PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

M  No. 08-4207 ARQUES DRAKEFORD BYNUM, a/k/a

markie_zkidluv6, a/k/a

keyido126@netzero.net,

Defendant-Appellant. 

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Martin K. Reidinger, District Judge.

(3:06-cr-00401-MR-DCK-1)

Argued: March 25, 2010

Decided: May 5, 2010

Before WILKINSON and MOTZ, Circuit Judges,

and Joseph R. GOODWIN, Chief United States District

Judge for the Southern District of West Virginia,

sitting by designation.

Affirmed by published opinion. Judge Motz wrote the opinion, in which Judge Wilkinson and Judge Goodwin joined.

COUNSEL

ARGUED: Aaron Edmund Michel, Charlotte, North Carolina, for Appellant. Adam Christopher Morris, OFFICE OF
THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: Gretchen C. F. Shappert,

United States Attorney, Charlotte, North Carolina, for Appellee.

DIANA GRIBBON MOTZ, Circuit Judge:

A jury convicted Marques Drakeford Bynum of transporting and possessing child pornography, in violation of 18

U.S.C. § 2252A (2006). The district court sentenced him to

192 months in prison. Bynum appeals, challenging his conviction and sentence. Finding no reversible error, we affirm.

I.

On July 8, 2003, FBI Special Agent Gregory Zack, working

undercover and using an informant’s password, entered a

child-pornography online chat group administered by Yahoo!

Inc. ("Yahoo"). Agent Zack observed that someone using the

moniker "markie_zkidluv6" had, on June 22, 2003, uploaded

to the group’s website a dozen photos depicting children

engaged in sexual acts. On July 10, 2003, Agent Zack again

accessed the group and observed that the same user had

uploaded several more illicit images.

In an effort to identify "markie," the FBI served an administrative subpoena on Yahoo, requesting the subscriber information "markie" had entered into the Yahoo website when he

opened his account, and the internet protocol ("IP") addresses

(numbers generated automatically by the internet service provider) associated with the user’s uploads to the Yahoo website.

Once Yahoo provided the FBI with this information, Agent

2 UNITED STATES v. BYNUM
Zack plugged the IP addresses into a free, public website that

directed him to the internet service provider associated with

those addresses, UUNET Technologies ("UUNET"). The FBI

then issued a subpoena to UUNET asking for information on

the customer associated with the IP addresses. After receiving

from UUNET an email address and telephone number—

which indicated to Agent Zack that "markie" had used a

phone-based "dial-up service and not a cable or DSL line" to

access the internet—Agent Zack subpoenaed the phone and

internet companies that operated the dial-up service.1 Drawing

from their "subscriber information" records, these companies

provided Agent Zack with Bynum’s name and the physical

address from which the uploads emanated: the Charlotte,

North Carolina home of Bynum’s mother.

On September 22, 2003, Agent Zack entered the online

chat group again and observed a third upload from "markie,"

this time containing a video entitled "4yo-refusing-cumshotwsound[1].mpg." That same day, Agent Zack accessed "markie’s" profile information, in which the user identified himself

as a 24-year-old single male living in North Carolina who

"want[s] to chat with any cute girls that live close by thats

[sic] up for a little fun." The profile also included a photo of

Bynum.

The FBI used this information to prepare an affidavit in

support of a search warrant of the Bynum home. A federal

magistrate judge issued the warrant and, during the December

2003 search that followed, the FBI found a laptop computer

in a bedroom that the agents recognized as the background for

Bynum’s profile photo. A subsequent search of the computer

revealed the images and video Agent Zack had earlier found

uploaded online, as well as 5,074 photos and 154 videos of

child pornography.

1All the administrative subpoenas served in this case requested that the

recipients not disclose to Bynum or anyone else the existence of the subpoenas. 

UNITED STATES v. BYNUM 3
Three years later, in September 2006, a federal grand jury

indicted Bynum on three counts of transporting child pornography in interstate commerce (by uploading it to Yahoo’s outof-state servers on July 8, July 10, and September 22, 2003),

see 18 U.S.C. § 2252A(a)(1), and one count of possessing

child pornography that had moved in interstate commerce, see

id. § 2252A(a)(5)(B).

Bynum moved to suppress the evidence seized during the

December 2003 search, arguing that this evidence constituted

the fruit of "unlawful administrative subpoenas," and that the

affidavit supporting the search warrant did not demonstrate

probable cause and lacked critical information. He also

moved to exclude proffered expert Government testimony as

to whether the images in question depicted real children or

were computer-generated, and thus protected under the First

Amendment. After holding separate hearings, the court denied

both motions.

