PRECEDENTIAL
`
`UNITED STATES COURT OF APPEALS
`FOR THE THIRD CIRCUIT
`_______________
`
`Nos. 19-2424 & 19-2932
`_______________
`
`UNITED STATES OF AMERICA
`
`v.
`
`DYLAN HEATHERLY,
`also known as Daniel Sotherland,
`also known as John Doe-9,
`Appellant in No. 19-2424
`_______________
`
`UNITED STATES OF AMERICA
`
`v.
`
`WILLIAM STAPLES,
`also known as Bill Simpson,
`also known as John Doe-7,
`Appellant in No. 19-2932
`_______________
`
`On Appeals from the United States District Court
`for the Middle District of Pennsylvania
`(D.C. Nos. 1:16-cr-00082-010 & 1:16-cr-00082-008)
`District Judge: Honorable Yvette Kane
`_______________
`
`
`
`UNITED STATES COURT OF APPEALS
`FOR THE THIRD CIRCUIT
`_______________
`
`Nos. 19-2424 & 19-2932
`_______________
`
`UNITED STATES OF AMERICA
`
`v.
`
`DYLAN HEATHERLY,
`also known as Daniel Sotherland,
`also known as John Doe-9,
`Appellant in No. 19-2424
`_______________
`
`UNITED STATES OF AMERICA
`
`v.
`
`WILLIAM STAPLES,
`also known as Bill Simpson,
`also known as John Doe-7,
`Appellant in No. 19-2932
`_______________
`
`On Appeals from the United States District Court
`for the Middle District of Pennsylvania
`(D.C. Nos. 1:16-cr-00082-010 & 1:16-cr-00082-008)
`District Judge: Honorable Yvette Kane
`_______________
`
`
`
`Argued: July 8, 2020
`
`Before: McKEE, BIBAS, and FUENTES, Circuit Judges
`
`(Filed: January 14, 2021)
`_______________
`
`
`
`
`
`
`
`
`
`
`
`[ARGUED]
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`
`
`Robert J. Daniels
`Richard H. Katsifis
`Killian & Gephart
`218 Pine Street
`P.O. Box 886
`Harrisburg, PA 17101
`
` Counsel for Appellant Dylan Heatherly
`
`
`
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`
`
`[ARGUED]
`
`
`
`M. Jason Asbell
`Gibbel, Kraybill & Hess
`2933 Lititz Pike
`P.O. Box 5349
`Lancaster, PA 17606
`
` Counsel for Appellant William Staples
`
`Stephen R. Cerutti, II
`Office of United States Attorney
`Middle District of Pennsylvania
`228 Walnut Street
`P.O. Box 11754
`220 Federal Building and Courthouse
`Harrisburg, PA 17108
`
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`[ARGUED]
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`
`
`
`Austin M. Berry
`United States Department of Justice
`Criminal Division
`Child Exploitation and Obscenity Section
`1400 New York Avenue, N.W.
`Washington, DC 20005
`
` Counsel for Appellee
`_______________
`
`OPINION OF THE COURT
`_______________
`
`BIBAS, Circuit Judge.
`
`Dylan Heatherly and William Staples frequented an inter-
`net chat room where users regularly shared child pornography.
`One chat-room user repeatedly live-streamed himself raping
`and sexually abusing his six-year-old nephew. Heatherly and
`Staples encouraged him as he did so. And they repeatedly
`asked users for other child-pornography videos too. A jury
`convicted the men of receiving child pornography and conspir-
`ing to do the same.
`
`Though they challenge their convictions and sentences on
`many grounds, we find no error and will affirm across the
`board. In doing so, we hold that the District Court properly ad-
`mitted videos shown in the chat room of children suffering vi-
`olent sexual abuse. After reviewing that evidence for itself, the
`court properly found that the risk of unfair prejudice did not
`substantially outweigh its probative value. The evidence was
`highly probative of the conspiracy and the defendants’ aware-
`ness of what they were involved in.
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`I. BACKGROUND
`
`Child-pornography cases test our legal system’s commit-
`ment to fairness. That is doubly true of cases involving child
`rape and sexual abuse. Though the details to follow are unset-
`tling, to do justice we must describe the facts explicitly, with-
`out flinching.
