                           In the

United States Court of Appeals
              For the Seventh Circuit

No. 10-2192

U NITED STATES OF A MERICA,
                                                Plaintiff-Appellee,
                               v.

M ICHAEL R OUX,
                                            Defendant-Appellant.


           Appeal from the United States District Court
               for the Central District of Illinois.
           No. 09 CR 10022—Michael M. Mihm, Judge.



      A RGUED M ARCH 29, 2011—D ECIDED M AY 10, 2013




 Before R OVNER, W ILLIAMS, and H AMILTON, Circuit Judges.
  R OVNER, Circuit Judge. A jury convicted defendant-
appellant Michael Roux of inducing or coercing a
minor to create sexually explicit images, in violation of
18 U.S.C. § 2251(a). Roux appeals, contending that
the district court erred in admitting certain evidence
against him and that the government committed certain
missteps at trial which should have prompted the court
to declare a mistrial. Finding no error in any of the
2                                           No. 10-2192

district court’s rulings, and being satisfied that Roux
received a fair trial, we affirm Roux’s conviction.


                          I.
  On appeal from Roux’s conviction, we are obliged to
summarize the evidence in the light most favorable to
the government. E.g., United States v. James, 540 F.3d
702, 704 (7th Cir. 2008).
  In May 2002, after dating Roberta H. for a number
of months, Roux moved in with Roberta and her four
daughters, who ranged in age from 7 to 14 years old at
that time. In November 2003, Roberta’s eldest daughter,
CC, reported that Roux was sexually molesting her.
Although the Illinois Department of Children and
Family Services (“DCFS”) investigated and determined
the charge to be unfounded, CC was later removed from
the household. She never returned.
  After CC’s departure, Roux began molesting another
of Roberta’s daughters, EV. The abuse persisted and
progressed over a period of years. EV was 9 or 10 years
old when Roux first touched her inappropriately: he
would rub her beneath her nightgown while she sat on
Roux’s lap. When she began high school in 2006, Roux
was forcing EV to have sexual intercourse with him.
  In March 2008, EV at last told her mother about the
abuse. When Roberta confronted Roux, he acknow-
ledged the abuse and she threw him out of the house.
But Roux soon commenced an ultimately successful
campaign for readmittance to the household, promising
No. 10-2192                                             3

both Roberta and a furious EV that he would not
touch EV again. The promise proved short-lived; soon
enough, the abuse (including oral sex as well as inter-
course) resumed.
  The abuse finally came to the attention of the
authorities in May 2008, when EV was 16. One day
Roux, who made a habit of checking up on EV, visited
her school and saw her sitting with someone he had
forbidden her to see. (Roux had prepared a list of such
individuals, had EV sign it, and had given it to the
school principal.) Roux told her he was going to
remove her from school for the remainder of the year.
A panicked EV ran to the school guidance counselor
and the school principal, asked them to call the police,
and told them that Roux had been raping her for
some time and that she could no longer stand it. The
principal advised Roux that he was going to contact
the authorities and prevented Roux from taking EV with
him from the school grounds. Roux found Roberta
and pleaded with her to “please back me up on this. You
didn’t see anything.” R. 80 at 222, Tr. 320. He then fled,
only to be arrested two days later when he returned
home to gather his belongings.
  EV subsequently informed the police that during the
course of the abuse, Roux had taken sexually explicit
photographs of her and had forced her to take similar
photographs of himself; some of the photographs were
taken while Roux was engaged in intercourse with EV.
The photographs had been taken in the previous six
months. Armed with this information, investigators
4                                            No. 10-2192

seized a computer and two digital cameras from the
house that Roux had shared with Roberta and the girls.
A computer forensic specialist was able to recover a
number of images which had been deleted from the
computer after they had been downloaded from a
digital camera and then transferred to a USB “thumb”
drive. Among the recovered images were digital photo-
graphs of EV’s exposed breasts, her fingers inserted into
her vagina, several showing her engaged in sexual in-
tercourse, and finally, a number of photographs of
a man’s penis. No male face was visible in any of
the photographs.
  Based on the recovered images, a grand jury charged
Roux with one count of knowingly employing, using,
persuading, inducing, enticing, or coercing a minor to
engage in sexually explicit conduct for the purpose of
producing visual depictions of such conduct, using mate-
rials that had been mailed, shipped, or transported in
interstate commerce, in violation of section 2251(a). (A
second count of the indictment, which sought forfeiture
of the images and the equipment used to produce and
store them, was later dismissed on the government’s
motion.) Roux pleaded not guilty to the charge, and the
case was tried to a jury. Roux’s theory of defense was
that he was the family disciplinarian, that the girls
had begun to rebel against his authority as they grew
older, and that Roberta and her daughters were now at-
tempting to frame him with false allegations. Among
the government’s witnesses against Roux were both EV
and her mother. In addition, pursuant to Federal Rule
of Evidence 404(b) and over Roux’s objection, the court
No. 10-2192                                            5

