United States v. Garron Gonzalez , 826 F.3d 1122 ( 2016 )

United States Court of Appeals
For the Eighth Circuit
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No. 15-2127
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Garron Gonzalez
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of North Dakota - Bismarck
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Submitted: March 18, 2016
Filed: June 27, 2016
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Before MURPHY, BEAM, and GRUENDER, Circuit Judges.
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BEAM, Circuit Judge.
Garron Gonzalez was convicted of attempted sexual exploitation of minors in
violation of 18 U.S.C. § 2251(a) and (e). Gonzalez appeals, seeking a new trial or a
judgment of acquittal alleging that the district court1 abused its discretion by granting
1
The Honorable Daniel L. Hovland, United States District Judge for the District
of North Dakota.
the jury's request during deliberations to listen to an audio recording that was
admitted in evidence but not played at trial. For the reasons discussed below, we
affirm.
I. BACKGROUND
In December 2010, while Gonzalez was on probation in North Dakota, his
probation officer, Duane Johnson, scheduled an office visit with him for December
15, 2010. Johnson arranged the meeting so that a detective from Mandan, North
Dakota, could speak with Gonzalez regarding another case. When Gonzalez missed
the scheduled meeting, Johnson went to Gonzalez's home to meet with him and search
his home (a condition of Gonzalez's release). During the search of Gonzalez's home
and vehicle, Johnson seized two cell phones after a preliminary search of the phones
"sparked [Johnson's] curiosity" and showed a potential violation of Gonzalez's
probation. When questioned about the contents of the phones, Gonzalez admitted
that he had been communicating with a fifteen- or sixteen-year-old girl, later
identified as AG. Gonzalez was found to be in violation of the terms of his probation
and was arrested.
The following day, December 16, 2010, a further search of the phones revealed
a series of text messages between Gonzalez and AG, including two pictures of her
genitalia and backside. The case was then referred to Special Agent Helderop with
the Department of Homeland Security. North Dakota Bureau of Criminal
Investigations Special Agent Harstad retrieved the pictures and text messages sent
between Gonzalez and AG from the two confiscated cell phones. At trial, AG
testified that she was fifteen-years-old when she met Gonzalez online through a video
game. Gonzalez and AG exchanged numbers through the video game and began text
messaging and talking on the phone. When Gonzalez asked AG's age, she told him
she was sixteen. Eventually, Gonzalez and AG began discussing sexual acts and
sending pictures of themselves, some of which were nude. AG testified that she did
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not initiate sending the nude pictures. Rather, she sent the nude pictures because
Gonzalez made her feel comfortable, gave her lots of attention, and asked for the
pictures. She also noted that Gonzalez would put money on her phone so that they
could continue text messaging each other.
After AG was cross-examined at trial, the government offered into evidence
a copy of AG's audio-recorded interview with Detective Brandt from January 2011.
Gonzalez specifically stated that he "ha[d] no objection" to the admission of the
recording. The recording was never played during trial. Before the case was given
to the jury, both parties' counsel and the court discussed whether the jury would be
allowed to listen to the recorded interview. Gonzalez argued that although the
recording was admitted in evidence, the jury could not listen to it during deliberations
because it was not "published" in open court. The court held that because the
recording "ha[d] been received in evidence . . . if they want[ed] to listen to it, they
[were] entitled to listen to it." Gonzalez's main concern was that the jury would listen
to only part of the interview. Thus, to prevent such action by the jury, the court, in
agreement with both parties, decided that if the jury asked to hear the recording, the
judge would bring the jury back into the courtroom, have them sit in the jury box, and
play the entire interview in the presence of the court, both parties' counsel, and
Gonzalez.
Soon after deliberations began, the jury requested to hear the recorded
interview of AG. The jury was brought into the courtroom, and the audio recording
was played in open court according to the procedures that had been previously agreed
upon. Gonzalez did not object. The jury deliberated for approximately thirty-five
minutes after hearing the recorded interview and returned a unanimous guilty verdict.