`
`A. The investigation
`
`Long before it became a staple of working from home,
`Zoom was regularly used for sharing child pornography. Ra-
`ther than download images or videos, child pornographers and
`viewers can meet in a Zoom conference room while one user
`plays a video and shares his screen. The chat function lets them
`share messages either privately with a single user or publicly
`with everyone in the room.
`
`The child-pornography community has developed its own
`language and rules of conduct in these rooms. Typically, users
`require one another to turn their computers’ webcams on so
`that others can see that they are real users, not bots or police.
`Users have a shorthand to describe the kind of pornography
`they seek, like “K-9” for bestiality, “bby” for babies, or “no
`limit ped perv” for children of any age, even babies. App. 227–
`28, 363–64. They use special lingo to approve and encourage
`sharing contraband, like saying, “hail [user]” after that user
`shares a video. App. 235. And their aliases themselves often
`embrace violence and pedophilia, like “Twisted Brutal
`R4pist,” “babyRaperSnuffer,” and “SEXeducation8-13.” App.
`643, 667, 674.
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`This case stems from the undercover work of Detective
`Constable Janelle Blackadar of the Toronto Police. On the
`evening of July 22, 2015, she logged into a Zoom conference
`room that she knew was used to share child pornography.
`While in the room, she recorded the videos and images that
`were displayed and saved the public messages.
`
`Detective Constable Blackadar watched and preserved sev-
`eral prerecorded videos showing children being sexually
`abused. One video showed an eighteen-year-old man named
`William Augusta (Zoom alias “Guy Johnson”) grabbing his
`six-year-old nephew (Victim-1), hitting him, and forcing him
`to perform oral sex. Augusta then live-streamed from his room:
`as the Zoom users watched and egged him on, he abused his
`nephew again. After the livestream, users shared more pre-
`recorded videos, including one showing men raping babies.
`
`While Augusta was abusing his nephew live, his chat com-
`ments suggested that he was in Pennsylvania. So Blackadar
`reached out to her contacts in the U.S. Government to notify
`them about what she was witnessing. Federal agents then
`phoned Zoom’s CEO to help in the investigation. Zoom gave
`agents the IP address of the user “Guy Johnson.” Police iden-
`tified him as Augusta, used the Zoom images to identify his
`grandmother’s house in Carlisle, Pennsylvania, got a search
`warrant, and found his nephew there. Officers then found Au-
`gusta at his job and arrested him.
`
`Eventually, police managed to trace the IP addresses of
`many of the users who were in the Zoom room that evening.
`Federal prosecutors in the Middle District of Pennsylvania in-
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`dicted fifteen defendants. Twelve pleaded guilty, and a thir-
`teenth died before trial. This appeal focuses on the two defend-
`ants who made it to trial: Heatherly and Staples.
`
`B. The defendants
`
`1. Dylan Heatherly. Heatherly, then 31, lived alone near
`San Diego. He used the Zoom alias “Daniel Sotherland” and
`logged into the room while users were sharing prerecorded
`child pornography. On July 22 at 6:59 p.m. EDT, he posted a
`public comment in the room: “so appreciate if someone
`showed vids—need to bust [that is, ejaculate] before work.”
`App. 678. Less than a minute later, Augusta began streaming
`his live abuse of his nephew. Within three minutes, Heatherly
`posted a second public comment: “so close here.” App. 679.
`
`The livestream continued for roughly twenty more minutes.
`Throughout it, other users expressed their approval. Right be-
`fore Heatherly’s second comment, “dirtypervy” told the other
`users that the live-rape scene “made me shoot haha.” App. 679.
`Other users publicly asked Augusta to abuse the six-year-old
`boy in particular ways: “nyc perv” told Augusta to “get him
`naked”; “babyRaperSnuffer” said, “smack him around a cou-
`ple of times”; and “Andy” asked him to “rape him.” App. 679–
`81.
`
`IP logs linked “Daniel Sotherland” to Heatherly’s address.
