United States v. Pearl

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
APR 9 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. No. 00-4170

THOMAS JARED PEARL,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 99-CR-21-ST)

Elizabethanne C. Stevens, Assistant United States Attorney, (Paul M. Warner,
United States Attorney and Stephanie D. Thacker, Trial Attorney, U.S.
Department of Justice, Child Exploitation and Obscenity Section, on the briefs),
Salt Lake City, Utah, for Plaintiff - Appellee.

Jenine M. Jensen, Assistant Federal Public Defender (and Michael G. Katz,
Federal Public Defender, on the briefs), Denver, Colorado, for Defendant -
Appellant.

Before, KELLY, PORFILIO, and BRISCOE, Circuit Judges.

KELLY, Circuit Judge.

Defendant-Appellant Thomas Jared Pearl was convicted in May 2000 of (1)

two counts of transporting child pornography by computer and transporting child
pornography by airplane in violation of 18 U.S.C. § 2252A(a)(1), (2) one count of

possession of child pornography containing images produced using materials

shipped in interstate and foreign commerce in violation of 18 U.S.C. §

2252A(a)(5)(B), (3) one count of using interstate commerce to attempt to

persuade a minor to engage in unlawful sexual conduct in violation of 18 U.S.C. §

2422(b), and (4) one count of traveling in interstate commerce to engage in sex

acts with a minor in violation of 18 U.S.C. § 2423(b). He was sentenced to 97

months imprisonment and 36 months of supervised release. On appeal, Mr. Pearl

argues that (1) the Supreme Court’s decision in Ashcroft v. Free Speech

Coalition, 122 S. Ct. 1389 (2002) (holding unconstitutional portions of the Child

Pornography Prevention Act of 1996), requires that his convictions for

transporting and possessing child pornography be reversed and that the Double

Jeopardy Clause precludes his being retried, (2) a due process violation occurred

when police allegedly destroyed evidence in the case, and (3) the district court

improperly imposed a 5-level increase under U.S.S.G. § 2G2.2(b)(2) because Mr.

Pearl received no “pecuniary gain” for distribution of pornography.

Background

Beginning in November 1998, Mr. Pearl had a series of conversations via e-

mail, Internet chat, and telephone with Camielle Call-Tarbet, a social worker in

-2-
Utah posing undercover as “Kami,” a twelve year old girl. Mr. Pearl lived in the

Washington, D.C., area at the time. Mr. Pearl sent Kami images of child

pornography and attempted to arrange to have a sexual encounter with her from

their first encounter over the Internet. Call-Tarbet contacted Detective Brad

Franke of the Logan City, Utah, police department and told him that she had

received child pornography over the Internet from an individual who apparently

also wanted to have a sexual relationship with a twelve year old girl. Detective

Franke contacted Agent Don Daufenbach of the U.S. Customs Service to aid in

the investigation.

Detective Franke posed undercover as Kami’s Uncle Dan and claimed to be

a 35 year old man attempting to molest Kami. Together with Call-Tarbet, Franke

arranged for Mr. Pearl to visit Salt Lake City in May of 1999. Mr. Pearl was

arrested upon arrival at the Salt Lake City airport on May 21, 1999. He was

carrying with him computer disks containing child pornography. A search of his

laptop computer also revealed files containing child pornography and records of

his e-mail messages.

On June 2, 1999, Mr. Pearl was indicted by a grand jury on three counts of

transporting child pornography by computer (counts 1-3), one count of

transporting child pornography by airplane (count 4), one count of possessing

child pornography (count 5), one count of coercion and enticement to engage in

-3-
sexual conduct with a minor (count 6), and one count of traveling to engage in

sexual conduct with a minor (count 7). Following a jury trial, Mr. Pearl was

found guilty of counts 2 through 7 and was found not guilty of count 1.

