United States v. Michael Clark ( 2022 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0013p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
UNITED STATES OF AMERICA,
│
Plaintiff-Appellee, │
> No. 20-5722
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v. │
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MICHAEL B. CLARK, │
Defendant-Appellant. │
│
┘
Appeal from the United States District Court
for the Eastern District of Kentucky at Covington.
No. 2:18-cr-00048-1—David L. Bunning, District Judge.
Argued: October 20, 2021
Decided and Filed: January 24, 2022
Before: BATCHELDER, LARSEN, and READLER, Circuit Judges.
_________________
COUNSEL
ARGUED: Gregory A. Napolitano, LAUFMAN & NAPOLITANO, LLC, Cincinnati, Ohio, for
Appellant. Elaine K. Leonhard, UNITED STATES ATTORNEY’S OFFICE, Ft. Mitchell,
Kentucky, for Appellee. ON BRIEF: Gregory A. Napolitano, LAUFMAN & NAPOLITANO,
LLC, Cincinnati, Ohio, for Appellant. Charles P. Wisdom, Jr., James T. Chapman, UNITED
STATES ATTORNEY’S OFFICE, Lexington, Kentucky, for Appellee.
No. 20-5722 United States v. Clark Page 2
_________________
OPINION
_________________
ALICE M. BATCHELDER, Circuit Judge. Following his conviction for distribution of
child pornography, Appellant Michael Clark appeals, arguing that there was insufficient
evidence to support the jury’s verdict and that the district court committed various evidentiary
errors that require reversal. Because Clark’s arguments lack merit, we AFFIRM the judgment of
the district court.
I.
Michael Clark was convicted by a jury on five counts of knowingly distributing child
pornography in violation of 18 U.S.C. § 2252(a)(2).
In 2017, Steven Kush, an undercover police detective in Campbell, Kentucky, used a
computer program to search for individuals who were illegally trading and downloading child
pornography on BitTorrent, a peer-to-peer file-sharing network. Kush’s computer program was
set up to scan for, and then download, potential illegal images and videos from sources located in
Kentucky. The program was unique in that it performed “single-source download[s],” meaning
that it “single[d] out a single peer on the network based on their IP address.” By contrast, a
download by a typical user on a file-sharing network would receive multiple pieces of a file from
several different sources.
On several occasions in May and June 2017, Kush’s computer program downloaded child
pornography from a computer with an IP address located in Independence, Kentucky. Kush did
not investigate these downloads. But after some time, he provided them to Steven Benner, a
police officer in Kenton, Kentucky, assigned to investigate internet crimes against children.
Benner used the information to obtain a warrant to search Clark’s residence, the source of the
downloaded child pornography.
No. 20-5722 United States v. Clark Page 3
At 6:00 a.m. on April 5, 2018, Benner and other officers executed the search warrant.
Clark was home, along with his wife, daughter, and grandson. The officers seized multiple
computers, including an Apple MacBook Pro laptop, an Acer Aspire laptop, and a Compaq
Presario laptop. The officers interviewed Clark and recorded the interview. They told Clark that
he was not under arrest, and they did not give him Miranda warnings. Clark told the officers that
the MacBook laptop was his work computer. Later that day, the officers interviewed Clark’s
adult son, Josh Clark, along with Josh’s roommate and family friend, Cody Thierauf, at their
apartment.
The three computers seized in the search were sent to Tom Bell, a forensic examiner in
the Cyber Crimes Branch of the Kentucky Attorney General’s Office. Bell’s examination of the
MacBook computer found 295 images and 62 videos of child pornography, a user profile named
“Mike,” and evidence suggesting the former presence of additional illegal content and file-
sharing programs. Similarly, Bell’s examination of the Acer and Compaq computers found
evidence of file-sharing programs, that both had user profiles named “Mike,” and the former
presence of search terms associated with child pornography. The Acer and Compaq computers,
however, had been last logged into in 2007 and 2009, respectively.
Clark was convicted by a jury based on the evidence on the MacBook computer. The
district court sentenced him to 192 months in prison, followed by twenty years of supervised
release. Clark timely appeals.
II.
On appeal, Clark argues that we should reverse his conviction for three reasons, none of
which is persuasive.
A. Sufficiency of the Evidence
Clark claims that his conviction for distributing child pornography, 18 U.S.C.
§ 2252(a)(2), must be reversed because the evidence produced at trial was insufficient to prove:
(1) that the illegal images and videos traveled in interstate commerce; and (2) that Clark
knowingly distributed the images and videos. The statute states, in pertinent part:
No. 20-5722 United States v. Clark Page 4
“Any person who . . . knowingly . . . distributes[] any visual depiction [that
involves the use of a minor engaging in sexually explicit conduct] using any
means or facility of interstate or foreign commerce . . . shall be punished as
provided [herein].”
18 U.S.C. § 2252(a)(2).1
A conviction is supported by sufficient evidence if, “after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
(1979); see United States v. Barnett, 398 F.3d 516, 521–22 (6th Cir. 2005). “Circumstantial
evidence alone is sufficient to sustain a conviction and such evidence need not remove every
reasonable hypothesis except that of guilt.” United States v. Vannerson, 786 F.2d 221, 225 (6th
Cir. 1986). “This limited review bars courts from intrud[ing] on the jury’s role to resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic
facts to ultimate facts.” United States v. Maya, 966 F.3d 493, 499 (6th Cir. 2020) (cleaned up).
We review the sufficiency of the evidence de novo. United States v. Farrad, 895 F.3d 859, 871
(6th Cir. 2018).
