FILED

United States Court of Appeals

Tenth Circuit

September 29, 2008

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 07-6177

JAY MARTIN SCHENE,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. No. CR–06-282-HE)

Robert L. Wyatt, IV, Wyatt Law Office, Oklahoma City Oklahoma, for

Defendant-Appellant.

Randal A. Sengel, Assistant U. S. Attorney (John C. Richter, United States

Attorney, with him on the brief), Oklahoma City, Oklahoma, for PlaintiffAppellee.

Before BRISCOE, SEYMOUR, and HARTZ, Circuit Judges.

BRISCOE, Circuit Judge.

Defendant Jay Martin Schene was convicted by a jury of five counts of

knowingly possessing material that contained an image of child pornography that
2

was produced using materials that had been mailed, shipped, or transported in

interstate commerce, in violation of 18 U.S.C. § 2252A(a)(5)(B). Schene

contends that: (1) the evidence was insufficient to show that the images of child

pornography were produced using materials that had been mailed, shipped, or

transported in interstate commerce; (2) the evidence was insufficient to show that

Schene committed the crime; (3) the district court abused its discretion by

admitting into evidence certain testimony regarding gender and homosexuality;

and (4) the district court abused its discretion by admitting into evidence images

of child pornography, and related exhibits. We have jurisdiction under 28 U.S.C.

§ 1291 and affirm.

I.

In February 2005, the Federal Bureau of Investigation (“FBI”) in

Allentown, Pennsylvania, searched the computer of an individual suspected of

having child pornography. In the process, they discovered emails from a second

individual, whose screen name with America Online (“AOL”) was “skitie33.” 

The FBI served a subpoena on AOL, and AOL disclosed that skitie33 was Donald

Black, of Duncansville, Pennsylvania. In April 2005, the FBI executed a search

warrant on Black’s residence and seized four computers. Black admitted trading

child pornography with a number of individuals online, although he could not

remember any of their names or screen names. 

The FBI performed a search of Black’s computer, and one of the screen
1

 All parties refer to this screen name as “outdoorguy,” without including

the numbers. We will use the same reference.

3

names that they uncovered was “outdoorguy104166.”1 The FBI served another

subpoena on AOL, and AOL disclosed that the screen name corresponded to the

account of Defendant Schene, who lived in Edmond, Oklahoma. Several other

screen names were associated with Schene’s account, including “ccarlin317,”

“myebayshades,” “ebayshades,” and “okseecat.” The FBI referred this

information to its Oklahoma City office.

In Oklahoma City, FBI special agent William Weaver performed a search

of public records and determined that Schene’s home address was in Edmond,

Oklahoma. Agent Weaver stopped by Schene’s home several times to investigate,

and eventually, near the end of May 2006, a woman answered the door. Agent

Weaver left his business card with her, and he requested that Schene contact him. 

Later that morning, Schene called Agent Weaver, who asked Schene to come to

the FBI office for an interview. Schene agreed.

At the interview, Schene stated that he had never used, or heard of,

outdoorguy. Schene admitted, however, that he used two of the other screen

names: ccarlin317 and okseecat. He stated that he worked as a financial advisor

for Chase Bank, and that he was married to Cathy Carlin, whose email address

was carlincathy@yahoo.com. When asked, Schene consented to a search of his

home computer, and FBI agents accompanied him to his house to perform the
4

search. During the search, Schene told the agents that there were no children in

the house, and only he and his wife used the computer.

The FBI agents searched Schene’s computer using a software tool called

“Presearch,” which finds all of the images on the computer’s hard drive and

shows them one-by-one. At first, the agents only saw images of homes and other

generic images from the internet, but eventually, images of child pornography

began to appear. Schene denied that the images were his, and he stated that he

had no idea how the images had come to be on his computer. The agents seized

the computer.

At the FBI office, Bryan Carter, a computer forensics expert, examined the

computer in detail. Mr. Carter focused on the hard drive because everything on

the computer was stored there, and any visual images came from information on

the hard drive. He used several software tools to look for images, and these tools

enabled him to search for specific file types—such as images and emails—and to

uncover a lot of information about each file. The tools even enabled him to find

files that the user had attempted to delete.

Mr. Carter discovered two operating systems on Schene’s computer:

Windows XP Professional and Windows XP Home Edition. The user had to

choose between the two operating systems immediately after starting the

computer. Within each operating system were two user names—one for Jay

Schene and another for Cathy Carlin—and none of the user names required a
2

 A wiper/shredder program is a program that attempts to erase the tracks of

internet activity or confidential information.

5

password. The email service on the computer was AOL, and Mr. Carter found all

of the screen names that AOL had listed in its response to the FBI’s subpoena. 

He also found the email address book that AOL automatically created for

outdoorguy. Included within the address book was the screen name skitie33,

which the FBI had previously determined to be the AOL screen name for Donald

Black of Duncansville, Pennsylvania, who had admitted trading child

pornography with a number of individuals online.

