Using Child‑Like Anatomical Sex Dolls as Rule 404(b) Evidence in Child Pornography Prosecutions: Commentary on United States v. Basilio Diaz (11th Cir. 2025)

I. Introduction

This commentary analyzes the Eleventh Circuit’s unpublished opinion in United States v. Basilio Jim Diaz, No. 24‑11484 (11th Cir. Dec. 22, 2025) (per curiam), affirming a conviction for accessing child pornography with intent to view, and for destruction of evidence. Although designated “NOT FOR PUBLICATION” and thus non‑precedential under Eleventh Circuit rules, the opinion is important as a practical indicator of how federal courts in the circuit are likely to treat a particular type of controversial evidence: child‑like or youth‑sized sex dolls and anatomical models.

The core issue on appeal was whether the district court abused its discretion by admitting two small “anatomical models” (originally described by the government as “sex dolls”) found in Diaz’s home. The government used these models to argue that Diaz had a sexual interest in children, and thus a motive to access child pornography, refuting his theory that malware or unknown actors were responsible for the illicit files on his devices.

The court affirmed the admission of this evidence under Federal Rule of Evidence 404(b)(2) (motive, intent, absence of mistake) and held that its probative value was not substantially outweighed by unfair prejudice under Rule 403. In doing so, it aligned the Eleventh Circuit with the Eighth Circuit’s approach in United States v. Bartunek, 969 F.3d 860 (8th Cir. 2020), and signaled a willingness to admit highly inflammatory but non‑illegal “sexual interest” evidence in child pornography prosecutions where the defendant advances a malware/accident defense.

II. Case Background

A. Investigation and Search

Law enforcement linked certain IP addresses associated with Diaz to:

“request[s] [for] blocks of files of suspected child pornography” on “the Freenet peer-to-peer program.”

On the strength of that information, officers obtained a warrant to search Diaz’s residence. They executed the warrant in the early morning of March 9, 2023. After “an almost one-hour standoff,” officers entered and arrested Diaz.

During the search, officers found multiple electronic devices:

• A computer in the process of a factory reset (found in a master bathroom closet).
• A laptop later shown to contain child pornography in unallocated space.
• A Seagate hard drive, found smashed in a bathroom trashcan, wrapped in toilet paper and covered in dried blood.
• A cell phone that had also been reset after law enforcement arrived.

Diaz had cuts and dried blood on his hands at the time of arrest, matching the blood‑stained destroyed drive. Forensic examination revealed that:

• Files with names indicative of child pornography had previously been stored on the Seagate drive but deleted.
• File paths indicated that a user account named “Jim Diaz” had accessed files with child‑pornographic filenames.
• Child pornography was present in the unallocated space on Diaz’s laptop.
• The FBI found no indication that Diaz’s devices had been remotely accessed.

B. Charges

Diaz was indicted for:

• Destruction of evidence, in violation of 18 U.S.C. § 1519; and
• Accessing child pornography with intent to view, in violation of 18 U.S.C. § 2252(a)(4)(B), (b)(2).

C. The Contested Evidence: “Sex Doll 1” and “Sex Doll 2”

During the search, officers also found two small anatomical models of the female pelvic and genital region, one notably smaller than the other. The government gave notice that it intended to introduce them as “Sex Doll 1” and “Sex Doll 2.” Diaz moved in limine to exclude:

“any evidence, testimony, or mention at trial of any ‘sex dolls’ or ‘child-like dolls.’”

At the final pretrial conference, the government characterized the models as relevant to Diaz’s “motivation” to look at child pornography, agreeing with the court’s suggestion that the models tended to show the owner was “more likely to” access child pornography with intent to view it. The prosecution stated bluntly that the evidence:

“prove[d] that the child pornography that was in the computer [was] [not] there just by accident or mistake. [Diaz] likes children.”

The district court recognized the evidentiary power of the items, calling them:

“bad … for the defense” and “strong … for the government, if … admissible.”

The court initially expressed concern that the evidence might be “so inflammatory” that its prejudice could substantially outweigh any probative value under Rule 403. It solicited additional case law from both sides, reserved final decision, and announced that if admitted, the items would only be described to the jury as “anatomical models,” leaving jurors to decide whether they appeared child‑like.

