                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                    No. 12-50183
            Plaintiff-Appellee,
                                            D.C. No.
               v.                     3:10-cr-05096-JAH-1

DAVID MCELMURRY,
        Defendant-Appellant.                  OPINION


      Appeal from the United States District Court
         for the Southern District of California
       John A. Houston, District Judge, Presiding

                 Argued and Submitted
         October 7, 2013—Pasadena, California

                    Filed January 26, 2015

    Before: Stephen Reinhardt, Andrew J. Kleinfeld,
         and Morgan Christen, Circuit Judges.

              Opinion by Judge Kleinfeld;
Partial Concurrence and Partial Dissent by Judge Christen
2               UNITED STATES V. MCELMURRY

                           SUMMARY*


                          Criminal Law

    The panel vacated a criminal judgment and remanded in
a case in which the defendant was convicted of possessing
child pornography, and distributing it through an online peer-
to-peer file-sharing network.

    The panel rejected the defendant’s contention that
convicting him of possessing and distributing the same
images amounted to double jeopardy. The panel explained
that neither possession nor distribution of child pornography
is necessarily a lesser-included offense of the other.

    The panel held that, as the defendant concedes, conduct
such as his constitutes distribution under United States v.
Budziak, 697 F.3d 1105 (9th Cir. 2012), which held that
maintaining child pornography in a shared folder, knowing
that doing so will enable others to download it, if another
person does download it, amounts to sufficient evidence to
sustain a conviction for distribution.

    The panel rejected the government’s contention that the
defendant waived his Fed. R. Evid. 403 objection to the
district court’s admission pursuant to Fed. R. Evid. 404(b) of
interview statements he made in connection with a prior state
law child-pornography conviction, and in a letter written to an
inmate a few months before the present crime was charged.
The panel explained that a trial objection to what the court

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
              UNITED STATES V. MCELMURRY                       3

had already definitively ruled unobjectionable, on the
defendant’s in limine motion, would have amounted to taking
exception to an evidentiary ruling already made, which Fed.
R. Evid. 103 says is unnecessary.

    The panel explained that because remand is necessary
under Rule 403, it did not need to decide whether the
government correctly invoked Rule 404(b). The panel held
that United States v. Curtin, 489 F.3d 935 (9th Cir. 2007) (en
banc), requires reversal in this case under Rule 403 because
the record, briefs and oral argument establish that the district
court admitted the statements and the letter without reading
or listening to the material. The panel wrote that the
government has not claimed that the error was harmless,
much less borne its burden of proof of harmlessness.

     Judge Christen concurred in part and dissented in part.
She concurred in the portions of the majority opinion
regarding double jeopardy and sufficiency of evidence to
support the distribution conviction, as well as the majority’s
conclusion that the district court erred by making a Rule 403
determination with respect to the interview statements
without reviewing them. She dissented from the majority’s
conclusion that the district court made a similar error with
respect to the letter. She wrote that because the district
court’s pretrial ruling did not definitively address the specific
letter exhibit that the government ultimately sought to
introduce and because the defendant did not object at trial
under Rule 403, she would review for plain error the district
court’s determination that the probative value of the letter
outweighed its prejudicial effect, and would affirm the district
court’s ruling.
4            UNITED STATES V. MCELMURRY

                       COUNSEL

John Balazs, Sacramento, California, for Defendant-
Appellant.

Alessandra P. Serano, Assistant United States Attorney, San
Diego, California, for Plaintiff-Appellee.


                        OPINION

KLEINFELD, Senior Circuit Judge:

    We address double jeopardy and evidentiary issues in a
child pornography case.

                          Facts

    FBI agents used the identity of a member of an online
file-sharing group, “GigaTribe,” to find possessors and
sharers of child pornography. They downloaded a large
number of such images and videos from a GigaTribe user
who called himself “Teentrade.” They tracked the IP address
of Teentrade to a house where McElmurry’s mother and
grandmother lived and which McElmurry frequented. After
getting a search warrant, they waited until they saw that
Teentrade was online, and knocked on the door. They
pretended there was a package McElmurry had to sign for, to
draw him away from the computers in hopes that he would
not have time to delete or encrypt the data. Once McElmurry
got to the door, the agents executed the search warrant.

    The FBI agents located and seized three computers, two
of which were running, but could not get into the computers
                 UNITED STATES V. MCELMURRY                              5

because they did not have the passwords. The agents were
still able to connect to Teentrade online from their own
devices. To figure out which computer, if any, was
associated with Teentrade, they disconnected one computer
at a time. When the agents unplugged the desktop computer,
the downloads from Teentrade immediately stopped. After
forensic analysis, the FBI agents still could not access data on
the desktop because it was entirely encrypted. But based on
what appeared to be McElmurry’s soft drink by the desktop
computer, the extensive downloads from Teentrade, the
online presence of Teentrade at the moment before they
knocked, and the name “Super Dave” on the desktop screen
saver (McElmurry’s first name is David), they inferred that
Teentrade was McElmurry and that the desktop computer had
child pornography on it.

