NOT RECOMMENDED FOR PUBLICATION File Name: 25a0592n.06
No. 24-3716
UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Dec 19, 2025 KELLY L. STEPHENS, Clerk ) UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ON APPEAL FROM THE UNITED ) v. STATES DISTRICT COURT FOR ) THE NORTHERN DISTRICT OF ) RICHARD EBY, OHIO ) Defendant-Appellant. ) OPINION )
Before: WHITE, STRANCH, and MURPHY, Circuit Judges.
JANE B. STRANCH, Circuit Judge. Richard Eby appeals his criminal conviction
stemming from his participation in an online chatroom that exploited underage girls. Eby
challenges his conviction, arguing that the district court erred in three ways: by permitting the
Government to present expert testimony at trial; by improperly responding to a jury question; and
by admitting evidence of other acts of child sexual exploitation by Eby. For the following reasons,
we AFFIRM.
I. FACTUAL BACKGROUND
On March 12, 2020, a grand jury in the Northern District of Ohio charged Richard Eby
with conspiracy to engage in sexual exploitation of children, in violation of 18 U.S.C. §§ 2251(a)
and (e) (count 1); sexual exploitation of children, in violation of 18 U.S.C. §§ 2251(a) and (2)
(count 2); conspiracy to receive visual depictions of minors engaged in sexually explicit conduct,
in violation of 18 U.S.C. §§ 2252(a)(2) and (b)(1) (count 3); and conspiracy to access with intent
to view child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2) (count 4). The No. 24-3716, United States v. Eby
charges originated from Eby’s participation in a group that lured underage girls to a chatroom-
based website and coerced them into engaging in sexual acts on camera.
In 2015, Adam Christensen, an FBI special agent who was trained in forensic tools and
analysis of computers, began investigating a group of individuals on chateen.com (“Chateen”), a
social media platform that allows webcam-based chatting between two persons. Members of the
group would collectively recruit girls from other social media websites to virtual chatrooms on
Chateen and would then encourage them to engage in sexual activity on camera. Christensen
assumed the identity of an individual within Chateen who was cooperating with authorities, and
over the course of approximately three weeks, he collected the IP addresses and usernames of
numerous Chateen members. One such IP address, connected with the username “perp6969,”
belonged to Eby.
Law enforcement ultimately seized Eby’s laptop and other electronic devices, and
Christensen conducted a forensic analysis of the laptop using two different software programs,
Internet Evidence Finder (“IEF”) and Axiom. The programs identified “artifacts” on the laptop,
such as files or browser history, that might be of interest. Christensen then reviewed the artifacts
and “tagged” certain ones that he believed were particularly relevant to the investigation, which
would allow investigators to quickly find relevant material in the report. In total, he tagged
approximately 17,703 artifacts.
Christensen then created a portable case file that contained the IEF and Axiom reports and
the tagged artifacts—minus any contraband, which could only be viewed at the FBI field office.
Over a four-day period approximately eleven months before trial, the Government permitted Eby’s
defense expert, Matthew Curtin, to inspect the images, videos, and other extractions from Eby’s
electronic devices, as well as the portable case file and related reports, at an FBI field office.
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On January 11, 2024, the Government provided Eby with a notice of expert testimony,
pursuant to Federal Rule of Criminal Procedure 16(a)(1)(G), that identified Christensen’s
qualifications and experience as well as twelve areas in which he was expected to testify. In the
notice, the Government maintained that it believed that Christensen’s possible testimony “likely
do[es] not qualify as expert or opinion testimony” but was providing notice out of “an abundance
of caution.” R. 87-1, Rule 16 Notice, PageID 1413. The notice also stated that Eby has “had
access to Agent Christensen’s reports and [has] also been privy to his opinions about the operation
of the chatrooms on Chateen.” Id. Eby, however, claims that he did not have access to this
information.
