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FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
No. 24-14147
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GRAY EDWARD RIVERA,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:24-cr-00018-WWB-SJH-1
Before NEWSOM and LUCK, Circuit Judges, and LEIBOWITZ∗, District
Judge.
LEIBOWITZ, District Judge:
∗ Honorable David S. Leibowitz, United States District Judge for the Southern
District of Florida, sitting by designation.
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2 Opinion of the Court 24-14147
Appellant Gray Edward Rivera hid three “spy cameras” in a
bedroom belonging to his girlfriend’s minor daughter. Rivera used
the cameras to surreptitiously record the daughter as she dressed
and undressed. The grand jury charged Rivera by superseding
indictment with two counts of producing sexually explicit conduct
of a minor and one count of attempted production of sexually
explicit conduct of a minor, in violation of 18 U.S.C. §§ 2251(a) and
(e). After trial, a petit jury found Rivera guilty on all three counts,
and the district court then sentenced him principally to 262
months’ imprisonment.
Rivera raises three issues on appeal, but the district court’s
handling of them at trial was entirely correct under our precedents.
We therefore affirm Rivera’s convictions.
I. FACTS AND PROCEDURAL HISTORY
Rivera first met the child victim (“CV”) when she was nine
or ten years old, when Rivera was dating CV’s mother. CV and her
mother later moved from Puerto Rico to Florida to live with Rivera.
Although CV initially viewed Rivera as a father figure, their
relationship soured after Rivera assaulted CV’s mother. Despite
CV’s reluctance to interact with him, Rivera attempted to
communicate with CV about her personal life, particularly her
intimate relationships with boys. Rivera also attempted to “bribe”
CV with material goods, encouraged her to speak with him about
her sex life, offered “advice” about what to do with boys, and
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advised her that if she were to lose her virginity, she should do so
“in the house.”
When she was 14 or 15 years old, Rivera purchased and gave
CV three items as “gifts”: a Bluetooth speaker, a USB device
charger, and an alarm clock that doubled as a digital picture frame.
Unbeknownst to CV or her mother, however, each of these items
contained hidden video-recording devices and at least one could
record sound.
Rivera set up the Bluetooth speaker, USB charger, and
digital picture frame on a vanity in CV’s bedroom. The vanity
faced a nightstand in which CV kept her underwear and bras. CV
used the Bluetooth speaker in the bathroom when she showered
and carried it back to her bedroom when she got dressed. After
Rivera had arranged these devices, Rivera called CV while she was
in her bedroom with a boy and instructed her to “put on some sexy
clothes.”
Rivera and CV’s mother broke up around December 2023.
Soon after the breakup, CV’s mother discovered what she believed
to be hidden cameras inside the Bluetooth speaker and certain
other household items. She contacted the police.
Boxes for the Bluetooth speaker and digital picture frame
were found in a small office area that Rivera had used in CV’s
home. One box contained a user manual for a Bluetooth speaker
containing a hidden camera. The office area also contained a
packing slip for the digital picture frame, which was addressed to
Rivera at CV’s home. In addition to the three items in CV’s
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bedroom, detectives discovered a hidden video-recording device in
a smoke detector near the office.
Upon Rivera’s return to Puerto Rico from an international
trip, investigators from the Department of Homeland Security
conducted a border search of Rivera and seized two cellular
telephones (an iPhone and a Galaxy Z Fold phone). AT&T records
showed that Rivera was the iPhone’s subscriber and that the
number associated with the Galaxy phone was connected to
Rivera’s employer. The name associated with the iPhone was
“Gray Rivera,” and the phones were linked to email addresses
bearing the names “gray.rivera,” “mantarivera21,” and
“grayrivera21.” On each phone, investigators discovered emails
delivered to those addresses confirming Rivera’s purchase of the
recording devices, as well as evidence that those email accounts
were used to register for applications designed to control recording
devices remotely and an application used to encrypt and conceal
media. The iPhone also contained credit cards, usernames, and
financial accounts in Rivera’s name, as well as voice recordings in
which the speaker self-identified as “Gray Rivera of Excalibur
Solutions.”
The Galaxy phone contained three categories of sexually
explicit image files. The first file contained 11 still frames from a
video showing CV in the process of changing clothes. In the first
frame, CV appeared to be fully nude and was partially visible,
bending over, exposing her bare buttocks. In frames two through
four, she was visible from her knees to the middle of her head, as
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she put on a garment. In the fifth frame, the garment covered her
torso, but her bare belly, groin, and thighs were visible. The sixth
frame was the same, except her bare breasts were also showing.
CV was not in view in the last four frames. Forensic investigation
revealed that this file had last been accessed on October 24, 2023.
