                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 17a0527n.06
                                                                                       FILED
                                           No. 16-3788                           Sep 13, 2017
                                                                             DEBORAH S. HUNT, Clerk

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                                )
                                                         )
       Plaintiff-Appellee,                               )
                                                         )
                                                                ON APPEAL FROM THE
v.                                                       )
                                                                UNITED STATES DISTRICT
                                                         )
                                                                COURT     FOR      THE
DAVID A. GUY,                                            )
                                                                SOUTHERN DISTRICT OF
                                                         )
                                                                OHIO
       Defendant-Appellant.                              )
                                                         )
                                                         )



BEFORE:        KEITH, BATCHELDER, and GRIFFIN, Circuit Judges.

       ALICE M. BATCHELDER, Circuit Judge. After David Guy’s niece accused him of

sexually molesting her when she was between six and ten years old, law enforcement began an

investigation. Police executed a search warrant at his home and discovered thousands of images

of child pornography, as well as obscene images that he had created. A grand jury indicted him

for attempted production of child pornography, possession and receipt of child pornography, and

obscene visual representation of the sexual abuse of children. Guy went to trial, where a jury

convicted him of the indicted offenses despite his defense that the images were art. The district

court sentenced him to 1,020 months’ imprisonment. In this direct appeal, he raises issues

concerning the sufficiency of the evidence against him, the fairness of his trial, the admission of

certain evidence, the jury instructions, and juror bias. Finding no merit to any of his claims, we

AFFIRM his conviction and sentence.
No. 16-3788
United States v. Guy

                                                        I

        In September 2014, authorities in Clermont County, Ohio, began an investigation of

David Guy based on information reported to them by his then-seventeen-year-old niece. The

niece, known in this case as “Minor 1,” alleged that Guy had sexually molested her when she

was between six and ten years old, and Guy was eventually convicted of gross sexual imposition

by an Ohio jury. As part of the investigation, Investigator Lori Saylor initiated a controlled

phone call between Guy and his sister, Minor 1’s mother. During the call, Guy stated that he had

taken nude photographs of Minor 1. Authorities executed a search warrant at his home and

seized his computers and a detached hard drive. Police also seized CDs, DVDs, drawings, and

sketch pads. The CDs contained over 25,000 sexually explicit images of children, and the

drawings included sexually explicit depictions of children.                  A forensic search of Guy’s

computers indicated that they contained an enormous number of pornographic images of

children.1

        Among the thousands of images of child pornography recovered from Guy’s computers,

hard drive, and discs, some images warrant additional discussion in light of the issues raised in

this appeal. First, the discs included images of a pedophile’s mascot known as “Pedo Bear.”

These images bore captions that encouraged the viewer’s sexual interest in children.                        For

example, one such caption stated, “Carpe Diem. You’re in her bedroom. Her mom is gone for

the day. She won’t tell.”

        Second, some of the images found on the discs depicted Guy’s minor female relatives.

These images included innocuous family pictures that he took at family functions. But some of

these innocuous images were used in more nefarious ways. He digitally manipulated various


        1
          A forensic investigator testified at trial that he stopped indexing potential child pornography when he
reached 1,000 images. He estimated that there could have been thousands more.

                                                      -2-
No. 16-3788
United States v. Guy

images by, for example, imposing a minor’s face onto another pornographic photograph. Some

of these manipulated images included his face, and some also had sexually explicit captions,

which he authored. These captions—which sometimes referred to either the child or Guy by

name—encouraged sexual activity with and interest in children. Eleven different minor females

appeared throughout this category of digitally manipulated images.

         Third, investigators discovered an image of Minor 1 when she was approximately eight

years old. The image showed her on Guy’s bed wearing a black and red lace nighty and striped

socks but no underwear. She had been posed on her hands and knees and photographed from

behind. Although the image did not display her genitals, the costume was hiked up to expose her

bare buttocks. The image bore a caption written in the first person, as if Minor 1 were the

speaker: “My well-f***ed cu[**] is dripping with Uncle’s hot cum. He f***s me every day.”2

         The grand jury indicted Guy on eleven counts of the obscene visual representation of the

sexual abuse of children, in violation of 18 U.S.C. § 1466A(a)(1), (d)(4) (Counts 1–11); one

count of production and attempted production of child pornography, in violation of 18 U.S.C.

§ 2251(a), (e) (Count 12); three counts of receipt of child pornography, in violation of 18 U.S.C.

