               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 18a0081n.06

                                          No. 16-4006

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                     FILED
                                                                               Feb 16, 2018
                                                                           DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                        )
                                                 )
        Plaintiff-Appellee,                      )         ON APPEAL FROM THE
                                                 )         UNITED STATES DISTRICT
v.                                               )         COURT FOR THE SOUTHERN
                                                 )         DISTRICT OF OHIO
DEMIAN PINA,                                     )
                                                 )
                                                                   OPINION
        Defendant-Appellant.                     )
                                                 )


Before: MERRITT, MOORE, and BUSH, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. Following a jury trial, Demian Pina was

convicted of five counts of distribution of child pornography, in violation of 18 U.S.C.

§ 2252(a)(2), and two counts of possession of child pornography, in violation of 18 U.S.C.

§ 2252(a)(4). The district court sentenced Pina to 210 months’ imprisonment, followed by

twenty years’ supervised release. Pina now contests his conviction on three grounds. First, he

argues that his rights under the Speedy Trial Act and the Sixth Amendment were violated when

the district court ordered a second mental-health evaluation prior to concluding its competency

hearing. Second, Pina asserts that the district court erred in following the Sixth Circuit Pattern

Criminal Jury Instructions and instructing the jury that “any means or facility of interstate

commerce includes the internet or telephone.” Lastly, he contests the district court’s admission

of country-of-origin labels, affixed to devices seized from his residence, for the purpose of

proving the interstate nexus required for conviction under 18 U.S.C. § 2252(a)(2) and (a)(4). For
No. 16-4006
United States v. Demian Pina


the following reasons we reject all three of Pina’s arguments, and AFFIRM Pina’s conviction on

all counts.

                                     I. BACKGROUND

A. The Investigation

        In November 2010, a member of the Ohio Internet Crimes Against Children Task Force

(“Ohio ICAC”) was investigating the distribution of child pornography through peer-to-peer file-

sharing networks. R. 126 (Trial Tr. Day 1 at 147, 162) (Page ID #744, 759). The investigator

identified an IP address that was sharing suspected child pornography; this suspicion was

confirmed after the investigator downloaded the files and viewed them. Id. at 164 (Page ID

#761). Ohio ICAC subsequently identified the IP address as belonging to Pina. Id. at 181 (Page

ID #778).

        The FBI searched Pina’s residence in February 2011 and recovered multiple computers

that Pina identified as his. R. 127 (Trial Tr. Day 2 at 7, 10–11) (Page ID #806, 809–10). A

subsequent computer forensic examination of these devices found hundreds of files containing

child pornography and hundreds more deleted files with names suggesting that they had

contained child pornography. Id. at 72, 78 (Page ID #871, 877).

        As the investigation progressed, Pina continued to distribute child pornography through

peer-to-peer file-sharing networks. In November 2012, another Ohio ICAC agent identified Pina

as the owner of an IP address sharing files of suspected child pornography. Id. at 119 (Page ID

#918). And, again, in March 2013, investigators downloaded child pornography from Pina’s IP



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address on three separate occasions. Id. at 155 (Page ID #954). In June 2013, investigators

seized two computers and an external hard drive from Pina’s house. Id. at 191–94 (Page ID

#990–93).    A forensic examination of these items revealed that each contained child

pornography. Id. at 215–17 (Page ID #1014–16).

       A federal grand jury indicted Pina with five counts of distribution of child pornography,

in violation of 18 U.S.C. § 2252(a)(2), and two counts of possession of child pornography, in

violation of 18 U.S.C. § 2252(a)(4). R. 5 (Indictment at 1–4) (Page ID #10–13).

B. Pina’s Competency to Stand Trial

       On February 26, 2014, Pina made his initial appearance, and his answers during the

hearing raised doubts about his competency. R. 132 (Initial Appearance) (Page ID #1408–23).

For example, in response to the magistrate judge’s questions about whether he understood the

charges against him, Pina said he did not. Id. at 3 (Page ID #1410). The magistrate judge also

ordered him to provide his Social Security number to the U.S. Marshals Service—something

Pina had refused to do when he was first arrested. Id. at 6 (Page ID #1413). Pina explained his

refusal to do so: “I just wanted to make sure that my rights and my religious freedom would still

be not broken as far as what you are saying you are forcing me to do something and I still have

to answer to God for all of this.” Id. at 13 (Page ID #1420). Pina also asked the magistrate judge

what his rights were, after the magistrate judge had already explained them to him. Id. at 2, 8

(Page ID #1409, 1415). At the end of the hearing, the magistrate judge raised the issue of




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whether Pina was competent to understand the proceedings against him. Id. at 13 (Page ID

#1420).

