United States v. Slanina ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS January 28, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-20181 c/w
03-20447
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WESLEY JOSEPH SLANINA, also known as Wesley J. Slanina,
Defendant-Appellant.
--------------------
Appeals from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-75-1
--------------------
Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:
Wesley Joseph Slanina appeals the district court’s order on
remand to consider the impact of Ashcroft v. Free Speech
Coalition, 535 U.S. 234 (2002). The district court held that the
general verdict finding Slanina guilty of two counts of
possession of child pornography was based on the validated
portions of the Child Pornography Act of 1996 and that the
evidence was sufficient to support a finding that the images
downloaded by Slanina were images of real children. Slanina
argues that on remand, the Government did not present any
No. 03-20181
-2-
additional evidence, in particular expert testimony, to show that
the images downloaded by Slanina depicted real children and,
therefore, the Government failed to meet its burden of proof to
establish that the images depicted real children. Slanina does
not argue that any of the images that he downloaded were virtual
children, and not real children.
Free Speech Coalition did not establish a broad requirement
that the Government must present expert testimony to establish
that the unlawful image depicts a real child. Three circuits
that have considered this issue take the same position. See
United States v. Kimler, 335 F.3d 1132, 1142 (10th Cir.), cert.
denied, 72 U.S.L.W. 3392 (U.S. Dec. 8, 2003)(No. 03-7285); 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.
2002), cert. denied, 123 S. Ct. 1646 (2003). “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.” Kimler, 335 F.3d at 1142. Therefore, the
Government was not required to present any additional evidence or
expert testimony to meet its burden of proof to show that the
images downloaded by Slanina depicted real children, and not
virtual children. The district court, as the trier of fact in
this case, was capable of reviewing the evidence to determine
No. 03-20181
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whether the Government met its burden to show that the images
depicted real children. See id.
Slanina argues that the district court erred in denying his
motion to correct the written judgment to strike the conditions
that the district court did not orally pronounce at sentencing
pursuant to Rule 36 of the Federal Rules of Criminal Procedure.
Rule 36 provides that “the court may at any time correct a
clerical error in a judgment, order, or other part of the record,
or correct an error in the record arising from oversight or
omission.” FED. R. CRIM. P. 36. Slanina has not shown that the
discrepancy between the orally imposed sentence and the written
judgment is a clerical mistake or oversight which the district
court may correct pursuant to Rule 36. See United States v.
Steen, 55 F.3d 1022, 1025-26 n.3 (5th Cir. 1995)(clerical error
under Rule 36 is limited to “‘mindless and mechanistic mistakes’”
and “‘minor shifting of facts.’”). Therefore, he has not shown
that the district court erred in denying his Rule 36 motion.
Slanina argues that the district court erred in denying his
motion to suppress the evidence obtained through a warrantless
search of his office computer. Slanina concedes that the issue
is foreclosed because it was raised and decided in his original
direct appeal, but states that he is raising it to preserve it
for possible Supreme Court review. “Under the law of the case
doctrine, an issue of law or fact decided on appeal may not be
reexamined either by the district court on remand or by the
No. 03-20181
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appellate court on a subsequent appeal.” United States v.
Becerra, 155 F.3d 740, 752 (5th Cir. 1998). “[A] prior decision
of this court will be followed without re-examination” unless,
inter alia, “the decision was clearly erroneous and would work a
manifest injustice.” Id. at 752-53. “To be clearly erroneous, a
decision must strike [the court] as more than just maybe or
probably wrong; it must be dead wrong.” Hopwood v. Texas, 236
F.3d 256, 272-73 (5th Cir. 2000). Because Slanina has not shown
that the court’s previous decision affirming the denial of his
motion to suppress was “dead wrong,” this court will not
reexamine this issue. See id.
AFFIRMED.