United States v. Ted Grauer ( 2012 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 11-3852
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Ted H. Grauer
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Southern District of Iowa - Davenport
____________
Submitted: September 21, 2012
Filed: December 10, 2012
____________
Before LOKEN and MURPHY, Circuit Judges, and JACKSON,* District Judge.
____________
LOKEN, Circuit Judge.
After a four-day trial, a jury convicted Ted H. Grauer of attempted enticement
of a minor to engage in illicit sexual activity in violation of 18 U.S.C. § 2422(b), and
possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). He was
*
The Honorable Carol E. Jackson, United States District Judge for the Eastern
District of Missouri, sitting by designation.
acquitted on two counts of distributing child pornography. The district court1
sentenced him to 151 months in prison on the attempted enticement count and a
concurrent 120 months on the child pornography possession count. Grauer appeals,
arguing: (1) prosecutorial misconduct in cross examining a defense expert and in
rebuttal closing argument that deprived him of a fair trial; (2) insufficient evidence
to convict him of possessing child pornography; and (3) procedural sentencing error
in calculating the advisory guidelines range for the attempted enticement count,
namely, imposing the two-level enhancement for misrepresenting his identity
authorized in U.S.S.G. § 2G1.3(B)(2). We affirm.
I. Background
On January 21, 2010, Deputy Sheriff Jessup Schroeder, a member of the Iowa
Internet Crimes Against Children Task Force, logged onto the Yahoo! Messenger
chat system posing as Jenny Johnston, a 14-year-old girl from Clinton, Iowa, using
the screen name lil_jenny_gurl13. Grauer, using the screen name horserancher2,
entered the Iowa Romance chatroom and began chatting with “Jenny.” Their lengthy
chats continued until April 9, 2010. In the first chat, Jenny told Grauer she was a 14-
year-old from Clinton. About an hour later, in recounting a recent sexual relationship
with a college girl, Grauer bragged, “Well she liked me. And I am like 49. She wants
me to come back and see her one of these days.” Grauer was in fact 58 years old. He
also told Jenny that his last name was Gray. When asked about his job, he initially
told Jenny he was a consultant. He later claimed to be an engineer who designs
“energy stuff” to “save the earth.” He also told Jenny he was married and had a son
and sent her several pictures of himself.
1
The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.
-2-
As the chats progressed, they became sexually explicit. Grauer claimed to have
several young girlfriends: one who he can only see once every two weeks and “2 or
3” others, including an 18-year-old student at the University of Iowa. On March 8 and
March 25, Grauer sent links to images of young-looking males and females engaged
in various sexual acts, including sexual intercourse. He frequently chatted about
being “inside” of Jenny and engaging in oral, vaginal, and anal sex. He also claimed
to have spoken with women who had sex at Jenny’s age who told him that “it was a
wonderful thing.” On April 7, two days before he traveled to Clinton to meet Jenny,
he claimed to have spoken to a girl Jenny’s age in a different chat room who was
having sex with an older man that was “a wonderful thing for her.”
During a five-hour chat on April 1, Grauer transmitted a webpage of “cute
girls” he found at jailbaitgallery.com. He asked Jenny if they could engage in anal
sex after telling her to bring up images depicting that act. They exchanged phone
numbers and agreed to meet in Clinton on April 9, 2010, near the Mississippi River
floodgates. He told her they would bike along the river “and find someplace where
we can be alone,” describing a progression of sexual activity and meetings two or
three times a month. On April 9, Grauer drove from his home in Van Meter to
Clinton, sending messages along the way that were intercepted by law enforcement
officers. When he reached the arranged meeting place, he sent a message telling
Jenny to come meet him. The police then approached and arrested him, finding in his
vehicle a fleece blanket he had purchased that morning. A warrant search of his home
yielded a laptop computer containing images and videos the jury ultimately found to
be child pornography. This prosecution followed.
