U.S. v. Esch

• Decision Date: 29 October 1987
• Docket Number: 86-2090,Nos. 86-2070,s. 86-2070
• Citation: 832 F.2d 531
• Parties: 24 Fed. R. Evid. Serv. 146 UNITED STATES of America, Plaintiff-Appellee, v. William ESCH, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Linda ESCH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 531

832 F.2d 531

24 Fed. R. Evid. Serv. 146

UNITED STATES of America, Plaintiff-Appellee, v. William ESCH, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Linda ESCH, Defendant-Appellant.

Nos. 86-2070, 86-2090.

United States Court of Appeals Tenth Circuit.

Oct. 29, 1987.

Rehearing denied in No. 86-2070 Jan. 4, 1988.

Thomas M. O'Rourke, Asst. U.S. Atty., Denver, Colo. (Robert N. Miller, U.S. Atty., Denver, Colo., with him, on brief), for plaintiff-appellee.

Richard N. Stuckey, Denver, Colo., for defendant-appellant William Esch.

Cheryl E. Peake, Denver, Colo., for defendant-appellant Linda Esch.

Before SEYMOUR, SETH and BALDOCK, Circuit Judges.

BALDOCK, Circuit Judge.

A jury found defendants-appellants William Esch and Linda Esch guilty of sixteen counts of sexual exploitation of children, in violation of 18 U.S.C. Sec. 2251(a). The court sentenced both defendants to concurrent ten-year terms of imprisonment on eight of the counts, to be followed by concurrent five-year terms of probation on the remaining counts. On appeal, the defendants contend that: 1) the trial court erred in excluding expert testimony; 2) the trial court improperly admitted irrelevant and unduly prejudicial evidence; 3) 18 U.S.C. Sec. 2251(a) is unconstitutional because it lacks a mens rea requirement; 4) the trial court improperly admitted co-conspirator statements; 5) the trial court erred in denying a motion for severance; 6) the government agents' conduct of the undercover operation was so outrageous as to violate due process; 7) the government agents "manufactured" federal jurisdiction; 8) no federal jurisdiction existed as to the fourteen counts involving photographs which were not mailed; 9) the evidence of the defendants' knowledge that those photographs would be mailed was insufficient to transform the transaction into a crime against the United States; and 10) the indictment was multiplicitous. We affirm.

In the spring of 1985, the United States Postal Inspection Service commenced an undercover operation which targeted suspected pedophiles. ¹ Postal Inspector Patrick J. Carr, a prohibited mail specialist, established a post office box in Loveland Colorado for a fictitious organization known as "Love Land." A membership application was sent to Thomas Blackledge, who was jointly tried with the defendants. Blackledge was a suspected pedophile whose psuedonym, Kalium Ghatt, had been discovered during an investigation in Cleveland, Ohio.

Blackledge returned the membership application in August of 1985. His answers to the enclosed questionnaire were interpreted by Carr to indicate an interest in pedophilia. Once Blackledge became a member of "Love Land," he received newsletters and responded to classified advertisements. Carr, who assumed the identity of one of the advertisers, corresponded with him over a four-month period. In two letters sent in October of 1985, Blackledge wrote about his sexual experiences with a husband and wife, later identified as defendants, and their two children. He indicated that they would be interested in producing photographs or films because they needed money.

On December 7, 1985, Carr and Blackledge met at a motel in Evans, Colorado. During the course of the conversation, which Carr recorded, they discussed taking photographs as well as making a movie or a videotape. At that time, Blackledge mentioned a family with children ages two and three. Carr in turn expressed an interest in buying photographs and suggested that Blackledge purchase a camera to take the pictures.

Blackledge also corresponded with Postal Inspector William B. Reeves, Jr. of Walnut Creek, California. At Carr's request, Reeves, also a prohibited mail specialist, assumed the identity of an advertiser in the "Love Land" newsletter. In one of his letters to Reeves, Blackledge mentioned a couple who were interested in making some photographs and videos. Reeves responded by suggesting that they swap photographs or videotapes. In February of 1986, Reeves received in the mail from Blackledge two sexually explicit photographs depicting Blackledge, the defendants and their two children.

On March 11, 1986, Blackledge and Carr met again. Blackledge showed Carr a number of sexually explicit photographs depicting himself, the defendants and their children. Carr then purchased fourteen of the photographs. Those photographs, along with the two photographs mailed by Blackledge to California, were the basis of the sixteen counts upon which the defendants were convicted.

