708 F. App'x 249
6th Cir.2017Background
- David Guy was investigated after his then-17‑year‑old niece (Minor 1) accused him of sexual molestation; a search of his home found thousands of child‑pornography images, digitally manipulated photos of minor relatives, CDs with pedophilia memes, and an image of Minor 1 posed on his bed with an obscene caption. Guy was federally indicted on 16 counts: 11 counts under 18 U.S.C. § 1466A (obscene visual representations), one count of production/attempted production of child pornography under 18 U.S.C. § 2251, three counts of receipt, and one count of possession.
- Guy asserted First Amendment/art defenses and sought to introduce evidence of contemporary community standards (a local art exhibit and book); the district court excluded a jury view and refused the book.
- Guy moved to exclude Pedo Bear and other pedophilia‑themed images as improper Rule 404(b) character evidence; the court admitted them as probative of motive/intention and found notice adequate.
- At voir dire four prospective jurors expressed views suggesting potential bias; the district court denied for‑cause excusals and Guy used peremptory strikes for two of them; none of the seated jurors were shown to be biased.
- The jury convicted Guy on all counts; the district court sentenced him to 1,020 months’ imprisonment. Guy appealed, challenging sufficiency of evidence (attempted production), evidentiary rulings (art exhibit/book; Pedo Bear images), jury instructions (Dost factors), cross‑examination limits, and juror bias.
Issues
| Issue | Guy's Argument | Government's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for attempted production (§ 2251 attempt) | Image of Minor 1 lacked genitals so could not be "sexually explicit"; no intent to produce lascivious image | Context (Minor 1’s testimony about other nude photos, obscene caption, posed photo) supported intent and substantial step | Affirmed: viewing record as whole, a rational jury could find intent and substantial step toward production |
| Variance between indictment and proof | Presentation of testimony plus image created prejudicial variance from indictment alleging attempt based on the image | Additional contextual evidence consistent with charged offense; presenting more proof is not a material variance | No variance; claim fails |
| Exclusion of contemporary‑community‑standards evidence (art exhibit/book) | Needed jury view / book to show images were art and not obscene (First Amendment right to present defense) | Exhibit/book were of limited relevance; admission would confuse jury; exclusion within Rule 403 discretion | Affirmed: exclusion not arbitrary/disproportionate; no constitutional violation |
| Admission of pedophilia‑themed images (Pedo Bear) and Rule 404(b) notice | Images were improper propensity evidence and government failed to give proper written Rule 404(b) notice | Images were on discs disclosed in discovery, supplied actual notice; images admissible to show sexual interest, motive, intent, plan | Affirmed: notice was reasonable and images admissible for permissible purposes; not unfairly prejudicial |
| Jury instruction: inclusion of Dost factors for "lasciviousness" | Dost factors shouldn't apply because underlying photo did not display genitals or pubic area | Dost factors inform jury on lasciviousness and intent to create lascivious depiction; pattern instruction appropriate | Affirmed: pattern instruction including Dost factors proper; jury needed definition to assess intent to produce lascivious image |
| Cross‑examination and opened‑door concern re: prior conviction | Court’s remark chilled impeachment and threatened to open door to prior conviction | Court merely advised that if defense opened door prior conviction could become relevant; defendant had meaningful opportunity to cross‑examine | No constitutional Confrontation Clause violation; no plain error |
| Juror bias / for‑cause challenges | Denying for‑cause excusals forced use of peremptories and impaired right to impartial jury | Peremptories are auxiliary; defendant used peremptories and did not show biased juror sat or need for more strikes | Affirmed: no abuse of discretion; no constitutional deprivation |
Key Cases Cited
- Miller v. California, 413 U.S. 15 (sets the obscenity test applied to determine contemporary community standards)
- Jackson v. Virginia, 443 U.S. 307 (standard for reviewing sufficiency of evidence)
- Vanderwal, [citation="533 F. App'x 498"] (6th Cir.) (contextual evidence can show intent to create lascivious depiction despite non‑lascivious underlying image)
- Holmes v. South Carolina, 547 U.S. 319 (right to present a meaningful opportunity to present a complete defense)
- Martinez‑Salazar, 528 U.S. 304 (peremptory challenges are not of constitutional dimension)