1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 15a0096p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

U

NITED S TATES OF A MERICA , Plaintiff-Appellee ,

v

.

J AMES O. N APIER , Defendant-Appellant

. ┐ │ │ │ │ │ │ │ ┘ No. 14-3492

Appeal from the United St ates District Court for the Southern District of Ohio at Cincinnati. No. 1:13-cr-00016—Susan J. Dlott, District Judge. Argued: April 28, 2015 Decided and Filed: May 20, 2015 Before: CLAY, KETHLEDGE, and DONALD, Circuit Judges.

_________________ COUNSEL

ARGUED: Kevin M. Schad, OFFICE OF THE FE DERAL PUBLIC DEFENDER, Cincinnati, Ohio, for Appellant. Benjamin C. Gla ssman, UNITED STATES ATTORNEY’S OFFICE, Cincinnati, Ohio, for Appellee. ON BRIEF: Kevin M. Schad, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cincinnati, Ohio, for Appellant. Benj amin C. Glassman, UNITED STATES ATTORNEY’S OFFICE, Ci ncinnati, Ohio, for Appellee.

_________________ OPINION

_________________

BERNICE BOUIE DONAL D, Circuit Judge. A jury convicted James O. Napier of twelve counts of production, transportation, dist ribution, and receipt of child pornography. The charges against Napier stemmed from his sexua l molestation of an 11- month-old baby and a 9- year-old girl, which he filmed and then traded on the Internet with others who share child 

### >No. 14-3492 United States v. Napier Page 2

pornography. Napier now appeals, asserting four distinct argument s: (1) the district court erred in denying his motion to dismiss the indictme nt, which was based on alleged prosecutorial misconduct; (2) the district court erred in denying his motion for judgment of acquittal, because the government failed to prove an interstate commerce connect ion for all twelve counts of conviction; (3) the district cour t erred in admitting at trial —over Napier’s ob jections—various
electronic devices as exhibits that included markings indicating the devices were manufactured
outside of the United States and a document obt ained from Time Warner Cable Company; and (4) the district court erred in denying his moti on to vacate his conviction on the distribution-ofchild-pornography charge, which was allegedly afflicted by a “f atal” variance and violated Napier’s due process rights. We AFFIRM the district court in all respects.

I.

A.
James O. Napier (“Napier”) met Laura Schiel e (“Schiele”) when she was 19 years old. Napier was over thirty at that time and, according to Schiele, went by the nicknames “J-Kid” and “Kid.” Napier and Schiele be gan dating and soon moved in t ogether. In November 2008, the couple moved into an apartment on Sunset Avenue in Cincinnati, Ohio.
Napier and Schiele each had their own computer s. Schiele used an Acer computer while Napier used a computer tower that he got from his job. Schiele was awar e that Napier used his computer to, among other things, look at “regul ar” pornography. Schiele also was aware that Napier had a foot fetish.

On November 9, 2009, Schiele’ s sister, Jennifer, called and asked Schiele to babysit her 11-month-old daughter (“Victim 1” ). Schiele was unable to look after her niece, so she told Jennifer to call Napier to ask him to babysit un til Schiele got off from work. Alone with his girlfriend’s niece that morning, Napier raped th e child and recorded the abuse in photographs
and a video.
Napier traded this video with other child pornographers via email. For instance, using the moniker “Kid James” and the email address jo napier1992@gmail.com, Napier referred to this video as his “anal baby rape video. ” When one of these trading partners informed Napier that heNo. 14-3492 United States v. Napier Page 3

had already received this video from anothe r child pornographer calle d “Cyanide,” Napier responded: “[T]hat’s funny! I made this video myself and traded it with [C]yanide. [S]he’s not two years old she’s only one years old, but she was only 6 months wh en I filmed her. [I] don’t know why [C]yanide listed her at 2 years old[.]” Another of Napi er’s trading partners wanted more pictures and videos of Vict im 1 and also wanted to rape her himself. Over the course of several emails, Napier responded that he had made the video himself; had taken the photographs himself; and had traded the video “with a few peopl e.” Napier also repeatedly expressed that he was having difficulty making a new video because he “can’t get [Victim 1] alone long enough to take new pics or make another movie yet.”
One of the people with whom Napier sought to trade child pornography turned out to be FBI Special Agent Deidre Gotjen (“Agent Gotje n”), who was located in Phoenix, Arizona. Agent Gotjen is currently assigned to the P ublic Corruption Squad, wh ere she works on cases involving violent crimes against children and humantrafficking. As part of the Innocent Images National Initiative, Agent Gotjen worked to “comb at the sexual exploitation of children on the [I]nternet.” In the summer of 2010, Agent Gotjen received a tip that the website “EuroDisc” was advertising the sale of child pornography. She expl ored the website and verified that it offered child pornography, either for free or for sale. EuroDisc also included a link called “Guestbook,”
which “allowed . . . individuals who were on the site to co mmunicate with one another.” Guestbook “recorded the date, name, time, and of tentimes the e-mail address of the individual posting so that they could be contacted offline. ” In one Guestbook post in July 2010, a person posted the following message: “looking to TRADE vi deos and pics. [I] have nearly 100 videos and thousands of pics. [G]irls and boys a ll ages. [O]nly serious TRADERS reply. jonapier1992@gmail.com[.]” In other July 2010 postings advertis ing this email address, the poster identified himself as “Kid” and re iterated his intere st in trading.
Using an assumed email address, Agent Gotjen emailed jonapier1992@gmail.com to say she was “serious” about trading. “Kid James” emailed in response, “[Y]es! [L]et’s TRADE! [W]hat do you like?” After some back and fort h, Agent Gotjen received an email from “Kid James” with a video file attached. The video, entitled “47.wmv,” was a compilation of moviesNo. 14-3492 United States v. Napier Page 4

