United States of America v. Joshua Johnson

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 25-1156
___________________________
United States of America
Plaintiff - Appellee
v.
Joshua Johnson
Defendant - Appellant
____________
Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
____________
Submitted: October 23, 2025
Filed: December 17, 2025
____________
Before LOKEN, BENTON, and SHEPHERD, Circuit Judges.
____________
BENTON, Circuit Judge.
A jury convicted Joshua C.J. Johnson of attempted sex trafficking of a child
and destruction of evidence, in violation of 18 U.S.C. §§ 1591(a)(1), 1591(b)(1),
1594(a), and 1519. On appeal, Johnson challenges the district court’s1 admission of
1 The Honorable C.J. Williams, Chief Judge, United States District Court for
the Northern District of Iowa.

-- 1 of 10 --

-2-
the undercover agent’s lay-opinion testimony, denial of his motion to contact a juror,
and not granting a downward variance based on his claim of sentencing
manipulation. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
I.
Skip the Games is a prostitution website. While it says it prohibits minors’
use, its only safeguard is self-verification. Aware that children are trafficked on Skip
the Games, Special Agent Hillary Nielsen, with Homeland Security, posted an
undercover profile on December 4, 2023.
Nielsen’s profile advertised a 45-year-old woman, “Abi,” in Hiawatha, Iowa.
Two days after it was posted, Johnson responded to the ad. When he asked Abi’s
age and whether she was affiliated with law enforcement, Nielsen plainly stated
“she” was really 13 years old.
Johnson then sent several replies, including: “I don’t mess with u der age
srry,” “Do t mess with Under age not trying to go to jail,” “That’s illegal in every
state,” and “IDK I’ve seen people get set up like this.” Despite these, after Abi
assured him she was neither “finna tell”2 nor associated with law enforcement, he
continued messaging her. His next message was, “Got any pics?” Nielsen sent an
altered photo of herself, portraying a young girl. He then asked for “skin pics” and
who was the “oldest guy” she had been with. Nielsen often referred to Abi’s minor
status—her age and school—and used juvenile slang. When Johnson eventually
suggested a location to meet up, Abi stated, “Umm yeah i can prolly walk there,”3
implying she was too young to drive.
Three days after the posting, Johnson offered Abi $140 for a half hour of her
time, requesting a “69 n f__k.” Johnson and Abi agreed on a time and place. When
he asked if he needed to bring protection, Nielsen replied, “Im not finna get a std at
2 Explained at trial as “going to” or “about to.”
3 Explained at trial as “probably.”

-- 2 of 10 --

-3-
13.” Johnson again asked if Abi was “law enforcement or predator trap [s__t] or
anything like that cause it’s intrapement [sic] if u are.” After Abi texted that she was
doing this on her own, he commented on how mature she sounded for her age.
Johnson arrived at the rendezvous that afternoon. Nielsen called, directing
him in an adolescent voice to another location. There, two Special Agents stopped
his vehicle to interview him. Johnson stated he wanted nothing to do with a minor
and was going to block her number. The agents told him he was not under arrest
and free to leave but that they were seizing his phone. After he begged to make a
call, the agents gave him the phone. Johnson made several calls, did not reach
anyone, then angled his phone away from the agents, wiped it, and pretended to
make another call. Seeing what Johnson had done, one agent re-seized the phone,
confronting him about destroying its contents. Johnson first said that the battery had
died but later admitted to erasing the phone. Lost were pictures, text messages,
contacts, call history, browser history, and downloads.
At trial, Johnson swore he thought Abi was either a 45-year-old adult role-
playing as a 13-year-old girl, or a child being trafficked. He emphasized the maturity
of Abi’s messages and his prior 20 visits to Skip the Games. He swore he did not
intend to have sex with a minor, and that if he had seen Abi was really 13 years old,
he would have tried to save her. He also swore he wiped his phone to show law
enforcement he wanted nothing to do with a 13-year-old girl.
The jury convicted Johnson of attempted sex trafficking of a child and
destruction of evidence. The district court sentenced him to 292 months’
imprisonment for his attempted-sex-trafficking-of-a-child charge, and 240 months
for his destruction-of-evidence charge—both sentences to run concurrently.
Johnson appeals.
II.
Johnson argues that the district court erred in admitting Nielsen’s opinion
testimony about the maturity of three of Abi’s responses. During Johnson’s

