United States v. Nathan Nosley ( 2023 )

United States Court of Appeals
For the Eighth Circuit
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No. 22-1182
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United States of America
Plaintiff - Appellee
v.
Nathan Nosley
Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: October 20, 2022
Filed: March 17, 2023
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Before LOKEN, GRUENDER, and GRASZ, Circuit Judges.
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GRUENDER, Circuit Judge.
Nathan Nosley appeals his convictions and sentence of 1,680 months’
imprisonment for seven counts of child-exploitation and child-pornography
offenses, violations of 18 U.S.C. §§ 2251, 2252, and 2252A. Specifically, he
challenges the jury selection, the jury instructions, the sufficiency of the evidence,
and the reasonableness of the district court’s 1 sentence. We affirm.
I.
Nosley was tried in June 2021. With the parties’ consent, a magistrate judge2
presided over jury selection. Before administering the oath, the magistrate judge
explained the importance of remaining impartial and asked the prospective jurors to
be frank about their opinions and experiences. After the oath, the magistrate judge
read a statement of the case so that the prospective jurors knew that Nosley faced
charges of sexually exploiting minors and of distributing, receiving, possessing, and
accessing child pornography. Voir dire then proceeded, conducted by the magistrate
judge, with additional questions from the parties. The questions probed the jurors’
abilities to hear and evaluate disturbing evidence, their experiences serving on juries,
and their inclinations or disinclinations to believe victims and law enforcement.
Several prospective jurors expressed concerns over having to view and hear
disturbing facts involving sexual exploitation of children. 3 One of them, Juror 1,
said at a sidebar that she doubted whether she could be objective because her
daughter had been sexually assaulted. She said she was “hopeful” that she could,
but that it was “close.” The court allowed the parties to ask her additional questions.
In response to the Government’s questions, Juror 1 said that she would try to separate
the facts of Nosley’s case from the facts of her daughter’s experience and that she
would follow the instructions of the court. Nosley’s counsel then asked Juror 1 if
she would be more likely to believe victims of abuse, to which she responded “yes”
1
The Honorable C.J. Williams, United States District Judge for the Northern
District of Iowa.
2
The Honorable Mark A. Roberts, United States Magistrate Judge for the
Northern District of Iowa.
3
For simplicity, we designate the three relevant jurors as Juror 1, Juror 2, and
Juror 3.
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and that it would be difficult and “very personal” for her to impartially consider
testimony. Nosley’s counsel then moved to strike Juror 1 for cause. The magistrate
judge permitted the Government to ask follow-up questions of Juror 1. To those,
Juror 1 responded that she would be able to take the law as given by the court and
apply it to the facts of the case. She added that she would judge witness credibility
based on the facts and that she would not give special weight to the credibility of
law enforcement simply by virtue of their status as officers. The magistrate judge
also rehabilitated the juror:
The Court: But it’s important that you’re going to be able to see
all the evidence in this case, that you’re going to be
fair and impartial, and that’s what you are signing
up for. Are you going to be able to do it, even if it’s
difficult?
Juror 1: Understood, yes.
The magistrate judge denied Nosley’s motion to strike Juror 1 for cause.
Voir dire continued. Nosley’s counsel prefaced a question about impartiality
with a description of the anticipated evidence at trial, including images and videos
of child exploitation:
So you’re going to have to try to think right now, based on knowing
yourself, “If I see these images, is that going to create a physical
response for me where I’m not able to view the evidence or I can’t
discuss the evidence with the other people here, because I’m triggered
for whatever reason.” Your trigger could be fainting. It could be a
panic attack. It could be anger. It could be depression. There’s all
sorts of emotions that you might have when that’s—if that’s presented
in court. So I guess how many people feel like it would be difficult for
you to be on this jury knowing that that may be the content that
ultimately comes into evidence?
A few of the prospective jurors were visibly uncomfortable or upset. Juror 2
answered, “If I have to see images like that or videos, that will repulse me.”
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Defense Counsel: Okay. And then I would assume that if that were the
case, you wouldn’t be able to remain fair and
impartial?
Juror 2: Correct.
A similar exchange occurred with Juror 3:
Defense Counsel: . . . And, [Juror 3], you also mentioned this being
difficult for you as well?
Juror 3: Yeah, I have a young granddaughter that I would
have a hard time dealing with that I think.
Defense Counsel: Okay. And I guess the same follow-up question, if
you saw something like that, would it -- and you
couldn’t get that out of your mind, would you be
able to be fair and impartial at that point?
Juror 3: No, I don’t believe so.