Bynum proceeded to trial on the four counts charged in the

indictment. At the conclusion of the Government’s case,

Bynum moved for judgment of acquittal, which the court

denied. Bynum offered no evidence, and the jury found him

guilty on all counts. Bynum then renewed his motion for

acquittal, which the court again denied.

At sentencing, Bynum objected, without success, to the

sentence recommended in his presentence investigation

report, and advanced arguments in support of a downward

variance from the United States Sentencing Guidelines’

("U.S.S.G." or "Guidelines") advisory range of 168-210

months in prison. For its part, the Government sought an

upward variance from the Guidelines, urging the district court

to impose the maximum statutory penalty of 20 years in

prison. See 18 U.S.C. § 2252A(b)(1). Bynum elected not to

allocute. The district court denied both parties’ requests.

Instead, it imposed a mid-Guidelines sentence of 192 months’

imprisonment.

4 UNITED STATES v. BYNUM
Bynum timely noted this appeal.

II.

Bynum raises two Fourth Amendment challenges to the

district court’s refusal to suppress evidence seized during the

search of the Bynum home, including the computer that

uploaded and stored the child pornography at issue here.

"Whether certain conduct by law enforcement officers

infringes upon rights guaranteed by the Fourth Amendment is

a question of law subject to de novo review." United States

v. Breza, 308 F.3d 430, 433 (4th Cir. 2002).

A.

First, Bynum contends that the Government’s use of "secret" administrative subpoenas violated his Fourth Amendment rights. He offers no case law supporting this theory, and

we have found none.

"The ‘touchstone’ of Fourth Amendment analysis is

whether the individual has a reasonable expectation of privacy

in the area searched . . . ." Id. at 433 (quoting Oliver v. United

States, 466 U.S. 170, 177 (1984)). In order to demonstrate a

legitimate expectation of privacy, Bynum "must have a subjective expectation of privacy, and . . . that subjective expectation must be reasonable." United States v. Kitchens, 114 F.3d

29, 31 (4th Cir. 1997).

In this case, Bynum can point to no evidence that he had

a subjective expectation of privacy in his internet and phone

"subscriber information"—i.e., his name, email address, telephone number, and physical address—which the Government

obtained through the administrative subpoenas. Bynum voluntarily conveyed all this information to his internet and phone

companies. In so doing, Bynum "assumed the risk that th[os]e

compan[ies] would reveal [that information] to police." Smith

v. Maryland, 442 U.S. 735, 744 (1979). Moreover, Bynum

UNITED STATES v. BYNUM 5
deliberately chose a screen name derived from his first name,

compare "markie_zkidluv6" with "Marques," and voluntarily

posted his photo, location, sex, and age on his Yahoo profile

page.

Even if Bynum could show that he had a subjective expectation of privacy in his subscriber information, such an expectation would not be objectively reasonable. Indeed, "[e]very

federal court to address this issue has held that subscriber

information provided to an internet provider is not protected

by the Fourth Amendment’s privacy expectation." United

States v. Perrine, 518 F.3d 1196, 1204 (10th Cir. 2008) (collecting cases).

In sum, because the FBI’s administrative subpoenas did not

invade any legitimate privacy interest possessed by Bynum,

their issuance did not violate the Fourth Amendment.2

B.

Bynum also challenges the sufficiency of the affidavit supporting the search warrant. The Fourth Amendment mandates

that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the

place to be searched, and the persons or things to be seized."

U.S. Const. amend. IV. Probable cause to search exists if

2Because Bynum does not allege a privacy interest in the IP addresses

the FBI obtained from Yahoo—numbers that Bynum never possessed—he

has abandoned any such claim. See Edwards v. City of Goldsboro, 178

F.3d 231, 241 n.6 (4th Cir. 1999). Furthermore, because we decide that the

nature of the information that Bynum voluntarily conveyed carries no constitutional expectation of privacy, we need not address his argument that

the subpoenas in this case, because "secret," should be subject to a standard more stringent than "general reasonableness," Petr.’s Br. 16-17; see

In re Subpoena Duces Tecum, 228 F.3d 341, 348 (4th Cir. 2000), or the

Government’s contention that Bynum lacks Fourth Amendment standing

to contest the subpoenas because they were "directed at [internet service

providers], not at him," Govt.’s Br. 19. 

6 UNITED STATES v. BYNUM
there is "‘a fair probability that contraband or evidence of a

crime will be found in a particular place.’" United States v.

