PRECEDENTIAL

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT

_______________

Nos. 19-2424 & 19-2932

_______________

UNITED STATES OF AMERICA

v.

DYLAN HEATHERLY,

also known as Daniel Sotherland,

also known as John Doe-9,

Appellant in No. 19-2424

_______________

UNITED STATES OF AMERICA

v.

WILLIAM STAPLES,

also known as Bill Simpson,

also known as John Doe-7,

Appellant in No. 19-2932

_______________

On Appeals from the United States District Court

for the Middle District of Pennsylvania

(D.C. Nos. 1:16-cr-00082-010 & 1:16-cr-00082-008)

District Judge: Honorable Yvette Kane

_______________
2

Argued: July 8, 2020

Before: McKEE, BIBAS, and FUENTES, Circuit Judges

(Filed: December 11, 2020)

_______________

Robert J. Daniels [ARGUED]

Richard H. Katsifis

Killian & Gephart

218 Pine Street

P.O. Box 886

Harrisburg, PA 17101

Counsel for Appellant Dylan Heatherly

M. Jason Asbell [ARGUED]

Gibbel, Kraybill & Hess

2933 Lititz Pike

P.O. Box 5349

Lancaster, PA 17606

Counsel for Appellant William Staples

Stephen R. Cerutti, II

Office of United States Attorney

Middle District of Pennsylvania

228 Walnut Street

P.O. Box 11754

220 Federal Building and Courthouse

Harrisburg, PA 17108
3

Austin M. Berry [ARGUED]

United States Department of Justice

Criminal Division

Child Exploitation and Obscenity Section

1400 New York Avenue, N.W.

Washington, DC 20005

Counsel for Appellee

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OPINION OF THE COURT

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BIBAS, Circuit Judge.

Dylan Heatherly and William Staples frequented an internet chat room where users regularly shared child pornography. 

One chat-room user repeatedly live-streamed himself raping

and sexually abusing his six-year-old nephew. Heatherly and 

Staples encouraged him as he did so. And they repeatedly 

asked users for other child-pornography videos too. A jury 

convicted the men of receiving child pornography and conspiring to do the same. 

Though they challenge their convictions and sentences on 

many grounds, we find no error and will affirm across the 

board. In doing so, we hold that the District Court properly admitted videos shown in the chat room of children suffering violent sexual abuse. After reviewing that evidence for itself, the 

court properly found that the risk of unfair prejudice did not 

substantially outweigh its probative value. The evidence was 

highly probative of the conspiracy and the defendants’ awareness of what they were involved in.
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I. BACKGROUND

Child-pornography cases test our legal system’s commitment to fairness. That is doubly true of cases involving child 

rape and sexual abuse. Though the details to follow are unsettling, to do justice we must describe the facts explicitly, without flinching.

A. The investigation

Long before it became a staple of working from home, 

Zoom was regularly used for sharing child pornography. Rather than download images or videos, child pornographers and 

viewers can meet in a Zoom conference room while one user 

plays a video and shares his screen. The chat function lets them 

share messages either privately with a single user or publicly 

with everyone in the room. 

The child-pornography community has developed its own

language and rules of conduct in these rooms. Typically, users 

require one another to turn their computers’ webcams on so 

that others can see that they are real users, not bots or police. 

Users have a shorthand to describe the kind of pornography 

they seek, like “K-9” for bestiality, “bby” for babies, or “no 

limit ped perv” for children of any age, even babies. App. 227–

28, 363–64. They use special lingo to approve and encourage 

sharing contraband, like saying, “hail [user]” after that user 

shares a video. App. 235. And their aliases themselves often 

embrace violence and pedophilia, like “Twisted Brutal 

R4pist,” “babyRaperSnuffer,” and “SEXeducation8-13.” App. 

643, 667, 674.
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This case stems from the undercover work of Detective 

Constable Janelle Blackadar of the Toronto Police. On the 

evening of July 22, 2015, she logged into a Zoom conference 

room that she knew was used to share child pornography. 

While in the room, she recorded the videos and images that 

were displayed and saved the public messages. 

Detective Constable Blackadar watched and preserved several prerecorded videos showing children being sexually 

abused. One video showed an eighteen-year-old man named 

William Augusta (Zoom alias “Guy Johnson”) grabbing his 

six-year-old nephew (Victim-1), hitting him, and forcing him 

to perform oral sex. Augusta then live-streamed from his room:

as the Zoom users watched and egged him on, he abused his 

nephew again. After the livestream, users shared more prerecorded videos, including one showing men raping babies. 

While Augusta was abusing his nephew live, his chat comments suggested that he was in Pennsylvania. So Blackadar 

reached out to her contacts in the U.S. Government to notify 

them about what she was witnessing. Federal agents then 

phoned Zoom’s CEO to help in the investigation. Zoom gave 

agents the IP address of the user “Guy Johnson.” Police identified him as Augusta, used the Zoom images to identify his 

grandmother’s house in Carlisle, Pennsylvania, got a search 

warrant, and found his nephew there. Officers then found Augusta at his job and arrested him. 

Eventually, police managed to trace the IP addresses of 

many of the users who were in the Zoom room that evening. 

Federal prosecutors in the Middle District of Pennsylvania in-
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dicted fifteen defendants. Twelve pleaded guilty, and a thirteenth died before trial. This appeal focuses on the two defendants who made it to trial: Heatherly and Staples.

B. The defendants

1. Dylan Heatherly. Heatherly, then 31, lived alone near 

San Diego. He used the Zoom alias “Daniel Sotherland” and 

logged into the room while users were sharing prerecorded 

child pornography. On July 22 at 6:59 p.m. EDT, he posted a 

public comment in the room: “so appreciate if someone 

showed vids—need to bust [that is, ejaculate] before work.” 

App. 678. Less than a minute later, Augusta began streaming 

his live abuse of his nephew. Within three minutes, Heatherly 

posted a second public comment: “so close here.” App. 679.

The livestream continued for roughly twenty more minutes.

Throughout it, other users expressed their approval. Right before Heatherly’s second comment, “dirtypervy” told the other 

users that the live-rape scene “made me shoot haha.” App. 679. 

Other users publicly asked Augusta to abuse the six-year-old 

boy in particular ways: “nyc perv” told Augusta to “get him 

naked”; “babyRaperSnuffer” said, “smack him around a couple of times”; and “Andy” asked him to “rape him.” App. 679–

81.

IP logs linked “Daniel Sotherland” to Heatherly’s address. 

When federal agents got a search warrant and searched his 

home, he spoke to them for hours, admitting that “Daniel 

Sotherland” was his alias and that he watched child 

pornography. Forensic analysts found multiple child-
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pornography images as well as a video on his electronic 

devices. 

2. William Staples. Staples, then 56, lived alone in Kentucky. Using the alias “Bill Simpson,” he logged into the Zoom 

room on July 22 about an hour after Augusta’s livestream 

ended. During his session, Staples posted several comments 

asking other users to stream videos of babies: “any hot bby 

vids?”; “anyone have hot bby vids?”; and “any other....bby?” 

App. 687, 697, 699. After user “cigarffpumpboy” shared a 

video showing the rape of an infant, Staples replied: “hail 

cigarffpumpboy.” App. 692.

As with Heatherly, federal agents used IP logs to trace “Bill 

Simpson” to Staples. They got a search warrant, searched his 

home, and seized electronic devices that had child pornography 

on them. When agents questioned him, he admitted using the 

alias “Bill Simpson” and watching child pornography. He also 

admitted that he knew that users shared child pornography in 

the rooms. But he maintained, as he would through trial and 

sentencing, that he was there not to watch child pornography, 

but only to watch other adult men masturbate. 

