United States Court of Appeals

For the Eighth Circuit 

___________________________

No. 23-2196

___________________________ 

United States of America

 Plaintiff - Appellee

v.

Norman Thurber

 Defendant - Appellant

____________

Appeal from United States District Court 

for the Eastern District of Arkansas - Central

____________ 

Submitted: January 11, 2024

Filed: July 8, 2024

____________ 

Before SMITH, Chief Judge,1 GRUENDER and SHEPHERD, Circuit Judges. 

____________

SHEPHERD, Circuit Judge.

A jury convicted Norman Thurber of six counts of production of child 

pornography, in violation of 18 U.S.C. § 2251(a) and (e), stemming from videos 

recovered from Thurber’s cell phone depicting him engaging in sadomasochistic sex 

1

Judge Smith completed his term as chief judge of the circuit on March 10, 

2024. See 28 U.S.C. § 45(a)(3)(A). 
-2- 

acts with a minor female. The district court sentenced him to 20 years’ imprisonment 

on each count, with the sentences running concurrently, and imposed 10 years of 

supervised release to follow. Thurber appeals, challenging various trial rulings, the 

sufficiency of the evidence, and the district court’s imposition of standard conditions 

of supervised release in the written judgment that it did not orally pronounce at 

sentencing. Having jurisdiction under 28 U.S.C. § 1291, we affirm Thurber’s 

convictions, but we vacate the portion of the judgment imposing the standard 

conditions of supervised release and remand to the district court for resentencing 

limited to the standard conditions.

I. 

Thurber’s convictions arise from his conduct in June 2020, when he engaged 

in sexual relations with a 15-year-old girl. Thurber and his victim, A.H., initially 

began communicating online, before Thurber traveled from Heber Springs, 

Arkansas, to Corpus Christi, Texas, to pick her up. Together, they traveled back to

Thurber’s residence in Heber Springs, where they engaged in sexual activity. 

Thurber recorded six videos on his cell phone of A.H. engaged in various sex acts, 

which included A.H. performing oral sex on Thurber while wearing a dog collar and 

a leash, A.H. licking Thurber’s anus, and Thurber inserting a screwdriver into A.H.’s 

anus and vagina. In addition to the visual depictions, the videos captured Thurber’s 

voice providing commentary about the sex acts; in the video involving the 

screwdriver, Thurber can be heard commenting as he moves the screwdriver from 

A.H.’s anus to her vagina, “She’s even double holing, double fucking dipping, 

folks.” Further, in one video Thurber can be heard telling A.H. to “[l]ook at daddy,” 

and in another he is heard making A.H. respond to commands.

At some point on the same night the videos were recorded, A.H. left Thurber’s 

house and made contact with the Heber Springs Police Department. After initially 

telling officers that she was 18 years old, she admitted that she was 15 years old and 

that she had run away from her home in Corpus Christi. A.H. detailed her 

interactions with Thurber to the officers, after which they obtained a search warrant 
-3- 

for Thurber’s residence. Officers executed the search warrant and seized from 

Thurber’s residence two cell phones, one of which contained the six videos of A.H. 

engaging in sex acts that form the basis of Thurber’s convictions. When Thurber 

was questioned by officers after being given Miranda2 warnings, he admitted to 

meeting A.H. online and to driving to pick her up in Corpus Christi. He also 

admitted to the sexual interactions with A.H. but maintained that he believed that 

A.H. was 18 years old and that he and A.H. were in an adult, consensual relationship. 

Thurber also explained the graphic nature of the sex acts by claiming that he was 

into “BDSM” and liked “dirty sex.”

On December 1, 2020, Thurber was indicted on six counts of production of 

child pornography. Prior to trial, Thurber filed a motion, pursuant to Rule 412(b) of 

the Federal Rules of Evidence, seeking to introduce evidence that A.H. represented 

herself to Thurber as being 18 years old to support an affirmative defense of mistake 

of age. The district court ruled that Thurber was not entitled to present mistake of 

age as an affirmative defense, citing Eighth Circuit precedent. The district court 

ruled that Thurber could introduce evidence that A.H. represented herself to be 18 

years old, but only insofar as it was evidence that A.H. was actually 18 years old, as 

age was an element of the offense. 

The matter proceeded to a two-day jury trial in August 2022. At trial, the 

Government called as a witness Heber Springs Police Department Detective Daniel 

Malone, who testified that he had interviewed A.H. in June 2020, and that he had

reviewed text messages exchanged between Thurber and A.H. The Government 

then sought to introduce three exhibits, marked as Trial Exhibits 10, 11, and 12, all 

related to A.H.’s age. Exhibit 10 was a copy of a Texas Department of Public Safety 

Certified Abstract Record, which detailed A.H.’s biographical information, 

including her birthdate, which was in early 2005; Exhibit 11 was a photograph of 

A.H.’s Texas identification card, which included a photograph of A.H. and her 

birthdate; and Exhibit 12 was a copy of A.H.’s birth certificate and an accompanying 

2

Miranda v. Arizona, 384 U.S. 436 (1966).
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affidavit from a records custodian. Thurber objected to the introduction of each of 

the exhibits under the Confrontation Clause, asserting that the exhibits were 

testimonial. The district court sustained Thurber’s objection as to Exhibit 11, the 

photograph of A.H.’s identification card, but denied it as to Exhibits 10 and 12. The 

Government then questioned Detective Malone about Exhibits 10 and 12. Detective 

Malone stated that Exhibit 10, the copy of the abstract record, was issued on behalf 

of A.H. and confirmed that it was for the same person he had interviewed in Heber 

Springs in June 2020. He also confirmed that the exhibit contained A.H.’s personal 

information according to the state of Texas, including her birthdate, and testified that 

the picture of the individual on the Exhibit was the same person he had interviewed. 

