United States v. Sarah Cox ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10416
Plaintiff-Appellee,
D.C. No.
v. 3:16-cr-08202-
ROS-1
SARAH MELISA COX, AKA Sarah
Cox, AKA Sarah Cunningham,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, District Judge, Presiding
Argued and Submitted May 11, 2020
San Francisco, California
Filed June 26, 2020
Before: Ryan D. Nelson and Daniel A. Bress, Circuit
Judges, and James S. Gwin, * District Judge.
Opinion by Judge Gwin
*
The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
2 UNITED STATES V. COX
SUMMARY **
Criminal Law
The panel affirmed convictions on child pornography-
related charges, including one count of making a notice
offering child pornography in violation of 18 U.S.C.
§ 2251(d)(1)(A).
The panel held that one-to-one communications can
satisfy the “notice” requirement in § 2251(d)(1), and that a
rational fact-finder could find that the defendant made a
notice offering child pornography when she sent a one-to-
one electronic message linking to a Dropbox account that
contained child pornography. The panel also held that the
district court did not abuse its discretion when it admitted
under Fed. R. Evid. 404(b) an uncharged Kik messenger
exchange to prove the defendant’s identity and absence of
mistake.
COUNSEL
David Eisenberg (argued), Phoenix, Arizona, for Defendant-
Appellant.
Krissa M. Lanham (argued), Deputy Appellate Chief; Robert
I. Brooks, Assistant United States Attorney; Michael Bailey,
United States Attorney; United States Attorney’s Office,
Phoenix, Arizona; for Plaintiff-Appellee.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. COX 3
OPINION
GWIN, District Judge:
Sarah Cox used an online instant messaging platform to
exchange child pornography with one other individual. A
jury convicted Cox of five child pornography-related
charges, including one count of making a notice offering
child pornography in violation of 18 U.S.C.
§ 2251(d)(1)(A).
With this appeal, Cox argues that a one-to-one
communication cannot support a conviction for “mak[ing]
. . . [a] notice . . . offering” child pornography under
§ 2251(d)(1)(A). Cox also argues that the district court erred
when it admitted evidence of uncharged conduct.
We disagree with Cox’s reading of the statute, and we
conclude that the district court did not err in admitting the
uncharged conduct evidence. We affirm.
I. BACKGROUND
A. Case Overview
In late August 2015, Richard Hennis and a person using
the moniker “JadeJeckel” communicated on Kik Messenger 1
and discussed child pornography and child sex. In later
November 2015 to January 2016 Kik messages, JadeJeckel
and Hennis exchanged child pornography. At trial, the
Government argued that Defendant Sarah Cox used the
JadeJeckel messaging account. Cox denied that she sent or
1
Kik Messenger is an instant messaging application available for
smartphones and tablets. It functions similarly to a standard text
messaging service.
4 UNITED STATES V. COX
received the messages. The jury convicted Cox on all
counts.
Although the indictment only alleged criminal conduct
in December 2015, the Government offered the August 2015
Kik conversation to prove that Defendant Cox used the
JadeJeckel account. Appellant Cox says this was prejudicial
error.
Cox also argues on appeal that insufficient evidence
supported her conviction of making a notice offering child
pornography when the notice was in a person-to-person text
message. She claims the statute could only be violated
through a wider distributed notice.
B. The Kik Messenger Conversation
On August 24, 2015, Richard Hennis started a Kik
Messenger conversation with user “JadeJeckel.” The
Government later claimed Sarah Cox was the JadeJeckel
user.
A few hours into the August 2015 Kik exchange,
Defendant Cox steered the conversation to child sex. In this
text exchange, Defendant Cox and Hennis discussed child
sex, whether to murder a mother to take her child, and their
desire to kidnap, enslave, and rape children. After several
days of these August 2015 messages, Cox ended the
conversation.
On November 22, 2015, Defendant Cox and Hennis
reinitiated their Kik conversation. Cox and Hennis quickly
resumed discussing their child sexual interest. Minutes after
reconnecting in November 2015, Cox asked Hennis to send
her his “nastiest favorite” “naughty” videos. In response,
Hennis sent Cox eleven separate child pornography files.
