IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 00-40034
__________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GEORGE ERVIN FOX, JR.,
Defendant-Appellant.
___________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
___________________________________________________
April 13, 2001
Before WIENER and STEWART, Circuit Judges, and SMITH,* District
Judge.
WIENER, Circuit Judge:
In this Internet child pornography case, Defendant-Appellant
George Ervin Fox, Jr. (“Fox”) challenges on several grounds his
conviction and sentencing pursuant to 18 U.S.C. § 2252A, which
criminalizes the knowing receipt via computer of any visual
depiction that is, “appears to be,” or “conveys the impression of”
a minor engaging in sexually explicit conduct. For the reasons
discussed below, we affirm both Fox’s conviction and the sentence
*
District Judge of the Western District of Texas, sitting by
designation.
imposed by the district court.
I.
FACTS AND PROCEEDINGS
On the morning of July 11, 1997, Fox, who was employed by a
private investigation firm, informed the owner, Keith McGraw, that
he (Fox) had been working at the firm’s computer (“the computer”)1
when suddenly pornographic images began to appear on the screen.
Fox reported that he was instigating an investigation immediately
to discover the source of the pornography. McGraw promptly
informed the FBI about the incident.
Under questioning by the FBI, Fox admitted that he had
received an email the night before he reported the incident to
McGraw from someone using the screen name “Opulot” who did not want
to receive any more of “this stuff.” In that email, Opulot stated
that he or she had obtained the addressees’ screen names and
intended to forward them to the Internet provider, America Online,
so that the addressees could be “put in jail.”
Almost two years later, in March 1999, Fox gave a statement to
another FBI agent that detailed a different account of how the
pornography happened to be received on the computer. Although
McGraw had been informed by Fox in 1997 that he was only
investigating the source of pornography that had appeared
1
Fox used the computer located in McGraw’s office for
Internet purposes. His own desktop computer at the firm was not
connected to the Internet and was used primarily for word
processing.
2
mysteriously on the computer’s screen, Fox admitted in the March
1999 statement to the FBI that he had “put his name on a list” to
receive child pornography and subsequently began to receive and
send such material. Fox insisted that he did so only as part of
his own “investigation” into Internet child pornography, with the
intention of turning over any “evidence” collected to the proper
authorities.
Included in Fox’s computer files were numerous pornographic
images, 17 of which were later entered into evidence at his trial.
Just three days before he initially informed McGraw about the
appearance of child pornography on the computer, Fox had
transmitted two of these images over the Internet, each of which
depicts a young girl in a state of undress, one bearing the comment
“Here’s my 15-year-old-niece, Sky” and the other bearing the
comment “Here’s another of Poppy.”
In May 1999, a grand jury returned an indictment against Fox
charging him with one count of knowingly receiving child
pornography via computer in violation of 18 U.S.C. § 2252A. This
statute subjects to criminal penalties “any person who knowingly
receives or distributes any child pornography that has been mailed,
or shipped or transported in interstate or foreign commerce by any
means, including by computer[.]” The term “child pornography,” in
turn, is defined by 18 U.S.C. § 2256(8) as
any visual depiction, including any photograph, film,
video, picture, or computer or computer-generated image
or picture . . . where (A) the production of such visual
3
depiction involves the use of a minor engaging in
sexually explicit conduct; (B) such visual depiction is,
or appears to be, of a minor engaging in sexually
explicit conduct; (C) such visual depiction has been
created, adapted, or modified to appear that an
identifiable minor is engaging in sexually explicit
conduct; or (D) such visual depiction is advertised,
promoted, presented, described, or distributed in such a
manner that conveys the impression that the material is
or contains a visual depiction of a minor engaging in
sexually explicit conduct[.]
(emphasis added). Fox’s motion to dismiss the indictment on the
ground that § 2252A violates the First Amendment was denied by the
district court. He was subsequently tried by a jury, which found
him guilty of the charge alleged in the indictment.
In sentencing Fox, the district court determined that his
failure to accept responsibility for his conduct, together with the
fact that “when [Fox] would send some of the pornographic
photographs to others, [he] intentionally portrayed these
photographs to be of himself and/or his own children,” warranted a
sentence at the high end of the Sentencing Guideline range.
Accordingly, Fox was sentenced to 46 months of confinement, ordered
to pay a $5000 fine and a $100 special assessment, and assessed a
term of supervised release of three years.
Fox now appeals to us, objecting to his conviction and
sentence on grounds that (1) the statute under which he was
convicted, 18 U.S.C. § 2252A, relies on a definition of “child
pornography” that is overbroad and vague, in violation of the First
Amendment, (2) the evidence is insufficient to sustain his
conviction, (3) the district court abused its discretion in
4
admitting into evidence copies of 17 of the images found in his
computer files, (4) the district court violated the ex post facto
clause by imposing a sentence that exceeds the maximum assessable
under the applicable Guideline in force at the time of the offense,
(5) the district court erred by increasing his offense level for
receiving material involving prepubescent minors without a
sufficient evidentiary basis to support such an enhancement, and
(6) the district court clearly erred in denying a reduction in his
sentence for acceptance of responsibility.
II.
