                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4246



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


JAMES A. REIGLE, JR.,

                                              Defendant - Appellant.


Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District Judge.
(1:05-cr-00262-MJG)


Submitted:   May 14, 2007                     Decided:   May 30, 2007


Before WILLIAMS, MOTZ, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Joseph Murtha, MILLER, MURTHA & PSORAS, LLC., Lutherville,
Maryland, for Appellant.      Rod J. Rosenstein, United States
Attorney, Tonya Kelly Kowitz, Andrew G. W. Norman, Assistant United
States Attorneys, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             On August 18, 2005, James Reigle, Jr. was charged in a

six count superseding indictment with conspiracy to transport, ship

and   possess   visual     depictions   of    minors   engaged   in   sexually

explicit conduct, in violation of 18 U.S.C.A. § 2252(a)(1) and

(b)(1) (West 2000 and Supp. 2006) (Count One); transporting visual

depictions of minors engaged in sexually explicit conduct, in

violation of 18 U.S.C.A. § 2252(a)(1) (Counts Two and Three);

sexually exploiting minors for the purpose of producing visual

depictions thereof, in violation of 18 U.S.C.A. § 2251(a)(1) and

(b)(1) (West 2000 and Supp. 2006) (Counts Four and Five); and

possession of visual depictions of minors engaged in sexually

explicit conduct, in violation of 18 U.S.C. § 2252(a)(4)(B) (Count

Six).     Counts Two through Six also alleged aiding and abetting the

charged offenses, in violation of 18 U.S.C. § 2 (2000).

             Reigle’s jury trial began on November 28, 2005.                At

trial, Thomas Evered testified that he met Reigle on the internet

in 1997.      Evered eventually traveled to Pennsylvania with his

desktop    computer   to   trade   child     pornography   collections   with

Reigle.    Reigle had photographs of SH, SH’s younger, nine-year-old

brother AH, and another boy, SB, in his collection.*             Evered also

testified that during this trip Reigle had sent a video depicting



      *
      All boys in this opinion are referred to by their initials as
they were at trial.

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the three boys engaged in sexually explicit conduct to a friend who

had copied it and made digital clips that could be traded on the

internet.    In 1998, Evered became an over-the-road truck driver.

Evered    testified    that   he    always    kept    his    child      pornography

collection in his truck with him, and that his collection included

images he got from Reigle.         Reigle was aware of these facts.

            On November 23, 1999, Reigle was arrested on charges of

child molestation.      On September 23, 2002, Reigle reported to the

Federal     Correctional      Institution       in     Cumberland,        Maryland

(hereinafter “FCI Cumberland”).              At some point, Reigle called

Evered    from   FCI   Cumberland    and     asked   him    to   copy    his   child

pornography collection onto CDs and keep constant possession of the

CDs so that he would have no trouble getting his collection back

upon his release. Evered testified that he retrieved Reigle’s hard

drive and approximately thirty-five CDs and maintained them at all

times on his truck. Evered further testified that he traveled into

Maryland on November 18, 2002, and March 4, 2003, while driving his

tractor-trailer rig.      On each occasion, Evered had his laptop with

all of the pornographic images of AH, SH, and another boy, D, as

well as the videos of AH, SH, and SB.

            At trial AH and SH also testified.              They testified as to

how they met Reigle.      AH testified that Reigle taped him engaged in

sexual activity with SB and SH, identified the videos presented by

the Government, and testified that Reigle made the videos. AH also


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identified himself in photographs that have come to be known as the

“Anthony Collection.”          SH testified that Reigle photographed him

and directed him to photograph Reigle and AH engaged in sexual

acts.   SH also identified various Government exhibits including a

photograph and two videos.

            The Government also introduced the testimony of SB, JB,

and TB, who were molested by Reigle.                 SB identified Reigle as the

adult male in two photographs depicting an adult male with a

partially   obscured      face     performing        fellatio   on   a    minor.    JB

testified as to how Reigle molested him. JB also identified Reigle

in the same photos shown to SB.           Finally, TB testified as to how he

met Reigle and how Reigle molested him.

            At    trial      the   Government         introduced     evidence      that

photographs from the “Anthony Collection” were found on a computer

in Edgewater, Maryland.               Also, Special Agent Kathleen Kornek

downloaded from a computer in Texas pictures from the “Anthony

Collection”      and   two    video    clips    to    a   computer   in    Calverton,

Maryland.

