People of Michigan v. Jonathan Ryan Hastings ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
November 27, 2018
Plaintiff-Appellee,
v No. 336596
Jackson Circuit Court
JONATHAN RYAN HASTINGS, LC No. 15-004918-FH
Defendant-Appellant.
Before: MURPHY, P.J., and GLEICHER and LETICA, JJ.
PER CURIAM.
Defendant, Jonathan Ryan Hastings, appeals as of right his jury trial convictions of
distributing or promoting child sexually abusive material, MCL 750.145c(3), and using a
computer to commit a crime, MCL 750.145d(2)(a). The trial court sentenced Hastings to 270
days in jail, plus three years’ probation, with 1 day credit, plus fines and court fees. We affirm.
I. BACKGROUND
This case centers on text messages that Hastings, a teacher and baseball coach at Jackson
High School, exchanged with a 17-year-old student. At trial, the victim testified that Hastings
initially reached out to her through social media, after which he provided his cellular telephone
number and they began communicating by iMessage. According to the victim, they “started
talking about . . . nude pictures and . . . meeting up after [she] graduated.” Screenshots of the
relevant messages showed that Hastings asked the victim to identify herself with a “too [sic: top]
notch selfie…dare you[.]” Hastings added an emoji showing two eyes. When the victim obliged
with a photograph of herself, Hastings responded, “Perfect human being,” and sent a photograph
of himself in a baseball uniform. They discussed the victim’s family briefly, and Hastings
observed that she received “all the best features” from her parents.
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When Hastings asked for “another Nikki1 pic[ture],” the victim responded, “I believe it’s
your turn[.]” Hastings indicated that he would not send pictures and had already deleted her
photograph, saying, “[I]t’s my career on line nothing against you.”
The victim encouraged Hastings to send something without his face in it, to which he
replied, “You better send real spice if you want that from me.” The victim told Hastings, “I
already have something in mind . . . [.]” Although Hastings had not specifically requested a
nude photograph, the victim, along with the friends with whom she was sharing their messages,
deduced that was what Hastings wanted. The victim planned to obtain a nude photograph from
the Internet to forward to Hastings.
Hastings replied to the victim’s text, stating, “Put [your] money where [your] mouth is[.]”
Hastings also demanded evidence the victim was deleting. And after the victim sent Hastings
screenshots showing that she had deleted the photographs already exchanged, Hastings sent the
victim a clothed photograph of himself, to which she responded with numerous thumbs down
emojis. At that point, the following discussion took place:
Hastings: Set the pace debonaire
Hastings: Leaders go all out
Hastings: If you are so confident
Victim: Lol no I’ve already sent one I don’t think you’ll send one if I go
again.
Victim: So we can take turns
Hastings: Dare you
Hastings: Home coming queens go first
Hastings: [Photograph of naked male chest]
Hastings: ……
Victim: Okay I’ll go now since you finally went haha but if I go again you
have to go again
Hastings: Yes but I want to the good stuff
Victim: Okay haha hold on
1
Earlier Hastings had shared with the victim that he thought she looked like Nicki Minaj in her
Twitter picture. Therein, the victim was wearing a white crop top and short shorts. The victim
was holding a drink and posed sideways, showing both her stomach and legs.
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Hastings: You deleting?
The victim confirmed she was, and then sent a picture of a woman’s naked breast. The victim
testified that she used an image she had found on the Internet. Hastings responded, “Both at
once please but my my wonderful[.]” The victim retorted, “Haha your pic isn’t a full one it’s
your turn!” Hastings responded, “Pretty please[.]” When the victim insisted it was Hastings’s
turn, he sent the victim a clothed photograph of himself with his dog. The victim replied, “Haha
omg!” Hastings then wrote: “Nice aeriola[s],” presumably in reference to the victim’s earlier
photograph. And, yet again, Hastings asked the victim to show him her “screenshot[s] so I know
you are deleting.”
The victim insisted it was Hastings’s turn to send a photograph. When he asked what he
would get, she replied: “You’ll get something in return as usual[.]” Hastings then sent a
photograph of what the victim believed to be his naked buttocks. Hastings then asked her to
“[s]how deleted and screen shotted [sic] pics[.]” He added, “Do not betray me[.]” The victim
assured Hastings she would never do so and sent a screenshot as confirmation.
