UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 93-4998
United States of America,
Plaintiff-Appellee,
VERSUS
Gary Jefferson Byrd,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Louisiana
( )
Before REYNALDO G. GARZA, DeMOSS and PARKER*, Circuit Judges.
DeMOSS, Circuit Judge:
A jury convicted defendant-appellant Gary Jefferson Byrd of
one count of receiving child pornography through the mail. The
crime occurred on July 29, 1987, but Byrd was not indicted until
April 16, 1992,2 and he was convicted on December 14, 1992. Byrd
*
In May 1994, when oral arguments were heard in this appeal,
Judge Robert M. Parker was chief judge of the Eastern District of
Texas, sitting on the appellate panel by designation. As of the
date of this opinion, Judge Parker has been confirmed as a judge
on the United States Fifth Circuit Court of Appeals.
2
On August 7, 1992, a Fifth Circuit panel reversed Judge
Haik's order to incarcerate Byrd without bail before trial.
United States v. Byrd, 969 F.2d 106, 111 (5th Cir. 1992)(per
curiam opinion by Jolly, Jones and Wiener, Circuit Judges).
received a pre-Guidelines sentence of 10 years in prison and a
$65,000 fine. Byrd appeals his conviction and sentence. Finding no
basis for reversal, we AFFIRM.
FACTS
In May 1986, Byrd, then a psychiatrist in Opelousas,
Louisiana, was targeted by an undercover child pornography "sting"
operation. Agent William Shearer, a U.S. postal inspector based in
New Orleans, chose Byrd for the sting after receiving a tip from a
state police officer that Byrd was suspected by the Louisiana
Department of Health and Human Resources ("D.H.H.R.") of over-
sedating and sexually abusing a child.3 The federal sting involved
correspondence between Byrd and government investigators posing as
the fictitious organizations "Freedom's Choice" and "Unique Video
Imports." The important events and dates4 are set out below:
! May 6, 1986: Byrd receives a "Sexual Preference Questionnaire"
and "introduction letter" from "Freedom's Choice," which purported
to be "an association concerned with the preservation of sexual
freedom" offering to confidentially introduce "sexually liberated
adults" to others with similar sexual preferences and help people
find "friends they need for support when they become depressed over
society's narrow-minded condemnation of their personal
preferences."
3
The D.H.H.R. ultimately closed this investigation and never
made any finding that Byrd had committed such acts.
4
The date and content of each item of correspondence is
listed in detail because Byrd has claimed entrapment by the
government, and the most recent Supreme Court case on entrapment
and child pornography, Jacobson v. United States, 112 S.Ct. 1535
(1992), places importance on the chronology and character of the
government's solicitations and the defendant's responses. Byrd
does not dispute that he received and sent the correspondence at
issue.
2
! May 21, 1986: Byrd fills out and mails back the "Sexual
Preference Matching Questionnaire," using the false names of "Mr.
and Mrs. James B. McIntosh" and indicating that he was interested
in photos and VHS videotapes of pre-teen homosexual activity, pre-
teen heterosexual activity, and sadomasochism. The form asked
respondents to certify that "I am not a law enforcement officer of
any kind attempting to entrap anyone." Byrd also hand-wrote on the
form: "No letters, no personal contacts. Only merchandise catalogs
or listings."
! May 29, 1986: "Freedom's Choice" sends a form letter to
Byrd/"McIntosh" assigning him a confidential code number and
providing him with two code numbers of "parties with similar
interests."
! June 13, 1986: Byrd/"McIntosh," sends two identical letters to
the code numbers provided, stating that he and "Mrs. McIntosh" are
not interested in correspondence or personal contact with anyone,
but "we are interested in receiving listings of VHS videotapes,
descriptions of photographs, descriptions or listings of novels or
topics of written materials related to the topics previously
annotated. Our interest lies in possibly ordering selected items
only for educational and research purposes."
! December 23, 1986: "Freedom's Choice" sends a letter to
Byrd/"McIntosh" informing him that his name and address have been
referred to "a supplier of unique, hard-to-obtain material," and
that "you should be hearing from this party shortly."
! January 26, 1987: "Unique Video Imports" mails
Byrd/"McIntosh" a list and order form describing sexually oriented
videotapes for "standard viewers," and also informing him that a
catalog for the "Miniature Erotica Collection" for "special
viewers" is also available upon request. "Miniature Erotica" is
described as "exotic videos" featuring "Lolita and Wonderboy5
talent" that are "often difficult, if not impossible, to find."
! February 20, 1987: "Unique Video Imports" receives the completed
video order form back from Byrd/"McIntosh." He did not order any
"standard" videos, but he checked a box requesting the "Miniature
Erotica Collection."
