06-4946-cr 

USA v. Rivera

1 UNITED STATES COURT OF APPEALS

2

3 FOR THE SECOND CIRCUIT

4

5 August Term, 2007

6

7

8 (Argued: April 22, 2008 Decided: October 15, 2008)

9

10 Docket No. 06-4946-cr

11

12 - - - - - - - - - - - - - - - - - - - -x

13

14 UNITED STATES OF AMERICA,

15

16 Appellee,

17

18 - v.-

19

20 CARLOS F. RIVERA, a.k.a.

21 CHAVIN1970, a.k.a. LATIN RICAN 70,

22

23 Defendant-Appellant.

24

25 - - - - - - - - - - - - - - - - - - - -x

26

27 Before: JACOBS, Chief Judge, KEARSE, KATZMANN,

28 Circuit Judges.

29

30 Carlos Rivera appeals from a judgment convicting him of

31 five counts involving the sexual abuse of children, entered

32 following a jury verdict in the United States District Court

33 for the District of Connecticut (Kravitz, J.). On appeal,

34 Rivera challenges (inter alia) the sufficiency of the

35 evidence on his conviction for production of child

36 pornography, arguing that certain photographs were not
2

1 “lascivious” within the meaning of the child pornography

2 laws. We affirm. 

3 MARJORIE M. SMITH, Piermont, NY,

4 for Defendant-Appellant.

5

6 ERIC J. GLOVER, New Haven, CT

7 (Kevin J. O’Connor, United

8 States Attorney, District of

9 Connecticut, on the brief,

10 William J. Nardini, of counsel),

11 for Appellee.

12

13 DENNIS JACOBS, Chief Judge:

14

15 Carlos Rivera appeals from a judgment of conviction

16 entered on October 24, 2006, in the United States District

17 Court for the District of Connecticut (Kravitz, J.),

18 following a jury trial at which he was found guilty of

19 charges involving sexual exploitation of children. Those

20 charges included coercion and enticement to sexual conduct,

21 travel with intent to engage in such conduct, and the

22 possession and production of child pornography. As a

23 recidivist, Rivera was sentenced to a mandatory term of life

24 imprisonment on the conviction for producing child

25 pornography. Two issues presented on appeal (misjoinder of

26 the offenses against the minor named Brian, and sentencing)

27 are controlled by established precedent and are addressed

28 briefly below. 
 Because the victims of Rivera’s crimes were minors,

1

only their first names were given at trial.

3

1 We write primarily to consider the District Court’s

2 jury instruction on the meaning of “lascivious” for purposes

3 of 18 U.S.C. § 2256(2)(A)(v). Rivera contends that his

4 photographs of a naked 16-year old male on a bed do not

5 satisfy the statutory definition. 

6

7 BACKGROUND

8 The evidence showed a pattern of predatory conduct.

9 Rivera met boys in Internet chat rooms, exchanged sexually

10 explicit messages and photographs with them, and arranged to

11 meet them for illicit sexual encounters. During one such

12 encounter, Rivera created the photographs that ground his

13 conviction for production of child pornography. 

14 Four of Rivera’s victims testified at trial, as follows

15 in our brief and bowdlerized summary.

1

16 Brian told Rivera that he was twelve years old and

17 lived in Nebraska. After some months of online chats about

18 sex (including explicit video images of Rivera), Brian

19 disclosed that his family was taking a trip to Washington,

20 D.C. Rivera drove from his Connecticut home, checked into
4

1 the hotel where Brian and his family were staying, and

2 enticed Brian to his room for sex--posting notes with his

3 screen name on a trail to his room, giving Brian a room-key

4 (which Brian hid from his parents and then returned),

5 confronting Brian in the lobby (with his parents nearby),

6 and leaving his room door ajar. GSA-11. When Brian

7 appeared, they engaged in oral and anal sex. GSA-14. By

8 that time, Brian was thirteen years old. 