During his search of the computer, moreover, Mr. Carter found over 1900

images of child pornography, about half of which the user had attempted to

delete. He discovered most of the images in emails associated with outdoorguy

and ccarlin317. He also found pornographic movies involving children, as well as

a history of movies that had been “created” and viewed on the computer. Some

legitimate emails—i.e., emails not containing child pornography—had been sent

from ccarlin317 with Jay Schene’s signature at the bottom. There was also a

wiper/shredder program on the computer,2

 scheduled to run daily on Cathy

Carlin’s user profile but accessible from either of the user profiles. 

At Schene’s trial, the government presented the evidence described above,

including the images of child pornography that pertained to each of the five

counts in the indictment. In addition, the government read into evidence a
6

stipulation to which all parties had agreed, which stated:

The parties to this case stipulate and agree that the following fact

may be accepted as proven:

The hard drive from the defendant’s computer is a Seagate 20

gigabyte hard drive. This hard drive was manufactured in the

country of Singapore.

Stip., ROA, Vol. I, at 62; Tr. at 104.

The government then called as a witness Jeffrey Elliott, a captain with the

Oklahoma Highway Patrol who had been assigned to the FBI cyber crimes task

force to investigate crimes involving computers and the sexual exploitation of

children. Officer Elliott testified, without contemporaneous objection from

Schene, about the content of the images:

A I would say probably 90 to 95 percent of the images that were

child pornography were images of young boys. They may be

nude by themselves in a sexually provocative position, they

may be engaged in a homosexual act with another young boy

or an adult male.

Q And in your experience in working with cyber crimes and

these types of investigations, have you ever seen a woman who

trafficked in child pornography showing homosexual acts

between males?

A I have not.

Tr. at 107. Officer Elliott also described an exchange of emails between

outdoorguy and an individual using the screen names “butwhoishe” and

“handsomehorn.” The emails contained images of child pornography, and

outdoorguy sent and received several such emails within an hour-long period on
7

the evening of April 28, 2006. Officer Elliott explained further that outdoorguy

had sent an email to himself, with seventy-six images of child pornography

attached, which would have enabled outdoorguy to access these images on other

computers. Finally, on redirect examination, Officer Elliott testified:

Q Now, on the internet history, were there instances you could

find where websites with homosexual themes had been visited?

A Yes, sir. I saw repeatedly, I saw the user under the Jay Martin

Schene account visit www.menforsexnow.com,

www.menforrentnow.com, www.cruisingforsex.com. And

there was an address at library.gaycafe.com that was visited

very frequently.

Q And did you look at a few of these websites?

A I did. I visited each of those. Each of them are gay oriented

for males. They all offered child pornography to view. They

are kind of a social networking site where you can post your

profile or post an ad requesting to meet with someone and that

kind of thing.

Tr. at 126. 

As his defense, Schene tried to show that the government had not proven

that it was he who had knowingly possessed the pornography. On cross

examination, Agent Weaver admitted that he did not know the identity of the

woman who first answered the door at Schene’s address. He admitted that he

never attempted to interview Schene’s wife; he never searched her business

computer; he never searched Schene’s work computer; and he never put together a

time-line of Schene’s computer usage. Further, Agent Weaver agreed that Schene
8

contacted him very quickly after Agent Weaver left his business card at the

residence, and Schene cooperated fully with the investigation—answering all

questions and granting the FBI access to his computer. Agent Weaver agreed that

families commonly share an AOL screen name and email account, and that neither

Jay Schene’s nor Cathy Carlin’s user name required a password. Schene also

questioned Agent Weaver about whether the FBI had unduly focused on

Schene—rather than his wife—because Schene was a man:

A I believe we asked if he had any children in the home and he

said no. And then it was asked whether he had any nephews or

nieces that would have access.

Q You would agree, though, that in your report there’s nothing

that mentions nieces?

A Correct.

Q Your report only mentions there were no nephews in the

teenage years?

A Correct.

Q You never considered the possibility of a woman viewing these

images, did you?

A We tried to consider all people in the house. In this case, the

images were of young boys, young mostly males, and generally

you can consider men, but we try to consider both parties.

Tr. at 52. Shortly thereafter, Agent Weaver testified:

A You just assumed that a man looked at these images?

Q Yes.
9

Tr. at 53. On redirect examination, the following exchange occurred:

Q Has your training with the FBI taught you about the frequency

with which women traffic in child pornography?

MR. WYATT: Your Honor, I’m going to object. Calls for

speculation, and there’s no foundation for

this, and it’s beyond Daubert and Kumho

Tire.

THE COURT: Overruled.

Q (By Mr. Sengel) You may answer the question.

A Yes. It’s usually men.

Q It’s very rarely found to be women who traffic in child

pornography?

* * *

Q So in this instance, that’s one of the reasons you were

focusing on Jay Schene as you go out there?