On March 14, 1985, Carr arrested Blackledge and seized an address book which contained the names of the defendants. Five days later, postal inspectors searched the defendants' home in Loveland, Colorado. They seized a lamp, a bedspread and a clock radio, all of which corresponded to those shown in the photographs which Blackledge had delivered to Carr and had mailed to Reeves. The postal inspectors also seized a Polaroid camera and a number of so-called "swingers" magazines.

I.

Defendant Linda Esch first contends that the trial court erred in excluding the testimony of her expert witness, a clinical psychologist. She argues that the testimony was admissible to show motive as well as to show her particular psychological characteristics.

Prior to trial, the government filed a motion in limine to prevent any testimony concerning defendant's mental state. The trial court granted the motion, stating that unless there was an issue of competency or insanity, it would not permit expert testimony on a factual issue within the competence of the jury. Rec. vol. VI at 199. At a hearing on defendant's offer of proof, the psychologist testified that the defendant had a "dependent personality," and further testified that defendant's values regarding sexuality and nudity were derived from her "rigid" childhood experiences. Citing Fed.R.Evid. 704(b), ² the court refused to allow the psychologist to testify before the jury, again stating that the issue of intent was a matter of fact for the jury. The court also cited Fed.R.Evid. 702 ³ in concluding that, because there had been no indication of neurosis or mental defect, the expert testimony was unnecessary. Rec. vol. XI at 946-47.

The determination of whether expert testimony should be admitted rests within the sound discretion of the trial court. United States v. Barton, 731 F.2d 669, 672 (10th Cir.1984). The court's ruling will not be disturbed absent a clear abuse of that discretion. Id.

It is not entirely clear whether the testimony was proffered to address defendant's contention that she was duped by Blackledge, or to elucidate her "motive" for producing the photographs, or both. In any event, we agree with the trial court that the testimony essentially addressed the issue of intent. An expert may not substitute her judgment as to the defendant's state of mind by testifying that because of the defendant's personality, she would not have acted in a particular manner. United States v. Pino, 606 F.2d 908, 918 (10th Cir.1979). Absent the suggestion of the presence of a mental disease or defect, a trial court may properly exclude psychiatric testimony which merely offers an opinion about the defendant's capacity to form the mental state required to commit the offense charged. United States v. McBride, 786 F.2d 45, 50 (2d Cir.1986).

Even assuming that the psychologist would not have focused solely on defendant's capacity to form the requisite intent, more generalized testimony regarding her personality characteristics was excludable because it addressed a subject matter within the knowledge and experience of the jury and therefore did not meet the helpfulness criterion of Fed.R.Evid. 702. See United States v. Affleck, 776 F.2d 1451, 1458 (10th Cir.1985); United States v. Kepreos, 759 F.2d 961, 964-65 (1st Cir.), cert. denied, 474 U.S. 901, 106 S.Ct. 227, 88 L.Ed.2d 227 (1985). Defendant testified about her upbringing and her attitudes toward sexuality and nudity. She further testified that she did not believe she was producing sexually explicit pictures and that she had been duped by Blackledge. The jury was capable of making an intelligent evaluation of that testimony without the assistance of an expert. The trial court was within its discretion in excluding the psychologist's testimony.

II.

Defendant Linda Esch claims the trial court improperly admitted certain evidence which had been seized from her home. The seized items included "swingers" magazines as well as advertisements and photographs mailed to such magazines by the defendants. Defendant argues that because the evidence pertained solely to adult sexual practices, it was not relevant to the charge of sexual exploitation of children and should have been excluded due to its prejudicial nature.

The determination of whether evidence is relevant lies within the sound discretion of the trial court, and the court's determination will not be disturbed absent a clear showing of an abuse of that discretion. United States v. Neal, 718 F.2d 1505, 1509-10 (10th Cir.1983), cert. denied, 469 U.S. 818, 105 S.Ct. 87, 83 L.Ed.2d 34 (1984). A trial court also has broad discretion to determine whether otherwise relevant evidence should be excluded if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. Id. at 1510; see Fed.R.Evid. 403.

Evidence of other acts is not admissible solely to prove a defendant's criminal disposition. United States v. Naranjo, 710 F.2d 1465, 1467 (10th Cir.1983). Such evidence, however, may be admissible under Fed.R.Evid. 404(b) ⁴ to show knowledge, motive or intent on the part of the actor. United States v. Cummings, 798 F.2d 413, 417 (10th Cir.1986).

The magazines, advertisements and photographs were relevant, as they tended to show that defendant had previously sent sexually explicit materials through the mail and that she knew or had reason to know that the photographs at issue...