allowed two of EV’s sisters, CC and SH, to give testi-
mony about the sexual abuse that Roux had inflicted
on them. Roux took the stand in his own defense,
denying that he had ever sexually abused EV or
her sisters and also denying that he had taken the
sexually explicit photographs of EV or forced her to take
the images of herself. At the conclusion of the four-day
trial, the jury convicted Roux. The court subsequently
ordered Roux to serve a prison term of 360 months.


                           II.
  Roux challenges the fairness of his trial, contending
that four errors undermined the presumption of evi-
dence and improperly shifted the burden of proof
from the government to him. Specifically, Roux contends
that the district court abused its discretion in ad-
mitting both the testimony about the sexual abuse that
EV’s sisters suffered and two mug shots reflecting that
Roux was heavier at the time of his arrest than he was
at trial. Roux further argues that two errors by the gov-
ernment entitled him to a mistrial, which the district
court denied: a prosecutor at one point in the trial
referred to certain recorded telephone conversations
that Roux had while in pretrial detention as “jail phone
calls”; and, while cross-examining Roux, a prosecutor
repeatedly asked Roux about various records and wit-
nesses that might corroborate his testimony but which
had not been produced.
6                                             No. 10-2192

A. Prior instances of sexual abuse
  Prior to trial, the government, citing Federal Rule of
Evidence 404(b), filed a motion seeking the court’s per-
mission to introduce testimony from EV’s sisters, CC and
SH, that they too had been sexually abused by Roux.
Rule 404 prohibits proof of a defendant’s uncharged
wrongful acts for the purpose of establishing his pro-
pensity to commit the charged offense, but allows the
court to admit such evidence for another purpose, such
as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack
of accident. The government offered the evidence of the
abuse suffered by EV’s sisters principally to establish
Roux’s motive to commit the charged offense and his
identity as the perpetrator. R. 76 at 15-16. Roux opposed
the government’s motion.
  The court conducted a hearing on the motion, at the
conclusion of which it found that the proffered evidence
of sexual abuse met three of the four criteria we have
identified for the admission of other acts evidence. See,
e.g., United States v. White, 698 F.3d 1005, 1017-18 (7th
Cir. 2012) (per curiam), cert. denied, 2013 WL 754692
(U.S. Apr. 1, 2013). Specifically, the court determined
that the government was offering the testimony of EV’s
sisters for a purpose other than to establish his criminal
propensity; that the proffered testimony was sufficient
to establish that Roux had engaged in uncharged acts
of sexual abuse; and that although the proffered evi-
dence was “very prejudicial,” the danger of undue preju-
dice did not substantially outweigh the probative value
No. 10-2192                                                 7

of this evidence. R. 76 at 28. The court reserved ruling
as to the fourth factor: whether the sexual abuse of
EV’s sisters was sufficiently similar to the charged
offense of using a minor to create sexually explicit photo-
graphs, given that EV’s sisters were not photographed.
R. 76 at 28.
  The court subsequently issued a brief order finding
that the proffered testimony met the similarity test and
was therefore admissible, relying on this court’s ruling
in United States v. Sebolt, 460 F.3d 910, 917 (7th Cir. 2006).
EV’s sisters joined the roster of witnesses against Roux.
   CC, the eldest of Roberta’s daughters and roughly four
years older than EV, testified that several months after
Roux moved in with her mother in 2002, Roux began to
touch her inappropriately, grabbing her breasts and
fondling her buttocks. The following year, Roux came
into her bedroom while she was sleeping, woke her up,
exposed his penis to her, and invited her to compare
its size to that of her mother’s ex-boyfriend. Roux left
the room when she screamed at him to get out. When
CC reported Roux’s misconduct to a school counselor,
DCFS conducted an investigation. DCFS concluded that
the allegation of abuse was “unfounded.” CC was later
placed in foster care after she assaulted Roux, and, as
we noted previously, never returned to live with her
mother and Roux. CC acknowledged on cross-examina-
tion that she had also been sexually abused by both
EV’s father, when he lived with Roberta, and by a male
babysitter. The parties stipulated that both of those
men pleaded guilty to criminal charges after CC re-
ported the abuse.
8                                            No. 10-2192