ANALYSIS
A. Standard of Review
We review the constitutionality of a federal statute de novo.2
In reviewing a claim of insufficient evidence, we must determine
whether, viewing the evidence in the light most favorable to the
government, a rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt.3 We review the
district court’s evidentiary rulings for abuse of discretion.4 The
district court’s interpretation of the Sentencing Guidelines is
reviewed de novo, but its findings of fact and application of the
Guidelines to the specific facts of the case are reviewed for clear
2
United States v. Jennings, 195 F.3d 795, 800 (5th Cir.
1999).
3
United States v. Greer, 137 F.3d 247, 249 (5th Cir. 1998).
4
United States v. Doggett, 230 F.3d 160, 167 (5th Cir.
2000).
5
error.5 In addition, we review the district court’s determination
of acceptance of responsibility under the Guidelines with even more
deference,6 as the district court is in the best position to assess
the defendant's acceptance of responsibility and "true remorse."7
B. First Amendment
Fox urges us to reverse his conviction on the ground that the
statute under which he was convicted, 18 U.S.C. § 2252A (sometimes
the “statute”), is unconstitutional because it prohibits speech
protected by the First Amendment. The government counters that
child pornography as defined in § 2256(8) is not constitutionally
protected and accordingly may be regulated by the government even
to the extent of banning such materials outright.
As an initial matter, Fox’s contention that the power to
regulate child pornography does not extend to prohibiting the mere
possession of such materials was foreclosed by the Supreme Court
over ten years ago in Osborne v. Ohio, which held that simply
possessing and viewing child pornography can be constitutionally
proscribed.8 The more difficult question presented by this case is
5
United States v. Lyckman, 235 F.3d 234, 237 (5th Cir.
2000).
6
United States v. Nguyen, 190 F.3d 656, 659 (5th Cir. 1999).
7
United States v. Rodriguez, 942 F.2d 899, 902-03 (5th Cir.
1991).
8
495 U.S. 103, 111 (1990); see also United States v. Hilton,
167 F.3d 61, 63 (1st Cir. 1999)(“[I]t is well-settled that child
pornography, an unprotected category of expression identified by
its content, may be freely regulated.”).
6
whether Congress can, without violating the First Amendment, expand
the definition of child pornography to include images that only
“appear to be” minors engaged in sexually explicit conduct.
Although the First, Fourth, and Eleventh Circuits have rejected
identical First Amendment challenges to the statute,9 the Ninth
Circuit has invalidated the statute on the ground that by
criminalizing visual depictions that only “appear to be” or “convey
the impression of” minors engaging in sexual conduct, the statute
prohibits a type of expression protected under the Supreme Court’s
extant First Amendment jurisprudence.10
1. Strict Scrutiny
As a content-based restriction on speech,11 § 2252A can only
9
See United States v. Hilton, 167 F.3d 61 (1st Cir. 1999);
United States v. Mento, 231 F.3d 912 (4th Cir. 2000); United
States v. Acheson, 195 F.3d 645 (11th Cir. 1999).
10
Free Speech Coalition v. Reno 198 F.3d 1083, 1092 (9th
Cir. 1999), cert. granted sub nom. Ashcroft v. Free Speech
Coalition, No. 00-795, 121 S.Ct. 876, 69 USLW 3382 (U.S. Jan. 22,
2001). We recognize that this circuit split will most likely be
resolved by the Supreme Court when it hears and decides Free
Speech Coalition, but as the Supreme Court will not do so until
next term, and Fox has not asked us to postpone deciding his case
until then, we reach and decide the issue of § 2252A’s
constitutionality.
11
In his dissent to Free Speech Coalition, Judge Ferguson
objects, inter alia, to analysis of the statute under the strict
scrutiny framework, contending that “the Supreme Court’s previous
child pornography decisions . . . indicate that the proper mode
of analysis is to weigh the state’s interest in regulating child
pornography against the material’s limited social value.” See
198 F.3d at 1101 (Ferguson, J., dissenting). As Fox’s challenge
to the statute is based on a claim that the very definition of
child pornography employed by the statute is unconstitutionally
expansive, however, we agree with every circuit that has
7
stand if it survives strict scrutiny, i.e., if the statute has been
narrowly tailored to advance a compelling governmental interest.12
Notwithstanding the general rule that “[c]ontent-based regulations
are presumptively invalid”13 because of the intolerable “risk of
suppressing protected expression,” the Supreme Court has made clear
that in regulating child pornography, Congress is entitled to
“greater leeway.”14
a. Compelling Interest
Bearing these principles in mind, we ask first whether the
government advances a compelling interest by banning visual
depictions that only “appear to be” or “convey the impression of”
minors engaging in sexually explicit conduct. We begin with a
brief overview of the history of the statutory language at issue in
this case. In 1996, responding to the proliferation of computer-
generated or “virtual” child pornography15 and the resulting
considered this issue that strict scrutiny is the proper mode of
analysis.
12
See United States v. Playboy Entertainment Group, Inc.,
529 U.S. 803, 120 S.Ct. 1878, 1886 (2000) (citation omitted).
13
See R.A.V. v. St. Paul, 505 U.S. 377, 382 (1992).
14
See New York v. Ferber, 458 U.S. 747, 756 (1982).
