## Facts

- Jeffrey A. Kilbride and a co-defendant operated an online pornography business and marketed it through mass unsolicited commercial emails.
- The emails were sent in extremely large volumes and included explicit images promoting the website for paid access.
- The government alleged the defendants used false or misleading header information and concealed their identities by using fake usernames and domains to hinder traceability.
- Complaints about the spam emails were made to internet service providers (including AOL) and to the Federal Trade Commission.
- Federal agents executed a search of Kilbride’s home; the government sought to introduce evidence of his conduct during the search as probative of concealment or consciousness of guilt.
- After a jury found Kilbride guilty of offenses including criminal CAN-SPAM violations (18 U.S.C. § 1037), he moved for judgment of acquittal (Rule 29) or, alternatively, a new trial (Rule 33), contesting sufficiency and multiple evidentiary rulings.

## Issues

1. Whether the trial evidence was sufficient for a rational jury to find the elements of CAN-SPAM and related offenses beyond a reasonable doubt (Rule 29).
2. Whether the court erred under Rules 401 and 403 by admitting: (a) expert testimony explaining email routing, headers, and attribution; (b) complaint evidence to AOL and the FTC; (c) pornographic images from the emails; and (d) evidence of defendant’s conduct during the FBI search as consciousness-of-guilt proof.
3. Whether alleged evidentiary errors or unfair prejudice, individually or cumulatively, required a new trial in the interest of justice (Rule 33).

## Decision

- The court denied Kilbride’s Rule 29 motion for judgment of acquittal.
- The court denied Kilbride’s Rule 33 motion for a new trial.
- The court held the challenged categories of evidence were relevant and, as presented, not subject to exclusion under Rule 403.
- The court concluded the jury’s verdict was supported by sufficient evidence linking Kilbride to the email campaign, the deceptive header/domain practices, and knowing participation in the scheme.

## Legal Principles

- Rule 29: A conviction stands if, viewing the evidence in the light most favorable to the prosecution, a rational jury could find guilt beyond a reasonable doubt.
- Rule 33: A new trial is warranted only where the interest of justice so requires; asserted trial errors must be sufficiently prejudicial to undermine confidence in the verdict.
- Rules 401/403: Technical expert testimony may be admitted when it assists the jury in understanding complex systems (e.g., email transmission and attribution); probative value is weighed against unfair prejudice and confusion.
- Complaint evidence may be admissible for contextual and probative purposes (including demonstrating scale, impact, and knowledge/intent), subject to hearsay limits and Rule 403 balancing.
- Pornographic images tied to charged communications may be admitted to prove the nature of the material promoted and defendants’ intent/knowledge; “mere availability of comparable materials” does not itself establish community standards.
- Evidence of concealment or evasive conduct during investigation may be relevant as consciousness-of-guilt evidence, subject to Rule 403 constraints and trial management tools such as limiting instructions.

## Conclusion

The district court upheld the jury’s guilty verdicts by finding the evidence sufficient under Rule 29 and determining that admission of expert technical testimony, complaint evidence, pornographic images, and consciousness-of-guilt evidence fell within permissible relevance and prejudice limits, leaving no basis for a new trial under Rule 33.


United States v. Kilbride, 507 F. Supp. 2d 1051 (D. Ariz. 2007)