FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10550
Plaintiff-Appellee, D.C. No.
v. 3:10-cr-00023-
JOHN WILLIAMS, RCJ-VPC-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, Chief District Judge, Presiding
Argued and Submitted
September 13, 2011—San Francisco, California
Filed October 27, 2011
Before: Sidney R. Thomas and N. Randy Smith,
Circuit Judges, and Solomon Oliver, Jr.,
Chief District Judge.*
Opinion by Judge Thomas
*The Honorable Solomon Oliver, Jr., Chief Judge, U.S. District Court
for the Northern District of Ohio, sitting by designation.
19559
UNITED STATES v. WILLIAMS 19561
COUNSEL
Michael K. Powell, Assistant Federal Defender, Reno,
Nevada, for the appellant.
Carla B. Higginbotham, Assistant United States Attorney,
Reno, Nevada, for the appellee.
OPINION
THOMAS, Circuit Judge:
This appeal presents the question of whether a defendant
can be convicted under 18 U.S.C. § 2251(d)(1)(A) if he does
not produce the child pornography which he advertises or
offers to distribute. We conclude that he can, and we affirm
the judgment of the district court.
I
Williams used peer-to-peer file software to post and share
more than 5,000 images of prepubescent children engaged in
19562 UNITED STATES v. WILLIAMS
sexually explicit conduct. FBI agents repeatedly accessed
these photos, eventually identified Williams as the owner of
the files, and executed a search warrant of Williams’s mobile
home. There, they discovered a number of suspicious items,
including x-rays depicting young boys’ genitalia, a guide for
interacting with boys, schedules for youth sporting events,
photos of young boys at swimming tournaments, and bags of
young boys’ bathing suits, underwear, and pajamas. Follow-
ing the search, Williams admitted that he used internet net-
works to view and share child pornography.
A grand jury subsequently indicted Williams for possession
of child pornography in violation of 18 U.S.C.
§ 2252A(a)(5)(B), distribution of child pornography in viola-
tion of 18 U.S.C. § 2252A(a)(2)(B), and advertising the distri-
bution of child pornography in violation of 18 U.S.C.
§ 2251(d)(1)(A). Williams filed a motion to dismiss the
advertising to distribute child pornography charges, arguing
that the statute only applies to individuals who either adver-
tise to produce child pornography or advertise child pornogra-
phy that they actually produced. The district court denied the
motion. Williams then entered a conditional guilty plea, pre-
serving his right to appeal the district court’s denial of his
motion to dismiss. In exchange for the guilty plea, the govern-
ment dismissed the remaining charges against Williams. This
timely appeal followed.
II
The sole issue is whether 18 U.S.C. § 2251(d)(1)(A)
requires an individual to personally produce the sexually
explicit visual depictions of minors that he advertises for dis-
tribution.
A
In statutory construction, our starting point is the plain lan-
guage of the statute. Children’s Hosp. & Health Ctr. v.
UNITED STATES v. WILLIAMS 19563
Belshe, 188 F.3d 1090, 1096 (9th Cir. 1999). “[W]e examine
not only the specific provision at issue, but also the structure
of the statute as a whole, including its object and policy.” Id.
If the plain meaning of the statute is unambiguous, that mean-
ing is controlling and we need not examine legislative history
as an aide to interpretation unless “the legislative history
clearly indicates that Congress meant something other than
what it said.” Carson Harbor Vill., Ltd. v. Unocal Corp., 270
F.3d 863, 877 (9th Cir. 2001) (en banc) (internal quotation
marks and citations omitted). If the statutory language is
ambiguous, then we consult legislative history. United States
v. Daas, 198 F.3d 1167, 1174 (9th Cir. 1999).
[1] The plain language of § 2251(d)(1)(A)1 answers the
question before us: There is no requirement that a defendant
1
The statute provides in pertinent part:
(1) Any person who, in a circumstance described in paragraph
(2), knowingly makes, prints, or publishes, or causes to be made,
printed, or published, any notice or advertisement seeking or
offering —
(A) to receive, exchange, buy, produce, display, distribute, or
reproduce, any visual depiction, if the production of such
visual depiction involves the use of a minor engaging in sex-
ually explicit conduct and such visual depiction is of such
conduct; or
(B) participation in any act of sexually explicit conduct by
or with any minor for the purpose of producing a visual
depiction of such conduct
shall be punished as provided in subsection (e).
(2) The circumstance referred to in paragraph (1) is that —
(A) such person knows or has reason to know that such
notice or advertisement will be transported using any means
or facility of interstate or foreign commerce . . . by any
means including by computer or mailed; or
(B) such notice or advertisement is transported using any
means or facility of interstate or foreign commerce . . . by
any means including by computer or mailed.
