1 The Honorable Ronald E. Longstaff, United States District Judge for the Southern District of Iowa. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 08-1335

___________ United States of America, *
* Plaintiff – Appellee, * * Appeal from the United States v. * District Court for the * Southern District of Iowa. Graeme Pierson, * * Defendant – Appellant. *

___________ Submitted: September 24, 2008 Filed: October 20, 2008

___________ Before MURPHY, ARNOLD, and BENTON, Circuit Judges.

___________ MURPHY, Circuit Judge.

Graeme Pierson was charged with attempted production of child pornography, in violation of 18 U.S.C. § 2251(a), and attempting to induce a child to engage in criminal sexual activities, in violation of 18 U.S.C. § 2422(b). Pierson was convicted by a jury on both counts and sentenced to 300 months imprisonment by the district
court. 1 On appeal Pierson challenges the su fficiency of the ev idence, the admission-2- at trial of a prior conviction for ind ecent contact with a child, a sentencing enhancement under U.S.S.G. § 4B1.5 for re peat and dangerous offenders, and application of a mandatory minimum se ntence under 18 U.S.C. § 2251(e) based on a qualifying prior conviction under state law. We affirm.

I.

Lieutenant Kent Smock of the Iowa Internet Crimes Against Children Task Force of the Black Hawk County, Iowa Sheriff's Office established the undercover profile of a fictional fourteen year old Iowa girl with the screen name brenda_j_2011

. Acting with that identity, he entered a Yahoo internet chat room for romance seekers in the state of Iowa. On February, 9, 2007, the undercover prof ile was contacted by an individual, later determined to be Graeme Pierson, using the screen name Modelman_Matthew2006 . In response to questioning by Pierson, brenda_j_2011 indicated that she was a fourteen year old girl. After Pierson requested a picture of her, Lieutenant Smock sent him several photographs of a female officer taken when she was approximately thirteen y ears old. Pierson responded that brenda_j_2011 was cute, mentioned that he was looking for a girlfriend, and asked the undercover profile to have sex with him. Pierson was forty four years old at the time.

Over the course of the following several months, Pierson communicated regularly with brenda_j_2011 in chat rooms, through instant messaging, and offline via cellular telephone text messaging. The conversations were invariably sexually explicit and typically revolved around Pier son's attempt to induce the undercover profile to have sexual relations with him and to perfo rm graphic sexual acts for transmission to him over the internet.

In order to achieve this goal, Pierson relied on a coterie of distinct internet personas, styling himself variously as Modelman_Matthew2006 (a handsome nineteen year old male), gpierson06 (Modelman_Matthew2006 's terminally ill and love starved-3- thirty six year old brother), strictartist05(a twenty year old female), and jdepp2000 (ostensibly the actor Johnny Depp).

Pierson initially utilized his teenage persona, Modelman_Matthew2006 , to make contact with brenda_j_2011 , earn her trust, and determine whether she was open to sexual relations with an adult. Satisfied that she was willing, Pierson needed to introduce an older persona into the mix in order to have sex with brenda_j_2011 because Modelman_Matthew2006 was supposedly nineteen while Pierson was forty four. At this point Pierson introduced gpierson06 , Modelman's adopted thirty six year old brother who supposedly was dying of cancer and desperately in need of the succor only sex could provide. Gpierson06 then began communicating regularly with the undercover profile. In his efforts to procure sex and personal pornography from brenda_j_2011 , gpierson06 depended on both natural co mpassion for the terminally ill and cold hard cash. For instance, gpierson06 informed brenda_j_2011 that if she were willing to provide him with sex and explicit imagery, he would assist her in obtaining a job as a model where she might earn as much as $50,000.