       The government filed a motion regarding Pina’s competency to stand trial on April 1,

2014. R. 23 (Mot. Pursuant to 18 U.S.C. § 4241(a)) (Page ID #71–73). In response, the district

court questioned Pina about his understanding of the legal process. R. 139 (April 29, 2014 Hr’g

at 3–24) (Page ID #1553–63). The district court subsequently issued an order in which it stated

that there was not currently reasonable cause to believe that Pina was incompetent, but it would

continue to monitor his understanding of the proceedings against him.         R. 30 (Order re

Competency) (Page ID #88).

       On August 11, 2014, the district court sua sponte raised the issue of Pina’s competency,

after Pina moved to represent himself. R. 136 (Hr’g re Mot. to Waive Right to Counsel at 14–

15) (Page ID #1479–80); R. 37 (Mot. to Waive Right to Counsel) (Page ID #100–02). The

district court decided to refer Pina to a psychologist and stated that it would use the mental-

health evaluation to determine both Pina’s competency to stand trial and whether Pina’s waiver

of his right to counsel was knowing and voluntary. Id. at 16, 21 (Page ID #1481, 1486); R. 38

(Or. re Mental-Health Evaluation at 1) (Page ID #103). Pina did not object to this evaluation or

competency hearing. R. 38 (Or. re First Mental-Health Evaluation at 1) (Page ID #103).

       Dr. De Marchis evaluated Pina on August 16, 2014. De Marchis reported that Pina was

uncooperative during the evaluation and refused to answer basic background questions. When

Pina did answer De Marchis’s questions, he sometimes gave idiosyncratic answers; furthermore,



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he repeatedly stated that he did not understand the charges against him.                            Of the two

psychological tests that De Marchis conducted, one produced invalid results because of Pina’s

uncooperativeness. Nevertheless, De Marchis concluded that Pina was competent to stand trial.

        On September 8, 2014, the district court held a hearing regarding Pina’s competency to

stand trial and his motion to waive his right to counsel. R. 140 (Competency Hr’g Pt. 1 at 2)

(Page ID #1576). The government made an oral motion for a second mental-health evaluation,

due to its concern that the first evaluation’s results may have been inaccurate because of Pina’s

unwillingness to answer questions during his clinical interview. Id. at 3 (Page ID #1577). Pina

objected. Id. at 4 (Page ID #1578). The district court agreed with the government, and ordered a

second evaluation. Id.; R. 39 (Or. re Second Mental-Health Evaluation at 2) (Page ID #105).

        The second mental-health evaluation, conducted by Dr. Kissin, occurred over a month-

long period. Again, Pina did not cooperate with the evaluation process and refused to provide

basic information about himself. But Dr. Kissin concluded that Pina’s unusual behavior was due

to his antagonism towards the government and not the result of a mental illness. Thus, Dr.

Kissin concluded that Pina was competent to stand trial. After receiving this second evaluation,

the district court held that Pina was competent to stand trial.1 R. 124 (Competency Hr’g Pt. 2 at

3) (Page ID #561); R. 42 (Or. re Pina’s Competency at 10) (Page ID #125).

        Pina subsequently moved to dismiss the case against him for violations of the Speedy

Trial Act and his Sixth Amendment speedy-trial right. R. 53 (Mot. to Dismiss at 3) (Page ID

        1
          At this hearing, Pina withdrew his motion to waive his right to counsel. R. 124 (Competency Hr’g Pt. 2 at
5) (Page ID #563).


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#284). He argued that the delay in his trial caused by the second mental-health evaluation should

not be excluded from the speedy-trial clock. Id. at 4 (Page ID #285); R. 55 (Reply to Gov’t Op.

to Mot. to Dismiss at 1) (Page ID #290). The district court denied Pina’s motion on the basis

that the second mental-health evaluation was necessary in order to determine Pina’s competence.

R. 58 (Or. Denying Mot. to Dismiss at 1–2) (Page ID #325–26). Furthermore, the district court

noted that the speedy-trial clock had also been tolled by Pina’s motion to suppress, which had

been filed on July 10, 2014, but was not ruled upon until June 15, 2015. Id. at 1. n.1 (referencing

R. 34 (Mot. to Suppress) (Page ID #93–95) and R. 56 (Or. Denying Mot. to Suppress) (Page ID

#292–303)).

