REVISED NOVEMBER 13, 2009
        IN THE UNITED STATES COURT OF APPEALS
                                         United States Court of Appeals
                 FOR THE FIFTH CIRCUIT            Fifth Circuit

                                                                   FILED
                                                                 October 26, 2009

                                  No. 08-50804                Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee
v.

ARKON CHRISTOPHER CALDWELL

                                            Defendant-Appellant



                 Appeal from the United States District Court
                      for the Western District of Texas


Before GARWOOD, OWEN, and SOUTHWICK, Circuit Judges.
GARWOOD, Circuit Judge:
      Defendant-appellant, Arkon Christopher Caldwell, appeals his
convictions of one count of knowing possession, on or about November 7, 2005,
of material transported in interstate commerce involving the sexual
exploitation of minors, in violation of 18 U.S.C. § 2252(a)(4)(B), (b)(2), and of
one count of the knowing receipt, from on or about February 4, 2005, to on or
about November 7, 2005, of materials transported in interstate commerce
involving the sexual exploitation of minors, in violation of 18 U.S.C. §
2252(a)(2), (b)(1). He raises three issues before this court. First, Caldwell
argues that the trial court abused its discretion when it allowed the
prosecution to display to the jury brief excerpts of two videos depicting child
pornography, already admitted into evidence, over the defendant’s Rule 403
objection. Second, he complains that the trial court allowed the prosecution
to display to the jury brief excerpts of two videos depicting adult bestiality,
already admitted into evidence, also over the defendant’s Rule 403 objection.
Third, Caldwell complains the trial court committed plain error in allowing
certain unobjected to testimony of a witness for the United States. He urges
this court to hold this testimony resulted from prosecutorial misconduct. For
the reasons stated below, we affirm Caldwell’s conviction.
                          STANDARD OF REVIEW
      This court reviews a district court’s evidentiary rulings for an abuse of
discretion. United States v. Yanez Sosa, 

, 199 (5th Cir. 2008). A
trial court abuses its discretion when it bases its decision on an erroneous
view of the law or a clearly erroneous assessment of the evidence. 

We review unobjected to opinion testimony and prosecutorial misconduct for
plain error that affects substantial rights. United States v. Hitt, 

, 161 (5th Cir. 2006). The error must seriously affect the fairness,
integrity, or public reputation of judicial proceedings. 

PROCEEDINGS BELOW
      Appellant Caldwell was an Army specialist who served seven months in
Iraq, where he was a military police gunner. After returning from Iraq in
about March or April 2004, he was stationed at Fort Bliss Army Base in El
Paso, Texas. In the period beginning about nine or ten months after his
return from Iraq, the computer in his Fort Bliss home accumulated seventeen
videos depicting child pornography and many more adult pornographic
videos. In July of 2005, federal agents discovered that this computer shared
child pornography using a peer-to-peer file sharing program known as

                                        2
LimeWire. Peer-to-peer programs like LimeWire allow users to share, search,
and copy certain files over the Internet. An investigation of the internet
protocol address revealed that the computer belonged to the defendant. By
using one of these peer-to-peer programs, agents connected to Caldwell’s
computer and searched the files his computer shared on the network. They
discovered over fifty files with titles indicative of child pornography. Agents
downloaded and confirmed that these files depicted child pornography. Based
on this information, the Government executed a search warrant of the
defendant’s home. When agents arrived at the defendant’s home on
November 7, 2005, and provided him with a copy of the search warrant, the
defendant spontaneously stated that he knew he had pornography on his
computer. The agents found no one other than the defendant at home at the
time of the search.
      When they entered the defendant’s living room, the Government agents
found the defendant’s computer turned on with the LimeWire program
downloading a file called, “animal sex Brazilian girl fucking dog.” The
Government found seventeen pornographic videos depicting minors engaging
in sexually explicit conduct. Forensic analysis of the hard drive revealed that
these files were created between September 20, 2005 and November 5, 2005.
Along with child pornography, the agents found multiple videos depicting
adult bestiality on the defendant’s computer. When the defendant testified,
he denied ever looking at child pornography or bestiality videos. He denied
using his computer to download any pornography on the morning of the
search. The jury returned a guilty verdict on both counts.




