United States v. Mecham

• Decision Date: 13 February 2020
• Docket Number: No. 19-40319,19-40319
• Citation: 950 F.3d 257
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Clifford Laverne MECHAM, Jr., Defendant - Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

950 F.3d 257

UNITED STATES of America, Plaintiff - Appellee

v.Clifford Laverne MECHAM, Jr., Defendant - Appellant

No. 19-40319

United States Court of Appeals, Fifth Circuit.

FILED February 13, 2020

John A. Reed, Carmen Castillo Mitchell, Assistant U.S. Attorneys, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff - Appellee.

Marjorie A. Meyers, Federal Public Defender, Evan Gray Howze, Scott Andrew Martin, Assistant Federal Public Defenders, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for Defendant - Appellant.

Before JOLLY, SMITH, and COSTA, Circuit Judges.

GREGG COSTA, Circuit Judge:

Real child pornography is not protected speech under the First Amendment. Osborne v. Ohio , 495 U.S. 103, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990) ; New York v. Ferber , 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). But virtual child pornography—sexually explicit images "created by using adults who look like minors or by using computer imaging"—is protected speech. Ashcroft v. Free Speech Coal. , 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002). This appeal asks whether the First Amendment protects pornography that falls between those two categories. The defendant superimposed the faces of actual children on pornographic photos of adults to make it appear that the minors were engaged in sexual activity. Unlike virtual pornography, this "morphed" child pornography uses an image of a real child. Like virtual pornography, however, no child actually engaged in sexually explicit conduct. Circuits disagree about whether morphed child pornography is protected speech. We agree with the majority view that morphed child pornography does not enjoy First Amendment protection, so we affirm the conviction. But the fact that the pornography was created without involving a child in a sex act does mean that a sentencing enhancement for images that display sadistic or masochistic conduct does not apply, so we remand for resentencing.

I.

Clifford Mecham took his computer to a technician for repairs. The technician discovered thousands of images showing nude bodies of adults with faces of children superimposed. The technician reported the pornography to the Corpus Christi Police Department.

After receiving this report, police executed a search warrant of Mecham’s home and seized several electronic devices. Mecham waived his Miranda rights and admitted he had added the faces of his four granddaughters to photos and videos of adults engaged in sexual conduct.

Mecham later explained why he made the images. After Mecham spent many years interacting with his grandchildren, his daughter prevented him from having any contact with her children. By creating the images, he hoped to get back at his family for cutting him off.

A forensic analysis of the items seized from Mecham’s home revealed over 30,000 pornographic files. All these photos and videos were morphed child pornography using the faces of Mecham’s grandchildren. The children were four, five, ten, and sixteen in the photos Mecham used. Mecham emailed some videos to his oldest granddaughter. One of those videos shows that granddaughter’s face on an adult female having sex. Mecham superimposed his face on the male in the video. The video uses computer animation to show the male ejaculating, with the semen shooting to the granddaughter’s mouth.

Although Mecham distributed at least some videos to his granddaughter, the grand jury charged him only with possession of child pornography. The video listed in that count lasts 8 minutes and 43 seconds. It adds the face of Mecham’s five-year-old granddaughter to a montage of photos of an adult female engaging in oral, vaginal, and anal sex. In parts of the video, Mecham’s face is morphed onto the face of the men engaging in the acts.

Mecham moved to dismiss the indictment, arguing that the First Amendment protects morphed child pornography from prosecution. The district court disagreed.

The case proceeded to a stipulated bench trial, after which the court found Mecham guilty. The court later sentenced Mecham to a prison term of 97 months.

II.

A.

Child pornography cases are frequently prosecuted in federal court. So it may be surprising that such laws are of relatively recent vintage. The history of obscenity law explains why child pornography laws are a modern development. Before the Founding, most colonies treated profanity or blasphemy as criminal offenses. Paris Adult Theatre I v. Slaton , 413 U.S. 49, 104, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973) (Brennan, J., dissenting). During the nineteenth century, state prosecutions for the publication of "lewd or obscene" material increased under the common law and statutes. Id . The federal government joined in with the Tariff Act of 1842, which barred importing obscene material, and especially with the Comstock Act of 1873, which criminalized mailing obscene material. Id . ; Smith v. United States , 431 U.S. 291, 311–313, 97 S.Ct. 1756, 52 L.Ed.2d 324 (1977) (Stevens, J., dissenting). From 1842 to 1956, Congress enacted 20 such obscenity laws. Roth v. United States , 354 U.S. 476, 485, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). With this many general obscenity laws on the books, there was no need for laws targeting sexually explicit material involving children.

