U.S. v. Parker

• Decision Date: 15 May 2001
• Docket Number: CROSS-APPELLANT,Nos. 00-3391,CROSS-APPELLEE,00-3396 and 01-1010,s. 00-3391
• Citation: 267 F.3d 839
• Parties: (8th Cir. 2001) UNITED STATES OF AMERICA,/APPELLEE, v. LONNIE JOSEPH PARKER, APPELLANT/ Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 839

267 F.3d 839 (8th Cir. 2001)

UNITED STATES OF AMERICA, CROSS-APPELLANT/APPELLEE, v. LONNIE JOSEPH PARKER, APPELLANT/CROSS-APPELLEE.

Nos. 00-3391, 00-3396 and 01-1010

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: May 15, 2001

Filed: October 9, 2001

Appeal from the United States District Court for the Eastern District of Arkansas. [Copyrighted Material Omitted] Before Wollman, Chief Judge, Hansen, Circuit Judge, and Schreier,¹ District Judge.

Hansen, Circuit Judge.

Lonnie Joseph Parker was convicted of possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) (1994 & Supp. IV 1998), and was sentenced to 37 months imprisonment. Parker filed a motion for new trial five days before he was scheduled to report to prison. Parker moved for a new trial on the basis of newly discovered evidence and an allegation that the government had failed to disclose allegedly exculpatory documents relating to Parker's participation in a police undercover operation in Minnesota. The district court denied Parker's motion, concluding that the documents were neither material nor exculpatory, and Parker failed to establish that the new evidence would result in an acquittal. Parker appeals both his conviction and the denial of his motion for a new trial. The government crossappeals, arguing that the district court erred by refusing to enhance Parker's sentence based upon the sadistic nature of the pictures. See United States Sentencing Commission, Guidelines Manual, § 2G2.2(b)(3) (2000). We affirm the appeal but reverse on the cross-appeal.

I.

In 1997, Parker relocated from Minnesota to Little Rock, Arkansas, to begin his medical residency at the University of Arkansas. Soon after his move, United States Customs officials began investigating Parker as a recipient of images containing child pornography. Customs officials were alerted to Parker's involvement with child pornography through their investigation of an individual named Freddie Gravely who resided in Michigan. Gravely had sent six pornographic images to an America Online subscriber who was using the screen name "FUNWUN777." The subscriber was Parker.

Parker agreed to cooperate with Customs agents, and during a subsequent interview, Parker informed the agents that his daughter had received the images while visiting an Internet chat room, and that he had reported the incident to the FBI and the National Center for Missing and Exploited Children (NCMEC). The Customs agents were unable to substantiate Parker's assertion that he had contacted either agency. Parker also told the agents that he was told to download and print out the images and send them to both agencies. Parker did not send copies of the images to either agency. Parker offered to provide Customs agents with the name of the FBI agent who instructed him to download the pornographic images, but Parker never followed through with his offer.

Parker invited the Customs agents to his home and executed a consent form, authorizing their search of his home for child pornography. At the agents' request, Parker copied the pornographic images stored on his computer's hard drive onto computer diskettes. The extent of Parker's collection was voluminous. Agents seized the disks and Parker's computer. The next day, Parker requested to meet again with Customs agents. Parker explained to the agents that contrary to what he had reported earlier, he--and not his daughter--had received the child pornography. He stated that he had printed out the images that he received and sent them to the FBI and the NCMEC. Parker stated that he voluntarily continued to receive pornographic images in an attempt to compile a list of suspect pornographers to assist law enforcement officials. When asked by Customs agents for his list of suspects, however, he was unable to provide it. Parker also informed the Customs agents of a previous episode that occurred while he was a fourth-year medical student at the Mayo Clinic, in Rochester, Minnesota, when he received a message from an individual in an Internet chat room. This individual offered to allow Parker to have sex with the man's adolescent daughter, as well as providing pictures of the interlude in exchange for a fee. Parker was told to meet the girl at a Minneapolis-area motel. Parker reported this solicitation to the FBI. FBI agents investigated Parker's complaint and initiated a surveillance operation at the motel; however, neither the individual nor his daughter ever materialized at the motel.