Discussion

A. Ashcroft v. Free Speech Coalition

The district court’s instructions to the jury on counts 2 through 5 contained

both constitutional and unconstitutional definitions of child pornography. The

court instructed the jury that child pornography is “any visual depiction . . . where

(1) the production of such visual depiction involves the use of a minor engaging

in sexually explicit conduct, or (2) such visual depiction is, or appears to be, of a

minor engaging in sexually explicit conduct.” Supp. I, Instruction 21. The “is, or

appears to be” aspect of the definition of child pornography in 18 U.S.C. §

2256(8)(B) and relied upon by the district court in its instructions to the jury, see

United States v. Pearl, 89 F. Supp. 2d 1237, 1247-48 (D. Utah 2000) (finding

“appears to be” language in statute constitutional), was found to be overbroad and

thereby unconstitutional by the Supreme Court. Free Speech Coalition, 122 S. Ct.

at 1405. Because Mr. Pearl began his challenge as to the sufficiency of the

indictment and the jury here returned a general verdict and did not specify the

grounds for conviction, we must vacate the convictions on counts 2 through 5

-4-
because one of the possible grounds for conviction is unconstitutional. See

Griffin v. United States, 502 U.S. 46, 53 (1991) (“[W]here a provision of the

Constitution forbids conviction on a particular ground, the constitutional

guarantee is violated by a general verdict that may have rested on that ground.”);

Stromberg v. California, 283 U.S. 359, 368 (1931) (“[I]f any of the clauses in

question is invalid under the Federal Constitution, the conviction cannot be

upheld.”). The government concedes that Mr. Pearl’s convictions on these counts

must be vacated in light of the Supreme Court’s ruling in Free Speech Coalition,

though appending a footnote in a later brief asking this court to affirm the

convictions outright. Aplee. Supp. Br. at 2; Aplee. 2d Supp Br. at 11 n.3.

We disagree with the dissent’s view that, because Mr. Pearl failed to object

to the jury instructions pursuant to Fed. R. Crim. P. 30, this court need only

review for plain error and can affirm the convictions. First, this court has

endorsed the view that “the application of the plain error standard is inappropriate

when the aggrieved party may object to the error at any time,” as is the case with

respect to challenges to an indictment under Fed. R. Crim. P. 12(b)(2). United

States v. Gama-Bastidas, 222 F.3d 779, 785 n.4 (10th Cir. 2000) (citations

omitted). Mr. Pearl moved to dismiss his indictment on the grounds that the

CPPA’s definition of child pornography was unconstitutionally overbroad, a view

endorsed by the Supreme Court in Free Speech Coalition. Though the safer

-5-
course would have been to pursue the argument as applied to the jury instructions,

the district court had already issued a ruling squarely finding the CPPA’s

definition of child pornography constitutional–a ruling manifested in the

erroneous jury instructions. The motion to dismiss the indictment plainly, then,

preserved Mr. Pearl’s right to challenge his convictions on appeal. See United

States v. Hathaway, 318 F.3d 1001, 1010 (10th Cir. 2003) (holding that a

“defendant cannot waive his right to challenge an indictment based upon its

failure to charge an offense”). 1**

In the cases cited by the dissent in which convictions under the CPPA were

affirmed post-Free Speech Coalition, we do not know whether the defendants

challenged the indictments, and, furthermore, the government offered expert

testimony at trial to prove that the images depicted actual minors. United States

v. Hall, 312 F.3d 1250, 1260 (11th Cir. 2002); United States v. Richardson, 304

F.3d 1061, 1064 (11th Cir. 2002). Our review of the images in this case on

appeal, however much they might appear to be actual minors, should not serve as

1
Nor are we persuaded that a review for harmless error should result in
affirming Mr. Pearl’s convictions. See United States v. Ellyson, —F.3d—, 2003
WL 1194332, at *7 (4th Cir. March 17, 2003) (holding under harmless error
review that verdict must be set aside where the government has failed “to
establish the use of an actual child victim . . . . [and] the evidence in the record,
coupled with the court’s instructions, permitted the jury to convict [the defendant]
on both a constitutional and unconstitutional basis”).

