United States v. Bradley Cox ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-1744
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BRADLEY M. COX,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Fort Wayne Division.
No. 18-cr-00083 — Holly A. Brady, Judge.
____________________
ARGUED OCTOBER 25, 2022 — DECIDED NOVEMBER 23, 2022
____________________
Before SYKES, Chief Judge, and FLAUM and LEE, Circuit
Judges.
FLAUM, Circuit Judge. A jury convicted Bradley Cox of sex-
torting and exploiting multiple victims, including minors,
and receiving child pornography. Cox now raises several is-
sues for our consideration. On the constitutional front, Cox
claims Fourth Amendment violations based on the FBI
agents’ warrantless search, Fifth Amendment violations
based on the agents’ failure to give Miranda warnings during
2 No. 21-1744
two interrogations, and Sixth Amendment violations based
on the district court’s evidentiary and procedural decisions.
In addition, Cox argues that the government did not intro-
duce sufficient evidence to support his convictions. We affirm
on all counts.
I. Background
In 2018, the FBI was alerted to a predatory scheme involv-
ing various Facebook accounts and (apparently) many vic-
tims. This case concerns four particular victims, two of them
minors. For three of the victims, the pattern was similar. The
perpetrator reached out using a Facebook account under a
false name and directed the victims to contact the same, unfa-
miliar phone number. He informed the victims that he had
nude photos of them, taken from the stash of a Facebook ac-
count he had previously “hacked.” He said he would leak the
photos if the victims did not meet his demands—chiefly,
sending more explicit material. When they did not comply, he
followed through on his threat. The fourth victim was a mi-
nor. After making contact through Facebook, the perpetrator
took a slightly different tact; he never gave the victim the
phone number to contact and did not have photos from the
other account to use as blackmail. All the same, he manipu-
lated and bullied her until she sent him explicit material. The
perpetrator did not tell any of the victims his real name.
Special Agent Jason Stewart led the FBI’s investigation.
Eventually, the FBI tracked the internet address associated
with some of the offending messages to a family business
called Burns Construction Company, where Bradley Cox
worked. Stewart and his colleague, Special Agent Joseph
Gass, made their way over to Burns Construction without a
No. 21-1744 3
search warrant. Upon arriving, they spoke with Michael
Burns, a part-owner of the company. The agents asked if they
could search and image the computer in Cox’s office, and
Burns agreed. (Cox had already left for the day.) The com-
puter’s browsing history contained traces of a specific “Vir-
tual Private Network” (VPN). Generally speaking, VPNs can
facilitate discreet internet browsing by disguising the user’s
identity. The same VPN found on Cox’s work computer had
been used to cover up the perpetrator’s tracks in this case.
Right after leaving Burns Construction, Stewart and Gass
made their way to Cox’s home. Cox agreed to speak with
them outside. It was evening. The agents assured Cox that he
could end the conversation at any time and that he would not
be arrested that night. When Cox proposed helping the FBI
investigate the broader sextortion network in exchange for le-
niency, the agents responded that such an arrangement was
out of their control. Cox still decided to talk. He made numer-
ous incriminating statements. Among other things, Cox ad-
mitted to accessing certain of the offending Facebook ac-
counts, owning the phone number that three of the victims
had contacted, using the VPN found on the work computer,
and messaging some of the victims. Also, Cox agreed to let
the agents take his personal laptop, which Gass retrieved
from the house. The agents left after a couple hours.
The next day, Stewart and a local police detective went
back to Burns Construction to return the now-imaged work
computer. While there, they spoke with Cox, who made more
incriminating statements. Cox admitted to other communica-
tions with the victims and showed them his online storage
system, which contained many explicit images.
4 No. 21-1744
A couple weeks later, Cox was arrested. A grand jury
charged him with three counts of extorting people with
threats to share their sexually explicit images (18 U.S.C.
§ 875), two counts of coercing (or attempting to coerce) mi-
nors to engage in sexually explicit conduct, resulting in a vis-
ual depiction, (Id. § 2251), and one count of receiving child
pornography (Id. § 2252A). During pretrial proceedings, Cox
decided to represent himself pro se. His appointed counsel
stayed on in a standby role.
