author: BENTON, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee v. Damien MORGAN, Defendant-Appellant
    No. 16-1525
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 23, 2016
    Filed: December 1, 2016

      Counsel who presented argument on behalf of the appellant was Michael J. Gorla, of Saint Louis, MO. The following attorney(s) appeared on the appellant brief; Michael J. Gorla, of Saint Louis, MO.
    Counsel who presented argument on behalf of the appellee was Erin Granger, AUSA, of Saint Louis, MO. The following attomey(s) appeared on the appellee brief; Erin Granger, AUSA, of Saint Louis, MO,
    Before LOKEN, GRUENDER, and BENTON, Circuit Judges.
   BENTON, Circuit Judge.

Damien Morgan pled guilty to oné count of production of child pornography in violation of 18 U.S.C. § 2251(a) and one count of attempted production in violation of 18 U.S.C. § 2251(a) and (e). He reserved the right to appeal the denial of a motion to suppress. Morgan now appeals the motion and two base-offense-level enhancements to his guidelines range. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

On August 4, 2013, an officer discovered that a computer offered child pornography by peer-to-peer file sharing. That day, police identified the computer’s IP address. Twenty-four days later, police determined that the IP address was assigned to Morgan. Over seven weeks later, a state judge issued a search warrant for his home—75 days after the IP address was identified and 51 days after investigators associated the IP address with Morgan.

Five days later, police executed the warrant at Morgan’s home. They also arrested him on a warrant for an unrelated no-fare-transit violation.

The arresting officer seized a cell phone from Morgan and, while handcuffing him, noticed a tattoo on his wrist. At the station, Morgan requested his cell phone to tell his employer and sister where he was. Police gave him the cell phone, under police supervision. As Morgan scrolled through his contacts, he did not object as a detective watched his screen. According to the detective^ Morgan spontaneously shared facts about the contacts. The detective wrote down some names and numbers.

While Morgan was in custody, a different detective found original images of child pornography on a computer from his home. One image showed a man with a tattooed arm touching a female child’s genitalia. The detective who found the images asked Morgan to lift the sleeve of his shirt so that he could photograph his tattoo. Morgan agreed, lifting his sleeve and allowing photographs without objection. Morgan’s tattoos matched the tattoos in the photographs from his computer.

Police later identified the child in the computer images. Morgan’s public Face-book profile led to the profile of a woman who a detective recalled was one of Morgan’s cell-phone contacts. Her public profile showed a daughter resembling the child pictured.

The district court denied Morgan’s motion to suppress all evidence seized from his home as well as physical evidence seized from his person or possession. Following a conditional guilty plea, the court sentenced him to 860 months, based on a guidelines range including enhancements of: (1) four levels for images depicting sadistic conduct and (2) five levels for a pattern of activity.

II.

This court reviews a district court’s factual findings for clear error and its legal conclusions de novo. United States v. Burston, 806 F.3d 1123, 1126 (8th Cir. 2015). The denial of a motion to suppress is affirmed unless this court “find[s] that the decision is unsupported by the evidence, based on an erroneous view of the law, or the Court is left with a firm conviction that a mistake has been made.” United States v. Riley, 684 F.3d 758, 762 (8th Cir. 2012) (internal quotation marks omitted).

A.

A search warrant requires probable cause, “a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before” the judge, “there is a fair probability that ... evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). This court determines only whether the issuing judge “had a substantial basis [to conclude] that probable cause existed.” Id. at 238-39, 103 S.Ct. 2317 (internal quotation marks omitted).

Morgan argues that the information in the search warrant was stale, and thus the warrant lacked probable cause, because police did not apply for the warrant until 75 days after identifying his IP address and 51 days after associating it with him.

Periods much longer than 75 or 51 days have not rendered information stale in computer-based child-pornography cases. See, e.g., United States v. Estey, 595 F.3d 836, 840 (8th Cir. 2010) (holding that a five-month delay did not render information stale). The affidavit in support of the search warrant attested that collectors of child pornography tend to retain images and that computer programs that download these images “often leave[ ] files, logs or file remnants which would tend to show the exchange, transfer, distribution, possession or origin of the files.” See United States v. Horn, 187 F.3d 781, 786 (8th Cir. 1999) (“The timeliness of the information supplied in an affidavit depends on the circumstances of the case, including the nature of the crime under investigation; the lapse of time is least important when the suspected criminal activity is continuing in nature and when the property is not likely to be destroyed or dissipated.”). The affidavit established a fair probability of finding evidence on Morgan’s computers.

B.

A Fourth Amendment search occurs “when the government violates a subjective expectation of privacy that society recognizes as reasonable.” Kyllo v. United States, 533 U.S. 27, 33, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). In contrast, whatever “a person knowingly exposes to the public ... is not a subject of Fourth Amendment protection.” Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

Morgan had no reasonable expectation of privacy when he voluntarily displayed his cell-phone screen in the presence of the detectives. Morgan had his phone because he asked for it. He did not object when the detective observed his activities. And—according to the detective’s uncontested testimony—Morgan spontaneously shared information about his contacts with the detective. This is unlike officers looking on their own through the contents of a cell phone. See Riley v. California, — U.S.-, 134 S.Ct. 2473, 2480-82, 189 L.Ed.2d 430 (2014). Instead, it is “an officer’s mere observation of an item left in plain view,” which “generally involves no Fourth Amendment search.” Texas v. Brown, 460 U.S. 730, 738 n.4, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983). See Kyllo, 533 U.S. at 32, 121 S.Ct. 2038 (recognizing the Court’s continued holding that “visual observation is no ‘search’ at all”).