Strictartist05, Pierson's multi purpose female persona, first approached brenda_j_2011 in the guise of an undercover o fficer on the hunt for pedophiles. As strictartist05, Pierson asked brenda_j_2011 if she too was a poli ce officer. When the undercover profile reported this to gpierson06 and threatened to terminate their relationship for fear of parental punishment, Pierson responded that strictartist05was a friend who was merely attempting to confirm that brenda_j_2011 was not a law enforcement officer. Later, satisfied that brenda_j_2011 was a minor, Pierson employed strictartist05to attempt to persuade brenda_j_2011 to have sex with gpierson06. Strictartist05shared fictional tales of her own underage sexual relationship with the adult gpierson06 . These relations, according to strictartist05 , led to a lucrative career as a model. Finally, jdepp2000contacted brenda_j_2011

. Pierson, posing as the international film star, explained that he too had befriended strictartist05through gpierson06

. Jdepp2000asserted that his friendship and untold riches awaited brenda_j_2011 if she would only have sex with gpierson06

.-4- After Pierson mailed twenty se ven dollars to the unde rcover profile for the purpose of purchasing a webcam for her to use in a sexually explicit performance, agents of the United States Postal Insp ection Service obtained search and arrest warrants and arrested him on May 4, 2007. Pierson was read his Miranda rights, signed a waiver of those rights, and agreedto speak with the agents. During this interview, Pierson made a series of dama ging admissions. He admitted to using the Modelman_Matthew2006, gpierson06, and strictartist05screen names. He admitted to engaging in sexually explicit communi cations with the undercover profile. He admitted to sending money to the undercover profile for the purpose of purchasing a webcam. He admitted that he wanted th e undercover profile to transmit nude pictures of herself to him via the we bcam. He admitted that he would be sexually aroused by viewing explicit photographs and moving images of a fourteen year old girl. He admitted attempting to set up at least tw o meetings with the undercover profile. Finally, Pierson maintained that while hehad initially doubted whether the undercover profile was actually fourteen years old, hehad come to believe that she was a minor over the preceding several weeks.

At trial Pierson attempted to paint a mo re benign portrait. He described the internet chat rooms in which he spent hi s time as a virtual playground where visitors indulged their fantasies through masquerade. The corpulent described themselves as svelte. The old described themselves as young. Indeed, Pierson admitted at trial that he used the strictartist05screen name to appear to be a female. He also testified that he had once entered into an online relati onship with an individual who purported to be a minor only to later discover that the object of his attention was middle aged. Pierson asserted that he therefore believe d throughout the course of their contact that the undercover profile was an adult imitating a child. At one point Pierson conducted research based upon identifying informati on provided by the undercover profile and came to believe that he was communicating with a forty year old woman rather than a fourteen year old girl. Pierson playedalong nonetheless he said because the thought of engaging in sexual activity with a fourt een year old was exciting to him. Although Pierson denied that he would ever act on hi s desire to engage in sexual contact with-5- a minor, the government introduced evidence pr ior to the conclusion of trial that he had previously been convicted in Io wa for indecent contact with a child.

The jury found Pierson guilty of one count of attempted production of child pornography, in violation of 18 U.S.C. § 2251(a), and one count of attempting to induce a child to engage in sexually exp licit activities, in viol ation of 18 U.S.C. § 2422(b). At sentencing the district court found Pierson eligible for the U.S.S.G. § 4B1.5 enhancement for repeat and danger ous offenders and the mandatory minimum sentence under 18 U.S.C. § 2251(e) for offende rs with a qualifying prior conviction under state law.

Pursuant to U.S.S.G. § 2G2.1, which covers offenses involving the sexual exploitation of a minor, Pierson's base o ffense level was 32. Because the offense involved a minor between the age of twelve and sixteen, Pierson's offense level was increased by two pursuant to § 2G2.1(b)(1)(B). Because the offense involved the knowing misrepresentation of the participant' s identity with the aid of a computer in order to persuade a minor to engage in sexually explic it conduct, Pierson's offense level was increased by a further two levels. Finally, because Pier son is a repeat and dangerous sex offender agains t minors under § 4B1.5, his offense level was increased one additional level to 37 and his criminal history category was increased from I to V. With a total offense level of 37 and a criminal history category of V, Pierson's guideline sentencing range was 324 to 405 months.

