U.S. v. Fabiano

• Citation: 169 F.3d 1299
• Decision Date: 05 March 1999
• Docket Number: No. 98-1048,98-1048
• Parties: 1999 CJ C.A.R. 2002 UNITED STATES of America, Plaintiff-Appellee, v. John FABIANO, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1299

169 F.3d 1299

1999 CJ C.A.R. 2002

UNITED STATES of America, Plaintiff-Appellee, v. John FABIANO, Defendant-Appellant.

No. 98-1048.

United States Court of Appeals Tenth Circuit.

March 5, 1999.

Andrew A. Vogt, Assistant United States Attorney, (Henry L. Solano, United States Attorney, with him on the brief) Denver, Colorado, for Plaintiff-Appellee.

Jill M. Wichlens, Assistant Federal Public Defender, (Michael G. Katz, Federal Public Defender, with her on the brief) Denver, Colorado, for Defendant-Appellant.

Before TACHA, BALDOCK, and MURPHY, Circuit Judges.

BALDOCK, Circuit Judge.

Defendant John Fabiano appeals his conviction for knowingly receiving child pornography in violation of 18 U.S.C. § 2252(a)(2). Defendant was charged in a fifteen-count indictment with transporting, receiving and possessing child pornography in violation of 18 U.S.C. §§ 2252(a)(1), (a)(2) and (a)(4)(B). A jury convicted him of two counts of knowingly receiving visual depictions of child pornography, in violation of § 2252(a)(2), and acquitted him on the remaining thirteen counts. The district court sentenced Defendant to 24-months imprisonment and three years of supervised release. On appeal, Defendant raises three errors. First, Defendant argues that the jury was not properly instructed regarding when Defendant had to know that the visual depictions he received were child pornography. Second, Defendant argues that the evidence was insufficient to prove that Defendant knew, prior to receiving the visual depictions, that the images depicted minors engaged in sexually explicit conduct. Finally, Defendant argues that the district court erred by ordering Defendant to comply with the requirements of the Colorado sex offender registration statute as a condition of supervised release. Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1). We affirm.

I. Background

After a tip from a confidential informant, federal law enforcement agents began monitoring a private Internet "chat room" named "Preteen." The chat room was accessible to subscribers of America Online ("AOL"). Agents monitored the activity in the Preteen chat room by logging into the room and participating in and observing the conversations among the participants. ¹ As a result, agents learned that the participants in the Preteen chat room were discussing and trading computer-generated images depicting child pornography. Agents kept chat logs, or transcripts, of the electronic conversations they were monitoring.

In April 1996, Defendant's "screen names" began appearing on the Preteen chat logs, indicating that Defendant was visiting the chat room and conversing with the other participants. On September 10, 1996, Defendant, along with other individuals logged into the chat room, received two e-mails with attached files. Attached to the first e-mail message was a file titled "3CUMFAC." Attached to the second message was a file titled "6SUK." Both files depicted children engaged in sexual acts. After receiving these files, Defendant continued to log onto the Preteen chat room for two months.

On December 11, 1996, agents searched Defendant's home in Broomfield, Colorado pursuant to a warrant. Agents seized two computers along with some computer diskettes. On February 27, 1997, Defendant was charged with fifteen counts of transporting, possessing and receiving child pornography, including two counts of knowingly receiving child pornography arising from his receipt of the two files on September 10, 1996. After an eleven-day trial, a jury convicted Defendant of these two counts of knowing receipt and acquitted him on all other charges.

II. Analysis

A. Jury Instructions

Defendant argues that the district court failed to properly instruct the jury on the Government's burden of proof regarding Defendant's knowledge of the content of the visual depictions he received. Specifically, Defendant asserts that the elements of the offense instruction failed to make clear that Defendant must have known, before he received the computer files, that they depicted minors engaged in sexually explicit conduct. Therefore, Defendant asserts that the elements of the offense instruction is erroneous.