   McElmurry was charged in two counts, one for
possessing child pornography,1 one for distributing it.2


  1
    18 U.S.C. § 2252(a)(4)(B), applies to any person who, “knowingly
possesses 1 or more books, magazines, periodicals, films, video tapes, or
other matter which contain any visual depiction that has been mailed, or
has been shipped or transported in interstate or foreign commerce, or
which was produced using materials which have been mailed or so
shipped or transported, by any means including by computer, if—(i) the
producing of such visual depiction involves the use of a minor engaging
in sexually explicit conduct; and (ii) such visual depiction is of such
conduct.” (emphasis added).
      2
     18 U.S.C. § 2252(a)(2), applies to any person who “knowingly
receives, or distributes, any visual depiction that has been mailed, or has
been shipped or transported in interstate or foreign commerce, or which
contains materials which have been mailed or so shipped or transported,
by any means including by computer, or knowingly reproduces any visual
depiction for distribution in interstate or foreign commerce or through the
mails, if—(A) the producing of such visual depiction involves the use of
6               UNITED STATES V. MCELMURRY

Having been convicted in a jury trial, he appeals on the
grounds discussed below. We have jurisdiction over this
direct appeal under 28 U.S.C. § 1291.

                               Analysis

                       I. Double Jeopardy

    McElmurry argues that convicting him of two crimes,
possessing child pornography and also distributing it,
amounts to double jeopardy. His theory is that both counts
involved the same images, and that possession is a lesser-
included offense of distribution.

    Since the double jeopardy issue was not raised in district
court, we review for plain error,3 but the standard of review
does not in this case affect the analysis. We have controlling
precedents in which we have concluded that convictions for
both receiving and possessing such images did indeed violate
the Double Jeopardy Clause, despite applicability of the plain
error standard, so the standard does not save the convictions.4
And because double jeopardy would require at least one



a minor engaging in sexually explicit conduct; and (B) such visual
depiction is of such conduct.” (emphasis added).
    3
    See United States v. Davenport, 519 F.3d 940, 943 (9th Cir. 2008)
(“Although we normally review de novo claims of double jeopardy
violations, we review issues, such as the present one, not properly raised
before the district court for plain error.”) (internal citation omitted).
    4
   See United States v. Schales, 546 F.3d 965, 977–81 (9th Cir. 2008);
United States v. Giberson, 527 F.3d 882, 891 (9th Cir. 2008); Davenport,
519 F.3d at 943–48.
                 UNITED STATES V. MCELMURRY                           7

conviction to be vacated on remand, without the possibility of
retrial,5 we address this issue first.

    McElmurry relies on three decisions6 in which we have
held that separate convictions and sentencing for receiving
and possessing do indeed violate the Double Jeopardy Clause
where the convictions are predicated on the same images.
The theory of all these cases is that under the Blockburger v.
United States “same elements” test,7 receiving necessarily
includes possessing. As we stated in Davenport, “[i]t is
impossible to ‘receive’ something without, at least at the very
instant of ‘receipt,’ also ‘possessing’ it.”8 We therefore have
concluded that possessing is a lesser-included offense of
receiving child pornography.

    This case is distinguishable because McElmurry’s
convictions are for possessing and distributing, not possessing
and receiving. The question this case raises is whether the
distinction makes a difference. We conclude that it does.

   The Blockburger test, “where the same act or transaction
constitutes a violation of two distinct statutory provisions, . . .


  5
    See Schales, 546 F.3d at 980 (“[T]he only remedy consistent with the
congressional intent is for the [d]istrict [c]ourt, where the sentencing
responsibility resides, to exercise its discretion to vacate one of the
underlying convictions.”) (quoting Ball v. United States, 470 U.S. 856,
864 (1985)) (alteration in original).
     6
    See Schales, 546 F.3d at 977–81; Giberson, 527 F.3d at 891;
Davenport, 519 F.3d at 943–48.
 7
     See Blockburger v. United States, 284 U.S. 299, 304 (1932).
 8
     Davenport, 519 F.3d at 943.
8                    UNITED STATES V. MCELMURRY

is whether each provision requires proof of a fact which the
other does not.”9 Where the charges are receiving and
possessing, the statutes do not each require such proof,
because receiving means taking into one’s possession, and
therefore implies possession at least at the moment of
receipt.10 Not so for distribution. Suppose Tom, Dick and
Harry are involved. Tom asks Dick for a prohibited image.
Dick says, “I don’t have it, but Harry does, and I’ll ask him
to send it to you.” Dick does not possess,11 but nevertheless
distributes, because he brought about Harry’s distribution.
One statute says “knowingly possesses,”12 the other says
“knowingly . . . distributes,”13 and either crime can be
accomplished without the other. Each crime requires proof
of a fact that the other does not, possession for one and
distribution for the other. A possessor of prohibited images



