                                                     NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 16-3941
                                      _____________

                            UNITED STATES OF AMERICA

                                              v.

                                 CHRISTOPHER G. LEE,
                                                  Appellant
                                   _______________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                               (D.C. No. 4-14-cr-00254-001)
                      District Judge: Honorable Matthew W. Brann
                                    _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    June 15, 2017

           Before: SMITH, Chief Judge, JORDAN, and KRAUSE, Circuit Judges.

                              (Opinion Filed: July 12, 2017)
                                   _______________

                                        OPINION*
                                     _______________

JORDAN, Circuit Judge.

       Christopher Lee supervised high school aged minors who volunteered as docents

at the Boal Mansion Museum in Boalsburg, Pennsylvania. After one of the young


       *
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
docents accused him of sexual assault, the police obtained a search warrant for the Boal

Mansion, where Lee resided. The search ultimately led to the acquisition of additional

search warrants which uncovered many images of the young docents cropped to focus on

their genitals and thousands of images of child pornography evidently downloaded from

the internet. Lee was convicted of receiving and possessing child pornography, sexual

exploitation of children, and, because of actions he took after his arrest, attempted

obstruction of justice.

       On appeal, Lee argues that the state magistrate who issued a warrant to search for

child pornography did not have probable cause and therefore the evidence against him

should have been excluded. He also argues that the prosecution failed to prove that he

intended to produce sexually explicit images when he photographed the minors.

Additionally, he claims that it was unfairly prejudicial for the District Court to allow the

jury to hear certain sexually explicit stories that were found on Lee’s computer. Finally,

he argues that there was insufficient evidence that he had taken a substantial step towards

the obstruction of justice. All of Lee’s arguments lack merit, and we will, therefore,

affirm the District Court’s rulings in all respects.

I.     Facts1

       Lee operated the Boal Mansion Museum, and, as noted, he invited young people to

work there as docents. The teenagers, usually boys, would live at the Mansion during

       1
        Because Lee challenges the sufficiency of the evidence supporting his
conviction, we “view the evidence in the light most favorable to the government[.]”
United States v. Rosario, 118 F.3d 160, 163 (3d Cir. 1997).


                                               2
their time as volunteers. In June 2014, police officers from the neighboring town of State

College received a report of an indecent assault. A 17-year-old who had traveled to

Boalsburg to participate in the docent program alleged that Lee had attempted to touch

his genitals and entice him to engage in sexual contact. The youth claimed that, in

preparation for those advances, Lee played a video on his laptop computer that included

“weird music” that may have contained a “relaxation message” or been “hypnotic.”

(App. at 79, 81.) Based on those allegations, State College Police Officers acquired

warrants to search Boal Mansion and seize Lee’s electronic devices. They seized two

cell phones, a laptop computer, a desktop computer, a portable hard drive, and a flash

drive, all belonging to Lee. The officers subsequently requested and were granted a

warrant to search the contents of Lee’s laptop in order to find the video recording as well

as any communications between Lee and the youth’s parents planning for his

participation in the docent program.

       A member of the Computer Forensics Unit of the Pennsylvania Attorney

General’s Office searched the laptop and found the video that had been described. In the

process, he also came across a video that depicted a naked and masturbating male who

appeared to be under the age of eighteen. The examination of the computer stopped

while the State College Police received another warrant to search the electronic devices

for child pornography and related files. The application for the search warrant included a

screenshot from the pornographic video. The warrant was granted and the search

uncovered additional child pornography. More search warrants, acquired in conjunction

with investigative efforts by the FBI, led to the examination of additional devices,

                                             3
including an external hard drive, another portable hard drive, and several thumb drives.

In total, the police seized eight devices containing sexual content involving minors, such

as thousands of graphic images of prepubescent boys and lists of websites known for

child pornography.

       Some of the devices included photographs and videos that Lee had taken of the

teenagers participating in the docent program. Lee had edited the images to focus on the

children’s genitals, buttocks, or pubic areas. For instance, one of the images shows a

young man “getting out of the pool with his legs spread apart and wearing a bathing

suit[.]” (App. at 511.) The image is cropped to focus on his crotch and “[h]is genitalia is

evident beneath the clothing[.]” (Id.)

       In addition to the images, the police found 26 sexually explicit stories featuring

young boys. Lee placed images into the narratives to illustrate the stories. Some of the

stories were illustrated with pornographic images of children that were not personally

known to Lee. Other stories were illustrated with the cropped images of the youth from

the docent program. The narratives were created under the computer user name of

“Christopher Lee.” The documents were comingled with Lee’s personal documents and

photos and used the same password for access.

