IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-31083

consolidated with 16-31181

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee 

v. 

MARK ANTHONY THOMPSON, 

 Defendant - Appellant 

Appeals from the United States District Court 

for the Western District of Louisiana 

USDC No. 2:14-CR-74-1 

Before STEWART, Chief Judge, and JONES and CLEMENT, Circuit Judges. 

PER CURIAM:*

INTRODUCTION 

The defendant appeals his conviction for attempting to use a child to 

produce a visual depiction of sexually explicit conduct and attempting to entice 

a minor to engage in criminal sexual activity. He raises a host of issues on 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

September 14, 2017

Lyle W. Cayce

Clerk

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appeal. For the reasons articulated below, we AFFIRM the judgment of the 

district court. 

BACKGROUND 

In February 2013, Defendant-Appellant Mark Thompson and Rosalie 

Dornellas met at a casino in New Orleans and began an extramarital affair. 

Because Thompson’s job involved frequent travel, the majority of Thompson 

and Dornellas’s time was spent communicating through different platforms 

like text message, telephone, instant message, Skype, Viber, and video-chat. 

Thompson frequently discussed with Dornellas his interest in sex with 

minor children. He repeatedly asked Dornellas for a naked picture of her nineyear-old daughter, see, e.g., and on multiple occasions expressed his desire to 

have sex with her daughter. Dornellas sent Thompson pictures of her daughter

wearing underwear. In response, Thompson stated that her daughter was “a 

beautiful little whore. When I [have sex with] her it will be like [having sex 

with] you when you were her age because she looks so much like you.” 

Thompson asked Dornellas if she could let him come to the house, introduce 

him to her daughter, and let him have sex with Dornellas and then “go and 

talk to [her daughter] in her room knowing I would talk to her about [having 

sex] because you want her to learn about sex so she can become a whore like 

us.” After Thompson had expressed sexual interest in her daughter, on one 

occasion, Dornellas allowed Thompson to speak to her daughter on the phone, 

though the content of their conversation was not sexual. 

Thompson continued to ask Dornellas for more graphic pictures of her 

daughter, including pictures of her genitals. Dornellas sent him a photo of 

Dornellas’s underwear and he praised the clarity of the photo and stated “it’s 

how I would like for the pic of [your daughter’s vagina] to look.” In December 

2013, Dornellas sent him a cell phone video of her daughter sleeping naked, 

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but covered by a blanket. But he became upset because the blanket covered 

her genitals. 

The next day, upon discovering the videos and text messages between 

Dornellas and Thompson, Dornellas’s daughter gave her mother’s cell phone to 

her father, who notified the authorities. Within a few days, Detective Joshua 

Stanford from the police department interviewed Dornellas regarding the 

pictures. Dornellas communicated to Detective Stanford that her 

conversations with Thompson were mere “fantasy.” 

In April 2014, a grand jury charged Thompson and Dornellas with one 

count of attempting to use a child to produce a visual depiction of sexually 

explicit conduct in violation of 18 U.S.C. § 2251(a), and additionally charged 

Thompson with one count of attempting to entice a minor to engage in criminal 

sexual activity, in violation of 18 U.S.C. § 2242(b). On June 2, 2014, Dornellas 

met with a psychologist, Dr. Margot Hasha, and reiterated that she believed 

Thompson only fantasized about having sex with her daughter, but would not 

actually act upon it. Dr. Hasha created a medical report based on their 

discussion and noted this statement. Dr. Hasha found that Dornellas exhibited 

symptoms of major depression and PTSD, and she had “difficulty 

understanding concepts and exhibited a level consistent with the cognitive 

development of a 6 or 7 year old, meaning that she could only comprehend and 

explain things in a very concrete way.” In August, Dornellas pled guilty to the 

§ 2251(a) count and agreed to assist the government in its case against 

Thompson. 

At his trial, Thompson claimed that he fantasized about having sex with 

Dornellas’s daughter, but would not have acted on that fantasy. Dornellas 

testified against Thompson and opined that Thompson would have had sex 

with her daughter if she had permitted it. She testified that she had previously 

attempted to “cover” for Thompson with Detective Stanford because she loved 

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him. Thompson extensively cross-examined Dornellas on this statement and 

her former statement to Detective Stanford. Nevertheless, Thompson was 

ultimately convicted on both counts. He was sentenced to concurrent 360 

month terms of imprisonment on both counts, followed by 10 years of 

supervised release. The district court denied Thompson’s motion for a new 

trial. 

DISCUSSION 

Thompson raises several issues on appeal. He challenges the district 

court’s denial of his motion for a new trial, asserts Brady, Napue, and Giglio

claims, challenges the district court’s exclusion of expert testimony and the 

sufficiency of the evidence to support his convictions, and claims that the 

district court exhibited impermissible bias against him. 

