FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

SARAH MELISA COX, AKA Sarah 

Cox, AKA Sarah Cunningham,

Defendant-Appellant.

No. 18-10416

D.C. No.

3:16-cr-08202-

ROS-1

OPINION

Appeal from the United States District Court

for the District of Arizona 

Roslyn O. Silver, District Judge, Presiding

Argued and Submitted May 11, 2020

San Francisco, California

Filed June 26, 2020

Before: Ryan D. Nelson and Daniel A. Bress, Circuit 

Judges, and James S. Gwin,* District Judge.

Opinion by Judge Gwin

* The Honorable James S. Gwin, United States District Judge for the 

Northern District of Ohio, sitting by designation.
2 UNITED STATES V. COX

SUMMARY**

Criminal Law

The panel affirmed convictions on child pornographyrelated charges, including one count of making a notice 

offering child pornography in violation of 18 U.S.C. 

§ 2251(d)(1)(A).

The panel held that one-to-one communications can 

satisfy the “notice” requirement in § 2251(d)(1), and that a 

rational fact-finder could find that the defendant made a 

notice offering child pornography when she sent a one-toone electronic message linking to a Dropbox account that 

contained child pornography. The panel also held that the 

district court did not abuse its discretion when it admitted 

under Fed. R. Evid. 404(b) an uncharged Kik messenger 

exchange to prove the defendant’s identity and absence of 

mistake.

COUNSEL

David Eisenberg (argued), Phoenix, Arizona, for DefendantAppellant.

Krissa M. Lanham (argued), Deputy Appellate Chief; Robert 

I. Brooks, Assistant United States Attorney; Michael Bailey, 

United States Attorney; United States Attorney’s Office,

Phoenix, Arizona; for Plaintiff-Appellee.

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
UNITED STATES V. COX 3

OPINION

GWIN, District Judge:

Sarah Cox used an online instant messaging platform to 

exchange child pornography with one other individual. A 

jury convicted Cox of five child pornography-related 

charges, including one count of making a notice offering 

child pornography in violation of 18 U.S.C. 

§ 2251(d)(1)(A).

With this appeal, Cox argues that a one-to-one 

communication cannot support a conviction for “mak[ing] 

. . . [a] notice . . . offering” child pornography under 

§ 2251(d)(1)(A). Cox also argues that the district court erred 

when it admitted evidence of uncharged conduct.

We disagree with Cox’s reading of the statute, and we 

conclude that the district court did not err in admitting the 

uncharged conduct evidence. We affirm.

I. BACKGROUND

A. Case Overview

In late August 2015, Richard Hennis and a person using 

the moniker “JadeJeckel” communicated on Kik Messenger1

and discussed child pornography and child sex. In later 

November 2015 to January 2016 Kik messages, JadeJeckel 

and Hennis exchanged child pornography. At trial, the 

Government argued that Defendant Sarah Cox used the 

JadeJeckel messaging account. Cox denied that she sent or 

1 Kik Messenger is an instant messaging application available for 

smartphones and tablets. It functions similarly to a standard text 

messaging service.
4 UNITED STATES V. COX

received the messages. The jury convicted Cox on all 

counts.

Although the indictment only alleged criminal conduct 

in December 2015, the Government offered the August 2015 

Kik conversation to prove that Defendant Cox used the 

JadeJeckel account. Appellant Cox says this was prejudicial 

error.

Cox also argues on appeal that insufficient evidence 

supported her conviction of making a notice offering child 

pornography when the notice was in a person-to-person text 

message. She claims the statute could only be violated 

through a wider distributed notice.

B. The Kik Messenger Conversation

On August 24, 2015, Richard Hennis started a Kik 

Messenger conversation with user “JadeJeckel.” The 

Government later claimed Sarah Cox was the JadeJeckel 

user.

A few hours into the August 2015 Kik exchange, 

Defendant Cox steered the conversation to child sex. In this 

text exchange, Defendant Cox and Hennis discussed child 

sex, whether to murder a mother to take her child, and their 

desire to kidnap, enslave, and rape children. After several 

days of these August 2015 messages, Cox ended the 

conversation.

