United States v. Roderick King

• Court: Court of Appeals for the Third Circuit
• Decided: August 21, 2024
• Docket: 22-3095
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________________

No. 22-3095 _______________________

UNITED STATES OF AMERICA

v.

RODERICK KING, Appellant _______________________

On Appeal from the United States District Court for the Western District of Pennsylvania District Court No. 2-21-cr-00184-001 District Judge: Honorable Christy Criswell Wiegand __________________________

Submitted under Third Circuit L.A.R. 34.1(a) April 17, 2024

Before: HARDIMAN, SMITH, and FISHER, Circuit Judges

(Filed: August 21, 2024)

__________________________

OPINION* __________________________

SMITH, Circuit Judge.

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. A jury found Roderick King guilty of one count of sex trafficking a child in

violation of 18 U.S.C. §§ 1591(a)(1), (b)(2), and 1594(a), and two counts of producing

material depicting the sexual exploitation of a minor, in violation of 18 U.S.C. § 2251(a).

The District Court sentenced King to 444 months on the sex trafficking charge and 360

months on the production charges, to be served concurrently. King appealed. We will

affirm.

I. Facts and Procedural History

After a grand jury indicted King in April 2021 on the above-referenced criminal

offenses, a federal public defender entered his appearance on King’s behalf. Despite

being represented by counsel, King filed a pro se motion to dismiss. The District Court

denied the motion, without prejudice to the filing of a counseled motion. Shortly

thereafter, his federal public defender filed two motions. First, counsel sought to

postpone trial and other pretrial deadlines. Second, counsel moved to withdraw as King’s

attorney. The District Court scheduled a hearing on the motion to withdraw, which

recited a breakdown in the attorney-client relationship. In light of the pendency of the

motion to withdraw, the Court granted a postponement of trial until January 18, 2022.

The Court further determined that the time between its order continuing trial and the new

trial date was excludable under the Speedy Trial Act, see 18 U.S.C. § 3161(h)(7)(A),

because it avoided a miscarriage of justice and gave the defense reasonable time to

effectively prepare the case.

After the hearing on the motion to withdraw, the District Court granted counsel

leave to withdraw and appointed new counsel. King’s new counsel sought leave to 2 reinstate the right to file pretrial motions, which the Court granted. The original trial date

of January 18, 2022, became the deadline for filing those motions. When January 18,

2022, arrived, the District Court, granted another counseled motion for a continuance,

finding an ends-of-justice continuance was needed until February 17, 2022. Trial was set

for March 21, 2022. Then, on February 18, 2022, the Government moved for a brief

extension of time, which the Court granted. Six days later, the Government filed several

trial submissions, including a motion in limine. Within days, at defense counsel’s

request, a two-day extension was granted.

During a pretrial conference on March 15, 2022, King objected to certain

stipulations to which his counsel had agreed. King also requested that his counsel

withdraw, and sought to proceed pro se. After conducting a Peppers colloquy to ensure

that King’s waiver of counsel was knowing and voluntary, the Court granted the request

to proceed pro se. See United States v. Peppers, 302 F.3d 120, 131 (3d Cir. 2002). The

judge also appointed stand-by counsel and rescheduled trial for July 5, 2022.

During that same conference, King reiterated his disagreement with his former

counsel’s decision to enter into certain stipulations with the prosecution. Without these

stipulations, the Government then was required to produce witnesses who could testify to

the authenticity of certain social media accounts. King agreed to waive, under the

Speedy Trial Act, the time between the March 15 conference and the new date for trial.

In an order entered on March 15, the Court declared that the time between March 15 and

the rescheduled trial, which was not to commence until July 5, was excludable under the

Speedy Trial Act because a failure to grant the extension, given King’s new pro se status 3 and his request to withdraw certain stipulations, would likely result in a miscarriage of

justice and would deny King the reasonable time required for trial preparation. 18 U.S.C.

§ 3161(h)(7)(B)(i), (iv).

Once again, before the commencement of trial, King filed several pro se motions.

This time, he moved to dismiss the indictment for violations of the Speedy Trial Act and

the Interstate Agreement on Detainers Act (IADA). The District Court denied that

motion and ruled on numerous other motions, allowing trial to commence on July 5,

2022.

At trial, the Government offered the testimony of not only law enforcement

officers, but also the minor victim herself, who by that time had reached the age of

majority. King did not present any evidence or defense witnesses. The jury found King

guilty on all counts. The District Court conducted a sentencing hearing on December 16,

2022, and imposed a sentence of imprisonment of 444 months on the sex trafficking

count and 360 months imprisonment on each of the two counts of producing material

depicting the sexual exploitation of a minor. Each sentence ran concurrently with the

other counts of conviction. The Court also ordered King to serve a life term of

supervised release and directed him to pay certain fines.

Even before sentence was imposed, King filed a pro se notice of appeal. After

reviewing King’s appellate brief, the Government moved to vacate judgment and remand

for a new trial. The Government explained that it had discovered, in reading King’s pro

se brief, that when King’s first counsel sought to withdraw in October 2021, King had

asked during an ex parte hearing that he be permitted to represent himself. According to 4 King, the District Court had failed to conduct a Peppers colloquy1 during that ex parte

proceeding.

This Court granted the Government’s motion in part, ordered a limited remand,

and stayed the appeal. We instructed the District Court to confirm whether King desired

to continue to represent himself, and if so, to allow him “to accept or reject filings

docketed between October 19, 2021,” the date when his second counsel was appointed,

and March 15, 2022, the date on which he was granted leave to represent himself. Third

Circuit Dkt. No. 36. We directed the District Court, to the extent King would have

handled any filing differently, to resolve whether this “would have so altered the legal or

factual matters at trial as to be a basis for a new trial.” Id. (internal quotation marks and

citation omitted). And we further directed the District Court to “recalculate the Speedy

Trial Act deadline to determine whether King’s trial would have been timely had King

originally made those decisions.” Id. If the trial were determined to have been untimely,

the District Court was directed to explain the remedy it would order.

