United States v. James , 55 M.J. 297 ( 2001 )

UNITED STATES, Appellee
v.
Terry W. JAMES, Machinist’s Mate First Class
U.S. Navy, Appellant
No. 00-0592
Crim. App. No. 99-0435
United States Court of Appeals for the Armed Forces
Argued February 6, 2001
Decided August 15, 2001
SULLIVAN, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., GIERKE, EFFRON, and BAKER, JJ., joined.
Counsel
For Appellant: Lieutenant Jonathan R. Goodman, JAGC, USNR (argued).
For Appellee: Colonel M. W. Fisher, Jr., USMC (argued); Lieutenant Commander
Philip Sundel, JAGC, USNR (on brief).
Military Judge: Robert G. Sokoloski
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. James, 00-0592/NA
Judge SULLIVAN delivered the opinion of the Court.
On July 13, 1998, appellant was tried by a military judge
sitting alone at a special court-martial at the U.S. Trial
Service Office Guam. Pursuant to his pleas, he was found guilty
of one specification of possessing child pornography and two
specifications of transporting child pornography in interstate
commerce, in violation of 18 USC § 2252A as assimilated by
Article 134, Uniform Code of Military Justice, 10 USC § 934. The
military judge sentenced appellant to a bad-conduct discharge,
confinement for 150 days, and reduction to pay grade E-1. On
March 8, 1999, the convening authority approved the sentence as
adjudged, and on May 19, 2000, the Navy-Marine Corps Court of
Criminal Appeals affirmed the findings and sentence. See United
States v. James, 53 M.J. 612 (N.M. Ct. Crim. App. 2000). 1
On November 16, 2000, this Court granted review of the
following issue:
WHETHER THE LOWER COURT ERRED IN FINDING
THAT THE STATUTORY LANGUAGE “APPEARS TO BE
A MINOR” AND “CONVEYS THE IMPRESSION” THAT
A PICTURE PORTRAYS A MINOR WITHIN 18 USC §
2252A WAS NOT UNCONSTITUTIONALLY OVERBROAD
BOTH ON ITS FACE AND AS APPLIED TO
APPELLANT.
We hold that the appellate court below did not err in affirming
appellant’s guilty-plea convictions of possessing and
transporting child pornography under 18 USC § 2252A and Article
1/ The typed original of the opinion below is dated May 19,
2000.
2
United States v. James, 00-0592/NA
134. See generally United States v. Hilton, 167 F.3d 61 (1st
Cir. 1999), cert. denied, 528 U.S. 844 (1999).
The record of trial shows that during 1998, appellant served
aboard the USS FRANK CABLE (AS 40), stationed at Guam. Appellant
lived in government quarters with another person, M.H. The
roommate owned a personal computer and paid monthly fees for
Internet access through a commercial provider. He also allowed
appellant to use both the computer and the Internet account.
From February to April 1998, appellant used the roommate’s
Internet account to “swap” files by downloading pictures from an
Internet site in exchange for posting pictures to that same site.
Appellant “intentionally picked sites . . . advertis[ing] ‘pre-
teen pics’ and downloaded” at least three files that contained
“pictures of minors engaged in explicit sexual activity. After
downloading” these files, “appellant viewed” the pictures “and
saved” the images onto his roommate’s computer.
On April 22, 1998, appellant entered a chat room offering a
conversation on “Dad and daughter sex.” While accessing the chat
room through his roommate’s account, appellant engaged in a
discussion with someone called “Fast Girl,” in fact the screen
name of a male agent of the U.S. Customs Service posing as a
female pedophile. “[A]t Fast Girl’s request, appellant uploaded
a picture of a child he believed to be a minor engaged in
sexually explicit activity” and sent the picture electronically
to Fast Girl. “Two days later, . . . appellant uploaded” another
fifteen pictures which he “believed” were “minors engaged in
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United States v. James, 00-0592/NA
sexually explicit activity” and sent them electronically to Fast
Girl. The agent posing as Fast Girl received all the pictures
back in continental United States. 53 M.J. at 612-13.
Appellant admitted the above facts and pleaded guilty to
violating 18 USC § 2252A on at least three occasions. 2
——— ——— ———
Appellant asks this Court to set aside his convictions under
18 USC § 2252A and Article 134 for possessing and transporting
child pornography. He contends that this federal statute is
unconstitutional because it violates the First Amendment. Cf.
United States v. Mento, 231 F.3d 912, 915 (4th Cir. 2000), cert.
filed Jan. 22, 2001. He particularly argues that this statute is
constitutionally overbroad because it not only prohibits sexually
explicit depictions of actual children, but also such pictures of
virtual or apparent children as well. He asks that his guilty
pleas to violating this unconstitutional statute be set aside as
improvident. See generally United States v. Prater, 32 M.J. 433,
436 (CMA 1991) (an accused must “show a ‘substantial basis’ in
law and fact” exists for overturning a guilty plea on appeal).
