BERNICE BOUIE DONALD, Circuit Judge.
A jury convicted James O. Napier of twelve counts of production, transportation, distribution, and receipt of child pornography. The charges against Napier stemmed from his sexual molestation of an 11-month-old baby and a 9-year-old girl, which he filmed and then traded on the Internet with others who share child pornography. Napier now appeals, asserting four distinct arguments: (1) the district court erred in denying his motion to dismiss the indictment, which was based on alleged prosecutorial misconduct; (2) the district court erred in denying his motion for judgment of acquittal, because the government failed to prove an interstate commerce connection for all twelve counts of conviction; (3) the district court erred in admitting at trial—over Napier's objections—various electronic devices as exhibits that included markings indicating the devices were manufactured outside of the United States and a document obtained
James O. Napier ("Napier") met Laura Schiele ("Schiele") when she was 19 years old. Napier was over thirty at that time and, according to Schiele, went by the nicknames "J-Kid" and "Kid." Napier and Schiele began dating and soon moved in together. In November 2008, the couple moved into an apartment on Sunset Avenue in Cincinnati, Ohio.
Napier and Schiele each had their own computers. Schiele used an Acer computer while Napier used a computer tower that he got from his job. Schiele was aware that Napier used his computer to, among other things, look at "regular" pornography. Schiele also was aware that Napier had a foot fetish.
On November 9, 2009, Schiele's sister, Jennifer, called and asked Schiele to babysit her 11-month-old daughter ("Victim 1"). Schiele was unable to look after her niece, so she told Jennifer to call Napier to ask him to babysit until Schiele got off from work. Alone with his girlfriend's niece that morning, Napier raped the child and recorded the abuse in photographs and a video.
Napier traded this video with other child pornographers via email. For instance, using the moniker "Kid James" and the email address jonapier1992@gmail.com, Napier referred to this video as his "anal baby rape video." When one of these trading partners informed Napier that he had already received this video from another child pornographer called "Cyanide," Napier responded: "[T]hat's funny! I made this video myself and traded it with [C]yanide. [S]he's not two years old she's only one years old, but she was only 6 months when I filmed her. [I] don't know why [C]yanide listed her at 2 years old[.]" Another of Napier's trading partners wanted more pictures and videos of Victim 1 and also wanted to rape her himself. Over the course of several emails, Napier responded that he had made the video himself; had taken the photographs himself; and had traded the video "with a few people." Napier also repeatedly expressed that he was having difficulty making a new video because he "can't get [Victim 1] alone long enough to take new pics or make another movie yet."
One of the people with whom Napier sought to trade child pornography turned out to be FBI Special Agent Deidre Gotjen ("Agent Gotjen"), who was located in Phoenix, Arizona. Agent Gotjen is currently assigned to the Public Corruption Squad, where she works on cases involving violent crimes against children and human trafficking. As part of the Innocent Images National Initiative, Agent Gotjen worked to "combat the sexual exploitation of children on the [I]nternet." In the summer of 2010, Agent Gotjen received a tip that the website "EuroDisc" was advertising the sale of child pornography. She explored the website and verified that it offered child pornography, either for free or for sale. EuroDisc also included a link called "Guestbook," which "allowed. . . individuals who were on the site to communicate with one another." Guestbook "recorded the date, name, time, and oftentimes the e-mail address of the individual posting so that they could be contacted offline." In one Guestbook post in July 2010, a person posted the following
Using an assumed email address, Agent Gotjen emailed jonapier1992@gmail.com to say she was "serious" about trading. "Kid James" emailed in response, "[Y]es! [L]et's TRADE! [W]hat do you like?" After some back and forth, Agent Gotjen received an email from "Kid James" with a video file attached. The video, entitled "47.wmv," was a compilation of movies depicting the sexual abuse of minors. Agent Gotjen sent back a corrupted video file; when "Kid James" realized he could not open the file, his communications with Agent Gotjen ended.
