In the
United States Court of Appeals
For the Seventh Circuit

No. 01-1368

United States of America,

Plaintiff-Appellee,

v.

David Daniel Anderson,

Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Wisconsin.
No. 00 CR 61--Barbara B. Crabb, Chief Judge.

Argued November 27, 2001--Decided February 12, 2002


  Before Bauer, Harlington Wood, Jr. and
Manion, Circuit Judges.

  Bauer, Circuit Judge. A jury convicted
David Daniel Anderson of possessing
images of child pornography on a computer
hard drive that had been transported in
interstate commerce. He appeals the
sufficiency of the indictment. For the
reasons set forth below, we find the
indictment sufficient to uphold
Anderson’s conviction and sentence.

BACKGROUND

  On November 8, 1998, in the course of an
investigation regarding the internet
transmission of child pornography,
customs agents searched the home of David
Anderson and seized his computer, storage
disks and other items. The agents
discovered several images of child
pornography on Anderson’s computer hard
drive. Anderson voluntarily informed the
agents that he possessed up to 1,000
images of child pornography, that he sent
and received these images over the
internet and that he stored most of his
pornographic material on his F drive.
Anderson also told the agents that he
knew it was illegal to possess child
pornography.

  On July 19, 2000, a federal grand jury
returned a two-count indictment against
Anderson. Count One charged Anderson with
possession of child pornography in
violation of 18 U.S.C. sec.
2252A(a)(5)(B). In particular, the
indictment stated:

That on or about November 10, 1998,
within the Western District of Wisconsin,
the defendant David Daniel Anderson,
a/k/a "whisper," a/k/a "nightwatchman@
usa.net," did knowingly possess a
material, that is a computer hard drive,
that contained one or more images of
child pornography, as that term is
defined by Title 18, United States Code,
Section 2556(8), that hard drive having
been previously shipped and transported
in interstate commerce and which was
produced using materials which had been
shipped and transported in interstate or
foreign commerce.

Count Two of the indictment charged
Anderson with forfeiture of the computer
equipment and storage media used to
possess child pornography, pursuant to 18
U.S.C. sec. 2253.

  In November of 2000, Anderson was tried
by a jury. At trial, a customer service
representative for Western Digital
testified for the government that the
Western Digital hard drive found in
Anderson’s computer was previously trans
ported in interstate commerce since it
was manufactured in Malaysia and later
refurbished in Singapore before it was
shipped to the United States. The
government also introduced considerable
evidence that Anderson had downloaded or
copied numerous child pornography images
using his hard drive. Anderson also
testified that he often downloaded
sexually explicit pictures, saving them
to his computer hard drive.

  At the close of the evidence, the court
instructed the jury, among other things,
that to sustain the charge of possession
of images of child pornography on a
computer hard drive, the government must
prove:

(1) That on or about the date charged in
Count One, the defendant possessed a
computer hard drive which contained
images of child pornography; (2) the
defendant knew there were images of child
pornography on his computer hard drive;
and (3) the defendant’s computer hard
drive had previously been transported in
interstate commerce or had been produced
using materials that had been shipped or
transported in interstate or foreign
commerce.

Anderson did not object to the jury
instructions concerning the elements of
the charge. He was convicted and
subsequently sentenced to 60 months
imprisonment followed by 3 years of
supervised release. Anderson made no
post-verdict motion for judgment of
acquittal challenging the indictment.
This appeal followed.

DISCUSSION

  On appeal, Anderson argues that his
indictment was insufficient because it
failed to adequately charge the crime for
which he was ultimately convicted. In
particular, Anderson asserts that the
indictment was defective in that it
charged only that his computer hard drive
"contained" images of child pornography
even though the criminal statute requires
proof that his computer hard drive
"produced" such images. We review a
challenge to the sufficiency of an
indictment de novo. United States v.
Torres, 191 F.3d 799, 805 (7th Cir.
1999).