9 Garrett told Rivera that he was fifteen years old (in

10 fact, he was fourteen). Rivera engaged Garrett in explicit

11 online chats, and arranged an encounter near their homes in

12 Connecticut. Garrett bicycled to a hotel near his house

13 where Rivera had suggested that they meet. When they were

14 unable to get a room, Garrett declined to accompany Rivera

15 to his house. A week later, they met in the woods outside

16 Garrett’s house, where they had anal sex. GSA-57. Garrett

17 asked Rivera to buy him a paintball gun for his birthday.

18 When Garrett sought to disengage, Rivera threatened to tell

19 all to Garrett’s mother; Garrett threatened to call the

20 police. GSA-61.

21 David was sixteen years old when he met Rivera online.

22 David agreed to meet Rivera for sex, and Rivera arrived
5

1 around midnight at David’s home in Massachusetts. David

2 sneaked out while his parents slept and went to a hotel with

3 Rivera. After the two showered together, Rivera took

4 several photographs of David lying naked on the hotel bed. 

5 David testified that Rivera “suggested a few positions” and

6 that he “complied.” GSA-65. Six of the photographs were

7 introduced at trial to evidence Rivera’s production of child

8 pornography. After oral and anal sex, Rivera drove David

9 home. GSA-67.

10 When Michael was sixteen, he and Rivera had online

11 chats about sex and exchanged photographs of themselves,

12 clothed and unclothed. Michael testified that after he

13 refused to meet Rivera for sex, “he blackmailed me and said

14 he was going to send those pictures that I sent him to

15 another student that goes to my school.” GSA-71. 

16 Rivera was captured by the police after Brian’s mother

17 found an incriminating note. A state trooper, posing as

18 Brian, engaged Rivera in an Internet chat about what had

19 transpired between them. When he was arrested, Rivera

20 declined to sign a form attesting that he had waived his

21 Miranda rights; however, he agreed to be interviewed by the

22 authorities for two hours. At trial, the arresting police
 The chart gathered data under the following headers: 2

name, age, year, virgin (Y or N), and “fucked” (number of

times). The government also introduced a handwritten

version of the same chart. 

 The template, saved under file name “BlackMail.doc,” 3

stated:

Hey ______ I decided to blackmail you. U WILL

have sex with ME in real LIFE, again, and you

WILL let me make a PORN video with you. IF

you don’t do as I say and let me do what I want,

I’ll write to your PARENTS at this address ______

6

1 detective testified that during the interview, Rivera

2 admitted to having had sex with Brian, who he thought

3 “looked young.” GSA-45-46.

4 A special agent of the FBI testified to the contents of

5 Rivera’s laptop computer, which included between 2,000 and

6 3,000 photographs of minors engaged in sexually explicit

7 conduct, including the pictures Rivera took of David and

8 photographs of Garrett and Michael that they had sent him; a

9 chart detailing Rivera’s sexual encounters (which listed

10 both Garrett and Brian); the record of an online chat in 2

11 which Rivera gloated about having had sex with several boys

12 (including Garrett and Brian); and a template blackmail

13 letter threatening to tell a minor’s parents that their

14 child is gay unless the minor agreed to make a pornographic

15 video with Rivera and to continue having sex with him. The 3
And I will let them know that you are GAY. I will

also send them info about your online “activities”

“chats” and will also tell them where they can

find more info/ NOTE: IF you banish [sic] from

online without giving in to my demands I will

still do what I just said above. U can’t hide, U

will be the loser.

7

1 government also introduced into evidence records of the

2 emails and online chats Rivera had exchanged with Brian,

3 Garrett, David and Michael.

4 The jury convicted Rivera on all five counts: two

5 counts of coercion and enticement, in violation of 18 U.S.C.

6 § 2422(b), one count of travel with intent to engage in

7 illicit sexual conduct, in violation of 18 U.S.C. § 2423(b),

8 one count of production of child pornography, in violation

9 of 18 U.S.C. § 2251(a), and one count of possession of child

10 pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). In

11 special interrogatories accompanying the verdict on count

12 four (for production of child pornography), the jury

13 identified four of the photographs of David as visual

14 depictions of sexually explicit conduct (a phrase explained

15 in the District Court’s jury charge), and therefore child

16 pornography.

