                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 11a0778n.06

                                                   No. 09-1820

                               UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT
                                                                                                       FILED
                                                                                                 Nov 21, 2011
UNITED STATES OF AMERICA,                                 )
                                                          )                               LEONARD GREEN, Clerk
         Plaintiff-Appellee,                              )
                                                          )
                  v.                                      )    ON APPEAL FROM THE UNITED
                                                          )    STATES DISTRICT COURT FOR THE
DENNIS W. DELANEY,                                        )    EASTERN DISTRICT OF MICHIGAN
                                                          )
         Defendant-Appellant.                             )
                                                          )


Before: MOORE and KETHLEDGE, Circuit Judges; and MARBLEY, District Judge.*

         ALGENON L. MARBLEY, District Judge. In this criminal action tried to a jury,

Defendant-Appellant Dennis Delaney appeals his conviction of sexual exploitation of children,

distribution of child pornography, and possession of child pornography. Delaney appeals his

conviction of four charges in a four-count indictment. He alleges three errors: (1) that the district

court erred in admitting statements in violation of his Fifth Amendment rights because they were

involuntary and taken after he unambiguously requested a lawyer; (2) that the district court erred

in admitting evidence of internet chat transcripts with undercover police officers; and (3) that the

district court erred in denying his Rule 29 motion for acquittal. Because the district court did not

err, We AFFIRM Delaney’s conviction.




        *
          The Honorable Algenon L. Marbley, United States District Judge for the Southern District of Ohio, sitting by
designation.
No. 09-1820
United States v. Delaney

                                      I. BACKGROUND

                                    A. Procedural History

       On September 3, 2008, a grand jury returned a four count Superseding Indictment charging

Defendant Dennis William Delaney with the following offenses: Count I, Sexual Exploitation of

Children, 18 U.S.C. § 2251(a); Counts II and III, Distribution of Child Pornography, 18 U.S.C. §

2252(a)(1); and Count IV, Possession of Child Pornography, 18 U.S.C. § 2252(a)(5)(B). On

November 20, 2008, a jury found Delaney guilty as charged. The district court sentenced Delaney

to 300 months for Count I, 180 months for Counts II and III, and 120 months for Count IV, to be

served concurrently.

                                    B. Factual Background

       In 2002, Delaney began chatting with Amanda Schmidt on the internet in a science

chatroom. At the time, she was 12 or 13 years old, but had listed her age on her Yahoo! profile as

18 years old. Before long, the two were communicating regularly over the internet using instant

messaging. Amanda indicated that Delaney communicated with her using the screen names “Z

Camaro Guy” and “Mich Guy 2482000.” In 2004, when Amanda Schmidt was 14 years old, she

met the defendant, then a 32-year-old man, at a local mall. At the mall, Delaney made plans to meet

Amanda for sex in her home in Grand Rapids.

       When Delaney came to Grand Rapids to meet Amanda for this sexual encounter, he brought

a camera and red latex body paint. After the two engaged in sexual intercourse, Delaney used the

paint to write the words, “Dennis Was Here, 2004” above Amanda’s genitals. Amanda, in turn,




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United States v. Delaney

painted her name above the Delaney’s genitals. Delaney took naked pictures of Amanda with the

latex paint on her genital area, as well as when she later emerged from a shower.

       In August of 2004, Amanda’s mother, Linda Joy Schmidt, observed Amanda get into a

vehicle and asked where Amanda was going, to which Amanda stated she was going to Detroit.

Amanda then accompanied Delaney to his home in Detroit. Linda Schmidt searched Amanda’s

address book and found the name Dennis in her address book with a Detroit area code. When Linda

Schmidt called the number, her daughter called back and Ms. Schmidt demanded that her daughter

come home. Amanda returned home and would later admit that she was with Delaney.

       On September 2, 2004, City of Walker Police Officer Andrew Veen observed a Camaro pull

into a church parking lot at 1:00 a.m. Officer Veen established that Delaney was driving and

Amanda was in the passenger seat. Amanda had no I.D., but told Officer Veen that she was 14 years

old. Officer Veen would testify that Delaney insisted that he believed her age to be 18. An officer

arrested Delaney and another officer drove Amanda home to her mother.

       In November of 2004, Amanda and her friend, Katie, met Delaney and took more pictures.

At trial, Amanda identified a topless picture taken of her by Delaney, and stated that she sent them

to herself via e-mail from his computer. On another occasion, Amanda indicated that her brother

drove her to Delaney’s house, where Delaney and Amanda again engaged in sex.

