United States v. Timothy Prunick , 273 F. App'x 807 ( 2008 )

[DO NOT PUBLISH]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, 12 F.3d 195, 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.” Id. A district 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, 181 F.3d 1264, 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.” Id. at
1272.
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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