United States v. Angle, Ralph W.

In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3349

United States of America,

Plaintiff-Appellee,

v.

Ralph Wayne Angle,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:98 CR 37 RL--Rudy Lozano, Judge.

Argued May 11, 2000--Decided December 6, 2000

Before Coffey, Evans, and Williams, Circuit Judges.

Williams, Circuit Judge. Following a four-day
bench trial, Defendant Ralph Angle was convicted
of several crimes relating to his interest in
child pornography and his pursuit of a minor for
sexual gratification. Through a combination of
sentencing enhancements and an upward departure
from the applicable guideline range, the district
court sentenced Angle to just over 27 years’
imprisonment. Angle challenges his convictions
and sentence on a variety of grounds. For the
reasons stated below, we affirm Angle’s
convictions but remand for resentencing.

I

After investigating his children’s use of the
Internet, Ted Gross, a Colorado resident,
contacted the Federal Bureau of Investigation
(FBI) and reported several computer screen names
of individuals using the Internet to engage in
sexually-explicit conversations with children. At
the time Gross contacted the FBI, in August 1997,
the agency was conducting its own nationwide
investigation against individuals who used the
Internet to lure children into sexual
relationships. As part of its investigation, the
FBI traced one of the reported computer screen
names, "Butch 8003," to Angle, who resided in
Indiana. The FBI then decided to enhance the
computer identity, "Jeff/Wolf One," belonging to
the Gross children./1 During on-line
conversations, an undercover agent indicated that
Jeff/Wolf One was from a troubled home situation
and that he had been forced to relocate with his
father. Angle, using his computer screen name
Butch 8003, continued to correspond with
Jeff/Wolf One. Besides having a number of
sexually-explicit conversations with Jeff/Wolf
One, Angle repeatedly told Jeff/Wolf One that he
loved him and that he was willing to visit
Jeff/Wolf One in Colorado. Angle also asked
Jeff/Wolf One for his telephone number and
offered to send Jeff/Wolf One a birthday gift or
money if he would provide Angle with his address.

On November 6, 1997, Angle called a telephone
number provided by the FBI and spoke to an
undercover agent posing as Jeff/Wolf One. During
the telephone conversation, Angle told Jeff/Wolf
One that he wanted to buy Jeff/Wolf One a camera
so that Jeff/Wolf One could take pictures of
himself to send to Angle. Angle also told
Jeff/Wolf One that he was willing to visit
Colorado to take Jeff/Wolf One shopping. In
addition, Angle made several attempts to obtain
Jeff/Wolf One’s address by telling Jeff/Wolf One
that he wanted to send him a birthday gift; Angle
believed that Jeff/Wolf One had recently
celebrated his fourteenth birthday.

Around this time, Angle, in addition to
expressing interest in Jeff/Wolf One, desired to
supplement his collection of child pornography.
On November 7, 1997, federal government
investigators sent electronic mail ("e-mail")
messages to Angle and other customers of Jake’s
Photo Service and/or Metro Comp Services, a child
pornography distributor based in Denver,
Colorado,/2 advising them that the business had
resumed operations and was willing to send
interested customers an updated video list./3
Responding to Angle’s request, government
investigators sent via e-mail an updated video
list including graphic descriptions of the sexual
activity depicted in each video, as well as the
age and sex of the children. In December 1997,
Angle sent an e-mail message to Jake’s Photo
Service indicating that he wanted to purchase
five videotapes and that his order was
forthcoming.

On January 7, 1998, Angle mailed a money order
payable to Jake’s Photo Service in the amount of
$161. Three days later, he sent an e-mail message
to Jake’s Photo Service confirming that the money
order was payment for five videotapes, which he
identified by title; all the titles were
advertised as depicting children under the age of
17 engaging in graphic sexual activity. In the
confirmatory e-mail, Angle requested that his
order not be shipped until January 23, 1998,
because he planned to be in Mexico for eight days
to "play with the boys." In a follow-up e-mail
sent to Jake’s Photo Service on January 14, 1998,
Angle reiterated that he planned to visit Mexico
and boasted about "[h]av[ing] boys lined up . .
. and waiting for [his] arrival."

On January 26, 1998, as he attempted to
re-enter the United States from Mexico, the
United States Customs Service stopped Angle and
searched his luggage. The Customs agents found a
video camcorder and three undeclared videotape
cassettes in Angle’s luggage. Angle allowed the
Customs agents to view the videotape cassettes,
at least one of which appeared to contain images
of child pornography. The next day, Angle sent an
e-mail message to Jake’s Photo Service, stating
"do not ship that order. More latter [sic]." A
few days later, on February 3, 1998, federal and
local law enforcement officers executed a search
warrant at Angle’s residence seeking child
pornography in various forms. The officers found
a child pornography videotape titled "Jap
Boys/Mexican Boys," hidden in the basement
ceiling, which depicted children between the ages
of 10 and 15. The officers also found a large
quantity of computer related items such as
diskettes, zip disks, and a computer monitor.

On February 26, 1998, Angle was arrested. The
grand jury later returned a superseding
indictment charging Angle with attempted receipt
of child pornography, in violation of 18 U.S.C.
sec. 2252(a)(2) (Count I),/4 possession of child
pornography, in violation of 18 U.S.C. sec.
2252(a)(4)(B) (Count II),/5 and attempted
solicitation of a minor, via the Internet and
telephone, to engage in sexually prohibited
activity, in violation of 18 U.S.C. sec. 2422(b)
(Count III)./6 While initially pleading not
guilty to the charges, Angle later filed a motion
to enter into a plea bargain, which he
subsequently withdrew. Angle then brought a
motion to suppress evidence obtained from the
search of his residence, which the district court
denied. The court also made certain evidentiary
rulings in favor of the government relating to
the admissibility of Angle’s prior convictions
and his uncharged possession of child pornography
on January 26, 1998. The case then proceeded to
trial.

In support of its case on Counts I and II, the
government offered evidence that Angle had
ordered child pornography videotapes from Jake’s
Photo Service. The government also introduced
into evidence the videotape cassette, computer
diskettes, and zip disks confiscated from Angle’s
residence. While the videotape cassette obtained
during the search undeniably contained child
pornography, the government called Thomas
McDonnell, an information technology specialist
with the United States Postal Inspection Service,
to testify about pornography that had been erased
or deleted from the confiscated computer
diskettes and zip disks.

McDonnell testified that since the confiscated
diskettes and zip disks had not been reformatted,
the deleted pornography files contained on them
were still recoverable. McDonnell explained that
when information is deleted from a diskette (or
zip disk) the computer operating system does not
actually erase the information until it is
overwritten by new information. McDonnell stated
that deleted information can often be recovered
by using a computer utilities program, such as
Norton Utilities, which is commonly available at
computer software stores. Using the Norton
Utilities program, McDonnell demonstrated how the
deleted pornography files were capable of being
recovered on the confiscated diskettes.

The government introduced into evidence at least
fourteen separate diskettes (each diskette
holding multiple pornographic images) that were
found to contain recoverable child pornography
files. The government also introduced hard copy
images from the computer files recorded on each
diskette. The government further introduced into
evidence a report prepared by McDonnell which
identified, among other things, computer files
containing visual depictions of minor children
engaging in graphic sexual behavior recovered on
the confiscated diskettes./7 Neither the
videotape cassette nor the computer diskettes
confiscated from Angle’s residence were
manufactured in the State of Indiana, and the zip
disks were assembled in Taiwan.

Finally, Dr. Phillip Merk, a pediatrician,
reviewed the videotape cassette, computer
diskettes, and zip disks confiscated from Angle’s
residence and noted that minor children were
depicted on all those items.