Morgan believes that the plain-view doctrine applies only if: (1) the officer is in a lawful position to view the evidence, (2) the officer discovers the incriminating evidence inadvertently, and (3) the incriminating nature of the evidence is immediately apparent. Morgan contends the last two conditions are not satisfied..This.contention conflates the plain-view doctrine for seizures with the plain-view doctrine for searches. An officer does not violate the Fourth Amendment by viewing evidence from a position he lawfully occupies, remembering it, and using it later. Observing what is in plain sight does not implicate the additional requirements for a seizure; being.in a lawful position to observe evidence is sufficient. Brown, 460 U.S. at 738 n.4,103 S.Ct. 1535.

Morgan had no reasonable expectation of privacy in his cell-phone screen once he made it visible to the public by displaying it in the presence of a detective.

C.

A warrantless search, generally unreasonable, is “valid if conducted pursuant to the knowing and voluntary consent of the person subject to a search.” United States v. Sanders, 424 F.3d 768, 773 (8th Cir. 2005). Whether consent is voluntary is a factual question, reviewed for clear error. Id.; Pace v. City of Des Moines, 201 F.3d 1050, 1053 (8th Cir. 2000).

The magistrate judge found that a detective “asked [Morgan] to move his shirt sleeve so that [the detective] could take a photograph of [his] tattooed arm. [Morgan] agreed to do so.” To agree is “to indicate willingness : consent.” Agree, Webster’s Third New International Dictionary 43 (2002). The magistrate judge found that Morgan consented to the photographs of his tattoo. The district court adopted that finding and found “no evidence that [he] was coerced.” Nothing indicates these findings are clearly erroneous. The district court correctly denied the motion to suppress the photographs of Morgan’s tattoos.

III.

Findings of fact about sentencing enhancements are reviewed for clear error; interpretations of the guidelines are reviewed de novo. United States v. Ault, 598 F.3d 1039, 1040 (8th Cir. 2010).

A.

Guideline ' § 2G2.1(b)(4) authorizes a four-level increase to the base offense “[i]f the offense involved material that portrays .., sadistic or masochistic conduct or other depictions of violence.” The term “sadistic” is not defined in the guidelines, but has been addressed by this court several times.

If an image depicts actual or attempted penetration, it is per se sadistic. United States v. Belflower, 390 F.3d 560, 562 (8th Cir. 2004). An image need not show actual or attempted penetration to portray sadistic material. See United States v. Parker, 267 F.3d 839, 847 (8th Cir. 2001). Conduct that is “sufficiently painful, coercive, abusive, and degrading” may also be sadistic. Id.

The images at issue show Morgan’s fingers placed on the inside of the child’s labia, spreading them to expose her genitalia. At sentencing, the district court found that these images depicted “a form of penetration” because “[t]his was not a situation where the Defendant was touching, her externally.” This factual determination is not clearly erroneous. The district properly applied the four-level enhancement.

B.

Guideline § 4B1.5(b) authorizes a five-level enhancement if (1) “the defendant’s instant offense of conviction is a covered sex crime” and, as relevant here, (2) “the defendant engaged in a pattern of activity involving prohibited sexual conduct.”

Morgan objects to this enhancement, claiming his attempted production of child pornography is not “prohibited sexual conduct,” thus precluding a pattern of activity. He reaches this view by'comparing the definitions of “covered sex crime” and “prohibited sexual conduct.” According to Morgan, “prohibited sexual conduct” includes production of child pornography but not attempted production, which thus cannot be a second offense required for a pattern of activity.

Application Note 2 defines “covered sex crime” as:

(A) an offense, perpetrated against a minor, under (i) chapter 109A of title 18, United States Code; (ii) chapter 110 of such title, not including trafficking in, receipt of, or possession of, child pornography, or a recordkeeping offense; (iii) chapter 117 of such title, not including transmitting information about a minor or filing a factual statement about an alien individual; or (iv) 18 U.S.C. § 1591; or
(B) an attempt or a conspiracy to commit any offense described in subdivisions (A)(i) through (iv) of this note.

Application Note 4(A) defines “prohibited sexual conduct” as:

(i) any offense described in 18 U.S.C. § 2426(b)(1)(A) or (B); (ii) the production of child pornography; or (iii) trafficking in child pornography only if, prior to the commission of the instant offense of conviction, the defendant sustained a felony conviction for that trafficking in child pornography. It does not include receipt or possession of child pornography.

Morgan argues that subsection (B) of Note 2, by explicitly including attempt, means-that the statutes in subsection (A) do not include attempted production of child pornography. By his logic, because “prohibited sexual conduct” does not mention1 “attempted” production, attempt is not included in prohibited sexual conduct. Morgan argues that, at least, the definitions are ambiguous whether attempted production of child pornography is prohibited sexual conduct. He invokes the rule of lenity to void the enhancement.

The rule' of lenity will “resolve ambiguity in favor of the defendant only at the end of the process of construing what Congress has expressed when the ordinary canons of statutory construction have revealed no satisfactory construction.” Lockhart v. United States, — U.S,-, 136 S.Ct. 958, 968, 194 L.Ed.2d 48 (2016) (internal quotation marks omitted). An arguable alternative construction “cannot automatically trigger the rule of lenity.” Id.

