NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 17a0241n.06
Case No. 16-6162
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. KEVIN LABONA, Defendant-Appellant. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY

BEFORE: GIBBONS, COOK, a nd GRIFFIN, Circuit Judges. COOK, Circuit Judge. Defenda nt Kevin Labona a ppeals his conviction and sentence for possessing and distributing child pornography. We AFFIRM.
I. Background Facts

. In December 2012, Labona walked into the FBI’s Lexington, Kentucky, office to report that someone had em ailed child pornography to his cellular phone. During his meeting with Special Agent Kimber ly Kidd, Labona showed her the images and offered to join a sting operation to capture th e perpetrators. Agent Kidd declined Labona’s proposal and instead informed him that she needed to conf iscate the phone. He acquiesced, signing a consent form that permitted the FBI to s earch and analyze the phone’s stored data. Once Labona left the office, Agent Kidd performed a forensic examination of the phone’s memory disk and discovered “approximately 50 im ages of child pornography.” After discussingCase No. 16-6162, United States v. Labona

- 2 - the photos with an Assistant United States Attorney (“AUSA”), Agent Kidd and the AUSA agreed not to prosecute Labona because “he wa s homeless, and . . . voluntarily brought this information in to [the government].” At no point did they relay th eir decision to Labona. They reversed course on their non-pros ecution decision when an undercover FBI agent (who was posing as a child pornographer in a sting operation) tipped them off to Labona’s suspicious activities. Over a two-week peri od in October 2013, Labona emailed explicit photos of young girls to the agent, soli cited him to respond in kind, a nd provided advice on “grooming,” a technique whereby a child molester manipulates a minor into a sexual relationship. After tracing Labona’s location to Lexington, the agent handed over the ev idence to Agent Kidd. Agent Kidd and the AUSA promptly opened an investigation into Labona’s activities, and by October 2014, they had obtained a grand-jury indictment and an arrest warrant. They then learned from Labona’s ex-wife that he ofte n stayed with “Jane Doe,” a longtime friend, in Logan County, Ohio. With the local sheriff’s he lp, they tracked Labona down and arrested him as he was walking with a seven-year-old girl outside the Doe family’s trailer. Procedural Facts . The government charged Labona with one count of possessing child pornography, in violation of 18 U.S.C. § 2252(a) (4)(b), for the images Agent Kidd found on his phone, and two counts of “distribut[ing] visual depi ctions . . . of a mino r engaging in sexually explicit conduct,” in violation of 18 U.S.C. § 2252(a)(2), for the emails he sent to the undercover agent. Labona waived his right to a jury trial. The district court found Labona guilty on all three counts in th e ensuing bench trial. It sentenced him to 240 months’ imprisonment for possession of child pornography and 480 months’ imprisonment for each count of distri bution of child pornography, all to be served concurrently. Labona timely appeal ed his conviction and sentence.Case No. 16-6162, United States v. Labona

- 3 - II. Labona contends that the district court s hould have dismissed the charge of possessing child pornography because “the FBI . . . promise[d] not to prosecute [him]” for the images found on his phone. But since the FBI in fact made no such promise, Labona’s informal-immunity claim fails. “An agreement not to prosecute is contract ual in nature, and subject to contract law standards.” United States v. Fitch , 964 F.2d 571, 574 (6th Cir. 1992) (citing United States v.
Brown , 801 F.2d 352, 354 (8th Cir. 1986)). Labona must therefore prove that in exchange for giving up his phone, the government made a written or oral promise not to prosecute him. See Rowe v. Griffin , 676 F.2d 524, 527–28 (11th Cir. 1982) (requ iring that the government honor a promise of immunity when “(1) an agreement was made ; (2) the defendant has performed on his side; and (3) the subsequent prosecution is direc tly related to offenses in which the defendant, pursuant to the agreement, either assisted with the investigation or testified for the government” (emphasis added)); see also United States v. Turner , 936 F.2d 221, 223 (6th Cir. 1991) (“[I]nformal immunity arises by way of assurances [from] prosecutors, either orally or by letter, to a potential grand jury witness that he wi ll be immune from any prosecution based on [his] testimony.”). Labona argues for the first tim e on appeal that the government violated the terms of an informal-immunity agreement. We theref ore review his claim for plain error. Cf. United States
v. Barnes , 278 F.3d 644, 646 (6th Cir. 2002) (applying pl ain-error analysis to a plea-agreement challenge first raised on appeal). To succeed on pl ain-error review, Labona must show a plain or obvious error that affects his substantial rights a nd seriously affects the fairness, integrity, or public reputation of his judicial proceedings. Id. (citation omitted).Case No. 16-6162, United States v. Labona

