UNITED STATES of America, Plaintiff-Appellee v. Michael GOODALE, Defendant-Appellant.
No. 12-3972.
United States Court of Appeals, Eighth Circuit.
Dec. 30, 2013.
Submitted: Oct. 25, 2013.
740 F.3d 917
We see nothing in the record to support a debatable conclusion that but for counsel‘s alleged errors, Ward would have proceeded to trial. Ward says that counsel should have arranged testing to determine whether Ward was infected with a sexually transmitted disease, apparently because one victim reported some time after the offense involving her that she was so infected. As the district court observed, however, the proposed investigation would have had little bearing on whether Ward committed the charged offense. The victim reported seeking treatment for a sexually transmitted disease in 2007, but the charged offense occurred no later than 2000, so there is little or no basis to infer a connection between the victim‘s disease and Ward‘s health status in 2000. Even assuming there were circumstantial evidence that the victim was infected by her abuser in 2000, moreover, Ward‘s health status at the time of the plea in 2010 likely could not establish his health status at the time of the offense in 2000.
Ward also contends that counsel should have inquired into an inconsistency between a detective‘s investigative notes and the charging documents regarding the dates of the alleged sexual misconduct. But any inconsistency was eliminated when the State orally amended the information at Ward‘s plea hearing to adjust the charged time period, and the discrepancy likely would have been cured before a trial as well if Ward had elected to proceed. Ward also complains that counsel failed to pursue the fact that he was incarcerated during part of the time frame alleged in the original charging documents, but again, the information was amended orally at the plea hearing to narrow the time frame and thus to eliminate Ward‘s asserted alibi. As for advice about parole eligibility, the state court apprised Ward of his ineligibility for parole at the time he pleaded guilty, but Ward elected to proceed anyway, so there is no substantial showing of prejudice.
For the foregoing reasons, we conclude that Ward has not made a substantial showing of the denial of a constitutional right. Accordingly, the certificate of appealability was improvidently granted and is hereby revoked. The appeal is dismissed.
Mark C. Meyer, argued, Cedar Rapids, IA, for Plaintiff-Appellee.
Mark Tremmel, AUSA, argued, Cedar Rapids, IA, for Defendant-Appellant.
Before BYE, SMITH, and BENTON, Circuit Judges.
BENTON, Circuit Judge.
Michael A. Goodale was convicted of five counts including aggravated sexual abuse, interstate transportation of a minor with intent to engage in criminal sexual activity, and accessing child pornography. He appeals his conviction and sentence. Having jurisdiction under
On Saturday, September 17, 2011, thirteen-year-old M.R. showed his mother a history of gay teen pornography sites on Goodale‘s laptop. (Goodale was staying with M.R. and his mother.) They took the laptop to the police where two officers interviewed them. During the taped interview, M.R. opened the laptop, demonstrating that the phrase “gay teen porn” autopopulated when he typed “ga” in the search box. An officer moved the laptop and touched the keypad for about 17 seconds during this process. M.R. also described how Goodale sexually abused him and Goodale‘s thirteen-year-old nephew, Z.G.
Police went to M.R.‘s house to locate Goodale. Consenting to questioning, he accompanied police to the station where the investigating officers interviewed him. Over his objection, they seized the laptop pending a search warrant. The officers then interviewed Z.G., who also described the sexual abuse.
Monday morning, another police officer applied for and received a state search warrant for the laptop based on information from M.R., his mother, and the two investigating officers. The application did not indicate that the officers had looked at the laptop or if they had seen anything on it.
A grand jury indicted Goodale on two counts of aggravated sexual abuse in violation of
At the close of the government‘s case, Goodale moved for judgment of acquittal under
At sentencing, the district court calculated a total offense level of 43 (including a five-level increase for repeat and dangerous sex offenders), a criminal history category of II, and an advisory Guidelines range of life imprisonment. Goodale moved for a downward variance. The court denied the motion, sentencing him to
II.
