United States v. Naidoo

• Decision Date: 19 April 2021
• Docket Number: No. 20-60730,20-60730
• Parties: UNITED STATES of America, Plaintiff—Appellee, v. Taryn Goin NAIDOO, Defendant—Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

995 F.3d 367

UNITED STATES of America, Plaintiff—Appellee,

v.Taryn Goin NAIDOO, Defendant—Appellant.

No. 20-60730

United States Court of Appeals, Fifth Circuit.

FILED April 19, 2021

Gaines H. Cleveland, Assistant U.S. Attorney, Andrea Cabell Jones, Esq., U.S. Attorney's Office, Southern District of Mississippi, Gulfport, MS, Ralph Paradiso, U.S. Department of Justice, Child Exploitation and Obscenity Section, Washington, DC, for Plaintiff-Appellee.

Richard Terrell Starrett, Pensacola, FL, for Defendant-Appellant.

Before King, Smith, and Haynes, Circuit Judges.

Per Curiam:

Taryn Goin Naidoo was convicted of three counts of possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) & (b)(2). On appeal, Naidoo raises challenges related to the district court's evidentiary rulings, jury instructions, and sentencing. For the reasons that follow, we VACATE Naidoo's Count Two conviction and sentence under 18 U.S.C. § 2252(a)(4)(B) and (b)(2), and MODIFY the district court's judgment to impose only a $200 special assessment and a $10,000 assessment under the Justice for Victims of Trafficking Act. In all other respects, we AFFIRM.

I.

Defendant-appellant Taryn Goin Naidoo was charged in a superseding indictment with three counts of possession of visual depictions involving the use of a minor engaging in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(4)(B) & (b)(2). Count One related to Naidoo's possession of a sixteen-gigabyte SanDisk Micro SD card containing such images from on or about November 17, 2016 through on or about July 10, 2017. Count Two related to Naidoo's possession of a sixty-four-gigabyte Lexar Micro SD card containing such images on or about July 10, 2017. Count Three related to Naidoo's possession of a Western Digital My Passport external hard drive containing such images on or about October 4, 2018.

Prior to his trial, Naidoo's counsel attempted to exclude the admission of any sexually explicit material depicting minors, offering to stipulate that all relevant images were depictions of child pornography. The district court denied Naidoo's motion but cautioned that it would not "license[ ] the Government to overwhelm the jury with disturbing videos and images." At trial, over the defense's running objection, the court permitted the Government to present a set of forty-six images of child pornography retrieved from an HP laptop found in Naidoo's residence and representative samples of images retrieved from the SD cards and external hard drive. Notably, some of the images in these batches were duplications, thus demonstrating connections between the devices in Naidoo's residence. The Government was also permitted to show limited clips of three pornographic videos and to present story boards that demonstrated the overall contents of those three videos and one other.¹

Also prior to trial, Naidoo's defense counsel identified two mental health experts whom the defense intended to call to testify about Naidoo's mental state. The first expert, Dr. Criss Lott, was prepared to testify that Naidoo had no sexual arousal to children, knew it was wrong to engage in sexual activity with an underage person, and was sexually attracted to women. The second expert, Dr. Susan Niemann-Hightower, was prepared to testify that Naidoo was heterosexual, enjoyed watching "mainstream pornography involving consenting adults," and showed "no signs of atypical thoughts or deviant tendencies."² The district court granted the Government's motion to preclude the testimony, reasoning that, though the proffered testimony was potentially relevant to the issue of Naidoo's knowledge, it presented a special risk of jury confusion. The court made clear that its ruling "cut[ ] both ways" and the Government was also barred from offering a "contrary expert opinion" about Naidoo's sexual predilections. On the basis of this ruling, Naidoo objected at trial when the Government introduced evidence that he had accessed written stories online (referred to as the "Kristen stories") describing sexual encounters between minors and adults. The court overruled the objection.

Naidoo's trial ended on January 10, 2020, with a guilty verdict on all counts. With enhancements, the presentence investigation report calculated an offense level of 33, which—together with a criminal history category of II—resulted in a sentencing range of 151 to 188 months. The district court sentenced Naidoo to three concurrent terms of 170 months’ imprisonment, to be followed by 15 years of supervised release. As a special condition of supervised release, the court prohibited Naidoo "from using any Internet-capable device, or computer, ... unless he is granted permission or authority in advance by the supervising U.S. Probation Officer." The court also imposed $32,000 in restitution, a $100 special assessment per count of conviction for a total of $300, a $5,000 assessment per count of conviction under the Justice for Victims of Trafficking Act ("JVTA") for a total of $15,000, and a $10,000 fine. This appeal followed.

