                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
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                                    No. 06-1018
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United States of America,               *
                                        *
      Appellee,                         *
                                        *      Appeal from the United States
      v.                                *      District Court for the Western
                                        *      District of Missouri.
Michael Shawn McCourt,                  *
                                        *
      Appellant.                        *
                                 ________________

                            Submitted: September 26, 2006
                                Filed: November 24, 2006
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Before LOKEN, Chief Judge, BEAM and GRUENDER, Circuit Judges.
                            ________________


GRUENDER, Circuit Judge.

       Michael Shawn McCourt appeals his conviction for attempted distribution and
attempted receipt of child pornography over the Internet and possession of child
pornography in violation of 18 U.S.C. §§ 2252(a)(2), (4). McCourt challenges the
district court’s1 admission into evidence and publication to the jury of seven three-
second video clips of child pornography, alleged discovery violations by the
Government, the district court’s refusal to give a theory-of-defense instruction and his


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        The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
sentence under the Ex Post Facto and Due Process clauses. We reject McCourt’s
arguments and affirm his conviction and sentence.

I.    BACKGROUND

      McCourt used his personal computer to download pornography from the
Internet. Using peer-to-peer file-sharing programs, McCourt entered Internet chat
rooms dedicated to particular pornographic interests for the purpose of trading files
with others in the room. The file-sharing program allowed McCourt to designate
which files on his computer he would share and advertise the type of files he sought.
McCourt advertised in the chat rooms that he was seeking videos and images of
“young forced nudity” and “young amateurs.”

       In July 2003, Detective Shlomo Koenig of the Rockland County, New York
Sheriff’s Department entered a chat room named “#100%PRETEENGIRLSEXPICS”
where McCourt had posted files for others to download. Detective Koenig
downloaded three images of child pornography from McCourt’s computer and
forwarded them to the Platte County, Missouri Sheriff’s Department for further
investigation.

       Based on this information, the Platte County Sheriff’s Department obtained and
executed a search warrant at McCourt’s home on August 8, 2003. During the search,
McCourt’s computer was seized. Forensic analysis of the computer eventually
resulted in the discovery of 320 files containing still images and videos of child
pornography. He had cataloged the files on his computer by file type into folders he
named “Music_TV,” “Pic” and “Video.”

      McCourt was subsequently indicted for attempted distribution of child
pornography over the Internet, two counts of attempted receipt of child pornography
over the Internet, and possession of child pornography in violation of 18 U.S.C. §§

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2252(a)(2), (4). The Overland Park Police Department arrested McCourt on
December 17, 2004. McCourt was given his Miranda rights and agreed to talk to law
enforcement. McCourt told the officers he was interested in “amateur” and “voyeur”
pornography. He admitted to sorting the pornographic files into folders on his
computer but denied looking at a single file before moving it into the appropriate
folder. McCourt also admitted to discovering child pornography on his computer, but
he claimed that he always deleted it.

      Prior to trial, the parties stipulated that McCourt’s computer had 320 files
containing child pornography, of which more than 175 were videos. The stipulation
included descriptive names of the files, whether they were still images or videos, and
an admission that each contained images of actual minors engaged in sexually explicit
conduct. In addition to the stipulation, the Government selected three still images and
seven three-second video clips that it wished to publish to the jury. McCourt filed a
motion in limine to exclude publication of the video clips. The district court held an
in-chambers conference and overruled McCourt’s motion.

       Also prior to trial, the Government’s expert, Detective Mike Jacobson,
produced three reports regarding the content of McCourt’s computer, how the peer-to-
peer programs were operated on McCourt’s computer, and when the child
pornography files on McCourt’s computer were created. McCourt’s expert, Troy
Schnack, also produced a report, using a different method from Jacobson to calculate
the number of files downloaded from the peer-to-peer programs onto McCourt’s
computer. Despite the different calculation methods, Jacobson and Schnack agreed
that the total number of files downloaded exceeded 24,000. Moments before the
Government’s opening statement, Jacobson alerted Government counsel that due to
a mistake he had made in one of his reports, he now agreed with Schnack’s method
of calculating the number of downloaded files. The Government made no mention of
the number of downloads or method of calculation in its opening statement. On cross-
examination, Jacobson admitted to the mistake and agreed with Schnack’s method in

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reaching the 24,000 file estimate. Additionally, on direct examination, Jacobson
clarified a different mistake in his report regarding the computer’s time-stamp
function. McCourt’s counsel addressed both mistakes and their consequences in
closing argument.

