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                                                              [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 18-13056
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket No. 2:16-cr-00327-MHH-JHE-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

LARRY DEAN GARRETT, JR.,

                                                              Defendant-Appellant.
                           ________________________

                   Appeal from the United States District Court
                      for the Northern District of Alabama
                          ________________________

                                (February 24, 2020)

Before JORDAN, NEWSOM, and ANDERSON, Circuit Judges.

PER CURIAM:

      Larry Garrett, Jr., was convicted for production of child pornography, in

violation of 18 U.S.C. §§ 2251(a) and (e). On appeal, he argues (1) that the district
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court abused its discretion by admitting evidence (a) of two sets of sexually

explicit drawings he made while in custody and (b) regarding his prior admission

to, and conviction for, sexually abusing a child; and (2) that the district court erred

by denying his motion to suppress statements that he made to law enforcement

officers during a jail interview. After careful review of the record, we affirm on

both issues.

                                    I. BACKGROUND

       In September 2016, a grand jury indicted Larry Garrett, Jr., for production of

child pornography, in violation of 18 U.S.C. §§ 2251(a) and (e). The indictment

essentially alleged as follows. In 2016, Garrett lived with his cousin, Shareveise

Garrett, for approximately two and a half months at her apartment in Birmingham,

Alabama. Shareveise Garrett lived upstairs from Brianna Holmes, whose

children—including M.C., the victim in this case—lived with her sister, Kizzy

Holmes, but were often in Brianna’s apartment. Larry Garrett went by the

nickname “Magic,” and spent time with Holmes’s children both in her apartment

and in Shareveise’s.

       While Garrett was staying with Shareveise, he provided an SD card 1 to

Anthony “Amp” Jones, who lived in the same apartment complex, which



1
 A Secure Digital (“SD”) card is a memory card used in portable electronic devices. See Solo v.
SD-3C LLC, 

, 1084 (9th Cir. 2014) (noting that “SD cards are the dominant form
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ostensibly contained several bootlegged movies on it. However, when Jones

opened the files on the SD card, he instead saw a video of a black man with long

fingernails masturbating and putting his penis in a child’s mouth. Jones could only

see a “shadowy figure” and the man’s hands, but he recognized the man as Garrett

because of the hands’ blackness and the long fingernails and because he

recognized the voice on the video as that of Garrett. Jones also recognized the

child in the video as M.C., and contacted Demetrius Holmes—Brianna and Kizzy

Holmes’s brother—and informed him that he had a video that they needed to see.

Demetrius spoke with Kizzy and told her that they “needed to go now and get the

tape.”

         When Kizzy arrived at Jones’s apartment, he showed her the video. She

identified the child in the video as M.C., her nephew, and called 911. Several

police officers from the Birmingham Police Department responded to the call and

watched the video on the SD card, which Kizzy Holmes provided to the police the

next day. Shortly thereafter, the police department referred the case to the Federal

Bureau of Investigation and sent them the SD card. The Child Advocacy Center

conducted an interview of M.C., at which several FBI agents were present.




of flash memory card on the market, and are widely used in consumer electronics devices such as
cellular phones and digital cameras”).
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      In late May 2016, Garrett was detained by the Randolph County, Alabama,

Sheriff’s Office for failing to register as a sex offender. On May 23, while he was

detained, Garrett was interviewed by Special Agent Stephen Ferguson of the FBI

and Detective Ashley Knighten of the Birmingham Police Department. At the

beginning of the interview, the following exchange took place among Garrett,

Ferguson, and Knighten:

      GARRETT: And I can have my lawyer present?

      FERGUSON: If that’s what you want.

      GARRETT: I, I would rather have my lawyer present, because most of
      the time when I do this, it does not turn out good.

      KNIGHTEN: So you don’t want to talk to us today?

      GARRETT: I mean, I would just rather—I would feel comfortable with
      a lawyer because, like I say, most of the time when I’ve done this in the
      past it has always turned out bad.

      FERGUSON: OK.

      GARRETT: You know, I’m not being funny or anything, but it has
      always turned out bad. I don’t know what the reason for, you know,
      other than, uh, I guess, my payee, something about my payee?

      FERGUSON: Your what?

