United States Court of Appeals 

For the First Circuit 

Nos. 14-2020 

 14-2040 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

JOEL DUDLEY, 

Defendant, Appellant. 

APPEALS FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MAINE 

[Hon. George Z. Singal, U.S. District Judge] 

Before 

Lynch, Thompson, and Kayatta, 

Circuit Judges. 

Lauren Wille, with whom John Paul DeGrinney and DeGrinney Law 

Offices were on brief, for appellant. 

 Renée M. Bunker, Assistant United States Attorney, with whom 

Thomas E. Delahanty II, United States Attorney, was on brief, for 

appellee. 

October 30, 2015 
- 2 - 

THOMPSON, Circuit Judge. After two separate jury 

trials, Defendant-Appellant Joel Dudley (Dudley) was convicted of 

one count of possession of child pornography, in violation of 18 

U.S.C. §§ 2252A(a)(5)(B) and 2256(8)(A), and one count of false 

declaration before the court, in violation of 18 U.S.C. § 1623(a). 

On appeal, Dudley contests the denial of his motion to suppress in 

the possession matter and further argues that the district court 

erred by permitting the government to play two video excerpts of 

child pornography for the jury. Dudley also contests the denial 

of his motion for judgment of acquittal in the perjury matter. 

For the reasons that follow, we affirm Dudley's convictions. 

OVERVIEW1

Around noon on August 20, 2012, state and federal 

officers executed a search warrant, obtained in the course of a 

child pornography investigation, at Dudley's Westbrook, Maine 

residence. Officers had traced to Dudley's apartment an internet 

protocol (IP) address that had shared child pornography using a 

peer-to-peer file sharing software called Ares. While the search 

of Dudley's apartment was underway, two Homeland Security 

Investigations (HSI) Special Agents, David Fife (Fife), the lead 

investigator and case agent in the matter, and Martin Conley 

(Conley), interviewed Dudley in Agent Fife's SUV for about forty 

 1 We summarize the underlying facts and history of the case, 

saving additional details for our analysis of the alleged errors. 
- 3 - 

minutes. During this interview, Dudley admitted that he was 

familiar with the Ares network and made other incriminating 

statements concerning the downloading of child pornography. 

Ultimately, two CDs containing child pornography were found on a 

desk in Dudley's office. Dudley was subsequently arrested and 

indicted on one count of possession of child pornography. 

Prior to trial on the possession matter, Dudley filed a 

motion to suppress statements made to Agents Fife and Conley, and 

testified at the suppression hearing. The district court denied 

the motion.2 Later, based on statements he made while testifying 

at the suppression hearing, the government charged Dudley by 

indictment with one count of false declaration before the court. 

After a two-day jury trial on the possession matter, 

Dudley was found guilty of possessing child pornography. A few 

months later, another jury found Dudley guilty, this time of 

providing materially false testimony during the suppression 

hearing. 

 2 The suppression hearing was held before a magistrate judge. 

Following Dudley's objection to the magistrate judge's recommended 

decision and a response by the government, the district judge 

adopted the magistrate judge's proposed findings and decision, and 

denied the motion to suppress. For simplicity's sake, we will 

refer to the findings and conclusions of the magistrate judge as 

those of the district court. 
- 4 - 

Dudley now appeals his convictions.3 On appeal, Dudley 

raises three issues.4 With regard to the possession charge, Dudley 

argues that the district court (1) committed reversible error when 

it denied his motion to suppress, and (2) erred in allowing the 

government to play two thirty-second video excerpts of child 

pornography to the jury during its closing. As for the perjury 

charge, Dudley contends that the district court erred when it 

denied Dudley's motion to acquit. 

THE POSSESSION MATTER 

I. Dudley's Motion to Suppress 

Dudley sought to suppress all evidence obtained as a 

result of his allegedly illegal interrogation by Agents Fife and 

Conley, arguing that the agents continued to question him after he 

had invoked his right to counsel. The thrust of Dudley's testimony 

was that he had requested an attorney on three separate occasions.5 

 3 Dudley's appeals have been consolidated pursuant to Federal 

Rule of Appellate Procedure 3(b)(2). 

4 Dudley was sentenced to 96 months of imprisonment on the 

possession conviction and 60 months of imprisonment on the perjury 

conviction, to be served concurrently. He does not challenge his 

sentence on appeal. 

5 Six other witnesses testified at the suppression hearing. 

Dudley offered three witnesses who had been present on the day of 

the search: his wife, Lori Dudley; his mother, Cheryl Dearborn; 

and a close family friend and roommate of the Dudleys, Charal 

Boothby. In addition, three law-enforcement officers -- Agents 

Fife and Conley, and their supervisor, Resident Agent in Charge 

(RAC) Gary Cote -- testified for the government. 
- 5 - 

First, Dudley testified that, as he was led out of his apartment, 

he told his wife "to call Gordon to get ahold of Joseph about the 

-- about getting a lawyer." Second, Dudley claimed that when Agent 

Fife asked if he was willing to talk to him, Dudley said that he 

"would be willing to listen to an explanation" but that he wanted 

a lawyer. According to Dudley, Agent Fife responded by telling 

him that he could have a lawyer if he wanted one, but he was not 

a suspect and it would look better if he agreed to speak with them. 