17 The District Court imposed concurrent sentences of: 480
8

1 months’ imprisonment on counts one and two; 480 months’

2 imprisonment on count three; the mandatory term of life

3 imprisonment on count four; and 240 months’ imprisonment on

4 count five. The District Court also imposed mandatory and

5 discretionary restitution for the victims’ losses, including

6 their psychiatric treatment and care. 

7 

8 DISCUSSION

9 Rivera argues that his photographs of David do not

10 constitute child pornography, that is, that the evidence was

11 insufficient for a conviction on count four; in the

12 alternative, he contends that the jury was misled by the

13 District Court’s instructions. Rivera also challenges the

14 District Court’s denial of his motion to sever the counts

15 relating to Brian from the counts relating to his other

16 victims. Lastly, Rivera challenges his sentence on

17 constitutional grounds. 

18

19 I

20 It is illegal to entice or coerce a minor to engage in

21 “sexually explicit conduct for the purpose of producing any

22 visual depiction of such conduct.” 18 U.S.C. § 2251(a). 
 “Given to or expressing lust; lecherous” or 4

“[e]xciting sexual desires; salacious.” The American

Heritage Dictionary of the English Language (4th ed. 2006).

9

1 “[S]exually explicit conduct” is defined to include the

2 “lascivious exhibition of the genitals or pubic area of any

3 person.” Id. § 2256(2)(A)(v).

4 The term “lascivious” is not self-defining. See United

5 States v. Villard, 885 F.2d 117, 121 (3d Cir. 1989)

6 (“Whatever the exact parameters of ‘lascivious exhibition,’

7 we find it less readily discernable than the other, more

8 concrete types of sexually explicit conduct listed in

9 section 2256(2).”); United States v. Hill, 322 F. Supp. 2d

10 1081, 1084 (C.D. Cal. 2004) (“Lasciviousness is an elusive

11 concept, and courts have struggled to develop a test for

12 identifying it.” (footnote omitted)). But see United States

13 v. Frabizio, 459 F.3d 80, 85 (1st Cir. 2006) (“The statutory

14 standard needs no adornment.”). The dictionary definition

4

15 is of little help in drawing lines.

16 The leading case is United States v. Dost, 636 F. Supp.

17 828 (S.D. Cal. 1986), aff’d sub nom. United States v.

18 Wiegand, 812 F.2d 1239 (9th Cir. 1987). There, district

19 judge Thompson enumerated six factors that “the trier of

20 fact should look to . . . among any others that may be
10

1 relevant in the particular case.” Id. at 832. The “Dost

2 factors” are:

3 1) whether the focal point of the visual

4 depiction is on the child’s genitalia or pubic

5 area;

6

7 2) whether the setting of the visual depiction

8 is sexually suggestive, i.e., in a place or

9 pose generally associated with sexual

10 activity;

11

12 3) whether the child is depicted in an

13 unnatural pose, or in inappropriate attire,

14 considering the age of the child;

15

16 4) whether the child is fully or partially

17 clothed, or nude;

18

19 5) whether the visual depiction suggests

20 sexual coyness or a willingness to engage in

21 sexual activity;

22

23 6) whether the visual depiction is intended or

24 designed to elicit a sexual response in the

25 viewer.

26

27 Id. 

28 Here, the District Court charged the jury as follows,

29 using the Dost factors:

30 The term lascivious exhibition means a

31 depiction which displays or brings to view to

32 attract notice to the genitals or pubic area

33 of minors in order to excite lustfulness or

34 sexual stimulation in the viewer.

35

36 Not every exposure of the genitals or

37 pubic area constitutes a lascivious

38 exhibition. In deciding whether a particular

39 depiction constitutes a lascivious exhibition
11

1 which displays or brings to view to attract

2 notice to the genitals or pubic area of minors

3 in order to excite lustfulness or sexual

4 stimulation in the view, you should consider

5 the following questions . . . .

