[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-14160

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

MATTHEW LEE OSTRANDER, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Northern District of Florida

D.C. Docket No. 1:20-cr-00032-AW-GRJ-1

____________________

Before ROSENBAUM, NEWSOM, and MARCUS, Circuit Judges.

USCA11 Case: 22-14160 Document: 47-1 Date Filed: 09/05/2024 Page: 1 of 37
2 Opinion of the Court 22-14160

MARCUS, Circuit Judge:

In August 2020, Matthew Ostrander -- a homeless fugitive --

was arrested in Gainesville, Florida for failing to register as a sex 

offender following a 2007 child pornography conviction. At the 

time of his arrest, Ostrander had in his possession four electronic 

devices (a laptop, a cell phone, and two USB thumb drives), three 

of which were found to contain a total of 480 computer-generated 

images (“CGI”) of children involved in sexual activity. The images 

did not depict real children, nor were any real children involved in 

the making of the images. After a two-day trial in federal court, a

jury found Ostrander guilty of knowing possession of an obscene 

visual depiction -- including a drawing or cartoon -- of a minor engaging in sexually explicit conduct in violation of 18 U.S.C. 

§ 1466A(b)(1), (d)(4).

On appeal, Ostrander broadly raises three categories of challenges to his conviction: first, Ostrander challenges the constitutionality of the statute he was charged with violating on overbreadth and vagueness grounds; second, he says the evidence was 

insufficient to sustain his conviction; finally, he alleges prosecutorial misconduct.

We are unpersuaded by each of these arguments. First, the 

statute is not facially unconstitutional because it is neither overbroad nor vague. Ostrander has failed to establish that any potentially unconstitutional reach of the statute is substantial when compared to the statute’s plainly legitimate sweep -- those who possess 

or transport obscene images of children outside the home. Nor 

USCA11 Case: 22-14160 Document: 47-1 Date Filed: 09/05/2024 Page: 2 of 37
22-14160 Opinion of the Court 3

does the statute fail to comply with the notice requirements of the 

Due Process Clause. Second, Ostrander’s sufficiency-of-the-evidence claim fails. On the record adduced at trial, a reasonable jury 

could find, as it did, Ostrander guilty beyond a reasonable doubt. 

Finally, Ostrander has neither established that any prosecutorial 

misconduct occurred, nor that any claimed misconduct would 

have undermined the jury’s verdict.

We affirm.

I.

On August 27, 2020, deputy United States Marshal Adam 

Myers received a tip that a fugitive, Matthew Ostrander, was living 

in Gainesville, Florida. Specifically, Myers was told that Ostrander 

was accessing Facebook from an IP address in the Gainesville area. 

Myers determined that the IP address belonged to the Wi-Fi of a

Publix supermarket in Gainesville and went to the Publix on September 2, 2020, to obtain video surveillance of the premises during 

the times that Ostrander’s Facebook was being accessed. While 

Myers was at the Publix reviewing the video surveillance, he was 

notified that Ostrander was again accessing Facebook from the

Publix Wi-Fi at that very moment. Myers switched to a live video 

feed, where he observed Ostrander using a laptop computer while 

eating at a coffee shop housed inside the supermarket. After

backup arrived, Myers approached Ostrander and placed him under arrest for failure to register as a sex offender. Ostrander later

told the officers that he was living in a campsite in an outdoor stairwell less than a mile from the Publix.

USCA11 Case: 22-14160 Document: 47-1 Date Filed: 09/05/2024 Page: 3 of 37
4 Opinion of the Court 22-14160

From the scene of Ostrander’s arrest, detectives recovered a 

cell phone, a laptop computer, and two USB thumb drives. Digital 

forensic investigation of these devices discovered some 480 CGI

depicting children involved in “different sex acts and different 

forms of abuse.”

On December 21, 2021, a grand jury empaneled in the 

Northern District of Florida returned a Superseding Indictment 

charging Ostrander with the knowing possession of “a visual depiction of any kind, including a drawing and cartoon, that depicts a 

minor engaging in sexually explicit conduct, and is obscene,” and 

that has a nexus to interstate commerce, in violation of 18 U.S.C. 

§§ 1466A(b)(1), (d)(4). The Superseding Indictment also charged 

Ostrander with failure to register as a sex offender in violation of

the Sex Offender Registration and Notification Act, 18 U.S.C. 

§ 2250(a), based on Ostrander’s 2007 conviction for Possession of 

Child Pornography in the Eastern District of Missouri, in violation 

of 18 U.S.C. § 2252A(a)(5)(B). Ostrander pleaded guilty to the failure-to-register charge on May 10, 2022. Neither the failure-to-register charge nor Ostrander’s guilty plea are at issue in this appeal.

On May 5, 2022, Ostrander moved the district court to dismiss the possession-of-a-visual-depiction charge, arguing that the 

statute was unconstitutional and that the district court lacked jurisdiction to hear the case. The court denied the motion, both because it was untimely and without merit.

A two-day jury trial commenced on May 11, 2022. Because 

Ostrander challenges the sufficiency of the evidence for his 

USCA11 Case: 22-14160 Document: 47-1 Date Filed: 09/05/2024 Page: 4 of 37
22-14160 Opinion of the Court 5

conviction and alleges prosecutorial misconduct, we detail the 

events at his trial at some length.

The Government called four witnesses. First, the Government presented Adam Myers, the deputy United States Marshal 

who had located and arrested Ostrander. Myers told the jury how 

he had located Ostrander at the Publix in Gainesville, arrested him, 

and seized the phone, laptop, and two thumb drives. Myers also 

identified Ostrander in court. The Government also called Stephen 

Holmes, a United States Probation Officer based in St. Louis, Missouri. Holmes testified that he supervised Ostrander in 2014 pursuant to the 2007 conviction. Holmes identified Ostrander in 

court.

Third, the Government offered the testimony of Van Wilson, a computer forensic analyst for Homeland Security Investigations. Wilson had examined Ostrander’s cell phone, laptop, and 

the two USB thumb drives. On the cell phone, Wilson said that he 

found an application (or “app”) called Telegram, which is a messaging app that can be end-to-end encrypted. Wilson explained 

that when an operating system loads an image in an app, it will 

download a copy of that image into a “cache folder” on the device. 

This way, if the image is viewed again in the future, the operating 

system can show the user that image more quickly instead of 

redownloading it.

In the app’s cache file, Wilson found two CGI that depicted 

“two little boys.” Wilson explained that he manually searched the 

Telegram app and discovered a group chat where users were 

USCA11 Case: 22-14160 Document: 47-1 Date Filed: 09/05/2024 Page: 5 of 37
6 Opinion of the Court 22-14160

sharing images back and forth, although he could not tell what the 

images depicted because they were blurred without an internet 

connection.1 The name of that group chat was “School of Shota 

♥.”

