United States v. Jeffrey Cox , 871 F.3d 479 ( 2017 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 17a0216p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
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> No. 16-2404
v. │
│
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JEFFREY DUANE COX, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:14-cr-00198-1—Robert J. Jonker, Chief District Judge.
Argued: June 21, 2017
Decided and Filed: September 14, 2017
Before: KEITH, BATCHELDER, and SUTTON, Circuit Judges.
_________________
COUNSEL
ARGUED: Scott Graham, SCOTT GRAHAM PLLC, Portage, Michigan, for Appellant. Sean
M. Lewis, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee.
ON BRIEF: Scott Graham, SCOTT GRAHAM PLLC, Portage, Michigan, for Appellant. Sean
M. Lewis, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee.
KEITH, J., delivered the opinion of the court in which BATCHELDER and SUTTON,
JJ., joined. SUTTON, J. (pp. 16–21), delivered a separate concurring opinion.
No. 16-2404 United States v. Cox Page 2
_________________
OPINION
_________________
DAMON J. KEITH, Circuit Judge. Defendant Jeffrey Duane Cox (“Cox”) was convicted
of seven counts of Sexual Exploitation of a Child and/or Attempted Sexual Exploitation of a
Child, in violation of 18 U.S.C. § 2251(a) and (e); and two counts of possession of child
pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). Defendant appeals his
convictions and sentence. For reasons that follow, we AFFIRM.
I. Background
Over the course of two years, Defendant, along with his two romantic partners, Brandon
Russell (“Russell”) and Michael Henry (“Henry”), engaged in sexual acts with eight children.
Defendant photographed and videotaped the children while engaging in the sexual acts. To
protect the identities of the children, we shall refer to them as Child/Children 1–8, consistent
with the terminology used by the parties in the district court, as well as the wording used in the
Third Superseding Indictment and the entirety of the record. Children 1–7 are male; Child 8 is
female.
Children 2 and 3 began frequenting Defendant’s home in the summer of 2012.
Defendant, Russell, and Henry engaged in sexual conduct with the children and photographed
their exploits. Contact with Children 2 and 3 ultimately ended after they refused to continue
visiting Defendant’s home.
Defendant’s illicit sexual conduct with Children 1, 7 and 8 began in the summer of 2013.
The children are siblings, and Defendant watched the children after school. At trial, through
closed-circuit television testimony, Child 1 testified that Defendant forced him to watch
pornographic videos, and threatened to kill Child 1’s family if he told anyone about the illicit
conduct. Child 1 further testified that Defendant: (1) performed manual genital stimulation on
Children 1 and 7; (2) inserted his penis into Child 1’s rectum; and (3) wiped his semen on Child
1’s chest. Child 1 was in the sixth grade at the time he delivered his testimony. Additionally,
Child 7, who was in the third grade at the time he delivered his closed-circuit television
No. 16-2404 United States v. Cox Page 3
testimony, stated that Defendant rubbed his buttocks on numerous occasions. The children’s
mother, Robin Spindlow (“Spindlow”), authenticated an illicit video that depicted Defendant and
Child 1 masturbating, and Defendant attempting to convince Child 1 to perform oral sex on him.
Children 4, 5, and 6 often visited the home of Defendant, starting in the summer of 2014.
Children 4 and 6 are brothers. Child 6 testified that Defendant provided the children with liquor
and cigarettes. Child 6 also testified that he and Children 4 and 5 would watch pornographic
videos with Defendant on Defendant’s bed. Russell testified that Children 4-6 would take
showers at Defendant’s home. Unbeknownst to the children, there was a hidden camera in the
bathroom. Defendant positioned the video camera at groin height, in such a way that it would
capture the genitals and pubic region of the children as they entered and exited the shower. The
video camera transmitted its images to a set of VCRs in Defendant’s bedroom. From these
videos, Defendant created a shorter video that cut out some of the “dead time.”
Ultimately, Children 1 and 7 informed their mother about the conduct occurring at
Defendant’s home, and Spindlow reported Defendant to the police. Consequently, an
investigation began, and on April 20, 2014, police executed a search warrant on Defendant’s
home and seized various electronics that captured Defendant’s sexual exploits on the children.
Defendant was charged with seven counts of Sexual Exploitation of a Child and/or Attempted
Sexual Exploitation of a Child, in violation of 18 U.S.C. § 2251(a) and (e); and two counts of
possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). At trial,
defense witnesses testified that Defendant engaged in activities at night that he would not be able
to remember, such as preparing food and talking in his sleep. The jury convicted Defendant on
all counts, and he was sentenced to 2,880 months. This timely appeal followed.
II. Applicable Law and Analysis
1. Closed Circuit Testimony
Defendant first asserts that the district court erred in allowing Children 1 and 7 to testify
by closed-circuit television, because “the evidence presented failed to establish a significant
likelihood that the witnesses would suffer trauma by testifying in open court.”
