Case: 22-30131 Document: 00516505706 Page: 1 Date Filed: 10/12/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 12, 2022
No. 22-30131
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
William Malone,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:20-CR-93-1
Before Stewart, Duncan, and Wilson, Circuit Judges.
Per Curiam:*
A jury convicted William Malone of five counts of production of child
pornography, one count of possession of child pornography, and one count
of use of a facility and means of interstate commerce to cause a minor to
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 22-30131 Document: 00516505706 Page: 2 Date Filed: 10/12/2022
No. 22-30131
engage in criminal sexual activity. He received an aggregate sentence of 160
years in prison.
On appeal, Malone first argues that the district court abused its
discretion by denying his request to introduce Child Protective Services
(CPS) reports showing that the victim had made prior unsubstantiated
accusations of abuse against her biological father and that professionals had
determined that the victim’s mother may have coached her daughter to make
those allegations. We review the district court’s evidentiary rulings for an
“abuse of discretion, subject to a harmless error analysis.” United States v.
Macedo-Flores, 788 F.3d 181, 191 (5th Cir. 2015). Under Federal Rule of
Evidence 803(8), a public agency’s records may be admitted if they include
“factual findings from a legally authorized investigation,” Fed. R. Evid.
803(8)(B), and “the opponent does not show that the source of information
or other circumstances indicate a lack of trustworthiness,” Fed. R. Evid.
803(8)(A)(iii).
Before the district court, the Government presented evidence
showing that the 2016 CPS report was not admissible under Rule 803(8)
because the report’s author admitted that it contained misstatements and
exaggerations. The district court exercised its “discretion, and indeed [its]
obligation, to exclude an entire report or portions thereof . . . that [it]
determine[d] to be untrustworthy.” Beech Aircraft Corp. v. Rainey, 488 U.S.
153, 167 (1988). This is so even if the report was created under the state’s
rules for CPS reports. See United States v. Arledge, 553 F.3d 881, 892–93 (5th
Cir. 2008). Regardless, any error was harmless in view of the overwhelming
evidence of Malone’s guilt. See Macedo-Flores, 788 F.3d at 191. Moreover,
Malone has failed to challenge the district court’s determination that the
reports were unduly prejudicial under Federal Rule of Evidence 403, so any
such argument is abandoned. See United States v. Scroggins, 599 F.3d 433,
446–47 (5th Cir. 2010).
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Malone next challenges the district court’s admission of evidence
presented by the Government. Malone’s contentions lack merit. The
district court did not abuse its discretion in admitting evidence of sexual
abuse by Malone because it was intrinsic to the charges of child pornography
production. See United States v. Lucas, 849 F.3d 638, 642–43 (5th Cir. 2017);
United States v. Clements, 73 F.3d 1330, 1337 (5th Cir. 1996).
Likewise, the district court did not abuse its discretion in admitting
commercial images of child pornography found on Malone’s phone because
they are arguably intrinsic to the possession charge. Even if not, the evidence
was admissible under Federal Rule of Evidence 414(a) as a similar act of child
molestation. And while Malone contends that there was no evidence
establishing the ages of the victims, the district court did not err in
determining that the jurors themselves could determine the age of the
individuals depicted in the images. See United States v. Katz, 178 F.3d 368,
373 (5th Cir. 1999).
Finally, Malone’s internet searches for incest pornography and for
young victims, as well as his research of Alabama rape statutes upon learning
of the state charges against him, were admissible under Federal Rule of
Evidence 404(b) as evidence of Malone’s knowledge and his state of mind at
the time of his interview with federal agents. That probative value was not
outweighed by undue prejudice. See United States v. Gurrola, 898 F.3d 524,
537 (5th Cir. 2018).
Malone also contends that the district court erred by denying his
motion for a mistrial following the prosecutor’s comment indicating that he
had met with Malone in jail. “This court reviews the denial of a motion for
mistrial for abuse of discretion.” United States v. Velasquez, 881 F.3d 314,
343 (5th Cir. 2018). In considering the prosecutor’s comment, this court
must look to the context in which it was made and whether it prejudiced the
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defendant by casting serious doubt on the correctness of the verdict. United
States v. Insaulgarat, 378 F.3d 456, 461 (5th Cir. 2004).
When viewed in context, the statement was an attempt to remind
Malone of a conversation he did not recall. See United States v. McBride, 463
F.2d 44, 48 n.1 (5th Cir. 1972). In addition, given Malone’s admission that
he was arrested by federal agents and given the prosecutor’s failure to specify
when the jailhouse meeting occurred, it is unlikely that the single remark
could cast serious doubt on the correctness of the verdict. See United States
v. Delgado, 672 F.3d 320, 338–39 (5th Cir. 2012) (en banc). Given the
substantial evidence reflecting Malone’s guilt, he is unable to show that the
district court abused its discretion. See United States v. Velasquez, 881 F.3d
314, 343 (5th Cir. 2018); Insaulgarat, 378 F.3d at 461.
Finally, Malone contends that his 160-year sentence is substantively
unreasonable. We review a challenge to the substantive reasonableness of a
sentence for abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007).
Malone’s sentence is entitled to a presumption of reasonableness. United
States v. Simpson, 796 F.3d 548, 557 (5th Cir. 2015). To rebut that
presumption, he must show that the imposed sentence “(1) does not account
for a factor that should have received significant weight, (2) gives significant
weight to an irrelevant or improper factor, or (3) represents a clear error of
judgment in balancing the sentencing factors.” Id. at 558 (internal quotation
marks and citation omitted). Malone’s general disagreement with the
propriety of his sentence and the district court’s weighing of the 18 U.S.C.
§ 3553(a) factors is insufficient to establish that the district court erred in
balancing them. See Gall, 552 U.S. at 51; Simpson, 796 F.3d at 558. He has
not shown that the district abused its discretion in imposing the aggregate
160-year sentence. See Gall, 552 U.S. at 51.
AFFIRMED.
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