And finally, Dudley asserted that after being read his Miranda 

rights, see Miranda v. Arizona, 384 U.S. 436 (1966), he reiterated 

to Agents Fife and Conley his desire to have an attorney present 

for any questioning. 

As may be expected, the government disputed Dudley's 

version of events, countering that Dudley was not in custody when 

he spoke to the Agents and that, even if Dudley had been in custody 

when he was interviewed, he knowingly and voluntarily waived his 

rights. Specifically, the government argued that Dudley's "claim 

that he invoked his right to counsel after being read his Miranda 

rights [was] simply false" and that Dudley "voluntarily elected to 

speak with investigators." 

A. Findings and Conclusions of the District Court 

On the whole, the district court did not find Dudley's 

testimony credible, and largely crediting the agents' version of 

events, the district court found the following relevant facts, 
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which are reasonably supported by the record. See United States 

v. Hughes, 640 F.3d 428, 434 (1st Cir. 2011). 

On the afternoon of August 20, 2012, twelve lawenforcement officers, including six uniformed police officers, 

detectives and task force officers, and six HSI agents in plain 

clothes, arrived at Dudley's apartment to execute the search 

warrant. Prior to arriving at the apartment building, the 

officers6 had been informed by the Westbrook Police Department that 

Dudley lived in the apartment with his wife, Lori Dudley (Lori), 

their three children, and a roommate, Charal Boothby (Boothby). 

Officers had also been cautioned that there were frequent 

transients in and out of the apartment and that Dudley was 

potentially in possession of a firearm. 

While Agent Gary Cote (Cote) and another officer kept 

watch outside the multi-unit apartment building, the other 

officers entered the building and proceeded to Dudley's secondfloor apartment with their guns drawn and in the "low ready" 

position. When an officer knocked on the door and announced the 

presence of law enforcement, Lori answered but, when asked by the 

officer about Dudley's whereabouts, claimed that Dudley was not 

home. With unfortunate timing perhaps, Dudley then stepped into 

view of the officers behind Lori. Officer Fred Williams (Williams) 

 6 For clarity, we will refer to the officers and agents 

collectively as "officers." 
- 7 - 

of the Saco, Maine police department immediately removed Dudley 

from the apartment, brought him to a landing midway down the 

stairwell, and frisked him. Officer Williams then proceeded to 

remove Dudley's cell phone, handcuff him, and lead him down the 

stairs and outside to the front of the building. 

As Dudley was being removed from the building, the 

remaining officers conducted a protective sweep of the apartment. 

In addition to Dudley and Lori, the officers came across five 

people in the apartment: the Dudleys' three children; the Dudleys' 

roommate, Boothby; and Boothby's younger brother, Robert Duquette. 

When officers completed the protective sweep, the search 

began. At that point, Agent Fife left the apartment to find Dudley 

and located him downstairs with Agent Cote and a Westbrook police 

officer. When Agent Fife arrived, Dudley asked to smoke a 

cigarette, and Agent Fife removed Dudley's handcuffs so that he 

could do so. Agent Fife then explained that the officers were 

there because they had information that someone using an IP address 

at Dudley's apartment was sharing child pornography through the 

Ares peer-to-peer file sharing program.7 Agent Fife further told 

Dudley that he was not under arrest but that he could not return 

to the apartment until the search was complete. Dudley asked to 

see the search warrant, which Fife provided. 

 7 Internet service providers assign individual computers 

specific IP addresses to access the internet. 
- 8 - 

Around this time, Agent Fife asked Dudley if he would be 

willing to speak with him, and Dudley said that he would. For 

privacy reasons, Agent Fife suggested that they talk inside his 

SUV, which he had parked in a driveway adjacent to Dudley's 

apartment. Dudley again agreed. Agent Fife sat in the driver's 

seat, while Dudley took the passenger seat, and Agent Conley, who 

by this point had joined Agent Fife, sat in the backseat behind 

Dudley. The doors to the SUV remained unlocked, and Dudley was 

reminded that he was free to leave. Agent Fife then apprised 

Dudley of his Miranda rights, reading from a standardized form. 

Dudley agreed to speak to the agents, remarking that he knew his 

rights and that he had been read the Miranda warnings on a previous 

occasion. Agent Fife did not have Dudley sign the standardized 

form because he did not believe that Dudley was in custody. 

The interview, which was not recorded, lasted about 

forty minutes. According to Agent Fife, the conversation was very 

"cordial," and at no point did Dudley request that the interview 

stop. Near the end of the interview, Agent Cote signaled to Agent 

Fife that he needed to speak with him. There was a brief pause in 

the conversation as the agents spoke outside the vehicle, but 

Dudley remained in the car and the interview resumed shortly 

thereafter. 

At the conclusion of the interview, Agent Fife told 

Dudley that he still could not return to the apartment because the 
- 9 - 

search was ongoing, but Dudley was allowed to sit alone and 

unhandcuffed on the front stoop near Agent Cote and other officers. 

