PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARQUES DRAKEFORD BYNUM, a/k/a No. 08-4207
markie_zkidluv6, a/k/a
keyido126@netzero.net,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Martin K. Reidinger, District Judge.
(3:06-cr-00401-MR-DCK-1)
Argued: March 25, 2010
Decided: May 5, 2010
Before WILKINSON and MOTZ, Circuit Judges,
and Joseph R. GOODWIN, Chief United States District
Judge for the Southern District of West Virginia,
sitting by designation.
Affirmed by published opinion. Judge Motz wrote the opin-
ion, in which Judge Wilkinson and Judge Goodwin joined.
COUNSEL
ARGUED: Aaron Edmund Michel, Charlotte, North Caro-
lina, for Appellant. Adam Christopher Morris, OFFICE OF
2 UNITED STATES v. BYNUM
THE UNITED STATES ATTORNEY, Charlotte, North Car-
olina, for Appellee. ON BRIEF: Gretchen C. F. Shappert,
United States Attorney, Charlotte, North Carolina, for Appel-
lee.
DIANA GRIBBON MOTZ, Circuit Judge:
A jury convicted Marques Drakeford Bynum of transport-
ing and possessing child pornography, in violation of 18
U.S.C. § 2252A (2006). The district court sentenced him to
192 months in prison. Bynum appeals, challenging his convic-
tion and sentence. Finding no reversible error, we affirm.
I.
On July 8, 2003, FBI Special Agent Gregory Zack, working
undercover and using an informant’s password, entered a
child-pornography online chat group administered by Yahoo!
Inc. ("Yahoo"). Agent Zack observed that someone using the
moniker "markie_zkidluv6" had, on June 22, 2003, uploaded
to the group’s website a dozen photos depicting children
engaged in sexual acts. On July 10, 2003, Agent Zack again
accessed the group and observed that the same user had
uploaded several more illicit images.
In an effort to identify "markie," the FBI served an admin-
istrative subpoena on Yahoo, requesting the subscriber infor-
mation "markie" had entered into the Yahoo website when he
opened his account, and the internet protocol ("IP") addresses
(numbers generated automatically by the internet service pro-
vider) associated with the user’s uploads to the Yahoo web-
site.
Once Yahoo provided the FBI with this information, Agent
UNITED STATES v. BYNUM 3
Zack plugged the IP addresses into a free, public website that
directed him to the internet service provider associated with
those addresses, UUNET Technologies ("UUNET"). The FBI
then issued a subpoena to UUNET asking for information on
the customer associated with the IP addresses. After receiving
from UUNET an email address and telephone number—
which indicated to Agent Zack that "markie" had used a
phone-based "dial-up service and not a cable or DSL line" to
access the internet—Agent Zack subpoenaed the phone and
internet companies that operated the dial-up service.1 Drawing
from their "subscriber information" records, these companies
provided Agent Zack with Bynum’s name and the physical
address from which the uploads emanated: the Charlotte,
North Carolina home of Bynum’s mother.
On September 22, 2003, Agent Zack entered the online
chat group again and observed a third upload from "markie,"
this time containing a video entitled "4yo-refusing-cumshot-
wsound[1].mpg." That same day, Agent Zack accessed "mar-
kie’s" profile information, in which the user identified himself
as a 24-year-old single male living in North Carolina who
"want[s] to chat with any cute girls that live close by thats
[sic] up for a little fun." The profile also included a photo of
Bynum.
The FBI used this information to prepare an affidavit in
support of a search warrant of the Bynum home. A federal
magistrate judge issued the warrant and, during the December
2003 search that followed, the FBI found a laptop computer
in a bedroom that the agents recognized as the background for
Bynum’s profile photo. A subsequent search of the computer
revealed the images and video Agent Zack had earlier found
uploaded online, as well as 5,074 photos and 154 videos of
child pornography.