We review a jury instruction de novo when an objection is made at trial, and for plain error when no objection was made. United States v. Pappert, 112 F.3d 1073 1076 (10th Cir.1997); see Fed.R.Crim.P. 52(b). In this case, Defendant offered an instruction on the elements of the offense, which the district court rejected. ² Defendant did not specifically object, however, to the elements instruction given by the court. By failing to object to the court's instruction, Defendant failed to put the district court "clearly on notice as to the asserted inadequacy" of the jury instruction. United States v. Duran, 133 F.3d 1324, 1330 (10th Cir.1998). Therefore, we review for plain error. See id.; see also United States v. Martinez, 776 F.2d 1481, 1484 (10th Cir.1985) (tendering jury instructions which were not given does not preserve the issue for appeal).

Under this standard, Defendant must show: (1) an "error," (2) that is "plain," which means "clear" or "obvious" under current law, and (3) that "affect[s] substantial rights." Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 1549, 137 L.Ed.2d 718 (1997) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). If these three requirements are met, then we may exercise discretion to correct the error if it "seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." Olano, 507 U.S. at 732, 113 S.Ct. 1770 (internal quotations omitted).

We must first determine whether the challenged jury instruction was error. When reviewing jury instructions for error, we view them as a whole "to determine whether the jury may have been misled, upholding the judgment in the absence of substantial doubt that the jury was fairly guided." United States v. Wiktor, 146 F.3d 815, 817 (10th Cir.1998) (internal quotations omitted).

In this case, the district court gave the following elements of the offense instruction:

The essential elements required to be proven in order to establish an offense under 18 U.S.C. § 2252(a)(2) are:

First: That the Defendant knowingly received a visual depiction which had been shipped or transported in interstate commerce by computer;

Second: That the production of the visual depiction involved, and the defendant knew it involved, the use of a minor engaging in sexually explicit conduct; and

Third: That the visual depiction was of such conduct. ³

The district court also gave separate instructions on "knowingly" and "knowingly received." The "knowingly" instruction stated:

An act is done "knowingly" if done voluntarily and intentionally, and not because of mistake or accident or other innocent reason.

In this case, the term "knowingly" refers to an awareness of the sexually explicit nature of the material, and to the knowledge that the visual depictions were in fact of minors engaged in that sexually explicit conduct.

The United States must show that the Defendant had knowledge of the general nature of the contents of the material. The Defendant need not have specific knowledge as to the actual age of the underage performer. The Defendant must have knowledge or an awareness that the material contained a visual depiction of a minor engaging in sexually explicit conduct. Such knowledge may be shown by direct or circumstantial evidence, or both. Eyewitness testimony of the Defendant's perusal of the material is not necessary to prove his awareness of its contents; the circumstances may warrant an inference that he was aware of what the material depicts. Furthermore, the Defendant's belief as to the legality or illegality of the material is irrelevant.

The district court also gave the following instruction on "knowingly received":

You are instructed that the term "knowingly received" includes knowing acceptance of requested material. The material does not have to be maintained or stored. "Knowing receipt" means more than simply having e-mail sent to a computer. If John Fabiano requested the images in question, and they were ultimately sent to him by e-mail, you may find that is sufficient to show he "knowingly received" them. If John Fabiano did not request the images in question, you may find that he did not "knowingly receive" them.

Defendant argues not only that the elements instruction was erroneous, but that the other instructions given by the Court did not cure the error. Viewing these instructions collectively, we conclude no error occurred.

First, the elements instruction comports with the requirements set forth by the Supreme Court in United States v. X-Citement Video, Inc., 513 U.S. 64, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994). In X-Citement, the Court held that the "knowingly" scienter requirement in § 2252 applies, not only to "receives," but also to "the sexually explicit nature of the material and to the age of the performers." Id. at 78, 115 S.Ct. 464. Thus, in a § 2252(a)(2) case, the Government must not only prove that the defendant "knowingly received" a visual depiction, but also that the defendant knew that the material was sexually explicit and that the performers were minors. See United States v. Cedelle, 89 F.3d 181, 185 (4th Cir.1996).

In this case, the jury was instructed by the elements instruction that Defendant must have known that the "production of the visual depiction involved ... the use of a minor engaged in sexually explicit conduct." In addition, the "knowingly" instruction informed the jury that "knowingly" refers to both "an awareness of the sexually explicit nature of the material, and to the knowledge that the visual depictions were in fact of minors engaged in that sexually explicit conduct." (emphasis added). Thus, the instructions comply with X-Citement Video.

Furthermore, the instructions, viewed...