  The Fifth Amendment guarantees the right
to an indictment by grand jury and serves
as a bar to double jeopardy, while the
Sixth Amendment guarantees that a
defendant be informed of the charges
against him. United States v. Hinkle, 637
F.2d 1154, 1157 (7th Cir. 1981). These
constitutional mandates establish three
minimum requirements for an indictment.
First, it must adequately state all of
the elements of the crime charged;
second, it must inform the defendant of
the nature of the charges so that he may
prepare a defense; and finally, the
indictment must allow the defendant to
plead the judgment as a bar to any future
prosecution for the same offense. United
States v. Smith, 230 F.3d 300, 305 (7th
Cir. 2000).

  In setting forth the offense, the
indictment should generally "track" the
words of the statute itself, "so long as
those words expressly set forth all the
elements necessary to constitute the
offense intended to be punished." Id. It
is required, at a minimum, that an
indictment provide the defendant with
some means of "pinning down the specific
conduct at issue." Id. The absence of any
particular fact is not necessarily
dispositive of the issue. Id. Further, we
review indictments "on a practical basis
and in their entirety, rather than in a
hypertechnical manner." Id. (internal
citations omitted).

  Anderson did not challenge the
indictment in the district court. A
defendant may first challenge the
sufficiency of an indictment at any time
during the pendency of the proceedings,
including on appeal. Fed. R. Crim. P.
12(b)(2). However, if an indictment has
"not been challenged in the trial court,
it is immune from attack unless it is so
obviously defective as not to charge the
offense by any reasonable construction."
United States v. Smith, 223 F.3d 554, 571
(7th Cir. 2000). Absent extraordinary
circumstances, "tardily challenged
indictments should be construed liberally
in favor of validity." Smith, 230 F.3d at
306 n. 3.

  Applying these standards, while we agree
with Anderson that the indictment in the
instant case is flawed, we do not find it
is so deficient that it must now be set
aside. Section 2252A(a)(5)(b) states that
any person who "knowingly possesses . . .
material that contains an image of child
pornography . . . that was produced using
materials that have been mailed, or
shipped or transported in interstate or
foreign commerce by any means, including
a computer, shall be punished." 18 U.S.C.
sec. 2252A(a)(5)(b) (emphasis added).
Anderson is correct that the indictment
should have charged that his hard drive
actually produced the pornographic
images, rather than stating only that the
computer contained the images. However,
we have consistently held that "in
determining whether an essential element
of the crime has been omitted from the
indictment, courts will not insist that
any particular word or phrase be used."
United States v. Garcia-Geronimo, 663
F.2d 738, 742 (7th Cir. 1981); Smith, 223
F.3d at 572. Because we review
indictments liberally at this stage in
the proceedings, we do not find that the
failure to reference the specific
production of the pornographic images on
the hard drive renders the indictment so
deficient that it must now be set aside.
  At trial, the government established the
jurisdictional element of 18 U.S.C. sec.
2252A(a)(5)(b) with testimony that the
hard drive had previously been
transported in interstate commerce.
Additionally, the government proved by
overwhelming evidence that Anderson
downloaded or copied the images of child
pornography using his computer hard
drive. Anderson’s own testimony bolstered
the government’s proof of this fact.
Computerized images are produced when
computer equipment is used to copy or
download the images. United States v.
Angle, 234 F.3d 326, 341 (7th Cir. 2000).
The government’s evidence that Anderson
downloaded such images satisfies 18
U.S.C. sec. 2252A(a)(5)(b), which
requires that a hard drive produce the
illegal images. Id. Thus, all the
elements of the offense were established
at trial.

  Because Count One of the indictment
stated that Anderson’s hard drive
contained the pornographic images, it ad
equately set forth the elements of the
intended crime. This notified Anderson of
the particular conduct at issue, thereby
enabling him to prepare his defense. See,
e.g., Smith, 230 F.3d at 306. A
reasonable review of the indictment would
sufficiently inform Anderson of the
nature of the charges filed against him.
Accordingly, the constitutional mandates
for an indictment were met.

CONCLUSION

  We find that Anderson’s indictment was
legally sufficient and therefore, we
AFFIRM his conviction and sentence.
