NOT FOR PUBLICATION FILED FEB 16 2024 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-30163
Plaintiff-Appellee, D.C. No. 4:21-cr-00098-BLW-1 v.
ANDREW RAY YOUNG, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the District of Idaho B. Lynn Winmill, Chief District Judge, Presiding
Argued and Submitted February 6, 2024* Portland, Oregon
Before: GOULD, BYBEE, and BRESS, Circuit Judges. Andrew Young was convicted of one count of coercion and enticement of a
minor in violation of 18 U.S.C. § 2422(b), one count of sexual exploitation of a
minor child in violation of 18 U.S.C. § 2251(a), and one count of receipt of child
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. pornography in violation of 18 U.S.C. § 2252A(a)(2). He was sentenced to
360 months’ imprisonment and now appeals based on five alleged errors. We affirm.
1. Young first argues that the government violated his due process rights by
losing potentially exculpatory evidence when extracting information from the
victim’s cell phone. The local contents of the victim’s phone, as well as the raw
extraction data, were deleted during this process. However, the government
produced and provided to Young a Universal Forensic Device Report (UFDR),
which is a “readable report of the phone’s contents.”
To establish a due process violation, Young must show that “the unavailable
evidence possessed exculpatory value” and “that the government acted in bad faith
in failing to preserve the potentially useful evidence.” United States v. Zaragoza-
Moreira, 780 F.3d 971, 977 (9th Cir. 2015) (cleaned up). We review the district
court’s legal conclusions de novo and its factual findings for clear error. United
States v. Sivilla, 714 F.3d 1168, 1172 (9th Cir. 2013) (citation omitted).
Young argues that the lost data contained potentially exculpatory evidence
based on his expert’s opinion that the UFDR did not contain all the information the
expert expected to find there. Young’s argument is speculative. His expert points to
the lack of Whisper application data in the UFDR to demonstrate missing evidence.
Yet the record contains no evidence that Young and the victim communicated via
2 Whisper. Rather, the record indicates that they communicated almost exclusively
via Snapchat. Indeed, Young fails to show that the data he sought would have
produced anything other than information in the UFDR file he received. Young has
not established that the lost evidence was potentially exculpatory; therefore, the
government also did not act in bad faith in failing to preserve it. See United States
v. Robertson, 895 F.3d 1206, 1211–13 (9th Cir. 2018); Sivilla, 714 F.3d at 1172. Nor
has Young demonstrated any other indicia of bad faith.
2. Young next contends the district court misapplied Federal Rule of Evidence
(FRE) 412(a) in excluding certain text messages related to the victim’s sexual
behavior or predisposition. FRE 412(a) renders inadmissible evidence of a victim’s
other sexual behavior or sexual predisposition in any proceeding involving alleged
sexual misconduct. Fed. R. Evid. 412(a). FRE 412(b)(1)(C) provides an exception
to 412(a), allowing such evidence to be admitted if its exclusion would violate the
defendant’s constitutional rights. See United States v. Haines, 918 F.3d 694, 697
(9th Cir. 2019). “We review a district court’s evidentiary rulings for abuse of
discretion.” Id. We review de novo the district court’s interpretation of the Federal
Rules of Evidence and whether evidentiary rulings violated a defendant’s
constitutional rights. Id.
3 Young contends that the exclusion of the texts undermined his defense theory
at trial, which was that the victim misrepresented her age as part of a game to “catch
pedos.” However, the district court admitted the portion of those text messages that
specifically referred to the victim’s “game,” and explicitly instructed defense
counsel that he could cross-examine the victim “as to any reference to catching a
pedo.” Counsel was simply prohibited from questioning the victim about her sexual
behavior with others. The exclusion of the text messages therefore did not
undermine Young’s defense, when evidence showing that the victim misrepresented
her age simply did not exist. Thus, the district court did not abuse its discretion in
excluding the text messages.
3. Young also argues that the district court erred in excluding five of his
expert’s thirty-one opinions. We review this decision for abuse of discretion. United
States v. Morales, 108 F.3d 1031, 1035 (9th Cir. 1997) (en banc).
FRE 704(b) prohibits expert witnesses in criminal cases from providing an
opinion “about whether the defendant did or did not have a mental state or condition
that constitutes an element of the crime charged or of a defense.” Fed. R. Evid.
704(b). Young argues that none of the excluded opinions would have necessarily
compelled a conclusion regarding his mens rea. Yet, four of the five opinions
explicitly state in some form that Young did not intend or desire to engage in sexual
4 behavior with minors. A key element in three of the four charged crimes was
whether the defendant knew or believed the victim was a minor, so the district court
did not err in excluding these opinions.
