    Case: 12-51081    Document: 00512591149       Page: 1   Date Filed: 04/09/2014




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals
                                                                             Fifth Circuit
                                 No. 12-51081                              FILED
                                                                        April 9, 2014
                                                                      Lyle W. Cayce
                                                                           Clerk
UNITED STATES OF AMERICA,

                                           Plaintiff–Appellee,

versus

TREVIN ROUNDS,

                                           Defendant–Appellant.




                Appeal from the United States District Court
                     for the Western District of Texas




Before SMITH, DeMOSS, and HIGGINSON, Circuit Judges.
JERRY E. SMITH, Circuit Judge:


      Trevin Rounds was found guilty by a jury of being in possession of child
pornography in violation of 18 U.S.C. § 2252(a)(4) (Count One) and using a
facility of interstate commerce to persuade, induce, entice, or coerce a juvenile
to engage in sexual activity in violation of 18 U.S.C. § 2422(b) (Count Two). He
raises several issues on appeal, and we affirm.
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                                   No. 12-51081
                                          I.
      Before trial, Rounds moved to suppress “any and all photographic and/or
video evidence that was gathered by the seizure and subsequent search of his
phone.” The district court held an evidentiary hearing at which Rounds and
sheriff’s deputies Jeffery Whitson and Georgina Maritz testified. The court
made the following findings: (1) Because Whitson “could not have viewed the
contents of the phone without assistance from Defendant,” Rounds consented
to the search; and (2) “[b]ased on the totality of the circumstances . . . [,] consent
was freely and voluntarily given.” Accordingly, the court denied the motion to
suppress.
      Shortly before trial, the government indicated that it planned to call
Sheretta Trahan, Jane Doe’s godmother; because she had not been previously
listed as a witness, defense counsel objected. The court (1) continued the trial
for one hour to allow counsel an opportunity to meet with Rounds and Trahan
and (2) delayed her testimony for one day. An hour later, counsel informed the
court that he had been able to meet the witness and to confer with his client,
and the witness had answered his questions. Although the court had delayed
the witness from testifying for another day, because counsel told the court “I’m
ready to go forward,” Trahan testified the same day.
      Similarly, the night before trial, the government disclosed its intent to
introduce Tagged.com messages between Jane Doe and Rounds. Defense coun-
sel again objected to that late disclosure. In response, the court granted a one-
day continuance and again delayed, for one day, the government’s introduction
of that evidence. Again, defense counsel indicated that he was ready to go
forward.


                                               II.
      The following evidence was presented at trial: In February 2012, Rounds
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                                       No. 12-51081
contacted a fourteen-year-old female (“Jane Doe”), living in Houston, on the
social networking website Tagged.com. She and Rounds began texting. She
initially lied to Rounds about her age 1 but testified about several incidents that
made him aware of her real age. First, she acknowledged that the father of
one of her former classmates saw her with Rounds and told Rounds that she
was fourteen. Second, she ran away from her godmother’s house on Feb-
ruary 23, 2012. Before running away, Trahan asked Jane to place a call to
Rounds during which Trahan told Rounds that Jane was fourteen and to stay
away from her. Trahan’s testimony corroborates the phone call.
       In early March, after she ran away from home, Jane stayed approxi-
mately twelve nights with Rounds in a Houston hotel room and had sex there.
Around March 12, Jane and Rounds got into an argument about her talking to
other men online, including Brian Phea, who bought her a bus ticket from Hou-
ston to Amarillo. Rounds drove Jane to the bus station, and shortly after she
arrived in Amarillo, she and Phea went to Odessa, where Phea was abusive,
tasered her, and hit her, resulting in a ruptured eardrum. At some point in
Odessa, Jane wanted to get away from Phea and return to Houston; Rounds
agreed to drive to Odessa and pick her up from a motel where she was staying.
During that time, Jane and Rounds continued to communicate via text mes-
sages and phone calls.          Rounds eventually picked up Jane in Odessa on
March 17.
       Later that evening, Rounds’s vehicle was pulled over in Eden, Texas, for
a traffic violation. Whitson testified that he and his partner, Maritz, conducted
the traffic stop. Whitson stated that during the course of the stop he obtained
consent to search the vehicle and Rounds’s iPhone, which was in the vehicle.