Agent Gotjen sought to determine jonapier1992@gmail.com's identity, first by subpoenaing Google (from whom she learned that jonapier1992's IP address was being accessed through Cincinnati Bell) and then by subpoenaing Cincinnati Bell (which led to a dead end). She then searched Google for the email address and variations thereof. This query led her to profiles on the websitesFootFetish-Tube.com, AdultSpace.com, MySpace.com, Facebook.com, and Reunion.com. From these profiles, Agent Gotjen learned that jonapier1992 was most likely a 36-year-old man living in Cincinnati named James O. Napier. Agent Gotjen ultimately obtained Napier's license photo from the Ohio Bureau of Motor Vehicles, which matched photos from the websites she had searched on the Internet. Agent Gotjen then packaged up her work and sent it to the FBI's Cincinnati office.
Meanwhile, Napier continued living with Schiele while trading online with other child pornographers. For instance, in February 2011, he sent a number of videos with sexually explicit titles—including one entitled "6 months old.wmv"-to someone with the email address "mynothing13@yahoo.uk." In return, Napier asked, "Do you have any younger girls? (Very young?) (The younger the better!)."
Napier and Schiele broke up around March 2012. When he moved out of their apartment on Sunset Avenue, he took his computer tower with him and Schiele kept her Acer computer. Napier promptly moved into the home of Candace Allen ("Allen"), the mother of his 6-year-old son. Also living in the home were Allen's two other children by a different father, a 7-year-old boy and an 8-year-old girl ("Victim 2").
Shortly after Victim 2's ninth birthday, Napier began sexually abusing her and recording it. The details are horrific. Victim 2 identified herself as 9 years old in several of the videos. On November 23, 2012, Napier emailed a fellow child pornographer who had earlier expressed interest in trading full-length videos. Napier responded, "Sure[,] we can begin trading immediately[.] I just [sic] me a chubby 9yo[,] we've been having lots of fun[.]"
By this time, agents at the FBI's Cincinnati office had determined—after subpoenaing Time Warner Cable—that the person emailing with Agent Gotjen from jonapier1992@gmail.com had likely done so using an IP address accessed from an apartment on Sunset Avenue. Neither Napier nor Schiele still lived at this address. The apartment manager, however, provided agents with a forwarding address, at which the agents were able to locate Schiele. After meeting with agents, Schiele gave them her Acer computer. Special Agent Eric Proudfoot ("Agent Proudfoot") submitted the computer to forensic
Burnham found these references on the Acer computer. Burnham also found that several sequentially numbered photos taken with a Polaroid camera were missing from among the larger images on the computer. These images had been deleted, but traces of the images were left as thumbnails accessible to the computer's operating system. Burnham was able to recover the missing photos among the thumbnail images. The photos were of "a small child, an infant[,]" with an erect penis close to her mouth. Burnham reported his findings to Agent Proudfoot, who in turn again met with Schiele. Schiele identified the child as her niece. The agents then sought an arrest warrant for Napier and a search warrant for the jonapier1992@gmail.com email account.
The FBI arrested Napier on January 18, 2013. During his arrest, Napier had on his person two cellphones and a microSD memory card. These items, Napier's tower computer (which Allen provided to authorities), and the email account from Google were submitted for complete forensic analysis.
During a search of the Gmail account, Burnham found large photographs of Schiele's niece that matched the thumbnails on the Acer computer. He also found the video that Napier had made of himself abusing Victim 1; the video "was titled three different ways: 64.wmv, six-month-old.wmv, and movie two-year-old girl self-made.wmv." The account included a great deal of email correspondence between Napier and other child pornographers about trading child pornography. It also included more than a dozen emails that Napier sent to himself, each attaching a video file that documented his sexual abuse of Victim 2.
The computer tower also held images matching those of the Acer thumbnails and the Gmail account, depicting Napier's abuse of Victim 1. Recovered from the microSD memory card was a reference to the video file "6 months old.wmv." One of the cellphones that Napier was carrying when he was arrested held photos matching those that Agent Gotjen had found in the AdultSpace.com profile for jonapier1992@gmail.com. The other cellphone used that address in its email inbox, and the phone contained a video, duplicative of one that Napier had emailed to himself in the Gmail account, depicting Napier's abuse of Victim 2.
According to a subsequent order of the district court, the following transpired next:
On October 11, 2013, Napier filed a motion to sever the counts against him and three separate motions to dismiss the indictment.