- 4 - In his appellate brief, Labona cites tes timony that Agent Kidd and the AUSA decided— outside of Labona’s presence—that they “woul d not prosecute him fo r [the pornography on his phone].” He then asserts, without any factua l support, that the govern ment “conveyed” this decision to him in exchange fo r his relinquishing the phone. The timeline of events refutes Labona’s assert ion of an immunity agreement. Agent Kidd and the AUSA decided not to prosecute Labona after he had already turn ed over the phone and left the office. Agent Kidd therefore could not have offered the “immunity” that Labona claims, which did not exist at the time she confiscated his phone. Moreover, Agent Kidd testified that Labona agreed to give up his phone because sh e “told [him], that since [she] knew his phone contained child pornography, [she] w ould not be able to let him leav e with it.” In short, the record reveals no government action sugges ting a promise not to prosecute Labona. Perhaps realizing the futility of his argument, Labona changes tack, insisting that under United States v. Streebing , 987 F.2d 368 (6th Cir. 1993), he n eed not prove that “the [nonprosecution] decision . . . be given or c onveyed to the defendant.” Labona misreads Streebing

. In that case, the record was unclear about wh ether the government had promised the defendant immunity. Id. at 371. This court therefore assumed, onl y for the sake of argument, that the government had made a promise so we could analyze whether to hold it to its bargain. Id. at 371–73. Streebing therefore offers no support for Labona’s position. 1 Because he cannot establish that the gove rnment communicated any commitment or assurance not to prosecute him, we find no error, plain or otherwise.

1 Labona also relies on two out-of-circuit cas es, but the facts in each show that the government had conveyed a promise to the defendant. United States v. Kettering , 861 F.2d 675, 676–77 (11th Cir. 1988); Johnson v. Lumpkin , 769 F.2d 630, 633 (9th Cir. 1985).Case No. 16-6162, United States v. Labona

- 5 - III. Labona also challenges the district court’s admission of Minor A’s testimony about Labona’s prior acts of molestati on, arguing that the testimony’s unfair prej udice outweighed its probative value. See Fed. R. Evid. 403. Additionally, Labona asserts that the court’s allegedly erroneous pretrial evidentiary ruli ng induced him to waive his right to a jury trial. We find no merit to either claim. We review a district court’s evidenti ary rulings for abuse of discretion. United States v. Seymour , 468 F.3d 378, 386 (6th Cir. 2006) (citing United States v. Talley , 164 F.3d 989, 998 (6th Cir. 1999)). A court abuses its discretion “when [it] relies on clearly erroneous findings of fact, improperly applies the law, or employs an err oneous legal standard, . . . or . . . when we are left with a definite and firm conviction that [it] committed a clear error of judgment.” United
States v. Miner , 774 F.3d 336, 348 (6th Ci r. 2014) (internal quotati on marks and citations omitted). Before trial, the government notified Labona th at it intended to introduce the testimony of Minors A, B, C, and D as evidence of Labona’s prior acts of molestation. Labona moved to exclude the evidence, but the district court decl ared it admissible under Federal Rule of Evidence 414, which permits the prosecution to introduce a defendant’s prior acts of child molestation when relevant to a ch ild-pornography case. See Fed. R. Evid. 414(a), (d)(2)(B). The court’s evidentiary order also applied a Rule 403 analysis to the proposed testimony. 2 Although it acknowledged the danger of prejudi ce given that the crime of possessing child pornography, unlike molestation, does not necessa rily entail “dir ect physical contact with a

2 Labona also contends that the district c ourt erred under Federal Rule of Evidence 414 but fails to develop this argument. He therefore waives his Rule 414 challenge. United States v. Layne , 192 F.3d 556, 566–67 (6th Cir. 1999) (“[I]ssues a dverted to in a perfunctory manner . . . are deemed waived.”) (citation and internal quotation marks omitted).Case No. 16-6162, United States v. Labona

- 6 - minor,” the court held that the probative valu e of the minors’ proposed statements outweighed the prejudicial effect unde r the factors described in United States v. LeMay , 260 F.3d 1018, 1027–28 (9th Cir. 2001). It found Labona’s past molestation similar to the charged conduct (especially since both involved si milarly aged girls); close in time to the incidents of possession and distribution; frequent e nough to suggest a “pattern of behavior”; unaffected by any intervening circumstances; and “practically necessa ry” to prove mens rea because “Labona [would likely] assert he did not intend to perform the criminal acts alleged.” See id. After the court’s ruling, Labona waived his right to a jury. At trial, the court reversed its pretrial evidentiary ruling once it heard Minor A’s testimony. It noted that aside fr om statements about Labona’s nickname (which tied him to the email account from which he contacted the und ercover agent) and his showing pornography to Minor A, it would disregard the remarks about mo lestation because of th eir limited relevance to the possession or distribution char ges. The district court also urged the prosecution to withhold the remaining minors’ testimony. Although Labona contends that Minor A’s tr ial testimony was inadmissible due to its prejudicial nature and “weak” probative value, courts worry less about prejudicial effects in bench trials. See United States v. Hall , No. 98-6421, 2000 WL 32010, at *2 (6th Cir. Jan. 4, 2000) (per curiam) (“In bench tr ials, the application of the un fair prejudice portion of Rule 403 has been seen as an unnecessary and ‘useless pr ocedure.’” (citing 22 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure § 5213 (1978 & Supp. 1999))); see also Gulf States Utils. Co. v. Ecodyne Corp. , 635 F.2d 517, 519 (5th Cir. 1981) (finding that the unfair prejudice portion of Rule 403 “has no logical application to bench trials”). Additionally,Case No. 16-6162, United States v. Labona