-- 3 of 10 --

-4-
conversation with Abi, he first asked her what she liked. Abi responded, “Ummm
this isnt really about what i like.” He then requested discussing in person what to do
on their “date.” She responded, “. . . i dont do surprises sry.”4 After some confusion,
Abi clarified, “Lol i meant i dont do dates when i dont know what im gettin into.”
At trial, Johnson’s counsel asked Nielsen whether these responses were fairly mature
and suggested experience. Nielsen replied she thought the responses were indicative
of someone familiar with prostitution, or experience being a sex-trafficked child.
Johnson argues Nielsen’s opinion was impermissible expert testimony. He further
claims that it does not meet the requirements for a lay-witness opinion under Federal
Rule of Evidence 701. Johnson did not object to this testimony at trial.
Generally, a district court’s admission of lay-opinion testimony is reviewed
for an abuse of discretion. United States v. Oslund, 453 F.3d 1048, 1059 (8th Cir.
2006). However, since Johnson did not properly preserve the potential error, plain-
error review applies. See United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005)
(en banc). To prove plain error, “there must be (1) error, (2) that is plain, and (3)
that affects substantial rights.” Id. at 550, quoting Johnson v. United States, 520
U.S. 461, 467 (1997). “If all three conditions are met, an appellate court may then
exercise its discretion to notice a forfeited error, but only if (4) the error seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” Id.,
quoting Johnson, 520 U.S. at 467.
Rule 701 permits lay-opinion testimony if it is “rationally based on the
perception of the witness”; “helpful to a clear understanding of the witness’s
testimony or the determination of a fact in issue”; and “not based on scientific,
technical, or other specialized knowledge within the scope of Rule 702.” United
States v. Sorensen, 148 F.4th 992, 996 (8th Cir. 2025); Fed. R. Evid. 701. Law
enforcement officers, as non-expert witnesses, “may offer testimony that is
rationally based on their perceptions during the investigation.” United States v.
Overton, 971 F.3d 756, 762 (8th Cir. 2020), citing Fed. R. Evid. 701. Lay-opinion
4 Explained at trial as “sorry.”

-- 4 of 10 --

-5-
testimony from law enforcement officers interpreting evidence “is admissible under
Rule 701 only when the law enforcement officer was a participant in the
conversation, had personal knowledge of the facts being related in the conversation,
or observed the conversations as they occurred.” United States v. Dierks, 978 F.3d
585, 592 (8th Cir. 2020).
Nielsen satisfies these exceptions. She posed as Abi, modifying her image to
represent Abi. She messaged Johnson. Nielsen had personal knowledge of the
information exchanged in the conversation. She can provide a non-expert
interpretation of her messages with Johnson. See Dierks, 978 F.3d at 592–93. This
testimony was permissible under Rule 701 because it was based on Nielsen’s general
knowledge of child-sex trafficking on sites like Skip the Games. See United States
v. Watkins, 127 F.4th 1142, 1145 (8th Cir. 2025) (“A witness’s professional training
and experience concerning a subject does not, standing alone, render h[er] testimony
about that subject expert testimony.” (cleaned up)); U.S. Salt, Inc. v. Broken Arrow,
Inc., 563 F.3d 687, 690 (8th Cir. 2009) (“A witness may provide lay opinion
testimony about facts within his or her range of generalized knowledge, experience,
and perception.” (internal quotation marks omitted)). This testimony helped the jury
determine whether Abi’s responses were too mature for Johnson to believe she was
really age 13 (and it did not fall within the scope of Rule 702). See Fed. R. Evid.
701, 702. Law enforcement officers can provide lay-opinion testimony about the
level of maturity conveyed in their own messages. Cf. United States v. Peoples, 250
F.3d 630, 640–41 (8th Cir. 2001) (ruling that a district court erred in admitting an
officer’s lay-opinion testimony interpreting conversations because she “lacked first-
hand knowledge” and “[h]er opinions were based on her investigation after the fact,
not on her perception of the facts”). Johnson cannot show that the district court
erred, let alone plainly erred.
The district court properly admitted Nielsen’s responsive testimony about the
maturity of Abi’s responses.

