“Rule 404(b) . . . only applies to extrinsic evidence and does not prohibit intrinsic evidence.”
How later courts described this case
- “Rule 404(b) . . . only applies to extrinsic evidence and does not prohibit intrinsic evidence.”
- holding that a jury could reasonably find that $150,000 recovered during the traffic stop constituted proceeds of the drug conspiracy and was therefore intrinsic to the charged offense
- “Credibility determinations in sentencing hearings are peculiarly within the province of the trier of fact.”
- finding no clear error in applying the enhancement where the court credited federal agent’s testimony that he reviewed roughly 6,000 images and that most depicted child pornography despite occasional imprecision
Written by the judges who cited it.
The opinion
Case: 24-10126 Document: 84-1 Page: 1 Date Filed: 10/02/2025
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
FILED
No. 24-10126 October 2, 2025
____________
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Sean Shaughnessy,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:19-CR-189-1
______________________________
Before Stewart, Dennis, and Haynes, Circuit Judges.
Per Curiam:
Sean Shaughnessy appeals his conviction and sentence following a
jury’s verdict finding him guilty of two drug-conspiracy counts, one
distribution count, and one possession of child pornography count, all arising
from his use of online dark web marketplaces to traffic narcotics. He
challenges the sufficiency of the evidence supporting his conspiracy
convictions, the admission of certain trial evidence, and the application of a
sentencing enhancement. For the reasons that follow, we AFFIRM.
Case: 24-10126 Document: 84-1 Page: 2 Date Filed: 10/02/2025
No. 24-10126
I
Shaughnessy’s convictions stem from a multi-year federal
investigation into a digital drug-trafficking enterprise he ran on the “dark
web.” The dark web is a concealed segment of the internet that requires
special software to access and masks users’ identities and locations through
layers of encryption. Within that hidden network, Shaughnessy maintained
pseudonymous vendor accounts on multiple “dark web marketplaces”
(DWMs). There, he advertised, sold, and shipped controlled substances and
analogues to buyers nationwide and accepted payment in the cryptocurrency
Bitcoin 1 to preserve anonymity, which he converted to cash through
unregulated avenues that avoided identity verification.
Between 2016 and 2019, federal and state investigators conducted
searches of Shaughnessy’s residences and related surveillance that yielded a
cohesive body of evidence tying him to this scheme, including: seizures of
narcotics and shipping supplies; handwritten and digital ledgers detailing
orders, pseudonyms, addresses, and payments; intercepted international
parcels to his post office box; undercover Bitcoin-to-cash exchanges; and
forensic examinations of his computers linking the conduct to his accounts
and revealing an encrypted folder containing child pornography.
A
Shaughnessy’s involvement with the dark web drew law-enforcement
attention in July 2016, when Irving, Texas police officers arrested him at a
Motel 6 on an unrelated warrant. During the arrest, officers observed white
powder beneath Shaughnessy’s nostrils and saw him drop a bag of white
powder. A field test presumptively indicated the bag contained
_____________________
1
We have previously detailed the function and use of the cryptocurrency Bitcoin.
See United States v. Gratkowski, 964 F.3d 307, 309 (5th Cir. 2020).
2
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No. 24-10126
approximately 15.1 grams of cocaine. Officers then obtained a warrant to
search the room and Shaughnessy’s vehicle. The search uncovered 462
additional grams of suspected cocaine, digital scales, unused plastic baggies,
numerous postal shipping labels, tracking slips, and mailing envelopes
addressed to various recipients. Officers also recovered handwritten ledgers
that investigators would later determine detailed Shaughnessy’s use of
multiple DWMs to distribute narcotics, listing usernames, customer
addresses, quantities sold, payment records, and shopping lists for drugs
including fentanyl and pentedrone.
A Texas grand jury indicted Shaughnessy on one court of possession
with intent to distribute cocaine. 2 However, laboratory analysis by the
Southwestern Institute of Forensic Sciences (SWIFS) failed to identify most
of the seized powders, save for 2.8 grams of a mixture it determined
contained cocaine, pentedrone, and other substances. Shaughnessy pleaded
guilty to attempted possession of a cocaine and, on August 11, 2017, the state
court sentenced him to 90-days’ imprisonment, but he was released the same
day after crediting time served.
