     Case: 15-31083      Document: 00514156247         Page: 1    Date Filed: 09/14/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                      No. 15-31083                                 FILED
                                                                          September 14, 2017
                                                                              Lyle W. Cayce
consolidated with 16-31181                                                         Clerk

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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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 nine-
year-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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                                   No. 15-31083
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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                                    No. 15-31083
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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                                 No. 15-31083
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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                                     No. 15-31083
      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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                                     No. 15-31083
      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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                                  No. 15-31083
      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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                                  No. 15-31083
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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