United States v. Bycroft.
No. 24-7069. 5/5/2026. E.D.Okla. Judge Ebel. Producing Child Pornography—Videos—Other Acts Evidence—Fed. R. Civ. P. 404(b)—Relevance—Proper Purpose.
May 5, 2026
Bycroft was convicted on charges of producing child pornography. The charges arose from three videos located on her husband Jason’s Dropbox account showing Jason in a pool with a 6-year-old girl touching the girl’s upper leg and torso; moving the girl’s shorts and underwear to expose part of her groin and upper thigh; and moving the girl’s shorts and underwear to expose her genitalia (the pool videos). Bycroft is not visible in the videos, but a female voice is heard, presumably coming from the camera operator. At Bycroft’s trial, the government introduced other acts evidence under Fed. R. Civ. P. 404(b) comprising several videos that Bycroft and Jason recorded in public locations in which they intentionally positioned the camera to see up women’s skirts (the Peeping Tom videos). Bycroft is visibly identifiable in these videos by her wedding ring, her leg tattoo, and at times her face, and her voice is also audible on these recordings. The Rule 404(b) evidence was admitted for purposes of proving (1) Bycroft’s identity, (2) the absence of a mistake or accident, and (3) a common scheme or plan between the other acts and the charged acts. Four witnesses testified that they believed the voice in the pool videos was Bycroft’s.
On appeal, Bycroft argued that the district court abused its discretion by admitting the other acts evidence because the other acts evidence was irrelevant to the charged act. Bycroft asserted that the other acts evidence was not sufficiently similar to the charged act because the victim in the pool videos was a child but the victims of the Peeping Tom videos were adults; and Jason moved the girl’s clothes to expose her genitalia in the pool videos, which he did not do in the Peeping Tom videos. Other acts evidence under Rule 404(b) must be relevant, with relevance turning on similarity. Here, the evidence suggests that in both sets of videos Bycroft and Jason aimed to record the genitalia of nonconsensual females surreptitiously. The critical aspect of the conduct is the surreptitious and nonconsensual recording of female genitalia, which was identical in both sets of videos. The significant common characteristics between the Peeping Tom videos and the pool videos thus help to show Bycroft’s involvement in the charged offense. Further, Jason’s moving of the girl’s clothing in the pool videos was a product of the circumstances; simply because the two situations required different means to achieve their desired ends does not render the acts substantially dissimilar. Lastly, the temporal gap of a few years between the Peeping Tom and pool videos is insufficient to overcome the relevance of the other acts evidence. Accordingly, the district court did not abuse its discretion in determining that Bycroft’s participation in recording the Peeping Tom videos made it more probable that she was the camera operator in the pool videos.
Bycroft also argued that the other acts evidence did not serve a proper purpose. She maintained that (1) “identity” evidence under Rule 404(b) must be “signature quality,” or modus operandi, evidence; and (2) the differences between the two sets of videos do not prove the absence of a mistake or accident. First, a signature quality is only one way of proving a defendant’s identity, and where, as here, more direct evidence such as a voice and face is available to prove a defendant’s identity, it is not necessary to consider whether the evidence bears a signature quality. Second, as discussed above, the two sets of videos were not critically different. Here, the Peeping Tom videos served to establish Bycroft’s identity in the pool videos and to prove the absence of a mistake or accident in recording the pool videos, both of which are proper purposes under Rule 404(b).
The conviction was affirmed.