U.S. v. Betcher

Citation534 F.3d 820
Decision Date22 July 2008
Docket NumberNo. 07-2173.,07-2173.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Bruce W. BETCHER, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Thomas Harold Shiah, argued, Kimberly K. Hall, on the brief, Minneapolis, MN, for appellant.

Erica MacDonald, AUSA, argued, Minneapolis, MN, for appellee.

Before BYE, GRUENDER, and SHEPHERD, Circuit Judges.

BYE, Circuit Judge.

A jury convicted Bruce W. Betcher of twenty-four counts of Production of Child Pornography under 18 U.S.C. §§ 2251(a) and (b), one count of Receipt of Child Pornography under 18 U.S.C. § 2252(a)(2), and one count of Possession of Child Pornography under 18 U.S.C. § 2252(a)(4)(B). On appeal, Betcher argues: (1) 18 U.S.C. § 2251 is unconstitutional due to an insufficient link with interstate commerce; (2) the district court1 erred by admitting evidence not charged in the indictment because it was cumulative and the probative value was substantially outweighed by unfair prejudice; (3) the testimony of the government's child abuse expert was irrelevant and prejudicial and the district court abused its discretion by admitting it; and (4) the district court abused its discretion when sentencing him because it failed to properly weigh the 18 U.S.C. § 3553(a) factors. Having jurisdiction under 28 U.S.C. § 1291, we affirm.

I

In 1997, Betcher and his wife obtained custody of their three young grandchildren: two girls, born in 1993 and 1995, and one boy, born in 1996. The children called Betcher "Dad." In 2004, Betcher took numerous pornographic and erotic pictures of his two young granddaughters and their three girlfriends. At the time the pictures were taken, the girls ranged in age from eight to eleven years old.

Betcher was apprehended after law enforcement found the pictures on a laptop computer in Georgia and subsequently discovered Betcher was the photographer and had transmitted the photos over the internet to the person in Georgia. Further investigation revealed Betcher had additional images of child pornography on his personal computer, including ninety-six pictures and sixteen videos. In his interview with Burnsville Police Department Detective Steve Adrian, Betcher admitted to having a preference for child pornography of prepubescent girls and to receiving and possessing child pornography on his personal computer. He denied having produced any such pictures. Investigators determined it was Betcher's digital Olympus camera, which was manufactured in Indonesia, which recorded the pornographic pictures.

At trial, Betcher's defense was the young girls — not he — had taken the photographs of each other. Each of the five girls testified Betcher took the photographs. Betcher's best friend testified to Betcher admitting to him he took the pictures of the young girls. The jury found him guilty on all counts.

Before sentencing, Betcher submitted a position paper arguing against a life sentence, contending it would be unreasonable because of his allegedly low risk of reoffending and because the Sentencing Commission erred when it crafted the sentencing guidelines for child pornography offenses. After a lengthy sentencing hearing, the district court rejected Betcher's arguments, calculated the appropriate guidelines range, considered the 18 U.S.C. § 3553(a) factors and concluded a life sentence was reasonable. Because statutory maximums prevented the court from imposing a sentence of life, the court sentenced Betcher to consecutive terms of imprisonment for the statutory maximum term on all counts of conviction, for a total of 9000 months or 750 years.2

II

Betcher challenges the constitutionality of the statute under which he was convicted for production of child pornography, raises two evidentiary issues, and attacks the reasonableness of his sentence.

A

Betcher argues 18 U.S.C. § 2251 is unconstitutional and, therefore, the district court should have dismissed the production of child pornography charges (Counts 1-24) for lack of federal jurisdiction. We review a challenge to the constitutionality of a federal statute de novo. United States v. Crawford, 115 F.3d 1397, 1400 (8th Cir.1997). However, "[i]t is a cardinal rule in our circuit that one panel is bound by the decision of a prior panel." Owsley v. Luebbers, 281 F.3d 687, 690 (8th Cir.2002) (citing United States v. Prior, 107 F.3d 654, 660 (8th Cir.1997)).