At trial, which began on January 22, 2024, Agent Christensen testified to his forensic
analysis of Eby’s laptop and the images of child sexual abuse materials found there. This evidence
was introduced through Exhibits 62 and 63, which contained exported information from the Axiom
portable case file and displayed a selected number of artifacts—8 tags in Exhibit 62 and 78 tags in
Exhibit 63. The district court permitted the introduction of these exhibits over defense counsel’s
objection that the exhibits were “reports generated by an expert that weren’t [properly] turned
over” and despite the Government’s late disclosure of these exhibits.
During jury deliberation, the district court received a question from the jury, asking
whether “any of the images or videos found on Eby’s computer [were] of the minor victims?” R.
81, Trial Tr., PageID 1294. After conferring with the parties, and entertaining the objections of
counsel, the court instructed the jurors that “there was no evidence on Eby’s computer, Exhibits
44 and 51, . . . that the images were or were not the minor victims.” R. 81, PageID 1295.
On January 26, 2024, the jury convicted Eby of conspiracy to engage in sexual exploitation
of children, conspiracy to receive visual depictions of minors engaged in sexually explicit conduct,
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and conspiracy to access with intent to view child pornography (Counts 1, 3, and 4). It found him
not guilty of sexual exploitation of children (Count 2). Eby was sentenced to a total of 390 months’
imprisonment to be followed by a supervised release term of ten years.
Eby filed a motion for a new trial claiming substantial legal errors, including that the
government’s notice of expert testimony was deficient; admission of Exhibits 62 and 63 was
erroneous; and the district court’s response to the jury’s question was improper and should have
instructed the jury to rely on its collective recollection. The district court conducted an evidentiary
hearing at which both Christensen and Curtin testified. It concluded that the Government’s notice
was proper and that the Government did not otherwise offer improper expert testimony and
exhibits. Regarding its response to the jury’s question, the district court found that it had not
mislead the jury or usurped its fact-finding role. This appeal followed.
II. LEGAL ANALYSIS
A. Expert Testimony Issues
Eby contends that the district court erred in admitting the testimony of Agent Christensen
because the Government did not properly notice his expert testimony under Federal Rule of
Criminal Procedure 16 and did not timely disclose his expert reports or trial exhibits.
1. Standard of Review
We review for abuse of discretion a court’s decision to admit or exclude evidence as well
as its rulings on issues raised under Federal Rule of Criminal Procedure 16(a)(1)(G). United States
v. Ganier, 468 F.3d 920, 925 (6th Cir. 2006); United States v. White, 492 F.3d 380, 398 (6th Cir.
2007). We reverse a court’s erroneous evidentiary decision only if the defendant can show that it
caused substantial prejudice or affected a substantial right. United States v. Collins, 799 F.3d 554,
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570 (6th Cir. 2015). A defendant faces substantial prejudice if the error likely substantially
affected his conviction. White, 492 F.3d at 404.
2. Expert Testimony
The parties first dispute whether Christensen’s testimony constituted expert testimony
pursuant to Federal Rule of Evidence 702. Eby asserts that Christensen was an expert witness
because his testimony required experience and specialized knowledge far beyond that of a lay
person. The Government, however, maintains that his testimony most likely did not constitute
expert or opinion testimony and that “the forensic software [Christensen] utilized is the expert.”
Appellee’s Br. 25.
Under Federal Rule of Evidence 702, a “witness who is qualified as an expert by
knowledge, skill, experience, training, or education may testify in the form of an opinion or
otherwise . . . .” To testify as such, the proponent must demonstrate that:
it is more likely than not that (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.
Id. We have determined that a law enforcement agent provided expert testimony when he
generated a report using forensic software, the interpretation of which required application of
knowledge and familiarity with computers well beyond that of the average layperson. Ganier, 468
F.3d at 926.