On November 22, 2015, Defendant Cox and Hennis 

reinitiated their Kik conversation. Cox and Hennis quickly 

resumed discussing their child sexual interest. Minutes after 

reconnecting in November 2015, Cox asked Hennis to send 

her his “nastiest favorite” “naughty” videos. In response, 

Hennis sent Cox eleven separate child pornography files.
UNITED STATES V. COX 5

For the next several weeks, Defendant Cox and Hennis 

continued to discuss their child sexual interest. Central to 

the charge for making a notice offering child pornography, 

on December 4, 2015, Defendant Cox used Kik to send 

Hennis two separate Dropbox links, calling them “[g]oodies 

for daddy.” One of the Dropbox accounts contained child 

pornography videos. On December 23, 2015, Hennis sent 

Cox three child pornography images. Hennis and Cox ended 

their text conversation on January 18, 2016.

C. Investigation and Arrest

In early 2016, law enforcement received a tip that 

Richard Hennis had child pornography on his phone. Law 

enforcement arrested Hennis, seized his phone, and 

extracted the Hennis-Cox Kik Messenger conversations 

described above. Investigation into the JadeJeckel identity 

showed substantial evidence linking Sarah Cox to the 

JadeJeckel account, including IP addresses, an email from 

jadejeckel@live.com containing Cox’s resume; Cox’s 

driver’s license listing the same birthday as JadeJeckel; nonpublic photographs of Cox sent by JadeJeckel; and Cox’s 

social media accounts using the JadeJeckel moniker.

The Government arrested Cox and charged her with five 

counts arising out of her Kik Messenger conversation with 

Hennis: three counts of receiving child pornography,2 one 

count of making a notice offering child pornography,3 and 

one count of distributing child pornography.4

2 18 U.S.C. §§ 2252A(a)(2)(A), 2252A(b), 2256.

3 18 U.S.C. §§ 2251(d)(1)(A), 2256.

4 18 U.S.C. §§ 2252A(a)(2)(A), 2252A(b), 2256.
6 UNITED STATES V. COX

D. Trial and Appeal

The case went to trial. The Government presented 

substantial evidence that Sarah Cox was the JadeJeckel Kik 

user. Cox did not contest that JadeJeckel transmitted and 

received child pornography. Instead, Cox argued that she 

was not JadeJeckel. Cox called one witness, a computer 

forensics expert, who testified that hackers can frame people 

by creating fake internet profiles. The expert witness also 

testified that Cox’s surrendered electronic devices did not 

have Kik conversation evidence. The jury convicted Sarah 

Cox on all counts.

On October 24, 2018, Cox appealed. On appeal, Cox 

concedes that the Government showed sufficient evidence 

that she was JadeJeckel. Instead she argues that the evidence 

was insufficient to support a conviction for making a notice 

offering child pornography and that the district court erred 

in admitting certain evidence warranting a new trial.

II. DISCUSSION

A. One-to-One Communications Can Satisfy the 

18 U.S.C. § 2251(d)(1) “Notice” Requirement, and 

Sufficient Evidence Supported Cox’s § 2251(d)(1) 

Conviction.

Cox challenges her conviction for violating 18 U.S.C. 

§ 2251(d)(1)(A), that provides:

(d)(1) Any person who . . . knowingly 

makes, prints, or publishes, or causes to be 

made, printed, or published, any notice or 

advertisement seeking or offering—
UNITED STATES V. COX 7

(A) to receive, exchange, buy, produce, 

display, distribute, or reproduce, any 

visual depiction, if the production of such 

visual depiction involves the use of a 

minor engaging in sexually explicit 

conduct and such visual depiction is of 

such conduct[]

. . .

shall be punished as provided under 

subsection (e).5

To prove this violation, the Government presented 

evidence that Cox sent Hennis a Kik message with a link to 

a Dropbox account that contained child pornography. Cox’s 

message with the link said, “[g]oodies for daddy.”

On appeal, Cox argues that a one-to-one communication 

cannot be a “notice or advertisement” of child pornography 

under 18 U.S.C. § 2251(d)(1). She argues that the statute 

requires “something more than a one-on-one exchange.” 

Because her communication ran only to Hennis, she argues 

there was insufficient evidence for her § 2251(d)(1) 

conviction.

“We review challenges to the sufficiency of evidence, 

including questions of statutory interpretation, de novo.”6

 

“There is sufficient evidence to support a conviction if, 

viewing the evidence in the light most favorable to the 

5 18 U.S.C. § 2251(d)(1)(A).

