author: MURPHY, Circuit Judge.

text:
    Paul GERLICH; Erin Furleigh, Plaintiffs-Appellees v. Steven LEATH; Warren Madden; Thomas Hill; Leesha Zimmerman, Defendants-Appellants Student Press Law Center; Ratio Christi; Students for Life of America; Christian Legal Society; Young America’s Foundation; Young Americans for Liberty, Amici on Behalf of Appellee(s)
    No. 16-1518
    United States Court of Appeals, Eighth Circuit.
    Submitted: December 14, 2016
    Filed: February 13, 2017

      Counsel who presented argument on behalf of the appellant was Tyler Murray Smith, AAG, of Des Moines, IA. The following attorney(s) appeared on the appellant brief; Jeffrey S. Thompson, AAG, Des Moines, IA.
    Counsel who presented argument on behalf of the appellee was Robert Corn-Revere, of Washington, DC. The following attorney(s) appeared on the appellee brief; Michael Giudicessi, of Des Moines, IA, Ronald London, of Washington, DC., Lisa Beth Zycherman, of Washington, DC.
    The following attorney(s) appeared on the- amicus brief of Students for Life of America, Young America’s Foundation, Young Americans for Liberty, Ratio Christi and Christian Legal Society in support of appellees; M. Casey Mattox, of Washington, DC, and David J. Hacker, of Folsom, CA.
    The following attorney appeared on the amicus brief of The Student Press Law Center in support of appellees: Eugene Volokh, UCLA School of Law, Los Ange-les, CA.
    Before LOKEN, MURPHY, and KELLY, Circuit Judges.
   MURPHY, Circuit Judge.

Iowa State University (ISU) grants student organizations permission to use its trademarks if certain conditions are met. The ISU student chapter of the National Organization for the Reform of Marijuana Laws (NORML ISU) had several of its trademark licensing requests denied because its designs included a cannabis leaf. Two members of the student group subsequently filed this 42 U.S.C. § 1983 action, alleging various violations of their First and Fourteenth Amendment rights. The district court granted plaintiffs’ summary judgment motion in part and entered a permanent injunction against defendants. Defendants appeal, and we affirm.

I.

ISU is a land grant university that has an enrollment of-over 36,000 students and approximately 800 officially recognized student organizations. Student groups often create merchandise that contains the group’s name and ISU insignia to generate awareness about the group’s cause or attract members. Student groups may use ISU’s trademarks on merchandise if ISU’s Trademark Licensing Office (Trademark Office) determines that the use complies with ISU’s Guidelines for University Trademark Use by Student and Campus Organizations (Trademark Guidelines). ISU’s trademarks include word marks like “ISU” and “Iowa State,” as well as logos, such as the school’s mascot (Cy the Cardinal). At all relevant times, Leesha Zimmerman was the director of ISU’s Trademark Office and reported to Warren Madden, Senior Vice President of the Division of Business & Financial Affairs.

NORML ISU is an officially recognized student organization at ISU. It is a student chapter of the national NORML organization and its purpose is to reform federal and state marijuana laws. The group was refounded in 2012. In October 2012, NORML ISU submitted a t-shirt design (T-Shirt Design #1) to the Trademark Office that had “NORML ISU” on the front with the “O” represented by Cy the Cardinal. On the back the shirt read, “Freedom is NORML at ISU” with a small cannabis leaf above “NORML.” The Trademark Office approved T-Shirt Design #1.

On November 19, 2012, the Des Moines Register published a front page article about the marijuana legalization referenda in Colorado and Washington and pending legislative efforts in Iowa to legalize recreational and medicinal marijuana. The article quoted NORML ISU President Josh Montgomery regarding the group’s political efforts to change Iowa’s marijuana laws. The article then stated “Montgomery said his group has gotten nothing but support from the university. He even got approval from the licensing office to make a' NORML T-shirt with the ISU logo; the red shirt features Cy the Cardinal on the front, and a pot leaf on the back....” The article' also contained a photograph of the front and back of T-Shirt Design #1.

At 8:50 AM on November 19, Zimmerman provided ISU’s public relations office with the following statement regarding the article:

The university’s Trademark Policy and Student Use Guidelines allow officially recognized student organizations the ability to use Iowa State’s trademarks as long as they observe the proper procedures and follow specified design standards. Groups, including NORML, may use any of the university’s indicia (names, graphics, logos, etc.) as long as they seek review and approval from the Trademark Licensing Office, which they did for the T-shirts. This does not mean that we take a position on what any of the organizations represent. We have 800 groups from The ISU Line Dancer’s [sic], CUFFS, the ISU Baseball Club, LGBTAA, John Paul Jones Society, Game Renegades, ROTC, and many more. I believe that the statement in the article indicating “his group has gotten nothing but support from the university” is a bit misleading. He may be confusing recognition of the group as the university “supporting” it.

Later that morning, an Iowa House Republican caucus staff person sent a formal legislative inquiry to ISU’s State Relations Officer asking whether “ISU’s licensing office approve[d] the use of the ISU logo on the NORML t-shirt” pictured in the article. This request was forwarded to ISU President Steven Leath and his chief of staff, Miles Lackey, at 1:08 PM.

At 2:00 PM Madden told Thomas Hill, Senior Vice President for Student Affairs, Zimmerman, and other ISU administrators that Lackey indicated that ISU was “getting some push back regarding the Register article,” and that “[h]e wants to place this on” the president’s cabinet meeting discussion agenda. Leath later testified that “the reason it was on the agenda is because we were getting pushback. If nobody’d ever said anything, we didn’t know about it, it didn’t appear in The Register, we’d probably never raised the issue.”

At 3:00 PM Leath emailed Lackey to ask whether ISU could “revoke” the approval of T-Shirt Design #1 “without more damage.” Leath explained this email at his deposition by stating “[i]f we gave approval to something that was inappropriate, we might want to consider revoking it, but we could just make the problem worse, and I was asking for his advice.”

At 3:19 PM Leath stated in an email to Madden “[w]e need to deal with this.... What were they thinking?” Leath explained at his deposition that because T-Shirt Design #1 “had some political public relations implications,” someone should have “run it up the chain” because “there are some issues that are clearly going to cause controversy and it’s better to manage them on the front end.” Leath also testified that “my experience would say in a state as conservative as Iowa on many issues, that” T-Shirt Design #1 “was going to be a problem.”

On November 20, Dale Wollery of the Governor’s Office of Drug Control Policy-emailed and called the head of ISU’s government relations office about the article. Wollery’s email indicated that he was “curious about the accuracy of the student’s statement cited in the report, and perhaps the process used by ISU to make such determinations.” Wollery’s concerns were shared with Zimmerman, Lackey, and Leath on November 21. Leath testified at. his deposition that “anytime someone from the governor’s staff calls complaining, yeah, I’m going to pay attention, absolutely.” Leath further elaborated, “we are a state entity and he’s the chief executive of the state, and so directly or indirectly we’re responsible to the governor.”

On November 21, the head of ISU’s public relations office responded to Wol-lery’s messages by stating that NORML ISU’s use of ISU’s trademarks was “permitted under the policies governing student organizations.” The email went on to say, “[h]owever, this procedure is being reviewed.”

On November 24, NORML ISU requested permission from ISU’s Trademark Office to use T-Shirt Design #1 for another order. Madden decided to place this reorder on hold until after the president’s cabinet meeting. Madden testified that he did not order the Trademark Office to hold reorder approvals for any other campus group. Zimmerman testified that she could not think of any other time that the Trademark Office had placed a student group request on hold. The president’s cabinet meeting took place on November 26. After discussing the Des Moines Register article and NORML ISU’s reorder request, the group agreed that ISU’s Trademark Guidelines had to be changed.

Madden and Hill met with members of NORML ISU on November 29. Madden and Hill referenced the Des Moines Register article and expressed concern that the group’s use of ISU’s trademarks on T-Shirt Design #1 caused confusion as to whether ISU endorsed the group’s views regarding the legalization of marijuana. They then informed the group that the Trademark Office would not approve of any t-shirt design that used ISU trademarks in conjunction with a cannabis leaf. They also told the group that it was required to obtain approval for any future designs from Madden and Hill prior to submitting the designs to the Trademark Office. Zimmerman testified that to her knowledge this was the first time ISU had imposed a prior review procedure to a student group’s trademark design application process.

NORML ISU’s reorder of T-Shirt Design #1 was rejected by ISU’s Trademark Office on December 3. On January 16, 2013 the Trademark Guidelines were revised. The new Trademark Guidelines prohibited “designs that suggest promotion of the below listed items ... dangerous, illegal or unhealthy products, actions or behaviors; ... [or] drugs and drug paraphernalia that are illegal or unhealthful.” Madden indicated that this revision to the Trademark Guidelines “was done as the result of a number of external comments including interpretations that the t-shirt developed indicated that Iowa State University supported the NORMAL [sic] ISU advocacy for the reform of marijuana laws.”

