United States Court of Appeals
For the First Circuit
No. 03-1741
UNITED STATES OF AMERICA,
Respondent, Appellant,
v.
DAVID HILTON,
Petitioner, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. Senior District Judge]
Before
Torruella and Howard, Circuit Judges,
and Schwarzer,* Senior District Judge.
F. Mark Terison, Senior Litigation Counsel, with whom Paula D.
Silsby, United States Attorney, was on brief, for appellant.
Bruce M. Merrill, on brief, for appellee.
April 2, 2004
*
Of the Northern District of California, sitting by designation.
TORRUELLA, Circuit Judge. David Hilton was convicted of
a one-count violation of 18 U.S.C. § 2252A(a)(5)(B), the Child
Pornography Prevention Act ("CPPA"), on June 30, 2000. In light of
the Supreme Court's decision in Ashcroft v. Free Speech Coalition,
535 U.S. 234 (2002), holding that the government may not
criminalize possession of non-obscene sexually explicit images that
appear to, but do not in fact, depict actual children, Hilton
sought and was granted post-conviction relief under 28 U.S.C.
§ 2255. The government appeals. Because the district court
correctly held that the prosecution did not prove an element of the
crime, we affirm the grant of relief vacating Hilton's conviction.
I. Procedural History
A. Indictment, Dismissal and Appeal
Based on evidence discovered by local law enforcement
pursuant to a valid search warrant, a federal grand jury indicted
Hilton on December 17, 1997, charging him with a one-count
violation of 18 U.S.C. § 2252A(a)(5)(B).1 Hilton moved to dismiss
the indictment, arguing that the CPPA violated the First Amendment.
Section 2252A(a)(5)(B) criminalizes the knowing possession of child
1
The statute provides that "Any person who . . . knowingly
possesses any book, magazine, periodical, film, videotape, computer
disk, or any other material that contains an image of 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, or
shipped or transported in interstate or foreign commerce by any
means, including by computer . . . shall be punished . . . ." 18
U.S.C. 2252A(a)(5)(B).
-2-
pornography that has traveled between states or between countries.
Hilton's First Amendment challenge involved the definition of
"child pornography" in 18 U.S.C. § 2256(8). That provision defines
child pornography to include "any visual depiction, including any
photograph, film, video, picture, or computer or computer-generated
image or picture, whether made or produced by electronic,
mechanical, or other means, of sexually explicit conduct, where
such visual depiction is, or appears to be, of a minor engaging in
sexually explicit conduct." 18 U.S.C. § 2256(8)(B). Section
2256(8)(B) was added by Congress in 1996 after finding that "new
photographic and computer imaging technologies make it possible to
produce by electronic, mechanical, or other means, visual
depictions of what appear to be children engaging in sexually
explicit conduct that are virtually indistinguishable to the
unsuspecting viewer from unretouched photographic images of actual
children engaging in sexually explicit conduct." Child Pornography
Prevention Act of 1996, Pub. L. No. 104-208, div. A, tit. I, § 121
(1)(5), 110 Stat. 3009-26 (1996) (emphasis added).
Hilton argued that this new definition violated the First
Amendment by prohibiting some adult pornography -- that appearing
to be of children -- and by virtue of vagueness and overbreadth.
The district court agreed, holding that the CPPA's "appears to be"
provision was overbroad and left unclear exactly what images were
illegal. The district court dismissed the indictment on March 26,
-3-
1998. United States v. Hilton, 999 F. Supp. 131 (D. Me. 1998)
("Hilton I"). The United States appealed, and this court reversed
and reinstated the indictment. See United States v. Hilton, 167
F.3d 61 (1st Cir. 1999) ("Hilton II").
B. Trial and Appeal
After the Supreme Court denied Hilton's petition for
certiorari, the case advanced to trial. Hilton waived his right to
a jury trial. After the issuance of a superseding indictment on
January 5, 2000, the district court heard the case against Hilton
over the course of three days. This court reviewed the district
court's findings extensively in United States v. Hilton, 257 F.3d
50 (1st Cir. 2001) ("Hilton IV") (reviewing United States v.
Hilton, No. 97-78-P-C, 2000 U.S. Dist. LEXIS 9220 (D. Me. June 30,
2000) ("Hilton III")). Here we concentrate on the evidence at
issue in this appeal.
