Tuesday, December 18, 2012

Eighth Circuit holds testimony that adults rarely seek actual minors online can be impeached, affirms conviction

In United States v. Grauer, No. 11-3852 (8th Cir. 2012), the Eighth Circuit affirmed the conviction of a man for enticement of a minor and possession of child pornography over multiple arguments from the defendant.

As part of an ICAC investigation, an Iowa deputy sheriff, pretending to be a 14-year-old girl, engaged in multiple instant messaging conversations with the defendant. The conversations were often of a sexual nature and involved the defendant sending pornography to the "girl," and the two ultimately decided to meet. The defendant was arrested, his home searched, and child pornography found. Charges for the child pornography possession and attempted enticement of a minor followed, and he was convicted.

At trial, the defense presented a witness who argued that adults often used chat rooms to engage in "age-play" online, where one of the participants pretends to be a "schoolgirl," but both are actually adults. As such, it was likely that the defendant actually believed the 14-year-old girl was an adult (he actually lied about his age - saying he was 49 rather than his actual age of 58). The doctor-witness testified that "it's either rare or nonexistent" for adults to actually seek minors online. The prosecutor then asked the witness if he was aware of multiple cases involving that activity, and he acknowledged hearing of them. The first wasn't objected to, the defense objected to the second and it was overruled, and an objection to a third and fourth case were sustained. On appeal, the defendant argued the questioning was improper and intended to inflame the jury, but the court disagreed as it was necessary to disprove the assertion.

The defendant also argued that the evidence presented on the child pornography charges was insufficient because "the government presented no evidence as to how the images came to be on his computer or when they were accessed." However, at trial, the defendant's wife testified that the laptop was used in his home office and "that no one else used his laptop regularly." Evidence was also shown that the multiple images were stored on folders created manually on the computer, and several of them had been sent over instant messaging to the "girl." As such, the Eighth Circuit found the evidence to be sufficient.

A sentencing enhancement was applied for "misrepresentation[s] ... made with the intent to persuade, induce ... the travel of, a minor to engage in prohibited sexual conduct." The defendant argued that despite his misrepresentations of his name and age, it was not made with the requisite intent. However, the Eighth affirmed the application of the enhancement, finding that the district court "was in the best position" to decide the issue, and it "was [not] clearly erroneous."


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