United States v. Dustin Red Legs ( 2022 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 20-3506
___________________________
United States of America
Plaintiff - Appellee
v.
Dustin Red Legs
Defendant - Appellant
____________
Appeal from United States District Court
for the District of South Dakota - Central
____________
Submitted: October 22, 2021
Filed: March 21, 2022
____________
Before COLLOTON, SHEPHERD, and KELLY, Circuit Judges.
____________
SHEPHERD, Circuit Judge.
A jury found Dustin Red Legs guilty of sexual exploitation of a child and
possession of child pornography, and the district court1 sentenced him to 264 months
imprisonment. Red Legs appeals his conviction, arguing that the district court erred
1
The Honorable Roberto A. Lange, Chief Judge, United States District Court
for the District of South Dakota.
in admitting the testimony of an expert witness who compared finger and knuckle
creases in sexually explicit photos with photos of Red Legs’s fingers and knuckles
to give an opinion as to identity. Having jurisdiction under 28 U.S.C. § 1291, we
affirm.
I.
Red Legs’s conviction arises from his taking of sexually explicit photos of his
ex-girlfriend’s ten-year-old daughter in Eagle Butte, South Dakota. “We recite the
facts in the light most favorable to the jury’s verdict.” United States v. Galloway,
917 F.3d 631, 632 (8th Cir. 2019) (citation omitted).
From early 2013 to September 2018, Red Legs was in an on-again, off-again
relationship with Amy Pritzkau. They shared three children, and each had children
from prior relationships, including Amy’s ten-year-old daughter, L.B.E. In
September 2018, when Red Legs and Pritzkau were not dating, Pritzkau approached
Red Legs and asked if he would come to her apartment to help with their children.
Red Legs agreed, and later that afternoon, he arrived at the two-bedroom apartment
where Pritzkau lived with her five children (including the three shared with Red
Legs). Pritzkau allowed Red Legs to spend the night after he told her that he had
nowhere else to go and would help financially. Red Legs slept on a couch in the
living room, while Pritzkau and three children slept in one bedroom and the other
two children, including L.B.E., slept in the second bedroom. The next evening,
while Red Legs took a shower, Pritzkau, concerned that Red Legs was using drugs,
looked through his wallet without his knowledge. Pritzkau removed and hid a piece
of paper containing Red Legs’s email address and password as well as his Facebook
login information. The email address contained Red Legs’s full name, and the
Facebook password appeared to be a reference to his children.
Red Legs stayed a second night at Pritzkau’s apartment. Again, he slept in
the living room while Pritzkau and three children stayed in one bedroom and the
other two children, including L.B.E., slept in the second bedroom. Pritzkau testified
-2-
that around midnight, from her bedroom, she saw Red Legs enter the bedroom where
L.B.E. was sleeping. Red Legs stayed in the bedroom for a couple minutes before
walking back to the living room. Soon after, Red Legs returned to L.B.E.’s bedroom
for a couple more minutes before walking to Pritzkau’s room and asking Pritzkau if
there was a phone charger in L.B.E.’s bedroom. When Pritzkau said no, Red Legs
went back to the living room.
After Red Legs left the apartment the next morning, Pritzkau logged onto his
email account. In the account, Pritzkau found a folder labeled “Photos.” The first
two photos in the folder were of fingers pulling aside underwear to expose a vagina.
Pritzkau testified that she realized the photos depicted L.B.E.’s vagina based upon
her recognition of five items shown: a black-and-white-striped blanket and a multi-
colored zebra-print blanket on L.B.E.’s bed; L.B.E.’s white underwear and a pair of
black pajama shorts that L.B.E. had asked to borrow from Pritzkau the day before;
and L.B.E.’s finger that had a dark spot due to an infection. Pritzkau took
screenshots of the sexually explicit photos with her cellphone. Shortly after Pritzkau
used her cellphone to access Red Legs’s email account, Red Legs called her and
asked what kind of phone she had. The call dropped due to poor cell coverage. That
same day, Pritzkau reported the explicit photos to law enforcement, and law
enforcement arranged for her and L.B.E. to meet a pediatric nurse practitioner, who
conducted a forensic examination of L.B.E. The nurse practitioner observed minor
injuries on two of L.B.E.’s fingers. The nurse practitioner also noted that L.B.E.
was a Tanner Stage III female, and she testified at trial that the vagina in the explicit
photos found on Red Legs’s email account belonged to a Tanner Stage III female. 2
Later that day, Red Legs called Pritzkau again, and they had a brief
conversation. Pritzkau testified that she asked him how he could do what he did,
and he responded “Sorry” before hanging up. Pritzkau tried calling him back, but
Red Legs did not answer. That evening, Pritzkau contacted Red Legs via Facebook
2
The Tanner stages, also known as the Tanner scale or Sexual Maturity Rating
(SMR), is a scale of physical development. It defines physical measurements of
development based on external primary and secondary sex characteristics.
-3-
Messenger and asked him to turn himself in. Pritzkau testified that Red Legs
responded by “saying things along the lines of killing himself, that I’m never going
to talk to him again, that his phone is going to be shut off.” 3
Law enforcement obtained Pritzkau’s cellphone and extracted the metadata
from the screenshots Pritzkau had taken. Officers testified that the metadata
established that the original photos were taken approximately one minute apart,
around the time Pritzkau saw Red Legs enter the bedroom where L.B.E. slept. The
metadata also revealed the make and model of the cellphone that took the photos.