! February 27, 1987: "Unique Video Imports" mails to
Byrd/"McIntosh" a "Miniature Erotica Collection" order form and
list describing six 30-minute videos purporting to depict explicit
sexual activity by children ranging from age 5 to 16.
5
Testifying for the government at trial, a federal postal
inspector familiar with the child pornography subculture stated
that the terms "miniature erotica," "Lolita" and "Wonderboy" are
terms used by that subculture to mean child pornography.
3
! March 2, 1987: Byrd/"McIntosh" fills out and sends in the
"Miniature Erotica" order form, ordering two videotapes and
enclosing money orders for payment. Byrd chose two tapes from the
following descriptions:
"CARNIVALE: Hector celebrates gala festival with Juan, 5
years, Pablo, 7 years, and Roberto, 9 years. All four have
great celebration with mutual masturbation, oral and anal
sex."
"SCHOOL DAYS: Marco, 14 years, Krista, 13 years, and Bette,
12 years, unwind after a hard day at lessons. Interesting
masturbation and oral sex, slight penetration."
! July 15, 1987: Byrd, in his own name, calls Agent Shearer's
office in New Orleans and leaves a message.
! July 16, 1987: Byrd (using his own name) and Agent Shearer have
a telephone conversation in which Byrd tells Shearer he has
information about child abuse rings in the Opelousas area. In
contrast to his later claims, Byrd in this conversation did not
tell Shearer that he was aware of any ongoing undercover operation,
or that he was attempting to perform some kind of "reverse sting"
against that operation, or that he had ordered child pornography
tapes through the mail for any purpose.
! July 29, 1987: Undercover officers from the U.S. Postal Service
make a controlled delivery of the two ordered videotapes to Byrd's
residence in Opelousas. Byrd was not home at the time of the
delivery, but a cook employed by Byrd answered the door at Byrd's
house, accepted delivery of the tapes and paid the postage due. A
short time later, Byrd arrived home. Around the same time,
government agents began a search of Byrd's residence pursuant to a
search warrant. After Agent Shearer arrived a few minutes into the
search, Byrd received his Miranda warnings and consented to be
interviewed.
During the interview at his home on July 29, 1987, Byrd
initially denied ever using the name "McIntosh" or ever ordering
child pornography. He denied ever receiving or seeing any mail
addressed to "McIntosh." Agent Schearer then confronted Byrd with
the package containing the two child pornography tapes that had
been delivered to "Mr. and Mrs. McIntosh" at Byrd's address. Byrd
stated that he wasn't at home when the package was delivered. He
then stated that mail addressed to McIntosh had arrived at his
4
address before, but he did not know what had happened to it. The
search of Byrd's house was still going on at this point. Later in
the interview, Byrd was confronted with the "McIntosh file" with
copies of the correspondence described above, which Byrd had
compiled and which was found in his attic during the search.
Initially, Byrd said the file was an old patient file. Later, he
stated that it was a research file. At this point in the interview,
Byrd began a rambling discourse with Agent Shearer, talking in very
general terms about an investigation he was conducting into a
pedophile ring involving the Catholic Church, the Louisiana
D.H.H.R. and various high-level government officials. Byrd told
Shearer he had been to Shearer's office that same day, July 29,
1987, to give him evidence involving these matters. Changing his
story again, Byrd then admitted that he has ordered the child
pornography videos under the name of McIntosh, but stated that he
had done so for research involving the D.H.H.R. and the pedophile
rings.
Two young boys present in Byrd's home at the time of the
search were also interviewed by government agents. During 1986 and
1987, Byrd had custody of two foster children, Brian, then 6 years
old, and Shaun, then 8 years old. On the day of the search, Byrd's
foster sons helped the agents to locate the seized evidence
described below.
In addition to the "McIntosh file," several boxes of evidence
were seized from Byrd's residence, including: (1) a series of
Polaroid photographs of nude boys with crudely written color-coded
5
descriptions of bruises and red marks on the boys' buttocks caused
by paddling; (2) another series of Polaroid photos, most of teen
and pre-teen boys with their bare buttocks exposed; (3) a manila
folder labeled "Michael & John Michael Special Project Folder,"
which contained a hand-written questionnaire graphically describing
homosexual and heterosexual sex acts involving children; (4) a
picture book titled "Show Me," containing explicit photographs of
nude children and nude adults discussing and engaging in sexual
activity, which was designed to satisfy children's curiosity about
sex; (5) seven wooden paddles which Byrd admitted he used to spank
his young foster sons, sometimes taking photographs afterwards to
"document" the bruises on their buttocks.
The agents interviewed Byrd's foster sons, Brian and Shaun, on
the day of the search, and Shaun later testified at trial. Both
boys had come from abusive homes and had some behavioral problems.