Betcher argues the mere transportation across state or international lines of cameras used in the manufacture of child pornography does not constitute an impact upon interstate commerce sufficient to form a jurisdictional basis upon which Congress could validly prohibit the charged conduct under its Commerce Clause powers. More than one panel of this Court has already rejected this precise constitutional attack. United States v. Mugan, 394 F.3d 1016, 1020-24 (8th Cir.2005) (holding 18 U.S.C. §§ 2251(a), 2252A(a)(5)(B) both require proof that the child pornography was produced with materials transported in interstate commerce and are thus tied to interstate commerce and constitutional);3 United States v. Hampton, 260 F.3d 832, 834-35 (8th Cir. 2001) (holding, even after Morrison,4 the federal criminalization of child pornography produced with materials that have traveled in interstate commerce is constitutional); United States v. Hoggard, 254 F.3d 744, 746 (8th Cir.2001) (upholding a conviction under § 2251(b) when child pornography was produced with interstate materials and distinguishing Morrison and Lopez5 because in neither of those cases "did the statute involved contain an express jurisdictional element, requiring the government to prove, in each case, a concrete connection with interstate commerce"); United States v. Bausch, 140 F.3d 739, 740-41 (8th Cir.1998) (affirming a conviction for possession of child pornography under 18 U.S.C. § 2252(a) and rejecting defendant's claim that his prosecution was unconstitutional under the Commerce Clause); see also United States v. Koenen, 230 Fed.Appx. 631 (8th Cir.2007) (per curiam) (holding defendant's admission that the camera he used to produce the child pornography had traveled in interstate commerce is by itself sufficient to satisfy the analysis of whether there is an impact upon interstate commerce sufficient to prohibit the charged conduct under Congress's Commerce Clause powers).

B

Betcher contends the district court abused its discretion under Federal Rule of Evidence 403 when it admitted as evidence an additional twenty-six photographs and a video, none of which were charged as production counts in the indictment. Betcher argues the probative value of such evidence was low and was outweighed by the danger of unfair prejudice. We review a district court's evidentiary rulings for clear abuse of discretion. United States v. Cannon, 475 F.3d 1013, 1023 (8th Cir.2007). "We will reverse a conviction only when an improper evidentiary ruling has affected substantial rights or had more than a slight effect on the verdict." Id. (internal quotation omitted).

Federal Rule of Evidence 403 provides relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." Fed.R.Evid. 403. "Rule 403 does not offer protection against evidence that is merely prejudicial in the sense of being detrimental to a party's case. The rule protects against evidence that is unfairly prejudicial." United States v. McCourt, 468 F.3d 1088, 1092 (8th Cir.2006) (quoting United States v. Johnson, 463 F.3d 803, 809 (8th Cir.2006) (emphasis added in McCourt)). Unfair prejudice means an undue tendency to suggest decision on an improper basis. United States v. Adams, 401 F.3d 886, 899-900 (8th Cir.2005) (quoting United States v. Lupino, 301 F.3d 642, 646 (8th Cir.2002)). Evidence which is "so inflammatory on its face as to divert the jury's attention from the material issues in the trial" is unfairly prejudicial. Johnson, 463 F.3d at 809.

The challenged evidence is probative to undermine Betcher's defense that the girls took the pictures of themselves and distributed them over the internet. The video depicts Betcher and one of his granddaughters sitting at separate computers. Betcher adjusts a web camera to focus on the girl, who is dressed in a long t-shirt and underwear. Betcher reaches toward her inner thigh, at which time she pushes his hand away and says, "Quit." He responds, "I was videotaping," and adds, "We'll try to send it shortly." This video is relevant to show Betcher was in control of production and distribution, yet does not itself contain pornography or any representation of sexual assault such as would improperly inflame the jury.

The twenty-six uncharged photographs are part of a series of seventy-eight photographs taken of the same five children, on the same fifteen dates, with the same model of camera, in the same home, and transmitted to the same computer in Georgia. From this series, twenty-nine photographs constituting child pornography were charged in the indictment. When viewed together with the charged photographs, the uncharged photographs corroborate the victims' testimony that Betcher manufactured the pornographic pictures in his home. Some of the uncharged photographs show all five girls together, which indicates someone other than one of the girls took the photographs. In addition, contextual clues in the uncharged photographs — such as the type of underwear worn — assisted in identifying the victims in some charged photos, where the girls' faces are not visible. As with the video, the uncharged photographs do not contain graphic depictions of child pornography such as would improperly inflame the jury.

We find no danger of unfair prejudice in either the video or the uncharged photographs. Cf. United States v. Becht, 267 F.3d 767, 774 (8th Cir.2001) (finding even "the admission of still images of child pornography does not rise to the level of unfair...

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