depicting the sexual abuse of minors. Agent Gotje n sent back a corrupted video file; when “Kid James” realized he could not open the file, his communications withAgent Gotjen ended.
Agent Gotjen sought to determine jona pier1992@gmail.com’s identity, first by subpoenaing Google (from whom she learned that jonapier1992’s IP address was being accessed through Cincinnati Bell) and then by subpoenaing Cinc innati Bell (which led to a dead end). She then searched Google for the email address and varia tions thereof. This qu ery led her to profiles on the websites FootFetishTube.com, AdultSpace.com, MySpace.com, Facebook.com, and Reunion.com. From these profiles, Agent Gotje n learned that jonapi er1992 was most likely a 36-year-old man living in Cincinnati named Jame s O. Napier. Agent Gotjen ultimately obtained Napier’s license photo from the Ohio Bureau of Motor Vehicles, which matched photos from the websites she had searched on the Internet. Agen t Gotjen then packaged up her work and sent it
to the FBI’s Cincinnati office.
Meanwhile, Napier continued living with Sc hiele while trading online with other child pornographers. For instance, in February 2011, he se nt a number of videos w ith sexually explicit titles—including one entitled “6 months ol d.wmv”—to someone with the email address “mynothing13@yahoo.uk.” In return, Napier aske d, “Do you have any younger girls? (Very young?) (The younger the better!).”
Napier and Schiele broke up around March 2012. When he m oved out of their apartment on Sunset Avenue, he took his computer tower w ith him and Schiele kept her Acer computer. Napier promptly moved into the home of Candace Allen (“Allen”), the moth er of his 6-year-old son. Also living in the home were Allen’s two ot her children by a different father, a 7-year-old boy and an 8-year-old girl (“Victim 2”).
Shortly after Victim 2’s ninth birthday, Napi er began sexually abusing her and recording
it. The details are horrific. Victim 2 identified he rself as 9 years old in se veral of the videos. On November 23, 2012, Napier emailed a fellow child pornographer who ha d earlier expressed interest in trading full-length videos. Napier responded, “Sure[,] we can begin trading immediately[.] I just [sic] me a chubby 9yo[,] we’ve been havi ng lots of fun[.]”No. 14-3492 United States v. Napier Page 5

By this time, agents at the FBI’s Cinci nnati office had determined—after subpoenaing Time Warner Cable—that the person emailing with Agent Gotjen from jonapier1992@gmail.com had likely done so using an IP address accessed fr om an apartment on Sunset Avenue. Neither Napier nor Schiele still lived at this a ddress. The apartment manager, however, provided agents with a fo rwarding address, at which the agents were able to locate Schiele. After meeting with agents, Schiele gave them her Acer computer. Special Agent Eric Proudfoot (“Agent Proudfoot”) submi tted the computer to forensic analyst Skip Burnham, asking him to “examine the computer for the pres ence of any images of child pornography, any references to the text string jonapier1992@gmail.com, and any text references to a particular file
called 47.wmv.”

Burnham found these references on the Acer co mputer. Burnham also found that several sequentially numbered photos take n with a Polaroid camera were missing from among the larger images on the computer. These images had been de leted, but traces of the images were left as thumbnails accessible to the computer’s operating system. Burnham was able to recover the missing photos among the thumbnail images. The photos were of “a small child, an infant[,]” with an erect penis close to her mouth. Bur nham reported his findings to Agent Proudfoot, who in turn again met with Schiele. Schiele identifi ed the child as her niece. The agents then sought an arrest warrant for Napier and a search warrant for the jonapier1992@gmail.com email

account.
The FBI arrested Napier on January 18, 2013. During his arrest, Napier had on his person two cellphones and a microSD memory car d. These items, Napier’s tower computer (which Allen provided to authorities), and th e email account from Google were submitted for complete forensic analysis.
During a search of the Gmail account, Bur nham found large photographs of Schiele’s
niece that matched the thumbnails on the Acer co mputer. He also found the video that Napier had made of himself abusing Victim 1; the vide o “was titled three di fferent ways: 64.wmv, sixmonth-old.wmv, and movie two-y ear-old girl self-made.wmv.” The account included a great deal of email correspondence between Napier a nd other child pornographers about trading childNo. 14-3492 United States v. Napier Page 6

pornography. It also included more than a dozenemails that Napier sent to himself, each attaching a video file that documente d his sexual abuse of Victim 2.
The computer tower also held images matching those of the Acer thumbnails and the Gmail account, depicting Napier’s abuse of Vict im 1. Recovered fromthe microSD memory
card was a reference to the video file “6 months old.wmv.” One of the cellphones that Napier was carrying when he was arrest ed held photos matching those th at Agent Gotjen had found in the AdultSpace.com profile for jonapier1992@gmail. com. The other cellphone used that address in its email inbox, and the phone contained a video, duplicative of one that Napier had emailed to himself in the Gmail account, depicti ng Napier’s abuse of Victim 2.

B.
According to a subsequent order of the dist rict court, the following transpired next:
During his initial appearance in U.S. District Court [on the day of his arrest, January 18, 2013], Napier was a ppointed a Federal Public Defender. Napier was detained without bond and held in the custody of the United States Marshal’s Service (USMS), which housed him at the Boone County Jail in Burlington, Kentucky. On February 6, 2013, the Government obtained the [original] indictment against Napier, which charged him with [twenty-three] counts including the production, distri bution, and receipt of child pornography. In the meantime, on February 1, 2013, the Assistant United States Attorney (AUSA) assigned to Napier’s case contacted Cincinnati Police Detective (CPD) Kelly Best, Personal Crimes Unit, first by email and then by telephone. On that date, the Cincinnati Police Department opened an investigation of Napier based on the alleged conduct underlying the production of child pornography counts in the Government’s case. This resu lted in criminal complaints being filed against Napier in Hamilton County, Ohio, on February 6, 2013. These complaints charged five counts of sexual conduct by Na pier related to two minor victims and relate to the conduct charged in the origin al federal indictment at counts 1, 4, 7, 11, and 18. Also on February 6, 2013, the AUSA assigned to Napier’s case met with the CPD detective and they discussed th at the CPD detective would interview Napier. The AUSA then requested that Napier be moved from the Boone County Jail to the Hamilton County Justice Cent er. Napier was so transported the morning of February 7, 2013. Napier’s atto rney was not notified of the request to transfer or the transfer itself. Upon Napier’s arrival at the Hamilton County Justice Center, he was almost immediately brought to an interv iew room where he was met by two CPDNo. 14-3492 United States v. Napier Page 7

