In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-3415

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CHARLES BURT,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 CR 273—Wayne R. Andersen, Judge.

____________

ARGUED APRIL 4, 2007—DECIDED JULY 26, 2007

____________

Before KANNE, WILLIAMS, and SYKES, Circuit Judges.

KANNE, Circuit Judge. Charles Burt was convicted by a

jury of nine counts: seven counts of sexual exploitation of

a minor, one count of distributing child pornography, and

one count of possession of child pornography. He challenges a number of the evidentiary decisions by the district

court, and argues that the cumulative effect of the errors

deprived him of a fair trial. Finding no error, we affirm.
2 No. 06-3415

I. BACKGROUND

Charles Burt worked in the photography department of

the local grocery store. Photography was a hobby and an

occasional side business for him. A federal investigation

into a child pornography ring led to a search warrant being

issued for Burt’s house. The warrant was executed, and

agents recovered photography and computer equipment

from his house. Based on files found on his computer and

information recovered from other computers seized in the

investigation, as well as testimony from other suspects,

the government eventually secured a superseding indictment containing nine counts. The first seven counts were

for exploiting children in the production of pornography in

violation of 18 U.S.C. § 2251(a). An eighth count charged

that he distributed child pornography in violation of 18

U.S.C. § 2252(a)(1)(A). Count nine charged Burt with

receipt and possession of child pornography in violation of

18 U.S.C. §§ 2252A(a)(2) and 2252A(a)(5)(B).

The evidence at trial was more extensive than we need

recount here. We will focus on those aspects of the evidence that have been raised by Burt on appeal. The government’s case was made up of three categories of witnesses.

One group consisted of the agents and officers who investigate child pornography and who had been involved in this

case. A second category consisted of some of the children

who had been photographed. A third category included

William Martin and Brian Urbanawicz, both of whom were

in prison for charges related to child pornography or child

abuse and had been part of the group of child

pornographers whose trail had eventually led to Burt’s

doorstep.

As part of its case, the government established that

photographs of young boys taken by Burt were the “holy

grail” among an online community of child pornography

traders and admitted pedophiles. Tr. at 198. The govern-
No. 06-3415 3

ment called William Martin, who was serving a prison

sentence for child pornography in Wisconsin. Martin’s

computer had contained numerous explicit pictures of

children, and a video showing Burt molesting a child.

Martin testified about his online relationship with Burt,

including trading photos, online chats that both of them

had taken part in, and some of the technical details of how

Martin had administered one of the internet sites where

self-described “boy-lovers” would congregate. Specifically,

he testified that the photo which was the basis for count

four of the indictment was found on his computer. Tr. at

257-58. He also testified that the internet screen names

“BSomeSmoke” and “Starved_Rock” were used by Martin

and Burt, respectively.

When the government asked Martin whether Burt had

sent him photos of naked boys, he denied it. Over a defense

objection, the court allowed the government to ask Martin

whether he had ever made prior inconsistent statements

when he was being interviewed by federal agents after his

arrest. The court admonished the jury that the question

was not to be considered evidence, but that evidence comes

only from “the witnesses, the documents, and the stipulations.” Tr at. 267. Martin denied that he had ever told the

investigators that he had received any of his collection of

child pornography from Burt.

The government later called two of the investigators

from the Martin case. Agent Brelsford testified that

Martin had, in fact, previously implicated Burt when he

was interrogated about the pornography found on his

computer. Over defense counsel objection, the court

allowed Brelsford’s testimony, which the government

elicited with the expressed intent to impeach Martin’s

denial that Burt was the source of some of his pornography. The court instructed the jury that, on this topic,

Brelsford’s testimony was only to be considered for the

purposes of impeaching Martin’s testimony. The court’s
4 No. 06-3415

limiting instruction to the jury occupies one and one-half

pages of trial transcript. Tr. at 402-03. The government

later called Agent McDonough, part of whose testimony

also impeached Martin’s denial that Burt was the source

of at least some of his pornography.