C. Government Evidence at Trial Showing an Interstate Nexus

       At trial, the government needed to prove an interstate nexus for each of the seven counts.

To do so, the government introduced several different categories of evidence. First, multiple

investigators testified that they had used the internet to access Pina’s computer via a peer-to-peer

file-sharing network and that anyone who used this network could download the child

pornography Pina was sharing. R. 126 (Trial Tr. Day 1 at 151–52, 155) (Page ID #748–49, 752);

R. 127 (Trial Tr. Day 2 at 107, 121, 149) (Page ID #906, 920, 948). Second, computer forensic

analysts who had examined the electronic devices seized in 2011 and 2013 found that the child

pornography contained in those devices had been obtained via a peer-to-peer file-sharing

network. R. 127 (Trial Tr. Day 2 at 60–70, 75–78, 99) (Page ID #859–69, 874–77, 898); R. 128

(Trial Tr. Day 3 at 14, 36–40, 46–50, 67–98) (Page ID #1035, 1057–61, 1067–71, 1088–89).



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       Third, investigators testified about the manufacturing origin of the electronic devices

seized. The expert computer forensic analyst who examined the devices seized in 2011 testified

that to the best of his knowledge the devices were manufactured outside of the United States.

R. 127 (Trial Tr. Day 2 at 42–46) (Page ID #441–43). Another government witness read into

evidence the country-of-origin labels from the devices seized in 2013; each of these labels stated

that the device was made outside of the United States. Id. at 195–99 (Page ID #994–98). The

defendant had initially objected to this testimony as hearsay when the government had asked the

witness: “Are you able to tell from the outside of those exhibits where they were manufactured

or produced?” Id. at 195–96 (Page ID #994–95). The government then rephrased the question

and asked the witness to read the labels; the defendant did not object to the rephrased question.

Id. at 197–99 (Page ID #996–98). In an order issued after the trial’s conclusion, the district court

clarified that the country-of-origin labels were hearsay, but they were admissible under the

residual exception in Federal Rule of Evidence 807. R. 77 (Or. Memorializing Hearsay Ruling at

4, 7) (Page ID #368, 371). Pina made no argument contesting the applicability of the residual

exception in front of the district court. Id. at 5–6 (Page ID #369–70).

       Finally, one of the FBI agents who had worked on the investigation testified that she had

submitted the images that had been discovered in Pina’s home to the National Center for Missing

and Exploited Children (“NCMEC”). R. 129 (Trial Tr. Day 4 at 30) (Page ID #1268). The agent

explained that the NCMEC will identify any images belonging to a known series of child

pornography and provide the name of the original investigating agency that identified the child in



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United States v. Demian Pina


the picture. Id. The original investigating agency is located where the initial crime against the

child occurred. Id. According to the FBI agent, approximately thirty-five of the files they

submitted to the NCMEC belonged to identified series and the investigating agencies were

located, among other places, in Brazil, the United Kingdom, Germany, Switzerland, Wisconsin,

and California. Id. at 31 (Page ID #1269).

                                      II. DISCUSSION

A. Speedy-Trial Rights

       Pina argues that the delay in his trial caused by the second mental-health evaluation—the

115-day period between October 6, 2014, and January 29, 2015—violated his rights under the

Speedy Trial Act and the Sixth Amendment. Appellant Br. at 8. Pina moved to dismiss the case

against him on these grounds, R. 53 (Mot. to Dismiss at 3) (Page ID #284), but the district court

denied his motion, R. 58 (Or. Denying Mot. to Dismiss at 1) (Page ID #325).

       We review a district court’s denial of a defendant’s motion to dismiss under the Speedy

Trial Act or the Sixth Amendment using the same standard of review: questions of law are

reviewed de novo, and questions of fact are reviewed for clear error. United States v. Sobh,

571 F.3d 600, 602 (6th Cir. 2009); United States v. Gardner, 488 F.3d 700, 719 (6th Cir. 2007).

       1. The Speedy Trial Act

       “The Speedy Trial Act of 1974 (Speedy Trial Act or Act), 18 U.S.C. § 3161 et seq.,

requires that a criminal defendant’s trial commence within 70 days after he is charged or makes

an initial appearance, whichever is later, see § 3161(c)(1), and entitles him to dismissal of the



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United States v. Demian Pina


charges if that deadline is not met, § 3162(a)(2).” Bloate v. United States, 559 U.S. 196, 198–99

(2010). For a violation of the Speedy Trial Act, the indictment may be dismissed with or without

prejudice. United States v. Sutton, 862 F.3d 547, 554 (6th Cir. 2017) (citing 18 U.S.C. § 3162).

