                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0010n.06
                            Filed: January 7, 2008

                                            No. 06-3802

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT




UNITED STATES OF AMERICA,                               )
                                                        )
       Plaintiff-Appellee,                              )
                                                        )
v.                                                      )    ON APPEAL FROM THE UNITED
                                                        )    STATES DISTRICT COURT FOR
                                                        )    THE SOUTHERN DISTRICT OF
J. TIMOTHY HALTER,                                      )    OHIO
                                                        )
       Defendant-Appellant.                             )


Before: SILER, COOK, and GRIFFIN, Circuit Judges.

       SILER, Circuit Judge. Defendant J. Timothy Halter was convicted on one count of

possession of sexually explicit visual depictions of minors in violation of 18 U.S.C. § 2252(a)(4)(B).

Halter appeals, arguing, inter alia, that the statute under which he was convicted violates his First

Amendment right to free speech, that the verdict was based on insufficient evidence, and that

testimony from government witnesses violated his Confrontation Clause rights. Because none of

Halter’s myriad arguments has any merit, we affirm.

BACKGROUND

       Halter was president and part owner of Arrow Industrial Supply Inc., a business operating

in Westerville, Ohio. In 1999, police executed a search warrant for Halter’s office and seized a

computer and related materials. Officers found 50 images and two movies containing sexual
depictions of minors in the seized materials. Witnesses identified all of the children depicted in the

50 images and determined that each original photograph was taken outside of Ohio. A jury

convicted Halter of one count of possession of one or more sexually explicit visual depictions of

minors in violation of 18 U.S.C. § 2252(a)(4)(B).

ANALYSIS

Constitutional Issues

        Halter claims that the district court should have dismissed the indictment against him because

18 U.S.C. § 2252 violates his First Amendment right to free speech. He argues that 18 U.S.C. §

2252 relies on the term “child pornography,” as defined in 18 U.S.C. § 2256(8), and that the

application of this term was ruled unconstitutional in Ashcroft v. Free Speech Coalition, 535 U.S.

234 (2002). The use of the term “child pornography” that he challenges appears in 18 U.S.C. §

2252A. Therefore, his argument based on Free Speech Coalition fails because he was charged with

and convicted of possessing explicit images of real children under § 2252(a)(4)(B), not simulated

children or persons falsely represented to be children under § 2252A.

        Halter next claims that the term “knowingly” in § 2252(a)(4)(B) is unconstitutionally vague

and overbroad. His arguments fail again. First, a statute is void for vagueness if it does not give

adequate notice to people of ordinary intelligence concerning the conduct it proscribes, or if it invites

arbitrary and discriminatory enforcement. Kolender v. Lawson, 461 U.S. 352, 357 (1983); United

States v. Krumei, 258 F.3d 535, 537 (6th Cir. 2001). The meaning of the term “knowingly” is well-

settled. Bryan v. United States, 524 U.S. 184, 193 (1998) (stating “unless the text of the statute

dictates a different result, the term ‘knowingly’ merely requires proof of knowledge of the facts that

constitute the offense”). Section 2252(a)(4)(B) provides adequate notice to people of ordinary


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intelligence about the conduct it proscribes, namely, knowingly possessing sexually explicit images

of actual children.

       Second, the overbreadth doctrine prohibits the government from proscribing a “substantial”

amount of constitutionally protected speech judged in relation to the statute’s plainly legitimate

sweep. Virginia v. Hicks, 539 U.S. 113, 118-119 (2003). Halter’s argument that § 2252(a)(4)(B)

is overbroad because it chills persons who seek to exercise their right under Free Speech Coalition

to view simulated child pornography has no merit. A statute is not invalid simply because some

impermissible applications are conceivable. New York v. Ferber, 458 U.S. 747, 772 (1982)

(concluding that a New York statute prohibiting possession of child pornography was not

overbroad). In Ferber, the Supreme Court upheld against an overbreadth challenge a statute

criminalizing possession of child pornography even though it may have reached some protected

expression, such as medical textbooks and artistic works. Id. at 773. The Court upheld the statute

because it “seriously doubt[ed] . . . that these arguably impermissible applications of the statute

amount to more than a tiny fraction of the materials within the statute’s reach.” Id.

