Federal Appeals Court Upholds Use of Chat Room Evidence for Attempting to Entice a Minor - U.S. v. Grauer

January 2, 2013 by David S. Seltzer

Charges for attempting to entice a minor to engage in sexual activity are almost always proven by showing Internet chat, email or phone texting logs between the accused and a real or pretend minor. This evidence has been upheld in the vast majority of challenges, however. In U.S. v. Grauer, defendant Ted Grauer challenged the cross-examination of his expert witness, saying misconduct during that cross-examination deprived him of a fair trial. He also argued that there was insufficient evidence for a related child pornography conviction and a sentencing error. The Eighth U.S. Circuit Court of Appeals upheld all three.

Grauer, of Iowa, started chatting online with a purported 14-year-old girl who was actually a deputy sheriff from the Iowa Crimes Against Children Task Force. The chats quickly became sexual, and Grauer sent "Jenny" several links to pornographic images using young-looking models. They arranged to meet in Jenny's purported hometown in April of 2010. When Grauer arrived at the meeting place, of course, he was arrested. A later search of his home, with a warrant, found a laptop containing images determined to be child pornography. At trial, Grauer called an expert witness who testified that research shows that most sexual Internet chat involving "minors" is actually between two adults. During the cross-examination, the prosecution asked him about four different local cases involving actual minors before sustaining Grauer's objections. Grauer was ultimately convicted of attempted enticement and child pornography possession, and sentenced to a total of 151 months in prison.

On appeal, Grauer first challenged the line of questions in the cross-examination, saying it argued facts not in evidence and tended to inflame the jury. The Eighth Circuit disagreed. The court said the cross-examination was attempting to establish that the expert's experience was limited to cases of "pretend minors" like Grauer's. The expert "embellished his credibility with the remarkable assertion" that cases of actual minors are rare or nonexistent, the Eighth said, so an attempt to impeach him with counterexamples was not improper. Similarly, the court upheld the trial court's decision to let stand a closing argument that brought up other cases. Nor was it impermissibly inflammatory to say the jury was "the conscience of the community" and had "to see terrible things, disgusting things." It further upheld the child porn conviction, saying the government adequately established that he knew the images were on his computer. Finally, the Eighth upheld the use of a sentence enhancement for Grauer's misrepresentation of his age, name, occupation and sex life, saying they were made with intent to entice.

Like many cases involving Internet sex crimes, this case is very fact-intensive. And appeals courts are often reluctant to overrule trial courts on fact-intensive issues, because the trial court is the finder of fact; the appeals court's job is to apply the law correctly. However, I suspect a different court could have found in Grauer's favor on the issue of inflammatory comments and Grauer's misrepresentations. For example, his choice to lie about his name doesn't seem like it would be particularly helpful in enticing a minor, and the difference between aged 49 and 58 likewise seems irrelevant. Even his lies about other girlfriends may not have been helpful at seducing a 14-year-old, who could have been intimidated rather than impressed. From the language in the opinion, I wouldn't be surprised to learn that the Eighth Circuit panel finds child pornography crimes emotionally disturbing. As understandable as that may be, it's not a good basis to make important legal decisions.

Seltzer Law, P.A., represents clients across the United States who are accused of serious crimes involving the Internet, computers or other technology. If you or someone you love is facing charges, don't wait to call us for a free, confidential consultation. You can reach us through our website or call 1-888-THE-DEFENSE (1-888-843-3333).

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