`When federal agents got a search warrant and searched his
`home, he spoke to them for hours, admitting that “Daniel
`Sotherland” was his alias and that he watched child
`pornography. Forensic analysts
`found multiple child-
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`pornography images as well as a video on his electronic
`devices.
`
`2. William Staples. Staples, then 56, lived alone in Ken-
`tucky. Using the alias “Bill Simpson,” he logged into the Zoom
`room on July 22 about an hour after Augusta’s livestream
`ended. During his session, Staples posted several comments
`asking other users to stream videos of babies: “any hot bby
`vids?”; “anyone have hot bby vids?”; and “any other….bby?”
`App. 687, 697, 699. After user “cigarffpumpboy” shared a
`video showing the rape of an infant, Staples replied: “hail
`cigarffpumpboy.” App. 692.
`
`As with Heatherly, federal agents used IP logs to trace “Bill
`Simpson” to Staples. They got a search warrant, searched his
`home, and seized electronic devices that had child pornography
`on them. When agents questioned him, he admitted using the
`alias “Bill Simpson” and watching child pornography. He also
`admitted that he knew that users shared child pornography in
`the rooms. But he maintained, as he would through trial and
`sentencing, that he was there not to watch child pornography,
`but only to watch other adult men masturbate.
`
`Forensic analysis of Augusta’s and Staples’s devices re-
`vealed that Staples had also been in the room on February 28,
`2015, another time when Augusta had live-streamed his sexual
`abuse of his nephew. On that date, after Augusta started the
`stream, Staples sent a message asking him: “u live or is that a
`vid?” App. 772. Augusta replied: “you of all people asked; u
`know i’m live.” Id. After learning that he was watching live
`abuse, Staples encouraged Augusta: “can you walk around
`with your cock out?” App. 773.
`
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`3. The charges. Heatherly and Staples were each charged
`with four counts. One count charged each with receiving or
`distributing child pornography; a second charged each with
`conspiring to do the same. 18 U.S.C. § 2252(a)(2), (b)(1). A
`third pair of counts charged Heatherly and Staples respectively
`with knowingly publishing a notice or advertisement seeking
`to receive child pornography, and a fourth count charged each
`with conspiring to do the same. 18 U.S.C. § 2251(d), (e).
`
`C. Trial
`
`At trial, the Government argued that the users in the Zoom
`room, including Heatherly and Staples, met regularly to solicit
`and share child pornography. Detective Constable Blackadar
`caught only one of those meetings. But what she saw there sug-
`gested that there was an ongoing conspiracy. At trial, the Dis-
`trict Court let the Government introduce several exhibits over
`one or both defendants’ objections, including:
`
`• Exhibits 2–8 and 10, videos of child pornography
`played in the Zoom room on July 22, as captured by De-
`tective Constable Blackadar;
`
`• Exhibit 17, Zoom activity logs showing aliases and IP
`addresses of all users who were in the Zoom room on
`July 22;
`
`• Exhibit 21, internet subscriber information showing
`William Staples’s home IP address;
`
`• Exhibit 54, a compilation of Zoom public and private
`chat messages from July 22, combining information
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`captured by Blackadar that evening with information re-
`trieved from the defendants’ devices;
`
`• Exhibit 55, a spreadsheet listing Zoom public and pri-
`vate chat messages between January and July 2015,
`taken from Augusta’s devices; and
`
`• Exhibit 61, a spreadsheet listing all Zoom users whose
`information was
`found on
`either Augusta’s,
`Heatherly’s, or Staples’s devices.
`
`Heatherly and Staples called no witnesses. Rather than dis-
`pute facts, they tried to poke holes in the Government’s legal
`theories. In his closing argument, Heatherly’s lawyer focused
`on the conspiracy charges, arguing that the Government had
`showed only that Heatherly was a “spectator[,] . . . not a conspira-
`tor.” App. 383. And he challenged whether any of Heatherly’s
`chats amounted to an ad seeking child pornography.
`
`Staples’s lawyer challenged the Middle District of Pennsyl-
`vania as the wrong venue for prosecuting Staples for publish-
`ing a notice or ad. On the merits, he noted that on July 22, Sta-
`ples was not in the Zoom room until more than an hour after
`the live-streamed rape. And like Heatherly’s lawyer, he ques-
`tioned the legal theories supporting the conspiracy and adver-
`tising charges.
