United States v. Grimes

Revised March 9, 2001
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 00-40495
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JEFFREY CARL GRIMES,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Eastern District of Texas
_________________________
March 7, 2001
Before SMITH, POLITZ, and PARKER,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Jeffrey Grimes appeals his conviction of
possession of child pornography under 18
U.S.C. 2252(a)(4)(B).1 He challenges the
1 Section 2252(a)(4)(B) makes it unlawful
(continued...)
1(...continued)
knowingly to possess three or more books,
magazines, periodicals, films, video tapes, or other
matter that contain any visual depiction that has
been mailed, or has been shipped or transported in
interstate or foreign commerce, or that was
produced using materials that have been mailed or
so shipped or transported, by any means including
by computer, if (a) the producing of such visual de-
(continued...)

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2
results of his jury trial on four fronts: that the
evidence was insufficient; that the district
court instructed the jury, as a matter of law, to
find a fact essential to conviction; that the
search and seizure of his computer violated his
Fourth Amendment rights; and that the district
court abused its discretion in admitting into
evidence the contents of two sexually-explicit
narratives. While disagreeing with Grimes on
the first three issues and on his challenge to the
narratives’ probative value, we vacate and
remand for a new trial after concluding that
the narratives’ prejudicial effect substantially
outweighed their probative value.
I.
On October 17, 1998, Grimes’s wife
brought his computer to a store in Paris, Tex-
as, for repair, signing a check-in slip and au-
thorizing repair work; the slip indicated the
computer would not “boot up.” Two days lat-
er, Kevin Watson, a repair technician, began
working on the computer.
Watson testified that the computer would
not power on until he had removed a large
amount of dust from the fan. When he then
performed a standard check of the hard drive
to see whether the computer had other prob-
lems, he discovered that the hard drive was
low on space. After attempting but failing to
contact Grimes by phone, Watson reached
Grimes’s wife and advised her of the problem,
suggesting either the purchase of a new hard
drive or allowing him to remove temporary
files, temporary Internet files, and other files
not needed on the computer.
Mrs. Grimes gave permission for Watson to
remove files but said she would speak with
Grimes before approving a new hard drive.
Watson then began deleting temporary Inter-
net files. He testified that he looked for “JPG”
files,2 which are picture files that consume a lot
of hard drive space.
After locating “JPG files,” Watson
continued to follow his standard approach by
opening the files to ensure, before deleting the
pictures, that they were not personal to the
computer owner.3 While opening JPG files,
Watson found approximately seventeen that
contained the images of young, naked girls,
perhaps six to ten years of age, with pixel
boxes4 over their “private areas.”5 Thinking
1(...continued)
piction involved the use of a minor engaging in
sexually explicit conduct; and (b) such visual de-
piction was of such conduct. “Sexually explicit
conduct,” as that term is contemplated by § 2252-
(a)(4)(B), includes actual or simulated “lascivious
exhibition of the genitals or pubic area of any per-
son.” 18 U.S.C. § 2256(2)(E).
The statute was amended in 1998 to criminalize
the possession of one, vice three, visual depictions.
Pub. L. 105-314 § 203(a)(1). Grimes’s actions
were committed before the effective date of the
amendment.
2 Watson’s testimony included a well-vetted
explanation that the search he performed to locate
JPG files is one that searches all directories to find
such files and does not just pull files from a
specific directory. Watson suggested that this ap-
proach is also his common practice.
3 For instance, if the images were JPG files in
the user’s temporary Internet files (“TIF’s”), they
might be pictures from a public site that the user
had visited. As a technical point, only images that
have appeared, at one time, on the computer screen
become TIF’s.
4 The pixeled pictures have part of the picture
intentionally blurred or obscured electronically. A
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3
that the images might be “illegal,” Watson
called his supervisor, Robert Slider, and
showed him the images. Slider, in turn,
thought the images might constitute child
pornography, so he reported the matter to
police detective Danny Huff.
Huff came to the store and viewed the sev-
enteen images that Watson had found
originally; Watson showed him only the previ-
ously-found images. Without requesting Wat-
son or Slider to search the computer any fur-
ther, Huff reported the findings to FBI Special
Agent Ken Paith.