       In October of 2003, Wyandote Police Detective Richard Weise posed as a mother with a

five-year-old daughter, and began to have online chats with “Z Camaro Guy.” Detective Weise

testified that “Z Camaro Guy” sent pictures of himself and his car to the Detective and that they

discussed sex.


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No. 09-1820
United States v. Delaney

       In 2007, FBI Agent Jenny Emmons posed online as a female seeking an adult male for a

relationship with her minor children and was contacted by “Z Camaro Guy.” Agent Emmons

testified that “Z Camaro Guy” asked questions about her minor children, and stated he was

interested in young girls 10 and older. When asked about “limits,” he responded “none” and stated

that he loves the velvet feeling of the younger. They exchanged pictures, and “Z Camaro Guy”

claimed to have had “experience” with someone as young as 14 years old. Agent Emmons

identified the screen names used as “D Delaney 70” and “Mich Guy 2482000,” and indicated that

she stopped her investigation once she learned that Detective Linda Findlay was also communicating

with and taking a lead role in the investigation of Delaney.

       In June of 2007, Macomb County Detective Linda Findlay began posing online as “Jessica,”

a mother with a 3 year old boy and a 5 year old girl. Detective Findlay used the online identity

“Yaeger Loving Mom” and her profile stated she was interested in “family love” and others

interested in such activity. Detective Findlay testified that “family love” was a term used by people

interested in sex with children.

       Delaney chatted with “Jessica” online as “Z Camaro Guy.” While on his cell phone, Delaney

told her that he was about to be a father and that he wanted to learn about “family love.” Detective

Findlay asked what Delaney wanted to do with her daughter, whereupon he allegedly stated that he

was unsure, but then stated “oral for sure.” When Delaney allegedly asked what the 5 year old’s

experience was, Detective Findlay stated “oral and some penetration.” Delaney again spoke with

Detective Findlay on October 26, 2007, where he allegedly stated that he wanted the five-year-old




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No. 09-1820
United States v. Delaney

to sit on his lap; kiss, hug, remove clothing; then engage in oral sex and penetration. She testified

that Delaney asked her to visit a “pro-incest” website, and talked about a child porn site.

       Once cell phone numbers were exchanged, Detective Findlay obtained a search warrant for

the Defendant’s cell phone subscriber information. Additionally, authorities requested Yahoo! Inc.

to produce documents (subscriber information, contents of e-mails and photographs) in connection

with Yahoo! User I.D. “Mich Guy 2482000.” Yahoo! Inc. provided the requested information.

       Delaney arranged to travel and meet “Jessica” and her two fictitious young children.

Detective Findlay chose an undercover apartment in Harrison Township, Michigan, for the meeting.

On November 1, 2007, Delaney arrived, knocked on the door and was detained by officers, who

seized his camera phone. After being informed of his rights, Delaney stated that he went to the

apartment in an effort to determine if “Jessica” was real, so he could turn her into the authorities.

Delaney subsequently stated that he probably would have taken the five-year-old girl to breakfast,

and although he had a “kink,” he did not like girls that young.

       Detective Chris Kohlmeyer of the Macomb Computer Enforcement Team engages in

undercover online investigations, and testified that he had “chats” with both “Z Camaro Guy” and

“Mich Guy 2482000” in the past. Detective Kohlmeyer ended his contact with Delaney when he

learned that Detective Findlay had been chatting with him in her undercover capacity. Detective

Kohlmeyer participated in the arrest of Delaney at the apartment in Harrison. Delaney’s arrest led

to a search of his email accounts, his residence, and the computers in his home. Police removed

CDs, floppy disks, computers and Amanda Schmidt’s High School I.D. from his residence.




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No. 09-1820
United States v. Delaney

       Secret Service Agent Eric Clark searched Delaney’s laptop, cameras, disks, and CD-ROMs.

Agent Clark located eight pictures showing Amanda Schmidt nude and displaying her genitals with

the words “Dennis Was Here, 2004.” Secret Service Special Agent Chad Cable found computer

chats between “Yeager Loving Mom” and “Z Camaro Guy,” and between Dennis Jay and Delaney.

Additionally, Agent Cable found 53 “child exploitation” images and the pictures of Amanda

Schmidt. Agents Clark and Cable determined that the CDs and videos seized by Macomb County

Police matched the thumbnail images on Delaney’s computer.

       Dennis Jay, a cooperative witness for the defense, testified that Delaney sent him a picture

over the internet of a woman’s genitals with the words “Dennis Was Here, 2004.” Dennis Jay also

testified Delaney believed that a “hacker” might have invaded his (Delaney’s) computer. Agent

Cable examined the electronic evidence and found no evidence of hacking.