      GARRETT: My payee for my benefits. My payee—

      FERGUSON: We’re not here talking about, we’re not here to talk about
      your benefits or entitlements, that’s not what we’re here—

      GARRETT: Oh, oh, oh, oh. Then I wouldn’t know anybody being in
      Birmingham. I wouldn’t know—you said you’re from Birmingham
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      PD? The only other person I know in Birmingham, I have a relative in
      Birmingham, but other than that, you know, she was my payee, other
      than that I don’t know any other reason why—that’s why I said payee,
      she was over my money, my benefits.

      FERGUSON: OK. So my question is, we have some questions to ask
      you, and we are not here to talk about entitlements, or—we’re just
      following up on an investigation. It’s not concerning your entitlements
      or your payee, anything like that.

      KNIGHTEN: Yeah, nothing to do with money.

      FERGUSON: It has nothing to do with your money or whatever
      benefits you are receiving. We’re not concerned with that at all.

      GARRETT: Uh . . . .

      FERGUSON: Would you be willing to talk to us and answer a few
      questions?

      GARRETT: And you said I can stop answering at any time?

      FERGUSON: Yes, that’s one of your rights. You have the right to
      remain silent: you don’t have to say anything. Anything you do say can
      be used against you in court. And you have the right to talk to an
      attorney for advice before we ask you any questions—

      GARRETT: So if I start talking I automatically cancel out that right for
      the attorney to be present?

      FERGUSON: No. No, and again, if you want to stop the interview at
      any time, that’s your right to do so.

      GARRETT: You’ve read them all, so I’ll just initial them.

After initialing and signing the waiver form, Garrett also stated, “I don’t know

what this is about just yet, but if it’s something I’m not aware of I’m probably

going to want to have my lawyer present.” The interview then continued for about
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two hours. During the course of the interview, Garrett initially denied knowing

Jones or any of the Holmeses and that he ever lived in Birmingham, but when he

was presented with evidence to the contrary, he admitted to knowing them and

staying with Shareveise in Birmingham. He admitted making a movie for Jones

but denied owning a cell phone when he was arrested.

      Garrett was subsequently indicted on the child pornography charges in

September 2016, and the indictment referred to a 1999 Michigan criminal

conviction for sexual conduct with a person under 13. Garrett moved to suppress

the statements he made in the interview with Ferguson and Knighten, arguing that

the interview was custodial in nature, that he invoked his right to counsel, and that

the interview continued after he did so. The government opposed the motion,

arguing that Garrett’s request for counsel was not unequivocal and that he

voluntarily initiated further discussion after allegedly invoking his right. The

magistrate judge held an evidentiary hearing at which Ferguson testified, and

subsequently issued a report and recommendation recommending that the district

court deny Garrett’s motion because the interview was not custodial, Garrett’s

alleged invocation of his right to counsel was equivocal and ambiguous, and he

voluntarily reinitiated conversation with the agents. Garrett opposed the report and

recommendation, arguing that his invocation of counsel was clear and that the

agents interviewing him misled, pressured, manipulated, and coerced him to


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continue the conversation. The district court accepted the report and

recommendation, finding that Garrett blended his requests for counsel with

attempts to ascertain what the interview was about and concluding that Garrett’s

subsequent statements were voluntary.

      Separately, the government filed a motion in limine, requesting that the

district court admit evidence of Garrett’s creation and possession of sexually

explicit drawings under Rule 404(b) and his Michigan state conviction for sexual

conduct with a minor under Rule 414. The drawings were hand-drawn images of

young boys engaging in oral and anal sex acts with adult men that Garrett

possessed while in custody at the Shelby County, Alabama, jail. The government

later learned that Garrett possessed similar drawings at the Randolph County jail,

and sought to include those in its motion in limine in its reply brief and at the

hearing. The government argued that the drawings were relevant to show motive,

intent, plan, and absence of mistake because they showed Garrett’s interest in

visual depictions of adults having sex with children. It further argued that the

drawings were relevant to show identity because they were depictions of young

boys performing oral sex acts on adult men, like in the video allegedly of Garrett.

