United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 18-1355
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                              Jayme Nathaniel Walker

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
               for the Western District of Missouri - Jefferson City
                                 ____________

                          Submitted: November 14, 2018
                              Filed: March 6, 2019
                                 ____________

Before GRUENDER, KELLY, and GRASZ, Circuit Judges.
                          ____________

GRUENDER, Circuit Judge.

       Jayme Walker met W.F., who was fourteen at the time, “on a social media site
for guys seeking other people.” W.F. falsely claimed that he was eighteen years old
to join the site, but he told Walker that he was fourteen. The two exchanged sexual
messages and images on the website and by text message. The communications
began in June 2013 and ended in February 2014 when W.F.’s mother discovered the
exchanges and a police investigation began.

      Walker waived indictment and was charged by information with four counts.
The Government later dismissed one count. Following trial, a jury found him guilty
on the remaining three counts: (1) 18 U.S.C. § 1470, Transfer of Obscene Materials
to a Minor; (2) 18 U.S.C. § 2252(a)(2) and (b)(1), Receipt of Child Pornography; and
(3) 18 U.S.C. § 2251(a), Sexual Exploitation of a Minor. The district court1
sentenced Walker to 264 months’ imprisonment.

       Walker now appeals. He claims that the district court erred by refusing to
admit evidence of W.F.’s sexual conversations with other men. He argues further that
the district court erred in excluding evidence about the source of Walker’s fantasies
and in limiting his cross-examination of the victim. He also contends the district
court abused its discretion by failing to require knowledge of the victim’s age in a
jury instruction and by denying his motion for judgment of acquittal. Finally, he
argues that his sentence constitutes cruel and unusual punishment in violation of the
Eighth Amendment. We consider each of these arguments in turn and affirm.

                                         I.

                                         A.

       “We review a district court’s interpretation and application of the rules of
evidence de novo and its evidentiary rulings for abuse of discretion.” United States
v. Street, 

, 708 (8th Cir. 2008). “However, we review evidentiary



      1
      The Honorable Roseann A. Ketchmark, United States District Judge for the
Western District of Missouri

                                         -2-
rulings de novo when they implicate constitutional rights.” United States v. Pumpkin
Seed, 

, 558 (8th Cir. 2009).

       First, Walker argues that the district court erred when it excluded evidence of
W.F.’s sexual communications with other men. In a case involving “alleged sexual
misconduct,” the Federal Rules of Evidence prohibit the admission of evidence
“offered to prove that a victim engaged in other sexual behavior” or “evidence offered
to prove a victim’s sexual predisposition.” Fed. R. Evid. 412(a)(1), (2). But the rule
contains three exceptions for criminal cases. Fed. R. Evid. 412(b). Only the first and
third exceptions are at issue here. The first exception allows “evidence of specific
instances of a victim’s sexual behavior, if offered to prove that someone other than
the defendant was the source of semen, injury, or other physical evidence.” Fed. R.
Evid. 412(b)(1)(A). The third exception allows “evidence whose exclusion would
violate defendant’s constitutional rights.” Fed. R. Evid. 412(b)(1)(C).

       Walker argues that the first exception applies in this case “because the images
sent by [W.F. to Walker] could have been of himself or other people, or both.” And
he says the images “could have been prepared by [W.F.] for another person or during
another conversation with someone else,” rather than at Walker’s inducement.
Walker sought to “adduce evidence that [W.F.] initiated communication with other
adults through age-restricted websites; and sent nude photographs using age-
restricted websites, during the same time that he is alleged to have communicated
with Defendant.” The district court questioned the relevance of the communications
and observed that Walker appeared to be arguing that “exploitation by this defendant
isn’t as bad because lots of folks were exploiting [W.F.].” It then excluded the
communications.

