United States Court of Appeals

For the Eighth Circuit

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No. 12-2276

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Dustin L. Worthey

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the Eastern District of Arkansas - Little Rock

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 Submitted: January 18, 2013

 Filed: June 17, 2013

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Before WOLLMAN, GRUENDER, and SHEPHERD, Circuit Judges.

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WOLLMAN, Circuit Judge.

A jury convicted Dustin Worthey of one count of receiving child pornography

and one count of possessing child pornography, in violation of 18 U.S.C. § 2252(a)(2)

and (a)(4)(B). The district court sentenced Worthey to 180 months’ imprisonment. 1

The Honorable James M. Moody, United States District Judge for the Eastern 1

District of Arkansas.
Worthey appeals, arguing that the district court erred in denying his motion for a

change of venue, in denying his motionsfor judgment of acquittal and for a new trial,

and in admitting evidence of child pornography over his offer to stipulate thereto. He

also challenges his sentence. We affirm.

I. Background

We state the facts against Worthey “in the light most favorable to the jury’s

verdict.” United States v. Tremusini, 688 F.3d 547, 550 n.2 (8th Cir. 2012) (quoting

United States v. Fuller, 557 F.3d 859, 862 (8th Cir. 2009)).

On August 26, 2010,Arkansas State Police (ASP) Agent Doug Estes conducted

an undercover investigation of an Internet Protocol (IP) address that he suspected of

trading child pornography over FrostWire, an online peer-to-peer file-sharing

program. Estes performed an undercover “browse” of the suspect IP address, which

revealed files containing known images of child pornography being offered for

download. Estes viewed two of the images, confirmed that they were child

pornography, and transferred the case to ASP Agent Charles Roe, who was

geographically closer to the suspect IP address.

Roe contacted the Internet service provider of the suspect IP address and

learned that the suspect IP address was registered to Chandra Worthey at a residence

on the 200 block of Braden Street in Monette, Arkansas, and that the email address

“dman762000@gmail.com” was listed for the account. Roe then conducted

surveillance of the residence, confirmed for himself that the suspect images were

indeed child pornography, and obtained a search warrant.

On the morning of November 4, 2010, Roe, along with ASP Agent Ramey

Lovan and Homeland Security Investigations Agent Deryl Rowe, drove to the

Worthey residence to execute the search warrant. Upon their arrival, the agents

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discovered no one there. As the agents were ascertaining Worthey’s place of

employment, they were told by ASP Agent Mike Grimes that Worthey and his thenwife, Chandra (collectively the Wortheys), were with him at ASP Headquarters. Roe

told Grimes to direct the Wortheys to return to their residence. Roe, Lovan, and

Rowe then proceeded to the Worthey residence. Upon being so instructed by Grimes,

Worthey said to Chandra, “Well, you are probably going to want to divorce me when

this is all over.” Grimes and the Wortheys then left separately for the Worthey

residence.

Upon arriving at the residence, Worthey approached Rowe and said, “I know

why you are here. The search warrant is for child pornography.” Worthey then

became extremely distraught, explaining his emotional state to Rowe by saying,

“Because I downloaded child pornography.”

Inside the residence, Roe found a Toshiba laptop computer, a preview of which

revealed child pornography. Roe seized, among other things, the laptop, five other

computers, and a wireless router from the Worthey residence. Roe took the laptop to

the Hi-Tech Crime Unit Computer Lab at the Paragould Police Department for

Jonesboro Police Department Agent Ernest Ward to analyze and kept the five other

computers to analyze himself. Roe’s week-long examination of the five other

computers revealed no child pornography on them.

Ward’s forensic examination ofthe laptop’s hard drive disclosed a user account

called “dman,” and Ward learned that the password “Badone76” was required to

access the user account; that the username and password were created on February

27, 2010; and that the email address associated with the laptop was “Dman76

something @gmail.” Ward also discovered a username for Arkansas State University

online that contained the name “Dustin Worthey.”

Ward found three file-sharing programs under the “dman” user account:

FrostWire, LuckyWire, and uTorrent, although FrostWire was predominantly used. 

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Regarding the FrostWire account, Ward determined that the GUID number within

2

the FrostWire properties file matched the GUID number associated with Estes’s

undercover investigation. Ward found files containing child pornography in both the

“dman” FrostWire “incomplete” and “saved” folders.

