                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-2968
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                               Brian Edward Reynolds

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                   for the Southern District of Iowa - Davenport
                                  ____________

                              Submitted: April 11, 2013
                                Filed: July 11, 2013
                                  ____________

Before LOKEN and GRUENDER, Circuit Judges, and WIMES,1 District Judge.
                         ____________

WIMES, District Judge.

       Brian Edward Reynolds was charged with receiving child pornography in
violation of 18 U.S.C. § 2252 (count two), enticement of a minor to engage in illicit


      1
      The Honorable Brian C. Wimes, United States District Judge for the Eastern
and Western Districts of Missouri, sitting by designation.
sexual activities in violation of 18 U.S.C. § 2422 (count three), and two counts of
production of child pornography involving separate victims in violation of 18 U.S.C.
§ 2251 (counts one and four). Prior to trial, the government dismissed count one for
the production of child pornography involving A.G. After a five-day jury trial, a jury
found Reynolds guilty of receiving child pornography, enticement of a minor to
engage in illicit sexual activities, and production of child pornography. The district
court2 sentenced Reynolds to 384 months in prison.

       Reynolds appeals the conviction, arguing the district court erred by: (1) failing
to sever counts two and three from count four; (2) admitting other bad acts evidence
involving his niece and girlfriend; (3) limiting Reynolds’ cross-examination of A.G.;
and (4) admitting Reynolds’ post-arrest statements. Reynolds further challenges the
sentence he received, arguing the court abused its discretion by imposing an
enhancement under § 2A3.1 of the United States Sentencing Guidelines Manual. In
considering these issues, we view the evidence in the light most favorable to the jury’s
verdict. U.S. v. Smith, 573 F.3d 639, 657 (8th Cir. 2009). We affirm.

                                   I. Background

       On February 1, 2009, the Muscatine, Iowa Police Department was advised
A.G., a thirteen-year-old girl, may have been sexually abused by a thirty-four-year-old
man named Brian Reynolds. Reynolds knew A.G. through his daughter, who was a
classmate of A.G. In executing a search warrant of Reynolds’ residence on February
5, 2009, Detective Tomas Tovar of the Muscatine Police Department and Special
Agent James E. McMillan of the Federal Bureau of Investigation interviewed
Reynolds.


      2
        The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.

                                          -2-
       Following the issuance of the criminal complaint, Reynolds was arrested and
interrogated on March 28, 2011. Detective Tovar and Special Agent McMillan read
Reynolds his Miranda rights from a form entitled “Advice of Rights” and Reynolds
signed this form before the interrogation began. During the interrogation, Reynolds
made multiple admissions. Detective Tovar acknowledged that as the interrogation
neared its end, Reynolds was “starting to make comments like” he wanted to end the
interrogation. Prior to trial, Reynolds moved to suppress his post-arrest statements
arguing he did not knowingly and intelligently waive his Miranda rights and his
statements were not voluntarily given. The district court held an evidentiary hearing,
concluded Reynolds was aware of his Miranda rights at the time he made the post-
arrest statements, and denied Reynolds’ motion.

      Reynolds also filed a pretrial motion pursuant to Rule 412 of the Federal Rules
of Evidence seeking to offer evidence that A.G. had produced pornographic videos.
Reynolds sought to admit this evidence in order to show that someone other than
Reynolds produced the videos. After an evidentiary hearing, the district court denied
Reynolds’ motion. At trial, the district court denied Reynolds the opportunity to
cross-examine A.G. about these two videos, concluding that the evidence had minimal
relevance and that allowing cross-examination about the videos would amount to
impeachment on a collateral matter, due to the government’s dismissal of the child
pornography production charge involving A.G.

      During trial, the government presented evidence of Internet exchanges between
Reynolds and a seventeen-year-old girl, C.K. C.K. testified she sent five pornographic
photographs to a person she knew as Brian Reynolds in exchange for photographs of
him. Also at trial, Reynolds’ girlfriend, Autumn Veach, testified about meeting
Reynolds over the Internet when she was seventeen years old. Before the government



                                         -3-
rested, Reynolds’ niece, J.S., testified that Reynolds came to her room and
inappropriately touched her when she was approximately eleven years old.

