F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 7 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 02-3097
RANDY C. KIMLER,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. NO. 01-CR-10080-WEB)
Timothy J. Henry, Assistant Federal Public Defender (David J. Phillips, Federal
Public Defender, Wichita, Kansas, with him on the briefs), for Defendant -
Appellant.
Alan G. Metzger, Assistant United States Attorney, Wichita, Kansas (Eric F.
Melgren, United States Attorney, Topeka, Kansas, and Brent I. Anderson,
Assistant United States Attorney, Wichita, Kansas, on the brief), for Plaintiff -
Appellee.
Before TACHA, Chief Judge, and ANDERSON and O’BRIEN, Circuit Judges.
ANDERSON, Circuit Judge.
After a jury trial, Randy C. Kimler was convicted of one count of receiving
or distributing, by computer, images of minors engaged in sexually explicit
conduct in violation of 18 U.S.C. § 2252(a)(2), one count of possession of such
images in violation of 18 U.S.C. § 2252(a)(4)(B), and four counts of distribution
of such images in violation of 18 U.S.C. § 2252(a)(2). After various adjustments,
Kimler was sentenced pursuant to the United States Sentencing Commission,
Guidelines Manual (USSG) (2001 ed.), to 87 months’ imprisonment and three
years of supervised release. Two conditions of his supervised release are that he
cooperate in the collection of a DNA sample, as required by 18 U.S.C. § 3583(d),
and that he participate in a sex offender treatment program. Kimler appeals his
conviction and sentence, including the two described conditions of his supervised
release. For the reasons stated below, we affirm.
BACKGROUND
I. Facts
In April 2001, a citizen in Louisiana contacted the Federal Bureau of
Investigation (“FBI”) regarding an unsolicited email message she had received
that appeared to contain child pornography. Agents from the FBI office in
Louisiana investigated the email message and determined that it contained an
image of a minor engaged in sexually explicit conduct and that the email address
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from which the message had originated was registered to Karen Kimler, 1 a
resident of Wichita, Kansas. They forwarded this information to the FBI office in
Wichita.
Agent Leslie Earl of the Wichita office of the FBI visited the Kimler
residence on April 24, 2001. He talked with Karen, her stepson, Eric Kimler, and
her husband, Randy Kimler. Earl showed an edited version of the image to Karen
and asked if she recognized it. Karen responded that, though she recognized the
girl in the image as Samantha Kimler, Randy’s daughter from a previous
marriage, she had never seen the image nor sent it in an email message.
Similarly, Eric said that he had never seen the image and that he did not send it in
an email message. Agent Earl did not ask Randy about the image at that time. He
did, however, ask Randy to bring his computer to the FBI office the next day and
to be prepared to answer questions regarding the email message.
Randy arrived at the FBI office at the appointed hour but did not have his
computer. He brought, instead, a packet of images that he said he printed from
his computer. Upon examination, Agent Earl believed the images included child
pornography. In this initial interview with Agent Earl, Randy identified the
1
Because many of the people involved in this case share the same last name,
they will, for the most part, be referred to by their first names throughout this
opinion. Randy C. Kimler, the appellant, will be referred to either as Kimler or as
Randy, as the need for clarity dictates.
-3-
image that had been sent to Louisiana and admitted that he sent it to at least two
people he met on the internet. He told Agent Earl that he had used the email
addresses registered in his wife’s and daughter’s names to send out pornographic
images. He forwarded them from his wife’s account to his daughter’s, and then
sent them to third parties. He used this method because he did not know how to
send attachments using his own email address and he did not want to send the
images directly from Karen’s email address. However, he denied sending out
child pornography. Randy then signed a consent form giving Agent Earl
permission to seize and search his computer.
Shortly after the interview, Agent Earl and a partner went to the Kimler
home and seized the family computer, which they delivered to an FBI computer
forensic examiner, Specialist Loveall. Loveall recovered numerous email
messages with images attached. He also found images that were not attached to
email messages. Many of the images had been sent and received using a
combination of email addresses including: a Hotmail 2 address, me_4_u11,
registered to Samantha; a Hotmail address, luckynlove43, registered to Karen; and
2
Hotmail is a free internet based email service offered by Microsoft. See R.
Vol. III at 4. Anyone over the age of 13 may open an account without
verification of identity or significant monitoring by Microsoft. See id. at 5. In
order to send and receive email messages using Hotmail, one must access the
Hotmail servers, which are located in Mountain View, California, at
www.hotmail.com. See id.
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a Hotmail address, Chi-Town-Rebel, registered to Randy. Loveall saved the
images and emails to compact discs, which he delivered to Agent Earl. The
images found on the Kimlers’ computer and Randy’s interview with the FBI led to
the charges in this case.
The evidence introduced at trial established that every image Kimler
received or distributed using his and his family’s Hotmail accounts traveled
through the Hotmail servers in California and Kimler’s internet service provider
in Missouri before reaching his computer in Wichita, Kansas. R. Vol. III at 157.
En route, the data traveled across state lines, at least some of the way over
ordinary phone or cable lines. Id. Even email messages sent from one of
Kimler’s accounts to another account on his computer traveled across the Kansas
state line to his internet service provider located in Kansas City, Missouri, then
back over the state line to Kimler’s computer in Kansas. Id.
