                    United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 08-3763
                                ________________

United States of America,                *
                                         *
            Appellee,                    *
                                         *      Appeal from the United States
      v.                                 *      District Court for the
                                         *      Southern District of Iowa.
Kerwin Lamont Summage,                   *
                                         *
            Appellant.                   *

                                ________________

                            Submitted: June 12, 2009
                                Filed: July 31, 2009
                                ________________

Before LOKEN, Chief Judge, JOHN R. GIBSON and GRUENDER, Circuit Judges.
                            ________________

GRUENDER, Circuit Judge.

      Following a jury trial, Kerwin Lamont Summage was convicted of two counts
of production of child pornography, in violation of 18 U.S.C. § 2251(a) and (e), and
one count of possession of child pornography, in violation of 18 U.S.C. §
2252(a)(4)(B) and (b)(2). The district court1 sentenced Summage to 720 months’
imprisonment. Summage appeals his conviction. For the following reasons, we
affirm.


      1
        The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa.
I.    BACKGROUND

      In July 2004, J.W., Summage’s mentally handicapped cousin, went to the police
in Davenport, Iowa, along with his sister and mother to report a crime. They told
Detective Brandon Noonan that Summage, whom J.W. feared, took J.W. to
Summage’s apartment and offered J.W. money if he would have sex with a woman
who was waiting naked in Summage’s bedroom. The woman undressed J.W., had
him lay on the bed, and then performed oral sex on him while Summage filmed and
took photographs of the encounter.

      In response to J.W.’s report, Julie Walton, who worked part-time as an assistant
county attorney and who also worked at a private law firm that had previously
represented Summage in a child custody matter, presented an application for a search
warrant to search Summage’s residence to an Iowa state magistrate judge. The judge
issued the search warrant based on an affidavit executed by Detective Noonan. The
warrant authorized police to seize the following items: videotapes and DVDs,
pornographic pictures, video or digital recording devices and equipment, equipment
used to develop or upload or download photographs or movies, and computers.

       Police executed the search warrant the next day, finding and seizing camera
equipment, computer equipment, films and other evidence. On Summage’s computer,
police found images of children engaged in sexually explicit conduct. Police also
discovered homemade 8-millimeter films with sexually explicit content. Summage
appeared to be directing or recording portions of some of the films. On most of the
films, Summage’s voice is heard, and on some of the films he appears in a mirror
while holding or operating the camera. One of the films depicts Melissa Brown,
Summage’s girlfriend and the mother of two of his children, performing oral sex on
her infant son, X.B. Another film contains a clip of Summage standing over a three-
year-old girl, later identified as Brown’s daughter, J.T., masturbating while his penis
is next to her exposed vagina.


                                         -2-
      On October 14, 2005, a federal grand jury returned an indictment charging
Summage with producing and possessing child pornography. Summage moved to
suppress the evidence found during the search of his residence, arguing that the
affidavit filed with the search warrant application failed to establish probable cause
and that the warrant lacked particularity. The district court granted the motion, but we
reversed, concluding that the affidavit was sufficient to establish probable cause
because

      [a]lthough the affidavit did not specifically name the crime that had been
      committed, the alleged facts support a finding of probable cause to
      believe that Summage’s actions constituted criminal
      conduct—specifically the solicitation of prostitution or
      pandering—given the fact that Summage had offered money in exchange
      for [J.W.’s] services in a sex act.

United States v. Summage (Summage I), 481 F.3d 1075, 1079 (8th Cir. 2007)
(footnotes omitted), cert. denied, 552 U.S. ---, 128 S. Ct. 875 (2008). We also
determined that the warrant was not overbroad or lacking in particularity because “no
indication was given regarding the nature of the format in which the sought-for video
and photographs were created or stored, [so] it was necessary to search a broad array
of items for the relevant materials.” Id. at 1079-80.

       Following our decision and the issuance of our mandate on June 19, 2007,
Summage filed a petition for a writ of certiorari on September 6, 2007. The district
court scheduled Summage’s trial to start on October 29, 2007, but, for unexplained
reasons, the trial was not held then. The Supreme Court denied Summage’s petition
for a writ of certiorari on January 7, 2008. Summage v. United States, 128 S. Ct. 875
(2008). On February 26, 2008, Summage filed a motion to dismiss the indictment
based on the Speedy Trial Act and the Sixth Amendment. On March 26, 2008, the
district court received notice of the denial of Summage’s petition for a writ of



                                          -3-
certiorari. After a hearing, the district court granted Summage’s motion based on the
Speedy Trial Act and dismissed the indictment without prejudice.