1
All the administrative subpoenas served in this case requested that the
recipients not disclose to Bynum or anyone else the existence of the sub-
poenas.
4 UNITED STATES v. BYNUM
Three years later, in September 2006, a federal grand jury
indicted Bynum on three counts of transporting child pornog-
raphy in interstate commerce (by uploading it to Yahoo’s out-
of-state servers on July 8, July 10, and September 22, 2003),
see 18 U.S.C. § 2252A(a)(1), and one count of possessing
child pornography that had moved in interstate commerce, see
id. § 2252A(a)(5)(B).
Bynum moved to suppress the evidence seized during the
December 2003 search, arguing that this evidence constituted
the fruit of "unlawful administrative subpoenas," and that the
affidavit supporting the search warrant did not demonstrate
probable cause and lacked critical information. He also
moved to exclude proffered expert Government testimony as
to whether the images in question depicted real children or
were computer-generated, and thus protected under the First
Amendment. After holding separate hearings, the court denied
both motions.
Bynum proceeded to trial on the four counts charged in the
indictment. At the conclusion of the Government’s case,
Bynum moved for judgment of acquittal, which the court
denied. Bynum offered no evidence, and the jury found him
guilty on all counts. Bynum then renewed his motion for
acquittal, which the court again denied.
At sentencing, Bynum objected, without success, to the
sentence recommended in his presentence investigation
report, and advanced arguments in support of a downward
variance from the United States Sentencing Guidelines’
("U.S.S.G." or "Guidelines") advisory range of 168-210
months in prison. For its part, the Government sought an
upward variance from the Guidelines, urging the district court
to impose the maximum statutory penalty of 20 years in
prison. See 18 U.S.C. § 2252A(b)(1). Bynum elected not to
allocute. The district court denied both parties’ requests.
Instead, it imposed a mid-Guidelines sentence of 192 months’
imprisonment.
UNITED STATES v. BYNUM 5
Bynum timely noted this appeal.
II.
Bynum raises two Fourth Amendment challenges to the
district court’s refusal to suppress evidence seized during the
search of the Bynum home, including the computer that
uploaded and stored the child pornography at issue here.
"Whether certain conduct by law enforcement officers
infringes upon rights guaranteed by the Fourth Amendment is
a question of law subject to de novo review." United States
v. Breza, 308 F.3d 430, 433 (4th Cir. 2002).
A.
First, Bynum contends that the Government’s use of "se-
cret" administrative subpoenas violated his Fourth Amend-
ment rights. He offers no case law supporting this theory, and
we have found none.
"The ‘touchstone’ of Fourth Amendment analysis is
whether the individual has a reasonable expectation of privacy
in the area searched . . . ." Id. at 433 (quoting Oliver v. United
States, 466 U.S. 170, 177 (1984)). In order to demonstrate a
legitimate expectation of privacy, Bynum "must have a sub-
jective expectation of privacy, and . . . that subjective expecta-
tion must be reasonable." United States v. Kitchens, 114 F.3d
29, 31 (4th Cir. 1997).
In this case, Bynum can point to no evidence that he had
a subjective expectation of privacy in his internet and phone
"subscriber information"—i.e., his name, email address, tele-
phone number, and physical address—which the Government
obtained through the administrative subpoenas. Bynum volun-
tarily conveyed all this information to his internet and phone
companies. In so doing, Bynum "assumed the risk that th[os]e
compan[ies] would reveal [that information] to police." Smith
v. Maryland, 442 U.S. 735, 744 (1979). Moreover, Bynum
6 UNITED STATES v. BYNUM
deliberately chose a screen name derived from his first name,
compare "markie_zkidluv6" with "Marques," and voluntarily
posted his photo, location, sex, and age on his Yahoo profile
page.