Worthey was charged with receiving and possessing child pornography, in

violation of 18 U.S.C. § 2252(a)(2) and (a)(4)(B). Before trial, Worthey moved for

a change of venue, asking that his trial be held in Jonesboro, within the Jonesboro

Division of the Eastern District of Arkansas, instead of Little Rock, within the

Western Division of the Eastern District of Arkansas. The district court concluded

that concerns over security and the jury’s observation of Worthey in custody

outweighed any inconvenience placed upon the witnesses and Worthey’s family and

friends and thus denied the motion.

The government disclosed prior to trial that it intended to play up to five

seconds of each of four videos containing child pornography found in the “dman”

FrostWire “incomplete” folder, as well as up to five seconds of each of five videos

containing child pornography found in the “dman” FrostWire “saved” folder. The 3

video clips were a “representative sample of all of the child pornography” and did not

include “the worst” of the videos. Worthey sought to stipulate that the videos

contained child pornography and thereby preclude their introduction at trial. The

district court, though not having viewed the video clips, determined that although the

At trial, Estes explained that a GUID is a number assigned to an individual 2

computer by a file-sharing program that serves as “the identifier for that one

particular machine on the network[.]”

The record is unclear whether the government sought to and ultimately played 3

three or five seconds of each of the four videos or some combination thereof. The

testimony at trial, however, indicates that the government played five seconds from

at least one of the videos and up to five seconds from the other three videos.

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video clips were likely offensive, the government retained the right to present its

evidence. At trial, the government published the video clips to the jury.

Wortheymoved for judgment of acquittal at the close of the government’s case

and again at the close of all of the evidence. The district court denied the motions. 

Following the jury’s verdict, the district court denied Worthey’s motion for judgment

of acquittal and alternatively for a new trial.

Following Worthey’s conviction, a presentence report (PSR) was prepared. 

Among other things, the PSR detailed an investigation by the Monette Police

Department that began after Chandra Worthey reported, shortly after the search

warrant was executed, that her daughter and son—Worthey’s stepdaughter and

stepson—had told her that Worthey had been molesting them. During the ensuing

investigation, Worthey’s stepdaughter and stepson reported, in detail, that Worthey

had sexually abused them.

The PSR recommended a base offense level of 22 and an adjusted offense level

of 38, which included a five-level enhancement for engaging in a pattern of activity

involving the sexual abuse or exploitation of a minor, see U.S.S.G. § 2G2.2(b)(5), as

well as a four-level enhancement for possessing child pornographyportraying sadistic

or masochistic conduct or other depictions of violence, see id. § 2G2.2(b)(4). From

this and a criminal history category of I, the PSR calculated a United States

Sentencing Guidelines (Guidelines) range of 235-293 months’ imprisonment, which

was reduced to 235-240 months’ imprisonment based on the maximum term of

imprisonment authorized by statute.

At sentencing, Ward testified he had found on the laptop approximately 200

videos of child pornography totaling between 65 and 75 hours in length, as well as

204 images of child pornography. Later, Rowe testified as to the graphic and violent

content of three of the videos containing child pornography found on the laptop.

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Also at sentencing, the district court received a report from Morrison County

Social Services, dated March 16, 2012, concerning Worthey’s stepdaughter. In the

report, Worthey’s stepdaughter stated thatWorthey “began sexually abusing her prior

to her third birthday up until November of 2010, at age 13, when he was arrested for

child pornography at that time.” The report also detailed Worthey’s stepdaughter’s

continuing post-abuse struggles, which included suicidal ideation. The district court

also received a report from the Craighead County Sheriff’s Department, dated July

3, 2011, of an attempted suicide by Worthey’s stepson. The district court then heard

testimony from Ward regarding the details of a conversation between Ward and

Chandra earlier that day, during whichChandra told himthat Worthey’s stepdaughter

was living at “a girls’ home and a juvenile mental institution, under 24-hour

lockdown,” and that Worthey’s stepson “was being treated for anxiety disorder due

to sexual abuse.” The district court then admitted, over Worthey’s objection,

videotape statements by Worthey’s stepdaughter and stepson.