A. Motion for New Trial 

Thompson contends that his constitutional rights were violated when the 

district court did not admit into evidence Dr. Hasha’s medical report and when

the government allowed Dornellas to testify contrary to her previous 

statements made to Detective Stanford and Dr. Hasha. Thompson asserts that 

Dr. Hasha’s medical report should have been admitted because it includes 

information on Dornellas’s mental health that would have undermined her 

credibility. He also asserts that because her statements to Dr. Hasha and 

Detective Stanford, that she thought Thompson was only fantasizing about 

having sex with her daughter, were exculpatory, her contrary testimony at 

trial violated the government’s duties under Napue and Brady. Thompson 

argues that he is entitled to a new trial. 

We review the district court’s denial of a motion for a new trial for abuse 

of discretion. United States v. Bowler, 252 F.3d 741, 747 (5th Cir. 2001). 

“Motions for new trial based on newly discovered evidence are disfavored and 

reviewed with great caution.” United States v. Wall, 389 F.3d 457, 467 (5th 

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Cir. 2004) (internal quotations omitted). To obtain a new trial based on newly 

discovered evidence, a defendant must prove: “(1) the evidence is newly 

discovered and was unknown to the defendant at the time of trial; (2) the 

failure to detect the evidence was not due to a lack of diligence by the 

defendant; (3) the evidence is not merely cumulative or impeaching; (4) the 

evidence is material; and (5) the evidence if introduced at a new trial would 

probably produce an acquittal.” Id. Dr. Hasha’s medical report was not newly 

discovered evidence because Thompson was aware of the report at the time of 

trial. Indeed, Thompson filed a motion to compel production of Dornellas’s 

mental health records before trial, and during trial the district court denied 

the motion. 

Thompson is also not entitled to a new trial under Napue or Brady. A 

new trial based on Napue is proper only if the defendant demonstrates that 

(1) the testimony was actually false; (2) the testimony was material; and 

(3) the prosecution knew that the testimony was false. United States v. 

Stanford, 823 F.3d 814, 838–39 (5th Cir. 2016); United States v. Webster, 

392 F.3d 787, 801 (5th Cir. 2004). Thompson has not demonstrated that 

Dornellas’s testimony at trial was false. Dornellas’s communications with 

Detective Stanford and Dr. Hasha do not make her later incriminating 

testimony false, since she had a motivation to cover for Thompson before she 

pled guilty. Thompson’s explicit text messages to Dornellas also corroborate 

her trial testimony that this was not merely his fantasy. Thompson therefore 

has failed to establish that Dornellas’s testimony was actually false in violation 

of Napue. 

A Brady violation occurs when the government suppresses evidence 

“favorable to an accused upon request . . . where the evidence is material either 

to guilt or to punishment.” Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 

1197 (1963). Evidence is material only when there is a “reasonable probability”

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that the outcome of the trial would have been different if the evidence had been 

disclosed to the defense. United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 

3375, 3383 (1985). Whether evidence is material “depends almost entirely on 

the value of the evidence relative to the other evidence mustered by the state.” 

United States v. Sipe, 388 F.3d 471, 478 (5th Cir. 2004). Because the district 

court reviewed Dr. Hasha’s report in camera, we review the potential Brady

material only for clear error. United States v. Brown, 650 F.3d 581, 589 (5th 

Cir. 2011). A district court’s finding is clearly erroneous when, viewing all of 

the evidence, we are left with a “definite and firm conviction that a mistake 

has been committed.” Id. (internal quotations omitted). 

Thompson has not shown that the district court clearly erred in 

excluding Dornellas’s mental health report, nor do we have a firm conviction 

that Dornellas’s statement to Dr. Hasha would have changed the outcome of 

the trial. In arriving at its guilty verdict, the jury relied on voluminous 

additional evidence including texts from Thompson, not solely the testimony of 

Dornellas. See Sipe, 388 F.3d at 478 (“When the testimony of the witness who 

might have been impeached by the undisclosed evidence is strongly 

corroborated by additional evidence supporting a guilty verdict, the 

undisclosed evidence generally is not found to be material.”). Further, for 

witnesses like Dornellas, “whose mental history is less severe, district courts 

are permitted greater latitude in excluding records.” United States v. Jimenez, 

256 F.3d 330, 344 (5th Cir. 2001). Accordingly, the new trial motion was 

properly denied.

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B. Plea Agreement 

Thompson contends that the government misled the jury in allowing 

Dornellas to testify, without clarification, that she was facing at least 15 years 

in prison, despite a potential lesser sentence in her plea agreement. Thompson 

asserts that the government’s failure to clarify her plea deal constitutes a 

violation of Napue, Brady, and Giglio. Id. Because Thompson did not raise 

this argument in the district court, we review it for plain error. See United 

States v. Williams, 821 F.3d 656, 657 (5th Cir. 2016); United States v. 

