United States v. David Starr

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-2397
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
David Evan Starr, *
*
Appellant. *
___________
Submitted: February 11, 2008
Filed: June 23, 2008
___________
Before LOKEN, Chief Judge, RILEY, and SMITH, Circuit Judges.
___________
SMITH, Circuit Judge.
A jury convicted David E. Starr on all nine counts of the third superseding
indictment, which included charges for sexual exploitation of a child;1 receipt of child
pornography;2 and possession of child pornography.3 The district court4 sentenced
1
A violation of 18 U.S.C. §§ 2251(a) and (e).
2
A violation of 18 U.S.C. §§ 2252A(a)(2)(A) and (b)(1).
3
A violation of 18 U.S.C. § 2252(a)(5)(B).
4
Honorable Linda R. Reade, Chief Judge, United States District Court for the
Northern District of Iowa.
Starr to a term of 720 months' imprisonment. Starr challenges both his conviction and
his sentence, arguing that (1) certain evidence presented at trial should have been
suppressed as a violation of the Fourth Amendment; (2) the jury instructions were
erroneous and deprived him of his due process rights; (3) insufficient evidence
supported his conviction; (4) the interest of justice required the district court to grant
his motion for a new trial; (5) the district court miscalculated his advisory sentencing
range under the Guidelines; and (6) his sentence is unreasonable. We affirm.
I. Background
We recount the facts in the light most favorable to the verdict. United States v.
Reddest, 512 F.3d 1067, 1069 (8th Cir. 2008).
A. Starr's Communications with His Victims
Starr was convicted on each charge of a nine-count indictment that included
charges for the possession of child pornography, exploitation of a minor, and other
related offenses. These charges stemmed from Starr's dealings with four
minors—E.M., V.M., K.E., and K.S.
1. Victim E.M.
E.M., from Phoenix, AZ, testified that she met Starr on the Internet through a
pen pal program on America Online ("AOL") in 1996 when she was 17 years old.
E.M. contacted Starr after reading his profile and deciding that his profile interests
were similar to her own. Starr initially corresponded with E.M. via email but later
began communicating using an instant message program on AOL.
Starr and E.M. developed a relationship over AOL. She eventually revealed to
Starr that she had emotional difficulties and engaged in self-mutilation. Starr
discussed these issues with her. Eventually, however, the conversations became sexual
in nature. Starr explained that he enjoyed dominant and submissive sexual practices,
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and that he believed E.M. had a submissive personality. Starr and E.M. began
telephone sex encounters wherein they discussed their respective autoerotic behaviors.
Starr asked E.M. to send him nude photographs of herself—in particular, he
wanted closeup photographs of E.M.'s pubic area. As requested, E.M. took the photos
and mailed them from Phoenix to Iowa. After convincing E.M. to take photos of
herself, Starr also asked her to send him videotapes. E.M., who was still 17 at this
time, borrowed a camera from her school and complied with the request.
The first tape chronicled her daily life, showing her normal routine during the
day, including changing her clothes in front of the camera. The videos also showed
E.M. masturbating and performing anal penetration. E.M. testified that she made the
video because Starr, her "boyfriend," requested them.
In the second tape, E.M. referred to Starr as master, and she complied with his
request to show her anus on the video. Starr previously explained that he enjoyed
watching E.M. punish herself; therefore, the video also included a portion where E.M.
spanked herself. Again, E.M. testified that she made the video to please Starr.
In the final video, E.M.'s 16-year-old friend, T. (last initial unknown), appears
with her. Prior to filming, Starr and E.M. talked about including another girl in the
videos, so E.M. approached T. with the idea. The video shows E.M. and T. naked and
touching each other while Starr gave telephone instructions directing the girls to
engage in sexual touching. E.M. conveyed to Starr T.'s discomfort with the conduct,
but Starr urged E.M. to insist that T. participate.
E.M.'s relationship with Starr ended when, after a week's hiatus, E.M. re-
evaluated the relationship and decided to end it by sending Starr an email.
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2. Victim V.M.
V.M. testified that she met Starr via the Internet in 2004 when she was 16. V.M.
posted a profile on a site called vampirefreaks.com, an alternative life-styles website.
V.M.'s profile used the screen name "Guttered heart" and displayed her true age. Starr
initiated contact with V.M. by sending her a message through the profile. Starr's
profile name was "darklordmaster11." Although he gave V.M. his real name, Starr lied
about his age—he claimed that he was in his twenties, when he was really in his
forties.
Starr and V.M. began to communicate on the computer every other day for
approximately one month. Starr eventually asked V.M. to email him nude photographs
of herself using her webcam. V.M. made and sent Starr the photographs. Starr then
requested more photos with closer shots of her pubic area. Starr began to talk to V.M.
about submissive and dominant sexual activities and asked V.M. to meet him in
person. V.M. never met Starr and stopped communicating with him after she tired of
talking about sex.
3. Victim K.E.
K.E. testified that she began communicating with Starr via the Internet in
November 2004 when she was 16 and living in Arizona. K.E. posted a profile on
vampirefreaks.com, which included her birthday and residence, using the screen name
XX_unspoken_desire_X.