       During the trial, McCourt attempted to establish that a hacker, not McCourt,
uploaded the illegal files onto his computer through the peer-to-peer programs and
that he had no intent to distribute or possess the unsolicited child pornography.
McCourt subsequently requested a theory-of-defense instruction stating inter alia that
it was the Government’s burden to prove the identity of the person that committed the
offenses beyond a reasonable doubt. Finding that the proffered instruction was
inaccurate and that the instructions defining knowledge and intent were sufficient to
address McCourt’s theory of his case, the district court declined to give the proffered
instruction.

      The jury convicted McCourt on all counts, and the district court sentenced him
to 120 months’ imprisonment.

II.   DISCUSSION

      A.     Publication of the Video Clips

       We review for an abuse of discretion the district court’s evidentiary rulings.
United States v. Becht, 267 F.3d 767, 770 (8th Cir. 2001). McCourt does not
challenge the relevance of the video clips under Fed. R. Evid. 401, but rather focuses
his argument on his claim that unfair prejudice resulted from the district court’s
admission of the seven three-second video clips. Specifically, McCourt asserts: (1)
in light of his stipulation that the video clips contained child pornography, the clips
should have been excluded as a matter of law under Old Chief v. United States, 519
U.S. 172 (1997); and (2) the district court failed to engage in a Rule 403 balancing test

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in deciding whether to admit the video clips or allow his stipulation as a substitute.
We address these arguments in turn.

        Rule 403 allows a trial judge to exclude relevant evidence on the grounds that
its probative value is substantially outweighed by the danger of unfair prejudice. Fed.
R. Evid. 403. Old Chief instructs district courts to discount the probative value of the
disputed evidence if it poses a risk of unfair prejudice and an evidentiary alternative
has equal or greater probative value. 519 U.S. at 182–83; Becht, 267 F.3d at 773.
Stipulating to an element of the offense does not generally constitute an evidentiary
alternative having equal or greater probative value. United States v. Sewell, 457 F.3d
841, 844 (8th Cir. 2006). Accordingly, “a defendant’s Rule 403 objection offering to
concede a point generally cannot prevail over the Government’s choice to offer
evidence showing guilt and all the circumstances surrounding the offense.” Old Chief,
519 U.S. at 183. In essence, the Government “is entitled to prove its case by evidence
of its own choice,” and “a criminal defendant may not stipulate or admit his way out
of the full evidentiary force of the case as the Government chooses to present it.” See
id. at 186–87.

        In Old Chief , the Supreme Court held that the defendant’s stipulation to a prior
felony to establish his status as a felon, which was an element of the charged offense,
was sufficient to preclude the Government from offering additional evidence on this
point. 519 U.S. at 191. However, the Court expressly limited its holding to cases
where “proof of convict status is at issue,” id. at 192, and our cases agree. Becht, 267
F.3d at 774 (“We believe the Old Chief Court made clear that, absent the unusual
circumstance of prior criminal status, the Government is free to offer its evidence as
it sees fit.”); United States v. Hill, 249 F.3d 707, 713 (8th Cir. 2001) (noting that “the
rationale for the limited rule of Old Chief disappears” when a stipulation goes to any
element of the crime other than criminal status). As such, we have upheld publication
of child pornography images to the jury over a defendant’s offer to stipulate to their
content. Sewell, 457 F.3d at 844 (reversing the exclusion of 23 images proffered for

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publication for three or four seconds each); Becht, 267 F.3d at 774 (upholding the
admission of 39 images published to the jury on a computer screen and distributed as
hard copies). We believe McCourt’s Old Chief argument is decided by our precedent.