Byrd had been attempting unsuccessfully to adopt Shaun and had had
disagreements with the D.H.H.R. in connection with the adoption
process. Both boys slept every night with Byrd in his bed. Byrd
testified that the sleeping arrangements were because of the boys'
fear of the dark. However, Shaun testified at trial that he was not
afraid of the dark and had expected to have his own room, but that
he slept with Byrd because "that was his wishes."
Shaun testified that Byrd put his hand inside Shaun's
underwear and fondled the boy's genitals while they were in bed at
night. Shaun was 14 years old when he testified at trial, and he
had been 8 and 9 years old at the time of the fondling. He said
6
Byrd touched his genitals almost every night, and that he didn't
tell anyone right away because he didn't know that it was wrong,
and because "he said he was my dad." Shaun also testified that Byrd
spanked him on the bare buttocks with paddles almost every day,
hard enough to leave bruises and bright red marks, as punishment
for misbehavior.
Another child, Kevin, also testified at trial that Byrd had
fondled him when he came to the house to visit Brian and Shaun and
spend the night. Kevin, 18 years old at the time of trial, was 13
when the fondling occurred. In a deposition taken when he was 14
years old, Kevin had denied being fondled. When he was cross-
examined at Byrd's trial with the contradictory testimony, Kevin
stated that he had been ashamed back then to tell anyone about the
fondling. In separate testimony, Byrd stated that he had paddled
Kevin at least twice. One of the photographs introduced into
evidence showed Kevin asleep in Byrd's bed with his underwear
pulled down to show the paddle marks.
The boys' stories and the items seized on July 29, 1987
prompted Louisiana prosecutors to bring criminal charges of sexual
battery against Byrd. The state charges were ultimately dismissed
on September 6, 1991.6 Thereafter, at the request of the U.S.
6
In the state prosecution, Byrd's motion to suppress
evidence was granted by the trial court. The suppression ruling
was reversed on appeal, but the sexual battery charges were
ultimately dismissed, either because the prescription period had
run out or for failure of the district attorney to comply with
the speedy trial requirements of the state of Louisiana. Byrd
claims that the charges were dropped in part because the boys
recanted their stories. The United States, in contrast, states
that the dismissal of the Louisiana charges was not a result of
7
Customs Service and U.S. Postal Service, federal prosecutors in the
Western District of Louisiana took a renewed interest in the
matter, and Byrd was indicted on April 16, 1992 on a federal charge
of knowing receipt of child pornography.7
ISSUES
Byrd challenges his conviction and sentence, claiming numerous
grounds for reversal. We will address four main issues: (1) Whether
the evidence was sufficient to support the jury's finding that Byrd
was predisposed to receive child pornography; (2) whether the trial
court abused its discretion in refusing to dismiss the case for
pre-indictment delay; (3) whether the trial court abused its
discretion in denying Byrd's motion to suppress; and (4) whether
Byrd's sentence was excessive.8
ANALYSIS
Entrapment and Predisposition
Byrd claims the government, by its sting operation, entrapped
him into ordering the child pornography tapes. He relies heavily on
the Supreme Court case of Jacobson v. United States, 112 S.Ct.
any deficiency in the quality of the state's case for sexual
battery.
7
The statute in effect at the time of the offense in 1987
provided penalties for "[a]ny person who knowingly receives ...
any visual depiction that has been ... mailed ... if the
producing of such visual depiction involves the use of a minor
engaging in sexually explicit conduct; and such visual depiction
is of such conduct." 18 U.S.C. § 2252(a)(2) (West 1984).
8
Byrd also challenges several evidentiary rulings by the
trial court, complains that his requested jury instructions were
refused and argues that he should receive a new trial because the
district judge was biased against him. We find no merit in these
contentions.
8
1535, 1543 (1992). It is well-settled that government agents may
use undercover agents to enforce the law, and may even employ
"artifice and stratagem," Sorrells v. United States, 287 U.S. 435,
441 (1932).
"In their zeal to enforce the law, however, Government agents
may not originate a criminal design, implant in an innocent
person's mind the disposition to commit a criminal act, and
then induce commission of the crime so that the Government may
prosecute."
Jacobson, 112 S.Ct. at 1540. When the government, by use of a sting
operation or otherwise, has induced an individual to break the law,
and the defense of entrapment is at issue, the prosecution must
prove beyond a reasonable doubt that the defendant was inclined to
commit the criminal act even before he was approached by government
agents. Id. at 1540. The facts in Byrd's case are somewhat similar
to the facts in Jacobson. Keith Jacobson was also targeted by a
government sting. Over a two-and-a-half-year period, the government
sent Jacobson numerous letters, questionnaires and communications
from five different fictitious sexually oriented organizations.
Jacobson eventually ordered and received a child pornography
magazine and was prosecuted under 18 U.S.C. § 2252(a)(2). An Eighth
Circuit panel initially reversed Jacobson's conviction, but on
rehearing en banc, the full Eighth Circuit affirmed the conviction.
