FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUG 11, 2006

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_____________

No. 03-13639

_____________

D.C. Docket No. 02-00257-CR-T-23-TGW

UNITED STATES OF AMERICA,

Plaintiff-Appellee, 

versus

ALVIN SMITH,

Defendant-Appellant. 

____________

Appeal from the United States District Court

for the Middle District of Florida

____________

(August 11, 2006)

ON REMAND FROM THE 

SUPREME COURT OF THE UNITED STATES

Before TJOFLAT, RONEY and HILL, Circuit Judges.

TJOFLAT, Circuit Judge:

This case is before us on remand from the Supreme Court with instructions
 Section 2251(a) provides:

1

Any person who employs, uses, persuades, induces, entices, or coerces any minor

to engage in . . . any sexually explicit conduct for the purpose of producing any

visual depiction of such conduct, shall be punished . . . if such person knows or

has reason to know that such visual depiction will be transported in interstate or

foreign commerce or mailed, if that visual depiction was produced using materials

that have been mailed, shipped, or transported in interstate or foreign commerce

by any means, including by computer, or if such visual depiction has actually been

transported in interstate or foreign commerce or mailed.

2

to reconsider our panel decision, 402 F.3d 1303 (11th Cir. 2005) (Smith I), in light

of Gonzalez v. Raich, 545 U.S. 1, 125 S. Ct. 2195, 162 L. Ed. 2d 1 (2005). United

States v. Smith, 125 S. Ct. 2938, 162 L. Ed. 2d 863 (2005) (mem.). Upon

reconsideration, we have determined that, as a result of Raich and our recent

decision in United States v. Maxwell, 446 F.3d 1210 (11th Cir. 2006) (Maxwell

II), we can no longer say that the failure to find 18 U.S.C. §§ 2251(a),

2252A(a)(5)(B) unconstitutional as applied to this case amounted to plain error. 

Because we find no other reversible error, we affirm the defendant’s convictions. 

Part I lays out the facts of this case. Part II discusses the effect of Raich and

Maxwell II on our earlier decision. Part III analyzes claims raised by the

defendant that we did not address in that decision. Part IV briefly concludes.

I.

Alvin Smith was convicted of one count of producing child pornography in

violation of 18 U.S.C. § 2251(a) and one count of possessing child pornography 1
 Section 2252A(a)(5)(B) provides:

2

Any person who . . . knowingly possesses any book, magazine, periodical, film,

videotape, computer disk, or any other material that contains an image of child

pornography that has been mailed, or shipped or transported in interstate or

foreign commerce by any means, including by computer, or that was produced

using materials that have been mailed, or shipped or transported in interstate or

foreign commerce by any means, including by computer . . . shall be punished . . .

.

3

in violation of 18 U.S.C. § 2252A(a)(5)(B), and was sentenced to a total of 188 2

months in prison and 60 months of supervised release, a condition of which

required him to register with state agencies as a sex offender. The physical

evidence used against Smith was discovered pursuant to a search warrant executed

at Smith’s mother’s home in Tampa, Florida. At the time of the search, Smith was

incarcerated and the target of the investigation was his brother, who lived at the

residence and was suspected of involvement in drug trafficking. As such, the

focus of the warrant was drugs and drug paraphernalia. During the course of the

search, a narcotics dog alerted the police to a lockbox, which was subsequently

identified as Smith’s. Upon opening the lockbox, the police discovered numerous

photographs (investigators later determined the exact number to be 1,768), many

sexually explicit, and a number of which appeared to be of “very, very young girls

having sex . . . with a male who [was later] identified as the defendant.”

The photographs were referred to the department’s sex crime unit where an
 At trial, the Government introduced the girl’s Mexican birth certificate to establish her 3

age at the time of the photographs. 

4

officer confirmed that many of the pictures appeared to be of young girls. 

Investigators eventually located a girl who appeared in several of the photographs. 

From the dates on the photos it was determined that the girl was fourteen years old

at the time the pictures were taken. The girl confirmed that the photos were of 3

her and, from photographs of Smith, identified him as the photographer.

At Smith’s trial, the girl testified that, in November 1999, Smith approached

her and her boyfriend and persuaded them to allow Smith to take pictures of her in

her underwear in exchange for monetary compensation. After retrieving a camera

and film, Smith reserved a hotel room into which only he and the girl entered. 

Smith convinced her to remove all of her clothes and proceeded to take sexually

suggestive pictures. Smith directed many of the poses and physically spread her

genitalia himself for a particularly graphic shot. When Smith was finished taking

pictures, he left the girl and her boyfriend with money and the hotel room.

During the trial, the Government introduced several pictures from the

lockbox, including the photographs of the victim (including a thumbnail print of

one roll of the photographs), sexually explicit and sexually suggestive

photographs of other females – some of whom appeared likely to be of age – in
 The Government also introduced Smith’s inmate discharge identification card found in 4

the lockbox.

5

what appeared to be the same hotel room, and photographs of Smith alone.4

Additionally, the Government offered testimony of several of the officers involved

in the search and subsequent investigation, as well as a recording of a phone

conversation between Smith and his mother, Lucille, that took place while Smith

was incarcerated in June 2002, regarding the pictures in the lockbox.

Finally, the Government introduced evidence to satisfy the jurisdictional

elements of the statutes. The Government did not attempt to demonstrate that the

images either traveled in interstate commerce themselves or were produced with

the intent that they would travel in interstate commerce. Rather, by providing

evidence that some of the photographs were printed on Kodak paper that the

developer in Florida received from New York and that some of the pictures were

processed using equipment received from California and manufactured in Japan,

the Government’s intention was to establish that the photographs were “produced

using materials that have been mailed, shipped, or transported in interstate or

foreign commerce.” 18 U.S.C. § 2251(a); see also id. § 2252A(a)(5)(B).

At the close of the Government’s case, the defense moved for judgment of

acquittal under Federal Rule of Criminal Procedure 29. The defense argued that,
 Congress may “regulate Commerce with foreign Nations, and among the several 5

States.” U.S. Const. art. I, § 8, cl. 3.

6

as to the possession count, there was insufficient evidence to prove that Smith

knew the girl was younger than eighteen years old; as to both counts, there was

insufficient evidence to establish the jurisdictional elements. The court denied the

motion and sent the case to the jury. The jury convicted Smith on both counts,

specifically finding that the pornographic photographs were produced using film,

photo paper, and equipment that had traveled in interstate or foreign commerce. 

Smith appeals his convictions raising several arguments for the reversal of

his convictions and the vacation of his sentences. We begin in part II with his

claim that the statutes under which he was convicted were unconstitutional

applications of Congress’s Commerce Clause authority as applied to his conduct. 

II.

Smith contends that both 18 U.S.C. § 2252A(a)(5)(B) and 18 U.S.C. §

2251(a) are unconstitutional exercises of Congress’s Commerce Clause authority

as applied to his conduct. In Smith I, we upheld Smith’s claims and reversed his

5

convictions. It is these holdings that the Supreme Court returned to us for

reconsideration in light Gonzalez v. Raich, 545 U.S. 1, 125 S. Ct. 2195, 162 L. Ed.

2d 1 (2005).
7

In our previous decision, we noted that, because Smith had not challenged

the constitutionality of the statutes at trial, such a contention would only be

reviewed for plain error. “Under the plain error standard, before an appellate court

can correct an error not raised at trial, there must be (1) error, (2) that is plain, and

(3) that affects substantial rights. If all three conditions are met, an appellate court

may then exercise its discretion to notice a forfeited error, but only if (4) the error

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Williams, 445 F.3d 1302, 1308 (11th Cir. 2006). 

We again review Smith’s claim for plain error. In doing so, we are mindful that,

just as in Smith I, “[t]he error must be ‘plain’ at the time of appellate

consideration.” 402 F.3d at 1315. That is, the error must be plain now, in light of

recent Supreme Court and Eleventh Circuit developments.

As we stated in our prior opinion, the Supreme Court has delineated three

categories of activity that Congress may constitutionally regulate pursuant to its

Commerce Clause authority:

First, Congress may regulate the use of the channels of interstate

commerce. Second, Congress is empowered to regulate and protect

the instrumentalities of interstate commerce, or persons or things in

interstate commerce, even though the threat may come only from

intrastate activities. Finally, Congress’ commerce authority includes

the power to regulate those activities having a substantial relation to

interstate commerce, i.e., those activities that substantially affect
8

interstate commerce.

Smith I, 402 F.3d at 1316 (quoting United States v. Lopez, 514 U.S. 549, 558-59,

115 S. Ct. 1624, 1629-30, 131 L. Ed. 2d 626 (1995)) (internal quotation marks

omitted). The question we addressed in Smith I – and reconsider here – was

whether either statute, as applied to Smith’s case, could be said to be regulating

conduct that “substantially affect[s] interstate commerce.” Id. 

As to this issue, our prior opinion stated that “the law at the time of Smith’s

trial was ‘unclear’ rather than ‘settled and clearly contrary to’ him.” Smith I, 402

F.3d at 1315 n.7 (quoting Johnson v. United States, 520 U.S. 461, 468, 117 S. Ct.

1544, 1549, 137 L. Ed. 2d 718 (1997)). We ultimately determined, however, that,

at the time of appeal, it was settled that Smith’s conduct could not be said to affect

substantially, at least in the constitutional sense, interstate commerce. 

Accordingly, we held that Congress’s regulation of Smith’s production and

possession of child pornography was beyond the scope of its Commerce Clause

authority. 