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The Sixth Amendment declares that “[i]n all criminal prosecutions, the accused shall
enjoy the right to . . . be confronted with the witness[es] against him.” This guarantee is not
absolute. In Maryland v. Craig, 497 U.S. 836 (1990), the Supreme Court declared that “if the
State makes an adequate showing of necessity, the state interest in protecting child witnesses
from the trauma of testifying in a child abuse case is sufficiently important to justify the use of a
special procedure that permits a child witness in such cases to testify at trial against a defendant
in the absence of face-to-face confrontation with the defendant.” Id. at 855. The Court held that
approval of the use of closed-circuit television testimony is a case-specific determination in
which the trial court must: “hear evidence and determine whether use of the [system] is
necessary to protect the welfare of the particular child [seeking] to testify”; “find that the child
witness would be traumatized, not by the courtroom generally, but by the presence of the
defendant”; and “find that the emotional distress suffered by the child witness in the presence of
the defendant is more than de minimis, i.e., more than mere nervousness or excitement or some
reluctance to testify.” Id. at 855–56 (internal citations and quotation marks omitted).
Consequently, in response to the Craig ruling, Congress passed 18 U.S.C. § 3509, “which sets
forth the conditions under which a child may testify by closed-circuit television.” United States
v. Moses, 137 F.3d 894, 898 (6th Cir. 1998). The statute states the following in relevant part:
(B) The court may order that the testimony of the child be taken by closed-circuit
television . . . if the court finds that the child is unable to testify in open court in
the presence of the defendant, for any of the following reasons:
(i) The child is unable to testify because of fear.
(ii) There is a substantial likelihood, established by expert testimony, that the
child would suffer emotional trauma from testifying.
(iii) The child suffers a mental or other infirmity.
(iv) Conduct by defendant or defense counsel causes the child to be unable to
continue testifying.
18 U.S.C. § 3509(b)(1)(B). Additionally, the statute requires the trial court to support its “ruling
on the child’s inability to testify with findings on the record.” 18 U.S.C. § 3509(b)(1)(C).
The district court conducted a motion hearing to determine whether there was an
adequate and case-specific showing of necessity for the use of closed circuit television for
Children 1 and 7. We review the factual findings of the district court for clear error. Moses,
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137 F.3d at 898 (citing Hernandez v. New York, 500 U.S. 352, 364 (1991)). Having reviewed the
record, we are persuaded that the district court did not err in concluding that the government
made an adequate showing of necessity.
The district court heard evidence from Clint Irwin (“Irwin”), a licensed professional
counselor in the state of Michigan. Irwin possesses a college degree in criminal justice and a
master’s degree in community counseling. At the time of the hearing, Irwin was pursuing a
doctorate degree in community counseling. Irwin testified to treating hundreds of children
suffering from some kind of sexual abuse, receiving specific training in the field of trauma, and
treating clients suffering from trauma as a result of sexual abuse.
Irwin treats Children 1 and 7. He stated to the court that forcing the children to testify in
the presence of open court would further add to their trauma. Defendant stated that, from a
clinical or psychological standpoint, the trauma suffered would be more profound than
nervousness or reluctance to testify. Additionally, Irwin stated that given Child 1’s history, his
emotional unrest and bad behaviors that resulted from the abuse endured at the hands of
Defendant would resurface should he be required to testify in the presence of Defendant.
Further, Irwin stated that Child 7 has a tendency to shut down and not communicate and
experiences difficulty discussing the sexual abuse inflicted on him by Defendant. Irwin stated
that Child 7’s communication issues, his trouble sleeping, and past failures with interventions
were symptoms of trauma from the sexual abuse he suffered and that Child 7 would regress back
into avoidance behavior and possibly “shut down on the stand” should he be forced to testify in
the presence of Defendant.
When the district court pressed Irwin on whether his testimony as to Children 1 and 7
was particularized, Irwin responded affirmatively, stating that the children displayed unique
personality characteristics, and have “uniqueness in their support structures,” leading him to
question their ability to testify in the presence of Defendant.
Thereafter, the district court had the opportunity to question the children, and the children
stated that it would be difficult to testify in Defendant’s presence. We are convinced that the
district court made a case-specific finding that the child witnesses would suffer substantial fear
No. 16-2404 United States v. Cox Page 6
and be unable to testify or communicate because of Defendant’s presence. The court determined
that there was a factual basis to support the use of closed-circuit testimony; that Irwin’s findings
as to the children were particularized; and that the opportunity to interview and observe the
children directly reinforced the court’s understanding of the expert’s conclusion that the risk of
trauma is substantially more likely in the presence of Defendant than it would be outside of his
presence. Further, the district court was persuaded by Irwin’s testimony that the children would
be traumatized by the presence of Defendant, that the emotional stress that would be endured
was more than de minimis, and that the closed-circuit television procedure was also necessary to
protect the welfare of children. The district court made an adequate case-specific showing of
necessity for the use of closed-circuit television.