The Supreme Court, in a 5-4 decision, reversed on the basis that
the government failed to prove beyond a reasonable doubt that
Jacobson was independently predisposed to commit the crime of
receiving child pornography through the mail. Jacobson, 112 S.Ct.
at 1543.
9
Because the government has the burden to prove predisposition,
the issue is in essence a challenge to the sufficiency of the
government's evidence. The appellate court must therefore accept
every fact in the light most favorable to jury's guilty verdict,
and may reverse only if no rational jury could have found
predisposition beyond a reasonable doubt. United States v.
Sandoval, 20 F.3d. 134, 137 (5th Cir. 1994).
Jacobson held that when an undercover agent merely offers a
person the opportunity to break the law, and the person eagerly
does so -- as in a typical illegal drug sting -- the person's ready
commission of the crime amply demonstrates predisposition. In such
a case, the defendant is usually not entitled to a jury instruction
on the entrapment defense. Jacobson, 112 S.Ct. at 1541. But in
Jacobson, the government sent the defendant correspondence for more
than two years that (1) exerted pressure on him to join their
lobbying battle for "freedom of choice" and repeal of "oppressive"
pornography laws; (2) decried "international censorship," and
called the concern about child pornography "hysterical nonsense";
(3) suggested that purchase of such materials should be legal; (4)
assured Jacobson that if he ordered their materials, the package
could not legally be opened for inspection without authorization
from a judge; (5) repeatedly played on what they knew to be
Jacobson's "general inclination" to view sexually oriented
photographs of young men and boys; and (6) asked Jacobson to affirm
that he was not a government agent attempting to entrap the mail
order company or its customers. Id. at 1542-43. Jacboson's
10
responses indicated some interest in pre-teen and teenage
sexuality, but he also stated specifically that he was opposed to
pedophilia. Jacobson seemed more interested in the theme of
lobbying for changes in the law and fighting censorship. In
response to a survey question, Jacobson wrote:
"Not only sexual expression but freedom of the press is
under attack. We must be ever vigilant to counter attack
right wing fundamentalists who are determined to curtail
our freedoms."
Jacobson, 112 S. Ct. at 1538. He was supplied with code numbers of
potential "pen pals," but did not initiate any correspondence. A
government investigator nevertheless began writing to Jacobson
through the code number system, and Jacobson wrote two letters in
response. Jacobson's letters never mentioned child pornography; he
mentioned only an interest in "good looking young guys (in their
late teens and early 20's) doing their thing together." After two
letters, Jacobson stopped writing. Despite Jacobson's seeming lack
of interest, the government, using two different fictitious
organizations, continued to send Jacobson brochures advertising
photographs of young boys engaging in sex and letters discussing
the fight against censorship. Jacobson finally succumbed to his
curiosity and placed an order for a child pornography magazine. The
Supreme Court held:
"Although [Jacobson] had become predisposed to break the law by
May 1987, it is our view that the Government did not prove that
this predisposition was independent and not the product of the
attention that the Government had directed at petitioner since
January 1985."
Id. at 1541. Byrd argues that Jacobson requires the government to
prove predisposition only by evidence that existed before the
11
government began its solicitation. This argument misstates the
Jacobson holding. We agree with the Eleventh Circuit's reasoning in
United States v. Aibejeris, 28 F.3d 97 (11th Cir. 1994):
"Aibejeris makes the argument that [Jacobson] requires
the government to prove that it had evidence that
Aibejeris was disposed to commit the underlying crime
prior to engaging in an investigation of him. This is an
incorrect reading of Jacobson. That case does not stand
for the proposition that the government must have
evidence of predisposition prior to investigation.
Rather, Jacobson holds that the government must prove at
trial beyond a reasonable doubt that the defendant was
actually predisposed to commit the underlying crime
absent the government's role in assisting such
commission."
Aibejeris, 28 F.3d at 97. Although we recognize that, by
definition, predisposition must exist before government
intervention, we believe the crucial holding of Jacobson is that
predisposition must be independent of government action. Evidence
of the defendant's ready response to the solicitation, as well as
evidence of independently motivated behavior that occurs after
government solicitation begins, can be used to prove that the
defendant was predisposed, i.e., ready and willing to order child
pornography even before he was contacted by the government.