The mandatory minimum sentence for attempted production of child pornography under 18 U.S.C. § 2251(a) is fifteen years, but an individual with a prior qualifying conviction is subject to a mandatory minimum sentence of twenty five years or 300 months under 18 U.S.C. § 2251(e). A conviction under 18 U.S.C. § 2422(b) for attempting to induce a child to engage in criminal sexual activities carries a mandatory minimum sentence of ten years or 120 months. The government did not object to a below guideline sentence. The district court sentenced Pierson to 300 months or twenty five years on Count I and ten years on Count II, to be served concurrently.-6- On appeal, Pierson challenges the suffici ency of the eviden ce, the admission at trial of his prior conviction for indecent contact with a child, and his eligibility for both the § 4B1.5 enhancement and the st atutory mandatory minimum under 18 U.S.C. § 2251(e).

II.

Pierson first contends that the recordcontains insufficient evidence to support his convictions, arguing that no reasonabl e jury could find beyond a reasonable doubt that the elements of Counts I and II were satisfied. In determining whether sufficient evidence exists to support a conviction, we must decide "whether, after viewing the evidence in the light most fa vorable to the prosecution, any rational trier of fact could have found the essential elements of th e crime beyond a reasonable doubt." Jackson v. Virginia , 443 U.S. 307, 319 (1979) (emphasis in the original). Evidence supporting conviction "need not preclude every outcome other than guilty." United States v. Ramirez , 362 F.3d 521, 524 (8th Cir. 2004). Moreover, "[t]his st andard is a strict one, and a jury verdict should not be overtur ned lightly." United States v. Sykes , 977 F.2d 1242, 1247 (8th Cir. 1992).

In order to convict a defendant of th e crime of attempted production of child pornography, in violation of 18 U.S.C. § 2251(a), as charged in Count I, the government must prove the following elements beyond a reasonable doubt: (1) that the defendant believed during the time period alleged in the indictment that the child named in the indictment was under the age of eighteen; (2) that the defendant attempted to use, persuade, induce, entice, or coerce that child to engage in sexually explicit conduct as defined in 18 U.S.C. § 2256(2); (3) that the defendant voluntarily and intentionally engaged in this beha vior for the purpose of producing a visual depiction of such conduct; and (4) that the materials used to attempt to produce the visual depiction were maile d, shipped, or transported, including by computer, in interstate or foreign commerce.-7- Since Pierson does not dispute element four, the question is only whether a reasonable jury could find that the government proved elements one through three beyond a reasonable doubt. In respect to elem ent two, there was ev idence that Pierson attempted on numerous occasions to persua de the undercover profile to engage in sexually explicit conduct, as defined in 18 U.S.C. § 2256(2), for transmission to him via a webcam. The evidence showed that Pierson requested naked photos of the undercover profile, aske d if she would perform sexually explicit acts in front of a webcam and transmit th e images to him over the internet , requested her address so that he could send money to purchase the webcam , and offered to pay her if she would convince her twelve and thirteen year old fri ends to pose nude in front of the webcam. The government therefore carried its burden on element two. Element three requires little comment. Since there wa s no evidence that Pierson was coerced into requesting these sexually explicit depictions or wa s actually seeking something altogether different, the government met its burden on the third element.

We also conclude that a reasonable ju ry could have found that the government proved beyond a reasonable doubt that Pier son believed that the undercover profile was a minor. Pierson relies primarily on the argument that his personal internet research and thorough questioning of the underc over profile show that no rational trier of fact could have found beyond a reas onable doubt that he believed he was communicating with a minor. There was ev idence that after Pierson requested a telephone number from the underc over profile, he discovere d that the number had at one time been registered to a forty yearold woman who was coincidentally named Brenda. Pierson repeatedly quizzed the undercover profile about her biography in an effort to determine whether she was actually fourteen. The jury could find from the evidence at trial that Pierson's attempts to determine the age of the undercover profile were designed not only to confirm that hewas not communicating with an undercover officer, but also to confirm that he was communicating with a minor.