6 United States v. Aldana, 878 F.3d 877, 880 (9th Cir. 2017).
8 UNITED STATES V. COX

prosecution, any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt.”7

As a preliminary matter, we agree with the Government 

that we only need consider whether the trial evidence 

supports a conviction under the statute’s “notice” prong. If 

the Government proves the “notice” prong, the Government 

does not need to prove the “advertisement” prong.

Section 2251(d)(1) is disjunctive (i.e., the statute 

prohibits “notice or advertisement”).8 The Government 

prosecuted Cox under the “notice” prong. Therefore, we 

consider only whether any rational juror could find that 

evidence of a one-to-one communication could be a “notice” 

under 18 U.S.C. § 2251(d)(1).

1. Statutory Construction

Before we consider the sufficiency of the evidence, we 

first examine the statute. Whether 18 U.S.C. § 2251(d)(1)’s 

“notice” provision applies to one-to-one messages is an issue 

of first impression in this circuit.

In statutory interpretation, “our starting point is the plain 

language of the statute.”9

 “[W]e examine not only the 

specific provision at issue, but also the structure of the 

7 Id. (quoting United States v. Roach, 792 F.3d 1142, 1144 (9th Cir. 

2015)).

8 18 U.S.C. § 2251(d)(1) (emphasis added).

9 United States v. Williams, 659 F.3d 1223, 1225 (9th Cir. 2011).
UNITED STATES V. COX 9

statute as a whole, including its object and policy.”10 “If the 

plain meaning of the statute is unambiguous, that meaning is 

controlling . . . .”11

We first look to the key word in our review: “notice.”12 

The statute does not define notice, so we construe the word 

pursuant to its ordinary meaning.13 To determine ordinary 

meaning, we consider dictionary definitions.14

Most standard English-language dictionary notice 

definitions do not define notice in relation to audience size. 

For example, Merriam-Webster.com gives the following 

definitions of “notice”:

1 a (1): warning or intimation of something :

announcement

(2): the announcement of a party’s intention 

to quit an agreement or relation at a specified 

time

10 Id. (quoting Children’s Hosp. & Health Ctr. v. Belshe, 188 F.3d 

1090, 1096 (9th Cir. 1999)).

11 Id.

12 See United States v. Franklin, 785 F.3d 1365, 1367 (10th Cir. 

2015) (considering whether 18 U.S.C. § 2251(d)(1) applies to a closed 

network).

13 See Sebelius v. Cloer, 569 U.S. 369, 376 (2013); see Animal Legal 

Def. Fund v. United States Dep’t of Agric., 933 F.3d 1088, 1093 (9th Cir. 

2019) (“When a statute does not define a term, we typically give the 

phrase its ordinary meaning.” (quoting FCC v. AT&T Inc., 562 U.S. 397, 

403 (2011))).

14 See Wisconsin Cent. Ltd. v. United States, 138 S. Ct. 2067, 2070–

71 (2018); United States v. Ezeta, 752 F.3d 1182, 1185 (9th Cir. 2014).
10 UNITED STATES V. COX

(3): the condition of being warned or

notified—usually used in the phrase on 

notice

b: information, intelligence

2 a: attention, heed

b: polite or favorable attention : civility

3: a written or printed announcement

4: a short critical account or review15

None of these definitions implicate audience size.

Relying on similar dictionary definitions, the Seventh 

and Tenth Circuits have reached similar conclusions when 

reviewing whether 18 U.S.C. § 2251(d)(1) prohibits 

communications to groups with limited membership.16 In 

view of these dictionary definitions, the ordinary meaning of 

“notice” does not exclude one-to-one communications.

We nonetheless continue our inquiry and consider the 

word modifying “notice.” Section 2251(d)(1) proscribes

15 Notice, Merriam-Webster, https://www.merriamwebster.com/dictionary/notice (last visited May 20, 2020) (capitalization 

altered and examples omitted).

