United States Court of Appeals

For the Eighth Circuit

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No. 16-2314

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United States of America

lllllllllllllllllllPlaintiff - Appellee

v.

David James Marmon

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the District of North Dakota

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 Submitted: December 16, 2016

 Filed: February 3, 2017

[Unpublished]

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Before KELLY and MURPHY, Circuit Judges, and MAGNUSON, District Judge. 1

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MAGNUSON, District Judge.

The Honorable Paul A. Magnuson, United States District Judge for the

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District of Minnesota, sitting by designation.
Appellant David James Marmon appeals several evidentiary rulings the district

court made during his trial on child-pornography charges. For the following reasons, 2

we affirm.

The North Dakota Bureau of Criminal Investigation began investigating

Marmon in early 2014, after law-enforcement software recorded the IP address for

Marmon’s computer downloading files containing child pornography on peer-to-peer

(“P2P”) networks. The software program recorded Marmon’s computers

downloading files containing common child-pornography search terms such as

“PTHC,” which stands for “pre-teen hard core.”

Law enforcement secured a search warrant for Marmon’s residence in

Williston, North Dakota. During the execution of the warrant, law enforcement

examined twenty devices, two computers, and an external hard drive, and ultimately

seized Marmon’s desktop computer and a laptop from the residence. Officers also

interviewed Marmon, and he admitted that he had downloaded and viewed child

pornography. A forensic examination revealed that Marmon’s computers did in fact

download many of the same files the law-enforcement software recorded them

downloading from the P2P networks. In June 2014, a grand jury indicted Marmon

on one count of receipt of materials involving the sexual exploitation of minors in

violation of 18 U.S.C. §§ 2252(a)(2) and 2252(b)(1). 

During the four-day jury trial, the United States introduced, over Marmon’s

objection, a compilation of portions of videos ostensibly found on Marmon’s

computers. Marmon contends that the Government failed to establish that the

material was in fact found on his computers, and that the district court erred in

allowing the jury to view the videos. Marmon also argues that the evidence adduced

at trial was insufficient to convict him.

The Honorable Daniel L. Hovland, United States District Court Judge for the

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District of North Dakota.

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On January 15, 2016, the jury convicted Marmon of the single charge brought

against him. On May 9, 2016, the district court sentenced Marmon to the ten-year

mandatory minimum term of imprisonment. Marmon timely appealed.

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We review the sufficiency ofthe evidence de novo, viewing the evidence in the

light most favorable to the verdict and giving the verdict “the benefit of all reasonable

inferences.” United States v. Spears, 454 F.3d 830, 832 (8th Cir. 2006). A reversal

is warranted “only if no reasonable jury could find the defendant guilty beyond a

reasonable doubt.” Id. The district court’s rulings on evidentiary issues are reviewed

for clear abuse of discretion. United States v. Omar, 786 F.3d 1104, 1112 (8th Cir.

2015). We will reverse “only when an improper evidentiary ruling affected the

defendant’s substantial rights or had more than a slight influence on the verdict.” 

United States v. Anderson, 783 F.3d 727, 745 (8th Cir. 2015) (quoting United States

v. Henley, 766 F.3d 893, 914 (8th Cir. 2014)).

Marmon first argues that the evidence was insufficient to convict him of

knowing receipt of child pornography, contending instead that the evidence

established, at most, possession of child pornography. But the jury heard evidence

that Marmon admitted to investigators that he had downloaded child pornography. 

Testimony from the investigator regarding Marmon’s computer searches and the

images found on Marmon’s computers corroborated this confession. See United

States v. Bagola, 796 F.3d 903, 907 (8thCir. 2015) (finding that confession supported

by corroborating evidence issufficient to support a conviction). The evidence at trial

was more than sufficient to support the jury’s determination.

Nor did the district court err in admitting evidence of child-pornography

materials found in the unallocated space on Marmon’s computers. Although Marmon

Although Marmon lists only one issue in his statement ofthe issues on appeal,

3

his brief argues the three issues discussed below and several others. The issues not

addressed do not merit any further discussion and the district court is affirmed in all

respects.

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argues that he could not have accessed this unallocated space without specialized

software, the Government’s evidence established that these materials resided in the

unallocated space because Marmon had tried to delete the materials from his

computers before the search warrant’s execution. The district court did not abuse its

discretion admitting these materials.

Finally, the district court did not abuse its discretion in allowing the jurors to

view a compilation of the child-pornography video excerpts found on Marmon’s

computers. Marmon argues that the evidence was unfairly prejudicial. But this

contention, without a showing that the district court failed to weigh Rule 403’s

requirements, is insufficient to allow us to conclude that the admission of this

evidence constituted an abuse of discretion. United States v. McCourt, 468 F.3d

1088, 1092 (8th Cir. 2006). There is no doubt that child pornography videos are

inherently disturbing. But Rule 403 precludes unfairly prejudicial evidence, not

merely any evidence that is detrimental to a defendant’s case. United States v.

Johnson, 463 F.3d 803, 809 (8th Cir. 2006). Merely because the evidence is

disturbing is not reason to exclude it. McCourt, 468 F.3d at 1092. Marmon has failed

to establish that the district court abused its discretion in allowing this evidence to be

published to the jury.

Affirmed.

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