With respect to Count III,/8 the government
introduced into evidence records of various
conversations Angle had with Jeff/Wolf One (i.e.,
Richard M. Potocek, the undercover FBI agent
posing as Jeff/Wolf One) over the Internet and
telephone. Angle had a number of
sexually-explicit conversations with Jeff/Wolf
One. In light of those conversations, the
government argued that Angle had attempted to
cultivate a sexual relationship with Jeff/Wolf
One (e.g., by expressing affection for Jeff/Wolf
One and enticing him with gifts and money). The
government also called Potocek to testify about
his experience in investigating child sexual
predators and to explain his role in the
investigation against Angle. Potocek testified
that child sexual predators typically target
children who are lonely and disconnected from a
normal social life. He stated that it was not
uncommon for a predator to obtain a child’s
address and simply appear at the address without
warning. Potocek testified that, in his view,
Angle was a serious threat to children.

Angle testified in his own defense at trial. He
admitted that following his return from Mexico in
late January 1998, he took various items (e.g.,
videotape cassettes and zip disks) containing
child pornography to friends for safekeeping.
Angle admitted that the confiscated diskettes and
zip disks once contained child pornography, but
that he had deleted the pornography files months
before the search. He testified that he had no
knowledge about how to recover the deleted files
on the confiscated diskettes and zip disks. Angle
further stated that he never had any intention of
traveling to Colorado to meet Jeff/Wolf One and
that his conversations with Jeff/Wolf One were
merely "fantasy." On cross-examination, Angle
admitted that he had prior convictions for child
molestation and sodomy.

After weighing the evidence, the district court
found Angle guilty of all charges brought in the
superseding indictment. The court sentenced Angle
to concurrent prison terms of 325 months on Count
I and 120 months on Counts II and III, followed
by a five-year term of supervised release on
Count I which was to run concurrent to a three-
year term of supervised release on Counts II and
III of the superseding indictment. As a special
condition of his supervised release, the court
imposed a sex offender registration requirement.
The court also imposed $5,000 in fines.

In making its sentencing determination, the
district court applied a variety of enhancements
to Angle’s base offense level under the
sentencing guidelines. The court applied a cross-
reference to U.S.S.G. sec. 2A3.1, the sexual
abuse guideline, resulting in a base offense
level of twenty-seven for Count III, see U.S.S.G.
sec. 2G1.1(c)(2)./9 Because the victim was under
sixteen years of age, the court added a two-level
enhancement in offense level for Count III,
pursuant to U.S.S.G. sec. 2A3.1(b)(2)(B). The
court also departed upward from the applicable
guideline range of 151 to 188 months pursuant to
U.S.S.G. sec. 4A1.3, because Angle’s criminal
history category did not accurately reflect the
seriousness of his past criminal conduct or the
likelihood that he would commit other crimes. As
a result, the court sentenced Angle to 325
months’ imprisonment.

On appeal, Angle argues that the district court
erred in denying his suppression motion and his
motion for a judgment of acquittal on Count II
(possession of child pornography). With respect
to Count II, Angle argues that Congress exceeded
its Commerce Clause power in enacting 18 U.S.C.
sec. 2252(a)(4)(B), the statute he was convicted
of violating. He also contends that the
government failed to satisfy the interstate
commerce (or jurisdictional) element of sec.
2252(a)(4)(B) and argues that there was
insufficient evidence upon which to convict him
under the statute. Furthermore, Angle asserts
that the district court erred in admitting
evidence of his prior sex crime convictions, as
well as evidence that he possessed child
pornography when he returned from Mexico on
January 26, 1998.

Regarding sentencing, Angle contends that the
district court erred in upwardly departing from
the applicable guideline range pursuant to
U.S.S.G. sec. 4A1.3. With respect to his base
offense level for Count III, Angle argues that
the district court erred in applying a cross-
reference to U.S.S.G. sec. 2A3.1, the sexual
abuse guideline. Angle also challenges the
court’s two-level enhancement in offense level
for the underage victim, pursuant to U.S.S.G.
sec. 2A3.1(b)(2)(B). Finally, Angle contends that
the district court erred in requiring him to
register as a sex offender as a special condition
of supervised release.

II
A. Motion to Suppress

Angle asserts that the district court erred in
denying his motion to suppress evidence obtained
as a result of the search of his residence. In
support of his challenge, Angle maintains that
the government’s search was not supported by
probable cause. The district court denied the
suppression motion as untimely and alternatively
ruled that it would have denied the motion on its
merits because the affidavit in support of the
search warrant described circumstances sufficient
to create a reasonable belief that contraband or
evidence of a crime would be found in Angle’s
residence at the time of the search.

1. Timeliness of Suppression Motion

The district court set June 12, 1998 as the
deadline for the submission of pretrial motions,
but Angle did not move to suppress the motion
until September 14, 1998, just one day before the
commencement of trial./10 In proffering a
reason for the tardy motion, Angle’s counsel
explained that because the parties were in plea
negotiations and a guilty plea would have
rendered a suppression motion moot, he waited to
present the motion. The record indicates that
Angle filed a motion to enter a guilty plea on
September 9, 1998, and two days later, withdrew
that motion. He then orally made the motion to
suppress.

Because a district court has discretion when
considering an untimely motion, we may disturb
the court’s ruling only for clear error. See
United States v. Hamm, 786 F.2d 804, 806 (7th
Cir. 1986). Under Fed. R. Crim. P. 12(f),
"[f]ailure by a party to raise defenses . . . at
the time set by the court . . . shall constitute
waiver thereof, but the court for cause shown may
grant relief from the waiver." While Angle
acknowledges the waiver requirement of Rule
12(f), he maintains that he had a legitimate
explanation for the untimely motion. We disagree.
Here, as indicated by counsel’s statements, Angle
made a calculated decision not to file the
suppression motion by the court-imposed deadline.
Although it would have been wiser to file the
suppression motion in the event the guilty plea
was not entered, Angle chose not to comply with
the motion cut-off date. That decision
constitutes a clear waiver. Accordingly, the
district court did not abuse its discretion in
denying Angle’s suppression motion for
untimeliness.

2. Merits of Suppression Motion

The district court alternatively ruled that the
suppression motion would fail on the merits
because the affidavit in support of the search
warrant sufficiently demonstrated probable cause
for the search. We review a district court’s
factual findings in a ruling on a motion to
suppress evidence for clear error, and the
court’s legal determinations de novo. See United
States v. Hall, 142 F.3d 988, 993 (7th Cir.
1998).

Angle argues that the search warrant affidavit
failed to establish probable cause for the search
of his residence. In the affidavit, Inspector
Sadowitz averred, among other things, that Angle
had ordered (and paid for) five child pornography
videotapes on January 10, 1998. Inspector
Sadowitz further stated that Angle aborted that
order only after he was caught in possession of
a suspected child pornography videotape on
January 26, 1998. Inspector Sadowitz explained
that he was advised by a Customs agent that when
Angle re-entered the country from Mexico, he had
possessed three videotape cassettes, one of which
contained child pornography. Inspector Sadowitz
also indicated (1) that Angle corresponded
regularly via e-mail with a child pornography
distributor (Jake’s Photo Service); (2) that
Angle wrote in one of those e-mail
correspondences that he was "updating [his]
inventory" and that he had "more German titles,
more action boys, game boys, explosion boys &
boys collection"; and (3) that Angle had two
prior convictions for sex crimes involving minor
boys. After providing a detailed account of his
training and experience, Inspector Sadowitz
stated, among other things, that individuals who
use children as sexual objects often collect
child pornography and rarely, if ever, dispose of
it.

Angle contends that none of Inspector Sadowitz’s
averments, whether considered separately or
together, establish probable cause to believe
child pornography itself or other evidence of
child pornography crimes would be found at his
residence. According to Angle, Inspector
Sadowitz’s affidavit is deficient because the
child pornography videotapes he ordered were
never delivered and the e-mail message regarding
his videotape inventory was "ambiguous."

The district court found that the search
warrant was supported by probable cause,
reasoning that Inspector Sadowitz’s affidavit
described circumstances sufficient to warrant a
person of reasonable prudence to believe that
contraband or evidence of a crime would be found
in Angle’s residence. We agree. As this court
recently stated:

Probable cause . . . does not require evidence
sufficient to support a conviction, nor even
evidence demonstrating that it is more likely
than not that the suspect committed a crime. So
long as the totality of the circumstances, viewed
in a common sense manner, reveals a probability
or substantial chance of criminal activity on the
suspect’s part, probable cause exists.
United States v. Sawyer, 224 F.3d 675, 679 (7th
Cir. 2000) (citations omitted).