In arriving at this conclusion, we relied primarily on this court’s earlier

decision in United States v. Maxwell, 386 F.3d 1042 (11th Cir. 2004) (Maxwell I),

where we concluded that “purely intrastate possession of child pornography was

not converted ‘into an activity subject to Commerce Clause regulation’ simply
 Maxwell dealt only with 18 U.S.C. § 2251A(a)(5)(B). Although Maxwell I invalidated 6

the statute as applied, we spent little time discussing Smith’s possession charge as the argument

in favor of Congressional authority was nearly identical to that in Maxwell. Smith I, 402 F.3d at

1316-17 (“Because there is no significant difference between Smith’s possession and Maxwell’s

possession, our analysis will focus on Smith’s intrastate, noncommercial production of child

pornography.”). The bulk of our discussion dealt with the applicability of Maxwell’s reasoning

to the production charge.

9

because ‘the disks on which the pornography was ultimately copied traveled, when

blank, to Florida from someplace outside of Florida.’” Smith I, 402 F.3d at 1309

(quoting Maxwell I, 386 F.3d at 1068). Discerning nothing to distinguish

constitutionally Smith’s case from Maxwell’s, we found constitutional error. See

id. at 1316-23. Believing this conclusion to be inescapable based on Maxwell I’s 6

holding and reasoning, we found this error plain. See id. at 1323-25.

Our conclusion that the constitutional error was plain was explicitly reliant

on Maxwell I. Framing our task under plain error review in a context where the

law was not settled at the time of trial, but is settled at the time of appeal, we noted

that the relevant question we must answer is: “If Smith’s prosecution were

initiated today, would his conduct be so obviously beyond the power of Congress

to proscribe that the district court should raise the issue sua sponte even absent a

timely objection?” Smith I, 402 F.3d at 1323 (internal quotation marks omitted). 

We concluded that, “[i]n light of Maxwell, we answer this question in the

affirmative.” Id. We later made this reliance even more clear: “[T]he error is
10

plain only if Maxwell itself made it so.” Id.

The Supreme Court vacated our decision in Maxwell I, see United States v.

Maxwell, __U.S. __, 126 S. Ct. 321, 163 L. Ed. 2d 29 (2005) (mem.), along with

our decision in this case, for reconsideration in light of the Court’s most recent

Commerce Clause opinion in Raich, 545 U.S. 1, 125 S. Ct. 2195, 162 L. Ed. 2d 1

(2005). Raich upheld against constitutional attack the application of the

Controlled Substances Act (CSA), 21 U.S.C. § 801 et seq., to the wholly intrastate

cultivation and use of marijuana for medicinal purposes. See id. The Court’s

opinion was based primarily on the premise that Congress may regulate purely

intrastate activity, whether economic or not, that could be rationally considered

incident to Congress’s comprehensive regulation of interstate economic activity. 

See id. at 2205-15; id. at 2205 (“Our case law firmly establishes Congress’ power

to regulate purely local activities that are part of an economic ‘class of activities’

that have a substantial effect on interstate commerce.”); id. at 2206 (“Congress can

regulate purely intrastate activity that is not itself ‘commercial,’ . . . if it concludes

that failure to regulate that class of activity would undercut the regulation of the

interstate market in that commodity.”). In revisiting Maxwell I, we determined

that Raich called into question much of our earlier analysis and ultimately upheld

the constitutionality of 18 U.S.C. § 2252A(a)(5)(B). See Maxwell II, 446 F.3d at
 We expressly deferred consideration of whether the current Commerce Clause

7

framework leaves room for as applied challenges to facially constitutional statutes. See Maxwell

II, 446 F.3d at 1215 n.5.

 Because Maxwell II dealt with the possession of child pornography and we discern 8

nothing to distinguish Smith’s possession from Maxwell’s, we have no trouble finding the

application of § 2252A(a)(5)(B) to Smith’s conduct to be constitutionally sound. We therefore

only focus on the production charge.

11

1216-19; id. at 1216 (“We find very little to distinguish constitutionally Maxwell’s

claim from Raich’s. Indeed, much of the Court’s analysis could serve as an

opinion in this case by simply replacing marijuana and the CSA with child

pornography and the [Child Pornography Prevention Act of 1996].” (footnote

omitted)); id. at 1219 (“[W]e hold that 18 U.S.C. § 2252A is a valid exercise of

Congress’s authority pursuant to the Necessary and Proper Clause to effectuate

Congress’s power to regulate commerce among the several states.”).

7

In light of Raich and Maxwell II, Smith’s claim of plain error fails at step

one. Without Maxwell I, Smith cannot establish that any error would be plain. 

Indeed, after Raich and Maxwell II, Smith cannot establish that the application of

§ 2251(a) or § 2252A(a)(5)(B) to his conduct was error at all. 

We rather easily conclude that the application of § 2251(a) to Smith’s

intrastate production of child pornography is within Congress’s constitutional

authority. Section 2251(a) “is part of a comprehensive regulatory scheme 8

criminalizing the receipt, distribution, sale, production, possession, solicitation
 In Smith I, we determined that aggregation was not appropriate because his conduct was

9

“noneconomic, purely intrastate activity.” 402 F.3d at 1322. Raich left some confusion as to

whether Smith’s conduct could be considered “economic.” On the one had, the Supreme Court

defined “economics” as “the production, distribution, and consumption of commodities.” 125 S.

Ct. at 2211 (quoting Webster’s Third New International Dictionary 720 (1966)). On the other, it

grouped together the intrastate manufacture and possession of an article of commerce as conduct

Congress could rationally regulate as a means of regulating commerce in that product. Id. We

need not dwell long on this question, as Raich made the economic/non-economic distinction

irrelevant for aggregation purposes.

12

and advertisement of child pornography.” Maxwell II, 446 F.3d at 1216-17.

As such, we need only determine “whether Congress could rationally conclude

that the cumulative effect of the conduct by [Smith] and his ilk would substantially

affect interstate commerce.” Id. at 1218. This is because, “where Congress has

attempted to regulate (or eliminate) an interstate market, Raich grants Congress

substantial leeway to regulate purely intrastate activity (whether economic or not)

that it deems to have the capability, in the aggregate, of frustrating the broader

regulation of interstate economic activity.” Id. at 1215. 

9

Just as in Maxwell II,

there is nothing irrational about Congress’s conclusion, supported by

its findings, that pornography begets pornography, regardless of its

origin. Nor is it irrational for Congress to conclude that its inability

to regulate the intrastate incidence of child pornography would

undermine its broader regulatory scheme designed to eliminate the

market in its entirety, or that “the enforcement difficulties that attend

distinguishing between [purely intrastate and interstate child

pornography],” would frustrate Congress’s interest in completely

eliminating the interstate market. It is well within Congress’s

authority to regulate directly the commercial activities constituting
13

the interstate market for child pornography, and “[p]rohibiting the

intrastate possession or manufacture of an article of commerce is a

rational . . . means of regulating commerce in that product.”

Id. at 1218 (citations omitted) (quoting Raich, 125 S. Ct. at 2209; id. at 2211).

Because, for Commerce Clause purposes, there is nothing that distinguishes

Smith’s intrastate production from his possession, we believe that Maxwell II

dictates the result in this case. Congress could have rationally concluded that the

inability to regulate intrastate possession and production of child pornography

would, in the aggregate, undermine Congress’s regulation of the interstate child

pornography market. We therefore find no constitutional error in the application

of either §§ 2251(a) and 2252A(a)(5)(B) to Smith’s conduct. 

III.

In our prior opinion we had no occasion to reach Smith’s other claims of

error. Because we now reverse our prior determination and hold that there was no

plain error in constitutionally applying § 2251 and § 2252A to Smith’s conduct,

we must address Smith’s additional claims.

Smith seeks one of three forms of relief. He argues first that there was

insufficient evidence for his convictions and therefore he should be acquitted. He

alternatively requests a new trial based on several claims of evidentiary and jury

instruction error. Finally, he asks that we set aside his sentences and order a new
 We note that, as far as Double Jeopardy concerns are implicated, we review the 10

sufficiency of all the evidence admitted at trial – admissible or inadmissible. See Lockhart v.

Nelson, 488 U.S. 33, 40-41, 109 S. Ct. 285, 291, 102 L. Ed. 2d 265 (1988) (“It is quite clear from

our opinion in Burks that a reviewing court must consider all of the evidence admitted by the trial

court in deciding whether retrial is permissible under the Double Jeopardy Clause . . . .”). 

Because we find no evidentiary errors, we need not concern ourselves with whether an appellate

court should disregard inadmissible evidence in determining sufficiency. Compare United States

v. Khoury, 901 F.2d 948, 961 (11th Cir.1990) (“Although we are reversing Kluver’s conviction

because of harmful constitutional error, nonetheless we must still rule on Kluver’s sufficiency

argument because if the properly admitted evidence presented by the government was insufficient

to carry the burden of proof, then Kluver’s retrial would be prohibited by the double jeopardy

bar.”) with Lockhart, 488 U.S. at 40-41, 109 S. Ct. at 291; United States v. Yates, 438 F.3d 1307,

1319 n.13 (11th Cir. 2006) (en banc) (noting that, in passing on a sufficiency of the evidence

challenge, the “usual rule” is to consider all evidence admitted at trial, even unconstitutionally

admitted evidence).

14

sentencing hearing after he is advised of the mandatory sentencing ranges and

conditions of supervised release. We address the sufficiency of the evidence at the

outset, as a finding of insufficient evidence would obviate any need to consider the

alleged trial errors. See Burks v. United States, 437 U.S. 1, 18, 98 S. Ct. 2141,

2150-51, 57 L. Ed. 2d 1 (1978) (“Since we hold today that the Double Jeopardy

Clause precludes a second trial once the reviewing court has found the evidence

legally insufficient, the only . . . remedy available for that court is the direction of

a judgment of acquittal.”); United States v. Bobo, 419 F.3d 1264, 1268 (11th Cir. 10

2005) (noting this court’s prudential rule “that requires the court to review

sufficiency of the evidence claims raised by defendants, even if resolution on

alternative grounds would otherwise dispose of the case” and collecting cases).