In compliance with our order, the District Court provided King with the complete

District Court docket and copies of all filings between October 19, 2021, and March 15,

2022. King objected to his counsel’s status report and a few pretrial motions, as well as

several pretrial motions and submissions filed by the Government. Mindful of our

instruction, the District Court considered King’s objections and concluded that “any error

attributable to the delayed Peppers colloquy” in response to the initial request to proceed

1 See Peppers, 302 F.3d at 131. 5 pro se had been “corrected in advance” of the July 5, 2022, trial. Cm/ecf no. 338, at 12.2

The District Court explained that King’s right to self-representation had been “restored”

as of March 15, 2022, and that he had “received ‘a fair chance to present his case in his

own way.’” Id. (quoting McKaskle v. Wiggins, 465 U.S. 168, 177 (1984)). In addition,

the District Court recalculated the time that had elapsed on the speedy trial clock. It

concluded that commencement of King’s trial on July 5, 2022, was timely and consistent

with the Speedy Trial Act.

Before the District Court issued its ruling following remand, which concluded that

King’s right to self-representation had not been violated, King filed in this Court an

amended informal brief, raising nineteen issues. Pursuant to a motion from the

government, we lifted the stay and the parties completed appellate briefing.3

2 Citations to “Cm/ecf no.” refer to the District Court docket entries, United States v. King, 2:21-cr-184, W.D. Pa. 3 The District Court exercised jurisdiction under 18 U.S.C. § 3231. Because King’s notice of appeal was filed before he was sentenced, it was premature. Although our caselaw “permits the ripening of a premature appeal from a decision that is not yet appealable, it does so only to permit review of that decision once it becomes appealable. It does not permit review of subsequent rulings that were not (and could not have been) designated in the notice of appeal.” Marshall v. Comm’r Pa. Dep’t of Corr., 840 F.3d 92, 98 (3d Cir. 2016) (per curiam). Yet United States v. Hashagen, 816 F.2d 899, 901 (3d Cir. 1987) (in banc), held in the context of a direct appeal that “[a] notice of appeal filed after verdict but before sentence, although premature, ripens into an appealable order when the judgment of sentence is entered.” And Federal Rule of Appellate Procedure 4(b)(2) provides that “[a] notice of appeal filed after the court announces a decision, sentence or order—but before the entry of judgment or order—is treated as filed on the date of and after the entry.” While neither Hashagen nor Rule 4(b) directly address whether a premature notice of appeal permits review of a sentence that is subsequently imposed, we believe that a plausible reading of Hashagen and Rule 4(b) permits us to exercise jurisdiction here given the complicated procedural history this case presents, including this Court’s order following the premature notice of appeal in which we retained jurisdiction and ordered a limited remand. 6 II. The Sixth Amendment Right to Self-Representation

King asserts that the District Court violated his right to self-representation

guaranteed by the Sixth Amendment.4 In Faretta v. California, the Supreme Court

declared that the Sixth Amendment “implies a right of self-representation.” 422 U.S.

806, 821 (1975). “In determining whether a defendant’s Faretta rights have been

respected, the primary focus must be on whether the defendant had a fair chance to

present his case in his own way.” McKaskle, 465 U.S. at 177.

Here, King contends that his constitutional right to self-representation was

violated because of the District Court’s failure to accept his initial request to represent

himself during the October 19, 2021, ex parte conference concerning defense counsel’s

motion to withdraw. King does not take issue with the District Court’s ruling on limited

remand that any error attributable to the failure to conduct a Peppers colloquy in October

2021 had been corrected in March 2022 when he took over the defense reins.5

Our review of the record as a whole reveals that after the District Court allowed

King to proceed pro se and advised that the case would “begin anew” for him, he

4 If a defendant’s right to self-representation has been denied, it is structural error and “not subject to harmless-error review.” McCoy v. Louisiana, 584 U.S. 414, 427 (2018). We exercise plenary review in deciding if a district court violated a defendant’s right of self-representation. Peppers, 302 F.3d at 127. 5 We recognize that in his reply brief, King complains about the District Court’s opinion issued pursuant to the limited remand. His argument, however, does not challenge the propriety of the District Court’s ruling that the “reset [of] the game clock” corrected any error. Reply Br. 4. Rather, he contends that despite that “reset,” there was still a violation of the Speedy Trial Act.

7 vigorously represented himself. SA946.6 He filed numerous pro se motions and opposed

the Government’s pleadings. And he was personally involved in every facet of trial. See

Cm/ecf no. 338, at 12 n.1. Because McKaskle instructs that our “primary focus” is on

whether King had a “fair chance to present his case in his own way,” 465 U.S. at 177, we

conclude that the District Court’s delay in allowing King to proceed pro se did not

deprive him of his Sixth Amendment right to self-representation given the circumstances.

See United States v. Rice, 776 F.3d 1021, 1025-26 (9th Cir. 2015) (concluding that the

delay in addressing the defendant’s self-representation request did not offend the Sixth

Amendment because the trial court “reset the game clock” and he “received precisely

what the Sixth Amendment guarantees”); United States v. Lee, 760 F.3d 692, 695 (7th

Cir. 2014) (concluding that a “re-do” of the suppression hearing would correct the

deprivation of the procedural error that resulted when defendant was unable to represent

himself at the suppression hearing).

III. Speedy Trial Claims

We turn next to King’s speedy trial claims. He asserts a claim under both the

Sixth Amendment and the Speedy Trial Act. We discern no violation under either.

A. Speedy Trial Act7

6 Citations to the “SA” refer to the Supplemental Appendix filed by the Government. 7 We conduct “plenary review over the district court’s construction and interpretation of the Speedy Trial Act and its provisions regarding excludable time. The findings of fact to which the district court applies the Speedy Trial Act are reviewed under a clearly erroneous standard.” United States v. Hamilton, 46 F.3d 271, 273 (3d Cir. 1995) (citations omitted). 8 King contends that his rights under the Speedy Trial Act were violated. He does

not directly take issue with the District Court’s calculation following limited remand that

only 58 days of the 70-day speedy trial clock had run. Instead, he contends that the

District Court’s findings fail to support the “ends of justice” continuances, which were

granted under 18 U.S.C. § 3161(h)(7)(A). We are not persuaded. The District Court

docket entries granting the continuances set forth the factual bases warranting the

extension of time needed by defense counsel—and ultimately by King proceeding pro

se—to effectively prepare for trial. See United States v. Adams, 36 F.4th 137, 146 (3d

Cir. 2022). We conclude that these docket entries demonstrate that the District Court

appropriately “balanced the relevant interests.” Id.