Here, Inspector Sadowitz’s averments, taken
together, establish more than "a probability or
substantial chance" that a search of Angle’s
residence would reveal child pornography
contraband or other evidence of child pornography
crimes. Indeed, the search occurred within days
of his return to the United States with suspected
child pornography material and his request to
delay shipment of the child pornography
videotapes he ordered from his Internet supplier
(Jake’s Photo Service). Thus, we find Angle’s
challenge unpersuasive.

B. Commerce Clause Challenge

Angle claims that 18 U.S.C. sec. 2252(a)(4)(B)
is an unconstitutional statute, enacted in
violation of the Commerce Clause./11
Specifically, Angle contends that Congress
exceeded its authority under the Commerce Clause
by making the intrastate possession of child
pornography a federal crime. The Supreme Court’s
decision in United States v. Lopez, 514 U.S. 549
(1995), provides the framework for analyzing his
Commerce Clause challenge.

In Lopez, the Supreme Court struck down the
Gun-Free School Zones Act (GFSZA), 18 U.S.C. sec.
922(q), which made it a federal crime for any
individual to knowingly possess a firearm near a
school zone, on the grounds that regulating such
activity exceeded Congress’s Commerce Clause
authority. The Lopez Court held that the Commerce
Clause permits Congress to regulate: (1) the
channels of interstate commerce; (2) the
instrumentalities of interstate commerce, or
persons or things in interstate commerce; and (3)
activities that substantially affect interstate
commerce. Id. at 558-59. Finding the first two
categories inapt, the Court concluded that the
GFSZA could be upheld, if at all, only if it fell
into the third category of activities. The Court
invalidated the GFSZA as a category three
regulation because (1) it was a criminal statute
that had "nothing to do with [interstate]
’commerce’ or any kind of economic enterprise";
(2) it contained "no jurisdictional element which
would ensure, through case-by-case inquiry, that
the firearm possession in question affect[ed]
interstate commerce"; and (3) Congress had
offered no legislative findings establishing a
nexus between interstate commerce and the
possession of a gun in a school zone. Id. at
559-62.

Angle contends that sec. 2252(a)(4)(B), like the
GFSZA, can be upheld, if at all, only as a
category three regulation. He acknowledges that
sec. 2252(a)(4)(B), unlike the GFSZA, has an
explicit jurisdictional element requiring the
transport in interstate or foreign commerce of
the visual depictions or the materials used to
produce them. But he argues that the
jurisdictional element or "hook" is insufficient
by itself to render sec. 2252(a)(4)(B)
constitutional. According to Angle, the
jurisdictional element does not automatically
ensure the constitutionality of sec.
2252(a)(4)(B) because it fails to "limit" the
statute’s intrastate application to activity that
substantially affects interstate commerce. To
determine if sec. 2252(a)(4)(B) passes
constitutional muster, Angle urges us (on the
authority of Lopez) to examine whether the
behavior regulated (intrastate possession of
child pornography) "arises out of or [is]
connected with economic activity, which viewed in
the aggregate, substantially affects interstate
commerce" (Lopez, 514 U.S. at 561). He claims
that since simple possession of child pornography
does not involve an economic activity, sec.
2252(a)(4)(B) cannot satisfy the substantial
effects test.

The government defends sec. 2252(a)(4)(B) by
arguing that the statute’s jurisdictional element
"covers only activity that has a substantial
effect on interstate commerce" in that the
pornography itself or the materials from which
the pornography has been produced must have
traveled in interstate commerce. The First and
Eighth Circuits both found this argument
persuasive and upheld the constitutionality of
sec. 2252(a)(4)(B) as a category three regulation
under the Commerce Clause. See United States v.
Bausch, 140 F.3d 739 (8th Cir. 1998), cert.
denied, 525 U.S. 1072 (1999); United States v.
Robinson, 137 F.3d 652 (1st Cir. 1998). Those two
circuits determined that, unlike the GFSZA at
issue in Lopez, sec. 2252(a)(4)(B) has a
jurisdictional element which ensures, through a
case-by-case inquiry, that the pornography
possession in question affects interstate
commerce. See Bausch, 140 F.3d at 741; Robinson,
137 F.3d at 656. Moreover, as an alternative
basis for upholding the statute, the First
Circuit in Robinson, supra, found that sec.
2252(a)(4)(B) was a legitimate means by which
Congress can control the "nationwide demand" for
pornography materials. 137 F.3d at 656.

The Third Circuit, although ultimately holding
that sec. 2252(a)(4)(B) was constitutional,
disagreed with the outcome reached by the First
and Eighth Circuits regarding sec.
2252(a)(4)(B)’s jurisdictional element. In United
States v. Rodia, 194 F.3d 465, 473 (3rd Cir.
1999), cert. denied, ___ U.S. ___, 120 S.Ct. 2008
(2000), the Third Circuit found that "the
[statute’s] jurisdictional element--the
requirement that precursor materials like film or
cameras moved in interstate commerce--is only
tenuously related to the ultimate activity
regulated: intrastate possession of child
pornography." The Rodia court reasoned that:

A jurisdictional element is only sufficient to
ensure a statute’s constitutionality when the
element either limits the regulation to
interstate activity or ensures that the
intrastate activity to be regulated falls within
one of the three categories of congressional
power.

As a practical matter, the limiting
jurisdictional factor is almost useless here,
since all but the most self-sufficient child
pornographers will rely on film, cameras, or
chemicals that traveled in interstate commerce
and will therefore fall within the sweep of the
statute.

Id. (citations omitted). Thus, the court declined
to uphold sec. 2252(a)(4)(B) on the grounds that
it contains a jurisdictional element. Instead,
the court upheld the statute as a category three
regulation by finding a sufficient nexus between
interstate commerce and the intrastate activity
regulated by sec. 2252(a)(4)(B). Rodia, 194 F.3d
at 473-81.

While we have our doubts whether sec.
2252(a)(4)(B)’s jurisdictional element
(particularly with respect to precursor
materials) guarantees that the activity regulated
(intrastate possession of child pornography)
substantially affects interstate commerce and are
inclined to agree with the Third Circuit’s
reasoning, we decline to reach this question
because we believe the statute passes
constitutional muster as a category three
regulation via a market theory (as discussed
below)./12

In analyzing the constitutionality of sec.
2252(a)(4)(B), our task is to determine whether
Congress could have had a rational basis for
believing that the intrastate possession of child
pornography has a substantial effect on
interstate commerce; and, further, that the
regulatory means chosen were "reasonably adapted
to the end permitted by the Constitution." See
Hodel v. Virginia Surface Min. & Reclamation
Ass’n, Inc., 452 U.S. 264, 276 (1981); see also
United States v. Kenney, 91 F.3d 884, 886 (7th
Cir. 1996).

Angle’s contention that intrastate possession of
child pornography has little or no bearing on
interstate commerce ignores the interstate demand
for child pornography which Congress took into
consideration in enacting the statutory scheme
under sec. 2252. For instance, Congress found
that "’child pornography and child prostitution
have become highly organized, multimillion dollar
industries that operate on a nationwide scale,’
and ’that such prostitution and the sale and
distribution of such pornographic materials are
carried on to a substantial extent through the
mails and other instrumentalities of interstate
and foreign commerce.’" United States v.
Winningham, 953 F.Supp. 1068, 1074 n.13 (D. Minn.
1996) (quoting S.Rep. No. 95438, at 3-5 (1978),
reprinted in 1978 U.S.C.C.A.N. 40, 42-43). There
can be no debate that "interstate trafficking in
child pornography has an effect on interstate
commerce." Rodia, 194 F.3d at 474. However,
Congress amended sec. 2252 in late 1988 to
include the clause at issue here, in large part,
to close a loophole in the original regulatory
scheme which was being "undercut by the child
pornographers who continued to manufacture their
own pornography intrastate." Id. at 479.

