,

Meisel’s son, lived with them for one year, but had been gone from the residence

for one year; and (3) she previously shared Meisel’s computer. Thomas bought

her own computer approximately one year earlier, after she discovered child

pornography on Meisel’s computer. She immediately confronted Meisel about the

child pornography and, in response, Meisel blamed W.R. At that point, Meisel

insisted Thomas obtain her own computer. Thereafter, according to Thomas,

Meisel “was the only one that was ever on there because he wouldn’t let anybody

use his computer.” 3 Thomas said that when Meisel had friends over, they had to

bring their own computers to access the internet.

      During his interview with officers, Meisel acknowledged owning the

computer and external drive and said he did not share his password with anyone.

He identified his user profile as “Unicorn” and provided the password. This was



      3
        The time line in Thomas’s statement was corroborated at trial by evidence
the last password change on Meisel’s computer occurred roughly a year before the
execution of the search warrant.

                                         -3-
the only profile on the computer associated with child pornography. 4 Despite

being aware of the purpose of the interview, it took Meisel some time before he

told officers he previously found, in a folder titled “Test,” child pornography sites

and pictures. Officers did find a “Test” folder on the external hard drive. That

“Test” folder turned out to be the exact location child pornography was stored,

some having been added just three days prior to the execution of the warrant.

Meisel attributed the “Test” folder and child porn to W.R. 5

      In contrast to Thomas’s statement, Meisel said he was the one who first

found the child pornography on his computer. He claimed he opened one picture

and deleted the rest based on the titles. 6 He admitted using Ares, stating his Ares


      4
       “A user profile is a prevalent software operating tool that allows a user to
access a personal desktop set-up, folders, files, and software programs. When a
user profile is password protected, its desktop set-up and files cannot be readily
accessed by others who do not know the password.” United States v. Grzybowicz,
747 F.3d 1296, 1300 n.1 (11th Cir. 2014).
      5
       The prosecution asserted at trial that Meisel’s reference to a “Test” folder
was a clear indication of his awareness of the child pornography found in the
“Test” folder on the external hard drive. In an attempt to explain his interview
reference, Meisel testified it was to an entirely different “Test” folder, this one
supposedly located on the computer’s internal hard drive. That is, he asserted the
child pornography identified by Thomas was located on the computer itself, not
the external hard drive, and he deleted that material after its discovery. Meisel’s
testimony in this regard was not supported by any forensic evidence. Instead, the
undisputed forensic evidence indicated there was no such folder on Meisel’s
computer and, if such a folder had ever existed, it could not be recovered.
      6
      As to the “Test” folder on the external hard drive, a forensic examination
showed contraband located therein predated W.R.’s arrival and other contraband
was added after his departure. The forensic examination indicated no “Test”
                                                                      (continued...)

                                         -4-
nickname of “Uni1” was consistent with his user profile name and his love of

unicorns. He claimed he left the Ares settings to “default,” but later described

changing them to direct files to particular locations. He said the external hard

drive, which he purchased at a yard sale three years earlier, was always connected

to the computer. When asked about organization of the external hard drive, he

claimed he had not “sorted through [it] for I’d say a year or so.” Challenged

about the more recent activity after W.R. was gone, Meisel stated: “If it’s on

there, and it’s recent, then it had to have been me.” He repeated, “If you found it

on there, evidently it’s on there somehow, nobody else used it, I guess I put it

there . . . . If it’s in there, I must have put it in there somehow.”

      Officers conducted a forensic examination of Meisel’s computer. Meisel

purchased the computer on September 14, 2011. Regarding login information for

the “Unicorn” user profile, the laptop recorded 3249 successful logins prior to

June 13, 2014, equating to roughly 3 logins (and, thus, logouts) per day. The

Ares client was installed the same day Meisel purchased the computer. The Ares

version (2.1.6.3040) and user-nickname (“UNI1”) matched those captured by

Wright when she originally saw a user on the Ares file-sharing network offering

child pornography. The videos downloaded by Wright during the investigation

were present on the external hard drive under the “Test” folder.


      6
       (...continued)
folder existed on the computer’s internal hard drive.

                                           -5-
      The external hard drive had been intentionally assigned the specific drive

letter “H.” Meisel’s Ares client was set to share from (and only from) the “Test”

folder and its subfolders on the “H” external drive. These folders were organized

according to content (i.e., “pics” contained still images, “videos” contained only

videos, and “text” contained “literature”). Under the “videos” folder, the files

were further organized according to content (e.g., “beast” for bestiality, “mas” for

masturbation, “orl” for oral sex, “ful” for intercourse, etc.). The Ares client also

identified that only videos, images, and documents were being shared, not music

or software. Similar to the sharing feature, Meisel’s Ares client was set to

download only to the “Test” folder on the external drive. Thus, both the external

hard drive and the sharing/downloading features of Ares had been specially set to

the “H” drive, regardless of other available drive letters.

      Only nine videos downloaded to the “Test” folder had not yet been sorted

into subcategory folders. Almost all had been downloaded recently, except for

one titled “suicide.” The “Test” folder and its subfolders had been specifically

set to show “large” previews of the contents, such that any user would

immediately see the actual contents rather than an icon. Child pornography from

the external hard drive was frequently viewed on Meisel’s computer via the

Windows Media player. Windows Explorer showed the “Test” folder, and its

descriptively-named subfolders, had been recently and frequently accessed, to the

exclusion of any other folder. Likewise, both Wordpad and Adobe Reader

                                          -6-
indicated sexualized literature involving children was recently accessed via

Meisel’s computer. Recent search terms in the Ares client revealed terms

associated with child pornography. Finally, the forensic examination revealed

that all remotely recent activity on the “H” drive had taken place in the “Test”

folder (i.e., the very location on the hard drive that contained child pornography).

B. Pre-Trial Proceedings

      A grand jury indicted Meisel on a charge of distributing five specific

videos of child pornography on May 9, 2014 (i.e., the day Detective Wright

initiated her investigation), in violation of 18 U.S.C. § 2252(a)(2), and a charge of

possessing child pornography on June 13, 2014 (i.e., the day the warrant was

executed), in violation of 18 U.S.C. § 2252(a)(4)(B). Meisel indicated he

intended to introduce at trial evidence other individuals were responsible for the

child pornography on his external hard drive. The government responded by

filing a motion in limine to exclude such evidence. Relying on Holmes v. South

Carolina, 547 U.S. 319, 327 (2006), the government noted it was widely accepted

that evidence tending to prove another person may have committed the charged

crime may be excluded if it is “speculative or remote, or does not tend to prove or

disprove a material fact in issue at the defendant’s trial.” Furthermore, according

to the government, Meisel had proffered no evidence of a legally sufficient nexus

between any individual and his computer, his external hard drive, his Ares profile,

or any child pornography found on his computer or external hard drive. Thus, the

                                         -7-
government asserted the district court should not allow Meisel to argue another

individual was the actual perpetrator.

      Meisel filed a response and a proffer. He denied downloading the child

pornography found on his external hard drive or knowing of its existence. He

asserted the sole fact issue to be resolved by the jury was: “[W]ho—what person

or persons—sat at the lap top computer and used it to access child pornography

from the external hard drive? Who possessed—knowingly and intentionally—the

child pornography on the external hard drive?” He asserted a sufficient nexus

existed between three individuals—J.H., S.H., and W.R.—and the child

pornography on the external hard drive. He thereafter proffered evidence in

support of his proposed alternate-perpetrator defense.

      J.H.