       1 In their initial conversations, Jane asked Rounds to get her a fake identification card
indicating that she was eighteen years old. At that time, she told Rounds she was seventeen.
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                                No. 12-51081
At some point during the stop, Whitson decided to take Rounds and Jane to
the police station, where Whitson again looked through the iPhone. This
search uncovered a video that showed Rounds having intercourse with a young
woman later determined to be Jane Doe. Jane’s testimony confirmed that the
video, which was admitted as evidence, was of Rounds and her having sex.
Whitson also said that he seized a second cell phone—a flip phone that was
being used by Jane—from Rounds’s vehicle. Maritz’s testimony corroborated
much of Whitson’s.
      The government presented Lisa Upton as an expert in telephone cell site
analysis. She testified that she had performed an analysis on the phone num-
ber registered to the iPhone seized from Rounds. As part of that analysis, she
produced five maps pertaining to phone calls made from and received by
Rounds’s iPhone on March 17. Those maps showed that the iPhone was trav-
eling within Texas, having left the Houston area around 5:00 a.m. on March 17,
and arriving in Odessa about 1:00 p.m. Beginning at 12:20 a.m. on March 17,
Rounds’s iPhone had five consecutive incoming phone calls from the phone
number associated with Jane Doe, followed by two outgoing calls to Jane’s
phone number. Next, between 3:41 a.m. and 4:20 a.m., Rounds’s iPhone had
two outgoing calls to, and two calls from, Jane’s number.
      Heath Hardwick, a Special Investigative Agent for the Department of
Homeland Security, testified as an expert in computer forensics, including cell
phone forensics.     Hardwick analyzed the two phones seized during the
March 17 traffic stop and produced a report for the iPhone seized from Rounds.
The government introduced several text messages between Rounds and Jane.


                                     III.
      Rounds brings five challenges on appeal. First, he questions the suffi-
ciency of the evidence on Count Two. Second, he contends venue was not
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                                       No. 12-51081
proper in the Western District of Texas. Third, he maintains that he did not
have an adequate opportunity to prepare for trial because the government had
a material witness testify at trial without adequate notice to the defense and
did not timely disclose Exhibit 14. Fourth, Rounds avers that the government
failed to disclose Brady material 2 when it did not provide the defense a copy of
the notes made during Round’s initial arrest. Fifth, Rounds claims the court
erred in denying his motion to suppress.


                                              IV.
       The district court denied Rounds’s Federal Rule of Criminal Proce-
dure 29 motion, which challenged both the sufficiency of the evidence and
venue as to Count Two. By moving for a judgment of acquittal at the close of
the government’s case and at the close of all the evidence and by requesting
the jury to be instructed on venue, Rounds has preserved both of these issues
for appeal. 3


                                              A.
       “[R]eviewing courts must affirm a conviction if, after viewing the
evidence and all reasonable inferences 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.” United States v. Vargas-Ocampo,
2014 U.S. App. LEXIS 5575, at *2 (5th Cir. Mar. 26, 2014) (en banc) (citing
Jackson v. Virginia, 443 U.S. 307, 312 (1979) (emphasis in Jackson). “[I]t is