That same month, undercover federal agents encountered
Shaughnessy when he sought to liquidate Bitcoin later traced to his narcotics
sales. After failing to cash out his Bitcoin through a regulated cryptocurrency
exchange that required documentation he could not provide, Shaughnessy
turned to “Gold,” another dark web vendor who anonymously mailed U.S.
currency in exchange for Bitcoin and charged substantially higher fees than
traditional exchanges. Unbeknownst to Shaughnessy, Gold was cooperating
with federal authorities, and Homeland Security Investigations Special Agent
Jason Samuels had assumed control of the account. Between August and
_____________________
2
See Texas v. Shaughnessy, No. F-16-34034 (Tex. Dist. Ct. Aug. 30, 2016).
3
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No. 24-10126
October 2017, Agent Samuels recorded roughly $150,000 in Bitcoin-to-cash
transactions with Shaughnessy. Agents also intercepted one package and met
Shaughnessy in person, at which point he declined to explain the source of
the funds or identify his occupation.
The investigation continued over the following months. In November
2017, SWIFS reexamined the substances seized during the July 2016 search
of Shaughnessy’s motel room. Their analysis concluded that the 15.1 and 462
grams of suspected cocaine were the controlled substance analogue N-
ethylhexedrone. 3 In March and April 2018, U.S. Customs and Border
Protection intercepted two international packages addressed to a post office
box in Addison, Texas belonging to Shaughnessy. Each package originated in
China and contained large quantities of N-ethylhexedrone—941 grams in one
and 49 grams in the other. Postal records showed that the same box had
received at least eleven international shipments from China and Hong Kong.
A month later, in May 2018, federal agents and local officers executed
a search warrant at Shaughnessy’s residence in Irving, Texas. Inside a
bedroom safe, they found 246.8 grams of N-ethylhexedrone and 84.7 grams
of FUB-144, another controlled substance analogue. 4 Agents also recovered
additional drug paraphernalia and a laptop. A forensic review of the laptop
uncovered a text file containing another detailed ledger of narcotics
transactions, including product names, dates, quantities, shipping addresses,
and references to DWM platforms. The same review linked Shaughnessy to
_____________________
3
N-ethylhexedrone is an analogue of the controlled substance pentedrone, both
synthetic cathinones. Synthetic cathinones are a class of stimulants commonly marketed as
“bath salts.”
4
FUB-144 is a synthetic cannabinoid and classified as a Schedule I controlled
substance analogue. See Temporary Placement of FUB-144 into Schedule I, 84 C.F.R.
§ 15505 (2019); Placement of FUB-144 into Schedule I, 87 C.F.R. § 20318 (2022).
4
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No. 24-10126
the email address “Fent4U@safemail.net,” a moniker also found in DWM
user profiles. Agents arrested Shaughnessy based on an outstanding warrant
in Texas, but he was released on bond.
Agents traced several shipments listed in Shaughnessy’s ledgers to his
customers in Texas. Two individuals—Jennifer Greer and Britt Osbourn—
later testified that they had purchased fentanyl and fentanyl analogues from
Shaughnessy through the DWMs “Dream” and “Trade Route.” A third
recipient, Darrell Hawk, died in November 2017 from an overdose involving
methoxyacetyl fentanyl (MAF) 5 shortly after receiving a package mailed by
Shaughnessy. In each case, the transaction details were corroborated by
entries in Shaughnessy’s ledgers.
Finally, in May 2019, federal agents executed a second search warrant
at a Keller, Texas residence where Shaughnessy had been staying while on
bond for his pending state offense. They recovered another laptop containing
a similarly structured ledger of narcotics transactions and continued access
to the “Fent4U” email account. During the forensic review of that device,
agents also discovered an encrypted folder titled “2018 Amateur Teens Part
1.” Agents decrypted the folder using a password listed just above saved links
to DWM platforms found in a nearby text file. Among the folder’s contents
were fourteen still images and eight videos depicting minors engaged in
sexually explicit conduct.
B
One month before agents executed the May 2019 search in Keller,
Texas, a grand jury returned an eleven-count indictment charging
_____________________
5
MAF is a synthetic opioid and classified as a Schedule I controlled substance. See
Temporary Placement of Methoxyacetyl Fentanyl Into Schedule I, 21 C.F.R. § 42754
(2017); Placement of Methoxyacetyl Fentanyl in Schedule I, 84 C.F.R. § 57323 (2019).
