U.S. v. Vig

• Decision Date: 02 February 1999
• Docket Number: 98-2003,Nos. 98-1982,s. 98-1982
• Citation: 167 F.3d 443
• Parties: 51 Fed. R. Evid. Serv. 473 UNITED STATES of America, Appellee, v. Tom VIG, Appellant. United States of America, Appellee, v. Donovan Vig, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 443

167 F.3d 443

51 Fed. R. Evid. Serv. 473

UNITED STATES of America, Appellee, v. Tom VIG, Appellant.

United States of America, Appellee, v. Donovan Vig, Appellant.

Nos. 98-1982, 98-2003.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 20, 1998.

Decided Feb. 2, 1999.

Gregg S. Peterman, Asst. U.S. Atty., Rapid City, SD, argued (Karen E. Schreier, on the brief), for Appellee.

Larry F. Hosmer, Yankton, SD, argued, for Appellant Tom Vig.

John A. Schlimgen, Sioux Falls, SD, argued, for Appellant Donovan Vig.

Before FAGG, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

BEAM, Circuit Judge.

Tom and Donovan Vig appeal their convictions, following a jury trial, ¹ for violation of section 2252(a)(4)(B) of the Protection of Children Against Sexual Exploitation Act of 1977, as subsequently amended, which prohibits the knowing possession of three or more books, magazines, periodicals, films, video tapes, or other matter containing any visual depiction of a minor engaging in sexually explicit conduct.

On appeal, Tom Vig raises one issue and Donovan Vig raises three. First, both claim that the evidence was legally insufficient to support their convictions under 18 U.S.C. § 2252(a)(4)(B). Specifically, they argue that the district court erroneously interpreted the phrase "other matter" in section 2252(a)(4)(B) to include computer image files. In addition, Donovan Vig claims that: (1) the government failed to prove that the subjects of the visual depictions were actual children; and (2) the district court erred in denying his post-trial motion for either a new trial or an evidentiary hearing based on allegations of juror misconduct. For the reasons discussed below, we affirm.

I. BACKGROUND

We briefly state the background facts and procedural history, reserving more detailed statements for the portions of this opinion in which we discuss the specific issues raised by the defendants. On or about February 19, 1997, Tom Vig took his personal home computer to PC Doctor, a computer repair and service center, in Sioux Falls, South Dakota. Vig informed James Roby, service manager at PC Doctor, that the computer was not working properly because of something that had been downloaded off the Internet. While repairing the computer, Roby came across computer images of children engaged in various forms of sexual activity. He immediately informed management of what he had seen. Management then contacted the United States Marshals office in Sioux Falls which, in turn, contacted the FBI.

A few days later, Matthew Miller, an FBI Special Agent met with Tom Vig concerning the allegation of child pornography on his computer. During the meeting, Tom Vig admitted to Miller that the computer was his and that he had seen and downloaded pictures of nude children out of curiosity. Miller requested and received Tom Vig's consent to seize and examine the computer. The following day, Miller examined the computer at PC Doctor and confirmed the existence of several images of children engaged in sexual activity on the computer's C and D hard drives. On February 24, Miller had a phone conversation with Tom Vig, during the course of which, Tom Vig explained to Miller that he used a special program to access and search various news groups on the Internet and that it was while he was in these news groups that he had seen and downloaded pictures of nude children onto the "C" drive. Miller also spoke with Tom Vig's son, Donovan Vig, who told Miller that he too accessed news groups where he had frequently seen pictures of nude children, some of whom appeared to be between five and six years old. According to Miller, but disputed by Donovan Vig at trial, Donovan Vig also admitted that he had downloaded such pictures but that he did not know why he did so.

On October 23, 1997, Tom and Donovan Vig were each charged with one count of knowingly possessing three or more computer image files in violation of 18 U.S.C. § 2252(a)(4)(B). ² A jury trial followed. At the close of the government's case, defendants made a motion for a judgment of acquittal claiming that: (1) computer files were not "other matter" within the meaning of section 2252(a)(4)(B), and therefore, the evidence was legally insufficient to convict them; and (2) the government had not met its burden of proving that the subjects of the visual depictions were real children. The court reserved ruling on the first argument until it had an opportunity to thoroughly consider the questions involved. It rejected the second argument.

