United States v. Graeme Pierson ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-1335
___________
United States of America, *
*
Plaintiff – Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Graeme Pierson, *
*
Defendant – Appellant. *
___________
Submitted: September 24, 2008
Filed: October 20, 2008
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Before MURPHY, ARNOLD, and BENTON, Circuit Judges.
___________
MURPHY, Circuit Judge.
Graeme Pierson was charged with attempted production of child pornography,
in violation of 18 U.S.C. § 2251(a), and attempting to induce a child to engage in
criminal sexual activities, in violation of 18 U.S.C. § 2422(b). Pierson was convicted
by a jury on both counts and sentenced to 300 months imprisonment by the district
court.1 On appeal Pierson challenges the sufficiency of the evidence, the admission
1
The Honorable Ronald E. Longstaff, United States District Judge for the
Southern District of Iowa.
at trial of a prior conviction for indecent contact with a child, a sentencing
enhancement under U.S.S.G. § 4B1.5 for repeat and dangerous offenders, and
application of a mandatory minimum sentence under 18 U.S.C. § 2251(e) based on a
qualifying prior conviction under state law. We affirm.
I.
Lieutenant Kent Smock of the Iowa Internet Crimes Against Children Task
Force of the Black Hawk County, Iowa Sheriff's Office established the undercover
profile of a fictional fourteen year old Iowa girl with the screen name brenda_j_2011.
Acting with that identity, he entered a Yahoo internet chat room for romance seekers
in the state of Iowa. On February, 9, 2007, the undercover profile was contacted by
an individual, later determined to be Graeme Pierson, using the screen name
Modelman_Matthew2006. In response to questioning by Pierson, brenda_j_2011
indicated that she was a fourteen year old girl. After Pierson requested a picture of
her, Lieutenant Smock sent him several photographs of a female officer taken when
she was approximately thirteen years old. Pierson responded that brenda_j_2011 was
cute, mentioned that he was looking for a girlfriend, and asked the undercover profile
to have sex with him. Pierson was forty four years old at the time.
Over the course of the following several months, Pierson communicated
regularly with brenda_j_2011 in chat rooms, through instant messaging, and offline
via cellular telephone text messaging. The conversations were invariably sexually
explicit and typically revolved around Pierson's attempt to induce the undercover
profile to have sexual relations with him and to perform graphic sexual acts for
transmission to him over the internet.
In order to achieve this goal, Pierson relied on a coterie of distinct internet
personas, styling himself variously as Modelman_Matthew2006 (a handsome nineteen
year old male), gpierson06 (Modelman_Matthew2006's terminally ill and love starved
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thirty six year old brother), strictartist05 (a twenty year old female), and jdepp2000
(ostensibly the actor Johnny Depp).
Pierson initially utilized his teenage persona, Modelman_Matthew2006, to make
contact with brenda_j_2011, earn her trust, and determine whether she was open to
sexual relations with an adult. Satisfied that she was willing, Pierson needed to
introduce an older persona into the mix in order to have sex with brenda_j_2011
because Modelman_Matthew2006 was supposedly nineteen while Pierson was forty
four. At this point Pierson introduced gpierson06, Modelman's adopted thirty six year
old brother who supposedly was dying of cancer and desperately in need of the succor
only sex could provide. Gpierson06 then began communicating regularly with the
undercover profile. In his efforts to procure sex and personal pornography from
brenda_j_2011, gpierson06 depended on both natural compassion for the terminally
ill and cold hard cash. For instance, gpierson06 informed brenda_j_2011 that if she
were willing to provide him with sex and explicit imagery, he would assist her in
obtaining a job as a model where she might earn as much as $50,000.