       2   See Brady v. Maryland, 373 U.S. 83 (1963).
       3See United States v. Frye, 489 F.3d 201, 207 (5th Cir. 2007); United States v. Santos,
203 F. App’x 613, 618 (5th Cir. 2006) (per curiam) (“A defendant may waive his objection to
venue if he fails to raise the issue before trial. However, the issue is not waived if the trial
testimony puts venue at issue, and the defendant objects or requests an instruction.”).
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                                      No. 12-51081
the responsibility of the jury—not the court—to decide what conclusions should
be drawn from evidence admitted at trial.” Cavazos v. Smith, 132 S. Ct. 2, 4
(2011). In assessing the sufficiency of the evidence, this court considers both
circumstantial and direct evidence. See United States v. Terrell, 700 F.3d 755,
760 (5th Cir. 2012), cert. denied, 133 S. Ct. 1834 (2013). “The evidence need
not exclude every reasonable hypothesis of innocence or be completely incon-
sistent with every conclusion except guilt, so long as a reasonable trier of fact
could find that the evidence established guilt beyond a reasonable doubt.” Id.
       Count Two charges Rounds with coercion and enticement in violation of
18 U.S.C. § 2422(b), which requires the government to prove that (1) Rounds
used a facility of interstate commerce to commit the offense; (2) he was aware
that Jane Doe was younger than eighteen; (3) by engaging in sexual activity
with Jane, he could have been charged with a criminal offense under Texas
law; and (4) he knowingly persuaded, induced, enticed, or coerced Jane to
engage in criminal sexual activity. 4 Focusing on the fourth element, Rounds
avers that the evidence does not suggest that he pressured and persuaded Jane
to come with him. According to Rounds, the record instead demonstrates that
Jane “practically had to beg him to get him to come” to Odessa. Rounds
therefore urges that he cannot have persuaded, induced, enticed, or coerced
Jane to engage in criminal sexual activity. In contrast, the government con-
tends that “[g]iven the continuing nature of the offense of coercion and entice-
ment, it was entirely reasonable for the jury to look at the totality of the cir-
cumstances and conclude that Rounds engaged in a coercive and enticing com-
munication with [Jane] while she was in Odessa.”


       4Rounds does not contest that he (1) had an illegal sexual relationship with Jane Doe;
(2) was aware of her age; and (3) used Tagged.com and text messages to communicate with
her. We, therefore, do not address the sufficiency of the evidence as to the first three
elements.
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                                         No. 12-51081
       Evidence can establish that a defendant intended to induce, persuade,
entice, or coerce a minor by sending the minor sexually explicit messages. In
United States v. Lundy, 676 F.3d 444, 447 (5th Cir. 2012), for example, we
concluded that a rational jury could have found that the defendant enticed a
minor in light of the fact that he “made contact with and engaged in a string of
sexually laced text message and phone conservations with a girl he thought to
be 15 year[s] old.” Similarly, in United States v. Barlow, 568 F.3d 215, 219 (5th
Cir. 2009), we affirmed the conviction, observing that the defendant “emailed
[the minor] multiple pornographic pictures . . . [and] repeatedly asked her to
send explicit pictures of herself” and that “the online conversations were usu-
ally about sex . . . .” 5 “Whether there was inducement, persuasion, or entice-
ment is a question of fact for the jury to decide.” Lundy, 676 F.3d at 450. 6 Even
if the defendant does not explicitly reference sex in his communications, a jury
can find that he intended to induce, persuade, entice, or coerce the minor based
on the broader context of the communications.
       Contrary to Rounds’s suggestion, the trial record does not compel the
finding that Jane Doe begged him to come get her from Odessa. 7 And, in any



