Revised March 9, 2001
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 00-40495
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JEFFREY CARL GRIMES,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Eastern District of Texas
_________________________
March 7, 2001
Before SMITH, POLITZ, and PARKER,
Circuit Judges.
1
(...continued)
JERRY E. SMITH, Circuit Judge: knowingly to possess three or more books,
magazines, periodicals, films, video tapes, or other
Jeffrey Grimes appeals his conviction of matter that contain any visual depiction that has
possession of child pornography under 18 been mailed, or has been shipped or transported in
U.S.C. 2252(a)(4)(B).1 He challenges the interstate or foreign commerce, or that was
produced using materials that have been mailed or
so shipped or transported, by any means including
1
Section 2252(a)(4)(B) makes it unlawful by computer, if (a) the producing of such visual de-
(continued...) (continued...)
results of his jury trial on four fronts: that the lems, he discovered that the hard drive was
evidence was insufficient; that the district low on space. After attempting but failing to
court instructed the jury, as a matter of law, to contact Grimes by phone, Watson reached
find a fact essential to conviction; that the Grimes’s wife and advised her of the problem,
search and seizure of his computer violated his suggesting either the purchase of a new hard
Fourth Amendment rights; and that the district drive or allowing him to remove temporary
court abused its discretion in admitting into files, temporary Internet files, and other files
evidence the contents of two sexually-explicit not needed on the computer.
narratives. While disagreeing with Grimes on
the first three issues and on his challenge to the Mrs. Grimes gave permission for Watson to
narratives’ probative value, we vacate and remove files but said she would speak with
remand for a new trial after concluding that Grimes before approving a new hard drive.
the narratives’ prejudicial effect substantially Watson then began deleting temporary Inter-
outweighed their probative value. net files. He testified that he looked for “JPG”
files,2 which are picture files that consume a lot
I. of hard drive space.
On October 17, 1998, Grimes’s wife
brought his computer to a store in Paris, Tex- After locating “JPG files,” Watson
as, for repair, signing a check-in slip and au- continued to follow his standard approach by
thorizing repair work; the slip indicated the opening the files to ensure, before deleting the
computer would not “boot up.” Two days lat- pictures, that they were not personal to the
er, Kevin Watson, a repair technician, began computer owner.3 While opening JPG files,
working on the computer. Watson found approximately seventeen that
contained the images of young, naked girls,
Watson testified that the computer would perhaps six to ten years of age, with pixel
not power on until he had removed a large boxes4 over their “private areas.”5 Thinking
amount of dust from the fan. When he then
performed a standard check of the hard drive
to see whether the computer had other prob- 2
Watson’s testimony included a well-vetted
explanation that the search he performed to locate
JPG files is one that searches all directories to find
1
(...continued) such files and does not just pull files from a
piction involved the use of a minor engaging in specific directory. Watson suggested that this ap-
sexually explicit conduct; and (b) such visual de- proach is also his common practice.
piction was of such conduct. “Sexually explicit
conduct,” as that term is contemplated by § 2252- 3
For instance, if the images were JPG files in
(a)(4)(B), includes actual or simulated “lascivious the user’s temporary Internet files (“TIF’s”), they
exhibition of the genitals or pubic area of any per- might be pictures from a public site that the user
son.” 18 U.S.C. § 2256(2)(E). had visited. As a technical point, only images that
have appeared, at one time, on the computer screen
The statute was amended in 1998 to criminalize become TIF’s.
the possession of one, vice three, visual depictions.
4
Pub. L. 105-314 § 203(a)(1). Grimes’s actions The pixeled pictures have part of the picture
were committed before the effective date of the intentionally blurred or obscured electronically. A
amendment. (continued...)
2
that the images might be “illegal,” Watson warrant.6 Paith then delivered the computer to
called his supervisor, Robert Slider, and the FBI office in Dallas, where its contents
showed him the images. Slider, in turn, were reviewed by FBI computer specialist
thought the images might constitute child Guelda Lambert.
pornography, so he reported the matter to
police detective Danny Huff. II.
