United States v. Flaming

133 F.4th 1011

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 8, 2025
• Docket: 23-5064
• Status: Published

Opinion

Appellate Case: 23-5064 Document: 67-1 Date Filed: 04/08/2025 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS April 8, 2025

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-5064

DEREK RAY FLAMING,

Defendant - Appellant. _________________________________

Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 4:21-CR-00281-GKF-1) _________________________________

Neil D. Van Dalsem, Assistant Federal Public Defender (Scott A. Graham, Federal Public Defender, with him on the briefs), Office of the Federal Public Defender, Northern & Eastern Districts of Oklahoma, Muskogee, Oklahoma, for Defendant-Appellant.

Michael A. Rotker, Attorney, United States Department of Justice, Appellate Section, Washington, D.C. (Nicole M. Argentieri, Acting Assistant Attorney General, Lisa H. Miller, Deputy Assistant Attorney General, and Ralph Paradiso, Trial Attorney, United States Department of Justice, Criminal Division, Washington, D.C.; and Clinton J. Johnson, United States Attorney, and Aaron M. Jolly, Assistant United States Attorney, Northern District of Oklahoma, Tulsa, Oklahoma), for Plaintiff-Appellee. _________________________________

Before MATHESON, EID, and ROSSMAN, Circuit Judges. _________________________________

EID, Circuit Judge. _________________________________ Appellate Case: 23-5064 Document: 67-1 Date Filed: 04/08/2025 Page: 2

Derek Flaming showed his minor stepdaughter child pornography, sexually

assaulted her, and attempted to obtain oral sex from her. Following a jury trial,

Flaming was convicted of distribution and receipt of an obscene visual representation

of sexual abuse of children, aggravated sexual abuse, and attempt to cause a minor to

engage in a sexual act by placing her in fear. Flaming now appeals.

On appeal, Flaming challenges the sufficiency of the evidence and the district

court’s evidentiary rulings. In the end, Flaming fails to show any error underlying

his trial or conviction.

We reject Flaming’s three sufficiency-of-the-evidence arguments. First, we

hold that the government’s evidence, which included a contemporaneous U.S.

Department of Defense online record of Flaming (a member of the military and later,

at the relevant time, a military dependent) showing only that Flaming held United

States citizenship and evidence that South Korean authorities declined to prosecute

Flaming for his crimes in South Korea due to his United States citizenship, viewed in

the light most favorable to the government, supported the jury’s finding that Flaming

was not a South Korean national at the time of the charged conduct. Second, we hold

that there was sufficient evidence that Flaming received images of child

pornography: It sufficed that the government established that images of child

pornography were downloaded on a computer that sat in the apartment where

Flaming lived with his wife and children, to which Flaming had access, and on which

child pornographic images were sent from Flaming’s personal Skype account, all in

light of evidence that Flaming had shown his minor stepdaughter child pornography

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before. Lastly, we hold that there was sufficient evidence that Flaming placed his

minor stepdaughter in fear when Flaming instructed his stepdaughter to “get him off”

while he was naked, and he had sexually abused her in the past.

We also reject Flaming’s two evidentiary points of error. First, the district

court did not violate Flaming’s Confrontation Clause rights or violate the Federal

Rules of Evidence in limiting Flaming’s cross-examination of his minor stepdaughter

on her purported prior statements that Flaming had not sexually abused her in South

Korea. On confrontation, the district court did not deprive Flaming of an opportunity

to cross-examine his stepdaughter on those prior statements; Flaming failed to

comply with the court’s reasonable limit on this line of cross-examination that he

first establish that she actually made any such statements. Similarly, the district

court did not abuse its discretion in concluding that Flaming had not laid the proper

foundation to impeach his stepdaughter with prior inconsistent statements, because

the court did not clearly err in finding that Flaming’s stepdaughter never made a prior

inconsistent statement to begin with. Finally, the district court did not abuse its

discretion by permitting the government to introduce summaries of electronically

stored information, because the underlying information was admissible and

voluminous, and the summary accurately portrayed the underlying information.

For these reasons, expounded upon below, we affirm.

I.

Derek Ray Flaming lived in Aurora, Colorado with his wife, biological

daughter, and minor stepdaughter (“Jane Doe”). Later, the family lived in South

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Korea while Flaming and his wife each served in the army there.

On the night of November 18, 2016, while Flaming’s wife worked at an army

base, Flaming was at their apartment in South Korea with Jane Doe. Flaming, who

was drunk, sent Skype messages to his wife requesting sexual favors. His wife

responded that she would be back home tomorrow. But that was not good enough for

Flaming. He replied that if she did not come home immediately, he would instead

make sexual advances at his stepdaughter, Doe. See, e.g., Supp. R. at 131 (“SO

[Doe] GOING TO GET F[*****].”). His wife then begged Flaming repeatedly, “[n]o

[don’t] do anything to her.” Id. Flaming responded that “YOU NEED TO DO IT . . .

OR I WILL DO HER.” Id.

Over the next hour, Flaming continued the tone of the conversation—making

graphic and disturbing statements to his wife, even threatening to commit “HARD

CORE” sex acts on Doe like “RAPE.” Id. at 138 (“I’M GOING TO RAPE HER . . . .

I RAPE HER NOW.”).

At some point during the night, Doe left the house. In tears, Doe went to a

neighbor asking for help. Doe told the neighbor that her stepfather said that she had

to “get him off.” R. Vol. II at 274. The neighbor later testified that Doe “said her

stepdad t[old] her to give him . . . a blowjob or get out from the house.” Id. at 300.

Apparently, this was not the first time something like this happened. Doe told the

neighbor that it “happened a lot.” Id.

In response to these allegations, the neighbor decided to take Doe to a police

station. The police later contacted the Army Criminal Investigation Division

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(“CID”), and the CID thereafter opened a formal criminal investigation into Doe’s

allegations.

Further investigation revealed that Flaming had previously abused Doe and

shown her pornographic images. In several interviews by CID investigators, Doe

stated that she had been abused by Flaming in Colorado and once before in South

Korea.

Doe told the CID that, when she was in “third grade” in Colorado, Flaming

showed her sexually explicit images of two adults having sex to teach her “how

babies are made.” Id. at 277. And Flaming did not just show her adult content. Doe

also recounted that Flaming showed her a second image that involved “two younger

children, one giving the other oral sex.” Id. at 276.

After showing Doe this pornographic content, Flaming told her that she

“would have to do that . . . in Korea” and asked her if she “wanted to practice with

him.” Id. at 277. Doe initially refused. But because Flaming “kept asking” her and

even offered to pay her for oral sex, she eventually “gave in and [] said yes.” Id.

Doe testified as to another incident in Colorado. Doe testified that Flaming

“went into [her] bed and . . . grabbed [her] chest, [] kissed [her], . . . went on top of

[her], [] licked [her] vagina, . . . had [her] put his penis in [her] mouth, and [] tried to

penetrate [her] vagina.” Id. at 277–78.

Doe also described an incident that happened in South Korea a few months

before the November 18 incident. Flaming, while drunk, “got on top of [her] and

tried to get [her] to suck his penis and he tried to force his penis into [her] mouth,”

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but she refused. Id. at 275–76. Flaming continued to try and force Doe, prompting

her to scream, at which point Flaming “choked [her] up against a wall.” Id. at 276.