The government devotes a substantial portion of its brief to arguing that Clark’s
challenge is to the jury instructions, a challenge that he failed to preserve by not objecting to
them in the district court. A careful review of Clark’s briefing, however, shows that he does not
challenge the jury instructions. Rather, Clark takes issue with the sufficiency of the evidence.
Because these are separate issues, Clark’s concessions regarding the jury instructions are
118 U.S.C. § 2252(a)(2) reads, in full, as follows:
(a) Any person who— . . .
(2) knowingly receives, or distributes, any visual depiction using any means or facility of
interstate or foreign commerce or that has been mailed, or has been shipped or
transported in or affecting interstate or foreign commerce, or which contains materials
which have been mailed or so shipped or transported, by any means including by
computer, or knowingly reproduces any visual depiction for distribution using any means
or facility of interstate or foreign commerce or in or affecting interstate or foreign
commerce or through the mails, if--
(A) the producing of such visual depiction involves the use of a minor engaging in
sexually explicit conduct; and
(B) such visual depiction is of such conduct; . . . . shall be punished as provided in
subsection (b) of this section.
No. 20-5722 United States v. Clark Page 5
immaterial to his present claim. And to the extent that the government argues that Clark waived
or forfeited his sufficiency claim, we find that he did not.2
1. “Means or Facility of Interstate Commerce” Element
Clark challenges the interstate-commerce element of § 2252(a)(2).3 He claims that there
is insufficient evidence of interstate travel because the illegal images and videos were
transmitted purely intrastate between two computers located in Kentucky. In Clark’s view, the
child pornography moved directly from his computer (located in Independence, Kentucky) to
detective Kush’s computer (located in a neighboring county) through the internet in what is
called a “single-source download.” The government argues that there was sufficient evidence
because an internet transmission necessarily involves the interstate travel of data and, in any
event, § 2252(a)(2) only requires distribution through a “means” of interstate commerce.
Clark’s argument implicates important but relatively simple questions about what the
interstate-commerce element of § 2252(a)(2) requires. Does it require evidence that the child
pornography travelled across state lines? Or does § 2252(a)(2) merely require that a defendant
used a means or facility of interstate commerce (such as the internet) to distribute the child
pornography? We find that it requires the latter.4
2At the close of the government’s case, Clark moved for judgment of acquittal under Rule 29. He did not
base the motion on specific grounds, and the district court understood the motion to argue, generally, that there was
insufficient evidence to support a guilty verdict. Clark later renewed his Rule 29 motion after introducing evidence
on his own behalf. Considering these general motions, we conclude that Clark did not waive or forfeit his
sufficiency claim. United States v. Chance, 306 F.3d 356, 371 (6th Cir. 2002) (finding that a defendant preserved
his sufficiency challenge because his Rule 29 motions “were general in nature” and were not construed [by the
district court] as . . . based on specific grounds”); cf. United States v. Hamm, 952 F.3d 728, 740 (6th Cir. 2020)
(“Although specificity of grounds is not required in a Rule 29 motion, where a Rule 29 motion is made on specific
grounds, all grounds not specified are waived.” (quotation omitted)).
3Clark also argues that, because there is insufficient evidence of the interstate-commerce element, this
court is deprived of subject-matter jurisdiction. He is incorrect. The interstate-commerce element of an offense is
jurisdictional only in the sense that it relates to the power of Congress to regulate the conduct. Whether or not the
government has proven the interstate-commerce element in a particular case does not affect the court’s subject-
matter jurisdiction. United States v. Bacon, 884 F.3d 605, 608 (6th Cir. 2018); United States v. Riddle, 249 F.3d
529, 536 (6th Cir. 2001).
4Although Clark’s brief makes passing references to “an unconstitutional expansion of federal power” and
“a glaring evidentiary hole with constitutional implications” he falls well short of presenting a developed
constitutional challenge to § 2252(a)(2). We, therefore, do not consider the constitutionality of § 2252(a)(2) under
No. 20-5722 United States v. Clark Page 6
We begin with the language of the statute. As noted, § 2252(a)(2), in relevant part,
punishes “any person . . . who knowingly . . . distributes [child pornography] using any means or
facility of interstate or foreign commerce.” Our analysis turns on the phrase “using any means or
facility of interstate or foreign commerce.” A plain reading of that phrase shows that
§ 2252(a)(2) proscribes the distribution of child pornography provided that the distribution
occurs using a means of interstate commerce. We do not read the statute to require actual
transportation of child pornography across state lines. And we have held that the internet is a
means of interstate commerce. United States v. Pina, 724 F. App’x 413, 422–23 (6th Cir. 2018);
United States v. Pers., 714 F. App’x 547, 551 (6th Cir. 2017); see United States v. Daniels,
653 F.3d 399, 408 (6th Cir. 2011).
In 2008, Congress amended the jurisdictional provisions of several child-pornography
laws, including § 2252(a)(2), to add the phrase “using any means or facility of interstate or
foreign commerce.” Effective Child Pornography Prosecution Act of 2007, Pub. L. No. 110–
358, § 103, 122 Stat. 4001 (2008) (amending §§ 2251, 2251A, 2252, and 2252A to include that
phrase). Previously, § 2252(a)(2) required that the child pornography had been mailed, shipped,
or transported in interstate or foreign commerce.5 18 U.S.C. § 2252(a)(2) (2006). We agree with
other circuit courts that have interpreted this amendment as an “expan[sion]” of the statute’s
“jurisdictional coverage.” United States v. Lewis, 554 F.3d 208, 216 (1st Cir. 2009); see United
States v. Crain, 877 F.3d 637, 646 & n.32 (5th Cir. 2017) (recognizing that the “jurisdictional
element” of 2252(a) was “expanded” by the 2008 amendment); United States v. Wasson,
Congress’s Commerce Clause authority. See Boegh v. EnergySolutions, Inc., 772 F.3d 1056, 1063 (6th Cir. 2014)
(noting that an appellant abandons an argument by failing to “fully develop” it).
