UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5126
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID A. HICKS,
Defendant – Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph R. Goodwin,
Chief District Judge. (2:05-cr-00040-1)
Submitted: December 11, 2008 Decided: January 20, 2009
Before MICHAEL and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
David O. Schles, LAW OFFICE OF DAVID SCHLES, Charleston, West
Virginia, for Appellant. Charles T. Miller, United States
Attorney, L. Anna Forbes, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David A. Hicks appeals his conviction after a jury
trial of two counts of production of child pornography, in
violation of 18 U.S.C. § 2251(b) (2006); receipt of child
pornography, in violation of 18 U.S.C. § 2252(a)(2) (2006); and
two counts of possession of child pornography, in violation of
18 U.S.C. § 2252(a)(4)(B) (2006). We affirm.
Hicks makes seven arguments on appeal: (1) the
evidence was insufficient to support his conviction for
production of child pornography; (2) the district court erred by
excluding evidence that someone other than Hicks placed
pornography on his computer; (3) the district court erred in
permitting the Government to introduce evidence of Hicks’s other
bad acts; (4) the district court erred in denying Hicks’s motion
to suppress evidence obtained from the search of his home
because the search warrant was issued without probable cause;
(5) the district court erred by limiting cross-examination of
child witnesses; (6) Hicks’s counsel was constitutionally
ineffective; and (7) the cumulative effect of errors at trial
deprived Hicks of a fair trial.
I. Sufficiency of the evidence
We affirm a conviction challenged for sufficiency of
the evidence if, viewing the evidence in the light most
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favorable to the Government, a rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt. Glasser v. United States, 315 U.S. 60, 80 (1942); United
States v. Burgos, 94 F.3d 849, 862-63 (4th Cir. 1996) (en banc).
A defendant challenging a conviction for sufficiency of the
evidence faces a heavy burden. United States v. Beidler, 110
F.3d 1064, 1067 (4th Cir. 1997). We “consider circumstantial as
well as direct evidence, and allow the [G]overnment the benefit
of all reasonable inferences from the facts proven to those
sought to be established.” United States v. Tresvant, 677 F.2d
1018, 1021 (4th Cir. 1982). In evaluating the sufficiency of
the evidence, we do not review the credibility of the witnesses
and assume that the jury resolved all contradictions in the
testimony in favor of the Government. United States v. Foster,
507 F.3d 233, 245 (4th Cir. 2007), cert. denied, 128 S. Ct. 1690
(2008).
In order to prove Hicks produced child pornography,
the Government must show: (1) Hicks knowingly permitted a minor
to engage in sexually explicit conduct for the purpose of
producing a visual depiction; (2) Hicks had custody or control
of the minor; and (3) the visual depiction was produced using
materials transported in interstate or foreign commerce. See 18
U.S.C. § 2251(b). Hicks does not dispute that the individual
depicted was under eighteen when the photographs were taken and
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was therefore a minor; he had custody and control over the
minor; the photographs depict the minor engaging in sexually
explicit conduct; and the camera used to take the pictures had
been transported in interstate or foreign commerce.
Accordingly, the only element at issue was whether Hicks
“knowingly permitted” the minor to engage in sexually explicit
conduct.
We have reviewed the record and find that sufficient
evidence supported the conclusion that Hicks knowingly permitted
the minor to engage in sexually explicit conduct for the purpose
of producing a visual depiction. The Government produced myriad
evidence that Hicks cultivated an environment where prepubescent
girls were encouraged to dance and pose in various states of
undress in front of cameras. The minor depicted in the
photographs at issue testified that, though she was unsure
whether the pictures were taken by Hicks or his daughter, Hicks
was present when the photographs were taken. Accordingly, a
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.
II. Exclusion of alternative perpetrator evidence
We review a district court’s decision to exclude
evidence for abuse of discretion. See United States v. Singh,
518 F.3d 236, 254 (4th Cir. 2008). Generally, criminal
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defendants have the right to introduce evidence before a jury
that might influence the determination of guilt. See Taylor v.
Illinois, 484 U.S. 400, 408 (1988). However, this right is not
unlimited, but is subject to certain restrictions. See United
States v. Scheffer, 523 U.S. 303, 308 (1998). For example, the
defendant is required to comply with state and federal rules of
procedure “designed to assure both fairness and reliability in
the ascertainment of guilt and innocence.” Chambers v.