The CID also interviewed Flaming. Flaming indicated that he was an

American citizen. Id. at 59. On the night of the November 18 incident, Flaming said

that he had been drinking and, when he went to the bathroom, he accidentally

urinated on his shorts, so he took them off and got naked. And while naked, he stated

that he went into the living room and yelled at Doe because she was too loud.

As part of the investigation, CID agents executed search warrants at Flaming’s

apartment. They seized a Lenovo desktop computer, which upon examination,

contained images of Flaming’s Colorado driver’s license and a military rations card

issued to him. Investigators also discovered that the computer had a “Tor browser”

downloaded, which allows users to stay anonymous and is often used by “people

engaged in criminal conduct.” Id. at 173–75. Also on the computer were several

peer-to-peer filesharing applications commonly used “in the world of child

exploitation . . . since the 2005 time period.” Id. at 173.

The computer’s browsing history indicated that searches had been performed

and files had been downloaded using terms regularly associated with child

pornography. Id. at 180 (finding the acronym “PTHC,” which “generally stands for

preteen hard-core”), id. at 181 (finding the term “hussyfan,” which refers to a fan of

“a prepubescent minor female who doesn’t have genital hair”); id. at 185 (finding the

term “Lolita,” which “is a general term for a young girl who is sexually active or

sexually promiscuous”); id. (finding the terms “11yo, 12yo, small,” which “clearly

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are related to children” and “to terms associated with child pornography”); id. at

209–10, 233–38, 249, 267 (finding images and files sent from Flaming’s personal

Skype account to his wife’s account with the name “Siberian Mouse,” which is a

series of pre-pubescent child pornography).

Investigators issued search warrants to Microsoft regarding the Flamings’

Skype accounts that they used to communicate to each other. Although Flaming’s

account had been “wiped empty,” Microsoft produced “more complete and more

robust” chats from his wife’s account. Id. at 247. Those chats revealed the extent of

the threats Flaming made to his wife about Doe the night of November 18.

And in the days after, chats sent from Flaming’s account, under the username

“derek.r.flaming,” revealed that Flaming instructed his wife to get Doe to retract her

statements to law enforcement. Supp. R. at 146 (“SHE NEED TO TRTRACKTED

[sic] HER STAMENT [sic] SAYING SHE LIED”). Chats also showed that Flaming

told his wife to “delet[e] all [of their] skype” chat history. Id. at 174.

In early 2017, Flaming left South Korea and returned home to Colorado. Later

on, he moved to Oklahoma, where he was arrested and then indicted by a federal

grand jury. See also 18 U.S.C. § 3238 (stating that the venue for crimes committed

outside the United States is proper in the district of arrest). A second superseding

indictment charged Flaming with committing the five aforementioned crimes in

South Korea pursuant to the Military Extraterritorial Jurisdiction Act of 2000

(“MEJA”).

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A jury convicted Flaming of distribution and receipt of an obscene visual

representation of sexual abuse of children, in violation of 18 U.S.C. § 1466A(a)(1),

aggravated sexual abuse, in violation of 18 U.S.C. § 2241, and attempting to cause a

minor to engage in a sexual act by placing her in fear, in violation of 18 U.S.C.

§ 2242(1). Altogether, the district court sentenced him to two concurrent terms of

life imprisonment as well as a concurrent 240 months’ imprisonment. Flaming

timely appealed, raising three sufficiency-of-the-evidence arguments and challenging

two adverse evidentiary rulings.

II.

We start with Flaming’s three sufficiency-of-the-evidence challenges.

Flaming argues that (A) the district court plainly erred by entering the judgment of

conviction because the government did not meet its burden in proving that Flaming

was not a South Korean national; (B) the jury lacked sufficient evidence that Flaming

received images of child pornography; and (C) the jury lacked sufficient evidence

that Flaming attempted to cause a minor to engage in a sexual act by placing her in

fear. As we explain, each argument fails.

A.

To begin, we assess Flaming’s claim that the district court committed plain

error by submitting the case to the jury and entering a judgment of conviction even

though the government did not sufficiently establish an element under the MEJA.

Specifically, Flaming contends that the government did not present sufficient

evidence to prove that he was not a South Korean national—a showing that we

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assume without deciding is an element under the MEJA that the government must

prove.

Flaming concedes that he did not raise the argument in his motion for

judgment of acquittal to the district court that the government failed to prove he was

not a South Korean national under the MEJA. Aplt. Br. at 28. Because the argument

about the sufficiency of the evidence underlying an element of a crime was not raised

below, this Court reviews for plain error. United States v. Kimler, 335 F.3d 1132,

1141 (10th Cir. 2003).

To demonstrate plain error, a defendant must show: “(1) error, (2) that is

plain, which (3) affects substantial rights, and which (4) seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” United States v. Mike, 632

F.3d 686, 691–92 (10th Cir. 2011) (quoting United States v. Gonzalez-Huerta, 403

F.3d 727, 732 (10th Cir. 2005) (en banc)).

That said, “a conviction in the absence of sufficient evidence will almost

always satisfy all four plain-error requirements.” United States v. Gallegos, 784 F.3d

1356, 1359 (10th Cir. 2015). For that reason, “our review for plain error in this

context differs little from our de novo review of a properly preserved sufficiency

claim.” Id. We view the record “in the light most favorable to the government” and

ask whether the evidence and reasonable inferences drawn from it “would allow a

reasonable jury to find the defendant guilty beyond a reasonable doubt.” Id.

The issue Flaming raises on appeal requires us to look at the sufficiency of the

evidence to see if the government could initiate suit under the MEJA. Answering

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that question will determine whether the United States possesses criminal jurisdiction

over Flaming for crimes committed in a foreign country.

The MEJA states in relevant part:

Whoever engages in conduct outside the United States that would constitute an offense punishable by imprisonment for more than 1 year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States . . . while employed by or accompanying the Armed Forces outside the United States . . . shall be punished as provided for that offense.

18 U.S.C. § 3261(a)(1). This section provides for federal criminal jurisdiction over

certain persons who are employed by or accompanying the military and who

allegedly commit crimes in a foreign country that would be crimes if committed

within the United States.

But other sections of the MEJA, 18 U.S.C. § 3267(1) and (2), limit who falls

within the United States’s criminal jurisdiction by defining the phrases “employed by

the Armed Forces outside the United States” and “accompanying the Armed Forces

outside the United States,” which appear in § 3261(a)(1). Section 3267 provides a

specific limitation, stating that for both phrases, a defendant accused of a crime

abroad cannot be “a national of or ordinarily resident in the host nation.” 18 U.S.C.

§ 3267(1)(C), (2)(C).

The jury instructions in this case listed this limitation and other MEJA

requirements as jurisdictional elements of every offense. See R. Vol. I at 150–51.

Specifically, the MEJA’s application in this case was contingent on the proof that

Flaming was (1) a military dependent who (2) resided with a member of the Armed

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Forces outside the United States and who (3) was not a national of or ordinarily

resident in South Korea. See id. The jury found that all three of these requirements,

as to each of the offenses submitted, were met. See id. at 150–51, 174(a).