In his reply brief, King contends that he was coerced into waiving his rights under

the Speedy Trial Act during the March 15, 2022, pretrial conference. Notwithstanding

this unsupported assertion, it is clear from the docket that the District Court properly

weighed the relevant interests in light of King’s decision to proceed pro se, which

resulted in the scuttling of certain trial stipulations. In our view, the District Court

appropriately extended the trial date to allow for effective trial preparation. See United

States v. Brooks, 697 F.2d 517, 520 (3d Cir. 1982) (acknowledging that trial courts are

permitted to grant an ends-of-justice continuance sua sponte). Accordingly, we reject

King’s claim that his rights under the Speedy Trial Act were violated.

B. Sixth Amendment Claim8

8 We exercise de novo review of a district court’s legal determination of whether a defendant was deprived of his Sixth Amendment right to a speedy trial and review any 9 Barker v. Wingo instructs that a Sixth Amendment speedy trial claim requires

applying a “balancing test” that weighs the conduct of both parties, considering

particularly the “[l]ength of delay, the reason for the delay, the defendant’s assertion of

his right, and prejudice to the defendant.” 407 U.S. 514, 530 (1972). Although the nearly

fourteen-month delay between the April 27, 2021, indictment and the July 5, 2022, trial is

long enough to trigger inquiry by applying the Barker factors, Hakeem v. Beyer, 990 F.2d

750, 760 (3d Cir. 1993), we note that approximately seven months of the delay originated

with a request from King’s initial defense counsel for additional time beginning on June

10, 2021. As we declared in Wells v. Petsock, such delay should “not be considered for

purposes of determining whether the defendant’s right to a speedy trial has been

infringed.” 941 F.2d 253, 258 (3d Cir. 1991). Nor should we consider the four-month

delay occasioned by the continuance granted after the District Court found King

competent to represent himself on March 15, 2022. At that time, King withdrew his

counsel’s agreement to certain trial stipulations and agreed to a continuance to permit the

Government to obtain the necessary witnesses and to prepare for trial. Moreover, during

this latter delay between March and the commencement of trial in July, King filed

numerous pro se motions, necessitating responses and judicial resolution. Given that

these delays were granted to accommodate the defendant’s need to prepare for trial, the

overall time between indictment and trial does not weigh in favor of King’s claim.

underlying factual findings for clear error. United States v. Battis, 589 F.3d 673, 677 (3d Cir. 2009). The Government correctly points out that King raised his constitutional speedy trial claim for the first time on appeal, so we review for plain error. United States v. Shaw, 891 F.3d 441, 454 (3d Cir. 2018). 10 The second factor requires us to examine the reasons for the delay. The initial

delay was to ensure that defense counsel could effectively prepare for trial. The reasons

for the final delay before trial were twofold: (1) to ensure that King, then proceeding pro

se, had the opportunity “to present his case in his own way,” McKaskle, 465 U.S. at 177;

and (2) to allow the Government to respond to the withdrawal of the stipulations and to

obtain the necessary witnesses to authenticate certain documents. In short, the delay was

not a deliberate effort to “hamper the defense.” Barker, 407 U.S. at 531. These reasons

do not weigh in King’s favor under Barker’s balancing test.

Inasmuch as King did not raise a claim in the District Court that his constitutional

right to a speedy trial had been violated, Barker’s third factor does not help him either.

Barker’s “fourth factor is prejudice to the defendant.” 407 U.S. at 532. King submits

that he was prejudiced because the delay hindered his defense. He submits that the

prejudice he sustained “mainly stems from the government’s dilatory conduct, bad faith[]

continuances, and intentional delay in bringing [him] to trial.” Appellant’s Inf. Am. Br.

27. His argument is far from compelling. In fact, the District Court’s reset of the game

clock enabled King to seek further discovery and to file motions that his former counsel

had not pursued. Because King had “a fair chance to present his case in his own way,”

McKaskle, 465 U.S. at 177, we reject King’s assertion that he was prejudiced. In sum,

we conclude that King’s Sixth Amendment right to a speedy trial was not infringed.

11 IV. Interstate Agreement on Detainers Act Claim9

The Interstate Agreement on Detainers Act (IADA) was “designed ‘to encourage

the expeditious and orderly disposition of . . . charges [outstanding against a prisoner]

and determination of the proper status of any and all detainers based on untried

indictments, informations, or complaints.’” United States v. Mauro, 436 U.S. 340, 343

(1978) (quoting IADA, Art. I). To that end, it contains (as does the Speedy Trial Act)

time limitations in which the prisoner must be brought to trial. IADA, Arts. III(a), IV.

The Act “applies only to individuals serving a term of imprisonment.” United

States v. Fulford, 825 F.2d 3, 11 (3d Cir. 1987). Here, King was initially housed in the

Clarion County Jail pursuant to state charges. Department of Homeland Security Agent

Fina Spory provided the jail with a copy of the federal arrest warrant for King. That

warrant served as a detainer because it “put the officials of the institution in which [King

was] incarcerated on notice” that he was wanted in another jurisdiction. Mauro, 436 U.S.

at 358. Thereafter, King was sentenced on state charges on June 9, 2021. The following

day, pursuant to a federal writ of habeas corpus ad prosequendum, King was transferred

to federal court for his initial appearance on the federal indictment. Because King was

then serving a state sentence, Article IV of the IADA was triggered. See Mauro, 436

U.S. at 362. Under Article IV, trial on the outstanding charges “shall be commenced

9 Because the interpretation and application of the IADA present legal issues, our review is plenary. Cooney v. Fulcomer, 886 F.2d 41, 43 (3d Cir. 1989). We review factual findings for clear error. United States v. Dent, 149 F.3d 180, 183 (3d Cir. 1998). 12 within one hundred and twenty10 days of the arrival of the prisoner in the receiving State,

but for good cause shown . . . the court . . . may grant any necessary or reasonable

continuance.”11 IADA, Art. IV(c) (footnote added).