Strictartist05, Pierson's multi purpose female persona, first approached
brenda_j_2011 in the guise of an undercover officer on the hunt for pedophiles. As
strictartist05, Pierson asked brenda_j_2011 if she too was a police officer. When the
undercover profile reported this to gpierson06 and threatened to terminate their
relationship for fear of parental punishment, Pierson responded that strictartist05 was
a friend who was merely attempting to confirm that brenda_j_2011 was not a law
enforcement officer. Later, satisfied that brenda_j_2011 was a minor, Pierson
employed strictartist05 to attempt to persuade brenda_j_2011 to have sex with
gpierson06. Strictartist05 shared fictional tales of her own underage sexual
relationship with the adult gpierson06. These relations, according to strictartist05,
led to a lucrative career as a model. Finally, jdepp2000 contacted brenda_j_2011.
Pierson, posing as the international film star, explained that he too had befriended
strictartist05 through gpierson06. Jdepp2000 asserted that his friendship and untold
riches awaited brenda_j_2011 if she would only have sex with gpierson06.
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After Pierson mailed twenty seven dollars to the undercover profile for the
purpose of purchasing a webcam for her to use in a sexually explicit performance,
agents of the United States Postal Inspection Service obtained search and arrest
warrants and arrested him on May 4, 2007. Pierson was read his Miranda rights,
signed a waiver of those rights, and agreed to speak with the agents. During this
interview, Pierson made a series of damaging admissions. He admitted to using the
Modelman_Matthew2006, gpierson06, and strictartist05 screen names. He admitted
to engaging in sexually explicit communications with the undercover profile. He
admitted to sending money to the undercover profile for the purpose of purchasing a
webcam. He admitted that he wanted the undercover profile to transmit nude pictures
of herself to him via the webcam. He admitted that he would be sexually aroused by
viewing explicit photographs and moving images of a fourteen year old girl. He
admitted attempting to set up at least two meetings with the undercover profile.
Finally, Pierson maintained that while he had initially doubted whether the undercover
profile was actually fourteen years old, he had come to believe that she was a minor
over the preceding several weeks.
At trial Pierson attempted to paint a more benign portrait. He described the
internet chat rooms in which he spent his time as a virtual playground where visitors
indulged their fantasies through masquerade. The corpulent described themselves as
svelte. The old described themselves as young. Indeed, Pierson admitted at trial that
he used the strictartist05 screen name to appear to be a female. He also testified that
he had once entered into an online relationship with an individual who purported to
be a minor only to later discover that the object of his attention was middle aged.
Pierson asserted that he therefore believed throughout the course of their contact that
the undercover profile was an adult imitating a child. At one point Pierson conducted
research based upon identifying information provided by the undercover profile and
came to believe that he was communicating with a forty year old woman rather than
a fourteen year old girl. Pierson played along nonetheless he said because the thought
of engaging in sexual activity with a fourteen year old was exciting to him. Although
Pierson denied that he would ever act on his desire to engage in sexual contact with
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a minor, the government introduced evidence prior to the conclusion of trial that he
had previously been convicted in Iowa for indecent contact with a child.
The jury found Pierson guilty of one count of attempted production of child
pornography, in violation of 18 U.S.C. § 2251(a), and one count of attempting to
induce a child to engage in sexually explicit activities, in violation of 18 U.S.C. §
2422(b). At sentencing the district court found Pierson eligible for the U.S.S.G. §
4B1.5 enhancement for repeat and dangerous offenders and the mandatory minimum
sentence under 18 U.S.C. § 2251(e) for offenders with a qualifying prior conviction
under state law.
Pursuant to U.S.S.G. § 2G2.1, which covers offenses involving the sexual
exploitation of a minor, Pierson's base offense level was 32. Because the offense
involved a minor between the age of twelve and sixteen, Pierson's offense level was
increased by two pursuant to § 2G2.1(b)(1)(B). Because the offense involved the
knowing misrepresentation of the participant's identity with the aid of a computer in
order to persuade a minor to engage in sexually explicit conduct, Pierson's offense
level was increased by a further two levels. Finally, because Pierson is a repeat and
dangerous sex offender against minors under § 4B1.5, his offense level was increased
one additional level to 37 and his criminal history category was increased from I to
V. With a total offense level of 37 and a criminal history category of V, Pierson's
guideline sentencing range was 324 to 405 months.