Grimes was tried on a superseding
Huff came to the store and viewed the sev- indictment that charged him with one count of
enteen images that Watson had found possession of three or more sexually explicit
originally; Watson showed him only the previ- visual depictions of minors. Specifically, he
ously-found images. Without requesting Wat- was charged with possession of thirteen
son or Slider to search the computer any fur- computer graphic files, each of which
ther, Huff reported the findings to FBI Special contained one image. Lambert further testified
Agent Ken Paith. that Government Exhibits 5(a) through 5(l)
were extracted from Grimes’s computer.
Slider copied the seventeen images onto a Lambert testified that the images were stored
floppy disk, which he gave to Huff, who cop- three subdirectories down in the computer, in
ied them before faxing them to Paith, who a directory called “My Briefcase,” which was
seized the computer after obtaining a search in a directory called “Desktop,” which was in
Windows.
Mike Marshall testified for the government
as an expert witness in the general fields of
4 computers and the specific computer
(...continued)
applications of “DOS,” “Windows,”
common example of pixel-manipulation is when a
person’s face is blurred, with what often look like “Windows 95,” E-Mail, the Internet, and
“fuzzy squares,” on a television screen, so as to ob- functions within those systems such as “My
scure his identity from the viewer. Briefcase.” As part of the government’s
investigation, Lambert had provided Marshall
More technically, a pixel is the smallest discrete with a disk containing the contents of Grimes’s
element of an image, picture, television screen, or hard drive. Marshall confirmed that the series
computer monitor (usually a single-colored dot). It of images in Exhibits 5(a) through 5(l) had
is a set of bits that represents a graphic image, with been stored in the subdirectory “My
each bit or group of bits corresponding to a pixel in Briefcase.” This testimony would be
the image. The greater the number of pixels per important in demonstrating that the pictures
inch, the greater the resolution. A rough analogy to were not somehow accidently on the user’s
painted art is that a pixel is the same as each computer; multiple inputs are required to place
colored dab of a pointillist painting.
files into the subdirectory in which the pictures
5
Not all the government exhibits involved were discovered.
pixeled genitalia. In a few, the girls were nude; in
at least one photograph, the girl’s vagina was fully
6
exposed, with a narrow band of pixels obscuring Grimes attacks the warrant as improper be-
the center of her “private area” but not the entire cause it was based on an illegal search and seizure.
area. In others, larger pixel boxes were used. His motion to suppress was denied.
3
Marshall testified that each of these images Marshall identified Government Exhibits 12
was stored in the subdirectory at a different and 13, which are paper copies of a narrative
time and in the “JPG format.” He also stated or story. Exhibit 12 is entitled “Torture
that the series of images contained in Exhibits Horse,”9 and Exhibit 13 is entitled “Too
5(a) through 5(l)7 all depicted unclothed, Young.” Exhibits 12 and 13 were downloaded
young female children with pixel boxes over by the computer’s end user and stored in the
their genitalia, which boxes were generated by temporary Internet file. Marshall could not tell
a computer on the images after the pictures whether the end user had read either of them.
were taken. In his opinion, the girls were nak-
ed and had their genitals exposed when the
pictures were taken8 Grimes sought to suppress these narratives
as violative of Federal Rule of Evidence
Marshall also identified Government Ex- 404(b). The district court, after
hibits 7a, 8a, and 8b, which were images of reconsideration, allowed their admission to
young girls who were either nude or partially demonstrate intent and state of mind. Brief
nude. He testified that these images were re- passages from these narratives were read to
trieved from the “temporary Int ernet files” in the jury.
Grimes’s computer. Marshall explained that a
“temporary Internet file” is created when any The jury also heard testimony from Paith
of the Windows operating systems is installed regarding his conversation with Grimes at
with an Internet Browser. This temporary Grimes’s residence. During what appears to
cache is a “first in first out” algorithm in which have been only a brief discussion, Grimes ad-
the files most recently viewed on the Internet mitted that he was the chief user of that
by the end user remain in storage for quick computer, that he spent approximately three to
recall. The images contained in Exhibits 7a, four hours per day using it to access the Inter-
8a, and 8b were viewed on the Internet by the net, and that he had accessed Internet sites that
end user. contained pictures of nude, young girls.
Grimes sought to suppress this conversation,
claiming that the interview had been custodial
in nature.
