           Case: 14-13389   Date Filed: 06/15/2015   Page: 1 of 7


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-13389
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:13-cr-20866-RSR-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

CARLOS LUNA RAMIREZ,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                             (June 15, 2015)



Before JORDAN, JILL PRYOR, and EDMONDSON, Circuit Judges.
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PER CURIAM:



      Carlos Luna Ramirez appeals his conviction for possession of child

pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2). On appeal,

Ramirez argues that the indictment was defective as a matter of law because -- he

says -- the crime charged was the knowing possession of the computer, rather than

the knowing possession of the pornographic material. He contends that the

indictment allowed him to be convicted without a finding that he knew his

computer contained prohibited material because the indictment failed to track the

statutory language or allege the crime with enough precision to give him notice of

the charge he must defend against.

      We review de novo whether an indictment sufficiently alleges a statutorily

proscribed offense. United States v. Seher, 562 F.3d 1344, 1356 (11th Cir. 2009).

An indictment’s failure to charge a crime in violation of United States law

constitutes a jurisdictional defect; and, therefore, may be raised at any time. See

United States v. Izurieta, 710 F.3d 1176, 1179 (11th Cir. 2013). But not all defects

in the indictment deprive a district court of jurisdiction. United States v. Cotton,

535 U.S. 625, 630, 122 S.Ct. 1781, 1785, 152 L.Ed.2d 860 (2002).

      Where a defendant fails to challenge the sufficiency of the indictment in the

district court, we will determine the indictment sufficient “unless it is so defective


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that it does not, by any reasonable construction, charge an offense for which the

defendant is convicted.” United States v. Lang, 732 F.3d 1246, 1247 (11th Cir.

2013). An indictment is jurisdictionally sufficient if it “(1) presents the essential

elements of the charged offense, (2) notifies the accused of the charges to be

defended against, and (3) enables the accused to rely upon a judgment under the

indictment as a bar against double jeopardy for any subsequent prosecution for the

same offense.” Id. We have said that an indictment’s failure to allege a necessary

element of mens rea is a non-jurisdictional defect that can be waived. United States

v. Brown, 752 F.3d 1344, 1351 (11th Cir. 2014). An indictment need not track the

statutory language: specific reference to the statute on which the charge was based

adequately informs the defendant of the charge against him. United States v. Fern,

155 F.3d 1318, 1325 (11th Cir. 1998). The appropriate test is not whether the

indictment could be more clear, but whether it conforms to minimal constitutional

standards. United States v. McGarity, 669 F.3d 1218, 1235-36 (11th Cir. 2012).


      Section 2252(a)(4)(B) of Title 18 of the United States Code punishes

      any person who . . . knowingly possesses, or knowingly accesses with
      intent to view, 1 or more books, magazines, periodicals, films, video
      tapes, or other matter which contain any visual depiction . . . if . . . the
      producing of such visual depiction involves the use of a minor
      engaging in sexually explicit conduct . . . and . . . such visual
      depiction is of such conduct.

18 U.S.C. § 2252(a)(4)(B).


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       Upon review of the record and consideration of the parties’ briefs, we see no

jurisdictional defect in the indictment.

       Ramirez did not challenge the indictment in the district court; so, we may

only review the indictment for its jurisdictional sufficiency. Ramirez’s indictment

was jurisdictionally sufficient because it presented the essential elements of

possession of child pornography, it notified Ramirez that he was charged with

possession of child pornography, and it enabled Ramirez to rely on the indictment

as a bar to double jeopardy. In addition, the indictment referenced the statute

under which he was charged, 18 U.S.C. § 2252(a)(4)(B) and (b)(2). Thus, we

conclude no jurisdictional defect is present in the indictment.

       Ramirez next argues that the district court committed error by admitting

expert testimony on the ages of the children in the pornographic videos where the

ages of the children had been stipulated, by allowing the government to ask

prejudicial questions of a witness (touching on whether defendant’s family had

attempted to influence witness testimony) with no good faith basis, and failing to

clarify in its jury instructions or in the government’s closing argument that

Ramirez could only be convicted upon a finding that he knowingly possessed child

pornography on his computer. He contends that these errors collectively deprived

him of a fair trial.




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      We review the evidentiary rulings of the district court for clear abuse of

discretion. United States v. Dodds, 347 F.3d 893, 897 (11th Cir. 2003). The

cumulative error doctrine provides for a reversal where an aggregation of non-

reversible errors yields a denial of the constitutional right to a fair trial. United

States v. Capers, 708 F.3d 1286, 1299 (11th Cir. 2013). “The harmlessness of

cumulative error is determined by conducting the same inquiry as for individual

error—courts look to see whether the defendant’s substantial rights were affected.”

Id. The effect of the errors will depend on several things, including the nature and

number of the errors committed, their interrelationship and combined effect, how

the district court dealt with the errors as they arose, and the length of the trial.

United States v. Baker, 432 F.3d 1189, 1223 (11th Cir. 2005). Where no error

exists in the district court’s rulings, reversal under the cumulative error doctrine is

inappropriate. See Capers, 708 F.3d at 1299.

      While a party may generally not preclude his adversary’s offer of proof by

stipulation, this proposition is qualified by Rule 403 of the Federal Rules of

Evidence. United States v. O’Shea, 724 F.2d 1514, 1516 (11th Cir. 1984). Rule

403 provides that a district court may exclude relevant evidence when its probative

value is substantially outweighed by a danger of unfair prejudice or needlessly

presenting cumulative evidence. Fed. R. Evid. 403. But exclusion of evidence

under Rule 403 is an extraordinary remedy which should be invoked sparingly, and


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the balance should be struck in favor of admissibility. United States v. Alfaro-

Moncada, 607 F.3d 720, 734 (11th Cir. 2010).

      Lawyers may ask questions of a witness as long as there is a good-faith

factual basis. See United States v. Foley, 508 F.3d 627, 637 (11th Cir. 2007).

      The doctrine of invited error applies where a defendant agrees to the court’s

proposed jury instructions, and review of the issue is waived even if plain error

would result. United States v. Carter, 776 F.3d 1309, 1323 (11th Cir. 2015).

      Upon review of the record and consideration of the parties’ briefs, we see no

reversible error.

      Ramirez has not established that the district court committed cumulative

error because each of the alleged errors was an appropriate ruling. The district

court did not abuse its discretion in admitting the expert testimony on the ages of

the children in the videos. Despite that the evidence may have been cumulative, the

district court was within its discretion to determine that the government was

entitled to present the testimony. The district court also did not abuse its discretion

in allowing the government to question the pertinent witness (J.J.) because the

government had a good faith basis for doing so. Finally, Ramirez has waived his

ability to have his jury instruction argument heard on appeal because he agreed to

the district court’s proposed jury instructions.




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      We conclude that the indictment was jurisdictionally sufficient, and no error

deprived Ramirez of fair trial. Thus, we affirm Ramirez’s conviction and sentence.

      AFFIRMED.




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