According to King, the 120-day IADA clock ran because the continuances were

“insufficient.” Appellant’s Am. Inf. Br. 16. We have already concluded that the

continuances were factually supported and necessary to allow for effective trial

preparation under the Speedy Trial Act. See supra § III.A. We likewise conclude that

the continuances granted by the District Court were “necessary” and “reasonable” as

required by Article IV of the IADA. See United States v. Peterson, 945 F.3d 144, 154

(4th Cir. 2019) (“[E]very circuit court to reach the issue has agreed that periods

excludable under the [Speedy Trial Act] for ‘ends of justice’ continuances should also

toll the 120-day clock under the IADA’s substantially similar ‘good cause’ continuance

provision.”). We therefore reject King’s assertion that his rights under the IADA were

violated.

10 King refers to the 180-day IADA clock in his informal amended brief. The 180-day clock applies under Article III when the prisoner triggers the Act by delivering written notice of the place of his imprisonment and his request for a final disposition of the charges. Article III is thus not applicable here. Agent Spory’s service upon the institution of the detainer was made before King had been sentenced on his Pennsylvania charges. See Fulford, 825 F.3d at 11. 11 Under the IADA, the term “State” includes “the United States of America.” IADA, Art. II(a); Mauro, 436 U.S. at 354 (concluding that the “United States is a party to the Agreement as both a sending and a receiving State”). 13 V. Claim of Outrageous Conduct in Violation of the Due Process Clause

King asserts that the Government violated his due process rights by “commencing

and engaging in an unlawful investigation and withholding . . . information.” Appellant’s

Am. Inf. Br. 4. He contends there was no reason for Agent Spory to investigate him and

that she was a sham witness. He further submits that the Government created a false

theory to explain why it commenced the investigation. Various documents, he claims,

were fraudulent, including the grand jury transcripts, search warrants, and arrest warrant.

King acknowledges that these arguments were not raised prior to trial.

Rule 12(b)(3) requires this defense to be raised by pretrial motion “unless the

evidence supporting the claim . . . is not known to the defendant prior to trial.” United

States v. Pitt, 193 F.3d 751, 760 (3d Cir. 1999), abrogated on other grounds by

Honeycutt v. United States, 581 U.S. 443 (2017). The record establishes that although

King questioned the authenticity of various documents and the credentials of government

officials before trial, he did not assert a due process claim of outrageous conduct.

Because he was aware of evidence allegedly relevant to his claim of outrageous conduct

but did not raise the issue before trial, we cannot consider his “untimely” arguments

unless King shows “good cause” for us to do so. Fed. R. Crim. P. 12(c)(3). King fails to

do so.

VI. Claims of Constructive Amendment & Variance12

12 Our review of a properly preserved claim of constructive amendment or variance is plenary. United States v. Vosburgh, 602 F.3d 512, 531 (3d Cir. 2010). Because King did not raise this in the District Court, we review for plain error. Id.; Fed. R. Crim. P. 52(b). 14 King asserts in his Issues Thirteen and Sixteen that the jury instructions

constructively amended counts one, two, and three of the indictment. Issue Seventeen

suggests that there was a “possible variance” with the production of child pornography

counts. Appellant’s Am. Inf. Br. 49.

“An indictment is constructively amended when evidence, arguments, or the

district court’s jury instructions effectively ‘amend the indictment by broadening the

possible bases for conviction from that which appeared in the indictment.’” United States

v. McKee, 506 F.3d 225, 229 (3d Cir. 2007) (quoting United States v. Lee, 359 F.3d 194,

208 (3d Cir. 2004) (alteration omitted)). When the jury is instructed on a ground that is

“not fully contained in the indictment,” the error is plain as it violates the Grand Jury

Clause of the Fifth Amendment. United States v. Syme, 276 F.3d 131, 151 (3d Cir.

2002). In deciding if a defendant’s substantial rights were prejudiced in the plain error

context, the government must overcome a “rebuttable presumption” of prejudice Id. at

154. “Unless the government can show with certainty that the jury did not convict” King

based on the amendment, “we must find plain error and reverse.” McKee, 506 F.3d at

231.

A. Constructive Amendment Claim and Count One

King asserts three bases on which a constructive amendment occurred: (1) the

indictment did not include the “reasonable opportunity to observe” language from

§ 1591(c) as the instruction did; (2) the “vague offense dates” of “July 2017 through

November 2020” broadened the bases for finding him guilty; and (3) the instructions

15 inserted the word “attempted” in the first element of the sex trafficking charge.

Appellant’s Am. Inf. Br. 42.

The indictment charged King with both sex trafficking and attempted sex trafficking,

as it cited 18 U.S.C. §§ 1591(a) and 1594. Accordingly, the inclusion of the word

“attempted” did not constructively amend the indictment. See United States v. Davis, 711

F. Appx 254, 257 (6th Cir. 2017) (rejecting defendant’s constructive amendment claim as

the indictment specifically cited the statutory subsection despite not including the

statutory text). Similarly, the indictment contained the date range of which King

complains, and therefore does not constitute a constructive amendment.

The inclusion of the “reasonable opportunity to observe” instruction from

§ 1591(c), however, was neither included nor referenced in the indictment. Inclusion of

that language was a constructive amendment as to count one and constituted plain error

that was presumptively prejudicial under Syme. 276 F.3d at 152-55; see also United

States v. Lockhart, 844 F.3d 501, 515 (5th Cir. 2016). The question before us, then, is

whether the Government has effectively rebutted the presumption of prejudice. Syme,

276 F.3d at 154-55.

The indictment required the jury to decide if the victim was a minor. The

evidence shows that King personally knew the victim was a minor. When the minor

testified, she told the jury that when she first met King in 2017, she was fourteen years

old. When she was asked whether King knew her age, she answered that he did

“[b]ecause I told him.” SA1210. After having sex on their initial encounter, King gave

the victim money. He continued to pay her each time they had sex, and sent her money 16 on other occasions. The victim testified that on two occasions King used Western Union

to send her money, but that she was unable to directly receive the funds because she was

not yet eighteen years of age. King knew that she was under eighteen, the victim

explained, because he arranged to send the Western Union communications to adults who

were able to access the money and then turn it over to her.