Moreover, there was credible evidence that Pierson believed that the undercover profile was a minor female. During one online chat with the undercover profile-8- Pierson stated that he believed that she was a fourteen year old female. During another online chat Pierson stated "I know your [sic] 13 and in 8th grade right? I do not care if you are I still like you okay? Pl ease just tell me the truth from now on please. I am going to like you and help you model for real. I am not going to get you in any trouble just please do not get me in any trouble okay?" Pierson also told the Postal Inspector after his arrest that during "the last two weeks I was starting to think she was fourteen." Piers on was also wary of meeti ng with the undercover profile before she transmitted live images of herself to him via webcam. The following exchange is illustrative:

Undercover Profile: r u ever gonna comec me since u aint sick no more? Pierson: YES after I see you nude on the cam. Undercover Profile: k. Pierson: Then I know your safe okay? Undercover Profile: huh? Pierson: If I see you nude on the cam I will know yur real.

These facts, when viewed in the light most favorable to the prosecution, would allow a rational trier of fact to find beyond a r easonable doubt that the defendant committed the essential elements of the offense.

In order to convict a defendant of the crime of attempting to induce a child to engage in criminal sexual ac tivities, in violation of 18 U.S.C. § 2422(b), as charged in Count II, the government must prove the following elements beyond a reasonable doubt: (1) that the defendant used a facility of interstate comme rce, such as the internet or the telephone system; (2) that the defendant knowingly used the facility of interstate commerce with the intent to pers uade or entice a person to engage in illegal sexual activity; and (3) that the defendant believed that the person he sought to persuade or entice was under the age of ei ghteen. The government need not prove that the defendant intended to participate in a physical sexual act. It is sufficient for the government to prove that the defendant intended to persuade or entice a minor to engage in illegal sexual activity. Factual impossibility is not a defense to the charge.-9- We conclude that the government has carried its burden in Count II. Pierson does not dispute element one. The same ev idence that was rele vant on Count I for elements two and three of the crime of attempted production of child pornography is relevant to the second elemen t of attempting to induce a child to engage in criminal sexual activities, and the evidence applying to the first element of the crime charged in Count I is relevant to the third elemen t of the crime of attempting to induce a child to engage in criminal sexual activities.

III.

Pierson next contends that the districtcourt abused its discretion in permitting the government to cross examine him at tr ial about his prior conviction for indecent contact with a child. A district court's ev identiary rulings are reviewed for abuse of discretion. United States v. Cook , 454 F.3d 938, 940 (8th Cir. 2006).

The district court admitted the eviden ce under Federal Rule of Evidence 404(b). Under Rule 404(b), evidence of other crimes may not be offered to prove criminal propensity but it is admissible to prove mo tive, intent, preparation, plan, knowledge, and absence of mistake or accident. United States v. Johnson , 439 F.3d 947, 952 (8th Cir. 2006). "[W]e construe Rule 404(b) as a rule of inclusi on and have frequently upheld the admission of prior ... convictions in cases where the defendant denied committing the charged ... offense." Cook , 454 F.3d at 941. Rule 404(b) is of course subject to the balancing requirement f ound in Rule 403 which requires the court to balance the probative value of evidence with its prejudice. Id. Thus, although "all Rule 404(b) evidence is inherently prejudici al, the test [for exclusion] under Rule 403 is whether its probative value is substantially outweighed by the danger of unfair prejudice." Id . (emphasis in the original). Moreover, even unfairly prejudicial evidence is generally admissible if the pe rson against whom the prejudicial evidence was offered opened the door to its admission by offering related favorable evidence. United States v. Senffner , 280 F.3d 755, 763 (7th Cir. 2002).-10- Prior to trial Pierson moved in limine to exclude his prior conviction for indecent contact with a child pursuant to Rules 403 and 609. The government informed the district court that it did not intend to utilize evidence of the prior conviction in its case in chief, but reserved the right to revisit the issue if Pierson testified. The district court granted the motion with respect to the government's case in chief, but indicated that it would rec onsider the issue if Pierson testified.