On appeal, Gonzalez argues that by permitting the jury to listen to the audio recording
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of AG's interview after the case had been argued and submitted to the jury, the district
court improperly reopened the trial.
II. DISCUSSION
"It is within the sound discretion of the trial court to determine whether to
allow a jury to review properly admitted testimony or recordings during
deliberations." United States v. Jefferson, 725 F.3d 829, 836-37 (8th Cir. 2013)
(quoting United States v. Muhlenbruch, 634 F.3d 987, 1001-02 (8th Cir. 2011)). We
generally review a district court's response to a jury request for abuse of discretion.
United States v. Faul, 748 F.2d 1204, 1218 (8th Cir. 1984). When a party has failed
to object to the issue now on appeal, however, we review the decision for plain error.
United States v. Jones, 662 F.3d 1018, 1027 (8th Cir. 2011).
The issue of whether the district court erred by permitting the jury to listen to
the recorded interview with AG appears to have been waived. See Jefferson, 725
F.3d at 836-37; Jones, 662 F.3d at 1027. In Jefferson, the defendant failed to object
to the playing of seven recorded phone calls discussed during the trial, and thus, this
court stated the issue was "affirmatively waived." 725 F.3d at 836-37. In Jones, the
defendant voiced his concerns about allowing the jury to listen to parts of wiretap
tapes but never formally objected to the play-back and ultimately "assisted in devising
the method by which the jury would hear the tapes." Jones, 662 F.3d at 1027. Thus,
we held that Jones had waived his right to challenge the playing of the tapes. Id.
Similarly, Gonzalez never objected to the admission of the recorded interview of AG
at trial. At the conclusion of the trial, Gonzalez noted some concerns about the jury
listening to only parts of the audio recording without court oversight. However, after
the court stated that the jury was entitled to listen to the admitted audio recording,
Gonzalez assisted the court in reaching the decision to play the entire recording in
open court with both parties present if the jury requested to hear it during
deliberations. There were no objections prior to, during, or after the recording was
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played. Thus, Gonzalez affirmatively waived his right to challenge the playing of the
audio recording.
Waiver aside, the district court did not abuse its discretion, much less commit
plain error, by allowing the jury to listen to the audio-recorded interview. "It is
within the sound discretion of the trial court to determine whether to allow a jury to
review properly admitted testimony or recordings during deliberations."
Muhlenbruch, 634 F.3d at 1001-02. The audio recording was properly admitted in
evidence, and Gonzalez "waive[d] any foundational objections." Gonzalez also
specifically stated that he "ha[d] no objection" to the admission of the recording.
Thus, the district court properly determined, within its discretion, that the jury could
listen to the received audio recording using the agreed-upon procedures.
Finally, to the extent Gonzalez challenges the sufficiency of the evidence, we
disagree. When reviewing the sufficiency of the evidence for a judgment of acquittal,
we "view[] the evidence in the light most favorable to the guilty verdict, resolving all
evidentiary conflicts in favor of the government, and accepting all reasonable
inferences supported by the evidence." United States v. No Neck, 472 F.3d 1048,
1052 (8th Cir. 2007). "A motion for judgment of acquittal should be granted only 'if
there is no interpretation of the evidence that would allow a reasonable jury to find
the defendant guilty beyond a reasonable doubt.'" United States v. Cacioppo, 460
F.3d 1012, 1021 (8th Cir. 2006) (quoting United States v. Gomez, 165 F.3d 650, 654
(8th Cir. 1999)). AG's testimony regarding her communication with Gonzalez,
coupled with the inappropriate photographs of AG recovered from Gonzalez's cell
phones, provide sufficient evidence for a reasonable jury to find Gonzalez guilty
beyond a reasonable doubt. This is not one of those rare cases where we may
overturn the jury's guilty verdict.
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III. CONCLUSION
The judgment of the district court is affirmed.
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