Detective Malone testified that Exhibit 12 appeared to be a birth certificate from the 

state of Texas for A.H., that it reflected her birthdate, that the birthdate was the same 

as the birthdate in Exhibit 10, and, based on that birthdate, A.H. would have been 15 

years old in June 2020.

During Detective Malone’s testimony, the Government also sought to 

introduce two photographs extracted from Thurber’s cell phone that A.H. sent to 

Thurber during their text-message exchange. Thurber objected to the introduction 

of these exhibits, asserting that the Government selected only portions of the 

text-message exchange between A.H. and Thurber and that the rule of completeness 

required the district court to allow the introduction of additional portions of the

conversation between A.H. and Thurber. The district court overruled the objection, 

and Detective Malone testified that he recognized the person in the two photographs 

as A.H. Detective Malone also testified that, based on his review of the text-message 

exchange, A.H. sent the pictures to Thurber because Thurber told her to do so. 

Detective Malone further testified about his interviews with Thurber and stated that 

Thurber told him that he had traveled from Heber Springs to Corpus Christi to pick 

A.H. up, and that this was consistent with the text messages Detective Malone had 

reviewed between Thurber and A.H.
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The Government also called as a witness FBI Special Agent Daniel Turner, 

who testified about his involvement in the investigation into Thurber. Agent Turner

testified about the process by which he extracted the text messages between Thurber 

and A.H. and videos of A.H. and Thurber from Thurber’s cell phone. Agent Turner 

spoke generally about his review of the text messages, and explained that during the 

text-message conversation, A.H. and Thurber discussed Thurber coming to pick 

A.H. up in Corpus Christi. Agent Turner also testified about Thurber’s trip to Texas 

to pick up A.H., which had been contemporaneously documented by the 

text-message exchange between Thurber and A.H. Agent Turner also stated that, in 

the text-message exchange, Thurber asked A.H. to send him photos of herself, and 

A.H. complied.

Agent Turner then testified about the contents of each of the six videos that 

formed the basis of the charges against Thurber, detailing to the jury what the videos 

depicted before the videos were played for the jury. The Government also sought to 

question Agent Turner about an additional video that was recovered from Thurber’s 

cell phone which depicted A.H. standing nude in the shower with her face in full 

view but was not charged as one of the counts in the indictment. Thurber objected 

to the introduction as exhibits of the video of A.H. standing nude in the shower and 

a still image of A.H. pulled from that video, arguing that neither exhibit was charged 

in the indictment, that the additional exhibits were cumulative as proof A.H. was the 

individual in the videos, and that the introduction of these exhibits was prejudicial 

to Thurber. The district court overruled the objection, after which Agent Turner 

testified about the video, explaining that it showed A.H. standing nude in the shower 

and being instructed on what to say by Thurber.

At the close of the evidence, Thurber moved for a judgment of acquittal, 

asserting that the evidence was insufficient for a jury to find him guilty beyond a 

reasonable doubt. As relevant to this appeal, Thurber specifically challenged the 

sufficiency of the evidence to prove A.H.’s age and Thurber’s intent to use, coerce, 

entice, induce, persuade, or employ A.H. to engage in the sex acts for the purpose of 

making a visual depiction of a minor, asserting that he acted with the purpose of 
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creating a visual depiction of two consenting adults. The district court denied the 

motion, concluding that the record contained sufficient evidence to allow the jury to 

make the determination that the Government proved its case beyond a reasonable 

doubt.

The jury returned a guilty verdict on all counts. The district court sentenced 

Thurber to 20 years’ imprisonment on each count, with the sentences to run 

concurrently, and 10 years of supervised release. As to supervised release the district 

court stated at sentencing that it was imposing as special conditions that Thurber 

participate in sex offender treatment; be subject to computer monitoring; not access 

the internet without approval of his probation officer; not have any direct contact 

with the victim or children under the age of 18 without the permission of his 

probation officer; not go to or remain at any place where children under the age of 

18 are likely to be; receive a mental-health assessment; and cooperate with the 

probation office’s direction to report to any agencies for sexual predator and sexual 

offender notification and registration statutes. The district court did not impose any 

other conditions of supervised release at the hearing, but when the final judgment 

was entered, the district court included 13 standard conditions of supervised release 

that it had not mentioned at the sentencing hearing.

II. 