A Right. Another reason was when we did the search, the

computer was kind of -- there was an account for the wife and

an account for the husband. When the images came up the

first images that I saw I could see the path where they were

stored, and it was in the wife’s account and they were pictures

of real estate and different things that she was interested in. 

There were family, I think, trips to a river rafting trip. And I

could see on the path it was still in her account. And soon as

that switched to show Jay’s account, that’s when the images of

child pornography started popping up.

Tr. at 55-56.

Likewise, on cross examination, Bryan Carter admitted that neither Jay

Schene’s nor Cathy Carlin’s user name required a password. A person could have
10

accessed the outdoorguy screen name from either of the user names, and there

was no way to determine that Schene was the individual sitting at the computer,

viewing the images of child pornography. In addition, Officer Elliott admitted

that law enforcement had not conducted a sting to catch Schene in the act of

looking at child pornography, and only through the use of a camera could he

prove that Schene was the person sitting at the computer looking at the images of

child pornography. Officer Elliott further admitted that he never interviewed

Cathy Carlin because she refused to talk with him, and he never examined

Schene’s work computer.

Schene moved for a mistrial at several points. The first time, he argued:

Your Honor, also the government has advised the Court that it is to

show homosexual activity but they have no evidence of homosexual

acts or homosexual nature of the defendant. In absence of that I

suggest to the Court that it is unduly unfairly discriminatory and an

improper suggestion, and even based on previous testimony, I would

state that I did not object, but I’m going to now and move for a

mistrial on the grounds that you can’t assume that someone is

homosexual because of information that involves homosexuality or

bisexuality that a man looked at it. 

Tr. at 82-83. The court denied the motion. Later, after Officer Elliott testified

about the images recovered from Schene’s computer, the following exchange

occurred:

MR. WYATT: I ask the Court for a limiting instruction. There’s

no evidence to be presented of any homosexual

activity by my client of Jay Martin Schene, no

evidence from anyone of any evidence they have

provided to me, no discovery that he is
3

 On cross examination, Mr. Penrod admitted that images containing child

(continued...)

11

homosexual, gay, bisexual, and I ask the jury be

instructed on that.

THE COURT: What would be the basis for me instructing them

what the evidence hasn’t shown?

MR. WYATT: Well, I’ve objected to the fact that they have

attempted to introduce this without any Daubert

showing and without any, it’s just opinions of lay

people once you get to that point. For a witness

to stand up here and say that we’ve never seen a

woman look at pictures of homosexual men, that

is totally beyond the scope of the expertise of

these people, whether he has seen that or not. It

doesn’t establish whether it does or does not exist

or who might have been looking at any of the

images.

THE COURT: Insofar as the Daubert related objection, there was

a sufficient showing made. Beyond that I don’t

have any basis to give a limiting instruction on

what you’re asking for. You can inquire into it on

cross and put on your evidence, but at any rate,

your request will be denied.

MR. WYATT: For the record I move for mistrial.

THE COURT: Be overruled.

Tr. at 109-10.

Schene called several witnesses to testify on his behalf. First, Jay Penrod,

a computer forensics specialist, testified that all of the AOL screen

names—outdoorguy, okseecat, ccarlin317, and myebayshades—were originally

set up under Cathy Carlin’s user profile.3

 He also testified that it was impossible
3

(...continued)

pornography had been opened and viewed under Schene’s user profile. The

government also countered Mr. Penrod’s testimony by introducing rebuttal

testimony from Bryan Carter, who testified that the AOL version on which the

screen names were originally installed was older than the version on which many

of the images were viewed.

12

to identify who was sitting at the keyboard looking at the images of child

pornography; that outdoorguy was not necessarily a man; and that family

members commonly share one AOL account and often view inappropriate

material without other family members knowing. Schene then called three

character witnesses, who testified to their opinion of Schene’s high character as

an honest and law-abiding individual.

Pursuant to Rule 29 of the Federal Rules of Criminal Procedure, Schene

moved for a judgment of acquittal—which the district court denied—at the close

of the government’s case, at the close of Schene’s case, and at the close of the

government’s rebuttal evidence. Ultimately, the jury returned a verdict of guilty

on all five counts. The district court sentenced Schene to sixty months’

imprisonment, followed by two years of supervised release.

II.

A. Sufficiency of the evidence: the interstate commerce element of 18 U.S.C. §

2252A(a)(5)(B)

Schene appeals the sufficiency of the evidence as to the “interstate

commerce” element of 18 U.S.C. § 2252A(a)(5)(B). He did not raise this issue in
4

 Schene argues that he preserved this argument by raising it during a jury

instruction conference. An argument during a jury instruction conference does

not preserve a sufficiency-of-the-evidence issue for appeal where a defendant

omits it from his Rule 29 motion, and our plain error standard applies here. Cf.

Goode, 483 F.3d at 681 (“When a defendant challenges in district court the

sufficiency of the evidence on specific grounds, ‘all grounds not specified in the

motion are waived.’” (quoting United States v. Kimler, 335 F.3d 1132, 1141 (10th

Cir. 2003))).

