United States v. Alois Wolk ( 2003 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 02-1179
    ___________
    United States of America,              *
    *
    Appellee,                  *
    *
    v.                               * Appeal from the United States
    * District Court for the
    Alois Larry Wolk, Jr., also known as   * Eastern District of Missouri.
    Larry Wolk,                            *
    *
    Appellant.                 *
    *
    ___________
    Submitted: November 7, 2002
    Filed: July 30, 2003
    ___________
    Before RILEY, BEAM, and SMITH, Circuit Judges.
    ___________
    SMITH, Circuit Judge.
    Alois Larry Wolk, Jr. was convicted of one count of transporting child
    pornography (violating 18 U.S.C. § 2252A(a)(1)) and three counts of possessing child
    pornography (violating 18 U.S.C. § 2252A(a)(5)(B)). Wolk's primary argument on
    appeal is that the Supreme Court decision in Ashcroft v. Free Speech Coalition, 
    535 U.S. 234
     (2002) requires the dismissal of his indictment. Wolk also challenges the
    district court's1 denial of his suppression motion, his Batson challenge, and his
    objection to the district court's sentencing enhancement under Section 2G2.2(b)(3)
    of the Sentencing Guidelines. We find no error and affirm his sentence.
    I.
    As part of an undercover investigation, Detective Sergeant Michael Zaglifa
    posed as a thirteen-year-old girl with the screen name "AshleyS_13" in an Internet
    Relay Chat room entitled "preteen 101." Eventually, AshleyS_13 received a request
    for a private Internet chat from Wolk, who was using the screen name of ^fish^. Wolk
    then sent AshleyS_13 obscene, graphic photos of children engaging in sex, incest,
    and bondage. During the conversation, Wolk identified himself as a sixty-year-old
    man named Simon.
    Based upon the chat room exchange and upon information obtained from
    Wolk's Internet service provider, the Federal Bureau of Investigation (FBI) obtained
    a search warrant for Wolk’s residence. On November 16, 2000, at approximately 9:30
    a.m., seven state agents and federal officers executed the search warrant. The officers
    knocked at the door; Wolk's wife answered and advised them that Wolk was at a
    training seminar. After attempting to contact Wolk, two of the state officers traveled
    to Wolk's nearby office and informed him that a search warrant was being executed
    at his residence. At that time, the officers advised Wolk that although he did not have
    to return to his residence, his wife wished for him to be there.
    Wolk then drove himself home, and the officers followed him. However, at one
    point the cars were separated, and as a result Wolk arrived before the officers at
    approximately 10:10 a.m. Upon arrival, he encountered FBI Special Agent Gerald
    Bell, who informed him that the officers had a search warrant for his residence,
    1
    The Hon. Stephen N. Limbaugh, United States District Judge for the Eastern
    District of Missouri.
    -2-
    acquired in the course of a child pornography investigation. Wolk then sat down in
    the living room with Bell and two other officers. Wolk's wife remained in the kitchen
    with another officer.
    Bell told Wolk that "if he wanted to talk[, ]it was of his own free will and that
    he was free to go at any time[. H]e was not under arrest." Wolk replied that he was
    willing to talk with them. He admitted to the officers that he had installed a file
    server2 on his computer, but insisted that he only used it to trade music files.
    One officer then told Wolk that the authorities knew there was child
    pornography in the house. Wolk then admitted that he had child pornography on his
    computer, that he had been collecting it for two years, and that he had sent child
    pornography from the file server in his house. Wolk indicated that he archived his file
    server onto three CD ROMs. The officers then seized the CDs and his computer. On
    them, officers found numerous pornographic images, a portion of which contained
    child pornography.
    Wolk then voluntarily signed a statement. In the statement, he admitted he (1)
    used the screen name ^fish^, (2) identified himself as a sixty- to sixty-two-year-old
    male named Simon, and (3) traded nude internet pictures of adults, teens, and some
    child pornography. The authorities completed the residential search at approximately
    11:30 a.m.
    2
    A file server is "[a] program, running on a computer, that allows different
    programs, running on other computers, to access the files of that computer."
    National Communications Systems, Technology & Standards Division,
    Telecommunications: Glossary of Telecommunication Terms (1996), available at
    http://www.its.bldrdoc.gov/fs-1037/.
    -3-
    Wolk was then indicted and later convicted of one count of transporting child
    pornography and three counts of possessing child pornography. His appeal alleges
    four errors.
    II.
    First, Wolk argues that the Supreme Court decision in Ashcroft v. Free Speech
    Coalition, 
    535 U.S. 234
     (2002) requires the dismissal of his indictment. We disagree.
    Ashcroft, which declared portions of the Child Pornography Prevention Act of 1996
    unconstitutional and overbroad, does not provide the relief Wolk seeks.
    A.
    In 1996 Congress passed the Child Pornography Prevention Act of 1996 ("the
    Act"). Prior to the passage of the Act, the definition of "child pornography" applied
    to visual depictions of actual minors "engaging in sexually explicit conduct." 
    18 U.S.C. § 2252
     (1994 ed.); Ashcroft, 
    535 U.S. at 241
    . After its passage, however, the
    Act expanded the definition of "child pornography" to criminalize virtual
    pornography. This included "any visual depiction, including a computer-generated
    image, that 'is, or appears to be, of a minor engaging in sexually explicit conduct,' and
    [also included] any sexually explicit image that was 'advertised, promoted, presented,
    described, or distributed in such a manner that convey[ed] the impression' of
    depicting 'a minor engaging in sexually explicit conduct.'" United States v. Deaton,
    