Starr saw K.E.'s profile and contacted her through Yahoo, using the screen
name "darklordmaster.com." Starr told K.E. that he was between 22 and 24 years
old—when he was, in reality, in his 40s. Starr gave K.E. a business email address of
lawsonline.com. K.E. informed Starr that it was easier for her to talk on the phone
than to send emails, so Starr began to call K.E. at her residence. Starr told K.E. that
he did not have a phone at his residence and that all calls were being made from his
uncle's home.
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Starr talked to K.E. about meeting in Phoenix, but she resisted because she
thought it would be difficult to meet in person because she lived with her mother.
Starr told K.E. that he had photo albums containing nude pictures of other girls, and
asked K.E. to send him photographs of herself. He specifically asked for photographs
of her pubic and genital area. K.E. did not want to send nude photographs of herself
over the Internet so she lied to Starr and told him that she did not have a webcam.
K.E. further testified that she engaged in telephone sex with Starr, and he had,
on occasion, asked her to "soak a pair of [her] underwear in [her] cum and put it into
a Ziploc baggie and mail it to him." Starr mailed a disposable camera to K.E. so that
she could send the photographs. This disturbed K.E., so she stopped communicating
with Starr.
4. Victim K.S.
K.S. testified that she began communicating with Starr via the Internet when
she was 17. K.S. posted a profile on a website named Hi5. She noticed that Starr had
interests similar to hers, so she sent him an email message. Starr and K.S. began
communicating by email and instant message on a regular basis using the Hi5 website.
They eventually began to communicate by telephone because Starr said email was too
impersonal.
K.S. told Starr that she was living in Karen, New York, and Starr expressed an
interest in coming to visit her during spring break. K.S. told Starr about relationship
problems with her boyfriend, and Starr began to talk to her about sex, specifically
sadomasochistic sexual conduct. He told K.S. about a "black room" he wanted to
build. The room would be painted black, have a bed in the center and be filled with
various sex toys. Starr wanted K.S. to visit him in Iowa and told her of the sexual
things that they could do to each other.
-5-
K.S. testified that she had telephone sex with Starr but that she felt horrible after
the experience. Starr told K.S. that he loved her and had never developed feelings for
anyone so quickly. Starr asked K.S. to send him nude photographs of her pubic area,
breasts, and buttocks. Starr told her that if she really cared for him that she would take
the photographs. K.S. explained that she took the photographs and emailed them to
Starr because she felt pressured by him.
After K.S. sent the photographs, Starr told her that he would really enjoy a
video of her taking her clothes off and spinning around. K.S. did not make the video
for Starr and stopped communicating with him after resuming dating her former
boyfriend.
B. Investigation and Arrest
On March 16, 2005, Amanda Starr, David's wife, told police that she was
leaving her husband and wanted to report his suspected illegal conduct. She stated that
she became suspicious of her husband and investigated his online activities. She
provided police with photo albums, photo prints, and videotapes. She told officers that
she reviewed all of the items and was concerned that they all contained child
pornography.
Pursuant to a warrant, Detective Lance Miller and United States Postal
Inspector Troy Raper conducted a search of the Starrs' residence on March 17, 2005.
This search uncovered the following: a starter pistol and holder, three VHS cassettes,
96 compact discs, 77 floppy disks, and one digital camera. The judge approving the
warrant relied on the police review of the materials and not on Mrs. Starr's
representations.
This evidence notwithstanding, Miller and Raper chose not to arrest Starr until
February 10, 2006. After his arrest, Starr received Miranda warnings, and the officers
requested his consent to search his residence. Starr gave written consent for "Marion
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Police Officers to conduct a complete search of [his] residence located at 1645 George
Drive, Marion, IA 52302." The consent also authorized the officers to "take from [his]
residence/closet (roll of film) any letters, papers, materials or other property which
they may desire." During the home search, the officers discovered a locked briefcase
and a locked closet. They brought the briefcase to Starr, and he opened it, revealing
a roll of film inside. The officers asked for permission to develop the film and Starr
consented. Starr also complied with the officers' request for the keys to the closet.
Before searching the closet, the officers amended the written consent to include the
words "closet (roll of film)."
Starr was indicted on nine counts. Count 1 charged Starr with sexual
exploitation of a minor—V.M.—in violation of 18 U.S.C. §§ 2251(a) and (e). Count
2 charged Starr with receiving child pornography, namely depictions of V.M. engaged
in sexually explicit conduct, in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and (b)(1).
On count 3, Starr faced a charge of attempted sexual exploitation of a child—K.E.—in
violation of 18 U.S.C. §§ 2251(a) and (e). Count 4 charged Starr with possession of
child pornography—depictions of E.M. engaged in sexually explicit conduct—in
violation of 18 U.S.C. § 2252(a)(5)(B). Count 5 contained another charge for
possession of child pornography, alleging the same facts as count 4. On count 6, Starr
was charged with possession of child pornography—depictions of V.M. engaged in
sexually explicit conduct—in violation of 18 U.S.C. § 2252A(a)(5)(B). Count 7
charged Starr with sexual exploitation of a minor—K.S.—in violation of 18 U.S.C.
§§ 2251 (a) and (e). On count 8, Starr was charged with receiving and attempting to
receive child pornography—depictions of K.S. engaged in sexually explicit
conduct—in violation of 18 U.S.C. §§ 2252(a)(2)(A) and (b)(1). Finally, on count 9,
Starr was charged with possession of child pornography—depictions of K.S. engaged
in sexually explicit conduct—in violation of 18 U.S.C. § 2252A(a)(5)(B).