7
Marshall also identified Government Exhib-
it 6, which contained a series of images (not Dr. Clyde Shaw, a pediatric physician, also
charged in the second superseding indictment) sim- testified as an expert witness for the
ilar to those in Exhibits 5(a) through 5(l) and government. He stated that the girls depicted
stored on the “My Briefcase” subdirectory. Mar- in Exhibits 5(a) through 5(l) were under the
shall also established that the computer had age of eighteen. Based on his twenty-five
searched the Internet for news groups using the
search criteria of “alt.japanese.neojapan.lolita” and
that there were at least fifty successful “hits.”
9
“Lolita” is often a code word for child The passage read from “Torture Horse” in-
pornography. volved two eleven-year-old girls and a ten-year-old
girl being sexually abused and tortured by an older
8
The girl in Exhibit 5k was not completely man. The passage read from “Too Young”
naked. Her panties were halfway between her involved a fourth-grade girl who was forced to
knees and hips. perform sexual acts on a security guard.
4
years’ experience, he believed that many of the This circuit, when determining whether a
children in those exhibits were prepubertal or visual depiction of a minor constitutes a “las-
in early puberty and it is atypical behavior for civious exhibition of the genitals or pubic area”
children of this age to display their naked under § 2256(2)(E), applies the six-factor test
bodies. of United States v. Dost, 636 F. Supp. 828
III. (S.D. Cal. 1986), aff’d, 813 F.2d 1231 (9th
Grimes argues that the presence of the pixel Cir. 1987), which we adopted in United States
boxes prevents, as a matter of law, the nude v. Carroll, 190 F.3d 290, 297 (5th Cir. 1999)
photographs of the minor girls from meeting (citing United States v. Knox, 32 F.3d 733,
the statute’s definitional requirements. First, 7846 n.10 (3d Cir. 1994)), vacated and
he asserts that because the genitals were reinstated in relevant part, 227 F.3d 486, 488
blocked out, the photographs fail to meet the (5th Cir. 2000) (per curiam). The factors are:
definition of “lascivious.” Second, and along
the same lines, he argues that because the gen- 1. whether the focal point of the visual
itals are blocked out, they are not “exhibited.” depiction is on the child’s genitalia or
pubic area;
In interpreting the statute, courts begin and
end with the text if it is unambiguous and does 2. whether the setting of the visual
not lead to an absurd result.10 As we have depiction is sexually suggestive, i.e. in a
said, § 2252(a)(4)(B) makes it unlawful place or pose generally associated with
“knowingly [to] possess three or more books, sexual activity;
magazines, periodicals, films, video tapes, or
other matter . . . if (a) the producing of such 3. whether the child is depicted in an
visual depiction involved the use of a minor unnatural pose, or in inappropriate
engaging in sexually explicit conduct; and attire, considering the age of the child;
(b) such visual depiction was of such
conduct.” There are two quest ions: Did the 4. whether the child is fully or partially
production involve the use of a minor clothed, or nude;
engaging in sexually explicit conduct, and was
the visual depiction a depiction of such 5. whether the visual depiction suggests
conduct?11 sexual coyness or a willingness to
engage in sexual activity;
10
Darby v. Cisneros, 509 U.S. 137, 147 6. whether the visual depiction is
(1993); Conn. Nat’l Bank v. Germain, 503 U.S. intended or designed to elicit a sexual
249, 253 (1992); Rubin v. United States, 449 U.S. response in the viewer.
424, 429-30 (1981).
11
The second prong narrows the statute. For
Id. (citing Knox, 32 F.3d at 746). The list is
instance, a child could be used in the production of not exhaustive, and no single factor is disposi-
a photograph, but the image in the ultimate
photograph could be one that did not capture the
11
child engaging in sexually explicit conduct. If this (...continued)
were so, a defendant might be charged under a different statuteSSperhaps child molestationSSbut
(continued...) not child pornography.
5
tive. Id. the statute to be written as Grimes wishes it
were, courts have treated the words
After viewing the photographs, we reject “lascivious” and “exhibition” as a phrase.
