United States v. Hilton

United States Court of Appeals
For the First Circuit

No. 00-2545

UNITED STATES OF AMERICA,

Appellee,

v.

DAVID HILTON,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]

Before

Boudin, Chief Judge,

Selya, Circuit Judge,

and Schwarzer,* Senior District Judge.

Peter E. Rodway with whom Rodway & Horodyski was on brief
for appellant.
F. Mark Terison, Senior Litigation Counsel, with whom Jay
P. McCloskey, United States Attorney, was on brief for the
United States.

*Of the Northern District of California, sitting by
designation.
 July 27, 2001

BOUDIN, Chief Judge. David Hilton was convicted in

federal district court in Maine on one count of possessing child

pornography. Hilton now appeals, challenging the

constitutionality of the statute under which he was convicted,

the Child Pornography Prevention Act of 1996 ("CPPA"), 18 U.S.C.

§ 2252A(a)(5)(B) (Supp. II 1996), and the sufficiency of the

government’s evidence at trial. In an added twist, Hilton

claims that he collected the pornographic material at the

government’s behest. Finally, Hilton argues that the district

court erred in its application of the sentencing guidelines.

In November 1995, David Hilton contacted the FBI and

said that he had received child pornography over the Internet

and wished to turn it over to the government to assist in the

enforcement of child pornography laws. Over the next three

months, Hilton met with FBI Special Agent Thomas Honan on three

or four occasions, at which time he provided Honan with

pornographic materials on computer disc and, on one occasion,

Honan copied material with Hilton's assistance directly from

Hilton's computer.

During this same period, Honan authorized Hilton to

save any unsolicited materials that he received in order to turn

-2-
it over to the FBI. However, in February 1996, the FBI

concluded that the material Hilton was providing was duplicative

and Honan informed Hilton that he should no longer collect

information for the FBI. In addition, Honan reminded Hilton

that the possession of child pornography was illegal.

In August 1997, Hilton contacted the United States

Customs Service and offered to help the agency investigate child

pornography. On October 29, Hilton met with two Customs agents,

provided them with a computer diskette that contained

pornographic images, and demonstrated how he posed as a young

girl in Internet "chat rooms." The agents reminded Hilton that

possession of child pornography was illegal, told him he could

not collect any further materials unless a law enforcement

official was present, and twice asked him if he had any other

materials (to which he replied "no" both times). The agents

arranged another meeting with Hilton for early November.

Prior to the follow-up meeting and for a variety of

reasons, the customs agents became suspicious of Hilton's

motives. On November 7, agents executed a search warrant of his

apartment, which revealed an extensive collection of adult

pornography and hundreds of pictures of nude children. Hilton's

computer, computer-related documents, and computer disks and

storage tapes were seized. Importantly for this appeal, agents

-3-
found three sets of what the government alleges is child

pornography: seven images on a Sony computer backup tape, four

images on a single sheet of paper in a gray box near Hilton's

computer, and three images on Hilton's computer hard drive.

After indictment in December 1997, Hilton moved to

dismiss the indictment based on constitutional grounds, and the

district court granted Hilton’s motion, finding that the CPPA

was both overbroad and so vague as to violate due process.

United States v. Hilton, 999 F. Supp. 131, 136-37 (D. Me. 1998).

On the government's appeal, this Court reversed, upholding the

Act’s constitutionality. United States v. Hilton, 167 F.3d 61,

77 (1st Cir.), cert. denied, 528 U.S. 844 (1999). Thereafter,

a superceding indictment was issued and Hilton, having waived

his right to a jury, was convicted after a three-day bench

trial. United States v. Hilton, No. 97-78-P-C, 2000 WL 894679,

at *10 (D. Me. June 30, 2000).

At sentencing, the district court applied two two-level

enhancements to Hilton’s base offense level. The first

enhancement (which Hilton does not now contest) was applied

because Hilton possessed pornographic material depicting a

prepubescent minor or minor under the age of twelve. U.S.S.G.

§ 2G2.4(b)(1) (2000). The second was applied because the

district court concluded that Hilton possessed "ten or more

-4-
items" of child pornography. Id. at § 2G2.4(b)(2). The

district court also found that Hilton had not accepted

responsibility for his conduct and therefore was not entitled to

the corresponding two-level reduction in his base offense level.