In support of its case, the government introduced into evidence sixty-nine
exhibits including emails, emails with attached images, and other images, all
retrieved from Kimler’s computer, or brought by Kimler to the FBI interview.
Those exhibits showed on their faces that images, purportedly proscribed by the
statute, were received and distributed over the internet and possessed by way of
storage on Kimler’s computer. Thus, for example, the government introduced
evidence, through Specialist Loveall’s testimony, that the Kimlers’ computer
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contained at least five email messages, with attached images, that had been sent
from the United Kingdom. Id. at 133-35; see Trial Exs. 10, 11, 18, 19 and 20.
Loveall also testified that he found images attached to email messages that had
been sent from the Kimlers’ computer to various email addresses. R. Vol. III at
135-40; see Trial Exs. 29-36. Finally, Loveall testified—without objection or
challenge on cross-examination—that in his examination of the Kimlers’
computer he found additional evidence that many of the images found on the
computer had been downloaded from the internet and that images were also being
sent from the computer to the internet. R. Vol. III at 141.
Randy’s daughter, Samantha, was called as a witness for the government.
She testified that she did not send any messages from the Hotmail address
registered in her name. She further testified that, while she was living with
Randy in 1999, she received two messages with attached images of what appeared
to be “little girls” engaged in sexually explicit conduct, at an email address he had
established for her. She testified that when she mentioned those email messages
to Randy, he directed her to forward them to his email address, which she did.
She also testified that on one occasion she saw Randy looking at a picture of a
naked young girl on the computer screen.
Neither Randy nor Karen testified at trial. Randy’s son, Eric, was called as
a defense witness. On direct examination, he testified that in addition to Randy
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and himself, nine other individuals had access to the internet at the Kimlers’
house, either through the family computer or through WebTV: 3 family members
Karen, Samantha, Junior Kimler, and Spring Kimler; Eric’s friends, Jeremy,
Shane, A.K., and Lee; and his cousin, Jacob Saunstare. However, on cross-
examination, Eric testified that he never saw any of those individuals accessing
pornography on the internet at his house. 4 More to the point, Eric testified that
none of his friends had the passwords to the email accounts that were used to send
and receive the images of minors at issue in this case.
Also on direct examination, he admitted that he often looked at
pornography on the internet. But on cross-examination he said that he only
looked at girls “[f]rom 14 up.” 5 Id. at 184. He testified that he was not interested
in “really, really young girls.” Id. In particular he testified that he did not look
3
The Kimlers at one time accessed the internet through WebTV, a service
which allows consumers to access the internet through their television without the
need for a stand-alone computer. Later the Kimlers purchased a computer and
accessed the internet using Southwestern Bell’s Digital Subscriber Line (DSL)
service.
4
Eric’s testimony is contradictory on this matter. He testified that his
friends would sometimes look at a “couple of pornographic pictures.” R. Vol. III
at 176. However, he later testified that he had never witnessed anyone going on
pornographic sites while accessing the internet at his house. Id. at 204.
5
Eric gave conflicting testimony on this matter. When he was asked by
defense counsel if he looked at images of “people [his] age and possibly a little
younger,” he responded that he did. R. Vol. III at 181. He later testified,
however, that he only liked girls “[f]rom 14 up.” Id. at 184. Therefore, it is not
clear whether he looked at images of girls slightly younger than his age or not.
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for images of girls who appeared to be eight through twelve years old. He further
testified that he had neither sent nor received email messages containing
pornographic images.
Jacob Saunstare was also called by the defense. He testified that he often
accessed the internet at the Kimlers’ house, and that he used the Kimlers’ internet
access to view pornography, occasionally with Randy’s help. However, he
testified that he never accessed any child pornography. He also testified that he
never sent or received child pornography over the internet while at the Kimlers’
house. Finally, on cross-examination he acknowledged that he did not have the
passwords to any of the Kimlers’ email accounts.
Other than Eric, Samantha, and Jacob, none of the other individuals
identified by the defense, through Eric, as having access to the Kimlers’ internet
connection, was called to testify.
At the close of the government’s case the court dismissed Counts 8 and 9,
two of the date-specific counts of distribution of images of minors engaged in
sexually explicit conduct, for lack of supporting evidence. The jury acquitted
Kimler of one count of distribution of child pornography (Count 3). Kimler was
convicted on the remaining counts of the indictment—one count of receipt or
distribution of images of minors engaged in sexually explicit conduct (Count 1);
one count of possession of images of minors engaged in sexually explicit conduct
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(Count 2); and four counts of distribution of images of minors engaged in
sexually explicit conduct (Counts 4, 5, 6 and 7).
At sentencing, the district court found that some of the images depicted
adult males engaging in anal or vaginal intercourse with prepubescent minors.
The court concluded that, because the conduct in the images would cause the
prepubescent children pain and humiliation, these images qualified as depictions
of sadistic conduct under USSG §2G2.2(b)(3). Accordingly, the court increased
the guideline offense level by four levels. The court also increased the guideline
offense level by two levels for possession of images of prepubescent minors.