After the Trademark Guidelines were revised, the Trademark Office rejected every NORML ISU design application that included the image of a cannabis leaf. The Trademark Office also rejected designs that spelled out the NORML acronym but replaced “Marijuana” with either “M* ****** *” or “M[CENSORED].” The Trademark Office however approved several designs which did not use a cannabis leaf, but simply stated the group’s name, and fully spelled out the NORML acronym.

In July 2014 Paul Gerlich and Erin Fur-leigh filed this action against Leath, Madden, Hill, and Zimmerman stating claims under 42 U.S.C. § 1988 for alleged violations of their First and Fourteenth Amendment rights. At the time the complaint was filed, Gerlich was the president of NORML ISU and Furleigh was the group’s vice president. Count I alleged that defendants’ trademark licensing decisions, as applied to plaintiffs, violated their right to free speech. Counts II through IV alleged that the trademark guidelines were unconstitutional on their face and unconstitutionally vague. The district court granted plaintiffs’ motion for summary judgment on Count I, but dismissed Counts II through IV. The district court also entered a permanent injunction that prohibits defendants “from enforcing trademark licensing policies against Plaintiffs in a viewpoint discriminatory manner and from further prohibiting Plaintiffs from producing licensed apparel on the basis that their designs include the image of a ... cannabis leaf.”

II.

Defendants argue that the district court improperly concluded that plaintiffs have standing to bring this action. We review de novo “the district court’s conclusion that the plaintiffs had standing.” Jones v. Gale, 470 F.3d 1261, 1265 (8th Cir. 2006). Standing is a “jurisdictional prerequisite that must be resolved before reaching the merits of a suit.” Hodak v. City of St. Peters, 535 F.3d 899, 903 (8th Cir. 2008) (quoting Medalie v. Bayer Corp., 510 F.3d 828, 829 (8th Cir. 2007)). Under Article III of the Constitution, a plaintiff must demonstrate three elements to establish standing: “(1) injury in fact, (2) a causal connection between that injury and the challenged conduct, and (3) the likelihood that a favorable decision by the court will redress the alleged injury.” Young Am. Corp. v. Affiliated Computer Servs. (ACS), Inc., 424 F.3d 840, 843 (8th Cir. 2005). Plaintiffs bear the burden of proving these elements. See id.

Defendants argue that plaintiffs lack an injury in fact because plaintiffs are asserting NORML ISU’s right to free speech, not their own. To establish an injury in fact, a party must “show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.” Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). An injury is defined under 42 U.S.C. § 1983 as a “deprivation of any rights, privileges, or immunities secured by the Constitution and laws.”

We conclude that plaintiffs suffered an injury in fact in their individual capacities, and that they therefore have standing to bring this action. Plaintiffs’ attempts to obtain approval to use ISU’s trademarks on NORML ISU’s merchandise amounted to constitutionally protected speech. See, e.g., Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828-37, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995). Plaintiffs’ allegations that ISU violated their First Amendment rights by rejecting their designs and therefore preventing their ability to spread NORML ISU’s message are sufficient to establish an injury in fact. Moreover, in both Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981), and Rosenberger, 515 U.S. 819, 115 S.Ct. 2510, individual students sued universities on behalf of their student organizations and the Supreme Court did not conclude that it lacked subject matter jurisdiction over the students’ actions. We therefore conclude that plaintiffs have standing to bring this action.

III.

Defendants next argue that the district court erred by granting plaintiffs summary judgment on their as applied First Amendment claim. We review a district court’s “grant of summary judgment de novo and consider the facts in the light most favorable to the nonmoving party.” Nichols v. Tri-Nat'l Logistics, Inc., 809 F.3d 981, 985 (8th Cir. 2016). A district court’s grant of “[sjummary judgment is only appropriate when ‘there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.’ ” Id. (quoting Pinson v. 45 Dev., LLC, 758 F.3d 948, 951-52 (8th Cir. 2014)).

A.

We first must determine whether the district court properly applied the qualified immunity doctrine to this dispute. “Qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Mountain Pure, LLC v. Roberts, 814 F.3d 928, 932 (8th Cir. 2016) (quoting Coates v. Powell, 639 F.3d 471, 476 (8th Cir. 2011)). Qualified immunity does not apply to claims for injunctive relief, however. Mead v. Palmer, 794 F.3d 932, 937 (8th Cir. 2015). Qualified immunity is not an issue here because this appeal solely concerns plaintiffs’ request for in-junctive relief.

B.

Next, we must determine whether defendants violated plaintiffs’ First Amendment rights. If a state university creates a limited public forum for speech, it may not “discriminate against speech on the basis of its viewpoint.” Ro-senberger, 515 U.S. at 829, 115 S.Ct. 2510. A university “establishes] limited public forums by opening property limited to use by certain groups or dedicated solely to the discussion of certain subjects.” Christian Legal Soc. Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, 561 U.S. 661, 679 n.11, 130 S.Ct. 2971, 177 L.Ed.2d 838 (2010) (internal quotation marks and citation omitted). A university’s student activity fund is an example of a limited public forum. See Rosenberger, 515 U.S. at 823-27, 829-30, 115 S.Ct. 2510. ISU created a limited public forum when it made its trademarks available for student organizations to use if they abided by certain conditions.

The defendants’ rejection of NORML ISU’s designs discriminated against that group on the basis of the group’s viewpoint. The state engages in viewpoint discrimination when the rationale for its regulation of speech is “the specific motivating ideology or the opinion or perspective of the speaker.” Rosenberger, 515 U.S. at 829, 115 S.Ct. 2510. Every viewpoint discrimination claim “requires, by its very nature, that the purposes or motives of governmental officials be determined.” Gay & Lesbian Students Ass’n v. Gohn, 850 F.2d 361, 367 (8th Cir. 1988). Viewpoint discrimination “can be justified only if the government demonstrates that its regulation is narrowly drawn and is necessary to effectuate a compelling state interest.” Id. at 366.

The defendants’ discriminatory motive is evidenced by the unique scrutiny defendants imposed on NORML ISU after the Des Moines Register article was published. For example, after the article had been published, defendants placed NORML ISU’s reorder of T-Shirt Design #1 on hold despite the fact that the Trademark Office had already approved the design. Defendants claim that the hold on NORML ISU’s reorder request was not specific to that group because they also placed on hold a trademark request for a plaque made by the Association of Malaysian Students. Zimmerman indicated in an email, however, that if that group were to tell administrators when it needed the plaque, the Trademark Office “may be able to move that review forward.” ISU did not offer NORML ISU similar flexibility. Moreover, Zimmerman testified that she could not recall ever placing another student group’s reorder request on hold, and Madden testified that he did not order the Trademark Office to hold reorder requests from any other student group.

Another example of the unique scrutiny imposed on NORML ISU is that the group was required to obtain approval from Madden and Hill for any future designs using ISU trademarks prior to submitting the designs to the Trademark Office. Zimmerman testified that to her knowledge this was the first time ISU had imposed such a prior review procedure. Defendants argue that this type of scrutiny was not unique to NORML ISU because the hockey club was also subject to additional oversight over its trademark applications. The university had imposed additional scrutiny on the hockey club because the club mismanaged funds and misrepresented itself as an intercollegiate sport, however. NORML ISU had not engaged in similar malfeasance. Moreover, the hockey club was not required to receive preapproval of its designs by two ISU senior vice presidents.

A third example of the unique scrutiny NORML ISU received is that NORML ISU is the only ISU student group to have had its trademark application denied for fear that the university would be endorsing a political cause. Defendants point to six examples of design requests that were rejected to avoid the appearance of an endorsement. All of these examples are inapposite, however. Four of the designs were rejected because it appeared ISU was endorsing a corporate logo. Another design was rejected because it suggested that a club sport was an official athletic department sport. The final design was rejected because it appeared that ISU was endorsing the views of the Students for Life club, but the Trademark Office approved the design after the group made one minor change to the design.

Defendants’ actions and statements show that the unique scrutiny they imposed on NORML ISU’s trademark applications was motivated by viewpoint discrimination. After the Des Moines Register article was published, ISU stated that any student group could use the university trademarks “as long as they observe the proper procedures and follow specified design standards.” ISU further stated that “[t]his does not mean that we take a position on what any of the organizations represent.” After the governor’s office and an Iowa House Republican Caucus staff person contacted ISU regarding the article, however, defendants immediately took measures to contain the political controversy by revising its Trademark Guidelines and imposing unique scrutiny upon NORML ISU’s trademark application process.

