*1 718 psychological risk of at serious defined tim specifically
“minor” is injury only can come within sentencing 2L1.2, of the emotional provisions § other United meaning of sexual abuse. guideline including guidelines, Cf. (8th Renville, 430, 437 abuse,” 779 F.2d see U.S.S.G. v. States “criminal sexual Cir.1985). (n.l), repeatedly § 2A3.1 comment. person a minor as consistently define however, that say, not mean to We do See, e.g., age. years of eighteen under focus on the Montenegro-Recinos’s Mr. comment, (n.l); 2G2.1 §§ 2A3.4 U.S.S.G. in a sex upon is acted age of a child who comment, (n.l); sеe also 18 U.S.C. If a criminal totally misplaced. crime is 2256(1). Montenegro-Recinos Mr. § Thus or with upon sexual acts involves statute of a minor. of sexual abuse convicted years” 15 body of “a child who is or given have con- may may and who Montenegro-Recinos, Mr. note that
We sent, 288(c), ques- § well might we in his as does himself, point at one “concedes” would the behavior described in tion whether acts described that the lascivious brief engaged abuse were it amount to sexual “probably § constitute[] Alas-Castro, аge. But we by someone of similar v. States abuse.” United Cf. (8th ten-year age difference 812, cu that (per believe 184 F.3d 288(c) child requires § between riam); Rodriguez, v. (8th Cir.1992). places the forbidden perpetrator But he and the F.2d 140-41 sex- squarely within the bounds of conduct arguing concession then limits that Alas-Castro, at 184 F.3d are ual abuse. acts abusive whether the lascivious Cf. Thomas, 813; at in 159 F.3d 299. age of the minor upon the depends volved, conviction was not for and that his Montenegro- Having concluded that Mr. 288(c)(1) prohibits § sexual abuse beсause of sexual previously convicted Recinos who are fourteen against only minors acts minor, which is a crime abuse of age. and fifteen § 2L1.2 under U.S.S.G. comment. violence (n.l(B)(iii)), im- we affirm the sentence relies, in part, Montenegro-Recinos
Mr. by the district court. Shannon, posed v. on United States Cir.1997) (en (7th banc), 386-89 teenage vic- that sex crimes with suggests (it not set a age of a certain does
tims distinguished from age) should be
specific involving younger children because
those vulnerable and America, the older children are less UNITED STATES likely physical to face a threat of Apрellee, thus less Plaintiff — assailants. See also injury from their Thomas, United States NAIDEN, Appellant. James Defendant — Cir.1998). in- But Shannon 298-300 No. 04-3306. guideline a career-offender terpreted 4B1.2(1), here, applicable is not U.S.S.G. Appeals, United States Court any violence” as which defines “crime of Eighth Circuit. risk of presents “a serious crime March Submitted: injury another.” touch- physical Our 4, 2005. Filed: Oct. is not the present instance stone injury, and we be- physical likelihood of places crime that the vic-
lieve that a sex *2 Norris,
Lyonel argued, Asst. Federal Defеnder, Public Minneapolis, (Doug- MN. Carlson, Clerk, las R. Law Federal Public office, brief), Defender appel- for lant.
Lisagaye Biersay, A. argued, Asst. U.S. MN, Attorney, Minneapolis, appellee. MURPHY, BYE, SMITH, Before Circuit Judges.
