No. 20-1128 ___________________________

United States of America

Plaintiff - Appellee

v.

Kevin Allen Lamm, also known as Mike Malone

Defendant - Appellant ____________

Appeal from United States District Court for the District of South Dakota - Sioux Falls ____________

Submitted: November 18, 2020 Filed: July 29, 2021 ____________ Before SHEPHERD, STRAS, and KOBES, Circuit Judges. ____________ KOBES, Circuit Judge.

Kevin Lamm distributed, received, produced, and possessed child pornography using two separate Facebook accounts: one under his name, and the other under the fictitious name Mike Malone. The Government tried to authenticate evidence from Facebook using certified records, but the district court 1 required additional circumstantial evidence tying Lamm to the Malone account before ultimately admitting the evidence. Lamm appeals the district court’s admission of that evidence, as well as the denial of his request to question witnesses at trial. We affirm.

I.

A Homeland Security Special Agent was investigating Jason Jorgenson and his Facebook account for suspected distribution of child pornography. Jorgenson often communicated with two other Facebook accounts, one using the name Kevin Lamm and one using Mike Malone. The agent received certified records from Facebook, which included copies of messages between the three accounts.

Several conversations piqued the agent’s suspicions. On January 9, 2017, Jorgenson received a private message from the Lamm account requesting “pics.” Jorgenson replied asking for an email, and Lamm gave him a Gmail account containing his real first and last name. That email address matched the email Lamm used when he re-registered as a sex-offender in South Dakota in March 2017. 2 The same Gmail account was used to distribute two images of child pornography in January 2017.

On January 12, Lamm messaged Jorgenson: “Did you message me from another profile?” Jorgenson replied, “Jessica Smith. Yes. Safer that way.” The next day, the Malone account sent an image containing child pornography to Jorgenson’s Jessica Smith account. Then in February, Jorgenson sent a message to Lamm telling him to watch the video he had sent to the Malone account. Jorgenson

1 The Honorable Karen E. Schreier, United States District Judge for the District of South Dakota. 2 Lamm also said his Gmail account was associated with a Facebook account in his re-registration. -2- later sent another message to Lamm telling him that he had sent more videos to the Malone account.

Around the same time, Jorgenson told T.B., a 14-year-old girl from Indiana, to message the Malone account. T.B. asked the Malone account user what he looked like. The user responded with pictures of Kevin Lamm in a black Nike cap, which were identical to photos posted on both the Malone and Lamm accounts. T.B. also received another picture of Lamm making a peace-sign hand gesture with a distinctive lamp in the background. On January 12, the Malone account asked T.B. to send him pictures and T.B. responded with multiple child pornography images.

The agent suspected that Lamm was behind the Malone account. That was bolstered by subscriber information in the certified records from Facebook. Both accounts were associated with a cell phone number belonging to a Verizon account in Kevin Lamm’s name, and the two accounts displayed identical or similar photographs of Lamm making the same hand gestures