2. Defendant’s Federal Rule of Evidence 403 Claim
Next, Defendant argues that the district court erred in admitting evidence pertaining to
Defendant’s: grooming activity, sexual assaults on children, activity with children, and attempted
production of child pornography. Specifically, at the final pretrial conference, the government
stated that it planned to introduce witness testimony from Children 1 and 7 that they witnessed
Defendant’s attempt to perform oral sex on their two-year old sister, Child 8, which resulted in
Child 8’s urinating in Defendant’s mouth. The district court gave a provisional ruling, in which
it stated that the government should be able to pursue this line of questioning. The district court
further stated that its decision was consistent with Federal Rules of Evidence 403 and 414, and
our holding in United States v. Seymour, 468 F.3d 378 (2006). Defendant asserts that Federal
Rule of Evidence 403 weighed against the admission of alleged cumulative evidence of sexual
misconduct. We disagree.
A district court’s evidentiary rulings are reviewed under the abuse of discretion standard.
Seymour, 468 F.3d at 386 (citation omitted). Further, when “reviewing challenges to evidence
based on Rule 403, we must give the evidence its maximum reasonable probative force and its
minimum reasonable prejudicial value.” Id. at 386 (citations and internal quotations omitted).
Rule 414 states that “[i]n a criminal case in which a defendant is accused of child
molestation, the court may admit evidence that the defendant committed any other child
No. 16-2404 United States v. Cox Page 7
molestation. The evidence may be considered on any matter to which it is relevant.” Fed. R.
Evid. 414(a). Evidence of similar crimes of child molestation, admissible under Rule 414, is
subject to Rule 403 analysis, which balances the probative value of relevant evidence against
potential unfair prejudice, confusion of the issues, and misleading of the jury. Fed. R. Evid. 403.
However, as the government asserts, the testimony regarding the defendant’s assault on Child 8
was never introduced and any limited testimony which may have referenced the incident or Child
8 at trial was never objected to by defense counsel. Even assuming that an objection to this
testimony had been properly raised at trial, as the district court properly explained, the evidence
of molestation that the government sought to present, which “involve[d] a child who is a sibling
of two of the named victims in the other substantive counts in a time frame that is also involved
with acts that the government intend[ed] to prove [D]efendant committed with respect to
[Children 1 and 7,]” was highly probative. Children 1, 7 and 8 were siblings and were assaulted
by Defendant in the presence of each other. The potential accounting of the abuse they endured
by watching Defendant rape their younger sister was connected to their own suffering and
therefore pertinent to the government’s case. Accordingly, we find no error, plain or otherwise.
3. Child 3’s Prior Consistent Statement
Defendant contests the district court’s admission of Agent Timothy Kruithoff’s
(“Kruithoff’) statement that Child 3 disclosed to him that Defendant had taken nude photographs
of Child 3, and that this disclosure was made before Kruithoff showed Child 3 the photographs.
Defendant also contests the admission of nude photographs of Child 3. We review a district
court’s evidentiary rulings for abuse of discretion.1 United States v. Chalmers, 554 Fed. App’x
440, 449 (6th Cir. 2014).
1
The government asserts that we should review the district court’s admission of the photographs for plain
error, consistent with our holding in United States v. Evans, 883 F.2d 496, 499 (6th Cir. 1989), because Defendant
purportedly objects to admission of the photographs on a basis different from that asserted at trial. (See Appellee Br.
at Pg. 41–42.) The government’s contention is immaterial, because Defendant’s claims fail under the less
deferential abuse-of-discretion standard.
No. 16-2404 United States v. Cox Page 8
a. Kruithoff’s Testimony
Child 3 testified that on two occasions he was served alcohol at Defendant’s home. On
the second occasion, he drank four large glasses of vodka cocktails. Child 3 also testified that
while drinking, Child 3 removed his clothes, Defendant touched his genitals, and the abuse was
photographed. During cross examination, Child 3 told defense counsel that he did not recall the
events of that night until he was shown photographs. On redirect examination however, Child 3
clarified that he recalled the events prior to being shown any photographs. Subsequently,
Kruithoff testified that, prior to Kruithoff showing Child 3 the images, Child 3 informed
Kruithoff that he was aware of the fact that nude photographs of him were taken.
Defendant argues that the statement did not qualify as a prior consistent statement and
that prior to admission of the statement, Child 3 had already been rehabilitated, so there was no
need to admit the statement. Kruithoff’s statement was admissible. Previously, a prior consistent
statement could only be admitted for the truth of the matter asserted to rebut a charge of recent
fabrication. See Fed. R. Evid. 801(d)(1)(B) (2011). However, in 2014, subparagraph (B) was
split into two clauses, including the new clause (ii), which allows prior consistent statements to
be admitted for the truth of the matter asserted if offered “to rehabilitate the declarant's
credibility as a witness when attacked on another ground.” Fed. R. Evid. 801(d)(1)(B) (ii). “The
intent of the amendment is to extend substantive effect to consistent statements that rebut other
attacks on a witness – such as the charges of inconsistency or faulty memory.” Fed R. Evid. 801
(Advisory Committee’s Note to 2014 Amendment). Defendant certainly attacked Child 3 on the
basis of a faulty memory: Defendant’s counsel stated to the district court that Child 3 did not
know about some of the photographs until after they were taken. Further, he stated to Child 3 “If
you think back about what actually happened that night, though, without [the] photos, [ ] you
really don’t remember.” Child 3’s statement to Kruithoff was a consistent statement that
rebutted Defendant’s attack on Child 3’s purportedly faulty memory, and therefore, the district
court’s admission of the testimony was proper.