At the close of the government's case, the district court revisited the issue after confirming that Pierson intended to tes tify. Relying on Rule 404(b), the government argued that the prior conviction, despite th e fact that it was twenty years old, was relevant based on the similarity between the conviction and the charges in the current indictment. In determining the probative va lue of prior crimes, courts consider the similarity between the char ged and uncharged acts and th e remoteness of the other act in terms of time. Johnson , 439 F.3d at 952. The government also argued that despite the risk of unfair prejudice, the evidence of the prior conviction was relevant to show intent, lack of mistake, pl an, and preparation. Although the district court considered that the prior conviction "would be extrem ely prejudicial," it concluded that it might become relevant depending on the nature of Pierson's testimony. During direct, Pierson testified in the following manner:

Q. Are you denying that [discussing having sex with a fourteen year old girl] excites you? A. No. Q. And after that you still tried to – at least on the internet did you still try to set up meetings with her? A. We tried to set up two. Q. And did that ever occur? A. No. Q. Why didn't that occur? A. I had no interest in meeting her. And plus I knew it wasn't a fourteen year old, and it was just on the computer.-11- The government contends that this testim ony opened the door for the admission of his prior conviction and that Pierson opened it further through the following exchange on his cross examination:

Q. So you wouldn't want to have any sexual contact with young girls? A. In person, no, sir. Q. And you're sure about that? A. Yes, sir. Q. And that's never sexually – you've never been sexually attracted to physically have contact – A. Yes, I have been; but that doesn't mean – in my heart I don't believe I want to. Q. That means you wouldn't ever act on it; correct? A. That's correct.
After this exchange, the trial court rule d that his prior conviction for indecent contact with a child was admi ssible. Pierson then answer ed in the affirmative when asked if he had previously been convicted of indecent contact with a child. At the close of evidence the district court made a record to show that Pierson's denials had accentuated the relevancy of his prior c onviction for purposes of the Rule 403 balancing test.

We conclude that Pierson's testimony on direct and cross opened the door for admission of his prior conviction and made it relevant. As the Seventh Circuit has explained, "a party cannot be permitted on the one hand to introduce evidence that appears favorable to his argument and then complain, after the ci rcumstances are fully developed, because the ev idence becomes detrimental to his cause." Senffner , 280 F.3d at 763. Here, Pierson de nied on both direct and cross examination that he would actually carry out his fantasy of engaging insexual relations with a minor. This self serving testimony opened the door to the admission of his prior conviction for indecent contact with a child.-12- A trial court has significant discreti on in conducting the Rule 403 balancing
test. United States v. Ruiz , 412 F.3d 871, 881 (8th Cir. 2005) . Reversal is appropriate only if the trial court failed to engage in the required ba lancing process or when it is impossible to determine from th e record whether it did or not. 2 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 403.02[1][b] (2d ed. 2008). It is sufficient if we can discern from the record that the trial court performed the requisite balancing. Id. Here, there is no doubt that th e district court performed the appropriate 403 balancing test when it ad mitted the 404(b) evidence. We conclude that the district court did not abuse its discretion by admitting evidence of Pierson's prior conviction.

IV.

Pierson finally contends that the district court erred in applying a mandatory minimum sentence under 18 U.S.C. § 2251(e) for offenders with a qualifying prior conviction under state law and finding hi m eligible for a § 4B1.5 guideline enhancement as a repeat and dangerous offender. We revi ew de novo a district court's application of an enhancement based upon a prior conviction. United States v. Stallings , 301 F.3d 919, 920 (8th Cir. 2002).