5
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No. 24-10126
Shaughnessy with two drug-trafficking conspiracies, a distribution count, and
money laundering. Three superseding indictments followed. The third, in
April 2023, reorganized the charges into two conspiracies—one involving the
controlled substances fentanyl, carfentanil, pentedrone, and MAF after
scheduling (Count One), and the other involving the controlled substance
analogues FUB-144, N-ethylhexedrone, and MAF before scheduling
(Count Two)—along with two distribution counts involving fentanyl and
MAF (Counts Three and Four, respectively), eight money-laundering
counts (Counts Five through Twelve), and one count of possession of three
images of child pornography (Count Thirteen). The district court dismissed
the money-laundering counts on the Government’s motion.
At trial, the Government presented to the jury the physical, digital,
and witness evidence underlying the charges including ledgers, seized
narcotics, mailing materials, intercepted parcels, forensic laptop extractions,
and customer testimony. The Government also elicited, without objection,
testimony from Agent Samuels about Shaughnessy’s use of the dark web
vendor Gold to convert Bitcoin to cash. Finally, the district court permitted
the Government, over Shaughnessy’s objection, to admit and publish to the
jury two uncharged videos depicting child pornography recovered from
Shaughnessy’s laptop under Federal Rule of Evidence 404(b).
At the close of the Government’s case, Shaughnessy moved for a
judgment of acquittal under Federal Rule of Criminal Procedure 29, which
the district court denied. Shaughnessy then rested without introducing any
evidence in his defense. The jury found him guilty on Counts One, Two,
Four, and Thirteen, acquitted him on Count Three, and specifically found
that he conspired to possess with intent to distribute each controlled
substance and analogue listed in the indictment.
6
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No. 24-10126
A presentence investigation report calculated an advisory
imprisonment range of 235 to 293 months. Relevant here, the Guidelines
calculation included a five-level enhancement under U.S.S.G.
§ 2G2.2(b)(7)(D), which applies when an offense involves 600 or more
images of child pornography. The enhancement was derived from the
fourteen still images and eight videos recovered from Shaughnessy’s laptop,
with each video qualifying as seventy-five images under the Guidelines,
totaling 614 images of child pornography. § 2G2.2 cmt. n.6(B)(ii).
Shaughnessy objected to the enhancement, relying on two emails
between the Government and the National Center for Missing and Exploited
Children (NCMEC) identifying only five images in Shaughnessy’s
possession as a “known series” of child pornography. At Shaughnessy’s
sentencing hearing, the Government presented testimony from the forensic
analyst who had reviewed the files, Robert Pircher, to support applying the
enhancement. The court examined Mr. Pircher’s methodology in detail and
ultimately credited his testimony. The district court overruled the objection,
applied the enhancement, and adopted the PSR’s guideline calculation in
full. The court sentenced Shaughnessy to 240 months on Counts One, Two,
and Four, to run concurrently, and 120 months on Count Thirteen, with 67
months to run concurrently and 53 months consecutively. The resulting
aggregate term was 293 months’ imprisonment, the top of the applicable
guidelines range. This appeal followed.
II
Shaughnessy presses four challenges: (A) the Government’s evidence
was insufficient to support his conspiracy convictions; (B) testimony and
records of his Bitcoin-to-cash transactions with Gold were wrongly admitted
as extrinsic evidence of uncharged money laundering conduct; (C) the
district court abused its discretion by admitting two uncharged videos of child
7
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No. 24-10126
pornography under Rule 404(b); and (D) the evidence did not support the
application of the five-level sentencing enhancement under U.S.S.G.
§ 2G2.2(b)(7)(D). We address and reject each of the issues appealed.
A
We begin with Shaughnessy’s challenge to the sufficiency of the
evidence supporting his convictions for conspiracy to possess with intent to
distribute controlled substances (Count One) and controlled substance
analogues (Count Two). Because Shaughnessy moved for a judgment of
acquittal at the close of the Government’s case and “rest[ed] without
introducing any evidence,” our review is de novo. United States v. Resio-
Trejo, 45 F.3d 907, 910 n.6 (5th Cir. 1995) (citing Clark v. United States, 293
F.2d 445, 448 (5th Cir. 1961)). We ask “whether a reasonable jury could have
properly concluded, weighing the evidence in a light most deferential to the
verdict rendered by the jury, that all of the elements of the crime charged had
been proven beyond a reasonable doubt.” United States v. Hope, 487 F.3d
224, 227 (5th Cir. 2007).