The search of Hilton's computer room on November 7, 1997,
produced a number of pornographic images. These were found on a
Sony Backup Tape, in Hilton's hard drive, and printed up and stored
in a "gray box." According to Agent Marx of the local police, whom
the parties stipulated as a computer forensics expert, the Sony
Backup Tape was used to back up Hilton's computer two months before
seizure. The Sony tape contained thousands of images; the
government introduced seven of them. The "gray box" contained a
print-out with four images identical to four in the Sony tape. The
-4-
hard drive contained three images, and this court on review found
two to be non-explicit. See Hilton IV, 257 F.3d at 58.
To prove that these images depicted children, rather than
adults, the government introduced the testimony of Dr. Lawrence
Ricci. Dr. Ricci testified as to the Tanner Scale and its
application to the seized images. The Tanner Scale was developed
through analysis of many children both in the United States and
throughout the world and provides a basis for estimating a person's
stage of physiological development. Dr. Ricci marked on the backs
of the images his opinion as to the children's ages. In his
opinion, apart from an image that morphed a child's face with an
adult woman's body, the other nine images represented children at
various stages of development, ranging from pre-school to young
teen. See Hilton III, 2000 U.S. Dist. LEXIS 9220 at *23-26.
Based on this evidence, the district court found beyond
a reasonable doubt that the images satisfied the definition of
child pornography in 18 U.S.C. § 2256(8). The court also found the
required element of scienter and an interstate nexus. Since the
court did not find merit in Hilton's affirmative defenses that he
was possessing the images under authority of the government, it
convicted Hilton on June 30, 2000, and subsequently sentenced him
to forty months imprisonment.
Hilton appealed his conviction, challenging the
constitutionality of the CPPA and the sufficiency of the evidence.
-5-
He reiterated his affirmative defense that he had collected the
images at the government's request. Hilton IV, 257 F.3d 50.
Hilton also claimed that the district court erred in his
sentencing. We rejected all but the sentencing claim. Since we
concluded that two of the three hard drive images did not qualify
as child pornography or involve the sexual exploitation of a minor,
we remanded for resentencing because the record did not support the
Sentencing Guidelines upward adjustment applied by the district
court for possession of "ten or more . . . items, containing a
visual depiction involving the sexual exploitation of a minor."
U.S.S.G. § 2G2.4(b)(2); see Hilton IV, 257 F.3d at 58. As for
Hilton's constitutional challenge, we noted that we had "rejected
this claim on Hilton's earlier appeal." Hilton IV, 257 F.3d at 53.
Hilton asked us to reconsider our prior holding in light of the
Ninth Circuit's decision in Free Speech Coalition v. Reno, 198 F.3d
1083 (9th Cir. 1999), but we declined to do so.2 Id. Thus, on
2
We noted that "the Ninth Circuit struck down only those portions
of the Act making illegal possession of computer generated images
of fictitious children." Hilton IV, 257 F.3d at 53. The
government argues that this language implies that we found Hilton's
images to represent actual children. The flaw in the argument is
that it is the Supreme Court's Free Speech Coalition, rather than
Hilton IV, which controls and from that case it is clear that the
law in this circuit must change. No longer can a pornographic
image be assumed to depict real children until proven otherwise.
Our comment in Hilton IV reflected the law of this circuit under
Nolan. Free Speech Coalition together with changing technology has
superseded those precedents.
-6-
July 27, 2001, we affirmed Hilton's conviction and remanded for
resentencing.
On remand, the district court sentenced Hilton to
thirty-four months of incarceration.
C. The CPPA after Ashcroft v. Free Speech Coalition
While Hilton's direct appeal was pending, the Supreme
Court granted certiorari to review the Ninth Circuit's Free Speech
Coalition v. Reno, 198 F.3d 1083 (9th Cir. 1999), a civil suit
challenging on its face the constitutionality of the CPPA as
amended in 1996. The key challenge, and the one relevant here, was
against prosecution for "child pornography" that only "appears to
be, of a minor engaging in sexually explicit conduct." 18 U.S.C.
§ 2256(8)(B). In Ashcroft v. Free Speech Coalition, 535 U.S. 234
(2002), the Court affirmed the Ninth Circuit holding that such
prosecutions violate the First Amendment's protection against
governmental abridgement of the freedom of speech. Id. at 258; see
U.S. Const. amend. I.
The First Amendment does not protect obscenity, Miller v.