The mandatory minimum sentence for attempted production of child
pornography under 18 U.S.C. § 2251(a) is fifteen years, but an individual with a prior
qualifying conviction is subject to a mandatory minimum sentence of twenty five
years or 300 months under 18 U.S.C. § 2251(e). A conviction under 18 U.S.C. §
2422(b) for attempting to induce a child to engage in criminal sexual activities carries
a mandatory minimum sentence of ten years or 120 months. The government did not
object to a below guideline sentence. The district court sentenced Pierson to 300
months or twenty five years on Count I and ten years on Count II, to be served
concurrently.
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On appeal, Pierson challenges the sufficiency of the evidence, the admission at
trial of his prior conviction for indecent contact with a child, and his eligibility for
both the § 4B1.5 enhancement and the statutory mandatory minimum under 18 U.S.C.
§ 2251(e).
II.
Pierson first contends that the record contains insufficient evidence to support
his convictions, arguing that no reasonable jury could find beyond a reasonable doubt
that the elements of Counts I and II were satisfied. In determining whether sufficient
evidence exists to support a conviction, we must decide "whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt." Jackson
v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in the original). Evidence supporting
conviction "need not preclude every outcome other than guilty." United States v.
Ramirez, 362 F.3d 521, 524 (8th Cir. 2004). Moreover, "[t]his standard is a strict one,
and a jury verdict should not be overturned lightly." United States v. Sykes, 977 F.2d
1242, 1247 (8th Cir. 1992).
In order to convict a defendant of the crime of attempted production of child
pornography, in violation of 18 U.S.C. § 2251(a), as charged in Count I, the
government must prove the following elements beyond a reasonable doubt: (1) that
the defendant believed during the time period alleged in the indictment that the child
named in the indictment was under the age of eighteen; (2) that the defendant
attempted to use, persuade, induce, entice, or coerce that child to engage in sexually
explicit conduct as defined in 18 U.S.C. § 2256(2); (3) that the defendant voluntarily
and intentionally engaged in this behavior for the purpose of producing a visual
depiction of such conduct; and (4) that the materials used to attempt to produce the
visual depiction were mailed, shipped, or transported, including by computer, in
interstate or foreign commerce.
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Since Pierson does not dispute element four, the question is only whether a
reasonable jury could find that the government proved elements one through three
beyond a reasonable doubt. In respect to element two, there was evidence that Pierson
attempted on numerous occasions to persuade the undercover profile to engage in
sexually explicit conduct, as defined in 18 U.S.C. § 2256(2), for transmission to him
via a webcam. The evidence showed that Pierson requested naked photos of the
undercover profile, asked if she would perform sexually explicit acts in front of a
webcam and transmit the images to him over the internet, requested her address so that
he could send money to purchase the webcam, and offered to pay her if she would
convince her twelve and thirteen year old friends to pose nude in front of the webcam.
The government therefore carried its burden on element two. Element three requires
little comment. Since there was no evidence that Pierson was coerced into requesting
these sexually explicit depictions or was actually seeking something altogether
different, the government met its burden on the third element.
We also conclude that a reasonable jury could have found that the government
proved beyond a reasonable doubt that Pierson believed that the undercover profile
was a minor. Pierson relies primarily on the argument that his personal internet
research and thorough questioning of the undercover profile show that no rational trier
of fact could have found beyond a reasonable doubt that he believed he was
communicating with a minor. There was evidence that after Pierson requested a
telephone number from the undercover profile, he discovered that the number had at
one time been registered to a forty year old woman who was coincidentally named
Brenda. Pierson repeatedly quizzed the undercover profile about her biography in an
effort to determine whether she was actually fourteen. The jury could find from the
evidence at trial that Pierson's attempts to determine the age of the undercover profile
were designed not only to confirm that he was not communicating with an undercover
officer, but also to confirm that he was communicating with a minor.