       Lee was arrested and charged with crimes related to the sexual exploitation of

minors. While incarcerated, he made a series of phone calls to his cousin. Lee evidently

got frustrated and asked the cousin to retrieve Lee’s cell phone from the FBI and to

contact an individual who could “wipe” the data from the phone. (App. at 965a, 966a,

971a.) When the cousin did not do so, Lee asked the cousin to give him the contact

                                             4
information for the individual so that he could make that request himself. Despite his

efforts, Lee was unsuccessful in getting the data on the phone deleted.

       In total, the grand jury charged Lee with eight offenses, though only four are

relevant to this appeal: receipt of child pornography in violation of 18 U.S.C.

§ 2252A(a)(2); possession of child pornography in violation of 18 U.S.C.

§ 2252A(a)(5)(B); sexual exploitation of children, with regard to the cropped images that

Lee produced, in violation of 18 U.S.C. § 2251(a); and attempting to obstruct justice by

tampering with evidence in violation of 18 U.S.C. § 1512(c)(1).2

       Lee filed a motion to suppress the evidence seized from his electronic devices,

claiming that the application for a warrant to search the electronic devices for child

pornography did not provide a basis for finding probable cause. The District Court

denied Lee’s motion. Lee also filed a motion in limine seeking to prevent the sexual

narratives from being read to the jury or at least to have them significantly redacted

before the jury could hear them. The District Court refused to redact or exclude the three

narratives selected by the government for presentation to the jury. In the Court’s view,

“[t]he narratives and images of children are … closely bound in both logical and

proximate terms” and the narratives would provide the jury with “highly probative

insights into [Lee’s] intent, knowledge, and absence of a mistake[.]” (App. at 1025

(relying on Rule 404(b)(2)).) At trial, the government presented the selected narratives to

       2
        Two counts stemming from the alleged molestation of the 17-year-old student
were severed and the government moved to dismiss those counts before they could be
brought before a jury. Two additional counts relating to the alleged sexual assault of
another minor were also dismissed at the government’s request.

                                             5
the jury. Lee was convicted on all the counts that went to the jury. He then filed this

timely appeal.

II.    Discussion3

       Lee raises four challenges to his convictions. We take them in the following

order: First, he argues that the evidence acquired from his electronic devices should have

been suppressed as the result of an unlawful search. Next, he argues that there was

insufficient evidence to support his conviction for the sexual exploitation of minors. He

also argues that the District Court erred in allowing the jury to hear the sexually explicit

narratives. Finally, Lee argues that there was insufficient evidence that he attempted to

obstruct justice.

       A.     The Motion to Suppress

       Lee argues that the affidavit accompanying the officer’s request for a warrant to

search for child pornography was insufficiently detailed and did not provide the

magistrate with probable cause to issue a warrant.4 We review “the District Court’s

denial of a motion to suppress for clear error as to the underlying factual findings and

exercise[] plenary review of the District Court’s application of the law to those facts.”

United States v. Perez, 280 F.3d 318, 336 (3d. Cir. 2002). When evaluating whether


       3
        The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
pursuant to 28 U.S.C. § 1291.
       4
        As discussed above, police officers executed several search warrants on Boal
Mansion and Lee’s electronic devices. The first warrant to search Lee’s computer was
granted in order to find the video containing hypnotic music described by the minor who
accused Lee of molestation. Lee does not challenge the validity of that search warrant.

                                              6
there was probable cause to issue a search warrant, “our role is not to make our own

assessment as to whether probable cause existed. Rather, we are constrained to

determine only whether the affidavit provides a sufficient basis for the decision the

magistrate judge actually made.” United States v. Jones, 994 F.2d 1051, 1057 (3d Cir.

1993).

         A warrant is valid if, given the totality of the circumstances, there is a “fair

probability that … evidence of a crime will be found in a particular place.” Illinois v.

Gates, 462 U.S. 213, 238 (1983). With respect to “a warrant application to search for

child pornography, a magistrate must be able to independently evaluate whether the

contents of the alleged images meet the legal definition of child pornography.” United

States v. Pavulak, 700 F.3d 651, 661 (3d Cir. 2012). That evaluation can occur “in one of

three ways: (1) the magistrate can personally view the images; (2) the search-warrant

affidavit can provide a sufficiently detailed description of the images; or (3) the search-

warrant application can provide some other facts that tie the images’ contents to child

pornography.” Id. (internal quotation marks and citation omitted). At least one of those

ways was satisfied here, and arguably all three were.

