ROBERT W. PRATT, Chief Judge.
Before the Court is Ted Grauer's ("Defendant") Combined Motion for Judgment
On September 14, 2010, a grand jury returned a superseding indictment that charged Defendant with one count of attempted enticement of a minor to engage in illicit sexual activities, in violation of 18 U.S.C. § 2422(b) ("Count 1"), two counts of distribution of child pornography, in violation of 18 U.S.C. § 2252(a)(2) ("Counts 2 and 3"), and one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) ("Count 4"). Clerk's No. 17. On May 31, 2011, Defendant stood trial on these charges. Clerk's No. 108. The lawyers for both parties presented On June 3, 2011, the jury returned verdicts of guilty on Counts 1 and 4, and not guilty on Counts 2 and 3. Clerk's No. 121. At the close of the Government's case-in-chief, and again at the close of all the evidence, Defendant moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. See Trial Tr.
Defendant now renews his motion for judgment of acquittal on Counts 1 and 4. Regarding Count 1, Defendant argues that the Government failed to present sufficient evidence that he believed Jenny
In the alternative, Defendant requests a new trial, pursuant to Federal Rule of Criminal Procedure 33. See id. ¶ 12. Defendant claims he is entitled to a new trial because the jury's verdicts on Counts 1 and 4 were against the weight of the evidence, and because the Court made several erroneous evidentiary rulings that combined to deprive him of a fair trial. See Def.'s Br. at 5. In response, the Government argues that there was sufficient evidence to support the jury's verdicts, the verdicts were consistent with the weight of the evidence, and that the Court's evidentiary rulings were correct. See Gov'ts Resp. at 6-8.
This Court must enter a judgment of acquittal if the evidence presented
In considering a motion for judgment of acquittal based on the sufficiency of the evidence presented at trial, the Court must "view the evidence in the light most favorable to the guilty verdict, giving the government the benefit of all reasonable inferences that may be drawn from the evidence." United States v. Basile, 109 F.3d 1304, 1310 (8th Cir.1997). The Court can overturn the jury's verdict only if "`a reasonable fact-finder must have entertained a reasonable doubt about the government's proof'" on one or more of the essential elements of the crime charged. United States v. Kinshaw, 71 F.3d 268, 271 (8th Cir.1995) (quoting United States v. Nunn, 940 F.2d 1128, 1131 (8th Cir.1991)). "This standard applies even when the conviction rests entirely on circumstantial evidence." United States v. Davis, 103 F.3d 660, 667 (8th Cir.1996). In reviewing the evidence presented to the jury, it is important to note that "`[t]he evidence need not exclude every reasonable hypothesis except guilt.'" United States v. Baker, 98 F.3d 330, 338 (8th Cir.1996) (quoting United States v. Erdman, 953 F.2d 387, 389 (8th Cir.1992)). Finally, it is not the Court's role to weigh the evidence or assess the credibility of witnesses, as these tasks belong to the jury alone. See United States v. Ireland, 62 F.3d 227, 230 (8th Cir.1995) (observing that the jury has the role of judging the credibility of witnesses and resolving any contradictions in the presented evidence).
To gain a conviction for a violation of § 2422(b), the Government must prove beyond a reasonable doubt that Defendant:
United States v. Young, 613 F.3d 735, 742 (8th Cir.2010) (quoting United States v. Pierson, 544 F.3d 933, 939 (8th Cir.2008), cert. denied ___ U.S. ___, 129 S.Ct. 2431, 174 L.Ed.2d 229 (2009)). An attempt to commit an offense occurs when a defendant
Defendant's claim that there was insufficient evidence to establish his belief that Jenny was under eighteen has little merit. "To prove knowledge, prosecutors often use circumstantial evidence because direct evidence of such scienter is seldom available." United States v. Londondio, 420 F.3d 777, 786 (8th Cir.2005) (citing United States v. Thropay, 394 F.3d 1004, 1006 (8th Cir.2005)). At trial, the Government introduced numerous chat-logs in which Jenny explicitly informed Defendant that she was fourteen. See Trial Tr. at 40, 63. Further, many of the chat-logs featured statements by Defendant indicating his belief that Jenny was fourteen, including examples of him questioning her about the extent of her sexual experience given her young age, and discussing his concern about her mother uncovering their relationship. See id. at 62, 136, 322. Finally, the Government entered into evidence a telephone call between Defendant and a female officer posing as Jenny, in which Defendant states: "You know you sound a little bit older than 14, not too much, but a little bit older than 14." See Gov't Ex. 12. Defendant argues that these statements merely show he was engaged in role-play with Jenny, not that he actually believed she was fourteen. While that is a possible interpretation of the evidence, the jury did not reach that conclusion. Instead, the jury determined that Defendant meant what he said, and that his statements established beyond a reasonable doubt that he believed Jenny was under eighteen. Viewing the evidence in the light most favorable to the Government, the evidence was sufficient to support the jury's conclusion.
