PRECEDENTIAL


        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                  _____________

                       No. 19-3035
                      _____________

           UNITED STATES OF AMERICA

                             v.

                MICHAEL HEINRICH,
                             Appellant
                  _____________

     On Appeal from the United States District Court
        for the Western District of Pennsylvania
         District Court No. 1-17-cr-00013-001
      District Judge: Honorable David S. Cercone

                    Argued June 18, 2020

 Before: SMITH, Chief Judge, CHAGARES, and PORTER,
                     Circuit Judges

                (Filed: August 18, 2020)


Adam N. Hallowell         [ARGUED]
Laura S. Irwin
Office of United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
       Counsel for Appellee

Samantha Stern                    [ARGUED]
Office of the Federal Public Defender
1001 Liberty Avenue
1500 Liberty Center
Pittsburgh, PA 15222
       Counsel for Appellant
                     ________________

                         OPINION
                     ________________


SMITH, Chief Judge.

       Michael Heinrich pleaded guilty to the production of
child pornography. On appeal, he challenges the District
Court’s pretrial exclusion of his proffered expert evidence.

                              I

       After a four-year-old told her parents that Heinrich, a
family friend, had pulled her pants down and taken pictures of
her, Pennsylvania state police conducted a consensual search
of Heinrich’s electronic devices looking for child pornography.
Police found over a dozen sexually explicit images and/or
                              2
videos of two children.

       Heinrich was charged with fifteen counts of using or
inducing a minor to engage in sexually explicit conduct for the
purpose of producing a visual depiction of that conduct, in
violation of 18 U.S.C. § 2251(a), as well as one count of
possessing material depicting the sexual exploitation of a
minor, in violation of 18 U.S.C. § 2252(a)(4)(B). Heinrich
admitted both to taking the pictures and videos and that they
depicted sexually explicit conduct. He nonetheless planned to
defend himself against the production charges by claiming he
lacked the specific intent required under § 2251(a). To this
end, Heinrich proffered an expert witness: psychologist Robert
Schwartz.1 The government moved to exclude the proffered
1
  Dr. Schwartz planned to testify on a range of topics, including
(1) a physical and behavioral description of Heinrich; (2)
Heinrich’s tragic childhood and family background; (3)
Heinrich’s self-reported sexual history; (4) his impressions and
the significance of the Abel and Look Assessments, which
suggest that Heinrich is not sexually interested in minors; (5)
his impressions and the significance of other psychological
tests performed on Heinrich indicating a sexual interest in adult
women, lack of interest in sexual deviance, and a depressed
outlook on life; (6) his impressions of Heinrich’s hoarding
behavior, of which he believes photography is a manifestation;
(7) his impressions of statements made by Heinrich during the
course of his evaluation; and (8) his impressions of statements
made by Heinrich’s sister and son during the course of his
evaluation. Ultimately, Dr. Schwartz sought “to testify that it
is his impression, given his background and expertise, that Mr.
Heinrich intended to merely capture the minors’ beauty and
                                3
evidence, arguing that it was inadmissible (1) to negate the
requisite mens rea because the charged offenses were general
intent crimes, and (2) under Federal Rules of Evidence 401,
403, 702, or 704(b).2

       After a pretrial hearing on the applicability of Rule
704(b),3 the District Judge’s law clerk conducted a telephonic
status conference, “advis[ing counsel] that the court was
intending to grant the government’s motions to exclude
defendant’s expert testimony.” Heinrich Br. 16 (quoting App.
2). The law clerk explained that the basis for the exclusion was
Rules 403 and 704(b) and that a written opinion would be
forthcoming. No opinion or order was ever docketed. Notably,
the District Judge did not participate in the telephone status
conference. The call went unrecorded and has not been
transcribed.

       Based on what appeared to be an evidentiary “ruling,”
Heinrich entered a conditional guilty plea to three counts of
violating § 2251(a). He reserved the right to appeal the
exclusion of the proposed expert evidence. Heinrich now
argues, among other things, that we should remand this case to
the District Court because the evidentiary exclusion under

innocence in his photographs. . . . [H]e did not intend to create
child pornography when he photographed the minors in this
case.” App. 73–74.
2
  The District Court ruled that the production of child
pornography under § 2251(a) is a specific intent crime. We
need not decide whether that ruling was correct.
3
  At that hearing, the District Court focused exclusively on
Rules 401 and 704.
                               4
Rules 403 and 704(b) was erroneous.