D. Trial Proceedings

On the first day of trial, the district court ruled that the anatomical models were admissible under Rule 404(b)(2), reasoning that, because “an issue for trial was whether what was found on Diaz’s devices belonged to him,” the models were relevant to motive and absence of mistake or accident.

Before the jury saw the models, the court gave a limiting instruction, emphasizing that the evidence could not be used to decide whether Diaz committed the acts in the indictment, but could be considered only to decide:

1. Whether Diaz had the required intent to knowingly access child pornography with intent to view it;
2. Whether he had a motive to commit that crime; or
3. Whether his access was by accident or mistake.

Officer Julio Tagliani testified that the models were found in a spare bedroom and that “one [model] is much smaller than the other.” Based on his experience in child‑exploitation investigations, he testified that such models are used “for sexual gratification.”

The government then presented extensive digital‑forensic evidence tying Diaz to the requested files, the deleted child pornography, and the damaged storage media, as well as the reset devices. The defense advanced a malware/Trojan‑horse theory through cross‑examination and expert testimony from a cyber security consultant, Andrew Spurlock, who testified that:

• There are documented cases in which Trojan horse malware has been used to deposit child pornography.
• Because there was no “definitive proof” that Diaz’s devices lacked malware, the contraband could not be definitively linked to any particular person.

At the close of evidence, the district court again instructed the jury on the limited permissible use of the anatomical models. In closing, the government argued that the smaller model was “child‑size,” used for “sexual gratification,” and showed Diaz’s sexual interest in minors, thereby undermining the idea that the images were on his devices “by accident.” Defense counsel countered that having an anatomical model or sex toy is not proof of knowingly accessing child pornography and reiterated that “we do not know anything about malware on any of [Diaz’s] devices.”

The jury convicted Diaz on both counts, and he received a sentence of 168 months’ imprisonment. On appeal, Diaz challenged only the admission and use of the anatomical models under Rules 404(b) and 403.

III. Summary of the Eleventh Circuit’s Opinion

The Eleventh Circuit (Judges Brasher, Abudu, and Kidd, per curiam, non‑argument calendar) affirmed the conviction, holding:

1. The district court did not abuse its discretion by admitting the anatomical models as Rule 404(b)(2) evidence for motive, intent, and absence of mistake or accident.
2. The Rule 403 balancing did not require exclusion; the items’ probative value was not substantially outweighed by unfair prejudice, particularly in light of limiting instructions.
3. Even if admission were erroneous, any error would be harmless given the “overwhelming evidence” of guilt independent of the models.

The court relied heavily on the Eighth Circuit’s decision in United States v. Bartunek, 969 F.3d 860 (8th Cir. 2020), which had approved admission of photographs of life‑sized child dolls as motive evidence under Rule 404(b) to rebut the theory that someone else used the defendant’s internet to download child pornography.

Applying the deferential abuse‑of‑discretion standard (citing United States v. Kapordelis, 569 F.3d 1291 (11th Cir. 2009), and United States v. Barton, 909 F.3d 1323 (11th Cir. 2018)), the panel found the district court’s reasoning fell well within the permissible range of evidentiary judgments.

IV. Analysis

A. Precedents and Authorities Cited

1. Rule 404(b) and Related Child Pornography Cases

• United States v. Bartunek, 969 F.3d 860 (8th Cir. 2020)
  

  The key external precedent. Bartunek involved photographs of four life‑sized child dolls in children’s underwear found in the defendant’s bedroom. The defense argued that someone else accessed his internet to download child pornography. The Eighth Circuit upheld admission of the doll photographs as non‑propensity 404(b) evidence, stating that:

  “The dolls were relevant to overcome the defense by showing [the defendant’s] motive for acquiring … child pornography.”

  and that deriving sexual gratification from child replicas gave the defendant “a motive to possess and distribute child pornography.”

  The Eleventh Circuit adopted this reasoning as “persuasive” in Diaz, noting the similar defense (malware/unknown actor) and similar kind of evidence (child‑like sexualized dolls or models).

