United States v. Sturm

FILED
United States Court of Appeals
Tenth Circuit

March 13, 2012
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. No. 09-1386
KENNETH DEAN STURM,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 1:06-CR-00342-LTB-1)

Kathleen A. Lord, Assistant Federal Public Defender (Raymond P. Moore,
Federal Public Defender, with her on the brief), Denver, Colorado, for Appellant.

Martha A. Paluch, Assistant United States Attorney (David M. Gaouette, United
States Attorney, Patricia W. Davies, Assistant United States Attorney, and Judith
A. Smith, Assistant United States Attorney, with her on the brief), Denver,
Colorado, for Appellee.

Before MURPHY, BALDOCK, and BRORBY, Circuit Judges.

MURPHY, Circuit Judge.
I. INTRODUCTION

Kenneth Dean Sturm seeks reversal of his convictions under 18 U.S.C.

§ 2252A(a)(5)(B) and (a)(2)(B) for both possession and receipt of child

pornography. Sturm challenges certain jury instructions and the admission,

pursuant to Fed. R. Evid. 414, of his prior conviction for a similar offense. Sturm

also contends his convictions for both “possession” and “receipt” of child

pornography violate the Double Jeopardy Clause of the United States

Constitution.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court holds as

follows: (1) it is not necessary to show an intent to distribute to support a

conviction under 18 U.S.C. § 2252A(a)(2)(B) for “knowing receipt” of child

pornography; (2) a prior state-law conviction may constitute an “offense of child

molestation” admissible under Fed. R. Evid. 414(d)(2) notwithstanding the

absence of a connection to interstate commerce; and (3) the Double Jeopardy

Clause does not prohibit convictions for both possession and receipt of child

pornography where separate and distinct conduct supports each charge. For these

reasons, this court AFFIRMS Sturm’s convictions. 1

II. BACKGROUND

Immigration and Customs Enforcement agents first became aware of Sturm

1
Sturm’s Motion to Permit Supplemental Briefing is denied.

-2-
during an investigation into a child pornography website. Search warrants

executed on the website’s servers revealed Sturm had paid $79.99 for a one-

month subscription and used that subscription to access approximately 6500

images. Based on this information, a warrant to search Sturm’s home was

obtained and executed. This warrant ultimately led to the discovery of numerous

images of child pornography on a hard drive in Sturm’s possession.

The government obtained an indictment charging Sturm with (1) knowing

possession of three specific images of child pornography between January 1,

2005, and May 5, 2006, in violation of 18 U.S.C. § 2252A(a)(5)(B); and (2)

knowing receipt of materials containing images of child pornography on June 8,

2005, in violation of 18 U.S.C. § 2252A(a)(2)(B). At trial, Sturm did not dispute

he had searched for and viewed child pornography on the internet. At the time,

such conduct was not a federal crime. 2 Instead, Sturm sought to highlight

weaknesses in the government’s proof of the interstate commerce aspect of the

charges, and its proof that he had knowingly downloaded the images of child

pornography found on his computer. Following a nine-day trial, the jury returned

guilty verdicts on both counts.

2
Section 2252A(a)(5) has since been amended. See 18 U.S.C.
§ 2252A(a)(5); Pub. L. No. 110-358, Title II, § 203(b), 122 Stat. 4003
(criminalizing the knowing access of child pornography with an intent to view).

-3-
III. DISCUSSION

Sturm appeals his convictions on three primary grounds: the propriety of

certain jury instructions, the admission of his prior Ohio conviction, and a Double

Jeopardy Clause challenge to his convictions for both possession and receipt of

child pornography.

A. Jury Instructions

1. Possession & Receipt

In enacting § 2252A, Congress made it a crime both to knowingly receive

child pornography and to knowingly possess child pornography. The statute

provides:

(a) Any person who — . . .

(1) knowingly mails, or transports or ships . . . including by
computer, any child pornography;
(2) knowingly receives or distributes — . . .
(B) any material that contains child pornography that has
been mailed, or shipped or transported in interstate or
foreign commerce by any means, including by computer;
...
(3) knowingly —
(A) reproduces any child pornography for distribution . . .;
or
(B) advertises, promotes, presents, distributes, or solicits . . .
any [child pornography]
(4) either — . . .
(B) knowingly sells or possesses with the intent to sell any
child pornography . . .;
(5) either — . . .
(B) knowingly possesses any book, magazine, periodical,
film, videotape, computer disk, or any other material
that contains an image of child pornography that has

-4-
 been mailed, or shipped or transported in interstate or
foreign commerce by any means, including by computer;
or . . .
(6) knowingly distributes . . . to a minor [child pornography] . . .
Shall be punished as provided in subsection (b).

18 U.S.C. § 2252A(a) (2006) (emphasis added).

The words “receives” and “possesses” are not defined in the statute, and the

district court gave the words their everyday meanings. See United States v.