Thurber first asserts that the district court violated his Confrontation Clause 

rights when it allowed the Government to introduce the Texas Department of Public 

Safety Certified Abstract Record and a copy of A.H.’s birth certificate. Thurber 

asserts that the exhibits are testimonial in nature, implicating his right to confront 

the witnesses against him, specifically alleging that the Government used these 

Exhibits to avoid calling A.H. as a witness, where she would be subject to 

cross-examination. “Although we typically review evidentiary rulings for an abuse 

of discretion, de-novo review applies when a constitutional right is at stake.” United 

States v. Zephier, 989 F.3d 629, 635 (8th Cir. 2021) (citations omitted). “Under the 

Sixth Amendment, a defendant has the right to confront those who ‘bear testimony’ 
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against him. Therefore a witness may not give ‘testimony against a defendant’ 

without appearing at trial, unless that witness is unavailable and the defendant had 

previously had an opportunity for cross-examination.” United States v. Causevic, 

636 F.3d 998, 1002 (8th Cir. 2011) (citations omitted). 

With regard to documents that a defendant asserts violate the Confrontation 

Clause, “the threshold issue is whether the record being proffered is testimonial in 

nature.” United States v. Thompson, 686 F.3d 575, 581 (8th Cir. 2012). “Although 

the [Supreme] Court in Crawford[ v. Washington, 541 U.S. 36 (2004)] declined to 

define the term ‘testimonial,’ it gave examples of documents that usually fall within 

the ‘core class of testimonial statements’ covered by the Confrontation Clause, 

including ‘affidavits, custodial examinations, [and] prior testimony that the 

defendant was unable to cross-examine.’” Causevic, 636 F.3d at 1002 (third 

alteration in original) (citations omitted). “Business and public records are generally 

admissible absent confrontation not because they qualify under an exception to the 

hearsay rules, but because—having been created for the administration of an entity’s 

affairs and not for the purpose of establishing or proving some fact at trial—they are 

not testimonial.” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324 (2009). The 

Confrontation Clause “bars the admission of documents kept in the regular course 

of business as part of a regularly conducted business activity ‘if the regularly 

conducted business activity is the production of evidence for use at trial.’” 

Thompson, 686 F.3d at 581 (citation omitted). 

First, the Texas Department of Public Safety Certified Abstract Record is not 

testimonial. Thurber asserts that this exhibit was created in preparation for trial 

because the abstract was obtained only five days before trial and A.H. was issued a 

Texas identification card for the first time only two months before trial. While the 

temporal proximity between both the time A.H. first obtained the identification card 

and trial and between the time the Government obtained the abstract and trial 

suggests a closer nexus between the two, the dispositive fact here is that the 

identification card and abstract were not created by the Texas Department of Public 

Safety in anticipation of litigation. See United States v. Williams, 720 F.3d 674, 699 
-8- 

(8th Cir. 2013) (“We conclude that the fingerprint cards are business records 

admissible pursuant to Federal Rule of Evidence 803(6) because they were created 

‘in the regular course of business,’ and not ‘solely for an “evidentiary 

purpose,”’ . . . [so defendant’s] Sixth Amendment Confrontation Clause right was 

not violated.” (citations omitted)). 

That the Government relied on the abstract as evidence of A.H.’s age does not 

mean that the issuance of the abstract or identification card were for the purpose of 

litigation; just as the fingerprint cards in Williams “were created as part of a 

routine . . . procedure and not in anticipation of litigation” and “for the 

administration of an entity’s affairs and not for the purpose of establishing or proving 

some fact at trial,” so too was the Texas Department of Public Safety abstract. See

id. at 698 (citation omitted). Further, there is no evidence to suggest that the Texas 

Department of Public Safety was aware that the identification card or abstract were 

to be used by the Government as evidence of A.H.’s age. See id. at 699 (“Our 

determination is bolstered by the fact that the entity that took [defendant’s]

fingerprints—Arizona law enforcement—was unaware that [defendant] was wanted 

in Nebraska in connection with the marijuana conspiracy and, further, did not arrest 

[defendant] for conspiracy-related charges in Arizona.”). 

Second, the copy of A.H.’s birth certificate and the accompanying affidavit 

similarly are not testimonial. Thurber asserts that the document was undisputedly 

created in preparation for trial and therefore is testimonial. However, Thurber does 

not seriously assert that the birth certificate itself was created for the purposes of 

trial, instead arguing that the copy was prepared shortly before trial and for that 

purpose. As this Court has held before, “[b]ecause the . . . record itself was not 

created for the purpose of establishing or proving some fact at trial, admission of a 

certified copy of that record did not violate [defendant’s] Confrontation Clause 

rights.” Thompson, 686 F.3d at 582. Further, with respect to the accompanying 

affidavit from the records custodian, we have also held that a written certification 

attesting to the authenticity of the business record is not testimonial. United States 

v. Johnson, 688 F.3d 494, 504 (8th Cir. 2012).
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Finally, Thurber asserts that this Court held in Causevic that a record is 

testimonial where it is used as substantive proof of the charged crime. However, 

Thurber’s argument misreads Causevic. There, we found that the introduction of a 

judgment from a Bosnian criminal court violated the Confrontation Clause because 

the Government attempted to use it not merely to show that the defendant had 

previously been convicted but rather “to show that [defendant] in fact committed the 

crime of which he was convicted. This is a difference that makes for a legal 

distinction.” Causevic, 636 F.3d at 1002. Concluding from the conviction record 

that the facts underlying the conviction were true, particularly where the conviction 

had occurred in absentia and the document the Government sought to introduce had 

been translated into English, id. at 1001, requires an inferential step that implicates 

the Confrontation Clause. There is no similar issue here; the documents 

conclusively state A.H.’s age without requiring any inference as was required in 

Causevic. Because neither exhibit is testimonial, the Confrontation Clause is not 

implicated, and the district court did not err in overruling Thurber’s objection to their 

introduction. 