UNITED STATES V. COX 5
For the next several weeks, Defendant Cox and Hennis
continued to discuss their child sexual interest. Central to
the charge for making a notice offering child pornography,
on December 4, 2015, Defendant Cox used Kik to send
Hennis two separate Dropbox links, calling them “[g]oodies
for daddy.” One of the Dropbox accounts contained child
pornography videos. On December 23, 2015, Hennis sent
Cox three child pornography images. Hennis and Cox ended
their text conversation on January 18, 2016.
C. Investigation and Arrest
In early 2016, law enforcement received a tip that
Richard Hennis had child pornography on his phone. Law
enforcement arrested Hennis, seized his phone, and
extracted the Hennis-Cox Kik Messenger conversations
described above. Investigation into the JadeJeckel identity
showed substantial evidence linking Sarah Cox to the
JadeJeckel account, including IP addresses, an email from
jadejeckel@live.com containing Cox’s resume; Cox’s
driver’s license listing the same birthday as JadeJeckel; non-
public photographs of Cox sent by JadeJeckel; and Cox’s
social media accounts using the JadeJeckel moniker.
The Government arrested Cox and charged her with five
counts arising out of her Kik Messenger conversation with
Hennis: three counts of receiving child pornography, 2 one
count of making a notice offering child pornography, 3 and
one count of distributing child pornography. 4
2
18 U.S.C. §§ 2252A(a)(2)(A), 2252A(b), 2256.
3
18 U.S.C. §§ 2251(d)(1)(A), 2256.
4
18 U.S.C. §§ 2252A(a)(2)(A), 2252A(b), 2256.
6 UNITED STATES V. COX
D. Trial and Appeal
The case went to trial. The Government presented
substantial evidence that Sarah Cox was the JadeJeckel Kik
user. Cox did not contest that JadeJeckel transmitted and
received child pornography. Instead, Cox argued that she
was not JadeJeckel. Cox called one witness, a computer
forensics expert, who testified that hackers can frame people
by creating fake internet profiles. The expert witness also
testified that Cox’s surrendered electronic devices did not
have Kik conversation evidence. The jury convicted Sarah
Cox on all counts.
On October 24, 2018, Cox appealed. On appeal, Cox
concedes that the Government showed sufficient evidence
that she was JadeJeckel. Instead she argues that the evidence
was insufficient to support a conviction for making a notice
offering child pornography and that the district court erred
in admitting certain evidence warranting a new trial.
II. DISCUSSION
A. One-to-One Communications Can Satisfy the
18 U.S.C. § 2251(d)(1) “Notice” Requirement, and
Sufficient Evidence Supported Cox’s § 2251(d)(1)
Conviction.
Cox challenges her conviction for violating 18 U.S.C.
§ 2251(d)(1)(A), that provides:
(d)(1) Any person who . . . knowingly
makes, prints, or publishes, or causes to be
made, printed, or published, any notice or
advertisement seeking or offering—
UNITED STATES V. COX 7
(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[]
...
shall be punished as provided under
subsection (e). 5
To prove this violation, the Government presented
evidence that Cox sent Hennis a Kik message with a link to
a Dropbox account that contained child pornography. Cox’s
message with the link said, “[g]oodies for daddy.”
On appeal, Cox argues that a one-to-one communication
cannot be a “notice or advertisement” of child pornography
under 18 U.S.C. § 2251(d)(1). She argues that the statute
requires “something more than a one-on-one exchange.”
Because her communication ran only to Hennis, she argues
there was insufficient evidence for her § 2251(d)(1)
conviction.
“We review challenges to the sufficiency of evidence,
including questions of statutory interpretation, de novo.” 6
“There is sufficient evidence to support a conviction if,
viewing the evidence in the light most favorable to the
5
18 U.S.C. § 2251(d)(1)(A).
6
United States v. Aldana, 878 F.3d 877, 880 (9th Cir. 2017).
