FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
KANSAS (D.C. NO. 5:13-CR-40057-DDC-1)
T. Hansmeier, Appellate Chief (Melody Brannon, Federal Public
Defender, with him on the briefs), Office of the Federal
Public Defender, Kansas City, Kansas, for Appellant.
Christine E. Kenney, Assistant United States Attorney (Thomas
E. Beall, United States Attorney, with her on the brief),
Office of the United States Attorney, Topeka, Kansas, for
TYMKOVICH, Chief Judge, MATHESON and MORITZ, Circuit Judges.
TYMKOVICH, Chief Judge.
convicted Jonathan Kearn of federal child pornography charges
arising from pictures he took of his four-and-a-half year old
daughter and shared on the internet. He was sentenced to a
lengthy prison term followed by five years of supervised
contends the district court committed various errors at trial
and sentencing. First, Kearn raises several evidentiary
objections. He argues that the government elicited hearsay
testimony when it asked a witness about the contents of an
inculpatory report written by an expert who did not testify
at trial. Even assuming this testimony was hearsay, however,
we find no plain error, since admitting it did not affect the
outcome of the trial. Kearn also argues that testimony
identifying certain images as "child pornography"
was inadmissible, because it was not helpful to the jury. The
testimony was helpful, however, since whether the images
depicted sexually explicit conduct was a fact in issue. The
testimony also helped explain steps in the investigation.
Finally, Kearn argues that evidence was improperly admitted
under Federal Rule of Evidence 404(b), but he fails to direct
us to any evidence actually admitted under that rule.
Kearn argues the jury should have been instructed that they
had to agree unanimously on which specific images formed the
basis for conviction. In his view, all of the jurors had to
agree that at least one specific image violated federal law.
But this misstates the case law: unanimity is only required
for elements of a crime, not for means of satisfying a given
element. Different images satisfying the statutory criteria
are merely different means.
Kearn argues that a supervised-release condition that will
prohibit him from contacting his victim-his youngest
daughter-was improper, because it was not "reasonably
related" to the offense of conviction, and because it
interfered with his right of familial association. But he has
waived these arguments, which he did not make at sentencing,
by failing to argue for plain error.
Kearn argues that the cumulative effect of the errors in this
case mandates reversal. But we only identify one possible
error here, so cumulative error analysis-which addresses
whether multiple errors can prejudice a defendant-is
conclude that none of the issues Kearn raises requires
Sergeant Stuart Butler, a police investigator in Australia,
operated an undercover online persona that purports to trade
in child pornography in order to help catch perpetrators. In
2013, "email@example.com" began an
e-mail exchange with Detective Butler, during which
"cheyenneandliberty" sent several images of young
girls later identified as Kearn's daughters. In most of
the pictures the girls were clothed, but one of the images
showed the genitals of Kearn's youngest, four-and-a-half
year old daughter. "Cheyenneandliberty" also sent
Detective Butler a link to three explicit videos of young
girls who were not Kearn's daughters. In these e-mails,
"cheyenneandliberty" described himself as a
thirty-eight year old from Kansas, and a single father to
four daughters: a four-and-a-half year old, two ten-year-old
twins, and a thirteen year old. When Detective Butler asked
him for a family photo, "cheyenneandliberty" sent
him a photograph of Kearn standing with three of his
Butler looked at the data embedded in the digital images,
which shows when they were taken and the device used to take
them. The data showed the explicit images were taken with an
iPhone 4s shortly before "cheyenneandliberty" sent
the e-mails. This fact indicated to Detective Butler that
"cheyenneandliberty" was not merely sending images
he found on the internet, but taking the images himself. He
therefore referred the exchange to the U.S. Department of
found the IP address used to send some of the images was
associated with Kearn's Kansas home address. Kearn's
age, family situation, and location matched the description
given by "cheyenneandliberty." Investigators
executed a search warrant at Kearn's house. Kearn's
daughters were present, and the investigating agent, Special
Agent Cassidy Casner, recognized the girls from the images
sent to Detective Butler. Investigators seized Kearn's
iPhone 4s-the same model that had taken the photographs-and
footage from his home security system.
