                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 98-2000
                                   ___________

United States of America,                 *
                                          *
             Appellee,                    *
                                          *   Appeal from the United States
      v.                                  *   District Court for the District
                                          *   of South Dakota.
Gary Scott Whiting,                       *
                                          *
             Appellant.
                                   ___________

                             Submitted: October 22, 1998

                                  Filed: January 19, 1999
                                   ___________

Before FAGG, ROSS, and BEAM, Circuit Judges.
                            ___________

BEAM, Circuit Judge.

       Gary Scott Whiting appeals his conviction in district court1 for possession of
child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). He asserts that pictures
stored on computer disks were not proscribed by the law at the time he possessed them.
We affirm.




      1
       The Honorable Richard H. Battey, United States District Judge for the District
of South Dakota.
I.    BACKGROUND

       The pertinent facts are not in dispute. Whiting worked as an assistant fire chief
and emergency medical technician for the Piedmont fire department from 1993 until
September 1996. Whiting used a computer at work and had access to the Internet from
that computer. After Whiting left the fire department, employees discovered some
computer disks next to the computer that Whiting had used. These disks contained
image files which, when viewed, depicted minors engaging in sexually explicit
conduct. These disks were turned over to the Sheriff's department, who then turned
them over to the FBI. The FBI also discovered a log kept by Whiting listing the
pictures he had, and those he wished to acquire. He was indicted in April 1997, for
possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). He
entered a guilty plea conditioned on the challenges discussed below. As a factual basis
for the guilty plea, Whiting admitted that in June 1996, he "knowingly possessed three
or more computer disks which contained visual depictions of minors engaging in
sexually explicit conduct," and that the images had been transported in interstate
commerce through the use of a computer.

       18 U.S.C. § 2252(a)(4)(B) prohibits the knowing possession of "3 or more
books, magazines, periodicals, films, video tapes, or other matter which contain any
visual depiction" of a minor engaged in explicit sexual conduct that has moved in
interstate commerce. At the time of Whiting's admitted conduct, the definition of
"visual depiction" read in its entirety, "'visual depiction' includes undeveloped film and
video tape." Former 18 U.S.C. § 2256(5) (1996). That definition was amended in
September 1996 by the Child Pornography Prevention Act of 1996, to read as follows:
"'visual depiction' includes undeveloped film and video tape, and data stored on
computer disk or by electronic means which is capable of conversion into a visual
image." 18 U.S.C. § 2256(5). This amendment gives rise to Whiting's appeal.




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II.   DISCUSSION

        Whiting raises two basic challenges to his conviction. First, he claims that the
application of the amended definition to conduct that occurred before its enactment
violates the ex post facto clause of the Constitution. In the alternative, he argues that
the law prior to the amendment was vague and that a conviction under the old statutory
definition on these facts violates the Due Process Clause of the Fifth Amendment. The
district court addressed and dismissed both of these contentions in an Order Denying
Motion to Dismiss.

       We review a district court's interpretation of federal statutes de novo. See Cedar
Rapids Comm. Sch. Dist. v. Garret F., 106 F.3d 822, 824 (8th Cir. 1997). The starting
point in interpreting a statute is always the language of the statute itself.2 See United
States v. Talley, 16 F.3d 972, 975 (8th Cir. 1994). If the intent of Congress can be
clearly discerned from the statute's language, the judicial inquiry must end. See
Citicasters v. McCaskill, 89 F.3d 1350, 1354-55 (8th Cir. 1996).

     Whiting's ex post facto argument hinges on his assertion that, prior to the
amendment, the term "visual depiction" did not encompass image data stored on


      2
       18 U.S.C. § 2252(a)(4)(B) reads:

      Any person who: (B) knowingly possesses 3 or more books, magazines,
      periodicals, films, video tapes, or other matter which contain any visual
      depiction that has been mailed, or has been shipped or transported in
      interstate or foreign commerce, or which was produced using materials
      which have been mailed or so shipped or transported, by any means
      including by computer, if–
             (i) the producing of such visual depiction involves the use
             of a minor engaging in sexually explicit conduct; and
             (ii) such visual depiction is of such conduct;
       shall be punished as provided in subsection (b) of this section.
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computer disks, thus he could only be convicted by a retroactive application of the new
definition. We disagree. Evaluating the statute as a whole, it is clear that images
stored on computer disks were prohibited by section 2252(a)(4)(B) prior to the
amendment. The change in the definition of "visual depiction," for purposes of section
2252(a)(4)(B), was a mere clarification and did not change the substance of the law.
The statute stated that "visual depiction" includes undeveloped film and video tape.
There is no language of limitation in this definition, as there is in other definitions
included in the same section ("minor" means any person under the age of eighteen
years; "organization" means . . .; "producing" means. . . ). See former 18 U.S.C. §
2256. When a statute uses the word "includes" rather than "means" in defining a term,
it does not imply that items not listed fall outside the definition. See Highway & City
Freight Drivers Local No. 600 v. Gordon Transports, Inc., 576 F.2d 1285, 1289 (8th
Cir. 1978). "Visual depictions" are not limited solely to undeveloped film and video
tapes. To argue otherwise would be to argue that photographs are not considered
"visual depictions" because they are not expressly mentioned, which would be
nonsense. There is no indication that images electronically stored in binary form were
excluded from the definition. Indeed, there is ample evidence that they were included.
Section 2252 expressly prohibits the possession of visual depictions that have moved
in interstate commerce, or are made using materials that have moved through interstate
commerce, by any means including computer. It is clear that Congress considered
images stored as data to be "visual depictions" because Congress expressly included
a mode of interstate transportation unique to computer data.