6

7 A-70. The court then described the Dost factors.

8 Rivera presses two arguments on appeal: first, that the

9 photos of David taken by Rivera do not fit the parameters of

10 the Dost factors, i.e., that the evidence was insufficient

11 to support a conviction under the jury charge that was

12 delivered; and second, that the Dost factors themselves are

13 infirm, and have been criticized by many courts.

14

15 A

16 A defendant challenging the sufficiency of the evidence

17 “bears a heavy burden.” United States v. Griffith, 284 F.3d

18 338, 348 (2d Cir. 2002). “Not only must the evidence be

19 viewed in the light most favorable to the government and all

20 permissible inferences drawn in its favor, but if the

21 evidence, thus construed, suffices to convince any rational

22 trier of fact of the defendant’s guilt beyond a reasonable

23 doubt,” the conviction must stand. United States v.

24 Martinez, 54 F.3d 1040, 1042 (2d Cir. 1995) (internal

25 citation omitted). 
12

1 A reasonable jury could--and did--find that the four

2 photographs depict the lascivious exhibition of a minor’s

3 genitals. The images all show David lying naked on a hotel

4 room bed, his genitals prominent at or about the center of

5 the frame. Two of the photographs depict David looking

6 directly at the camera: in one, David is lying on his chest,

7 his upper body raised on his elbows, while he looks over his

8 left shoulder toward the camera; in another, David lies on

9 his back, the right side of his body resting on his right

10 elbow. 

11 Although the Dost factors are not definitional, they

12 are useful for assessing the sufficiency of evidence, and

13 pose questions that are (at least) germane to the issue of

14 lasciviousness. Here, all four photographs arguably satisfy

15 several Dost factors: a bed is “generally associated with

16 sexual activity,” Dost, 636 F. Supp. at 832, and so is the

17 pose, lying down with legs spread; the subject is naked; one

18 photo, in which the subject’s head is turned to an unseen

19 observer (the photographer) suggests sexual encounter; and

20 the genital area is the focal point. Finally, these images

21 have context that reinforces the lascivious impression. 

22 David testified that Rivera arranged the poses and took the
13

1 photographs. Rivera was responsible for the mise-en-scène. 

2 A reasonable jury could therefore find that Rivera composed

3 the images in order to elicit a sexual response in a viewer4 -himself. These images are unquestionably “lascivious”

5 material, the production of which Congress intended to

6 crmiinalize.

7

8 B

9 “We review de novo the propriety of jury instructions.” 

10 United States v. Naiman, 211 F.3d 40, 50 (2d Cir. 2000). “A

11 jury instruction is erroneous if it misleads the jury as to

12 the correct legal standard or does not adequately inform the

13 jury on the law.” United States v. Walsh, 194 F.3d 37, 52

14 (2d Cir. 1999) (internal quotation marks omitted). The

15 government argues that we should review for plain error

16 because Rivera did not object to the jury instructions on

17 the precise ground he argues on appeal. We need not resolve

18 that issue, however, because we affirm the District Court’s

19 jury instruction as an accurate statement of the law.

20 As Rivera argues, use of the Dost factors has provoked

21 misgivings. See, e.g., Frabizio, 459 F.3d at 88 (“[T]he

22 Dost factors have fostered myriad disputes that have led
14

1 courts far afield from the statutory language. . . . [T]here

2 is a risk that the Dost factors will be used to

3 inappropriately limit the scope of the statutory

4 definition.”); Hill, 322 F. Supp. 2d at 1085 (“While the

5 Dost factors attempt to bring order and predictability to

6 the lasciviousness inquiry, they are highly malleable and

7 subjective in their application.”). But see Villard, 885

8 F.2d at 122 (“[T]he Dost factors provide specific, sensible

9 meaning to the term ‘lascivious,’ a term which is less than

10 crystal clear.”).

11 Tellingly, nearly all of the Dost-factor critics have

12 lined up behind an argument that is of no help to Rivera.