       Following Reynolds’ convictions, the district court sentenced Reynolds to 384
months in prison. In arriving at this sentence, the court found Reynolds used force
against A.G. when he engaged in inappropriate sexual conduct with her. Thus, the
court applied a four-level enhancement pursuant to United States Sentencing
Guidelines Manual § 2G1.3(c)(3). On January 30, 2009, Reynolds picked up A.G. in
a car, drove a short distance, and parked the car. Reynolds touched A.G.’s chest and
genitals both over and beneath her clothes. Even though A.G. did not attempt to fight
him off, she resisted Reynolds’ advances by pushing his hands away. When he did
not stop, she “gave up,” believing it “could have gotten a lot worse.” Despite A.G.’s
resistance, Reynolds proceeded to put his mouth on A.G.’s genitals. He then said, “I
did something for you, now you have to do something for me” and pulled down his
pants to expose himself. Reynolds pulled A.G. toward his genitals with his hand and
arm behind her back. They engaged in oral sex, and Reynolds eventually drove A.G.
back to where he had picked her up. Then, A.G. walked home.

                                II. Motion to Sever

       We review the district court’s denial of a motion to sever for an abuse of
discretion, and we will reverse only when that abuse of discretion results in severe or
clear prejudice. U.S. v. Payton, 636 F.3d 1027, 1036 (8th Cir. 2011) (citation
omitted); U.S. v. Darden, 70 F.3d 1507, 1526 (8th Cir. 1995) (citations omitted).
“Severe prejudice occurs when a defendant is deprived of an appreciable chance for
an acquittal.” U.S. v. Brown, 653 F.3d 656, 662 (8th Cir. 2011); see Payton, 636 F.3d
at 1037.




                                         -4-
       Prior to trial, Reynolds moved to sever count four, involving C.K., from the
counts involving A.G, counts two and three.3 Reynolds argues the district court
abused its discretion in denying his motion to sever and improperly joining the counts
because they were not of similar character and could not be part of a common scheme
or plan. Further, Reynolds argues the court failed to examine whether he would be
prejudiced by joining the counts before it considered whether the separate evidence
would have been admissible in separate trials.

       When Reynolds moved to sever, the district court had to first determine whether
joinder was proper under Rule 8 of the Federal Rules of Criminal Procedure.4 U.S.
v. Ruiz, 412 F.3d 871, 886 (8th Cir. 2005). The court properly determined counts two,
three, and four “are of the same or similar character.” The charges of enticement of
a minor to engage in illicit sexual activities, receiving child pornography, and
production of child pornography “are of the same or similar character” because they
show Reynolds’ predisposition to abnormal sexual attraction and tend to rebut the
claim that Reynolds was trapped into receiving child pornography. This abnormal
sexual attraction is not limited to Reynolds’ production and possession of child
pornography, but also includes his desire to engage in sexual activities with female
minors.

     Further, the charges also “constitute part of a common scheme or plan” because
Reynolds used online activity as part of a common scheme or plan to contact female
minors, obtain pornographic photographs of them, and entice one female minor to

      3
          The government dismissed count one.
      4
        “The indictment or information may charge a defendant in separate counts
with 2 or more offenses if the offenses charged - whether felonies or misdemeanors
or both - are of the same or similar character, or are based on the same act or
transaction, or are connected with or constitute parts of a common scheme or plan.”
FED. R. CRIM. P. 8(a).

                                         -5-
engage in illicit sexual activities. Reynolds’ method of choice for fulfilling his
abnormal sexual attraction was the Internet. Reynolds enticed A.G. to engage in illicit
sexual activities by communicating with her over the Internet and receiving
pornographic photographs of her by the same means. Similarly, C.K. communicated
and exchanged pornographic photographs over the Internet with a person she knew
as Brian Reynolds.

       Once the district court determined joinder was proper, the court had the
discretion to sever the counts if the joinder appeared to prejudice Reynolds pursuant
to Rule 14 of the Federal Rules of Criminal Procedure. See FED. R. CRIM. P. 14(a);
see also Ruiz, 412 F.3d at 886. “[A] defendant cannot show prejudice when evidence
of the joined offense would be properly admissible in a separate trial for the other
crime.” U.S. v. Erickson, 610 F.3d 1049, 1055 (8th Cir. 2010) (citation omitted).