II.

Naidoo first challenges a variety of evidentiary rulings. These include the district court's decisions to (1) preclude testimony by Naidoo's experts, (2) admit images and videos of child pornography, and (3) admit evidence of pornographic stories viewed by Naidoo. We address each argument in turn, applying a deferential abuse of discretion standard of review. See United States v. Guidry , 456 F.3d 493, 501 (5th Cir. 2006) ("In a criminal case, we review the district court's evidentiary rulings under an abuse of discretion standard."); see also United States v. Dixon , 413 F.3d 520, 523 (5th Cir. 2005) ("We review a district court's decision to exclude expert testimony only for abuse of discretion.").

A. Naidoo's Expert Testimony

Naidoo contends that his lack of motive to possess child pornography was central to his defense. Accordingly, he sought to introduce expert testimony that he had no sexual interest in children and thus lacked such a motive. However, Naidoo was precluded from doing so by the district court after it concluded that, under Federal Rule of Evidence 403, the probative value of such testimony was outweighed by the special risk of jury confusion.

Federal Rule of Evidence 403 provides that the court "may exclude relevant evidence if its probative value is substantially outweighed by a danger of ... confusing the issues." A district court's decision under Federal Rule of Evidence 403 is reviewed with " ‘an especially high level of deference to’ the district court, with reversal called for only ‘rarely and only when there has been a clear abuse of discretion.’ " United States v. Dillon , 532 F.3d 379, 387 (5th Cir. 2008) (quoting United States v. Fields , 483 F.3d 313, 354 (5th Cir. 2007) ). Similarly, a trial court is afforded " ‘wide latitude’ and ‘broad discretion’ to exclude expert testimony." United States v. Reed , 908 F.3d 102, 117 (5th Cir. 2018), cert. denied , ––– U.S. ––––, 139 S. Ct. 2655, 204 L.Ed.2d 285 (2019) and ––– U.S. ––––, 139 S. Ct. 2658, 204 L.Ed.2d 285 (2019) (quoting Williams v. Manitowoc Cranes, LLC , 898 F.3d 607, 625 (5th Cir. 2018) ). Accordingly, we "will not disturb the court's exercise of its discretion to exclude such testimony unless the exclusion was ‘manifestly erroneous’—that is, unless it ‘amounts to a complete disregard of the controlling law.’ " Id. Any such error in admitting evidence under Rule 403 is subject to "harmless error review," and reversal is not warranted "unless there is a ‘reasonable possibility that the improperly admitted evidence contributed to the conviction.’ " United States v. Williams , 620 F.3d 483, 492 (5th Cir. 2010) (quoting United States v. Mendoza–Medina , 346 F.3d 121, 127 (5th Cir. 2003) ).

Naidoo has not shown that the district court manifestly erred in finding that the risk of jury confusion caused by Naidoo's proffered expert testimony outweighed its probative value. The First Circuit has confronted a similar issue. See United States v. Pires , 642 F.3d 1 (1st Cir. 2011). The court recognized that, where the only issue is whether a defendant knowingly possessed child pornography, expert testimony on a defendant's sexuality, though possessing some probative value, has "diminished relevance." Id. at 11. Indeed, "[i]n enacting the federal child pornography statute, Congress proscribed certain conduct without regard to the underlying motive." Id. ; see also United States v. Matthews , 209 F.3d 338, 351 (4th Cir. 2000) (explaining that § 2252 does not require that "a defendant act[ ] with a bad motive or evil intent," such as to "satisfy some prurient interest"). Rather, 18 U.S.C. § 2252(a)(4)(B) prohibits an individual from "knowingly" possessing material containing a visual depiction of a minor engaging in sexually explicit conduct. The court further noted that "because of an expert's stature qua expert, jurors may assign more weight to expert testimony than it deserves." Pires , 642 F.3d at 12. Accordingly, expert testimony regarding the defendant's sexuality could "confuse the jury and divert its attention from the central question in the case"—whether the defendant knowingly possessed child pornography. Pires , 642 F.3d at 12.

Here, after considering the proffered testimony and performing the requisite balancing under Rule 403, the district court came to the same conclusion that the risk of jury confusion, in this particular case, outweighed the probative value of such evidence. Indeed, the district court reasoned that Naidoo's proffered testimony had "some relevance" since an individual would "presumably be less likely to knowingly possess child pornography if he is not sexually attracted to minors." The court found, however, that such probative value was limited in light of the requisite mens rea and expressed concern that the jurors would afford the expert testimony outsized weight. As in Pires, the court thus concluded that the expert testimony...