§ 2252(a)(2), (b)(1) (Counts 13–15); and one count of possession of child pornography, in

violation of 18 U.S.C. § 2252(a)(4), (b)(2) (Count 16). The obscenity charges arose from the

digitally manipulated photos. The attempted-production charge arose from the image of Minor

1. The receipt-and-possession charges arose from the other images of child pornography that

Guy obtained from the internet.




         2
             Investigator Saylor testified that members of Guy’s family would refer to him as “Uncle” or “Uncle
Dave.”

                                                       -3-
No. 16-3788
United States v. Guy

                                                 A

          The district court made several pre-trial evidentiary rulings that Guy challenges on

appeal.

          Guy’s defense to the obscenity and attempted-production-of-child-pornography charges

included a First Amendment argument that the images were “subversive” art. To that end, he

sought to introduce evidence that would help define the “contemporary community standards,”

which is an element of the legal test for whether material is obscene, as defined by Miller v.

California, 413 U.S. 15, 24 (1973). The evidence—an exhibit at the Cincinnati Contemporary

Arts Center—featured local artists’ responses to a Cincinnati curator’s past obscenity charge for

displaying images created by the artist Robert Mapplethorpe. The exhibit contained images

depicting nudity, including two images of nude children. Guy moved to allow a jury view of the

exhibit, but the district court denied the motion. After the government rested its case, Guy

sought to introduce two images from a book purchased at the gift shop of the Contemporary Arts

Center. The district court did not admit this evidence, either.

          Guy also filed a motion in limine to exclude various images that celebrated pedophilia,

including the Pedo Bear memes, which were found on the discs in his home. He argued that he

became aware of this evidence for the first time shortly before he filed the motion and that it was

improper “other acts” evidence precluded under Federal Rule of Evidence 404(b), which

prohibits the use of such evidence to prove a person’s character. The government had not filed a

Rule 404(b) notice concerning this evidence. Nevertheless, it argued that there was no notice

defect because it had told Guy which of Guy’s discs it might use at trial, and those discs

contained the evidence he sought to exclude. The government also stated that it had “specifically

pointed out these materials” to the defense more than two weeks before trial. Finally, the



                                                -4-
No. 16-3788
United States v. Guy

government argued that the evidence was not the sort of “bad acts” evidence precluded by Rule

404(b), but rather “an admission or an adoption of a particular lifestyle.” The district court

excluded certain items, but denied the motion in limine as to the pedophilia-related materials,

finding that they “go to motive, opportunity, intent, plan, knowledge, a lot of the things listed in

[Rule] 404(b).” Guy renewed his objection following this ruling, arguing that the government

failed to provide notice under Rule 404(b). The district court overruled the objection, holding

that the government had provided the evidence in advance of trial.

          Pursuant to Federal Rule of Evidence 414, the government provided notice of its intent to

introduce evidence of Guy’s prior state conviction for gross sexual imposition, which Guy

opposed. Before trial, the district court indicated that its “strong inclination . . . [was] to exclude

that evidence.” The district court noted, however, that, “if during the cross-examination of

Minor Number 1 it becomes relevant, the Court may very well change its ruling.” Guy’s counsel

stated that it understood “that if we open the door, that would happen.” Before Minor 1 testified,

the district court reminded defense counsel of that ruling, at which point Guy’s counsel did not

object.

                                                  B

          During voir dire, four prospective jurors made statements indicating that they might not

be fair and unbiased. Juror 11 indicated that Guy’s decision not to testify might imply that he

had “something to hide.” Juror 29 stated at a sidebar conference that his or her religion taught

that pornography is a sin, but that he or she could follow the district court’s instructions

concerning evidence. Juror 49 indicated agreement with statements that images of nude children

could never be considered art and that the juror could not be objective. Finally, Jurors 29 and 83

agreed with a statement that they would not be able to set aside their personal beliefs and



                                                 -5-
No. 16-3788
United States v. Guy

opinions to consider the contemporary community standards.           Guy challenged these four

prospective jurors for cause, but the district court denied the challenges. He therefore used

peremptory challenges against Jurors 11 and 29. Jurors 49 and 83 did not sit on the jury.

                                                C

        The government’s evidence at trial included the various categories of images described

above. Minor 1, the niece who was the subject of the image underlying the attempted production

of child pornography count, also testified. Although that image did not depict her genitals,

Minor 1 testified that Guy had photographed her on other occasions when she was between the

ages of six and ten. She stated that, in these other photographs, she would occasionally wear

costumes that he had given her and that he took some photos where she wore no clothing at all.