detectives, who conducted an approximatel y hour and a half interview of Napier. During the course of the interview, Napier requested an attorney approximately seventeen times. Regardless, the officers c ontinued to interview him. As a result, Napier made inculpatory statements to the detectives. After the interview, Napier was m oved to a cell in the Hamilton County Justice Center where he st ayed until the next morning, February 8, 2013. On that date, he was removed from his cell a nd brought to a Hamilton County courtroom for a “bond hearing.” However, at the time, Napier was in federal custody, and no writ was obtained from either a state or federal judge in order to secure Napier’s appearance for the hearing. Napier was assigned a Hamilton County Public Defender on the morning of February 8, 2013, but that attorney had just a few minutes to meet with Napier be fore his “bond hearing” and tried unsuccessfully to waive Napier’s appearan ce in court that morning, where media appeared with television cameras. Af ter the “bond hearing,” Napier was moved to a new cell where two investigator s from the Hamilton County Children’s Services arrived to interview him. It was during that interview that the Federal Public Defender learned of the situation and went to the Hamilton County Justice Center to stop the interview. On February 15, 2013, the Government advised Napier’s Federal Public Defender that CPD detectives had inte rviewed Napier on February 7, 2013 and provided an audio recording of the inte rview. The Government subsequently notified Napier that it may use the conten ts of his inculpatory statements to the officers during the Governme nt’s rebuttal at trial. On October 11, 2013, Napier file d a motion to sever the counts against him and three separate motions to dismiss the indictment. 1 Relevant to this appeal is Napier’s motion to
dismiss the indictment based on the above-recounted facts. Specifically, Na pier argued that the above-recounted series of events, “orchestra ted by the government,” “caused a substantial violation of his right to due pr ocess of law under the Fifth Amen dment and his right to counsel under the Sixth Amendment” and “violated concep ts of fundamental fairness and was shocking to the universal sense of justice.” The gove rnment responded in opposition on October 25, 2013,
and the district court held a hearing on Napier’s allegations on November 12, 2013. The parties subsequently filed supplemental briefs.

1 Napier moved the court to sever the trial of the counts associated with his abuse of Victim 2. He also moved to: (1) dismiss the indictment for violation of the Speedy Trial Act; (2) dismiss the counts charging him with production of child pornography on the theory that (a) the statute criminalizing that offense was beyond Congress’ power under the Commerce Clause and (b) the statute was unconstitutionally vague and overbroad; and (3) dismiss the indictment on the ground that the transfer of his place of pretrial detention, intervie w by local police, and “bond hearing” in state court amounted to a “shockin g violation of the universal sense of justice.”No. 14-3492 United States v. Napier Page 8

On January 3, 2014, the district court denied Napier’s motion to dismiss. The court first
found:
Napier does not cite to any cases with facts remotely analogous to those here, and the Court cannot conclude based on the pr ecedent before it that the government’s conduct in this case—that is, as Defendant desc ribes it, “intentionally participat[ing] in unlawfully transferri ng Mr. Napier out of federal custody and into state custody, interrogating Mr. Napi er without counsel in a willful and egregious violation of Miranda and the Sixth Amendment, permitting Mr. Napier to appear at a state court hearing without obtaining th e issuance of a writ from this Court or any state court judge , and parading him in front of the media circus that was occurring at the time surrounding this case”—rises to the level of conduct that warrants a dismissal of an indictment.
The district court found, however, that “the AUS A instituted Napier’s transfer to Hamilton County so that CPD detectives could intervie w him and did not advise Napier’s appointed attorney of this transfer,” a nd that the AUSA’s actions “demonstr ate[d] poor judgment . . . as it was certainly foreseeable that an interrogation would take place.” The district court further remarked “that the interview by CPD detectives , the public ‘bond hearing’ in Hamilton County Court, and the attempted interview by Hamilton County Children’s Servi ces all occurred while Napier was in federal custody is astonishi ng, perplexing, and clearly inappropriate.”

The district court concluded that the AUSA’s actions did not amount to a Fifth
Amendment Due Process Clause violation be cause the AUSA “was not present during the interrogation during which CPD det ectives did not heed Napier’s requests for counsel, and she is not responsible for their conduct.” But, because the AUSA’s actions “laid the groundwork” for the CPD’s conduct, the district court ruled th at the appropriate remedy was to preclude the government’s use at trial of “a ny evidence obtained during thatFebruary 7, 2013 interview by the CPD detectives for any purpose[.]” The court also determined that this was a sufficient remedy for the alleged Sixth Amendment violation as well.
Napier was ultimately charged, in a twel ve-count superseding indictment filed on October 2, 2013, with nine counts of Production of Child Pornography, in violation of 18 U.S.C. § 2251(a) and (e); 2 one count of Transportation of Child Pornography, in violation of 18 U.S.C.

2 Count 1 related to Napier’s abuse of Victim 1 on November 9, 2009. Counts 2-9 related to Napier’s abuse of Victim 2 in August, September, and November of 2012.No. 14-3492 United States v. Napier Page 9

§ 2252(a)(1); and one count each of Distribution and Receipt of Child Pornography, in violation of 18 U.S.C. § 2252(a)(2).
Napier’s case proceeded to a four-day tr ial beginning on January 13, 2014. After the district court denied Napier’s motion for judgment of acquittal, the jury re turned guilty verdicts against Napier on all counts. On May 13, 2014, the di strict court sentenced Napier to a term of imprisonment of 2,880 months. This represente d 20 years on each of the counts to be served consecutively to one another, and was the sent ence recommended by the presentence report. The district court entered judgment on May 20, 2014. Napier filed a timely notice of appeal that same day.