II. Contentions
Kimler raises seven issues on appeal, as follows: (1) Section 2252 is
unconstitutional as applied because his activities were solely intrastate and:
(a) there was no showing of a substantial effect on interstate commerce; and
(b) merely having a connection to the internet does not, by itself, establish the
interstate commerce element of the statute; (2) the evidence at trial was
insufficient to establish that he was the one receiving, distributing or possessing
the child pornography found on the family computer; (3) the evidence presented at
trial was insufficient to prove that the images he possessed, received, and
distributed depicted real children; (4) the district court erred in enhancing
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Kimler’s sentence for possession of images of prepubescent children without
expert testimony on the matter; (5) the district court erred in enhancing Kimler’s
sentence for possession of sadistic images because vaginal or anal penetration of
a minor alone does not qualify as sadistic conduct, and expert testimony is
necessary to justify an enhancement for sadistic conduct; (6) the condition of
Kimler’s supervised release requiring him to participate in a sex offender
treatment program is not reasonably related to the offenses he committed; and, (7)
the condition of supervised release requiring him to cooperate in the collection of
a sample of his DNA is not reasonably related to his offenses because: his
offenses are not qualifying offenses under the DNA Analysis Backlog Elimination
Act of 2000 (DNA Act), 42 U.S.C. 14135a, because they did not involve the
sexual abuse or exploitation of children; the DNA Act violates the Fourth
Amendment’s prohibition against unreasonable searches and seizures; and, the
DNA Act violates the doctrine of separation of powers. 6
6
Kimler argued for the first time in a supplemental authority letter pursuant
to Rule 28(j) of the Federal Rules of Appellate Procedure that cited only to
United States v. Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529
U.S. 598 (2000), that the DNA Act is an improper exercise of Congress’
Commerce Clause powers. This issue was not raised in either his opening brief or
his reply brief. We will not address issues not raised in the appellant’s opening
brief, especially where the arguments are based on authority that was readily
available at the time of briefing. See United States v. Bennett, 329 F.3d 769, 778
n. 7 (10th Cir. 2003); United States v. Sandia, 188 F.3d 1215, 1218 n.3 (10th Cir.
1999) (citing State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984, n. 7 (10th
(continued...)
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It is important to note that our review of the contentions relating to
Kimler’s conviction is significantly constrained by the lack of a full record on
appeal. As indicated in the recitation of facts, the core of the government’s case
resides in the sixty-nine exhibits taken from Kimler’s computer and introduced
into evidence by the government. Those exhibits show the persons, acts and the
interstate transportation of images which form the very basis of this case. Yet,
Kimler did not designate a single one of those exhibits for the record on appeal.
Furthermore, with respect to his conviction, he does not cite to, discuss, or
address his arguments to any specific exhibit. Since the basis for many of his
arguments is a claimed insufficiency of the evidence, the fact that a central part of
the record is not before us for review is virtually fatal to those contentions. See
United States v. Verduzco-Martinez, 186 F.3d 1208, 1215-16 (10th Cir. 1999)
(dismissing an appeal to the sufficiency of the evidence where the “majority of
the evidence” introduced by the government at trial was not designated by the
appellant as part of the record on appeal). And, we have no duty to search
through the trial record to find support for an appellant’s arguments. United
States v. Rodriguez-Aguirre, 108 F.3d 1228, 1237 n.8 (10th Cir. 1997).
6
(...continued)
Cir. 1994)); United States v. Jenkins, 904 F.2d 549, 554 n.3 (10th Cir. 1990).
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It also bears noting at the outset that Kimler does not dispute the evidence
that every transmission from and to his computer necessarily traveled interstate
via telephone lines, or that he received images sent via the internet across state
lines, including transmissions from the United Kingdom.
Having noted the state of the record on appeal and the limits of Kimler’s
arguments, we turn now to the arguments themselves.
DISCUSSION
I. Sufficiency of the Evidence: Commerce Clause; Proof
that Images Stored on Kimler’s Computer Came From the
Internet
Kimler makes alternative arguments regarding the images taken from his
computer and introduced by the government at trial. Proceeding on the premise
that the activities in question were purely intrastate, 7 Kimler contends that the
statute, as applied, is an unconstitutional exercise of the Commerce Clause power
because: (a) there was no evidence that interstate commerce was substantially
7
For example, Kimler argues that the government was unable to identify
any of the child victims as residing outside the state of Kansas and therefore we
must conclude that his activity was entirely intrastate. Appellant’s Br. at 12, 18.
As we make clear below, this argument misses the point. The residence of the
children depicted is not dispositive of the nature of the activity. Even if all of the
children in the pictures happen to reside in the state of Kansas, Kimler’s activity
would still be interstate if, as the evidence at trial established, he sent and
received the images in interstate commerce over the internet.
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affected, and (b) the mere fact that he had internet access, without more, cannot
satisfy the interstate commerce count of the statute, citing for both propositions,
United States v. Lopez, 514 U.S. 549 (1995); United States v. Morrison, 529 U.S.
598 (2000); United States v. Corp, 236 F.3d 325 (6th Cir. 2001); United States v.
Rodia, 194 F.3d 465 (3rd Cir. 1999); and United States v. Paredes, 950 F. Supp.
584 (S.D.N.Y. 1996).
Alternatively, he argues that there was insufficient evidence to establish
that the images stored on his computer’s hard drive were downloaded from the
internet. See United States v. Henriques, 234 F.3d 263 (5th Cir. 2000); United
States v. Wilson, 182 F.3d 737 (10th Cir. 1999).