She also testified that Guy had taken pictures of her genitals when her legs were spread open,

and that he had told her not to tell anyone that he had taken these pictures. Defense counsel

cross-examined Minor 1 about the preparation she received from the government before trial,

including her viewing of the photographs used at trial.

        After the government rested its case, Guy moved for a directed verdict, which he renewed

upon concluding his own case.       He argued that the government’s evidence had created a

prejudicial variance from the indictment, because the charge rested on the image of Minor 1 but

the evidence included both the image and her testimony.         After comparing the indictment

language (“that between January 1, 2004 and December 31, 2006, the defendant attempted to

produce child pornography”) and Minor 1’s testimony that Guy had taken nude pictures of her

between the ages of six and ten, the district court found that there was no variance and denied the

motion.




                                                -6-
No. 16-3788
United States v. Guy

                                                  D

        Guy objected to the jury instructions for Count 12, the attempted production of child

pornography. After the government proposed that the district court use Sixth Circuit Pattern Jury

Instruction § 16.01 for this Count, Guy sought to remove the definition of the term “lascivious”

from the pattern instruction’s definitions section. The pattern instruction for production of child

pornography provides that an element of that offense is that “the defendant used a minor to

engage in sexually explicit conduct for the purpose of producing a visual depiction of that

conduct.” Sixth Circuit Pattern Jury Instructions § 16.01, Sexual Exploitation of Children:

Using a Minor to Engage in Sexually Explicit Conduct to Produce a Visual Depiction. The

pattern instructions further provide various definitions and instructions, including a definition of

“sexually explicit conduct” that includes the “lascivious exhibition of the genitals or pubic area

of a person.” To determine if an image contains a lascivious exhibition, the instruction tells that

jury that it

        may consider these six factors: (1) whether the focal point of the visual depiction
        is on the child’s genitalia or pubic area; (2) whether the setting of the visual
        depiction is sexually suggestive, i.e., in a place or pose generally associated with
        sexual activity; (3) whether the child is depicted in an unnatural pose, or in
        inappropriate attire, considering the age of the child; (4) whether the child is fully
        or partially clothed, or nude; (5) whether the visual depiction suggests sexual
        coyness or a willingness to engage in sexual activity; and (6) whether the visual
        depiction is intended or designed to elicit a sexual response in the viewer. This
        list is not exhaustive, and an image need not satisfy any single factor to be
        deemed lascivious. Instead, you must determine whether the visual depiction is
        lascivious based on its overall content. It is for you to decide the weight or lack
        of weight to be given any of these factors.

Id. Guy objected to the use of these six factors—known as the Dost factors after United States v.

Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986)—on the ground that lasciviousness should only be

at issue when the image displays genitals or the pubic area. The district court rejected this

analysis and instructed the jury in accordance with the pattern instruction.

                                                 -7-
No. 16-3788
United States v. Guy

        The jury convicted Guy on all sixteen counts, and the district court sentenced him to

1,020 months’ imprisonment followed by twenty years’ supervised release. Following the entry

of judgment by the district court, Guy timely appealed.

                                                 II

                                                 A

        We begin with Guy’s challenge to the sufficiency of the evidence used to convict him of

the attempted production of child pornography.         We review de novo a challenge to the

sufficiency of evidence used to convict a defendant, viewing “the evidence in the light most

favorable to the prosecution” and affirming if “any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” United States v. Lowe, 795 F.3d

519, 522 (6th Cir. 2015) (quoting United States v. Washington, 715 F.3d 975, 979 (6th Cir. 2013)

(citation omitted)); see also Jackson v. Virginia, 443 U.S. 307, 318–19 (1979). “A convicted

defendant bears a very heavy burden to show that the government’s evidence was insufficient.”

United States v. Tragas, 727 F.3d 610, 617 (6th Cir. 2013) (internal quotation marks and citation

omitted).

        Federal law prohibits the use of “any minor to engage in . . . any sexually explicit conduct

for the purpose of producing any visual depiction of such conduct.” 18 U.S.C. § 2251(a).

Section 2256(2)(A)(v) defines “sexually explicit conduct” as including the “lascivious exhibition

of the genitals or pubic area of any person.” The grand jury indicted Guy for the attempted

production of child pornography in violation of § 2251(a). To obtain a conviction on the attempt

charge, the government must prove that he intended to create child pornography and that he took

a substantial step toward doing so. United States v. Sims, 708 F.3d 832, 835 (6th Cir. 2013).




