United States v. William J. Barber, Jr.

Citations: 56 F.3d 62; 1995 U.S. App. LEXIS 19129; 1995 WL 330874Docket: 94-5698

Court: Court of Appeals for the Fourth Circuit; June 5, 1995; Federal Appellate Court

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William J. Barber, Jr. appeals his conviction under 18 U.S.C. § 2252(a)(2) and (b)(1) for receiving child pornography via mail. Barber raises three main issues: (1) the district court's refusal to allow an entrapment defense, (2) the court's decision to permit the jury to view a one-minute segment of the child pornographic videos, and (3) alleged prejudice from the prosecutor's rebuttal closing statements. The appellate court found none of these issues warranted a reversal of Barber's conviction and affirmed the lower court's decision.

In the context of an undercover operation, a Postal Inspector placed an advertisement in the adult magazine Video Xcitement, which explicitly stated it would not publish any child pornography-related ads. Barber responded to the ad on October 31, 1992, expressing interest in "something different." He subsequently received a checklist from the Postal Inspector, where he indicated a strong interest in various types of sexually explicit materials, including categories involving minors. Barber checked multiple boxes indicating preferences for female models of various ages, including those under five, and types of sexual activities. He signed the checklist above a disclaimer certifying he was an adult and understood the legal implications of the materials he requested. Barber mailed this checklist on November 13, 1992, leading to the Postal Inspector sending him a catalog of prohibited materials.

The pamphlet included an "About Our Products" section highlighting "genuine, uncensored sex action" and cautioned that those offended by youthful sex activity should not order the items. It offered a volume discount and provided ordering instructions. Barber completed an order for eleven videotapes and several photo sets of child pornography featuring young females, totaling $335, which he reduced to $268 after applying a 20% discount. On December 12, 1992, a Postal Inspector acknowledged his order and indicated a delivery timeframe of four to six weeks. A search warrant was obtained on January 14, 1993, the same day the pornographic materials were delivered to Barber's residence, where his girlfriend signed for the packages. The subsequent search revealed only communications with the Postal Inspector and the unopened packages, which were seized. Barber was arrested without having viewed the materials. 

During trial, a one-minute clip from one of the tapes was shown to the jury despite defense objections, and Barber's request for an entrapment jury instruction was denied. The prosecution, during closing arguments, incorrectly claimed the defense misled the jury, prompting an immediate objection from Barber's attorney. The jury found Barber guilty, resulting in a 28-month prison sentence. 

Barber argued that the district court erred by not allowing him to present an entrapment defense. The initial burden rests on the defendant to show government inducement for a crime that he was not predisposed to commit; if met, the burden shifts to the government to demonstrate predisposition beyond a reasonable doubt. The defendant must prove "actual persuasion" rather than mere solicitation, and failing to produce sufficient evidence precludes the issue from going to the jury. Previous cases established that when there is no evidence suggesting the government's actions created a substantial risk for a crime by someone not already willing, entrapment may be dismissed as a matter of law. Similar decisions in other circuits have upheld the unavailability of the entrapment defense under analogous circumstances, such as Barber's prompt response to the order.

In United States v. LaChapelle, the Eighth Circuit ruled that the defense of entrapment was inapplicable based on the defendant's proactive engagement with child pornography, including his prompt ordering of such material after responding to an advertisement. The court noted that in Jacobson, the Supreme Court indicated that a defendant who quickly seizes a criminal opportunity is unlikely to qualify for an entrapment jury instruction. In this case, the district court correctly denied Barber's request for such an instruction, given that he had multiple opportunities to opt out of ordering child pornography but chose to proceed each time, including explicitly acknowledging the illegal nature of the material he was ordering.

Additionally, Barber contended that the prosecutor's rebuttal remarks during closing statements were improper and prejudicial. The prosecutor criticized the defense counsel's credibility, which led to an objection from the defense. The court allowed the prosecutor to continue, and the remarks were deemed non-prejudicial when assessed against established factors, including whether the statements misled the jury, their scope, the strength of evidence against Barber, and whether they diverted attention from relevant issues. Ultimately, the remarks were considered isolated and unlikely to have impacted the jury's verdict, especially given the substantial evidence of guilt.

Barber's appeal claims the district court abused its discretion by allowing the introduction and viewing of a brief segment of a pornographic videotape. He cites *United States v. Harvey*, where evidence of adult pornography was deemed inadmissible because it was unrelated to child pornography and overly prejudicial. In *Harvey*, the defense had stipulated that the material involved child pornography, leading to a ruling against showing the video. In contrast, Barber did not stipulate that the materials sent to him contained child pornography, necessitating the government's presentation of a tape segment to prove this critical element of the offense. Barber argued the videos were simulated child pornography, thus the prosecution's need to demonstrate that they depicted actual child pornography. The court noted that only a brief portion of one tape was shown, resulting in minimal prejudicial impact, with the defendant acknowledging the relevance of the tape. Ultimately, the court found the probative value of the evidence outweighed any prejudicial effect, concluding that the district court did not abuse its discretion and affirming Barber's conviction.