NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

ADAM ALAN HENRY, 

Defendant-Appellant.

No. 18-10358 

D.C. No. 

1:13-cr-00409-DAD-BAM-1 

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of California

Dale A. Drozd, District Judge, Presiding

Argued and Submitted December 2, 2019

San Francisco, California

Before: W. FLETCHER, CLIFTON, and MILLER, Circuit Judges.

Adam Henry appeals his convictions for conspiracy to sexually exploit a 

minor and for knowingly receiving or distributing material involving the sexual 

exploitation of minors, in violation of 18 U.S.C. §§ 2251(a), 2251(e) and 2252(a). 

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. The district court did not abuse its discretion in denying Henry’s 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

JAN 13 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

motions for a mistrial, acquittal, or a new trial on the ground that the government 

improperly presented the testimony of a Child Protective Services officer who 

described statements Henry made after his arrest. The affirmative use of that 

testimony would have violated the Fifth Amendment because Henry’s statements 

were the product of a custodial interrogation conducted after Henry had invoked 

his right to counsel. See Edwards v. Arizona, 451 U.S. 477 (1981). But the district 

court ultimately concluded that the statements were nevertheless admissible to

impeach Henry’s inconsistent testimony. See Harris v. New York, 401 U.S. 222, 

224–26 (1971).

We need not decide whether the district court erred in admitting the 

testimony, or in not giving a limiting instruction directing the jury to consider it

only for impeachment purposes, see Henry v. Kernan, 197 F.3d 1021, 1029 (9th 

Cir. 1999), because any error was harmless beyond a reasonable doubt. The 

officer’s testimony—that Henry told him that “his wife was not part of the 

charges” brought against Henry—was presented for the limited purpose of

rebutting Henry’s inconsistent statements suggesting that his wife acted alone in 

producing, receiving, or distributing child pornography. The government never 

otherwise referenced the testimony in the presence of the jury. Moreover, the 

testimony had minimal inculpatory value on its own and was cumulative of other 

properly admitted evidence. That evidence overwhelmingly showed that Henry
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conspired with his wife to produce child pornography and knowingly received or 

distributed child pornography.

2. Nor did the district court err in concluding that the government 

complied with its discovery obligations. Henry argues that the government violated 

his due process rights because it did not disclose the identity of the victim depicted 

in an exhibit until just a few days before trial. But after holding an evidentiary 

hearing, the district court found that the government had made the exhibit

“reasonably available” to Henry’s forensic expert more than three years earlier, 

18 U.S.C. § 3509(m)(2)(A), and that finding is not clearly erroneous. See United 

States v. Zaragoza-Moreira, 780 F.3d 971, 977 (9th Cir. 2015). Even if the 

identification of a victim depicted in a previously disclosed exhibit constitutes 

“additional evidence,” the government complied with its duty to promptly disclose 

that information to Henry’s counsel before trial. See Fed. R. Crim. P. 16(c).

3. The district court also did not err in concluding that the evidence was 

sufficient to support Henry’s conviction for conspiracy to sexually exploit a minor

in violation of 18 U.S.C. § 2251(a). Section 2251(a) prohibits “producing any 

visual depiction” of a minor engaged in “sexually explicit conduct,” which is 

defined in relevant part as the “lascivious exhibition of the anus, genitals, or pubic 

area.” Id. § 2256(2)(A)(v); see also United States v. Weigand, 812 F.2d 1239, 

1244–45 (9th Cir. 1987). The government presented evidence that Henry and his 
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wife set up hidden cameras in their bathroom and bedroom shortly before their 14-

year-old babysitter arrived, and that they used those cameras to produce videos

depicting the minor undressing and showering. In one hidden-camera video, 

Henry’s wife encouraged the minor to try on and pose in lingerie. The government 

also presented evidence that Henry created 13 screenshot images from those videos

and saved the images in a password-protected file named after the minor, alongside 

other files containing child pornography.

We are not persuaded by Henry’s argument that because the videos only 

briefly depict the minor’s nude pubic area, the evidence is insufficient to support 

his conviction. Even assuming that the videos are not themselves depictions of 

sexually explicit conduct, any rational juror could have viewed the evidence as 

sufficient to establish that Henry conspired with his wife to produce such 

depictions. See United States v. Johnston, 789 F.3d 934, 937, 940–41 (9th Cir. 

2015) (affirming conviction for conspiracy to produce child pornography based on 

evidence that the defendant asked his co-conspirator to take photos of nude 

children); see also United States v. Sims, 708 F.3d 832, 835 (6th Cir. 2013) (“To 

convict [the defendant] of attempted production of child pornography, the

government does not need to prove that the videos of [the minor] were actually

lascivious.”).

Henry further argues that the evidence was insufficient to show that the 
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hidden cameras and other recovered devices were transported in interstate or 

foreign commerce. Because Henry raised that argument for the first time in his 

reply brief, we decline to consider it. See United States v. King, 257 F.3d 1013, 

1029 n.5 (9th Cir. 2001).

4. The district court did not err in denying Henry’s post-trial motions

based on alleged prosecutorial misconduct. Because Henry did not object during 

trial, his claim is subject to plain-error review. In his closing argument, the 

prosecutor told the jury that Henry’s counsel’s job was to “distract and to deflect

and to give [the jury] alternate facts or argue things that aren’t necessarily what 

actually happened.” Assuming, without deciding, that those comments were

improper, the statements were isolated in the context of the entire trial and did not 

“seriously affect[] the fairness, integrity, or public reputation of judicial 

proceedings.” United States v. Alcantara-Castillo, 788 F.3d 1186, 1191 (9th Cir.

2015) (quoting United States v. Combs, 379 F.3d 564, 568 (9th Cir. 2004)); id. at 

1194–95. Henry’s remaining allegations of prosecutorial misconduct lack merit.

AFFIRMED.