            Reigle was ultimately convicted on all six counts.                       At

sentencing,      the   district       court    dismissed     Count   Six    based   on

Reigle’s motion for acquittal due to lack of venue.                  The court then

sentenced Reigle to life imprisonment on Counts Four and Five and

forty years on Counts One, Two, and Three.                   All sentence were to

run concurrently.            Reigle timely appealed, alleging that the


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district court erred in not granting his motion for acquittal based

on improper venue for each count in the indictment and that the

court erred in admitting the testimony of SB, JB, and TB.

            The prosecution bears the burden of proving venue by a

preponderance of the evidence, and where, as here, a defendant is

charged with multiple crimes, venue must be proper on each count.

United States v. Ebersole, 411 F.3d 517, 524 (4th Cir. 2005).     In

determining whether the government has established venue by a

preponderance of the evidence, the evidence must be viewed in the

light most favorable to the government.     United States v. Burns,

990 F.2d 1426, 1437 (4th Cir. 1993)

            Count One of the indictment alleged that Reigle conspired

with Evered to transport and ship in interstate commerce visual

depictions of minors engaged in sexually explicit conduct and to

possess such depictions.    Venue was proper in Maryland for Count

One as three overt acts in furtherance of the conspiracy occurred

in Maryland.    Pinkerton v. United States, 328 U.S. 640, 646-47;

United States v. Snead, 527 F.2d 590 (4th Cir. 1975).         Reigle

entered the conspiracy while in Maryland by calling Evered from FCI

Cumberland, and Evered twice transported Reigle’s collection into

Maryland.

            Venue in Maryland was also proper for Counts Two and

Three as Reigle conspired with Evered and aided his transportation

of the child pornography.    United States v. Kibler, 667 F.2d 452,


                                - 5 -
455   (4th   Cir.    1982).      On   two   dates,      Evered    possessed    child

pornography at Reigle’s request.                Reigle thereby aided Evered’s

interstate transportation of child pornography.

             Finally, venue for Counts Four and Five was proper in

Maryland.     Reigle created the visual depictions of his victims in

his   home   in    Pennsylvania.        Several    of    these    depictions    were

discovered on a computer at a home in Edgewater, Maryland on May 5,

2004. The Government established that these images were downloaded

from the internet onto the computer.               Thus, venue for Count Four

was proper.       Also, Special Agent Kathleen Kornek downloaded child

pornography created in Pennsylvania by Reigle from a computer in

Texas. Kornek’s downloading in Maryland made venue in Maryland for

Count Five appropriate.

             Additionally,      the     district     court   properly    admitted

evidence of Reigle’s molestation of other children.                   Rule 404(b)

decisions by the district court are discretionary and will not be

overturned unless arbitrary and irrational.                      United States v.

Powers, 59 F.3d 1460, 1464 (4th Cir. 1995).                      We find that the

testimony of SB, JB, and TB at issue was admissible both as

intrinsic evidence and as evidence of Reigle’s identity and motive.

             Count   Five     charged    Reigle    with   production    of     child

pornography.        SB testified that he appeared in the video that

formed the basis for Count Five and that he engaged in genital to

anal sex with another minor in the video at Reigle’s direction.


                                        - 6 -
Reigle’s molestation of SB was therefore inextricably intertwined

with the creation of the video that was subsequently downloaded by

the FBI.   United States v. Chin, 83 F.3d 83, 87-88 (4th Cir. 1996).

           Also, the testimony of SB, JB, and TB was properly

admitted   to   establish   Reigle’s   identity.   SB,   JB,   and   TB’s

testimony corroborated AH and SH’s testimony and established Reigle

as the person who created the child pornography.          Finally, the

probative value of the testimony of SB, JB, and TB was not

substantially outweighed by unfair prejudice to Reigle. See United

States v. Boyd, 53 F.3d 631, 637 (4th Cir. 1995).

           As the district court did not err in admitting the

testimony of SB, JB, and TB or in denying Reigle’s motion for

judgment of acquittal, we affirm the district court’s judgment. We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and

argument would not aid the decisional process.



                                                               AFFIRMED




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