The magistrate judge then interjected and attempted his own rehabilitation of the two
jurors. With Juror 3, the following exchanged occurred:
The Court: [T]he real question is, not just that it would be
difficult for you to see those images and it might
have some personal effect on you for some time
after you’ve seen the images, but my question is, are
you going to be able after having seen those images
to recognize that, yes, you might be having some
sort of visceral response to having seen those
images, that everybody is going to have to some
extent some of those, but are you going to be able
to put those out of your train of judgment and be
what you are supposed to be in this case, which is a
trier of the facts and determine whether, in fact, the
government has proven the elements of its case and
not just go with your gut? . . .
Juror 3: Probably.
The magistrate judge similarly rehabilitated Juror 2.
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Nosley moved to strike Juror 2 and Juror 3 for cause, arguing that Juror 2 had
appeared visibly perturbed and that both jurors said they could not be fair. During
argument on the motion, the magistrate judge emphasized to Nosley’s counsel the
different framing of their respective questions and explained why he interjected
when he did. The magistrate judge “took [the jurors] responses” as indicating that
“they would be able to put [their visceral reactions] aside and be able to view the
evidence based on the facts” and be fair and impartial. The magistrate judge denied
the motions with leave to reconsider if Nosley’s counsel wished to ask additional
questions of the jurors. Counsel declined to do so. Ultimately, Nosley used his
peremptory challenges to remove Juror 1 and Juror 2. Juror 3 was empaneled.
Trial proceeded, and the Government presented testimony from two victims
(R.A. and A.S.), two investigators, and Nosley’s ex-girlfriend. The victims testified
that at the time of the relevant conduct, R.A. was thirteen years old and A.S. was
sixteen. Both testified to having sexually explicit communications on Snapchat with
a user called “Pdogg,” which later testimony showed was Nosley. In these
communications, Nosley expressly asked each victim for nude and sexually explicit
pictures. Both girls testified that they sent him many such pictures, including ones
of their genitals. Both identified numerous sexually explicit videos and pictures that
they took of themselves and sent to Nosley. These videos and pictures were found
on devices owned by Nosley and sent from his Gmail account. Both victims also
testified that Nosley sent them sexually explicit content, including pictures of his
penis and videos of him masturbating.
Two investigators then testified. In addition to their testimony about finding
videos and pictures on Nosley’s electronic devices and his Gmail account, they
testified about a November 2020 interview they conducted with him. A recording
of this interview was admitted into evidence. In the interview, the investigators
showed Nosley images of R.A. and A.S. Nosley admitted that he asked both for
pictures of themselves but maintained that it was consensual.
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Later, Nosley’s ex-girlfriend testified about her relationship with Nosley and
about her daughter. The Government had already introduced, under Federal Rule of
Evidence 414, communications from Nosley to his ex-girlfriend in which Nosley
described twice engaging in oral sex with her daughter. When asked about these
communications, she testified that she was upset after Nosley was acquitted in state
court for charges based on his alleged sexual contact with her daughter. She felt that
there were still unanswered questions and wanted more information about the
allegations.
At the close of evidence, Nosley moved for judgment of acquittal on all counts
under Federal Rule of Criminal Procedure 29. He argued that there was insufficient
evidence to support them. The district court denied his motion, and the jury returned
guilty verdicts on each count. Accounting for statutory maximums, the court
calculated the advisory sentencing guidelines range as 1,680 months’ imprisonment
(otherwise the guidelines range would have been life imprisonment). The court
sentenced Nosley to 1,680 months’ imprisonment.
Nosley appeals. Specifically, he challenges the district court’s failure to strike
Jurors 1, 2, and 3 for cause; the district court’s refusal to instruct the jury on a
mistake-of-fact defense as to his knowledge of the victims’ ages; the district court’s
denial of his motion for judgment of acquittal on Count I (production of child
pornography) and Count II (distribution of child pornography); and the substantive
reasonableness of his sentence.
II.
First, we address Nosley’s argument that the district court erred during jury
selection by not disqualifying jurors who expressed concern with their ability to be
fair and impartial in light of the expected subject matter of the trial. We review the
denial of a motion to strike a juror for cause for abuse of discretion. United States
v. Farrington, 42 F.4th 895, 899-900 (8th Cir. 2022). Fact findings of juror
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impartiality are “entitled to special deference and may be overturned only for
manifest error.” United States v. Nelson, 347 F.3d 701, 711 (8th Cir. 2003).