Universal C.I.T. Credit Corp., 344 U.S. 218, 221 (1952) (holding undefined terms

“should be given, insofar as the language permits, a commonsensical meaning”);

United States v. Bass, 411 F.3d 1198, 1201 (10th Cir. 2005) (noting § 2252A

“does not define possession, but in interpreting the term, we are guided by its

ordinary, everyday meaning” (quotation omitted)). It therefore instructed the jury

that “[p]ossession as it pertains to computer images can include proof that the

defendant had control over the images in that he could copy them, review them,

move them, enlarge them, print them or delete them.” The district court did not

provide any clarification of the meaning of “receipt,” but instructed that “to

convict [Sturm] of Possession of Child Pornography, the government does not

have to prove [that he] knowingly received Child Pornography.” Finally, the

district court advised the jury that “[t]he mere act of observing child pornography,

without possession or receipt, is not illegal.”

Sturm contends these instructions left the jury “free to adopt its own

definitions of possession and receipt,” and failed to instruct the jury that it could

-5-
not convict him of “receiving” child pornography simply because he searched for

it and viewed it on his computer. In particular, Sturm asserts the terms “receive”

and “possess” are indistinguishably similar in their common usage. To

differentiate the two, he unsuccessfully proposed a jury instruction that “‘receive’

means to acquire or obtain possession of material . . . with intent to distribute

those images.” While § 2252A(a)(2) does not expressly include an intent to

distribute requirement, Sturm asserts that a scrivener’s error is to blame. Sturm

notes that violations of § 2252A(a)(1), (2), (3), (4), and (6) each involve, inter

alia, distribution of child pornography and carry mandatory minimum sentences

of five years and maximum sentences of twenty years. See 18 U.S.C.

§ 2252A(b)(1). A violation of § 2252A(a)(5), however, does not involve

distribution, carries no mandatory minimum sentence, and has a maximum

sentence of ten years. See id. § 2252A(b)(2). Sturm argues this difference

suggests Congress meant to interdict receipt only with intent to distribute, thereby

distinguishing receipt from possession.

Sturm claims that prior versions of § 2252A provide additional support for

his “scrivener’s error” theory. Congress first criminalized the receipt of child

pornography in the Protection of Children Against Sexual Exploitation Act of

1977, which forbade the “knowing[] recei[pt] for the purpose of sale or

distribution for sale” of child pornography. Pub. L. No. 95-225, § 2252(a)(2), 92

Stat. 8 (emphasis added). The italicized language was removed from the statute

-6-
by the Child Protection Act of 1984, Pub. L. No. 98-292, 98 Stat. 204, based upon

Congress’s determination that “much if not most child pornography material is

distributed through an underground network of pedophiles who exchange the

material on a non-commercial basis, and thus no sale is involved.” H.R. Rep. 99-

910, at 4 (1986). Sturm argues this history reflects Congress’s intention to

eliminate only the commercial purpose requirement (i.e. “for sale”) from the

statute, and the simultaneous elimination of the intent-to-distribute language was

accidental.

This court reviews issues of statutory construction de novo. Been v. O.K.

Indus., 495 F.3d 1217, 1227 (10th Cir. 2007). In so doing, “we begin with the

language employed by Congress, and we read the words of the statute in their

context and with a view to their place in the overall statutory scheme.” Id.

(quotation omitted). Courts must “ordinarily resist reading words or elements

into a statute that do not appear on its face.” Bates v. United States, 522 U.S. 23,

29 (1997) (declining to read an “intent to defraud” requirement into 20 U.S.C.

§ 1097(a)). Sturm’s theory, however, would require exactly that, i.e., addition of

the phrase “with intent to distribute” to § 2252A(a)(2).

There is no cause to depart from the general rule in this case. First, “where

Congress includes particular language in one section of a statute but omits it in

another section of the same Act, it is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion or exclusion.” Id. at 29-30

-7-
(quotation omitted). With this principle in mind, we note Congress has prohibited

the knowing reproduction of child pornography “for distribution” in

§ 2252A(a)(3), and § 2252A(a)(4) prohibits the possession of child pornography

“with intent to sell.” The absence of any “intent to distribute” requirement from

§ 2252A(a)(2) is therefore presumed intentional.

That mere receipt of child pornography is punished harshly is also

consistent with Congress’s view that such conduct is as culpable as production

and distribution. In 1996, Congress enacted § 2252A and provided separate

criminal prohibitions on receipt and possession of child pornography. In doing

so, it made findings about the harms flowing from such materials. See Pub. L.

No. 104-208, Div. A., Title I, § 101(a), 110 Stat. 3009-26. First, Congress

recognized the harm inflicted upon children used in creating such pornography:

(1) the use of children in the production of sexually explicit
material . . . is a form of sexual abuse which can result in
physical or psychological harm, or both, to the children
involved;

(2) where children are used in its production, child pornography
permanently records the victim’s abuse, and its continued
existence causes the child victims of sexual abuse continuing
harm by haunting those children in future years.