II.
Napier’s central argument on appe al is that the district cour t erred in denying his pretrial motion to dismiss the indictment against him w ith prejudice as a sanction for the prosecutor’s alleged misconduct. The Supreme Court has recogni zed that the Due Process Clause of the Fifth Amendment may require reversal of a crimin al conviction where the governmental action
involved “shocks the conscience” and offe nds “canons of decency and fairness.” Rochin v. California , 342 U.S. 165, 169, 172 (1952). Similarly, the Supreme Court has indicated in dicta that outrageous government conduct outside the grand jury process can result in dismissal on due process grounds if such conduct is so outrageous that it violates “fundamental fairness” or is “shocking to the universal sense of justice.” United States v. Russell , 411 U.S. 423, 432 (1973);
see also United States v. Allen , 619 F.3d 518, 525 (6th Cir. 2010). This Court “reviews whether ‘outrageous government conduct’ is a valid basi s for dismissing an indictment—a question of
law—de novo

. ” United States v. Amawi , 695 F.3d 457, 483 (6th Cir. 2012) (quoting United
States v. Tucker , 28 F.3d 1420, 1421 n.1 (6th Cir. 1994)).
In the present case, the alleged government misconduct wa s the participation of one of the AUSAs in Napier’s improper transfer ou t federal custody and into state custody. By extension, Napier argues, the AUS A’s misconduct also includes the re sults of that transfer: the CPD’s alleged violation of Na pier’s right to counsel under the Sixth Amendment and under
Miranda when his repeated calls for counsel went unheeded.No. 14-3492 United States v. Napier Page 10

Without explicitly saying so, Napier appe ars to argue that the AUSA’s misconduct included not just initiating Napie r’s unlawful transfer into state custody, but also lying to the
lower court about her role in the transfer—or, at minimum, “obfusca ting” her role in the transfer. At Napier’s February 11, 2013 arraignment, counse l to Napier informed the magistrate judge of the transfer. The magistrate judge specifically asked, “[D] o you know anything about this?” The AUSA replied:
[AUSA]: Yes, Your Honor. He was erroneously taken to a state court proceeding. He has been in federal cust ody since the date of his arrest, which I believe was the 18th of January. So it was no fault of the [M]arshals, but he was erroneously taken to the state court proceeding without a writ. Once I was notified of that—and by the time I was notified of that, it was already too late—I contacte d the state prosecutor’s office and they’ve assured me that the appropriate paperwork and notation to his file is there so it won’t happen again. He is in federal custody and he will not be making any more state appearances without the appropriate paperwork, Your Honor. THE COURT: So he will be returned to Boone County? [AUSA]: Well, Your Honor, that’s—t hat is—he is in the [M]arshals’ custody. They have beds in Boone, Hamilton, and Butler, and quite honestly, Your Honor, I could care less where he’s housed. [DEFENSE COUNSEL]: I was actually told by the [M]arshals that he was transferred from Boone County to Hamilt on County at the request of the U.S. Attorney’s Office. So I don’t know. If the government’s in agreement with him going back to Boone County, that’s certainly what we’d like to have happened. Similarly, at a February 13, 2013 scheduling conf erence, the AUSA told the district court
that the state court “made a mist ake” in setting bond for Napier:
[AUSA]: They were not supposed to take him. He has been in federal custody since the 18th, and he should not have been taken to a st ate court, to any state court proceeding. So that was a mist ake that they made, and it will not be made again. He has since been moved to Boone County, I believe is what the [M]arshals told me, so it was their error. Subsequently, at the November 12, 2013 hearing on Napier’s motions to dismiss, defense
counsel read into the record a CPD investigation report. 3 The unspecified author of the report
averred:

3 The report was provided to Napier during discovery. The report itself is not part of the record.No. 14-3492 United States v. Napier Page 11

I met with [the AUSA] to view the video of Mr. Napier and [Victim 1]. . . . I also received a copy of the fede ral indictment detailing the 19 video clips Mr. Napier made of himself engaging in sex acts with [Victim 2]. . . . I spoke with [the AUSA] regarding the transfer of Mr. Napier to Hamilton County to simplify matters in regards to my interviewing him and executing a search warrant for his buccal swabs and photos. She will request the U.S. Marshals to transport him to the Hamilton County Justice Center on February 7, 2013. Thus, Napier claims, the import of the report is that the AUSA minimized her role in Napier’s transfer, if not outright lied to the magist rate judge and district court about it.
The government vehemently denies any misconduct by the AUSA. Specifically, the government contends that both state facilities, the Boone County Jail and the Hamilton County Justice Center, are under contract with the federal government to house federal pretrial detainees. Accordingly, the government argues, federal pretrial detainees like Napi er can be summarily moved between such facilities, and a state writ of ad prose quendum is only required when a federal defendant is taken from federal custody to a state proceeding. We need not resolve this dispute as to precisely when a writ is required in order to effectuate this ki nd of transfer. Even assuming Napier is correct, nothing in the record supports his assertion th at the charges against
him should have been dismissed.
First, the district court properly found, when issuing its order denying the motion to dismiss, that the AUSA had initiated the transfer. Thus, whatever “obfuscating” the AUSA may have done did not prevent the district court frommaking this factual finding in Napier’s favor. Further, if one accepts that the AUSA initiated th e transfer (and even assumes the AUSA lied to the court about it), Napier has not demonstrated that AUSA’s c onduct rises to the “outrageous,” “conscience shocking” level necessary to warra nt the extraordinary remedy of dismissing the charges against him with prejudice—as the district court determined. The district court properly found that even though it was “certainly foreseeable than an interrogation would take place” while Napier was in Hamilton County, the AUS A could not be held accountable for alleged constitutional violations committed by state agen ts and there was no record evidence that she personally participated in these alleged violations. Further, Napier cites no authority for the proposition that a federal prosecutor can be held accountable for the misconduct of state agents, even when the prosecutor “la[ys ] the groundwork” for that misconduc t. Napier also has cited noNo. 14-3492 United States v. Napier Page 12

