PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 10-4021

_____________

UNITED STATES OF AMERICA

v.

DAVID L. CUNNINGHAM,

 Appellant

_______________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 07-cr-298)

District Judge: Hon. Arthur J. Schwab

_______________

Argued

January 12, 2012

Before: McKEE, Chief Judge, FUENTES, and JORDAN, 

Circuit Judges.
2

(Filed: September 18, 2012)

_______________

Kimberly R. Brunson [ARGUED]

Lisa B. Freeland

Office of Federal Public Defender

1001 Liberty Avenue - #1500

Pittsburgh, PA 15222

 Counsel for Appellant

Rebecca R. Haywood [ARGUED]

David J. Hickton

Soo C. Song

Office of the United States Attorney

700 Grant Street - #4000

Pittsburgh, PA 15129

 Counsel for Appellee

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge.

David Cunningham appeals the September 27, 2010 

judgment of the United States District Court for the Western 

District of Pennsylvania sentencing him to 210 months’ 

imprisonment and 20 years’ supervised release based on his 

conviction for the receipt and distribution of child 
3

pornography, in violation of 18 U.S.C. § 2252(a)(2). At trial, 

the District Court allowed the government, over 

Cunningham’s objection, to show the jury two videos 

containing seven different video clips totaling approximately 

two minutes as a sample of the child pornography that gave 

rise to the charges. Cunningham contends that, because the 

Court permitted the videos to be shown without first viewing 

the videos to determine whether the danger of unfair 

prejudice substantially outweighed their probative value, the 

Court erred and his conviction must be reversed. We agree

that the District Court abused its discretion, not only by 

failing to review the videos prior to admitting them but also 

by allowing all of those videos to be shown to the jury,

because the highly inflammatory nature of two of them 

clearly and substantially outweighed their probative value

pertaining to the crimes charged. Those errors were not 

harmless, and we will therefore vacate and remand for a new 

trial.

I. Background

A. Factual Background

According to the government’s evidence, Cunningham 

lived at 7 Mingo Creek Road, Eighty Four, Pennsylvania, a 

residence that he shared with two older siblings, Sarah and 

Harold.1

 1 For simplicity, and meaning no disrespect by overfamiliarity, we will refer to Cunningham’s relatives by their 

first names.

 His mother, Doris, also resided at that residence 

until her death in March 2007. 
4

On June 19, 2007, Pennsylvania State Police Corporal 

Robert Erdely conducted an undercover online investigation 

of peer-to-peer file sharing networks.2

 During that 

investigation, Erdely discovered a computer with an IP 

address located in southwestern Pennsylvania sharing over

100 files on a peer-to-peer network known as Gnutella 

through a file sharing program known as LimeWire. After 

looking at hash values that were being shared by that 

computer, Erdely recognized, based on previous 

investigations, numerous files with a hash value suggestive of

child pornography.3

 2 Peer-to-peer file sharing networks “utilize[] the 

Internet to allow individuals to share data contained in 

computer files. [Peer-to-peer] file sharing can be used to 

share child pornography and trade digital files containing 

images of child pornography.” United States v. Stults, 575 

F.3d 834, 838 (8th Cir. 2009).

 Through a feature within Gnutella, 

Erdely was able to make a direct connection between his 

computer to the computer sharing the files, and downloaded 

six movies. All six of the movies contained prepubescent 

children engaging in sexual activity. After reviewing the 

downloaded video files, Erdely obtained a court order to 

identify the IP address that had shared the files in question,

and it was determined that the subscriber of the IP address 

3 Each hash value “is an alphanumeric string that 

serves to identify an individual digital file as a kind of ‘digital 

fingerprint.’ Although it may be possible for two digital files 

to have hash values that ‘collide,’ or overlap, it is unlikely 

that the values of two dissimilar images will do so.” United 

States v. Wellman, 663 F.3d 224, 226 n.2 (4th Cir. 2011) 

(citation omitted). 
5

was registered to Cunningham’s deceased mother, Doris, at 7 

Mingo Creek Road, Eighty Four, Pennsylvania.4 

Thereafter, a federal search warrant was obtained for 7 

Mingo Creek, and Erdely, along with another Pennsylvania 

state trooper and several FBI agents, executed the warrant on 

July 17, 2007. Although Cunningham was not at his 

residence when the investigators arrived, they identified 

themselves to Sarah and Harold, and explained to them the 

nature of the investigation. Sarah informed the investigators

that the only working computer in the residence belonged to 

Cunningham and was located in his bedroom. Erdely and the 

agents then searched Cunningham’s bedroom, where they 

found mail and paperwork addressed to Cunningham. Erdely 

seized the computer and undertook a preliminary review of its

hard drive. During that review, Erdely found that 36 out of 

212 shared files contained child pornography. 

Cunningham returned to the residence while the search 

was ongoing. He admitted to installing LimeWire on his 

computer, and that he had used LimeWire to search for 

pornography in general. According to testimony from the 

FBI agents at trial, Cunningham also admitted that he had 

downloaded child pornography using LimeWire, had been 

looking at child pornography on the computer and on 

LimeWire since 2006, and had used search terms like “child,” 

“kiddy,” and “PTHC” [pre-teen hardcore] to download files 

 4 The e-mail address associated with the internet 

account that the computer user chose was 

“reptilewild@comcast.net.” The record indicates that, 

beginning in 1998, Cunningham had been involved in the 

care, breeding, trade, and exhibition of reptiles.
6

from LimeWire. There was also testimony that, after Erdely 

showed Cunningham the list of all of the file names on the 

seized computer, Cunningham acknowledged that those files 

were from his shared directory, and he estimated that child 

pornography comprised 20 to 30 percent of the material on 

his computer.5

 

Forensic analysis of the computer found in 

Cunningham’s bedroom revealed that 46 of the 212 files in 

the shared directory contained child pornography. In 

addition, a search of a folder that contained files that were not 

completely downloaded revealed 11 more videos that 

contained child pornography. A list of search terms, many of 

which referred to child pornography, was also recovered from 

the computer. Subsequent to that analysis, Cunningham was 

arrested and charged in a three count indictment for receiving, 

possessing, and distributing child pornography. He pled not 

guilty to all charges. 

B. Procedural History

1. Pretrial Proceedings

Prior to trial, Cunningham filed a Motion in Limine

Concerning Pornographic Images and File Names. In that 

motion, he requested, pursuant to Federal Rule of Evidence 

403,6

 5 Cunningham later testified to viewing child 

pornography in 2001 and 2006, but denied telling the 

investigators that he had downloaded child pornography or 

searched for it. 

an order precluding the government from showing the 

6 Federal Rule of Evidence 403 provides: “The court 
7

jury any of the child pornography videos recovered from the 

computer. Cunningham argued that, because he was 

stipulating that the government exhibits constituted child 

pornography, the probative value of any videos was 

substantially decreased. The District Court issued an order 

denying Cunningham’s motion, allowing the government to 

publish “representative samples of the Child Pornography 

instead of the entire ‘collections,’ as well as the file names of 

the various files in the ‘collection.’” (App. at 1.)7

 The

Court’s order also noted that “the parties may (but are not 

required to) stipulate that the child pornography evidence 

constitutes child pornography for the purposes of the 

Indictment.” (Id.) Following the Court’s direction to “meet 

in an attempt to stipulate to a Joint Cautionary Jury 

Instruction” (id.), the parties agreed to the following 

stipulation:

[T]hat the video files obtained from IP address 

71.206.239.202 on June 19, 2007, constitute 

visual depictions of real children under the age 

of 18 engaging in sexually explicit content. The 

parties further stipulate and agree that the video 

files recovered from the computer at 7 Mingo 

Creek Road on July 17, 2007, constitute visual 

 

may exclude relevant evidence if its probative value is 

substantially outweighed by a danger of one or more of the 

following: unfair prejudice, confusing the issues, misleading 

the jury, undue delay, wasting time, or needlessly presenting 

cumulative evidence.” Fed. R. Evid. 403.

