United States v. Ted Grauer
2012 U.S. App. LEXIS 25184
8th Cir.2012Background
- Grauer was convicted after a four-day trial of attempted enticement of a minor to engage in illicit sexual activity (18 U.S.C. § 2422(b)) and possession of child pornography (18 U.S.C. § 2252(a)(4)(B)); he was acquitted on two counts of distributing child pornography and sentenced to 151 months and 120 months concurrent.
- Deputy Sheriff Jessup Schroeder, posing as a 14-year-old online, communicated with Grauer in the Yahoo Messenger “Jenny” chats; Grauer falsely claimed to be an older man and planned to meet Jenny in Clinton, Iowa.
- A warrantless search yielded a laptop with child pornography and a fleece blanket; conversations and images showed Grauer’s intent and knowledge.
- Grauer challenged the § 2G1.3(b)(2)(A) two-point enhancement for misrepresentation of identity used to entice a minor, along with prosecutorial conduct claims and sufficiency of the CP evidence.
- The district court applied the enhancement to the enticement count, declined the other enhancement, and sentenced Grauer to the bottom of the resulting advisory range; Grauer appeals on the three grounds noted.
- The Court affirms all challenged rulings after weighing the record and applicable precedent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Prosecutorial misconduct in cross and rebuttal | Grauer argues misconduct inflamed the jury and denied a fair trial. | Grauer asserts improper questions and inflammatory references were not proper cross and rebuttal. | No reversible error; questioning was probative and within discretion; rebuttal fair response to defense arguments. |
| Sufficiency of evidence for knowing possession | Grauer contends the government failed to show when/ how images came to his computer. | Grauer contends the evidence did not prove knowing possession. | Sufficient evidence of constructive possession and knowledge, given user-created folders and links to Jenny's chats. |
| § 2G1.3(b)(2)(A) misrepresentation enhancement | Grauer argues misrepresentations were not made with intent to entice a minor. | Government argues breadth of enhancement covers all identity misrepresentations with the requisite intent. | The enhancement applies; district court’s finding of intentional misrepresentation was not clearly erroneous. |
Key Cases Cited
- United States v. Pierson, 544 F.3d 933 (8th Cir. 2008) (impeachment and scope of cross examination; admissibility of prior cases)
- United States v. Hull, 419 F.3d 762 (8th Cir. 2005) (standard of review for evidentiary rulings abuse of discretion)
- United States v. Ziesman, 409 F.3d 941 (8th Cir. 2005) (closing argument discretion; fair response and rebuttal)
- United States v. Sanchez-Garcia, 685 F.3d 745 (8th Cir. 2012) (jury instruction/closing argument limits; conscience of the community)
- United States v. Young, 613 F.3d 735 (8th Cir. 2010) (application of misrepresentation enhancement (occupation))
- United States v. Starr, 533 F.3d 985 (8th Cir. 2008) (instrumental misrepresentation standard; enticement enhancement scope)
- United States v. Frankl, 250 F.3d 653 (8th Cir. 2001) (closing argument limitations and trial control)