A. Sufficiency of the Evidence
15

1. Arguments Made at Trial

At the close of the Government’s case, Smith moved pursuant to Federal

Rule of Criminal Procedure 29 for a judgment of acquittal, claiming insufficient

evidence to prove the interstate nexus with regards to both 18 U.S.C. § 2251(a)

and § 2252A(a)(5)(B) and insufficient evidence to prove that he “knowingly”

possessed child pornography in violation of § 2252A(a)(5)(B). The district court

denied his motion. Of these arguments, Smith only claims on appeal that the

evidence was insufficient to prove that he knew the victim was a child. We review

a district court’s denial of a motion for judgment of acquittal based on sufficiency

of the evidence de novo. United States v. Dulcio, 441 F.3d 1269, 1276 (11th Cir.

2006). “In determining whether the government produced sufficient evidence, we

must review the evidence in the light most favorable to the government and draw

all reasonable factual inferences in favor of the jury’s verdict.” Id. We need only

determine that a reasonable fact-finder could have determined that the evidence

proved the defendant’s guilt beyond a reasonable doubt. United States v. Peters,

403 F.3d 1263, 1268 (11th Cir. 2005).

Because Smith did not testify at trial, any evidence regarding his knowledge

of the victim’s age must necessarily be circumstantial. The evidence presented by

the Government included the following: (1) the testimony of Officer Mayo – one
16

of the officers who executed the search warrant and who had no specific training

regarding sex crimes or child exploitation – who described the females in the

photographs as “very, very young girls;” (2) the testimony of Detective Dickie, a

sex crimes/sex abuse investigator with sixteen years of related experience, who

testified that some of the photographs were of females under eighteen and whose

follow-up investigation of such photographs led her to the victim; and (3) the

actual photographs of the victim. Given this evidence, and the reasonable

inferences that could be drawn therefrom, a reasonable juror could find beyond a

reasonable doubt that the victim was so obviously a minor that the defendant must

have known as much. We therefore affirm the district court’s denial of the

defendant’s motion for judgment of acquittal.

2. Plain Error – “Knowingly” and the Interstate Nexus

On appeal, Smith argues that (1) in order to be convicted under either 18

U.S.C. § 2251(a) or § 2252A, the prosecution was required to prove – either as a

matter of statutory interpretation or constitutionally – that he knew the interstate

nexus was satisfied, and (2) there was insufficient evidence to prove his

knowledge of the nexus beyond a reasonable doubt. As that requirement pertains

to this case, Smith submits that the prosecution had the obligation to prove that he

knew that the photographs were “produced using materials that have been mailed,
17

shipped, or transported in interstate or foreign commerce by any means, including

by computer.” 18 U.S.C § 2251(a); see also id. § 2252A(a)(5)(B). In this regard,

he relies entirely on United States v. X-Citement Video, Inc., 513 U.S. 64, 115 S.

Ct. 464, 130 L. Ed. 2d 372 (1994). Because Smith did not raise this issue at the

district court, we view this claim for plain error. 

X-Citement video dealt with the knowledge requirement of 18 U.S.C. §

2252(a)(1), (2). We begin with two observations about X-Citement Video: First,

the Court did not suggest that the “knowingly” term extended to the jurisdictional

terms of the statute. Id. at 78, 115 S. Ct. at 472 (“[W]e conclude that the term

‘knowingly’ in § 2252 extends both to the sexually explicit nature of the material

and to the age of the performers.”). Second, we note that X-Citement Video was

not a constitutional holding. The Court interpreted the statute itself, and in

concluding that “knowingly” applied to the nature and age provision, noted that, in

light of First Amendment precedent, “a statute completely bereft of a scienter

requirement as to the age of the performers would raise serious constitutional

doubts.” Id. But see id. at 83-85, 115 S. Ct. at 474-75 (Scalia, J., dissenting). The

conclusion, however, was one of statutory interpretation. Thus, X-Citement Video

guides our analysis only to the extent it aids our interpretation of 18 U.S.C. §

2251(a) and § 2252A(a)(5)(B).
 In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), we adopted as 11

binding precedent the decisions of the former Fifth Circuit handed down prior to October 1,

1981.

 18 U.S.C. § 924(a)(1)(B) states that anyone who “knowingly violates subsection (a)(4),

12

(f), (k), or (q) of section 922” shall be punished according to the statute’s stated terms. 18 U.S.C.

§ 922(g) makes it unlawful for certain specified persons “to ship or transport in interstate or

18

a. 18 U.S.C. § 2252A(a)(5)(B)

As previously noted, 18 U.S.C. § 2252A(a)(5)(B) provides, in relevant part:

Any person who . . . knowingly possesses any book, magazine,

periodical, film, videotape, computer disk, or any other material that

contains an image of child pornography that has been mailed, or

shipped or transported in interstate or foreign commerce by any

means, including by computer, or that was produced using materials

that have been mailed, or shipped or transported in interstate or

foreign commerce by any means, including by computer . . . shall be

punished . . . 

It would not be an implausible interpretation of the statute to extend the term

“knowingly” to the jurisdictional elements. It is not, however, an inevitable

interpretation, and we are unaware of any court that has previously adopted it. Cf.

United States v. Thrasher, 569 F.2d 894, 895 (5th Cir. 1978) (“The law is well

settled . . . that the government is not required to prove knowledge of the interstate

nexus of the firearm” in 18 U.S.C. § 922(h)(1).); United States v. Miller, 105 11

F.3d 552, 555 (9th Cir. 1997) (“We agree with the decisions from other circuits

that the § 924(a) knowledge requirement applies only to the possession element of

§ 922(g)(1), not to the interstate nexus or to felon status.”); United States v. 12
foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive

any firearm or ammunition which has been shipped or transported in interstate or foreign

commerce.”

19

Darby, 37 F.3d 1059, 1067 (4th Cir. 1994) (noting that “[n]umerous cases have

held that criminal statutes based on the government’s interest in regulating

interstate commerce do not generally require that an offender have knowledge of

the interstate nexus of his actions,” and collecting cases). Nor have we found

anything in the legislative history of the statute that would suggest – plainly or

otherwise – that Congress only intended to reach possessors of child pornography

who knew that the materials on or by which their pornography was produced had

traveled in interstate commerce. Moreover, the presumption in X-Citement Video,

which guided the Court to its conclusion, that “a scienter requirement should apply

to each of the statutory elements that criminalize otherwise innocent conduct,” XCitement Video, 513 U.S. at 72, 115 S. Ct. at 469, does not apply in this case. 

Given the background of state criminal regulation of child pornography,

possession of child pornography that has not traveled in interstate commerce

cannot be said to be “innocent conduct.” Accordingly, we cannot conclude that

the failure to interpret the term “knowingly” to extend to the interstate nexus was

plain error.

Similarly, any argument that knowledge of the interstate nexus is
20

constitutionally required cannot stand plain error analysis. As previously noted,

X-Citement Video does not even stand for the proposition that knowledge of the

age of the performers is constitutionally required, let alone knowledge of the

interstate nexus. To the extent the First Amendment does require knowledge of

age, moreover, it is because material that would be constitutionally protected when

the performers are adults is not necessarily constitutionally protected when

involving children. See Ashcroft v. Free Speech Coalition, 535 U.S. 234, 240,

122 S. Ct. 1389, 1396, 152 L. Ed. 2d 403 (2002) (“As a general rule, pornography

can be banned only if obscene, but under [New York v. Ferber, 458 U.S. 747, 102

S. Ct. 3348, 73 L. Ed. 2d 1113 (1982),] pornography showing minors can be

proscribed whether or not the images are obscene under the definition set forth in

Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973).”). 

Thus, the argument goes, knowledge of age is required for prosecution so as not to

deter constitutionally protected speech. This analysis does not carry over to the

interstate nexus. The line of limitation the Commerce Clause imposes upon

Congressional authority (or that Congress imposes upon itself) is not a line that

distinguishes constitutionally protected from unprotected conduct. Because there

is no First Amendment right to possess child pornography (wholly intrastate or

otherwise), a state’s ability to proscribe child pornography is not dependant upon
21

Congress’s ability or choice to do the same. There is no parallel concern,

therefore, of over-deterring constitutionally protected speech. As such, Smith’s

argument that the prosecution was constitutionally required to prove knowledge of

the interstate nexus cannot withstand plain error analysis, and we therefore have

no need to assess whether sufficient evidence was offered so to prove.

b. 18 U.S.C. § 2251(a)

The argument with respect to 18 U.S.C. § 2251(a) is more easily disposed

of. The text of the statute simply does not provide a basis to conclude that

knowledge of the jurisdictional nexus is plainly required. Section 2251(a) reaches

an individual’s conduct

if such person knows or has reason to know that such visual depiction

will be transported in interstate or foreign commerce or mailed, if that

visual depiction was produced using materials that have been mailed,

shipped, or transported in interstate or foreign commerce by any

means, including by computer, or if such visual depiction has actually

been transported in interstate or foreign commerce or mailed.

18 U.S.C. § 2251(a). The most natural reading of this provision is that jurisdiction

extends to child pornography (1) produced with the intent that it eventually travel

in interstate commerce; (2) produced with materials that have traveled in interstate

commerce; or (3) that has traveled in interstate commerce. Only the first basis for

jurisdiction requires any proof of mental state. We cannot conclude, therefore,
 In his brief, Smith argues that, in order for his 18 U.S.C. § 2251(a) conviction to be 13

constitutionally upheld, the Government also had to prove knowledge of the victim’s age, and

that it failed to do so. At argument on the Rule 29 motion, defense counsel expressly conceded

that the statute on its face did not impose such a requirement, and made no constitutional

objection: “[A]s to Count one . . . it is a strict liability crime, it doesn’t matter if the government

can prove that the photographer knew the age of the model . . . .” Record, vol. 12, no. 107, at 52. 