 

III.

Thurber next asserts that the district court’s admission of Government exhibits 

depicting A.H. standing nude in a shower resulted in a constructive amendment or 

variance to the indictment because the indictment does not contain charges based on

either this video of A.H. or the still image that was pulled from it. “We review de 

novo whether a constructive amendment to the indictment occurred.” United States 

v. Hill, 835 F.3d 796, 799 (8th Cir. 2016). “Whether a variance exists, and, if so, 

whether that variance prejudiced [the defendant] are questions of law that we review 

de novo.” United States v. Buchanan, 574 F.3d 554, 565 (8th Cir. 2009) (alteration 

in original) (citation omitted).3 “‘[A] constructive amendment changes the charge, 

3

The Government asserts that Thurber did not object to the introduction of the 

exhibits depicting A.H. nude in the shower. However, the trial transcript reveals that 

Thurber’s counsel specifically objected to the video and still image of A.H. on the 

basis that it was a “video or picture that’s not charged in the indictment.” This 
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while the evidence remains the same; a variance changes the evidence, while the 

charge remains the same.’ An indictment is constructively amended only by ‘the 

admission of evidence that proves the essential elements of an uncharged offense.’” 

United States v. Jefferson, 725 F.3d 829, 835 (8th Cir. 2013) (alteration in original) 

(citations omitted). 

We first consider Thurber’s claim that the inclusion of these exhibits resulted 

in a constructive amendment to the indictment.

A constructive amendment occurs when the essential elements of the 

offense as charged in the indictment are altered in such a 

manner—often through the evidence presented at trial or the jury 

instructions—that the jury is allowed to convict the defendant of an 

offense different from or in addition to the offenses charged in the 

indictment. With a constructive amendment, “the Fifth Amendment 

right not to ‘be held to answer for a capital or otherwise infamous crime, 

unless on a presentment or indictment of a Grand Jury’” is implicated, 

and thus a constructive amendment of an indictment is reversible error 

per se. In reviewing an appeal based on a claim of constructive 

amendment, we consider whether the admission of evidence or the jury 

instructions created a “substantial likelihood” that the defendant was 

convicted of an uncharged offense.

United States v. Whirlwind Soldier, 499 F.3d 862, 870 (8th Cir. 2007) (citations 

omitted). Here, there is no “substantial likelihood” that Thurber was convicted of 

an uncharged offense. The indictment against Thurber charged him with six separate 

counts and clearly identified the six videos that formed the basis of each count. At 

trial, the Government questioned Agent Turner about each individual video that 

formed the basis of a count in the indictment, and Agent Turner clearly identified 

the videos which related to each count. And, when the Government questioned 

Agent Turner about the exhibits depicting A.H. standing nude in the shower, it 

specifically stated that those exhibits did not form the basis of a charge in the 

objection was sufficient to preserve Thurber’s argument that a constructive 

amendment or variance to the indictment occurred. 
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indictment. Before asking Agent Turner to discuss these exhibits, the Government 

stated, “I want to move to the next video that you found that’s not charged in the 

indictment, but you talked about earlier there’s a video of AH in the shower. Is that 

right?” Because the Government clearly identified to the jury which videos were 

charged in the indictment and which video and associated image were not, we 

conclude that there is no substantial likelihood that the jury convicted Thurber of an 

offense that was in addition to those charged in the indictment. See id. We thus 

conclude that no constructive amendment occurred.

We next consider Thurber’s claim that the inclusion of the exhibits resulted in 

a fatal variance. 

A fatal variance occurs “when the evidence presented proves facts that 

are ‘materially different’ from those proved in the indictment.” A 

variance between the indictment and proof at trial is subject to the 

harmless error rule, and requires reversal “only if the variance actually 

prejudiced the defendant.” Our primary consideration “is whether the 

indictment fully and fairly apprised the defendant of the charges he or 

she must meet at trial.”

United States v. Stephens, 888 F.3d 385, 388 (8th Cir. 2018) (citations omitted). 

Here, there is no evidence that Thurber was not fully and fairly apprised of the 

charges that he would face at trial. While, as the Government concedes, Thurber did 

not receive Rule 404(b) notice that the exhibits would be used at trial, Thurber was 

well aware of the six counts against him and of the videos referenced in each count, 

and he was aware that the videos supporting the charges had been taken on a 

particular date, and that other videos had been captured on that date, even if they 

were not charged as separate counts in the indictment. See United States v. Begnaud, 

783 F.2d 144, 148 (8th Cir. 1986) (finding no fatal variance when the indictment set 

out two specific representations made in furtherance of a scheme to defraud, and the 

prosecution offered evidence of, and the jury instruction allowed the jury to consider, 

other misrepresentations defendants made). The jury was also instructed that each 

count was charged as a separate offense and that the jury was required to consider 
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the proof regarding each count separately. “[T]he [G]overnment never wavered in 

its theory of the case at trial,” United States v. Adams, 604 F.3d 596, 600 (8th Cir. 