MURPHY, Judge. Circuit by James Naiden was convicted of attempting through to entice a child engage internet and mails to in unlawful activity attempting and of to induce a child to travel for unlawful sexual activi- ty. He was sentenced to months and now appeals, arguing that the district court1 erred not admitting evidence оf a comment to a af- he made Mend. We firm. Rosenbaum,
1. The Honorable James M. Chief District of Minnesota. Judge, United States District Court for the discussed menstruating. He also Doug- not be Detective On of her. taking photographs nude Police Dayton, Ohio Roderick of las into an America Online logged Department during Initially Naiden using called “ILuvOlderMen” chat room February 15 that he did conversation Stephiek06. Roderick name the screen money for a ticket not want to send her *3 Steph- identifying profile an online created for contribut- he could be arrested because named year girl old a fourteen iek06 as but that delinquency of a minor ing to profile this was Dayton; from Stephanie Dayton buy her return ticket to he would in the chat room. other visitors to Minneapolis. available When she arrived after participate did Although “Stephanie” take her two that it would responded she day, message instant enough money on that an up in the chat to save to three weeks Naiden, using buy who was a ticket to Minnе- babysitting sent to her from to was for it. agreed to send her apolis, name Jackl23904. he $30 the screen money envelope in an without He sent “James, sin- himself as Naiden identified post to a office box which a' return address responded Stephanie Minnesota.” gle, grandfather him belonged she told her single, Ohio.” “Steph, that she reit- opened only by her. Naiden and Naiden They exchanged photographs,2 secrecy importance and erated virgin. was a whether she Stephanie asked responsе her mother’s again asked what asked was. Naiden then She said she be to her absence. He also shared would coming would be interested whether she explanation landlady to his for planned his visit, in for a which case Minneapolis he would tell her Stephanie’s presence: Stephanie be over.” “virginity her would niece and that she Stephanie that was his interest, they and discussed expressed visiting parents a lot her would be because buy a ticket. Naiden plans for her to bus separating. were рlans that these be said he was concerned correspondence continued into get into kept so that would secret Stephanie March 2003. had said she was tried to learn what her trouble. He also grade, in ninth and on several occasions Stephanie would be mother’s reaction urged study get her to hard and away days. a At pretended to run for few good grades go so that she could to col- conversation, Naiden the end of this first encouraged He also her to take a lege. “teach [her] that he would language remaining in her three foreign how to fuck.” anticipation In years high school. messaging correspon- instant get meeting, their he advised her Stephanie continued on Febru- dence with pills control from the school nurse birth ary 15. He confirmed that she was four- they and assured her would use virgin suggested a and years teen old and baby experience oil so that her first they might marry in a few painful. intercourse would not be too He eighteen seventeen or and he she would be rеpeatedly expressed his concern about sixties. He told her to find would be being caught, telling Stephanie on one certificate “so when the time man her birth occasion that a Minnesota had re- road,” enticing could her a fifteen cently comes down the she been arrested for explained plans year girl his sexual for old from South Dakota to come age. Naiden him instructed explicit them in detail and told see for sex. Naiden Ste- the two of to delete e-mails and told her phanie her visit when she would her to schedule actually youthful police Stephanie's photograph was that of officer. gift apartment not inscribed a book of his of Naiden’s car and he had uncovered a poems camera, because he was con- published disposable oil, baby print new and suspicions her mother’s cerned outs of messages many people instant if she were to would be aroused see Stephiek06. but none with He was subse- signed by it was the author. quently indicted for attemрting to entice a through child the internet and mails to bought told Naiden she had engage in unlawful activity, in viola- Minneapolis ticket to 2422(b), § tion of 18 U.S.C. of at- they plan suggested trip she her return tempting to induce a child to travel for after she arrived. Naiden asked her to activity, unlawful sexual in violation of 18 visit, e-mail, delay telling her her 2422(a). U.S.C. plan you “We need better before come *4 think here. We need to ahead of the government At trial the introduced evi- I game, short-sighted. not can be arrest- of relationship dence Naiden’s online with everything police ed and lose I have the Stephanie, as well as evidence of another your here or in town find out and trade year girl with a fifteen old from Texas. they information.” that He insisted create girl that When told Naiden she was a plan departure for both her arrival and virgin, he had asked whether she would and decide what to tell her About mother. him if have sex with he traveled to Texas. Stephanie a week later told him that her principal defense to chаrges going spend long mother was to weekend in this case was that he had not believed Kentucky boyfriend with her that Stephanie that age was under and that he Friday no that there would be school be- therefore lacked the intent to commit the training. cause of teacher She Nai- crimes with which he was charged. He agreed den that her mother had to let her relied on evidence of his online relationship stay at a helped friend’s house. He her a person using the screen name of remaining plans trip make the for a to PixieTinkerbelle, profile whose described on March 7 Minneapolis and for a cover year high her as a seventeen old school story In to tell her mother. their