To sustain a conviction for conspiracy to distribute controlled
substances or controlled substance analogues, the Government must prove
three elements beyond a reasonable doubt, but Shaughnessy challenges only
the sufficiency of the evidence supporting the first: “the existence of an
agreement between two or more persons to violate narcotics laws[.]” 6 United
States v. Chapman, 851 F.3d 363, 376 (5th Cir. 2017) (quoting United States v.
_____________________
6
The remaining elements are “knowledge of the conspiracy and intent to join it”
and “voluntary participation in the conspiracy.” Chapman, 851 F.3d at 376 (citation
omitted). Shaughnessy does not dispute, for purposes of this appeal, the identity of the
charged substances in Counts One and Two or that the record would permit a finding that
he possessed them with intent to distribute; his argument is limited to the absence of
evidence supporting any conspiratorial agreement.
8
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No. 24-10126
White, 219 F.3d 442, 445 (5th Cir. 2000)). A conspiratorial agreement “need
not be express or explicit; tacit agreement is sufficient.” Id. (citing United
States v. Shoemaker, 746 F.3d 614, 623 (5th Cir. 2014)). It may be established
“with only circumstantial evidence” demonstrating a “tacit, mutual
agreement with common purpose, design, and understanding” or “inferred
from concert of action.” Id. (quoting Shoemaker, 746 F.3d at 623); United
States v. Farias, 469 F.3d 393, 398 (5th Cir. 2006). And a conspiracy may rest
on “unknown” coconspirators provided the evidence proves both their
existence and their complicity. United States v. Price, 869 F.2d 801, 804 (5th
Cir. 1989).
Viewing the evidence in the light most deferential to the verdict, a
reasonable jury could have concluded that Shaughnessy conspired to possess
with intent to distribute controlled substances and controlled-substance
analogues with two sets of actors: (1) the DWM administrators and
moderators who facilitated his ongoing drug sales by providing essential
infrastructure and support; and (2) the upstream suppliers who repeatedly
furnished him with bulk quantities of controlled substances and analogues for
redistribution.
First, the Government presented extensive evidence detailing how
DWMs are established and designed to facilitate the sale of illicit drugs and
other contraband. These platforms are accessible only through specialized,
anonymizing software, and “95 percent to 99 percent” of the items listed for
sale are illegal. DWMs are created and maintained by individual
administrators who employ moderators to provide essential support. These
administrators and moderators set and enforce vendor policies and provide
tools tailored for high-volume, anonymous drug transactions, including
escrow accounts, dispute-resolution mechanisms, vendor-rating systems,
and encrypted buyer-seller messaging.
9
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No. 24-10126
Shaughnessy relied on these platforms and tools to accomplish his
drug-trafficking enterprise. He registered vendor accounts on at least sixteen
DWMs where he, under various pseudonyms, marketed and sold a rotating
inventory of controlled substances and analogues. On the DWM “Dream
Market,” for example, Shaughnessy operated under the alias “Fent4U” and
promoted himself as a high-volume, reliable seller of narcotics. His vendor
profile listed Dream Market’s endorsement of him as a “best choice” for
quality and price, and chronicled multiple exchanges with site support. He
reported account problems, noting he had “emailed them many times with
no luck.” He recounted a similar issue with his vendor profile on a different
DWM, “Trade Route,” where he had been locked out of his account with
“over 20k in escrow.” Shaughnessy speculated that Dream Market had
closed his storefront because he had “not sent any product” but “hop[ed]
support opens [his] store back up.” He later announced he was “back up and
running” and that his “bags are heavy.” Finally, Shaughnessy’s drug
ledgers, along with trial testimony from his customers, confirmed that he sold
the controlled substances and analogues listed in his indictment through
these DWMs.
From this evidence, a reasonable jury could infer a coordinated,
reciprocal relationship between Shaughnessy and DWM administrators and
moderators sufficient to support his conspiracy convictions. The platform
administrators and moderators created and maintained a system explicitly
tailored to anonymous drug distribution and Shaughnessy repeatedly used
and appealed to that system to facilitate hundreds of illegal transactions. And
where a service provider knowingly furnishes—and the defendant relies
upon—the tools, protections, and coordinated assistance necessary to
sustain a distribution venture, a jury may infer a conspiratorial meeting of the
minds. Cf. United States v. Hinojosa, No. 22-10584, 2024 WL 841088, at *9
(5th Cir. Feb. 28, 2024) (finding sufficient evidence of narcotics conspiracy
10
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No. 24-10126
where club owners “actively facilitated the sales” of narcotics with drug
dealers who boosted club attendance and revenue).