California, 413 U.S. 15 (1973), or the possession of child
pornography produced using children. Osborne v. Ohio, 495 U.S.
103, 110 (1990) ("It rarely has been suggested that the
constitutional freedom for speech and press extends its immunity to
speech or writing used as an integral part of conduct in violation
of a valid criminal statute.") (quoting New York v. Ferber, 458
-7-
U.S. 747, 761-62 (1982) (quoting Giboney v. Empire Storage & Ice
Co., 336 U.S. 490, 498 (1949))).
The CPPA is not circumscribed by the Miller definition of
obscenity. Free Speech Coalition, 535 U.S. at 246.3 Therefore,
since the "appears to be" definition prohibits non-obscene speech,
the Free Speech Coalition Court addressed the government's
contention that the rationale behind Osborne and Ferber extended to
the criminalization of sexually explicit images that appear to
contain children. Those two cases viewed the trade in and
possession of child pornography as bearing a proximate link to the
child abuse that produced the images in the first place. See Free
3
Congress has responded with amendments to the CPPA in the
Prosecutorial Remedies and Other Tools to end the Exploitation of
Children Today Act of 2003 ("PROTECT") that specify a class of
obscene child pornography reaching "Any person who . . . knowingly
produces, distributes, receives, or possesses with intent to
distribute, a visual depiction of any kind, including a drawing,
cartoon, sculpture, or painting, that:
(1) (A) depicts a minor engaging in sexually explicit
conduct; and
(B) is obscene; or
(2) (A) depicts an image that is, or appears to be, of
a minor engaging in graphic bestiality, sadistic or
masochistic abuse, or sexual intercourse, including
genital-genital, oral-genital, anal-genital, or
oral-anal, whether between persons of the same or
opposite sex; and
(B) lacks serious literary, artistic, political, or
scientific value; or attempts or conspires to do so,
shall be subject to the penalties provided in section
2252A(b)(1), including the penalties provided for cases
involving a prior conviction.
18 U.S.C. § 1466A(a) (2003).
-8-
Speech Coalition, 535 U.S. at 249-50. The government presented two
types of arguments to show that the prohibition on virtual
pornography was indeed proximate to compelling interests; one
argument was based on the injuries allegedly flowing from "appears
to be" child pornography and the second on prosecutorial necessity.
Two concerns motivated the first argument: (1) that
"pedophiles may use virtual child pornography to seduce children,"
id. at 251, and (2) that virtual child pornography "whets the
appetites of pedophiles and encourages them to engage in illegal
conduct." Id. at 253. Contrary to our earlier conclusion in
Hilton II, 167 F.3d at 72-74, the Court held that the availability
of virtual child pornography to child abusers does not provide a
basis for the prohibition because while "[t]he objective is to
prohibit illegal conduct . . . this restriction goes well beyond
that interest by restricting the speech available to law-abiding
adults." Id. at 252-53. As for the concern that virtual child
pornography motivates child abuse, the Court disagreed with the
premise behind the government's argument: "[t]he mere tendency of
speech to encourage unlawful acts is not a sufficient reason for
banning it." Free Speech Coalition, 535 U.S. at 253. Because
"[t]he Government has shown no more than a remote connection
between speech that might encourage thoughts or impulses and any
resulting child abuse," it "may not prohibit speech on the ground
-9-
that it may encourage pedophiles to engage in illegal conduct."
Id. at 253-54.
The government's second argument was that eliminating
actual child pornography necessitates the prohibition on virtual
pornography because virtual images are indistinguishable from real
ones. Id. at 254-55. First, the government contended that
"[v]irtual images . . . are indistinguishable from real ones[, and]
they are part of the same market and are often exchanged." Id. at
254. The Court found this "hypothesis . . . somewhat implausible.
If virtual images were identical to illegal child pornography, the
illegal images would be driven from the market by the
indistinguishable substitutes. Few pornographers would risk
prosecution by abusing real children if fictional, computerized
images would suffice." Id. To the government's claim that
indistinguishability meant that the successful prosecution of
actual child pornography necessitated criminalization of virtual
child pornography, the Court responded: "[t]he argument, in
essence, is that protected speech may be banned as a means to ban
unprotected speech. This analysis turns the First Amendment upside
down." Id. at 255. Thus the Court held that possession of
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material that satisfied only § 2256(8)(B) could not be punished.4
Id. at 256.