Defendants argue that the political pushback that they received regarding T-Shirt Design #1 did not play a role in their decision making. This argument ignores significant evidence to the contrary. For example, Leath testified that “anytime someone from the governor’s staff calls complaining, yeah, I’m going to pay attention, absolutely.” Leath also testified that the “reason the Trademark Policy was on the president’s cabinet meeting agenda which took place five days after the Des Moines Register article was published was “because we were getting pushback.” Leath went on to testify that “[i]f nobody’d ever said anything, we didn’t know about it, it didn’t appear in The Register, we’d probably never raised the issue.”

The record is also replete with statements from defendants regarding their political motives. Leath explained at his deposition that because T-Shirt Design #1 “had some political public relations implications,” someone should have “run it up the chain” because “there are some issues that are clearly going to cause controversy and it’s better to manage them on the front end.” He also testified that “in a state as conservative as Iowa on many issues, ... it was going to be a problem.” Hill stated in an interview with the Ames Tribune that the reason student groups associated with political parties could use ISU’s logos, but groups like NORML ISU may not, is because “[w]e encourage students to be involved in their duties as a citizen.” Such a statement implies that Hill believed that the members of NORML ISU were not undertaking their duties as citizens by advocating for a change in the law.

Zimmerman stated in an email to NORML ISU’s faculty advisor in May 2013 that the group’s design that included the statement “Legalize Marijuana” was rejected because “ ‘Legalize Marijuana’ is a call to action but it does not suggest any specific way your organization is making that happen.” Zimmerman went on to say that the group’s design applications “appear to have a certain shock or attention grabbing sensationalism.” Zimmerman further stated that her “interpretation is that these do not further your cause as an advocate for change in the laws or trying to change the public’s perception of marijuana.” There is no evidence in the record of Zimmerman offering advocacy advice to any other student group.

Finally, Madden indicated that the Trademark Guidelines were revised “as the result of a number of external comments including interpretations that the t-shirt developed indicated that Iowa State University supported the NORMAL [sic] ISU advocacy for the reform of marijuana laws.” As noted above, however, the Trademark Office had never before rejected a student group’s design application due to confusion over endorsement of the group’s cause. Moreover, defendants consistently stated throughout the record that a student organization’s use of ISU marks does not indicate university approval of that group’s beliefs.

The instant facts are somewhat similar to those in Gay & Lesbian Students Ass’n v. Gohn, 850 F.2d 361 (8th Cir. 1988). In that case, the University of Arkansas made funding available to student groups but denied funding one advocating for gay and lesbian rights. Id. at 362-65. We concluded that the university had engaged in viewpoint discrimination. Id. at 367. In reaching this conclusion our court relied on the fact that the university followed an unusual funding procedure that was specific to the gay and lesbian group, some of the decision makers “freely admitted that they voted against the group because of its views,” and “[u]niversity officials were feeling pressure from state legislators not to fund” the group. Id.

Similar to the university in Gohn, ISU followed an unusual trademark approval process with respect to all of NORML ISU’s trademark design applications after the Des Moines Register article was published. Moreover, defendants at least implied that the additional scrutiny imposed on NORML ISU was due to the views for which it was advocating. Finally, defendants were motivated at least in part by pressure from Iowa politicians.

The district court did not err by concluding that defendants violated plaintiffs’ First Amendment rights because defendants engaged in viewpoint discrimination and did not argue that their administration of the trademark licensing program was narrowly tailored to satisfy a compelling governmental interest.

C.

Defendants argue- that even if they did engage in viewpoint discrimination, they did not violate plaintiffs’ First Amendment rights because the administration of the trademark licensing regime should be considered government speech. The “Free Speech Clause restricts government regulation of private speech” but “it does not regulate government speech.” Roach v. Stouffer, 560 F.3d 860, 863 (8th Cir. 2009) (quoting Pleasant Grove City v. Summum, 555 U.S. 460, 467, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009)). When the “government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.” Walker v. Tex. Div., Sons of Confederate Veterans, Inc., — U.S.-, 135 S.Ct. 2239, 2245, 192 L.Ed.2d 274 (2015).

The government speech doctrine does not apply if a government entity has created a limited public forum for speech. Pleasant Grove City, 555 U.S. at 470, 478-80, 129 S.Ct. 1125. As noted above, ISU created a limited public forum when it made its trademarks available for student organizations to use if they abided by certain conditions. The administration of its trademark licensing regime therefore did not constitute government speech.

Even if the trademark licensing regime here did not amount to a limited public forum, however, the government speech doctrine still does not apply on this record. The Walker decision considered three factors when determining whether certain speech is government speech. 135 S.Ct. at 2248-49. First, it determined whether the government has long used the particular medium at issue to speak. Id. at 2248. Second, it analyzed whether the medium is “often closely identified in the public mind with the” state. Id. (internal quotation marks omitted). Third, it determined whether the state “maintains direct control over the messages conveyed” through the medium. Id. at 2249.

The first two factors do not apply to the speech at issue in this case. ISU allows approximately 800 student organizations to use its trademarks. Defendants repeatedly stated in their testimony and other record evidence that the university did not intend to communicate any message to the public by licensing ISU trademarks to student groups. Indeed, the university licenses its trademarks to groups that have opposite viewpoints from one another like the Iowa State Democrats and the ISU College Republicans. Even if ISU’s trademark licensing regime were to satisfy the final factor, the factors taken together would not support the conclusion that the speech at issue in this case is government speech because ISU does not use its trademark licensing regime to speak to the public.

rv.

Defendants argue that the in-junctive relief granted by the district court is too broad because it grants NORML ISU the ability to use its trademarks in a way that violates its viewpoint neutral trademark guidelines. We review a challenge to a “district court’s issuance of a permanent injunction for abuse of discretion.” Randolph v. Rodgers, 170 F.3d 850, 856 (8th Cir. 1999). An injunction must not be “broader than necessary to remedy the underlying wrong.” Coca-Cola Co. v. Purdy, 382 F.3d 774, 790 (8th Cir. 2004). As noted above, NORML ISU’s use of the cannabis leaf does not violate ISU’s trademark policies because the organization advocates for reform to marijuana laws, not the illegal use of marijuana. The district court’s injunctive order therefore did not abuse its discretion.

V.

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

      . The Honorable James E. Gritzner, United States District Judge for the Southern District of Iowa.


source: Caselaw Access Project

author: M. SMITH, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Rogelio LEMUS, AKA Sky, Defendant-Appellant.
    No. 14-50355
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted February 2, 2016 Pasadena, California
    Filed March 2, 2016
    Amended June 28, 2016

      Michael Tanaka (argued), Deputy Federal Public Defender, Hillary Potashner, Federal Public Defender, Los Angeles, California, for Defendant-Appellant.
    Stephen G. Wolfe (argued), Assistant United States Attorney, Sheila Nagaraj, Assistant United States Attorney, Lawrence S. Middleton, Assistant United States Attorney, Chief, Criminal Division, Eileen M. Decker, United States Attorney, Los Angeles, California, for Plaintiff-Ap-pellee.
    Before: STEPHEN R. REINHARDT, RICHARD A. PAEZ, and MILAN D. SMITH, JR., Circuit Judges.
   ORDER

The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

The Opinion filed on March 2, 2016 is replaced with the concurrently filed amended opinion.

The petitions for rehearing and rehearing en banc are otherwise DENIED. No further petitions for rehearing will be accepted.

The petitions for rehearing and rehearing en banc are otherwise DENIED. No further petitions for rehearing will be accepted.

OPINION

M. SMITH, Circuit Judge:

Defendant Rogelio Lemus appeals his conviction for possession with intent to distribute more than 50 grams of methamphetamine. Because we conclude that insufficient evidence supported the jury’s quantity determination, we reverse in part and remand for resentencing pursuant to the statutory range set forth in 21 U.S.C. § 841(b)(1)(C).

FACTS AND PRIOR PROCEEDINGS

In early May of 2011, FBI informant Ana Montano was dispatched to a bar to meet with Defendant Rogelio Lemus. Le-mus, seeing Montano’s gang tattoo, volunteered that he was a member of the same gang, and asked Montano if she knew the clique to which he belonged. Montano told him that she was looking for somebody who could supply ounce-quantities of methamphetamine. Lemus responded that he had a pound for sale.