The only jurisdictional aspect of the MEJA at issue on this appeal is whether

Flaming was “not a national of . . . the host nation” at the time of the offense. 18

U.S.C. § 3267(1)(C), (2)(C); see id. § 3261(a)(1). The government acknowledges

that it remains “an open legal question” whether the MEJA requires the government

to bear the burden in proving the lack of nationality as an element of an offense under

the MEJA, or instead, whether the MEJA merely allows a defendant to raise his

nationality of the host nation as an affirmative defense against the MEJA’s

application. Oral Arg. at 16:15–27. That said, each party agrees that “for purposes

of this case the government has assumed that [the MEJA’s nationality requirement] is

an element.” Id. at 16:19–25; see id. at 12:33–15:00. As such, we analyze Flaming’s

argument under the assumption that the government must prove that Flaming was

“not a national of” his “host nation,” leaving the question for another day. 1 18

U.S.C. § 3267(1)(C), (2)(C).

Though not many cases have addressed how to prove the MEJA’s not-a-“host

nation”-national-at-time-of-offense jurisdictional element, in at least one case, the

1 We note, however, that if the MEJA looks at “host nation” nationality as an affirmative defense as opposed to an element of an offense, Flaming would have waived the defense altogether. 18 U.S.C. § 3267(1)(C), (2)(C). Below, Flaming did not contest that he was something different than solely a United States citizen. And on appeal, he does not argue that he is in fact a dual citizen of the United States and South Korea. 11 Appellate Case: 23-5064 Document: 67-1 Date Filed: 04/08/2025 Page: 12

government has used direct evidence of non-nationality, albeit only circumstantial

evidence of non-nationality at the relevant time. 2 In United States v. Williams, the

D.C. Circuit answered the nationality question using a questionnaire that the

defendant completed nine years before he committed his crime in Germany; in the

questionnaire, the defendant “checked the box indicating that he was a U.S. citizen or

national by birth” and wrote “NA” on a question about dual citizenship. 836 F.3d 1,

8 (D.C. Cir. 2016). The Williams court held that, “knowing that [the defendant] was

not a German national” when he completed the questionnaire, “a juror could

rationally infer that he was not one” during the relevant time nine years later. Id.

As in all criminal trials, the jury “may draw reasonable inferences from direct

or circumstantial evidence.” United States v. Atencio, 435 F.3d 1222, 1232 (10th Cir.

2006) (quoting United States v. Jones, 44 F.3d 860, 865 (10th Cir. 1995)). So long as

a jury’s inferences “flow from logical and probabilistic reasoning,” we will uphold

convictions against sufficiency-of-the-evidence challenges like here. Id. (cleaned

up).

To prove that Flaming was not a South Korean national at the time of the

charged conduct, the government provided four main pieces of circumstantial

evidence for the jury to review. 3

Circumstantial evidence is evidence that proves a fact “based on inference,” 2

whereas direct evidence is evidence “that, if true, proves a fact without inference or presumption.” Evidence, Black’s Law Dictionary (12th ed. 2024).

At the outset, we note that the evidence speaks of Flaming’s citizenship, 3

whereas the MEJA speaks of “national[ity].” 18 U.S.C. § 3267(1)(C), (2)(C). And 12 Appellate Case: 23-5064 Document: 67-1 Date Filed: 04/08/2025 Page: 13

First, the government provided Exhibit 39, which contained a U.S. Department

of Defense (“DoD”) Person Search containing Flaming’s citizenship. 4 The jury heard

that the DoD Person Search “is a database that is maintained . . . for everybody that

has served in the service, regardless of what their discharge was or not.” R. Vol. II at

71. A DoD Person Search, the jury learned, allows someone to “get [someone’s]

information” should the need arise “at a later date.” 5 Id.

A day after the November 18 incident between Flaming and Doe, a DoD

search revealed only that Flaming had United States citizenship. Nowhere on the

the terms “citizen” and “national,” technically speaking, are not totally coterminous. Cf. 8 U.S.C. §§ 1401, 1408 (providing differences between United States citizenship and nationality, as a matter of United States law). See generally Peter J. Spiro, A New International Law of Citizenship, 105 Am. J. Int’l L. 694, 695 n.6, 717 & n.150 (2011) (discussing the historical distinction between the terms and the distinction’s apparent narrowing in recent times). Compare Citizen, Black’s Law Dictionary (7th ed. 1999) (“A person who, by either birth or naturalization, is a member of a political community, owing allegiance to the community and being entitled to enjoy all its civil rights and protections; a member of the civil state, entitled to all its privileges.”), with National, Black’s Law Dictionary (7th ed. 1999) (“A member of a nation. . . . A person owing permanent allegiance to and under the protection of a state.”). For purposes of this case, however, the parties do not at all suggest that any technical distinction between the terms is relevant. Cf. Williams, 836 F.3d at 8 (finding that the defendant’s indication that he did not hold “dual citizenship” established that he was “not a German national”). Nor do we. 4 Flaming argues that the DoD search related only to his wife, not him. Aplt. Br. at 33. A review of the document shows that is not the case. See Supp. R. at 36– 38. 5 Flaming contends that nothing in the record indicates the source of the DoD’s information contained in Exhibit 39. Aplt. Br. at 33. That may be true as to the record itself, but either way, the jury heard that the record reflects “a database that is maintained . . . for everybody that has served in the service,” R. Vol. II at 71, which the jury could understand to mean that the DoD collects that information either itself or from some reliable source. 13 Appellate Case: 23-5064 Document: 67-1 Date Filed: 04/08/2025 Page: 14

DoD Person Search does it say that Flaming had dual citizenship in the United States

and South Korea. Viewed in the light most favorable to the government, see United

States v. Sapp, 53 F.3d 1100, 1103 (10th Cir. 1995), a juror could reason that the

DoD Person Search would have had both the United States and South Korea listed if

Flaming was in fact a dual citizen. Restated, a rational juror could think that any

information about Flaming’s supposed South Korean nationality would have

appeared in Exhibit 39, the DoD Person Search of someone who both served in the

military and then later was a military dependent. Thus, this “maintained” “database”

of people having served in the military’s “information,” R. Vol. II at 71, collected on

Flaming within a day of the November 18 incident, supports that he was solely a

citizen and national of the United States.

Next, the government provided three items of circumstantial evidence from the

CID’s investigation. First, Flaming had admitted during his CID interview that he

was “an American citizen.” 6 Id. at 59. Second, CID investigators “had spoken to the

Korean police” and found out that “the Korean police [would not] prosecute a crime

committed by [Flaming,] a U.S. citizen,” because “some of [the alleged criminal

6 Flaming made no mention of South Korean citizenship in the CID interview. Flaming is correct that just because one admits that they are a citizen of one country does not necessarily mean that they are not a citizen of another country. Cf. Kawakita v. United States, 343 U.S. 717, 724 (1952) (“The mere fact that [someone] asserts the rights of one citizenship does not without more mean that he renounces the other.”). But here, the government provided the jury with more evidence than just Flaming’s assertion of his United States citizenship in the CID interview. And collectively, the circumstantial evidence, viewed in the light most favorable to the government, supports the jury’s finding. 14 Appellate Case: 23-5064 Document: 67-1 Date Filed: 04/08/2025 Page: 15

conduct] occurred in Colorado.” Id. at 78–79. The “logical and probabilistic”

inference most favorable to the government here, see Atencio, 435 F.3d at 1232, is

that the South Korean police declined to prosecute Flaming because he was not a

South Korean national. Third, a CID agent testified that at some point Flaming left

the army but still lived with his wife in South Korea. At that point, “he was just a

normal dependent citizen,” R. Vol. II at 80, as he admitted to CID investigators, see

id. at 59.