                               II4

        As this appeal centers on a decision to exclude the
proffered expert evidence, we review for an abuse of
discretion. See United States v. Greenspan, 

, 151
(3d Cir. 2019). A court “necessarily abuse[s] its discretion if
it base[s] its ruling on an erroneous view of the law.” Cooter
& Gell v. Hartmax Corp., 

, 405 (1990). It also
abuses its discretion if its decision “rests upon a clearly
erroneous finding of fact . . . or an improper application of law
to fact.” Issa v. Sch. Dist. of Lancaster, 

, 131 (3d
Cir. 2017).

                              III5

       Under Rule 403, a district court has broad discretion to
“exclude relevant evidence if its probative value is
substantially outweighed by a danger of . . . unfair prejudice,
confusing the issues, [or] misleading the jury.” Although “a
detailed balancing statement in each and every case is
unrealistic,” United States v. Eufrasio, 

, 572 (3d
Cir. 1991) (quoting United States v. Long, 

, 766

4
  The District Court had jurisdiction pursuant to 18 U.S.C.
§ 3231. We exercise jurisdiction under 28 U.S.C. § 1291.
5
  Heinrich initially claims that exclusion of the proposed
evidence deprived him of the right to present a defense under
the Fifth Amendment Due Process Clause and the Sixth
Amendment. We do not address that argument here.

                               5
(3d Cir. 1978)), we have a strong preference that a district court
explicitly engage in some 403 balancing on the record. See,
e.g., Egan v. Del. River Port Auth., 

, 277 (3d Cir.
2017) (“[W]e strongly prefer that the District Court explain
how it balanced the Rule 403 considerations.”); 

(“Where an objection does invoke Rule 403, the trial
judge should record his balancing analysis to the extent that his
exercise of discretion may be fairly reviewed on appeal.”).
When a trial court engages in such a balancing process and
articulates on the record the rationale for its conclusion, its
determination is rarely disturbed. See United States v.
Sampson, 

, 889 (3d Cir. 1992); Gov’t of the Virgin
Islands v. Pinney, 

, 918 (3d Cir. 1992).

       If the record fails to include an explicit Rule 403
analysis, “we either ‘decide the trial court implicitly performed
the required balance; or, if we decide the trial court did not, we
undertake to perform the balance ourself.’ We have declined
to balance those factors de novo only where a district court said
nothing about particular evidence’s probative value or
prejudicial effect.” 

(quoting

). Stated differently, we may decline
to perform our own balancing exercise “[w]here [the trial
court’s] rationale is not apparent from the record, [meaning]
there is no way to review its discretion.” 

; see also United States v. Caldwell, 

, 284
(3d Cir. 2014) (“The reasoning underlying the Court’s Rule
403 balancing was not apparent from the record. This omission
provides an independent ground for reversal.”) (citations
omitted); 

–18 (where the trial court’s
reasoning is not apparent from the record, “[w]e are . . . unable

                                6
to defer to the . . . trial court”). Grounds for reversal therefore
exist where a record lacks both an explicit Rule 403 balancing
and any discussion of the district court’s rationale.6

       While we could conduct our own Rule 403 balancing
here, or hold that the District Court implicitly balanced, we will
refrain from doing so for three reasons.

        First, our ability to review for an abuse of discretion is
severely hampered if we are unable to derive from the record a
district court’s rationale for excluding the expert’s proffered
evidence. Here, the record before us lacks any meaningful
discussion by the District Court of Rule 403. Not only did the
District Judge fail to explicitly apply the balancing test, he
neglected to even mention probative value or the potential for
prejudice.

       Second, a district judge is always better positioned than
we are to engage in a thorough Rule 403 analysis in the first
instance. “The trial judge, not the appellate judge, is in the best
position to assess the extent of the prejudice caused a party by
a piece of evidence. The appellate judge works with a cold
record, whereas the trial judge is there in the courtroom.”

