Filed: Dec. 30, 2010
Latest Update: Feb. 21, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4520 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. THOMAS YU, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Gerald Bruce Lee, District Judge. (1:08-cr-00196-GBL-1) Argued: October 29, 2010 Decided: December 30, 2010 Before TRAXLER, Chief Judge, and DUNCAN and KEENAN, Circuit Judges. Affirmed by unpublished opinion. Judge Duncan wrote the opinion
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4520 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. THOMAS YU, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Gerald Bruce Lee, District Judge. (1:08-cr-00196-GBL-1) Argued: October 29, 2010 Decided: December 30, 2010 Before TRAXLER, Chief Judge, and DUNCAN and KEENAN, Circuit Judges. Affirmed by unpublished opinion. Judge Duncan wrote the opinion,..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4520
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
THOMAS YU,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:08-cr-00196-GBL-1)
Argued: October 29, 2010 Decided: December 30, 2010
Before TRAXLER, Chief Judge, and DUNCAN and KEENAN, Circuit
Judges.
Affirmed by unpublished opinion. Judge Duncan wrote the
opinion, in which Chief Judge Traxler and Judge Keenan joined.
ARGUED: Lisa Hertzer Schertler, SCHERTLER & ONORATO, LLP,
Washington, D.C., for Appellant. Jay V. Prabhu, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON
BRIEF: Neil H. MacBride, United States Attorney, Andrew
McCormack, Special Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
DUNCAN, Circuit Judge:
This appeal arises from a jury’s conviction of Thomas Yu on
three counts--alleging possession, receipt, and distribution of
child pornography--in violation of 18 U.S.C. §§ 2252A(a)(5)(B)
and 2252A(a)(2). Yu claims the district court abused its
discretion by limiting his cross-examination of a government
witness and by excluding a defense witness. He further argues
that the district court erred with respect to its jury
instructions and violated Federal Rule of Criminal Procedure 43
by delivering an amended version of those instructions to the
jury in writing, despite his request that it be given in open
court. For the reasons that follow, we affirm.
I.
A.
In August 2006, federal authorities executed a search
warrant at the Illinois home of a man named James Faulds.
Investigators learned that Faulds had been operating a computer
file server that allowed individuals to upload and download
images of child pornography. They further learned that a
computer with an internet protocol address 1 registered to Yu’s
1
“Each computer connected to the Internet is assigned a
unique numerical address, otherwise known as an Internet
protocol or IP address, to identify itself and facilitate the
(Continued)
2
Virginia home had, on July 20, 2006, uploaded forty-four files
containing images of child pornography to Faulds’s computer and
downloaded more than one hundred such files from it.
Acting on this information, federal and state law
enforcement officers executed a search warrant at Yu’s residence
in February 2007. Agents seized a variety of items from his
home, including three desktop computers, two laptop computers,
and more than one hundred computer disks. Forensic review of
these materials revealed, inter alia, more than 9,000 images of
child pornography and records of Internet searches for terms
related to child pornography. Investigators also uncovered
evidence that files containing images of child pornography had
been created in a folder associated with a peer-to-peer file
sharing program 2 on multiple occasions. On October 15, 2008, a
grand jury indicted Yu on three counts of possessing, receiving,
and distributing child pornography.
orderly flow of electronic traffic.” Peterson v. Nat’l
Telecomm. & Info. Admin., 478 F.3d 626, 628 (4th Cir. 2007).
2
“[P]eer-to-peer networks permit the users’ computers to
communicate directly with each other.” United States v. Morace,
594 F.3d 340, 343 (4th Cir. 2010) (quoting Metro-Goldwyn-Mayer
Studios Inc. v. Grokster, Ltd.,
545 U.S. 913, 919-20 (2005))
(internal quotation marks omitted).
3
B.
We briefly review the proceedings in the district court,
with particular attention to the disputes that gave rise to Yu’s
present claims. Shortly after his indictment, Yu moved for
disclosure of materials related to the case against him,
including any expert testimony the government intended to
introduce at trial. In response to Yu’s motion and with the
government’s agreement, the district court entered a discovery
order on October 23, 2008. The order mandated a variety of
disclosures, including that both parties provide notice of any
anticipated expert testimony.