      We find no basis for concluding that the district court abused its discretion in
excluding the evidence. The first exception to Rule 412 allows “evidence of specific
instances of a victim’s sexual behavior, if offered to prove that someone other than

                                         -3-
the defendant was the source of . . . other physical evidence.” But here, Walker
sought to question W.F. about the general fact that he had initiated sexual
conversations with and sent images of himself to other people. He did not seek to
introduce “specific instances” that indicated that others had induced W.F. to produce
the images that W.F. later sent to Walker. Instead, Walker argued that the evidence
he sought to introduce showed that W.F. “was initiating with everybody. This is what
he did. This was his hobby with everybody.” Thus, it was not an abuse of discretion
for the district court to exclude the evidence. See United States v. Ogden, 

, 604-05 (6th Cir. 2012) (excluding evidence of the victim’s chat logs with other
men offered by the defendant to show that “one of those men might have originally
persuaded the victim to take the explicit pictures” in a § 2251 case because Rule
412(a)(1) “forbids the introduction of ‘evidence offered to prove that a victim
engaged in other sexual behavior’”).

      Walker also argues that the third Rule 412 exception applies in this case
because evidence that W.F. “sent and received numerous sexual communications with
a number of people during the same period of time he sexted Appellant directly
contradicts” an element of Count Three: that Walker used, persuaded, induced, or
enticed W.F. to produce the image. 18 U.S.C. § 2251(a). Walker claims that the
exclusion of the evidence thus violated his Fifth and Sixth Amendment rights to
“introduce evidence in his own defense.”

       When considering whether evidence is admissible under Rule 412(b)(1)(C),
“we start with the premise that defendants have a constitutional right under the Fifth
and Sixth Amendments to introduce evidence in their defense.” Pumpkin 

. But the right “is not without limitation.” 

“[T]he key
inquiry . . . is whether the district court’s exclusion of evidence . . . was arbitrary or
disproportionate to the purposes that its exclusion was designed to serve.” 

district court “saved [W.F.] from the harassment and embarrassment concomitant
with discussing the details” of his sexual conversations with other men. See 

as explained above, Walker sought to introduce evidence of W.F.’s sexual history,
rather than “specific instances” indicating that others had induced W.F. to produce
the images that W.F. sent to Walker. Thus, the exclusion of the evidence was not
“arbitrary or disproportionate to the purposes that its exclusion was designed to
serve.” 

court did not violate Walker’s Fifth and Sixth Amendment
rights by excluding the evidence of W.F.’s sexual communications with other men.2

      Second, Walker argues that the district court erred in excluding “fantasy source
material.” Walker maintained at trial that he believed that W.F. was an adult and that
he and W.F. were acting out a fantasy. In support of that argument, he sought to
admit an exhibit containing pages from a website from which Walker found “source
material” for fantasies that he played out in conversations on social media sites like
the one on which he met W.F. The district court determined that the exhibit was not
helpful or probative and that it would be confusing to the jury. The exhibit is a
twelve-page list of categories into which the website grouped fantasy stories.
Although it was not admitted into evidence, Walker was permitted to testify about
this information. He explained that the website he used contained “categories” of
information, including “athletics,” “bestiality,” “celebrity,” and a “cross-generational”
category that “deals with older guys and younger guys.” Walker also testified that the
website is “a huge listing of any possible scenario that you can think of in the erotica
world.” Thus, any error is harmless because the exhibit was cumulative. See

      2
       Walker argues further that W.F.’s testimony opened the door to cross-
examination of specific instances of W.F.’s sexual behavior. During W.F.’s
testimony, the Government asked, “And did you seek attention from these men?”
W.F. answered, “I did.” But in its very next question, the Government focused its
inquiry on Walker by asking, “And did Jayme Walker give you attention?” The
Government’s subsequent questions similarly focused on Walker. Thus, the district
court did not abuse its discretion by continuing to exclude the evidence because the
Government did not make “unfair prejudicial use of related evidence on direct
examination.” See United States v. Durham, 

, 1012 (8th Cir. 1989).


                                          -5-
McWilliams v. United States, 

, 45-46 (8th Cir. 1968) (“[I]n view of the
cumulative nature of the rejected evidence, its denial can hardly be said to have
prejudiced the appellant.”); United States v. Tapio, 

, 1094-95 (8th Cir.
1980) (per curiam) (“The court’s error, if any, in excluding the evidence was
harmless. . . . The excluded testimony was merely cumulative.”).