15
For example, Congress found that computers and computer
imaging technology can be used to “[1] produce . . . visual
depictions of what appear to be children engaging in sexually
explicit conduct that are virtually indistinguishable to the
unsuspecting viewer from unretouched photographic images of
actual children engaging in sexually explicit conduct . . . [2]
alter sexually explicit photographs, films, and videos in such a
way as to make it virtually impossible . . . to determine if the
8
problems in enforcing federal child pornography statutes that
required the government to prove that an actual minor had been used
in the production of the pornography, Congress enacted the Child
Pornography Prevention Act (the “CPPA”) to amend 18 U.S.C. § 2251
et seq. The CPPA expanded the definition of child pornography to
include visual depictions that “appear to be” or “convey the
impression of” minors engaging in sexually explicit conduct.
In support of the CPPA, Congress offered the following
justifications: (1) preventing the use of “virtual” child
pornography to seduce children; (2) protecting all children from
the harmful effects of child pornography, including the myriad
minors not actually depicted or used in its production; (3)
eliminating pornographic images that “whet the appetites” of
pedophiles to abuse children sexually; (4) destroying the child
pornography market, and (5) prosecutorial necessity.16 Congress was
particularly concerned that “[i]f the government must continue to
prove beyond a reasonable doubt that mailed photos, smuggled
magazines or videos, traded pictures, and computer images being
transmitted on the Internet, are indeed actual depictions of an
actual minor engaging [in] the sex portrayed, then there could be
a built-in reasonable doubt argument in every child
offending material was produced using children . . . [and] [3]
alter innocent pictures of children to create visual depictions
of those children engaging in sexual conduct[.]” S. Rep. No.
104-358, at 2 (1996).
16
See id. at 12-20.
9
exploitation/pornography prosecution."17
In rejecting these justifications for § 2252A’s ban on
“virtual” child pornography, the Ninth Circuit reasoned that the
landmark case of New York v. Ferber, in which the Supreme Court
held that child pornography is not entitled to protection under the
First Amendment,18 the Court focused on only “the harm to the
children actually used in the production of the materials.”19
Accordingly, the Ninth Circuit concluded that “[n]othing in Ferber
can be said to justify the regulation of such materials other than
the protection of the actual children used in the production of the
materials.”20 The Ninth Circuit ultimately held that the compelling
interest articulated by the government —— the “devastating
secondary effect that sexually explicit materials involving the
images of children have on society, and on the well being of
children”21 —— does not justify criminalizing the possession of such
images “when no actual children are involved in the illicit images
either by production or depiction.”22
We respectfully disagree with the Ninth Circuit’s
17
See id. at 16 (internal quotation marks omitted).
18
458 U.S. 747, 764 (1982).
19
Free Speech Coalition, 198 F.3d at 1092 (emphasis added).
20
Id.
21
Id. at 1091.
22
Id. at 1095.
10
determination that preventing harm to children actually depicted in
pornography is the only legitimate justification for Congress’s
criminalizing the possession of child pornography. First, in
Osborne, the Supreme Court expressly invoked not only the harm
caused to minors actually used in the production of pornography but
also the danger posed to children when such pornography is used to
seduce or coerce them into sexual activity.23 It makes little
difference to the children coerced by such materials, or to the
adult who employs them to lure children into sexual activity,
whether the subjects depicted are actual children or computer
simulations of children. As Congress found, “the danger to actual
children who are seduced and molested with the aid of child sex
pictures is just as great when the child pornographer or child
molester uses [computer simulations] as when the material consists
of unretouched images of actual children.”24
Second, the Ferber Court expressly endorsed the destruction of
the entire child pornography market as a justification for banning
sexually explicit images of children.25 Congress has found that,
even when children are not exploited in the actual production of
23
See Osborne, 495 U.S. at 111 (“the evidence suggests that
pedophiles use child pornography to seduce other children into
sexual activity”).
24
S. Rep. 104-358, at 18.
25
Ferber, 458 U.S. at 760 (noting with approval that “[t]he
most expeditious if not the only practical method of law
enforcement may be to dry up the market for [child
pornography]”).
11
pornography, the “sexualization of minors creates an unwholesome
environment which affects the psychological, mental, and emotional
development of children and undermines the efforts of parents and
families to encourage the sound mental, moral, and emotional
development of children[.]”26 This finding comports with the
Supreme Court’s longstanding observation that “[a] democratic
society rests, for its continuance, upon the healthy, well-rounded
growth of young people into full maturity as citizens.”27 As it is
beyond question that the government’s interest in “‘safeguarding
the physical and psychological well-being of a minor’ is
‘compelling,’”28 we see no reason why such governmental interest in
this regard is so attenuated as to limit the extent of its
protection only to the youths actually appearing in child
pornography.
In sum, we conclude that Ferber and Osborne, decided long
before the specter of “virtual” child pornography appeared, in no
way limit the government’s interests in the area of child
pornography to the prevention of only the harm suffered by the
actual children who participate in the production of pornography.
To the contrary, we agree with the Fourth Circuit that the
government has an interest in “shielding all children from sexual
26
S. Rep. 104-358, at 2.
27
Prince v. Massachusetts, 321 U.S. 158, 168 (1944).
28
See Ferber, 458 U.S. 756-57 (quoting Globe Newspaper Co.
v. Superior Court, 457 U.S. 596, 607 (1982)).