When assessing a challenge to the sufficiency of the evidence, “we review
the record de novo, viewing the evidence in the light most favorable to the
government and asking whether a reasonable jury could find the defendant guilty
beyond a reasonable doubt.” United States v. Campos, 221 F.3d 1143, 1151 (10th
Cir. 2000).
These contentions by Kimler both ignore and misconstrue the evidence in
this case. As set out above, there was sufficient direct evidence, even in the
abbreviated record before us, that, using his computer, Kimler received and
transmitted proscribed images over the internet across state lines via telephone
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wires, and that those computer images were the ones stored on his computer’s
hard drive.
As we have emphasized, Kimler does not address his argument to a single
one of the dozens of exhibits introduced in this case, along with testimony,
showing actual interstate trafficking in the proscribed images over the internet.
Kimler also does not argue that such actual interstate activity is not in interstate
commerce, nor could he. See, e.g., United States v. Runyan, 290 F.3d 223, 239
(5th Cir.) (holding that “transmission of photographs by means of the Internet is
tantamount to moving photographs across state lines and thus constitutes
transportation in interstate commerce”), cert. denied, 123 S. Ct. 137 (2002);
United States v. Schaffner, 258 F.3d 675, 679-83 (7th Cir. 2001) (holding that
evidence of transport of child pornography across states lines establishes a
sufficient nexus to interstate commerce); see also United States v. Kammersell,
196 F.3d 1137, 1138-39 (10th Cir. 1999) (holding that Congress could regulate an
instant message that was both sent and received in Utah where there was evidence
that en route from the sender to the recipient the message traveled to Virginia
over ordinary telephone lines).
Similarly, Kimler does not contest the fact that every transmission from his
computer via the internet necessarily crossed state lines. Thus, based on the
foregoing, Kimler’s Commerce Clause argument is irrelevant and the cases he
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cites are likewise inapposite. 8 There was more than sufficient evidence from
which the jury could conclude beyond a reasonable doubt that the interstate
commerce element of the statute was constitutionally applied.
II. Sufficiency of the Evidence
Kimler next argues that the evidence was insufficient to support the jury’s
conclusion that he was the one receiving, distributing, and possessing the images
of child pornography, since others had access to his computer. Sufficiency of the
evidence is a legal issue that we review de novo, affirming the district court
unless no jury, when presented with the evidence introduced at trial together with
the reasonable inferences therefrom, could find the defendant guilty beyond a
reasonable doubt. Campos, 221 F.3d at 1151.
As indicated above, there was evidence that Kimler not only had access to
all of the email accounts at issue in this case, but that he routed material through
8
For example, Kimler relies extensively on the Sixth Circuit’s decision in
United States v. Corp, 236 F.3d 325 (6th Cir. 2001), for the proposition that
“simple use of the computer [is not] enough to meet the jurisdictional element of
[2252].” Appellant’s Reply Br. at 2; see Appellant’s Br. at 11-12, Appellant’s
Reply Br. at 1-3. Corp does not stand for the proposition for which Kimler cites
it; it is also factually unrelated to this case. The defendant in Corp took
photographs of his 17-year-old girlfriend engaging in explicit sexual conduct with
his 26-year-old wife and kept the images in a photo album in his home. Corp did
not involve the use of a computer or the internet, but rather involved purely
intrastate conduct.
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Karen’s and Samantha’s accounts because he did not know how to send images
directly from his account. Furthermore, though others in his family also had
access to some of the relevant email accounts, they testified that they did not send
images of child pornography via email. Additionally, the various friends and
neighbors who occasionally accessed the internet at the Kimlers’ house did not
have the passwords to the email accounts used to send and receive the images at
issue here. Finally, Kimler received many of the images underlying his
conviction at his personal email address. This evidence, which Kimler does not
contest, supports the “plausible inference” that Kimler was the one sending,
receiving and possessing the images of minors engaged in sexually explicit
conduct at issue in this case. See United States v. Taylor, 113 F.3d 1136, 1145
(10th Cir. 1997) (defining standard in joint occupancy and constructive
possession cases). Therefore, a reasonable jury could have concluded that Kimler
was the one receiving, possessing, and distributing the images of minors engaged
in sexually explicit conduct that were found on the family computer.
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III. Does the Supreme Court’s Opinion in Ashcroft v. Free Speech
Coalition Require Expert Testimony to Establish that Images
Depict Real Rather than Computer Generated “Virtual”
Children?
Kimler next contends that the Supreme Court’s recent decision in Ashcroft
v. Free Speech Coalition, 535 U.S. 234 (2002), requires either direct evidence of
the identity of children in the proscribed images or expert testimony that the
images depicted are those of real children rather than computer generated
“virtual” children. There was no evidence in this case identifying the children
depicted in the images that are the subject of the charges against Kimler. 9
Accordingly, the issue is whether Free Speech Coalition laid down a categorical
rule of evidence applicable to cases such as this, requiring expert testimony in all
instances to prove that proscribed depictions of children are actually those of real
rather than virtual children.
Kimler raises this issue for the first time on appeal. However, he contends
that the plain error standard of review does not apply, and that the normal
sufficiency of the evidence standard should apply because he made a Rule 29
motion to dismiss at trial.
9
Citing repeatedly to Agent Earl’s testimony, see R. Vol. III at 82, Kimler
argues that the government witness could not “identify the images believed to be
child pornography as being actual child victims.” Appellant’s Br. at 18. The
testimony he referred to, however, dealt with whether Agent Earl could identify
the individual children depicted, not whether he could identify the images as
depicting children.