7 Citations to “(App. at [page number])” are to the 

Appellant’s four volume appendix in the present appeal. 
8

depictions of real children under the age of 18 

years of age engaging in sexually explicit 

conduct.

(Id. at 196-97.) 

Five days later, Cunningham filed a Motion to Limit 

Evidence of Child Pornography. That motion, which noted 

that the government had provided defense counsel with the 

video clips that it intended to introduce at trial, described 

those proposed video excerpts in graphic detail:

8

These clips include graphic and haunting 

images of child pornography. Specifically, they 

include a close up of an adult woman licking a 

very young female child’s genitalia – so young, 

in fact, the child appears to be a toddler; videos 

of penetration; several videos depicting children 

tied up and/or blindfolded, including images 

where a young, prepubescent girl was 

penetrated by an adult male while her ankles

and wrists appeared to be bound to a table. 

Several videos showed the faces of the children. 

In every image where a face is shown, the body 

 8 In many, perhaps most, opinions addressing child 

pornography prosecutions, it is possible to resolve the legal 

issues without subjecting the reader to the graphic and 

disturbing details of the pornography. Because of the 

character of the issues confronting us here, however, we 

cannot avoid the details. In fact, it will be necessary to 

provide more graphic detail later herein. See infra note 10

and accompanying text.
9

(specifically, breasts, genitalia, and lack of 

pubic hair) clearly, and unequivocally, proves 

that the image portrays a child. In one, a young 

girl is seen performing oral sex on an adult 

male, who ejaculates on her face, which is 

openly displayed for the camera.9

 9 The government did not provide a description of the 

proposed video excerpts to the District Court when arguing to 

the Court that those excerpts should be admitted. The only 

descriptions that the government had provided to the Court of 

any of the videos giving rise to the charges was in its

response to a pretrial motion to suppress filed by 

Cunningham. In that response, the government gave brief 

descriptions of the six videos that Erdely had downloaded 

from the IP address during his undercover investigation on 

June 19, 2007. The descriptions provided to the Court were 

as follows (without the explicit file names):

[A] pre-pubescent female performs oral sex on 

an apparent adult male, and engages in sexual 

intercourse with an adult male;

...

[A] pre-pubescent female and male child 

engage in sex acts upon each other. The 

children are appear [sic] to be 10 years old;

...

[A] female child approximately 6 years-old 

performs oral sex on an adult male;

...

[A]n adult female performs oral sex on an infant 
10

(Id. at 201 (internal footnote omitted).) Cunningham argued 

that those “images not only reveal children engaging in 

sexually explicit conduct; they are obscene, violent, and 

humiliating, necessarily conjuring feelings of disgust and 

blind rage.” (Id.) Cunningham objected to the government’s 

video excerpts and proposed that, if the Court was going to 

allow the government to introduce those exhibits, they should 

be limited in four ways: (1) only still images of any video 

should be shown; (2) no images, whether still or part of a 

video, should display bondage or actual violence, including 

the penetration of prepubescent children by adults; (3) no 

audio should accompany any of the video; and (4) the faces of 

any minors should be obscured from all images. 

In response to that motion, the government agreed not 

to use audio in the video excerpts, but it “strenuously 

 

child approximately 2 years old;

...

[A]n apparent 12 year-old female is seen in the 

video dancing. The child pulls down her pants 

exposing her vagina and then pulls up her shirt 

exposing her breasts. The child appears to be 

pre-pubescent;

...

[A]n apparent 6 year-old male child (prepubescent) engages in sexual intercourse with 

an adult female.

(S. App. at 11-13.) As discussed later herein, excerpts from 

some of those six videos were eventually shown to the jury.
11

object[ed] to the [other] limitations urged by [Cunningham]

as efforts to sanitize, distort and mitigate the force of 

evidence that constitutes the very evidence of the offenses 

charged.” (Id. at 222.) The government argued that, even 

with the stipulation, it bore “an extremely high burden to 

establish ... that the defendant knowingly distributed, 

received and possessed these images, that he was aware of 

their character as child pornography, [and] that he was aware 

that the images depicted real minors engaging in sexually

explicit conduct.” (Id. at 223.) Therefore, the government 

contended that “it would be unfair to say that, because the 

defendant offered to stipulate to some of what the government 

needs to prove, the government should be hindered in its 

ability to satisfy its remaining obligation of proof.” (Id. at

223-24.)

In specifically arguing against the omission of excerpts 

that portray bondage and actual violence, the government 

noted that “[t]he average person ... is not aware ... [that] the 

content at issue ... may contain depictions of sadomasochistic sexual abuse,” and that child pornography, in 

general, contains “frequent depictions of the documented 

sexual assault of children by adults with whom they come 

into contact.” (Id. at 226.) Thus, the government contended 

that the jury should be allowed to see such depictions to 

“fully appreciate the nature of child pornography crimes, 

which necessitates consideration of the images themselves.” 

(Id. at 227.) The government represented that it had “preselected clips of videos that [were] representative of the full 

collection,” and “propose[d] to admit and publish 7, severalsecond video clips, from in excess of 50 such videos, some of 

which were originally as long as 30 minutes.” (Id. at 227.) 

The government asserted that it had been responsive to 
12

Cunningham’s concerns by “agree[ing] to omit one of two 

videos which depict[ed] sado-masochistic sexual abuse of 

minors.” (Id.)

Relying only on the papers submitted, the District 

Court denied Cunningham’s motion with the exception of 

granting his request – already agreed to by the government –

that no audio be used in the video images presented. The 

Court held that the government was entitled to prove its case 

in the manner that it chose, although the Court noted its hope 

that the government would do so “in a condensed format.” 

(Id. at 4.) Additionally, the Court found that “still images 

[were] not representative of the actual evidence in this case.” 

(Id.) As to Cunningham’s other requests, including for a 

prohibition of images that depicted actual violence, the Court 

decided it would not grant them because they would “restrict

the actual character of the evidence.” (Id. at 5.) In 

conclusion, the Court, without having watched the video 

excerpts, held that, “[a]fter conducting a balancing of the 

evidence under [Rule 403], the probative value of [the] 

evidence [was] not substantially outweighed by its prejudicial 

effect.” (Id.) 

At the final pretrial conference held on April 8, 2010, 

Cunningham advised the Court of his intent to file a motion 

for reconsideration of the video excerpts’ admissibility, and 

asked the Court to review the excerpts prior to ruling. The 

Court immediately denied that motion, saying that counsel 

“had plenty of time to file motion after motion, which 

[counsel had] done.” (Id. at 253.) The Court noted that it had 

“ruled again and again and again; and [was] sorry [counsel] 

[did not] like it, but ... [counsel] [could not] come in every 

day and give us another snapshot and more motions, and the 
13

next day another snapshot and more motions.” (Id.) 

However, notwithstanding that oral ruling, the Court said that 

if Cunningham wanted to file a motion, he needed to do so by 

4:00 p.m. that day. 

Cunningham complied with that directive and filed the 

motion later that day. In the motion, Cunningham asserted 

that his defense was that someone else had downloaded, 

possessed, and distributed the child pornography at issue, and,

in addition to the stipulation already made, he agreed that 

whoever possessed, received, and distributed those images 

would know that they depicted real children engaging in 

sexually explicit activity. As a result, he argued there was 

little value in presenting the video excerpts, especially 

considering “the uniqueness and significance of this type of 

contraband.” (Id. at 265.) Therefore, Cunningham urged the 

Court to rule that the video excerpts were inadmissible, or 

alternatively, subject to further limitations. Once again, 

Cunningham requested that the Court view the video excerpts 

prior to making a ruling on their admissibility. 