Even if Bynum could show that he had a subjective expec-
tation of privacy in his subscriber information, such an expec-
tation would not be objectively reasonable. Indeed, "[e]very
federal court to address this issue has held that subscriber
information provided to an internet provider is not protected
by the Fourth Amendment’s privacy expectation." United
States v. Perrine, 518 F.3d 1196, 1204 (10th Cir. 2008) (col-
lecting cases).
In sum, because the FBI’s administrative subpoenas did not
invade any legitimate privacy interest possessed by Bynum,
their issuance did not violate the Fourth Amendment.2
B.
Bynum also challenges the sufficiency of the affidavit sup-
porting the search warrant. The Fourth Amendment mandates
that "no Warrants shall issue, but upon probable cause, sup-
ported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized."
U.S. Const. amend. IV. Probable cause to search exists if
2
Because Bynum does not allege a privacy interest in the IP addresses
the FBI obtained from Yahoo—numbers that Bynum never possessed—he
has abandoned any such claim. See Edwards v. City of Goldsboro, 178
F.3d 231, 241 n.6 (4th Cir. 1999). Furthermore, because we decide that the
nature of the information that Bynum voluntarily conveyed carries no con-
stitutional expectation of privacy, we need not address his argument that
the subpoenas in this case, because "secret," should be subject to a stan-
dard more stringent than "general reasonableness," Petr.’s Br. 16-17; see
In re Subpoena Duces Tecum, 228 F.3d 341, 348 (4th Cir. 2000), or the
Government’s contention that Bynum lacks Fourth Amendment standing
to contest the subpoenas because they were "directed at [internet service
providers], not at him," Govt.’s Br. 19.
UNITED STATES v. BYNUM 7
there is "‘a fair probability that contraband or evidence of a
crime will be found in a particular place.’" United States v.
Gary, 528 F.3d 324, 327 (4th Cir. 2008) (quoting Illinois v.
Gates, 462 U.S. 213, 238 (1983)).
Bynum maintains that the affidavit supporting the search
warrant was deficient because it (1) did not disclose that June
22, 2003 was the actual date of the first two uploads (rather
than July 8 and 10, when Zack observed those uploads); (2)
did not explain why the administrative subpoenas revealed
information for July 25, 26, and 27, rather than June 22, July
8, or July 10; and (3) lacked "probable cause to believe that
the suspect would still be at t[he searched] address" in
December, six months after the first charged uploading.
Petr.’s Br. 19.
These arguments fail because Bynum presents no reason—
nor can we fathom one—as to why these minor date discrep-
ancies, or the delay between the administrative subpoenas and
the request for a warrant, undermine the magistrate judge’s
reasonable conclusion that the home of Bynum’s mother
likely contained evidence of a crime. The affidavit established
that on July 8 and 10, the FBI observed that "mar-
kie_zkidluv6" had uploaded suspected child pornography to
the internet, and that, later in July, somebody at the Bynum
address used that screen name. Regardless of the dates of the
uploads, the affidavit plainly established a "fair probability"
that a search of the premises might uncover evidence of pos-
session and transmission of child pornography. In a different
case, slight date discrepancies might call into question a find-
ing of probable cause. Cf. United States v. Rattenni, 480 F.2d
195, 199 (2d Cir. 1973). Here, however, "[t]he magistrate’s
determination of probable cause rested on the actual facts of
the [illegal uploads], not [any] erroneous date[s] stated in the
warrant." Gary, 528 F.3d at 328.
Moreover, even assuming that probable cause did not sup-
port the warrant, the district court found "no bad faith" in the
8 UNITED STATES v. BYNUM
FBI’s reliance on the warrant or affidavit, which was not
"bare bones," and Bynum presents no evidence or argument
demonstrating this finding to be clearly erroneous. Therefore,
suppression of the evidence against Bynum would not serve
the deterrent purposes of the Fourth Amendment’s exclusion-
ary rule. See id. at 329-30; United States v. Leon, 468 U.S.