II. The Prosecutorial Misconduct Issues
A. Cross Examination of Dr. James Herriot. Grauer’s first defense witness at
trial was Dr. James Herriot, who holds a Ph.D. in human sexuality from the Institute
for the Advanced Study of Human Sexuality in San Francisco. Dr. Herriot testified
-3-
that internet chat rooms thrive on anonymity and are primarily an entertainment
medium where adults engage in fantasy “age-play,” which he described as role-
playing in which one adult plays an older person and the other a young person, “often
the naughty schoolgirl.” Dr. Herriot testified that he had reviewed transcripts of the
chats between Grauer and Jenny and opined that they had many of the “signatures”
of adult age-play. During cross examination, Dr. Herriot was asked:
Q. You have never testified in a case for the defense or for the
government where a person was charged with chatting with an actual
minor on the Internet?
A. . . . [N]o actual minors. It is all adults. Adults talking to
adults. . . .
* * * * *
Q. . . . You have never interviewed someone who was charged
with meeting . . . an actual minor on the Internet and engaged in internet
chat in a chat room and then traveled to meet with that minor?
A. No . . . I have not, no.
Q. So you really don’t know what the culture of Internet chat is
for people who actually are looking for minors and meet them?
A. Well . . . it’s either rare or nonexistent. It is extremely rare as
far as we know from our research. It is adults talking to adults is the --
the main thing going on here.
To impeach Dr. Herriot’s opinion that adults looking to find and meet actual minors
online is “rare or nonexistent,” the prosecutor then asked whether Dr. Herriot was
aware of a specific case from the Southern District of Iowa:
-4-
So you’re not aware of a case that arose here in Davenport where a
subject named Fronczak met a 13-year-old girl here in Davenport and
traveled here from California, picked her up, took her to a motel, and
had sex with her, you don’t know about that case?
Defense counsel did not object. Dr. Herriot answered, “if it was in the newspapers
I may have read about it.” When the prosecutor began his next question, “So you
don’t know about the case of the 13 year old in Burlington, Iowa, that met a man
online . . .,” defense counsel objected that the question was beyond the scope of his
direct examination, argumentative, and irrelevant. The district court overruled the
objection. Dr. Herriot answered, “it sounds like it is similar to some case that I saw
in the newspapers.” When the prosecutor then asked if Dr. Herriot was familiar with
a third local case, the district court overruled Grauer’s Rule 403 objection. The court
sustained his objection to a question about a fourth case as cumulative.
Grauer argues that this line of questioning was improper because it argued facts
not in evidence and “was clearly calculated to inflame the jury.” Reviewing the
district court’s evidentiary rulings for abuse of discretion, we disagree. See, e.g.,
United States v. Hull, 419 F.3d 762, 770 (8th Cir. 2005) (standard of review), cert.
denied, 547 U.S. 1140 (2006). The cross examination was highly probative. Dr.
Herriot’s testimony on direct examination tended to support a primary defense to the
enticement charge -- that Grauer believed his Internet chats with “Jenny” were with
an adult. It was relevant to establish on cross examination that Dr. Herriot’s
experience was limited to cases in which defendants chatted with undercover law
enforcement officers posing as minors. Rather than simply admit this fact, Dr.
Herriot embellished his credibility with the remarkable assertion that a highly relevant
situation that was beyond his personal experience -- adults using internet chat rooms
to entice actual minors to engage in sexual activity -- was “rare or nonexistent.” It
was not improper for the prosecutor to impeach Dr. Herriot by asking if he was aware
of actual cases known to the prosecutor (and to the district court) that disproved this
-5-
assertion. See United States v. Pierson, 544 F.3d 933, 940-41 (8th Cir. 2008), cert.
denied, 129 S. Ct. 2431 (2009). Nor did the district court abuse its discretion by
overruling Grauer’s objections to this line of questioning until it became cumulative.
Thus, Grauer’s contention that the district court committed plain error by not granting
a mistrial sua sponte is without merit.
B. Closing Argument. The prosecutor stated during initial closing argument:
I told you, make no mistake about it, this is a dangerous man, and
he proved it. He proved it the day he got in that car and he packed all
his stuff and he drove to Clinton, Iowa.
In Grauer’s closing argument, defense counsel responded:
[Y]ou know from looking at these chats that that week it was raining in
Clinton, Iowa. . . . So the ground is saturated. And I am going to take
this fleece blanket that is going to soak up water like a sponge and drop
it on the ground and go do my thing with a 14-year-old girl in public.