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                                DISCUSSION
I.    Displaying Child Pornography to the Jury
      During the Government’s case-in-chief, it offered and published to the
jury three short clips taken from over an hour’s worth of child pornography.
It introduced one video of child pornography, which lasted three minutes and
thirty-two seconds. That video was not itself published to the jury. However,
the court allowed the Government to publish to the jury a short excerpt of
that video over the defendant’s objection. Then, the Government introduced
and published to the jury excerpts from two more child pornography videos
found on the defendant’s computer. These excerpts lasted thirty-four (or
twenty-three) seconds and thirty-one seconds, respectively. The
Government’s evidence showed that one of these videos had been opened and
previewed approximately half an hour before the agents arrived on November
7, 2005. All three of these brief video excerpts were entered into evidence and
published to the jury over the defendant’s Rule 403 objection.
      The defense argued that because it had stipulated that the videos
contained child pornography, under Old Chief v. United States, the
Government did not need to publish the videos to the jury. 

(1997). The stipulation (which was read to the jury) states:
      “The government and the defense have stipulated that the 17
      videos listed in Government’s Exhibit 37 were found in the shared
      or incomplete LimeWire folders on the hard drive of the computer
      belonging to Arkon Caldwell and seized by George O’Campo on
      November 7, 2005 from 1910-B Humphrey [Caldwell’s residence],
      which is located on Fort Bliss, Texas, and is also located within
      the Western District of Texas. That these videos were
      transported to that computer in interstate or foreign commerce,
      that is, through the internet via LimeWire.

      It is further stipulated that these 17 videos contain visual


                                       4
      depictions of minors under the age of 18, engaging in sexually
      explicit conduct, and that the parties have no evidence to suggest
      that actual minors were not used in the creation of those videos,
      and that the videos do show the minors engaged in sexually
      explicit conduct.”
      Caldwell contends that the trial court committed reversible error
because it did not conduct a 403 weighing test.
      While all relevant evidence tends to prejudice the party against whom
it is offered, Rule 403 excludes relevant evidence when the probative value of
that evidence substantially outweighs the unfairly prejudicial nature of the
evidence. FED. R. EVID. 403; United States v. Rocha, 

, 239 (5th
Cir. 1990). When one party stipulates to a disputed fact, the stipulation
conclusively proves that fact. Old Chief, 117 S.Ct at 653. Any additional
evidence offered to prove that fact, while still relevant, could potentially
violate Rule 403. 

addresses the admissibility under Rule 403 of additional
relevant evidence in light of a stipulation. In Old Chief, the prosecution
charged Old Chief with violating a law that prohibited possession of a firearm
by anyone who has been convicted of a felony. 

Old Chief had
previously been convicted of the felony offense of assault causing serious
bodily injury. 

Old Chief moved in limine to prevent the
prosecution from discussing the underlying felony and offered a stipulation of
Old Chief’s convicted felon status at the time in question. 

The
Government refused the stipulation. 

the Court begins its
analysis with the general rule: the criminal defendant cannot stipulate his
way out of the full evidentiary force of the Government’s case. 

The Court concludes by reversing the conviction as an exception to the
general rule because the defendant’s legal status (felon) is not part of the

                                        5
Government’s narrative or story. 

A foundation of the Old Chief
decision seems to turn on the contribution of the challenged evidence to the
overall narrative of the Government’s case. 

(“Evidence thus has
force beyond any linear scheme of reasoning, and as its pieces come together a
narrative gains momentum, with power not only to support conclusions but to
sustain the willingness of jurors to draw inferences, whatever they may be,
necessary to reach an honest verdict.”).
      Unlike Old Chief, child pornography is graphic evidence that has force
beyond simple linear schemes of reasoning. It comes together with the
remaining evidence to form a narrative to gain momentum to support jurors’
inferences regarding the defendant’s guilt. It provides the flesh and blood for
the jury to see the exploitation of children. The general, conclusory langauge
of the stipulation that the videos “contain visual depictions of minors under
the age of eighteen, engaging in sexually explicit conduct” does not have the
same evidentiary value as actually seeing the particular explicit conduct of
the specific minors. Jurors have expectations as to the narrative that will
unfold in the courtroom. 