Moreover, there was credible evidence that Pierson believed that the undercover
profile was a minor female. During one online chat with the undercover profile
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Pierson stated that he believed that she was a fourteen year old female. During
another online chat Pierson stated "I know your [sic] 13 and in 8th grade right? I do
not care if you are I still like you okay? Please just tell me the truth from now on
please. I am going to like you and help you model for real. I am not going to get you
in any trouble just please do not get me in any trouble okay?" Pierson also told the
Postal Inspector after his arrest that during "the last two weeks I was starting to think
she was fourteen." Pierson was also wary of meeting with the undercover profile
before she transmitted live images of herself to him via webcam. The following
exchange is illustrative:
Undercover Profile: r u ever gonna come c me since u aint sick no more?
Pierson: YES after I see you nude on the cam.
Undercover Profile: k.
Pierson: Then I know your safe okay?
Undercover Profile: huh?
Pierson: If I see you nude on the cam I will know yur real.
These facts, when viewed in the light most favorable to the prosecution, would allow
a rational trier of fact to find beyond a reasonable doubt that the defendant committed
the essential elements of the offense.
In order to convict a defendant of the crime of attempting to induce a child to
engage in criminal sexual activities, in violation of 18 U.S.C. § 2422(b), as charged
in Count II, the government must prove the following elements beyond a reasonable
doubt: (1) that the defendant used a facility of interstate commerce, such as the
internet or the telephone system; (2) that the defendant knowingly used the facility of
interstate commerce with the intent to persuade or entice a person to engage in illegal
sexual activity; and (3) that the defendant believed that the person he sought to
persuade or entice was under the age of eighteen. The government need not prove that
the defendant intended to participate in a physical sexual act. It is sufficient for the
government to prove that the defendant intended to persuade or entice a minor to
engage in illegal sexual activity. Factual impossibility is not a defense to the charge.
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We conclude that the government has carried its burden in Count II. Pierson
does not dispute element one. The same evidence that was relevant on Count I for
elements two and three of the crime of attempted production of child pornography is
relevant to the second element of attempting to induce a child to engage in criminal
sexual activities, and the evidence applying to the first element of the crime charged
in Count I is relevant to the third element of the crime of attempting to induce a child
to engage in criminal sexual activities.
III.
Pierson next contends that the district court abused its discretion in permitting
the government to cross examine him at trial about his prior conviction for indecent
contact with a child. A district court's evidentiary rulings are reviewed for abuse of
discretion. United States v. Cook, 454 F.3d 938, 940 (8th Cir. 2006).
The district court admitted the evidence under Federal Rule of Evidence 404(b).
Under Rule 404(b), evidence of other crimes may not be offered to prove criminal
propensity but it is admissible to prove motive, intent, preparation, plan, knowledge,
and absence of mistake or accident. United States v. Johnson, 439 F.3d 947, 952 (8th
Cir. 2006). "[W]e construe Rule 404(b) as a rule of inclusion and have frequently
upheld the admission of prior ... convictions in cases where the defendant denied
committing the charged ... offense." Cook, 454 F.3d at 941. Rule 404(b) is of course
subject to the balancing requirement found in Rule 403 which requires the court to
balance the probative value of evidence with its prejudice. Id. Thus, although "all
Rule 404(b) evidence is inherently prejudicial, the test [for exclusion] under Rule 403
is whether its probative value is substantially outweighed by the danger of unfair
prejudice." Id. (emphasis in the original). Moreover, even unfairly prejudicial
evidence is generally admissible if the person against whom the prejudicial evidence
was offered opened the door to its admission by offering related favorable evidence.
United States v. Senffner, 280 F.3d 755, 763 (7th Cir. 2002).
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Prior to trial Pierson moved in limine to exclude his prior conviction for
indecent contact with a child pursuant to Rules 403 and 609. The government
informed the district court that it did not intend to utilize evidence of the prior
conviction in its case in chief, but reserved the right to revisit the issue if Pierson
testified. The district court granted the motion with respect to the government's case
in chief, but indicated that it would reconsider the issue if Pierson testified.