The government’s trial strategy centered on Cox’s confes-
sions and a slew of forensic, technical evidence. For instance,
the government aligned his internet usage at home, during
his commute, and at work with the activity of the phone num-
ber that had sent many of the extortionist messages. Shianna
Waller’s testimony also played an important role. Waller had
been in contact with one of the offending Facebook accounts
and was soon recruited to help collect explicit images. She tes-
tified that she had arranged to meet the user of the account in
person and, when a car arrived to pick her up, Cox was be-
hind the wheel.
For his part, Cox’s primary defense was shifting the blame
to others. In his own words to the jury, “If someone else did
it, then Bradley Cox didn’t.” As Cox would tell it, although
that “someone” could have been multiple people, the most
important suspect of all was David Kilcline. Kilcline had po-
tential ties to the broader sextortion scheme. Waller testified
about Kilcline’s affiliation with one of the offending accounts,
and Stewart had even interviewed him at one point. Yet
Kilcline himself did not testify.
No. 21-1744 5
Faced with this evidence, the jury convicted Cox on all
charges. Cox filed a couple post-trial motions, which the dis-
trict court denied. He then appealed.
II. Discussion
Cox brings myriad arguments predicated on alleged vio-
lations of the Fourth, Fifth, and Sixth Amendments, as well as
an argument that there was insufficient evidence to support
the jury’s verdict. We address each issue below.
Fourth Amendment
First, Cox contends that Stewart and Gass violated his
Fourth Amendment rights by searching his work computer
(and his office, where the computer was located) without a
warrant and that the district court should have suppressed
any evidence obtained as a result. The government responds
that Cox waived this argument.
Motions to suppress must be made before trial “if the basis
for the motion is then reasonably available.” Fed. R. Crim. P.
12(b)(3)(C). When a party fails to meet this deadline, courts
may still consider the issue upon a showing of good cause for
the party’s tardiness. Id. R. 12(c)(3). When the party further
fails to present good cause to the district court, “we examine
whether, if a motion for relief had been made and denied, the
district court would have abused its discretion in concluding
that the defense lacked good cause.” United States v. Vizcarra-
Millan, 15 F.4th 473, 500 (7th Cir. 2021) (quoting United States
v. Adame, 827 F.3d 637, 647 (7th Cir. 2016)), cert. denied sub nom.
Grundy v. United States, 142 S. Ct. 838 (2022). This review is
“hyper-deferential.” Id.6 No. 21-1744
Cox did not timely present his motion to suppress evi-
dence related to the warrantless search. Rather, in the middle
of cross-examining Burns at trial—to be precise, right after
Burns said he consented to the agents’ search—Cox asked for
a sidebar. At that point, Cox orally moved to suppress “any
evidence obtained from the work computer.” The court de-
nied his motion as untimely. Cox asked for and received an-
other sidebar, but the court rebuffed him again.
Cox never provided good cause to the district court for his
untimeliness. He points out on appeal that the court did not
give him much of an opportunity to present good cause, and
this is true—to an extent. Although the court did quickly deny
Cox’s motion as untimely without mentioning a good-cause
exception, Cox consulted with his standby counsel before the
second sidebar. In these circumstances, it is not unreasonable
to burden Cox with raising good cause himself.
We therefore review Cox’s hypothetical good-cause prof-
fer under the abuse-of-discretion standard. See Vizcarra-Mil-
lan, 15 F.4th at 500. On appeal, Cox provides two explanations
for his failure to timely file the suppression motion. Mainly,
he says that, as a pro se litigant, he should be held to a lower
bar than we would otherwise impose. We do tend to apply
more liberal standards to litigants proceeding pro se, includ-
ing (maybe especially) in the procedural context. See, e.g.,
Blitch v. United States, 39 F.4th 827, 833 & n.2 (7th Cir. 2022)
(concluding that the defendant’s pro se status “tip[ped] the
scales” in his favor for a close procedural call). That said, “pro
se litigants are generally subject to the same waiver rules as
those who are represented by counsel.” Johnson v. Prentice,
29 F.4th 895, 903 (7th Cir. 2022).
No. 21-1744 7
In United States v. Young, 955 F.3d 608 (7th Cir. 2020), this
Court rejected an argument like the one Cox makes now. The
defendant in that case contended that the district court should
suppress evidence from a search, but only did so “during the
trial after the prosecution introduced the evidence.” Id. at 615.