                                                -8-
No. 16-3788
United States v. Guy

        The image underlying the attempted production of child pornography count was the

image of Minor 1, in which she was posed on Guy’s bed. The image did not display her genitals,

but it did show her exposed buttocks. In addition to her being partially nude, the image bore a

caption that both referred to her genitals and discussed sexual activity in vile terms. Guy argues

that because the image did not display Minor 1’s genitals, it was not an image of sexually

explicit conduct, and therefore he could not have intended to create child pornography. The

government responds that the image alone was sufficient evidence for the jury to infer that he

intended to produce a lascivious exhibition of genitals or the pubic area. Even if we have our

doubts about the government’s position, we need not resolve them here, because the image did

not appear in evidence in isolation. Having reviewed the record as a whole, we find that two

facts, taken together with the image of Minor 1, allow us to conclude that a rational juror could

find Guy guilty of attempting to produce child pornography. See Jackson, 443 U.S. at 319; see

also United States v. Vanderwal, 533 F. App’x 498, 501 (6th Cir. 2013). First, Minor 1 testified

that Guy had, on other occasions, taken nude photographs of her that depicted her genitals.

Second, the image did not solely depict Minor 1.           It also bore an obscene caption that

demonstrated Guy’s prurient intent behind creating the image. Notably, this caption specifically

referred to the child’s genitals, even though the picture did not display them.

        Guy argues that because he crafted the image to avoid displaying Minor 1’s genitals or

pubic area, the image could not be used to demonstrate that he intended to depict sexually

explicit conduct. We have previously rejected this sort of “circular logic.” Vanderwal, 533 F.

App’x at 502. In Vanderwal, the defendant took a video in his bathroom of young girls related to

him. Although the video, which showed genitals, was not itself lascivious, it was sufficient,

taken in context with other evidence, to demonstrate that he intended to create a lascivious video.



                                                -9-
No. 16-3788
United States v. Guy

Id.   The government proved Vanderwal’s intent by pointing to his collection of child

pornography, a fantasy story he had written about a sexual relationship between a grandfather

and a granddaughter, and the way he set up the camera in the bathroom to capture the naked

children. Id. In short, the fact that an image underlying a charge of attempted violation of

18 U.S.C. § 2251 is not lascivious does not mean that a defendant did not intend to create a

lascivious image.

         The contextual evidence here was sufficient to support the attempt conviction. Among

other things, this evidence included the caption on the photo and Minor 1’s testimony that Guy

had taken photos of her genitals at other times. As Vanderwal teaches, it is “circular logic” to

suggest that Guy could not have intended to create a lascivious image simply because the image

itself does not contain genitals or the pubic area. Id. From the evidence presented, the jury

could conclude that he had the intent to commit the attempted-production offense.

         Having established that Guy possessed the specific intent necessary to convict him of

attempted production of child pornography, we also readily conclude that he took a substantial

step toward doing so. The photograph of Minor 1 was not a candid picture taken by a doting

uncle.    Instead, Guy dressed and posed Minor 1 and added the caption to the image.

Accordingly, we hold that the evidence was sufficient to convict Guy of this offense.

                                                B

         Guy also argues that the government’s proof for the attempted-production charge caused

a prejudicial variance with the indictment. We review de novo whether a variance occurred and

reverse if the variance affected a defendant’s substantial rights. United States v. Caver, 470 F.3d

220, 235 (6th Cir. 2006). “A variance ‘occurs when the charging terms [of the indictment] are

unchanged, but the evidence at trial proves facts materially different from those alleged in the



                                               -10-
No. 16-3788
United States v. Guy

indictment.’” United States v. Kuehne, 547 F.3d 667, 683 (6th Cir. 2008) (quoting United States

v. Prince, 214 F.3d 740, 757 (6th Cir. 2000)). The indictment alleged that Guy “attempted to . . .

use . . . a minor, to wit Minor 1, to engage in any sexually explicit conduct for the purpose of

producing any visual depiction of such conduct.” The proof included both the image of Minor 1

and the aforementioned contextual evidence from which a jury could (and did) infer that he

intended to create child pornography. There was no variance. See id. at 686 (“The presentation

of additional evidence to substantiate charged offenses, however, does not constitute facts

materially different from those charged in the indictment.”).

