                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-5126


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

DAVID A. HICKS,

                  Defendant – Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  Joseph R. Goodwin,
Chief District Judge. (2:05-cr-00040-1)


Submitted:    December 11, 2008             Decided:   January 20, 2009


Before MICHAEL and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


David O. Schles, LAW OFFICE OF DAVID SCHLES, Charleston, West
Virginia, for Appellant.      Charles T. Miller, United States
Attorney, L. Anna Forbes, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              David A. Hicks appeals his conviction after a jury

trial    of   two     counts      of   production       of     child     pornography,       in

violation      of     18    U.S.C.     § 2251(b)        (2006);        receipt     of    child

pornography, in violation of 18 U.S.C. § 2252(a)(2) (2006); and

two counts of possession of child pornography, in violation of

18 U.S.C. § 2252(a)(4)(B) (2006).                 We affirm.

              Hicks    makes      seven    arguments         on    appeal:         (1)    the

evidence      was     insufficient        to      support         his    conviction        for

production of child pornography; (2) the district court erred by

excluding      evidence        that     someone         other     than     Hicks        placed

pornography on his computer; (3) the district court erred in

permitting the Government to introduce evidence of Hicks’s other

bad acts; (4) the district court erred in denying Hicks’s motion

to    suppress      evidence      obtained       from    the      search      of   his    home

because the search warrant was issued without probable cause;

(5) the district court erred by limiting cross-examination of

child     witnesses;        (6)    Hicks’s       counsel        was      constitutionally

ineffective; and (7) the cumulative effect of errors at trial

deprived Hicks of a fair trial.



                       I.      Sufficiency of the evidence

              We affirm a conviction challenged for sufficiency of

the     evidence      if,    viewing      the     evidence        in    the    light      most

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favorable to the Government, a rational trier of fact could have

found the essential elements of the crime beyond a reasonable

doubt.      Glasser v. United States, 315 U.S. 60, 80 (1942); United

States v. Burgos, 94 F.3d 849, 862-63 (4th Cir. 1996) (en banc).

A    defendant    challenging    a    conviction      for    sufficiency    of       the

evidence faces a heavy burden.               United States v. Beidler, 110

F.3d 1064, 1067 (4th Cir. 1997).             We “consider circumstantial as

well as direct evidence, and allow the [G]overnment the benefit

of    all   reasonable    inferences     from   the    facts      proven   to    those

sought to be established.” United States v. Tresvant, 677 F.2d

1018, 1021 (4th Cir. 1982).             In evaluating the sufficiency of

the evidence, we do not review the credibility of the witnesses

and    assume    that   the   jury   resolved   all     contradictions          in   the

testimony in favor of the Government.                 United States v. Foster,

507 F.3d 233, 245 (4th Cir. 2007), cert. denied, 128 S. Ct. 1690

(2008).

               In order to prove Hicks produced child pornography,

the Government must show:            (1) Hicks knowingly permitted a minor

to    engage     in   sexually   explicit    conduct        for   the   purpose       of

producing a visual depiction; (2) Hicks had custody or control

of the minor; and (3) the visual depiction was produced using

materials transported in interstate or foreign commerce.                        See 18

U.S.C. § 2251(b).         Hicks does not dispute that the individual

depicted was under eighteen when the photographs were taken and

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was    therefore        a    minor;       he   had     custody      and   control      over   the

minor; the photographs depict the minor engaging in sexually

explicit conduct; and the camera used to take the pictures had

been      transported             in       interstate          or     foreign          commerce.

Accordingly,        the       only       element       at    issue    was    whether         Hicks

“knowingly permitted” the minor to engage in sexually explicit

conduct.

              We have reviewed the record and find that sufficient

evidence supported the conclusion that Hicks knowingly permitted

the minor to engage in sexually explicit conduct for the purpose

of producing a visual depiction.                       The Government produced myriad

evidence that Hicks cultivated an environment where prepubescent

girls were encouraged to dance and pose in various states of

undress    in      front       of       cameras.        The     minor     depicted      in    the

photographs        at       issue       testified      that,     though     she   was    unsure

whether the pictures were taken by Hicks or his daughter, Hicks

was present when the photographs were taken.                                 Accordingly, a

rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.



          II.      Exclusion of alternative perpetrator evidence

              We    review          a    district      court’s       decision     to    exclude

evidence for abuse of discretion.                           See United States v. Singh,

518    F.3d     236,        254     (4th       Cir.    2008).        Generally,        criminal

                                                   4
defendants have the right to introduce evidence before a jury

that might influence the determination of guilt.                 See Taylor v.

Illinois, 484 U.S. 400, 408 (1988).             However, this right is not

unlimited, but is subject to certain restrictions.                     See United

States v. Scheffer, 523 U.S. 303, 308 (1998).                For example, the

defendant is required to comply with state and federal rules of

procedure “designed to assure both fairness and reliability in

the   ascertainment       of    guilt   and    innocence.”        Chambers     v.

