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United States v. Parkhurst

United States Court of Appeals, Seventh Circuit

July 25, 2017

United States of America, Plaintiff-Appellee,
Jeffrey Parkhurst, Defendant-Appellant.

          Argued May 22, 2017

         Appeal from the United States District Court for the Central District of Illinois. No. 2:15-cr-20051-CSB-EIL-l - Colin S. Bruce, Judge.

          Before Flaum, Easterbrook, and Sykes, Circuit Judges.

          Flaum, Circuit Judge.

         Jeffrey Parkhurst was convicted at trial of attempting to entice a minor to engage in sexual activity and was sentenced to one hundred thirty-two months' imprisonment. On appeal, Parkhurst challenges his conviction and sentence. We affirm both.

         I. Background

         From January to July 2015, Jeffrey Parkhurst posted a series of internet advertisements on Craigslist's "casual encounters" section. On July 20, for example, Parkhurst posted the following ad:

Gentleman Lookin For Young Son - m4m[1](springfield)
Tryin to find a very young white boy in order to spend some quality time together....he would be a little fella . kinda thin built . not too tall . clean kept . little to no body hair . average to good looking. (easy on the eyes lol) a little white guy who is friendly and fun to be around...sense of humor helps... 18 or slightly older (younger the better)...must like to have a good time(not just sensual speaking)...prefer you to be a virgin . as far as guys are concerned . as I am myself to do many different things that are fun .... must enjoy being close . being touched . massaged . rubbed all over with warming oil in a dim lit room and made to feel very erotic and sexy....nothing ever forced on you... goal is only to make you feel so good you will not want it to end ....ever lol....we can try about anything you have ever wondered only need to ask !... Me ?... just an older discrete white guy that's your age at heart and built like a teenager who just needs a discrete little friend to spend good times with...a reply only cost ya a little time and may be the best thing you have done in a long happy !!! Not looking for older guys so don't waste your time or mine . thank you !

         (ellipses in original).[2]

         One week later, Decatur Police Detective Todd Koester discovered Parkhurst's advertisement and responded using an undercover persona of 15-year-old "Kacy Lillard." Kacy (Detective Koester) and Parkhurst then exchanged text and email messages for the next eight and a half hours:

• Kacy initiated the interaction, stating, "just wanted to say hi. im probably to[o] young but i am 15 and liek to hang out."[3] Parkhurst responded, "You are only too young if you can't keep a secret lol. Hi buddy:)"
• Parkhurst stated that he "[w]ould love to give [Kacy] an erotic sensual massage covering every inch of [his] body in a candle lit room with a warming massage oil and supplies to do whatever [he] want[ed] to try."
• Parkhurst asked Kacy whether he was "cut or uncut.... referring to [Kacy's] penis." Upon learning that Kacy was "cut, " Parkhurst stated, "Really glad ur cut, so am I."
• Parkhurst proposed that he and Kacy "experiment and explore together and only try what both of [them] want[ed] to try."
• Parkhurst expressed that he "[m]ay like to try and suck [Kacy]."
• In response to Kacy's question, "U think any of its gonna hurt?/' Parkhurst answered, "I've been studying up on the subject so I know what to do to prepare you so it won't hurt! And I would not hurt you for the world buddy....I will be extra careful buddy cause I want both of us to want to do this over and over and not just a one time deal lol."

         Eventually, Parkhurst and Kacy agreed to meet that night. Parkhurst planned to pick Kacy up at his Decatur apartment (where Detective Koester and other officers would be stationed) at 11:30 PM after Kacy's mother left for work. Parkhurst would take Kacy to a truck stop for dinner, to Parkhurst's Springfield home for the night, and back to Decatur by 7:30 AM the next morning before his mother returned. Kacy messaged that he would need to shower and pack a bag for the night, and Parkhurst responded, "Cool make sure ya clean ur self extra good all over lol and i'll know if ya do later." While traveling to Decatur, Parkhurst offered to purchase Kacy some candy, and stated, "[J]ust gotta promise not to eat them all on the way back here lol." Kacy asked, "Lol I won't. Y not?, " and Parkhurst responded, "Not my kinda candy ! It's all yours buddy....I'm pretty much gonna spoil you anyway so get used to it ok ?"

         At about 11:30 PM, Parkhurst arrived at the Decatur address Detective Koester had provided, and the police promptly arrested and interviewed him. Detective Koester asked how old Parkhurst had believed Kacy was, and Parkhurst answered, "I assumed I was-well, at one point you said you were sixteen. So I assumed I was talking to a fifteen or sixteen year old." Parkhurst added, however, that he had believed Kacy may have been lying about his age given the multiple reported ages. Parkhurst acknowledged that he had implicitly referenced oral sex in his conversation with Kacy, and when asked whether someone reviewing Parkhurst's exchanges with Kacy could reasonably conclude that Parkhurst had intended to engage in sexual activity, Parkhurst responded, "Probably."

         In a one-count indictment, the government charged Parkhurst with attempting to entice a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b). After a trial, a jury found Parkhurst guilty, and the district court sentenced him to one hundred thirty-two months' imprisonment and fifteen years of supervised release. This appeal followed.