                                          B.

       Walker next argues that the district court erred in placing a time limit on his
cross-examination of W.F. The district court limited Walker’s cross-examination to
one hour and thirty minutes, four times the length of the Government’s direct
examination. In the past, we have applied competing standards of review. Compare
United States v. Warfield, 

, 1024 (8th Cir. 1996) (“Absent a clear abuse
of discretion and a showing of prejudice, we will not reverse a district court’s ruling
limiting cross-examination of a prosecution witness on the basis that it impermissibly
infringed upon the defendant’s right of confrontation.”) with United States v. Plume,

, 629 (8th Cir. 2017) (“This court reviews evidentiary rulings regarding
the scope of a cross examination for abuse of discretion, but where the Confrontation
Clause is implicated, we consider the matter de novo.” (internal quotation marks
omitted)). The outcome is the same under either standard.

       “A critical factor in determining whether a defendant’s right of confrontation
has been violated is whether the defendant had other ways to obtain the effect that the
excluded examination would have allegedly established.” United States v. Brown,

, 611 (8th Cir. 1997). The district court correctly noted that most of the
cross-examination had been spent cumulatively reading an exhibit containing the
texts between W.F. and Walker that had been admitted into evidence and would be
available to the jury. And it concluded that it was “not efficient to go through a
lengthy 264-page document.” Further, Walker presents no evidence that the time



                                         -6-
limit prejudiced him. See Harrington v. Iowa, 

, 1277 (8th Cir. 1997)
(requiring a defendant to show that “[a] reasonable jury might have received a
significantly different impression of [the witness’] credibility had [defense] counsel
been permitted to pursue his proposed line of cross examination” (alteration in
original)). Thus, we will not reverse the district court’s ruling.

                                          C.

       In addition, Walker argues that the district court abused its discretion by not
instructing the jury that Walker had to know that W.F. was a minor as he claims is
required for a conviction under 18 U.S.C. § 2251(a). “We review a district court’s
formulation of jury instructions for abuse of discretion and consider whether the
instructions correctly state the applicable law.” United States v. Pliego, 

,
942 (8th Cir. 2009) (internal quotation marks omitted). We have previously held that
a “district court did not abuse its discretion in refusing to instruct the jury that
knowledge of the victim’s age is an element of § 2251(a).” 

Thus, the
district court did not abuse its discretion here.3

                                          D.

      Walker further argues that the district court erred in denying his motion for
judgment of acquittal. He contends that there was insufficient evidence to support
his conviction because “all evidence of guilt originated from a platform of fantasy.”


      3
        We have also previously held that the First Amendment’s restriction against
chilling protected speech “does not require a reasonable-mistake-of-age defense to
charges of producing child pornography in violation of section 2251(a).” United
States v. Wilson, 

, 1069 (8th Cir. 2009). We thus reject Walker’s
argument that a mistake-of-age defense should have been included in the jury
instructions here. See 

–44.


                                          -7-
Specifically, Walker claimed in his motion that all of the photographs he received
from W.F. were of a “post-pubescent male” and that it was “impossible” to know,
based on those images, that W.F. was less than the required age.4 He argued that
“there was no link between Defendant and the reality that the victim was in fact a
minor, other than the statements made . . . that from Defendant’s perspective were
fantastical.”

        “We review the sufficiency of the evidence de novo, viewing evidence in the
light most favorable to the government, resolving conflicts in the government’s favor,
and accepting all reasonable inferences that support the verdict.” United States v.
Piwowar, 

, 955 (8th Cir. 2007). “We must uphold the verdict if there
is an interpretation of the evidence that would allow a reasonable-minded jury to find
the defendant guilty beyond a reasonable doubt.” United States v. Wainright, 

, 822 (8th Cir. 2003).

