U.S. v. Byrd
| Decision Date | 01 September 1994 |
| Docket Number | No. 93-4998,93-4998 |
| Citation | 31 F.3d 1329 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Gary Jefferson BYRD, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
David Randal Wagley, Opelousas, LA (Court Appointed), for appellant.
Josette Cassiere, Michael D. Skinner, U.S. Atty., Shreveport, LA, Duro J. Duplechin, Jr., Asst. U.S. Atty., Lafayette, LA, for appellee.
Appeal from the United States District Court For the Western District of Louisiana.
Before REYNALDO G. GARZA, DeMOSS and PARKER 1, Circuit Judges.
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 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.
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 oversedating 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 dates 4 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 . 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:
narrow-minded condemnation of their personal preferences."
. 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
. 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 Wonderboy 5 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.
. 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:
. 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 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 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 Another child, Kevin, also testified at trial that Byrd had...
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