U.S. v. Becht

• Decision Date: 21 August 2001
• Docket Number: No. 00-3690,DEFENDANT-APPELLANT,PLAINTIFF-APPELLEE,00-3690
• Parties: (8th Cir. 2001) UNITED STATES OF AMERICA,, v. JASON ALBERT BECHT, Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 767

267 F.3d 767 (8th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. JASON ALBERT BECHT, DEFENDANT-APPELLANT.

No. 00-3690

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: August 21, 2001

Filed: October 3, 2001

Appeal from the United States District Court for the District of Minnesota. [Copyrighted Material Omitted] Before Bye, Lay, and John R. Gibson, Circuit Judges.

Lay, Circuit Judge.

Jason Albert Becht appeals his conviction for knowingly possessing, and disseminating through interstate commerce, child pornography, in violation of 18 U.S.C. § 2252A(a)(1) & (a)(5)(B). Becht argues: (1) the district court's¹ admission of thirty-nine images of child pornography unfairly prejudiced his defense in violation of Federal Rule of Evidence 403, and (2) the Government offered insufficient evidence for the jury to find guilt beyond a reasonable doubt. We reject Becht's arguments and affirm his conviction.

I. Background

In August, 1998, police in Fridley, Minnesota were informed by the U.S. Postal Inspector that a website displaying and disseminating child pornography was being maintained in Fridley. This information included the name of the website and the name of the registered owner of the website, one Jason Albert Becht. Acting on this information, as well as their own confirmation that the website contained child pornography, the police obtained a search warrant for Becht's home. Upon entering the premises, the police immediately discovered and seized a personal computer and other electronic equipment. No "hard-copy" child pornography was found in the home.

The Fridley police turned the computer over to the Federal Bureau of Investigation for analysis. That analysis revealed that there were approximately 11,000 pornographic images stored on Becht's computer. A number of those images graphically depicted children as young as four years old engaged in sexual activities. The analysis also revealed "transfer logs," records of files transferred to or from the computer. The FBI's computer forensic examiner testified that these logs revealed that 2077 pornographic images were on the computer by May 22, 1998, and 4464 images were on the computer by June 4, 1998. While the exact number of those images that constituted child pornography is unclear, the evidence reveals that the number may have been in the hundreds, and it is undisputed that some such images were present prior to July 4, 1998.

Ultimately Becht was charged with knowingly possessing and disseminating child pornography. At trial, Becht conceded that the images constituted child pornography but argued that he did not know that his website contained such images. To support this theory, Becht offered evidence that he activated a "robot program" to disseminate the pornographic images from his website and wrote a program that automatically sorted incoming images into categories according to their file names. Thus, he argued, he did not look at the images that were on his computer and did not know that some of them constituted child pornography. Alternatively, he argued, the website contained so many images that, even if he had looked at the website, it was unlikely that he would have discovered that some of the images constituted child pornography.

The Government offered a variety of evidence that Becht did have the requisite knowledge. The Government showed that when Becht wrote the automatic sorting program he included subdirectories including "Young" and "Incest." It showed that the program was written to search for file names which included letter strings like "y-o-u-n-g," "y-u-n-g," or "l-i-t," as well as the numerals zero through nine, which the Government alleged corresponded with images of children of those ages. The Government offered expert testimony that a person running a pornographic website for profit would examine its appearance and functionality, and that even a cursory examination of the "Young" subdirectory would have revealed clear child pornography. The Government also offered evidence that the automatic sorting program did not function until July 5, 1998. Prior to that date, Becht had sorted the images by hand. Thus, the Government argued, Becht either had to view the file names, several of which strongly indicated child pornography,² or the images themselves to accurately sort the images. The Government argued that this evidence was more than sufficient to prove Becht's knowledge.

The primary dispute in this appeal involves some of the evidence the Government offered to prove the knowledge element of the crime. At trial, the Government offered into evidence thirty-nine images of child pornography downloaded from Becht's computer. Becht objected prior to and at trial, as he does here, that the prejudicial effect of the images outweighed their probative value. In particular, Becht argued that the Government had offered to stipulate that the images were child pornography and that he had accepted the offer. Thus, he claimed, the images had no probative value at all. In response, the Government disputed the existence of such a stipulation, or that it had offered one. It also maintained that, regardless, it was within its rights to prove its case as it saw fit. The trial court overruled the objection. Subsequently, the Government displayed the thirty-nine images to the jury by bringing them up on a computer screen. It also provided hard copies of the images in a binder for the jury's use.

