United States v. Roxanne Merrell
2016 U.S. App. LEXIS 20649
| 8th Cir. | 2016Background
- In 2010 sexually explicit photos of a prepubescent girl (Minor A) showing an adult woman's hands were created; they were later recovered from Travis Guenthner's devices when DHS investigated him in 2013.
- Guenthner pled guilty and told investigators Merrell had sent and produced the images at his request.
- Law enforcement obtained warrants including permission to photograph "body views and photography of [Merrell's] hands." During execution officers photographed 47 images of Merrell's hands and recorded a custodial interview in which Merrell admitted taking the photos and that her hands appeared in them.
- Merrell was indicted and convicted on two counts of producing child pornography, 18 U.S.C. § 2251(a),(e). The district court sentenced her to concurrent 240-month terms (below the Guidelines range).
- On appeal Merrell challenged: (1) suppression denial for the hand photographs; (2) admission of an FBI agent’s opinion linking the hands to Merrell; (3) exclusion of a videotaped interview of Minor A; and (4) jury instructions and sentencing procedure/reasonableness. The Eighth Circuit affirmed.
Issues
| Issue | Merrell's Argument | Government's Argument | Held |
|---|---|---|---|
| Suppression of 47 hand photographs | Photos exceeded warrant scope and were unreasonable/identification-like procedure violative of Fourth/14th Amendments | Warrant expressly authorized body views/photography of hands; manner of execution reasonable and within warrant | Affirmed: photos within warrant scope and execution reasonable; not an identification procedure |
| Admission of expert testimony (Agent Cole) | Agent’s opinion about the hands should have been excluded under Rule 702/Daubert | Even if erroneous, admission was harmless given overwhelming evidence (taped confession, phone records) | Affirmed: any error harmless — confession and corroborating evidence undercut influence of expert testimony |
| Exclusion of videotaped interview of Minor A | Videotape admissible under hearsay exceptions (present sense impression or then-existing mental/emotional condition) and necessary for defense | District court permissibly excluded under Rule 403 as more prejudicial/confusing than probative; Minor A could have been called | Affirmed: no abuse of discretion in excluding the tape under Rule 403 |
| Sentencing procedure & substantive reasonableness | District court failed to adequately consider §3553(a) or explain sentence; sentence substantively unreasonable compared to others | Court considered arguments, stated it applied §3553(a), and imposed a 120-month downward variance — within discretion | Affirmed: no plain error in procedure; sentence not substantively unreasonable given downward variance |
Key Cases Cited
- Dalia v. United States, 441 U.S. 238 (1979) (warrants need not specify precise execution details)
- Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) (trial courts as gatekeepers on expert reliability)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (Daubert gatekeeping applies to non-scientific expert testimony)
- United States v. Williams, 477 F.3d 974 (8th Cir. 2007) (availability of less intrusive means does not automatically render search unreasonable)
- United States v. Iron Hawk, 612 F.3d 1031 (8th Cir. 2010) (improperly admitted testimony reversible only if it substantially influenced the verdict)
- United States v. Feemster, 572 F.3d 455 (8th Cir. 2009) (appellate review ensures district court considered §3553(a) factors)
- United States v. Maxwell, 778 F.3d 719 (8th Cir. 2015) (downward variance makes further downward departure unlikely to be abuse)
- United States v. Chavarria-Ortiz, 828 F.3d 668 (8th Cir. 2016) (plain-error review for unobjected-to sentencing issues)
- United States v. Aleman, 548 F.3d 1158 (8th Cir. 2008) (jury instructions reviewed for abuse of discretion; must fairly submit issues)
- United States v. Castellanos, 608 F.3d 1010 (8th Cir. 2010) (standards for reviewing suppression rulings)