[1] Reviewing a motion to suppress, this court considers factual findings for clear error and legal conclusions de novo. United States v. Anderson, 688 F.3d 339, 343 (8th Cir.2012). This court “will affirm the district court‘s denial of a motion to suppress evidence unless it is unsupported by substantial evidence, based on an erroneous interpretation of applicable law, or, based on the entire record, it is clear a mistake was made.” United States v. Vanover, 630 F.3d 1108, 1114 (8th Cir. 2011).
A.
Goodale argues that his laptop was seized and searched in violation of the
The private search exception applies here. After discovering a history of teen pornography sites, M.R. and his mother took Goodale‘s laptop to the police station where M.R. showed officers the laptop‘s web history. This search was neither instigated by nor performed on behalf of the police. See id. at 994. During M.R.‘s demonstration, an officer moved and touched the laptop for about 17 seconds. No evidence suggests that the officer‘s viewing went further than M.R.‘s search. See id. (“When the government re-examines materials following a private search, the government may intrude on an individual‘s privacy expectations without violating the
Goodale contends that the private search exception is inapplicable because he did not consent to M.R.‘s possession or transportation of the laptop. He further believes the exception does not apply when the search and seizure results from trespass or theft by a private party. These arguments are meritless. The private search exception applies “to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.” United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) (emphasis added), citing Walter v. United States, 447 U.S. 649, 662, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980). See also United States v. Malbrough, 922 F.2d 458, 462-63 (8th Cir.1990) (upholding a search by a private citizen who trespassed on another‘s property and viewed marijuana).
B.
Goodale attacks the officers’ continuing seizure of his laptop without a warrant.
The officers had probable cause to believe the laptop contained contraband based on M.R.‘s and his mother‘s statements about its internet history, and M.R.‘s and Z.G.‘s allegations of sexual abuse. See id. The exigencies of the circumstances also demanded continuing seizure; Goodale knew about the investigation and could destroy the evidence. See United States v. Beasley, 688 F.3d 523, 529-30 (8th Cir.2012) (upholding the warrantless seizure of a computer where, like Clutter, “the police had a legitimate interest in preventing destruction of the potential contraband“).
C.
Goodale requests suppression of statements made to investigating officers on September 17 as fruit of the (allegedly illegal) laptop search. “[T]he exclusionary rule reaches not only primary evidence obtained as a direct result of an illegal search or seizure, but also evidence later discovered and found to be derivative of an illegality or ‘fruit of the poisonous tree.‘” United States v. Riesselman, 646 F.3d 1072, 1078 (8th Cir.2011), quoting Segura v. United States, 468 U.S. 796, 804, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984). “[T]he defendant bears the initial burden of establishing the factual nexus between the constitutional violation and the challenged evidence.” Id. at 1079, quoting United States v. Marasco, 487 F.3d 543, 547 (8th Cir.2007).
In the district court, Goodale moved to suppress his September 17 statements on the basis of Miranda violations, not as fruit of the laptop search. Because he did not raise this argument in his pretrial motion to suppress, it is waived. See United States v. Green, 691 F.3d 960, 963-64 (8th Cir.2012) (“[T]he mere filing of a motion is not sufficient to avoid waiver of specific arguments that are advanced for the first time on appeal. The Rule 12 waiver provision applies not only to the failure to make a pretrial motion, but also to the failure to include a particular argument in the motion.“) (internal quotation marks omitted). Regardless, because the laptop search did not violate Goodale‘s constitutional rights, his statements were not fruit of the poisonous tree.
The district court properly denied the motion to suppress.
III.
Goodale maintains M.R.‘s testimony is insufficient to prove Counts 1 and 3—that Goodale transported him across state lines to engage in sexual activity before the age of 12. Goodale contends Z.G.‘s testimony is insufficient to prove Count 4—that Goodale transported him in interstate commerce to engage in sexual activity before the age of 18. This court reviews the denial of a motion for judgment of acquittal de novo, “viewing the evidence in the light most favorable to the government, drawing all reasonable inferences in favor of the jury‘s verdict, and reversing only if no reasonable jury could have found the defendant guilty.” United States v. Gregoire, 638 F.3d 962, 968 (8th Cir.2011). This court “review[s] a denial of a motion for a new trial pursuant to
Count 1 charged a violation of
At trial, M.R. testified that he traveled from Iowa to Minnesota with Goodale and engaged in sexual conduct in Minnesota when he was younger than 12.
