United States v. Christopher Frommelt ( 2020 )

United States Court of Appeals
For the Eighth Circuit
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No. 19-2820
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Christopher Frommelt
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Dubuque
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Submitted: June 19, 2020
Filed: August 21, 2020
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Before LOKEN and GRASZ, Circuit Judges, and CLARK,1 District Judge.
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GRASZ, Circuit Judge.
A jury found Christopher Frommelt guilty of four crimes: (1) sexual
exploitation of a child, 18 U.S.C. § 2251(a); (2) conspiracy to distribute
1
The Honorable Stephen R. Clark, Sr., United States District Judge for the
Eastern District of Missouri, sitting by designation.
methamphetamine, 21 U.S.C. §§ 841 and 846; (3) distribution of methamphetamine
near a protected location, 21 U.S.C. §§ 841, 860(a);2 and (4) distribution of
methamphetamine on premises where a person under eighteen was present, 21 U.S.C.
§ 860a. Now, Frommelt appeals the district court’s3 denial of his motion for a
judgment of acquittal, arguing the government presented insufficient evidence to
sustain his convictions. He also claims ineffective assistance of trial counsel. We
affirm the denial of Frommelt’s motion for a judgment of acquittal but decline to
consider his ineffective-assistance claim.
I. Background
We recite the facts in a light most favorable to the jury’s verdict. See United
States v. Sainz Navarrete, 955 F.3d 713, 718 (8th Cir. 2020). On January 17, 2018,
a sixteen-year-old girl (“A.E.”) went to Frommelt’s house with her brother, Douglas
Clark, and his girlfriend, Elizabeth Davey, to use drugs. Once there, they all used
methamphetamine provided by Frommelt.4 Frommelt was a forty-one-year old
photographer, and he started taking pictures of A.E. with his camera equipment. A.E.
liked having her picture taken.
2
The jury also found Frommelt guilty of distributing methamphetamine to a
person under the age of twenty one in violation of 21 U.S.C. § 859. But because
§ 859 defers to § 860, we only mention the latter here. See 21 U.S.C. § 859 (“Except
as provided in section 860 of this title,” any person at least eighteen years of age who
violates § 841(a)(1) by distributing a controlled substance to a person under twenty
one is subject to criminal penalty.) (emphasis added).
3
The Honorable C.J. Williams, United States District Judge for the Northern
District of Iowa.
4
Frommelt and the government stipulated that Frommelt’s house was within
1,000 feet of a secondary school and university, both protected locations. See 21
U.S.C. § 860(a).
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After a while, Clark and Davey left, but A.E. stayed because she wanted to use
more methamphetamine. Alone with A.E., Frommelt sat next to her on the couch
“and started rubbing [her] leg and kissing [her] on the neck.” Frommelt then asked
A.E. if she wanted to have sex, and she accompanied Frommelt to his bedroom where
they had a sexual encounter. Still high, A.E. saw Frommelt holding his phone while
they were having intercourse. She also remembers him holding his camera. A.E.
stayed the night in Frommelt’s bedroom, and, once or twice during the night, he
provided her a line of methamphetamine. The next day, A.E.’s sister’s boyfriend
picked her up from Frommelt’s house and took her home.
After the night at Frommelt’s house, Frommelt and A.E. continued to talk using
Facebook Messenger. And Frommelt eventually sent A.E. a video of them engaged
in sexual intercourse in his room. After she received Frommelt’s message, A.E.
watched the video. When Frommelt then asked A.E. to come over again, she said she
“might . . ., but we [need to] forget the other night. I was basically taken advantage
of.” Frommelt apologized, saying he did not realize she was “strung out.”