On the first USB thumb drive (the “Innostor USB”), Wilson 

testified that he found 480 CGI.2 The images depicted children, and

were sorted into six folders, each of which was created by the user 

between July 30, 2020 and August 30, 2020. The six folders were 

named: “Gocams,” “Cuteness,” “Tommy,” “Webcam Boys,” 

“Neighbor,” and “Silver Fox.” Digital forensics indicated that the 

Innostor USB had last been modified by Ostrander’s laptop on August 30, 2020. Wilson also testified that he found web addresses 

(“URLs”) on the cell phone that directly linked to online copies of 

some of the same images found on the Innostor USB.

Wilson explained that he was able to identify search terms 

used in the laptop’s internet browser, which included “Gocams 

3D,” “Shota,” “Webcam Boys,” “Silver Fox,” “Tommy,” and “My 

Neighborhood.” Wilson said that he found five image files on Ostrander’s laptop that had been downloaded from the internet.

Finally, the Government offered Anthony Lada, a special 

agent with Homeland Security Investigations. Lada testified that 

he reviewed over 400 CGI located on the electronic devices found 

1 Wilson testified that the detectives kept the phone from connecting to the 

internet so it could not be remotely wiped.

2 Wilson said that no CGI were found on the second thumb drive.

USCA11 Case: 22-14160 Document: 47-1 Date Filed: 09/05/2024 Page: 6 of 37
22-14160 Opinion of the Court 7

on Ostrander’s person, many of which depicted juvenile children 

in “different sex acts and different forms of abuse.” Lada also testified that he used an undercover computer to visit the URLs found 

on Ostrander’s cell phone and discovered that they were linked to 

websites where the user could download CGI of children involved 

in sexual acts or sexual abuse. Lada said that some of the images 

on the websites were the same as the ones found on Ostrander’s 

electronic devices.

Lada told the jury that he selected ten of the CGI found on 

Ostrander’s devices to become exhibits at trial. The images Lada 

selected generally depicted male children being subjected to anal 

rape and sadistic sexual abuse. These ten images became Government exhibits 5A–5J. Each of these images was found on the Innostor USB unless otherwise noted:

1. Exhibit 5A was found in the “Cuteness” folder. The 

URL was also located.

2. Exhibit 5B was found in the “Gocams” folder. This 

image was also found on the laptop.

3. Exhibit 5C was found in the “Neighbor” folder.

4. Exhibit 5D was found in the “Neighbor” folder.

5. Exhibit 5E was found in the “Neighbor” folder. The 

URL was also located.

6. Exhibit 5F was found in the “Neighbor” folder. 

7. Exhibit 5G was found in the “Silver Fox” folder. The 

URL was also located.

8. Exhibit 5H was found in the “Silver Fox” folder. 

9. Exhibit 5I was found in the “Silver Fox” folder. The 

URL was also located. 

USCA11 Case: 22-14160 Document: 47-1 Date Filed: 09/05/2024 Page: 7 of 37
8 Opinion of the Court 22-14160

10. Exhibit 5J was found on the phone and on the laptop. 

The Government published the ten images.

In an effort to establish that the ten images were really part 

of larger story sequences or works of art, on cross-examination, defense counsel showed Lada a sequence of images from the “Cuteness” folder and asked him whether the images related a “series of 

events that appear to take place in a confined time and convey a 

story[.]” Lada replied: “I am not attempting to provide any of my 

own context to any of the images I see.” Defense counsel then 

showed Lada a sequence of images from the “Gocams” folder and 

again asked if they related a story. Lada replied: “I can’t tell that. I 

don’t see a timestamp or anything on the images. Maybe you can 

say that, subjectively. I can’t -- I’m not going to provide my own 

context to the images.”

Defense counsel also showed Lada a sequence of images 

from the “Neighbor” folder. Lada said that the first image in the 

folder had words that said, “my neighborhood,” but he did not 

“know if it’s a title page.” Lada confirmed that every file in the 

folder had the words “my neighborhood” in the file name. Pressing 

the point further, Counsel asked Lada whether he would “agree 

that some of the images were contained within a storyline depicting a sexual relationship between an adolescent and a grown male 

who was involved with the child’s mother[.]” Lada responded: “I

would say that there are images contained in this folder which 

show, or depict, sexual abuse of a child. I don’t know anything 

about the story element that you are asking me about.” Defense 

USCA11 Case: 22-14160 Document: 47-1 Date Filed: 09/05/2024 Page: 8 of 37
22-14160 Opinion of the Court 9

counsel impeached Lada with a copy of Lada’s report, which stated 

that “[s]ome of the images were contained within a story line depicting a sexual relationship between an adolescent and a grown 

male who was involved with the child’s mother.”

Lada also confirmed on cross-examination that the first image in the folder “Tommy” had a title, a part number, and then a 

“by” line. Lada conceded that “[y]ou could call [those] elements 

that would be in a story, I guess,” and acknowledged that the subsequent images had dialogue boxes and cartoon bubbles and appeared to convey “some sort of progression of events.” However, 

no images from the “Tommy” folder were shown to the jury. Finally, defense counsel asked if the images in the folder “Webcam 

Boys” related to “a three-part story.” Lada replied, “I have no idea 

whether it’s a three-part story, sir. I’m sorry.”

On redirect examination, counsel for the Government revisited the same theme, asking Lada whether some of the images the 

jury had seen appeared to be in a series. Lada acknowledged that 

“[t]here appears to be some relation between the images,” but he 

also said that “[t]here appear to be many other images that are just 

stand-alone.”

Finally, the Government told the jury that the parties had 

stipulated that the electronic devices (the laptop, the cell phone, 

and the Innostor USB) were all manufactured outside of the state 

of Florida and are materials that have been shipped and transported 

in interstate and foreign commerce.

USCA11 Case: 22-14160 Document: 47-1 Date Filed: 09/05/2024 Page: 9 of 37
10 Opinion of the Court 22-14160

After the Government rested, Ostrander moved for a judgment of acquittal pursuant to Rule 29. Fed. R. Crim. P. 29. As part 

of this motion, Ostrander offered to call Richard Connor, Jr., a 

computer and digital forensics expert, to explain the larger context 

that the full 480 images provided for the ten images shown to the 

jury. Ostrander also raised the issue of prosecutorial misconduct. 

In essence, Ostrander argued that the Government failed to establish that the works were obscene when “taken as a whole,” because

the jury was not shown all 480 images, but rather saw only ten selected images. The court agreed to allow Ostrander to submit all

480 images as an exhibit for the jury, but denied the Rule 29 motion

because, construing the evidence in the light most favorable to the 

Government, the Government had presented sufficient evidence 

for a reasonable jury to convict.

The defense then called Connor. Connor said that he had 

reviewed all 480 images. The court sustained an objection to Connor offering an opinion on whether the images were actually related or revealed a series of events. After the court ruled that Connor would not be allowed to offer the opinion that some of the

images were in some way related to each other, Ostrander withdrew offering the 480 images. They were never shown to the jury.

At the close of the case, the defense renewed its Rule 29 motion. The court again denied it. The parties did not object to the 

jury instructions and, after less than thirty minutes of deliberation, 

the jury found Ostrander guilty.