• United States v. Morrow, 79 F.4th 1169 (10th Cir. 2023)
  

  Cited to reinforce that evidence of other child‑sexual interests can be used to rebut claims of accident, mistake, or outside causation. In Morrow, the Tenth Circuit held that evidence that the defendant downloaded child‑pornographic anime helped rebut his claim that the charged material appeared by accident or through the acts of third parties.

• United States v. Kapordelis, 569 F.3d 1291 (11th Cir. 2009)
  

  An Eleventh Circuit decision affirming admission of 404(b) evidence that the defendant traveled abroad to engage in sex acts with underage boys, to prove intent and absence of mistake regarding child pornography charges. Diaz’s panel cites Kapordelis for both the abuse‑of‑discretion standard and as an example of how sexual misconduct involving minors can be used under Rule 404(b) to show intent and lack of accident.

2. Standard of Review and Harmless Error

• United States v. Barton, 909 F.3d 1323 (11th Cir. 2018)
  

  The panel quotes Barton to emphasize that abuse‑of‑discretion review “recognizes the range of possible conclusions that a trial judge may reach and affords the district court considerable leeway in evidentiary rulings,” and that reversal is warranted only when the court “made a clear error of judgment or applied the wrong legal standard.” It also uses Barton for the harmless‑error principle: even if an evidentiary ruling is wrong, reversal is unwarranted where the error did not have a “substantial prejudicial effect.”

• United States v. Guzman, 167 F.3d 1350 (11th Cir. 1999)
  

  Cited for the “overwhelming evidence” formulation: where evidence of guilt is overwhelming, even significant evidentiary errors are likely to be considered harmless. The Diaz panel applies this reasoning to conclude that, even absent the anatomical models, the digital and circumstantial evidence was more than sufficient to sustain the verdict.

3. Rule 403 and Prejudicial Evidence

• United States v. Cenephat, 115 F.4th 1359 (11th Cir. 2024)
  

  Quoted to reaffirm that Rule 403 “imposes no requirement that the government choose the least prejudicial method of proving its case.” This is crucial in Diaz, where the defense essentially argued that the prosecution should have proved motive/identity with less inflammatory evidence than sexualized anatomical models.

• United States v. Smith, 459 F.3d 1276 (11th Cir. 2006)
  

  Smith states that the emotional charge of evidence inherent in certain crimes does not force the government to forego its “most probative evidence”; the fact that evidence is upsetting does not itself make it “unfairly prejudicial.” Diaz relies on this to justify admission of the models despite their potential to evoke disgust or moral condemnation.

• United States v. Lopez, 649 F.3d 1222 (11th Cir. 2011)
  

  Provides the oft‑quoted statement that Rule 403 is an “extraordinary remedy” and that the balance should be struck in favor of admissibility. Diaz deploys this to underscore that exclusion of probative evidence under Rule 403 is the exception, not the rule, especially when a limiting instruction is given.

4. Limiting Instructions and Jury Presumptions

• United States v. Hill, 643 F.3d 807 (11th Cir. 2011) and United States v. Ramirez, 426 F.3d 1344 (11th Cir. 2005)
  

  These cases are cited for the principle that juries are presumed to follow clear limiting instructions. In Ramirez, such limiting instructions were found to reduce the risk of undue prejudice. Diaz leans on this presumption to conclude that the jury used the anatomical‑model evidence only for the specified 404(b)(2) purposes rather than as pure propensity evidence.

5. Closing Argument and Prosecutorial Inference

• United States v. Eckhardt, 466 F.3d 938 (11th Cir. 2006)
  

  Cited as a contrast point: there are situations where prosecutorial argument can prejudice a defendant’s substantial rights. Diaz references Eckhardt but ultimately concludes that the prosecutor’s comments here were within permissible bounds.

• United States v. Reeves, 742 F.3d 487 (11th Cir. 2014)
  

  Quoted for the proposition that prosecutors may “state conclusions drawn from the trial evidence” in closing argument. The Diaz panel treats the prosecutor’s description of the model as “child‑size” and as used for sexual gratification as fair comment grounded in both the physical evidence (a photo showing the size relative to an adult hand) and Tagliani’s testimony.