On April 12, 2010, the Court denied Cunningham’s 

motion. The Court stated that Cunningham “cite[d] no case 

precedent for its proposition that the child pornography must 

be viewed by the Court or that it is a necessary exercise of the 

Court’s discretion to do so.” (Id. at 17.) The Court found 

that “the descriptions [of the video excerpts] [were] sufficient 

for [it] to rule [on the past and pending motions], since the 

descriptions [were] quite telling of the images and their 

graphic nature.” (Id. at 17-18.) Thereafter, Cunningham 

proceeded to trial. 
14

2. Jury Trial

a) Voir Dire

Prior to voir dire, Cunningham requested that the 

District Court advise all potential jurors that, if selected, they 

would “see a movie that shows a prepubescent minor being 

sexually penetrated by an adult,” and “see graphic images of 

children, their genitals, and videos of illegal sexual acts, 

including oral sex, sexual intercourse, and graphic, violent,

sexual images.” (Id. at 170-71.) The Court did not adopt that 

preview of the evidence. Instead, during voir dire, the Court 

provided all potential jurors with the following information 

and asked them the following question:

[T]his case involves an accusation that the 

Defendant received, possessed and distributed 

child pornography. During this trial you will be 

shown child pornography including graphic 

images and hear descriptions of computer files 

including graphic and offensive file names 

which will certainly be disturbing to most if not 

all of you.

Regardless of your feelings on this subject 

matter and the graphic nature of the material 

presented, are you able to render a fair and 

impartial verdict based solely on the evidence 

presented in this court and my instructions to 

you on the law? 

(Id. at 302-03.) After hearing that, several jurors responded 

that they might have difficulty being impartial, and, as a 
15

result, were excused for cause. When counsel and the Court 

further questioned other jurors individually at sidebar

regarding answers they had given about their impartiality, 

more detailed information on the pornography was revealed 

and a few of those jurors were subsequently excused for 

cause. One potential juror, after learning that the videos 

would show children under the age of eight, determined that it 

would be difficult to be impartial. Another potential juror 

was excused for cause after she indicated her distress at the 

revelation that the videos would include portrayals of children 

as young as toddlers being molested. 

b) Video Excerpts

During trial, over Cunningham’s objection, the 

government offered into evidence, and played for the jury,

two separate videos containing a total of seven video excerpts 

of the child pornography either obtained from the IP address 

registered to Cunningham’s deceased mother or recovered 

from the computer seized from Cunningham’s bedroom. The 

first video, approximately a minute in length, contained 

excerpts from three of the six videos that Erdely had obtained 

from the IP address on June 19, 2007. The following are 

descriptions of those video excerpts:

10

 10 Although the government provided us with these 

very detailed descriptions of the seven video excerpts in its 

appellate brief, it did not provide any description of the 

excerpts to the District Court when it was arguing that the 

video excerpts should be admitted. See supra note 9. The 

summary of the video excerpts furnished to the District Court 

by Cunningham at the time was also graphic, see supra note 8

and accompanying text, but it did not contain the level of 
16

[Excerpt 111

...

(20 seconds of total file length of 

2:16):] The video depicts an adult woman 

licking and digitally manipulating the genitals 

of a very young appearing pre-pubescent child. 

At the end of the clip, the same woman is 

shown on her back, with a nude male prepubescent child facing her.

[Excerpt 2 (27 seconds of total file length of 

1:30):] This video depicts two pre-pubescent 

boys engaging in vaginal intercourse with an 

adult woman. The woman is then depicted 

kissing their penises. A clothed adult male is 

then shown, and one of the pre-pubescent boys 

is seen unzipping the adult male’s pants. In the 

next clip, which is of poor quality, the prepubescent child appears to be sucking on the 

adult male’s penis while being coached by the 

adult female.

 

detail that the government has provided to us. To say that the 

government’s descriptions of the video excerpts are 

loathsome is an understatement. However, we reproduce the 

full description of each video excerpt because, as mentioned 

earlier, supra note 8, an understanding of the aggregate effect 

of the content contained in each video excerpt bears on our 

holding in this case.

11 For ease of reference to certain excerpts that are 

discussed later herein, we assign a number to each of the 

seven video excerpts.
17

...

[Excerpt 3 (18 seconds of total file length of 21 

seconds):] A prepubescent female child is 

shown pulling her pants to expose her nude 

genitalia, which is undeveloped and lacks pubic 

hair. She then pulls up her shirt to reveal her 

breasts, which are undeveloped. Another child 

can be seen in the background, also exposing 

nude breasts which are undeveloped, the child 

could be a male or female child.

(Appellee’s Br. at 16.)

The second video, also approximately a minute in 

length, contained excerpts from four of the more than forty 

videos seized from the computer found in Cunningham’s 

bedroom following the execution of the search warrant. 

Those excerpts contained the following depictions:

[Excerpt 1 (17 seconds of total file length of 

3:23):] Prepubescent female child is shown 

dropping skirt, and exposing her nude genitalia. 

This child is then depicted nude with rope 

encircling her breasts and going up to her neck. 

She is standing and appears to be suspended 

from a ceiling with her arms above her. An 

adult male stands behind her. He is 

aggressively manipulating her genitalia while 

masturbating himself. Child is then depicted 

with thicker rope retraining [sic] her, as she is 

reclined and tied to a bench. Rope binds her 

legs and midsection. She has a mask on her 

face. An adult male stands above her, and 
18

manipulates her genitalia. The child flinches. 

The adult male stands over her and inserts his 

penis into her mouth.

...

[Excerpt 2 (20 seconds of total file length of 

14:12):] Prepubescent nude female child 

performs oral sex on an adult male, while 

straddling him from above. Her genitals appear 

to be in the area of his head or face. Child then 

shown lying beside with [sic] the adult male, 

with her hand in [sic] his erect penis. Video 

then depicts a close-up of the child’s genitalia, 

she is on all fours peering back between her 

legs at the camera. The adult male is 

manipulating her genitals for the camera with 

his thumb. Adult male is then shown 

masturbating, the child is standing or kneeling 

with her mouth near his penis. There are 

multiple shots of the child handling the adult 

male’s penis. The final clip shows the child, 

nude with ejaculate on her face and chest as she 

looks at the camera.

...

[Excerpt 3 (17 seconds of total file length of 

2:55):] This video depicts a very young 

(perhaps 3-5 years of age) nude female child 

being suspended upside down, while an adult 

male vaginally penetrates her with his penis. 

The screen then depicts a close up of an adult 

male penis being forced into a child’s vagina 
19

while the child is held upside-down by the adult 

male. The video finally depicts a close up view 

of an adult male anally penetrating the child 

from behind. The adult male withdraws his 

penis, and ejaculates upon the back of the child.

...

[Excerpt 4 (14 seconds of total file length of 21 

seconds):] A female prepubescent child pulls 

down her pants while facing a webcam and 

displays her buttocks and genitals.

(Id. at 17-18.) Both before and after each of the video 

excerpts were played for the jury, the District Court read a 

cautionary instruction, which directed the jury to view the 

images in a fair and impartial manner. 

3. Conviction and Sentencing 

The jury convicted Cunningham on all counts. 