The Child Pornography Prevention Act of 1996 proscribes
knowing transportation, knowing receipt, knowing distribution,
and knowing possession of child pornography in interstate
commerce “by any means, including by computer.” See 18 USC §
2/ 18 USC § 2252A was amended on October 30, 1998 (Pub. L. No.
105-314, 112 Stat. 2978 (1998)) which eliminated “‘3 or more
images’ each place that term appears and inserting ‘an image.’”
Appellant’s offenses were alleged to have occurred between
February and April 1998.
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United States v. James, 00-0592/NA
2252A(a). 3 The term “child pornography” is broadly defined in
the U.S. Code. It includes not only a “visual depiction . . . of
sexually explicit conduct . . .(A) . . . involv[ing] the use of a
minor engaging in sexually explicit conduct”; but also “(B) such
visual depiction [which] is, or appears to be, of a minor
engaging in sexually explicit conduct” and “(D) such visual
depiction . . . conveys the impression that the material is or
contains a visual depiction of a minor engaging in sexually
explicit conduct[.]” See 18 USC §§ 2256(8) (emphasis added).
The military judge explained to appellant:
The term “child pornography” means any
visual depiction including photograph,
video, picture of computer-generated image
or picture, whether made or produced by
electronic mechanical or other means of
sexually explicit conduct, where the
3/ “(a) Any person who – (1) knowingly mails, or transports or
ships in interstate or foreign commerce by any means, including
by computer, any child pornography; (2) knowingly receives or
distributes – (A) any child pornography that has been mailed, or
shipped or transported in interstate or foreign commerce by any
means, including by computer; or (B) any material that contains
child pornography that has been mailed, or shipped or transported
in interstate or foreign commerce by any means, including by
computer;
* * *
or (5) either – (A) in the special maritime or territorial
jurisdiction of the United States, or on any land or building
owned by, leased to, or otherwise used by or under the control of
the United States Government, or in the Indian country (as
defined in section 1151), knowingly possesses any book, magazine,
periodical, film, videotape, computer disk, or any other material
that contains 3 or more images of child pornography; or
(B)knowingly possesses any book, magazine, periodical, film,
videotape, computer disk, or any other material that contains 3
or more images 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 as provided in subsection (b).
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United States v. James, 00-0592/NA
production of such visual depiction
involves the use of a minor engaging in
sexual [sic] explicit conduct. Such
visual depiction is or appears to be of a
minor engaging in sexually explicit
conduct or such visual depiction has been
created, adapted or modified to appear
that of an unidentifiable minor or it
contains a visual depiction of a minor
engaging in sexually explicit conduct. Do
you understand that?
ACC: Yes, sir.
MJ: The definition of “child pornography,”
“visual depiction,” and “minor” again come
under or come from section 2256 of Title
18 of the United States Code. . . .
R. 19.
Appellant argues that the “appears to be” and “conveys the
impression” language of the statute infringes on speech protected
by the First Amendment of the U.S. Constitution. He largely
adopts the position of the Ninth Circuit in Free Speech Coalition
v. Reno, 198 F.3d 1083 (9th Cir. 1999), cert. granted, 121 S. Ct.
876 (2001). There, the Ninth Circuit recognized that the
definition of child pornography found in the federal statute (18
USC 2256(8)) constituted a “content-based classification of
speech.” Reno, 198 F.3d at 1091. As such, it stated that the
Government had to show both “a compelling interest” served by
this statute and how that statutory definition was “narrowly
tailored” to fit that interest. Id. Focusing on the “compelling
interest” of the state in proscribing child pornography mentioned
by the Supreme Court in New York v. Ferber, 458 U.S. 747 (1982),
the Ninth Circuit held that the state had no compelling interest
in regulating virtual or apparent child pornography where no
minor was actually harmed. Reno, 198 F.3d at 1096. “Nothing in
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United States v. James, 00-0592/NA
Ferber can be said to justify the regulation of such materials
other than the protection of the actual children used in the
production of child pornography.” Id at 1092.
We disagree with the Ninth Circuit’s holding in Free Speech
Coalition v. Reno, supra, and hold the definition of “child
pornography” in 18 USC §§ 2256(8) and the prohibitions in 18 USC
§ 2252A are constitutional. The majority of the other federal
courts of appeals that have considered this same issue have held
this section of the Act to be constitutional. See United States
v. Hilton, 167 F.3d 61 (1st Cir. 1999); see also United States v.
Acheson, 195 F.3d 645 (11th Cir. 1999); United States v. Mento,
231 F.3d 912 (4th Cir. 2000); and United States v. Fox, 248 F.3d
394 (5th Cir. 2001). In particular, we adopt the rationale of
the First Circuit as elaborated in United States v. Hilton, supra
at 72 (holding that “appears to be” language added prohibition
against virtual child pornography to prohibition against actual
child pornography as particularly defined in original statute).
The First Circuit in Hilton opined that suppressing the
“virtual” or apparent child-pornography trade constituted a
compelling government interest that justified the expanded
definition of “child pornography” found in the federal statute.