In this case, Byrd's eager and prompt response to each
government mailing illustrates his predisposition. Only a few weeks
after the first government contact, Byrd returned the
questionnaire, indicating that his only interests were in VHS
videotapes of pre-teen sexual activity and sadomasochism. He also
hand-wrote a message on the form specifically requesting
"merchandise catalogs and listings." About two weeks after the next
government reply, Byrd wrote two letters again specifically asking
12
for "listings of VHS videotapes" and other materials on "the topics
previously annotated." When the government sent a listing of
available videotapes, Byrd again responded before a month had
passed. Byrd ignored the adult pornography selections, but instead
requested "Miniature Erotica," which was identified in expert
testimony as a subculture term for child pornography. The
government complied with Byrd's request and sent the list of
available child pornography tapes, which were described in explicit
language that left no doubt as to their content. Again, Byrd showed
no hesitation; he mailed his order for two videotapes within five
days, enclosing money orders for payment. These actions do not show
entrapment. The government "simply offered [Byrd] the opportunity
to order child pornography through the mails," and Byrd "promptly
availed himself of this criminal opportunity." See Jacobson, 112 S.
Ct. at 1541. Byrd's repeated requests for catalogs of pre-teen sex
videos -- and his prompt ordering of such tapes as soon as he
received the catalog -- constitutes a "ready commission of the
crime" and amply demonstrated his predisposition. Id. In contrast,
Jacobson did not go out of his way to request video catalogs. His
responses to the various surveys indicated an "above average" but
not "high" interest in preteen and teenage sexuality, and he
responded most enthusiastically to the correspondence discussing
freedom of choice and lobbying battles against censorship. When
Jacobson's home was searched, investigators found only the one
nudist magazine that had prompted the sting investigation and the
materials the government had sent. No additional evidence ever
13
linked Jacobson to pedophilia or child pornography.
In Byrd's case there was more evidence, in addition to his
demonstrated eagerness to order child pornography, that showed
Byrd's predisposition to order such materials both prior to and
independent of the government's solicitations.9 Some of the
evidence existed before the government sting began. The "Show Me!"
book10 was purchased in 1981, and Byrd testified that he compiled
the "Michael & John Michael Special Project File," a sexually
explicit questionnaire for 9-year-old boys, in 1981, years before
9
Much of this additional evidence tended to prove that Byrd
had an abnormal sexual attraction to children that progressed to
the point of inappropriate and illegal behavior with children in
his home. For the reasons we will explain in this opinion, we
conclude that the link in this case between child pornography and
pedophilia is strong enough that evidence of Byrd's pedophilic
behavior was properly used to show his predisposition to order
and receive child pornography through the mail. The Supreme Court
has recognized the link between child pornography and pedophilia,
noting that pedophiles often use such materials to seduce their
child victims into sexual activity. Osborne v. Ohio, 110 S. Ct.
1691, 1697 & n.7 (1990). In addition, there is evidence that
child pornography may induce viewers to commit sex crimes on
children. David B. Johnson, Why the Possession of Computer-
Generated Child Pornography Can Be Constitutionally Prohibited, 4
ALB. L.J. SCI. & TECH. 311, 326 & n.141 (1994)(citing 1 U.S. Dep't
of Justice, Attorney General's Commission on Pornography: Final
Report 649-50 (1986).
10
The "Show Me!" book is an English language edition of a
German sex education text. It is obtainable legally at libraries
in the United States, although it contains photographs which
technically meet the legal definition of child pornography under
18 U.S.C. §§ 2252 and 2255. For example, an explicit photograph
of a pre-teen boy and pre-teen girl is accompanied by the
caption, "When I touch your breasts my penis gets all stiff."
Another photograph of the same two children is captioned, "It's
fun holding on to your penis." In a hearing before the Louisiana
state court, Agent Shearer testified that postal inspectors know
the book as a "pedophile's Bible." "I found it on at least three
other occasions in suspected preferential child molester
residences. It's a tool, used by a preferential child molester."
14
the government sting began. Both the book and the "Special Project
File," even if not conclusive standing alone, are at least
corroborating evidence that Byrd had an inappropriate sexual
interest in children and would be inclined to order and receive
child pornography through the mail. See United States v. Gendron,
18 F.3d 955, 969 (1st Cir. 1994)(holding that legally obtained
"child erotic" materials found in defendant's home, although not by
themselves dispositive, were relevant and properly admitted to show
predisposition to receive child pornography in the mail); United
States v. Cross, 928 F.2d 1030, 1050 (11th Cir. 1991)(noting that
pedophiles may collect and derive sexual satisfaction from even
non-sexual nude photographs of children, and holding such testimony
relevant on intent in child pornography prosecution), cert. denied,
112 S. Ct. 594 (1991); United States v. Nelson, 847 F.2d 285, 288
(6th Cir. 1988)(holding that paperback books containing written
descriptions of minor children engaged in sexual acts were properly
seized and relevant to show predisposition to receive child
pornography in the mail).