Forensic analysis of Augusta’s and Staples’s devices revealed that Staples had also been in the room on February 28, 

2015, another time when Augusta had live-streamed his sexual 

abuse of his nephew. On that date, after Augusta started the 

stream, Staples sent a message asking him: “u live or is that a 

vid?” App. 772. Augusta replied: “you of all people asked; u 

know i’m live.” Id. After learning that he was watching live 

abuse, Staples encouraged Augusta: “can you walk around 

with your cock out?” App. 773.
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3. The charges. Heatherly and Staples were each charged 

with four counts. One count charged each with receiving or 

distributing child pornography; a second charged each with 

conspiring to do the same. 18 U.S.C. §2252(a)(2), (b)(1). A 

third pair of counts charged Heatherly and Staples respectively 

with knowingly publishing a notice or advertisement seeking 

to receive child pornography, and a fourth count charged each 

with conspiring to do the same. 18 U.S.C. §2251(d), (e).

C. Trial

At trial, the Government argued that the users in the Zoom 

room, including Heatherly and Staples, met regularly to solicit 

and share child pornography. Detective Constable Blackadar 

caught only one of those meetings. But what she saw there suggested that there was an ongoing conspiracy. At trial, the District Court let the Government introduce several exhibits over 

one or both defendants’ objections, including:

• Exhibits 2–8 and 10, videos of child pornography 

played in the Zoom room on July 22, as captured by Detective Constable Blackadar;

• Exhibit 17, Zoom activity logs showing aliases and IP 

addresses of all users who were in the Zoom room on 

July 22;

• Exhibit 21, internet subscriber information showing 

William Staples’s home IP address;

• Exhibit 54, a compilation of Zoom public and private 

chat messages from July 22, combining information 
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captured by Blackadar that evening with information retrieved from the defendants’ devices;

• Exhibit 55, a spreadsheet listing Zoom public and private chat messages between January and July 2015, 

taken from Augusta’s devices; and

• Exhibit 61, a spreadsheet listing all Zoom users whose 

information was found on either Augusta’s, 

Heatherly’s, or Staples’s devices. 

Heatherly and Staples called no witnesses. Rather than dispute facts, they tried to poke holes in the Government’s legal 

theories. In his closing argument, Heatherly’s lawyer focused 

on the conspiracy charges, arguing that the Government had 

showed only that Heatherly was a “spectator[,] . . . not a conspirator.” App. 383. And he challenged whether any of Heatherly’s 

chats amounted to an ad seeking child pornography. 

Staples’s lawyer challenged the Middle District of Pennsylvania as the wrong venue for prosecuting Staples for publishing a notice or ad. On the merits, he noted that on July 22, Staples was not in the Zoom room until more than an hour after 

the live-streamed rape. And like Heatherly’s lawyer, he questioned the legal theories supporting the conspiracy and advertising charges. 

The jury convicted both defendants of receiving or distributing child pornography and conspiring to do the same. But it 

acquitted both defendants of publishing a notice or ad seeking 

child pornography. On the charge of conspiring to publish such 
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a notice or ad, the jury convicted Staples but deadlocked on 

Heatherly. 

D. After trial

Because the crimes were so serious, the Sentencing Guidelines recommended imprisoning Heatherly and Staples for 

forty and seventy years. But the District Court varied downward, sentencing Heatherly to twenty-five years and Staples to 

thirty. 

On appeal, Heatherly and Staples argue:

• The District Court should have dismissed their convictions because there was insufficient evidence of 

conspiracy and on venue; 

• It erred by admitting explicit child pornography into 

evidence;

• It erred in admitting various other exhibits;

• It should have severed Staples’s trial from 

Heatherly’s;

• It gave an improper jury instruction on venue; and

• It miscalculated their Sentencing Guidelines ranges.

We reject all these arguments and will affirm.

II. SUFFICIENCY OF THE EVIDENCE

Both Heatherly and Staples challenge whether there was 

enough evidence of conspiracy to support their convictions. 
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We must take the evidence in the light most favorable to the 

prosecution and ask whether “any rational trier of fact could 

have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) 

(emphasis omitted).

To prove conspiracy, the Government had to show (1) that 

two or more people agreed to commit the substantive crime (of 

receiving child pornography, and in Staples’s case, posting an 

ad seeking to receive it); (2) that the defendant joined the 

agreement knowing of its objective and intending to join with 

at least one other conspirator to achieve it; and (3) that during 

the agreement, one member did an overt act to further the 

agreement’s objectives. See United States v. Rigas, 605 F.3d 

194, 206 n.9 (3d Cir. 2010) (en banc); United States v. Navarro, 145 F.3d 580, 593 (3d Cir. 1998). 

A conspiracy does not require an express agreement. A

“tacit agreement” is enough. People can tacitly agree when 

they “engage[] as a group” to achieve “a common goal.” 

United States v. Smith, 294 F.3d 473, 478 (3d Cir. 2002). A 

group’s “many unusual acts” can be enough evidence to let a 

jury infer that the group was tacitly working together. Id. Here, 

there was ample evidence that Staples and Heatherly were part 

of a conspiracy.

A. Staples’s connection to the conspiracy

Staples argues that the Government presented no evidence 

of any agreement to violate 18 U.S.C. §2251(d). That subsection criminalizes “knowingly mak[ing] ... any notice or adver-
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tisement seeking ... to receive ... [a] visual depiction involv[ing] the use of a minor engaging in sexually explicit conduct.” In fact, there was plenty of evidence that Staples and the 

other chatroom users conspired to violate §2251(d). 

To start, while Staples was logged on, the chatroom users 

asked for child pornography countless times. On July 22, users 

asked the group for “Any more babys,” for “baby vids msg 

me,” and whether Victim-1 was “still there” to be abused. App. 

695, 697. On February 25, users asked for “Any vids,” “any 

hot vids or pics?,” “any 0 to 3,” and “any vids guys?” App. 

771–73.

Staples argues that he never agreed with the other users to 

make those requests, but was just a bystander. There was 

plenty of evidence to rebut that argument. The chat log shows 

that the users swapped videos and egged one another on as part 

of a single, coherent group. E.g., App. 767 (“i shared last. 

who’s next?”); id. at 776 (“HAIL”). And Staples was an active 

participant in this group. He publicly celebrated when people 

posted videos. App. 692 (“hail cigarffpumpboy”). When there 

was a lull in the chatroom, he privately complained that “no 

one [was] shareing.” App. 771. And within moments of other 

people’s requests, he made nearly identical requests of his own. 

E.g., App. 687 (“any hot bby vids?”); id. at 699 (“any 

other....bby?”); id. at 771 (“did you have some hot ones to 

share?”). A jury viewing this evidence could certainly conclude that Staples was tacitly working with other members of 

the group to ask for and get child pornography.

There was other circumstantial evidence of a conspiracy

too. The users congregated in chat rooms that required a ten-
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digit room ID, so a user could not stumble into the room accidentally. And they protected their crimes by requiring everyone logged in to have his webcam on. These security measures 

suggested that the users were working together; at least, they 

had to tell each other what the password was and to turn on 

their cameras.

It does not matter that Staples never explicitly agreed with 

another user to post a notice seeking child pornography. He 

was part of a group of like-minded people who got together 

repeatedly to do just that. The shocking videos, pictures, and 

comments discussed below further support the jury’s finding 

that by frequenting this room, Staples agreed to the overarching conspiracy.

Staples’s challenge to the evidence of venue for that conspiracy likewise fails. Prosecutors must prosecute a crime in a 

district where the crime was committed. U.S. Const. art. III, 

§2, cl. 3; id. amend. VI; Fed. R. Crim. P. 18. The Government 

bears the burden of proving that venue is proper for each count, 

but only by a preponderance of the evidence. United States v. 

Root, 585 F.3d 145, 155 (3d Cir. 2009). Venue is proper in any 

district where a defendant did any of the “crucial elements” of 

the crime. Id. at 156; 18 U.S.C. §3237(a). For conspiracy, 

venue lies “wherever a co-conspirator has committed an act in 

furtherance of the conspiracy.” United States v. Perez, 280 

F.3d 318, 329 (3d Cir. 2002) (citing Hyde v. United States, 225 

U.S. 347, 363–64 (1912)).

