United States Court of Appeals

For the Eighth Circuit 

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No. 22-1558

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United States of America

 Plaintiff - Appellee

v.

Christopher Covey Dale Truax, also known as Christopher Dale Sinchak

 Defendant - Appellant

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Appeal from United States District Court 

for the District of South Dakota - Western

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Submitted: December 16, 2022

Filed: April 4, 2023

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Before LOKEN, ERICKSON, and KOBES, Circuit Judges. 

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ERICKSON, Circuit Judge.

A jury convicted Christopher Truax of attempted enticement of a minor using 

the internet, in violation of 18 U.S.C. § 2422(b). Truax appeals, asserting three 

claims: the district court1

 (1) abused its discretion when it allowed the prosecution 

1

The Honorable Jeffrey L. Viken, United States District Judge for the District 

of South Dakota.
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to impeach him using evidence not disclosed prior to trial; (2) committed plain error 

when it allowed the prosecutor to attack his credibility during rebuttal closing 

argument; and (3) imposed a substantively unreasonable sentence. We affirm. 

I. BACKGROUND

During the summer of 2020, law enforcement conducted an undercover 

operation targeting child exploitation during an annual motorcycle rally held in 

Sturgis, South Dakota. As part of the operation, Rapid City Police Detective Elliott 

Harding posed as “Cassie Mae” on Tinder, an internet dating app. The profile 

created by Detective Harding described Cassie Mae as 19 years old. On August 11, 

2020, Truax messaged Cassie Mae through Tinder, and the pair eventually moved 

their discussion to text messages outside the app. Between August 11 and August 

13, Cassie Mae and Truax shared a series of photographs and messages, including a 

message in which Cassie Mae informed Truax that she was 13 years old and had 

misrepresented her age on her Tinder profile. Truax told Cassie Mae that he was

“okay with [her] age.” 

Ultimately, Truax agreed to pick Cassie Mae up at a middle school, describing 

in detail the sexual contact he intended to have with her. When Truax arrived in the 

vicinity of the school on August 13 at the agreed upon time, he was arrested. A 

search of Truax’s van revealed a handgun, items used during sexual activity, and 

Truax’s cell phone containing the messages he exchanged with Cassie Mae. Truax 

later explained to the officers that he lived in his van. 

 

Truax was indicted on two charges: (1) attempted enticement of a minor using 

the internet, in violation of 18 U.S.C. § 2422(b); and (2) possession of a firearm by 

a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The case 

proceeded to a jury trial on the enticement count and Truax chose to testify. Truax 

testified that he was depressed and suicidal at the time of his arrest, that he knew 

officers conducted an annual undercover operation during Rally Week, and that he 

believed Cassie Mae was an undercover agent when he texted her. He asserted that
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his conversations with the agent were intended to set up a suicide by cop. During

direct examination, defense counsel observed Truax having a “physical reaction.” 

Following a short break, defense counsel sought and was granted an overnight recess 

to determine whether Truax could continue testifying. 

Truax’s testimony resumed the following day. On cross examination, the 

prosecutor asked Truax whether he remembered a jail phone call with his aunt on 

October 2, 2021, which was approximately one month prior to trial. The defense 

objected and a discussion was held at sidebar. The defense claimed surprise, 

asserting the prosecution had failed to disclose any phone calls during discovery. In 

response, the prosecutor explained the evidence had been disclosed that morning 

because she had only learned of the phone call the night before when an officer told 

her that Truax had a phone conversation with his aunt asking for three books. The 

books included Win Your Case: How to Present, Persuade, and Prevail-Every Place, 

Every Time by Gerry Spence (the “Spence Book”). The prosecutor indicated that jail 

records showed the Spence Book was received by Truax on October 11. 

The prosecution concluded the Spence Book was appropriate for 

impeachment because it taught that to prevail at trial, a defendant must make himself 

vulnerable, talk about his fears, and generally use theatrics to persuade the jurors. 

