               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 17a0241n.06

                                       Case No. 16-6162                               FILED
                                                                                 Apr 27, 2017
                         UNITED STATES COURT OF APPEALS                     DEBORAH S. HUNT, Clerk
                              FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                           )
                                                    )
       Plaintiff-Appellee,                          )
                                                    )      ON APPEAL FROM THE UNITED
v.                                                  )      STATES DISTRICT COURT FOR
                                                    )      THE EASTERN DISTRICT OF
KEVIN LABONA,                                       )      KENTUCKY
                                                    )
       Defendant-Appellant.                         )


       BEFORE: GIBBONS, COOK, and GRIFFIN, Circuit Judges.

       COOK, Circuit Judge. Defendant Kevin Labona appeals his conviction and sentence for

possessing and distributing child pornography. We AFFIRM.

                                               I.

       Background Facts.      In December 2012, Labona walked into the FBI’s Lexington,

Kentucky, office to report that someone had emailed child pornography to his cellular phone.

During his meeting with Special Agent Kimberly Kidd, Labona showed her the images and

offered to join a sting operation to capture the perpetrators. Agent Kidd declined Labona’s

proposal and instead informed him that she needed to confiscate the phone. He acquiesced,

signing a consent form that permitted the FBI to search and analyze the phone’s stored data.

       Once Labona left the office, Agent Kidd performed a forensic examination of the phone’s

memory disk and discovered “approximately 50 images of child pornography.” After discussing
Case No. 16-6162, United States v. Labona


the photos with an Assistant United States Attorney (“AUSA”), Agent Kidd and the AUSA

agreed not to prosecute Labona because “he was homeless, and . . . voluntarily brought this

information in to [the government].” At no point did they relay their decision to Labona.

       They reversed course on their non-prosecution decision when an undercover FBI agent

(who was posing as a child pornographer in a sting operation) tipped them off to Labona’s

suspicious activities. Over a two-week period in October 2013, Labona emailed explicit photos

of young girls to the agent, solicited him to respond in kind, and provided advice on “grooming,”

a technique whereby a child molester manipulates a minor into a sexual relationship. After

tracing Labona’s location to Lexington, the agent handed over the evidence to Agent Kidd.

       Agent Kidd and the AUSA promptly opened an investigation into Labona’s activities,

and by October 2014, they had obtained a grand-jury indictment and an arrest warrant. They

then learned from Labona’s ex-wife that he often stayed with “Jane Doe,” a longtime friend, in

Logan County, Ohio. With the local sheriff’s help, they tracked Labona down and arrested him

as he was walking with a seven-year-old girl outside the Doe family’s trailer.

       Procedural Facts. The government charged Labona with one count of possessing child

pornography, in violation of 18 U.S.C. § 2252(a)(4)(b), for the images Agent Kidd found on his

phone, and two counts of “distribut[ing] visual depictions . . . of a minor engaging in sexually

explicit conduct,” in violation of 18 U.S.C. § 2252(a)(2), for the emails he sent to the undercover

agent. Labona waived his right to a jury trial.

       The district court found Labona guilty on all three counts in the ensuing bench trial. It

sentenced him to 240 months’ imprisonment for possession of child pornography and 480

months’ imprisonment for each count of distribution of child pornography, all to be served

concurrently. Labona timely appealed his conviction and sentence.


                                                  -2-
Case No. 16-6162, United States v. Labona


                                                II.

        Labona contends that the district court should have dismissed the charge of possessing

child pornography because “the FBI . . . promise[d] not to prosecute [him]” for the images found

on his phone. But since the FBI in fact made no such promise, Labona’s informal-immunity

claim fails.

        “An agreement not to prosecute is contractual in nature, and subject to contract law

standards.” United States v. Fitch, 964 F.2d 571, 574 (6th Cir. 1992) (citing United States v.