Hilton was subsequently sentenced to 40 months’ imprisonment and

three years supervised release.

Hilton now appeals and asks us to vacate his conviction

and sentence. In reviewing his claims, we view the evidence in

the light most favorable to the verdict, United States v.

Hughes, 211 F.3d 676, 681 (1st Cir. 2000), reversing for

insufficient evidence only if no rational trier of fact could

have found a defendant guilty, United States v. Blasini-

Lluberas, 169 F.3d 57, 62 (1st Cir. 1999). We review questions

of law de novo and defer to the extent appropriate on mixed

questions of law and fact. In re Extradition of Howard, 996

F.2d 1320, 1327-28 (1st Cir. 1993).

Hilton begins with a broad attack on the CPPA's

constitutionality, but we have rejected this claim on Hilton's

earlier appeal. Hilton, 167 F.3d 61 at 76-77. Hilton asks that

we reconsider our prior holding in light of a Ninth Circuit

decision in Free Speech Coalition v. Reno, 198 F.3d 1083, 1097

(9th Cir. 1999), striking down part of the CPPA, cert. granted

sub nom. Ashcroft v. Free Speech Coalition, 121 S. Ct. 876 (Jan.

-5-
22, 2001), but we decline to do so, noting that the Ninth

Circuit struck down only those portions of the Act making

illegal possession of computer generated images of fictitious

children. Free Speech Coalition, 198 F.3d at 1097.

Next, Hilton challenges the sufficiency of the

government’s evidence at trial. Hilton first says that the

government failed to prove beyond a reasonable doubt that he

knowingly possessed three or more images of child pornography,

the minimum number required by the statute at the time of

Hilton's offense conduct.1 He argues that because there were so

many other images (between 2,000 and 3,000) on his computer hard

drive and various storage media, the government failed to prove

that he actually knew that some of the files contained child

pornography.

In convicting Hilton, the district court found it

necessary to rely only on the seven images on the backup tape,

which Hilton concedes were child pornography. Hilton is correct

that the government must prove that he knew that he possessed

the images in question. Hilton, 167 F.3d at 75. However, the

government did present sufficient evidence to prove that Hilton

1The statute was amended in 1998 to make it an offense to
possess a single sexually explicit image, Pub. L. 105-314, Title
II, § 203(a)(1), (b)(1), 112 Stat. 2978 (codified at 18 U.S.C.
§ 2252A(a)(4)(B), (5)(B) (2000)), but all of Hilton's conduct
occurred before the modification was adopted.

-6-
knew of the images on the tape. The critical testimony came

from Customs Agent Stephen Marx--an expert in computer

forensics.

Marx testified that four of the images on the Sony

backup tape (which also appeared on the sheet of paper located

in the gray box in Hilton's apartment) were the same as images

that Hilton had earlier turned over to the Customs Service at

their October 1977 meeting. Marx said that the files on the

backup tape had different creation dates than those turned over

during the October meeting, even though the images were

identical, and that one file also had a different name. Thus,

said the agent, the images had either been downloaded at

different times or the computer operator (Hilton) had manually

manipulated the files.

In either case, Hilton would have been aware of the

material contained in the files. See United States v. Hall, 142

F.3d 988, 997 (7th Cir. 1998). That Hilton knew what he was

downloading and saving is further supported by Hilton's

knowledge of computers (as illustrated by his demonstrations to

the agents during their meetings) and by his profession (an

electronics technician). Hilton presented no evidence to

counter these inferences, and his cross examination of Marx cast

no doubt on Marx's testimony. The district court did not err in

-7-
concluding that Hilton knowingly possessed the pornographic

images.

Hilton next argues that the government failed to prove

beyond a reasonable doubt that the images he possessed traveled

in interstate commerce. The government has this burden as to

each image necessary for conviction. United States v.

Henriques, 234 F.3d 263, 266 (5th Cir. 2000). Under the case

law, proof of transmission of pornography over the Internet or

over telephone lines satisfies the interstate commerce element

of the offense. United States v. Carroll, 105 F.3d 740, 742

(1st Cir.) (Internet), cert. denied, 520 U.S. 1258 (1997);

United States v. Gilbert, 181 F.3d 152, 158-59 (1st Cir. 1999)

(telephone).