last Stephiek06, student. Like PixieTinker- correspondence on March Naiden told met in a belle Naiden chat room and con- Stephanie, crazy fuck like “[W]e will for sexually explicit correspondence ducted days.” these two eventually with him. She told Naiden that Minneapolis Naiden was arrеsted at the adult, she was an and Naiden used this bus station on March 2003 officers experience argue to at trial that he had Minneapolis Department from the Police suspected that Stephiek06 really was also Inspector. the United States Postal an him adult. The convicted on both being After rights, read his Miranda Nai- counts, and the district court sentenced den told officers that he had not intended him in prison. to 54 months to have sex with because he was appeal argues Naiden On impotent illegal and because it is to have district court committed reversible error pocket sex with a minor. In his he never- by excluding proffered testimony from his syringe theless had medication and a for penile injection therapy, alleged friend Louise Viste-Ross. Naiden and evidence was dysfunction ly February later obtained that his erectile told Viste-Ross on being successfully.3 was treated Searches that he had met someone online who said testify, govern- testimony 3. Since did not the officers or the Naiden merits to attempt treating urologist. ment did to introduce his state- or con of deliberate the likelihood fourteen, gate he did not but that she Fed.R.Evid. misrepresentation.” scious was fourteen. really believe she note; 803(1) see also hearsay advisory committee’s Ms statement conceded 1231, 1243 Udey, under admissible States it was argued that 803(3) 803(3), (8th to (connecting Rule Evidence Federal Rule discussing lapse rule when Rule exception an provides then ex- and a statement the declarant’s an event time between for statements event). The district of mind. isting state about apply did that Rule ruled that Naiden was if we assume Even to admit and declined evidence proffered he referred speaking decision district court’s review the it. We online, the evi he had met person a new an of discre- abuse to exclude excluded because properly dence was only a conviction and will reverse tion February to his friend has evidentiary ruling improper when an contemporaneous substantially was not or had morе rights affected substantial Stephanie on with his conversation verdict. United slight than a effect did His statement Ballew, acquaintance nev? to be not believe his Cir.1994). not made as immediate fourteen was *5 her, with to his communication reaction that he did not Naiden’s statement ample opportunity to but after he had had to be four acquaintance online believe his situation. See United States reflect on the Rule hearsay under 801 years old is teen (8th 118, 561 F.2d 125 Cir. Partyka, v. statement an out of court because it was 1977) “self-serving declara (contrasting of the matter the truth offered to or state of past about a attitude tions did not believe That Naiden asserted. of declar- [the mind” with “manifestations offered was fourteen was Stephanie mind, his immediate present state of ant’s] intended to have sex that he -had not show event). to an reaction” a minor. Naiden submits with 803(3) exception be evidence fits the Rule illustrates how our court has Partyka “existing was of his cause the statement state- focused on whether thе declarant’s state of mind.” “trustworthy” it has had ment is admissibility analyze occasion to exceptions is
Underlying the Rule 803 Rule hearsay under the guarantees of evidence that “circumstantial the idea Jewelry Mfg. Hills exception. in See Black may be found some trustworthiness” Rush, Inc., 746, 633 F.2d 752 statements, making them as reli- Co. v. Gold (8th Cir.1980). past about “a Declarations testimony. Fed.R.Evid. able as mind,” Partyka, 561 keyA cir- attitude or state advisory committee’s note. 803 F.2d, 125, likely at less to be reliable trustworthiness are guarantee of cumstantial if is diminished а requires that it because trustworthiness respect to Rule is the time to reflect on declarant has had contemporaneous be of his conduct. potential implications state of existing” “then declarant’s LeMaster, sensation, 54 F.3d 1231- mind, emotion, con- U.S. v. physical See (6th Cir.1995); Neely, re- U.S. advisory committee’s note dition. The (7th Miller, Cir.1992); essentially special- U.S. is ports the rule Cir.1989). 801(1), premised Rule application ized passage how the of this case show con- facts supposition “substantial to make а de- may prompt ne- time someone temporaneity of event and statement misrepresentation liberate of a former when he went to meet Stephanie’s bus on March 7. state of mind. Naiden’s communication Stephanie day The second and more important reason Viste-Ross, after his conversation with not to interfere with the verdict here provides examples several of how he was is the overwhelming amount of evidence attempting to
otherwise conceal his crimi- еstablishing Naiden’s belief that Stephanie nal plans intentions. These include his to was a minor. He appears from the evi- landlady tell his that Stephanie was his dence to have been worried about the niece, his reluctance to send danger of being apprehended for enticing mail, money through the and his eventual a minor to have sex. repeatedly acquiescence forwarding it without exhorted keep their relation- secret, ship return address. The evidence he high- here deleted all of her commu- nications and lights significance likewise, of the instructed her to do contempora- money sent her and his requirement neous book without a ensuring that hear- dedication, return address or he created a say evidence be reliable in order for it to story cover landlady, 803(3). insisted be admissible under Rule We con- that Stephanie plausible create a one for clude that the district court did not abuse her mother as well. inquired He also by excluding its discretion the proffered abоut her high school studies and advised testimony.