We agree with the Third Circuit that, by adding
sec. 2252(a)(4)(B) to the regulatory scheme,
Congress could have rationally reasoned as
follows:

Some pornographers manufacture, possess, and use
child pornography exclusively within the
boundaries of a state, and often only within the
boundaries of their own property. It is
unrealistic to think that those pornographers
will be content with their own supply, hence they
will likely wish to explore new or additional
pornographic photographs of children. Many of
those pornographers will look to the interstate
market as a source of new material, whether
through mail order catalogs or through the
Internet. Therefore, the possession of "home
grown" pornography may well stimulate a further
interest in pornography that immediately or
eventually animates demand for interstate
pornography. It is also reasonable to believe the
related proposition that discouraging the
intrastate possession of pornography will cause
some of these child pornographers to leave the
realm of child pornography completely, which in
turn will reduce the interstate demand for
pornography.

Id. at 477.

With this understanding of individual behavior
in a market system, Congress could have
rationally believed that intrastate possession of
child pornography bears a substantial
relationship to interstate commerce. Moreover, as
the First Circuit observed:

By outlawing the purely intrastate possession of
child pornography in sec. 2252(a)(4)(B), Congress
can curb the nationwide demand for these
materials. We believe that such possession,
’through repetition elsewhere,’ helps to create
and sustain a market for sexually explicit
materials depicting minors.

Robinson, 137 F.3d at 656 (quoting Lopez, 514
U.S. at 567, 115 S.Ct. 1624). We join the First
and Third Circuits in finding that there is a
nexus, via a market theory, between interstate
commerce and the intrastate possession of child
pornography.

We believe that sec. 2252(a)(4)(B), unlike the
gun control law in Lopez, was "an essential part
of a larger regulation of economic activity . .
. that arise[s] out of or [is] connected with a
commercial transaction, which viewed in the
aggregate, substantially affects interstate
commerce."/13 Lopez, 514 U.S. at 561. To
effectively regulate child pornography, Congress
could have legitimately found it necessary to
have "federal control over both the interstate
and local versions of the activity." Rodia, 194
F.3d at 479; see also Kenney, 91 F.3d at 890
("Permitting unregulated intrastate possessions
and transfers of machine guns . . . indirectly
undermines, via a market theory, the
effectiveness of the federal attempt to regulate
interstate commerce in machine guns."). Thus,
because sec. 2252(a)(4)(B) prohibits intrastate
activity that is substantially related to the
closely regulated interstate market of child
pornography, we conclude that the statute is a
valid exercise of Congress’s Commerce Clause
power.

In finding sec. 2252(a)(4)(B) constitutional, we
also agree with the Third Circuit that the
statute was reasonably adapted to a permissible
end because "there is a rational connection
between the regulatory means (punishing the
intrastate possession of child pornography) and
the asserted ends (prohibiting interstate
commerce in child pornography and reducing the
inevitable harm to children that stems from their
involvement in child pornography)." Rodia, 194
F.3d 481. While Angle argues that the lack of
express congressional findings with respect to
sec. 2252(a)(4)(B) militates against its
constitutionality, "Congress normally is not
required to make formal findings as to the
substantial burdens that an activity has on
interstate commerce." Lopez, 514 U.S. at 562. In
any event, sec. 2252(a)(4)(B) is not a statute
that "plows thoroughly new ground" as Congress
has long legislated in the area of child
pornography, and given the legislative history of
the regulatory scheme, the addition of the clause
at issue "was not novel but incremental." See
Kenney, 91 F.3d at 890; see also Maryland v.
Wirtz, 392 U.S. 183, 190 n.12 (1968) (noting
subsequent legislation was "presumably based on
similar findings and purposes with respect to the
areas newly covered" where Congress had earlier
passed related legislation with relevant
findings). Accordingly, we find Angle’s Commerce
Clause challenge unavailing.

C. Sufficiency of the Evidence

At the close of the government’s case, Angle
made a motion for a judgment of acquittal arguing
that the computer diskettes and zip disks
introduced to prove Count II (possession of child
pornography) had been altered by the government
in its effort to recover pornographic material,
and therefore, this evidence could not be
included among the "3 or more" matters required
to support a conviction under sec. 2252(a)(4)(B).
The district court denied the motion.
"Challenging the sufficiency of the evidence is
an uphill battle and the defendant bears a heavy
burden." United States v. Wallace, 212 F.3d 1000,
1003 (7th Cir. 2000). In reviewing the
sufficiency of the evidence supporting Angle’s
conviction, we must examine the evidence "in the
light most favorable to the government, drawing
all reasonable inferences in its favor." United
States v. Frazier, 213 F. 3d 409, 416 (7th Cir.
2000).

1. Section 2252(a)(4)(B)’s "3 or more"
Requirement

Count II of the superseding indictment charged
Angle with "knowingly possess[ing] more than 3
items, including computer disks, videotape and
computer zip disks, all of which had been
transported in interstate commerce and all of
which contained visual depictions of minor
children engaging in sexually explicit conduct,"
in violation of sec. 2252(a)(4)(B). Angle argues
that with the exception of the videotape
cassette, the rest of the evidence that the
government showed to contain child pornography
had been altered because the files recovered from
the diskettes and zip disks were deleted prior to
the search on February 3, 1998. As a result,
Angle claims that there was insufficient evidence
upon which to convict him.

As noted earlier, the February 3 search of
Angle’s residence produced one videotape
cassette, a number of computer diskettes and
several zip disks. Angle admits that the
videotape contained child pornography. With
respect to the computer diskettes and zip disks
found at his residence, Angle claims that he had
deleted the pornography files months before the
search. Therefore, he argues that the government
cannot show that he possessed child pornography
on those items "on or about" the date of the
search as charged in the superseding
indictment./14
 In reply, the government maintains that the
bulk of the pornography contained on the
confiscated diskettes and zip disks was "hidden
[that is] . . . erased, rendering them
temporarily unavailable, but nonetheless viable."
The government asserts that neither the diskettes
nor the zip disks had been reformatted in an
effort to destroy the files contained on them.
The government posits that Angle knowingly
possessed child pornography because he maintained
the ability to recover the files by using a
specialized utility program, such as Norton
Utilities, which is commonly available in
computer software stores. While no such program
was found in Angle’s residence at the time of the
search, the government contends that Angle could
have nonetheless obtained access to someone
else’s computer equipped with the capacity to
recover the pornography.

Although we find the parties’ arguments
interesting, we earlier noted that not all of the
pornography files contained on the confiscated
diskettes were deleted by Angle. In its brief,
the government submits that the prosecutor
admitted into evidence several diskettes
containing child pornography material that had
not been deleted and which were obtained during
the February 3 search. In his brief, Angle does
not refute the government’s contention, arguing
instead that the government failed to show that
the admitted evidence satisfied the
jurisdictional element of sec. 2252(a)(4)(B).
Because the record supports the government’s
contention, including the report prepared by
McDonnell, a computer specialist, who analyzed
the confiscated diskettes and zip disks, we find
that the government met its burden of showing
that Angle possessed "3 or more" matters of child
pornography at the time of the search./15

2. Section 2252(a)(4)(B)’s Jurisdictional
Element

We turn next to Angle’s argument that the
government failed to show that the child
pornography found in his residence satisfied the
jurisdictional element of sec. 2252(a)(4)(B). In
relevant part, sec. 2252(a)(4)(B) prohibits the
knowing possession of media/16 which contain
"any visual depiction . . . which was produced
using materials which have been mailed or . . .
shipped or transported [in interstate or foreign
commerce], by any means including by computer .
. . ." Although the government introduced
evidence that none of the computer diskettes
found in Angle’s residence had been manufactured
in Indiana and that the videotape cassette had
been manufactured in New Jersey, Angle argues
that this evidence alone is insufficient to
satisfy sec. 2252(a)(4)(B)’s jurisdictional
requirement because there was no proof that the
diskettes that traveled in interstate commerce
were used to create the visual depictions at
issue.