12
exploitation resulting from child pornography,”29 and that the
government’s interest in this regard is indeed compelling.
b. Narrow Tailoring
To satisfy the exacting standards of strict scrutiny, a
content-based restriction on speech such as § 2252A must not only
advance a compelling governmental interest, but must also be
narrowly tailored to attain that end.30 We must determine,
therefore, whether § 2252A’s expansion of the definition of child
pornography to include, in addition to sexually explicit images of
actual children, images that only “appear to be” minors, is the
least restrictive means of furthering the government’s interests in
combating the harms generated by child pornography.31
With respect to the government’s interest in eradicating the
market for child pornography as a whole, we are satisfied that such
efforts “could be effectively frustrated if Congress were prevented
from targeting sexually explicit material that ‘appears to be’ of
real children.”32 Likewise, with respect to the government’s
interest in preventing the use of pornographic materials to coerce
and even blackmail children into performing sexual acts, we have
discussed earlier that sexually explicit images that only “appear
29
Mento, 231 F.3d at 920.
30
See Playboy Entertainment Group, 120 S.Ct. at 1886.
31
See Sable Communications of Cal., Inc. v. FCC, 492 U.S.
115, 126 (1989).
32
Hilton, 167 F.3d at 73.
13
to be” minors can, unfortunately, be just as effective in coercing
children into sexual activity as images of actual children.
Perhaps most importantly, Congress has advanced a powerful new
rationale for the necessity of the “appears to be” language in §
2252A: the need to address the law enforcement problem created by
tremendous advances in computer technology since Ferber and Osborne
were decided, advances that have greatly exacerbated the already
difficult prosecutorial burden of proving that an image is of a
real child.33 Without the “appears to be” language in the statute,
“there is frequently a built-in reasonable-doubt argument as to the
age of the participant, unless the government can identify the
actual child involved.”34 During the trial in the instant case, for
example, Special Agent Barkhausen, the government’s computer
expert, was forced to concede under cross-examination that “there’s
no way of actually knowing that the individual depicted [in the
images] . . . even exists[.]” The “appears to be” language, then,
is necessary to confront the enforcement problems that have been
increased by these advancements in computer technology.
As further evidence of the statute’s narrow tailoring, the
government points to the statute’s provision that makes an
affirmative defense available to those who mail, transport,
receive, sell, distribute or reproduce the materials if the person
33
S. Rep. 104-358, at 16-17.
34
Mento, 231 F.3d at 920.
14
depicted actually was an adult at the time the image was created.35
Although this defense is not available to those charged with mere
possession, the statute does provide a different safe harbor for
the individual possessor who can show that he (1) possessed fewer
than three such images and (2) promptly and in good faith destroyed
or reported the images to law enforcement.36
The statute’s inclusion of these affirmative defenses,
together with the prosecutorial necessity of the “appears to be”
language and the nearly identical nature of the harms generated by
both “real” and “virtual” child pornography, convince us that “the
statutory language . . . cannot be improved upon while still
achieving the compelling government purpose of banning child
pornography.”37 Accordingly, we conclude that § 2252A is the least
restrictive means of furthering the government’s compelling
interest in protecting the vulnerable young from the harms
generated by child pornography.
We join with the First, Fourth, and Eleventh Circuits, then,
in deciding that “it is a logical and permissible extension of the
rationales of Ferber and Osborne to allow the regulation of sexual
materials that appear to be of children but [do] not, in fact,
35
See 18 U.S.C. § 2252A(c).
36
See 18 U.S.C. § 2252A(d).
37
Mento, 231 F.3d at 921.
15
involve the use of live children in their production.”38 As such
materials are properly considered “child pornography,” they are
outside the protection of the First Amendment and may be freely
regulated even to the extent of an outright ban. Accordingly, we
hold that § 2252A’s extension of the prohibition on child
pornography to visual depictions that “appear to be” or “convey the
impression of” minors engaging in sexually explicit conduct is
fully consonant with the First Amendment.
2. Overbreadth
Our conclusion that “virtual” child pornography, like “real”
child pornography, is not entitled to First Amendment protection
does not end our inquiry into § 2252A’s constitutionality. An
otherwise constitutional statute may nonetheless violate the First
Amendment if it is “overbroad,” i.e., if it “criminalizes an
intolerable range of constitutionally protected conduct.”39 Even
so, we may not invalidate a statute unless its overbreadth is
“substantial . . . in relation to the statute’s plainly legitimate
sweep.”40 We must remain mindful of the Supreme Court’s admonition
that the overbreadth doctrine is “strong medicine” which should be
used “sparingly and only as a last resort.”41
38
Hilton, 167 F.3d at 73.
39
See Osborne, 495 U.S. at 112.
40
Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973) (emphasis
added).
41
Id. at 613.
16
Fox’s overbreadth challenge is best understood as a claim
that, in addition to capturing unprotected conduct, the “appears to
be” net of the statute scoops in a “substantial” by-catch of
constitutionally protected conduct as well. Fox contends, for
example, that if the persons depicted are not in fact minors, then
the images comprise adult pornography and, as such, are entitled to
protection under the First Amendment. In essence, “[i]t is the
application of the statute to images of youthful-looking adult
models”42 that forms the gravamen of Fox’s overbreadth challenge.