  SH was two years younger than EV. She testified
that in late 2006, Roux came into her bedroom one
night and, over her protests, touched her underneath her
clothing in her “lower area” or “crotch,” moving his
hands in a circle and pushing down while he did so. R. 80
at 66-68, Tr. 164-66. She also said that Roux had placed
his fingers inside of her. SH indicated that similar
incidents occurred both before and after this occasion.
On cross-examination, SH agreed that Roberta, CC, and
EV did not like Roux and wanted him out of the house.
  Roux contends that the admission of this testimony
deprived him of a fair trial. “Child sexual abuse has
a ‘unique stigma’ in society,” he reasons, “and the in-
troduction of such inflammatory evidence has a corre-
spondingly unique prejudicial effect on juries.” Roux
Br. 6. He believes that because the acts described by
CC and SH did not involve the creation of photographic
images, their testimony had limited probative value
with respect to the child pornography offense with
which he was charged, and was likely to have misled
the jury into thinking that the trial was about whether
Roux had sexually assaulted EV and/or her sisters.
At the same time, their testimony was so inherently
prejudicial as to make it probable that the jury was
likely to convict him on the basis of his prior bad acts,
regardless of whether it was convinced beyond a reason-
able doubt that he had committed the pornography
offense. Finally, Roux argues that CC’s testimony was
insufficient to support a finding that Roux in fact com-
mitted the acts she described, given that DCFS in-
vestigated her allegations in 2003 and yet labeled them
No. 10-2192                                                    9

“unfounded.” In any case, because the acts CC described
took place some four years before the charged pornogra-
phy offense, Roux contends they were too remote to
qualify for admission under Rule 404(b). We review
the district court’s decision to admit the testimony for
abuse of discretion. E.g., White, 698 F.3d at 1018.
  The first point bearing mention is that Roux’s de-
fense—that he did not take the sexually explicit photo-
graphs of EV and had never engaged with her in the
sexual conduct depicted in some of those photo-
graphs, and was instead being framed by Roberta and
her daughters—necessarily implicated his motive to
commit the charged offense. Motive is typically not
an element of the offense, but it is a factor that often
points to who may have committed the crime. “[U]nlike
issues of knowledge and intent, the defendant’s mo-
tive—an explanation of why the defendant would engage
in the charged conduct—becomes highly relevant when
the defendant argues that he did not commit the crime.”
United States v. Siddiqui, 699 F.3d 690, 702 (2d Cir.
2012) (emphasis in original), pet’n for cert. filed (U.S. Apr. 4,
2013) (No. 12-9651); see generally 22A C. Wright & K.
Graham, FEDERAL P RACTICE & P ROCEDURE: F EDERAL
R ULES OF E VIDENCE § 5240, at 306 (2012) (“Evidence of
motive may be offered to prove that the act was com-
mitted, to prove the identity of the actor, or to prove
the requisite mental state.”); see also, e.g., United States v.
Rodriguez-Berrios, 573 F.3d 55, 65 (1st Cir. 2009) (other
acts evidence relevant to show defendant’s motive,
given his claim of innocence). This is why the govern-
ment sought to establish Roux’s motive to take sexually
10                                                    No. 10-2192

explicit photographs of his girlfriend’s daughter—to
meet his defense of false accusation and to show that he
in fact was the person who took the photos. And
although both the government and the district court
spoke of the evidence being relevant to both motive
and identity, what they really meant was that proof
of motive would serve to establish the identity of
the perpetrator—the ultimate issue in the case. See
Wright & Graham § 5246, at 337.1
  The district court properly determined that the acts
of abuse described by CC and SH were probative of
Roux’s motive to commit the charged child pornography
offense. As Judge Mihm recognized, this court’s deci-
sion in Sebolt held that “[p]rior instances of sexual mis-