The prosecutor argued the book was relevant because she believed Truax was 

following the strategies outlined in the book. The district court ruled that using 

limited excerpts from the Spence Book was appropriate for impeachment if Truax 

had received and read the book. No questioning was allowed on the phone call. 

When cross examination resumed, Truax admitted receiving and reading the Spence 

Book, testifying that he had read it “cover to cover,” including the chapter about 

preparing for cross examination. The prosecutor recounted excerpts from the book, 

some of which Truax recalled and some of which he did not. 

Truax’s claim that he arrived at the meeting location planning to commit 

suicide by cop was called into question by Special Agent Brent Gromer’s testimony. 

Agent Gromer testified that Truax’s claim of suicidal intention was inconsistent with 
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his behavior at the time of arrest. Agent Gromer believed that Truax’s driving 

behavior suggested he was engaging in “counter surveillance” to determine whether 

any police were present at the scene before parking his van. In addition, at the time 

of arrest, Truax asked law enforcement not to point a firearm at him. 

During closing argument, the prosecutor discounted Truax’s claim that he had 

a suicidal intention when he drove to meet Cassie Mae. The prosecutor argued the 

only evidence of depression was from Truax’s own testimony, and Truax’s actions 

at the scene did not demonstrate a person who intended to commit suicide by cop. 

The prosecutor asked the jury to consider each witness’s motive for testifying and 

whether Truax’s testimony was “theatrics.” On rebuttal, the prosecutor stated, “[O]n 

the stand, having been coached by Gerry Spence, [Truax] knew exactly how to try 

to play on your emotions. Voice fear. Cry. Show them your heart. It’s a pounding 

heart. Ladies and gentlemen, that was a show. That wasn’t fact. That was theatrics 

to play on your emotions.” 

The jury found Truax guilty. At sentencing, the district court calculated an

adjusted Sentencing Guidelines range of 135 to 168 months. After considering the

18 U.S.C. § 3553(a) factors and noting that Truax had a prior conviction for a sex 

offense involving a child—which suggested a risk of recidivism—and Truax’s 

“roving van” lifestyle that would complicate supervised release, the district court 

imposed a 168-month term of imprisonment and lifetime supervision.

II. ANALYSIS

Truax asserts, over his objections at trial, the district court erred by allowing 

the government to use the Spence Book to impeach him because it was not timely 

disclosed during discovery. We review a decision declining to exclude evidence for 

a violation of Rule 16 of the Federal Rules of Criminal Procedure for abuse of 

discretion, and the court’s subsidiary factual findings for clear error. United States 

v. Crumble, 965 F.3d 642, 646 (8th Cir. 2020). 
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While the parties spend much time arguing the parameters of Rule 16(a), that

issue is immaterial. At no point did the district court receive any recorded statement 

of the defendant. The only testimony in the record is that Truax was asked if he had 

a phone conversation with his aunt on October 2, 2021. Truax stated he had no 

specific recollection of the call, at which time the defense objected. While the 

government inquired about the phone call, neither it nor its contents were ever 

presented to the jury. No statement by Truax was ever elicited or even sought to be 

elicited. Rather, the contentious issue involves a failure to disclose, before trial, the 

Spence Book and whether it was appropriate for impeachment purposes. Here, the 

government only became aware of the Spence Book the evening before its disclosure 

when an officer told the prosecutor that Truax had received a copy of it while in jail

awaiting trial. Because the Spence Book was in the possession and knowledge of 

Truax, the government was under no burden to produce it—it already being in 

Truax’s personal possession.

The district court’s ruling prohibited any further discussion about recorded 

phone calls but allowed cross examination on the Spence Book if the prosecution 

established Truax had received the book and read it. After the proper foundation 

was laid, the examination, with excerpts from the Spence Book, was appropriate for 

use as impeachment. But, even if the Spence Book had not been in Truax’s 

possession, the prosecution did not know of the book’s relevance until Truax took 

the stand and testified. The book was then promptly disclosed by the prosecution as 

soon as its relevance was discovered. There is no evidence in this record of an 

intentional delay or bad faith by the government. Under these circumstances, the 

district court did not abuse its discretion in allowing the limited inquiries. 