On January 3, 2014, the district court denied Napier's motion to dismiss. The court first found:
The district court found, however, that "the AUSA instituted Napier's transfer to Hamilton County so that CPD detectives could interview him and did not advise Napier's appointed attorney of this transfer," and that the AUSA's actions "demonstrate[d] poor judgment . . . as it was certainly foreseeable that an interrogation would take place." The district court further remarked "that the interview by CPD detectives, the public `bond hearing' in Hamilton County Court, and the attempted interview by Hamilton County Children's Services all occurred while Napier was in federal custody is astonishing, perplexing, and clearly inappropriate."
The district court concluded that the AUSA's actions did not amount to a Fifth Amendment Due Process Clause violation because the AUSA "was not present during the interrogation during which CPD detectives did not heed Napier's requests for counsel, and she is not responsible for their conduct." But, because the AUSA's actions "laid the groundwork" for the CPD's conduct, the district court ruled that the appropriate remedy was to preclude the government's use at trial of "any evidence obtained during that February 7, 2013 interview by the CPD detectives for any purpose[.]" The court also determined that this was a sufficient remedy for the alleged Sixth Amendment violation as well.
Napier was ultimately charged, in a twelve-count superseding indictment filed on October 2, 2013, with nine counts of Production of Child Pornography, in violation of 18 U.S.C. § 2251(a) and (e);
Napier's case proceeded to a four-day trial beginning on January 13, 2014. After the district court denied Napier's motion for judgment of acquittal, the jury returned guilty verdicts against Napier on
Napier's central argument on appeal is that the district court erred in denying his pretrial motion to dismiss the indictment against him with prejudice as a sanction for the prosecutor's alleged misconduct. The Supreme Court has recognized that the Due Process Clause of the Fifth Amendment may require reversal of a criminal conviction where the governmental action involved "shocks the conscience" and offends "canons of decency and fairness." Rochin v. California, 342 U.S. 165, 169, 172, 72 S.Ct. 205, 96 L.Ed. 183 (1952). Similarly, the Supreme Court has indicated in dicta that outrageous government conduct outside the grand jury process can result in dismissal on due process grounds if such conduct is so outrageous that it violates "fundamental fairness" or is "shocking to the universal sense of justice." United States v. Russell, 411 U.S. 423, 432, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); see also United States v. Allen, 619 F.3d 518, 525 (6th Cir.2010). This Court "reviews whether `outrageous government conduct' is a valid basis for dismissing an indictment—a question of law—de novo." United States v. Amawi, 695 F.3d 457, 483 (6th Cir.2012) (quoting United States v. Tucker, 28 F.3d 1420, 1421 n. 1 (6th Cir.1994)).
In the present case, the alleged government misconduct was the participation of one of the AUSAs in Napier's improper transfer out federal custody and into state custody. By extension, Napier argues, the AUSA's misconduct also includes the results of that transfer: the CPD's alleged violation of Napier's right to counsel under the Sixth Amendment and under Miranda when his repeated calls for counsel went unheeded.
Without explicitly saying so, Napier appears to argue that the AUSA's misconduct included not just initiating Napier's unlawful transfer into state custody, but also lying to the lower court about her role in the transfer—or, at minimum, "obfuscating" her role in the transfer. At Napier's February 11, 2013 arraignment, counsel to Napier informed the magistrate judge of the transfer. The magistrate judge specifically asked, "[D]o you know anything about this?" The AUSA replied:
Similarly, at a February 13, 2013 scheduling conference, the AUSA told the district court that the state court "made a mistake" in setting bond for Napier:
Subsequently, at the November 12, 2013 hearing on Napier's motions to dismiss, defense counsel read into the record a CPD investigation report.
The government vehemently denies any misconduct by the AUSA. Specifically, the government contends that both state facilities, the Boone County Jail and the Hamilton County Justice Center, are under contract with the federal government to house federal pretrial detainees. Accordingly, the government argues, federal pretrial detainees like Napier can be summarily moved between such facilities, and a state writ of ad prosequendum is only required when a federal defendant is taken from federal custody to a state proceeding. We need not resolve this dispute as to precisely when a writ is required in order to effectuate this kind of transfer. Even assuming Napier is correct, nothing in the record supports his assertion that the charges against him should have been dismissed.
