United States v. Roxanne Merrell

United States Court of Appeals
For the Eighth Circuit
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No. 15-3211
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Roxanne Merrell
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: October 20, 2016
Filed: November 18, 2016
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Before MURPHY, GRUENDER, and SHEPHERD, Circuit Judges.
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MURPHY, Circuit Judge.
Roxanne Merrell was convicted by a jury of two counts of producing child
pornography in violation of 18 U.S.C. § 2251(a) and (e). The district court1 sentenced
Merrell to 240 months imprisonment on each count, to be served concurrently.
1
The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
Merrell appeals, challenging various aspects of her trial and sentencing proceeding.
We affirm.
I.
In 2013 the Department of Homeland Security (DHS) began investigating
Travis Guenthner for the production of child pornography. The DHS investigation
ultimately uncovered 50,000 photographs and 90 videos of suspected child
pornography on Guenthner's various computers and devices. That same year
Guenthner pled guilty to five counts of sexual exploitation of minors and two counts
of coercion or enticement and was sentenced to life in prison.
Among the child pornography found in Guenthner's possession was a folder
containing sexually explicit photographs of the torso region of a prepubescent girl
(Minor A). A woman's hands are visible in some of the images in the folder,
sometimes spreading Minor A's genitals apart. Through forensic examinations the
investigators determined that these photos were created in 2010.
In 2014 Guenthner told investigators that Merrell had sent him the images of
Minor A and that she had produced the images at his request. Law enforcement
officers then obtained two search warrants, one for Merrell's home and the other for
the search of "[t]he person of Roxanne Merrell, specifically body views and
photography of her hands." Merrell was interviewed by officers during the execution
of the warrants. In her recorded interview, she admitted that she had taken the
pictures of Minor A sleeping and that her own hands appeared in the photographs.
Officers took Merrell to a police station after this interview and recorded 47
photographs of her hands.
Merrell was indicted on two counts of production of child pornography in
violation of 18 U.S.C. § 2251(a) and (e). At trial, the government elicited the
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testimony of federal agents and introduced audio clips of Merrell's initial interview
with law enforcement officers and cell phone records indicating that she and
Guenthner had telephoned each other around the time of the alleged offenses. The
government also called special agent James Cole as an expert witness. Over Merrell's
objections, Cole testified that it was likely that the adult hands visible in the
photographs of Minor A were hers.
The government also called Matthew Stephenson, a child protection worker
who had conducted a videotaped interview of Minor A prior to trial. When asked on
direct examination about Minor A's reaction when she saw one of the photos of herself
found in Guenthner's possession, Stephenson testified that "[Minor A] seemed
shocked and confused." On cross examination, Stephenson testified about the
questions he had posed to Minor A in the interview, but not her answers. After the
government rested, Merrell attempted to introduce the videotape of Stephenson's
interview of Minor A. The district court excluded the videotape as hearsay.
The jury found Merrell guilty on both counts. At sentencing the district court
determined that the applicable guideline range was 360 months to life, but varied
downward and imposed a sentence of 240 months imprisonment on each count, to be
served concurrently. Merrell appeals.
II.
Merrell first argues that the district court2 erred by denying her motion to
suppress the 47 photographs of her hands taken during execution of the search
warrant. When reviewing the denial of a suppression motion, the district court's
findings of fact are examined for clear error and its conclusions of law are reviewed
2
The Honorable Jeffrey J. Keyes, United States Magistrate Judge for the District
of Minnesota, prepared a report and recommendation on Merrell's pretrial motion to
suppress which was subsequently adopted by Judge Doty.
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de novo. United States v. Castellanos, 608 F.3d 1010, 1015 (8th Cir. 2010). Since
there is no dispute about the relevant facts, we give de novo consideration to Merrell's
arguments regarding the constitutionality of the search.
Merrell contends that the 47 photographs should have been suppressed because
they exceeded the scope authorized by the search warrant. We disagree. Although
Merrell is correct that the Fourth Amendment requires a warrant to describe
particularly "the things to be seized," there is no requirement that "search warrants
. . . include a specification of the precise manner in which they are to be executed."