       The Government presented the matter to another grand jury, which returned a
substantially similar indictment on May 13, 2008. On June 11, 2008, Summage filed
a motion to suppress and requested a Franks2 hearing. The district court denied the
motion. On June 18, 2008, Summage filed a motion for a continuance of the trial
setting, claiming that he and his counsel were “not yet fully prepared for trial.” The
district court denied Summage’s motion. On June 20, 2008, Summage filed a motion
to proceed pro se at trial. Before the trial began on June 23, 2008, the district court
thoroughly warned Summage of the dangers and risks of proceeding pro se. After
hearing the warning, Summage confirmed that he knowingly and voluntarily gave up
his constitutional right to representation. However, Summage requested that standby
counsel be present at the table with him to assist with technical aspects of the trial,
such as objections, jury selection, his opening statement and the examination of
witnesses. The district court denied Summage’s request for “hybrid” representation
because “[e]ither [Summage] has a lawyer or he doesn’t have a lawyer.” When
Summage stated that he might not be “familiar with” the “little minute . . . procedural
matters,” the district court warned him that those matters “might seem minute, but . . .
those little minute things could turn out to be major things, and if you don’t know
them like a lawyer, you can suffer greatly because of that.” Even after acknowledging
that warning and the district court’s statement that it would not permit hybrid
representation, Summage continued to express his desire to represent himself.

       Following the trial, the jury found Summage guilty on all counts. Summage
appeals his conviction, arguing that the district court erred in denying his motion to
suppress, in failing to dismiss the initial indictment with prejudice under the Speedy
Trial Act and the Sixth Amendment, in denying his request for hybrid representation,
in denying his motion for a continuance, and in multiple evidentiary rulings.


      2
       Franks v. Delaware, 438 U.S. 154 (1978).

                                          -4-
II.   DISCUSSION

      A. Motion to Suppress

      In reviewing a denial of a motion to suppress, we review the district court’s
factual determinations for clear error and its legal conclusions de novo. United States
v. Clarke, 564 F.3d 949, 958 (8th Cir. 2009).

       Initially, Summage renews the following arguments from his previous appeal
concerning the search warrant: that the application and affidavit were insufficient to
support a finding of probable cause; that the application and affidavit were unclear
about what type of criminal activity was alleged to have occurred; that the application
was vague; that there was an insufficient nexus between the place to be searched and
the evidence sought; and that the search warrant was overbroad and lacked
particularity under the Fourth Amendment. Because we resolved all of those issues
in Summage’s previous appeal, see Summage I, 481 F.3d at 1077-80, we will not
review any of them now, see United States v. Stuart, 689 F.2d 759, 762 (8th Cir.
1982) (“This is a classic case of a litigant impermissibly attempting to relitigate the
same claim . . . in violation of well established principles of res judicata . . . .”).

       In addition to those arguments, Summage raises three new arguments regarding
the search warrant: (1) that the search warrant was overbroad and lacked particularity
because it sought materials protected under the First Amendment; (2) that his due
process rights were violated because the assistant county attorney who presented the
search warrant application was employed by a law firm Summage had previously
retained; and (3) that Summage should have been allowed to present evidence at a
Franks hearing.

             1. Breadth and Particularity

       Summage first argues that the search warrant was overbroad and lacked
particularity because it allowed police to seize materials protected by the First

                                         -5-
Amendment; namely, non-obscene pornography. We have previously explained that
“where [a search] warrant authorizes seizure of materials protected by the [F]irst
[A]mendment, the requirements of the Fourth Amendment must be applied with
scrupulous exactitude.” United States v. Frederickson, 846 F.2d 517, 519 (8th Cir.
1988) (internal quotation omitted). Here, those Fourth Amendment requirements were
applied with scrupulous exactitude. In Summage I, we considered Summage’s Fourth
Amendment arguments and explicitly found that the search warrant was not overbroad
or lacking in particularity. Summage I, 481 F.3d at 1080. As we explained, because
there was no indication of the “nature of the format in which the sought-for video and
photographs were created or stored, it was necessary to search a broad array of items
for the relevant materials.” Id. at 1079-80. “The requirement of particularity must be
assessed in terms of practicality.” Id. at 1079. As a practical matter, it was reasonable
to allow police to seize the items potentially containing the relevant materials even
though some of the seized material might be protected by the First Amendment,
particularly since “it is frequently difficult, and often times more intrusive to an
individual’s privacy, to perform an on-site review of certain items.” Id.; see also
United States v. Upham, 168 F.3d 532, 535 (1st Cir. 1999) (“As a practical matter, the
seizure and subsequent off-premises search of the computer and all available disks
was about the narrowest definable search and seizure reasonably likely to obtain the
images.”). Thus, the search warrant did not violate the First Amendment by allowing
police to seize materials protected by the First Amendment because there was
probable cause to believe that those materials also contained evidence of a crime.