`
`The jury convicted both defendants of receiving or distrib-
`uting child pornography and conspiring to do the same. But it
`acquitted both defendants of publishing a notice or ad seeking
`child pornography. On the charge of conspiring to publish such
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`a notice or ad, the jury convicted Staples but deadlocked on
`Heatherly.
`
`D. After trial
`
`Because the crimes were so serious, the Sentencing Guide-
`lines recommended imprisoning Heatherly and Staples for
`forty and seventy years. But the District Court varied down-
`ward, sentencing Heatherly to twenty-five years and Staples to
`thirty.
`
`On appeal, Heatherly and Staples argue:
`
`• The District Court should have dismissed their con-
`victions because there was insufficient evidence of
`conspiracy and on venue;
`
`• It erred by admitting explicit child pornography into
`evidence;
`
`• It erred in admitting various other exhibits;
`
`• It should have severed Staples’s
`Heatherly’s;
`
`trial from
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`• It gave an improper jury instruction on venue; and
`
`• It miscalculated their Sentencing Guidelines ranges.
`
`We reject all these arguments and will affirm.
`
`II. SUFFICIENCY OF THE EVIDENCE
`
`Both Heatherly and Staples challenge whether there was
`enough evidence of conspiracy to support their convictions.
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`We must take the evidence in the light most favorable to the
`prosecution and ask whether “any rational trier of fact could
`have found the essential elements of the crime beyond a rea-
`sonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979)
`(emphasis omitted).
`
`To prove conspiracy, the Government had to show (1) that
`two or more people agreed to commit the substantive crime (of
`receiving child pornography, and in Staples’s case, posting an
`ad seeking to receive it); and (2) that the defendant joined the
`agreement knowing of its objective and intending to join with
`at least one other conspirator to achieve it. See United States v.
`Rigas, 605 F.3d 194, 206 n.9 (3d Cir. 2010) (en banc); United
`States v. Navarro, 145 F.3d 580, 593 (3d Cir. 1998); see also
`Whitfield v. United States, 543 U.S. 209, 213–16 (2005) (hold-
`ing that federal conspiracy statutes do not require an overt act
`unless their texts so provide, as in 18 U.S.C. § 371); 18 U.S.C.
`§§ 2251(e), 2252(b)(1) (not requiring an overt act).
`
`A conspiracy does not require an express agreement. A
`“tacit agreement” is enough. People can tacitly agree when
`they “engage[ ] as a group” to achieve “a common goal.”
`United States v. Smith, 294 F.3d 473, 478 (3d Cir. 2002). A
`group’s “many unusual acts” can be enough evidence to let a
`jury infer that the group was tacitly working together. Id. Here,
`there was ample evidence that Staples and Heatherly were part
`of a conspiracy.
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`A. Staples’s connection to the conspiracy
`
`Staples argues that the Government presented no evidence
`of any agreement to violate 18 U.S.C. § 2251(d). That subsec-
`tion criminalizes “knowingly mak[ing] . . . any notice or adver-
`tisement seeking . . . to receive . . . [a] visual depiction in-
`volv[ing] the use of a minor engaging in sexually explicit con-
`duct.” In fact, there was plenty of evidence that Staples and the
`other chatroom users conspired to violate § 2251(d).
`
`To start, while Staples was logged on, the chatroom users
`asked for child pornography countless times. On July 22, users
`asked the group for “Any more babys,” for “baby vids msg
`me,” and whether Victim-1 was “still there” to be abused. App.
`695, 697. On February 25, users asked for “Any vids,” “any
`hot vids or pics?,” “any 0 to 3,” and “any vids guys?” App.
`771–73.
`
`Staples argues that he never agreed with the other users to
`make those requests, but was just a bystander. There was
`plenty of evidence to rebut that argument. The chat log shows
`that the users swapped videos and egged one another on as part
`of a single, coherent group. E.g., App. 767 (“i shared last.