       5See also United States v. Broussard, 669 F.3d 537, 550 (5th Cir. 2012); United States
v. Van Velkinburgh, 342 F. App’x 939, 941 (5th Cir. 2009); United States v. Farner, 251 F.3d
510, 511 (5th Cir. 2001).
       6   See also United States v. Goetzke, 494 F.3d 1231, 1235 n.3 (9th Cir. 2007) (per curiam)
(“To ‘persuade’ is ‘to induce by argument, entreaty, or expostulation into some mental posi-
tion’; to ‘induce’ is ‘to move and lead (as by persuasion or influence)’; and to ‘entice’ is ‘to draw
on by arousing hope or desire.’” (quoting WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY
757, 1154, 1687 (unabridged ed. 1993))).
       7 After a few days of Jane’s returning to Odessa, Rounds initiated the conversation by
asking her via text, “u coming back or what?” Shortly thereafter, Rounds wrote, “I come get
you.” Next, after asking Jane whether she trusted Rounds or Phea, Rounds wrote, “So go let
me come or not.” A few hours later, when Jane agreed to let Rounds come get her, he states,
“so u sure u want to come back to me??” and “lol u like the nigga u with.” Jane responded,
“bye stp textin me.” After a brief period, Rounds initiated the conversation again, asking,
“u not talking to me no more?” It was not until hours later on the morning of March 17 (and
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                                       No. 12-51081
event, our inquiry focuses on the defendant’s intent, not the minor’s. 8
       The government presented extensive evidence demonstrating that
Rounds and Jane had an illegal sexual relationship that continued for a sub-
stantial period of time. Rounds does not challenge that. Therefore, although
many of the text messages from Rounds do not appear to be sexually explicit,
the jury could have understood them in light of Rounds and Jane’s illegal sex-
ual relationship. Drawing every inference in favor of the verdict, a jury could
have understood these messages as Rounds’s attempt to control and continue
the criminal sexual relationship. Moreover, Rounds sent Jane at least one
sexually-explicit message: “Would you let a man lick your anal area?” As the
government emphasizes, that message was the “opening salvo,” by which the
jury could have understood the entire relationship.
       In light of that relationship, the sexually-explicit Tagged.com message,
and numerous other text messages designed to have Jane return to him, a jury
could have reasonably believed that Rounds intended to coerce her to continue
having a sexual relationship with him.                There is sufficient evidence on
Count Two.


                                             B.
       “We review the denial of a motion for judgment of acquittal de novo.”
United States v. Garcia Mendoza, 587 F.3d 682, 686 (5th Cir. 2009). Where
the motion questions venue, we affirm the denial “if, viewing all the evidence



after Jane had sent Rounds the address at the hotel in Odessa) that she sent him a text
message asking him to answer his phone because Phea had assaulted her.
       8 See United States v. Olvera, 687 F.3d 645, 647–48 (5th Cir. 2012) (per curiam) (hold-
ing that the defendant need not communicate directly with the minor victim); Barlow, 568
F.3d at 219 n.10 (5th Cir. 2009) (“To be clear, the statute does not require that the sexual
contact occur, but that the defendant sought to persuade the minor to engage in that
contact.”).
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                                       No. 12-51081
in the light most favorable to the government, a rational jury could conclude,
from the evidence presented at trial, that the government established venue
by a preponderance of the evidence.” Id.
       “The Trial of all Crimes . . . shall be held in the State where the said
Crimes shall have been committed.” U.S. CONST. art. III, § 2, cl. 3. “In all
criminal prosecutions, the accused shall enjoy the right to a speedy and public
trial, by an impartial jury of the State and district wherein the crime shall
have been committed.” U.S. CONST. amend. VI. 9 To determine whether venue
is appropriate, we perform a two-step inquiry: “[A] court must initially identify
the conduct constituting the offense (the nature of the crime) and then discern
the location of the commission of the criminal acts.”                    United States v.
Rodriguez-Moreno, 526 U.S. 275, 279 (1999). “To identify the conduct con-
stituting the offense, we scrutinize the statute of conviction.” United States v.
Clenney, 434 F.3d 780, 781 (5th Cir. 2005).
       Unless the charged statute provides otherwise, a proper venue of a
continuing offense 10 is “any district in which such offense was begun, contin-
ued, or completed.” 18 U.S.C. § 3237(a). Accordingly, venue can be based on
“evidence showing the commission of any single act that was part of the begin-
ning, continuation, or completion of the crime.” United States v. Fells, 78 F.3d
168, 171 (5th Cir. 1996) (emphasis added). Circumstantial evidence can suffi-
ciently establish venue. See United States v. Loe, 248 F.3d 449, 465 (5th Cir.
2001).