At the close of the government's case, the district court revisited the issue after
confirming that Pierson intended to testify. Relying on Rule 404(b), the government
argued that the prior conviction, despite the fact that it was twenty years old, was
relevant based on the similarity between the conviction and the charges in the current
indictment. In determining the probative value of prior crimes, courts consider the
similarity between the charged and uncharged acts and the remoteness of the other act
in terms of time. Johnson, 439 F.3d at 952. The government also argued that despite
the risk of unfair prejudice, the evidence of the prior conviction was relevant to show
intent, lack of mistake, plan, and preparation. Although the district court considered
that the prior conviction "would be extremely prejudicial," it concluded that it might
become relevant depending on the nature of Pierson's testimony. During direct,
Pierson testified in the following manner:
Q. Are you denying that [discussing having sex with a fourteen year old
girl] excites you?
A. No.
Q. And after that you still tried to – at least on the internet did you still
try to set up meetings with her?
A. We tried to set up two.
Q. And did that ever occur?
A. No.
Q. Why didn't that occur?
A. I had no interest in meeting her. And plus I knew it wasn't a fourteen
year old, and it was just on the computer.
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The government contends that this testimony opened the door for the admission of his
prior conviction and that Pierson opened it further through the following exchange on
his cross examination:
Q. So you wouldn't want to have any sexual contact with young girls?
A. In person, no, sir.
Q. And you're sure about that?
A. Yes, sir.
Q. And that's never sexually – you've never been sexually attracted to
physically have contact –
A. Yes, I have been; but that doesn't mean – in my heart I don't believe
I want to.
Q. That means you wouldn't ever act on it; correct?
A. That's correct.
After this exchange, the trial court ruled that his prior conviction for indecent
contact with a child was admissible. Pierson then answered in the affirmative when
asked if he had previously been convicted of indecent contact with a child. At the
close of evidence the district court made a record to show that Pierson's denials had
accentuated the relevancy of his prior conviction for purposes of the Rule 403
balancing test.
We conclude that Pierson's testimony on direct and cross opened the door for
admission of his prior conviction and made it relevant. As the Seventh Circuit has
explained, "a party cannot be permitted on the one hand to introduce evidence that
appears favorable to his argument and then complain, after the circumstances are fully
developed, because the evidence becomes detrimental to his cause." Senffner, 280
F.3d at 763. Here, Pierson denied on both direct and cross examination that he would
actually carry out his fantasy of engaging in sexual relations with a minor. This self
serving testimony opened the door to the admission of his prior conviction for
indecent contact with a child.
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A trial court has significant discretion in conducting the Rule 403 balancing
test. United States v. Ruiz, 412 F.3d 871, 881 (8th Cir. 2005). Reversal is appropriate
only if the trial court failed to engage in the required balancing process or when it is
impossible to determine from the record whether it did or not. 2 Jack B. Weinstein
& Margaret A. Berger, Weinstein's Federal Evidence § 403.02[1][b] (2d ed. 2008).
It is sufficient if we can discern from the record that the trial court performed the
requisite balancing. Id. Here, there is no doubt that the district court performed the
appropriate 403 balancing test when it admitted the 404(b) evidence. We conclude
that the district court did not abuse its discretion by admitting evidence of Pierson's
prior conviction.
IV.
Pierson finally contends that the district court erred in applying a mandatory
minimum sentence under 18 U.S.C. § 2251(e) for offenders with a qualifying prior
conviction under state law and finding him eligible for a § 4B1.5 guideline
enhancement as a repeat and dangerous offender. We review de novo a district court's
application of an enhancement based upon a prior conviction. United States v.
Stallings, 301 F.3d 919, 920 (8th Cir. 2002).
A 25 year mandatory minimum sentence applies if a defendant has violated 18
U.S.C. § 2251(a) and has a prior conviction under state law that qualifies under 18
U.S.C. § 2244(a)(3) as "abusive sexual contact" involving a minor. The § 4B1.5
guideline enhancement for repeat and dangerous offenders applies if the instant
offense is a qualifying sex crime committed after being convicted of a certain type of
sex offense as defined by federal law. One such predicate offense is abusive sexual
contact. Under federal law abusive sexual contact includes in relevant part the
"intentional touching, either directly or through the clothing, of the genitalia, anus,
groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate,
harass, degrade, or arouse or gratify the sexual desire of any person." 18 U.S.C. §
2246(3).