Flaming’s main response is that the government needed to provide

“affirmative evidence” of Flaming’s lack of South Korean nationality, like (he says)

the questionnaire in Williams. Aplt. Br. at 33–34. Essentially, Flaming would have

us hold that the government can prove his non-nationality only through direct

evidence proving that (at some point in time, at least) he was not a South Korean

national. 7 See id. But surely, the jury could rely on the circumstantial evidence

alone. See Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003) (“[W]e have never

questioned the sufficiency of circumstantial evidence in support of a criminal

conviction, even though proof beyond a reasonable doubt is required.”). To suffice,

the circumstantial evidence here did not need to irrefutably negate the possibility that

Flaming held South Korean nationality. See United States v. Wood, 207 F.3d 1222,

1228 (10th Cir. 2000) (“[T]he evidence necessary to support a verdict ‘need not

7 Again, the Williams questionnaire might have been direct evidence of the defendant’s non-German nationality when he completed it; it was, however, only circumstantial evidence of the ultimate fact in issue, the defendant’s non-German nationality at the time of the crime. See 836 F.3d at 8. 15 Appellate Case: 23-5064 Document: 67-1 Date Filed: 04/08/2025 Page: 16

conclusively exclude every other reasonable hypothesis and need not negate all

possibilities except guilt.’” (quoting United States v. Wilson, 182 F.3d 737, 742 (10th

Cir. 1999))). And in some ways, the evidence we have here is arguably even better

than that in Williams; as opposed to the Williams defendant’s “dated” information

from about a decade before the crime, see 836 F.3d at 8, we have Flaming’s

information collected a day after the November 18 incident from “a database that is

maintained . . . for everybody that has served in the service,” R. Vol. II at 71

(emphasis added), which the jury could understand to mean that DoD keeps the

information up-to-date.

Considering all the evidence in the light most favorable to the government, no

error, let alone a plain one, occurred. The jury had sufficient evidence to find that

Flaming was not a South Korean national.

B.

Flaming next challenges the sufficiency of the evidence underlying the jury’s

finding that he received images of child pornography. Below, Flaming preserved his

sufficiency-of-the-evidence challenge on whether he received images of child

pornography by raising it in his motion for judgment of acquittal. Accordingly, we

review this issue de novo. See United States v. Rufai, 732 F.3d 1175, 1188 (10th Cir.

2013).

In considering a sufficiency-of-the-evidence challenge, “we review the entire

record in the light most favorable to the government to determine whether the

evidence is such that a reasonable jury could find the defendant guilty beyond a

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reasonable doubt.” Sapp, 53 F.3d at 1103 (quoting United States v. Dirden, 38 F.3d

1131, 1142 (10th Cir. 1994)). We ask whether “any rational trier of fact could have

found the essential elements of the crime . . . beyond a reasonable doubt.” United

States v. Emmons, 24 F.3d 1210, 1217 (10th Cir. 1994) (quoting Jackson v. Virginia,

443 U.S. 307, 319 (1979)). “To the extent that the evidence conflicts, ‘we accept the

jury’s resolution of conflicting evidence and its assessment of the credibility of

witnesses.’” Sapp, 53 F.3d at 1103 (quoting Dirden, 38 F.3d at 1142).

To determine whether Flaming received child pornography, the jury could rely

on direct or circumstantial evidence. See Atencio, 435 F.3d at 1232. And as relevant

here, “[a]n individual who downloads material takes possession or accepts delivery

of the visual image . . . has therefore certainly received it.” United States v.

Mohrbacher, 182 F.3d 1041, 1048 (9th Cir. 1999).

Flaming concedes that images were found on the Lenovo computer seized

from the apartment where he was living in South Korea. Aplt. Br. at 36. And he

“does not . . . contest that the images contain child pornography that is obscene.” Id.

at 16 n.2. Still, he argues that “no evidence” supports that he was the person who

downloaded—meaning, received—the images. Id. at 37. Not so. Plenty of evidence

suggests that the person who received the images was Flaming.

Although there was no direct evidence placing Flaming at the Lenovo

computer when an image was downloaded, circumstantial evidence permitted the jury

to draw that inference. Evidence at trial showed that the computer sat in the

apartment where Flaming lived with his wife and two children. And several pieces of

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evidence indicated that he had access to that computer. A search of the computer

uncovered images of Flaming’s driver’s license, rations card, and personal Skype

account. Also, Siberian Mouse images—which, again, contain child pornographic

content—were sent on the Lenovo computer via Flaming’s personal Skype account to

his wife’s Skype account. No evidence suggests that anyone other than Flaming had

access to his personal Skype account. Moreover, the discovery of search terms

commonly associated with child pornography, joined with Doe’s testimony that

Flaming had shown her images of child pornography, again bolsters the inferential

finding that Flaming downloaded the image in question.

This is not the first case where this Court has upheld a conviction on the

receipt or possession of child pornography based on circumstantial evidence. See,

e.g., United States v. Schene, 543 F.3d 627, 639–40 (10th Cir. 2008). In United

States v. Schene, like in this case, a defendant did “not contest that [a] computer

contained the charged images of child pornography.” Id.; see Aplt. Br. at 16 n.2.

This Court upheld the Schene defendant’s conviction based on similar facts present

here. The investigators found images of child pornography appearing under the

defendant’s user account, the defendant had access to the account, and “witnesses

testified regarding the likelihood of [the defendant] . . . viewing the child

pornography.” Schene, 543 F.3d at 640.

Taken together, ample evidence allowed the jury to find “that it was

[Flaming], and not someone else, who committed the crime[] charged.” See id. at

639 (rejecting the defendant’s argument that someone else downloaded images of

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child pornography when only two people had access to the computer and evidence

tied the images to the defendant’s personal account).

In response, Flaming argues that the lack of specific evidence of when the

images were received undermines the jury’s finding. So, the logic goes, the

computer could have had the images downloaded in the United States, not in South

Korea as the MEJA requires. Along those lines, Flaming adds that the government

provided no specific evidence of where the computer was when the images were

received. But his arguments disregard the record. Forensic examination of the

computer showed that images of child pornography were downloaded onto the

Lenovo computer during the time that Flaming was in South Korea. Moreover, no

evidence suggests that Flaming or anyone else ever used the computer in Colorado,

which again bolsters the inference that the image was downloaded in South Korea.

Sufficient evidence supported the jury’s finding that Flaming received child

pornography in South Korea. Thus, Flaming’s challenge fails, and the district court

did not err when it overruled Flaming’s motion on this issue.

C.

Flaming’s next argument challenges the sufficiency of the evidence supporting

Count 5 of his indictment. On appeal, he contends that the jury lacked sufficient

evidence to find that he attempted to cause a minor to engage in a sexual act by

placing her in fear.

Count 5 charged Flaming with “knowingly attempting” to cause Doe to engage

in a sexual act by threatening or placing her in fear, in violation of 18 U.S.C.

19 Appellate Case: 23-5064 Document: 67-1 Date Filed: 04/08/2025 Page: 20

§ 2242(1). And the district court instructed the jury, without objection, that it could

find that Flaming “knowingly attempted to cause [Doe] to engage in a sexual act” if

it found either that he “threaten[ed] [Doe] or place[d] [her] in fear.” R. Vol. I at 166

(emphasis added).