Here, there is a satisfactory construction: Both definitions—explicitly in the first definition and in the second by referencing 18 U.S.C. § 2426(b)(1)(A)—incorpo-rate chapter 110 of title 18, which includes attempted production of child pornography. This plain reading of the text is the more natural interpretation. See United States v. Broxmeyer, 699 F.3d 265, 285 (2d Cir. 2012). No ambiguity triggers the rule of lenity. The district court correctly ruled that “attempted production of child pornography is a crime under chapter 110 of title 18,” and thus properly applied the five-level enhancement.

* * * * * * *

The judgment is affirmed.

      . The Honorable Carol E. Jackson, United States District Judge for the Eastern District of Missouri.


source: Caselaw Access Project

author: MURPHY, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Charles James JONES, Defendant-Appellant.
    No. 15-3647
    United States Court of Appeals, Eighth Circuit.
    Submitted: October 20, 2016
    Filed: December 2, 2016

      Counsel who presented argument on behalf of the appellant was Shannon Elkins, AFPD, of Minneapolis, MN.
    Counsel who presented argument on behalf of the appellee was David Genrich, AUSA, of Minneapolis, MN.
    Before MURPHY, GRUENDER, and SHEPHERD, Circuit Judges.
   MURPHY, Circuit Judge.

Shalonda Clark and defendant Charles Jones lived together on the White Earth Indian Reservation. Their house burned down while they were both intoxicated and Clark died. Jones was thereafter convicted by a jury of second degree- murder. The district court sentenced him to 824 months imprisonment. Jones now appeals the district court’s exclusion of expert testimony and photographs, the admission of several statements^ he made to police officers, and the application of a vulnerable victim sentencing enhancement. We affirm.

I.

Shalonda Clark and Charles Jones had a history of domestic violence and were addicted to methamphetamine. Eventually they were reduced to living in their living room with an electric stove for heat. In December 2013 Jones acquired a bottle of butalbital, a migraine drug for which he had no prescription. After he and Clark took a large number of these pills, a fire started in the housé they shared' and spread rapidly. Clark died on the living room couch.

After the fire had started, Jones walked to the nearby home of the Sip family from where a family member called the police. When an officer responded, he was invited inside the Sip house where he found Jones in the living room. He asked Jones how the fire had started and where Clark was at the time. Jones told the officer that Clark had been sleeping on the couch and that he had thrown a burning blanket over her. He explained that he was “sick of the shit she put me through” and that she had “been nothing but cruel to me.” Jones then walked into the kitchen and triéd to stab himself. -Two officers were able to stop him and put him in handcuffs. While he was led to their police car Jones told them, “You finally fucking got me.” When an officer asked him what he meant, Jones responded, “That’s all you’re getting. I hope I get the max.”

The next day officers tried to question Jones after, reading him his Miranda rights. They told him that Clark was dead and they needed to talk. Jones responded that he had nothing to say and that he wanted to end the interview. Nevertheless, he went on to volunteer that “she’s a wicked bitch and that’s it.” Jones later unsuccessfully moved to suppress these statements after he had been charged with second degree murder.

Fire investigator R. Paul Bieber appeared at trial as an expert witness for Jones, Bieber’s initial disclosure had stated that he would testify about the area where the fire started, whether it had been intentionally lit, and whether the government expert’s investigation had been influenced by cognitive bias. After the- government moved to exclude Bieber’s testimony, the defense submitted two amended and more detailed disclosures. The district court decided to admit Bieber’s testimony about the- origin and cause of the fire, but not about the potential cognitive bias of the government’s expert which had not been mentioned in either of Bieber’s amended disclosures. Jones was convicted of second degree murder and was sentenced to 824 months imprisonment after the district court applied a vulnerable victim enhancement. Jones appeals.

Jones argues that the district court committed reversible error by strictly limiting Beiber’s testimony to the opinions he had provided in his final expert disclosure under Federal Rule of Criminal Procedure 16(b)(1)(C). The parties dispute the standard of review. The government argues that since Jones had not provided an offer of proof for Bieber’s excluded testimony, that exclusion cannot be reviewed or at least only for plain-error.

The record shows, however, that Jones did make an offer of proof on Bieber’s excluded testimony and thus preserved the issue for appellate ’ review. Jones argues that we should review de novo the exclusion of his expert- testimony because it denied him the right to present a defense. Our longstanding precedent makes clear, however, that the standard is abuse of discretion. See United States v. Coutentos, 651 F.3d 809, 820 (8th Cir. 2011). Rule 16(b)(1)(C) required Jones to disclose a written summary of the testimony Bieber intended to offer, describing Bieber’s “opinions, the bases and reasons for those opinions, and [his] qualifications.” Fed. R. Crim. P. 16(b)(1)(C). If a party fails to make an adequate expert disclosure, the district court may “prohibit that party from introducing the undisclosed evidence.” Fed. R. Crim. P. 16(d)(2).

Bieber provided his first expert disclosure to the government on February 13, 2015. In that disclosure, Bieber stated that he would testify about what caused the fire, where it originated, whether it had been started intentionally, and “the presence and influence of domain-irrelevant information”' such as cognitive bias which might have affected the government expert’s investigation. After the government moved to preclude Bieber’s testimony, he provided an amended disclosure on February 24, which was the day before the pretrial conference, In that disclosure, Bie-ber stated that he planned to testify that the cause and specific origin of the fire could not be determined scientifically and that any “conclusions as to the intentional or accidental nature of the fire are not based on an examination or analysis of physical, fire-scene evidence, nor are they based on scientific, engineering or technical expertise.”