With regard to Defendant's attempted enticement, the appropriate inquiry focuses on the intended effect of Defendant's statements to Jenny, rather than on Defendant's actual intent to engage in sexual activity. See Pierson, 544 F.3d at 939 ("The government need not prove that the defendant intended to participate in a physical sexual act. It is sufficient for the government to prove that the defendant intended to persuade or entice a minor to engage in illegal sexual activity."). Here, the chat-logs submitted by the Government are replete with instances of Defendant asking Jenny if she would like to engage in sexual activity with him. See Trial Tr. at 127, 322, 343. Defendant also sent Jenny sexually explicit photographs, a "grooming"
To sustain a conviction for a violation of § 2252(a)(4)(B), the Government must prove beyond a reasonable doubt that Defendant "knowingly possess[ed] an item of child pornography, and [that] the item [was] transported in interstate or foreign commerce by any means." United States v. White, 506 F.3d 635, 641 (8th Cir.2007). The defendant's knowledge must be established "both to the sexually explicit nature of the material and to the age of the performers." United States v. X-Citement Video, Inc., 513 U.S. 64, 78, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994). On the verdict form, the jury specifically identified eight files located on Defendant's computer that it determined contained child pornography. See Clerk's No. 121 at 4. Defendant argues that there was insufficient evidence to establish that he knew the individuals in these images and/or videos were minors.
As an initial matter, there is no dispute that the Government presented sufficient evidence to establish that the individuals in many of the images found on Defendant's computer were actually minors. The Government offered expert testimony from Dr. Careyana Brenham, who testified that, based on the sexual development of the subjects contained therein, at least seven of the files submitted on Count 4 contained minors. See Trial Tr. at 242-49. Additionally, the Government presented evidence that the subjects in two of the files had been identified as minors by the National Center for Missing and Exploited Children. See id. at 203, 307. Nevertheless, Defendant argues that this evidence was only sufficient to establish that the material actually contained minors, not that he had knowledge of this fact.
Defendant's argument appears to rest on the mistaken assumption that, to sustain his conviction, the Government must present direct evidence of Defendant's knowledge. See Def.'s Br. at 3. ("The jury must have improperly used evidence of actual age ... to convict the Defendant of the possession as alleged in Count 4...."). However, the Government is under no such obligation; instead, the jury can reasonably infer knowledge from the circumstances surrounding the offense. See United States v. Ruiz, 412 F.3d 871, 886 (8th Cir.2005). Here, Defendant's mere possession of sexually explicit images containing individuals as young as nine years old
Federal Rule of Criminal Procedure 33 provides: "Upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." The district court is granted broad discretion in passing upon motions for new trial, and its decision is subject to reversal only for a clear abuse of discretion. See United States v. Bass, 478 F.3d 948, 951 (8th Cir.2007) (quoting King v. Davis, 980 F.2d 1236, 1237 (8th Cir.1992)). Unlike a motion for judgment of acquittal, the Court need not view the evidence in the light most favorable to the Government when considering a motion for a new trial. Rather, in assessing whether Defendant is entitled to a new trial on the ground that the verdict is contrary to the weight of the evidence, "the district court weighs the evidence and evaluates anew the credibility of the witnesses to determine if a miscarriage of justice may have occurred." Davis, 103 F.3d at 668; United States v. Lanier, 838 F.2d 281, 284-85 (8th Cir.1988) (per curiam). As the Eighth Circuit Court of Appeals explained in United States v. Rodriguez:
812 F.2d 414, 417 (8th Cir.1987).
The Eighth Circuit has also warned that the authority to grant a Rule 33 motion for new trial "should be used sparingly and with caution." Lincoln, 630
Defendant argues that he is entitled to a new trial in the interest of justice because the jury's verdicts on Counts 1 and 4 were against the weight of the evidence and because several erroneous evidentiary rulings by the Court deprived him of a fair trial. Def.'s Mot. ¶¶ 12-18. With respect to the weight of the evidence, Defendant makes essentially the same arguments as he did in his motion for acquittal. As for the evidentiary rulings, Defendant claims that the Court first erred by excluding testimony from two proposed experts, Dr. Craig Rypma and Counselor Patrick Mc-Donald. Defendant next asserts that the Court erred by failing to conduct a pretrial review of the images offered by the Government and that this failure ultimately resulted in the submission of materials to the jury on Count 4 that did not meet the statutory definition of sexually explicit conduct, as well as admission of numerous images that were irrelevant, cumulative, and prejudicial. The Court will address these arguments in turn.
Defendant argues that even if the Court finds sufficient evidence exists to sustain the jury's verdicts on Counts 1 and 4, it should grant him a new trial because "the evidence preponderates sufficiently heavily against the verdict[s] that a serious miscarriage of justice may have occurred...." Def.'s Mot. ¶ 18 (quoting Lincoln, 630 F.2d at 1319). Specifically, Defendant argues that the verdicts were the result of "improper inferences from the jury that the Defendant must have believed he was talking to a 14-year-old girl based on her statement that she was 14, and that he knowingly possessed child pornography because the individuals in the images look young." Def.'s Br. at 4. The Government responds by pointing to the numerous statements made by both Defendant and Jenny about her age, and by noting that it was appropriate for the jury to infer Defendant's knowledge from the conclusive evidence establishing the young ages of some of the individuals in the images possessed by Defendant.
With respect to Count 1, the Court finds that the weight of the evidence supports the jury's verdict. Not only did Jenny tell Defendant that she was fourteen, but Defendant made numerous statements indicating his belief that she was fourteen. See Trial Tr. at 40 (Jenny telling Defendant she is fourteen), 343 (Defendant telling Jenny to erase her Internet history so her mother does not catch her); 108, 321-22 (Defendant stating that the police arrest guys that—like him—try to have sex with underage girls). The only evidence to the contrary was from Defendant's expert, Dr. Herriot. However, while Dr. Herriot did testify that the chatlogs were consistent with Internet fantasy role-play, Dr. Herriot was unable to state whether Defendant was actually participating in such role-play, or instead believed he was actually talking to a fourteen-year-old girl. See Trial Tr. at 493-94. Knowledge, like anything else, may be proved
Regarding Count 4, the Court again finds that the verdict is consistent with the weight of the evidence. As an initial matter, the Court notes that it is not improper, as Defendant alleges, for a jury to infer that a defendant knew individuals in images were minors simply because they looked young. Cf. United States v. Rayl, 270 F.3d 709, 714 (8th Cir.2001) (stating that jury could make its own conclusions about age of individuals by looking at images); United States v. Lantz, No. CR-2-08-015, 2009 WL 1107708, at * 4 (S.D.Ohio Apr. 22, 2009) (slip copy) (finding that jury could infer defendant's knowledge that individuals in images were real children from circumstantial evidence). However, in this case, the Government offered additional evidence establishing that at least two of the electronic files contained identified minors, expert testimony that other subjects featured in the materials found on Defendant's computer were underage, and chat-logs establishing Defendant's interest in pornography depicting "young" looking girls. See Trial Tr. at 203, 307 (testimony that girl in one of the images found on Defendant's computer was nine, and stipulation that individual in "Melissa video" was a minor); 242-49 (testimony from Doctor Brenham that many of individuals in the material found on Defendant's computer were minors); 171-72 (Defendant stating he thought an image of a girl that "was pretty young" was "sexy"). The Court acknowledges that the Defendant's expert witness, Dr. Arlan Rosenbloom, raised legitimate concerns about the methodology and conclusions of the Government's expert by testifying that it was not possible to determine the ages of individuals by only looking at their sexual development. See Trial Tr. at 537-38. However, even assuming that the jury found Dr. Rosenbloom's testimony more credible than the Government's expert, in light of the fact that two of the files undisputedly contained minors, and several of the other images contained subjects that, in the Court's view, looked quite young, the Court is satisfied that the jury's ultimate conclusion that Defendant knowingly possessed child pornography is consistent with the weight of the evidence.