Here, Agent Marx identified two factors to show that

the images in question had traveled in interstate commerce.

First, the files on the Sony backup tape were located in a so-

called "MIRC" subdirectory, which contained software used in

conjunction with Internet chat rooms. This, according to Marx,

made it "likely" that the images had been downloaded from the

Internet. Second, the time and date features of each of the

image files were "indicative" of files that had been transmitted

via modem. Modems are commonly used to link computers to

telephone lines.

-8-
 Hilton says that there was no evidence before the

district court that this is what modems do and he objects that

taking judicial notice was improper because (he says) "[t]he

meaning and operation of a modem is not within the range of

normal knowledge" and the court did not notify the parties of

its intention to take judicial notice. Rule 201 provides that a

court may take judicial notice of an "adjudicative fact" upon

two conditions: (1) that it is either "generally known" within

the area or easily determined from an indisputable source and

(2) that the parties have an opportunity to contest the taking

of notice, either before or after it is taken. Fed. R. Evid.

201.

Whether the definition of "modem" and the main function

of the device is an adjudicative fact within the meaning of the

rule is a nice question. "Adjudicative fact" is itself a fuzzy

concept (indeed, there is more than one usage), and Rule 201's

advisory committee notes do little more than borrow–-and may

well misconceive--Professor Davis' several formulations: e.g.,

"facts concerning the immediate parties." Compare Fed. R. Evid.

201(a) (Adv. Comm. Note) with Wright & Graham, Federal Practice

and Procedure: Evidence § 5103 (1977 & Supp. 2001). Whether

Hilton's computer contained a modem would be an adjudicative

fact; what a modem generally does is less easily categorized

-9-
because (among other problems) it is a fact but not really

peculiar to the case.2

In all events, this interesting, multi-faceted subject

(see Wright, supra) need not be pursued because even if we

assumed arguendo that what a modem does was (here) an

adjudicative fact, the district court's footnote description is

a correct dictionary definition and even now Hilton does not

dispute it. See Random House Dictionary of the English Language

1236 (2d ed. 1987) (defining a modem as "an electronic device

that makes possible the transmission of data to or from a

computer via telephone or other communication lines"). Indeed,

it is clear from the testimony that the district court, the

attorneys, and the witnesses understood the relationship of a

modem to the Internet and telephone lines. See Hilton, 2000 WL

894679 at *9 n.8. If there was error, it is patently harmless.

Hilton next says that Marx's "speculative testimony"

still does not constitute proof beyond a reasonable doubt of an

interstate nexus. But the government was not required to

provide "direct" evidence of interstate transmission, Blasini-

Lluberas, 169 F.3d at 62, and we cannot say that Marx's

2 In some contexts (but not all) a modem's functioning might
be a subject of reasonable dispute. Yet as a practical matter,
a large number of "background" facts are taken for granted in
the courtroom unless and until someone wants to challenge them.
Fed. R. Evid. 201(a) (Adv. Comm. Note).

-10-
unchallenged expert testimony was insufficient for a finding

that the images were transmitted over the Internet or telephone

lines. United States v. Czubinski, 106 F.3d 1069, 1074 n.5 (1st

Cir. 1997). Hilton's admitted modus operandi of receiving

pornography over the Internet further strengthens the

government's position.

Hilton asserts that the district court erred in

rejecting his claim of entrapment by estoppel or pursuant to

public authority. United States v. Smith, 940 F.2d 710, 715

(1st Cir. 1991) (entrapment), United States v. Baptista-

Rodriguez, 17 F.3d 1354, 1368 n.18 (11th Cir. 1994) ("public

authority"). Hilton says that in 1995 and 1996 Agent Honan

authorized Hilton to possess child pornography so long as the

images were turned over to the government and that the Customs

Internet web page similarly authorized possession of

pornographic images if they were delivered to law enforcement.

The district court rejected these claims in its

decision, and we agree with its analysis, Hilton, 2000 WL

894679, at *4-6. As to direct authorization, Agent Honan

admitted that he approved Hilton's possession of unsolicited

child pornography in 1995, but at his last meeting with Hilton

in February 1996, Honan told Hilton that the FBI no longer

required his assistance and that possession of child pornography

-11-
was illegal. Thereafter, Customs agents Booke and Marx repeated

to Hilton the latter warning. When pornographic material was

found in Hilton's possession on November 7, 1997, Hilton had to

know that he was not authorized to possess child pornography.