We disagreed that the defendant’s pro se status justified his
untimely motion, citing his discussions with his attorney be-
fore going pro se and the “several other pretrial motions” he
filed afterwards. Id. As such, we held that the district court
had not abused its discretion by denying the motion. Id.Here, Cox filed his first motion to suppress before he de-
cided to proceed pro se. His previous attorney remained on as
standby counsel even after Cox went pro se. What is more, Cox
then filed more motions to suppress before the trial. His
demonstrated ability to comply with the pretrial deadline un-
dermines his argument that he should now be afforded
greater latitude.
Cox offers Bates v. Jean, 745 F.2d 1146 (7th Cir. 1984), as a
model for this Court to follow, but to no avail. There, the de-
fendants argued for waiver based on the judge asking the pro
se plaintiff a vague question about a confusing procedural
rule and the plaintiff answering that he had no objections. Id.
at 1150. Noting the fact-specific limitations of our holding, we
concluded that the plaintiff “in all probability did not under-
stand the judge’s question” and declined to apply waiver. Id.In contrast, Cox does not appear to have been confused by
the relatively straightforward application of Rule 12(b)(3)(C).
Again, he complied with its mandate by timely filing his other
suppression motions. The district court thus would not have
abused its discretion had it declined to find good cause based
on Cox’s pro se status.
8 No. 21-1744
Briefly, Cox raises another potential justification for his
untimely motion. In a single sentence, he says that he was
“not at least initially aware [that] Michael Burns was the indi-
vidual who permitted [the agents] to search Cox’s computer.”
Cox does not explain when, exactly, he learned about Burns’s
involvement and offers no reason for not discovering it
sooner. In light of the paltry presentment of the issue on ap-
peal and our hyper-deferential review, the district court
would not have abused its discretion had it denied Cox’s mo-
tion on this ground either.
As such, Cox has not presented good cause for failing to
comply with the Rule 12(b)(3)(C) deadline. We need not reach
the merits of his Fourth Amendment arguments.
Fifth Amendment
Next, Cox argues that he did not receive the necessary Mi-
randa warnings during two interviews with authorities: first,
at night outside his home, and second, the following day at
his office. Miranda warnings are required when a suspect is
interrogated while in custody. United States v. Leal, 1 F.4th 545,
549 (7th Cir. 2021). In this case, the parties agree that Cox
never received a Miranda warning. They also agree that each
interview constituted an interrogation. So, the only issue we
must decide is whether Cox was “in custody.”
“We review the district court’s determination that [Cox]
was not in custody de novo and the district court’s factual find-
ings for clear error.” United States v. Patterson, 826 F.3d 450,
454–55 (7th Cir. 2016). Whether a person is “in custody” is an
objective test. Leal, 1 F.4th at 549. We ask “whether ‘a reason-
able person [would] have felt he or she was not at liberty to
terminate the interrogation and leave.’” Id. (alteration in orig-
inal) (quoting Howes v. Fields, 565 U.S. 499, 509 (2012)). This
No. 21-1744 9
inquiry draws from the surrounding circumstances, includ-
ing “the location of the questioning, its duration, statements
made during the interview, the presence or absence of physi-
cal restraints during the questioning, and the release of the
interviewee at the end of the questioning.” Lentz v. Kennedy,
967 F.3d 675, 689 (7th Cir. 2020) (quoting Howes, 565 U.S. at
509); see also Patterson, 826 F.3d at 455 (“We have provided a
non-exhaustive list of example factors, which includes:
‘whether the encounter occurred in a public place; whether
the suspect consented to speak with the officers; whether the
officers informed the individual that he was not under arrest
and was free to leave; whether the individual was moved to
another area; whether there was a threatening presence of
several officers and a display of weapons or physical force;
and whether the officers’ tone of voice was such that their re-
quests were likely to be obeyed.’” (quoting United States v. Lit-
tledale, 652 F.3d 698, 701 (7th Cir. 2011))).
We must analyze the totality of the circumstances, not just
one particular factor. Patterson, 826 F.3d at 455. In the end,
there is no custody unless “the relevant environment presents
the same inherently coercive pressures as the type of station
house questioning at issue in Miranda.” Lentz, 967 F.3d at 689
(quoting Howes, 565 U.S. at 509).