13 Their underlying concern is that the factors sweep too

14 narrowly, i.e., that “[t]he standard employed by the

15 district court was over-generous to the defendant . . . .” 

16 Wiegand, 812 F.2d at 1239 (emphasis added); see also

17 Frahizio, 459 F.3d at 88 (expressing concern that “the

18 Dost factors will be used to inappropriately limit the scope

19 of the statutory definition”); United States v. Wolf, 890

20 F.2d 241, 245 & n.6 (10th Cir. 1989) (“We do not hold that

21 more than one Dost factor must be present to constitute a

22 violation of 18 U.S.C. § 2251(a).”). However, this case
15

1 offers no occasion for considering the circumstances, if

2 any, in which the Dost factors might prove too “generous” to

3 defendants, an issue the Government does not press on

4 appeal.

5 Much criticism has focused on the fifth Dost factor,

6 which asks “whether the visual depiction suggests sexual

7 coyness or a willingness to engage in sexual activity.” 

8 Dost, 636 F. Supp. at 832. On direct appeal in Dost, the

9 Ninth Circuit considered that inquiry “over-generous to the

10 defendant in implying as to the 17-year-old girl that the

11 pictures would not be lascivious unless they showed sexual

12 activity or willingness to engage in it.” Wiegand, 812 F.2d

13 at 1244. To that court, the factor looked the wrong way--

14 “lasciviousness is not a characteristic of the child

15 photographed but of the exhibition which the photographer

16 sets up for an audience that consists of himself or

17 likeminded pedophiles.” Id. The court implied that a

18 simpler, more subjective test was called for: “the pictures

19 were an exhibition,” and the “exhibition was of the

20 genitals”; “[i]t was a lascivious exhibition because the

21 photographer arrayed it to suit his peculiar lust.” Id. 

22 Several other courts have concurred in this critique. See,
16

1 e.g., Frabizio, 459 F.3d at 89 (“The absence of a sexual

2 come-on . . . does not mean that an image is not lascivious

3 . . . . Children do not characteristically have countenances

4 inviting sexual activity, and the statute does not presume

5 that they do.”); United States v. Wolf, 890 F.2d 241, 245

6 (10th Cir. 1989) (“[T]he Ninth circuit clearly stated that

7 to violate 18 U.S.C. § 2251 the photographer need not

8 portray the victimized child as a temptress. We agree with

9 the Ninth Circuit’s interpretation of the statutory

10 language.”); Hill, 322 F. Supp. 2d at 1086 (“Almost any

11 facial expression--or lack thereof--could fairly be

12 described as one of these. . . . Not much help here.”). Of

13 course an innocent child can be coaxed to assume poses or

14 expressions that bespeak sexual availability when viewed by

15 certain adults, resulting in an image that “suggests sexual

16 coyness or a willingness to engage in sexual activity”

17 regardless of the child’s own characteristics.

18 The sixth Dost factor has also been criticized. It

19 asks “whether the visual depiction is intended or designed

20 to elicit a sexual response in the viewer.” Dost, 636 F.

21 Supp. at 832. See, e.g., Doe v. Chamberlin, 299 F.3d 192,

22 196 (3d Cir. 2002) (“The final Dost factor simply puts again
17

1 the underlying question: Is the exhibition lascivious?”);

2 Hill, 322 F. Supp. 2d at 1086 (“This factor has no

3 independent force.”). The First Circuit has labeled it “the

4 most confusing and contentious of the Dost factors,”

5 suggesting that it invites more questions than it answers:

6 Is this a subjective or objective standard,

7 and should we be evaluating the response of an

8 average viewer or the specific defendant in

9 this case? Moreover, is the intent to elicit

10 a sexual response analyzed from the

11 perspective of the photograph’s composition,

12 or from extrinsic evidence (such as where the

13 photograph was obtained, who the photographer

14 was, etc.)?