-- 5 of 10 --

-6-
III.
Johnson argues that the district court’s denial of his motion to contact the jury
foreperson is an abuse of discretion. After trial, the jury foreperson stated he heard
another juror say that he was willing to change his vote in order to make it on time
to his vacation. Johnson claims that an outside party likely created the juror’s
potential hastiness. The district court, however, found Johnson’s claim speculative.
This court gives “substantial weight to the trial court’s appraisal of the
prejudicial effects of extraneous information on the jury, since the trial judge has the
advantages of close observation of the jurors and intimate familiarity with the issues
at trial.” United States v. Cheyenne, 855 F.2d 566, 568 (8th Cir. 1988). The district
court’s “decision whether to conduct an evidentiary hearing over such allegations
will be affirmed absent an abuse of discretion.” United States v. Wintermute, 443
F.3d 993, 1002 (8th Cir. 2006). “Federal Rule of Evidence 606(b) generally
precludes inquiry into intrajury communications.” United States v. Johnson, 495
F.3d 951, 981 (8th Cir. 2007). An exception to the Rule permits jurors to testify
about whether “an outside influence was improperly brought to bear on any juror.”
Fed. R. Evid. 606(b)(2)(B). “Before a hearing may be granted, however, the
moving party should show that outside contact with the jury presents a reasonable
possibility of prejudice to the verdict.” Johnson, 495 F.3d at 981 (cleaned up).
Improper, outside communication or tampering with a juror in a criminal case
about matters pending before the jury is “presumptively prejudicial.” Remmer v.
United States, 347 U.S. 227, 229 (1954). Speculative contact between jurors and
outside parties, however, does not create this presumption of prejudice. See United
States v. Phillips, 609 F.2d 1271, 1274 (8th Cir. 1979).
Johnson’s argument is purely speculative. He only guesses that an outside
person influenced a juror. Since Johnson did not present any evidence (except for
pure speculation) that an outside party influenced the juror to hasten his vote, he fails
to raise a viable claim of outside influence. See Wintermute, 443 F.3d at 1002–03

-- 6 of 10 --

-7-
(“Speculation and unsubstantiated allegations do not present a colorable claim of
outside influence of a juror.”); United States v. Muhammad, 819 F.3d 1056, 1062
(8th Cir. 2016) (“[A]n evidentiary hearing is not necessary if the movant fails to
raise a colorable claim of outside influence.” (internal quotation marks omitted));
United States v. Moses, 15 F.3d 774, 778 (8th Cir. 1994) (“Not every allegation of
outside influence requires an evidentiary hearing.”); Phillips, 609 F.2d at 1274 (“The
denial of the motion for a new trial based on appellants’ speculative claims of third
party contact with a juror was not an abuse of discretion.”).
Because Rule 606(b) prohibits Johnson’s inquiry, the district court did not
abuse its discretion in denying Johnson’s motion to contact a juror.
IV.
Johnson argues that the district court erred by not granting a downward
variance because the government engaged in sentencing manipulation. Under 18
U.S.C. § 1591(b)(1), enticing a minor under the age of 14 to engage in a commercial
sex act has a mandatory minimum sentence of 15 years’ imprisonment. The same
offense with minors age 14 and older has a mandatory minimum sentence of 10
years’ imprisonment. 18 U.S.C. § 1591(b)(2). He alleges Nielsen’s decision to
make Abi age 13, rather than age 14, impermissibly increased his sentence.
“Sentencing manipulation occurs when the government unfairly exaggerates
the defendant’s sentencing range by engaging in a longer-than-needed
investigation.” United States v. John, 27 F.4th 644, 650 (8th Cir. 2022), quoting
United States v. Torres, 563 F.3d 731, 734 (8th Cir. 2009). “[S]entencing
manipulation, if present, is a violation of the Due Process Clause.” Torres, 563 F.3d
at 734. “When evaluating the refusal to grant a downward departure or variance
based on alleged sentencing manipulation, ‘we review the district court’s factual
findings for clear error and its legal conclusions de novo.’” John, 27 F.4th at 650
(emphasis added), quoting United States v. Moran, 612 F.3d 684, 691 (8th Cir.
2010) (considering a sentencing-manipulation challenge to the district court’s denial
“to grant a downward departure or variance” (emphasis added)).

-- 7 of 10 --

-8-
Johnson first presented a “sentencing entrapment” claim in his motion for a
downward variance. “Sentencing manipulation and sentencing entrapment are
distinct defenses available to defendants.” United States v. Booker, 639 F.3d 1115,
1118 (8th Cir. 2011). The district court here recognized the claim as a sentencing-
manipulation argument, which Johnson now brings on appeal. The government
argues that plain-error review should apply because the claim was not properly
preserved. Since the district court considered a sentencing-manipulation claim in its
denial of Johnson’s downward variance, plain-error review does not apply. See
Palmer v. Miller, 145 F.2d 926, 930 (8th Cir. 1944) (“This Court can review only
rulings made by the trial court on questions which were brought to its attention and
passed upon by it.”); United States v. Wisecarver, 644 F.3d 764, 774 (8th Cir. 2011)
(stating this court presumes the district court considered issues presented before it at
sentencing). Cf. Naca v. Macalester Coll., 947 F.3d 500, 501–02 (8th Cir. 2020)
(“This court reviews only the specific arguments raised before the district court, as
opposed to those arguments the district court might have deduced from the record as
a whole.” (internal quotation marks omitted)). See also Webster v. Kijakazi, 19 F.4th
715, 720 (5th Cir. 2021) (“An argument is not waived, though, if the argument on
the issue before the district court was sufficient to permit the district court to rule on
it.” (citation and internal quotation marks omitted)). Thus, this court reviews “the
district court’s factual findings for clear error and its legal conclusions de novo.”
John, 27 F.4th at 650.
To prevail, Johnson must prove by a preponderance of the evidence that the
officers made Abi age 13 solely to enhance his sentence. See Torres, 563 F.3d at
734. “When there is evidence of legitimate law enforcement goals and purposes to
support the length or nature of the investigation, [however,] there is no cognizable
claim of sentencing manipulation.” John, 27 F.4th at 650.
Law enforcement had a legitimate goal in making Abi age 13. As the district
court stated at sentencing:

-- 8 of 10 --

-9-
There are limited government resources for conducting these sting
operations. If the government’s going to conduct sting operations and
try to rid our society of people who are going to prey on children for
sex, it follows that they’re going to devote their resources to the worst
of the worst. And the law has defined the “worst of the worst” as people
going after children under the age of 13.
Devoting resources against those who prey on younger children is a legitimate law
enforcement goal. See United States v. Musslyn, 865 F.2d 945, 947 (8th Cir. 1989)
(collecting cases) (“[U]ndercover operations utilized by government agencies to
investigate, catch, and convict child pornography collectors have withstood [due
process] challenge[s] . . . .”); United States v. Moore, 916 F.2d 1131, 1139 (6th Cir.
1990) (finding undercover officers’ purchase of an ad to detect and investigate those
who “sell, purchase and traffic in child pornography” “necessary” because they
operate in secrecy).
Applying this court’s logic from its drug and firearm enforcement cases, the
government had a legitimate law enforcement goal in making Abi age 13, in order
to determine who would seek sex with a minor that young. See John, 27 F.4th at
650 (finding a legitimate law enforcement goal in buying more guns from the
defendant “to get as many guns off the street as possible”); Moran, 612 F.3d at 692
(finding a legitimate law enforcement goal in increasing the amount of drug
transactions to probe the true extent of a criminal enterprise); Torres, 563 F.3d at
735 (finding a legitimate law enforcement goal in engaging in a series of drug
purchases to build trust and ultimately determine the volume of drugs he was capable
of selling). See generally United States v. Matlack, 674 F. Appx. 869, 872 (11th
Cir. 2016) (holding, on similar facts, that the district court did not err “by failing to
hold that the government engaged in sentencing factor manipulation by using a
fictitious 12-year-old child to catch [the defendant] in a crime with an enhanced
sentence,” even when “the government was the first to mention a 12-year-old child,”
because the defendant “initiated the conversation,” “was the first to mention wanting
‘young stuff,’” and “could have said no to the transaction based on the age of the

-- 9 of 10 --

-10-
child, but [ ] did not”). Thus, Johnson has no cognizable sentencing-manipulation
claim.
Johnson’s sentencing-manipulation attack also fails because he cannot satisfy
his burden of proof. He provides no evidence that the government acted solely to
enhance his sentence. Instead, he argues Nielsen could have achieved law
enforcement’s goal of catching the “worst of the worst” by making Abi age 12 or
11, and that making her age 13 (the end point for the higher statutory and guideline
penalty) is evidence enough. It is not. See United States v. Sacus, 784 F.3d 1214,
1220–21 (8th Cir. 2015) (finding the district court did not err in its sentencing when
the agent gave “legitimate law enforcement reasons,” and the defendant “provided
no evidence that the[] legitimate law enforcement reasons were solely a ruse for
sentence enhancement”); Moran, 612 F.3d at 692 (finding no sentencing
manipulation when a legitimate law enforcement goal exists, and the record reveals
that sentencing enhancement was not the sole purpose behind the officers’ actions).
Johnson further argues that the district court’s “worst of the worst” analysis is
erroneous and clear error. He asserts the district court’s denial is based on unfounded
speculation because the government did not provide a legitimate law enforcement
goal for this inference. See United States v. Harrell, 982 F.3d 1137, 1140 (8th Cir.
2020) (stating “sentencing courts may not engage in speculation or draw inferences
unsupported by the record”). This court applies a deferential abuse-of-discretion
standard when reviewing the imposition of sentences. United States v. Feemster,
572 F.3d 455, 461 (8th Cir. 2009) (en banc). The district court did not abuse its
discretion in finding an obvious legitimate law enforcement goal.
The district court properly refused to grant a downward variance based on
Johnson’s claim of sentencing manipulation.
* * * * * * *
The judgment is affirmed.
______________________________

-- 10 of 10 --