`who’s next?”); id. at 776 (“HAIL”). And Staples was an active
`participant in this group. He publicly celebrated when people
`posted videos. App. 692 (“hail cigarffpumpboy”). When there
`was a lull in the chatroom, he privately complained that “no
`one [was] shareing.” App. 771. And within moments of other
`people’s requests, he made nearly identical requests of his own.
`E.g., App. 687 (“any hot bby vids?”); id. at 699 (“any
`other….bby?”); id. at 771 (“did you have some hot ones to
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`share?”). A jury viewing this evidence could certainly con-
`clude that Staples was tacitly working with other members of
`the group to ask for and get child pornography.
`
`There was other circumstantial evidence of a conspiracy
`too. The users congregated in chat rooms that required a ten-
`digit room ID, so a user could not stumble into the room acci-
`dentally. And they protected their crimes by requiring every-
`one logged in to have his webcam on. These security measures
`suggested that the users were working together; at least, they
`had to tell each other what the password was and to turn on
`their cameras.
`
`It does not matter that Staples never explicitly agreed with
`another user to post a notice seeking child pornography. He
`was part of a group of like-minded people who got together
`repeatedly to do just that. The shocking videos, pictures, and
`comments discussed below further support the jury’s finding
`that by frequenting this room, Staples agreed to the overarch-
`ing conspiracy.
`
`Staples’s challenge to the evidence of venue for that con-
`spiracy likewise fails. Prosecutors must prosecute a crime in a
`district where the crime was committed. U.S. Const. art. III,
`§ 2, cl. 3; id. amend. VI; Fed. R. Crim. P. 18. The Government
`bears the burden of proving that venue is proper for each count,
`but only by a preponderance of the evidence. United States v.
`Root, 585 F.3d 145, 155 (3d Cir. 2009). Venue is proper in any
`district where a defendant did any of the “crucial elements” of
`the crime. Id. at 156; 18 U.S.C. § 3237(a). For conspiracy,
`venue lies “wherever a co-conspirator has committed an act in
`furtherance of the conspiracy.” United States v. Perez, 280
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`F.3d 318, 329 (3d Cir. 2002) (citing Hyde v. United States, 225
`U.S. 347, 363–64 (1912)).
`
`There was enough evidence linking Staples to the Middle
`District of Pennsylvania. Staples argues that he was not logged
`in during Augusta’s July 22 sexual abuse. But that does not
`matter. “Although [Staples] himself did not act in the [Middle]
`District of Pennsylvania or direct any of his actions there, [a]
`co-conspirator[ ] ,” Augusta, live-streamed the video from
`there. United States v. Renteria, 903 F.3d 326, 331 (3d Cir.
`2018). Augusta’s “overt act[ ] in furtherance of the conspiracy
`[is] certainly sufficient to establish venue.” Id at 331–32.
`
`B. Heatherly’s connection to the conspiracy
`
`Heatherly argues that he was just a viewer, not a member
`of the conspiracy. We take that argument as a concession on
`the substantive charge of receiving child pornography. Be-
`cause he never sought a judgment of acquittal on the conspir-
`acy charge, we review for plain error. There was none.
`
`Heatherly’s claim fails for the same reasons that Staples’s
`does. Indeed, unlike Staples, Heatherly was in the room and
`commenting while Augusta live-streamed his rape of his
`nephew on July 22. We need not canvas all the other evidence
`here; we explore much of it below.
`
`III. ADMISSION OF THE CHILD PORNOGRAPHY
`
`At trial, the Government introduced and showed the jury
`condensed versions of videos shown in the Zoom room on July
`22. These videos, Heatherly and Staples object, were inadmis-
`sible under Federal Rules of Evidence 402 and 403. Rule 402
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`requires courts to exclude irrelevant evidence; Rule 403 lets
`them exclude some relevant but unfairly prejudicial evidence.
`The jury also learned of child-pornography images and videos
`found on their devices. Heatherly and Staples claim that the
`District Court should have excluded that evidence under Rules
`403 and 404(b) (which requires courts to exclude some evi-
`dence of bad acts).