On May 16, 2011, Montano made a recorded call to Lemus. She stated that she wanted to buy two ounces. Lemus responded: “Just two? ... I’m going to tell the guy, because, well, you know, the bags have to be torn up, you understand?” On May 18, 2011, Montano and Lemus arranged to meet to carry out the sale and agreed to a price for the two ounces, but Lemus was delayed by the absence of his associate. When he finally arrived, Lemus, consistent with his initial offer of a pound and his earlier hesitancy to “tear up” the bags, but contrary to his agreement earlier that day to sell a smaller quantity, stated that he was unable to sell the methamphetamine in ounce quantities because they only sold it by the pound. Lemus offered to give Montano a sample, but Montano demurred, saying that her buyer would not trust that the sample was the same quality as the pound.

After the meeting, FBI agents followed Lemus to his house, and were able to identify him from the motor vehicle records for his truck. The agents did not conduct a traffic stop, and did not obtain a search warrant to search for drugs. No drugs were seen or observed on the date of the meeting, and Montano did not believe that Lemus had the pound of methamphetamine in his truck during the meeting, although she believed that he had it that day.

At his post-arrest interview, Lemus denied involvement in drug trafficking, and claimed that he often joked on the phone about drugs. At trial, the government did not produce the drugs or present any testimony that someone saw Lemus in possession of a substance that appeared to be methamphetamine.

DISCUSSION

I. Sufficiency of the Evidence

A. Standard of Review

In reviewing a conviction for sufficiency of the evidence, we ask whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Nevils, 598 F.3d 1158, 1163-64 (9th Cir. 2010) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Under this two-step inquiry, we therefore first consider the evidence presented at trial in the light most favorable to the prosecution, and second, determine whether the evidence so viewed is adequate to allow any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. Id. at 1164.

B. The Elements of the Offense

Lemus was convicted of violating 21 U.S.C. § 841(a)(1), which prohibits, inter alia, possession of a controlled substance with intent to distribute. The jury found that he possessed at least 50 grams of methamphetamine, subjecting him to the penalty specified in 21 U.S.C. § 841(b)(l)(A)(viii). To violate this statute, actual possession is not required: constructive possession also suffices. “The term ‘constructive possession’ does not connote a legal fiction. Rather, the term simply reflects the common sense notion that an individual may possess a controlled substance even though the substance is not on his person at the time of arrest.” United States v. Disla, 805 F.2d 1340, 1350 (9th Cir. 1986).

Constructive possession means “the exercise of ‘dominion and control,’ ” and “may be demonstrated by direct or circumstantial evidence that the defendant had the power to dispose of the drug.” Id. (citing United States v. Amaro, 422 F.2d 1078, 1080 (9th Cir. 1970); Arellanes v. United States, 302 F.2d 603, 606 (9th Cir. 1962)).

[O]ne having a working relationship or a sufficient association with those having physical custody of the drugs so as to enable him to assure their production, without difficulty, to a customer as a matter of course may be held to have constructive possession. But a casual facilitator of a sale, who knows a given principal possesses and trades in narcotics but who lacks the working relationship with that principal that enables an assurance of delivery, may not be held to have dominion and control over the drug delivered and cannot be said to have possession of it.

Hill v. United States, 379 F.2d 811, 814 (1967) (quoting United States v. Jones, 308 F.2d 26, 30-31 (2d Cir. 1962)).

“Constructive possession may also be proven by the defendant’s participation in a ‘joint venture’ to possess a controlled substance.” Disla, 805 F.2d at 1350 (citing United States v. Valentin, 569 F.2d 1069, 1071 (9th Cir. 1978)). “[Cjoordi-nated activity among the defendants raises a reasonable inference of a joint venture.” United States v. Smith, 962 F.2d 923, 930 (9th Cir. 1992) (quoting United States v. Hernandez, 876 F.2d 774, 778 (9th Cir. 1989) (alteration in original)). “In addition to association, the government must also establish that the defendant had a role in directing or planning the acquisition or transportation of the drugs.” Id.

C. Reliance on Lemus’s Statements

Lemus argues that without corroboration, his own inculpatory statements made during the offense cannot support a conviction. Lemus relies upon United States v. Valdez-Novoa, 780 F.3d 906, 922 (9th Cir. 2014). However, Valdez-Novoa involved a defendant’s confession, not contemporaneous statements. Id. And, Valdez-Novoa framed the rule as directed to confessions: “the contemporary iteration of the common law corpus delicti rule” is that “[a]l-though the government may rely on a defendant’s confession to meet its burden of proof ... in order to serve as the basis for conviction, the government must also adduce some independent corroborating evidence.” Id.

Lemus relies on out-of-circuit authority to argue that we should extend the corroboration requirement from statements made during a confession to those made during the commission of the crime, citing among others United States v. Bryce, 208 F.3d 346, 356 (2d Cir. 1999) and United States v. Baggett, 890 F.2d 1095-97 (10th Cir. 1989). We need not address this contention, however, because the conviction here does not rest solely on a bald statement by Lemus that he had methamphetamine to sell. He also took steps consistent with that statement, including agreeing on price, arranging a sale date, collaborating with his associate, and, especially, offering a sample. These actions would sufficiently corroborate Lemus’ initial incriminatory statements, even if we were to extend the rule.

D. The Sufficiency of the Statements to Support the Conviction

The evidence presented at trial is sufficient to sustain the conviction under a constructive possession theory because a reasonable jury could have concluded that Lemus (1) had “a working relationship or a sufficient association with those having physical custody of the drugs so as to enable him to assure their production, without difficulty, to a customer as a matter of course,” Hill, 379 F.2d at 814, or (2) that he engaged in a joint venture, with a “role in directing or planning the acquisition or transportation of the drugs.” Smith, 962 F.2d at 930.

At the first meeting between Lemus and Montano at the bar, Lemus said that he had one pound of “crystal” (methamphetamine) that he was willing to sell. On the day of the intended sale, Montano and Lemus arranged to meet, and Lemus instructed Montano that the price would be $1,100 for each ounce. Lemus had to delay the meeting because his associate, someone who has never been identified, was not yet in the area.

In a phone call explaining why it was taking so long to arrive, Lemus told Mon-tano that the methamphetamine was “in a city nearby.” When he finally arrived, he instructed Montano to come down, but without the money, because “we are going to explain something here.” Montano asked: “Do you have it or don’t you?” Lemus responded that “[t]here was a misunderstanding, I will explain it to you.”

When Montano reached the car, Lemus stated that he could only sell by the pound, not by the ounce, but that Lemus had a sample to give Montano if she wanted. Lemus instructed Montano to tell her buyer that he dealt in “a pound and up,” that Lemus had “a picture” he could show and that he would bring a “sample” of “what I have in pounds” that Montano could assess for quality. Montano declined the sample, explaining that her buyer did not want a sample because of the concern that the pound would not be of the same quality. The meeting then ended.

After his arrest, Lemus told the interviewing FBI agent that remarks he made over the phone about drugs were jokes. Given the content and context of the recorded calls introduced as evidence, a reasonable jury would have no difficulty rejecting that explanation. These were not offhand, playful remarks made and received in jest. Instead, they appear to be a continuous and serious attempt to arrange a drug transaction.

Lemus had constructive possession via “the power to dispose of’ a pound of methamphetamine, Disla, 805 F.2d at 1350, although due to the policies of his distribution structure, he lacked the power to dispose of the drug in smaller, ounce-sized quantities. While this limitation shows that Lemus lacked unfettered discretion to dispose of the drugs, that is consistent with his participation in a joint venture in which he lacked sole decision-making authority, but in which he played a role directing the transportation of the drugs. “[Vjiewing the evidence in the light most favorable to the prosecution,” Nevils, 598 F.3d at 1164, a rational trier of fact could have found beyond a reasonable doubt that Lemus possessed methamphetamine with intent to sell it. However, Le-mus was convicted of possessing more than 50 grams of methamphetamine, which affects the applicable penalty. We turn now to an assessment of the evidence introduced concerning that quantity determination.

E. The 50 Gram Quantity

Lemus argues that the quantity finding is unsupported by the evidence because there was no drug seized that could be tested for purity to determine whether it contained at least -50 grams of methamphetamine. To prove that the unobserved pound of substance at issue contained at least 50 grams of methamphetamine, the government offered an FBI agent’s testimony concerning the range of purity of methamphetamine previously purchased by the FBI. The agent testified that only four of the approximately 30 controlled purchases made in the Los An-geles area by the FBI from 2008 to 2014 were of below 90% purity.