13

his Rule 29 motions for judgment of acquittal, so we review for plain error. See

United States v. Schaefer, 501 F.3d 1197, 1199-1200 (10th Cir. 2007); see also

United States v. Goode, 483 F.3d 676, 680-81 & n.1 (10th Cir. 2007).4 “To

obtain relief under this doctrine, [Schene] must show: (1) an error, (2) that is

plain, which means clear or obvious under current law, and (3) that affects

substantial rights.” Goode, 483 F.3d at 681 (citation and internal quotation marks

omitted). “If he satisfies these criteria, this Court may exercise discretion to

correct the error if it seriously affects the fairness, integrity, or public reputation

of judicial proceedings.” Id. (citation and internal quotation marks omitted).

The statute at issue, 18 U.S.C. § 2252A(a)(5)(B), prohibits “[a]ny person”

from

knowingly possess[ing] any book, magazine, periodical, film,

videotape, computer disk, or any other material that contains an

image of child pornography that has been mailed, or shipped or

transported in interstate or foreign commerce by any means,

including by computer, or that was produced using materials that

have been mailed, or shipped or transported in interstate or foreign

commerce by any means, including by computer[.]

18 U.S.C. § 2252A(a)(5)(B). To meet the “interstate commerce” element here,
14

the government has relied solely on the second prong of § 2252A(a)(5)(B)—i.e.,

that the images of child pornography were “produced using materials that have

been mailed, or shipped or transported in interstate or foreign commerce.” 

At trial, the government’s theory was that Schene’s hard drive—which was

“mailed, or shipped or transported in interstate or foreign commerce”—had

“produced” the images of child pornography when it caused them to appear

visually on Schene’s computer monitor. The parties stipulated that “[t]his hard

drive was manufactured in the country of Singapore.” Stip., ROA, Vol. I, at 62;

Tr. at 104. Also, Bryan Carter testified to the following:

Q In the forensic exam when you’re focusing on the hard drive,

is that because -- for those that didn’t grow up with computers,

like me, that’s where everything is stored?

A Correct.

Q And in the instance of like images to be seen on a computer,

are those images going to be produced from the information

that’s on that hard drive?

A Yes. It is an exact copy of that information.

Tr. at 60.

The government’s attempt to prove production of the images by their

display on a computer monitor is foreclosed by our decision in United States v.

Wilson, 182 F.3d 737, 743 (10th Cir. 1999). In Wilson, the defendant had been
5

 The statute provided that any person who

knowingly possesses 3 or more books, magazines, periodicals, films,

video tapes, or other matter which contain any visual depiction . . .

which was produced using materials which have been mailed or . . .

shipped or transported [in interstate or foreign commerce], by any

means including by computer, if—

(i) the producing of such visual depiction involves the use of a minor

engaging in sexually explicit conduct; and

(ii) such visual depiction is of such conduct; shall be punished as

provided in subsection (b) of this section.

Wilson, 182 F.3d at 740 (quoting 18 U.S.C. § 2252(a)(4)(B) (1996)) (alterations

in original).

15

convicted under 18 U.S.C. § 2252(a)(4)(B) (1996),5 and we reversed the

conviction under the jurisdictional prong of that statute. We first explained that,

contrary to the government’s “extremely vague” theory at trial, and even though

“the evidence was uncontroverted that the diskettes [containing child

pornography] traveled in interstate commerce, there was an alarming lack of proof

that the diskettes were used to actually produce the graphics files.” Wilson, 182

F.3d at 742. The government’s witnesses 

did not support the conclusion that computer diskettes are used to

actually produce graphics files. To the contrary, their testimony left

unanswered the question of whether a computer graphics file is

produced or created prior to being recorded on a particular storage

media, or whether, instead, it only comes into being at or after the

point it is recorded on the storage media. Although we have no

doubt this question has an answer (and thus do not foreclose the

possibility that a diskette is a “material” used to produce a graphics

file contained thereon), we conclude the evidence produced by the

government in this case was insufficient to allow a reasonable juror
16

to answer the question.

Id. at 743. We also declined to affirm the conviction under the government’s

“alternate theory”: “that the act of converting a computer graphics file stored on a

diskette into a visual image on a computer monitor could constitute ‘production’

of a visual depiction for purposes of the statute.” Id. We explained:

Without foreclosing application of this theory under different

circumstances, we find it of no value here. As previously noted, the

stipulated amended superseding indictment narrowly charged

defendant with violating § 2252(a)(4)(B) by possessing three or more

computer diskettes that contained visual depictions, i.e., computer

graphics files. Under § 2252(a)(4)(B), a computer graphics file is

considered a “visual depiction” as it resides on a computer diskette in

binary form; no act of viewing the file with software and a monitor is

necessary. Thus, the focal point of the statute’s jurisdictional

element, as applied to the circumstances of this case, is whether the

graphics files were produced using materials that traveled in

interstate commerce. In other words, in determining whether the

jurisdictional element is satisfied, the statute requires us to focus on

the graphics files as they reside or are contained on the diskettes, and

to determine what materials went into producing those files. It is

irrelevant that defendant may have actually viewed the graphics files,

using a computer, viewing software, and a monitor, because such

viewing did not result in production of the graphics files; instead,

such production necessarily had to have occurred either at or prior to

the time the graphics files were recorded on the diskettes.

