                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 19-4085


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

KYLE STEPHEN THOMPSON,

                    Defendant - Appellant.



Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Theodore D. Chuang, District Judge. (8:17-cr-00195-TDC-1)


Submitted: January 30, 2020                                       Decided: April 6, 2020


Before MOTZ, DIAZ, and HARRIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Stephen B. Mercer, RAQUINMERCER LLC, Rockville, Maryland, for Appellant. Robert
K. Hur, United States Attorney, Kelly O. Hayes, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       A federal jury convicted Kyle Stephen Thompson of 18 counts of production of

child pornography, in violation of 18 U.S.C. § 2251(a) (2018), and the district court

sentenced him to 5040 months’ imprisonment. On appeal, Thompson argues that the

district court erred when it (1) provided an inadequate jury instruction and refused his

proposed jury instruction, and (2) denied his motion to suppress. We affirm.

       “We review a district court’s decision to give a particular jury instruction for abuse

of discretion, and review whether a jury instruction incorrectly stated the law de novo.”

United States v. Miltier, 882 F.3d 81, 89 (4th Cir.) (citations omitted), cert. denied, 139 S.

Ct. 130 (2018). “In reviewing the adequacy of jury instructions, we determine whether the

instructions construed as a whole, and in light of the whole record, adequately informed

the jury of the controlling legal principles without misleading or confusing the jury to the

prejudice of the objecting party.” United States v. Kivanc, 714 F.3d 782, 794 (4th Cir.

2013) (internal quotation marks omitted). “Even if a jury was erroneously instructed,

however, we will not set aside a resulting verdict unless the erroneous instruction seriously

prejudiced the challenging party’s case.” Miltier, 882 F.3d at 89 (internal quotation marks

omitted).

       As relevant here, the statute of conviction prohibits any person from employing,

using, persuading, inducing, enticing, or coercing any minor to engage in sexually-explicit

conduct “for the purpose of producing any visual depiction of such conduct.” 18 U.S.C.

§ 2251(a). The phrase “for the purpose of” is not further defined in the statute. See id.

The district court read the following instruction regarding this element:

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       The second element which the government must prove beyond a reasonable
       doubt is that the defendant knowingly used or employed or persuaded or
       induced or enticed or coerced the victim, Victim 1, 2 or 3 as charged to
       engage in sexually-explicit conduct for the purpose of producing a visual
       depiction of that conduct. . . . The government does not have to prove that
       the sole purpose or the primary purpose of engaging in such conduct was to
       produce a visual depiction. But the government must prove that producing a
       visual depiction of the sexually-explicit conduct was one of the defendant’s
       purposes for using, employing, persuading, using, enticing, coercing the
       victim to engage in sexually-explicit conduct. And that it was a significant
       or motivating purpose and was not merely incidental to the sexually-explicit
       conduct.

J.A. 646.

       We conclude that, in light of the record as a whole, this instruction adequately

informed the jury of the controlling legal principles. See, e.g., United States v. Palomino-

Coronado, 805 F.3d 127, 130-31 (4th Cir. 2015); United States v. Lebowitz, 676 F.3d 1000,

1014-15 (11th Cir. 2012). Moreover, even if we were to assume error, such error would

have been harmless given the overwhelming evidence that producing videos was one of

Thompson’s purposes – and not merely an incidental one – when he engaged in the sexually

explicit conduct.

       Thompson also argues that the district court erred in refusing to give his “theory of

defense” jury instruction, which would have informed the jury that, “where there are two

or more purposes to engage in such conduct, the Government must prove that Defendant’s

prevailing or most influential purpose was to produce a visual depiction of the sexually

explicit conduct.” We review for abuse of discretion a trial court’s decision not to give a

proposed instruction. United States v. Raza, 876 F.3d 604, 614 (4th Cir. 2017). Declining

to give a proposed instruction “is reversible error only if [the instruction] (1) was correct,


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(2) was not substantially covered by the charge that the district court actually gave to the

jury, and (3) involved some point so important that the failure to give the instruction

seriously impaired the defendant’s defense.” Id. (internal quotation marks omitted). Here,

Thompson’s proposed instruction did not correctly state the law, see, e.g., Palomino-

Coronado, 805 F.3d at 130-31, and the district court thus did not abuse its discretion in

rejecting it.

       Turning to the denial of the motion to suppress, we review the district court’s legal

conclusions de novo and factual findings for clear error. United States v. Seerden, 916

F.3d 360, 365 (4th Cir. 2019). “In doing so, we must construe the evidence in the light

most favorable to the prevailing party and give due weight to inferences drawn from those

facts by resident judges and law enforcement officers.” United States v. Lull, 824 F.3d

109, 114-15 (4th Cir. 2016) (internal quotation marks omitted).

       A search warrant may only be issued upon a showing of probable cause, United

States v. Lyles, 910 F.3d 787, 791 (4th Cir. 2018), and evidence obtained from an invalid

warrant typically cannot be used in a criminal proceeding against the victim of the illegal

search, United States v. Thomas, 908 F.3d 68, 72 (4th Cir.), cert. denied, 140 S. Ct. 49

(2019). One exception to this general rule is that evidence obtained by an officer acting in

objective good faith reliance on a search warrant will not be suppressed even if the warrant

is later deemed invalid. United States v. Leon, 468 U.S. 897, 922 (1984). However, the

good faith exception does not apply where the warrant was issued based on a deliberately

or recklessly false affidavit. Seerden, 916 F.3d at 366.



                                             4
       In the instant case, the district court proceeded directly to the good faith analysis

and found that the officers acted in good faith reliance on the signed warrant. See Leon,

468 U.S. at 925 (permitting courts to start with good faith analysis).                The court

subsequently held a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), and,

after hearing testimony from the warrant’s affiant, concluded that no material information

in the affidavit was deliberately or recklessly false. The court therefore refused to revisit

its previous good faith determination. On appeal, Thompson argues that the district court

should have found a Franks violation because the affiant displayed a reckless disregard for

the truth, and that the district court thus erred in finding that the officers executed the search

warrant in good faith.

       To establish a Franks violation, the defendant must prove by a preponderance of the

evidence that (1) “a false statement knowingly and intentionally, or with reckless disregard

for the truth, was included by the affiant in the warrant affidavit,” and (2) “with the

affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to

establish probable cause.” Lull, 824 F.3d at 114 (internal quotation marks omitted). “[A]n

allegedly false statement in a probable-cause affidavit amounts to reckless disregard if the

drafter made the statement with a high degree of awareness of its probable falsity.” Nero

v. Mosby, 890 F.3d 106, 128 (4th Cir.) (brackets and internal quotation marks omitted),

cert. denied, 139 S. Ct. 490 (2018). Here, the district court did not err in finding that

Thompson failed to meet this burden. To the extent that one statement in the affidavit

misrepresented the source of the affiant’s information, as Thompson argues on appeal,

there is no evidence that this was done intentionally or with a “high degree of awareness

                                                5
of its probable falsity.” See id. Accordingly, the district court did not err in failing to find

a Franks violation or in concluding that the officers executed the search warrant in good

faith.

         We therefore affirm the criminal judgment. We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before this

court and argument would not aid the decisional process.

                                                                                  AFFIRMED




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