Dalia v. United States, 441 U.S. 238, 255, 257 (1979) (citation omitted). We
generally leave the "details of how best to proceed with the performance of a search
authorized by warrant" to the judgment of the officers responsible for the search. Id.
at 257. In this case, the warrant specified that law enforcement could search "[t]he
person of Roxanne Merrell, specifically body views and photography of her hands."
The manner in which the officers carried out the search here did not exceed the scope
of the warrant.
Nor do we agree with Merrell that the photography process exceeded the
bounds of reasonableness required by the Fourth Amendment. See U.S. Const.
amend. IV; see also Hummel-Jones v. Strope, 25 F.3d 647, 650 (8th Cir. 1994) (noting
that a valid warrant does not immunize the execution of a search from reasonableness
review). The Fourth Amendment reasonableness standard "is flexible" and intends
to balance the private interests of citizens against the countervailing public interests
of law enforcement. See United States v. Bach, 310 F.3d 1063, 1067 (8th Cir. 2002);
see also Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977) (per curiam). Merrell
argues that such a balance was exceeded in her case because it was not necessary to
take her to the police station or to touch her in order to obtain the photographs. The
fact that there may be less intrusive means by which law enforcement officers could
conduct a search does not make it necessarily unreasonable, however. United States
v. Williams, 477 F.3d 974, 976 (8th Cir. 2007). Moreover, the abbreviated physical
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touching of Merrell was limited to her hands during a twenty minute period. Based
on the totality of the circumstances, we conclude that the manner in which law
enforcement executed the search warrant here was reasonable.
Finally, we reject Merrell's argument that her due process rights under the
Fourteenth Amendment were violated because the warrant's execution was an
"identification procedure" that had been "suggestive and unnecessary." The
photographing of Merrell's hands by law enforcement officers did not amount to an
identification procedure, as Merrell terms it, because the photographs were not being
presented to an eyewitness for the purpose of identifying an alleged criminal
perpetrator. See, e.g., Perry v. New Hampshire, 132 S. Ct. 716, 721 (2012). Rather,
the photographs were evidence gathered during the execution of a valid search
warrant. Merrell's due process rights were therefore not violated.
III.
Merrell next argues that the district court erred by admitting the expert
testimony of special agent Cole. The admission or exclusion of expert testimony is
reviewed for abuse of discretion. United States v. Roach, 644 F.3d 763, 763 (8th Cir.
2011) (per curiam). Under Federal Rule of Evidence 702 an expert witness may
provide opinion testimony if:
(a) the expert's scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact in
issue; (b) the testimony is based on sufficient facts or data; (c) the
testimony is the product of reliable principles and methods; and (d) the
expert has reliably applied the principles and methods to the facts of the
case.
When assessing whether expert testimony is based on scientific knowledge, trial
courts may consider various factors including: (1) whether the expert's technique can
be tested, (2) whether the technique "has been subjected to peer review and
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publication," (3) whether there is a "known or potential rate of error," and (4) whether
the technique is generally accepted within the relevant scientific community. Daubert
v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593–94 (1993). These same factors may
also be relevant in assessing the admissibility of an expert's testimony on the basis of
"technical, or other specialized knowledge." Fed. R. Evid. 702(a); see Kumho Tire
Co. v. Carmichael, 526 U.S. 137, 149–50 (1999). 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. See Kumho Tire Co., 526 U.S. at 152.