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But, Kimler’s motion to dismiss was specifically limited to the interstate
commerce issue. R. Vol. II at 139-40; R. Vol. III at 161-63, 239. Where a Rule
29 motion to dismiss has been made on specific grounds, “all grounds not
specified in the motion are waived.” United States v. Chance, 306 F.3d 356, 369
(6th Cir. 2002); see United States v. Ziddell, 323 F.3d 412, 421 (6th Cir. 2003);
United States v. Herrera, 313 F.3d 882, 884 (5th Cir. 2002) (en banc) (per
curiam); United States v. Belardo-Quinones, 71 F.3d 941, 945 (1st Cir. 1995);
United States v. Dandy, 998 F.2d 1344, 1356-57 (9th Cir. 1993); see also Charles
Alan Wright, Federal Practice and Procedure: Criminal 3d § 469 at 321-22 (“[I]f
the defendant has asserted specific grounds in the trial court as the basis for a
motion for acquittal, he or she cannot assert other grounds on appeal.”).
Accordingly, because Kimler is deemed to have waived this issue, we will
not address it on appeal “except for a review for plain error resulting in manifest
injustice.” 10 United States v. Chavez-Marquez, 66 F.3d 259, 261 (10th Cir.
1995); see also United States v. Sherod, 960 F.2d 1075, 1077 (D.C. Cir. 1992);
Wright, § 469 at 321. Under this standard, Kimler “must show: (1) an error, (2)
that is plain, which means clear or obvious under current law, and (3) that affects
10
Although we have noted that “review under the plain error standard . . .
and a review of sufficiency of the evidence usually amount to largely the same
exercise,” United States v. Duran, 133 F.3d 1324, 1335 n.9 (10th Cir. 1998), we
believe that the issue presented by this case is best analyzed using the plain error
framework. However, we would reach the same conclusion under either standard.
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substantial rights. If he satisfies these criteria, this Court may exercise discretion
to correct the error if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Scull, 321 F.3d 1270, 1277
(10th Cir. 2003) (citation and quotation omitted).
In Free Speech Coalition the Supreme Court declared unconstitutional two
statutory provisions—neither of which is part of the statutory charges against
Kimler—which were enacted as part of the Child Pornography Prevention Act of
1996 (CPPA), Pub. L. 104-208, §§ 121(4)(5), September 30, 1996, 110 Stat.
3009-26. Free Speech Coalition, 535 U.S. at 256, 258. Kimler relies only on the
first, 18 U.S.C. § 2256(8)(B). That provision has the effect of criminalizing
sexually explicit images that appear to depict minors, but were generated by
computer imaging without using any real children. 11 Id. at 241.
This and other circuits have made it clear that the holding in Free Speech
Coalition is limited to the constitutionality of §§ 2256(8)(B) and 2256(8)(D)—the
CPPA definitions which prohibit possessing and distributing images which were
not produced using real children. See United States v. Pearl, 324 F.3d 1210, 1213
11
At the time of Kimler’s conviction, § 2256(8) defined child pornography
as, “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 . . .
(B) such visual depiction is, or appears to be, of a minor engaging in sexually
explicit conduct”) (emphasis added).
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(10th Cir. 2003) (noting that 18 U.S.C. § 2256 contained both constitutional and
unconstitutional definitions of “child pornography”), cert. denied, 2003 WL
21184530 (U.S. June 16, 2003) (No. 02-10597); United States v. Kelly, 314 F.3d
908, 911 (7th Cir.), cert. denied, 123 S. Ct. 1923 (2003); United States v.
Richardson, 304 F.3d 1061, 1063-64 (11th Cir. 2002), cert. denied, 123 S. Ct. 930
(2003); United States v. Hersh, 297 F.3d 1233, 1254 n.31 (11th Cir. 2002), cert.
denied, 123 S. Ct. 1319 (2003); United States v. Bender, 290 F.3d 1279, 1282 n.2
(11th Cir.), cert. denied, 123 S. Ct. 571 (2002).
Despite that fact, Kimler argues that Free Speech Coalition, at least
implicitly, also laid down the rule of evidence described above, i.e., the absolute
requirement that, absent direct evidence of identity, expert testimony is required
to prove that the prohibited images are of real, not virtual, children. He cites no
authority for that proposition, and there is no pronouncement in Free Speech
Coalition to that effect.
Rather, Kimler points to Congressional Findings cited by the Court in its
discussion, that technological advances have made it “possible to create realistic
images of children who do not exist.” Free Speech Coalition, 535 U.S. at 240.
And, he emphasizes representations made by the government to the Court that it
has become difficult to meet the burden of proof in cases involving prohibited
images because of such technological advances.
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What Kimler does not note, however, is direct language by the Court that
imaging technology might be good and getting better, but it is implausible to
conclude that it has actually arrived at the point of indistinguishability.
The hypothesis is 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. at 254.
We conclude that Free Speech Coalition, did not establish a broad,
categorical requirement that, in every case on the subject, absent direct evidence
of identity, an expert must testify that the unlawful image is of a real child. Juries
are still capable of distinguishing between real and virtual images; and
admissibility remains within the province of the sound discretion of the trial
judge. The only two circuits to have considered the issue take the same position.