Hastings later urged the victim, “Please spoil me, let’s have it all of it.” After several
more texts, Hastings wrote: “Let’s see it all[.]” Thereafter, Hastings sent an emoji of a face with
a tongue hanging out. Hastings entreated, “Can’t force you but you do owe me[.]”
Hastings then asked the victim when she graduated and, still later, asked her to “send
your last one on over.” But the victim explained to Hastings that, if she sent him one, he would
“have to go again too[.]” The victim wrote: “I have to see yours all too!” and “You owe me the
goods.” The victim then texted she would graduate on May 22nd, adding Hastings would “have
to show” her his “last one too.” Hastings responded, “It will be after June 3 in person[.]”
Hasting then wrote, “Let’s see it.” The victim again told Hastings she would, but only if he did;
otherwise, “it’ll be June 3rd too[.]”
Hastings complained, “Whaaaaa lame[.]” The victim texted Hastings that she could say
the same about him. Hastings asked the victim to trust him and she told him he could trust her.
Hastings then texted, “Pretty please,” and “Finish it off strong[.]” Again, the victim told
Hastings she wanted to see “something good[.]” She explained that had sent him “good stuff”
and he had sent her “lame stuff.” Hastings then asked the victim to “[s]how [him] full top,”
adding, “That’s nothing new[.]” The victim replied, “Not until you show me something more
and I’ll even show you bottom and what’s not?” Hasting responded, “K” and “You first[.]” The
victim asked Hastings to promise he would “go after” she did. Hastings replied, “Yes[.]” At that
point, the victim sent a photograph depicting a woman in tight underwear, again obtained from
the Internet; one buttock was partially exposed. Hasting’s retorted, “Nice bum!!!!”
Hastings again implored the victim to “promise” she would “never repeat.” Hastings
shared, “I’m sweating this talk right now lol[.]” Hastings then sent the victim a photograph
showing the unclothed area from his mid-neck to slightly below his navel. In response, the
victim continued to assure Hastings she would never betray him and was deleting. Hastings
claimed to be deleting as well.
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At that point, the conversation turned to high school soccer and baseball. Hastings ended
with “[D]on’t be a stranger in room 121[.] See you tomorrow[.]”
At trial, the victim agreed that Hastings did not explicitly ask her to send him nude
photographs, but she inferred that he wanted such images from his comments about “real spice”
and statements like, “Please spoil me, let’s have it all of it.”
II. OTHER-ACTS EVIDENCE
On appeal, Hastings first argues that the trial court abused its discretion in admitting the
testimony of two former Jackson High School students concerning sexual relationships they had
with Hastings after turning 18 years old because the evidence had no probative value, there was
no issue of identity, and the probative value was outweighed by its unfairly high prejudicial
effect. We disagree.
“The decision whether to admit evidence is within the trial court’s discretion and will not
be disturbed absent an abuse of that discretion.” People v McDaniel, 469 Mich 409, 412; 670
NW2d 659 (2003). An abuse of discretion occurs “when the court chooses an outcome that falls
outside the range of principled outcomes.” People v Douglas, 496 Mich 557, 565; 852 NW2d
587 (2014) (quotation marks and citation omitted). However, when “the decision involves a
preliminary question of law, which is whether a rule of evidence precludes admissibility, the
question is reviewed de novo.” McDaniel, 469 Mich at 412. “A preserved error in the admission
of evidence does not warrant reversal unless after an examination of the entire cause, it shall
affirmatively appear that it is more probable than not that the error was outcome determinative.”
People v Burns, 494 Mich 104, 110; 832 NW2d 738 (2013) (quotation marks and citation
omitted).
MRE 401 states that “relevant evidence” is “evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.” In addition, MRE 402 provides that “[a]ll
relevant evidence is admissible, except as otherwise provided by the Constitution of the United
States, the Constitution of the State of Michigan, these rules, or other rules adopted by the
Supreme Court. Evidence which is not relevant is not admissible.” However, pursuant to MRE
404(b)(1):
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, scheme, plan, or system in doing an act, knowledge, identity,
or absence of mistake or accident when the same is material, whether such other
crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
conduct at issue in the case.