When officers found a CD containing child pornography in 

Dudley's office, Agent Fife approached Dudley on the stoop to ask 

if the items on his desk belonged to him. Dudley responded 

affirmatively to Agent Fife's questions.8

Three hours after it began the search concluded, 

resulting in Dudley being handcuffed and placed under arrest. As 

Dudley was transported to the county jail, he became agitated, 

repeatedly asked the officers what probable cause they had for the 

arrest, and threatened to sue. 

In its decision, the district court assumed Dudley was 

in custody,9 and also assumed that as he was escorted from the 

apartment he asked his wife to contact his attorney. Nevertheless, 

the district court concluded that there was no evidence that any 

law enforcement officer actually heard Dudley's statement to his 

wife and, therefore, the statement "was not in itself an 

unambiguous invocation of his right to counsel." The district 

court also determined that Dudley's assertion that he had twice 

invoked his right to counsel during his interview with Agents Fife 

 8 Although Dudley's response is not part of the district 

court's factual findings, Agent Fife testified that Dudley 

responded that the items in his office belonged to his business. 

9 The parties do not contest the district court's assumption 

that Dudley was in custody. 
- 10 - 

and Conley was not credible. Instead, the district court credited 

the agents' testimony that Dudley never requested an attorney and 

never asked to stop the interview. 

In particular, the district court noted that Dudley 

"admitted on cross-examination that (i) he knew his Miranda rights 

prior to his encounter that day with officers, (ii) he knew enough 

to ask to see the search warrant, (iii) upon his arrest later that 

day, he accused the officers of arresting him without probable 

cause and threatened to sue them, and (iv) he was 'quite 

protective' of his rights." Therefore, the district court found 

that Dudley "likely would have invoked his right to counsel, and 

ceased answering officers' questions, if he did not wish the 

interview to continue." 

Dudley now challenges this ruling, arguing, as he did 

below, that he unambiguously invoked his right to counsel as he 

was led from the apartment and again both before and during his 

interview with Agents Fife and Conley. Consequently, Dudley argues 

the district court erred in denying his suppression motion. We 

see no error. 

B. Standard of Review 

When reviewing a denial of a motion to suppress, "[w]e 

view the facts in the light most favorable to the district court's 

ruling." United States v. Camacho, 661 F.3d 718, 723 (1st Cir. 

2011) (alteration in original) (quoting United States v. Soares, 
- 11 - 

521 F.3d 117, 118 (1st Cir. 2008)). And "we review the district 

court's findings of fact and credibility determinations for clear 

error." Id. Under clear error review, we will reverse "only if, 

after considering all the evidence, we are left with a definite 

and firm conviction that a mistake has been made." Id. (quoting 

United States v. McCarthy, 77 F.3d 522, 529 (1st Cir. 1996)). On 

the other hand, we review the district court's legal 

determinations, including its application of the law to the facts, 

de novo. Id. at 724. 

C. Discussion 

Once a suspect has invoked the right to counsel during 

a custodial interrogation, all questioning must stop until counsel 

can be provided. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). 

But this request for counsel must be clear and unambiguous. Davis 

v. United States, 512 U.S. 452, 459 (1994) (statement, "Maybe I 

should talk to a lawyer," was not an unambiguous request for 

counsel, id. at 462). "[I]f a suspect makes a reference to an 

attorney that is ambiguous or equivocal in that a reasonable 

officer in light of the circumstances would have understood only 

that the suspect might be invoking the right to counsel," officers 

need not stop questioning. Id. 

1. Dudley's Request to "call Gordon" 

Here, Dudley first argues that his statement to his wife 

as he was taken from the apartment (something along the lines of 
- 12 - 

"call Gordon to get ahold of Joseph about the -- about getting a 

lawyer" or "call Higgins") was a clear and unambiguous invocation 

of his right to counsel. We do not agree. 

Dudley testified that on the day of the search he was 

coming out of the bathroom when he heard "a commotion." According 

to Dudley, when he walked into the living room, a police officer 

immediately grabbed his shoulder and led him from the apartment. 

As he was being taken outside, and while "everybody was rushing 

into the house," he "made mention" to his wife, who was standing 

at the door, that she should "call Gordon to get ahold of Joseph 

about the -- about getting a lawyer." Lori similarly testified 

that shortly after the police entered her home, Dudley told her 

"to call Higgins, his lawyer." Dudley contends that if Lori "heard 

his request, there can be no doubt that the officers seizing [] 

Dudley also heard the request." But neither Dudley nor Lori 

claimed that Dudley yelled or shouted his request -- testifying 

instead that Dudley "said" or "mentioned" to Lori that she should 

call his attorney. 

Lori further said that when, in response to her husband's 

request, she reached for the telephone to call Dudley's attorney, 

an officer told her that she could not use the telephone.10 The 

 10 She acknowledged on cross examination, however, that she 

was never handcuffed or told that she could not leave the 

apartment, and that if she had wanted to call someone she could 

have left the apartment and used someone else's phone. 
- 13 - 

implication being, Dudley argues, that the officer must have heard 

Dudley's request and was prohibiting her from carrying it out. 

