United States v. Tony McLeod

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 6 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 16-50013

Plaintiff-Appellee, D.C. No.
3:13-cr-02297-JLS-1
v. Southern District of California,
San Diego
TONY LEE MCLEOD, AKA Tony,
ORDER*
Defendant-Appellant.

Before: BEA and MURGUIA, Circuit Judges, and MOLLOY, ** District Judge.

The memorandum disposition filed on August 28, 2018, is amended as set

out in the attached Amended Memorandum Disposition.

With that amendment, the majority of the panel has voted to deny the

petition for panel rehearing. Judge Murguia and Judge Bea voted to deny the

petition for rehearing en banc, and Judge Molloy has recommended denial. The

full court was advised of the petition for rehearing en banc and no judge has

requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

*
This order is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.
 The petition for rehearing and rehearing en banc is therefore DENIED (Doc.

59).

No further petitions for rehearing will be accepted in this case.

2
 NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 6 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-50013

Plaintiff-Appellee, D.C. No.
3:13-cr-02297-JLS-1
v.

TONY LEE MCLEOD, AKA Tony, AMENDED MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding

Argued and Submitted April 11, 2018
Pasadena, California

Before: BEA and MURGUIA, Circuit Judges, and MOLLOY,** District Judge.

Tony Lee McLeod was convicted by a jury of nine counts of persuading or

attempting to persuade a minor to engage in sexually explicit conduct for the

purpose of producing an image of that conduct, 18 U.S.C. § 2251(a), (e), one count

of traveling with the intent to engage in illicit sexual conduct, 18 U.S.C. §2423(b),

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.
and one count of transportation of a minor with the purpose of engaging in illicit

sexual conduct, 18 U.S.C. § 2423(a). McLeod appeals his conviction, alleging the

district court abused its discretion by: (1) failing to make a reliability finding on

purported expert testimony concerning information obtained from a cell phone

through a Cellebrite device, which he claims is required by Federal Rule of

Evidence 702; (2) admitting testimony from one of the victims about physical

contact between McLeod and the victim, over McLeod’s objection based on Rule

403; and (3) failing to sever the § 2251 production counts from the § 2423 travel

and transport counts. McLeod also asserts that § 2251 is unconstitutional as applied

to him.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the district

court’s evidentiary rulings and denial of McLeod’s motion to sever for abuse of

discretion. See Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 460 (9th Cir.

2014) (en banc); United States v. Beck, 418 F.3d 1008, 1013 n.3 (9th Cir. 2005);

United States v. Leon-Reyes, 177 F.3d 816, 821 (9th Cir. 1999); United States v.

Mayfield, 189 F.3d 895, 899 (9th Cir. 1999). We review de novo his constitutional

challenge to § 2251. See United States v. Purdy, 264 F.3d 809, 811 (9th Cir. 2001).

We affirm.

1. McLeod argues the district court abused its discretion when it

admitted Detective Damian Jackson’s testimony at trial without making a

2
reliability finding under Rule 702. Rule 702 governs the admission of expert

testimony and requires that proposed expert testimony be reliable. Further, under

Rule 702, where the testimony’s “factual basis, data, principles, methods, or [its]

application” is called into question, a trial judge must make a reliability

determination. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 149 (1999)

(quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993)).

It appears that the district court overruled McLeod’s objections to Detective

Jackson’s testimony because the district court found that Detective Jackson had the

experience and knowledge to present the contested documents, and nothing in his

testimony required the district court to make additional findings about the

testimony’s reliability. See id. At trial, Detective Jackson testified about how he

used a Cellebrite device during the course of his investigation to download

information from one of the victim’s cell phones onto a thumb drive and then

testified about the contents of that information. He testified about what Cellebrite

does and how he used it in the course of his investigation to extract information

from the victim’s cell phone. His investigation and Cellebrite use yielded readable

text of the downloaded data, a link to images downloaded from the victim’s cell

phone, and “extraction reports.” Detective Jackson also testified that he could

select what data to extract from the phone through Cellebrite. In short, Detective

Jackson testified about his use and interaction with Cellebrite—and how he

3
extracted data from one of the victim’s phones in this case. We have previously

allowed testimony similar to Detective Jackson’s testimony without requiring that

the testimony meet Rule 702’s expert testimony requirements. See United States v.

