United States v. Jerry Golliher
820 F.3d 979
8th Cir.2016Background
- Law enforcement posted an online ad offering underage girls; Golliher responded by e-mail and arranged a meeting, believing one girl (“Bobbi”) was 13 or 14. At the meeting he entered an undercover officer’s car, offered to pay $150 for half an hour, and was arrested. He was charged with attempted commercial sex trafficking of a minor under 18 U.S.C. §§ 1591 and 1594(a).
- Before trial the government excluded e-mails Golliher claimed were exculpatory (showing he rebuffed offers after learning a girl was underage); the court excluded them as hearsay but noted possible admissibility as prior consistent statements if attacked. Golliher did not seek their admission at trial or testify to their substance.
- During closing, the prosecutor discussed entrapment and attempt, at times using the phrases “nobody forced him to do it,” stated the government need only prove a substantial step (not consummation), and used first-person pronouns (we/I) urging conviction.
- The jury later asked whether Bobbi was 13 or 14; the court replied that it could not comment on evidence and told jurors to rely on their recollection. The jury returned a guilty verdict.
- On appeal Golliher raised: ineffective assistance (failure to admit Yahoo business-record e-mails), exclusion of the e-mails under Rule 807 (residual hearsay exception), plain error for denying transcript review after the jury question, and prosecutorial misconduct (misstating entrapment, removing intent, and vouching).
Issues
| Issue | Plaintiff's Argument (Golliher) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Ineffective assistance for not using Rule 803(6) business-records to admit Yahoo e-mails | Counsel should have obtained Yahoo records custodian and admitted e-mails showing he refused underage sex | Not addressed on merits; appellate review of ineffectiveness on direct appeal is limited and record not exceptional | Court declined to consider on direct appeal; claim not addressed (must raise in habeas unless exceptional) |
| Exclusion of e-mails under Rule 807 (residual hearsay) | E-mails met Rule 807 (trustworthiness, materiality, more probative than other evidence) and should have been admitted | Appellant failed to preserve or present substance of e-mails in record; no offer of proof, so cannot evaluate Rule 807 factors | Affirmed exclusion; appellant failed to provide substance or record citations to evaluate admissibility |
| Court’s response to jury question (refusing to provide transcript) | Failure to offer transcript on significance of victim’s age (13 v. 14) was plain error affecting substantial rights | Supplemental instruction to rely on jurors’ recollection was proper; no showing of unfairness or transcript evidence supporting error | No plain error; instruction was adequate and appellant did not show prejudice |
| Prosecutorial misconduct in closing (entrapment law, intent, vouching) | Prosecutor misstated entrapment (equating persuasion with force), minimized intent requirement, and vouched using “we/I” | Any misstatements were harmless because the court instructed correctly, defense counsel affirmed instructions, and evidence showed lack of entrapment; first-person usage was summary of government case | Misstatement of entrapment law was error but harmless given correct instructions and overwhelming evidence; intent and vouching claims rejected as non-prejudicial |
Key Cases Cited
- United States v. Sanchez-Gonzalez, 643 F.3d 626 (8th Cir. 2011) (direct-appeal ineffective-assistance claims are reviewed only in exceptional cases)
- United States v. Soriano-Hernandez, 310 F.3d 1099 (8th Cir. 2002) (same principle on limited direct-review of ineffective-assistance claims)
- United States v. Hansen, 791 F.3d 863 (8th Cir. 2015) (plain-error standard for unobjected-to trial errors)
- Kellogg v. Skon, 176 F.3d 447 (8th Cir. 1999) (prosecutor misstatements may erode presumption of innocence by lowering government’s burden)
- United States v. Bentley, 561 F.3d 803 (8th Cir. 2009) (use of first-person by prosecutor is improper only when it implies special knowledge or personal assurance of truth)
- Bassler v. United States, 651 F.2d 600 (8th Cir. 1981) (defendant entitled to jury reading of requested testimony only if failure creates unfairness)
- Cody v. Harris, 409 F.3d 853 (7th Cir. 2005) (appellate court may refuse to evaluate Rule 807 challenge when appellant fails to provide substance of excluded evidence)