# United States Court of Appeals **For the Eighth Circuit**

___________________________ No. 14-2969

___________________________ United States of America

lllllllllllllllllllll Plaintiff - Appellee

v. David Lee Emmert, Jr.

lllllllllllllllllllll Defendant - Appellant

____________ Appeal from United States District Court for the Southern District of Iowa - Davenport

____________ Submitted: January 15, 2016 Filed: June 15, 2016

____________ Before WOLLMAN, MELLOY, and COLLOTON, Circuit Judges.

____________
MELLOY, Circuit Judge.

David Emmert, Jr., was convicted by a jury of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B ) and 2252(b)(2). The district court 1

1 The Honorable James E. Gritzner, Unite d States Chief District Judge for the Southern District of Iowa.sentenced Emmert to 240 months in prison and ordered him to pay $500 in restitution to one of his victims. Emmert appeal s, arguing the district court erred in: (1) admitting evidence of his prior sexua l abuse conviction a nd uncharged sexual abuse of a minor; (2) enhancing his senten ce based on an adult conviction for sexual assault that occurred when Emmert was 17 y ears old; and (3) ordering restitution. We affirm.

I. Background

This case began as a sexual abuse inve stigation in February 2010 in response to allegations that Emmert had sexually abused his 13-year-old daughter, LE. On February 12, 2010, officials obtained a s earch warrant and conducted a search of Emmert’s home. During the search, police found a desktop computer with a webcam, a laptop computer, 39 DVDs, and an extern al hard drive. The DVDs contained sexually explicit images and videos of JS, a girl who had been fourteen or fifteen years old when the images we re recorded. The external hard drive contained images of at least three different minor females: DF from Ohio, LM from Georgia, and DC from Nevada. All three were thirteen or fourteen years old when the images were recorded. Investigators also found programs related to hacking and webcam infiltration on Emmert’s desktop computer. During the course of the investigation, officials learned Emmert had been convict ed for sexually abusing his younger sister, EB, in 1989, when Emmert was 17.

On December 11, 2011, a grand jury i ndicted Emmert on charges of sexual exploitation of a child, in violation of 18 U.S.C. §§ 2251(a), 2251(e), and 3559(e), and possession of child pornography, in viol ation of 18 U.S.C. § 2252(a)(4)(B) and 2252(b)(2). On December 21, 2011, the gove rnment advised Emmert that he faced increased penalties if convicted due to hi s prior conviction for sexually abusing EB. Specifically, the potential penalty for po ssession of child pornography increased from

-2-a ten-year maximum sentence to a ten- year minimum senten ce and a twenty-year maximum sentence.

Before trial, the government dismissed th e charge for sexual exploitation of a child. Emmert also filed two motions in limine, suggesting he would face unfair prejudice if the government were allowe d to introduce evidence of: (1) his 1989 conviction for sexual abuse of EB, and (2) the uncharged allegations of sexual abuse of LE. The district court denied Emme rt’s motions and permitted the government to use evidence relating to EB and LE under Rule 414. The district court provided a cautionary instruction to jurors regarding this evidence.

A jury trial commenced on May 5, 2014, regarding the remaining count of possession of child pornography. EB, LE, a nd four minor females testified against Emmert. JS testified about her two-year online relationship with Emmert, during which he threatened to hack her comput er if she did not provide certain sexually explicit images. LM and DC testified th at they were asked to perform sexually explicit acts over webcam and knew some one was watching, but they did not know they were being recorded. DC learned sh e was being recorded when her mother found out about an explicit video of her posted on a website. LM also learned videos of her had been recorded from other people who saw the videos online. DF testified she did not know or believe that anyone was wa tching her through her webcam until Emmert contacted her and threatened to publish exp licit images of her unless she followed his orders. When DF created a new ema il account to escape Emmert’s harassment, Emmert eventually tracked her down and published 135 explicit images of DF on the social networking and photo sharing site, Flickr, as punishment. An investigator testified that images of JS, DF, LM, a nd DC were found on Emmert’s external hard drive and his DVDs.

On May 9, 2014, the jury found Emmert guilty of possessing child pornography, including at least 545 videos and 180 images. The district court

-3-sentenced Emmert to 240 months in prison and a lifetime of supervised release and ordered him to pay $500 in restitution to the family of DC to cover medical expenses related to suicide attempts and cutting herself. Emmert appeals.

II. Discussion

Emmert argues the district court erred in: (1) admitting Rule 414 evidence of a prior sexual abuse conviction and uncharged sexual abuse of a minor; (2) enhancing his sentence based on an adult convicti on of sexual assault that occurred when Emmert was 17 years old; and (3) ordering restitution.