Id. (citation omitted). 

The government’s argument in the instant case mirrors the government’s

“alternate theory” that we rejected in Wilson, and despite the differences in the

statutory texts at issue in the two cases, Wilson still controls here. Section

2252A(a)(5)(B) requires that the “image of child pornography . . . was produced
17

using materials that have been mailed, or shipped or transported in interstate or

foreign commerce.” Although the statute does not define “image,” it defines

“child pornography” to mean “any visual depiction, including any photograph,

film, video, picture, or computer or computer-generated image or picture, whether

made or produced by electronic, mechanical, or other means . . . .” 18 U.S.C. §

2256(8). The phrase “visual depiction,” in turn, “includes undeveloped film and

videotape, and data stored on computer disk or by electronic means which is

capable of conversion into a visual image.” Id. § 2256(5). Thus, under 18 U.S.C.

§ 2252A(a)(5)(B)—as under § 2252(a)(4)(B) in Wilson—“[i]t is irrelevant that

defendant may have actually viewed the graphics files, . . . because such viewing

did not result in production of the graphics files; instead, such production

necessarily had to have occurred either at or prior to the time the graphics files

were recorded on the diskette.” Wilson, 182 F.3d at 743.

That is not the end of our analysis, however, because, as we have noted,

Schene did not challenge the sufficiency of the evidence below and must therefore

establish his entitlement to relief under the plain error standard of review. Under

that standard, Schene must establish not only the existence of an error that is clear

or obvious under current law, but also that such error affects his substantial rights

and seriously affects the fairness, integrity, or public reputation of judicial

proceedings. For the reasons that follow, we are not persuaded that Schene can

make these latter two showings.
18

Since our decision in Wilson, both the Seventh and Ninth Circuits have

addressed the very question that we held was unanswered by the evidence

presented in Wilson, i.e., “whether a computer graphics file is produced or

created prior to being recorded on a particular storage media, or whether, instead,

it only comes into being at or after the point it is recorded on the storage media.” 

182 F.3d at 743. More specifically, both the Seventh and Ninth Circuits have

held, as a matter of law, that computerized images are “produced” for purposes of

§ 2252A(a)(5)(B) when computer equipment, including both hard drives and

computer diskettes, are used to copy or download the images. United States v.

Anderson, 280 F.3d 1121, 1125 (7th Cir. 2002); United States v. Guagliardo, 278

F.3d 868, 871 (9th Cir. 2002); United States v. Angle, 234 F.3d 326, 341 (7th Cir.

2000). As the Ninth Circuit explained in Guagliardo, “[w]hen the file containing

the image is copied onto a disk” or hard drive, “the original is left intact and a

new copy of the image is created, so the process ‘produces’ an image.” 278 F.3d

at 871.

Armed with these more recent decisions clarifying how and when a

downloaded or copied computer image is “produced,” we turn to the evidence

presented in Schene’s case. It was uncontroverted that all of the charged

materials were found on Schene’s hard drive. The government introduced the

following testimony regarding the movie at issue in Count 1 of the indictment:

Q Now, the date here created where it’s viewed and so on, is that
19

because someone took the file over to Real Player to look at it?

A Yes.

Q And that’s different from the temporary directory?

A Correct.

Q So it would take an intentional act of someone to move that

movie over and play it?

A Yes.

Tr. at 85. The Real Player history, moreover, stated that the movie was

“[c]reated” on February 5, 2005. Gov’t Ex. 6. While some of this testimony

appears to relate to the viewing of the movie, the testimony and government’s

Exhibit 6 also support the “creation” or downloading of the movie onto the

computer hard drive. The image charged in Count 2 was “an active file” that

“had been saved to the computer from e-mail coming in.” Tr. at 87. Likewise,

the images charged in Counts 3 and 4 were “all from e-mail recovered from Jay

Schene’s computer” and were all “active on the computer.” Tr. at 89. The image

charged in Count 5 was “recovered from the defendant’s computer,” “from an email,” and was an “active file[]” on the computer. Tr. at 89-90. The government

also showed that at least two of the charged images—the images from Exhibits 10

and 13—had appeared on Exhibit 14, the email that outdoorguy sent to himself,

and an image sent in this fashion “had to be stored on [Schene’s] computer.” Tr.

at 119. 
20

It is obvious that the government’s evidence was sufficient, under the more

recent Seventh and Ninth Circuit decisions, to show that each “image of child

pornography” had been copied or downloaded to Schene’s hard drive in one

capacity or another, and was therefore “produced using materials that have been

mailed, or shipped or transported in interstate or foreign commerce.” 18 U.S.C. §

2252A(a)(5)(B); see Anderson, 280 F.3d at 1125; Guagliardo, 278 F.3d at 871; cf.

