United States v. Keith Cunningham , 607 F. App'x 715 ( 2015 )

FILED
NOT FOR PUBLICATION JUN 08 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-30077
Plaintiff - Appellee, D.C. No. 4:12-cr-00060-BMM-1
v.
MEMORANDUM*
KEITH CLIFFORD CASEY
CUNNINGHAM,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Brian M. Morris, District Judge, Presiding
Submitted May 8, 2015**
Portland, Oregon
Before: W. FLETCHER and HURWITZ, Circuit Judges and BAYLSON,*** Senior
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Michael M. Baylson, Senior District Judge for the
U.S. District Court for the Eastern District of Pennsylvania, sitting by designation.
Appellant Keith Clifford “Casey” Cunningham appeals his conviction for
violating 18 U.S.C. § 2251(a), which, as relevant here, criminalizes inducing or
using a child to engage in, “with the intent that such minor engage in, any sexually
explicit conduct for the purpose of producing any visual depiction of such
conduct.” We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Cunningham argues on appeal that his confrontation right under the Sixth
Amendment was violated because the child victim was not called to testify.
Because Cunningham did not object at trial to the admission of statements that may
have implicated this right, we review for plain error. United States v. Anekwu, 695
F.3d 967, 973 (9th Cir. 2012).
Cunningham contends that his right to confront the witness against him was
violated because the government did not call the child victim to testify, whether in
Cunningham’s presence or via closed-circuit television. He argues that the victim
was a witness against him because she was present when he allegedly committed
the crime and because her allegations triggered the investigation that ensnared him.
But that is not the legally relevant meaning of “witness.” Rather, a witness for
purposes of the Confrontation Clause is (1) someone who testifies in court or (2)
someone whose testimonial out-of-court statements are admitted at trial to prove
the truth of the matter asserted. See Davis v. Washington, 547 U.S. 813, 821
2
(2006) (citing Crawford v. Washington, 541 U.S. 36, 51 (2004)). The victim was
plainly not the first type of witness and Cunningham has waived the argument that
she was the second type. Cunningham did not argue in his opening brief that the
victim was a witness against him because her testimonial hearsay was introduced at
trial via the testimony of her mother and the investigating officer. Indeed, he does
not mention Crawford at all. Therefore, we will not entertain this argument. See
Paladin Assoc., Inc. v. Mont. Power Co., 328 F.3d 1145, 1164 (9th Cir. 2003).
Cunningham also contends that the trial court erred by admitting evidence
that he had previously purchased an online video depicting child pornography. We
review evidentiary rulings for abuse of discretion. See United States v. Chea, 231
F.3d 531, 534 (9th Cir. 2000).
The district court did not abuse its discretion in admitting evidence about
Cunningham’s purchase from primteens.com. Federal Rule of Evidence 404(b)
does not prohibit the introduction of evidence of extrinsic acts that might adversely
reflect on the actor’s character if the evidence bears on a relevant issue, such as
motive, intent, knowledge, and lack of accident. Fed. R. Evid. 404(b)(2). The
website evidence was probative of Cunningham’s intent to sexually exploit the
victim because it tended to show that he has sexual feelings for children and that he
did not inadvertently take sexually explicit photographs of the victim. “Thus, the
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evidence was probative both of [Cunningham’s] intent and the credibility of his
innocence defense.” United States v. Curtin, 489 F.3d 935, 950 (9th Cir. 2007) (en
banc). In addition, the evidence, which was admitted to prove a material element
of the crime, was similar to the offense charged, was based on sufficient evidence,
and was not too remote in time. See United States v. Ramirez-Robles, 386 F.3d
1234, 1242 (9th Cir. 2004) (explaining the factors used to determine whether
evidence is admissible under Rule 404(b)).
AFFIRMED.
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