5The prior version of § 2252(a)(2) stated:
(a) Any person who— . . .
(2) knowingly receives, or distributes, any visual depiction that has been mailed, or has been
shipped or transported in interstate or foreign commerce, or which contains materials which have
been mailed or so shipped or transported, by any means including by computer, or knowingly
reproduces any visual depiction for distribution in interstate or foreign commerce or through the
mails, if ––
(A) the producing of such visual depiction involves the use of a minor engaging in sexually
explicit conduct; and
(B) such visual depiction is of such conduct; . . . . shall be punished as provided in subsection (b)
of this section.
18 U.S.C. § 2252(a)(2) (2006).
No. 20-5722 United States v. Clark Page 7
847 F. App’x 523, 525–26 (10th Cir. 2021) (emphasizing that Congress “reduce[d] the
government’s burden on the interstate commerce element” when it amended a materially
identical offense to include the words “using any means or facility of interstate or foreign
commerce”) (interpreting § 2252A). That is to say, the interstate-commerce element of
§ 2252(a)(2) is satisfied when a defendant uses the internet to distribute child pornography,
regardless of whether there is evidence that the data travelled interstate.
Clark’s argument that his child pornography did not pass through interstate wires—
though dubious considering the structure, complexity, and interconnectedness of the internet––is
therefore inconsequential. By its terms, § 2252(a)(2) can reach a purely intrastate distribution of
child pornography so long as that distribution occurred by the use of a means or facility of
interstate commerce. Other circuit courts have reached the same conclusion when interpreting
identical language in substantially similar statutes.6 See, e.g., United States v. Baum,
6
18 U.S.C. § 2251(a), (d) states:
(a) Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in,
or who has a minor assist any other person to engage in, or who transports any minor in or
affecting interstate or foreign commerce, or in any Territory or Possession of the United States,
with the intent that such minor engage in, any sexually explicit conduct for the purpose of
producing any visual depiction of such conduct or for the purpose of transmitting a live visual
depiction of such conduct, shall be punished as provided under subsection (e), if such person
knows or has reason to know that such visual depiction will be transported or transmitted using
any means or facility of interstate or foreign commerce or in or affecting interstate or foreign
commerce or mailed, if that visual depiction was produced or transmitted using materials that have
been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means,
including by computer, or if such visual depiction has actually been transported or transmitted
using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign
commerce or mailed . . . .
(d) (1) Any person who, in a circumstance described in paragraph (2), knowingly makes, prints, or
publishes, or causes to be made, printed, or published, any notice or advertisement seeking or
offering—
(A) to receive, exchange, buy, produce, display, distribute, or reproduce, any visual depiction, if
the production of such visual depiction involves the use of a minor engaging in sexually explicit
conduct and such visual depiction is of such conduct; or . . .
(2) The circumstance referred to in paragraph (1) is that—
(A) such person knows or has reason to know that such notice or advertisement will be transported
using any means or facility of interstate or foreign commerce or in or affecting interstate or
foreign commerce by any means including by computer or mailed; or
(B) such notice or advertisement is transported using any means or facility of interstate or foreign
commerce or in or affecting interstate or foreign commerce by any means including by computer
or mailed.
No. 20-5722 United States v. Clark Page 8
542 F. App’x 724, 726–27 (10th Cir. 2013) (finding that, after § 2252A(a)(5)(B) was amended in
2008, the government was not required “to establish that the images themselves had crossed state
lines”); United States v. Brown, 785 F.3d 1337, 1350–51 (9th Cir. 2015) (interpreting the 2008
amendments of §§ 2251(d)(1)(A) and 2252A(a)(1) to “not require evidence that the [child
pornography] actually crossed state lines”); United States v. DeFoggi, 839 F.3d 701, 713 (8th
Cir. 2016) (“[The defendant’s] use of the internet to access and download [child pornography]
from [a website] is enough in this case to satisfy the interstate commerce nexus [of
§ 2252A(a)(5)(B)].”); see also United States v. Grzybowicz, 747 F.3d 1296, 1306 (11th Cir.
2014) (“The interstate commerce element[s] for [§§ 2251(a) and 2252A(a)(5)(B)] [are] satisfied
by proof that the child pornography was transmitted using a facility of interstate or foreign
commerce, including by computer . . . .”). In this case, the government provided the jury with
circumstantial evidence that Clark’s child pornography moved from his computer through the
internet to the government agent’s computer. This is sufficient evidence of distribution using a
means or facility of interstate commerce within the meaning of § 2252(a)(2).
There are, however, two issues worth noting. First, some circuit courts do not distinguish
between the current and prior versions of the child-pornography laws. In interpreting the pre-
amendment versions of §§ 2251, 2252, and 2252A, those courts found that transmitting child
pornography over the internet was tantamount to moving the pornography across state lines7—
18 U.S.C. § 2252A(a)(5) states:
(a) Any person who . . .