    328 F.3d 454
    , 455 (8th Cir. 2003) (per curium) (citing Ashcroft, 
    535 U.S. at 239
    ).
    However, in Ashcroft, the Supreme Court declared these definitions–found in
    
    18 U.S.C. § 2256
    (8)(B) and 
    18 U.S.C. § 2256
    (8)(D) respectively–unconstitutional
    and overbroad under the First Amendment. Ashcroft, 
    535 U.S. at 258
    . In declaring
    these provisions unconstitutional, the Court relied upon two of its prior First
    Amendment decisions: Miller v. California, 
    413 U.S. 15
     (1973) and New York v.
    Ferber, 
    458 U.S. 747
     (1982). The Court noted that generally under Miller,
    pornography can be banned only if it is obscene. Ashcroft, 
    535 U.S. at 246
    .
    -4-
    Nevertheless, it observed that under Ferber pornographic images depicting actual
    children can be proscribed regardless of their obscenity. 
    Id. at 249
    . The Court
    observed that Ferber permits such regulation because production of child
    pornography is "intrinsically related" to child sexual abuse. Child pornography is "a
    permanent record of a child's abuse [and] the continued circulation itself would harm
    the child." 
    Id.
     However, the Court noted that the Act's ban on virtual child
    pornography in Section 2256(8)(B) "prohibits speech that records no crime and
    creates no victims by its production" and "covers materials beyond the categories
    recognized in Ferber and Miller." 
    Id. at 250, 256
    . As a result, it declared Section
    2256(8)(B) overbroad. 
    Id. at 256
    . Likewise, the court concluded that Section
    2256(8)(D) was overbroad. 
    Id. at 258
    . After considering the Government's reasons
    for such regulation, the Court held that their justifications were insufficient, and thus
    these sections were unconstitutional under the First Amendment. 
    Id. at 256, 258
    .
    The Government charged Wolk with transporting and possessing child
    pornography. 18 U.S.C. §§ 2252A(a)(1), 2252A(a)(5)(B). Ashcroft did not declare
    either of these statutes unconstitutional. E.g., United States v. Kelly, 
    314 F.3d 908
    ,
    909 (7th Cir. 2003) ("[Aschroft struck] down only the statute's expanded definition
    of child pornography to encompass virtual material.") However, the Government's
    indictment defined "child pornography" to include virtual pornography and contained
    -5-
    the precise language that Ashcroft later declared unconstitutional.3 Wolk thus argues
    that his indictment is constitutionally infirm and should be dismissed.
    B.
    Before considering Wolk's claim, however, we must first identify our standard
    of review. The Government urges that plain error is the appropriate standard because
    Wolk failed to preserve this objection below. We agree.
    In order to preserve an issue for appeal, a defendant must timely object and
    clearly state grounds for his objection so that the trial court has an opportunity to
    prevent or correct error. United States v. Williams, 
    994 F.2d 1287
    , 1294 (8th Cir.
    1993). Wolk filed a timely motion to dismiss, but whether he "clearly stated the
    grounds for his objection" is at issue. In one section of his motion, Wolk stated:
    3
    The indictment defines "child pornography" to mean:
    any visual depiction, including any photographic 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–
    (A) the production of such visual depiction involves the use of a minor
    engaged in sexually explicit conduct;
    (B) such visual depiction is, or appears to be, of a minor engaging in
    sexually explicit conduct;
    (C) such visual depiction has been created, adapted, or modified to
    appear that an identifiable minor is engaging in sexually explicit
    conduct; or
    (D) such visual depiction 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.
    Appellant's App. at 30–31 (emphasis added).
    -6-
    (1) Because Defendant's constitutional rights (a) against self-
    incrimination, (b) to equal protection, (c) his civil rights to be free from
    oppressive acts of the police and (d) to due process of law under the
    Missouri and United States Constitution have been violated, the
    Defendant respectfully requests that all charges brought against him by
    the State be dismissed by this Court.
    Appellant's App. at 71. On its face this section does not "clearly state grounds for
    objection." Instead the section is vague, conclusory, and confusing. Not only does it
    not reference the indictment, it does not address anything even remotely relating to