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C. Pre-Trial Proceedings
Starr moved to suppress evidence obtained from his wife contending the
officers conducted an unreasonable search under the Fourth Amendment because they
viewed the items without first obtaining a warrant. The magistrate rejected that
argument and found no constitutional violation. In his report, the magistrate found that
the police did not exceed the scope of Mrs. Starr's private search. The magistrate also
rejected Starr's argument that the police should have discounted his estranged wife's
reports because of the strained marital relationship. The magistrate found that the
detective acted properly when he decided to proceed given the great amount of detail
she provided. The district court accepted the magistrate's report although correcting
two minor factual errors. After accepting the report, the district court denied Starr's
motion to suppress the evidence provided by Mrs. Starr.
In the same report, the magistrate also found that the officers did not exceed the
scope of Starr's consent when they searched his home on February 10, 2006. The
report found that Starr's alterations to the consent form were added at the officers'
request out of an abundance of caution, not to limit the officers' search. Based on the
magistrate's findings, the district court denied Starr's motion to suppress the evidence
recovered in the February 2006 search.
D. Trial and Sentencing
Starr's case proceeded to trial by jury. In its instructions to the jury, the district
court explained that the jury could find Starr guilty of Counts 1, 3, and 7 if the jury
found that Starr attempted to use, persuade, induce, entice, or coerce any of the
victims to engage in sexually explicit conduct for the purpose of causing the
production of a visual depiction of such conduct. The case was submitted to the jury
along with interrogatories for the jurors to answer. Based on these interrogatories, the
jurors unanimously found, beyond a reasonable doubt, that all images possessed
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and/or received by Starr were child pornography. After deliberations, the jury
unanimously found Starr guilty of all nine counts in the third superseding indictment.5
After the jury announced its verdict, Starr moved for a judgment of acquittal,
and in the alternative, if the court denied this motion, he sought a new trial. The
district court denied both motions and allowed the verdict to stand. In denying Starr's
motion for a new trial, the district court ruled that substantial evidence supported the
verdict and that the jury instructions were not erroneous.
At sentencing, Starr challenged the presentence investigation report (PSR)
recommendation that the court assess him 50 criminal history points and place him in
criminal history category V. The district court accepted a majority of the PSR's
recommendations in calculating Starr's advisory Guidelines range.6 The district court
accepted the PSR recommendations that the court (1) apply the cross-reference for a
defendant who caused the manufacture of child pornography; (2) apply a two-level
enhancement for an offense that involved the commission of a sexual act; (3) apply
a four-level enhancement because the child pornography involved sadistic or
masochistic conduct; (4) apply a two-level enhancement for a vulnerable victim; (5)
apply a two-level enhancement for misrepresentation of identity; (6) apply a five-level
enhancement for repeat and dangerous sex offenders; (7) count Starr's 1987 theft
conviction; and (8) assess Starr two criminal history points for committing the instant
offense while serving on federal supervised release.
5
The government filed superseding indictments to add counts and to modify the
language of the charges.
6
The government does not cross appeal Starr's objections to the PSR that the
district court sustained.
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The district court calculated Starr's Guideline sentence using a total offense
level of 47 and a criminal history category V, resulting in an advisory sentence of life
imprisonment.7 The district court sentenced Starr to 720 months' imprisonment.
II. Discussion
Starr raises numerous challenges to both his conviction and sentence. He argues
that: (1) certain evidence presented at trial should have been suppressed as a violation
of the Fourth Amendment; (2) the jury instructions were erroneous and deprived him
of his due process rights; (3) there was insufficient evidence to support his conviction;
(4) the interests of justice required the district court to grant his motion for a new trial;
(5) the district court made several errors in calculating his advisory sentence under the
Guidelines; and (6) his sentence is unreasonable. We address Starr's arguments
seriatim.
A. Motions to Suppress
Starr argues that the district court erred in admitting evidence that was obtained
in violation of his Fourth Amendment rights. He identifies two sources of
evidence—evidence that was submitted by his wife to police and evidence that police
seized at the time of his arrest. He argues that both are the fruit of unconstitutional
warrantless searches and seizures. We disagree and affirm.
1. Suppression of the Evidence from Starr's Wife
Starr contends that his Fourth Amendment rights were violated when Detective
Miller or other law enforcement officers examined the items brought by Mrs. Starr to
the police station, without first obtaining a warrant. "The Fourth Amendment prohibits
unreasonable searches and seizures. Absent some well-settled exception, unconsented
warrantless searches are unreasonable." United States v. Miller, 152 F.3d 813, 815
7
This advisory sentence exceeds the sentencing chart because the highest
offense level on the chart is 43.