First, the district court properly found, when issuing its order denying the motion to dismiss, that the AUSA had initiated the transfer. Thus, whatever "obfuscating" the AUSA may have done did not prevent the district court from making this factual finding in Napier's favor. Further, if one accepts that the AUSA initiated the transfer (and even assumes the AUSA lied to the court about it), Napier has not demonstrated that AUSA's conduct rises to the "outrageous," "conscience shocking" level necessary to warrant the extraordinary remedy of dismissing the charges against him with prejudice—as the district court determined. The district court properly found that even though it was "certainly foreseeable than an interrogation
Second, even though the district court did not find either a Fifth or Sixth Amendment violation, the court still took appropriate steps to sanction the "poor judgment on the part of the AUSA."
Indeed, the remedy fashioned by the district court actually went further than the law requires. Supreme Court precedent establishes that when an inculpatory statement is obtained in violation of the Sixth Amendment, it may not be used as part of the government's substantive evidence at trial, but may be used to impeach a defendant's false or inconsistent testimony. See Michigan v. Harvey, 494 U.S. 344, 345-46, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990). Here, the district court not only precluded the government from using Napier's statements as substantive evidence, but also as impeachment evidence. This remedy was particularly apropos in light of the government's earlier indication to Napier that it would potentially use the contents of his inculpatory statements to the CPD officers during its rebuttal at trial. Suppression of this evidence thus eliminated the "substantial threat" of prejudice that Napier complained about in his motion to dismiss. Napier has not demonstrated—or, in fact, even argued—that the relief provided by the district court was insufficient to remedy the potential violation of his Fifth and Sixth Amendment rights for the purposes of his federal prosecution.
Third, and most importantly, Napier has not demonstrated any actual prejudice as a result of the AUSA's conduct. See United States v. Morrison, 449 U.S. 361, 365, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981) (holding
Finally, all of the cases Napier has cited in support of his position merely stand for the proposition that dismissal of the indictment may be an appropriate remedy in some circumstances. See, e.g., Rochin, 342 U.S. at 172, 72 S.Ct. 205 (finding conscience-shocking conduct where deputy sheriffs illegally entered the open door of a house, forced open the door to the accused's bedroom, forcibly attempted to extract capsules that the accused swallowed, and directed a physician to pump the accused's stomach so that the capsules were vomited); cf. Russell, 411 U.S. at 431-32, 93 S.Ct. 1637 ("While we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction, the instant case is distinctly not of that breed.") (citation omitted). But the problem for Napier on appeal is the same as it was before the district court: "Napier does not cite to any cases with facts remotely analogous to those here, and the Court cannot conclude based on the precedent before it that the government's conduct in this case . . . rises to the level of conduct that warrants a dismissal of an indictment." This Court has never sanctioned the remedy requested by Napier for any pretrial conduct by a federal prosecutor, and this case will not be the first.
Napier next contends that the district court erred in denying his motion for judgment of acquittal, which was premised on his assertion that the government failed to prove the interstate commerce element of the crimes charged. Each of the twelve charges—nine counts of production of child pornography, and one count each of transportation, distribution, and receipt of child pornography—included an element requiring an interstate commerce connection. See 18 U.S.C. §§ 2251(a), 2252(a)(1), 2252(a)(2). The district court, consistent with Napier's request at trial, instructed the jury that this element could be satisfied by proof that "the visual depiction or the production or transmission materials crossed a state line." In denying Napier's motion for judgment of acquittal, the district court explained: "[T]he Court finds that taking the evidence and the inferences most favorably to the government, a reasonable mind could fairly, if not conclusively, find guilt beyond a reasonable doubt. I think there was just overwhelming evidence by the government of everything, including the interstate commerce elements."
"We review de novo a challenge to the sufficiency of the evidence supporting a criminal conviction." United States v. Carson, 560 F.3d 566, 579 (6th Cir.2009). In evaluating a sufficiency-of-the-evidence claim, we must determine "whether, after
We find there is sufficient evidence for the jury to conclude that the government established the interstate commerce nexus. There is no support for Napier's contention that the government "failed to present any evidence on this element." During closing, the government devoted substantial time to outlining which of the government's exhibits and which witness testimony supported each of the twelve counts of conviction. Generally speaking, this evidence and testimony established that Napier was in Ohio when he recorded his sexual abuse of both Victim 1 and Victim 2 (Counts 1-9). The interstate commerce requirement for each count was satisfied in at least one of three different ways. First, Napier shared the child pornography he created, through email, with other child pornographers and with Agent Gotjen. These recipients were all located outside of Ohio: as established either by direct testimony (in the case of Agent Gotjen) (Count 11), or by the technical features of the recipient's email communications (such as the timestamp) (Counts 1 and 10). At least some of these videos were taken using a cellphone, labeled as made in Taiwan, which had travelled in interstate commerce (Counts 2-9). Second, in one instance, Napier received child pornography from someone whose web domain and the content of his email suggested he was outside the United States (Count 12). Third, Napier emailed this pornography to himself from the Eastern Time Zone to the Pacific Time Zone (Counts 1-10).