In support of this argument, Angle relies on
United States v. Wilson, 182 F.3d 737, 742-43
(10th Cir. 1999), where the Tenth Circuit held
that in order to fulfill the statute’s
jurisdictional requirement under a theory that
computer diskettes were used to produce
pornographic visual depictions, the government
must present evidence that the computer diskettes
were used to actually produce the computer
graphic files contained thereon. In reversing the
criminal defendant’s conviction under sec.
2252(a)(4)(B), the Tenth Circuit found that the
government had failed to satisfy the
jurisdictional element. The court noted, among
other things, that the government’s case "left
unanswered the question of whether a computer
graphics file is produced or created prior to
being recorded on a [computer diskette], or
whether, instead, it only comes into being at or
after the point it is recorded on the storage
media." Id. at 743.

The government in this case argues that we
should reject the Tenth Circuit’s interpretation
of the jurisdictional term "produced" because it
is "too narrow." The government further contends
that its demonstration at trial regarding the
recovery of the deleted files sufficiently proved
"the interaction between the pornography and the
[interstate] commodity." In his reply brief,
Angle submits that "[w]hile the government
introduced photographs that had been stored on
zip disks and diskettes that had traveled in
interstate commerce, it failed to demonstrate
that these images were produced using those zip
disks and diskettes." Appellee’s Reply Br. at 7
(emphasis in original).

While the term "produced" is not defined by
statute, the term "producing" is defined as
"producing, directing, manufacturing, issuing,
publishing, or advertising." 18 U.S.C. sec.
2256(3). In United States v. Lacy, 119 F.3d 742
(9th Cir. 1997), the Ninth Circuit held that
evidence that the defendant copied child
pornography using computer equipment (i.e., a
computer and computer diskettes) that had
traveled in interstate commerce satisfied the
jurisdictional term "produced," as used in sec.
2252(a)(4)(B). The court found that the visual
depictions in issue there were "created--
’produced’--when [defendant] used his computer to
download data," which we take to mean copying the
child pornography images (or visual depictions)
onto computer diskettes. Id. at 749. In
concluding that the government had proved the
jurisdictional element of sec. 2252(a)(4)(B), the
court reasoned that "[t]he statute requires only
that visual depictions be produced; it does not
matter that the depictions on [defendant’s]
computer were copies rather than originals." Id.

We concur with the Ninth Circuit’s analysis.
The Tenth Circuit’s interpretation of the
jurisdictional term "produced" is far too
restrictive as it essentially renders meaningless
the statutory definition of "producing" (which
includes the terms "issuing," "publishing," or
"advertising"), and focuses entirely on the
circumstances surrounding the original or actual
production of the visual depiction. We believe,
like the Ninth Circuit, that computerized visual
depictions (i.e., computer graphic files) are
"produced" when computer equipment, including
computer diskettes, are used to copy the
depictions onto the diskettes that have traveled
in interstate commerce. See Lacy, 119 F.3d at
747-49; see also United States v. Perreault, 195
F.3d 1133, 1134-35 (9th Cir. 1999) (noting sec.
2252(a)(4)(B) required "proof that the physical
medium of the computer, i.e., the drives or
discs, was known to contain the prohibited visual
depictions and that the physical matter had
passed through interstate or foreign commerce").

Here, it is undisputed that the computer
diskettes traveled in interstate commerce. And
because a reasonable factfinder could find that
Angle "produced" the pornographic files by
downloading or copying images onto the computer
diskettes that traveled interstate, we find that
the government satisfied the jurisdictional
element of sec. 2252 (a)(4)(B).

D. Evidentiary Challenges

1. Prior Convictions
Angle contends that the district court erred in
admitting evidence of his prior convictions under
Federal Rule of Evidence 414./17 Angle was
previously convicted for sodomy, in 1977, and
child molestation, in 1987. Prior to trial, the
government had filed a notice of intent to admit
evidence of these two convictions under Federal
Rule of Evidence 403, 404, 413, and 414, arguing
that the prior convictions demonstrated Angle’s
"intent" to attempt to obtain pornography through
the mail (Count I) and both his "intent" and
"motive" for attempting to solicit a minor to
engage in a sexual act for which any person can
be criminally prosecuted under federal, state, or
local law (Count III). In rebuttal, Angle argued
that the prior convictions were unfairly
prejudicial and that they were not "offenses of
child molestation" within the meaning of Rule
414.

On appeal, Angle claims that the court’s
admission of the prior sex crime convictions was
improper because the ages of the victims did not
fall within the meaning of a "child" for purposes
of Rule 414./18 Because Angle did not raise
this argument below, he submits, and the
government concurs, that our review is for plain
error. Plain error is: (1) an error; (2) that is
plain, meaning obvious or clear; and (3) that
affects substantial rights. See United States v.
Olano, 507 U.S. 725, 732-34 (1993). Under this
exacting standard, we will not reverse the
district court unless, in our discretion, we find
the error "seriously affects the fairness,
integrity or public reputation of judicial
proceedings." Id. at 736-37.

While conceding that the district court erred
in admitting the 1977 sodomy conviction under
Rule 414, the government submits that the
conviction could nonetheless have been admitted
under Rule 413./19 The government further
asserts that the admission of that conviction
was, in any event, harmless error. As for the
1987 child molestation conviction, the government
maintains that the court properly admitted the
evidence under Rule 414.

Even if Angle were able to establish plain
error from the court’s admission of these two
convictions, we are not inclined to correct the
error because it did not seriously affect the
fairness, integrity or public reputation of
judicial proceedings. See id.; see also United
States v. Lindsey, 123 F.3d 978, 985 (7th Cir.
1997). Our recitation of the facts alone
demonstrates that there was overwhelming evidence
on which to convict Angle, a self-professed "boy
lover." For instance, with respect to Counts I
and II, the strongest evidence demonstrating
guilt was Angle’s order of child pornography
videotapes from Jake’s Photo Service and his
possession of a videotape cassette and computer
diskettes containing child pornography. As for
Count III (attempted solicitation of a minor, by
Internet and telephone, for purposes of sexual
gratification), the evidence regarding the
various conversations Angle had with Jeff/Wolf
One overwhelmingly supports that conviction and
Angle’s argument downplaying the solicitation
(over the Internet and telephone) as mere
"fantasy" is itself fanciful./20 Thus, we
decline to correct any error by the district
court with respect to its evidentiary rulings.
 2. Uncharged Child Pornography Possession

Angle argues that the district court erred in
admitting evidence that he possessed child
pornography when Customs agents confiscated
videotape cassettes he had in his possession on
January 26, 1998. Angle’s encounter with Customs
agents occurred less than two weeks after he had
ordered child pornography videotapes over the
Internet and nearly one week before the search of
his residence. The government sought to admit
this evidence to show that "the defendant acted
knowingly and without mistake in possessing or
attempting to possess child pornography, and in
attempting over the Internet and by phone to
engage a minor in a criminal sexual act." The
district court, over Angle’s objection, admitted
the evidence to show knowledge and lack of
mistake pursuant to Federal Rule of Evidence
404(b)./21 We review the district court’s
evidentiary ruling only for an abuse of
discretion. United States v. Roberts, 933 F.2d
517, 519 (7th Cir. 1991). Under this deferential
standard, Angle bears a heavy burden in
challenging the district court’s decision to
admit the challenged evidence. We have previously
stated that evidence can be admitted pursuant to
Rule 404(b) if: (1) it is directed toward
establishing a matter in issue other than the
defendant’s propensity to commit the crime
charged; (2) it shows that the other act is
similar enough and close enough in time to be
relevant to the matter in issue; (3) it is
sufficient to support a jury finding that the
defendant committed the extrinsic act; and (4) it
has probative value that is not substantially
outweighed by the danger of unfair prejudice. See
United States v. Allison, 120 F.3d 71, 74-75 (7th
Cir. 1997).