Although one excluded opinion may not reference Young’s mental state, we
reverse only where the error “more likely than not affected the verdict.” United
States v. Hankey, 203 F.3d 1160, 1167 (9th Cir. 2000) (citation omitted). The
government presented overwhelming evidence of Young’s guilt, including the
discovery of 78 explicit images of the victim on Young’s phone. The government
also established that Young had delivered a dog collar and anal plug to the victim
and encouraged her to send him photos of her using those items. In light of the
extensive evidence against Young, the exclusion of a single expert opinion, even if
improper, cannot be said to have “more likely than not affected the verdict.” Id.
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NOT FOR PUBLICATION FILED FEB 16 2024 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-30163
Plaintiff-Appellee, D.C. No. 4:21-cr-00098-BLW-1 v.
ANDREW RAY YOUNG, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the District of Idaho B. Lynn Winmill, Chief District Judge, Presiding
Argued and Submitted February 6, 2024* Portland, Oregon
Before: GOULD, BYBEE, and BRESS, Circuit Judges. Andrew Young was convicted of one count of coercion and enticement of a
minor in violation of 18 U.S.C. § 2422(b), one count of sexual exploitation of a
minor child in violation of 18 U.S.C. § 2251(a), and one count of receipt of child
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. pornography in violation of 18 U.S.C. § 2252A(a)(2). He was sentenced to
360 months’ imprisonment and now appeals based on five alleged errors. We affirm.
1. Young first argues that the government violated his due process rights by
losing potentially exculpatory evidence when extracting information from the
victim’s cell phone. The local contents of the victim’s phone, as well as the raw
extraction data, were deleted during this process. However, the government
produced and provided to Young a Universal Forensic Device Report (UFDR),
which is a “readable report of the phone’s contents.”
To establish a due process violation, Young must show that “the unavailable
evidence possessed exculpatory value” and “that the government acted in bad faith
in failing to preserve the potentially useful evidence.” United States v. Zaragoza-
Moreira, 780 F.3d 971, 977 (9th Cir. 2015) (cleaned up). We review the district
court’s legal conclusions de novo and its factual findings for clear error. United
States v. Sivilla, 714 F.3d 1168, 1172 (9th Cir. 2013) (citation omitted).
Young argues that the lost data contained potentially exculpatory evidence
based on his expert’s opinion that the UFDR did not contain all the information the
expert expected to find there. Young’s argument is speculative. His expert points to
the lack of Whisper application data in the UFDR to demonstrate missing evidence.
Yet the record contains no evidence that Young and the victim communicated via
2 Whisper. Rather, the record indicates that they communicated almost exclusively
via Snapchat. Indeed, Young fails to show that the data he sought would have
produced anything other than information in the UFDR file he received. Young has
not established that the lost evidence was potentially exculpatory; therefore, the
government also did not act in bad faith in failing to preserve it. See United States
v. Robertson, 895 F.3d 1206, 1211–13 (9th Cir. 2018); Sivilla, 714 F.3d at 1172. Nor
has Young demonstrated any other indicia of bad faith.
2. Young next contends the district court misapplied Federal Rule of Evidence
(FRE) 412(a) in excluding certain text messages related to the victim’s sexual
behavior or predisposition. FRE 412(a) renders inadmissible evidence of a victim’s
other sexual behavior or sexual predisposition in any proceeding involving alleged
sexual misconduct. Fed. R. Evid. 412(a). FRE 412(b)(1)(C) provides an exception
to 412(a), allowing such evidence to be admitted if its exclusion would violate the
defendant’s constitutional rights. See United States v. Haines, 918 F.3d 694, 697
(9th Cir. 2019). “We review a district court’s evidentiary rulings for abuse of
discretion.” Id. We review de novo the district court’s interpretation of the Federal
Rules of Evidence and whether evidentiary rulings violated a defendant’s
constitutional rights. Id.
3 Young contends that the exclusion of the texts undermined his defense theory
at trial, which was that the victim misrepresented her age as part of a game to “catch
pedos.” However, the district court admitted the portion of those text messages that
specifically referred to the victim’s “game,” and explicitly instructed defense
counsel that he could cross-examine the victim “as to any reference to catching a
pedo.” Counsel was simply prohibited from questioning the victim about her sexual
behavior with others. The exclusion of the text messages therefore did not
undermine Young’s defense, when evidence showing that the victim misrepresented
her age simply did not exist. Thus, the district court did not abuse its discretion in
excluding the text messages.
3. Young also argues that the district court erred in excluding five of his
expert’s thirty-one opinions. We review this decision for abuse of discretion. United
States v. Morales, 108 F.3d 1031, 1035 (9th Cir. 1997) (en banc).
FRE 704(b) prohibits expert witnesses in criminal cases from providing an
opinion “about whether the defendant did or did not have a mental state or condition
that constitutes an element of the crime charged or of a defense.” Fed. R. Evid.