D. Post-Conviction Relief
Based on the Court's ruling in Free Speech Coalition,
Hilton filed a motion for post-conviction relief under 28 U.S.C.
§ 2255 on November 13, 2002. The magistrate judge hearing the
petition agreed that Hilton was entitled to relief. United States
v. Hilton, Crim. No. 97-78-P-C, Civ. No. 02-235-P-C, 2003 U.S.
Dist. LEXIS 4208, (D. Me. March 20, 2003) ("Hilton V"). The
district court adopted that recommendation and vacated Hilton's
conviction. United States v. Hilton, Crim. No. 97-78-P-C, Civ. No.
02-235-P-C, 2003 U.S. Dist. LEXIS 8130, 2003 WL 21135703 (D. Me.
May 15, 2003). The government's appeal has put Hilton's petition
before this court.
II. Analysis
After Free Speech Coalition, the government must prove
that an image depicts actual children to sustain a § 2252A(a)(5)(B)
conviction. Both parties agree that the holding of Free Speech
Coalition applies retroactively. See Teague v. Lane, 489 U.S. 288,
307-11 (1989) (exception to non-retroactivity when new rule "places
4
The Court applied the same reasoning to find § 2256(8)(d)
contrary to the First Amendment. That section, defining as
prohibited child pornography "such visual depiction [that] is
advertised, promoted, presented, described, or distributed in such
a manner that conveys the impression that the material is or
contains a visual depiction of a minor engaging in sexually
explicit conduct," is not at issue in this case.
-11-
certain kinds of primary, private individual conduct beyond the
power of the criminal law-making authority to proscribe," id. at
311) (quoting Mackey v. United States, 401 U.S. 667, 675 (1971)
(Harlan, J., concurring in part and dissenting in part)). In
arguing the habeas court's error, the government asks us to
conclude that the trial court found that the seized images depicted
actual children and that we should, therefore, reinstate the
conviction.
For the government to prevail in this appeal and persuade
us to reinstate the conviction, we must agree that sufficient
evidence was presented at Hilton's trial to satisfy the element of
the crime that the children depicted in the images are real.
Evidence is deficient, as a matter of law, when "after assaying all
the evidence in the light most amiable to the government, and
taking all reasonable inferences in its favor, a rational
factfinder could [not] find, beyond a reasonable doubt, that the
prosecution successfully proved the essential elements of the
crime." United States v. O'Brien, 14 F.3d 703, 706 (1st Cir.
1994). We agree with the district court and conclude that the
government presented insufficient evidence at Hilton's trial to
sustain a conviction under 18 U.S.C. § 2252A(a)(5)(B).
Congress amended the CPPA in 1996 as a response to
technological developments that enabled the manufacture of images
that look like child pornography and yet are produced without
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children. See Pub. L. No. 104-208, div. A, tit. I, § 121(1)(5),
110 Stat. 3009-26 (1996). Because the Supreme Court has
established that the First Amendment does not countenance
prohibitions on such speech, we hold that conviction under § 2252A
(a)(5)(B) requires the government to present evidence proving that
the child in the image is not confabulated, but real.
The government is not released from this burden of proof
by a failure on the defendant's part to argue, or by an absence of
evidence otherwise suggesting, the artificiality of the children
portrayed. That the children in the images are real amounts to an
element of the crime which the government must prove. The
artificiality of the children depicted is not to be rendered a mere
affirmative defense.5 "Protected speech does not become
unprotected merely because it resembles the latter." Free Speech
Coalition, 535 U.S. at 255.
The government argues, and other circuits have agreed,
that the pornographic images themselves should suffice to prove the
use of actual children in production. See United States v. Kimler,
5
The CPPA, as it existed at Hilton's conviction, provided an
affirmative defense for persons charged with non-possession
offenses, i.e., distribution, production, and sale, by showing only
adults were used in the production of the material. 18 U.S.C.
§ 2252A(c) (1996). The Supreme Court in Free Speech Coalition
recognized that "[t]he Government raises serious constitutional
difficulties by seeking to impose on the defendant the burden of
proving his speech is not unlawful" but did "not decide, however,
whether the Government could impose this burden on a speaker."
Free Speech Coalition, 535 U.S. at 256.