      Meisel asserted J.H. had “unfettered access” to the computer and external

hard drive at times Meisel was absent from the home. He further asserted: J.H.,

Thomas’s caregiver, was at the home at least three hours a day, four days a week;

J.H. had a key to the home; and, due to her physical condition and medications,

Thomas “sleeps a great deal,” specifically including times J.H. was present in the

home. As to J.H.’s nexus to Meisel’s computer, Meisel asserted: the computer

was “logged in and turned on” at times J.H., but not Meisel, was at the home; J.H.

used the computer on June 10, 2014, between 5:39 p.m. and 6:13 p.m. and child

pornography was downloaded that same day from Ares at 2:21 p.m., 2:56 p.m.,

                                         -8-
4:00 p.m., 4:31 p.m., and 6:40 p.m.; and J.H. lived with Meisel at a prior

residence and Meisel owned the computer at that time as well. Finally, Meisel

proffered that he was introduced to Ares by J.H. and J.H. had “a high level of

technical knowledge about the operation of the Ares program.” 7

      S.H.

      According to Meisel, S.H., J.H.’s brother, would visit the home when

Thomas was asleep, Meisel was not present, and the computer was on and

accessible to others. Meisel also asserted S.H. knew the Wi-Fi password.

Finally, Meisel noted S.H. had lived in the home, although the proffer does not

indicate whether that was before or after Meisel moved into the home.

      W.R.

      Meisel proffered that his son, W.R., lived in the home for a brief period,

had regular access to the computer, and knew the Wi-Fi and computer passwords.

Meisel also asserted as follows: “[Meisel] found that [W.R.] had accessed two

child pornography sites on his computer. [W.R.] had regular access to the


      7
        In an effort to meet the nexus requirement set out in Holmes, 547 U.S. at
327, Meisel proffered that J.H. had engaged in a type of sexual misconduct that
made it more likely he was the individual associated with the child pornography
found on Meisel’s computer. See United States v. Montelongo, 420 F.3d 1169,
1174 (10th Cir. 2005) (noting this type of evidence “is often referred to as
‘reverse 404(b)’ evidence”). The district court excluded this evidence as both
irrelevant and unduly prejudicial. Meisel specifically disclaims any appellate
challenge to the district court’s treatment of reverse 404(b) evidence. That being
the case, this court does not consider any reverse 404(b) evidence in deciding this
appeal.

                                         -9-
computer and [Thomas’s] granddaughter saw [W.R.] using [Meisel’s] computer

when [W.R.] had been told by [Meisel] not to do so.”

      After a hearing on the government’s in-limine motion, 8 the district court

determined Meisel had not proffered sufficient evidence to establish the necessary

nexus between any of the proposed alternate perpetrators and the crimes with

which Meisel was charged. As to W.R., the district court outlined Meisel’s

argument and evidence, quoting from his pleadings. The district court noted that

“[d]uring the in limine hearing, [Meisel] admitted that no one ever saw [W.R.]

accessing child pornography on [Meisel’s] computer.” Thus, the district court

concluded, “[t]here simply is no evidence to sufficiently establish a nexus

between [W.R.’s] use of the computer and the crimes charged.” As to S.H., the

district court concluded no evidence connected S.H. to the computer and S.H.’s

mere presence in the home where the computer was located was not sufficient to


      8
          At the hearing, Meisel conceded the nexus evidence as to S.H. was weak:

      [T]he second individual is a little more tenuous, and that’s
      [S.H.]. . . .

             The connection with [S.H.] is . . . he lived in the house for a
      short period of time and would come over to the house and because
      the computer—Mr. Meisel would leave the computer up and running,
      and anybody could go in and use it, the evidence that we have there
      is—and the nexus evidence that we have there is that he was in the
      house and, therefore, had access to the computer.

            We, aside from that, we don’t have any evidence, direct
      evidence linking [S.H.] to the computer. . . .

                                         -10-
meet the test set out in Holmes. The district court described the evidence as to

J.H. as “[Meisel’s] most substantial showing,” but concluded even that evidence

was “tenuous at best.” Though it assumed all facts as proffered by Meisel were

true, the district court observed Meisel “attempted to link, by inference” J.H.’s

lawful activity (shopping on the Amazon.com website), of which Meisel was

aware, with secret illegal activity occurring at other times. In rejecting such

“unsupported speculation,” the district court observed as follows:

              During the in limine hearing, [Meisel] attempted to link, by
      inference, the fact that because [J.H.] admitted to being on the
      computer from 5:39pm–6:13pm using the website Amazon.com, he
      therefore must also have been the user that accessed and downloaded
      child pornography in the times prior to and after that Amazon.com
      search. However, . . . “a defendant still must show that his proffered
      evidence on the alleged perpetrator is sufficient . . . to show a nexus
      between the crime charged and the asserted ‘alternative perpetrator.’
      It is not sufficient for a defendant merely to offer up unsupported
      speculation that another person may have done the crime.” [United
      States v. McVeigh, 153 F.3d 1166, 1191 (10th Cir. 1998) (emphasis
      added).]

             Here, [Meisel’s] allegation that because [J.H.] used the
      computer for a lawful purpose between two times in which the
      computer was used to download child pornography, it must also be
      that [J.H.] was also the person responsible for accessing and
      downloading the child pornography. This notion is merely
      “unsupported speculation” and lacks a sufficient nexus to link [J.H.]
      to the crime charged. Furthermore, the evidence suggests that
      [Meisel] was present and monitoring [J.H.’s] use of the computer
      during this time.

      The district court made clear its ruling did not prevent Meisel from arguing

others (generally) had access or opportunity to access the computer and/or hard


                                         -11-
drive. That is, Meisel could adduce evidence that others had access to his

computer and/or hard drive to counter the government’s theory that Meisel was

responsible for the child pornography because he had exclusive use of the

computer. What Meisel could not argue, however, was that either W.R., S.H., or

J.H. was the perpetrator based on the mere fact he had some level of proximity to

the computer or hard drive. Immediately prior to the start of trial, the district

court again made this point clear, ruling as follows:

      [T]here is absolutely nothing wrong with bringing out during the
      course of the evidence, or even during your opening statements,
      assuming you have the evidence, that there were various people in
      and out of the house that had access to the computer but what I am
      not going to let you do is to argue that [W.R.], you know, there is
      reason to believe that he downloaded it.

             So, I mean, facts are facts and I’ll let you bring out any facts
      that you want to, it’s the inferences and the arguments from it so . . .
      if [W.R.] ends up on the stand, you can ask him, you know, about
      that or if [Meisel] testifies, as you indicated he was going to, you can
      ask him about who he knows had access.

             What I am not going to let you do is to argue to the jury that
      that’s evidence that they downloaded it.

C. The Trial

      1. Meisel’s Opening Statement

      During his opening statement, Meisel did not contest the presence of child

pornography on his external hard drive, but asserted he was not responsible for its

presence on his computer. In that regard, he noted some of the child pornography

was placed on the hard drive approximately a year before he purchased the laptop

                                         -12-
computer. 9 He further asserted that although the computer was password

protected, it was often left running. In such situations, Meisel claimed anybody

could access the computer. Furthermore, according to Meisel, numerous people

passed through the residence while he was absent and some of those people had

access to the computer. Finally, Meisel asserted his busy schedule as a volunteer

meant he spent much time away from the residence he shared with Thomas.

      2. The Government’s Case

      The government called four witnesses, three law enforcement officers and

Thomas, presenting a powerful (particularly forensic) case for Meisel’s guilt.

