                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                               September 14, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT
                            __________________________

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 08-8097
 v.                                          (D.Ct. No. 2:08-CR-00015-ABJ-1)
                                                         (D. Wyo.)
 CASEY BALLIEU,

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *


Before BARRETT, ANDERSON, and BRORBY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.



      Defendant Casey Ballieu appeals his conviction on grounds the district

court erred in denying both his request for a substance abuser jury instruction

      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
directed at the testimony of two of the government’s witnesses and his motion for

acquittal on grounds the government failed to prove he transmitted a digital

photographic image of child pornography in interstate commerce. We exercise

jurisdiction pursuant to 28 U.S.C. § 1291 and affirm Mr. Ballieu’s conviction.



                              I. Factual Background

      Mr. Ballieu pled not guilty to an indictment charging him with distribution

of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A) and (b)(1).

During his trial, which began on September 8, 2008, the government presented

witness testimony in support of its case against Mr. Ballieu, including the

testimony of Mr. Ballieu’s estranged wife, Viola Ballieu. Mrs. Ballieu testified

that on November 30, 2007, while at her home in Newcastle, Wyoming, she was

communicating by text messages with her husband, who was working in Rifle,

Colorado. During their communications, she received a text message from him

containing a pornographic photograph of a baby girl. 1 On receipt of the

pornographic image, Mrs. Ballieu immediately contacted law enforcement,

showed an officer the image, and later gave her cellular telephone containing the

image to the Newcastle Police Department. At trial, Mrs. Ballieu identified the

pornographic image she received from her husband on November 30, 2007, which

      1
         The issue of whether the digital photographic image is pornographic is
not in dispute nor is it dispositive of this appeal, and therefore we decline to
describe the image transmitted.

                                        -2-
was admitted as Government Exhibit 1-I without objection. During direct

examination, Mrs. Ballieu also admitted she used crystal methamphetamine with

her husband for two months during 2006, but stated she had not used drugs since

2006 and was not using drugs at the time of trial.



      Another government witness, Chrystal Eld, of Rathdrum, Idaho, testified

that in November 2007 she met a man with the username “Metalrod” through a

chat room called “Lifestylers.” After exchanging over one hundred messages

with “Metalrod” through Lifestylers, the two exchanged phone numbers and

continued to communicate through text messaging when “Metalrod” asked her to

take a photograph of her thirteen-month-old daughter in a pornographic manner

and send it to him, and she complied with his request.



      During the trial, Ms. Eld identified the photographic image she took of her

daughter and sent to “Metalrod” on November 2, 2007, as Government Exhibit 1-

I, which was the same pornographic image Mrs. Ballieu previously identified as

receiving from her husband on November 30, 2007. During her direct testimony,

Ms. Eld also admitted to being depressed and using marijuana one year earlier, in

November 2007, and explained she received a grant of immunity from the

government under which she was testifying and that her parental rights to her

daughter were being terminated. Mr. Ballieu’s counsel did not cross-examine

                                         -3-
either Ms. Eld or Mrs. Ballieu on their drug use. Following Ms. Eld’s testimony,

the district court verbally cautioned the jury that her immunized testimony should

be examined and weighed with greater care than someone’s testimony without

such an agreement with the government.



      Special Agent Randall Huff with the Wyoming Internet Crimes Against

Children Task Force also testified at trial, stating that on December 3, 2007, he

received a telephone call from the Newcastle Police Department regarding the

pornographic image admitted as Government Exhibit 1-I. During his

investigation into the transmission of the pornographic image, he was able to

determine “Metalrod” was Mr. Ballieu and verified Mr. Ballieu and Ms. Eld

exchanged multiple text messages with photographic images, including the child

pornography image at issue, which he determined was sent on November 2, 2007.

He explained he made this identification and verified the transmission of the text

messages and photographic images based on a forensics examination of Mr.

