# United States Court **of Appeals**  **f or the Fifth Circuit** 

**____________**
No. 23 -10717 Summary Calendar

**____________ United States of America,** 

Plaintiff

— Appellee **,**

versus
**Jonathan Fitzpatrick Koen,**

Defendant

— Appellant

**.**

**______________________________** Appeal from the United States District Court for the Northern District of Texas USDC No. 4:22

- CR

- 373 -1

**______________________________** Before **Wiener, Stewart,** and **Douglas,** Circuit Judges

**. Per Curiam**  **:** *****

Defendant

- Appellant Jonathan Fitzpatrick Koen appeals his convictions for four counts of sexual exploitation of a child, in violations of 18 U.S.C. § 2251(a), and one count of attempted obstruction of an official proceeding, in violation of 18 U.S.C. § 1512( c)(2), (j). The convictions are

**_____________________**

* This opinion is not designated for publication. See **5th Cir . R.**  47.5. United States Court of Appeals Fifth Circuit 

### FILED June 3, 2024 Lyle W. Cayce Clerk Case: 23-10717 Document: 56-1 Page: 1 Date Filed: 06/03/2024No. 23

- 10717

2 the result of Koen’s engagement in a sexual relationship with M inor V ictim
O ne (MV1). Koen argues that (1) his § 1512 conviction should be vacated because lay opinion testimony from a law enforcement official regarding the official’s interpretation of the meaning of a recorded phone conversation and a gesture
viol ated Federal Rule of Evidence 701; (2) the district court erred in imposing special conditions of supervision that were not narrowly tailored to his individual case and were not related to the statutory sentencing factors ; and (3) § 2251 exceeds Congress’s commerce authority. Because Koen did not raise these issues in the district court, review is for plain error only. See
U

nited States v. Shows Urquidi , 71 F. 4th 357, 372 (5th Cir.), cert. denied , 144 S. Ct. 268 (Oct. 2, 2023); United States v. Sanches , 86 F. 4th 680, 684

- 85 (5th Cir. 2023) ; United States v. Ellis , 720 F.3d 220, 224

- 25 (5th Cir. 2013).

Rule 701 limits non

- expert opinion testimony to that which is “(a) rationally based on the witness’s perception; [and] (b) helpful to clearly

un derstanding the witness’s testimony or determining a fact in issue. ” **Fed.**
**R. Evid.** 701. Lay opinion testimony that is permissible under Rule 701 “has the effect of describing something that the jurors could not otherwise experience for themselves by drawi ng upon the witness’s sensory and experiential observations that were made as a first

- hand witness to a particular event.” United States v. Haines , 803 F.3d 713, 733 (5th Cir. 2015) (emphasis in the original) (internal quotation marks and citation omitted ). “Testimony on topics that the jury is fully capable of determining for itself is not” admissible because it does not help the jury to clearly understand the testimony of the witness. Id.

Koen specifically asserts that the law enforcement official wa s no more qualified than the jury to interpret the meaning of the conversation, an d
that the testimony was not helpful but essentially usurped the jury’s role as Case: 23-10717 Document: 56-1 Page: 2 Date Filed: 06/03/2024No. 23

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3 factfinder. Even if Koen w ere correct that the district court committed plain

error by allowing this testimony, he cannot show that the error affect ed his substantial rights. “A defendant demonstrates that an error had an effect on his substantial rights when he shows a reasonable probability that the jury, absent the error, would have acqu itted him.” United States v. Oti , 872 F.3d 678, 693 (5th Cir. 2017). Here, apart from the law enforcement official’s lay testimony regarding the interpretation of a recorded jail conversation
between Koen and MV1 , there was ample evidence of Koen’s attem pted obstruction of an official proceeding. We t he refore affirm the district court
on this issue. See United States v. Haines , 803 F.3d 713, 734 (5th Cir. 2015).

Koen next challenges the imposition of the supervised release
conditions (1) prohibiting him fr om possess ing any pornographic material or material sexually depicting minors under 18 years old, (2) requiring him to provide his probation officer with all business and personal financial information, (3) requiring him to refrain from opening any new lines of credit without prior authorization until any restitution obligation is satisfied, and (4) requiring him to work full time unless excused

. Because his crime was “sexual in nature, it was reasonable for the district court to restrict [his]

access t o sexually stimulating material more broadly in an effort to prevent
future crimes or aid in his rehabilitation.” Ellis , 720 F.3d at 227. Accordingly, Koen cannot demonstrate plain error in the imposition of a lifetime ban on adult pornography

. Id. ; see also U nited States v. Ab b ate , 970 F.3d 601, 606 (5th Cir. 2020).
Regarding the condition requiring Koen to obtain employment : E ven if he could demonstrate a clear or obvious error, given that the condition is
not absolute and can be modified, Koen cannot demonstrate that it seriously affects the fairness, integrity, or public reputation of the judicial proceeding. See United States v. Prieto , 801 F.3d 547, 554

- 55 (5th Cir. 2015) (declining to correct plain error whe n defe ndant could not meet the requirements of the Case: 23-10717 Document: 56-1 Page: 3 Date Filed: 06/03/2024No. 23

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4 fourth prong because the complained of special condition of supervised release was modifiable and the defendant had previously overlooked two opportunities to object to the condition). As to the two financial r eporting
conditions , the Government concedes that the y should be stricken from the judgment because the district court did not impose restitution or fines. See under U.S.S.G. § 5D1.3(d)(2), (3); Ab b ate , 570 F.3d at 606

- 07 (narrowing scope of supervised re lease condition in accord with district court’s intent and affirming judgment as modified); United States v. Sealed Juvenile , 781 F.3d 747, 758 (5th Cir. 2015) (striking an unreasonably restrictive supervised release condition and affirming the judgment as modified). Accordingly, the judgment is **MODIFIED** to strike the two financial reporting conditions
from it

. Finally, as to Koen’s contention that § 2251 exceeds Congress’s authority under the Commerce Clause, we have repeatedly held that “the
Commerce Cla use authorizes Congress to prohibit local, intrastate production of child pornography where the materials used in the production
were moved in interstate commerce.” United States v. Bailey , 924 F.3d 1289, 1290 (5th Cir. 2019) (per curiam); United States v. Dickson , 632 F.3d 186, 192 (5th Cir. 2011); United States v. Kallestad , 236 F.3d 225, 22 7

– 31 (5th Cir. 2000). Koen concedes that th is issue is foreclosed and that he raises it only
to pr eserve it for possible future appellate review.

The district court’s judgment is **AFFIRMED** as **MODIFIED**

. Case: 23-10717 Document: 56-1 Page: 4 Date Filed: 06/03/2024