Testimony from Chelsea Bauman confirmed King’s use of Western Union to

funnel money to the victim. Bauman described how King sent her money via Western

Union that was intended for the victim. But Bauman refused to turn the funds over when

she realized that she knew the victim personally because she had played together with

Bauman’s children. Bauman testified she could not “think of a reason for a grown man

to be giving a child that kind of money.” SA1289.

Added to this damning testimony from both the victim and from Bauman is the

testimony of a police officer, who was investigating the possible use by the victim and

another girl of a stolen credit card. The officer telephoned King and asked if the credit

card had been stolen. King responded that “he knew the[] kids” and had given his

permission as a way of “trying to help them out.” SA1278. We conclude that the

foregoing evidence, together with Agent Spory’s testimony and the email

communications, effectively rebutted any presumption that inclusion of the “reasonable

opportunity to observe” language was prejudicial. In other words, the Government has

shown “with certainty” that King knew the victim’s age and that the jury did not convict

King simply on the basis that he had a reasonable opportunity to observe she was

underage. McKee, 506 F.3d at 232. And because the constructive amendment created by 17 including the “reasonable opportunity to observe” language in the instruction did not

affect King’s substantial rights, we decline to vacate King’s conviction on count one.

B. Constructive Amendment as to Counts Two and Three

King asserts in Issue 16 that there was also a constructive amendment of counts

two and three, both of which charged him with the production of child pornography in

violation of § 2251(a). He points out that the jury instructions included that he

“attempted” to commit these offenses and that the instructions allowed the jury to find the

interstate commerce element by including that the videos were “actually” transported in

interstate commerce. Appellant’s Am. Inf. Br. 48-49.

The jury instructions advised that the Government could prove the interstate

commerce element by showing that the “visual depiction has actually been transported.”

SA1551. Although this language does not appear in the indictment, it can hardly

constitute a constructive amendment because those words are part of the text of

§ 2251(a), the very statute King was charged with violating.

As to King’s contention that there was a constructive amendment of the

production counts by the inclusion in the jury instructions of the words “attempted” and

“attempting,” SA1550, we agree that this broadens the charges in the indictment. The

error is obvious. See Syme, 276 F.3d at 152-55. We conclude, however, that the

Government effectively rebutted the presumption of prejudice. The case was not

presented on a theory of attempted production. The instructions for the production counts

did not explain the term “attempt.” And the minor victim’s testimony established that the

videos were actually made, not attempted, and that King sent those videos to the victim 18 via Snapchat. The evidence presented and the instructions given remove any risk that the

jury convicted King of an offense with which he was not charged. Accordingly, we

conclude that the constructive amendment on the production counts did not affect King’s

substantial rights so as to warrant relief.

C. A Variance on Counts Two and Three

“A variance occurs ‘where the charging terms of the indictment are not changed

but when the evidence at the trial proves facts materially different from those alleged in

the indictment.’” Vosburgh, 602 F.3d at 532 (quoting United States v. Daraio, 445 F.3d

253, 259 (3d Cir. 2006)). King alleges that there was a variance because the evidence did

not show that the videos were on his cellphone but rather that they were on the victim’s

cellphone.

We reject King’s claim that there was a variance. Counts two and three of the

indictment did not allege that the videos were on King’s phone. Rather, these counts

alleged that King orchestrated the minor’s engagement in sexually explicit conduct for

the purpose of producing visual depictions. As a result, proof regarding the device on

which the unlawfully produced videos were found did not create a variance from the facts

alleged in the indictment.

VII. Sufficiency Challenges13

13 A Rule 29 motion for a judgment of acquittal based on the sufficiency of the evidence is subject to plenary review. United States v. Starnes, 583 F.3d 196, 206 (3d Cir. 2009). We “review[] the sufficiency of the evidence in the light most favorable to the government and must credit all available inferences in favor of the government.” United States v. Riddick, 156 F.3d 505, 509 (3d Cir. 1998). We must sustain the verdict if a rational juror “could find the essential elements of the crime beyond a reasonable doubt.” 19 A. Count One – 18 U.S.C. § 1591(a), (b)(2), and 1594(a)

Section 1591(a) makes the sex trafficking of children a crime. To obtain a

conviction, the Government must prove beyond a reasonable doubt:

(1) that the defendant knowingly recruited, enticed, harbored, transported, obtained or maintained [the victim]; (2) that the recruiting, enticing, harboring, transporting, providing, obtaining or maintaining of [the victim] was in or affecting interstate or foreign commerce, and (3) that the defendant committed such act knowing or in reckless disregard of the fact . . . that [the victim] was under the age of 18 years of age and would be caused to engage in a commercial sex act.

United States v. Pringler, 765 F.3d 445, 449 (5th Cir. 2014). Subsection (b)(2) specifies

the applicable punishment if the child victim was older than fourteen years of age but had

not yet attained age eighteen. And § 1594(a) directs that whoever “attempts to violate”

§ 1591 “shall be punishable in the same manner as a completed violation of that section.”

King raises a sufficiency issue as to each element of § 1591(a). And he contends

that the Government failed to prove he attempted to sex traffic the minor victim. We

conclude that the evidence is sufficient to support the jury’s sex trafficking verdict.

We highlight the testimony of David Coleman, a forensics special agent with the

Department of Homeland Security. He testified that the Snapchat and Facebook accounts

between the victim and King’s username were extracted from the victim’s cellphone,

thereby preserving the data that existed at the time of extraction. He also confirmed that

the communications over Snapchat and Facebook required a connection to the internet to

Starnes, 583 F.3d at 206. Because King did not raise his specific sufficiency arguments regarding the § 2251(a) offenses in the District Court, we also review the sufficiency of counts two and three for plain error. Fed. R. Crim. P. 52(b). 20 “receive and send messages.” SA 1110. And he testified that the two videos that King

made of the victim engaging in sexually explicit conduct, Exhibits 13 and 14, had been

obtained from the victim’s Snapchat communications on her cellphone, and that the latest

date on which these videos could have been produced was April 27, 2019. The victim

was, as of that date, only sixteen years old.