The Sixth Amendment guarantees a defendant the right to trial “by an
impartial jury.” “Impartiality is presumed so long as the jurors can conscientiously
and properly carry out their sworn duty to apply the law to the facts of the particular
case.” United States v. Wright, 340 F.3d 724, 733 (8th Cir. 2003) (internal quotation
marks omitted). Although Nosley’s motions to strike Jurors 1 and 2 for cause were
denied, he used his peremptory challenges to remove both. Peremptory challenges
“are but one . . . means to the constitutional end of an impartial jury and a fair trial”;
they are not a constitutionally protected right in themselves. Georgia v. McCollum,
505 U.S. 42, 57 (1992). Thus, a defendant is not deprived of his rights when he uses
peremptory challenges to strike a juror that the district court should have removed
for cause. See United States v. Martinez-Salazar, 528 U.S. 304, 307 (2000); United
States v. Johnson, 495 F.3d 951, 964-65 (8th Cir. 2007). For the Sixth Amendment,
the ultimate inquiry remains the impartiality of the petit jury. Nelson, 347 F.3d at
710. We therefore focus only on the denial of Nosley’s motion to strike Juror 3, who
actually sat on the jury that found Nosley guilty.
Reversal of a refusal to strike a juror is a “high hurdle” to clear in light of the
impartiality presumption because “a party seeking to strike a venire member for
cause must show that the prospective juror is unable to lay aside his or her
impressions or opinions and render a verdict based on the evidence presented in
court.” Moran v. Clarke, 443 F.3d 646, 650 (8th Cir. 2006). “Essentially, to fail
this standard, a juror must profess his inability to be impartial and resist any attempt
to rehabilitate his position.” Id. at 650-51.
Jurors are not robots. They are not required to suppress all emotional or
visceral reactions to troubling facts. Instead, they are called upon to be impartial
despite those reactions, even while they may acknowledge that doing so may be
difficult. See Moran, 443 F.3d at 651. “To hold that the mere existence of any
preconceived notion as to the guilt or innocence of an accused, without more, is
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sufficient to rebut the presumption of a prospective juror’s impartiality would be to
establish an impossible standard.” Murphy v. Florida, 421 U.S. 794, 800 (1975).
“An initial impression about a case does not disqualify a juror if the district court
accepts the juror’s assurances that he or she will set aside any preconceived beliefs
and follow the court’s instructions.” United States v. Barraza, 576 F.3d 798, 803
(8th Cir. 2009). In recognition of this, we have held that a juror’s emotional reaction
to seeing images of child pornography does not necessarily render that juror unable
to be fair and impartial or establish that the juror’s objectivity has been
compromised. See United States v. Spotted Horse, 914 F.3d 596, 602 (8th Cir. 2019)
(discussing the standard for replacing a juror with an alternate).
More broadly, we have affirmed refusals to strike jurors for cause where the
jurors expressed only general uncertainty or reservations about their ability to be
impartial, like their difficulty in dealing with the subject matter of a case or their
general disapproval of the kind of criminal activity alleged, rather than specific
biases in favor of certain witnesses or against the defendant. See, e.g., Johnson, 495
F.3d at 964; United States v. Jones, 865 F.2d 188, 190 (8th Cir. 1989); Barraza, 576
F.3d at 801-04. In Johnson, we affirmed the denial of a challenge to a juror who
stated that “his empathy for the victim’s family and the fact that the crime involved
children could affect his judgments about the case” because the district court
ultimately concluded that those statements “reflected the reasonable self doubts of a
conscientious and reflective person.” 495 F.3d at 964 (internal quotation marks
omitted). In Jones, we found no abuse of discretion in a district court’s refusal to
strike a juror who expressed having difficulty with “the whole subject of drugs”
because she “fe[lt] very strongly, raising teenagers.” 865 F.2d at 190. We noted
that the juror “would try to base her decision on the evidence, but honestly did not
know if her feelings would influence the way in which she viewed the evidence.”
Id. And in Barraza, a case involving the murder of a five-year old, we found no
abuse of discretion in a district court’s refusal to strike a juror who had “described
his sense of parental responsibility” and how it might affect his ability to hear the
evidence. 576 F.3d at 801-04.
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Here, the magistrate judge conducted extensive voir dire, and the parties had
ample opportunity to examine the jurors. Throughout the process, the magistrate
judge took care to rehabilitate wavering jurors by focusing them on what they were
being asked to do as jurors—listen to the evidence and fairly and impartially judge
the facts. Juror 3 expressed possibly having difficulty in dealing with the subject
matter of child exploitation because he had a young granddaughter. Yet there was
no indication that the granddaughter herself or anyone else in his family had been
exploited. Instead, Juror 3’s reservations were of a more general nature. He did not,
for example, express a willingness to favor law-enforcement testimony or appear to
harbor specific feelings against Nosley. See United States v. Nelson, 277 F.3d 164,
201-03 (2d Cir. 2002) (holding that the district court abused its discretion by failing
to strike a juror who, after expressing disappointment that the defendant was not
convicted in state court, said that he “would like to think” of himself as objective but
that he “[h]onestly . . . [didn’t] know” (alterations in original)). We are satisfied that
the issue of interpreting Juror 3’s “probably” was “one of demeanor and credibility.”
