                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 13 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-10358

                Plaintiff-Appellee,             D.C. No.
                                                1:13-cr-00409-DAD-BAM-1
 v.

ADAM ALAN HENRY,                                MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Eastern District of California
                    Dale A. Drozd, District Judge, Presiding

                     Argued and Submitted December 2, 2019
                            San Francisco, California

Before: W. FLETCHER, CLIFTON, and MILLER, Circuit Judges.

      Adam Henry appeals his convictions for conspiracy to sexually exploit a

minor and for knowingly receiving or distributing material involving the sexual

exploitation of minors, in violation of 18 U.S.C. §§ 2251(a), 2251(e) and 2252(a).

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      1.     The district court did not abuse its discretion in denying Henry’s



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
motions for a mistrial, acquittal, or a new trial on the ground that the government

improperly presented the testimony of a Child Protective Services officer who

described statements Henry made after his arrest. The affirmative use of that

testimony would have violated the Fifth Amendment because Henry’s statements

were the product of a custodial interrogation conducted after Henry had invoked

his right to counsel. See Edwards v. Arizona, 451 U.S. 477 (1981). But the district

court ultimately concluded that the statements were nevertheless admissible to

impeach Henry’s inconsistent testimony. See Harris v. New York, 401 U.S. 222,

224–26 (1971).

      We need not decide whether the district court erred in admitting the

testimony, or in not giving a limiting instruction directing the jury to consider it

only for impeachment purposes, see Henry v. Kernan, 197 F.3d 1021, 1029 (9th

Cir. 1999), because any error was harmless beyond a reasonable doubt. The

officer’s testimony—that Henry told him that “his wife was not part of the

charges” brought against Henry—was presented for the limited purpose of

rebutting Henry’s inconsistent statements suggesting that his wife acted alone in

producing, receiving, or distributing child pornography. The government never

otherwise referenced the testimony in the presence of the jury. Moreover, the

testimony had minimal inculpatory value on its own and was cumulative of other

properly admitted evidence. That evidence overwhelmingly showed that Henry


                                           2
conspired with his wife to produce child pornography and knowingly received or

distributed child pornography.

      2.     Nor did the district court err in concluding that the government

complied with its discovery obligations. Henry argues that the government violated

his due process rights because it did not disclose the identity of the victim depicted

in an exhibit until just a few days before trial. But after holding an evidentiary

hearing, the district court found that the government had made the exhibit

“reasonably available” to Henry’s forensic expert more than three years earlier,

18 U.S.C. § 3509(m)(2)(A), and that finding is not clearly erroneous. See United

States v. Zaragoza-Moreira, 780 F.3d 971, 977 (9th Cir. 2015). Even if the

identification of a victim depicted in a previously disclosed exhibit constitutes

“additional evidence,” the government complied with its duty to promptly disclose

that information to Henry’s counsel before trial. See Fed. R. Crim. P. 16(c).

      3.     The district court also did not err in concluding that the evidence was

sufficient to support Henry’s conviction for conspiracy to sexually exploit a minor

in violation of 18 U.S.C. § 2251(a). Section 2251(a) prohibits “producing any

visual depiction” of a minor engaged in “sexually explicit conduct,” which is

defined in relevant part as the “lascivious exhibition of the anus, genitals, or pubic

area.” Id. § 2256(2)(A)(v); see also United States v. Weigand, 812 F.2d 1239,

1244–45 (9th Cir. 1987). The government presented evidence that Henry and his


                                           3
wife set up hidden cameras in their bathroom and bedroom shortly before their 14-

year-old babysitter arrived, and that they used those cameras to produce videos

depicting the minor undressing and showering. In one hidden-camera video,

Henry’s wife encouraged the minor to try on and pose in lingerie. The government

also presented evidence that Henry created 13 screenshot images from those videos

and saved the images in a password-protected file named after the minor, alongside

other files containing child pornography.

      We are not persuaded by Henry’s argument that because the videos only

briefly depict the minor’s nude pubic area, the evidence is insufficient to support

his conviction. Even assuming that the videos are not themselves depictions of

sexually explicit conduct, any rational juror could have viewed the evidence as

sufficient to establish that Henry conspired with his wife to produce such

depictions. See United States v. Johnston, 789 F.3d 934, 937, 940–41 (9th Cir.

2015) (affirming conviction for conspiracy to produce child pornography based on

evidence that the defendant asked his co-conspirator to take photos of nude

children); see also United States v. Sims, 708 F.3d 832, 835 (6th Cir. 2013) (“To

convict [the defendant] of attempted production of child pornography, the

government does not need to prove that the videos of [the minor] were actually

lascivious.”).

      Henry further argues that the evidence was insufficient to show that the


                                            4
hidden cameras and other recovered devices were transported in interstate or

foreign commerce. Because Henry raised that argument for the first time in his

reply brief, we decline to consider it. See United States v. King, 257 F.3d 1013,

1029 n.5 (9th Cir. 2001).

      4.     The district court did not err in denying Henry’s post-trial motions

based on alleged prosecutorial misconduct. Because Henry did not object during

trial, his claim is subject to plain-error review. In his closing argument, the

prosecutor told the jury that Henry’s counsel’s job was to “distract and to deflect

and to give [the jury] alternate facts or argue things that aren’t necessarily what

actually happened.” Assuming, without deciding, that those comments were

improper, the statements were isolated in the context of the entire trial and did not

“seriously affect[] the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Alcantara-Castillo, 788 F.3d 1186, 1191 (9th Cir.

2015) (quoting United States v. Combs, 379 F.3d 564, 568 (9th Cir. 2004)); id. at

1194–95. Henry’s remaining allegations of prosecutorial misconduct lack merit.

      AFFIRMED.




                                            5