1. The Interrogation at Cox’s Home
Cox argues that he was in custody during the interroga-
tion outside his home. He points to numerous factors, such as
Stewart and Gass showing up in the evening unannounced;
the interrogation taking place outside, separated from his
family; the interrogation lasting a couple hours; Stewart and
Gass not explicitly discounting the possibility of Cox cooper-
10 No. 21-1744
ating with the FBI in exchange for leniency; and Gass’s state-
ment during the suppression hearing that he would have ac-
companied Cox into the house had Cox tried to retrieve his
personal computer himself.
This Court’s Patterson decision illustrates just how much
is required to show custody. In that case, two agents wearing
street clothes approached a suspect in a driveway and asked
if he would go with them to the local FBI office to “clear his
name.” Patterson, 826 F.3d at 452. The suspect agreed. Id. The
agents performed a brief pat-down, then they all piled in a
single car to make the drive over. Id. at 453. Upon arriving at
the office, the group made their way through two secure
doors before settling in a conference room. Id. No force, hand-
cuffs, or threats were used. Id. at 458. Over the next two hours,
the suspect divulged incriminating information. Id. at 453–54.
The agents assured the suspect he would not be arrested that
day, and true to their word, they gave him a ride to a destina-
tion of his choosing after the interview. Id. We concluded that
a reasonable person would not have felt “in custody” under
these circumstances. Id. at 459.
With Patterson in mind, we turn to the interrogation at is-
sue. The agents spoke with Cox on the sidewalk and porch
outside his home—places where, presumably, Cox would
have felt comfortable. See United States v. Borostowski, 775 F.3d
851, 862 (7th Cir. 2014) (explaining that, when an interroga-
tion takes place “in familiar surroundings,” that factor “gen-
erally weighs in favor” of determining there was no custody).
In addition, the interrogation occurred in public. See United
States v. Ambrose, 668 F.3d 943, 957 (7th Cir. 2012) (“Where an
encounter with law enforcement occurs in a public place, the
Court has recognized that the public nature of the interaction
No. 21-1744 11
and the ease of leaving limit the coercive impact.” (citing
Berkemer v. McCarty, 468 U.S. 420, 438 (1984))). Even if people
were not milling around Cox’s yard during the interrogation,
it remained open to the surrounding neighborhood. Cf. Pat-
terson, 826 F.3d at 455 (noting that “a driveway on a public
street” was “a public setting”).
Cox counters that the location of the interrogation sepa-
rated him from his family. We considered this factor in Boro-
stowski, but there, the suspect had been “forcefully separated
from family members,” handcuffed, and escorted around the
house with “agents at his side.” 775 F.3d at 862–63. The inter-
rogation here pales in comparison. Cox freely consented to
speaking with the agents outside, and he was never hand-
cuffed or threatened with handcuffs. Cf. Leal, 1 F.4th at 551–
52 (determining the suspect was not in custody when he “vol-
untarily consented at every stage” and the officers “did not
use physical restraint”).
Other circumstances also compel the conclusion that Cox
was not in custody. The agents wore street clothes and kept
their weapons at bay. Cf. Patterson, 826 F.3d at 452, 457 (noting
that both agents “were wearing casual street clothes” and that
neither “dr[ew] or actively use[d] their weapons to assert au-
thority”). Stewart and Gass were the only agents there. Cf. id.
at 458 (“There were only two agents.”). The interrogation ap-
pears to have been non-confrontational. Cf. Leal, 1 F.4th at 552
(observing that the agents did not “flaunt a threatening pres-
ence ‘such that their requests were likely to be obeyed’” (quot-
ing Littledale, 652 F.3d at 701)). The agents asked Cox if he
wanted to talk (he did) and said that he could end the inter-
rogation at any time (he did not). Cf. id. at 551 (“Leal neither
12 No. 21-1744
asked the agents to stop the encounter and interview nor in-
dicated he wanted the investigation to stop.”). Indeed, the
agents gave Cox no reason to think he was facing imminent
arrest; they truthfully told him that he would be free to go at
the end of the interrogation. Cf. Ambrose, 668 F.3d at 958 (em-
phasizing the interviewer’s “statement that [the suspect] was
not under arrest and his reference only to the possibility of
future charges”). A reasonable person facing these circum-
stances would not consider himself in custody.