1
   Proof of identity, as a distinct Rule 404(b) factor, would
normally entail proof that a defendant’s prior acts share
distinctive characteristics in common with the charged crime.
See Wright & Graham § 5246, at 340-41; see also, e.g., United
States v. Simpson, 479 F.3d 492, 497-98 (7th Cir. 2007), abrogated
in part on other grounds by United States v. Boone, 628 F.3d 927,
933 (7th Cir. 2010); United States v. Connelly, 874 F.2d 412, 416-17
(7th Cir. 1989). Although the abuse described by CC and
SH certainly share some characteristics in common with the
abuse of EV, the briefs have not discussed in any real detail
whether the common features are distinctive and meaningful
enough to render the prior acts of abuse independently proba-
tive and admissible to show the identity of the perpetrator.
Given our conclusion that the testimony of CC and SH was
admissible as proof of Roux’s motive, we need not explore
this subject further.
No. 10-2192                                              11

conduct with a child victim may establish a defendant’s
sexual interest in children and thereby serve as evidence
of the defendant’s motive to commit a charged offense
involving the sexual exploitation of children,” including
child pornography offenses, and “it also may serve to
identify the defendant to the crime.” 460 F.3d at 917.
Apropos of Roux’s observation that child sexual abuse
and the production of child pornography are different
offenses, such that the commission of the former does
not establish a motive to commit the latter would serve
only to misdirect and ignite a jury’s passions, is the
following passage from Sebolt:
   The motive to molest children does not completely
   overlap with the propensity to possess, transport,
   or advertise child pornography. See [United States v.]
   Cunningham, 103 F.3d [553,] at 556-57 [(7th Cir. 1996)].
   If it did, then there would a greater chance that evi-
   dence of molestations introduced in this case was
   used to prove propensity. (Indeed the motive to
   molest children would completely overlap only
   with the propensity to molest children.) And
   the conceptual gap between molestation and child
   pornography is not so wide as to “induce the jury to
   decide the case on an improper basis . . . rather than on
   the evidence presented.” United States v. Thomas, 321
   F.3d 627, 630 (7th Cir. 2003) (quotations and citations
   omitted). In other words, the molestations and the
   evidence supporting the statutory criminal elements
   were similar in character, i.e., establishing Sebolt’s
   sexually deviant mental state, so there is no reason
   to suspect the jury was inflamed by the admission
12                                              No. 10-2192

     of the molestations. The prejudicial effect did not
     substantially outweigh the probative value, and the
     molestations were appropriately admitted.
460 F.3d at 917. See also United States v. Russell, 662 F.3d
831, 847-48 (7th Cir. 2011) (prior instances of inappro-
priate touching, by establishing defendant’s sexual
interest in his minor daughter, were probative of his
motive to induce his daughter to create sexually explicit
photographs in violation of section 2251(a)); United
States v. Courtright, 632 F.3d 363, 369-70 (7th Cir. 2011)
(prior instances of sexual misconduct with minor female
tends to establish motive to commit charged crime of
production, possession, and receipt of child pornography
in violation of section 2251(a) and 18 U.S.C. § 2252(a)).
  Undoubtedly, as Roux argues, testimony that the de-
fendant has sexually abused children is highly preju-
dicial; but we are not persuaded that the district court
wrongfully concluded that the testimony was unfairly
prejudicial to Roux. See Fed. R. Evid. 403. Our cases
addressing the admission of molestation evidence have
recognized the substantial prejudice that it necessarily
poses to any defendant; yet, we have regularly sustained
the admission of such evidence when probative of a
defendant’s motive, intent, or other pertinent (and ad-
missible) factor. See, e.g., United States v. Chambers, 642
F.3d 588, 595-96 (7th Cir. 2011); United States v. Zahursky,
580 F.3d 515, 525 (7th Cir. 2009); Sebolt, 460 F.3d at 917.
We have also emphasized that we owe deference to
a district judge’s balancing of probative value versus
risk of undue prejudice under Rule 403, given that the
No. 10-2192                                                  13

judge presiding over the trial has a superior familiarity
with and appreciation for the context and ramifications
of the proffered evidence. See, e.g., White, 698 F.3d at 1018;
United States v. Hosseini, 679 F.3d 544, 556 (7th Cir.), cert.
denied, 133 S. Ct. 623, 774 (2012). The record in this case
reveals that the district judge carefully weighed the
relevance of CC’s and SH’s testimony along with the
prejudice that it posed to Roux’s defense. The judge
also gave the jury the standard instruction limiting its
consideration of the other acts evidence, and notwith-
standing the prejudicial nature of the evidence in this
case, we presume that the jury followed that instruc-
tion. E.g., Chambers, 642 F.3d at 595-96.2 And, for what
it is worth, we note that Roux does not contend, and
the trial record does not indicate, that the government
in any way overstepped its bounds with respect to
this evidence. See Sebolt, 460 F.3d at 917. Having
reviewed the record, we are not convinced that this is
a case in which we should disturb the district court’s
judgment as to the relative probative value and prejudi-
cial effect of the other acts evidence.