Id. Violations of § 2252A involving distribution were thus punished harshly.

The creation and distribution of child pornography, however, is dependent on a

market for such images. A person who receives these images “furthers the market

. . . whether or not the person retains them. Indeed, even a person who receives

-8-
the images and never gets around to viewing them still causes these harms.”

United States v. Davenport, 519 F.3d 940, 949 (9th Cir. 2008) (Graber, J.,

dissenting); see also United States. v. Ellison, 113 F.3d 77, 81 (7th Cir. 1997)

(noting that “even the receipt of [child pornography] for personal use, without

more, keeps producers and distributors of this filth in business”). As a

consequence, it is not remarkable that receipt of child pornography carries

sanctions similar to those imposed upon distribution offenses.

Congress identified a different and distinct set of harms flowing from the

“possession” of child pornography:

(3) child pornography is often used as part of a method of
seducing other children into sexual activity; a child who is
reluctant to engage in sexual activity with an adult, or to pose
for sexually explicit photographs, can sometimes be convinced
by viewing depictions of other children “having fun”
participating in such activity;

(4) child pornography is often used by pedophiles and child sexual
abusers to stimulate and whet their own sexual appetites, and
as a model for sexual acting out with children; such use of
child pornography can desensitize the viewer to the pathology
of sexual abuse or exploitation of children, so that it can
become acceptable to and even preferred by the viewer.

Pub. L. No. 104-208, Div. A., Title I, § 101(a), 110 Stat. 3009-26. Because the

harms flowing from possession of child pornography differ from those associated

with distribution and receipt, differentiating levels of punishment should not be

unexpected. Moreover, the nature of knowing receipt and knowing possession of

child pornography further distinguishes the two. It is possible to unwittingly

-9-
receive child pornography and then knowingly continue in possession of it;

likewise, one can knowingly receive child pornography and then cease possession.

See 18 U.S.C. § 2252A(d) (making it an affirmative defense to a charge of

possession of child pornography that the defendant possessed less than three

images and promptly destroyed such images or reported them to a law

enforcement agency). For these reasons, consistent with other circuits, we hold

that an intent to distribute is not required for a receipt-based conviction under

§ 2252A(a)(2). See United States v. Olander, 572 F.3d 764, 770 (9th Cir. 2009);

United States v. Irving, 554 F.3d 64, 74 (2d Cir. 2009); United States v. Watzman,

486 F.3d 1004, 1009-10 (7th Cir. 2007). As a consequence, the district court

properly rejected Sturm’s proposed instruction and the instructions as a whole

accurately state the applicable law.

2. Theory of the Defense

Sturm’s primary defense at trial was that he had not knowingly possessed

or received child pornography even though he had searched for and viewed such

materials. At the time of the indictment, seeking and viewing child pornography,

without more, did not constitute a violation of § 2252A. 3 At Sturm’s request, the

district court provided an instruction highlighting the theory of the defense: “the

mere act of observing child pornography, without possession or receipt, is not

3
See supra note 2.

-10-
illegal.” Sturm now contends, for the first time, that the district court’s failure to

provide an instruction defining the term “receives” rendered the foregoing

instruction ineffective. He elaborates that, because of the ambiguity surrounding

the term “receives,” the jury might have concluded that searching for and viewing

child pornography on the internet constituted receipt and was illegal. Sturm

therefore argues he was entitled to an instruction informing the jury that

“searching for child pornography and looking at it was not a crime.”

Sturm did not object to the theory of defense instruction given at trial, and

proffered the challenged instruction himself. His attack on the sufficiency of this

instruction is therefore barred by the invited-error doctrine, which precludes a

party from arguing that the district court erred in adopting a proposition that the

party had urged the district court to adopt. See, e.g., United States v. Visinaiz,

428 F.3d 1300, 1310-11 (10th Cir. 2005) (stating that because defense counsel

had proffered the allegedly erroneous instruction, “a challenge thereto is

precluded as invited error”).

We likewise reject Sturm’s contention that the jury was not properly

instructed as to the application of the scienter requirement of § 2252A(a)(2). The

jury was instructed that conviction for knowing receipt of child pornography

required proof that “on or about June 8, 2005, [Sturm] knowingly received . . .

material that contained an image or images of child pornography” and that Sturm

“knew that the image or images contained or constituted child pornography.” The

-11-
jury was told the term “knowingly” meant Sturm “was conscious and aware of his

actions, realized what he was doing or what was happening around him, and did

not act because of ignorance, mistake, or accident.” Sturm now argues, for the

first time, that these instructions were deficient because they failed to specify that

conviction required proof Sturm knew the materials contained child pornography

before he received them.