her to see the school nurse for birth con- pills, trol indicating that he be- Even the exclusion of the evi lieved Stephanie to be an adolescent. We erroneous, however, dence were viewed as conclude that proffered evidence would it justify would not overturning Naiden’s not introduce light reasonable doubt in conviction because the evidence did not all of *6 contrary the evidence admitted at affect his rights substantial or have more triаl. slight than a effect on the verdict. The Since the district court did not proffered abuse its evidence was not strong. discretion or commit reversible error in allegedly The statement made to Viste excluding evidence, proffered we af- identify Ross did not acquaintance the new judgment. firm the as a person even as Naiden February had met on investiga 13. The BYE, Circuit Judge, concurring. tion revealed that Naiden was communi I separately write because I believe the cating many online, people and at district excluding court erred in Viste- least two of the others had represented testimony Ross’s hearsay. as inadmissable (PixieTinkerbelle themselves as minors Texas). year and the fifteen girl old from Naiden charged with the offenses of Even if we were to assume the state using the in attempt to en- Internet/mail Stephanie, ment referred to say it did not tice a activity child for unlawful sexual how old he thought she was. He could attempting to induce a child to travel for thought fourteen, have that she was not unlawful аctivity. alleged The plausibly more fifteen or sixteen. The activity criminal February commenced on proffered comment to Viste-Ross was also began when Naiden an online very early made in his relationship with relationship with Stephanie, and continued Stephanie and could repre 7, 2003, therefore have until March when he went to the sented a state of quite mind different from Greyhound station to meet her. To con- Naiden’s offenses, mindset his March e-mails or vict Naiden govern- of the requires of Rulе language The proving Naiden the burden
ment had
pres-
indicate the declarant’s
statement to
was under
believed
state
prior
mind rather than a
ent state of
Naiden’s belief of
Thus,
age.
notes,
key
majority
of mind. As the
alleg-
during the time he
age
Stephanie’s
trustworthi-
guarantee of
circumstantial
criminal con-
charged
edly engaged
to Rule
is the
respect
ness with
trial,
sought
At
relevant.
duct was
express
the statement
requirement
testi-
Viste-Ross’s
introduce his friend
mind.
existing state of
the declarant’s then
on Febru-
a discussion
mony
during
majority
Naiden’s statement
asserts
Viste-Ross, “I am
ary
2003 Naiden
was a declaration of
to Viste-Ross
who
online
corresponding with someone
mind,” i.e. his state of
“former state of
I do not believe
they
fourteen but
says
are
February
during his online
mind on
objected to the ad-
government
it.” The
Stephanie.
disagree.
