Ensuring Timely Expert Disclosures Under Rule 16(a)(1)(G) and Sentencing Enhancement for Acquitted Conduct in Child Pornography Prosecutions

Introduction

This commentary examines the Fourth Circuit’s unpublished per curiam decision in United States v. Jason Shortridge (No. 23-4684, decided April 28, 2025). The appellant, Jason Shortridge, was convicted of possession and attempted distribution of child pornography under 18 U.S.C. §§ 2252A(a)(2), (a)(5)(B), (b)(1), (b)(2). At issue on appeal were (1) the timeliness of the government’s expert‐witness disclosure under Federal Rule of Criminal Procedure 16(a)(1)(G); (2) the sufficiency of the evidence supporting the convictions; and (3) the procedural and substantive reasonableness of the 168-month sentence imposed, including a two-level enhancement for distribution under U.S.S.G. § 2G2.2(b)(3)(F). The Fourth Circuit affirmed, establishing two key principles: (i) a district court may grant a continuance rather than exclude untimely expert testimony under Rule 16 when the defendant suffers no prejudice, and (ii) acquittal on distribution counts does not bar a sentencing enhancement based on distribution conduct proven by a preponderance of the evidence.

Summary of the Judgment

The Fourth Circuit rejected all three of Shortridge’s appellate arguments:

1. Rule 16 disclosure. The court held that although the government disclosed the second forensic expert’s expected testimony after the district‐court deadline, the district court acted within its discretion in granting a two-month continuance rather than excluding the testimony. Shortridge failed to show prejudice from the delay.
2. Sufficiency of evidence. Viewing the record in the light most favorable to the government, the appellate court found ample proof that Shortridge knowingly downloaded, retained, and made available child pornography via the Shareaza peer-to-peer network, and that he took substantial steps toward distribution.
3. Sentencing. The court found no procedural error in applying the § 2G2.2(b)(3)(F) two-level enhancement for distribution—Shortridge knowingly installed and used sharing software—and no substantive unreasonableness in the below-Guidelines sentence of 168 months, which fell well within the § 3553(a) factors and elicited a presumption of reasonableness.

Analysis

Precedents Cited

• Fed. R. Crim. P. 16(a)(1)(G) and advisory committee notes (1993 Amendment) — establishing the disclosure requirement for expert witness summaries without a fixed timing rule but urging “timely” disclosures.
• United States v. Holmes, 670 F.3d 586 (4th Cir. 2012) — Rule 16 timeliness is reviewed for abuse of discretion.
• United States v. Garcia-Lagunas, 835 F.3d 479 (4th Cir. 2016) — purpose of Rule 16 is to minimize surprise and permit cross-examination.
• United States v. Sterling, 724 F.3d 482 (4th Cir. 2013) — a continuance is the preferred sanction for Rule 16 violations.
• United States v. Smith, 701 F.3d 1002 (4th Cir. 2012) — defendant bears the burden to show Rule 16 violation and prejudice.
• United States v. Foster, 507 F.3d 233 (4th Cir. 2007) and United States v. Dinkins, 691 F.3d 358 (4th Cir. 2012) — standards for reviewing sufficiency of evidence.
• United States v. Neal, 78 F.3d 901 (4th Cir. 1996) — attempt requires a substantial step and culpability.
• Gall v. United States, 552 U.S. 38 (2007) — abuse-of-discretion standard for sentencing reasonableness.
• United States v. Kokinda, 93 F.4th 635 (4th Cir. 2024) — burden of proof by preponderance for sentencing enhancements.
• United States v. Gutierrez, 963 F.3d 320 (4th Cir. 2020) — presumption of substantive reasonableness for within- or below-Guidelines sentences.

Legal Reasoning

Rule 16 Disclosure and Sanction. The Fourth Circuit reasoned that Rule 16(a)(1)(G) imposes a disclosure duty but does not fix a deadline; timeliness rests in the district court’s discretion. When the government disclosed the second expert’s testimony one day after the court-ordered deadline, the district court—rather than excluding the expert—granted a reasonable two-month continuance. Because Shortridge did not show that the delay “so changed the defense’s ability to cross-examine” the witness, no Rule 16 prejudice existed and no abuse of discretion occurred (cf. Smith, 701 F.3d at 1008; Garcia-Lagunas, 835 F.3d at 494).

Sufficiency of Evidence. Applying the standard from Foster and Dinkins, the court treated all evidence and reasonable inferences in the government’s favor. The record showed that Shortridge knowingly installed Shareaza, acknowledged its peer-to-peer sharing feature, used child-pornography search terms, viewed multiple illicit files, and kept over a thousand images accessible. That proof satisfied the elements of possession and a “substantial step” toward attempted distribution under 18 U.S.C. § 2252A (cf. Neal, 78 F.3d at 906).

Sentencing Enhancement & Acquitted Conduct. The district court applied U.S.S.G. § 2G2.2(b)(3)(F) upon finding by a preponderance that Shortridge knowingly distributed child pornography via Shareaza. Although the jury acquitted on two distribution counts, the court noted that acquitted conduct remains usable at sentencing in non-retroactive amendment contexts. Under Kokinda, no clear error arose in the factual finding, and under Gall and Gutierrez, the below-Guidelines 168-month term—within the properly calculated 210–262-month range—carries a presumption of substantive reasonableness the appellant failed to rebut.

Impact

This decision reinforces critical trial and sentencing practices:

• District courts have broad discretion to manage expert disclosures. A short continuance—when timely notice has been given and no real prejudice ensues—is the favored remedy over exclusion of key testimony.
• Defendants must demonstrate actual prejudice to obtain a sanction under Rule 16; mere untimeliness alone is insufficient.
• Courts may rely on acquitted conduct in calculating Guidelines enhancements so long as the enhancements are supported by the preponderance of the evidence and no constitutional violation occurs.
• Peer-to-peer network activity—installation, acknowledgments of sharing terms, search logs, and data residue—remains powerful evidence of knowing possession and distribution in child pornography prosecutions.

Complex Concepts Simplified

• Rule 16(a)(1)(G) Disclosure: The government must give advance notice of expert testimony it plans to offer, but the rule itself does not set a fixed deadline. Courts set deadlines by order or local rule.
• Continuance vs. Exclusion: When the government misses a disclosure deadline, the court may either delay the trial to give the defense time to prepare or, in rare cases, exclude the witness. A delay is almost always preferred if the defense is not harmed.
• Sufficiency of Evidence: An appellate court upholds a conviction when any rational jury could find guilt beyond a reasonable doubt, giving the government the benefit of all reasonable inferences.
• Sentencing Enhancement for Distribution: The Sentencing Guidelines allow extra prison time if the defendant knowingly shared or made available illicit files, even if no one else downloaded them.
• Acquitted Conduct: Evidence of acts for which a defendant was acquitted can still be considered at sentencing, provided the sentencing enhancement is proven by the lower burden of a preponderance of the evidence and no retroactivity bar applies.

Conclusion

The Fourth Circuit’s decision in United States v. Shortridge affirms two vital rules in federal criminal practice. First, district courts may cure an untimely expert‐witness disclosure by granting a continuance when the defense suffers no prejudice, rather than excluding the testimony outright. Second, sentencing enhancements for distribution of child pornography under U.S.S.G. § 2G2.2(b)(3)(F) remain appropriate even if the defendant was acquitted of distribution counts, so long as the factfinder (court) concludes by a preponderance of the evidence that the defendant knowingly engaged in sharing illicit material. Together, these principles guide trial and sentencing courts in balancing fair notice, efficient case management, and the need to impose just punishment in child pornography prosecutions.