We have already noted that the statute itself provides an
affirmative defense available to those who mail, transport,
receive, sell, distribute or reproduce sexually explicit materials
if the person depicted actually was an adult at the time the images
were created.43 In addition, the government must prove in each
instance that the defendant knowingly received sexually explicit
depictions of minors or those who appear to be minors. Thus the
statute’s scienter requirement, which applies to the age of the
persons depicted as well as to the nature of the materials, “limits
the scope of the [statute] because the desire for prosecutorial
efficiency dictates the vast majority of prosecutions . . . would
involve images of prepubescent children or persons who otherwise
42
Acheson, 195 F.3d at 651.
43
See 18 U.S.C. § 2252A(c).
17
clearly appear to be under the age of 18.”44 We also agree with the
First Circuit that the danger of persons being convicted under §
2252A of possessing sexually explicit material of adults who look
or dress in a youthful manner is “overstated” in light of
Congress’s determination that purveyors of child pornography
“usually cater to pedophiles, who by definition have a predilection
for pre-pubertal children.”45
We acknowledge that the prosecution of individuals on the
basis of sexually explicit depictions of youthful-looking adults is
theoretically possible; however, the Supreme Court has made clear
that “[e]ven where a statute at its margins infringes on protected
expression, facial invalidation is inappropriate if the remainder
of the statute . . . covers a whole range of easily identifiable
and constitutionally proscribable . . . conduct.”46 Keeping in mind
the Court’s caveat that a statute’s overbreadth must be
“substantial . . . judged in relation to the statute’s plainly
legitimate sweep[,]”47 we agree with the First Circuit that “[t]he
44
Acheson, 195 F.3d at 651-52 (internal quotation marks and
citation omitted).
45
Hilton, 167 F.3d at 73-74. In candor we must nevertheless
recognize that, as this is an affirmative defense which places
the burden of proving the models’ majority on defendants who are
virtually certain not to be able to track down producers and
actors to adduce evidence of age, the defense is likely illusory.
46
Osborne, 495 U.S. at 112 (internal quotation marks and
citation omitted; ellipses in original).
47
See Broadrick, 413 U.S. at 615.
18
existence of a few possibly impermissible applications of the
[statute] does not warrant its condemnation.”48 Instead, whatever
overbreadth may exist at the margins of § 2252A with respect to
sexually explicit images of youthful-looking adults is “more
appropriately cured through a more precise case-by-case evaluation
of the facts in a given case.”49
With respect to the troubling possibility of the statute’s
application to artistic expression otherwise fully protected under
the First Amendment,50 such as downloaded images of the famed erotic
paintings of Balthus51 or stills from a film version of Nabokov’s
Lolita, we first recall that we must construe the statute, if at
all possible, so as to avoid finding a constitutional violation.52
48
Hilton, 167 F.3d at 74.
49
Id.
50
Even though Fox does not claim that any of the materials
for receipt of which he was convicted constitute such expression,
he nevertheless has standing to challenge the statute on this
ground as the Supreme Court has “altered its traditional rules of
standing to permit —— in the First Amendment area —— attacks on
overly broad statutes with no requirement that the person making
the attack demonstrate that his own conduct could not be
regulated by a statute drawn with the requisite narrow
specificity.” See Broadrick, 413 U.S. at 612 (internal quotation
marks and citation omitted).
51
Balthus, whom Miro called the greatest realist painter of
his age, is known, among other things, for his erotically charged
paintings of young girls. At his first one-man show in Paris in
1934, Balthus caused a stir with “Guitar Lesson,” a painting of
an older woman fondling a half-naked young girl, with a discarded
guitar lying nearby.
52
Broadrick, 413 U.S. at 613.
19
Thus, we agree with the First Circuit’s reasoning that Congress
intended the “appears to be” language of the statute to target only
those images that are “‘virtually indistinguishable to unsuspecting
viewers from unretouched photographs of actual children[,]’”53
thereby placing “the vast majority of every day artistic expression
[such as drawings, cartoons, sculptures, and paintings], even . .
. speech involving sexual themes”54 outside § 2252A’s statutory
reach.55 Any imprecision that may remain at the margins after
employing this limiting construction —— say, whether the statute
would ban images akin to the work of renowned contemporary artist
Chuck Close, whose ultrarealistic paintings can be
indistinguishable from close-up photography —— is more
appropriately handled not by invalidating the statute but rather by
“‘case-by-case analysis of the fact situations to which its
53
Hilton, 167 F.3d at 72 (emphasis added) (quoting S. Rep.
No. 104-358, at 7).
54
Hilton, 167 F.3d at 72.
55
We note that even though the government can only ban adult
pornography when, “taken as a whole,” the material lacks “serious
literary, artistic, political or scientific value,” see Miller v.
California, 413 U.S. 15, 24 (1973) the Miller standard does not
apply to child pornography. See Ferber, 458 U.S. at 761. As the
Ferber Court explained, “a work which, taken on the whole,
contains serious literary, artistic, political, or scientific
value may nevertheless embody the hardest core of child
pornography.” See id. at 761. To the extent that § 2252A might
ban “depictions that do not threaten the harms” that Congress has
crafted the statute to address, see id. at 775 (O’Connor, J.,
concurring), we do not believe this potential overbreadth to be
sufficiently substantial to warrant invalidating the statute.