Law enforcement could not locate Red Legs’s cellphone, but they did secure a search
warrant for his email account, which was linked to his cellphone. Law enforcement
found the two explicit photos on his account. They also discovered photos of Red
Legs’s children, a construction site where Red Legs worked, and a partial selfie of
Red Legs on his account. The metadata from those photos revealed that they were
taken by a cellphone matching the make and model of the phone that took the explicit
photos. A search of Red Legs’s email account further showed that Red Legs
received a security alert that another phone had accessed his account around the time
Pritzkau discovered the explicit photos.
Law enforcement contacted Anthony Imel, a forensic examiner for the Federal
Bureau of Investigation, to help identify whose fingers were pulling aside the
underwear in the photos. Imel conducted a comparison analysis of the explicit
photos, which depicted unidentified fingers and knuckles, with known photos of Red
Legs’s fingers and knuckles. Imel determined that, based upon the similarity of the
finger and knuckle creases, the fingers and knuckles in each set of photos belonged
to the same person.
In June 2020, a grand jury returned a three-count superseding indictment
against Red Legs, charging him with aggravated sexual abuse of a child (Count 1),
3
Pritzkau later deactivated her Facebook account, and law enforcement could
not find Red Legs’s messages when examining Pritzkau’s cellphone.
-4-
sexual exploitation of a child (Count 2), and possession of child pornography
(Count 3). Before trial, the government filed a notice of intent to offer Imel’s expert
testimony, and Red Legs filed a notice of intent to call his own expert witness, Dr.
Glenn Langenburg, to rebut Imel. Red Legs also filed a motion for a pretrial
Daubert 4 hearing regarding Imel’s proposed testimony, which the district court
granted. Both Imel and Dr. Langenburg testified at the Daubert hearing. Imel shared
why, in his opinion, both sets of photos displayed fingers belonging to the same
person. The district court concluded that the government met the Daubert standard
and Imel’s testimony was admissible under Federal Rule of Evidence 702. At trial,
Imel’s testimony was consistent with his opinion provided during the Daubert
hearing, counsel for Red Legs cross-examined Imel, and Dr. Langenburg again
testified in rebuttal. The district court instructed the jury that it could accept or reject
the experts’ testimony, giving each as much weight as the jury believed it deserved.
After the government presented its evidence, Red Legs moved for a judgment
of acquittal on all three counts, arguing that the government failed to prove the
elements of each count. Red Legs also specifically argued that there was no evidence
to support Count 1’s element of touching, as touching clothing is insufficient.
Regarding Counts 2 and 3, Red Legs argued that they should merge and that the
explicit photos were not lascivious exhibition. The district court denied the motion,
and after both parties rested, Red Legs renewed the motion. The district court denied
the renewed motion as to Counts 2 and 3 and took it under advisement as to Count 1,
pending the jury’s verdict. After the jury found Red Legs guilty of all three counts,
the district court granted Red Legs’s motion for judgment of acquittal on Count 1
and sentenced Red Legs to 264 months imprisonment on Counts 2 and 3.
II.
Red Legs argues that the district court erred by admitting Imel’s testimony.
“We review evidentiary issues for clear abuse of discretion and will reverse the
4
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
-5-
district court’s judgment ‘only when an improper evidentiary ruling affected the
defendant’s substantial rights or had more than a slight influence on the verdict.’”
United States v. Omar, 786 F.3d 1104, 1112 (8th Cir. 2015) (citation omitted). “We
will not reverse a harmless error.” United States v. Johnson, 860 F.3d 1133, 1139
(8th Cir. 2017).
Red Legs contends that Imel lacked the qualifications necessary to provide an
expert opinion as to identity based upon the comparison of finger and knuckle
creases as shown in the two sets of photos. Red Legs emphasizes that the complex
field of finger and knuckle crease analysis is still nascent and that Imel failed to rely
on the research developed so far by the field’s scientific community. Red Legs
claims that Imel instead used a generic method unreliable for the comparison of
finger and knuckle creases. “Under Federal Rule of Evidence 702, expert testimony
is admissible if the expert’s ‘knowledge, skill, training, experience or education will
assist a trier of fact in understanding an area involving specialized subject matter.’”
Id. (citation omitted). “In the case of all expert testimony the district court serves as
a gatekeeper to ensure that only reliable and relevant expert testimony is presented
to a jury.” United States v. Merrell, 842 F.3d 577, 582 (8th Cir. 2016).
We need not decide whether the district court abused its discretion by
admitting Imel’s testimony because if there was any error, it was harmless. “An
evidentiary error is harmless when, after reviewing the entire record, we determine
that the substantial rights of the defendant were unaffected, and that the error did not
influence or had only a slight influence on the verdict.” United States v. Farish, 535
F.3d 815, 820 (8th Cir. 2008) (citation omitted). “Improperly admitted testimony
warrants reversal of a conviction if the testimony ‘substantially influence[d] the
jury’s verdict.’” Merrell, 842 F.3d at 582 (alteration in original) (citation omitted).
Imel’s testimony could not have substantially influenced the jury’s verdict because,
even absent his testimony, the government provided overwhelming evidence of Red
Legs’s guilt. Pritzkau saw Red Legs enter L.B.E.’s bedroom around the time the
explicit photos were taken. Pritzkau recognized that the photos were of L.B.E. based
on other items shown in the photos. The explicit photos were found in Red Legs’s
-6-
email account along with stored photos of Red Legs and his children that were taken
by the same phone that took the explicit photos. Red Legs also made inculpatory
statements to Pritzkau, including an apology, when she confronted him about the
explicit photos. Further, a layperson examining the two sets of photos could discern
similarities between the fingers in the explicit photos and the fingers in the known
photos of Red Legs. Accordingly, because substantial evidence other than Imel’s
testimony supported the jury’s verdict, any error in admitting Imel’s testimony was
harmless and does not warrant reversal.
III.
For the foregoing reasons, we affirm the judgment of the district court.
______________________________
-7-