Cox’s remaining arguments cannot overcome these fac-
tors. The length of the interrogation, which arguably does fa-
vor custody here, is just one consideration. See Howes, 565 U.S.
at 515 (characterizing an interview’s duration of “between
five and seven hours in the evening” as lending only “some
support” to a determination of custody (emphasis added)).
Nor can Cox hang his hat on the agents’ failure to outright
discount his proposal of cooperating with the FBI; a reasona-
ble person would not take that omission to mean they were in
custody. See Ambrose, 668 F.3d at 959 (explaining that courts
must consider “a reasonable person’s perception”). Further,
we take no import from Gass’s testimony that he would have
gone with Cox into his home had Cox tried to retrieve his
computer himself. Gass never said this to Cox, who never at-
tempted to go inside. See id. at 954 (“Neither the subjective
views of the suspect being questioned nor that of the officer
engaging in the questioning is considered.”).
Finally, Cox suggests that the agents should have realized
he was in custody once he began answering their questions
with incriminating information. Not so. Miranda is not re-
quired whenever agents hold a productive interrogation. See
No. 21-1744 13
Leal, 1 F.4th at 550 (“[A] suspect’s guilty conscience does not
turn every police encounter into a custodial interrogation.”).
The factors attending the interrogation outside Cox’s
home therefore indicate that Cox was not in custody. The dis-
trict court was correct to deny the motion to suppress Cox’s
statements.
2. The Interrogation in Cox’s Office
The second interrogation occurred the next day in Cox’s
office at Burns Construction. At the outset, we must deter-
mine whether we should analyze this interrogation in the first
place. The government insists we should not because Cox
failed to object to the office interview before the district court
when he contested the magistrate judge’s report and recom-
mendation. The district court agreed that Cox had only ob-
jected to the home interrogation. Even Cox’s counsel concedes
this point, arguing that we should review the office interview
regardless given Cox’s pro se status.
Our “general rule” is that a party waives the right to ap-
peal an issue “first decided by a magistrate judge” if he “fails
to file an objection with the district court.” United States v.
Charles, 476 F.3d 492, 495–96 (7th Cir. 2007) (quoting United
States v. Hernandez-Rivas, 348 F.3d 595, 598 (7th Cir. 2003)).
The limited exception when waiver would “defeat the ends of
justice,” Hernandez-Rivas, 348 F.3d at 598, is not available here;
as mentioned above, waiver rules apply to represented and
pro se litigants alike, Johnson, 29 F.4th at 903. Thus, Cox’s fail-
ure to object to the magistrate judge’s finding about the office
interview constitutes a waiver.
14 No. 21-1744
In short, Cox was not in custody during the interrogation
outside his home and waived his argument as to the office in-
terview. We affirm the district court’s disposition of the Fifth
Amendment issues.
Sixth Amendment
Cox raises two Sixth Amendment arguments, both related
to his chief defense that Kilcline, not he, committed the
charged offenses. First, Cox takes issue with the district court
prohibiting two witnesses from testifying as to Kilcline’s pre-
vious bad acts. Second, Cox contests the district court’s re-
fusal to compel the attendance of Kilcline himself. According
to Cox, these decisions prevented him from presenting a com-
plete defense. See Crane v. Kentucky, 476 U.S. 683, 690 (1986)
(“Whether rooted directly in the Due Process Clause of the
Fourteenth Amendment, or in the Compulsory Process or
Confrontation clauses of the Sixth Amendment, the Constitu-
tion guarantees criminal defendants ‘a meaningful oppor-
tunity to present a complete defense.’” (citations omitted)
(quoting California v. Trombetta, 467 U.S. 479, 485 (1984))); see
also Taylor v. Illinois, 484 U.S. 400, 409 (1988) (“The right to
compel a witness’ presence in the courtroom could not protect
the integrity of the adversary process if it did not embrace the
right to have the witness’ testimony heard by the trier of fact.
The right to offer testimony is thus grounded in the Sixth
Amendment even though it is not expressly described in so
many words ….”).