Slider copied the seventeen images onto a
floppy disk, which he gave to Huff, who cop-
ied them before faxing them to Paith, who
seized the computer after obtaining a search
warrant.6 Paith then delivered the computer to
the FBI office in Dallas, where its contents
were reviewed by FBI computer specialist
Guelda Lambert.
II.
Grimes was tried on a superseding
indictment that charged him with one count of
possession of three or more sexually explicit
visual depictions of minors. Specifically, he
was charged with possession of thirteen
computer graphic files, each of which
contained one image. Lambert further testified
that Government Exhibits 5(a) through 5(l)
were extracted from Grimes’s computer.
Lambert testified that the images were stored
three subdirectories down in the computer, in
a directory called “My Briefcase,” which was
in a directory called “Desktop,” which was in
Windows.
Mike Marshall testified for the government
as an expert witness in the general fields of
computers and the specific computer
applications of “DOS,” “Windows,”
“Windows 95,” E-Mail, the Internet, and
functions within those systems such as “My
Briefcase.” As part of the government’s
investigation, Lambert had provided Marshall
with a disk containing the contents of Grimes’s
hard drive. Marshall confirmed that the series
of images in Exhibits 5(a) through 5(l) had
been stored in the subdirectory “My
Briefcase.” This testimony would be
important in demonstrating that the pictures
were not somehow accidently on the user’s
computer; multiple inputs are required to place
files into the subdirectory in which the pictures
were discovered.
4(...continued)
common example of pixel-manipulation is when a
person’s face is blurred, with what often look like
“fuzzy squares,” on a television screen, so as to ob-
scure his identity from the viewer.
More technically, a pixel is the smallest discrete
element of an image, picture, television screen, or
computer monitor (usually a single-colored dot). It
is a set of bits that represents a graphic image, with
each bit or group of bits corresponding to a pixel in
the image. The greater the number of pixels per
inch, the greater the resolution. A rough analogy to
painted art is that a pixel is the same as each
colored dab of a pointillist painting.
5 Not all the government exhibits involved
pixeled genitalia. In a few, the girls were nude; in
at least one photograph, the girl’s vagina was fully
exposed, with a narrow band of pixels obscuring
the center of her “private area” but not the entire
area. In others, larger pixel boxes were used.
6 Grimes attacks the warrant as improper be-
cause it was based on an illegal search and seizure.
His motion to suppress was denied.

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4
Marshall testified that each of these images
was stored in the subdirectory at a different
time and in the “JPG format.” He also stated
that the series of images contained in Exhibits
5(a) through 5(l)7 all depicted unclothed,
young female children with pixel boxes over
their genitalia, which boxes were generated by
a computer on the images after the pictures
were taken. In his opinion, the girls were nak-
ed and had their genitals exposed when the
pictures were taken8
Marshall also identified Government Ex-
hibits 7a, 8a, and 8b, which were images of
young girls who were either nude or partially
nude. He testified that these images were re-
trieved from the “temporary Internet files” in
Grimes’s computer. Marshall explained that a
“temporary Internet file” is created when any
of the Windows operating systems is installed
with an Internet Browser. This temporary
cache is a “first in first out” algorithm in which
the files most recently viewed on the Internet
by the end user remain in storage for quick
recall. The images contained in Exhibits 7a,
8a, and 8b were viewed on the Internet by the
end user.
Marshall identified Government Exhibits 12
and 13, which are paper copies of a narrative
or story. Exhibit 12 is entitled “Torture
Horse,”9 and Exhibit 13 is entitled “Too
Young.” Exhibits 12 and 13 were downloaded
by the computer’s end user and stored in the
temporary Internet file. Marshall could not tell
whether the end user had read either of them.
Grimes sought to suppress these narratives
as violative of Federal Rule of Evidence
404(b). The district court, after
reconsideration, allowed their admission to
demonstrate intent and state of mind. Brief
passages from these narratives were read to
the jury.
The jury also heard testimony from Paith
regarding his conversation with Grimes at
Grimes’s residence. During what appears to
have been only a brief discussion, Grimes ad-
mitted that he was the chief user of that
computer, that he spent approximately three to
four hours per day using it to access the Inter-
net, and that he had accessed Internet sites that
contained pictures of nude, young girls.
Grimes sought to suppress this conversation,
claiming that the interview had been custodial
in nature.