-13-
335 F.3d 1132, 1142 (10th Cir. 2003) ("Juries are still capable of
distinguishing between real and virtual images . . . ."); United
States v. Deaton, 328 F.3d 454, 455 (8th Cir. 2003) (reaffirming
the reasonableness of "a jury's conclusion that real children were
depicted even where the images themselves were the only evidence
the government presented on the subject"); United States v. Hall,
312 F.3d 1250, 1260 (11th Cir. 2002) (affirming pre-Free Speech
Coalition conviction because "no reasonable jury could have found
that the images were virtual children created by computer
technology as opposed to actual children"). These courts' holdings
express a judgment that a jury can distinguish a depiction of an
actual child from a depiction of a virtual child "even where the
images themselves were the only evidence." Deaton, 328 F.3d at
455. While the images form essential evidence without which a
conviction could not be sustained, we hold that the government must
introduce relevant evidence in addition to the images to prove the
children are real.
In United States v. Nolan, 818 F.2d 1015 (1st Cir. 1987),
this court reviewed a conviction under the CPPA before Congress
amended the definition of child pornography to include images that
"appear[] to be" of children. See Pub. L. No. 104-208, div. A,
tit. I, § 121(2)(4), 110 Stat. 3009-26 (1996). Nolan argued on
appeal that since the government had relied on the images to prove
the crime, it had presented insufficient evidence. We held that
-14-
"on this record the prosecution was not required, as part of its
affirmative case, to rule out every conceivable way the pictures
could have been made other than by ordinary photography." Id. at
1020. Rather, we noted that Nolan "presented no expert evidence at
trial that these pictures were or could have been produced by any
such artificial means." Id. at 1019. Today we recognize that the
vast technological revolution underway since 1987 -- when we
decided Nolan -- has made undeniable the fact that sexually
explicit images portraying children can be produced by artificial
means; the burden of proving that the images "were or could have
been produced by any such artificial means" can no longer rest on
the defendant. To convict under § 2252A(a)(5)(B), the government
must supplement the images with other relevant evidence proving
that the children portrayed are real. The defendant is entitled to
have this element proved affirmatively without entering any
evidence to the contrary. Otherwise, "[p]rotected speech [could]
become unprotected merely because it resembles [unprotected
speech]." Free Speech Coalition, 535 U.S. at 255.
The government contends that Dr. Ricci's testimony
constituted relevant evidence establishing that the children in
Hilton's computer images were real. Dr. Ricci's testimony and
image-by-image evaluations supported the district court's finding
that the images represented children rather than adults. The
government argues that in proving that the images represented
-15-
children, Dr. Ricci also made the case that the children were real.
In the government's own words:
The "Tanner Scale" was developed through an
analysis of "large numbers of children" both
in the United States and throughout the world.
Commonsense establishes that the scale was
developed through the assessment of actual
children. The reasonable and commonsense
inference is also that Dr. Ricci, as an expert
pediatrician, would apply the "Tanner Scale"
only to actual children.
We find more commonsensical a proposition leading to the contrary
inference that someone manufacturing images to look like children
will try -- and with sufficient technology will manage -- to
produce images that would be amenable to expert analysis under the
Tanner Scale. Whatever parameters of body proportion, growth and
development serve as signs of age under the Tanner Scale, those
parameters will be mimicked by the virtual pornographer -- whether
by design or as a byproduct of the goal of realism. What a finding
of guilt beyond a reasonable doubt demands is evidence that the
indicators of youth apparent to the untrained eye belong to an
actual child. Accordingly, we find the government's contention
-16-
that Dr. Ricci presented sufficient evidence to prove that the
children represented were real unavailing.6
In response to Free Speech Coalition, Congress rewrote
the invalidated sections of the CPPA. In place of the "appears to
be" language formerly at § 2256(8)(B), Congress added a new
definition of child pornography: "such visual depiction is a
digital image, computer image, or computer-generated image that is,
or is indistinguishable from, that of a minor engaging in sexually
explicit conduct." 18 U.S.C. § 2256(8)(B) (2003). Our holding
today applies equally to the new § 2256(8)(B) because "appears to
be" is equivalent to "indistinguishable" in this context.7
Possession of non-obscene images can only be punished when real
6
This appeal does not require us to delineate what kinds of
evidence can prove that the children depicted are real, as the
government proffered no evidence relevant to this element apart
from the images. We note, however, that evidence establishing the
identity of a depicted child could demonstrate to a factfinder that
real children were used to produce images. Other evidence, such as
the testimony of a computer graphics expert, could also permit the
factfinder to reasonably determine that this element of the crime
was proved beyond a reasonable doubt. See, e.g., United States v.