“The Act, however, excludes from the 70–day period delays due to certain enumerated events.”

Bloate, 559 U.S. at 199 (citing 18 U.S.C. § 3161(h)).

       “[O]nce a defendant makes a prima facie showing that more than 70 days have passed,

the government bears the burden of proving sufficient excludable time by a preponderance of the

evidence.” Sobh, 571 F.3d at 602. Here, 482 days passed from Pina’s initial appearance on

February 26, 2014, to the beginning of his trial on June 22, 2015. R. 132 (Initial Appearance)

(Page ID #1408–23); R. 126 (Trial Tr. Day 1) (Page ID #598–799). Thus, Pina has made a

prima facie showing that more than seventy days passed. Pina concedes, however, that his claim

hinges entirely on whether the 115-day delay caused by the second mental-health evaluation is

excluded from the Act’s computation of time. Appellant Br. at 12–13. In other words, Pina

concedes that the government can show that there is sufficient excludable time such that the

Speedy Trial Act was not violated if this 115-day delay is excludable.

       “[D]elay resulting from any proceeding, including any examinations, to determine the

mental competency or physical capacity of the defendant” is excluded from the computation of

time under the Speedy Trial Act. 18 U.S.C. § 3161(h)(1)(A). Pina makes a two-step argument

for why this provision does not fatally preclude his claim. We must accept both steps in order

for Pina to prevail. First, he argues that the district court abused its discretion when it ordered



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the second mental-health evaluation. Appellant Br. at 12–21. Second, Pina argues that we

should import the reasonable-cause standard in 18 U.S.C. § 4241(a), which governs when the

district court should order a competency hearing, into 18 U.S.C. § 3161(h)(1)(A) so that if the

district court did not have reasonable cause to order a hearing, then any delay caused by a

mental-health evaluation conducted in order to facilitate this hearing should not be excludable

from the time computation of the Speedy Trial Act.2 Appellant Br. at 21–25.

       “This Court reviews the determination of whether there is reasonable cause to question a

defendant’s competence and to grant a competency hearing under an abuse of discretion

standard.” United States v. Ross, 703 F.3d 856, 867 (6th Cir. 2012). Upon a motion by the

defendant or the government for a competency hearing:

       [t]he court shall grant the motion, or shall order such a hearing on its own motion,
       if there is reasonable cause to believe that the defendant may presently be
       suffering from a mental disease or defect rendering him mentally incompetent to
       the extent that he is unable to understand the nature and consequences of the
       proceedings against him or to assist properly in his defense.
18 U.S.C. § 4241(a).           Prior to this hearing, “the court may order that a psychiatric or

psychological examination of the defendant be conducted, and that a psychiatric or psychological

report be filed with the court, pursuant to the provisions of section 4247 (b) and (c).” 18 U.S.C.

§ 4241(b). “A psychiatric or psychological examination ordered pursuant to this chapter shall be

conducted by a licensed or certified psychiatrist or psychologist, or, if the court finds it

appropriate, by more than one such examiner.” 18 U.S.C. § 4247(b) (emphasis added).


       2
           See note 3 infra.


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         Pina does not contest the district court’s initial decision to order a competency hearing

and the first mental-health evaluation to facilitate a determination of his competency at that

hearing. Rather, Pina argues that the district court abused its discretion by ordering a second

mental-health evaluation prior to the conclusion of his competency hearing because it “arbitrarily

disregarded the first competency evaluation.”3 Appellant Br. at 17.

         The district court has the authority to order a second mental-health evaluation “if the

court finds it appropriate.” 18 U.S.C. § 4247(b). During the first evaluation, conducted by De

Marchis, Pina was uncooperative. He stated that he did not understand the charges against him.

