U.S. v. Hilton

• Decision Date: 02 April 2004
• Docket Number: No. 03-1741.,03-1741.
• Citation: 363 F.3d 58
• Parties: UNITED STATES of America, Respondent, Appellant, v. David HILTON, Petitioner, Appellee.
• Court: U.S. Court of Appeals — First Circuit

363 F.3d 58

UNITED STATES of America, Respondent, Appellant, v. David HILTON, Petitioner, Appellee.

No. 03-1741.

United States Court of Appeals, First Circuit.

Heard September 12, 2003.

Decided April 2, 2004.

F. Mark Terison, Senior Litigation Counsel, with whom Paula D. Silsby, United States Attorney, was on brief, for appellant.

Bruce M. Merrill, on brief, for appellee.

Before TORRUELLA and HOWARD, Circuit Judges, and SCHWARZER,^* Senior District Judge.

TORRUELLA, Circuit Judge.

David Hilton was convicted of a one-count violation of 18 U.S.C. § 2252A(a)(5)(B), the Child Pornography Prevention Act ("CPPA"), on June 30, 2000. In light of the Supreme Court's decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), holding that the government may not criminalize possession of non-obscene sexually explicit images that appear to, but do not in fact, depict actual children, Hilton sought and was granted post-conviction relief under 28 U.S.C. § 2255. The government appeals. Because the district court correctly held that the prosecution did not prove an element of the crime, we affirm the grant of relief vacating Hilton's conviction.

I. Procedural History

A. Indictment, Dismissal and Appeal

Based on evidence discovered by local law enforcement pursuant to a valid search warrant, a federal grand jury indicted Hilton on December 17, 1997, charging him with a one-count violation of 18 U.S.C. § 2252A(a)(5)(B).¹ Hilton moved to dismiss the indictment, arguing that the CPPA violated the First Amendment. Section 2252A(a)(5)(B) criminalizes the knowing possession of child pornography that has traveled between states or between countries. Hilton's First Amendment challenge involved the definition of "child pornography" in 18 U.S.C. § 2256(8). That provision defines child pornography to include "any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct." 18 U.S.C. § 2256(8)(B). Section 2256(8)(B) was added by Congress in 1996 after finding that "new photographic and computer imaging technologies make it possible to produce by electronic, mechanical, or other means, visual depictions of what appear to be children engaging in sexually explicit conduct that are virtually indistinguishable to the unsuspecting viewer from unretouched photographic images of actual children engaging in sexually explicit conduct." Child Pornography Prevention Act of 1996, Pub.L. No. 104-208, div. A, tit. I, § 121(1)(5), 110 Stat. 3009-26 (1996) (emphasis added).

Hilton argued that this new definition violated the First Amendment by prohibiting some adult pornography — that appearing to be of children — and by virtue of vagueness and overbreadth. The district court agreed, holding that the CPPA's "appears to be" provision was overbroad and left unclear exactly what images were illegal. The district court dismissed the indictment on March 26, 1998. United States v. Hilton, 999 F.Supp. 131 (D.Me. 1998) ("Hilton I"). The United States appealed, and this court reversed and reinstated the indictment. See United States v. Hilton, 167 F.3d 61 (1st Cir.1999) ("Hilton II").

B. Trial and Appeal

After the Supreme Court denied Hilton's petition for certiorari, the case advanced to trial. Hilton waived his right to a jury trial. After the issuance of a superseding indictment on January 5, 2000, the district court heard the case against Hilton over the course of three days. This court reviewed the district court's findings extensively in United States v. Hilton, 257 F.3d 50 (1st Cir.2001) ("Hilton IV") (reviewing United States v. Hilton, No. 97-78-P-C, 2000 WL 894679, 2000 U.S. Dist. LEXIS 9220 (D. Me. June 30, 2000) ("Hilton III")). Here we concentrate on the evidence at issue in this appeal.

The search of Hilton's computer room on November 7, 1997, produced a number of pornographic images. These were found on a Sony Backup Tape, in Hilton's hard drive, and printed up and stored in a "gray box." According to Agent Marx of the local police, whom the parties stipulated as a computer forensics expert, the Sony Backup Tape was used to back up Hilton's computer two months before seizure. The Sony tape contained thousands of images; the government introduced seven of them. The "gray box" contained a print-out with four images identical to four in the Sony tape. The hard drive contained three images, and this court on review found two to be non-explicit. See Hilton IV, 257 F.3d at 58.