There was enough evidence linking Staples to the Middle 

District of Pennsylvania. Staples argues that he was not logged 

in during Augusta’s July 22 sexual abuse. But that does not 
14

matter. “Although [Staples] himself did not act in the [Middle] 

District of Pennsylvania or direct any of his actions there, [a] 

co-conspirator[],” Augusta, live-streamed the video from 

there. United States v. Renteria, 903 F.3d 326, 331 (3d Cir. 

2018). Augusta’s “overt act[] in furtherance of the conspiracy 

[is] certainly sufficient to establish venue.” Id at 331–32. 

B. Heatherly’s connection to the conspiracy

Heatherly argues that he was just a viewer, not a member 

of the conspiracy. We take that argument as a concession on 

the substantive charge of receiving child pornography. Because he never sought a judgment of acquittal on the conspiracy charge, we review for plain error. There was none.

Heatherly’s claim fails for the same reasons that Staples’s 

does. Indeed, unlike Staples, Heatherly was in the room and 

commenting while Augusta live-streamed his rape of his 

nephew on July 22. We need not canvas all the other evidence

here; we explore much of it below.

III. ADMISSION OF THE CHILD PORNOGRAPHY

At trial, the Government introduced and showed the jury 

condensed versions of videos shown in the Zoom room on July 

22. These videos, Heatherly and Staples object, were inadmissible under Federal Rules of Evidence 402 and 403. Rule 402 

requires courts to exclude irrelevant evidence; Rule 403 lets 

them exclude some relevant but unfairly prejudicial evidence. 

The jury also learned of child-pornography images and videos 

found on their devices. Heatherly and Staples claim that the 

District Court should have excluded that evidence under Rules 
15

403 and 404(b) (which requires courts to exclude some evidence of bad acts).

A word before we go on: The descriptions of the Zoom videos that follow are horrifying. Though often we can resolve 

legal issues “without subjecting the reader to the graphic and 

disturbing details of the [child] pornography,” those details are 

unavoidable when we confront a fact- and context-specific 

challenge under Rule 403. United States v. Cunningham, 694 

F.3d 372, 377 n.8 (3d Cir. 2012). “To say that the ... descriptions of the video excerpts are loathsome is an understatement.” Id. at 381 n.10. Even so, we cannot shy away from scrutinizing them. A sanitized description would obscure whether 

the videos were unfairly prejudicial. Thus, we must confront 

the troubling details head-on.

A. The Zoom videos

At the start of trial, Detective Constable Blackadar described the eight challenged videos (ages and times are

approximate):

• Exhibit 2 runs for two minutes and shows a man vaginally penetrating a four-year-old girl. The jury 

watched a five-second clip of it at normal speed. 

• Exhibit 3 is a five-and-a-half-minute-long compilation of “hurtcore,” a subgenre involving the “torture 

or pain and the sexual assault of children.” App. 236. 

Many of the clips show a man vaginally or anally 

raping a three- or four-year-old girl. One clip shows 

a man urinating on that toddler’s face. Yet another 
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shows a man ejaculating on the vaginal area of a 

four-to-six-year-old girl. The jury watched this

video on fast forward for thirteen seconds. 

• Exhibit 4 runs for a minute and a half and shows a 

man anally raping a four-to-six-year-old boy. The 

Government did not show this video to the jury. 

• Exhibit 5 runs for almost eight minutes and shows 

an eight-year-old girl performing oral sex on a man. 

Near the end, the man forces his penis into her 

mouth and then ejaculates on her face. The jury 

watched part of this video on fast forward for twelve 

seconds. 

• Exhibit 6 runs for three and a half minutes, showing 

Augusta grabbing, hitting, and forcing his nephew to 

perform oral sex on him. The jury watched a tensecond clip at normal speed. 

• Exhibit 7 is a nine-minute recording of Augusta’s 

live abuse of his nephew. Blackadar captured only 

part of the twenty-two-minute livestream. During 

that part, six-year-old Victim-1 performs oral sex on 

Augusta. Augusta then puts his nephew in his lap, 

masturbates him, penetrates the boy’s anus with his 

finger, and then puts that finger into the boy’s 

mouth. The jury watched the first two minutes of 

that video on fast forward over thirteen seconds. 
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• Exhibit 8 is a three-and-a-half-minute-long compilation of adults sexually abusing prepubescent children. The Government did not show this video to the 

jury. 

• Exhibit 10 is a thirteen-minute-long compilation of 

adults sexually abusing babies. Parts show men forcing their penises into their victims’ mouths. One part 

shows a tied-up baby being anally penetrated. The 

jury watched the first five seconds at normal speed, 

then a seven-minute clip on fast forward over the 

course of ten seconds. 

No audio was played with any of the videos. 

Heatherly and Staples make three arguments why the District Court should have excluded these exhibits. First, the Government could not prove that Heatherly watched any of the videos on July 22; indeed, he was not even logged into the room 

when most of them were shown. Staples likewise was not 

logged in on July 22 while any of the videos played. Thus, they 

argue, the videos were irrelevant. 

Second, in deciding whether the videos were admissible under Rule 403, the District Court never explained on the record 

how it balanced the videos’ probative value against their potential for unfair prejudice. Heatherly and Staples argue that 

this failure was a per se reversible error. And third, they claim 

the District Court abused its discretion by letting the jury see 

these “shockingly prejudicial” videos. Heatherly Br. 22.
18

We review the District Court’s admission of this and all evidence for abuse of discretion. United States v. Tyson, 947 F.3d 

139, 142 (3d Cir. 2020). On this record, we find no abuse of 

discretion.

1. The videos were relevant. The Government’s theory of 

the conspiracy was that over several years, Heatherly, Staples, 

and many other coconspirators would meet online to share and 

watch child pornography. To prove an illegal conspiracy, the 

Government had to show that the users had a “tacit agreement.” 

Appellee’s Br. 26. And the more taboo the events in the Zoom 

room, the more likely that such a tacit agreement existed. That 

is especially true when one considers the alternative: that these 

men, all interested in illegal child pornography, happened to 

wander into the same private Zoom room at the same time. The 

challenged exhibits show how taboo the room was and what 

happened there, whether or not Heatherly and Staples saw 

these exact videos on that particular evening. They thus make 

it more likely that those present shared a tacit agreement. Fed. 

R. Evid. 401. So they are relevant.

2. Failure to articulate Rule 403 balancing was not reversible error. District courts may exclude evidence “if its probative value is substantially outweighed by a danger of ... unfair prejudice.” Fed. R. Evid. 403. When a district court faces 

a Rule 403 objection, it must balance these two competing factors. See United States v. Finley, 726 F.3d 483, 491 (3d Cir. 

2013). It should explain its reasoning on the record; when it 

does so, “we will rarely disturb its ruling.” Id. (quoting United 

States v. Sampson, 980 F.2d 883, 889 (3d Cir. 1992)). But we 

do not prescribe exactly what it must say, so long as it makes 
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clear that it balanced the Rule 403 factors. We have affirmed a 

district court’s overruling of a Rule 403 objection even when 

it just said that the probative value outweighed the risk of unfair prejudice. Id.

We prefer that the district court show its work. That is the 

wiser and sounder course. But we will affirm so long as it 

makes clear that it did the weighing itself. Compare, e.g., id.

(affirming because it was clear that the district court did the 

balancing), with Sampson, 980 F.3d at 889 (reversing because 

it was not clear that the court did the analysis at all), and Gov’t 

of the V.I. v. Pinney, 967 F.2d 912, 918 (3d Cir. 1992) (same).

Here, the District Court said just enough to confirm that it 

did the Rule 403 balancing. Before trial, the lawyers argued 

back and forth about Rule 403. At trial, when the Government 

first tried to introduce the videos, both Heatherly and Staples 

objected that the videos would be “highly prejudicial.” App. 

244. The District Court acknowledged the Rule 403 objection

and heard further argument from defense counsel and the Government. It then held that the Government had shown that the 

videos would not unduly prejudice Heatherly, but deferred its 

ruling pending further foundation as to Staples: “[B]efore we 

even get to the [Rule] 403 analysis, I want to know when it is 

you’re planning to show [the videos’] connection” to Staples. 