Furthermore, of the two psychological tests that De Marchis conducted, one produced invalid

results. Thus, despite De Marchis’s opinion that Pina was competent, the issues that arose during

the evaluation made it appropriate for the district court to order a second mental-health

evaluation before it concluded its competency hearing. See United States v. Martinez-Haro,

645 F.3d 1228, 1233 (10th Cir. 2011) (holding that it was not an abuse of discretion for a district

court to order a second mental-health evaluation when the first evaluation was hampered by a

language barrier and there was no evidence that the government was “shopping” for an evaluator

who would opine that the defendant was competent); cf. Drope v. Missouri, 420 U.S. 162, 181




         3
           Pina elides the difference between a mental-health evaluation and a competency hearing in his argument.
In this case, the district court did not make a determination as to Pina’s competency to stand trial until after the court
had the results of both evaluations. R. 124 (Competency Hr’g Pt. 2 at 3) (Page ID #561); R. 42 (Or. re Pina’s
Competency at 10) (Page ID #125). This makes Pina’s argument that there must be evidence of a change in Pina’s
competency between the first and second evaluation inapposite because the district court had not yet determined
Pina’s competency when the second evaluation was ordered. Appellant Br. at 17–21.


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No. 16-4006
United States v. Demian Pina


(1975) (recognizing that competency may change during trial). The district court acted to protect

Pina’s interests; it did not abuse its discretion in doing so.

        Because Pina cannot prevail on the first part of his two-step argument, we need not

address the second part: that we should import 18 U.S.C. §§ 4241(a) and 4247(b) into 18 U.S.C.

§ 3161(h)(1)(A). Consequently, we reject Pina’s argument that his rights under the Speedy Trial

Act were violated because the district court did not abuse its discretion in ordering the second

mental-health evaluation, and therefore the 115-day delay resulting from this second evaluation

is excludable from the Speedy Trial Act’s time computation.

        2. Sixth Amendment Speedy-Trial Right

        Pina also argues that his speedy-trial rights under the Sixth Amendment were violated.

Appellant Br. at 9. The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the

accused shall enjoy the right to a speedy and public trial . . . .” U.S. CONST. amend. VI. “The

purpose of the speedy-trial guarantee is to protect the accused against oppressive pre-trial

incarceration, the anxiety and concern due to unresolved criminal charges, and the risk that

evidence will be lost or memories diminished.” Brown v. Romanowski, 845 F.3d 703, 712 (6th

Cir. 2017).    “The remedy for a Sixth Amendment speedy-trial violation is dismissal with

prejudice.” Sutton, 862 F.3d at 554.

        The Supreme Court has articulated a four-factor test for evaluating a defendant’s Sixth

Amendment speedy-trial claim: “(1) length of delay; (2) the reason for the delay; (3) the

defendant’s assertion of his right; and (4) prejudice to the defendant.” United States v. Brown,



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498 F.3d 523, 530 (6th Cir. 2007) (citing Barker v. Wingo, 407 U.S. 514, 530–33 (1972)).

“None of the factors is ‘a necessary or a sufficient condition to the finding of a deprivation of the

right of speedy trial,’ but the factors are related and ‘must be considered with such other

circumstances as may be relevant’ in ‘a difficult and sensitive balancing process.’” United States

v. Young, 657 F.3d 408, 414 (6th Cir. 2011) (quoting Barker, 407 U.S. at 533).

       “The first Barker factor—the length of delay—serves as a threshold or ‘triggering

mechanism’ for a speedy-trial analysis.” Id. (quoting Barker, 407 U.S. at 530). “That is, if there

is no delay that is presumptively prejudicial, there is no necessity for inquiry into the other

factors.” Gardner, 488 F.3d at 719. A delay is “presumptively prejudicial” if it “approaches one

year.” Id. Unlike the Speedy Trial Act, the Sixth Amendment time calculation begins “when the

defendant is arrested or indicted, whichever is earlier.” Romanowski, 845 F.3d at 712–13. Pina

was indicted on February 25, 2014. R. 5 (Indictment at 1) (Page ID #10). His trial began on

June 22, 2015. R. 126 (Trial Tr. Day 1 at 2) (Page ID #599). Thus, Pina suffered a delay of

483 days, which is “presumptively prejudicial.”

       In assessing the second Barker factor, “the court considers who is most at fault” for the

delay: “the government or the defendant.” Romanowski, 845 F.3d at 714. “Governmental

delays motivated by bad faith, harassment, or attempts to seek a tactical advantage weigh heavily

against the government, while neutral reasons such as negligence are weighted less heavily, and

valid reasons for a delay weigh in favor of the government.” United States v. Ferreira, 665 F.3d

701, 705–06 (6th Cir. 2011) (quoting United States v. Robinson, 455 F.3d 602, 607 (6th Cir.



