NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 22 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-30059
Plaintiff-Appellee, D.C. No.
3:18-cr-05141-BHS-1
v.
DONNIE BARNES, SR., MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted September 3, 2021
Seattle, Washington
Before: HAWKINS and McKEOWN, Circuit Judges, and RAKOFF,** District
Judge.
Donnie Barnes, Sr., appeals his jury-trial conviction for production,
distribution, and possession of child pornography. We have jurisdiction under 28
U.S.C. §1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
1. Barnes first contends that the district court erred by giving Jury
Instruction 19 and declining to give his proposed theory-of-defense instruction.
“District courts have wide discretion in crafting jury instructions,” and we review de
novo whether an instruction is supported by the law. United States v. Renzi, 769
F.3d 731, 755 (9th Cir. 2014).
Jury Instruction 19 incorporated the six factors enumerated in United States
v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), aff’d sub nom. United States v.
Weigand, 812 F.2d 1239 (9th Cir. 1987) (the “Dost factors”), as guidance for
interpreting the phrase “lascivious exhibition of the genitals or pubic area” in 18
U.S.C. § 2256(2)(A). We have repeatedly looked to the Dost factors as a starting
point for analyzing whether an image involves a “lascivious exhibition of the
genitals or pubic area,” and Jury Instruction 19 adequately conveyed that the factors
are neither exhaustive nor conclusive. See, e.g., United States v. Perkins, 850 F.3d
1109, 1122 (9th Cir. 2017); United States v. Overton, 573 F.3d 679, 686–87 (9th Cir.
2009). We also have recognized that consideration of the image from the
photographer’s perspective—the sixth Dost factor—is appropriate, particularly in a
case, as here, involving a charge of production of child pornography. See Overton,
573 F.3d at 688; United States v. Arvin, 900 F.2d 1385, 1389 (9th Cir. 1990) (“[T]he
apparent motive of the photographer and intended response of the viewer are
relevant.”).
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The district court also did not err by declining to give Barnes’s proposed
theory-of-defense instruction. “A judge need not include proposed instructions that
are ‘not necessary to explain to the jury the legal effect of the theory of the defense.’”
United States v. Kaplan, 836 F.3d 1199, 1215 (9th Cir. 2016) (quoting United States
v. Lopez-Alvarez, 970 F.2d 583, 597 (9th Cir. 1992)). The jury instructions specified
the government’s burden of proof and the elements of each offense. Under the
circumstances, the district court reasonably concluded that the proposed instruction
was unnecessary to explain the legal effect of Barnes’s insufficiency of the evidence
defense.
2. Barnes next contends that the prosecutor engaged in improper vouching
during closing and rebuttal argument by offering the government’s view of the
evidence and referring to the evidence as “compelling” and “overwhelming.” To
the extent Barnes did not object below to the specific statements he challenges on
appeal, we review for plain error. See United States v. Gomez-Norena, 908 F.2d
497, 500 (9th Cir. 1990). Otherwise, we review for harmless error. See United
States v. Flores, 802 F.3d 1028, 1034 (9th Cir. 2015).
Here, there was no reversible error. See United States v. Williams, 989 F.2d
1061, 1072 (9th Cir. 1993). The prosecutor’s statements “functioned mainly as
rhetorical emphasis for the inferences the prosecutor was urging the jury to draw
rather than a meaningful personal assurance that the defendants were guilty.” Id. at
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1073. The prosecutor emphasized that it was up to the jury alone to determine
whether the images were sexually explicit and that neither the government’s view
nor the defense’s view were helpful to that determination. And the prosecutor’s
statements in rebuttal directly responded to defense counsel’s argument that the
government doubted whether the images were pornography.
3. Finally, Barnes contends that the district court erred by denying his
motion to suppress the fruits of the summons issued to Comcast Communications
(“Comcast”) and the search warrant executed on his home and person. Again, the
district court did not err by denying suppression.
Barnes argues that the fruits of the Comcast summons should have been
suppressed because the Fourth Amendment required a warrant to obtain the
subscriber information associated with the IP address at issue, and law enforcement
instead obtained that information via a summons issued under 19 U.S.C. § 1509.
Even assuming that Barnes has standing to challenge the receipt of the subscriber
information, which belonged to his girlfriend, Barnes has not demonstrated a Fourth
Amendment violation. In United States v. Forrester, 512 F.3d 510 (9th Cir. 2008),
we held that internet users do not have a legitimate expectation of privacy in IP
addresses because “they should know that this information is provided to and used
by Internet service providers for the specific purpose of directing the routing of
information.” Id. at 510 (citing Smith v. Maryland, 442 U.S. 735 (1979)). We are
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not persuaded by Barnes’s argument that we may disregard Forrester in light of the
Supreme Court’s subsequent decision in Carpenter v. United States, 138 S. Ct. 2206
(2018). Carpenter emphasized that its holding was “narrow” and “did not disturb
the application of Smith,” which was the lynchpin of our decision in Forrester. See
Carpenter, 138 S. Ct. at 2220; see also Miller v. Gammie, 335 F.3d 889, 893 (9th
Cir. 2003) (en banc) (three-judge panel bound by prior circuit precedent unless it is
“clearly irreconcilable” with intervening higher authority). We need not consider
whether issuance of the Comcast summons was permitted under 19 U.S.C. § 1509
because, even assuming a statutory violation occurred, suppression would not be the
appropriate remedy. See, e.g., Forrester, 512 F.3d at 512.
The timing of the agents’ execution of the search warrant for Barnes’s home
similarly does not require suppression of any evidence. In compliance with Federal
Rule of Criminal Procedure 41, the issuing judge determined that good cause existed
to allow execution of the warrant at any time of day. See Fed. R. Crim. P.
41(e)(2)(A)(ii). Barnes has not demonstrated any constitutional violation or
circumstances that might warrant suppression. See United States v. Stefanson, 648
F.2d 1231, 1235 (9th Cir. 1981).
AFFIRMED.
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