-6-
a substitute for the government’s burden of proving at trial the depiction of actual

minors. Similarly, the fact that Mr. Pearl acknowledged at trial that the images

“depict[ed] minors engaged in sexually explicit conduct,” Rec. Vol. XV at 38,

does not require affirmation of his convictions because it is precisely the

ambiguity in the word “depict” that led to the Supreme Court’s holding in Free

Speech Coalition.

Our conclusion that Mr. Pearl’s convictions on counts 2 through 5 must be

reversed does not, however, preclude retrial of Mr. Pearl on these counts, the

Double Jeopardy Clause of the Fifth Amendment notwithstanding. The

government may retry a defendant whose convictions, as here, are set aside due to

trial error without running afoul of the Double Jeopardy Clause. See United

States v. Scott, 437 U.S. 82, 90-91 (1978) (“The successful appeal of a judgment

of conviction, on any ground other than the insufficiency of the evidence to

support the verdict, poses no bar to further prosecution on the same charge.”)

(citations omitted). Where the government produces no evidence at trial, then

double jeopardy bars retrial. See United States v. Smith, 82 F.3d 1564, 1567-68

(10th Cir. 1996). That is certainly not the case here; there is sufficient evidence

in this record to permit a jury to conclude beyond a reasonable doubt that the

children in the pornographic images were actual minors. Because the government

“cannot be held responsible for ‘failing to muster’ evidence sufficient to satisfy a

-7-
standard [actual minors] which did not exist at the time of trial,” and because this

is “trial error” rather than “pure insufficiency of evidence,” Mr. Pearl may be

retried without violating double jeopardy. United States v. Wacker, 72 F.3d 1453,

1465 (10th Cir. 1995).

B. Brady/Trombetta Violations

Mr. Pearl claims that Detective Franke deleted e-mail messages and

discarded a computer hard drive relevant to the case. In particular, Mr. Pearl

alleges that Detective Franke deleted e-mail messages from Ms. Call-Tarbet sent

during the course of the investigation. According to Detective Franke, the hard

drive on the computer on which the e-mail messages were stored malfunctioned,

and he threw it in the garbage. Because entrapment was part of his defense, Mr.

Pearl claims that the e-mail messages “reveal the ongoing ‘project’ between Det.

Franke and Call-Tarbet whereby they hook ‘fish’ on the Internet, and Call-Tarbet

promotes Detective Franke as Jamasis in sex chat rooms.” Aplt. Br. at 28. Upon

Defendant’s motion for a new trial, the district court denied the motion on the

grounds that the Defendant was able to produce the e-mail messages from the

sender’s (Ms. Call-Tarbet’s) computer and cross examine Detective Franke about

the deleted e-mail messages. VI Rec. Doc. 409 at 4-6.

We review the district court’s factual finding concluding that the

government did not destroy potentially exculpatory evidence for clear error, see

-8-
United States v. Parker, 72 F.3d 1444, 1451 (10th Cir. 1995), though where “a

new trial motion is based on an alleged Brady violation,” we “review the district

court’s ruling de novo.” United States v. Quintanilla, 193 F.3d 1139, 1146 (10th

Cir. 1999). The same de novo standard is applied to the district court’s

determination whether the undisclosed evidence was material. United States v.

Hughes, 33 F.3d 1248, 1251 (10th Cir.1994). Brady v. Maryland, 373 U.S. 83

(1963) governs exculpatory material that is still in the government’s possession,

and California v. Trombetta, 467 U.S. 479 (1984), and Arizona v. Youngblood,

488 U.S. 51 (1988), govern exculpatory evidence no longer in the government’s

possession. See United States v. Gomez, 191 F.3d 1214, 1218 (10th Cir.1999).