A pound contains approximately 453 grams. Thus, for there to be 50 grams of methamphetamine in a pound of material, it would need to be slightly over 11% pure. We have previously upheld convictions requiring proof of at least 50 grams of methamphetamine in the absence of the drugs themselves, and hence, in the absence of purity testing, where the jury could infer that the methamphetamine was at least as pure as some actual methamphetamine that could be used for comparison. Thus, United States v. Maciel upheld a conviction for conspiracy to possess with intent to distribute 50 grams or more of methamphetamine in the absence of the actual drugs. 461 Fed.Appx. 610, 615-16 (9th Cir. 2011). The defendant in Maciel offered to supply a pound, and the lowest purity of methamphetamine that had been seized from the stash house involved in the conspiracy was 12%, a pound of which would exceed 50 grams. Id. This case differs significantly from Maciel, however, because the drugs used for comparison here were not connected to Lemus, but instead were from other purchases in the Los Angeles area.

We find analogous authority in the sentencing context, where courts are often called upon to estimate drug quantities. The standards applicable to such estimates are not identical to those applicable to jury findings; they are in some ways more flexible, and in other ways, more restrictive. For purposes of sentencing, quantity need only be proven by a preponderance of the evidence, but “the information which supports an approximation must possess sufficient indicia of reliability to support its probable accuracy,” and the district court must err on the side of underestimating the quantity. United States v. Kilby, 443 F.3d 1135, 1141 (9th Cir. 2006) (quoting United States v. Culps, 300 F.3d 1069, 1076 (9th Cir. 2002)).

In Kilby, the district court based its approximation on tablets of “Foxy” “seized in two unrelated cases from different parts of the country,” with no evidence of a common supplier or evidence that Foxy tablets are always the same approximate size, and where the two samples had quite different weights. Id. at 1142. While noting that we have repeatedly approved approximations “based on facts specific to the defendant’s case,” Kilby held that the district court’s approximation was insufficiently reliable. Id. at 1141-42. By contrast, United States v. Flores, 725 F.3d 1028 (9th Cir. 2013) approved an estimate employing an average pill size consistent with those typically sold by the conspiracy at issue and by the defendant. Id. at 1035-37.

This case is similar to Kilby in that the comparison methamphetamine came from cases that were not tied to Lemus, but different in that the comparison methamphetamine came from Los Angeles, not elsewhere in the country. Unlike in Flores, here, there was no evidence of actual drug quantity from other arms of a conspiracy, and indeed, Lemus was not charged with conspiracy.

These sentencing determination cases are instructive in a general sense, but this case involves a factual determination reached by the jury. In that sense, Maciel, although nonprecedential, remains the closest case, and again, unlike here, the comparison drugs in Maciel were from the conspiracy atissue.

It would be a bridge too far to allow a jury to extrapolate from comparison drugs that were not from activity related to the defendant or a conspiracy in which the defendant is involved. A 90% level of purity would more than suffice to support the jury’s quantity determination, if adequately connected to the drugs concerning which Lemus had constructive possession. However, the government failed to include evidence connecting that purity level to Lemus. Viewing the evidence in the light most favorable to the government, no reasonable factfinder could have determined beyond a reasonable doubt that Lemus possessed more than 50 grams of methamphetamine.

Because the drug quantity finding fails based on insufficient evidence, the government may not retry that issue, and instead must seek resentencing based solely on the basic possession conviction, i.e., pursuant to the statutory range set forth in 2i U.S.C. § 841(b)(1)(C). “The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.” Burks v. United States, 437 U.S. 1, 11, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); see also United States v. Vera, 770 F.3d 1232, 1250 (9th Cir. 2014) (holding that retrial did not violate the Double Jeopardy Clause where reversal based on trial error, distinguishing reversal for insufficient evidence).

II. The District Court’s Decision Not to Declare a Mistrial

A. Legal Standard

We review a district court’s denial of a motion for a mistrial for abuse of discretion. United States v. Dorsey, 677 F.3d 944, 954 (9th Cir. 2012). A cautionary instruction from the judge is generally sufficient to cure any prejudice from the introduction of inadmissible evidence, and “is the preferred alternative to declaring mistrial when a witness makes inappropriate or prejudicial remarks; mistrial is appropriate only where there has been so much prejudice that an instruction is unlikely to cure it.” United States v. Escalante, 637 F.2d 1197, 1202-03 (9th Cir. 1980). A decision to not- declare a mistrial will be reversed only if the improper comment, viewed in the context of the entire trial, more likely than not materially affected the verdict. Dorsey, 677 F.3d at 954.

B. The Remark and the District Court’s Response

Before trial, Lemus moved to exclude any evidence of his membership in MS-13 or any other gang. The district court granted the motion in part, ruling that while evidence of gang membership would be somewhat prejudicial, the prejudice did not outweigh the evidence’s probative value, specifically, as to why “the two parties engaged in a drug transaction, not knowing each other very well at all.” However, the court excluded the name of Lemus’s claimed gang as irrelevant. The district court made clear that because “gang membership is incredibly prejudicial,” its use at trial would be limited to a particular purpose, and that trial would not be opened up to examine the acts of the MS-13 gang.

Despite that ruling, and despite the prosecutor asking “[wjithout telling us the name of the gang, for how long had the informant been a member of the gang before she began cooperating with the FBI?”, the agent responded “Um, I don’t know the exact number of years, but, um, the informant became a member of MS-13 — ,” whereupon the defense immediately objected. The court sustained the objection, instructed the jury to disregard the answer, and directed the prosecutor to ask another question. At the break, the defense moved for a mistrial, arguing that a curative instruction would only highlight the issue.

The government argued that the testimony was “an altogether unfortunate habitual reference ... by someone who makes the reference day in and day out in his work and slipped into it when made.” The government opposed a mistrial, but acknowledged that granting one was within the court’s discretion, and that the court was in a position to assess what remedy was required. The court ruled that its immediate instruction to disregard the testimony, and the instruction it would provide after closing arguments concerning the limited relevance of the gang evidence, were sufficient to cure any prejudice.

Later, one juror informed the court clerk that while she understood the court’s instruction to disregard the testimony, she started thinking about it, and believed that she had read about the case, and knew “all about it.” Counsel discussed with the court that there may have been press about the takedown that occurred in this ease, and the defense stated that one of the articles referred to Lemus with his gang moniker. The court questioned the juror outside of the presence of the other jurors, and the juror reported that she had seen reports covering the sting operation which discussed the global nature of this gang and “the sort of violence” attached to it.

The juror confirmed that she would be able to follow the court’s previous instruction to disregard information about the particular gang, and would be able to follow the forthcoming limiting instruction. The juror confirmed that she did not think that the press reports were relevant to anything, but felt compelled to inform the court that she remembered them. The juror stated that the press reports would not affect her view of the case at all, and that she would disregard them and base her verdict only on the'law and the court’s instructions. Based on that discussion, the court was satisfied that the juror would disregard anything she had read about the gang.

“When the court strikes testimony and gives ... an instruction [to disregard it], there is a strong presumption that the jury has followed the court’s instruction.” United States v. Pavon, 561 F.2d 799, 803 (9th Cir. 1977). “The trial court is in the best position to determine whether an incident merits a mistrial.” United States v. Gardner, 611 F.2d 770, 777 (9th Cir. 1980). That is because “the district court had the opportunity to see and hear the witnesses and to weigh their testimony. It was in a far better position than we to judge the effects of the incidents.” United States v. Love, 535 F.2d 1152, 1157 (9th Cir. 1976).

Here, the district court was well aware of the prejudicial impact that disclosure of the particular gang could have, and previously determined that the risk of prejudice outweighed any probative value of that information. When the FBI agent nonetheless mentioned the name of the gang, the district court immediately sustained the objection and ordered the jury to disregard it. When one juror reported that she had read something about the gang in question, the district court carefully examined the juror to ensure that she could disregard that information in reaching a verdict. Finally, the court gave a closing instruction limiting the jury’s use of the gang information solely to understand the relationship between Lemus and Montano.

Having observed the jury and all of the testimony, and having given considered thought to this issue in light of the entire proceeding, the district court determined that a mistrial was not necessary. The district court did not abuse its discretion in so determining.

CONCLUSION

AFFIRMED in part, VACATED in part, and REMANDED. We VACATE the 50 gram finding and the sentence, which was entered pursuant to 21 U.S.C. § 841(b)(l)(A)(vni). We REMAND for re-sentencing for violation of 21 U.S.C. § 841(a)(1) only.

      . The parties discussed Maciel, an unpublished disposition. We consider it for its persuasive value only.