The testimony of the victim also provided evidence satisfying the elements of a

§ 1591 offense. The victim testified that she made contact with King via Facetime in

July 2017, when she was fourteen years old, and that in subsequent Facebook messages,

King “offered [her] money to hang out.” SAppx1213. She also testified that she later

met King at a location near her home and that she personally informed King at the time

they first met that she was fourteen years old. They engaged in sexual relations in the

back of King’s semi-truck during that first encounter. King paid her “a few hundred”

dollars after that, and continued to pay her money after she “would go with him” to his

truck for sex. SA1214-15. Those sexual encounters occurred, she testified, “[l]ike ten”

times over a three-year period. SA1214. The victim related how King provided her with

other items of value during that time, including her cellphone and payment of her

cellphone bills. She also testified that King made two videos of them engaged in sexually

explicit conduct. She explained that she learned about the videos because King sent them

to her cellphone via Snapchat. Although King’s face could not be seen in the videos, the

victim identified him as the person with whom she was sexually engaged.

21 King asserts that the evidence fails to prove that he enticed the victim.14 Yet the

victim’s testimony, together with the admission of the communications between King and

the victim on Snapchat, amply prove that King manipulated her by providing both

financial remuneration and gifts such as her cellphone, clothes, and shoes. In doing so,

he was able to maintain his sexual access to her. This was sufficient for the jury to find

enticement.

B. Counts Two and Three – 18 U.S.C. § 2251(a)

King also challenges the sufficiency of the evidence to support his convictions on

counts two and three for violating 18 U.S.C. § 2251(a).15 That statute, in relevant part,

makes it unlawful for “[a]ny person [to] employ[], use[], persuade[], induce[], entice[], or

coerce[] any minor to engage in . . . any sexually explicit conduct for the purpose of

producing any visual depiction of such conduct.” 18 U.S.C. § 2251(a); United States v.

Heinrich, 57 F.4th 154, 159 (3d Cir. 2023). This requires the Government to prove both

an actus reus and a mens rea. Heinrich, 57 F.4th at 159. In Heinrich, we declared that

the mens rea the prosecution must prove is that “defendant must engineer the sexually

explicit conduct ‘for the purpose of producing any visual depiction of such conduct.’” Id.

at 161 (quoting § 2251(a)). King contends that the Government failed to satisfy the “‘for

14 Although King’s Rule 29 motion at trial took issue with whether the Government satisfied the interstate commerce element, he now concedes that this element was satisfied by Agent Coleman’s testimony. 15 King denies that he is the male who appears in the sexually explicit videos. The victim testified to the contrary. The jury permissibly credited the victim’s testimony that King was the other participant in the videos. 22 the purpose’ element” because the decision to record was “spontaneous” and

“unplanned.” Appellant’s Am. Inf. Br. 50. He suggests he was “not directing a video.”

Id.

We are not persuaded. The videos show that the victim was not directly facing the

camera in either instance. And the victim testified that she learned of the videos when

King sent them to her by Snapchat. These circumstances support a reasonable inference

by the jury that the videos were created surreptitiously so they could be preserved without

the victim’s knowledge.16 See United States v. Torres, 894 F.3d 305, 312-13 (D.C. Cir.

2018). And Agent Spory noted that, in one video, King instructed the victim how to

perform oral sex. This, too, supports an inference that King was producing the video. Id.

at 311; United States v. Fortier, 956 F.3d 563, 567-68 (8th Cir. 2020) (noting that

defendant’s instruction on positioning during video could possibly suggest an attempt to

obtain a “better camera angle”). While King asserts that the video was simply a

“spontaneous” act, Exhibit 14’s focus suggests a deliberate effort to create a visual

depiction of a specific portion of the sexually explicit conduct in which King and the

victim were engaged. Indeed, to make the two videos with his cellphone, it was

necessary for King to keep the cellphone within his reach. He then had to open the

cellphone, select the camera application for videorecording, and record the sexual acts.

Rather than spontaneity, these details suggest that King arranged the circumstances of the

sexual encounters so that he could memorialize them without the victim’s knowledge.

16 In fact, King admits that the victim did not know he “was going to” record the sexually explicit conduct. Appellant’s Am. Inf. Br. at 51-52. 23 See United States v. Gatlin, 90 F.4th 1050, 1062 (11th Cir. 2024). We conclude that the

evidence, viewed in the light most favorable to the Government, was sufficient for the

jury to find that King engineered the sexually explicit conduct so that he could record the

visual depictions.

And we reject King’s contention that, because the dates of the videos are

unknown, the Government failed to prove that he enticed the victim before the production

of the videos. He relies on United States v. Broxmeyer, where the defendant’s § 2251(a)

conviction was set aside for a lack of proof that the photos that had been taken by the

victim were the result of the defendant’s persuasion, inducement, or enticement. 616

F.3d 120, 125 (2d Cir. 2010). Broxmeyer instructed that the timing is “critical” because

“the statute punishes the cause when it brings about the effect.” Id. There, the victim

took the photographs and there was “no evidence [the defendant] induced her to take

them.” Id. at 126. Here, however, the evidence provided a basis for the jury to infer that

King enticed the victim to engage in sexually explicit conduct before taking the videos.

In short, we conclude that there is sufficient evidence to support King’s

convictions under § 1591 and § 2251(a).

VIII. Claim that the Government Misstated an Element of Count One

King asserts in Issue Fourteen that the Government misstated an element of count

one, unfairly affecting his trial. Our review is for plain error. Fed. R. Crim. P. 52(b).