    9
        Blockburger, 284 U.S. at 304.
    10
     See Davenport, 519 F.3d at 943. See also United States v. Romm,
455 F.3d 990, 1001 (9th Cir. 2006) (“Generally, federal statutes
criminalizing the receipt of contraband require a ‘knowing acceptance or
taking of possession’ of the prohibited item.”); United States v.
Mohrbacher, 182 F.3d 1041, 1048 (9th Cir. 1999) (defining “receive” as
“[t]o take into one’s hand, or into one’s possession”) (alteration in
original).
        11
       See Romm, 455 F.3d at 999 (defining “possession” as used in
18 U.S.C. § 2252A, a statute materially identical to the one at issue here,
as “[t]he fact of having or holding property in one’s power; the exercise
of dominion over property”) (alteration in original) (quoting BLACK’S
LAW DICTIONARY 1183 (7th ed. 1999)).
    12
         18 U.S.C. § 2252(a)(4)(B).
    13
         18 U.S.C. § 2252(a)(2).
                  UNITED STATES V. MCELMURRY                             9

may choose not to share,14 and a distributor, as in the Tom,
Dick and Harry hypothetical, need not himself possess
them.15 For another sort of contraband, narcotics, we held in
Mincoff that possession is not an element of distribution,16
and the same principle applies to the type of contraband at
issue here. One need not even have constructive possession
to be a distributor. Dick, in the hypothetical, does not need
“dominion and control”17 over Harry’s image to arrange for
Harry’s distribution to Tom. Neither possession nor
distribution of child pornography is necessarily a lesser-
included offense of the other. Two of our sister circuits have
reached the same conclusion,18 and none, to our knowledge,
disagree.


 14
       See Romm, 455 F.3d at 999.
  15
     Our precedents establish that “distribution” is defined broadly to
encompass “participation in the transaction viewed as a whole.” United
States v. Ahumada-Avalos, 875 F.2d 681, 683 (9th Cir. 1989) (holding
defendant participated in distribution of cocaine because he “arranged for
delivery of the drugs, made phone calls negotiating the price, amount,
place of delivery, and payment, and traveled in furtherance of the crime”).
  16
     See United States v. Mincoff, 574 F.3d 1186, 1198 (9th Cir. 2009)
(“We adopt the rule articulated by our sister circuits that a narcotics
distribution charge may be established without proof of possession.”).
  17
     See United States v. Terry, 911 F.2d 272, 278 (9th Cir. 1990) (“To
prove constructive possession, the government must prove a sufficient
connection between the defendant and the contraband to support the
inference that the defendant exercised dominion and control over the
substance.”) (internal quotation marks omitted).
  18
    See United States v. Chiaradio, 684 F.3d 265, 280 (1st Cir. 2012)
(holding that possession of child pornography is not a lesser-included
offense of distribution of the same); United States v. Woerner, 709 F.3d
527, 539 (5th Cir. 2013) (following Chiaradio).
10                UNITED STATES V. MCELMURRY

                    II. Sufficiency of Evidence

    McElmurry moved for a judgment of acquittal because he
did not actively do anything to distribute the images that were
used to prove his crime. The government proved distribution
with the images one of the agents had downloaded from the
“Teentrade” account. The account was on a file-sharing
program, so the only person who had to press a button to
transfer an image was the FBI agent. The FBI agent
downloaded, McElmurry did not upload or email the images.

    McElmurry concedes, however, that we have already held
in Budziak that conduct such as his constitutes distribution,19
and he merely wishes to preserve the issue. Budziak holds
that maintaining child pornography in a shared folder,
knowing that doing so will enable others to download it, if
another person does download it, amounts to sufficient
evidence to sustain a conviction for distributing the child
pornography.20

    The testimony at McElmurry’s trial sufficed to show
distribution under Budziak. The evidence was that sharing
through GigaTribe could only be accomplished if the owner
of the shared folder permitted it for a particular user, and an
FBI agent impersonating one of McElmurry’s permitted users
downloaded contraband images from McElmurry’s Teentrade
account.




 19
      See United States v. Budziak, 697 F.3d 1105, 1109 (9th Cir. 2012).
 20
      Id.
              UNITED STATES V. MCELMURRY                     11

                        III. Rule 403

    McElmurry raises a more troubling issue under Federal
Rule of Evidence 403. The prosecution was not content to
prove, with its evidence about his acts at the time charged,
that McElmurry possessed and distributed the contraband
images. Instead, the prosecutor emphasized statements
McElmurry had made four years earlier, in 2006, in
connection with a state law conviction for child pornography,
and in a letter written a few months before the present crime
was charged to an inmate he evidently knew from his prior
imprisonment. In 2007 McElmurry had pleaded guilty to
violating Cal. Penal Code § 311.11 (possession or control of
matter depicting minor engaging in or simulating sexual
conduct), and gone to prison for the crime.

    Federal agents recorded an interview with McElmurry in
2006, and the portions helpful to the prosecution were played
for the jury. As the interview went on, McElmurry admitted
that he had been looking at child pornography since he was
15-years-old (he was 30 at the time of the interview), looked
at child pornography daily, traded images with people, and
was indeed probably addicted to child pornography.
McElmurry admitted in the 2006 interview that his
pornography collection was around 40 or 50 gigabytes and
included images of children as young as babies and images of
bondage using children.

    The government also provided the jury with a letter
McElmurry had written to a prison inmate he evidently knew
from his imprisonment for his 2006 crime. The letter calls
the police, probation officers and other authorities a series of
obscene and insulting names, and brags that they will never
find “the vast majority of what I located for you,” because
12            UNITED STATES V. MCELMURRY

“everything computer related was very securely encrypted.”
McElmurry also argued in the letter against the laws treating
persons under 18-years-old as children with respect to
sexuality and adult relationships with them. Various parts of
the letter made it clear that he was writing to a friend “in
County” and was on parole himself.