      . That instruction was: “You have heard evidence that the defendant was a member of a gang. I instruct you that this evidence is admitted only for the limited purpose of ... providing context for the relationship between the Government's confidential informant and the defendant and, therefore, you must consider it only for that limited purpose and not for any other purpose.”


author: RAWLINSON, Circuit Judge: HAWKINS, Circuit Judge,

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Michael Thorvald LAURSEN, Defendant-Appellant.
    No. 14-30244
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted April 6, 2016, Seattle, Washington
    Filed January 30, 2017

      Lynn C. Hartfield (argued), Law Office of Lynn C. Hartfield LLC, Denver, Colorado, for Defendant-Appellant.
    Helen J. Brunner (argued), First Assistant United States Attorney; Annette L. Hayes, United States Attorney; United States Attorney’s Office, Seattle, Washington; for Plaintiff-Appellee.
    Before: MICHAEL DALY HAWKINS, JOHNNIE B. RAWLINSON, and CONSUELO M. CALLAHAN, Circuit Judges.
   Concurrence by Judge HAWKINS

OPINION

RAWLINSON, Circuit Judge:

In this appeal we address whether taking consensual nude “selfies” involving a forty-five-year-old man and a sixteen-year-old girl is sufficient to support a conviction for production and possession of child pornography. We conclude that this evidence was sufficient to support the conviction, and we specifically reject the argument made by defendant Michael Thor-val Laursen (Laursen) that the legality of his sexual relationship with a sixteen-year-old under Washington state law precluded prosecution under federal law.

I. BACKGROUND

A. Investigation of Sexual Abuse and Laursen’s Arrest

In July, 2012, Laursen reported to police that a sixteen-year-old girl, referred to in this opinion as J.B., was being prostituted by her uncles. At the time, J.B. lived with her adoptive father Art Brown. Laursen and J.B. were involved in a consensual sexual relationship, but neither of the two apprised detectives of that fact.

As part of the investigation into the sexual abuse of J.B., Detective Rodriguez met with Art Brown, J.B.’s adoptive father, who produced J.B.’s laptop, cell phone, and cell phone records. A forensic examination of J.B.’s laptop revealed “sexually explicit images” of J.B. and Laursen.

Seven months later, Laursen’s sister Maureen Gonzales contacted Detective Rodriguez after finding a digital camera in her kitchen that belonged to Laursen. The digital camera’s memory card contained sexually explicit photos of J.B. Maureen gave police the digital camera and Laur-sen’s laptop. Maureen acknowledged that Laursen was incarcerated when she gave detectives the digital camera. Detective Rodriguez subsequently obtained a search warrant for the digital camera and for Laursen’s laptop.

A forensic examination of the camera’s memory card revealed an array of photos. Nine pictures on the memory card contained nude images of J.B. Several nonsexual pictures were also on the memory card. The laptop did not contain sexually explicit photos.

On February 21, 2013, detectives interviewed Laursen. Detectives informed Laursen that they knew about the nude photos he had taken with J.B. Laursen initially denied taking the nude photos, but later admitted that he took them. When detectives continued questioning Laursen, he asked detectives to stop recording. Laursen then inquired: “This is what this is about, the pictures we took? I can really get in trouble for the pictures I took with her?”

The answer to Laursen’s question was a definitive yes. Laursen was charged with one count of production of child pornography in violation of 18 U.S.C. §§ 2251(a) and (e). A subsequent indictment added possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2). Laursen waived his right to a jury trial and proceeded to trial before a judge.

B. The Bench Trial

Prior to trial, the district court agreed with Laursen that federal jurisdiction in the case was predicated on “a pretty narrow nexus” because there was “no production of pictures over the Internet here, for example, to third parties or anything like that[.]” Nevertheless, the court ultimately determined that production of child pornography with a cell phone that traveled across state lines satisfied “the federal nexus under 2251 and 2252(a) (sic).”

The government’s case against Laursen focused on two sets of photographs. The first set of photographs was found on the hard drive for J.B.’s Toshiba laptop. The second set of photographs came from the memory card for the digital camera.

J.B.’s testimony was an integral part of the government’s case. She testified that she met Laursen in March, 2012, when she was sixteen, and around the time she suffered a drug relapse. J.B. admitted that her memory of that time period was “pretty cloudy,” and it was hard to remember details. J.B’s and Laursen’s sexual relationship began the second time they saw each other. Their relationship became serious when J.B. ran away from home in July, 2012, and commenced living with Laursen. During this period, J.B. and Laursen interacted intimately in a variety of locations, including motels and the homes of Laursen’s friends and family. When Laursen took J.B. to the police in July, 2012, J.B. told detectives that Laur-sen was her best friend and hero. However, J.B. acknowledged at trial that she often skipped school to see Laursen, obtained drugs from Laursen, and ran away from home because of Laursen’s influence.

J.B. recalled that she took the sexually explicit photographs found on the Toshiba hard drive with her cell phone before a motel room mirror in August, 2012. J.B. identified Laursen as the man standing next to her in the “selfie” photographs. J.B. testified that she took the photographs with Laursen because he told her they “looked good together” and said “he wanted to take pictures.” Although J.B. stated that she did not like “taking pictures like that,” she and Laursen took sexually explicit photographs each time they saw each other. However, J.B. deleted some photographs at Laursen’s request. J.B. transferred the sexually explicit photographs from her cell phone to her Toshiba hard drive days after the photographs were taken. J.B. also sent some of the photographs to Laursen’s cell phone.

J.B. also identified herself in the sexually explicit photographs found on the memory card. J.B. assumed that Laursen took the photographs because her hair was dyed red in the pictures, which was the same time period when she and Laursen were in a relationship and living together. J.B. also identified a red blanket and brown pillow in the picture that she said belonged to Laursen. In addition, J.B. identified the digital camera in evidence as belonging to Laursen because it had a burn mark on it.

J.B. was adamant that she had never taken sexually explicit photos with anyone other than Laursen. J.B. said she lied when she previously told detectives that her uncle recorded her performing sexual acts. She also lied to police when she said that her unclés sexually abused her. The court precluded Laursen from questioning J.B. about her sexual relationships with other men in 2012.

Laursen’s sister Maureen and brother-in-law Adam testified against him at trial. Laursen lived with Maureen and Adam in 2012, and regularly brought J.B. to their home. Maureen and Adam identified the digital camera in evidence as Laursen’s property. In early 2013, Maureen picked up the digital camera from among Laur-sen’s belongings in her kitchen area, and looked through the pictures on the camera. Maureen immediately contacted the police when she saw the nude photos of J.B. Maureen testified that the digital camera had not been stolen, and she only told police it was because Laursen had lied to her. Maureen and Adam identified Laur-sen as the man pictured in the photographs stored on J.B.’s Toshiba hard drive.

To satisfy the jurisdictional element of the offenses, the government called a Toshiba representative who testified that the hard drive in J.B.’s computer was shipped from another country. A Kingston Technology representative similarly testified that the company’s camera memory cards are made in Japan and shipped to California.

In his defense, Laursen presented nude photographs he took of himself and submitted in support of his theory that he was not the man in the photographs submitted by the government. The pictures Laursen submitted showed a scar on Laursen’s left leg that was absent from the man’s leg in one of the photographs submitted by the government. However, there was no evidence presented of when the scar was acquired.

C. The District Court’s Verdict

The district court found J.B. to be “very believable” and credited her “whole story of how these pictures were taken” because her version was corroborated by other evidence. The court also noted that Laursen’s lies to authorities about his sexual relationship with J.B. reflected knowledge that J.B. was a minor.

The court found Laursen guilty of production and possession of child pornography. The court found that Laursen knowingly “used [J.B.] to take part in sexually explicit conduct for the purpose of producing a visual image of such conduct.” The court concluded that Laursen produced or aided and abetted J.B. in producing the photographs, and knew that J.B. was sixteen years old. The court did not consider one of the photographs because of the issue of the scar on Laursen’s leg, and also excluded consideration of one nude photograph that was not clearly pornographic.

The Court additionally determined that Laursen produced the photographs found on his camera’s memory card. Finally, the court ruled that the child pornography was produced and possessed using materials that had been transported in interstate commerce.

At sentencing, Laursen argued that the district court should have dismissed his case due to a lack of jurisdiction, because under state law J.B. was “a young woman of legal consensual age and is therefore, by definition, not a child.” The court overruled his objection and sentenced Laursen to fifteen years’ imprisonment for the production of child pornography, and ten years’ imprisonment for possession of child pornography. The judge told Laursen that the sentence was the only one “available” because the judge was “bound by the law, whether I agree with it or not.” Laursen filed a timely notice of appeal.

II. STANDARDS OF REVIEW

We apply de novo review to the denial of a motion for acquittal predicated on insufficiency of the evidence presented at trial. See United States v. Gonzalez, 528 F.3d 1207, 1211 (9th Cir. 2008). “There is sufficient evidence to support a conviction if, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt....” Id. (citation omitted).