The Michigan Supreme Court provided a four-factor test to determine whether other-acts
evidence is admissible under MRE 404(b). First, “the prosecutor must offer the other[-]acts
evidence under something other than a character to conduct theory.” People v VanderVliet, 444
Mich 52, 74; 508 NW2d 114 (1993), amended 445 Mich 1205 (1994). Second, “the evidence
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must be relevant under [MRE] 402 . . . to an issue or fact of consequence at trial.” Id. “Third,
the trial judge should employ the balancing process under [MRE] 403.” Id. at 74-75. That is, “a
determination must be made whether the danger of undue prejudice [substantially] outweighs the
probative value of the evidence” pursuant to MRE 403. Id. at 75 (quotation marks and citation
omitted; alteration in original). “Finally, the trial court, upon request, may provide a limiting
instruction under [MRE] 105.” Id.
As stated in People v Knox, 469 Mich 502, 509-510; 674 NW2d 366 (2004),
[T]he prosecution bears the initial burden of establishing the relevance of
the evidence to prove a fact within one of the exceptions [set forth in] MRE
404(b). Relevance is a relationship between the evidence and a material fact at
issue that must be demonstrated by reasonable inferences that make a material
fact at issue more probable or less probable than it would be without the evidence.
Where the only relevance of the proposed evidence is to show the defendant’s
character or the defendant’s propensity to commit the crime, the evidence must be
excluded. [Quotation marks and citation omitted.]
“[E]vidence of similar misconduct is logically relevant to show that the charged act occurred
where the uncharged misconduct and the charged offense are sufficiently similar to support an
inference that they are manifestations of a common plan, scheme, or system.” People v Sabin
(After Remand), 463 Mich 43, 63; 614 NW2d 888 (2000). Furthermore, “[l]ogical relevance is
not limited to circumstances in which the charged and uncharged acts are part of a single
continuing conception or plot.” Id. at 64. However, “[g]eneral similarity between the charged
and uncharged acts does not . . ., by itself, establish a plan, scheme, or system used to commit the
acts.” Id.To the extent that other-acts evidence is offered to prove identification through modus
operandi, the admissibility of such evidence is considered under a similar test annunciated in
People v Golochowicz, 413 Mich 298; 319 NW2d 518 (1982), which requires that
(1) there is substantial evidence that the defendant committed the similar act (2)
there is some special quality of the act that tends to prove the defendant’s identity
(3) the evidence is material to the defendant’s guilt, and (4) the probative value of
the evidence sought to be introduced is not substantially outweighed by the
danger of unfair prejudice. [People v Waclawski, 286 Mich App 634, 673; 780
NW2d 321 (2009), quoting People v Ho, 231 Mich App 178, 186; 585 NW2d 357
(1998).]
Hastings challenges the testimony offered by two former students of Jackson High
School. Jane Doe2 testified that Hastings first contacted her through Twitter, but she was unsure
if the first contact occurred before or after she graduated. After Doe turned 18 and graduated,
2
As the women attended the high school where Hastings taught, to protect their privacy, we will
refer to them using the pseudonyms Jane Doe and Mary Roe.
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she and Hastings exchanged phone numbers and began communicating primarily by text
messaging and very sporadically via telephone. Their discussions became flirtatious and they
agreed to meet in person to have sex. Doe had sporadic conversations and sexual encounters
with Hastings over a two-year period, during which time she sent Hastings various nude
photographs. Doe testified that Hastings did not expressly ask her for nude photographs, but she
understood he wanted them from his comments and the context of their conversations.
Mary Roe testified that Hastings reached out to her one evening through text or Facebook
Messenger the year after she graduated. Hastings obtained her number via one of her high
school friends. Upon hearing Hastings’s unique area code, she testified it sounded familiar to
her. Although Roe declined Hastings’s initial innocuous invitation to watch his dog, they
continued texting. Their conversations involved flattery and eventually became more intimate,
culminating in a plan to meet in person at Hastings’s home. There, he gave her a tour that ended
in his bedroom, where they had sex. They continued to communicate by text and arranged to
meet again. Hastings instructed Roe to let herself in, undress, and wait in bed for him. After this
encounter, they mutually parted ways. Roe was 19 years old at that time.