(5) either —
(A) in the special maritime and territorial jurisdiction of the United States, or on any land or
building owned by, leased to, or otherwise used by or under the control of the United States
Government, or in the Indian country (as defined in section 1151), knowingly possesses, or
knowingly accesses with intent to view, any book, magazine, periodical, film, videotape, computer
disk, or any other material that contains an image of child pornography; or
(B) knowingly possesses, or knowingly accesses with intent to view, any book, magazine,
periodical, film, videotape, computer disk, or any other material that contains an image of child
pornography that has been mailed, or shipped or transported using any means or facility of
interstate or foreign commerce or in or affecting interstate or foreign commerce by any means,
including by computer, or that was produced using materials that have been mailed, or shipped or
transported in or affecting interstate or foreign commerce by any means, including by computer
....
7
Lewis, 554 F.3d at 215 (“[W]e conclude that the government proved the images traveled interstate when it
introduced evidence that [the defendant] received images that were transmitted over the Internet.”) (interpreting
No. 20-5722 United States v. Clark Page 9
which thereafter foreclosed arguments like Clark’s in those circuits, even after the 2008
amendment.8 On occasion, we have suggested that we agree that an internet transmission
implicates interstate travel. See United States v. Thomas, 74 F.3d 701, 706–10 (6th Cir. 1996);
United States v. Mellies, 329 F. App’x 592, 605–06 (6th Cir. 2009); United States v. Napier,
787 F.3d 333, 346–47 (6th Cir. 2015); Pina, 724 F. App’x at 422–23. But because the current
version of § 2252(a)(2) does not require interstate travel, we need not reach that issue in this
case.
Second, evidence of internet use is not the only method by which the government can
prove the interstate-commerce element of § 2252(a)(2). Another way to satisfy the element is
with evidence of actual interstate travel. See Napier, 787 F.3d at 344–46 (explaining that the
government can satisfy the interstate-commerce element of § 2252(a)(2) in various ways,
including with “proof that ‘the visual depiction or the production or transmission materials
crossed a state line’”). But the government did not do that here, apart from proving that Clark
used the internet. It did not introduce evidence of the interstate origin of the computer used in
the commission of the offense,9 the origin of the visual depictions themselves, or the location of
the internet servers involved. If it had, we would likely have had no difficulty affirming Clark’s
conviction on this ground. See, e.g., id. at 345–47; United States v. Schaefer, 501 F.3d 1197,
1208 (10th Cir. 2007) (Tymkovich, J., concurring), overruled in part by United States v. Sturm,
672 F.3d 891 (10th Cir. 2012) (“Most Internet cases, for example, include testimony regarding
§ 2252(a)(2)); United States v. Harris, 548 F. App’x 679, 682 (2d Cir. 2013) (finding that “use of the Internet”
supports a finding “that the child pornography had been ‘transported in interstate . . . commerce” under
§ 2252(a)(2));United States v. MacEwan, 445 F.3d 237, 244 (3d Cir. 2006) (“[B]ecause of the very interstate
nature of the Internet, once a user submits a connection request to a website server or an image is transmitted from
the website server back to the user the data has traveled in interstate commerce.”) (interpreting § 2252A(a)(2)(B));
United States v. White, 2 F. App’x. 295, 298 (4th Cir. 2001) (finding that the transmission of child pornography “by
means of the Internet is tantamount to moving [it] across state lines” (quotation omitted)) (interpreting
§ 2252A(a)(5)(B)); United States v. Runyan, 290 F.3d 223, 239 (5th Cir. 2002) (same) (interpreting § 2251).
8
See, e.g., United States v. Pires, 642 F.3d 1, 9 (1st Cir. 2011); United States v. Clarke, 979 F.3d 82, 93 &
n.6 (2d Cir. 2020); United States v. Franz, 772 F.3d 134, 154–55 (3d Cir. 2014); United States v. Miltier, 882 F.3d
81, 87–88 (4th Cir. 2018); United States v. Bogomol, 623 F. App’x 219, 220–21 (5th Cir. 2015).
9
It appears that the government did, however, introduce Clark’s MacBook Pro into evidence at trial.
Although it is quite likely that the computer had a label on the back of it that denoted its country or state of origin,
the government failed to argue this point to us or the district court.
No. 20-5722 United States v. Clark Page 10
the location of the servers accessed by defendant, or some other evidence that reveals the
interstate character of the particular transmissions at issue.”).
Nevertheless, for the reasons previously stated, sufficient evidence exists to support the
interstate-commerce element of Clark’s conviction under § 2252(a)(2).
2. “Knowing Distribution” Element
Next, Clark challenges the “knowing distribution” element of § 2252(a)(2). He argues
that the evidence at trial was insufficient because sharing was the default setting on his peer-to-
peer program and was not purposefully selected by him. This argument is without merit.
We have repeatedly held that even passive distribution of known child pornography
constitutes distribution under § 2252 where the files are knowingly made available to others
through file-sharing software. See, e.g., United States v. Moran, 771 F. App’x 594, 598 (6th Cir.
2019); United States v. Conner, 521 F. App’x 493, 500 (6th Cir. 2013) (“We agree with the
government that knowing use of LimeWire, much like the posting of a file on a website, is
sufficient [to find knowing distribution].”). In so holding, we have agreed with the First Circuit
that “[w]hen an individual consciously makes files available for others to take and those files are
in fact taken, distribution has occurred” and “[t]he fact that the defendant did not actively elect to
transmit those files is irrelevant.” Moran, 771 F. App’x at 598 (quoting United States v.
Chiaradio, 684 F.3d 265, 282 (1st Cir. 2012)).
We have also found support for this position in our application of USSG
§ 2G2.2(b)(3)(F), the sentencing enhancement for knowing distribution of child pornography.