Flaming moved for a judgment of acquittal on Count 5 on the basis that

§ 2242(1) “requires a threat” and there was no proof he ever threatened Doe on the

night in question. R. Vol. II at 316. At the same time, Flaming “underst[oo]d from

the evidence that” Flaming’s “lewd or indecent proposition [of oral sex] . . .

frightened the minor.” Id.

In opposing the motion, the government explained that “there is no element

that [Doe] had to be threatened,” and that the jury could instead base its finding on

the fact that Flaming’s behavior placed her in fear on the night in question. Id. at

318.

The government states that “[o]n appeal, Flaming no longer argues, as he did

below to the court and the jury, that Count 5 ‘requires a threat’; instead, he asserts the

evidence is insufficient to show that he ‘intended to use fear to cause [Doe] to engage

in a sexual act.’” Aple. Br. at 32 (citation omitted). Reviewing Flaming’s motion to

the district court, R. Vol. II at 316, we agree. As a result, we review Flaming’s

argument on appeal for plain error, understanding that “our review for plain error in

this context differs little from our de novo review of a properly preserved sufficiency

claim.” Gallegos, 784 F.3d at 1359. We thus view the evidence in the light most

favorable to the government and ask whether the evidence and reasonable inferences

20 Appellate Case: 23-5064 Document: 67-1 Date Filed: 04/08/2025 Page: 21

drawn from it would allow a reasonable jury to find the defendant guilty beyond a

reasonable doubt. Id.

18 U.S.C. § 2242(1) states:

Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, or in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the head of any Federal department or agency, knowingly—

(1) causes another person to engage in a sexual act by threatening or placing that other person in fear (other than by threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping) . . . or attempts to do so, shall be fined under this title and imprisoned for any term of years or for life.

Count 5 relates to the alleged events of the November 18 incident, the day that Doe

testified that Flaming told her to perform oral sex on him.

As this Court has recognized, “[t]he definition of ‘fear,’ as used in 18 U.S.C.

§ 2242(1), is very broad,” and it “is satisfied when the defendant’s actions implicitly

place the victim in fear of some bodily harm.” United States v. Castillo, 140 F.3d

874, 885 (10th Cir. 1998); see United States v. Holly, 488 F.3d 1298, 1303 (10th Cir.

2007) (“A violation of § 2242(1) merely requires that the defendant ‘causes another

person to engage in a sexual act by threatening or placing that other person in fear

(other than by threatening or placing that other person in fear that any other person

will be subjected to death, serious bodily injury, or kidnapping).’”).

And this Court has gone further to recognize “[w]hen an older person attempts

to molest a child, there is always a substantial risk that physical force will be used to

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ensure the child’s compliance.” Castillo, 140 F.3d at 885 (emphasis added) (citing

United States v. Reyes-Castro, 13 F.3d 377, 379 (10th Cir. 1993)). So much so that

this Court has upheld a jury’s conviction under § 2242(1) because, “simply from the

nature of the circumstances, [] a male parent attempting to perform sexual acts with

his children would place them in fear of bodily harm.” Id. Such circumstances are

even more obvious when a defendant has previously physically abused a child victim.

See id. at 885–86.

Flaming does not dispute that his conduct “frightened” Doe generally. R. Vol.

II at 316. Flaming, while naked, R. Vol. I at 59, demanded that Doe “get him off,”

R. Vol. II at 274, 300. That demand, the fact that he was naked, and the fact that he

had previously sexually abused Doe collectively allowed the jury to infer that Doe

specifically was afraid of her stepfather abusing her again. Compare Castillo, 140

F.3d at 885–86 (finding evidence of a mother witnessing a defendant physically

abusing a minor allowed a jury to infer “implicit threats of bodily harm” to the

minor), with R. Vol. II at 276 (testifying that Flaming, while drunk, “got on top of

[Doe] and tried to get [her] to suck his penis and he tried to force his penis into [her]

mouth,” while also “chok[ing] [her] up against a wall” when she refused). These

circumstances allowed the jury to infer that “a male parent attempting to perform

sexual acts with his child[] would place [her] in fear of bodily harm.” Castillo, 140

F.3d at 885.

In response, Flaming makes two arguments. First, he asks us to find that he

only intended Doe “to leave the apartment,” Aplt. Br. at 41, instead of what the jury

22 Appellate Case: 23-5064 Document: 67-1 Date Filed: 04/08/2025 Page: 23

found—that he intended Doe to engage in a sexual act. We decline to view the

evidence this way. Giving in to Flaming’s request would be to view the evidence in

the light most favorable to him instead of to the government, which we cannot do.

See Gallegos, 784 F.3d at 1359. For that reason, his argument asking us to reweigh

the evidence gets him nowhere.

Next, Flaming argues that “even if [Doe] was scared, that does not prove it

was Mr. Flaming’s plan to scare [Doe] into having sex with him.” Aplt. Br. at 40. In

all, Flaming wants us to revisit § 2242(1) in the attempt context and require that

defendants have the specific intent to put someone in the fear of harm.

Our precedent forecloses the argument. In United States v. Castillo, we held

that placing someone in “fear” under § 2242(1) only requires “the defendant’s actions

[to] implicitly place the victim in fear of some bodily harm.” 140 F.3d at 885. We

then talked about specific intent under § 2242—or rather, the lack thereof. Castillo

stated that § 2242, “which prohibits sexual acts, require[s] that the defendant

‘knowingly’ committed the act” but does not contain a “specific intent element” like

other sections of the statute have. Castillo, 140 F.3d at 886 (quoting 18 U.S.C.

§ 2242). Thus, Castillo bars Flaming’s argument that the “fear” element under

§ 2242 requires that a defendant specifically intend to place a victim in fear. See id.

In sum, sufficient evidence supported the jury’s finding that Flaming

“knowingly . . . cause[d] another person to engage in a sexual act by . . . placing that

other person in fear . . . or attempt[ed] to do so.” 18 U.S.C. § 2242(1). No error,

plain or otherwise, occurred.

23 Appellate Case: 23-5064 Document: 67-1 Date Filed: 04/08/2025 Page: 24

III.

Flaming next switches his focus to the district court’s evidentiary rulings.

Flaming argues that (A) the district court (i) violated Flaming’s Sixth Amendment

rights under the Confrontation Clause and (ii) abused its discretion under the Federal

Rules of Evidence by limiting the cross-examination of Doe on her purported prior

statements that Flaming had not sexually abused her in South Korea. Next, Flaming

contends that (B) the district court abused its discretion by allowing the government

to introduce versions of electronically stored information, in violation of the best

evidence rule and Federal Rule of Evidence 1006. Flaming’s arguments fail.

On direct examination, Doe testified that she had been sexually abused by

Flaming in the third grade when she lived in Colorado. See R. Vol. II at 277–78

(describing the ways that Flaming touched Doe sexually while living in Colorado).

Doe also testified that Flaming attempted to sexually abuse her in South Korea. See

id. at 275–76 (describing an incident where Flaming attempted to make Doe perform

oral sex and choked her while living in South Korea). On cross-examination, Doe

reaffirmed that “there were things that happened in Colorado and things that

happened in Korea.” Id. at 279.

