                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 15a0497n.06

                                       Case No. 14-2058

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

                                                                           FILED
UNITED STATES OF AMERICA,                         )                   Jul 13, 2015
                                                  )              DEBORAH S. HUNT, Clerk
       Plaintiff-Appellee,                        )
                                                  )       ON APPEAL FROM THE UNITED
v.                                                )       STATES DISTRICT COURT FOR
                                                  )       THE WESTERN DISTRICT OF
JAMES ALBERT BECKMAN, JR., aka Jim                )       MICHIGAN
Beckman, Jimmy Beckman, aka                       )
Jimmyab2010,                                      )
                                                  )
       Defendant-Appellant.                       )


       BEFORE: SUTTON, GRIFFIN, and WHITE, Circuit Judges.

       HELENE N. WHITE, Circuit Judge.                James Beckman challenges his fifteen

convictions on a number of grounds. We AFFIRM.

       A sixteen-count superseding indictment charged that Beckman sexually exploited and

attempted to sexually exploit a minor, 18 U.S.C. § 2251(a) and (c), 18 U.S.C. § 2256; attempted

to coerce and entice a minor to engage in sexual activity, 18 U.S.C. § 2422(b); and distributed

and received child pornography, 18 U.S.C. § 2252A(a)(2)(A) and (b)(1), 18 U.S.C.

§ 2256(8)(A).   A jury found Beckman guilty on fifteen counts:        ten of attempted sexual

exploitation, one of attempted coercion and enticement, and two each of receipt and distribution
Case No. 14-2058
United States v. Beckman
of child pornography.1 The district court imposed an aggregate 360-month sentence and lifetime

supervised release, and ordered restitution. Beckman appeals his convictions.

                                                  I.

       Beckman and his ex-wife divorced in 2007, and their two sons’ visitation alternated

between Beckman’s home and their mother’s home. The oldest son, Child 1, was nine years old

when, on September 26, 2012, he confided in his mother that his father had touched him sexually

while a laptop computer and attached web camera displayed the touching on screen. Child 1 said

his father had done similar things two or three other times and that the latest incident occurred a

day or two earlier. The Michigan State Police investigated and Beckman consented to a search

of his home and the seizure of several computers, his work-assigned Blackberry cell phone, flash

drives, and other equipment. Beckman turned over an HP computer at his workplace.

       Further investigation revealed that Beckman had yet another work computer, a Lenovo

laptop, which was seized soon after. Forensic analysis of the Lenovo revealed portions of chats

to and from the Yahoo! Messenger account “jimmyab2010” that discussed sexual exploitation of

children, that a webcam had been used with the Lenovo, and that Beckman had accessed videos

with filenames indicative of child pornography.

       A     search-warrant-authorized      examination      of    Beckman’s      Yahoo!      account,

“jimmyab2010,” yielded thousands of pages of chats through Yahoo! Messenger indicating that

Beckman transmitted child pornography live, via webcam, and distributed and received child

pornography.

       At the two-week jury trial, the Government called witnesses including the FBI special

agent in charge of the investigation, state law-enforcement officers, a Yahoo! director of


1
 The jury acquitted Beckman of the completed offenses of sexual exploitation charged in counts 1, 2, 4,
and 7 through 12, and on count 6, attempted sexual exploitation.
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United States v. Beckman
engineering, computer experts, and members of the IT department at Beckman’s employer.

Child 1 testified (via remote camera) that, after masturbating in front of him a number of times

and showing him pornographic videos of children and adults, Beckman would enter Child 1’s

bedroom after Child 1 had fallen asleep, Beckman would pull the sheets and blankets off Child 1

and touch Child 1’s penis, at least once using a webcam that contemporaneously displayed what

Beckman was doing to him, and at other times aiming the webcam at Child 1’s genitals. Charles

Hughes and Justin Schrode, who were identified through the investigation of jimmyab2010,

testified that they received live transmissions of pornography from jimmyab2010, via webcam.2

Schrode posed as a woman with a young niece and chatted with Beckman regarding his sexual

conduct with Child 1. Hughes also posed as a woman, Sttace1324, and admitted that he asked

jimmyab2010 to abuse a child at his direction while watching a video feed. Hughes testified that

he saw Child 2 nude in the shower and saw Beckman rubbing his penis on Child 2’s buttocks.

Hughes also testified that he saw Beckman masturbating in a room with Child 2 present and saw

Beckman reach under the victim’s groin area and appear to be touching the child’s penis.

          Defense witnesses included a forensic specialist who analyzed Beckman’s work-assigned

Lenovo laptop, the only computer on which child pornography was loaded; a psychologist who

critiqued the forensic evaluation conducted of Child 1, and Beckman, who denied sexually

abusing his children, streaming to others live via webcam his sexual conduct with Child 1, and

intentionally receiving or distributing pornography.          Beckman testified that his chats were

fantasy.




