Plain Error Claims Rejected in Child Porn Case

U.S. v. Kearn, 863 F.3d 1299 (7/21/17) (Kan.) (Published) - The 10th affirms a child porn conviction, rejecting a number of plain error arguments. The 10th holds the jury need not decide unanimously which image forms the basis for a child porn conviction. Each image is a means, not an element, of the crime. For support the 10th notes the child porn statutes, §§ 2251(b), 2252(a)(2) & 2252(a)(4)(b) refer to "any visual depiction." Judge Tymkovich analogizes to the game of Clue. Although in Clue it matters in what room and with what weapon the culprit killed the victim, in the real life child porn analogy, the jurors can disagree in which room and with what weapon the murder was committed, so long as they agree there was a murder, or rather, the jury only needs to decide an image was child porn. It doesn't matter which image. The 10th also holds: testimony that images were child porn was helpful to the jury because whether the images depicted "sexually explicit conduct" was a fact in issue and the officers' views explained why they took certain steps; officers' testimony in that regard was not expert testimony requiring a Rule 16 notice even though the government established they were trained to recognize child porn; a detective's reference to Mr. Kearn as a contact sex offender was at worst minimally prejudicial because the government's whole theory of the case was that Mr. Kearn was a contact sex offender; the admission of testimony regarding an unadmitted report did not satisfy the third prejudice prong of the plain error reversal standard because most of the report's points came out in properly admitted testimony and there was lots of evidence of Mr. Kearn's guilt; because Mr. Kearn was on trial for knowingly distributing and possessing child porn, sexually explicit images on his phone and search terms indicating his mental state did not come into trial under 404(b), rather they were intrinsic to the charged offense.