Then obscenity laws came under constitutional scrutiny in the mid-twentieth century. The Supreme Court held that obscenity "is not within the area of constitutionally protected speech." Id . But that did not resolve the constitutional status of obscenity prosecutions. The Court also recognized that "sex and obscenity are not synonymous," meaning that some depictions of sex are entitled to First Amendment protection. Id . at 487, 77 S.Ct. 1304. Over the next several years, the Court grappled with drawing the line between unprotected obscenity and protected sexual material. In 1973, the Supreme Court tried to put an end to its "intractable obscenity problem" with a test requiring the government to prove that an allegedly obscene work appeals to the prurient interest, is offensive in light of community standards, and lacks serious literary, artistic, political, or scientific value. Miller v. California , 413 U.S. 15, 16, 24, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) (quoting Interstate Circuit, Inc. v. Dallas , 390 U.S. 676, 704, 88 S.Ct. 1298, 20 L.Ed.2d 225 (1968) (Harlan, J., concurring and dissenting)). Although Miller stabilized the Supreme Court’s obscenity jurisprudence, its "community standards" test did not "make obscenity readily identifiable," leaving its "prosecution difficult and fraught with constitutional challenges." Note, James H. Jeffries IV, Seizing Obscenity: New York v. P.J. Video, Inc. and the Waning of Presumptive Protection , 65 N.C. L. REV. 799, 804 (1987).

With post- Miller obscenity law an uncertain vehicle for regulating sexually explicit materials, child pornography laws emerged. In 1977, Congress passed the first federal law aimed at child pornography. See Protection of Children Against Child Exploitation Act of 1977, Pub. L. No. 95-225, 92 Stat. 7 (1978). At the time, only six states had such laws. S. REPORT NO. 95-438, at 48 (1977). By 1980, less than a decade after Miller , twenty states had laws "prohibit[ing] the distribution of material depicting children engaged in sexual conduct without requiring that the materially be legally obscene." Ferber , 458 U.S. at 749, 102 S.Ct. 3348.

New York enacted one of the early child pornography laws.¹ Id. at 750, 102 S.Ct. 3348. Its law, which criminalized distribution but not possession of child pornography, soon reached the Supreme Court. Id . at 750–51, 102 S.Ct. 3348. The Court rejected a First Amendment defense. It gave five reasons why "the States are entitled to greater leeway in the regulation of pornographic depictions of children." Id . at 756, 102 S.Ct. 3348. First, the government has a compelling interest in "safeguarding the physical and psychological well-being of a minor." Id . at 756–57, 102 S.Ct. 3348 (quoting Globe Newspaper Co. v. Superior Court , 457 U.S. 596, 607, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982) ). Second, distribution of child pornography compounds the sexual abuse of children by circulating a "permanent record" of the abuse. Id . at 759, 102 S.Ct. 3348. Third, outlawing the sale of child pornography reduces the economic incentive to create it. Id . at 761–62, 102 S.Ct. 3348. Fourth, any value of child pornography is "exceedingly modest, if not de minimis ." Id . at 762, 102 S.Ct. 3348. Fifth, categorically excluding child pornography from the First Amendment is consistent with the longstanding recognition that bans on certain types of speech escape First Amendment scrutiny when "the evil to be restricted so overwhelmingly outweighs the expressive interests, if any, at stake." Id. at 763–64, 102 S.Ct. 3348. As examples of speech categorically excluded from the First Amendment, the Court cited fighting words or libel against nonpublic figures. Id . at 763, 102 S.Ct. 3348.

Not long after Ferber the Supreme Court concluded that states may also ban possession. See Osborne , 495 U.S. at 111, 110 S.Ct. 1691. Osborne , largely echoing Ferber , cited the following reasons for its holding: punishing possession reduces demand for the pornography; a ban on possession may limit the reputational damage to the child by encouraging destruction of the images; and "evidence suggests that pedophiles use child pornography to seduce other children into sexual activity." Id . at 109–11, 110 S.Ct. 1691.

The constitutionality of child pornography laws seemed settled. But in the 1990s Congress expanded the reach of the federal statute after child pornography proliferated with the rise of personal computers and the internet. The Child Pornography Prevention Act of 1996 added both virtual and morphed child pornography to the types of depictions federal law prohibits. Free Speech Coal. , 535 U.S. at 239, 122 S.Ct. 1389.

The ban on virtual child...