In this case, Agent Christensen testified to his background, noting that he had attended
numerous classes and trainings involving forensic tools and computer analysis. Christensen also
testified to his undercover investigation into the Chateen website as well as his forensic analysis
of Eby’s laptop. To conduct this analysis, he first duplicated the hard drive on Eby’s computer,
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then ran the duplicated hard drive through two different forensic programs, IEF and Axiom, which
processed all the information on the hard drive and searched for different artifacts of potential
interest. Christensen testified that the artifacts of potential interest included computer files,
browser history, bookmarks, shortcuts, and LNK files. He also found anti-forensics software,
evidence of a VPN, and flash cookies from the Chateen website. Christensen also recovered
photographs and videos that had been deleted but were still on the computer’s unallocated space.
To recover such artifacts, Christensen “carve[d] out the data and put it back together [to] reproduce
the file that was there.” R. 80, Trial Tr., PageID 1023. Such knowledge and familiarity with
computers and the forensic software programs was well beyond the average layperson’s
knowledge in this arena. See Ganier, 468 F.3d at 926.
Accordingly, we find that Christensen, in testifying about the forensic analysis of
computers, media devices, and other items of electronic evidence, was an expert witness.
3. Proper Rule 16 Disclosure
When the Government proffers an expert witness, it must give the defendant a written
summary of any testimony that it intends to use in its case-in-chief at trial under Federal Rules of
Evidence 702, 703, and 705, if the defendant so requests. White, 492 F.3d at 405; Fed. R. Crim.
P. 16(a)(1)(G) advisory committee’s note to 2022 amendment. Known as a Rule 16 notice, it
requires the Government to describe “the witness’s opinions, the bases and reasons for those
opinions, the witness’s qualifications, and a list of other cases in which the witness has testified in
the past 4 years.” Fed. R. Crim. P. 16(a)(1)(G). Expert disclosures are to be provided “sufficiently
before trial to provide a fair opportunity for the defendant to meet the government’s evidence.”
Id. To support reversal based on a deficient Rule 16 notice, Eby must show that he was surprised
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at trial and that the outcome of the case would have been different had he received a more detailed
notice. White, 492 F.3d at 407.
Eby contends that the Government’s Rule 16 notice for Christensen was deficient because
it contained only broad statements that provided neither a “complete statement of all opinions” nor
the “basis and reasons for them.” Specifically, Eby first objected at trial to the introduction of
certain evidence from the Axiom portable case file, arguing that it was not turned over to him
pursuant to Rule 16. At a post-trial evidentiary hearing before the district court, however, Curtin
testified on direct examination that he was not given the Axiom portable case file, but then on
cross-examination, he admitted that he did have access to the file and claimed that he just did not
remember reviewing it.
Eby reiterates his argument that the Government violated Rule 16 by providing an
insufficient notice that erroneously indicated that he had been given prior access to the relevant
data. He also argues that the Government violated Rule 16 because it did not give him a portable
case file with the correct tags, did not explain how Christensen identified and tagged that
information, and did not tell him what those tags represented. The record reflects the following.
Eby’s defense expert admitted that he did have access to the Axiom portable case file and the
tagged information therein when he was provided a scheduled visit to Christensen’s office to view
the electronic data from February 14 to February 17, 2023, eleven months before trial. Prior to
Curtin’s visit, Christensen prepared a drive containing several folders, including one labeled,
“Portable Case File,” which contained the portable case files of all the forensic reports generated
from the electronic devices seized in this case. Included in this folder was the Axiom portable
case file with Christensen’s tagged artifacts. Christensen went over the different folders and
information on the drive with Curtin, explaining that the portable case files did not contain
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contraband and could be removed from the FBI field office. Curtin testified that he did not take
the portable case file and does not remember reviewing it during this time, but he does not dispute
that he had access to it. Although Curtin chose not to review the portable case file at that time and
did not take it with him, the file remained available to him for viewing for the next eleven months
leading up to trial.
Eby further contends that the purportedly deficient Rule 16 notice affected his case because
he was surprised at trial. As noted above, however, Eby and his expert witness had access to the
underlying information that formed the basis of Christensen’s forensic analysis testimony for
eleven months prior to trial. Eby does not explain how he was surprised at trial or how the outcome
of his case would have been different. We have previously concluded that reversal was not
warranted, even if the Government provided a deficient Rule 16 notice, because the defendant did
not meaningfully explain how a more detailed notice would have changed the outcome of his case
given that the “content and basis of [the expert’s] testimony was the subject of a substantial amount
of pretrial discourse.” United States v. Wells, 211 F.3d 988, 997 (6th Cir. 2000).