B. The Court’s Legal Reasoning

1. The Rule 404(b) Question: Propensity vs. Motive and Absence of Mistake

Diaz argued that the anatomical models were irrelevant except as evidence of his sexual “character”: that he is sexually deviant and therefore more likely to have downloaded child pornography. That is exactly the type of inference that Rule 404(b)(1) forbids:

“Evidence of any crime, wrong, or act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.”

The Eleventh Circuit nonetheless affirmed admission by focusing on the permissible Rule 404(b)(2) purposes of “motive” and “absence of mistake or accident.” The key factual context is critical: Diaz’s defense was that malware or unknown third parties had placed the child pornography on his computer, and that he did not knowingly seek or view it. Once that defense is raised, the relevance of evidence showing that Diaz had a sexual interest in child‑like bodies becomes more than mere “character” evidence; it bears directly on:

• Whether he had motive to obtain and view child pornography; and
• Whether the presence of child pornography on his devices was truly the result of accident, mistake, or third‑party action, or instead intentional.

In other words, the presence of child‑like sex dolls makes the “malware did it” narrative factually less plausible. The opinion directly mirrors Bartunek’s logic: when the defense posits that someone else (or something else, like a virus) is responsible for the contraband, evidence that the defendant is sexually attracted to minors (even if only through lawful objects) helps the jury decide whether it was the defendant or an outsider who actually downloaded or accessed the material.

The panel explicitly notes:

“A key theory of his defense was that a malicious computer virus deposited the child pornography on his devices… The district court, therefore, reasonably concluded that the models were admissible to overcome this defense and to show not only that Diaz had a motive to view child pornography, but also that it was by no mistake or accident that the images and videos were found on his devices.”

From a doctrinal standpoint, this is a familiar but controversial move. On one level, the dolls are character evidence: they suggest Diaz is sexually interested in minors. On another, once alternative causation is in play, they become probative of motive and identity—who is most likely to have deliberately sought out the illegal images? The Eleventh Circuit effectively treats that shift in relevance as sufficient to move the dolls from the forbidden 404(b)(1) box to the 404(b)(2) permissible‑purpose box.

2. What Counts as an “Other Act” under Rule 404(b)?

Rule 404(b) speaks of “any other crime, wrong, or act.” The anatomical models are not themselves illegal. Nevertheless, federal courts have long treated lawful or ambiguous conduct—such as travel, adult pornography, or possession of sexual paraphernalia—as “acts” for 404(b) purposes. The Diaz panel follows that approach implicitly: Diaz’s possession and apparent use of the models is the “other act,” and the government offers it to show his motive and intent regarding the charged child‑pornography offense.

3. Rule 403 Balancing: Unfair Prejudice vs. Probative Value

Diaz’s alternative argument was that, even if the models served some permissible 404(b) purpose, their admission violated Rule 403 because their probative value was substantially outweighed by the danger of unfair prejudice. The Eleventh Circuit’s answer rests on several interlocking points:

1. Pro‑admissibility presumption. Citing Lopez, the court repeats that Rule 403 is an “extraordinary remedy” and that the balance should favor admissibility. This puts a thumb on the scale in favor of the government, especially when the evidence directly rebuts the defense theory.
2. No “least prejudicial means” requirement. Citing Cenephat and Smith, the court rejects the idea that the prosecution must select the least emotionally charged avenue of proof. In child pornography cases, almost all probative evidence is inherently disturbing; that fact alone does not make it unfairly prejudicial.
3. Efforts to neutralize the emotional impact. The district court took two notable steps:
   • It required both parties to refer to the items as “anatomical models,” not “sex dolls” or “child‑like dolls.”
   • It repeatedly gave limiting instructions, both at the time of admission and at the close of the case.
   These steps allowed the Eleventh Circuit to say the trial judge mitigated the risk that the jury would view the items as moral condemnation rather than probative evidence.
4. Limiting instructions and jury presumption. By invoking Hill and Ramirez, the panel relies on the doctrinal presumption that jurors heed limiting instructions, using the evidence only for intent/motive/absence‑of‑accident and not to conclude that Diaz is a bad person deserving punishment regardless of the specific charges.
5. Nature of the physical evidence. The court also notes that Diaz argued the models were “scaled‑down depictions of adult women,” i.e., not clearly child‑like. The judge left that factual inference to the jury, only allowing the prosecution to argue in closing that the smaller model was “child‑size” by comparing it to an adult hand in the photograph. Because these were inanimate objects, not images of real children, the court seemed less inclined to view them as overwhelmingly inflammatory.