897, 913 (1984) (establishing good-faith exception to exclu-
sionary rule when "officers reasonably rely[ ] on a warrant
issued by a detached and neutral magistrate").
III.
Bynum poses two evidentiary challenges.
A.
He first contends that the Government offered insufficient
evidence that he, "rather than some other occupant or resident
or friend" at his parents’ home "was up to suspected mis-
chief," and that "the suspected child pornography was in fact
pictures of the molestation of real children." Petr.’s Br. 21-22.3
In determining sufficiency of the evidence, "we ask whether,
viewing the evidence in the light most favorable to the gov-
3
Bynum also contends that prosecution of those who merely transmit
and possess child pornography (as opposed to child molesters who pro-
duce child pornography) violates the First Amendment’s guarantee of free
speech. Petr.’s Br. 24-25. Our case law forecloses this argument. See
United States v. Matthews, 209 F.3d 338, 342 (4th Cir. 2000) (finding that
"[t]he protection of children clearly constitutes a ‘public welfare’ interest
justifying regulation of speech in certain circumstances," including child
pornography, and rejecting a journalist’s First Amendment defense to
transmission-of-child-pornography charges). Bynum apparently recog-
nizes this, asserting that Matthews—the only case he cites—subordinates
"freedom" to "the misplaced policies of the government," and constitutes
an "assault on the specific designs of our founding generation." Petr.’s Br.
25. Even if this were so, Matthews is circuit precedent that we must follow
in the absence of "an en banc overruling or a superseding contrary deci-
sion of the Supreme Court." United States v. Prince-Oyibo, 320 F.3d 494,
498 (4th Cir. 2003).
UNITED STATES v. BYNUM 9
ernment, any rational trier of facts could have found the
defendant guilty beyond a reasonable doubt." United States v.
Harvey, 532 F.3d 326, 333 (4th Cir. 2008) (internal quotation
marks omitted).
Given this deferential standard, abundant evidence supports
the jury’s conclusion that Bynum, and not someone else, com-
mitted the offenses charged in the indictment. At trial, the
Government offered evidence that the agents found the com-
puter in question in Bynum’s bedroom, the same bedroom
visible in Bynum’s Yahoo profile photo, which had been
taken using the computer’s camera; that the computer had a
login name of "Marques" (Bynum’s first name) and contained
the actual uploaded images and video; and that, on the day of
the search, Bynum admitted that he had used the "markie"
account and kept the password on a piece of paper in his bed-
room at his parents’ home. The Government also presented
evidence of chats, i.e., online conversations using instant mes-
saging, found on that computer, in which Bynum discussed
the group and photos. Notwithstanding Bynum’s vague and
unsupported suggestions of "IP-spoofing," and assertedly
weak "ties to his mother’s home," Petr.’s Br. 21, a rational
fact finder could have found, beyond a reasonable doubt, that
Bynum knowingly possessed and transmitted child pornogra-
phy.
Sufficient evidence similarly supports the jury’s conclusion
that the images and videos in question depicted real children.
See 18 U.S.C. § 2256(8)(A) (2006) (defining "child pornogra-
phy" as a visual depiction the production of which "involves
the use of a minor engaging in sexually explicit conduct").
"[T]here seems to be general agreement among the circuits
that pornographic images themselves are sufficient to prove
the depiction of actual minors." United States v. Salcido, 506
F.3d 729, 734 (9th Cir. 2007) (per curiam) (collecting cases).
In other words, the Government need not present any extrinsic
evidence as to this issue, so long as the jury has had an
opportunity—as it did here—to view the relevant images. See,
10 UNITED STATES v. BYNUM
e.g., United States v. Rodriguez-Pacheco, 475 F.3d 434, 440-
41 (1st Cir. 2007). Of course, in this case the Government did
present substantial extrinsic evidence to establish that the chil-
dren depicted were real minors, including testimony drawn
from the personal investigative experience of various officers
as to the identity and age of some of the children in the photos
Bynum was alleged to have transported or possessed, and tes-
timony from FBI Analyst Peter Smith to the effect that the
images and videos in question depicted real children and did
not appear to be computer-generated. Again, a rational fact
finder could certainly conclude that the Government proved
beyond a reasonable doubt that actual minors appeared in the
photos and videos.