Ballieu’s cellular telephone and Mr. Ballieu’s and Ms. Eld’s AT&T telephone

records, including the series of single-frame JPEG-type images Ms. Eld sent to

Mr. Ballieu on November 2, 2007. A portion of the AT&T records on which he

relied, showing numerous transmissions between their cellular telephones on

November 2, 2007, was admitted into evidence.




                                         -4-
      Special Agent Huff also testified that on December 5, 2007, he and another

special agent, Cory Dunne, traveled to Mr. Ballieu’s home in Rifle, Colorado, to

interview him. After informing him of his Miranda rights, Mr. Ballieu verbally

waived those rights. The interview of Mr. Ballieu was audibly recorded, lasted

just over an hour, and was redacted into a fifty-three-minute version admitted into

evidence as Government Exhibit 4. During the redacted fifty-three-minute

interview, Mr. Ballieu stated he did not know who sent him the pornographic

image and that he did not intentionally send it to his wife. In addition, he stated

he was at work in Rifle, Colorado, sitting in his chair in his shop during lunch,

when he mistakenly sent the image to his wife. He also stated he thought his wife

was at her home in Newcastle, Wyoming, when she received it.



                             II. Procedural Background

      During the trial, the district court conducted a “voluntariness hearing,”

without the presence of the jury, for the purpose of establishing whether Mr.

Ballieu received and waived his Miranda rights prior to his interview and to

determine what portions of his interview were audibly recorded. During his

testimony at the hearing, Special Agent Dunne testified as to which portions of

Mr. Ballieu’s audio interview recording had been redacted to remove discussion

of his prior criminal conviction and other unintelligible portions, which resulted

in both the fifty-three-minute version and a shorter six- or seven-minute version.

                                          -5-
Counsel for both parties advised the district court of their stipulation to play the

shorter version to the jury in the courtroom, in the interest of time, but to send the

fifty-three-minute version, previously admitted into evidence as Government

Exhibit 4, with the jury for its deliberations. At no time did the defense object to

admission of Government Exhibit 4 into evidence or to its submission to the jury

for deliberation without playing it in an open court. The district court then

informed the jury of the parties’ stipulation; ultimately, the shorter version was

played in open court, while the longer fifty-three-minute version was sent with

the jury for its deliberations. Because the shorter version was not admitted as

evidence, it is not contained in the record on appeal, and neither party has

represented what portion of the interview it contained.



      At the conclusion of the government’s evidence, Mr. Ballieu offer no

evidence in support of his defense, but moved for acquittal, arguing the

government failed to prove he sent the pornographic image through interstate

commerce. In making this argument, Mr. Ballieu asserted no testimony

established he was in a different state or that the pornographic image went

through interstate commerce. The district court took the issue under advisement,

but only after noting Mrs. Ballieu testified Mr. Ballieu lived in Colorado and Mr.

Ballieu admitted in his interview he was in his shop at work when the image was

sent; the district court stated it believed this constituted sufficient evidence of an

                                           -6-
interstate commerce nexus for the jury to consider. On the following morning,

the district court denied the motion to acquit, explaining Government Exhibit 4,

consisting of the fifty-three-minute interview to be provided to the jury for

deliberation, contained several statements by Mr. Ballieu indicating he sent the

image to Mrs. Ballieu from Colorado on the date in question.



      At a subsequent jury instruction conference, Mr. Ballieu’s counsel

requested the use of proposed Jury Instruction No. 4, which stated:

            The testimony of a drug or alcohol abuser must be examined
      and weighed by the jury with greater care than the testimony of a
      witness who does not abuse drugs or alcohol.

            Xxx and xxx may be considered to be abusers of drugs or
      alcohol.

             The jury must determine whether the testimony of a drug or
      alcohol abuser has been affected by drug or alcohol use or the need
      for drugs or alcohol.

R., Vol. 1 at 67. The district court denied Mr. Ballieu’s request, explaining it was

rejecting the instruction because there was “no evidence of any recent use of

drugs by either of the witnesses, neither the mother of the child who was the

subject of the photograph nor of the ... estranged wife of [Mr. Ballieu].” R., Vol.

3 at 272.