Our conclusion is consistent with similar decisions of our sister
circuits. For example, the Eleventh Circuit, on a plea record, held it was not
plain error to find a vendor conspired “with unknown dark web marketplace
administrators to illegally distribute controlled substances” where the
platforms were “deliberately established by unknown administrators to
promote and assist his illegal narcotics sales, protect his identity, and conceal
the source of the payments he received.” United States v. Decker, 832 F.
App’x 639, 647–48 (11th Cir. 2020). And the Fourth Circuit upheld a wire-
fraud conspiracy conviction based partly on the relationship between a dark
web administrator and his users, emphasizing that the administrator
knowingly built and promoted a platform designed to facilitate illegal activity
and maintained an indirect but coordinated relationship with its users to
advance their criminal schemes. United States v. Bondars, 801 F. App’x 872,
882 (4th Cir. 2020). Both decisions emphasize near-identical evidence to that
presented by the Government at trial in support of Shaughnessy’s
conspiracy: the mutual interests, the sophistication of the platform, the
anonymity required, and the services offered to vendors and other users.
This also distinguishes Shaughnessy’s conspiracy from those relying
on a mere “buyer-seller” relationship. A conspiracy charge cannot be
sustained on evidence of a one-off transaction between a supplier and an
acquirer. See United States v. Delgado, 672 F.3d 320, 333 (5th Cir. 2012) (en
banc). But that precept does not shield repeat collaborators who knowingly
advance a shared distribution objective. Id. Here, the evidence showed not
isolated or incidental contact, but years-long integration into a system of dark
web markets whose operators actively enabled Shaughnessy’s trafficking.
That permitted the jury to infer a tacit agreement. See Chapman, 851 F.3d at
376; Delgado, 672 F.3d at 333.
11
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No. 24-10126
Second, the jury also heard ample evidence from which it could
conclude that Shaughnessy conspired with upstream suppliers who furnished
him with bulk quantities of controlled substance analogues for redistribution.
Investigators intercepted two parcels addressed to Shaughnessy’s post office
box originating from China containing large quantities of N-ethylhexedrone.
And postal records showed that the same post office box had received at least
eleven other packages from China and Hong Kong in a four-month period.
Searches of his residences consistently yielded bulk inventories of N-
ethylhexedrone and other controlled substance analogues together with
shipping labels, packaging materials, scales, and other distribution
paraphernalia. Finally, his ledgers reflected numerous transactions involving
these substances. The pattern of repeated bulk procurement coordinated
with downstream sales permits an inference of a mutual plan with upstream
sources to import and redistribute contraband, not mere isolated buy-sell
dealings. See United States v. Dukes, 139 F.3d 469, 475 (5th Cir. 1998).
At bottom, the Government was not required to produce an express
agreement or identify the precise names of Shaughnessy’s confederates. It
was required to show that he knowingly furthered a shared plan to distribute
controlled substances and their analogues—whether with anonymous
platform operators or foreign suppliers. “[W]eighing the evidence in a light
most deferential to the verdict rendered by the jury,” the evidence permitted
“a reasonable jury” to reach that conclusion beyond a reasonable doubt.
Hope, 487 F.3d at 227.
B
We next address whether the district court erred by permitting
testimony concerning Shaughnessy’s dealings with the dark web vendor
Gold to convert Bitcoin into United States currency. Shaughnessy concedes
that our review is limited to plain error because his challenge is raised for the
12
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No. 24-10126
first time on appeal. United States v. Cervantes, 706 F.3d 603, 616 (5th Cir.
2013).
Shaughnessy highlights a brief portion of Agent Samuels’s direct
examination describing Shaughnessy’s difficulty liquidating his Bitcoin
through traditional cryptocurrency exchanges and his subsequent dealings
with Gold. During that exchange, the Government errantly mentioned the
term “money laundering” in a general question about cryptocurrency
exchange compliance mechanisms. 7 The court convened a sidebar and
admonished counsel that the money laundering counts had been dismissed
and demanded an explanation of the testimony’s relevance. The
Government explained that the testimony, although related to uncharged
conduct, demonstrated the Bitcoin Shaughnessy liquidated through Gold
were proceeds from the charged drug-trafficking conspiracies, which also
explained why Shaughnessy could not transact with regulated
cryptocurrency exchanges. The court allowed the evidence for this limited
contextual purpose but directed the Government to avoid any reference to
money laundering. Shaughnessy characterizes this testimony as, in
substance, inadmissible character evidence barred by Federal Rule of
Evidence 404(b). See United States v. Meyer, 63 F.4th 1024, 1040 (5th Cir.