2
    Schrode resided in Illinois and Hughes in Pennsylvania.
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United States v. Beckman
                                II. Denial of Motion to Suppress

       Beckman challenges the district court’s denial of his motion to suppress evidence seized

from his Yahoo! account pursuant to a federal warrant.

       Review of the district court’s legal conclusion regarding the existence of probable cause

is de novo. United States v. Helton, 314 F.3d 812, 820 (6th Cir. 2003). This court must uphold

the district court’s factual findings unless clearly erroneous, giving deference to an issuing

judge’s finding of probable cause in a search warrant application, and reversing that

determination only if arbitrary. Id.

       Beckman argues that the warrant application failed to establish the requisite nexus

between the factual basis for the warrant and his jimmyab2010 Yahoo! account. We disagree.

The search warrant application and continuation sheet established that police had found over

300 images of suspected child pornography received through Yahoo! Messenger on Beckman’s

Lenovo laptop and a chat history between jimmyab2010 and others suggesting that this account

was used in sexually exploiting children or distribution and receipt of child pornography. The

warrant application, prepared by FBI Special Agent Kovac, quoted various chats during which

jimmyab2010 offered to put one of his sons in front of the computer to engage in sexual

conversation with a user named Kathy, jimmyab2010 asked a user named sharkhunt2421

whether her daughter watched her “cum as well?,” and whether her daughter helped

sharkhunt2421 “jerk some,” and jimmyab2010 messaged that “I have shown a kinky mom his

hard on before” “on cam,” referring to Child 1. The warrant established a connection between

the charged offenses and Beckman’s Lenovo laptop and Yahoo! Messenger account.

       Beckman also argues that the search warrant application lacked enough factual

information to establish probable cause that evidence of the alleged crimes would be found



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United States v. Beckman
because, as counsel clarified at argument, it is unclear whether real-time live chats, images, and

video chatting can be stored at all (like emails) and even if they can be stored, that Yahoo!

would save or preserve them so that they were accessible to the Government through the search

warrant.

       In essence, Beckman maintains that all the Government could be confident of finding is

records of the fact of the real-time live chat messages. The short answer is that even if Beckman

is correct, such records would support that the chats actually happened through jimmyab2010

Yahoo! Messenger activity on Beckman’s Lenovo and were relevant to the offenses charged.

       Further, the warrant application need not have established with certainty that the

information sought would be found in Yahoo!’s records; “sufficient probability, not certainty, is

the touchstone of reasonableness under the Fourth Amendment.” Maryland v. Garrison, 480

U.S. 79, 87 (1987) (quoting Hill v. California, 401 U.S. 797, 804 (1971)). We affirm the district

court’s determination that the magistrate judge had a substantial basis for concluding that

evidence of a crime would be found in Beckman’s Yahoo! account.             See United States v.

Williams, 544 F.3d 683, 685–90 (6th Cir. 2008).

                    III. Admission of Chats with Unidentified Individuals

       Beckman contends that the district court erroneously admitted “chats” between him and

unidentified individuals outside of the charged counts and specific dates alleged in the

superseding indictment. He first asserts that these chats were irrelevant; but since he disputed

identity, knowledge, and intent, the chats were clearly relevant. Fed. R. Evid. 401, 402; United

States v. Delaney, 443 F. App’x 122, 132 (6th Cir. 2011).

       Beckman next argues that at least seventeen of these chats were inadmissible under Fed.

R. Evid. 404(b) because “words themselves cannot constitute other acts unless there is some sort



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United States v. Beckman
of proof that the words are actually a criminal act.” Appellant Br. 27. Without citing authority,

Beckman argued to the district court that, to the extent these chats involved charged counts, they

were admissible as admissions, but that the remaining chats were fantasies and not admissions

unless the Government called the other parties to the chats.            The district court expressed

skepticism, requested that counsel find supporting authority, and delayed ruling on the

admissibility of these chats until trial. The district court ruled the chats admissible at trial.