B.
Bynum argues next that the district court erred in admitting
the expert testimony of Analyst Smith because the Govern-
ment failed to demonstrate the reliability of his methods of
determining the authenticity of child pornography. Petr.’s Br.
22-23. "We review for abuse of discretion the district court’s
decision to admit expert testimony under Federal Rule of Evi-
dence 702."4 United States v. Wilson, 484 F.3d 267, 273 (4th
Cir. 2007).
Although not directly addressing the issue, several appel-
late courts have assumed that the testimony of experienced
forensic or medical professionals establishing the authenticity
of alleged child pornography constitutes appropriate expert
4
Federal Rule of Evidence 702 provides as follows:
If scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact
in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form
of an opinion or otherwise, if (1) the testimony is based upon suf-
ficient facts or data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has applied the prin-
ciples and methods reliably to the facts of the case.
UNITED STATES v. BYNUM 11
testimony. See, e.g., Rodriguez-Pacheco, 475 F.3d at 437-39;
United States v. Anderton, 136 F.3d 747, 750 (11th Cir.
1998); United States v. Broyles, 37 F.3d 1314, 1317-18 (8th
Cir. 1994). Even the Supreme Court has noted the use of
experts in this context. See Ashcroft v. Free Speech Coalition,
535 U.S. 234, 254 (2002).
If, as we and other courts have held, "law enforcement offi-
cers with extensive drug experience are qualified to give
expert testimony on the meaning of drug-related code words,"
Wilson, 484 F.3d at 275, it follows that forensic photographic
investigators with extensive child pornography experience are
qualified to give expert testimony as to whether images depict
real children. For Bynum’s claim that Analyst Smith’s
"method has not been tested, or subject to peer review and
publication," and "does not have a[n] . . . error rate," Pet’r Br.
22, also is true of drug-code testimony. And as we observed
in Wilson, the Supreme Court has admonished that "‘the test
of reliability is flexible’ and ‘the law grants a district court the
same broad latitude when it decides how to determine reliabil-
ity as it enjoys in respect to its ultimate reliability determina-
tion.’" 484 F.3d at 274 (quoting Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 141-42 (1999)). We concluded,
therefore, that although "[e]xperiential expert testimony . . .
does not rely on anything like a scientific method," such testi-
mony is admissible under Rule 702 so long as an experiential
witness "explain[s] how [his] experience leads to the conclu-
sion reached, why [his] experience is a sufficient basis for the
opinion, and how [his] experience is reliably applied to the
facts." Id. (internal quotation marks omitted).
Here, as in Wilson, "[w]e have little trouble concluding that
the district court did not abuse its discretion in qualifying
[Analyst Smith] as an expert." Id. Analyst Smith testified at
length as to his 18 years with the FBI, as well as his training
and 13 years of experience in examining "questioned photo-
graphic evidence," his completion of proficiency testing in
image authentication, and his qualification as an expert 35
12 UNITED STATES v. BYNUM
times in the past. He further testified as to exactly the steps
he takes in determining the authenticity of images under the
approved FBI "checklist," including ascertaining an image’s
resolution and focus, examining its sharpness and depth, com-
paring it to images in the FBI database, and identifying in the
image certain human characteristics—like skin, teeth, ears,
and hair—that are difficult to recreate by computer. Finally,
Analyst Smith testified that two other FBI employees always
review his work, and that he has never identified an image as
real that was later determined to be computer-generated.
These ample indicia of reliability preclude a finding that the
district court abused its considerable discretion in qualifying
Analyst Smith as an expert.