A 25 year mandatory minimum sentence applies if a defendant has violated 18 U.S.C. § 2251(a) and has a prior convicti on under state law th at qualifies under 18 U.S.C. § 2244(a)(3) as "abusive sexual c ontact" involving a minor. The § 4B1.5 guideline enhancement for repeat and dange rous offenders applies if the instant offense is a qualifying sex crime committed af ter being convicted of a certain type of sex offense as defined by fede ral law. One such predicate offense is abusive sexual contact. Under federal law abusive sexual contact includes in relevant part the "intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of a ny person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person." 18 U.S.C. § 2246(3).-13- In 1987 Pierson pled guilty to and was convicted of indecent contact with a child in violation of Iowa C ode § 709.12. The Iowa statute provides in relevant part that:

A person eighteen years of age or older is upon conviction guilty of an aggravated misdemeanor if the pers on commits any of the following acts with a child ... for the purpose of arous ing or satisfying the sexual desires of either of them: 1. Fondle or touch the ... breast of the child. 2. Touch the clothing covering th e immediate area of the ... breast of the child. 3. Solicit or permit a child to fondle or touch the inner thigh, groin, buttock, anus, or breast of the person. 4. Solicit a child to engage in any act prohibited under section 709.8....
To determine whether a prior offense qua lifies as a predicate offense for the purpose of a statutory mandatory minimum or a sentencing enhancement, federal courts employ a "formal categorical appr oach" which requires that the sentencing court "look only to the fact of conviction and the statutory definition of the prior offense." United States v. Spudich , 510 F.3d 834, 837 (8th Cir. 2008) (quoting Shepard v. United States , 544 U.S. 13, 17 (2005)). Howeve r, where as here, the prior offense was committed in a separate jurisdic tion in which the offense is defined more broadly than the "generic offense" enumer ated in the current prosecution, federal courts employ a "modified categorical approach." Spudich , 510 F.3d at 837. With regard to guilty pleas under this anal ysis, the Supreme Court has held that :
[I]nquiry ... to determine whether a plea of guilty ... defined by a nongeneric statute necessarily admitted elements of the generic offense is limited to the terms of the charging document, the terms of a plea agreement or transcript of coll oquy between judge and defendant in which the factual basis for the pl ea was confirmed by the defendant, or to some comparable judicial recordof this information. Shepard , 544 U.S. at 26.-14- Section 709.12 of the Iowa Code is de fined more broadly than the generic offense of abusive sexual c ontact. A conviction under subs ections 1 or 2 of § 709.12 would qualify as a prior conviction for abusive sexual contact subjecting Pierson to a § 2251(e) 25 year mandatory minimum se ntence and a § 4B1.5 enhancement. A conviction under subsections 3 or 4 would not, however. In determining whether the mandatory minimum and sentencing enhancem ent should apply, we must confine our review to the terms of the charging docum ent, the terms of a plea agreement, a colloquy between the judge and the defendant , or to a comparable record which indicates that the defendant admitted elem ents of the generic offense. Spudich , 510 F.3d at 837.

There is no plea agreement or transcri bed colloquy between the judge and the defendant in the record. Instead, the government relied at sentencing upon two exhibits. The first is the trial informa tion (part of which includes a complaint and judgment entry). The second is the final disposition report (part of which includes witness summaries). The trial information qualifies as a charging document under Shepardand Spudich . While the final disposition report may qualify as a comparable judicial record under Shepardand Spudich , we need not decide that issue since the trial information is sufficient for our inquiry.

The trial information indicates that Pierson was accused of indecent contact with a child in violation of § 709.12, ba sed upon the allegati on that the defendant "fondle[d] and/or touch[ed] the breast of a child for the purpose of arousing or satisfying his sexual desires." Because this charging document narrowed an over inclusive Iowa statute, Sheparddid not require the government to produce further support. The charging document is suffi cient evidence to support a finding that Pierson was convicted of the generic offens e. See United States v. Vasquez-Garcia , 449 F.3d 870, 873 (8th Cir. 2006). We conclude that Piers on's prior conviction is a qualifying predicate offense for the purpose of applying both the § 4B1.5 enhancement for repeat and dangerous offenders and the mandatory minimum-15- sentence required under 18 U.S.C. § 2251(e) for offenders with a qualifying prior conviction under state law.

V.

Accordingly, we affirm Pierson's convictions and sentence.

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