                    United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                ________________

                            Nos. 00-3391/3396, 01-1010
                                ________________

United States of America,                 *
                                          *
      Cross-Appellant/Appellee,           *
                                          *      Appeal from the United States
      v.                                  *      District Court for the
                                          *      Eastern District of Arkansas.
Lonnie Joseph Parker,                     *
                                          *         [PUBLISHED]
      Appellant/Cross-Appellee.           *

                                ________________

                                Submitted: May 15, 2001
                                    Filed: October 9, 2001
                                ________________

Before WOLLMAN, Chief Judge, HANSEN, Circuit Judge, and SCHREIER,1 District
      Judge.
                          ________________

HANSEN, Circuit Judge.

      Lonnie Joseph Parker was convicted of possessing child pornography in violation
of 18 U.S.C. § 2252(a)(4)(B) (1994 & Supp. IV 1998), and was sentenced to 37
months imprisonment. Parker filed a motion for new trial five days before he was
scheduled to report to prison. Parker moved for a new trial on the basis of newly


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       The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota, sitting by designation.
discovered evidence and an allegation that the government had failed to disclose
allegedly exculpatory documents relating to Parker's participation in a police
undercover operation in Minnesota. The district court denied Parker's motion,
concluding that the documents were neither material nor exculpatory, and Parker failed
to establish that the new evidence would result in an acquittal. Parker appeals both his
conviction and the denial of his motion for a new trial. The government crossappeals,
arguing that the district court erred by refusing to enhance Parker's sentence based upon
the sadistic nature of the pictures. See United States Sentencing Commission,
Guidelines Manual, § 2G2.2(b)(3) (2000). We affirm the appeal but reverse on the
cross-appeal.

                                           I.

      In 1997, Parker relocated from Minnesota to Little Rock, Arkansas, to begin his
medical residency at the University of Arkansas. Soon after his move, United States
Customs officials began investigating Parker as a recipient of images containing child
pornography. Customs officials were alerted to Parker's involvement with child
pornography through their investigation of an individual named Freddie Gravely who
resided in Michigan. Gravely had sent six pornographic images to an America Online
subscriber who was using the screen name "FUNWUN777." The subscriber was
Parker.

       Parker agreed to cooperate with Customs agents, and during a subsequent
interview, Parker informed the agents that his daughter had received the images while
visiting an Internet chat room, and that he had reported the incident to the FBI and the
National Center for Missing and Exploited Children (NCMEC). The Customs agents
were unable to substantiate Parker's assertion that he had contacted either agency.
Parker also told the agents that he was told to download and print out the images and
send them to both agencies. Parker did not send copies of the images to either agency.
Parker offered to provide Customs agents with the name of the FBI agent who

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instructed him to download the pornographic images, but Parker never followed
through with his offer.

       Parker invited the Customs agents to his home and executed a consent form,
authorizing their search of his home for child pornography. At the agents' request,
Parker copied the pornographic images stored on his computer’s hard drive onto
computer diskettes. The extent of Parker’s collection was voluminous. Agents seized
the disks and Parker’s computer. The next day, Parker requested to meet again with
Customs agents. Parker explained to the agents that contrary to what he had reported
earlier, he--and not his daughter--had received the child pornography. He stated that
he had printed out the images that he received and sent them to the FBI and the
NCMEC. Parker stated that he voluntarily continued to receive pornographic images
in an attempt to compile a list of suspect pornographers to assist law enforcement
officials. When asked by Customs agents for his list of suspects, however, he was
unable to provide it. Parker also informed the Customs agents of a previous episode
that occurred while he was a fourth-year medical student at the Mayo Clinic, in
Rochester, Minnesota, when he received a message from an individual in an Internet
chat room. This individual offered to allow Parker to have sex with the man’s
adolescent daughter, as well as providing pictures of the interlude in exchange for a fee.
Parker was told to meet the girl at a Minneapolis-area motel. Parker reported this
solicitation to the FBI. FBI agents investigated Parker's complaint and initiated a
surveillance operation at the motel; however, neither the individual nor his daughter
ever materialized at the motel.