USCA11 Case: 22-14160 Document: 47-1 Date Filed: 09/05/2024 Page: 10 of 37
22-14160 Opinion of the Court 11

The district court sentenced Ostrander to 168 months’ imprisonment, followed by a term of three years of supervised release, and a special assessment in the amount of $200. The district 

court also sentenced Ostrander to 120 months’ imprisonment for 

failure to register as a sex offender, to be served concurrently, followed by a life term of supervised release.

This timely appeal followed.

II.

We start with Ostrander’s challenge to the constitutionality 

of the statute. We review a challenge to the constitutionality of a 

statute de novo. United States v. Dean, 635 F.3d 1200, 1203 (11th Cir. 

2011). The challenger bears the burden. Id.

Ostrander argues that § 1466A(b)(1) and (d)(4) is facially unconstitutional. First, he says that the statute is unconstitutionally 

overbroad because it violates the Supreme Court’s command that

the “mere private possession of obscene matter cannot constitutionally be made a crime.” Stanley v. Georgia, 394 U.S. 557, 559 

(1969). He also says that the statute is overbroad because it proscribes private drawings depicting a person’s thoughts. Second, he 

contends that the statute is void for vagueness because the Supreme Court’s test for obscenity, articulated in Miller v. California, 

413 U.S. 15 (1973), does not provide adequate notice to a defendant 

who never intends to show his private works to anyone else. We 

address each argument in turn.

As a preliminary matter, however, the Government argues

that the district court properly denied Ostrander’s motion to 

USCA11 Case: 22-14160 Document: 47-1 Date Filed: 09/05/2024 Page: 11 of 37
12 Opinion of the Court 22-14160

dismiss Count One of the Amended Indictment as untimely, inasmuch as it was filed just a week before trial and three months after 

the cut-off date for filing pre-trial motions. We are not persuaded. 

Had Ostrander filed a motion to dismiss under Federal Rule of 

Criminal Procedure 12(b)(3) -- which covers pretrial motions that 

must be made before trial -- he would have been obliged to file that 

motion before the pre-trial deadlines set by the district court. See

United States v. Milian-Rodriguez, 828 F.2d 679, 683 (11th Cir. 1987).

But Ostrander’s motion to dismiss challenged the Superseding Indictment on the ground that the statute he was charged with violating is unconstitutional.3

In our Court, a constitutional challenge to the validity of the

charging statute is jurisdictional in nature and, therefore, may be 

filed at any time while the case is pending. See Fed. R. Crim. P. 

12(b)(2) (“A motion that the court lacks jurisdiction may be made 

at any time while the case is pending.”); United States v. Saac, 632 

F.3d 1203, 1208 (11th Cir. 2011) (“The constitutionality of the [Act], 

the statute under which defendants were convicted, is a jurisdictional issue . . . .”); United States v. Tomeny, 144 F.3d 749, 751 (11th 

Cir. 1998) (holding that a claim that the statute under which the 

defendant was convicted was preempted by another statute “effectively claim[ed] that the indictment failed to charge a legitimate offense,” which was a jurisdictional claim); United States v. Scott, 61 

3 Ostrander’s motion to dismiss did mischaracterize the motion as a Rule 

12(b)(3) motion, rather than a Rule 12(b)(2) motion, a mistake Ostrander attributes to copy-pasting.

USCA11 Case: 22-14160 Document: 47-1 Date Filed: 09/05/2024 Page: 12 of 37
22-14160 Opinion of the Court 13

F.4th 855, 859 (11th Cir. 2023). The district court erred in denying 

the motion to dismiss on the ground that it was untimely. However, it was right to deny the motion because it failed on the merits.

A.

Ostrander’s primary claim is that § 1466A(b)(1), (d)(4) of Title 18, which criminalizes the knowing possession of any visual depiction of a minor engaging in sexual activity that is obscene, is 

overbroad because it wrongly outlaws the mere private possession 

of obscene materials.4 Ostrander is correct that the text of the statute proscribes some conduct that may be constitutionally protected. However, there is no question that the statute is not 

4 Specifically, § 1466A(b)(1) reads:

Any person who, in a circumstance described in subsection (d), 

knowingly possesses a visual depiction of any kind, including 

a drawing, cartoon, sculpture, or painting, that-- (1)(A) depicts 

a minor engaging in sexually explicit conduct; and (B) is obscene . . . or attempts or conspires to do so, shall be subject to 

the penalties provided in section 2252A(b)(2), including the 

penalties provided for cases involving a prior conviction.

18 U.S.C. § 1466A(b)(1). Subsection (d)(4) of the statute explains that:

The circumstance referred to in subsections (a) and (b) is that

. . . any visual depiction involved in the offense has been 

mailed, or has been shipped or transported in interstate or foreign commerce by any means, including by computer, or was 

produced using materials that have been mailed, or that have 

been shipped or transported in interstate or foreign commerce 

by any means, including by computer.

Id. § 1466A(d)(4).

USCA11 Case: 22-14160 Document: 47-1 Date Filed: 09/05/2024 Page: 13 of 37
14 Opinion of the Court 22-14160

unconstitutional in all its applications, and Ostrander has not made 

the requisite showing that substantial overbreadth exists in fact, 

when compared to the statute’s plainly legitimate sweep.

1.

To address Ostrander’s argument, it is necessary to briefly 

review the development of Supreme Court precedent about the

private possession of obscene material.

To begin, by now it is well-settled that obscene material is 

not protected by the First Amendment. United States v. Bagnell, 679 

F.2d 826, 835 (11th Cir. 1982). In Miller, the Supreme Court established the governing test for what material counts as obscene and 

therefore unprotected speech. 413 U.S. at 24. Under Miller, material is obscene if: (a) “the average person, applying contemporary 

community standards would find that the work, taken as a whole, 

appeals to the prurient interest”; (b) the “work depicts or describes, 

in a patently offensive way, sexual conduct” as defined by the applicable law; and (c) “the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Id. (internal quotation 

marks omitted). If the material falls within the bounds of the Miller

test, the government may constitutionally regulate or suppress it. 

See Bagnell, 679 F.2d at 835.

Ostrander’s overbreadth argument is primarily based on

Stanley v. Georgia, 394 U.S. 557 (1969), where the Court held that the 

“mere private possession of obscene matter cannot constitutionally be made a crime.” Id. at 559. In Stanley, the Court acknowledged that “obscenity is not protected by the First Amendment,” 

USCA11 Case: 22-14160 Document: 47-1 Date Filed: 09/05/2024 Page: 14 of 37
22-14160 Opinion of the Court 15

but distinguished its holding from prior cases on the ground that 

none of the Court’s prior holdings “were made in the context of a 

statute punishing mere private possession of obscene material; the 

cases cited deal for the most part with use of the mails to distribute 

objectionable material or with some form of public distribution or 

dissemination.” Id. at 560–61. Although the First Amendment recognizes “a valid governmental interest in dealing with the problem 

of obscenity,” the Court explained, “the assertion of that interest 

cannot, in every context, be insulated from all constitutional protections.” Id. at 563. “If the First Amendment means anything,” 

the Court explained, “it means that a State has no business telling 

a man, sitting alone in his own house, what books he may read or 

what films he may watch.” Id. at 565. Therefore, “the First and 

Fourteenth Amendments prohibit making mere private possession 

of obscene material a crime.” Id. at 568.