Simply put, the interstate commerce requirement is not as strenuous as Napier seems to think it is. The distribution count (Count 11) is the simplest to address, because there was direct testimony from Agent Gotjen establishing that she was based Phoenix at the time of her communications with Napier and there has been no suggestion by the defense that Napier was ever anywhere but Ohio. The other eleven counts rely on circumstantial evidence of interstate travel.
At trial, the government also presented evidence that some, if not all, of the Victim 2 videos that Napier emailed were taken using a cellphone whose label indicated it was made in Taiwan (Counts 2-9).
Nonetheless, Napier argued during closing, and argues again on appeal, that the government must prove where the recipient of any particular email was physically located when the email transmission was received. This is not the relevant inquiry. The relevant inquiry is whether there is enough circumstantial evidence that these electronic communications were transmitted through interstate wires. Given the omnipresent nature of the Internet, this is not a difficult burden for the government to satisfy. See United States v. Mellies, 329 Fed.Appx. 592, 605-07 (6th Cir.2009); see also United States v. MacEwan, 445 F.3d 237,
The same analysis holds true for the receipt charge (Count 12), which concerned child pornography Napier received on September 13, 2010, from someone using the email address DirtyHarry@o2email.co.uk. The relevant inquiry is not, as Napier argued at trial, whether the government proved that "Dirty Harry" was physically located in the United Kingdom. The relevant inquiry is whether Dirty Harry's email address is sufficient circumstantial evidence that Dirty Harry's email communications to Napier were transmitted through foreign and interstate wires. Given that Dirty Harry's email address indicates that Dirty Harry's cellular or internet service is provided by O2—a telecommunications company whose service is not available in the United States but is widely available in the United Kingdom—the jury could reasonably find the government had satisfied the jurisdictional requirement on this count.
Napier next argues that the district court erred in admitting the following evidence at trial: (1) a document from Time Warner Cable, obtained pursuant to a government subpoena, showing that the email address jonapier1992@gmail.com was accessed at the Sunset Avenue address and that Napier was the subscriber of the account; and (2) the two cell phones, microSD card, and Schiele's Acer computer—all of which bore markings indicating they were manufactured outside of the United States. On appeal, Napier contends admission of the Time Warner document and the electronic devices violated his rights under the Confrontation Clause. At trial, however, Napier objected to the devices' admission solely on hearsay grounds. The district court found the Time Warner document was not hearsay, and was only being admitted to demonstrate the FBI's investigation. The court also immediately provided a limiting instruction to the jury to that effect. As to the electronic devices, the district court found the markings were not hearsay, and that the relevant witnesses were only reading what the markings said (which the jury could do for itself).
We review a district court's evidentiary rulings under the abuse of discretion standard, United States v. White, 492 F.3d 380, 398 (6th Cir.2007), and find the district court correctly admitted the Time
We also find that admission of the two cell phones, microSD card, and Acer computer did not violate the Confrontation Clause. The district court presumed the government was not offering the manufacturer labels on these devices as proof of travel in interstate commerce. The government's reference to the phones' country of manufacture during closing, however, would seem to call into question the district court's presumption. At trial, Napier framed admission of this evidence as a violation of the rule against hearsay. Napier's hearsay objection was itself a restatement of his general argument that the government had failed to establish the federal jurisdictional requirement. On appeal, Napier attempts to reframe this issue as a violation of the Confrontation Clause. We find Napier's hearsay objection insufficient to preserve the constitutional claim he is now asserting, and therefore apply plain error review. See United States v. Hadley, 431 F.3d 484, 498 (6th Cir.2005) ("Because Defendant raised only a hearsay objection to these statements at trial, and did not challenge their admissibility on constitutional grounds, our review here is governed by the plain error standard.").