    the issue of virtual pornography–either the First Amendment or the statutes, 18
    U.S.C. §§ 2252A(a)(1), 2252A(a)(5)(B).
    However, when we read with it other sections of the motion, his objection
    becomes clearer–Wolk's motion related to his argument that the police obtained
    evidence in violation of Miranda. Paragraph three of the motion states that "[i]f the
    Court grants the Defendant's motion to suppress all evidence gathered after the failure
    to give Miranda warnings to the Defendant, there would be insufficient evidence to
    support the above referenced charges and therefore, such charges would be subject
    to dismissal due to lack of evidence." Id. Further, the statements of Wolk's counsel
    at the motion hearing confirm this conclusion. Wolk's counsel stated that "the motion
    to dismiss . . . only bears relevance after the Court makes a determination on the
    suppression hearing. I don't think that it's ripe until after the Court determines
    whether the statements are admissible by Mr. Wolk." Mot. Hearing Trans. at 2–3
    (Aug. 2, 2001).
    No mention was made of virtual pornography or of any First Amendment
    claims. Thus, by negative inference, Wolk has stated both orally and in writing that
    the motion does not relate to any of the issues presented in Ashcroft. Wolk even
    conceded this expressly. At the beginning of the hearing, the district court asked
    Wolk's counsel whether his motion was attacking the facial validity of the statute.
    -7-
    Wolk's counsel replied that ". . . his rights were being violated–not by being
    charged–but by the involuntary statement that was taken . . . ." Id. at 3. As a result,
    the district court summarized his understanding of the motion: "So really, it all goes
    to the evidence that's to be offered in the suppression hearing," id., to which Wolk's
    counsel replied, "That's correct, your Honor." Id.
    Therefore, not only did Wolk not preserve the virtual pornography argument,
    he never made it. As a result, we review Wolk's constitutional challenge for plain
    error.
    C.
    In order to establish plain error, Wolk must show that "(1) the district court
    committed an error, i.e., deviated from a legal rule, (2) the error was plain, i.e., clear
    under current law, and (3) the error affected [Wolk's] substantial rights." United
    States v. White, 
    241 F.3d 1015
    , 1023 (8th Cir. 2001). If there is indeed error that is
    plain, then Wolk bears the burden of proving that it "affec[ted his] substantial rights."
    United States v. Olano, 
    507 U.S. 725
    , 734 (1993) (citations omitted). "In most cases,
    [this means that he must] show[ ] that the error was prejudicial." 
    Id.
     If Wolk can
    overcome these obstacles, he still must overcome one more hurdle. Because our
    authority to correct plain error is discretionary, we will "not exercise [our] discretion
    unless the error seriously affects the fairness, integrity or public reputation of judicial
    proceedings." 
    Id. at 732
     (citations omitted).
    The government concedes the first two factors–that the indictment was
    erroneous (because it included a definition that was unconstitutional) and that the
    error was plain (because of Ashcroft). It submits, however, that the error did not affect
    Wolk's substantial rights and, alternatively, that affirming Wolk's convictions would
    not "seriously affect the fairness, integrity or public reputation of judicial
    proceedings." We agree that Wolk has not carried his burden.
    -8-
    We come to this conclusion "because (1) the evidence established that the
    children depicted in the pictures introduced at trial were actual children[, ] (2) no one
    ever claimed, or even hinted, that the images were of virtual children," and (3) Wolk
    stipulated that these were actual children. United States v. Hall, 
    312 F.3d 1250
    , 1260
    (11th Cir. 2002).
    First, the evidence establishes that the children in the pictures at issue were
    real. The photos introduced for Count I (Transportation of Child Pornography) were
    described by the undercover agent in human terms–"boys with erections"; "brother
    and a sister enjoying each other"; "girls engaging in sex acts." Trans. of Voir Dire &
    Tr. at 160, 170, 180 (Sept. 17, 2001). Likewise, FBI Special Agent Jerry Bell testified
    that the photos introduced for Counts II, III, and IV (Possession of Child
    Pornography) were images of child pornography, which he defined as "children under