       Adam Kelly, a computer expert, conducted an independent analysis of the electronic

evidence in the possession of the Secret Service. Mr. Kelly discovered that the laptop was

purchased on January 27, 2004, and that the registered owner was Hal Cantor. Delaney testified that

he worked for a biomedical research company, and that Hal Cantor (who committed suicide on July

11, 2005) was his supervisor. After Mr. Cantor’s death, Delaney obtained Mr. Cantor’s laptop. Mr.

Kelly testified that the computer records showed the operating system was re-installed on March 28,

2006. While Mr. Kelly verified child pornography images were on the computer, he found no

creation dates. Finally, Mr. Kelly indicated that the metadata on the CDs indicate that they were

burned using Pixmo SDIC software, but no such software was on Delaney’s computer.

       On January 17, 2008, United States Secret Service agents arrested Delaney.


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No. 09-1820
United States v. Delaney

Following his arrest, Special Agents Eby and Clark transported him from his Northville home to the

department field office in Detroit. Agent Eby testified that Delaney did not ask for a lawyer prior

to leaving the house. Agent Clark testified that during the thirty-minute drive from Delaney’s house

to the office, he read Delaney his Miranda warnings from a card in his pocket. Delaney testified

that Clark read him an abbreviated version of the form. According to Clark, Delaney was silent for

ten minutes, and then indicated that he knew his rights and began to talk. While both agents testified

that he did not ask to speak to a lawyer during the drive, Delaney testified that he asked several

times. When they arrived at the station, Delaney was processed. Agent Clark continued to question

him for a 30 to 45 minute period. During the car ride and the processing, Agent Clark discussed

with Delaney the federal sentencing Guidelines and Clark’s notion of “cooperation points.” The

more points Delaney was awarded, Clark told him, the more likely he was to get time taken off his

sentence. Delaney testified that he said that he should be talking to an attorney, but the agents told

him that there would be time for that later.

       During processing, Agent Clark showed Delaney a Miranda form. Clark testified that he

probably told Delaney that he would gain cooperation points that would increase his chances of

going home on the date of his arrest if he signed the Miranda form. After reviewing the form,

Delaney was not sure whether he wanted to sign. But after Clark told him that he would both write

on the form that Delaney refused to sign and take away his cooperation points, Delaney signed the

written Miranda form.

       Agent Clark showed Delany pictures of Amanda. At this point, Delaney said, “I think I

should talk to a lawyer, what do you think?” Agent Clark testified that he responded that if Delaney


                                                  7
No. 09-1820
United States v. Delaney

wanted to talk to a lawyer, he could. Both agents testified that he never followed up on his question,

and instead began to talk.

       Delaney filed a motion to suppress his statements, arguing that his statements were

involuntary and that he had asked for a lawyer seven times. While in custody, he had admitted

knowing Amanda, having sex with her at her house, and photographing her naked body. The district

court denied his motion. The court found that the agents sufficiently informed Delaney of his

Miranda rights and obtained his statements through legitimate means. The court also determined

that Delaney’s assertion that he unambiguously invoked his right to counsel on numerous occasions

was not credible.

       On November 20, 2008, a jury convicted Delaney of one count of Sexual Exploitation of

Children, two counts of Distribution of Child Pornography, and one count of Possession of Child

Pornography. The district court sentenced Delaney to 300 months for Count I, 180 months for

Counts II and III, and 120 months for Count IV.

                                         II. DISCUSSION

                             A. SUPPRESSION OF STATEMENTS

       Delaney argues that statements he made to officers after his arrest were: (1) involuntary

because they were obtained through threats and promises of leniency in violation of the Fifth

Amendment; and (2) obtained in violation of his Fifth Amendment right to counsel.

                                      1. Standard of Review

       In reviewing the denial of a motion to suppress, we review the district court’s findings of fact

for clear error, and its conclusions of law de novo. United States v. Hurst, 228 F.3d 751, 756 (6th


                                                  8
No. 09-1820
United States v. Delaney

Cir. 2000). “In determining the voluntariness of a confession, a reviewing court will not disturb the

trial court's findings concerning specific events surrounding the confession unless clear error appears

on the record.” United States v. Wrice, 954 F.2d 406, 410–11 (6th Cir. 1992). Moreover, in

reviewing a district court’s denial of a motion to suppress an involuntary statement, we must view

the evidence in the light most favorable to the government. United States v. Fowler, 535 F.3d 408,

417 (6th Cir. 2008).