        In any event, Beckman is incorrect. Six of these chats were offered not under Rule

404(b) or 414, but because they involved charged offenses: exhibits 123, 136, and 138 (between

April 27 and May 1, 2012, chats discussing incidents when he “web cammed” his sons, i.e.,

admissions as to counts 3 and 4, attempted sexual exploitation; 154 (between July 28 and July

30, 2012, discussing showing Child 1’s penis via webcam, i.e., the basis for Count 11, attempted

sexual exploitation); 176 (January 19, 2012, chats in which jimmyab2010 identified himself by

his real name and identified his sons by their real names and ages), and 178 (chats in which

Beckman stated, “I only c2c” [cam to cam live] because of fear that law-enforcement was at the

other end of his chats, i.e., to refute that chats were simply sexual fantasy).3

        Boiled down, Beckman’s remaining Rule 404(b) argument is that there was insufficient

evidence that the other acts described in the chats occurred because words alone do not prove

that an act occurred. He cites no authority but, assuming the issue is preserved, a defendant’s

statements about his involvement in other criminal activities are admissible under Rule 404(b) to

show knowledge and absence of mistake where, as here, the statements concerned acts similar to

those for which the defendant is prosecuted and that occurred during the same general time

frame. United States v. Terry, 729 F.2d 1063, 1069–70 (6th Cir. 1984).

3
  The Government relied on Fed. R. Evid. 404(b) and 414 to support admission of chats that tended to
show other instances of Beckman producing, possessing, or distributing child pornography or attempting
to do so.
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United States v. Beckman
       Beckman also claims that the chats with unidentified persons constituted inadmissible

hearsay.   But Beckman concedes he is jimmyab2010; thus his portion of the chats were

admissions of a party opponent, Fed. R. Evid. 801(d)(2)(A), not hearsay. The other parties’

portions of the chats were properly admitted to provide context to Beckman’s own statements. 4

See United States v. Henderson, 626 F.3d 326, 336–37 (6th Cir. 2010) (observing that statements

Henderson made during recorded telephone conversations were non-hearsay admissions under

Fed. R. Evid. 801(d)(2)(A), and the statements made by others were not admitted to show the

truth of the matter asserted, but to provide context for Henderson’s admissions).

       Beckman waived his remaining claims–that the district court erroneously admitted chats

under the co-conspirator statement and adoptive-admission theories–by failing to identify any

chat admitted on either ground.5 United States v. Keller, 498 F.3d 316, 326 (6th Cir. 2007).

                              IV. Admission of Spoliation Evidence

       Beckman next challenges the admission of his alleged attempts to destroy a flash drive,

and to have his work-assigned Lenovo laptop and Blackberry cell phone wiped clean. He argues

that this evidence was irrelevant because the Government failed to lay the necessary foundation,

i.e., that he possessed the flash drive (and that it existed at all), and that he attempted to have the

Lenovo wiped clean after he was notified of the investigation. Lastly, Beckman argues that the

Government presented “convoluted evidence” that he tried to have the contents of his Blackberry

wiped clean.




4
  For example, during chats between Beckman and openmindedsinglemommy Beckman said he had
“jerked [his son] on cam for a lady/mom who was masturbating.” Openmindedsinglemommy asked
Beckman if she could see “your boy on cam,” and, after she sent Beckman photos, he asked, “you want to
see sons cock on cam?” Openmindedsinglemommy wrote, “I can see you . . . cool.”
5
  The record is clear that, in the end, the Government did not rely on the co-conspirator statement
exception as a basis for admission of any chats.
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United States v. Beckman
        The district court did not abuse its discretion.6 United States v. Jenkins, 593 F.3d 480,

484 (6th Cir. 2010). The Government introduced no evidence that Beckman attempted to

destroy a flash drive; rather, the expert who performed a forensic analysis of the Lenovo testified

that user J_Beckman had accessed an external drive that held a folder named “Jim,” and that

folder contained videos with file names suggesting child pornography. Beckman did not object,

and admitted having a number of external drives and keeping pornography on them at times.

        As to Beckman’s work-assigned Lenovo laptop, the Government laid the necessary

foundation, contrary to his contention.        Trooper McDonald went to Beckman’s home and

collected evidence and items including his Blackberry, and the two then went to Beckman’s

workplace, where Beckman turned over an HP computer, but not the Lenovo laptop. The record

is clear that after Trooper McDonald left Beckman’s office, Beckman took the Lenovo to his

employer’s IT department to have it scanned for viruses. The record is also clear that after police

seized his Blackberry, which he had used to communicate with Hughes, Beckman falsely

reported the device lost or stolen to the IT department so that its contents would be wiped clean

remotely, as IT staff had told Beckman it would.

        The evidence that after Trooper McDonald left his office, Beckman took the Lenovo to

the IT department to be scanned for viruses, and falsely reported to IT that his Blackberry was

lost or stolen so that IT would wipe its contents clean was relevant and properly admitted.

United States v. Blackwell, 459 F.3d 739, 768 (6th Cir. 2006) (spoliation evidence is admissible

to show consciousness of guilt). And, the district court properly instructed the jury on use of this

evidence.