Thus, we would ordinarily review defendant’s argument that proof of age is required for §

2251(a) for plain error. In this case, however, even if we were to agree with Smith’s position, the

jury found, and we have upheld, that Smith knew the victim was a minor for purposes of the §

2252A(a)(5)(B) conviction. Because any error would therefore necessarily be harmless, we need

not address this claim. In arriving at this conclusion, we do not interpret Smith to be making a

facial challenge to the statute, claiming overbreadth despite the constitutional application in his

particular case. In that context, harmless error analysis would be inappropriate.

Smith also argues, for the first time on appeal, that there was insufficient evidence to

prove that he was “producing” child pornography, because the evidence only demonstrated

personal use, not distribution and sale. As discussed, see infra part III.E.2, we cannot find that it

was plain error to interpret “producing” as not involving a profit motive. Smith’s insufficiency

of the evidence challenge therefore fails as well.

22

that the district court committed plain error by not requiring knowledge of the

interstate nexus. Moreover, for the reasons discussed with regard to 18 U.S.C. §

2252A(a)(5)(B), supra, we cannot say that not having such a requirement

constitutes plain constitutional error. As a result, all of Smith’s claims for

acquittal fail, and we move on to his claims of trial and sentencing error. 13

B. Improper Search and Seizure

Smith argues that the photographs in question were seized pursuant to an

unconstitutional search without a warrant, and therefore should not have been

admitted at trial. The district court determined that the plain view exception to the

warrant requirement authorized the seizure. Review of a district court’s denial of
 “The gravamen of a Fourth Amendment claim is that the complainant’s legitimate 14

expectation of privacy has been violated by an illegal search or seizure.” Kimmelman v.

Morrison, 477 U.S. 365, 374, 106 S. Ct. 2574, 2582, 91 L. Ed. 2d 305 (1986). “The Supreme

Court has enunciated a two-part test to determine whether an individual has a legitimate

expectation of privacy in the object of a search: (1) the individual must manifest a subjective

expectation of privacy in the object of the challenged search, and (2) society must be willing to

recognize that expectation as legitimate.” United States v. Smith, 39 F.3d 1143, 1144 (11th Cir.

1994) (citing California v. Ciraolo, 476 U.S. 207, 211, 106 S. Ct. 1809, 1811, 90 L. Ed. 2d 210

(1986)). The district court, in adopting the magistrate judge’s report and recommendation,

determined that the search was lawful both because the defendant had not manifested a

subjective expectation of privacy in the photographs and because the plain view doctrine

authorized the search and seizure. Because we agree that the plain view doctrine applies, we

express no opinion on the alternate ground for upholding the search.

23

a motion to suppress is a mixed question of law and fact. United States v.

Holloway, 290 F.3d 1331, 1334 (11th Cir. 2002). We review the district court’s

factual findings for clear error and construe those facts in the light most favorable

to the prevailing party. Id. The application of law is reviewed de novo. Id. We

agree with the district court that, because the search of the premises and lockbox

was valid and the seizure was legitimately conducted pursuant to the plain view

doctrine, Smith’s Fourth Amendment rights were not violated and the photographs

were lawfully admitted at trial.

14

The “plain view” doctrine permits a warrantless seizure where (1) an officer

is lawfully located in the place from which the seized object could be plainly

viewed and must have a lawful right of access to the object itself; and (2) the

incriminating character of the item is immediately apparent. Horton v. California,
24

496 U.S. 128, 136-37, 110 S. Ct. 2301, 2308, 110 L. Ed. 2d 112 (1990); United

States v. Hromada, 49 F.3d 685, 690 n.11 (11th Cir. 1995). “The plain view

doctrine allows police officers to seize any contraband in plain view if the officers

have a right of access to the place where the contraband is located.” United States

v. Rodgers, 924 F.2d 219, 221 (11th Cir. 1991). “An example of the applicability

of the ‘plain view’ doctrine is the situation in which the police have a warrant to

search a given area for specified objects, and in the course of the search come

across some other article of incriminating character.” Horton, 496 U.S. at 135,

110 S. Ct. at 2307 (quoting Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S.

Ct. 2022, 2037, 29 L. Ed. 2d 564 (1971) (opinion of Stewart, J.) (internal

quotation marks omitted). The officers, however, must have probable cause to

believe that the object in plain view is contraband. Minnesota v. Dickerson, 508

U.S. 366, 375, 113 S. Ct. 2130, 2137, 124 L. Ed. 2d 334 (1993) (“If . . . the police

lack probable cause to believe that an object in plain view is contraband without

conducting some further search of the object – i.e., if ‘its incriminating character

[is not] “immediately apparent,”’ – the plain-view doctrine cannot justify its

seizure.” (second alteration in original) (citation omitted) (quoting Horton, 496

U.S. at 136, 110 S.Ct., at 2308 (quoting Coolidge, 403 U.S. at 466, 91 S. Ct. at

2038 (opinion of Stewart, J.)))).
25

Here, the officers were lawfully at the Smith residence pursuant to an

unchallenged search warrant authorizing the officers to search for and seize

evidence of illicit drug activity. The warrant specifically authorized the officers to

seize “photographs that would be probative to establish residency.” The officers,

alerted to the lockbox by a narcotics dog, were justified in searching it for

evidence of drugs – either because a lockbox could reasonably contain drugs or

related paraphernalia, United States v. Wuagneux, 683 F.2d 1343, 1352 (11th Cir.

1982) (“[A] search may be as extensive as reasonably required to locate the items

described in the warrant.”), or because the narcotics canine alerted the officers to

the lockbox, United States v. Banks, 3 F.3d 399, 402 (11th Cir. 1993) (“Our circuit

has recognized that probable cause arises when a drug-trained canine alerts to

drugs.”) – or photographs, as authorized by the warrant. It was through the lawful

execution of the warrant that the officers came across the photographs at issue

here. The only remaining question, then, is whether it was immediately apparent to

the officers – whether they had probably cause to believe – that among what they

found in the lockbox, was evidence of child pornography.

“In dealing with probable cause . . . we deal with probabilities. These are

not technical; they are the factual and practical considerations of everyday life on

which reasonable and prudent men, not legal technicians, act. . . . ‘The substance
26

of all the definitions’ of probable cause ‘is a reasonable ground for belief of

guilt.’” Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 1310, 93 L.

Ed. 1879 (1949) (quoting Carroll v. United States, 267 U.S. 132, 161, 45 S. Ct.

280, 288, 69 L.Ed. 543 (1925) (quoting McCarthy v. Dearmit, 99 Pa. 63, 69

(1881) (internal quotation marks omitted))); see also United States v. $242,484.00,

389 F.3d 1149, 1160 (11th Cir. 2004) (en banc). “Although we must decide the

legal issue of whether probable cause exists ourselves, we do give weight to the

inferences that law enforcement agents draw from the facts . . . .” United States v.

$242,484.00, 389 F.3d at 1162. Officer Mayo testified, and the district court

found credible, that some of the girls in the photographs “looked extremely young,

very very young.” He thought it was “very obvious” that the girls were younger

than eighteen. This testimony was confirmed by Detective Julie Dickie, a

detective with extensive experience investigating sex crimes and child abuse. 

Detective Dickie testified that some of the females in the photos were clearly

minors with one likely as young as eleven. Neither Officer Mayo nor Detective

Dickie needed to have been correct in their assessment in order for probable cause

to have existed. Nor must Officer Mayo have been a sex crimes expert – we are

only concerned with what a “reasonable and prudent” officer might have perceived

and inferred. That the district court believed that Officer Mayo saw photographs,
 Smith argues that without viewing the photographs, the court was incapable of 15

determining that it was “immediately apparent” that they were child pornography. Smith points

to no authority, however, nor have we independently discovered any, suggesting that the court

cannot rely on the testimony of witnesses, but must actually view any alleged contraband to

determine if probable cause existed. Indeed, had the officers followed Smith’s preferred course

of action – securing a separate warrant after discovering the photographs – it is extremely

unlikely that the magistrate judge would have observed the photographs prior to issuing the

warrant. We are satisfied, moreover, that the magistrate judge relied upon the testimony of a sex

crimes and child abuse expert in determining whether it could have been obvious to Officer

Mayo that the photographs were of young girls. While it may have been prudent for the

magistrate judge to view the photos independently, we cannot say that, as a matter of law, the

court must view the evidence to determine whether probable cause existed.

27

which he perceived obviously to contain sexually explicit images of very young

girls, is sufficient to make out a “reasonable ground for belief of guilt.”15

Smith makes several other arguments as to why it could not have been

“immediately apparent” to the officers that the photos were evidence of a crime. 

First, he alleges that there was no evidence that the officers knew that Smith’s

conduct met the technical requirements of the statute (namely, that he

“produc[ed]” the photographs as defined in 18 U.S.C. § 2256, that he had the

necessary mens rea, and the photographs either traveled in interstate commerce or

were made using materials that traveled in interstate commerce). As stated,

probable cause is not based on knowledge of legal technicalities, but rather on

whether there is a reasonable ground to believe that a crime has been committed. 

“There is no rule of law which requires an officer to know with absolute certainty

that all elements of a putative crime have been completed when he seizes an article
28

which reasonably appears to be incriminating evidence.” United States v. Slocum,

708 F.2d 587, 605 (11th Cir. 1983) (quoting United States v. Wood, 560 F.2d 660,

664 (5th Cir. 1977)) (internal quotation marks omitted); United States v. Herzbrun,

723 F.2d 773, 775 (11th Cir. 1984) (“[P]robable cause must not be judged with

clinical detachment, but with a common sense view to the realities of normal

life.”). Officer Mayo could reasonably have believed that the sexually explicit

photographs of what he observed to be very young girls were evidence of a crime

– either state, see Fla. Stat. Ann. § 847.0137 (West 2006) (criminalizing

transmission of child pornography as a third degree felony), or federal – without

knowing whether the legal technicalities of those crimes had, in fact, been

satisfied.