The district court found by a preponderance of the evidence that Worthey had

engaged in a pattern ofsexual abuse of his minorstepchildren. The district court then

determined that Worthey had a base offense level of 22; that the five-level pattern-ofsexual-abuse enhancement, the four-level depiction-of-violence enhancement, and

several other enhancements, applied; that Worthey had a total offense level of 38; and

that Worthey had a criminal history category of I. From this, the district court

calculated a Guidelines range of 235-293 months’ imprisonment, which became 235-

240 months’ imprisonment based on the applicable statutory maximum. The district

court credited Worthey with “some reservations” it had regarding the imposition of

the five-level pattern-of-sexual-abuse enhancement and sentenced himto 180 months’

imprisonment on the receipt count and to 120 months’ imprisonment on the

possession count, with the sentences to run concurrently.

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II. Discussion

A. Motion for a Change of Venue

Worthey argues that the district court erred in denying his motion for a change

of venue. “We review a denial of a motion for a change of venue for abuse of

discretion.” United States v. Stanko, 528 F.3d 581, 584 (8th Cir. 2008) (quoting

United States v. Allee, 299 F.3d 996, 999 (8th Cir. 2002)). 

The Sixth Amendment to the United States Constitution “requires that a trial

be held in the state and district where the crime was committed.” Id. (quoting United

States v. Wipf, 397 F.3d 677, 686 (8th Cir. 2005)). “However, a defendant does not

have a right to be tried in a particular division.” Id. (quoting Wipf, 397 F.3d at 686). 

Pursuant to Federal Rule of Criminal Procedure 18, the district court “must set the

place of trial within the district with due regard for the convenience of the defendant,

any victim, and the witnesses, and the prompt administration of justice.” “A district

judge has broad discretion in determining where within a district a trial will be held,

and to overturn the court’s decision the defendant must prove abuse of that discretion

or prejudice.” Stanko, 528 F.3d at 584 (quoting United States v. Davis, 785 F.2d 610,

616 (8th Cir. 1986)).

Worthey argues that the district court failed to afford sufficient weight to the

convenience of the witnesses, his family, and his friends. He argues that the

witnesses, his family, and his friends were forced to commute in excess of two hours

to attend his trial and that the government’s purported security concerns could have

been adequately addressed by additional security officers.

Worthey points to our decision in Stanko, in which we explained that “[w]hile

the district court retains considerable discretion in determining the place of trial, that

discretion is contingent upon the court’s consideration ofthe factors provided in Rule

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18 when ruling on a proper motion for change of venue.” 528 F.3d at 586. But

unlike Stanko, where there was “no evidence in the record that the district court

undertook any consideration of the convenience of the defendant or witnesses or the

prompt administration of justice[,]” id. at 585, here the record shows that the district

court considered the Rule 18 factors and determined that security concerns from

holding the trial in Jonesboro outweighed the inconvenience of holding the trial in

Little Rock. We conclude that the district court did not abuse its discretion in so

ruling. Moreover, Worthey has shown no prejudice arising therefrom. See United

States v. Anderson, 626 F.2d 1358, 1375 (8th Cir. 1980) (“Absent any prejudice to

the defense, the decision of the trial court cannot be considered an abuse of

discretion.”), cited in Stanko, 528 F.3d at 584.

B. Sufficiency of the Evidence

Worthey argues that the district court erred in denying his motions for

judgment of acquittal and motion for a new trial because the evidence wasinsufficient

to convict him. He argues that the government failed to prove (1) that he was the

person who accessed the Internet and downloaded the child pornography found on

the laptop; and (2) that the child pornography was saved in the laptop’s permanent

memory as opposed to temporary cache.

We review de novo the district court’s denial of the motion for judgment of

acquittal, but “review a challenge to the sufficiency of the evidence deferentially and

affirm if any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” United States v. Vega, 676 F.3d 708, 721 (8th Cir.

2012) (quoting United States v. Augustine, 663 F.3d 367, 373 (8th Cir. 2011)). We

review the district court’s denial of the motion for a new trial for an abuse of

discretion. United States v. Maybee, 687 F.3d 1026, 1032 (8thCir. 2012). “Although

the district court may weigh the evidence and disbelieve witnesses, the verdict must

be allowed to stand ‘[u]nless the district court ultimately determines that a

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miscarriage of justice will occur.’” Id. (alteration in original) (quoting United States

v. Campos, 306 F.3d 577, 579 (8th Cir. 2002)).