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2006)). Pina contests only the 115-day delay caused by the second mental-health evaluation,

Appellant Br. at 10, presumably because the remainder of the delay is mostly attributable to pre-

trial motions Pina made or continuances that he requested. Young, 657 F.3d at 415 (“When a

party makes motions, it cannot use the delay caused by those motions as a basis for a speedy-trial

claim.”); see, e.g., R. 29 (Or. re First Def. Mot. to Continue) (Page ID #87); R. 32 (Second Def.

Mot. to Continue) (Page ID #90–92). But the reason behind this delay weighs in favor of the

government. The government had a valid reason to ensure that the defendant was competent to

stand trial. Drope, 420 U.S. at 172 (“[T]he failure to observe procedures adequate to protect a

defendant’s right not to be tried or convicted while incompetent to stand trial deprives him of his

due process right to a fair trial.”); cf. United States v. Murphy, 241 F.3d 447, 454 (6th Cir. 2001)

(holding, in the context of a Speedy Trial Act claim, that “a defendant may not complain of

delays occasioned by the trial court’s attempt to protect his interests”).

       The government does not contest that the third Baker—whether the defendant asserted

his speedy-trial right—weighs in favor of Pina. Appellee Br. at 25–26. Pina moved the district

court to dismiss the case against him for violations of his Sixth Amendment speedy-trial right.

R. 53 (Mot. to Dismiss at 3) (Page ID #284).

       The final Barker factor “requires a defendant to show that substantial prejudice has

resulted from the delay.” Ferreira, 665 F.3d at 706 (internal citation and quotation marks

omitted). “The prejudice prong exists to protect three interests: ‘(i) to prevent oppressive pretrial

incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the



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possibility that the defense will be impaired.’”                 Young, 657 F.3d at 418 (quoting Barker,

407 U.S. at 532). The last interest is the most important. Id. Pina argues that the extension of

his pretrial incarceration due to the second mental-health evaluation fostered his distrust in the

government, causing him to reject the multiple plea offers the government made.4 Appellant Br.

at 11. Any post-trial regret Pina has at turning down all three plea offers extended by the

government, however, is not prejudice attributable to the delay.                           Pina’s distrust of the

government existed prior to his second mental-health evaluation. And Pina rejected the first, and

most favorable, plea offer in June 2014, before the district court had even ordered the first

mental-health evaluation. R. 125 (Best Case/Worst Case Hr’g Tr. at 17) (Page ID #594).

         After considering the Barker factors, we hold that the government did not violate Pina’s

Sixth Amendment right to a speedy trial. Although the delay between Pina’s indictment and trial

was nearly sixteen months, much of this delay is attributable to Pina’s pretrial motions and

motions for continuances. Furthermore, the portion of the delay for which the government is to

blame weighs in favor of the government because it was seeking to protect Pina’s constitutional

rights. Finally, Pina cannot articulate any prejudice arising from this delay.




         4
           Pina argues in passing that the length of delay is presumptively prejudicial. Appellant Br. at 11. We have
previously held, however, that a two-year delay is not so extraordinarily long as to entitle a defendant to relief in the
absence of proof of actual prejudice. United States v. Jackson, 473 F.3d 660, 668 (6th Cir. 2007). Thus a delay of
less than two years, as occurred here, cannot be used to satisfy presumptively this fourth factor.


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B. Jury Instruction

       For both the distribution and possession counts, the government was required to prove an

interstate nexus. For the five counts of distribution, the government had to prove that the visual

depictions were distributed:

       using any means or facility of interstate or foreign commerce or that has been
       mailed, or has been shipped or transported in or affecting interstate or foreign
       commerce, or which contains materials which have been mailed or so shipped or
       transported, by any means including by computer, or knowingly reproduces any
       visual depiction for distribution using any means or facility of interstate or
       foreign commerce or in or affecting interstate or foreign commerce or through the
       mails . . . .
18 U.S.C. § 2252(a)(2) (emphasis added). Similarly, for the two counts of possession, the

government had to prove that the matter containing the visual depiction:

       has been mailed, or has been shipped or transported using any means or facility of
       interstate or foreign commerce or in or affecting interstate or foreign commerce,
       or which was produced using materials which have been mailed or so shipped or
       transported, by any means including by computer . . . .
18 U.S.C. § 2252(a)(4)(B) (emphasis added). Following the Sixth Circuit Pattern Criminal Jury

Instructions, the district court stated that: “The term means or facility of interstate commerce

includes the internet or telephone.” R. 129 (Trial Tr. Day 4 at 78) (Page ID #1316); Sixth Circuit

Pattern Criminal Jury Instructions, §§ 16.04 & 16.06 (2017). Pina argues that this definition is

erroneous. Appellant Br. at 41.