      While the district court rejected Mr. Ballieu’s proposed Jury Instruction


                                         -7-
No. 4, other instructions dealing with the credibility of the witnesses were

provided to the jury, including, in part, the following: “Instruction No. 3. It will

be up to you to decide which witnesses to believe, which witnesses not to believe

and how much, if any, of any witness’s testimony to accept or reject.” R., Vol. 1

at 91.



                                    Instruction No. 30

               You, as jurors, are the sole judges of the credibility of the
         witnesses and the weight their testimony deserves. ...

                 You should carefully scrutinize all of the testimony given, the
         circumstances under which each witness has testified, and every
         matter in evidence which tends to show whether a witness is worthy
         of belief. Consider each witness’s intelligence, motive and state of
         mind, and demeanor and manner while on the stand. Consider the
         witness’s ability to observe the facts to which he or she has testified,
         and whether he or she impresses you as having an accurate
         recollection of these matters. Consider also any relation each
         witness may bear to either side of the case; the manner in which each
         witness might be affected by the verdict; and the extent to which, if
         at all, each witness is either supported or contradicted by other
         evidence in the case.

Id. at 119.

                                    Instruction No. 31

                The testimony of an immunized witness, someone who has
         been told that her testimony will not be used against her in return for
         that cooperation, must be examined and weighed by the jury with
         greater care than the testimony of someone who is appearing in court
         without the need for such an agreement with the government.

               Chrystal Eld is an immunized witness in this case.

                                            -8-
               The jury must determine whether her testimony has been
        affected by self-interest, or by the agreement she has with the
        government, or by her own interest in the outcome of this case, or by
        prejudice against the defendant.

Id. at 121.



        In addition, jury instructions regarding the elements of the crime charged

were provided to the jury, which stated, in part, the government had “the burden

of establishing each of [the] elements by proof beyond a reasonable doubt” and

that:

               In order to sustain its burden of proof for the crime of
        distributing child pornography as charged in the [i]ndictment the
        [g]overnment must prove the following essential elements beyond a
        reasonable doubt:

              1. On or about November 30, 2007;

              2. The [d]efendant, Casey Ballieu;

               3. Did knowingly distribute child pornography, namely a
        digital image...[;]

               4. Said digital image file having been mailed, shipped, or
        transported in interstate commerce, from the State of Colorado to the
        State of Wyoming by means of a cellular telephone.

               If the [g]overnment fails to prove any of these elements by
        proof beyond a reasonable doubt, you should find the [d]efendant not
        guilty.

              If, on the other hand, the Government proves each of the
        elements by proof beyond a reasonable doubt, you should find the
        [d]efendant guilty.


                                          -9-
Id. at 104-05 (emphasis added). Other instructions directed the jury to consider

and evaluate all the evidence received into the record, including the exhibits.



      Following deliberation, the jury found Mr. Ballieu guilty of knowingly

distributing child pornography through interstate commerce. The district court

then sentenced Mr. Ballieu to the minimum statutory term of fifteen years

imprisonment, pursuant to 18 U.S.C. § 2252A(a)(2)(A) and (b)(1). Mr. Ballieu

does not contest his sentence on appeal.



                                  III. Discussion

                                A. Jury Instruction

      On appeal, Mr. Ballieu asserts the district court erred in refusing to give his

proposed jury instruction advising the jury to examine and weigh the testimony of

a drug or alcohol abuser with greater care. In making this assertion, he points out

Ms. Eld testified she was a marijuana user and depressed in November 2007 and

that Ms. Ballieu testified she used crystal methamphetamine in 2006 for

approximately two months. He claims their testimony prejudiced him because the

jurors should have been advised the testimony of drug abusers should be

examined and weighed with greater care than other witnesses who are not

substance abusers. In response, the government argues the district court correctly

refused the instruction because no evidence indicated either witness had a drug

                                           -10-
addiction or even used drugs at the time of trial, but only that they had previously

used drugs. But, even if they had been drug users at the time of trial, the

government argues the district court did not abuse its discretion because it gave

general credibility instructions regarding all the witnesses as well as a specific

immunized witness instruction directed at Chrystal Eld.