Id. In those cases, we have upheld use of the enhancement “when files are knowingly made
available through file-sharing software” because the very “point of using a file-sharing program
. . . ‘is to share.’” Id. (quoting United States v. Abbring, 788 F.3d 565, 567–68 (6th Cir. 2015));
see also Conner, 521 F. App’x at 500 (noting that “courts have not required the government to
prove” that a defendant knew his computer was “equipped to distribute”); United States v.
Dunning, 857 F.3d 342, 350 (6th Cir. 2017) (“Dunning’s knowing use of peer-to-peer software
justifies the distribution enhancement.”).
No. 20-5722 United States v. Clark Page 11
Clark does not dispute that he knowingly used peer-to-peer software or that the child
pornography on his computer was in his shared folder. Absent “concrete evidence of [Clark’s]
ignorance” that his program was set up to share, these concessions alone satisfy the knowing-
distribution element of § 2252(a)(2). Dunning, 857 F.3d at 350 (quoting Abbring, 788 F.3d
at 568); see Moran, 771 F. App’x at 598–99; United States v. Collard, 849 F. App’x 523, 533
(6th Cir. 2021). The fact-finder could have reasonably inferred that Clark knew that placing
child pornography in his shared folder meant that it could be accessed and downloaded by others,
including law enforcement. See Dunning, 857 F.3d at 350. Additionally, the government
presented evidence that a user may turn off the program’s default sharing function and that Clark
took no such steps. There was also evidence that Clark set up two “evidence destruction
programs” on his MacBook computer to “run at [the computer’s] start.” Altogether, there is
sufficient circumstantial evidence that Clark knowingly distributed illegal images and videos
when he placed them in an accessible public folder on a peer-to-peer network.
Therefore, sufficient evidence supports the interstate-commerce element and the
knowing-distribution element of Clark’s conviction.
B. Evidentiary Errors
Next, Clark argues that the district court committed various evidentiary errors that require
reversal. Each will be addressed in turn. We find no errors or abuses of discretion.
1. Clark’s Recorded Interrogation
Clark challenges the admission of his recorded interrogation with Officer Benner, which
Clark alleges was obtained in violation of his Fifth Amendment rights because he was not given
Miranda warnings. The government responds that Clark waived his Miranda argument because
Clark conceded during the trial that he was not under arrest and that the police did not have to
give him Miranda warnings. In the alternative, the government argues, first, that we should
decline to review Clark’s claim because it turns on unresolved questions of fact and, second, that
the interrogation was not custodial. We find that Clark waived his Miranda claim.
No. 20-5722 United States v. Clark Page 12
“[W]aiver is the intentional relinquishment or abandonment of a known right.” United
States v. Olano, 507 U.S. 725, 733 (1993) (quotation marks omitted). It is different from mere
forfeiture, which “is the failure to make the timely assertion of a right.” Id. We have found that
a defendant waives an argument by, for example, raising and then abandoning it, United States v.
Denkins, 367 F.3d 537, 543 (6th Cir. 2004), stating in a brief that a proposition is not disputed,
United States v. Walker, 615 F.3d 728, 733 (6th Cir. 2010), or conceding it in open court and
then changing positions on appeal, United States v. Abdi, 827 F. App’x 499, 506 (6th Cir. 2020).
On the other hand, we have found that a defendant forfeits an argument by, for example, failing
to make it before the district court, United States v. Montgomery, 998 F.3d 693, 698 (6th Cir.
2021), only summarily raising it without a developed argument, Automated Sols. Corp. v.
Paragon Data Sys., Inc., 756 F.3d 504, 521–22 (6th Cir. 2014), or acknowledging it without
“press[ing] it,” Jones Bros., Inc. v. Sec’y of Labor, 898 F.3d 669, 677 (6th Cir. 2018).
Clark never asserted his Miranda claim before the district court. He did not bring a
pretrial motion to suppress his recorded statements, as required by Federal Rule of Criminal
Procedure12(b); and he did not object to the admission of his statements during trial, or when the
district court sua sponte told the jury that “[a]s a matter of law, Miranda warnings were not
necessary in this case.” Most importantly, Clark told the jury, “[w]e all know that [Clark] at the
time of the interrogation[] [was] not under arrest” and therefore the police “didn’t have to give
[him] the Miranda warnings.”
Clark, therefore, conceded his Miranda claim in a manner that we have found evinces an
intentional relinquishment of a known right. See United States v. Soto, 794 F.3d 635, 655 (6th
Cir. 2015) (“[W]e do not treat the failure to file a [Rule 12(b)] motion as a waiver unless the
circumstances of the case indicate that the defendant intentionally relinquished a known right.”).
Clark’s conduct was not merely passive. He made a “a plain, explicit concession on the record
addressing the precise issue later raised on appeal,” and therefore affirmatively waived his claim
going forward. United States v. Mabee, 765 F.3d 666, 673 (6th Cir. 2014); Abdi, 827 F. App’x
at 506.
No. 20-5722 United States v. Clark Page 13
But even if Clark did not waive his Miranda claim, he certainly forfeited it. In such a
case, we review the admission for plain error. United States v. Ramamoorthy, 949 F.3d 955, 962
(6th Cir. 2020). A plain-error review of a forfeited suppression claim is “permissive, not
mandatory.” Id. (quoting Olano, 507 U.S. at 735). We have declined to review such claims
when they “turn[] on unresolved questions of fact.” Id. This is because “[s]uppression claims
typically present fact-oriented issue[s]” that appellate courts “are not equipped to decide . . . in
the first instance.” Id. at 962–63 (cleaned up). Clark’s claim, like most suppression claims,
implicates these concerns. He asks us to decide whether he was subject to custodial interrogation
when he was questioned by Officer Benner. Resolving that question depends on the “totality of
the circumstances” and whether a reasonable person in Clark’s position would have felt free to
leave—inquiries that necessitate the “balancing [of] a series of factors, no one of which is
determinative, and all of which are highly dependent upon what transpired . . . that day.”