Gary, 528 F.3d 324, 327 (4th Cir. 2008) (quoting Illinois v.

Gates, 462 U.S. 213, 238 (1983)).

Bynum maintains that the affidavit supporting the search

warrant was deficient because it (1) did not disclose that June

22, 2003 was the actual date of the first two uploads (rather

than July 8 and 10, when Zack observed those uploads); (2)

did not explain why the administrative subpoenas revealed

information for July 25, 26, and 27, rather than June 22, July

8, or July 10; and (3) lacked "probable cause to believe that

the suspect would still be at t[he searched] address" in

December, six months after the first charged uploading.

Petr.’s Br. 19.

These arguments fail because Bynum presents no reason—

nor can we fathom one—as to why these minor date discrepancies, or the delay between the administrative subpoenas and

the request for a warrant, undermine the magistrate judge’s

reasonable conclusion that the home of Bynum’s mother

likely contained evidence of a crime. The affidavit established

that on July 8 and 10, the FBI observed that "markie_zkidluv6" had uploaded suspected child pornography to

the internet, and that, later in July, somebody at the Bynum

address used that screen name. Regardless of the dates of the

uploads, the affidavit plainly established a "fair probability"

that a search of the premises might uncover evidence of possession and transmission of child pornography. In a different

case, slight date discrepancies might call into question a finding of probable cause. Cf. United States v. Rattenni, 480 F.2d

195, 199 (2d Cir. 1973). Here, however, "[t]he magistrate’s

determination of probable cause rested on the actual facts of

the [illegal uploads], not [any] erroneous date[s] stated in the

warrant." Gary, 528 F.3d at 328.

Moreover, even assuming that probable cause did not support the warrant, the district court found "no bad faith" in the

UNITED STATES v. BYNUM 7
FBI’s reliance on the warrant or affidavit, which was not

"bare bones," and Bynum presents no evidence or argument

demonstrating this finding to be clearly erroneous. Therefore,

suppression of the evidence against Bynum would not serve

the deterrent purposes of the Fourth Amendment’s exclusionary rule. See id. at 329-30; United States v. Leon, 468 U.S.

897, 913 (1984) (establishing good-faith exception to exclusionary rule when "officers reasonably rely[ ] on a warrant

issued by a detached and neutral magistrate").

III.

Bynum poses two evidentiary challenges.

A.

He first contends that the Government offered insufficient

evidence that he, "rather than some other occupant or resident

or friend" at his parents’ home "was up to suspected mischief," and that "the suspected child pornography was in fact

pictures of the molestation of real children." Petr.’s Br. 21-22.3

In determining sufficiency of the evidence, "we ask whether,

viewing the evidence in the light most favorable to the gov3Bynum also contends that prosecution of those who merely transmit

and possess child pornography (as opposed to child molesters who produce child pornography) violates the First Amendment’s guarantee of free

speech. Petr.’s Br. 24-25. Our case law forecloses this argument. See

United States v. Matthews, 209 F.3d 338, 342 (4th Cir. 2000) (finding that

"[t]he protection of children clearly constitutes a ‘public welfare’ interest

justifying regulation of speech in certain circumstances," including child

pornography, and rejecting a journalist’s First Amendment defense to

transmission-of-child-pornography charges). Bynum apparently recognizes this, asserting that Matthews—the only case he cites—subordinates

"freedom" to "the misplaced policies of the government," and constitutes

an "assault on the specific designs of our founding generation." Petr.’s Br.

25. Even if this were so, Matthews is circuit precedent that we must follow

in the absence of "an en banc overruling or a superseding contrary decision of the Supreme Court." United States v. Prince-Oyibo, 320 F.3d 494,

498 (4th Cir. 2003). 

8 UNITED STATES v. BYNUM
ernment, any rational trier of facts could have found the

defendant guilty beyond a reasonable doubt." United States v.

Harvey, 532 F.3d 326, 333 (4th Cir. 2008) (internal quotation

marks omitted).

Given this deferential standard, abundant evidence supports

the jury’s conclusion that Bynum, and not someone else, committed the offenses charged in the indictment. At trial, the

Government offered evidence that the agents found the computer in question in Bynum’s bedroom, the same bedroom

visible in Bynum’s Yahoo profile photo, which had been

taken using the computer’s camera; that the computer had a

login name of "Marques" (Bynum’s first name) and contained

the actual uploaded images and video; and that, on the day of

the search, Bynum admitted that he had used the "markie"

account and kept the password on a piece of paper in his bedroom at his parents’ home. The Government also presented

evidence of chats, i.e., online conversations using instant messaging, found on that computer, in which Bynum discussed

the group and photos. Notwithstanding Bynum’s vague and

unsupported suggestions of "IP-spoofing," and assertedly

weak "ties to his mother’s home," Petr.’s Br. 21, a rational

fact finder could have found, beyond a reasonable doubt, that

Bynum knowingly possessed and transmitted child pornography.