       9 “Unless a statute or these rules permit otherwise, the government must prosecute
an offense in a district where the offense was committed.” FED. R. CRIM. P. 18.
       10A continuing offense is “a continuous, unlawful act or series of acts set on foot by a
single impulse and operated by an unintermittent force.” United States v. Asibor, 109 F.3d
1023, 1031 (5th Cir. 1997) (quoting United States v. Midstate Horticultural Co., 306 U.S. 161,
166 (1939)).
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                                        No. 12-51081
       Section 2422(b) constitutes a continuing offense. See United States v.
Byrne, 171 F.3d 1231, 1235 n.2 (10th Cir. 1999). For proper venue, therefore,
the government needs to have put forward sufficient evidence showing that
Rounds committed “any single act that was part of the beginning, continuation,
or completion” of Count Two in the Western District. 11 To this end, Count Two
alleges “on or about March 17, 2012, in the Western District of Texas and else-
where, [Rounds] did use a facility of interstate and foreign commerce, to wit: a
cellular telephone, to knowingly persuade, induce, and entice an individual
who had not attained the age of 18 years to engage in sexual activity . . . .”
       The government points to two ways to establish venue in the Western
District: (1) phone calls and text messages sent on or about March 17 from
Rounds to Jane, who was in Odessa in that district; and (2) Rounds’s presence
in Odessa on or about March 17. Because the phone calls and text messages
sent on or about March 17 to the minor who was in the Western District con-
stitute acts that were part of the completion of Count Two, the government
sufficiently established venue. 12 We therefore do not need to address whether
Rounds’s presence in Odessa sufficiently established venue.


                                               V.
       Rounds argues that he did not have an adequate opportunity to prepare
for trial because the government had a “material witness,” Trahan, testify
without adequate notice to the defense. Rounds similarly complains that the




        Eden (Concho County) is in the Northern District; Odessa (Ector County) is in the
       11

Western District; and Houston (mostly Harris County) is in the Southern District.
       12 See United States v. Caldwell, 16 F.3d 623, 625 (5th Cir. 1994) (“[I]t was not in error
for the trial judge to find venue in the district in which the calls were received.”); United
States v. Lewis, 676 F.2d 508, 511 (11th Cir. 1982); United States v. Strickland, 493 F.2d 182,
187 (5th Cir. 1974).
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                                  No. 12-51081
government did not timely disclose Exhibit 14—the Tagged messages between
Rounds and Jane Doe. Rounds claims that the untimely disclosure prejudiced
his defense by disallowing him an opportunity to investigate. Rounds can be
understood to be making one of two arguments. One, he could be maintaining
that the district court erred by allowing the government to introduce this
evidence in light of the delayed disclosure. Or two, he could be suggesting that
the court erred by not granting him another continuance to give him more time
to investigate the government’s evidence.


                                       A.
      Beginning with the first theory, this court “review[s] a district court’s
evidentiary rulings for abuse of discretion, subject to harmless-error analysis.”
United States v. Girod, 646 F.3d 304, 318 (5th Cir. 2011) (citation and internal
quotation marks omitted). “[F]or any of the evidentiary rulings to be reversible
error, the admission of the evidence in question must have substantially pre-
judiced [the defendant’s] rights.” United States v. Sanders, 343 F.3d 511, 519
(5th Cir. 2003). We consider any error to be harmless when “substantial evi-
dence supports the same facts and inferences as those in the erroneously
admitted evidence.” United States v. El-Mezain, 664 F.3d 467, 526 (5th Cir.
2011).
      First, assuming Rounds has challenged the admission of Trahan’s testi-
mony, he needs to demonstrate that its admission substantially prejudiced his
rights. Even assuming he could somehow show that the court abused its dis-
cretion, the decision to allow Trahan to testify is not reversible error. The gov-
ernment called Trahan to prove that Rounds knew Jane Doe’s age. The trial
record, however, contains other substantial evidence demonstrating that




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                                      No. 12-51081
Rounds knew she was younger than eighteen. 13 Second, assuming Rounds
intends to challenge the admission of Exhibit 14, and further assuming he even
preserved this issue, he has not provided any argument or authority demon-
strating that the court abused its discretion in allowing this evidence in spite
of the delayed disclosure.