       McCourt next argues that the district court abused its discretion by failing to
conduct a balancing test as required by Rule 403. McCourt’s contention is not
supported by the record because during the motion in limine conference the district
court stated that the Government’s agreement to publish the videos for only a few
seconds each was “certainly a better and potentially less prejudicial way to proceed
than to show the entire file.” While this may not amount to a lengthy analysis, “the
district court’s mere failure to make a record of its Rule 403 weighing is not reversible
error.” Smith v. Tenet Healthsystem SL, Inc., 436 F.3d 879, 885 (8th Cir. 2006); see
also United States v. Flaherty, 76 F.3d 967, 973 n.5 (8th Cir. 1996) (“A district court
is not required to make explicit findings regarding its Rule 403 balancing.”),
abrogated on other grounds by United States v. Ryan, 227 F.3d 1058, 1062 (8th Cir.
2000). We find nothing in the record to indicate that the district court did not conduct
a Rule 403 analysis when faced with McCourt’s motion in limine. Smith, 436 F.3d
at 885 (“We presume that the district court weighed this evidence pursuant to Rule
403 because the district court ruled on motions and objections in which [defendant]
specifically requested that the court weigh the probative value of the records against
their prejudicial effect.”).

       Moreover, a more thorough balancing evaluation would not demand exclusion
of the video clips in this case. McCourt fails to recognize that the Supreme Court has
advised that Rule 403 requires a preliminary showing of unfair prejudice before the
need to balance the probative value of the evidence and its alternatives arises. Old
Chief, 519 U.S. at 182 (“On [a Rule 403] objection, the court would decide whether
a particular item of evidence raised a danger of unfair prejudice. If it did, the judge
would go on to evaluate the degrees of probative value and unfair prejudice not only
for the item in question but for any actually available substitute as well.”) (emphasis
added).

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        The only argument that McCourt offers in support of his unfair prejudice claim
is that videos of child pornography, more so than still images, arouse emotions that
a jury is unable to set aside in reaching its verdict. While the videos were no doubt
unfavorable to McCourt, “the fact remains that [Rule 403] does not offer protection
against evidence that is merely prejudicial in the sense of being detrimental to a
party’s case. The rule protects against evidence that is unfairly prejudicial.” United
States v. Johnson, 463 F.3d 803, 809 (8th Cir. 2006) (internal quotation omitted)
(emphasis added). McCourt may be correct that videos are qualitatively different
from still images, but it is also true that a video is nothing more than a series of still
images shown in rapid succession to create the illusion of motion. Only seven videos
out of the more than 175 found on McCourt’s computer were shown to the jury and
each for only three seconds. Because any illusion of motion created by a mere three
seconds of video is surely minimal, we see little qualitative difference between the
limited publication of these seven videos and the publication of still images for longer
durations, as upheld in our prior cases. See Sewell, 457 F.3d at 844 (reversing
exclusion of more than 60 seconds of still images); Becht, 267 F.3d at 774 (upholding
39 images displayed and hard copies distributed to jurors). Moreover, unlike in Becht
and Sewell, which dealt with the defendant’s collection of still images, we see no
reason here that the Government must limit its evidence to still images because
McCourt did not so limit his collection.

       Given the limited number of videos and their minimal duration, we do not find
that their publication to the jury constitutes unfair prejudice. Consequently, because
McCourt failed to make a preliminary showing of unfair prejudice, we are not
required under Rule 403 to assess and weigh the probative value of the videos or the
alternative provided by McCourt’s stipulation.

      B.     The Alleged Discovery Violation

      McCourt argues that the Government violated Fed. R. Crim. P. 16 by failing to
disclose in a timely fashion changes in the opinion of its expert witness. Specifically,

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McCourt argues that the Government should have disclosed mistakes in Jacobson’s
report regarding: (1) the computer’s time-stamps; and (2) the method of calculating
the number of files downloaded onto McCourt’s computer. The thrust of McCourt’s
argument is that because the mistakes were not revealed until the direct and cross-
examination of Jacobson, he was denied the opportunity to address these errors both
in opening statement and in the cross-examinations of the witnesses that preceded the
expert.