                                       2. Law and Analysis

                                         a. Voluntariness

       Delaney challenges the voluntariness of his confession, which was made subsequent to his

Miranda waiver. He argues that the police did not advise him of his complete Miranda rights, and

that their threat of “cooperation points” amounted to coercion.

       Involuntary or coerced confessions are inadmissible at trial, Lego v. Twomey, 404 U.S. 477,

478 (1972), because their admission is a violation of a defendant’s right to due process under the

Fourteenth Amendment, Jackson v. Denno, 378 U.S. 368, 385–86 (1964). A confession is

involuntary if it is not “‘the product of a rational intellect and a free will.’” Medeiros v. Shimoda,

889 F.2d 819, 823 (9th Cir. 1989) (quoting Townsend v. Sain, 372 U.S. 293, 307 (1963)); see also

Blackburn v. Alabama, 361 U.S. 199, 208 (1960). A “necessary predicate” to finding a confession

involuntary is that it was produced through “coercive police activity.” Colorado v. Connelly, 479

U.S. 157, 167 (1986). Coercive police activity can be the result of either “physical intimidation or

psychological pressure.” Townsend, 372 U.S. at 307, overruled on other grounds by Keeney v.

Tamayo-Reyes, 504 U.S. 1 (1992); see also Blackburn, 361 U.S. at 206 (“[C]oercion can be mental


                                                  9
No. 09-1820
United States v. Delaney

as well as physical, and . . . the blood of the accused is not the only hallmark of an unconstitutional

inquisition.”) We have “established three requirements for a finding that a confession was

involuntary due to police coercion: (i) the police activity was objectively coercive; (ii) the coercion

in question was sufficient to overbear the defendant’s will; and (iii) the alleged police misconduct

was the crucial motivating factor in the defendant’s decision to offer the statement.” United States

v. Mahan, 190 F.3d 416, 422 (6th Cir. 1999).

       The first prong of the Mahan test asks whether the agents’ statements were objectively

coercive. A promise of leniency in exchange for cooperation may be a relevant factor in

determining whether a confession was involuntary. See United States v. Wrice, 954 F.2d 406, 411

(6th Cir. 2002) (holding that “[a] promise of lenient treatment or of immediate release may be so

attractive as to render a confession involuntary”). Nevertheless, such statements usually are

permissible. See Williams v. Withrow, 944 F.2d 284, 289 (6th Cir. 1991) (noting, “we have no doubt

that effective interrogation techniques require, to some extent, a carrot-and-stick approach to

eliciting information from an uncooperative suspect”), rev’d on other grounds, 507 U.S. 680 (1993).

In general, such promises are coercive only “if they are broken or illusory.” United States v.

Johnson, 351 F.3d 254, 262, n.1 (6th Cir. 2003) (defining an illusory promise as “a statement in the

form of a promise, but lacking its substance in that it does not actually commit the police to

undertake or refrain from any particular course of action”); see also Williams, 944 F.2d at 289–90

(holding that confession was coerced because police told suspect that if he told the truth about his

role in the murder, he would not be charged, but if he didn’t talk, he would be charged with murder).




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No. 09-1820
United States v. Delaney

         We have found that “promises to inform a prosecutor of cooperation do not, ipso facto,

render a confession coerced.” United States v. Stokes, 631 F.3d 802, 809 (quoting United States v.

Wiley, 132 F. App’x 635, 640 (6th Cir. 2005)); accord United States v. Shears, 762 F.2d 397,

401–02 (4th Cir. 1985); United States v. Robinson, 698 F.2d 448 (D.C. Cir. 1983); United States v.

Curtis, 562 F.2d 1153, 1154 (9th Cir. 1977), cert. denied, 439 U.S. 910 (1978); United States v.

Pomares, 499 F.2d 1220, 1222 (2d Cir. 1974), cert. denied, 419 U.S. 1032 (1974); United States

v. Springer, 460 F.2d 1344, 1347 (7th Cir.1972). Similarly, promises “to recommend leniency” or

“speculation that cooperation will have a positive effect” do not make subsequent statements

involuntary.1 Wiley, 132 F. App’x at 640 (quoting United States v. Guerrero, 847 F.2d 1363, 1366

(9th Cir. 1995)).

         Here, the agents explained to Delaney that if he cooperated and told the truth, he would get

more points off his ultimate sentence under the federal Sentencing Guidelines. They also explained

that his chances of going home that day were greater if he cooperated. Certainly, the agents made

these statements with the intent to compel Delaney to testify, but they were not false. The agents

did not inform Delaney that he did not have to accept responsibility at that time to receive the

sentence reduction, but the absence of this information does not render the statements illusory.