No. 16-2404 United States v. Cox Page 9
b. Photographs of Child 3
Regarding the photographs, Child 3 testified that photographs of Defendant touching
Child 3’s genitals were taken by Defendant and Russell while Child 3 was intoxicated.
Defendant argues that because Child 3 may not have realized that the photographs were taken
until after the fact, the government could not rely on his testimony to lay a foundation for their
admission. We disagree. Parties may authenticate evidence through “testimony of a witness
with knowledge . . . that an item is what it is claimed to be.” Fed. R. Evid. 901(b)(1); United
States v. Kessinger, 641 Fed. Appx. 500, 505 (6th Cir. 2016). Defendant argues that Child 3
“had no memory of the nights, so he could not have had knowledge of the nights and their
representation in the photographs.” While Child 3 initially stated that he could not recollect the
events of the night without the photographs, he later clarified his testimony by stating that that he
was able to recall the events of the night prior to being shown any pictures of the night. His
testimony was thereafter corroborated by Kruithoff. Further, Child 3 has personal knowledge of
his appearance, as well as Defendant’s appearance and the location because he visited Defendant
at his home on numerous occasions. For these reasons, we find that Defendant had knowledge
rendering him able to identify himself and Defendant in the illicit photographs, consistent with
Rule 901(b). The district court therefore did not abuse its discretion in admitting the
photographs.
4. Defendant’s Photo Album
During direct examination of Defendant, when defense counsel inquired into whether
Defendant had knowingly touched the children inappropriately or had knowingly taken photos of
his illicit conduct, Defendant replied “No, I did not. I’m not into taking any type of pictures.
Even porn pictures. I don’t even like them taken of myself.” Thereafter, during cross
examination, Defendant conceded to the fact that he was the person in a video that was shown to
the jury, in which he masturbated with Child 1 and attempted to get Child 1 to perform oral sex
on him. Yet, when pressed on his statement that he was not into taking pictures or pornographic
pictures, he again responded negatively. Thereafter, the government sought and was granted
admission of Defendant’s photo album into evidence; however, the album was not published to
the jury. The photo album was titled “Chris and Jeff nude pictures.”
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At trial, Defendant objected to the introduction of the photo album into evidence,
asserting the following: “I object to Exhibit 14. I’m not sure what’s – well, I think I know what
it’s going to be used for, and I think it’s an improper purpose.” However, on appeal, Defendant
attacks the introduction of the album into evidence because it was irrelevant, not authenticated,
and highly prejudicial. When a “party objects to the submission of evidence on specific grounds
in the trial court, but on appeal the party asserts new grounds challenging the evidence,” we
review for plain error. United States v. Evans, 883 F.2d 496, 499 (6th Cir. 1989).
“To satisfy the requirement of authenticating or identifying an item of evidence, the
proponent must produce evidence sufficient to support a finding that the item is what the
proponent claims it is.” Fed. R. Evid. 901(a). Further, “[t]he court may exclude relevant
evidence if its probative value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time,
or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. The district court did not
abuse its discretion by admitting the photo album into evidence. Defendant’s assertions to the
contrary are meritless.
The photographs were relevant to the government’s case. Defendant claimed that he did
not photograph his illicit conduct. To bolster his claim, he made a blanket assertion that he
“wasn’t into taking pictures,” and he didn’t like nude photographs taken of himself. As a result
of this testimony, the photo album was certainly pertinent, since admission of the album arguably
disproved Defendant’s assertion. Defendant kept the nude photos taken of himself and a former
boyfriend, and even labeled the album. Objectively, Defendant’s behavior is not typical of
someone who does not like to be photographed naked, or nude photographs in general.
Defendant argues that because of the graphic nature of the photographs, the photographs were
unfairly prejudicial because their content could have angered the jury. However, the
photographs were not shown to the jury, and as the government asserts, the mere “discussion of
[the photographs] in the record hardly eclipsed the nature of the charged conduct – which
included the creation of a video showing [Defendant] engaged in sexual activity with a ten-year-
old.”
No. 16-2404 United States v. Cox Page 11
Further, Rule 901(a) was satisfied. Defendant’s testimony supported the finding that the
item is what it was claimed to be. Defendant recognized the photo album as his own; thus, he
certainly knew the contents of the album. Further, after the album was admitted, Defendant
confirmed that the photos in the album were nude photos of himself, and that he was aware that
the photos had been taken at the time. Accordingly, we find that the district court did not err in
admitting the photographs.
5. Admissibility of Henry’s Prior Statements
When the district court qualified Henry as an unavailable witness, Defendant sought
admission of certain statements Henry made to federal agents. The district court denied the
introduction of the proffered statements into evidence, having determined that the statements
were not statements against interest under Rule 804(b)(3). On appeal, Defendant asserts that the
district court erred in failing to admit the statements, because the statements are against Henry’s
penal interest and that the denial of admissibility deprived Defendant of a meaningful
opportunity to present a complete defense, in violation of the Sixth Amendment. We review a
district court’s decision to admit or exclude statements under Rule 804 for abuse of discretion.