16 United States v. Gries, 877 F.3d 255, 260 (7th Cir. 2017) 

(reviewing two “notice” definitions and opining that “[i]n everyday 

parlance, the term is not limited to warnings or notifications 

disseminated to the general public”); Franklin, 785 F.3d at 1368 

(reviewing 18 “notice” definitions and concluding that none have “a 

public component”) (citing Notice, Webster’s Third New International

Dictionary 1544 (ed. Philip Babcock Gove 1993)).
UNITED STATES V. COX 11

“any notice . . . seeking or offering” child pornography.17 

The Supreme Court has observed that, “[r]ead naturally, the 

word ‘any’ has an expansive meaning, that is, ‘one or some 

indiscriminately of whatever kind.’”18 Thus, Congress’s use 

of “any” suggests Congress intended “notice” to cover any 

communication that could reasonably fall within that term.19 

Notably, the statute does not limit notices to those that are 

widely disseminated to the public at large or a large group of 

people.

We also consider the verbs that precede “any notice.” 

Section 2251(d)(1) prohibits “[a]ny person [from] . . .

mak[ing], print[ing], or publish[ing] . . . any notice.”20 A 

review of these verbs’ dictionary definitions suggests that 

“publish” has a public dissemination component.21 We can 

17 18 U.S.C. § 2251(d)(1) (emphasis added).

18 Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 219 (2008) (alteration 

in original) (quoting United States v. Gonzales, 520 U.S. 1, 5 (1997)); 

accord Olympic Forest Coal. v. Coast Seafoods Co., 884 F.3d 901, 906 

(9th Cir. 2018) (collecting cases for the proposition that the “any” is 

“broad and all-encompassing”); Do Sung Uhm v. Humana, Inc., 620 F.3d 

1134, 1153 (9th Cir. 2010) (“The word ‘any’ is generally used in the 

sense of ‘all’ or ‘every’ and its meaning is most comprehensive.”)

(quoting Fleck v. KDI Sylvan Pools, Inc., 981 F.2d 107, 115 (3d Cir. 

1992)).

19 See Harrison v. PPG Indus., Inc., 446 U.S. 578, 588–89 (1980) 

(construing Section 307(b)(1) of the Clean Air Act expansively in light 

of a 1977 amendment that added the word “any”).

20 18 U.S.C. § 2251(d)(1) (emphasis added).

21 Merriam-Webster includes two representative definitions of 

“publish”: “to make public announcement of” and “to disseminate to

the public.” Publish, Merriam-Webster, https://www.merriam-
12 UNITED STATES V. COX

assume that “print” often could refer, and even more 

typically may refer, to a more public dissemination. But as 

we have explained, the phrase “make[] . . . any notice” is 

quite clearly not limited to public dissemination and can 

include one-to-one communications that are fairly 

characterized as “notices.” At least in the context of this 

case, which involves a defendant who is offering child 

pornography, we do not think the statute’s inclusion of the 

words “publish” and “print” requires us to adopt an 

unnaturally narrow interpretation of the phrase “make[] . . .

any notice.” Once again, if Congress had intended to limit 

the statute in the way Cox suggests, we think it would have 

chosen different language than it did.

At this stage of the inquiry, in view of the ordinary 

meaning of the statutory terms and § 2251(d)(1)’s 

proscription of “any notice,” the statute strongly suggests 

that “make[] . . . any notice” can reach one-to-one 

communications.22

We also consider “the structure of the statute as a whole, 

including its object and policy,”23 and “whether the 

proposed interpretation would frustrate or advance that 

purpose.”24 With its child pornography legislation, 

Congress enacted a “comprehensive” regulatory scheme that 

webster.com/dictionary/publish (definitions 1b and 2a, respectively) 

(last visited June 6, 2020).

22 18 U.S.C. § 2251(d)(1) (emphasis added).

23 Williams, 659 F.3d at 1225 (quoting Children’s Hosp. & Health

Ctr., 188 F.3d at 1096).

24 See United States v. Mohrbacher, 182 F.3d 1041, 1049 (9th Cir. 

1999).
UNITED STATES V. COX 13

“seeks to regulate (more accurately, exterminate) the entire 

child pornography market.”25 Construing “notice” to 

include one-to-one communications furthers this broad 

statutory objective.

In summary, based upon the statute’s plain meaning, we 

hold that one-to-one communications can satisfy the 

“notice” requirement under 18 U.S.C. § 2251(d)(1).