       As shown by the inclusion of undeveloped film and video tape, the term "visual
depictions" includes potential images as well as actual images, that is to say, images
that have already been produced, yet require additional processing to render them
viewable. In this regard, an image stored as data which can be read by a computer is
directly analogous to an image on video tape. They are both images stored as magnetic
signals that require processing by the use of a machine in order to view them. The fact
that they cannot be viewed as pornographic images until processed through the

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appropriate equipment does not place them outside the definition of "visual depiction"
for purposes of the statute. See United States v. Lamb, 945 F. Supp. 441, 452
(N.D.N.Y. 1996). Similarly, the Seventh Circuit has held that computer images are
equivalent to "visual depictions" for purposes of the Sentencing Guidelines. See
United States v. Hall, 142 F.3d 988, 998 (7th Cir. 1998).

        To accept Whiting's position would lead to the absurd conclusion that possession
and viewing of computer image files depicting minors engaged in explicit sexual
activity is completely lawful, and that the statute is violated only when those images
are printed on paper or transferred to video tape. An equally absurd conclusion would
be that transportation of child pornography by computer is prohibited, but that transfer
of electronic image data by computer is not. The Ninth Circuit has recently addressed
this very issue and, not surprisingly, arrived at the same conclusion. See United States
v. Hockings, 129 F.3d 1069, 1071-72 (9th Cir. 1997) (absurd to find that transportation
by computer was outlawed, but that computer image files were not included within the
definition of "visual depiction"). We find no merit in Whiting's contention that images
stored in files on computer disks are not "visual depictions" for the purposes of the
statute prior to its amendment.3

       The purpose of laws prohibiting child pornography is not to police the morals
of the public, but to protect children from the injuries that accompany and flow from,
sexual exploitation, particularly the production and distribution of child pornography.
See, e.g., New York v. Ferber, 458 U.S. 747, 756-58 (1982). By defining "visual
depiction" to include undeveloped film and video tape, Congress expressed its intent
to proscribe the possession of child pornography in any form, thus deterring the harm


      3
        Even prior to the amendment, the definition of "visual depiction" in section
2256 was broad enough to include images contained in any storage and retrieval or
storage and viewing medium, whether computer-oriented or not. If the manner in
which an image is stored allows it to be processed in such a way as to create a viewable
picture, then the stored image may be a "visual depiction" for purposes of section 2256.
                                          -5-
accompanying its creation. See Hockings, 129 F.3d at 1071-72. "The visual image
transported [or stored] in binary form starts and ends pornographically and that is what
Congress seeks to prohibit." Id. at 1072. Whiting advances no reasons why images
stored on computer disks are less harmful, or how their creation has less impact on
children, than photographs stored in shoeboxes. Because we find that images stored
on computer disks were encompassed by the original definition of "visual depiction,"
we find there was no retroactive application of a new law, and that Whiting was not
disadvantaged by the amendment. See United States v. Larson, 110 F.3d 620, 627 n.8
(8th Cir. 1997); United States v. St. John, 92 F.3d 761, 763 (8th Cir. 1996).

       In his due process challenge, Whiting asserts that, even if images stored as
computer data were covered by the original definition of "visual depiction," the statute
was so vague that it did not give him fair notice that his conduct was unlawful, since
computer disks were not expressly listed within the definition. A penal statute is
unconstitutionally vague if it does not define the offense well enough to let ordinary
people know what is prohibited. See Kolender v. Lawson, 461 U.S. 352, 357 (1983).
A lack of precision alone does not violate due process, but the Constitution requires
that "the language conveys sufficiently definite warning as to the proscribed conduct
when measured by common understanding and practices." Roth v. United States, 354
U.S. 476, 491 (1957) (citation omitted). Vagueness challenges such as Whiting's, that
do not involve First Amendment freedoms, must be examined in light of the facts of
the case at hand. See United States v. Mazurie, 419 U.S. 544, 550 (1975).

       In this case, Whiting admits that he sought out images of child pornography. He
downloaded the images from the Internet through interstate commerce using a
computer. He viewed them, stored them on disks, cataloged them, and made a list of
others he wished to acquire. Whiting admits the content of the images was in fact the
very subject matter precisely prohibited by the statute–minors engaged in "sexually
explicit conduct" as defined in section 2256(2). And the statute expressly includes
visual depictions that have been transported in interstate commerce via computer.


                                          -6-
Whiting merely argues that, after receiving these admittedly prohibited images through
interstate commerce via computer, the statute was vague as to whether possession of
those images on computer disks was prohibited. This argument is without merit. We
find the statute clearly provided notice that Whiting's conduct was prohibited. The
content of the images was plainly covered by the statute, as was the interstate
transportation of the images via computer. And though the definition in section
2256(5) did not expressly include computer image files, it referred, in expansive
language, to types of potential images which are the logical and functional equivalent
of computer image files. We find that the statute gave more than sufficient notice to
ordinary people that the images in question, stored on computer disks, were "visual
depictions" for purposes of section 2252(a)(4)(B).

III.   CONCLUSION

       The judgment of the district court is affirmed.

       A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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