Assuming Merrell is correct that the district court abused its discretion by
failing to exclude Agent Cole's testimony, this failure was harmless. Improperly
admitted testimony warrants reversal of a conviction if the testimony "substantially
influence[d] the jury's verdict." United States v. Iron Hawk, 612 F.3d 1031, 1039 (8th
Cir. 2010). Agent Cole's testimony could not have substantially influenced the jury's
verdict here because of the overwhelming evidence provided by the government of
Merrell's guilt. Most important was Merrell's confession which had been captured on
tape by law enforcement officers. In that tape, she admitted that she had produced the
child pornography at issue and that the adult hands visible in the photographs were
hers. Merrell's confession was corroborated by evidence of the phone records between
Merrell and Guenthner around the time the photographs were produced. Since
substantial evidence other than Agent Cole's testimony supported the jury's verdict,
its improper admission does not warrant reversal for a new trial. See id.; see also
United States v. Oliver, 908 F.2d 260, 264 & n.3 (8th Cir. 1990).
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IV.
Merrell's third claimed error relates to the district court's exclusion of the
videotape of Stephenson's interview of Minor A as hearsay. We review the
evidentiary rulings of a district court for abuse of discretion and will not substitute our
judgment for its judgment. United States v. Condon, 720 F.3d 748, 754 (8th Cir.
2013). The district court did not abuse its discretion here.
Merrell argues that the videotaped interview of Minor A was admissible
because it fell within two exceptions to the hearsay rule: (1) present sense
impressions, and (2) then existing mental, emotional, or physical conditions. See Fed.
R. Evid. 803(1), (3). Even assuming that Minor A's statements fell within an
exception to the hearsay exclusion, we see no abuse of discretion by the district court's
decision to exclude the statements under Federal Rule of Evidence 403.
Merrell argues that the failure to admit the videotape of Minor A's interview
kept her from putting on an effective defense because she was prevented from
presenting witnesses on her own behalf. There is no indication that the district court
prevented Merrell from calling Minor A as a witness, however. Furthermore, Merrell
fails to identify a single, critical statement made by Minor A in the interview that
would have had the potential to affect the outcome of the case. We see no abuse of
discretion in the district court's conclusion that any probative value was substantially
outweighed by the videotape's potential to confuse the issues. See Fed. R. Evid. 403.
V.
Merrell also contends that the district court erred with respect to the jury
instruction on lascivious exhibition. We review a challenge to a jury instruction for
abuse of discretion and "will affirm so long as 'the instructions, taken as a whole,
fairly and adequately submitted the issues to the jury.'" United States v. Aleman, 548
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F.3d 1158, 1166 (8th Cir. 2008) (quoting United States v. Lalley, 257 F.3d 751, 755
(8th Cir. 2001)).
The district court used the Eighth Circuit Model Instruction on lascivious
exhibition, which is as follows:
Whether a visual depiction of the genitals or pubic area constitutes a
lascivious exhibition requires a consideration of the overall content of
the material. You may consider such factors as (1) whether the focal
point of the picture is on the minor's genitals or pubic area; (2) whether
the setting of the picture is sexually suggestive, that is, in a place or pose
generally associated with sexual activity; (3) whether the minor is
depicted in an unnatural pose or in inappropriate attire, considering the
age of the minor; (4) whether the minor is fully or partially clothed, or
nude; (5) whether the picture suggests sexual coyness or a willingness
to engage in sexual activity; (6) whether the picture is intended or
designed to elicit a sexual response in the viewer; (7) whether the picture
portrays the minor as a sexual object; (8) the caption(s) on the picture(s).
It is for you to decide the weight or lack of weight to be given to any of
these factors. A picture need not involve all of these factors to constitute
a lascivious exhibition of the genitals or pubic area.
Model Crim. Jury Instr. 8th Cir. § 6.18.2252A (2014). Merrell asked the district court
additionally to instruct the jury on the definition of lascivious exhibition outlined in
the Modern Federal Jury Instruction treatise available on LexisNexis, which states:
The term "lascivious exhibition" means a depiction which displays or
brings to view to attract notice to the genitals or pubic area of children
in order to excite lustfulness or sexual stimulation in the viewer. Not
every exposure of the genitals or pubic area constitutes a lascivious
exhibition.