        Walker communicated with W.F. for approximately eight months. W.F.
testified that he told Walker that he was fourteen, and he testified that he did not think
his communications with Walker were based on fantasy. W.F. also sent Walker a
message about working on homework and another about attending the homecoming
dance. Further, Walker’s own messages support the jury’s finding. On one occasion
Walker said, “I can’t lie. It kind of makes me nervous. I’m not one of those
pedophile guys, but you are underage and can get me in trouble.” On a different
occasion, after W.F. asked Walker to send him photographs, Walker replied, “I don’t
think we should that [sic] anymore because of our age difference. I can get in trouble.
Sorry.” And there is no dispute that Walker and W.F. sent each other pornographic
images. This evidence is sufficient for a reasonable jury to conclude that Walker

      4
        While Walker’s § 2251 conviction did not require knowledge of the victim’s
age, his § 1470 conviction did require knowledge that the victim “has not attained the
age of 16 years.” 18 U.S.C. § 1470.


                                           -8-
knew that W.F. was less than sixteen years old. See also Lavender v. Kurn, 

, 653 (1946) (“[W]here, as here, there is an evidentiary basis for the jury’s verdict,
the jury is free to discard or disbelieve whatever facts are inconsistent with its
conclusion.”). Thus, the district court did not err in denying Walker’s motion for
judgment of acquittal.

                                           E.

       Finally, Walker argues that his 264-month sentence constitutes cruel and
unusual punishment in violation of the Eighth Amendment. We review Eighth
Amendment challenges de novo. United States v. Vanhorn, 

, 1169 (8th
Cir. 2014). The Eighth Amendment does not guarantee proportionality between
crime and sentence. See Harmelin v. Michigan, 

, 965 (1991). “[T]his
Court has never held that a sentence within the statutory range violates the Eighth
Amendment.” United States v. Patten, 

, 252 (8th Cir. 2011) (alteration
in original). Walker’s sentence is less than the 360-month statutory maximum for
Walker’s § 2251 conviction. And we have previously rejected an Eighth Amendment
challenge to a 360-month sentence under § 2251. See United States v. Martynenko,
717 F. App’x 645, 646 (8th Cir. 2018) (per curiam) (rejecting an Eighth Amendment
challenge to a sentencing package that included a 360-month sentence for a § 2251(a)
conviction); 

. Likewise, we reject Walker’s claim that his
264-month sentence constitutes cruel and unusual punishment in violation of the
Eighth Amendment.

                                           II.

      For the foregoing reasons, we affirm Walker’s conviction and sentence.




                                          -9-
KELLY, Circuit Judge, concurring.

      I concur in the court’s opinion in all respects but one. I believe that the district
court’s time limitation on Walker’s cross-examination of W.F. violated Walker’s
Sixth Amendment right of confrontation. But because I conclude that the error was
harmless, I agree that the judgment should be affirmed.

                                            I

       We review “evidentiary rulings regarding the scope of a cross[-]examination
for abuse of discretion, but where the Confrontation Clause is implicated, we consider
the matter de novo.” United States v. White Plume, 

, 629 (8th Cir. 2017)
(quoting United States v. Williams, 

, 960 (8th Cir. 2015)).5 The Sixth
Amendment’s Confrontation Clause guarantees that “[i]n all criminal prosecutions,
the accused shall enjoy the right . . . to be confronted with the witnesses against him.”
U.S. Const. amend. VI. “Generally speaking, the Confrontation Clause guarantees
an opportunity for effective cross-examination”; it does not guarantee
“cross-examination that is effective in whatever way, and to whatever extent, the
defense might wish.” Delaware v. Fensterer, 

, 20 (1985). Accordingly,
the right to cross-examination “may, in appropriate cases, bow to accommodate other
legitimate interests in the criminal trial process.” Michigan v. Lucas, 

,
149 (1991) (quoting Rock v. Arkansas, 

, 55 (1987)). “[T]rial judges
retain wide latitude to limit reasonably a criminal defendant’s right to cross-examine
a witness based on concerns about, among other things, harassment, prejudice,



      5
        To the extent we have applied inconsistent standards of review to
Confrontation Clause questions, as the court suggests, it does not affect my view.
Even under an abuse of discretion standard, I would conclude that the district court
erred in limiting Walker’s cross-examination of W.F.