2010), and the introduction of these exhibits did not alter the evidence Thurber was 

expected to defend against. We conclude that no fatal variance thus occurred. 

IV. 

Thurber also challenges the sufficiency of the evidence, asserting that the 

Government failed to meet its burden of proving, beyond a reasonable doubt, that he 

committed the offense of production of child pornography. According to Thurber, 

absent the introduction of the exhibits which he asserts were erroneously admitted, 

the evidence was insufficient to prove that A.H. was the person depicted in the 

videos or that she was under the age of 18. Further, Thurber asserts that the evidence 

was insufficient to prove that he voluntarily and intentionally employed, used, 

persuaded, induced, enticed, or coerced A.H. to engage in sexually explicit conduct 

for the purpose of producing a visual depiction of the conduct, as required by the 

statute. “Examining the evidence in the light most favorable to the verdict, ‘[w]e 

review de novo the denial of a motion for judgment of acquittal based on the 

sufficiency of the evidence.’” United States v. Hamilton, 929 F.3d 943, 945 (8th 

Cir. 2019) (alteration in original) (citation omitted). In conducting this review, “[w]e 

‘also accept all reasonable inferences in favor of the verdict.’ We will reverse the 

conviction only if no reasonable jury could have found the defendant guilty beyond 

a reasonable doubt.” Id. (citation omitted).

A defendant violates 18 U.S.C. § 2251(a) when he:

employs, uses, persuades, induces, entices, or coerces any minor to 

engage in, or who has a minor assist any other person to engage in, or 

who transports any minor in or affecting interstate or foreign 

commerce, or in any Territory or Possession of the United States, with 

the intent that such minor engage in, any sexually explicit conduct for 

the purpose of producing any visual depiction of such conduct or for 

the purpose of transmitting a live visual depiction of such conduct. 
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“A defendant ‘uses’ a minor for purposes of § 2251(a) if he photographs the minor 

engaging in sexually explicit conduct to create a visual depiction of such conduct.” 

United States v. McCloud, 590 F.3d 560, 566 (8th Cir. 2009). 

First, as stated in Part II, the district court properly admitted Exhibits 10 and 

12, which provided sufficient evidence for the jury to conclude that A.H. was under 

the age of 18 at the time Thurber made the video recordings. Further, these exhibits, 

in combination with the properly admitted exhibits of A.H. standing nude in the 

shower, with her face in full view, see supra Part III, were sufficient to allow a jury 

to conclude that A.H. was the individual depicted in the videos. Second, Thurber 

did not argue in his motion for judgment of acquittal that there was insufficient 

evidence regarding his intent to have A.H. engage in the sexually explicit conduct 

for the purpose of creating a visual depiction, which results in forfeiture of his claim. 

While Thurber challenged the intent element as part of his motion for judgment of 

acquittal, this argument was couched in terms of his intent to engage in the prohibited 

conduct with a minor rather than his intent to engage in the conduct more broadly. 

United States v. Samuels, 874 F.3d 1032, 1036 (8th Cir. 2017) (stating that “[w]hen 

a defendant raises specific grounds in a Rule 29 motion, grounds that are not 

specifically raised are waived on appeal” (citation omitted)). Where a defendant 

raises grounds he did not raise below, “[a]t most, we review such forfeited issues for 

plain error.” Id. And, with plain-error review, “the party seeking relief must show 

that there was an error, the error is clear or obvious under current law, the error 

affected the party’s substantial rights, and the error seriously affects the fairness, 

integrity, or public reputation of judicial proceedings.” United States v. Poitra, 648 

F.3d 884, 887 (8th Cir. 2011).

Under plain-error review, the record contains sufficient evidence to allow the 

jury to conclude, beyond a reasonable doubt, that Thurber had the requisite intent 

for A.H. to engage in sexually explicit conduct for the purpose of creating a visual 

depiction. The jury heard Agent Turner’s testimony about each of the videos and 

watched at least portions of each video. The videos were filmed from Thurber’s 

first-person point of view, suggesting that he was the one holding the recording 
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device, and Thurber’s narration on the videos suggests that he intended to make a 

visual depiction, specifically as to the videos where he is heard narrating the sex acts 

he is performing and using the word “folks,” as if he is communicating with an 

audience, and where he asks A.H. to “look at daddy” and respond to commands. 

Together, this evidence is sufficient for the jury to have made the requisite factual 

finding regarding Thurber’s intent. See United States v. Fortier, 956 F.3d 563, 567-

68 (8th Cir. 2020) (stating that certain facts, coupled with the content of videos, 

“allowed the jury to draw the inference that the recordings themselves were no 

accident and that [defendant] was trying to perfect them for future viewing”). The 

evidence was thus sufficient to support Thurber’s convictions. 

V.

Thurber next argues that the district court erred when it instructed the jury that 

a person is “used” for the purposes of § 2251(a) if “they are photographed or 

videotaped,” asserting that the instruction should have included the requirement that 

the videotape or photograph depict the minor “engaging in sexually explicit conduct 

to create a visual depiction of such conduct,” as stated in the statute. “Jury 

instructions are usually reviewed for abuse of discretion, but where . . . ‘statutory 

interpretation is required, “it is an issue of law that we consider de novo.”’” United 

States v. Mast, 938 F.3d 973, 975 (8th Cir. 2019) (citations omitted). However, 

where, as here, “a party fails to timely object to an instruction at trial, . . . we review 

only for plain error.” Poitra, 648 F.3d at 887.