Q. About how old were you when the touching started in Minnesota?
A. Nine or ten.
Q. Now, in Iowa hotels, what kind of sexual touching happened between you and Michael Goodale?
A. Handjobs, blow jobs and kissing.
Q. In Minnesota hotels, what kind of sexual touching happened between you and Michael blow—excuse me Michael Goodale? Strike that.
A. Handjobs, blow jobs and kissing.
Q. Let‘s be more specific. When you‘re referring to blow jobs—when you‘re referring to handjobs, would that be just one person or both ways?
A. Both ways for handjobs and then blow jobs just me giving him a blow job.
Q. Okay. So when you were at Minnesota hotels, did you give him handjobs?
A. Yes.
Q. Did he give you handjobs?
A. Yes.
Q. Did you give him blow jobs?
A. Yes.
Q. Did he give you blow jobs?
A. No.
On cross-examination, the defense attorney questioned M.R. more specifically about his trips to Minnesota.
Q: [M.R.], if I asked you how many times do you believe you went into the state of Minnesota to a hotel or whatnot with Michael Goodale, how many times would that be?
A. I don‘t know. I don‘t know an exact number.
Q. Any idea, any estimate or—
A. No.
Q. Can you tell us, please, any dates—any firm dates that you recall when you were in Minnesota at a hotel with Michael Goodale?
A. Nope.
Q. And why is that that you don‘t remember any of those dates or—
A. Because it was a little while ago and I just didn‘t really care to remember it, so—
Similarly, Z.G. testified that he engaged in sexual acts with Goodale beginning when he was seven. He also testified that he engaged in sexual acts with Goodale in Minnesota. Z.G. did not remember the age or date on which he began engaging in sexual acts with Goodale in Minnesota.
Reviewing the sufficiency of the evidence, “[i]t is axiomatic that [this court does] not pass upon the credibility of witnesses or the weight to be given their testimony.” United States v. Clay, 618 F.3d 946, 950 (8th Cir.2010). “Credibility determinations are uniquely within the province of the trier of fact, and ‘are entitled to special deference.‘” Sullivan v. Minnesota, 818 F.2d 664, 666 (8th Cir.1987), quoting United States v. Manning, 787 F.2d 431, 435 (8th Cir.1986). “[A] victim‘s testimony alone is sufficient to persuade a reasonable jury of the defendant‘s guilt beyond a reasonable doubt.” United States v. Gabe, 237 F.3d 954, 961 (8th Cir.2001) (upholding a conviction for abusive sexual contact based on the testimony of the teenage victim), citing United States v. Wright, 119 F.3d 630, 633-34 (8th Cir.1997). See also United States v. Seibel, 712 F.3d 1229, 1237 (8th Cir.2013) (“Even in the face of inconsistent evidence, a victim‘s testimony alone can be sufficient to support a guilty verdict.“), quoting United States v. Kenyon, 397 F.3d 1071, 1076 (8th Cir.2005).
Here, the jury heard lengthy, detailed testimony from M.R. and Z.G., both of whom were 13 at the time of trial. M.R. testified that Goodale began engaging in sexual conduct with him when he was eight. He further testified that he engaged in sexual acts in Minnesota when he was nine or ten. On cross-examination, M.R. stated that he remembered this age “[b]ecause when I was eight was the first time that I met Mike and a year after we started going to Minnesota and hanging out there.” Z.G. similarly testified that Goodale first performed sex acts on him when he was seven. Although Z.G. did not remember when Goodale began taking him to Minnesota, he did remember that Goodale engaged in sexual activity with him in Rochester and Albert Lea. Z.G. also testified he saw sex acts between Goodale and M.R. in Minnesota. According to both boys, Goodale expected sexual touching when they traveled to hotels, and most of the time it occurred. This testimony establishes the elements of Counts 1, 3, and 4. See Wright, 119 F.3d at 634 (noting that had the child victim “been the government‘s sole witness against Wright, it would have been perfectly proper for the jury to credit [her] testimony and convict Wright“), citing United States v. Martinez, 958 F.2d 217, 218 (8th Cir.1992).