       Here, analogizing to Ferber, any arguably impermissible applications of the statute to citizens

who view simulated child pornography amount to no more than a tiny fraction of the materials within

the statute’s reach. United States v. Adams, 343 F.3d 1024, 1034-35 (9th Cir. 2003) (holding that

Ferber foreclosed the defendant’s argument that the definition of sexually explicit conduct used by

§ 2252(a)(4)(B) is overbroad because it could reach “simulated” sexual conduct). Furthermore, in

Free Speech Coalition, the Supreme Court expressed doubt that images of actual children and

simulated children were indistinguishable.




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       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.

535 U.S. at 254. Section 2252(a)(4)(B) is not unconstitutionally vague or overbroad.

Sufficiency of the Evidence

       Halter next claims that there is insufficient evidence to support his conviction. When

reviewing a sufficiency of the evidence claim, we determine whether “after viewing the evidence in

the light most favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979)

(emphasis in original).

       Drawing all inferences in favor of the prosecution, there is sufficient evidence to support

Halter’s conviction. First, a rational jury could have found beyond a reasonable doubt that Halter

knowingly possessed the images. The images were found on a computer in Halter’s office.

Information recovered from the computer showed that he was sending and receiving emails from his

work account at the same time he was participating in an internet chat room devoted to exchanging

sexually explicit images of children.

       Second, a rational jury could have found beyond a reasonable doubt that the images depicted

real children and were transported in interstate or foreign commerce. A jury can distinguish sexually

explicit images of actual children from images of simulated children. United States v. Farrelly, 389

F.3d 649, 655 (6th Cir. 2004), superseded on other grounds, Sentencing Commission deletion of

USSG § 2G2.4, as stated in United States v. Williams, 411 F.3d 675, 678 n.1 (6th Cir. 2005).

Witnesses identified all of the victims as real children based on their investigations into the



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production of the originals. The birth certificates of the victims proved that they were under 18 years

of age when the images were taken. All of the images listed in the indictment were originally taken

outside of Ohio and traveled via the internet to reach Halter.

       Finally, a rational jury could have found beyond a reasonable doubt that Halter knew the

images involved the use of an actual minor engaging in sexually explicit conduct. The images

depicted very young children. He visited internet chat rooms with names clearly indicating that the

purpose of the chat rooms was to exchange sexually explicit images of real children. His internet

activities never revealed an interest in images of simulated children or adults posing as children.

Evidentiary Issues

       Halter argues that the government’s authentication testimony violated the hearsay rule.

Because he did not object on hearsay grounds at trial, we review the district court’s decision to admit

the alleged hearsay testimony for plain error. Fed. R. Crim. P. 52(b). Halter claims in very general

terms that testimony by government witnesses relating to people, objects, and locations depicted in

the original images constituted hearsay because those witnesses were not present when the originals

were taken. This argument is meritless. Hearsay is an out-of-court statement offered for the truth

of the matter asserted. Fed. R. Evid. 801(c). The government witnesses testified in court based on

their personal knowledge of what was depicted in the images. Most of the witnesses met the victims

while conducting their respective investigations. They personally observed the people, objects, and

locations featured in the images. Therefore, the district court did not commit plain error by admitting

the testimony.

       Halter next argues that testimony by the four identification witnesses at trial violated his

rights under the Confrontation Clause. Testimonial out-of-court statements by a witness are barred


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under the Confrontation Clause, unless the witness is unavailable and the defendant had a prior

opportunity to cross-examine the witness. Crawford v. Washington, 541 U.S. 36, 53-54 (2004). He

argues that the identification witnesses offered a variety of Crawford-violating statements, such as

“the subject confessed,” when testifying about their investigations regarding the production of the

originals. We review Confrontation Clause issues de novo. United States v. Robinson, 389 F.3d

582, 592 (6th Cir. 2004).

       Halter’s counsel elicited most of the alleged Crawford-violating statements about which he

now complains when conducting cross-examination of government witnesses. Halter cannot

complain that Crawford bars statements that his own counsel elicited. Halter points to one

Crawford-violating statement that the United States elicited. When asked how he knew that the

image depicted an actual victim, a law enforcement officer testified that “the subject confessed.”

However, Confrontation Clause violations are subject to harmless error review. United States v.

Powers, 500 F.3d 500, 505-06 (6th Cir. 2007). A Confrontation Clause error is harmless only if the

government presented other evidence sufficient to show guilt beyond a reasonable doubt. Id. at 510.

       Even without this Crawford-violating statement, the United States proved beyond a

reasonable doubt that the victim was a real person under the age of 18. The law enforcement officer

interviewed the victim twice, and he was able to identify her as a real person by her facial features.