Jury Instruction Number 7 instructed the jury as to the elements of the offense, 

followed by definitions of specific terms used in the elements. In relevant part, 

Instruction Number 7 reads as follows:

The crime of production of child pornography, as charged in 

Counts One through Six of the Indictment, has four elements, which 

are:
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First, at the time alleged, A.H.[] was under the age of eighteen 

years;

Second, Norman Thurber knowingly employed, used, persuaded, 

induced, enticed, or coerced A.H. to engage in sexually explicit 

conduct; 

Third, Thurber acted with the purpose of producing a visual 

depiction of such conduct; and 

Fourth, Thurber knew or had reason to know that such visual 

depiction was produced or transmitted using materials that have been 

mailed, shipped, or transported across state lines or in foreign 

commerce by any means, including by computer or cellular telephone. 

. . .

Definitions

A person is “used” if they are photographed or videotaped.

The term “sexually explicit conduct” means actual or simulated 

sexual intercourse, including genital-genital, oral-genital, anal-genital, 

oral-anal, and includes lascivious exhibition of the genitals or pubic 

area of any person. 

The district court did not err, much less plainly so, in instructing the jury as to 

the definition of the term “used.” In United States v. Lohse, we rejected a 

defendant’s argument, under a plain error standard of review, that § 2251(a)

“requires ‘either active participation by the minor or active sexual conduct to an 

unconscious minor by an adult defendant.’” 797 F.3d 515, 521 (8th Cir. 2015)

(citation omitted). There, the district court instructed the jury that the victim was 

“‘used’ if she was photographed or videotaped,” and we found “no plain error in the 

instructions,” particularly given circuit precedent finding that “[t]he ‘use’ 

component ‘is fully satisfied for the purposes of the child pornography statute if a 

child is photographed in order to create pornography.’” Id. (quoting United States 

v. Fadl, 498 F.3d 862, 866 (8th Cir. 2007)). Further, Thurber’s argument simply 
-16- 

ignores the rest of the jury instruction; each element of the offense is listed, and the 

language he challenges is part of the definitional section, not part of an element. 

Thurber’s argument is without merit, as “the entire charge to the jury, when read as 

a whole, fairly and adequately contains the law applicable to the case.” Thompson, 

686 F.3d at 579 (citation omitted).

VI. 

Thurber also asserts that the district court erred when it prevented him from 

presenting a complete defense by prohibiting him from introducing additional 

portions of the text messages he exchanged with A.H. Specifically, Thurber asserts 

that the text messages were relevant to a central issue in the case—whether A.H. was 

under 18 years old—and would have provided context to the text messages discussed 

with witnesses and the pictures from the messages that were introduced at trial. 

Thurber also asserts that the Government opened the door to this evidence by 

questioning its law enforcement witnesses about the text messages between A.H. 

and Thurber. “We review a district court’s evidentiary rulings for abuse of 

discretion. Reversal is warranted only if the district court’s evidentiary rulings 

constitute a clear and prejudicial abuse of discretion.” United States v. Never Misses 

A Shot, 781 F.3d 1017, 1027 (8th Cir. 2015) (citation omitted). But where “the 

challenge implicates a constitutional right, our review is de novo.” United States v. 

Arias, 74 F.4th 544, 550 (8th Cir. 2023). However, “[a]n error by the trial court, 

even one affecting a constitutional right, is forfeited—that is, not preserved for 

appeal—‘by the failure to make timely assertion of the right.’” United States v. 

Pirani, 406 F.3d 543, 549 (8th Cir. 2005) (en banc) (citation omitted). Preserving 

an error for review requires a defendant to make a timely objection that clearly states 

the grounds. Id. “Errors not properly preserved are reviewed only for plain error[.]” 

Id. 

The Government asserts that Thurber did not preserve his claim that he was 

not permitted to present a complete defense because he did not raise it below. We 

agree. When Thurber objected to the introduction of the photographs pulled from 
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the text messages exchanged between Thurber and A.H., his argument was premised 

on the rule of completeness and his assertion that, without the text messages being 

introduced, the photos lacked context. Nowhere in this discussion did Thurber raise 

the issue that the refusal to allow him to introduce the text messages between him 

and A.H. affected his ability to present a complete defense. Because Thurber did 

not clearly assert his inability to present a complete defense as a ground for his 

objection, we apply plain-error review to Thurber’s claim.

 “‘[T]he Constitution guarantees criminal defendants a meaningful 

opportunity to present a complete defense,’ which includes the right to present 

testimony of witnesses that is material and favorable to their defense and complies 

with the rules of evidence.” United States v. Holmes, 413 F.3d 770, 774 (8th Cir. 

2005) (alteration in original) (quoting Crane v. Kentucky, 476 U.S. 683, 690-91 

(1986)). Thurber argues that Rule 106 of the Federal Rules of Evidence mandates 

the inclusion of the entire text message exchange between A.H. and Thurber. Rule 

106 provides that “[i]f a party introduces all or part of a statement, an adverse party 

may require the introduction, at that time, of any other part—or any other 

statement—that in fairness ought to be considered at the same time. The adverse 

party may do so over a hearsay objection.” This rule “is ‘designed in part to avoid 

misleading impressions created by taking matters out of context.’” United States v. 