      The Michigan conviction took place in 1999. In a police interview after

being arrested, Garrett confessed to having oral and anal sex with an eight-year-old

child. He pleaded nolo contendere to the charge and was convicted of second-


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degree criminal sexual conduct. In the present case, the government argued before

the district court that the offense was admissible under Rule 414 because it was a

“child molestation offense” included in the Rule’s definition and bolstered the

victim’s credibility by demonstrating that Garrett had a sexual interest in young

boys. In the alternative, the government argued that the offense was admissible

under Rule 404(b) because it was not unduly prejudicial and was especially

probative given that the limited evidence in the case obscured the identity of the

man in the video.

      Garrett opposed the motion in limine with a self-styled “motion in absolute

prohibitive,” which the government construed as a response to its motion in limine.

Garrett argued that the drawings were taken in violation of his Fourth Amendment

rights and that the conviction was inadmissible because his rights were violated

during the 1999 interview where he admitted to the conduct. He indirectly argued

that the drawings and offense were improper character evidence. Garrett’s standby

counsel argued that the drawings were irrelevant and not probative because they

did not help identify Garrett as the man in the video because they did not depict

Garrett committing the sexual acts—and in any event, the drawings were highly

prejudicial. After the government presented several witnesses to demonstrate that

Garrett’s constitutional rights were not violated in the 1999 interview, Garrett and

his standby counsel reasserted their previous arguments. Counsel added that the


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offense was inadmissible because it was too remote and that the drawings were

improper character evidence that did not go to plan, design, scheme, motive, or

intent because they were unrelated to the video and their admission would confuse

the issue.

      Ultimately, the district court denied Garrett’s motion. As to the drawings,

the district court concluded that they were “incredibly relevant” to identifying the

person in the video and were therefore admissible under Rule 404(b). And as far

as its applicability to the statements Garrett made in 1999, the district court

determined that his motion was an improper attempt to suppress his statements. It

further concluded that the offense was admissible under Rule 414.

      Garrett proceeded to trial on the offenses and maintained his innocence

throughout, arguing that the evidence showed that the man in the video was Jones,

not him. He was found guilty and the district court sentenced him to a 600 month

prison term, followed by supervised release for a term of life. Garrett timely

appealed to us.

                      II. ADMISSIBILITY OF EVIDENCE

                               A. Standard of Review

      We review the district court’s determination on the admissibility of evidence

for an abuse of discretion. United States v. Baptiste, 

, 1311 (11th

Cir. 2019). As a result, the complaining party must show that the court’s ruling


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had a “substantial prejudicial effect.” United States v. Breitweiser, 

,

1254 (11th Cir. 2004) (quotation omitted).

      To convict a defendant of production of child pornography, 18 U.S.C.

§ 2251(a) (which is in Chapter 110 of Title 18) in part requires the government to

prove that the defendant used, persuaded, induced, enticed or coerced a minor to

engage in any sexually explicit conduct for the purpose of producing any visual

depiction of such conduct. 18 U.S.C. § 2251(a).

                     B. Admissibility of Garrett’s Drawings

      Under Rule 404(b) of the Federal Rules of Evidence, “Evidence of a crime,

wrong, or other act is not admissible to prove a person’s character in order show

that on a particular occasion the person acted in accordance with the character.”

Fed. R. Evid. 404(b)(1). Notwithstanding that general prohibition, extrinsic

evidence “may be admissible for another purpose, such as proving motive,

opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or

lack of accident.” Fed. R. Evid. 404(b)(2). As we have routinely explained, we

use a three-part test to determine whether extrinsic evidence is properly admitted

under Rule 404(b): “(1) the evidence must be relevant to an issue other than

defendant’s character; (2) the probative value must not be substantially outweighed

by its undue prejudice; [and] (3) the government must offer sufficient proof so that

the jury could find that defendant committed the act.” United States v. Ellisor, 522


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, 1267 (11th Cir. 2008) (citing United States v. Ramirez, 

,

1354 (11th Cir. 2005)).

       When examining the probative value of an extrinsic act, we consider the

government’s need for the evidence to prove the defendant’s guilt, the similarity

between the extrinsic act and the charged offense, and the extrinsic act’s temporal

remoteness from the charged offense. 

. A limiting

instruction may be provided to reduce the prejudicial impact of extrinsic evidence.

United States v. Zapata, 

, 1358 (11th Cir. 1998).

