United States Court of Appeals

For the Eighth Circuit

___________________________

No. 18-1355

___________________________

United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Jayme Nathaniel Walker

lllllllllllllllllllllDefendant - Appellant

____________

Appeal from United States District Court 

for the Western District of Missouri - Jefferson City

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Submitted: November 14, 2018

Filed: March 6, 2019

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Before GRUENDER, KELLY, and GRASZ, Circuit Judges.

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GRUENDER, Circuit Judge.

Jayme Walker met W.F., who was fourteen at the time, “on a social media site

for guys seeking other people.” W.F. falsely claimed that he was eighteen years old

to join the site, but he told Walker that he was fourteen. The two exchanged sexual

messages and images on the website and by text message. The communications
began in June 2013 and ended in February 2014 when W.F.’s mother discovered the

exchanges and a police investigation began. 

Walker waived indictment and was charged by information with four counts.

The Government later dismissed one count. Following trial, a jury found him guilty

on the remaining three counts: (1) 18 U.S.C. § 1470, Transfer of Obscene Materials

to a Minor; (2) 18 U.S.C. § 2252(a)(2) and (b)(1), Receipt of Child Pornography; and

(3) 18 U.S.C. § 2251(a), Sexual Exploitation of a Minor. The district court

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sentenced Walker to 264 months’ imprisonment. 

Walker now appeals. He claims that the district court erred by refusing to

admit evidence of W.F.’s sexual conversations with other men. He argues further that

the district court erred in excluding evidence about the source of Walker’s fantasies

and in limiting his cross-examination of the victim. He also contends the district

court abused its discretion by failing to require knowledge of the victim’s age in a

jury instruction and by denying his motion for judgment of acquittal. Finally, he

argues that his sentence constitutes cruel and unusual punishment in violation of the

Eighth Amendment. We consider each of these arguments in turn and affirm.

I.

A.

“We review a district court’s interpretation and application of the rules of

evidence de novo and its evidentiary rulings for abuse of discretion.” United States

v. Street, 531 F.3d 703, 708 (8th Cir. 2008). “However, we review evidentiary

The Honorable Roseann A. Ketchmark, United States District Judge for the

1

Western District of Missouri

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rulings de novo when they implicate constitutional rights.” United States v. Pumpkin

Seed, 572 F.3d 552, 558 (8th Cir. 2009).

First, Walker argues that the district court erred when it excluded evidence of

W.F.’s sexual communications with other men. In a case involving “alleged sexual

misconduct,” the Federal Rules of Evidence prohibit the admission of evidence

“offered to prove that a victimengaged in other sexual behavior” or “evidence offered

to prove a victim’s sexual predisposition.” Fed. R. Evid. 412(a)(1), (2). But the rule

containsthree exceptions for criminal cases. Fed. R. Evid. 412(b). Only the first and

third exceptions are at issue here. The first exception allows “evidence of specific

instances of a victim’s sexual behavior, if offered to prove that someone other than

the defendant was the source of semen, injury, or other physical evidence.” Fed. R.

Evid. 412(b)(1)(A). The third exception allows “evidence whose exclusion would

violate defendant’s constitutional rights.” Fed. R. Evid. 412(b)(1)(C).

Walker argues that the first exception applies in this case “because the images

sent by [W.F. to Walker] could have been of himself or other people, or both.” And

he says the images “could have been prepared by [W.F.] for another person or during

another conversation with someone else,” rather than at Walker’s inducement. 

Walker sought to “adduce evidence that [W.F.] initiated communication with other

adults through age-restricted websites; and sent nude photographs using agerestricted websites, during the same time that he is alleged to have communicated

with Defendant.” The district court questioned the relevance of the communications

and observed that Walker appeared to be arguing that “exploitation by this defendant

isn’t as bad because lots of folks were exploiting [W.F.].” It then excluded the

communications.