Mississippi, 410 U.S. 284, 302 (1973). Evidentiary exclusions
will not be found to violate the Constitution “so long as they
are not arbitrary or disproportionate to the purposes they are
designed to serve.” Scheffer, 523 U.S. at 308 (internal
quotation marks and citation omitted).
Hicks sought to introduce evidence suggesting that it
was his estranged wife and her boyfriend who placed the child
pornography on Hicks’s computer. When determining whether
evidence of an alternative perpetrator should be admitted at
trial, other Courts of Appeals have found that such evidence “is
relevant, but there must be evidence that there is a connection
between the other perpetrators and the crime, not mere
speculation on the part of the defendant.” DiBenedetto v. Hall,
272 F.3d 1, 8 (1st Cir. 2001). See Wade v. Mantello, 333 F.3d
51, 60 (2d Cir. 2003) (finding that third-party animus did not
establish sufficient connection); United States v. Jordan, 485
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F.3d 1214, 1219 (10th Cir. 2007) (holding there must be a nexus
between crime charged and alleged alternative perpetrator). In
each of these cases, the courts balanced two evidentiary values:
the admission of relevant evidence probative of defendant’s
guilt or innocence with “the exclusion of prejudicial,
misleading, and confusing evidence.” Jordan, 485 F.3d at 1218.
Though the district court stated that it used a
combination of a balancing test and direct connection test, the
tests are merely different sides of the same coin. Requiring
the defendant to demonstrate a nexus between the crime charged
and the alleged alternative perpetrator mitigates jury confusion
and undue prejudice, two factors that must be balanced against
the introduction of relevant evidence. See Jordan, 485 F.3d at
1219. Here, the district court refused to allow the
introduction of alternative perpetrator evidence without the
prior establishment of a connection between such evidence and
the child pornography found on Hicks’s computer. Hicks was
unable to provide such a nexus. Accordingly, we find that the
district court did not abuse its discretion in excluding Hicks’s
alternative perpetrator evidence.
III. Admission of evidence of other bad acts
Hicks next argues that evidence regarding Hicks’s bad
character and collateral bad acts should have been excluded
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under Fed. R. Evid. 404(b) and Fed. R. Evid. 403. We review the
admission of evidence for abuse of discretion. See United
States v. Forrest, 429 F.3d 73, 79 (4th Cir. 2005).
Rule 404(b), which applies to acts extrinsic to the
crime charged, prohibits the admission of evidence of a person’s
prior conduct solely to prove a defendant’s bad character, or
conduct in conformity with defendant’s bad character. Such
evidence may be admissible for other purposes, such as “‘proof
of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.’” United States v.
Hodge, 354 F.3d 305, 311-12 (4th Cir. 2004) (quoting Fed. R.
Evid. 404(b)). For such evidence to be admissible under Rule
404(b), it must be “(1) relevant to an issue other than the
general character of the defendant; (2) necessary to prove an
element of the charged offense; and (3) reliable.” Id. at 312
(citing United States v. Queen, 132 F.3d 991, 997 (4th Cir.
1997)). Additionally, the probative value of the evidence must
not be substantially outweighed by unfair prejudice. Id.
(citing Fed. R. Evid. 403; Queen, 132 F.3d at 997). After
reviewing the record, we find that the challenged evidence falls
under the exception to Rule 404(b) and its probative value
outweighs any prejudicial effects.
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IV. Admission of evidence seized during a search of Hicks’s
home and computer
Hicks next argues that the district court erred in
denying his motion to suppress evidence seized during a search
of his home and computer. He contends that the search should
not have been authorized because the application and affidavit
did not establish probable cause that child pornography would be
found in Hicks’s home or computer.
Factual findings underlying a motion to suppress are
reviewed for clear error, while the legal determinations are
reviewed de novo. See United States v. Wilson, 484 F.3d 267,
280 (4th Cir. 2007) (citing Ornelas v. United States, 517 U.S.
690, 699 (1996)). When the district court denies a defendant’s
suppression motion, we review the evidence in the light most
favorable to the Government. See United States v. Uzenski, 434
F.3d 690, 704 (4th Cir. 2006). In reviewing the propriety of
issuing a search warrant, the relevant inquiry is whether, under
the totality of the circumstances, the issuing judge had a
substantial basis for concluding that there was probable cause
to issue the warrant. Illinois v. Gates, 462 U.S. 213, 238
(1983). The facts presented to the issuing judge need only
convince a person of reasonable caution that contraband or
evidence of a crime will be found at the place to be searched.