Turning to the admissibility of this evidence, the prosecution offered the other-acts
evidence to show Hastings’s identity, intent, and common scheme or plan. These are all proper
purposes pursuant to MRE 404(b)(1). See Knox, 469 Mich at 509.
This other-acts testimony showed that Hastings initiated contact with two female Jackson
High School students through text messages or social media accounts right before or shortly after
they graduated. Thereafter, Hastings engaged in flirtatious conversations with both witnesses
through private text messaging on his cell phone that evolved into discussions of a sexual nature.
Although there is no indication that Hastings asked Roe to provide pictures of herself, Doe
believed Hastings’s suggestive comments were intended to solicit nude photographs. In both
instances, Hastings began a sexual relationship with the witnesses after initiating contact.
This testimony was relevant to an issue at trial; specifically, whether Hastings sent text
messages to the victim with the intent to obtain sexually explicit pictures from her. See id. The
similarity of Hastings’s interactions with former female students and the victim around the time
of their graduations made it more probable that Hastings was the individual who contacted the
victim through Twitter and text messages from his cell phone, see Waclawski, 286 Mich App at
673, which was material to the determination of his guilt, see People v Yost, 278 Mich App 341,
356; 749 NW2d 753 (2008) (“[I]t is well settled that identity is an element of every offense.”).3
3
Hastings argues that his identity was not at issue at trial because it was undisputed that he and
the victim were the individuals communicating in the text messages offered in evidence. We
find this argument unpersuasive. When he was first confronted with the victim’s allegations,
Hastings claimed that the messages were “cut and pasted” and that his phone had been stolen for
24 hours. In addition, Hastings repeatedly challenged the authenticity of the messages during
pretrial proceedings. He argued that, at best, the prosecution could link the victim’s messages to
a cellular telephone number belonging to his mother and used by him, but it could not establish
that Hastings was the one communicating with the victim. And, although it appears that
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In addition, the charged acts (attempting to obtain child sexually abusive material and use of a
computer to commit a crime) and the previous acts “shared sufficient common features to infer a
plan, scheme, or system to do the acts.” Sabin (After Remand), 463 Mich at 66. Again, given
the clear similarities between the prior acts and the charged acts, the trial court could infer that
Hastings developed a plan or scheme to contact Jackson High School students who had recently
graduated or who were about to graduate to obtain sexually explicit photos from them and
initiate a sexual relationship with them.
Further, the probative value of the other-acts evidence was not substantially outweighed
by the danger of unfair prejudice. See VanderVliet, 444 Mich at 74-75; Waclawski, 286 Mich
App at 673. In arguing that Hastings’s conduct did not meet the elements of the charged
offenses, defense counsel emphasized in closing arguments that Hastings did not intend to solicit
a sexually explicit photograph from the victim, he never asked for such a photograph, and the
photographs he received did not actually depict the minor victim. However, the testimony from
the two witnesses was highly probative of Hastings’s intent in sending the text messages to the
victim. In other words, this evidence negated his claim that he did not intend to ask for nude
pictures from the victim. Moreover, the prejudicial effect of this evidence was limited because
both witnesses acknowledged that they were 18 years old and had graduated from high school
when they started their consensual sexual relationships with Hastings.
Finally, the trial court gave the jury the following instruction:
You’ve heard evidence that was introduced to show the defendant
committed improper acts for which he is not on trial. If you believe this evidence,
you must be very careful only to consider it for certain purposes.
You may only think about whether this evidence tends to show the
defendant had a reason to commit the crime, the defendant specifically meant to
commit the crime, the defendant knew what the things found in his possession
were, the defendant acted purposefully – that is, not by accident or mistake or
because he misjudged a situation, the defendant used a plan, system or
characteristic scheme that he has used before or since. And who committed the
crime the defendant is charged with.
You must not consider this evidence for any other purpose. For example,
you must not decide that it shows the defendant is a bad person or that he’s likely
to commit crimes. You must not convict the defendant here because you think
he’s guilty of other bad conduct. All the evidence must convince you, beyond a
reasonable doubt, defendant committed the alleged crime or you must find him
not guilty.
Hastings largely abandoned this defense theory on the second day of trial, evidence of his initial
response was still presented to the jury. Furthermore, in his opening statement, defense counsel
asked the jury to focus on the content of the text messages “if, in fact, you believe that those text
messages did, in fact, come from Mr. Hastings.”
