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                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-10427
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 6:18-cr-00136-CEM-GJK-1



UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellant,

                                    versus

RYAN RUSTY RODRIGUEZ,

                                                           Defendant-Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                            (December 19, 2019)

Before ROSENBAUM, GRANT, and TJOFLAT, Circuit Judges.

PER CURIAM:
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        This is an interlocutory appeal by the government from the district court’s

order excluding evidence, under Rule 403, Fed. R. Evid., of images and videos of

child pornography in a prosecution for possession, receipt, and distribution of child

pornography. After careful review, we conclude that the district court abused its

discretion when it imposed a blanket ban on the showing of child pornography to the

jury.

                                         I.

        Rodriguez was charged in a five-count superseding indictment with

possession (Count Three), receipt (Counts One and Two), and distribution (Counts

Four and Five) of several videos containing child pornography. See 18 U.S.C.

§ 2252A(a)(2) & (a)(5)(B). Before trial, Rodriguez moved in limine to prevent the

government from showing the jury any videos or images containing child

pornography, arguing that this evidence was unfairly prejudicial.

        The government responded that the child pornography was relevant to prove

that the materials contained child pornography and that Rodriguez knowingly

possessed, received, and distributed child pornography. Further, the government

contended that publishing “a measured portion of defendant’s collection” adequately

mitigated the danger of unfair prejudice. It advised that it intended to show to the

jury “short clips (approximately 5 to 10 seconds long) of the videos charged in the




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Superseding Indictment, as well as four to five images out of the approximately 1000

images found in unallocated space” on Rodriguez’s computer.

      According to the government’s summary of the evidence, undercover federal

agents in January and February 2018 used a peer-to-peer file sharing program to

download videos of child pornography from a computer using an IP address

registered to Rodriguez’s residence. The materials downloaded included five videos

in a series known as “Daisy’s Destruction,” which depicted the sadistic torture and

sexual abuse of a two-year-old child, as well as other videos of child pornography.

These videos formed the basis of Counts Four and Five, the distribution counts.

Federal agents then executed a search warrant at Rodriguez’s residence. A forensic

search of the materials seized revealed four videos of child pornography, nearly one

thousand images of child pornography in “unallocated” space on Rodriguez’s

computer (meaning the images had been deleted), instructions on how to find child

pornography, and other indications that Rodriguez had downloaded files with “titles

clearly indicative of child pornography content.” The four videos recovered during

the forensic search formed the basis of Counts One, Two, and Three, the possession

and receipt counts. During an interview, Rodriguez claimed that he sometimes

accidentally downloads, and then deletes, child pornography when looking for adult

pornography.




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      After hearing from the parties, the district court granted Rodriguez’s motion

to exclude the evidence. The court first found that, because Rodriguez had agreed

to stipulate that the videos and images were in fact child pornography, the

government had met its burden as to that element of the offense and there was “no

utility in forcing jurors to view clips of the videos to determine whether the videos

contain child pornography.”

      Next, as to the element of Rodriguez’s knowledge, the district court concluded

that Rodriguez’s agreement to present to the jury “a specific written description of

the content of each individual video [and image] was sufficient for the Government

to prove the element of knowing possession.” And in light of the specific written

descriptions, the court reasoned that “[f]orcing the jury to view the clips of the videos

[and images] will serve no purpose other than to inflame the passions of the jurors.”

In this regard, the court noted that “the mere written descriptions of the alleged child

pornography are disturbing and horrific.” Accordingly, the court excluded the

challenged evidence under Federal Rule of Evidence 403.

      The government now appeals the exclusion of this evidence. See 18 U.S.C.

§ 3731 (“An appeal by the United States shall lie to a court of appeals from a decision

or order of a district court . . . excluding evidence . . . .”). The case has been stayed

pending the resolution of this appeal.

                                           II.


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      We review a district court’s decision to exclude relevant evidence under

Federal Rule of Evidence 403 for an abuse of discretion. United States v. Knowles,

889 F.3d 1251, 1255 (11th Cir. 2018). The abuse-of-discretion standard recognizes

that the trial judge may reach a range of possible conclusions and, thus, affords the

district court considerable leeway in evidentiary rulings. United States Barton, 909

F.3d 1323, 1330 (11th Cir. 2018). We will not reverse an evidentiary decision of a

district court unless the ruling is manifestly erroneous. Id.