Farrington, 42 F.4th 895, 900 (8th Cir. 2022) (citation omitted). We have provided 

the parameters for when additional parts of a written or recorded statement should 

be admitted pursuant to the rule of completeness:

“Additional parts of [a] recording [or written statement] can be 

admitted if they are necessary to (1) explain the admitted portion, (2) 

place the admitted portion in context, (3) avoid misleading the trier of 

fact, or (4) [e]nsure a fair and impartial understanding.” “[T]he party 

urging admission has the burden to specify the portion of the testimony 

that is relevant to the issue at trial and that qualifies or explains portions 

already admitted.”

Id. (first, third, and fourth alterations in original) (citations omitted). 
-18- 

Here, the introduction of the additional portions of the text-message exchange 

did not serve any of these purposes. The Government introduced the images 

extracted from the text-message exchange for the purpose of showing that A.H. was 

the person in the videos that were charged in the indictment. The testimony the 

Government elicited from Detective Malone regarding the images extracted from

text messages was related to the question of why A.H. sent Thurber the images, with 

Detective Malone testifying that A.H. did so upon Thurber’s request. Further, Agent 

Turner testified generally about the text messages, stating that Thurber asked A.H. 

to send him pictures, that Thurber and A.H. talked about Thurber driving to Corpus 

Christi to pick up A.H., and that the text messages detailed Thurber’s trip from Heber 

Springs to Corpus Christi. 

Thurber’s stated purpose for requesting inclusion of additional portions of the 

text-message exchange was to rebut the Government’s evidence that A.H. was under 

the age of 18, with Thurber seeking to rely on text messages where A.H. represented 

her birth year to Thurber as 2002 rather than 2005. This is a purpose entirely 

unrelated to the Government’s aim in introducing the text-message images and 

related testimony, so it cannot be said to explain the admitted evidence, provide 

context, avoid misleading the jury, or ensure a fair and impartial understanding of 

the admitted evidence. See id. Because the purpose for which Thurber sought to 

introduce the additional portions of the text messages differed so markedly from the 

Government’s purpose in introducing extracted images from the text-message 

exchange and associated testimony, it was also more likely to mislead the jury and 

leave it with an unfair and partial understanding of the evidence. Further, before 

trial, the district court ruled that Thurber was not entitled to present evidence that he 

was mistaken about A.H.’s age, while permitting him to introduce evidence that 

A.H. actually was 18 years of age or older. Thurber’s claim that the rule of 

completeness requires admission of additional portions of the text-message

exchange is, at best, an attempted end run around this previous order. 
-19- 

Thurber also asserts that the Government opened the door to the introduction 

of the additional text messages by questioning Detective Malone and Agent Turner 

about specific contents of the text messages. We disagree. “The doctrine of opening 

the door allows a party to explore otherwise inadmissible evidence on 

cross-examination when the opposing party has made unfair prejudicial use of 

related evidence on direct examination.” United States v. Durham, 868 F.2d 1010, 

1012 (8th Cir. 1989) (citation omitted). “We have allowed the use of otherwise 

inadmissible evidence to clarify or rebut an issue opened up by . . . counsel on 

cross-examination.” United States v. Beason, 220 F.3d 964, 968 (8th Cir. 2000). 

Here, while the Government witnesses discussed some of the general content of the 

text messages, it did not open the door to allowing Thurber to introduce additional 

portions of the exchange that included A.H. misrepresenting her age to Thurber. 

Because, as stated above, the Government elicited this testimony for an entirely 

different purpose than Thurber sought to address, the additional portions of the text 

messages cannot be said to “clarify or rebut” an issue to which the Government 

opened the door. See id. The district court therefore did not err, much less plainly 

so, in refusing to allow Thurber to introduce additional portions of the text message 

exchange between A.H. and Thurber.

VII. 

Thurber next asserts that the district court violated his constitutional rights by 

not allowing him to present evidence regarding his lack of knowledge of A.H.’s real 

age. Specifically, Thurber asserts that the Ninth Circuit has held that the First 

Amendment requires that a defendant be allowed to present a reasonable 

mistake-of-age defense to a charge of production of child pornography pursuant to 

18 U.S.C. § 2251, and he was thus entitled to present that defense here. “We review 

the district court’s denial of a proffered legal defense de novo.” United States v. 

Young, 613 F.3d 735, 743 (8th Cir. 2010). Thurber’s argument is entirely without 

merit. While the Ninth Circuit has indeed held that the First Amendment demands 

that a defendant be able to present a reasonable mistake-of-age defense in a § 2251 

case, United States v. U. S. Dist. Ct. for the Cent. Dist. of Cal., 858 F.2d 534, 542 
-20- 

(9th Cir. 1988), this Court has explicitly held the opposite. In United States v. 

Wilson, we stated that while “[o]ther circuits have split as to whether the First 

Amendment requires reading a reasonable-mistake-of-age defense into [§ 2251],” in 

this Circuit, “the First Amendment does not require a reasonable-mistake-of-age 

defense to charges of producing child pornography in violation of section 2251(a).” 