Brown, 801 F.2d 352, 354 (8th Cir. 1986)). Labona must therefore prove that in exchange for

giving up his phone, the government made a written or oral promise not to prosecute him. See

Rowe v. Griffin, 676 F.2d 524, 527–28 (11th Cir. 1982) (requiring that the government honor a

promise of immunity when “(1) an agreement was made; (2) the defendant has performed on his

side; and (3) the subsequent prosecution is directly related to offenses in which the defendant,

pursuant to the agreement, either assisted with the investigation or testified for the government”

(emphasis added)); see also United States v. Turner, 936 F.2d 221, 223 (6th Cir. 1991)

(“[I]nformal immunity arises by way of assurances [from] prosecutors, either orally or by letter,

to a potential grand jury witness that he will be immune from any prosecution based on [his]

testimony.”).

        Labona argues for the first time on appeal that the government violated the terms of an

informal-immunity agreement. We therefore review his claim for plain error. Cf. United States

v. Barnes, 278 F.3d 644, 646 (6th Cir. 2002) (applying plain-error analysis to a plea-agreement

challenge first raised on appeal). To succeed on plain-error review, Labona must show a plain or

obvious error that affects his substantial rights and seriously affects the fairness, integrity, or

public reputation of his judicial proceedings. Id. (citation omitted).


                                                -3-
Case No. 16-6162, United States v. Labona


       In his appellate brief, Labona cites testimony that Agent Kidd and the AUSA decided—

outside of Labona’s presence—that they “would not prosecute him for [the pornography on his

phone].” He then asserts, without any factual support, that the government “conveyed” this

decision to him in exchange for his relinquishing the phone.

       The timeline of events refutes Labona’s assertion of an immunity agreement. Agent Kidd

and the AUSA decided not to prosecute Labona after he had already turned over the phone and

left the office. Agent Kidd therefore could not have offered the “immunity” that Labona claims,

which did not exist at the time she confiscated his phone. Moreover, Agent Kidd testified that

Labona agreed to give up his phone because she “told [him], that since [she] knew his phone

contained child pornography, [she] would not be able to let him leave with it.” In short, the

record reveals no government action suggesting a promise not to prosecute Labona.

       Perhaps realizing the futility of his argument, Labona changes tack, insisting that under

United States v. Streebing, 987 F.2d 368 (6th Cir. 1993), he need not prove that “the [non-

prosecution] decision . . . be given or conveyed to the defendant.” Labona misreads Streebing.

In that case, the record was unclear about whether the government had promised the defendant

immunity. Id. at 371. This court therefore assumed, only for the sake of argument, that the

government had made a promise so we could analyze whether to hold it to its bargain. Id. at

371–73. Streebing therefore offers no support for Labona’s position.1

       Because he cannot establish that the government communicated any commitment or

assurance not to prosecute him, we find no error, plain or otherwise.




       1
        Labona also relies on two out-of-circuit cases, but the facts in each show that the
government had conveyed a promise to the defendant. United States v. Kettering, 861 F.2d 675,
676–77 (11th Cir. 1988); Johnson v. Lumpkin, 769 F.2d 630, 633 (9th Cir. 1985).
                                               -4-
Case No. 16-6162, United States v. Labona


                                                III.

       Labona also challenges the district court’s admission of Minor A’s testimony about

Labona’s prior acts of molestation, arguing that the testimony’s unfair prejudice outweighed its

probative value. See Fed. R. Evid. 403. Additionally, Labona asserts that the court’s allegedly

erroneous pretrial evidentiary ruling induced him to waive his right to a jury trial. We find no

merit to either claim.

       We review a district court’s evidentiary rulings for abuse of discretion. United States v.

Seymour, 468 F.3d 378, 386 (6th Cir. 2006) (citing United States v. Talley, 164 F.3d 989, 998

(6th Cir. 1999)). A court abuses its discretion “when [it] relies on clearly erroneous findings of

fact, improperly applies the law, or employs an erroneous legal standard, . . . or . . . when we are

left with a definite and firm conviction that [it] committed a clear error of judgment.” United

States v. Miner, 774 F.3d 336, 348 (6th Cir. 2014) (internal quotation marks and citations

omitted).