6
  Beckman’s “Anticipated Objections to Proposed Government Evidence Contained in its Trial Brief”
included an objection to admission of his alleged attempts to conceal or destroy evidence as irrelevant and
inadmissible under Fed. R. Evid. 401, 402.
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United States v. Beckman
                V. Admission of Summary Exhibits under Fed. R. Evid. 1006

       Beckman challenges the admission of summaries created by the Government of alleged

Yahoo! Messenger conversations, arguing that the underlying documents were not so

voluminous that they could not be conveniently examined in court and that the summaries were

prejudicial and inaccurate because they emphasized so-called “video calls.”

       Review of the admission of summary exhibits is for abuse of discretion. United States v.

Jamieson, 427 F.3d 394, 409 (6th Cir. 2005). As pertinent here, admission of the summaries

under Fed. R. Evid. 1006 is proper if the Government shows that the underlying data is so

voluminous that it cannot be conveniently examined in court and the summary is accurate and

presented in a non-prejudicial manner. Id. “Summary testimony is appropriate to aid the jury in

the examination of testimony and documents in evidence”; however, the summary “should be

accompanied by a limiting instruction which informs the jury of the summary’s purpose and that

it does not constitute evidence.” United States v. Vasilakos, 508 F.3d 401, 412 (6th Cir. 2007).

                                                  A.

       Forty pages of records obtained from Yahoo! were in a raw format and contained

technical data that included metadata.7 The underlying raw data was admitted into evidence and

was available for the jury to examine. Beckman did not object to the introduction of the

underlying raw data but, without citing authority, argued that, to be voluminous, the data had to

be “unwieldy and virtually impossible . . . to present.”

       Below is a sample taken from one of the forty pages of raw data:

       “NSTANT”},{“from”:“sttace1324”,“txt”:“no”,”ts”:133930280,”cloud_id”:0,”clt_
       msg_context”:“896f9057804d6ddd45e4a2ad90277cbd”,“etype”:“INSTANT”},{“
       from”:“jimmyab2010”,“txt”:“He was watching and jerking some”,“ts”:1333930
       288,”,“clt_msg_context”:“XLxs8ujp/n0aDeeysi15kGnFQXjw4g==”,“etype”:“c7b
7
 Metadata is “data that describes and gives information about other data.” Oxforddictionaries.com (2015
Oxford University Press).
                                                  9
Case No. 14-2058
United States v. Beckman
       fc5720f171418f0e8f172faa15767”,“etype”:“INSTANT”},{“from”:“sttace1324”,“
       ts”,133393026,”call_duration”:0,“event”:“MISS”,“cal1_type”:”PC2PC”,“call_voi
       cemail”:0,“etype”:“VIDEO”},{“from”:“sttace1324”,“txt”:“try sendin it again”,
       “ts”:1333930318,”cloud_id”:0,“clt_msg_context”:“eb09833fd92c40191f8ba5d39
       933e89”,“etype”:“INSTANT”},{“from”“sttace1324”,“ts”:133393062,“call
       duration”:88,“event”:“IN”,“call_type”:”PC2PC”,“call_voicemail”:0,“etype”:“VI
       DEO”},{“from”:“sttace1324”,“txt”:“is he hard 2 bb”,“ts”:1333930471,“cloud
       _id”:0,“clt_msg_context”:“65788f25b78a125946ceab381abf58ec”,“etype”:“INST
       ANT”},{“from”:“sttace1324”,“see if u can get him to compare for a
       lil”,“ts”:1333930485,“cloud_id”:0,“clt_msg_context”:“3f159d4c8da8eaeb607b47
       b5f24abf68”,“etype”:“INSTANT”},{“from”:“jimmyab2010”,“txt”:“He did”,“ts”:

PID 388.

       Rule 1006 requires only that the in-court examination of the underlying material be

inconvenient, and the need for a summary increases when, as here, the underlying material

involves hard to understand technical data. See United States v. Campbell, 845 F.2d 1374, 1381

(6th Cir. 1988). The densely packed single-spaced pages of text consisting of abbreviations,

numbers, and words without clear beginning or end would be incomprehensible to most

laypersons and jurors; thus the summaries were properly admitted to assist the jury in

understanding the raw data. Id.

                                              B.

       Beckman also argues that the summaries were insufficiently accurate because they

emphasized video calls. But the Government’s own expert testified that video calls were nothing

more than a Yahoo! Messenger tag that did not necessarily establish that a web cam was used

during the call.

       Beckman cites three pages of his counsel’s voir dire examination of FBI Agent Kovac to

support his inaccuracy argument. When asked who ensured that the summaries were accurate

Agent Kovac responded, “I looked at every single one.” When asked the primary purpose of the

summaries, Kovac answered, “To show when video and voice calls are completed or attempted.”



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United States v. Beckman
PID 2392. When Beckman’s counsel finished Kovac’s voir dire examination, the following

colloquy took place:

       MR. MARKOU: [S]ubject to the objection I made prior to trial about the
       summaries, I have, I think they have laid an otherwise sufficient foundation today.