Other evidence confirming Byrd's predisposition included the
Polaroid photographs and the testimony that Byrd fondled two young
boys in 1986 and 1987 and repeatedly paddled and photographed his
foster sons. The paddling, photographs and fondling occurred after
the government sting began, but these actions were clearly
independent of the government's sting; no rational jury could
conclude that the government's correspondence caused Byrd to engage
15
in pedophilic behavior.11 Keith Jacobson, in contrast, did not
engage in any similar independently motivated behavior; instead he
made clear to the purported "American Hedonist Society" that he was
opposed to pedophilia. Jacobson testified that he responded to
government solicitations and placed an order only because the
repeated mailings "had succeeded in piquing his curiosity."
Jacobson, 112 S. Ct. at 1540.
Finally, Byrd's claim that he was "entrapped" into ordering
child pornography contradicts his main defense argument at trial --
that he ordered the tapes only to conduct a "reverse sting" on
government agents, specifically the Louisiana D.H.H.R., which he
claims he thought was out to get him. The jury chose to disbelieve
Byrd's "reverse sting" defense, and Byrd, unlike Jacobson, never
put on any evidence tending to show that he had been beguiled
against his will to order the tapes for sexual gratification.
Instead, Byrd made several confused and overlapping defense
arguments at trial and in his appellate brief. He claims that he
was corresponding with sexually oriented businesses in an attempt
to gather information in order to understand his patients. He made
an analogy, stating that if he were treating a heroin addict, he
would gather information from all sources, from studying
prestigious university research all the way down to questioning a
drug addict in a bus station. Similarly, Byrd stated, he
corresponded with "sleazy" sexually oriented organizations to get
11
Amazingly, Byrd appears to make this preposterous argument
in both his original brief and his reply brief to this Court.
16
information, and he used the false name of "McIntosh" so that if he
received solicitation mail he would know where it was coming from.
He also claims he used the false name so he could refuse delivery
of the tapes he had ordered, such refusal being part of his
"reverse sting" plan to catch the D.H.H.R. at its own game.
The jury also chose to disbelieve Byrd's explanation of the
Polaroid photographs. Byrd testified that he took frontal and rear
nude photographs of Brian, 6 or 7 at the time, to protect himself,
because Brian would sometimes be abused when he went home to visit
his parents. The photos were ostensibly to document the absence of
bruises when Brian left Byrd's home. Byrd stated that he took
similar nude photos of Shaun because Shaun "felt left out." Shaun,
however, testified that he hated cameras and disliked being
photographed. One of the photographs introduced into evidence was
taken of Shaun at age 8 after Byrd paddled him for the first time.
Byrd admitted taking this photograph "as part of a before-and-after
sequence." The photograph showed bright red marks from the
paddling, which the government's expert witness, Dr. Edward Shwery,
characterized as "child abuse." Even Byrd's expert witness, Dr.
Louis Cenac, agreed that the photograph of Shaun showed "physical
abuse."
Byrd testified that he paddled the boys as corporal punishment
to deter dangerous misbehavior such as running into the street,
playing with matches or gasoline, and going near the railroad
tracks. Byrd said he took "before and after" photographs of the
boys' naked buttocks to document the effects of the paddling and
17
avoid allegations of child abuse.
A rational jury could have chosen to discredit Byrd's
explanations, especially in the light of testimony from the
government's expert that the photographs show an abnormal obsession
with the children's nudity rather than an objective attempt to
document their physical condition. Even Byrd's expert witness
admitted that the paddling photographs would be intriguing to a
pedophile, especially a pedophile who enjoys causing physical abuse
to children. Both experts testified that it is inappropriate and
possibly traumatic for either a child psychologist or a parent to
paddle a child and then to take full frontal and rear nude
photographs of him. Byrd's written notes accompanying the photos
also demonstrate an inappropriate motive. A color-coded index -- in
Byrd's handwriting on the back of an envelope -- described the
paddling bruises using such categories as, "likely excessive,"
"better but possible excessive," and "certainly acceptable but may
not be effective." Many of the photographs appear to be of the boys
asleep in bed, with their underwear pulled down to expose their
buttocks. Byrd denied taking some of the photos, saying that the
boys and their friends took some of the photos of each other.
Byrd also gave an explanation for the "Michael Special Project
folder." Byrd claims he compiled the sexually descriptive questions
in 1981 when he lived in Houston, to submit to two 9-year-old boys
with the permission of their mothers, "to ascertain whether a story
overheard by Byrd between the boys in question had actually
occurred or was just the boys' imagination or a combination of the
18
two." The questions in the folder, which were informally
handwritten on pages from a legal pad, asked the boys how hard they
should be spanked for described conduct, specifying in detail
whether the spanking should be with a hand, a belt or a paddle,
with pants up or down, the number of blows and how hard. The
questions also asked whether the boys had ever participated in any
of the acts described, which were stated in very graphic language.