As already noted, Worthey was convicted of receiving and possessing child

pornography, in violation of 18 U.S.C. § 2252(a)(2) and (a)(4)(B). “The convictions

for receipt and possession of child pornography turn on essentially the same

requirements and evidence, and thus will be discussed together.” United States v.

White, 506 F.3d 635, 641 (8th Cir. 2007). “The elements of receipt under 18 U.S.C.

§ 2252(a)(2) require the defendant to knowingly receive an item of child

pornography, and the item to be transported in interstate or foreign commerce.” Id. 

“The elements of possession under 18 U.S.C. § 2252(a)(4)(B) require the defendant

to knowingly possess an item of child pornography, and the item to be transported in

interstate or foreign commerce by any means.” Id. We construe Worthey’s

challenges as disputing whether he was the one who downloaded the child

pornography and if so, whether he “received” or “possessed” the child pornography.

As recounted earlier, a forensic examination of the laptop revealed a user

account called “dman” with the password “Badone76,” several file-sharing programs

under the “dman” user account, an email address associated with the laptop of

“Dman76 something @gmail,” and a username for Arkansas State University online

that contained the name “Dustin Worthey.” In addition to the evidence obtained from

the laptop, the government also introduced Worthey’s inculpatory statements. We

conclude that the evidence found on the laptop, considered together with Worthey’s

statements, was sufficient to establish that Worthey was the person who downloaded

the child pornography found on the laptop in his residence.

We also agree with the district court that the evidence was sufficient to

establish that the files containing child pornography were knowingly downloaded and

saved in the laptop’s permanent memory. Unlike United States v. Stulock, 308 F.3d

922, 925 (8th Cir. 2002), in which we noted that the district court had acquitted the

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defendant on the charge of knowingly possessing child pornography because “[t]he

possession charge specified only the images found in the browser cache[,]” the

evidence adduced at Worthey’s trial established that the child pornography found on

the laptop was downloaded through peer-to-peer file-sharing programs onto the

laptop. Agent Ward explained that he found child pornography in files within the

FrostWire “incomplete” and “saved” folders on the laptop and that the files

containing the child pornography were searched for and downloaded by the user. 

This testimony was consistent with Agent Estes’s testimony regarding the operation

of file-sharing programs such as FrostWire. See United States v. Koch, 625 F.3d 470,

478-79 (8th Cir. 2010) (holding that images “found on [the defendant’s] computer

and flash drive in filesthat a user had to create manually[,]” along with “evidence that

a number of the images had been moved and others deleted[,]” were “sufficient to

support the finding that [the defendant] knowingly possessed the images of child

pornography” (footnote omitted)). Accordingly, the district court did not err in

denying Worthey’s motions for judgment of acquittal and motion for a new trial.

C. Stipulation

Worthey argues that the district court erred in permitting the government to

play the video clips containing child pornography at trial despite his willingness to

stipulate that they contained child pornography. He argues (1) that in light of this

stipulation, the video clips should have been excluded under Old Chief v. United

States, 519 U.S. 172 (1997); (2) that the district court failed to conduct a Federal Rule

of Evidence 403 balancing test in deciding whether to admit the video clips or to

accept his stipulation as a substitute therefor; and (3) that the district court otherwise

erred in admitting the video clips. We review the district court’s evidentiary ruling

for an abuse of discretion. United States v. Sewell, 457 F.3d 841, 843 (8th Cir.

2006).

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We conclude first that Worthey’s Old Chief argument is foreclosed by United

States v. McCourt, 468 F.3d 1088, 1091-92 (8th Cir. 2006), in which we held that Old

Chief did not prohibit publication of child pornography video clips to the jury over

the defendant’s offer to stipulate to their content. See also Sewell, 457 F.3d at 844

(explaining that “the government is entitled to prove its case by evidence of its own

choice and is not required to accept the offer [to stipulate]”); United States v. Becht,

267 F.3d 767, 774 (8th Cir. 2001) (similar). To the extent that Worthey’s argument

constitutes a challenge to the validity or rationale of McCourt and our other

precedent, we necessarily must reject it, for “[i]t is a cardinal rule in our circuit that

one panel is bound by the decision of a prior panel.” United States v. Betcher, 534

F.3d 820, 823-24 (8th Cir. 2008) (quoting Owsley v. Luebbers, 281 F.3d 687, 690

(8th Cir. 2002)). 