It is patently ridiculous. It is a fantasy. . . . [I]f I am going to do that,
doesn’t it make a heck of a lot more sense to do it in a hotel, a motel,
you know, ride your bike over to the Motel 6 . . . you don’t even have to
go in through the hallway, nobody will see you.
The prosecutor returned to this issue in rebuttal:
[Defense counsel] says that the smarter approach here is to go to
a motel. . . . It is a terrible idea. He’s -- you heard Dr. Herriot. These
stories are on the news. You don’t go pick up a 13 year old and take her
to a motel. Those are the guys getting arrested.
Daniel Fron[cz]ack flew from Pennsylvania, picked up a girl in
Muscatine . . . had sex with her got caught, got arrested, got sent away.
-6-
. . . Justin Carter met a girl on the Internet. [Objection by Grauer
overruled.]
Justin Carter, you heard about him. You get the point. Why is he
buying a cheap fleece blanket if he’s meeting an adult female. Because
he’s going to throw it away when he’s done.
The rebuttal argument concluded:
You’re the conscience of this community as the Judge told you.
You’ve had to see terrible things, disgusting things. It is time for
justice. Thank you.
Grauer argues this rebuttal improperly argued facts regarding Fronczak and
Carter that were not in evidence. He asserts that the prosecutor’s closing argument
was “so egregious, suggestive, and inflammatory [that it] infected the entire trial.”
We disagree. “The trial court has broad discretion in controlling closing arguments
and without a clear showing of abuse, that discretion will not be overturned.” United
States v. Franklin, 250 F.3d 653, 660 (8th Cir.) (quotation omitted), cert. denied, 534
U.S. 1009 (2001). In closing argument, “a prosecutor is entitled to make a fair
response and rebuttal when the defense attacks the government’s case.” United States
v. Ziesman, 409 F.3d 941, 954 (8th Cir.) (quotation omitted), cert. denied, 546 U.S.
990 (2005).
Here, it was not an abuse of discretion for the district court to allow the
government in rebuttal to respond to defense counsel’s argument that Grauer would
have gone to a motel, rather than a public bike trail, if he had intended to have sex
with a minor. The rebuttal included only a brief reference to prior cases that Dr.
Herriot had acknowledged on cross examination. Nor was it improper for the
prosecutor to conclude his closing argument by stating that the jury acts as the
“conscience of the community,” as the district court had stated during voir dire.
-7-
“Unless calculated to inflame, an appeal to the jury to act as the conscience of the
community is not impermissible.” United States v. Sanchez-Garcia, 685 F.3d 745,
753 (8th Cir. 2012) (quotation omitted). The concluding statement that the trial had
compelled the jury “to see terrible things, disgusting things,” was fair comment on the
trial evidence. There was no error, plain or otherwise, in the district court’s control
of the closing arguments in this hard-fought trial.
III. Sufficiency of the Evidence
Following Grauer’s arrest, police conducted a warrant search of his home and
seized a Hewlett Packard laptop computer from an office area in the home. A
forensic computer examiner found numerous images and videos depicting suspected
child pornography in user-created electronic folders. Count 4 of the superseding
indictment charged him with knowing possession of child pornography in violation
of 18 U.S.C. § 2252(a)(4)(B). At trial, Grauer stipulated that one video depicted a
minor, and the government presented testimony that other images and videos depicted
minors. Eight images and seven videos were submitted to the jury on Count 4,
identified by the electronic file names found on Grauer’s computer. The jury
unanimously found that three images and five videos were child pornography that
Grauer knowingly possessed on April 9, 2010, the day of his arrest.
On appeal, Grauer argues the evidence was insufficient to convict him of
“knowing” possession of child pornography because the government presented no
evidence as to how the images came to be on his computer or when they were
accessed. “We review a challenge to the sufficiency of the evidence de novo, viewing
evidence in the light most favorable to the government, resolving conflicts in the
government’s favor, and accepting all reasonable inferences that support the verdict.”
United States v. Koch, 625 F.3d 470, 478 (8th Cir. 2010) (quotations omitted).
