                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAY 24 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-10077

                Plaintiff-Appellee,             D.C. No.
                                                4:15-cr-01388-RCC-BPV-1
 v.

BREANA LORRAINE VANDYCK, AKA                    MEMORANDUM*
Breana L. VanDyck,

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Arizona
                    Raner C. Collins, Chief Judge, Presiding

                             Submitted May 14, 2018**
                             San Francisco, California

Before: WALLACE and N.R. SMITH, Circuit Judges, and BATTS,*** District
Judge.

      Breana VanDyck appeals her jury conviction for one count of mailing child



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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 Deborah A. Batts, United States District Judge for the
Southern District of New York, sitting by designation.
pornography in violation of 18 U.S.C. §§ 2252(a)(1) and (b)(1), contending that

the district court (1) erred in denying her motion for judgment of acquittal under

Federal Rule of Criminal Procedure 29, and (2) abused its discretion in denying her

motion for a mistrial based on prosecutorial misconduct. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

      We begin with VanDyck’s argument that the district erred in denying her

Rule 29 motion for judgment of acquittal. Where, as here, the defendant preserves

her claim of insufficient evidence by making a motion under Rule 29 at the close

of evidence, “we review de novo the sufficiency of the evidence supporting the

conviction.” United States v. Tucker, 641 F.3d 1110, 1118 (9th Cir. 2011). We

must determine whether “after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.” Id. at 1118–19 (quoting United States v.

Nevils, 598 F.3d 1158, 1163–64 (9th Cir. 2010)).

      The district court did not err in denying VanDyck’s motion for judgment of

acquittal. To find VanDyck guilty of mailing child pornography in violation of 18

U.S.C. §§ 2252(a)(1) and (b)(1), the jury had to determine that the photographs at

issue involved the use of a minor engaging in “sexual explicit conduct.” 18 U.S.C.

§ 2252(a)(1). “Sexually explicit conduct,” in turn, includes actual or simulated

“lascivious exhibition of the genitals or pubic area of any person.” 18 U.S.C. §


                                          2
2256(2)(A)(v). The photos named in the indictment were sufficient for the jury to

make the required “lascivious exhibition” determination. They depicted a naked

minor female. In one of the photos, the child’s legs are posed in a way that exposes

her genitalia; in the other, the child is lying on a bed and the photo depicts her

body from the neckline to the pubic area. Viewed in the light most favorable to the

prosecution, this evidence was sufficient for a rational juror to determine that the

photos depicted “lascivious exhibition of the genitals or pubic area,” 18 U.S.C. §

2256(2)(A)(v), and therefore that the prosecution established the “sexually explicit

conduct” element of the charge beyond a reasonable doubt.

      We turn now to VanDyck’s argument that she is entitled to a new trial based

on prosecutorial misconduct. VanDyck argues that the government’s

characterization of the child depicted in the photos as a “known victim” of child

exploitation who had been “rescued,” in combination with Agent Campbell’s use

of the organizational name “National Center for Missing and Exploited Children”

despite a court ruling that he could only use the acronym, inflamed the jury and

materially affected the verdict.

      “When there are allegations of prosecutorial misconduct, we review for an

abuse of discretion a trial court’s denial of a motion for a mistrial and denial of a

motion for a new trial.” United States v. Washington, 462 F.3d 1124, 1135 (9th

Cir. 2006). Where, as here, a defendant fails to object timely to prosecutorial


                                           3
misconduct, plain error review applies. United States v. Reyes, 660 F.3d 454, 461

(9th Cir. 2011). “When reviewing for prosecutorial misconduct, we consider in the

context of the entire trial whether it is more probable than not that the prosecutor’s

conduct materially affected the fairness of the trial.” Id. (internal quotation and

citation omitted).

      The district court did not abuse its discretion in denying VanDyck a mistrial.

First, the government’s description of the photos as involving a “known victim” of

child exploitation who had been “rescued” did not seriously affect the fairness of

the trial because the government did not suggest that VanDyck herself participated

in producing the photos or exploiting the child. Second, Agent Campbell’s use of

the organizational name “National Center for Missing and Exploited Children”

during his testimony occurred only once and was part of Campbell’s broader

testimony regarding verification of the photos. In light of the government’s strong

case against VanDyck, it was not “more probable than not” that the aggregate

effect of the alleged prosecutorial misconduct materially affected the jury’s verdict.

See United States v. Nobari, 574 F.3d 1065, 1082 (9th Cir. 2009). Accordingly,

there was no plain error and the district court did not abuse its discretion in

denying VanDyck a mistrial.

      AFFIRMED.




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