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(8th Cir. 1998). The Fourth Amendment, however, does not extend to private searches
that are neither instigated by nor performed on behalf of a governmental entity. Id."[T]he legality of later government intrusions 'must be tested by the degree to which
they exceeded the scope of the private search.'" Id. (quoting United States v. Jacobsen,
466 U.S. 109, 115 (1984)).
Starr concedes that private searches are not covered by the Fourth Amendment's
protections but maintains that the officers needed a warrant before re-examining the
materials provided by Mrs. Starr. When the government re-examines materials
following a private search, the government may intrude on an individual's privacy
expectations without violating the Fourth Amendment, provided the government
intrusion goes no further than the private search. Id. at 815 ("[T]o be a Fourth
Amendment search, a governmental intrusion must infringe on a legitimate
expectation of privacy. Because a private search frustrates such an expectation, an
ensuing police intrusion that stays within the limits of the private search is not a
search for Fourth Amendment purposes.") (citations omitted). (Furthermore, the
Supreme Court has recognized "that a third party's inspection of the contents of
private books, papers, memoranda, etc. could be so complete that there would be no
additional search by the [government] when it re-examines the materials." Walter v.
United States, 447 U.S. 649, 659 n.14 (1980)). This is such a case. In her private
search prior to contacting law enforcement, Mrs. Starr examined all of the evidence
that she subsequently brought to police. When the police examined the evidence, the
record indicates that the officers only viewed material that had already been viewed
by Mrs. Starr. Because the officers' search did not exceed the scope of Mrs. Starr's
private search, we conclude that the officers did not unconstitutionally intrude on
Starr's privacy interests. Accordingly, we reject Starr's argument that the government's
examination of this material violated the Fourth Amendment.
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2. Scope of Starr's Consent
Starr also challenges the admission of evidence obtained contemporaneously
with his arrest. He argues that the written consent that he provided to police gave
consent only to search a closet and a roll of film. He further contends that any
reasonable person would understand that in mentioning these two items, he intended
to circumscribe his consent.
"The standard for measuring the scope of a suspect's consent under the Fourth
Amendment is that of 'objective' reasonableness—what would the typical reasonable
person have understood by the exchange between the officer and the suspect?" Florida
v. Jimeno, 500 U.S. 248, 251 (1991). The defendant's "actual subjective state of mind
at the time that he allegedly gave his consent is not determinative; our focus, rather,
is on how a reasonable person could have perceived his state of mind at that time."
United States v. Cedano-Medina, 366 F.3d 682, 684–85 (8th Cir. 2004).
Here, the district court's findings of fact regarding the scope of Starr's consent
largely turned on its credibility determinations. "A credibility determination made by
a district court after a hearing on the merits of a motion to suppress is virtually
unassailable on appeal." United States v. Frencher, 503 F.3d 701, 701 (8th Cir. 2007)
(citation and punctuation omitted). At the suppression hearing, Starr disputed whether
he gave consent to search his entire residence. Detective Miller testified that Starr
gave consent and later added specific language referring to the film and the closet.
Starr testified to the contrary that he never gave consent for a full search of his home
and only gave consent to search the two specified items. In reaching its conclusion,
the district court found Miller's testimony more credible than Starr's. Based upon this
record, Starr has not shown that the district court clearly erred.
In assessing the scope of consent, we must examine the totality of the
circumstances, including the language of Starr's consent and his actions while the
officers were conducting their search. See United States v. Ware, 890 F.2d 1008,
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1010–12 (8th Cir. 1989) (finding that defendant gave consent to full search, including
a locked storage room, where he gave officers his keys and "permission for a
'complete search' of his apartment and authorization to seize, among other items, 'any
drugs'"); United States v. Stapleton, 10 F.3d 582, 584 (8th Cir. 1993) (holding that an
officer reasonably believed he had consent to search when, after receiving consent to
search a car, the officer told the defendant that the officer was about to search a
telephone from the car and the defendant remained silent); Cedano-Medina, 366 F.3d
at 684–85 (stating that "a person can render a search legal by behaving in a way that
would cause a reasonable person to believe that he or she has knowingly and
voluntarily consented, whether or not the person actually intends to consent").
Starr's written consent reads as follows:
I, David Evan Starr, having been informed of my constitutional rights
not to have a search made on my residence without a search warrant and
the right to refuse consent to such a search, hereby authorize Det. Lance
S. Miller and S/A Troy Raper (US Postal Service) Marion Police
Officers to conduct a complete search of my residence located at 1645
George Drive, Marion, IA 52302. These officers are authorized by me
to take from my residence/closet (roll of film) any letters, papers,
materials or other property which they may desire. This written
permission is being given by me to the above mentioned officers
voluntarily and without threats or promises of any kind.
Starr's written consent is most reasonably interpreted as an unqualified consent
to search his entire home. Also, Starr was present during the officers' full search of his
home, but remained silent and made no attempt to impede their efforts or to express
his concern that they were exceeding the scope of his consent. Given these facts, we
conclude that a reasonable person would have believed that the officers had authority
to conduct a full search of Starr's home including his closet and a roll of film;
therefore, this warrantless search did not violate the Fourth Amendment because it
was authorized by Starr's consent.
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B. Jury Instructions
Next, Starr asserts that the jury instructions contained erroneous statements of
law, resulting in a violation of his due process rights. Starr argues that the indictment
accused him of violating 18 U.S.C. § 2251(a), which prohibits individuals from
engaging in certain activities "for the purpose of producing any visual depiction of
such conduct . . ." and the jury instructions permitted the jury to convict Starr if it
found that he engaged in the prohibited conduct "for the purpose of causing the
production of" such images. Starr contends that the inclusion of this causation
language amounts to either a variance or a constructive amendment to the indictment.