After the trial began on March 2, the district court announced that it would only allow Bieber to testify to the opinions outlined in his amended disclosure if he were to provide more detail about the reasons underlying those opinions. After Bieber’s second amended’ disclosure was submitted on March 4, he was able to testify to his opinions about the origin and cause of the fire, but not about alleged deficiencies in the government expert’s investigation, cognitive bias, or other possible causes of the fire. Jones argues on appeal that the district court committed reversible error by excluding these areas from the expert’s testimony.

We conclude that the district court did not abuse its discretion by excluding Bie-ber’s proposed testimony about deficiencies in the government expert’s investigation and his cognitive bias. As the court pointed out, Bieber’s abbreviated description of these issues had not disclosed the reasons for his opinions as required by Rule 16(b)(1)(C). The defense then chose not to supplement his disclosures. The court did not abuse its discretion by excluding this expert testimony which had not been properly disclosed. See United States v. Holmes, 670 F.3d 586, 599 (4th Cir. 2012). Nor did the district court abuse its discretion by excluding Bieber’s proposed testimony about other possible causes of the fire. Bieber stated that he had intended to testify that it was impossible to identify the specific cause and origin of the fire. Because of his limited disclosures the district court did not abuse its discretion by limiting his testimony, see Holmes, 670 F.3d at 599, or prohibiting the introduction of photographs about alternate possible causes of the fire. See United States v. Thetford, 806 F.3d 442, 446 (8th Cir. 2015) (standard of review).

III.

Jones argues that the district court should have suppressed three statements he made to police officers. On an appeal ■ from the denial of a motion to suppress, factual findings are reviewed for clear error and legal conclusions de novo. United States v. Allen, 713 F.3d 382, 386 (8th Cir. 2013). The Fifth Amendment requires suspects to be informed of their Miranda, rights before any custodial interrogation. United States v. Sanchez, 676 F.3d 627, 630 (8th Cir. 2012). Interrogation, for Miranda purposes, means “express questioning” and “words or conduct that officers should know [are] ‘reasonably likely to elicit an incriminating response from the suspect.’ ” United States v. Briones, 390 F.3d 610, 612 (8th Cir. 2004) (quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980)). If officers fail to inform a suspect of his rights, “any statement gained from the violation” is generally inadmissible during the government’s case in chief. Sanchez, 676 F.3d at 630.

Jones first challenges the district court’s decision not to suppress his initial statements to investigator Luke Sweere while his house was burning and Clark’s body had not yet been discovered. When Sweere. responded to the fire, witnesses told him that Jones was at the Sip house. Sweere went there, a resident invited him in, and he found Jones sitting on the living room couch. Jones was covered in soot and his hair was singed. He smelled of smoke and was dressed in clothes that appeared to be burned. Sweere asked where Clark was, and Jones answered that she was on the couch. When asked how the fire had started, Jones stated that “I started it.” Sweere then asked him how and why he had started the fire, whether he and Clark had been using drugs, whether Clark had been awake when the fire started, and what she had done that day. Sweere noticed that Jones appeared to be under the influence of drugs, and Jones confirmed that. Nonetheless, Jones appeared alert, and he answered questions coherently.

The district court did not err in admitting Jones’ statements. Most of them were admissible under the public safety exception to the Miranda rule. That exception permits a suspect’s answer to a question to be admitted into evidence even if he had not first been informed of his Miranda rights so long as the purpose of the officer’s question was to ensure public safety, not merely to elicit evidence. United States v. Everman, 528 F.3d 570, 572 (8th Cir. 2008). An objective standard is used to decide whether an officer’s question was meant to aid public safety. Id. In the situation here, most of Sweere’s questions served two public safety purposes. Clark was still missing when Sweere asked about where she was, and the fire was still burning when Sweere asked Jones how it started. These were public safety concerns, and the questions were “not designed solely to solicit testimonial evidence.” Id. Thus, the responses by Jones were admissible. See id. Moreover, any error in the admission of the remaining statements would have been harmless. For example, when Sweere asked why Jones had started the fire, he replied that Clark had been “nothing but cruel” to him. Given the extent of the trial evidence, it is clear beyond a reasonable doubt that this remark would not have had a significant influence on the jury’s verdict. Any error in its admission was' therefore harmless. See United States v. Farlee, 757 F.3d 810, 820 (8th Cir. 2014).

Jones next argues that all of his statements should have been suppressed because at the time he made them he had been intoxicated by a prescription drug. Intoxication does “not automatically render a confession involuntary; rather, the test is whether th[is] mental impairment[ ] caused the defendant’s will to be overborne.” United States v. Casal, 915 F.2d 1225, 1229 (8th Cir. 1990)) The district court found that even though Jones had been intoxicated, his will had not been overborne and his statements were voluntary. In the audio recording of his interview with Sweere, Jones spoke slowly and appeared to answer some questions unresponsively, but officers testified that he had been coherent during his confession. Given this record, we cannot say that the district court clearly erred in determining that his “will was ... not overborne.”