See United States v. Blom, 242 F.3d 799, 806 (8th Cir. 2001). Ultimately, the
magistrate judge accepted Juror 3’s responses as indicating that he would be able to
put aside his visceral reactions and impartially consider the evidence. On this record,
that finding was not “manifest error,” and the court did not abuse its discretion in
refusing to remove Juror 3. See Nelson, 347 F.3d at 711.
Nosley counters that Juror 3’s “probably” was insufficient assurance of his
ability to be fair and impartial. He appears to rely on United States v.
Sithithongtham, although he does not cite it in his brief. See 192 F.3d 1119, 1120-
21 (8th Cir. 1999). In that case, three prospective jurors said that they would tend
to favor law-enforcement testimony. When pressed by the judge, one managed to
say that he “could probably be fair and impartial.” Id. at 1121. We indicated that in
light of the jurors’ specific biases in favor of law-enforcement testimony, stronger
assurances of impartiality were needed and that “‘[p]robably’ is not good enough.”
Id. We ultimately held, however, that regardless of the district court’s refusal to
remove the jurors for cause, there was no reversible error because Sithithongtham
used his peremptory strikes to remove them. See id. at 1123. We therefore doubt
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that Sithithongtham’s statement about the juror’s use of the word probably was
necessary to the holding of the case. See Passmore v. Astrue, 533 F.3d 658, 661 (8th
Cir. 2008).
Nonetheless, on its merits, Nosley’s Sithithongtham-like argument fails for
two reasons. First, the juror-impartiality inquiry cannot be reduced to magic words
read from a transcript. Context matters, as the above cases show. A “probably”
from a juror in one case may mean something entirely different than a “probably”
from another. One could convey sufficient assurance, while another might express
hesitation and doubt. Which is the proper interpretation will depend on the particular
juror’s answers in light of the voir dire as a whole. And the district court “is in the
best position to analyze the demeanor and credibility of a venireman.” Johnson, 495
F.3d at 964. Its “appraisal [of impartiality] is ordinarily influenced by a host of
factors impossible to capture fully in the record, such as a prospective juror’s
inflection, sincerity, demeanor, candor, body language, and apprehension of duty.”
United States v. Tsarnaev, 595 U.S. ---, 142 S. Ct. 1024, 1034 (2022) (internal
quotation marks omitted). Accordingly, we “afford substantial deference to the
district court” and will affirm its rulings on juror bias where the decision is fairly
supported by the record. See Nelson, 347 F.3d at 710. And second, Sithithongtham
involved jurors who expressed specific biases in addition to uncertainty about their
ability to overcome them, which necessitated stronger assurances of their
impartiality. In contrast, Juror 3 expressed no specific biases in favor of government
witnesses. See Barraza, 576 F.3d at 803-04 (noting a similar distinction from
Sithithongtham). Rather, his discomfort was of a more general nature and related to
the disturbing subject matter of child exploitation and child pornography. For these
reasons, we find no abuse of discretion here.
III.
Next, we address Nosley’s challenge to the district court’s refusal to instruct
the jury that the Government was required to prove that he had knowledge of the age
of the victims for Count I (production of child pornography). He seeks a new trial.
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“We review for abuse of discretion the district court’s formulations of jury
instructions.” United States v. White Calf, 634 F.3d 453, 456 (8th Cir. 2011). Nosley
asks that we overrule our decision in United States v. Wilson, which recognized that
18 U.S.C. § 2251(a) contains no scienter requirement as to the victim’s age and that
mistake of age is not a defense to charges of producing child pornography in
violation of § 2251(a). See 565 F.3d 1059, 1066-69 (8th Cir. 2009); see also United
States v. Moreira-Bravo, 56 F.4th 568, 573-74 (8th Cir. 2022) (discussing Wilson).
But “[i]t is well-established in our circuit that one panel cannot overrule an opinion
filed by another panel.” United States v. Bearden, 780 F.3d 887, 896 (8th Cir. 2015).
Nosley cites no intervening Supreme Court precedent that “cast[s] into doubt”
Wilson. See McDonough v. Anoka Cnty., 799 F.3d 931, 941 (8th Cir. 2015). We
therefore reject his argument and find no abuse of discretion in refusing to give his
requested instruction.