"The district court has wide discretion in crafting jury instructions. We will
affirm if the instructions, taken as a whole, fairly and adequately instruct the jurors on
the law applicable to the case. The instructions do not need to be technically perfect
or even a model of clarity." United States v. Jennings, 487 F.3d 564, 580 (8th Cir.
2007) (citations and quotations omitted). Regardless of the clarity of the instructions,
constitutional problems may arise if a variance or a constructive amendment to the
indictment occurs.
"A variance arises when the evidence presented proves facts that are 'materially
different' from those [alleged] in the indictment." United States v. Whirlwind Soldier,
499 F.3d 862, 870 (8th Cir. 2007) (quoting United States v. Harris, 344 F.3d 803, 805
(8th Cir. 2003)). "With regards to a variance, '[t]he charging document does not
change, only the evidence against which the defendant expected to defend' varies, thus
the court reviews the variance to determine if defendant's right to notice has been
prejudiced . . . ." Id. (quoting United States v. Stuckey, 220 F.3d 976, 981 (8th Cir.
2000)).
"A constructive amendment occurs when the essential elements of the offense
as charged in the indictment are altered in such a manner—often through the evidence
presented at trial or the jury instructions—that the jury is allowed to convict the
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defendant of an offense different from or in addition to the offenses charged in the
indictment." Id. "In reviewing an appeal based on a claim of constructive amendment,
we consider whether the admission of evidence or the jury instructions created a
substantial likelihood that the defendant was convicted of an uncharged offense." Id.(internal punctuation and citation omitted).
The language difference between "producing" and "causing the production of"
is not sufficiently material to create a variance in Starr's case. The indictment against
Starr did not specifically charge him as a principal on an aiding and abetting theory;
however, such specificity is not required.8 See United States v. McKnight, 799 F.2d
443, 445 (8th Cir. 1986) ("It is well established . . . that a defendant may be convicted
of aiding and abetting . . . even though he may not have been formally charged in that
capacity. The reason for this rule is that section 2 does not create a separate offense,
it simply makes . . . aid[ers] and abet[ters] . . . punishable as principals."). Therefore,
it follows that there is no variance or constructive amendment problem when a
defendant is convicted as an aider or abetter even though such an allegation is not
included in the indictment. We hold that the jury instructions did not violate Starr's
due process rights.
C. Starr's Motion for Judgment of Acquittal
Starr next argues that the district court erred in denying his motion for judgment
of acquittal because the evidence presented at trial was insufficient to convict him.
8
An individual may be convicted as a principal violator of a crime if the person
aids or abets in its commission. 18 U.S.C. § 2; see also 18 U.S.C. § 2, Revision Notes
and Legislative Reports (stating that the section as revised "removes all doubt that one
who puts in motion or assists in the illegal enterprise or causes the commission of an
indispensable element of the offense by an innocent agent . . . is guilty as a principal
even though he intentionally refrained from the direct act constituting the completed
offense"); and United States v. Beardslee, 609 F.2d 914, 919 (8th Cir. 1979) (stating
that "the aiding and abetting statute merely codified the accepted principles governing
who could be held liable for the commission of a substantive offense").
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"[T]he [district] court on the defendant's motion must enter a judgment of acquittal of
any offense for which the evidence is insufficient to sustain a conviction." Fed. R.
Crim. P. 29. "When a district court considers a motion for acquittal, it does so with
'very limited latitude.' The court should not assess the credibility of the witnesses or
weigh the evidence." United States v. Hernandez, 301 F.3d 886, 889 (8th Cir. 2002).
Starr's sufficiency arguments fail. Starr argues his version of the facts was
reasonable; however, the pertinent inquiry is whether there is sufficient evidence to
support the conviction if the government's evidence is accepted. See United States v.
Grover, 511 F.3d 779, 779 (8th Cir. 2007) (stating that "[o]nly if no reasonable jury
could have found the defendant guilty will we reverse"). If believed, the government's
evidence could have convinced a reasonable jury to convict him.
1. Sexual Exploitation and Attempted Solicitation
of a Minor Convictions
Starr alleges that the evidence is insufficient to sustain a conviction on counts
1, 3, and 7. Specifically, Starr contends that the government failed to show that he
used, persuaded, induced, enticed, or coerced his alleged victims to send him pictures.9
Starr argues that this element cannot be met because V.M., K.E., and K.S. acted
voluntarily. And with regard to count 3, Starr also argues that because there was no
return address or note inside the package that was sent to K.E., the jury could not
conclude, beyond a reasonable doubt, that he sent the camera to K.E. We disagree on
both claims.
Starr's argument ignores his role in convincing the victims to send the sexually
explicit photographs to him. In his dealings with V.M., K.E., and K.S., it was Starr
who introduced the sexual dimension to their relationships and requested the
9
In his brief, Starr inaccurately identifies count 5 as the sexual exploitation
charge involving K.S.; this charge was included in the indictment at count 7.