8 UNITED STATES V. COX
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” 7
As a preliminary matter, we agree with the Government
that we only need consider whether the trial evidence
supports a conviction under the statute’s “notice” prong. If
the Government proves the “notice” prong, the Government
does not need to prove the “advertisement” prong.
Section 2251(d)(1) is disjunctive (i.e., the statute
prohibits “notice or advertisement”). 8 The Government
prosecuted Cox under the “notice” prong. Therefore, we
consider only whether any rational juror could find that
evidence of a one-to-one communication could be a “notice”
under 18 U.S.C. § 2251(d)(1).
1. Statutory Construction
Before we consider the sufficiency of the evidence, we
first examine the statute. Whether 18 U.S.C. § 2251(d)(1)’s
“notice” provision applies to one-to-one messages is an issue
of first impression in this circuit.
In statutory interpretation, “our starting point is the plain
language of the statute.” 9 “[W]e examine not only the
specific provision at issue, but also the structure of the
7
Id. (quoting United States v. Roach, 792 F.3d 1142, 1144 (9th Cir.
2015)).
8
18 U.S.C. § 2251(d)(1) (emphasis added).
9
United States v. Williams, 659 F.3d 1223, 1225 (9th Cir. 2011).
UNITED STATES V. COX 9
statute as a whole, including its object and policy.” 10 “If the
plain meaning of the statute is unambiguous, that meaning is
controlling . . . .” 11
We first look to the key word in our review: “notice.” 12
The statute does not define notice, so we construe the word
pursuant to its ordinary meaning. 13 To determine ordinary
meaning, we consider dictionary definitions. 14
Most standard English-language dictionary notice
definitions do not define notice in relation to audience size.
For example, Merriam-Webster.com gives the following
definitions of “notice”:
1 a (1): warning or intimation of something :
announcement
(2): the announcement of a party’s intention
to quit an agreement or relation at a specified
time
10
Id. (quoting Children’s Hosp. & Health Ctr. v. Belshe, 188 F.3d
1090, 1096 (9th Cir. 1999)).
11
Id.
12
See United States v. Franklin, 785 F.3d 1365, 1367 (10th Cir.
2015) (considering whether 18 U.S.C. § 2251(d)(1) applies to a closed
network).
13
See Sebelius v. Cloer, 569 U.S. 369, 376 (2013); see Animal Legal
Def. Fund v. United States Dep’t of Agric., 933 F.3d 1088, 1093 (9th Cir.
2019) (“When a statute does not define a term, we typically give the
phrase its ordinary meaning.” (quoting FCC v. AT&T Inc., 562 U.S. 397,
403 (2011))).
14
See Wisconsin Cent. Ltd. v. United States, 138 S. Ct. 2067, 2070–
71 (2018); United States v. Ezeta, 752 F.3d 1182, 1185 (9th Cir. 2014).
10 UNITED STATES V. COX
(3): the condition of being warned or
notified—usually used in the phrase on
notice
b: information, intelligence
2 a: attention, heed
b: polite or favorable attention : civility
3: a written or printed announcement
4: a short critical account or review 15
None of these definitions implicate audience size.
Relying on similar dictionary definitions, the Seventh
and Tenth Circuits have reached similar conclusions when
reviewing whether 18 U.S.C. § 2251(d)(1) prohibits
communications to groups with limited membership. 16 In
view of these dictionary definitions, the ordinary meaning of
“notice” does not exclude one-to-one communications.
We nonetheless continue our inquiry and consider the
word modifying “notice.” Section 2251(d)(1) proscribes
15
Notice, Merriam-Webster, https://www.merriam-
webster.com/dictionary/notice (last visited May 20, 2020) (capitalization
altered and examples omitted).
16
United States v. Gries, 877 F.3d 255, 260 (7th Cir. 2017)
(reviewing two “notice” definitions and opining that “[i]n everyday
parlance, the term is not limited to warnings or notifications
disseminated to the general public”); Franklin, 785 F.3d at 1368
(reviewing 18 “notice” definitions and concluding that none have “a
public component”) (citing Notice, Webster’s Third New International
Dictionary 1544 (ed. Philip Babcock Gove 1993)).