On January 16, 2009, pursuant to the discovery order and
Federal Rule of Criminal Procedure 16(a)(1)(G), 3 the government
filed summaries of the testimony to be offered by its two expert
witnesses. The government had earlier provided Yu with access
to the raw computer data that its forensic experts had
evaluated. Yu employed his own computer forensic examiner, a
woman named Tami Loehrs, to review this data. However, Yu did
3
Rule 16(a)(1)(G) provides, in pertinent part, that “[a]t
the defendant’s request, the government must give to the
defendant a written summary of any testimony that the government
intends to use under Rules 702, 703, or 705 of the Federal Rules
of Evidence during its case-in-chief at trial.” Expert
testimony is governed by Federal Rule of Evidence 702.
4
not disclose any prospective expert testimony--by Loehrs or
anyone else--prior to trial.
Yu’s jury trial began on February 2, 2009. Consistent with
its pre-trial disclosures, the government relied heavily on
expert testimony to link Yu to images of child pornography.
Immigration and Customs Enforcement Agent Joseph Mizell, a
forensic computer expert, testified about a variety of data
extracted from the computers seized from Yu’s home.
For instance, after reviewing images of child pornography
found on one of those computers, Mizell noted that the same hard
drive contained documents that had “the name Thomas Christopher
Yu written on the bottom of them.” J.A. 253. He observed that
some of these documents had apparently been accessed on the same
date as images of child pornography. Agent Mizell confirmed the
presence of similar documents containing Yu’s name on another
computer on which child pornography had been found. He further
testified that he had not found evidence that anyone else had
controlled that machine.
Agent Mizell also testified about the seized computers’
Internet browsing histories. Agent Mizell explained that he had
extracted material related to child pornography from a larger
file containing a record of all websites visited on a particular
computer. He referred to a government exhibit that he had
prepared containing those portions of a computer’s browsing
5
history related to child pornography. The government opted not
to introduce the computer’s complete browsing histories into
evidence.
Defense counsel cross-examined Agent Mizell at length,
eliciting a variety of concessions. Agent Mizell admitted that
he had not searched to see if digital records reflected that
friends of Yu, who might have had access to his computers, had
used the machines to download the illegal files. Agent Mizell
further conceded that he had focused his analysis on material
useful to the prosecution and had “omit[ted] certain images”
that were irrelevant to the search warrant. J.A. 311.
Defense counsel also asked a series of questions about the
criteria Agent Mizell had followed when excerpting information
from the computers’ browsing histories. Agent Mizell
acknowledged that he had “arbitrarily picked out what [he]
thought was relevant.” J.A. 300. He also stated, as he had on
direct examination, that the material presented to the jury did
not reflect the entirety of the computers’ browsing history. In
response to repeated queries by defense counsel, Agent Mizell
explicitly acknowledged on at least seven occasions that he
could not verify whether Yu in particular had conducted the
searches reflected in the computers’ browsing histories or had
actually viewed any of the illegal images. See, e.g., J.A. at
297 (“As you sit here today, you can’t say that Mr. Yu ever
6
viewed a single pornographic image; is that right?” “Correct.”);
id. at 317 (“I take it that you weren’t present and have no
personal knowledge as to who was using the computer [at] those
particular times; is that right?” “That’s right.”);
id. at 326
(“[Y]ou can’t say anyone, Mr. Yu or [his friend] or anyone in
the world actually viewed that particular image on that
particular day?” “No.”).
During his cross-examination of Agent Mizell, defense
counsel attempted to introduce three unauthenticated documents,
which were purportedly prepared by Yu’s forensic examiner, Tami
Loehrs. Defense counsel asserted that the first such document
contained some of the raw data from which Agent Mizell’s
browsing-history excerpts were drawn. Over the government’s
objection, the court gave defense counsel the opportunity to lay
foundation for the document. Defense counsel asked Agent Mizell
a series of questions about the material. Agent Mizell
confirmed that Loehrs had accessed the data at issue, but he did
not know if that information was reflected in the document. The
document was not admitted into evidence.
Shortly after the first document was rejected, defense
counsel asked the court if he could pursue a line of questioning
designed “to show [Agent Mizell] that there is actually evidence
on the computer that . . . he chose to ignore that would really
show that” someone other than Yu had downloaded the illegal
7
images. J.A. 316. After hearing from both sides, the district
court sustained the government’s objection to that line of
questioning.
Defense counsel later referenced a second document that
allegedly contained part of the seized computer’s Internet
browsing history from a particular date. When the government
objected, defense counsel was given another opportunity to lay
foundation. Once again, Agent Mizell was able to confirm that
defense expert Loehrs had accessed the raw data, but he was
unable to speak to how she had prepared the document at issue.