The right articulated by Stanley is limited, however. For one 

thing, the Supreme Court has clarified that Stanley does not stand 

for a right to import, transport, or distribute obscene material, even 

if that material is intended only for private use in one’s home. See

United States v. 12 200-Foot Reels of Super 8mm. Film, 413 U.S. 123, 128

(1973); United States v. Orito, 413 U.S. 139, 141–42 (1973). For another, Stanley does not say that the First Amendment includes a 

right to possess child pornography, even in the privacy of one’s 

home. In Osborne v. Ohio, 495 U.S. 103 (1990), the Court explained 

that the principle enunciated in Stanley could not overcome the

State’s overwhelming interest in protecting children from being 

used as subjects in pornographic materials, nor its interest in 

USCA11 Case: 22-14160 Document: 47-1 Date Filed: 09/05/2024 Page: 15 of 37
16 Opinion of the Court 22-14160

encouraging those who possess the recordings to destroy them so 

that the “pornography’s continued existence” could not “cause[] 

the child victims continuing harm by haunting the children in years 

to come.” Id. at 109–11. Thus, the government “may constitutionally proscribe the possession and viewing of child pornography,”

even in the privacy of one’s own home. Id. at 111.

In Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), however, the Supreme Court further clarified that the concerns articulated about the terrible harms associated with child pornography 

in Osborne did not apply to “virtual” child pornography -- that is, 

“explicit images that appear to depict minors but were produced 

without using any real children,” including “by using computer imaging” to “create realistic images of children who do not exist.” Id.

at 239–40, 250. The Court explained that Osborne “anchored its 

holding in the concern for the participants, those whom it called 

the ‘victims of child pornography.’ It did not suggest that, absent 

this concern, other governmental interests would suffice.” Id. at 

250 (quoting Osborne, 495 U.S. at 110) (internal citations omitted). 

The Court held that a federal statute that criminalized the possession of virtual child pornography, regardless of whether it is obscene under Miller, violated the First Amendment. Id. at 256.

In sum, this is the law as it stands today: The First Amendment does not protect the distribution or transportation of obscene material, but the mere possession of obscene material in a 

private home cannot be criminalized. Stanley, 394 U.S. at 568; Orito, 

413 U.S. at 141–42. Stanley’s holding, however, does not extend to 

USCA11 Case: 22-14160 Document: 47-1 Date Filed: 09/05/2024 Page: 16 of 37
22-14160 Opinion of the Court 17

the possession of obscene material involving real children, because 

of the state’s powerful interest in protecting children victimized by 

obscenity. Osborne, 495 U.S. at 111. But the reasoning of Osborne

does not apply to virtual child pornography because there are no 

children victimized by these images. Free Speech Coal., 535 U.S. at 

250. The Court repeated that, in the absence of actual child victims, “the government ‘cannot constitutionally premise legislation 

on the desirability of controlling a person’s private thoughts.’” Id.

at 253 (quoting Stanley, 394 U.S. at 566). Therefore, the First 

Amendment protects the private possession in one’s own home of 

obscene material depicting virtual minors, so long as no real children are victimized. Id. at 256.

2.

We turn to the statute at hand. Section 1466A(b) criminalizes the knowing possession of “a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting,” that depicts a 

minor engaging in sexually explicit conduct and is obscene. 18 

U.S.C. § 1466A(b). Ostrander argues that this statute is facially unconstitutional because it criminalizes the mere possession of obscene materials in a private home, in violation of Stanley.

There are two ways for a challenger to prove that a statute 

is facially unconstitutional. The first (and most common) method 

is that the challenger must “establish that no set of circumstances 

exists under which the law would be valid,” or else show that the 

law lacks any “plainly legitimate sweep.” Ams. for Prosperity Found. 

v. Bonta, 594 U.S. 595, 615 (2021) (alterations adopted) (citations 

USCA11 Case: 22-14160 Document: 47-1 Date Filed: 09/05/2024 Page: 17 of 37
18 Opinion of the Court 22-14160

omitted). Ostrander cannot make this showing, nor does he attempt to do so. The statute covers plenty of valid circumstances, 

such transportation or possession outside the home of obscene material depicting children.

In the First Amendment context, however, the Court has

recognized “a second type of facial challenge, whereby a law may 

be invalidated as overbroad if a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly 

legitimate sweep.” United States v. Stevens, 559 U.S. 460, 473 (2010) 

(internal quotation marks and citation omitted). This is the type 

of challenge Ostrander raises.

“The Supreme Court describes facial invalidation for overbreadth as ‘strong medicine’ that ‘has been employed by the Court 

sparingly and only as a last resort.’” Dean, 635 F.3d at 1204 (quoting 

Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973)). Thus, any overbreadth “must not only be real, but substantial as well, judged in 

relation to the statute’s plainly legitimate sweep.” Members of City 

Council v. Taxpayers for Vincent, 466 U.S. 789, 799–800 (1984) (quoting Broadrick, 413 U.S. at 615). Ostrander, in turn, has the burden 

to establish that the statute’s purported overbreadth is both real 

and substantial. See Virginia v. Hicks, 539 U.S. 113, 122 (2003).

Ostrander has not made either showing. In order to establish that overbreadth is real, he “bears the burden of demonstrating, ‘from the text of [the law] and from actual fact,’ that substantial 

overbreadth exists.” Id. (emphasis added) (quoting N.Y. State Club 

Ass’n. v. City of N.Y, 487 U.S. 1, 14 (1988)). In other words, 

USCA11 Case: 22-14160 Document: 47-1 Date Filed: 09/05/2024 Page: 18 of 37
22-14160 Opinion of the Court 19

Ostrander must show a “realistic danger” that the statute will, in a 

significant way, unconstitutionally burden parties not before the 

court. Taxpayers for Vincent, 466 U.S. at 801. Although Ostrander 

speculates about the potentially unconstitutional reach of this statute, he has not shown any realistic danger in fact. For one thing, 

Ostrander suggests that the statute could cover a person’s private 

“doodle[s], draw[ing], caricature,” or sculpture. Ostrander also offers that the statute might conceivably cover a hand-drawn or private digital comic strip. Although Ostrander is right that these situations could conceivably be covered by the text of the law, he has 

not demonstrated any realistic indication that the statute would actually be used to prosecute someone simply for making an obscene 

doodle in the confines of his own bedroom, in his home. In other 

words, even if Ostrander has established overbreadth “from the 

text of [the law],” he has failed to do so in “actual fact,” and he has 

not come close to meeting his burden of proving a realistic danger 

that the statute will unconstitutionally burden parties not before 

the court. Hicks, 539 U.S. at 122 (citation omitted); see also Taxpayers for Vincent, 466 U.S. at 801.