Leonard B. Sand et al., 3 Modern Federal Jury Instructions-Criminal Instr. 62-7
(2016). Merrell contends the district court's refusal to give her proposed definitional
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instruction did not fairly submit the issues to the jury because the jury was deprived
of an opportunity to assess whether the photographs were "clinical" and therefore not
lascivious exhibition.
We see no abuse of discretion in the instructions given by the district court. It
is well settled that a defendant "is not entitled to a particularly-worded instruction
when the instructions actually given by the trial court adequately and correctly cover
the substance of the requested instruction." United States v. Espinoza, 684 F.3d 766,
783 (8th Cir. 2012) (quoting United States v. Cruz-Zuniga, 571 F.3d 721, 725 (8th
Cir. 2009)). Such is the case here. We therefore conclude the district court did not
abuse its discretion when it declined to give the specific instruction on lascivious
exhibition requested by Merrell.
VI.
Merrell's final argument is that the district court committed procedural error at
her sentencing proceeding and that her sentence is substantively unreasonable. Since
Merrell did not object during her sentencing proceeding, we review the district court's
actions at sentencing for plain error. United States v. Chavarria-Ortiz, 828 F.3d 668,
671 (8th Cir. 2016). We review the substantive reasonableness of Merrell's sentence
for abuse of discretion. United States v. Maxwell, 778 F.3d 719, 734 (8th Cir. 2015).
The procedural error claimed by Merrell is the district court's alleged failures
adequately to consider the sentencing factors outlined in 18 U.S.C. § 3553(a) or to
explain the reasons for the sentence imposed. A district court is not required to recite
the § 3553(a) factors mechanically or to "make specific findings on the record" about
each factor. United States v. Fry, 792 F.3d 884, 891 (8th Cir. 2015) (quoting United
States v. Deegan, 605 F.3d 625, 630 (8th Cir. 2010)). Instead, we review the record
to ensure the district court gave due consideration to the statutory factors in fashioning
the sentence. See United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en
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banc). If a case "is conceptually simple, and the record makes clear that the
sentencing judge considered the evidence and arguments, the law does not require the
judge to write or say more." Chavarria-Ortiz, 828 F.3d at 671 (citing Rita v. United
States, 551 U.S. 338, 359 (2007)).
After careful review of the record in this case, we conclude the district court
committed no procedural error. At sentencing the district court heard argument from
counsel for Merrell and from counsel for the government, as well as statements by
Merrell and Minor A's father. The district court made clear that the sentence imposed
was "appropriate and reasonable in light of the considerations set forth in 18 United
States Code, Section 3553(a)." The court specifically noted that it had taken into
consideration Merrell's history and characteristics and the offense conduct at issue,
concluding the "sentence imposed is sufficient, but not greater than necessary, to
afford adequate deterrence to future criminal conduct." In the context of this case, we
do not think the district court was required to say more.
Nor do we conclude that Merrell's 240 month sentence on each count, to be
served concurrently, is substantively unreasonable. A sentence is substantively
unreasonable if the district court "fails to consider a relevant factor that should have
received significant weight, gives significant weight to an improper or irrelevant
factor, or considers only the appropriate factors but commits a clear error of judgment
in weighing those factors." United States v. Watson, 480 F.3d 1175, 1177 (8th Cir.
2007). Merrell argues that her sentence is substantively unreasonable because other
defendants in this circuit have received shorter sentences for comparable offense
conduct. At base, this is a disagreement with the manner in which the district court
weighed the § 3553(a) factors in her case and does not establish that the district court
abused its discretion. See United States v. Lozoya, 623 F.3d 624, 627 (8th Cir. 2010).
Moreover, we note that the district court varied downward 120 months from the
bottom of the guideline range. As we have said before, "when a district court has
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sentenced a defendant below the advisory guidelines range, it is nearly inconceivable
that the court abused its discretion in not varying downward still further." Maxwell,
778 F.3d at 734 (citation omitted) (internal quotation marks omitted). Merrell has
failed to establish that hers is the rare case in which a decision not to vary further
amounted to an abuse of discretion.
VII.
Accordingly, we affirm the judgment of the district court.
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