      “We review de novo whether, as a whole, the [trial] court’s jury

instructions correctly stated the governing law and provided the jury with an

ample understanding of the issues and applicable standards.” Martinez v.

Caterpillar, Inc., 572 F.3d 1129, 1132 (10 th Cir. 2009); see also Zokari v. Gates,

561 F.3d 1076, 1090 (10 th Cir. 2009). However, we review the district court’s

decision whether to give a particular instruction for an abuse of discretion, and

“reverse only in those cases where we have a substantial doubt whether the jury

was fairly guided in its deliberations.” Martinez, 572 F.3d at 1132 (quotation

marks and citation omitted). “As long as the charge [to the jury] as a whole

adequately states the law, the refusal to give a particular instruction is not an

abuse of discretion.” Zokari, 561 F.3d at 1090 (quotation marks and citation

omitted).



      Having determined our standard of review, we turn to the legal principles

involved with providing a jury with drug abuser or addict instructions. We have

                                         -11-
held that “[a]s a general rule, prudence dictates the giving of an addict instruction

whenever the prosecution has relied upon the testimony of a narcotics addict.”

United States v. Smith, 692 F.2d 658, 661 (10 th Cir. 1982). But, even in cases

where the witness is an addict, we have held the decision regarding whether to

give the drug abuser instruction depends “on the particular facts of each case.”

United States v. Cook, 949 F.2d 289, 294 (10 th Cir. 1991); Smith, 692 F.2d at 661.

Some of the circumstances we consider include whether (1) the drug abuse of the

witness was revealed to the jury; (2) other evidence corroborated the drug

abuser’s testimony; and (3) the jury instructions included a general credibility

instruction as well as instructions requiring special care in weighing and

evaluating certain testimony, such as that of an accomplice, felon, or one who is

testifying under a grant of immunity. See Cook, 949 F.2d at 294-95; Smith, 692

F.2d at 660-61.



      We applied these principles in a similar case to the one presented here in

United States v. Davis, 286 F. App’x 574, 580-81 (10 th Cir. July 31, 2008)

(unpublished op.). While, generally, unpublished opinions are not considered

“valuable precedent,” Davis nevertheless has persuasive value with respect to the

same material issue raised here and assists with our disposition of this appeal. 2

      2
        In this circuit, unpublished orders historically were not considered
binding precedent, except under the doctrines of law of the case, res judicata, and
                                                                      (continued...)

                                         -12-
See 10 th Cir. R. 32.1 and 36.1. In Davis, the defendant requested a drug abuser

jury instruction almost identical to the one requested here. 286 F. App’x at 580-

81. We determined the district court did not abuse its discretion in refusing to

give the instruction because the evidence presented did not indicate the

cooperating witness at issue was abusing drugs at the time of the events of the

case or at the time he testified at trial, but only that he had used drugs two years

prior to the trial. Id. at 581. We held that “[w]hile the drug abuser instruction

should generally be given when a known drug abuser testifies, ... evidence of drug

abuse at some point in the witness’s past does not necessarily establish that the

witness should still [be] considered to be an abuser of drugs such that the

instruction should be given.” Id. Other factors on which we also relied in

determining no abuse of discretion occurred included the fact the district court

provided general witness credibility instructions, it instructed the jury to evaluate

the cooperating witness’s testimony with greater care, and defendant’s counsel

did not press the point of any drug abuse issue in its witness examination. See id.




      2
        (...continued)
collateral estoppel, and therefore, citation to unpublished opinions was not
favored. See 151 F.R.D. 470 (10 th Cir. 1993) (containing General Order of
November 29, 1993). However, under this court’s current rules, and even our
historic treatment of such unpublished orders, an unpublished opinion or order
may be relied on for the purpose of disposing of the issue presented if it has
persuasive value with respect to a material issue in a case and would assist the
court in its disposition. See id.; 10 th Cir. R. 32.1 and 36.1 (2009).