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photographs. Given the record proof of Starr's overt solicitation, we conclude that
there was sufficient evidence for the jury to find that Starr used, persuaded, induced,
enticed, or coerced these individuals to send him sexually explicit pictures of
themselves. Also, the jury's verdict is consistent with record evidence that Starr sent
the camera used to produce pornographic images to K.E. At trial, the government
presented evidence of Starr's Internet dealings with K.E., his repeated requests from
Starr for pictures of K.E., and his knowledge that she did not have a camera to take
and send these pictures. The absence of a note or return address did not render the
evidence insufficient.
2. Receiving Child Pornography Convictions
Starr argues that the evidence was insufficient to sustain convictions on counts
2 and 8 because there was insufficient evidence presented that he personally received
or attempted to receive the images of V.M. or K.S., respectively.
Starr argues that because V.M. only talked with "darklordmaster11" over the
Internet and Mrs. Starr had access to Starr's email accounts, there is no way the
government could have proven beyond a reasonable doubt that Starr sought the
images. Starr's version of events, however, is not supported by the record. Detective
Miller testified that Starr admitted on multiple occasions owning the online profile
"darklordmaster11" and the explicit photos of V.M. These facts supply sufficient
evidence to sustain the jury's verdict.
With regard to count 8, Starr argues that other individuals had access to his
office computer and that his door did not have a lock on it. We find this argument
unavailing because the record clearly establishes Starr's dealings with K.S.—K.S.
testified, and telephone records confirmed, that Starr and K.S. engaged in telephone
sex and that Starr requested the photos to use in these sessions. Given Starr's
documented dealings with K.S., the jury reasonably could infer that Starr knowingly
possessed the photos of K.S., and we decline to disturb its finding.
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3. Possession of Child Pornography Convictions
Starr's final evidentiary argument contends that the evidence was insufficient
to sustain his conviction on counts 4, 5, 6, and 9. On counts 4 and 5, Starr argues that
the government failed to prove that he possessed the images prior to his wife's
delivery of the items to police. Starr asserts that Mrs. Starr's failure to specifically
testify that she found the photos among his personal items and knew them to be his
is fatal to the government's case. However, given E.M.'s testimony that she sent the
photos to Starr when she was 17 years old and Starr's admission that he possessed the
photos, we reject his argument.
With regard to count 6, Starr again argues that his wife may have planted the
photos in his desk to frame him. However, as explained previously, this version of
events is not borne out by the evidence.
Starr also challenges the knowingly element of count 9, but this argument fails
for the same as his challenge to the sufficiency of evidence to prove count 8—the
record clearly establishes his relationship with K.S. and provides a sound basis on
which the jury could infer that he knowingly possessed the photos.
Crediting the testimony of the witnesses, as we must under our standard of
review, we conclude that there is sufficient evidence to support Starr's conviction on
each count. Accordingly the district court did not err in denying Starr's motion for a
judgment of acquittal.
D. Starr's Motion for New Trial
Similar to his previous argument, Starr argues that given the weakness of the
government's case, the district court erred in denying his motion for a new trial.
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"Upon the defendant's motion, the [district] court may vacate any judgment and
grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33. A district
court may "weigh the evidence, disbelieve witnesses, and grant a new trial even where
there is substantial evidence to sustain the verdict." United States v. Campos, 306 F.3d
577, 579 (8th Cir. 2002). However, "[u]nless the district court ultimately determines
that a miscarriage of justice will occur, the jury's verdict must be allowed to stand."
Id. A district court may grant a new trial under Rule 33 "only if the evidence weighs
so heavily against the verdict that a miscarriage of justice may have occurred."
Motions for new trials based on the weight of the evidence are generally
disfavored. That being said, the district court has broader discretion to
grant a new trial under Rule 33 than to grant a motion for acquittal under
Rule 29, but it nonetheless must exercise the Rule 33 authority
"sparingly and with caution."
Campos, 306 F.3d at 579 (citation omitted); see also 3 Charles Alan Wright, Nancy
J. King, & Susan R. Klein, Federal Practice and Procedure § 553 (3d ed. 2004)
(stating that granting new trial under Rule 33 is unusual remedy that is reserved for
"exceptional cases in which the evidence preponderates heavily against the verdict").
We hold that the evidence does not weigh heavily against the verdict; consequently,
we conclude that the district court did not abuse its discretion in denying Starr's new
trial motion.
E. Application of the Sentencing Guidelines
Starr raises several arguments regarding the district court's calculation of his
Guidelines sentence.
Under Gall v. United States, "a district court should begin all sentencing
proceedings by correctly calculating the applicable Guidelines range." 128 S. Ct. 586,
596 (2007). We review the district court's findings of fact for clear error and its
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interpretation and application of the Guidelines de novo. United States v. Sallis, 507
F.3d 646, 650 (8th Cir. 2007).
1. The 1987 convictions
Starr first argues that the district court erred in counting his 1987 convictions
when calculating his criminal history. He argues that the evidence is insufficient to
prove that he committed child exploitation with E.M. and T. and that there is no
evidence that he was actually in possession of child pornography anytime between the
late 1990s and 2005. Consequently, he argues those activities should not be
considered as relevant conduct and, therefore, his convictions in 1987 are too old to
be counted.
For criminal history scoring, district courts must count "[a]ny prior sentence of
imprisonment exceeding one year and one month that was imposed within fifteen
years of the defendant's commencement of the instant offense . . . ." U.S.S.G. §
4A1.2(e)(1). "Conduct that is part of the instant offense means conduct that is relevant
conduct to the instant offense under the provisions of § 1B1.3 (Relevant Conduct)."