2023).
At the outset, whether the testimony implicates Rule 404(b) turns on
whether it was intrinsic to, or extrinsic from, the charged drug-trafficking
conspiracies. United States v. Yi, 460 F.3d 623, 632 (5th Cir. 2006) (“Rule
404(b) . . . only applies to extrinsic evidence and does not prohibit intrinsic
evidence.”). Evidence of other acts is intrinsic where “the evidence of the
_____________________
7
Specifically, the Government asked Agent Samuels: “Okay, you mentioned
BitCoin exchanges. Do they use software and have other procedures in place to combat
money laundering?” See Hr’g Tr. Day 3, ECF-169, 114:7–9.
13
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No. 24-10126
other act and evidence of the crime charged are ‘inextricably intertwined’ or
both acts are part of a ‘single criminal episode’ or the other acts were
‘necessary preliminaries’ to the crime charged.’” United States v. Coleman,
78 F.3d 154, 156 (5th Cir. 1996) (quoting United States v. Williams, 900 F.2d
823, 825 (5th Cir. 1990)). In other words, intrinsic evidence is “admissible to
complete the story of the crime by proving the immediate context of events
in time and place.” Id. (citing United States v. Kloock, 652 F.2d 492, 494–95
(5th Cir. 1981)).
Notwithstanding the Government’s errant mention of “money
laundering,” the evidence of Shaughnessy’s Bitcoin-to-cash transactions was
intrinsic to the charged drug-trafficking conspiracy because it illustrated how
Shaughnessy converted his drug proceeds into cash. Agent Samuels testified
that Shaughnessy arranged for thousands of dollars to be mailed to various
addresses, often with no verifiable connection to him, and never provided
documentation of lawful income. That Shaughnessy turned to Gold after
being rejected by a traditional exchange for failing to verify the source of his
funds strongly corroborated that the Bitcoin he was liquidating came from
illegal activity on DWMs. Indeed, Agent Samuels testified that
Shaughnessy’s Bitcoin “originated one or two steps away” from a DWM.
By showing how Shaughnessy profited from and sustained his illegal
enterprise, evidence of his dealings with Gold helped “complete the story”
of the conspiracy and explained how the operation functioned in practice.
Coleman, 78 F.3d 154, 156; see also, e.g., United States v. Valdez-Anguiano, 91
F.3d 139, 1996 WL 400195 at *4 (5th Cir. 1996) (unpublished) (finding
evidence of defendant’s possession of $289,000 in $20 bills was intrinsic to
a drug-trafficking conspiracy); United States v. Mendez, 643 F. App’x 418,
427 (5th Cir. 2016) (holding that a jury could reasonably find that $150,000
recovered during the traffic stop constituted proceeds of the drug conspiracy
and was therefore intrinsic to the charged offense).
14
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No. 24-10126
Because the challenged evidence was inextricably intertwined with the
charged conspiracy and offered for a non-character purpose, Rule 404(b) is
not implicated. The district court did not plainly err in allowing it.
C
We next consider whether the district court erred by admitting and
allowing the Government to publish to the jury two uncharged videos
depicting child pornography recovered from Shaughnessy’s laptop. Because
Shaughnessy preserved this objection, we review for abuse of discretion,
subject to harmless error analysis. United States v. Kinchen, 729 F.3d 466, 470
(5th Cir. 2013) (citing Coleman, 78 F.3d at 156); Cervantes, 706 F.3d at 616
(citation omitted). A district court abuses its discretion if its ruling rests on
“an erroneous view of the law or a clearly erroneous assessment of the
evidence.” Kinchen, 729 F.3d at 470–71 (quoting United States v. Yanez Sosa,
513 F.3d 194, 200 (5th Cir. 2008)). This standard is “heightened” when the
challenged evidence is admitted under Rule 404(b), as evidence in criminal
trials must be “strictly relevant to the particular offense charged.” Id. at 470
(quoting United States v. Jackson, 339 F.3d 349, 354 (5th Cir. 2003)).