       Because Pina did not object in the district court to the jury instructions, R. 129 (Trial Tr.

Day 4 at 62, 82, 98) (Page ID #1300, 1320, 1336), we review his claim for plain error. United

States v. Castano, 543 F.3d 826, 833 (6th Cir. 2008). Plain-error review “involves four steps, or



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prongs:” (1) “there must be an error or defect”; (2) “the legal error must be clear or obvious”;

(3) “the error must have affected the appellant’s substantial rights”; and (4) if the “first three

prongs are satisfied, the court of appeals has the discretion to remedy the error—discretion

which ought to be exercised only if the error seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings.”      Puckett v. United States, 556 U.S. 129, 135 (2009)

(alteration in original) (internal citations and quotation marks omitted). The third prong—that

the error affected the defendant’s substantial rights—“in most cases [] means that the error must

have been prejudicial: It must have affected the outcome of the district court proceedings.”

United States v. Olano, 507 U.S. 725, 734 (1993).          “In the context of challenges to jury

instructions, ‘[p]lain error requires a finding that, taken as a whole, the jury instructions were so

clearly erroneous as to likely produce a grave miscarriage of justice.’” United States v. Newsom,

452 F.3d 593, 605 (6th Cir. 2006) (alteration in original) (quoting United States v. Combs,

33 F.3d 667, 669 (6th Cir. 1994)).

       The district court’s instruction complies with the law of this circuit. United States v.

Napier, 787 F.3d 333, 346–47 (6th Cir. 2015) (recognizing that the structure of the internet

means that transmitting an image via the internet necessarily implicates interstate transportation);

United States v. Weathers, 169 F.3d 336, 341 (6th Cir. 1999) (“It is well established that

telephones, even when used intrastate, constitute instrumentalities of interstate commerce.”);

United States v. Fuller, 77 F. App’x 371, 379 (6th Cir. 2003) (holding that “both the Internet and

the telephone[] [are] facilities or means of interstate commerce”); see also United States v.



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Thomas, 74 F.3d 701, 706–10 (6th Cir. 1996) (holding that the interstate commerce element in

18 U.S.C. § 1465 was satisfied when pornographic material was sent via the internet). And we

are not alone in considering the use of the internet to be inextricably linked to interstate

commerce. See, e.g., United States v. Hilton, 257 F.3d 50, 54 (1st Cir. 2001); United States v.

Harris, 548 F. App’x 679, 682 (2d Cir. 2013); United States v. Macewan, 445 F.3d 237, 244–45

(3d Cir. 2006); United States v. White, 2 F. App’x 295, 298 (4th Cir. 2001); United States v.

Runyan, 290 F.3d 223, 239 (5th Cir. 2002); United States v. Horne, 474 F.3d 1004, 1006 (7th

Cir. 2007); United States v. Giboney, 863 F.3d 1022, 1026 (8th Cir. 2017).

       Pina relies on a Tenth Circuit decision to argue that the district court’s instruction was

plainly erroneous. Appellant Br. at 43; Appellant Reply Br. at 20. In United States v. Schaefer,

501 F.3d 1197, 1201 (10th Cir. 2007), superseded by Effective Child Pornography Prosecution

Act of 2008, Pub. L. No. 110-358 (Oct. 8, 2008), and overruled in part by United States v.

Sturm, 672 F.3d 891 (10th Cir. 2012) (en banc), the Tenth Circuit held that mere use of the

internet does not equate to movement across state lines. This case is unpersuasive for a few

reasons, but most importantly it is inapposite to Pina’s case because the Tenth Circuit was

interpreting an earlier version of 18 U.S.C. § 2252(a) (2006), in which the language “any means

or facility of interstate commerce” was not present. The “narrow proposition for which Schaefer

still stands” is that the use of the internet does not automatically mean that something was

transmitted interstate. United States v. Kieffer, 681 F.3d 1143, 1155 (10th Cir. 2012). Schaefer

is silent as to whether the internet is a “means or facility of interstate commerce.”



