[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
August 24, 2005
No. 04-16480
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-20406-CR-FAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIO ANTONIO ACOSTA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 24, 2005)
Before BIRCH, BARKETT and WILSON, Circuit Judges.
WILSON, Circuit Judge:
Mario Antonio Acosta, who was convicted by a jury for attempting to
receive a videotape containing child pornography and attempting to possess a
videotape containing child pornography, appeals the denial of his motion for
judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. He
claims that the government failed to satisfy the jurisdictional requirement that the
videotape travel in interstate commerce, and that the district court was thereby
obligated to grant his motion. We affirm the district court’s ruling.
I. Background
In April 2004, Acosta logged-on to an Internet website that appealed to
people interested in youthful or underage homosexual activity, and made inquiries
about how he could purchase pornographic videos. Little did he know that the
website was actually part of an undercover operation designed to catch child
pornography purchasers over the Internet. A United States Postal Inspector in
Harrisburg, Pennsylvania, using the undercover name “Sam” obtained an
undercover e-mail address to receive communications from individuals during the
investigation and began communicating with Acosta.
In some of the e-mails, Sam, graphically describing the child pornography
videotapes he had available, told Acosta that he would charge him twenty dollars
per tape. Acosta then e-mailed Sam telling him that he sent him a twenty dollar
money order for the videotape and asked Sam to mail the videotape to his home in
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Miami, Florida. In response, Sam told Acosta that he sent the videotape by
overnight mail, and that he should expect it the following day. However, instead
of mailing the videotape overnight, Sam sent it by registered mail to a postal
inspector (Fernandez) in Miami. After receiving the videotape from Sam,
Fernandez packaged it in an express mail package to simulate its condition as if it
were an actual package mailed from Pennsylvania. Fernandez, dressed as a United
States mail letter carrier, personally delivered the package to Acosta, who signed
for the package. Fernandez then left Acosta’s home and later returned to arrest
him.
The grand jury returned a two-count indictment charging Acosta with
attempting to receive material containing child pornography “that had been mailed,
shipped or transported in interstate commerce by any means,” in violation of 18
U.S.C. §§ 2252A(a)(2)(B) and (b)(1), and attempting to possess a videotape
containing images of child pornography, as defined in 18 U.S.C. § 2256(8)(A),
“that had been mailed, shipped or transported in interstate commerce, by any
means,” in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2).1 After the
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Section 2252A(a)(2)(B) of Title 18 of the United States Code applies to “[a]ny person
who . . . knowingly receives or distributes 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. . . .” Section 2252A(a)(5)(B) of Title 18 of the United States Code
applies to “[a]ny person who . . . knowingly sells or possesses with the intent to sell any child
pornography that has been mailed, or shipped or transported in interstate or foreign commerce by
any means, including by computer, or that was produced using materials that have been mailed,
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government rested, Acosta unsuccessfully sought a judgment of acquittal under
Rule 29.
II. Standard of Review
We review the district court’s denial of a motion for judgment of acquittal de
novo, viewing the facts and drawing all inferences in the light most favorable to the
government. United States v. Descent, 292 F.3d 703, 706 (11th Cir. 2002). To
affirm the denial of a Rule 29 motion, we look to the evidence to determine
whether it was sufficient to establish the defendant’s guilt beyond a reasonable
doubt. Id. Where, as here, defendant asserts that the government failed to prove a
jurisdictional requirement of a statute, we view that as a challenge to the
sufficiency of the evidence. United States v. Key, 76 F.3d 350, 353 (11th Cir.
1996).
III. Discussion
Acosta claims that the jurisdictional element of the statutes was not met
because an undercover postal inspector, rather than an actual mail letter carrier,
delivered the videotape to his home. According to Acosta, “actual mailing,” by an
“actual mailman” or a delivery at an “actual post office” must take place to satisfy
or shipped or transported in interstate or foreign commerce by any means, including by computer
. . . .”
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the jurisdictional requirements of 18 U.S.C. §§ 2252A(a)(2)(B) and
2252A(a)(5)(B).
To consider Acosta’s contention, we examine the language of the statutory
provision at issue. “The starting point in construing a statute is the language of the
statute itself.” Randall v. Lofts Garden, 478 U.S. 647, 656, 106 S. Ct. 3143, 3149
(1986). The “cardinal cannon” of statutory interpretation is “that courts must
presume that a legislature says in a statute what it means and means in a statute
what it says there.” Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253–54,
112 S. Ct. 1146, 1149 (1992). Moreover, we construe statutes so that “no clause,
sentence, or word shall be superfluous, void, or insignificant.” United States v.
