[DO NOT PUBLISH]




              IN THE UNITED STATES COURT OF APPEALS
                                                            FILED
                        FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                          ________________________   ELEVENTH CIRCUIT
                                                         APRIL 9, 2008
                                                      THOMAS K. KAHN
                                No. 07-13472
                                                           CLERK
                           Non-Argument Calendar
                         ________________________

                   D. C. Docket No. 06-00179-CR-ODE-1-1

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellant,

                                    versus

TIMOTHY PRUNICK,
a.k.a. makene1squirt,

                                                  Defendant-Appellee.

                         ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                      _________________________

                                (April 9, 2008)

Before ANDERSON, HULL and WILSON, Circuit Judges.

PER CURIAM:

     The government appeals the district court’s order granting Timothy
Prunick’s motion for a new trial. Prunick was indicted for: (1) attempted use of a

computer to entice a minor to engage in sexual activity, 18 U.S.C. § 2422(b),

(Count One); (2) traveling interstate with the intent to engage in sexual activity

with a child under the age of 12, 18 U.S.C. § 2241(c), (Count Two);

(3) transporting child pornography, 18 U.S.C. § 2252A(a)(1), (Count Three); and

(4) possession of child pornography, 18 U.S.C. § 2252A(a)(5)(B), (Count Four).

The court denied Prunick’s pretrial motion to sever Counts One and Two and try

them separately from Counts Three and Four, the pornography charges.

      The jury ultimately found Prunick guilty on Counts One and Two and not

guilty on Counts Three and Four. The court then granted Prunick’s motion for a

new trial, based on the finding that he suffered compelling prejudice in trying the

pornography charges with the enticing and traveling charges, and that the

pornographic images would not be admissible in a separate trial on Counts One

and Two.

      Pursuant to Federal Rule of Criminal Procedure 33, “[u]pon the defendant’s

motion, the court may vacate any judgment and grant a new trial if the interest of

justice so requires.” Fed. R. Crim. P. 33(a). A district court’s decision to grant a

new trial is within the “sound discretion of the . . . court and will not be overturned

on appeal unless the ruling is so clearly erroneous as to constitute an abuse of



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discretion.” United States v. Vicaria, 

, 198 (11th Cir. 1994) (internal

quotation marks omitted). This standard is “broad” and “is not limited to cases

where the district court concludes that its prior ruling, upon which it bases the new

trial, was legally erroneous.” 

court may grant a new trial when a

defendant was “unable to receive a fair trial and suffered actual, compelling

prejudice . . . .” United States v. Pedrick, 

, 1267 (11th Cir. 1999).

        The issue before us is whether the district court abused its discretion in

finding compelling prejudice sufficient to warrant a new trial on Counts One and

Two. The following facts support the district court’s finding: (1) the illicit

pornographic images were quite graphic and disturbing, highly inflammatory in

nature, and displayed on a large screen at trial; (2) the government repeatedly

linked the presence of the images on Prunick’s computer to his intent in traveling

to Atlanta; and (3) the images were almost two years old; they had automatically

been saved onto Prunick’s computer; and Prunick was likely unaware of and

unable to access them. The record thus supports the finding of the court, which

“saw the witnesses, heard all of the evidence, and is in the best position to evaluate

whether [Prunick] suffered compelling prejudice warranting a new trial.” 

        Accordingly, the district court did not abuse its discretion, and we affirm the



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grant of a new trial as to Counts One and Two of the indictment.

      AFFIRMED.




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