       Before trial, the government notified Labona that it intended to introduce the testimony of

Minors A, B, C, and D as evidence of Labona’s prior acts of molestation. Labona moved to

exclude the evidence, but the district court declared it admissible under Federal Rule of Evidence

414, which permits the prosecution to introduce a defendant’s prior acts of child molestation

when relevant to a child-pornography case. See Fed. R. Evid. 414(a), (d)(2)(B).

       The court’s evidentiary order also applied a Rule 403 analysis to the proposed testimony.2

Although it acknowledged the danger of prejudice given that the crime of possessing child

pornography, unlike molestation, does not necessarily entail “direct physical contact with a

       2
          Labona also contends that the district court erred under Federal Rule of Evidence 414
but fails to develop this argument. He therefore waives his Rule 414 challenge. United States v.
Layne, 192 F.3d 556, 566–67 (6th Cir. 1999) (“[I]ssues adverted to in a perfunctory manner . . .
are deemed waived.”) (citation and internal quotation marks omitted).
                                               -5-
Case No. 16-6162, United States v. Labona


minor,” the court held that the probative value of the minors’ proposed statements outweighed

the prejudicial effect under the factors described in United States v. LeMay, 260 F.3d 1018,

1027–28 (9th Cir. 2001). It found Labona’s past molestation similar to the charged conduct

(especially since both involved similarly aged girls); close in time to the incidents of possession

and distribution; frequent enough to suggest a “pattern of behavior”; unaffected by any

intervening circumstances; and “practically necessary” to prove mens rea because “Labona

[would likely] assert he did not intend to perform the criminal acts alleged.” See id. After the

court’s ruling, Labona waived his right to a jury.

       At trial, the court reversed its pretrial evidentiary ruling once it heard Minor A’s

testimony. It noted that aside from statements about Labona’s nickname (which tied him to the

email account from which he contacted the undercover agent) and his showing pornography to

Minor A, it would disregard the remarks about molestation because of their limited relevance to

the possession or distribution charges. The district court also urged the prosecution to withhold

the remaining minors’ testimony.

       Although Labona contends that Minor A’s trial testimony was inadmissible due to its

prejudicial nature and “weak” probative value, courts worry less about prejudicial effects in

bench trials. See United States v. Hall, No. 98-6421, 2000 WL 32010, at *2 (6th Cir. Jan. 4,

2000) (per curiam) (“In bench trials, the application of the unfair prejudice portion of Rule 403

has been seen as an unnecessary and ‘useless procedure.’” (citing 22 Charles Alan Wright &

Kenneth W. Graham, Jr., Federal Practice & Procedure § 5213 (1978 & Supp. 1999))); see also

Gulf States Utils. Co. v. Ecodyne Corp., 635 F.2d 517, 519 (5th Cir. 1981) (finding that the

unfair prejudice portion of Rule 403 “has no logical application to bench trials”). Additionally,




                                               -6-
Case No. 16-6162, United States v. Labona


the court further minimized any prejudice when it disregarded Minor A’s statements about

molestation.

        As for Labona’s argument that the court’s pretrial decision to admit the testimony of

Minors A–D improperly induced his jury-trial waiver, Labona again shows no error. The district

court acted within its discretion when it decided before trial to admit the evidence under Rule

403, reasoning that Labona would likely raise the defense that “he did not intend to perform the

criminal acts alleged.” At trial, the court left open the possibility of letting the minors testify if

Labona in fact raised that defense, even as the court urged the prosecutor to otherwise withhold

the testimonial evidence (which the prosecutor did).