Dr. Clyde Shaw, a pediatric physician, also
testified as an expert witness for the
government. He stated that the girls depicted
in Exhibits 5(a) through 5(l) were under the
age of eighteen. Based on his twenty-five
7 Marshall also identified Government Exhib-
it 6, which contained a series of images (not
charged in the second superseding indictment) sim-
ilar to those in Exhibits 5(a) through 5(l) and
stored on the “My Briefcase” subdirectory. Mar-
shall also established that the computer had
searched the Internet for news groups using the
search criteria of “alt.japanese.neojapan.lolita” and
that there were at least fifty successful “hits.”
“Lolita” is often a code word for child
pornography.
8 The girl in Exhibit 5k was not completely
naked. Her panties were halfway between her
knees and hips.
9 The passage read from “Torture Horse” in-
volved two eleven-year-old girls and a ten-year-old
girl being sexually abused and tortured by an older
man. The passage read from “Too Young”
involved a fourth-grade girl who was forced to
perform sexual acts on a security guard.

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5
years’ experience, he believed that many of the
children in those exhibits were prepubertal or
in early puberty and it is atypical behavior for
children of this age to display their naked
bodies.
III.
Grimes argues that the presence of the pixel
boxes prevents, as a matter of law, the nude
photographs of the minor girls from meeting
the statute’s definitional requirements. First,
he asserts that because the genitals were
blocked out, the photographs fail to meet the
definition of “lascivious.” Second, and along
the same lines, he argues that because the gen-
itals are blocked out, they are not “exhibited.”
In interpreting the statute, courts begin and
end with the text if it is unambiguous and does
not lead to an absurd result.10 As we have
said, § 2252(a)(4)(B) makes it unlawful
“knowingly [to] possess three or more books,
magazines, periodicals, films, video tapes, or
other matter . . . if (a) the producing of such
visual depiction involved the use of a minor
engaging in sexually explicit conduct; and
(b) such visual depiction was of such
conduct.” There are two quest ions: Did the
production involve the use of a minor
engaging in sexually explicit conduct, and was
the visual depiction a depiction of such
conduct?11
This circuit, when determining whether a
visual depiction of a minor constitutes a “las-
civious exhibition of the genitals or pubic area”
under § 2256(2)(E), applies the six-factor test
of United States v. Dost, 636 F. Supp. 828
(S.D. Cal. 1986), aff’d, 813 F.2d 1231 (9th
Cir. 1987), which we adopted in United States
v. Carroll, 190 F.3d 290, 297 (5th Cir. 1999)
(citing United States v. Knox, 32 F.3d 733,
7846 n.10 (3d Cir. 1994)), vacated and
reinstated in relevant part, 227 F.3d 486, 488
(5th Cir. 2000) (per curiam). The factors are:
1. whether the focal point of the visual
depiction is on the child’s genitalia or
pubic area;
2. whether the setting of the visual
depiction is sexually suggestive, i.e. in a
place or pose generally associated with
sexual activity;
3. whether the child is depicted in an
unnatural pose, or in inappropriate
attire, considering the age of the child;
4. whether the child is fully or partially
clothed, or nude;
5. whether the visual depiction suggests
sexual coyness or a willingness to
engage in sexual activity;
6. whether the visual depiction is
intended or designed to elicit a sexual
response in the viewer.
Id. (citing Knox, 32 F.3d at 746). The list is
not exhaustive, and no single factor is disposi-
10 Darby v. Cisneros, 509 U.S. 137, 147
(1993); Conn. Nat’l Bank v. Germain, 503 U.S.
249, 253 (1992); Rubin v. United States, 449 U.S.
424, 429-30 (1981).
11 The second prong narrows the statute. For
instance, a child could be used in the production of
a photograph, but the image in the ultimate
photograph could be one that did not capture the
child engaging in sexually explicit conduct. If this
were so, a defendant might be charged under a
(continued...)
11(...continued)
different statuteSSperhaps child molestationSSbut
not child pornography.

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6
tive. Id.
After viewing the photographs, we reject
Grimes’s challenge to the sufficiency of the
evidence. It is plain to any viewer that the
producing of these visual depictions involved
the use of minors engaging in sexually explicit
conduct and that the visual depiction captured
that activity.
Grimes answers by saying that post-
production computer alterations brought the
photographs outside the statute’s reach. That,
however, is not what the plain language
requires.