The second file contained a 34-second video initially
depicting CV in the nude, visible from the side, with her breasts
exposed. CV then stepped mostly out of frame as she put on her
underwear. The camera view then pivoted to the left and then to
the right, putting CV back in frame of view as she put on a pair of
pants. The video ended while CV was still shirtless. Forensic
investigation showed this video was created on October 25, 2023,
and deleted on November 3, 2023.
The third file contained 13 still frames from a video
depicting CV changing clothes. In the first few frames, CV had a
towel wrapped around her body, but by the fifth frame she was
completely nude, with the camera focused on her groin area. In
the sixth frame, her bare breasts and pubic area were visible. In the
seventh frame, CV finished putting on her underwear, but her
breasts remained visible. Forensic investigation showed this file
was last accessed on November 19, 2023.
Three months before trial was set to begin, the government
filed a notice of intent to introduce similar-act evidence under
Rules 404(b) and 414 of the Federal Rules of Evidence 1 (“the
1 Under Rule 414(a), a court may “admit evidence that the defendant committed any other child molestation” in a “criminal case in which a defendant is USCA11 Case: 24-14147 Document: 45-1 Date Filed: 07/22/2026 Page: 6 of 27
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404/414 Notice”). The government noticed its intent to offer
evidence—gathered from an interview with “Adult Victim 1”
(referred to herein as G.V.O.)—that Rivera had “intentionally
touched [G.V.O.] when she was a minor child in a lewd or
lascivious manner.” The 404/414 Notice described three incidents,
including one in which Rivera “asked [G.V.O.] about engaging in
sex with her boyfriend” and another in which Rivera showed
G.V.O. “a picture of a woman in lingerie” while telling her that she
would “[o]ne day . . . have [her] mom’s body.”
The third incident summarized in the 404/414 Notice (the
only incident relevant on appeal) described a 2011 encounter in
which Rivera approached G.V.O.—Rivera’s stepdaughter, who
was 13-years old at the time of the incident. While G.V.O. was in
her bedroom Rivera entered wearing only a pair of boxer briefs;
Rivera then removed his erect penis from the boxers, grabbed
G.V.O. by the neck, and struck her in the face with his penis.
G.V.O. protested loudly, after which Rivera clothed his penis and
left the room.2
accused of child molestation.” “Child molestation” is defined by the Rule to
include offenses under 18 U.S.C. § 2251, the statute under which Rivera was
charged. Fed. R. Evid. 414(d). If admitted, the jury may consider “[t]he evidence . . . on any matter to which it is relevant.” Id. To offer such evidence
under Rule 414, the government must “disclose it to the defendant, including
witnesses’ statements or a summary of the expected testimony.” Id.
2 The 404/414 Notice describes the event as follows:“In January of 2011, the
defendant went into the bedroom of Adult Victim 1, a child at the time, while
her mother was in the shower. The defendant was wearing only a pair of grey
boxers and approached Adult Victim 1’s bed where she was laying, grabbed
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As set forth in the 404/414 Notice, the United States
intended to offer this similar-act evidence to show Rivera’s
propensity to commit the charged offenses and to show Rivera’s
“prurient sexual interest in children, motive, intent, plan, and lack
of mistake or accident.” The District Court admitted the evidence
over Rivera’s objection, finding that the defendant had “not
offer[ed] any evidence or argument to dispute [the] reliability” of
G.V.O.’s testimony.
Prior to G.V.O.’s testimony at trial, the District Court
instructed the jury that it was “about to hear evidence of acts
allegedly done by [Rivera] on other occasions that may be similar
to acts with which [Rivera] [was] currently charged” and that it
could consider the evidence “for its bearing on any matter to which
it [was] relevant.” The court also stated that Rivera was on trial
only for the offenses charged in the superseding indictment and
that the similar-act evidence alone was insufficient to prove Rivera
guilty of the charged offenses.
G.V.O. (27 years old at the time of Rivera’s trial), testified in
Spanish assisted by an interpreter. During her testimony, G.V.O.
stated that Rivera had asked intrusive questions about her sex life
and had urged her to trust him with secrets about that topic.
G.V.O. then recounted many of the facts set forth above
her neck, and told her to look at his penis. Adult Victim 1 said that the defendant took his erect penis out of his boxers and hit her in the face with it. Adult
Victim 1 said she protested loudly and cursed at him, and the defendant put
his penis away and left her room.”
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concerning the 2011 incident in her bedroom. For the first time
(and beyond the description of the incident set forth in the 404/414
Notice), however, G.V.O. testified that Rivera had not only
grabbed her head but also had “obligated [her] to . . . perform oral
sex on him.”