Mississippi, 410 U.S. 284, 302 (1973).               Evidentiary exclusions

will not be found to violate the Constitution “so long as they

are not arbitrary or disproportionate to the purposes they are

designed   to     serve.”       Scheffer,     523   U.S.    at   308    (internal

quotation marks and citation omitted).

           Hicks sought to introduce evidence suggesting that it

was his estranged wife and her boyfriend who placed the child

pornography      on   Hicks’s    computer.      When      determining     whether

evidence of an alternative perpetrator should be admitted at

trial, other Courts of Appeals have found that such evidence “is

relevant, but there must be evidence that there is a connection

between    the    other     perpetrators      and   the     crime,     not   mere

speculation on the part of the defendant.”             DiBenedetto v. Hall,

272 F.3d 1, 8 (1st Cir. 2001).              See Wade v. Mantello, 333 F.3d

51, 60 (2d Cir. 2003) (finding that third-party animus did not

establish sufficient connection); United States v. Jordan, 485

                                        5
F.3d 1214, 1219 (10th Cir. 2007) (holding there must be a nexus

between crime charged and alleged alternative perpetrator).                              In

each of these cases, the courts balanced two evidentiary values:

the   admission       of    relevant      evidence      probative    of    defendant’s

guilt   or      innocence        with      “the     exclusion       of    prejudicial,

misleading, and confusing evidence.”                 Jordan, 485 F.3d at 1218.

              Though       the   district       court   stated     that    it     used    a

combination of a balancing test and direct connection test, the

tests are merely different sides of the same coin.                              Requiring

the defendant to demonstrate a nexus between the crime charged

and the alleged alternative perpetrator mitigates jury confusion

and undue prejudice, two factors that must be balanced against

the introduction of relevant evidence.                   See Jordan, 485 F.3d at

1219.         Here,      the     district       court    refused     to     allow        the

introduction        of   alternative       perpetrator      evidence      without       the

prior establishment of a connection between such evidence and

the   child    pornography        found    on     Hicks’s   computer.           Hicks    was

unable to provide such a nexus.                   Accordingly, we find that the

district court did not abuse its discretion in excluding Hicks’s

alternative perpetrator evidence.



              III. Admission of evidence of other bad acts

              Hicks next argues that evidence regarding Hicks’s bad

character     and     collateral     bad    acts     should   have       been    excluded

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under Fed. R. Evid. 404(b) and Fed. R. Evid. 403.                      We review the

admission        of   evidence   for    abuse    of   discretion.          See   United

States v. Forrest, 429 F.3d 73, 79 (4th Cir. 2005).

               Rule 404(b), which applies to acts extrinsic to the

crime charged, prohibits the admission of evidence of a person’s

prior conduct solely to prove a defendant’s bad character, or

conduct     in    conformity     with   defendant’s         bad    character.      Such

evidence may be admissible for other purposes, such as “‘proof

of    motive,     opportunity,     intent,      preparation,       plan,   knowledge,

identity, or absence of mistake or accident.’”                      United States v.

Hodge, 354 F.3d 305, 311-12 (4th Cir. 2004) (quoting Fed. R.

Evid. 404(b)).          For such evidence to be admissible under Rule

404(b), it must be “(1) relevant to an issue other than the

general character of the defendant; (2) necessary to prove an

element of the charged offense; and (3) reliable.”                         Id. at 312

(citing United States v. Queen, 132 F.3d 991, 997 (4th Cir.

1997)).     Additionally, the probative value of the evidence must

not    be   substantially        outweighed      by   unfair       prejudice.       Id.

(citing Fed. R. Evid. 403; Queen, 132 F.3d at 997).                               After

reviewing the record, we find that the challenged evidence falls

under    the     exception   to    Rule   404(b)      and    its    probative     value

outweighs any prejudicial effects.




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IV.   Admission of evidence seized during a search of Hicks’s
      home and computer

           Hicks next argues that the district court erred in

denying his motion to suppress evidence seized during a search

of his home and computer.          He contends that the search should

not have been authorized because the application and affidavit

did not establish probable cause that child pornography would be

found in Hicks’s home or computer.

           Factual findings underlying a motion to suppress are

reviewed for clear error, while the legal determinations are

reviewed de novo.       See United States v. Wilson, 484 F.3d 267,

280 (4th Cir. 2007) (citing Ornelas v. United States, 517 U.S.

690, 699 (1996)).       When the district court denies a defendant’s

suppression motion, we review the evidence in the light most

favorable to the Government.        See United States v. Uzenski, 434

F.3d 690, 704 (4th Cir. 2006).             In reviewing the propriety of

issuing a search warrant, the relevant inquiry is whether, under

the   totality   of   the    circumstances,    the    issuing    judge   had    a

substantial basis for concluding that there was probable cause

to issue the warrant.          Illinois v. Gates, 462 U.S. 213, 238

(1983).    The facts presented to the issuing judge need only

convince   a   person   of    reasonable    caution    that     contraband     or

evidence of a crime will be found at the place to be searched.