On September 27, 2010, the District Court sentenced 

Cunningham to 210 months’ imprisonment for receiving child 

pornography in violation of 18 U.S.C. § 2252(a)(2) (“Count 

One”), and 120 months’ imprisonment for distributing child 

pornography in violation of 18 U.S.C § 2252(a)(2) (“Count 

Three”), to be served concurrently. The District Court 

vacated Cunningham’s conviction for possessing child 

pornography in violation of 18 U.S.C. § 2252(a)(4) (“Count 

Two”) due to double jeopardy concerns, and dismissed that 

count without prejudice. The Court also imposed a 20-year 

term of supervised release, which included a condition 
20

prohibiting Cunningham from accessing the internet during 

that period except for employment purposes.12

Cunningham timely appealed his conviction.

13

 12 Specifically, that condition provided:

The defendant is permitted to possess and/or 

use a computer and cell phone, however, is 

prohibited from accessing the Internet through 

any device. This prohibition includes using any 

Internet Service Provider, bulletin board system 

or any other public or private computer network 

or service. If the defendant’s employment 

requires the use of a computer and/or access to 

the Internet, the defendant is permitted Internet 

access for this limited purpose, and the 

defendant shall notify the employer of the 

nature of his or her conviction (charge). The 

probation / pre-trial services officer shall 

confirm the defendant’s compliance with this 

notification requirement.

(App. at 110.)

13 On August 31, 2010, following Cunningham’s 

conviction but prior to his sentencing, the Office of the Public 

Defender for the Western District of Pennsylvania (“OFPD”) 

moved to disqualify the District Judge from presiding over 

this case and 20 other pending cases based on comments 

made by the District Judge in two unrelated cases where the 

OFPD served as defense counsel. Without recounting the 

tortuous history of those two cases, suffice it to say that the 

District Judge initially disqualified himself from 

Cunningham’s case. On September 20, 2010, however, after 
21

II. Discussion14

Cunningham argues that the Court erred in both failing 

to view the video excerpts before ruling on their admissibility 

and in failing to exclude or limit them, given his stipulation to 

their criminal content. He further contends that the Court 

abused its discretion during voir dire by refusing to provide 

potential jurors with more detail describing the videos that 

would be presented during trial.15

 

the government filed a motion for reconsideration, the 

District Judge changed course and decided to continue to 

preside over Cunningham’s case. On July 31, 2012, after 

Cunningham appealed to us and after we heard oral argument, 

the District Judge entered an order taking his original position 

that recusal was warranted and directing that, if we were to 

remand Cunningham’s case for a new trial or re-sentencing, it 

should be assigned to another judge. In light of that order, the 

recusal issue is moot.

 We address those 

arguments in turn.

14 The district court had jurisdiction pursuant to 18 

U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. 

§ 1291 and 18 U.S.C. § 3742(a).

15 Cunningham also challenges the District Court’s 

disqualification ruling which, as noted, is now moot. See 

supra note 13. Cunningham additionally argues that the 

Court plainly erred by imposing, as a condition of his 20-year 

supervised release, a complete ban on internet access except 

for work purposes. Since we are vacating Cunningham’s 

conviction, we need not directly address that contention. We 

do note, however, that the internet restriction imposed upon 

Cunningham is broader than the one that we found 
22

A. Admission of Video Excerpts Under Rule 403

We review a district court’s ruling to admit or exclude 

evidence under an abuse of discretion standard. United States 

v. Green, 617 F.3d 233, 239 (3d Cir. 2010). “An abuse of 

discretion occurs only where the district court’s decision is 

‘arbitrary, fanciful, or clearly unreasonable ... .’” Id.

(quoting United States v. Starnes, 583 F.3d 196, 214 (3d Cir. 

2009)).

1. Procedural Error

Cunningham contends that the District Court abused 

its discretion when it failed to view the government’s 

proposed video exhibits before ruling on their admissibility. 

The government responds that the District Court had no duty 

to view the video excerpts because it understood the content 

and character of the excerpts that the government intended to 

offer from the summary that Cunningham had provided to the 

Court.16

 

problematic in United States v. Albertson, 645 F.3d 191 (3d 

Cir. 2011), and we urge district courts, when imposing similar 

conditions, “to fashion a ‘comprehensive, reasonably tailored 

scheme,’” id. at 200 (quoting United States v. Miller, 594 

F.3d 172, 188 (3d Cir. 2010)).

 We agree with Cunningham that, under the 

circumstances of this case, the Court abused its discretion by 

admitting the videos without first viewing them.

16 The government also reminds us that, prior to the 

motions in limine, it had told the Court about some of the 

videos in connection with Cunningham’s suppression motion. 

See supra note 9.
23

While the question presented for resolution has seldom 

been addressed, we find guidance in decisions from two of 

our sister circuits. In United States v. Curtin, the defendant 

was charged with traveling across state lines with the intent to 

engage in a sexual act with a minor and using an interstate 

facility to attempt to persuade a minor to engage in sexual 

acts. 489 F.3d 935, 937 (9th Cir. 2007) (en banc). The only 

disputed issue was whether Curtin intended to engage in sex 

acts with a minor or with an adult who was pretending to be a 

child having incestuous sex with her father. Id. at 938-39. To 

prove Curtin’s unlawful intent, the government offered five 

stories that had been found on his personal digital assistant, 

all of which involved sex between fathers and their child 

daughters. Id. at 942. Although Curtin objected to the 

evidence as inadmissible propensity evidence under Rule 

404(a),17 the district court, without reading all of the stories, 

agreed with the government that the stories in their entirety 

were, with a limiting instruction, admissible under Rule 

404(b).

18

 17 Subject to exceptions set forth in Rule 404(a)(2) and 

(3), Rule 404(a)(1) provides that “[e]vidence of a person’s 

character or character trait is not admissible to prove that on a 

particular occasion the person acted in accordance with the 

character or trait.” Fed. R. Evid. 404(a)(1).

 Id. The district court had read two of the stories in 

18 Rule 404(b)(1) provides 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.” Fed. R. Evid. 

404(b)(1). However, Rule 404(b)(2) provides that evidence 

otherwise inadmissible under Rule 404(b)(1) “may be 

admissible for another purpose, such as proving motive, 
24

full, but it had only read “snippets” of the other three and 

relied on an offer of proof from the government for those 

stories. Id. at 956.

The Ninth Circuit reversed, “hold[ing] as a matter of 

law that a court does not properly exercise its balancing 

discretion under Rule 403 when it fails to place on the scales 

and personally examine and evaluate all that it must weigh” 

Id. at 958. It found that “[t]he inflammatory nature and 

reprehensible nature of [those] abhorrent stories, although 

generally relevant, is such that a district court making a Rule 

403 determination must know precisely what is in the stories 

in order for its weighing discretion to be properly exercised 

and entitled to deference on appeal.” Id. at 957. The Ninth 

Circuit stated that “[t]he record [in Curtin] demonstrate[d]

why [that] must be the rule,” since a portion of one of the 

stories that the government offered was clearly inadmissible 

as it was “both irrelevant and dangerously prejudicial.”19

 

opportunity, intent, preparation, plan, knowledge, identity, 

absence of mistake, or lack of accident.” Fed. R. Evid. 

404(b)(2).

 Id. 

The Ninth Circuit noted that “[r]elying only on the 

descriptions of adversary counsel [was] insufficient to ensure 

that a defendant receives the due process and fair trial to 

which he is entitled under our Constitution.” Id. at 958. 

Additionally, “given the depraved and patently prejudicial 

19 Specifically, the Ninth Circuit pointed to one of the 

exhibits that contained “a particularly graphic description of 

[a minor female] engaged in sexual acts of mutual oral 

copulation with, and masturbation of, a dog.” Curtin, 489 

F.3d at 957. 
25

nature of the irrelevant evidence,” the court rejected the 

government’s assertion that the error was harmless.20 Id.