The other examples that Ostrander has offered fare no better. Ostrander claims that the statute could burden an incomplete 

work-in-progress after it becomes obscene, but before it has attained any social value (and is therefore no longer obscene). Thus,

Ostrander speculates, an artist could be prosecuted for a work-inprogress where the representation is “intended to look like young 

adults in a story of great social value,” but which is temporarily 

obscene and the representations look like minors. But the realistic 

USCA11 Case: 22-14160 Document: 47-1 Date Filed: 09/05/2024 Page: 19 of 37
20 Opinion of the Court 22-14160

danger of this happening seems to us to be remote. The authorities 

in Ostrander’s hypothetical case would need to obtain a warrant to 

seize a piece of art during the brief window between its conceptualization and the point when it achieves any artistic merit. “[S]peculation about possible [unconstitutionality] in hypothetical situations not before the Court will not support a facial attack on a statute when it is surely valid ‘in the vast majority of its intended applications.’” Hill v. Colorado, 530 U.S. 703, 733 (2000) (quoting United 

States v. Raines, 362 U.S. 17, 23 (1960)). Ostrander has pointed us to 

no case with a fact pattern even remotely like this and we are aware 

of none.

Moreover, even if Ostrander had made a showing of real 

danger, he would also need to establish that this danger was “substantial, not only in an absolute sense, but also relative to the statute’s plainly legitimate sweep.” United States v. Williams, 553 U.S.

285, 292 (2008). The Supreme Court has “vigorously enforced” this 

requirement too. Id. But again, although Ostrander has offered a 

handful of hypotheticals, the “mere fact that one can conceive of 

some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge.” Id. at 303 (quoting 

Taxpayers for Vincent, 466 U.S. at 800).

The legitimate sweep of this statute is not targeting obscene 

doodles and legitimate works of art in progress. Instead, the legitimate sweep targets defendants like Ostrander: those who do not 

merely possess the covered obscenity in the privacy of their homes, 

but who are downloading or exchanging hundreds of such images 

USCA11 Case: 22-14160 Document: 47-1 Date Filed: 09/05/2024 Page: 20 of 37
22-14160 Opinion of the Court 21

on the internet. See, e.g., United States v. Mason, No. 3:17-CR-26, 

2023 WL 6304385, at *1 (W.D. Pa. July 5, 2023) (defendant downloaded “hundreds” of images); United States v. Taylor, No. ACM 

38700, 2016 WL 787245, at *1–2 (A.F. Ct. Crim. App. Feb. 25, 2016), 

aff’d, 76 M.J. 126 (C.A.A.F. Feb. 13, 2017) (defendant living in military dormitory downloaded numerous images from “several websites”); Bowersox, 72 M.J. at 72–73 (defendant living in shared military barracks downloaded over 300 anime-style images of minors 

from a website); United States v. Jenkins, 712 F.3d 209, 211 (5th Cir. 

2013) (defendant downloaded over 100 virtual and actual child pornography images and videos); United States v. Sotelo, No. ARMY 

20110267, 2012 WL 6021437, at *1 (A. Ct. Crim. App. Nov. 28, 2012) 

(defendant downloaded nearly 300 images and videos of actual and 

virtual child pornography). But see United States v. Farrar, 876 F.3d 

702, 705 (5th Cir. 2017) (defendant inmate possessed “seven handdrawn images depicting the [sexual] exploitation of minor females”); United States v. Handley, 564 F. Supp. 2d 996, 999 (S.D. Iowa 

2008) (defendant possessed imported “anime comic books” in his

home).

To this point, the fact that Ostrander “has not satisfied his 

burden of proof and failed to adduce plausible examples is unsurprising.” Dean, 635 F.3d at 1206. The right articulated in Stanley is 

emphatically limited. United States v. Miller, 776 F.2d 978, 981 (11th 

Cir. 1985). Since there is no right to distribute or transport obscene 

material, it is difficult to imagine a large number of cases in which 

a defendant violates § 1466A(b)(1) but did no more than merely

possess the obscene material, much less establish that these 

USCA11 Case: 22-14160 Document: 47-1 Date Filed: 09/05/2024 Page: 21 of 37
22 Opinion of the Court 22-14160

circumstances exist in fact and are substantial in number both absolutely and relative to the statute’s legitimate sweep. In other 

words, “[t]he window” of protected behavior that overlaps with the 

conduct prohibited by the statute is “narrow.” Dean, 635 F.3d at 

1207. We are confident that “these arguably impermissible applications of the statute amount to [no] more than a tiny fraction of 

the materials within the statute’s reach.” New York v. Ferber, 458 U.S. 

747, 773 (1982). And in these circumstances, “whatever overbreadth may exist should be cured through case-by-case analysis of 

the fact situations to which [the statute’s] sanctions, assertedly, may 

not be applied.” Broadrick, 413 U.S. at 615–16.

Moving beyond the ambit of Stanley, Ostrander claims that 

the statute is also overbroad because it prohibits the creation of private obscene drawings where the artist has no intention ofshowing

the drawings to anyone. But that argument necessarily fails. 

Again, overbreadth only applies if the statute “reaches a substantial 

amount of constitutionally protected conduct.” Vill. of Hoffman 

Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 494 (1982). But --

with the sole exception of Stanley -- obscene material is not protected by the First Amendment, see Miller, 413 U.S. at 23, and 

§ 1466A(b) only covers images that are “obscene” and, by definition, are not constitutionally protected, 18 U.S.C. § 1466A(b)(1)(B); 

see Hamling v. United States, 418 U.S. 87, 118–19 (1974) (noting that 

the word “obscene” is a legal term of art incorporating the associated jurisprudence).

USCA11 Case: 22-14160 Document: 47-1 Date Filed: 09/05/2024 Page: 22 of 37
22-14160 Opinion of the Court 23

Ostrander’s rebuttal is unconvincing. Ostrander cites generally to Stanley and Griswold v. Connecticut, 381 U.S. 479 (1965), in

support of the undisputed proposition that the Constitution protects “freedom of thought.” But there is no dispute that Ostrander 

is free to think what he likes. What Ostrander has failed to cite is 

any case that bridges the leap from constitutionally protected obscene thoughts to protection for the possession outside the home 

of obscene materials involving children.

Ostrander also cites to Free Speech Coalition for the proposition that the statute improperly “proscribes the visual depiction of 

an idea.” But in Free Speech Coalition, the Court was concerned that 

the statute at issue “prohibit[ed] speech despite its serious literary, 

artistic, political, or scientific value.” Free Speech Coal., 535 U.S. at 

246. The issue in Free Speech Coalition was that the statute prohibited visual depictions that were not, by definition, obscene. See id.

at 246–47. Here, the statute only covers obscenity, so there is no 

such concern. See United States v. Buie, 946 F.3d 443, 445–46 (8th 

Cir. 2019) (rejecting an overbreadth challenge to 18 U.S.C. 

§ 1466A(b)(1) for the same reason).

“[T]he overbreadth challenge must fail.” Vill. of Hoffman, 

455 U.S. at 494.

B.