Agent Fife, who was a member of the entry team, testified 

that he did not hear Dudley say anything as he first made contact 

with him upon entering the apartment.11 And Agent Conley, who was 

also a member of the entry team and who was present on the landing 

when Dudley was removed from the apartment, testified that he never 

heard Dudley say anything about an attorney. 

In considering all the evidence presented and making 

credibility determinations, the district court concluded that 

there was no evidence the officers had heard Dudley's request to 

his wife. And the evidence shows that -- crediting that Dudley 

made this statement -- it nonetheless would have been made in the 

chaos of the initial protective sweep, as ten officers, with their 

guns in the low and ready position, moved quickly through the front 

door trying to secure the apartment. 

Taken as a whole, we find that the evidence supports the 

district court's findings, and, as such, we find no clear error. 

See Camacho, 661 F.3d at 723 ("[W]e 'will uphold a denial of a 

motion to suppress if any reasonable view of the evidence supports 

it.'" (quoting United States v. Mendez-de Jesus, 85 F.3d 1, 2 (1st 

Cir. 1996))). "[W]hen 'the district court chooses to draw a 

 11 Agent Fife acknowledged that he may have been branching off 

into another area by the time Dudley passed his wife at the door. 
- 14 - 

reasonable (though not inevitable) inference from a particular 

combination of facts,' that inference is entitled to respect." 

Hughes, 640 F.3d at 434 (quoting United States v. Espinoza, 490 

F.3d 41, 46 (1st Cir. 2007)). This is especially true where, as 

here, "evaluations of witnesses' credibility are concerned" since 

we must be especially deferential to the district court's 

credibility findings. United States v. Nee, 261 F.3d 79, 84 (1st 

Cir. 2001) (quoting United States v. Jones, 187 F.3d 210, 214 (1st 

Cir. 1999)). 

Finding no clear error in the district court's findings, 

our inquiry is a simple one. If no officer heard Dudley's 

statement to his wife, it could not have been a clear invocation 

of his right to counsel. "[T]his is an objective inquiry," Davis, 

512 U.S. at 459, and officers could not have objectively understood 

a statement they did not hear to be an assertion of the right to 

counsel. 

But even assuming the entry team officers heard Dudley's 

request to his wife as they moved through the apartment, such a 

request simply "does not unequivocally demand assistance, request 

the lawyer's presence, or otherwise clearly indicate an 

unwillingness to make a statement absent presence of an attorney." 

United States v. Oquendo-Rivas, 750 F.3d 12, 19 (1st Cir. 2014). 

Under the Davis standard, Dudley had to "articulate his desire to 

have counsel present sufficiently clearly that a reasonable police 
- 15 - 

officer in the circumstances would understand the statement to be 

a request for an attorney." Davis, 512 U.S. at 459. Telling his 

wife "to call Gordon to get ahold of Joseph about the -- about 

getting a lawyer," is not sufficiently clear to adequately inform 

officers whether or not Dudley wanted an attorney present for 

subsequent questioning.12 See Grant-Chase v. Comm'r, N.H. Dep't 

of Corr., 145 F.3d 431, 436 (1st Cir. 1998) (finding reasonable a 

state court's determination that a pre-Miranda request to call a 

lawyer was "ambiguous as to purpose" because it was unclear whether 

the suspect sought "the assistance of an attorney in dealing with 

the forthcoming interrogation" and concluding that in the face of 

such ambiguity officers were "within their rights" "to continue 

the interrogation without asking for clarification"); United 

States v. Fontana, 948 F.2d 796, 806 (1st Cir. 1991) (suspect's 

instruction to his wife to call an attorney -- made while in the 

presence of an officer -- was not a reassertion of the right to 

counsel); cf. Obershaw v. Lanman, 453 F.3d 56, 65 (1st Cir. 2006) 

(suspect inquiring "whether he could talk to a lawyer, rather than 

expressly asserting that he in fact wanted to do so" was not an 

unambiguous request for counsel). Accordingly, we conclude that 

Dudley's request to his wife that she "call Gordon" was not an 

unambiguous invocation of his right to counsel. 

 12 We note that Dudley made no incriminating statements until 

after he received the Miranda warnings. 
- 16 - 

2. Dudley's Other Alleged Requests for Counsel 

As for Dudley's alleged requests for counsel before and 

during his interrogation in Agent Fife's SUV, Dudley argues that 

the district court committed clear error in finding that Dudley 

never invoked this right. At the suppression hearing, both Agents 

Fife and Conley testified that Dudley never mentioned an attorney. 

Agent Fife further testified that Dudley never asked to stop the 

interview. And while Dudley did testify that he requested a 

lawyer, he also testified that he understood his rights and was 

"quite protective" of them (indeed he testified that he knew to 

ask to see the search warrant and to use the phrase "probable 

cause" when challenging his arrest), but that he nevertheless 

continued answering the officer's questions after allegedly 

invoking his right to counsel on three separate occasions. 