    [eighteen] engaged in sex acts or sexually explicit activity." Tr. Trans. at 61–62 (Sept.
    18, 2001).
    Moreover, these pictures are in the record. We have examined them. Upon
    review, we conclude the children depicted in these images were real. See United
    States v. Richardson, 
    304 F.3d 1061
    , 1064 (11th Cir. 2002) (performing a plain error
    analysis and concluding the same); see also Hall, 
    312 F.3d at 1260
     (same); United
    States v. Pearl, 
    324 F.3d 1210
    , 1219 & n.4 (10th Cir. 2003) (Briscoe, J., dissenting)
    (same).
    Second, there was no testimony or evidence presented at trial that the pictures
    were virtual images. While not evidence in the case, the opening statements of both
    counsel are illustrative. In the Government's opening statement, the Assistant United
    States Attorney stated, "Let me be clear here. I am not talking about art. I'm talking
    about children engaged in sex acts. That's what this child pornography is." Trans. of
    Voir Dire & Tr. at 96–97 (Sept. 17, 2001). Wolk's counsel stated likewise, "Now
    what I also want to make clear is we're not disputing that the pictures that they're
    -9-
    going to show you are child pornography. Evidence is going to show that [the
    pictures are] child pornography. We're not standing here defending those disgusting
    pictures." 
    Id.
     at 101–02. Wolk's counsel also stipulated to the court the same. Tr. of
    Testimony of Alois Larry Wolk Direct Examination Vol. 3 at 21–2 (Sept. 19, 2001).
    These comments are consistent with Wolk's defense–that he did not knowingly
    possess or transport the child pornography images.
    Finally, Wolk admitted numerous times that the images were child pornography
    and that there were actual minors in the pictures. He first admitted this during his
    initial questioning when he told Bell that he had child pornography on his computer.
    Another officer then advised Wolk that "child pornography involved children
    engaged in sexual activity, photos of children engaged in sexual activity." Wolk
    agreed that he had photographs which met the described definition. Tr. of Testimony
    of Alois Larry Wolk Direct Examination Vol. 1 at 39–40 (Sept. 19, 2001).
    Later at trial Wolk testified that the images from the three computer CDs that
    were introduced into evidence were child pornography. Tr. of Testimony of Alois
    Larry Wolk Direct Examination Vol. 3 at 22 (Sept. 19, 2001). He also admitted that
    it is harmful to possess and trade child pornography because "it's harmful to our
    society, to the people doing it, to the children." Id. at 44. (emphasis added).
    We thus conclude that although plain error exists in the indictment, Wolk was
    not prejudiced. His indictment did contain two portions of the definition of child
    pornography that were later found to be unconstitutional. However, this error did not
    prejudicially influence Wolk's trial because the pictures he transported and possessed
    were of real children.4 As a result, Wolk's constitutional challenge fails.
    4
    Thus, because Wolk failed to carry his burden that "the error affected [his]
    substantial rights," we need not discuss our discretionary analysis.
    -10-
    III.
    Wolk also argues that the district court erred when it denied his motion to
    suppress. Wolk's motion contended the police obtained his confession in violation of
    Miranda v. Arizona, 
    384 U.S. 436
     (1966) because they did not advise him of his
    Constitutional rights. Miranda dictates that "an individual must be warned about the
    rights encompassed in the privilege against self-incrimination before '[he or she] is
    taken into custody or otherwise deprived of his freedom by the authorities in any
    significant way and is subjected to questioning.'" United States v. Wallace, 
    323 F.3d 1109
    , 1112 (8th Cir. 2003) (citing Miranda, 
    384 U.S. at 479
    ).
    The Government agreed that no Miranda warnings were given, but responds
    they were not necessary because Wolk was not "in custody." The district court
    concurred with the Government and denied Wolk's motion to suppress. In
    determining whether Wolk was "in custody," "we uphold [the district court's] findings
    of historical fact unless clearly erroneous, but we apply the controlling legal standard
    to the historical facts utilizing an independent review." United States v. Axsom, 
    289 F.3d 496
    , 500 (8th Cir. 2002) (citation omitted).