19564 UNITED STATES v. WILLIAMS
personally produce child pornography in order for criminal
liability to attach. The statute criminalizes multiple acts aris-
ing from the advertisement of child pornography. Among
these acts are the production and the distribution of child por-
nography. Nothing in the statute suggests that an individual
must commit both of these acts in order to be culpable.
Rather, § 2251(d)(1)(A) applies so long as a defendant know-
ingly advertises “any visual depiction” of child pornography.
To require personal production as a predicate for liability
would be to “insert phrases and concepts into the statute that
simply are not there.” Gruntz v. Cnty. of Los Angeles (In re
Gruntz), 202 F.3d 1074, 1085 (9th Cir. 2000).
[2] Our sister circuits have reached the same conclusion.
The Second Circuit, the Third Circuit, and the Eighth Circuit
have all upheld convictions against defendants who advertised
the distribution of child pornography, but did not personally
produce any sexually explicit images. See United States v.
Christie, 624 F.3d 558 (3d Cir. 2010) (affirming conviction of
a defendant under § 2251(d)(1)(A) for running a website that
allowed file sharing of child pornography even though no per-
sonal production involved); United States v. Sewell, 513 F.3d
820 (8th Cir. 2008) (upholding conviction of a defendant that
had used a file-sharing network to publish a notice to distrib-
ute child pornography); United States v. Rowe, 414 F.3d 271
(2d Cir. 2005) (concluding chat-room posting sufficient to
satisfy elements of statute). Additionally, the Tenth Circuit, in
United States v. Shaffer, upheld a conviction where it found
the defendant had distributed child pornography by down-
loading pornographic images from a peer-to-peer computer
network and storing them in a shared folder on his computer
accessible by other users of the network. 472 F.3d 1219 (10th
Cir. 2007).
[3] In sum, the plain language of the statute and interpreta-
tions by our sister circuits lead to the conclusion that personal
production is not an element of the crime.
UNITED STATES v. WILLIAMS 19565
B
[4] Williams’s primary argument to the contrary is
founded on verb tense. He argues that, because
§ 2251(d)(1)(A) refers to an offer that “involves” the use of
a minor, rather than “involved” the use of a minor, Congress
intended to insert a personal production requirement into the
statute. Williams therefore argues that this statute does not
apply to him since he advertised child pornography previously
produced by another.
First, in context, the statute criminalizes the “production”
of a “visual depiction” that involves a minor. No temporal
limitation is contained in the “production” of the “visual
depiction” involving minors, and the fact the statute criminal-
izes the “reproduction” of the “visual depiction” implies that
the production may have already occurred.
[5] In addition, the definition of “child pornography” in
§ 2256(8) of Chapter 110 implies that § 2251(d)(1)(A) should
apply to past, present, and future acts. Specifically,
§ 2256(8)(A) defines “child pornography” as being a sexually
explicit visual depiction that involves the use of a minor.2
Many images of child pornography cannot be possessed, dis-
tributed, or advertised until a visual depiction that involved
minors is actually produced. Thus, construing “involves” as
applying only to the present or future would diminish author-
ity to enforce many of the chapter’s statutes. See, e.g.,
§ 2252A(a)(3)(A) (criminalizing the reproduction of existing
2
Section 2256(8), in full, reads: “ ‘child pornography’ means any visual
depiction . . . of sexually explicit conduct, where— (A) the production of
such visual depiction involves the use of a minor engaging in sexually
explicit conduct; (B) such visual depiction is a digital image . . . that is,
or is indistinguishable from, that of a minor engaging in sexually explicit
conduct; or (C) such visual depiction has been created, adapted, or modi-
fied to appear that an identifiable minor is engaging in sexually explicit
conduct.”
19566 UNITED STATES v. WILLIAMS
child pornography). Congress could not have intended this
result.
[6] Further, statutes similar to § 2251(d)(1)(A) in Chapter
110 use the present tense to refer to acts that have been per-
formed, are being performed, or will be performed. Section
2252(a)(2)(A), for example, punishes any person who “know-
ingly receives . . . any visual depiction . . . that has been
mailed . . . [in interstate commerce] . . . if the producing of
such visual depiction involves the use of a minor engaging in
sexually explicit conduct.” (emphasis added). Subsections
2252(a)(1)(A), (a)(2)(B), (a)(3)(B), and (a)(4)(B), all use the
same phrase to criminalize behavior occurring in the past,
present, and future. But cf. United States v. Speelman, 431
F.3d 1226, 1232 (9th Cir. 2005) (construing § 2252(a) to be
“unconstitutional as applied to the simple intrastate posses-
sion of child pornography”).