The district court did not find this testimony 

credible,13 "deem[ing] it unlikely that the defendant would have 

 13 Highlighting minor inconsistencies in the agents' testimony 

(e.g., differences among the agents as to when, or if, Dudley's 

interview was interrupted by Agent Cote), Dudley argues that it 

was clear error for the district court to find Dudley's testimony 

unreliable because his testimony, as opposed to the agents, "was 

comprehensive and unwavering." Dudley also argues that because 

the agents admittedly did not consider Dudley to be in custody, 

"his asking for an attorney was not perceived as invoking his right 

to counsel under Miranda and therefore [was] more forgettable to 

the agents." These arguments go nowhere as the district court 

explicitly noted a number of these same inconsistencies when making 

its credibility determinations. For example, the district court 

noted the discrepancies surrounding Agent Cote's disruption of the 

interview, but unambiguously credited Agent Fife's testimony while 
- 17 - 

proceeded to answer the officers' questions had he invoked his 

right to an attorney." Rather, the district court found it likely 

that Dudley chose to continue answering questions "because he 

perceived an advantage, or at least no harm, in doing so." This 

credibility determination was reasonable and was well within the 

trial court's purview. As such, we will not second-guess the 

district court's findings. See United States v. McGregor, 650 

F.3d 813, 820 (1st Cir. 2011) ("Clear-error review is highly 

deferential, requiring us to let the judge's fact-sensitive 

conclusions and credibility calls stand unless we are left with a 

definite and firm conviction that the judge made a mistake."). 

The district court's conclusion that Dudley never 

unambiguously invoked his right to counsel was not clearly 

erroneous. Accordingly, the motion to suppress was properly 

denied. See Davis, 512 U.S. at 462 ("Unless the suspect actually 

requests an attorney, questioning may continue."). 

II. Dudley's Evidentiary Challenge 

Dudley next argues that the district court committed 

reversible error by permitting the government to play two thirtysecond video excerpts depicting child pornography for the jury in 

violation of Federal Rule of Evidence 403. 

 

noting that nothing turned on the distinction. The evidence 

adequately supports the district court's findings. 
- 18 - 

A. Standard of Review

We review the district court's Rule 403 determination 

for abuse of discretion. United States v. Mangual-Corchado, 139 

F.3d 34, 43 n.22 (1st Cir. 1998). Under the rule, "court[s] may 

exclude relevant evidence if its probative value is substantially 

outweighed by a danger of . . . unfair prejudice . . . or needlessly 

presenting cumulative evidence." Fed. R. Evid. 403. But "this 

rule protects defendants only against evidence that would produce 

unfair prejudice, as '[b]y design, all evidence is meant to be 

prejudicial.'" United States v. Breton, 740 F.3d 1, 14 (1st Cir. 

2014) (emphasis and brackets in original) (quoting United States 

v. Varoudakis, 233 F.3d 113, 122 (1st Cir. 2000)). And "[w]e give 

great deference to a district judge's balancing of probative value 

versus unfair prejudice." Id. 

B. The Video Excerpts 

Prior to trial on the possession matter, Dudley filed a 

motion in limine offering to stipulate that the CDs found in his 

home contained child pornography as defined by federal law, and 

thus, sought to preclude the government from showing the jury any 

images of child pornography. Alternatively, Dudley sought to limit 

publication to one image and/or to limit the image, or images, to 

those that were "less inflammatory," such as "those depicting 

children in sexually suggestive poses" rather than, for example, 

an image of "adults sexually abusing children." Dudley also sought 
- 19 - 

to limit the images to show only the bodies of the children because 

"[t]he expressions on the faces of the children who are being 

abused are heartbreaking and [would] most certainly inflame the 

passions of the jury." 

For its part, the government sought to introduce three 

videos (out of approximately one hundred) from the DVDs found in 

Dudley's office14 and to play a thirty-second clip from each for 

the jury. The first two videos were approximately twelve and 

fifteen minutes long, respectively, and depicted sexual activity 

between adults and children.15 The forensic evidence showed that 

both of these videos had been opened using the password-protected 

laptop computer seized from Dudley's bedroom. The third video, 

which the government ultimately chose not to play for the jury, 

was over two minutes long and also showed explicit images of 

children. That video had been shared from Dudley's IP address and 

downloaded by Agent Conley during the course of his investigation. 

In opposing Dudley's motion, the government argued that: (1) it 

was not obligated to accept Dudley's stipulation and was "entitled 

 14 Evidence showed that a similar Phillips DVD was found in 

Dudley's office containing church-related materials. During his 

interrogation with Agents Fife and Conley Dudley had claimed to be 

a pastor and said that he held weekly services in his apartment. 

15 These video files were titled: "pthc -- open -- euro family 

young sex education very young girl a.mpg" and "(pthc) compilation 

(sex bj cum).wmv". The third video was titled: "(pthc) 8yr mom 

rubbs daughter.mpg". 
- 20 - 

to prove its case by evidence of its own choice"; (2) the nature 

of the videos was relevant to issues of knowledge and lack of 

mistake that the videos were child pornography; and (3) 

introduction of those particular videos (along with the forensic 

evidence) would "demonstrate the unlikelihood that the videos were 

present in [Dudley's] apartment without his knowledge." 

