United States of America v. Kelly Foster

1The Honorable Robert W. Pratt, Chief Judge, United States District Court for
the Southern District of Iowa.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-1061
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Marvin Dennis Starr, * Southern District of Iowa.
*
Appellant. * [UNPUBLISHED]
*
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Submitted: December 26, 2007
Filed: January 15, 2008
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Before BYE, RILEY, and MELLOY, Circuit Judges.
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PER CURIAM.
A jury found Marvin Dennis Starr guilty of producing child pornography, in
violation of 18 U.S.C. § 2251(a), and possessing child pornography, in violation of
18 U.S.C. § 2252(a)(4)(B). The district court 1 sentenced him below the advisory
Guidelines range to 240 months in prison and 10 years of supervised release. On
appeal, his counsel has filed a brief under Anders v. California, 386 U.S. 738 (1967),
and has moved to withdraw. For the reasons discussed below, we affirm.

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Counsel first argues that there was insufficient evidence to support the
production conviction because the children produced the images on their own, not at
Starr’s direction. Accepting all of the trial evidence and inferences therefrom that
support the verdict, as we must, we conclude that a reasonable jury could have found
Starr guilty. See United States v. Urkevich, 408 F.3d 1031, 1036 (8th Cir. 2005). The
verdict in this case rested on a credibility determination, which is the province of the
jury and which is virtually unreviewable on appeal. See United States v. Davis, 471
F.3d 938, 948 (8th Cir. 2006).
Next, counsel argues that the prosecutor engaged in misconduct by
characterizing Starr as a pedophile and sexual predator, once each during his cross-
examination of Starr and his closing argument. Because the defense did not object
below, we review for plain error, and we conclude that the prosecutor’s comments--
even if improper--did not so infect the trial as to render it fundamentally unfair. See
United States v. Mullins, 446 F.3d 750, 757-59 (8th Cir.), cert. denied, 127 S. Ct. 284
(2006).
Having found no nonfrivolous issues after reviewing the record independently
under Penson v. Ohio, 488 U.S. 75 (1988), we affirm the judgment of the district court
and grant counsel’s request to withdraw.
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