A. Rule 414 Evidence

We review evidentiary rulings for abuse of discretion. United States v. Never Misses A Shot , 781 F.3d 1017, 1027 (8th Cir. 2015). Rule 414 provides: “In a criminal case in which a defendant is accu sed of child molestation, the court may admit evidence that the defendant committed any other child molestation.” Fed. R. Evid. 414(a). “Child molestation” incl udes acts relating to child pornography which are prohibited by 18 U.S.C. chapter 110. Id. 414(d)(2)(B). The evidence can be used for any purpose for which it is relevant, “including the defendant’s propensity to commit such offenses.” United States v. Gabe , 237 F.3d 954, 959 (8th Cir. 2001). Evidence of a prior child molestation is relevant if it was “committed in a manner similar to the charged offense.” Never Misses A Shot , 781 F.3d at 1027 (quoting United States v. Rodriguez , 581 F.3d 775, 796 (8th Cir. 2009)). If the evidence is relevant, “admissibility hinges on whether the testimony’s probative value is substantially outweighed by one or more factors enumerated in Rule 403.” Id. In evaluating admissibility of Rule 414 evid ence, placing limits on the testimony and providing cautionary jury instructions may indicate that the district court properly balanced the probative value with th e risk of unfair prejudice. See United States v. Crow Eagle , 705 F.3d 325, 328 (8th Cir. 2013).

-4-Here, Emmert argues his prior convic tion for sexual abuse of EB and the alleged sexual abuse of LE are too dissimilar to be relevant to the instant charged offense of possession of child pornography. In particular, Emmert contends the nature of the offenses are different because he knew EB and LE were minors, but did not know three of the alleged victims of ch ild pornography were minors. In addition, Emmert claims that his conviction for sexually abusing EB is too remote to the current proceeding and that the testimony of LE regarding the uncharged sexual abuse is unreliable. Because EB and LE were the first witnesses called by the government, Emmert contends their testimony was highly prejudicial in shaping the jury’s first impression of him.

As the district court concluded, the evidence that Emmert sexually abused EB and LE is probative of Emmert’s interest in underage girls. E mmert’s sexual abuse and child pornography victims were simila r in age, and Emmert performed or possessed images depicting similar explic it acts on each victim. In this way, Emmert’s prior conduct shows he has a propensity for exploiting young girls and connects him to the pornographic images found on his hard drive. The district court tempered the prejudicial effect of this evidence by providing a jury instruction on propensity evidence. Mo reover, for Rule 414 purposes, it does not matter that Emmert’s prior sexual abuse of EB occurred up to twenty years before the instant offense. See Gabe , 237 F.3d at 960 (noting that Congress placed no time limit on Rule 414 evidence and permitting evidence of sexual abuse from twenty years ago). Thus, we affirm the district court’s decisi on to admit evidence of Emmert’s prior acts of sexual abuse.

-5-B. Sentencing Enhancement

Next, Emmert argues the district court violated the Eighth Amendment when it imposed a sentencing enhancemen t pursuant to 18 U.S.C. § 2252(b)(2). 2 “We review claims of constitutional error and issues of statutory construction de novo.” United States v. Smith , 656 F.3d 821, 826 (8th Cir. 2011) (quoting Royal v. Kautzky , 375 F.3d 720, 722 (8th Cir. 2004)).

At oral argument, Emmert’s couns el cited United States v. Sykes , 809 F.3d 435 (8th Cir. 2016), in which we considered whether the Eighth Amendment prohibits the use of a juvenile court conviction for enhancement purposes under the Armed Career Criminal Act (“ACCA”). Although si milar to the issue here, Sykes does not foreclose arguments that the § 2252(b) enhancem ent is distinguishable from the ACCA enhancement. Rather, we l ook to United States v. Woodard , 694 F.3d 950, 953 (8th Cir. 2012), where we held that the Eighth Amendment does not prohibit the use of a juvenile adjudication as the basis for a pplying the § 2252(b) sentencing enhancement. In so holding, we relied on a prior holding that a juvenile adjudication may constitute a prior conviction with regard to th e ACCA sentencing enhancement. See United States v. Smalley , 294 F.3d 1030, 1031 (8th Ci r. 2002). In Woodard , we “appl[ied] the [Smalley ] analysis . . . [to] hold that a juve nile adjudication may be considered a prior conviction under 18 U.S.C. § 2252(b).” Woodard , 694 F.3d at 953.