United States v. Lacy, 119 F.3d 742, 750 (9th Cir. 1997) (reviewing for plain

error and affirming a conviction under 18 U.S.C. § 2252(a)(4)(B) because the

images “were created—‘produced’—when Lacy used his computer to download

data,” and under the statute, “it does not matter that the depictions on Lacy’s

computer were copies rather than originals”). In light of this conclusion, we

would be hard-pressed to say that the claimed insufficiency of the evidence

violated Schene’s substantial rights or seriously affected the fairness, integrity, or

public reputation of his judicial proceedings. Accordingly, we reject Schene’s

sufficiency-of-the-evidence challenge to the interstate commerce element of §

2252A(a)(5)(B).

B. Sufficiency of the evidence: Schene committing the crime

Schene next appeals the sufficiency of the evidence that he—and not his

wife—committed the offenses. Schene raised this issue in his Rule 29 motions

for judgment of acquittal, and it was the thrust of his defense at trial.

The evidence was sufficient to establish that it was Schene, and not
21

someone else, who committed the crimes charged. “‘Evidence is sufficient to

support a conviction if a reasonable jury could find the defendant guilty beyond a

reasonable doubt, given the direct and circumstantial evidence, along with

reasonable inferences therefrom, taken in a light most favorable to the

government.’” United States v. Nelson, 383 F.3d 1227, 1229 (10th Cir. 2004)

(quoting United States v. Wilson, 107 F.3d 774, 778 (10th Cir. 1997)). “We will

not weigh conflicting evidence or second-guess the fact-finding decisions of the

jury.” United States v. Summers, 414 F.3d 1287, 1293 (10th Cir. 2005). “Rather

than examining the evidence in ‘bits and pieces,’ we evaluate the sufficiency of

the evidence by ‘considering the collective inferences to be drawn from the

evidence as a whole.’” Nelson, 383 F.3d at 1229 (quoting Wilson, 107 F.3d at

778).

Schene does not contest that the computer contained the charged images of

child pornography, or that the only people with access to the computer were

Schene and his wife. Government investigators found over 1900 images of child

pornography, with images appearing under both of the operating system’s user

accounts and under two AOL screen names—outdoorguy and ccarlin317. Schene

had access to both user accounts, and he admitted to using the screen name

ccarlin317.

Also, two of the government’s witnesses testified regarding the likelihood

of Schene—rather than his wife—viewing the child pornography. One of the
22

witnesses, Agent Weaver, explained that when the officers first examined

Schene’s computer, “the images of child pornography started popping up” only

after they “switched to show [Schene]’s account.” Tr. at 56. From this collection

of evidence, a reasonable jury could have found beyond a reasonable doubt that

Schene—and not his wife—knowingly possessed the child pornography, and the

evidence was sufficient to support Schene’s conviction.

C. Testimony regarding gender and homosexuality

Schene next argues that the government erred in admitting testimony

regarding the propensity of women to traffic in, and view, child pornography. 

Specifically, Schene claims that this testimony was unreliable and failed to meet

the standards established in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

U.S. 579, 589 (1993), Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999),

and Rule 702 of the Federal Rules of Evidence. Also, he claims that the

government’s witnesses violated Rule 704(b) by testifying to the “ultimate issue”

of Schene’s mental state. Finally, he claims that the government suggested that

Schene was a homosexual, which violated his right to due process and a

fundamentally fair trial. “‘We review challenges to admissibility of evidence

solely for abuse of discretion.’” United States v. Chisum, 502 F.3d 1237, 1241

(10th Cir. 2007) (quoting United States v. Reddeck, 22 F.3d 1504, 1508 (10th Cir.

1994)). 
23

1. Agent Weaver’s and Officer Elliott’s testimony regarding the

likelihood of a woman possessing child pornography

We discern no reversible error in admission of the testimony by Agent

Weaver and Officer Elliott about the likelihood of a woman possessing child

pornography. Agent Weaver’s testimony came on redirect examination after

Schene had cross-examined him regarding his failure to investigate Carlin with

respect to the images of child pornography. The clear purpose of the questioning

on redirect was to explain why Agent Weaver had focused his attention on

Schene. For that purpose, it was unnecessary to establish the “scientific” basis

for Agent Weaver’s testimony. The point was not that the information he

received in training was correct; it was that he was acting in accordance with his

training.

As for Officer Elliott’s testimony, we review for plain error because Schene

raised no contemporaneous objection. Under the plain-error standard, we cannot

reverse because any error in admitting the testimony was not plain. Officer

Elliott’s testimony could be justified on the same basis as Agent Weaver’s; and it

is hardly “plain” that the testimony lacked sufficient support in his training and

experience. Moreover, even assuming for purposes of argument that Schene

could establish the existence of an error that was plain, we are not persuaded that

Schene’s substantial rights were violated by the introduction of Officer Elliott’s

testimony in this regard. In particular, the jury had already heard similar
6

 We emphasize that Schene opened the door to this testimony and we

stress that our holding on this point is very limited, and should not be interpreted

as carte blanche to introduce this type of evidence in every case involving child

pornography.