; see also United States v. Vosburgh, 

, 537 (3d Cir. 2010) (“[l]ike any balancing test,

6
  This Court has also refused to engage in a de novo Rule 403
balancing where a district court’s analysis was a mere token
effort. See 

(remanding the case
where the entirety of the district court’s analysis consisted of
re-iterating several passages found in the Federal Rules of
Evidence).
                               7
the Rule 403 standard is inexact, requiring sensitivity on the
part of the trial court to the subtleties of the particular situation,
and considerable deference on the part of the reviewing court
to the hands-on judgment of the trial judge”) (internal
quotation marks and citations omitted); Construction Ltd. v.
Brooks-Skinner Building Co., 

, 431 (3d Cir. 1973)
(“The task of assessing potential prejudice is one for which the
trial judge, considering his familiarity with the full array of
evidence in a case, is particularly suited.”). Normally, a record
is sufficiently detailed to enable meaningful appellate review,
but we are not dealing with the typical case. Rather, both
parties ask us to undertake a de novo assessment of expert
evidence where we have little to review. Such an analysis is
best left to the District Court in this instance.

       Third, and most importantly, there simply could not
have been an exercise of discretion here because the District
Judge failed to issue any ruling excluding either the proposed
expert report or any testimony. District judges have broad
powers, some of which they may properly delegate to a law
clerk, who serves as a “judicial adjunct.” Connolly v. Nat’l
Sch. Bus Serv., Inc., 

, 599 (7th Cir. 1999). But a
law clerk’s “duties and responsibilities are to assist [a] judge in
his work, not to be the judge.”

a law
clerk engages—whether through his own initiative or at the
behest of his or her judge—in judicial tasks that are non-
delegable. Compare Sanders v. Union Pac. R.R. Co., 

(9th Cir. 1999) (judge erred by directing law clerk to
preside over final pretrial conference), and Connolly, 

(counsel had no obligation to allow law clerk to mediate
dispute, despite judge ordering the parties to participate), and

                                  8
Riley v. Deeds, 

(9th Cir. 1995) (law clerk
erroneously convened court, in absence of the judge, to read
back testimony for jury), with United States v. Long, 

(9th Cir. 2002) (no error where law clerk read the jury’s
question into the record and discussed alternative Allen charges
with counsel while waiting for the judge to arrive).

        In this case, the District Judge’s law clerk conducted a
one-hour-and-fifteen-minute unrecorded and untranscribed
telephone conference where he advised counsel that the Judge
intended to exclude the proposed expert report under Rules 403
and 704(b). The law clerk also stated that an “opinion to
support this ruling” would be forthcoming. Heinrich Br. 16.
Since this conference call did not involve the District Judge,
and because no formal ruling, order, or opinion was ever
docketed, we are left in the unenviable position—indeed,
impossible position—of attempting to review an adjunct-
presented non-ruling that caused the Defendant to plead guilty
rather than proceed to trial.

       We again renew our admonition that district courts
articulate their Rule 403 reasoning on the record. See 

. A basic part of the balancing process requires
making a record.7 It is simple to do and essential to effective

7
  We emphasize that it is also the responsibility of counsel to
ensure that the record is accurate and complete. Here, the
parties should have insisted that the Court issue a ruling
excluding the proffered expert evidence, if that was the District
Judge’s intent. See, e.g., 

(government requested explicit Rule 403 balancing for the
record).
                               9
appellate review.

       We also expect a district judge to assure that no
inappropriate assumptions of judicial authority or appearances
thereof occur either in chambers or through communications
with parties, counsel, or the public. Regrettably, the District
Judge’s unusual and inappropriate delegation of this telephone
conference to his law clerk (if, in fact, that is what transpired
here), created serious appearance problems.

      For these reasons, we will not as a panel undertake a
de novo Rule 403 analysis.

                               IV

       We are also disinclined to perform a de novo Rule
704(b) analysis as to the proffered expert evidence. Although
the District Court devoted a full hearing to address the
applicability of 704(b), it failed to issue any associated ruling.
Moreover, it is unclear from the record what elements of the
report the District Court allegedly intended to exclude under
Rule 704(b) as opposed to Rule 403. As these and other
previously mentioned issues have obstructed our ability to
review for an abuse of discretion, the District Court should bear
the burden of rectifying the situation.

                                V

       Considering the circumstances, we will vacate the
judgment and remand the case to the District Court for an
explicit ruling on the government’s motion to exclude, to be
accompanied by a detailed memorandum opinion on the

                               10
proffered expert evidence setting forth the Court’s findings and
conclusions.




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