In King’s view, both statements by the Government in its opening and by Agent

Spory during her testimony misstated the law by suggesting that “a commercial sex act

alone was sufficient to prove count one.” Appellant’s Am. Inf. Br. 43. There is simply 24 no merit to this claim. The District Court’s instructions properly addressed what

constituted a “[c]ommercial sex act” as defined in § 1591(e)(3).

IX. Miscellaneous Claims

Two of the nineteen issues that King presented for review assert that the

Government or the trial court violated Federal Rule of Criminal Procedure 16 and a

pretrial order deadline. Issue Six generally asserts a due process violation based on an

alleged deprivation of a fair trial resulting from the Government’s having procured three

fictitious certificates of authenticity. Five of the nineteen issues claim that certain

procedural or evidentiary rules were violated by the admission of certain evidence into

the record. See Issues Eight, Nine, Ten, Eleven and Twelve. We conclude that none of

these issues have merit.

A. Alleged Violation of Rule 16

Issue Three asserts that the Government violated Federal Rule of Criminal

Procedure 16 by failing to produce the Cellebrite Report regarding the extraction of data

from the victim’s cellphone.17 King acknowledges that he received a metadata report

during discovery, but contends it was error for the Government not to provide the

“forensic image” produced in the Cellebrite Report. The Government explained that no

Cellebrite extraction was ever conducted, and King produces nothing to refute that

assertion. The Government did provide King with the Magnet AXIOM extraction report

17 According to the legal argument of the parties presented in court, Cellebrite is a program utilized in a forensic review to extract data from a cellphone. 25 that Agent Coleman discussed in his testimony. King’s suggestion of a Rule 16 violation

is frivolous.

B. Due Process Claim Based on Fictitious Certificates of Authenticity

In Issue Six, King asserts a due process violation based on the Government’s

allegedly “procuring [three] fictitious certificate[s] of authenticity,” which were attached

as exhibits to a motion in limine and a supplement to that motion. Appellant’s Am. Inf.

Br. 28 (citing cm/ecf nos. 150, 162). “The Due Process Clause of the Fifth Amendment

guarantees the right to a fair trial.” United States v. Welshans, 892 F.3d 566, 574 (3d Cir.

2018). First, we must consider if there was misconduct on the part of the government.

Id. If there was, we must then determine if that misconduct resulted in an unfair trial. Id.

This claim was not raised in the District Court, so we review for plain error. Fed. R.

Crim. P. 52(b).

King contends that the certificates presented to the District Court were fictitious

because he had been provided, during discovery, with a blank certificate of authenticity

from Snap Inc. After asking for a completed form, King submits that the Government

produced three completed certificates, which he contends must have been created by the

Government. Each of the certificates that King complains of specifically references a

search warrant or a subpoena, and each is signed by personnel from Snap Inc. or

Facebook. King offers nothing more than an initial blank certificate and the subsequent

production of three completed certificates. His claim of government misconduct in the

production of these certificates is, again, frivolous.

C. Alleged Violation by Issuance of an Amended Pretrial Order 26 In Issue Seven, King contends that the District Court violated King’s right to a fair

trial when it issued an amended final pretrial order even though the deadline for certain

pretrial submissions had expired. Whether an amended pretrial order is appropriate is a

matter committed to the sound discretion of the trial court. See United States v. Rankin,

779 F.2d 956, 960 (3d Cir. 1986).

Here, the day after the pretrial deadline expired, the Government moved for a

competency hearing and to stay pretrial deadlines. Given the nature of the pending

motions, we conclude there was no abuse of discretion by the District Judge. The Judge

acted judiciously in establishing new deadlines and in attempting to keep the trial on

track.

D. Alleged Violation of Federal Rule of Evidence 404(b)

Issue Eight in King’s amended informal brief contends that Federal Rule of

Evidence 404(b) was violated twice during trial. First, he contends the District Court

erred in allowing Sergeant Robert Murphy of the Butler Township Police Department to

testify about an incident at Walmart during which King admitted giving a credit card to

the victim and another minor. The second claim of a 404(b) violation occurred during the

testimony of King’s friend, Chelsea Bauman, who lived in Butler. As noted above, King

had asked her to funnel cash from a Western Union communication to the victim.

According to King, the violation of Rule 404(b) occurred when Bauman testified that she

refused and that King then told her that it was normal for adult men to be attracted to

younger women. King also contends that testimony from both Sergeant Murphy and

27 Bauman to the effect that the victim’s mother had an addiction was violative of Rule

404(b).

We review for plain error, and King fails once more to meet its requirements. Fed.

R. Crim. P. 52(b). The testimony concerning the minor’s mother is plainly not 404(b)

matter. It is not evidence of the defendant’s other acts. The testimony from Sergeant

Murphy regarding the Walmart incident is intrinsic evidence relating to the § 1591(a)

count; it pertains to whether King enticed the victim with financial remuneration. See

United States v. Green, 617 F.3d 233, 248 (3d Cir. 2010). Even if Bauman’s testimony

concerning a statement by King about men being attracted to younger women was 404(b)

evidence (and our hesitation in concluding that it was should, by itself, suggest that any

error was not plain), it did not affect his substantial rights.

E. Alleged Violation of Federal Rule of Criminal Procedure 41

King asserts in Issue Nine that the Government violated Rule 41 when it

introduced evidence obtained from search warrants issued to Facebook and Snapchat for

his communications. He asserts that the warrants had not been returned to the magistrate

in violation of the procedure set out in Rule 41 and that the evidence should have been

excluded. Suppression arguments, however, must be raised before trial. Fed. R. Crim P.

12(b)(3)(C). So we cannot consider these “untimely” arguments because King fails to

show “good cause.” Fed. R. Crim. P. 12(c)(3).

F. Alleged Violations of Federal Rules of Evidence 702 and 1002-1006

Issues Ten and Eleven challenge the expert testimony of Agent Coleman, who

worked in computer forensics with the Department of Homeland Security. Agent 28 Coleman testified about the Snapchat and Facebook applications, their dependence on the

internet, his examination of the minor victim’s cellphone and the extraction of the data

that existed on the victim’s phone when she surrendered it to law enforcement. King

contends that Agent Coleman’s testimony violated the best evidence rule in Rules 1002-

1006 and also submits that the District Court improperly allowed the admission of flawed

forensic testimony from Agent Coleman in violation of Rule 702. Again, we review

these issues for plain error. Fed. R. Crim. P. 52(b).