Second, Smith contends that because the officers did not look at each photo,

it could not have been “immediately apparent” that the ones not viewed were

evidence of a crime. Even if this were true, the argument would say nothing about

whether it was immediately apparent that the photographs that the officers did

actually view were properly seized. Regardless, this argument has been raised

before and has been rejected by this court. See United States v. Blum, 753 F.2d

999, 1002 (11th Cir. 1985) (“The appellant argues that there is no way the agent

could immediately have recognized a box full of miscellaneous papers as evidence
29

without going through the box and reading each item to determine its evidentiary

importance. . . . Once the agents saw [some of the evidence, however,] the

evidentiary value of these would be apparent.”); United States v. Slocum, 708 F.2d

587, 606 (11th Cir. 1983) (“In these circumstances, to require a seizing officer to

examine individually each document within a file or bound volume ‘would

substantially increase the time required to conduct the search, thereby aggravating

the intrusiveness of the search.’ Since the individual documents contained in the

file could be legitimately seized under the plain view exception, [the officer] acted

reasonably in ordering the seizure of the entire file.” (citations omitted) (quoting

United States v. Wuagneux, 683 F.2d 1343, 1353 (11th Cir. 1982) (quoting United

States v. Beusch, 596 F.2d 871, 876 (9th Cir. 1979) (internal quotation marks

omitted)))). Nor is it problematic that some of the pictures turned out to be of

adult women – the scope of the “plain view” doctrine extends to the seizure of

items that, while not contraband themselves, may be used as evidence against a

defendant. See United States v. Ladson, 774 F.2d 436, 439 (11th Cir. 1985)

(stating that, for the plain view exception to apply, “it must have been immediately

apparent that the item was evidence, contraband or otherwise subject to seizure”

(emphasis added)). Accordingly, Office Mayo did not need to know if all the

photographs were of child pornography. For that matter, he did not need to know
30

that any were of child pornography. Rather he had to have had probable cause to

believe that among the photographs, some were illegal. Having seen photos he

reasonably believed to be child pornography, he had probable cause to presume,

without going through each individually, that there were others among the group

of photographs in the same lockbox that were either themselves child pornography

or evidence thereof.

Finally, Smith relies on the fact that the testimony differed regarding the

number of pictures seized – ranging from 200 to 500 at the suppression hearing to

1,768 at trial – and no accounting of what was seized, to challenge the officer’s

assertion that it was “immediately apparent” that the photographs were illicit. In

Smith’s view, if the number of photos was not “immediately apparent,” there is

nothing about them that could reliably be considered immediately apparent. We

believe, however, that the discrepancy in testimony goes solely to the credibility of

the witnesses – the (ir)reliability of whom does not necessarily extend from the

number to the nature of the photographs. Even if we could presume that the

numerical discrepancy makes the officers’ testimony with respect to the number of

photographs inherently unreliable, we cannot presume that the court committed

clear error in crediting the officers’ testimony in finding that it was “immediately

apparent” that some of the photos – however many there were – were child
31

pornography.

Because the officers could lawfully search the premises, the lockbox, and

the photographs, and because the district court could reasonably find that it was

“immediately apparent” to the officers that the photographs were evidence of a

crime, their seizure was authorized by the plain view doctrine and they were

lawfully admitted into evidence.

C. Improper Out-of-Court Identification

Smith next claims that the victim’s out-of-court identification, which was

followed at trial by an in-court identification by the witness, should have been

suppressed, because the identification procedure was impermissibly suggestive

and created a substantial likelihood of misidentification thereby depriving Smith

of his right to due process. The district court refused to suppress this evidence. 

The standard of review is the same as above: the facts are reviewed for clear error

and the district court’s application of the law to those facts are reviewed de novo.

“[C]onvictions based on eyewitness identification at trial following a

pretrial identification by photograph will be set aside on that ground only if the

photographic identification procedure was so impermissibly suggestive as to give

rise to a very substantial likelihood of irreparable misidentification.” Simmons v.

United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247 (1968);
32

see also Jones v. Kemp, 794 F.2d 1536, 1539 (11th Cir. 1986) (“A pretrial

identification and subsequent in-court identification may amount to a due process

violation if the pretrial procedure was ‘unnecessarily suggestive and conducive to

irreparable mistaken identification.’” (quoting Stovall v. Denno, 388 U.S. 293,

302, 87 S. Ct. 1967, 1972, 18 L. Ed. 2d 1199, 1206 (1967))). Smith, however,

does not allege that the in-court identification was tainted by what he considers to

be the impermissibly suggestive pretrial identification procedure. See Record, vol.

9, no. 69 at 74-75. Rather, we interpret Smith’s argument to be that the

identification resulting from the allegedly unconstitutional identification

procedure impermissibly bolstered the unchallenged in-court identification and

therefore should have been suppressed. As a result, we need not concern

ourselves with whether the alleged error was so great as to lead irreparably to a

mistaken in-court identification. See Neil v. Biggers, 409 U.S. 188, 198, 93 S. Ct.

375, 382, 34 L. Ed. 2d 401 (1972) (“While the phrase [‘a very substantial

likelihood of irreparable misidentification’] was coined as a standard for

determining whether an in-court identification would be admissible in the wake of

a suggestive out-of-court identification, with the deletion of ‘irreparable’ it serves

equally well as a standard for the admissibility of testimony concerning the

out-of-court identification itself.”).
33

Out-of-court identifications are examined for due process violations using a

two-part test: “The court must first decide whether the [procedure] was

impermissibly suggestive, and if it was suggestive the court must then determine

whether the identification procedure created a substantial likelihood of

misidentification.” United States v. Russo, 796 F.2d 1443, 1452 (11th Cir. 1986). 

Smith contends that the identification procedure was impermissibly suggestive

because, at the time of the pre-trial identification, the victim was in custody for a

probation violation, and was shown several naked pictures of herself, the

defendant, and other females. In this context, according to Smith, the victim, not

knowing whether she had committed a crime, was likely to say whatever was

necessary to avoid further trouble for herself. The district court disagreed with

Smith’s argument, and we cannot say that there was clear error in any of the

court’s factual findings that would lead to the conclusion that the procedure was

impermissibly suggestive.

The district court found that the officers who showed the pictures to the

victim only asked whether she was able to identify anyone in any of the pictures. 

The officers were hoping the victim could identify other girls in the photographs,

not just Smith. As such, they never asked the victim if the photographer was in

any of the pictures. The district court found that, while looking at the pictures, the
 Smith also argues that the district court should have required the victim to testify 16

before adopting the magistrate judge’s report and recommendation. There is no requirement,

however, that certain types or forms of evidence must be heard before a motion to suppress

evidence can be resolved. We conclude, therefore, that the court could have determined that the

identification procedure was not impermissibly suggestive without hearing directly from the

victim. Additionally, in considering Smith’s argument, we are not confined to the evidence

presented at the suppression hearing: “‘[I]n ruling on the correctness of the trial court’s denial of

a motion to suppress,’ . . . we ‘may consider any evidence presented at the trial of the case and

[are] not limited to the evidence introduced [at] the hearing on the motion.’” United States v.

Villabona-Garnica, 63 F.3d 1051, 1056 (11th Cir. 1995) (second alteration added) (quoting

United States v. Soto, 591 F.2d 1091, 1098 n. 5 (5th Cir.) (quoting United States v. Griffin, 555

F.2d 1323, 1326 n. 3 (5th Cir. 1977)) (internal quotation marks omitted)). In this regard, the

victim’s testimony at trial substantially corroborated Detective Dickie’s account of the

identification procedure. 

34

victim held up one and “spontaneously” identified Smith as the photographer. 

Detective Dickie testified that the victim continued to look through pictures after

she had identified Smith and continued to single out Smith from among the

pictures as the man who had taken the photographs. Thus, given the totality of

circumstances, we cannot say that the fact that the victim was in custody at the

time of the identification necessarily transformed an otherwise spontaneous

identification into one arising out of an impermissibly suggestive procedure. 

Because we find that the procedure was not impermissibly suggestive, we need not

determine whether the procedure created a substantial likelihood of

misidentification.16

D. Evidentiary Rulings

Smith claims that certain evidence at trial was either irrelevant, or if
35

relevant, “substantially outweighed by the danger of unfair prejudice,” Fed. R.

Evid. 403, and therefore should not have been admitted. He also contends that the

court should not have admitted other-crimes evidence under Federal Rule of

Evidence 404(b) and opinion evidence under Federal Rule of Evidence 701. 

While some of this evidence was admitted over Smith’s objection at trial, other

evidence is being challenged for the first time on appeal and is therefore subject to

plain error review. Our analysis is organized accordingly.

1. Objections Raised at Trial

Smith objected to the following evidence as either irrelevant, see Fed. R.

Evid. 401, 402, or overly prejudicial, see Fed. R. Evid. 403: (1) photographs of

Smith naked by himself; (2) photographs of Smith with other women (not the

victim) engaged in sexually explicit conduct; and (3) photographs of women (not

the victim) striking sexually suggestive positions. We review the district court’s

evidentiary rulings for clear abuse of discretion. United States v. Tinoco, 304 F.3d

1088, 1119 (11th Cir. 2002). “An abuse of discretion arises when the district

court’s decision rests upon a clearly erroneous finding of fact, an errant conclusion

of law, or an improper application of law to fact.” United States v. Baker, 432

F.3d 1189, 1202 (11th Cir. 2005). “The district court possesses broad discretion

to admit evidence if it has any tendency to prove or disprove a fact in issue. 
36

Conversely, we are mindful that the court’s discretion to exclude evidence under

Rule 403 is narrowly circumscribed. ‘Rule 403 is an extraordinary remedy[,]

which should be used only sparingly since it permits the trial court to exclude

concededly probative evidence.’ The balance under the Rule, therefore, should be

struck in favor of admissibility.” United States v. Norton, 867 F.2d 1354, 1361

(11th Cir. 1989) (citations omitted) (quoting United States v. Betancourt, 734 F.2d

750, 757 (11th Cir. 1984)). Accordingly, we “look at the evidence in a light most

favorable to its admission, maximizing its probative value and minimizing its

undue prejudicial impact.” United States v. Elkins, 885 F.2d 775, 784 (11th Cir.