authority for the proposition that such attenuate d misconduct should result in the dismissal with prejudice of previously instituted criminal charges. The AUSA’s own conduct—facilitating a transfer that may or may not have required a state writ of ad prosequendum, not notifying Napier’s court-appointed counsel about the transfer, and allege dly lying to the court about it— was inappropriate, but it wa s not “conscience shocking.” See Breithaupt v. Abram , 352 U.S. 432, 435 (1957) (reiterating that co nduct “shocks the conscience” wh ere it is “so ‘brutal’ and ‘offensive’ that it did not comport with trad itional ideas of fair play and decency”) (citing
Rochin , 342 U.S. at 174); see also Whitley v. Albers , 475 U.S. 312, 327 (1986) (same).
Second, even though the district court did not find either a Fifth or Sixth Amendment violation, the court still took appropriate steps to sanction the “poor judgment on the part of the
AUSA.” 4 That sanction amounted to suppression of all evidence obtained by the CPD during Napier’s February 7, 2013 interview. Suppression, not dismissal of charges with prejudice, is the remedy traditionally employed by courts to co rrect and deter the misconduct of government agents. See, e.g. , Massiah v. United States , 377 U.S. 201 (1964).
Indeed, the remedy fashioned by the district court actually went further than the law requires. Supreme Court precedent establishes that when an inculpatory statement is obtained in violation of the Sixth Amendment, it may not be used as part of the go vernment’s substantive evidence at trial, but may be used to impeach a defendant’s false or inconsistent testimony. See Michigan v. Harvey , 494 U.S. 344, 345-46 (1990). Here, the district court not only precluded the government from using Napier’s statements as substantive evidence, but also as impeachment evidence. This remedy was particularly apropos in light of the government’s earlier i ndication to Napier that it would potentially use the contents of his inculpatory statements to the CPD officers during its rebuttal at tria l. Suppression of this evidence thus eliminated the “s ubstantial threat” of prejudice that Napier complained about in his motion to dismiss. Napier has not demonstrated—or, in fact, evenargued—that the relief provide d by the district court was

4 Napier incorrectly argues that “[t]he district court found all of [the AUSA’s] conduct to be ‘astonishing, perplexing, and clearly inappropriate.’” Napier misconstrues the district court’s order. The court stated: “Further, that the interview by CPD detectives, the public ‘bond hearing’ in Hamilton County Court, and the attempted interview by Hamilton County Children’s Services all occurred while Napier was in federal custody is astonishing, perplexing, and clearly inappropriate.”No. 14-3492 United States v. Napier Page 13

insufficient to remedy the potential violation of his Fifth and Sixth Amendment rights for the purposes of his federal prosecution.
Third, and most importantly, Napi er has not demonstrated any actualprejudice as a result
of the AUSA’s conduct. See United States v. Morrison , 449 U.S. 361, 365 (1981) (holding that, assuming arguendo that the Sixth Amendment was violated, “absent demonstrable prejudice, or substantial threat thereof, dism issal of the indictment is plai nly inappropriate, even though the violation may have been deliberate”) (footnote omitte d). Napier conceded at oral argument that there is no compelling evidence of prejudice in this case. Napier has not pointed to anywhere in the record where the government used agains t him evidence obtained dur ing his February 7, 2013 interview. Additionally, Napier does not argue that the evidence obtained during the interview has been admitted against him in the stil l-pending state-court pro ceedings. Even if the evidence has been admitted against him, this is an issue for Napier to litigate in the context of his state criminal case. Further, this issue is sepa rate and distinct from the overwhelming evidence presented against him at his federal trial.
Finally, all of the cases Napier has cited insupport of his position merely stand for the proposition that dismissal of the indictment may be an appropriate remedy in some
circumstances. See, e.g. , Rochin , 342 U.S. at 172 (finding cons cience-shocking conduct where deputy sheriffs illegally entered the open door of a house, forced open the door to the accused’s bedroom, forcibly attempted to extract capsules that the accu sed swallowed, and directed a physician to pump the accused’s stomach so that the capsules were vomited); cf. Russell , 411 U.S. at 431-32 (“While we may some day be pr esented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial pr ocesses to obtain a conviction, th e instant case is distinctly not of that breed.”) (citation omitted). But the pr oblem for Napier on appeal is the same as it was before the district court: “Napier does not cite to any cases with facts remotely analogous to those here, and the Court cannot conclude based on the precedent before it that the government’s
conduct in this case . . . rises to th e level of conduct that warrants a dismissal of an indictment.” This Court has never sanctioned the remedy reque sted by Napier for any pretrial conduct by a federal prosecutor, and this case will not be the first.No. 14-3492 United States v. Napier Page 14

III.
Napier next contends that th e district court erred in de nying his motion for judgment of acquittal, which was premised on his assertion that the government failed to prove the interstate commerce element of the crimes charged. E ach of the twelve charges—nine counts of production of child pornography, and one count each of transportati on, distribution, and receipt of child pornography—included an element re quiring an interstate commerce connection.
See 18 U.S.C. §§ 2251(a), 2252(a)(1), 2252(a)(2). The di strict court, consistent with Napier’s request at trial, instruct ed the jury that this element could be satisfied by proof that “the visual depiction or the production or transmission materi als crossed a state line.” In denying Napier’s motion for judgment of acquittal, th e district court explained: “[T] he Court finds that taking the
evidence and the inferences most favorably to the government, a r easonable mind could fairly, if not conclusively, find guilt beyond a reasonable doubt. I think there was just overwhelming evidence by the government of everything, incl uding the interstate commerce elements.”

