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United States v. Riepe

United States Court of Appeals, Eighth Circuit

May 31, 2017

United States of America, Plaintiff- Appellee
John Michael Riepe, Defendant-Appellant

          Submitted: January 13, 2017

         Appeal from United States District Court for the Southern District of Iowa - Davenport

          Before WOLLMAN, MURPHY, and MELLOY, Circuit Judges.

          WOLLMAN, Circuit Judge.

         John Michael Riepe was convicted by a jury of one count of attempted enticement of a minor in violation of 18 U.S.C. § 2422(b). The district court[1]sentenced him to 151 months' imprisonment. He appeals, arguing that the evidence was insufficient to convict him of the charged offense and that the district court erred in admitting evidence of his prior bad acts under Federal Rule of Evidence 404(b). We affirm.

         I. Background

         On September 17, 2014, a letter addressed to "[MB], a very special student" was delivered to a high school in Bettendorf, Iowa. MB was a female student who was then fifteen years old. The letter was signed "John Riepe" and listed no return address. It explained that Riepe had met MB at the Bettendorf YMCA some eight or nine months earlier but had not seen her since. He described his appearance and enclosed a picture of himself. The letter invited MB to contact Riepe, using the phone number set forth therein. The letter went on to state that Riepe might attend MB's sporting events or otherwise "see [her] around." MB recalled at trial that Riepe had approached her at the YMCA, that the two had exchanged small talk, and that she might have seen him there on one other occasion.

         After MB showed the letter to her parents, they took it to the police. A check of the police department's computer system revealed that Riepe was thirty years old and lived near a high school in Davenport, Iowa. With the permission of MB and her parents, Detective Rachelle Kunde of the Scott County Sheriff's Office, a member of the Iowa Internet Crimes Against Children Task Force, began sending text messages to Riepe at the number he had provided, purporting to be MB.[2]

         Kunde and Riepe began exchanging text messages on September 22, 2014. After Kunde told Riepe that she had received his letter, Riepe suggested that the two exercise together again, stating that he "missed [his] [MB]." Riepe stated that "its nice to b able to talk to a rational girl for [once] and your so hot." Kunde then complimented Riepe's appearance and said, "U know wht is super cool? that u don't treat me like a kid bcuz im 15!" Riepe asked when he could see her again and suggested that he attend her sporting events. Kunde responded that they could not meet at school or otherwise be seen together.

         On September 26, Kunde texted Riepe, "hey! what u doin?" Riepe replied that he was watching television and thinking about MB. Riepe stated, "Gosh I love u lol !" ("lol" means "laugh out loud" in text-message speak). On September 27, Kunde declined Riepe's offer to go "[h]aunted housing." On September 28, Riepe texted that he was thinking of MB, that she made him smile, and that "U look so good walkn arnd the weight room."

         On September 29, Riepe texted "[MB] lol !;) ." He told her that he had pulled a groin muscle while running. He asked how MB got home from school. Kunde replied that sometimes her mother picked her up and sometimes she rode with friends. Riepe then asked, "Do u live far, " to which Kunde did not respond.

         On October 3, Riepe texted, "Thinking of u:) hope you had a great week TGIF !" Riepe disclosed that he had driven past MB's high school the previous day, and said, "i really like u as a fr[iend]. . . . Or a gf [girlfriend]." Kunde replied, "U would want me as yur gf??" Riepe responded, "Sure... But seriously your great." He asked if they could meet soon and attend a movie or go to a haunted house. Kunde responded that she would try. Riepe offered to give MB a ride home from school, but Kunde declined, noting that she did not want her mother or anyone else to see them together. Riepe stated, "I cant wait;) i was never cut lol, " which, he later explained, meant that he had not been circumcised. According to Riepe, this would result in "more pleasure for both." He later told her, "U are the best [MB] ... I love you." Kunde replied, "Love u 2." Riepe stated, "Well we cn c eachother whnevr your ready."

         On October 10, Riepe texted, "[MB]:) ." After Kunde replied that she had thought Riepe had forgotten about her, Riepe responded "I thnk abt u all the time." Riepe's October 16 text said that he was thinking of MB and that he did so daily. When asked about the nature of his thoughts, he replied, "sexually lol! Just u in general I cant wait to c u again." Kunde asked, "U think about sex w me?:) ." Riepe answered, "Its possible lol !" Kunde then texted, "Ok:) I didn't think u would wanna do that stuff w me lol." Riepe replied, "I find u sexually attractive."

         Kunde told Riepe that she had not had sex before, but that she would do so if Riepe wanted to. Riepe replied, "Alright." In response to her inquiry as to where they could have sex, Riepe said that they could do so at his house or a hotel room. When Kunde expressed concern that she would not know what to do, Riepe told her, "Lol ! U wld b fine...we dnt have to do it right away we cn go c a movie first or whtever." Kunde requested that Riepe use a condom because she did not want to risk becoming pregnant. Riepe asked MB not to get him into trouble. She replied that she would not. Riepe stated, "I feel rly horny rght nw." After Kunde asked when he wanted to have sex, Riepe replied, "Its up to u...ths wknd?" Kunde said that she could not meet over the weekend, but that she was available either that night or the following week. Riepe replied that they should meet the following week and that they should also visit haunted houses together. Riepe then discussed masturbation and described the size of his penis. He asked whether MB had seen pornography and whether she enjoyed oral sex. He also stated, "technically your ...

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