NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0010n.06
Filed: January 7, 2008
No. 06-3802
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
) THE SOUTHERN DISTRICT OF
J. TIMOTHY HALTER, ) OHIO
)
Defendant-Appellant. )
Before: SILER, COOK, and GRIFFIN, Circuit Judges.
SILER, Circuit Judge. Defendant J. Timothy Halter was convicted on one count of
possession of sexually explicit visual depictions of minors in violation of 18 U.S.C. § 2252(a)(4)(B).
Halter appeals, arguing, inter alia, that the statute under which he was convicted violates his First
Amendment right to free speech, that the verdict was based on insufficient evidence, and that
testimony from government witnesses violated his Confrontation Clause rights. Because none of
Halter’s myriad arguments has any merit, we affirm.
BACKGROUND
Halter was president and part owner of Arrow Industrial Supply Inc., a business operating
in Westerville, Ohio. In 1999, police executed a search warrant for Halter’s office and seized a
computer and related materials. Officers found 50 images and two movies containing sexual
depictions of minors in the seized materials. Witnesses identified all of the children depicted in the
50 images and determined that each original photograph was taken outside of Ohio. A jury
convicted Halter of one count of possession of one or more sexually explicit visual depictions of
minors in violation of 18 U.S.C. § 2252(a)(4)(B).
ANALYSIS
Constitutional Issues
Halter claims that the district court should have dismissed the indictment against him because
18 U.S.C. § 2252 violates his First Amendment right to free speech. He argues that 18 U.S.C. §
2252 relies on the term “child pornography,” as defined in 18 U.S.C. § 2256(8), and that the
application of this term was ruled unconstitutional in Ashcroft v. Free Speech Coalition, 535 U.S.
234 (2002). The use of the term “child pornography” that he challenges appears in 18 U.S.C. §
2252A. Therefore, his argument based on Free Speech Coalition fails because he was charged with
and convicted of possessing explicit images of real children under § 2252(a)(4)(B), not simulated
children or persons falsely represented to be children under § 2252A.
Halter next claims that the term “knowingly” in § 2252(a)(4)(B) is unconstitutionally vague
and overbroad. His arguments fail again. First, a statute is void for vagueness if it does not give
adequate notice to people of ordinary intelligence concerning the conduct it proscribes, or if it invites
arbitrary and discriminatory enforcement. Kolender v. Lawson, 461 U.S. 352, 357 (1983); United
States v. Krumei, 258 F.3d 535, 537 (6th Cir. 2001). The meaning of the term “knowingly” is well-
settled. Bryan v. United States, 524 U.S. 184, 193 (1998) (stating “unless the text of the statute
dictates a different result, the term ‘knowingly’ merely requires proof of knowledge of the facts that
constitute the offense”). Section 2252(a)(4)(B) provides adequate notice to people of ordinary
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intelligence about the conduct it proscribes, namely, knowingly possessing sexually explicit images
of actual children.
Second, the overbreadth doctrine prohibits the government from proscribing a “substantial”
amount of constitutionally protected speech judged in relation to the statute’s plainly legitimate
sweep. Virginia v. Hicks, 539 U.S. 113, 118-119 (2003). Halter’s argument that § 2252(a)(4)(B)
is overbroad because it chills persons who seek to exercise their right under Free Speech Coalition
to view simulated child pornography has no merit. A statute is not invalid simply because some
impermissible applications are conceivable. New York v. Ferber, 458 U.S. 747, 772 (1982)
(concluding that a New York statute prohibiting possession of child pornography was not
overbroad). In Ferber, the Supreme Court upheld against an overbreadth challenge a statute
criminalizing possession of child pornography even though it may have reached some protected
expression, such as medical textbooks and artistic works. Id. at 773. The Court upheld the statute
because it “seriously doubt[ed] . . . that these arguably impermissible applications of the statute
amount to more than a tiny fraction of the materials within the statute’s reach.” Id.
Here, analogizing to Ferber, any arguably impermissible applications of the statute to citizens
who view simulated child pornography amount to no more than a tiny fraction of the materials within
the statute’s reach. United States v. Adams, 343 F.3d 1024, 1034-35 (9th Cir. 2003) (holding that
Ferber foreclosed the defendant’s argument that the definition of sexually explicit conduct used by
§ 2252(a)(4)(B) is overbroad because it could reach “simulated” sexual conduct). Furthermore, in
Free Speech Coalition, the Supreme Court expressed doubt that images of actual children and
simulated children were indistinguishable.
