U.S. v. Wilson

• Citation: 182 F.3d 737
• Decision Date: 29 June 1999
• Docket Number: No. 98-1323,DEFENDANT-APPELLANT,PLAINTIFF-APPELLEE,98-1323
• Parties: (10th Cir. 1999) UNITED STATES OF AMERICA,, v. MICHAEL AARON WILSON,
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 737

182 F.3d 737 (10th Cir. 1999)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. MICHAEL AARON WILSON, DEFENDANT-APPELLANT.

No. 98-1323

U.S. Court of Appeals, Tenth Circuit

June 29, 1999

APPEAL FROM UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. No. 97-CR-313-Z)

[Copyrighted Material Omitted] Raymond P. Moore, Assistant Federal Public Defender (Michael G. Katz, Federal Public Defender, with him on the brief), Denver, Colorado, for the appellant.

Kathleen M. Tafoya, Assistant United States Attorney (Linda A. McMahan, United States Attorney, with her on the brief), Denver, Colorado, for the appellee.

Before Porfilio, Henry, and Briscoe, Circuit Judges.

Briscoe, Circuit Judge.

Defendant Michael Aaron Wilson appeals his conviction for possession of three or more matters containing visual depictions of minors engaged in sexually explicit conduct which were produced using materials shipped or transported in interstate commerce, in violation of 18 U.S.C. § 2252(a)(4)(B) (1996). We conclude the evidence presented at trial was insufficient to satisfy the jurisdictional element of the charged crime, and reverse defendant's conviction and remand with directions to enter a judgment of acquittal.

I.

United States Customs Service agents arrested Brian Gillingham in Dayton, Ohio, for possession of computerized child pornography. Gillingham cooperated with agents and gave them information regarding Randy Taylor of Denver, Colorado, with whom Gillingham had exchanged child pornography. Based upon information provided by Gillingham and materials found in his apartment, agents determined Randy Taylor was an alias used by defendant. Using an undercover persona, special agent Don Daufenbach sent two letters to defendant alleging Daufenbach was a collector of sadomasochistic child pornography involving boys. Daufenbach received two letters from defendant in which he expressed an interest in the same type of child pornography. In one of the letters, defendant indicated he had a wide variety of computerized images he was willing to trade and he included a printout of graphics files on his computer. After they exchanged letters, Daufenbach contacted defendant through an Internet "chat room," where defendant again expressed an interest in sadomasochistic child pornography involving boys. Ultimately, agents obtained and executed a search warrant for defendant's residence. Defendant cooperated in the search by directing agents to areas of his computer hard drive, as well as computer diskettes, containing child pornography.

For reasons unclear from the record, defendant was initially indicted in the District of Utah on charges of violating 18 U.S.C. § 2252(a)(1) (sexual exploitation of a minor). These proceedings (Case No. 97-CR-505) were subsequently transferred to the District of Colorado where, upon the government's motion, they were dismissed without prejudice. Defendant was reindicted in the District of Colorado (Case No. 97-CR-313Z), and three superseding indictments were subsequently filed against him (one of which was filed by the government in the original dismissed case, i.e., Case No. 97-CR-505). The final indictment, a stipulated amended superseding indictment, charged defendant with a single count of possessing three or more matters (i.e., one computer hard drive and ten computer diskettes) containing visual depictions (i.e., graphics files) of minors engaging in sexually explicit conduct which were produced using materials that had been mailed, shipped, or transported in interstate or foreign commerce, in violation of 18 U.S.C. § 2252(a)(4)(B) (1996). A jury convicted defendant for possession of the diskettes, but not for possession of the hard drive, and he was sentenced to a term of imprisonment of thirty months.

II.

Defendant contends the evidence presented at trial was insufficient to establish the jurisdictional element of the charged crime, i.e., that the visual depictions were produced using materials that had been mailed, shipped, or transported in interstate or foreign commerce. Although defendant attempts to couch this as a single issue, we conclude he has raised two related issues: (1) proper interpretation of the term "materials," as used in § 2252(a)(4)(B); and (2) whether the evidence presented at trial was sufficient to establish the requisite jurisdictional nexus.

Interpretation of § 2252(a)(4)(B)

Defendant was charged with violating 18 U.S.C. § 2252(a)(4)(B) (1996), which provided that any person who

knowingly possesses 3 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction... which was produced using materials which have been mailed or... shipped or transported [in interstate or foreign commerce], by any means including by computer, if--

(i) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and

(ii) such visual depiction is of such conduct; shall be punished as provided in subsection (b) of this section.