         1
           In United States v. Tingle, 658 F.2d 1332 (9th Cir. 1981), the Ninth Circuit noted that an officer’s
representation that he would tell prosecutors that a defendant had failed to cooperate would violate a defendant’s Fifth
Amendment right to remain silent. Id. at 1336 n.5. Here, Delaney testified that the agent told him that he could gain
or lose points based on his degree of cooperation. The agent backtracked on this a bit, testifying, “No, I wouldn’t say
lose points, I told him you can gain points based on cooperation, you can gain points for cooperation.” On a spectrum
from cooperation to failure of cooperation, losing points tends toward the failure end but does not amount to an explicit
threat of a longer sentence. See United States v. Harrison, 34 F.3d 886, 891–92 (9th Cir. 1994) (holding that “there are
no circumstances in which law enforcement officers may suggest that a suspect’s exercise of the right to remain silent
may result in harsher treatment by a court or prosecutor”). Additionally, given that the district court credited the agents’
testimony over Delaney’s, the “losing points” comments do not support a finding of false, illusory promises or coercion.



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No. 09-1820
United States v. Delaney

Without more, these statements were permissible promises of possible leniency. See, e.g., Wiley,

132 F. App’x at 640 (holding that promises to inform prosecutor of defendant’s cooperation and

suggestions of leniency were not coercive); Wrice, 954 F.2d at 411 (holding that comments that the

Sentencing Guidelines allowed for downward departure motions if the defendant cooperated were

not coercive). In the absence of objectively coercive police activity, this Court does not have to

consider the remaining two prongs of the Mahan standard. See Connelly, 479 U.S. at 167.

Accordingly, as the challenged statements were not coercive, we find that Delaney’s statements

were not the result of illegitimate police coercion, and thus were voluntary.

                                  b. Fifth Amendment Right to Counsel

         Delaney argues that the agents refused his repeated requests for counsel during custodial

interrogation, which violated his Fifth Amendment right to counsel.2 The district court found that

Delaney’s testimony that he requested counsel seven times was not credible, and credited the agents’

testimony. The trial court credited one of Delaney’s comments—“I think I should talk to a lawyer,

what do you think?”—and found that it was not an unambiguous request for counsel.

         In Edwards v. Arizona, 451 U.S. 477 (1981), the Supreme Court held the police must

immediately stop questioning a suspect if he invokes his right to counsel. Id. at 482. The invocation

must be “unambiguous;” it cannot be “ambiguous or equivocal.” Davis v. United States, 512 U.S.

452, 459 (1994). In other words, the suspect “must articulate his desire to have counsel present

sufficiently clearly that a reasonable police officer in the circumstances would understand the


         2
           Delaney argues that this issue arises under the Sixth Amendment. He is incorrect. The right to counsel during
custodial interrogation is a Fifth Amendment right, and we proceed on that basis. See Edwards v. Arizona, 451 U.S. 477,
480 n.7 (1981) (noting that “the Sixth Amendment right to counsel arises whenever an accused has been indicted or
adversary criminal proceedings have otherwise begun”).

                                                          12
No. 09-1820
United States v. Delaney

statement to be a request for an attorney.” Id.

       In Davis, the Supreme Court found that the defendant’s statement, “Maybe I should talk to

a lawyer,” was not an unambiguous request for counsel. Id. at 462. Relying on Davis, this Court

has held that “[i]t would be nice to have an attorney” is not an unambiguous request. Ledbetter v.

Edwards, 35 F.3d 1062, 1070 (6th Cir. 1994); see also Burket v. Angelone, 208 F.3d 172, 198 (4th

Cir. 2000) (holding that “I think I need a lawyer” was not an unequivocal request); Clark v. Murphy,

331 F.3d 1061, 1069–72 (9th Cir. 2003) (holding that “I think I would like to talk to a lawyer” was

not an unequivocal request); Cf. Abela v. Martin, 380 F.3d 915, 925–27 (6th Cir. 2004) (holding that

statement “maybe I should talk to an attorney by the name of William Evans” and showing business

card to officer was an unambiguous invocation of counsel). Here, Delaney stated “I think I should

talk to a lawyer, what do you think?” Agent Clark responded that the decision was up to him, and

that he had to let the agents know if he wanted a lawyer. Delaney did not make any additional

comments about a lawyer at this time, and the agents continued processing Delaney.