     McElmurry strenuously objected to this material in an in
limine motion and in arguments on his and the government’s
in limine motions addressing admissibility of evidence.21 The
government argued that the material should come in to prove
“knowledge” and “lack of mistake.” Its theory was that the
2006 material would prove that McElmurry knew the images
downloaded by the FBI were on the computer, the reference
to encryption would prove that he knew how to encrypt, and
both would tend to prove that he was the user of the computer
linked to Teentrade. McElmurry had lived in the house but
no longer did. The government purported to be concerned
that he would raise a reasonable doubt about whether his 68-
year-old mother or 104-year-old grandmother, still living in
the house, were responsible for the child pornography, not
him. McElmurry argued that the 2006 interview was
evidence of propensity to commit child pornography crimes
rather than of one of the legitimate Rule 404(b) purposes, that
the letter was irrelevant, and that the risk of unfair prejudice
of both substantially outweighed their probative value under
Rule 403.

   The district court ruled that the probative value was not
substantially outweighed by the danger of unfair prejudice,
and overruled the Rule 403 objections. The government

   21
      We and our dissenting colleague differ on whether McElmurry
sufficiently made and preserved this objection. Dis. Op. at 27.
                 UNITED STATES V. MCELMURRY                               13

argues in its appellee’s brief that the interview was admissible
under Federal Rule of Evidence 414, but the record does not
suggest the district court admitted it on that theory, and Rule
403 analysis would be required even if it had.22 We therefore
do not address Rule 414. The government also urges that
appellant did not preserve the Rule 403 objection at trial, so
he should be deemed to have waived it. But the point of in
limine resolution of objections is to enable planning and
avoid interruptions to a jury trial. Arguing and losing on the
403 objection sufficed to preserve it.23 An objection to what
the court had already ruled unobjectionable would have
amounted to taking exception to an evidentiary ruling already
made, which Federal Rule of Evidence 103 says is
unnecessary.24

    Our disagreement with our dissenting colleague is limited
to the narrow question of whether the district court’s ruling
on the in limine objection was “definitive.” We are agreed
that under Federal Rule of Evidence 103(b) that “[o]nce the
court rules definitively on the record, either before or at trial,
a party need not renew an objection or offer of proof to
preserve a claim of error for appeal.” When he first ruled


  22
     See United States v. LeMay, 260 F.3d 1018, 1026 (9th Cir. 2001)
(holding that evidence admitted under Rule 414 must still be evaluated
under Rule 403).
  23
     See United States v. Varela-Rivera, 279 F.3d 1174, 1178 (9th Cir.
2002) (holding even when it is “questionable how thoroughly the motion
is explored,” if the denial of the motion is “definitive,” as it was here, the
objection is preserved and reviewed for an abuse of discretion).
  24
     See Fed. R. Evid. 103(b) (“Once the court rules definitively on the
record—either before or at trial—a party need not renew an objection or
offer of proof to preserve a claim of error for appeal.”).
14               UNITED STATES V. MCELMURRY

during the hearing on in limine objections, the judge said,
“My tentative is to allow the letters, providing that they can
be proven up, provided there is a foundation for
admissibility.” Subsequently, the judge interrupted himself
in the discussion of another matter, to make this ruling
definitive. This subsequent ruling was that “the motion to
exclude irrelevant evidence or marginally relevant evidence
[the letters at issue] is denied based upon the proffer from the
United States.” The court could have denied an in limine
ruling and left the matter open until seeing what letters the
government proposed to admit, but by this definitive ruling,
it did not. Defense counsel could not have made the
objection any more specific because the government had still
not stated what it would introduce. In this respect, this case
resembles United States v.Varela-Rivera, where we held that
an in limine objection not stating the precise content of what
was objected to nevertheless sufficed where the government
had not clearly said precisely what it was going to offer.25 In
this case, the judge’s ruling was definitive and not tentative,
after he so stated, and the defendant’s in limine objection was
as clear as it could be in light of the government’s failure to
state exactly what it proposed to offer. Though the court
could have denied an in limine ruling altogether and left the
matter for trial, it did not, so its definitive in limine ruling
preserved the matter without the need for further objection.

   Much of the argumentation in this case, and in the district
court’s evaluation, focuses on Rule 404(b). Rule 404(b)




 25
      Varela-Rivera, 279 F.3d at 1178.
                  UNITED STATES V. MCELMURRY                           15

contains two subsections.26 Subsection (1) is a rule of
exclusion, establishing that “[e]vidence of a crime, wrong, or
other act is not admissible to prove a person’s character in
order to show that on a particular occasion the person acted
in accordance with the character.”27 Subsection (2) is a rule
of inclusion, allowing discretionary admission of evidence of
acts extrinsic to the crime charged for a purpose other than to
prove character, such as “motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.”28 Even if the trial court determines that the
evidence at issue does indeed tend to prove knowledge or one
of the other subsection (2) grounds, a defendant is entitled to
have the probative value weighed against the risk of unfair
prejudice under Rule 403.29 Rule 404(b)(2) functions as an
exception to 404(b)(1), but not as an exception to Rule 403.
We need not decide whether the government correctly
invoked Rule 404(b) because remand is necessary regardless,
under Rule 403.