If those expectations are not met, jurors
may very well punish the party who disappoints by drawing a negative
inference. 

jurors expect to see a gun in the case of a person
charged with using a firearm to commit a crime. 

actual
videos exploiting children in a child pornography case form the narrative that
falls within the general rule stated in Old Chief. Moreover, the specific videos
published – one of which the evidence showed was opened and previewed the
morning of the search – reflected how likely it was that the defendant knew
that the video depicted child pornography (which knowledge the stipulation
did not mention). We cannot say the trial court abused its discretion when it
showed the jury three short excerpts from three of the seventeen different

                                       6
videos of child pornography on defendant’s computer.1
II. Displaying Adult Pornography to the Jury
       During the trial, the Government also introduced five adult
pornography videos over the defendant’s Rule 403 objection. The trial court
allowed the Government to show excerpts from two of these videos to the
jury.2 First, the Government showed the jury a 20 second excerpt from the
video that the defendant’s computer was downloading as agents entered his
home. The full length version of this video lasted 14 minutes and 49 seconds,
and involved adult bestiality. At the defendant’s request, the court gave this
limiting instruction:
       “Ladies and gentlemen of the jury, the government wants to show
       a 20-second clip of the film that was being downloaded at the time
       the Department of the Army criminal investigation agent showed
       up at the quarters of Mr. Caldwell. It is being shown for a very
       limited purpose. To summarize, the limited purpose is this: It is
       shown because the government wants to establish that there was
       no mistake or unintentional aspect to the downloading of the
       pornographic films.

       Mr. Caldwell is not being charged with downloading obscene
       adult pornography. So this item of evidence is not being shown to
       you to show that he had done anything illegal by possessing that
       kind of pornography. It is simply being shown for the
       government to establish that he deliberately and intentionally
       downloaded that type. In other words, that he knew how to use
       the LimeWire to do that as shown by the fact that this was

       1
        We further note that the district court carefully and at some length instructed and
queried the jury panel on voir dire not to allow any hostility or aversion they might have to
pornography or child pornography to prejudice their consideration of the evidence or to in
any manner influence or incline them not to in all respects follow the court’s instructions
and, among other things, not to fail to afford the defendant the presumption of innocence
and not to make any finding of guilt except as based solely on in-court evidence establishing
guilt beyond a reasonable doubt.
       2
           Otherwise, none of these adult pornography videos was published to the jury.

                                               7
      happening as the agents came.

      Do you understand that? If any one of you doesn’t understand
      that, please raise your hand, because this limiting . . . instruction
      is important just to – out of an overabundance of caution. Every
      other item of evidence that is admitted into evidence, you can use
      for any purpose. In other words, you can use . . . for what it
      shows and for any reasonable inference you can draw from it, you
      see.

      But this one, I am telling you, specifically, what is the narrow
      purpose that I am allowing the government to show the 20-second
      clip.”
      At this point, the trial court asked both parties if either wanted
additional instructions. Both agreed no additional instructions were
necessary.
      Second, the Government selected a similarly brief excerpt from a
twenty minute video, entitled, “Beastiality-sisters [sic] 300 Farmcum.com
zoophilie horse sex blowjob cumshotdog.mpg” The lower court gave the jury
the following limiting instruction before playing the excerpt to the jury:
      “Ladies and gentlemen, the same issue with respect to the
      viewing of this film. This is an adult pornography obscene
      material. Mr. Caldwell is not being charged with anything
      having to do with that. However, it is being shown to you for the
      purposes of establishing lack of intent or mistake at the time that
      that was being – that that was downloaded.