1989).

We cannot hold that the district erred in concluding that the challenged

evidence was relevant. The pictures of Smith were the ones the victim singled out

as photographs of the photographer. Given that Smith’s defense was that another

person took the pictures, these photographs were certainly relevant in establishing

the photographer’s identity. The pictures of Smith engaged in sexual acts with

other women in a room identical to the one in which the victim was photographed

were also relevant in establishing Smith’s role in producing the photographs of the

victim – the fact that he had appeared in pictures of a sexual nature in what

appeared to be the same location could make it more probable that he frequented
 18 U.S.C. § 2251(a) prohibits production of visual depictions of “sexually explicit 17

conduct” involving minors, and 18 U.S.C. § 2252A(a)(5)(B) prohibits the knowing possession of

“child pornography,” which 18 U.S.C. § 2256(8) defines, in part, as involving “sexually explicit

conduct.” The court instructed the jury, without objection, that sexually explicit conduct

included “lascivious exhibition,” which, the court explained, involved consideration of “whether

the setting of the depiction is such as to make it appear to be sexually inviting or suggestive, for

example in a location or in a pose associated with sexual activity . . .[;] and whether the depiction

has been designed to elicit a sexual response in the viewer.” Record, vol. 12, no. 107 at 74. That

the photographs of the victim were found with other sexually explicit photographs could make it

more likely that their purpose was to elicit a sexual response.

37

the locale for similar purposes. Additionally, these pictures, as well as the pictures

of other women in similar poses in the same setting as those of the victim, were

relevant to establishing that the pictures of the victim included “lascivious

exhibition[s] of genitals or pubic area of any person,” 18 U.S.C. § 2256(2)(A)

(defining “sexually explicit conduct”), and that Smith “knowingly,” as opposed 17

to inadvertently, possessed the pictures of the victim as required by 18 U.S.C. §

2252A(a)(5)(B). Because the district court could have found that these pictures

had some tendency to make Smith’s defense less probable and the statutory

requirements more probable, we do not find that court abused its discretion in

finding them relevant under Federal Rule of Evidence 401.

We also cannot say that the district court abused its discretion in finding

that the probative value of the questioned evidence was not substantially

outweighed by any potential for unfair prejudice, see Fed. R. Evid. 403,

particularly in light of the presumptions in favor of admissibility stated above. 
38

Smith contends that the naked pictures of himself, pictures of other women, and

pictures of Smith with other women were likely to inflame the jurors’ emotions

and prevented a level-headed evaluation of all the evidence. That is a permissible

conclusion but not a necessary one. The jury might also have been able to

evaluate the evidence for what it was – photographs from within defendant’s

lockbox that tended to establish identity, knowledge, and sexual content. That the

nature of the crime itself, and therefore the nature of the evidence tending to prove

it, is emotionally charged does not mean that the prosecution must be deprived of

its most probative evidence. This is particularly true when the district court, as

here, offers limiting instructions as to the proper purpose of admitted evidence. 

Thus, when we maximize the probative value discussed above and minimize any

prejudicial impact, we cannot conclude that the district court clearly abused its

discretion in admitting the evidence.

2. Plain Error

Smith alleges that the following evidence should not have been admitted

despite his failure to object at trial: (1) Smith’s inmate discharge identification

card; (2) repeated references to the fact that Smith was and is incarcerated; (3) an

“unsanitized” (non-redacted) recording and transcript of a phone call made by

Smith, while incarcerated, to his mother; (4) Officer Mayo’s testimony that the
 Smith alleges that the inmate discharge identification card, as well as the repeated 18

references to his incarceration, including Smith’s unsanitized phone conversation from jail, were

improperly admitted as “other crimes” evidence. “Evidence of other crimes, wrongs, or acts is

not admissible to prove the character of a person in order to show action in conformity

therewith.” Fed. R. Evid. 404(b). We cannot say that this evidence was plainly admitted as

propensity evidence. The district court assuredly could have found the evidence to be probative

of identity and/or merely descriptive.

Smith also claims that Officer Mayo’s testimony that the photographs he observed in the

lockbox were pornographic in nature and of “very, very young girls” was opinion evidence

offered by a non-expert. We are not satisfied that Officer Mayo’s opinion was plainly “scientific,

technical, or . . . specialized,” Fed. R. Evid. 701, which would have required him to be qualified

as an expert pursuant to Federal Rule of Evidence 702, rather than the opinion of a lay witness

admissible pursuant to Federal Rule of Evidence 701. Smith, therefore, cannot establish error on

this ground.

Additionally, Smith argues that the incarceration evidence, Officer Mayo’s opinion

testimony, as well as testimony regarding the number of photographs and a description of the

anatomical components of a particular photograph, even if otherwise admissible, were

substantially more unfairly prejudicial than probative in violation of Federal Rule of Evidence

403. All of this evidence could be considered probative in establishing the identity of individuals

in the photographs, the ownership and nature of the photographs and the context surrounding

39

pictures he found were pornographic and of young girls; (5) testimony regarding

the number of photographs found in the lockbox; and (6) testimony about a

particular photograph depicting two penises. “[W]hen a party raises a claim of

evidentiary error for the first time on appeal, we review it for plain error only.”

Baker, 432 F.3d at 1202. For ease of reading and clarity of discussion, we repeat

that standard here: if there is error that is plain, and that affects substantial rights,

we may exercise our discretion to recognize such an error, so long as it seriously

affects the fairness, integrity, or public reputation of judicial proceedings. We

have no trouble concluding that Smith cannot satisfy this difficult burden and

therefore limit ourselves to a brief discussion of Smith’s claims in the margin.

18
other probative evidence. We cannot say that any of the evidence, even if prejudicial, was

plainly unfairly prejudicial let alone plainly so unfairly prejudicial as to substantially outweigh its

probative value.

 “You may consider this evidence . . . only for the limited purpose of determining 19

whether the identity of the defendant as the perpetrator of the crime charged has been

established.” Record, vol.12, no. 107, at 70 - 71.

40

E. Other Claims Not Raised at Trial

Smith raises several more issues not preserved at trial. These too are

reviewed for plain error. 

1. Lack of Adequate Limiting Instruction

Smith argues that the district court did not provide an adequate limiting

instruction with regards to the evidence he challenges in part III.C, supra. The

district court did provide a limiting instruction with respect to the photographs of

persons other than the victim. As to the remainder of the evidence, because 19

Federal Rule of Evidence 105, which provides for limiting instructions in

appropriate circumstances, only operates “upon request,” see Fed. R. Evid. 105,

“[t]he failure to give a limiting instruction is error only when such an instruction is

requested.” United States v. Miranda, 197 F.3d 1357, 1360 (11th Cir. 1999). 

Thus, we find no plain error.

2. Jury Instruction Regarding “Producing”

Smith argues that the district court erred by not providing a jury instruction
 A definition of “produce” published contemporaneously to the passage of the 20

Protection of Children Against Sexual Exploitation Act of 1977, Pub. L. No. 95-225, § 2(a), 92

Stat. 7 (1998), provides in relevant part: “1. To bring forth; yield. 2. To create by mental or

physical effort. 3. To manufacture. 4. To cause or occur to exist; give rise to. 5. To bring forward;

exhibit. 6. To sponsor and present to the public . . . .” The American Heritage Dictionary of the

English Language (New College ed. 1976).

41

defining “producing” as used in 18 U.S.C. § 2251(a). “Producing” is statutorily

defined, somewhat circularly, as “producing, directing, manufacturing, issuing,

publishing, or advertising.” 18 U.S.C. § 2256(3). “It is well settled that a court

need not define terms that are not unduly technical or ambiguous or that are within

the common understanding of the jury.” United States v. Pepe, 747 F.2d 632, 674

n.78 (11th Cir. 1984). We do not believe that “producing” is so unduly technical

or ambiguous as plainly to require a specific instruction. Smith contends,

however, that because “producing” necessarily requires an individual to be in the

business of making child pornography, a definition was plainly in order. 

Nowhere in the statutory definition or the common understanding of the word

“producing” do we discern a requirement of a monetary profit motive. Thus, 20

even if “producing,” as used in the statute, did require the accused to be in the

pornography business – a proposition about which we are quite skeptical – it is not

obviously so. Accordingly, the district court did not plainly err by not defining
 Smith also claims that the district court committed plain error by not instructing the 21

jury that “knowingly” applies to each of the statutory elements of both 18 U.S.C. § 2251(a) and §

2252A(a)(5)(B). We note at the outset that, with respect to § 2252A(a)(5)(B), the jury was

properly instructed that the Government had to prove that the defendant knew he was possessing

child pornography. Because, as discussed, supra part III.A.2,we do not find that there was plain

error committed in not requiring knowledge of the interstate nexus, we cannot say the district

court committed plain error in not instructing the jury as such. Similarly, as indicated above,

supra note 13, even if we were to find plain error in the district court’s failure to instruct the jury

that proof of knowledge of age is required for § 2251(a), it would be harmless error in light of the

jury’s finding, based on proper instruction and adequate evidence, that Smith knew the age of the

victim for purposes of § 2252A(a)(5)(B).

 According to the statute effective at the time, the enhancement increased the sentencing 22

range from ten-to-twenty years to fifteen-to-thirty years. 18 U.S.C.A. § 2251(d) (West, Westlaw

through Apr. 2003 amendments).