      Detective Wright testified she connected to the Ares network on May 9,

2014, and used special software to connect to a computer with hundreds of files

of suspected child pornography. 10 The username associated with the computer

      9
        To be clear, the parties at trial vigorously contested the date Meisel
purchased the external hard drive. Citing Meisel’s statements during his
interview with officers, the government contended Meisel owned the external
hard drive before he bought the computer at issue in this case and asked the jury
to infer Meisel placed the child pornography on the external hard drive via his
previous computer. Meisel, on the other hand, testified he purchased the external
hard drive shortly after he bought the computer at issue here.
      10
         Wright testified she would not have been able to observe the suspect files
unless the user was on “the internet with the [Ares] program running.” She made
clear on cross-examination, however, that the user did not have to be sitting at the
computer for the computer to make files available to other members of the Ares
network. Instead, all that was necessary was the user’s computer was running and
connected to the internet. Importantly, however, the computer forensic examiner
testified the Ares program on Meisel’s computer was not configured to start
automatically when the user signed on to the computer. Accordingly, for files to
                                                                      (continued...)

                                       -13-
was “UNI1.” Wright obtained the computer’s IP address, leading to a search

warrant for Meisel’s residence. Officers executed the search warrant on June 13,

2014. They seized Meisel’s laptop computer, which had a picture of a unicorn on

it. 11 The laptop was attached to an external hard drive. Wright conducted a

forensic preview of Meisel’s laptop. That preview verified the presence of child

pornography on Meisel’s computer.

      Thomas testified Meisel lived with her for about three years. W.R. lived

with them for one year, but had been gone from the residence for about one year

before the execution of the warrant. She had shared Meisel’s computer, but

bought her own computer after discovering, about one year before the events in

question, child pornography on Meisel’s computer. Meisel blamed W.R. for the

presence of child pornography. Thereafter, according to Thomas, Meisel “was the

only one that was ever on there because he wouldn’t let anybody use his




      10
        (...continued)
be shared from Meisel’s computer, the user would have to manually turn on file
sharing each time the computer was logged on.
      11
         As to this laptop computer, the parties presented the following stipulation
to the jury: (1) “[Meisel] purchased his laptop from Hometown Rent-to-Own.”;
(2) “The laptop was purchased September 14, 2011 and it was a used laptop at the
time it was purchased by [Meisel].”; and (3) “The reference on his computer to . .
. HT . . . refers to Hometown and reflects that Hometown purchased the computer
new and later set up operating systems on the computer under the account name . .
. HT . . . .”

                                       -14-
computer.” 12 On cross-examination, Thomas testified she slept during the day

about three times a week; there were frequent and regular visitors to the home she

shared with Meisel, including at least one of Thomas’s caretakers, J.H., who had a

key to the residence; and Meisel was usually away from the home during the day

doing volunteer work. 13 On redirect, Thomas testified she had never seen

      12
        When asked to provide examples of this restriction, Thomas testified as
follows:

             A. Well, like, his son wanted to get on it and he wouldn’t let
      him. He has had people over at the house ask if they could get on it
      for a minute to just check their e-mail or something, and he wouldn’t
      let them.

            Q. Would you ever have other individuals that would come
      over to the house and bring their own computer?

            A. Yes.

            Q. And why would they bring their own computer?

            A. Because they wanted to be able to get on the internet and,
      you know, they knew he wouldn’t let them use his.

            Q. All right. So these are folks using the internet but not
      using his computer?

            A. Right.
      13
       When asked whether she observed “inappropriate behavior by [Meisel]
toward young children” during the time they lived together, Thomas testified:

            A. Well, he—any time he seen a child he went up to them. He
      would do magic tricks to get their attention or he would just, uh, talk
      to them and stuff and I didn’t think anything of it at the time, I just
      thought, you know, he liked little kids, but he was always attracted to
                                                                        (continued...)

                                        -15-
anybody else using Meisel’s computer to look at child pornography and had never

awakened to find somebody using Meisel’s computer.

      Detective Kimberly Kleinsorge testified as to her interview with Meisel

during the execution of the search warrant. After Kleinsorge authenticated a

recording and transcript of her interview with Meisel, the recording of the

interview was played for the jury. Portions of the interview are set out above.

See supra at 3-5. To summarize the most salient points, Meisel admitted using

Ares, stated his Ares identifier “UNI1” was consistent with his computer user

profile and his love of unicorns, and stated as follows about the presence of child

pornography on his computer: “If it’s on there, and it’s recent, then it had to have

been me.” Kleinsorge testified she conducted a forensic examination of Thomas’s

computer and additional electronic devices found in Thomas’s residence. Nothing

relating to Ares or child pornography was found on any of those devices. There



      13
        (...continued)
      little kids.

            Q. And my question is, again, did you ever observe anything
      inappropriate by [Meisel]?

             A. No, I did not.

            Q. And while you lived with [Meisel] at the house did you
      ever see him, [Meisel], looking at child pornography on the
      computer?

             A. I didn’t see him do it.

                                          -16-
was no evidence of the use of “cleaner” or “erasing” programs as to Thomas’s

personal computer or other electronic devices found in Thomas’s home.

      Forensic examiner Michael Randolph testified as to his examination of

Meisel’s laptop computer. Highlights of that testimony are set out above. See

supra at 5-7. It is, however, worth emphasizing aspects of Randolph’s testimony.

Randolph testified via a “virtual tour” of Meisel’s computer. 14 Randolph testified

that of the three user profiles on Meisel’s computer, “Open,” “Linda,” and

“Unicorn,” only Meisel’s Unicorn profile contained child pornography. Within

Meisel’s user profile, Windows Media Player was one of the most commonly used

programs. Upon opening Windows Media Player, the user was presented with a

“list of the most recently opened files with this program.” Video files on that list

“contain[ed] names that appear to be child pornography related.” Randolph

testified nine videos recently watched in Windows Media Player involved

suspected child pornography and seven of the nine suspected videos were found

on the external hard drive. 15 Likewise, the list of most recently opened files

      14
        That is, as he testified, Randolph showed the jury relevant aspects of
Meisel’s computer on a video screen in the courtroom. For example, Randolph
could, inter alia, open the Windows Media Player and the jury could see for itself
that many of the recently watched videos involved child pornography and the
majority of those recently viewed videos were located on the external hard drive.
Thus, as to each important aspect of the forensic examination, the jury was able to
observe the actual set up and operation of Meisel’s computer and external hard
drive. That virtual tour is part of the record on appeal.
      15
           Windows Media Player was not the only program on Meisel’s computer
                                                                   (continued...)

                                        -17-
associated with the WordPad 16 program included material relating to “incest,

erotic preteen girls, [and] kiddie porn.”

      Randolph next testified about the Ares file-sharing program installed on

Meisel’s computer. He noted Ares, with a username “UNI1,” was installed on the

computer the same day Meisel purchased the laptop. Notably, the Ares program

on Meisel’s computer was customized (i.e., not set to run with default settings).

Instead, Ares was disabled from running automatically, downloads from Ares

were programmed to save in the “Test” folder on the external hard drive, and Ares

was programmed to share files only from the “Test” folder. The UNI1 Ares

profile had been used to search for files with terms associated with child

pornography. Files on the external hard drive that were manually set to be

available for sharing were descriptively titled in a way that made clear they were

child pornography. Thousands of images and over three hundred videos were

available to be shared from Meisel’s Ares profile, most with child-pornography-

related names and content. Notably, the “Test” folder and its subfolders had been


      15
         (...continued)
used to watch videos. For instance, Randolph also displayed for the jury Meisel’s
“DIVX player.” Unlike Windows Media Player, which likely came bundled as
part of the computer’s operating system, the DIVX player was specifically
downloaded onto Meisel’s computer. As was true of Windows Medial Player, the
list of recently opened files in the DIVX player contained names consistent with
child pornography. Some of those files were on the external hard drive.
      16
       Randolph testified that WordPad is a “Windows default program . . .
which is used to create and read and open text files.”

                                        -18-
set by the user to show “large” previews of the contents, such that an individual

even casually reviewing the contents of the “Test” folder would immediately see

the presence of child pornography. 17 The Ares program had been used as recently

as June 11, 2014, two days before the execution of the warrant.