      You may recall that I showed you – I allowed the showing of the
      first one because that was the one that – was one of the films that
      he had downloaded or was in the process of downloading at the
      time that the search warrant was executed. This is a similar film
      but downloaded using the same software, LimeWire, at a
      different point in time.”
      The record reflects that this particular adult pornography video first
came onto Caldwell’s computer on September 20, 2005, and was most recently

                                        8
accessed on November 4, 2005. Further, the child pornography video which
was accessed on November 7, 2005, before the agents arrived, first came onto
Caldwell’s computer on September 21, 2005.
      The defendant complains on appeal that the trial court allowed the
Government to publish the excerpts of the already admitted videos to the
jury; he does not complain of their admission into evidence itself. Caldwell
relies on two cases and contends the trial court abused its discretion under
Rule 404(b) when it admitted and displayed the adult pornography. See
United States v. Grimes, 

, 385 (5th Cir. 2001); United States v.
LaChappelle, 

, 638 (8th Cir. 1992). As noted in Grimes, the
Fifth Circuit uses a two prong test to assess admissibility. 

(citing United States v. Beechum, 

(5th Cir. 1978)). First,
we determine whether extrinsic offense evidence is relevant for non-general
propensity purposes. 

relevant, we conduct a balancing test
under Rule 403 to ensure the unfairly prejudicial effect of the evidence does
not substantially outweigh its probative value. 

the court found sexually explicit narratives downloaded a
year prior to the offense were still relevant. 

& n.18 (narratives
involved sexual conduct between adults and minors). Here, both of the videos
in question satisfy the first prong of this test. At the trial court, the defense
theory, argued in defense counsel’s opening statement, was that Caldwell
lacked knowledge of the child pornography. In direct examination, Caldwell
denied ever downloading or having any knowledge of any of the child
pornography or bestiality videos. Yet, the adult bestiality video, the excerpt
of which was published to the jury, had just completed downloading from
LimeWire onto Caldwell’s computer when the federal agents entered the
defendant’s home. In fact, testimony revealed the monitor of Caldwell’s

                                        9
computer was turned on, and this particular file downloaded on the monitor.
Since no one other than the defendant was home at the time, the government
could use this to show the defendant’s knowledge under Rule 404(b). FED. R.
EVID. 404(b).
       The trial court appropriately conducted the Rule 403 weighing test.
While the court in Grimes found the extrinsic offense evidence failed the
second prong, Grimes is the exception, not the rule. 

.
The extrinsic offense evidence in Grimes involved gruesome violence,
including young girls in chains, handcuffs, and other references to blood.3 In
the second case the defendant cites, LaChapelle, the court finds the extrinsic
offense evidence prejudicial because the offense was committed when it was
lawful to commit such acts. 

. The Eight Circuit
nevertheless found admission of the evidence harmless error. 

States v. Layne, this court upheld the admission of other child pornography
not charged in the indictment as relevant on the issue of the defendant’s
knowledge. 

, 133–34 (upholding the trial court’s decision to admit
other child pornography, while excluding other adult pornography). The
Layne decision turned on the need for the evidence to prove knowledge and
the fact that the trial court scrutinized the evidence carefully, refused to
admit all of the evidence that was offered, and gave an appropriate limiting
instruction. 

       Here, the record contains a fourteen page discussion between the court
and the parties about the nature of the evidence, the purposes it was offered


       3
         “The narratives . . . depict violent rapes and moderate torture . . . The narratives
are vile in their graphic and violent nature: young girls in chains, a young girl in handcuffs,
and references to blood, for example. Perhaps on retrial the government can redact a
different portion of the narratives and attempt to reintroduce them . . . .” 

and the potential prejudicial effect. Before allowing the jury to see the
very brief portions of two of the many admitted adult pornography videos, the
trial court gave the jury two limiting instructions. Beyond its probative value
for knowledge, the video that downloaded as federal agents searched the
defendant’s home has additional probative value as an integral part of the
charged offense. See United States v. Coleman, 

, 156 (5th Cir.
1996); United States v. Wilson, 

, 72 (5th Cir. 1978) (often called res
gestae). The story of the raid and search of the defendant’s home would
remain incomplete without telling the jury the evidence the agents found
downloading on the same program that was used to download child
pornography. Further, the trial court carefully considered the evidence, and
allowed the jury to see only a short portion of much longer videos. Up to that
point in the trial, the agents had testified as to the content of all of the
bestiality videos without objection. This court finds no error in showing the
jury the brief excerpt of the video found downloading as the search occurred.
      We find, however, the brief portion of the adult video downloaded on
September 27, 2005, weeks prior to the arrest, more troubling. While the
prejudicial nature of the video excerpt is clear, we have difficulty in finding
much significant probative value in publishing this brief excerpt to the jury.
However, the video was downloaded to Caldwell’s computer well within the
period alleged in the receipt count on the same program as that from which
the child pornography was downloaded on September 21, 2005, and it was
last accessed on November 4, 2005. The video was relevant to show a lack of
accident or mistake in reference to both the adult and the child pornography
videos viewed November 7. Significantly, the record does reveal
overwhelming evidence against the defendant. For example, he argues that a
trojan virus downloaded the child pornography without his knowledge or