Seugasala, 702 F. App’x 572, 575 (9th Cir. 2017) (“The officers who followed the

software prompts from Cellebrite and XRY to obtain data from electronic devices

did not present testimony that was based on technical or specialized knowledge

that would require expert testimony.”).1

Nevertheless, the dissent asserts that Detective Jackson provided expert

testimony subject to Rule 702. The dissent believes the district court erred by not

making a reliability finding regarding Detective Jackson’s testimony and accepting

the information obtained through Cellebrite. However, even assuming that the

district court erred in admitting Detective Jackson’s testimony, the error was

harmless. See United States v. Spangler, 810 F.3d 702, 708 (9th Cir. 2016)

(holding that even assuming that the district court’s decision to bar expert

testimony was error, such error was harmless); Estate of Barabin, 740 F.3d at 464

(citing United States v. Rahm, 993 F.2d 1405, 1415 (9th Cir. 1993) (explaining that

this court reviews improperly admitted expert testimony for harmless error). The

record reflects that testimony from one of the victims and from one of the victim’s

1
That the Seugasala court reviewed for plain error is a distinction that does not
change the fact that our court has previously allowed testimony similar to
Detective Jackson’s testimony.

4
aunts—in addition to testimony from Sarah Kranz, a computer forensics expert

whose qualifications McLeod does not contest—independently supported the

reliability of the information in the Cellebrite report. Therefore, assuming

Detective Jackson’s testimony about the Cellebrite report was admitted in error,

the error was harmless because McLeod’s conviction was not ultimately

attributable to that error.

In sum, the district court did not abuse its discretion in admitting Detective

Jackson’s testimony. See Harper v. City of Los Angeles, 533 F.3d 1010, 1030 (9th

Cir. 2008) (“We afford broad discretion to a district court’s evidentiary rulings.”);

see also Kumho Tire, 526 U.S. at 149. And even if the district court erred, such

error was harmless. See Estate of Barabin, 740 F.3d at 464.

2. The district court also did not abuse its discretion in admitting

testimony from one of the victims concerning touching between the victim and

McLeod in the car on the way to the Los Angeles International Airport and on the

flight to Florida. The parties agree that the disputed testimony was probative of the

transport and travel counts, but the testimony had low probative value as to the

production counts. See United States v. Gonzalez-Flores, 418 F.3d 1093, 1098 (9th

Cir. 2005) (explaining that the trial court should weigh the prejudicial effect of

certain evidence against its probative value). McLeod points to no authority

holding that evidence must be probative as to all charges against a defendant to be

5
admissible under Rule 403, which permits a district court to “exclude relevant

evidence if its probative value is substantially outweighed by,” among other things,

unfair prejudice. See United States v. Jayavarman, 871 F.3d 1050, 1063 (9th Cir.

2017) (quoting Fed. R. Evid. 403).

McLeod argues that the district court erred by admitting the victim’s

testimony regarding the touching because it was not probative of the production

counts, irrelevant to the production count related to the other victim, and its

graphic nature was highly prejudicial. However, McLeod points to no authority

holding that testimony must be probative of all charges.2

Moreover, the contested testimony was not unduly prejudicial. Given all the

charges against McLeod, and the sexually explicit and graphic nature of the other

evidence presented at trial that was probative of the production charges, the district

court permissibly concluded that in this context, admitting the victim’s testimony

was not extraordinarily inflammatory. Jayavarman, 871 F.3d at 1063–64 (holding

that the district court did not err under Rule 403 where it admitted audio recordings

of the defendant’s statements that he had sex with the victim when she was thirteen

or fourteen years old because the probative value of the evidence was very high

and that “value was not substantially outweighed by any risk of unfair prejudice

that might have arisen from the evidence, especially in the context of other

2
The dissent makes similar arguments as McLeod on this issue.

6
evidence adduced at trial”); United States v. Higuera-Llamos, 574 F.3d 1206, 1209

(9th Cir. 2009) (“The district court is to be given ‘wide latitude’ when it balances

the prejudicial effect of proffered evidence against its probative value.”) (citation

omitted). Although courts must take care to prevent emotionally charged evidence

that may lead to a decision on an improper basis, see Gonzalez-Flores, 418 F.3d at

1098, we review a district court’s decision to admit or exclude evidence with great

deference, see United States v. Hinkson, 585 F.3d 1247, 1267 (9th Cir. 2009). The

dissent reweighs the testimony’s prejudicial value without considering the

deference we afford district courts. On this record, it was not an abuse of discretion

for the district court to admit the contested testimony.

