United States v. Rex Furman , 867 F.3d 981 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-3238
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Rex Lee Furman
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: June 7, 2017
Filed: August 14, 2017
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Before WOLLMAN, ARNOLD, and GRUENDER, Circuit Judges.
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WOLLMAN, Circuit Judge.
A jury convicted Rex Lee Furman of thirteen counts of producing child
pornography, in violation of 18 U.S.C. §§ 2, 2251(a), 2251(e), and 3559(e); two
counts of distributing child pornography, in violation of 18 U.S.C. § 2252(a)(2) and
(b)(1); one count of receiving child pornography, in violation of 18 U.S.C.
§ 2252(a)(2) and (b)(1); one count of possession of child pornography, in violation
of 18 U.S.C. § 2252(a)(4)(B) and (b)(2); and one count of commission of a felony
offense involving a minor when required to register as a sex offender, in violation of
18 U.S.C. § 2260A. The district court1 sentenced Furman to life imprisonment, as
well as to a 120-month consecutive sentence. Furman appeals, arguing that the
district court erred in denying his motion for judgment of acquittal on the production
and distribution counts and in admitting evidence of his 1999 conviction of first-
degree criminal sexual conduct. He also contends that his sentence violates the
Eighth Amendment’s prohibition on cruel and unusual punishment. We affirm.
In 1981, when Furman was eighteen years old, he sexually abused his five-
year-old stepsister. He pleaded guilty in Wright County, Minnesota, in November
1981 to criminal sexual conduct in the fourth degree. He admitted that he had
touched the victim’s genitals for the purpose of his own sexual gratification.
In 1998, Furman sexually assaulted his ten-year-old daughter, R.F., by inserting
his finger into her vagina and by forcing her to perform oral sex on him. He was
found guilty in Hennepin County, Minnesota, in January 1999 of engaging in criminal
sexual conduct in the first degree. Furman was thereafter required to register as a sex
offender.
Upon his release from prison in November 2011, Furman moved into a house
on his brother’s property, where he had access to the Internet. Furman brought R.F.’s
three-year-old daughter, A.Z., to live with him in August 2012. In September or
October 2012, R.F. and her three other children—a baby boy, a five-year-old girl
named S.Z., and a seven-year-old boy named N.Z.—also moved in with Furman. The
children were removed from Furman’s home in March 2013.
1
The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
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Furman used peer-to-peer file-sharing networks to download hundreds of
images of child pornography. From at least December 2012 through August 2013,
Furman used Ares 2.1.9 file-sharing software to access the Ares file-sharing network
from his eMachines computer. From at least October 2013 through February 2014,
Furman used LimeShare Pro 2.5 and 2.6 file-sharing software to access the Gnutella
file-sharing network from his HP computer.
When he installed the LimeShare Pro 2.6 software, Furman was prompted to
answer questions regarding sharing his files with other users. One prompt required
him to choose a folder in which his files would be downloaded. The prompt stated,
“This folder will also be shared with other [G]nutella users by default.” Furman
chose to download files into and share files from the software’s default folder called
“Shared.” Whenever his computer was running the LimeShare Pro program, Gnutella
users could download files from Furman’s shared folder.
Special Agent David Giguere worked in the predatory crimes unit of the
Minnesota Bureau of Criminal Apprehension. On August 23, 2013, Giguere used law
enforcement software to identify computer users who were making child-pornography
files available for others to download on the Ares file-sharing network. Giguere
downloaded two child-pornography videos from the IP address associated with
Furman, including one entitled “1(2)(3)(2).mpg.”
Minneapolis Police Officer Dale Hanson was assigned to the Federal Bureau
of Investigation’s child exploitation task force. From October 2013 through January
2014, Hanson used law enforcement software to search file-sharing networks for
child pornography. During that time, Hanson used the Gnutella file-sharing network
to download eighteen images of child pornography from the shared folder on
Furman’s HP computer. Among the files Hanson downloaded was one entitled,
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“Private Daughter Mellony stolen pedo lolita pthc hussyfan preteen nude (10yo)
01(1).jpg” (Private Daughter Mellony.jpg).2
On February 13, 2014, law enforcement officers executed a search warrant at
Furman’s residence and seized his eMachines and HP computers, as well as his
computer storage devices. Giguere interviewed Furman, who immediately made the
following assertions: “I’m not trying to do anything illegal,” “[m]ost of it is art,” and
“I don’t distribute.” Furman admitted that he possessed child pornography and that
he had downloaded it using a file-sharing network. He explained how file sharing
worked, saying, “[Y]ou got a share file . . . on the program. When you download if
you don’t take it outta the share file[,] it shares it back . . . to other people.” Furman
expressed his belief that possessing child pornography was lawful and maintained
throughout the interview that he was not distributing it, explaining that he moved or
deleted files from his shared folder soon after he downloaded the files from other
users. He claimed, “I don’t leave it in the shared folder long enough . . . I cut
everybody off usually.” Furman also claimed that he did not know that his files could
be downloaded after he “g[o]t out of the file.”