Texas v. Brown, 460 U.S. 730, 742 (1983). We afford great
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deference to a judge’s findings of probable cause. Gates, 462
U.S. at 236.
The lengthy affidavit presented to the magistrate
judge in support of the search warrant included statements made
by a minor that Hicks had taken nude photographs of her while
she was bathing, and that she had later observed these
photographs on his home computer. This assertion was
independently corroborated by another juvenile, who estimated
she had seen thirty photographs of the minor on Hicks’s
computer, and had actually seen Hicks take nude photographs of
the minor. Finally, Hicks’s wife, from whom he is legally
separated, informed the child protective services interviewer
that she had seen Hicks download child pornography on his
computer. We find this evidence to be more than sufficient to
“convince a person of reasonable caution” that child pornography
would be found on Hicks’s computer and in Hicks’s apartment.
Accordingly, the district court did not err in denying Hicks’s
motion to suppress.
V. Limitation of the cross-examination of the Government’s
child witnesses
Next, Hicks contends that the district court erred by
refusing to allow defense counsel to cross-examine two child
witnesses about past instances of molestation by perpetrators
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other than Hicks. We review a district court’s decision to
limit cross-examination for abuse of discretion. United States
v. Scheetz, 293 F.3d 175, 184 (4th Cir. 2002). The Sixth
Amendment’s Confrontation Clause guarantees the accused the
right to cross-examine witnesses. However, the Confrontation
Clause does not guarantee counsel the right to unfettered,
unlimited cross-examination, nor does it prevent a trial judge
from imposing reasonable limits on cross-examination based upon
concerns about harassment, prejudice, confusion of the issues,
witness safety, repetition, or relevance. Delaware v. Van
Arsdall, 475 U.S. 673, 679 (1986). Thus, “the Confrontation
Clause guarantees an opportunity for effective cross-
examination, not cross-examination that is effective in whatever
way, and to whatever extent, the defense might wish.” Delaware
v. Fensterer, 474 U.S. 15, 20 (1985)(per curiam)(emphasis in
original).
Here, it is clear from the record that the district
court judge did no more than impose a reasonable limit on the
cross-examination based upon legitimate concerns of potential
harassment of witnesses, confusion of issues, and relevance.
Accordingly, we find that such reasonable limitation did not
amount to an abuse of discretion.
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VI. Ineffective assistance of counsel
Hicks next argues that his trial counsel was
ineffective by promising to offer alternative perpetrator
evidence in his opening statement when he was unprepared to do
so during his case-in-chief. Claims of ineffective assistance
of counsel are generally not cognizable on direct appeal. See
United States v. King, 119 F.3d 290, 295 (4th Cir. 1997).
Rather, to allow for adequate development of the record, a
defendant must bring his claim in a 28 U.S.C. § 2255 motion.
See id.; United States v. Hoyle, 33 F.3d 415, 418 (4th Cir.
1994).
An exception to this general rule exists when the
record conclusively establishes ineffective assistance. United
States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999); King,
119 F.3d at 295. After reviewing the record, we find that it
does not conclusively establish Hicks’s counsel was ineffective
in promising evidence of third-party guilt to the jury when he
was unprepared to provide such evidence. Accordingly, Hicks’s
ineffective assistance claim is not cognizable on direct appeal.
VI. Cumulative error
Finally, Hicks contends that the aggregated impact of
trial errors denied him due process and a fair trial. In
support of this assertion, Hicks cites a Tenth Circuit case
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holding that errors harmless when viewed individually may merit
reversal when viewed collectively. See United States v. Rivera,
900 F.2d 1462, 1470 (10th Cir. 1990). We disagree with Hicks’s
contention. Rivera concerned the aggregation of actual
constitutional errors, “not the cumulative effect of all of
counsel’s actions deemed deficient.” Fisher v. Angelone, 163
F.3d 835, 852 n.9 (4th Cir. 1998). Here, Hicks fails to
establish any constitutional error on the part of his trial
counsel or the district court. As matters “that are not
unconstitutional individually cannot be added together to create
a constitutional violation[,]” id. at 853, we find that Hicks
fails to demonstrate a denial of his rights to due process or a
fair trial.
Accordingly, we affirm Hicks’s convictions. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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