App. 244. Near the end of trial, after laying that foundation, the 

Government again moved to admit Exhibits 2–8 and 10. The 

court noted the previous objection, said it was preserved, and 

admitted the videos. True, it did not articulate its Rule 403 

analysis or mention probative value and prejudice. But it did 
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refer back to the Rule 403 analysis that it had promised to do

once the Government laid more of a foundation.

In context, we see that the court did the analysis and concluded that Rule 403 did not bar the evidence. As we said in 

Finley, the more a district court says, the better. See 726 F.3d 

at 491. But as we also said in Finley, a district court need say 

only enough to show that it weighed the Rule 403 factors. It 

said just enough here.

3. The District Court did not abuse its discretion by admitting the exhibits. District courts deserve broad deference in applying Rule 403. The rule is written in discretionary terms: 

“The court may exclude ....” Fed. R. Evid. 403 (emphasis 

added). And the caselaw “stress[es] the extraordinary breadth 

of discretion that this Rule invites.” Christopher B. Mueller & 

Laird C. Kirkpatrick, 1 Federal Evidence §4:12 (4th ed. 2020). 

So we normally reject bright-line rules about what evidence 

must be excluded under Rule 403. See Cunningham, 694 F.3d 

at 391 (declining to adopt a bright-line rule excluding potentially inflammatory child pornography). Rather, we must judge 

each case on its own facts and record.

Another point bears note. Rule 403 bars not all prejudice, 

but only unfair prejudice. United States v. Bergrin, 682 F.3d 

261, 279 (3d Cir. 2012). It does not protect defendants from

devastating evidence in general. The exhibits were disturbing 

because the alleged crimes themselves were extraordinarily 

disturbing. Rule 403 is not a shield to keep juries from learning 

details of horrific crimes. United States v. DeMuro, 677 F.3d 

550, 559 (3d Cir. 2012).
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These videos were highly probative. Proving a conspiracy 

required showing more than that someone played child pornography on July 22. The Government had to prove that the room 

was a haven for child pornography, a place where pedophiles 

would keep gathering to share in their vile pastime. Yet because the undercover agent was there only one time, the Government could not prove directly that anyone played child pornography at other times. For those other times, all the Government had were Zoom usernames and comment logs. So it 

needed to give the jury a snapshot so that the jury could match 

the commentary to the visual events. That snapshot was the 

evening of July 22. Having heard descriptions and seen clips 

of the child pornography streamed that evening, the jury could 

better grasp the scope of the alleged conspiracy and the tacit 

agreement driving it. To do that, it had to see those videos 

firsthand.

And jurors had to see the videos themselves, not just hear 

descriptions or stipulations, to appreciate that anyone who frequented that room must have approved of the images shared 

there. Both defendants claimed at some point that they were 

not really interested in child pornography but visited the room 

because they wanted to watch other men masturbate. If the jury 

had believed those defenses, it might have doubted whether the 

defendants really agreed to request child pornography. But the 

horrific videos demolished those defenses. They proved that 

Heatherly and Staples would not have frequented the room unless they wanted to watch images of children being sexually 

abused. No one would have gone back to the room innocently, 

thinking that the images the first time around were borderline 

or a fluke.
22

The probative value here was thus greater than in run-ofthe-mill cases of simple possession of child pornography. In 

those cases, defendants often concede that anyone who 

watched the videos would know that they were child pornography. Instead, the only factual dispute is whether the defendant knew the files were on the computer. See, e.g., United 

States v. Welshans, 892 F.3d 566, 571 (3d Cir. 2018); Cunningham, 694 F.3d at 379–80. The videos here did much more than 

that.

True, some of our recent Rule 403 analyses of child pornography have come out differently. In Cunningham and 

Welshans, we held that the district courts erred in admitting the 

evidence. 694 F.3d at 383; 892 F.3d at 576. But Rule 403 analysis is always fact- and context-specific. And each case is distinguishable in several important ways.

Start with Cunningham. That case involved no conspiracy 

charges. The district court had let the jury watch excerpts of 

two graphic child-pornography videos. 694 F.3d at 379–82. 

The court overruled a Rule 403 objection, relying only on the 

Government’s descriptions of the videos and without watching 

the videos itself before it ruled. Id. at 379. We held that it had 

abused its discretion, agreeing with several other circuits that a 

trial court must see the challenged exhibits for itself. See id. at 

383–87. And because the court had not watched the videos, we 

did not afford it the usual Rule 403 deference. See id. at 388.

That procedural error was intertwined with the substantive error and crucial to Cunningham’s outcome. Id. at 392; see also 

Welshans, 892 F.3d at 575.
23

On our independent review, we held that the court should 

have excluded the challenged videos. Cunningham, 694 F.3d 

at 388. The exhibits were probative, as they were the actual

child pornography that the defendant had possessed, and their 

lurid content tended to show that he knew what they depicted. 

See id. at 389. But because neither issue was disputed at trial, 

that probative value was minimal. See id. at 377–80. So their 

admission already tested the limits of the Old Chief maxim that 

the Government may put on evidence to prove its case and need 

not accept an offer to stipulate. See Old Chief v. United States, 

519 U.S. 172, 189 (1997). And given the limited purpose of 

introducing the videos, we saw no reason why the Government 

needed to show so many clips or why the excerpts needed to 

be so shocking and violent. See Cunningham, 694 F.3d at 389–

90.

Here, by contrast, the District Court did review the challenged evidence before admitting it. So we give its ruling substantial deference. Plus, the nature, content, and volume of videos prove Heatherly’s and Staples’s involvement in a broader 

conspiracy in the Zoom room. That was not an issue in Cunningham. And the risk of unfair prejudice was much lower here 

than in Cunningham. The jury had to understand the videos’ 

graphic details to decide whether there was a conspiracy, so at 

some point it had to hear brutal descriptions of abuse. That was 

already going to inflame the jury’s emotions. The marginal 

prejudice from seeing short, and in many cases fast-forwarded, 

video clips, after hearing detailed descriptions, was thus lower.

Welshans, which relied heavily on Cunningham, is likewise 

not on point. See Welshans, 892 F.3d at 575–76. That case also 
24

involved child-pornography videos played for the jury. But the 

crux of the appeal was repeated, detailed descriptions of other 

child pornography that the defendant allegedly possessed. See 

id. at 571–73, 575. Though we reiterated that there are no per 

se rules on this issue, we held that admitting the descriptions 

violated Rule 403. Id. at 575–76 (citing Cunningham, 694 F.3d 

at 391).

A key to the outcome in Welshans, as in Cunningham, was 

that “the Government had extensive evidence that did not involve violent or sadistic content, and Welshans stipulated that 

the files recovered were child pornography.” Welshans, 892 

F.3d at 576. The descriptions were relevant only to show that 

the contraband was child pornography, an issue no one disputed. Here, however, the videos were highly relevant to prove 

the conspiracy, which was hotly disputed. And here, the Government did not choose the most disturbing descriptions and 

videos from a mountain of evidence. On the contrary, the only 

images the Government had from the Zoom room were the 

handful of videos that Detective Constable Blackadar recorded 

on July 22.

4. Any error was harmless. Even if admitting the videos 

was an error, substantively or procedurally, there was no prejudice. Heatherly worries that “[a]nger is a wind that can extinguish the flame of reason.” Heatherly Br. 2. But here, the winds 

of anger did not blow out that candle or dim its flame. As 

Heatherly admits, the jurors “were able, to some extent, to divorce their natural emotion from reason.” Id. at 3. The jury evidently considered the evidence separately on each count and 

for each defendant. United States v. Franz, 772 F.3d 134, 153–
25

54 (3d Cir. 2014). It convicted on some counts, acquitted on 

others, and on one count reached different conclusions about 

each defendant. This is not the mark of a jury blinded by rage.