20
sanctions, assertedly, may not be applied.’”56
In sum, we cannot agree with Fox that § 2252A “criminalizes an
intolerable range of constitutionally protected conduct,”57
particularly when we judge the extent of that overbreadth, as we
must, in relation to the statute’s “plainly legitimate sweep.”58
We hold that § 2252A is not unconstitutionally overbroad.
3. Vagueness
Fox also contends that the statute is void for vagueness. The
Supreme Court has held that a statute is unconstitutionally vague
if it does not “define the criminal offense with sufficient
definiteness that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary or
discriminatory enforcement.”59 In other words, a statute is void
for vagueness if it does not put the average reasonable person on
notice of what conduct is prohibited.60
Fox nevertheless argues that § 2252A’s “appears to be”
language is “overly subjective” and thus creates “substantial
uncertainty” for viewers because it may be difficult to distinguish
between depictions of teenagers from those of young adults with
56
See Broadrick, 413 U.S. at 615-16.
57
See Osborne, 495 U.S. at 112.
58
See Broadrick, 413 U.S. at 615.
59
Kolender v. Lawson, 461 U.S. 352, 357 (1983).
60
See Acheson, 195 F.3d at 652.
21
even younger appearances.61 The Ninth Circuit accepted a similar
argument in Free Speech Coalition and held that the “appears to be”
and “conveys the impression” language of the statute is
unconstitutionally vague because both phrases are “highly
subjective.”62 The Ninth Circuit was concerned that “the vagueness
of the statute’s key phrases regarding computer images permits
enforcement in an arbitrary and discriminatory fashion.”63
The First, Fourth, and Eleventh Circuits have reached the
opposite conclusion. In Hilton, for example, the First Circuit
concluded that the standard for interpreting the key language of
the statute is not subjective, but objective: “A jury must decide,
based on the totality of the circumstances, whether a reasonable
unsuspecting viewer would consider the depiction to be of an actual
individual under the age of 18 engaged in sexual activity.”64 We
agree with the First Circuit’s reasoning that together the scienter
requirement of the statute and the affirmative defense available if
the subject of the image was an adult at the time the image was
61
Fox’s related contention that the term “lascivious” as
used in the statute is similarly “subjective” was foreclosed by
the Supreme Court in United States v. X-Citement Video, 513 U.S.
64, 78-79 (1994), which held that use of that term to define the
prohibited material is constitutionally permissible.
62
Free Speech Coalition, 198 F.3d at 1095.
63
Id.
64
Hilton, 167 F.3d at 75.
22
produced65 provide at least a modicum of additional safeguards
against improper enforcement.66
Likewise, the Eleventh Circuit in Acheson, noting that
“[s]exually explicit images falling close to the line separating
adult pornography and unprotected child pornography are outside the
most sensitive areas of speech vital to the free exposition of
ideas,”67 concluded that a reasonable person is on notice that
possessing images appearing to be children engaged in sexually
explicit conduct is illegal.68 As for the argument that it is
“impossible to tell whether an image ‘appears to be’ a minor,” we
agree with the Eleventh Circuit that “[t]he physical
characteristics of the person depicted . . . go a long way toward
determining whether the person appears to be a minor[;]” in
addition, computer file names such as “Falcon 10" that, in the
custom of the trade, reference the age of those depicted in the
images “may even give some indication of the actual ages of the
participants.”69 The Acheson court also noted that the safeguards
against improper enforcement provided by the statute, such as its
scienter requirement and affirmative defense, “create an incentive
65
See 18 U.S.C. § 2252A(a)(5)(B).
66
See Hilton, 167 F.3d at 75.
67
Acheson, 195 F.3d at 652.
68
Id.
69
Id. at 652-53.
23
for focusing prosecutorial energy on the heart of the child
pornography problem —— the pre-pubescent child pornography
market.”70
We are in accord with the line of analysis that emerges from
the foregoing reasoning of the First, Fourth, and Eleventh
Circuits, and conclude that, taken together, the statute’s scienter
requirement and affirmative defenses provide sufficient protection
against improper prosecution to defeat Fox’s vagueness challenge.
In this vein, we also agree that the “appears to be” language is
not so subjective as to fail to put reasonable persons on notice of
what it is that the statute prohibits. Accordingly, we reject
Fox’s vagueness challenge to the statute.
C. Sufficiency of the Evidence
Having determined that the statute under which Fox was
convicted passes constitutional muster, we must next assess his
attack on the sufficiency of the evidence adduced by the government
to convict him under that statute. Fox contends that the
government’s evidence is insufficient to (1) negate his “mistake of
fact” defense, (2) satisfy the statute’s scienter requirement, or
(3) establish that the images in question were “lascivious” within
the meaning of the statute.
1. Mistake of Fact
Fox argues that he is entitled to a “mistake of fact” defense
70
Id. at 653.
24
by declaring that he was merely investigating Internet child
pornography with a “good motive” —— to “deliver up these defilers
of children” to the proper authorities for well-deserved
punishment. Recognizing that, standing alone, good motive is no
defense,71 Fox contends that the government has failed to prove
beyond a reasonable doubt that he possessed the requisite scienter,
which he glosses as “guilty mind.” Fox, however, seriously
mischaracterizes the statute’s scienter element: The government
must prove that the defendant knowingly, i.e., voluntarily and
intentionally, received child pornography, not that he had some
degree of mens rea. Here, Fox himself admitted in his March 1999
statement to the FBI that he had “put his name on a list” to
receive child pornography and subsequently began to receive and
send child pornography, all quintessential voluntary and
intentional acts. As such, Fox’s insistence that the government
failed to prove that he knowingly received child pornography widely
misses the mark.