Defense counsel immediately objected under Rules 403 and
404 of the Federal Rules of Evidence, arguing that G.V.O.’s
testimony fell outside the 404/414 Notice. At a sidebar, counsel for
the government assured the court that she was unaware of this
allegation and had not intended to introduce testimony beyond
what the government had set forth in the 404/414 Notice. 3
Defense counsel requested a mistrial, arguing that G.V.O.’s
testimony was a “bell that [could not] be unrung,” and that the
evidence was unfairly prejudicial under Rule 403. The government
responded that the testimony was “within the contours” of the
404/414 Notice, which sufficiently apprised Rivera of the “general
nature” of the testimony. Noting that the testimony was “not all
3 Indeed, the government initially suggested that counsel for Defendant had
misconstrued G.V.O.’s testimony. See Trial Tr. 2-35:21–24 (“I don’t [think]
she’s going to say that she actually performed [sic]. I think she’s saying he
wanted it, so I think that she will clarify that she . . . .”). Counsel for the government then examined G.V.O. in an attempt to understand the nature of her
testimony, after which government counsel represented to the court that “this
[was] the first time [government counsel was] hearing of this as well. It is
something—the first time it came out [was] today.” See id. 2-36:14–37:16.
Counsel for Rivera then confirmed that he had no further questions concerning the “disclosure” of this new testimony. Id. 2-37:24–25.
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that different” from the events described in the 404/414 Notice, the
court took the request for a mistrial under advisement.
After excusing the jury, G.V.O. explained to the court that
she had performed oral sex on Rivera but that the encounter had
not progressed further. Counsel for the government asked G.V.O.
if she had not felt “comfortable sharing” the incident with the case
agent, to which G.V.O. responded that she had “been silent about
what took place for 14 years,” because the matter was “very
difficult for [her] to speak on.” Defense counsel then crossexamined G.V.O. outside the jury’s presence, during which G.V.O.
testified that she had informed a case agent that Rivera had placed
his penis in her mouth but not that he had obligated her to perform
oral sex.
Latching onto perceived inconsistencies in G.V.O.’s
testimony, defense counsel protested that G.V.O. “ha[d] testified
several times under oath now as to inconsistent statements as to
who she told, what she told,” and that her “ever evolving”
narrative rendered her entire testimony unreliable and therefore
inadmissible. At the conclusion of the cross-examination, defense
counsel moved to strike all of G.V.O.’s testimony as inconsistent
and unreliable.
The court struck only the final line of G.V.O.’s testimony—
that Rivera had “obligated” her to perform sex—and, after much
back and forth between the court and defense counsel, offered the
following curative instruction, as requested by defense counsel:
“The last statement made by the witness, the Court is going to
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strike, and so you’re instructed to disregard it.” Defense counsel
declined to cross-examine the witness before the jury. The district
court ultimately denied the motion for mistrial.
In issuing its final jury instructions concerning the evidence
admitted under Rules 404(b) and 414, the district court twice
reiterated that evidence of similar acts alone was insufficient to
prove Rivera guilty of the charged offenses and that he was not on
trial for conduct or offenses not charged in the superseding
indictment.
At the close of the government’s case, Appellant moved for
judgment of acquittal, arguing that the evidence, even when
viewed in the light most favorable to the government, failed to
prove beyond a reasonable doubt that Rivera had produced images
featuring a child “engag[ed] in sexually explicit conduct,” as
required to sustain a conviction under 18 U.S.C. § 2256(8). The
district court denied the motion.
The jury returned a guilty verdict on all counts, and the
district court sentenced Rivera to 262 months’ imprisonment.
Rivera timely appealed.
II. STANDARD OF REVIEW
This Court reviews de novo the sufficiency of evidence
underlying a conviction, viewing the evidence in the light most
favorable to the government and drawing all reasonable inferences
and credibility choices in its favor. See United States v. Broughton,
689 F.3d 1260, 1276 (11th Cir. 2012). We will not overturn a jury’s
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verdict “if any reasonable construction of the evidence would have
allowed the jury to find the defendant guilty beyond a reasonable
doubt.” United States v. Rodriguez, 732 F.3d 1299, 1303 (11th Cir.
2013).
A district court’s evidentiary rulings and the denial of a
motion for a mistrial based on improper testimony are reviewed
for abuse of discretion. United States v. Kapordelis, 569 F.3d 1291,
1313 (11th Cir. 2009); United States v. Fey, 89 F.4th 903, 910 (11th
Cir. 2023). This discretion exists because the trial judge “is in the
best position to evaluate the prejudicial effect of improper
testimony.” United States v. Perez, 30 F.3d 1407, 1410 (11th Cir.
1994).