                                        11
consent. Yet, even though the defendant left his computer on with LimeWire
running and connected to the internet, when he went on a week’s out of state
vacation, no child pornography was downloaded, but pornography
downloading resumed the day he returned. Moreover, as noted, the agents
had already testified as to the content of these videos without objection.
Given the evidence, the abuse of discretion standard, and the limiting
instruction, this court finds that any error in this respect was harmless. Cf.

(even where there is an abuse of discretion under
403(b) the error is not reversible if harmless).
III. Alleged Expert Testimony
      Because of the complexity of the technology, the Government called
Felix Berger, an employee of LimeWire, LLC, to explain how the program
works and how an individual would use the program. Caldwell moved in
limine to suppress any expert testimony that Mr. Berger might give because
he has not been designated as an expert as required by FED. R. CRIM. P.
16(a)(1)(G). The United States explained that he would only give factual
testimony: how LimeWire works and what a person would see when they turn
on and use the program. The defense agreed that this type of testimony
would be factual, which rendered the motion moot. At trial, the Government
called Berger to the stand. He explained how an individual downloads and
installs the LimeWire program. He also described how users go about finding
files on the LimeWire program. Mr. Berger defined certain terms and how
certain buttons on the program functioned. He showed the jury how a user
uploads and downloads files to and from other LimeWire users. Near the end
of his direct examination, Mr. Berger answered two questions that the
defense now characterizes as expert testimony:
      Q. Is it possible for somebody else with LimeWire to send you a

                                        12
      video file that you haven’t searched for?

      A. No, it can’t.
      Q. Is it possible for another computer user on the internet to
      send you and download into your shared folder a file you haven’t
      searched for?

      A. No, they cannot.
      The defense made no objection to this testimony at trial. On cross-
examination, the defense questioned him further about this subject. They
asked Mr. Berger whether a trojan could overtake the LimeWire program. In
cross, the following dialogue occurred:
      Q. . . . [Is there] a warning system to tell the user that LimeWire
      was being overtaken by a trojan?

      A. I could only speculate what that feature actually is and what
      it actually means, because those terms are very – I don’t really
      know what that feature is, but it could be.
      ....
      Q. Would it be fair to say that there’s other people at LimeWire
      that would know about this particular feature, correct?

      A. Exactly. If I can explain, there is a huge code base, several
      hundred thousand lines of code, so I would have to always make
      myself familiar with the certain area, which I could do.
      The prosecutors’ representation that Berger would be a lay witness does
not rise to the level of plain error required for reversal. Berger’s testimony
did not clearly or obviously go beyond explaining how LimeWire works, which
is what the Government had said he would testify to. Here, nothing about
the prosecutors statements in the motion in limine mislead the defense into
withholding objection once the assertedly objectionable testimony was put
before the jury. The prosecutor stated Berger would testify as a lay witness.


                                          13
When Berger’s testimony made the defense aware of a possible objection, the
defense decided not to timely object. Further, the objection on appeal is to
only two, isolated questions and answers elicited by the Government. The
defense delved into similar, but defense favorable testimony, on cross
examination. Finally, the defense called its own expert to throughly discuss
this testimony.4 Thus, any misrepresentation by the Government cannot
have affected the defendant’s substantial rights nor seriously affect the
fairness, integrity, or public reputation of judicial proceedings. See United
States v. Hitt, 

, 161 (5th Cir. 2006).
       The defense also argues that this court should find plain error in the
trial court’s admission of Berger’s testimony. The Supreme Court defines
plain error synonymously with clear or obvious error. United States v. Olano,