Hilton also says that statements on the Customs Service

web site seemingly authorized him to possess child pornography

and that he reasonably relied on those statements. The district

court found no "direct evidence to suggest that [Hilton] did in

fact rely on the information on the web site." Hilton, 2000 WL

894679, at *6 n.3; see also United States v. Achter, 52 F.3d

753, 755 (8th Cir. 1995) (requiring "reasonable reliance" on

government statements for public authority and entrapment by

estoppel claims); United States v. Burrows, 36 F.3d 875, 882

(9th Cir. 1994) (same). On appeal Hilton points to no evidence

that he actually relied on the web site. Mere awareness of the

web site's existence does not constitute reliance. See

Compagnie de Reassurance D'lle de France v. New England Reinsur.

Corp., 57 F.3d 56, 86 (1st Cir.), cert. denied, 516 U.S. 1009

(1995).

Absent actual reliance, we (like the district court)

need not decide whether the web site language lends itself to a

reasonable reliance defense. Without suggesting any view on

this issue, we think government counsel might wish to draw the

-12-
attention of the Customs Service to Hilton's claim, noting in

particular the "cash award" paragraph on the web site.

Lastly, Hilton challenges his sentencing. Principally,

he says that the district court improperly applied a two-level

enhancement for possession of ten or more items of child

pornography. U.S.S.G. § 2G2.4(b)(2).3 We review the district

court's interpretation of the guidelines de novo, United States

v. Austin, 239 F.3d 1, 4 (1st Cir. 2001), but its factual

determinations only if clearly erroneous, United States v.

Rosario-Peralta, 199 F.3d 552, 570 (1st Cir. 1999), cert.

denied, 121 S. Ct. 241 (2000).

Section 2G2.4(b)(2) calls for a two-level enhancement

if a defendant possessed "ten or more books, magazines,

periodicals, films, video tapes, or other items, containing a

visual depiction involving the sexual exploitation of a minor."

Although the district court did not state which items it

included in its "ten or more" calculation, to support the

enhancement the government identifies eleven "items" in its

brief that were offered in evidence at trial. According to its

count, the sheet of paper in the gray box was a single "item,"

3
Hilton also says that he was entitled to a two-level
reduction for acceptance of responsibility. U.S.S.G. § 3E1.1.
However, the district court's refusal of this reduction was well
grounded, and the issue does not warrant further discussion.

-13-
the Sony backup tape held seven files (each of which constituted

a separate "item"), and the computer hard drive held three more

files (each of which was also an "item").

Hilton reports that the district court erred by

counting each backup tape file as a single "item," and that the

three specified files on the hard drive do not satisfy the

guidelines' definition of child pornography and thus he did not

possess ten or more items. Even plausibly assuming in the

government's favor that we were to count each file as a single

item,4 we conclude--for reasons explained below--that two of the

three images on the hard drive do not constitute either pictures

involving the sexual exploitation of a minor or child

pornography as defined by the statute.

We begin with definitions. Assuming in all cases an

interstate nexus, possession of depictions of minors engaging in

sexually explicit conduct is made criminal by 28 U.S.C. §

2252(a)(4), the statute cross referenced in the guideline;

4Every circuit that has addressed the issue of whether an
individual file constitutes an item has agreed with the
government's position. United States v. Harper, 218 F.3d 1285,
1287 (11th Cir. 2000) (per curiam); United States v. Demerritt,
196 F.3d 138, 141 (2d Cir. 1999); United States v. Perreault,
195 F.3d 1133, 1135 (9th Cir. 1999); United States v. Hall, 142
F.3d 988, 997-99 (7th Cir. 1998); United States v. Wind, 128
F.3d 1276, 1278 (8th Cir. 1997). Although not applicable to
Hilton's case, the applicable guideline has recently been
amended to adopt this position. U.S.S.G. § 2G2.4 Application
Note (2000).

-14-
possession of child pornography is made criminal by 28 U.S.C. §

2252A(a)(5)(B), the statute under which Hilton was convicted.