      On cross-examination, Randolph agreed his examination revealed numerous

external devices had, at some undetermined time, been plugged into Meisel’s

computer, including an RCA MP3 device labeled “LINDA’S MP3,” and flash

drives labeled “[W.R.’s]” and “[J.H.’s].” Forensic evidence also established some

of the suspected child pornography found on the external hard drive originated

from a computer different from Meisel’s computer. Moreover, most of the

pornographic videos originated from “built-in administrator[]” accounts,

including two video files created on the afternoon of June 10, 2014.

      3. The Defense Case

      J.H. was Meisel’s first witness. J.H. was Thomas’s caregiver and, in that

capacity, had a key to the house Thomas shared with Meisel. J.H. testified that

during his time working for Thomas, numerous people were guests at the house

and confirmed Meisel would, “at times,” leave his computer running with a



      17
         Meisel specifically stated during his interview with Kleinsorge that he
“went on” the Ares program “a couple of weeks” before the execution of the
warrant. Randolph’s forensic examination verified there was activity on both the
computer and external hard drive in the weeks before the warrant execution and
that “all the activity on the external hard drive was within [the] test folder.”

                                        -19-
“slots” game playing while he was not present. He also testified he used Meisel’s

computer once, “just for a few minutes” right before Meisel’s arrest, to order

Frisbee golf discs. Although he was somewhat unsure, J.H. thought Meisel was

not at home when he bought the discs. He testified he called Meisel, who gave

him permission to use the computer. He was able to use the computer without the

password because the slots game was running on the computer. 18

      Meisel called Thomas’s granddaughter, Morgan Stasyszen to testify. In

response to a question regarding whether she had ever observed W.R. on Meisel’s

computer, Stasyszen responded as follows:

             A. No.

             Q. You didn’t?

             A. No.

             Q. Do you remember talking to our investigator, Anthony?

             A. Yes.

            Q. And do you remember telling him that you saw [W.R.] on
      the computer when he wasn’t supposed to be?

             A. I never seen him on it. He, apparently—he was—[Meisel]
      said that he had ways that he could figure out how, uh, [W.R.] was
      on it when we were gone.




      18
        Randolph testified his forensic examination confirmed that, on June 10,
2014, between 5:39 and 6:13 p.m., someone using Meisel’s computer searched for
“pro disc golf set” on Amazon.com.

                                        -20-
Stasyszen also testified she had never seen anybody else on Meisel’s computer

and that neither she nor her brother had been allowed to use Meisel’s computer

without him present in the home. 19

      Nicholas Eady and Susan Musson testified for Meisel. Both testified they

were familiar with Meisel because of Meisel’s active volunteer efforts and

thought highly of his character and work-ethic. Both conceded on cross-

examination they had little knowledge of Meisel’s home life and no knowledge of

his computer activities.

      Meisel testified on his own behalf. With regard to W.R. and the laptop,

Meisel testified as follows:

            Q. And with respect to your computer, did [W.R.] have access
      to your computer?

             A. Yes.

            Q. And how did—what form did that take? How did you
      make it available to him?

             A. Well, the computer was always in the living room, I never
      put it anywhere else and, originally, I let him have the password to it.

            Q. And was there some time that you realized that he was
      using the computer without your permission?



      19
          Anthony Scognamillo, an investigator for the defense, interviewed
Stasyszen prior to her testimony. Scognamillo testified Stasyszen never stated
she observed W.R. on Meisel’s computer. Instead, consistent with her testimony
at trial, she stated that Meisel speculated in her presence that W.R. had used his
computer when he was absent from the residence.

                                       -21-
      A. Yes.

      Q. And did you speak to him about it?

      A. I spoke to him about using the computer but he denied it
was him but I knew he was doing it.

      Q. And you heard the testimony from Ms. Thomas about
finding the references to child pornography sites?

      A. Yes.

      Q. Do you recall that incident?

      A. Yes, I do.

     Q. And could you describe that for the jury, how that occurred
and what you remember?

      A. She was up all night or something, I can’t remember
exactly how that came about there, but when I had got up in the
morning she mentioned to me and showed them to me.

      I looked at them, I tried to open a couple of them to see what
they were, because I saw the titles, and they wouldn’t open so I
figured they were mostly deleted files so I just went ahead and
deleted them. I opened one or two and there was just pictures that I
deleted right away.

      Q. And was [W.R.] living with you at the time or not?

      A. Um . . . .

      Q. As best you recall.

      A. Best I can recall, I believe he was.

      Q. Okay. And what action did you take after seeing those
items on the—or those references on the laptop?

      A. Well, most immediately was changed the password.

                                 -22-
             Q. And did you do anything with respect to the references to
      the child pornography on the—

             A. Oh, I just deleted them.

Meisel also asserted J.H.’s use of his computer had been undertaken without

permission. According to Meisel, he did not give J.H. permission to shop for golf

discs. Instead, he recalled J.H. had proceeded without permission, then simply

told Meisel he had done so after the fact. Meisel testified he thought he was

volunteering at the food bank during this incident.

      Meisel testified he had no idea how the child pornography got on the

external hard drive. He said he never searched for child pornography, had no

interest in child pornography, did not use Ares to obtain or share child

pornography, and was just as upset about the contents of the child pornography as

anyone else. Meisel testified he used the computer primarily for playing games.

He explained he worked at the food bank Monday, Wednesday, and Friday

mornings; met with the men’s group at his church on Saturday mornings; and

went to church on Sunday mornings. He testified he often left the computer on

and running when he was not at home, primarily because he was running slots,

gaming, or downloading a movie or music from Ares. He thus had no idea if

others used his computer when he was not home. Meisel “stumbled upon” child

pornography on one occasion when he downloaded what he thought was a music

video, but was instead a nude girl dancing. He stated he deleted the file


                                        -23-
immediately. Meisel testified he bought the external hard drive at a yard sale

approximately one week after he purchased the laptop. He stated he purchased

the external hard drive as a backup to the laptop computer because the hard drive

of his previous computer had crashed.

      On cross-examination, Meisel admitted he initially told officers he

purchased the external hard drive three and a half years ago, which dates to late

2010, not September 2011. He testified he was aware there were some folders on

the external hard drive when he purchased it, but asserted he did not view their

contents or delete them. He specifically remembered the existence of a “Test”

folder on the external hard drive, although he admitted he had never mentioned

this fact during his lengthy interview with Detective Kleinsorge. He also testified

any confusion during his interview with Kleinsorge flowed from the fact there

was a separate “Test” folder on the computer’s internal hard drive and it was that

“Test” folder, not the “Test” folder on the external hard drive, where W.R.

supposedly stored child pornography. Meisel admitted he had some computer

training, knew how to assign a drive letter, and actually assigned the external hard

drive as the H drive. Nevertheless, Meisel asserted he had never seen the “Test”

folder on the external hard drive listed as the shared file in Ares.




                                         -24-
      4. Jury Instructions

      Prior to the close of evidence, Meisel submitted a package of jury

instructions to the district court. His proposed instruction number four provided

as follows:

             The government must prove, beyond a reasonable doubt, that
      the offenses charged in this case were actually committed and that it
      was the defendant who committed them. Thus, the identification of
      the defendant as the person who committed the offenses charged is a
      necessary and important part of the government’s case.

             If, after examining all of the testimony and evidence in this
      case, you have a reasonable doubt as to the identity of the defendant
      as the person who committed the offenses charged, you must find the
      defendant not guilty.

This instruction is derived from Tenth Circuit Pattern Criminal Jury Instruction

1.29 (2011), a pattern instruction dealing with eyewitness identifications. The

district court declined to give the jury Meisel’s requested “identity” instruction.

      5. The Parties’ Closing Arguments

      The parties’ closing arguments made clear to the jury that this case boiled

down to one question: Was Meisel the person who placed child pornography on

the external hard drive attached to his computer?

      The government walked through the forensic evidence and argued, based on

that evidence and Meisel’s statements to Kleinsorge, Meisel purchased and

organized the hard drive before the creation of the “Test” folder. The government

then proceeded to “talk a little bit about the identity evidence.” The government


                                        -25-
asserted the evidence proved beyond a reasonable doubt that it was Meisel, not

W.R. or anybody else, who was responsible for downloading and sharing child

pornography via the “Test” folder on the external hard drive.

      In his closing, Meisel asserted that from the very beginning of the

investigation, officers were focused on him to the complete exclusion of other

suspects. He noted this was true even though he was not home and his computer

was running when officers came to execute the warrant. He also noted the person

that was home when officers came to execute the warrant, J.H., “admitted to the

investigators and testified [at trial], he went on the computer without logging in,

without using a password, because it was running, to order golf discs off of

Amazon on June 10th, 5:30 to 6:30, 2014.” Meisel then specifically argued the

evidence demonstrated W.R. previously placed child pornography on the

computer and that, in response, he removed that child pornography immediately

after Thomas brought it to his attention. Finally, Meisel reminded the jury

Randolph’s forensic evidence demonstrated there “were other devices, users

accessing that external hard drive.”

      In rebuttal, the government first focused on the power of the forensic

evidence as demonstrated to the jury through the virtual machine tour of Meisel’s

computer and external hard drive. The government then refuted Meisel’s

assertion investigators had focused exclusively on him, noting the evidence




                                        -26-
demonstrated investigators had looked into J.H. as a potential suspect. Finally,

the government finished by arguing as follows:

             Failed logins. Those are important. Why are they important?
      Because it means the computer was logged out. Think about that. If
      there is failed logins, it means the computer was logged out.

              And if it’s an alternative perpetrator, somebody else, why
      would you need to login? Just take the external drive. If you want
      the child porn, just take the external drive, because you know where
      it is; you’re the one that put it there.

             The context tells you there is no alternative perpetrator. It’s
      the defendant. That argument is a rattle: It’s meant to put a question
      out there. . . .

      6. The Verdict

      After roughly an hour and fifteen minutes of deliberation, the jury returned

unanimous guilty verdicts as to both the possession and distribution counts.

                                  III. ANALYSIS

A. Alternative Perpetrator Evidence

      1. Standard of Review

      Despite Meisel’s assertions to the contrary, this court’s precedents make

clear we review a “decision to admit [or deny] alternative perpetrator evidence

under an abuse of discretion standard.” United States v. Jordan, 485 F.3d 1214,

1218 (10th Cir. 2007). Under this standard, we will reverse only if “the district

court’s decision is arbitrary, capricious, or whimsical, or results in a manifestly

unreasonable judgment.” Id. (quotation omitted). The district court’s decision is


                                        -27-
entitled to deference because of “its first-hand ability to view the witnesses and

evidence and assess credibility and probative value.” Id. Thus, the district

court’s decision here to limit, to one degree or another, alternative perpetrator

evidence “will not be disturbed unless [this court] has a definite and firm

conviction that the [district] court made a clear error of judgment or exceeded the

bounds of permissible choice in the circumstances.” Id. (quotation omitted); see

also id. at 1222 (noting that even though this court might have made a different

choice in the first instance, the district court did not abuse its discretion in

refusing to admit alternative perpetrator evidence).

      Meisel concedes the district court allowed him to present to the jury any

evidence he had regarding other individuals’ access, potential or actual, to his

computer and external hard drive. Meisel’s Reply Br. at 4. He, nevertheless,

argues that having allowed him to introduce such evidence, the district court’s

real error was in not allowing him to utilize the term “alternative perpetrator” in

presenting his case to the jury. It is this issue, he asserts, that is one of law

subject to de novo review. The district court did, indeed, allow Meisel to admit

any and all evidence indicating others had access to, and use of, his computer and

external hard drive. The question then becomes whether that evidence, in the

context of the whole trial, was sufficient to allow Meisel to argue a particular

person was the person who placed the child pornography on his external hard

drive. In answering that question in the negative, the district court drew on its

                                          -28-
unique “first-hand ability to view the witnesses and evidence and assess

credibility and probative value.” Jordan, 485 F.3d at 1218. The district court

determined the proffered evidence was relevant and admissible to disprove the

government’s assertion Meisel was guilty because, at least in part, he had

exclusive use, possession, and control over the computer, but did not satisfy the

nexus requirements set out by both the Supreme Court and this court for arguing

either W.R., J.H., or S.H. was the actual guilty party. 20 Because the district court

engaged in exactly the kind of evidentiary balancing contemplated in Jordan, the

appropriate standard of review is abuse of discretion. Id. at 1222 (discussing the

Supreme Court’s decision in Holmes in addressing whether the district court

abused its discretion by precluding a defendant from raising an alternative

perpetrator defense). 21

      20
         In any event, as demonstrated by the parties’ closing arguments, and
borne out by the entirety of the trial transcript, it is abundantly clear the district
court, the parties, and the jury fully understood Meisel was asserting J.H. and/or
W.R. was responsible for the child pornography found on Meisel’s external hard
drive. This matter is discussed more fully below.
      21
         Meisel fails to cite any support for his contention that having admitted
evidence others had access to his computer, the district court was obligated to
allow him to argue any inference he would like from the evidence. This is most
surely because that contention is wrong. It is not remotely odd for a district court
to admit evidence for a limited purpose. See Fed. R. Evid. 105 (recognizing
district court’s power to admit evidence for a limited purpose). Thus, contrary to
Meisel’s arguments, the district court decision at issue here, the exclusion (at
least in theory) of evidence a particular person actually committed the crime with
which Meisel was charged, falls neatly within the evidentiary rubric and standards
set out in Jordan. It is for that same reason Meisel’s reliance on this court’s
                                                                        (continued...)

                                         -29-
      2. Legal Standard

      Because the legal framework applicable to alternative perpetrator evidence

is set out at length in Jordan, this court need do no more than summarize the law.

The Supreme Court has noted that special considerations arise when a court is

faced with a defense theory of an alternative perpetrator: “Evidence tending to

show the commission by another person of the crime charged may be introduced

by accused when it is inconsistent with, and raises a reasonable doubt of, his own

guilt; but frequently matters offered in evidence for this purpose are so remote

and lack such connection with the crime that they are excluded.” Holmes, 547

U.S. at 327 (quotation omitted); see also id. (holding that third-party guilt

evidence may also be excluded “where it does not sufficiently connect the other

person to the crime, as for example, where the evidence is speculative or remote,

or does not tend to prove or disprove a material fact in issue at the defendant’s

trial” (quotation omitted)). As this court explained in McVeigh:


      21
         (...continued)
decision in United States v. Ortiz, 804 F.2d 1161 (10th Cir. 1986), is unavailing.
In Ortiz, the question before this court was whether evidence properly admitted
during the government’s case was sufficient to place the defense of entrapment at
issue. Id. at 1163-65. Ortiz held this question was one of law for the court. Id.
at 1164 n.2. Here, however, the district court never admitted any of Meisel’s
evidence for the purpose of demonstrating an alternative perpetrator committed
the crime. Instead, the district court admitted such evidence for the limited
purpose of rebutting the government’s assertion Meisel maintained exclusive
control of the laptop computer and external hard drive. Thus, as was the case in
Jordan, 485 F.3d at 1218, 1221-22, the question at issue on appeal is whether the
district court abused its discretion in resolving this evidentiary issue.

                                        -30-
      Although there is no doubt that a defendant has a right to attempt to
      establish his innocence by showing that someone else did the crime,
      a defendant still must show that his proffered evidence on the alleged
      alternative perpetrator is sufficient, on its own or in combination
      with other evidence in the record, to show a nexus between the crime
      charged and the asserted “alternative perpetrator.” It is not sufficient
      for a defendant merely to offer up unsupported speculation that
      another person may have done the crime. Such speculative blaming
      intensifies the grave risk of jury confusion, and it invites the jury to
      render its findings based on emotion or prejudice.

153 F.3d at 1191 (citation omitted). Thus, a district court “may properly deny

admission of alternative perpetrator evidence that fails to establish, either on its

own or in combination with other evidence in the record, a non-speculative

‘nexus’ between the crime charged and the alleged perpetrator.” Jordan, 485

F.3d at 1219.

      3. Application

      Because the district court allowed Meisel to introduce all available

evidence regarding the use by, or proximity of, others to his computer and

external hard drive, we focus on that evidence to determine whether the court

abused its discretion in granting the government’s in-limine motion to exclude

such evidence when offered for the purpose of arguing an alternative perpetrator

committed the charged crime. Cf. id. at 1220 (considering both proffered and

admitted evidence in deciding whether the district court abused its discretion in

precluding an alternative perpetrator defense).




                                         -31-
             a. S.H.

       Trial testimony reveals S.H. visited the home Meisel shared with Thomas,

Thomas regularly slept during the day, and Meisel left his computer on with a

slots program running. Given this extremely limited evidence, we have no doubt

the district court acted within its discretion in refusing to admit the evidence for

the purpose of arguing S.H. is the person who committed the child pornography

crimes set out in the indictment. If mere proximity and potential access were

sufficient to argue an alternative perpetrator committed the crime, this court can

hardly envision a criminal trial that would not involve such a defense. But see id.

at 1220-22 (holding the district court did not abuse its discretion in limiting

alternative perpetrator evidence where the record demonstrated the supposed

alternative perpetrator was near the victim no more than ten minutes before the

crime). 22


       22
        Meisel notes his proffer asserted child pornography was found on S.H.’s
cell phone. This might be meaningful if the record or proffer demonstrated any
kind of connection between that child pornography and the child pornography
found on Meisel’s hard drive. Instead, as Meisel readily acknowledges, none of
the images found on S.H.’s cell phone matched images found on Meisel’s hard
drive. Furthermore, there is no evidence, forensic or otherwise, demonstrating a
relationship between the two sets of images (e.g., common source or thematic
consistency). Thus, the proffered evidence regarding S.H.’s cell phone appears to
be designed to do nothing more than trigger one of the primary concerns with
alternative perpetrator evidence— such evidence “would invite the jury to blame
absent, unrepresented individuals . . . for whom there often may be strong
underlying emotional responses.” United States v. McVeigh, 153 F.3d 1166,
1191-92 (10th Cir. 1998). Thus, this evidence is nothing more than prior bad acts
                                                                      (continued...)

                                         -32-
             b. W.R.

      Evidence implicating W.R. as the actual perpetrator of the crimes set out in

the indictment is similarly speculative and remote. No witness testified at trial to

having observed W.R. using Meisel’s computer. Instead, Thomas testified that

when she found child pornography on Meisel’s computer, Meisel blamed W.R.

Stasyszen testified that during her visits, she never observed anyone use the

computer, specifically including W.R. Instead, she noted Meisel asserted W.R.

was using his computer without permission. Stasyszen testified Meisel stated he

had an (unexplained) way of “figur[ing] out” whether W.R. was on the computer

while he was away from the home. Meisel testified W.R. had access to the

computer and knew the password, 23 but did not testify he saw W.R. actually using

      22
        (...continued)
evidence. As noted above, Meisel’s opening brief on appeal specifically declined
to challenge the district court’s exclusion of this type of evidence. See supra n.7.
      23
        Meisel asserts his trial testimony demonstrates W.R. had “permission” to
use the computer. This is not an entirely accurate assessment of the evidence.
Meisel testified as follows:

            Q. And with respect to your computer, did [W.R.] have access
      to your computer?

             A. Yes.

            Q. And how did—what form did that take? How did you
      make it available to him?

             A. Well, the computer was always in the living room, I never
      put it anywhere else and, originally, I let him have the password to it.
                                                                      (continued...)

                                        -33-
the computer. Again, without explaining how, Meisel simply asserted he knew

W.R. was using the computer without his permission. Finally, the government’s

forensic evidence indicated an external device bearing W.R.’s name, a flash drive

labeled “[W.R.’s]” was, at some point, attached to Meisel’s computer.

      At most, then, the evidence at trial demonstrated W.R. had used Meisel’s

laptop and Meisel had some, unexplained, method of determining W.R. viewed

child pornography while on the computer. This court need not determine whether

this exceedingly limited evidence would be sufficient to present an alternative

perpetrator defense to the jury involving W.R. because the evidence lacks any

meaningful temporal link to the crimes at issue at trial. That is, there is

absolutely no evidence indicating W.R. was anywhere near Meisel’s computer or

external hard drive for at least one year before the events at issue. Instead, the

uncontroverted evidence reveals that approximately one year before officers

initiated this investigation, Thomas asked W.R. to leave the residence. The

evidence further reveals that when, thereafter, Thomas found child pornography


      23
       (...continued)
             Q. And was there some time that you realized that he was
      using the computer without your permission?

             A. Yes.

             Q. And did you speak to him about it?

            A. I spoke to him about using the computer but he denied it
      was him but I knew he was doing it.

                                         -34-
on Meisel’s computer, Meisel blamed W.R. and said he removed all child

pornography from the computer at that time. The undisputed forensic evidence

demonstrates the Ares program was not set to download or share files

automatically, but that file sharing had to be manually initiated each time the

computer was logged on. Given all this, the district court most assuredly did not

abuse its discretion in determining Meisel had failed to demonstrate even the

remotest nexus between W.R. and the crimes at issue in Meisel’s trial. That is,

absent any evidence as to how W.R.’s use of Meisel’s computer over a year

before the events in question could have led to the presence of child pornography

on Meisel’s hard drive and/or could have led to the distribution of child

pornography from Meisel’s computer via Ares on May 9, 2014, the jury would

have to engage in “unsupported speculation” to determine W.R. was responsible

for the crimes with which Meisel was charged. McVeigh, 153 F.3d at 1191.

             c. J.H.

      Although this court has no difficulty concluding the district court did not

err in excluding alternative perpetrator evidence as to S.H. and W.R., the

exclusion of such evidence as to J.H. is an entirely different matter. In support of

his assertion J.H. was a viable alternative perpetrator for the crimes with which

Meisel was charged, Meisel adduced significant evidence of a connection (i.e.

both proximity and use) between J.H. and the computer. J.H. testified he and

Meisel lived together in Belle Plaine, Kansas, for up to three years before Meisel

                                        -35-
moved into Thomas’s home. Meisel bought the laptop computer during the period

he cohabited with J.H. J.H. continued to have access to the computer and hard

drive when Meisel moved into Thomas’s home. Thomas testified J.H. was her

caretaker for the entire time Meisel lived with her. In that capacity, J.H. had a

key to Thomas’s home and was present in the home approximately four days a

week. Thomas testified Meisel was often absent from the home doing volunteer

work and she often slept during the day. J.H. was present in the home during

these time periods.

      The evidence further reveals that Meisel occasionally left his computer

running while he was absent from the home and that, when this was the case,

anybody could access the computer without a password. In addition to potential

access, the record contains evidence J.H. actually used Meisel’s computer. The

forensic evidence reveal a flash drive linked to J.H.’s name had, at some point,

been plugged into the computer. J.H. accessed the computer on June 10, 2014,

just a few days before the warrant was executed. Finally, the record reveals that

on that same day, a day Meisel was possibly absent from the home, child

pornography was downloaded onto Meisel’s hard drive via Ares. That is, the

government’s forensic evidence indicates J.H. was on the computer shopping for

“golf discs” from 5:39 p.m. to 6:13 p.m., while Ares downloads of child

pornography occurred at 2:21 p.m., 2:56 p.m., 4:00 p.m., 4:31 p.m., and 6:40 p.m.




                                        -36-
      Thus, in summary, Meisel adduced evidence of J.H.’s consistent proximity

to the subject computer and external hard drive, actual access of the computer on

more than one occasion, and use of the computer in close temporal proximity to

the download of child pornography from the computer to the external hard drive

via Ares. Given all that, the assertion the district court erred in concluding

Meisel failed to establish a sufficient nexus between J.H. and the crimes at issue

here is not without serious persuasive force.

      In ruling as it did, the district court stated two justifications. First, it stated

Meisel’s “allegation that because [J.H.] used the computer for a lawful purpose

between two times in which the computer was used to download child

pornography, it must also be that [J.H.] was also the person responsible for

accessing and downloading the child pornography. This notion is merely

‘unsupported speculation’ and lacks a sufficient nexus to link [J.H.] to the crime

charged.” See supra at 11 (setting out entirety of the district court’s order). As

noted by Meisel, however, neither the government nor the district court has

identified case law holding that alternative perpetrator evidence is admissible

only if it conclusively demonstrates the guilt of the alleged alternative

perpetrator. Instead, such evidence is admissible if a defendant’s “proffered

evidence on the alleged alternative perpetrator . . . , on its own or in combination

with other evidence in the record, . . . show[s] a nexus between the crime charged

and the asserted ‘alternative perpetrator.’” McVeigh, 153 F.3d at 1191; see also

                                          -37-
Jordan, 485 F.3d at 1222 (holding test for admissibility of alternative perpetrator

evidence is not as onerous as the standard courts apply in determining whether

evidence is sufficient to support a conviction). Second, the district court

indicated “the evidence suggests that [Meisel] was present and monitoring

[J.H.’s] use of the computer during this time.” See supra at 11. The relevance of

the district court’s evidentiary determination about Meisel’s presence during

J.H.’s use of the computer is not altogether clear. There is no doubt a jury could

conclude Meisel was present during J.H.’s use of the computer on June 10, 2014.

Similarly, however, a jury could conclude Meisel was not present on that date at

the relevant time. J.H. testified Meisel was not present and he accessed the

computer only after calling Meisel to obtain the password. Meisel likewise

testified he was not present, but equivocated as to that fact on cross-examination.

In addressing the admissibility of alternative perpetrator evidence, however, the

strength of the government’s case is not generally a relevant concern. Holmes,

547 U.S. at 320 (noting a district court should not exclude alternative perpetrator

evidence merely because the district court thinks the government’s case is strong

and the defendant’s alternative perpetrator argument or evidence is weak); see

also Jordan, 485 F.3d at 1222 (noting the “Supreme Court has cautioned us to be

wary of per se rules excluding evidence of third-party guilt merely because the

prosecution’s case is strong enough” (quotation omitted)).




                                        -38-
      Ultimately, however, this court need not definitively decide whether the

district court abused its discretion in refusing to admit Meisel’s evidence for the

purpose of arguing J.H. was the one who committed the crimes at issue because,

even assuming the existence of such an error, the record demonstrates the error is

harmless beyond a reasonable doubt. United States v. Russian, 848 F.3d 1239,

1244 (10th Cir. 2017) (“For a constitutional error to be held harmless, the court

must be able to declare a belief that it was harmless beyond a reasonable doubt.”

(quotation omitted)). 24 In reaching this conclusion, we rely on two equally

important considerations.

      First, the record makes clear Meisel’s alternative perpetrator theory as to

J.H. (and for that matter, W.R.) was tried to the jury by acquiescence of the

parties. See Jordan, 485 F.3d at 1222-24 (concluding any assumed error in that

case was harmless because the alternate perpetrator defense was actually

presented to, and considered by, the jury). As noted above, during its final

pretrial hearing on the matter, the district court indicated Meisel could adduce any

evidence he had indicating others had access to his computer. See supra at 12.


      24
        We recognize it is highly unlikely the harmless error standard applicable
to constitutional errors governs in this case. See supra n.21 (discussing the nature
of the alleged error and concluding it is evidentiary, rather than constitutional, in
nature); Jordan, 485 F.3d at 1222 (applying the non-constitutional harmless error
standard to a district court’s decision to exclude alternative perpetrator evidence).
Because this court is firmly convinced the error at issue here is harmless even
under the heightened harmlessness standard applicable to constitutional errors, we
need not definitively resolve which standard actually applies.

                                         -39-
Meisel took full advantage of this ruling, adducing considerable evidence, as

cataloged above, regarding J.H.’s access to, and use of, his computer. At no point

did the government ask the district court to instruct the jury, pursuant to Fed. R.

Evid. 105, that such evidence was not admitted for the purpose of Meisel raising

an alternative perpetrator defense. Indeed, Meisel was allowed to inquire as to

potential failings in the government’s limited investigation into whether J.H. was

the person responsible for the child pornography found on Meisel’s computer.

During J.H.’s direct examination, he admitted that when he came to Thomas’s

house, whether for work or to socialize, he brought his own laptop computer. On

cross-examination, J.H. testified he gave Kleinsorge permission to examine his

computer and that she did not find any child pornography during that search.

Then, on redirect, Meisel adduced testimony from J.H. indicating the first time

Kleinsorge asked to review J.H.’s computer, no search took place because J.H.

could not remember the password. When asked whether the search that did

ultimately take place occurred “about a month and a half” after the initial request,

J.H. indicated he could not remember the exact time frame, but admitted it was

sufficiently long so as to allow him to take a “trip” in the interim. Finally, though

Meisel did not use the term alternate perpetrator during his closing argument, no

reasonable juror could think he was arguing anything else as to both W.R. and

J.H. Indeed, the government noted as much, arguing to the jury as follows:




                                         -40-
              And if it’s an alternative perpetrator, somebody else, why
      would you need to login? Just take the external drive. If you want
      the child porn, just take the external drive, because you know where
      it is; you’re the one that put it there.

             The context tells you there is no alternative perpetrator. It’s
      the defendant. That argument is a rattle: It’s meant to put a question
      out there. . . .

      Thus, the record makes clear Meisel’s theory J.H. was responsible for the

child pornography found on the external hard drive was presented to, and rejected

by, the jury. See Jordan, 485 F.3d at 1223 (“[M]uch of Jordan’s alternative

perpetrator theory banks on already admitted evidence . . . . Jordan[] . . . also had

the opportunity to raise all the other evidence that points towards [his] innocence.

. . . Accordingly, the district court’s preclusion of the proffer did not prevent

Jordan from offering an alternative perpetrator defense. Instead, the jury chose to

disbelieve the theory.” (quotations, citation, and alteration omitted)).

      Second, despite Meisel’s protestations to the contrary, the evidence of his

guilt is overwhelming. See United States v. Glass, 128 F.3d 1398, 1403 (10th Cir.

1997) (“To hold an error of constitutional dimension harmless, we must conclude

the properly admitted evidence of guilt is so overwhelming, and the prejudicial

effect of the [purported error] is so insignificant by comparison, that it is clear

beyond a reasonable doubt that the improper use of the admission was harmless

error.” (quotation omitted)). But see supra n.24 (noting this court is employing

the harmlessness standard applicable to constitutional errors out of a mere


                                          -41-
abundance of caution). Unrebutted and/or unexplained forensic evidence

demonstrates Meisel’s assertion he was unaware of the vast collection of child

pornography stored on his external hard drive is, at the very best, implausible.

The evidence demonstrated child pornography found on the external hard drive

was frequently played on the Windows Media Player and on the DIVX player, a

program specially installed on Meisel’s laptop. This undisputed evidence

rendered entirely incredible Meisel’s attempt to compartmentalize the child

pornography onto a portion of the external hard drive (i.e., the “Test” folder) of

which he claimed to be unaware. That is, there was a consistent interaction

between Meisel’s computer and the child pornography on the external hard drive

and Meisel did not, and could not credibly, argue he was generally unaware of the

contents of the computer and its operating system and programs. Nor does the

trial evidence plausibly support the defense theory that Meisel’s computer was

consistently left on so that others could access it, thereby accounting for the huge

volume of child pornography found on the external hard drive. 25 Instead, the


      25
        The evidence demonstrates Ares was installed on Meisel’s computer on
the very first day it was purchased and was consistently employed to acquire
and/or distribute child pornography. The computer was frequently logged off and
on, averaging about three times a day, rendering remarkably unlikely Meisel’s
assertion his computer was consistently running in open-access mode when he
was away from home. The computer and its programs were firmly linked via the
forensic evidence to the H drive, the “Test” folder, and subfolders categorized by
specific content. Child pornography downloaded via Ares was consistently sorted
into the “Test” folder’s highly specific subfolders. Child pornography found on
                                                                      (continued...)

                                        -42-
evidence overwhelmingly proved that after Thomas found child pornography on

Meisel’s computer, Meisel took extraordinary efforts to limit access to his

computer. For that very reason, Meisel stated during his interview that if child

pornography was found on the computer, he was the responsible party. Although

Meisel attempted to explain away that statement at trial with the theory he was

only accepting ultimate responsibility for the computer, rather than admitting

guilt, the evidence to the contrary is simply overwhelming.

      Because, despite the district court’s evidentiary ruling, the issue of J.H.’s

potential as an alternate perpetrator was tried to the jury, and because the

evidence of Meisel’s guilt was overwhelming, any assumed error on the part of

the district court was harmless beyond a reasonable doubt.

B. Identity Instruction

      1. Standard of Review

      Meisel asserts he preserved for appellate review the propriety of the district

court’s refusal to give his requested “identity instruction.” The government, on

the other hand, asserts Meisel abandoned the issue when he failed to raise the


      25
        (...continued)
the hard drive was also listed in the history of programs on the computer like
Windows Media Player, DIVX, and Adobe Reader. Given that the H drive was
specifically assigned to the external hard drive, Meisel’s assertion he lacked all
familiarity with the H drive’s “Test” folder is implausible. Finally, Meisel’s
assertion he deleted child pornography (supposedly placed there by WR) from a
different “Test” folder, this one located on the computer’s own hard drive, was
not supported by any forensic evidence.

                                         -43-
issue at the final jury-instruction conference the morning the case was submitted

to the jury. This court need not resolve the preservation issue because Meisel is

not entitled to relief even if the propriety of the district court’s refusal to give the

identity instruction is reviewed for abuse of discretion.

      This court “review[s] instructions as a whole to determine whether they

accurately informed the jury of the governing law.” United States v. Bowling,

619 F.3d 1175, 1183 (10th Cir. 2010) (quotation omitted). “A theory of defense

instruction is required only if, without the instruction, the district court’s

instructions were erroneous or inadequate.” Id. (alteration and quotation

omitted). “While a defendant is entitled to an instruction on his theory of defense

where some evidence and the law supports the theory, such an instruction is not

required if it would simply give the jury a clearer understanding of the issues.”

Id. at 1183-84 (quotation omitted). We “review a district court . . . refusal to give

a requested instruction under this standard for an abuse of discretion.” Id.

at 1184.

      We begin by noting Meisel did not request an identity instruction (i.e., an

instruction based on this court’s pattern jury instruction on eyewitness

identification) for any of the reasons normally relevant to the giving of a

cautionary instruction regarding eyewitness identifications. See United States v.

McGuire, 200 F.3d 668, 676 (10th Cir. 1999) (summarizing considerations

relevant to determining whether a district court abused its discretion in refusing to

                                          -44-
instruct the jury as to “special reliability concerns with eyewitness

identifications”). Instead, he asked for a modified version of that instruction to

make clear his defense at trial was that someone other than himself placed the

child pornography on his external hard drive and subsequently caused the

distribution of that material via the Ares file-sharing program. Accordingly,

Meisel’s requested identity instruction was really a theory-of-defense instruction,

not an instruction as to potential reliability issues regarding an eyewitness to the

child pornography charges. So considered, we conclude the district court did not

abuse its discretion in determining the existing instructions made clear to the jury

Meisel was legally responsible for the charges only if he, personally, knowingly

possessed and distributed the child pornography found on his computer.

      Instruction Eleven, especially when coupled with Instructions Eighteen and

Twenty-One, made clear to the jury Meisel was not criminally responsible if some

other person placed the child pornography on his external hard drive and/or

caused his computer to distribute that child pornography. Instruction Eleven told

the jury “a defendant is presumed by law to be innocent. The Government has the

burden of proving a defendant guilty beyond a reasonable doubt. . . . If . . . you

think there is a real possibility that he is not guilty of that crime, you must give

him the benefit of the doubt and find him not guilty of that crime.” Instruction

Twenty-One indicated that “only the defendant is on trial here. You are not to




                                          -45-
return a verdict as to the guilt of any person or persons except the defendant.”

Likewise, Instruction Eighteen specified as follows:

             In the situation where the object is found in a place such as a
      room or car occupied by more than one person, you may not infer
      control over the object based solely on joint occupancy. Mere
      control over the place in which the object is found is not sufficient to
      establish constructive possession. Instead, in this situation, the
      Government must prove some connection between the particular
      defendant and the object.

             In addition, momentary or transitory control of an object is not
      possession. You should not find the defendant possessed the object
      if he possessed it only momentarily or did not know that he
      possessed it.

This particular instruction, which was requested by Meisel, makes clear that the

jury could not convict simply because the child pornography was found on his

external hard drive. Instead, the government bore the burden of proving beyond a

reasonable doubt that Meisel, not anyone else, knowingly possessed and

distributed child pornography. This specification was further emphasized by

Instructions Thirteen, Fourteen, and Seventeen, all of which addressed the

“knowing” element associated with the crimes charged. These instructions made

clear the jury could convict Meisel only if it found Meisel “knowingly” (i.e.,

“realized what he was doing and was aware of the nature of his conduct and did

not act through ignorance, mistake, or accident”) possessed and distributed child

pornography. Instruction Sixteen, the instruction dealing with distribution

emphasized Meisel could only be guilty of the distribution count if the


                                        -46-
government proved beyond a reasonable doubt that Meisel “knowingly makes

images available on a peer-to-peer file sharing network” and “knowingly allowed

others access to his Ares Shared Folder.”

      Viewing the instructions as a whole, we cannot conclude the district court

abused its discretion in refusing to give the jury Meisel’s proposed identification

instruction. Although it is certainly possible Meisel’s proposed theory-of-defense

instruction could have given the jury a “clearer understanding of the issues,” the

district court’s jury instructions were not erroneous or inadequate as given. See

Bowling, 619 F.3d at 1183-84. And although this court, if it were deciding the

issue in the first instance, might well have instructed the jury consistent with

Meisel’s theory-of-defense instruction, the governing standard of review is a

deferential one. See Jordan, 485 F.3d at 1218 (holding that under the abuse-of-

discretion standard, this court will reverse only if “the district court’s decision is

arbitrary, capricious, or whimsical, or results in a manifestly unreasonable

judgment” (quotation omitted)). The district court did not abuse its discretion.

                                 IV. CONCLUSION

      For those reasons set out above, the judgment of conviction entered by the

United States District Court for the District of Kansas is hereby AFFIRMED.




                                          -47-