On January 8, 1998, the jury found the defendants guilty. Subsequently, Donovan Vig filed a motion for a new trial based on newly discovered evidence of juror misconduct. At the sentencing hearings, the district court announced its ruling denying the defendants' motions for acquittal, as well as Donovan Vig's motion for a new trial. ³ Each defendant was sentenced to thirty-seven months' imprisonment and a $1000 fine.

II. DISCUSSION

A. "Other Matter"

In order to be found guilty of violating 18 U.S.C. § 2252(a)(4)(B), an individual must knowingly possess "3 or more books, magazines, periodicals, films, video tapes, or other matter" containing a visual depiction of a minor engaging in sexually explicit conduct. ⁴ The central issue on appeal is the appropriate meaning of the phrase "other matter" as it is used in the statute. Specifically, whether the defendants can be convicted under section 2252(a)(4)(B) when the visual depictions were saved in three or more computer image files that were located on only a single computer hard drive. ⁵

Defendants contend that "other matter" refers to the physical medium that contains the visual depictions, in this case, the computer hard drive. Therefore, they argue that the evidence presented at trial, which showed that they possessed numerous computer image files, but on only one hard drive, was insufficient to convict them of possessing three or more "other matter." The government argues, on the other hand, that "other matter" refers to the computer image files. Thus, because the evidence showed that each defendant possessed more than three such files, it was sufficient to support their convictions under the statute. In denying the defendants' motions for acquittal, the district court agreed with the government's interpretation, and held that a computer image file constitutes "other matter" within the meaning of section 2252(a)(4)(B). Defendants contend that the court's decision was based on an erroneous interpretation of the statute.

We review the district court's denial of a motion for judgment of acquittal based upon sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict. See United States v. Smith, 104 F.3d 145, 147 (8th Cir.1997). We give the government the benefit of all reasonable inferences that could logically be drawn from the evidence. See id. We must uphold the verdict if the evidence so viewed is such that there is an interpretation of the evidence that would allow a reasonable-minded jury to find the defendants guilty beyond a reasonable doubt. See id. However, the district court's interpretation of 18 U.S.C. § 2252(a)(4)(B) represents a question of law which we review de novo. See Department of Social Servs. v. Bowen, 804 F.2d 1035, 1037 (8th Cir.1986).

1. Plain Meaning of the Statute

In determining the meaning of the phrase "other matter" as it is used in 18 U.S.C. § 2252(a)(4)(B), our starting point must be the plain language of the statute. See United States v. Talley, 16 F.3d 972, 975 (8th Cir.1994). Our objective in interpreting a federal statute is to give effect to the intent of Congress. See Linquist v. Bowen, 813 F.2d 884, 888 (8th Cir.1987). Neither section 2252 nor the chapter provides a specific definition for the term "other matter" as used in this section. In such cases, we look to the ordinary, commonsense meaning of the words. See United States v. Johnson, 56 F.3d 947, 956 (8th Cir.1995). The ordinary meaning of the words is presumed to express congressional purpose. See Minnesota v. Heckler, 718 F.2d 852, 860 (8th Cir.1983). Therefore, absent clearly expressed legislative intention to the contrary, the language is regarded as conclusive. See id.

The statute prohibits the possession of "3 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction." The language indicates that "other matter" is simply something which, at a minimum, must be capable of containing a visual depiction. ⁶ The computer image files all contained one, and some more than one, visual depiction. ⁷ The Seventh Circuit's recent interpretation of the phrase "other matter" in United States v. Hall, 142 F.3d 988 (7th Cir.1998), also informs our analysis. In considering the question of whether computer image files were "other matter" under section 2252(a)(4)(B), the court in Hall noted:

Although the statute does not define "other matter" ... plain meaning suggests a prohibition of three or more of anything containing a visual depiction transported in interstate commerce. In this case, the "other matter" or "materials" are the 403 individually-named computer files.

Hall, 142 F.3d at 999.

Defendants rely heavily on United States v. Lacy, 119 F.3d 742 (9th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1571, 140 L.Ed.2d 804 (1998) in which the court, although conceding that both disks and image files could be viewed as containing visual depictions, nevertheless concluded that two canons of statutory interpretation--noscitur a sociis and ejusdem generis ⁸ --led it to believe that "matter" referred to the physical medium that contained the visual depiction--the hard drives and floppy disks. See id. at 748. We decline to adopt the Lacy court's reasoning. We are aware of the canons of statutory construction noscitur a sociis and ejusdem generis. When properly applied they are useful tools. However, these canons are "only...