After viewing the challenged videos (and proposed 

excerpts) and conducting its Rule 403 balancing, the district court 

concluded that Dudley's "requested limitations would limit the 

probative value of the proffered evidence while doing little to 

nothing to limit the prejudicial impact," which the district court 

noted was "not unfair prejudice in any event." In the district 

court's assessment, the government was entitled to present a 

limited number of images to meet its burden to prove -- not just 

possession -- but knowledge and lack of mistake. The district 

court further determined it could not force the government to 

accept Dudley's offer to stipulate "[b]ecause the images [were] 

part of the Government's narrative and probative on multiple 

elements of the offense." 

In the end, two (of three) videos were admitted during 

the government's case-in-chief, and two thirty-second excerpts 

were played for the jury during the government's closing argument. 
- 21 - 

C. Discussion

On appeal, Dudley argues that the district court 

committed reversible error when it permitted the government to 

play these thirty-second excerpts of child pornography to the jury 

because the -- admittedly "disturbing" -- videos created a risk of 

unfair prejudice that far outweighed the probative value. Finding 

no abuse of discretion, we affirm. 

Acknowledging that "the prosecution is entitled to prove 

its case by evidence of its own choice and is not required to 

accept a defendant's offer to stipulate," see Old Chief v. United 

States, 519 U.S. 172, 183 (1997) ("[A] defendant's Rule 403 

objection offering to concede a point generally cannot prevail 

over the Government's choice to offer evidence showing guilt and 

all the circumstances surrounding the offense."), Dudley 

nevertheless argues that his willingness to stipulate that the 

images on the disks were child pornography lessened the probative 

value of the videos to such an extent that it was reversible error 

for the district court to allow them to be played -- no matter how 

brief the excerpt.16 Although Dudley was willing to stipulate to 

 16 Dudley relies on United States v. Merino-Balderrama, 146 

F.3d 758 (9th Cir. 1998) and United States v. Cunningham, 694 F.3d 

372 (3d Cir. 2012) to argue that it was reversible error to play 

the video excerpts to the jury given Dudley's willingness to 

stipulate. But those cases are easily distinguishable. In MerinoBalderrama, the government offered no direct or circumstantial 

evidence that the defendant ever saw the films -- only the box 

covers. 146 F.3d at 762-63. As such, the court concluded that 
- 22 - 

the content of the DVDs, however, he consistently denied knowledge, 

maintaining that he did not know what was on the disks and that he 

had never accessed the files. Consequently, his proposed 

stipulation only went so far. See United States v. Eads, 729 F.3d 

769, 778 (7th Cir. 2013) ("A stipulation about the content of 

charged images only goes so far if it is silent with respect to 

the defendant's knowledge of the images in his possession."). 

Framing these issues for the jury at opening, defense 

counsel queried "[w]ho was in possession, who was in knowing 

possession," and noted: "the Government references knowing 

possession of the diskettes and that's all this case is about." 

Defense counsel explained to the jury that the evidence would show 

Dudley ran a computer salvage operation and that he had "lots of 

computers . . . lots of hard drives . . . and all kinds of different 

ways in which one could come into possession of computer material 

. . . ." Given Dudley's salvage business, defense counsel 

emphasized Dudley's "disavow[al] that all of this stuff is his," 

 

the films were less probative of scienter than were their covers. 

Id. at 762. The court's decision in Cunningham largely turned on 

the fact that the district judge had not personally examined the 

videos before deciding to admit them under Rule 403. 694 F.3d at 

388 (explaining that "because the District Court abused its 

discretion when it decided not to watch the videos before admitting 

them under Rule 403, its underlying Rule 403 determination is not 

entitled to the full range of deference that we would normally 

give to it on appeal"). 
- 23 - 

concluding "if you don't do something intelligently, if you don't 

do something voluntarily, you do something because of either 

mistake or accident or error, you're not knowingly in possession 

of that item." 

Despite Dudley's proposed stipulation, then, it seems 

clear that the government would have retained the burden to prove 

that Dudley had knowingly possessed child pornography and, 

therefore, "showing the images served a valid, non-cumulative, 

purpose." Eads, 729 F.3d at 778. The videos provided evidence 

that anyone who played those files for just thirty seconds -- files 

that had been opened and played on Dudley's password-protected 

laptop -- would have known that the videos contained child 

pornography, thus making it more probable that Dudley knowingly 

possessed child pornography. 

The government offered the clips, along with forensic 

evidence that the graphically-titled files were downloaded and 

played on Dudley's computer and that the same password-assigned 

user had searched the Ares program for keywords typical of child 

pornography (e.g., "teen sex," "family sex," "inzest," "kids 

having sex," "voyeir young girls," and "daughter sex"), to prove 

Dudley's knowledge and lack of mistake or accident. Indeed, before 

playing the excerpts,17 the prosecutor explained that he was going 

 17 Dudley further claims that the risk of unfair prejudice was 

"maximized" because the clips were played during the closing 
- 24 - 

to show "the very first 30 seconds" of the two videos so that the 

jury could consider if there was any question in their minds 

whether someone who accessed the DVD, opened the file, and saw 

just the very first seconds "would know that these videos 

constituted child pornography and that the possessor of those DVDs 

was knowingly possessing child pornography." And the government 

specifically cautioned that although the jury "had to see a very 

short excerpt from these videos" to "appreciate what it was," they 

should not make "a decision based on raw emotion or because [they] 

view these videos as being evil." 