Moreover, even if the district court erred in admitting Ana-
lyst Smith’s testimony—which we do not believe to be the
case—the error was clearly harmless because the Government
presented to the jury the images and video, and testimony
from people who knew the actual children depicted in them.
See, e.g., Salcido, 506 F.3d at 734 ("[P]ornographic images
themselves are sufficient to prove the depiction of actual
minors.")
IV.
Finally, Bynum challenges the substantive reasonableness
of his within-Guidelines 192-month sentence. He labels this
sentence "insane," Petr.’s Br. 15, because it is "severe relative
to the sentences imposed on others," id. at 27 (charting aver-
age sentences for various other crimes by offenders in
Bynum’s criminal history category, I). Bynum argues that
"nothing about [him] or the offense" merits this sentence. Id.
at 28.
This argument also fails, for it ignores controlling federal
law. Congress defines federal crimes and establishes the
proper factors to be considered in fashioning a sentence for
those crimes. See 18 U.S.C. § 3553(a) (2006). Under this
UNITED STATES v. BYNUM 13
framework, Congress has determined that when selecting a
proper sentence, the sentences imposed on other defendants
for other crimes are irrelevant. Rather, federal law expressly
limits a sentencing court’s consideration of the sentences of
other criminals to those imposed for "the applicable category
of offense committed by the applicable category of defendant
as set forth" in the advisory Guidelines established by the
United States Sentencing Commission. Id. § 3553(a)(4)(A)
(emphases added); see also id. § 3553(a)(6) (requiring a sen-
tencing court to consider "the need to avoid unwarranted sen-
tence disparities among defendants with similar records who
have been found guilty of similar conduct" (emphases
added)). Bynum makes no effort to demonstrate that his mid-
Guideline 192-month sentence is unreasonably excessive
compared to the sentences of other defendants in the same
criminal history category convicted of crimes in the same
offense level.
Moreover, Bynum does not argue that the district court oth-
erwise unreasonably applied federal law in fashioning his sen-
tence. If he did, such an argument would fail. Although
Congress has deemed Bynum’s personal characteristics and
history relevant in the sentencing analysis, id. § 3553(a)(1),
nothing in Bynum’s past suggests that the district court
imposed a substantively unreasonable sentence in sentencing
him within the advisory Guidelines range. See id.
§ 3553(a)(4) (directing sentencing courts to consider the rec-
ommended Guidelines range). Thus, Bynum can point to no
evidence rebutting the presumption of substantive reasonable-
ness that we afford properly calculated within-Guidelines sen-
tences. See Rita v. United States, 551 U.S. 338, 347 (2007);
United States v. Wright, 594 F.3d 259, 267, 268 (4th Cir.
2010).
In fact, in determining Bynum’s sentence, the district court
expressly refused to consider Bynum’s conduct leading to
2002 child pornography charges, which the Government sub-
sequently dismissed. The court denied the Government’s
14 UNITED STATES v. BYNUM
request for an upward variance and sentenced Bynum—who
uploaded several illicit, and sometimes violent, sexual photos
and video of children to the internet, and on whose computer
authorities found more than 5000 photos and 150 videos of
child pornography—to a within-Guidelines sentence. We can-
not deem this sentence substantively unreasonable.5
V.
The judgment of the district court is therefore
AFFIRMED.
5
Bynum does not argue that the district court committed any procedural
sentencing error. Compare United States v. Thompson, 595 F.3d 544, 546-
48 (4th Cir. 2010). Accordingly, we can only conclude that Bynum has
"abandoned" any such contention. See United States v. Smith, 441 F.3d
254, 274 (4th Cir. 2006). Bynum’s abandonment of this contention distin-
guishes the case at hand from Thompson, in which the appellant forcefully
argued on appeal, indeed devoted his entire appellate brief to the claim,
that the district court committed procedural sentencing error. See Petr.’s
Br. in Thompson, available at 2009 WL 1158702.