             2. Due Process

      Summage also claims that his due process rights were violated because Julie
Walton, the part-time assistant county attorney who presented the application for the
search warrant to the Iowa state magistrate judge, also worked at a private law firm
that had previously represented Summage in a child custody dispute. Summage
argues that this created a conflict of interest that represented a “serious breach of the
duty of loyalty that an attorney owes his client,” Williams v. Lockhart, 849 F.2d 1134,
1138 (8th Cir. 1988), and thus violated his Fifth Amendment right to due process. We

                                          -6-
review de novo Summage’s constitutional argument that his due process rights were
violated. See United States v. Finck, 407 F.3d 908, 916 (8th Cir. 2005).

       To demonstrate a violation of due process, a defendant must establish that he
was actually and substantially prejudiced. United States v. Gladney, 474 F.3d 1027,
1030 (8th Cir. 2007). Summage has failed to establish, or even allege, that he was
prejudiced by Walton’s actions. He does not claim that Walton improperly used any
information gleaned from her firm’s prior representation of him. Furthermore,
although Walton presented the application for the search warrant, an independent
magistrate judge issued the search warrant. Summage does not suggest that the
magistrate judge was biased or acted inappropriately in issuing the search warrant.
Summage also has not shown that, had the application been presented by a different
assistant county attorney, the magistrate judge would not have issued the search
warrant. Cf. Hunt v. Houston, 563 F.3d 695, 704 (8th Cir. 2009) (stating, in a habeas
challenge under 28 U.S.C. § 2254, “[t]o demonstrate prejudice, [a party] must show
a reasonable probability that, but for the alleged constitutional violations, the result
of the proceeding would have been different”); United States v. Tyndall, 521 F.3d 877,
881 (8th Cir. 2008) (noting, in rejecting a claim that the defendant’s due process rights
were violated when the prosecutor failed to comply with Brady, “no prejudice can be
shown unless there is a reasonable probability that the verdict would have been
different”), cert. denied, 555 U.S. ---, 129 S. Ct. 997 (2009). Accordingly, we
conclude that Summage’s due process rights were not violated.

             3. Franks Hearing

       Summage next argues that he was entitled to a hearing under Franks v.
Delaware because although Detective Noonan disclosed in the search warrant
affidavit that J.W. was “mentally handicapped,” he failed to provide other information
by which the magistrate judge could assess J.W.’s credibility, such as whether J.W.
was a ward of a conservator or a guardian, whether he was in an assisted-living
facility or lived alone, or what educational level he had attained. To obtain a Franks
hearing, the defendant must make a substantial preliminary showing that the affiant’s

                                          -7-
statement or omission was deliberately false or demonstrated reckless disregard for
the truth and that the statement or omission was essential to the magistrate judge’s
finding of probable cause. Franks, 438 U.S. at 155-56. This requirement is “not
easily met.” United States v. Gabrio, 295 F.3d 880, 883 (8th Cir. 2002). When a
defendant claims he is entitled to a Franks hearing based on information that was
omitted from the affidavit, he must “prove by a preponderance of the evidence that the
applying officer omitted facts in reckless disregard of whether the omission made the
affidavit misleading and that, if supplemented by the ‘clearly critical’ information
omitted, the affidavit would not have supported a finding of probable cause.” United
States v. Montes-Medina, Nos. 08-2940, 08-2970, --- F.3d ---, slip op. at 9 (8th Cir.
July 7, 2009) (quoting United States v. Williams, 477 F.3d 554, 559 (8th Cir. 2007)).
We review the district court’s decision to deny a Franks hearing for abuse of
discretion. United States v. Snyder, 511 F.3d 813, 816 (8th Cir.), cert. denied, 554
U.S. ---, 128 S. Ct. 2947 (2008).