The scienter requirement of subsection
(1) is applied to the entire clause.12 Even were
the statute to be written as Grimes wishes it
were, courts have treated the words
“lascivious” and “exhibition” as a phrase.
Knox, 32 F.3d at 745. Interpreting individual
words in context is a common approach in
statutory construction. See Deal v. United
States, 508 U.S. 129 (1993) (observing that it
is a “fundamental principle of statutory
construction (and, indeed, of language itself)
that the meaning of a word cannot be
determined in isolation, but must be drawn
from the context in which it is used”).13
To aid in its interpretation, the Knox court
considered the purpose behind that statute. It
also applied a plain language analysis to de-
termine that nothing in the statute required
“nudity.” The Knox court reasoned:
. . . Congress aimed the federal child
pornography statute at combatting “the
use of children as subjects of
pornographic materials[, which] is harm-
ful to the physiological, emotional, and
mental health of the child.” New York v.
Ferber, 458 U.S. 747 (1982). In so do-
ing, Congress defined the “lascivious ex-
hibition of genitals or pubic area” as one
variety of “sexually explicit conduct”
proscribed by the statute. Thus, we find
12 United States v. Brown, 25 F.3d 307 (6th
Cir. 1994) (holding that statute criminalizing re-
ceipt of child pornography was constitutional, be-
cause it included scienter requirement as to nature
and character of proscribed materials); United
States v. Schmeltzer, 20 F.3d 610 (5th Cir. 1994)
(holding that statute prohibiting possession of por-
nographic materials depicting children was con-
stitutional as applied to defendant who admitted
that he knew the items he possessed depicted mi-
nors); United States v. Burian, 19 F.3d 188 (5th
Cir. 1994) (holding that statute prohibiting
knowingly receiving in the mail visual depictions of
minor children engaged in sexually explicit conduct
was not unconstitutional as applied to defendant
who ordered through the mail sexually explicit
material depicting teens, despite defendant’s
contention that statute did not require knowledge of
performer’s minority as element of crime it defined;
statute did require such knowledge, and defendant
knew that tapes he possessed depicted minors
engaged in sexually explicit conduct); United
States v. Gendron, 18 F.3d 955 (1st Cir. 1994)
(concluding that “knowingly,” as used in child
pornography statute, modified entire clause in
(continued...)
12(...continued)
which it appeared, including parts of clause that
referred to conduct and age of persons depicted in
materials; thus, statute did not unconstitutionally
fail to include scienter requirement).
13 Although they are not before us, we can
imagine situations in which a person came into
possession of a picture that was so altered and so
changed that he could not discern that the
production had involved a minor engaged in
sexually explicit conduct. In such a case, the
government might not be able to prove knowledge.

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it more meaningful to focus on the
ordinary meaning of the statutory
term “lascivious exhibition,” rather
than simply focusing on the term
“exhibition” divorced entirely from
the context in which it was used.
The term “lascivious” is defined as
“[t]ending to excite lust; lewd; indecent;
obscene; sexual impurity; tending to de-
prave the morals in respect to sexual re-
lations; licentious.” Black’s Law Dic-
tionary 882 (6th ed. 1990). Hence, as
used in the child pornography statute,
the ordinary meaning of the phrase “las-
civious exhibition” means a depiction
which displays or brings forth to view in
order to attract notice to the genitals or
pubic area of children, in order to excite
lustfulness or sexual stimulation in the
viewer. Such a definition does not con-
tain any requirement of nudity, and
accords with the multi-factor test
announced in United States v. Dost for
determining whether certain material
falls within the definition of 18 U.S.C.
§ 2256(2)(E). Nor does such a
definition contain or suggest a
requirement that the contours of the
genitals or pubic area be discernible or
otherwise visible through the child
subject’s clothing.
Knox, 32 F.3d at 745-46.14
The same court specifically rejected the
characterization of United States v. Villard,
885 F.2d 117 (3d Cir. 1989) that Grimes urges
to us. He asserts that Villard’s logic suggests
that the statutory term “pubic area” is
analogous to the medical meaning. The Third
Circuit disagrees and characterizes Villard’s
holding as “the obvious principle that nudity
alone is insufficient to constitute lascivious ex-
hibition.” Id. at 750. To hold otherwise
would outlaw many works of art or family
photos of, say, naked children in bathtubs.