Agent Casner reviewed the home security footage, it
corroborated the e-mails sent to Detective Butler and the
embedded data from the images. That is, the footage confirmed
that Kearn was using his phone when the e-mails were sent;
Kearn was with his daughters when the pictures were taken;
and the daughters were wearing the same clothes shown in the
pictures on the dates the pictures were taken.
jury indicted Kearn with (1) permitting his minor child to
engage in sexually explicit conduct in violation of 18 U.S.C.
§ 2251(b); (2) distributing child pornography in
violation of 18 U.S.C. § 2252(a)(2); and (3) possessing
child pornography in violation of 18 U.S.C. §
trial, in addition to the home security footage and the
e-mail exchange with Detective Butler, the government
presented the expert testimony of Special Agent Craig Beebe,
who specializes in forensic examinations of electronic
evidence. Agent Beebe testified that Kearn's iPhone
contained explicit images of young girls, evidence of the
"cheyenneandliberty" e-mail address, and two videos
of Kearn's youngest daughter naked with Kearn's voice
in the background. Agent Beebe also found one of the images
e-mailed to Detective Butler on the iPhone. On Kearn's
computer, Agent Beebe found further evidence of
"cheyenneandliberty, " the website through which
Detective Butler's undercover persona was contacted, and
"ProudPapa, " a nom de plume used in the e-mails
with Detective Butler.
testified at trial. He admitted he had taken the explicit
photo and videos of his youngest daughter. But in his
defense, he said she had reported being molested by her
mother's boyfriend and he had taken the photos and videos
as evidence of the molestation. A sheriff's report indeed
showed that Kearn had reported this alleged molestation to
the sheriff a year before the e-mail exchange with Butler.
Kearn denied any knowledge of the
"cheyenneandliberty" account or the explicit images
on his phone other than the ones of his youngest daughter.
Kearn operated a heating and air conditioning business from
his home, and suggested a former employee with access to his
iPhone could have downloaded the images and e-mailed them to
also presented evidence from his own computer expert, Andreux
Doty. Doty testified he found only an isolated reference to
"cheyenneandliberty" in a file created from the
iPhone data. He testified he did not find any evidence in
government materials he reviewed that the
"cheyenneandliberty" e-mails had been sent from
jury found Kearn guilty on all counts. The district court
sentenced Kearn to 292 months in prison followed by five
years of supervised release, during which he may not contact
minors or the victim of the offense (his youngest daughter).
raises a number of issues on appeal. He argues various
evidence introduced at trial was inadmissible on hearsay or
relevancy grounds, and that the admission of the hearsay
evidence violated his Confrontation Clause rights. He also
contends the court should have instructed the jury to agree
unanimously on which specific images were the basis for his
conviction. He urges us to find these errors cumulatively
mandate relief. And he submits that a supervised-release
condition that will prohibit him from contacting his
victim-his youngest daughter-was improper.
did not raise these issues at trial, so we review them for
plain error. "Under the plain error standard, [the
appellant] must demonstrate: (1) an error, (2) that is plain,
meaning clear or obvious under current law, (3) that affects
substantial rights, and (4) that seriously affects the
fairness, integrity, or public reputation of judicial
proceedings." United States v. Piper, 839 F.3d
1261, 1265-66 (10th Cir. 2016) (citing United States v.
Rosales-Miranda, 755 F.3d 1253, 1257-58 (10th Cir.
2014)). Crucially, "[t]o satisfy the third prong of
plain-error review, a defendant generally must demonstrate
that an error was 'prejudicial, meaning that there is a
reasonable probability that, but for the error claimed, the
result of the proceeding would have been
different.'" United States v.
Bustamante-Conchas, 850 F.3d 1130, 1138 (10th Cir. 2017)
(en banc) (quoting United States v.
Algarate-Valencia, 550 F.3d 1238, 1242 (10th Cir.
review each of the issues raised in turn, and find no plain
error as to any.
first contends the district court improperly admitted hearsay
evidence through his expert witness. At trial, Kearn
presented the testimony of computer expert Andreux Doty, who
testified he did not find any evidence the
"cheyenneandliberty" e-mails were sent from
Kearn's phone. On cross-examination, the government asked
Doty what documents he had reviewed. As part of this line of
inquiry, the government asked about a report prepared by a
previously retained defense expert, Tammy Loehrs. Loehrs did
not testify at trial. After Doty said he had read the Loehrs
Report, the prosecutor asked him if "it would help [his]