United States v. Deaton, 328 F.3d 454, 455 (8th Cir. 2003) (per curiam) (citing
United States v. Vig, 167 F.3d 443, 449-50 (8th Cir. 1999)); United States v.
Hall, 312 F.3d 1250, 1260 (11th Cir.), cert. denied, 123 S. Ct. 1646 (2002).
In any event, even if, arguendo, a new expert testimony rule was created by
Free Speech Coalition, so that there was error in the introduction of evidence in
this case, such a rule certainly is not plain, as required by the plain error standard
of review. The defects in Kimler’s argument are further aggravated by his failure
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to designate the pertinent exhibits for us to review, his failure to cite any specific
exhibit, and his failure to connect his argument to any specific exhibit. For all the
reasons set out above, we conclude that no reversible error occurred by admission
of the exhibits in question.
IV. Sentence Enhancements
At sentencing the district court imposed multiple increases to the guidelines
base offense level applicable to Kimler’s offense. Only two of the adjustments
are at issue in this appeal: a two-level increase pursuant to USSG §2G2.2(b)(1),
because the material involved prepubescent minors; and, a four-level increase
pursuant to USSG §2G2.2(b)(3), for materials that portrayed sadistic or
masochistic conduct.
Kimler focuses his argument mostly on the latter adjustment, arguing that it
was erroneously applied because the pictures in question showed no conduct
beyond that already covered by the statutory definitions for the offense of
conviction. He also contends that the adjustment is inapplicable here in the
absence of a definition of sadism in the guidelines.
Additionally, Kimler argues that neither of the adjustments in question was
proper because the government did not produce experts to testify, respectively:
(1) that, as to subsection (b)(3), the images depicted the infliction of pain or
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violence; and (2) that, as to subsection (b)(1), the images were those of
prepubescent children. “We review the district court’s interpretation and
application of the Sentencing Guidelines de novo.” United States v. Martinez-
Villalva, 232 F.3d 1329, 1332 (10th Cir. 2000).
In support of his first argument, Kimler points to the fact that § 2252
applies to images that depict “sexually explicit conduct” of a minor, defined in
§ 2256(2) as “sexual intercourse, including genital-genital, oral-genital, anal-
genital, or oral-anal, whether between persons of the same or opposite sex.” 18
U.S.C. § 2256(2)(A). He contends that the district court applied the enhancement
under §2G2.2(b)(3) to that exact same conduct: anal or vaginal penetration of the
minors depicted. Thus, he reasons, the result is an unlawful increase in
punishment for the same conduct already punished under the statute itself.
We are unpersuaded. The district court’s findings are based on facts not
specified in § 2256(2). The district court found that some of the images depict
anal or vaginal penetration of prepubescent children by adults causing pain and
humiliation, stating:
The court concludes that the some [sic] of the images submitted by
the Government are sufficient to qualify for this enhancement,
particularly those showing adults engaging in vaginal or anal
intercourse with prepubescent minors. The court concludes that one
or more such depictions in this case portrays “sadistic conduct”
within the meaning of the guideline, in that the depictions include
and are intended to portray the infliction of pain and humiliation on
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very young minor victims as a means of giving sexual gratification to
individuals with pedophilic tendencies.
Mem. and Order at 2, R. Vol. I, tab 46. We agree with those findings and
conclusions by the court, and conclude that it did not err in imposing the
enhancement.
Kimler next contends that the district court erred in enhancing his sentence
for sadism without expert testimony on the matter. Kimler cites no case in
support of this argument. To the contrary, the Fifth and Eleventh Circuits have
held that expert testimony is not required to justify an enhancement under
2G2.2(b)(3). United States v. Lyckman, 235 F.3d 234, 239 n. 22 (5th Cir. 2000)
(“One hardly requires a medical degree to ascertain that vaginal intercourse with
an adult male would involve pain, both physical and emotional, for a young
girl.”); United States v. Caro, 309 F.3d 1348, 1352 (11th Cir. 2002) (“[W]e hold
that the district court erred in its interpretation that, in order to support a sadistic
conduct enhancement, the government is required to present expert medical
testimony.”); see also United States v. Delmarle, 99 F.3d 80, 83 (2nd Cir. 1996)
(holding that “it was within the court's discretion to conclude that the subjection
of a young child to a sexual act that would have to be painful is excessively cruel
and hence is sadistic within the meaning of 2G2.2(b)(3)”). We agree with those
authorities, and conclude that expert testimony was not required.
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Finally, Kimler argues that in order to apply the two-level enhancement
under 2G2.2(b)(1), expert testimony was required to prove that the images in
question depicted prepubescent children. He cites no case holding that it is error
for a district court to determine that an image depicts a prepubescent child
without first hearing expert testimony on the matter.
After reviewing selected trial exhibits provided by the government at
sentencing, R. Vol. IV at 14-16, 21, the district court overruled Kimler’s
objection, stating that “[c]ommon knowledge and experience is generally
sufficient to identify a minor as prepubescent. Given the images in question, the
court concludes that the enhancement is appropriately applied in this case.” Mem.
and Order at 3, R. Vol. I, tab 46; cf. United States v. Katz, 178 F.3d 368, 373 (5th
Cir. 1999) (noting that “whether the age of a model in a child pornography
prosecution can be determined by a lay jury without the assistance of expert
testimony [] must be determined on a case by case basis”). We agree.