       THE COURT: I think you need to put that briefly on the record, your exact
       objection, Mr. Markou.

       MR. MARKOU: My objection before trial was that these were not sufficiently
       voluminous to warrant a summary exhibit, and there was a second issue about
       accuracy. The accuracy one was still left for the Court to decide. The Court had
       already made a decision on the voluminous nature of this. I just want to make
       sure I reiterate that particular objection regarding the accuracy. I think she has
       testified to, to at least some steps that were taken to ensure the accuracy.

       THE COURT: Thank you. Those exhibits are admitted.

PID 2393. Because Beckman advances no specifics regarding the alleged inaccuracies of the

summaries and Kovac’s testimony supports that the summaries are accurate, admission of the

summaries was not an abuse of discretion.

 VI. As-Applied Challenge to Sexual Exploitation and Coercion and Enticement Statutes

       Beckman contends that his attempt convictions (under 18 U.S.C. §§ 2251 and 2242(b))

cannot stand because they were “based on speech alone.” He challenges the statutes as applied.

“An as-applied challenge consists of a challenge to the statute’s application with respect to the

party before the court.” United States v. Abdulmutallab, 739 F.3d 891, 905 (6th Cir. 2014). Our

review is de novo. United States v. Watkins, 509 F.3d 277, 280 (6th Cir. 2007).

                                                A.

       Section 2251, titled “Sexual exploitation of children,” provides in pertinent part:

       (a) Any person who employs, uses, persuades, induces, entices, or coerces any
           minor to engage in, . . . with the intent that such minor engage in, any sexually
           explicit conduct for the purpose of producing any visual depiction of such
           conduct or for the purpose of transmitting a live visual depiction of such
           conduct, shall be punished . . . if such person knows or has reason to know

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Case No. 14-2058
United States v. Beckman
            that such visual depiction will be transported or transmitted using any means
            or facility of interstate . . . commerce . . . , if that visual depiction was
            produced or transmitted using materials that have been . . . transported in or
            affecting interstate . . . commerce by any means, including by computer . . . .

18 U.S.C. § 2251(a).

        Section 2422, titled “Coercion and enticement,” provides in pertinent part:

        (b) Whoever, using . . . any facility or means of interstate . . . commerce . . .
            knowingly persuades, induces, entices, or coerces any individual who has not
            attained the age of 18 years, to engage in . . . any sexual activity for which any
            person can be charged with a criminal offense, or attempts to do so, shall be
            fined . . . and imprisoned . . . .

18 U.S.C. § 2422(b) (emphasis added).

        Beckman relies principally on Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002),

which struck down statutory provisions8 that criminally proscribed virtual child pornography,

that is, sexually explicit images that appear to depict minors but were produced without using

any real children. The Ashcroft Court concluded that such prohibition “abridges the freedom to

engage in a substantial amount of lawful speech” that is neither obscene nor child pornography.

535 U.S. at 240.

        Beckman maintains that because the jury acquitted him of actually sending live images of

child pornography via the internet, only his words remain; if virtual child-pornography images

cannot be prosecuted, he argues, neither can his graphic sexual speech. But Ashcroft is of no

help to Beckman, as it neither supports that proposition nor addresses whether criminalizing

attempted sexual exploitation or attempted coercion and enticement of a minor to engage in

sexual activity offends the First Amendment. See, e.g., United States v. Kimler, 335 F.3d 1132,


8
  At issue was the prohibition of virtual child pornography in the Child Pornography Prevention Act of
1996, 18 U.S.C. § 2251 et seq. Section 2256(8)(B) prohibited any visual depiction that is or appears to be
of a minor engaging in sexually explicit conduct. Section 2256(8)(D) defined child pornography to
include “any sexually explicit image that was . . . distributed in such a manner that conveys the
impression” that it depicts a minor engaging in sexually explicit conduct. Ashcroft, 535 U.S. at 241–42.
                                                   12
Case No. 14-2058
United States v. Beckman
1141 (10th Cir. 2003) (holding of Ashcroft is limited to the constitutionality of §§ 2256(8)(B)

and (D) of the Child Pornography Prevention Act (CPPA), that is, the CPPA definitions that

prohibited possessing and distributing images that were not produced using real children); see

also United States v. Richardson, 304 F.3d 1061, 1063–64 (11th Cir. 2002).

       The district court properly denied Beckman’s pre-trial motion to dismiss the superseding

indictment’s attempt counts under the First Amendment on the basis that Beckman was not

arguing that the First Amendment permitted him to engage in the charged conduct, but rather,

that he did not commit the charged offenses.