42

“producing” for the jury.21

3. Lack of Notice Regarding Mandatory Sentencing Minima

Smith additionally argues that, prior to sentencing, he was not given formal

notice of either (1) the enhanced sentencing range arising from a prior conviction

“relating to the sexual exploitation of children,” 18 U.S.C.A. § 2251(d) (West,

Westlaw through Apr. 2003 amendments); or (2) the requirement that he register 22

as a sex offender as a condition of his supervised release, and requests

resentencing. At arraignment on the initial indictment, the court advised Smith

that the § 2251(a) charge carried a ten-year minimum and twenty-year maximum

sentence. At arraignment on the superseding and second superseding indictments,

Smith waived formal readings of the indictments. At no point prior to receiving

the presentence report was he advised that he might face anything more than a ten-
43

to-twenty-year sentence. This, according to Smith, was a violation of his

constitutional right to due process.

Smith cites no cases, and we are aware of none, that mandate a formal

reading of the Federal Sentencing Guidelines. The statute under which he was

charged, 18 U.S.C. § 2251, specifically delineates the sentencing range for

violations of its provisions, both with and without prior offenses relating to sexual

exploitation of children. Moreover, 18 U.S.C. § 3583(d) mandates registration as

a condition of supervised release for any person described in 18 U.S.C. §

4042(c)(4), a category of persons that includes individuals convicted of offenses

categorized as “Sexual Exploitation and Other Abuse of Children” (including both

18 U.S.C. § 2251 & 2252A). 18 U.S.C. § 4041(c)(4), 18 U.S.C. ch. 110; USSG §

5D1.3(7). The statutory scheme therefore mandated Smith’s sentence, and we

cannot say that the court plainly erred by not providing additional notice of the

minimum sentencing provisions.

IV.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.
 I also recognize that the discussion that follows does not neatly fit into circumstances

1

where it only becomes plain that evidence is excludable after trial but prior to appeal.

44

TJOFLAT, Circuit Judge, specially concurring:

I obviously concur in the court’s judgment in its entirety. I write separately

to explain why I believe appellate courts so rarely – and, in my view, should only

rarely – notice plain evidentiary errors. I arrive at this conclusion based on the

interaction between the plain error standard and the inferences that should be

drawn from defense counsel’s failure to object at trial.

I note, initially, the limited scope of my discussion. I discuss only the

admission of evidence by the prosecution, over no objection, in criminal cases. 

There is no need to address exclusion of evidence offered by the defendant (as the

attempted introduction of the evidence would sufficiently raise the issue for full

review on appeal) or evidentiary rulings in favor of the defendant (as the

prosecution cannot appeal). I am only concerned with criminal cases as I believe

that it is only the defendant’s Sixth Amendment right to counsel that provides any

basis for plain error review. As such, everything I say here applies with even

greater force in the civil context where there is no constitutional right to an

attorney.1

To begin, I recite what should now be a familiar standard: Under plain error
45

review, an appellate court may exercise its discretion to notice an error that is

plain and that affects substantial rights, so long as the error affects the fairness,

integrity, or public reputation of judicial proceedings. It should be immediately

apparent that the standard itself sets an extraordinarily difficult burden for a

defendant to overcome – particularly in instances where the district court has

substantial discretion to admit evidence (for example, where the defendant claims

that the probative value of a piece of evidence is substantially outweighed by its

potential for unfair prejudice, see Fed. R. Evid. 403). Evidentiary rulings, of

which counsel and the trial judge should have been aware, are often quite caseand fact-specific and it is therefore unlikely that a defendant would be able to

point to a court decision or evidentiary rule making the admission of the evidence

obviously erroneous. Despite this difficulty, there certainly are circumstances in

which an appellate court could say that, given extant case law at the time of

appeal, a piece of evidence admitted at trial was clearly excludable (e.g., hearsay

that is not otherwise admissible under Federal Rules of Evidence 803 or 804). I

do not believe, however, that even such circumstances are properly recognizable

as plain error.

What is often overlooked in the rote application of the plain error standard

is that, without objection, it is almost impossible to conclude that the district court
 The decision not to object to evidence offered for admission is an aspect of trial strategy

2

that counsel may make on behalf of the defendant. See Henry v. State of Mississippi, 379 U.S.

443, 451-52, 85 S. Ct. 564, 569, 13 L. Ed. 2d 408 (1965); 3 Wayne R. La Fave et al, Criminal

Procedure § 11.6 (2d ed. 2006) (“General agreement exists that the decisions as to guilty plea,

jury trial, appeal, defendant’s presence at trial, and the defendant testifying are for the defendant,

and that decisions on a substantially larger group of matters, such as objecting to inadmissible

evidence, are for counsel.” (footnote omitted)). Accordingly, the defendant is bound by the

strategic evidentiary decisions made by counsel, so long as effective assistance is provided.

 We have been willing to recognize that the possibility for strategic non-objection 3

renders nearly impossible a finding of plain error in the context of a failure to request a limiting

instruction. “Lawyers frequently choose for strategic reasons not to request limiting instructions. 

In order to find plain error in this context, therefore, a court must conclude that, as a matter of

46

committed error at all. It is one thing to say that evidence, if objected to, should

have been excluded; it is quite another to say that admission of evidence over no

objection is error in some abstract sense. The error in the former circumstance is

the district court’s failure to sustain the defendant’s objection; in the latter, the

error is evidently the improper infringement upon a defendant’s unwaivable right

to be tried only by admissible evidence. The problem with the second formulation

is that defense counsel can waive evidentiary restrictions, and often has legitimate

strategic reasons for doing so. Defense counsel may believe, for example, that a

piece of evidence will turn out to be exculpatory rather than inculpatory, or

counsel may want to tie a witness to certain statements. Reviewing admission of 2

evidence for plain error, however, can serve to transform defense counsel’s

strategic decisions into district court errors. Trial counsel’s sound strategy does

not become plain error at appellate counsel’s urging.3
law, counsel’s strategic choice resulted in a manifest miscarriage of justice.” Sherman v. Burke

Contracting, Inc., 891 F.2d 1527, 1534 (11th Cir. 1990), superseded in non-relevant part by

statute as stated in Andrews v. Lakeshore Rehabilitation Hosp., 140 F.3d 1405 (11th Cir.1998);

see also United States v. Miranda, 197 F.3d 1357, 1360 (11th Cir. 1999) (“The failure to give a

limiting instruction is error only when such an instruction is requested.”); United States v.

Peaden, 727 F.2d 1493, 1501 (11th Cir. 1984) (“In determining whether the statement requires

reversal because no limiting instruction was in fact given, we must first decide at whose door we

lay the failure to give the instruction. If the court committed plain error in failing to recognize

the need for the limiting instruction sua sponte, we must reverse. However, if Peaden was

required to request the instruction, his failure to do so caused its absence. Since for strategic

reasons counsel may have chosen not to request an instruction, we would be reluctant to

determine as a matter of law that counsel’s strategic choice gave rise to a due process violation.”

(citations omitted)); United States v. Barnes, 586 F.2d 1052, 1059 (5th Cir. 1978) (“Counsel

may refrain from requesting an instruction in order not to emphasize potentially damaging

evidence and for other strategic reasons. We decline to second guess counsel’s decision.”

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

adopted as binding precedent the decisions of the former Fifth Circuit handed down prior to

October 1, 1981.). I recognize that plain error review is more patently incompatible with the

evidentiary rule in this context, as the rule only operates “upon request.” Fed. R. Evid. 105; see

Sherman, 891 F.2d at 1534. I believe, however, the observations regarding strategic nonobjection carry over into other evidentiary contexts as well.

47

A conclusion that the admission of certain evidence constitutes plain error is

a determination that the evidence was so obviously inadmissible and prejudicial

that, despite defense counsel’s failure to object, the district court, sua sponte,

should have excluded the evidence. Thus, the existence of plain error review

forces the district court, in an effort to avoid the reversal of conviction and a

retrial, to intervene and exclude the evidence on its own initiative. In determining

whether to do so, the district court must either ignore the possibility that defense

counsel is choosing not to object for strategic reasons (and therefore intervene in

every instance) or must weigh that possibility against the potential time and cost of
 I suppose a trial court could also keep a running log of all inadmissible evidence and at 4

the end of trial determine which pieces, in isolation or in tandem, are likely substantially to affect

the defendant’s rights and strike those pieces with enough surgical precision to foreclose

appellate reversal. I believe, more realistically, a trial court would simply always intervene.

 It would also not be sufficient for the district court to call attention to the excludability 5

of the evidence and force defense counsel to waive exclusion. Such a requirement may

inappropriately force defense counsel to expose his defense strategy to the Government. Nor

would it be appropriate to require the court to hold a sidebar conference, out of the presence of

the prosecutor, to inform defense counsel that the court believes an offered piece of evidence

unduly prejudices the defendant and inquire of counsel how the admission of the evidence fits

into a competent defense strategy.

48

a retrial (assuming one is even possible under the circumstances). To the extent

the district court even attempts the latter analysis, however, it does so at a specific

moment during the course of the trial without the benefit of the entire record (in

particular, what other evidence the prosecution is prepared to offer, and what use

the prosecution or defense intends to make of the evidence). Because it is

extraordinarily difficult, if not impossible, to deterimine, mid-trial, whether the

admission of a certain piece of excludable evidence prejudices a defendant’s

substantial rights, the possibility of a retrial creates an incentive for the district

court always to intervene. This result essentially deprives defense counsel of the 4

ability to determine strategically a client’s most effective defense – a consequence

I would prefer to avoid. Cf. Estelle v. Williams, 425 U.S. 501, 512, 96 S. Ct.

5

1691, 1697, 48 L. Ed. 2d 126 (1976) (“Under our adversary system, once a

defendant has the assistance of counsel the vast array of trial decisions, strategic
49

and tactical, which must be made before and during trial rests with the accused

and his attorney. Any other approach would rewrite the duties of trial judges and

counsel in our legal system.”).