Id.15
The Knox court stopped short of saying
that the Dost factors are the only considera-
tion. That court believed that, even without a
requirement for nudity, the statute does
require a threshold inquiry into whether the
depiction visually exhibits the genitals or pubic
areas. Id. at 751. That court considered the
Dost factors useful in making this threshold
inquiry, as we do. Again, however, our case is
distinguishable from Knox, because in Knox
the court faced a set of native photographs in
which the production did not involve nude
children, but, instead, minors wearing tight,
revealing clothing. The Knox court faced a
more difficult question than do we.
Even under a post-alteration analysis, the
photos Grimes had in hand revealed ample ex-
hibition and lasciviousness both to meet the
threshold inquiry and to allow a reasonable ju-
ror to vote for conviction. Grimes would have
us quibble with the jury’s evaluation.
14 Later, the Knox court noted that were the
statute found to be ambiguous, which it believed
was not the case, then the legislative history, which
shows that Congress explicitly removed the
requirement for nudity from a draft, supported its
holding. Knox, 32 F.3d at 748.
15 Grimes’s brief contains a footnote explaining
when nude photographs have not been found to be
“obscene.” Obscenity, however, is governed by a
different inquiry, known as the Miller test. See
Miller v. California, 413 U.S. 15 (1973). The
purposes and language behind the relevant statutes
support a continued distinction between these tests.

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Although undoubtedly many cases involving
computer-altered photographs of minors will
follow this one, and such post-photograph
computer manipulation will present courts
with difficult factual and legal questions, the
instant matter is not one of those cases.
To ignore the plain-meaning approach
would undermine several of the statute’s pur-
poses, on which the Supreme Court has relied
when discussing this statute and the issue of
child pornography generally. The Court has
recognized that the psychological effect of vi-
sually recording the sexual exploitation of a
child is devastating, and its elimination is of
“surpassing importance.” New York v. Ferber,
458 U.S. 747, 757 (1982).
Additionally, controlling the production and
dissemination of child pornography is of
paramount importance, because pedophiles of-
ten use child pornography to seduce other chil-
dren into performing sexual acts. Osborne v.
Ohio, 495 U.S. 103, 111 (1990). These harms
occur during the first stepSSthe photographing
of the lasciviously exposed minorSSof what is
later a computer-altered photograph. The
Knox court, having considered these purposes,
was persuaded that
where the child is treated as a sexual
object, the permanent record of this em-
barrassing and humiliating experience
produces the same detrimental effects to
the mental health of the child as a nude
portrayal. The rationale underlying the
statute’s proscription applies equally to
any lascivious exhibition of the genitals
or pubic area whether these areas are
clad or completely exposed.
Knox, 32 F.3d at 750.
IV.
Grimes claims that the district court
instructed the jury that it must, as a matter of
law, find a fact that was essential to
conviction, to-wit, the lascivious exhibitions of
the girls’ genitals or pubic areas, had been
established by the evidence. The court did
not, in fact, instruct the jury to find a fact, nor
did it disturb the written instructions it had
read to the jury before the final arguments.
Grimes’s contention is based on a portion
of a comment, which he lifts out of context
and in doing so misrepresents the court’s
remarks.16 From our review, it seems the
16 Grimes’s complaint focuses on the “must
have been engaged in” phrase in the following
portion of the instruction:
The Court: “Okay. Now, Mr. Rogers,
I may need to stop you here because I think
you’re having two different arguments here
and the Jury’s going to have a question in
their mind and I want to give you time to
finish your argument here.
Ladies and Gentlemen, what’s required,
if you’ll look on page 7 of your instructions
there, what’s required is that the minors, if
you find these persons in these photographs
to be minors, must have been engaged in
sexually explicit conduct at the time of the
photograph.
One of the definitions of ‘sexually
explicit conduct’ is a lascivious exhibition
of the genitals or pubic area of any person.
So, the question is whether or not, at the
time of the photograph, the minors, if they
are minors, were engaged in the lascivious
exhibition of their genitals or pubic areas.
You’ll have to decide whether or not,
(continued...)

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court merely attempted to make plain that
there is a two-step inquiry: (1) Are the images
of minors? (2) If so, the jury must also decide
whether the minors were engaged in the
lascivious exhibition of their genitals or pubic
area. This was an aid, not an error.