Defense counsel essentially conceded the point, stating at the sentencing
hearing that, “the Court would probably be able to [determine whether the images
depicted prepubescent children] on its own.” R. Vol. IV at 11; see also Katz, 178
F.3d at 373.
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The record does contain the few trial exhibits which the government made
available to the court at sentencing in support of the adjustment in question. 12 We
have examined those exhibits and have no doubt that some of the images depict
children who were so obviously prepubescent that expert testimony would not
have been necessary or helpful to the court. The images themselves provided
sufficient evidence of prepubescence to support the sentence enhancement.
V. Conditions of Supervised Release
Mr. Kimler also disputes conditions of his supervised release requiring him
to cooperate in the collection of a DNA sample and to participate in a sex
offender treatment program. We discuss them in turn.
A. Cooperation in the Collection of a DNA Sample
In addition to the standard conditions of supervision applicable to Kimler
during the post-incarceration three-year period of his supervised release, the
district court imposed twenty special conditions. The first such condition requires
that “[t]he defendant shall cooperate in the collection of DNA, as directed by the
probation officer.” J. at 5, R. Vol. I, tab 47.
12
After the opening brief was filed, the government filed a motion to
supplement the appellate record with several images, which it selected from the
trial exhibits and submitted to the district court at sentencing. That motion was
granted and the exhibits were received under seal as Supp. Vol. I of the record on
appeal.
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Kimler challenges this condition on the following four grounds, which we
review de novo because they raise solely legal questions: (1) his offenses are not
qualifying offenses under the DNA Analysis Backlog Elimination Act of 2000
(DNA Act), 42 U.S.C. 14135a, because they did not involve the sexual abuse or
exploitation of children; (2) this condition of supervised release is not reasonably
related to his offenses; (3) the DNA Act violates the Fourth Amendment’s
prohibition against unreasonable searches and seizures; and (4) the DNA Act is
unconstitutional because it violates the doctrine of separation of powers.
18 U.S.C. § 3583(d), as amended by Pub. L. 106-546, § 7(b), Dec. 19,
2000, 114 Stat. 2734, provides in pertinent part as follows:
(d) Conditions of supervised release.— . . . The court shall order,
as an explicit condition of supervised release, that the defendant
cooperate in the collection of a DNA sample from the defendant, if
the collection of such a sample is authorized pursuant to section 3 of
the DNA Analysis Backlog Elimination Act of 2000.
18 U.S.C. § 3583(d) (emphasis added).
In turn, section 3 of the DNA Analysis Backlog Elimination Act of 2000,
Pub. L. 106-546, § 3, Dec. 19, 2000, 114 Stat. 2728, codified as 42 U.S.C.
§§ 14135a(a)(2) and (d)(B), provide in pertinent part as follows:
(2) From individuals on release, parole, or probation
The probation office responsible for the
supervision under Federal law of an individual on
probation, parole, or supervised release shall collect a
DNA sample from each such individual who is, or has
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been, convicted of a qualifying Federal offense (as
determined under subsection (d)) . . . .
....
(d) Qualifying Federal offenses
....
(B) An offense relating to . . . sexual exploitation or
other abuse of children (as described in chapter 110 of
such title, sections 2251 through 2252) . . . .
42 U.S.C. §§ 14135a(a)(2) and (d)(B) (emphasis added).
These mandatory statutory provisions, passed in 2000, were not reflected in
the Sentencing Guidelines until the November 2002 edition, which, as the statutes
direct, make the collection of DNA samples a mandatory condition of supervised
release. USSG §5D1.3(a)(8) (2002 ed.). Inexplicably, the briefs of both parties
to this appeal proceed in large part on the assumption that the 2001 edition of the
Guidelines apply to this condition, making the collection of DNA samples
discretionary and thus subject to the conditions set out in USSG §5D1.3(b). See
United States v. Walser, 275 F.3d 981, 987-88 (10th Cir. 2001), cert. denied, 535
U.S. 1069 (2002).
However, since statutes trump guidelines when the two conflict, United
States v. Heckard, 238 F.3d 1222, 1237 (10th Cir. 2001), the statutory provisions
set out above govern our resolution of Kimler’s appeal on this issue. 13 Citing the
13
No ex post facto or any similar objection is raised in the briefs to the
application of these statutes to Kimler. To the contrary, Kimler directs various
(continued...)
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statute, the district court overruled Kimler’s objections to the DNA condition of
supervision. R. Vol. IV at 27; Order at 2, R. Vol. I, tab 52.
On appeal, Kimler argues first that § 14135a(d)(1)(B) is inapplicable since
it is directed only at those who engage in the sexual exploitation or other abuse of
children, and that his conduct did not amount to exploitation or abuse.
Appellant’s Br. at 25. He asserts the “Congress could not have intended such a
broad interpretation to permit application of the DNA collection procedures to
one convicted of simply having such depictions come through one’s computer.”
Id. at 25-26.
We agree with the district court that the argument is resolved by the plain
language of § 14135a(d)(1)(B) which expressly covers offenses under § 2252.
