Submitted: October 21, 2016
from United States District Court for the District of
Minnesota - St. Paul
LOKEN, SMITH,  and COLLOTON, Circuit Judges.
convicted James Needham of possession of child pornography,
in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2),
and distribution of child pornography, in violation of 18
U.S.C. § 2252(a)(2) and (b)(1). The district
courtsentenced Needham to two concurrent
120-month sentences and 15 years' supervised release. On
appeal, Needham challenges the district court's (1)
evidentiary rulings, (2) rejection of his requested
definition of "distribute, " and (3) denial of his
motion for new trial and request for an evidentiary hearing
on juror misconduct. For the reasons discussed below, we
2010, the National Center for Missing and Exploited Children
received complaints of suspected child pornography on various
GROU.PS websites. GROU.PS is a social-networking platform
that enables users to create online groups through which
group members can share images and videos.
on these complaints, the FBI began investigating the reported
GROU.PS sites. Special Agent Daniel O'Donnell and his
team accessed these sites, including one particular group
named "boy2kid, " using an administrative account.
Special Agent O'Donnell verified that boy2kid's
default album contained images of child pornography. In
September 2010, the FBI executed a search warrant at
GROU.PS's headquarters and obtained information
concerning boy2kid and other groups suspected of distributing
child pornography. The information recovered included videos,
images, chat messages, and comments; group members'
profile names, e-mail addresses, and Internet Protocol (IP)
addresses; and dates and times of activity on the groups.
Evidence of Possession and Distribution of Child
searching GROU.PS, agents discovered GROU.PS had disabled the
public version of the boy2kid group. Despite its removal from
public access, the data for the boy2kid group remained stored
on the GROU.PS server. Special Agent O'Donnell accessed
the preserved version of the site and took a screenshot of
how the boy2kid group appeared to its members.
trial, the government introduced, and the district court
admitted, this screenshot over Needham's foundation and
hearsay objections. Special Agent O'Donnell testified
that aside from a slight difference in background color, the
screenshot accurately represented how the boy2kid group
appeared before GROU.PS disabled the public link.
Specifically, Special Agent O'Donnell stated the
"content and categories [depicted in the screenshot]
were exactly the same" as that on the formerly public
screenshot of boy2kid group showed that a member known as
"rezchub61" uploaded 11 images containing child
pornography to the group's default album. Special Agent
O'Donnell took a screenshot of rezchub61's profile
page, which was admitted over Needham's foundation,
hearsay, relevance, and Confrontation Clause objections.
Agent O'Donnell testified that GROU.PS provided him the
IP address that rezchub61 used when uploading child
pornography to the boy2kid group and the e-mail address
associated with rezchub61's member account
("email@example.com"). Using this information,
Special Agent O'Donnell subpoenaed the Internet service
provider (ISP) associated with rezchub61's IP address and
learned that James Needham was the only customer connected to
that IP address. Special Agent O'Donnell created a
document that listed each of the 11 images that rezchub61
uploaded to the boy2kid group; identified the time and date
of each upload; identified the IP address, ISP, and physical
location (city, state, country) from which the images were
uploaded; and listed the "User Email" associated
with each of the uploads as "firstname.lastname@example.org."
This document ("Government's Exhibit 51") was
admitted over Needham's foundation, hearsay, relevancy,
and Confrontation Clause objections.
on the information provided by the ISP, the FBI executed a
search warrant and seized Needham's
computers. During the search, Special Agent Joe Ogden
and another agent interviewed Needham outside his home. At
trial, Special Agent Ogden testified that during this
interview Needham admitted to possessing child pornography;
uploading child pornography to GROU.PS sites (including the
boy2kid group); and using both the member name
"rezchub61" or "redchub61" and e-mail
address "email@example.com" or
Requested Definition of "Distribute"
the final charge conference, Needham requested a jury
instruction that defined "distribution" as
requiring "proof that another person actually downloaded
or obtained the images." The district court denied the
requested instruction in favor of the Eighth Circuit Model
Jury Instruction on the distribution of child pornography.
The jury found Needham guilty of both possessing and
distributing child pornography. The district court sentenced
Needham to two concurrent 120-month sentences and 15
years' supervised release.
Motion for New Trial Based on Juror Misconduct
voir dire, the district judge asked the prospective jurors if
they knew any of the attorneys. None of the prospective
jurors acknowledged knowing Laura Provinzino, one of the