      Rule 403 permits the exclusion of relevant evidence “if its probative value is

substantially outweighed by a danger of . . . unfair prejudice.” Fed. R. Evid. 403.

The term “unfair prejudice” “speaks to the capacity of some concededly relevant

evidence to lure the factfinder into declaring guilt on a ground different from proof

specific to the offense charged.” Old Chief v. United States, 519 U.S. 172, 180

(1997). Within the context of Rule 403, unfair prejudice typically means an undue

tendency to suggest decision on an emotional basis. Id.

      The exclusion of relevant evidence under Rule 403 “is an extraordinary

remedy which the district court should invoke sparingly, and the balance should be

struck in favor of admissibility.” United States v. Alfaro-Moncada, 607 F.3d 720,

734 (11th Cir. 2010) (quotation marks omitted). Therefore, when we examine Rule

403 issues on appeal, we view the evidence in the light most favorable to its

admission. Id.


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      As a general rule, “the prosecution is entitled to prove its case by evidence of

its own choice,” and a defendant “may not stipulate or admit his way out of the full

evidentiary force of the case as the [g]overnment chooses to present it.” Old Chief,

519 U.S. at 186–87. “A syllogism is not a story, and a naked proposition in a

courtroom may be no match for the robust evidence that would be used to prove it.”

Id. at 188. Evidence of the “concrete and particular” “has force beyond any linear

scheme of reasoning,” and the full picture of the events has “power not only to

support conclusions but to sustain the willingness of jurors to draw the inferences,

whatever they may be, necessary to reach an honest verdict.” Id. at 187. In this way,

“the evidentiary account of what a defendant has thought and done can accomplish

what no set of abstract statements ever could, not just to prove a fact but to establish

its human significance, and so to implicate the law’s moral underpinnings and a

juror’s obligation to sit in judgment.” Id. at 187–88. Plus, the general rule reflects

“the need for evidence in all its particularity to satisfy the jurors’ expectations about

what proper proof should be.” Id. at 188. Otherwise, the government may be

penalized for gaps in its evidence. Id. at 188–89.

      Yet, as Rule 403 recognizes, there are limits to the government’s right to

introduce relevant evidence of its choice. And when evaluating a piece of evidence

under Rule 403 that may raise a danger of unfair prejudice, the court may “compar[e]

evidentiary alternatives.” Id. at 183. In other words, the court “evaluate[s] the


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degrees of probative value and unfair prejudice not only for the item in question but

for any actually available substitutes as well.” Id. at 182. “If an alternative were

found to have substantially the same or greater probative value but a lower danger

of unfair prejudice, sound judicial discretion would discount the value of the item

first offered and exclude it if its discounted probative value were substantially

outweighed by unfairly prejudicial risk.”        Id. at 182–83.      Thus, in limited

circumstances, the government can be required to accept a stipulation by the

defendant to a particular fact rather than present proof of the stipulated fact. See id.

at 191 (holding that the government must accept a defendant’s stipulation to the fact

of a prior conviction in prosecutions for possession of a firearm after a felony

conviction under 18 U.S.C. § 922(g)(1)).

      We begin our analysis by setting forth the elements of the charged crimes that

the government had to prove. Rodriguez was charged with four violations of 18

U.S.C. § 2252A(a)(2) and one violation of 18 U.S.C. § 2552A(a)(5)(B), which

together make it unlawful to “knowingly” possess, receive, or distribute child

pornography. To convict a defendant under these provisions, the government must

prove that (1) the defendant knowingly possessed, received, or distributed (2) images

or media of a minor (3) depicting that minor engaging in “sexually explicit conduct.”

See United States v. Grzybowicz, 747 F.3d 1296, 1305 (11th Cir. 2014). To satisfy

the knowledge element, the government must prove that the defendant knew that the


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material he possessed, received, or distributed showed minors engaging in sexually

explicit conduct. See Alfaro-Moncada, 607 F.3d at 733.