Jones also argues that the district court should have suppressed statements he made after being handcuffed. Jones told investigator Daniel Skoog, “You finally fucking got me.” When Skoog asked him what he meant, Jones responded, “That’s all you’re getting. I hope I get the max.” Jones’ first statement was not made in response -to an officer’s question and was admissible. See United States v. Chipps, 410 F.3d 438, 445 (8th Cir. 2005). Jones’ second statement also was admissible because “[a]n officer’s request for clarification of a spontaneous statement” does generally not amount to interrogation. Id.

Jones finally argues that the district court should have suppressed a commént that he later made in jail after invoking his right to remain silent. Officers must stop questioning if a suspect clearly and consistently expresses a desire to remain silent. See United States v. Ferrer-Montoya, 483 F.3d 565, 569 (8th Cir. 2007) (per curiam). When special agent Daniel Baumann tried to question Jones in a jail interview room the day after the fire, Bau-mann read Jones his Miranda rights. Jones replied, “I ain’t got shit to say to you, okay?” Baumann explained that he wanted to talk because Clark was dead and Jones had made incriminating statements during the fire. Jones responded that he did not know why he had made those statements. Baumann then told Jones he would send him back to his cell if he did not want to talk. Jones replied that was what he wanted, and Baumann said, “Okay.” Then, Jones added, “She’s a wicked bitch and that’s it.”

Jones was clearly in custody at the time of that last statement so the only question is whether it was spontaneous or the product of unlawful interrogation. The district court found that it had been unprovoked and that Baumann had not violated Jones’ rights because he stopped his questioning as soon as the latter clearly said that he wanted to end the interview. We conclude that the district court did not clearly err in determining that Jones’ final statement was spontaneous and unprovoked. Bau-mann had made clear that the interview was over and did not ask any question to elicit the statement which was not the product of interrogation. The district court did not err in admitting it.

IV.

At sentencing, the district court found Clark was a vulnerable victim and added two levels to Jones’ guideline offense level. The enhancement'for a vulnerable victim is appropriate if “the defendant knew or should have known” that he was a vulnerable victim. U.S.S.G. § 3Al.l(b)(l). A victim may be vulnerable because of “age, physical or mental condition,” or he is “otherwise particularly susceptible to the criminal, conduct.” U.S.S.G. § 3A1.1 cmt. n.2. We review the district court’s interpretation of the guidelines de novo and its factual findings for clear error. United States v. Betone, 636 F.3d 384, 388 (8th Cir. 2011).

Jones argues that the enhancement should not apply because the district court should not have admitted or considered his intoxicated statements, should have heard additional, testimony from Bieber, and should have realized that he was too intoxicated to know that Clark was vulnerable. We conclude that the district court did not err in applying the enhancement. The court heard evidence showing that Clark had been asleep when the fire started and that Jones would have known that she was impaired because he had supplied her with drugs. Based on Jones’ later interactions with police officers, it was not clear error for the district court to find that he was coherent enough to know that Clark had been vulnerable , because of her mental condition.

V.

For these reasons we affirm the judgment of the district court.

      . The Honorable Susan Richard Nelson, United States District Judge for the District of Minnesota,

      . Jones argues for the first time in his reply brief that there had been no need to disclose testimony before it was offered to rebut that of the government’s expert. We generally "do not consider arguments raised for the first time in a reply brief,” United States v. Picardi, 739 F.3d 1118, 1123 n.3 (8th Cir. 2014), and we decline to do so here.

      . The Honorable Donovan W. Frank, United States District Judge for the District of Minnesota.


author: KELLY, Circuit Judge.

text:
    Eduardo Paul CUSTODIO, Petitioner-Appellant, v. Cecilia Marianela Torres SAMILLAN, Respondent-Appellee.
    No. 16-1268
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 21, 2016
    Filed: December 2, 2016

      Counsel who presented argument on behalf of the appellant was Gregory J. Mina-na, of Saint Louis, MO. The following attorney(s) appeared on the appellant brief; Gregory J. Minana, of Saint Louis, MO., Sandra Si Yun Oh, of Saint Louis, MO.
    Counsel who presented argument on behalf of the appellee was Kelley Farrell, of Saint Louis, MO. The following attorney(s) appeared on the appellee brief; - Kelley Farrell, of Saint Louis, MO., Aaron Sanders, of Saint Louis, MO.
    Before WOLLMAN, ARNOLD, and KELLY, Circuit Judges.
   KELLY, Circuit Judge.

Eduardo Paul Custodio and Cecilia Ma-rianela Torres Samillan (Torres) are the parents of two sons, M. and G., who were born and resided in Peru until Torres removed them to the United States in 2014. Custodio now seeks M. and G.’s return to Peru under the Hague Convention on Civil Aspects of International Child Abduction (Hague Convention), Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89—to which Peru and the United States are parties— and its implementing statute the International Child Abduction Remedies Act (ICARA), 22 U.S.C. §§ 9001-11. The. district court denied Custodio’s petition and we now affirm.

Background

Custodio and Torres, both Peruvian citizens, were married for two years, separating in May 2004. Their union resulted in two children, 16-year-old M. and 15-year-old G. The couple subsequently divorced, and the Peruvian court issued a custody order pursuant to which the children lived with their mother for the majority of the year.