On this record, Eby’s unsupported claim of being surprised at trial is insufficient.1 We
reject Eby’s claim of reversible error based on an allegedly deficient Rule 16 notice.
1. Exhibits 62 and 63
Eby argues that the district court erred when it admitted Exhibits 62 and 63 because they
were expert reports that should have been disclosed to him prior to trial. He further argues that
the portable case file produced to him in discovery did not contain the same tags as Exhibits 62
and 63. The Government counters that these exhibits were trial exhibits and not expert reports
and, therefore, it did not need to include them in its Rule 16 notice. The Government also contends
1 To the extent Eby suffered any surprise, it would be because of his expert’s, not the Government’s, conduct.
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that the material on which the exhibits are based is the same material from the portable case files
that Eby’s expert had full access to before trial.
As noted above, the Government must give a defendant a written summary of any
testimony that it intends to use under Rules 702, 703, and 705. White, 492 F.3d at 405, 407. The
district court determined that Exhibits 62 and 63 contained summaries of raw information exported
from Christensen’s Axiom portable case file, and therefore, they were merely trial exhibits
summarizing the expert testimony but not expert reports themselves. Furthermore, the district
court found that the admission of these exhibits did not violate Eby’s rights because Eby’s expert
had access to the expert reports from which the exhibits drew eleven months before trial.
Eby is correct that the Government did not timely disclose Exhibits 62 and 63. The district
court ordered the disclosure of trial exhibits twelve days prior to the start of trial. The Government
concedes that it may have failed to disclose these exhibits by the court-ordered deadline, and it
appears that the Government did not disclose these exhibits until the first morning of trial. Eby
asserts that this failure warrants reversal of his conviction. The Government’s violation of the
district court’s order is concerning and leads us to review whether Eby was prejudiced. The district
court determined that Eby failed to demonstrate that the late disclosure prejudiced him. On appeal,
Eby asserts only conclusorily that the failure to disclose these exhibits by the court-ordered
deadline substantially violated his rights. He does not explain how he was prejudiced given that
he had access to the information forming the basis of these reports for eleven months prior to trial.
In a similar scenario, we have held that a defendant was not prejudiced where the Government
submitted summary exhibits two days before trial because the defense had prior access to the
information in the exhibits. United States v. Peck, 62 F. App’x 561, 566 (6th Cir. 2003). And
here, Eby had access to the Axiom portable case file—which Exhibits 62 and 63 summarize—
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approximately eleven months prior to trial. Accordingly, we hold that the district court did not
abuse its discretion in determining that Eby failed to establish prejudice.
We reject Eby’s argument that the district court erred in admitting Christensen’s expert
testimony, and that the Government’s Rule 16 notice and late disclosure of two trial exhibits
warranted reversal.
B. Response to the Jury’s Inquiry
Eby asserts that the district court erred in its response to a jury question because its response
usurped the jurors’ role as fact finders and impermissibly shifted the burden of proof to Eby.
Where, as here, a party objects to a court’s response to a jury question, we review for abuse
of discretion. United States v. Davis, 490 F.3d 541, 548 (6th Cir. 2007); United States v. Moran,
771 F. App’x 594, 601 (6th Cir. 2019). A district court does not abuse its discretion when
responding to a factual jury question “unless, taken as a whole, the answers rendered the jury
instructions, confusing, misleading, and prejudicial.” United States v. Maike, No. 22-6114, 2025
WL 1770555, at *2 (6th Cir. June 26, 2025) (quoting United States v. Fisher, 648 F.3d 442, 447
(6th Cir. 2011)).