       Beckman’s conviction of ten counts of attempted sexual exploitation of a child,

18 U.S.C. § 2251, required a finding that Beckman intended to produce child pornography and

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

2013) (noting that to convict of attempted production of child pornography, the government must

show beyond a reasonable doubt that the defendant specifically intended to create child

pornography and took a substantial step toward creation of child pornography.) The conviction

of Count 5, attempted coercion and enticement of a child, 18 U.S.C. § 2422(b), required a

finding that Beckman intended to coerce and entice a child and took a substantial step towards

doing so. Id. As the Government asserts, neither type of conduct is protected by the First

Amendment. See New York v. Ferber, 458 U.S. 747, 758 (1982) (noting that the legislative

judgment of virtually all states and the United States proscribing the production of child

pornography easily passes muster under the First Amendment.); United States v. Bailey,

228 F.3d 637, 639 (6th Cir. 2000)9 (concluding that section 2422(b) only applied to those who



9
  This court rejected a challenge to § 2242(b) as infringing constitutionally protected speech in
United States v. Bailey, where the defendant argued that the statute “requires the specific intent
to commit illegal sexual acts rather than just the intent to persuade or solicit the minor victim to
                                                13
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United States v. Beckman
knowingly persuaded or enticed, or attempted to persuade or entice, minors, and thus affected

only those with intent to target minors, and any limited or incidental effect on speech did not

infringe on constitutionally protected rights of adults.) Other circuits have similarly held. See

e.g., United States v. Hornaday, 392 F.3d 1306, 1311 (11th Cir. 2004) (“Speech attempting to

arrange the sexual abuse of children is no more constitutionally protected than speech attempting

any other type of crime.”); United States v. Meek, 366 F.3d 705, 721 (9th Cir. 2004) (rejecting a

First Amendment overbreadth as-applied challenge to § 2422(b) when applied to situations

involving an actual adult, observing that “there is no otherwise legitimate speech jeopardized by

§ 2422 because the statute only criminalizes conduct, i.e., the targeted inducement of minors for

illegal sexual activity. Here, speech is merely the vehicle through which a pedophile ensnares

the victim.”).

                                               B.

       Beckman also challenges his conviction on Count 5, attempted coercion and enticement

of a child, 18 U.S.C. § 2422(b), on the basis that no actual child was involved. Count 5 involved

Schrode, who pretended that he was a woman with a six-year-old daughter, using screen names

including “pizzagirl12891.” Chats between Schrode and jimmyab2010 were admitted at trial

and Schrode testified that he chatted with jimmyab2010 20 to 30 times, sent him child

pornography, and received live transmissions of jimmyab2010 giving oral sex to his son.

Schrode told jimmyab2010 during a chat that jimmyab2010 “can tell me what to do when I get in


commit sexual acts,” and that “to hold otherwise, would criminalize mere sexual banter on the
internet, or would criminalize content-based speech in violation of the First Amendment.” 228
F.3d 637, 638 (6th Cir. 2000). This court concluded that § 2242(b) only applied to those who
knowingly persuaded or enticed, or attempted to persuade or entice, minors, and thus affected
only those with intent to target minors, and any limited or incidental effect on speech did not
infringe on constitutionally protected rights of adults. “Put another way, the Defendant simply
does not have a First Amendment right to attempt to persuade minors to engage in illegal sex
acts.” Id. at 639.
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United States v. Beckman
the room with my daughter,” and jimmyab2010 responded, “likewise,” and “you can pull pants

down like I will my son[,] I stroke him you finger her some.”

       Over Beckman’s objection, the district court instructed the jury that an actual child need

not be involved, in accordance with United States v. Hackworth, 483 F. App’x 972, 976–78 (6th

Cir. 2012) (“the absence of an actual minor does not preclude Hackworth’s conviction for

violating 18 U.S.C. § 2422(b)”), and United States v. Hart, 635 F.3d 850, 855 (6th Cir. 2011) (to

convict under § 2422(b), the jury had to unanimously agree that Hart used interstate commerce in

an attempt to knowingly persuade an individual under the age of 18 to engage in sexual activity

and “that Hart believed that such an individual was less than 18.”)

       Beckman claims that Hackworth contravenes Ashcroft, but Ashcroft nowhere addresses

whether an actual minor is required to convict under § 2422(b) or whether attempting to coerce

and entice a minor constitutes protected speech. In fact, the Ashcroft Court observed that the

issue before it did not involve attempt, incitement, solicitation, or conspiracy. 535 U.S. at 253.