       On appeal, Garrett argues that the district court abused its discretion in

admitting the drawings under Rule 404(b) because their prejudicial effect greatly

outweighed their probative value. The crux of his argument is that the drawings

were irrelevant in establishing the identity of the man in the video and only served

as improper propensity evidence. We disagree.

       As an initial matter, we have no doubt that the drawings were prejudicial.

We have noted previously that “a reasonable jury undoubtedly would” find

evidence of “child pornography very inflammatory.” United States v. Hersh, 

, 1243 (11th Cir. 2002). The inflammatory nature of the kind of

evidence that is usually necessary to achieve a conviction in a case like this was

reflected in the trial transcript. Relatively early on in the trial, the district court,

after excusing the jury to hear argument on an objection, “want[ed] the record to


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reflect that one of the jurors had his hand over his mouth and looked like he might

become ill” while Kizzy Holmes was testifying about the video of Garrett and

M.C. But this sort of evidence, however inflammatory, is frequently necessary to

achieve a conviction on charges of child molestation or production of child

pornography. We have recognized that while the evidence may be inflammatory

and prejudicial, so is the underlying conduct. See 

.

      Accordingly, while the drawings were prejudicial, they were also probative.

While we have not had occasion to comment on the probative value of self-drawn

drawings or cartoons, we do have analogous precedent. In United States v. Woods,

for example, we concluded that a defendant’s “typed statement describing his

molestation of his niece” was probative of the defendant’s “interest in child

pornography” and of the identity of the person who was responsible for

downloading child pornography on his computers. 

, 1065 (11th Cir.

2012). Similarly, in McGarity, we allowed the introduction of a similar statement

under Rule 403 because it was probative of the defendant’s identity where he took

steps “intended to avoid detection” because it helped make the Government’s case

“believable but also 

(quoting United States v.

Lopez, 

, 1247–48 (11th Cir. 2011)).

      This reasoning is applicable here. Though Garrett suggests that he used the

drawings as a coping mechanism to deal with sexual abuse that he suffered as a


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child, it is a reasonable inference is that Garrett drew the pictures because he was

interested in depicting sex with children. While the drawings certainly do not

establish as a certainty that Garrett was the man depicted in the video, they are

certainly probative of that question. And Garrett’s main defense was that Jones

was the man depicted in the video—making the question of the man’s identity

central to the entire trial. Accordingly, the government had a specific need for the

evidence in order to prove Garrett’s guilt. See 

.

      Therefore, while the drawings were likely prejudicial, as most evidence in

child pornography and molestation cases is, the prejudice caused by their

admission did not substantially outweigh their probative value, as Rule 404(b)

requires for exclusion. We cannot conclude that the district court abused its

discretion in this regard.

                  C. Admissibility of Garrett’s 1999 Conviction

      Though the Federal Rules of Evidence “generally prohibit the admission of

propensity evidence, . . . they provide a specific exception for ‘child molestation’

cases.” United States v. McGarity, 

, 1244 (11th Cir. 2012) (citing

Fed. R. Evid. 404(b), 414(a)). Rule 414(a) states, “In a criminal case in which a

defendant is accused of child molestation, the court may admit evidence that the

defendant committed any other child molestation. The evidence may be

considered on any matter to which it is relevant.” Fed. R. Evid. 414(a). “Child


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molestation” is defined in part as any crime under federal or state law involving

“any conduct prohibited by 18 U.S.C. chapter 110,” as well as “contact between

the defendant’s genitals or anus and any part of a child’s body.” Fed. R. Evid.

414(d)(2)(B); see Fed. R. Evid. 414(d)(1) (defining “child” as a “person below the

age of 14”).

      Evidence admissible under Rule 414 still must satisfy the requirements of

Rule 403 of the Federal Rules of Evidence. United States v. Woods, 

, 1064 (11th Cir. 2012). Rule 403 states, “The court may exclude relevant

evidence if its probative value is substantially outweighed by a danger of . . . unfair

prejudice.” Fed. R. Evid. 403. When assessing a district court’s ruling under Rule

403, we view the evidence in the light most favorable to admission, maximizing its

probative value and minimizing its prejudicial effect. United States v. Bradberry,

, 1253 (11th Cir. 2006).

       We have no difficulty in concluding that the district court did not abuse its

discretion in admitting Garrett’s 1999 conviction for sexual conduct with a minor.