The government renewed its objection to the use of material
“which was not created by [Agent Mizell]” on cross-examination.
J.A. 323. The district court sustained the objection, rejecting
in the process defense counsel’s argument that the material was
intended only to refresh Agent Mizell’s recollection.
Part way through defense counsel’s cross-examination of
Agent Mizell, court adjourned for the day. That evening, Yu
filed notice, for the first time, of his intent to call Tami
Loehrs as an expert witness. Styled as a Rule 16(a)(1)(G)
notice, 4 Yu’s motion described Loehrs’s extensive background as a
4
Yu’s characterization of his motion notwithstanding,
defendants’ obligation to disclose information about expert
witnesses under certain circumstances arises under Federal Rule
of Criminal Procedure 16(b)(1)(C). Here, the district court’s
discovery order created an independent obligation to divulge any
(Continued)
8
computer forensic examiner. It explained that Loehrs would
testify about images and other digital material recovered from
Yu’s computers and describe evidence she found that showed
additional users had access to those machines. The motion cited
Loehrs’s “experience and training in the field of computer
forensic analysis” as the basis for her testimony. J.A. 25C.
It included a twenty-page attachment, consisting of Loehrs’s CV
and a list of the more than one hundred cases in which she had
served as an expert witness.
The next day, the district court ruled that Loehrs could
not testify as an expert witness. The court explained that Yu
had had months since the entry of the discovery order “to engage
an expert . . . and disclose any expert opinions” but had failed
to do so in a timely manner. J.A. 328. Defense counsel
promptly responded that the expert notice had been filed purely
as a “prophylactic measure,” as Loehrs was in fact slated to
testify as a lay witness. J.A. 329. He argued that Loehrs
would speak only to the “chain of custody” of the data that she
gathered from the computers 5 and would “not . . . offer an
planned expert testimony. Yu does not dispute that he was
required to disclose expert testimony in advance of trial.
5
The data at issue included the two excerpts from
computers’ Internet browsing histories noted above, as well as a
(Continued)
9
opinion . . . as to what happened and what didn’t happen.” J.A.
332. He explained that, to the extent expert testimony was
necessary, Yu intended to rely exclusively on the testimony
provided by Agent Mizell.
The district court rejected Yu’s recharacterization of
Loehrs’s testimony. The court noted that Yu had engaged Loehrs
to review forensic data from the seized computers, that she had
done so, and that she had subsequently prepared charts for use
by the defense during trial. The court expressed incredulity at
defense counsel’s claim that he intended “to prove that [Yu] was
not guilty . . ., relying sole[ly] upon the government[]
witness’s testimony.” J.A. 331. Citing Yu’s failure to
disclose Loehrs’s existence until after the trial had started,
the district court dismissed Yu’s efforts to reframe the
substance of her testimony as “sandbagging” and precluded her
from testifying at trial. J.A. 329.
The defense ultimately called two lay witnesses to testify
on Yu’s behalf: Yu’s sister and Yu himself. Yu’s defense
centered on his argument that a friend of his was responsible
for downloading the files recovered from the computers and that
he had been unaware of the files’ presence. When pressed by the
third document that purportedly showed when certain computer
files had been most recently accessed.
10
government on cross-examination, Yu conceded that, on his
theory, his friend had managed to secretly download many of the
illegal images over a period of years, from a computer located
in Yu’s bedroom, just “ten to twelve” feet from his bed. J.A.
482-83. At the conclusion of Yu’s testimony, the defense
rested.
On February 4, 2009, the district court charged the jury in
open court. Its jury instructions included, inter alia, a
thorough description of the government’s burden of proof on
Count II, receipt of child pornography, § 2252A(a)(2). 6 Before
6
The district court’s oral instruction on Count II was as
follows:
Section 2252(a) Subsection(a)(2) of Title 18 of
the United States Code provides in part that “it is a
crime for any person who knowingly receives or
distributes any child pornography that has been mailed
or shipped or transported in interstate or foreign
commerce by any means including by computer or any
material that contains child pornography that has been
mailed or shipped or transported in interstate or
foreign commerce by any means, including by computer.”
To sustain its burden of proof for the crime of
receiving child pornography, the government must prove
the following essential elements beyond a reasonable
doubt.
One, that the defendant did knowingly receive
computer files or any other material that contained
child pornography.