2. Sufficiency of the Evidence

Applying our construction of § 2251(d)(1) to the instant 

case, we decide that a rational fact-finder could find that Cox 

made a notice offering child pornography when she sent a 

one-to-one electronic message with a Dropbox link and 

informed Hennis that it contained child pornography. As 

discussed above, the critical Kik messages conveyed 

Dropbox links and the message “[g]oodies for daddy.” 

Taken together and when viewed in the context of the overall 

conversation between Cox and Hennis, these Kik messages 

reflected an offer to provide child pornography and means 

for how to gain access to it. This is sufficient to constitute 

“mak[ing] . . . any notice . . . offering . . . to . . . exchange, 

. . . display, distribute, or reproduce” child pornography.”26 

The district court therefore did not err in denying Cox’s Rule 

29 motion for a directed verdict as to the § 2251(d)(1)(A) 

count.

25 United States v. McCalla, 545 F.3d 750, 755 (9th Cir. 2008); 

accord United States v. Maxwell, 446 F.3d 1210, 1217 n.7 (11th Cir. 

2006).

26 18 U.S.C. § 2251(d)(1).
14 UNITED STATES V. COX

3. United States v. Caniff

Considering our ruling, we do not reach Cox’s argument 

that § 2251(d)(1) notice is unconstitutionally vague (or 

whether this argument has been waived). We nonetheless 

observe that the Eleventh Circuit case Cox relies upon for 

her associated rule of lenity argument—United States v. 

Caniff27—is distinguishable.

Caniff is the only other case in which a court of appeals 

directly considered whether § 2251(d)(1) notice applies to 

one-to-one communications.28 In Caniff, the 32-year-old 

defendant engaged in a text-message conversation with an 

FBI agent who posed as a 13-year-old girl.29 In the text 

conversation, the defendant asked the purported 13-year-old 

girl for sexually explicit pictures of herself.30 For this 

conduct, the defendant was charged and convicted of 

“mak[ing]” a “notice” “seeking” to “receive” child 

pornography in violation of § 2251(d)(1)(A).31 (In contrast, 

Defendant Cox was charged with “mak[ing]” a “notice” 

“offering” to “display, distribute, or reproduce” child 

pornography.32)

27 955 F.3d 1183 (11th Cir. 2020) (per curiam).

28 See id. at 1185.

29 Id. at 1185–86.

30 Id. at 1186.

31 Id. at 1186–87 (quoting 18 U.S.C. § 2251(d)(1)(A) (emphasis 

added)).

32 See 18 U.S.C. § 2251(d)(1)(A).
UNITED STATES V. COX 15

On appeal, Caniff argued that 18 U.S.C. § 2251(d)(1) 

was ambiguous when applied to this conduct.33 The 

Eleventh Circuit agreed. After applying the tools of 

statutory interpretation, the Eleventh Circuit had “serious 

doubts” about the statute’s applicability to Caniff’s 

conduct.34 The court applied the rule of lenity in Caniff’s 

favor and reversed his conviction under § 2251(d)(1)(A).35

The Eleventh Circuit’s holding was based on a perceived 

ill fit between § 2251(d)(1) and defendant Caniff’s conduct. 

Caniff had asked for pictures of the supposed 13-year-old 

girl, and he was therefore convicted of “mak[ing]” a “notice 

. . . seeking” to “receive” child pornography.36 The Eleventh 

Circuit’s decision seems to turn on its view that “mak[ing] 

. . . any notice . . . seeking . . . to receive” is an unusual 

phrasing that created “serious doubts” about the applicability 

of § 2251(d)(1) to Caniff’s conduct.37

We do not have the same doubts about the applicability 

of § 2251(d)(1) to Cox’s conduct. Cox sent Hennis a link to 

child pornography. The jury found Cox guilty of “mak[ing]” 

a “notice . . . offering” to “display, distribute, or reproduce” 

33 Caniff, 955 F.3d at 1187.

34 Id. at 1191–92; see also id. at 1185 (“Caniff’s private, person-toperson text messages asking an individual he thought was a minor to 

send him sexually explicit pictures of herself cannot support a conviction 

for ‘mak[ing]’ a ‘notice’ to receive child pornography in violation of

18 U.S.C. § 2251(d)(1).”).

35 Id. at 1193.

36 18 U.S.C. § 2251(d)(1)(A) (emphasis added); Caniff, 955 F.3d 

at 1185–86.

