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.
ON PETITION FOR REHEARING
September 27, 2004
*
Of the Northern District of California, sitting by designation.
Per Curiam. 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 habeas court correctly held that the trial
court did not find every 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).
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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,
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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
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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.
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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 did not 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 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.
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. Our review here, though,
concerns the findings of fact the district court actually made.
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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
U.S. 747, 761-62 (1982) (quoting Giboney v. Empire Storage & Ice
Co., 336 U.S. 490, 498 (1949))).
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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
Speech Coalition, 535 U.S. at 249-50. The government presented two
types of arguments to show that the prohibition on virtual
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).
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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
that it may encourage pedophiles to engage in illegal conduct."
Id. at 253-54.
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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
material that satisfied only § 2256(8)(B) could not be punished.4
Id. at 256.
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.
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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 placed 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, as it "places certain kinds of
primary, private individual conduct beyond the power of the
criminal law-making authority to proscribe." Teague v. Lane, 489
U.S. 288, 311 (1989) (quoting Mackey v. United States, 401 U.S.
667, 675 (1971) (Harlan, J., concurring in part and dissenting in
part)).
It bears repeating that the government is not released
from its burden of proof by a defendant's failure to argue, or by
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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 burden of which should not be displaced to the defendant as an
affirmative defense. Cf. Free Speech Coalition, 535 U.S. at 256.
"Protected speech does not become unprotected merely because it
resembles the latter." Id. at 255. Instead, "[t]he Constitution
gives a criminal defendant the right to demand that [the
factfinder] find him guilty of all the elements of the crime with
which he is charged." United States v. Gaudin, 515 U.S. 506, 511
(1995). In the present case, that the children in the images are
real is an element of the crime; Hilton therefore had a right to
have the factfinder decide whether the children were real. Id.
The government urges that "a factual review compellingly
demonstrates that the images Hilton possessed were indeed of actual
children." The question before us, though, does not call for our
evaluation of the evidence but rather of what the trial court
actually found.5 The government advances one argument we must
address, namely, that in finding, according to Dr. Ricci's
testimony, that the images represented children rather than adults,
the trial court necessarily concluded as a matter of fact that the
children were real. According to the government, it is
5
Because the government failed effectively to preserve the issue
of harmless error review on appeal, we do not address that issue.
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"commonsense" that findings as to age based on the Tanner Scale
satisfy the further element of actuality:
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.
We cannot endorse the view that it is commonsense that
the trial court also found -- or must have found -- that the images
represented real children. Rather, it is plain to us that the
trial court found Hilton guilty of possessing images that appeared
to be children engaged in sexually explicit conduct. Under the
erroneous understanding at the time of conviction, possession of
child pornography could be punished criminally even if the depicted
children were artificial and real children were not involved in the
production of the images. Because the trial court did not make a
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finding of fact as to an essential element of the crime -- the
reality of the children represented in the images -- we affirm the
grant of habeas relief.
Affirmed.
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