United States v. Johnson, 581 F.3d 320, 326 (6th Cir. 2009).
Statements against a declarant’s penal interest are not excluded by the rule against
hearsay if the declarant is unavailable as a witness. Fed. R. Evid. 804(b). A statement against
interest includes any statement which, at the time of its making, “a reasonable person in the
declarant’s position would have made only if the person believed it to be true because . . . it was
so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to
invalidate the declarant’s claim against someone else or to expose the declarant to civil or
criminal liability.” Fed. R. Evid. 804(b)(3)(A). “The fact that a statement is self-inculpatory
does make it more reliable; but the fact that a statement is collateral to a self-inculpatory
statement says nothing at all about the collateral statement’s reliability.” Williamson v. United
States, 512 U.S. 594, 600 (1994). Rule 804(b)(3) “does not allow admission of non-self-
inculpatory statements, even if they are made within a broader narrative that is generally self-
inculpatory.” Id. at 600–01. “The district court may not just assume . . . that a statement is self-
No. 16-2404 United States v. Cox Page 12
inculpatory because it is part of a fuller confession, and this is especially true when the statement
implicates someone else.” Id. at 601.
Defendant sought to introduce the following statements made by Henry to federal agents:
(1) that Henry lived with Defendant for “a short while in 2013 to 2014”; (2) that Henry installed
cameras at Defendant’s residences; (3) that Henry “does computer work on the side”; (4) that
Henry reformatted computers for Defendant; (5) that Henry set up a DVR system in Defendant’s
bedroom; (6) that Henry used Defendant’s computers at Defendant’s home; (7) that Henry stated
to a federal agent “I’m big with tech stuff”; (8) that Henry claimed that he did not know Child 2
and had “never heard of him”; and (9) that Henry “met Child 3 on one occasion on the street.”
We find that the district court did not abuse its discretion in refusing to admit the proffered
statements. Defendant appears to argue that because Henry invoked his Fifth Amendment rights,
we should assume that the statements are against his penal interests. Defendant’s reasoning is
contrary to the requisite analysis required by the Supreme Court. “[W]hen ruling upon a
narrative’s admissibility under this rule, a court must break it down and determine the separate
admissibility of each ‘single declaration or remark.’” U.S. v. Canan, 48 F.3d 954, 959 (6th Cir.
1995) (quoting Williamson, 512 U.S. at 599). This means that a court, “when determining the
admissibility of a narrative, must examine it sentence by sentence,” in order to determine what
sentences are self-inculpatory and what sentences are collateral. Id. at 960 (emphasis added).
Defendant fails to articulate how each declaration was self-inculpatory. Having reviewed the
statements, we, like the district court, conclude that Henry’s separate declarations are either
innocuous, or attempts to exculpate and shift blame to others, and were therefore not admissible
under the statement-against-interest exception to hearsay. Further, Defendant’s argument that
deeming the statements inadmissible hearsay denied Defendant the right to present a complete
defense in violation of the Sixth Amendment is meritless. While “the Constitution guarantees
criminal defendants a meaningful opportunity to present a complete defense” a defendant does
not have “an unfettered right to offer evidence that is incompetent, privileged, or otherwise
inadmissible under standard rules of evidence.” United States v. Blackwell, 459 F.3d 739, 753
(6th Cir. 2006) (citations and brackets of internal quotation marks omitted). Accordingly, we
hold that the district court did not abuse its discretion in denying the separate admissibility of
each statement made by Henry.
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6. Sufficiency of the Evidence
Next, Defendant asserts that there is insufficient evidence to support his criminal
conviction. We summarily address this argument. “When reviewing a criminal conviction for
sufficiency of the evidence, we ask ‘whether, 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.’” United States v. Tragas, 727 F.3d 610, 617 (6th Cir.
2013) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). “All reasonable inferences and
resolutions of credibility are made in the jury’s favor.” Id. (quoting United States v. Washington,
702 F.3d 886, 891 (6th Cir. 2012)). “A convicted defendant bears ‘a very heavy burden’ to show
that the government’s evidence was insufficient.” Id. (quoting United States v. Kernell, 667 F.3d
746, 756 (6th Cir. 2012)).
Defendant was convicted of seven counts of Sexual Exploitation of a Child and/or
Attempted Sexual Exploitation of a Child, in violation of 18 U.S.C. § 2251(a) and (e); and two
counts of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) and
(b)(2). Juries have “broad discretion in deciding what inferences to draw from the evidence
presented at trial, requiring only that jurors ‘draw reasonable inferences from basic facts to
ultimate facts.’” Coleman v. Johnson, 132 S. Ct. 2060, 2064 (2012) (per curiam) (quoting
Jackson, 443 U.S. at 319). The jury was shown photographic and video evidence of Defendant
engaged in illicit sexual acts with the children. The children, Russell, and even Defendant,
testified to the fact that Defendant engaged in the conduct he was charged with. Defendant also
confirmed his identity in a video, shown to the jury, which captured Defendant and Child 1
masturbating, and Defendant attempting to persuade Child 1 to perform oral sex on Defendant.