In November 2013, Torres sought permission from the Peruvian court to travel from Peru to St. Louis with M. and G. for medical treatment on M.’s eye and vacation for G. Without opposition from Custo-dio, the Peruvian court authorized M. and G.’s travel to St. Louis, requiring that they return by March 24, 2014. Torres and the children arrived in St. Louis in February 2014. Shortly thereafter, Torres married an'American citizen, and the couple have since had a son.

Torres failed to return the children to Peru by the deadline. The Peruviah court denied Torres’ application to extend the travel authorization, and the denial was affirmed on appeal. Custodio filed several requests seeking return of the children, and since April 2015, the Peruvian court has issued four orders compelling Torres to return M. and G. to Peru. M. and G. have not returned to Peru and currently reside with Torres, her husband, and their baby brother in the St. Louis area.

The Hague Convention entitles a person whose child has wrongfully been removed to or retained in the United States to secure the prompt return of the child to the child’s country of habitual residence, unless the respondent can establish that an • affirmative defense applies. See Rydder v. Rydder, 49 F.3d 369, 372 (8th Cir. 1995). On July 28, 2015, Custodio filed a petition in district court seeking return of the children under the Hague Convention and ICARA. The district court held a three-day evidentiary hearing, at which Torres appeared pro se. M. and G. testified both in chambers and in open court. On December 29, 2015, the district court denied the petition. The court assumed that Custodio had established a prima fa-cie case for return of the children under the Hague Convention, but refused to order return because Torres established the mature child affirmative defense. Custodio timely appealed.

Discussion

The court addresses three issues on appeal. First, Torres argues the appeal is moot as to M. because he has now reached 16 years old and the Hague Convention no longer applies to him. Second, Custodio argues the district court erred in finding that Torres established the mature child defense. Third, even if the mature child defense applies, Custodio contends the district court abused its discretion in refusing to order return.

I. Mootness

The. Hague Convention states it “shall cease to apply when the child attains the age of 16 years.” Hague Convention art. 4. M. .turned 16 on March 26, 2016. Toires thus argues that the appeal is moot as to M. because by its terms the Convention no longer applies. Custodio argues that such an interpretation would incentivize courts and litigants to delay litigation for older children arid reads thé Convention only to require that the child be under age 16 at the time of the abduction.

The State Department’s interpretation of the Convention’s age limitation provision is in accord with Torres’. In its view, “[t]he Convention applies only to children under the age of sixteen (16). Evenif a child is under sixteen at the time of the wrongful removal or retention as well as when the Convention is invoked, the Convention ceases to apply when the child reaches sixteen.” U.S. Dep’t of State, Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed. Reg. 10,494, 10,604 (Mar, 26, 1986). “It is well settled that the Executive Branch’s interpretation of a treaty ⅛ entitled to great weight.’ ” Abbott v. Abbott, 560 U.S. 1, 15, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010) (quoting Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 185, 102 S.Ct. 2374, 72 L.Ed.2d 765 (1982) (deferring to the State Department’s interpretation of a provision of the Hague Convention)). Cus-todio provides no reason to doubt that deference to the State Department’s interpretation of the age cutoff is appropriate here.

The State Department’s interpretation is supported by the official Hague Conference Explanatory Report, which is recognized “as the official history and commentary on the Convention and is a source of background on the meaning of the provisions of the Convention.” Barzilay v. Barzilay (Barzilay II), 600 F.3d 912, 916 n.6 (8th Cir. 2010) (quotation omitted). The Explanatory Report is plain that “no action or decision based upon the Convention’s provisions can be taken with regard to a child after its sixteenth birthday.” Elisa Pérez-Vera, Explanatory Report: Hague Convention on Private International Law ¶ 77 (1981), https://assets.hcch.neV upload/expl28.pdf.

Because M. turned 16 during the pen-dency of these proceedings, the Hague Convention no longer applies to him. The court dismisses as moot the appeal as to M. We address Custodio’s remaining arguments solely as they apply to G.

II. Mature Child Defense

“The principal objectives of the Convention are ‘to secure the prompt return of children wrongfully -removed to or retained in any Contracting State’ and ‘to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.’ ” Barzilay v. Barzilay (Barzilay I), 536 F.3d 844, 846 (8th Cir. 2008) (quoting Hague Convention art. 1). To establish a prima facie case for return of the child under the Convention, the petitioner must show, by a preponderance of the evidence, that: (1) immediately prior to removal or retention, the child habitually resided in another Contracting State; (2) the removal or retention was in breach of the petitioner’s custody rights under that State’s law; and (3) the petitioner was exercising those custody rights at the time of the removal or wrongful retention. Hague Convention art. 3; Barzilay I, 536 F.3d at 847; see 22 U.S.C. § 9003(e)(1)(A) (burden of proof); West v. Dobrev, 735 F.3d 921, 929 (10th Cir. 2013). If a- petitioner establishes a prima facie case, the child must be “promptly returned unless one of the narrow exceptions set forth in the Convention applies.” 22 U.S.C. § 9001(a)(4). The district court assumed without deciding that Custodio established a prima facie case for return. Because we find that an affirmative defense applies, we also do not address whether Custodio met his initial burden.