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By instructing the jury in this manner, the trial court lessened the risk of unfair prejudice arising
from the other-acts evidence. See VanderVliet, 444 Mich at 75. See also People v Unger, 278
Mich App 210, 235; 749 NW2d 272 (2008) (“[J]urors are presumed to follow their
instructions.”). Accordingly, the trial court did not abuse its discretion in admitting the other-
acts evidence.4
III. GREAT WEIGHT OF THE EVIDENCE AND SUFFICIENCY OF THE EVIDENCE
Next, Hastings argues that his convictions of distributing or promoting child sexually
abusive material and using a computer to commit a crime were against the great weight of the
evidence and that the evidence presented at trial was insufficient to sustain his convictions. We
disagree.
“This Court reviews for an abuse of discretion the trial court’s denial of a motion for a
new trial on the ground that the verdict was against the great weight of the evidence.” People v
McCray, 245 Mich App 631, 637; 630 NW2d 633 (2001). An abuse of discretion occurs “when
the court chooses an outcome that falls outside the range of principled outcomes.” Douglas, 496
Mich at 565 (quotation marks and citation omitted). “[A] trial court may grant a motion for a
new trial based on the great weight of the evidence only if the evidence preponderates heavily
against the verdict so that it would be a miscarriage of justice to allow the verdict to stand.”
People v Gadomski, 232 Mich App 24, 28; 592 NW2d 75 (1998).
When reviewing a sufficiency of the evidence claim, this Court reviews “the evidence in
a light most favorable to the prosecution to determine whether a rational trier of fact could find
that the prosecution had proved the crime’s elements beyond a reasonable doubt.” People v
Lane, 308 Mich App 38, 57; 862 NW2d 446 (2014). “[C]ircumstantial evidence and reasonable
inferences arising from that evidence can constitute satisfactory proof of the elements of a
crime.” People v Lee, 243 Mich App 163, 167-168; 622 NW2d 71 (2000).
Pursuant to MCL 750.145c(3), “[a] person who distributes or promotes, or finances the
distribution or promotion of, or receives for the purpose of distributing or promoting, or
conspires, attempts, or prepares to distribute, receive, finance, or promote any child sexually
abusive material or child sexually abusive activity is guilty of a felony . . . .” (Emphasis added.)
“Child sexually abusive material” is defined as
any depiction, whether made or produced by electronic, mechanical, or
other means, including a developed or undeveloped photograph, picture, film,
slide, video, electronic visual image, computer diskette, computer or computer-
generated image, or picture, or sound recording which is of a child or appears to
include a child engaging in a listed sexual act; a book, magazine, computer,
computer storage device, or other visual or print or printable medium containing
4
Even if the other-acts evidence had been admitted for a proper as well as an improper purpose
or purposes, a premise we reject, reversal is not be required. See, e.g., Sabin (After Remand),
463 Mich at 61-73; People v Pesquera, 244 Mich App 305, 318-320; 625 NW2d 407 (2001).
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such a photograph, picture, film, slide, video, electronic visual image, computer,
or computer-generated image, or picture, or sound recording; or any reproduction,
copy, or print of such a photograph, picture, film, slide, video, electronic visual
image, book, magazine, computer, or computer-generated image, or picture, other
visual or print or printable medium, or sound recording. [MCL 750.145c(1)(o).]
Erotic nudity, “the lascivious exhibition of the genital, pubic, or rectal area of any person,” is a
listed sexual act. MCL 750.145c(1)(h) and (i). “ ‘[L]ascivious’ means wanton, lewd, and lustful
and tending to produce voluptuous or lewd emotions.” MCL 750.145c(1)(h). For purposes of
this offense, an individual under the age of 18 years old is considered a child. MCL
750.145c(1)(c). Hastings was also convicted of using a computer to commit a crime under MCL
750.145d(1)(a), which states that “[a] person shall not use the internet or a computer, computer
program, computer network, or computer system to communicate with any person for the
purpose of . . . soliciting another person to commit conduct proscribed under” several statutes,
including MCL 750.145c.