And two, that such material of child pornography
had been mailed or shipped or transported in
interstate or foreign commerce by any means, including
by computer.
And three, that at the time of such receipt of
child pornography, the defendant believed that such
(Continued)
11
beginning deliberations, the jury was provided a written copy of
the court’s instructions.
The following day, the jury sent a note to the court,
asking “[i]f the defendant is aware of ‘another’ person doing
the act of ‘knowingly receiving,’ does it read on the defendant
Thomas Yu unlawfully and knowingly receiving.” J.A. 758. At
about 4:00 pm, the district court convened the parties to
discuss a response. After hearing from both sides, the district
court proposed the following answer:
Concerning receipt of child pornography Count Two, the
essential elements of this offense are in Instruction
16. You may want to re-read Instruction 16.
Additionally, mere knowledge that a crime is or has
been committed does not constitute “knowingly
receiving.” In further response to your question, the
Government must prove that the defendant was aware
material constituted or contained child pornography as
defined further in these instructions.
With respect to Count II of the indictment, the
government is only required to prove that the
defendant knowingly received a single image. However,
you have to be unanimous with respect to the image or
images of child pornography you determine were
received by--by the defendant for that count.
Therefore, with respect to Count II as long as
you find beyond a reasonable doubt that the defendant
knowingly received a single image and that the other
elements of the offense have been proved beyond a
reasonable doubt, you must find the defendant guilty.
J.A. 641-42. Yu has not challenged the propriety of this
instruction, nor has he argued that the court’s original written
instruction as to Count II--which was not included in the record
on appeal--was erroneous.
12
that child pornography was on his computer and he--the
defendant knowingly received it with the intent to
control it. (E.g. view it or store it for later
viewing by the defendant or someone else). If someone
other than the defendant downloaded the child
pornography and the defendant was aware child
pornography was placed on his computer and the
defendant intended to or did exercise control over it
then the defendant has received child pornography.
J.A. 741-42, 759. 7
Defense counsel objected to the last sentence of the
court’s response, arguing that it “propose[d] hypothetical facts
that the jury[]” would “take and apply to this case that weren’t
presented in evidence.” J.A. 735. The district court rejected
defense counsel’s argument and submitted the instruction to the
jury as drafted. It simultaneously sent word to the jury to
return to the courtroom to be dismissed through the weekend. 8
In light of the pending gap in the jury’s deliberations,
defense counsel requested the opportunity to file a motion on
the disputed instruction. The district court consented, and, on
February 6, Yu filed his “motion to modify answer to jury’s
question,” arguing that the last sentence of the district
7
The record only contains a revised jury instruction, which
did not include the initial instruction’s disputed final
sentence. We have included the language of that sentence as it
appeared in Yu’s motion to amend the original instruction. The
government has not challenged the accuracy of that language.
8
Although February 5, 2009 was a Thursday, the court had
earlier advised the jury that court would not be in session on
Friday.
13
court’s supplemental instruction conflated receipt of child
pornography with mere possession of child pornography. J.A.
741.
The court reconvened on February 9. After hearing argument
from both parties on the merits of Yu’s motion, the district
court, without conceding error, offered to “delete the last
sentence entirely.” J.A. 749. Defense counsel agreed that the
alteration would address Yu’s concerns and asked the court to
deliver the revised instruction orally. Noting that the jury
had been given the original supplemental instruction “for less
than five minutes,” before the court “took it back,” the
district court instead opted to give the jury the updated answer
in writing, with a note on it indicating that it had been
revised. J.A. 749-50. The revised instruction was dispatched
just before 10:00 am. About one hour later the jury returned a
guilty verdict on all three counts.
On May 28, 2009, the district court sentenced Yu to
concurrent terms of eighty-four months’ imprisonment on each
count of conviction, to be followed by seven years of supervised
release. This appeal followed.
II.
On appeal, Yu argues that the district court committed
reversible error by: (1) limiting his cross-examination of the
14
government’s forensic expert, (2) precluding a defense witness
from testifying, and (3) providing the jury with a response that
broadened the theory on which he could be found guilty and then
delivering a corrective instruction in writing rather than in
open court. We review the alleged violations in turn.
A.
Yu objects to the district court’s handling of his cross-
examination of Agent Mizell, who testified as a government
forensic computer expert. Yu makes two arguments: (1) that the
district court “precluded an entire line of cross-examination
directed at errors and/or bias inherent in Mizell’s forensic
analysis,” Appellant’s Br. at 25, and (2) that “the district
court erroneously prevented [him] from attempting to refresh
Mizell’s recollection,” id.