       Parker was charged in a five count indictment: three counts of receiving child
pornography, one count of possessing child pornography, and one count of criminal
forfeiture. Parker filed a motion indicating that he intended to assert a public authority
defense because, he contended, he was assisting law enforcement officials in their
attempt to identify and apprehend persons sending him pornographic material to his
Internet account. At trial, however, Parker presented no evidence on his own behalf.

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Thus at the close of the trial, the district court refused to instruct the jury on Parker's
reliance upon public authority, concluding the trial record contained insufficient
evidence to warrant such an instruction. The jury found Parker guilty of possessing
child pornography, and in light of the conviction, Parker conceded the criminal
forfeiture. At sentencing, the government sought a four-level enhancement under the
Sentencing Guidelines § 2G2.2(b)(3) based upon the sadistic nature of the pictures
Parker possessed, which the district court denied. The district court sentenced Parker
to 37 months imprisonment.

       In support of a subsequent motion for new trial, Parker raised two arguments: (1)
that the government failed to turn over exculpatory documents which were linked to
Parker’s involvement with the FBI in Minnesota, in violation of Brady v. Maryland,
373 U.S. 83 (1963); and (2) that newly discovered evidence warranted a new trial. The
district court denied the motion. The court concluded that the evidence was not
exculpatory, presentation of the evidence would not have resulted in an acquittal, and
the evidence did not satisfy the requirement of Federal Rule of Criminal Procedure 33.
Parker appeals both his conviction and the district court's denial of his motion for a new
trial. The government crossappeals the district court's refusal to impose a four-level
sentence enhancement under USSG § 2G2.2(b)(3).

                                            II.

                             A. Public Authority Defense

      Parker first contends that the district court erred by refusing to instruct the jury
on his defense that he acted under public authority when downloading child
pornography to his home computer. We disagree. Whether there is sufficient evidence
to submit an affirmative defense instruction to a jury is a question of law and reviewed
de novo. United States v. Jankowski, 194 F.3d 878, 882 (8th Cir. 1999). The public
authority defense requires a defendant to show that he was engaged by a government

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official to participate in a covert activity. United States v. Achter, 52 F.3d 753, 755
(8th Cir. 1995). However,

      [t]he defendant does not have to testify or even offer any evidence; the
      basis for the defendant’s theory may derive from the testimony of
      government witnesses on direct or cross-examination. Finally, the
      evidence to support a theory of defense need not be overwhelming; a
      defendant is entitled to an instruction on a theory of defense even though
      the evidentiary basis for that theory is weak, inconsistent, or of doubtful
      credibility.

United States v. Scout, 112 F.3d 955, 960 (8th Cir. 1997) (internal quotations and
alterations omitted). Parker contends that the evidence that he alerted officials in
Minnesota to an individual who was offering the person's teenage daughter for sex was
sufficient evidence to warrant a public authority instruction regarding Parker's charged
activities in Arkansas. We fail to see any connection between his alleged assistance
in Minnesota and his later activities in Arkansas. Parker asserts that the evidence
demonstrated that an FBI agent had instructed him to download the pornographic
images and deliver them to the FBI office in Little Rock, Arkansas. Even construing
the evidence in the light most favorable to Parker, the evidence at trial directly
contradicted Parker's assertion. Law enforcement officials stated that Parker was
directed only to deliver the images he had already obtained and had stored on his
computer's hard drive to the FBI--a direction he subsequently ignored. There was no
evidence presented that Parker acted on the request or advice of a duly authorized law
enforcement official concerning his continued possession and accumulation of child
pornography in Arkansas. The evidence showed Parker was acting on his own; the FBI
officers in Arkansas never authorized Parker to download or possess child
pornography. In fact, the trial testimony revealed that a friend of Parker's, who is also
a law enforcement officer, warned Parker that possession of child pornography is
illegal. We conclude the district court was correct in declining to instruct the jury on
the defense of public authority.