Scroggins, 379 F.3d 233, 258 (5th Cir. 2004), cert. granted, judgment vacated

on other grounds, 543 U.S. 1112, 125 S. Ct. 1062, 160 L. Ed. 2d 1049 (2005). 

To demonstrate plain error, (1) there must be an error, (2) that is plain, and 

(3) that affects substantial rights. United States v. Serna-Villarreal, 352 F.3d 

225, 231 (5th Cir. 2003). The error must also seriously affect the fairness, 

integrity, or public reputation of judicial proceedings. Id. 

The government cannot knowingly present or fail to correct false 

testimony. Giglio v. United States, 405 U.S. 150, 153, 92 S. Ct. 763 (1972);

Napue v. Illinois, 360 U.S. 264, 271, 79 S. Ct. 1173 (1959). To prove a due 

process violation, the appellant must demonstrate (1) false testimony from the 

witness (2) that the government knew was false and (3) that is material. United 

States v. Mason, 293 F.3d 826, 828 (5th Cir. 2002). The government also cannot 

suppress material impeachment evidence. Brady, 373 U.S. at 87, 83 S. Ct. at

1197.

At trial the government stipulated that under the plea agreement, it 

could file a motion under 18 U.S.C. § 3553(e) to request a sentence below the 

statutory minimum. The government also entered Dornellas’s plea agreement 

into evidence. The government did not suppress or misrepresent the terms of 

the plea agreement. The district court therefore did not err, much less, plainly 

err. 

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Thompson next asserts that the cumulative effect of the government’s 

alleged misrepresentations of Dornellas’s plea agreement, Dornellas’s 

excluded statement regarding Thompson’s fantasy, and the district court’s 

failure to admit the medical report, constitutes a due process violation entitling 

Thompson to a new trial. Since none of these arguments establishes a due 

process violation, their net effect similarly does not create a reasonable 

probability that the outcome of the trial would have been different if the 

evidence had been disclosed. See Kyles v. Whitley, 514 U.S. 419, 438, 115 S. Ct. 

1555, 1568 (1995). 

C. Expert Testimony

Thompson contends that the district court abused its discretion when it 

excluded Dr. Jennifer Weeks’s expert testimony and report on sexual 

addiction. The district court reasoned that Dr. Weeks’s research had not been 

subject to sufficient peer review. 

This court reviews the district court’s exclusion of expert testimony for 

abuse of discretion. In re Complaint of C.F. Bean L.L.C., 841 F.3d 365, 369 

(5th Cir. 2016). A district court has “wide latitude in determining the 

admissibility of expert testimony,” and its “decision will not be disturbed on 

appeal unless manifestly erroneous.” Id. (internal quotations and citations 

omitted). Under Daubert, the “subject of the expert’s testimony must be 

‘scientific []knowledge.’” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 

589-90, 113 S. Ct. 2786, 2795 (1993). This implies a “grounding in the methods 

and procedures of science” and “more than subjective belief or unsupported 

speculation.” Id at 590. For an assertion to qualify as scientific knowledge, 

“an inference or assertion must be derived by the scientific method.” Id. There 

must be a “standard for evidentiary reliability” or a “process for proposing and 

refining theoretical explanations.” Id. 

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Thompson has not convinced us that the district court improperly 

excluded Dr. Weeks’s testimony. Dr. Weeks is a licensed counselor who 

specializes in sexual addiction. She assessed Thompson and created a report, 

which concluded that Thompson’s behavior was more consistent with fantasy 

than grooming behavior. During the Daubert hearing, Dr. Weeks testified that 

she performed a sexual addiction screening test that revealed Thompson might 

be hypersexual. But Dr. Weeks acknowledged that the screening test is not 

well studied and does not have a validity scale. The self-reporting test enables 

subjects to over-report or under-report. The error rate of the test could place 

Thompson in a parameter in which there is no basis to conclude he is sexually 

addicted, or could place him within a parameter in which there is a high 

likelihood that he is a sexual addict. It is also revealing that sexual addiction 

was removed from The Diagnostic and Statistical Manual of Mental Disorders 

(“DSM”)’s list of disorders.1 Unlike other conditions, the updated DSM-5 has 

not even listed sexual addiction as a disorder warranting further study for 

potential inclusion in the DSM. Thompson has therefore not shown that 

Dr. Weeks’s testimony establishes a standard of evidentiary reliability or is 

grounded in the methods and procedures of science. Daubert, 509 U.S. at 590, 

113 S. Ct. at 2795. The district court did not abuse its discretion. 

 

1 The DSM is published by the American Psychiatric Association and is the “guiding 

force” used by clinicians and psychiatrists to diagnose psychiatric illnesses. The DSM-5 is 

the most updated version of the DSM.

