UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 22-3033 ___________

UNITED STATES OF AMERICA, Appellant

v.

RODERICK T. LONG

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On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 2-21-cr-00087-001) District Judge: Honorable J. Nicholas Ranjan ____________

Argued on November 28, 2023

Before: HARDIMAN, FREEMAN, and MONTGOMERY- REEVES, Circuit Judges.

(Filed: February 8, 2024) Troy Rivetti Donovan J. Cocas [Argued] Laura S. Irwin Matthew S. McHale Office of United States Attorney 700 Grant Street Suite 4000 Pittsburgh, PA 15219 Counsel for Appellant Kelvin L. Morris [Argued] Law Office of Kelvin L. Morris 310 Grant Street Suite 707 Pittsburgh, PA 15219 Counsel for Appellee

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OPINION OF THE COURT ____________

HARDIMAN, Circuit Judge.

In United States v. Cunningham, 694 F.3d 372 (3d Cir. 2012), we held that the district court abused its discretion when it admitted evidence in a criminal case over defense counsel’s objection without examining it. This appeal presents the inverse question: did the District Court abuse its discretion by excluding evidence offered by the Government without

2 examining it? We hold that it did, so we will vacate and remand.

I

A

In 2006, Roderick Long pleaded guilty to receiving material depicting the sexual exploitation of a minor, in violation of 18 U.S.C. § 2252(a)(2). He was sentenced to 121 months’ imprisonment followed by a lifetime of supervised release with conditions limiting his access to computers and certain sexually explicit materials. United States v. Long, 304 F. App’x 982, 983–84 (3d Cir. 2008).

In 2020, seven years after Long’s release from prison, Pennsylvania state law enforcement received a tip from Microsoft through the National Center for Missing and Exploited Children that someone had uploaded child pornography1 using Skype.2 Law enforcement determined that the upload came from Long’s residence in Clinton, Pennsylvania. After obtaining and executing a search warrant, 1 As the Government points out, “child sexual abuse material” or CSAM is a more accurate label than “child pornography” because the material inherently documents child exploitation and sexual abuse. Gov’t Br. 3 n.2. Though “child pornography” is a misnomer, we use that terminology because it is used in federal statutes. See, e.g., 18 U.S.C. § 2252A. 2 Throughout this opinion, we refer to the allegations giving rise to the indictment and the evidence the Government may present at trial—not proven facts.

3 law enforcement found more than 500 videos and more than 60 photos of child pornography on Long’s electronic devices and cloud storage account. The child pornography included videos and images of infants and toddlers.

Long was indicted for knowingly possessing child pornography involving victims under 12 years old, in violation of 18 U.S.C. §§ 2252(a)(4)(B) and 2252(b)(2). This crime contains four elements: (1) Long knowingly possessed visual depictions of minors engaging in sexually explicit conduct; (2) the visual depictions were mailed, transported, or shipped in interstate commerce or were produced using materials which had been mailed, transported, or shipped in interstate commerce; (3) production of the visual depictions involved minors engaging in sexually explicit conduct, which includes lascivious exhibition of the genitals; and (4) the visual depictions involved at least one minor who was prepube