We find no basis for concluding that the district court abused its discretion in

excluding the evidence. The first exception to Rule 412 allows “evidence ofspecific

instances of a victim’s sexual behavior, if offered to prove that someone other than

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the defendant was the source of . . . other physical evidence.” But here, Walker

sought to question W.F. about the general fact that he had initiated sexual

conversations with and sent images of himself to other people. He did not seek to

introduce “specific instances” that indicated that others had induced W.F. to produce

the images that W.F. later sent to Walker. Instead, Walker argued that the evidence

he sought to introduce showed that W.F. “wasinitiating with everybody. This is what

he did. This was his hobby with everybody.” Thus, it was not an abuse of discretion

for the district court to exclude the evidence. See United States v. Ogden, 685 F.3d

600, 604-05 (6th Cir. 2012) (excluding evidence of the victim’s chat logs with other

men offered by the defendant to show that “one of those men might have originally

persuaded the victim to take the explicit pictures” in a § 2251 case because Rule

412(a)(1) “forbids the introduction of ‘evidence offered to prove that a victim

engaged in other sexual behavior’”). 

Walker also argues that the third Rule 412 exception applies in this case

because evidence thatW.F. “sent and received numeroussexual communications with

a number of people during the same period of time he sexted Appellant directly

contradicts” an element of Count Three: that Walker used, persuaded, induced, or

enticed W.F. to produce the image. 18 U.S.C. § 2251(a). Walker claims that the

exclusion of the evidence thus violated his Fifth and Sixth Amendment rights to

“introduce evidence in his own defense.” 

When considering whether evidence is admissible under Rule 412(b)(1)(C),

“we start with the premise that defendants have a constitutional right under the Fifth

and Sixth Amendments to introduce evidence in their defense.” Pumpkin Seed, 572

F.3d at 559. But the right “is not without limitation.” Id. at 560. “[T]he key

inquiry . . . is whether the district court’s exclusion of evidence . . . was arbitrary or

disproportionate to the purposes that its exclusion was designed to serve.” Id. Here,

the district court “saved [W.F.] from the harassment and embarrassment concomitant

with discussing the details” of his sexual conversations with other men. See id. And,

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as explained above, Walker sought to introduce evidence of W.F.’s sexual history,

rather than “specific instances” indicating that others had induced W.F. to produce

the images that W.F. sent to Walker. Thus, the exclusion of the evidence was not

“arbitrary or disproportionate to the purposes that its exclusion was designed to

serve.” Id. The district court did not violate Walker’s Fifth and Sixth Amendment

rights by excluding the evidence of W.F.’s sexual communications with other men.

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Second, Walker argues that the district court erred in excluding “fantasy source

material.” Walker maintained at trial that he believed that W.F. was an adult and that

he and W.F. were acting out a fantasy. In support of that argument, he sought to

admit an exhibit containing pages from a website from which Walker found “source

material” for fantasies that he played out in conversations on social media sites like

the one on which he met W.F. The district court determined that the exhibit was not

helpful or probative and that it would be confusing to the jury. The exhibit is a

twelve-page list of categories into which the website grouped fantasy stories. 

Although it was not admitted into evidence, Walker was permitted to testify about

this information. He explained that the website he used contained “categories” of

information,including “athletics,” “bestiality,” “celebrity,” and a “cross-generational”

category that “deals with older guys and younger guys.” Walker also testified that the

website is “a huge listing of any possible scenario that you can think of in the erotica

world.” Thus, any error is harmless because the exhibit was cumulative. See

Walker argues further that W.F.’s testimony opened the door to cross2

examination of specific instances of W.F.’s sexual behavior. During W.F.’s

testimony, the Government asked, “And did you seek attention from these men?” 

W.F. answered, “I did.” But in its very next question, the Government focused its

inquiry on Walker by asking, “And did Jayme Walker give you attention?” The

Government’s subsequent questions similarly focused on Walker. Thus, the district

court did not abuse its discretion by continuing to exclude the evidence because the

Government did not make “unfair prejudicial use of related evidence on direct

examination.” See United States v. Durham, 868 F.2d 1010, 1012 (8th Cir. 1989).

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McWilliams v. United States, 394 F.2d 41, 45-46 (8th Cir. 1968) (“[I]n view of the

cumulative nature of the rejected evidence, its denial can hardly be said to have

prejudiced the appellant.”); United States v. Tapio, 634 F.2d 1092, 1094-95 (8th Cir.

1980) (per curiam) (“The court’s error, if any, in excluding the evidence was

harmless. . . . The excluded testimony was merely cumulative.”).