24

testimony from Agent Weaver, and the other evidence of Schene’s guilt was

substantial.6

2. Alleged violations of Fed. R. Evid. 704(b) 

Schene’s second argument—that the government’s witnesses violated Rule

704(b) by testifying to the “ultimate issue” of Schene’s mental state—was not

raised before the district court and is largely incomprehensible in Schene’s

appellate brief. There is no indication in the trial transcript that the government’s

witnesses violated Rule 704(b).

3. Alleged references to homosexuality

Schene also claims that the government suggested that he was a

homosexual, which violated his right to due process and a fundamentally fair

trial. “When prosecutorial misconduct deprives a criminal defendant of a fair

trial, the defendant’s due process rights are violated, and reversal is warranted.” 

United States v. Gabaldon, 91 F.3d 91, 93 (10th Cir. 1996) (citations omitted). 

As we have explained previously, a prosecutor’s emphasis on a defendant’s

homosexuality can have “a tremendous negative impact on jurors” and is often

“designed solely to inflame the jury’s prejudices.” Neill v. Gibson, 263 F.3d

1184, 1201-02 (10th Cir. 2001) (citing cases). If a defendant “has both objected
25

contemporaneously and unsuccessfully moved the district court for a mistrial”

based on alleged prosecutorial misconduct, the appropriate standard of review is

for “an abuse of discretion.” Gabaldon, 91 F.3d at 93.

The government made two references to homosexuality during Schene’s

trial. The first was Officer Elliott’s description of the type of child pornography

found on Schene’s computer:

A I would say probably 90 to 95 percent of the images that were

child pornography were images of young boys. They may be

nude by themselves in a sexually provocative position, they

may be engaged in a homosexual act with another young boy

or an adult male.

Q And in your experience in working with cyber crimes and

these types of investigations, have you ever seen a woman who

trafficked in child pornography showing homosexual acts

between males?

A I have not.

Tr. at 107. Contrary to Schene’s contention, the government did not accuse him

of being a homosexual in this testimony, or suggest that homosexuals are more

likely to view child pornography. The government’s use of the word

“homosexual” was solely to describe the type of child pornography found on

Schene’s computer.

The second reference to homosexuality, however, is more problematic. 

Officer Elliott testified:

Q Now, on the internet history, were there instances you could

find where websites with homosexual themes had been visited?
26

A Yes, sir. I saw repeatedly, I saw the user under the Jay Martin

Schene account visit www.menforsexnow.com,

www.menforrentnow.com, www.cruisingforsex.com. And

there was an address at library.gaycafe.com that was visited

very frequently.

Q And did you look at a few of these websites?

A I did. I visited each of those. Each of them are gay oriented

for males. They all offered child pornography to view. They

are kind of a social networking site where you can post your

profile or post an ad requesting to meet with someone and that

kind of thing.

Tr. at 126. The prosecutor’s initial question in this exchange was arguably

improper. See Neill, 263 F.3d at 1201-02.

Nevertheless—and even assuming, arguendo, that Schene preserved this

argument for appeal by objecting and moving for a mistrial on this ground earlier

in the trial—the district court did not abuse its discretion in failing to grant a

mistrial based on the prosecutorial misconduct. The prosecutor’s question was

“singular and isolated,” United States v. Ivy, 83 F.3d 1266, 1288 (10th Cir. 1996)

(citation and internal quotation marks omitted), and Officer Elliott quickly refocused his testimony on the fact that the websites “all offered child pornography

to view.” Tr. at 126. Given the evidence against Schene, moreover, the alleged

prosecutorial misconduct was not “flagrant enough to influence the jury to convict

on grounds other than the evidence presented.” Ivy, 83 F.3d at 1288 (citations

and internal quotation marks omitted). Reversal is not warranted on these

grounds.
7

 Schene also mentions Exhibit 12 in passing, but he does not explain how

this piece of evidence would violate Rule 402, 403, or 404(b). Exhibit 12 is

AOL’s disclosure of the identity of butwhoishe and handsomehorn, and the

district court did not abuse its discretion in admitting it into evidence. We will

not address Exhibit 12 in additional detail.