                                          -10-
confusion of the issues, the witness’ safety, or interrogation that is repetitive or only
marginally relevant.” 

       But “[r]estrictions on a criminal defendant’s rights to confront adverse
witnesses and to present evidence ‘may not be arbitrary or disproportionate to the
purposes they are designed to serve.’” 

(quoting 

); see
also United States v. Bear Stops, 

, 454–57 (8th Cir. 1993) (reversing
conviction where exclusion of testimony was disproportionate to the interests that
exclusion sought to serve). Accordingly, we must balance the importance of the
excluded evidence to Walker’s defense against the interests articulated by the district
court to determine if the restriction was reasonable. See Boysiewick v. Schriro, 

, 620 (8th Cir. 1999); see also Olden v. Kentucky, 

, 232 (1988)
(balancing relevance and importance of impeachment evidence against “[s]peculation
as to the effect of jurors’ racial biases” to conclude that trial court’s limitation on
cross-examination was “beyond reason”).

       In my view, the district court’s time limitation on Walker’s cross-examination
of W.F. was both arbitrary and disproportionate to the purpose it was designed to
serve. On this record, the restriction was arbitrary because there was no reasonable
explanation for it. Cf. United States v. Bordeaux, 

, 558 (8th Cir. 2005)
(explaining that a district court’s exclusion of evidence was not “arbitrary because
there exists a reasonable explanation for it—the prevention of harassment or
embarrassment of [the witness]”). There was no claim that W.F. would have been
harassed had Walker’s counsel been permitted to continue his proposed cross-
examination. Nor was there a claim that the testimony that defense counsel sought
to elicit would be unduly prejudicial or confuse the issues. Finally, there was no
claim that the contents of the cross-examination were only “marginally relevant.” To
the contrary, as Walker argued before the district court and reiterates on appeal, his
primary defense—that he believed W.F. was an adult and that they were merely



                                          -11-
acting out a fantasy—largely depended on his ability to demonstrate to the jury the
lengthy history and full nature of his communications with W.F.

       Rather, the sole interest that the district court articulated was in “efficiency.”
It determined that Walker’s right to cross-examination should be abridged because
his method of presenting his defense was “not efficient,” and because continued
discussion about the messages that Walker exchanged with W.F. was “very
cumulative” and would purportedly contravene “[t]he typical rule of thumb . . . that
cross is not to exceed the time allotted for direct.” As a general proposition,
efficiency is a legitimate interest of the criminal trial process. And preventing undue
delay and curtailing testimony that is unnecessarily lengthy can serve that interest.
But under the facts of this case, there was no efficiency to be gained. Walker sought,
at most, a total of two hours and ten minutes for cross-examining W.F.—the
government’s key witness—and there is no indication that the trial would have been
unnecessarily lengthened had the district court permitted Walker’s desired
cross-examination. See Holley v. Yarborough, 

, 1100 (9th Cir. 2009)
(concluding that excluding testimony based in part on time constraints was
unreasonable because it was unlikely that admitting the testimony “would have
significantly lengthened the trial”). Moreover, it cannot be that a defendant’s Sixth
Amendment right to cross-examine the principal witness against him should be
curtailed based on the prosecution’s strategic decision regarding the length of its
direct examination. Under the particular circumstances of this case, I believe that the
restriction based on time constraints was arbitrary.

      The district court’s time restriction on W.F.’s cross-examination was also
disproportionate to the interest that it allegedly served. It is critical here that W.F.
was the “central, indeed crucial,” witness in the prosecution’s case. 

. And it is likewise critical that the length and mode of cross-examining W.F.
was part and parcel of Walker’s defense. Because the government focused on only



                                          -12-
a handful of text messages to show that Walker knew W.F. was a minor, Walker
sought to highlight the entirety of his messaging with W.F. to attempt to show that
the communications were “role-play fantasy and also to discount the claim of
exploitation.” Moreover, by cross-examining W.F. about all the messages, Walker
sought, in part, to “attempt[] to familiarize the jury with what for them was a bizarre
existence.” To that end, the fact that the cross-examination of W.F. seemed “very
cumulative,” as the district court concluded, was precisely the point. “[I]t was this
accumulation of history,” as Walker explains, “that established the texture of
Walker’s defense that he was living a fantasy.” In light of how important it was for
Walker to cross-examine W.F. regarding the full messaging history and the very weak
interest in efficiency in this case, the district court’s time restriction was dispropor-
tionate to the purpose it was designed to serve. Cf. 