B.

Walker next argues that the district court erred in placing a time limit on his

cross-examination of W.F. The district court limited Walker’s cross-examination to

one hour and thirty minutes, four times the length of the Government’s direct

examination. In the past, we have applied competing standards of review. Compare

United States v. Warfield, 97 F.3d 1014, 1024 (8 Cir. 1996) (“Absent a clear abuse

th

of discretion and a showing of prejudice, we will not reverse a district court’s ruling

limiting cross-examination of a prosecution witness on the basis that it impermissibly

infringed upon the defendant’s right of confrontation.”) with United States v. Plume,

847 F.3d 624, 629 (8th Cir. 2017) (“This court reviews evidentiary rulings regarding

the scope of a cross examination for abuse of discretion, but where the Confrontation

Clause is implicated, we consider the matter de novo.” (internal quotation marks

omitted)). The outcome is the same under either standard. 

“A critical factor in determining whether a defendant’s right of confrontation

has been violated is whether the defendant had other ways to obtain the effect that the

excluded examination would have allegedly established.” United States v. Brown,

110 F.3d 605, 611 (8th Cir. 1997). The district court correctly noted that most of the

cross-examination had been spent cumulatively reading an exhibit containing the

texts between W.F. and Walker that had been admitted into evidence and would be

available to the jury. And it concluded that it was “not efficient to go through a

lengthy 264-page document.” Further, Walker presents no evidence that the time

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limit prejudiced him. See Harrington v. Iowa, 109 F.3d 1275, 1277 (8th Cir. 1997)

(requiring a defendant to show that “[a] reasonable jury might have received a

significantly different impression of [the witness’] credibility had [defense] counsel

been permitted to pursue his proposed line of cross examination” (alteration in

original)). Thus, we will not reverse the district court’s ruling.

C.

In addition, Walker argues that the district court abused its discretion by not

instructing the jury that Walker had to know that W.F. was a minor as he claims is

required for a conviction under 18 U.S.C. § 2251(a). “We review a district court’s

formulation of jury instructions for abuse of discretion and consider whether the

instructions correctly state the applicable law.” United States v. Pliego, 578 F.3d 938,

942 (8th Cir. 2009) (internal quotation marks omitted). We have previously held that

a “district court did not abuse its discretion in refusing to instruct the jury that

knowledge of the victim’s age is an element of § 2251(a).” Id. at 943. Thus, the

district court did not abuse its discretion here.3

D.

Walker further argues that the district court erred in denying his motion for

judgment of acquittal. He contends that there was insufficient evidence to support

his conviction because “all evidence of guilt originated from a platform of fantasy.” 

We have also previously held that the First Amendment’s restriction against

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chilling protected speech “does not require a reasonable-mistake-of-age defense to

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

States v. Wilson, 565 F.3d 1059, 1069 (8th Cir. 2009). We thus reject Walker’s

argument that a mistake-of-age defense should have been included in the jury

instructions here. See Pliego, 578 F.3d at 943–44.

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Specifically, Walker claimed in his motion that all of the photographs he received

from W.F. were of a “post-pubescent male” and that it was “impossible” to know,

based on those images, that W.F. was less than the required age. He argued that

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“there was no link between Defendant and the reality that the victim was in fact a

minor, other than the statements made . . . that from Defendant’s perspective were

fantastical.” 

“We review the sufficiency of the evidence de novo, viewing evidence in the

light most favorable to the government, resolving conflicts in the government’s favor,

and accepting all reasonable inferences that support the verdict.” United States v.

Piwowar, 492 F.3d 953, 955 (8th Cir. 2007). “We must uphold the verdict if there

is an interpretation of the evidence that would allow a reasonable-minded jury to find

the defendant guilty beyond a reasonable doubt.” United States v. Wainright, 351

F.3d 816, 822 (8th Cir. 2003).

Walker communicated with W.F. for approximately eight months. W.F.

testified that he told Walker that he wasfourteen, and he testified that he did not think

his communications with Walker were based on fantasy. W.F. also sent Walker a

message about working on homework and another about attending the homecoming

dance. Further, Walker’s own messages support the jury’s finding. On one occasion

Walker said, “I can’t lie. It kind of makes me nervous. I’m not one of those

pedophile guys, but you are underage and can get me in trouble.” On a different

occasion, after W.F. asked Walker to send him photographs, Walker replied, “I don’t

think we should that [sic] anymore because of our age difference. I can get in trouble. 