Erroneous evidentiary rulings can be the basis for a new trial if the rulings affected a defendant's substantial rights or had more than a slight influence on the verdict. See United States v. Honken, 381 F.Supp.2d 936, 1005 (N.D.Iowa 2005) (citing United States v. Mack, 343 F.3d 929 (8th Cir.2003) and United States v. Crenshaw, 359 F.3d 977, 1003 (8th Cir.2004)). Here, the evidentiary rulings that Defendant complains of were fully litigated prior to trial. See Clerk's Nos. 75 (Order granting Government's Motion in Limine to exclude Defendant's proposed experts), 89 (Order denying Defendant's Motion in
Defendant provided notice that he intended to call two expert witnesses, Dr. Rypma and Counselor McDonald, to testify as to various problems that Defendant was having in his personal and professional life, how these problems affected his mental state, and how his Internet use was symptomatic of his mental state.
Defendant's next asserted error is that the Court admitted pornographic images that were not submitted to the jury on Count 4, and were thus cumulative, irrelevant, and prejudicial. Although not entirely clear which images Defendant is complaining of, to the extent that they are the pornographic images that he sent to Jenny, these images were relevant to Count 1 because they showed Defendant's attempt to entice. See United States v. Chambers, 642 F.3d 588, 593 (7th Cir.2011) (finding the fact that defendant sent pornography to a minor relevant to show his intent to entice the minor into sexual activity). To the extent that Defendant is instead
Finally, Defendant argues that the Court failed to conduct a pretrial review of the images offered by the Government, and that this ultimately resulted in a video being submitted on Count 4 that did not meet the statutory definition of sexually explicit conduct. With respect to the images that were submitted only on Count 4, the Court acknowledges that it should have reviewed them prior to trial.
Defendant claims the "Melissa video" does not satisfy the statutory definition of sexually explicit conduct. See Def.'s Mot. ¶ '6. Sexually explicit conduct is defined as, among other things, "lascivious exhibition of the genitals or pubic area." See 18 U.S.C. § 2256(2)(A)(v). "`A depiction of a child is a lascivious exhibition of the genitals when the child is nude or partially clothed, when the focus of the depiction is the child's genitals or pubic area, and when the image is intended to elicit a sexual response in the viewer.'" United States v. Kain, 589 F.3d 945, 951 (8th Cir.2009) (quoting Rayl, 270 F.3d at
In the "Melissa video," a minor plays on a playground while wearing a skirt. At one point, she hangs upside down exposing her genitals, and while she hangs, the camera zooms in to show a close up of her exposed genitals. The camera's focus on her genitals appears to serve no legitimate purpose other than to elicit a sexual response. See United States v. Kemmerling, 285 F.3d 644, 646 (8th Cir.2002) (finding image elicited a sexual response when it was not designed "for instance, simply to provide a clinical view of the portions of the children's anatomy"); see also Horn, 187 F.3d at 790 (finding "lascivious exhibition of the genitals" when video contained freeze frames on a girl's exposed genitals while she played on a jungle gym). Thus, consistent with Johnson, the Court is satisfied that the "Melissa video" meets the definition of "lascivious exhibition of the genitals." Accordingly, Defendant is not entitled to a new trial based on the Court's refusal to review the images found on his computer prior to trial as this error was harmless.
For the reasons discussed above, Defendant's Motion for Acquittal and a New Trial (Clerk's No. 123) is DENIED.
IT IS SO ORDERED.