On this basis, the panel concludes that the probative value—directly rebutting the malware defense, illuminating motive, and establishing lack of accident or mistake—was not “substantially outweighed” by unfair prejudice. That is a relatively permissive view of Rule 403 in an already emotionally charged context.

4. Closing Argument and “Child‑Size” Characterization

Diaz suggested that the prosecutor’s closing argument—calling the model “child‑size” and asserting Diaz “likes children”— crossed the line into pure propensity argument. The court drew a careful but prosecution‑friendly distinction:

• Prosecutors may draw “conclusions from the trial evidence” (Reeves), and Tagliani’s testimony plus the comparative photo supported calling the model “child‑size.”
• The argument that Diaz “likes children,” though rhetorically potent, was tied to the elements the jury needed to decide: whether he knowingly accessed child pornography and whether this was no accident or malware glitch.

Thus, the panel saw the closing as an attempt to help the jury “analyz[e] the evidence,” not as independent misconduct requiring reversal (cf. Eckhardt). It is an example of appellate courts tolerating strong rhetoric so long as it is reasonably tethered to admitted evidence and the issues for decision.

5. Harmless Error: The “Overwhelming Evidence” Backstop

Finally, even if one assumed arguendo that admitting the models was an abuse of discretion, the court held any such error would be harmless. The opinion emphasizes the independent strength of the government’s case:

• IP address logs showing someone using Diaz’s IP requested suspected child pornography.
• Diaz lived alone, and no evidence indicated that anyone else used his devices.
• Diaz refused to leave his home for nearly an hour during execution of the warrant.
• Multiple devices were reset or destroyed after law enforcement activity commenced, including a smashed Seagate drive wrapped in blood‑covered toilet paper, with Diaz having cuts and dried blood on his hands.
• Digital forensics traced child‑pornographic file names to a user account called “Jim Diaz.”
• No evidence of remote access or malware manipulation was found by the FBI.

Given this evidence, the panel invoked Guzman and Barton to conclude the anatomical models did not have a “substantial prejudicial effect” on the verdict. This underscores a procedural reality: strong government cases make appellate reversal on evidentiary grounds highly unlikely, even where the contested evidence is controversial.

C. Impact and Practical Significance

1. Status as Unpublished Opinion

The opinion is explicitly labeled “NOT FOR PUBLICATION.” Under Eleventh Circuit rules, unpublished opinions are not binding precedent, though they may be cited as persuasive authority. That matters doctrinally. However, in practice, such decisions still strongly indicate how panels are likely to approach similar issues, especially when they align with other circuits’ published decisions (here, Bartunek in the Eighth Circuit and Morrow in the Tenth).

2. Evidentiary Strategy in Child Pornography Cases

Diaz is significant because it reinforces a pattern emerging in federal child pornography jurisprudence:

• Evidence of a defendant’s sexual interest in minors—even when lawful (e.g., child‑like dolls, anime, adult pornography featuring youthful‑looking actors)—is admissible under Rule 404(b)(2) to show motive, intent, and absence of mistake, particularly when the defendant argues malware, accidental download, or third‑party involvement.
• Rule 403 challenges to such evidence will face an uphill battle, especially if the trial court uses neutral terminology and gives limiting instructions.

For prosecutors in the Eleventh Circuit (Florida, Georgia, Alabama), Diaz will encourage:

• Careful documentation and seizure of any physical objects (dolls, sex toys, artwork, comics, etc.) that might suggest sexual interest in minors.
• Early Rule 404(b) notices framing such items explicitly as motive/intent/absence‑of‑mistake evidence to rebut potential malware or “someone else did it” defenses.
• Requests for limiting instructions tailored to 404(b)(2) purposes to diminish 403 challenges on appeal.

