United States v. Thompson

• Decision Date: 03 September 2021
• Docket Number: No. 20-2781,20-2781
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Jay THOMPSON, Defendant - Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

11 F.4th 925

UNITED STATES of America, Plaintiff - Appellee

v.Jay THOMPSON, Defendant - Appellant

No. 20-2781

United States Court of Appeals, Eighth Circuit.

Submitted: May 12, 2021

Filed: September 3, 2021

Counsel who presented argument on behalf of the appellant and appeared on the appellant's brief, was Christopher Aaron Holt, AFPD, of Fayetteville, AR. The following attorney(s) also appeared on the appellant's brief; Joe Alfaro, AFPD, of Fayetteville, AR.

Counsel who presented argument on behalf of the appellee was Dustin S. Roberts, AUSA, of Fort Smith, AR. The following attorney(s) appeared on the appellee's brief; Carly Marshall, AUSA, of Fort Smith, AR.

Before COLLOTON, WOLLMAN, and KOBES, Circuit Judges.

WOLLMAN, Circuit Judge.

A jury convicted Jay Thompson of attempting to entice a minor to engage in illegal sexual activity in violation of 18 U.S.C. § 2422(b). The district court¹ sentenced Thompson to the statutory mandatory minimum sentence of 120 months’ imprisonment. See 18 U.S.C. § 2422(b). Thompson argues that there was insufficient evidence presented at trial to support his conviction, that he is entitled to a new trial because of prosecutorial misconduct, and that the district court erred in denying his motion to compel. We affirm.

I. Background

During an online campaign to identify child predators in Northwest Arkansas, Benton County, Arkansas, Detective Alison Nguyen adopted the undercover persona of a thirteen-year-old girl named "Skye." She posted a personal ad on Craigslist that stated, "Looking for new friends" and "Mature for my age.. sick of drama.. looking to make new friends!"² Nguyen was part of a Homeland Security Investigations Internet Crimes Against Children task force. She was twenty-eight years old at the time of Thompson's March 2020 trial.

Thompson replied to Nguyen's ad on September 25, 2019. He was forty-three years old at trial time. He inquired over email whether Skye was "still looking," to which Nguyen responded that she was, noting, "I'm 13.. hope that's ok." Following a brief email exchange, Thompson asked Skye for a photo, and Nguyen replied, "You first." Thompson sent a self-photograph, and Nguyen, in turn, sent a self-photograph to which she had applied a filter so that she appeared to have animal ears and an animal nose. Thompson exclaimed, "You are beautiful!" In response to Nguyen's question whether he was "ok with [her] being younger," Thompson said, "Sure."

Thompson later inquired whether Nguyen partied, and Nguyen replied in the affirmative. Thompson then asked whether she enjoyed "420 friendly, skate, [or] drink." Nguyen initially feigned ignorance, but then said, "Yea I'm good with weed, and alcohol."³ Thompson also asked whether Skye was a cop, to which Nguyen replied, "What No?" Thompson thereafter requested evidence that Skye was in fact a real person. He asked her to "take a pic of [he]rself holding up 3 fingers." Nguyen suggested that they continue the conversation over text message and sent her phone number. Thompson texted Skye, and Nguyen responded with another self-photograph—this one unedited and portraying her holding up two fingers.

The two continued to correspond via text message that day and the next. They discussed meeting in person. Although Nguyen did not repeat Skye's age, she disclosed that Skye lived in an RV with her aunt. Posing as Skye, Nguyen repeatedly told Thompson that she wanted to make him happy. Thompson often introduced sexual topics, once asking Skye if she would "sit on [his] face." Skye said that she would, and both Thompson and Nguyen testified that the proposition referred to oral sex. Nguyen told Thompson that she had "given a BJ" but had "never had oral" and was "still a virgin." Thompson requested a picture of Skye masturbating, but Nguyen declined, noting that she had "had guys send them out before." Thompson persisted, asking Skye if she would video-chat "and get naked," but Nguyen again refused.

The two agreed that Thompson would visit Skye's RV while her aunt was away. Thompson suggested that they "start with oral and go from there" and "[m]aybe 69," which Nguyen testified referred to an oral sex position. Upon his arrival at the RV, Thompson was arrested by task force members and taken to the Homeland Security Investigations field office, where he was read his Miranda rights. Thompson was then interviewed by Task Force Officer Kevin Sears, who prepared a subsequent report but was involuntarily removed from the task force prior to trial. Homeland Security Investigations Special Agent Gerald Faulkner was also present for the interview. Faulkner testified at trial that the interview was not recorded because the recording device's battery power had failed.