Ostrander next argues that the statute is facially unconstitutional because the Miller test itself is unconstitutionally vague when 

applied to a person’s private works or library. “[T]he void-forvagueness doctrine requires that a penal statute define the criminal 

USCA11 Case: 22-14160 Document: 47-1 Date Filed: 09/05/2024 Page: 23 of 37
24 Opinion of the Court 22-14160

offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not 

encourage arbitrary and discriminatory enforcement.” Kolender v. 

Lawson, 461 U.S. 352, 357 (1983). 

As we have already observed, Miller held that a trier of fact 

determining whether a work is obscene must consider: 

(a) whether the average person, applying contemporary community standards would find that the work, 

taken as a whole, appeals to the prurient interest; (b) 

whether the work depicts or describes, in a patently 

offensive way, sexual conduct specifically defined by 

the applicable state law; and (c) whether the work, 

taken as a whole, lacks serious literary, artistic, political, or scientific value.

Miller, 413 U.S. at 24 (internal quotation marks and citations omitted). Ostrander says that this standard is unworkably vague when 

the artist never intends to show the work to anyone, because the 

only intended audience is the person who is applying the standard.

But Miller is clear in positing that the essential question is not 

who the intended audience is, but what the “average person, applying contemporary community standards,” would think. Id.; see 

also Hamling, 418 U.S. at 104–05. The fact that an artist does not

intend to show the work in his community does not alter the Miller

test in any way. Cf. United States v. Little, 365 F. App’x 159, 163–64 

(11th Cir. 2010) (holding in an unpublished case that the jury must 

judge obscenity based on how the average person in the local community would view the material, even where the material was 

USCA11 Case: 22-14160 Document: 47-1 Date Filed: 09/05/2024 Page: 24 of 37
22-14160 Opinion of the Court 25

disseminated nationally on the internet rather than in the local 

community). And the Supreme Court has repeatedly held that Miller is not vague. See, e.g., Hamling, 418 U.S. at 116 (holding that 

statute incorporating Miller is not unconstitutionally vague); Smith 

v. United States, 431 U.S. 291, 308–09 (1977) (same); Reno v. ACLU, 

521 U.S. 844, 873 (1997) (explaining that the Miller test is not vague 

because each of its prongs “critically limit[] the uncertain sweep of 

the obscenity definition”).

Moreover, the Supreme Court has foreclosed Ostrander’s 

argument that the Miller test is too vague to allow an individual to

judge for himself the artistic value (or lack thereof) of his work. In 

Smith v. United States, 431 U.S. 291 (1977), the Supreme Court 

clearly held that “the type of conduct covered by [an obscenity statute] can be ascertained with sufficient ease to avoid due process 

pitfalls” and that “the possibility that different juries might reach 

different conclusions as to the same material does not render [a 

statute incorporating Miller] unconstitutional.” Id. at 309; see also

Hamling, 418 U.S. at 114–15 (“That there may be marginal cases in 

which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language 

too ambiguous to define a criminal offense.” (quoting Miller, 413 

U.S. at 28 n.10)).

In the alternative, Ostrander argues that, because the Government and the district court had one interpretation of what the 

Government must prove at trial, and he had another, the statute

“obviously” must be “unconstitutionally ambiguous and vague.” 

USCA11 Case: 22-14160 Document: 47-1 Date Filed: 09/05/2024 Page: 25 of 37
26 Opinion of the Court 22-14160

But, despite Ostrander’s characterization, he does not genuinely offer an alternative reading of the statute or the Miller test, but rather 

disagrees with the district court’s ruling on his specific sufficiencyof-the-evidence challenge, which we review below.

We reject Ostrander’s claim that the statute is void for 

vagueness when applied to a person’s private works maintained in 

his home.

III.

Ostrander also challenges the sufficiency of the evidence at 

his trial. We review a challenge to the sufficiency of evidence de

novo. United States v. Capers, 708 F.3d 1286, 1296 (11th Cir. 2013). 

We consider all of the evidence “in the light most favorable to the 

Government, and draw[] all reasonable inferences and credibility 

choices in the Government’s favor.” Id. “Evidence is sufficient to 

support a conviction if ‘a reasonable trier of fact could find that the 

evidence established guilt beyond a reasonable doubt.’” United 

States v. Maxwell, 579 F.3d 1282, 1299 (11th Cir. 2009) (quoting 

United States v. Calhoon, 97 F.3d 518, 523 (11th Cir. 1996)). In different words, “[t]he verdict must stand . . . ‘unless no trier of fact 

could have found guilt beyond a reasonable doubt.’” United States 

v. Calderon, 127 F.3d 1314, 1324 (11th Cir. 1997) (quoting United 

States v. Battle, 892 F.2d 992, 998 (11th Cir. 1990)). “[A]ny reasonable construction of the evidence” that “would have allowed the 

jury to find the defendant guilty beyond a reasonable doubt” is sufficient to meet this standard. United States v. Herrera, 931 F.2d 761, 

762 (11th Cir. 1991).

USCA11 Case: 22-14160 Document: 47-1 Date Filed: 09/05/2024 Page: 26 of 37
22-14160 Opinion of the Court 27

Broken down to the basic elements of this crime, the Government had the burden to prove that: (1) Ostrander knowingly 

possessed a visual depiction of any kind; (2) Ostrander knew the 

visual depiction depicted a minor engaging in sexually explicit conduct; (3) the visual depiction was obscene; and (4) the visual depiction was either (a) mailed or shipped or transported in foreign or 

interstate commerce by any means, or (b) produced using materials 

that had been mailed or shipped or transported in interstate or foreign commerce by any means. 18 U.S.C. § 1466A(b)(1). Reviewing 

the evidence presented in the light most favorable to the Government (as we must), we conclude that a reasonable jury could find 

that the evidence established Ostrander’s guilt beyond a reasonable 

doubt.

First, the jury heard testimony that these images were found 

on at least three electronic devices in Ostrander’s possession when 

he was arrested in the Publix café. The jury reasonably could find 

that Ostrander knowingly possessed these images, easily satisfying 

the first element.

Second, the jury heard sufficient evidence from which it 

could readily infer that Ostrander knew the images in his possession depicted a minor engaging in sexually explicit conduct. Lada 

testified at trial that the images were found on multiple electronic

devices found in Ostrander’s possession. Wilson testified that 

some of the images were found in the cache files of the Telegram 

app on Ostrander’s phone, associated with an account using Ostrander’s phone number and password. Wilson also told the jury 

USCA11 Case: 22-14160 Document: 47-1 Date Filed: 09/05/2024 Page: 27 of 37
28 Opinion of the Court 22-14160

that URLs found in the web browser on Ostrander’s cell phone 

were linked directly to images identical to those found on the 

Innostor USB. The jury also learned that the laptop -- which was 

password protected and, notably, associated with Ostrander’s 

name -- had search terms identical to the folder names found on 

the Innostor USB. Wilson also testified that the folders on the 

Innostor USB had last been modified from Ostrander’s laptop. Finally, the jury was presented with evidence that Ostrander had 

been previously convicted of possession of child pornography. 

Taking all of this in concert and in a light most favorable to the 

Government, a reasonable jury could find that Ostrander knew 

what these images depicted.