Furthermore, the government correctly observes that Fox’s
“mistake of fact” defense is more accurately characterized as a
“public authority” defense, which requires a defendant to show that
he was engaged by a government official to participate in covert
71
United States v. Chenault, 844 F.2d 1124, 1130 (5th Cir.
1988).
25
activity.72 Fox presented no such evidence to the jury in this
case, and so his claim that he is entitled to such a defense must
fail.73
2. Scienter
Alternatively, Fox argues that even if he is not entitled to
a “mistake of fact” or “public authority” defense, the evidence is
nevertheless insufficient to prove beyond a reasonable doubt that
he knew that the persons depicted in the images were younger than
18. This contention is baseless. As we have just noted, the jury
heard evidence that Fox himself admitted to an FBI agent to having
“put his name on a list” to receive child pornography. Fox cannot
be heard to declare, on one hand, that he was conducting his own
“investigation” into Internet child pornography and, on the other
hand, that he did not know that the images he received and
transmitted were of minors.
3. Lasciviousness
Finally, Fox objects that evidence presented to prove the
“lasciviousness” of the images is insufficient. To repeat, Fox was
convicted under 18 U.S.C. § 2252A, which subjects to criminal
penalties “any person who knowingly receives or distributes any
72
See United States v. Spires, 79 F.3d 464, 466 n.2 (5th
Cir. 1996).
73
Cf. United States v. Mathews, 209 F.3d 338 (4th Cir. 2000)
(rejecting award-winning journalist’s First-Amendment defense
that he traded in child pornography for a “proper purpose,” i.e.,
gathering information for an investigative report).
26
child pornography that has been mailed, or shipped or transported
in interstate or foreign commerce by any means, including by
computer[;]” and the term “child pornography,” in turn, is defined
as any visual depiction that “is, or appears to be, of a minor
engaging in sexually explicit conduct[.]”74 To carry its burden of
proving that the conduct depicted is “sexually explicit,” the
government may demonstrate, inter alia, that the conduct involves
the “lascivious exhibition of the genitals or pubic area of any
person.”75
In this circuit the six-factor test developed in United States
v. Dost76 is employed to determine whether an image is
“lascivious.”77 Under Dost, we ask: (1) is the image’s focal point
the child’s genitalia or pubic area, (2) is the setting depicted in
the image sexually suggestive, (3) is the child depicted in an age-
inappropriate pose or attire, (4) is the child partially clothed or
nude, (5) does the image suggest sexual coyness or a willingness to
engage in sexual activity, and (6) is the image intended or
designed to elicit a sexual response in the viewer. An image need
not produce affirmative answers to all of these questions to be
74
See 18 U.S.C. § 2256(8) (emphasis added).
75
See 18 U.S.C. § 2256(2)(E) (emphasis added).
76
636 F. Supp. 828, 832 (S.D. Cal. 1986), aff’d 812 F.2d
1239 (9th Cir. 1987).
77
See United States v. Rubio, 834 F.2d 442, 448 (5th Cir.
1987).
27
considered “lascivious.”78 As even Fox concedes that at least seven
of the 17 images shown to the jury possess “some” or “most” of the
Dost factors, it is enough to say that the jury could easily have
found at least one of the images to be “lascivious” within the
meaning of the statute; and one is all that is required to support
a verdict of guilty.
D. Admission of the Photographs
Fox proffers two related arguments regarding the admission of
the photographic evidence. First, he advances that the district
court abused its discretion in admitting “wholesale” the
photographs of 17 of the images taken from his computer files
without first requiring the government to make a preliminary
showing by expert testimony that each of the photographs it sought
to introduce depicts a minor or someone who appears to be a minor.
Second, Fox contends that under Rule 403 of the Federal Rules of
Evidence, the probative value of the photographs was substantially
outweighed by the danger of unfair prejudice, in light of which,
argues Fox, the photographs should not have been admitted.
1. Lack of Expert Testimony
Fox insists that the district court erred by admitting the
photographs into evidence without requiring expert testimony as to
the age of the persons depicted. In response, the government
reminds us that in United States v. Katz, we held that whether the
78
See Dost, 636 F. Supp. at 832.
28
age of one depicted in child pornography can be determined by a lay
jury without the assistance of expert testimony must be determined
on a case-by-case basis.79 Here, in addition to its own examination
of the images, the jury was provided with additional evidence in
the form of an FBI agent’s testimony about the common practice of
including indications of the age of the subjects in the file names.
In fact, two of the images bear Fox’s own words describing the
subject as “my 15-year-old niece.”
As the government reiterates, the jury did not need to find
that all 17 images presented at trial depict subjects under the age
of 18; the jurors only needed to conclude that at least one of
them, beyond a reasonable doubt, depicted a person who appeared to
be less than the age of 18.80 Inasmuch as even Fox concedes that
“[s]ome of the photos appear to be prepubescent children who are .