        In claiming that he was entitled to a Franks hearing, Summage fails to argue
that Detective Noonan omitted the information “in reckless disregard of whether the
omission made the affidavit misleading,” or that the affidavit would not have
supported a finding of probable cause if it had included the information. See Montes-
Medina, slip op. at 9. Moreover, we are satisfied that the omitted information is not
“clearly critical” such that had it been included, the affidavit would not have
supported a finding of probable cause. Detective Noonan included the fact that J.W.
was mentally handicapped in his affidavit. The omitted information would add very
little to the court’s ability to assess J.W.’s credibility. Thus, Summage has not made
the substantial preliminary showing necessary for a Franks hearing. Therefore, we
conclude that the district court did not abuse its discretion in denying Summage a
Franks hearing.

      B. Speedy Trial

     Because Summage’s trial had not begun by February 2008, Summage filed a
motion to dismiss the indictment, alleging violations of the Speedy Trial Act and the

                                         -8-
Sixth Amendment. The district court granted the Speedy Trial Act claim but denied
the Sixth Amendment claim and dismissed the indictment without prejudice. The
Government then refiled the charges and tried him promptly. Summage appeals,
arguing that the district court should have dismissed the original indictment with
prejudice and also should have granted his motion under the Sixth Amendment.

             1. Speedy Trial Act

      The parties do not dispute that the district court appropriately dismissed the
indictment under the Speedy Trial Act. The issue here is whether the indictment
should have been dismissed with prejudice. We review a district court’s decision to
dismiss an indictment with or without prejudice based on a Speedy Trial Act violation
for abuse of discretion. United States v. Becerra, 435 F.3d 931, 935 (8th Cir. 2006).

      The Speedy Trial Act provides that

      [i]f a defendant is not brought to trial within the time limit required by
      section 3161(c) as extended by section 3161(h), the information or
      indictment shall be dismissed on motion of the defendant. . . . In
      determining whether to dismiss the case with or without prejudice, the
      court shall consider, among others, each of the following factors: the
      seriousness of the offense; the facts and circumstances of the case which
      led to the dismissal; and the impact of a reprosecution on the
      administration of this chapter and on the administration of justice.

18 U.S.C. § 3162(a)(2). We are also to consider the prejudice to the defendant
resulting from the Speedy Trial Act violation. United States v. Taylor, 487 U.S. 326,
334 (1988).

      Turning to the Speedy Trial Act factors, first, Summage concedes that the
charges are very serious. “When the crime is serious, the court should dismiss with
prejudice only for a correspondingly serious or prejudicial delay.” United States v.
Cardona-Rivera, 64 F.3d 361, 363-64 (8th Cir. 1995). According to the district court,


                                         -9-
187 non-excludable days passed before Summage filed his motion to dismiss, or 117
days beyond the 70-day limit. We acknowledge that this is a lengthy delay. However,
serious delay alone does not require a dismissal with prejudice. As discussed more
thoroughly below, Summage has failed to establish that the delay prejudiced him.
Second, the facts and circumstances leading to the dismissal favor a dismissal without
prejudice. Much of the delay consisted of the time between the issuance of our
mandate in Summage I and the Supreme Court’s denial of Summage’s petition for a
writ of certiorari, during which time neither party filed a motion to stay our mandate.
Summage does not claim that the Government caused the delay. Rather, he states that
“responsibility for the greatest delay, about 120 days, falls squarely on the court
system itself.” “When the delay is not attributable to the government, but to the
[c]ourt, dismissal with prejudice is not favored.” Id. at 364; see also United States v.
Koory, 20 F.3d 844, 848 (8th Cir. 1994) (“The circumstances do not favor dismissal
with prejudice . . . where there is no showing that the claimed negligence was in
reality an attempt to obtain a tactical advantage for the government or that the
government regularly or frequently failed to meet the time limits of the Act.”). As the
district court noted in its order,

      [u]nfamiliar with U.S. Supreme Court procedures, court personnel acted
      as though a petition for certiorari was equivalent to an appeal to the court
      of appeals and waited for a mandate to be filed with this court.
      Regardless of this mistake, no one . . . informed this court of the U.S.
      Supreme Court’s denial of the petition for certiorari until March 26,
      2008.

