No Error Committed Where District Court Limited Defense Evidence of Alternative Perpetrator

United States v. Meisel, 2017 WL 5346382 (November 14, 2017) (KS) (J. Murphy)(published): The panel finds the district court did not violate Meisel’s right to present a complete defense by restricting his alternative perpetrator evidence. The trial court told Meisel, that without proof, he could not argue others had downloaded the child pornography on his computer. Although the panel concedes he presented persuasive evidence that others had used his computer in his absence, the court’s error, if any, was harmless. First, these people testified that they used Meisel’s computer so that in closing he was able to credibly argue that they downloaded the pornography. Second, Meisel’s guilt was overwhelming - the government showed the pornography was frequently accessed outside the times when others were using his computer. The panel also affirmed the trial court’s decision not to give Meisel’s modified identity instruction. It concluded his proposed instruction was a theory of defense instruction, not one as to potential reliability issues regarding an eyewitness to the child pornography charges. Besides, notes the panel, a theory of defense instruction is not required if it would simply give the jury a clearer understanding of the issues. Remember this line when the government asks for an instruction specifically crafted to bolster its case.