To establish a Brady violation, a defendant must show “1) that the

prosecution suppressed evidence; 2) that the evidence was favorable to the

accused; and 3) that the evidence was material.” Smith v. Sec’y of N.M. Dep’t of

Corr., 50 F.3d 801, 824 (10th Cir. 1995) (internal quotation marks omitted). For

police destruction of evidence to rise to the level of affecting a defendant’s Due

Process rights under California v. Trombetta, the evidence “must both possess an

exculpatory value that was apparent before the evidence was destroyed, and be of

such a nature that the defendant would be unable to obtain comparable evidence

by other reasonably available means.” 467 U.S. 479, 489 (1984). In addition,

unlike a Brady analysis, the defendant must show that the government acted in

-9-
bad faith. Youngblood, 488 U.S. at 58. Because this case presents an issue of the

government’s destruction of evidence, we analyze Mr. Pearl’s claim under the

Trombetta standard.

Mr. Pearl utterly failed in his motion for a new trial to demonstrate that the

e-mail messages were exculpatory and that the government acted in bad faith. All

or virtually all of the deleted e-mail messages contained on the damaged and

discarded hard drive were contained on another drive (either Mr. Pearl’s or Ms.

Call-Tarbet’s computer), thereby failing to satisfy the “unable to obtain

comparable evidence by other reasonably available means” aspect of Trombetta

analysis. Furthermore, there was no evidence that the detective acted in bad faith.

The loss of the e-mail messages and hard drive was, at worst, the product of

negligence. Parker, 72 F.3d at 1452 (“Mere negligence is not sufficient to

establish . . . bad faith.”). Furthermore, defense counsel had an adequate

opportunity to cross examine Detective Franke concerning the deleted e-mail

messages and to raise the entrapment defense before the jury.

Mr. Pearl also argues that the district court should have held an evidentiary

hearing to determine whether loss of the e-mail messages constituted a due

process violation. We review the decision of the district court on the propriety of

an evidentiary hearing for an abuse of discretion. United States v. Nichols, 169

F.3d 1255, 1263 (10th Cir. 1999). The district court was under no obligation to

- 10 -
hold an evidentiary hearing, see United States v. Sutton, 767 F.2d 726, 729 (10th

Cir. 1985), and we find that the district court acted well within its discretion

when it decided not to hold an evidentiary hearing and instead resolved

Defendant’s Brady claim on the record. See Lawrence v. Lensing, 42 F.3d 255,

259 (5th Cir. 1994).

C. Sentencing Issues

Mr. Pearl was given a five-level increase to the guideline calculation

pursuant to U.S.S.G. § 2G2.2(b)(2). Under that section of the Guidelines, a

defendant’s sentence can be increased “[i]f the offense involved distribution.”

Distribution, in turn, is defined as “includ[ing] any act related to distribution for

pecuniary gain . . . . ,” Application Note 1. Application Note 2 to § 1B1.1

provides that “[t]he term ‘includes’ is not exhaustive.”

Because we are remanding counts 2 through 5 for retrial, we need not

address the apparent circuit split over whether an increase may be imposed absent

a pecuniary gain. Compare United States v. Laney, 189 F.3d 954, 959 (9th Cir.

1999) and United States v. Black, 116 F.3d 198, 202-03 (7th Cir. 1997)

(pecuniary gain required) with United States v. Probel, 214 F.3d 1285, 1289 (11th

Cir. 2000); United States v. Lorge, 166 F.3d 516, 518 (2d Cir. 1999); United

States v. Hibbler, 159 F.3d 233, 238 (6th Cir. 1998) and United States v. Canada,

110 F.3d 260, 263 (5th Cir. 1997) (pecuniary gain not required in order to impose

- 11 -
5-level increase).

Mr. Pearl initially contested the district court’s sentencing decision not to

group counts 4 and 5 (relating to possession and transportation of child

pornography) with counts 6 and 7 (relating to enticement and traveling to engage

in sexual activity with a minor). Aplt. Br. at 43-45. He then filed a motion to

withdraw this argument, confirming this at oral argument. Because the

convictions on counts 4 and 5 will now be vacated and remanded for retrial, it

would be premature to address this issue at this time. We thus deny the motion as

moot.