See id. (explaining that in context, the split jury verdict 

“strongly suggest[ed] that the jury was ... not swayed by the 

prejudicial character of the” child pornography); United States 

v. Pelullo, 14 F.3d 881, 899 (3d Cir. 1994) (citing with approval Judge Friendly’s treatment of the jury’s “discriminating 

acquittal on one of the counts” as “evidence that the jury was 

able to overcome any prejudic[ial taint]” in United States v. 

Ivic, 700 F.2d 51, 65 (2d Cir. 1983)). And lots of other evidence, including the defendants’ graphic messages and the detective’s descriptions of the videos, supported the convictions 

too. See United States v. Vosburgh, 602 F.3d 512, 540 (3d Cir. 

2010).

In closing, we again urge trial courts to articulate their Rule 

403 analyses on the record. That is especially important for inflammatory evidence. If they do so, we will rarely disturb their 

rulings. Still, we can affirm as long as the trial court clearly did 

the Rule 403 analysis. Here, the District Court did. 

B. Child pornography from the defendants’ 

computers

Heatherly and Staples each challenge the admission of 

child pornography found on their electronic devices. We reject 

those challenges.

1. Images from Heatherly’s devices. The District Court admitted Exhibits 33A–F, child pornography found on his devices. Heatherly argues that doing so amounted to using other 
26

acts as character evidence, in violation of Federal Rule of Evidence 404(b)(1). He asserts that the evidence had little relevance to him because (unlike Staples) he never claimed at trial

that he was in the room to watch other men. He also says that 

there was “scant” evidence that he viewed or even knew about 

these images. Heatherly Br. 30. And he argues that the court 

erred by not weighing the Rule 403 factors on the record. 

Heatherly’s Rule 404(b) argument is misguided. Though 

Rule 404(b) does exclude evidence of prior bad acts like uncharged crimes, Rule 414 carves out an exception for child molestation prosecutions (including child pornography). All the 

crimes charged here fall within that exception. See Fed. R. 

Evid. 414(d)(2)(B), (F).

The evidence was relevant to show his interest in child pornography. That supported the Government’s theory that he 

(and Staples) sought to receive child pornography by posting 

comments in Zoom rooms, an element of the notice-or-advertisement count. It also rebutted Heatherly’s pretrial statement

that he went to the room to watch adult men masturbate, not to 

watch child pornography. So while the evidence was more probative for Staples because he denied any sexual interest in children, it was probative for Heatherly too.

As for whether Heatherly ever watched or even knew about 

the images on his devices, that goes to the weight of the evidence, not its admissibility. He was free to deny his awareness 

of them but chose not to.

Finally, the District Court did a Rule 403 analysis. Before 

trial, it deferred ruling on admissibility until the court could 
27

analyze at trial “the relative weights of [their] probative value 

and prejudicial effect under Rule 403.” D.C. Dkt. No. 836, at 

5. True, when it later admitted the evidence, it did not explain 

its logic or mention the Rule 403 factors. But nothing suggests 

that it forgot its promise to balance them. For the reasons given 

earlier, we see just enough confirmation that the District Court 

balanced those factors. In any event, as explained, any error 

was harmless.

2. Images from Staples’s devices. Staples makes similar arguments against admitting the images that were found on his 

computer (Exhibits 62A–I). The District Court did not abuse 

its discretion in admitting them.

For Staples, the Rule 403 analysis is even simpler: the evidence rebutted his defense. Staples claimed he was a gay man 

who went to Zoom rooms just to watch men masturbate and 

had no interest in child pornography. He opened the door to 

this evidence and cannot complain that the Government 

walked through it. 

Staples also argues that the court should have excluded the 

images because he offered to stipulate that they were child pornography. But an offer of stipulation does not make evidence 

inadmissible. “As the Supreme Court remarked in Old Chief, 

‘[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.’ The government is thus entitled to put forth 

the relevant evidence that it chooses.” Finley, 726 F.3d at 492 

(alteration in original) (citation omitted) (quoting Old Chief, 
28

519 U.S. at 189). And Staples does not explain how this evidence unfairly prejudiced him. Indeed, at this trial, the jury saw 

far worse.

IV. OTHER EVIDENTIARY RULINGS

Besides the videos and child pornography, the Government 

also introduced other evidence of the Zoom activity of 

Heatherly, Staples, and their coconspirators. The District Court 

properly admitted this evidence.

A. Zoom chat messages and user-avatar data

Heatherly and Staples object to three forensic compilations 

of Zoom data: Exhibits 54, 55, and 61. But they have forfeited 

these objections. Heatherly’s opening brief spends just one 

page discussing them and does not cite a single legal authority 

for why it was error to admit them. Staples has even less to say, 

simply joining Heatherly’s arguments. By not developing these 

arguments properly, Heatherly and Staples have forfeited 

them. See Sikirica v. Wettach (In re Wettach), 811 F.3d 99, 115 

(3d Cir. 2016). 

B. Zoom user-activity logs

The Government introduced a list of user logs subpoenaed 

from Zoom as Exhibit 17. The list showed which users were in 

the room during the relevant times on July 22, 2015. The logs 

are hearsay. But they are classic business records (a hearsay 

exception): they were made contemporaneously based on information from someone with knowledge; they were kept in 

the course of Zoom’s regular business activity; and keeping 

those records was Zoom’s regular practice. Fed. R. Evid. 
29

803(6)(A)–(C). Plus, the Government introduced Exhibit 17A, 

a certification by the custodian of records that the records meet 

those requirements. Id. R. 803(6)(D), 902(11). So there is no 

merit to Heatherly and Staples’s objection that the agent on the 

stand had no personal knowledge of Zoom’s recordkeeping 

practices. 

Heatherly also misreads Exhibit 17A as saying that Exhibit 

17 was merely based on business records and is not itself a 

business record. That is not what it says. The custodian certified not that the records (Exhibit 17) are based on a review of 

business records, but rather that the certification itself (Exhibit 

17A) is based on a review of Zoom records. He added that Exhibit 17 reflects “business records which are created contemporaneously with the activity,” “are kept in the ordinary course 

of Zoom’s business and pertain to the regular business of 

Zoom.” Exhibit 17A (App. 658). That satisfies Rule 803(6) and 

902(11).

C. IP information

Staples, but not Heatherly, challenges the admission of Exhibits 21, 21A, 41, and 41A. In Exhibit 21, Staples’s internet 

provider ViaSat links Staples with the Zoom alias “Bill Simpson.” Exhibit 21A certifies that Exhibit 21 is a business record. 

Exhibit 41 is a log of IP addresses and usernames from a Zoom 

room in December 2015; Exhibit 41A is Zoom’s certification 

of it as a business record. 

Staples argues that Exhibit 21 is signed not by a ViaSat employee but rather one who worked for a firm that manages other 
30

companies’ business records. But nothing in Rule 902(11) requires that the records custodian be an employee of the same 

company. Nor, contrary to Staples, do the rules require the custodian to explain in detail who compiled the records, how, or 

how she knows they are accurate. 

As for Exhibits 41 and 41A, Staples contests not their substance, but only that the Government updated its certification 

too close to trial. But he did not object at trial, so we review 

only for plain error. And though he asserts that the update prejudiced him, he never explains how it did or what he would have 

done differently if he had gotten it earlier. He has not shown 

that any error affected his substantial rights. See United States 

v. Greenspan, 923 F.3d 138, 147 (3d Cir. 2019).

V. SEVERANCE

Before trial, Staples moved to sever his trial from 

Heatherly’s. The District Court reasonably denied that motion.

We review the District Court’s denial of a severance for 

abuse of discretion. United States v. Eufrasio, 935 F.2d 553, 

568 (3d Cir. 1991). We presume that courts will try 

codefendants jointly, especially when both are charged in a 

single conspiracy. See id. To overcome that presumption, “[a]n 

appellant’s burden is heavy: he must demonstrate ‘clear and 

substantial prejudice resulting in a manifestly unfair trial.’” Id.