While "[t]he trial judge's job is to avoid unfair 

prejudice," the district court "is not required to scrub the trial 

clean of all evidence that may have an emotional impact." United 

States v. Morales-Aldahondo, 524 F.3d 115, 120 (1st Cir. 2008). 

 

argument, immediately before the jury was asked to deliberate. 

The government counters that this argument was waived because, 

although Dudley objected to the publishing of the videos, he did 

not specifically object to the videos being played during the 

prosecution's closing. Indeed, when the prosecutor explained that 

he planned to show the videos during his closing, defense counsel 

stated that this procedure was "[f]ine." In any event, this 

argument need not detain us long, since even assuming, favorably 

to Dudley, that the argument was not waived, the distinction is 

not determinative. Watching these videos was no doubt incredibly 

difficult whether they were viewed at the end of the first trial 

day (with a full night to dwell on them) or during the closing and 

"from the vista of a cold appellate record" we cannot say that the 

difference necessarily tips the scales in Dudley's favor. United 

States v. Dowdell, 595 F.3d 50, 74 (1st Cir. 2010) (noting that 

"[t]he trial court has wide latitude in determining when the amount 

of unfair prejudice has tipped the scale too far"). 
- 25 - 

Here, the judge viewed the videos, and the proposed excerpts, and 

"properly balanced the competing concerns of Rule 403" in denying 

Dudley's objection to showing the video excerpts to the jury. Id. 

The video excerpts (in combination with the forensic evidence) 

were probative of whether Dudley knowingly possessed child 

pornography and rebutted Dudley's defense that he mistakenly 

acquired the DVDs. We see no reversible error. 

THE PERJURY MATTER 

As the reader may recall, after testifying at the 

suppression hearing in the possession matter, Dudley was charged 

by indictment with one count of false declaration before the court, 

stemming from statements he made under oath that he had invoked 

his right to an attorney. Here, Dudley challenges the district 

court's denial of his motion for judgment of acquittal in the 

perjury matter, arguing that the government "did not prove beyond 

a reasonable doubt that his statements were false, nor did it prove 

that [he] knew they were false at the time he made them." After 

review, we affirm. 

I. Sufficiency of the Evidence 

A. Perjury Trial

A jury trial was held in the perjury matter.18 Special 

Agents Fife and Conley testified, as did Dudley's wife, Lori. In 

 18 Since Dudley attacks the sufficiency of the evidence in the 

perjury matter, we recite the relevant facts in the light most 
- 26 - 

brief, Agents Fife and Conley testified to the events surrounding 

the search of Dudley's residence and the subsequent interrogation 

of Dudley in Agent Fife's SUV. The agents testified that at no 

time -- upon entry to the apartment, before the interrogation or 

during -- did Dudley ask to speak with a lawyer. Agent Fife also 

explained that he, Agent Conley, and Dudley had all testified at 

the April 5, 2012 suppression hearing. Portions of the suppression 

hearing transcript were then admitted into evidence. 

At the close of the government's case-in-chief, the 

district court denied Dudley's motion for judgment of acquittal, 

rejecting Dudley's two arguments: (1) that the indictment 

(specifically paragraph four)19 required the government to prove 

 

favorable to the verdict. See United States v. Alverio-Meléndez, 

640 F.3d 412, 416 n.1 (1st Cir. 2011). 

19 The indictment provides, in relevant part: 

3. At the time and place alleged, JOEL DUDLEY, while 

under oath, knowingly declared before the Court . . . as 

follows . . . 

Q: No, sir, I'm asking on August 20th how many 

times are you telling this Court that you told them 

you wanted a lawyer? 

A: Three. 

Q: Three separate occasions. 

A: Yes.

Q: Prior to being interviewed and during the 

interview. 

A: Yes. 

Q: You told them you wanted a lawyer. 

A: Yes, I did. 
- 27 - 

that Dudley did not invoke his right to counsel at any point -- 

not just during the interrogation with Agents Fife and Conley -- 

and the government's failure to call the other officers on the 

entry team rendered the evidence insufficient; and (2) that 

evidence of materiality was insufficient because if, as Agents 

Fife and Conley testified, Dudley was not in custody, whether he 

invoked his right to counsel was immaterial. Denying the motion, 

the district court concluded that the indictment "refers to Conley 

and Fife throughout" and that "even if [Dudley] had asked for 

lawyers at other times, if he testified falsely deliberately as 

regards to what he told Fife and [Conley], the Government is safe 

as far as the motion is concerned." Regarding the materiality 

issue, the district court found that the statement was material 

because "it was intended to be material as of the time the 

statement was made." 

After Dudley's sufficiency motion was denied, Lori 

testified for the defense. Lori stated that as the officers 

entered the apartment, Dudley told her to "call Higgins, his 

 

Q: And your testimony under oath today is that 

they basically ignored that and continued to 

question you; is that correct? 