3. Assuming McLeod did not waive his motion to sever the transport and

travel counts from the production counts by failing to renew the motion at the close

of evidence, McLeod bears the burden of proving the undue prejudice he suffered

from the joint trial. See United States v. Vasquez-Velasco, 15 F.3d 833, 845 (9th

Cir. 1994). Federal Rule of Criminal Procedure 14 “sets a high standard for a

showing of prejudice.” Id. McLeod argues that because the contested victim

testimony had no bearing on the production charges, only on the travel and

transportation count, its admission prevented him from receiving a fair trial. The

dissent argues substantially the same thing as McLeod. However, as discussed

above, the district court did not err in admitting the victim’s testimony regarding

7
touching between the victim and McLeod.

Moreover, we have previously held that district courts do not abuse their

discretion by denying motions to sever in cases that involve potentially

inflammatory evidence. See Vasquez-Velasco, 15 F.3d at 846–47 (holding that the

district court did not abuse its discretion in denying defendant’s motion to sever

where the defendant did not “present[] any reasons, other than the emotionally-

charged nature of [one of the] murder[s], as to why the jury would be unable to

consider separately the evidence that applies to the two pairs of murders.”); United

States v. Smith, 795 F.2d 841, 850–51 (9th Cir. 1986) (holding that the district

court did not abuse its discretion in refusing to sever a felon in possession of a

firearm charge from child pornography counts under Federal Rule of Criminal

Procedure 14 where defendant argued evidence of the gun would “inflame[] an

already emotionally charged trial and invited the jury to infer that Smith would

have used the gun to threaten or kill the children if they had refused to allow him to

take their pictures”).

Here, McLeod’s charges all arose from related conduct concerning his

communication with the victims and the subsequent enticement of one of the

victims to leave with McLeod for Florida with the intention of engaging in illicit

sexual conduct. Indeed, McLeod’s underlying conduct as to all charges was

sufficiently related such that the nature of the evidence, within the context of this

8
case, was not unduly inflammatory. See Jayavarman, 871 F.3d at 1063–64.

Further, for the reasons discussed above, trying all counts in the same trial

“was not so manifestly prejudicial that it outweigh[ed] the dominant concern with

judicial economy and compel[led] the exercise of the court’s discretion to sever.”

United States v. Lopez, 477 F.3d 1110, 1116 (9th Cir. 2007) (internal quotation

marks and citation omitted) (alterations in original). Accordingly, McLeod has not

met his burden of proving that he was prejudiced from the joint trial. See Vasquez-

Velasco, 15 F.3d at 845.

4. Finally, McLeod argues that his due process rights were violated

when he was convicted under 18 U.S.C. § 2251(a) without requiring proof that he

knew the victims were underage. McLeod’s constitutional challenge is precluded

by United States v. U.S. Dist. Court for Cent. Dist. of Cal., L.A., 858 F.2d 534, 538

(9th Cir. 1988) (holding that “knowledge of the minor’s age is not necessary for

conviction under section 2251(a).”).

Accordingly, the district court did not commit any reversible error on any

issue on appeal, and we affirm.

AFFIRMED.

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 FILED
FEB 6 2019
United States v. Tony Lee McLeod, AKA Tony, No. 16-50013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MOLLOY, District Judge for the District of Montana, dissenting in part and

concurring in part:

I respectfully disagree with the majority reasoning and rulings in this case.

1. The district court abused its discretion when it admitted Detective

Jackson’s expert testimony without making a reliability finding, and the error

prejudiced McLeod.