37 See Caniff, 95 F.3d at 1189–91.
16 UNITED STATES V. COX

child pornography.38 The § 2251(d)(1)(A) application to 

Cox’s conduct does not warrant application of the rule of 

lenity.

We have no occasion to decide whether all one-to-one 

communications will be a § 2251(d)(1)(A) notice violation. 

Today, we hold only that one-to-one exchanges can satisfy 

the legal definition of “notice” under § 2251(d)(1), and that 

the evidence in Cox’s case, viewed in the light most 

favorable to the prosecution, sufficiently supported her 

conviction.

B. The District Court Did Not Err by Admitting the 

August 2015 Hennis-Cox Kik Messenger Exchange.

Cox and Hennis’s Kik Messenger conversation occurred 

in two distinct times: (1) from August 24 to 27, 2015, and 

(2) from November 22, 2015 to January 18, 2016. The 

indictment charged violations of child pornography laws 

only in the latter period.

Before trial, Cox sought to exclude evidence of the initial 

August 2015 exchange. The district court denied Cox’s 

motion. The district court reasoned that while the August 

2015 messages were not admissible as direct evidence of 

Cox’s December 2015 crimes, the messages were admissible 

under Federal Rule of Evidence 404(b) to prove Cox’s 

identity as the JadeJeckel user and to prove an absence of 

mistake. The district court also found the August 2015 

communications were not unduly prejudicial under Federal 

Rule of Evidence 403.

38 18 U.S.C. § 2251(d)(1)(A) (emphasis added).
UNITED STATES V. COX 17

With this appeal, Cox argues that the district court erred 

in admitting the August 2015 messages under Rule 404(b) 

and 403.

1. Rule 404(b)

Rule 404(b)(1) says that “[e]vidence of a crime, wrong, 

or other act is not admissible to prove a person’s character in 

order to show that on a particular occasion the person acted 

in accordance with the character.” Nonetheless, the Rule 

provides that such other-act “evidence may be admissible for 

another purpose, such as proving motive, opportunity, intent, 

preparation, plan, knowledge, identity, absence of mistake, 

or lack of accident.”39

The Ninth Circuit uses a four-part test to determine the 

admissibility of evidence under Rule 404(b):

Such evidence may be admitted if: (1) the 

evidence tends to prove a material point; 

(2) the other act is not too remote in time; 

(3) the evidence is sufficient to support a 

finding that defendant committed the 

other act; and (4) (in certain cases) the act 

is similar to the offense charged.40

“The government ‘has the burden of proving that the 

evidence meets all of the above requirements.’”41 This court 

39 Fed. R. Evid. 404(b)(2).

40 United States v. Bailey, 696 F.3d 794, 799 (9th Cir. 2012) (quoting 

United States v. Romero, 282 F.3d 683, 688 (9th Cir. 2002)).

41 Id. (quoting United States v. Arambula-Ruiz, 987 F.2d 599, 602

(9th Cir. 1993)).
18 UNITED STATES V. COX

reviews a district court’s admission of Rule 404(b) evidence 

for an abuse of discretion.42

Here, the district court did not abuse its discretion when 

it admitted the August 2015 messages under Rule 404(b).

As to the first requirement, the August 2015 Hennis-Cox 

exchange tends to prove two material issues—Cox’s use of 

the JadeJeckel account (identity) and the absence of mistake. 

The August 2015 messages show Cox’s strong interest in 

child pornography, negating the possibility that the later 

child pornography transmissions were mistakes. The 

August messages also included substantial evidence 

identifying Defendant Sarah Cox as using the JadeJeckel 

moniker. For example, in the August 2015 exchanges, 

JadeJeckel sent a non-public nude selfie of Cox and 

described personal information that applied to Cox.

As to the timeliness requirement, the August 2015 

exchange occurred approximately three to four months 

before the charged conduct.43

With regards to the need to show that Cox committed the 

earlier acts, enough evidence suggested that Cox was the 

August 2015 JadeJeckel user. As described, there was 

considerable evidence identifying Cox as JadeJeckel.44

42 United States v. Carpenter, 923 F.3d 1172, 1180–81 (9th Cir. 

2019).