         First, the magistrate was provided with a screenshot of the youth depicted in the

video. Lee argues that the screenshot was inadequate because the image is somewhat

unclear in the copy of the application that is in the record. Lee gives us no reason to

believe that the image was blurry when originally presented to the magistrate. But,

because the District Court “ha[d] no knowledge as to whether the magistrate judge was



                                                7
provided with a more-discernable copy[,]” it did not rely on that image. (App. at 16 n.2.)

We likewise do not need to rely on it to conclude that probable cause was established.

       Second, the affidavit provided the magistrate with a “sufficiently detailed”

description of the images to conclude they contained child pornography. Id. The officers

reported that the video depicted “a young white male standing naked and masturbating.”

(App. at 75.) This is not a case where the officers merely asserted that there was child

pornography without “provid[ing] any further details about what the images depicted.”

Pavulak, 700 F.3d at 661. In addition, a total of three officers saw the pornographic

video and affirmed that the youth in the video appeared to be a minor. The first was an

officer of the Computer Forensics Unit with 25 years of law enforcement experience,

including viewing thousands of images and videos of alleged child pornography. The

other two officers also had experience with numerous child pornography investigations.

A pediatrician also watched the video and indicated that the male in the video appeared to

be under the age of eighteen. Lee argues that their declarations were inadequate because

none was certain that the youth was a minor. While none of the four were certain about

the age of the child, certainty is not a requirement for probable cause. Gates, 462 U.S. at

238 (asking whether there was a “fair probability” that “evidence of a crime will be

found”). The description of the video and the declarations of multiple witnesses with

extensive qualifications and professional experience were highly credible and provided

probable cause.

       Third, the magistrate could also rely on the circumstances surrounding the request

for a warrant which “tie the [video’s] contents to child pornography.” Pavulak, 700 F.3d

                                             8
at 661. Lee had been accused of molesting a teenage boy and that accusation had been

partially corroborated by the discovery of the hypnotic video on the laptop. Even if it

was not clear that the individual in the pornographic video was a minor, that was a

reasonable inference for the magistrate to draw in light of the other evidence

corroborating, at least in part, the accusations against Lee. Cf. United States v. Ventresca,

380 U.S. 102, 106 (1965) (explaining that the Fourth Amendment does not “den[y] … the

support of the usual inferences which reasonable men draw from evidence” (citation

omitted)). As the officers declared in the affidavit supporting the search warrant

application, based on their “training and experience[,] … individuals who view child

pornography and perpetrate [crimes] on minors often view multiple images and store and

keep those images on the[ir] computers in various forms.” (App. at 75.) Based on that

inference, the magistrate could conclude that there was a “fair probability” that a search

would uncover additional evidence of child pornography. Gates, 462 U.S. at 238.

Accordingly, there was a sufficient basis for the magistrate’s probable cause

determination.5

       B.     Sexual Exploitation of Minors

       Lee’s conviction for sexual exploitation of minors under 18 U.S.C. § 2251 was

based on the cropped photographs found on Lee’s electronic devices of the boys

participating in the Boal Mansion docent program. On appeal, Lee challenges for the

first time the sufficiency of the evidence supporting his conviction. Accordingly, we

       5
         The parties argue over whether the good faith exception would apply in the event
that we found that the search warrant was invalid. Because we conclude that the warrant
was valid, we need not consider those arguments.
                                              9
review the sufficiency of the evidence for plain error. United States v. Gaydos, 108 F.3d

505, 509 (3d Cir. 1997) (explaining that when a criminal defendant has not “fil[ed] a

timely motion for a judgment of acquittal … we review the sufficiency of the evidence

under a plain error standard”). Under plain error review, we will overturn the jury’s

verdict only if, viewing the evidence “in the light most favorable” to the government, no

“rational trier of fact could have found proof of guilt beyond a reasonable doubt based on

the available evidence.” United States v. Wolfe, 245 F.3d 257, 261 (3d Cir. 2001) (citing

Jackson v Virginia, 443 U.S. 307 (1979)).

       Section 2251 provides that “[a]ny person who employs, uses, persuades, induces,

entices, or coerces any minor 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,” is guilty of sexually exploiting a minor. 18 U.S.C. § 2251(a). “[S]exually

explicit conduct” is defined, in relevant part, as the “lascivious exhibition of the genitals

or pubic area[.]” 18 U.S.C. § 2256(2)(A)(v). In United States v. Knox, 32 F.3d 733, 745

(3d Cir. 1994), we concluded that a “lascivious exhibition” is any “depiction which

displays or brings forth to view in order to attract notice to the genitals or pubic area of

children, in order to excite lustfulness or sexual stimulation in the viewer.” We rejected

the requirement that such a depiction must involve nudity, id., or “that the contours of the

genitals or pubic area be discernible or otherwise visible through the child subject’s

clothing.” Id. at 746. Instead, a depiction “requires only that the material depict some

sexually explicit conduct by the minor subject which appeals to the lascivious interest of

the intended audience.” Id. at 747 (internal quotation marks omitted).