This court reviews a jury instruction de novo when an objection has been

made at trial, and for plain error when no objection has been made. United States

v. Fabiano, 169 F.3d 1299, 1302 (10th Cir. 1999). Because Sturm did not raise

his scienter argument below, review is for plain error. Under this standard, Sturm

must show an error, that is plain, and that affected his substantial rights. Id. at

1303. If these three requirements are met, this court can exercise its discretion to

correct the error if it “seriously affects the fairness, integrity or public reputation

of judicial proceedings.” Id. (quotation omitted).

The challenged instructions are not erroneous. They comport with the

requirements set forth by the Supreme Court in United States v. X-Citement

Video, Inc., because they specify that the term “knowingly” applies to both the

receipt component and the “contains child pornography” component. 513 U.S.

64, 78 (1994). The instructions further specify that Sturm’s guilt could not rest

upon his unwitting, accidental, or mistaken receipt of the child pornography.

Nowhere do the instructions suggest that after-acquired knowledge of the content

-12-
of the materials would be sufficient to convict Sturm under § 2252A(a)(2), and

we harbor no doubt that the jury was fairly guided in its deliberations. Indeed,

the jury instructions closely resemble those upheld against a similar challenge in

Fabiano. See 169 F.3d at 1304-05.

3. Interstate Commerce

Sturm next challenges the district court’s instructions regarding the

interstate commerce aspect of the charges. The jury was instructed the

government “must prove beyond a reasonable doubt” that the “visual depiction, at

any time, traveled or moved between any place in a state and any place outside of

that state, or from any place in one country and any place outside of that

country.” Consistent with his objections in the district court, Sturm asserts these

instructions erroneously failed to clarify the government must prove the specific

image at issue moved between states, and the district court erred in refusing to

provide an instruction to that effect. This court has previously concluded there

was no error in the district court’s instructions regarding the interstate commerce

requirement. United States v. Sturm, Nos. 09-1386, -5022, 2012 WL 593128, at

*9 (10th Cir. Feb. 24, 2012) (en banc).

B. Evidence of Sturm’s Prior Conviction

In 2003, Sturm pleaded guilty to, and was convicted of, pandering sexually

oriented matter involving a minor, in violation of Ohio Rev. Code

§ 2907.322(A)(5). The Ohio statute provides that

-13-
 [n]o person, with knowledge of the character of the material or
performance involved, shall . . . [k]nowingly solicit, receive,
purchase, exchange, or control any material that shows a minor
participating or engaging in sexual activity, masturbation, or
bestiality.

The government indicated its intention to use this prior conviction as evidence of

Sturm’s propensity to commit the crimes charged. The district court determined

Sturm’s prior conviction was admissible under Federal Rule of Evidence 414, and

that its probative value was not substantially outweighed by the risk of unfair

prejudice. United States v. Sturm, 590 F. Supp. 2d 1321, 1329-30 (D. Colo.

2008). Sturm appeals the district court’s decision on several grounds.

1. Admissibility under Rule 414

The rules of evidence generally prohibit “the admission of evidence for the

purpose of showing a defendant’s propensity to commit bad acts.” United States

v. Benally, 500 F.3d 1085, 1089 (10th Cir. 2007); see Fed. R. Evid. 404(b). Rule

414, however, provides an exception to this general rule, whereby:

[i]n 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.

Fed. R. Evid. 414(a). For a prior conviction to be admissible under Rule 414, the

trial court must determine that: (I) the defendant is accused of an offense of child

molestation, (ii) the evidence proffered is evidence of the defendant’s commission

of another offense of child molestation, and (iii) the evidence is relevant. See

-14-
Benally, 500 F.3d at 1090. The district court concluded each of these

requirements had been met. See Sturm, 590 F. Supp. 2d at 1326-29. Sturm

challenges only the district court’s resolution of the second prong.

Rule 414 defines “offense of child molestation,” in part, to mean a “crime

under Federal law or the laws of a State . . . that involved . . . any conduct

proscribed by chapter 110 of title 18, United States Code.” Fed. R. Evid.

414(d)(2). Relying on this aspect of the definition, the district court determined

the conduct underlying Sturm’s Ohio conviction for Pandering Sexually

Orientated Matter Involving a Minor was an “offense of child molestation”

because such conduct also constituted knowing possession of child pornography

under 18 U.S.C. § 2252A(a)(5). Sturm, 590 F. Supp. 2d at 1326-27. Sturm

challenges this determination on the ground that his conviction under the Ohio

pandering statute did not involve “conduct proscribed by chapter 110 of title 18.”