Third, the impact of reprosecution will not undermine the administration of justice,
particularly since Summage does not suggest that the Government acted in bad faith.
See United States v. Richardson, 537 F.3d 951, 958 (8th Cir. 2008), cert. denied, 556
U.S. ---, 129 S. Ct. 2378 (2009). On the contrary, if the Government was not allowed
to reprosecute Summage for such a serious crime, society’s confidence in the justice
system would be undermined. See United States v. Kramer, 827 F.2d 1174, 1179 (8th
Cir. 1987).


                                         -10-
        Finally, Summage has not established that he was prejudiced by the violation
of the Speedy Trial Act. He claims only that there are “witnesses whose memory of
specific events may have been compromised due to the passage of time or due to other
factors.” (Emphasis added.) One such witness who Summage claims might have
given him an alibi was already dead by October 2007, within the 70-day time limit,
so the violation of the Speedy Trial Act did not prejudice him in regard to that witness.
Summage also failed to establish prejudice regarding any other possible witnesses as
a result of the delay. He points to his cousin whose whereabouts are currently
unknown, his half-brother who has moved away, former Department of Human
Services social workers and police officers, another cousin whose memory “is likely
to have faded,” and other individuals who knew Melissa Brown. But Summage does
not elaborate on when any of these witnesses became unavailable, the substance of
their testimony, or how their testimony would have changed the outcome of the trial.
We are not convinced by Summage’s vague references to potential “impeachment
evidence against Ms. Brown at trial, or . . . corroborative evidence to substantiate the
defense theory.” Summage also claims prejudice based on strains to family ties and
relationships, negative publicity regarding the criminal charges, and a delay in
receiving non-emergency medical care, but these all may occur in criminal
prosecutions generally, without regard to a speedy trial violation. See Richardson,
537 F.3d at 958 (affirming the district court’s finding that Richardson was not
prejudiced by strain on family ties and relationships because “strain occurs as a result
of criminal prosecutions generally, regardless of any speedy-trial violation”). After
considering the various factors, we find that the district court did not abuse its
discretion under the Speedy Trial Act in deciding to dismiss the indictment without
prejudice.

             2. Sixth Amendment

        “We review the district court’s findings of fact on whether a defendant’s right
to a speedy trial was violated [under the Sixth Amendment] for clear error but review
its legal conclusions de novo.” United States v. Aldaco, 477 F.3d 1008, 1016 (8th Cir.
2007).

                                          -11-
       Initially, we must determine whether the delay between indictment and
Summage’s motion to dismiss was presumptively prejudicial. See Doggett v. United
States, 505 U.S. 647, 651-52 (1992) (explaining that to trigger a Sixth Amendment
speedy trial analysis, the defendant “must [first] allege that the interval between
accusation and trial has crossed the threshold dividing ordinary from ‘presumptively
prejudicial’ delay”). If so, we proceed to analyze the four factors governing the Sixth
Amendment’s speedy trial protections under Barker v. Wingo, 407 U.S. 514 (1972).
Here, we assume the delay of more than two years between indictment and
Summage’s motion to dismiss was presumptively prejudicial. See United States v.
Jeanetta, 533 F.3d 651, 656 (8th Cir.) (“A delay approaching one year may meet the
threshold for presumptively prejudicial delay requiring application of the Barker
factors.”), cert. denied, 556 U.S. ---, 129 S. Ct. 747 (2008). Thus, in determining
whether Summage’s Sixth Amendment rights were violated, we consider: “1) the
length of delay; 2) the reason for delay; 3) whether the defendant asserted the right to
a speedy trial; and 4) whether the defendant suffered any prejudice.” Id. (citing
Barker, 407 U.S. at 530).

        First, two years is indeed a lengthy delay. Second, “we consider the reasons for
the delay and evaluate ‘whether the government or the criminal defendant is more to
blame.’” Id. at 777 (quoting Doggett, 505 U.S. at 651). Here, the parties each bear
some responsibility for the delay. The trial was continued several times at Summage’s
request so that he could obtain new counsel. The bulk of the delay occurred when the
Government appealed the district court’s grant of Summage’s motion to suppress and
Summage subsequently petitioned the Supreme Court for a writ of certiorari. During
that time, neither party sought a stay of the issuance of our mandate, nor did they seek
a trial setting from the district court after our mandate issued. Summage does not
claim that the Government intentionally caused any delay. See United States v.
Shepard, 462 F.3d 847, 864 (8th Cir. 2006) (“[T]here is no evidence that the
Government intentionally caused any delay or filed pretrial motions to cause delay in
order to gain a tactical advantage.”). Summage attributes responsibility for the bulk
of the delay to the court, not to the Government. Third, Summage did not assert his
right to a speedy trial until he filed his motion to dismiss on February 26, 2008, nearly

