U.S. v. Rayl

• Decision Date: 12 June 2001
• Docket Number: No. 01-1338,01-1338
• Citation: 270 F.3d 709
• Parties: (8th Cir. 2001) UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE, v. LYNN DUANE RAYL, DEFENDANT - APPELLANT. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 709

270 F.3d 709 (8th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE, v. LYNN DUANE RAYL, DEFENDANT - APPELLANT.

No. 01-1338

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: June 12, 2001

Filed: October 29, 2001

Appeal from the United States District Court for the Western District of Missouri. [Copyrighted Material Omitted] Before Loken and HALL,^* Circuit Judges, and ROSENBAUM,^** District Judge.

Loken, Circuit Judge

After the FBI investigated a complaint by fifteen-year-old D.R. that Lynn Duane Rayl had lured her to a motel room and forced her to pose for sexually explicit photographs, Rayl was convicted of four federal child pornography offenses. The district court¹ sentenced him to 405 months in prison on Count 1, and to lesser concurrent sentences on the other three counts. Rayl appeals, challenging the sufficiency of the evidence on each count. Having reviewed the trial evidence in the light most favorable to the verdict, see United States v. Jenkins, 78 F.3d 1283, 1287 (8th Cir. 1996) (standard of review), we affirm.

At trial, D.R. testified that Rayl initiated an e-mail "pen pal" relationship in November 1999, posing as fifteen-year-old Topanga, whom he described as one of nine adopted daughters living with a father who was teaching them to have sex the right way. After many on-line and e-mail conversations between Topanga and D.R., Rayl began corresponding directly with D.R. on-line, encouraging her to run away with him and have sex. When communicating directly, Rayl used the Internet name "Ninero," a Spanish word meaning fond of children.

Topanga and D.R. arranged to meet for the first time at a shopping mall on January 21, 2000. When D.R. arrived, Rayl met her and said that Topanga was ill and could not join them. Though frightened of Rayl, D.R. was afraid to call her family for a ride home because she had lied about where she was going, so she accepted Rayl's offer of a ride home. Instead, Rayl took her to a motel room, where he displayed an open pocket knife and told her to undress. Rayl also undressed and took six close-up photographs of D.R. with her hands on her hips and her genitals exposed. He also showed D.R. nude pictures of other young girls, who he said were his adopted daughters, and he touched D.R.'s breasts and vagina. Later, Rayl ordered a pizza and watched a movie. He offered D.R. purple panties and a lingerie item, which she refused. Eventually, after D.R. refused to have sex with him, Rayl drove her home. D.R. did not tell her mother or her grandparents about the incident, but when Rayl continued to send her increasingly hostile e-mail messages demanding that she run away with him, a terrified D.R. finally told her grandfather. He contacted the FBI, and this investigation ensued.

D.R.'s testimony was partially corroborated by the motel desk clerk and the pizza delivery person. The government introduced e-mails from D.R. to "Ninero" recovered from Rayl's computers, and records from D.R.'s Internet service provider revealed over one hundred e-mail messages transmitted between D.R. and "Ninero" in January alone. More significantly, in our view, a warrant search of Rayl's home and computers uncovered, and the government introduced at trial, many tangible items that D.R. had described from her encounter in the motel room -- the knife, a black doctor's bag, two Polaroid and digital cameras of the kind Rayl used to take the pictures, the clothes D.R. said Rayl was wearing, and D.R.'s diary which she discovered was missing after the encounter. The government also introduced numerous images of nude children discovered during the search of Rayl's home and computers. D.R. testified that government Exhibits 11 and 11.1 were among the pictures of nude young girls Rayl showed her in the motel room. Rayl told D.R. these were pictures of Topanga. The poses were sexually provocative.

On appeal, Rayl argues that the government's evidence was insufficient as to all four counts of conviction. We will discuss each count separately. Counts 1 and 2 were based upon Rayl's conduct with D.R. in the motel room, whereas Counts 3 and 4 were based upon the materials found in the subsequent warrant search of his home and computers.

In Count 1, Rayl was charged with enticing a minor to engage in sexually explicit conduct to produce a visual depiction using materials transported in interstate commerce, a violation of 18 U.S.C. § 2251(a). Because the government failed to introduce any nude photographs of D.R., Count 1 turned on D.R.'s testimony that Rayl enticed or coerced her into the motel room, where he took sexually explicit photos of her, and that she saw the photographs taken with the Polaroid camera before she left the motel.

Rayl argues that D.R.'s testimony lacked credibility because she admitted she lied to her grandparents before going to the mall, she did not take advantage of possible opportunities to escape before Rayl locked her in the motel room, and her trial testimony embellished Rayl's brandishing of the pocket knife when compared to her prior statement to the FBI. This issue of witness credibility is virtually unreviewable on appeal because it is "preeminently the job of the finder of fact." United States v. E.R.B., 86 F.3d 129, 130 (8th Cir. 1996). The jury obviously believed D.R. Our review of her testimony and that of the other witnesses gives us no reason to second-guess that credibility determination. Thus, the evidence was sufficient to support Rayl's conviction on Count 1.

In Count 2, Rayl was charged with use of interstate facilities to entice a minor to engage in "any sexual activity for which any person can be charged with a criminal offense." 18 U.S.C. § 2422(b). Under Missouri law, forced sexual contact and photographing nude minors for sexual stimulation are criminal offenses. See Mo. Ann. Stat. §§ 566.100, 568.060.1(2),.2. D.R. testified that Rayl used e-mail messages to entice her to meet him on January 21, and he then forced her to have sexual contact and to pose for suggestive nude photographs. Rayl again argues the evidence was insufficient because D.R.'s testimony was not credible. We decline to second-guess the jury's decision to credit D.R.'s testimony. That testimony was sufficient to establish a violation of 18 U.S.C. § 2422(b).

In Count 3, Rayl was charged with knowing interstate transportation of child pornography by means of a computer in violation of 18 U.S.C. § 2252A(a)(1). This charge was based on outgoing e-mails containing pictures...