The Hague Convention establishes several affirmative defenses that must be proved by the respondent. See Hague Convention arts. 12, 13, 20. Here, Torres raised the mature child defense under Article 13 of the Convention. In order to carry her burden on this defense, Torres must establish by a preponderance of the evidence (1) that the child has “attained an age and degree of maturity at which it is appropriate to take account of its views” and (2) “that the child objects to being returned.” Hague Convention art. 13; see 22 U.S.C. § 9003(e)(2)(B) (burden of proof); Rodriguez v. Yanez, 817 F.3d 466, 474 (5th Cir. 2016). Like all defenses under the Hague Convention, the court construes the mature child defense narrowly. Rydder, 49 F.3d at 372. The child’s objections can be the sole reason that a court refuses to ..order return, but when they are, the “court must apply a stricter standard in considering a child’s wishes.” Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259, 278 (3d Cir. 2007) (quoting de Silva v. Pitts, 481 F.3d 1279, 1286 (10th Cir. 2007)).

Custodio does not appeal. the district court’s finding that G. had reached a sufficient age and degree of maturity to appropriately take account of his views. The sole issue is whether the district court properly considered G.’s objections.

The parties dispute the proper standard of review to apply to a child’s objections under the Hague Convention. We have not yet addressed this question. Custodio argues that de novo review is appropriate because evaluating a child’s objections is a mixed question of fact and law. Cf. Silverman v. Silverman, 338 F.3d 886, 896 (8th Cir. 2003) (en banc) (holding determination of a child’s “habitual residence” is a mixed question of fact and law reviewed de novo). We find Silverman in-apposite here, and are instead persuaded by out-of-circuit authority,' all of which has concluded that the question of whether a child objected to return is subject to clear error review. See Vasconcelos v. Batista, 512 Fed.Appx. 403, 407 (5th Cir. 2013) (unpublished); Tsai-Yi Yang, 499 F.3d at 279; Blondin v. Dubois, 238 F.3d 153, 167-68 (2d Cir. 2001); see also de Silva, 481 F.3d at 1287 (according “great deference” to the trial court’s findings following its interview of the child). Clear error is appropriate because the district court’s finding that a child has or has not objected is a “fact-intensive” determination that is based in part on the court’s personal observations of the child. See de Silva, 481 F.3d at 1287; Blondin, 238 F.3d at 167. Such determinations are peculiarly within the province of the trial court and must be given “great deference.” United States v. Wright, 512 F.3d 466, 472 (8th Cir. 2008) (trial court’s “credibility judgments based on the testimony and presentation of the witnesses” given “great deference”); see United States v. Ralph, 480 F.3d 888, 890 (8th Cir. 2007) (district court had “distinct advantage at evaluating the credibility” of minor child, making such determinations “virtually unreviewable on appeal”).

Such deference is appropriate here where the district court observed G. testify twice: first, in chambers outside the presence of the parties and lawyers and later, in open court and subject to cross examination. The district court found that G. wished to remain in St. Louis because he did not want to separate from his mother, stepfather, and two brothers. He did not.want to- return to Peru because he “does not feel safe with his father.” In chambers, G. said he was afraid of his father, who was “very aggressive” and had previously struck him and his brother. The district court also observed that G. liked his school in the United States and had many friends, whereas he disliked his Peruvian school and had no real friends there. The court found G. to be a “very thoughtful and .intelligent” young man whose testimony represented his “genuine thoughts and feelings.”

Custodio argues that the district court improperly considered objections relevant only to a custody determination. That is, he contends that a wrongfully removed child may not object based on a wish to live with a particular parent or on circumstances that are the product of the wrongful retention, as decisions based on these objections would embroil the court in the underlying custody dispute. It is true that “[a] case arising from a petition under the Hague Convention is not a custody proceeding.” Barzilay I, 536 F.3d at 847. Under the Hague Convention and ICARA, a district court “has authority to determine the merits of an abduction claim, but not the merits, of the underlying custody claim.” Id. (quotation omitted); see Hague Convention art. 19 (“A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.”); 22 U.S.C. § 9001(b)(4) (“The Convention and this chapter empower courts in the United States to determine only rights under the Convention and not the merits of any underlying child custody claims.”). Such general principles, however, do not control application of the mature child defense—a defense that has not previously been considered by this court. The propriety of considering evidence relevant to custody in a proceeding under the Hague Convention depends on the nature of the exception to return and the specific facts of the case, Cf. Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 378, 377 (8th Cir. 1995) (instructing the district court “not to consider evidence relevant to custody or the best interests of the child” in evaluating the “grave risk of harm” defense which requires a determination of “whether the child will face immediate and substantial risk of an intolerable situation if he is returned”).

With regard to the mature child defense, the Explanatory Report provides the following guidance:

[T]he Convention also provides that the child’s views concerning the essential question of its return or retention may be conclusive, provided it has, according to the competent authorities, attained an age and degree of maturity sufficient for its views to be taken into account. In this way, the Convention gives children the possibility of interpreting their own interests. Of course, this provision could prove dangerous if it were applied by means of the direct questioning of young people who may admittedly have a clear grasp of the situation but who may also suffer serious psychological harm if they think they are being forced to choose between two parents. However, such a provision is absolutely necessary given the fact that the Convention applies, ra-tione personae, to all children under the age of sixteen; the fact must be acknowledged that it would be very difficult to accept that a child of, for example, fifteen years of age, should be returned against its will.