Furthermore, the statutory language expansively refers to conduct “relating to”
exploitation and abuse. The Supreme Court has made it clear that “[t]he
distribution of photographs and films depicting sexual activity by juveniles is
intrinsically related to the sexual abuse of children.” New York v. Ferber, 458
U.S. 747, 759 (1982). “[T]he materials produced are a permanent record of the
13
(...continued)
arguments to § 14135a on other grounds, implicitly recognizing its applicability
generally. And, § 14135a(2), by its terms, applies to any individual “who is or
has been convicted of a qualifying Federal offense . . . .”
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children's participation and the harm to the child is exacerbated by their
circulation.” Id. (emphasis added).
[P]ornography poses an even greater threat to the child victim than
does sexual abuse or prostitution. Because the child's actions are
reduced to a recording, the pornography may haunt him in future
years, long after the original misdeed took place. A child who has
posed for a camera must go through life knowing that the recording
is circulating within the mass distribution system for child
pornography.
Id. at 759 n. 10 (quotation omitted).
In a brief paragraph without supporting authority or a clear statement of his
argument, Kimler next argues that the DNA Act is unconstitutional as an
unreasonable, warrantless search under the Fourth Amendment. We disagree.
The DNA Act, while implicating the Fourth Amendment, is a reasonable search
and seizure under the special needs exception to the Fourth Amendment’s warrant
requirement because the desire to build a DNA database goes beyond the ordinary
law enforcement need. See, e.g., Shaffer v. Saffle, 148 F.3d 1180, 1181 (10th
Cir. 1998); Schlicher v. (NFN) Peters, I & I, 103 F.3d 940, 943 (10th Cir.1996);
Boling v. Romer, 101 F.3d 1336, 1340 (10th Cir. 1996); Miller v. United States
Parole Comm’n, 2003 WL 1992428, at **7-10 (D. Kan. April 15, 2003); United
States v. Sczubelek, 255 F. Supp. 2d 315, 319-23 (D. Del. 2003); see also Roe v.
Marquette, 193 F.3d 72, 77-80 (2d Cir. 1999) (upholding Connecticut DNA
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collection statute under “special needs” doctrine); but see United States v. Miles,
228 F. Supp. 2d 1130, 1135-38 (E.D. Ca. 2002). 14
Kimler also briefly argues, without any supporting case authority, that the
DNA Act violates the principle of separation of powers because Congress is
ordering the judicial branch to impose a particular condition of supervised
release. The argument is meritless.
Finally, both Kimler and the government address various arguments to
whether or not DNA collection meets the Walser and related requirements for the
imposition of discretionary conditions of supervision. As explained above, the
mandatory nature of the governing statutes renders such a discussion irrelevant.
However, reviewing for abuse of discretion, where appropriate, see United States
v. Zanghi, 209 F.3d 1201, 1203 (10th Cir. 2000), and de novo with respect to the
interpretation of the statutes and guidelines, see United States v. Archuletta, 231
F.3d 682, 684-85 (10th Cir. 2000) (guidelines), and United States v. Gigley, 213
F.3d 503, 505 (10th Cir. 2000) (statute), we hold, alternatively, that the district
14
The Miles court found that the DNA Act is unconstitutional in light of the
Supreme Court’s decisions in City of Indianapolis v. Edmond, 531 U.S. 32
(2000), and Ferguson v. City of Charleston, 532 U.S. 67 (2001). The court noted
that the DNA Act applies only to convicted felons, not free citizens, but found
this to be a distinction without a difference. We disagree. As the Supreme Court
recently noted, “[a] broad range of choices that might infringe constitutional
rights in free society fall within the expected conditions . . . of those who have
suffered a lawful conviction.” McKune v. Lile, 536 U.S. 24, 36 (2002).
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court did not err in finding that all the applicable conditions, including
deterrence, are satisfied relative to the DNA collection requirement. See Order at
2, R. Vol. I, tab 52.
B. Sex Offender Treatment Program
USSG § 5D1.3(d)(7) (2001 ed.) recommends the discretionary imposition
of the following special condition of supervised release:
(7) Sex Offenses
If the instant offense of conviction is a sex offense, as
defined in §5D1.2 (Term of Supervised Release) – a
condition requiring the defendant to participate in a
program approved by the United States Probation Office
for the treatment and monitoring of sex offenders.
USSG § 5D1.3(d)(7) (emphasis added).
Application Note 1 to §5D1.2 defines a sex offense as “an offense,
perpetrated against a minor, under . . . chapter 110 of [Title 18 of the United
States Code], not including a recordkeeping offense.” USSG §5D1.2, comment.
(n.1). Section 2252 is part of chapter 110; therefore, offenses under 18 U.S.C.
§ 2252 are qualifying offenses for the “recommended” imposition of the condition
that Kimler participate in a sex offender treatment program.
Kimler’s contention that §5D1.3(d)(7) does not apply because he did not
actually perpetrate an offense against a minor as the application note requires,
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Appellant’s Br. at 28, is meritless for the same reasons set out above relating to
DNA collection.
As Kimler acknowledges, the district court ruled that “the child
pornography offenses in this case were ‘perpetrated against a minor’ within the
meaning of the guideline defining ‘sex offense’.” Order at 3, R. Vol. I, tab 52.
That ruling and the imposition of the requirement that Kimler participate in a sex
offender treatment program are not erroneous.
CONCLUSION
For the aforementioned reasons, the Kimler’s conviction and sentence are
AFFIRMED.
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