V.
Grimes sought to suppress the images,
contending that they were seized in violation
of the Fourth Amendment. He claims that the
store’s search went beyond the permission giv-
en by his wife, thereby invalidating any
evidence that flows from the search. The ini-
tial search, being private in nature, is not sub-
ject to Fourth Amendment analysis, unless the
private individual was acting as an agent of, or
with the participation of, a government
official. United States v. Jacobsen, 466 U.S.
109, 113 (1984) (citing Walter v. United
States, 447 U.S. 649, 662 (1980), and
suggesting that any invasion of a defendant’s
privacy rights by law enforcement officers that
occurs after a private search is tested by the
degree to which it exceeds the scope of the
private search).
In United States v. Paige, 136 F.3d 1012,
1018 (5th Cir. 1998), we discussed the two-
part test for determining when a private party
is a government actor under the Fourth
Amendment: (1) whether the government
knew or acquiesced in the intrusive conduct
and (2) whether the private party intended to
assist law enforcement efforts or to further his
own ends. The computer store employees do
not meet this test.
First, the government was not involved in
the initial discovery of the images. Second,
when the private parties initially discovered the
images, they did not act with the intent to as-
sist law enforcement officials. The employees
did, however, intend to aid officials after the
discovery of the images and their initial belief
in the images’ illegality, but this is a different
inquiry.
The next consideration is whether, after the
private search, the person continues to possess
a reasonable expectation of privacy. Id. at
1020. Paige involved a homeowner, in which
case the expectation of privacy is often at its
highest. As for a case with facts more
analogous to ours, we consider United States
v. Hall, 142 F.3d 988 (7th Cir. 1998), in which
a co mput er repairman found child
pornography and called police. When they
arrived, the repairman showed the officer the
items he had found. All of these items were
admitted.
The pre-warrant images viewed by Huff
and Paith were discovered during a private-
party search, completed following standard
company practice; were within the scope of
the original private-party search; and were in
an area where Grimes no longer possessed a
reasonable expectation of privacy. For three
reasons, then, the images are immune to
Grimes’s Fourth Amendment challenge.
VI.
Grimes challenges the admission of the two
sexually-explicit narratives, claiming they are
stale and prejudicial. We review for abuse of
discretion the admission of evidence pursuant
to rule 404(b). United States v. Bermea, 30
F.3d 1539 (5th Cir. 1994).
16(...continued)
given the fact that there are computer
generated pixels over the pubic area
and genitals, whether or not, at the time
they were photographed, they were
engaged in this exhibition.

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10
Rule 404(b) states:
(b) Other crimes, wrongs, or acts.
Evidence of other crimes, wrongs, or
acts is not admissible to prove the
character of a person in order to show
action in conformity therewith. It may,
however, be admissible for other
purposes, such as proof of motive,
opportunity, intent, preparation, plan,
knowledge, identity, or absence of
mistake or accident.
This court adopted a two-pronged inquiry
in United States v. Beechum, 582 F.2d 898
(5th Cir.1978) (en banc), which is now
considered the settled approach. “First, it
must be determined that the extrinsic offense
evidence is relevant to an issue other than the
defendant’s character. Second, the evidence
must possess probative value that is not
substantially outweighed by its undue
prejudice and must meet the other
requirements of Rule 403.” Id. at 911.
Federal Rule of Evidence 403 provides:
“Although relevant, evidence may be excluded
if its probative value is substantially
outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury,
or by considerations of undue delay, waste of
time, or needless presentation of cumulative
evidence.”
In applying the first prong of the Beechum
test, courts first consider whether the evidence
is relevant.17 Where that evidence involves an
extrinsic act, its relevancy under Beechum is a
function of the degree of similarity between
the extrinsic act and the offenses charged.
This means more than the existence of a com-
mon characteristic. For purposes of the Bee-
chum test, the common characteristic must be
“the significant one for the purpose of the in-
quiry at hand.” United States v. Guerrero,
650 F.2d 728, 733 (5th Cir. Unit A July 1981)
(citations omitted).
Grimes asserts that the evidence failed both
aspects of the Beecham inquiry. We disagree;
the evidence was highly relevant, even
probative as to three issues.18 Unfortunately,
it also was exceedingly prejudicial, because of
its inflammatory nature.