III. DISCUSSION
Appellant presents three issues on appeal: (1) whether
G.V.O.’s testimony was so prejudicial as to warrant a mistrial; (2)
whether the district court should have stricken G.V.O.’s testimony
in its entirety; and (3) whether the evidence was sufficient for a
reasonable jury to find that Rivera had produced images depicting
“sexually explicit conduct” under 18 U.S.C. § 2256(8). We consider
each issue in turn.
A. G.V.O.’s Testimony Did Not
Substantially Prejudice the Trial Outcome
We have noted that “[a] trial judge has discretion to grant a
mistrial since he is in the best position to evaluate the prejudicial
effect of a statement or evidence on the jury.” United States v.
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Delgado, 321 F.3d 1338, 1346–47 (11th Cir. 2003) (internal
quotations and citation omitted). In employing that discretion, the
trial judge should grant a motion for mistrial if improperly
introduced testimony prejudicially affects a defendant’s substantial
rights. See United States v. Newsome, 475 F.3d 1221, 1227 (11th Cir.
2007). Said another way, the district court should grant a mistrial
“when a reasonable probability arises that, but for the [testimony],
the outcome [of the trial] would be different.” United States v.
Wilson, 149 F.3d 1298, 1301 (11th Cir. 1998) (citation omitted). This
determination is made considering the context of the entire trial
and any curative instructions given by the trial judge. See id.
(citations omitted). When the district court does provide curative
instructions, “the reviewing court will reverse only if the evidence
is so highly prejudicial as to be incurable by the trial court’s
admonition.” Delgado, 321 F.3d at 1347 (internal quotations and
citations omitted). Furthermore, any error will be deemed
harmless when the record contains sufficient independent evidence
of guilt. See United States v. Adams, 74 F.3d 1093, 1097–98 (11th Cir.
1996).
G.V.O.’s testimony did not prejudicially affect Appellant’s
substantial rights. Taking into account the context of the entire
trial, including the district court’s curative instructions, Rivera has
failed to show a reasonable probability that the outcome of his trial
would have been different without the additional testimony that
went beyond the 404/414 Notice. See Newsome, 475 F.3d at 1227;
Wilson, 149 F.3d at 1301. That’s true for several reasons.
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First, the government’s independent evidence of Rivera’s
guilt was very strong. As we have held, “[i]mproper and prejudicial
testimony is less likely to mandate a mistrial when there is other
significant evidence of guilt which reduces the likelihood that the
otherwise improper testimony had a substantial impact upon the
verdict of the jury.” See Perez, 30 F.3d at 1411 (cleaned up). Here,
the government introduced ample evidence that Rivera ordered
the spy cameras, installed them in CV’s room, used them to record
CV as she undressed, curated and stored the most prurient of the
images he collected on his personal devices, and used applications
designed to conceal the media from prying eyes. CV and G.V.O.
also testified at length about Rivera’s improper inquiries
concerning their sex lives, reinforcing that Rivera produced these
images to satisfy his prurient interests. Save for G.V.O.’s
testimony, Rivera does not challenge any of that evidence on
appeal.
Second, the district court offered three instructions aimed at
insulating Rivera from any undue prejudice that might have arisen
from G.V.O.’s additional similar-acts testimony that arguably went
beyond the 404/414 Notice. Before G.V.O. testified at all, the
district court offered the standard instruction that similar-acts
evidence alone was insufficient to prove Rivera guilty of the
charged offenses and that Rivera was not on trial for any offense
not charged in the superseding indictment. Next, upon defense
counsel’s request, the trial judge specifically instructed the jury to
disregard the last line of G.V.O.’s testimony. Finally, at the end of
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the trial, the district court reiterated the standard similar-acts
instruction.
We presume that juries follow instructions. See United States
v. Calderon, 127 F.3d 1314, 1334 (11th Cir. 1997). Accordingly, in
Wilson, we found that the defendant had failed to show “substantial
prejudice” warranting a mistrial where the “record reveal[ed] that
the district court made an effort to cure any prejudice that may
have resulted from the prosecutor’s remarks,” including by
“sustain[ing] an objection by Defendant and issu[ing] immediately
a curative instruction to the jury to disregard the improper
remark.” 149 F.3d at 1302. This case is no different. A district court
does not abuse its discretion when it determines that “several
instructions [given] to the jury throughout the trial” effectively
mitigated the prejudice arising from improper testimony. Id.
(citing United States v. Bailey, 123 F.3d 1381, 1402 (11th Cir. 1997)).
That is certainly true here.
Third, any prejudice arising from G.V.O.’s stricken
testimony was minimal and too incremental to warrant a mistrial.
To start, the improper testimony was “spontaneous and singular.”