15

16 United States v. Amirault, 173 F.3d 28, 34 (1st Cir. 1999). 

17 After all, if the sixth factor were to focus on the

18 defendant’s “subjective reaction” to the photograph, as

19 opposed to the photograph’s “intended effect,” “a sexual

20 deviant’s quirks could turn a Sears catalog into

21 pornography.” Id.; see also Wiegand, 812 F.2d at 1245

22 (“Private fantasies are not within the statute’s ambit.”). 

23 The First Circuit has further questioned whether the inquiry

24 should be limited to “the four corners of the image” or

25 extend to evidence of the sexual exploitation involved in

26 making the image. Frabizio, 459 F.3d at 89-90; see also

27 Amirault, 173 F.3d at 34 (expressing doubt that a fact-
18

1 finder should consider “the context surrounding the creation

2 and acquisition of the photograph”). 

3 The Third Circuit has resolved the objection as

4 follows:

5 We must . . . look at the photograph, rather

6 than the viewer. If we were to conclude that

7 the photographs were lascivious merely because

8 [the defendant] found them sexually arousing,

9 we would be engaging in conclusory

10 bootstrapping rather than the task at hand--a

11 legal analysis of the sufficiency of the

12 evidence of lasciviousness.

13

14 Villard, 885 F.2d at 125. So, to that court, “rather than

15 being a separate substantive inquiry about the photographs,”

16 the sixth Dost factor “is useful as another way of inquiring

17 into whether any of the other five Dost factors are met.”

18 Id. 

19 Some of this criticism is mitigated once one

20 distinguishes between the production of child pornography

21 and possession. In Dost, the defendants were charged with

22 having produced child pornography. It was thus logical for

23 the Ninth Circuit to hold that the pictures were “a

24 lascivious exhibition because the photographer arrayed it to

25 suit his peculiar lust.” Wiegand, 812 F.2d at 1244. It is

26 a point of distinction that the defendants in Amirault,

27 Villard and Frabizio were charged with having possessed (or
19

1 transported) child pornography; there was no allegation that

2 they located the victims, arranged or posed the scenes, or

3 otherwise produced the visual depiction. The sixth Dost

4 factor is not easily adapted to a possession case. 

5 Similarly, the Dost factors are arguably of diminished

6 utility for purposes of Fourth Amendment analysis. See

7 Hill, 322 F. Supp. 2d at 1086-87 (advocating for test

8 dictating that “[i]f an image of a minor displays the

9 minor’s naked genital area, there is probable cause to

10 believe that the image is lascivious unless there are strong

11 indicators that it is not lascivious” (footnote and emphasis

12 omitted)). That concern is not implicated here.

13 Notwithstanding valid criticisms and cautions about the

14 Dost factors, we see no error in the jury charge given by

15 the District Court. 

16 Congress chose the word “lascivious,” which has to do

17 generally with sexual arousal. Although the statute is not

18 unconstitutionally vague, see United States v. X-Citement

19 Video, Inc., 513 U.S. 64, 78-79 (1994); United States v.

20 Freeman, 808 F.2d 1290, 1292 (8th Cir. 1987), jurors (and

21 judges) need neutral references and considerations to avoid

22 decisions based on individual values or the revulsion
20

1 potentially raised in a child pornography prosecution. As a

2 definition of the word “lascivious,” the Dost factors are

3 imperfect and vulnerable to criticism. But they are not

4 definitional--nor do they purport to be. Dost recommends

5 that “the trier of fact should look to” the six enumerated

6 factors, but noted that “others . . . may be relevant in the

7 particular case.” Dost, 636 F. Supp. at 832. And here,

8 Judge Kravitz said that the jury “should consider” the

9 factors--not that the factors determine the question. They

10 are not mandatory, formulaic or exclusive. As factors, they

11 mitigate the risk that jurors will react to raw images in a

12 visceral way, rely on impulse or revulsion, or lack any

13 framework for reasoned dialogue in the jury room. In short,

14 the Dost factors impose useful discipline on the jury’s

15 deliberations. They may do so imperfectly, but they have

16 not been much improved upon. 

17 We need not decide whether the Dost factors would

18 govern in every case that touches on child pornography.