    "[T]he initial determination of custody depends on the objective circumstances
    of the interrogation, not on the subjective views harbored by either the interrogating
    officers or the person being questioned.” Stansbury v. California, 
    511 U.S. 318
    , 323
    (1994). Further, "we must examine both the presence and extent of physical and
    psychological restraints placed upon the person's liberty during the interrogation in
    light of whether a reasonable person in the suspect's position would have understood
    his situation to be one of custody." Axsom, 
    289 F.3d at 500
     (citation omitted).
    To do this, we have developed a list of six common, but non-exhaustive indicia
    to determine whether an individual is in custody:
    -11-
    (1) whether the suspect was informed at the time of questioning that the
    questioning was voluntary, that the suspect was free to leave or request
    the officers to do so, or that the suspect was not considered under arrest;
    (2) whether the suspect possessed unrestrained freedom of movement
    during questioning; (3) whether the suspect initiated contact with
    authorities or voluntarily acquiesced to official requests to respond to
    questions; (4) whether strong arm tactics or deceptive stratagems were
    employed during questioning; (5) whether the atmosphere of the
    questioning was police dominated; or, (6) whether the suspect was
    placed under arrest at the termination of the questioning.
    United States v. Wallace, 
    323 F.3d 1109
    , 1112 (8th Cir. 2003). In applying these
    indicia we employ a balancing test. Axsom, 
    289 F.3d at 501
    . "The first three indicia
    are mitigating factors which, if present, mitigate against the existence of custody at
    the time of questioning. Conversely, the last three indicia are aggravating factors
    which, if present, aggravate the existence of custody." 
    Id.
     at 500–01.
    Applying the six factors to this case, we conclude that Wolk was not in custody
    when he was questioned. First, Wolk knew that the questioning was voluntary and
    that he was free to leave. When Wolk was initially contacted, the officer told him that
    he did not have to go back to his home for the execution of the search warrant. Wolk
    chose to drive to his residence. At his residence, Wolk was informed that the
    interview was voluntary, that he was free to leave, and that he was not under arrest.
    See United States v. Jones, 
    630 F.2d 613
    , 616 (8th Cir. 1980) ("The absence of a
    formal arrest and the advice of freedom to decline to answer, while not conclusive,
    are indicative of noncustodial interrogation."). He also voluntarily signed the
    statement.
    Moreover, there is no evidence that Wolk's freedom of movement was
    restrained. He drove himself to his home. At one point during the drive to Wolk's
    residence, his car and the officers' car even became separated. When he arrived at his
    -12-
    residence, he was told that he was free to leave. Further, at no point during the
    questioning did the officers threaten Wolk or use deceptive techniques.
    We note that the police initiated contact with Wolk and that at one point three
    officers questioned him. However, these factors are not enough to convince us that
    Wolk was in custody for purposes of Miranda. The questioning took place at his own
    residence, see United States v. Helmel, 
    769 F.2d 1306
    , 1320 (8th Cir. 1985) (while
    house setting can be coercive, "such is not indicative of the type of inherently
    coercive setting that normally accompanies a custodial interrogation."), and he was
    only questioned for an hour and twenty minutes–"certainly not a marathon session
    designed to overcome [defendant's] will." 
    Id.
    Thus, upon weighing these non-exhaustive indicia independently, we conclude
    that the district court did not err when it found that Wolk was not in custody.
    IV.
    Wolk argued below and argues on appeal that three black jurors were
    improperly struck from the jury based upon their race in violation of Batson v.
    Kentucky, 
    476 U.S. 79
     (1986). The district court rejected his challenge. We review
    the district court's ruling of a Batson challenge for clear error. United States v.
    Pherigo, 
    327 F.3d 690
    , 695 (8th Cir. 2003). "Our inquiry is guided by the well-
    established three-prong analysis of Batson. First, the opponent of the peremptory
    challenge must establish a prima facie showing that the challenge is discriminatory."
    