Skipping ahead to the fourth element, the parties stipulated 

to the jury (and we must accept) that the electronic devices were 

all manufactured outside the state of Florida and were materials 

that had been shipped and transported in interstate and foreign 

commerce.

That leaves us with only the third element: whether the images were indeed obscene. Again, the term “obscenity” in the statute incorporates the Miller test. Ostrander’s argument is essentially 

that the jury viewed ten images in all, but that nine of the images 

(Exhibits 5A through 5I) were, allegedly, taken out of context from 

larger series of images, which included text, dialogue bubbles, title 

pages, etc. Ostrander says that, when the Government showed 

these images to the jury without also presenting the larger context 

of the series each image belonged to, the jury could not have found 

USCA11 Case: 22-14160 Document: 47-1 Date Filed: 09/05/2024 Page: 28 of 37
22-14160 Opinion of the Court 29

that “the work, taken as a whole, appeals to the prurient interest” or 

that “the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Miller, 413 U.S. at 24 (emphasis added).

Therefore, Ostrander reasons, no reasonable jury could have found 

that the images were obscene because the Government did not 

meet its burden by giving the jury the opportunity to consider the 

alleged “works” as a whole. The Government responds that the 

jury heard testimony that the images were “discrete, distinct, individual, and hence, not related in the sense of a broader work, and, 

at a minimum, a reasonable jury could have found that to be the 

case.”

This raises what sometimes is a difficult question: are separate, individually named (and individually copiable or movable) 

image files that nevertheless appear together in the same computer 

folder and appear to be related considered to be separate works? 

Or are they scenes that must be considered as part of a work “as a 

whole” that the factfinder must consider in their full context? Cf.

Kois v. Wisconsin, 408 U.S. 229, 231–32 (1972) (holding that “Sex 

Poem,” an “undisguisedly frank, play-by-play account of the author’s recollection of sexual intercourse,” must nevertheless be 

considered by the factfinder in “the context” of ten other poems 

published alongside it in the same newspaper).

The Government says that there was no evidence “that the 

480 images were part of a single story.” But this misapprehends 

Ostrander’s argument. Ostrander at no point alleged that all 480 

images were part of a single work. Rather, Ostrander claims that 

USCA11 Case: 22-14160 Document: 47-1 Date Filed: 09/05/2024 Page: 29 of 37
30 Opinion of the Court 22-14160

nine of the images shown to the jury were taken from five separate 

series of images (or, as he characterizes them, “works”). And if Ostrander were right that each of these series of separate image files 

should have been taken together and measured as a “work,” then 

he may be right that the jury should have had the opportunity to 

consider each image in the context of its respective work “taken as 

a whole.” Miller, 413 U.S. at 24 (citing Kois, 408 U.S. at 230); see also

Free Speech Coal., 535 U.S. at 248 (“Under Miller, the First Amendment requires that redeeming value be judged by considering the 

work as a whole. Where the scene is part of the narrative, the work 

itself does not for this reason become obscene, even though the 

scene in isolation might be offensive.”); United States v. Deason, 965 

F.3d 1252, 1262–63 (11th Cir. 2020) (clarifying that the jury need 

not view the entire work, so long as “the matter is placed in context” so that no context is “lost because only select portions are 

viewed”).

But we need not resolve this issue today. Ostrander concedes that Exhibit 5J is “a single, stand-alone image that has no 

broader context.” It was not part of any series, nor was it drawn 

from some larger work or story. Thus, in viewing Exhibit 5J, the 

jury indisputably viewed the work as a whole. Exhibit 5J is a cartoon style drawing of what appears to be an adult male engaging 

in anal sexual intercourse with a child in a school classroom. A jury 

could reasonably find that Exhibit 5J is obscene. The evidence was 

sufficient to convict Ostrander.

USCA11 Case: 22-14160 Document: 47-1 Date Filed: 09/05/2024 Page: 30 of 37
22-14160 Opinion of the Court 31

Ostrander’s sole answer is based on misreading the statutory 

scheme. Ostrander says that, by definition, Exhibit 5J does not fall 

within the ambit of § 1466A because it does not satisfy the statute’s 

definition of “sexually explicit conduct.”

Ostrander raises this challenge to his conviction for the first 

time on appeal, so we review it only for plain error. United States 

v. Reed, 941 F.3d 1018, 1020 (11th Cir. 2019). We may find plain 

error only where “(1) there is an error; (2) that is plain or obvious; 

(3) affecting the defendant’s substantial rights in that it was prejudicial and not harmless; and (4) that seriously affects the fairness, 

integrity or public reputation of the judicial proceedings.” United 

States v. Hall, 314 F.3d 565, 566 (11th Cir. 2002); see also United States 

v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). “The Supreme 

Court has instructed us that plain error review should be exercised 

sparingly, and only in those circumstances in which a miscarriage 

of justice would otherwise result.” Rodriguez, 398 F.3d at 1298 (internal quotation marks and citations omitted). Ostrander carries 

the “difficult” burden of establishing each of the four prongs. Greer 

v. United States, 593 U.S. 503, 508 (2021) (quoting Puckett v. United 

States, 556 U.S. 129, 135 (2009)). Ostrander fails to meet the burden 

of establishing even the first two prongs because he has failed to 

establish any error at all, let alone one that is plain or obvious.

Ostrander begins his argument with a citation to § 2256, 

which lists the general definitions for the chapter. This section says 

that, when defining “child pornography,” the definition of “sexually explicit conduct” found in § 2256(2)(A) should be used for

USCA11 Case: 22-14160 Document: 47-1 Date Filed: 09/05/2024 Page: 31 of 37
32 Opinion of the Court 22-14160

images of real or identifiable minors, but that the definition of “sexually explicit conduct” found in § 2256(2)(B) should be used for virtual images not involving real minors. 18 U.S.C. § 2256(8). Ostrander reasons that because Exhibit 5J is a virtual image, the definition of “sexually explicit conduct” must be the one found in 

§ 2256(2)(B), which -- unlike § 2256(2)(A) -- requires that sexual intercourse be “graphic” in order to count as sexually explicit conduct, and sexually explicit conduct is “graphic” under § 1466A(f)(3) 

only if “a viewer can observe any part of the genitals or pubic area” 

while “the sexually explicit conduct is being depicted.” Ostrander 

adds that Exhibit 5J does not depict any genitals or pubic area, and 

so the image cannot fall under the statute.

But Ostrander misreads the statute by beginning his analysis 

with the chapter-wide definition of “child pornography” found in 

§ 2256(8). The statutory scheme is properly read by beginning with 

the specific statute Ostrander was charged with violating: § 1466A. 