Rearden, 349 F.3d 608, 613-14 (9th Cir. 2003).
7
There is some irony to this change, as the Senate's discussion
of the 1996 "appears to be" amendment shows that Congress aimed
with that language to target images "which are virtually
indistinguishable to unsuspecting viewers from unretouched
photographs of actual children engaging in identical sexual
conduct." S. Rep. 104-358, at pt. I, IV(B) (emphasis added); see
Hilton II, 167 F.3d at 72.
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children were part of the production process,8 and that is for the
government to prove.9
III. Conclusion
The district court properly granted Hilton post-
conviction relief because the United States did not present
sufficient evidence to prove that the images in evidence against
Hilton represented actual children. The government must present
relevant evidence in addition to the images themselves, and Dr.
Ricci's testimony as to the ages of the children depicted in the
images was not adequate to meet this burden.
Affirmed.
8
Participation in the production process might involve as little
as having one's face photographed and then morphed into a sexually
explicit image using an adult or virtual model to complete the
picture. The Supreme Court, addressing the CPPA's ban on morphed
images, refrained from addressing its constitutionality:
Section 2256(8)(C) prohibits a more common and lower tech
means of creating virtual images, known as computer
morphing. Rather than creating original images,
pornographers can alter innocent pictures of real
children so that the children appear to be engaged in
sexual activity. Although morphed images may fall within
the definition of virtual child pornography, they
implicate the interests of real children and are in that
sense closer to the images in Ferber. Respondents do not
challenge this provision, and we do not consider it.
Free Speech Coalition, 535 U.S. at 242.
9
As part of PROTECT, Congress also extended the affirmative
defense for a defendant, prosecuted for the possession offense of
which Hilton was indicted, who can show that adults rather than
children were used or that no actual children were used in creating
the image. 18 U.S.C. § 2252A(c) (2003).
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Concurring opinion follows.
-19-
HOWARD, Circuit Judge (Concurring in the judgment). I
agree that the judgment should be vacated, but I would not hold
that the government must present evidence in addition to the image
itself to prove that the picture depicts an actual child and not a
virtual image.10
I.
The law in this circuit has been that a trier of fact,
without the assistance of an expert or other evidence, can discern
between an actual and virtual image of child pornography. See
United States v. Nolan, 818 F.2d 1015, 1017-19 (1st Cir. 1987). In
Nolan, a pre-1996 Child Pornography Prevention Act ("CPPA")
prosecution, the defendant challenged his conviction on the grounds
that the government had failed to prove that the pornographic
pictures at issue depicted actual children. Id. at 1017. The
defendant argued that the pictures were insufficient evidence on
this issue because the government failed to present expert
testimony that the pictures were not generated through computer
imaging or similar methods. Id. We rejected this argument,
concluding that "ordinary people in today's society are quite
10
The issue here concerns only the evidence necessary to
distinguish between actual and virtual images of child pornography.
Evidentiary issues concerning "morphed images" of child pornography
(e.g., images that combine a child and adult body to make one
image) are not implicated because possession of such images remains
illegal under the CPPA. See Ashcroft v. Free Speech Coalition, 535
U.S. 234, 242 at n.8 (2002).
-20-
accustomed to seeing photographs and distinguishing them from other
forms of visual representations." Id.
As I read today's decision, we overrule Nolan because
"the vast technological revolution underway since [Nolan was
decided] has made undeniable the fact that sexually explicit images
portraying children can be produced through artificial means."
Ante at 15. There can be no doubt that we have undergone a
technological revolution since Nolan. One need only turn on a
computer, attend a movie, or view one of the latest video games to
understand that we live in a digital age in which virtual images
look more and more real. One certainly can understand the
majority's concern that this same technology could be used to
produce realistic virtual pornography.
However, I think the question we resolve here should not
be whether technology has improved greatly since Nolan. The
relevant question in this case, involving images created almost a
decade or longer ago, should be whether the available technology
had progressed to such an extent that we can never (and
specifically in this case) trust lay people, unaided by experts or
other evidence, to differentiate between the real and the virtual.