2
   The court gave the instruction both just prior to SH’s testi-
mony and in the final set of instructions to the jury. Roux
has pointed out that the court did not give the instruc-
tion prior to CC’s testimony. That is true, but somewhat mis-
leading. Because CC testified immediately after SH, when
the court gave the instruction in advance of SH’s testimony,
it explained that its testimony was applicable to “the next
two witnesses.” R. 80 at 54, Tr. 152. Roux did not ask
the court to repeat the instruction when CC took the stand.
14                                                No. 10-2192

  Having said this, we agree with Roux that given the
inherently prejudicial effect of Rule 404(b) evidence
involving other uncharged acts of sexual abuse, particu-
larly the abuse of minors, courts must take particular
care in admitting such evidence and in instructing the
jury as to its appropriate use. Courts have a variety of
tools at their disposal to address the prejudicial effects
of this evidence, including: reserving ruling on the ad-
mission of the evidence until trial, when the relevance
and ramifications of the evidence may be more con-
cretely assessed, see, e.g., Russell, 662 F.3d at 838-39 (court
admitted evidence only after defendant testified in such
a manner as to place in issue his purpose and intent
in taking charged photographs); placing limits on the
extent and detail of the evidence, see id. at 839 (court
allowed government to establish that inappropriate
touching had occurred, but not to develop the details);
and giving stronger and more focused limiting instruc-
tions that confine the jury’s consideration of the evi-
dence for the specific purposes identified by the gov-
ernment and approved by the court, rather than the
entire range of possible purposes identified in Rule 404,
see United States v. Miller, 673 F.3d 688, 701-02 & n.1 (7th
Cir. 2012); Seventh Cir. Pattern Crim. Jury Instr. 3.11 &
Committee Comment. Roux’s counsel has suggested
that the court in this case should have expressly limited
the jury’s consideration of the Rule 404(b) evidence to
motive and identity; yet, he also concedes that a more
focused instruction was never proposed to the court and
makes no case for plain error in the court’s omission to
give such an instruction on its own initiative. See, e.g.,
No. 10-2192                                               15

United States v. Christian, 673 F.3d 702, 708 (7th Cir.
2012). As we have said, the record indicates that the
district judge approached the Rule 404(b) evidence in
this case with an appropriate degree of caution.
  Roux’s remaining points require only brief discussion.
First, in addition to suggesting that the abuse that CC
and SH described was not relevant because it did not
involve the creation of sexually explicit photographs—a
contention with which Sebolt dispenses—Roux has also
emphasized that, in contrast to EV, they did not
describe forced sexual acts. This point may reflect an
unduly narrow view of force. In any case, force is not
an element of the offense charged here. More to the
point, as Sebolt makes clear, the prior acts were relevant
to establish Roux’s sexual interest in underaged girls,
and thus his motive to cause EV to participate in the
creation of sexually explicit photographs; any distinc-
tions between the abuse that CC and SH suffered
and the abuse inflicted on EV are immaterial in that
regard. Second, Roux renews his contention that be-
cause DCFS found CC’s allegations of abuse unfounded,
her testimony was insufficient to establish that Roux,
in fact, abused her. However, the authorities’ decision
not to pursue charges does not render CC’s testimony
incredible. See Cookson v. Schwartz, 556 F.3d 647, 655
(7th Cir. 2009) (“a conclusion by DCFS that an allegation
is ‘unfounded’ does not establish that it is false”)
(citing People v. Mason, 578 N.E.2d 1351, 1356 (Ill. App. Ct.
1991) (DCFS decision not to pursue charges is neither
a judicial decision nor a final determination that the
victim’s allegations were false)). Whether to credit her
16                                            No. 10-2192

testimony was thus the jury’s prerogative. Finally, the
fact that the abuse CC described took place four years
before the charged photographs of EV were created
does not render the prior acts too remote in time to
be relevant. The prior acts were offered to establish
Roux’s sexual interest in minors, a proclivity that, as we
pointed out in Russell, is unlikely to vanish with the
passage of time. 662 F.3d at 848. More to the point, one
can infer from the testimony that when Roux began
to abuse CC in 2002, he commenced a long-term course
of abuse that eventually included two of her sisters
and continued largely unabated through the creation of
the charged photographs of EV four years later. In the
circumstances, the acts involving CC were not too
remote in time to be admissible under Rule 404(b).