Relevant conduct includes "all acts . . . committed, aided, abetted, counseled,
commanded, induced, procured, or willfully caused by the defendant . . . ." U.S.S.G.
§ 1B1.3(a)(1).
As we previously explained, sufficient evidence supports Starr's convictions
and demonstrates that Starr's instant offenses began in the mid-1990s. Given that
Starr's 1987 sentence is well within fifteen years of some of the charged offenses, we
hold that the district court did not err in counting Starr's 1987 convictions in
calculating his criminal history points.
2. Offense Committed While On Supervised Release
Similar to his previous argument, Starr argues that the evidence is insufficient
to prove that he committed his offenses while on supervised release.
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The Guidelines require an additional "2 points if the defendant committed the
instant offense while under any criminal justice sentence, including . . . supervised
release . . . ." U.S.S.G. § 4A1.1(d). The addition of the two points is required "if the
defendant committed any part of the instant offense (i.e., any relevant conduct) while
under any criminal justice sentence . . . ." § 4A1.1 cmt. n.4.
At sentencing, if the district court finds facts, it is required to do so by a
preponderance of evidence. See United States v. Phillips, 506 F.3d 685, 688 (8th Cir.
2007) ("Because the sentencing guidelines are advisory under Booker, enhancements
to the advisory guidelines may be based upon facts found by the sentencing court by
a preponderance of the evidence"). Here, the district court had sufficient evidence to
find that Starr's relevant conduct started in the mid-1990s. Given this finding, it is also
more likely than not that he possessed child pornography at times until his arrest in
2006. Part of this time he was on supervised release;10 therefore, the district court was
correct to add two points to Starr's criminal history under § 4A1.1(d).
3. Sexual Exploitation of a Minor
Starr's remaining arguments regarding his Guidelines sentence challenge the
calculation of his offense level.11
10
Starr began supervised release in December 2000, and he was discharged in
December 2003.
11
We note that all of Starr's challenges to the enhancements applied in his
sentencing will be no more than harmless error unless he can demonstrate that his
maximum total offense level is 37 or lower. See U.S.S.G. Sentencing Table
(recommending a maximum sentence of life for all category V defendants with a
minimum total offense level of 38); see also United States v. Garcia-Juarez, 421 F.3d
655, 657 (8th Cir. 2005) ("One example of a harmless error is when the resulting
sentence lies in an overlap between the correct and incorrect Guidelines ranges."). The
district court assessed him a total offense level of 47, but treated it as a 43 (the highest
offense on the Sentencing Table) for the purpose of charting his offense.
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First, he argues that the district court erred in applying a higher adjusted offense
level by applying the cross reference under U.S.S.G. § 2G2.2(c)(1).
Under the Guidelines "[i]f the offense involved causing . . . a minor to engage
in sexually explicit conduct for the purpose of producing a visual depiction of such
conduct, apply §2G2.1 . . . if the resulting offense level is greater than that determined
above." U.S.S.G. § 2G2.2(c)(1). "The cross reference in subsection (c)(1) is to be
construed broadly and includes all instances where the offense involved employing,
using, persuading, inducing, enticing, coercing, transporting, permitting, or offering
or seeking by notice or advertisement, a minor to engage in sexually explicit conduct
for the purpose of producing any visual depiction of such conduct." U.S.S.G. §
2G2.2(c)(1) cmt. n.5.
Prior to the application of the cross reference, Starr faced a base offense level
of 18 for possession of child pornography. Applying the cross reference raised his
base offense level under § 2G2.1 to 32. The PSR recommended the application of the
cross reference to § 2G2.1 because Starr caused the production of the illegal material.
Starr's argument against the application of this cross reference is, in essence, another
sufficiency of the evidence argument. It fails. We hold that the evidence was sufficient
for the district court to find that Starr caused the production of sexually explicit
images of a minor.
4. Masochism Enhancement
Starr next argues that the district court erred in applying a four-level masochism
enhancement. Starr asserts that sexual penetration of a minor with a foreign object in
this instance should not meet the definition of violence.
When calculating the Guidelines, the court should enhance the offense level by
four levels "[i]f the offense involved material that portrays sadistic or masochistic
conduct or other depictions of violence . . . ." U.S.S.G. § 2G2.1(b)(4).
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In determining that this enhancement should apply, the district court relied on
United States v. Parker, 267 F.3d 839, 847 (8th Cir. 2001), in which we held that self-
penetration by a foreign object qualifies as violence. Also, in Parker we defined
violence under this subsection using the dictionary definition of the term. Id. (stating
that "Webster's Dictionary defines 'violence' as 'exertion of any physical force so as
to injure or abuse'"). Starr concedes that E.M. was penetrated with a foreign object,
but he attempts to distinguish Parker by arguing that Parker involved a very young
child whereas the victim in question here was 17. He further contends that the absence
of evidence of any pain or injury suffered on the part of E.M. prohibits the application
of the enhancement. Starr's arguments are unpersuasive and Parker controls here.
And, as we stated in Parker, "[g]iven the plain meaning of 'violence,' it is difficult to
imagine that the sexual penetration with a foreign object of a minor female would not
qualify as 'violence' even if self-inflicted." Id.