I would adhere to Nolan and to what appear to be all of the other
relevant authorities to conclude that ordinarily fact finders can
-21-
continue to distinguish between real and virtual images of child
pornography based solely on the presentation of the images.11
It is true that in passing the 1996 amendment to the
CPPA, Congress appears to have taken the view that there are
instances in which lay people are no longer able to distinguish
between the real and the virtual. As the Senate report put it:
New and increasingly less complex technology
and expensive photographic computer imaging
technologies make it possible for individuals
to produce on home computers visual depictions
of children engaging in sexually explicit
conduct that are virtually indistinguishable
from retouched photographic images of actual
children engaging in sexually explicit
conduct.
S. Rep. 104-358 (emphasis supplied).
The Supreme Court, however, does not agree. In Free
Speech Coalition, the government claimed that, under current
technology, "virtual images [can be created that are]
indistinguishable from real ones." 535 U.S. at 1404-05. The Court
found this "hypothesis [to be] somewhat implausible." It reasoned,
"[I]f virtual images were identical to illegal child pornography,
the illegal images would be driven from the market by the
indistinguishable substitutes. Few pornographers would risk
11
This is not to say the majority's concerns are off base.
Indeed, as a matter of the reliability of evidence, it is not clear
where the logical stopping point for the majority's concerns is,
and the time may come when the rule it today establishes for this
circuit will become prevalent. For now, I would leave the issue to
sound trial management by the district courts.
-22-
prosecution by abusing real children if fictional, computerized
images would suffice." Id. at 254.12 The import of this statement
is that the typical consumer of child pornography can differentiate
between real and virtual depictions of child pornography.
Presumably, if the average child pornography consumer can make such
a determination, so can a judge or juror.
In the wake of Free Speech Coalition, every court to
have considered the question has determined that the presentation
of the pictures alone constitutes sufficient evidence for
determining that an actual child is depicted in the pornographic
image. See United States v. Slanina, 359 F.3d 356, 357 (5th Cir.
2004) (per curiam) ("[T]he Government was not required to present
any additional evidence or expert testimony to meet its burden of
proof to show that the image downloaded by [the defendant] depicted
real children and not virtual children."); United States v. Kimler,
335 F.3d 1132, 1142 (10th Cir. 2003) ("Juries are still capable of
distinguishing between real and virtual images."); United States v.
12
The dissenting Justices accepted the government's argument that
virtual images could be created that are indistinguishable from
real ones. See Free Speech Coalition, 535 U.S. at 264 (O'Connor,
J., dissenting); 535 U.S. at 268-69 (Rehnquist, C.J., dissenting).
In addition to the majority opinion, Justice Thomas, stated that
while technology may advance to the point that indistinguishable
virtual images could be created, the government failed to
demonstrate that this advancement had already occurred. Id. at
259-60 (Thomas, J., concurring in the judgment). Thus, the various
Free Speech Coalition opinions indicate that the issue of whether
truly indistinguishable virtual images of child pornography can be
created using modern technology was considered by all the Justices
and rejected by a majority.
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Deaton, 328 F.3d 454, 455 (8th Cir. 2003) (upholding jury's
conclusion that pictures depicted actual children "where the images
themselves were the only evidence the government presented on the
subject"); United States v. Hall, 312 F.3d 1250, 1260 (11th Cir.
2003) (concluding, after review of pictures, that "no reasonable
jury could have found that the images were virtual children created
by computer technology as opposed to actual children"); United
States v. Fuller, 2003 WL 22331999, at *7 (6th Cir. Oct. 9, 2003)
(unpublished disposition) (citing Deaton for proposition that
"jury's conclusion that real children were depicted may be upheld
even when the only evidence offered was the images themselves");
see also United States v. Brinkley, 2003 WL 22495757, at *8 (A.F.
Ct. Crim. App. Oct. 31, 2003) (citing Kimler for proposition that
"Free Speech Coalition does not require either direct evidence of
the identity of the children in the images or expert testimony that
the images are of real children rather than computer generated
virtual images") (unpublished disposition); People v. Norman, 803
N.E.2d 1099, 1103 (Ill. App. Ct. 2004) (holding that under Illinois
child pornography statute "the trier of fact may make a
determination as to how an image was produced from the image
itself."); Commonwealth v. Simone, 2003 WL 22994238, at *22-23 (Va.
Cir. Ct. Oct. 10, 2003) (holding that under Virginia child
pornography statute "the Commonwealth may seek to rely upon the
images themselves without the necessity for expert opinion" to
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prove that pictures depict images of actual children). In my view,
there is nothing about this case that provides a substantial reason
to decline to follow the Supreme Court's guidance on this issue and
to reject the holdings of our companion courts that evidence in
addition to the image itself is not required to prove that the
pornographic picture depicts an actual child.