He first contends that, unlike the federal statute, the Ohio statute contains

no requirement that the child pornography travel in interstate commerce. The

district court, however, concluded the interstate commerce requirement of

§ 2252A was “purely a prerequisite for federal jurisdiction [rather than] ‘conduct’

for the purpose of establishing whether a state criminal conviction is an offense of

child molestation pursuant to Fed. R. Evid. 414.” Sturm, 590 F. Supp. 2d at 1326.

-15-
Because the determination of this issue turns on an interpretation of the Federal

Rules of Evidence, this court’s review is de novo. See United States v. Batton,

602 F.3d 1191, 1196 (10th Cir. 2010).

The district court’s conclusion comports with precedent and common sense.

This court has previously concluded that the interstate commerce requirements of

§§ 2252 and 2252A are jurisdictional. Sturm, 2012 WL 593128, at *1; see

generally X-Citement Video, 513 U.S. 64, 78 (extending the “knowingly” scienter

requirement to the age of performers and sexually explicit nature of the material,

but not to the interstate commerce requirement). More importantly, Congress has

authorized the use of prior crimes in child molestation cases because “a history of

similar acts tends to be exceptionally probative . . . [of] an unusual disposition of

the defendant—a sexual or sado-sexual interest in children—that simply does not

exist in ordinary people.” 140 Cong. Rec. H8968-01, H8991 (daily ed. Aug. 21,

1994) (statement of Rep. Molinari). With the purpose of Rule 414 evidence so

conceived, the interstate character of a defendant’s prior crimes has no bearing on

the evidence’s probative value.

Rule 414 defines “offense of child molestation” to include crimes under

state law involving conduct prohibited by chapter 110 of title 18. It would be

unusual for a state criminal statute to contain an interstate commerce requirement.

Adoption of the construction Sturm urges, then, would effectively gut the Rule of

much of its reach for no discernable reason. Nothing in the Rule or legislative

-16-
history indicates that Congress considered the interstate aspect of child

pornography crimes to be relevant in this context, and Rule 414(d)(3) – (6)

describes other conduct constituting an “offense of child molestation” that plainly

requires no interstate element. Thus, conduct supporting a conviction under state

law may constitute an “offense of child molestation” for Rule 414(d)(2) purposes,

even though the state law offense did not involve child pornography traveling

across state lines.

Sturm next contends the Ohio pandering statute under which he was

convicted prohibits a broader range of activity than federal law, such that the

conduct supporting his state law conviction is not necessarily proscribed by

chapter 110 of title 18. Specifically, Ohio law criminalizes the knowing

possession of “any material that shows a minor participating or engaging in

sexual activity, masturbation or bestiality.” Ohio Rev. Code § 2907.322(A)(5).

“Sexual activity” is defined to include both “sexual conduct” or “sexual contact,”

with the latter term encompassing “any touching of an erogenous zone of another,

including without limitation the thigh, genitals, buttock, pubic region, or, if the

person is a female, a breast, for the purpose of sexually arousing or gratifying

either person.” Ohio Rev. Code § 2907.01(B), (C). Federal law, by contrast,

does not prohibit the knowing possession of images depicting children touching,

for example, the thigh of another. See 18 U.S.C. § 2256(2), (8) (defining “child

pornography”). Thus, Sturm suggests, it is possible his pandering conviction was

-17-
based upon conduct not proscribed by chapter 110 of title 18, and would

consequently not constitute an “offense of child molestation” as required by Rule

414.

Because this challenge was not raised in the trial court, this court reviews

only for plain error. See United States v. Penn, 601 F.3d 1007, 1009 (10th Cir.

2010). Under plain error review, Sturm must establish the district court’s

admission of his prior Ohio conviction as an “offense of child molestation” under

Rule 414 was (1) “error, (2) that is plain, (3) that affects substantial rights, and

(4) that seriously affects the fairness, integrity or public reputation of judicial

proceedings.” Id. His challenge cannot satisfy the first or third prongs.

Had Sturm raised his current objection below, the government would have

borne the burden of producing appropriate evidence to clarify the nature of

Sturm’s Ohio crime. He failed to do so and, consequently, neither the

government nor the district court had occasion to seek production of evidence

adducing the precise conduct underlying Sturm’s prior conviction. The record’s

shortcomings in this regard prevent the court from now determining whether the

Ohio conviction was properly categorized as an “offense of child molestation.”

As a result, Sturm has failed to show the district court erred when it admitted the

Ohio conviction.

Sturm has likewise failed to satisfy the third prong of plain error review.

To satisfy this prong, Sturm must demonstrate that any error on the part of the

-18-
district court affected the outcome of the proceedings. United States v. Zubia-

Torres, 550 F.3d 1202, 1209 (10th Cir. 2008). In this case, Sturm has never

alleged the conduct underlying his Ohio conviction would not amount to a

violation of § 2252A. Instead, he has simply asserted that because Ohio law is

broader than chapter 11 of title 18, it is possible his conviction is not admissible

under Rule 414. Absent an assertion of actual error on the part of the district

court, Sturm cannot demonstrate any effect on his substantial rights. United

States v. McBride, 633 F.3d 1229, 1233-34 (10th Cir. 2011).

