No. 21-1186 ___________________________

United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Devion Marquette Cumbie

lllllllllllllllllllllDefendant - Appellant ____________

Appeal from United States District Court for the Eastern District of Arkansas - Central ____________

Submitted: December 17, 2021 Filed: March 17, 2022 ____________ Before LOKEN, SHEPHERD, and STRAS, Circuit Judges. ____________ LOKEN, Circuit Judge.

A jury found Devion Marquette Cumbie guilty of production and attempted production of child pornography and extortion. Cumbie appeals, arguing the district court1 erred in (1) prohibiting the defense from cross examining a government witness

1 The Honorable James M. Moody, Jr., United States District Judge for the Eastern District of Arkansas. with extrinsic evidence of a text message in which he allegedly confessed to the charged crimes; (2) denying challenges to the government’s peremptory strikes under Batson v. Kentucky, 476 U.S. 79 (1986); and (3) not striking a juror who expressed safety concerns prior to deliberations. We affirm.

I. The Evidentiary Issue

A six-count indictment issued in July 2019 charged Cumbie with production of child pornography in violation of 18 U.S.C. § 2251(a) and extortion in violation of 18 U.S.C. § 875(d). The trial ended in a mistrial when the jury failed to reach a unanimous verdict. A seven-count superseding indictment issued in June 2020 charged Cumbie with three counts of attempted production and production of child pornography committed against three minor female victims, and four counts of extortion committed against two of those victims and two adult female victims. After a second trial, the jury found Cumbie guilty of all seven counts.

At both trials, the government introduced evidence that Cumbie created a fake Facebook account in September 2018 impersonating Chink Capone, an internet celebrity and comedian. Cumbie allegedly used the account to solicit nude photographs and videos from the female victims, and then threatened the victims that he would post their photos on the internet if they did not cooperate by sending more explicit content. At both trials, Cumbie’s defense was that Eric Primeaux -- who lived with Cumbie in the fall of 2018 -- had access to his cell phone and password and sent the illegal messages.

Prior to the first trial, defense counsel advised government counsel that Sasi Cervantes-Cumbie, Cumbie’s girlfriend in the fall of 2018 and now his wife (hereafter referred to as “Sasi” for convenience), had provided counsel with screenshots of more than one hundred text messages exchanged between Sasi and

-2- Primeaux’s cell phone from November 7, 2019, to January 29, 2020. They included this December 7 text message purporting to be from Primeaux to Sasi:

I wanna be honest with you and no secrets between us I’m the reason devion got charged with child porn I was using his phone and a fake account to get pictures and sell them but since he’s getting charged we can be together and work on us On February 10, 2020, the government filed a motion in limine to preclude Sasi from offering this testimony because it is inadmissible hearsay. The government argued:

On January 31, 2020, [FBI Special Agent Aaron] Hurst interviewed Mr. Primeaux [who] vehemently denied sending the text message. Mr. Primeaux stated that [Sasi] asked to use his cellular telephone and m