                                          -12-
four months after his October 29, 2007 trial date passed. When the Supreme Court
denied Summage’s petition for writ of certiorari, Summage did nothing to inform the
district court and made no effort to seek an immediate trial. Fourth, Summage failed
to establish that he suffered any prejudice from the delay, as discussed above. At most
he listed the names of people who he vaguely claimed would have been able to offer
some evidence to impeach Melissa Brown, his own witness, or to provide
“corroborative evidence to substantiate the defense theory.” Summage’s assertions
were insufficient to meet his burden. Accordingly, we conclude that Summage’s right
to a speedy trial under the Sixth Amendment was not violated because, although the
delay was long, the Government was not the primary cause of the delay, Summage did
not promptly assert his right to a speedy trial, and he failed to establish that he
suffered prejudice as a result of the delay.

      C. Hybrid Representation

      Summage appeals the district court’s decision to deny him hybrid
representation, which we review for abuse of discretion. United States v. Einfeldt, 138
F.3d 373, 378 (8th Cir. 1998).

       A defendant has the right to be represented by counsel, see Gideon v.
Wainwright, 372 U.S. 335, 344 (1963), or to represent himself, see Faretta v.
California, 422 U.S. 806, 807 (1975), but a defendant does not have a “constitutional
right to hybrid representation; it is available at the district court’s discretion.”
Einfeldt, 138 F.3d at 378; see also McKaskle v. Wiggins, 465 U.S. 168, 183 (1984).
While a pro se defendant “must be allowed to control the organization and content of
his own defense,” McKaskle, 465 U.S. at 174, he “does not have a constitutional right
to choreograph special appearances by counsel,” id. at 183. Summage knowingly and
voluntarily waived his right to counsel, and the district court did not abuse its
discretion in denying Summage’s request for hybrid representation.




                                         -13-
      D. Continuance Motion

       Notwithstanding his speedy trial arguments, Summage sought a continuance
less than a week before his trial began. Summage argues that the district court denied
him due process by denying his motion for a continuance so that he could prepare his
case. “We will not overturn a trial court’s denial of a continuance unless the trial
court clearly has abused its discretion, because continuances are not favored and
should be granted only when a compelling reason has been shown.” United States v.
Lefkowitz, 125 F.3d 608, 620 (8th Cir. 1997). Summage claimed that he needed the
continuance to review the Government’s discovery files, including the films.
However, by the time the case went to trial, the matter had been pending for more than
two years. Summage filed numerous pro se filings that demonstrated his knowledge
and familiarity with the case. In fact, one of the reasons he gave for representing
himself was that he thought that he was more familiar with the facts of the case than
his attorney was. The district court did not abuse its discretion in denying Summage’s
motion for a continuance. See United States v. Hyles, 479 F.3d 958, 968 n.3 (8th Cir.
2007).

      E. Evidentiary Rulings

      “We review a district court’s evidentiary rulings for clear abuse of discretion,
reversing only when an improper evidentiary ruling affected the defendant’s
substantial rights or had more than a slight influence on the verdict.” United States
v. Two Shields, 497 F.3d 789, 792 (8th Cir. 2007).

        In 1997, while living in Georgia, Summage was convicted of child molestation
and cruelty to children after photographing himself molesting C.M., his then-
girlfriend’s seven-year-old daughter. He appealed the conviction, which was later
overturned. At trial in this case, the district court permitted C.M. to testify about the
incident over Summage’s objection. Summage argues that the district court abused
its discretion by allowing C.M.’s testimony regarding Summage’s abuse of her.


                                          -14-
       Evidence of a defendant’s prior bad acts is generally not admissible to prove the
defendant’s propensity to commit a crime. See Fed. R. Evid. 404(b). However, under
Federal Rule of Evidence 414(a), in “a criminal case in which the defendant is accused
of an offense of child molestation, evidence of the defendant’s commission of another
offense or offenses of child molestation is admissible, and may be considered for its
bearing on any matter to which it is relevant.” Fed. R. Evid. 414(a).3 Even if such
evidence is relevant, it still “may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or needless presentation
of cumulative evidence.” Fed. R. Evid. 403; see United States v. Bentley, 561 F.3d
803, 815 (8th Cir. 2009) (“[E]vidence admitted pursuant to Rule 414 is subject to Rule
403’s balancing test.”), petition for cert. filed, --- U.S.L.W. --- (U.S. June 17, 2009)
(No. 08-11005).