See United States v. Funt, 896 F.2d 1288, 1295 n.5 (11th Cir. 1990)
(citing United States v. Ruz-Salazar, 764 F.2d 1433 (11th Cir. 1985));
United States v. Benz, 740 F.2d 903, 916 (11th Cir. 1984)). In a long
line of questioning, Rivera objected to just one of G.V.O.’s
responses, and the district court found the testimony otherwise
consistent with the assertions set forth in the 404/414 Notice. We
have consistently maintained that “spontaneous and singular”
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remarks do not warrant a mistrial, particularly when coupled with
curative instructions. See Funt, 896 F.2d at 1295 n.5; Benz, 740 F.2d
at 916.
And as the district court noted, it would be difficult to
determine whether G.V.O.’s stricken testimony concerned
conduct that was “necessarily any better or worse” than what the
jury had already heard and what was clearly within the ambit of
the 404/414 Notice. We have held that “there was no compelling
prejudice where ‘a reasonable jury undoubtedly would have found
both the evidence of [the defendant’s] child molestation and the
evidence of [his] child pornography very inflammatory.’” United
States v. Blake, 868 F.3d 960, 969 (11th Cir. 2017) (quoting United
States v. Hersh, 297 F.3d 1233, 1243 (11th Cir. 2002)). The same
holds here.
Recall that G.V.O. testified to the following facts: that when
she was 13, Rivera entered her bedroom wearing only a pair of
boxers; that he approached her, pulled his erect penis out of his
boxers, and instructed her to “[l]ook at it”; that she felt “paralyzed”;
and that Rivera grabbed the back of her head. And as to both
G.V.O. and CV, the jury heard evidence of Rivera’s lewd and
inappropriate inquiries concerning the minors’ sex lives—not to
mention, of course, the ample evidence that Rivera had
surreptitiously produced pornographic images of CV.
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The (ultimately stricken) testimony that Rivera obligated
G.V.O. to perform oral sex5 was incremental to the flood of
inflammatory and uncontested evidence properly introduced at
trial concerning Rivera’s conduct towards minors. Even without
the district court’s curative instruction, we cannot say that
G.V.O.’s single line of stricken testimony was so prejudicial as to
warrant a mistrial given the similar evidence properly admitted in
the case.
Finally, Rivera has never maintained that the government
had any foreknowledge of the scope of G.V.O.’s testimony and
failed to disclose it. In the 404/414 Notice itself, the government
properly relied on its interview with G.V.O. to “summarize” the
5 Rivera appears to assume that the jury took this to mean that Rivera in fact
raped or attempted to rape G.V.O. Contrary to that assumption, however,
the colloquy between the government, defense counsel, and the district court
reveals significant uncertainty as to the implication and impact of G.V.O.’s
testimony. For example, after excusing the jury, counsel for the government
presumed that G.V.O. was not “going to say that she actually performed [oral
sex] [but rather] . . . she’s saying he wanted it . . . .” The district court, for its
part during this discussion, believed that G.V.O. had not “sa[id] anything
about oral sex in front of the jury,” but had instead testified that Rivera had
“asked her to perform oral sex.”
As we have held, a district court is entitled to discretion because it “is in the
best position to evaluate the prejudicial effect of improper testimony.’” Perez,
30 F.3d at 1410. Here, the district court was in the best position to determine
what, if any, prejudicial effect the improper testimony may have had upon the
jury, and its determination that the testimony was at best ambiguous and at
worst no more inflammatory than what the jury had already heard was not an
abuse of discretion.
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encounter between Rivera and G.V.O., which the district court
reviewed and approved after considering Rivera’s opposition. At
trial, counsel for Rivera declined to examine G.V.O. concerning
her new disclosure (finding the government’s own examination
adequate), and at oral argument did not dispute the accuracy of the
government’s representation that it lacked prior knowledge of the
testimony. Accordingly, Rivera has never argued—and there is no
evidence to suggest—that the government improperly withheld or
otherwise failed to disclose the full scope of G.V.O.’s testimony.
For the foregoing reasons, Rivera has not demonstrated a
reasonable probability that the outcome of the trial would have
been different but for the introduction of G.V.O.’s stricken
testimony. The district court did not abuse its discretion in denying
Rivera’s motion for mistrial.
B. The District Court Properly Declined
to Strike G.V.O.’s Testimony in Its Entirety
Rivera next argues that the district court should have
stricken G.V.O.’s testimony in its entirety because it was unreliable
and lacked corroboration. To the extent Rivera preserved this
argument and has properly presented it here on appeal, we find it
unconvincing. To start, evidence introduced under Rules 404(b)
and 414 need not be corroborated at all. Rather, “[t]o have Rule
404(b) prior act evidence admitted, the proponent need only
provide enough evidence for the trial court to be able to conclude
that the jury could find, by a preponderance of the evidence, that
the prior act had been proved.” United States v. Green, 873 F.3d 846,
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864 (11th Cir. 2017). The government can do so “by calling
witnesses to testify.” Id. The district court determined in advance
of trial that the government had carried its burden and that the
similar-acts evidence could properly be introduced. Rivera has not
preserved a challenge to that initial ruling.