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In 1987 Pierson pled guilty to and was convicted of indecent contact with a
child in violation of Iowa Code § 709.12. The Iowa statute provides in relevant part
that:
A person eighteen years of age or older is upon conviction guilty of an
aggravated misdemeanor if the person commits any of the following acts
with a child ... for the purpose of arousing or satisfying the sexual desires
of either of them:
1. Fondle or touch the ... breast of the child.
2. Touch the clothing covering the immediate area of the ... breast
of the child.
3. Solicit or permit a child to fondle or touch the inner thigh,
groin, buttock, anus, or breast of the person.
4. Solicit a child to engage in any act prohibited under section
709.8....
To determine whether a prior offense qualifies as a predicate offense for the
purpose of a statutory mandatory minimum or a sentencing enhancement, federal
courts employ a "formal categorical approach" which requires that the sentencing
court "look only to the fact of conviction and the statutory definition of the prior
offense." United States v. Spudich, 510 F.3d 834, 837 (8th Cir. 2008) (quoting
Shepard v. United States, 544 U.S. 13, 17 (2005)). However, where as here, the prior
offense was committed in a separate jurisdiction in which the offense is defined more
broadly than the "generic offense" enumerated in the current prosecution, federal
courts employ a "modified categorical approach." Spudich, 510 F.3d at 837. With
regard to guilty pleas under this analysis, the Supreme Court has held that:
[I]nquiry ... to determine whether a plea of guilty ... defined by a
nongeneric statute necessarily admitted elements of the generic offense
is limited to the terms of the charging document, the terms of a plea
agreement or transcript of colloquy between judge and defendant in
which the factual basis for the plea was confirmed by the defendant, or
to some comparable judicial record of this information. Shepard, 544
U.S. at 26.
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Section 709.12 of the Iowa Code is defined more broadly than the generic
offense of abusive sexual contact. A conviction under subsections 1 or 2 of § 709.12
would qualify as a prior conviction for abusive sexual contact subjecting Pierson to
a § 2251(e) 25 year mandatory minimum sentence and a § 4B1.5 enhancement. A
conviction under subsections 3 or 4 would not, however. In determining whether the
mandatory minimum and sentencing enhancement should apply, we must confine our
review to the terms of the charging document, the terms of a plea agreement, a
colloquy between the judge and the defendant, or to a comparable record which
indicates that the defendant admitted elements of the generic offense. Spudich, 510
F.3d at 837.
There is no plea agreement or transcribed colloquy between the judge and the
defendant in the record. Instead, the government relied at sentencing upon two
exhibits. The first is the trial information (part of which includes a complaint and
judgment entry). The second is the final disposition report (part of which includes
witness summaries). The trial information qualifies as a charging document under
Shepard and Spudich. While the final disposition report may qualify as a comparable
judicial record under Shepard and Spudich, we need not decide that issue since the
trial information is sufficient for our inquiry.
The trial information indicates that Pierson was accused of indecent contact
with a child in violation of § 709.12, based upon the allegation that the defendant
"fondle[d] and/or touch[ed] the breast of a child for the purpose of arousing or
satisfying his sexual desires." Because this charging document narrowed an over
inclusive Iowa statute, Shepard did not require the government to produce further
support. The charging document is sufficient evidence to support a finding that
Pierson was convicted of the generic offense. See United States v. Vasquez-Garcia,
449 F.3d 870, 873 (8th Cir. 2006). We conclude that Pierson's prior conviction is a
qualifying predicate offense for the purpose of applying both the § 4B1.5
enhancement for repeat and dangerous offenders and the mandatory minimum
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sentence required under 18 U.S.C. § 2251(e) for offenders with a qualifying prior
conviction under state law.
V.
Accordingly, we affirm Pierson's convictions and sentence.
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