The record indicatesthat the district court conducted a Rule 403 analysis when

considering the admissibility of the video clips. Before trial, Worthey’s counsel

argued that the video clips should be excluded in accordance with his stipulation

because they would “bias and prejudice and inflame [the] jury against [Worthey].” 

The government responded that it intended to play only selectfive-second video clips

and that it had chosen clips as “a representative sample of all of the child

pornography” without including “the worst” of the videos. Given the parties’ stated

positions, “[w]e presume that the district court weighed this evidence pursuant to

Rule 403” and concluded that the government should be permitted to play the video

clips. Smith v. Tenet Healthsystem SL, Inc., 436 F.3d 879, 885 (8th Cir. 2006), cited

in McCourt, 468 F.3d at 1092. 

Moreover, we do not agree with Worthey that the video clips unfairly

prejudiced him. Our court considered and rejected a similar argument in McCourt:

The only argument that McCourt offers in support of his unfair

prejudice claim is that videos of child pornography, more so than still

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images, arouse emotions that a jury is unable to set aside in reaching its

verdict. While the videos were no doubt unfavorable to McCourt, “the

fact remains that [Rule 403] does not offer protection against evidence

that is merely prejudicial in the sense of being detrimental to a party’s

case. The rule protects against evidence that is unfairly prejudicial.” 

United States v. Johnson, 463 F.3d 803, 809 (8th Cir. 2006) (internal

quotation omitted) (emphasis added). McCourt may be correct that

videos are qualitatively different from still images, but it is also true that

a video is nothing more than a series of still images shown in rapid

succession to create the illusion of motion. Only seven videos out of the

more than 175 found on McCourt’s computer were shown to the jury

and each for only three seconds. Because any illusion of motion created

by a mere three seconds of video is surely minimal, we see little

qualitative difference between the limited publication of these seven

videos and the publication ofstill imagesfor longer durations, as upheld

in our prior cases. See Sewell, 457 F.3d at 844 (reversing exclusion of

more than 60 seconds of still images); Becht, 267 F.3d at 774

(upholding 39 images displayed and hard copies distributed to jurors). 

Moreover, unlike in Becht and Sewell, which dealt with the defendant’s

collection of still images, we see no reason here that the Government

must limit its evidence to still images because McCourt did not so limit

his collection.

Given the limited number of videos and their minimal duration,

we do not find that their publication to the jury constitutes unfair

prejudice.

McCourt, 468 F.3d at 1092-93. Here, the government published only select fivesecond video clips to the jury as a representative sample ofthe less-than-worst videos. 

Although it might have been a better course for the district court to have examined

the video clips for itself prior to determining their admissibility, see United States v.

Cunningham, 694 F.3d 372, 386-87 (3d Cir. 2012), under the circumstances of this

case we find no unfair prejudice in the publication of the video clips to the jury. 

Accordingly, we need not consider or weigh the probative value of the video clips or

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the potential adequacy of Worthey’s stipulation as a substitution therefor. E.g.,

McCourt, 468 F.3d at 1093; Betcher, 534 F.3d at 825.

D. Sentence

Worthey argues that imposition of the five-level enhancement for engaging in

a pattern of sexual abuse of a minor violated his due process rights (1) because the

enhancement was not supported by clear and convincing evidence notwithstanding

the fact that the enhancement increased his potential sentence by up to 100 additional

months’ imprisonment, and (2) because the enhancement was based largely on the

videotape statements of his minor stepchildren. He also argues that his 180-month 4

sentence is unreasonable (1) because he presented evidence that he suffers from

Asperger’s Syndrome, and (2) because his sentence is greater than those of other

offenders convicted of similar yet more heinous conduct. We review de novo

Worthey’s due process argument, see United States v. Lee, 625 F.3d 1030, 1034 (8th

Cir. 2010), and review the substantive reasonableness of the sentence for an abuse of

discretion, see United States v. Spencer, 700 F.3d 317, 322 (8th Cir. 2012).

“We have rejected the assertion that ‘due process require[s] the government to

prove by clear and convincing evidence facts that produce[] so substantial an increase

in [a defendant’s] [G]uidelines range.’” United States v. Waller, 689 F.3d 947, 958

(8th Cir. 2012) (alterationsin original) (quoting United States v. Villareal-Amarillas,

562 F.3d 892, 895 (8th Cir. 2009));see also Lee, 625 F.3d at 1034-35 (explaining that

“we [have] decided squarely that due process never requires applying more than a

preponderance-of-the-evidence standard for finding sentencing facts, even where the

fact-finding has an extremely disproportionate impact on the defendant’s advisory

Worthey originally also challenged the imposition of the five-level 4

enhancement on the basis that he was facing charges in state court for the same

underlying conduct. In his reply brief, however, Worthey states that the state court

charges have since been nolle prossed, thereby rendering his argument moot.