       Reynolds argues he was prejudiced because A.G.’s credibility, which was
tarnished on cross-examination, was then rehabilitated by C.K.’s testimony. This
contention fails because A.G.’s and C.K.’s testimony would be properly admissible
in separate trials on each offense to establish Reynolds’ method of intentionally using
the Internet to contact female minors and solicit pornographic photographs. Even if
we found Reynolds was prejudiced as he contends, this prejudice did not “appear”
until such testimony was elicited during trial. Rules 8 and 14 are to be liberally
construed in favor of joinder, Ruiz, 412 F.3d at 886 (citing Darden, 70 F.3d at 1526),
and the district court did not abuse its discretion in denying the severance of counts
two and three from count four. We affirm on this issue.

                           III. Prior Bad Acts Evidence

       Reynolds challenges two evidentiary rulings from his trial. First, he argues the
district court improperly admitted character evidence of the prior incident involving


                                         -6-
J.S. and Reynolds. Second, he claims the district court improperly admitted evidence
about his relationship with Autumn Veach. We review both evidentiary rulings for
an abuse of discretion, “and will disturb a district court’s decision only when such
evidence clearly had no bearing on the case and was introduced solely to prove the
defendant’s propensity to commit criminal acts.” U.S. v. Franklin, 250 F.3d 653, 658
(8th Cir. 2001) (citation omitted).

                                A. Evidence of J.S.

       Evidence of prior bad acts is generally not admissible to prove a defendant’s
character or propensity to commit a crime. FED. R. EVID. 404(b). However, Congress
altered this rule in sex offense cases by adopting Rules 413 and 414 of the Federal
Rules of Evidence. Rule 414 specifically provides for the admissibility of prior bad
acts involving child molestation.5 If relevant, such evidence is admissible unless its
probative value is “substantially outweighed” by one or more of the factors
enumerated in Rule 403 of the Federal Rules of Evidence, including “the danger of
unfair prejudice.” U.S. v. Coutentos, 651 F. 3d 809, 819 (8th Cir. 2011) (citation
omitted).

       Reynolds argues the district court erred in finding a preponderance of evidence
showed he molested J.S. since the State dismissed the charge against him involving
J.S. We disagree. The Muscatine County Attorney’s dismissal of the case due to
“anticipat[ed] problems of proof fatal to the prosecution” does not necessarily mean
the charge was dismissed for lack of probable cause to proceed to trial. The State may
dismiss a matter for a variety of reasons, most of which are discretionary. Therefore,

      5
        “In a criminal case in which a defendant is accused of child molestation, the
court may admit evidence that the defendant committed any other child molestation.
The evidence may be considered on any matter to which it is relevant.” FED. R. EVID.
414(a).

                                         -7-
this dismissal is not necessarily relevant to whether Reynolds molested J.S.
Moreover, the jury was instructed not to speculate on the state court charge.

       Reynolds further argues any unfair prejudice was compounded when the district
court precluded him from introducing evidence showing all charges related to the J.S.
incident had been dismissed. “Rule 403 is concerned only with unfair prejudice, that
is, an undue tendency to suggest decision on an improper basis.” U.S. v. Yellow, 18
F.3d 1438, 1442 (8th Cir. 1994) (citation omitted). J.S.’s testimony is prejudicial to
Reynolds for the same reason it is probative; it tends to prove Reynolds’ propensity
to molest children. Because propensity evidence is admissible under Rule 414, the
admission of J.S.’s testimony did not result in any unfair prejudice to Reynolds.
Further, when Congress enacted Rule 414, it expressly rejected imposing any time
limit on the admission of prior sex offense evidence; therefore, it is irrelevant that the
J.S. incident occurred in 2002. See 140 CONG. REC. H8, 992 (daily ed. Aug. 21, 1994)
(statement of Rep. Molinari) (“evidence of other sex offenses by the defendant is often
probative and admitted, notwithstanding very substantial lapses of time in relation to
the charged offense or offenses.”). For these reasons, we find the district court did not
abuse its discretion in admitting evidence of the incident involving J.S.