Nor has Rivera shown that G.V.O. perjured herself at trial
or that G.V.O. otherwise rendered her testimony so unreliable as
to warrant striking it in its entirety. Perjury requires a witness’s
“willful intent to provide false testimony and not as a result of a
mistake, confusion, or faulty memory.” United States v. McNair, 605
F.3d 1152, 1208 (11th Cir. 2010) (cleaned up). Far from a willful
intent to provide false testimony, the record reflects a witness
struggling through a language barrier to recount traumatic, 14-year-old events before an open, public courtroom during a jury
trial. The fine distinctions between hitting G.V.O. in the face with
Rivera’s penis, placing Rivera’s penis in her mouth, and
“obligating” her to perform oral sex might well have been lost on
G.V.O. Rivera has produced no evidence that inconsistencies in
G.V.O.’s testimony were the result of her “willful intent to provide
false testimony,” rather than “mistake, confusion, or faulty
memory.” Id.
In any event, G.V.O.’s testimony is not inconsistent. She
suggested at trial that she had disclosed the incident
contemporaneously to her mother but testified that she had been
“silent” as to the full scope of the incident in the intervening years,
including in her conversations with the government, given the
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sensitive nature of the subject matter. Moreover, G.V.O.’s
testimony at trial that Rivera may have forced or attempted to
force her to perform oral sex merely builds on those existing and
uncontested allegations—it does not contradict them.
Finally, the single line of challenged testimony was stricken,
and G.V.O.’s testimony was otherwise entirely consistent with the
facts set forth in the 404/414 Notice. Had G.V.O.’s statement that
Rivera obligated her to perform oral sex been included in the
404/414 Notice, there can be little doubt that the evidence would
have been deemed reliable and introduced at trial along with the
rest of her recounting of the incident. Indeed, defense counsel all
but conceded as much at trial when he suggested that “oral sex
[could] . . . , of course, still be considered as far as similar fact
evidence,” but for the failure to satisfy the notice requirement.
C. Sufficient Evidence
Supported Rivera’s Convictions
Finally, Rivera argues that the material introduced at trial
depicted “mere nudity,” rather than the “sexually explicit conduct”
required to sustain Rivera’s convictions under 18 U.S.C. § 2251(a)
and (e). Rivera’s three convictions—two for the sexual exploitation
of a minor and one for the attempted sexual exploitation of a
minor—were supported by images depicting CV in the process of
dressing and undressing. Rivera argues on appeal that this
evidence was insufficient for a jury to find him guilty, as “[t]he
images . . . were simply . . . of [a] girl changing clothes[.] [T]here
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was nothing sexual about the images whatsoever.” Appellant’s Br.
at 33.
Federal law defines “child pornography” as “any visual
depiction, including any photograph, film, video, picture, or
computer or computer generated image or picture” where “the
production of such visual depiction involves the use of a minor
engaging in sexually explicit conduct.” 18 U.S.C. § 2256(8). A
defendant commits the crime of production of child pornography
when he “uses, persuades, induces, entices, or coerces” a minor to
engage in “sexually explicit conduct for the purpose of producing
any visual depiction of such conduct,” using materials that have
traveled in interstate commerce. Id. § 2251(a). The relevant statute
defines “sexually explicit conduct” as:
i. sexual intercourse, including genital-genital, oralgenital, anal-genital, or oral-anal, whether between
persons of the same or opposite sex;
ii. bestiality;
iii. masturbation;
iv. sadistic or masochistic abuse; or
v. lascivious exhibition of the anus, genitals, or pubic
area of any person.
Id. § 2256(2)(A). Rivera’s convictions implicate the last of these
categories: “lascivious exhibition of the anus, genitals, or pubic
area.”
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Our case law has defined “lascivious exhibition” as a display
that “potentially excites sexual desires or is salacious.” United States
v. Grzybowicz, 747 F.3d 1296, 1306 (11th Cir. 2014) (cleaned up).
We have explained that sexually explicit material “needn’t always
be ‘dirty’ . . . to qualify” as “lascivious exhibition of the genitals or
pubic area.” United States v. Williams, 444 F.3d 1286, 1299 (11th Cir.
2006), rev’d on other grounds, 553 U.S. 285 (2008).