At trial, the prosecution presented printouts of the actual text message conversation that
occurred between Hastings and the victim, and the victim read them to the jury. When
discussing the exchange of pictures with the victim, Hastings’s messages included the following
comments: “You better send real spice . . .”; “I want the good stuff”; “Please spoil me, let’s have
it all of it”; and “Let’s see it all[.]” Hastings sent the victim pictures of his bare chest, his naked
buttocks, and the area from his neck to below his navel. And Hastings intimated the victim
could see all of him after graduation. Hastings encouraged the victim to “[f]inish it off strong[.]”
When the victim asked Hastings to show her something more, she offered to show him “bottom
and what’s not?” Hastings responded with “K” and “You first[.]” In addition, Hastings asked
the victim for proof that she was deleting his text messages and turned in his cellular telephone
so that its contents could not be downloaded; both could be construed as consciousness of guilt.
See Unger, 278 Mich App at 226 (reasoning that an attempt to destroy evidence demonstrates a
consciousness of guilt). On top of that, after Hastings was confronted, he falsely claimed his cell
phone had been taken during the time the messages were sent. See, e.g., People v Arnold, 43
Mich 303, 305-306; 5 NW 385 (1880); People v Dandron, 70 Mich App 439, 442-443; 245
NW2d 782 (1976) (a defendant’s “proved-to-be false exculpatory statement[]” can supply
circumstantial evidence of his guilt.) Further, the victim testified that she interpreted Hastings’s
text messages to mean that he wanted her to send him a full naked picture of herself. Finally, the
prosecutor submitted MRE 404(b) evidence from a former Jackson High School student
indicating that Hastings also sought naked pictures via text message. Both that witness and
another former student engaged in sexual relationships with Hastings shortly after graduating
from high school, which suggests that Hastings’s interactions with the victim were motivated by
his sexual desires.
Given the evidence that was presented at trial, including Hastings’s own text messages, a
reasonable jury could conclude beyond a reasonable doubt that Hastings attempted to obtain
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child sexually abusive material from the 17-year-old victim, and that he used a computer5 to do
so. Although the victim did not send a picture of herself, the text messages suggested that
Hastings believed that the pictures were of the victim. Therefore, sufficient evidence was
presented to support Hastings’s convictions. Lane, 308 Mich App at 57. Likewise, the evidence
does not preponderate so “heavily against the verdict . . . that it would be a miscarriage of justice
to allow the verdict to stand.” Gadomski, 232 Mich App at 28.
While we entirely agree with the dissent’s adjectives describing Hastings’s conduct
(“puerile[,]” “stupid[,]” and “entirely inappropriate”), both the jury and trial court concluded it
was also criminal. As it is highly unlikely that a defendant will explicitly ask a minor for “erotic
nudity” or to engage in “the lascivious exhibition of [her] genital, pubic, or rectal area,” the
factfinder here was allowed, as in every case, to rely upon circumstantial evidence in making its
determination. What occurred in this case is a far cry from the innocent childhood nudity
described in People v Riggs, 237 Mich App 584, 587, 590; 604 NW2d 68 (1999). Rather,
viewing the evidence in the light most favorable to the prosecution, it was sufficient to establish
the elements of both crimes beyond a reasonable doubt.6
Affirmed.
/s/ William B. Murphy
/s/ Anica Letica
5
For purposes of violating MCL 750.145d(1), a cellular telephone is considered a computer.
MCL 750.145d(9)(a).
6
The six-part test from United States v Dost, 636 F Supp 828, 832 (SD Cal, 1986), aff’d sub nom
United States v Wiegand, 812 F2d 1239 (CA 9, 1987), discussed by the dissent, was partially
modified on appeal and is neither exhaustive nor controlled by one factor. Importantly, it does
not bind us. Abela v Gen Motors Corp, 469 Mich 603, 607; 677 NW2d 325 (2004) (“Although
lower federal court decisions may be persuasive, they are not binding on state courts.”) Notably,
other courts have criticized or rejected Dost. See generally State v Whited, 506 SW3d 416, 419
(Tenn, 2016) (reviewing the cases and rejecting “the use of the Dost factors as a ‘test’ or an
analytical framework” for Tennessee’s child-exploitation statutes); United States v Batchu, 724
F3d 1, 9 (CA 1, 2013) (“We have been clear that the Dost factors are problematic.”).
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