                           B. Evidence of Autumn Veach

       The district court properly admitted evidence of Reynolds’ relationship with
Autumn Veach. Reynolds argues this evidence was impermissible propensity
evidence under Rule 404(b) and failed to meet the requirements for admission under
Rules 413 and 414. The government argues Reynolds failed to contemporaneously
object when Veach was questioned about the circumstances under which she met
Reynolds. The government argues, thus, the Court should review the admission of
this evidence only for plain error. Under this standard, Reynolds must demonstrate:
(1) there was an error that was not affirmatively waived; (2) that error was “plain,”


                                           -8-
meaning clear or obvious; (3) that error affects his substantial rights; and (4) that error
“seriously affects the fairness, integrity or public reputation of judicial proceedings.”
U.S. v. Johnson, 688 F.3d 444, 447 (8th Cir. 2012) (citations omitted).

       Rule 404(b) “excludes evidence of specific bad acts used to circumstantially
prove that a person has a propensity to commit acts of that sort.” U.S. v. Johnson, 439
F.3d 884, 887 (8th Cir. 2006). However, such evidence is not excluded under Rule
404(b) if it is probative of the crime charged, and we will only find error if the district
court abused its discretion. Id. (citations omitted).

             Other acts evidence is admissible under Rule 404(b) if it is
             1) relevant to a material issue raised at trial, 2) similar in
             kind and close in time to the crime charged, 3) supported by
             sufficient evidence to support a jury finding the defendant
             committed the other act, and 4) its probative value is not
             substantially outweighed by its prejudicial value.

Id. (citation omitted). “[T]he district court has broad discretion to admit evidence of
other crimes or bad acts under [Rule] 404(b) and its decision will be overturned only
when it is clear that the evidence had no bearing on the case.” U.S. v. Campa-Fabela,
210 F.3d 837, 840 (8th Cir. 2000) (citation omitted).

       Even though Reynolds and Veach met in 2004, Veach’s testimony regarding
the circumstances of their relationship was relevant and similar to how Reynolds used
the Internet to meet underage females. The district court was within its discretion to
determine the probative value of this evidence was not outweighed by its prejudicial
effect under Rule 403. Therefore, we find no abuse of discretion in the district court’s
decision to admit Veach’s testimony.



                                           -9-
                              IV. Sixth Amendment

      Reynolds argues the district court violated his rights under the Confrontation
Clause of the Sixth Amendment by preventing him from cross-examining A.G. about
the two pornographic videos seized from her computer. We disagree.

       “We review evidentiary rulings regarding the scope of cross-examination for
an abuse of discretion, except where the Sixth Amendment confrontation clause is
implicated, and then our review is de novo.” U.S. v. Jewell, 614 F.3d 911, 920 (8th
Cir. 2010) (citation omitted).

             A primary interest secured by the Confrontation Clause is
             the right of cross-examination. The opportunity to expose
             “possible biases, prejudices, or ulterior motives” of a
             witness, as “they may relate directly to the issues or
             personalities in the case at hand,” is one important function
             of the right to confront witnesses. Thus, the Confrontation
             Clause may require the admission of certain evidence
             otherwise excluded by the rules of evidence, but it is clear
             that not all evidence that is “the least bit probative of
             credibility” must be admitted.

U.S. v. Tail, 459 F.3d 854, 860 (8th Cir. 2006) (citations omitted).

       The district court allowed Reynolds to question A.G. about whether she lied to
law enforcement regarding who asked her to photograph herself. The district court,
however, did not allow Reynolds to question A.G. about the two pornographic videos
she produced. We find no violation under the Confrontation Clause because Reynolds
was able to elicit testimony from A.G. demonstrating she had dishonestly represented


                                         -10-
to law enforcement that the pornographic photographs at issue were taken prior to
A.G. meeting Reynolds. The evidence of the pornographic videos had limited
probative value and was, therefore, properly excluded, because A.G.’s credibility was
undermined by her testimony on cross-examination and the production of child
pornography charge involving A.G. was previously dismissed. The fact that A.G.
produced pornographic videos prior to meeting Reynolds was irrelevant and
immaterial in exposing any of A.G.’s possible biases, prejudices, or ulterior motives.