For defense counsel, Diaz:

• Highlights the risks of raising malware/third‑party defenses without strong forensic support; such defenses can “open the door” to highly prejudicial sexual interest evidence that might otherwise be easier to exclude.
• Signals the need for expert testimony not only on digital forensics but also on the meaning of sex dolls/anatomical models (e.g., that some are scaled to adult proportions, that they are part of broader adult fetish markets, etc.), in order to challenge the inference that they are inherently “child‑like.”
• Suggests the importance of pre‑trial efforts to narrow or sanitize descriptive language (as Diaz’s counsel partially achieved by having the items described only as “anatomical models”).

3. Substantive Concerns: Motive vs. Propensity

Diaz also illustrates a recurring conceptual tension in Rule 404(b) jurisprudence: when does “motive/intent” evidence simply become a relabeled form of propensity evidence?

Here, the argumentative chain is:

1. Diaz owns small anatomical models that (the government alleges) resemble child‑sized bodies and are used sexually.
2. This suggests he is sexually attracted to minors (or, at least, to child‑like bodies).
3. Someone who is sexually attracted to minors has a motive to access child pornography and is less likely to be a victim of random malware.

Steps (1) and (2) are classic character inferences; step (3) then uses that character to infer conduct in conformity with it. The court treats the malware theory as the crucial hinge: once the defense makes the source of the files a live issue, evidence of sexual interest in children becomes relevant to “who did it” and whether it was accidental. This is doctrinally accepted, but from a policy perspective it edges close to the character‑propensity line that 404(b)(1) is meant to police.

Absent a malware defense, admission might well be more vulnerable, because the connection between the dolls and any element of the crime (intent, knowledge, identity) would be more attenuated and more easily characterized as pure propensity. Diaz thus encourages a careful litigation strategy: defendants should consider how much an alternative‑perpetrator theory is worth if it opens the evidentiary door to damaging 404(b) material.

4. Rule 403 in Sex‑Offense Litigation

Diaz reinforces a now‑familiar pattern: in federal child‑exploitation and sex‑offense cases, Rule 403 is interpreted very narrowly. The court explicitly emphasizes:

• The absence of any requirement that the government avoid its most powerful evidence.
• The extraordinary nature of Rule 403 exclusion.
• The curative effect of limiting instructions.

For future litigants, this means that successfully excluding inflammatory but probative sexual‑interest evidence on Rule 403 grounds in the Eleventh Circuit will be difficult. Defense counsel must be prepared not only to argue 403 but to create a record for appeal showing:

• Marginal probative value (e.g., where the connection to intent or identity is speculative or cumulative of other proof); and
• Specific, articulable reasons why the evidence risks misleading the jury or causing them to punish for uncharged, lawful but repugnant behavior.

V. Complex Concepts Simplified

1. Rule 404(b): Character Evidence vs. Other Acts

Rule 404(b) is meant to stop “once a bad person, always a bad person” reasoning. It distinguishes between:

• Forbidden use (404(b)(1)): “He’s the kind of person who likes child‑like sex dolls, so he’s the kind of person who would download child pornography, therefore he probably did it.”
• Permitted uses (404(b)(2)): Using other acts to show things like motive, intent, knowledge, identity, or absence of mistake—when those are genuinely at issue. For example, if the defendant says “I never intended to access child pornography; it was all malware,” evidence that he has a pre‑existing sexual interest in minors may make that explanation less credible because it provides a motive to seek out such material.

The same evidence (child‑like dolls) can be improper in one context (pure propensity) and proper in another (when intent, identity, or mistake is contested). The court’s job is to ensure the evidence is tightly linked to a permissive purpose and not being used simply to show bad character.

2. Rule 403: Unfair Prejudice vs. Damaging Evidence

Rule 403 doesn’t exclude evidence just because it hurts the defendant’s case. Almost all prosecution evidence is damaging. Instead, it excludes evidence that is likely to lead the jury to decide on an improper basis—such as emotion, shock, or moral outrage—rather than reasoned consideration of the legal elements.