`
`A word before we go on: The descriptions of the Zoom vid-
`eos that follow are horrifying. Though often we can resolve
`legal issues “without subjecting the reader to the graphic and
`disturbing details of the [child] pornography,” those details are
`unavoidable when we confront a fact- and context-specific
`challenge under Rule 403. United States v. Cunningham, 694
`F.3d 372, 377 n.8 (3d Cir. 2012). “To say that the . . . descrip-
`tions of the video excerpts are loathsome is an understate-
`ment.” Id. at 381 n.10. Even so, we cannot shy away from scru-
`tinizing them. A sanitized description would obscure whether
`the videos were unfairly prejudicial. Thus, we must confront
`the troubling details head-on.
`
`A. The Zoom videos
`
`At the start of trial, Detective Constable Blackadar de-
`scribed the eight challenged videos (ages and times are
`approximate):
`
`• Exhibit 2 runs for two minutes and shows a man vag-
`inally penetrating a four-year-old girl. The jury
`watched a five-second clip of it at normal speed.
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`• Exhibit 3 is a five-and-a-half-minute-long compila-
`tion of “hurtcore,” a subgenre involving the “torture
`or pain and the sexual assault of children.” App. 236.
`Many of the clips show a man vaginally or anally
`raping a three- or four-year-old girl. One clip shows
`a man urinating on that toddler’s face. Yet another
`shows a man ejaculating on the vaginal area of a
`four-to-six-year-old girl. The jury watched this
`video on fast forward for thirteen seconds.
`
`• Exhibit 4 runs for a minute and a half and shows a
`man anally raping a four-to-six-year-old boy. The
`Government did not show this video to the jury.
`
`• Exhibit 5 runs for almost eight minutes and shows
`an eight-year-old girl performing oral sex on a man.
`Near the end, the man forces his penis into her
`mouth and then ejaculates on her face. The jury
`watched part of this video on fast forward for twelve
`seconds.
`
`• Exhibit 6 runs for three and a half minutes, showing
`Augusta grabbing, hitting, and forcing his nephew to
`perform oral sex on him. The jury watched a ten-
`second clip at normal speed.
`
`• Exhibit 7 is a nine-minute recording of Augusta’s
`live abuse of his nephew. Blackadar captured only
`part of the twenty-two-minute livestream. During
`that part, six-year-old Victim-1 performs oral sex on
`Augusta. Augusta then puts his nephew in his lap,
`masturbates him, penetrates the boy’s anus with his
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`finger, and then puts that finger into the boy’s
`mouth. The jury watched the first two minutes of
`that video on fast forward over thirteen seconds.
`
`• Exhibit 8 is a three-and-a-half-minute-long compi-
`lation of adults sexually abusing prepubescent chil-
`dren. The Government did not show this video to the
`jury.
`
`• Exhibit 10 is a thirteen-minute-long compilation of
`adults sexually abusing babies. Parts show men forc-
`ing their penises into their victims’ mouths. One part
`shows a tied-up baby being anally penetrated. The
`jury watched the first five seconds at normal speed,
`then a seven-minute clip on fast forward over the
`course of ten seconds.
`
`No audio was played with any of the videos.
`
`Heatherly and Staples make three arguments why the Dis-
`trict Court should have excluded these exhibits. First, the Gov-
`ernment could not prove that Heatherly watched any of the vid-
`eos on July 22; indeed, he was not even logged into the room
`when most of them were shown. Staples likewise was not
`logged in on July 22 while any of the videos played. Thus, they
`argue, the videos were irrelevant.
`
`Second, in deciding whether the videos were admissible un-
`der Rule 403, the District Court never explained on the record
`how it balanced the videos’ probative value against their po-
`tential for unfair prejudice. Heatherly and Staples argue that
`this failure was a per se reversible error. And third, they claim
`
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`the District Court abused its discretion by letting the jury see
`these “shockingly prejudicial” videos. Heatherly Br. 22.
`
`We review the District Court’s admission of this and all ev-
`idence for abuse of discretion. United States v. Tyson, 947 F.3d
`139, 142 (3d Cir. 2020). On this record, we find no abuse of
`discretion.