Defendant contends the term "materials," which is used in but not defined by the statute, refers to the "ingredients of an object--here, the ingredients or components of a visual depiction." Appellant's Br. at 18. According to defendant, this definition "precludes any contention that `materials' includes within its definitional scope tools or equipment or storage items (such as computers or floppy disks) used to hold, mold, or manipulate `materials' into a visual depiction." Id.

We review the interpretation of a federal criminal statute de novo. United States v. Martin, 163 F.3d 1212, 1214 (10th Cir. 1998), cert. denied, 119. In doing so, we begin, as we must, "with the language of the statute." Bailey v. United States, 516 U.S. 137, 144 (1995). The word "materials," as used in the statute at issue here, "must be given its `ordinary or natural' meaning." Id. at 145. The term "material" is defined in Webster's as "of, relating to, or consisting of matter." Webster's Third New Int'l Dictionary 1392 (1993). In turn, the term "matter" is defined in Webster's as "material substance of a particular kind or for a particular purpose." Id. at 1394.

Although defendant's argument is not entirely without merit when the term "materials" is viewed in isolation, we are obligated to "consider not only the bare meaning of the word but also its placement and purpose in the statutory scheme." Bailey, 516 U.S. at 145. The statute at issue here refers to "any visual depiction... which was produced using materials which have" traveled in interstate or foreign commerce. In other words, the statute clearly refers to "materials" used to produce a visual depiction. Necessarily, we believe, this encompasses not only tangible matters that go into a visual depiction (i.e., that become an "ingredient" of the visual depiction), but also tangible matters that are used to give being, form or shape to, but that do not necessarily become a part or "ingredient" of, the visual depiction.¹

In our view, defendant's proposed construction of the term "materials" effectively ignores the context in which the word appears in the statute, and thereby unduly narrows the reach of the statute. Under defendant's construction, for example, a person in possession of a computer graphics file would be in violation of the statute only if the bits of information making up the file (i.e., the 1's and 0's) had at some point traveled in interstate or foreign commerce. Thus, under defendant's interpretation, only graphics files copied from a computer located in another state or country, via the Internet or a bulletin board service (BBS), would satisfy the jurisdictional nexus.

The broader definition we adopt today comports with that implicitly adopted by the First and Eighth Circuits. In United States v. Bausch, 140 F.3d 739 (8th Cir. 1998), cert. denied, 119 S. Ct. 806 (1999), defendant was convicted of violating § 2252(a)(4)(B) based upon his possession of photographs he had personally taken of two girls, ages fifteen and sixteen, in sexually suggestive poses. Although the photographs themselves had never traveled in interstate commerce, the jurisdictional nexus was satisfied because the jury found defendant took the photographs using a Japanese camera that had been transported in interstate or foreign commerce. Thus, the "materials" used to produce the photographs were not confined to the "ingredients" of the photographs themselves, but instead encompassed objects, including the camera, that were determined to give form or shape to the photographs. See United States v. Robinson, 137 F.3d 652, 653-54 (1st Cir. 1998) (use of camera and instant film made in another state satisfied jurisdictional nexus).

Sufficiency of Evidence

Having defined the term "materials," we next determine whether, applying this definition, the evidence presented at trial was sufficient to support defendant's conviction. In other words, we must determine whether the evidence presented at trial was sufficient to demonstrate the jurisdictional nexus for which defendant was indicted, i.e., that the visual depictions² contained on the diskettes were produced using materials that traveled in interstate or foreign commerce.

Sufficiency of the evidence is a question of law reviewed de novo. United States v. Carter, 130 F.3d 1432, 1439 (10th Cir. 1997), cert. denied, 118 S. Ct. 1856 (1998). We will not reverse a conviction based upon insufficient evidence unless no rational trier of fact could have reached the disputed verdict. Id.; see Jackson v. Virginia, 443 U.S. 307, 319 (1979). In reviewing the record, we view the evidence and the reasonable inferences to be drawn therefrom in a light most favorable to the government, without weighing the evidence or considering the credibility of witnesses. Id.; United States v. Haslip, 160 F.3d 649, 652-53 (10th Cir. 1998), cert. denied, 119 S. Ct. 1346 (1999). The evidence necessary to...