       This court has held that an actual minor need not be involved in order to convict under

§ 2422(b), Hart, 635 F.3d at 855; Hackworth, 483 F. App’x at 976–78, as have other federal

courts of appeals, see United States v. Slaughter, 708 F.3d 1208, 1215 (11th Cir. 2013) (“a

violation of § 2422(b) does not require an actual minor due to its attempt clause.”); United States

v. Davis, 165 F. App’x 586, 588 (10th Cir. 2006) (“we reject Davis’s argument that § 2422(b) is

unconstitutionally overbroad because it encompasses prosecutions for adults posing as minors,”;

. . . because an actual minor victim is not required for an attempt conviction under § 2422(b).);

Meek, 366 F.3d at 718–19 (“The attempt provision [of § 2422(b)] is no different than an

attempted solicitation of prostitution, where the criminal conduct is the knowing effort to solicit

an individual for prostitution. That the individual turns out to be a decoy undercover officer does



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United States v. Beckman
not vitiate the criminal conduct”). Beckman fails to support his argument that an actual child

must be involved in order for an attempt conviction under § 2422(b) to stand and his as-applied

challenge to sections 2251 and 2422(b) fails.

                                                VII.

         Beckman contends that the evidence showed that sexually abusive conduct occurred only

in Michigan, and that only a description of the abuse in words was transmitted over the internet,

and thus that his attempt convictions on Counts 1 through 5 and 7 through 12 must be reversed

because the Government failed to prove that the Internet was used to transmit, via webcam, child

pornography. This is a sufficiency-of-the-evidence argument. See United States v. Riddle,

249 F.3d 529, 536 (6th Cir. 2001) (observing that the interstate commerce requirement does not

affect subject matter jurisdiction, but rather, ‘is a challenge to one element of the government’s

case and is therefore considered a claim about the sufficiency of the evidence”). This court’s

review is de novo, reviewing the evidence in the light most favorable to the prosecution and

determining whether any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. United States v. Boring, 557 F.3d 707, 710–11 (6th Cir.

2009).

                                                A.

         The interstate commerce element was established through the testimony of Hughes and

Schrode and chats admitted through Special Agent Kovac and others. Schrode told Beckman he

lived out of state, Beckman concedes using equipment manufactured outside Michigan, and the

Yahoo! data showed that Beckman used the video feature while sexually abusing Child 1 and

transmitting live to both Hughes and Schrode. Beckman’s claim that his conduct occurred only

in Michigan is meritless. See United States v. Napier, --- F.3d ---, No. 14-3492, 2015 WL



                                                16
Case No. 14-2058
United States v. Beckman
2386505, at *9–12 (6th Cir. May 20, 2015). Because Beckman fails to show that the record is

devoid of evidence pointing to guilt, this claim fails. United States v. Tragas, 727 F.3d 610, 617

(6th Cir. 2013) (when reviewing criminal conviction for sufficiency, all reasonable inferences

and resolutions of credibility are made in the jury’s favor).

                                                   B.

        Beckman also claims that on the attempt charges the jury should have been instructed that

there must be proof that the crime “affected” interstate commerce and that Beckman used

interstate commerce to commit the attempt. Because Beckman objected below on different

grounds than he advances on appeal,10 review is for plain error. United States v. Semrau, 693

F.3d 510, 526–27 (6th Cir. 2012) (citing Fed. R. Crim P. 30(d)). Plain error in the context of

instructional error “requires a finding that, taken as a whole, the jury instructions were so clearly

erroneous as to likely produce a grave miscarriage of justice.” Semrau, 693 F.3d at 528.

        The jury instructions accorded with this circuit’s Pattern Criminal Jury Instructions

§§ 16.01, 16.09, 5.01 (6th Cir. 2013), and were consistent with the language of §§ 2251(a) and

2422(b). The jury was instructed that it had to find that Beckman intended to commit the

underlying offense and committed an overt act that was a substantial step toward achieving that

objective, and of the interstate commerce element.           And, Beckman concedes that he used

equipment manufactured outside of Michigan, and chatted with individuals who were outside of

Michigan via the internet. There was no plain instructional error.

                                                 VIII.

        Beckman also challenges the district court’s jury instruction on the crime of enticing or

coercing a minor to commit a sexual act because it provided that such could be done through an

10
  Beckman objected to Jury Instruction No. 4, Sixth Circuit Pattern Criminal Jury Instructions §§ 16.01 &
5.01 (6th Cir. 2013); 18 U.S.C § 2251(a), which covered counts 1 through 4 and 6 through 12–using a
minor to engage in sexually explicit conduct to produce a visual depiction or attempting to do so.
                                                   17
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United States v. Beckman
intermediary. Review of this preserved claim is de novo. United States v. Reichert, 747 F.3d

445, 451 (6th Cir. 2014).

