United States v. Newburn

58 F. App'x 358

Opinion

MEMORANDUM

Footnotes

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Jamie Newburn (“Newburn”) argues that the government’s introduction of certain explicit images at his trial was reversible error. Newburn contends that the images were excludable under Federal Rules of Evidence 404(b) and 403 because they did not prove a material fact and were unfairly prejudicial. However, while Newburn registered his objection to the introduction of the images prior to trial, he chose to mention them in his own direct testimony. The Supreme Court unambiguously held in Ohler v. United States, 529 U.S. 753, 120 S.Ct. 1851, 146 L.Ed.2d 826 (2000), that “a party introducing evidence cannot complain on appeal that the evidence was erroneously admitted.” Id. at 755. Ohler held that a defendant may not “short circuit” the government’s right to decide whether to use evidence against the defendant by offering the evidence himself and “still preserve its admission as a claim of error on appeal.” Id. at 758. This is precisely what Newburn attempted to do in this case.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.