The victim’s birth certificate showed that she was under the age of 18 when the image was taken,

and she was still under the age of 18 when Halter was arrested in 1999. Therefore, the United States

proved beyond a reasonable doubt that the victim depicted in the image was a real person under the

age of 18 without the Crawford-violating statement.




                                                -6-
       Halter argues that the district court erred by admitting evidence of uncharged conduct

pursuant to Rule 404(b), such as emails expressing his interest in taking nude photographs of minors

and chat logs relating to exchanging sexually explicit images of children. However, he failed to

develop this argument through meaningful legal analysis or citation to the record.1 This failure

means he has waived the evidentiary issues on appeal. Fed. R. App. P. 28(a)(9)(A); Spirko v.

Mitchell, 368 F.3d 603, 612 (6th Cir. 2004).

Interstate Commerce and Jurisdiction

       Halter argues that the district court erred by refusing to grant his motion to dismiss for lack

of jurisdiction. His motion asserted that the district court lacked jurisdiction over this case because

his activities constituted mere intrastate possession of images, not interstate commerce. His

argument has no merit. Under 18 U.S.C. § 2252(a)(4)(B), federal jurisdiction is established by

showing that the image traveled in interstate or foreign commerce or that it was produced by

materials that have traveled in interstate commerce. The statute is facially constitutional. United

States v. Corp, 236 F.3d 325, 332 (6th Cir. 2001).

       The statute is constitutional as applied to Halter. In Corp, the 23-year-old defendant took

photos of his 17-year-old girlfriend engaging in consensual sexual activity and never transmitted the

images.    Id. at 326.   We sustained an as-applied challenge because the production of the

photographic paper in Germany did not substantially affect interstate or foreign commerce. Id. at

332. Here, the United States instead relied exclusively on the images traveled as a jurisdictional

basis. The jury instructions included as an element of the crime “that the visual depiction had been



       1
         His brief does little more than list the evidence that the district court admitted under Rule
404(b) and state that it should not have been admitted.

                                                 -7-
mailed, shipped, or transported in interstate or foreign commerce. . . .” Testimony revealed that the

images came from other states and countries. Because all of the images traveled in interstate

commerce to reach Halter, we deny his as-applied challenge.

Jury Instructions

        Halter argues that the district court improperly instructed the jury on interstate commerce and

improperly refused his proposed jury instruction. We review a district court’s choice of jury

instructions for abuse of discretion. United States v. Beaty, 245 F.3d 617, 621 (6th Cir.), cert.

denied, 534 U.S. 895 (2001). A trial court abuses its discretion only if the charge fails accurately

to reflect the law. Id. The district court judge instructed the jury that it could convict only if it found

beyond a reasonable doubt

        that the visual depiction had been mailed, shipped, or transported in interstate
        or foreign commerce, by any means including computer.

        The jury instructions clearly stated that the “thing” that must have traveled in interstate

commerce is the visual depiction. This instruction is clear and it accurately reflects the law. See 18

U.S.C. § 2252(a)(4)(B) (stating “video tapes, or other matter which contain any visual depiction”

must be shipped in interstate commerce). The district court did not abuse its discretion by refusing

Halter’s proposed jury instructions, which would have misled the jury by precluding it from

considering circumstantial evidence on the interstate commerce element.

Other Arguments

        Halter argues that the lack of specificity in the indictment deprived him of his due process

rights because it did not state whether the images he possessed met the definition of “child

pornography” under 18 U.S.C. § 2256(8)(A) or § 2256(8)(C). He then proceeds to attack §



                                                   -8-
2256(8)(C) as unconstitutional, primarily by rehashing his unsuccessful First Amendment argument

and relying on Free Speech Coalition. His argument fails again because the statute under which he

was convicted, 18 U.S.C. § 2252(a)(4)(B), is constitutional and he was convicted of possessing

images of actual children, not simulated children or persons falsely represented to be children.



       Halter argues that the district court erred by denying his motion to dismiss the indictment,

which the district court treated as a Rule 29 motion. The jury returned the guilty verdict on

November 18, 2005, and he filed the motion on December 29, 2005. Absent an extension from the

court, a Rule 29 motion must be filed within seven days of a guilty verdict or plea. Fed. R. Crim.

P. 29(c)(1). Therefore, the district court properly denied his motion as untimely.

       Finally, Halter argues that cumulative errors deprived him of his right to due process.

However, because he cannot establish any actual error, other than harmless Crawford error, his

cumulative error argument fails.

       AFFIRMED.




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