To prove that these images depicted children, rather than adults, the government introduced the testimony of Dr. Lawrence Ricci. Dr. Ricci testified as to the Tanner Scale and its application to the seized images. The Tanner Scale was developed through analysis of many children both in the United States and throughout the world and provides a basis for estimating a person's stage of physiological development. Dr. Ricci marked on the backs of the images his opinion as to the children's ages. In his opinion, apart from an image that morphed a child's face with an adult woman's body, the other nine images represented children at various stages of development, ranging from pre-school to young teen. See Hilton III, 2000 WL 894679 at *7, 2000 U.S. Dist. LEXIS 9220 at *23-26.

Based on this evidence, the district court found beyond a reasonable doubt that the images satisfied the definition of child pornography in 18 U.S.C. § 2256(8). The court also found the required element of scienter and an interstate nexus. Since the court did not find merit in Hilton's affirmative defenses that he was possessing the images under authority of the government, it convicted Hilton on June 30, 2000, and subsequently sentenced him to forty months imprisonment.

Hilton appealed his conviction, challenging the constitutionality of the CPPA and the sufficiency of the evidence. He reiterated his affirmative defense that he had collected the images at the government's request. Hilton IV, 257 F.3d 50. Hilton also claimed that the district court erred in his sentencing. We rejected all but the sentencing claim. Since we concluded that two of the three hard drive images did not qualify as child pornography or involve the sexual exploitation of a minor, we remanded for resentencing because the record did not support the Sentencing Guidelines upward adjustment applied by the district court for possession of "ten or more ... items, containing a visual depiction involving the sexual exploitation of a minor." U.S.S.G. § 2G2.4(b)(2); see Hilton IV, 257 F.3d at 58. As for Hilton's constitutional challenge, we noted that we had "rejected this claim on Hilton's earlier appeal." Hilton IV, 257 F.3d at 53. Hilton asked us to reconsider our prior holding in light of the Ninth Circuit's decision in Free Speech Coalition v. Reno, 198 F.3d 1083 (9th Cir. 1999), but we declined to do so.² Id. Thus, on July 27, 2001, we affirmed Hilton's conviction and remanded for resentencing.

On remand, the district court sentenced Hilton to thirty-four months of incarceration.

C. The CPPA after Ashcroft v. Free Speech Coalition

While Hilton's direct appeal was pending, the Supreme Court granted certiorari to review the Ninth Circuit's Free Speech Coalition v. Reno, 198 F.3d 1083 (9th Cir. 1999), a civil suit challenging on its face the constitutionality of the CPPA as amended in 1996. The key challenge, and the one relevant here, was against prosecution for "child pornography" that only "appears to be, of a minor engaging in sexually explicit conduct." 18 U.S.C. § 2256(8)(B). In Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), the Court affirmed the Ninth Circuit holding that such prosecutions violate the First Amendment's protection against governmental abridgement of the freedom of speech. Id. at 258, 122 S.Ct. 1389; see U.S. Const. amend. I.

The First Amendment does not protect obscenity, Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), or the possession of child pornography produced using children. Osborne v. Ohio, 495 U.S. 103, 110, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990) ("It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute.") (quoting New York v. Ferber, 458 U.S. 747, 761-62, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) (quoting Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498, 69 S.Ct. 684, 93 L.Ed. 834 (1949))).

The CPPA is not circumscribed by the Miller definition of obscenity. Free Speech Coalition, 535 U.S. at 246, 122 S.Ct. 1389.³ Therefore, since the "appears to be" definition prohibits non-obscene speech, the Free Speech Coalition Court addressed the government's contention that the rationale behind Osborne and Ferber extended to the criminalization of sexually explicit images that appear to contain children. Those two cases viewed the trade in and possession of child pornography as bearing a proximate link to the child abuse that produced the images in the first place. See Free Speech Coalition, 535 U.S. at 249-50, 122 S.Ct. 1389. The government presented two types of arguments to show that the prohibition on virtual pornography was indeed proximate to compelling interests; one argument was based on the injuries allegedly flowing from "appears to be" child pornography and the second on prosecutorial necessity.

Two concerns motivated the first argument: (1) that "pedophiles may use virtual child pornography to seduce children," id. at 251, 122 S.Ct. 1389, and (2) that virtual child pornography "whets the appetites of pedophiles and encourages them to engage in illegal conduct." Id. at 253, 122 S.Ct. 1389....