Grimes’s challenge to the sufficiency of the Knox, 32 F.3d at 745. Interpreting individual
evidence. It is plain to any viewer that the words in context is a common approach in
producing of these visual depictions involved statutory construction. See Deal v. United
the use of minors engaging in sexually explicit States, 508 U.S. 129 (1993) (observing that it
conduct and that the visual depiction captured is a “fundamental principle of statutory
that activity. construction (and, indeed, of language itself)
that the meaning of a word cannot be
Grimes answers by saying that post- determined in isolation, but must be drawn
production computer alterations brought the from the context in which it is used”).13
photographs outside the statute’s reach. That,
however, is not what the plain language To aid in its interpretation, the Knox court
requires. considered the purpose behind that statute. It
also applied a plain language analysis to de-
The scienter requirement of subsection termine that nothing in the statute required
(1) is applied to the entire clause.12 Even were “nudity.” The Knox court reasoned:
12
. . . Congress aimed the federal child
United States v. Brown, 25 F.3d 307 (6th pornography statute at combatting “the
Cir. 1994) (holding that statute criminalizing re- use of children as subjects of
ceipt of child pornography was constitutional, be-
pornographic materials[, which] is harm-
cause it included scienter requirement as to nature
ful to the physiological, emotional, and
and character of proscribed materials); United
States v. Schmeltzer, 20 F.3d 610 (5th Cir. 1994) mental health of the child.” New York v.
(holding that statute prohibiting possession of por- Ferber, 458 U.S. 747 (1982). In so do-
nographic materials depicting children was con- ing, Congress defined the “lascivious ex-
stitutional as applied to defendant who admitted hibition of genitals or pubic area” as one
that he knew the items he possessed depicted mi- variety of “sexually explicit conduct”
nors); United States v. Burian, 19 F.3d 188 (5th proscribed by the statute. Thus, we find
Cir. 1994) (holding that statute prohibiting
knowingly receiving in the mail visual depictions of
minor children engaged in sexually explicit conduct 12
(...continued)
was not unconstitutional as applied to defendant which it appeared, including parts of clause that
who ordered through the mail sexually explicit referred to conduct and age of persons depicted in
material depicting teens, despite defendant’s materials; thus, statute did not unconstitutionally
contention that statute did not require knowledge of fail to include scienter requirement).
performer’s minority as element of crime it defined;
13
statute did require such knowledge, and defendant Although they are not before us, we can
knew that tapes he possessed depicted minors imagine situations in which a person came into
engaged in sexually explicit conduct); United possession of a picture that was so altered and so
States v. Gendron, 18 F.3d 955 (1st Cir. 1994) changed that he could not discern that the
(concluding that “knowingly,” as used in child production had involved a minor engaged in
pornography statute, modified entire clause in sexually explicit conduct. In such a case, the
(continued...) government might not be able to prove knowledge.
6
it more meaningful to focus on the characterization of United States v. Villard,
ordinary meaning of the statutory 885 F.2d 117 (3d Cir. 1989) that Grimes urges
term “lascivious exhibition,” rather to us. He asserts that Villard’s logic suggests
than simply focusing on the term that the statutory term “pubic area” is
“exhibition” divorced entirely from analogous to the medical meaning. The Third
the context in which it was used. Circuit disagrees and characterizes Villard’s
holding as “the obvious principle that nudity
The term “lascivious” is defined as alone is insufficient to constitute lascivious ex-
“[t]ending to excite lust; lewd; indecent; hibition.” Id. at 750. To hold otherwise
obscene; sexual impurity; tending to de- would outlaw many works of art or family
prave the morals in respect to sexual re- photos of, say, naked children in bathtubs.
lations; licentious.” Black’s Law Dic- Id.15
tionary 882 (6th ed. 1990). Hence, as
used in the child pornography statute, The Knox court stopped short of saying
the ordinary meaning of the phrase “las- that the Dost factors are the only considera-
civious exhibition” means a depiction tion. That court believed that, even without a
which displays or brings forth to view in requirement for nudity, the statute does
order to attract notice to the genitals or require a threshold inquiry into whether the
pubic area of children, in order to excite depiction visually exhibits the genitals or pubic
lustfulness or sexual stimulation in the areas. Id. at 751. That court considered the
viewer. Such a definition does not con- Dost factors useful in making this threshold
tain any requirement of nudity, and inquiry, as we do. Again, however, our case is
accords with the multi-factor test distinguishable from Knox, because in Knox
announced in United States v. Dost for the court faced a set of native photographs in
determining whether certain material which the production did not involve nude
falls within the definition of 18 U.S.C. children, but, instead, minors wearing tight,
§ 2256(2)(E). Nor does such a revealing clothing. The Knox court faced a
definition contain or suggest a more difficult question than do we.
