NOT PRECEDENTIAL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 S tates District Court for the Middle District of Pennsylvania (D.C. C rim in al Action No. 1

- 12

- c r
- 0 0 2 5 2

- 001 ) District Judge: Honorable Christopher C. Conner

________________ Submitted under Third Circuit LAR 34.1(a)

on March 6 , 2015
Before: SHWARTZ , S CIRICA and ROTH , Circuit Judges

(Opinion filed June 15, 2015 )

________________ OPINION *

________________ RO TH , Circuit Judge

* This disposition is not an opinion of the full C ourt and pursuant to I.O.P. 5.7 does not constitute binding precedent.2

Lawrence Blevins was convicted of receipt of child pornography under both
18 U.S.C

. §§ 2252(a)(2) a nd 2252A(a)(2). He appeals his conviction s 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 jeop ardy 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 ruling s and judgment of conviction under 18 U.S.C. § 2252(a)(2)

. The g overnment 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 2 9, 2011, pursuant to a search warrant , police seized from Blevins’
bedroom his desktop computer , his laptop computer, and two external hard drive s containing child pornography

. The police had obtained the search warrant in connection
with an investigatio n of the use of peer
- to

- peer file sharing software called Frost W ire 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 ext ernal 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 bathr oom of the ho us e where he rented a n upstairs bedroom. The ho use was owned by Michael Cramer; one of the videos captured3

images of his adult daughter, Marlea, while another

— a splicing of two separate videos

— captured Cramer ’s fiancée, Brenda Blair

- Long

. Wh ile 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 an d 517 child pornog raphy videos

. The
Brenda Blair

- Long video was found on both external hard drives within a series of “ Ne w Folders ” that contained child pornography.
The g overnment sought to play the videos for the jury to demonstrate that they
were the t ype of video s that Bl evins would want to keep hidden. The g overnment proffered that the commingled file locations fo r different items that Blevins sought to keep hidden demonstrated knowledge and lack of accident regarding the child pornography. Blevins f

iled 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. B ecause 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 w ould be admitted subject to a limiting instruction , . At trial, Blevins rene wed his objection to the videos. T he g overnment made clear
that it intended to show videos in which all nudity was redacted

. D espite the c ourt’s prior order limiting the evidence to snapshots or freeze frames , the government proposed to4

show videos in which all nudity was r edacted. Blevins’ renewed objection went to the
earlier ruling on pr opensity, not to the redactions. T he c ourt 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 Frost wire only for
music and that the pornography downloads were performed by someon e else wi thout his permission

. He added that he often left his room unlocked. The g overnment 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

. I n closing arguments, the g overnment 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.5

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 act ed 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 limitati ons under Rule
403. 2 “A proper purpose is one that is ‘probative of a materi al issue other than
character.’ ” 3
The g overnment offered the video evidence to demonstrate knowledge and lack of
accident in the contents of the file folders . Knowledge and lac k 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 I t is clear that playing the video s to the jury was highly prejudicial. In ruling on the motion in limine , however, the District Court held that the videos were high ly probative on two of the g overnment’s points: 1) that
Blevins knew the contents of his “New Folder” tree and 2) that there was limited outside access to his computer. T he secretive nature of the home videos carries a strong
inference of Blevins’ knowle dge. 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 C ir. 2010) (quoting H uddleston 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. 403.6

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 appear ed in the other.
These videos were thus both highly prejudicial and highly probative . M easures were taken to reduce the prejudice, and the c ourt gave a limiting instruction to the jury.
Therefore , we conclude that the District Court did not abuse its discretion by find ing that the prejudice did not substantial ly 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 wa s the same. T he D istrict C ourt imposed concurrent sentences and supervised release of
identical duration , but it also imposed an additional fine, and special assessment

. Therefore, the sec on d conviction incre ase d his punishment. 7 The g overnment 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, w e will affirm the judgment of conviction under
18 U.S.C. § 2252(a)(2) , reverse the judgment of conviction under 18 U.S.C. §
2252 A (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 )

.