“We review de novo a challenge to the sufficiency of the evidence supporting a criminal
conviction.” United States v. Carson , 560 F.3d 566, 579 (6th Cir. 2009). In evaluating a sufficiency-of-the-evidence claim, we must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319 (1979). “‘In undertaking this analysis, this c ourt neither independently weighs the evidence, nor judges the credibility of witne sses who testified at trial.’” United States v. Howard , 621 F.3d 433, 460 (6th Cir. 2010) (quoting United States v. Talley , 164 F.3d 989, 996 (6th Cir. 1999)). “[T]he defendant bears a heavy burden when maki ng a sufficiency of the evidence challenge.”
Carson , 560 F.3d at 580.

We find there is sufficient evidence for th e jury to conclude that the government
established the interstate comm erce nexus. There is no support for Napier’s contention that the government “failed to present any evidence on this element.” During closing, the government devoted substantial time to outlining which of the government’s exhibits and which witness testimony supported each of the twel ve counts of conviction. Gene rally speaking, this evidence and testimony established that Napier was in Oh io when he recorded his sexual abuse of bothNo. 14-3492 United States v. Napier Page 15

Victim 1 and Victim 2 (Counts 1-9). The inters tate commerce requirement for each count was satisfied in at least one of three different ways . First, Napier shared the child pornography he created, through email, with othe r child pornographers and with Agent Gotjen. These recipients
were all located outside of Ohio : as established either by direct testimony (in the case of Agent Gotjen) (Count 11), or by the technical features of the recipient’s email communications (such as the timestamp) (Counts 1 and 10). At least some of these videos were taken using a cellphone, labeled as made in Taiwan, which had travelled in interstate commerce (Counts 2-9). Second, in one instance, Napier received child pornography from someone whose web domain and the content of his email suggested he was outside the United States (Count 12). Third, Napier emailed this pornography to himself from the Ea stern Time Zone to the Pacific Time Zone (Counts 1-10). 5

Simply put, the interstate commerce requirement is not as strenuous as Napier seems to
think it is. The distribution count (Count 11) is the simplest to ad dress, because there was direct testimony from Agent Gotjen estab lishing that she was based P hoenix at the time of her communications with Napier and there has been no suggestion by the defense that Napier was ever anywhere but Ohio. The other eleven counts rely on circumstantial evidence of interstate
travel.
For each of the production counts (Counts 1-9) and the transportation count (Count 10), the government relies on email timestamps to prove interstate travel between the Eastern Time
Zone and the Pacific Time Zone. Napier argues, without support, that “[t]he mere time stamp told the jury nothing, as a phone, computer[,] or ot her device can be set to any time zone in the world.” This argument is unpersuasive. First, Bu rnham testified that the emails were sent from the Eastern Time Zone to the Pacific Time Zone, a nd that Ohio is not in the Pacific Time Zone.

5 The government also asks this Court to consider a fourth avenue for establishing the federal jurisdictional nexus: Google recovered the child pornography Napier produced in Ohio from a search of computer servers in California. We will not address this argument for two reasons. First, we ne ed not reach this argument in light of all the other evidence establishing an inte rstate commerce connection in this case. Second, an interstate commerce connection must be part of the offense itself, not somethi ng unilaterally created by the government after the fact. The government cannot claim the federal jurisdictional requirement is met simply because of actions the government itself took during the course of its investigation—here, directing a search warrant to Google for information regarding Napier’s email account, and Google then access ing Napier’s email communications through its servers and providing those emails to the government. The fact th at Google was able to access Na pier’s emails in California is not convincing proof that the emails travelled in interstate commerce when Napier sent them. It merely establishes the unsurprising fact that Google can access all emails sent us ing its own servers. Further, the government has cited no cases for the proposition that its own investigatory conduct is sufficient to meet the jurisdictional requirement.No. 14-3492 United States v. Napier Page 16

Napier, however, did not cross-examine Burnham 6 and did not present his own computer forensic expert. In the absence of any rebut tal evidence from Napier—such as proof that the time zone on the email account was incorrectly se t by the recipient, as Napier now argues—the jury was entitled to cr edit Burnham’s testimony. See United States v. Torres-Ramos , 536 F.3d 542, 556 (6th Cir. 2008) (noting that a reviewing c ourt’s analysis of a defendant’s sufficiency-ofthe-evidence claim “does not re quire the removal of every hypothe sis except that of guilt”).
At trial, the government also presented eviden ce that some, if not a ll, of the Victim 2 videos that Napier emailed were taken using a cellphone whose label indicated it was made in Taiwan (Counts 2-9). 7 Courts have held that the use of materials manufactured outside of the
United States is sufficient to establish an interstate nexus. See, e.g. , United States v. Grzybowicz , 747 F.3d 1296, 1306-07 (11th Cir. 2014) (finding suffi cient evidence of the interstate commerce element of production and possession of childpornography offenses where defendant’s cellphone and laptop, which both contained pornographic images of children, were both manufactured outside the United States; the de fendant took the pornographic images of the victim on his foreign-made cellphone; the defendant used the Internet to send the photographs to his email account; and the defendant downloade d at least two of the photographs onto his foreign-made computer); United States v. Strausbaugh , 534 F. App’x 178, 184 (3d Cir. 2013),
cert. denied , 135 S. Ct. 99 (2014) (finding sufficient evidence supported defendant’s conviction for possession of child pornographywhere the camera the defendant used to take photographs was manufactured in Korea); United States v. Koch , 625 F.3d 470, 479 (8th Cir. 2010) (finding government had established that child pornography possessed by de fendant on his computer and flash drive had been transported in interstate commerce or produced using such materials by showing that defendant’s computer and flas h drive had been manufactured in China).
Nonetheless, Napier argued during closi ng, and argues again on appeal, that the government must prove where the recipient of any particular email was p hysically located when
the email transmission was received. This is not the relevant inquiry. Th e relevant inquiry is whether there is enough circumstantial evidence that these electronic communications were