 20 The government argues that Curtin is 

distinguishable for several reasons: because a portion of one 

of the stories there was clearly inadmissible while the video 

excerpts here were, in fact, clearly admissible; because the 

evidence in Curtin was admitted under Rule 404(b)(2) and 

thus was extrinsic to the crimes charged, whereas here the 

video excerpts formed the basis of the crimes charged; and 

because the district court in Curtin did not have an 

understanding of all of the material in the stories, whereas 

here the Court understood the nature of the video excerpts. 

As we will discuss in greater detail infra, we disagree with 

the government’s first contention. Regarding the second 

contention, although we recognize that the evidence here was 

offered to prove the mental state of the underlying crimes 

charged, as opposed to being offered to prove intent under 

Rule 404(b)(2), Curtin’s holding was not contingent on 

whether the challenged evidence was intrinsic or extrinsic to 

the crimes charged; rather, no matter the basis under which 

the evidence is being offered, it held that “[o]ne cannot 

evaluate in a Rule 403 context what one has not seen or read.” 

Curtin, 489 F.3d at 958. We also disagree with the 

government’s third assertion because the district court in 

Curtin had at least read two of the five stories and had offers 

of proof on the other three (albeit from adversary counsel). 

Here, even though the District Court had a description of the 

video excerpts from Cunningham (albeit in less detail than the 

government has provided to us on appeal), the District Court 

refused to watch any of the video excerpts.
26

In United States v. Loughry, the defendant was 

convicted of advertising and conspiracy to advertise child 

pornography, and distributing and conspiracy to distribute 

child pornography through an online cache.21 660 F.3d 965, 

967-68 (7th Cir. 2011). However, Loughry was not charged 

with possession of child pornography. Id. at 968. To prove 

intent and motive to join the conspiracy, the government 

introduced, pursuant to Rule 414,22

 21 In fact, the online depository was called the 

“Cache.” Id. at 967. “[T]he purpose of the Cache was to 

provide its members with access to child pornography 

consisting of the lascivious exhibition of the genitals of minor 

girls.” Id. at 968. 

evidence of photographs 

and videos of child pornography found on Loughry’s home 

computer. Id. at 969. Though some of the images were 

similar to those posted on the online cache, other images, 

classified as “hard core,” id. at 969, “were more inflammatory 

and were prohibited by Cache ‘rules,’” id. at 968. 

Additionally, the government did not charge Loughry with 

distributing or advertising any of those images submitted into 

22 Rule 414(a) provides that, “[i]n a criminal case in 

which a defendant is accused of child molestation, the court 

may admit evidence that the defendant committed any other 

child molestation. The evidence may be considered on any 

matter to which it is relevant.” Fed. R. Evid. 414(a). “The 

term ‘child molestation’ encompasses ... the distribution, 

advertising, or possession of child pornography.” Loughry, 

660 F.3d at 969 (citing Rule 414(d)). “Rule 414 constitutes 

an exception to the rule that evidence of prior bad acts is not 

admissible to show a defendant’s propensity to commit the 

offense charged.” Id.
27

evidence. Id. Nonetheless, the district court found that those 

images were admissible under Rule 414, id. at 968, even 

though it did not review the disputed evidence before 

admitting it, id. at 970. The district court readily 

acknowledged as much, stating that it was “at somewhat of a 

disadvantage not knowing exactly what items and depictions 

... [were] on [the] [g]overnment’s [exhibits],” but still relied 

on the government’s descriptions of the contested evidence 

when making its Rule 403 determination. Id.

The Seventh Circuit reversed, “emphasiz[ing] that a 

district court, in exercising its discretion under Rule 403, 

must carefully analyze and assess the prejudicial effect of 

challenged evidence.” Id. at 971 (citations omitted). The

Seventh Circuit did make clear, however, that an exception to 

reviewing contested evidence might exist in “cases where the 

probative value of the evidence is so minimal that it will be 

obvious to the court that the potential prejudice to the 

defendant substantially outweighs any probative value the 

evidence might have.” Id. (citing United States v. GonzalezFlores, 418 F.3d 1093, 1098 (9th Cir. 2005) (“Where the 

evidence is of very slight (if any) probative value, it’s an 

abuse of discretion to admit it if there’s even a modest 

likelihood of unfair prejudice or a small risk of misleading the 

jury.”)). “The safest course,” the Seventh Circuit advised, “is 

for the court to review the contested evidence for itself.” Id. 

Applying those principles, the Loughry court held that:

The challenged videos 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 
28

defendant committed the charged crime. Given 

the inflammatory nature of the evidence, the 

district court needed to know what was in the 

photographs and videos in order for it to 

properly exercise its discretion under Rule 403. 

Without looking at the videos for itself, the 

court could not have fully assessed the potential 

prejudice to Loughry and weighed it against the 

evidence’s probative value.

Id. at 972. The Seventh Circuit thus held that “the district 

court abused its discretion under Rule 403 when it failed to 

review the challenged videos before they were admitted in 

evidence.” Id.

We note that, although the challenged evidence in 

Loughry did not form the basis of the underlying crimes, as 

did the videos in this case, the Loughry court, like the Curtin

court, did not make a distinction between extrinsic and 

intrinsic evidence. Rather, the Loughry court focused on the 

inflammatory character of the evidence and concluded that

“the district court needed to know what was in the 

photographs and videos in order for it to properly exercise its 

discretion under Rule 403.” Id. The same rationale applies 

here. Because of the deeply disgusting, inflammatory 

character of the videos, the District Court “could not have 

fully assessed the potential prejudice” to Cunningham “and 

weighed it against the evidence’s probative value” without 

looking at the video excerpts themselves. Id. Although the 

Court arguably had more vivid descriptions of some of the 

video excerpts than the district court did in Loughry, see id. at 

972 (“Few if any, details were provided to the court when it 

was deciding whether to admit the evidence.”), having those
29

descriptions should have heightened the District Court’s 

awareness of the need to see the videos to assess their 

prejudicial impact before it decided to admit them.

23

In sum, we find both Curtin and Loughry persuasive. 

We agree that a district court should know what the 

challenged evidence actually is – as opposed to what one side 

or the other says it is – “in order for [the court’s] weighing 

discretion to be properly exercised and entitled to deference 

on appeal.” Curtin, 489 F.3d at 957. We also agree that there 

may be instances where a district court can properly decline

to view challenged evidence when it is obvious to the court 

that the danger of unfair prejudice from such evidence 

substantially outweighs any probative value that it might 

have. Loughry, 660 F.3d at 971.

Thus, we conclude that, speaking generally, a district 

court should personally examine challenged evidence before 

 23 We emphasize that there was a stipulation in place 

here establishing the criminal content of the videos, and that 

too needed to be on the scales when assessing the probative 

value of the videos against the danger of unfair prejudice. 

See infra Part II.A.2. We do not imply that a defendant can 

stipulate away the prosecution’s right to determine how to 

prove its case. See Old Chief v. United States, 519 U.S. 172, 

183 n.7 (1997) (noting defendant cannot establish that district 

court abused its discretion “by a mere showing of some 

alternative means of proof that the prosecution in its broad 

discretion chose not to rely upon”). But the existence of a 

stipulation of the kind in place here is a factor in the Rule 403 

balancing that district courts must undertake.
30

deciding to admit it under Rule 403.24

 24 The type of evidence at issue will determine what 

level of examination is in order. Because of the impact that 

visual images may have on a jury, if that type of evidence is 

challenged on Rule 403 grounds, courts should be prepared to 

view it before putting it before a jury. Cf. United States v. 

Martin, 746 F.2d 964, 972 (3d Cir. 1984) (citation omitted) 

(“Eyewitness testimony is often dramatic and convincing, but 

its effectiveness and convincing power are almost negligible 

in comparison with a film or videotape of actual events. 