Although Defendant asserts that: sometimes he could not remember the acts he engaged in; he
lacked the requisite mens rea for some of the offenses; he was unaware of the existence of any of
the images enumerated in Counts 1 through 7; and the nude photographs of the children did not
qualify as “lascivious,” the trial transcript, as described at length and in graphic detail in the
preceding paragraphs, is replete with evidence to the contrary that the jury was able to rely on in
rendering its verdict. Defendant fails to demonstrate that no rational trier of fact could have
No. 16-2404 United States v. Cox Page 14
agreed with the jury. Accordingly, we find that the evidence was sufficient for the jury to
convict Defendant of the charges.
7. Substantive Reasonableness of Defendant’s Sentence
Lastly, Defendant asserts that his sentence was substantively unreasonable, due to the
length of the sentence, and because there are other individuals who have committed similar
offenses and received shorter sentences. When reviewing the substantive reasonableness of a
sentence under an abuse-of-discretion standard, we “‘tak[e] into account the totality of the
circumstances, including the extent of any variance from the Guidelines range.’” United States
v. Sandoval, 501 F. App’x 491, 492 (6th Cir. 2012) (quoting Gall v. United States, 552 U.S. 38,
51 (2007)). “The essence of a substantive-reasonableness claim is whether the length of the
sentence is ‘greater than necessary’ to achieve the sentencing goals set forth in 18 U.S.C.
§ 3553(a).” Id. (quoting United States v. Tristan-Madrigal, 601 F.3d 629, 632–33 (6th Cir.
2010)). “For a sentence to be substantively reasonable, it must be proportionate to the
seriousness of the circumstances of the offense and offender, and sufficient but not greater than
necessary, to comply with the purposes of § 3553(a).” United States v. Curry, 536 F.3d 571, 573
(6th Cir. 2008) (internal citation and quotation marks omitted).
Defendant was found guilty on Counts 1 through 9 of the Third Superseding Indictment
after asserting a plea of not guilty and was sentenced to “a total term of two thousand eight
hundred eighty (2,880) months, consisting of three hundred sixty (360) months on each of
Counts [1] through [7], two hundred forty (240) months on Count [8], and one hundred twenty
(120) months on Count [9], all terms to be served consecutively, to ensure a guideline sentence
of life in prison.” Defendant’s sentence was within the guidelines. This court applies a
rebuttable presumption of reasonableness in cases involving within-guidelines sentences. See
United States v. Conatser, 514 F.3d 508, 520 (6th Cir. 2008) (“A properly calculated within-
guidelines sentence will be afforded a rebuttable presumption of reasonableness on appeal.”).
This presumption is not binding; rather, it “reflects the fact that, by the time [we] consider[ ] a
within-Guidelines sentence on review, both the sentencing judge and the Sentencing
Commission . . . have reached the same conclusion as to the proper sentence in the particular
No. 16-2404 United States v. Cox Page 15
case.” Rita v. United States, 551 U.S. 338, 347 (2007) (emphasis in original). “That double
determination significantly increases the likelihood that the sentence is a reasonable one.” Id.
Defendant fails to rebut the presumption that his sentence is substantively reasonable. He
sets the basis of this contention on two dissimilar cases – United States v. Studabaker, 578 F.3d
423 (6th Cir. 2009) and United States v. Richards, 659 F.3d 527 (6th Cir. 2011) – in which
defendants received lesser sentences. Defendant claims these cases serve as “more general
comparisons,” demonstrating the unreasonableness of his sentence and that a lesser sentence
would better serve his case. Defendant also asserts that consistent with 18 USC § 3353(a)(6),
sentencing courts should strive to eliminate unwarranted sentencing disparity. Defendant’s
argument is meritless. We have repeatedly “criticized the comparison of the defendant’s
sentence to those imposed in other singular cases as weak evidence to show a national sentencing
disparity.” United States v. Rossi, 422 F. App’x 425, 435 (6th Cir. 2011). Moreover, “the fact
that the appellate court might reasonably have concluded that a different sentence was
appropriate is insufficient to justify reversal of the district court.” United States v. Reilly,
662 F.3d 754, 759 (6th Cir. 2011) (quoting Gall, 552 U.S. at 51). Having reviewed the record,
we are confident that the district court understood its discretion to make a departure and declined
to do so, having considered the § 3553(a) factors and the totality of the circumstances when
imposing its sentence. Therefore, Defendant’s sentence was substantively reasonable.
III. Conclusion
Accordingly, for the above-mentioned reasons, we AFFIRM the convictions and
sentence of the district court.
No. 16-2404 United States v. Cox Page 16
_________________
CONCURRENCE
_________________
SUTTON, Circuit Judge, concurring. I join Judge Keith’s thoughtful opinion in full.
I write separately to note the pushing tendencies of one line of Confrontation Clause precedents
and the pulling tendencies of another. Here is what the Confrontation Clause says: “In all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him.”