. . obviously less than 18,” his challenge to his conviction on
this basis fails. The district court did not abuse its discretion
in admitting the photographs without expert testimony as to the
subjects’ ages.
2. Unfair Prejudice
Fox contends in the alternative that even if the photographs
79
178 F.3d 368, 373 (5th Cir. 1999).
80
The government also points out that in two of the images,
the age of the models is immaterial because the images were
“advertised, promoted, presented, described, [and] distributed”
as those of minors, and thereby meet the statutory definition of
child pornography. See 18 U.S.C. § 2256(8)(D).
29
are held to be admissible without expert verification of age, their
admission unfairly prejudiced him in violation of Federal Rule of
Evidence 403.81 Fox argues that the effect on the jury of
introducing “irrelevant adult pornography” together with “relevant
child pornography” was so “inflammatory” that it “painted him as a
‘pervert.’” The government counters that the best evidence of
whether the images are, in fact, “child pornography” is the images
themselves, and that their admission, although certainly
“prejudicial” to the defendant, was not unfairly so and was
warranted by their relevance. Agreeing with this reasoning, we
cannot say that Fox was unfairly prejudiced by the admission of the
photographs. The district court did not abuse its discretion in
admitting them.
E. Ex Post Facto Violation
Fox complains that the district court determined his sentence
under a version of the applicable Sentencing Guideline that had
been amended after the offense was committed but prior to
sentencing. This, he argues, produced a sentence that violates the
ex post facto clause of the Constitution.82 Fox correctly states
that if the application of the version of the Guideline in effect
81
Rule 403 provides, "Although relevant, evidence may be
excluded if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste
of time, or needless presentation of cumulative evidence."
82
See U.S. Const. art. I, § 9, cl. 3.
30
on the sentencing date rather than the version that had been in
effect on the offense date results in a longer sentence or other
disadvantage to the offender, the ex post facto clause is
violated.83 More specifically, Fox states that in determining his
sentence the district court applied U.S.S.G. § 2G2.4, producing a
substantial increase in the base level of the offense, which in
turn resulted in a significantly longer term of incarceration. We
disagree.
Fox’s presentence investigation report makes clear that,
because his offense involved receipt (as opposed to possession) of
child pornography, his sentence was determined using § 2G2.2, not
§ 2G2.4. Although the base offense level of § 2G2.4 was increased
by an amendment adopted between Fox’s commission of the offense and
his sentencing, that section of the Guidelines has always cross-
referenced § 2G2.2, the offense level of which has not changed
since Fox committed the offense. Accordingly, Fox was not
sentenced in violation of the ex post facto clause.
F. Sentence Enhancement
Relying again on the absence of expert testimony about the
ages of the children in the photographs, Fox complains that there
is insufficient evidence to support the district court’s
enhancement of his sentence on the basis of his knowing receipt of
materials involving a prepubescent minor. The district court
83
See United States v. Suarez, 911 F.2d 1016, 1022 (1990).
31
responded to this objection at Fox’s sentencing hearing, stating
that “there are in evidence a number of those pictures, and it’s
quite obvious in reviewing those that several were under the age of
twelve, possibly the age of six or seven.”
The government again emphasizes —— correctly —— that under
U.S.S.G. § 2G2.2(b)(1), the presence of only one such image is
sufficient support for the enhancement. Furthermore, to satisfy
the Guideline’s knowledge requirement with respect to the age of
the persons depicted, the government need only prove that Fox
displayed reckless disregard for the ages of the subjects.84
Applying this standard, we have no difficulty concluding that the
district court’s determination that at least one of the images
received by Fox depicts a prepubescent minor is not clearly
erroneous. The district court properly enhanced Fox’s sentence on
that basis.
G. Refusal to Depart Downward
Fox advances that even though he declined to make any comments
concerning his involvement in the offense during his presentencing
interview with the probation officer, his “eloquent” address to the
district court at sentencing —— in which he admitted his actions
and “stood prepared to accept” his punishment —— renders clearly
erroneous the district court’s refusal to reduce his sentence for
acceptance of responsibility. Although the district court
84
See United States v. Kimbrough, 69 F.3d 723, 733 (5th Cir.
1995) (citation omitted).
32
acknowledged the eloquence of Fox’s statement, it nevertheless
concluded that “from the onset of this case the defendant has
failed to accept responsibility for his conduct. He has failed to
acknowledge any wrongdoing and has blamed the FBI and others for
his conviction.” In like manner, the government reasons that Fox’s
denial of the essential factual elements of the offense at trial,
together with his decision not to speak with the probation officer
about his involvement in the offense, firmly support the district
court’s ruling.
The sentencing court is best positioned to determine whether
a defendant has displayed the requisite degree of remorse,
contrition, and regret to merit a reduction in his sentence. We
are unwilling to substitute our remote point of view for the
district court’s proximate determination that Fox was not entitled
to a sentence reduction for acceptance of responsibility, based on
his denial of guilt at trial and his refusal to speak with the
probation officer before sentencing. Accordingly, we decline Fox’s
invitation to hold that the district court’s refusal to reduce his
sentence for acceptance of responsibility constitutes clear error.
III.
CONCLUSION
For the reasons explained above, Fox’s conviction and sentence
are
AFFIRMED.
33
34