During Brelsford’s testimony and McDonough’s testimony, the government also admitted logs of internet chat

conversations between two people. The screen names that

were used on the internet chat were “Starved_Rock” and

“BSomeSmoke.” Over a defense objection, when the

government published those transcripts of the chat room

conversations, the district court allowed the government to

substitute “Burt” and “Martin” in place of the screen

names. The district court admonished the jury that they

were not to assume that the chat was actually conducted

by Burt and Martin, but that the earlier evidence could

have allowed them to make that inference, and “whether

or not they really authored these statements is something

that you will have to conclude.” Tr. at 413.

Of the three children who testified against Burt, two

made allegations that he had molested them. In the case

of one child, David, the act of alleged molestation was

captured on video, and this video was the underlying

pornography charged in count five of the indictment. In the

case of the other child, Austin, no act of molestation was

ever charged and none of the alleged pornographic pictures

showed Burt molesting Austin.

A defense theme throughout the trial had been that not

all nude photos of children are pornographic. In particular,

the defense’s case went, the government was required in

this case to prove that the photographs were “lascivious

exhibition of the genitals.” 18 U.S.C. § 2256(2)(A)(v).

(There are other ways that a photo can count as depicting

sexually explicit conduct under the statute, but the parties

agree that in this case the government could not prove
No. 06-3415 5

them.) In his opening statement, Burt’s counsel framed the

case as being about “a small town, hardworking professional photographer who took pictures of young boys

engaged in sports, sports attire, athletic equipment, for the

purpose of putting them on a legitimate nonpornographic

website.” Tr. at 53. During trial, and outside the presence

of the jury, the parties had sparred about whether Burt

should be allowed to show the jury pictures of nude boys

that could be found in books available in the library. Burt’s

argument was that the government was required to prove

more than just the creation of nude photos. During closing

argument, the defense argued various times to the jury

that photographs and videos of naked children are not

necessarily pornographic. See, e.g., Tr. at 602 (“You can go

to a library, you can go to a church, you can go anywhere

and see a picture of a boy or a young child with his penis

exposed.”); Tr. at 604 (“Not every exposure of genitalia is

lascivious.”); Tr. at 610 (“Just because you see a naked

body or a naked child or the genitalia doesn’t mean it is

lascivious.”); Tr. at 610-11 (“You can go to the library and

find all sort of pictures that look like Charles Burt’s

pictures.”); Tr. at 612 (“If you find that that is lascivious,

you have to find that every single medical picture depicting a child’s penis—you would have to find that lascivious

as well.”); Tr. at 615 (“. . . you would have medical doctors,

medical schools, you would have all sorts of artists, going

to jail.”).

The jury returned guilty verdicts on all nine counts. The

court sentenced Burt to one hundred years in prison, “a

whopper of a sentence.” United States v. Bullock, 454 F.3d

637, 637 (7th Cir. 2006) (“One hundred years is a long

time—one year longer, in fact, than the standard lyrical

shorthand for an unimaginably long sentence.”). Burt

appeals a series of evidentiary decisions by the district

court, and argues that their cumulative effect deprived

him of a fair trial.
6 No. 06-3415

II. Analysis

A. The Brelsford and McDonough Testimony

We review evidentiary rulings for abuse of discretion.

United States v. Luster, 480 F.3d 551, 556 (7th Cir. 2007).

Burt argues on appeal that Brelsford’s and McDonough’s

testimony about what Martin said when he was questioned

in an earlier investigation was inadmissable hearsay and

that the district court abused its discretion in admitting

the testimony.

Hearsay “is a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.” FED. R.

EVID. 801(C). In this case, we conclude that the testimony

was offered to impeach Martin, not to prove the truth of

the matter asserted. The court was very thorough in

warning the jury about the distinction between the two.