                                            B.
       Addressing Rounds’s second theory, we consider the decision whether to
grant a continuance to be within the sound discretion of the trial court. See
United States v. Shaw, 920 F.2d 1225, 1230 (5th Cir. 1991). We reverse a
denial “only when the district court has abused its discretion and the defendant
can establish that he suffered serious prejudice.” United States v. Castro, 15
F.3d 417, 423 (5th Cir. 1994). In assessing whether the court abused its discre-
tion, this court considers the “totality of the circumstances,” including
    (a) the amount of time available; (b) the defendant’s role in shortening
    the time needed; (c) the likelihood of prejudice from denial; (d) the
    availability of discovery from the prosecution; (e) the complexity of the
    case; (f) the adequacy of the defense actually provided at trial; and
    (g) the experience of the attorney with the accused.

United States v. Walters, 351 F.3d 159, 170 (5th Cir. 2003).
       The district court did in fact grant a one-day continuance to both
Trahan’s testimony and the admission of Exhibit 14. After an hour’s delay in
the start of the trial, defense counsel confirmed multiple times on the record
that he was “ready to go forward” as to both the testimony and the admission
of Exhibit 14. Insofar as Rounds now believes he was entitled to a further


       13 For example, Jane Doe testified that, in their initial conversations, she asked
Rounds to get her a fake identification card indicating that she was eighteen; at that time,
she told Rounds she was seventeen. She also testified about an incident in which one of her
former classmate’s father saw her with Rounds and told Rounds she was fourteen.
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                                 No. 12-51081
continuance, he invited any possible error by conceding he was ready to go for-
ward. See United States v. Green, 272 F.3d 748, 754 (5th Cir. 2001).


                                       VI.
      Rounds contends that the government violated Brady when it failed to
provide the defense with a copy of the notes that Maritz made the night of
Rounds’s initial arrest. Maritz used the notes during her testimony at the sup-
pression hearing, which revealed that the notes included (1) the passcode for
Rounds’s cellphone; (2) the time at which Rounds consented to the search of
his cellphone; and (3) “the initial identifying information from the juvenile.”
      Because Rounds did not raise a Brady argument in the district court, we
review only for plain error. See United States v. Mares, 402 F.3d 511, 520 (5th
Cir. 2005).   The plain-error standard requires first that there be error, a
question we consider de novo. United States v. Garza-Lopez, 410 F.3d 268,
272–73 (5th Cir. 2005). “To establish a Brady violation, the defendant must
prove that (1) the prosecution suppressed evidence, (2) it was favorable to the
defendant, and (3) it was material.” United States v. Brown, 650 F.3d 581,
587–88 (5th Cir. 2011). Whether the prosecutor acted in good faith is not rele-
vant. See Kyles v. Whitley, 514 U.S. 419, 432 (1995).
      Rounds has not shown error, plain or otherwise. Even if the government
somehow suppressed evidence, Rounds has not demonstrated that the notes
would have been exculpatory. The cellphone passcode and the time notation
demonstrate only that Rounds consented to the search of his cellphone, a fact
not favorable to him. The notes identifying Jane Doe similarly would not have
helped him. The Brady claim has no merit.