                                              10
       Lee concedes that at least some of the photographs in question were lascivious in

nature.6 (Reply Br. at 4 (explaining that “it was not disputed at trial that the cropped

images at issue were lascivious” and that “[w]hether the photographs were lascivious was

not an issue raised on appeal.” (internal quotation marks omitted)).) Instead of arguing

that the images were not lascivious, Lee argues that the government failed to establish

that, when he took the pictures, he had the specific criminal intent required by § 2251.

The government had to prove that Lee took his photographs and videos “for the purpose

of producing any visual depiction” of a minor who was “engage[d] in[] any sexually

explicit conduct[.]” 18 U.S.C. § 2251(a); see also Knox, 32 F.3d at 749 (“The harm

Congress attempted to eradicate by enacting the child pornography laws is present when

a photographer unnaturally focuses on a minor child’s clothed genital area with the

obvious intent to produce an image sexually arousing to pedophiles.”); United States v.

Larkin, 629 F.3d 177, 184 (3d Cir. 2010) (affirming a sexual exploitation conviction

because the defendant had “designed the image depicted in th[e] photograph to arouse”).

       We conclude that there was sufficient circumstantial evidence to support the jury’s

conviction of Lee. In particular, the sexually explicit stories strongly suggest that Lee

took the images with the requisite intent. The cropped images were closely connected to

the narratives that Lee illustrated. For instance, one story describes a child wearing the

       6
         As he should. The images were edited specifically to focus on the youths’ pubic
region. Some of the images were also cropped to suggest sexual conduct or a willingness
to engage in sexual conduct, such as an image that appeared to depict one boy touching
another boy’s genitals, and another where a boy appeared to be touching himself. Thus,
there was sufficient evidence for the jury to conclude that the images were sexually
explicit in nature. See United States v. Villard, 885 F.2d 117, 122 (3d Cir. 1989) (listing
factors that we consider to determine if an image is sexually explicit).
                                             11
same clothing that the child in a photograph wore. Another story has a child telling an

adult to “let me sleep” and the accompanying image came from a video where one of the

youth said the same thing to Lee. (App. at 542.) Given the close nexus between the

images and the stories, it was reasonable to conclude that Lee took the photos with the

intent of editing them and constructing a sexually explicit narrative around them.

       Another factor that indicates intent is the large number of images and stories that

the police uncovered. Cf. United States v. Ortiz-Graulau, 526 F.3d 16, 19 (1st Cir. 2008)

(“[T]he number of photographs, many of sexually explicit poses, permits a strong

inference that some of the conduct occurred in order to make the photographs.”). With

over two dozen stories, scores of sexually explicit cropped images, and thousands of

images of child pornography found on Lee’s devices, it was natural to conclude that Lee

took pictures of youth with his pornographic predilection in mind rather than innocently.

Viewing the evidence in the light most favorable to the government, a reasonable jury

could infer that Lee took the photographs with the intent of creating child pornography.

Thus, there was no plain error.

       C.     Motion in Limine

       Before trial, Lee filed a motion in limine, arguing that the sexually explicit stories

that he wrote ought to be either redacted or excluded from the jury as inadmissible

propensity evidence under Federal Rule of Evidence 404(b). The government responded

that the stories qualified as evidence “intrinsic,” (App. at 1027), to the charged offense

and that there was therefore no need to consider whether the stories were admitted for a

proper purpose under Rule 404(b). See United States v. Green, 617 F.3d 233, 245 (3d

                                             12
Cir. 2010) (“Extrinsic evidence must be analyzed under Rule 404(b); intrinsic evidence

need not be.”). The District Court decided to apply Rule 404(b) and concluded that the

stories were admissible to prove Lee’s “intent, knowledge, and absence of a mistake[.]”

(App. at 1025.) We review for abuse of discretion the District Court’s decision to admit

the evidence, and there was no such abuse.7 United States v. Daraio, 445 F.3d 253, 259

(3d Cir. 2006).