The issue first arose when Brelsford took the stand. After

explaining to the jury that the government intended to

impeach Martin’s testimony, the court explained to the

jury that “those prior statements themselves cannot be

used as evidence to prove something.” Tr. at 402. Specifically foreshadowing the content of the testimony, the court

continued that the government “cannot use what—what

Mr. Martin told this agent to prove that Mr. Burt sent the

images to Mr. Martin. [The government] would have to

have other evidence that was direct, not statements that

somebody made outside of court to prove that.” Tr. at 403.

The court concluded that the testimony “cannot be used by

you to prove the truth of what the agent says Mr. Martin

said to him.” Id. The testimony is therefore not hearsay,

and falls squarely within the standard use of prior inconsistent statements to impeach a prior witness’s credibility.

See KENNETH S. BROUN, MCCORMICK ON EVIDENCE § 36

(2006). The fact that Martin was the government’s witness
No. 06-3415 7

is not generally a bar to the government then impeaching

him. See FED. R. EVID. 607.

Burt argues on appeal that the government improperly

called Martin only to provide a backdoor to allow

Brelsford’s and McDonough’s testimony. We have held that

“it would be an abuse of the rule, in a criminal case, for the

prosecution to call a witness that it knew would not give it

useful evidence, just so it could introduce hearsay evidence

against the defendant.” United States v. Webster, 734 F.2d

1191, 1192 (7th Cir. 1984). Burt argues that Webster has

created a “modified version of the primary purpose test”

set out in United States v. Morlang, 531 F.2d 183 (4th Cir.

1975), and cites to Webster and United States v. Kane, 944

F.2d 1406 (7th Cir. 1991), for support. But neither of those

cases makes any mention of a primary purpose. Both cases

reiterate that the test is whether the prosecution calls the

witness in bad faith. Kane, 944 F.2d at 1412 (“The test is

whether the prosecution exhibited bad faith by calling a

witness sure to be unhelpful to its case.”); Webster, 734

F.2d at 1192 (“The good-faith standard strikes a better

balance . . . .”).

Burt is unable to point to any direct evidence that the

government acted in bad faith, but argues that because the

government knew ahead of time that at least some of

Martin’s testimony would be adverse to its case, it must

have been acting in bad faith. Appellant’s Br. at 20 (“[T]he

government had no good-faith basis for calling Martin, and

even conceded . . . that its purpose was to impeach his

testimony.”). Burt points to a side-bar discussion in the

midst of Martin’s testimony, where the government

acknowledged that Martin would likely deny aspects of his

previous statements and that the government would

subsequently call Brelsford and McDonough to impeach

Martin on those parts of his testimony. Tr. at 264-67.
8 No. 06-3415

But it cannot be that any time the government suspects

that a witness will lie on some aspect of his testimony that

it is barred from using the witness. Webster actually

envisioned just the type of situation that we deal with

here, and held that the testimony would be admissible:

Suppose the government called an adverse witness

that it thought would give evidence both helpful and

harmful to it, but it also thought that the harmful

aspect could be nullified by introducing the witness’s

prior inconsistent statement. . . . [W]e are at a loss to

understand why the government should be put to the

choice between the Scylla of forgoing impeachment and

the Charybdis of not calling at all a witness from

whom it expects to elicit genuinely helpful evidence.

Webster, 734 F.2d at 1193. 

The question for us, then, is whether there is enough

useful information in Martin’s testimony to support the

district court’s decision to allow it. Reviewing the transcripts, we conclude that it was well within the district

court’s discretion to allow Martin’s testimony, even

knowing that the government would eventually impeach

some of it through the testimony of Brelsford and

McDonough. In the portion of Martin’s testimony that had

already been concluded before the questioning turned to

his previous statements, the government had already

elicited the following information from him: (1) that he was

a collector of child pornography and a pedophile, (2) that

he was an on-line associate of Burt, (3) that Martin ran a

website called “Star Kids” which previous testimony had

established was a site where other pedophiles frequently

congregated, (4) that his computer, seized in Wisconsin,

had included the picture which was the foundation for

count four of the indictment, (5) that his computer contained several videos of Burt and other people doing unnamed acts, (6) that Martin’s screen name was
No. 06-3415 9

“BSomeSmoke” and Burt’s was variously “Exsell” or

“Starved_Rock,” (7) that he and Burt traded photos and

videos of children on the internet, (8) that he used computer encryption to hide child pornography, and (9) that he

had brought children from Wisconsin to Illinois to have

Burt photograph them.