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If virtual images were identical to illegal child pornography, the illegal images
would be driven from the market by the indistinguishable substitutes. Few
pornographers would risk prosecution by abusing real children if fictional,
computerized images would suffice.
535 U.S. at 254. Section 2252(a)(4)(B) is not unconstitutionally vague or overbroad.
Sufficiency of the Evidence
Halter next claims that there is insufficient evidence to support his conviction. When
reviewing a sufficiency of the evidence claim, we determine whether “after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979)
(emphasis in original).
Drawing all inferences in favor of the prosecution, there is sufficient evidence to support
Halter’s conviction. First, a rational jury could have found beyond a reasonable doubt that Halter
knowingly possessed the images. The images were found on a computer in Halter’s office.
Information recovered from the computer showed that he was sending and receiving emails from his
work account at the same time he was participating in an internet chat room devoted to exchanging
sexually explicit images of children.
Second, a rational jury could have found beyond a reasonable doubt that the images depicted
real children and were transported in interstate or foreign commerce. A jury can distinguish sexually
explicit images of actual children from images of simulated children. United States v. Farrelly, 389
F.3d 649, 655 (6th Cir. 2004), superseded on other grounds, Sentencing Commission deletion of
USSG § 2G2.4, as stated in United States v. Williams, 411 F.3d 675, 678 n.1 (6th Cir. 2005).
Witnesses identified all of the victims as real children based on their investigations into the
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production of the originals. The birth certificates of the victims proved that they were under 18 years
of age when the images were taken. All of the images listed in the indictment were originally taken
outside of Ohio and traveled via the internet to reach Halter.
Finally, a rational jury could have found beyond a reasonable doubt that Halter knew the
images involved the use of an actual minor engaging in sexually explicit conduct. The images
depicted very young children. He visited internet chat rooms with names clearly indicating that the
purpose of the chat rooms was to exchange sexually explicit images of real children. His internet
activities never revealed an interest in images of simulated children or adults posing as children.
Evidentiary Issues
Halter argues that the government’s authentication testimony violated the hearsay rule.
Because he did not object on hearsay grounds at trial, we review the district court’s decision to admit
the alleged hearsay testimony for plain error. Fed. R. Crim. P. 52(b). Halter claims in very general
terms that testimony by government witnesses relating to people, objects, and locations depicted in
the original images constituted hearsay because those witnesses were not present when the originals
were taken. This argument is meritless. Hearsay is an out-of-court statement offered for the truth
of the matter asserted. Fed. R. Evid. 801(c). The government witnesses testified in court based on
their personal knowledge of what was depicted in the images. Most of the witnesses met the victims
while conducting their respective investigations. They personally observed the people, objects, and
locations featured in the images. Therefore, the district court did not commit plain error by admitting
the testimony.
Halter next argues that testimony by the four identification witnesses at trial violated his
rights under the Confrontation Clause. Testimonial out-of-court statements by a witness are barred
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under the Confrontation Clause, unless the witness is unavailable and the defendant had a prior
opportunity to cross-examine the witness. Crawford v. Washington, 541 U.S. 36, 53-54 (2004). He
argues that the identification witnesses offered a variety of Crawford-violating statements, such as
“the subject confessed,” when testifying about their investigations regarding the production of the
originals. We review Confrontation Clause issues de novo. United States v. Robinson, 389 F.3d
582, 592 (6th Cir. 2004).
Halter’s counsel elicited most of the alleged Crawford-violating statements about which he
now complains when conducting cross-examination of government witnesses. Halter cannot
complain that Crawford bars statements that his own counsel elicited. Halter points to one
Crawford-violating statement that the United States elicited. When asked how he knew that the
image depicted an actual victim, a law enforcement officer testified that “the subject confessed.”
However, Confrontation Clause violations are subject to harmless error review. United States v.
Powers, 500 F.3d 500, 505-06 (6th Cir. 2007). A Confrontation Clause error is harmless only if the
government presented other evidence sufficient to show guilt beyond a reasonable doubt. Id. at 510.
Even without this Crawford-violating statement, the United States proved beyond a
reasonable doubt that the victim was a real person under the age of 18. The law enforcement officer
interviewed the victim twice, and he was able to identify her as a real person by her facial features.