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                              B. Entrapment by Estoppel

       Parker also argues that he was entitled to "exoneration" and that the district court
erred by failing to direct a verdict in his favor based upon the application of entrapment
by estoppel. Entrapment by estoppel arises when a government official tells a
defendant that certain conduct is legal, and the defendant commits what otherwise
would be a crime in reasonable reliance on the official representation. United States
v. Benning, 248 F.3d 772, 775 (8th Cir.), petition for cert. filed, No. 01-5434 (U.S. July
18, 2001). Parker failed to raise this issue before the district court, and as a result, we
review for plain error. We will reverse under plain error review only if the error
prejudices the party's substantial rights and would result in a miscarriage of justice if
left uncorrected. United States v. McNeil, 184 F.3d 770, 777 (8th Cir. 1999). "Plain
error review is extremely narrow and is limited to those errors which are so obvious or
otherwise flawed as to seriously undermine the fairness, integrity, or public reputation
of judicial proceedings." United States v. Beck, 250 F.3d 1163, 1166 (8th Cir. 2001).



       A review of the evidence shows that the trial court did not err in failing to direct
the verdict in Parker's favor premised upon entrapment by estoppel. Parker can point
to no evidence illustrating that he reasonably relied upon a law enforcement official's
assertion that possessing child pornography was legal or that any such assertion was
made to him. The evidence instead indicates that Parker was fully aware that his
possession of such materials was a crime. Furthermore, Parker failed to comply with
law enforcement officers' repeated instruction to deliver any previously obtained
material to the appropriate office. We refuse to recognize Parker's claim as a
cognizable error. See United States v. Long, 977 F.2d 1264, 1271 (8th Cir.1992)
(holding that entrapment by estoppel does not apply when a government official never
told the defendant that an illegal activity was permissible); cf. United States v.
Johnson, 988 F.2d 941, 945 (9th Cir. 1993) (declining to address appellant's entrapment
by estoppel argument because affirmative defense was not raised in the district court).

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                          C. Insufficient Evidence of Intent

       Parker next contends that the evidence was insufficient to establish that he
harbored any criminal intent. "[W]e examine the evidence in the light most favorable
to the verdict, giving the government the benefit of all reasonable inferences that may
logically be drawn from the evidence." United States v. Armstrong, 253 F.3d 335, 336
(8th Cir. 2001) (internal quotations omitted) (alternation in original). We will uphold
the jury's verdict provided that an interpretation of the evidence would allow a
reasonable juror to find the defendant guilty beyond a reasonable doubt. United States
v. Vig, 167 F.3d 443, 447 (8th Cir.), cert. denied, 528 U.S. 859 (1999). The jury may
base its verdict in whole or in part on circumstantial evidence. United States v. Smith,
104 F.3d 145, 147 (8th Cir. 1997). The jury convicted Parker for violating 18 U.S.C.
§ 2252(a)(4)(B) (1994 & Supp. IV 1998), which makes it a felony to

      knowingly possess[] 1 or more books, magazines, periodicals, films,
      video tapes, or other matter which contain any visual depiction that has
      been mailed, or has been shipped or transported in interstate or foreign
      commerce, or which was produced using materials which have been
      mailed or so shipped or transported, by any means including by computer,
      if--(i) the producing of such visual depiction involves the use of a minor
      engaging in sexually explicit conduct; and (ii) such visual depiction is of
      such conduct.

The Supreme Court determined that Congress intended the term "knowingly" to
"extend[ ] both to the sexually explicit nature of the material and to the age of the
performers." United States v. X-Citement Video, Inc., 513 U.S. 64, 78 (1994).