                                                III

        Guy challenges his conviction on eleven counts of the obscene visual representation of

the sexual abuse of children by arguing that the district court’s refusal to permit the jury view of

the Mapplethorpe exhibit and the admission of the art-exhibit book, and the court’s rulings with

regard to the cross-examination of Minor 1 prevented him from having a fair trial. The parties

dispute the applicable standard of review. Claiming that the evidentiary rulings violated his

constitutional right to present a full defense, Guy asks that we review the evidentiary issues de

novo. The government, on the other hand, requests that we review these issues for abuse of

discretion. Our case law provides support for both of these conflicting standards. Compare

United States v. Reichert, 747 F.3d 445, 453 (6th Cir. 2014) (“Where a defendant attacks an

evidentiary ruling as violating the Sixth Amendment, review of the legal aspects of the

constitutional violation is de novo.”) (citation omitted) with United States v. Schreane, 331 F.3d

548, 564 (6th Cir. 2003) (“An appellate court reviews all evidentiary rulings—including

constitutional challenges to evidentiary rulings—under the abuse-of-discretion standard.”)

(citation omitted). As we have noted, however, “the abuse of discretion standard is not at odds



                                               -11-
No. 16-3788
United States v. Guy

with de novo interpretation of the Constitution inasmuch as [a] district court does not have the

discretion to rest its evidentiary decisions on incorrect interpretations of the Constitution.”

United States v. Blackwell, 459 F.3d 739, 752 (6th Cir. 2006). Here, Guy raised his claims

concerning the art exhibit in constitutional terms, so we review that aspect of his appeal under

the de novo standard of review.

        However, failure to preserve an evidentiary issue, even an evidentiary issue that affects a

constitutional right, results in a plain-error standard of review. See United States v. Collins, 799

F.3d 554, 584–85 (6th Cir. 2015). Guy failed to object to the district court’s ruling on the cross-

examination of Minor 1, so we review that aspect of his appeal for plain error.

        A defendant has a constitutional right to “a meaningful opportunity to present a complete

defense.” Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (quoting Crane v. Kentucky, 476

U.S. 683, 690 (1986)). But this does not provide “an unfettered right to offer evidence that is

incompetent, privileged, or otherwise inadmissible under standard rules of evidence.” Blackwell,

459 F.3d at 753 (quoting Montana v. Egelhoff, 518 U.S. 37, 42 (1996)). Exclusion of evidence

may violate the right to a fair trial if the exclusion is arbitrary or disproportionate. Holmes,

547 U.S. at 324–26. And even if the district court’s exclusion of the evidence was erroneous,

this court examines “whether the omitted evidence evaluated in the context of the entire record

creates a reasonable doubt that did not otherwise exist.” Blackwell, 459 F.3d at 753 (internal

quotation marks, citation, and alteration omitted).

                                                 A

        Guy defends against the charges for the obscene visual representation of the sexual abuse

of children by claiming that the images he created were works of art and not obscene at all. To

that end, he sought to demonstrate that his images fell within the contemporary community



                                               -12-
No. 16-3788
United States v. Guy

standards3 by requesting a jury view of an exhibit, which contained nudity, at the Cincinnati

Contemporary Arts Center. Jury views help the jury understand the litigation and are used when

“the requisite information cannot be introduced any other way.” See United States v. Simmons,

174 F. App’x 913, 918 (6th Cir. 2008). The district court did not permit the jury view and later

declined Guy’s request to introduce the exhibit’s companion book into evidence. The exclusion

of this evidence was neither arbitrary nor disproportionate. The exhibit bore little relevance to

the crimes for which Guy was on trial. Out of 120 images in the exhibit, only two images

showed children. On this point alone, the exhibit’s relevance was far from clear. Even if Guy

had offered only the two nude depictions of children as evidence, the evidence would not be

probative of the question of whether his altered images depicting sexual fantasies with his minor

female relatives were obscene.             Nor did the exclusion of the evidence preclude him from

introducing other evidence about contemporary community standards, should he have chosen to

do so. The district court did not err by denying a jury view on the ground that it was not

relevant.

         Guy also protests the district court’s exclusion of a book of the art exhibit, which Guy’s

counsel purchased from the museum gift shop. The district court explained that allowing the

introduction of two images portraying children in the book would confuse the jury by focusing

on pictures that did not necessarily reflect the community standards. This was a decision well

within the district court’s discretion under Federal Rule of Evidence 403, which permits a court

to exclude evidence if the “probative value is substantially outweighed by a danger of confusing


         3
             “To determine whether something is obscene, the Miller–Ginsberg test [that we apply] asks: ‘(a) whether
the average person, applying contemporary community standards would find that the work, taken as a whole,
appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual
conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious
literary, artistic, political, or scientific value.’” Am. Booksellers Found. for Free Expression v. Strickland, 601 F.3d
622, 624 (6th Cir. 2010) (quoting Reno v. Am. Civil Liberties Union, 521 U.S. 844, 872 (1997)).