Sufficient evidence similarly supports the jury’s conclusion

that the images and videos in question depicted real children.

See 18 U.S.C. § 2256(8)(A) (2006) (defining "child pornography" as a visual depiction the production of which "involves

the use of a minor engaging in sexually explicit conduct").

"[T]here seems to be general agreement among the circuits

that pornographic images themselves are sufficient to prove

the depiction of actual minors." United States v. Salcido, 506

F.3d 729, 734 (9th Cir. 2007) (per curiam) (collecting cases).

In other words, the Government need not present any extrinsic

evidence as to this issue, so long as the jury has had an

opportunity—as it did here—to view the relevant images. See,

UNITED STATES v. BYNUM 9
e.g., United States v. Rodriguez-Pacheco, 475 F.3d 434, 440-

41 (1st Cir. 2007). Of course, in this case the Government did

present substantial extrinsic evidence to establish that the children depicted were real minors, including testimony drawn

from the personal investigative experience of various officers

as to the identity and age of some of the children in the photos

Bynum was alleged to have transported or possessed, and testimony from FBI Analyst Peter Smith to the effect that the

images and videos in question depicted real children and did

not appear to be computer-generated. Again, a rational fact

finder could certainly conclude that the Government proved

beyond a reasonable doubt that actual minors appeared in the

photos and videos.

B.

Bynum argues next that the district court erred in admitting

the expert testimony of Analyst Smith because the Government failed to demonstrate the reliability of his methods of

determining the authenticity of child pornography. Petr.’s Br.

22-23. "We review for abuse of discretion the district court’s

decision to admit expert testimony under Federal Rule of Evidence 702."4 United States v. Wilson, 484 F.3d 267, 273 (4th

Cir. 2007).

Although not directly addressing the issue, several appellate courts have assumed that the testimony of experienced

forensic or medical professionals establishing the authenticity

of alleged child pornography constitutes appropriate expert

4Federal Rule of Evidence 702 provides as follows: 

If scientific, technical, or other specialized knowledge will assist

the trier of fact to understand the evidence or to determine a fact

in issue, a witness qualified as an expert by knowledge, skill,

experience, training, or education, may testify thereto in the form

of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable

principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. 

10 UNITED STATES v. BYNUM
testimony. See, e.g., Rodriguez-Pacheco, 475 F.3d at 437-39;

United States v. Anderton, 136 F.3d 747, 750 (11th Cir.

1998); United States v. Broyles, 37 F.3d 1314, 1317-18 (8th

Cir. 1994). Even the Supreme Court has noted the use of

experts in this context. See Ashcroft v. Free Speech Coalition,

535 U.S. 234, 254 (2002).

If, as we and other courts have held, "law enforcement officers with extensive drug experience are qualified to give

expert testimony on the meaning of drug-related code words,"

Wilson, 484 F.3d at 275, it follows that forensic photographic

investigators with extensive child pornography experience are

qualified to give expert testimony as to whether images depict

real children. For Bynum’s claim that Analyst Smith’s

"method has not been tested, or subject to peer review and

publication," and "does not have a[n] . . . error rate," Pet’r Br.

22, also is true of drug-code testimony. And as we observed

in Wilson, the Supreme Court has admonished that "‘the test

of reliability is flexible’ and ‘the law grants a district court the

same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.’" 484 F.3d at 274 (quoting Kumho Tire Co. v.

Carmichael, 526 U.S. 137, 141-42 (1999)). We concluded,

therefore, that although "[e]xperiential expert testimony . . .

does not rely on anything like a scientific method," such testimony is admissible under Rule 702 so long as an experiential

witness "explain[s] how [his] experience leads to the conclusion reached, why [his] experience is a sufficient basis for the

opinion, and how [his] experience is reliably applied to the

facts." Id. (internal quotation marks omitted).

