United States v. Byrd

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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