And under § 1466A(f), the term “sexually explicit conduct” for the 

purposes of this section -- which does not mention “child pornography” -- “has the meaning given the term in section 2256(2)(A) or

2256(2)(B).” That is, either of the definitions found in § 2256(2) satisfies the statute Ostrander was charged with violating. And -- unlike § 2256(2)(B) -- under § 2256(2)(A), sexually explicit conduct includes “sexual intercourse, including genital-genital, oral-genital, 

anal-genital, or oral-anal, whether between persons of the same or 

opposite sex.” Id. § 2256(2)(A)(i). There is no “graphic” requirement. Exhibit 5J meets this definition easily. Ostrander has not 

established plain error, nor has Ostrander shown that his 

USCA11 Case: 22-14160 Document: 47-1 Date Filed: 09/05/2024 Page: 32 of 37
22-14160 Opinion of the Court 33

substantial rights were affected or, finally, that the fairness and integrity of these proceedings can seriously be called into question. 

In short, a reasonable jury could have found Ostrander’s 

guilt beyond a reasonable doubt. His sufficiency challenge fails.

IV.

Finally, Ostrander alleges prosecutorial misconduct. This allegation is also unconvincing.

“[D]ue process is violated when the prosecutor obtains a 

conviction with the aid of false evidence which it knows to be false 

and allows to go uncorrected.” United States v. Barham, 595 F.2d 

231, 241 (5th Cir. 1979).5 “It is immaterial whether or not the prosecution consciously solicited the false evidence.” Id. “To establish 

prosecutorial misconduct for the use of false testimony, a defendant must show the prosecutor knowingly used perjured testimony, 

or failed to correct what he subsequently learned was false testimony, and that the falsehood was material.” United States v. 

McNair, 605 F.3d 1152, 1208 (11th Cir. 2010). The materiality element is satisfied “if there is a reasonable likelihood the false testimony could have affected the judgment of the jury.” Id.

Ostrander raises two points suggesting misconduct. First, 

Ostrander says that, at a pre-trial hearing regarding his motion to 

compel production, the “government argued that the images are 

5 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we 

adopted as binding precedent all Fifth Circuit decisions issued before October 

1, 1981.

USCA11 Case: 22-14160 Document: 47-1 Date Filed: 09/05/2024 Page: 33 of 37
34 Opinion of the Court 22-14160

‘virtually indistinguishable from real children,[’] inducing the district court to find that they were indistinguishable.’” But the district court was not “induced” to find that the images were virtually 

indistinguishable or anything else. The Government represented 

that the images were indistinguishable, and the court then stated 

that “if you want me to make a finding . . . you will have to provide 

[the images] to me.” The district court viewed the images, and 

found that “[t]hey do appear to be computer images, but . . . I do 

find they are indistinguishable. They look like [what] they would 

have been if they were actual photos. They would have been 

somewhat glossed over, or something like that, but that’s the finding I make.” The Government did not solicit false testimony or let 

perjured testimony stand uncorrected. Rather, the Government 

merely made a representation to the district court and then the district court independently did what trial judges should do: examine 

the images and decide the matter for himself.

We review the district court’s findings of fact, of course, 

only for clear error. United States v. Kennedy, 201 F.3d 1324, 1329 

(11th Cir. 2000). But even if we were to assume arguendo that the 

district court’s determination that the images were “virtually indistinguishable” from real children was clearly erroneous, Ostrander 

has not made any showing or even offered the argument that this 

claimed error was material. The district court’s finding that the 

images were “virtually indistinguishable” was not an element of 

the statute Ostrander was charged with; the jury never heard the 

district court’s determination; and both Ostrander’s counsel and his 

expert witness at trial were given access to the full 480 images.

USCA11 Case: 22-14160 Document: 47-1 Date Filed: 09/05/2024 Page: 34 of 37
22-14160 Opinion of the Court 35

Moreover, at sentencing, the district court found that the 

definition of child pornography (which for sentencing included images that were virtually indistinguishable from real children) did 

not apply, and therefore no sentencing enhancement was made for 

the number of images in Ostrander’s possession. See U.S. Sent’g 

Guidelines Manual § 2G2.2(b)(7). Ostrander cannot even claim 

that the court’s initial finding that the images were virtually indistinguishable from real children had any bearing on his sentence.

Second, Ostrander argues that the prosecution engaged in 

misconduct when its witness Lada “denied, dissembled and obfuscated the fact that nine of the images he reproduced were taken 

from stories and three were taken from groups of related images.” 

For starters, as we see it, Lada’s testimony was not perjurious. It is 

true that, on cross-examination, Lada maintained that he was “not 

attempting to provide any of [his] own context to any of the images” he saw, although he conceded that the images “subjectively”

could be said to relate a story. He also conceded that some of the 

images contained “elements that would be in a story,” and further 

acknowledged that some of the images had dialogue boxes or cartoon bubbles and appeared to be “some sort of progression of 

events.”

It is also true that Lada said that he didn’t know anything 

about a story related to the “my neighborhood” images, after 

which defense counsel impeached him with a copy of his report, 

which said that “some of the images were contained within a storyline depicting a sexual relationship between an adolescent and a 

USCA11 Case: 22-14160 Document: 47-1 Date Filed: 09/05/2024 Page: 35 of 37
36 Opinion of the Court 22-14160

grown male who was involved with the child’s mother.” But impeachment with a prior inconsistent statement goes to Lada’s credibility; it does not necessarily establish prosecutorial misconduct. 

See McNair, 605 F.3d at 1208 (“[A] prior statement that is merely 

inconsistent with a government witness’s testimony is insufficient 

to establish prosecutorial misconduct.”); Hays v. Alabama, 85 F.3d 

1492, 1499 (11th Cir. 1996) (determining there was no due process 

violation where “there has been no showing that [the witness’s] 

later, rather than earlier, testimony was false”).

Moreover, in order to establish prosecutorial misconduct, 

the Government must have either used the allegedly perjurious testimony or failed to correct it. Even if we assume that Lada’s testimony was perjured -- and we don’t -- the Government corrected it. 

On redirect examination, the Government asked the question this 

way: “Just some of the images that the jury has seen, do they appear to be in a series?” Lada replied: “Yeah. There appears to be 

some relation between the images.”

Finally, even if the Government had failed to correct the allegedly perjured testimony -- which it did correct -- Ostrander 

would also need to show that the falsehood was material. United 

States v. Dickerson, 248 F.3d 1036, 1041 (11th Cir. 2001). Again, to 

establish materiality, Ostrander had to demonstrate that the false 

testimony “could reasonably be taken to put the whole case in such 

a different light as to undermine confidence in the verdict.” Id.

(quoting Strickler v. Greene, 527 U.S. 263, 290 (1999)). And as we 

have explained, even if Exhibits 5A through 5I were indisputably 

USCA11 Case: 22-14160 Document: 47-1 Date Filed: 09/05/2024 Page: 36 of 37
22-14160 Opinion of the Court 37

part of a larger context that was not shown to the jury, the jury still 

reasonably could have convicted Ostrander based on Exhibit 5J 

alone, and Ostrander has conceded that Exhibit 5J was a standalone image not involved in any story or larger context. Therefore, 

even if we were to accept Ostrander’s misconduct claims (and we 

don’t), the violations could not be said to have “undermine[d] confidence in the verdict.” Id. at 1042.

We affirm.

AFFIRMED.

USCA11 Case: 22-14160 Document: 47-1 Date Filed: 09/05/2024 Page: 37 of 37