      The government contends that the district court abused its discretion by

discounting the probative value of the child pornography and overestimating the

potential for unfair prejudice. In the government’s view, videos or images of child

pornography in a child pornography case are “highly probative of both the fact that

particular files contained child pornography and of a defendant’s knowing receipt,

possession, and distribution of those files.” Written stipulations as to the content of

the child pornography are not an adequate substitute, according to the government,

because the child pornography carries more probative weight than a mere

description.   And in any event, the government maintains, Rodriguez cannot

stipulate his way out of the full evidentiary force of the case as the government

chooses to present it. To the extent the child pornography would potentially inflame

the jury’s emotions to some degree, the government contends that courts routinely

conclude that this type of evidence that it intends to offer is not substantially more

prejudicial than probative, and that, in any event, any prejudice can be adequately

mitigated.

      As the government notes, we have upheld the admission of similar evidence

of child pornography against Rule 403 challenges.           In Alfaro-Moncada, the

defendant challenged the admission of five still images of child pornography,


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arguing that “showing the images to the jury was done only to prejudice and inflame

the minds of the jurors” and was improper under Rule 403. 607 F.3d at 734. We

held that the images served two “valid purposes.” Id. First, the images proved that

the DVDs from which the images were taken actually contained child pornography,

though we noted the defendant’s stipulation to that fact. Id. Second, the images

“tended to show that [the defendant] knew he was in possession of child

pornography, a fact that he did not stipulate.” Id. While we acknowledged that the

images may have “created some risk of injecting emotions into the jury’s decision-

making,” we concluded that the court reasonably found that the risk did not

substantially outweigh the images’ probative value, particularly when the jury was

shown only a small fraction of the total number of images on the DVDs. Id.

      Likewise, in United States v. Dodds, we upheld the admission of 66 images

of child pornography against a Rule 403 challenge that the evidence was unfairly

cumulative and prejudicial. 347 F.3d 893, 897–90 (11th Cir. 2003). We found that

the images were “probative for several reasons.” Id. at 899. They showed that the

images the defendant possessed were child pornography, that the defendant “knew

the images were child pornography,” and that the defendant intended to collect such

pornography. Id. We also noted that only a small proportion of the images in the

defendant’s possession were shown to the jury and that the district court questioned

jurors about viewing child pornography during voir dire. Id. While leaving open


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the possibility that “in another case such images might be deemed unfairly

prejudicial,” we held that the court did not abuse its discretion by admitting the

images in that case. Id.

      Consistent with these decisions, our sister circuits have almost uniformly

upheld the admission of a sample of images or videos of child pornography, despite

a defendant’s offer to stipulate that the images or videos contain child pornography.

E.g., United States v. Morales-Aldahondo, 524 F.3d 115, 120 (1st Cir. 2008); United

States v. Polouizzi, 564 F.3d 142, 152–53 (2d Cir. 2009); United States v. Finley,

726 F.3d 483, 492–93 (3d Cir. 2013); United States v. Caldwell, 586 F.3d 338, 343

(5th Cir. 2009); United States v. Sewell, 457 F.3d 841, 843–44 (8th Cir. 2006);

United States v. Ganoe, 538 F.3d 1117, 1123–24 (9th Cir. 2008); United States v.

Schene, 543 F.3d 627, 643 (10th Cir. 2008). These courts have reasoned that a

defense stipulation does not overcome the government’s right to make a full

presentation of the crimes charged, that images or video recordings of child

pornography have probative force beyond written stipulations, and that the danger

of unfair prejudice can be mitigated by showing a small number of images or short

clips of videos that are representative of the materials possessed, received, or

distributed.

      Here, we conclude that the district court abused its discretion by imposing a

blanket ban on showing the jury any child pornography—whether still images or


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video clips. To begin with, we acknowledge that the videos of child pornography

here, particularly the “Daisy’s Destruction” series, “include the kind of highly

reprehensible and offensive content that might lead a jury to convict because it thinks

that the defendant is a bad person and deserves punishment, regardless of whether

the defendant committed the charged crime.” United States v. Loughry, 660 F.3d

965, 972 (7th Cir. 2011) (noting that “hard core” child pornography has “a strong

tendency to produce intense disgust”). And we understand the district court’s desire

to shield the jury from that content, particularly when, as the court recognized, the

“mere written descriptions of the alleged child pornography are disturbing and

horrific.”

      But a defendant generally may not “stipulate or admit his way out of the full

evidentiary force of the case as the [g]overnment chooses to present it.” Old Chief,

519 U.S. at 186–87. “That the nature of the crime itself, and therefore the nature of

the evidence tending to prove it, is emotionally charged does not mean that the

prosecution must be deprived of its most probative evidence.” United States v.