Evidence is unfairly prejudicial when it:

• Invites the jury to punish for conduct not charged;
• Creates a risk the jury will be unable or unwilling to follow legal instructions; or
• Makes the jury decide based on visceral reaction instead of the elements and proof.

In Diaz, the anatomical models were undoubtedly prejudicial in the everyday sense—they made Diaz look deviant. But the court held that their prejudicial effect was not “unfair” in the 403 sense, because:

• They were strongly probative of disputed issues (motive, identity, mistake/accident);
• The court used neutral language (“anatomical models”) and gave limiting instructions; and
• The jury still had to decide, in light of all evidence, whether Diaz knowingly accessed child pornography.

3. Abuse of Discretion and Harmless Error

An abuse of discretion standard is highly deferential. The appellate court does not ask: “Would we have made the same evidentiary ruling?” It asks:

• Did the district court apply the correct legal rule?
• Was its balancing decision within a reasonable range of outcomes, or so off‑base as to be a “clear error of judgment”?

Even if the appellate court finds an abuse of discretion, it must still consider harmless error: did the error actually affect the verdict? If the untainted evidence was overwhelmingly sufficient to convict, and there is no serious doubt that the jury would have reached the same result, the conviction will usually be affirmed. Diaz relies heavily on this doctrine: the panel repeatedly notes how strong the digital and circumstantial case was independent of the anatomical models.

4. Digital Forensics and the Malware Defense

A few technical terms briefly explained:

• Freenet peer‑to‑peer program: An anonymizing file‑sharing network that has been used to distribute child pornography, among other things.
• Factory reset: Restoring a device to its original factory settings, which deletes user data and can be used in an attempt to destroy evidence.
• Unallocated space: Portions of a storage device that are not currently assigned to a file, but may still contain recoverable remnants of deleted data (including images or videos).
• Trojan horse / malware: Malicious software that can control or use a computer without the owner’s knowledge. In child‑pornography cases, defendants sometimes argue that Trojans placed illegal images on their devices without their awareness.

The malware defense is legitimate in theory but often difficult to prove. In Diaz, the FBI forensics indicated no remote access or obvious malware. Diaz’s expert could only say that, because there was no definitive proof of absence of malware, one couldn’t be certain who actually accessed the files. The anatomical models thus served to undercut the plausibility of that uncertainty by suggesting a personal motive.

VI. Conclusion

United States v. Basilio Diaz, though unpublished, is a consequential decision at the intersection of evidence law and child‑pornography prosecutions. The Eleventh Circuit’s key takeaways are:

1. Child‑like sex dolls and anatomical models can be admitted as Rule 404(b)(2) evidence to show motive, intent, and absence of mistake/accident when a defendant raises a malware or third‑party‑perpetrator defense. The court joins other circuits in treating such items not merely as character evidence but as probative of who is more likely to have downloaded or accessed illicit material.
2. Rule 403 challenges to this kind of evidence are unlikely to succeed where:
   • the evidence directly rebuts a central defense theory,
   • the trial court uses neutral terminology and gives explicit limiting instructions, and
   • the rest of the government’s case is strong.
3. The malware defense is a double‑edged sword. While it may offer an alternative explanation for illicit files, it also opens the door to broader 404(b) sexual‑interest evidence that could otherwise be excluded or limited.
4. Appellate deference and harmless error remain powerful barriers to reversal. Even controversial evidentiary rulings will be upheld where the district court articulated a permissible rationale and the record contains overwhelming independent evidence of guilt.

From a broader perspective, Diaz underscores a systemic tendency in federal courts to admit evidence suggesting sexual interest in minors—even when that evidence is itself lawful and highly stigmatizing—so long as it can be linked to a non‑propensity purpose under Rule 404(b)(2) and survives a relatively forgiving Rule 403 analysis. Lawyers litigating child‑exploitation cases in the Eleventh Circuit should assume that child‑like dolls, anatomical models, or analogous physical items will be admissible when the defendant’s knowledge, intent, or control over the device is contested, and they should structure their trial strategies accordingly.