On January 21, Clark was arrested for violating his probation. Clark thought
he could get drug treatment — maybe in lieu of a prison sentence — if he provided
useful information about drug activity. So he asked to talk with local law
enforcement’s drug task force. The next day, Chad Leitzen, an officer with the City
of Dubuque, Iowa’s drug task force, interviewed Clark. And during the interview,
Clark provided Leitzen with information about three individuals: Frommelt, K.H.,
and S.W. Based on this information, Leitzen obtained a GPS mobile tracking device
search warrant for a gray 2018 Chevy Malibu that Frommelt had rented from Hertz
on January 10.
On January 29, after tracking the Malibu for about a week, Leitzen obtained
a warrant to search the Malibu, and, with other officers, he stopped the car in
Dubuque County, Iowa. K.H. was driving and S.W. was one of the passengers. The
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officers discovered 961 grams of actual methamphetamine in the Malibu, which had
been driven 9,263 miles since Frommelt rented it on January 10. During the stop,
Leitzen interviewed both K.H. and S.W., and he photographed the WhatsApp
messages on S.W.’s phone. Both K.H. and S.W. used that phone to communicate
with Frommelt. And in the WhatsApp messages, the three talked about making their
next rental a Cadillac and how Frommelt was a better salesman than “copilot.”
K.H. testified Frommelt had previously agreed to let K.H. use the rented
Malibu to transport methamphetamine from Texas to Iowa in exchange for
methamphetamine. K.H. used the car to make three trips. On the first trip, he and
another person picked up methamphetamine in Texas and brought it back to S.W.’s
home in Dubuque, Iowa, where “it was broken up for resale.” Some of that
methamphetamine went to Frommelt. For the second trip, K.H. gave the Malibu to
someone else to pick up the methamphetamine, but on the way back that person threw
the methamphetamine out the window near the Iowa-Missouri border. Before the
third trip, K.H. and S.W. discussed the trip with Frommelt at his house. Frommelt
volunteered to go with K.H., but K.H. said it would “look[] better” if S.W. — a
female — went with him. So S.W. went. It was on their return trip, however, that
officers stopped the Malibu and found the 961 grams of actual methamphetamine.
During his investigation, Leitzen acquired Frommelt’s Walmart money transfer
history. And just days before the January 29 stop and search of the Malibu, Frommelt
made two money transfers from a Dubuque, Iowa, Walmart to two different Dallas,
Texas, Walmarts. These two money transfers added up to $2,500. On January 26,
Frommelt transferred $1,000 to S.W. And on January 27, he transferred $1,500 to
Veronica Hinkle, “the girlfriend of the source for the methamphetamine in Texas.”
He also made an earlier transfer on January 24, sending $120 to Anthony Dewayne
Crosby, the front-seat passenger in the Malibu when it was stopped and searched on
January 29. These money transfers were made during the third trip to Texas, and
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K.H. testified Frommelt expected a larger share of the methamphetamine from this
trip for sending $2,500 in addition to lending the Malibu.
In a five-count indictment, Frommelt was charged with sexual exploitation of
a child in violation of 18 U.S.C. § 2251(a), distribution of child pornography in
violation of 18 U.S.C. § 2252(a)(2), conspiracy to distribute methamphetamine in
violation of 21 U.S.C. §§ 841 and 846, distribution of methamphetamine to a person
under twenty one and near a protected location in violation of 21 U.S.C. §§ 841, 859,
and 860(a), and distribution of methamphetamine on premises where a person under
eighteen was present in violation of 21 U.S.C. § 860a. Following a trial, the jury
found Frommelt guilty of all but the charge of distributing child pornography. The
district court then denied Frommelt’s Rule 29 motion for a judgment of acquittal and
his Rule 33 motion for a new trial and sentenced him to 264 months of imprisonment.