1. Wolfe and Hazelwood’s Testimony
At trial, Cox sought to call Hailey Wolfe and Marc Hazel-
wood to testify about their previous experiences with
Kilcline—to establish Kilcline’s “modus operandi,” as Cox
frames it on appeal. The district court denied these proffers
No. 21-1744 15
on the ground that the testimonies would be irrelevant and
would confuse the issues.
We review the district court’s evidentiary rulings for an
abuse of discretion. United States v. Bonin, 932 F.3d 523, 543
(7th Cir. 2019). We will reverse only if “no reasonable person
could agree with the district court.” United States v. Harden,
893 F.3d 434, 450 (7th Cir. 2018) (quoting Jenkins v. Chrysler
Motors Corp., 316 F.3d 663, 664 (7th Cir. 2002)). Whether a rul-
ing infringed the defendant’s constitutional right to present a
defense is a separate question; we review that issue de novo.
Bonin, 932 F.3d at 543.
Cox contends that Wolfe and Hazelwood’s testimonies
were both admissible under Federal Rule of Evidence 404(b).
Rule 404(b) bars evidence of prior bad acts to show a person
“had a propensity to commit a crime” but permits it for other
purposes. United States v. Edwards, 26 F.4th 449, 454 (7th Cir.
2022). Although the rule normally serves as a shield for the
defense, its role can flip, like when a defendant tries to intro-
duce evidence of someone else’s “prior bad acts if that evi-
dence tends to negate the defendant’s guilt.” United States v.
Sanders, 708 F.3d 976, 992 (7th Cir. 2013). Cox’s attempt to
show Kilcline’s modus operandi qualifies as this so-called “re-
verse” 404(b) evidence. See United States v. Murray, 474 F.3d
938, 939 (7th Cir. 2007) (describing a defendant’s attempt to
use “‘other crimes’ of another person to try to shift the blame
to that person”).
In such a scenario, we are less concerned with improper
character implications because “the jury is not being asked to
judge” the subject of the evidence. Id. Still, the defendant must
clear the hurdles posed by other rules of evidence. United
States v. Alayeto, 628 F.3d 917, 921 (7th Cir. 2010). For example,
16 No. 21-1744
Rule 401 bars irrelevant evidence. Fed. R. Evid. 401. And as
often arises in the reverse 404(b) context, Murray, 474 F.3d at
939, Rule 403 bars evidence when the risks of its admission
“substantially outweigh[]” its probative value, Fed. R. Evid.
403. “[U]nless the other crime and the present crime are suffi-
ciently alike to make it likely that the same person committed
both crimes, so that if the defendant did not commit the other
crime he probably did not commit this one, the evidence will
flunk Rule 403’s test.” Murray, 474 F.3d at 939.
Here, Kilcline’s proffered prior bad acts share only generic
similarities with the at-issue conduct. Wolfe would have re-
counted how she previously sent Kilcline (her boyfriend at
the time) nude photos of herself, which he distributed online
after she refused his demands for more material. Hazelwood
would have described Kilcline’s predatory practices growing
up and how Kilcline had recently “hacked” the Facebook ac-
count of Hazelwood’s ex-girlfriend and used it for blackmail.
Neither Wolfe nor Hazelwood proffered that Kilcline relied
on the same phone and VPN tactics that the perpetrator of
these crimes used. In fact, anonymity seems to have been the
least of Kilcline’s worries; Wolfe sent her photos directly to
his personal Facebook account, and he told Hazelwood’s ex-
girlfriend his full name.
Even assuming Wolfe and Hazelwood’s proffered testi-
monies can meet the low bar for relevance, they are barely
probative. Reverse 404(b) evidence requires “something dis-
tinctive about all the crimes that makes them form a pattern,
rather than their having merely a chance resemblance.” Mur-
ray, 474 F.3d at 941. That Kilcline may have sought explicit
photos from other women and “hacked” other Facebook ac-
counts is not enough to show that he committed the offenses
No. 21-1744 17
at issue. What is more, admitting this testimony likely would
have added even more confusion to an already-complex fact
pattern. See Alayeto, 628 F.3d at 922 (explaining that Rule 403
helps to exclude evidence that might “distract[]” jurors from
“the central issue in the case,” especially when that evidence
has “minimal relevance”); Murray, 474 F.3d at 941 (“Without
insistence on more than mere ‘similarity,’ criminal trials may
get out of hand, as defendants cast for other criminals—fish-
ing in a vast sea—on whom to pin their crime.”).