 

Even if the evidence should have been excluded, any error was harmless 

because it neither affected Truax’s substantial rights nor had more than a slight 

influence on the verdict. See United States v. Eason, 829 F.3d 633, 638 (8th Cir. 

2016). Attempted enticement of a minor requires that Truax knowingly use a means 

or facility of interstate or foreign commerce to persuade, induce, or entice an 

individual under age 18 to engage in sexual activity, knowing the individual was 
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under 18, and if the sexual activity had occurred, Truax could have been charged 

with a criminal offense under South Dakota law. See 18 U.S.C. § 2422(b). The 

uncontroverted evidence established that Truax used his cell phone to send Tinder 

and text messages to what he believed was an underage girl. Truax’s presence in the 

vicinity of the pre-arranged meeting place, the graphic nature of the messages, and 

the items found in Truax’s van, demonstrated that he intended to engage in sexual 

activity with a girl he understood to be 13 years old. Without the Spence Book 

evidence, there was abundant evidence from which the jury could conclude beyond 

a reasonable doubt that Truax committed the offense of attempted enticement of a 

minor using the internet. 

Truax next argues the district court erred when it permitted the prosecutor to 

state during rebuttal closing argument that Truax’s testimony was uncorroborated

and not based on facts, and that his behavior while testifying was a “show” and 

“theatrics.” Under plain error review, the burden rests on Truax to show there is a 

reasonable probability the outcome would have been different in the absence of the 

alleged error. United States v. Darden, 688 F.3d 382, 388 (8th Cir. 2012). Reversal 

is appropriate only if: “(1) the prosecutor’s remarks were improper, and (2) such 

remarks prejudiced the defendant’s rights in obtaining a fair trial.” United States v. 

Herbst, 668 F.3d 580, 586 (8th Cir. 2012) (quotation omitted). 

While a prosecutor may not express a personal opinion about a defendant’s 

credibility, it is not improper for a prosecutor to suggest the jury should not believe 

a defendant’s testimony, so long as the suggestion is based on evidence contrary to 

the defendant’s testimony. See United States v. Jones, 865 F.2d 188, 191 (8th Cir. 

1989) (noting it is permissible for a prosecutor to make arguments that fairly 

characterize uncontroverted evidence). Here, the prosecutor argued that Agent 

Gromer’s testimony refuted Truax’s claim that his conduct was an attempt to commit 

suicide by cop. That said, the prosecutor’s florid language in the rebuttal argument 

presents a close question related to propriety. Even assuming the argument was 

improper, there is no reasonable probability that Truax would have been acquitted 

without the statements. Given the overwhelming evidence against Truax, he cannot 
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show the remarks were clearly injurious, or that prejudice resulted. Moses v. Union 

Pacific R.R., 64 F.3d 413, 417 (8th Cir. 1995). 

Finally, Truax challenges the substantive reasonableness of his sentence, 

which we review for abuse of discretion. United States v. Staten, 990 F.3d 631, 636 

(8th Cir. 2021). After considering and weighing the § 3553(a) factors, the district 

court imposed a within-Guidelines sentence, which is presumed to be reasonable. 

See United States v. Deegan, 605 F.3d 625, 634 (8th Cir. 2010). Truax believes the 

district court should have weighed the factors differently, but this type of 

disagreement is not a ground for reversal, particularly when, as here, the district 

court gave a “reasoned basis” for the sentence imposed. United States v. Bridges, 

569 F.3d 374, 379 (8th Cir. 2009) (citations omitted). 

III. CONCLUSION

For the foregoing reasons, we affirm the judgment of the district court. 

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