United States v. Sturm

• Citation: 673 F.3d 1274
• Decision Date: 13 March 2012
• Docket Number: No. 09–1386.,09–1386.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Kenneth Dean STURM, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

673 F.3d 1274

UNITED STATES of America, Plaintiff–Appellee,

v.Kenneth Dean STURM, Defendant–Appellant.

No. 09–1386.

United States Court of Appeals, Tenth Circuit.

March 13, 2012.

Kathleen A. Lord, Assistant Federal Public Defender (Raymond P. Moore, Federal Public Defender, with her on the brief), Denver, CO, for Appellant.

Martha A. Paluch, Assistant United States Attorney (David M. Gaouette, United States Attorney, Patricia W. Davies, Assistant United States Attorney, and Judith A. Smith, Assistant United States Attorney, with her on the brief), Denver, CO, for Appellee.

Before MURPHY, BALDOCK, and BRORBY, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION

Kenneth Dean Sturm seeks reversal of his convictions under 18 U.S.C. § 2252A(a)(5)(B) and (a)(2)(B) for both possession and receipt of child pornography. Sturm challenges certain jury instructions and the admission, pursuant to Fed.R.Evid. 414, of his prior conviction for a similar offense. Sturm also contends his convictions for both “possession” and “receipt” of child pornography violate the Double Jeopardy Clause of the United States Constitution.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court holds as follows: (1) it is not necessary to show an intent to distribute to support a conviction under 18 U.S.C. § 2252A(a)(2)(B) for “knowing receipt” of child pornography; (2) a prior state-law conviction may constitute an “offense of child molestation” admissible under Fed.R.Evid. 414(d)(2) notwithstanding the absence of a connection to interstate commerce; and (3) the Double Jeopardy Clause does not prohibit convictions for both possession and receipt of child pornography where separate and distinct conduct supports each charge. For these reasons, this court AFFIRMS Sturm's convictions.¹

II. BACKGROUND

Immigration and Customs Enforcement agents first became aware of Sturm during an investigation into a child pornography website. Search warrants executed on the website's servers revealed Sturm had paid $79.99 for a one-month subscription and used that subscription to access approximately 6500 images. Based on this information, a warrant to search Sturm's home was obtained and executed. This warrant ultimately led to the discovery of numerous images of child pornography on a hard drive in Sturm's possession.

The government obtained an indictment charging Sturm with (1) knowing possession of three specific images of child pornography between January 1, 2005, and May 5, 2006, in violation of 18 U.S.C. § 2252A(a)(5)(B); and (2) knowing receipt of materials containing images of child pornography on June 8, 2005, in violation of 18 U.S.C. § 2252A(a)(2)(B). At trial, Sturm did not dispute he had searched for and viewed child pornography on the internet. At the time, such conduct was not a federal crime.² Instead, Sturm sought to highlight weaknesses in the government's proof of the interstate commerce aspect of the charges, and its proof that he had knowingly downloaded the images of child pornography found on his computer. Following a nine-day trial, the jury returned guilty verdicts on both counts.

III. DISCUSSION

Sturm appeals his convictions on three primary grounds: the propriety of certain jury instructions, the admission of his prior Ohio conviction, and a Double Jeopardy Clause challenge to his convictions for both possession and receipt of child pornography.

A. Jury Instructions

1. Possession & Receipt

In enacting § 2252A, Congress made it a crime both to knowingly receive child pornography and to knowingly possess child pornography. The statute provides:

(a) Any person who—...

(1) knowingly mails, or transports or ships ... including by computer, any child pornography;

(2) knowingly receives or distributes—...

(B) any material that contains child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer; ...

(3) knowingly—

(A) reproduces any child pornography for distribution ...; or

(B) advertises, promotes, presents, distributes, or solicits ... any [child pornography]

(4) either—...

(B) knowingly sells or possesses with the intent to sell any child pornography ...;

(5) either—...

(B) knowingly possesses any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer; or ...

(6) knowingly distributes ... to a minor [child pornography] ... Shall be punished as provided in subsection (b).