Putting the abuse in Colorado aside, Flaming focused on challenging Doe’s

testimony about the attempted abuse in South Korea. Flaming elicited testimony

from Doe that she talked to CID investigators “probably about three to four separate

times.” Id. at 280. But when asked about whether Doe ever told the investigators

24 Appellate Case: 23-5064 Document: 67-1 Date Filed: 04/08/2025 Page: 25

about Flaming touching her in South Korea, she said “I don’t remember.” Id. At the

same time, Doe stated that she did “remember talking to people after [she] moved

back from Korea into Colorado.” Id. But she again did not remember telling people

in Colorado that Flaming had touched her while in South Korea.

Flaming then attempted to elicit testimony from Doe to challenge what she

remembered from her conversations with others. Specifically, Flaming asked Doe if

she remembered speaking to anyone at “Sungate Kids” in Colorado in 2017, to which

she responded yes. Id. at 283. Doe was then asked whether she remembered telling

anyone there that Flaming had not touched her in South Korea.

The government objected to this line of questioning as “improper

impeachment” because Flaming had not introduced Doe’s alleged “prior inconsistent

statement” to the investigators. Id. Flaming responded that he was merely “trying

. . . to see what she remembers.” Id. The district court sustained the government’s

objections because Flaming was “essentially speculating that [Doe] made an

inconsistent statement” and “need[ed] to bring up the inconsistent statement” to lay a

proper foundation. Id.

Flaming then pivoted and asked Doe whether it would refresh her memory to

review a report of an interview she gave to the authorities in South Korea on

December 8, 2016, and she agreed it would. The report states in relevant part as

follows:

UNIDENTIFIED PERSON: What about did he try putting his private in your mouth?

25 Appellate Case: 23-5064 Document: 67-1 Date Filed: 04/08/2025 Page: 26

[DOE]: Yeah.

UNIDENTIFIED PERSON: Yeah? How many times did he do that, just that one time?

[DOE]: (No audible response.)

UNIDENTIFIED PERSON: Just that one time? And that was here in Korea or in Colorado?

[DOE]: In Colorado.

R. Vol. III at 38–39.

During a sidebar, Flaming advised the district court that, even though the

transcript reflected that Doe gave “[n]o audible response” when she was asked if

Flaming abused her “many times,” counsel believed that it was apparent from the

video that “she says no” in response to that question. R. Vol. II at 286. The district

court disagreed that Doe’s “[in]audible” talking indicated this response and refused

to “let [counsel] testify as to what [he] heard when the court reporter said ‘no audible

response.’” Id.

Having no success there, Flaming then requested to “refresh [Doe’s] memory

with the actual video and not the transcript.” Id. The district court, “outside the

hearing of the jury,” allowed Flaming to refresh her memory with the video. Id. at

287.

A short time later, the court, still outside the presence of the jury, provided an

explanation of what transpired during the recess. The court stated that Flaming “did

not find a videotape of the December 8th, 2016, interview, and the transcript of that

26 Appellate Case: 23-5064 Document: 67-1 Date Filed: 04/08/2025 Page: 27

interview states that this witness’ response to that question was not audible.” Id. at

288.

That said, Flaming was able to find “a video of a subsequent interview that

occurred on January 8th, 2017, in Korea” that “refers to a previous interview,

presumably the December 8th, 2016, interview.” Id. Flaming then tried to show the

video of the subsequent interview for the purpose of showing “an inconsistent

statement with [Doe’s] testimony on direct.” Id. at 289.

Flaming again ran into “a problem.” Id. (“The video’s not running here, it’s

just static, we have a frozen frame here.”). The district court stated, “we can’t get

that impeachment in, if it is indeed impeachment, because the technology is not

working.” Id. Flaming agreed. Id. And so, the court “sustain[ed] the

[government’s] objection for improper impeachment.” Id. at 290.

Cross-examination continued. Doe testified that she did not recall being asked

by police in South Korea whether Flaming put his penis in her mouth. Id. Flaming

again asked Doe if it would refresh her memory if she saw her statement in the

December 8, 2016 interview, which only contained the reporter’s notation of “[n]o

audible response.” Id. The government objected. Id. at 291 (“Your Honor. We’ve

gone through this already.”). The district court sustained the objection. The court

explained that Doe’s answer merely confirmed her direct examination testimony that

Flaming had attempted to perform oral sex in Colorado and did not address nor

impeach her testimony that Flaming had attempted to force her to perform oral sex in

South Korea.

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Flaming then tried again. Doe agreed that she had testified earlier that

Flaming tried to put his penis in her mouth while they were in South Korea. She

agreed that she could not recall what she told investigators in South Korea about

Flaming attempting to put his penis in her mouth while she was in South Korea, but

she agreed that looking at the December 8, 2016 transcript may help her remember.

The government asked to approach, and, with no objection made, the district court

stated that “the objection’s sustained,” having “been over this three or four times.”

Id. at 294. The court directed defense counsel to “move on.” Id.

On appeal, Flaming challenges the district court’s ruling on cross-examination

(i) under the Confrontation Clause and (ii) under the Federal Rules of Evidence. We

address each in turn.

Flaming raises a Sixth Amendment challenge to the district court’s limitation

on cross-examination. Before turning to the merits, we must determine the

applicable standard of review. It is worth noting that “[t]here may be some tension

within our circuit’s precedents as to the proper standard of review for confrontation

claims premised on cross-examination restrictions.” United States v. Mullins, 613

F.3d 1273, 1283 n.4 (10th Cir. 2010). That said, we need not look to those

precedents in this instance because Flaming did not preserve his constitutional

argument below. He forfeited his constitutional claim, and as such, we review the

claim on appeal for plain error. See United States v. Leffler, 942 F.3d 1192, 1196

(10th Cir. 2019). To prevail, then, Flaming must show “(1) error, (2) that is plain,

28 Appellate Case: 23-5064 Document: 67-1 Date Filed: 04/08/2025 Page: 29

which (3) affects substantial rights, and which (4) seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Mike, 632 F.3d at 691–92

(quoting Gonzalez-Huerta, 403 F.3d at 732). “We conduct this analysis less rigidly

when reviewing a potential constitutional error.” Id. at 692 (quoting United States v.

Dazey, 403 F.3d 1147, 1174 (10th Cir. 2005)).

Quoting generally from several Confrontation Clause cases, Flaming first

argues that the district court’s ruling against admitting a purported prior inconsistent

statement violated the Sixth Amendment. But Flaming fails to show any error.

A criminal defendant’s Sixth Amendment right “to be confronted with the

witnesses against him,” U.S. Const. amend. VI, affords “the opportunity of cross-

examination,” Davis v. Alaska, 415 U.S. 308, 315–16 (1974). The Confrontation

Clause thus grants “the right to confront the prosecution’s witnesses for the purpose

of challenging their testimony.” Washington v. Texas, 388 U.S. 14, 19 (1967).

That said, the right has its limits. “[T]rial judges retain wide latitude insofar

as the Confrontation Clause is concerned to impose reasonable limits on such cross-

examination based on concerns about, among other things, harassment, prejudice,

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

marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). Trial

judges retain this discretion because “the Confrontation Clause guarantees an

opportunity for effective cross-examination, not cross-examination that is effective in

whatever way, and to whatever extent, the defense might wish.” Id. (quoting

Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam)).

29 Appellate Case: 23-5064 Document: 67-1 Date Filed: 04/08/2025 Page: 30

Looking at the limitation on cross-examination here, the district court did not

err, plainly or otherwise. The court’s limitation was “directed only to the general

extent of cross-examination” by what Flaming could lay a proper foundation for.