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No. 16-3788
United States v. Guy

the issues [or] misleading the jury.” The defendant does not have an unfettered right to admit all

evidence, Blackwell, 459 F.3d at 753, and the district court did not err by refusing to admit the

book of the exhibit into evidence.

                                                B

        Guy also argues that the district court violated his right to cross-examine the witnesses

against him. He claims that the district court “threatened” him when it said that if he impeached

Minor 1’s credibility during cross-examination, then his prior conviction for gross sexual

imposition, which the district court had held inadmissible, might become relevant. Defense

counsel did cross-examine Minor 1, and during the course of the cross-examination, was able to

challenge her credibility in several ways. For instance, his questions demonstrated that Minor 1

had received preparation for her testimony from the government.

        The Constitution’s Confrontation Clause “guarantees an opportunity for effective cross-

examination,” which Guy received. Delaware v. Fensterer, 474 U.S. 15, 20 (1985). It does not

guarantee “cross-examination that is effective in whatever way, and to whatever extent, the

defense might wish.” Id. Guy exercised the opportunity guaranteed by the Constitution and did

so effectively. In any event, the district court’s reminder to Guy’s counsel was not a threat.

“When one party has opened the door on an issue, by eliciting prejudicial or inadmissible

testimony, an opponent, in the court’s discretion, may introduce evidence on the same issue to

rebut any false impression that might have resulted from the earlier admission.” United States v.

Segines, 17 F.3d 847, 856 (6th Cir. 1994) (internal quotation marks, citation, and alterations

omitted). This recitation of a basic trial principle did not deprive Guy of his right to confront

Minor 1. There was no error—let alone plain error—in the district court’s ruling.




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United States v. Guy

                                                  IV

        Guy’s next argument also requires an analysis of the district court’s evidentiary

determinations. The district court allowed the government to use certain images related to

pedophilia, such as the images of Pedo Bear, at trial. The images that Guy possessed included

captions encouraging the viewer’s interests in pedophilia. Guy had sought to exclude these

images before trial, arguing that they were inadmissible character evidence under Federal Rule of

Evidence 404.          The district court disagreed and found that the images went “to motive,

opportunity, intent, plan, knowledge, a lot of the things listed in [Rule] 404(b).” On appeal, Guy

argues that (1) he did not have notice of the government’s intent to use Rule 404(b) evidence,

and (2) that the images were inadmissible.

        Generally, we review the district court’s evidentiary determinations for abuse of

discretion. United States v. Perry, 438 F.3d 642, 647 (6th Cir. 2012). There is, however, a

dispute in this circuit about how this standard of review plays out in Rule 404(b) cases. See

United States v. Carter, 779 F.3d 623, 625 (6th Cir. 2015). Some panels apply abuse-of-

discretion review at all stages of the analysis, but other panels employ a mixed-standard test. See

id.; see also Perry, 438 F.3d at 647 (“In the specific context of Rule 404(b), we employ a three-

part test: (1) we first review for clear error a district court’s determination that the other act took

place, (2) we then conduct a de novo review of the district court’s legal determination that the

evidence was admissible for a proper purpose, and (3) we review for abuse of discretion the

district court’s determination that the probative value of the other acts evidence is not

substantially outweighed by its unfairly prejudicial effect.”) (quotation marks and citation

omitted). We do not need to resolve this conflict here, however, because Guy’s claim fails under




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United States v. Guy

either approach. See Carter, 779 F.3d at 625 (finding that defendant prevailed under either

approach).

        Rule 404 prohibits the use of “[e]vidence of a crime, wrong, or other act . . . to prove a

person’s character in order to show that on a particular occasion the person acted in accordance

with the character.” Fed. R. Evid. 404(b)(1). If, however, the evidence has “another purpose,

such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of

mistake, or lack of accident,” it “may be admissible.” Fed. R. Evid. 404(b)(2). “Evidence of

other acts is probative of a material issue other than character if (1) the evidence is offered for an

admissible purpose, (2) the purpose for which the evidence is offered is material or ‘in issue,’

and (3) the evidence is probative with regard to the purpose for which it is offered.” United

States v. Haywood, 280 F.3d 715, 720 (6th Cir. 2002).            If the defendant requests it, the

government “must . . . provide reasonable notice of the general nature of any such evidence that

the prosecutor intends to offer at trial.” Fed. R. Evid. 404(b)(2)(A).