The acts included sexual intercourse with a "9-year-old neighbor
girl," sexual intercourse with "a sheep or pig," masturbation, anal
rape of a boy by a man, and oral and anal sex between young boys.
Dr. Shwery, the government's psychology expert, said the "Special
Project File" questionnaire could not be called legitimate research
under any standards familiar to him, and actually "more closely
resembled torture." Dr. Shwery said that several of the questions
showed blatant pedophilic motivation, for example:
"During the past year or so I have been able to express
my love and to allow a person who loves me to express
love both verbally and physically and I no longer feel
uptight or guilty about it but I still know that it must
always be private."
Even defendant's psychology expert called the questionnaire "very
poor research design," containing "grossly inappropriate" and
"unprofessional" language tending to introduce children to adult
sexuality.
We hold that a reasonable jury could have disbelieved Byrd's
explanations and arguments and drawn inferences from the various
pieces of evidence that Byrd was predisposed to receive child
pornography both prior to and independent of the government's
19
sting. The testimony of the boys and the materials seized from
Byrd's home are evidence that Byrd had an abnormal sexual
attraction to children, which had caused him to engage in
inappropriate, abusive and illegal behavior with the children in
his home. Both psychology experts testified that the "Special
Project" questionnaire, the paddles, the Polaroid photographs and
the "Show Me!" book were all typical materials that a person having
an abnormal sexual interest in children would possess. Byrd's
psychology expert conceded that the ordering of tapes of preteen
sex is consistent with a step that a pedophile will normally take
to prepare or sensitize a child to sexuality. Pedophiles use child
pornography for gratifying their own sexual desires, reducing the
inhibitions of their victims and instructing their victims on
proper sexual performance.12 In addition to citing the case law and
expert testimony that links pedophilia to child pornography, we
also note that common sense would indicate that a person who is
sexually interested in children is likely to also be inclined,
i.e., predisposed, to order and receive child pornography. We
conclude that there is a strong enough link between pedophilic
behavior and child pornography to allow a jury to find
predisposition in this case. In addition, there was other strong
evidence of predisposition -- Byrd promptly responded to each
government solicitation, specifically requested videotape catalogs
12
See Osborne v. Ohio, 110 S. Ct. 1691, 1697 & n.7 (1990)("A
child who is reluctant to engage in sexual activity with an adult
or to pose for sexually explicit photos can sometimes be
convinced by viewing other children having `fun' participating in
the activity.").
20
on pre-teen sex and sadomasochism, indicated an interest in
"Miniature Erotica," and wasted no time in ordering two videotapes
whose descriptions clearly indicated child pornography. The jury
chose to disbelieve Byrd's alternate explanations for his behavior.
We hold that the evidence was sufficient to support the jury's
finding that Byrd was predisposed to commit the crime of receiving
child pornography in the mail.
Pre-Indictment Delay
Byrd claims that he was denied a speedy trial because he was
not indicted until April 16, 1992, nearly five years after the date
of the offense. He claims that actual prejudice to his defense
should be "presumed" under Doggett v. United States, 112 S. Ct.
2686, 2694 (1992). Byrd's reliance on Doggett is misplaced. Doggett
dealt with post-indictment delay, which implicates a defendant's
right to a speedy trial under the Sixth Amendment. In contrast,
pre-indictment delay does not raise a Sixth Amendment issue, but is
instead examined under the due process clause of the Fifth
Amendment. United States v. Marion, 404 U.S. 307 (1971); United
States v. Beszborn, 21 F.3d 62, 66 (1994); United States v.
Harrison, 918 F.2d 469, 473 (5th Cir. 1990)(holding that "there is
no Sixth Amendment right to a speedy indictment."). To prove that
pre-indictment delay violated his due process rights, a defendant
must demonstrate that the prosecutor intentionally delayed the
indictment to gain a tactical advantage and that the defendant
incurred actual prejudice as a result of the delay. United States
v. Neal, 27 F.3d 1035 (5th Cir. 1994); Beszborn, 21 F.3d at 66. The
21
reason the defendant bears the burden of proof in a case of
preindictment delay is because the applicable statutes of
limitation provide the primary guarantee against overly stale
criminal charges. Harrison, 918 F.2d at 473. In this case, the
United States indicted Byrd within the five-year statute of
limitations, so Byrd has the burden of proving both intentional
tactical delay by prosecutors and actual prejudice. Byrd did not
prove that federal prosecutors delayed the indictment for tactical
reasons. Rather, the facts show that the federal government
deferred prosecution because the state of Louisiana was pursuing
charges against Byrd in connection with the same course of conduct.
After the state charges were dismissed, the federal prosecutors
sought and obtained an indictment within about seven months. This
does not show intentional delay for a tactical advantage. Cf.