Frommelt appealed, arguing he is entitled to a Rule 29 judgment of acquittal
because the trial evidence was insufficient to support his convictions.5 He also
challenges his convictions on the grounds that he received ineffective assistance of
counsel at trial in violation of his Sixth Amendment rights. Having jurisdiction under
28 U.S.C. § 1291, we address these contentions in order.
5
In a heading, Frommelt’s brief also states the district court erroneously denied
him a new trial on his three drug charges because the government did not sufficiently
prove the elements of those crimes. See United States v. Stacks, 821 F.3d 1038, 1044
(8th Cir. 2016) (Rule 33(a) of the Federal Rules of Criminal Procedure grants district
courts discretion to order “a new trial on the ground that the verdict is contrary to the
weight of the evidence.”) (internal quotation omitted). But his brief never develops
an argument for a new trial under Rule 33 based on the evidence. It does not even
cite Rule 33, let alone its standard of review. And in fact, at the outset, Frommelt’s
summary of his argument challenges only the district court’s denial of his Rule 29
motion for a judgment of acquittal without ever mentioning the district court’s denial
of his Rule 33 motion for a new trial. We will not address such an undeveloped
argument for a new trial under Rule 33. See Fed. R. App. P. 28(a)(8).
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II. Analysis
A. Judgment of Acquittal
Frommelt argues the district court erred in denying his motion for judgment of
acquittal because the trial evidence was insufficient to support any of his four
convictions. See Fed. R. Crim. P. 29(a) (requiring entry of “a judgment of acquittal
of any offense for which the evidence is insufficient to sustain a conviction”). We
disagree. The evidence, viewed in favor of the jury’s verdict, was sufficient to
support each of Frommelt’s convictions.
We review denials of motions for judgment of acquittal de novo. Sainz
Navarrete, 955 F.3d at 718. And we will affirm a jury’s guilty verdict “if, taking all
facts in the light most favorable to the verdict, a reasonable juror could have found
the defendant guilty of the charged conduct beyond a reasonable doubt.” Id.
1. Sexual Exploitation of a Child
For the jury to convict Frommelt of sexual exploitation of a child under 18
U.S.C. § 2251(a), the government had to prove Frommelt “employ[ed], use[d],
persuade[d], induce[d], entice[d], or coerce[d]” A.E. to engage in “sexually explicit
conduct for the purpose of producing any visual depiction of such conduct.” 18
U.S.C. § 2251(a). Frommelt argues the government failed to meet its burden of proof
in several respects. We are not persuaded.
First, Frommelt argues the government did not prove A.E. engaged in any
sexually explicit conduct. Sexually explicit conduct, for purposes of § 2251(a),
includes sexual intercourse. The government’s theory was that the trial evidence
showed Frommelt recorded himself engaged in sexual intercourse with A.E., and then
sent that video to her using Facebook Messenger. 18 U.S.C. § 2256(2)(A)(i)
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(defining “sexually explicit conduct”). But the government was unable to produce
that video at trial. It was only able to produce the Facebook message Frommelt sent
to A.E., which included a thumbnail of the video with a play button superimposed on
the image. This play button, Frommelt says, made it impossible to determine whether
A.E. was engaged in sexual intercourse or any other sexually explicit conduct. And
he claims the government presented no other evidence to support its theory. This
argument neglects A.E.’s trial testimony.
A.E. testified that after Frommelt gave her methamphetamine at his house, they
had sex on the bed in his room, during which Frommelt was holding his phone. Then,
when shown Frommelt’s Facebook message containing the thumbnail image, A.E.
testified she clicked the play button after receiving the message. The video showed
her and Frommelt engaged in sexual intercourse. Viewing this testimony and the
thumbnail image in favor of the jury’s verdict, a reasonable juror could conclude A.E.
engaged in sexually explicit conduct. So there was enough trial evidence to prove
this element of the crime. See Sainz Navarrete, 955 F.3d at 718.