        We begin with Guy’s argument that the government failed to provide notice of its intent

to use the images celebrating pedophilia as Rule 404(b) evidence. The parties do not dispute that

Guy properly requested notification of the government’s intent to use such evidence or that the

government did not provide written notification of its intent to use the specific images. Before

trial, Guy discovered that the government planned to use the pedophilia-related evidence, so he

filed a motion in limine characterizing the images as Rule 404(b) character evidence. The

government argued that it did not consider the evidence to be Rule 404(b) evidence, but asserted

that it had provided access to the discs seized from Guy’s home, which contained the evidence,

throughout the case’s discovery period. Based on the parties’ arguments, the district court held




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United States v. Guy

that Guy had sufficient actual notice of the images because they were on the discs containing the

evidence the government planned to use at trial.

        Rule 404(b) requires notice to be reasonable, and a district court has discretion to

determine reasonableness based on the circumstances. See United States v. Barnes, 49 F.3d

1144, 1147 (6th Cir. 1995). Even if we might question the government’s argument that it did not

believe the evidence was “other acts” evidence, we agree with the district court that Guy had

sufficient notice that the images would be introduced. Cf. United States v. Basham, 561 F.3d

302, 327 n.12 (4th Cir. 2009); United States v. Erickson, 75 F.3d 470, 478 (9th Cir. 1996). The

government notified Guy that it planned to use the images found on the discs in his home, and

these pedophilia-related images were on those discs. Moreover, Guy himself raised the issue

before trial. The district court did not abuse its discretion by finding the notice requirement

satisfied under these circumstances.

        We also hold that the district court did not err by admitting into evidence the images

relating to pedophilia. At issue is whether the district court erred by holding that the evidence

was introduced for a permissible purpose under Rule 404(b). Guy argues that the district court

failed to articulate why the images were permissible, and the government counters that the

images demonstrated a sexual interest in children, which is probative of the offenses for which

Guy was charged and convicted. We agree with the government. The images and their existence

on Guy’s computer are probative of his sexual interest in children, which is directly related to the

charges of production, receipt, and possession of child pornography and the obscene visual

representation of the sexual abuse of children. In a similar context, we have stated that the

possession of child erotica can “support an inference of a sexual interest in children.” United

States v. Hentzen, 638 F. App’x 427, 434 (6th Cir. 2015), cert. denied, 136 S. Ct. 1225 (2016).



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The same principle applies here. The pedophilia-related images were found on the same discs

containing the images underlying the offenses for which Guy was indicted, and the evidence was

closely related to those offenses. The images were therefore permissible evidence.

        Moreover, beyond stating that the images “did nothing more than cast [him] in a

perverted light,” Guy does not articulate how the probative value of the evidence was

substantially outweighed by its prejudicial effect. Under such a showing, evidence deemed

admissible under Rule 404(b) may be excluded pursuant to Rule 403.               Because we have

concluded that the Pedo Bear images were probative evidence of the indicted offenses, it

necessarily follows that the images had a broader purpose than merely casting Guy in a perverted

light. And any prejudice he faced by the images was a result of the images’ probative force, not

because the evidence allowed the jury to rest its decision “on an improper basis.” United States

v. Mendez-Ortiz, 810 F.2d 76, 79 (6th Cir. 1986). The use of these images was not unfairly

prejudicial, and we find no error in the district court’s refusing to exclude the images.

                                                 V

        Next, Guy argues that the district court improperly instructed the jury on the count for the

attempted production of child pornography. We review challenges to jury instructions for abuse

of discretion, assessing “the instructions as a whole, in order to determine whether they

adequately informed the jury of the relevant considerations and provided a basis in law for aiding

the jury in reaching its decision.” United States v. Russell, 595 F.3d 633, 642 (6th Cir. 2010)

(quoting United States v. Frederick, 406 F.3d 754, 761 (6th Cir. 2005)). “A judgment may be

reversed based upon an improper jury instruction ‘only if the instructions, viewed as a whole,

were confusing, misleading, or prejudicial.’” Id. (quoting Kuehne, 547 F.3d at 669).




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United States v. Guy

        “We regularly look to whether jury instructions mirror or track the pattern instructions as

one factor in determining whether any particular instruction is misleading or erroneous.” United

States v. Damra, 621 F.3d 474, 499 (6th Cir. 2010). Here, the district court’s jury instructions

followed the Sixth Circuit pattern jury instructions and described the proper elements for both

attempt and production of child pornography. One element of the production charge is that “the

defendant used a minor to engage in sexually explicit conduct for the purpose of producing a

visual depiction of that conduct.” See Sixth Circuit Pattern Jury Instr. § 16.01. The pattern

instructions further define “sexually explicit conduct” as including the “lascivious exhibition of

the genitals or pubic area of a person.”