I should be quick to add that I hold no illusions of infallibility with respect

to the legal profession. In some cases, defense counsel may actually fail to notice

that inadmissible evidence is being admitted. In others, however, counsel may

make a strategic decision not to object to the admission of evidence. The role of

an appellate court under plain error review, therefore, is to sort out the error from

the strategy, to the extent strategy is considered at all. This is a role for which

appellate courts are particularly ill-suited. I believe our ineffective assistance of

counsel case law is instructive in this regard.

Ineffective assistance claims invariably involve a determination of whether

an attorney was acting strategically or incompetently. We have appropriately

concluded that such determinations ought not to be made on direct appeal. See

United States v. Griffin, 699 F.2d 1102, 1107 (11th Cir. 1983) (“The law of this

Circuit is that claims of inadequate representation cannot be determined on direct

appeal where such claims were not raised before the District Court and there has

been no opportunity to develop and include in the record evidence bearing on the

merits of the allegations.”); id. at 1107-09. Without factual development, it is
50

nearly impossible for an appellate court to determine whether or not counsel’s

decisions were strategic or to assess the overall quality of counsel’s representation. 

See, e.g., United States v. Prince, 456 F.2d 1070, 1070-71 (5th Cir. 1972)

(“[Defendant] can not properly raise the issue of the adequacy of counsel for the

first time on direct appeal. The record now before us does not present sufficient

facts for a proper resolution and determination of that issue. The question was not

raised in the district court and no facts bearing upon the subject were presented to

the trial court. The government has not had an opportunity to present evidence

opposing the claims of [defendant] that his attorney was ineffective.”). Similarly,

in the context of plain error review of “improperly” admitted evidence, it is

extremely difficult, although not impossible, to determine whether counsel’s

failure to object to the admission of excludable evidence was error or strategy. Cf.

Flores v. Estelle, 513 F.2d 764, 770 (5th Cir. 1975) (Goldberg, Circuit Judge,

dissenting) (“Nor is this even a case in which we might reasonably judge that

counsel silently disregarded the point as a tactical gambit in a complex trial: there

was only one question at issue and that issue was being proved by the State

entirely through hearsay. In such a context, and where the objective events

recorded in the transcript lend speculation no support, I am unwilling to attribute

imaginary waiver strategies into the consciousness of counsel which any realistic
51

conception of the circumstances of the hearing fairly assures were not there.”

(footnote omitted)). Given the factual dependency of this determination, I do not

believe appellate courts should find plain evidentiary error – save for the extreme

case where there could be no reasonable strategic reason for declining to object at

the time the evidence is admitted. There is a forum better suited for this purpose –

namely a collateral attack proceeding on a claim of ineffective assistance of

counsel.

Moreover, were we to review claims of evidentiary error without factoring

in the strategic reasons not to object (i.e., by simply applying the plain error

doctrine and assuming that all excluded evidence admitted with no objection is

error), we would, in fact, be providing defense counsel with a strategic reason not

to object. Despite our stated concern about ensuring that plain error review does

not, in effect, serve as a trial strategy, see, e.g., United States v. Brown, 548 F.2d

1194, 1207 (5th Cir. 1977) (noting that the plain error standard is strict “in order

to . . . prevent parties from gambling for favorable verdicts and then resorting to

appeal on errors that might have easily been corrected by objection at trial”

(quoting United States v. Jacquillon, 469 F.2d 380, 386 (5th Cir. 1972)) (internal

quotation marks omitted)), plain error review in this context does precisely that. 

Defense counsel may choose not to object to the admission of certain evidence –
 Indeed, by reversing the conviction under plain error review as opposed to a finding of 6

ineffective assistance of counsel, we misallocate responsibility for the error to the court as

opposed to counsel, where it appropriately belongs. Any diligence incentive inspired by fear of

being labeled “ineffective” is thereby eliminated. For more on the interconnection between plain

error and ineffective assistance, see infra.

52

perhaps believing it may turn out to be exculpatory – with the understanding that,

if wrong, the defendant will have an opportunity to challenge the admission of the

evidence on appeal. Where we find evidence of this strategy in the record, we do

not find plain error. United States v. Sisto, 534 F.2d 616, 624 n.9 (5th Cir. 1976)

(“If the record indicates that counsel for the complaining party deliberately

avoided making the proper objection or request, plain error will almost never be

found. This court will not tolerate ‘sandbagging’ defense counsel lying in wait to

spring post-trial error.”). As previously mentioned, however, appellate courts are

poorly situated to discern litigation strategy, and unless defense counsel feels the

need to disclose his strategy on the record, plain error review provides a strategic

hedge against potentially risky litigation decisions, and encourages defense

counsel not to object to inadmissible evidence – at least at the margins.6

Presented, then, with the choice between (1) presuming legitimate strategy

and finding error in the extreme case and (2) presuming error and rarely finding

improper strategy, I choose the former. I arrive at this conclusion by borrowing

further from our ineffective assistance case law. As is oft stated, we generally
53

presume that lawyers perform competently. See, e.g., United States v. Cronic, 466

U.S. 648, 658, 104 S. Ct. 2039, 2046, 80 L. Ed. 2d 657 (1984) (“[W]e presume

that the lawyer is competent to provide the guiding hand that the defendant

needs.”); Bell v. Cone, 535 U.S. 685, 718, 122 S. Ct. 1843, 1863, 152 L. Ed. 2d

914 (2002) (Stevens, J., dissenting) (“[A] presumption that every lawyer . . . has

performed ethically, diligently, and competently is appropriate because such

performance generally characterizes the members of an honorable profession.”). 

We have recently noted: 

“[C]ounsel will not be deemed unconstitutionally deficient because of

tactical decisions.” There is a strong presumption that counsel’s

performance was reasonable and adequate, with great deference being

shown to choices dictated by reasonable strategy. “The presumption of

reasonableness is even stronger when we are reviewing the performance of

an experienced trial counsel.” To overcome this presumption, the petitioner

“must establish that no competent counsel would have taken the action that

his counsel did take.”

Michael v. Crosby, 430 F.3d 1310, 1320 (11th Cir. 2005) (citations and paragraph

break omitted) (quoting McNeal v. Wainwright, 722 F.2d 674, 676 (11th Cir.

1984) (citations omitted); Callahan v. Campbell, 427 F.3d 897, 933 (11th Cir.

2005); Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000) (en banc)

(footnote and citation omitted)). I believe this presumption is just as relevant in

the plain error context as in the ineffective assistance context. As such, so long as
 “To prove ineffective assistance of counsel, [defendant must] establish ‘both that 7

counsel’s performance was deficient and that the deficient performance prejudiced the defense.’”

Rolling v. Crosby, 438 F.3d 1296, 1300 (11th Cir. 2006) (quoting Maharaj v. Sec’y for Dep’t of

Corr., 432 F.3d 1292, 1318 (11th Cir.2005). In concluding that the first three prongs of plain

error are satisfied, we determine that counsel made an obvious error that affected defendant’s

substantial rights. To the extent the doctrines of ineffective assistance and plain error are not

perfectly coterminous, they certainly overlap significantly.

54

we are unable to take judicial notice that no competent attorney would fail to

object to the admission of certain evidence, I would not say that the district court’s

failure sua sponte to intervene and exclude the evidence is error.

Not only do I believe that our ineffective assistance case law is instructive

as to how we should treat claims of plain evidentiary errors, but I also believe that

there is a connection between the two issues that is rarely, if ever, discussed. In

order to satisfy the first three prongs of the plain error standard, we would have to

find: error, that should have been obvious to counsel, and that seriously prejudiced

the defendant’s substantial rights. In other words, counsel was incompetent for

not having objected. In fact, counsel may have been incompetent as many as 7

three times (once at the time of the evidence was admitted, once more when he

failed to move to strike the evidence, and yet again during closing argument

should the Government comment on the evidence) or perhaps only once but as late

as closing argument when the previously latent prejudice became clear. Yet, if we

then choose not to exercise our discretion to notice the error, or if we could not say
 I note that, even if it were possible for us to conclude that there was plain error that 8

affected defendant’s substantial rights, it would still be nearly impossible to find that the plain

error standard was satisfied. It would be very difficult to conclude that the fairness, integrity, or

public reputation of the judicial proceedings had been undermined where defense counsel, whom

we presume to be competent, declined not once, but perhaps three times, to object to the

admission of the evidence. Again, to the extent we believe this failure to object speaks to

counsel’s competence, collateral review provides a more appropriate forum to resolve that issue.

55

that the error affected the fairness, integrity, or public reputation of judicial

proceedings, plain error would not be found. Thus, we would not order a retrial 8

on direct appeal, but, without the benefit of briefing or factual development, we

would essentially be providing a very firm grounding for a subsequent ineffective

assistance determination on collateral attack. What makes this particularly

troubling for me is that in an ineffective assistance claim, “the defendant must

overcome the presumption that, under the circumstances, the challenged action

‘might be considered sound trial strategy.’” Maharaj v. Sec’y for Dept. of Corr.,

432 F.3d 1292, 1318 (11th Cir. 2005) (quoting Strickland v. Washington, 466 U.S.

668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674 (1984) (quoting Michel v.

Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164, 100 L. Ed. 83 (1955)) (internal

quotation marks omitted)). Yet, because we would not find plain error if we were

to believe that defense counsel strategically chose not to object, a finding of plain

error that affects defendant’s substantial rights – a determination likely made with

no consideration of strategy and certainly made with no stated presumption in
56

favor of strategy – at least implies that defense counsel’s failure to object was not

strategic. Consequently, in such circumstances, there is a strong argument to be

made that we unwittingly shifted the presumption on collateral attack from

strategy to incompetence. The justification for this result is not apparent to me.

For the foregoing reasons, I would not engage in plain error review of the

admission of excludable evidence unless I were certain that there could be no

reasonable strategic reason for not objecting at the time the evidence was

admitted.