         II. Discussion

         Parkhurst appeals both his conviction and his sentence. He requests a new trial by challenging the admission of parts of Detective Koester's testimony and the government's use of certain emails during cross-examination and in closing arguments. Parkhurst seeks resentencing based on the trial court's use of an obstruction enhancement. We review for an abuse of discretion the district court's evidentiary rulings, United States v. Williams, 272 F.3d 845, 856 (7th Cir. 2001) (citation omitted), and sentence-enhancement decisions, United States v. Vasquez-Hernandez, 834 F.3d 852, 854 (7th Cir. 2016).

         A. Detective Koester's Testimony

         Detective Koester served at trial as a dual fact-expert witness, discussing both his interactions (as Kacy) with Parkhurst and his experience involving internet crimes against children. Parkhurst challenges as unreliable two particular portions of Detective Koester's testimony: his understanding of Parkhurst's (1) "candy" comments, and (2) July 20 Craigslist ad. Lastly, Parkhurst contends that Detective Koester's dual fact-expert witness role confused the jury We consider each argument in turn.

         1. "Candy" Conversation

         Parkhurst first challenges the admissibility of Detective Koester's testimony regarding a candy-related conversation he had (as Kacy) with Parkhurst. During direct examination, Detective Koester described his understanding of the conversation:

Q: Okay. And then the rest of that portion of the conversation talks about your preference of candy, hard or chewy, et cetera. And then at 8:44 p.m., tell us about this portion of the conversation.
A: He responds at 8:44 saying, "Cool, just gotta promise not to eat them all on the way back here, LOL."
Q: And then your reaction?
A: At 8:50 I respond, "LOL, I won't. Why not?"
Q: And what does he say?
A: "Not my kind of candy. It's all yours, buddy."
Q: And what do you interpret that portion of the conversation to mean?
A: At that point, I'm thinking he doesn't want this 15-year-old kid to eat a lot of candy because it's gonna interfere with the sexual activity that's supposed to take place.
Defense: Objection, speculation.
Court: Overruled. He can - he's testifying as to what he understood the conversation in which he is a part of [sic]. Overruled.
A: So, I'm thinking that he doesn't want this kid to eat all this candy and get full because of the sexual activity that's gonna take place; he doesn't want him to be sick.

         (internal quotation marks added). Parkhurst asserts that this was expert testimony under Federal Rule of Evidence 702, and argues that the testimony lacked the necessary discussion of "methodology, expertise, or scientific method." The government, however, contends that this was lay-witness testimony, subject to Rule 701's less-strict standards.

         Under Rule 701, "[i]f a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." Fed.R.Evid. 701. We review decisions to admit lay-opinion testimony pursuant to Rule 701 for abuse of discretion. Yancick v. Hanna Steel Corp., 653 F.3d 532, 547 (7th Cir. 2011) (citation omitted). Rule 702 expert testimony, on the other hand, is based on a witness's knowledge, skill, experience, training, or education, and must be based on sufficient facts and reliable principles and methods. Fed.R.Evid. 702. The standard of review is also different: We review de novo whether the court applied the required Rule 702 framework, and for an abuse of discretion the court's decision to admit or exclude the expert testimony. United States v. Pansier, 576 F.3d 726, 737-38 (7th Cir. 2009) (citation omitted).

         Taken together, the government's examination, Detective Koester's answers, and the district court's ruling made clear that Detective Koester's testimony about the "candy" conversation was based on his perception of the conversation at the time it occurred -classic Rule 701 lay-witness testimony. The government, for example, inquired about Detective Koester's "reactions" to Parkhurst's messages, and Detective Koester explained his view of the conversation "at that point." And the district court cleared up any confusion regarding the basis for Detective Koester's answers when the court overruled Parkhurst's speculation objection, clarifying that the detective was testifying about his understanding of the conversation at the time he was participating in it. As such, this testimony need only satisfy Rule 701's requirements. The district court held that it did, and we see no abuse of discretion in admitting it.

         2. July 2 0 Craigslis t Advertisemen t

         Detective Koester was qualified as an expert without objection and gave expert testimony on the ways in which child predators use certain key words in Craigslist advertisements to evade detection, [4] basing his awareness on years of experience in investigating online child abuse and on relevant training.[5] Detective Koester then testified about his particular understanding of Parkhurst's July 20 Craigslist ad:

Q: Now, I believe your testimony yesterday discussed certain parts of advertisements that you look for that are indicative to you, based on your training and experience, of individuals who may be seeking a minor. What parts of [Parkhurst's] ad struck you [when you first saw it on July 27]?
A: Well, the first line, "very young white boy, a little fella." The "18 or slightly older, " right in parentheses after that, "younger the better, " that struck me as something that somebody - okay, I'm complying with Craigslist rules by putting 18 or slightly older, but I'm-
Defense: Objection, speculation.
Government: Your Honor, this witness has been qualified as an expert and can testify to his training and experience and why this ad struck him.
Court: The objection's overruled actually for the reasons [the government] states. He's been qualified as an expert in online investigations. He's able to testify as to ... his experience and give his expert opinion.
A: The - in parentheses right after the "18 or slightly older" where it says "the younger the better/' that's a way for people to get around the Craigslist terms and conditions basically without saying younger. That's just a hint to people reading it. "Prefer you to be a virgin." Built - basically him describing himself as ...

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