18 U.S.C. § 2252A(a) (2006) (emphasis added).

The words “receives” and “possesses” are not defined in the statute, and the district court gave the words their everyday meanings. See United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221, 73 S.Ct. 227, 97 L.Ed. 260 (1952) (holding undefined terms “should be given, insofar as the language permits, a commonsensical meaning”); United States v. Bass, 411 F.3d 1198, 1201 (10th Cir.2005) (noting § 2252A “does not define possession, but in interpreting the term, we are guided by its ordinary, everyday meaning” (quotation omitted)). It therefore instructed the jury that “[p]ossession as it pertains to computer images can include proof that the defendant had control over the images in that he could copy them, review them, move them, enlarge them, print them or delete them.” The district court did not provide any clarification of the meaning of “receipt,” but instructed that “to convict [Sturm] of Possession of Child Pornography, the government does not have to prove [that he] knowingly received Child Pornography.” Finally, the district court advised the jury that “[t]he mere act of observing child pornography, without possession or receipt, is not illegal.”

Sturm contends these instructions left the jury “free to adopt its own definitions of possession and receipt,” and failed to instruct the jury that it could not convict him of “receiving” child pornography simply because he searched for it and viewed it on his computer. In particular, Sturm asserts the terms “receive” and “possess” are indistinguishably similar in their common usage. To differentiate the two, he unsuccessfully proposed a jury instruction that “ ‘receive’ means to acquire or obtain possession of material ... with intent to distribute those images.” While § 2252A(a)(2) does not expressly include an intent to distribute requirement, Sturm asserts that a scrivener's error is to blame. Sturm notes that violations of § 2252A(a)(1), (2), (3), (4), and (6) each involve, inter alia, distribution of child pornography and carry mandatory minimum sentences of five years and maximum sentences of twenty years. See 18 U.S.C. § 2252A(b)(1). A violation of § 2252A(a)(5), however, does not involve distribution, carries no mandatory minimum sentence, and has a maximum sentence of ten years. See id. § 2252A(b)(2). Sturm argues this difference suggests Congress meant to interdict receipt only with intent to distribute, thereby distinguishing receipt from possession.

Sturm claims that prior versions of § 2252A provide additional support for his “scrivener's error” theory. Congress first criminalized the receipt of child pornography in the Protection of Children Against Sexual Exploitation Act of 1977, which forbade the “knowing[ ] recei [pt] for the purpose of sale or distribution for sale ” of child pornography. Pub.L. No. 95–225, § 2252(a)(2), 92 Stat. 8 (emphasis added). The italicized language was removed from the statute by the Child Protection Act of 1984, Pub.L. No. 98–292, 98 Stat. 204, based upon Congress's determination that “much if not most child pornography material is distributed through an underground network of pedophiles who exchange the material on a non-commercial basis, and thus no sale is involved.” H.R. Rep. 99–910, at 4 (1986), 1986 U.S.C.C.A.N. 5952, 5954. Sturm argues this history reflects Congress's intention to eliminate only the commercial purpose requirement (i.e. “for sale”) from the statute, and the simultaneous elimination of the intent-to-distribute language was accidental.

This court reviews issues of statutory construction de novo. Been v. O.K. Indus., 495 F.3d 1217, 1227 (10th Cir.2007). In so doing, “we begin with the language employed by Congress, and we read the words of the statute in their context and with a view to their place in the overall statutory scheme.” Id. (quotation omitted). Courts must “ordinarily resist reading words or elements into a statute that do not appear on its face.” Bates v. United States, 522 U.S. 23, 29, 118 S.Ct. 285, 139 L.Ed.2d 215 (1997) (declining to read an “intent to defraud” requirement into 20 U.S.C. § 1097(a)). Sturm's theory, however, would require exactly that, i.e., addition of the phrase “with intent to distribute” to § 2252A(a)(2).

There is no cause to depart from the general rule in this case. First, “where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Id. at 29–30, 118 S.Ct. 285 (quotation omitted). With this principle in mind, we note Congress has prohibited the knowing reproduction of child pornography “for distribution” in § 2252A(a)(3), and § 2252A(a)(4) prohibits the possession of child pornography “with intent to sell.” The absence of any “intent to distribute” requirement from § 2252A(a)(2) is therefore presumed intentional.

That mere receipt of child pornography is punished harshly is also consistent with Congress's view that such conduct is as culpable as production and distribution. In 1996, Congress enacted § 2252A and provided separate criminal prohibitions on receipt and possession of child pornography. In doing so, it made findings about the harms flowing from such materials. See Pub.L. No. 104–208, Div. A...