Submitted: November 20, 2015
Appeal from United States District Court for the District of South Dakota - Rapid City
Before SMITH, BYE, and BENTON, Circuit Judges.
SMITH, Circuit Judge.
Jerry Golliher was convicted by a jury of attempted commercial sex trafficking of a minor. He appeals, arguing that his counsel was ineffective and that the district court should have admitted certain e-mails, provided the trial transcript to the jury in response to a jury question, and stricken the prosecutor's allegedly improper statements. We affirm.
Law enforcement placed the following advertisement on a website: "Here for the [Biker] Rally with 2 younger girls that are down for most anything. Age makes no difference so don't be afraid to ask." Golliher responded to that Internet ad by email, not knowing that law enforcement had placed it as part of a sex-trafficking sting operation. The officer who received Golliher's e-mail responded, "Bobbi is 13 almost 14 and Toni is 12. They both have experience and are good to go. Let me know what you [think]." After an interchange that included age-regressed photos and a discussion of price and a meeting location, Golliher, expecting to pick up Bobbi, met undercover law enforcement. Golliher got out of his car and got into the car of the undercover officer, whom Golliher believed to be Bobbi's pimp. When the officer asked Golliher what he wanted, Golliher indicated that he was willing to pay the discussed $150 for half an hour with Bobbi. The officer promptly arrested Golliher. Golliher was charged with one count of attempted commercial sex trafficking of a minor, in violation of 18 U.S.C. §§ 1591(a)(1), 1591(b)(1), and 1594(a).
Before trial, the government sought to prohibit Golliher from introducing at trial e-mails that he had previously exchanged with purported prostitutes in which he rebuffed their services upon learning that they were underage. Golliher asserts that the e-mails would have impacted the jury's deliberations significantly because they showed that he was not interested in underage sex. The court excluded the e-mails as hearsay. But the court and the prosecution recognized that Golliher might be permitted to introduce the e-mails as a prior consistent statement should the prosecution call into question whether the events took place. Golliher never recounted the events surrounding those e-mails during his voluntary testimony nor offered the e-mails for admission into evidence.
During the prosecutor's closing argument, he discussed the law of entrapment and the elements of the crime of attempt. The prosecutor explained the entrapment defense this way:
Let's flip over to the next instruction, ladies and gentlemen. Instruction number 3. Entrapment. What . . . you have to decide is was the defendant willing to do this or did somebody have to talk him into it? Did somebody have to twist his arm? In this case, the evidence showed two things. The government proved beyond a reasonable doubt that the defendant was willing [on] August 2, 2013, to go out on to the Internet to try to obtain a young girl for sex in exchange for $150. The government proved beyond a reasonable doubt that nobody forced him to do it. Nobody forced him to do it. The government has to prove one of these two things. Not both, but the evidence shows that he willingly did it and the evidence shows that nobody forced him to do it. He did it all on his own. He knew what he was doing and he took those steps all on his own.
The prosecutor made the following statements about the crime of attempt:
The other issue is whether or not there was a substantial step and whether or not he took that step. Ladies and gentlemen, we don't have to prove that he had sex, obviously, but we also don't have to prove that he would have had sex. It is up to you to decide whether a substantial step was made. And I would focus you on the section down here which is that it not be incompatible with innocence, yet it must be necessary to the consummation of the crime and to be of such a nature that a reasonable observer, viewing it in context, could conclude beyond a reasonable doubt that it was undertaken in accordance with a design to violate the statute. We don't have to prove that he would have done it; we have to prove that he took a substantial step to engage in commercial sex trafficking, not that at the end of the day that was what he wanted. That's not what we have to prove.
The prosecutor also said the following on the same topic:
And then the next story was, you know, I wouldn't have gone through with it; I was pushed into it. And then he agreed that he showed up, that he was the one who was chatting, that he showed up, and then he said, "But I didn't agree to it. I was just looking into it. I hadn't decided." Ladies and gentlemen, that is not a defense. If you decide that he took a substantial step enough at the moment that he was arrested, if that at that moment the substantial step had been made, then this case is done. It doesn't matter whether or not he was going—what he was going to do at his house.
Also during closing argument, the prosecutor used the first-person pronouns we and I in asking the jury to convict Golliher. The prosecutor concluded his summation with the following:
The government has proved [its] case, all of these elements that it was [not] an entrapment, beyond a reasonable doubt. And we ask that as you deliberate, we are confident as you deliberate, that you will agree the defendant is guilty beyond a reasonable doubt of going on to the Internet and attempting to solicit a minor for sex for $150 on August 2, 2013. Thank you.
And the prosecutor ended his rebuttal this way:
He's guilty of attempted commercial sex trafficking. Of every element that we are required to prove, he's guilty beyond a reasonable doubt and I ask you to find him as such. Thank you.
After the jury retired to deliberate, the jury foreperson sent a note to the court expressing ...