       Finding no constitutional violation, we turn our review to whether the district
court abused its discretion in excluding the evidence under the Federal Rules of
Evidence. The district court properly ruled such evidence was inadmissible under
Rule 412 of the Federal Rules of Evidence because the videos were offered to prove
A.G. engaged in sexual behavior other than her behavior with Reynolds. We affirm
on this issue.
                               V. Fifth Amendment

      Reynolds argues on appeal the district court violated his Fifth Amendment right
to remain silent when it admitted his post-arrest statements. We disagree.

       Reynolds argues the district court should have suppressed his post-arrest
statements because Detective Tovar and Special Agent McMillan failed to cease the
interrogation once Reynolds was “starting to make comments like” he wanted to end
the interrogation. However, Reynolds failed to raise this argument with the district
court. Prior to trial, Reynolds moved to suppress his statements on different grounds,
arguing such statements were not made knowingly, intelligently, and voluntarily.
Pursuant to Rule 12(e) of the Federal Rules of Criminal Procedure, a defendant waives




                                        -11-
any defense or objection regarding the suppression of evidence that was not raised
before trial.6

             Federal Rule of Criminal Procedure 12(b)(3)(C) and (e)
             provides that motions to suppress evidence must be raised
             before trial or are waived, and the waiver provision “applies
             not only to the failure to make a pretrial motion, but also to
             the failure to include a particular argument in the motion.”

U.S. v. Spotted Elk, 548 F.3d 641, 656 (8th Cir. 2008) (citation omitted). Because
“waived claims are unreviewable on appeal,” U.S. v. Booker, 576 F.3d 506, 511 (8th
Cir. 2009), Rule 12(e) precludes appellate review of Reynolds’ argument to suppress
his post-arrest statements. See U.S. v. Green, 691 F.3d 960, 963-64 (8th Cir. 2012).
We affirm on this issue.

                           VI. Sentencing Enhancement

      We review the district court’s factual findings underlying the imposition of a
sentencing enhancement for clear error and its application of the sentencing guidelines
de novo. Johnson, 688 F.3d at 447 (citations omitted).

      When a defendant is convicted of an offense involving a minor, the applicable
sentencing guideline is § 2A3.1 if the offense involved conduct described in 18 U.S.C.
§ 2241 or § 2242. U.S. SENTENCING GUIDELINES MANUAL § 2G1.3(c)(3) (2012). A
person has committed “aggravated sexual abuse” if he or she “knowingly causes
another person to engage in a sexual act: (1) by using force against that other person;

      6
        “A party waives any Rule 12(b)(3) defense, objection, or request not raised
by the deadline the court sets under Rule 12(c) or by any extension the court provides.
For good cause, the court may grant relief from the waiver.” FED. R. CRIM. P. 12(e).

                                         -12-
or (2) by threatening or placing that other person in fear that any person will be
subjected to death, serious bodily injury, or kidnapping . . . .” 18 U.S.C. § 2241
(2013). The element of force is satisfied by showing: (a) physical force sufficient to
overcome, restrain, or injure a person; or (b) the threat of harm sufficient to coerce or
compel submission by the victim. U.S. v. Fire Thunder, 908 F.2d 272, 274 (8th Cir.
1990). A person has committed “sexual abuse” if he or she “knowingly: (1) causes
another person to engage in a sexual act by threatening or placing that other person
in fear (other than by threatening or placing that other person in fear that any person
will be subjected to death, serious bodily injury or kidnapping) . . . .” 18 U.S.C. §
2242 (2013).

       Reynolds argues he did not restrain A.G. and, thus, did not use sufficient force
for the court to apply § 2A3.1. We disagree. The district court did not clearly err in
finding Reynolds used force against A.G. in its application of § 2241.

        Moreover, if Reynolds’ conduct did not satisfy the element of force, the district
court did not err in applying the sentencing guidelines. We find Reynolds knowingly
caused A.G. to engage in a sexual act by placing her in fear when he picked her up,
drove to an isolated place, did not stop his sexual advances after her initial efforts to
resist, and told her to do something for him. Under these circumstances, we find §
2A3.1 is also applicable pursuant to § 2242. We affirm on this issue.

      The judgment of the district court is affirmed.
                     ______________________________




                                          -13-