I
conversation with
testimony
grounds
mission of the
stating
“I
present
tense
Naiden’s use
Naiden’s
argued
counsel
hearsay. Defense
it” shows the statement
do not believe
to the
exception
fеll under
at the time of
manifested Naiden’s belief
demonstrating
hearsay rule as a statement
Unit-
discussion with Viste-Ross. See
district court
of mind. The
Naiden’s state
Partyka,
ed States
testimony on the
excluded Viste-Ross’s
(holding district court erred
hearsay, with-
grounds it was inadmissable
excluding
spouse’s
testimo-
defendant’s
explanation.
out further
defendant made to
ny about statements
statements were not
party
third
because
statement, other than one
Hearsay “is a
past state of mind but man-
declarations of
testifying at
by
made
the declarant while
im-
state of mind as
present
ifestations of
in evidence to
hearing,
trial or
offered
party’s proposal
to third
mediate reactions
matter asserted.”
prove the truth of the
discussion). Moreover,
during
majori-
noted
Fed.R.Evid. 801. As
February 14 is relevant
state of mind on
con-
ty, Naiden’s statement to Viste-Ross
period
14 is within the
because
it was a state-
stitutes
because
during
allegedly
which Naiden
en-
of time
of court and
Naiden made
out
ment
while
forming
conduct
the basis of
gaged
the matter
thе truth of
introduced to
offenses,
in the in-
charged
as noted
not believe Ste-
asserted —that Naiden did
Compare
dictment.
United States
*7
pro-
years
old. Rule 802
phanie was
(8th Cir.1984)
1231, 1243
Udey, 748 F.2d
it
hearsay is inadmissable unless
falls
vides
exclusion of ex-
(affirming district court’s
exceptions.
Rule’s
Rule
under one
the
defendant made on
culpatory statements
803(3)
prohibiting
excludes from the rule
5, which was after his arrest and two
June
conduct,
hearsay: “A
of the declarant’s
days
statement
criminal
because defen-
after
5,
mind, emotion,
stаte of mind on June
the
existing
present
state of
sen-
dant’s
then
statements,
(such
the
was not
date he made
sation,
in-
physical condition
as
3, the
to his state of mind on June
relevant
tent,
motive,
feeling,
plan,
design, mental
indictment).
date of the offense
health),
bodily
including
pain, and
memory
or belief to
a statement of
majority contends the district court
The
”
....
or believed
the fact remembered
the statement because
properly excluded
803(3).
statement “I
Fed.R.Evid.
Naiden’s
and
opportunity
had an
to reflеct
803(3)
it” fits under Rule
do not believe
The
fabricate his statement.
absence
a require-
it is a statement of Naiden’s then
to reflect is not
opportunity
because
803(3),
in
of Rule
ment included
the text
mind.
existing state of
governing
nor have our cases to date
the
Even
it were proper for the district
exception
of mind
state
under Rule
court to exclude Naiden’s statement based
questions
candor,
on
imposed
requirement.
view,
such a
about
Udey,
my
See
1243;
facts
this case
Partyka,
present
ty states: Appellee, may prompt time of passage how the misrepre- make a deliberate to someone mind: The of their state of sentation” attempts of Naiden’s examples cites SUTHERLIN, Appellant. William Scott intentions” his criminal
to “conceal his conversa- No. 05-1261. day after “February including Naiden’s Viste-Ross,” with tion Appeals, Court of his Stephanie was landlady tell his plans to Eighth Circuit. to send reluctanсe niece his cannot be the mail. It money through 15, 2005. Sept. Submitted: however, time, prompted of passage because, ac- crime conceal his Naiden to Filed: Oct. 2005. began Naiden government, to cording very begin- crime from the concealing his “In the argues: government
ning. 2003 communication already begun had
Stephanie, to have sex plan mask his
crafting lies to communica- In this first a child. disap- Stephanie’s
tion, stage to he wanted away running as her from Ohio
pearance would Stephanie he He told
from home. demanded caught and jail if were
go to plan her absolutely no one’ about
she ‘tell have sex with Minnesota to travel to n. I 15-16 also Br. at Appellee’s
him.” demonstrating evidence
do not believe criminal conceal his attempt
Naiden’s excluding
activity be the basis should self-serving. Rely- as
Naiden’s statement attempt
ing on evidence activity to exclude
conceal criminal necessarily pre-
exculpatory activity the existence criminal
sumes ^to presumption reverses the
conceal. This guilt. presumption trial to a
innocence at district court
Although I believe the testimony excluding Viste-Ross’s
erred hearsay, agree I the error
as inadmissible overwhelming light harmless guilt. demonstrating Naiden’s judgment. I
Accordingly, concur