Sufficient evidence for a receipt & possession of child pornography conviction; 18 USC § 2252A; Jury determination that images found on defendant’s phone were child pornography; United States v Dost (SD CA); Admissibility of the images; Admission of testimony about deleted bookmarks on the phone; Relevance; FRE 401; Whether admitting text messages between defendant & his daughter violated FRE 404(b); Denial of defendant’s motion to dismiss; Facial & as-applied challenges to the statute’s constitutionality

[This appeal was from the ED-MI.] The court held that there was sufficient evidence to support defendant-Mercer-Kinser’s conviction for the receipt and possession of child pornography. It also rejected his evidentiary challenges and his facial and as-applied challenges to the statute (§ 2252A). His conviction here was his second child-pornography crime. While in a halfway house after his first conviction, he sent texts to his preteen daughter that her aunt forwarded to the FBI, and the images giving rise to the charge here were found on his cellphone pursuant to a search warrant. He first argued that there was insufficient evidence to convict him because the district should have excluded the phone images on the basis they did not satisfy the statutory definition of child pornography. He claimed the images “were ‘child erotica’ and merely showed minors in suggestive clothing, ‘akin to a child in a beauty contest.’” Noting the inexhaustive list of factors jurors may use to determine whether images are “lascivious,” the court reviewed the seven images the jury considered, and held that the jury correctly found that each image constituted child pornography. It also held that “whether these images were child pornography was properly reserved for the jury.” It rejected defendant’s argument that the district court should have excluded any reference to the deleted bookmarks on his phone, which led to certain forums. The district court limited the testimony only to the bookmark titles and that the links were on the phone. Defendant argued that someone else at the halfway house could have used his phone. But the court explained that under Rule 401, their presence on his phone made it “more likely” that he received or possessed child pornography, “so it was admissible.” They were probative of his “knowledge and intent.” The court also found no merit to his claim that admitting the text messages between him and his daughter violated FRE 404(b). They were admissible to show “his knowledge and intent to receive and possess child pornography.” Further, it found “no unfair prejudice.” Finally, § 2252A’s knowledge requirement foreclosed his facial challenge to the statute’s constitutionality. His as-applied challenge also failed where the content of his texts “pointed at his interest in child pornography, so it tended to show his knowing receipt and possession of such images[.]” Affirmed.