As the officers were leaving the residence, Furman told them that they would
find photos or a video of Furman and R.F. applying medication to his granddaughters,
A.Z. and S.Z., for a yeast infection. When the images were not found on the seized
storage devices, Giguere stopped by Furman’s home on September 19, 2014, to ask
about them. Furman indicated that the discs containing the images were taken during
the search. He explained that he or R.F. took the photos and the video of the girls and
that the images were taken in his bedroom shortly after A.Z. began staying with him.
According to Furman, the images were “straight shot[s]” of A.Z.’s and S.Z.’s vaginas
to “prove that nothing was wrong with [the girls].” Furman said that the images did
not show any application of medicine, but rather they were taken “before anything
2
“Pthc” is an acronym for preteen hard core.
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had happened up here.” Furman explained that he and R.F. had taken the girls to the
clinic and that he “told the doctor [that N.Z.’s] been after ‘em,” indicating that N.Z.
might have molested the girls, but that the doctor “said, no, . . . they look fine.”
Furman also told Giguere that he intended to take only photos, but that he initially
had his camera on the video setting by mistake.
Law enforcement officers eventually located two mini-DVDs containing the
video and photos of the girls. Data recovered from the DVDs included the dates and
times the images were produced. The first DVD indicated that on August 26, 2012,
at approximately 6:00 p.m., Furman took nonpornographic photos of A.Z. Four hours
later, Furman took a four-second video and four close-up photos of the vaginal area
of either A.Z. or S.Z., while she was in his bedroom. Each of the four photos showed
Furman’s fingers spreading the victim’s labia.
The second DVD indicated that on September 3, 2012, from 12:23 to
12:27 a.m., Furman took several photos of A.Z. as she lay in a chair in Furman’s
home. A.Z. had just turned four years old. The first photo was a close-up of A.Z.’s
genital area covered by underwear. The next set of photos showed A.Z.’s face as she
appeared to be sleeping. A.Z. was then posed for a photo. In the next photo, A.Z.’s
underwear was pulled back to expose her vagina. During a forty-five-second pause,
Furman removed A.Z.’s underwear. He then took six close-up photos of A.Z.’s
vaginal area, while using his fingers to spread her labia, and one close-up photo of
A.Z.’s anal area, while using his fingers to spread her buttocks.
Giguere called Furman on September 29, 2014, to discuss the video and
photos. Furman admitted that he recorded a short video and took photos of his
granddaughters’ vaginas in August 2012. When Giguere mentioned that the first
photo was dark, Furman responded, “I don’t think any of those turned out very good.”
Furman maintained that any images were for documentation purposes. Although he
initially denied that his hands were in any of the pictures, he later said, “I admit one,
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I might have reached down, I’m not sure.” Furman denied any knowledge of the
September 3 photos.
A grand jury returned an eighteen-count indictment on October 7, 2014, and
a superseding eighteen-count indictment was filed on October 14, 2015. Counts 1
through 13 alleged that Furman had produced images of child pornography, with
counts 1 through 8 relating to the photos dated September 3, 2012, and counts 9
through 13 relating to the video and photos dated August 26, 2012. Counts 14 and
15 alleged that Furman had distributed child pornography, with count 14 relating to
the file Private Daughter Mellony.jpg that officer Hanson downloaded on December
30, 2013, and count 15 relating to the file 1(2)(3)(2).mpg that special agent Giguere
downloaded on August 23, 2013.3 Furman pleaded not guilty.
The government provided pretrial notice to Furman that it intended to offer
evidence of his 1981 and 1999 criminal-sexual-conduct convictions under Federal
Rule of Evidence 414, which permits the introduction of propensity evidence in child-
molestation cases. Furman moved in limine to exclude evidence of the circumstances
surrounding the convictions, arguing that the danger of unfair prejudice substantially
outweighed the probative value of that evidence. The district court ruled that the fact
of conviction was admissible and that some evidence of the surrounding
circumstances was critical to the government’s case. In finding that Furman would
not be unfairly prejudiced, the district court explained that “the balance goes in favor
of allowing the substantive evidence in and overcomes any prejudice that Mr. Furman
might have.”