Summarily, Frommelt also argues the government failed to prove the “purpose”
element of the crime because the sexually explicit conduct was consensual, as if that
somehow negates Frommelt’s illicit purpose. It does not. The government had to
prove that “one of [Frommelt’s] dominant purposes was to produce [the] sexually
explicit [video].” United States v. Raplinger, 555 F.3d 687, 693 (8th Cir. 2009); see
also United States v. Fortier, 956 F.3d 563, 567 (8th Cir. 2020). And the trial
evidence showed Frommelt took pictures of A.E. before he asked her to have sex,
video recorded them having sex, and then sent A.E. the video. Consensual or not, a
reasonable juror could conclude that one of Frommelt’s dominant purposes for using
A.E. to engage in sexually explicit conduct was to produce the video. So the trial
evidence was not lacking in this regard either.
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Citing no authority, Frommelt next argues the government had to prove he
intended to “distribute,” a visual depiction of A.E. engaged in sexually explicit
conduct, presumably to a third person. But § 2251(a) does not require this. Rather,
the government can prove a violation of § 2251(a) by showing the illicit visual
depiction “has actually been transported or transmitted using any means or facility of
interstate or foreign commerce.” See 18 U.S.C. § 2251(a). And Frommelt makes no
argument that sending the explicit video through Facebook Messenger failed to
satisfy this element of the crime. His “distribution” argument is therefore misplaced.
Finally, Frommelt argues the government had to prove he somehow persuaded,
induced, or enticed A.E. to engage in sexually explicit conduct. Because A.E. liked
having her picture taken earlier in the night, Frommelt claims he did not persuade,
induce, or entice her to participate in the making of the sexually explicit video.
Arguably, he did by first giving her drugs. But in any case, persuasion, inducement,
and enticement, although sufficient, are not necessary to the commission of the crime.
See Fortier, 956 F.3d at 567 (“The statute contains a number of verbs that describe
the actus reus of the offense, ranging from ‘employs’ and ‘uses’ to ‘persuades,’
‘induces,’ ‘entices,’ and ‘coerces.’”) (quoting 18 U.S.C. § 2251(a)). The
government’s theory was that Frommelt used A.E. to engage in sexually explicit
conduct for the purpose of producing a visual depiction. See id. And as explained
above, we conclude the government presented sufficient evidence to prove this theory
of guilt. Frommelt is therefore not entitled to judgment of acquittal on his conviction
for sexual exploitation of a child.
2. Conspiracy to Distribute Methamphetamine
As to his conspiracy conviction, Frommelt argues there was no evidence a
conspiracy existed. Alternatively, he argues that even if there was sufficient evidence
of a conspiracy, the government failed to prove he knew about it or intentionally
joined. We disagree on both counts.
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“To establish that a defendant conspired to distribute drugs under 21 U.S.C.
§ 846, the government must prove: (1) that there was a conspiracy, i.e., an agreement
to distribute the drugs; (2) that the defendant knew of the conspiracy; and (3) that the
defendant intentionally joined the conspiracy.” United States v. Sanchez, 789 F.3d
827, 834 (8th Cir. 2015) (quoting United States v. Slagg, 651 F.3d 832, 840 (8th Cir.
2011)). Generally, a defendant’s knowledge is “established through circumstantial
evidence, and no direct evidence of an explicit agreement need be introduced to prove
a conspiracy, since a tacit understanding may be inferred from circumstantial
evidence.” United States v. Mallett, 751 F.3d 907, 915 (8th Cir. 2014) (quoting
United States v. Benitez, 531 F.3d 711, 716 (8th Cir. 2008)).
K.H. made regular trips to Texas to retrieve distribution quantities of
methamphetamine. See United States v. Bradshaw, 955 F.3d 699, 706 (8th Cir. 2020)
(explaining an intent to distribute may be inferred from circumstantial evidence like
a large quantity of a controlled substance). And Frommelt not only knew about these
trips, he supplied the means of transportation in exchange for a cut of the drugs.
