United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS October 15, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-30159
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY R. VENSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:01-CR-60043-01
Before REAVLEY, HIGGINBOTHAM, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Anthony R. Venson appeals his convictions for possessing child
pornography transported in interstate commerce under 18 U.S.C. §
2252A(a)(5)(B) and receiving child pornography mailed in interstate
commerce under 18 U.S.C. § 2252A(a)(2)(A). He argues that there is
insufficient evidence of the child pornography’s transportation in
interstate commerce. For the following reasons, we AFFIRM.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Venson’s convictions resulted from a sting operation conducted
by the Dallas Police Department and the U.S. Postal Service that
targeted purchasers of child pornography. The Department of
Justice funded the operation. In an effort to enforce child
pornography laws, the government sent an email to 278 people
advertising a company called “Providers 4 You.” The email told its
recipients that this company could provide unspecified “hard to
find materials.”
Venson responded to the email and was directed to a special
government-operated website created for the sting operation.
There, he filled out a form that included his email address and
indicated that his “special request” was for “erotic kid videos.”
A series of email correspondence began between Gregory Dugger, an
undercover agent, and Venson discussing the material, its price and
delivery. Dugger asked what age, gender, and theme interested
Venson. Venson replied one hour later, telling Dugger that he
wanted material featuring girls between the ages of 8 and 18
involved in “explicit sex acts.” Dugger offered to provide a list
of these types of videos and their prices, and Venson requested
that it be sent to him. Venson ordered seven videos and sent a
money order to Dugger.
Dugger contacted a U.S. Postal inspector in New Orleans to
advise him of the situation. The two arranged for a controlled
delivery of the requested videos. Dugger made copies of seven
videos that the Dallas Police Department had previously confiscated
2
and sent them to the Postal Inspector. The Inspector then packaged
the videos and, disguised as a mailman, delivered them to Venson at
his home in Louisiana. Venson personally signed for and accepted
the package.
Federal agents executed a search warrant after the delivery.
Venson admitted during the search that he requested the videos and
that he had downloaded other child pornography off the internet.
An examination of his computer revealed that Venson had more than
a thousand images of child pornography on his computer. Included
in these images was a well-known series of child pornography that
originated in Texas. These images came from a father who sexually
molested and photographed his young daughter, and then placed the
images on the internet. Hearing this evidence, the jury convicted
Venson of both possessing and receiving child pornography.
On appeal, Venson first argues that there is insufficient
evidence of the interstate elements of these offenses. “In
reviewing an appeal based on insufficient evidence, the standard is
whether any reasonable trier of fact could have found that the
evidence established the appellant’s guilt beyond a reasonable
doubt.”1 This court reviews the evidence in the light most
favorable to the verdict.2 We do not ask “whether the trier of
1
United States v. Jaramillo, 42 F.3d 920, 922-23 (5th Cir.),
cert. denied, 514 U.S. 1134 (1995).
2
Id. at 923.
3
fact made the correct guilt or innocence determination, but rather
whether it made a rational decision to convict or acquit.”3
As to the possession charge, there is sufficient evidence to
support the jury’s verdict. To convict Venson under 18 U.S.C. §
2252A(a)(5)(B), the government had to show that he knowingly and
intentionally possessed a computer and computer storage disks
containing child pornography, as defined by 18 U.S.C. § 2256, which
had been transported in interstate commerce. Venson argues that
the government provided no evidence of interstate transportation of
his child pornography. His argument fails. Venson admitted
downloading the images off the internet. The government provided
evidence that a group of these images originated in Texas and was
widely disseminated. The evidence indicating that Venson took
these images from the internet provided the jury with sufficient
evidence to find that they moved in interstate commerce.4
Venson next argues that his conviction for receipt of child
pornography cannot stand because the videotapes were not “mailed”
within the meaning of 18 U.S.C. § 2252A(a)(2)(A).5 We reject
3
Herrera v. Collins, 506 U.S. 390, 402 (1993).
4
United States v. Runyan, 290 F.3d 223, 239 (5th Cir.), cert.
denied, 537 U.S. 888 (2002) (joining the First Circuit in holding
that “[t]ransmission of photographs by means of the Internet is
tantamount to moving photographs across state lines and thus
constitutes transportation in interstate commerce.”
5
18 U.S.C. § 2252A(a)(2)(A) punishes any person who
“knowingly receives or distributes . . . any child pornography
that has been mailed, or shipped or transported in interstate or
4
Venson’s argument. The evidence in this case indicates that the
package Venson received was delivered by an official post office
agent. It had the proper postage on it, and it was sealed and
addressed to him. Under these circumstances, the package
constituted mail, even if it was taken out of the “regular stream
of the mail.”6 The controlled delivery of the videotapes in this
case therefore satisfied the “mail” requirement of 18 U.S.C. §
2252A(a)(2)(A).
We also reject Venson’s argument, raised for the first time on
appeal, that the government’s behavior in this case was so
“outrageous” as to violate his due process rights. In order to
prevail on a claim of outrageous government conduct, Venson “must
show government overinvolvement combined with a passive role by the
defendant.”7 This he cannot do. The evidence clearly shows that
the government did not at any time coerce, encourage, or mislead
Venson into purchasing the videotapes; indeed, the government took
special care not to inadvertently encourage Venson to purchase
child pornography. Nowhere in its initial e-mail or on the
foreign commerce by any means, including by computer.”
6
See United States v. Dornhofer, 859 F.2d 1195, 1197-98 (4th
Cir. 1988) (concluding that the “mailing” element of 18 U.S.C. §
2252(a)(2) was satisfied when the package was addressed, sealed,
and delivered by a postal employee, even though it was taken out of
the “regular stream of the mail”); United States v. Moore, 916 F.2d
1131, 1137 n.12 (6th Cir. 1990);
7
United States v. Asibor, 109 F.3d 1023, 1039 (5th Cir.
1997).
5
“Providers 4 You” website did the government advertise “child
pornography.” The first mention of child pornography came from
Venson when he filled out his “special request.” Venson was at all
times an active and willing participant in the endeavor, and his
claim that the government’s behavior was outrageous must fail.
We similarly reject his argument that the government has
somehow violated the “intent of Congress” in passing the Child
Pornography statutes. Even if congressional intent were somehow
relevant to this case, the government’s careful, controlled
delivery of the videotapes evinces the utmost care with which it
safeguarded the interests of the children depicted in the
videotapes Venson purchased. Venson’s contention to the contrary
is without merit.
AFFIRMED.
6