In a pro se filing to this court, Mr. Pearl seeks leave to raise a claim that

the district court erred in responding to a question from the jury about the

application of the entrapment instruction, and reasserts the argument made by his

counsel regarding the alleged Brady violation. As Mr. Pearl is represented by

counsel, we deny his motion to file an additional pro se supplemental brief which

the court received but did not file. To the extent he seeks to raise claims of

ineffective assistance of counsel, we note that “[i]neffective assistance of counsel

claims should be brought in collateral proceedings, not on direct appeal. Such

claims brought on direct appeal are presumptively dismissible, and virtually all

will be dismissed.” United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir.

1995).

- 12 -
 Conclusion

For the foregoing reasons, we VACATE the convictions on counts 2

through 5 and REMAND the case to the district court for retrial of those counts.

The convictions on counts 6 and 7 are AFFIRMED. The motion to supplement

the record with trial counsel’s letter requesting the government take into custody

various computers of law enforcement personnel is granted.

- 13 -
00-4170, United States v. Pearl

BRISCOE, Circuit Judge, concurring and dissenting:

I concur in the majority’s resolution of the Brady/Trombetta issue and its

affirmance of defendant Thomas Pearl’s convictions on Counts 6 and 7. I

respectfully dissent, however, from the majority’s decision to vacate Pearl’s

convictions on Counts 2 through 5 for transporting and possessing child

pornography.

Prior to 1996, “Congress defined child pornography as . . . images made

using actual minors.” Ashcroft v. Free Speech Coalition, 122 S. Ct. 1389, 1397

(2002). In 1996, Congress enacted the Child Pornography Prevention Act

(CPPA), 18 U.S.C. § 2251 et seq., and “extend[ed] the federal prohibition against

child pornography to [include] sexually explicit images that appear[ed] to depict

minors but were produced without using any real children.” Id. at 1396. More

specifically, the CPPA added two prohibited categories of speech: (1) 18 U.S.C. §

2256(8)(B), which prohibited “any visual depiction, including any photograph,

film, video, picture, or computer or computer-generated image or picture” that

“[wa]s, or appear[ed] to be, of a minor engaging in sexually explicit conduct”;

and (2) 18 U.S.C. § 2256(8)(D), which defined child pornography to include any

sexually explicit image that was “advertised, promoted, presented, described, or

distributed in such a manner that convey[ed] the impression” it depicted “a minor
engaging in sexually explicit conduct.”

These additional categories of prohibited speech were in place at the time

Pearl committed the acts in question and was charged in this case. Thus, Counts

2 through 5 of the indictment, which charged Pearl with transporting and

possessing “child pornography” in violation of 18 U.S.C. §§ 2252A(a)(1) and

(a)(5)(B), 1 implicitly incorporated these additional categories of prohibited

speech. After he was indicted, Pearl moved to dismiss Counts 2 through 5 of the

indictment on the grounds that the two categories of prohibited speech added by

the CPPA, 18 U.S.C. §§ 2256(8)(B) and (D), were overbroad, vague, and

unconstitutional. In support of his motion, Pearl asserted that “[n]o evidence

ha[d] yet been adduced on the record as to whether the alleged images [we]re

images of actual minors or whether the alleged images [we]re computer

‘morphed’ images, i.e., computer composite images that may contain body parts

from various individuals which are combined or ‘morphed’ into an image that is

not real.” ROA, Vol. I, Doc. 134 at 1-2. The district court denied Pearl’s motion.

At no time thereafter did Pearl question whether the images at issue showed

1
Section (a)(1) makes it a felony for any person knowingly to transport in
interstate commerce “by any means, including by computer, any child
pornography.” Section (a)(5)(B) makes it a felony for any person knowingly to
possess any “computer disk . . . that contains an image of child pornography that
has been . . . transported in interstate . . . commerce by any means, including by
computer.”