UNITED STATES V. COX 11
“any notice . . . seeking or offering” child pornography. 17
The Supreme Court has observed that, “[r]ead naturally, the
word ‘any’ has an expansive meaning, that is, ‘one or some
indiscriminately of whatever kind.’” 18 Thus, Congress’s use
of “any” suggests Congress intended “notice” to cover any
communication that could reasonably fall within that term. 19
Notably, the statute does not limit notices to those that are
widely disseminated to the public at large or a large group of
people.
We also consider the verbs that precede “any notice.”
Section 2251(d)(1) prohibits “[a]ny person [from] . . .
mak[ing], print[ing], or publish[ing] . . . any notice.” 20 A
review of these verbs’ dictionary definitions suggests that
“publish” has a public dissemination component. 21 We can
17
18 U.S.C. § 2251(d)(1) (emphasis added).
18
Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 219 (2008) (alteration
in original) (quoting United States v. Gonzales, 520 U.S. 1, 5 (1997));
accord Olympic Forest Coal. v. Coast Seafoods Co., 884 F.3d 901, 906
(9th Cir. 2018) (collecting cases for the proposition that the “any” is
“broad and all-encompassing”); Do Sung Uhm v. Humana, Inc., 620 F.3d
1134, 1153 (9th Cir. 2010) (“The word ‘any’ is generally used in the
sense of ‘all’ or ‘every’ and its meaning is most comprehensive.”)
(quoting Fleck v. KDI Sylvan Pools, Inc., 981 F.2d 107, 115 (3d Cir.
1992)).
19
See Harrison v. PPG Indus., Inc., 446 U.S. 578, 588–89 (1980)
(construing Section 307(b)(1) of the Clean Air Act expansively in light
of a 1977 amendment that added the word “any”).
20
18 U.S.C. § 2251(d)(1) (emphasis added).
21
Merriam-Webster includes two representative definitions of
“publish”: “to make public announcement of” and “to disseminate to
the public.” Publish, Merriam-Webster, https://www.merriam-
12 UNITED STATES V. COX
assume that “print” often could refer, and even more
typically may refer, to a more public dissemination. But as
we have explained, the phrase “make[] . . . any notice” is
quite clearly not limited to public dissemination and can
include one-to-one communications that are fairly
characterized as “notices.” At least in the context of this
case, which involves a defendant who is offering child
pornography, we do not think the statute’s inclusion of the
words “publish” and “print” requires us to adopt an
unnaturally narrow interpretation of the phrase “make[] . . .
any notice.” Once again, if Congress had intended to limit
the statute in the way Cox suggests, we think it would have
chosen different language than it did.
At this stage of the inquiry, in view of the ordinary
meaning of the statutory terms and § 2251(d)(1)’s
proscription of “any notice,” the statute strongly suggests
that “make[] . . . any notice” can reach one-to-one
communications. 22
We also consider “the structure of the statute as a whole,
including its object and policy,” 23 and “whether the
proposed interpretation would frustrate or advance that
purpose.” 24 With its child pornography legislation,
Congress enacted a “comprehensive” regulatory scheme that
webster.com/dictionary/publish (definitions 1b and 2a, respectively)
(last visited June 6, 2020).
22
18 U.S.C. § 2251(d)(1) (emphasis added).
23
Williams, 659 F.3d at 1225 (quoting Children’s Hosp. & Health
Ctr., 188 F.3d at 1096).
24
See United States v. Mohrbacher, 182 F.3d 1041, 1049 (9th Cir.
1999).
UNITED STATES V. COX 13
“seeks to regulate (more accurately, exterminate) the entire
child pornography market.” 25 Construing “notice” to
include one-to-one communications furthers this broad
statutory objective.
In summary, based upon the statute’s plain meaning, we
hold that one-to-one communications can satisfy the
“notice” requirement under 18 U.S.C. § 2251(d)(1).