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         Because the district court’s instruction is amply supported by our caselaw, Pina failed to

establish the first two prongs of plain-error review: that the district court erred in a manner that

was clear and obvious. Thus, we reject his challenge to this jury instruction.

C. Country-of-Origin Labels

         Pina argues that the district court erred by admitting the country-of-origin labels, affixed

to the electronic devices seized in 2013, for the purpose of proving that these devices were

manufactured outside of Ohio. Appellant Br. at 26.

         The parties disagree over the applicable standard of review.                       Appellant Br. at 26;

Appellee Br. at 32. If Pina objected to the introduction of these labels below, we would review

the district court’s evidentiary rulings for abuse of discretion.5                    United States v. Morales,

687 F.3d 697, 701–02 (6th Cir. 2012). “In addition, ‘reversal is appropriate only if the abuse of

discretion was not harmless error, that is, only if the erroneous evidentiary ruling affected the

outcome of the trial.’” Id. at 702 (quoting United States v. Marrero, 651 F.3d 453, 471 (6th Cir.

2011)). On the other hand, if Pina failed to object, we would review under a plain-error

standard. Id. at 701. The parties contest whether Pina objected to the introduction of these

country-of-origin labels. Appellant Br. at 26; Appellee Br. at 32; see Section I.C supra. Any

error arising from the admittance of these labels, however, is harmless; thus, we need not decide


         5
           Pina argues that we should review the district court’s decision to admit this evidence de novo. Appellant
Br. at 26. While we review “de novo the [district] court’s conclusions of law and review[] for clear error the court’s
factual determinations that underpin its legal conclusions,” we review the district court’s evidentiary ruling for abuse
of discretion. United States v. Geisen, 612 F.3d 471, 495 (6th Cir. 2010) (alterations in original). We have held
“that these two standards of review are not in conflict, as it is an abuse of discretion to make errors of law or clear
errors of factual determination in evidentiary rulings.” Id. (internal citation and quotation marks omitted).


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whether Pina properly objected at trial because the controlling standard of review will not change

the outcome.

         Assuming arguendo that the district court abused its discretion by admitting the country-

of-origin labels, this error is harmless. Morales, 687 F.3d at 702. In order to prove that Pina

violated 18 U.S.C. § 2252(a)(2) and (a)(4), the government needed to demonstrate an interstate

nexus. As described in detail in Section I.C, the government introduced ample evidence of this

required nexus besides the country-of-origin labels affixed to the devices seized in 2013. The

child pornography had been downloaded via the internet, through a peer-to-peer file-sharing

network. R. 128 (Trial Tr. Day 3 at 14, 36–40, 46–50, 67–98) (Page ID #1035, 1057–61. 1067–

71, 1088–89). And the internet is a “means or facility of interstate commerce.” See Section II.B

supra.    Additionally, the government offered undisputed evidence that some of the child

pornography recovered was produced outside of Ohio, thus allowing the jury to draw the

reasonable inference that this child pornography must have travelled across state lines. R. 129

(Trial Tr. Day 4 at 30–31) (Page ID #1268–69). Finally, the expert computer forensic analyst

who examined the devices seized in 2011 testified, without objection, that the devices were

manufactured outside of the United States. R. 127 (Trial Tr. Day 2 at 42–46) (Page ID #441–

43).

         Any error arising from the admission of the country-of-origin labels was harmless

because of the multiplicity of other evidence demonstrating an interstate nexus. Thus, we reject

Pina’s challenge to his conviction based on the introduction of this evidence.



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                                       III. CONCLUSION

       For the foregoing reasons we reject all three of Pina’s arguments as to why his conviction

should be reversed. Pina’s rights under the Speedy Trial Act and the Sixth Amendment were not

violated when the district court ordered a second mental-health evaluation prior to determining

Pina’s competency to stand trial because there were legitimate doubts about the accuracy of the

first evaluation. Additionally, the district court did not plainly err by using the Sixth Circuit

Pattern Criminal Jury Instructions and instructing the jury that “any means or facility of interstate

commerce includes the internet or telephone.” Finally, assuming arguendo that the district court

erred by admitting the country-of-origin labels affixed to the devices seized from Pina’s

residence in 2013 for the purposes of showing an interstate nexus, this was harmless error.

Therefore, we AFFIRM Pina’s conviction on all counts.




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