requirement that the contours of the
genitals or pubic area be discernible or Even under a post-alteration analysis, the
otherwise visible through the child photos Grimes had in hand revealed ample ex-
subject’s clothing. hibition and lasciviousness both to meet the
threshold inquiry and to allow a reasonable ju-
Knox, 32 F.3d at 745-46.14 ror to vote for conviction. Grimes would have
us quibble with the jury’s evaluation.
The same court specifically rejected the
15
Grimes’s brief contains a footnote explaining
14
Later, the Knox court noted that were the when nude photographs have not been found to be
statute found to be ambiguous, which it believed “obscene.” Obscenity, however, is governed by a
was not the case, then the legislative history, which different inquiry, known as the Miller test. See
shows that Congress explicitly removed the Miller v. California, 413 U.S. 15 (1973). The
requirement for nudity from a draft, supported its purposes and language behind the relevant statutes
holding. Knox, 32 F.3d at 748. support a continued distinction between these tests.
7
Although undoubtedly many cases involving IV.
computer-altered photographs of minors will Grimes claims that the district court
follow this one, and such post-photograph instructed the jury that it must, as a matter of
computer manipulation will present courts law, find a fact that was essential to
with difficult factual and legal questions, the conviction, to-wit, the lascivious exhibitions of
instant matter is not one of those cases. the girls’ genitals or pubic areas, had been
established by the evidence. The court did
To ignore the plain-meaning approach not, in fact, instruct the jury to find a fact, nor
would undermine several of the statute’s pur- did it disturb the written instructions it had
poses, on which the Supreme Court has relied read to the jury before the final arguments.
when discussing this statute and the issue of
child pornography generally. The Court has Grimes’s contention is based on a portion
recognized that the psychological effect of vi- of a comment, which he lifts out of context
sually recording the sexual exploitation of a and in doing so misrepresents the court’s
child is devastating, and its elimination is of remarks.16 From our review, it seems the
“surpassing importance.” New York v. Ferber,
458 U.S. 747, 757 (1982).
16
Grimes’s complaint focuses on the “must
Additionally, controlling the production and have been engaged in” phrase in the following
dissemination of child pornography is of portion of the instruction:
paramount importance, because pedophiles of-
ten use child pornography to seduce other chil- The Court: “Okay. Now, Mr. Rogers,
I may need to stop you here because I think
dren into performing sexual acts. Osborne v.
you’re having two different arguments here
Ohio, 495 U.S. 103, 111 (1990). These harms and the Jury’s going to have a question in
occur during the first stepSSthe photographing their mind and I want to give you time to
of the lasciviously exposed minorSSof what is finish your argument here.
later a computer-altered photograph. The
Knox court, having considered these purposes, Ladies and Gentlemen, what’s required,
was persuaded that if you’ll look on page 7 of your instructions
there, what’s required is that the minors, if
where the child is treated as a sexual you find these persons in these photographs
object, the permanent record of this em- to be minors, must have been engaged in
barrassing and humiliating experience sexually explicit conduct at the time of the
produces the same detrimental effects to photograph.
the mental health of the child as a nude
portrayal. The rationale underlying the One of the definitions of ‘sexually
explicit conduct’ is a lascivious exhibition
statute’s proscription applies equally to
of the genitals or pubic area of any person.
any lascivious exhibition of the genitals So, the question is whether or not, at the
or pubic area whether these areas are time of the photograph, the minors, if they
clad or completely exposed. are minors, were engaged in the lascivious
exhibition of their genitals or pubic areas.
Knox, 32 F.3d at 750.
You’ll have to decide whether or not,
(continued...)