Maryland v. Craig asked whether this language permitted States to deny criminal
defendants the right to confront child witnesses face to face when they provide testimony against
them at trial via one-way closed-circuit television. 497 U.S. 836 (1990). A 5–4 majority held
that States could do just that when the “denial of such confrontation is necessary to further an
important public policy and only where the reliability of the testimony is otherwise assured.” Id.
at 850.
Fourteen years later, Crawford v. Washington asked whether a court could admit an
unavailable witness’s statement, made without face-to-face confrontation or opportunity for
cross-examination, if it had “adequate indicia of reliability.” 541 U.S. 36, 42 (2004). A 7–2
majority gave an unqualified no. It was not willing to “replac[e] categorical constitutional
guarantees with open-ended balancing tests” based on “amorphous notions of ‘reliability.’” Id.
at 61, 67–68.
Crawford did not overturn Craig. And Craig governs us here, as junior courts may not
overrule the handiwork of their superiors.
But the two opinions would give Janus a run for his money. Consider how they treated
another decision of the Court: Ohio v. Roberts, 448 U.S. 56 (1980). Craig relied heavily, indeed
almost entirely, on Roberts to justify its decision. 497 U.S. at 846–50. But Crawford overruled
Roberts with respect to testimonial statements. 541 U.S. at 60–69.
No. 16-2404 United States v. Cox Page 17
Or consider how the two opinions characterized the Confrontation Clause guarantee.
Craig treated the Clause as a safeguard for evidentiary reliability as measured by the judge in
that case and today’s rules of evidence. See 497 U.S. at 849. But Crawford held that it was a
procedural guarantee that “commands, not that evidence be reliable, but that reliability be
assessed in a particular manner: by testing in the crucible of cross-examination” in front of the
accused. 541 U.S. at 61.
Or consider how the opinions treated a defendant’s right to face-to-face confrontation
with the witnesses against him. Craig said that the “face-to-face confrontation requirement is
not absolute.” 497 U.S. at 850. But Crawford said that a face-to-face meeting between an
accuser and the accused was an essential part of the confrontation right. 541 U.S. at 43–45.
“Dispensing with confrontation because testimony is obviously reliable,” Crawford observed, “is
akin to dispensing with jury trial because a defendant is obviously guilty.” Id. at 62.
Or consider the methodology of each opinion. Craig looked to the “growing body of
academic literature documenting the psychological trauma suffered by child abuse victims who
must testify in court” to identify new exceptions to the right to face-to-face confrontation.
497 U.S. at 855. But Crawford looked to the original publicly understood meaning of
confrontation to determine when the exception-free words of the guarantee (“[i]n all criminal
prosecutions”) should have exceptions. 541 U.S. at 42–50.
Or consider how each opinion describes the relationship of the Clause to the rules of
evidence. Craig worried that adherence to the words of the guarantee was “too extreme” and
would “abrogate virtually every hearsay exception” developed by the rules of evidence up to that
point. 497 U.S. at 848 (quoting Roberts, 448 U.S. at 63). But Crawford refused to rely on “the
law of evidence” at the time of the trial because it “would render the Confrontation Clause
powerless to prevent even the most flagrant inquisitorial practices.” 541 U.S. at 51.
Or consider each opinion’s view of exceptions to the guarantee. Craig offered no hint
that there was any limit to the kinds of exceptions that the Roberts balancing test would allow
then or in the future. But Crawford carefully identified the kinds of exceptions that might be
No. 16-2404 United States v. Cox Page 18
allowed under its approach and conspicuously never mentions Craig as one of them. See id. at
53–55.
I am not the first person to acknowledge that the two decisions face in different
directions. See, e.g., State v. Jackson, 717 S.E.2d 35, 39 (N.C. Ct. App. 2011); Coronado v.
State, 351 S.W.3d 315, 321 (Tex. Crim. App. 2011); United States v. Pack, 65 M.J. 381, 384
(C.A.A.F. 2007); David M. Wagner, The End of the “Virtually Constitutional,” 19 Regent U.L.
Rev. 469 (2007); Marc C. McAllister, The Disguised Witness and Crawford’s Uneasy Tension
with Craig, 58 Drake L. Rev. 481, 507–512 (2010); Children as Witnesses: A Symposium,
82 Ind. L.J. 909 (2007). In its brief in Crawford, the Solicitor General for the United States
warned that the “categorical approach” sought by the criminal defendant in Crawford was
“incompatible” with Craig. Brief for the United States as Amicus Curiae at 20–21, Crawford v.
Washington, 541 U.S. 36 (2004) (No. 02-9410).
Some intrepid courts have tried to reconcile Craig and Crawford. See, e.g., People v.
Gonzales, 281 P.3d 834, 863 (Cal. 2012); State v. Vogelsberg, 724 N.W.2d 649, 654 (Wis. Ct.
App. 2006). I for one am not convinced by their efforts. To respect the one decision slights the
other.