-2-
actual children engaged in explicit sexual activity. Indeed, prior to trial, Pearl

stipulated that “he knew the[] images [at issue] were child pornography and that

minors appear[ed] in the images.” ROA, Vol. IV, Doc. 351 at 2; see also id.,

Doc. 350 (minute order noting that “the dft stipulated to the fact that the images

contained child pornography and that there [we]re minors in the pictures”).

Consistent with this stipulation, at trial Pearl admitted all of the essential

elements of the child pornography-related counts and argued only that he had

been entrapped by law enforcement officers and their agents. Pearl admitted

under cross-examination that the computer diskettes seized from him at the Salt

Lake Airport contained images of child pornography and that the images depicted

minors engaged in sexually explicit conduct. 2 Likewise, Pearl admitted under

2
The following colloquy took place between the prosecutor and Pearl
concerning images contained on Pearl’s laptop computer:
Q. Mr. Pearl, when you came to Salt Lake City on May 21st, 1999,
you brought your laptop computer with you, didn’t you?
A. Yes, I did.
Q. And you also brought some computer diskettes; isn’t that right?
A. Yes, it is.
Q. Mr. Pearl, I’m handing you what have been marked Plaintiff’s
Exhibits 44-A through 44-H, 45-A through 45-K, 46-A through 46-R,
47-A through 47-F, and 48-A through 48-L. If you’ll please take a
look at these and tell the jury if these are the images that you brought
to Salt Lake City on May 21st, 1999 on those computer diskettes?
A. I would imagine, if these are the ones that were found on the
diskettes.
Q. You’re not denying those are the images, are you?
A. No, not at all.
(continued...)

-3-
cross-examination that he sent images of child pornography over the internet and

that those images showed minors engaged in sexually explicit conduct. 3 Finally,

Pearl did not move for judgment of acquittal on the grounds that the images at

issue were “virtual” rather than actual minors.

Pearl now asserts, however, that in light of the Supreme Court’s decision in

Free Speech Coalition, his child pornography-related convictions must be

reversed and the case remanded to the district court with instructions that a

judgment of acquittal be entered with respect to those counts. In support of his

assertion, Pearl notes that the district court’s instructions to the jury defined the

phrase “child pornography” to include not only visual depictions involving the use

(...continued)
2

Q. Do you agree those images depict minors engaged in sexually
explicit conduct?
A. Yes.
ROA, Vol. XV at 38.
3
The following colloquy took place between the prosecutor and Pearl
concerning images sent by Pearl over the Internet:
Q. Mr. Pearl, do you agree that you sent child pornography to Mrs.
Camielle Call-Tarbet over the Internet on May 4th, 1999?
A. Yes.
Q. Mr. Pearl, I’m handing you what have been marked as Plaintiff’s
Exhibits 8-A through 8-P. Could you please take a look at those and
tell me if those are the images that you transmitted to her that day?
A. Yeah.
Q. And you agree, do you not, that those pictures are minors
engaged in sexually explicit conduct?
A. Yes.
ROA, Vol. XV at 40.

-4-
of “a minor engaging in sexually explicit conduct,” but also the unconstitutional

language from § 2256(8)(B) encompassing visual depictions that “appear[ed] to

be . . . of a minor engaging in sexually explicit conduct.” ROA, Supp. Vol. I,

Jury Inst. No. 21. Although Pearl admits that the Double Jeopardy Clause does

not necessarily prohibit a retrial of the child pornography-related counts, he

asserts that the evidence presented at trial was insufficient to support his

convictions under the “actual minor” definition of “child pornography.”

The threshold question is what standard of review to apply to Pearl’s

arguments. Although Pearl initially objected to the constitutionality of the

“virtual” minor definition in his pretrial motion to dismiss the child pornography-

related counts of the indictment, he made no further mention of the issue after the

district court denied his motion. In particular, he failed to object, as required by

Federal Rule of Criminal Procedure 30, to the district court’s jury instruction

defining child pornography. Likewise, he failed to move for judgment of

acquittal on the grounds that the images at issue were “virtual” rather than actual

minors. I therefore conclude that the issues he now asserts are subject to review

only for plain error. E.g., United States v. Lee, 54 F.3d 1534, 1540 (10th Cir.