8
court merely attempted to make plain that not meet this test.
there is a two-step inquiry: (1) Are the images
of minors? (2) If so, the jury must also decide First, the government was not involved in
whether the minors were engaged in the the initial discovery of the images. Second,
lascivious exhibition of their genitals or pubic when the private parties initially discovered the
area. This was an aid, not an error. images, they did not act with the intent to as-
sist law enforcement officials. The employees
V. did, however, intend to aid officials after the
Grimes sought to suppress the images, discovery of the images and their initial belief
contending that they were seized in violation in the images’ illegality, but this is a different
of the Fourth Amendment. He claims that the inquiry.
store’s search went beyond the permission giv-
en by his wife, thereby invalidating any The next consideration is whether, after the
evidence that flows from the search. The ini- private search, the person continues to possess
tial search, being private in nature, is not sub- a reasonable expectation of privacy. Id. at
ject to Fourth Amendment analysis, unless the 1020. Paige involved a homeowner, in which
private individual was acting as an agent of, or case the expectation of privacy is often at its
with the participation of, a government highest. As for a case with facts more
official. United States v. Jacobsen, 466 U.S. analogous to ours, we consider United States
109, 113 (1984) (citing Walter v. United v. Hall, 142 F.3d 988 (7th Cir. 1998), in which
States, 447 U.S. 649, 662 (1980), and a co mput er repairman found child
suggesting that any invasion of a defendant’s pornography and called police. When they
privacy rights by law enforcement officers that arrived, the repairman showed the officer the
occurs after a private search is tested by the items he had found. All of these items were
degree to which it exceeds the scope of the admitted.
private search).
The pre-warrant images viewed by Huff
In United States v. Paige, 136 F.3d 1012, and Paith were discovered during a private-
1018 (5th Cir. 1998), we discussed the two- party search, completed following standard
part test for determining when a private party company practice; were within the scope of
is a government actor under the Fourth the original private-party search; and were in
Amendment: (1) whether the government an area where Grimes no longer possessed a
knew or acquiesced in the intrusive conduct reasonable expectation of privacy. For three
and (2) whether the private party intended to reasons, then, the images are immune to
assist law enforcement efforts or to further his Grimes’s Fourth Amendment challenge.
own ends. The computer store employees do
VI.
Grimes challenges the admission of the two
16
(...continued) sexually-explicit narratives, claiming they are
given the fact that there are computer stale and prejudicial. We review for abuse of
generated pixels over the pubic area discretion the admission of evidence pursuant
and genitals, whether or not, at the time to rule 404(b). United States v. Bermea, 30
they were photographed, they were F.3d 1539 (5th Cir. 1994).
engaged in this exhibition.
9
Rule 404(b) states: function of the degree of similarity between
the extrinsic act and the offenses charged.
(b) Other crimes, wrongs, or acts. This means more than the existence of a com-
Evidence of other crimes, wrongs, or mon characteristic. For purposes of the Bee-
acts is not admissible to prove the chum test, the common characteristic must be
character of a person in order to show “the significant one for the purpose of the in-
action in conformity therewith. It may, quiry at hand.” United States v. Guerrero,
however, be admissible for other 650 F.2d 728, 733 (5th Cir. Unit A July 1981)
purposes, such as proof of motive, (citations omitted).
opportunity, intent, preparation, plan,
knowledge, identity, or absence of Grimes asserts that the evidence failed both
mistake or accident. aspects of the Beecham inquiry. We disagree;
the evidence was highly relevant, even
This court adopted a two-pronged inquiry probative as to three issues.18 Unfortunately,
in United States v. Beechum, 582 F.2d 898 it also was exceedingly prejudicial, because of
(5th Cir.1978) (en banc), which is now its inflammatory nature.
considered the settled approach. “First, it
must be determined that the extrinsic offense The narratives were relevant, despite
evidence is relevant to an issue other than the Grimes’s offered stipulation, which came after
defendant’s character. Second, the evidence the government convinced the district court to
must possess probative value that is not change its mind and admit the narratives, that
substantially outweighed by its undue the images did not belong to anyone else.
prejudice and must meet the other Normally, if intent is not at issue, then
requirements of Rule 403.” Id. at 911. extrinsic evidence is not admissible. United
Federal Rule of Evidence 403 provides: States v. Roberts, 619 F.2d 379, 383 (5th Cir.