Here, Angle contends that his knowledge or lack
of mistake was not "in issue" because he never
contested whether he acted "knowingly" for
purposes of the charged offenses. However, the
government submits that it bears the burden of
establishing each element of the charged
offenses. Angle counters that the evidence at
issue was irrelevant because his counsel admitted
during opening statements that Angle knew he was
ordering child pornography over the Internet and
that he did indeed possess child pornography
prior to February 3, 1998. The government retorts
that a lawyer’s opening statement is not evidence
and therefore has no bearing on this issue.
We find no abuse of discretion by the district
court in admitting the challenged evidence. We
agree with the district court’s finding that this
evidence, like the charged offenses, involved
exploitation of minors for sexual gratification
and that the proofs would likely support a jury
finding that Angle committed the extrinsic act
(i.e., possessing child pornography on January
26, 1998). Moreover, the government argues that
the challenged evidence was "inextricably"
connected with the evidence of the charged
offenses and also helped to complete the story
regarding the charged offenses (e.g., the
evidence provided a potential explanation for why
Angle delayed shipment of his order of child
pornography videotapes, why he arranged for the
deletion of pornography contained on computer
equipment, and why no computer hard drive was
recovered). In Roberts, we observed that
"evidence of uncharged criminal activity is not
considered ’other crimes’ evidence under [Federal
Rule of Evidence] 404(b) if it ’arose out of the
same transaction or series of transaction as the
charged offense, if it [is] inextricably
intertwined with the evidence regarding the
charged offense, or if it is necessary to
complete the story of the crime [on] trial.’" 933
F.2d at 520 (internal quotation and citation
omitted). Here, we agree that the challenged
evidence helped complete the story behind the
charged offenses. But even if the challenged
evidence should have been excluded, there was
substantial evidence (as discussed earlier) upon
which to convict Angle for the charged offenses.

E. Sentencing Challenges

1. Upward Departure

Angle contends that the district court erred in
imposing an upward departure pursuant to U.S.S.G.
sec. 4A1.3./22 Because Angle’s 1977 sodomy
conviction was too old to be counted in
determining his criminal history category under
the guidelines, the government sought an upward
departure that would more accurately reflect
Angle’s criminal history. Angle contends that the
court did not follow proper procedure in granting
the government’s request for an upward departure
and that the record offers no evidence that the
court used the sentencing guidelines to fashion
the departure.

Guideline sec. 4A1.3 provides for an upward
departure where "reliable information indicates
that the criminal history category does not
adequately reflect the seriousness of the
defendant’s criminal conduct or the likelihood
that the defendant will commit other crimes." In
this circuit, if a court chooses to depart from
the sentencing guidelines, it must identify the
factors in the defendant’s criminal history that
the guidelines did not take into account and that
are proper grounds for departure. United States
v. Tai, 994 F. 2d 1204, 1213 (7th Cir. 1993).
 While the district court identified factors in
Angle’s criminal history not taken into account
under the sentencing guidelines (to wit, the 1977
sodomy conviction and his likelihood for
recidivism), the court failed, as the government
concedes, to offer an explanation as to how the
degree of the departure is linked to the
structure of the sentencing guidelines. See
United States v. Ferra, 900 F.2d 1057, 1062-64
(7th Cir. 1990); United States v. Scott, 914 F.2d
959, 963-65 (7th Cir. 1990). We have previously
instructed courts to justify departures in terms
of the structure of the sentencing guidelines. In
Tai, we outlined the proper methodology that
courts should employ in making departures based
on inadequate criminal history under sec. 4A1.3:

If the defendant’s criminal history category is
found not to adequately reflect the seriousness
of his past crimes or the likelihood of his
committing future crimes, the district court may
depart from the otherwise applicable guideline
range. To do so, the court must identify the
factors in the defendant’s criminal history that
the guidelines did not take into account and that
are proper grounds for departure. Then, the court
must explain why those factors make the
defendant’s criminal history more comparable to
criminal histories found in a higher category
than to those found in the defendant’s category.
In effect, this requires the district court to
assign some value to each ground for departure;
in that regard, guideline provisions dealing with
analogous factors should be considered. The
sentence that is ultimately chosen must fall
within the guideline range applicable to
whichever higher criminal history category best
represents the defendant’s criminal history.

994 F.2d at 1213-14 (citations omitted).

The district court failed to adhere to this
procedure. Thus, on remand, the court must offer
an explanation for the extent of its departure in
accordance with the procedures outlined
above./23

2. U.S.S.G. sec. 2G1.1(c)(2)’s Cross-Reference to
U.S.S.G. sec. 2A3.1

In Count III, the government charged Angle with
attempting to solicit a minor via the Internet
and telephone to engage in prohibited sexual
conduct, in violation of 18 U.S.C. sec. 2422(b).
For violations of 18 U.S.C. sec. 2422, U.S.S.G.
sec. 2G1.1(c)(2) states: "If the offense involved
criminal sexual abuse, attempted criminal sexual
abuse, or assault with intent to commit criminal
sexual abuse, apply sec. 2A3.1 (Criminal Sexual
Abuse; Attempt or Assault with Intent to Commit
Criminal Sexual Abuse)." The district court
applied this cross-reference to U.S.S.G. sec.
2A3.1, the sexual abuse guideline, to increase
Angle’s base offense level for Count III from
fourteen to twenty-seven. Angle contends that the
district court erred in applying sec.
2G1.1(c)(2)’s cross-reference to sec. 2A3.1.
Because Angle challenges the court’s application
of sec.2G1.1(c)(2), our review is de novo. See
United States v. Turchen, 187 F.3d 735, 738 (7th
Cir. 1999).

In support of his challenge, Angle argues that
the underlying conduct in Count III did not
involve "criminal sexual abuse," "attempted
criminal sexual abuse," or "assault with intent
to commit criminal sexual abuse," and therefore,
the cross-reference to sec. 2A3.1 was
inapplicable. Angle contends that the district
court should have derived the meaning of the
terms used in sec. 2G1.1(c)(2) (i.e., criminal
sexual abuse, attempted criminal sexual abuse, or
assault with intent to commit sexual abuse) by
looking to the criminal violations, 18 U.S.C.
sec.sec. 2241-42 (aggravated and simple sexual
abuse), to which the sexual abuse guideline, sec.
2A3.1, applies./24 Because sec. 2G1.1(c)(2)
itself does not define these terms, the
government submits that U.S.S.G. sec. 1B1.3
(Relevant Conduct) permits a district court to
consider "offense conduct," including all acts
and omissions "that occurred during the
commission of the offense of conviction," in
devising an appropriate sentence. U.S.S.G. sec.
1B1.3(a)(1).
As the government observes, the term "offense"
is defined broadly to include not only "the
offense of conviction,"/25 but also all
conduct deemed relevant by sec. 1B1.3. U.S.S.G.
sec. 1B1.1 cmt. 1(l). Where, as here, the
guidelines expressly provide for application of
sec. 2A3.1--the sexual abuse guideline--and the
necessary proof is offered, the government is
correct that the district court may punish a
defendant for relevant conduct (e.g., "all acts
and commissions . . . that occurred during the
commission of the offense of conviction," sec.
1B1.3(a)(1)(A)), notwithstanding whether the
defendant was actually convicted of a particular
offense. See United States v. Dolloph, 75 F.3d
35, 38-40 (1st Cir. 1996). The clear intent
behind sec. 2G1.1(c) (2)’s cross-referencing to
the sexual abuse guideline, sec. 2A3.1, is to
attach the proper penalty for the underlying
sexual conduct. Here, the district court did not
render any particularized findings as to whether
Angle engaged in activity that reasonably
amounted to (i.e., "involved") criminal sexual
abuse or attempted sexual abuse as defined by the
federal statutes. Because Angle’s argument that
the underlying "offense" conduct "bears no
resemblance" to the kind of conduct prohibited by
sec.sec. 2241 and 2242 was unanswered, we remand
for a redetermination of whether the
cross-reference to the sexual abuse guideline,
sec. 2A3.1, is applicable to this case.