       In comparison to Davis and its progeny, both of Delaney’s statements are ambiguous

requests for counsel. Neither clearly indicates that Delaney would only deal with the police with

counsel present. Both contain the ambiguous phase, “I think,” as opposed to more declarative

statements. Accordingly, we find that Delaney’s requests are not unambiguous, and thus were not

obtained in violation of his Fifth Amendment right to counsel.

                  B. ADMISSION OF INTERNET CHAT TRANSCRIPTS

       Delaney argues that the district court erred when it admitted several Internet chat

transcripts at trial pursuant to Rule 404(b).


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No. 09-1820
United States v. Delaney

                                      1. Standard of Review

       A district court determines the admissibility of evidence under Rule 404(b) pursuant to a

three-step process:

       First, the district court must decide whether there is sufficient evidence that the other
       act in question actually occurred. Second, if so, the district court must decide whether
       the evidence of the other act is probative of a material issue other than character.
       Third, if the evidence is probative of a material issue other than character, the district
       court must decide whether the probative value of the evidence is substantially
       outweighed by its potential prejudicial effect.

United States v. Jenkins, 345 F.3d 928, 937 (6th Cir. 2003) (citing United States v. Haywood, 280

F.3d 715, 719–20 (6th Cir. 2002)).

       We typically review a district court’s evidentiary rulings for an abuse of discretion. United

States v. Ganier, 468 F.3d 920, 925 (6th Cir. 2006). However, we review the district court’s

admission of Rule 404(b) prior acts evidence under the three step analysis we announced in United

States v. Gessa, 971 F.2d 1257, 1261–62 (6th Cir. 1992) (en banc). First, we review for clear error

the district court’s factual determination that the other acts occurred. Second, “we review de novo

whether the district court made ‘the correct legal determination’ that the evidence was admissible

for a legitimate [404(b)] purpose.” United States v. Johnson, 27 F.3d 1186, 1190 (6th Cir. 1994),

cert. denied, 513 U.S. 1115 (1995) (quoting Gessa, 971 F.2d at 1262). Third, we review for abuse

of discretion the determination that the probative value of the evidence is not substantially

outweighed by unfair prejudicial impact. United States v. Hardy, 228 F.3d 745, 750 (6th Cir. 2000).

                                       2. Law and Analysis

       Federal Rule of Evidence 404(b) allows the government to introduce evidence of “other

crimes, wrongs, or acts” committed by the defendant so long as the evidence is not used merely

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No. 09-1820
United States v. Delaney

to show propensity and if it “bears upon a relevant issue in the case.” United States v. Hardy,

228 F.3d 745, 750 (6th Cir. 2000). The Rule contains a non-exhaustive list of possible purposes:

“motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or

accident. . .” Fed. R. Evid. 404(b). Such evidence “is not admissible to prove the character of a

person in order to show action in conformity therewith.” Id.

                       a. Sufficient Evidence That Other Acts Occurred

        First, we must determine whether there is “sufficient evidence to support a finding by the

jury that the defendant committed” the other act. Huddleston v. United States, 485 U.S. 681, 685

(1988). The fact that the chats occurred is undisputed, so step one is not at issue in this appeal.

                                     b. Proper 404(b) Purpose

        Second, we must determine whether the chat transcripts were offered for a proper 404(b)

purpose. The transcripts consisted of instant message conversations with three undercover police

officers: Detective Linda Findlay, Detective Richard Weise, and Special Agent Jenny Emmons.

The government argues that the evidence demonstrated Delaney’s identity, knowledge, intent, and

absence of mistake or accident. Considering identity first, Rule 404(b) allows the introduction of

other acts evidence to show identity, “provided they are ‘of sufficient distinctive similarity’ with the

charges in the indictment to ‘create a pattern or modus operandi.’” United States v. Allen, 619 F.3d

518, 524 (6th Cir. 2010) (quoting United States v. Perry, 438 F.3d 642, 648 (6th Cir. 2006)). While

the district court did not rely on these grounds to admit the evidence, we may affirm the admission

of evidence on an alternative theory if that theory would justify the admission. See City Mgmt.

Corp. v. United States Chem. Co., 43 F.3d 244, 251 (6th Cir. 1994) (finding that this Court may


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No. 09-1820
United States v. Delaney

affirm on any grounds supported by the record, even though they may be different than those relied

upon by the district court). At trial, the government alleged that Delaney met Amanda, the victim

in this case, on the Internet and communicated regularly with her using instant messaging from the

screen name “Z Camaro Guy.” Delaney’s interactions with the three undercover police officers

were the same: He met them on the Internet, communicated with them on instant messaging using

the screen name “Z Camaro Guy,” and sent them pictures of himself. These interactions indicate

a pattern of behavior that is consistent with the charged offense. Accordingly, the evidence was

admissible for purposes of identity. See Perry, 438 F.3d at 648 (affirming admission of other acts

evidence that established a distinctive “signature”).

