United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-1718
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United States of America, *
*
Appellee, *
* Appeal from the United
v. * States District Court for the
* Northern District of Iowa.
Michael Mayer, *
*
Appellant. *
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Submitted: October 18, 2011
Filed: March 23, 2012
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Before MELLOY, BEAM, and GRUENDER, Circuit Judges.
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BEAM, Circuit Judge.
Michael Mayer appeals the district court's1 denial of his motion for judgment
of acquittal and his motion for new trial following a jury trial and guilty verdict for
enticing a minor under the age of 18 to engage in sexually explicit conduct for the
purposes of producing visual depictions of the same, in violation of 18 U.S.C. §
2251(a) and (e). We affirm.
1
The Honorable Mark W. Bennett, United States District Judge for the
Northern District of Iowa.
I. BACKGROUND
Mayer first virtually encountered and befriended fourteen-year-old P.M., the
minor involved in this case, while playing an interactive internet game in 2007 or
2008. In May 2008, the two began exchanging text messages, videos and phone calls
on their cell phones. Mayer, an Iowa resident who turned thirty-eight during the
course of his exchanges with P.M., knew that P.M. was fourteen years old and lived
in California. Between May and August 2008, in addition to chatting with P.M. while
playing the interactive game, Mayer used his cell phone to send P.M. approximately
3,800 text messages (an average of nearly thirty each day) and sexually explicit
videos and pictures of himself. Likewise during that time, P.M. sent Mayer
approximately 3,900 text messages, which also included sexually explicit pictures and
videos of herself. The two visited on the phone about 130 times during this period
as well; about seventy calls originated from Mayer to P.M., and about sixty calls were
made by P.M. to Mayer.
The two never met personally but engaged in sexually explicit communications
with each other throughout these months. P.M. testified that as their communications
developed, they became more personal, more sexual, and that Mayer asked her to
send sexually explicit pictures and videos of herself to him, sometimes with specific
requests regarding which body part to focus on. Both Mayer and P.M. testified that
they would tell each other, "I love you," regularly. Upon repeated questioning at trial,
P.M. also testified that she, too, engaged in the illicit conversations and that when she
sent texts, or photos or videos of herself, nude or engaging in sexual acts, she did so
"of her own free will."
A grand jury returned a three-count indictment charging Mayer with (1) sexual
exploitation of a child, (2) receipt of child pornography, and (3) possession of child
pornography. Mayer pled guilty to the receipt and possession charges but he
maintained that he never encouraged or enticed P.M. to send photos, and thus a jury
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trial was held on count 1. Count 1 specifically alleged that Mayer "used, persuaded,
induced, and enticed, and attempted to use, persuade, induce and entice, a minor
under the age of 18 to engage in sexually explicit conduct for the purpose of
producing visual depictions of such conduct." See 18 U.S.C. § 2251(a). At the close
of the government's case and again at the close of all the evidence, Mayer moved for
judgment of acquittal and, alternatively, by way of a later motion, a new trial. Mayer
claimed there was insufficient evidence that he persuaded, induced, or enticed P.M.
to engage in the sexually explicit conduct for the purpose of creating a depiction of
sexually explicit conduct; and there was a substantial likelihood that a miscarriage of
justice occurred. The district court denied the motions and Mayer appeals.
II. DISCUSSION
"[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(a). We review the sufficiency of the evidence de novo, viewing
the evidence in the light most favorable to the verdict, resolving conflicts in the
government's favor, and accepting all reasonable inferences that support the verdict.
United States v. Herbst, 666 F.3d 504, 510 (8th Cir. 2012). "Reversal is warranted
only if no reasonable jury could have found guilt beyond a reasonable doubt." Id.
We further note that "in reviewing a defendant's challenge to the sufficiency of the
evidence, '[w]itness testimony . . . does not need to be corroborated.'" United States
v. Perez, 663 F.3d 387, 391 (8th Cir. 2011) (alterations in original) (quoting United
States v. Jefferson, 652 F.3d 927, 930 (8th Cir. 2011), cert. denied, 132 S. Ct. 1068
(2012)). Mayer also challenges the denial of his motion for a new trial on sufficiency
grounds. We review this denial for abuse of discretion. United States v. Aguilera,
625 F.3d 482, 486 (8th Cir. 2010). "The decision to grant or deny a motion for a new
trial based upon the weight of the evidence is within the sound discretion of the trial
court," but "[u]nless the district court ultimately determines that a miscarriage of
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justice will occur, the jury's verdict must be allowed to stand." United States v.