First, Jackson provided expert testimony. See Fed. R. Evid. 702(a). Jackson

testified based on technical knowledge—specifically, technical knowledge about

the use of the Cellebrite device. Jackson testified as to what the Cellebrite device

is, what it does, how it works, and what it produces. Jackson also testified he

performed a “logical extraction” on the Blackberry, and explained the resulting

report to the jurors at length.

The majority cites to United States v. Seugasala for the proposition that

testimony by an officer who uses Cellebrite to extract the contents of a cellular

device is not expert testimony. 702 F. App’x 572, 575 (9th Cir. 2017). But

Seugasala, a non-binding memorandum opinion, involved plain error review, not

abuse of discretion. Moreover, simply because the user can follow prompts from

the program does not mean that expert testimony is not required or that the

underlying technology is reliable. In the context of this case, McLeod presented
evidence that the Cellebrite device Jackson used can produce significant errors,

including not acquiring files and misreporting data.

Even if Jackson only provided lay testimony, as the majority found, he

nevertheless received the court’s expert imprimatur in front of the jury. See

Barefoot v. Estelle, 463 U.S. 880, 926–27 (1983), superseded by statute on other

grounds, Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104–

132, 110 Stat. 1214 (1996), as recognized in Slack v. McDaniel, 529 U.S. 473

(2000) (“Where the public holds an exaggerated opinion of the accuracy of

scientific testimony, the prejudice is likely to be indelible.”). The district court

stated that, based on Jackson’s experience, he was “more than qualified” to testify

about the Cellebrite report. When McLeod objected to further introduction of the

Cellebrite report into evidence, the district court stated Jackson “[had] . . . the

experience and the knowledge to present the[] documents.” Later, the district court

overruled McLeod’s relevance objection as the government questioned Jackson

about his continued use of Cellebrite in the years following the extraction at issue

in this case. In other words, the district court first endorsed Jackson as an expert,

and then permitted the government to bolster Jackson’s credentials in front of the

jury.

Second, the district court made no reliability finding before admitting

Jackson’s testimony and the Cellebrite report. “[T]he failure to make an explicit

2
reliability finding [i]s error,” even where “the district court’s ruling suggests an

implicit finding of reliability.” United States v. Jawara, 474 F.3d 565, 583 (9th

Cir. 2007) (citation omitted).

While erroneous admission of expert testimony is harmless where the record

shows the witness was reliable and qualified, see United States v. Figueroa-Lopez,

125 F.3d 1241, 1247 (9th Cir. 1997), the record here casts doubt on Jackson’s

qualifications. Although Jackson testified he holds multiple computer forensic

certifications, none of them pertained to Cellebrite, and they all post-dated his

work with the victim’s Blackberry. He was not certified by Cellebrite to perform

extractions, seemed unsure about the types of Cellebrite extractions that could be

performed, and did not know when the device he used was last updated. Jackson’s

lack of certification is particularly troubling given that, as McLeod notes,

Cellebrite itself “strongly encourages all users to attend certification training in

order to best understand—and explain—how to extract, decode, analyze and

document mobile device evidence using these advanced methodologies.” In short,

Jackson’s testimony did not demonstrate reliable scientific or technical principles

reliably applied. See Fed. R. Evid. 702.

Third, Jackson’s report and testimony prejudiced McLeod. Where evidence

has been improperly admitted, this Court must “consider whether the error was

harmless.” Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 464 (9th Cir.

3
2014) (quotation and citation omitted). Prejudice is presumed, and the burden is

on the benefitting party to show “that it is more probable than not that the jury

would have reached the same verdict even if the evidence had not been admitted.”

Id. at 464–65 (quotation and citation omitted). “Prejudice is at its apex when the

district court erroneously admits evidence that is critical to the proponent’s case.”

Id. at 465.

Jackson’s testimony and the Cellebrite report were critical to the

government’s case. The government relied on the report to establish which

messages were sent and received, as well as the time of each message. The timing

of the messages rebutted McLeod’s claim that he did not know the victim was a

teenager when the images were produced. The government also used the

Cellebrite report to create demonstrative exhibits showing a “more readable”

format that was “closer to the way [the messages] would have looked on the

[Blackberry] device when the individual was holding it.” The government relied

on that report in closing.

