                                                                            FILED
                            NOT FOR PUBLICATION                              JUN 08 2015

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-30077

              Plaintiff - Appellee,              D.C. No. 4:12-cr-00060-BMM-1

 v.
                                                 MEMORANDUM*
KEITH CLIFFORD CASEY
CUNNINGHAM,

              Defendant - Appellant.


                    Appeal from the United States District Court
                            for the District of Montana
                     Brian M. Morris, District Judge, Presiding

                              Submitted May 8, 2015**
                                 Portland, Oregon

Before: W. FLETCHER and HURWITZ, Circuit Judges and BAYLSON,*** Senior
District Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
              The Honorable Michael M. Baylson, Senior District Judge for the
U.S. District Court for the Eastern District of Pennsylvania, sitting by designation.
      Appellant Keith Clifford “Casey” Cunningham appeals his conviction for

violating 18 U.S.C. § 2251(a), which, as relevant here, criminalizes inducing or

using a child 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.” We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Cunningham argues on appeal that his confrontation right under the Sixth

Amendment was violated because the child victim was not called to testify.

Because Cunningham did not object at trial to the admission of statements that may

have implicated this right, we review for plain error. United States v. Anekwu, 695

F.3d 967, 973 (9th Cir. 2012).

      Cunningham contends that his right to confront the witness against him was

violated because the government did not call the child victim to testify, whether in

Cunningham’s presence or via closed-circuit television. He argues that the victim

was a witness against him because she was present when he allegedly committed

the crime and because her allegations triggered the investigation that ensnared him.

But that is not the legally relevant meaning of “witness.” Rather, a witness for

purposes of the Confrontation Clause is (1) someone who testifies in court or (2)

someone whose testimonial out-of-court statements are admitted at trial to prove

the truth of the matter asserted. See Davis v. Washington, 547 U.S. 813, 821

                                          2
(2006) (citing Crawford v. Washington, 541 U.S. 36, 51 (2004)). The victim was

plainly not the first type of witness and Cunningham has waived the argument that

she was the second type. Cunningham did not argue in his opening brief that the

victim was a witness against him because her testimonial hearsay was introduced at

trial via the testimony of her mother and the investigating officer. Indeed, he does

not mention Crawford at all. Therefore, we will not entertain this argument. See

Paladin Assoc., Inc. v. Mont. Power Co., 328 F.3d 1145, 1164 (9th Cir. 2003).

      Cunningham also contends that the trial court erred by admitting evidence

that he had previously purchased an online video depicting child pornography. We

review evidentiary rulings for abuse of discretion. See United States v. Chea, 231

F.3d 531, 534 (9th Cir. 2000).

      The district court did not abuse its discretion in admitting evidence about

Cunningham’s purchase from primteens.com. Federal Rule of Evidence 404(b)

does not prohibit the introduction of evidence of extrinsic acts that might adversely

reflect on the actor’s character if the evidence bears on a relevant issue, such as

motive, intent, knowledge, and lack of accident. Fed. R. Evid. 404(b)(2). The

website evidence was probative of Cunningham’s intent to sexually exploit the

victim because it tended to show that he has sexual feelings for children and that he

did not inadvertently take sexually explicit photographs of the victim. “Thus, the

                                           3
evidence was probative both of [Cunningham’s] intent and the credibility of his

innocence defense.” United States v. Curtin, 489 F.3d 935, 950 (9th Cir. 2007) (en

banc). In addition, the evidence, which was admitted to prove a material element

of the crime, was similar to the offense charged, was based on sufficient evidence,

and was not too remote in time. See United States v. Ramirez-Robles, 386 F.3d

1234, 1242 (9th Cir. 2004) (explaining the factors used to determine whether

evidence is admissible under Rule 404(b)).

      AFFIRMED.




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