19 Among other things, it matters whether production or

20 possession is the charge. But it is no error for a district

21 court to recommend the Dost factors as considerations,

22 making any adaptations or allowances warranted by the facts
21

1 and charges in a particular case. That said, the jury

2 should not be made to rely on the Dost factors with

3 precision to reach a mathematical result, or to weigh or

4 count them, or to rely on them exclusively. 

5

6 II

7 Rivera argues that the District Court erred in denying

8 his motion to sever counts two (enticement of Brian) and

9 three (interstate travel relating to Brian) from counts one

10 (enticement of Garrett), four (production of child

11 pornography depicting David) and five (possession of child

12 pornography). Rivera contends that joinder of these five

13 charges was improper under Federal Rule of Criminal

14 Procedure 8(a), or in the alternative, that the District

15 Court abused its discretion in declining to sever the

16 charges under Rule 14(a). 

17 “Our scrutiny of the district court’s denial of a Rule

18 8 motion to sever requires a twofold inquiry: whether

19 joinder of the counts was proper, and if not, whether

20 misjoinder was prejudicial to the defendant.” United States

21 v. Ruiz, 894 F.2d 501, 505 (2d Cir. 1990). Rule 8(a) allows

22 for the joinder of offenses that “are of the same or similar
22

1 character, or are based on the same act or transaction, or

2 are connected with or constitute parts of a common scheme or

3 plan.” Fed. R. Crim. P. 8(a). “Similar” charges include

4 those that are “somewhat alike,” or those “having a general

5 likeness” to each other. United States v. Werner, 620 F.2d

6 922, 926 (2d Cir. 1980) (quoting the dictionary). Counts

7 that have a “sufficient logical connection” to each other

8 can be tried together, Ruiz, 894 F.2d at 505, as can those

9 “where the same evidence may be used to prove each count,”

10 United States v. Blakney, 941 F.2d 114, 116 (2d Cir. 1991).

11 Federal Rule of Criminal Procedure 14(a) provides that

12 “[i]f the joinder of offenses or defendants in an

13 indictment, an information, or a consolidation for trial

14 appears to prejudice a defendant or the government, the

15 court may order separate trials of counts, sever the

16 defendants’ trials, or provide any other relief that justice

17 requires.” Fed. R. Crim. P. 14(a). We review the denial of

18 a motion under this rule for abuse of discretion, and do not

19 reverse “unless the defendant demonstrates that the failure

20 to sever caused him ‘substantial prejudice’ in the form of a

21 ‘miscarriage of justice.’” United States v. Sampson, 385

22 F.3d 183, 190 (2d Cir. 2004) (quoting Blakney, 941 F.2d at
23

1 116) (other internal quotations omitted).

2 The joinder was proper. Counts one, two, three and

3 four share a “general likeness” in terms of the conduct and

4 events alleged: over a four-month period, Rivera targeted

5 Brian, Garrett, Michael, David in Internet chat rooms;

6 exchanged sexually explicit messages and photographs with

7 them; and enticed them to meet for illicit sexual

8 encounters. During one of those encounters, Rivera took the

9 photographs that form the basis of count four. And some of

10 the same exhibits were used to prove counts one, two and

11 three: the dossiers Rivera maintained of his sexual

12 experiences, which listed Garrett and Brian; and the

13 transcript of an Internet chat in which Rivera said that he

14 had abused five boys, including Garrett and Brian. As to

15 count five (possession of child pornography), we agree with

16 the Eleventh Circuit that “child molestation and child

17 pornography . . . plainly represent acts of ‘similar

18 character’ involving the extraordinary mistreatment of

19 children.” United States v. Hersh, 297 F.3d 1233, 1242

20 (11th Cir. 2002). Accordingly, the five counts were

21 properly joined. 