                                      VII.
      Rounds challenges the search of his cellphone, claiming that (1) he never
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                                  No. 12-51081
consented to it, (2) even if he did, such consent was not voluntary, and
(3) because the arresting officers accessed more than merely his text-message
and call records, the full search exceeded the scope of a search incident to a
lawful arrest. Rounds contends any evidence obtained was illegal fruit.
      On appeal of the denial of a motion to suppress, this court reviews the
district court’s fact findings for clear error and its legal conclusions de novo.
See United States v. Gomez, 623 F.3d 265, 268 (5th Cir. 2010). “A factual
finding is not clearly erroneous as long as it is plausible in light of the record
as a whole.” United States v. Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001).
Where a court has based its denial on live testimony, “the clearly erroneous
standard is particularly strong because the judge had the opportunity to
observe the demeanor of the witnesses.” United States v. Santiago, 410 F.3d
193, 197 (5th Cir. 2005). Finally, we review the evidence in the light most
favorable to the government as the prevailing party. Id.
      Unless an exception applies, an officer, before conducting a search, must
(1) have probable cause to believe that contraband or evidence of a crime will
be found in a particular place and (2) obtain a warrant. A search conducted
pursuant to consent, however, remains one of the well-settled exceptions to the
Fourth Amendment’s warrant and probable-cause requirements.                United
States v. Tompkins, 130 F.3d 117, 121 (5th Cir. 1997). To rely on this exception,
the government must prove, by a preponderance of the evidence,that the
defendant voluntarily consented. Id. We treat the voluntariness of consent as
a factual finding that we review for clear error, United States v. Solis, 299 F.3d
420, 436 (5th Cir. 2002), considering the following non-exclusive six factors:
   (1) the voluntariness of the defendant’s custodial status; (2) the pres-
   ence of coercive police procedures; (3) the extent and level of the defen-
   dant’s cooperation with the police; (4) the defendant’s awareness of his
   right to refuse to consent; (5) the defendant’s education and intelli-
   gence; and (6) the defendant’s belief that no incriminating evidence will

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                                       No. 12-51081
    be found.

United States v. Jones, 234 F.3d 234, 242 (5th Cir. 2000). No single factor is
dispositive. See id. The prosecutor’s “burden cannot be discharged by showing
no more than acquiescence to a claim of lawful authority.” United States v.
Jenkins, 46 F.3d 447, 451 (5th Cir. 1995) (quoting Bumper v. North Carolina,
391 U.S. 543, 548–49 (1968)). Consent may not be “the product of duress or
coercion, express or implied . . . .” United States v. Mendenhall, 446 U.S. 544,
557 (1980).
       Rounds’s first claim—that he never consented to any search of his
cellphone—amounts to nothing more than a repetition of the factual argu-
ments made during the suppression hearing and rejected by the district court.
Although Rounds disagrees with the court’s credibility determination, he pro-
vides no reason why the court clearly erred.
       As to his second contention, Rounds argues that the consent cannot
“have been voluntary and intelligent as to the sexually explicit videos since
[the arresting officers’] discussion was directed to the issue of narcotics.” 14 In
essence, Rounds avers that consent cannot be voluntary either (a) because pol-
ice officers did not inform him for what purpose they wished to search his
phone or (b) because they asked to search his phone to find evidence of a differ-
ent crime. Rounds, however, does not point to any case that supports reversal
under either theory. And, in fact, the record reveals that the officers told him
that they wanted to examine the phone for evidence of sexual exploitation of
Jane Doe. The district court did not clearly err in determining that Rounds
consented to the search and that the consent was voluntarily given.
       Rounds’s third argument—that any search of a phone beyond the text


       14Rounds does not dispute any other aspect of the district court’s extensive discussion
on voluntariness.
                                             15
    Case: 12-51081       Document: 00512591149          Page: 16     Date Filed: 04/09/2014



                                       No. 12-51081
messages or call records exceeds the scope of a search incident to a lawful
arrest—has no bearing on this case. The district court relied on the consent
exception, not the search-incident-to-lawful-arrest exception. 15
       The judgment of conviction is AFFIRMED.




       15 Rounds may instead be attempting to reason that the search of photographs and
videos in his cellphone falls outside the scope of his consent. He did not make that argument
in the district court and has not adequately briefed it on appeal, so it is waived. See United
States v. Beaumont, 972 F.2d 553, 563 (5th Cir. 1992).
                                             16