3. Two-Level Enhancement Under U.S.S.G.
sec. 2A3.1(b)(2)(B)

Angle contends that the district court erred in
increasing his base offense level by two levels
under U.S.S.G. sec. 2A3.1(b)(2)(B). Section
2A3.1(b)(2)(B) authorizes a two-level enhancement
"if the victim had attained the age of twelve
years but had not attained the age of sixteen
years." Angle claims that since there was no real
or actual "victim" in this case, sec.
2A3.1(b)(2)(B) does not apply. Angle did not
object to the district court’s application of
sec. 2A3.1(b)(2)(B), so we review the forfeited
issue for plain error. The term "victim" is not
defined by sec. 2A3.1 and Angle submits that he
has not located any case authority applying sec.
2A3.1(b)(2)(B) to a "fictional" victim. Angle
correctly observes that none of our prior cases
nor any decided by our sister circuits have
considered the question of whether sec. 2A3.1
applies to fictional victims./26

Considering the lack of case authority on this
issue, we conclude that, if there was error,
Angle cannot demonstrate (which he must given the
plain error standard) that the error was "clear
or obvious" (in other words, that "a legal rule
was violated during the district court
proceedings"). Olano, 507 U.S. at 734 ("At a
minimum, a court of appeals cannot correct an
error pursuant to [Federal Rules of Criminal
Procedure] 52(b) unless the error is clear under
current law."); cf. United States v. Byrd, 116
F.3d 770, 773 (5th Cir. 1997) (plain error
standard not met where the only court to address
contested issue ruled contrary to defendant’s
position); see also United States v. Frady, 456
U.S. 152, 163 (1982) (plain errors are those so
conspicuous that "the trial judge and prosecutor
were derelict in countenancing [them], even
absent the defendant’s timely assistance in
detecting [them]"). On this basis, we find that
the district court did not commit plain error by
applying sec. 2A3.1(b)(2)(B) in the manner in
which it did.

4. Supervised Release

Angle finally contends that the district court
erred by imposing a sex offender registration
requirement as a special condition of supervised
release. He claims that the district court should
have provided notice of its intent to impose the
condition because it was analogous to an upward
departure. The government acknowledges that Angle
did not receive notice of the special condition
prior to sentencing. Nevertheless, the government
contends that the imposition of the special
condition for sex offender registration is
directly related to the offense charged and
therefore it was within the district court’s
discretion to impose the condition.

We review for abuse of discretion the district
court’s imposition of a special condition of
supervised release. United States v. Schave, 186
F.3d 839, 841 (7th Cir. 1999). A district court
may impose a special condition of supervised
release that it deems appropriate so long as the
condition: "(1) is reasonably related to
specified sentencing factors, namely the nature
and circumstances of the offense and the history
and characteristics of the defendant; (2) is
reasonably related to the need to afford adequate
deterrence, to protect the public from further
crimes of the defendant, and to provide the
defendant with needed educational or vocational
training, medical care, or other correctional
treatment in the most effective manner; (3)
involves no greater deprivation of liberty than
is reasonably necessary to achieve these goals;
and (4) is consistent with any pertinent policy
statements issued by the Sentencing Commission."
Id. (citations omitted).

Here, Angle contests the district court’s
imposition of a sex offender registration
requirement (which is not listed among the
mandatory conditions set forth in 18 U.S.C. sec.
3563(a) or the discretionary conditions of
probation set forth in 18 U.S.C. sec. 3563(b)).

Federal Rule of Criminal Procedure 32(c)(1)
states in part: "At the sentencing hearing, the
court must afford counsel for the defendant and
for the Government an opportunity to comment on
the probation officer’s determinations and on
other matters relating to the appropriate
sentence." The Supreme Court held in Burns v.
United States, 501 U.S. 129, 138 (1991), that
"before a district court can depart upward on a
ground not identified as a ground for upward
departure either in the presentence report or in
a prehearing submission by the Government, Rule
32 requires that the district court give parties
reasonable notice that it is contemplating such
a ruling." The Court observed that: "’Th[e] right
to be heard has little reality or worth unless
one is informed’ that a decision is
contemplated." Id. at 501 (quoting Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306
(1950)). In this regard, an interpretation of
Rule 32 not requiring notice would be
"inconsistent with Rule 32’s purpose of promoting
focused, adversarial resolution of the legal and
factual issues relevant to fixing Guidelines
sentences." Burns, 501 U.S. at 137.

Applying Rule 32 and the Supreme Court’s
decision in Burns, the Fifth Circuit has required
that reasonable presentence notice be given to
criminal defendants--either by the presentence
report, a prehearing submission, or the district
court itself--when the court is considering
imposing a sex offender registration as a special
condition of supervised release. See United
States v. Coenen, 135 F.3d 938 (5th Cir. 1998).
The Fifth Circuit in Coenen, supra, concluded
that since the sex offender registration
requirement was analogous to an upward departure
(as it was not expressly contemplated by the
guidelines), Rule 32 and Burns required
presentencing notice./27 We agree with the
Fifth Circuit’s decision in Coenen and find its
reasoning apt to this case.

Because we believe Angle was entitled to
presentencing notice in this case, the district
court should reconsider the issue on remand after
providing the parties with an opportunity to
comment on the appropriateness of the sex
offender registration requirement as a special
condition of supervised release.

III

For the foregoing reasons, we AFFIRM Angle’s
convictions, VACATE his sentence, but REMAND the
case for resentencing consistent with this
opinion.

/1 In investigating his children’s Internet
activity, Gross logged onto the Internet using
their computer screen name, "Wolf One 676," and
created an electronic (i.e., on-line) profile
that Wolf One 676 ("Wolf One") was a 13-year-old
male named "Jeff". We will refer to this identity
as "Jeff/Wolf One".

/2 Jake’s Photo Service and Metro Comp Services were
two pornography-related businesses that the
federal government had closed and began using for
its undercover operation, targeting individuals
who had bought child pornography material from
those businesses in the past.

/3 Prior to sending the e-mail messages, a search of
Jake’s Photo Service and Metro Comp Services
yielded numerous items of child pornography as
well as customer membership lists. Angle’s name
appeared on one of the customer lists as having
a special membership which allowed him to access
child pornography video lists via e-mail.

/4 In relevant part, 18 U.S.C. sec. 2252(a)(2)
provides criminal penalties for any person who
attempts to:

knowingly receive[ ], or distribute[ ], any
visual depiction that has been mailed, or has
been shipped or transported in interstate or
foreign commerce, or which contains materials
which have been mailed or so shipped or
transported, by any means including by computer,
. . . if--

(A) the producing of such visual depiction
involves the use of a minor engaging in sexually
explicit conduct; and

(B) such visual depiction is of such conduct[.]

/5 At the time of Angle’s arrest, sec. 2252 provided
in relevant part:

Any person who . . . knowingly possesses 3 or
more books, magazines, periodicals, films, video
tapes, or other matter which contain any visual
depiction that has been mailed, or has been
shipped or transported in interstate or foreign
commerce, or which was produced using materials
which have been mailed or so shipped or
transported, by any means including by computer,
if--

(i) the producing of such visual depiction
involves the use of a minor engaging in sexually
explicit conduct; and

(ii) such visual depiction is of such conduct;
shall be punished as provided in subsection (b)
of this section.

18 U.S.C. sec. 2252(a)(4)(B) (1994) (amended
1998, in part, to reduce from "3 or more" to "1
or more" the number of matters containing child
pornography required for a conviction; the
amendment does not apply to Angle).

/6 Section 2422(b) states:

Whoever, using the mail or facility or means of
interstate or foreign commerce, or within the
special maritime and territorial jurisdiction of
the United States knowingly persuades, induces,
entices, or coerces any individual who has not
attained the age of 18 years, to engage in
prostitution or any sexual activity for which any
person can be charged with a criminal offense, or
attempts to do so, shall be fined under this
title, imprisoned not more than 15 years, or
both.

