United States v. Naidoo
995 F.3d 367
| 5th Cir. | 2021Background
- Naidoo was convicted on three counts of possessing child pornography under 18 U.S.C. § 2252(a)(4)(B) & (b)(2) based on images found on multiple devices (SD cards, external drive, laptop).
- Defense offered to stipulate that images were child pornography but objected to admission of graphic images and sought to present two experts to testify Naidoo lacked sexual interest in minors.
- District court excluded the experts under Rule 403 (risk of jury confusion) but admitted representative images, some duplicate images linking devices, short video clips, and two pornographic written narratives (“Kristen stories”).
- Jury convicted on all counts; court sentenced Naidoo to concurrent 170-month terms, 15 years supervised release, restitution and per-count monetary assessments including JVTA assessments.
- On appeal the Fifth Circuit reviewed evidentiary rulings, jury instructions, multiplicity and sentencing issues, vacating Count Two as multiplicitous and modifying monetary assessments, otherwise affirming.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exclusion of defense expert testimony on sexual predilections | Exclusion proper because expert testimony has limited probative value and poses special risk of jury confusion under Rule 403 | Expert testimony was central to defense (no sexual interest in minors; undermines knowledge/motive) | Exclusion affirmed: probative value limited and risk of confusion outweighed it; no manifest error |
| Admission of multiple images/videos | Govt needed representative samples and duplicates to show narrative, links among devices, and rebut defense; stipulation insufficient | Stipulation should have sufficed; displaying many images was unduly prejudicial | Admission affirmed: representative samples and duplicates admissible; narrative value and rebuttal weight justified evidence |
| Admission of pornographic written stories (Kristen stories) | Stories relevant to knowledge/intent (not character) and not uniquely inflammatory here | Stories were 404(b) propensity evidence and unduly prejudicial; court erred by not pre-reading them | Admission affirmed: relevant to knowledge; not so inflammatory as in Grimes; district court limited scope and gave appropriate instruction |
| Jury instruction on "similar acts" (404(b) purposes) | Instruction correctly stated permissible uses of extrinsic acts | Instruction impermissibly allowed motive consideration contrary to pretrial ruling barring expert predilection evidence | Instruction affirmed: applicable law and did not conflict with pretrial exclusion of expert testimony |
| Jury instruction on meaning of "on or about" dates | Court properly clarified dates when jury asked | Defense argued instruction resurrected a flaw in Count Two after counsel emphasized exact date | Instruction affirmed: supplemental instruction reasonably responsive and correct statement of law |
| Multiplicity of Counts One & Two | Separate devices and alleged date ranges support distinct counts/assessments | Counts multiplicitous under §2252(a)(4)(B) because statute criminalizes possession of “1 or more” matters at a single time/place | Vacated Count Two: simultaneous possession of multiple matters is a single violation under §2252(a)(4)(B); judgment modified to remove duplicate monetary assessments |
| Sentence reasonableness & supervised‑release Internet restriction | Guidelines advisory and properly applied; within‑Guidelines sentence presumptively reasonable; internet restriction needed for supervision | Guidelines irrational (Dorvee); sentence disparate; supervised‑release condition unreasonably requires permission for each Internet use | Sentence affirmed as reasonable; court did not treat Guidelines as mandatory; supervised‑release condition upheld but interpreted to not require prior permission for every single Internet use |
Key Cases Cited
- United States v. Caldwell, 586 F.3d 338 (5th Cir.) (representative samples and graphic evidence support Government narrative and rebuttal even when defendant offers a stipulation)
- Old Chief v. United States, 519 U.S. 172 (1997) (defendant’s offer to stipulate normally cannot bar Government from presenting its chosen proof)
- United States v. Grimes, 244 F.3d 375 (5th Cir.) (pornographic narratives may be relevant to intent/knowledge but can be unduly prejudicial when grotesquely violent)
- United States v. Pires, 642 F.3d 1 (1st Cir.) (expert testimony about defendant’s sexuality has diminished relevance to knowing possession and risks juror overreliance)
- United States v. Chiaradio, 684 F.3d 265 (1st Cir.) (§2252(a)(4)(B) simultaneous possession of multiple matters constitutes a single violation)
- United States v. Emly, 747 F.3d 974 (8th Cir.) (copying/transferring files among devices alone does not create independent §2252(a)(4)(B) violations)
- United States v. Booker, 543 U.S. 220 (2005) (Sentencing Guidelines are advisory and must be considered)
- Kimbrough v. United States, 552 U.S. 85 (2007) (district courts have discretion to vary from Guidelines ranges)