Sorry.” And there is no dispute that Walker and W.F. sent each other pornographic

images. This evidence is sufficient for a reasonable jury to conclude that Walker

While Walker’s § 2251 conviction did not require knowledge of the victim’s 4

age, his § 1470 conviction did require knowledge that the victim “has not attained the

age of 16 years.” 18 U.S.C. § 1470.

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knew that W.F. was less than sixteen years old. See also Lavender v. Kurn, 327 U.S.

645, 653 (1946) (“[W]here, as here, there is an evidentiary basis for the jury’s verdict,

the jury is free to discard or disbelieve whatever facts are inconsistent with its

conclusion.”). Thus, the district court did not err in denying Walker’s motion for

judgment of acquittal.

E.

Finally, Walker argues that his 264-month sentence constitutes cruel and

unusual punishment in violation of the Eighth Amendment. We review Eighth

Amendment challenges de novo. United States v. Vanhorn, 740 F.3d 1166, 1169 (8th

Cir. 2014). The Eighth Amendment does not guarantee proportionality between

crime and sentence. See Harmelin v. Michigan, 501 U.S. 957, 965 (1991). “[T]his

Court has never held that a sentence within the statutory range violates the Eighth

Amendment.” United States v. Patten, 664 F.3d 247, 252 (8th Cir. 2011) (alteration

in original). Walker’s sentence is less than the 360-month statutory maximum for

Walker’s § 2251 conviction. And we have previously rejected an Eighth Amendment

challenge to a 360-month sentence under § 2251. See United States v. Martynenko,

717 F. App’x 645, 646 (8th Cir. 2018) (per curiam) (rejecting an Eighth Amendment

challenge to a sentencing package that included a 360-month sentence for a § 2251(a)

conviction); Patten, 664 F.3d at 252. Likewise, we reject Walker’s claim that his

264-month sentence constitutes cruel and unusual punishment in violation of the

Eighth Amendment.

II.

For the foregoing reasons, we affirm Walker’s conviction and sentence.

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KELLY, Circuit Judge, concurring.

I concur in the court’s opinion in all respects but one. I believe that the district

court’s time limitation on Walker’s cross-examination of W.F. violated Walker’s

Sixth Amendment right of confrontation. But because I conclude that the error was

harmless, I agree that the judgment should be affirmed.

I

We review “evidentiary rulings regarding the scope of a cross[-]examination

for abuse of discretion, but where the Confrontation Clause isimplicated, we consider

the matter de novo.” United States v. White Plume, 847 F.3d 624, 629 (8th Cir. 2017)

(quoting United States v. Williams, 796 F.3d 951, 960 (8th Cir. 2015)). The Sixth

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Amendment’s Confrontation Clause guarantees that “[i]n all criminal prosecutions,

the accused shall enjoy the right . . . to be confronted with the witnesses against him.” 

U.S. Const. amend. VI. “Generally speaking, the Confrontation Clause guarantees

an opportunity for effective cross-examination”; it does not guarantee

“cross-examination that is effective in whatever way, and to whatever extent, the

defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20 (1985). Accordingly,

the right to cross-examination “may, in appropriate cases, bow to accommodate other

legitimate interests in the criminal trial process.” Michigan v. Lucas, 500 U.S. 145,

149 (1991) (quoting Rock v. Arkansas, 483 U.S. 44, 55 (1987)). “[T]rial judges

retain wide latitude to limit reasonably a criminal defendant’s right to cross-examine

a witness based on concerns about, among other things, harassment, prejudice,

To the extent we have applied inconsistent standards of review to 5

Confrontation Clause questions, as the court suggests, it does not affect my view. 

Even under an abuse of discretion standard, I would conclude that the district court

erred in limiting Walker’s cross-examination of W.F.

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confusion of the issues, the witness’ safety, or interrogation that is repetitive or only

marginally relevant.” Id. (cleaned up).