In sum, the district court erred when it allowed Detective Jackson to provide

expert testimony without making a reliability finding and accepted the Cellebrite

report he prepared. That error was not harmless because it involved evidence

critical to the government’s case, prejudicing McLeod. Reversal and a new trial is

appropriate for this reason and for the additional reasons set forth below.

4
 2. The district court abused its discretion when it admitted the victim’s

testimony that McLeod molested him. While that testimony is relevant to

McLeod’s intent regarding the travel and transportation counts, United States v.

Dhingra, 371 F.3d 557, 565 (9th Cir. 2004), it had limited, if any, relevance to the

production counts, and its probative value was substantially outweighed by its

prejudicial effect, Fed. R. Evid. 403.

Relevant evidence may be excluded “if its probative value is substantially

outweighed by a danger of . . . unfair prejudice.” Id. “The probative value of

evidence against a defendant is low where the evidence does not go to an element

of the charge.” United States v. Gonzalez-Flores, 418 F.3d 1093, 1098 (9th Cir.

2005). In this case the proper balance of fairness and “judicial economy” should

tip to the defendant’s right to a fair trial.

McLeod faced nine counts of persuading, or attempting to persuade, a minor

to engage in sexually explicit conduct for the purpose of producing a visual

depiction of the conduct, in violation of 18 U.S.C. § 2251; one count of traveling

for the purpose of engaging in illicit sexual conduct with a minor, in violation of

18 U.S.C. § 2423(b); and one count of transporting a minor with the intent of

engaging in criminal sexual activity, in violation of 18 U.S.C. § 2423(a). Of these

eleven charges, the touching testimony was probative of only two—the travel and

transportation counts—because those required the government to prove McLeod

5
had the intent to engage in illicit sexual conduct. See Dhingra, 371 F.3d at 565

(where intent was a “key element” of the charge—coercion of a minor in violation

of 18 U.S.C. § 2422—testimony that defendant fondled victim was not unduly

prejudicial, even though sexual contact was not an element of the offense).

Morever, “what counts as the Rule 403 ‘probative value’ of an item of evidence, as

distinct from its Rule 401 ‘relevance,’ may be calculated by comparing evidentiary

alternatives.” Old Chief v. United States, 519 U.S. 172, 184 (1997). In this case,

the text messages provided alternative evidence of McLeod’s intent, further

diminishing the probative value of the touching testimony even as to those two

counts. See id.

On the other hand, the testimony was not probative of any of the elements

the government had to prove for the production counts, which were that (1) the

victims were minors, (2) McLeod persuaded (or attempted to persuade) them to

take part in sexually explicit conduct for the purpose of producing a visual

depiction, and (3) the visual depictions were transported in or affecting interstate or

foreign commerce by any means, including by computer. 18 U.S.C. § 2251(a).

Sexual contact between the defendant and the victim is not an element, as the

government conceded in its pretrial brief opposing severance. The district court

reasoned that the testimony “would be relevant to rebut a defense that the

defendant did not know that the victim was a minor” because “the subsequent acts

6
tend[ed] to rebut the inference raised by such a defense that the defendant would

not have committed the acts had he known the minor’s age.” But the victim

testified before McLeod presented his case, which forced McLeod into rebuttal

regardless. The same forced hand ruling took place in a pretrial exchange between

the court and defense counsel. Further, one of the production counts involved a

different victim than the one who testified about the physical contact, meaning not

only that the touching testimony was not probative of that count, but was not even

relevant.

McLeod suffered unfair prejudice because of the touching testimony. “The

term ‘unfair prejudice,’ as to a criminal defendant, speaks to the capacity of some

concededly relevant evidence to lure the factfinder into declaring guilt on a ground

different from proof specific to the offense charged.” Old Chief, 519 U.S. at 180.