Smith, 459 F.3d 1276, 1296 (11th Cir. 2006). Rule 403 creates “no requirement that

the government choose the least prejudicial method of proving its case,” United

States v. Dixon, 698 F.2d 445, 446 (11th Cir. 1983), nor is it meant to “sanitize[]”




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the facts or “to mitigate a crime,” United States v. McRae, 593 F.2d 700, 707 (5th

Cir. 1979).1

       The child pornography here was probative because it tended to show both that

the materials possessed, received, and distributed by Rodriguez contained

pornography and that he knew he had possessed, received, and distributed child

pornography. Although Rodriguez stipulated that the materials contained child

pornography, he did not stipulate to his knowledge of the child pornography. See

United States v. Eads, 729 F.3d 769, 778 (7th Cir. 2013) (“A stipulation about the

content of charged images only goes so far if it is silent with respect to the

defendant’s knowledge of the images in his possession.”). So the government still

bore the burden of proving Rodriguez’s knowledge that he received, possessed, and

distributed child pornography, and the child pornography itself tends to show that

knowledge. See Alfaro-Moncada, 607 F.3d at 734; Dodds, 347 F.3d at 899.

       Moreover, the videos were not extrinsic to the offenses charged “but rather a

part of the actual pornography possessed,” received, or distributed. Dodds, 347 F.3d

at 898; cf. United States v. Stout, 509 F.3d 796, 800 (6th Cir. 2007) (holding that it

was an abuse of discretion to admit extrinsic evidence that was “more lurid and

frankly more interesting than the evidence surrounding the actual charges”). The



       1
        This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1,
1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
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videos were, therefore, central to the story of Rodriguez’s conduct in a way that the

name or nature of a prior offense is not in a prosecution for possession of a firearm

by a convicted felon under § 922(g)(1). See Old Chief, 519 U.S. at 190 (noting that

“proof of the defendant’s status goes to an element entirely outside the natural

sequence of what the defendant is charged with thinking and doing to commit the

current offense”). The specific nature and content of the videos were relevant not

just to prove the discrete elements of the offense but to establish the “human

significance” of the facts. See id. at 187–88. The child pornography also might be

part of the proof a jury might reasonably expect—reluctantly, to be sure—in a case

involving possession, receipt, and distribution of child pornography. See id. at 188.

      While the district court was permitted to compare evidentiary alternatives,

including Rodriguez’s stipulation to specific written descriptions of the videos and

images, written descriptions do not have “substantially the same or greater probative

value” as videos and images on which the descriptions are based. Old Chief, 519

U.S. at 182–83; see United States v. Cunningham, 694 F.3d 372, 389 (3d Cir. 2012)

(stating that “the agreed upon stipulation obviously falls far short of the evidentiary

impact made by the video excerpts the government wanted to present”). Although

this case involves a more extensive stipulation than most, we agree with our sister

circuits that images or videos of child pornography have probative force beyond any

written stipulation. See, e.g., Cunningham, 694 F.3d at 389; Caldwell, 586 F.3d at


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343; Ganoe, 538 F.3d at 1123–24. We therefore respectfully disagree with the

district court’s statement that “[f]orcing the jury to view the clips of the videos will

serve no purpose other than to inflame the passions of the jurors.”

      Viewing the evidence in the light most favorable to admission, see Alfaro-

Moncada, 607 F.3d at 734, we conclude that the district court abused its discretion

by imposing a blanket ban on the showing of child pornography to the jury. Given

the traditional prerogative of the government to prove its case with evidence of its

choice, and the lack of evidence with substantially the same or greater probative

value as the child pornography itself, the court cannot wholly prevent the

government from showing to the jury evidence of the videos Rodriguez is charged

with possessing, receiving, and distributing. We therefore vacate the district court’s

decision to exclude all child pornography from the trial.

      To be clear, we hold only that the line drawn by the district court in the

decision under review—excluding from trial images or videos of child pornography

altogether—constituted an abuse of the court’s discretion under Rule 403. We do

not otherwise express or imply any opinion about how the district court must

exercise that discretion upon remand.

      VACATED AND REMANDED.




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