When the videotape shows a crime actually being committed, 

it simply leaves nothing more to be said.”); United States v. 

Hands, 184 F.3d 1322, 1329 (11th Cir. 1999) (finding that 

district court abused discretion in admitting photographs of 

spousal abuse over a Rule 403 objection in part because those 

“photographs impressed the fact of the domestic abuse on the 

jury’s consciousness with dramatic, graphic impact, making 

clear the seriousness of the incident”); United States v. LopezMedina, 461 F.3d 724, 749 (6th Cir. 2006) (“Mug shots, in 

particular, are highly prejudicial, and their visual impact can 

leave a lasting impression on a jury.”).

 However, as Loughry

reflects, while that is the best course, see 660 F.3d at 971 

(“The safest course, however, is for the court to review the 

contested evidence for itself.”), it may be that, when a court 

has been provided with a sufficiently detailed description of 

the challenged evidence and decides to reject the evidence, it 

need not undertake that further review. In other words, if, 

after reviewing a detailed description of the evidence, it is 

obvious to the court that the probative value of the evidence is 

so minimal that it is substantially outweighed by the danger 

of unfair prejudice, a court need not personally examine it. 

See id. This ought not be seen as an invitation to freely deny
31

the admission of evidence that no one of ordinary sensibilities 

would want to review. Any such approach would, of course,

be out of keeping with the district court’s obligation, however 

uncomfortable, to weigh the potential probative and 

prejudicial impact of evidence, while considering the 

legitimate interests of both the prosecution and the defense.

The video excerpts here included “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.” Id. at 972. Although we 

accord district courts broad discretion in making a Rule 403 

determination, that discretion is not unfettered. “The 

hackneyed expression, ‘one picture is worth a thousand 

words’ fails to convey adequately the comparison between 

the impact of the ... portrayal of actual events upon the 

viewer of the videotape and that of the spoken or written 

word upon the listener or reader.” United States v. Martin, 

746 F.2d 964, 971-72 (3d Cir. 1984) (citation omitted). The 

District Court’s refusal here to view the video excerpts to 

assess their prejudicial impact and instead, over objection,

rely only on written descriptions prior to admitting them, was

“arbitrary ... [and] unreasonable.” Green, 617 F.3d at 239 

(citation and internal quotations marks omitted). 

2. Substantive Error

Cunningham also argues that the District Court abused 

its discretion under Rule 403 by not limiting or excluding the 

video excerpts. Because the government had alternative 

means to present its case, including “witness testimony, still 

images, shorter video clips, [his] proffered stipulations, 
32

and/or the actual stipulations” (Appellant’s Reply Br. at 22),

Cunningham asserts that the probative value of the video 

excerpts was substantially outweighed by the danger of their 

unfair prejudice. 

In the main, the government is “entitled to prove its 

case free from any defendant’s option to stipulate the 

evidence away.” Old Chief v. United States, 519 U.S. 172, 

189 (1997). That rule “rests on good sense” because “[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. Moreover, if the government 

uses testimony or other tangible evidence to describe a series 

of events, but then interrupts that pattern by “announcing a 

stipulation or admission, the effect may be like saying, ‘never 

mind what’s behind the door,’ and jurors may well wonder 

what they are being kept from knowing,” or whether the 

government is “responsible for cloaking something.” Id. 

Thus, the Supreme Court has recognized that the “persuasive 

power of the concrete and particular is often essential to the 

capacity of jurors to satisfy the obligations that the law places 

on them.” Id. at 187.

Under those well-established principles, the 

government is entitled to put forward relevant evidence it 

chooses to present its case. That evidence, however, remains 

subject to Rule 403. As noted earlier, supra note 6, Rule 403 

provides that relevant evidence may be excluded “if its 

probative value is substantially outweighed by a danger of ... 

unfair prejudice ... or needlessly presenting cumulative 

evidence.” Fed. R. Evid. 403. The discretion district courts 

enjoy in this regard is broad indeed. “[I]f judicial restraint is 

ever desirable, it is when a Rule 403 analysis of a trial court is 
33

reviewed by an appellate tribunal.” Gov’t of Virgin Islands v. 

Albert, 241 F.3d 344, 347 (3d Cir. 2001) (citation and internal 

quotations marks omitted); see Old Chief, 519 U.S. at 183 n.6 

(noting, in the context of Rule 403, that “[i]t is important that 

a reviewing court evaluate the trial court’s decision from its 

perspective when it had to rule and not indulge in review by 

hindsight”). However, because the District Court abused its

discretion when it decided not to watch the videos before 

admitting them under Rule 403, its underlying Rule 403 

determination is not entitled to the full range of deference that 

we would normally give to it on appeal. See Curtin, 489 F.3d 

at 957 (noting that district court must know precisely what the 

evidence contains “in order for its weighing discretion to be 

properly exercised and entitled to deference on appeal”). In 

that light, we conclude that the District Court did not properly 

exercise its discretion in admitting all of the video excerpts.

We begin our analysis by setting forth the elements of 

the charged crimes that the government had to prove. Counts 

One and Three were brought under 18 U.S.C. § 2252(a)(2), 

which provides that “any person who ... knowingly receives, 

or distributes, any visual depiction ... if the producing of such 

visual depiction involves the use of a minor engaging in 

sexually explicit conduct; and ... such visual depiction is of 

such conduct ... shall be punished as provided in [§ 

2252(b)(1)25

 25 Subject to exceptions not relevant here, 18 U.S.C. 

§ 2252(b)(1) states, “[w]hoever violates ... paragraph ... (2) 

... of subsection (a) shall be ... imprisoned not less than 5 

years and not more than 20 years ... .” 18 U.S.C. 

§ 2252(b)(1).

].” 18 U.S.C. § 2252(a)(2). Count Two was 

brought pursuant to 18 U.S.C. § 2252(a)(4)(B), which 
34

provides that “any person who ... knowingly possesses ... 

video tapes ... if the producing of such visual depiction 

involves the use of a minor engaging in sexually explicit 

conduct; and ... such visual depiction is of such conduct ... 

shall be punished as provided in [§ 2252(b)(2)26].” 18 U.S.C. 

§ 2252(a)(4)(B). The parties stipulated that the videos 

recovered contained “visual depictions of real children under 

the age of 18 years of age engaging in sexually explicit 

conduct.” (App. at 196-97.)

The government argues that the video excerpts were 

“highly probative because the content of the videos verified 

the accuracy of many of the lurid file names the government 

had admitted into evidence,” and “they also tended to show 

knowledge of the distribution, receipt and possession of child 

pornography.” (Appellee’s Br. at 42.) Even with the parties’

stipulation, we recognize that showing the video excerpts here 

had some probative value because they had a tendency to 

show that the offender knew the videos contain child 

pornography. Although Cunningham correctly argues that 

the stipulation limited the probative value of those excerpts, 

he cannot dictate to the government how to prove its case. 

Old Chief, 519 U.S. at 183 n.7. Moreover, the agreed upon 

stipulation obviously falls far short of the evidentiary impact 

made by the video excerpts the government wanted to 

present. See id. at 187 (speaking of the “persuasive power of 

the concrete and particular[,]” and observing that “[e]vidence 

... has force beyond any linear scheme of reasoning, ... with 

 26 Subject to exceptions not relevant here, 18 U.S.C. 

§ 2252(b)(2) states, “[w]hoever violates ... paragraph (4) of 

subsection (a) shall be ... imprisoned not more than 10 years 

... .” 18 U.S.C. § 2252(b)(2).
35

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.”)