“Although relevant, evidence may be excluded 1980). But, the defendant must affirmatively
if its probative value is substantially remove the issue of intent, not just promise not
outweighed by the danger of unfair prejudice, actively to contest the issue. Id.
confusion of the issues, or misleading the jury,
or by considerations of undue delay, waste of Grimes also challenges the narratives’ rel-
time, or needless presentation of cumulative evance by arguing that the time of one year
evidence.” between the downloading of the narratives and
the pictures fatally reduces the narratives’ pro-
In applying the first prong of the Beechum bative value. Grimes’s case survey on this is-
test, courts first consider whether the evidence
is relevant.17 Where that evidence involves an
extrinsic act, its relevancy under Beechum is a 18
The government was required to demonstrate
that Grimes knew the images were of minors; that
he knowingly possessed the images; and that it was
17
To be relevant, evidence must tend to make he, and not a family member, who possessed them.
the existence of some fact that is of consequence to The narratives would help show that the possession
the determination of the action either more or less of the photographs was unlikely an accident when
probable than it would be without the evidence. a person was also downloading narratives that
FED. R. EVID. 401. involved sexual contact between adults and minors.
10
sue, however, is incomplete. ture from the photographs: The narratives de-
pict violent rapes and moderate torture, while
This circuit has had several opportunities to the photographs, though coerced,21 depict no
consider the effect of time on the probity of a violence. The government defended that the
piece of evidence. In United States v. Byers, potential prejudice was mitigated, because
600 F.2d 1130 (5th Cir. 1979), we affirmed possessing the narrat ives is not a criminal of-
the admission of a relevant extrinsic offense fense. Normally, the danger of a jury’s reprisal
that had occurred one month before the for unpunished extrinsic activity is likely to be
charged offense. Another example is United less when the activity is merely “bad” and not
States v. Hitsman, 694 F.2d 443 (5th Cir. criminal. Beecham, 582 F.2d at 914 n.17.
1979), in which we affirmed admission of a
college transcript and a conviction of the sale Having read the narratives, we cannot agree
of marihuana, both of which were two or three with the district court’s decision and are
years before the charge at issue. Ten years, unpersuaded by the government’s argument.
however, was too great a gap in time.19 In The narratives are vile in their graphic and vio-
light of our precedent and the statute’s lent nature: young girls in chains, a young girl
elements, the narratives were relevant.20 in handcuffs, and references to blood, for
example. Perhaps on retrial the government
Grimes also objected to the second Bee- can redact a different portion of the narratives
cham inquiry, prejudice. The court admitted and attempt to reintroduce them. Should it at-
that the narratives were prejudicial and even tempt to do so, it should be wary of
noted that they were of a different sexual na- introducing gruesome violence, in light of the
fact that the charged pictures are non-violent
in nature.
19 We announce no generalization concerning
See United States v. Carter, 516 F.2d 431
(5th Cir. 1975) (holding that five illicit liquor of- whether it is ever appropriate to introduce
fenses could not be admitted to show specific intent such evidence, for in some cases the
to violate an internal revenue liquor law). government may have no other source of
extrinsic evidence to prove elements of the
20
Grimes also complains that Marshall testified offense. Perhaps then, the balance between
that he could not be certain whether the narratives relevance and prejudice will tilt in the other
had been read. This raises a proof-of-extrinsic- direction. See United States v. Goodwin, 492
offense issue. Unlike owning the photographs, F.2d 1141 (5th Cir. 1974). In this instance,
owning the narratives was not an offense. however, using the appropriate balancing test,
Normally, even where extrinsic evidence involves the “pro bative value is substantially
an offense, the government need only produce evi- outweighed by the danger of unfair prejudice.”
dence that would withstand a directed verdict on
Rule 403.
the extrinsic offense. United States v. Jimenez,
613 F.2d 1373 (5th Cir. 1980) (citing Byers).
The judgment is VACATED, and this mat-
The nature of TIF’s suggests there was “some”
evidence that Grimes read these narratives. While
21
users may not know that TIF’s are created, that By the very fact that the photographs involve
occurs only once an item appears on the user’s minors, who are unable to consent, the photographs
screen. are “coerced.”
11
ter is REMANDED for further proceedings
consistent with this opinion.
12