    Id.
     (citation omitted). "The proponent of the peremptory challenge must then
    articulate a race-neutral explanation for the challenge. If a race-neutral explanation
    is offered, the challenger must show that the explanation is a pretext for
    discrimination." 
    Id.
    First, we examine Wolk's prima facie case. "This can be done by showing
    circumstances that give rise to a reasonable inference of racial discrimination."
    -13-
    Simmons v. Luebbers, 
    299 F.3d 929
    , 941 (8th Cir. 2002) (citations omitted). To
    establish his prima facie case, Wolk only adduced that three black jurors had been
    struck. He offered nothing further. The district court then ruled that Wolk had not met
    his prima facie case. We will defer to this determination.
    Moreover, on appeal Wolk cites to no additional evidence of racial
    discrimination. This is not sufficient. The mere recitation of the fact that black jurors
    were struck from the jury cannot alone establish a prima facie case. United States v.
    Matha, 
    915 F.2d 1220
    , 1222 (8th Cir. 1990) ("This Court has held that the movant
    cannot carry the burden of establishing a prima facie case with numbers alone.");
    United States v. Dawn, 
    897 F.2d 1444
    , 1448 (8th Cir. 1990) ("[A] defendant who
    requests a prima facie finding of purposeful discrimination is obligated to develop a
    record, beyond numbers, in support of the asserted violation."); see also United States
    v. Grandison, 
    885 F.2d 143
    , 148 (4th Cir. 1989) (defendant failed to establish prima
    facie case where six of nine veniremen struck by Government were black). Thus,
    because Wolk has not established a prima facie case, his Batson challenge must fail.
    V.
    Finally, Wolk argues that the district court erred when it enhanced his offense
    level by four based upon § 2G2.2(b)(3) of the Sentencing Guidelines. We review the
    district court's interpretation and application of the Sentencing Guidelines to the facts
    de novo. United States v. Parker, 
    267 F.3d 839
    , 847 (8th Cir. 2001). Section
    2G2.2(b)(3) allows for a four-level enhancement "[i]f the offense involved material
    that portrays sadistic or masochistic conduct or other depictions of violence . . . ." On
    September 22, 2000, Wolk sent several images of child pornography to AshleyS_13.
    These images included: (1) a nude, minor Asian girl wearing a leather collar being
    held against the genitals of a nude, masked adult male holding a whip; (2) a nude,
    minor Asian girl wearing a leather collar being held with spread legs against the
    genitals of an adult male; (3) a nude, minor Asian girl with a collar and handcuffs that
    are chained to the collar being held against the nude adult male.
    -14-
    Wolk does not contest the content of these images. Instead, he argues that these
    imagines are neither sadistic, masochistic, nor depicting violence. He is mistaken. The
    pictures are both sadistic and violent. In Parker we held the term sadism to mean "the
    infliction of pain upon a love object as a means of obtaining sexual release" and
    "delight in physical or mental cruelty." 
    267 F.3d at 847
    . We defined violence as the
    "exerting of any physical force so as to injure or abuse." 
    Id.
     These pictures reflect
    physical force and show abuse. They depict children who are being abused through
    the use of force (either through holding or by handcuffing). The pictures are also
    sadistic because they express a delight in mental and physical cruelty. 
    Id.
     ("We
    determine that when a pornographic image depicts an adult male engaging in the
    sexual conduct of the nature we have here, the conduct portrayed is sufficiently
    painful, coercive, abusive, and degrading to qualify as sadistic or violent within the
    meaning of § 2G2.2(b)(3).").5
    Wolk also argues that § 2G2.2(b)(3) contains an intent element and because
    there allegedly was no evidence that he intended to transport material containing
    sadistic or masochistic material, he should not be subject to the enhancement. See
    United States v. Tucker, 
    136 F.3d 763
    , 764 (11th Cir. 1998) (per curium) (holding
    that Section 2G2.2(b)(3) has an intent element); United States v. Kimbrough, 
    69 F.3d 723
    , 734 (5th Cir. 1995) (same). But see United States v. Richardson, 
    238 F.3d 837
    ,
    840 (7th Cir. 2001) (disagreeing with Tucker and Kimbrough and holding that
    Section 2G2.2(b)(3) has no intent element).
    We agree with the Seventh Circuit. Section 2G2.2(b)(3) has no express intent
    element. Previously we have refused to read scienter elements into Guidelines when
    the Sentencing Commission has not provided them. See, e.g., United States v.
    Gonzalez-Lopez, __ F.3d __, __, available at 
    2003 WL 21637954
    , at *4 (8th Cir.
    5
    Because the pictures are both sadistic and violent, "we need not consider
    whether the conduct depicted also was 'masochistic.'" Parker, 
    267 F.3d at 847
    .
    -15-
    2003)(concluding that the definition of crime of violence contained in § 2L1.2(b)(1)
    of the Guidelines does not contain a volitional element); United States v. Amerson-
    Bey, 
    898 F.2d 681
    , 683 (8th Cir. 1990) (holding that USSG § 2K2.1(b)(2) (related to
    possession of a stolen firearm) does not require that the defendant know the gun was
    stolen). This Guideline Section provides for a four-level enhancement "[i]f the
    offense involved material that portrays sadistic or masochistic conduct or other
    depictions of violence . . . ." Because there is no express intent element in the
    Guidelines, we will not read one into it. Richardson, 
    238 F.3d at 840
     (holding same).
    Moreover, even if we were to read an intent element into § 2G2.2(b)(3), Wolk
    still would be subject to the enhancement because there was more than sufficient
    evidence introduced that he intended to transport material containing sadistic or
    masochistic conduct. A defendant's Internet conversations and possession of bondage
    material provide sufficient evidence of intent. Tucker, 
    136 F.3d at 764
    . Detective
    Sergeant Zaglifa testified that Wolk had shown AshleyS_13 how to access the "bondage"
    directory, how to access the "young" subdirectory, and how to receive images from his
    file server. Trans. of Voir Dire & Tr. at 119–22, 139-142 (Sept. 17, 2001). Wolk also
    asked the AshleyS_13 if she "like[d] the 107 and 108 pictures?", which were the
    bondage photographs. Id. at 157. Thus, the district court did not err in applying the
    enhancement pursuant to Guidelines § 2G2.2(b)(3).
    VI.
    Accordingly, for the foregoing reasons, we affirm the judgment of the district
    court.
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
    -16-
    