After K.H.’s first trip to Texas, he brought the methamphetamine back to S.W.’s
home in Dubuque, Iowa, where “it was broken up for resale,” and an amount went to
Frommelt. See United States v. Wilder, 597 F.3d 936, 943 (8th Cir. 2010) (citing as
evidence of a conspiracy to distribute drugs the fact that individuals associated with
the defendant “sat around and broke up their drugs”). On K.H.’s next trip, officers
discovered over 960 grams of actual methamphetamine in Frommelt’s rented Malibu,
as well as S.W.’s WhatsApp messages to Frommelt discussing plans to obtain more
drugs. And in addition to lending K.H. the Malibu for this trip, Frommelt wired
$2,500 to Texas for an even larger share of the drugs. On top of all this, Frommelt
had previously provided methamphetamine to A.E., Clark, and Davey.
Presented with this evidence, a reasonable juror could conclude not only that
there was a conspiracy to distribute methamphetamine, but that Frommelt knew about
the conspiracy and intentionally joined. And we must reject Frommelt’s arguments
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that most of this evidence amounts to unreliable testimony from cooperating
witnesses motivated by the prospect of leniency from the government or by a dislike
of him. We do not weigh the credibility of testimony when reviewing a request for
judgment of acquittal and “have repeatedly upheld jury verdicts based solely on the
testimony of co-conspirators and cooperating witnesses” because “it is within the
province of the jury to make credibility assessments.” Mallett, 751 F.3d at 916
(quoting United States v. Jefferson, 725 F.3d 829, 834 (8th Cir. 2013)). Judgment of
acquittal was therefore not appropriate on Frommelt’s conviction for conspiracy to
distribute methamphetamine. See Sainz Navarrete, 955 F.3d at 718.
3. Distribution of Methamphetamine
Finally, Frommelt argues his two convictions for distributing
methamphetamine cannot stand. Frommelt claims that because methamphetamine
was already out on a bar table when A.E., Clark, and Davey arrived at his house, the
evidence is insufficient to prove he was the one who supplied the drug. Again, we
do not agree.
Although Davey testified that when she, Clark, and A.E. arrived at Frommelt’s
house methamphetamine was “[j]ust laying out on the bar table,” Frommelt’s
argument neglects Clark’s and A.E.’s testimony that Frommelt gave them
methamphetamine that night. A.E. testified Frommelt left her a line of
methamphetamine when she was staying the night in his bedroom. Even absent this
testimony though, the reasonable inference is that Frommelt provided the
methamphetamine. It was his house, and there was no evidence anyone else brought
drugs that night. So there was enough evidence to prove Frommelt distributed
methamphetamine, and he was therefore not entitled to judgment of acquittal on
either of his distribution convictions.
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B. Ineffective Assistance of Counsel
Frommelt claims his convictions violate the Sixth Amendment because trial
counsel rendered ineffective assistance. See Strickland v. Washington, 466 U.S. 668,
685–86 (1984). Normally, ineffective-assistance claims are asserted in a 28 U.S.C.
§ 2255 proceeding. United States v. Oliver, 950 F.3d 556, 566 (8th Cir. 2020). “We
review ineffective-assistance claims on direct appeal only ‘where the record has been
fully developed, where not to act would amount to a plain miscarriage of justice, or
where counsel’s error is readily apparent.’” Id. (quoting United States v. Thompson,
690 F.3d 977, 992 (8th Cir. 2012)).
Frommelt has made no attempt to show that his ineffective-assistance claim is
ripe for review. We have no developed record on this claim, and “declining to
consider this claim on direct appeal would not constitute a plain miscarriage of justice
because [Frommelt] ‘remains free to pursue [his] ineffective assistance claim through
a section 2255 action.’” Id. (second alteration in original) (quoting United States v.
Sanchez-Gonzalez, 643 F.3d 626, 629 (8th Cir. 2011)). Nor is there a readily
apparent, prejudicial error. We will therefore decline to consider Frommelt’s
ineffective-assistance claim on direct appeal.
III. Conclusion
We affirm the district court’s judgment.
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