Rule 702 requires consideration of the expert testimony’s “qualification, reliability

and fit.” Schneider ex rel. Est. of Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003). A

review of Agent Coleman’s testimony shows that it met each of these requirements.

And we disagree with King’s assertion that Agent Coleman’s testimony violated

the best evidence rule. Indeed, this argument is nearly inscrutable. Coleman’s testimony

about the extraction of the Snapchat and Facebook accounts explained that the AXIOM

program that was used “recreate[d] the data in a presentable” and “easy-to-read format.”

SA1114-15. He also explained how he identified the videos in the Snapchat folder and

what he could discern from the data. Contrary to King’s assertion, this testimony

concerning how the extraction was conducted and what it produced did not relate to

substantive contents of the “original” Snapchat and Facebook accounts. We can discern

no error, let alone one that is plain.

G. Alleged Error in Authenticating Exhibits 13 & 14

In his Issue Twelve, King asserts that the trial court abused its discretion by

admitting Exhibits 13 and 14, the two videos of King and the victim engaged in sexually 29 explicit conduct. He asserted at trial that the exhibits were “improperly obtained and not

properly authenticated.” SA1379. He reiterates that argument here. And he asserts that

the Government created the videos and that they should be inadmissible.

First, we agree with the District Court that the videos were sufficiently

authenticated by the testimony of Agent Coleman and the victim. The victim confirmed

that King sent the videos to her Snapchat account and that she and King were the

individuals engaged in sexually explicit conduct. This evidence satisfied Rule 901’s

requirement that “the proponent must produce evidence sufficient to support a finding

that the item is what the proponent claims it is.” Fed. R. Evid. 901(a), (b)(1). Nor do we

see error in Agent Spory’s testimony identifying King’s voice in Exhibit 13. The victim

had already identified King as the other person in the video.

X. Sentencing Objections

King also challenges several calculations in his presentencing report.18 He

objected both before and during sentencing to a five-level enhancement under U.S.

Sentencing Guideline (U.S.S.G.) § 4B1.5(b), which applies to repeat and dangerous sex

offenders. It increases a defendant’s offense level by five points if the offense is a

covered sex crime and the “defendant engaged in a pattern of activity involving

prohibited sexual conduct.” U.S.S.G. § 4B1.5(b). The District Court determined that a

pattern had been established by a preponderance of the evidence, citing both the fact that

18 Our review of the District Court's interpretation of the Guidelines is plenary, and we review any underlying factual findings for clear error. United States v. Smith, 751 F.3d 107, 118 (3d Cir. 2014). 30 King engaged in sexual activity as depicted in the two videos and the victim’s testimony

that King had “paid her for sex approximately ten additional times.” SA1656.

King does not take issue with the sentencing court’s reliance upon the victim’s

testimony. He objects only to considering the two videos as having occurred on separate

occasions so as to establish a pattern. Importantly, the District Court found the victim

testified credibly and that a pattern had been established by the victim’s testimony that

she had sex with King on ten occasions. We conclude that the victim’s testimony

afforded a sufficient basis for the District Court to conclude that the pattern component

required for the § 4B1.5(b) enhancement was met.

King also raises for the first time in his opening brief the remaining sentencing

issues. Accordingly, we also review those issues for plain error. Fed. R. Crim. P. 52(b).

King contends that there was error in calculating the offense level on count one,

the § 1591(a) offense. The U.S.S.G. manual instructs that guideline § 2G1.3 applies in

computing the offense level for the count one conviction. Subsection (c)(1), however,

directs the application of another guideline if the offense of conviction—the § 1591(a)

violation—involved the sexual exploitation of a minor. U.S.S.G. § 2G1.3(c)(1). King

objects to the application of the other guideline because it increased the offense level by

adding points because the victim was fourteen years old at the time the offense was

committed and because a sexual act was involved. In King’s view, these additional

points should not have been added because “count one does not involve sexually

exploiting a minor by production of sexually explicit visual material.” Appellant’s Am.

Inf. Br. 52. We see no error. Guideline § 1B1.3 allows consideration of relevant conduct 31 in computing a defendant’s total offense level. For that reason, the conduct underlying

the convictions on counts two and three were permissibly considered as relevant conduct

for count one and warranted application of the other guideline.

King also objects to the calculation of the offense level for counts two and three.

He asserts that the application of the two-point enhancement under § 2G2.1(b)(1)(B) for

minors that had not “attained the age of sixteen years” was error. In his view, the

enhancement should not have been applied because the Government did not prove how

old the victim was in each video.

We conclude that the enhancement under § 2G2.1(b)(1)(B) did not constitute plain

error. The victim was fourteen when she had sex with King for the first time. He paid

her “a few hundred” dollars afterwards and continued to pay her after each of the nine

other sexual encounters. SA1214. According to Agent Coleman, the latest the videos

could have been produced was April 27, 2019, which was two months after the victim

turned sixteen. As a result, there is a preponderance of evidence to establish that some of

the persuading and enticing of the minor to engage in sexually explicit conduct for the

purpose of producing visual depictions occurred before the victim turned sixteen.

Because there is no authority specifying that it must be the visual depictions that precede

the victim turning sixteen, we conclude that the District Court did not commit plain error

in applying the two-level enhancement under § 2G1.3(b).

Finally, King objects to the District Court’s failure to apply a three-point decrease

under § 2X1.1(b)(1) to the computation of his offense level for count one. This

downward adjustment applies to attempt offenses. The decrease applies “unless the 32 defendant completed all the acts . . . necessary for successful completion of the

substantive offense.” U.S.S.G. § 2X1.1(b)(1). Given the evidence of record, it is far

from clear that this downward adjustment was applicable. For that reason, we conclude

the failure to apply § 2X1.1(b)(1) did not constitute plain error.

XI. Conclusion

For the reasons set out above, we will affirm the judgment of the District Court.