But “[r]estrictions on a criminal defendant’s rights to confront adverse

witnesses and to present evidence ‘may not be arbitrary or disproportionate to the

purposes they are designed to serve.’” Id. at 151 (quoting Rock, 483 U.S. at 56); see

also United States v. Bear Stops, 997 F.2d 451, 454–57 (8th Cir. 1993) (reversing

conviction where exclusion of testimony was disproportionate to the interests that

exclusion sought to serve). Accordingly, we must balance the importance of the

excluded evidence to Walker’s defense against the interests articulated by the district

court to determine if the restriction was reasonable. See Boysiewick v. Schriro, 179

F.3d 616, 620 (8th Cir. 1999); see also Olden v. Kentucky, 488 U.S. 227, 232 (1988)

(balancing relevance and importance ofimpeachment evidence against “[s]peculation

as to the effect of jurors’ racial biases” to conclude that trial court’s limitation on

cross-examination was “beyond reason”). 

In my view, the district court’s time limitation on Walker’s cross-examination

of W.F. was both arbitrary and disproportionate to the purpose it was designed to

serve. On this record, the restriction was arbitrary because there was no reasonable

explanation for it. Cf. United States v. Bordeaux, 400 F.3d 548, 558 (8th Cir. 2005)

(explaining that a district court’s exclusion of evidence was not “arbitrary because

there exists a reasonable explanation for it—the prevention of harassment or

embarrassment of [the witness]”). There was no claim that W.F. would have been

harassed had Walker’s counsel been permitted to continue his proposed crossexamination. Nor was there a claim that the testimony that defense counsel sought

to elicit would be unduly prejudicial or confuse the issues. Finally, there was no

claimthat the contents of the cross-examination were only “marginally relevant.” To

the contrary, as Walker argued before the district court and reiterates on appeal, his

primary defense—that he believed W.F. was an adult and that they were merely

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acting out a fantasy—largely depended on his ability to demonstrate to the jury the

lengthy history and full nature of his communications with W.F.

Rather, the sole interest that the district court articulated was in “efficiency.” 

It determined that Walker’s right to cross-examination should be abridged because

his method of presenting his defense was “not efficient,” and because continued

discussion about the messages that Walker exchanged with W.F. was “very

cumulative” and would purportedly contravene “[t]he typical rule of thumb . . . that

cross is not to exceed the time allotted for direct.” As a general proposition,

efficiency is a legitimate interest of the criminal trial process. And preventing undue

delay and curtailing testimony that is unnecessarily lengthy can serve that interest. 

But under the facts of this case, there was no efficiency to be gained. Walker sought,

at most, a total of two hours and ten minutes for cross-examining W.F.—the

government’s key witness—and there is no indication that the trial would have been

unnecessarily lengthened had the district court permitted Walker’s desired

cross-examination. See Holley v. Yarborough, 568 F.3d 1091, 1100 (9th Cir. 2009)

(concluding that excluding testimony based in part on time constraints was

unreasonable because it was unlikely that admitting the testimony “would have

significantly lengthened the trial”). Moreover, it cannot be that a defendant’s Sixth

Amendment right to cross-examine the principal witness against him should be

curtailed based on the prosecution’s strategic decision regarding the length of its

direct examination. Under the particular circumstances of this case, I believe that the

restriction based on time constraints was arbitrary. 

The district court’s time restriction on W.F.’s cross-examination was also

disproportionate to the interest that it allegedly served. It is critical here that W.F.

was the “central, indeed crucial,” witness in the prosecution’s case. Olden, 488 U.S.

at 233. And it is likewise critical that the length and mode of cross-examining W.F.

was part and parcel of Walker’s defense. Because the government focused on only

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a handful of text messages to show that Walker knew W.F. was a minor, Walker

sought to highlight the entirety of his messaging with W.F. to attempt to show that

the communications were “role-play fantasy and also to discount the claim of

exploitation.” Moreover, by cross-examining W.F. about all the messages, Walker

sought, in part, to “attempt[] to familiarize the jury with what for them was a bizarre

existence.” To that end, the fact that the cross-examination of W.F. seemed “very

cumulative,” as the district court concluded, was precisely the point. “[I]t was this

accumulation of history,” as Walker explains, “that established the texture of

Walker’s defense that he was living a fantasy.” In light of how important it was for

Walker to cross-examine W.F. regarding the fullmessaging history and the veryweak

interest in efficiency in this case, the district court’s time restriction was disproportionate to the purpose it was designed to serve. Cf. Bordeaux, 400 F.3d at 559

(concluding that exclusion was not disproportionate “[i]n light of the minimal

probative value of the evidence and the important purpose of the exclusion”—the

prevention of witness harassment). In short, I believe that the time limitation on

Walker’s cross-examination of W.F. violated Walker’s Sixth Amendment right of

confrontation.