IV.
We now turn to Nosley’s challenge to the sufficiency of the evidence
supporting the verdict on Counts I and II for producing and distributing child
pornography. We review de novo the district court’s denial of his motion for
judgment of acquittal. See United States v. Yarrington, 634 F.3d 440, 449 (8th Cir.
2011). “We evaluate the evidence in the light most favorable to the verdict,
reversing only if no reasonable jury could have found the defendant guilty beyond a
reasonable doubt.” United States v. Fang, 844 F.3d 775, 778 (8th Cir. 2016)
(internal quotation marks omitted). Importantly, “we do not weigh the evidence or
assess the credibility of the witnesses”—that is for the jury. United States v. Polk,
715 F.3d 238, 247 (8th Cir. 2013) (brackets omitted).
On appeal, Nosley attacks the jury’s findings that the victims were minors at
the time of the offense, that they were enticed by Nosley, and that he distributed the
child pornography rather than someone else who might have had access to his
devices (like his ex-girlfriend). All three challenges amount to mere credibility
attacks. The two victims testified about their interactions with Nosley and their
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respective ages at the time. They testified that Nosley asked them to send him
sexually explicit images and videos of themselves, which they did. Their testimony
was corroborated by investigators and by images and videos taken from Nosley’s
devices. Further support included evidence of emails sent from Nosley’s Gmail
account that contained sexually explicit pictures of R.A. and A.S. as attachments.
Nosley argues that testimony about these matters is insufficient, especially given that
there were no records of the Snapchat messages in evidence or of specific
documentation of the victims’ ages. But these matters were all the subject of
testimony, and witness credibility is for the jury to evaluate. It is “virtually
unassailable on appeal.” United States v. Collier, 932 F.3d 1067, 1079 (8th Cir.
2019); see Fang, 844 F.3d at 779 (“A jury’s credibility determinations are well-nigh
unreviewable because the jury is in the best position to assess the credibility of
witnesses and resolve inconsistent testimony.”). We therefore affirm the district
court’s denial of Nosley’s motion for acquittal.
V.
Finally, we turn to Nosley’s argument that his sentence is substantively
unreasonable. We review the substantive reasonableness of a sentence for abuse of
discretion. United States v. Crumble, 965 F.3d 642, 646 (8th Cir. 2020). In doing
so, we “take into account the totality of the circumstances, including the extent of
any variance from the Guidelines range.” Id. “[I]t is the unusual case when we
reverse a district court sentence as substantively unreasonable.” Id. (ellipses
omitted). Sentences within the advisory sentencing guidelines range are
presumptively reasonable. United States v. Jones, 990 F.3d 1141, 1144 (8th Cir.
2021).
Nosley argues that his sentence is substantively unreasonable because the
district court erred by relying on evidence of conduct for which he was acquitted in
state court. Specifically, he argues that the district court should not have credited
his ex-girlfriend’s testimony about the messages she received from Nosley
purportedly confessing to sexually abusing her daughter.
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We find no abuse of discretion. The district court carefully considered the 18
U.S.C. § 3553(a) factors and sentenced Nosley within the guidelines range, the
calculation of which Nosley does not challenge. The district court noted Nosley’s
“extremely dangerous” conduct in pulling a loaded handgun from his waistband and
pointing it at a law-enforcement officer’s head when he was arrested. The court then
emphasized that Nosley’s offense conduct was “particularly disturbing.” It also
found by a preponderance of the evidence that Nosley had sexually abused his ex-
girlfriend’s daughter. It did not err in considering this conduct, even though Nosley
was acquitted of it in state court. See United States v. Lasley, 832 F.3d 910, 914 (8th
Cir. 2016). Finally, after a thorough review of Nosley’s background, criminal
history, mitigating factors, and conduct surrounding these offenses, the district court
found that he showed “no remorse, no repentance here whatsoever.” It then
sentenced him to the statutory maximum on each count to be served consecutively.
That sentence is not substantively unreasonable.4 See United States v. Jones, 990
F.3d 1141, 1144 (8th Cir. 2021) (“As the term of imprisonment was within the
advisory guideline range, we presume that it is reasonable.”).
VI.
For the foregoing reasons, we affirm Nosley’s convictions and sentence.
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We also find no merit to Nosley’s argument that his sentence would result in
broader sentencing disparities. He received a sentence within the guidelines range.
See United States v. Heim, 941 F.3d 338, 340 (8th Cir. 2019) (“[W]hen a sentencing
judge correctly calculates and carefully reviews the Guidelines range, she
necessarily gives significant weight and consideration to the need to avoid
unwarranted disparities.” (brackets omitted)).
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