Document Info

Docket Number: 02-1179

Filed Date: 7/30/2003

Precedential Status: Precedential

Modified Date: 10/13/2015

Authorities (28)

United States v. Pearl , 324 F.3d 1210 ( 2003 )

United States v. Thomas Vernon Richardson, Sr. , 304 F.3d 1061 ( 2002 )

United States v. Terry Burton Kimbrough , 69 F.3d 723 ( 1995 )

United States v. Frederick Stanley Hall, Jr. , 312 F.3d 1250 ( 2002 )

United States v. Tucker , 136 F.3d 763 ( 1998 )

United States v. Anthony Grandison, United States of ... , 885 F.2d 143 ( 1989 )

Willie Simmons v. Allen Luebbers, Willie Simmons v. Al ... , 299 F.3d 929 ( 2002 )

United States v. Russell Terry Williams , 994 F.2d 1287 ( 1993 )

united-states-v-william-john-helmel-united-states-of-america-v-arthur , 769 F.2d 1306 ( 1985 )

United States v. Raymond Amerson-Bey , 898 F.2d 681 ( 1990 )

United States v. Raymond S. Matha , 915 F.2d 1220 ( 1990 )

United States v. Steven B. Pherigo, United States of ... , 327 F.3d 690 ( 2003 )

United States v. Thomas C. Richardson , 238 F.3d 837 ( 2001 )

United States v. George Kelly , 314 F.3d 908 ( 2003 )

United States of America, Cross-Appellant/appellee v. ... , 267 F.3d 839 ( 2001 )

United States v. W.J.B. Axsom, II , 289 F.3d 496 ( 2002 )

United States v. Shirley Wallace , 323 F.3d 1109 ( 2003 )

United States v. Ricky Dawn A/K/A \"Money\", United States ... , 897 F.2d 1444 ( 1990 )

United States v. Almarita Jones , 630 F.2d 613 ( 1980 )

United States v. Mark White , 241 F.3d 1015 ( 2001 )

View All Authorities »