More recently, we held in United States v. Holmes that
“depictions of otherwise innocent conduct by a minor [could]
constitute ‘a lascivious exhibition of the genitals or pubic area’
based on the actions of the individual creating the depiction.” 814
F.3d 1246, 1247 (11th Cir. 2016). Holmes effectively decides this
issue.
Like this case, Holmes involved a defendant charged with
“surreptitiously videotaping his teenage stepdaughter . . . and
being in possession of videos and depictions of her in the nude.” Id.
Similar to Rivera, “Holmes hid video cameras in [his
stepdaughter’s] bathroom in order to capture her daily routine
without her knowledge,” and “videoed [her] as she sang, danced,
stood in front of the mirror, applied creams or lotions to her body,
groomed, and performed other bathroom routines.” Id. at 1249.
Holmes captured and stored videos and images of his stepdaughter
in the nude or fully or partially clothed, at times revealing her nude
breasts and at other times her pubic area. See id. at 1249–50.
In affirming the denial of Holmes’s motion for judgment of
acquittal, we rejected the precise argument Rivera advances here,
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holding instead that a court may look “to the intent of the producer
or editor of an image” to determine whether it “constitutes a
lascivious exhibition,” even if the image depicts an “innocent child
acting innocently.” Id. at 1252. In other words, we held that the
exhibition must be lascivious—not the child. Joining the Eighth,
Ninth, and Tenth Circuits, 7 the Holmes panel focused on the intent
of the producer or editor of the image to determine whether the
“lascivious exhibition” category of “sexually explicit conduct” had
been proved. See id. at 1251–52. “[T]o find otherwise would ignore
the obvious exploitive nature of the depiction and require the child
to exhibit lust, wantonness, sexual coyness or other inappropriate
precocity. Such an interpretation would pervert both the language
and the logic of the legislation and the case law.” Id. at 1252
(quoting Wolf, 890 F.2d at 246).
So, the use of “freeze-framing” that “focus[es] the viewer’s
attention on the pubic area,” might suggest the producer’s
lascivious intent. Id. (quoting Horn, 187 F.3d at 790). Similarly, the
manner in which a “zoom feature [is] adjusted” or the arrangement
of a photograph may be sufficient for a jury to find that the
producer depicted the child as a “sexual object” intended to “arouse
or satisfy the sexual cravings . . . of himself or like-minded
7 See United States v. Horn, 187 F.3d 781, 790 (8th Cir. 1999); United States v.
Wiegand, 812 F.2d 1239, 1244 (9th Cir. 1987); United States v. Wolf, 890 F.2d
241, 246 (10th Cir. 1989); but see United States v. Hillie, 39 F.4th 674, 686 (D.C.
Cir. 2022) (holding, after Holmes, that “lascivious exhibition of the genitals”
requires the “display[] [of the] anus, genitalia, or pubic area in a lustful manner
that connotes the commission of a sexual act”).
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24-14147 Opinion of the Court 23
pedophiles.” Id. (first quoting United States v. Johnson, 639 F.3d 433,
440–41 (8th Cir. 2011); and then quoting Wiegand, 812 F.2d at
1244).
Applying this test to the facts in Holmes, we held that a
reasonable jury could have concluded that the defendant produced
a lascivious exhibition of the genitals or pubic area of a minor based
on the “placement of the cameras in the bathroom where his
stepdaughter was most likely to be videoed while nude, his
extensive focus on videoing and capturing images of her pubic area,
the angle of the camera set up, and his editing of the videos at
issue.” Id.
All of those considerations apply here and decide this issue
in the government’s favor. Rivera arranged the hidden cameras in
CV’s bedroom (one place where a minor can be expected to
undress frequently) and provided CV with a Bluetooth speaker that
CV used while showering in her bathroom. Rivera also arranged
the cameras to focus on CV’s dresser, which contained her
underwear and bras, making it likely that the cameras would
capture CV nude. Finally, Rivera extensively curated the
recordings, retaining just a handful of still frames and a few dozen
seconds of video footage depicting CV’s exposed breasts, buttocks,
and pubic area.
Rivera’s attempts to distinguish Holmes are unavailing. He
first argues that his case is distinguishable because “[t]he cameras
at issue here were in the bedroom, not the bathroom.” That
argument ignores that Rivera provided CV with a Bluetooth
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speaker that she used while showering. Even setting that fact to
the side, Rivera’s distinction splits hairs—a minor might as well be
expected to be found in a state of undress in her bedroom as in her
bathroom. It also ignores the fact that Rivera appeared to
anticipate that more explicit conduct would take place in the
bedroom. Indeed, Rivera facilitated that outcome by encouraging
CV to have sex in the home and by calling CV while she was in her
bedroom with a boy to prompt her to “put on some sexy clothes.”