It boggles the mind that Burt would claim on appeal that

there was no good-faith reason for the government to call

Martin other than to tee up Brelsford’s and McDonough’s

impeaching testimony. The authentication of the count

four photo on his computer in Wisconsin was sufficient by

itself to support calling Martin. The district court did not

abuse its discretion in allowing Martin, Brelsford, or

McDonough to testify as they did. The court’s curative

instructions were more than adequate to ensure that the

evidence did not mislead the jury or prove to be more

prejudicial than probative.

B. The “Starved-Rock” Chat Transcripts

During Brelsford’s and McDonough’s testimony, the

government also published to the jury two exhibits, which

are referred to by the parties as the “Starved Rock Chat”

and the “Starved Rock Chat Excerpts.” Burt did not object

to the admission of Starved Rock Chat, but did object to

the admission of the excerpts. Tr. at 184, 407-12. Both

pieces of evidence were based on a log of a Yahoo! chat

between “BSomeSmoke” and “Starved_Rock” which was

recovered off of Martin’s computer in Wisconsin. Recall

that Martin testified that those names referred to Martin

and Burt respectively.

Burt now argues on appeal that the admission of the

chat as a whole was an abuse of discretion. We disagree.

Although we have not considered the question before, other

circuits have concluded that properly authenticated chat
10 No. 06-3415

logs may be admitted in evidence. See, e.g., United States

v. Tank, 200 F.3d 627 (9th Cir. 2000); United States v.

Simpson, 152 F.3d 1241 (10th Cir. 1998). Those portions of

the chat which represent Burt’s writings were properly

admissible as admissions by a party opponent under FED.

R. EVID. 801(d)(2). Burt argues that the inclusion of

Martin’s half of the conversation is inadmissible hearsay,

and unduly prejudicial at any rate. The government

counters that Martin’s half of the conversation is necessary

to provide context to Burt’s comments, and was not

hearsay because it is not offered for the truth of the matter

asserted.

Turning first to the question of whether Martin’s portion

of the chat constitutes hearsay, we are unable to see any

way that the chat was being admitted for the truth of the

matter asserted. Without delving into all the graphic

details that the chat logs depict, we can summarize Martin’s contribution to the conversation as follows: he asserts

that he is searching for something (presumably a digital

photo) that is “not too graphic” for Burt. He tells

Burt the name of the file that he had just sent, and that he

“better find it . . . don’t [w]ant that floating around.” He

goes on to describe somebody as “way too

ummmmmmmmmmmmmmmmm”, “horny all the time

an[d] will literally rape me in my sleep” and that “he never

really had someoen [sic] do that [before].” Martin then

begins a long description about how one of his victims

“actually LOVES it . . . I am not talking oral here.” He

then concludes that “all boys love oral” which he describes

as “normal” but that penetration is “not normal.”

There is no reason to believe that Martin’s statements

were introduced for the purpose of proving the truth of the

matter asserted in them. The government had no reason to

prove the particular sexual activities that Martin engaged

in with particular boys whose photos he might have been

sharing with Burt. Nor did the government have any
No. 06-3415 11

reason to prove the truth of Martin’s assertions that one of

his victims rapes him in his sleep, or that “all boys love

oral” sex but that penetration is not normal. Other than a

conclusory statement that the government offered Martin’s

words for the truth of the matter asserted, Burt’s briefs

are entirely devoid of any explanation of how the government sought to establish the truth of the statements, or

even which statements the government hoped to prove true

through Martin’s words. In short, Martin’s portion of the

chat log was not offered for the proof of any matter

asserted in them, and therefore was not hearsay.