Thompson surrendered his cell phone during the interview. Thompson testified that he did so after requesting an attorney. When reviewing the cell phone data, task force members found Thompson's emails and messages with Skye. The data review also revealed numerous responses to other Craigslist ads, but no other messages with apparent minors.

Thompson was indicted for attempted enticement of a minor to engage in any sexual activity for which a person can be charged with a criminal offense. See 18 U.S.C § 2422(b). The indictment listed as the crime for which Thompson could have been charged Arkansas Code Annotated Section 5-14-127, which prohibits a person twenty years old or older from engaging "in sexual intercourse or deviate sexual activity" with someone who is under the age of sixteen and is not the person's spouse. See Ark. Code Ann. § 5-14-127(a)(1)(A). Before trial, Thompson moved to compel production of a document explaining why Sears was removed from the task force. After reviewing the document in camera , the district court denied Thompson's motion. The government did not call Sears to testify at trial, but called Nguyen and Faulkner, among other witnesses.

The only disputed issue at trial was whether Thompson believed Skye to be a minor.⁴ Faulkner testified that, based on his recollection and his review of Sears's report, Thompson had stated in the post-arrest interview that he believed the person he was meeting in the RV was "under 16." Thompson testified that he had thought that Skye was lying to him and that she was an adult—based on her forehead wrinkles and under-eye bags, the size of her head, and the amount of makeup apparent in both of her self-photographs, as well as based on some of her comments and her understanding of drug- and sex-related adult slang. Thompson explained that when he said that he was okay with Skye being younger, he meant he was okay with Skye being younger than forty-three years old. Thompson testified that he had extensive experience with Craigslist personal ads, that posters routinely lied about everything from age to sex to occupation, and that he had believed that Skye's repeated assertions that she wanted to do what would make him happy indicated that she might be a prostitute or an undercover police officer posing as a prostitute for a sting operation. Thompson also testified that he did not tell Faulkner or Sears that he thought the person he was meeting was "under 16." The prosecutor inquired:

[Prosecutor]: Okay. So Agent Faulkner was lying when he said that?

[Thompson]: Yes.

* * *

[Prosecutor]: Is this just all a conspiracy against you? Is that what you believe that this is?"

[Thompson]: I don't know what it is, but it really feels like it. It honestly seems like a witch hunt.

Defense counsel did not object to these questions.

The government then called Faulkner to testify in rebuttal, asking the following:

[Prosecutor]: Could you tell this jury what happens if you lie?

[Faulkner]: I would potentially get fired and could also come up on criminal charges. And that's not something that I would ever do, jeopardize my career or to put a stain on my agency, and more importantly, to put my family's life in jeopardy.

Thompson's counsel did not object. The district court denied Thompson's motion for judgment of acquittal.

In closing, defense counsel argued that he "d[id]n't know" why there were certain discrepancies in the evidence. Although he did not explicitly accuse Faulkner of lying, defense counsel described as "convenient" the facts that Faulkner's testimony about Thompson's alleged confession "just happens to track a law in Arkansas" and that the interview "wasn't recorded or the batteries died." The prosecutor responded by arguing during rebuttal that for the jury to acquit, it must find that there was a conspiracy against Thompson and that Faulkner was lying. The prosecutor also argued that if the jury found that Faulkner was lying, he could lose his career, be prosecuted, and jeopardize his family. Again, defense counsel raised no objections to the rebuttal argument, following which Thompson was found guilty and sentenced as set forth above.

II. Analysis

A. Sufficiency of the Evidence

Thompson argues that the evidence was insufficient to convict him and that he was thus entitled to a judgment of acquittal. We review de novo the sufficiency of the evidence, "viewing the evidence in the light most favorable to the verdict and giving the verdict the benefit of all reasonable inferences." United States v. Free, 976 F.3d 810, 813 (8th Cir. 2020). "We will reverse a conviction ‘only if no reasonable jury could have found the defendant guilty beyond a reasonable doubt.’ " Id. at 813–14 (quoting United States v. Fool Bear, 903 F.3d 704, 708 (8th Cir. 2018) ). Jurors are "the judges of the credibility of testimony offered by witnesses," United States v. Bailey, 444 U.S. 394, 414, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980), and their credibility findings are "virtually unreviewable on appeal," United States v. Hernandez, 569 F.3d 893, 897 (8th Cir. 2009) (citation omitted). Thompson argues that the government failed to prove beyond a reasonable doubt, as it was required to do, that Thompson "believed that the person he sought to ... entice was [a...