       Because McCourt did not object in the district court, our review is for plain
error. United States v. Litrell, 439 F.3d 875, 881 (8th Cir. 2006). “We will reverse
under plain error review only if the error prejudices the party’s substantial rights and
would result in a miscarriage of justice if left uncorrected.” Id. at 881–82. “In most
cases, for an error to affect substantial rights it must affect the outcome of the
proceedings.” United States v. Davis, 452 F.3d 991, 994 (8th Cir. 2006).

       We believe McCourt’s substantial rights were not violated. Assuming that there
was a Rule 16 violation, McCourt was not prejudiced because his expert, Schnack,
had all the raw data on which Jacobson relied; Schnack discovered the calculation
mistake before trial; the Government did not rely on either mistake in its case-in-chief;
both mistakes were conceded by Jacobson on direct or elicited by McCourt on cross;
McCourt exploited both mistakes in closing argument; and—most importantly—the
mistakes were immaterial. The time-stamp mistake arguably revealed that three files
on McCourt’s computer were downloaded while he was at work, thereby supporting
his claim that someone else put the files on his computer without his knowledge. In
light of the remaining 300-plus videos and images uploaded during times for which
McCourt asserted no alibi, we find it hard to say that McCourt was prejudiced by the
Government’s failure to disclose Jacobson’s mistake, especially where the mistake
was uncovered by McCourt’s expert and its consequences argued to the jury by
McCourt’s counsel. Likewise, we are unable to discern the prejudice resulting from
the untimely disclosure that Jacobson ultimately agreed with Schnack’s method of
estimating that over 24,000 files were downloaded using the peer-to-peer programs.

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In sum, we see nothing that affected McCourt’s substantial rights, and in light of the
strong evidence admitted against him we cannot say that this alleged error affected the
outcome of the trial.

      C.     Denial of the Theory-of-Defense Instruction

       We review for an abuse of discretion the district court’s refusal to give a
specifically worded theory-of-defense instruction. United States v. Ellerman, 411
F.3d 941, 945 (8th Cir. 2005). We also consider whether “the instructions, taken as
a whole, fairly and adequately submitted the issues to the jury.” United States v. Katz,
445 F.3d 1023, 1030 (8th Cir. 2006). McCourt contends that the heart of his defense
was that a hacker placed the illegal images on his computer without his knowledge
and that he was entitled to have the jury instructed on this theory.

        First, we note that the identity of the person who uploaded the files onto
McCourt’s computer is not relevant to whether McCourt knowingly possessed the
files. Second, after reviewing the instructions in their totality, we are persuaded that
they fairly and adequately apprised the jury of its duty to find that McCourt was the
actual person who knowingly committed the offenses. Specifically, each of the
instructions given on the substantive offenses required that the jury find that the
“Defendant . . . knowingly” reproduced for distribution, received and possessed the
illegal material. (Emphasis added). The instructions for the inchoate offenses stated
that a “person may be found guilty of attempt if he intended . . .” and further explained
that this element must be “proved beyond a reasonable doubt as to the Defendant.”
(Emphasis added). Likewise, the instructions on intent and knowledge sufficiently
apprised the jury that it was the defendant’s state of mind that they must consider.
McCourt’s theory of defense was, in essence, that the Government had failed to carry
its burden of proving he committed the offenses. Thus, giving the proffered
instruction in this case would have duplicated the instructions outlining the elements
of the offense. See United States v. Serrano-Lopez, 366 F.3d 628, 637 (8th Cir. 2004)
(holding that a requested mere-presence instruction would have duplicated the

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instructions outlining the elements of the offense, the definition of possession, and the
burden of proof). On the whole, we find that the jury was adequately instructed that
it was the Government’s burden to prove the identity of the person who committed the
offenses beyond a reasonable doubt. We cannot say, therefore, that the district court
abused its discretion in failing to give McCourt’s proffered theory-of-defense
instruction.

       D.    Ex Post Facto and Due Process Challenges

      McCourt’s challenge to the application to him of the remedial portion of the
Booker decision is precluded by our decision in United States v. Wade, 435 F.3d 829,
831 (8th Cir. 2006).

III.   CONCLUSION

       For the foregoing reasons, we affirm the judgment of the district court.
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