Ramamoorthy, 949 F.3d at 963; see United States v. Brooks, 379 F. App’x 465, 473 (6th Cir.
2010). The district court is better suited to develop these fact-intensive questions. See United
States v. Simer, 835 F. App’x 60, 68 (6th Cir. 2020) (declining review because appellate courts
are “ill-equipped to re-create the fact-intensive and focused nature of a suppression hearing”).
And because these questions were not raised earlier, the district court made no factual findings
relevant to them and neither party had the “incentive to develop the factual record” on them.
Ramamoorthy, 949 F.3d at 963 (quotation omitted); see United States v. Finch, 998 F.2d 349,
355 (6th Cir. 1993) (declining review because “[a]lthough the facts appear to have been well
developed, it is possible that the failure of the defense to raise the issue may have influenced the
manner in which the evidence was developed”). Therefore, even if Clark’s Miranda claim was
not waived, it turns on unresolved questions of fact, and we decline to review it.
2. Old Computers
Clark argues that the district court erroneously allowed the government to present
evidence of two old computers found in his home, claiming that such evidence was inadmissible
under Rules 404(b) and 403 of the Federal Rules of Evidence.
No. 20-5722 United States v. Clark Page 14
During the search of Clark’s home, law enforcement seized an Acer and a Compaq
computer, among other devices. When those two computers were forensically examined, Tom
Bell found evidence of peer-to-peer software and deleted data that suggested the former presence
of child pornography and related searches. Bell testified that “[t]hese hits were also found in a
folder named ‘Mike.’” Clark moved to exclude this evidence, but the district court denied the
motion, finding the evidence admissible under Rule 404(b) to prove identity and absence of
mistake or accident, and finding no unfair prejudice under Rule 403.
Rule 404(b). Rule 404(b) provides that “[e]vidence of any other 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.” Fed. R. Evid. 404(b)(1). But such evidence can
be admitted for “another purpose,” such as “proving motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). We
review de novo the district court’s legal determination that the evidence was admissible for a
proper 404(b) purpose.10 See United States v. Rayborn, 495 F.3d 328, 342 (6th Cir. 2007).
The evidence concerning the Acer and Compaq computers is probative of a material issue
other than character. It tended to show that Clark—whose given name, after all, is Michael—
was the individual responsible for distributing child pornography (i.e., identity and absence of
mistake) and to disprove his defenses that (1) someone else was the perpetrator, and (2) he was a
technological novice. As the district court noted, these are permissible purposes under Rule
404(b). We have “overwhelmingly approved of the admission of ‘other acts’ evidence” when
identity is a material issue. United States v. Perry, 438 F.3d 642, 648 (6th Cir. 2006); see, e.g.,
United States v. Keith, 502 F. App’x 453, 455 (6th Cir. 2012) (affirming the admission of prior
convictions to “show that [defendant] was the individual responsible for the child pornography
found on the computer”). The evidence was properly admitted under 404(b).
10Our circuit appears to be split as to whether we review a district court’s 404(b) determination de novo or
for an abuse of discretion. United States v. Carter, 779 F.3d 623, 625 (6th Cir. 2015). We decline to resolve that
disagreement in this case, however, because Clark’s 404(b) argument fails under either standard of review.
No. 20-5722 United States v. Clark Page 15
Rule 403. Rule 403 provides a balancing test for excluding relevant evidence, but only if
the evidence’s “probative value is substantially outweighed by a danger of . . . unfair prejudice.”
Fed. R. Evid. 403; see also United States v. Asher, 910 F.3d 854, 860 (6th Cir. 2018) (“The test
is strongly weighted toward admission.”). We review such rulings for abuse of discretion.
United States v. Hazelwood, 979 F.3d 398, 408 (6th Cir. 2020).
As explained, the evidence was highly probative of material issues. And with this in
mind, the evidence did not present an overwhelming danger of unfair prejudice. The district
court gave a clear limiting instruction to the jury that it could use the evidence for only limited,
permissible purposes. The court repeated this instruction while giving the jury charge. Given
these instructions and the importance of the computer evidence, any remaining prejudice was
limited and did not invite the jury to decide the case on an improper basis. United States v. Lang,
717 F. App’x 523, 539 (6th Cir. 2017) (“[Rule 403] only contemplates ‘evidence which tends to
suggest a decision on an improper basis’ or which ‘hit[s] . . . below[] the belt.’” (quotation
omitted)); United States v. Lattner, 385 F.3d 947, 958 (6th Cir. 2004); Keith, 502 F. App’x at
455. Because the district court properly weighed the evidence’s probative value against its
limited prejudicial effect, it did not abuse its discretion under Rule 403.
The Government’s Closing Argument. Clark also contends that the government
improperly told the jury during closing arguments that it may use the computer evidence to prove
that Clark’s distribution was “knowing.” Although Clark did not object to these statements in
the district court, he now argues that they violated the district court’s limiting instruction. But,
again, the government used the computer evidence for a permissible Rule 404(b) purpose: to
prove that Clark knowingly, and not mistakenly, distributed child pornography. Regardless,
“isolated inappropriate remarks by the prosecutor, in an otherwise fair trial, do not generally
justify reversal of a criminal conviction.” United States v. Cleveland, 907 F.3d 423, 439 (6th
Cir. 2018) (quoting United States v. Chalkias, 971 F.2d 1206, 1213 (6th Cir. 1992)). We find no
error.