Texas v. Brown, 460 U.S. 730, 742 (1983).                  We afford great


                                     8
deference to a judge’s findings of probable cause.                                    Gates, 462

U.S. at 236.

              The     lengthy         affidavit      presented       to    the        magistrate

judge in support of the search warrant included statements made

by a minor that Hicks had taken nude photographs of her while

she    was    bathing,          and     that     she   had     later       observed        these

photographs         on     his     home        computer.          This      assertion         was

independently         corroborated        by    another       juvenile,         who    estimated

she    had    seen       thirty        photographs       of   the      minor      on     Hicks’s

computer, and had actually seen Hicks take nude photographs of

the    minor.         Finally,        Hicks’s    wife,     from     whom    he    is     legally

separated,      informed         the    child    protective       services        interviewer

that    she     had      seen    Hicks     download      child      pornography          on   his

computer.       We find this evidence to be more than sufficient to

“convince a person of reasonable caution” that child pornography

would be found on Hicks’s computer and in Hicks’s apartment.

Accordingly, the district court did not err in denying Hicks’s

motion to suppress.



V.     Limitation of the                cross-examination         of      the    Government’s
       child witnesses

              Next, Hicks contends that the district court erred by

refusing to allow defense counsel to cross-examine two child

witnesses about past instances of molestation by perpetrators


                                                 9
other than Hicks.           We review a district court’s decision to

limit cross-examination for abuse of discretion.                          United States

v.   Scheetz,    293     F.3d    175,    184     (4th    Cir.     2002).          The   Sixth

Amendment’s      Confrontation          Clause    guarantees        the      accused      the

right to cross-examine witnesses.                   However, the Confrontation

Clause    does     not   guarantee       counsel        the    right    to    unfettered,

unlimited cross-examination, nor does it prevent a trial judge

from imposing reasonable limits on cross-examination based upon

concerns about harassment, prejudice, confusion of the issues,

witness    safety,       repetition,      or     relevance.         Delaware         v.   Van

Arsdall, 475 U.S. 673, 679 (1986).                       Thus, “the Confrontation

Clause     guarantees        an     opportunity           for      effective            cross-

examination, not cross-examination that is effective in whatever

way, and to whatever extent, the defense might wish.”                              Delaware

v. Fensterer, 474 U.S. 15, 20 (1985)(per curiam)(emphasis in

original).

             Here, it is clear from the record that the district

court judge did no more than impose a reasonable limit on the

cross-examination        based    upon     legitimate          concerns      of   potential

harassment    of    witnesses,      confusion       of        issues,   and       relevance.

Accordingly, we find that such reasonable limitation did not

amount to an abuse of discretion.




                                           10
                  VI.       Ineffective assistance of counsel

            Hicks        next      argues         that     his       trial       counsel     was

ineffective       by        promising       to     offer    alternative             perpetrator

evidence in his opening statement when he was unprepared to do

so during his case-in-chief.                     Claims of ineffective assistance

of counsel are generally not cognizable on direct appeal.                                     See

United    States       v.    King,    119        F.3d    290,    295     (4th    Cir.    1997).

Rather,    to    allow       for   adequate           development        of   the    record,    a

defendant must bring his claim in a 28 U.S.C. § 2255 motion.

See id.; United States v. Hoyle, 33 F.3d 415, 418 (4th Cir.

1994).

            An    exception          to    this       general    rule     exists      when    the

record conclusively establishes ineffective assistance.                                  United

States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999); King,

119 F.3d at 295.             After reviewing the record, we find that it

does not conclusively establish Hicks’s counsel was ineffective

in promising evidence of third-party guilt to the jury when he

was unprepared to provide such evidence.                             Accordingly, Hicks’s

ineffective assistance claim is not cognizable on direct appeal.



                                VI.       Cumulative error

            Finally, Hicks contends that the aggregated impact of

trial    errors    denied       him       due    process    and      a    fair      trial.     In

support   of     this       assertion,      Hicks       cites    a     Tenth     Circuit     case

                                                 11
holding that errors harmless when viewed individually may merit

reversal when viewed collectively.                 See United States v. Rivera,

900 F.2d 1462, 1470 (10th Cir. 1990).                    We disagree with Hicks’s

contention.            Rivera    concerned        the    aggregation         of      actual

constitutional        errors,    “not    the      cumulative    effect       of    all    of

counsel’s actions deemed deficient.”                     Fisher v. Angelone, 163

F.3d   835,     852    n.9    (4th    Cir.    1998).       Here,   Hicks       fails      to

establish     any     constitutional       error    on   the    part    of     his   trial

counsel    or    the    district      court.        As   matters       “that      are    not

unconstitutional individually cannot be added together to create

a constitutional violation[,]” id. at 853, we find that Hicks

fails to demonstrate a denial of his rights to due process or a

fair trial.

              Accordingly,       we     affirm     Hicks’s      convictions.             We

dispense      with     oral     argument      because     the    facts       and     legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                                                  AFFIRMED




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