F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 13, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AM ERICA
Plaintiff-Appellee, No. 05-1320
v. (D . of Colo.)
RO GER CLAPP, (D.C. No. 04-CR -192-S)
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before TA CH A, Chief Judge, HA RTZ, and TYM KOVICH, Circuit Judges. **
Defendant-Appellant Roger Clapp appeals his conviction for knowingly
receiving child pornography. He claims the evidence was not sufficient for a jury
to find him guilty of this charge. W e disagree and AFFIRM .
I. Background
Inspector Frank Graham, an undercover agent for the U.S. Postal Inspection
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
Service, posted an advertisement on the Internet offering videotapes of children
engaged in explicit sexual activities. Clapp responded to this advertisement,
requesting specific types of child pornography. Graham confirmed that he could
provide such depictions, and on January 17, 2004, Clapp ordered via email
several videotapes containing the specific depictions he had requested. In the
same email, Clapp asked about shipping costs. Graham responded that shipping
was included and asked Clapp to notify him when payment was sent. Clapp sent
an email that day, saying a check had been sent as instructed. Graham received
the check six days later.
The next day, January 24, Graham sent Clapp an email message that stated:
“Roger, I got your check. It arrived the same day that I left to visit my son and
wife in Arizona. I had to get out of this cold for a little while. As soon as I get
back I’ll get your order ready and e-mail you when it’s shipped.” Vol. II, Pg.
66–67. This message was sent to provide time for Graham to involve other postal
inspectors in a controlled delivery.
On February 6, 2004, another postal inspector posing as a letter carrier,
delivered a package containing four videotapes to Clapp at his home. The
inspector intentionally handed the package to Clapp in such a way that Clapp was
able to read the address label for a few seconds before asking whether he needed
to sign for the package. The return address label was the same address to which
Clapp had previously sent the check for the child pornography.
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About twenty-five minutes after Clapp had accepted the package, postal
inspectors obtained and executed a warrant on Clapp’s home. Officers knocked
on the door, and when Clapp answered, he appeared disheveled, with his belt and
pants zipper undone. Officers immediately discovered the four tapes, each of
which had been advanced, and one of w hich w as playing at that time on Clapp’s
VCR. Clapp admitted he had already watched a bit of each tape. During the
search, officers seized abundant evidence of child pornography from Clapp’s
home.
Officers took Clapp to the police station and interviewed him. At one point
Clapp was asked where he had gotten the four tapes at issue, to which he replied,
“The address is on the box.” Vol. III, Pg. 276.
Based on these events, Clapp was indicted in a three-count indictment.
Count I charged him with possession of child pornography, 18 U.S.C.
§ 2252A(a)(2)(A); Count II alleged receipt of child pornography, id.
§ 2252A(a)(5)(B); and Count III sought forfeiture of personal property used in the
comm ission of these crimes. Clapp pleaded guilty to Counts I and III but sought
a bench trial on Count II. The district court found him guilty of Count II and
sentenced him to 60 months in prison, the minimum sentence allowed by the
statute of conviction.
II. Analysis
Clapp argues only that his conviction on Count II was not established by
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the evidence, specifically, that the government failed to establish that he
knowingly received the child pornography. 1 W e review de novo a claim that the
evidence was insufficient to convict. United States v. Nelson, 383 F.3d 1227,
1229 (10th Cir. 2004). “Evidence is sufficient to support a conviction if a
reasonable jury could find the defendant guilty beyond a reasonable doubt, given
the direct and circumstantial evidence, along with reasonable inferences
therefrom, taken in a light most favorable to the government.” Id.
At issue here is whether the evidence was sufficient to prove that Clapp
“knowingly receive[d] . . . any child pornography that has been mailed, or
shipped or transported in interstate or foreign comm erce by any means.” 18
U.S.C. § 2252A(a)(2)(A). Clapp challenges the evidence of his mental state.
Because the email Graham sent on January 24, 2000, had informed him that the
shipment would be delayed and that another email would precede shipping, Clapp
claims that in the absence of such an email, he did not know this package
contained the child pornography he had ordered.
W e disagree. His emails specifically request certain depictions of hardcore
child pornography. It is undisputed that he ordered the materials from the address
written on the package and had time to read the address label before he accepted
delivery.
1
Clapp originally raised a constitutional challenge to the mandatory
minimum, but he has w ithdrawn that argument.
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Additionally, the record reflects that this transaction was not the only time
Clapp purchased child pornography over the Internet to be delivered through the
mail. Coupled with the other evidence of child pornography found in his house,
these facts support the finding that he knew this package was more of the same.
Although the court was not obligated to make the finding it did, it was certainly
justified in doing so.
III. Conclusion
In light of these facts, we conclude the evidence was sufficient to support
Clapp’s conviction for receipt of child pornography and AFFIRM .
Entered for the Court
Timothy M . Tymkovich
Circuit Judge
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