       Next, the government argues that the evidence was demonstrative of Delaney’s knowledge

and intent. This step is governed by United States v. Johnson, 27 F.3d 1186, 1192 (6th Cir. 1994),

cert. denied, 513 U.S. 1115 (1995), in which this Court held that “where there is thrust upon the

government, either by virtue of the defense raised by the defendant or by virtue of the elements of

the crime charged, the affirmative duty to prove that the underlying prohibited act was done with

a specific criminal intent, other acts evidence may be introduced under Rule 404(b).” In this case,

the government was required to show that Delaney intended to knowingly produce, possess, and

distribute images of child pornography. 18 U.S.C. § 2251(a), 2252A(a)(2), and 2252A(a)(5)(b).

       In the chat transcripts, Delaney discussed his sexual interest in young girls, prior possession

of child pornography, using his camera to take child pornographic photos, and his knowledge of a

file sharing program through which images of child pornography were available for download. In

addition, he transmitted images of young girls in bathing suits. All of these statements and acts are


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United States v. Delaney

indicative of Delaney’s intent and knowledge to possess and distribute child pornography. They

explain both his interest in the subject, and his past activities to procure it. Accordingly, this

evidence was admissible for purposes of intent and knowledge because the acts involved a pattern

of particular behaviors that were specifically related to the charged offense. See United States v.

Bell, 516 F.3d 432, 443 (6th Cir. 2008) (holding that Rule 404(b) evidence is probative of intent

only “when the prior [acts] were part of the same scheme or involved a similar modus operandi as

the present offense”); United States v. Hall, 202 F.3d 270 (table), 2000 WL 32010, at *3 (6th Cir.

2000) (holding that evidence of prior conviction, nude images of children, and sexually explicit

emails were admissible to show defendant’s intent and knowledge to receive child pornography).

       Finally, the government argues that the evidence is probative of absence of accident or

mistake. In order for evidence of other acts evidence to be admissible for this purpose, the

defendant must assert a defense based on some form of mistake or accident. See United States v.

Newsom, 452 F.3d 593, 606 (6th Cir. 2006) (finding absence of mistake not to be a permissible

purpose in a felon in possession case, when the defendant’s only defense was that the gun was not

his and that he did not know that it was under his seat); United States v. Ward, 190 F.3d 483, 489

(6th Cir. 1999) (finding absence of mistake not to be a permissible purpose for the admission of

evidence when the defendant’s “defense was not that she mistakenly thought she was selling

powdered sugar instead of cocaine”). Here, Delaney testified that he believed Amanda was 18, not

14. This Court has found that mistake of age is not a defense to alleged violations of 18 U.S.C. §

2251(a), United States v. Humphrey, 608 F.3d 955, 962 (6th Cir. 2010), but that it is a defense to

alleged violations of 18 U.S.C. § 2251A, United States v. Stout, 509 F.3d 796, 799 (6th Cir. 2007).


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United States v. Delaney

Accordingly, this evidence was admissible for purposes of absence of accident or mistake.

       As this evidence was admissible for several permissible purposes, we find that the district

court did not err in admitting that the chat transcripts for a proper 404(b) purpose.

                               c. Prejudicial/Probative Balancing

       Third, we must determine whether any unfair prejudicial impact of the evidence substantially

outweighs its probative value. The question before us is not whether the instances described in the

chat transcripts are “gruesome or disturbing,” United States v. Boyd, 640 F.3d 657, 667–68 (6th Cir.

2011), but whether their prejudicial impact is unfair, see United States v. Sanders, 95 F.3d 449, 453

(6th Cir. 1996) (noting that the evidence must do more than “paint[] the defendant in a bad light”

to be unfairly prejudicial). As the risk of prejudice is unavoidably high in prosecutions for child

pornography, caution is required.

       The evidence was probative of Delaney’s methodology in sending and receiving exploitative

photographs, and as to whether he had knowledge that the pornographic images he possessed were

of children. Additionally, in making this balancing determination, we must consider whether there

are alternate sources of proving the same facts. See Haywood, 270 F.3d at 723, United States v.