United States v. Atwell, 766 F.2d 416, 419 (10th Cir. 1985) (per curiam). The court

told him directly that if he wanted to impeach Doe using a prior inconsistent

statement, he “need[ed] to bring up the inconsistent statement.” R. Vol. II at 283.

Indeed, Flaming had multiple opportunities to cross-examine Doe on any prior

inconsistent statements; he merely failed to provide the proper foundation to get the

cross-examination to where he wanted.

Again and again, the district court allowed Flaming to cross-examine Doe

about any prior inconsistent statement. See id. at 282–84 (cross-examining Doe

about what she said to others). And not only that—the court allowed him to attempt

to lay a foundation for the statement through other methods. See id. at 288 (a video

of the December 8, 2016 interview); id. at 289 (a video of a “January 8th, 2017,

interview with CID investigators in Korea” that “refers to a previous interview,

presumably the December 8th, 2016, interview”).

But the problem was that Flaming could not point to anything Doe had actually

said that was inconsistent with her testimony. Instead, the only thing Flaming

pointed to was an interview where Doe gave “[n]o audible response,” id. at 286, and

where her statements were merely “consistent” with her statement that Flaming

attempted to obtain oral sex in Colorado, id. at 292.

30 Appellate Case: 23-5064 Document: 67-1 Date Filed: 04/08/2025 Page: 31

Thus, it is clear that Flaming was afforded the opportunity to develop his

impeachment strategy based on inconsistent statements. Nowhere did the district

court say that Flaming could not talk about the “entire area” of any prior inconsistent

statements. Atwell, 766 F.2d at 419. Rather, the court repeatedly permitted him to

try to lay a foundation for such statements. Seeing that Flaming failed to lay a

foundation, the court simply limited the “general extent” of the inquiry into what

Flaming could actually point to as inconsistent—which, in this case, was nothing. Id.

Thus, the court imposed no more than “reasonable limits on [] cross-examination.”

Van Arsdall, 475 U.S. at 679. No error, let alone a plain one, occurred.

We next determine whether the district court abused its discretion under the

Federal Rules of Evidence. See United States v. Dowlin, 408 F.3d 647, 659 (10th

Cir. 2005). Under the abuse-of-discretion standard, “we will not disturb an

evidentiary ruling absent a distinct showing that it was based on a clearly erroneous

finding of fact or an erroneous conclusion of law or manifests a clear error in

judgment.” Id. (brackets omitted) (quoting United States v. Jenkins, 313 F.3d 549,

559 (10th Cir. 2002)).

Flaming argues that he attempted to “impeach” Doe “with her prior

inconsistent statements” “under Rule 613(b),” and that, if the district court had

allowed the cross-examination to proceed, Doe would have had the opportunity to

explain her prior denials that Flaming assaulted her in South Korea. Aplt. Br. at 47.

Relatedly, Flaming argues that the district court should have allowed “the prior

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statements to refresh [Doe]’s memory” under Rule 612, because she testified that she

could not remember what she told investigators in South Korea and she agreed each

time that reviewing the interviews could help her remember. Id.

Prior inconsistent statements are an accepted means of impeaching a witness,

but before a defendant may do so, he must first lay an adequate foundation. See

Wheeler v. United States, 382 F.2d 998, 1000–01 (10th Cir. 1967) (“It is generally

accepted that after a proper foundation has been laid, a witness’ testimony may be

discredited by showing former inconsistent or contradictory statements, and the jury

is entitled to consider such inconsistent statements in determining the weight to be

given to the witness’ testimony.”).

To lay a foundation, Flaming had to demonstrate that Doe’s prior statements to

investigators were in fact inconsistent with her trial testimony. In other words, “[a]s

a preliminary matter,” Flaming needed to provide at least two statements that he

thought were inconsistent for the court’s consideration. United States v. Hale, 422

U.S. 171, 176 (1975). Only then could a court “be persuaded that the statements are

indeed inconsistent.” Id. And if one fails to “establish a threshold inconsistency,”

the purported statement offered for impeachment “lacks any significant probative

value and must therefore be excluded.” Id.

Here, despite repeated efforts employing cross-examination responses,

investigation reports, and videos, Flaming could not offer any evidence that Doe ever

told investigators that Flaming had not abused or attempted to abuse her in South

Korea. The district court thus did not abuse its discretion in finding that Flaming

32 Appellate Case: 23-5064 Document: 67-1 Date Filed: 04/08/2025 Page: 33

failed to “establish a threshold inconsistency.” Id. Unless Flaming could first “bring

up the inconsistent statement,” this line of questioning was mere “speculat[ion]” that

Doe had made an inconsistent statement. R. Vol. II at 283–84. All considered, no

prior inconsistent statement could be admitted, see Fed. R. Evid. 613, nor was there

any writing that Flaming could produce that could refresh Doe’s memory, see Fed. R.

Evid. 612.

In response, Flaming attempts to read the transcript of Doe’s interview in a

way in which Doe conceivably provided a prior inconsistent statement. Keeping in

mind our standard of review, we cannot read the transcript as Flaming would have us.

In the report, an interviewer asked Doe whether Flaming had “tr[ied] putting

his private in [her] mouth,” and, after she acknowledged he had, the interviewer then

asked, in a single statement, “[h]ow many times did he do that, just that one time?,”

to which there was “[n]o audible response.” R. Vol. III at 38–39. Without any

“audible response,” the interviewer continued his line of questioning, first repeating

his last question, “Just that one time?,” and then asking, “that was here in Korea or in

Colorado?” Id. at 39. Doe did not fully answer both questions, only replying, “[i]n

Colorado.” Id.

From this dialogue, Flaming believes that Doe told investigators that he did

not attempt to obtain oral sex from her in South Korea, thereby creating an

inconsistent statement. Flaming’s argument may carry some weight if one reads into

what Doe does not say. In Flaming’s interpretation, Doe’s silence may have

acknowledged that an incident with Flaming occurred “[j]ust that one time” and that

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it only occurred “[i]n Colorado.” Id. In the government and the district court’s

interpretation, however, Doe only responded to the question that Flaming assaulted

her in “Colorado” and did not respond to whether it happened other “times” or

whether it happened in South Korea as well. Id.

We cannot forget that the standard of review here determines what to do when

the record supports two viable yet contradictory positions. Under an abuse-of-

discretion standard, “we will not disturb an evidentiary ruling absent a distinct

showing that it was based on a clearly erroneous finding of fact.” Dowlin, 408 F.3d

at 659 (cleaned up). And “[w]here there are two permissible views of the evidence,

the factfinder’s choice between them cannot be clearly erroneous.” United States v.

Martinez, 92 F.4th 1213, 1227 (10th Cir. 2024) (quoting Anderson v. City of

Bessemer City, 470 U.S. 564, 574 (1985)).

Out of two viable interpretations of the transcript, the district court chose one.

The record supports the district court’s decision that Doe’s “[i]n Colorado” statement

did not say that this was the only time Flaming forced her to give him oral sex.

R. Vol. III at 39. Indeed, the transcript shows that she did not answer the

investigator’s question about how many times Flaming’s attempted abuse occurred.

Id. Instead, the only thing the statement shows is that Flaming abused Doe in

Colorado, which is not inconsistent with her testimony that he abused her in

Colorado and South Korea. Thus, Flaming’s argument fails.