Campos, 306 F.3d 577, 579 (8th Cir. 2002).
To convict Mayer under 18 U.S.C. § 2251(a) and (e), the government must
have established that (1) at a time when P.M. was under eighteen years of age; (2)
Mayer used, persuaded, or induced P.M. to engage in sexually explicit conduct; (3)
Mayer voluntarily and intentionally did this for the purpose of producing at least one
visual depiction of such conduct; and (4) at least one of the depictions was produced
using a camera that had been shipped and transported in interstate or foreign
commerce. United States v. Coutentos, 651 F.3d 809, 823 (8th Cir. 2011). It is the
second element we address today and we conclude there is sufficient evidence to
support the jury's verdict.
Mayer claims that P.M. initiated the sexual nature of the discussions and was
the first to send a sexually explicit photo of herself; that there was no inducement on
his part for her to do so. He maintains, in direct contrast to P.M.'s testimony, that
each time he sent a sexually explicit photo or video of himself, he only did so at
P.M.'s request; that he never randomly did so, nor did he ever ask her or induce her
to reciprocate with photos or videos of herself. He further claims the government
never counteracted P.M.'s testimony that she took and sent the sexually explicit
photos of herself "of her own free will." Accordingly, Mayer argues that the
government wholly failed to prove beyond a reasonable doubt that there was any
connection between Mayer's alleged acts and the creation of the pictures; that it never
established that Mayer in fact induced, enticed, or influenced P.M. to engage in the
conduct in violation of the charging statute, as is required for causation under the
statute. After a careful review of the evidence presented in this case, we are not
persuaded by Mayer's arguments that no reasonable jury could have decided in favor
of the verdict.
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Contrary to Mayer's argument, P.M.'s testimony in response to repeated
questions on cross-examination that she took and sent explicit photos of herself "of
her own free will," does not affirmatively, nor necessarily, negate a finding that
Mayer induced or enticed P.M. to do so. See United States v. Starr, 533 F.3d 985,
998 (8th Cir. 2008) (holding that there was sufficient evidence for the jury to find that
the defendant enticed minors to send him photos despite the defendant's claim that the
minors acted voluntarily). It is possible for P.M. to acknowledge her voluntariness
and yet for the jury to have viewed the evidence and determined that Mayer was
guilty of violating the statute.
Mayer ignores his role in inducing P.M. to send the photos at issue. Mayer
exchanged thousands of text messages with P.M., as well as videos and phone calls,
some of which contained sexually graphic and suggestive language and graphic
photos of Mayer's genitalia and multiple videos of himself masturbating. Even
though P.M. testified that she voluntarily participated, this does not diminish Mayer's
involvement. He, too, engaged in the sexual conversations. She testified that Mayer
specifically and repeatedly requested that she send photos of her breasts, and
genitalia, or a video of her "fingering herself," and that she was reluctant to do so
initially. P.M.'s credibility was a matter for the jury to discern and is virtually
unreviewable on appeal. United States v. Rayl, 270 F.3d 709, 713 (8th Cir. 2001)
(upholding conviction for enticing a minor to engage in sexually explicit conduct to
produce a visual depiction, in violation of 18 U.S.C. § 2251(a), where the minor's
testimony was the only evidence that the pictures at issue were taken). The jury
obviously believed P.M. Given this record proof, we conclude that there was
sufficient evidence for the jury to find that Mayer used, persuaded, induced, or
enticed P.M. to send him sexually explicit pictures of herself.
Mayer cites United States v. Broxmeyer, 616 F.3d 120, 125 (2d Cir. 2010) for
the proposition that the government was required, and failed, to prove that Mayer's
alleged inducement or enticement was the "but for" cause of P.M.'s actions that form
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the basis of the charge. He argues that P.M.'s testimony that she sent the photos and
videos "of her own free will," necessarily negates any "but for" causation finding.