2. Sufficiency of the Evidence
Applying our construction of § 2251(d)(1) to the instant
case, we decide that a rational fact-finder could find that Cox
made a notice offering child pornography when she sent a
one-to-one electronic message with a Dropbox link and
informed Hennis that it contained child pornography. As
discussed above, the critical Kik messages conveyed
Dropbox links and the message “[g]oodies for daddy.”
Taken together and when viewed in the context of the overall
conversation between Cox and Hennis, these Kik messages
reflected an offer to provide child pornography and means
for how to gain access to it. This is sufficient to constitute
“mak[ing] . . . any notice . . . offering . . . to . . . exchange,
. . . display, distribute, or reproduce” child pornography.” 26
The district court therefore did not err in denying Cox’s Rule
29 motion for a directed verdict as to the § 2251(d)(1)(A)
count.
25
United States v. McCalla, 545 F.3d 750, 755 (9th Cir. 2008);
accord United States v. Maxwell, 446 F.3d 1210, 1217 n.7 (11th Cir.
2006).
26
18 U.S.C. § 2251(d)(1).
14 UNITED STATES V. COX
3. United States v. Caniff
Considering our ruling, we do not reach Cox’s argument
that § 2251(d)(1) notice is unconstitutionally vague (or
whether this argument has been waived). We nonetheless
observe that the Eleventh Circuit case Cox relies upon for
her associated rule of lenity argument—United States v.
Caniff 27—is distinguishable.
Caniff is the only other case in which a court of appeals
directly considered whether § 2251(d)(1) notice applies to
one-to-one communications. 28 In Caniff, the 32-year-old
defendant engaged in a text-message conversation with an
FBI agent who posed as a 13-year-old girl. 29 In the text
conversation, the defendant asked the purported 13-year-old
girl for sexually explicit pictures of herself. 30 For this
conduct, the defendant was charged and convicted of
“mak[ing]” a “notice” “seeking” to “receive” child
pornography in violation of § 2251(d)(1)(A). 31 (In contrast,
Defendant Cox was charged with “mak[ing]” a “notice”
“offering” to “display, distribute, or reproduce” child
pornography. 32)
27
955 F.3d 1183 (11th Cir. 2020) (per curiam).
28
See id. at 1185.
29
Id. at 1185–86.
30
Id. at 1186.
31
Id. at 1186–87 (quoting 18 U.S.C. § 2251(d)(1)(A) (emphasis
added)).
32
See 18 U.S.C. § 2251(d)(1)(A).
UNITED STATES V. COX 15
On appeal, Caniff argued that 18 U.S.C. § 2251(d)(1)
was ambiguous when applied to this conduct. 33 The
Eleventh Circuit agreed. After applying the tools of
statutory interpretation, the Eleventh Circuit had “serious
doubts” about the statute’s applicability to Caniff’s
conduct. 34 The court applied the rule of lenity in Caniff’s
favor and reversed his conviction under § 2251(d)(1)(A). 35
The Eleventh Circuit’s holding was based on a perceived
ill fit between § 2251(d)(1) and defendant Caniff’s conduct.
Caniff had asked for pictures of the supposed 13-year-old
girl, and he was therefore convicted of “mak[ing]” a “notice
. . . seeking” to “receive” child pornography. 36 The Eleventh
Circuit’s decision seems to turn on its view that “mak[ing]
. . . any notice . . . seeking . . . to receive” is an unusual
phrasing that created “serious doubts” about the applicability
of § 2251(d)(1) to Caniff’s conduct. 37
We do not have the same doubts about the applicability
of § 2251(d)(1) to Cox’s conduct. Cox sent Hennis a link to
child pornography. The jury found Cox guilty of “mak[ing]”
a “notice . . . offering” to “display, distribute, or reproduce”
33
Caniff, 955 F.3d at 1187.
34
Id. at 1191–92; see also id. at 1185 (“Caniff’s private, person-to-
person text messages asking an individual he thought was a minor to
send him sexually explicit pictures of herself cannot support a conviction
for ‘mak[ing]’ a ‘notice’ to receive child pornography in violation of
18 U.S.C. § 2251(d)(1).”).
35
Id. at 1193.