“Following a bench trial, a district court’s conclusions of law are reviewed de novo and findings of fact are reviewed for clear error....” United States v. Temkin, 797 F.3d 682, 688 (9th Cir. 2015) (citation omitted). A challenge to the constitutionality of a federal statute is a question of law reviewed de novo. See United States v. Lujan, 504 F.3d 1003, 1006 (9th Cir. 2007). We also review de novo whether an evidentiary ruling violates a defendant’s constitutional rights. See United States v. Waters, 627 F.3d 345, 352 (9th Cir. 2010), as amended.

III. DISCUSSION

A. Sufficiency of The Evidence

Laursen contends that the government’s evidence was insufficient to support a conviction for production of child pornography in violation of 18 U.S.C. § 2251(a). To secure a conviction under that statute, the government was required to prove beyond a reasonable doubt that: (1) J.B. was a minor (less than eighteen years old); (2) Laursen employed, used, persuaded, induced, enticed, or coerced J.B. to take part in sexually explicit conduct for the purpose of producing a visual depiction of that conduct; and (3) that visual depiction was produced using materials that had been transported in interstate or foreign commerce. See 18 U.S.C. § 2251(a); see also United States v. Sheldon, 755 F.3d 1047, 1049-50 (9th Cir. 2014); Chavez-Solis v. Lynch, 803 F.3d 1004, 1008 (9th Cir. 2015) (stating that the federal statute defines a “minor” as a person under the age of eighteen). Laursen’s challenge regarding the sufficiency of the evidence is limited to the second element: he contends that he did not “use” J.B. to take part in sexually explicit conduct “for the purpose” of producing visual images.

“The question of whether the pictures fall within the statutory definition is a question of fact as to which we must uphold the district court’s findings unless clearly erroneous.... ” United States v. Overton, 573 F.3d 679, 688 (9th Cir. 2009), as amended (citation omitted). The term “use” is not defined in § 2251(a). Thus, traditional rules of statutory interpretation are employed, commencing with the plain and common meaning of the word derived from dictionary definitions. See United States v. Flores, 729 F.3d 910, 914 (9th Cir. 2013). As one might expect, “use” has many definitions, but the most relevant is “to put into action or service [;] to avail oneself of [;] employ.” Merriam-Webster Online Dictionary, http://www.merriam-webster.com/dictionary/use (last visited August 15, 2016). “[T]he ... doctrine of noscitur a sociis — the principle that a word is known by the company it keeps” confirms the plain meaning of the term “use.” Flores, 729 F.3d at 915. Indeed, one of the other means of violating the statute, “employ[ing]” a minor, is listed as a synonym for “use.” Merriam-Webster Online Dictionary, http://www.merriam-webster.com/ dictionary/use (last visited August 15, 2016); see also Bailey v. United States, 516 U.S. 137, 145, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995) (including “employ” as a definition of “use”).

Adopting the plain meaning of the term “use,” we agree with the district court that the evidence presented by the government sufficiently established that Laursen used or employed J.B. to produce sexually explicit images. The pornographic photographs were produced after Laursen told J.B. that the two “looked good together” and that “he wanted to take pictures.” (emphasis added). Importantly, J.B. testified that she did not enjoy taking pornographic pictures. J.B. also deleted pictures at Laursen’s request. This evidence established that Laursen directed J.B.’s actions, at a minimum engaging in active conduct that resulted in the production of child pornography. See Overton, 573 F.3d at 692 (requiring proof of active or coercive conduct). Laursen is correct that there was no evidence presented of physical coercion. However, in view of the disjunctive language contained in Overton, active conduct alone suffices to sustain a conviction under § 2251(a). See id.

Our reasoning is consistent with the rulings of our sister' circuits, which have broadly interpreted the “use” element of the statute. See, e.g., United States v. Sirois, 87 F.3d 34, 42 (2d Cir. 1996) (defining “use” as occurring whenever a minor is the subject of the photography). Recently, the Sixth Circuit adopted the Second Circuit’s interpretation of “use,” similarly holding that this element is “fully satisfied for the purposes of the child pornography statute if a child is photographed in order to create pornography.” United States v. Wright, 774 F.3d 1085, 1090 (6th Cir. 2014) (citation omitted). The Sixth Circuit explicitly rejected Wright’s argument that the statute required proof of coercive conduct. See id. at 1091. The Eighth Circuit also agreed with the Second Circuit that the “use of a minor” element is satisfied even without solicitation or enticement if a defendant photographs a minor. See United States v. Fadl, 498 F.3d 862, 866 (8th Cir. 2007). In addition, the First Circuit recently upheld a defendant’s conviction under § 2251 (a), even though he was in a consensual relationship with a fourteen-year-old, holding that “the statutory definition of ‘use’ is met when a defendant makes a minor the subject of a visual depiction by intentionally photographing the minor engaging in sexually explicit conduct.” Ortiz-Graulau v. United States, 756 F.3d 12, 18-19 (1st Cir. 2014), cert. denied, — U.S. -, 135 S.Ct. 1438, 191 L.Ed.2d 395 (2015).

Although application of the statute in these contexts may lead to harsh results, we echo the persuasive reasoning of the Seventh Circuit that “Congress may legitimately conclude that even a willing or deceitful minor is entitled to governmental protection from self-destructive decisions that would expose him or her to the harms of child pornography.” United States v. Fletcher, 634 F.3d 395, 403 (7th Cir. 2011), as amended (citation and internal quotation marks omitted).

Finally, Laursen’s theory that he was not the man depicted in the photographs is unconvincing. J.B. identified Laursen as the man in the photographs, and testified that no one else took sexually explicit photos of her. Laursen’s sister and brother-in-law also identified Laursen as the man pictured in the photographs. And it was especially telling that Laursen asked detectives: “I can really get in trouble for the pictures I took with her?”

Based on the evidence presented, the district court’s finding that Laursen used a minor in the production of pornography was not clearly erroneous. Viewing the evidence in the light most favorable to the prosecution, there was sufficient evidence to support the district court’s verdict of guilt. See Gonzalez, 528 F.3d at 1211.

B. Constitutional Challenges

Laursen contends that 18 U.S.C. §§ 2251 and 2252A as applied are vague, overbroad, violate the Tenth Amendment, and exceed Congress’ power under the Commerce Clause. These challenges are primarily predicated on Laursen’s belief that his conduct with J.B. was legal under Washington law. The governing Washington statute provides that “[a] person is guilty of rape of a child in the third degree when the person has sexual intercourse with another who is at least fourteen years old but less than sixteen years old and not married to the perpetrator and the perpetrator is at least forty-eight months older than the victim.” Wash. Rev. Code § 9A.44.079. Thus, Laursen’s sexual relationship with J.B. was legal under state law because she was not “less than sixteen years old.” Id. However, a separate Washington statute provides that “[a] person is guilty of sexual exploitation of a minor” if the person “[a]ids, invites, employs, authorizes, or causes a minor to engage in sexually explicit conduct, knowing that such conduct will be photographed ...” Wash. Rev. Code § 9.68A.040. Consequently, in the state of Washington, Laur-sen’s sexual relationship with J.B. was legal but the production of pornography stemming from that relationship was not.

1. Overbreadth Challenge

Laursen asserts that the child pornography statutes at issue are over-broad because he has a protected privacy interest in taking intimate photographs in the course of a consensual sexual relationship. We disagree. A consensual sexual relationship between adults is constitutionally protected. See, e.g., Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972). However, that constitutional protection has not been extended to sexual relationships between adults and children. See, e.g., Lawrence v. Texas, 539 U.S. 558, 578, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (distinguishing cases involving minors). In any event, the prohibited conduct engaged in by Laursen was producing pornographic material involving J.B., not simply engaging in a sexual relationship with her. And the Supreme Court has made it crystal clear that child pornography is not constitutionally protected. See New York v. Ferber, 458 U.S. 747, 763, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). At the same time, the Supreme Court has recognized that protecting children from sexual abuse and exploitation constitutes a particularly compelling interest of the government. See id. at 757, 102 S.Ct. 3348. Given that J.B. was a minor, using her to produce pornography is unquestionably prohibited conduct, and Laursen’s over-breadth challenge fails. See id. at 773, 102 S.Ct. 3348 (explaining that a statute “whose legitimate reach dwarfs its arguably impermissible applications” is not overbroad).

2. Vagueness Challenge

“To avoid being unconstitutionally vague, a penal statute must define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement....” United States v. Schales, 546 F.3d 965, 972 (9th Cir. 2008) (citation and internal quotation marks omitted). A statute is void for vagueness under the Due Process Clause of the Fifth Amendment if it “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement....” United States v. Williams, 553 U.S. 285, 304, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008) (citations and internal quotation marks omitted). We have no doubt that a person of ordinary intelligence would know that 18 U.S.C. § 2251(a) prohibits using a minor to engage in sexually explicit conduct for the purpose of producing a photograph of the sexual conduct, and that § 2252A prohibits possessing child pornography. See id. at 306, 128 S.Ct. 1830. In sum, we are not persuaded that the statutes of conviction are unconstitutionally vague.