  26
      Citations are to the Rules of Evidence as amended in 2011. The
district court and the briefs before us cite to the previous version of the
Rules, but the difference is merely stylistic. As the Advisory Committee
Notes explain, the amendments are not substantive or intended to change
any ruling on evidence admissibility.
 27
      Fed. R. Evid. 404(b)(1).
 28
      Fed. R. Evid. 404(b)(2).
 29
   See United States v. Cherer, 513 F.3d 1150, 1157 (9th Cir. 2008) (“If
evidence satisfies Rule 404(b), the court must then decide whether the
probative value is substantially outweighed by the prejudicial impact
under Rule 403.”) (internal quotation marks omitted).
16                  UNITED STATES V. MCELMURRY

    We addressed how the Rule 403 weighing must be done
in our en banc decision in United States v. Curtin.30 That
decision requires that we reverse in this case. Curtin
involved a defendant’s massive collection of disgusting
pornographic stories used to prove that he probably intended
to commit a sex crime with a minor. The district judge was
furnished with more than seventeen stories the prosecutor
proposed to use as evidence, admitted five,31 but could not
bring himself to read more than two and snippets of the
others.32 Despite holding that on the facts of that case the
stories were relevant to show intent, we reversed and
remanded.33 We held that the district court had failed to
properly exercise its discretion because the judge “did not
read every word of the five disputed stories in preparation for
making its balancing decision.”34 The reason for our “every
word” requirement was that “[t]he inflammatory nature and
reprehensible nature of these abhorrent stories, although
generally relevant, is such that a district court making a Rule
403 decision must know precisely what is in the stories.”35

    The right way to rule on such evidence, we held, is first
for the government to “identify the specific purpose or
purposes” for which admission was sought under Rule


 30
      489 F.3d 935 (9th Cir. 2007) (en banc).
 31
      Id. at 942.
 32
      Id. at 956, 956 n.8.
 33
      Id. at 956, 959.
 34
      Id. at 956.
 35
      Id. at 957.
                    UNITED STATES V. MCELMURRY                 17

404(b)(2).36 Then the court must determine whether that
specific purpose is an element of the crime or is a fact that the
defendant has or will put at issue. If so, “the court must then
determine, before admitting the other acts evidence, whether
the probative value of the evidence is substantially
outweighed by the danger of unfair prejudice under Rule
403,”37 “in order for its weighing discretion to be properly
exercised and entitled to deference on appeal.”38 “In this
context, reliance on an offer of proof simply is not enough.”39
The district court must “read every word” of what will be
before the jury. The district court cannot very well decide
that words it has not read or heard will not be unduly
prejudicial, because the court does not know what the words
will be, and a prosecutor’s offer of proof about the words will
not suffice.

     We faced similar issues in United States v. Waters, albeit
about radical environmentalists burning down buildings
rather than about sex, and the admission of anarchist
literature to prove the acts charged.40 In Waters, the district
court admitted a folder of articles the defendant had
apparently given to an alleged co-conspirator. The record did
not establish as unambiguously as in Curtin that the district
judge had not read the material. But the judge did not say he
had read them, the record suggested that the court made its

 36
      Id. (emphasis in original).
 37
      Id. at 958 (emphasis in original).
 38
      Id. at 957.
 39
      Id.
 40
      United States v. Waters, 627 F.3d 345 (9th Cir. 2010).
18                 UNITED STATES V. MCELMURRY

ruling before they were provided for reading, and at oral
argument the government confirmed what the record
suggested, that the district judge had not read them.41

     In this case, as in Waters, the judge did not say in so
many words that he had not read the material, but the record,
briefs and oral argument appear to establish that he did not.
The government’s motion in limine did not attach a transcript
or copy of the 2006 interview clips or the 2010 letter. The
judge could not listen to or read the interview and read the
letter if he did not have them, and it appears from the record
that the prosecutor did not submit them to the court prior to
the in limine Rule 403 ruling. And unfortunately, counsel did
not cite or otherwise alert the district court to Curtin. During
the hearing on the in limine motions, the judge said he would
appreciate a “proffer” from the government of the 2006
interview and the related conviction. The oral argument
largely focused on the prosecutor’s suggestion that she was
entitled to prove McElmurry’s prior conviction because it was
an element the jury had to decide for sentencing purposes.
The prosecutor briefly summarized the 2006 interview42 and

 41
      See id. at 356 n.4.
      42
       The prosecutor described the 2006 interview statements she
“anticipate[d] using”:

           Let me give you a little bit of background about this
           defendant. This defendant was apprehended in 2006
           for basically the same type of conduct. During that
           conduct, he admitted post-Miranda, which was
           recorded. That statement was—has been turned over to
           defense counsel, and he admitted that he uses file
           sharing to share child pornography files. He admitted
           he uses encryption, which prevents individuals or
           anybody to get inside his computer. He admitted the
              UNITED STATES V. MCELMURRY                            19

said she sought to use it to show knowledge of the child
pornography and encryption, and “lack of mistake.” Defense
counsel conceded that the defense would be that McElmurry
did not know the images were on the computer and that it was
not his computer. The court ruled that the 2006 interview
statements could come into evidence because they were
relevant and were “more probative than prejudicial.”