Sturm’s final challenge attempts to show that the Ohio statute is again

broader than Rule 414 because the former defines “minor” to mean a person under

the age of eighteen while the latter provides that “child” means person below the

age of fourteen. Compare Ohio Rev. Code § 2907.01(M), with Fed. R. Evid.

414(d). Thus, Sturm contends, a prior crime can only constitute an “offense of

child molestation” for Rule 414 if it involved a child under the age of fourteen.

This argument is based on a gross misunderstanding of Rule 414(d)(2). That

subsection defines “offense of child molestation”—independent of the defined

term “child”—to mean “a crime under Federal law or the law of a State . . . that

involved . . . any conduct proscribed by chapter 110 of title 18, United States

Code.” The relevant age of the children victims under this definition, then, is

determined by reference to chapter 110 of title 18, which defines “minor” as any

person under the age of eighteen, precisely the same threshold as the Ohio statute.

-19-
See 18 U.S.C. § 2256(1). The district court thus correctly determined that

Sturm’s prior conviction satisfies the prerequisites for admissibility under Rule

414.

2. Enjady Balancing

Evidence of a prior offense of child molestation that satisfies Rule 414

must yet be evaluated under Rule 403. United States v. Meacham, 115 F.3d 1488,

1492 (10th Cir. 1997) (holding that Rule 403 applies to Rule 414 evidence). Rule

403 permits the exclusion of relevant evidence “if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue delay, waste of time,

or needless presentation of cumulative evidence.” Fed. R. Evid. 403. In the

context of prior crimes evidence, this court employs the following four-factor

analysis under Rule 403:

1) How clearly the prior act has been proved;
2) How probative the evidence is of the material fact it is
admitted to prove;
3) How seriously disputed the material fact is; and
4) Whether the government can avail itself of any less prejudicial
evidence.

United States v. Enjady, 134 F.3d 1427, 1433 (10th Cir. 1998) (setting forth Rule

403 test for Rule 413 evidence); Benally, 500 F.3d at 1090-91 (extending Enjady

to Rule 414 evidence). The exclusion of relevant evidence under the Enjady test

should be infrequent, reflecting Congress’s legislative judgment that evidence of

-20-
similar crimes should “normally” be admitted in child molestation cases. Enjady,

134 F.3d at 1433.

In balancing the probative value and prejudicial potential of Sturm’s Ohio

conviction, the district court concluded (1) the prior act had been clearly proved,

(2) the prior act was highly probative of Sturm’s propensity to receive and

possess child pornography in violation of § 2252A, (3) Sturm “does not challenge

the material fact of his prior conviction,” and (4) it was unclear whether allowing

Sturm to stipulate to his prior conviction would be less prejudicial than admission

of direct evidence. Sturm, 590 F. Supp. 2d at 1328-29. The district court further

concluded the probative value of Sturm’s guilty plea and conviction was not

substantially outweighed by the danger of unfair prejudice. Id. at 1329. Sturm

now takes issue with the district court’s analysis of the second, third and fourth

Enjady factors. 4 This court reviews the district court’s evidentiary rulings for

abuse of discretion. See Benally, 500 F.3d at 1089.

The second Enjady factor requires “Rule 414 evidence to be probative of

the material fact it is admitted to prove.” United States v. Mann, 193 F.3d 1172,

1174 (10th Cir. 1999). The district court determined “Sturm’s recent prior

conviction in Ohio is highly probative of the material fact regarding his

propensity to receive and possess child pornography as charged here.” Sturm, 590

4
Having pleaded guilty to the Ohio charges, Sturm does not dispute that the
first Enjady factor weighs in favor of admissibility.

-21-
F. Supp. 2d at 1328. Sturm disputes this determination, alleging his prior

conviction is probative only of his propensity “to be interested in and/or possess

child pornography,” rather than to commit each element of the crimes charged.

Conspicuously absent from Sturm’s argument, however, is any articulated reason

why the Ohio conviction’s probative value extends only so far. Rule 414

explicitly allows evidence of prior offenses of child molestation to be considered

“for its bearing on any matter to which it is relevant.” Fed. R. Evid. 414(a)

(emphasis added). This includes a defendant’s propensity to commit the acts

charged. See, e.g., Batton, 602 F.3d at 1198; Benally, 500 F.3d at 1092. In

determining that Sturm’s prior conviction was relevant to his propensity to

commit the crimes charged, the district court considered “the similarity of the

prior acts and the charged acts,” as well as “the time lapse between the other acts

and the charged acts.” The district court did not abuse its discretion in

concluding the Ohio conviction is probative of Sturm’s propensity to receive and

possess child pornography as charged.