(concluding that exclusion was not disproportionate “[i]n light of the minimal
probative value of the evidence and the important purpose of the exclusion”—the
prevention of witness harassment). In short, I believe that the time limitation on
Walker’s cross-examination of W.F. violated Walker’s Sixth Amendment right of
confrontation.

                                           II

      “All errors of constitutional dimension do not automatically call for reversal,”
however. United States v. Jacobs, 

, 283 (8th Cir. 1996). Confrontation
Clause errors are subject to harmless-error review. See Delaware v. Van Arsdall, 

, 684 (1986). This inquiry requires us to “assum[e] that the damaging
potential of the cross-examination [was] fully realized,” and determine if we “might
nonetheless say that the error was harmless beyond a reasonable doubt.” Id.; see also
United States v. Caldwell, 

, 525 (8th Cir. 1996). Harmlessness is
determined “in the context of the trial as a whole,” 

, and we
consider “the importance of the witness’ testimony in the prosecution’s case, whether



                                          -13-
the testimony was cumulative, the presence or absence of evidence corroborating or
contradicting the testimony of the witness on material points, the extent of
cross-examination otherwise permitted, and, of course, the overall strength of the
prosecution’s case.” Van 

.

       As a practical matter, the harmless-error inquiry in this case presents some
analytical difficulty. Generally speaking, in the Van Arsdall line of cases, courts
review for harmless error a district court’s limitation on cross-examination intended
to impeach a witness’s credibility. See, e.g., United States v. Love, 

,
985–86 (8th Cir. 2003); 

–25. In such circumstances, courts
often “disregard” the entirety of the testimony that defense counsel was not permitted
to impeach to determine if the Confrontation Clause error was harmless. See, e.g.,

(concluding that error was not harmless in part because if the
witness’s testimony was disregarded, “the government [was] left with less than
overwhelming evidence of [defendant]’s guilt”); 

(conclud-
ing that Confrontation Clause violation was harmless because, “even if we entirely
disregard [the witness’s] testimony, the government’s case against [the defendant] . . .
was strong”).

        In this case, Walker’s proposed cross-examination did not seek to attack W.F.’s
credibility per se, so this traditional harmless-error analysis is an imperfect fit. And
if we do not disregard W.F.’s testimony as would be required by this analysis, it is
difficult, as a conceptual matter, to “assum[e] that the damaging potential of the
cross-examination [was] fully realized.” Van 

. Nevertheless,
guided by the Van Arsdall factors—especially “the presence or absence of evidence
corroborating or contradicting the testimony of the witness on material points, the
extent of cross-examination otherwise permitted, and . . . the overall strength of the
prosecution’s case”—I conclude that the district court’s error was harmless. Walker
testified about his belief that he was acting out a fantasy and discussed the contents



                                         -14-
of a website containing “source material” for fantasies that he played out with others.
Moreover, albeit in a more limited fashion, Walker was ultimately permitted to cross-
examine W.F. about many of the messages he exchanged with Walker, especially
those that W.F. initiated. Finally, and perhaps most fundamentally, the government’s
case against Walker was strong. The jury was presented with Walker’s own
statements that W.F. was “underage and [could] get [him] in trouble,” and with
evidence that Walker asked W.F. to send him pornographic images. See 

(defendant’s own inculpatory statements contributed to strength of
government’s case, precluding reversal on harmless-error review); see 

Part
I.D (finding that evidence was sufficient to convict Walker). As such, although I am
troubled by the Sixth Amendment violation that occurred in this case, I am ultimately
persuaded that the error was harmless and agree that the judgment of the district court
should be affirmed. I thus concur in the court’s opinion except for Part I.B.
                        ______________________________




                                         -15-