In addition, the two separate sets of video clips each 

had probative value. The first set, which formed the basis for 

the distribution charge as set forth in Count Three, contained 

three excerpts from three of the six videos that Erdely 

recovered from the IP address registered to Cunningham’s 

mother during Erdely’s undercover investigation on June 19, 

2007. The second set, which formed the basis for the receipt 

and possession charges as set forth in Counts One and Two, 

contained four excerpts from videos that were retrieved 

following the search and seizure of the computer found in 

Cunningham’s bedroom on July 17, 2007. Thus, each of the 

video excerpts “was derived from files charged in the 

indictment; the images shown to the jury were ... not 

extrinsic to the crime charged ‘but rather a part of the actual 

pornography possessed.’” United States v. Ganoe, 538 F.3d 

1117, 1124 (9th Cir. 2008) (quoting United States v. Dodds, 

347 F.3d 893, 898 (11th Cir. 2003)).27

 27 Ganoe also stated, however, that “[e]ven more 

importantly [for the Rule 403 analysis], for every image 

shown to the jury there was forensic evidence that the files 

had actually been opened and viewed after downloading.” 

538 F.3d at 1124. As Cunningham correctly notes, the 

government did not prove that the images shown to the jury 

had actually been opened and viewed. However, we do not 

hold that such forensic evidence is required to prove that 

video excerpts tend to show that a defendant knowingly 

possessed, received, or distributed child pornography. See 

Dodds, 347 F.3d at 899 (finding that the admission of images 
36

Even though the two sets of videos were probative, 

however, the law of diminishing marginal returns still 

operates. The probative value of each clip was reduced by 

the existence of the clips before it. Once one video excerpt 

from each of the two videos was shown, the fact being proven

– i.e., that the person distributing, receiving, and possessing 

that pornography would know that it contained images of real 

minors engaging in sexually explicit activity – may well have 

been established. As a result, after one excerpt from each 

video was displayed, the probative value of the remaining 

excerpts became diminished because knowledge of 

distribution, receipt, and possession had already been 

established in some degree by the prior video excerpts. Thus, 

any of the three excerpts from the first video would have 

diminished probative value if one or two of the other video 

excerpts from the first video had already been shown. 

Likewise, any of the four excerpts from the second video 

would have diminished probative value if one or two of the 

other video excerpts from the second video had already been 

shown. 

The question in the end, of course, is whether the

probative value of the clips shown was substantially 

outweighed by the danger of unfair prejudice or the needless 

presentation of cumulative evidence. See Fed. R. Evid. 403. 

 

of child pornography tended to show that defendant knew the 

images were child pornography because there was testimony 

that defendant viewed adult pornography on his computer, 

and thus it was reasonable for the prosecution to show that 

defendant would have been aware that this was not adult 

pornography). Here, there was testimony that Cunningham 

had viewed both adult and child pornography.
37

As Rule 403 clarifies, a party is not protected from all 

prejudice – only unfair prejudice. See Fed R. Evid. 403; see 

United States v. Bergrin, 682 F.3d 261, 279 (3d Cir. 2012) 

(“It must always be remembered that unfair prejudice is what 

Rule 403 is meant to guard against ... .”). 

Here, the aggregate risk of unfair prejudice was 

tremendous. Although the videos in question were not 

presented to this Court, the detailed descriptions we have 

received show that at least two of them should clearly have 

been excluded under Rule 403. Those two video excerpts, 

part of the second set of video clips, portray bondage or 

actual violence. Although all of the video excerpts are 

described as portraying deeply disturbing images, the 

descriptions of the depraved and violent sexual acts in 

Excerpt 1 and Excerpt 3 from the second video, see supra

note 11 and accompanying text, let alone the actual video 

images, are enough to “generate even more intense disgust” 

and cause us to conclude that the videos themselves surely 

“outweigh[] any probative value they might have” as to the 

charges of knowingly distributing, receiving, and possessing

child pornography.28 Curtin, 489 F.3d at 964 (Kleinfeld, J., 

concurring); see Loughry, 660 F.3d at 974 (citing Judge 

Kleinfeld’s concurrence in Curtin for the proposition that 

“video excerpts shown to the jury ... [of] men raping and 

ejaculating in the genitals of prepubescent girls ... have a 

strong tendency to produce intense disgust”). 

 28 We claim no expertise on the psychological impact 

that different types of child pornography may have on a jury, 

but think common sense dictates our conclusion.
38

“While all depictions of an adult engaging in sexual 

acts with a young child are bound to be repulsive, the impact 

on the jury will depend upon the nature and severity of the 

acts depicted.” Loughry, 660 F.3d at 972. Even in the 

cesspool of evidence presented here, Excerpts 1 and 3 in the 

second set of video clips stand out. We will not repeat the 

description of them but note simply that their violent and 

sadistic character likely created “disgust and antagonism” 

toward Cunningham which risked “overwhelming prejudice” 

toward him.29

 29 With striking exaggeration, the government argues 

that “the record reflects that the district court used ‘just about 

every tool at its disposal to minimize the inflammatory nature 

of the [video excerpts].’” (Appellee’s Br. at 45 (quoting 

Ganoe, 538 F.3d at 1124).) Although the Court did give a 

cautionary instruction before and after the videos were 

played, there were a number of additional steps the Court 

could have taken to reduce the risk of unfair prejudice, 

including those suggested by the defense. See supra Part 

I.B.1. The Court did not watch the video excerpts prior to 

ruling on their admissibility and did not limit the 

government’s video excerpts, except to order what the 

government had already accepted, namely eliminating the 

audio on the clips. Rather, the Court only hoped that the 

government would abide by its representation to present the 

videos in a condensed format. 

 See United States v. Harvey, 991 F.2d 981, 

996 (2d Cir. 1993) (admission of testimony regarding videos 

“depicting bestiality and sadomasochism” created “disgust 

and antagonism toward” the defendant, “and resulted in 

overwhelming prejudice against him”). Without those two 

videos, the government still had the entire footage of the first 
39

set of videos and additional material from the second set.

30 

We disagree with the government’s contention, made to the

District Court, that all of those video excerpts needed to be 

shown to “fully appreciate the nature of child pornography 

crimes.” (App. at 227.) Given the other available evidence, 

the government did not need to show videos of pre-pubescent 

children being bound, raped, and violently assaulted to prove 

that Cunningham knowingly possessed, received, and 

distributed child pornography.31 In addition, the more video 

excerpts were shown, the more it became a needless 

presentation of unfairly prejudicial and cumulative evidence. 

See Fed. R. Evid. 403.

 30 It also seems clear that the government had other 

evidence available to it from the child porn collection found 

on the computer seized from Cunningham’s bedroom.

31 We do not hold that violent videos like these, 

unspeakable though they are, would never be admissible. 

There may be circumstances where it would be appropriate to 

show them, given the crimes charged and the other evidence 

available. We only speak in the context of this case, in which 

there is ample evidence of the crimes charged without those 

extraordinarily prejudicial video clips. Nor does anything we 

have said here limit the government to offering at a retrial 

only the evidence that was adduced at the first trial. 