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guidelines range” (internal quotation marks and citation omitted)). Accordingly,

Worthey’s argument that the district court was required to apply the clear-andconvincing-evidence standard fails.

The record supports the district court’s findings regarding Worthey’s pattern

of sexually abusing his minor stepchildren. At sentencing, the government offered

videotape statements by Worthey’s stepchildren regarding their history of being

sexually abused by Worthey. The district court found the statements sufficiently

reliable to warrant their consideration. See United States v. Bastian, 603 F.3d 460,

466-67 (8th Cir. 2010) (no abuse of discretion in admitting three video interviews of

minor victims of sexual abuse found by the court to be sufficiently reliable). The

district court also considered two written reports concerning Worthey’s stepchildren

and the psychological harm they suffered from his sexual abuse, as well as Ward’s

testimony regarding his conversation earlier that day with Chandra, whose reports

regarding the children were consistent with the written reports and the videotape

statements. Based on this evidence, the district court did not err in applying the fivelevel enhancement.

Nor did the district court abuse its discretion in sentencing Worthey to 180

months’ imprisonment, which represented a substantial downward variance below the

bottom of the 235-240 months Guidelines range. “[W]here a district court has

sentenced a defendant below the advisory guidelinesrange, it is nearly inconceivable

that the court abused its discretion in not varying downward still further.” Spencer,

700 F.3d at 322 (quoting United States v. Moore, 581 F.3d 681, 684 (8th Cir. 2009)

(per curiam)). Given the number of images and videosfound on the laptop, the nature

of the images and videos, and the evidence regarding Worthey’s pattern of sexual

abuse, the district court did not abuse its discretion in refusing to vary even further

downward.

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III. Conclusion

The conviction and sentence are affirmed.

SHEPHERD, Circuit Judge, concurring.

I concur in this court’s decision affirming Worthey’s conviction and sentence

in all respects. I write separately, however, to comment on the denial of Worthey’s

motion that his trial be moved from Little Rock to Jonesboro, his home and the

location of the events giving rise to his prosecution, and to affirm that “it isthe public

policy of this Country that one must not arbitrarily be sent, without his consent, into

a strange locality to defend himself against the powerful prosecutorial resources of

the Government.” See United States v. Stanko, 528 F.3d 581, 586 (8th Cir. 2008)

(internal quotation marks omitted).

While I agree that Worthey’s case is distinguishable from Stanko and that the

district court did not abuse its discretion in denying a change of venue in this case,

I find suspect the government’s reliance in resisting Worthey’s motion on the

5

possibility that, due to the absence of secured hallways in the Jonesboro courthouse,

the jury would view Worthey in custody, implying that trial in the more state-of-theart Little Rock courthouse would not present this risk.

First, it is not clear from the record that a juror would never see a defendant in

custody when tried in the Little Rock courthouse. Second, it is not a given that

prejudice to a defendant results from a juror seeing the defendant in custody before

or during a criminal trial. See United States v. Robinson, 645 F.2d 616, 617 (8th Cir.

It is difficult to discern from the district court’s September 7, 2011 order or 5

September 21, 2011 order whether it relied on the government’s explanation that the

jury would view Worthey in custody as a grounds for denying the motion to transfer.

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1981) (per curiam) (holding “brief and inadvertent exposure of defendants to jurors

is not inherently prejudicial” and that defendant bears burden of “affirmatively

demonstrating prejudice”). Further, the standard jury instructions—cautioning that

the defendant is presumed innocent unless and until proven guilty beyond a

reasonable doubt, and that an indictment is simply an accusation—minimize the

potential prejudice arising from such an observation. See Eighth Circuit Manual of

Model Jury Instructions: Criminal §§ 1.01, 3.05, 3.06 (2011). Third, if as here, the

defendant is willing to risk being seen by the jury while in custody, then in my view,

the court should not consider such a possibility as a factor supporting the denial of

a requested change of venue or in conducting its Rule 18 analysis.

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