United States v. Roderick King – CourtListener.com

                                                                   NOT PRECEDENTIAL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 USC §§ 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 USC§ 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 USC§ 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 USC

§ 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.” 

Proof of identity.

 (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.” 

Proof of identity.

 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.’” 

Proof of identity.

 (quoting McKaskle v. Wiggins, 

465 VS 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 USC§ 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 VS

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 US 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 VS 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 US 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 USC§ 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.4e 137

, 146 (3d
Cir. 2022). We conclude that these docket entries demonstrate that the District Court
appropriately “balanced the relevant interests.” 

Proof of identity.

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 VS 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 US 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 US 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 VS 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 VS

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

US 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 US 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 VS 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 USC §§ 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 USC§ 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 USC§ 2251

(a)
King also challenges the sufficiency of the evidence to support his convictions on
counts two and three for violating 

18 USC§ 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 USC§ 2251

(a); United States v.
Heinrich, 

57 F.4e 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. 

Proof of identity.

on 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.4e 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.” 

Proof of identity.

 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.

Proof of identity.

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

Proof of identity.

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.
33