-8-
Grauer’s wife testified that he operated a business from his home office, that
he kept a Hewlett Packard laptop where he worked that looked like the laptop seized
by police, and that no one else used his laptop regularly. This was sufficient evidence
that he constructively possessed the child pornography found on his computer
following his arrest. See United States v. Acosta, 619 F.3d 956, 960-61 (8th Cir.
2010), cert. denied 131 S. Ct. 1618; United States v. Kain, 589 F.3d 945, 950 (8th
Cir. 2009). Evidence that multiple images of child pornography were found in
electronic folders manually created by the computer’s user, as in this case, is
sufficient evidence of knowing possession to support a § 2252(a)(4)(B) conviction.
Koch, 625 F.3d at 478. In addition, the government presented evidence that some
images found on Grauer’s computer were identical to images he had transmitted to
“Jenny,” and that he told Jenny during their numerous chats that he hid images of
topless girls on his hard drive so his wife would not find them. Viewed in the light
most favorable to the verdict, the evidence was more than sufficient for a reasonable
jury to find, beyond a reasonable doubt, that Grauer knowingly possessed visual
depictions of minors engaging in sexually explicit conduct in violation of
§ 2252(a)(4)(B).
IV. The § 2G1.3(b)(2)(A) Enhancement
To determine Grauer’s advisory guidelines range, the Presentence Investigation
Report (PSR) calculated the total offense level separately for each count of
conviction. For the attempted enticement count, the PSR added to the base offense
level of 28 a two-level enhancement under § 2G1.3(b)(2)(A) because “the offense
involved the knowing misrepresentation of a participant’s identity to persuade,
induce, entice, coerce, or facilitate the travel of, a minor to engage in prohibited
sexual conduct.” For the child pornography possession count, the PSR added to the
base offense level of 18 enhancements totaling 19 levels, including a 7-level increase
under § 2G2.2(b)(3)(E) for distribution of material intended to entice a minor to
engage in prohibited sexual conduct. This made the possession count “the Group
-9-
with the highest offense level,” resulting in a total offense level of 38 under § 3D1.4
and an advisory guidelines range of 235 to 293 months in prison. Grauer objected to
the § 2G1.3(b)(2) and § 2G2.2(b)(3)(E) enhancements.
At sentencing, the district court sustained Grauer’s objection to the
§ 2G2.2(b)(3)(E) enhancement, which meant that the attempted enticement count,
which also entailed a mandatory minimum ten-year sentence, became the Group with
the highest offense level for advisory guidelines purposes. As to this count, the court
overruled Grauer’s objection to the § 2G1.3(b)(2) enhancement, explaining:
Whether those misrepresentations were made with the intent to
entice is the more difficult question.
* * * * *
The defendant . . . argues that his minor misrepresentation about
his age, in this case more or less than 10 years, was not instrumental [a
word used in United States v. Starr, 533 F.3d 985, 1002 (8th Cir.), cert.
denied, 555 U.S. 1079 (2008)]. However, the Court finds the analysis
in Star[r] does not seem applicable here because it focuses on the effect
the misrepresentation had on the victim. Here, of course, there was no
real victim. In Young the [Eighth Circuit] applied this enhancement
reasoning that the defendant had lied about his occupation. He said he
was an engineer, not a band teacher, after the “girl” had told him she
hated band. He also lied and told her he wasn’t married when he was.
The Court found that the misrepresentations were made with the
requisite intent and thus applied the enhancement. The Court applies the
enhancement.
This finding resulted in a combined total offense level of 34 and an advisory
guidelines range of 151-188 months in prison. Grauer urged the court to impose the
mandatory minimum sentence of 120 months. The government urged a sentence “in
the middle of the range.” After carefully weighing the 18 U.S.C. § 3553(a)
-10-
sentencing factors, the court sentenced Grauer to 151 months in prison, the bottom
of the advisory range.
On appeal, Grauer raises only one sentencing issue, arguing that the district
court erred in applying the two-level misrepresentation enhancement under
§ 2G1.3(b)(2)(A). The application note to this guideline provides:
The misrepresentation to which the enhancement in subsection (b)(2)(A)
may apply includes misrepresentation of a participant’s name, age,
occupation, gender, or status, as long as the misrepresentation was made
with the intent to persuade, induce, entice, coerce, or facilitate the travel
of, a minor to engage in prohibited sexual conduct.