“In other words, unfairly prejudicial evidence is that having ‘an undue tendency to

suggest decision on an improper basis, commonly, though not necessarily, an

emotional one.’” Gonzalez-Flores, 418 F.3d at 1098 (quoting Old Chief, 519 U.S.

at 180). “Where the evidence is of very slight (if any) probative value, it’s an

abuse of discretion to admit it if there’s even a modest likelihood of unfair

prejudice or a small risk of misleading the jury.” Id. (quotation and citation

omitted). A fair trial cannot be dependent on a “guilty anyway” assessment of the

evidence or the joinder of charges.

7
 The graphic testimony about uncharged conduct was highly prejudicial.

Because it described sexual physical contact between the victim and McLeod, it

differed in kind from the texting, photo, and video evidence otherwise presented.

As to the production charges, then, the testimony was evidence “lur[ing] the

factfinder into declaring guilt on a ground different from proof specific to the

offense charged.” Old Chief, 519 U.S. at 180. Finally, while the testimony itself

occupied little trial time, it required significant rebuttal—seven witnesses,

including three flight attendants, two passengers, an FBI agent, and a forensic

biologist. Had the counts been tried separately, the defendant may have prevailed

in his defense. Tried together, the defense to the touching was rendered

meaningless by virtue of the nature of the crimes and the reality of propensity

proof.

The district court erred by admitting the touching testimony because it was

not probative of the production counts and presented an unacceptably high risk of

prejudice. Reversal for a new trial on this ground is appropriate.

3. The district court’s failure to sever the travel and transportation counts

from the production counts after it decided to admit the touching testimony

abridged McLeod’s right to a fair trial. United States v. Lewis, 787 F.2d 1318,

1321 (9th Cir. 1986), amended on denial of reh’g, 798 F.2d 1250 (9th Cir. 1986).

First, while McLeod failed to renew his motion to sever, he briefed and

8
argued it pretrial and also argued the touching testimony warranted severance in

his motion for a new trial. Further, severance was inextricably bound up in the

admission of the touching testimony, so much so that the district court’s decision

not to sever was premised on its conclusion that the touching testimony was

relevant to the production counts. Because severance had been thoroughly

litigated, renewal would have been an “unnecessary formality,” United States v.

Vasques-Velasco, 15 F.3d 833, 845 (9th Cir. 1994), and McLeod did not waive the

issue.

The question here “is whether joinder was so prejudicial that the trial judge

was compelled to exercise his discretion to sever.” Lewis, 787 F.2d at 1321.

“There is a high risk of undue prejudice whenever . . . joinder of counts allows

evidence of other crimes to be introduced in a trial of charges with respect to which

the evidence would otherwise be inadmissible.” Id. (citation omitted) (alteration in

original). McLeod “has the burden of proving that the joint trial was manifestly

prejudicial,” meaning that his “right to a fair trial was abridged.” Id. (citations

omitted). In my view he has satisfied that burden.

The district court concluded the touching testimony was relevant to the

production counts because it rebutted what the court presumed was McLeod’s

affirmative defense—that he did not know the victims were underage. But the

testimony does not go to any element of the production charges, and allowing the

9
government to introduce that evidence in its case in chief put the cart before the

horse. Whether McLeod touched the victim after the two exchanged photos and

video does not make it more likely that he knew how old the victim was during

those exchanges. The problem here was that the testimony was not probative of

the production counts but in the jury’s mind was more than likely evidence of bad

character. See id. at 1322. Such prejudice would have been at its peak regarding

the production count concerning the other victim.

Nor were the district court’s instructions to the jury that it could consider

evidence of other uncharged acts “only for its bearing, if any, on the question of

the defendant’s intent and for no other purpose,” and that it could not “consider

[such] evidence as evidence of guilt of the crimes for which the defendant is now

on trial” sufficient to cure the prejudice. This Court has expressed skepticism that

“general instructions” can “ameliorat[e] the prejudice arising from joinder.” Bean

v. Calderon, 163 F.3d 1073, 1084 (9th Cir. 1998); see also Lewis, 787 F.2d at 1323

(“To tell a jury to ignore the defendant’s prior convictions in determining whether

he or she committed the offense being tried is to ask human beings to act with a

measure of dispassion and exactitude well beyond mortal capacities.” (quoting

United States v. Daniels, 770 F.2d 1111, 1118 (D.C. Cir. 1985)).