A: Yes, that is correct. 

4. The italicized testimony of JOEL DUDLEY, as he 

then and there well knew and believed, was false in that 

DUDLEY did not invoke his right to counsel or otherwise 

tell investigators he wanted a lawyer at any time prior 

to or during the August 20, 2012 interview. 
- 28 - 

lawyer." Lori testified that she was in the living room and that 

Dudley was in the hallway when this request was made, but despite 

that distance she confirmed that Dudley did not "yell" this 

request. After Lori testified, the defense rested. Dudley did 

not renew the motion for judgment of acquittal at the end of his 

case. The case was then submitted to the jury, and Dudley was 

found guilty. Dudley did not renew his motion for acquittal after 

the guilty verdict. 

B. Discussion

As a threshold matter, we note that Dudley's failure to 

renew his motion for judgment of acquittal at the close of the 

entire case (after offering evidence in his defense) and following 

the guilty verdict, constitutes a waiver of his motion. See United 

States v. Maldonado-García, 446 F.3d 227, 230 (1st Cir. 2006) 

(noting that failure to renew a motion for acquittal at the close 

of all evidence or following a jury verdict constitutes a waiver 

of an earlier motion). Therefore, we review for "clear and gross 

injustice" only.20 Id. Finding none, we affirm. 

 20 The government also argues that Dudley waived specific 

sufficiency arguments raised on appeal by failing to raise them 

below. See United States v. Foley, 783 F.3d 7, 12 (1st Cir. 2015) 

("Under our precedent, although a general sufficiency-of-theevidence objection preserves all possible sufficiency arguments, 

a motion raising only specific sufficiency arguments waives 

unenumerated arguments."). But given our broader conclusion as to 

waiver, we need not determine whether (or not) Dudley's sufficiency 

arguments below preserved his appellate arguments. See id. (noting 
- 29 - 

To evaluate Dudley's challenge, "we consider whether a 

rational jury could have concluded that the government proved each 

element of the charged offenses beyond a reasonable doubt." United 

States v. Morales-Machuca, 546 F.3d 13, 20 (1st Cir. 2008). "In 

so doing, we view the evidence in the light most favorable to the 

jury's guilty verdict and 'resolve all questions of credibility 

and reasonable inferences in favor of the verdict.'" Id. (quoting 

United States v. Lizardo, 445 F.3d 73, 81 (1st Cir. 2006)). 

"A statement under oath constitutes perjury if it is [1] 

false, [2] known to be so and [3] material to the proceeding." 

United States v. Pagán-Santini, 451 F.3d 258, 266 (1st Cir. 2006) 

(citing 18 U.S.C. § 1623). On appeal, Dudley asserts there was 

insufficient evidence as to the first two elements -- falsity and 

knowing falsity. Viewing the record in the light most favorable 

to the verdict, however, we think that a rational jury could have 

found Agents Fife's and Conley's testimony, that Dudley at no time 

requested an attorney, more credible than Dudley's contradictory 

suppression hearing testimony. 

In addition to testifying that Dudley never requested an 

attorney, Agent Fife testified that Dudley: (1) asked to see the 

search warrant; (2) was read his Miranda warnings; and (3) affirmed 

that he "understood his rights." Still, Agent Fife further 

 

"that a general sufficiency objection accompanied by specific 

objections [may] preserve[] all possible sufficiency objections"). 
- 30 - 

testified that Dudley continued to talk to the officers for 

approximately forty minutes (despite Dudley's testimony that he 

had repeatedly invoked his right to counsel). Agent Conley's 

testimony largely mirrored Agent Fife's testimony, and Agent 

Conley emphasized that he was "100 percent certain" that Dudley 

did not ask for a lawyer at any point during Agent Conley's 

interactions with him. From this, the jury reasonably could have 

concluded -- much like the district court in the possession matter 

-- that it was unlikely Dudley would have continued answering the 

officers' questions for forty minutes if he had in fact invoked 

his right to counsel. In other words, the jury reasonably could 

have concluded that Dudley's unequivocal suppression-hearing 

testimony -- that "prior to being interviewed and during the 

interview" he invoked his right to counsel but that these 

invocations were simply ignored by Agents Fife and Conley -- was 

knowingly false. 

Finally, Dudley argues that the evidence was 

insufficient to prove that Dudley never requested counsel prior to 

his interview with Agents Fife and Conley (i.e., his request to 

his wife), and, therefore, the government has not meet its burden 

to prove that Dudley knowingly made a false statement to the court. 

But the indictment clearly referred to Dudley's testimony that he 

had invoked his right to counsel during his interrogation by Agents 

Fife and Conley. Specifically, the indictment concerned "whether 
- 31 - 

[Dudley] had invoked his right to counsel during an interview with 

law enforcement." 

In sum, the jury had sufficient bases to convict Dudley 

of false declaration before the court, in violation of 18 U.S.C. 

§ 1623(a), and finding no "clear and gross injustice," we affirm. 

CONCLUSION 

For the reasons articulated above, we affirm Dudley's 

convictions. 

Affirmed.