No. 20-5722 United States v. Clark Page 16
3. Fabricated Invoices
Clark argues that the district court erroneously admitted fabricated invoices, which were
submitted by him in a prior court filing, as evidence of his consciousness of guilt. Clark argues
that the invoices were not sufficiently connected to him and, therefore, not probative of his state
of mind.
Prior to trial, Clark filed a motion in limine seeking to exclude evidence from the Acer
and Compaq computers that showed that child pornography existed on them as early as 2005.
Clark attached to the motion an affidavit from Margaret Allen (his mother-in-law) and two
invoices from a computer store. The attachments purported to show that Allen’s late husband
purchased the computers in 2009 and 2012, respectively, and that Clark did not receive them
until 2014. The district court denied the motion, however, after the government provided
evidence that the invoices were fabricated. At trial, the district court allowed the government to
admit the invoices and present testimony concerning their fabrication. The district court
instructed the jury that if they believed that the invoices were fabricated, such evidence could be
used to establish Clark’s consciousness of guilt. We review de novo the district court’s legal
determination that the evidence was admissible for a proper Rule 404(b) purpose, and we review
for abuse of discretion the district court’s Rule 403 determination. Rayborn, 495 F.3d at 342.
Rule 404(b). Typically, evidence of a defendant’s consciousness of guilt is admitted
under Rule 404(b) when he flees the scene, attempts to bribe or threatens adverse witnesses,
tampers with evidence, or expresses his suicidal ideations. United States v. Cody, 498 F.3d 582,
591 (6th Cir. 2007); United States v. Copeland, 321 F.3d 582, 598 (6th Cir. 2003); United States
v. Munnerlyn, 202 F. App’x 91, 95 (6th Cir. 2006). Fabricating evidence is a form of tampering
with evidence and the converse to spoliation of evidence. And as such, evidence of it is
admissible to prove a defendant’s consciousness of guilt.11 United States v. Snyder, 789 F.
App’x 501, 510–12 (6th Cir. 2019) (admitting evidence of defendant’s post-indictment loan
agreement to show potential fabrication of evidence and, thus, defendant’s consciousness of
11
Clark asks the court to employ a four-part test to determine the admissibility of the evidence. But that
test “has been limited to cases involving actual flight” and is therefore inapplicable to cases like this one involving
fabrication of evidence. United States v. Hickman, 766 F. App’x 240, 253 (6th Cir. 2019) .
No. 20-5722 United States v. Clark Page 17
guilt); see Copeland, 321 F.3d at 598 (“This court has held that evidence that has the tendency to
demonstrate a defendant’s consciousness of wrongdoing is admissible to establish the
defendant’s guilt.”).
Clark’s fabricated invoices were admissible under Rule 404(b) to show his consciousness
of guilt. Clark, through his attorney, filed the invoices as part of his motion in limine. See
Vermont v. Brillon, 556 U.S. 81, 90 (2009) (“[T]he attorney is the [defendant’s] agent when
acting, or failing to act, in furtherance of the litigation . . . .” (quotation omitted)). As presented,
the invoices were exculpatory and supported Clark’s defense. Clark knew the true timing of his
acquiring the computers, but he allowed the fabricated invoices to be used for his benefit. This
sufficiently “indicates [Clark’s] consciousness that his case is a weak or unfounded one.” See
United States v. Mendez-Ortiz, 810 F.2d 76, 79 (6th Cir. 1986) (quotation marks omitted). The
district court did not err in finding that these invoices were attributable to Clark and admitting
them to prove Clark’s consciousness of guilt.
Rule 403. Nor did the district court abuse its discretion under Rule 403. Rule 403
excludes relevant evidence when its probative value is substantially outweighed by its prejudicial
effect. Fed. R. Evid. 403. Clark’s reliance on illegitimate tactics is highly probative because it
tended to establish his state of mind and disprove his defense that a third party was responsible
for distributing child pornography. See United States v. Cordero, 973 F.3d 603, 620 (6th Cir.
2020) (“[C]ourts have observed that evidence tending to show consciousness of guilt frequently
bears upon a defendant’s intent and knowledge.”). The invoices were not overly inflammatory
and presented little danger of unfair prejudice in comparison to their “legitimate probative
force.” United States v. Schrock, 855 F.2d 327, 335 (6th Cir. 1988). Any prejudice resulting
from the invoices was limited by the court’s jury instruction, which clearly stated that the
invoices “may not be used for any other purpose,” and which was drafted in a way that allowed
“the jury [] to reach its own conclusion about the strength of the government’s fabrication
theory.” Snyder, 789 F. App’x at 513; see also Cordero, 973 F.3d at 621 (“The trial court’s
delivery of consistent, frequent, and accurate limiting instructions weighs against a finding of
unfair prejudice.”). Therefore, the district court properly weighed the evidence’s probative value
against its limited prejudicial effect and did not abuse its discretion.
No. 20-5722 United States v. Clark Page 18
4. Clark’s Computer Knowledge
Clark argues that the district court erroneously admitted evidence and permitted
testimony concerning his computer knowledge. During trial, the government called Cody
Thierauf to testify that Clark had a sophisticated knowledge of computers. Thierauf was a
longtime friend of Clark’s son and had spent a lot of time at Clark’s home during the years.
Thierauf testified that he was familiar with Clark’s computer knowledge and that, on one
occasion in 2017, he and Clark had a Facebook conversation in which Clark asked him how to
hack into a website and how to “edit an SQL file.” Over Clark’s objection, the district court
admitted screenshots of this Facebook conversation. We review de novo the district court’s legal
determination that the evidence was admissible for a proper Rule 404(b) purpose, and we review
for abuse of discretion the district court’s Rule 403 determination. Rayborn, 495 F.3d at 342.