In my opinion, the district court abused its discretion by refusing to sever the

production counts from the travel and transport counts once it decided to admit the

10
touching evidence. Reversal and a new trial with the counts severed is appropriate

here.

4. McLeod argues that because he did not meet the victims face-to-face

before they sent him the pictures and videos—and so could not ascertain that they

were minors—his due process rights were violated when he was convicted under

18 U.S.C. § 2251(a) without requiring proof that he knew the victims were

underage. I agree with the majority that McLeod’s challenge to the

constitutionality of 18 U.S.C. § 2251 is foreclosed by United States v. U.S. Dist.

Court for Cent. Dists. of Cal., L.A. (“Kantor”), 858 F.2d 534 (9th Cir. 1988).

However, McLeod’s argument that Kantor’s rationale is inapplicable to the facts of

his case is not without some merit.

The defendants in Kantor were charged under § 2251 after they produced a

sexually explicit film with a sixteen-year-old performer. Id. at 536. They sought

to present as a defense evidence that the performer misled them by “pass[ing]

herself off as an adult,” and argued their First Amendment and due process rights

required the government to prove they knew she was a minor. Id. A panel of this

Court considered the legislative history of § 2251(a), noting that the omission of a

mens rea requirement “was quite clearly deliberate.” Id. at 538. Nevertheless,

Kantor concluded that because § 2251 regulates speech, and “the first amendment

[sic] does not permit the imposition of criminal sanctions on the basis of strict

11
liability where doing so would seriously chill protected speech . . . . imposition of

major criminal sanctions on the[] defendants without allowing them to interpose a

reasonable mistake of age defense would choke off protected speech.” Id. at 540–

41. Accordingly, Kantor held that, as to mens rea, “[a] defendant may avoid

conviction only by showing, by clear and convincing evidence, that he did not

know, and could not reasonably have learned, that the actor or actress was under

18 years of age.” Id. at 543 (footnotes omitted). Kantor did not reach the

defendants’ due process claim. Id. at 538.

The Supreme Court, considering 18 U.S.C. § 2252, a related statute which

prohibits distributions of child pornography, addressed whether the statute required

that a defendant know that the person in the images distributed was a minor.

United States v. X-Citement Video, Inc., 513 U.S. 64 (1994). In its analysis, the

Supreme Court contrasted the legislative history of § 2252 with that of § 2251,

noting that Congress intentionally omitted “knowingly” from § 2251 but not from

§ 2252. Id. at 76. And in a footnote, it noted that “[t]he difference in congressional

intent with respect to § 2251 versus § 2252 reflects the reality that producers are

more conveniently able to ascertain the age of performers,” and cited to Kantor for

the proposition that “[i]t thus makes sense to impose the risk of error on

producers.” Id. at 76 n.5.

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 McLeod argues Kantor’s “rationale is inapplicable to [his] case, which

involves indirect communications over the internet—a forum known to be rife with

inaccurate information.” In other words, McLeod argues the facts of his case make

him more akin to a distributor than to a producer. McLeod is correct that Congress

could not have envisioned the circumstances of his case when it enacted § 2251,

and also correctly notes that the “producer” rationale underlying Kantor and X-

Citement Video seems to contemplate face-to-face meeting between the defendant

and the minor. The technology innovation since Kantor was decided raises a

serious question as to the factual predicate to its reasoning. That technology did

not exist when Congress enacted § 2251, nor was it available when Kantor was

decided. When the law was enacted, and when Kantor was decided, a producer,

almost of necessity, had to encounter the minor to produce the illicit film or image.

That is no longer the case, which gives rise to the need to revisit the question of

whether the government should be put to the task of proving the defendant knew

the victim was underage. Kantor’s precedent is binding here, as the majority

found, but the issue is worth reconsideration by an en banc panel of this Court.

Because the district court erred by admitting Jackson’s expert testimony and

the Cellebrite report without making a reliability finding, by admitting the touching

testimony, and by failing to sever the production counts from the travel and

transport counts, I respectfully dissent in part, and I would send this case back for

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new trials on the severed counts with instructions to the district court to reconsider

its evidentiary rulings.

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