5. Vulnerable Victim Enhancements
Starr next argues that the district court erred in determining that E.M. was a
vulnerable victim and applying a two-level enhancement for her status.
The district court should apply a two-level enhancement to the defendant's
offense level "[i]f the defendant knew or should have known that a victim of the
offense was a vulnerable victim . . . ." U.S.S.G. § 3A1.1(b)(1). However, the court
should not "apply subsection (b) if the factor that makes the person a vulnerable
victim is incorporated in the offense guideline." U.S.S.G. § 3A1.1 cmt. n.2.
This enhancement was not applied with most of the victims because most of the
victims' possessed only age as a vulnerable characteristic. The district court applied
the vulnerable victim enhancement with respect to E.M. after the court determined that
she had psychological and family problems of which Starr was or should have been
aware. Starr acknowledges that E.M. had familial problems, but denies that there is
sufficient evidence in the record to support that she has significant psychological
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problems, citing a lack of psychiatric reports. There is, however, undisputed evidence
that Starr was aware of E.M.'s problem with self-mutilation, and although the parties
disagree whether E.M.'s problems were "significant," there was evidence in the record
on which the district court could infer that Starr used this problem to gain E.M.'s
confidence. Given this evidence, we conclude that the district court did not err in its
application of the vulnerable victim enhancement.
6. Misrepresentation of Identity Enhancement
Finally, Starr argues that the district court erred in applying an enhancement for
misrepresentation of identity. He argues that although he lied about his age there is no
evidence he did so for the purpose of producing sexually explicit material.
The district court should apply a two-level enhancement to a defendant's
offense level "[i]f, for the purpose of producing sexually explicit material, 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 sexually explicit conduct
. . . ." U.S.S.G. § 2G2.1(b)(6)(A).
Starr contends that he did not misrepresent his identity because he only lied
about his age and that he was otherwise truthful about himself. This argument is
foreclosed by the comments to the Guideline, which state, "[t]he misrepresentation to
which the enhancement . . . may apply includes misrepresentation of a participant's
. . . age . . . as long as the misrepresentation was made with the intent to persuade,
induce, entice, [or] coerce . . . a minor to engage in sexually explicit conduct for the
purpose of producing sexually explicit material." U.S.S.G. § 2G2.1 cmt. n.4. There
was ample evidence in the record from which the district court could conclude that
Starr's age misrepresentation was instrumental in getting the victims to engage in
sexually explicit conduct. The record is quite adequate to show that Starr sought the
production of sexually explicit images of the victims.
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He also argues that there was no misrepresentation because he gave enough
information for the girls to discover his true age. Specifically, he states, "Should K.E.
have taken the time to look, she could have found David Starr quite easily in a phone
book or online people-locator service, along with his likely date of birth, address, and
other information." The Guidelines, however, do not place the burden on minor
victims to research the age of a defendant.
We find no error in the district court's calculation of Starr's advisory sentence
under the Guidelines.
F. Reasonableness of the Sentence
In challenging the reasonableness of his sentence Starr argues that the district
court's sentence exaggerates the seriousness of his conduct. Starr points out that he
never actually met any of the victims in person and alleges that the victims themselves
were willing participants. Starr believes these facts lessened the heinousness of his
actions relative to other crimes and criminals and militate against a sentence as
lengthy as that imposed.
"We review a challenge to the reasonableness of a sentence for abuse of
discretion." United States v. Jones, 509 F.3d 911, 913 (8th Cir. 2007). Sentences
within the Guidelines are presumptively reasonable. United States v. Bryant, 446 F.3d
1317, 1319 (8th Cir. 2006). "Although a sentence within that range is presumed
reasonable, that presumption may be rebutted by reference to the factors listed in §
3553(a)." United States v. Cadenas, 445 F.3d 1091, 1094 (8th Cir. 2006) (citation
omitted); see also Rita v. United States, 127 S. Ct. 2456, 2462–68 (allowing appellate
courts to apply a presumption of reasonableness to within-Guidelines sentences). A
sentence within the Guidelines may be unreasonable "if the district court failed to
consider a relevant factor that should have received significant weight, gave
significant weight to an improper or irrelevant factor, or considered only appropriate
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factors but nevertheless committed a clear error of judgment . . . ." Id. (quoting United
States v. Walker, 439 F.3d 890, 892 (8th Cir. 2006)).
Starr fails to demonstrate that the district court abused its sentencing discretion.
The district court rationally and carefully calculated Starr's Guidelines range as its
sentencing starting point. The multiple enhancements applied by the district court
substantially raised the applicable Guidelines range of months of incarceration but did
not so inflate the calculation as to render the ultimate sentence unreasonable. Because
of Starr's high offense level, his advisory range is higher than the sentencing chart
accounts for—he has a total offense level of 47, and the highest offense level on the
chart is 43. At that offense level, the sentencing chart recommends a life sentence.
Starr received a sentence of 720 months. We find no abuse of discretion in this
case as a life sentence was recommended by the Guidelines. Starr has not shown that
the district court committed any procedural errors, failed to consider any relevant §
3553(a) factor, or improperly considered any irrelevant factor; therefore, we hold that
his sentence is not unreasonable.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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