Essentially, Cox proffered Wolfe and Hazelwood’s testi-
monies as a means of “pointing a finger at someone else
who … might have committed” the charged offenses. Murray,
474 F.3d at 939. The district court did not abuse its discretion
by preventing this tactic.
Moving to the constitutional question, the Supreme Court
has expressly approved limitations on a defendant’s ability to
introduce evidence “show[ing] that someone else committed
the crime with which they are charged.” Holmes v. South Car-
olina, 547 U.S. 319, 327 (2006). Also, Cox could still present his
defense without these two particular witnesses. The district
court allowed a different witness to testify about her experi-
ence with an online predator going by “David” (Kilcline’s first
name), and Stewart and Waller spoke to potential ties be-
tween Kilcline and these offenses. See Bonin, 932 F.3d at 543–
44 (determining there was no violation when the defendant
“presented a defense” on all contested issues). This was suffi-
cient to satisfy Cox’s rights.
2. Kilcline’s Attendance
In the same vein, Cox argues that the district court erred
by refusing to compel Kilcline’s attendance at trial. Cox had
18 No. 21-1744
previously tried to serve Kilcline three times. Each attempt
was technically improper due to the lack of witness and mile-
age fees. See Fed. R. Crim. P. 17(d). On the third day of trial,
Cox orally requested the district court’s help.
The district court reasoned that Cox was effectively asking
for a new, court-ordered subpoena under Federal Rule of
Criminal Procedure 17(b). Rule 17(b) requires district courts
to issue a witness subpoena on behalf of the defendant “if the
defendant shows an inability to pay the witness’s fees and the
necessity of the witness’s presence for an adequate defense.”
Fed. R. Crim. P. 17(b). We will not reverse unless the district
court’s denial of the motion was an abuse of its “wide discre-
tion” over such matters. See United States v. Chapman, 954 F.2d
1352, 1362 (7th Cir. 1992) (quoting United States v. Garza,
664 F.2d 135, 141 (7th Cir. 1981)).
Although the district court gave a couple reasons for
denying Cox’s request, we need only address one of them:
timeliness. Cox made his request three days into trial. This is
especially notable as the court had already deemed his previ-
ous Rule 17(b) motion (concerning other witnesses) untimely
when it was brought five days before trial. Other circuits have
approved the consideration of timeliness when deciding Rule
17(b) motions. See, e.g., United States v. Muho, 978 F.3d 1212,
1219 (11th Cir. 2020), cert. denied, 141 S. Ct. 2613 (2021); United
States v. Orr, 692 F.3d 1079, 1095 (10th Cir. 2012). We now
chart the same course. Cox’s motion in the midst of trial was
untimely, and he does not offer a good reason for not bringing
No. 21-1744 19
it earlier.1 The district court acted within its wide discretion
by denying the motion.
Thus, none of the district court’s decisions violated Cox’s
Sixth Amendment rights. The substantial evidence support-
ing the jury’s verdict, described next, provides further sup-
port. See United States v. Hart, 995 F.3d 584, 590 (7th Cir. 2021)
(explaining that “[a] defendant’s right to compulsory pro-
cess” is not abridged unless the omitted testimony would
have been “material,” meaning there is a “‘reasonable likeli-
hood’ … that it ‘could have affected the judgment of the trier
of fact’” (citations omitted)).
Sufficiency of the Evidence
Cox’s final argument is that the government did not pre-
sent sufficient evidence to convict him. Recall that Cox was
convicted of three types of crimes: (1) extorting people with
threats to share their sexually explicit images, (2) coercing (or
attempting to coerce) minors to engage in sexually explicit
conduct, resulting in a visual depiction, and (3) receiving
child pornography.2
Overturning a jury verdict for insufficient evidence is a
“steep, uphill battle.” United States v. Farris, 532 F.3d 615, 618
(7th Cir. 2008). The evidence, as viewed in the “light most fa-
vorable to the government,” must be so lacking that no “ra-
tional trier of fact” could have decided to convict. United
1 Cox notes that he was actively trying to serve Kilcline (as opposed
to sitting on his hands), but that does not adequately explain why he
waited so long to bring this issue to the district court’s attention.