- 7 - the court further minimized any prejudice when it disregarded Minor A’s statements about molestation. As for Labona’s argument that the court’s pr etrial decision to admit the testimony of Minors A–D improperly induced his jury-trial waiver, Labona again shows no error. The district court acted within its discretion when it decide d before trial to admit the evidence under Rule 403, reasoning that Labona would likely raise the defense that “he did not intend to perform the criminal acts alleged.” At trial, the court left op en the possibility of letting the minors testify if Labona in fact raised that defense, even as th e court urged the prosecutor to otherwise withhold the testimonial evidence (whi ch the prosecutor did). Moreover, a court is well within its discretion to reverse a pretrial evidentiary ruling to account for the changing dynamics of a trial. See United States v. Hurd , No. 92-5988, 1993 WL 389944, at *3 (6th Cir. Oct. 1, 1993) (per curiam) (“Under Sixth Circuit pr ecedent, a ruling on a motion in limine is no more than a preliminary, or advi sory, opinion which falls entirely within the discretion of the district court. The trial court is permitted to change its ruling during the trial.” (citing United States v. Luce , 713 F.2d 1236, 1239 (6th Cir. 1983))). And because he knowingly, voluntarily, and intelligently waived his right to a jury trial, Labona must accept the benefits and risks of his choice, including the possibility that the district court would later change its pretrial evidentiary ruling. We thus find that the district court did not abuse its discretion.
IV. Finally, Labona challenges his 480-month se ntence—effectively a life sentence given his age—as substantively unreasonable because the di strict court gave “too much weight to the allegations of [his] alleged misconduct involving Mi nor[s] A, B, C and D.” But considering theCase No. 16-6162, United States v. Labona

- 8 - district court’s desire to protect the public, th e seriousness of his crimes, his recent history of molesting children, and the lack of mitigating circumstances, Labona has not demonstrated any unreasonableness. We review a district cour t’s sentencing determination for substantive reasonableness “under a deferential abuse- of-discretion standard.” United States v. Dudeck , 657 F.3d 424, 431 (6th Cir. 2011) (quoting Gall v. United States , 552 U.S. 38, 41 (2007)). “[A] sentence may be substantively unreasonable where the district c ourt selects the sentence arbitrarily, bases the sentence on impermissible factors, fails to cons ider pertinent [18 U.S.C.] § 3553(a) factors, or gives an unreasonable amount of wei ght to any pertin ent factor.” United States v. Sedore , 512 F.3d 819, 823 (6th Cir. 2008) (quoting United States v. Liou , 491 F.3d 334, 337 (6th Cir. 2007)). Here, Labona claims that the court placed too much weight on allegations of molestation, but does not specify which § 3553(a) fact ors this affects. In applying the § 3553(a) factors, the dist rict court found that his child pornography possession constituted “one of the mo st serious [it had] seen.” It noted that Labona’s possession and viewing of child pornography, itself a “serious crime [that] does a lot of harm,” went beyond a single incident of misconduct. Rather, it made up one part of a longstanding pattern of acting out the sexual abuse depicted in the images he collected. In 1986, for example, he was convicted of taking “[i]ndecent [l]iberties” with his own si xteen-year-old daughter. And at the time of his arrest, officers caught him walking with a seven-y ear-old girl whom (inves tigators later learned) Labona had inappropriately touc hed and kissed on several occa sions; slept next to multiple times; showed child pornography; and attempted to lure into e ngaging in sexual acts. Labona perpetrated similar acts with thre e of the girl’s friends, all of wh om were less than twelve years old.Case No. 16-6162, United States v. Labona

- 9 - Labona made his behavior even more reprehensible by spinning a “web of deceit” to mask his wrongdoing. As the dist rict court discussed in the sentencing hearing, Labona took advantage of Jane Doe—a woman facing the ha rdships of poverty, the burden of raising a family, and a troubled marriage—by giving her mone y and “ingratiat[ing] himself . . . so he would have unfettered, unsupervised access to her ch ildren.” He also employed a ruse to hide his child pornography in plain si ght, telling the Doe family th at he worked as a government agent—under the supervision of Agent Kidd and the FBI, no le ss—catching pedophiles. So effective was his deception that he convinc ed Doe and her husband to thwart a federal investigation and obstruc t justice by destroying a second ce ll phone that contained more child pornography. Finally, the court highlighted Labona ’s brazen effort to shield himself from prosecution by pretending that the pornography on his phone “had been [f]oisted upon him with no effort on his own part.” The district court concluded that the depravity of Labona’s offense, his inability to control himself, his willingness to con anyone in “pursuing his interest in child sexual contact,” and the danger he presents to the public all warra nted the maximum sent ence allowable under federal law. See 18 U.S.C. § 2252(b)(1)–(2). We find the court’s sentence substantively reasonable and thus discer n no abuse of discretion.
V. We AFFIRM Labona’s c onviction and sentence.