       Summage argues that C.M.’s testimony was improperly admitted in violation
of Rule 403. He argues that the two incidents were too dissimilar to be relevant and
that the evidence of the incident involving C.M. was more prejudicial than probative.
At the time C.M. was abused, she was seven years old, the abuse took place without
her mother’s knowledge, and Summage took Polaroid pictures of her. Here, the
alleged victims were an infant and a toddler, the abuse took place with the knowledge
and participation of the children’s mother, and Summage filmed the children.
Summage also notes that his defenses were different: with respect to the Georgia
incident, he claimed that C.M. fabricated the incident at the instigation of her mother,
who was upset that Summage ended their relationship; here, he claims that Melissa
Brown made the tape with X.B. herself and invited another man to molest J.T. while
she filmed it.



      3
       Under Rule 414(d)(2), the crime of child molestation includes “any conduct
proscribed by” 18 U.S.C. §§ 2251 to 2260A, which includes production and
possession of child pornography.

                                         -15-
      Contrary to Summage’s argument, we find that the incidents are strikingly
similar and that any differences are immaterial. While C.M. was seven and the
victims here were an infant and toddler, all of the victims were children of women he
was dating, which gave him easy access to them. All three children lived with
Summage at the time he abused them. While the incident with C.M. involved
Polaroid pictures and this incident involved films, both featured recording devices that
did not require outside development.

       Moreover, the evidence that Summage abused C.M. was highly probative: it
established that the defendant had a sexual interest in children and had previously
created visual images of children engaged in sexual activity. “In order to exclude
evidence under Rule 403 . . . it must be unfairly prejudicial.” Bentley, 561 F.3d at
815. “‘Because propensity evidence is admissible under Rule 414,’ the fact that
evidence of prior acts suggests a propensity to molest children, ‘is not unfair
prejudice.’” Id. (quoting United States v. Gabe, 237 F.3d 954, 960 (8th Cir. 2001)).
The district court also gave a limiting instruction concerning C.M.’s testimony to the
jury, which “diminishes the danger of unfair prejudice.” United States v. Lucas, 521
F.3d 861, 866 (8th Cir. 2008). In addition, during the final instructions to the jury, the
district court reminded the jury that it could use C.M.’s evidence only “to determine
whether the defendant committed the acts charged in the Indictment” and that it
should “[r]emember that the defendant was not charged in this case with committing
crimes in Georgia and [it could not] automatically find the defendant guilty of any
crime alleged in this case simply because [it] believe[d] the evidence relating to the
alleged molestation in Georgia.” Thus, we conclude that the district court did not
abuse its discretion in allowing C.M.’s testimony.4


      4
        Summage further argues that he should have been allowed to present evidence
that the Georgia conviction related to his alleged conduct with C.M. had been reversed
on appeal. However, the Government introduced only C.M.’s testimony about the
incident, not evidence that Summage was convicted of any crime arising out of that
conduct. See Fed. R. Evid. 414(a). In the absence of evidence of the conviction,
evidence of the subsequent reversal would have confused the jury. The district court

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       Summage also challenges various other evidentiary rulings of the district court.
After carefully considering each of his arguments, we conclude that the district court
did not abuse its discretion with respect to any of these issues. See United States v.
Rabinowitz, 56 F.3d 932, 934 (8th Cir. 1995). Even if any rulings were erroneous,
they would have had little, if any, effect on the jury’s verdict, given the strength of the
evidence against Summage. See United States v. Falls, 117 F.3d 1075, 1078 (8th Cir.
1997).5

III.   CONCLUSION

       Accordingly, we affirm Summage’s conviction.
                       _____________________________




did not abuse its discretion in excluding evidence of the reversal.
       5
        Summage also argues that he was denied effective assistance of counsel. “In
general, an ineffective assistance of counsel claim is not cognizable on direct appeal.
Instead, such a claim is properly raised in a 28 U.S.C. § 2255 action.” United States
v. Lewis, 483 F.3d 871, 873 n.2 (8th Cir. 2007). “We will consider an ineffective
assistance of counsel claim on direct appeal only in exceptional cases where the
district court has developed a record on the ineffectiveness issue or where the result
would otherwise be a plain miscarriage of justice.” Id. Because neither of those
exceptions applies here, we decline to address Summage’s claim at this time.

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