6 Napier’s counsel did repeatedly raise the inters tate commerce issue at sidebar during Burnham’s testimony, which ultimately led to the district court qualifying Burnham as an expert witness.
7 Conversely, Burnham testified that the Victim 1 video was made using a Polaroid camera.No. 14-3492 United States v. Napier Page 17

transmitted through interstate wires. Given the omni present nature of the Internet, this is not a difficult burden for the government to satisfy. See United States v. Mellies , 329 F. App’x 592, 605-07 (6th Cir. 2009); see also United States v. MacEwan , 445 F.3d 237, 244 (3d Cir. 2006) (“[W]e conclude that because of the very interstate nature of the Internet, once a user submits a connection request to a website serv er or an image is transmitted fr om the website server back to user, the data has traveled in interstate commerce.”); United States v. Hilton , 257 F.3d 50, 54-55 (1st Cir. 2001) (“[P]roof of transmission of pornography over the Internet . . . satisfies the interstate commerce element of the offense,” wh ich the government satisfied through testimony from a computer forensics agent that images ha d “likely” been downloa ded from the Internet because the storage disk “contained software used in conjunction with Internet chat rooms.”); United States v. Runyan , 290 F.3d 223, 239 (5th Cir. 2002) (joi ning the First Circuit in holding that “[t]ransmission of photographs by means of the Internet is tantamount to moving photographs across state lines and thus constitu tes transportation in interstate commerce”) (alteration in original) (internal quotation marks omitted); United States v. Harris , 548 F. App’x 679, 682 (2d Cir. 2013) (same); United States v. White , 2 F. App’x 295, 298 (4th Cir. 2001) (per curiam) (same). In the present case, we find that Napier’s use of the Internet, coupled with the varying timestamps indicated on his emails, is sufficient to satisfy the federal jurisdictional

nexus.
The same analysis holds true for the rece ipt charge (Count 12), which concerned child pornography Napier received on September 13, 2010, from someone using the email address DirtyHarry@o2email.co.uk. The relevant inquiry is not, as Napier argued at trial, whether the government proved that “Dirty Harry” was physic ally located in the United Kingdom. The relevant inquiry is whether Dirty Harry’s email a ddress is sufficient circumstantial evidence that Dirty Harry’s email communications to Napier were transmitted through foreign and interstate
wires. Given that Dirt y Harry’s email address indicates thatDirty Harry’s cellular or internet service is provided by O2—a tel ecommunications company whose serv ice is not available in the United States but is widely av ailable in the United Kingdom—the jury could reasonably find the government had satisfied the jurisdic tional requirement on this count.No. 14-3492 United States v. Napier Page 18

IV.
Napier next argues that the district court erred in admitting the following evidence at trial: (1) a document from Time Warner Cable, obtained pursuant to a government subpoena, showing that the email address jonapier1992@gm ail.com was accessed at the Sunset Avenue address and that Napier was the subscriber of the account; and (2) the two cell phones, microSD card, and Schiele’s Acer computer—all of which bore markings indicating they were
manufactured outside of the United States. On appeal, Napier contends admission of the Time
Warner document and the electronic devices viol ated his rights under the Confrontation Clause. At trial, however, Napier objected to the devi ces’ admission solely on hearsay grounds. The
district court found the Time Warner document was not hearsay, and was only being admitted to demonstrate the FBI’s investigation. The court also immediately provided a limiting instruction to the jury to that effect. As to the electronic devices, the dist rict court found the markings were not hearsay, and that the relevant witnesses were only reading whatthe markings said (which the jury could do for itself).

We review a district court’ s evidentiary rulings under the abuse of discretion standard,
United States v. White , 492 F.3d 380, 398 (6th Cir. 2007), and fi nd the district court correctly admitted the Time Warner document. The Confrontation Clause prevents the government from relying on out-of-court, testimonial statements to establish the truth of the matter asserted. Crawford v. Washington , 541 U.S. 36, 50-51, 59 n.9, 68 (2004). The document here was not
offered for the truth of the matter asserted. Ra ther, the document was pl ainly offered during the testimony of Special Agent Pamela Kirschner to demonstrate how the Cincinnati Office of the FBI located Napier. They first received Agent Gotjen’s investig atory file, and then subpoenaed
Time Warner Cable. Time Warn er’s response (the document in qu estion) then led the agents to the Sunset Avenue address, which led them to the apartment manager, who gave them Schiele’s forwarding address, where the agents located Schi ele, who gave them her computer, which led to the recovery of images of child pornography, whic h led to Schiele identifying her niece in these images, which led to Napier’s arrest. Thus, th is exhibit was offered for the limited purpose of showing the course of the agents’ investigation, and the district cour t properly gave a limitingNo. 14-3492 United States v. Napier Page 19

instruction to that effect. It was not, as Napier claims, “offered for the tr uth that Napier resided at the residence during th e relevant time period.”