       Rule 404(b) prohibits the admission of evidence to prove action in conformity

with a character or trait. Fed. R. Evid. 404(b). Thus, the stories could not be admitted to

prove that Lee was prone to taking sexually explicit pictures because of his interest in

pornographic narratives. However, Rule 404(b)(2) allows for the admission of evidence

of a defendant’s actions to prove, “motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident.” The stories were

admissible under that rule for several reasons. First, as already noted, they were helpful

in proving Lee’s motive, intent, or plan. The stories also showed that the images were

intentionally cropped to parallel certain story lines and to be titillating and lascivious in

nature. Cf. United States v. Vosburgh, 602 F.3d 512, 538 (3d Cir. 2010) (admitting

lawful but sexually suggestive images into evidence because they “tended to disprove any

argument that [the defendant] unknowingly possessed” unlawful pornographic images);


       7
        The government makes a strong case that the narratives were “intrinsic” because
they “directly prove[d],” United States v. Green, 617 F.3d 233, 249 (3d Cir. 2010), that
Lee had the required specific intent at the time when he took the images. However,
because the narratives were clearly admissible under Rule 404(b), we do not need to
decide whether they were in fact “intrinsic” to Lee’s production of child pornography.

                                              13
United States v. Dornhofer, 859 F.2d 1195, 1199 (4th Cir. 1988) (explaining that “[t]he

fact that [a defendant] had a notebook containing pictures of nude children, [and] novels

dealing with incest … makes [the defendant’s] claim that he ordered the child

pornography by mistake less probable”). Additionally, Lee argued that the images were

cropped by someone other than him. But the content of the stories strongly suggested

that they were written by him. In particular, the stories are told from the perspective of

an adult male watching over teenagers and contain other parallels to Lee’s life, such as

the protagonist teaching the children in the story to play guitar as Lee did with the

docents. Reading the stories to the jury thus helped to rebut Lee’s central defense.

       The District Court also was within its discretion when it determined that the

danger of unfair prejudice from the narratives did not substantially outweigh their

probative value. Fed. R. Evid. 403. The narratives were highly probative, showing that

Lee took the pictures with the requisite intent. While the stories were graphic and

unquestionably prejudicial, the prejudicial impact was not unfair. Moreover, any risk of

unfair prejudice was limited by several actions taken at trial. See Vosburgh, 602 F.3d at

538 (noting in a similar context that the use of limiting instructions reduced the risk of

prejudice). The government presented to the jury only “three documents selected from a

set of twenty-six narrated stories[.]” (App. at 1037.) And the District Court gave

limiting instructions noting that the “composition and possession of those fictional stories

alone [is] not illegal.” (App. at 1037.) It explained that the “writings were introduced for

a limited purpose” under Rule 404(b). (App. at 1037-38.) While it was within the

District Court’s discretion to partially redact the narratives, it was not required to do so.

                                              14
In light of the high probative value of the three stories and the limiting instructions read

to the jury, there was clearly no abuse of discretion in allowing the jury to hear that

sample of the narratives.

       D.     Obstruction of Justice

       Finally, Lee argues that there was insufficient evidence that he attempted to

obstruct justice by tampering with evidence. Specifically, he suggests that his conviction

for that crime is invalid because he did not take a “substantial step” toward the

obstruction of justice. See United States v. Hsu, 155 F.3d 189, 202 (3d Cir. 1998)

(explaining that a conviction for attempt generally requires that a “defendant must (1)

have the intent needed to commit a crime defined … and must (2) perform an act

amounting to a ‘substantial step’ toward the commission of that crime”). Because Lee

did not make a motion for a judgment of acquittal, we again review for plain error,

Gaydos, 108 F.3d at 509, and under that standard it is easy to reject his argument.

       The record shows that Lee took several substantial steps directed at obstructing

justice. In particular, he told his cousin to retrieve his phone from the FBI and have

someone wipe the data from it. When that did not happen, he then told his cousin to have

the phone wiped remotely. He continued to ask his cousin if he had successfully had the

phone wiped. And when his cousin refused to destroy the evidence as Lee demanded,

Lee asked for the contact information for someone who could wipe the phone so that Lee

himself could make the arrangements. In light of that evidence, the jury could reasonably

conclude that Lee had taken a substantial step towards the obstruction of justice. See

United States v. Gordon, 710 F.3d 1124, 1152 (10th Cir. 2013) (upholding a conviction

                                             15
for attempted obstruction of justice when a defendant took a “tangible act” that “strongly

corroborate[d] the firmness of the defendant’s intent to carry out the substantive

offense”). Accordingly, there was no error, let alone plain error, in Lee’s conviction on

that count.

III.   Conclusion

       For the foregoing reasons, we will affirm Lee’s conviction.




                                            16