B. Booking photographs of defendant
  As we noted earlier, some of the photographs under-
lying the section 2251(a) charge in this case depicted a
man engaged in sexual intercourse with EV. EV would
later testify that the man was Roux. The photographs
themselves showed only the man’s lower torso, not his
face. One identifying characteristic that was evident
from the photographs was that the male had a bit of a
belly and was thus slightly overweight. By the time of
trial, however, Roux (by EV’s estimate) weighed some
30 to 40 pounds less than he had at the time of his arrest
and appeared noticeably thinner to both EV and her
mother at trial. The government was concerned that the
jury, on observing a slender Roux in court, might be
No. 10-2192                                             17

inclined to discredit EV’s testimony that the male torso
depicted in the photographs belonged to Roux. The
government thus sought to introduce at trial photo-
graphs taken of Roux at the time of Roux’s arrest on
state charges in May 2008 and again in February 2009,
when federal authorities took over the prosecution
and took him into their custody. These were standard
booking photographs of Roux from the neck up; but
they revealed a somewhat heavier Roux that the jury
would see at trial, and to that end would support
the government’s position (and EV’s testimony) that
Roux was the individual shown in the photographs.
Roux objected to the admission of the photographs out
of concern that the jury would surmise (correctly)
from the nature and dates of the photographs (which
were communicated to the jury) not only that Roux
had been arrested and incarcerated prior to trial, but
also that his pretrial incarceration was a sign that he was
a particularly dangerous individual. The district court
found that the photographs were admissible for the
purpose articulated by the government. None of the
photographs contained any formal indicia (such as
prison garb, booking numbers, or height indicator
strips) indicating that they were jailhouse booking photo-
graphs. To minimize the possibility that the jury would
recognize them as such, the court allowed into evi-
dence only the two photographs depicting Roux facing
forward and excluded photographs taken of Roux
in profile.
  Roux renews on his appeal his contention that
the admission of the photographs undermined the pre-
sumption of innocence to which he was entitled for
18                                             No. 10-2192

the reasons he articulated to the district court. Notwith-
standing the absence of overt signs that these were jail-
house booking photographs, he asserts that it was
obvious to the jury that the admitted photos were, in
fact, mug shots. And because the jury knew that the
photographs were taken on two different dates some
nine months apart, he posits that jurors would have
suspected either that he was regarded as so dangerous
that he was denied release on bail, or that he commit-
ted a second offense resulting in another arrest (and
photo) while on pretrial release for the first offense.
He adds that there was no genuine need for the govern-
ment to introduce the photographs, as he had not
argued and never did argue based on his weight at the
time of trial that he could not be the person depicted
with EV in the charged photographs. At the same time,
he could not explain that his weight loss was uninten-
tional rather than purposeful and calculated, because to
do so would have required him to confirm that he
was incarcerated prior to trial and suffered weight loss
due to bad jail food and a jailhouse attack that resulted
in an injury requiring surgery and a lengthy stay in
the jail infirmary.
  The district court did not abuse its discretion in admit-
ting the photographs. The government had a legitimate
reason for offering them into evidence: Whether or not
Roux argued that he could not be the man depicted in
the charged photographs based on his trim physique at
the time of trial (and, as we pointed out at oral argu-
ment, this was a suggestion that Roux could have
reserved for closing argument), the jury might have
wondered about this point on its own. The photographs
No. 10-2192                                           19

themselves do not strike us as particularly prejudicial.
Having been informed that they are booking photos,
it is easy to recognize them as such. Without that fore-
knowledge, they also appear consistent with passport,
driver’s license, and workplace identification photo-
graphs, which are often just as unflattering as these
photographs of Roux are. Even if jurors correctly
guessed the origin of these photographs, it would not
have been a surprise to them that Roux had been
arrested and photographed at that time, given that he
had, after all, been indicted and placed on trial. The
notion that they would have further inferred that he
was denied bail because he was deemed too dangerous
to be released (as opposed to lacking the money to post
a bond, for example) or alternatively had committed
another offense resulting in a subsequent arrest strikes
us as too speculative to have compelled the exclusion of
the photographs. Nor are we convinced that the photo-
graphs called for some type of explanation from Roux
for the weight loss: the government did not argue at
trial that he had lost weight deliberately.