        Moreover, a court is well within its discretion to reverse a pretrial evidentiary ruling to

account for the changing dynamics of a trial. See United States v. Hurd, No. 92-5988, 1993 WL

389944, at *3 (6th Cir. Oct. 1, 1993) (per curiam) (“Under Sixth Circuit precedent, a ruling on a

motion in limine is no more than a preliminary, or advisory, opinion which falls entirely within

the discretion of the district court. The trial court is permitted to change its ruling during the

trial.” (citing United States v. Luce, 713 F.2d 1236, 1239 (6th Cir. 1983))). And because he

knowingly, voluntarily, and intelligently waived his right to a jury trial, Labona must accept the

benefits and risks of his choice, including the possibility that the district court would later change

its pretrial evidentiary ruling.

        We thus find that the district court did not abuse its discretion.

                                                 IV.

        Finally, Labona challenges his 480-month sentence—effectively a life sentence given his

age—as substantively unreasonable because the district court gave “too much weight to the

allegations of [his] alleged misconduct involving Minor[s] A, B, C and D.” But considering the


                                                 -7-
Case No. 16-6162, United States v. Labona


district court’s desire to protect the public, the seriousness of his crimes, his recent history of

molesting children, and the lack of mitigating circumstances, Labona has not demonstrated any

unreasonableness.

          We review a district court’s sentencing determination for substantive reasonableness

“under a deferential abuse-of-discretion standard.” United States v. Dudeck, 657 F.3d 424, 431

(6th Cir. 2011) (quoting Gall v. United States, 552 U.S. 38, 41 (2007)). “[A] sentence may be

substantively unreasonable where the district court selects the sentence arbitrarily, bases the

sentence on impermissible factors, fails to consider pertinent [18 U.S.C.] § 3553(a) factors, or

gives an unreasonable amount of weight to any pertinent factor.” United States v. Sedore,

512 F.3d 819, 823 (6th Cir. 2008) (quoting United States v. Liou, 491 F.3d 334, 337 (6th Cir.

2007)).     Here, Labona claims that the court placed too much weight on allegations of

molestation, but does not specify which § 3553(a) factors this affects.

          In applying the § 3553(a) factors, the district court found that his child pornography

possession constituted “one of the most serious [it had] seen.” It noted that Labona’s possession

and viewing of child pornography, itself a “serious crime [that] does a lot of harm,” went beyond

a single incident of misconduct. Rather, it made up one part of a longstanding pattern of acting

out the sexual abuse depicted in the images he collected. In 1986, for example, he was convicted

of taking “[i]ndecent [l]iberties” with his own sixteen-year-old daughter. And at the time of his

arrest, officers caught him walking with a seven-year-old girl whom (investigators later learned)

Labona had inappropriately touched and kissed on several occasions; slept next to multiple

times; showed child pornography; and attempted to lure into engaging in sexual acts. Labona

perpetrated similar acts with three of the girl’s friends, all of whom were less than twelve years

old.


                                               -8-
Case No. 16-6162, United States v. Labona


       Labona made his behavior even more reprehensible by spinning a “web of deceit” to

mask his wrongdoing. As the district court discussed in the sentencing hearing, Labona took

advantage of Jane Doe—a woman facing the hardships of poverty, the burden of raising a

family, and a troubled marriage—by giving her money and “ingratiat[ing] himself . . . so he

would have unfettered, unsupervised access to her children.” He also employed a ruse to hide

his child pornography in plain sight, telling the Doe family that he worked as a government

agent—under the supervision of Agent Kidd and the FBI, no less—catching pedophiles. So

effective was his deception that he convinced Doe and her husband to thwart a federal

investigation and obstruct justice by destroying a second cell phone that contained more child

pornography.    Finally, the court highlighted Labona’s brazen effort to shield himself from

prosecution by pretending that the pornography on his phone “had been [f]oisted upon him with

no effort on his own part.”

       The district court concluded that the depravity of Labona’s offense, his inability to

control himself, his willingness to con anyone in “pursuing his interest in child sexual contact,”

and the danger he presents to the public all warranted the maximum sentence allowable under

federal law. See 18 U.S.C. § 2252(b)(1)–(2). We find the court’s sentence substantively

reasonable and thus discern no abuse of discretion.

                                               V.

       We AFFIRM Labona’s conviction and sentence.




                                              -9-