        The district court instructed the jury in pertinent part that the Government had to prove:

        that the defendant knowingly persuaded, induced, enticed or coerced an individual
        under the age of 18 to engage in unlawful sexual activity. It’s not necessary for
        the government to prove that the defendant communicated directly with a minor.
        Dealing with an adult intermediary for the purpose of enticing or coercing the
        minor is sufficient.

PID 2816.

        This court rejected a similar challenge in United States v. Harmon, 593 F. App’x 455,

467 (6th Cir. 2014), holding that an instruction stating that it is sufficient for the Government to

prove the defendant attempted to persuade, etc., a minor by communicating with someone he

believed was the minor’s parent, guardian, or someone else likely to have influence over the

minor was “an accurate representation of the law,” and citing six federal courts of appeals

decisions in accord. We follow Harmon and conclude there was no instructional error.11

                                                    IX.

        Beckman claims that there was insufficient evidence supporting his convictions of

distributing and receiving child pornography (Counts 13-16) because the Government did not

prove identity or that his actions affected interstate commerce. Beckman moved for judgment of

acquittal after the Government’s case-in-chief on the basis of insufficient evidence that he

received or distributed images in 2011 but did not renew the motion at the close of all the

evidence; thus review is for plain error. Tragas, 727 F.3d at 617.

        Evidence at trial showed that Beckman distributed child pornography via the internet

through Yahoo! Messenger. Hundreds of images of child pornography were found on the


11
  Because we find no error we need not address Beckman’s claim that cumulative error warrants reversal of his
convictions.

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United States v. Beckman
Lenovo laptop in a photo-sharing folder located in the “all users” folder. Kraus testified that

some of these images were received and distributed via the internet in November 2011 using

Yahoo! Messenger.

        As to identity, there was ample evidence that Beckman received and distributed child

pornography. Beckman admitted downloading Yahoo! Messenger on the Lenovo and admitted

trading photos using Messenger, although he claimed the children were clothed, and also

admitted that he saw child pornography during the trading sessions. Kraus examined all user

accounts on the Lenovo and testified that only Beckman’s profile had evidence of activity on

Yahoo! Messenger. Kraus found photos of Beckman and his family on the Lenovo and testified

that those photos had been distributed through Yahoo! Messenger and were in the same photo-

sharing folder that contained subfolders of child pornography.

        The record is not devoid of evidence pointing to guilt, id.; thus Beckman’s sufficiency

claim fails.

                                                X.

        Remaining is the double-jeopardy argument Beckman raises for the first time in his

Reply Brief, which is waived, United States v. Moore, 376 F.3d 570, 576 (6th Cir. 2004), and, in

any event, fails on the merits. Relying on Yeager v. United States, 557 U.S. 110 (2009),

Beckman asserts that the doctrine of collateral estoppel, inherent in the Double Jeopardy clause,

precludes his convictions for attempt when he was acquitted of the completed offense. He bases

this assertion on the questionable premise that the jury necessarily found facts that are

inconsistent with his being guilty of the attempts. Even accepting that premise, Beckman cites

no case to support the novel proposition that collateral estoppel applies in a single trial. Yeager

involved a new trial after a previous jury hung on some counts and acquitted on others. The



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United States v. Beckman
second trial is the factor that triggered double jeopardy concerns. Yeager, 557 U.S. at 115–16,

118. Also misplaced is Beckman’s reliance on Ashe v. Swenson, as it involved an acquittal

followed by a second prosecution for armed robbery, again implicating the protection against

double jeopardy. 397 U.S. 436, 443–46 (1970).

       When a single jury renders verdicts of both conviction and acquittal, as in the instant

case, a defendant’s sole recourse is to challenge the sufficiency of the evidence on the counts of

conviction. United States v. Powell, 469 U.S. 57, 64–68 (1984); see also United States v. Ruiz,

386 F. App’x 530, 534 (6th Cir. 2010) (affirming district court’s rejection of defendant’s motion

for judgment of acquittal or new trial where jury found her guilty of traveling in interstate

commerce with intent to promote or facilitate an unlawful activity but acquitted her of the

alleged unlawful activity, because Powell directs that a defendant’s “avenue of relief, if any, is

through a sufficiency of the evidence evaluation.”); United States v. Smith, 749 F.3d 465, 498

(6th Cir. 2014) (rejecting Government’s cross-appeal where jury acquitted defendant of

conspiring to commit mail fraud but convicted on substantive charge of committing mail fraud

and district court reversed conviction on insufficiency grounds (not because of inconsistent

verdicts), noting “[i]nconsistent jury verdicts are unreviewable except for ‘a situation in which a

defendant receives two guilty verdicts that are logically inconsistent’”) (quoting Ruiz, 386 F.

App’x at 533). Beckman’s unpreserved argument fails on the merits.

       For these reasons, we AFFIRM Beckman’s convictions.




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