`
`1. The videos were relevant. The Government’s theory of
`the conspiracy was that over several years, Heatherly, Staples,
`and many other coconspirators would meet online to share and
`watch child pornography. To prove an illegal conspiracy, the
`Government had to show that the users had a “tacit agreement.”
`Appellee’s Br. 26. And the more taboo the events in the Zoom
`room, the more likely that such a tacit agreement existed. That
`is especially true when one considers the alternative: that these
`men, all interested in illegal child pornography, happened to
`wander into the same private Zoom room at the same time. The
`challenged exhibits show how taboo the room was and what
`happened there, whether or not Heatherly and Staples saw
`these exact videos on that particular evening. They thus make
`it more likely that those present shared a tacit agreement. Fed.
`R. Evid. 401. So they are relevant.
`
`2. Failure to articulate Rule 403 balancing was not re-
`versible error. District courts may exclude evidence “if its pro-
`bative value is substantially outweighed by a danger of . . . un-
`fair prejudice.” Fed. R. Evid. 403. When a district court faces
`a Rule 403 objection, it must balance these two competing fac-
`tors. See United States v. Finley, 726 F.3d 483, 491 (3d Cir.
`2013). It should explain its reasoning on the record; when it
`does so, “we will rarely disturb its ruling.” Id. (quoting United
`
`
`
`
`18
`
`
`
`States v. Sampson, 980 F.2d 883, 889 (3d Cir. 1992)). But we
`do not prescribe exactly what it must say, so long as it makes
`clear that it balanced the Rule 403 factors. We have affirmed a
`district court’s overruling of a Rule 403 objection even when
`it just said that the probative value outweighed the risk of un-
`fair prejudice. Id.
`
`We prefer that the district court show its work. That is the
`wiser and sounder course. But we will affirm so long as it
`makes clear that it did the weighing itself. Compare, e.g., id.
`(affirming because it was clear that the district court did the
`balancing), with Sampson, 980 F.3d at 889 (reversing because
`it was not clear that the court did the analysis at all), and Gov’t
`of the V.I. v. Pinney, 967 F.2d 912, 918 (3d Cir. 1992) (same).
`
`Here, the District Court said just enough to confirm that it
`did the Rule 403 balancing. Before trial, the lawyers argued
`back and forth about Rule 403. At trial, when the Government
`first tried to introduce the videos, both Heatherly and Staples
`objected that the videos would be “highly prejudicial.” App.
`244. The District Court acknowledged the Rule 403 objection
`and heard further argument from defense counsel and the Gov-
`ernment. It then held that the Government had shown that the
`videos would not unduly prejudice Heatherly, but deferred its
`ruling pending further foundation as to Staples: “[B]efore we
`even get to the [Rule] 403 analysis, I want to know when it is
`you’re planning to show [the videos’] connection” to Staples.
`App. 244. Near the end of trial, after laying that foundation, the
`Government again moved to admit Exhibits 2–8 and 10. The
`court noted the previous objection, said it was preserved, and
`admitted the videos. True, it did not articulate its Rule 403
`
`
`
`
`19
`
`
`
`analysis or mention probative value and prejudice. But it did
`refer back to the Rule 403 analysis that it had promised to do
`once the Government laid more of a foundation.
`
`In context, we see that the court did the analysis and con-
`cluded that Rule 403 did not bar the evidence. As we said in
`Finley, the more a district court says, the better. See 726 F.3d
`at 491. But as we also said in Finley, a district court need say
`only enough to show that it weighed the Rule 403 factors. It
`said just enough here.
`
`3. The District Court did not abuse its discretion by admit-
`ting the exhibits. District courts deserve broad deference in ap-
`plying Rule 403. The rule is written in discretionary terms:
`“The court may exclude . . . .” Fed. R. Evid. 403 (emphasis
`added). And the caselaw “stress[es] the extraordinary breadth
`of discretion that this Rule invites.” Christopher B. Mueller &
`Laird C. Kirkpatrick, 1 Federal Evidence § 4:12 (4th ed. 2020).
`So we normally reject bright-line rules about what evidence
`must be excluded under Rule 403. See Cunningham, 694 F.3d
`at 391 (declining to adopt a bright-line rule excluding poten-
`tially inflammatory child pornography). Rather, we must judge
`each case on its own facts and record.