§ 2G1.3(b)(2)(A), comment. (n.3(A)). Grauer concedes that he misrepresented his
name and age in his chats with “Jenny” but argues the misrepresentations were not
made with the requisite intent. As with other Guidelines enhancements that require
similarly fact-intensive findings, we review for clear error the district court’s finding
that Grauer knowingly misrepresented his identity with the intent to persuade, induce,
or entice a minor to engage in prohibited sexual conduct. See United States v. Baker,
200 F.3d 558, 562 (8th Cir. 2000) (obstruction of justice); United States v.
Telemaque, 934 F.2d 169, 170-71 (8th Cir. 1991) (targeting official victims); accord
United States v. Simonson, 244 F. App’x 823, 826 (9th Cir. 2007).
Pointing out that we quoted Starr’s use of the word “instrumental” in United
States v. Young, 613 F.3d 735, 748 (8th Cir. 2010), cert. denied, 131 S. Ct. 962(2011),2 Grauer argues that his one-time misrepresentations of his age (“like 49,”
2
We agree with the district court that Grauer’s focus on the word
“instrumental” is misplaced. The enhancement applies if the misrepresentation was
intended to entice a minor victim, regardless of its effect on the victim. Thus, while
the enhancement is warranted when the misrepresentation was in fact “instrumental”
in persuading a minor to engage in prohibited sex, as in Starr, 533 F.3d at 1002, it
-11-
instead of 58) and his name (“Gray,” instead of Grauer) “were not dramatic enough
to have made a substantial difference” in his effort to persuade a minor victim to
engage in sexually explicit conduct. He notes, quite correctly, that he told Jenny he
was old enough to be her father and sent her pictures of himself that confirmed their
age differential, unlike defendants in the cases on which the government relies, who
made age misrepresentations clearly aimed at overcoming a minor’s reluctance to
engage in sex with an older man. See United States v. Watkins, 667 F.3d 254, 264
(2d Cir. 2012) (after telling minor female he was 38 when he was in fact 48,
defendant said, the day before they had vaginal intercourse, “it’s only [a] twenty years
[age difference], it’s common for couples”); United States v. Holt, 510 F.3d 1007,
1009-11 (9th Cir. 2007) (45-year-old male chatting online with a 13-year-old female
claimed to be a 19-year-old college student).
If the sole focus of our inquiry was on Grauer’s single age misrepresentation
in his initial chat with Jenny -- “like 49” -- we would have significant doubt whether
that representation was made with the intent to entice that the § 2G1.3(b)(2)(A)
enhancement requires, given other disclosures that revealed he was indeed an older
man. But the enhancement is inclusive, applying to all identity misrepresentations
made with the requisite intent, including but not limited to those relating to “name,
age, occupation, gender, or status.” App. Note 3(A). The district court clearly
recognized the breadth of this inquiry when it relied for its ruling on our decision in
Young, where we upheld the enhancement based upon defendant’s misrepresentation
of his occupation and his marital status. 613 F.3d at 749. Here, Grauer
misrepresented his age in recounting a recent sexual relationship with a college girl
who “liked me.” He initially told Jenny he was a consultant but later claimed to be
an engineer who designs “energy stuff” to “save the earth.” Over the course of their
Internet relationship, Grauer claimed to have several young girlfriends who enjoyed
may also apply in cases where it had no such effect, such as Young, where the
“victim” was an undercover police officer, as in this case.
-12-
sexual activity with him. Two days before he traveled to meet Jenny, he claimed to
have chatted with a girl Jenny’s age who said that having sex with an older man was
“a wonderful thing.” The record reflects a lengthy, carefully orchestrated attempt by
a much older man to persuade and entice a minor female to engage in prohibited
sexual conduct. The district court, having heard lengthy trial testimony regarding the
nature and purpose of Grauer’s chats, was in the best position to find whether he
made one or more identity misrepresentations with the intent that warranted the
§ 2G1.3(b)(2)(A) enhancement. After careful review of the record, we cannot say the
court’s finding in this regard was clearly erroneous.
The judgment of the district court is affirmed.
______________________________
-13-