3. Tenth Amendment Challenge

Laursen’s Tenth Amendment challenge is premised on the theory that the federal statutes under which he was prosecuted usurp the state’s authority to determine the age of consent for engaging in sexual relations. Laursen relies on the Supreme Court’s recent decision in Bond v. United States, — U.S.-, 134 S.Ct. 2077, 189 L.Ed.2d 1 (2014). In Bond, the Supreme Court invalidated a conviction under the Chemical Weapons Implementation Act for what the court described as a “purely local crime[].” Id. at 2083. The defendant was a microbiologist who sought revenge on a romantic rival by spreading chemicals on the other woman’s car door, mailbox and doorknob. See id. at 2085. The Supreme Court ruled that federalizing this “common law-assault” “would dramatically intrude upon traditional state criminal jurisdiction.” Id. at 2087-88.

We are not convinced that the Supreme Court’s Bond decision dictates a similar outcome in this case. As a preliminary matter, we note that the Supreme Court has accepted the federalization of child pornography crimes by upholding convictions brought under 18 U.S.C. § 2252A. See e.g., Williams, 553 U.S. at 291, 308, 128 S.Ct. 1830. More importantly, the facts of this case differ markedly from the facts in Bond. In this case, the statutes of conviction include an interstate nexus, see, e.g., 18 U.S.C. § 2252(A)(a)(5), whereas in Bond, the defendant was prosecuted for a garden variety assault that is ordinarily prosecuted under state law. See Bond, 134 S.Ct. at 2087-88. For these reasons, we reject Laursen’s Tenth Amendment challenge.

4. Commerce Clause Challenge

It is settled precedent that “Congress could rationally conclude that homegrown child pornography affects interstate commerce, and therefore Congress may regulate even purely intrastate production of child pornography and criminalize its intrastate possession ...” United States v. Sullivan, 797 F.3d 623, 632 (9th Cir. 2015), cert. denied — U.S.-, 136 S.Ct. 2408, 195 L.Ed.2d 783 (June 6, 2016) (citation and internal quotation marks omitted). Therefore, we also reject Laursen’s Commerce Clause challenge. See id.

C. District Court’s Evidentiary Rulings

Laursen argues that he was denied his right to present a defense by the district court’s ruling that testimony relating to J.B.’s sexual relationships with other men was inadmissible. “As amended in 1994, Rule 412 of the Federal Rules of Evidence forbids the admission of evidence of an alleged victim’s sexual behavior or sexual predisposition in all civil or criminal proceedings involving alleged sexual misconduct except under limited circumstances .... ” B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1104 (9th Cir. 2002), as amended (quoting Fed. R. Evid. 412) (internal quotation marks omitted). Admittedly, preclusion of evidence of a victim’s past sexual abuse by others may violate a defendant’s constitutional rights. See LaJoie v. Thompson, 217 F.3d 663, 670 (9th Cir. 2000), as amended. However, Laursen sought to question J.B. about possible sexual abuse by other men to support his theory that he was not the individual depicted in the photographs submitted by the government. The district court’s ruling did not compromise Laursen’s right to present this theory of defense, because Laursen was permitted to ask J.B. if anyone else had taken sexually explicit photographs of her. He also questioned J.B. about her statements to detectives that her uncle photographed her performing'sexual acts. The district court only precluded Laursen from asking whether J.B. had a sexual relationship with someone other than Laursen in 2012. The district court’s ruling was consistent with our precedent because Laursen was “seeking to introduce the evidence as past behavior that was other than the offense charged.” United States v. Yazzie, 59 F.3d 807, 814 (9th Cir. 1995) (emphasis omitted). Further, any error was harmless: there was an abundance of testimony to support the conclusion that Laur-sen was the man depicted in the photographs. See id.

Laursen’s final contention— that the district court abused its discretion in excluding the proffered photograph of his body is unavailing. “If the district court finds that the testimony would waste time, confuse or not materially assist the trier of fact, or be better served through cross-examination or a comprehensive jury instruction, it has the discretion to exclude the testimony.” United States v. Vallejo, 237 F.3d 1008, 1016 (9th Cir. 2001) (citation and internal quotation marks omitted). Excluding the proffered photograph was well within the discretion of the district court. Laursen argued that there was no visible scar on the man in the photographs with J.B. that were offered by the government, while the nude photographs he offered of himself showed a visible scar on his left hip. Nevertheless, there was no evidence presented as to when the scar came into existence. Consequently, the district court did not abuse its discretion in determining that the proffered photograph would not materially assist the judge in his capacity as the trier of fact. See id. at 1016.

IV. CONCLUSION

Sufficient evidence was presented by the government to sustain Laursen’s convictions for the production and possession of child pornography. The fact that Laursen’s sexual relationship with J.B. was legal under Washington law did not legitimize the production and possession of child pornography under state or federal law. Laur-sen’s constitutional challenges lack merit, and the district court’s evidentiary rulings were sound.

AFFIRMED.

HAWKINS, Circuit Judge,

concurring:

Michael Laursen stands convicted of the “use” of a minor to engage in sexually explicit conduct for the purpose of producing visual depictions of that conduct and is currently serving the fifteen-year mandatory minimum sentence the statute requires. The photos in question were taken in the course of an ill-advised, but perfectly legal, relationship Laursen had with a young woman above the age of consent under Washington law. The record shows no evidence that Laursen distributed, transferred or otherwise displayed the images to anyone outside that relationship. In this respect, his situation is no different than the thousands of similar photos taken everyday by seventeen-year-old college students engaged in intimate, consensual relationships. The government admits the theory of prosecution here could be used to prosecute anyone snapping a photo showing consenting individuals engaged in intimacy.

This is where I differ from my friends in the majority. To prevent the statute from being overbroad and unconstitutionally vague, I would adopt a narrower construction of the term “uses” in the statute. The government’s construction implies that one “uses” the minor much as one “uses” a camera to take the photograph, and their mere presence in the photo could suffice. As the majority acknowledges, “uses” has a number of meanings in ordinary language. To me, the one most likely applicable here is: “to take unfair advantage of; exploit.” Use, Dictionary.com, http:// dictionary.reference.com/browse/use (last visited December 13, 2016); see also American Heritage Dictionary College Edition 1331 (2nd ed. 1991) (“to exploit for one’s own advantage or gain”). Although I agree with the majority that “a word is known by the company it keeps,” Flores, 729 F.3d at 915, in my view, the rest of the terms in the statute — employs, persuades, induces, entices or coerces — suggest that the defendant must have exerted some sort of improper influence on the minor for the purpose of producing the visual depiction of sexual conduct.

Whether that something more has been shown here is where I agree with my colleagues. At the time of the relationship, Laursen was forty-five years old and J.B. was only sixteen. While she was above the legal age of consent, this very significant age difference, combined with the other facts of this case — including her vulnerability from an already abusive relationship with her relatives, and evidence demonstrating that Laursen convinced J.B. that he was her “hero” and “mentor,” all the while providing her with drugs and moving her from motel room to motel room and into the homes and bedrooms of strangers — provides sufficient indicia of a coercive or exploitative element to satisfy even the more narrow definition of “uses” I propose here.

Thus, I would require the government to show some “taking unfair advantage of’ the minor to establish “uses” under this statute (where no other statutory element is present), but otherwise I concur in affirming Laursen’s conviction and sentence on the facts of this case.

      . A Selfie is "an image of oneself taken by oneself using a digital camera ..." Merriam-Webster Online Dictionary, http://www. merriam-webster.com/dictionary/selfie (last visited September 22, 2016).

      . The photographs depicted both J.B. and Laursen displaying full frontal nudity and other pornographic poses.

      . The photographs were close-ups of J.B.'s vaginal area, including some photographs displaying blood from menstruation.

      . Section 2251(a) provides in pertinent part: Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in ... any sexually explicit conduct for the purpose of producing any visual depiction of such conduct ... shall be punished as provided under subsection (e), if such person knows or has reason to know that such visual depiction will be transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed, if that visual depiction was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means, including by computer, or if such visual depiction has actually been transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed.
      18 U.S.C. § 2251(a).

      . 18 U.S.C. § 2252A provides in pertinent part:
      (a) Any person who ...
      (5)(B) knowingly possesses, or knowingly accesses with intent to view, any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography that has been mailed, or shipped or transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means, including by computer, or that was produced using materials that have been mailed, or shipped or transported in or affecting interstate or foreign commerce by any means, including by computer ... shall be punished as provided in subsection (b).