United States v. White , 2 F. App'x 295 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4497
WILLIAM HENRY WHITE,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CR-99-177-H)
Submitted: November 30, 2000
Decided: January 22, 2001
Before WIDENER, WILLIAMS, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Ronnie M. Mitchell, Coy E. Brewer, Jr., Michelle L. Treadwell,
MITCHELL, BREWER, RICHARDSON, ADAMS, BURNS &
BOUGHMAN, Fayetteville, North Carolina, for Appellant. Janice
McKenzie Cole, United States Attorney, Anne M. Hayes, Assistant
United States Attorney, Thomas B. Murphy, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
2 UNITED STATES v. WHITE
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
William Henry White appeals his conviction after a jury trial of
knowing possession of three or more images of child pornography, in
violation of 18 U.S.C.A. § 2252A(a)(5)(B) (West Supp. 1998) (cur-
rent version at 18 U.S.C.A. § 2252A (West 2000)). White asserts that
the statute is unconstitutional under the First, Fifth, and Eighth
Amendments and the Commerce Clause. He also contends that the
evidence was insufficient to convict him. We affirm.
I.
First, White contends that the district court erred in denying his
motion to dismiss the indictment on the ground that
§§ 2252A(a)(5)(B) and 18 U.S.C.A. § 2256(8)(B) (West Supp. 1998),
violate the First Amendment because the Government’s interest in
combating the use of images that "appear[ ] to be" children is not
compelling and because those sections are impermissibly vague and
overbroad. We rejected these arguments in United States v. Mento,
231 F.3d 912 (4th Cir. 2000). White therefore is not entitled to relief
on these grounds.
White also alleges that his privacy rights under the First Amend-
ment have been violated. We find that his reliance on Stanley v. Geor-
gia, 394 U.S. 557 (1969), is misplaced. White was not prosecuted for
merely possessing in his home photographs depicting child pornogra-
phy. Rather, the Government charged him with, and the jury con-
victed him of, knowing possession of child pornography that was
transported in interstate commerce. Because the Supreme Court con-
sistently has rejected constitutional protection for obscene material
outside the home, we find that White’s privacy claim fails. See
Osborne v. Ohio, 495 U.S. 103, 108-10 (1990) (citing New York v.
Ferber, 458 U.S. 747, 756-58 (1982)); United States v. Orito, 413
U.S. 139, 140-42 (1973) (collecting cases).
UNITED STATES v. WHITE 3
Next, White argues that he was convicted of a strict liability crime,
without the requisite proof that he knew the pornographic pictures
depicted minors, in violation of the Due Process Clause of the Fifth
Amendment. We reject his claim. Section 2252A(a)(5)(B) requires
that White know the pictures depicted minors, see United States v. X-
Citement Video, Inc., 513 U.S. 64, 78 (1994) (rejecting similar argu-
ment in context of 18 U.S.C. § 2252), and our review of the record
leads us to conclude that the Government proved that element at trial.
To the extent White alleges that we should read into
§ 2252A(a)(5)(B) a "wilfulness" requirement, his allegation is fore-
closed by our decision in United States v. Matthews, 209 F.3d 338,
350-52 (4th Cir.) (holding that 18 U.S.C. § 2252(a)(1), (2) did not
violate due process where "Congress settled on ‘knowingly’ as the
required mental state"), cert. denied, 121 S. Ct. 260 (2000).
White also argues that the twenty-one-month sentence imposed by
the district court was disproportionate to his offense and thus violates
the Eighth Amendment. It is well settled that proportionality review
is not appropriate for any sentence less than life imprisonment with-
out the possibility of parole. United States v. Kratsas, 45 F.3d 63, 67
(4th Cir. 1995).
Finally, White argues that the interstate commerce nexus require-
ment in § 2252A(a)(5)(B) does not satisfy the Commerce Clause. We
find his arguments unavailing. See United States v. Bausch, 140 F.3d
739, 740-41 (8th Cir. 1998) (upholding 18 U.S.C. § 2252(a)(4)(B) in
face of Commerce Clause challenge), cert. denied, 525 U.S. 1072(1999); United States v. Robinson, 137 F.3d 652, 655-56 (1st Cir.
1998) (same).
II.
White also challenges his conviction on the ground that the district
court erred by denying his motion for judgment of acquittal under
Fed. R. Crim. P. 29. We review the district court’s decision de novo.
United States v. Romer, 148 F.3d 359, 364 (4th Cir. 1998) (citations
omitted), cert. denied, 525 U.S. 1141 (1999). Where, as here, the
motion is based on insufficient evidence, the relevant question is not
whether the court is convinced of guilt beyond a reasonable doubt, but
rather whether the evidence, when viewed in the light most favorable
4 UNITED STATES v. WHITE
to the government, was sufficient for a rational trier of fact to have
found the essential elements of the crime beyond a reasonable doubt.
Glasser v. United States, 315 U.S. 60, 80 (1942).
Specifically, White contends that "the Government offered abso-
lutely no evidence that any of the materials in question were mailed,
shipped, or transported in interstate commerce." (Appellant’s Br. at
10). Our review of the trial transcript leads us to conclude that the
Government established the interstate commerce element of the
offense. White used America OnLine, an Internet service provider, to
access a newsgroup, from which he downloaded and viewed 173
depictions and four short movies of child pornography. "Transmission
of photographs by means of the Internet is tantamount to moving pho-
tographs across state lines and thus constitutes transportation in inter-
state commerce." United States v. Carroll, 105 F.3d 740, 742 (1st Cir.
1997); see United States v. Thomas, 74 F.3d 701, 706-09 (6th Cir.
1996) (finding interstate commerce element in 18 U.S.C. § 1465 satis-
fied where pornographic material sent via the Internet). We therefore
find that the evidence was sufficient and that the district court did not
err in denying White’s Rule 29 motion.
III.
Because we hold that White’s constitutional challenges fail and
that the evidence was sufficient to convict, we affirm. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED