                                                                    NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 14-3275
                                   ________________

                            UNITED STATES OF AMERICA

                                             v.

                              LAWRENCE BLEVINS, JR.,

                                                        Appellant
                                   ________________

                      Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                     (D.C. Criminal Action No. 1-12-cr-00252-001)
                    District Judge: Honorable Christopher C. Conner
                                   ________________

                       Submitted under Third Circuit LAR 34.1(a)
                                   on March 6, 2015

                Before: SHWARTZ, SCIRICA and ROTH, Circuit Judges

                              (Opinion filed June 15, 2015)


                                   ________________

                                       OPINION*
                                   ________________

ROTH, Circuit Judge



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Lawrence Blevins was convicted of receipt of child pornography under both

18 U.S.C. §§ 2252(a)(2) and 2252A(a)(2). He appeals his convictions on the grounds

that prejudicial evidence was admitted against him in violation of Federal Rules of

Evidence 404(b) and 403 and that the two convictions stem from identical conduct, thus,

violating his double jeopardy rights. Because the redacted video evidence was highly

probative to discredit his defense that the child pornography images were not his, we will

affirm the evidentiary rulings and judgment of conviction under 18 U.S.C. § 2252(a)(2).

The government concedes the double jeopardy issue; we will therefore reverse the

judgment of conviction under 18 U.S.C. § 2252A(a)(2) and remand the judgment of

sentencing to the District Court to vacate the sentence imposed for that conviction..

I.     Background

       On December 29, 2011, pursuant to a search warrant, police seized from Blevins’

bedroom his desktop computer, his laptop computer, and two external hard drives

containing child pornography. The police had obtained the search warrant in connection

with an investigation of the use of peer-to-peer file sharing software called FrostWire to

distribute child pornography. A forensic examination of Blevins’ computer equipment

revealed that FrostWire was installed and that the computer was used in conjunction with

the two external hard drives that contained the same images.

       The computer equipment also contained explicit videos of women in various

stages of undress. The videos and accompanying testimony demonstrated that they were

secret recordings made by Blevins in the bathroom of the house where he rented an

upstairs bedroom. The house was owned by Michael Cramer; one of the videos captured

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images of his adult daughter, Marlea, while another—a splicing of two separate videos—

captured Cramer’s fiancée, Brenda Blair-Long. While Blevins denied intentionally

creating the Marlea Cramer video or intentionally downloading it to his computer, he

appears in the video, setting up and retrieving the camera. Blevins also denied making

the video of Brenda Blair-Long and denied knowing who spliced the two videos together;

however, Blevins’ brand of cigarettes appeared in the final spliced video. The Marlea

Cramer video was found in nested layers of “New Folders” on the same hard drive as

nearly half a million child pornography images and 517 child pornography videos. The

Brenda Blair-Long video was found on both external hard drives within a series of “New

Folders” that contained child pornography.

       The government sought to play the videos for the jury to demonstrate that they

were the type of videos that Blevins would want to keep hidden. The government

proffered that the commingled file locations for different items that Blevins sought to

keep hidden demonstrated knowledge and lack of accident regarding the child

pornography. Blevins filed a pretrial motion in limine to preclude the use of video

evidence under Rule 404(b) as prior evidence of bad acts used to show a propensity for

those bad acts. Because the District Court found that the government’s use of the video

evidence required no inference about Blevins’ character, the court ruled that snapshots or

freeze frames of the videos would be admitted subject to a limiting instruction,.

       At trial, Blevins renewed his objection to the videos. The government made clear

that it intended to show videos in which all nudity was redacted. Despite the court’s prior

order limiting the evidence to snapshots or freeze frames, the government proposed to

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show videos in which all nudity was redacted. Blevins’ renewed objection went to the

earlier ruling on propensity, not to the redactions. The court permitted the use of the

redacted videos.