3
Furman has not challenged his convictions for possession or receipt of child
pornography (counts 16 and 17) or for commission of a felony offense involving a
minor when required to register as a sex offender (count 18).
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During Furman’s four-day trial, the government presented testimony from the
investigating officers, the forensic examiner, the doctors who had seen A.Z. and S.Z.
in 2012, and other witnesses. The government also presented the images of child
pornography that Furman allegedly had produced, and played for the jury Giguere’s
recorded interviews of Furman. Over defense counsel’s objection, the district court
admitted evidence regarding Furman’s 1981 and 1999 convictions, which was limited
to the judgments of conviction and testimony describing the age, gender, and familial
relationship of the victims and the type of sexual conduct involved. The district court
instructed the jury that it could consider evidence of Furman’s prior convictions for
any relevant purpose, but that it was forbidden from “convict[ing] a person simply
because you believe he may have committed similar acts in the past.” After the jury
found Furman guilty on all counts, the district court denied Furman’s motion for
judgment of acquittal.
Furman faced a mandatory sentence of life imprisonment under 18 U.S.C.
§ 3559(e) for repeated sex offenses against children and a mandatory, consecutive
sentence of ten years’ imprisonment under 18 U.S.C. § 2260A for committing a
felony offense involving a minor while being a registered sex offender. Furman
objected to the mandatory life sentence as unconstitutional. The district court
overruled the objection, “find[ing] that a mandatory life sentence [was] not grossly
disproportionate to [Furman’s] crimes,” particularly in light of his “high degree of
culpability, which has caused serious harm to his victims and society,” and his
“demonstrated history of recidivism.”
Furman argues that the district court erred in denying his motion for judgment
of acquittal on the production and distribution counts of conviction. See Fed. R.
Evid. 29(a). He contends that the evidence was insufficient to prove that he produced
or distributed child pornography. We review de novo the denial of a motion for
judgment of acquittal, viewing the evidence in the light most favorable to the verdict
and giving the verdict the benefit of all reasonable inferences. United States v. Hill,
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750 F.3d 982, 987 (8th Cir. 2014). We will reverse a conviction “only if no
reasonable jury could have found the defendant guilty beyond a reasonable doubt.”
Id.
Furman argues that the government failed to prove that he produced the images
of child pornography identified in counts 1 through 13 of the indictment. He
contends that he never admitted taking the August 26, 2012, images. He argues that
he admitted only that he had documented the application of medication onto his
granddaughters’ vaginas, something that the images do not depict. Furman continues
to deny any knowledge of the September 3, 2012, photos. He focuses on the
differences between what he told Giguere and what the evidence showed. For
example, he told Giguere that photos were taken in the bedroom, but some of the
September 3 photos were taken in the living room. Furman also denied taking any
pictures of the victim’s buttocks, yet one of the September 3 images was a photo of
a man’s hand spreading a child’s buttocks to reveal the child’s anus.
The alleged discrepancies between what Furman told Giguere and what the
evidence showed do not disprove the government’s case or otherwise render the
evidence insufficient. The photos and video identified in counts 1 through 13 were
recovered from two mini-DVDs, which law enforcement officers found in a case that
was located on a shelf near Furman’s bed. Data extracted from the DVDs showed
that the photos were taken in Furman’s home and on his camera on August 26 and
September 3, dates on which A.Z., who turned four on September 1, was the only
person staying with Furman in his home.
Furman admitted that he recorded a video and took photos of his
granddaughters’ vaginas. He also described the images to Giguere, explaining that
“[none] of those turned out very good” and that he accidently recorded the video
when he was trying to take a still photo. Furman shifted his explanation regarding
the purpose for the August 2012 photos. He first claimed that it was to document the
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application of medication to clear a yeast infection. He then said that the photos did
not show any application of medication, but rather documented the condition of the
girls’ vaginas because of a concern that N.Z. had been molesting them. Moreover,
Furman falsely stated that R.F.’s fingers were shown touching the child’s genitals in
the images, but eventually admitted that he “might have reached down” to touch the
child’s genitals. The September 3 set of photos begins with nonpornographic photos
of A.Z.’s face and her body. The next eight photos depict the child’s vagina and anus
and are similar to the pornographic photos taken on August 26. In light of this and
other evidence presented during trial, we conclude that a reasonable jury could find
that Furman himself produced the images of child pornography that were charged in
counts 1 through 13 of the superseding indictment.