II

“All errors of constitutional dimension do not automatically call for reversal,”

however. United States v. Jacobs, 97 F.3d 275, 283 (8th Cir. 1996). Confrontation

Clause errors are subject to harmless-error review. See Delaware v. Van Arsdall, 475

U.S. 673, 684 (1986). This inquiry requires us to “assum[e] that the damaging

potential of the cross-examination [was] fully realized,” and determine if we “might

nonetheless say that the error was harmless beyond a reasonable doubt.” Id.; see also

United States v. Caldwell, 88 F.3d 522, 525 (8th Cir. 1996). Harmlessness is

determined “in the context of the trial as a whole,” Caldwell, 88 F.3d at 524, and we

consider “the importance ofthe witness’ testimony in the prosecution’s case, whether

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the testimony was cumulative, the presence or absence of evidence corroborating or

contradicting the testimony of the witness on material points, the extent of

cross-examination otherwise permitted, and, of course, the overall strength of the

prosecution’s case.” Van Arsdall, 475 U.S. at 684.

As a practical matter, the harmless-error inquiry in this case presents some

analytical difficulty. Generally speaking, in the Van Arsdall line of cases, courts

review for harmless error a district court’s limitation on cross-examination intended

to impeach a witness’s credibility. See, e.g., United States v. Love, 329 F.3d 981,

985–86 (8th Cir. 2003); Caldwell, 88 F.3d at 524–25. In such circumstances, courts

often “disregard” the entirety of the testimony that defense counsel was not permitted

to impeach to determine if the Confrontation Clause error was harmless. See, e.g.,

Love, 329 F.3d at 986 (concluding that error was not harmless in part because if the

witness’s testimony was disregarded, “the government [was] left with less than

overwhelming evidence of [defendant]’s guilt”); Caldwell, 88 F.3d at 525 (concluding that Confrontation Clause violation was harmless because, “even if we entirely

disregard [the witness’s]testimony, the government’s case against [the defendant] . . .

was strong”).

In this case, Walker’s proposed cross-examination did not seek to attackW.F.’s

credibility per se, so this traditional harmless-error analysis is an imperfect fit. And

if we do not disregard W.F.’s testimony as would be required by this analysis, it is

difficult, as a conceptual matter, to “assum[e] that the damaging potential of the

cross-examination [was] fully realized.” Van Arsdall, 475 U.S. at 684. Nevertheless,

guided by the Van Arsdall factors—especially “the presence or absence of evidence

corroborating or contradicting the testimony of the witness on material points, the

extent of cross-examination otherwise permitted, and . . . the overall strength of the

prosecution’s case”—I conclude that the district court’s error was harmless. Walker

testified about his belief that he was acting out a fantasy and discussed the contents

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of a website containing “source material” for fantasies that he played out with others. 

Moreover, albeit in a more limited fashion, Walker was ultimately permitted to crossexamine W.F. about many of the messages he exchanged with Walker, especially

those that W.F. initiated. Finally, and perhaps most fundamentally, the government’s

case against Walker was strong. The jury was presented with Walker’s own

statements that W.F. was “underage and [could] get [him] in trouble,” and with

evidence that Walker asked W.F. to send him pornographic images. See Caldwell,

88 F.3d at 525 (defendant’s own inculpatory statements contributed to strength of

government’s case, precluding reversal on harmless-errorreview); see also supra Part

I.D (finding that evidence was sufficient to convict Walker). As such, although I am

troubled by the Sixth Amendment violation that occurred in this case, I am ultimately

persuaded that the error was harmless and agree that the judgment of the district court

should be affirmed. I thus concur in the court’s opinion except for Part I.B.

______________________________

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