(quoting United States v. Reicherter, 647 F.2d 397, 400 (3d 

Cir. 1981)) (emphases omitted). It is not enough to show that a 

severance would have increased the chance of acquittal, or that 

some evidence applied to some defendants more than others or 

was more damaging to some defendants. Id.
31

Staples’s severance argument centers on Exhibit 7, which 

showed Augusta’s live-streamed abuse of his nephew on July 

22, 2015. He stresses that this video, “the centerpiece of the 

trial,” related only to Heatherly, since Staples was not in the 

room when Augusta streamed it. Staples Br. 21. That objection 

fails. The Government introduced the video not to show what 

each defendant was doing that night, but to prove the pedophilic culture that the conspirators shared.

Staples likewise objects to several images and chats seized 

from Heatherly’s computer. But the court gave a proper limiting instruction, telling the jury to consider the evidence against 

each defendant and on each count separately. And the jury 

would have had no difficulty keeping the evidence from each 

defendant’s computer separate. In short, the court did not abuse 

its discretion by denying the requested severance and trying the 

two coconspirators together.

VI. THE VENUE INSTRUCTION

Neither Heatherly nor Staples is from the Middle District 

of Pennsylvania or was there during the conspiracy. Rather, 

they were convicted based solely on Augusta’s live broadcasts 

of abuse from there. At trial, Staples argued that venue was 

thus improper in the Middle District.

The District Court instructed the jury that for venue to be 

proper, “the government must convince you that some act in 

furtherance of the crimes charged” happened in the district. 

App. 396. Staples asked the court to insert the words “on a particular count” before that phrase, but the court denied that re-
32

quest. App. 1160–61. On appeal, he renews his request and observes that the Third Circuit’s model jury instruction uses the 

singular “offense” and “crime” rather than the plural. Third 

Circuit Manual of Model Criminal Jury Instructions §3.09 

(2018). Using the singular, he argues, would have clarified that 

the jury must find venue separately on each count. 

We agree that the use of the plural could have misled a jury 

into thinking that venue was proper on all charges so long as a 

crucial element of one charge happened there. Using the singular would have prevented any possible confusion. Still, the 

instruction made no difference. See United States v. Guadalupe, 402 F.3d 409, 415 (3d Cir. 2005) (requiring proof that an 

erroneous jury instruction so influenced the jury’s deliberations that it “produce[d] a miscarriage of justice”). In his closing argument, Staples’s counsel contested venue only on the 

count of knowingly publishing an ad seeking child pornography. No one mentioned venue on any of the other charges. And 

the jury acquitted Staples on that one count, even though it convicted him on all the others. Evidently, the use of the plural did 

not produce a miscarriage of justice. So this argument fails.

VII. SENTENCING

The District Court sentenced Heatherly to twenty-five

years’ imprisonment and Staples to thirty. Both now challenge 

their sentences. Each asserts that the court should not have applied the guideline for involvement in producing child pornography. Heatherly also argues that his sentence was far more severe than that of a codefendant, whom he claims was comparable. In making that claim, he insists that the sentencing court
33

mistakenly considered conduct of which he had been acquitted.

These arguments fail as well.

A. The district court applied the right guideline

The applicable guideline for receiving, possessing, advertising or soliciting child pornography is U.S.S.G. § 2G2.2. Ordinarily, that guideline sets a base offense level of 22. 

§2G2.2(a)(2). But a cross-reference provides that if the crime

“involved causing, ... or seeking by notice or advertisement, a 

minor to engage in sexually explicit conduct ... for the purpose 

of transmitting a live visual depiction of such conduct,” the 

guideline for producing child pornography applies. §2G2.2(c). 

That guideline sets a much higher base offense level of 32, adding decades to a defendant’s recommended sentence. 

§2G2.1(a).

The more serious guideline applied here. Heatherly and 

Staples’s sentences properly depended not only on their own 

conduct, but also on that of their coconspirators. Under the relevant-conduct guideline, the court had to consider the acts of 

coconspirators that were “within the scope of the jointly undertaken criminal activity,” “in furtherance of” it, and “reasonably 

foreseeable.” U.S.S.G. §1B1.3(a)(1)(B). Coconspirator Augusta produced a “live visual depiction” of child pornography 

at least twice, on February 28 (when Staples was in the room) 

and July 22 (when Heatherly was). §2G2.2(c)(1). So the only 

question is whether Heatherly and Staples agreed with Augusta 

to have him live-stream child pornography. The District Court 

reasonably found that they did.
34

Heatherly argues that he sought images only of past abuse. 

By asking for “someone [to] show[] vids,” he argues, he was 

not seeking live abuse, because “vid[eo]s” supposedly implies 

recordings. App. 678. Not so. Videos can be live. A video is 

just a set of “images for display on a television screen or other 

electronic device.” Video (def. 1a), Oxford English Dictionary

(3d ed. 2016). Indeed, we held argument in this very case by 

video: that is, a live videoconference. And when Augusta 

started to stream a video, Heatherly encouraged him to continue because he was “so close here.” App. 864.

The evidence for Staples was even clearer. Staples specifically asked Augusta whether he was live. When Augusta said 

he was, Staples egged him on to “walk around with [his] cock 

out.” App. 773.

Staples objects that the District Court made no factual findings specifying how much he agreed with, was involved in, and 

could have reasonably foreseen the conspiracy’s crimes. But at 

sentencing, the District Court specifically rejected Staples’s 

portrayal of his own conduct, finding that he “encouraged [Augusta’s] behavior and was an active participant in it.” App. 479.

It adopted the position advanced by the Government and accepted by the presentence report that Staples knew the object 

of the conspiracy and encouraged Augusta’s live abuse. The 

factual findings in the report suffice to support the court’s reliance on the conspiracy. See United States v. Collado, 975 F.2d 

985, 990 (3d Cir. 1992).
35

B. The sentencing court properly sentenced Heatherly

more harshly than a less-culpable coconspirator

Finally, Heatherly raises a sentencing disparity. He objects 

that his sentence was almost four times as long as that of his 

coconspirator Ed Westbury, who pleaded guilty to conspiring 

to distribute child pornography and received only six-and-ahalf years. But the District Court saw that discrepancy and 

grappled with it thoughtfully. It compared Heatherly’s conduct 

to that of twelve other defendants who had already been or 

would be sentenced. Most had pleaded guilty and been sentenced to decades in prison. And it evidently saw Westbury as 

an “outlier” not only because he had pleaded guilty, but also 

because he had sought “teen vids” rather than those of prepubescent children. App. 453, 455, 459. 

The sentencing court treated Heatherly in line with most of 

the other defendants. At the same time, it saw that he was neither “the least [culpable] among them” nor “the most culpable.” App. 460. He was less culpable than several other defendants who had been sentenced to 30 to 40 years. In particular, 

the court noted that another man had “telephoned the little 

boy[,] terrorizing him.” App. 456. That man had been sentenced to 30 years, so the court reasoned that Heatherly’s sentence should be somewhat less.

The sentencing court put enormous care and thought into 

distinguishing the defendants based on their conduct. As it explained: “It’s very difficult to draw these distinctions, but we 

have to do it. And, in fact, based on what we know about 

[Heatherly’s] conduct, he is less culpable than some others 

who were in that room, and he needs to be treated as such.” 
36

App. 460. The court did treat him as such, varying downwards 

from the forty-year sentence recommended by the Guidelines 

to twenty-five years. The punishment, it judged, fit the severe 

crimes. We respect that considered judgment.

In trying to prove a sentencing disparity, Heatherly complains that the District Court must have considered conduct of 

which he was acquitted. But he cites nothing in the record suggesting that. In any event, the Supreme Court has held that sentencing courts may consider acquitted conduct at sentencing. 

United States v. Watts, 519 U.S. 148, 149, 155–57 (1997) (per 

curiam) (explaining that an acquittal shows only reasonable 

doubt, which is consistent with the preponderance-of-the-evidence threshold at sentencing). The sentence was proper.