C. Prosecutor’s reference to “jail calls”
  Roux cites an incident that occurred during trial as a
second way in which the government undermined the
presumption of innocence. During the cross-examination
of Roux, the government played recordings of certain
telephone conversations that Roux had while he was
incarcerated prior to trial. (The recordings were offered
to suggest that Roux had attempted to coach prospec-
20                                               No. 10-2192

tive witnesses to support his assertions as to his employ-
ment history.) The parties had discussed the recordings
prior to trial and had agreed that there would be no
mention that Roux was incarcerated at the time of the
calls. Yet, when the prosecutor sought to introduce the
recordings, he announced:
     At this time, Judge, I would move to introduce an
     exhibit that contains these jail phone calls. I discussed
     this with [defense counsel] with regard to the founda-
     tion. There is a stipulation for foundation. We had a
     witness present, but there’s [a] stipulation about
     foundation.
R. 81 at 185, Tr. 588 (emphasis added). Roux’s counsel
objected to the description of the recorded conversations
as “jail phone calls,” and at sidebar informed the court
of the parties’ prior agreement not to refer to them as
such. The court admitted the recordings after confirming
that the recordings themselves would (further) identify
them as jailhouse telephone calls. Roux moved for
a mistrial, which the court denied.
  Roux contends that the court erred in refusing to
declare a mistrial given the prosecutor’s disclosure that
he had been incarcerated prior to trial. The disclosure
was indeed unfortunate, although it appears to have
been inadvertent: the transcript of the sidebar conversa-
tion suggests that the prosecutor did not even realize
that he had described the conversations as “jail calls”
until defense counsel so informed him. R. 81 at 186,
Tr. 589. In any case, we have no reason to believe that
the single reference to “jail calls” deprived Roux of a
No. 10-2192                                              21

fair trial. The jury was properly instructed as to the pre-
sumption of innocence in both the initial and final jury
instructions. The one-time disclosure that Roux had
been in jail prior to trial gives us no reason to doubt that
the jury honored that presumption. See United States v.
Johnson, 624 F.3d 815, 821-22 (7th Cir. 2010) (recordings
of defendant’s jailhouse telephone calls, which began
with announcements identifying them as calls made
from county jail, did not unduly prejudice defendant).


D. Cross-examination of defendant as to lack of corrobo-
   rating evidence
  Roux was the one and only defense witness. As we
have noted, Roux denied that he had taken the sexually
explicit photographs of EV or that he had forced her to
take the photographs herself; he also denied that he
had ever touched any of Roberta’s daughters inappro-
priately. Roux testified that at one point in time, he
had been in the hospital and that when he was dis-
charged, a doctor had advised him not to engage in
sexual activity while he was recovering and/or indicated
that the medication Roux had been prescribed might
render him unable to engage in such activity. (EV had
testified that it was at this point in time when Roux
had first asked her to have intercourse with him, telling
her he was dying; she refused.) Roux also testified that
he was working odd jobs as a handyman for various
individuals during the times that the government was
suggesting he would have been at home alone and, for
example, downloading the charged photographs to the
22                                              No. 10-2192

family computer and then transferring them to a USB
drive. The prosecutor followed up on both of those
points during cross-examination.
  As to the physician who had told Roux that he
should not or could not engage in sexual activity, the
prosecutor asked Roux to state the doctor’s name and
indicate where his office was. Roux answered both ques-
tions. After having Roux confirm that his medical
records would be on file with that doctor, the prosecutor
asked Roux, “And they [the records] should reflect what
you’re telling this jury, right?” R. 81 at 172, Tr. 575. Roux
agreed that they would.
  On the matter of Roux’s employment, the prosecutor
asked Roux a series of questions aimed at establishing
that he had not produced the sorts of records that would
back up his claims that he had been working. For
example, the prosecutor asked Roux whether he had
payroll records for the time period during which he
had lived with Roberta, and when Roux said that there
were boxes of such records in Roberta’s basement, the
prosecutor inquired, “What have you done to get
those?” and “Well, you’ve tried to get them, haven’t you,
or haven’t you?” R. 81 at 177, Tr. 580. Roux said that he
had tried, but without success. Next, the prosecutor,
after having Roux confirm that his attorneys had an
investigator working on his behalf, moved on to tax
returns. Roux indicated those too were in the boxes
in Roberta’s basement, and among other things they
would show that he had “claimed” EV (presumably as a
dependent) on his return. The prosecutor observed, “That
No. 10-2192                                              23