The narratives were relevant, despite
Grimes’s offered stipulation, which came after
the government convinced the district court to
change its mind and admit the narratives, that
the images did not belong to anyone else.
Normally, if intent is not at issue, then
extrinsic evidence is not admissible. United
States v. Roberts, 619 F.2d 379, 383 (5th Cir.
1980). But, the defendant must affirmatively
remove the issue of intent, not just promise not
actively to contest the issue. Id.
Grimes also challenges the narratives’ rel-
evance by arguing that the time of one year
between the downloading of the narratives and
the pictures fatally reduces the narratives’ pro-
bative value. Grimes’s case survey on this is-
17 To be relevant, evidence must tend to make
the existence of some fact that is of consequence to
the determination of the action either more or less
probable than it would be without the evidence.
FED. R. EVID. 401.
18 The government was required to demonstrate
that Grimes knew the images were of minors; that
he knowingly possessed the images; and that it was
he, and not a family member, who possessed them.
The narratives would help show that the possession
of the photographs was unlikely an accident when
a person was also downloading narratives that
involved sexual contact between adults and minors.

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sue, however, is incomplete.
This circuit has had several opportunities to
consider the effect of time on the probity of a
piece of evidence. In United States v. Byers,
600 F.2d 1130 (5th Cir. 1979), we affirmed
the admission of a relevant extrinsic offense
that had occurred one month before the
charged offense. Another example is United
States v. Hitsman, 694 F.2d 443 (5th Cir.
1979), in which we affirmed admission of a
college transcript and a conviction of the sale
of marihuana, both of which were two or three
years before the charge at issue. Ten years,
however, was too great a gap in time.19 In
light of our precedent and the statute’s
elements, the narratives were relevant.20
Grimes also objected to the second Bee-
cham inquiry, prejudice. The court admitted
that the narratives were prejudicial and even
noted that they were of a different sexual na-
ture from the photographs: The narratives de-
pict violent rapes and moderate torture, while
the photographs, though coerced,21 depict no
violence. The government defended that the
potential prejudice was mitigated, because
possessing the narrat ives is not a criminal of-
fense. Normally, the danger of a jury’s reprisal
for unpunished extrinsic activity is likely to be
less when the activity is merely “bad” and not
criminal. Beecham, 582 F.2d at 914 n.17.
Having read the narratives, we cannot agree
with the district court’s decision and are
unpersuaded by the government’s argument.
The narratives are vile in their graphic and vio-
lent nature: young girls in chains, a young girl
in handcuffs, and references to blood, for
example. Perhaps on retrial the government
can redact a different portion of the narratives
and attempt to reintroduce them. Should it at-
tempt to do so, it should be wary of
introducing gruesome violence, in light of the
fact that the charged pictures are non-violent
in nature.
We announce no generalization concerning
whether it is ever appropriate to introduce
such evidence, for in some cases the
government may have no other source of
extrinsic evidence to prove elements of the
offense. Perhaps then, the balance between
relevance and prejudice will tilt in the other
direction. See United States v. Goodwin, 492
F.2d 1141 (5th Cir. 1974). In this instance,
however, using the appropriate balancing test,
the “pro bative value is substantially
outweighed by the danger of unfair prejudice.”
Rule 403.
The judgment is VACATED, and this mat-
19 See United States v. Carter, 516 F.2d 431
(5th Cir. 1975) (holding that five illicit liquor of-
fenses could not be admitted to show specific intent
to violate an internal revenue liquor law).
20 Grimes also complains that Marshall testified
that he could not be certain whether the narratives
had been read. This raises a proof-of-extrinsic-
offense issue. Unlike owning the photographs,
owning the narratives was not an offense.
Normally, even where extrinsic evidence involves
an offense, the government need only produce evi-
dence that would withstand a directed verdict on
the extrinsic offense. United States v. Jimenez,
613 F.2d 1373 (5th Cir. 1980) (citing Byers).
The nature of TIF’s suggests there was “some”
evidence that Grimes read these narratives. While
users may not know that TIF’s are created, that
occurs only once an item appears on the user’s
screen.
21 By the very fact that the photographs involve
minors, who are unable to consent, the photographs
are “coerced.”

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ter is REMANDED for further proceedings
consistent with this opinion.

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