It acknowledged that this federal statute created a “content-
based” restriction, 167 F.3d at 69, and applied the same
“compelling state interest-narrow tailoring” test as the Ninth
Circuit in Reno. See Hilton, 167 F.3d at 68. However, looking
to the decision in Osborne v. Ohio, 495 U.S. 103 (1990), it
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United States v. James, 00-0592/NA
maintained that the Supreme Court has recognized a broader
governmental interest in regulating child pornography than
approved in Ferber. See Hilton, 167 F.3d at 70,73. As such, the
First Circuit upheld the statute as constitutional:
As technology improves and access to
technology increases, efforts to eradicate
the child pornography industry could be
effectively frustrated if Congress were
prevented from targeting sexually explicit
material that “appears to be” of real
children. The government’s interest in
addressing these forms of child
pornography is no less powerful than in
instances where an actual child is
actually used and abused during the
production process. We will not second-
guess Congress’s decision to address the
social ills posed by the various types of
virtual child pornography.
Hilton, 167 F.3d at 73. 4 We agree.
In any event, even if the First Circuit’s approach to 18 USC
§ 2252A is not followed, appellant’s convictions need not be
invalidated. A narrow construction of this statute applying it
only to pictures of actual minors would clearly render this
statute constitutional even under the Ninth Circuit’s decision.
4/ The First Circuit recounted Congress’ stated reasons for
broadening the definition of child pornography: “First, the
legislature desired to reduce the sheer volume of computerized
child pornography that could be used by child molesters and
pedophiles to ‘stimulate or whet their own sexual appetites.’ S.
Rep. 104-358, at pt. IV(B). Second, Congress sought to ban
computer-generated images that are ‘virtually indistinguishable’
from those of real children, but are made without live children.
Id. . . . Third, the new law was designed to protect the privacy
of actual children whose innocuous images are altered to create
sexually explicit pictures. . . . Fourth, Congress wished to
deprive child abusers of a ‘criminal tool’ frequently used to
facilitate the sexual abuse of children.” Hilton, 167 F.3d at
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United States v. James, 00-0592/NA
See Free Speech Coalition v. Reno, supra at 1086. Here,
appellant’s admissions “objectively support” his pleas of guilty
to violations of the more narrowly construed statute directed at
sexual pictures of actual minors. See generally United States v.
Shearer, 44 M.J. 330, 334 (1996) (“An inquiry into the providence
of a guilty plea must establish the factual circumstances
admitted by the accused which ‘objectively’ support his plea.”).
Appellant argues that no definite proof exists in his case
that the pictures at issue showed actual minors. However, in the
guilty-plea context, the Government does not have to introduce
evidence to prove the elements of the charged offense beyond a
reasonable doubt; instead, there need only be “factual
circumstances” on the record “which ‘objectively’ support” the
guilty pleas, i.e., that actual minors were in appellant’s
pictures. See Shearer, 44 M.J. at 334. Here, appellant pleaded
guilty to the charged violations of 18 USC § 2252A (R. 11) and
admitted that actual minors were in the charged pictures.
The judge in this case explained to appellant that an
element of the crimes of possessing and transporting child
pornography was proof that the subjects of the pictures were
minors. He said:
The third element of Specification 1, is
that the visual depiction was produced by
using at least one person who was a minor
engaged in this sexually explicit conduct.
Do you understand that element?
66-67. See United States v. Mento, 231 F.3d 912, 916, 918, 920-22
(4th Cir. 2000).
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ACC: Yes, sir.
MJ: And that element is the same for
Specification 2 and Specification 3. Do
you understand that?
ACC: Yes, sir.
R. 16. Moreover, appellant particularly admitted that the
subjects of the pictures were minors:
Q. Now, why do you believe that- as far
as describes those files- why you
believe the files to be described as
child pornography?
A. Well, they depicted young females
under the age of eighteen, which as
you stated, that they, uh, they are
minors. I believe that the pictures
depicted minors under the age of
eighteen and at least four contained
minors engaged in sexual activity.
* * *
Q. Do you believe that one of those
persons involved in that conduct was
a minor?
A. I believe the person in the picture
was under eighteen, yes, sir.
Q. Now, when you say the person in the
picture, was there one person or more
than one?
A. There were two persons in the picture,
sir. The person I’m referring to- is
I believe, the young lady, was a
minor. I am not- I am not sure of the
male.
R. 27, 34.
Appellant’s admissions concerning the age of the subjects of
the pictures in his case were amply supported by the pictures
themselves which are attached to this record as exhibits. See R.
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54-55 and Pros. Ex. 2-4. In addition he admitted that he went to
various web sites looking for pictures of “pre-teen[s]” and
downloaded pictures from files labeled in a manner reasonably
suggesting depiction of actual minors. R. 26, 38. Finally,
appellant admitted that he visited chat rooms on the Internet
with topics such as “Dad and daughter sex” where pictures of
minors were regularly requested and provided. R. 32. Viewed in
its entirety, we conclude that the factual circumstances
reflected in the record “objectively support” appellant’s guilty
pleas to possessing and transporting child pornography depicting
actual minors.
The decision of the United States Navy-Marine Corps Court of
Criminal Appeals is affirmed.
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