Nor did the district court abuse its discretion in its treatment of the fourth

Enjady factor, which asks “whether the government can avail itself of any less

prejudicial evidence.” The government proposed that rather than admitting direct

evidence of Sturm’s prior conviction, a stipulation could be employed. Sturm’s

opposition did not propose any alternative, less prejudicial evidence. The district

court offered Sturm the option of choosing between the stipulation and direct

-22-
evidence of conviction, and Sturm declined. See Sturm, 590 F. Supp. 2d at

1329-30.

Repeating his contention that the prior conviction is probative only of his

interest in child pornography, Sturm now contends the government could have

availed itself of “a plethora” of other evidence, including his paid subscription to

a child-pornography website and the thousands of images of child pornography he

viewed through it. The government, however, presented the prior conviction for

the more focused purpose of demonstrating Sturm’s propensity to knowingly

commit all elements of the crimes charged. The only evidence of such propensity

proposed to the district court was the direct evidence of Sturm’s prior conviction

and a stipulation to the facts thereof. The district court’s analysis was therefore

proper.

The district court’s treatment of the third Enjady factor presents

complications. The third factor requires the district court to “evaluate the

seriousness of the dispute over the material fact the Rule 414 evidence is admitted

to prove.” Mann, 193 F.3d at 1174. The more seriously disputed the material

fact, the more heavily this factor weighs in favor of admissibility. See, e.g.,

Batton, 602 F.3d at 1198 (“Batton claimed at trial that he did none of the acts of

which J.D. accused him, making the 1995 conviction a crucial piece of evidence

to help the jury . . . .”). As discussed above, the government proffered the prior

conviction to prove the material fact of Sturm’s “propensity to receive and

-23-
possess child pornography as charged here.” Sturm, 590 F. Supp. 2d. at 1328.

Applied to the present case, the third Enjady factor thus asks “how seriously

disputed is Sturm’s propensity to knowingly receive and possess child

pornography as charged?” Sturm vigorously denied having any such propensity,

and this consequently weighs in favor of admitting the prior conviction. The

district court, however, inquired whether the parties seriously disputed the

propriety of Sturm’s prior conviction. Id. at 1329. Concluding that “Sturm’s

guilty plea and conviction in Ohio is not disputed at all,” the district court

determined the third factor weighed in favor of admission. The district court

therefore misconceived the question posed by the third Enjady factor.

This analytical misstep does not rise to the level of an abuse of discretion.

Under the applicable standard of review, we may not reverse the district court’s

evidentiary ruling if “it falls within the bounds of permissible choice in the

circumstances and is not arbitrary, capricious or whimsical.” United States v.

Smith, 534 F.3d 1211, 1218 (10th Cir. 2008). This court may, moreover, uphold a

district court’s evidentiary rulings on any ground supported by the record. See

Enjady, 134 F.3d at 1434. As discussed above, each of the Enjady factors weighs

in favor of admission of Sturm’s prior conviction. The district court was

therefore correct when it concluded “the probative value of the evidence of

[Sturm’s] prior guilty plea and conviction, under Ohio law, for receipt or

possession of child pornography is not substantially outweighed by the danger of

-24-
unfair prejudice.” Sturm, 590 F. Supp. 2d at 1329. Because the district court’s

decision to admit the evidence constitutes a permissible choice in the

circumstances, this court affirms.

3. Cautionary Instruction

After determining Sturm’s prior conviction was admissible, the district

court offered to provide a cautionary instruction to the jury regarding this

evidence. Sturm, 590 F. Supp. 2d at 1330. In Instruction No. 14, the jury was

ultimately instructed as follows:

You have been presented with evidence that, in 2003, the defendant
was convicted of “Pandering Sexually Oriented Matter Involving a
Minor.” This case was from Ohio and in Ohio “pandering” means
possession. You may consider this evidence for [its] bearing on any
matter to which it is relevant, including propensity to commit the
crimes charged . . . . You should consider this evidence just as you
consider other evidence in this trial, giving it as much weight as you
think it deserves.

(emphasis added). Sturm objected to the inclusion of the italicized language and

contends that the instruction improperly emphasized the most prejudicial possible

use of the Rule 414 evidence.

Evaluating Instruction No. 14 in context, the district court did not abuse its

discretion. As discussed above, Rule 414 evidence may be considered for its

bearing on any matter to which it is relevant, including the defendant’s

“propensity to commit . . . child molestation offenses, and assessment of the

probability or improbability that the defendant has been falsely or mistakenly

-25-
accused of such an offense.” 140 Cong. Rec. H8968-01, H8991 (daily ed. Aug.

21, 1994) (statement of Rep. Molinari). The instruction therefore did not misstate

the possible uses of the Rule 414 evidence available to the jury. See United

States v. McHorse, 179 F.3d 889, 903 (10th Cir. 1999) (“Rule 414(a) displaces

Fed. R. Evid. 404(b)’s restriction on propensity evidence and allows the

government to offer evidence of a defendant’s prior sexual misconduct for the

purpose of demonstrating the defendant’s propensity to commit the charged

offense.”).