Parker was charged in a five count indictment: three counts of receiving child pornography, one count of possessing child pornography, and one count of criminal forfeiture. Parker filed a motion indicating that he intended to assert a public authority defense because, he contended, he was assisting law enforcement officials in their attempt to identify and apprehend persons sending him pornographic material to his Internet account. At trial, however, Parker presented no evidence on his own behalf. Thus at the close of the trial, the district court refused to instruct the jury on Parker's reliance upon public authority, concluding the trial record contained insufficient evidence to warrant such an instruction. The jury found Parker guilty of possessing child pornography, and in light of the conviction, Parker conceded the criminal forfeiture. At sentencing, the government sought a four-level enhancement under the Sentencing Guidelines § 2G2.2(b)(3) based upon the sadistic nature of the pictures Parker possessed, which the district court denied. The district court sentenced Parker to 37 months imprisonment.

In support of a subsequent motion for new trial, Parker raised two arguments: (1) that the government failed to turn over exculpatory documents which were linked to Parker's involvement with the FBI in Minnesota, in violation of Brady v. Maryland, 373 U.S. 83 (1963); and (2) that newly discovered evidence warranted a new trial. The district court denied the motion. The court concluded that the evidence was not exculpatory, presentation of the evidence would not have resulted in an acquittal, and the evidence did not satisfy the requirement of Federal Rule of Criminal Procedure 33. Parker appeals both his conviction and the district court's denial of his motion for a new trial. The government crossappeals the district court's refusal to impose a four-level sentence enhancement under USSG § 2G2.2(b)(3).

II.

A. Public Authority Defense

Parker first contends that the district court erred by refusing to instruct the jury on his defense that he acted under public authority when downloading child pornography to his home computer. We disagree. Whether there is sufficient evidence to submit an affirmative defense instruction to a jury is a question of law and reviewed de novo. United States v. Jankowski, 194 F.3d 878, 882 (8th Cir. 1999). The public authority defense requires a defendant to show that he was engaged by a government official to participate in a covert activity. United States v. Achter, 52 F.3d 753, 755 (8th Cir. 1995). However,

[t]he defendant does not have to testify or even offer any evidence; the basis for the defendant's theory may derive from the testimony of government witnesses on direct or cross-examination. Finally, the evidence to support a theory of defense need not be overwhelming; a defendant is entitled to an instruction on a theory of defense even though the evidentiary basis for that theory is weak, inconsistent, or of doubtful credibility.

United States v. Scout, 112 F.3d 955, 960 (8th Cir. 1997) (internal quotations and alterations omitted). Parker contends that the evidence that he alerted officials in Minnesota to an individual who was offering the person's teenage daughter for sex was sufficient evidence to warrant a public authority instruction regarding Parker's charged activities in Arkansas. We fail to see any connection between his alleged assistance in Minnesota and his later activities in Arkansas. Parker asserts that the evidence demonstrated that an FBI agent had instructed him to download the pornographic images and deliver them to the FBI office in Little Rock, Arkansas. Even construing the evidence in the light most favorable to Parker, the evidence at trial directly contradicted Parker's assertion. Law enforcement officials stated that Parker was directed only to deliver the images he had already obtained and had stored on his computer's hard drive to the FBI--a direction he subsequently ignored. There was no evidence presented that Parker acted on the request or advice of a duly authorized law enforcement official concerning his continued possession and accumulation of child pornography in Arkansas. The evidence showed Parker was acting on his own; the FBI officers in Arkansas never authorized Parker to download or possess child pornography. In fact, the trial testimony revealed that a friend of Parker's, who is also a law enforcement officer, warned Parker that possession of child pornography is illegal. We conclude the district court was correct in declining to instruct the jury on the defense of public authority.

B. Entrapment by Estoppel

Parker also argues that he was entitled to "exoneration" and that the district court erred by failing to direct a verdict in his favor based upon the application of entrapment by estoppel. Entrapment by estoppel arises when a government official tells a defendant that certain conduct is legal, and the defendant commits what otherwise would be a crime in reasonable reliance on the official representation. United States v. Benning, 248 F.3d 772, 775 (8th Cir.), cert. denied, ___U.S.___, 122 S.Ct. 276, ___L.Ed.2d___(2001). Parker failed to raise this issue before the district court, and as a result, we review for plain error. We will reverse under plain error review only if the error prejudices the party's substantial rights and would result in a miscarriage of justice if...