2. Legal Analysis
In this case, the jury sent a question to the court: “Were any of the images or videos found
on Eby’s computer of the minor victims?” R. 81, PageID 1294. The district court initially
proposed to the parties a response directing the jurors to rely on their own recollection, but defense
counsel objected and requested an instruction that “told the jurors that there was no evidence that
the images found on Mr. Eby’s computer were of the minor victims.” But the Government
objected to that instruction. The district court then offered defense counsel a choice between two
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instructions: to either (1) instruct the jurors to rely on their own memory, or (2) instruct them that
there was no evidence on Eby’s computer that the images were or were not the minor victims.
(Id.). Defense counsel objected to both but noted its preference for the latter instruction. The
district court ultimately instructed the jurors that “there was no evidence on Eby’s computer,
Exhibits 44 and 51, . . . that the images were or were not the minor victims.” R. 81, PageID 1295.
Eby now contends that the district court should have advised the jury to rely on their own
recollection of the evidence presented at trial. But defense counsel, at least twice, rejected this
very instruction. If the district court erred in not giving the jury this instruction, Eby invited such
an error. And a party generally may not appeal an error that he himself invited. United States v.
Barrow, 118 F.3d 482, 490 (6th Cir. 1997). Indeed, we only review an invited error where the
inviting party demonstrates that failing to do so would cause manifest injustice. United States v.
Akridge, 62 F.4th 258, 264 (6th Cir. 2023). And a party fails to show manifest injustice where he
does not even mention it in his briefing. Id. In this case, Eby has not shown manifest injustice as
he does not explain why the failure to give this instruction created such injustice.
The district court’s instruction, moreover, did not render the jury instructions confusing,
misleading, or prejudicial nor did it improperly shift the burden of proof to Eby. The district court
explained that it gave the instruction to “strike[] the even-handed balance of handling this question
because we don’t know if [the images] were or they weren’t [the minor victims].” R. 81, PageID
1297; see id. at 1294 (justifying instruction because “no one can definitively tell because they’re
not pictures of their faces. They’re pictures of other portions of their bodies.”). Even Eby appears
to agree that the evidence presented was not definitive as he states that “there was no testimony
presented at trial that the images in question were (or were not) of the minor victims.” Appellant’s
Br. 23 (emphasis in original). The district court thus reasoned that, had it given Eby’s proposed
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instruction, “it would likely have invaded the jury’s fact-finding role by advocating for a particular
interpretation of the evidence; namely, that the images were definitively not those of the minor
victims.” R. 100, PageID 1570. By instructing the jury that there was no evidence either way, the
district court properly refrained from commenting on the absence of evidence. See generally
Moran, 771 F. App’x at 601–02. And it was careful to not affirmatively advocate for one party
over the other. See United States v. Infante, 404 F.3d 376, 389 (5th Cir. 2005) (affirming that
district court properly responded to jury question about whether co-defendant drove the same
vehicle as defendant when it advised, “[t]here is no evidence either way”).
The district court did not abuse its discretion in giving the challenged instruction, and we
reject Eby’s assertion that the instruction was error.
Eby asserts that the district court erred when it admitted evidence of other acts of child
molestation under Federal Rule of Evidence 414(a). Specifically, the district court permitted
testimony that, in 2019, law enforcement recovered 243 images on Eby’s computer depicting
minors engaged in sexually explicit conduct. These images were found in Eby’s computer’s
“unallocated space”—meaning that they were not saved in a file or had been deleted. The court
also allowed the Government to display a representative sample of these images to the jury with a
limiting instruction. Eby contends that the prejudicial nature of this evidence substantially
outweighs its probative value, and its introduction damaged his ability to defend himself.
As noted above, we review a district court’s evidentiary decisions for an abuse of
discretion. Ganier, 468 F.3d at 925. Therefore, we will reverse a district court’s decision only if
we have a “definite and firm conviction” that the court erred. United States v. Fowler, 819 F.3d
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298, 304 (6th Cir. 2016) (quoting United States v. Ware, 282 F.3d 902, 907 (6th Cir. 2002)). A
district court errs if it applies an incorrect legal standard, misapplies the correct legal standard, or
relies upon a clearly erroneous finding of fact. Id. at 303–04.