Count Thirteen of Shaughnessy’s indictment charged him with
possession of three images depicting child pornography, which were
admitted and published to the jury. The Government, however, moved to
admit and publish two additional, uncharged videos of child pornography
discovered in the same archive as the charged images to prove his knowledge
of possession. Shaughnessy objected. Although the district court agreed the
videos were subject to Rule 403, it overruled Shaughnessy’s objection,
finding them probative of his knowing possession of child pornography and
that any prejudicial effect did not substantially outweigh their probative
value. Still, the district court provided specific limiting instructions before
their publication that the jury could not consider the videos as evidence
15
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No. 24-10126
unless they found “beyond a reasonable doubt from other evidence in this
case that Mr. Shaughnessy did commit the acts charged in the indictment.”
If so, the jury was permitted to consider the videos to determine (1) “whether
Mr. Shaughnessy had the requisite state of mind or intent necessary to
commit the offense charged in Count 13 of the indictment” and (2) “whether
he had a motive or the opportunity to commit the acts charged in the
indictment” and “acted according to a plan or in preparation for commission
of a crime.” The videos were admitted into evidence and viewed by the jury.
As a threshold matter, we will assume arguendo the at-issue videos
were extrinsic evidence because the district court proceeded on that premise
and admitted them under the more demanding Rule 404(b) standard. See
United States v. Hemphill, 642 F. App’x 448, 452 (5th Cir. 2016) (assuming,
without deciding, that evidence was extrinsic where the district court’s ruling
survived the more demanding Rule 404(b) analysis). The admissibility of the
videos under Rule 404(b) turns on our two-step test announced in United
States v. Beechum, which requires (1) they be relevant to a non-character issue
and (2) their probative value not be substantially outweighed by unfair
prejudice. 582 F.2d 898, 911 (5th Cir. 1978) (en banc). Shaughnessy accepts
that the videos bore on non-character issues (i.e., his knowledge of
possession), 8 but maintains their “graphic and sadistic” nature rendered
them unfairly prejudicial and tainted his defense. We disagree.
First, the two videos were not materially more inflammatory than the
charged files. Each was less than 10 seconds and depicted a nude minor
_____________________
8
We have consistently upheld the admission of uncharged pornography depicting
children or adults when it is, as here, relevant to the issue of the defendant’s knowledge of
possession. See, e.g., United States v. Layne, 43 F.3d 127, 133–34 (5th Cir. 1995); United
States v. Goff, 155 F. App’x 773, 776 (5th Cir. 2005); United States v. Naidoo, 995 F.3d 367,
378 (5th Cir. 2021).
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female placing her fingers in her vagina and a minor child being penetrated
by a male standing behind her. The three images listed in Count Thirteen of
Shaughnessy’s indictment consisted of a minor girl lying on her back, nude
from the waist down, displaying her genitals; a nude minor girl with her legs
spread and displaying her genitals; and a nude minor girl with an object
inserted into her genitals. We cannot say the videos were of such “a different
sexual nature from the photographs” that would render them “exceedingly
prejudicial” because of their “inflammatory nature.” Cf. United States v.
Grimes, 244 F.3d 375, 385 (5th Cir. 2001) (contrasting charged child-
pornography evidence that “depict[ed] no violence” from erroneously
admitted extrinsic evidence describing “violent rapes and moderate torture”
including “young girls in chains, a young girl in handcuffs, and references to
blood”); see also United States v. Caldwell, 586 F.3d 338, 345 (5th Cir. 2009)
(“Grimes is the exception, not the rule.”).
Second, any potential prejudice was limited by the district court’s
careful screening of the evidence and a tailored limiting instructions to the
jury. We have recognized that, although child-pornography evidence carries
a risk of inflaming the jury, such risk is “tempered” when the court
scrutinizes the Government’s proffer and confines the jury’s use of the
evidence. See, e.g., United States v. Williams, 250 F.3d 743 (5th Cir. 2001);
Naidoo, 995 F.3d at 376; Layne, 43 F.3d at 134. Both safeguards were present
here. Both before and during trial, the court scrutinized the videos and
conferred with counsel at length regarding their content, the limited
purposes of admission, and the danger of undue prejudice. It also issued a
detailed limiting instruction cabining the jury’s use of the evidence to
knowledge, intent, motive, plan, or opportunity—and only if the jury first
found, beyond a reasonable doubt from other evidence, that Shaughnessy
committed the charged offense.
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On balance, the district court acted within its discretion in admitting
the two uncharged videos for the limited purposes identified.
D
We end with Shaughnessy’s challenge to the district court’s
application of a five-level sentencing enhancement under U.S.S.G.