Next, Rivera argues that the cameras here “were simply
aimed out into the room from the vanity,” and “were not
specifically angled to capture the pubic region.” That’s not
factually correct. As already discussed, Rivera’s hidden cameras
were not “simply aimed out into the room,” but angled towards
CV’s nightstand, which contained her undergarments, increasing
the likelihood that the cameras would capture CV in a state of
undress. And the fact remains that Rivera’s cameras did capture
CV’s pubic region, and Rivera retained those images as still frames.
The fact that Rivera secreted this material away is further proof
that these exhibitions were lascivious and intended to “arouse or
satisfy the sexual cravings . . . of himself or like-minded
pedophiles.” Holmes, 814 F.3d at 1252 (citation modified).
Finally, Rivera argues that the “depictions captured by the
cameras were not edited in a way to make them sexually explicit.”
That’s also wrong as a factual matter. Rivera edited footage to
retain just a handful of explicit still-frames and a few seconds of
footage of CV’s breasts, buttocks, and pubic region. Moreover,
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unlike Holmes, the trial evidence here permitted a reasonable jury
to conclude that Rivera manipulated the angle of the cameras remotely,
as shown by the pivoting viewing angle on the video recordings
themselves as well as the applications found on Rivera’s phones,
which could be used to remotely monitor and control the cameras.
Perhaps anticipating the outcome dictated by Holmes, Rivera
encourages this Court to adopt the six-factor test for lasciviousness
set forth in United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986).
In the past, we have declined to consider this “multi-factor
analysis” and have found it “unnecessary [to] . . . [d]ecid[e] whether
the Dost factors should be part of the law of our circuit.” United
States v. Grzybowicz, 747 F.3d 1296, 1306 & n.8 (11th Cir. 2014).
Because Holmes plainly controls this issue and dictates a clear
outcome, we again find it unnecessary to adopt the Dost factors
here.
In a similar vein, Rivera urges us to reconsider our precedent
in light of United States v. Hillie, 39 F.4th 674 (D.C. Cir. 2022).
Relying on United States v. Williams, 553 U.S. 285 (2008), 8 the D.C.
Circuit held in Hillie that videos depicting a minor merely engaged
in “ordinary grooming activities” could not fall within the
8 The Supreme Court suggested in Williams that the phrase “sexually explicit
conduct . . . connote[d] actual depiction of the sex act rather than merely the
suggestion that it is occurring.” United States v. Williams, 553 U.S. 285, 297
(2008) (internal quotations omitted and emphasis modified). As the dissenting
opinion in Hillie explained, that language is distinct from the phrase that is immediately at issue here: “lascivious exhibition of the genitals or pubic area of
any person.” 39 F.4th at 700 n.19 (Henderson, J., dissenting).
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definition of “lascivious exhibition of the genitals,” because the
“conduct depicted . . . must consist of [the] display[] [of the] anus,
genitalia, or pubic area in a lustful manner that connotes the
commission of a sexual act.” Hillie, 39 F.4th at 685–86 (cleaned up).
Under the prior-panel precedent rule, however, we must follow
our prior published decisions, notwithstanding any alleged
inconsistencies with Supreme Court precedent. See Smith v. GTE
Corp., 236 F.3d 1292, 1303 (11th Cir. 2001) (“[W]e categorically
reject any exception to the prior panel precedent rule based upon
a perceived defect in the prior panel’s reasoning or analysis as it
relates to the law in existence at the time.”); see also United States v.
Fritts, 841 F.3d 937, 942 (11th Cir. 2016) (“[T]here is never an
exception carved out for overlooked or misinterpreted Supreme
Court precedent.”). So, the prior-panel-precedent rule prohibits us
from departing from Holmes. See Scott v. United States, 890 F.3d
1239, 1257 (11th Cir. 2018) (“The prior-panel-precedent rule
requires subsequent panels of the court to follow the precedent of
the first panel to address the relevant issue, ‘unless or until the first
panel’s holding is overruled by the Court sitting en banc or by the
Supreme Court.’”) (quoting Smith, 236 F.3d at 1300 n.8).
IV. CONCLUSION
Rivera has failed to show that G.V.O.’s stricken testimony
substantially prejudiced the outcome of his trial. He has also failed
to show that the district court abused its discretion by refusing to
strike the entirety of G.V.O.’s testimony. Finally, Rivera failed to
show that evidence submitted to the jury was insufficient to
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convict under 18 U.S.C. §§ 2251(a) and (e). Thus, the district court
correctly denied Appellant’s motion for mistrial and motion for
judgment of acquittal. We AFFIRM Rivera’s convictions.