Although the Sixth Amendment affords defendants the right
to confront witnesses against them, trial courts enjoy “wide
latitude insofar as the Confrontation Clause is concerned to
impose reasonable limits on . . . cross-examination.” United
States v. Ambers,
85 F.3d 173, 176 (4th Cir. 1996) (quoting
Delaware v. Van Arsdall,
475 U.S. 673, 679 (1986)); see also
United States v. Ayala,
601 F.3d 256, 273 (4th Cir. 2010). We
review the district court’s restrictions on Agent Mizell’s
cross-examination for abuse of discretion, United States v.
Scheetz,
293 F.3d 175, 184 (4th Cir. 2002), and find none.
15
Yu’s first argument is utterly unsupported by the record.
As described above, the transcript of Agent Mizell’s cross-
examination is replete with instances in which Mizell confirmed
that he could not verify whether Yu had in fact uploaded,
downloaded, or viewed images of child pornography. Agent Mizell
also acknowledged that he had presented a selective sample of
the available data, conceded that he had culled the browser
histories with an eye toward developing the case against Yu, and
noted his failure to investigate other potential users of the
seized computers. Agent Mizell could scarcely have been clearer
on these points. In short, defense counsel was given broad
latitude to question Agent Mizell about potential errors and
biases and duly availed himself of the opportunity to do so.
Yu’s claim that the district court precluded inquiries into
these subjects lacks merit.
To the extent that Yu challenges the district court’s
restriction of questions that relied on the raw data prepared by
the defense, his argument fails. It is a fundamental rule of
evidence that authentication or identification of physical
evidence is “a condition precedent to admissibility” and
requires “evidence sufficient to support a finding that the
matter in question is what its proponent claims.” Fed. R. Evid.
901(a); see also United States v. Jones, 356 F.3d 529, 535 (4th
Cir. 2004). Here, the district court found that because Agent
16
Mizell had no way of knowing if Yu’s raw data accurately
reflected the material from which Mizell had worked, there was
not a proper foundation for use of the data in cross-
examination. This determination was not an abuse of the court’s
discretion. See Ayala, 601 F.3d at 272-73 (holding that a
district court did not abuse its discretion by requiring defense
counsel “to abide by . . . elementary [evidentiary] precepts”
during cross-examination “to ensure that the jury was not
misled”).
By the same token, the district court did not err by
refusing to allow defense counsel to “refresh” Agent Mizell’s
recollections of his earlier analysis by referencing the
defense’s raw data. “The matter of refreshing a witness’
recollection and the manner used are largely within the
discretion of the Trial Judge.” United States v. Cranson, 453
F.2d 123, 124 (4th Cir. 1971); see also Charles Wright & Victor
Gold, 28 Federal Practice & Procedure: Evidence § 6184, at 458-
59 (1993). As Agent Mizell did not know if the document at
issue contained the same data he had reviewed, the district
court could easily have determined that he could not have had
his recollection accurately refreshed by reviewing it.
B.
Yu next challenges the district court’s refusal to allow
Tami Loehrs to testify as a lay witness. We review the district
17
court’s choice of Rule 16 sanctions for abuse of discretion.
United States v. Fletcher, 74 F.3d 49, 54 (4th Cir. 1996). Yu
acknowledges that his disclosure of Loehrs’s expert testimony
was untimely and concedes that the district court was within its
discretion to exclude Loehrs as an expert. Appellant’s Br. at
36-37. However, he renews his claim that Loehrs was slated to
testify as a lay witness and asserts that the exclusion of her
lay testimony was an abuse of discretion. Yu’s argument fails.
The Federal Rules of Evidence draw a clear distinction
between “lay” testimony, governed by Rule 701, and “expert”
testimony, governed by Rule 702, to avoid “the risk that the
reliability requirements set forth in Rule 702 will be evaded
through the simple expedient of proffering an expert in lay
witness clothing.” Fed. R. Evid. 701(c), advisory committee’s
note to 2000 Amendments; see also Fed. R. Evid. 702 (describing
expert testimony as that requiring “scientific, technical, or
other specialized knowledge”); Fed. R. Evid. 701(c) (proscribing
lay testimony “based on . . . knowledge within the scope of Rule
702”). Yu’s effort to recast Loehrs as a lay witness suggests
just such an evasion.