Burt makes an additional argument with respect to the

excerpted chat, which the government had altered to

replace the screen names with real names, that another

layer of hearsay was added to the exhibit making its

admission an abuse of discretion. The parties have not

pointed us to any direct authority on this issue, and it

appears to be a question of first impression. We are

persuaded that the altered chat logs fall into the category

of a demonstrative exhibit, making their admission subject

to analysis under FED. R. EVID. 403.

We come to this conclusion by considering the altered

chat logs in the context for which they were offered, and by

analogizing to other more commonly accepted demonstrative exhibits. When the government introduced the excerpts, the prosecutor asked Brelsford to authenticate the

excerpts. He replied that it was “a summary, a synopsis, of

the chats reflected in the previous Government exhibit.”

Tr. at 406. After Brelsford clarified that the excerpts were

“direct quote excerpts of the overall chats,” the government

asked, “have you reviewed [the excerpts] and determined

that that exhibit accurately transcribes what is portrayed

in Government Exhibit Starved Rock Chat?” Id. at 407.

Brelsford agreed that, with the exception of two typographic errors which were corrected, “the actual context of

the communication is verbatim.” Id.
12 No. 06-3415

The court admonished the jury that they were to independently evaluate whether the evidence convinced them

that the screen names were actually used by Martin and

Burt. The court noted that there was evidence that the

screen names corresponded to those individuals, and

warned the jury that “even though [the] exhibit says

Martin and Burt . . . if I advise you that in fact it was

Starved Rock and BSomeSmoke . . . that is what it said.”

Id. at 412-13. Finally, the court clarified to the jury that

“whether or not [Martin and Burt] really authored these

statements is something that you will have to conclude.”

Id. at 413. At that point the government led agent

Brelsford through an analysis of the chat logs to clarify

what Martin and Burt had written to each other.

“It is today increasingly common to encounter the use of

demonstrative aids throughout a trial. . . . Demonstrative

aids take many forms; [including] duplicates, models,

maps, sketches and diagrams, and computer-generated

pedagogic aids.” KENNETH S. BROUN, MCCORMICK ON

EVIDENCE § 212 (2006). The decision to allow demonstrative aids rests in the discretion of the district judge. United

States v. Salerno, 108 F.3d 730, 742 (7th Cir. 1997). We

have previously upheld tapes and a tape player being

brought to the jury deliberation room. United States v.

Hofer, 995 F.2d 746, 748-49 (7th Cir. 1993). Likewise we

have upheld a district judge’s decision to allow the jury to

handle firearms that were admitted into evidence. United

States v. Burrell, 963 F.2d 976 (7th Cir. 1992). In United

States v. Welch, 945 F.2d 1378 (7th Cir. 1991), we held it

not to be an abuse of discretion for a district judge to

exclude a proffered transcript of an audio tape that

included extensive editorial commentary on defense

suspicions that the tape showed signs of being edited. In

Salerno, we upheld the district judge’s decision to admit

into evidence a scale model of a crime scene and to allow
No. 06-3415 13

the model to be brought into the deliberation room. 108

F.3d at 742.

We see no reason not to extend the logic of allowing

models, maps, sketches, and diagrams to incorporate these

particular chat excerpts as well. In this case, the excerpted

chat logs were used to aid two witnesses in interpreting

and explaining the raw computer chat logs, which forensic

examiners had recovered from Martin’s computer. Just as

a sketch or model of a crime scene can be used to help a

witness to recount aspects of testimony and to make that

testimony more accessible and understandable for the jury,

so might affixing the names of real people in place of their

aliases put the computer chat comments into a more useful

context for the witnesses and the jury.

Burt argues now that under FED. R. EVID. 403, the chat

excerpts with Martin’s and Burt’s names on them should

have been excluded as more prejudicial than probative.