Rule 404(b). Clark argues that Thierauf’s testimony and the Facebook exhibit were
improper Rule 404(b) evidence. This argument fails. The Facebook exhibit was admissible as
an admission of a party-opponent under Rule 801(d)(2) and not as Rule 404(b) evidence. Fed. R.
Evid. 801(d)(2), 404(b). Stated differently, the exhibit was not used as extrinsic evidence to
prove that Clark hacked a company’s website, but as an “incriminating admission” relevant to
Clark’s advanced computer skills. United States v. Bradshaw, 280 F. App’x 477, 480 (6th Cir.
2008). In the same way, Thierauf’s testimony was used for the relevant purpose of establishing
Clark’s level of computer expertise, not as Rule 404(b) evidence. See Fed. R. Evid. 402. Clark’s
level of computer expertise was relevant because it would make it more, or less, probable that he
possessed the technical ability to navigate peer-to-peer software. Moreover, Clark called his
computer skills into question when he made statements to law enforcement––that were later
played to the jury––suggesting that he was a technological novice. Therefore, we find no error
under Rule 404(b).
Rule 403. Clark also argues that the district court abused its discretion under Rule 403.
But in his opening brief, Clark does not specify how evidence of his computer knowledge would
cause unfair prejudice. Instead, he attacks the probative value of the evidence. He argues that
such evidence is “not relevant to the crimes at issue,” and later argues that it has minimal
probative value because “peer-to-peer programs do not require particularized or sophisticated
No. 20-5722 United States v. Clark Page 19
knowledge to operate.” The record does not support these arguments. The distribution of child
pornography via peer-to-peer file-sharing networks requires a high degree of technical ability.
And for the reasons stated above, Thierauf’s testimony and screenshots of his Facebook
conversation with Clark were highly probative of a crucial issue: Clark’s computer knowledge.
The probative value of this evidence was not substantially outweighed by its limited prejudicial
effect. We find no abuse of discretion.
5. The Limited Cross-Examination of Cody Thierauf
Clark claims that the district court violated his Sixth Amendment right by limiting his
cross examination of Cody Thierauf. At trial, Clark sought permission to cross-examine
Thierauf concerning Thierauf’s production and distribution of pornography depicting Thierauf
and his adult girlfriend. The district court did not permit this line of cross-examination, finding it
“inappropriate under [Rule 403].” We review the district court’s decision for abuse of discretion.
United States v. Callahan, 801 F.3d 606, 623 (6th Cir. 2015).
The Sixth Amendment protects a criminal defendant’s right “to be confronted with the
witnesses against him.” U.S. CONST. amend. VI. The Confrontation Clause guarantees
defendants an opportunity to cross-examine adverse witnesses about potential sources of bias,
prejudice, or motives to lie. Davis v. Alaska, 415 U.S. 308, 315–18 (1974). Nevertheless,
district courts retain “wide latitude” to impose “reasonable limits” on the scope of cross
examination due to concerns about “harassment, prejudice, confusion of the issues, the
witness[’s] safety, or interrogation that is repetitive or only marginally relevant.” Delaware v.
Van Arsdall, 475 U.S. 673, 679 (1986). But, of course, any such restriction “may not be
arbitrary or disproportionate to the purposes they are designed to serve.” Michigan v. Lucas,
500 U.S. 145, 151 (1991) (quoting Rock v. Arkansas, 483 U.S. 44, 56 (1987)).
Because Thierauf’s consensual sexual behavior with his adult girlfriend was not relevant,
the district court properly limited Clark’s proposed line of questioning. Van Arsdall, 475 U.S.
at 679; see, e.g., Farley v. Lafler, 193 F. App’x 543, 547 (6th Cir. 2006) (prohibiting a proposed
line of cross-examination that had “virtually no probative value”); United States v. Richards,
659 F.3d 527, 549 (6th Cir. 2011) (limiting the cross-examination of a witness’ prior sexual
No. 20-5722 United States v. Clark Page 20
encounter with minors because they were “of peripheral relevance,” even in a child pornography
case).
Clark claims that his cross-examination would have “impeach[ed] [Thierauf’s]
credibility” and revealed his improper motive for testifying against Clark. But because Clark
fails to specify how Thierauf’s perhaps embarrassing but nonetheless legal behavior relates to his
credibility or motive to lie, this argument lacks merit. See Callahan, 801 F.3d at 623 (“[The
Confrontation Clause] does not mean that the defendant is free to impeach a witness ‘in whatever
way, or to whatever extent the defense might wish.’” (quotations omitted)). Importantly, the
district court did not limit the cross examination of Thierauf entirely. Clark’s attorney was able
to question Thierauf about his “knowledge of peer-to-peer networking” and his “interest in or . . .
involve[ment] with . . . child pornography,” among other relevant information. Therefore, the
district court’s decision was not arbitrary, and it certainly was not disproportionate. See
Michigan, 500 U.S. at 151. The district court did not abuse its discretion in limiting Theirauf’s
cross-examination.
C. Fundamentally Fair Trial
Finally, Clark claims that the cumulative effect of the trial errors rendered his trial
fundamentally unfair. But because there were no trial errors, Clark’s claim of cumulative error
“fails for want of error.” United States v. Ledbetter, 929 F.3d 338, 365 (6th Cir. 2019).
III.
For the foregoing reasons, we AFFIRM the judgment of the district court.