36
18 U.S.C. § 2251(d)(1)(A) (emphasis added); Caniff, 955 F.3d
at 1185–86.
37
See Caniff, 95 F.3d at 1189–91.
16 UNITED STATES V. COX
child pornography. 38 The § 2251(d)(1)(A) application to
Cox’s conduct does not warrant application of the rule of
lenity.
We have no occasion to decide whether all one-to-one
communications will be a § 2251(d)(1)(A) notice violation.
Today, we hold only that one-to-one exchanges can satisfy
the legal definition of “notice” under § 2251(d)(1), and that
the evidence in Cox’s case, viewed in the light most
favorable to the prosecution, sufficiently supported her
conviction.
B. The District Court Did Not Err by Admitting the
August 2015 Hennis-Cox Kik Messenger Exchange.
Cox and Hennis’s Kik Messenger conversation occurred
in two distinct times: (1) from August 24 to 27, 2015, and
(2) from November 22, 2015 to January 18, 2016. The
indictment charged violations of child pornography laws
only in the latter period.
Before trial, Cox sought to exclude evidence of the initial
August 2015 exchange. The district court denied Cox’s
motion. The district court reasoned that while the August
2015 messages were not admissible as direct evidence of
Cox’s December 2015 crimes, the messages were admissible
under Federal Rule of Evidence 404(b) to prove Cox’s
identity as the JadeJeckel user and to prove an absence of
mistake. The district court also found the August 2015
communications were not unduly prejudicial under Federal
Rule of Evidence 403.
38
18 U.S.C. § 2251(d)(1)(A) (emphasis added).
UNITED STATES V. COX 17
With this appeal, Cox argues that the district court erred
in admitting the August 2015 messages under Rule 404(b)
and 403.
1. Rule 404(b)
Rule 404(b)(1) says that “[e]vidence of a crime, wrong,
or other 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.” Nonetheless, the Rule
provides that such other-act “evidence may be admissible for
another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake,
or lack of accident.” 39
The Ninth Circuit uses a four-part test to determine the
admissibility of evidence under Rule 404(b):
Such evidence may be admitted if: (1) the
evidence tends to prove a material point;
(2) the other act is not too remote in time;
(3) the evidence is sufficient to support a
finding that defendant committed the
other act; and (4) (in certain cases) the act
is similar to the offense charged. 40
“The government ‘has the burden of proving that the
evidence meets all of the above requirements.’” 41 This court
39
Fed. R. Evid. 404(b)(2).
40
United States v. Bailey, 696 F.3d 794, 799 (9th Cir. 2012) (quoting
United States v. Romero, 282 F.3d 683, 688 (9th Cir. 2002)).
41
Id. (quoting United States v. Arambula-Ruiz, 987 F.2d 599, 602
(9th Cir. 1993)).
18 UNITED STATES V. COX
reviews a district court’s admission of Rule 404(b) evidence
for an abuse of discretion. 42
Here, the district court did not abuse its discretion when
it admitted the August 2015 messages under Rule 404(b).
As to the first requirement, the August 2015 Hennis-Cox
exchange tends to prove two material issues—Cox’s use of
the JadeJeckel account (identity) and the absence of mistake.
The August 2015 messages show Cox’s strong interest in
child pornography, negating the possibility that the later
child pornography transmissions were mistakes. The
August messages also included substantial evidence
identifying Defendant Sarah Cox as using the JadeJeckel
moniker. For example, in the August 2015 exchanges,
JadeJeckel sent a non-public nude selfie of Cox and
described personal information that applied to Cox.
As to the timeliness requirement, the August 2015
exchange occurred approximately three to four months
before the charged conduct. 43
With regards to the need to show that Cox committed the
earlier acts, enough evidence suggested that Cox was the
August 2015 JadeJeckel user. As described, there was
considerable evidence identifying Cox as JadeJeckel. 44
42
United States v. Carpenter, 923 F.3d 1172, 1180–81 (9th Cir.
2019).
43
See United States v. Lozano, 623 F.3d 1055, 1059-60 (9th Cir.