27

D. Allegedly irrelevant and prejudicial evidence

Lastly, Schene challenges the district court’s decision to admit Exhibits 5,

6, 7, 8, 9, 10, 11, and 14. He argues that, given his willingness to stipulate that

the images were child pornography, any images were irrelevant and unfairly

prejudicial under Rules 402 and 403 of the Federal Rules of Evidence. Schene

also contends that Exhibits 8, 9, and 14—i.e., the exhibits containing images not

linked to a specific count in the indictment—were admitted in violation of Rule

404(b), as was the Real Player history in Exhibit 6.7

 

Our review of the district court’s decision to admit evidence is for an abuse

of discretion. Chisum, 502 F.3d at 1241. Under Rule 403 of the Federal Rules of

Evidence, otherwise relevant evidence “may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue delay, waste of time,

or needless presentation of cumulative evidence.” Fed. R. Evid. 403. In addition,

Rule 404(b) provides: 

Evidence of other crimes, wrongs, or acts . . . [may be] admissible

for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or

accident, provided that upon request by the accused, the prosecution

in a criminal case shall provide reasonable notice in advance of trial,
28

or during trial if the court excuses pretrial notice on good cause

shown, of the general nature of any such evidence it intends to

introduce at trial.

Fed. R. Evid. 404(b). Evidence is admissible under Rule 404(b) if the following

factors are satisfied: “(1) the evidence must be offered for a proper purpose; (2) it

must be relevant; (3) its probative value must not be substantially outweighed by

its potential for unfair prejudice under Rule 403; and (4) the court must give a

proper limiting instruction, if it is requested by the defendant.” United States v.

Moran, 503 F.3d at 1135, 1143-44 (10th Cir. 2007) (citing Huddleston v. United

States, 485 U.S. 681, 691-92 (1988)).

The district court did not abuse its discretion in admitting the exhibits that

Schene challenges on appeal. In United States v. Campos, 221 F.3d 1143, 1148

(10th Cir. 2000), we rejected a defendant’s argument that, under Rule 403, and

“in light of his offer to stipulate that those images constituted child pornography,

there was no reason to show them to the jury and to do so was unduly

prejudicial.” We explained that, in contrast to the evidence at issue in Old Chief

v. United States, 519 U.S. 172 (1997), the offer to stipulate in Campos involved

“the gist of the government’s current case against [the defendant]—the two

pornographic images that he allegedly transported via computer.” Campos, 221

F.3d at 1149. Likewise, in the instant case, the images charged in the

indictment—and admitted as evidence in Exhibits 5, 7, 10, 11, and 13—were the

gist of the government’s current case against Schene. The government was
8

 In his Reply Brief, Schene concedes that, under Campos, the images

charged in the indictment were appropriately admitted into evidence.

29

entitled to prove its case, and given the charges against Schene, those images

were not unfairly prejudicial under Rule 403. See Old Chief, 519 U.S. at 186-87

(explaining that it is “unquestionably true as a general matter,” that “the

prosecution is entitled to prove its case by evidence of its own choice, or, more

exactly, that a criminal defendant may not stipulate or admit his way out of the

full evidentiary force of the case as the Government chooses to present it”).8

 

The uncharged images in Exhibits 8, 9, and 14 are a closer call, but the

district court did not abuse its discretion in admitting them into evidence. 

Exhibits 8 and 9 were emails containing images of child pornography, sent from

outdoorguy to butwhoishe within minutes of other emails from butwhoishe to

outdoorguy. Exhibit 14 was an email containing seventy-six images of child

pornography that outdoorguy sent to himself. The government introduced these

emails to show intent and knowledge under Rule 404(b), and the district court

gave a limiting instruction on the matter. See Tr. at 88 (“Ladies and gentlemen,

to the extent that this evidence relates to anything other than the specific files that

are charged in the indictment, I would instruct you that it’s to be considered only

as it bears on the defendant’s knowledge or intent, and you should consider it

only for that limited purpose.”). Under 18 U.S.C. § 2252A(a)(5)(B), the

government had to prove that Schene “knowingly possess[ed]” the images of child
9

 For many of the same reasons discussed above, we reject Schene’s

relevance arguments under Rules 401 and 402 as to all of the exhibits being

appealed, and we will not address them in detail. See Old Chief, 519 U.S. at 178-

79.

30

pornography, and the district court did not abuse its discretion under Rules 403

and 404(b) in admitting these uncharged images for this limited purpose. See

United States v. Simpson, 152 F.3d 1241, 1249 (10th Cir. 1998) (affirming the

district court’s decision to admit similar evidence “to prove that (1) [the

defendant’s] possession of child pornography on his computer was not a mistake

or accident, and (2) he had knowledge of the nature of the material he was

receiving”). 

Likewise, the district court did not abuse its discretion in admitting Exhibit

6 into evidence. Exhibit 6—the Real Player history pertaining to the video

charged in Count 1—was introduced to show knowledge and intent, and the

district court gave a limiting instruction on the matter. See Tr. at 84 (explaining

that “the evidence comes in only as it bears or as it suggests intent or knowledge

on behalf of the defendant, and you should consider it only for that limited

purpose”). Exhibit 6 was not unfairly prejudicial under Rule 403. It was a

limited segment of the much broader Real Player history, and it pertained directly

to Schene’s knowing and intentional playing of the video charged in Count 1. 

The district court did not abuse its discretion.9

AFFIRMED.