, 734 (1993). Rule 701 allows lay opinions by witnesses so long
as the witness does not base his or her opinion on scientific, technical or other
specialized knowledge within the scope of Rule 702. FED. R. EVID. 701. The
Advisory Committee Notes to the 2000 Amendment of Rule 701 explain that
lay testimony results from a process of reasoning familiar in every day life,
whereas expert testimony results from a process of reasoning which can only
be mastered by experts in the field. FED. R. EVID. 701 advisory committee’s


       4
        We also note that the Government’s computer expert, Agent Kunze, who examined
Caldwell’s computer, testified that there was no trojan that was responsible for any of the
child pornography found on the defendant’s computer. Kunze also testified that
examination of the defendant’s computer revealed three LimeWire requests to other
LimeWire users requesting the particular child pornographic videos which were found on
the defendant’s computer. The defense expert, Young, testified that a trojan of some kind
could “take over” the LimeWire program so as to cause a computer to receive LimeWire
videos it had not requested. Young also stated that a trojan was found on defendant’s
computer, that an anti-virus program on the computer had located the trojan at 2:00 a.m.
September 7, 2005, and that program may or may not have then rendered the trojan
thereafter inoperable. Young could not say whether or not a trojan had anything to do with
the child pornography videos which were found on defendant’s computer being there.

                                            14
note; Yanez 

(adopting the reasoning in the Committee
notes).
      The case law is not completely clear on where to draw the line between
expert and lay testimony. For example, in United States v. Soto-Beniquez, the
First Circuit upheld a lower court decision to allow the testimony of two
pathologists, despite the Government’s failure to designate them as experts,
when the Government informed the defense before trial that both would
testify to several autopsies and provided defendants with copies of the
autopsy reports. 

, 37–38 (1st Cir. 2004); see also Bryant v. Farmers
Ins. Exch., 

, 1124 (10th Cir. 2005) (“A mathematical calculation
well within the ability of anyone with a grade-school education is . . . more
aptly characterized as a lay opinion”).
      In contrast, this court in Doddy v. Oxy USA, Inc., held testimony about
the toxicity of chemicals was not lay opinion because it required specialized
training and experience. 

, 460–61 (5th Cir. 1996). The trend in
the circuits seems to turn on whether the testimony falls within the realm of
knowledge of the average lay person. E.g., United States v. White, 

, 403–04 (6th Cir. 2007); United States v. Garcia, 

, 215–16 (2d
Cir. 2005) (DEA agent’s testimony was not opinion informed by the reasoning
processes familiar to the average person). In United States v. White, the
Government put on the testimony of several Medicare auditors in a Medicare
fraud case. 

at 399. The Sixth Circuit explains that the
distinction between lay and expert witness testimony is far from clear,
especially in cases where a witness with specialized knowledge also has
personal knowledge of the factual underpinnings of the case. 

The
court concludes that the Government should have qualified the witnesses as
experts because their knowledge of the Medicare system far exceeded the

                                          15
average lay person. 

The court found the error harmless partially
because the bulk of the witnesses’ testimony was factual. 

      Like White, it’s difficult to say that Berger’s testimony was clearly
expert testimony. With the prevalence of computer technology, it is not
unreasonable to argue this type of information would fall within knowledge of
the average lay person. The defendant himself testified to the same type of
information. Furthermore, whether LimeWire allows the user to download
files not specifically requested concerns how the program works. In contrast,
the questions the defense asked, such as how a trojan may interact with
LimeWire, go beyond that. The testimony elicited by the defense is closer to
expert testimony than is the testimony of which it complains.
      We hold that the trial court did not commit plain error in admitting the
testimony of Felix Berger, and that error, if any, in this respect did not
seriously affect the fairness, integrity or public reputation of judicial
proceedings.
                                 CONCLUSION
      The trial court did not abuse its discretion when it allowed the jury to
see small segments of child pornography found on the defendant’s computer.
While the adult pornography is a closer call, given the abuse of discretion
standard, we afford the lower court some discretion in it’s evidentiary ruling
and find any error was harmless. Finally, the admission of Felix Berger’s
testimony was not plain error.
                                   AFFIRMED




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