Merriweather, 78 F.3d 1070, 1078–79 (6th Cir. 1996) (“One factor in balancing unfair prejudice

against probative value under Rule 403 is the availability of other means of proof.”). At trial, the

government needed to prove Delaney’s specific intent and rebut his defense of mistake. Because

Delaney testified that he thought Amanda was 18, the government used the chats to counter this

defense and show Delaney’s sexual interest in children. Due to the limited evidence of Delaney’s

mental state, the transcripts were the least offensive way of shedding light on his state of mind.


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United States v. Delaney

         Turning to the whether the prejudicial impact was unfair, the chat transcripts at issue

describe Delaney’s sexual interests, but they contain few graphic details. Because the conversations

are less lurid than the conduct involving Amanda, the risk that the jury gave them undue attention

is lessened. Balancing is highly discretionary, and thus the district court “is afforded great

deference.” Bell, 516 F.3d at 445. Here, while the transcripts described offensive conduct, the

prejudice they may have provoked was not unfair. “‘Unfair prejudice’ . . . does not mean the

damage to the defendant’s case that results from the legitimate probative force of the evidence;

rather, it refers to evidence which tends to suggest decision on an improper basis.” United States

v. Mendez–Ortiz, 810 F.2d 76, 79 (6th Cir.1986). In light of the evidence of the sexual encounter

with Amanda, the chat transcripts did not create the risk of unfair prejudice because of their narrow

focus and less explicit nature. Thus, the district court did not abuse its discretion in finding that the

prejudicial impact of this evidence did not substantially outweigh its probative value. We find that

the evidence was properly admitted.3

                                 C. SUFFICIENCY OF THE EVIDENCE

         Delaney argues that there was insufficient evidence to sustain a conviction for Count I,

sexual exploitation of children in violation of 18 U.S.C. § 2251(a).

                                             1. Standard of Review

         Delaney moved for judgment of acquittal on Count I pursuant to Rule 29 of the Federal

Rules of Criminal Procedure at the close of the government’s evidence. The district court denied



          3
            The government argues on appeal that the evidence was also properly admissible as res gestae evidence. As
we that find that the district court did not abuse its discretion in admitting the evidence pursuant to Rule 404(b), we do
not address this argument here.

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No. 09-1820
United States v. Delaney

the motion. Delaney failed to renew this motion at the close of his case, or within seven days of the

verdict. Accordingly, “appellate review is limited to determining whether there was a ‘manifest

miscarriage of justice.’” United States v. Price, 134 F.3d 340, 350 (6th Cir. 1998) (quoting United

States v. Glover, 21 F.3d 133, 138 (6th Cir. 1994), cert. denied, 513 U.S. 948 (1994)).

                                       2. Law and Analysis

       A “miscarriage of justice” exists only if the record is “devoid of evidence pointing to guilt.”

Price, 134 F.3d at 350 (internal quotations omitted). That standard is not met in this case because

direct and circumstantial evidence supports Delaney’s conviction. In relevant part, 18 U.S.C. §

2251(a) provides:

       Any person who employs, uses, persuades, induces, entices, or coerces any minor to
       engage in . . . any sexually explicit conduct for the purpose of producing any visual
       depiction of such conduct . . . shall be punished as provided under subsection (e), if
       such person knows or has reason to know that such visual depiction will be
       transported or transmitted using any means or facility of interstate or foreign
       commerce or in or affecting interstate or foreign commerce or mailed, if that visual
       depiction was produced or transmitted using materials that have been mailed,
       shipped, or transported in or affecting interstate or foreign commerce by any means,
       including by computer, or if such visual depiction has actually been transported or
       transmitted using any means or facility of interstate or foreign commerce or in or
       affecting interstate or foreign commerce or mailed.

       Delaney argues that the evidence does not prove beyond a reasonable doubt that he

“employed, used, persuaded, or coerced” Amanda. The evidence at trial supports the jury’s verdict.

Amanda testified that she met Delaney in an internet chat room when she was in 7th grade. In

August of 2004, he drove to Grand Rapids, Michigan in order to have sex with her. At the time, she

was 14 years old. Amanda testified about the details of their sexual encounter, including how she

and Delaney wrote on each other with red latex paints, and took naked pictures of each other and


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United States v. Delaney

their genitals. In sum, the record is not devoid of evidence of that Delaney “used” Amanda to

produce visual depictions of sexually explicit conduct. Accordingly, we find that there was not a

manifest miscarriage of justice in this case.

                                        III. CONCLUSION

       For the foregoing reasons, we AFFIRM the Appellant’s convictions. Kethledge, J.,

concurs in all but Part II.B.1 of this opinion.




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