       Parker argues that his reason for possessing child pornography was an honorable
one--"to assist law enforcement in combating exploitation of children"--and therefore
a reasonable jury could have a reasonable doubt as to his criminal intent in possessing
the images. (Appellant's Br. at 21.) We find Parker's challenge unavailing, and the


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evidence adduced at trial belies his assertion. When Parker was questioned by
Customs agents in Arkansas about his receipt of pornographic images sent to his
computer by an individual in Michigan, Parker initially stated his daughter had
inadvertently received the images via an Internet chat room. When agents questioned
Parker as to why his daughter would be participating in an Internet chat between 2 and
4 a.m, Parker admitted that he was the one who received the images. Parker also told
agents he had reported the incident to both the FBI and NCMEC. Neither agency had
a record of Parker's report, however. Agents repeatedly told Parker to print out the
images that he had received and that were presently stored on his computer's hard drive
and deliver them to law enforcement officers, but Parker stated he did not have the time
to do this. Finally, Parker told agents that he knew it was illegal to transport child
pornography across state lines. The evidence viewed in the light most favorable to the
government clearly establishes that the jury was reasonable in its conclusion.

                         III. Denial of Motion for New Trial

        Parker asserts that the district court abused its discretion by denying his motion
for a new trial. In support of his motion, Parker argued that the government failed to
disclose exculpatory evidence as directed by Brady v. Maryland. He states that the
government was required to disclose a fax copy of a police report and cover sheet held
in its possession and sent from an FBI agent in Minnesota to a local police department
in Minnesota. The fax disclosed that Parker had contacted the FBI regarding a teenage
girl who was offered to him for sex by an Internet chat room participant. Parker
contends that this fax evinces that he was cooperating with the FBI in attempting to
apprehend the individual who made the offer, and this evidence was needed for him to
lay the foundation for his public authority defense and adequately cross-examine
government witnesses at trial. We review for an abuse of discretion the district court's
denial of a motion for new trial. United States v. Ryan, 153 F.3d 708, 711 (8th Cir.
1998) ("This standard also applies, where as here, a defendant seeks a new trial
premised upon a Brady claim."), cert. denied, 526 U.S. 1064 (1999).

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       Under Brady, the defendant must establish that (1) the evidence at issue is
material and favorable to the defendant; (2) the evidence was suppressed by the
government; and (3) the defendant was prejudiced by the suppression in that there is
"'a reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.'" Strickler v. Greene, 527 U.S. 263,
280 (1999) (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). The district
court found that any Brady violations by the government did not compromise Parker's
right to a fair trial. We agree with the district court that the documents were neither
material nor exculpatory to his charge of possessing child pornography in Arkansas.
Parker's contact with law enforcement in Minnesota was over a year prior to Customs
agents in Arkansas investigating him. The substance of the documents in no way
indicates that Parker was advised by law enforcement officers to assist with their
investigation in Minnesota. Moreover, this evidence could be viewed as inculpatory
because it shows that Parker had been involved with child pornography since 1996.
Thus, the government's nondisclosure of this evidence does not violate Brady, and the
district court did not abuse its discretion by denying the motion for new trial on this
ground.

       Parker also sought a new trial based upon newly discovered evidence--the same
fax copy of the Minnesota police report and cover sheet that are the subject of Parker's
Brady allegation. The district court may grant a motion for a new trial "if the interests
of justice so require." Fed. R. Crim. P. 33. A defendant seeking a new trial on the
ground of newly discovered evidence must prove four factors to prevail: (1) the
evidence must have been unknown or unavailable to the defendant at the time of trial;
(2) the defendant must have been duly diligent in attempting to uncover it; (3) the newly
discovered evidence must be material; and (4) the newly discovered evidence must be
such that its emergence probably will result in an acquittal upon retrial. United States
v. Zuazo, 243 F.3d 428, 431 (8th Cir. 2001). The district court denied Parker's motion,
concluding that there was no reasonable probability that the evidence in the fax would
lead to Parker's acquittal upon retrial in light of the extensive evidence against Parker.