    Defense counsel also objected to the letter to the inmate
on the grounds that it was not relevant, was improper
propensity evidence, lacked foundation, and was more
prejudicial than probative. At the hearing, defense counsel
asked what evidence the government sought to introduce, and
for what purpose. The prosecutor replied that she had turned
over to defense counsel a disc full of letters McElmurry




       type of child pornography that he likes; the age, the sex,
       the types of acts.

       We want to admit those statements to show knowledge
       in this case. Because in this case, we also have a file-
       sharing program, albeit a different one. In this case we
       have encryption. And to date, we still haven’t been
       able to crack his computer. And the images that the
       agent was able to download through the file-sharing
       program are of the same nature, age, sex of the
       children.

       So it’s the government’s position that the statements
       that he made from the prior incident in 2006 are directly
       relevant under 404(b) to prove knowledge, lack of
       mistake, some other type of defense like it wasn’t me,
       that sort of thing.
20               UNITED STATES V. MCELMURRY

wrote,43 mentioning encryption and the type of material he
has, which, she contended went to prove that the computer
was his, not his mother’s or grandmother’s.44 She said she
would have her exhibits in order the Friday before trial and
defense counsel could then come over to her office and look
at them. The judge confirmed his Rule 403 ruling, and said
the denial was “based upon the proffer,” not that it was based
on examining the evidence, which the court evidently did not
have. At a second in limine hearing, the judge said that with
respect to presenting to the jury the images downloaded by
the FBI agent from the desktop computer, “I may want to see
the images beforehand so I can just have an idea of what I’m
talking to the jury about,” but he did not ask to see the 2006
interview transcript or the letter to the inmate.




  43
     The prosecutor initially told defense counsel and the court that she
intended to introduce letters written by McElmurry. At trial, however,
only one letter from 2010 was admitted along with envelopes addressed
to McElmurry at the street address of his mother’s house.
 44
    The prosecutor described to the district court the letters she anticipated
introducing at trial:

         What I turned over in discovery weeks ago to counsel
         were—was a disc full of typed letters that Mr.
         McElmurry wrote. And within the letters, he talks
         about how he encrypts his computer and that law
         enforcement will never find it. He talks about the type
         of material that he has.

         All goes, again, to knowledge that it wasn’t his
         grandmother’s computer, it wasn’t his mother’s
         computer, it wasn’t some other person’s computer, it
         was his. And the material on the computer belongs to
         him.
                  UNITED STATES V. MCELMURRY                 21

     Appellant’s brief argues that we must reverse under
Curtin because the district court had not read the material
when it ruled, and relied merely on the proffer. Although
McElmurry’s brief discusses Curtin in five places, the
government’s brief does not discuss or even cite it, and offers
no argument that the district court proceeded correctly despite
Curtin. At oral argument, government counsel conceded that
the district court had not read the inmate letter before
admitting it and did not review the 2006 interview clips
published to the jury before admitting them. Thus, as in
Waters, the record, briefs and argument establish that the
district court admitted the evidence without reading it or
listening to it.

    In Waters, we reversed under Curtin because the district
court had not read the anarchist articles submitted as evidence
before ruling for the prosecution on the Rule 403 objection.
We held in Waters that the “district court had the
responsibility to read every page of the articles” to properly
weigh unfair prejudice against probative value under Rule
403,45 thereby extending the “read every word” Curtin
requirement beyond disgusting and inflammatory child
pornography to “all district courts when performing the 403
balancing test.”46 In Curtin, we held that we would not give
deference to the district court’s Rule 403 ruling, as we
ordinarily would for an evidentiary ruling, because the district
court had not read the evidence before admitting it over the
Rule 403 objection, so we cannot do so here.47 And we


 45
      Waters, 627 F.3d at 357.
 46
      Id.
 47
      See Curtin, 489 F.3d at 957.
22              UNITED STATES V. MCELMURRY

expressly held that “reliance on an offer of proof simply is
not enough,”48 so the ruling in this case could not properly be
made based on the prosecutor’s description of the evidence at
the in limine hearing.

     Ordinarily the next step of our analysis would be deciding
whether the government successfully bore its burden of proof
that the error in admitting the evidence was harmless.49 That
would be a hard argument to make. The first thing the
prosecutor said, even before stating his name, was that, “In
his own words, the defendant, David McElmurry, is addicted
to child pornography.” That line came from the 2006
interview. In closing argument, the prosecutor played clips
from the 2006 interview, and emphasized that “for half his
life, [McElmurry] had been interested in viewing child
pornography. Half of his life. He admitted that he was
addicted.” An “addiction,” of course, implies something that
an individual cannot stop doing. Another clip from the
interview was played, prompting the prosecutor to conclude:
“He likes all sorts of child pornography, including images
involving babies.”