        We consider six factors to be relevant in determining whether a depiction is “lascivious,”

although this list is “neither comprehensive nor necessarily applicable in every situation.”

United States v. Daniels, 653 F.3d 399, 407 (6th Cir. 2011) (quoting United States v. Brown, 579

F.3d 672, 680 (6th Cir. 2009)). These factors are:

                 1) whether the focal point of the visual depiction is on the child’s
                 genitalia or pubic area;

                 2) whether the setting of the visual depiction is sexually
                 suggestive, i.e., in a place or pose generally associated with sexual
                 activity;

                 3) whether the child is depicted in an unnatural pose, or in
                 inappropriate attire, considering the age of the child;

                 4) whether the child is fully or partially clothed, or nude;

                 5) whether the visual depiction suggests sexual coyness or a
                 willingness to engage in sexual activity;

                 6) whether the visual depiction is intended or designed to elicit a
                 sexual response in the viewer.




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United States v. Guy

Id. These six factors are known as the Dost factors. See Brown, 579 F.3d at 682 (citing Dost,

636 F. Supp. at 832).

        Guy argues that the district court’s decision to include the Dost factors, which are

enumerated in the pattern jury instructions, was erroneous. Essentially, he claims that the image

underlying the attempted-production charge must display genitals or the pubic area as a

condition precedent to the applicability of the Dost factors.       This position demonstrates a

fundamental misunderstanding of the attempt aspect of the charged offense. The question is not

whether the images he created “were lascivious.” Vanderwal, 533 F. App’x at 501. Rather, the

question for the jury was whether “he had the specific intent to create a lascivious [image].” Id.

        The inclusion of the Dost factors gave the jury information—in this case, the legal

definition of “lasciviousness”—necessary for it to determine whether Guy attempted to use a

minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of

sexually explicit conduct.    Sexually explicit conduct includes lascivious exhibitions of the

genitals or pubic area of a person, and the Dost factors help frame this analysis. As we have

already explained, the fact that the image underlying the attempted-production-of-child-

pornography count did not depict Minor 1’s genitals or pubic area is not dispositive of the

question of whether Guy attempted to produce a visual depiction of sexually explicit conduct.

Accordingly, we hold that the district court’s jury instructions adequately informed the jury of

the relevant considerations under the law, Russell, 595 F.3d at 642, and that the court did not err

by refusing to omit the Dost factors from the jury instruction.

                                                VI

        Finally, Guy argues that, at voir dire, four jurors made statements demonstrating that they

could not be impartial. Because empaneling an impartial jury is a task “left to the sound



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United States v. Guy

discretion of the district court,” we review a challenge to the district court’s voir dire for an

abuse of that discretion. United States v. Guzman, 450 F.3d 627, 629 (6th Cir. 2006). There was

no such abuse here. None of the four jurors Guy discusses sat on the jury, and he makes no

claim that any juror who actually sat on the jury was biased. Therefore, his only claim is that he

needed to use his peremptory challenges to remove potentially biased jurors.

         Supreme Court precedent forecloses this claim. Peremptory challenges are an important

part of “a defendant’s right to trial by an impartial jury,” but they are “auxiliary” and “not of

federal constitutional dimension.” United States v. Martinez-Salazar, 528 U.S. 304, 311 (2000)

(citations omitted). “[A] defendant’s exercise of peremptory challenges pursuant to Rule 24(b) is

not denied or impaired when the defendant chooses to use a peremptory challenge to remove a

juror who should have been excused for cause.” Id. at 317; see also United States v. Lawrence,

735 F.3d 385, 444 (6th Cir. 2013) (“[I]f a defendant exercises a peremptory challenge to remove

a juror the district court refused to excuse for cause, and does not allege that a biased juror sat on

the jury or that he needed more peremptory challenges, he has not been deprived of his

procedural or constitutional rights.”). This claim is without merit.4

                                                      VII

         Guy has not demonstrated that the district court committed any error that warrants

reversing his conviction or sentence. Accordingly, we AFFIRM the judgment of the district

court.




         4
          Guy tendered supplemental briefing raising additional issues on appeal not raised by his appellate
counsel. We decline to address these pro se arguments. See United States v. Williams, 641 F.3d 758, 770 (6th Cir.
2011).

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