34 Appellate Case: 23-5064 Document: 67-1 Date Filed: 04/08/2025 Page: 35

Lastly, Flaming maintains that the district court abused its discretion by

allowing the government to introduce summaries of electronically stored information,

in violation of the best evidence rule. Despite titling the issue in his brief as dealing

with the “best evidence rule,” Aplt. Br. at 50, he does not provide analysis using the

rule. Flaming’s briefing is best understood as a different challenge to admitting

summaries of his Skype chats with his wife under Federal Rule of Evidence 1006.

As such, Flaming waives the best-evidence-rule argument by failing to adequately

brief the issue on appeal. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679

(10th Cir. 1998) (“Arguments inadequately briefed in the opening brief are

waived.”); United States v. Kunzman, 54 F.3d 1522, 1534 (10th Cir. 1995) (declining

to address issues only “nominally raised” and not developed “with[] supporting

argument”). We only consider his argument about the admission of summaries under

Rule 1006.

This Court reviews a district court’s rulings on evidentiary matters under Rule

1006 for abuse of discretion. United States v. Thompson, 518 F.3d 832, 858 (10th

Cir. 2008). An abuse of discretion occurs if the district court’s ruling “was based on

a clearly erroneous finding of fact or an erroneous conclusion of law or manifests a

clear error in judgment.” Dowlin, 408 F.3d at 659 (quoting Jenkins, 313 F.3d at

559).

In anticipation of trial, the government’s forensic expert, James Fottrell,

reviewed the Skype chat returns obtained from Microsoft associated with Flaming’s

wife’s Skype account, and created a set of documents summarizing and organizing

35 Appellate Case: 23-5064 Document: 67-1 Date Filed: 04/08/2025 Page: 36

her chats with Flaming. At trial, after the government qualified Fottrell as an expert,

Fottrell testified that the documents were accurate depictions of the actual data that

law enforcement received from Microsoft pursuant to the search warrant return for

the wife’s Skype account. Fottrell had prepared the documents using the information

he had obtained from “the LG phone associated with” Flaming’s wife. R. Vol. II at

266. And as the government moved to admit these documents, Fottrell stated that the

documents were accurate copies of documents that he prepared for trial, but he did

not specifically say they were accurate representations of the underlying data.

Flaming objected to the admission of Fottrell’s documents, asserting they were

“demonstrative aids and not an exhibit or actual evidence.” Id. at 248. The

government argued that the documents were admissible because they contained

“excerpts of the [Skype] chats” reflecting Flaming’s own words, and that it was

neither necessary nor practical to introduce the 90 or so pages of the chats themselves

because they “contain[ed] numerous amounts of hearsay that would not be able to get

into evidence before the jury.” Id. The district court agreed with the government and

admitted the documents. Following Fottrell’s direct examination, Flaming “ha[d] no

questions for this witness.” Id. at 269.

The Federal Rules of Evidence allow a party to present “a summary, chart, or

calculation to prove the content of voluminous writings, recordings, or photographs

that cannot be conveniently examined in court.” Fed. R. Evid. 1006(a) (emphases

added). “Although the information upon which a Rule 1006 summary is created need

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not itself be admitted into evidence, it must still be admissible.” United States v.

Channon, 881 F.3d 806, 810 (10th Cir. 2018).

Rule 1006 also requires that to introduce a summary into evidence, its

“proponent must make the originals or duplicates available for examination or

copying, or both, by other parties at a reasonable time and place.” Fed. R. Evid.

1006(b). To define “originals” in Rule 1006, we look to Rule 1001(d), which defines

an “original” of electronically stored information as “any printout—or other output

readable by sight—if it accurately reflects the information.” Fed. R. Evid. 1001(d).

“In other words, the question is whether the spreadsheets [or summaries] accurately

reflect the information found in the underlying database.” Channon, 881 F.3d at 810.

And “[t]he government is required to lay a foundation to this effect.” Id.

Also relevant here, under Rule 801, hearsay is defined as an oral or written

assertion made by a declarant outside of a trial or hearing and offered to prove the

truth of the matter asserted. Fed. R. Evid. 801(c). That said, Rule 801(d)(2)(A)

provides a relevant exclusion: a statement that “is offered against an opposing party”

and that “was made by the party” is not hearsay. Fed. R. Evid. 801(d)(2)(A).

Flaming asserts that the district court erroneously admitted Fottrell’s

summaries “in lieu of evidence.” Aplt. Br. at 53. This could not be further from the

truth. The government admitted evidence. And Rule 1006 allowed the government

to present “a summary . . . to prove the content of voluminous writings . . . that

cannot be conveniently examined in court.” Fed. R. Evid. 1006(a).

37 Appellate Case: 23-5064 Document: 67-1 Date Filed: 04/08/2025 Page: 38

Importantly, “the information upon which a Rule 1006 summary is created

need not itself be admitted into evidence.” Channon, 881 F.3d at 810. But that

information on which the summary is based “must still be admissible.” Id. Here, the

district court properly admitted the summaries of the Skype chats because the

underlying information—Flaming’s chats with his wife—was admissible against

Flaming as an opposing party admission, and thus not hearsay, under Federal Rule of

Evidence 801(d)(2)(A). See United States v. Alcorta, 853 F.3d 1123, 1142 (10th Cir.

2017) (holding that “all the phone calls in which Defendant participated and his text

messages . . . were admissible against him under Rule 801(d)(2)(A) as statements by

an opposing party”).

Flaming’s next argument is that Fottrell “did not say that the [underlying

materials were] ‘voluminous.’” Aplt. Br. at 52. Rule 1006 allows summaries to be

used if they “prove the content of voluminous writings.” Fed. R. Evid. 1006(a)

(emphasis added). The Rule does not further define voluminous, nor does it require a

party to say the word “voluminous” in proving that a summary covers “voluminous

writings.” Id.

Here, the record supports the district court’s ruling. In response to Flaming’s

objection, the government explained that the Fottrell documents summarized between

90 and 100 pages of Skype messages, which contained “numerous amounts” of

inadmissible hearsay. R. Vol. II at 248. With that as the dialogue, we cannot disturb

the district court’s evidentiary ruling because it was neither “based on a clearly

38 Appellate Case: 23-5064 Document: 67-1 Date Filed: 04/08/2025 Page: 39

erroneous finding of fact” or “a clear error in judgment.” Dowlin, 408 F.3d at 659

(quoting Jenkins, 313 F.3d at 559).

Flaming next attacks Fottrell’s methodology in creating these summaries,

claiming that Fottrell “cherry pick[ed]” from the underlying data. Aplt. Br. at 53.

But Fottrell testified—and the district court found when it admitted the summaries—

that those documents were accurate representations of the underlying data. R. Vol. II

at 247. When asked whether the summaries were “true and accurate depictions of the

data [Fottrell had] seen,” Fottrell responded that “[a]lmost all of [the data] came from

the Skype search warrant return for [Flaming’s wife’s] account.” Id.

In sum, Flaming waives his argument under the best evidence rule, to the

extent he makes one, by failing to adequately brief the issue on appeal. And the

district court did not abuse its discretion in admitting summaries of Flaming’s Skype

chats with his wife under Fed. R. Evid. 1006 because the information contained in the

summaries was admissible in itself, voluminous, and accurate from the original data.

IV.

For these reasons, we AFFIRM.