Stated otherwise, according to Mayer, P.M.'s testimony breaks any alleged chain of
causation originating with Mayer. We disagree. Broxmeyer reversed a conviction
under the same statute because the government failed to offer clear evidence that the
alleged acts of the defendant at issue came before the minor took the relevant photos
of herself, thus leaving the issue of causation unclear. 616 F.3d at 126. Broxmeyer
thus focused on the government's failure to establish that the pictures were taken after
a solicitation or enticement, which is obviously necessary for a conviction. Id. at
124-26. Broxmeyer does not inform the instant case. Here, as mentioned, P.M.
testified that Mayer requested photos from her, even requesting that specific body
parts be the focus of the photo, to which she would then oblige. And, Mayer sent
explicit photos of himself, perpetuating the exchange between the two. All of these
facts support the jury's ultimate conclusion that Mayer used, persuaded, induced, or
enticed P.M. to engage in sexually explicit conduct for the purpose of producing
visual depictions of such conduct.
Additionally, there is the issue of the May 2010 plea agreement admitted at
trial. In May 2010, Mayer pled guilty to count 1 of the indictment but never followed
through with the agreement, thus resulting in the trial on count 1. In that plea
agreement, however, Mayer stipulated to the factual basis for count 1, which the
government offered at trial. As relevant here, the government contends Mayer
previously stipulated that:
In or between May 2008 and August 2008, in his residence in Sibley,
Iowa, defendant used, persuaded, induced, and enticed, and attempted
to use, persuade, induce, and entice P.M., a 14-year-old female, to
engage in sexually explicit conduct for the purpose of producing visual
depictions of such conduct . . . .
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According to the government, Mayer also initialed the following facts in the
agreement, signifying their accuracy:
On more than one occasion, using his cell phone, defendant asked P.M.
to send him sexually explicit videos and images of herself. P.M. then
used her LG cell phone to take videos and images of her genitals and of
her touching her genitals with her fingers. She used her LG cell phone
to send these videos and images to defendant. P.M. sent approximately
50-100 sexually explicit images and 2-3 sexually explicit videos of
herself to defendant.
Prior to trial, Mayer resisted the admission of this failed plea agreement as
evidence against him, maintaining his innocence and claiming that because the plea
agreement was never confirmed through a formal plea colloquy, it should be
inadmissible at trial. The district court, citing Eighth Circuit precedent in support of
admission, see United States v. Quiroga, 554 F.3d 1150 (8th Cir. 2009), admitted the
plea agreement at trial and Mayer does not challenge this admission today. On
appeal, in support of his insufficiency argument, Mayer claims that the stipulated
facts are untrue, that the factual basis in the agreement was "beyond the scope of his
personal knowledge," and that to the extent there is scant evidence in this case, these
stipulated facts are not the missing link. Again, Mayer maintains that P.M.'s
testimony that she participated "of her own free will," breaks the chain of causation
between his actions and her own. He further argues that at the time he initialed the
plea agreement he did not know what P.M.'s testimony would be, although we fail to
see how knowledge of P.M.'s later testimony would alter the accuracy of a factual
statement stipulated to by Mayer. However, these arguments are meritless. First, we
have established that P.M.'s voluntariness is a nonsequitur when it comes to
establishing Mayer's guilt. And, second, to the extent Mayer challenges the
evidentiary value of the failed plea agreement in light of all admitted facts, Mayer
was free to make these arguments to the jury, as the plea agreement was just one piece
of evidence admitted at trial and available for the jury's consideration. Regardless,
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even without the admission of these stipulated facts, a reasonable jury could have
found guilt beyond a reasonable doubt.
Viewing the evidence in the light most favorable to the government, we
conclude that a reasonable jury could have concluded beyond a reasonable doubt that
Mayer used, persuaded, induced, or enticed P.M. to engage in sexually explicit
conduct for the purpose of producing visual depictions of such conduct. Hence, the
district court did not err in denying Mayer's motion for judgment of acquittal and
likewise did not abuse its discretion in refusing to grant Mayer a new trial.
III. CONCLUSION
For these reasons herein, we affirm.
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