Nor did Instruction No. 14 improperly emphasize these permissible uses. It

instead clarified for the jury the difference between the Rule 414 evidence and

other “prior acts” evidence, which are barred from use as propensity evidence

under Rule 404(b). Even assuming that confusion might arise from Instruction

No. 14 when considered in isolation, that possibility was eliminated by other

instructions. In Instruction No. 13, for example, the district court advised the jury

that “the fact that the defendant may have previously committed an act similar to

the one charged in this case does not mean that the defendant necessarily

committed the act charged in this case.” The jury was also instructed that “[t]he

defendant is not on trial for any act, conduct, or crime not charged in the

indictment,” and was repeatedly reminded that the government bears the burden

of proving each element of the charged offenses. These clarifying instructions

remove any possible concern that the jury was improperly instructed. See Batton,

-26-
602 F.3d at 1199-1200 (upholding similar propensity evidence instructions

tempered by additional, clarifying instructions).

C. Double Jeopardy

Mr. Sturm’s final argument on appeal is that his conviction for both

knowing possession and knowing receipt of child pornography violated his rights

under the Fifth Amendment’s Double Jeopardy Clause. The Double Jeopardy

Clause protects a defendant against “cumulative punishments for convictions on

the same offense.” Ohio v. Johnson, 467 U.S. 493, 500 (1984). The long-

standing touchstone of double jeopardy jurisprudence is that “where the same act

or transaction constitutes a violation of two distinct statutory provisions, the test

to be applied to determine whether there are two offenses or only one, is whether

each provision requires proof of a fact which the other does not.” Blockburger v.

United States, 284 U.S. 299, 304 (1932). Reasoning that an individual who

receives child pornography necessarily possesses it, Sturm contends that knowing

possession under § 2252A(a)(5)(B) is a lesser included offense of knowing receipt

under § 2252A(a)(2), and that his conviction under both statutes for one act

cannot stand.

Sturm’s argument rests on the mistaken premise that the same criminal

conduct supports both of his convictions. Sturm was accused of two distinct sets

of conduct: Count One of the indictment charged him with knowing possessing of

three specific images of child pornography between January 1, 2005, and May 5,

-27-
2006; Count Two charged him with knowing receipt of child pornography on June

8, 2005. The evidence at trial established Sturm knowingly possessed digital

images of pornography entitled “26.bmp,” “8.bmprwet.bmp,” and

“1.bmpwrt.bmp.,” and knowingly received digital images of pornography entitled

“14[1].jpg,” “14.jpg,” “14c.jpg,” and 14cvj.jpg.” The jury was specifically

instructed as to which images were associated with which count, and found Sturm

guilty on both counts. Sturm does not argue that any of the images he was

convicted of possessing is identical to all the images he was convicted of

receiving, or vice versa. Thus, Sturm’s convictions and sentences were based on

two distinct acts, occurring on two different dates, and proscribed by two

different statutes. Under such circumstances, the Double Jeopardy Clause is not

implicated. 5

Sturm seeks to avoid this conclusion by urging the court to treat his

computer’s hard drive as the “child pornography” he was convicted of receiving

and possessing. He argues such an approach makes sense because § 2252A(a)

forbids the knowing receipt or possession of “any child pornography” or “any

material that contains child pornography,” and because all of the images at issue

here were found on a single hard drive in his possession. In other words, he

5
This court expresses no opinion on the question whether § 2252A(a)(5) is a
lesser-included offense of §2252A(a)(2). Compare Davenport, 519 F.3d 940, 944
(9th Cir. 2008) (holding § 2252A(5) to be lesser included offense of
§ 2252A(a)(2)), with id. at 948-52 (Graber, J., dissenting).

-28-
attempts to aggregate all the images found on his computer, labeling all of them

as the “child pornography” at issue in his case. Child pornography, however, is

defined by the statute as “any visual depiction, including any photography, film,

video, picture, or computer or computer-generated image or picture.” 18 U.S.C.

§ 2256(8). This court has concluded the term visual depiction means “the

substantive content of an image depicting a minor engaging in sexually explicit

conduct.” Sturm, 2012 WL 593128, at *8. Sturm’s argument is thus easily

rejected because the term “child pornography” refers to the substantive content of

each particular image, and does not refer to the collection of all images contained

on a hard drive. The government proved beyond a reasonable doubt that Sturm

received at least one image of child pornography and possessed at least one

different image of child pornography and his decision to store all such materials

on a single hard drive is of no significance.

IV. CONCLUSION

For the foregoing reasons, Mr. Sturm’s conviction is AFFIRMED.

-29-