/7 The government was also able to recover deleted
child pornography files from several zip disks
using Norton Utilities. The zip disks along with
the hard copy images that were recovered from
them were admitted into evidence.

/8 In Count III, the government charged Angle with
violating 18 U.S.C. sec. 2422 by "knowingly
us[ing] a facility or means of interstate
commerce, including the telephone wires, and
Internet, to attempt to persuade, induce and
entice a child, under 18 years of age, to engage
in a sexual act for which any person may be
criminally prosecuted under federal, state or
local law."

/9 For violations of 18 U.S.C. sec. 2422 (Count
III), the appropriate guideline is sec. 2G1.1.
Section 2G1.1(c) (2) states:

If the offense involved criminal sexual abuse,
attempted criminal sexual abuse, or assault with
intent to commit criminal sexual abuse, apply
sec. 2A3.1 (Criminal Sexual Abuse; Attempt or
Assault with the Intent to Commit Criminal Sexual
Abuse).

/10 No written motion to suppress was ever filed.

/11 Although Angle first raises this argument on
appeal, we will address the merits of the
Commerce Clause challenge because the government
has itself waived a waiver defense by not
asserting it in its brief or at oral argument.
See United States v. Leichtnam, 948 F.2d 370, 375
(7th Cir. 1991); United States v. Dunkel, 927
F.2d 955, 956 (7th Cir. 1991).

/12 The government asserts, in passing, that we
should analyze the statute as a category two
regulation (i.e., a regulation of the
instrumentalities of interstate commerce, or
persons or things in interstate commerce). The
government apparently views components of child
pornography (for example here, a videotape
cassette, diskettes, and zip disks) as "things"
in interstate commerce which Congress has chosen
to regulate. We have some concern whether Lopez
intended for category two to cover mere
regulation (as opposed to protection) of things
in interstate commerce. See United States v.
Wilson, 73 F.3d 675, 686-88 (7th Cir. 1995).
Instead, we believe sec. 2252(a)(4)(B) is better
viewed as a category three regulation and, thus,
we will examine the nexus between the intrastate
activity regulated and interstate commerce. See
Lopez, 514 U.S. at 559.

/13 In this sense, sec. 2252(a)(4)(B) also differs
from the statute at issue in United States v.
Morrison, 529 U.S. 598 (2000), where the Supreme
Court struck down the Violence Against Women Act
(VAWA), 42 U.S.C. sec. 13981, on the ground that
it exceeded Congress’s power under the Commerce
Clause. In striking down sec. 13981 of the VAWA,
the Court relied, in part, on the fact that sec.
13981, like the gun control law struck down in
Lopez, was directed only to noneconomic criminal
activity.

/14 Angle further contends that even though there was
testimony that he gave a number of computer
diskettes to his friends and arranged for the
erasure of those diskettes days before the
search, there was no evidence showing that the
diskettes contained child pornography or that the
diskettes had traveled in interstate commerce as
required by sec. 2252(a)(4)(B).

/15 Although this evidence (along with the
confiscated child pornography videotape)
satisfies the statutory requirement for "3 or
more" matters, we comment briefly on the evidence
relating to the deleted pornography files. The
government put forth testimony, through
McDonnell, that a computer utilities program can
recover deleted information on a diskette that
has not been overwritten with new information.
The specialized utility program, in effect,
decodes the deleted information (here images) in
order to render it viewable to the naked eye. In
this sense, the government claims that the
pornographic images always existed on the
confiscated diskettes and zip disks. While
admitting that the diskettes once contained child
pornography, Angle insists that he had no
knowledge on how to recover the deleted files or
images. When queried by the court, however, Angle
testified (rather convincingly) about his
familiarity with computers such that the court
(here, the factfinder) could have disbelieved his
assertion that he did not know how to recover the
deleted files on the diskettes and zip disks
found at his residence. In the circumstances of
this case, the government asserted a plausible
theory that Angle merely deleted the files in
order to "safe harbor" his collection of child
pornography. The import of this theory being that
Angle possessed, with the requisite knowledge,
pornography (though deleted, but recoverable) on
the confiscated diskettes and zip disks. That
said, however, it is unnecessary to reach the
question of whether this evidence standing alone
(or in combination with the confiscated child
pornography videotape) is sufficient to support
the conviction.

/16 We have previously construed the statutory
language "other matter" as anything which is
capable of containing a visual depiction. United
States v. Hall, 142 F.3d 988, 999 (7th Cir.
1998).

/17 Rule 414 provides in relevant part: "In a
criminal case in which the defendant is accused
of an offense of child molestation, evidence of
the defendant’s commission of another offense or
offenses of child molestation is admissible, and
may be considered for its bearing on any matter
to which it is relevant."

/18 Under Rule 414(d), a "child" means a person below
the age of fourteen. Angle contends that the 1977
conviction involved a fifteen year-old male and
the 1987 conviction involved a child who was
between twelve and sixteen years old during the
three-year period over which the crime took
place.

/19 Rule 413 applies only "[i]n a criminal case in
which the defendant is accused of an offense of
sexual assault" and makes admissible "evidence of
the defendant’s commission of another offense or
offenses of sexual assault."

/20 Angle made various statements to Jeff/Wolf One in
an effort to gain his affection and trust, for
instance, "I’ve missed you so much," "you know if
you were with me," "I’ve got a lot of feelings
for you," "I love you," "sweet dreams to my lover
boy, "if you were here I would be all over you,"
"I do not think you have had any one to really
care a whole lot about you," and "I get excited
by talking to you and you make my day." Angle
also indicated his desire to be with Jeff/Wolf
One sexually by asking: "do you want to feel me
inside of you," "been keeping it hard for me,"
"you going to let me make love to you," and "have
you been sleeping naked lately." Furthermore,
Angle offered to visit Jeff/Wolf One in Colorado
and tried to get his address.

/21 Rule 404(b) states in part:
Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in
order to show action in conformity therewith. It
may, however, be admissible for other purposes,
such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or
absence of mistake or accident . . . .

/22 While the district judge did not specifically
indicate that the departure was granted pursuant
to U.S.S.G. sec. 4A1.3, he did cite provisions of
that guideline and the parties agree that sec.
4A1.3 was the only basis upon which the court
could have granted the upward departure.

/23 Angle argues that the extent of the departure was
unreasonable. Even though we have noted that the
district court offered no explanation for the
extent of the departure, Angle offers his own
"possible" explanations. In light of the remand
on the departure issue, we decline to accept or
reject an explanation that the district court may
never have considered. See Tai, 994 F.2d at 1214.

/24 These code sections (which are part of the sexual
abuse chapter) govern "sexual act[s]," as defined
by 18 U.S.C. sec. 2246, which are unlawful in
specified situations. Guideline sec. 2A3.1
generally applies to conduct violating sec.sec.
2241 and 2242.

/25 The "offense of conviction" only encompasses
conduct "charged in the count of the indictment
or information of which the defendant was
convicted." U.S.S.G. sec. 1B1.2(a).

/26 In United States v. Butler, 92 F.3d 960, 963 n.6
(9th Cir. 1996), the Ninth Circuit mentioned (in
a footnote) that the lower court had declined to
apply sec. 2A3.1 because the victims were
fictional. The court, however, never addressed
the meaning or scope of the term "victim," and
made no ruling on this question one way or
another.

/27 In further support of requiring presentencing
notice, the Coenen court found that the sex
offender registration requirement was analogous
to an order requiring a defendant convicted of an
offense involving fraud or other intentionally
deceptive practice to give notice of the
existence and nature of the conviction to
victims, pursuant to 18 U.S.C. sec. 3555. Coenen,
135 F.3d at 941-42 (noting in this regard that 18
U.S.C. sec. 3553(d) requires presentencing
notice: "[p]rior to imposing an order of notice
pursuant to section 3555, the court shall give
notice to the defendant and the Government that
it is considering imposing such an order").