43 See United States v. Lozano, 623 F.3d 1055, 1059-60 (9th Cir. 

2010) (per curiam) (concluding that three years was not too remote).

44 See Romero, 282 F.3d at 688 (observing that the third prong of 

our Rule 404(b) test is a “low threshold”).
UNITED STATES V. COX 19

In consideration of the final requirement, the August 

2015 messages were similar to the November 2015 to 

January 2016 conversations, which included the criminal 

acts charged. Both sets of messages involved the same 

participants and their shared interest in child pornography.

The Government satisfied its Rule 404(b) burden. The 

district court did not abuse its discretion in admitting the 

August 2015 conversation under Rule 404(b) to prove Cox’s 

identity and absence of mistake.

2. Rule 403

“Even if the proffered evidence satisfies these [four Rule 

404(b)] requirements, the district court should decline to 

admit it [under Rule 403] if its probative value is 

substantially outweighed by the danger of unfair 

prejudice.”45 We review the district court’s admission of 

evidence under Rule 403 for an abuse of discretion.46

We are satisfied that the district court did not abuse its 

discretion under Rule 403 when it admitted the August 2015 

Kik conversation.

The August 2015 exchange’s probative value was 

substantial. The trial largely concerned only one contested 

issue—the identity of JadeJeckel. The August exchange 

included significant evidence linking Cox to the JadeJeckel 

account.

45 United States v. Banks, 514 F.3d 959, 976 (9th Cir. 2008) (internal 

quotation marks omitted).

46 United States v. Flores-Blanco, 623 F.3d 912, 919 n.3 (9th Cir. 

2010).
20 UNITED STATES V. COX

As to the danger of unfair prejudice, the August 2015 

messages included prejudicial evidence. In the August 2015 

messages, Cox and Hennis discussed murdering a mother to 

steal a child and their desire to kidnap, enslave, and rape 

children. But other-act evidence in sex-crimes cases is often 

emotionally charged and inflammatory, and this does not 

control the Rule 403 analysis.47

Other-act evidence should be considered in the context 

of each case.48 Here, the August 2015 messages were 

prejudicial but no more prejudicial than the November 2015 

to January 2016 messages. The November 2015 to January 

2016 messages included actual child rape and child sexual 

assault images and videos. In this context, the August 2015 

messages were not unduly prejudicial.

The district court recognized that the August 2015

messages were potentially prejudicial but found that their 

probative value justified admission. “The district court is to 

be given ‘wide latitude’ when it balances the prejudicial 

47 See United States v. LeMay, 260 F.3d 1018, 1027–30 (9th Cir. 

2001) (concluding that evidence of defendants’ prior acts of child 

molestation, admitted under Federal Rule of Evidence 414, did not need 

to be excluded under Rule 403).

48 United States v. Jayavarman, 871 F.3d 1050, 1064 (9th Cir. 2017) 

(“That [probative] value was not substantially outweighed by any risk of 

unfair prejudice that might have arisen from the evidence, especially in 

the context of other evidence adduced at trial.”); see also LeMay, 

260 F.3d at 1031 (“[E]vidence of a defendant’s prior sex crimes will 

always present the possibility of extreme prejudice, and that district 

courts must accordingly conduct the Rule 403 balancing inquiry in a 

careful, conscientious manner that allows for meaningful appellate 

review of their decisions.”).
UNITED STATES V. COX 21

effect of proffered evidence against its probative value.”49

Here, the district court did not abuse its discretion in 

admitting the evidence.

III. CONCLUSION

Based on the plain statutory language, we hold that oneto-one communications can satisfy the legal definition of 

“notice” under 18 U.S.C. § 2251(d)(1). Applying this 

construction to the instant case, we conclude that a rational 

trier of fact could find that Cox made a notice offering child 

pornography when she sent a one-to-one electronic message 

linking to a Dropbox account that contained child 

pornography. We also hold that the district court did not 

abuse its discretion when it admitted the uncharged August 

2015 messages under Federal Rule of Evidence 404(b).

The judgment of conviction is AFFIRMED.

49 United States v. Higuera-Llamos, 574 F.3d 1206, 1209 (9th Cir. 

2009) (quoting United States v. Spencer, 1 F.3d 742, 744 (9th Cir. 

1993)).