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D. Sufficiency of the Evidence 

Thompson argues that the evidence is insufficient to sustain both of his 

convictions. Thompson preserved his challenge to the sufficiency of the 

evidence by moving for acquittal under Fed. R. Crim. Proc. 29 at the conclusion 

of the government’s case and again at the close of all evidence. Our review is 

therefore de novo. United States v. Ongaga, 820 F.3d 152, 157 (5th Cir. 2016). 

This court reviews the sufficiency of the evidence in the light most favorable to 

the government, with all reasonable inferences drawn in support of the verdict. 

Id. “We will affirm the jury’s verdict if we conclude that a rational trier of fact 

could have found the essential elements of the crime beyond a reasonable 

doubt.” Id. 

Thompson was convicted of attempting to use a child to produce a visual 

depiction of sexually explicit conduct in violation of 18 U.S.C. § 2251(a) and 

attempting to entice a minor to engage in criminal sexual activity in violation 

of 18 U.S.C. § 2242(b). “To prove attempt, the government must demonstrate 

that the defendant (1) acted with the culpability required to commit the 

underlying substantive offense, and (2) took a substantial step toward its 

commission.” United States v. Barlow, 568 F.3d 215, 219 (5th Cir. 2009). This 

court has defined a “substantial step” as “conduct which strongly corroborates 

the firmness of [the] defendant’s criminal attempt.” Id. 

To prove a violation of § 2251(a), the government must show that 

Thompson employed, used, persuaded, induced, enticed, or coerced a minor to 

engage in sexually explicit conduct for the purpose of producing a visual 

depiction of such conduct. 18 U.S.C. § 2251(a); United States v. Terrell, 

700 F.3d 755, 760 (5th Cir. 2012). The government correctly notes that 

Thompson fails to discuss or cite to any trial evidence in support of his 

contention that the evidence supporting this crime was insufficient. 

Consequently, there is no basis on which to question whether a reasonable trier 

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of fact could find that the evidence established Thompson’s guilt beyond a 

reasonable doubt. Moreover, viewing the evidence in the light most favorable

to the government leaves little doubt of its sufficiency to support his conviction 

for attempted use of a child to produce a sexually explicit visual depiction. 

To prove a violation of § 2242(b), the government must prove beyond a 

reasonable doubt that Thompson intended to “persuade[ ], induce[ ], entice[ ], 

or coerce[ ]” Dornellas’s daughter to engage in any sexual activity. Barlow, 

568 F.3d at 219. Thompson claims that he only engaged in obscene speech. 

But Thompson described to Dornellas his desire to have sex with her 

daughter and repeatedly asked her to send him a naked picture of her 

daughter, which he ultimately received. He also discussed coming over to 

Dornellas’s house and talking to her daughter about having sex, “so that she 

can become a whore like us.” On one occasion, he even spoke with her daughter

on the phone after he had told Dornellas he was interested in having sex with 

her daughter. This was all done in an attempt to entice Dornellas to allow him 

to have sex with her daughter. All of these actions support that Thompson not 

only intended to engage in sexual acts with a minor, but also took substantial 

steps toward committing this offense. See United States v. Broussard, 669 F.3d

537, at 547 (upholding a conviction under § 2242(b) where the defendant 

asserted he was engaging in “all fantasy” and “just talk”). 

E. Judicial Bias 

Lastly Thompson contends that the district judge exhibited bias when 

she abruptly took recesses at various points throughout the trial and 

commented that certain lines of questioning were “uncomfortable.” Thompson 

also complains of the judge’s statements during Dornellas’s sentencing hearing 

that this case was more disturbing than a case she had formerly prosecuted 

involving the killing of a child. The district court denied Thompson’s motion 

for recusal. 

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This court reviews denial of a motion for recusal for abuse of discretion. 

Andrade v. Chojnacki, 338 F.3d 448, 454 (5th Cir. 2003). Judicial opinions “on 

the basis of facts introduced or events occurring in the course of the current 

proceedings, or of prior proceedings, do not constitute a basis for a bias or 

partiality motion unless they display a deep-seated favoritism or antagonism 

that would make fair judgment impossible.” Liteky v. United States, 510 U.S. 

540, 555, 114 S. Ct. 1147, 1157 (1994). Judicial remarks that are critical, 

disapproving of, or even hostile, normally do not support a bias or partiality 

charge. Id. 

The judge’s conduct did not demonstrate bias or partiality. The district 

court’s remarks during trial that the subject matter is uncomfortable does not 

evince bias. Likewise, the judge’s expression of her opinion that this case is 

more disturbing than a former case was not stated in front of the jury, and 

therefore had no impact on the guilty verdict. Moreover, the district court is 

permitted to express critical or disapproving remarks. See id. Finally abruptly 

calling for a recess does not imply a deep-seated antagonism. See id. 

CONCLUSION 

Appellant’s conviction and sentence are AFFIRMED. 

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