II. Analysis

A. Admission of the Images of Child Pornography

Evidentiary rulings of the district court are reviewed under an abuse of discretion standard. United States v. Phelps, 168 F.3d 1048, 1054 (8th Cir. 1999). Becht argues that the district court abused its discretion under Federal Rule of Evidence 403,³ which allows a trial judge to exclude even relevant evidence on the grounds that its probative value is substantially outweighed by unfair prejudice. Specifically, Becht asserts two separate grounds on which the images should be excluded: (1) the stipulation that the images constituted child pornography eliminated their probative value, and (2) the balancing test set forth in Old Chief v. United States, 519 U.S. 172 (1997), demands exclusion.

1. The Stipulation

In their briefs, as well as in oral argument, the parties argue whether a stipulation existed, and if so, who offered it. As noted above, Becht argues that the Government offered, and that he accepted, a stipulation that the images constituted child pornography. According to Becht, this offer and acceptance created a binding stipulation, per traditional contract principles. The Government argues that it did not offer a stipulation and that none was agreed to.

The first question, of course, is whether this distinction is relevant. Both sides rely on Old Chief, where the Supreme Court reaffirmed the standard rule that "a criminal defendant may not stipulate or admit his way out of the full evidentiary force of the case as the Government chooses to present it." 519 U.S. at 186-87. The Court recognized that "the prosecution with its burden of persuasion needs evidentiary depth to tell a continuous story...." Id. at 190. It noted that "[a] syllogism is not a story, and a naked proposition in a courtroom may be no match for the robust evidence that would be used to prove it." Id. at 189. This circuit also has recently cited that general rule with approval. See United States v. Hill, 249 F.3d 707, 712 (8th Cir. 2001) (citing Old Chief, 519 U.S. at 186-87).

Becht counters by arguing that the general rule does not apply in a case such as this one where, as he asserts, the Government offers the stipulation. He argues that giving the Government a choice between stipulating and offering its proof does not preclude the Government from choosing the former, in which case it should be bound by its decision. Indeed, the language in Old Chief, as well as recent Eighth Circuit decisions, could be read to suggest such a distinction. See United States v. Gonzalez-Rodriguez, 239 F.3d 948, 953 (8th Cir. 2001) ("[A] defendant's Rule 403 objection offering to concede a point generally cannot prevail over the Government's choice to offer evidence showing guilt and all the circumstances surrounding the offense.") (citing Old Chief, 519 U.S. at 183) (emphasis added); United States v. Barry, 133 F.3d 580, 582 (8th Cir. 1998) ("[A]s a general rule, the government is not bound by a defendant's offer to stipulate.") (emphasis added). Furthermore, one might argue that the better rule would not be one where the Government is allowed to have its cake and eat it too; it would seem unfair to allow the Government to entice a defendant into stipulating to an element of the crime by promising to forego the use of certain damaging evidence and then offering the evidence anyway.

Notwithstanding the ingenuity of Becht's argument, it cannot prevail. Even assuming that the Government offered to stipulate that the images constituted child pornography,⁴ the defendant could not prevail on his theory under the circumstances of this case.⁵

From the record, it is fairly clear that any stipulation offered by the Government went to the nature of the images as child pornography.⁶ The illegal nature of the images, however, is only one element of the offense. As the defendant appeared to concede several times, that element was not the most important one: "The central issue in this case, indeed, the only one as to which there is meaningful disagreement, is what Mr. Becht knew and whether he was aware of possessing and transmitting the charged documents." Defendant's Motion In Limine re: Stipulation to Elements of Charged Offenses at 1 (May 30, 2000). The Government spends several pages of its brief to this court asserting the same point and arguing that the images are probative of that element of the crime, as well as their own nature. See Appellee's Brief at 13-22.

In Old Chief, the Court honored...