This is not an idle matter, as the stakes of today’s case confirm. When courts hand out
2,880-month sentences for criminal convictions, all within the recommended range of the
Sentencing Guidelines and all authorized by the relevant statutes, it’s fair to say that society
deems the underlying conduct heinous. As well it should when it comes to the sexual abuse of a
child. But just as the Bill of Rights protects speech we hate, it protects those suspected of
conduct we despise, whether child abuse (as in Craig and here) or attempted murder (as in
Crawford). Sex offenders have free-speech rights. See Packingham v. North Carolina, 137 S.
Ct. 1730 (2017). And suspected sex offenders, like all suspects of crime, are entitled to a slew of
constitutional procedural protections, the right to confrontation among the foremost. Given the
lengthy prison sentences that convicts in this area often face, the lifetime monitoring of their
movements usually required after their release, and the stigma attached to their crimes, the
marked contrast between the confrontation rights provided to most criminal suspects under
Crawford and to sex-offender suspects under Craig deserves a justification. The right to
No. 16-2404 United States v. Cox Page 19
confront a witness usually is the chief protection against a false accusation. How can we
guarantee the full effect of that protection when two lines of cases, both purportedly good law,
dispute the nature and reach of the Clause that guarantees it?
At a minimum, a few questions deserve consideration by the Court. How can Craig
survive in the absence of the Roberts balancing test? Perhaps stare decisis should save Craig.
The premise of stare decisis after all is that some wrongly decided decisions should stand in the
interests of stability. But it is easy to imagine one class of criminal defendants wondering why
stare decisis should save Craig but did not save Roberts.
Maybe Craig could survive as an exception under the Crawford approach? Crawford
noted that the Confrontation Clause is “most naturally read as a reference to the right of
confrontation at common law, admitting only those exceptions established at the time of the
founding.” 541 U.S. at 54. But at this point I am not aware of any historical exceptions rooted
in the common law or fairly analogous to exceptions rooted in the common law that would
support Craig.
How essential is face-to-face confrontation under the Confrontation Clause? Craig
acknowledged that it is important but could be balanced away. 497 U.S. at 856–57. In his Craig
dissent, Justice Scalia disagreed, noting that “whatever else it may mean,” “‘to confront’ plainly
means to encounter face-to-face.” Id. at 864. In Crawford, he reiterated the view he expressed
in Craig. 541 U.S. at 42–45, 57–60. “Virtual confrontation might be sufficient to protect virtual
constitutional rights.” Order of the Supreme Court, 207 F.R.D. 89, 93 (2002) (Scalia, J.). But
does it suffice “to protect real ones”? Id. The question deserves an answer.
Even on Craig’s own terms (in truth, Roberts’ terms), did the Court correctly frame the
balancing of interests? Craig permitted Maryland to balance the right of the child witness to
avoid trauma against the right of the defendant to confront the witness. Is that the correct
question? Requiring the prosecutor either to prove the allegation by confronted witnesses (or
other evidence) or to drop the charge is just as plausible a way to think about it. Wouldn’t that
approach benefit both the child, who often would not have to suffer the trauma of testimony, and
No. 16-2404 United States v. Cox Page 20
the defendant, who would not lose an opportunity to confront an accuser face to face, which even
Craig recognized as a right not lightly abandoned? See 497 U.S. at 850.
What does the current psychological literature say about the ordeal of reliving such
horrifying events? And what kind of differences, incremental or otherwise, are there between
reliving these experiences in front of the lawyers and court officials and social workers (as still
required under Craig) as well as the assailants (as potentially required under Crawford)? Do the
benefits of Craig still outweigh its costs according to today’s psychologists?
What would be the practical impact of overruling Craig? A child’s testimony no doubt
may facilitate efforts by the State to convict individuals of family violence and molestation. But
it often is not the only evidence available. Look no further than this case for an example. The
government points to Cox’s library of child pornography, the groin-height cameras he set up in
the bathroom, a lewd video involving Cox and a young child, and the trial testimony of older
victims (then between the ages of 13 and 21) who were cross-examined in Cox’s presence. See
R. 186 at 1019–30; R. 187 at 1085; R. 188 at 151. Yes, the prosecutors might not have obtained
a 240-year sentence without Craig. But there was plenty of evidence to convict Cox of many
crimes.
No doubt, cases of sexual abuse and domestic violence may arise in which the child’s
testimony is the primary, even the only, evidence available. But which way does that cut? Is the
point of Craig to make it easier to convict suspects of certain crimes? To mark the defendant’s
cards in advance through an unusual closed-circuit television used only when the victim
testifies? The crucible of cross-examination, carried out in the company of the accused without
the assistance of guilt-suggestive technology, still seems to be the best way to test whether a
defendant should suffer decades in prison and a lifetime condemned as a sex offender based on
witness testimony.
Those accused of sexually abusing children, it’s fair to say, are not sympathetic
defendants. But Crawford explained that the Framers drafted the Confrontation Clause to ensure
that those accused of the worst crimes have the opportunity to prove their innocence through a
specific, time-tested procedure. Craig is in tension with, if not in opposition to, that holding.
No. 16-2404 United States v. Cox Page 21
And yet, both decisions stand. American judges and lawyers and citizens often take great pride
in talking about the constitutional protections we accord individuals suspected of the most
offensive crimes. I sometimes wonder if we mean it.