Ballinger, 395 F.3d 1218, 1236 (11th Cir. 2005).
The statutes that Acosta faced unambiguously state that child pornography
need only be shipped, transported, or mailed in interstate or foreign commerce by
any means, to satisfy the jurisdictional requirement. See 18 U.S.C. §§
2252A(a)(2)(b), 2252A(a)(5)(B). Therefore, all that the government needed to
prove beyond a reasonable doubt to escape Acosta’s Rule 29 motion was that the
videotape was mailed, or shipped or transported in interstate or foreign commerce
“by any means.” Id.; see also United States v. Maxwell, 386 F.3d 1042, 1051
(11th Cir. 2004) (emphasis added). Certainly, without evidence that the child
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pornography traveled in interstate commerce, the government is unable to sustain
its burden of proof at trial. But the government’s burden is not as heavy as Acosta
suggests – we do not read the statute to require that the government must prove
that delivery take place by an “actual mailman” or that there is pick-up at an
“actual post office.” The phrase “by any means” obviously evidences Congress’s
intention to include alternative avenues of transportation, like a private courier
service, Federal Express, United Parcel Service or their equivalent, as long as child
pornography is shipped, transported or mailed through the channels of interstate
commerce.
Other circuits appear to support this interpretation. We note that the Fourth
and Sixth Circuits have addressed the meaning of similar language in other child
pornography statutes. In United States v. Dornhofer, 859 F.2d 1195 (4th Cir.
1988), the defendant was convicted for receiving child pornography “that has been
transported or shipped in interstate or foreign commerce or mailed.” Id. at 1197.
The defendant ordered a child pornography catalog from an undercover postal
inspector. Id. The catalog was mailed to a postal inspector in New Jersey, who
then mailed the catalog to another postal inspector in Washington, D.C., who gave
the catalog to the “regular letter carrier assigned to Dornhofer’s route, who
delivered [the pornography] to Dornhofer’s address.” Id. Dornhofer obtained the
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catalog from his mailbox. The Fourth Circuit concluded that “[a]ll that 18 U.S.C. §
2252(a)(2) requires is that a person knowingly receive child pornography that has
been transported or shipped in interstate or foreign commerce or mailed.” Id. at
1197 (internal quotations omitted). Further, the Dornhofer court held that the
pornography in that case was “mailed within the meaning of the statute.” Id. at
1197-98.
Like in Dornhofer, the defendant in United States v. Moore, 916 F.2d 1131
(6th Cir. 1990), was convicted for receiving child pornography that had been
transported, shipped, or mailed in interstate commerce in violation of 18 U.S.C. §
2252(a)(2). In that case, the defendant ordered a child pornography videotape
from an undercover postal inspector. Id. at 1135. The postal inspector packaged
the tape in an express mail envelope, addressed it to Moore, affixed the proper
postage, drove to Moore’s hometown, and hand delivered the envelope to the town
postmaster, who then placed a note in Moore’s post office box telling him that a
large package had arrived for him. Id. Moore picked up the envelope and was
arrested. Id. The Sixth Circuit noted that the statute at issue “encompasses not
only receipt of child pornography through the mail, but also receipt of such
material ‘that has been transported or shipped in interstate or foreign commerce by
any means.’” Id. at 1138. The Sixth Circuit also noted that delivery via UPS,
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rather than via the United States mail, would still “have constituted as sure a
violation” of the statute at issue. Id.
We conclude that the evidence presented in this case is sufficient to satisfy
the jurisdictional requirements of 18 U.S.C. § 2252A(a)(2)(b) and §
2252A(a)(5)(B). Sam used the United States Postal Service to mail the videotape
from Pennsylvania to a postal inspector in Florida, before it was delivered to
Acosta. The videotape, therefore, traveled through the channels of interstate
commerce. That alone would be sufficient to satisfy the jurisdictional requirement,
even though the videotape was not delivered by the mailman or picked up by
Acosta at the post office. The fact that a postal inspector, rather than a mail letter
carrier, later delivered the videotape to Acosta is immaterial. To read the broad
language of the statutes to require “actual mailing,” delivery by an “actual
mailman,” or delivery at an “actual post office” would limit the statutes in a
manner not intended by Congress.
IV. Conclusion
We therefore conclude that the evidence was sufficient to establish beyond a
reasonable doubt that Acosta attempted to possess, and attempted to receive, a
videotape containing child pornography that had been shipped, transported or
mailed in interstate commerce.
AFFIRMED.
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