The jury also heard substantial evidence corroborating M.R. and Z.G. Receipts and testimony from hotel employees showed that Goodale stayed with a child at hotels in Rochester, Albert Lea, Austin, and Bloomington (four cities M.R. said he traveled to with Goodale and engaged in sexual activity). Some of these trips occurred before M.R. turned 12. Two jailhouse cooperators testified that Goodale admitted to having sex with his nephew in Minnesota hotels. Both remembered Goodale stating he had taken his nephew to the Mall of America. One cooperator also said Goodale admitted to giving boys video games in exchange for sex. Goodale‘s father testified that Goodale stayed at hotels in Minnesota with M.R. and Z.G., and that the boys slept in the same bed with him when they stayed the night at his house. Finally, text messages sent and received from Goodale‘s cell phone showed him communicating with M.R. and Z.G. about trips to Minnesota.
In sum, this evidence was sufficient to support the jury‘s verdicts on Counts 1, 3, and 4. The district court properly denied the motion for judgment of acquittal and the motion for a new trial.
IV.
Goodale argues that the district court miscalculated the Guidelines range and imposed an unreasonable sentence. This court “review[s] the imposition of sentences, whether inside or outside the Guidelines range, [under] a deferential abuse-of-discretion standard.” United States v. Jones, 612 F.3d 1040, 1044 (8th Cir.2010), quoting United States v. Hayes, 518 F.3d 989, 995 (8th Cir.2008). This court first “ensure[s] that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range.” United States v. Stults, 575 F.3d 834, 847 (8th Cir.2009), quoting United States v. Vickers, 528 F.3d 1116, 1120 (8th Cir.2008). For procedural errors, this court reviews “the district court‘s factual findings for
An abuse of discretion occurs when: 1) a court fails to consider a relevant factor that should have received significant weight; 2) a court gives significant weight to an improper or irrelevant factor; or 3) a court considers only the appropriate factors but in weighing them commits a clear error of judgment. United States v. Farmer, 647 F.3d 1175, 1179 (8th Cir.2011).
A.
Goodale contests the district court‘s application of a five-level enhancement under
Section 4B1.5(a) of the Guidelines requires a sentencing enhancement when the defendant commits the instant offense after “at least one sex offense conviction.”
Goodale does not dispute that the facts of his case support the enhancement. Rather, he asserts “an implicit cap for the offense level when USSG § 4B1.5(b) is applied.” This cap allegedly ensures that a defendant who receives a five-level enhancement under
Goodale also maintains that the district court misapplied the preponderance-of-the-evidence standard to the
In United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court rendered the Guidelines advisory. Since that time, we have repeatedly held that “due process never requires applying more than a preponderance-of-the-evidence standard for finding sentencing facts, even where the fact-finding has ‘an extremely disproportionate impact on the defendant‘s advisory guidelines [sentencing] range.‘”
United States v. Mustafa, 695 F.3d 860, 862 (8th Cir.2012), quoting United States v. Lee, 625 F.3d 1030, 1034-35 (8th Cir.2010). See also United States v. Villareal-Amarillas, 562 F.3d 892, 898 (8th Cir.2009).
The district court did not err, much less plainly err, in applying the
Goodale claims the sentence is substantively unreasonable. “Where, as here, the sentence imposed is within the advisory guideline range, [this court] accord[s] it a presumption of reasonableness.” United States v. Bauer, 626 F.3d 1004, 1010 (8th Cir.2010), citing Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). It is the defendant‘s burden to rebut the presumption and to show that the sentence should have been lower. United States v. Peck, 496 F.3d 885, 891 (8th Cir.2007) (“[T]his presumption may be rebutted by reference to the factors listed in
Goodale has not rebutted the presumption here. During sentencing, the district court began by stating that it had “carefully considered all the statutory factors that apply under
The district court did not abuse its discretion in imposing a within-guidelines-range sentence based on an individualized inquiry of the
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The judgment is affirmed.
BENTON
CIRCUIT JUDGE