Dickerson v. Guste, 932 F.2d 1142, 1144 (5th Cir. 1991)(no
intentional delay when defendant's incarceration in federal prison
delayed state indictment for more than five years), cert. denied,
112 S. Ct. 214 (1991).13 Because Byrd did not meet the required
13
Because Byrd has not shown intentional delay, we need not
consider his claim of actual prejudice from the delay. However,
we note that his claims of dead witnesses, lost records and faded
memories are not convincing. Most of the "evidence" he claims was
lost relates to his alternate explanations for the Polaroid
photographs, the "Special Project" folder questionnaire and his
ordering of the child pornography tapes under the false name of
"James McIntosh." Byrd gave lengthy explanations of these matters
on the stand and was allowed to refer to and describe the "typed
process notes" that he claims the government lost or removed from
his files. Even if such notes existed, it is unlikely that they
would have changed the jury's verdict. Byrd's now-deceased
witnesses would have testified as to statements Byrd made to them
about his "reverse sting," a theory the jury heard about at
length and chose to disregard.
22
burden of proof for a due process violation, we reject his claim of
improper pre-indictment delay.
Motion to Suppress
Byrd argues that the evidence seized from his home should have
been suppressed because the search warrant sought items as to which
there was no probable cause. In determining whether probable cause
exists to order a search, a magistrate must make a practical,
common-sense decision as to whether, given all the circumstances
set forth in the affidavit, there is a fair probability that
contraband or evidence of a crime will be found in a particular
place. United States v. Peden, 891 F.2d 514, 518 (5th Cir. 1989).
We hold that the warrant in this case was supported by probable
cause. When Agent Schearer sought the warrant to search Byrd's
home, the totality of the circumstances indicated that (1) Byrd had
been accused of abusing his position of trust as a psychiatrist by
sedating and sexually molesting a child, (2) Byrd had access to
children on a regular basis (he was treating young male patients
who sometimes stayed at his home, and he was attempting to adopt a
young child), (3) Byrd had stated that he had an interest in pre-
teen homosexual and heterosexual activity and sadomasochism, and
(5) Byrd had ordered two videotapes that he knew depicted children
aged 5 to 14 engaging in oral and anal sex with each other and an
adult. To an expert investigator, these facts indicated that Byrd's
residence likely contained other child pornography materials or
evidence of pedophilic activity. Even though the initial complaint
of sedation and abuse that prompted Schearer to target Byrd was
23
ultimately dropped with no finding of wrongdoing, this fact does
not invalidate the warrant. Schearer testified at the state
suppression hearing that even if he had known that the state
investigation into the incident had been closed, he would not have
discontinued the sting. Schearer stated that it was possible that
the state investigation might not have been pursued properly, and
that he relied on Byrd's positive responses to the sting
correspondence in deciding to continue his own investigation and
seek a search warrant after Byrd ordered the child pornography
videotapes. We hold that the district court did not reversibly err
in denying Byrd's motion to suppress.
Sentence
Because the crime in this case occurred before November 1,
1987, the federal Sentencing Guidelines do not apply. UNITED STATES
SENTENCING COMMISSION GUIDELINES MANUAL, Ch. 1, Pt. A (Nov. 1993). Byrd
complains that his sentence of 10 years and a $65,000 fine was
"unfair, biased and unconstitutional," and that the judge unfairly
sentenced him as a child molester. However, the sentence is within
the statutory range set out in 18 U.S.C. § 2252(a)(2), which allows
a $100,000 fine and incarceration for up to of 10 years. In a pre-
Sentencing Guidelines case, the appellate court will generally not
review the severity of a sentence imposed within statutory limits.
United States v. Juarez-Ortega, 866 F.2d 747, 748 (5th Cir. 1989).
The trial court stated its reasons for assessing the maximum
sentence, noting the evidence of sexual and physical abuse of
children and pointing out that the Sentencing Guidelines would have
24
provided for an upward adjustment for such relevant conduct. We
will not disturb the trial court's decision to sentence Byrd to the
maximum statutory term based on the information properly admitted
at trial and a psychiatric report14 ordered by the court as part of
Byrd's presentence investigation. We find no basis to reverse
Byrd's sentence.
CONCLUSION
For the reasons stated above, we AFFIRM Bryd's conviction and
his sentence.
14
The psychiatric report concludes that Byrd is a pedophile
and that there is a significant risk that Byrd would continue his
abusive behavior toward children if released. The report also
states that Byrd suffers from a severe personality disorder that
warps his sense of moral values, and that any attempted treatment
of Byrd would likely be unsuccessful because Byrd rationalizes
and denies his pedophilia, and because pedophilia is very
difficult to treat even with a highly motivated patient.
Nevertheless, the trial court ordered Byrd to be incarcerated in
a facility that offers sex offender treatment.
wjl\opin\93-4998.opn
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