1995). Plain error exists when a clear or obvious error affecting substantial rights

has seriously affected the fairness, integrity, or public reputation of the judicial

proceeding. Johnson v. United States, 520 U.S. 461, 466-67 (1997).

-5-
 The majority concludes, mistakenly in my view, that Pearl’s motion to

dismiss the indictment was sufficient to preserve his current objections to the

district court’s jury instruction. In reaching this conclusion, the majority first

suggests, citing United States v. Gama-Bastidas, 222 F.3d 779, 785 n.4 (10th Cir.

2000), that application of the plain error standard is inappropriate “when the

aggrieved party may object to the error at any time.” Gama-Bastidas, however,

rests on the principle stated in Federal Rule of Criminal Procedure 12(b)(2) that

the failure of an indictment to state an offense may be raised at any time by the

defendant or the court itself. No such principle applies to objections to jury

instructions. Rather, as outlined in Federal Rule of Criminal Procedure 30

(2002), “[n]o party may assign as error any portion of the charge or omission

therefrom unless that party objects thereto before the jury retires to consider its

verdict, stating distinctly the matter to which that party objects and the grounds of

the objection.” That leads to the majority’s second rationale, i.e., that Pearl’s

motion to dismiss the indictment “plainly” preserved the issue. Maj. Op. at 6.

The only authority cited by the majority for this proposition, United States v.

Hathaway, 318 F.3d 1001, 1010 (10th Cir. 2003), is inapposite. Hathaway rests

on the same principle as Gama-Bastidas – that a defendant may raise at any time

the failure of an indictment to state an offense. It does not hold that a

defendant’s challenge to an indictment relieves him of his obligation to comply

-6-
with Rule 30.

After reviewing the record on appeal, I am convinced that the district

court’s definitional instruction, though clearly erroneous, did not affect Pearl’s

substantial rights or seriously affect the fairness, integrity, or public reputation of

the judicial proceeding. As noted, Pearl stipulated prior to trial that minors

appeared in the images at issue, and admitted this fact at trial under cross-

examination. A review of the images at issue verifies this fact – there is no doubt

that each image contains one or more minors, most of whom appear to be

prepubescent. Thus, there was no basis in the record for a reasonable jury to

conclude that the images were produced using adults who appeared to be minors.

Finally, a review of the images at issue clearly “show[s] that the children depicted

in those images were real.” United States v. Hall, 312 F.3d 1250, 1260 (11th Cir.

2002) (concluding similar instruction regarding definition of “child pornography”

was plain error but did not require reversal in light of the nature of the images

that defendant was charged with distributing). In other words, “no reasonable

jury could,” after examining the images, “have found that the images were virtual

children created by computer technology as opposed to actual children.” Id.; see

also United States v. Richardson, 304 F.3d 1061, 1064 and n.2 (11th Cir. 2002)

(concluding under similar circumstances that, because “[t]he children depicted in

th[e] images were real,” the “jury could not reasonably have found that the

-7-
children were virtual children, as if created by computer imaging technology”). 4

Thus, I conclude there was no risk that the jury convicted Pearl under the

constitutionally erroneous portion of the district court’s definitional instruction

(i.e., the “appears to be” portion of the instruction).

For these reasons, I would affirm all of Pearl’s convictions, including those

for transmitting and possessing child pornography as charged in Counts 2 through

5.

4
The majority states that in Hall and Richardson, “the government offered
expert testimony at trial to prove that the images depicted actual minors.” Maj.
Op. at 6. What the majority overlooks, however, is that in both Hall and
Richardson, the court conducted its own independent review of the images at
issue and, in each case, concluded they were of actual children. See Hall, 312
F.3d at 1260 (“the pictures sent out to the jury are in the record before this court
and they show actual children”); Richardson, 304 F.3d at 1064 (“We have
examined the images shown to the jury. The children depicted in those images
were real.”).

-8-