                                         -13-
      In this case, no evidence in the record demonstrates Mrs. Ballieu or Ms. Eld

regularly abused drugs or were otherwise addicts. Instead, Mrs. Ballieu admitted

she used crystal methamphetamine with her husband for two months during 2006,

but stated she had not used drugs since 2006 and was not using drugs at the time

of trial in September 2008. Similarly, Ms. Eld also admitted to using marijuana

one year earlier, during the month of November 2007, and explained the

government was providing her a grant of immunity under which she was

testifying, but no further testimony was elicited establishing she abused drugs or

was using drugs at the time of the 2008 trial. As we stated in Davis, evidence of

drug abuse at some point in the witness’s past does not necessarily establish the

witness is an abuser of drugs for the purpose of providing the jury a drug abuser

instruction. See id. For this reason alone, the district court did not abuse its

discretion in refusing to provide the drug abuser instruction at issue here.



      In addition, the jury in this case was aware of Ms. Eld’s and Mrs. Ballieu’s

prior drug use, including the fact Ms. Eld was using marijuana during the month

that she sent the photographic image at issue. As in Davis, the district court

provided general witness credibility instructions as well as an instruction to

consider Ms. Eld’s immunized testimony with greater care. See id. The general

credibility instructions included, in part, directions for the jury to carefully

scrutinize the circumstances under which each witness testified, each witness’s

                                          -14-
motive and state of mind, and each witness’s ability to observe the facts to which

she testified and her recollection of the matter. These instructions, together with

the immunized testimony instruction and the jury’s knowledge of their prior drug

use, was sufficient to alert the jury as to the degree of care they should give Ms.

Eld’s and Mrs. Ballieu’s testimony. Finally, these two witnesses provided

corroborating evidence regarding the photographic image and its connection to

Mr. Ballieu, which was further corroborated by the forensics investigation

conducted by Special Agent Huff. For these reasons, we conclude the district

court did not abuse its discretion in refusing to give the drug abuser instruction to

the jury, and its refusal to give it did not prejudice Mr. Ballieu.



                          B. Interstate Commerce Element

      Mr. Ballieu continues to argue, as he did in his motion for acquittal, that

the government failed to meet its burden of establishing the pornographic image

at issue was transported in interstate commerce and, on appeal, relies on our

decision in United States v. Schaefer, 501 F.3d 1197 (10 th Cir. 2007), to support

his argument the district court erred in failing to grant his motion for acquittal. In

arguing that the district court erred in its ruling, he argues (1) no testimonial

evidence exists establishing he was in Colorado when he allegedly sent the image

to his estranged wife; (2) the fifty-three-minute audio interview recording was not

played to the jury during the course of the trial and therefore no one knows

                                          -15-
whether the jury listened to it during its deliberations; and (3) the government

failed to offer evidence regarding the location of the cell tower nearest to Rifle,

Colorado.



      “We review the sufficiency of the evidence to support a jury’s verdict and

the denial of [a] motion for judgment of acquittal de novo.” United States v.

Vigil, 523 F.3d 1258, 1262 (10 th Cir.), cert. denied, 129 S. Ct. 281 (2008). “We

ask whether a reasonable jury could find a defendant guilty beyond a reasonable

doubt, viewing the evidence in the light most favorable to the government and

drawing reasonable inferences therefrom.” Id. In conducting this inquiry, we do

not “weigh conflicting evidence nor consider the credibility of witnesses,” but

“simply determine whether the evidence, if believed, would establish each

element of the crime.” United States v. Delgado-Uribe, 363 F.3d 1077, 1081 (10 th

Cir. 2004) (quotation marks and citation omitted).