2 It is unclear whether Cox is challenging the extortionist convictions.
At any rate, the evidence supported all the convictions, including those
ones, for the reasons discussed here.
20 No. 21-1744
States v. Faulkner, 885 F.3d 488, 492 (7th Cir. 2018) (quoting
United States v. Webster, 775 F.3d 897, 904–05 (7th Cir. 2015)).
This burden is “nearly insurmountable.” United States v. Gray-
son Enters., Inc., 950 F.3d 386, 405 (7th Cir. 2020) (quoting
Faulkner, 885 F.3d at 492); see also Vizcarra-Millan, 15 F.4th at
506 (“[T]he height of the hurdle the defendant must overcome
depends directly on the strength of the government’s evi-
dence.”). If the defendant forfeited his claim by failing to
properly move for acquittal before the district court, his odds
grow fainter still. See United States v. Lundberg, 990 F.3d 1087,
1095 (7th Cir. 2021) (explaining that we review such chal-
lenges for plain error).
After concluding that Cox’s motion for acquittal was un-
timely, the district court explained that it would have sus-
tained the jury’s verdict on the merits anyway. We may simi-
larly treat the issue as preserved, regardless of whether Cox
properly brought his motion below, because he cannot suc-
ceed under the more forgiving standard. Cf. Farris, 532 F.3d at
619 (holding that application of the “heightened standard of
review” would have “no impact on the merits” given the am-
ple evidence supporting the jury’s verdict).
Cox deploys a two-pronged attack, offering on the one
hand evidence he says exonerates him and, on the other, evi-
dence he says shifts the blame to third parties. 3
As for the first strategy, Cox mostly relies on various bits
of technical evidence, like logs of his internet history that do
3Cox also makes a conclusory, single-sentence argument about the
evidence supporting a nexus to interstate commerce. This undeveloped
argument does not suffice on appeal. See Vesey v. Envoy Air, Inc., 999 F.3d
456, 464 (7th Cir. 2021), cert. denied, 142 S. Ct. 401 (2021).
No. 21-1744 21
not link his personal devices to certain offending Facebook
accounts. The jury considered this evidence but decided to in-
stead credit the other, plentiful ties to Cox, including that the
phone number used to commit the offenses was registered
through Burns Construction’s internet connection; that the ac-
tivity for this phone number aligned with Cox’s home, com-
mute, and work habits; that Cox met Waller in person after
making arrangements through one of the offending accounts;
and that Cox confessed to the FBI multiple times. In response
to that last point, Cox contends that Stewart’s recollection of
their conversations should not be trusted. But it is “well set-
tled” that this Court does not weigh in on credibility issues
when reviewing a verdict. Farris, 532 F.3d at 619. The jury rea-
sonably favored all this condemnatory evidence over the evi-
dence Cox presented.
Cox focuses most of his attention on the evidence suggest-
ing that another person (or persons) could have committed
the charged offenses. For one thing, as already mentioned,
Kilcline may have some ties to the relevant Facebook ac-
counts. Waller also admitted that she had logged into the ac-
counts to collect explicit photos. In fact, the district court
agreed there was “little question” multiple people used one
account in particular. And Cox points to other events suggest-
ing that the sextortion scheme remained active after his arrest.
Nonetheless, “[w]e cannot re-weigh the evidence” at this
stage. Faulkner, 885 F.3d at 492. Given all the evidence listed
above, indications that other people may have committed
similar crimes and theoretically could be to blame for the at-
issue offenses do not render the jury’s decision irrational. Cf.
United States v. Rogers, 387 F.3d 925, 936 (7th Cir. 2004) (hold-
22 No. 21-1744
ing there was sufficient evidence to support the conviction de-
spite the defendant’s argument that the “evidence did not
rule out the possibility that another person used his cellular
telephone [in furtherance of the crime] that day”). The evi-
dence against Cox was substantial, and he does not under-
mine it on appeal.
III. Conclusion
For these reasons, we AFFIRM the judgment of the district
court.