In both cases, a depiction of sexually explicit conduct is

required and defined in the same way; the difference is that the

former statute is directed only to depictions of actual minors

while the latter includes them but extends also to those who

only appear to be minors or are fictitious creations but appear

real.

However, neither side has made anything of this

distinction which we note only to avoid confusion in future

cases. Both sides assume (at least by silence) that the

guideline applies, that the common definition of sexually

explicit conduct must be satisfied, and that there is no issue

here as to whether a depicted minor is real, apparent or

fictitious. Everything turns, then, on the phrase "sexually

explicit conduct" which the chapter's definition section defines

to include a "lascivious display of the genitals or pubic area

of any person." 18 U.S.C. § 2256(2)(E) (1994). There is no

claim by the government that the images in question qualify

under the other definitions of sexually explicit conduct in

subsections (A), (B), (C), or (D). Nudity in and of itself does

not constitute a "lascivious display." United States v.

Amirault, 173 F.3d 28, 33 (1st Cir. 1999).

-15-
 In its brief, the government goes to great lengths to

describe the three images from the hard drive in terms that

reflect the six-factor test we adopted in Amirault to help

determine whether or not an image is a "lascivious display of

the genitals." Id. at 31.5 However, as we stated in Amirault,

these factors, although "generally relevant," are not

comprehensive and each determination of whether an image

contains a lascivious display is necessarily case specific. Id.

at 32.

In this case, applying de novo review, id. at 32-33,

we conclude that two of three images do not constitute

lascivious displays of the genitals or pubic area. The first

image, government exhibit 48(b), depicts a female on a bed

partially covered by a sheet and holding a small flower.

5 The factors are:

(1) whether the genitals or pubic area are the focal
point of the image; (2) whether the setting of the
image is sexually suggestive (i.e., a location
generally associated with sexual activity); (3)
whether the child is depicted in an unnatural pose or
inappropriate attire considering her age; (4) whether
the child is fully or partially clothed, or nude; (5)
whether the image suggests sexual coyness or
willingness to engage in sexual activity; and (6)
whether the image is intended or designed to elicit a
sexual response in the viewer.

Amirault, 173 F.3d at 31 (internal citations omitted).

-16-
Although the setting is sexually suggestive, the subject's

genitalia are not visible and the pubic area is not the focus of

the picture. The subject's pose is not especially unnatural and

viewing the totality of the image we find that it does not

qualify as "lascivious."

The second image, government exhibit 48(i), also falls

short of the statutory requirement. Once again, the subject's

genitals and pubic area are covered by what appears to be

clothing or a sheet. In addition, the focus of the photo is not

on the subject's pubic area, nor is there anything in the

subject's pose or expression, or in the setting, which is

particularly lascivious or suggests sexual activity. Although

the subject's upper body is nude, the image as a whole does not

constitute child pornography within the definition of the

statute.

At oral argument, the government suggested for the

first time that in determining whether Hilton possessed ten or

more items we should not only look at the eleven images noted in

its brief, but also all of the other items that were on the

computer's hard drive and backup tape. But the government made

no specific mention of any other images in its brief, and there

is no indication in the trial record which, if any, other

-17-
viewable images were put in evidence or considered by the

district court at sentencing.

At the same time, it is far from clear that the

district court relied in any way on the two depictions that we

find were not child pornography. The district judge discussed

in his decision convicting Hilton only the seven images on the

backup tape, which based on the court's description were plainly

pornographic, a conclusion that Hilton has not challenged. At

sentencing, the court said only that in addition to the backup

tape, "there's a multitude of other items." The government

represents, albeit belatedly, that thousands of images were

seized from Hilton and support the "ten or more" finding.

Because on this record we cannot uphold the sentence,

the case must clearly be remanded for resentencing. This court

has authority to delineate the proceedings on remand. 28 U.S.C.

§ 2106. Given what has transpired, including the government's

initial reliance on the eleven images, we think that the

district court can follow either of two courses: either

resentence Hilton without the "ten or more" adjustment or

consider other images and determine anew whether the adjustment

is appropriate. If the latter course is followed, it would be

helpful for the district court to identify by exhibit numbers

the items relied upon.

-18-
 The judgment is affirmed, the sentence is vacated, and

the case is remanded for resentencing not inconsistent with this

opinion.

-19-