       Blevins’ defense centered on his claim that the images were not his, that he

purchased the computers at a flea market and noticed the child pornography later. He

claimed the illicit images were mixed in with the music files; when he found them; he

segregated and then deleted them. Blevins also testified that he used Frostwire only for

music and that the pornography downloads were performed by someone else without his

permission. He added that he often left his room unlocked. The government presented

several witnesses who stated that Blevins was very private and kept his door locked at all

times. Two of those witnesses were Marlea Cramer and Blair-Long. In closing

arguments, the government emphasized the video evidence, but clearly explained that it

was only introduced to demonstrate Blevins’ exclusive control over his computer

equipment and knowledge of the contents.

       After the verdict, Blevins moved for a new trial, raising both the evidentiary and

double jeopardy issues. The District Court denied the motion. Blevins appealed.

II.    Discussion

       A.     Admission of the Video Evidence Was Permissible.1




1
 We review de novo whether evidence falls within the scope of Rule 404(b). United
States v. Green, 617 F.3d 233, 239 (3d Cir. 2010). Other evidentiary questions, such as
Rule 403 determinations that evidence is more probative than prejudicial, are reviewed
for abuse of discretion. Id.
                                             4
       Rule 404(b) precludes evidence of “crimes, wrongs, or other acts” “to prove a

person’s character in order to show that on a particular occasion the person acted in

accordance with the character.” To be admissible under Rule 404(b), the evidence must

have a proper evidentiary purpose and comply with the standard limitations under Rule

403.2 “A proper purpose is one that is ‘probative of a material issue other than

character.’”3

       The government offered the video evidence to demonstrate knowledge and lack of

accident in the contents of the file folders. Knowledge and lack of accident are expressly

characterized in the Rule itself as proper evidentiary purposes.4 The mere fact, however,

that evidence reflects badly on a defendant does not render it inadmissible under Rule

404(b).5

       Rule 403 prohibits “relevant evidence if its probative value is substantially

outweighed by a danger of . . . unfair prejudice.”6 It is clear that playing the videos to the

jury was highly prejudicial. In ruling on the motion in limine, however, the District Court

held that the videos were highly probative on two of the government’s points: 1) that

Blevins knew the contents of his “New Folder” tree and 2) that there was limited outside

access to his computer. The secretive nature of the home videos carries a strong

inference of Blevins’ knowledge. Blevins is likely to keep close control over electronic


2
  United States v. Bergrin, 682 F.3d 261, 278 (3d Cir. 2012).
3
  United States v. Green, 617 F.3d 233, 250 (3d Cir. 2010) (quoting Huddleston v. United
States, 485 U.S. 681, 686 (1988)).
4
  Fed. R. Evid. 404(b).
5
  Gov’t of Virgin Islands v. Harris, 938 F.2d 401, 419 (3d Cir. 1991).
6
  Fed. R. Evid. 403.
                                              5
devices where such explicit home videos are hidden. Further, the videos themselves

contained evidence that Blevins created them: he appeared in one and his brand of

cigarettes appeared in the other.

         These videos were thus both highly prejudicial and highly probative. Measures

were taken to reduce the prejudice, and the court gave a limiting instruction to the jury.

Therefore, we conclude that the District Court did not abuse its discretion by finding that

the prejudice did not substantially outweigh the probative value.

         B.     Blevins’ Right Against Duplicative Punishment Was Violated.

         Although charges were brought against Blevins under two different statutes,

18 U.S.C. §§ 2252(a)(2) and 2252A(a)(2), the underlying conduct for both offenses was

the same. The District Court imposed concurrent sentences and supervised release of

identical duration, but it also imposed an additional fine, and special assessment.

Therefore, the second conviction increased his punishment.7 The government has

conceded that the second conviction violates Blevins’ Fifth Amendment right against

double jeopardy and we agree. We will reverse the conviction under 18 U.S.C. §

2252A(a)(2).

III.     Conclusion

         For the reasons stated above, we will affirm the judgment of conviction under

18 U.S.C. § 2252(a)(2), reverse the judgment of conviction under 18 U.S.C. §

2252A(a)(2), and remand the judgment of sentence on that conviction to the District

Court to vacate the sentence imposed..

7
    See United States v. Miller, 527 F.3d 54, 72-74 (3d Cir. 2008) .
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