Here, we are presented with a constitutional, rather than statutory, question. As discussed above, we have determined that ACCA sentencing enhancements based on convictions for crimes committed as a juve nile do not violate the Eighth Amendment. Sykes , 809 F.3d at 440; United States v. Jones , 574 F.3d 546, 553 (8th Cir. 2009). Considering the logic of Woodard , such convictions necessarily may be considered

2 Section 2252(b)(2) increases the mini mum and maximum sentences in child pornography cases where the defendant ha s a prior sexual abuse conviction.
-6-in determining whether the § 2252(b) enhan cement applies. Therefore, we conclude that the district court did not err when it considered Emmert’s prior conviction for sexual assault in applying the § 2252(b) sentencing enhancement.

C. Restitution

Finally, Emmert argues the district cour t erred in ordering restitution when no causal connection between his actions and DC’s losses had been established. “We review ‘the district court’s decision to aw ard restitution for an abuse of discretion and the district court’s finding as to the amount of loss for clear error.’” United States v. Beckmann , 786 F.3d 672, 681 (8th Cir. 2015) (quoting United States v. Kay , 717 F.3d 659, 666 (8th Cir. 2013)). Pursuant to 18 U.S.C. § 2259, “[r]estitution is proper . . . only to the extent that the defendant’s offe nse proximately caused the victim’s losses.” Id. at 682 (citing Paroline v. United States , 134 S. Ct. 1710, 1720 (2014)). The Supreme Court noted, “The unlawful conduct of everyone who reproduces, distributes, or possesses the images of [a] vic tim’s abuse . . . plays a part in sustaining and aggravating th[e] tragedy.” Paroline , 134 S. Ct. at 1726. “[I]n determining the amount of restitution owed to a child por nography victim by a defendant, district courts may consider a number of factors, though they should not treat the inquiry as a purely mathematical or mechanical exercise.” United States v. Evans , 802 F.3d 942, 950 (8th Cir. 2015).

Emmert argues the district court shoul d not have ordere d restitution because there was no evidence offered at sentencing to support a basis for awarding restitution. As documented in Emmert’s PSR and at oral argument, the parties disagree as to when DC was informed that Emmert possesse d images of her and when she sought
treatment. 3 Emmert contends that DC’s treatme nt predates the tim e when DC became

3 The Victim Impact portion of Emmert ’s PSR included DC’s claim for “$500 in restitution to cover her medical expenses (copayments and out of pocket expenses) from suicide attempts and cutti ng herself.” However, the PSR reflects that “[Emmert]
-7-aware that Emmert possessed the pornographic images of her. As such, Emmert concludes that he cannot be held responsible for a loss arising before he committed the instant offense. In awarding restitution, the district court concluded: “Because this is a rather modest claim under all of the circumstances and while it is not related to specific medical care, the fact of some emotional distress that might have supported the need for some medical care, I think the amount of $500 . . . is adequately supported by the record.”

During trial, DC testified that after l earning the explicit vide o of her was posted online, she felt “ashamed and really guilty.” DC’s mother also testified that DC “was devastated about the fact that all of thes e strange people were out there watching her.” Considering this testimony, the mere abse nce of evidence detaili ng the specific nature and timing of medical expenses is not suffi cient to show an abuse of discretion. Further, Emmert’s causation arguments are unavailing in light of Paroline , which recognized the existence of ongoing harm each time someone possesses images of a victim. A t trial, the j ury found beyond a reasonable doubt that Emmert possessed child pornography between 2005 and February 2010. For purposes of considering restitution, there was evidence at trial that Emmert possessed a video of DC as of June 9, 2008. R. Doc. 194, at 140-41, 203, 210. C ontrary to Emmert’s contentions, the government need not prove that DC i ncurred a loss after she learned Emmert’s identity in 2011. Rather, it is sufficient to show that DC received treatment subsequent to the time Emmert possessed images of her. Because the record supports

a finding that Emmert possessed images in June 2008, and DC requested restitution for treatment and services provided in 2009 and 2010, the district court did not abuse its discretion in concluding that Emmert proximately caused DC’s loss. Finally, despite the fact that DC has not documen ted each expense, the district court was entitled to rely on the testimony and a basic knowledge of me dical expenses in

object[ed] . . . , noting that DC’s request involve (sic) her medical care and treatment in 2009 and 2010 and that it was not until 2011 when it was discovered that [Emmert] possessed child pornography involving DC.”
-8-determining that $500 in restitution was a reasonable and likely underestimated sum for the type of medical and psychological tr eatment DC required. Thus, we conclude that the district court did not abuse its di scretion in awarding DC restitution, nor did the district court clearly err in determining the amount of the loss to be $500.

III. Conclusion

Based on the foregoing, we affirm the judgment of the district court.

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