Furman next argues that he did not “knowingly distribute” child pornography
as charged in counts 14 and 15. He claims that the government failed to prove that
he had the requisite intent to commit the crime, arguing that the evidence of his
February 2014 interview indicated that he did not know that he was sharing files.
Furman points to his statements to Giguere that he “doesn’t distribute” child
pornography, that he immediately moved or deleted the files containing child
pornography from his shared folder, and that he did not understand how file sharing
worked. Furman also indicated to Giguere, however, that he knew how to access the
shared folders of other network users and that he knew how to download their files.
Furman also knew that other users could download files from his shared folders
because he told Giguere, “[Y]ou got a share file . . . on the program. When you
download if you don’t take it outta the share file[,] it shares it back . . . to other
people.” Although Furman claimed that he immediately moved or deleted the files
from his shared folders, Giguere testified that files sometimes remained in Furman’s
shared folders for months before he moved or deleted them. Furthermore, Giguere
and Hanson testified that they were able to download child-pornography files. We
thus conclude that the evidence presented at trial was sufficient to allow a reasonable
jury to find that Furman knowingly distributed child pornography. See Hill, 750 F.3d
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at 988 (recognizing that use of file-sharing program and knowledge of computers
supported the jury’s finding that the defendant knowingly distributed child
pornography); United States v. Collins, 642 F.3d 654, 656-57 (8th Cir. 2011) (same).
Furman argues that evidence of his 1999 conviction for first-degree criminal
sexual conduct should have been excluded as unfairly prejudicial. He contends that
this evidence caused the jury to “ignore[] the lack of evidence when it came to the
production counts.” Appellant’s Br. 19. We review for abuse of discretion the
district court’s decision to admit the evidence. See United States v. Bentley, 561 F.3d
803, 814 (8th Cir. 2009) (standard of review).
The district court admitted the evidence under Federal Rule of Evidence 414,
which provides:
In a criminal case in which the defendant is accused of an offense of
child molestation, evidence of the defendant’s commission of another
offense or offenses of child molestation is admissible, and may be
considered for its bearing on any matter to which it is relevant.
“Federal Rule of Evidence 414 is an exception ‘to the general rule that evidence of
past crimes may not be used to prove the character of a person in order to show action
in conformity therewith.’” Bentley, 561 F.3d at 814 (quoting United States v.
Withorn, 204 F.3d 790, 794 (8th Cir. 2000)). Evidence admitted under Rule 414
remains subject to Rule 403’s balancing test, however, which allows the district court
to exclude relevant evidence if its probative value is substantially outweighed by a
danger of unfair prejudice. Id. at 815. To be excluded under Rule 403, the evidence
must be unfairly prejudicial. Id. “‘Because propensity evidence is admissible under
Rule 414,’ the fact that evidence of prior acts suggests a propensity to molest
children, ‘is not unfair prejudice.’” Id. (quoting United States v. Gabe, 237 F.3d 954,
960 (8th Cir. 2001)).
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The district court did not abuse its discretion in admitting evidence of Furman’s
1999 conviction. The evidence that Furman sexually assaulted his ten-year-old
daughter was probative of Furman’s sexual interest in prepubescent female family
members. It thus helped demonstrate his intent and motive for purposes of the counts
relating to producing, distributing, receiving, and possessing child pornography. This
evidence also showed Furman’s propensity to sexually assault young female family
members. The district court tempered the prejudicial effect of this evidence by
providing a jury instruction on propensity evidence. While the evidence may have
been prejudicial, it was not unfairly so.
Furman argues that the mandatory life sentence required by § 3559(e) for
repeat child sex offenders is categorically unconstitutional under the Eighth
Amendment. In doing so, he asks us to extend the reasoning of Miller v. Alabama,
567 U.S. 460 (2012), which held that mandatory sentences of life imprisonment
without the possibility of parole are unconstitutional for juvenile offenders. We
decline to do so. See Harmelin v. Michigan, 501 U.S. 957, 995 (1991) (“There can
be no serious contention . . . that a sentence which is not otherwise cruel and unusual
becomes so simply because it is ‘mandatory.’”).
The judgment is affirmed.
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