248 F.3d 394 (5th Cir. 2001), 00-40034, United States v Fox

• Citation: 248 F.3d 394
• Party Name: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GEORGE ERVIN FOX, JR., Defendant-Appellant.
• Case Date: April 13, 2001
• Court: United States Courts of Appeals, U.S. Court of Appeals — Fifth Circuit

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248 F.3d 394 (5th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

GEORGE ERVIN FOX, JR., Defendant-Appellant.

No. 00-40034

United States Court of Appeals, Fifth Circuit

April 13, 2001

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Appeal from the United States District Court for the Eastern District of Texas.

Before WIENER and STEWART, Circuit Judges, and SMITH,^[*] District Judge.

WIENER, Circuit Judge:

In this Internet child pornography case, Defendant-Appellant George Ervin Fox, Jr. ("Fox") challenges on several grounds his conviction and sentencing pursuant to 18 U.S.C. § 2252A, which criminalizes the knowing receipt via computer of any visual depiction that is, "appears to be," or "conveys the impression of" a minor engaging in sexually explicit conduct. For the reasons discussed below, we affirm both Fox's conviction and the sentence imposed by the district court.

I.

FACTS AND PROCEEDINGS

On the morning of July 11, 1997, Fox, who was employed by a private investigation firm, informed the owner, Keith McGraw, that he (Fox) had been working at the firm's computer ("the computer")¹ when suddenly pornographic images began to appear on the screen. Fox reported that he was instigating an investigation immediately to discover the source of the

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pornography. McGraw promptly informed the FBI about the incident.

Under questioning by the FBI, Fox admitted that he had received an email the night before he reported the incident to McGraw from someone using the screen name "Opulot" who did not want to receive any more of "this stuff." In that email, Opulot stated that he or she had obtained the addressees' screen names and intended to forward them to the Internet provider, America Online, so that the addressees could be "put in jail."

Almost two years later, in March 1999, Fox gave a statement to another FBI agent that detailed a different account of how the pornography happened to be received on the computer. Although McGraw had been informed by Fox in 1997 that he was only investigating the source of pornography that had appeared mysteriously on the computer's screen, Fox admitted in the March 1999 statement to the FBI that he had "put his name on a list" to receive child pornography and subsequently began to receive and send such material. Fox insisted that he did so only as part of his own "investigation" into Internet child pornography, with the intention of turning over any "evidence" collected to the proper authorities.

Included in Fox's computer files were numerous pornographic images, 17 of which were later entered into evidence at his trial. Just three days before he initially informed McGraw about the appearance of child pornography on the computer, Fox had transmitted two of these images over the Internet, each of which depicts a young girl in a state of undress, one bearing the comment "Here's my 15-year-old-niece, Sky" and the other bearing the comment "Here's another of Poppy."

In May 1999, a grand jury returned an indictment against Fox charging him with one count of knowingly receiving child pornography via computer in violation of 18 U.S.C. § 2252A. This statute subjects to criminal penalties "any person who knowingly receives or distributes any child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer[.]" The term "child pornography," in turn, is defined by 18 U.S.C. § 2256(8) as

any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture . . . where (A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct; (B) such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct; (C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct; or (D) such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct[.]

(emphasis added). Fox's motion to dismiss the indictment on the ground that § 2252A violates the First Amendment was denied by the district court. He was subsequently tried by a jury, which found him guilty of the charge alleged in the indictment.

In sentencing Fox, the district court determined that his failure to accept responsibility for his conduct, together with the fact that "when [Fox] would send some of the pornographic photographs to others, [he] intentionally portrayed these photographs to be of himself and/or his own children," warranted a sentence at the high end of the Sentencing Guideline range. Accordingly, Fox was sentenced to

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46 months of confinement, ordered to pay a $5000 fine and a $100 special assessment, and assessed a term of supervised release of three years.

Fox now appeals to us, objecting to his conviction and sentence on grounds that (1) the statute under which he was convicted, 18 U.S.C. § 2252A, relies on a definition of "child pornography" that is overbroad and vague, in violation of the First Amendment, (2) the evidence is insufficient to sustain his conviction, (3) the district court abused its discretion in admitting into evidence copies of 17 of the images found in his computer files, (4) the district court violated the ex post facto clause by imposing a sentence that exceeds the maximum assessable under the applicable Guideline in force at the time of the offense, (5) the district court erred by increasing his offense level for receiving material involving prepubescent minors without a sufficient evidentiary basis to support such an enhancement, and (6) the district court clearly erred in denying a reduction in his sentence for acceptance of responsibility.

II.

ANALYSIS

A. Standard of Review

We review the constitutionality of a federal statute de novo.² In reviewing a claim of insufficient evidence, we must determine whether, viewing the evidence in the light most favorable to the government, a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.³ We review the district court's evidentiary rulings for abuse of discretion.⁴ The district court's interpretation of the Sentencing Guidelines is reviewed de novo, but its findings of fact and application of the Guidelines to the specific facts of the case are reviewed for clear error.⁵ In addition, we review the district court's determination of acceptance of responsibility under the Guidelines with even more deference,⁶ as the district court is in the best position to assess the defendant's acceptance of responsibility and "true remorse."⁷

B. First Amendment

Fox urges us to reverse his conviction on the ground that the statute under which he was convicted, 18 U.S.C. § 2252A (sometimes the "statute"), is unconstitutional because it prohibits speech protected by the First Amendment. The government counters that child pornography as defined in § 2256(8) is not constitutionally protected and accordingly may be regulated by the government even to the extent of banning such materials outright.

As an initial matter, Fox's contention that the power to regulate child pornography does not extend to prohibiting the mere possession of such materials was foreclosed by the Supreme Court over ten years ago in Osborne v. Ohio, which held that simply possessing and viewing child pornography can be constitutionally proscribed.⁸ The more difficult question presented

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by this case is whether Congress can, without violating the First Amendment, expand the definition of child pornography to include images that only "appear to be" minors engaged in sexually explicit conduct. Although the First, Fourth, and Eleventh Circuits have rejected identical First Amendment challenges to the statute,⁹ the Ninth Circuit has invalidated the statute on the ground that by criminalizing visual depictions that only "appear to be" or "convey the impression of" minors engaging in sexual conduct, the statute prohibits a type of expression protected under the Supreme Court's extant First Amendment jurisprudence.¹⁰

1. Strict Scrutiny

As a content-based restriction on speech,¹¹ § 2252A can only stand if it survives strict scrutiny, i.e., if the statute has been narrowly tailored to advance a compelling governmental interest.¹² Notwithstanding the general rule that "[c]ontent-based regulations are presumptively invalid"¹³ because of the intolerable "risk of suppressing protected expression," the Supreme Court has made clear that in regulating child pornography, Congress is entitled to "greater leeway."¹⁴

a. Compelling Interest

Bearing these principles in mind, we ask first whether the government advances a compelling interest by banning visual depictions that only "appear to be" or "convey the impression of" minors engaging in sexually explicit conduct. We begin with a brief overview of the history of the statutory language at issue in this case. In 1996, responding to the proliferation of computer-generated or "virtual" child pornography¹⁵ and the resulting problems in enforcing

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federal child pornography statutes that required the government to prove that an actual minor had been used in the production of the pornography, Congress enacted the Child Pornography Prevention Act (the "CPPA") to amend 18 U.S.C. § 2251 et seq. The CPPA expanded the definition of child pornography to include visual depictions that "appear to be" or "convey the impression of" minors engaging in sexually explicit conduct.

In support of the CPPA, Congress offered the following justifications: (1) preventing the use of "virtual" child pornography to seduce children; (2) protecting all children...