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We are perplexed as to how Parker can claim that this is new evidence when he was
responsible for filing the report with the Minnesota police approximately three and a
half years prior to trial. Regardless, the information is not material to his activities in
Arkansas. The district court did not abuse its discretion in denying Parker's motion for
new trial.

                           IV. Government's Cross-Appeal

       The government in its cross-appeal argues that the district court erred by failing
to grant a four-level enhancement pursuant to USSG § 2G2.2(b)(3). Guidelines §
2G2.2(b)(3) provides that, "[i]f the offense involved material that portrays sadistic or
masochistic conduct or other depictions of violence, increase by 4 levels." We review
the district court's interpretation and application of the Sentencing Guidelines to the
facts de novo. United States v. Hampton, 260 F.3d 832, 837 (8th Cir. 2001). Like the
jury and the district court, we have been forced to view the images in this case in order
to determine the issues raised--a decidedly distasteful and depressing duty. The images
at issue depict the following acts (among others) being inflicted upon minor female
children: sexual penetration by a minor girl upon herself by using a large carrot, forced
oral sex, an adult male ejaculating into the face and open mouth of a crying baby, and
adult males standing over and urinating in the face of a female child.
       The Guidelines do not define the terms "sadistic," "masochistic" or "depictions
of violence." We therefore turn to the ordinary meaning of the terms to guide our
review. See Perrin v. United States, 444 U.S. 37, 42 (1979) ("A fundamental canon
of statutory construction is that, unless otherwise defined, words will be interpreted as
taking their ordinary, contemporary, common meaning."); United States v.
Martinez-Santos, 184 F.3d 196, 204 (2d Cir. 1999) (stating basic statutory construction
rules are used to interpret the Guidelines). Webster's Dictionary defines "violence" as
"exertion of any physical force so as to injure or abuse." Webster's Third New
International Dictionary 2554 (1986). Given the plain meaning of "violence," it is
difficult to imagine that the sexual penetration with a foreign object of a minor female

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would not qualify as "violence" even if self-inflicted. Webster's defines "sadism" as
"the infliction of pain upon a love object as a means of obtaining sexual release" (a
description that certainly fits the photograph of the crying baby), "delight in physical
or mental cruelty," and the use of "excessive cruelty." Id. at 1997-98. These
definitions make clear that the terms "violence" and "sadism," as ordinarily used, are
not limited to activity involving a rope, belt, whip, chains, or other instruments as the
district court would restrict it. We determine that when a pornographic image depicts
an adult male engaging in the sexual conduct of the nature we have here, the conduct
portrayed is sufficiently painful, coercive, abusive, and degrading to qualify as sadistic
or violent within the meaning of § 2G2.2(b)(3). See United States v. Turchen, 187 F.3d
735, 740 (7th Cir. 1999) (holding computer image of men urinating on grimacing girl
depicted sadistic conduct within Guidelines providing for four-level enhancement);
United States v. Canada, 110 F.3d 260, 264 (5th Cir.) (imposing Guidelines
enhancement for photographs portraying anal and vaginal penetration of children
through the use of sexual devices), cert. denied, 522 U.S. 875 (1997); United States v.
Delmarle, 99 F.3d 80, 83 (2d Cir. 1996) (holding insertion of object into child's anus
was "excessively cruel" and therefore "sadistic"), cert. denied, 519 U.S. 1156 (1997).
We conclude that given the violent and depraved nature of the images, the district court
did err in deciding that the conduct portrayed in the photographs was merely deviant
and not violent or sadistic so as to warrant the four-level increase in sentence provided
for in § 2G2.2(b)(3). Accordingly, we need not consider whether the conduct depicted
also was "masochistic."




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                                          V.

       For the reasons discussed herein, we affirm Parker's conviction and the district
court’s denial of a new trial, but we reverse and remand this case to the district court
for resentencing consistent with this opinion. Parker's motion to supplement the record
is denied.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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