   The government in this case does not attempt to argue
harmless error. The government’s position appears to have
been that the evidence was needed to show that McElmurry
knew what was on the computer and had encrypted it, in
order to prove that what the FBI agent had downloaded came


 48
       Id.
  49
    See Waters, 627 F.3d at 358 (“The government bears the burden of
proving harmlessness, and must demonstrate that it is more probable than
not that the errors did not materially affect the verdict.”) (internal
quotation marks and alteration omitted).
                UNITED STATES V. MCELMURRY                            23

from McElmurry and not his 68-year-old mother or his 104-
year-old grandmother. The importance, rather than the
marginality, of the evidence at issue appears to have been the
government’s basis for seeking its admission.             The
government has not claimed that the error was harmless,
much less borne its burden of proof of harmlessness.

                                 ***

    McElmurry makes several additional arguments. First, he
argues that the district court abused its discretion when it
admitted the 2006 interview clips, the letter to the inmate, and
the facts he admitted in his plea agreement for the 2006
crime, because the danger of unfair prejudice substantially
outweighs their probative value. He also argues that this
evidence was improper propensity evidence under 404(b). In
light of our decision to reverse under Curtin-Waters, we
decline to reach these issues.

    Since we reverse on 403 error and do not decide on 404
error, the district court will have to analyze the evidence
under both rules, with knowledge of what the evidence is. If
the government makes a Rule 414 argument in district court,
analysis under United States v. LeMay will be required.50

   Because we reverse and remand for 403 error, we need
not reach McElmurry’s argument that the government


  50
     United States v. LeMay, 260 F.3d 1018, 1027–28 (9th Cir. 2001)
(noting that a court must “pay careful attention to both the significant
probative value and the strong prejudicial qualities” of Rule 414 evidence
and articulating “several factors that district judges must evaluate in
determining whether to admit evidence of a defendant’s prior acts of
sexual misconduct”) (emphasis added) (internal quotation marks omitted).
24            UNITED STATES V. MCELMURRY

committed misconduct during opening and closing arguments
by emphasizing the disputed evidence.

                        Conclusion

    Convictions for possessing child pornography and
distributing the same child pornography do not amount to
double jeopardy. Sharing the child pornography through a
peer-to-peer network amounts to distribution, even though the
distributor does not take some concrete affirmative action for
the particular download that is charged as the distribution.
The Curtin-Waters error compels reversal. A district court
cannot properly exercise its discretion to decide whether the
probative value of evidence objected to under Rule 403
outweighs the risk of unfair prejudice without examining the
evidence.

   The judgment is VACATED and this case is
REMANDED for further proceedings consistent with this
opinion.



CHRISTEN, Circuit Judge, concurring in part and dissenting
in part:

    I concur in Parts I and II of the majority opinion.
McElmurry’s convictions for distributing and possessing
child pornography do not violate double jeopardy, and the
district court correctly denied McElmurry’s motion for a
judgment of acquittal on the distribution charge. I also
concur in Part III of the majority opinion with respect to the
2006 interview statements. Under United States v. Curtin,
489 F.3d 935 (9th Cir. 2007) (en banc), and United States v.
              UNITED STATES V. MCELMURRY                    25

Waters, 627 F.3d 345 (9th Cir. 2010), the district court erred
by making a Rule 403 determination with respect to the
interview statements without reviewing them. I dissent,
however, from the portion of Part III that concludes that the
district court made a similar error with respect to the letter
exhibit that was introduced at trial.

     The defendants in both Curtin and Waters objected at
trial under Rule 403 to specific pornographic stories and
specific pieces of anarchist literature, respectively, that the
government sought to introduce. See Waters, 627 F.3d at 356
n.4; Curtin, 489 F.3d at 942. We held in each case that the
district court abused its discretion by making a Rule 403
determination without having read the challenged material.
Waters, 627 F.3d at 357; Curtin, 489 F.3d at 958. Thus, I
understand Curtin and Waters to apply when a Rule 403
objection is raised regarding a specific piece of evidence, and
the court definitively rules on the objection without reviewing
that piece of evidence. That did not happen with respect to
the letter in this case.

    During execution of the search warrant at McElmurry’s
mother’s house, FBI agents seized several items, one of
which was a “disc full of typed letters that Mr. McElmurry
wrote.” McElmurry’s pretrial motion in limine was quite
general, arguing that “the government should not be allowed
to introduce irrelevant or marginally relevant prejudicial
evidence obtained” during the execution of the warrant,
including “letters from an inmate” and “letters (presumably
to an inmate).” In its opposition to McElmurry’s motion, the
government stated its intent to seek admission of “letters
written by Defendant to others about his sexual interest in
children.” Neither McElmurry nor the government specified
26             UNITED STATES V. MCELMURRY

which letter or letters they sought to introduce, or exclude, at
trial.

     The district court held a hearing on the motion in limine
approximately two weeks before trial. McElmurry’s counsel
stated that his “question with regard to [the letters] is the
relevance.” Notably, he did not clearly articulate a prejudice
objection or otherwise invoke Rule 403. The prosecutor
extended an invitation to McElmurry’s counsel “to come over
to my office” and “look through all the items that were
seized.” The prosecutor also stated: “The Friday before trial,
I’ll have all of my exhibits in order and he can take a look at
them at his leisure.” From this, I understand that the
government had not yet identified or marked its exhibits at
the time of the pretrial hearing, and that the district court did
not know which letters or excerpts of letters the government
planned to introduce. The majority reaches the same
conclusion.