Even if defense counsel accurately represented Loehrs’s
testimony as going only to the “chain of custody” of data she
extracted from the seized computers, such testimony would
inevitably have implicated expert knowledge within the scope of
18
Rule 702. Agent Mizell’s testimony about data recovery
illustrates the point. During cross-examination of Agent
Mizell, defense counsel elicited an explanation of the technique
forensic examiners typically use to extract data. Agent Mizell
confirmed that forensic examiners typically use software called
“EnCase” to remove data, after which they translate the raw
information into a viewable format.
As Agent Mizell’s testimony shows, the process of forensic
data extraction requires “some specialized knowledge or skill or
education that is not in possession of the jurors.” United
States v. Johnson, 617 F.3d 286, 293 (4th Cir. 2010) (quoting
Certain Underwriters at Lloyd’s, London v. Sinkovich,
232 F.3d
200, 203 (4th Cir. 2000) (internal quotations omitted)); see
also United States v. Ganier,
468 F.3d 920, 926 (6th Cir. 2006)
(holding that testimony that would “require [the witness] to
apply knowledge and familiarity with computers and the
particular forensic software well beyond that of the average
layperson” fell within the scope of Rule 702). In other words,
even if Loehrs had confined her testimony to her extraction and
translation of the data at issue, she would not have offered lay
opinion. Yu’s assertions to the contrary strain credulity--
particularly in light of the summary of Loehrs’s testimony
contained in Yu’s Rule 16 notice and defense counsel’s explicit
19
reference to Loehrs as “the expert . . . in the courtroom today”
during his cross-examination of Agent Mizell. J.A. 303.
We have explicitly rejected attempts to make an end-run
around the Federal Rules of Evidence by blurring the distinction
between expert and lay testimony. See Johnson, 617 F.3d at 293.
The district court did not abuse its discretion by preventing
such an effort here.
C.
Finally, Yu argues that the district court committed error
with respect to its jury instructions. He urges in particular
that the district court impermissibly broadened the theory on
which he could be convicted of receipt of child pornography when
responding to a question from the jury. Although he concedes
that the deletion of the disputed sentence adequately addressed
the alleged error, he claims that the district court’s failure
to provide the revision orally violated his right under Federal
Rule of Criminal Procedure 43 to be present at “every trial
stage.” Fed. R. Crim. P. 43(a)(2). We review preserved
challenges to jury instructions as well as alleged Rule 43
violations for harmless error. United States v. Jeffers, 570
F.3d 557, 564 n.4 (4th Cir. 2009); United States v. Pratt,
351
F.3d 131, 138 (4th Cir. 2003).
Yu claims that the final sentence in the district court’s
initial response to the jury’s question allowed the jury to
20
convict him for receipt of child pornography on a theory of mere
possession. Even if that were so, any error was harmless. The
jury had the disputed instruction for a brief period before
being dismissed for a long weekend. When court reconvened on
Monday morning, the jury was promptly provided with a revised
instruction the substance of which Yu expressly approved.
Deliberations proceeded for an hour before the jury reached its
verdict. On these facts, we do not see how the challenged
instruction could have affected the outcome.
Any Rule 43 error was similarly harmless. Neither Yu nor
his attorney were excluded from any part of the district court’s
consideration of the jury’s question or the preparation of the
court’s reply. Cf. United States v. Rhodes, 32 F.3d 867, 874
(4th Cir. 1994). To the contrary, both Yu and his counsel were
informed of the jury’s question, provided extensive input into
the district court’s revised response, were aware what
instruction the jury was being given, and explicitly endorsed
the contents of the corrected instruction. 9 Once again, there is
9
At oral argument, Yu noted that the record does not
confirm whether the corrective note was ever received by the
jury. Although it would certainly have been better if the
district court had created a clear record by delivering the
instruction orally, absent any indication that the note was not
properly delivered by the officer of the court to whom it was
entrusted, we assume that it was. See United States v. Pratt,
351 F.3d 131, 138 (4th Cir. 2003).
21
simply “no reasonable possibility that the practice complained
of might have contributed to the conviction.” Pratt, 351 F.3d
at 138 (internal quotations omitted); see also United States v.
Solomon,
565 F.2d 364, 366 (5th Cir. 1978) (finding no prejudice
from submission of supplemental instruction to jury in writing
rather than orally).
III.
For the foregoing reasons we affirm Yu’s conviction.
AFFIRMED
22