Here, as in Wilson, "[w]e have little trouble concluding that

the district court did not abuse its discretion in qualifying

[Analyst Smith] as an expert." Id. Analyst Smith testified at

length as to his 18 years with the FBI, as well as his training

and 13 years of experience in examining "questioned photographic evidence," his completion of proficiency testing in

image authentication, and his qualification as an expert 35

UNITED STATES v. BYNUM 11
times in the past. He further testified as to exactly the steps

he takes in determining the authenticity of images under the

approved FBI "checklist," including ascertaining an image’s

resolution and focus, examining its sharpness and depth, comparing it to images in the FBI database, and identifying in the

image certain human characteristics—like skin, teeth, ears,

and hair—that are difficult to recreate by computer. Finally,

Analyst Smith testified that two other FBI employees always

review his work, and that he has never identified an image as

real that was later determined to be computer-generated.

These ample indicia of reliability preclude a finding that the

district court abused its considerable discretion in qualifying

Analyst Smith as an expert.

Moreover, even if the district court erred in admitting Analyst Smith’s testimony—which we do not believe to be the

case—the error was clearly harmless because the Government

presented to the jury the images and video, and testimony

from people who knew the actual children depicted in them.

See, e.g., Salcido, 506 F.3d at 734 ("[P]ornographic images

themselves are sufficient to prove the depiction of actual

minors.")

IV.

Finally, Bynum challenges the substantive reasonableness

of his within-Guidelines 192-month sentence. He labels this

sentence "insane," Petr.’s Br. 15, because it is "severe relative

to the sentences imposed on others," id. at 27 (charting average sentences for various other crimes by offenders in

Bynum’s criminal history category, I). Bynum argues that

"nothing about [him] or the offense" merits this sentence. Id.

at 28.

This argument also fails, for it ignores controlling federal

law. Congress defines federal crimes and establishes the

proper factors to be considered in fashioning a sentence for

those crimes. See 18 U.S.C. § 3553(a) (2006). Under this

12 UNITED STATES v. BYNUM
framework, Congress has determined that when selecting a

proper sentence, the sentences imposed on other defendants

for other crimes are irrelevant. Rather, federal law expressly

limits a sentencing court’s consideration of the sentences of

other criminals to those imposed for "the applicable category

of offense committed by the applicable category of defendant

as set forth" in the advisory Guidelines established by the

United States Sentencing Commission. Id. § 3553(a)(4)(A)

(emphases added); see also id. § 3553(a)(6) (requiring a sentencing court to consider "the need to avoid unwarranted sentence disparities among defendants with similar records who

have been found guilty of similar conduct" (emphases

added)). Bynum makes no effort to demonstrate that his midGuideline 192-month sentence is unreasonably excessive

compared to the sentences of other defendants in the same

criminal history category convicted of crimes in the same

offense level.

Moreover, Bynum does not argue that the district court otherwise unreasonably applied federal law in fashioning his sentence. If he did, such an argument would fail. Although

Congress has deemed Bynum’s personal characteristics and

history relevant in the sentencing analysis, id. § 3553(a)(1),

nothing in Bynum’s past suggests that the district court

imposed a substantively unreasonable sentence in sentencing

him within the advisory Guidelines range. See id.

§ 3553(a)(4) (directing sentencing courts to consider the recommended Guidelines range). Thus, Bynum can point to no

evidence rebutting the presumption of substantive reasonableness that we afford properly calculated within-Guidelines sentences. See Rita v. United States, 551 U.S. 338, 347 (2007);

United States v. Wright, 594 F.3d 259, 267, 268 (4th Cir.

2010).

In fact, in determining Bynum’s sentence, the district court

expressly refused to consider Bynum’s conduct leading to

2002 child pornography charges, which the Government subsequently dismissed. The court denied the Government’s

UNITED STATES v. BYNUM 13
request for an upward variance and sentenced Bynum—who

uploaded several illicit, and sometimes violent, sexual photos

and video of children to the internet, and on whose computer

authorities found more than 5000 photos and 150 videos of

child pornography—to a within-Guidelines sentence. We cannot deem this sentence substantively unreasonable.5

V.

The judgment of the district court is therefore

AFFIRMED.

5Bynum does not argue that the district court committed any procedural

sentencing error. Compare United States v. Thompson, 595 F.3d 544, 546-

48 (4th Cir. 2010). Accordingly, we can only conclude that Bynum has

"abandoned" any such contention. See United States v. Smith, 441 F.3d

254, 274 (4th Cir. 2006). Bynum’s abandonment of this contention distinguishes the case at hand from Thompson, in which the appellant forcefully

argued on appeal, indeed devoted his entire appellate brief to the claim,

that the district court committed procedural sentencing error. See Petr.’s

Br. in Thompson, available at 2009 WL 1158702. 

14 UNITED STATES v. BYNUM