Pérez-Vera, supra ¶ 30. This commentary makes clear that a mature child’s views on return can be “conclusive.” As the Fifth Circuit recently explained, the Explanatory Report “does not suggest the child’s interpretation of [his] ‘own interests’ is invalid if it is based” on custody considerations. Rodriguez, 817 F.3d at 475. Rather, “the drafters of the Convention simply deemed it inappropriate to return a mature child ‘against its will’—whatever the reason for the child’s objection.” Id at 475-76. We agree with the Fifth Circuit’s well-reasoned interpretation of the mature child defense. Requiring the district court to distinguish between a child’s custody-based and non-custody-based .objections would likely be an impossible task—a task that the Convention does not require. Accordingly, the district court did not err in considering objections that may also be relevant to a custody proceeding.

G.’s testimony included particularized objections to returning to Peru, such as his fear of his father with whom he felt unsafe, his dislike of his Peruvian school, and his lack of friends in Peru. Due to mistreatment by his father and paternal grandmother, G. expressed that he would not visit Custodio even if he was required to return to Peru. Further, G. has specific ties to the United States, including M. and his baby brother, whereas he has virtually no ties to Peru and barely any relationship with Custodio, with whom he has had no contact since arriving in the United States and saw only sporadically prior to leaving Peru. Based on these facts, the district court did not clearly err in finding that G.’s statements constituted an objection within the meaning of the mature child defense.

III. Abuse of Discretion

Even though Torres met her burden of proving the mature child affirmative defense applies, the district court has the discretion to refuse to apply the defense and “order the return of the child if it would further the aim of the Convention which is to provide for the return of a wrongfully removed child.” Tsai-Yi Yang, 499 F.3d at 278 (quoting de Silva, 481 F.3d at 1285); see also Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed. Reg. at 10,509 (“The courts retain the discretion to .order the child returned even if they consider that one or more of the exceptions applies.”). The district court’s decision whether to apply a defense is reviewed for abuse of discretion. See Garcia v. Pinelo, 808 F.3d 1158, 1167 (7th Cir. 2015) (“[A] district court retains discretion not to apply an exception, and ... its decision either way is reviewed only for abuse of discretion.”).

Custodio argues the district court abused its discretion in refusing to order return. According to Custodio, allowing G. to remain in the United States improperly overrides the Peruvian court’s custody orders, which are entitled to deference and comity in this court. Further, Custodio argues that by refusing to order return, the district court undermined the aim of the Convention to “deter abduction by ‘depriv[ing] [the abductor’s] actions of any practical or juridical consequences.’ ” Barzilay II, 600 F.3d at 916 (alternations in original) (quoting Pérez-Vera, supra ¶ 16). As Custodio points out, when Torres applied to the Peruvian court for temporary travel authorization, she had no intention of returning the children: She brought all of her belongings to St. Louis and married an American citizen ten days after arrival. Since then, Torres has disobeyed five orders from the Peruvian court compelling her to return the children. Given these facts, it would not have been an abuse of discretion for the district court to return the children, regardless of the mature child defense finding. District courts may decline to apply a defense where doing so would reward a parent for wrongfully removing or retaining the children in violation of a Contracting State’s custody orders. See Garcia, 808 F.3d at 1169; Tsai-Yi Yang, 499 F.3d at 280.

However, while Torres’ actions are concerning, they do not compel a finding that the district court abused its discretion in refusing to order return. The district court’s decision to respect 15-year-old G.’s opposition to returning to Peru and desire to remain in the United States was not an abuse of discretion. After thorough questioning by the district court and opposing counsel, the court found G. “understood the purpose and significance” of the proceedings and conveyed his “genuine thoughts and feelings” regarding return. The court acted within its discretion in deferring to the objections of an undisput-edly mature child. The district court’s- consideration of a mature child’s views may but need not be affected by the wrongful actions of his or her parent.

Conclusion

This is undoubtedly a close case. But, the district court did not clearly err in considering G.’s objections to returning to Peru. Whether to apply the mature child defense was within the district court’s discretion. We see nothing powerful enough in this record to warrant the rejection of its conclusion. Wé deny as moot the appeal as to M. and affirm the district court’s judgment as to G.

      . The Honorable John A. Ross, United States District Judge, Eastern District of Missouri.

      . As we do not address Custodio’s prima facie case, we need not decide whether Custodio had "rights of custody” cognizable under'the ■ Convention. Hague Convention art. 5. This argument was not fully developed before=the district court or before us, and the court has previously recognized that distinguishing between custody rights and access rights "can be a complex question.” Barzilay II, 600 F.3d at 921 n.9.

      . Custodio also argues that the district court should have ignored the children’s objections because their desire to remain in the United States is the product of Torres’ undue influence. See Rodriguez, 817 F.3d at 476; Tsai-Yi Yang, 499 F.3d at 279. However, his undue influence argument focuses solely on M.’s testimony and thus is moot. Even so, Custodio presents no basis to disturb the district court's conclusion that G.’s testimony represented his “genuine thoughts and feelings and there was no indication that [he] had been coached or otherwise unduly influenced” by Torres.


author: THOMAS, Chief Judge:

text:
    RETAIL DIGITAL NETWORK, LLC, Plaintiff-Appellant, v. Timothy GORSUCH, as Director of the California Department of Alcoholic Beverage Control, Defendant-Appellee.
    No. 13-56069
    United States Court of Appeals, Ninth Circuit.
    FILED NOVEMBER 16, 2016
   ORDER

THOMAS, Chief Judge:

Upon the vote of a majority of nonre-cused active judges, it is ordered that this case be heard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to any court of the-Ninth Circuit.

Judge Owens did not participate in the deliberations or vote in this case.