2010) (per curiam) (concluding that three years was not too remote).
44
See Romero, 282 F.3d at 688 (observing that the third prong of
our Rule 404(b) test is a “low threshold”).
UNITED STATES V. COX 19
In consideration of the final requirement, the August
2015 messages were similar to the November 2015 to
January 2016 conversations, which included the criminal
acts charged. Both sets of messages involved the same
participants and their shared interest in child pornography.
The Government satisfied its Rule 404(b) burden. The
district court did not abuse its discretion in admitting the
August 2015 conversation under Rule 404(b) to prove Cox’s
identity and absence of mistake.
2. Rule 403
“Even if the proffered evidence satisfies these [four Rule
404(b)] requirements, the district court should decline to
admit it [under Rule 403] if its probative value is
substantially outweighed by the danger of unfair
prejudice.” 45 We review the district court’s admission of
evidence under Rule 403 for an abuse of discretion. 46
We are satisfied that the district court did not abuse its
discretion under Rule 403 when it admitted the August 2015
Kik conversation.
The August 2015 exchange’s probative value was
substantial. The trial largely concerned only one contested
issue—the identity of JadeJeckel. The August exchange
included significant evidence linking Cox to the JadeJeckel
account.
45
United States v. Banks, 514 F.3d 959, 976 (9th Cir. 2008) (internal
quotation marks omitted).
46
United States v. Flores-Blanco, 623 F.3d 912, 919 n.3 (9th Cir.
2010).
20 UNITED STATES V. COX
As to the danger of unfair prejudice, the August 2015
messages included prejudicial evidence. In the August 2015
messages, Cox and Hennis discussed murdering a mother to
steal a child and their desire to kidnap, enslave, and rape
children. But other-act evidence in sex-crimes cases is often
emotionally charged and inflammatory, and this does not
control the Rule 403 analysis. 47
Other-act evidence should be considered in the context
of each case. 48 Here, the August 2015 messages were
prejudicial but no more prejudicial than the November 2015
to January 2016 messages. The November 2015 to January
2016 messages included actual child rape and child sexual
assault images and videos. In this context, the August 2015
messages were not unduly prejudicial.
The district court recognized that the August 2015
messages were potentially prejudicial but found that their
probative value justified admission. “The district court is to
be given ‘wide latitude’ when it balances the prejudicial
47
See United States v. LeMay, 260 F.3d 1018, 1027–30 (9th Cir.
2001) (concluding that evidence of defendants’ prior acts of child
molestation, admitted under Federal Rule of Evidence 414, did not need
to be excluded under Rule 403).
48
United States v. Jayavarman, 871 F.3d 1050, 1064 (9th Cir. 2017)
(“That [probative] value was not substantially outweighed by any risk of
unfair prejudice that might have arisen from the evidence, especially in
the context of other evidence adduced at trial.”); see also LeMay,
260 F.3d at 1031 (“[E]vidence of a defendant’s prior sex crimes will
always present the possibility of extreme prejudice, and that district
courts must accordingly conduct the Rule 403 balancing inquiry in a
careful, conscientious manner that allows for meaningful appellate
review of their decisions.”).
UNITED STATES V. COX 21
effect of proffered evidence against its probative value.” 49
Here, the district court did not abuse its discretion in
admitting the evidence.
III. CONCLUSION
Based on the plain statutory language, we hold that one-
to-one communications can satisfy the legal definition of
“notice” under 18 U.S.C. § 2251(d)(1). Applying this
construction to the instant case, we conclude that a rational
trier of fact could find that Cox made a notice offering child
pornography when she sent a one-to-one electronic message
linking to a Dropbox account that contained child
pornography. We also hold that the district court did not
abuse its discretion when it admitted the uncharged August
2015 messages under Federal Rule of Evidence 404(b).
The judgment of conviction is AFFIRMED.
49
United States v. Higuera-Llamos, 574 F.3d 1206, 1209 (9th Cir.
2009) (quoting United States v. Spencer, 1 F.3d 742, 744 (9th Cir.
1993)).