The majority opinion suggests that testimony by a
computer graphics expert or evidence identifying the depicted child
could satisfy the additional burden that the government must now
meet to prove that the picture at issue shows a real child. Ante
at 17 n.6. After Free Speech Coalition, defendants will certainly
argue that the government has failed to prove beyond a reasonable
doubt that the pictures are of real children. And, in light of
evolving technology, triers of fact may be more inclined to accept
such arguments if the government relies on only the pictures as
evidence. Nevertheless, it is one thing to acknowledge that the
government could benefit from introducing additional evidence and
quite another to insist that the government introduce such evidence
in every case regardless of the circumstances. I would not require
that, as a general rule, the government must introduce additional
evidence to meet its burden of proving that the pictures at issue
depict actual children.
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II.
Although I believe that there was sufficient evidence to
sustain Hilton's conviction based on the government's presentation
of the images in his possession, I nevertheless agree that Hilton's
conviction must be vacated.
Because Hilton's trial occurred before Free Speech
Coalition, the government was not required to prove that the
pictures at issue depicted actual children to gain a conviction.
As a result, the trier of fact did not find that the pictures in
Hilton's possession depicted actual children as is required for a
valid conviction. See ante at 11 (stating that parties agree that
Free Speech Coalition applies retroactively to Hilton's
conviction). The failure of the trier of fact to find every
element of a crime (even though sufficient evidence on the element
was presented at trial) is a constitutional error that sometimes
requires reversal. See United States v. Gaudin, 515 U.S. 506, 511
(1995).
However, the failure of the fact finder to find every
element of a crime does not mandate reversal in all cases. Errors
of this sort are susceptible to harmless error review. Mitchell v.
Esparaza, 124 S. Ct. 7, 11 (2003) (per curiam); Neder v. United
States, 527 U.S. 1, 19 (1999); United States v. Raheman-Fazal, 355
F.3d 40, 47 (1st Cir. 2004). Indeed, some courts have upheld pre
Free Speech Coalition CPPA convictions, despite the fact finder's
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failure to find that the pictures depicted actual children. See
United States v. Wolk, 337 F.3d 997, 1004-05 (8th Cir. 2003)
(upholding CPPA conviction, under plain error review, because
strong evidence demonstrated that pictures depicted actual
children; accordingly, lack of jury finding on "actual child
element" did not affect defendant's substantial rights); Hall, 312
F.3d at 1260 (similar).13
Had the government asserted that the error here was
harmless, I would have seriously considered its argument. But the
government, the appellant in this case, has chosen not to do so.
The argument is therefore forfeit. See Plumley v. Southern
Container, Inc., 303 F.3d 364, 372 n.7 (1st Cir. 2002).
Furthermore, the state of the record does not permit us
to find harmless error sua sponte. See United States v. Rose, 104
F.3d 1408, 1414-15 (1st Cir. 1997) (stating that in some cases
court may raise harmless error sua sponte). The trial transcript
is not part of the appellate record, which makes conducting a
13
These cases were decided under the "affecting substantial
rights" prong of the plain error analysis under Fed. R. Crim. P.
52(b). Such analysis is essentially the same as a harmless error
review except that the defendant, not the government, bears the
burden of proof under Rule 52(b). See United States v. Soto-
Beníquez, 356 F.3d 1, 49 (1st Cir. 2004); United States v. Ramírez-
Burgos, 313 F.3d 23, 29 (1st Cir. 2002).
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harmless error review all the more difficult.14 See id. at 1415.
While the record before us includes the pictures in Hilton's
possession, I cannot tell what other evidence, if any, would
support a harmless error conclusion. Indeed, I cannot even discern
how the pictures were introduced at trial or what evidence was
given to the trier of fact about them by either party. While the
pictures alone can constitute evidence sufficient to sustain a CPPA
conviction, I am not prepared to say, on this incomplete record and
without argument from the parties, that they are enough to conclude
that the fact finder's failure to find that the images in Hilton's
possession were of actual children was a harmless error.
14
Although the government's brief cites to the trial transcript,
the docket indicates that the only transcripts filed in this court
were of a bail hearing held on June 5, 2003 and a motion hearing
held on June 9, 2003.
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