* * * * *

The child-pornography videos were essential to prove the 

tacit conspiracy, the culture of the Zoom room, and Heatherly 

and Staples’s awareness of what they were seeking and encouraging. The District Court properly admitted those videos and 

other evidence, denied a severance, found the evidence sufficient, and sentenced Heatherly and Staples based on their roles 

in instigating sexual abuse. Though the venue instruction was 

not ideal, in context the jury grasped it and was careful enough 

to acquit on some counts while convicting on others. We will 

affirm.
1

McKee J., concurring.

The importance of subjecting inflammatory evidence to 

the Fed. R. Evid. 403 balancing test cannot be overemphasized. 

This is particularly true when the evidence in question is as 

potentially inflammatory as it was here. My colleagues do not 

overstate the nature of these video clips in citing to our 

statement in United States v. Cunningham.

1 As the Majority 

explains, we there stated: “[T]o say that the . . . descriptions of 

the video excerpts are loathsome is an understatement.”2

Accordingly, my colleagues quite correctly, and without 

exaggeration, warn that the descriptions which they present are 

“horrifying.”3 Regrettably, those descriptions are nonetheless 

necessary for the reasons my colleagues so carefully explain. 

This tension between the potential for unfair prejudice on the 

one hand, and substantial probative value on the other, results 

in a Rule 403 balance that is as difficult as it is delicate in these 

kinds of cases. 

Although the District Court was aware this balance 

must be struck under Rule 403 before admitting such evidence, 

I am not convinced that the court actually undertook the 

precarious task of weighing the probative value of this 

evidence against its obvious potential to generate animus and 

undue prejudice. The court did note the 403 objection and was 

therefore clearly aware of that issue as my colleagues explain. 

However, being aware of the Rule 403 issue does not 

necessarily establish that the required balancing was actually 

undertaken by the District Court. I nevertheless concur in the 

Majority Opinion for two reasons. First, the fact that the jury 

did not convict defendants of all charges means that jurors’ 

emotions where not overwhelmed, and they were nevertheless 

able to thoughtfully evaluate the evidence that was introduced. 

Thus, any error in admitting the videos was harmless. Second, 

we have held that when the trial court fails to conduct this 

analysis, we may do so on review.4 As I shall explain, given 

the charges here, I believe the probative value of the evidence 

1 694 F.3d 372, 377 n.8 (3d Cir. 2012).

2 Maj. Op. 15-16.

3

Id. at 16.

4 See United States v. Eufrasio, 935 F.2d 553, 572 (3d Cir. 

1991).
2

did outweigh its prejudicial potential. Thus, the trial court did 

not err in allowing it. 

I. Harmless Error

The District Court did state “before we even get to the 

403 analysis, I want to know when it is, you’re planning to 

show [the connection to Staples].” However, the court later 

admitted the exhibits without conducting any further analysis 

on the record.5 The government argues that the District Court

conducted the analysis because the court “stated that it had 

reviewed the exhibits and recognized the need for it to conduct 

a Rule 403” analysis at some unspecified time in the future.6

Although the District Court thus clearly “recognized it needed 

to perform” the analysis, there is no indication it later did so.7

Nevertheless, I conclude any error would have been 

harmless even though I reject the government’s suggestion that 

the impact of the videos was mitigated by partially fastforwarding through them.

8

It by no means follows that fastforwarding through disgusting video images makes them any 

less disgusting or shocking. There is absolutely nothing in the 

record to support such conjecture, and the government has not 

offered anything to us to support it. Indeed, one could just as 

forcibly argue that fast-forwarding these images would make 

them even more repulsive. Moreover, the twenty seconds of 

regular speed footage included approximately ten seconds of 

“hurtcore” porn involving a five or six-year-old boy being hit 

and grabbed by the neck.9

Heatherly argues with some force that the kind of anger 

that will necessarily be cultivated in the minds of jurors 

viewing the kind of unspeakable cruelty and depravity in these 

5 Appx 244; see also Appx 365 (admitting exhibits without 

mentioning 403, probative value, prejudice, etc.); Heatherly 

Br. at 19-20 (the only comment regarding 403, noted above, 

was on day two and the exhibits were admitted without 

further discussion on day five.).

6 USA Br. at 28.

7 USA Br. at 29.

8 USA Br. at 30-31.

9 Heatherly Br. at 23-24.
3

video clips is of such force that it is akin to “a wind that can 

extinguish the flame of reason.”

10 However, as my colleagues 

explain, this jury did not convict either defendant on all counts 

in the indictment.11 Thus, the flame of reason continued to 

flicker, though it may well have been stressed. The Majority 

Opinion succinctly focuses on the significance of that fact and 

its relevance to our Rule 403 inquiry.12 

The jury’s ability to reason and individualize the 

evidence was not overwhelmed by the emotion, anger, or 

animosity that the video clips almost certainly engendered 

against these defendants. The jury refused to convict the 

defendants of publishing a notice or advertisement to receive 

child pornography.13 Absent that consideration, the risk that 

the jurors’ reason was overwhelmed would have been too great 

to sustain the decision to admit this evidence. Nevertheless, 

given the verdicts here, and assuming we can perform the Rule 

403 balance on appeal, I conclude that the trial court did not 

abuse its discretion in admitting this evidence over the 403 

objections.

14

10 Id. (citing to Heatherly Br. at 2).

11 Heatherly and Staples were charged with the following 

criminal Counts: (11) Conspiracy to Receive or Distribute 

Child Pornography” in violation of 18 U.S.C. § 2252(a)(2) 

and § 2252(b)(1); (12) Receipt or Distribution of Child 

Pornography in violation of 18 U.S.C. § 2252(a)(2), § 

2252(b)(1), and § 2; (13) Conspiracy to Publish a Notice or 

Advertisement of Child Pornography 18 U.S.C. § 2251(d); 

(16) and (17) Publishing a Notice or Advertisement to 

Receive Child Pornography 18 U.S.C. § 2251(d). Appx 5-12. 

Dylan Heatherly was found guilty of Counts 11 and 12 and 

not guilty of Counts 13 and 17. Appx 13. Staples was found 

guilty of Counts 11, 12, 13 and not Count 16. Appx 20-21.

12 Maj. Op. at 25.

13 Appx 8; 12. 

14 I use conditional language because it is not clear to me that 

our practice of conducting an independent review under Rule 

403 when the District Court fails to do so is consistent with 

Supreme Court precedent. Eufrasio was decided in 1991. 

Thereafter, in 2008, the Supreme Court decided Sprint/United 

Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384. There, in 

referring to the propriety of affording a District Court’s 
4

II. The Evidence Was Admissible Under Rule 403

While district courts should conduct the Rule 403 

balancing test on the record, this is one of the narrow situations 

where we have held that we may be permitted to conduct the 

Rule 403 weighing analysis ourselves.15 In undertaking that 

balance, I conclude that, when the risk of unfair prejudice is 

balanced against the probative value of these videos under Rule 

403, the balance tips toward allowing the jurors to see these 

video clips.16 

The charges against these defendants included 

conspiring to receive or distribute child pornography. Thus, 

the government had to prove the people in the Zoom chat had 

entered into such an agreement. Merely establishing that 

several individuals independently watched the same livestream

evidentiary rulings deference, the Supreme Court said: “This 

is particularly true with respect to Rule 403 since it requires 

an on-the-spot balancing of probative value and prejudice, 

potentially to exclude as unduly prejudicial some evidence 

that already has been found to be factually relevant.’’

(internal quotation marks omitted, emphasis added). We cited 

that language in Finley. See 726 F.3d at 491. However, there, 

the issue of our conducting the 403 balance did not arise 

because we concluded that the District Court did conduct the 

required balancing and we agreed that the evidence was 

properly admitted. Nevertheless, given my colleagues’ 

conclusion that the District Court did satisfy (though barely) 

the balancing requirement, and since I would find any failure 

to do so harmless error, it is neither necessary nor appropriate 

to attempt to resolve any tension between our jurisprudence 

and Supreme Court precedent here. I mention it only because 

it is relevant to the structure of my discussion.