Appellee’s Br. at 23-24. We give wide deference to the

district court in its exercise of discretion to balance

prejudicial and probative effects of evidence. United States

v. Adames, 56 F.3d 737, 742 (7th Cir. 1995). Burt argues

that there was little probative use in the admission of the

chat excerpts and the potential for great prejudice. We

disagree. Recall that one of the main issues in contention

in this case was whether Burt created and traded naked

pictures of children for legitimate reasons or for sexual

gratification. It was the defense’s contention that he had

legitimate commercial (non-pornographic) interests in

these photos. In that context, an internet chat where

Martin and Burt traded photos while making overtly

sexual comments had tremendous probative value on one

of the only serious points of contention between the

government and the defendant.

As for being prejudicial, Rule 403 speaks of “unfair

prejudice, confusion of the issues, or misleading the jury.”
14 No. 06-3415

There is a difference between evidence that brings unfair

prejudice and evidence that is damning. If this chat log

were being offered in a prosecution for an unrelated crime,

we might be more sympathetic to a claim that it could

unfairly prejudice a jury. Being associated with the sexual

exploitation of children tends to do that. But the point is

that in this case Burt was being prosecuted for exactly

what this chat log depicts: creating, trading, and distributing photos of children for the sexual satisfaction of himself

and his online partners. The chat may well have been

damning, but we do not see how it created unfair prejudice. We caution that allowing the government to insert

the real names in place of the screen names is a path that

a district court should be careful to tread. But the court

very clearly instructed the jury about the limited extent to

which that substitution of names could be considered by

the jury, and we emphasize that in this particular trial

nobody seriously contended that this internet chat was

conducted by anybody other than Martin and Burt. We

find no error in the admission of the raw chat logs or the

excerpted chats.

C. The Evidence of Austin’s Molestation

Finally, Burt argues that the testimony by witness

Austin about Burt’s molestation also violates FED. R. EVID.

403. Austin was one of three children called by the government during its case. Unlike witness David, whose molestation was recorded on the video which provided the

underlying pornography for one of the counts against Burt,

Austin’s molestation was not documented in any of the

photos that made up the counts against Burt. Burt argues

that Austin’s testimony was likely to unfairly prejudice the

jury in excess of any probative value it might have had.

We need only return to the heart of the defense’s case to

dispense with this argument. As noted above, Burt rested
No. 06-3415 15

much of his case on the theory that his photos were nonsexual. The government bore the burden of proving that

the photos were “lascivious exhibition of the genitals” in

violation of 18 U.S.C. § 2256(2)(A)(v). The instructions that

the judge gave to the jury on how to determine whether

nude photos meet that standard included, as one example,

“whether the picture or image is intended or designed to

elicit a sexual response in the viewer.” Tr. at 570.

Rule 404(b) allows the introduction of prior bad acts as

proof of “motive . . . intent . . . [or] plan.” FED R. EVID.

404(b). Austin’s testimony was not simply that he had once

been molested by Burt. On the contrary, his testimony

established that he was repeatedly molested during the

period when the photos in question were being taken. The

testimony also established that the molestation happened

behind closed (and locked) doors, in the same rooms of the

house where the photography sessions were conducted. His

testimony was directly relevant to the question of whether

Burt was a “hard working professional photographer”

taking pictures for a legitimate “non-pornographic website”

as the defense had stated in his opening statement, or

whether he took pictures of naked children because they

“elicit a sexual response” in him or his online partners. We

do not believe that the district court abused its discretion

in admitting the testimony.

III. CONCLUSION

The district court did not abuse its discretion in admitting the testimony of Brelsford, McDonough, or Austin.

The admission of the chat excerpts as demonstrative aids

was within the discretion of the district court, and was

properly accompanied by a limiting instruction to the jury.

Finding no error, we AFFIRM the judgment of the district

court.
16 No. 06-3415

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-26-07