      Applying these principles, it is apparent the evidence offered at trial

reasonably supported the jury’s finding of guilt beyond a reasonable doubt with

respect to the interstate commerce element. As the district court pointed out,

Government Exhibit 4, consisting of the fifty-three-minute interview provided to

the jury for deliberations, contained several admissions by Mr. Ballieu that he

sent the image to Mrs. Ballieu from Colorado on the date in question and thought

                                         -16-
she was in Wyoming when she received it. In addition, Mrs. Ballieu testified she

was in Wyoming and her husband was in Colorado when she received the image

from him. It is evident a reasonable jury could find Mr. Ballieu guilty beyond a

reasonable doubt on the issue of an interstate nexus when viewing this evidence

in the light most favorable to the government and drawing reasonable inferences

therefrom.



      While Mr. Ballieu relies on our decision in Schaefer to support his claim

that the district court erred in denying his motion for acquittal because the

government failed to carry its burden of proving an interstate nexus, we find

Schaefer distinguishable from the case presented here. In Schaefer, the

government relied solely on the defendant’s use of the internet to prove the

disputed pornographic image traveled through interstate commerce, which we

held was insufficient to satisfy the interstate nexus requirement. See 501 F.3d at

1201, 1205. Here, the government did more than show Mr. Ballieu merely used

his cellular telephone to prove the required interstate commerce element. Instead,

it introduced both (1) the audio recording of Mr. Ballieu admitting he sent the

pornographic image to his wife in Wyoming from his cellular telephone while he

was physically in Colorado; and (2) Mrs. Ballieu’s testimony she was physically

in Wyoming when she received the image from her husband’s cellular telephone

while he was physically in Colorado. Either of these pieces of evidence is

                                         -17-
sufficient to establish the pornographic image traveled from a location in

Colorado to a location in Wyoming. As a result, evidence as to the closest “cell

tower” was unnecessary for the government to carry its burden of proof.



      Regarding the issue of whether the jury listened to the fifty-three-minute

audio recording, it is clear jury deliberations are secret. See Yeager v. United

States, 129 S. Ct. 2360, 2368 (2009). Even so, we can “presume jurors attend

closely to the language of the instructions in a criminal case and follow the

instructions given them.” United States v. Kelly, 535 F.3d 1229, 1238 n.6 (10 th

Cir. 2008) (quoting United States v. Almaraz, 306 F.3d 1031, 1037 (10 th Cir.

2002)), cert. denied, 129 S. Ct. 1392 (2009). Here, the district court instructed

the jury that the government had the burden of establishing each of the elements

of the crime charged by proof beyond a reasonable doubt, including that the

image was transported in interstate commerce from Colorado to Wyoming. It also

instructed the jury to carefully consider the admitted evidence, including the

exhibits. Thus, we presume the jurors followed the court’s instructions, and, in

finding Mr. Ballieu guilty, it is clear the jury either relied on the fifty-three-

minute audio recording of Mr. Ballieu’s interview or credited Mrs. Ballieu’s

testimony, or both. Again, either is sufficient evidence to reach a guilty verdict

on the interstate commerce element.




                                          -18-
      Finally, Mr. Ballieu has not presented any authority, nor are we aware of

any, to support his suggestion his motion for acquittal should have been granted

merely because the fifty-three-minute audio recording was unpublished to the jury

in open court. We find this argument especially disingenuous given Mr. Ballieu

stipulated the fifty-three-minute audio recording would not be played in open

court but, instead, would be provided to the jury for its deliberations. Even if we

somehow discerned an error in its submission to the jury without being played in

open court, Mr. Ballieu, through his stipulation, invited the error he now seeks to

challenge, resulting in his waiver of the issue on appeal. See United States v.

Zubia-Torres, 550 F.3d 1202, 1205 (10 th Cir. 2008) (stating waiver occurs “where

a party has invited the error that it now seeks to challenge, or where a party

attempts to reassert an argument that it previously raised and abandoned below”),

cert. denied, 129 S. Ct. 2034 (2009). Thus, for all of the reasons stated, we

conclude the district court did not err in denying Mr. Ballieu’s motion for

judgment of acquittal.



                                  IV. Conclusion

      Accordingly, we AFFIRM Mr. Ballieu’s conviction.

                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge


                                        -19-