In support of his thesis, Williams relies on Carr v. United
States, ___ U.S. __, 130 S.Ct. 2229 (2010). Carr held that “a
statute’s ‘undeviating use of the present tense’ is a ‘striking
indicator’ of its ‘prospective orientation.’ ” Id. at 2231 (quot-
ing Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found.,
Inc., 484 U.S. 49, 59 (1987)). However, Carr is inapplicable
here. Carr interpreted the retroactive reach of a statute, not
the temporal application of statutory text in an enacted statute.
See id. at 2236 (determining that a statute’s use of the present
tense, rather than the past or present perfect, “reinforces the
conclusion that preenactment [conduct] falls outside the stat-
ute’s compass”) (emphasis added)). More relevant for our
purposes is Coal. for Clean Air v. So. California Edison Co.,
which acknowledges “[t]he present tense is commonly used to
refer to past, present, and future all at the same time.” 971
F.2d 219, 225 (9th Cir. 1992). That construction is more con-
sistent with the statute’s reference to “any visual depiction.”
[7] Williams also argues that the purpose of § 2251 as a
whole is to prohibit the production of visual depictions utiliz-
UNITED STATES v. WILLIAMS 19567
ing minors to engage in sexually explicit activity. This
cramped construction is not supported by the text. Section
2251 is better understood as a statute prohibiting the exploita-
tion of children, not merely the production of child pornogra-
phy. In addition to subsection (d), the Act applies to any
person who
(a) “persuades” or “induces” a minor to engage in
“any sexually explicit conduct for the purpose of
producing any visual depiction of such conduct;”
(b) is a parent or guardian that “knowingly” permits
a minor to engage in “sexually explicit conduct for
the purpose of producing” a visual depiction of such
conduct; or
(c) is involved with the trafficking of child pornogra-
phy into the U.S.
[8] Williams argues that all these provisions require some
direct involvement with minors, and if we construe
§ 2251(d)(1)(A) not to require personal production, the sub-
section will be inconsistent with the rest of the statute. How-
ever, the presence of the conjunctive “or” means that each
subsection in § 2251 may be treated as a separate and distinct
criminal offense. See Azure v. Morton, 514 F.2d 897, 900 (9th
Cir. 1975). Accordingly, just because some subsections in
§ 2251 require that a defendant be directly involved in the
production of child pornography, does not mean that all of the
subsections in the statute contain this requirement. Indeed,
§ 2251(b) makes it a crime for parents and legal guardians to
knowingly permit a minor in their care to engage in the pro-
duction of child pornography. Nothing in the subsection
requires that the parents or legal guardians personally partici-
pate in the production enterprise.
Further, § 2251(d)(1)(B) cannot be reconciled with Wil-
liams’s interpretation. The subsection criminalizes the “partic-
19568 UNITED STATES v. WILLIAMS
ipation in any act of sexually explicit conduct by or with any
minor for the purpose of producing a visual depiction of such
conduct.” This subsection demonstrates how Congress com-
municates its intent when it wants to require a personal pro-
duction element for conviction. Moreover, construing both
subsections (a) and (b) to require personal production might
render one of the two subsections superfluous and would thus
violate an important rule of statutory construction — that
every word and clause in a statute be given effect. See Hibbs
v. Winn, 542 U.S. 88, 101 (2004) (explaining “[a] statute
should be construed so that effect is given to all its provisions,
so that no part will be inoperative or superfluous, void or
insignificant”).
Even assuming, arguendo, that there was ambiguity in the
statutory text, Williams’s theory is not supported by the stat-
ute’s legislative history. Section 2251, as originally enacted,
did not include the advertising provision in question. Con-
gress added this provision several years later with the intent
to “ban the production and use of advertisements for child
pornography.” H.R. Rep. No. 99-910, at 1 (1986), reprinted
in 1986 U.S.C.C.A.N. 5952, 5952.
Williams finally contends that he was charged under the
wrong statute. He argues that he should have been charged
under § 2252A. Section 2252A and § 2251(d)(1)(A) do have
some overlapping elements. But the existence of common ele-
ments in other criminal statutes does not limit the scope of the
statute at issue. See United States v. LaBinia, 614 F.2d 1207,
1209 (9th Cir. 1980).
III
[9] In sum, the plain language of § 2251(d)(1)(A) does not
contain a personal production requirement, and nothing in the
tense of the wording evidences a congressional intent to insert
such an element. The district court properly denied Wil-
liams’s motion to dismiss the indictment.
AFFIRMED.