704(b). Young argues that none of the excluded opinions would have necessarily
compelled a conclusion regarding his mens rea. Yet, four of the five opinions
explicitly state in some form that Young did not intend or desire to engage in sexual
4 behavior with minors. A key element in three of the four charged crimes was
whether the defendant knew or believed the victim was a minor, so the district court
did not err in excluding these opinions.
Although one excluded opinion may not reference Young’s mental state, we
reverse only where the error “more likely than not affected the verdict.” United
States v. Hankey, 203 F.3d 1160, 1167 (9th Cir. 2000) (citation omitted). The
government presented overwhelming evidence of Young’s guilt, including the
discovery of 78 explicit images of the victim on Young’s phone. The government
also established that Young had delivered a dog collar and anal plug to the victim
and encouraged her to send him photos of her using those items. In light of the
extensive evidence against Young, the exclusion of a single expert opinion, even if
improper, cannot be said to have “more likely than not affected the verdict.” Id.
(citation omitted). Thus, the district court did not abuse its discretion in excluding
four of Young’s expert’s opinions, and any error in excluding the fifth opinion was
harmless.
4. Young argues that the verdict form submitted to the jury improperly shifted
the burden of proof by requiring the jury to find him either guilty or not guilty
“beyond a reasonable doubt.” We agree. The form was clearly erroneous under
United States v. Espino, 892 F.3d 1048, 1052 (9th Cir. 2018).
5 However, an erroneous verdict form does not end our inquiry—we must
consider whether the error was harmless. “An error . . . is harmless only if it is ‘clear
beyond a reasonable doubt that a rational jury would have found the defendant guilty
absent the error.’” United States v. Munguia, 704 F.3d 596, 603–04 (9th Cir. 2012)
(quoting Neder v. United States, 527 U.S. 1, 18 (1999)). “To determine whether the
jury was misled, we must consider the instructions and the verdict form together.”
Espino, 892 F.3d at 1051 (citation omitted).
Here, the district court’s numerous jury instructions indicating the proper
burden of proof overcome the erroneous verdict form. The district court repeatedly
referred to the government’s burden of proof in the instructions: “If . . . you are not
convinced beyond a reasonable doubt that a defendant is guilty, it is your duty to
find that defendant not guilty;” “the government must prove each . . . element[]
beyond a reasonable doubt;” “[i]f the Government has failed to prove each of these
elements beyond a reasonable doubt, you must find the Defendant not guilty;” and
“[y]ou may not consider punishment in deciding whether the government has proved
its case against the defendant beyond a reasonable doubt.” The jury therefore
received proper explanations of the burden of proof and the reasonable doubt
standard, notwithstanding the verdict form.
6 Moreover, in addition to the evidence described above, the government
presented testimony from both the victim and her mother indicating that Young was
aware that the victim was a minor and that he proceeded to request sexually explicit
images and videos from the victim despite this knowledge. Thus, it is “clear beyond
a reasonable doubt that a rational jury would have found the defendant guilty absent
the error.” Munguia, 704 F.3d at 604 (citation omitted).
5. Finally, Young challenges his sentence as procedurally and substantively
unreasonable. First, he contends the district court procedurally erred by failing to
recognize its authority to vary from the Guidelines on policy grounds as set forth in
Kimbrough v. United States, 552 U.S. 85 (2007). While it is true that “a district court
commits procedural error when it fails to appreciate its Kimbrough discretion[,]” we
have also acknowledged that “district courts are not obligated to vary from the child
pornography Guidelines on policy grounds if they do not have, in fact, a policy
disagreement with them.” United States v. Henderson, 649 F.3d 955, 964 (9th Cir.
2011). Although the district court did not cite Kimbrough by name, the record
indicates that it understood its discretion under the Guidelines. The court stated that
“it must treat the guidelines as advisory. . . . They are not binding upon this Court.”
It also noted that it ultimately “must sentence individuals in accordance with and in
7 consideration, independent of any guideline, of the factors under 3553(a).”
(emphasis added). Young’s sentence is thus not procedurally erroneous.
Young also argues that his sentence is substantively unreasonable due to the
district court’s application of United States Sentencing Guideline § 2G2.1(b)(4)(A).
Section 2G2.1(b)(4)(A) provides for a four-level sentence enhancement “[i]f the
offense involved material that portrays . . . sadistic or masochistic conduct or other
depictions of violence.” Young argues that the images at issue were not sadistic or
masochistic.
The district court did not abuse its discretion in applying this enhancement.
The images at issue portray masochistic or sadistic content—nude images of the
victim inserting an anal plug and wearing a dog collar. See United States v. Shouse,
755 F.3d 1104, 1107 (9th Cir. 2014); see also United States v. Rearden, 349 F.3d 608,
615–16 (9th Cir. 2003) (finding the anal penetration of children to be sadistic). Thus,
Young’s sentence was also substantively reasonable.
For these reasons, we AFFIRM the district court’s judgment.