565 F.3d 1059, 1068-69 (8th Cir. 2008). Thurber’s argument is therefore squarely 

foreclosed by our precedent. The district court did not err in denying Thurber the 

opportunity to present a mistake-of-age defense.

VIII. 

Finally, Thurber asserts that the district court imposed 13 standard conditions 

of supervised release in its written judgment that were not pronounced at sentencing, 

and, because the written judgment conflicts with the oral sentence, these 13 

conditions should be stricken. Generally, “[w]e review the district court’s 

imposition of the terms and conditions of supervised release for an abuse of 

discretion.” United States v. Drapeau, 644 F.3d 646, 655 (8th Cir. 2011) (citation 

omitted). However, we have reviewed de novo a claim that 

“imposing . . . supervised release conditions though a written judgment after the 

district court failed to expressly state those conditions at the oral pronouncement” 

violated a defendant’s double jeopardy rights. United States v. White Bull, 646 F.3d 

1082, 1096 (8th Cir. 2011). We thus review Thurber’s claim de novo. See United 

States v. Johnson, 765 F.3d 702, 710 (7th Cir. 2014) (“We review a claim of an 

inconsistency between the oral and written judgments de novo, comparing the 

sentencing transcript with the written judgment to determine whether an error 

occurred as a matter of law.”). 

At sentencing, the district court stated:

I’m going to order Mr. Thurber to the Bureau of Prisons for 20 years. 

I’m going to order him to ten years of supervised release upon 

release. . . . 
-21- 

. . . .

I’m going to order him to participate in sex offender treatment as 

part of his supervision. He’ll have to pay $10 per session with that. I’m 

going to order him -- I’m not going to order most of the -- he’ll be 76. 

I don’t know that I’m going to order him not to look at sexually explicit 

conduct.

. . . . 

. . . I will not go with a he can’t look at magazines or go in adult 

book stores, but I am going to order that he not -- that he have 

monitoring of his computer so that he can’t go on these websites where 

he can look at pornography or reach out to other young people or other 

people online and engage in sex. I don’t know the appropriate language 

for that right now, but I’ll include it in the judgment. That’s the gist of 

what I’m going to put as part of his supervised release. 

. . . I’m going to order that he not access the Internet without 

approval of the probation officer and that probation will install that 

software. Probation will be allowed to examine his computer during 

his supervised release to see what types of searches he’s been engaging 

in. 

 

. . . .

Probation will provide state officials with all information 

required for under the sexual predator and sexual offender notification 

registration statutes. 

I’m going to order that you not have any direct contact with any 

children under the age of 18 without permission of the probation 

officer. I’m going to order that you not go to or remain at any place 

where you know children under the age of 18 are likely to be. 

I’m going to order that you participate in a substance abuse 

treatment program which may include drug and alcohol testing, 

outpatient counseling. And you’ll have to pay the $10 copay, but that’s 

based on your ability to pay. 
-22- 

I’m going to order you to receive a mental health assessment. If 

it’s determined that you need counseling, you’ll have to receive that.

There is a $10 copay there, but that will also be waived if you’re unable 

to pay it. 

I’m going to order you to cooperate in the collection of DNA. 

I’m not going to order you to pay a fine, but I am going to order 

you to pay the $100 special penalty assessment times six for each count, 

which is $600.

The district also imposed a condition prohibiting Thurber from contacting A.H. at 

the Government’s request and removed the drug-and-alcohol testing condition after 

defense counsel objected. Shortly after the hearing, the district court entered the 

written judgment. The judgment included the special conditions announced at 

sentencing, but it also included 13 standard conditions that were not mentioned 

during the oral pronouncement. 

Although we have previously enunciated the rule that “[w]here an oral 

sentence and the written judgment conflict, the oral sentence controls,” United 

States v. Foster, 514 F.3d 821, 825 (8th Cir. 2008) (citation omitted), recently, in 

nearly identical circumstances, we vacated the standard conditions of supervised 

release that conflicted with the oral pronouncement and remanded for resentencing 

to allow the district court to consider in the first instance whether any standard 

conditions of supervised release were consistent with or necessarily included within 

the scope of the conditions announced at sentencing. See United States v. Walker, 

80 F.4th 880, 882 (8th Cir. 2023); United States v. Palomerez-Heredia, No. 23-2160, 

2024 WL 2316652, at *3 (8th Cir. May 22, 2024) (per curiam). Recognizing that, 

“[a]s a practical matter, it would be virtually impossible to supervise a defendant or 

verify compliance with the . . . special conditions that were orally pronounced 

without at least some of the standard conditions of supervised release being 

imposed,” and that, at resentencing, Thurber may challenge any standard conditions 

he feels should not be imposed upon him, Walker, 80 F.4th at 882, we follow the 

same approach here. We thus vacate the standard conditions of supervised release 
-23- 

and remand to the district court to consider them in the first instance. On 

resentencing, “[a]ny standard conditions of supervised release . . . which may be 

reimposed as part of any oral pronouncement may then be incorporated into an 

amended and reconciled judgment and commitment order.” Id. at 882-83. 

IX. 

For the foregoing reasons, we affirm Thurber’s convictions but vacate the 

portion of the standard conditions of supervised release that conflicts with the oral 

pronouncement. We remand to the district court for a resentencing consistent with 

this opinion.

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