`
`Another point bears note. Rule 403 bars not all prejudice,
`but only unfair prejudice. United States v. Bergrin, 682 F.3d
`261, 279 (3d Cir. 2012). It does not protect defendants from
`devastating evidence in general. The exhibits were disturbing
`because the alleged crimes themselves were extraordinarily
`disturbing. Rule 403 is not a shield to keep juries from learning
`details of horrific crimes. United States v. DeMuro, 677 F.3d
`550, 559 (3d Cir. 2012).
`
`
`
`
`20
`
`
`
`These videos were highly probative. Proving a conspiracy
`required showing more than that someone played child pornog-
`raphy on July 22. The Government had to prove that the room
`was a haven for child pornography, a place where pedophiles
`would keep gathering to share in their vile pastime. Yet be-
`cause the undercover agent was there only one time, the Gov-
`ernment could not prove directly that anyone played child por-
`nography at other times. For those other times, all the Govern-
`ment had were Zoom usernames and comment logs. So it
`needed to give the jury a snapshot so that the jury could match
`the commentary to the visual events. That snapshot was the
`evening of July 22. Having heard descriptions and seen clips
`of the child pornography streamed that evening, the jury could
`better grasp the scope of the alleged conspiracy and the tacit
`agreement driving it. To do that, it had to see those videos
`firsthand.
`
`And jurors had to see the videos themselves, not just hear
`descriptions or stipulations, to appreciate that anyone who fre-
`quented that room must have approved of the images shared
`there. Both defendants claimed at some point that they were
`not really interested in child pornography but visited the room
`because they wanted to watch other men masturbate. If the jury
`had believed those defenses, it might have doubted whether the
`defendants really agreed to request child pornography. But the
`horrific videos demolished those defenses. They proved that
`Heatherly and Staples would not have frequented the room un-
`less they wanted to watch images of children being sexually
`abused. No one would have gone back to the room innocently,
`thinking that the images the first time around were borderline
`or a fluke.
`
`
`
`
`21
`
`
`
`The probative value here was thus greater than in run-of-
`the-mill cases of simple possession of child pornography. In
`those cases, defendants often concede that anyone who
`watched the videos would know that they were child pornog-
`raphy. Instead, the only factual dispute is whether the defend-
`ant knew the files were on the computer. See, e.g., United
`States v. Welshans, 892 F.3d 566, 571 (3d Cir. 2018); Cunning-
`ham, 694 F.3d at 379–80. The videos here did much more than
`that.
`
`True, some of our recent Rule 403 analyses of child por-
`nography have come out differently. In Cunningham and
`Welshans, we held that the district courts erred in admitting the
`evidence. 694 F.3d at 383; 892 F.3d at 576. But Rule 403 anal-
`ysis is always fact- and context-specific. And each case is dis-
`tinguishable in several important ways.
`
`Start with Cunningham. That case involved no conspiracy
`charges. The district court had let the jury watch excerpts of
`two graphic child-pornography videos. 694 F.3d at 379–82.
`The court overruled a Rule 403 objection, relying only on the
`Government’s descriptions of the videos and without watching
`the videos itself before it ruled. Id. at 379. We held that it had
`abused its discretion, agreeing with several other circuits that a
`trial court must see the challenged exhibits for itself. See id. at
`383–87. And because the court had not watched the videos, we
`did not afford it the usual Rule 403 deference. See id. at 388.
`That procedural error was intertwined with the substantive er-
`ror and crucial to Cunningham’s outcome. Id. at 392; see also
`Welshans, 892 F.3d at 575.
`
`
`
`
`22
`
`
`
`On our independent review, we held that the court should
`have excluded the challenged videos. Cunningham, 694 F.3d
`at 388. The exhibits were probative, as they were the actual
`child pornography that the defendant had possessed, and their
`lurid content tended to show that he knew what they depicted.
`See id. at 389. But because neither issue was disputed at trial,
`that probative value was minimal. See id. at 377–80. So their
`admission already tested the limits of the O
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