We also find that admission of the two cel l phones, microSD card, and Acer computer
did not violate the Confrontati on Clause. The district court presumed the government was not offering the manufacturer labels on these devices as proof of travel in interstate commerce. The government’s reference to the phones’ country of manufacture during closing, however, would seem to call into question the district court’s pr esumption. At trial, Napier framed admission of this evidence as a violation of the rule agains t hearsay. Napier’s hear say objection was itself a restatement of his general argument that the g overnment had failed to establish the federal jurisdictional requirement. On appeal, Napier attemp ts to reframe this issue as a violation of the
Confrontation Clause. We fi nd Napier’s hearsay objection in sufficient to preserve the constitutional claim he is now asserting, and therefore apply plain error review. See United States v. Hadley , 431 F.3d 484, 498 (6th Cir. 2005) (“Because Defendant raised only a hearsay objection to these statements at trial, and did not challenge their admissibility on constitutional grounds, our review here is governed by the plain error standard.”).
“Under this standard, we may correct a purported error that was not raised at trial only if there is ‘(1) error, (2) that is plain, a nd (3) that affect[s] s ubstantial rights.’” Id. (quoting
Johnson v. United States , 520 U.S. 461, 467 (1997)) (alteration in original). The Confrontation
Clause bars the “admission of testimonial statements of a witness wh o did not appear at trial unless he was unavailable to testify, and th e defendant had a prio r opportunity for crossexamination.” Crawford , 541 U.S. at 53-54 (emphasis added). Thus, “[t]o trigger a violation of the Confrontation Clause, an admitted statement must be testimonial in nature, and must be hearsay—that is, a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” United States v. Deitz , 577 F.3d 672, 683 (6th Cir. 2009) (internal quotation marks omitted).
Regardless of whether the manufacturer labels are hearsay, they are at most nontestimonial statements, which are not barred by the Confrontation Clause. A testimonial statement is (1) “[a] solemn declaration or affi rmation made for the purpose of establishing or proving some fact,” Crawford , 541 U.S. at 51 (alteration in orig inal) (quoting 2 N. Webster, AnNo. 14-3492 United States v. Napier Page 20

American Dictionary of the English Language (1828)); (2) “made under circumstances which would lead an objective witnes s reasonably to believe that th e statement would be available for use at a later trial,” id. at 52 (quoting Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae at 3, Crawford v. Washington , 541 U.S. 36 (2004) (No. 02-9410), 2003 WL 21754961, at *3); and (3) having “a prim ary purpose of creating an out-of-court
substitute for trial tes timony” or “establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution,” Michigan v. Bryant , 131 S. Ct. 1143, 1155, 1165 (2011) (internal quotation marks omitted). Here, the labels on th ese electronic devices bear none of these
hallmarks of testimonial statements.
Accordingly, Napier has not established any plain error in the dist rict court’s admission
of these exhibits.

V.
Finally, Napier argues that his conviction on the distribution charge (Count 11)—relating to the compilation of child pornography Napier sent to Agent Gotjen on July 25, 2010—should be vacated because “the [g]overn ment relied on evidence wholly different that that passed upon by the grand jury.” Napier claims that, because the petit jury heard different evidence on the distribution charge than did the grand jury, either a due process violation or a “fatal” variance
resulted.
Napier’s argument is difficult to follow. He argued at trial—in the context of his motion for judgment of acquittal—and now again on appeal that the evidence presented to the grand jury was somehow “different,” but provi des little elucidation as to what that evidence was or how it differed from the evidence presented at trial. Napi er’s argument appears to be that the evidence the government presented at trial—the “47.wmv” compilation video—was never presented to the grand jury. Rather, Napier alle ges, the government argued before the grand jury that on June 25, 2010, he traded child pornography on RapidShare.c om. The district court understood Napier’s argument as follows: “It seems to me that what you’re saying is that . . . when the government proves probable cause in front of the grand jury, it has to present its entire case there; and if it deviates in any way from its case between the grand jury and the petit jury . . . th[en] there is aNo. 14-3492 United States v. Napier Page 21

problem.” The district court re jected this argument, finding it “irrelevant” what evidence the government produced before the grand jury. ( Id. )
Napier did not raise his due process argumen t before the district court. The panel therefore reviews for plain error. Hadley , 431 F.3d at 498. Napier cites no eviden ce that the offense charged in the indictment is different fro m the offense charged at trial. Instead, Napier offers nothing but his own unsuppor ted factual allegations. Th is is insufficient under any standard of review, and especia lly so under plain error review. But even assuming Napier is correct, and that the evidence does not “match,” this does not undermine the validity of the indictment or the jury’s conviction. And, as the di strict court noted, Napier cites no authority for the proposition that due process requires that th e evidence at trial exactly match the evidence presented to the grand jury.
Napier implicitly argues that he committed more than one distri bution offense on June 25, 2010. From this he concludes that, because the evidence allegedly does not “match,” he “has no ability to plead [d]ouble [j]eopardy as to e ither offense under this record.” Napier’s contention is illogical. As the government argues: “If, as he seems to suggest, he committed two
different violations of the same statute on the same day but was tried for only one of them, the
violation for which he was convicted is the one fo r which he cannot be tried again.” Further, as the district court noted, Napier could have asked for a bill of particulars in order to clarify his
confusion. He did not do so.
Conversely, Napier did raise his “fatal” vari ance argument before the district court. Accordingly, we review de novo whether there was a variance between the indictment and the proof offered at trial. See United States v. Bearden , 274 F.3d 1031, 1039 (6th Cir. 2001).
Variances “are not per se prejudicial,” United States v. Budd , 496 F.3d 517, 521 (6th Cir. 2007), or “fatal” in Napier’s parlance. Rather, reve rsal is warranted only where a defendant proves (1) that a variance occurred, and (2) that the vari ance affected the defendant’s substantial rights.
United States v. Prince , 214 F.3d 740, 757 (6th Cir. 2000). A variance “occurs when the charging terms [of the indictment] are uncha nged, but the evidence at trial proves facts materially different from those alleged in the indictment.” Id. at 756-57 (altera tion in original) (internal quotation marks omitted). The substan tial rights of the defendant “are affected onlyNo. 14-3492 United States v. Napier Page 22

when the defendant shows prejudice to his ability to defend himself at trial, to the general fairness of the trial, or to the indictment’s sufficiency to bar subsequent prosecutions.” United States v. Hynes , 467 F.3d 951, 962 (6th Cir. 2006) (quoting United States v. Barrow , 118 F.3d 482, 488-89 (6th Cir. 1997)). Here , Napier has identifie d no difference between the indictment’s
terms and the evidence at trial. Moreove r, he has not identif ied any prejudice.
Accordingly, we find there was neither a due process violation nor a prejudicial variance.

VI.
Based on the foregoing analysis, we AFFIRM Napier’s convictions in all respects.