Likewise, nothing we have said prevents the District Court 

from excluding, after it has viewed them, more videos than 

the two we have discussed, if the Court, in its sound 

discretion, considers exclusion to be warranted under the 

Federal Rules of Evidence.
40

We recognize that a district court “is not required to 

scrub the trial clean of all evidence that may have an 

emotional impact.’” Ganoe, 538 F.3d at 1124 (citation and 

internal quotation marks omitted). Thus, we do not hold that 

the admission here of video excerpts or other images was per 

se improper. Indeed, courts are in near-uniform agreement 

that the admission of child pornography images or videos is 

appropriate, even where the defendant has stipulated, or 

offered to stipulate, that those images or videos contained 

child pornography. See, e.g., United States v. Polouizzi, 564 

F.3d 142, 153 (2d Cir. 2009); United States v. Schene, 543 

F.3d 627, 643 (10th Cir. 2008); Ganoe, 538 F.3d at 1123-24; 

United States v. Morales-Aldahondo, 524 F.3d 115, 120 (1st 

Cir. 2008); United States v. Sewell, 457 F.3d 841, 844 (8th 

Cir. 2006); Dodds, 347 F.3d at 898-99. We also decline to 

adopt a bright-line rule on the number of video excerpts that 

can be shown or on the maximum length of time that video 

excerpts can last. However, in light of the content of the 

videos besides the bondage clips, the probative value of those 

two violent excerpts was extremely limited. Accordingly, 

this is a case where we can confidently say that the probative 

value of some of the video excerpts was “so minimal that it 

[was] obvious ... that the potential prejudice to the defendant 

substantially outweigh[ed] any probative value that [they] 

might have.” Loughry, 660 F.3d at 971 (citation omitted). 

Therefore, the Court abused its discretion in admitting the 

bondage videos.

The government argues that the District Court’s errors 

do not require us to vacate Cunningham’s conviction, 

contending that any error in admitting the video excerpts was 

harmless. “The test for harmless error is whether it is ‘highly 

probable that the error did not contribute to the judgment.’” 
41

United States v. Vosburgh, 602 F.3d 512, 540 (3d Cir. 2010) 

(quoting United States v. Dispoz-O-Plastics, Inc., 172 F.3d 

275, 286 (3d Cir. 1999)). “This ‘[h]igh probability’ requires 

that the court possess a ‘sure conviction that the error did not 

prejudice the defendant.’” Id. (alteration in original) (quoting 

Dispoz-O-Plastics, Inc., 172 F.3d at 286). “Here, given the 

depraved and patently prejudicial nature” of at least two of 

the video excerpts, Curtin, 489 F.3d at 958, we do not have a 

sure conviction that the erroneous admission of those two 

excerpts did not prejudice Cunningham.

It is difficult to divorce the procedural error from the 

substantive error in this case. Procedural error often begets 

substantive error, and we believe that the substantive error of

admitting all of the video excerpts here was prompted by the 

procedural error of failing to review those excerpts prior to 

ruling on their admissibility. Cf. United States v. Goff, 501 

F.3d 250, 256 (3d Cir. 2007) (noting, in the sentencing 

context, that the substantive problems in the district court’s 

opinion “[were] a product of the [d]istrict [c]ourt’s 

procedurally flawed approach,” and by “disregarding 

[sentencing] procedures, the [d]istrict [c]ourt put at risk the 

substantive reasonableness of any decision it reached”). 

Unless “the probative value of the evidence is so minimal that 

it will be obvious to the court that the potential prejudice to 

the defendant substantially outweighs any probative value the 

evidence might have,” Loughry, 660 F.3d at 871 (citation 

omitted), district courts should take the procedural step of 

personally examining disputed evidence in a case like this,

prior to making a Rule 403 determination to admit the 

evidence.
42

B. Voir Dire

Cunningham also argues that the District Court abused 

its discretion during voir dire by failing to publish the video 

excerpts to potential jurors that would be played during trial, 

or otherwise failing to inform them that there would be video 

excerpts shown of young children being sexually assaulted. 

Specifically, Cunningham claims that the District Court’s 

questions during voir dire were too general for potential 

jurors to understand the “unfathomable nature of the evidence 

that would be presented at trial,” and thus “any assurances of 

impartiality” given by potential jurors were “uninformed and 

unreliable in violation of [his] Sixth Amendment right to be 

tried by an impartial jury.” (Appellant’s Opening Br. at 106.) 

Although we reject Cunningham’s assertion that the video 

excerpts to be shown at trial had to be played to all potential 

jurors during voir dire, his assertion that more information 

about the videos should have been provided to potential jurors 

does warrant further discussion.

One of the purposes of voir dire is to “enabl[e] the 

court to select an impartial jury,” Mu’Min v. Virginia, 500 

U.S. 415, 431 (1991), a purpose that implicates the Sixth 

Amendment, United States v. Martinez-Salazar, 528 U.S. 

304, 311 (2000). Although the Sixth Amendment guarantees 

the right to be tried “by an impartial jury,” U.S. Const. 

amend. VI, “the adequacy of voir dire is not easily subject to 

appellate review,” Rosales-Lopez v. United States, 451 U.S. 

182, 188 (1981). “We review [a] district court’s conduct of 

voir dire for abuse of discretion.” Butler v. City of Camden, 

City Hall, 352 F.3d 811, 814 n.4 (3d Cir. 2003).
43

A district court’s function during voir dire “is not 

unlike that of the jurors later on in the trial. Both must reach 

conclusions as to impartiality and credibility by relying on 

their own evaluations of demeanor evidence and of responses 

to questions.” Rosales-Lopez, 451 U.S. at 188 (citations 

omitted). “In neither instance can an appellate court easily 

second-guess the conclusions of the decision-maker who 

heard and observed the witnesses.” Id. “Because the 

obligation to impanel an impartial jury lies in the first 

instance with the trial judge, and because he must rely largely 

on his immediate perceptions, federal judges have been 

accorded ample discretion in determining how best to conduct 

the voir dire.” Id. at 189.

Here, the District Court asked jurors about whether 

they could be fair and impartial in a case that involved child 

pornography, specifically informing them that they would be 

“shown child pornography including graphic images and hear 

descriptions of computer files and offensive file names which 

w[ould] certainly be disturbing to most if not all of [them].” 

(App. at 302-03.) After providing that warning, several 

potential jurors indicated that they may not be able to be fair 

and impartial, and those potential jurors were excused for 

cause. 

Cunningham argues that the average person does not 

fully understand that child pornography may consist of videos

of sexual abuse involving prepubescent children, and thus 

would not understand the nature of the child pornography in 

the video excerpts that were eventually shown at trial. To 

support that claim, Cunningham points to the fact that a few 

potential jurors were excused for cause during individual 

sidebar conferences only after receiving more detailed 
44

descriptions of the videos that would be played at trial. We 

do not think that fact undermines the effectiveness of the voir 

dire, however. While more detail may have been useful, the 

District Court’s decision to not provide more graphic

information to the entire pool of potential jurors was not an 

abuse of discretion. Without minimizing the importance of 

removing the possibility of bias from a jury, we refrain from 

“second-guess[ing] the conclusions of the decision-maker,” 

Rosales-Lopez, 451 U.S. at 189, especially in light of the 

clear instructions the District Court provided about the 

graphic nature of the child pornography to be shown. On 

remand, “accord[ing] ample discretion” to the District Court 

“in determining how best to conduct the voir dire,” id. at 188, 

we leave it to that Court to determine if more detailed 

information about the case would be advisable to ensure a fair 

and impartial jury.

III. Conclusion

The District Court abused its discretion by failing to 

view the video excerpts before ruling them admissible. That 

lapse in proper procedure produced the substantive error of 

presenting to the jury evidence which bore the danger of 

unfair prejudice that substantially outweighed any probative 

value. Those errors were not harmless and we will therefore

vacate the judgment of the District Court and remand for a 

new trial.32

 32 Given the District Court’s July 31, 2012 order, see

supra note 

 On remand, unless the Court determines that, 

considering the potential of unfair prejudice, the probative 

value of a proposed video excerpt is so minimal that it need 

13, we will direct the Chief Judge of the District 

Court to reassign this matter.
45

not watch that excerpt, the Court must view the proposed 

video excerpts to not only assess their probative value and 

potential for unfair prejudicial impact but also to 

appropriately evaluate their admissibility in light of Rule 

403’s concern with redundancy.