The victim’s birth certificate showed that she was under the age of 18 when the image was taken,
and she was still under the age of 18 when Halter was arrested in 1999. Therefore, the United States
proved beyond a reasonable doubt that the victim depicted in the image was a real person under the
age of 18 without the Crawford-violating statement.
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Halter argues that the district court erred by admitting evidence of uncharged conduct
pursuant to Rule 404(b), such as emails expressing his interest in taking nude photographs of minors
and chat logs relating to exchanging sexually explicit images of children. However, he failed to
develop this argument through meaningful legal analysis or citation to the record.1 This failure
means he has waived the evidentiary issues on appeal. Fed. R. App. P. 28(a)(9)(A); Spirko v.
Mitchell, 368 F.3d 603, 612 (6th Cir. 2004).
Interstate Commerce and Jurisdiction
Halter argues that the district court erred by refusing to grant his motion to dismiss for lack
of jurisdiction. His motion asserted that the district court lacked jurisdiction over this case because
his activities constituted mere intrastate possession of images, not interstate commerce. His
argument has no merit. Under 18 U.S.C. § 2252(a)(4)(B), federal jurisdiction is established by
showing that the image traveled in interstate or foreign commerce or that it was produced by
materials that have traveled in interstate commerce. The statute is facially constitutional. United
States v. Corp, 236 F.3d 325, 332 (6th Cir. 2001).
The statute is constitutional as applied to Halter. In Corp, the 23-year-old defendant took
photos of his 17-year-old girlfriend engaging in consensual sexual activity and never transmitted the
images. Id. at 326. We sustained an as-applied challenge because the production of the
photographic paper in Germany did not substantially affect interstate or foreign commerce. Id. at
332. Here, the United States instead relied exclusively on the images traveled as a jurisdictional
basis. The jury instructions included as an element of the crime “that the visual depiction had been
1
His brief does little more than list the evidence that the district court admitted under Rule
404(b) and state that it should not have been admitted.
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mailed, shipped, or transported in interstate or foreign commerce. . . .” Testimony revealed that the
images came from other states and countries. Because all of the images traveled in interstate
commerce to reach Halter, we deny his as-applied challenge.
Jury Instructions
Halter argues that the district court improperly instructed the jury on interstate commerce and
improperly refused his proposed jury instruction. We review a district court’s choice of jury
instructions for abuse of discretion. United States v. Beaty, 245 F.3d 617, 621 (6th Cir.), cert.
denied, 534 U.S. 895 (2001). A trial court abuses its discretion only if the charge fails accurately
to reflect the law. Id. The district court judge instructed the jury that it could convict only if it found
beyond a reasonable doubt
that the visual depiction had been mailed, shipped, or transported in interstate
or foreign commerce, by any means including computer.
The jury instructions clearly stated that the “thing” that must have traveled in interstate
commerce is the visual depiction. This instruction is clear and it accurately reflects the law. See 18
U.S.C. § 2252(a)(4)(B) (stating “video tapes, or other matter which contain any visual depiction”
must be shipped in interstate commerce). The district court did not abuse its discretion by refusing
Halter’s proposed jury instructions, which would have misled the jury by precluding it from
considering circumstantial evidence on the interstate commerce element.
Other Arguments
Halter argues that the lack of specificity in the indictment deprived him of his due process
rights because it did not state whether the images he possessed met the definition of “child
pornography” under 18 U.S.C. § 2256(8)(A) or § 2256(8)(C). He then proceeds to attack §
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2256(8)(C) as unconstitutional, primarily by rehashing his unsuccessful First Amendment argument
and relying on Free Speech Coalition. His argument fails again because the statute under which he
was convicted, 18 U.S.C. § 2252(a)(4)(B), is constitutional and he was convicted of possessing
images of actual children, not simulated children or persons falsely represented to be children.
Halter argues that the district court erred by denying his motion to dismiss the indictment,
which the district court treated as a Rule 29 motion. The jury returned the guilty verdict on
November 18, 2005, and he filed the motion on December 29, 2005. Absent an extension from the
court, a Rule 29 motion must be filed within seven days of a guilty verdict or plea. Fed. R. Crim.
P. 29(c)(1). Therefore, the district court properly denied his motion as untimely.
Finally, Halter argues that cumulative errors deprived him of his right to due process.
However, because he cannot establish any actual error, other than harmless Crawford error, his
cumulative error argument fails.
AFFIRMED.
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