"Under this standard, we may correct a purported error that was not raised at trial only if there is `(1) error, (2) that is plain, and (3) that affect[s] substantial rights.'" Id. (quoting Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)) (alteration in original). The Confrontation Clause bars the "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination." Crawford, 541 U.S. at 53-54, 124 S.Ct. 1354 (emphasis added). Thus, "[t]o trigger a violation of the Confrontation Clause, an admitted statement must be testimonial in nature, and must be hearsay—that is, a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." United States v. Deitz, 577 F.3d 672, 683 (6th Cir.2009) (internal quotation marks omitted).
Regardless of whether the manufacturer labels are hearsay, they are at most non-testimonial statements, which are not barred by the Confrontation Clause. A testimonial statement is (1) "[a] solemn declaration or affirmation made for the purpose of establishing or proving
Accordingly, Napier has not established any plain error in the district court's admission of these exhibits.
Finally, Napier argues that his conviction on the distribution charge (Count 11)—relating to the compilation of child pornography Napier sent to Agent Gotjen on July 25, 2010—should be vacated because "the [g]overnment relied on evidence wholly different that that passed upon by the grand jury." Napier claims that, because the petit jury heard different evidence on the distribution charge than did the grand jury, either a due process violation or a "fatal" variance resulted.
Napier's argument is difficult to follow. He argued at trial—in the context of his motion for judgment of acquittal—and now again on appeal that the evidence presented to the grand jury was somehow "different," but provides little elucidation as to what that evidence was or how it differed from the evidence presented at trial. Napier's argument appears to be that the evidence the government presented at trial—the "47.wmv" compilation video—was never presented to the grand jury. Rather, Napier alleges, the government argued before the grand jury that on June 25, 2010, he traded child pornography on RapidShare.com. The district court understood Napier's argument as follows: "It seems to me that what you're saying is that . . . when the government proves probable cause in front of the grand jury, it has to present its entire case there; and if it deviates in any way from its case between the grand jury and the petit jury . . . th[en] there is a problem." The district court rejected this argument, finding it "irrelevant" what evidence the government produced before the grand jury. (Id.)
Napier did not raise his due process argument before the district court. The panel therefore reviews for plain error. Hadley, 431 F.3d at 498. Napier cites no evidence that the offense charged in the indictment is different from the offense charged at trial. Instead, Napier offers nothing but his own unsupported factual allegations. This is insufficient under any standard of review, and especially so under plain error review. But even assuming Napier is correct, and that the evidence does not "match," this does not undermine the validity of the indictment or the jury's conviction. And, as the district court noted, Napier cites no authority for the proposition that due process requires that the evidence at trial exactly match the evidence presented to the grand jury.
Napier implicitly argues that he committed more than one distribution offense on June 25, 2010. From this he concludes that, because the evidence allegedly does not "match," he "has no ability to plead
Conversely, Napier did raise his "fatal" variance argument before the district court. Accordingly, we review de novo whether there was a variance between the indictment and the proof offered at trial. See United States v. Bearden, 274 F.3d 1031, 1039 (6th Cir.2001). Variances "are not per se prejudicial," United States v. Budd, 496 F.3d 517, 521 (6th Cir.2007), or "fatal" in Napier's parlance. Rather, reversal is warranted only where a defendant proves (1) that a variance occurred, and (2) that the variance affected the defendant's substantial rights. United States v. Prince, 214 F.3d 740, 757 (6th Cir.2000). A variance "occurs when the charging terms [of the indictment] are unchanged, but the evidence at trial proves facts materially different from those alleged in the indictment." Id. at 756-57 (alteration in original) (internal quotation marks omitted). The substantial rights of the defendant "are affected only when the defendant shows prejudice to his ability to defend himself at trial, to the general fairness of the trial, or to the indictment's sufficiency to bar subsequent prosecutions." United States v. Hynes, 467 F.3d 951, 962 (6th Cir.2006) (quoting United States v. Barrow, 118 F.3d 482, 488-89 (6th Cir.1997)). Here, Napier has identified no difference between the indictment's terms and the evidence at trial. Moreover, he has not identified any prejudice.
Accordingly, we find there was neither a due process violation nor a prejudicial variance.
Based on the foregoing analysis, we