Under Rule 414(a), where a defendant is accused of child molestation, the district court
may admit evidence showing that the defendant committed any other act of child molestation, and
the jury may consider it on any relevant matter. Fed. R. Evid. 414(a). Child molestation is defined
broadly to include any conduct that 18 U.S.C. chapter 110 prohibits. United States v. Libbey-
Tipton, 948 F.3d 694, 701 (6th Cir. 2020); Fed. R. Evid. 414(d)(2)(B). Although a defendant’s
prior bad acts are generally inadmissible to show his propensity to commit the charged offense,
this Rule operates as an exception. United States v. Seymour, 468 F.3d 378, 384–85 (6th Cir.
2006). Still, Rule 414(a) evidence is subject to a Rule 403 analysis, which permits a court to
exclude relevant evidence if its probative value is substantially outweighed by a danger of “unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.” Fed. R. Evid. 403; Libbey-Tipton, 948 F.3d at 704–05.
Here, the relevant Rule 414 evidence is child pornographic images found on Eby’s
computer’s “unallocated” space in 2019. The parties dispute only whether the probative value of
the Rule 414 evidence is substantially outweighed by unfair prejudice. In reviewing a Rule 403
analysis, we grant the district court very broad discretion. Libbey-Tipton, 948 F.3d at 705. When
considering the probative value of such evidence, courts look to the closeness in time between the
acts, the similarity between the instant act and the prior act, and whether a less invasive means of
obtaining the information existed. Id. at 701–02. The court should analyze the evidence’s
probative value separately from the Government’s need for the evidence. Id.
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In this case, after hearing argument from the parties, the district court properly determined
that the Rule 414 conduct was very similar to the conduct charged in the indictment as both
involved self-produced child pornography. Although acknowledging that there were some
differences, including that certain of the Rule 414 videos contained multiple individuals instead of
just one, the district court properly noted that the law does not require the incidents to be identical.
Based on this similarity, the court found that the Rule 414 evidence’s probative value was not
outweighed by any unfair prejudice. We have held that where the charged conduct and the prior
Rule 414 conduct are “sufficiently similar,” the Rule 414 evidence’s prejudicial effect is
outweighed by its probative value. United States v. Hruby, 19 F.4th 963, 969 (6th Cir. 2021).
Exercising its broad discretion, the court determined that the location of the images in the
“unallocated” space on Eby’s computer, as well as whether Eby “ever watched or knew about the
images on his device,” went to the weight of the evidence and not its admissibility. At trial, the
district court instructed the jury that it may not convict Eby “simply because he may have
committed other unlawful acts.” R. 80, Trial Tr., PageID 1020–21. Such a limiting instruction
can mitigate a danger of unfair prejudice. United States v. Kniffley, 729 F. App’x 406, 415 (6th
Cir. 2018) (discussing a similar limiting instruction). Thus, the district court did not err in rejecting
Eby’s argument that he did not possess the Rule 414 images because they were in “unallocated
space” on his computer, which he argued showed that the images were deleted and that he could
no longer access them.
Finally, although Eby argues that the Rule 414 conduct was too remote in time to be
probative, Rule 414 deliberately has no time limit. United States v. Jones, 747 F. App’x 348, 357
(6th Cir. 2018); see also United States v. Underwood, 859 F.3d 386, 393 (6th Cir. 2017) (detailing
the legislative history of Rule 414 including that “[n]o time limit is imposed on the uncharged
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offense for which evidence may be admitted.”) (citation modified). We have upheld the
introduction of Rule 414 evidence that was more than twenty years old. Id. So, the district court
did not abuse its discretion in determining that the three-year period here between the charged
conduct and the Rule 414 conduct was not so prejudicial as to substantially outweigh its probative
value.
We reject Eby’s challenge to the admission of Rule 414 evidence and affirm the district
court’s decision.
III. CONCLUSION
For the foregoing reasons, we AFFIRM Eby’s conviction.
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