The conviction was not introduced as propensity evidence, but rather for other

“relevant” matters, like intent or identity. Moreover, the introduction of the

conviction also satisfies Rule 404(b)’s requirements—again, while the conviction

was assuredly prejudicial, the prejudice it caused Garrett did not substantially

outweigh the probative value. We affirm.


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                           II. MOTION TO SUPPRESS

      In assessing a motion to suppress, we review the district court’s factual

findings for clear error and its legal conclusions de novo, construing all the facts in

the light most favorable to the prevailing party. United States v. McCullough,

, 1199 (11th Cir.), cert. denied, McCullough v. United States, 137 S.

Ct. 2173 (2017). However, harmless error review applies to decisions denying

motions to suppress on Fifth Amendment grounds. United States v. Arbolaez,

, 1292 (11th Cir. 2006). Generally, the test for constitutional errors

argued on direct appeal is harmless beyond a reasonable doubt. Davis v. Ayala,

, 2197 (2015).

      Statements a suspect makes during a custodial interrogation are inadmissible

unless the law enforcement officers inform the suspect of his Fifth Amendment

rights, including the right to have counsel present during an interrogation, and the

suspect waives those rights. Miranda v. Arizona, 

, 468–76 (1966). A

suspect is in custody for purposes of Miranda when there are “circumstances that

are thought generally to present a serious danger of coercion.” Howes v. Fields,

, 508–09 (2012). The test is objective, requiring consideration of

whether a reasonable person would have felt that he could stop the interrogation

and leave. 

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       Once a suspect in a custodial interrogation invokes his right to counsel, law

enforcement officers cannot continue to interrogate him until counsel is provided,

unless the suspect initiates further communication. Edwards v. Arizona, 

, 484–85 (1981).2 Nonetheless, the officers are not required to stop an

interrogation when a suspect fails to unequivocally invoke his right to counsel.

Davis v. United States, 

, 461–62 (1994).

       Determining whether a defendant had invoked his right to counsel is an

objective inquiry, requiring, at a minimum, a statement that can be reasonably

construed as a desire for an attorney. 

“But if a suspect makes a

reference to an attorney that is ambiguous or equivocal in that a reasonable officer

in light of the circumstances would have understood only that the suspect might be

invoking the right to counsel,” the officer may continue to question him. 

(emphasis in original).

       If the suspect invokes his right to counsel, Edwards does not exclude

statements he made after initiating further discussion with the officers and

knowingly and intelligently waiving the right that he had invoked. Oregon v.

Bradshaw, 

, 1041–46 (1983). To “initiate” a conversation with law




2
 In United States v. Valdez, we applied the harmless beyond a reasonable doubt standard to an
Edwards violation. 

, 1234 (11th Cir. 1989).
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enforcement, a defendant’s statement must evidence “a willingness and a desire for

a generalized discussion about the investigation.” 

      We conclude that the district court did not err in denying Garrett’s motion to

suppress. While we think that it was likelier than not that the interview was

custodial—Garrett was in jail having been arrested on a state charge, he was being

interviewed by two law enforcement officers in a small interview room, and he

testified that he was handcuffed—Garrett’s references to counsel were ambiguous.

He merely suggested that he may have wanted his counsel present but, as the

district court determined, this may have been an indirect attempt to ferret out from

the officers the purpose of the interview. Moreover, even assuming that Garrett

made an unambiguous request for counsel, we agree with the district court that

Garrett voluntarily, knowingly, and intelligently reinitiated further communication

with the officers thereafter. Accordingly, we affirm the district court’s denial of

Garrett’s motion to suppress.

                                IV. CONCLUSION

      We affirm the district court’s granting of the government’s motion in limine

regarding Garrett’s drawings and 1999 Michigan state conviction for sexual

conduct with a minor. While this extrinsic evidence may have been prejudicial to

Garrett, it was also highly probative of critical issues in the trial—including the

identity of the man in the video. We also affirm the district court’s denial of


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Garrett’s motion to suppress the statements he made in an interview while detained

because we conclude that Garrett’s request for counsel was ambiguous and that he

reinitiated conversation with the officers. In sum, the district court’s order and

Garrett’s conviction are

      AFFIRMED.




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