15 Eufrasio 935 F.2d at 572. I emphasize my colleagues’ 

admonition that: “[w]e prefer that the district court show its 

work. That is the wiser and sounder course.” Maj. Op. at 19. 

Indeed, it is. For reasons that should be apparent to everyone, 

the atmosphere in a courtroom must be factored into the Rule 

403 balance. There is obviously no way for an appellate court 

to have a feeling for the level of tension or emotion during a 

trial.

16 Maj. Op. at 25.
5

would not necessarily imply an agreement to receive or 

distribute child pornography. Such an agreement is, of course, 

at the heart of a conspiracy charge. “[T]he essence of a 

conspiracy is a unity of purpose or common design.”

17 The 

video clips are highly relevant to proving the existence of such 

unity of purpose and consequently, to showing implicit 

agreement to receive and/or distribute child pornography. The

video clips establish the culture of the Zoom chat and thus 

support an inference that there was an implicit agreement and 

unity of purpose amongst the people who watched the 

livestream that it would be distributed to them and received by 

them. Indeed, the evidence here is so horrendous that it 

arguably undermines any suggestion to the contrary. 

Staples claimed he only sought to engage with adult 

men in the chatroom.18 The videos belie that assertion. They 

were critical to establishing that both defendants encouraged 

the distribution and receipt of the livestreams. Although 

Staples did not specifically ask for more, Heatherly specifically 

did ask for “vids” so he could “bust before work.”19 Given the 

nature of what they were watching, the defendants’ continued 

participation in the Zoom chat after seeing what was occurring 

there is as much a request for more of the same content as a 

verbal request would have been. 

17 United States v. Kates, 508 F.2d 308, 310-11 (3d Cir.1975)

(internal quotation marks omitted) (“It is well established that 

the gist of a conspiracy is an agreement. However slight or 

circumstantial the evidence may be, it must, in order to be 

sufficient to warrant affirmance, tend to prove that the 

appellant entered into some form of agreement, formal or 

informal, with his alleged co-conspirators. Similarly, we have 

stated that the essence of a conspiracy is a unity of purpose or 

common design.”).

18 Staples Br. at 12. (“Mr. Staples admitted that he visited the 

Zoom chat room under the alias “Bill Simpson” but 

contended that his purpose was interacting with adult men, 

not viewing child pornography. (Appx 286 (Transcr. p. 403-

405))”).

19 Heatherly Br. at 8; Appx 1069 (Heatherly stating “so 

appreciate if someone showed vids-need to bust before 

work;” and, approximately three-minutes later, “so close”). 
6

In United States v. Bailey, we explained that the 

probative value of such evidence partially depends on the

availability of an alternative, less prejudicial means of

establishing the same facts.20 Here, even though a detective 

testified and described the contents of all of the videos in great

detail, it is fair to assume that there is no way that the 

experience of any of the jurors would have enabled them to 

fully grasp the horrors of the livestream the defendants were 

watching or the significance of them remaining in the chat. 

The adage: “seeing is believing” encapsulates the need for

these jurors to actually see the recordings from that Zoom chat. 

The culture of that chat room simply defies the ability of the 

most skilled witness to articulate the horror of what the 

defendants were watching. This culture is highly relevant to 

determining if there was an agreement amongst those who 

knowingly participated in the Zoom chats. It is the very fact 

that the videos cause such revulsion that suggests that one 

could not willingly view them without tacitly agreeing to the

receipt of the livestream.21

This does not, of course, mean that there is a different 

threshold under Rule 403 for all child pornography cases or an 

implied exception to the required Rule 403 balance in cases 

involving child pornography or acts of extreme depravity. Nor 

does it mean that anyone who knowingly views such conduct 

necessarily conspires in its production, distribution or receipt. 

Rather, Rule 403 requires a very delicate, and exceedingly 

difficult balance based upon the unique circumstances of a 

given case before the probative value will outweigh its very 

real and substantial potential to prejudice. That balance is 

better left to the trial judge who can best assess the atmosphere 

in the courtroom and the likely impact of such graphic videos. 

It is an incredibly difficult inquiry that will depend on the 

unique circumstances of a given trial. Indeed, my colleagues 

thoughtfully explain why this case is distinguishable from 

other child pornography cases where we concluded that the 

potential for harm was simply too grave to admit certain 

graphic evidence despite its highly probative value.22

20 United States v. Bailey, 840 F.3d 99, 122 (3d Cir. 2016).

21 Heatherly Br. at 22. 

22 See Maj. Op. 22-23
7

Because the kind of graphic evidence that was 

admissible under Rule 403 here is so highly prejudicial, it is 

important that nothing I have said be misconstrued. I reiterate, 

there is no child pornography exception to the very difficult 

balance that Rule 403 requires. Rather, regardless of what is 

charged or the extent to which disputed evidence tends to 

offend, each case must be evaluated on its unique facts, the 

evidence produced, and the trial atmosphere. 

As I have explained, the other important consideration 

here is that the defendants were charged with (and convicted 

of) conspiracy to receive or distribute child pornography in 

addition to receipt or distribution of child pornography.23 For 

the reasons I have noted, the video clips helped to establish the 

culture that permeated the Zoom chats. That was an important 

part of proving that the participants were involved in such a 

unity of purpose and common undertaking that they had 

necessarily entered into an agreement that this type of material 

be received or distributed. 

Nevertheless, merely including a conspiracy charge 

does not conclusively determine the outcome of the 403 

balance nor necessarily increase the chances that the probative 

value of such evidence will outweigh its potential to inflame. 

The balance in such cases, as illustrated here, is particularly 

precarious because it is the extreme nature of the charged 

criminal conduct that yields both its probative value and its 

potential to unfairly prejudice a defendant. This is not like the 

video of a violent shooting that we held was improperly 

admitted in violation of Rule 403 in Bailey. A regrettable 

consequence of the violence that has become so very pervasive 

and accessible in today’s mass media is that it is well within 

the ability of lay jurors to imagine someone being violently 

gunned down by a shot to the head. Thus, gratuitous depictions 

of such violence do not often overcome their prejudicial impact

and they are rarely necessary to convey the essence of an event 

to jurors. 

What we have here is different. The government’s 

attempt to verbalize what the defendants were watching may 

well have been inadequate to communicate the nature of the 

23 Appx 5, 6, 9, 10.
8

Zoom chats or whether the unity of purpose between these 

defendants was such that it suggested an implicit agreement to 

participate in these livestreams, as opposed to “merely” 

separately observing them. Nevertheless, absent the fact that 

the jury still did not convict on all charges, I doubt that the 

centrality of the culture of the Zoom chat would have been 

sufficient to override the prejudice of subjecting jurors to these 

videos under Rule 403. 

Thus, I am not concerned that the government may 

begin reflexively including a conspiracy charge whenever two 

or more defendants are involved in viewing child pornography 

in an attempt to put more weight on the probative value side of 

the 403 scale. That would risk all defendants being convicted 

of all charges. In such a case, it would be exceptionally 

difficult to thereafter establish that the probative value of the 

evidence outweighed its extreme potential to inflame and 

unduly prejudice jurors. The record would contain little if 

anything to show that the jury’s capacity to reason was not 

overwhelmed or that the court did not abuse its discretion in 

letting jurors view such evidence. Moreover, when the Rule 

403 balance is struck, the trial court has no way of knowing 

what the jury’s verdict will be. 

In conclusion, as is evident from all that my colleagues 

and I have said, these cases present extraordinarily difficult 

challenges to trial courts under Rule 403 because it will always 

be extremely difficult for any juror to refrain from being 

overwhelmed by emotion or animus when confronted with the 

kind of shocking evidence that these jurors were permitted to 

view. Nevertheless, this record establishes that these jurors 

maintained their ability to reason despite whatever emotions 

they may have harbored. I therefore agree that defendants have 

not established that the court abused its discretion in admitting 

these video clips over their Rule 403 objection.