     It appears the court reasonably relied on McElmurry’s
counsel to take up the offered opportunity to review all the
materials seized from McElmurry’s mother’s house and
confer with the government about trial exhibits and possible
redactions. Indeed, at a status conference held the day before
trial, the prosecutor confirmed that McElmurry’s counsel
“came over to my office and viewed all of our exhibits.”

    One thing is certain: before trial, the district court did not
make a definitive Rule 403 determination with respect to any
of the letters. At the motion in limine hearing, the court
stated: “My tentative [ruling] is to allow the letters, providing
they can be proven up, provided there is a foundation for
admissibility.” (Emphasis added.) The court also denied
McElmurry’s “motion to exclude irrelevant evidence or
                UNITED STATES V. MCELMURRY                            27

marginally relevant evidence.” In doing so, the court
signaled it was unwilling to categorically exclude evidence
obtained during the execution of the search warrant, but it did
not rule that the evidence would be admitted, or determine
whether the probative value of any particular piece of
evidence outweighed its prejudicial effect. The government
acknowledged: “[The letters are] like any other . . . piece of
evidence. Obviously, the United States has to lay the
foundation, and to the extent [McElmurry] objects, he can
object.”

    The actual exhibit had been marked by the time of the
status conference held the day before trial. There was no
objection to the exhibit and the court made no additional
ruling at that time. Given this record, if McElmurry had a
Rule 403 objection to the specific letter exhibit that was
ultimately proffered at trial, it was his responsibility to
articulate it. See United States v. Lui, 941 F.2d 844, 846 (9th
Cir. 1991) (“A pretrial motion in limine preserves for appeal
the issue of admissibility of that evidence if the substance of
the objection has been thoroughly explored during the hearing
and the district court’s ruling permitting introduction of
evidence was explicit and definitive.”). He did not do so.1


  1
     The letter that was eventually proffered as an exhibit consisted of
seven, single-spaced typed pages. When the government offered it at trial,
McElmurry’s only objection was lack of foundation. That objection was
overruled. The second page of the letter was briefly published to the jury
on an overhead screen. The government emphasized a highlighted portion
regarding computer encryption before taking the letter down. It does not
appear from the trial transcript that any other pages of the letter were
published to the jury during the presentation of the evidence. The entire
letter was eventually sent to the jury room, but before that, outside the
presence of the jury, the government stated it would meet and confer with
McElmurry’s counsel about which parts of the letter McElmurry’s counsel
28               UNITED STATES V. MCELMURRY

     The majority opinion concludes that McElmurry’s motion
in limine and his argument at the pretrial hearing preserved a
Rule 403 objection to the letter exhibit that was ultimately
introduced, citing Federal Rule of Evidence 103(b) and
United States v. Varela-Rivera, 279 F.3d 1174 (9th Cir.
2002). But these sources make clear that a party is required
to renew an objection at trial when the pretrial ruling is not
definitive. See Fed. R. Evid. 103(b); Varela-Rivera, 279 F.3d
at 1177.2 Here, because the district court’s pretrial ruling did
not definitively address the specific letter exhibit that the
government ultimately sought to introduce and because
McElmurry did not object at trial under Rule 403, I would
review for plain error the district court’s determination that



wanted to redact. The district court directed that any reference to jail time
and a prior arrest be redacted and then asked, “Is there anything else?”
McElmurry’s counsel did not respond. It appears the meet and confer in
fact took place, because the record shows the letter sent to the jury room
as Exhibit 32A had been redacted.
  2
    In Varela-Rivera, the government sought to introduce expert witness
testimony concerning the modus operandi of drug couriers. 279 F.3d at
1176. The defendant objected to the introduction of this type of expert
testimony twice before trial and was overruled each time. Id. The
defendant did not object at trial to the government’s expert’s testimony on
“methods and techniques used by narcotics smugglers.” Id. at 1176–77.
On this record, we held that the defendant had preserved an objection to
the trial testimony because the trial court’s denial of the defendant’s
pretrial objections was “explicit and definitive.” Id. at 1178. In other
words, the court’s denial was clearly a decision to permit modus operandi
expert testimony, even though the precise content of that testimony was
unclear. See id. On the facts of this case, by contrast, the district court’s
denial of McElmurry’s pretrial motion in limine concerning physical
evidence seized during the search of his mother’s house was not a decision
to permit the introduction of the specific letter exhibit that was ultimately
proffered at trial.
              UNITED STATES V. MCELMURRY                    29

the probative value of the letter outweighed its prejudicial
effect, and affirm the district court’s ruling.

    By applying the “read every word” rule from Curtin and
Waters to the letter in this case, the majority opinion expands
the rule in a way I fear will be unworkable. As the majority
opinion acknowledges, “the point of in limine resolution of
objections is to enable planning and avoid interruptions to a
jury trial.” But the court’s opinion arguably requires district
courts to review all materials the government might introduce
at trial—before the government has even specifically
identified them—in order to give even a tentative ruling on a
pretrial motion in limine. Such a time-consuming burden will
almost certainly delay pretrial rulings and deprive trial
counsel of helpful guidance needed for trial preparation and
settlement negotiations. For these reasons, I respectfully
dissent.