§ 2G2.2(b)(7)(D). We review “the application of the Guidelines de novo and
the district court’s factual findings—along with the reasonable inferences
drawn from those facts—for clear error.” United States v. Landreneau, 967
F.3d 443, 449 (5th Cir. 2020) (quoting United States v. Gomez-Valle, 828 F.3d
324, 327 (5th Cir. 2016)). “A factual finding is not clearly erroneous if it is
plausible in light of the record read as a whole.” Id. (citation omitted). “The
Government bears the burden of proving by a preponderance of the relevant
and reliable evidence that the facts support a sentencing enhancement.”
United States v. Rodriguez, 523 F.3d 519, 524 (5th Cir. 2008).
Section 2G2.2(b)(7)(D) applies where an “offense involved 600 or
more images” of child pornography and the Guidelines count each video as
seventy-five images. See § 2G2.2 cmt. n.6(B)(ii). The district court applied
the enhancement based on the conclusion of the Government’s forensic
analyst, Mr. Pircher, that Shaughnessy possessed fourteen images and eight
videos depicting child pornography, or 614 total images. Shaughnessy
maintains that the Government’s own correspondence with NCMEC
appeared to identify fewer qualifying files and that Mr. Pircher’s age-
assessment methodology at the sentencing hearing was insufficiently credible
proof to apply the enhancement.
We conclude the district court did not clearly err in applying
§ 2G2.2(b)(7)(D). The enhancement rested on the PSR and the district
court’s on-the-record credibility determination after an extended colloquy
with Mr. Pircher—findings to which we give substantial deference. United
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States v. Perez, 217 F.3d 323, 331–32 (5th Cir. 2000); United States v. Sotelo,
97 F.3d 782, 799 (5th Cir. 1996) (“Credibility determinations in sentencing
hearings are peculiarly within the province of the trier of fact.”). Mr. Pircher
identified fourteen still images and eight videos on Shaughnessy’s laptop
that, in his opinion, depicted child pornography. In response to the court’s
probing, Mr. Pircher articulated concrete indicia such as body size and the
absence of secondary sexual characteristics, including pubic hair, breast
development, and hip development. He then applied those criteria file-by-file
to the materials supporting the enhancement. The court also examined Mr.
Pircher’s training and prior experience in child-exploitation investigations.
Finally, the arithmetic was undisputed: eight videos counted at seventy-five
images each total 600 images, plus the fourteen images, resulting in a grand
total of 614 images. That is comfortably above the 600-image threshold.
§ 2G2.2 cmt. n.6(B)(ii).
Shaughnessy’s objections do not undermine that showing. He relies
principally on two NCMEC-related communications with the Government
noting that five images were identified as a “known series” of child
pornography, which he reads as inconsistent with the larger tally. But the
PSR addendum explained, and the communications themselves confirmed,
that the “known series” label did not purport to classify all recovered files
and “does NOT mean” the remaining images and videos were not child
pornography. Indeed, the correspondence referenced many additional files
that “may be child pornography” but were harder to classify. The district
court could reasonably credit Mr. Pircher’s file-specific determinations over
the narrower scope of NCMEC’s known-series notation.
Nor do Shaughnessy’s methodological criticisms render Mr.
Pircher’s opinions unreliable. Shaughnessy emphasizes that Mr. Pircher
admitted he was “not a doctor” and could not state the exact ages of the
individuals depicted in the images and videos. But this simply underscores
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that precise medical determinations were neither required nor made; what
mattered were observable characteristics that the court tested through
detailed questioning before crediting Mr. Pircher’s file-by-file assessments.
See United States v. Cordy, 560 F.3d 808, 817 (8th Cir. 2009) (finding no clear
error in applying the enhancement where the court credited federal agent’s
testimony that he reviewed roughly 6,000 images and that most depicted
child pornography despite occasional imprecision). Remaining assertions—
that the analyst was combative or should have evaluated “facial features”
differently—go to credibility and reliability, which the court was uniquely
positioned to evaluate. See Perez, 217 F.3d at 331–32. Shaughnessy otherwise
cites no authority showing these points make the finding implausible “in light
of the record as a whole.” United States v. Juarez-Duarte, 513 F.3d 204, 208
(5th Cir. 2008).
The district court’s finding that the offense involved 600 or more
images of child pornography is supported by “a preponderance of the
relevant and reliable evidence,” Rodriguez, 523 F.3d at 524, and its credibility
judgments were well within its discretion.
III
For the foregoing reasons, we AFFIRM the district court’s
judgment.
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