would show—if you had those forms here in court, you
could show that, right?” R. 81 at 177, Tr. 580. To which
Roux responded, “If I had them, yes.” R. 81 at 177, Tr. 580.
Finally, in discussing various individuals who might be
able to confirm his work history, the prosecutor asked
Roux questions like “And why can’t he back you up?” and
“So if you were there during these times in May, they
could back you up, right?” R. 81 at 182-83, Tr. 585-86.
  Only after the last of these questions was asked did
Roux’s counsel begin to object. At that point, the judge,
without being asked, took the opportunity to remind
the prosecutor, in the jury’s presence, that Roux
was presumed innocent and bore no obligation to
present evidence:
    DEFENSE COUNSEL: Judge—
    THE COURT: I’m going to have to intervene here.
    I have to make this point clear and it’s going to have
    to affect your questioning from now on. The law is
    very clear that the defendant is not only presumed
    innocent, but he has no duty to prove his innocence
    or to present evidence or to testify, so—
    PROSECUTOR: That’s understood.
    THE COURT: Well, I don’t know. I want to be sure
    the jury understands that because there’s a sugges-
    tion in your questions that he ought to be calling
    these people. He has absolutely no duty to present
    evidence.
    PROSECUTOR: Understood.
24                                               No. 10-2192

R. 81 at 183, Tr. 586. Roux subsequently moved for a
mistrial based on the prosecutor’s questions, which the
court denied.
  Despite the court’s admonishment of the prosecutor
in the jury’s presence, Roux contends that the pros-
ecutor’s questions improperly shifted the burden of
proof to him and (again) undermined the presumption
of innocence. In Roux’s view, the questions caused the
jury to look to Roux and his counsel for an explanation
as to why he had not presented evidence which
would have corroborated his testimony. The court, in
his view, was obliged to declare a mistrial.
  We disagree. First, we have been skeptical of argu-
ments that a prosecutor’s comments on a defendant’s
failure to produce evidence improperly shift the burden
of proof to the defense. So long as the jury has been
properly instructed that the burden of proof belongs to
the government and that the defendant has no burden
to present any evidence, we have generally permitted
comments on the lack of evidence supporting a theory
of defense, provided that the comments do not im-
plicate or “tax” the defendant’s right not to testify.
See United States v. Glover, 479 F.3d 511, 520 (7th Cir.
2007); United States v. Wesley, 422 F.3d 509, 516-17 (7th
Cir. 2005); United States v. Kelly, 991 F.2d 1308, 1314 (7th
Cir. 1993); United States v. Dahdah, 864 F.2d 55, 59 (7th Cir.
1988); United States v. DiCaro, 852 F.2d 259, 263 (7th
Cir. 1988); United States v. Sblendorio, 830 F.2d 1382, 1391
(7th Cir. 1987). Roux, of course, did testify, so there can
be no concern that the jury might have penalized him
No. 10-2192                                              25

for exercising his Fifth Amendment privilege. See Kelly,
991 F.2d at 1314. Second, when the defendant elects to
testify on his own behalf, the government, within reason,
may through its questions and argument properly
bring to the jury’s attention the extent to which
his version of events is uncorroborated and rests on
his own credibility. See Dahdah, 864 F.2d at 59; see also
United States v. Schmitz, 634 F.3d 1247, 1267 (11th Cir.
2011); United States v. Boulerice, 325 F.3d 75, 86-87 (1st
Cir. 2003) (coll. cases); United States v. Cabrera, 201 F.3d
1243, 1249-50 (9th Cir. 2000). Third, to the extent that
the prosecutor in this case may have crossed the line
with his repeated inquiries about the records and
witnesses that might corroborate Roux’s version of
events but had not been presented (not to mention
the reference to the investigator assisting the defense
team), the district judge’s timely and proactive re-
minder to the prosecutor and the jury that the
defendant has no obligation to produce evidence
was sufficient to address the problem. That reminder,
coupled with the instructions to the same effect at the
start and close of the trial, ensured that the jury
properly understood that the burden of proof remained
at all times with the government.


E. Cumulative effect of alleged errors
  Finally, we reject Roux’s claim that the cumulative
effect of the errors he has asserted deprived him of a
fair trial even if, individually, they did not. The evi-
dence to which Roux has objected was properly admitted,
26                                            No. 10-2192

and to the extent that the prosecutor stepped slightly
over the line in the two instances we have discussed,
the transgressions were not so serious, even in combina-
tion, as to have undermined the presumption of inno-
cence and deprived Roux of a fundamentally fair trial.


                           III.
  Having rejected Roux’s claims of trial error, we A FFIRM
his conviction.




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