22 Rivera fails to demonstrate that he suffered prejudice
 In the District Court, Rivera asserted that joinder

5

would prejudice his right to testify on certain counts but

not on others. A-18. He has forfeited that argument on

appeal, relying instead on the broader concern expressed in

United States v. Werner, 620 F.2d 922 (2d Cir. 1980), that

“the jury may use the evidence cumulatively; that is, that

although so much as would be admissible upon any one of the

charges might not have persuaded them of the accused’s

guilt, the sum of it will convince them as to all.” Id. at

929 (quoting United States v. Lotsch, 102 F.2d 35, 36 (2d

Cir. 1939) (Learned Hand, J.).

24

1 from the joinder. Rivera posits a prejudicial “spillover”

2 because the government introduced evidence that Rivera had

3 issued threats to some of his victims and suggested (in

4 summation) that Rivera’s photographs of David were

5 lascivious due to Rivera’s general prurient interest in

6 young males. Rivera contends that, in denying his motion,

7 the District Court overlooked the likelihood that the jury

8 would be “profoundly influenced . . . by the cumulative

9 effect of evidence relating to distinct offenses in its

10 assessment of whether the government had met its burden of

11 proof on any one charge.” Blue 18. 

5

12 This generalized claim of prejudice is insufficient. 

13 The District Court instructed the jury to “consider each

14 count separately and return a separate verdict of guilty or

15 not guilty for each” of them, A-51, and that its verdict

16 “must be unanimous as to each charge,” A-84. More
25

1 particularly, Federal Rule of Evidence 414 provides that

2 “[i]n a criminal case in which the defendant is accused of

3 an offense of child molestation, evidence of the defendant’s

4 commission of another offense or offenses of child

5 molestation is admissible, and may be considered for its

6 bearing on any matter to which it is relevant.” Fed. R.

7 Evid. 414(a). The same rule defines “child” as a person

8 below the age of fourteen. Id. 414(d). As a consequence,

9 proof as to counts two and three (relating to Brian, age

10 thirteen) would likely have been admissible as to the three

11 other counts. The Federal Rules of Evidence thus

12 specifically sanction the kind of showing that Rivera says

13 is impermissible and conducive to spillover. The District

14 Court did not violate Rule 8(a) and did not abuse its

15 discretion under Rule 14(a).

16

17 III

18 Rivera challenges his sentence as cruel and unusual, in

19 violation of the Eighth Amendment. Since Rivera failed to

20 raise this claim in the District Court, we deem it

21 forfeited. United States v. Feliciano, 223 F.3d 102, 125

22 (2d Cir. 2000) (“There is no reason why [the defendant’s]
26

1 constitutional challenges could not have been raised below,

2 where he had ample opportunity to raise them and where the

3 district court would have had the opportunity to address

4 them.”). 

5 In any event, Rivera’s forfeited constitutional claim

6 is without merit. “The Eighth Amendment ‘forbids only

7 extreme sentences that are “grossly disproportionate” to the

8 crime.’” United States v. Yousef, 327 F.3d 56, 163 (2d Cir.

9 2003) (quoting Harmelin v. Michigan, 501 U.S. 957, 1001

10 (1991) (Kennedy, J., concurring in part and concurring in

11 the judgment)). “[O]utside the context of capital

12 punishment, successful challenges to the proportionality of

13 particular sentences have been exceedingly rare.” Ewing v.

14 California, 538 U.S. 11, 21 (2003) (internal quotations

15 omitted) (rejecting Eighth Amendment challenge to 25-year

16 sentence for theft of golf clubs worth $1,200). After

17 Rivera served a state sentence for molesting his niece and

18 nephew throughout their childhood, he sexually exploited

19 four adolescent boys, one of them only thirteen years old. 

20 In light of the gravity of Rivera’s offenses and his

21 recidivist nature, we cannot draw “an inference of gross

22 disproportionality” from the mandatory life sentence at
27

1 issue here. Harmelin, 501 U.S. at 1005 (Kennedy, J.,

2 concurring).

3 Lastly, Rivera’s Sixth Amendment challenge to his

4 sentence is defeated by Almendarez-Torres v. United States,

5 523 U.S. 224 (1998). 

6

7 CONCLUSION

8 For the foregoing reasons, we affirm.