                                                         FILED
                                            United States Court of Appeals
                                                    Tenth Circuit

                                                 February 24, 2012
                                 PUBLISH        Elisabeth A. Shumaker
                                                    Clerk of Court
              UNITED STATES COURT OF APPEALS

                           TENTH CIRCUIT



UNITED STATES OF AMERICA,

         Plaintiff - Appellee,
    v.                                     No. 09-1386
KENNETH DEAN STURM,

         Defendant - Appellant.


          ON REHEARING EN BANC FROM AN APPEAL
         FROM THE UNITED STATES DISTRICT COURT
              FOR THE DISTRICT OF COLORADO
                (D.C. NO. 1:06-CR-00342-LTB-1)



UNITED STATES OF AMERICA,

         Plaintiff - Appellee,
    v.                                     No. 09-5022
CHRISTOPHER ADAM DAYTON,

         Defendant - Appellant.


           ON REHEARING EN BANC FROM AN APPEAL
          FROM THE UNITED STATES DISTRICT COURT
         FOR THE NORTHERN DISTRICT OF OKLAHOMA
                (D.C. NO. 4:07-CR-00076-TCK-1)
Kathleen A. Lord, Assistant Federal Public Defender (Raymond P. Moore,
Federal Public Defender, with her on the briefs), Denver, Colorado, for Appellant
Sturm.

Michael G. McGuire, Attorney at Law, Tulsa, Oklahoma, for Appellant Dayton.

Judith A. Smith, Assistant United States Attorney, Denver, Colorado (John F.
Walsh, United States Attorney, District of Colorado, Denver, Colorado; Thomas
Scott Woodward, United States Attorney, Northern District of Oklahoma and
Leena Alam, Assistant United States Attorney, Tulsa, Oklahoma, with her on the
briefs), for Appellee United States of America.


Before BRISCOE, Chief, Judge, HOLLOWAY, BALDOCK, KELLY,
LUCERO, MURPHY, HARTZ, O’BRIEN, TYMKOVICH, GORSUCH,
HOLMES, and MATHESON, Circuit Judges.


MURPHY, Circuit Judge.


I.    Introduction

      Appellant Christopher Adam Dayton was convicted of distributing and

possessing child pornography, in violation of 18 U.S.C. § 2252(a)(2) and

(a)(4)(B). Appellant Kenneth Dean Sturm was convicted of receiving and

possessing child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(B) and

(a)(5)(B). Both Defendants argue the Government cannot prove the interstate

commerce element of the crimes charged unless it presents evidence the specific

digital images they possessed, received, and/or distributed traveled in interstate or

foreign commerce. We conclude to the contrary: the Government may satisfy the

jurisdictional element of each of the statutes at issue if it presents evidence that


                                          -2-
the substantive content of the images has, at some point, traveled in interstate or

foreign commerce.

II.   Factual Background

      A.     Appellant Dayton

      The criminal charges against Dayton stemmed from an investigation

initiated by FBI Special Agent Joseph Cecchini. By conducting a keyword search

on LimeWire, a peer-to-peer file sharing program, and entering a search term

commonly associated with child pornography, Cecchini located files containing

the term on the computer of a LimeWire user who had been assigned the IP

address 68.12.237.195. Cecchini downloaded four complete or partial video files

from the 323 files available on the shared folder of this LimeWire user. 1

      Cecchini subpoenaed Cox Communications, the Internet service provider

that had assigned the 68.12.237.195 IP address to one of its subscribers. In

response to the subpoena, Cox provided the subscriber’s personal information and

investigators obtained a search warrant for a physical address in Tulsa, Oklahoma.

When officers executed the warrant on the morning of April 18, 2007, Dayton

answered the door. While other officers conducted the search, Cecchini and a

second officer interviewed Dayton inside the residence. Dayton admitted


      1
        Agent Cecchini testified that the FBI runs a specially engineered version
of LimeWire that permits investigators to download a file from just one
identifiable IP address instead of downloading portions of the complete file from
many different shared folders.
                                         -3-
subscribing to the Cox Communications account. He also admitted using

LimeWire to download child pornography and maintaining a shared folder visible

to other LimeWire users containing, among other things, images and videos of

child pornography. During the interview, Dayton wrote out the following

statement: “[A]bout 3-4 months ago I started to use limewire and axedentle [sic]

saw child porn and started to download it. I hated myself for it and deleted it.

But I download[ed] it agen [sic] and I’m sorry. And burned it to 3 cds.”

      During the search of Dayton’s home, officers seized computer hard drives

and 169 compact disks. Based on the content of the seized materials, Dayton was

charged in a two-count indictment with violating 18 U.S.C. § 2252(a)(2) and

§ 2252(a)(4)(B). Specifically, the indictment charged Dayton

      did knowingly distribute and attempt to distribute visual depictions
      of minors engaging in sexually explicit conduct, as that term is
      defined in Title 18, United States Code, Section 2256(2)(A)(i-v), to
      wit: video files, including but not limited to a filed named [ ].mpg,
      each of which video files had been shipped and transported in
      interstate or foreign commerce, the producing of each of which video
      files involved the use of minors engaging in sexually explicit
      conduct, and each of which video files were of such conduct, in
      violation of Title 18, United States Code, Section 2252(a)(2).

and

      knowingly possessed and attempted to possess visual depictions of
      minors engaging in sexually explicit conduct, as that term is defined
      in Title 18, United States Code, Section 2256(2)(A)(i-v), to wit:
      video files and graphic image files, including but not limited to a file
      named [ ].mpg, each of which files had been transported in interstate
      or foreign commerce by computer, the producing of each of which
      files involved the use of minors engaging in sexually explicit

                                         -4-
      conduct, and each of which files were of such sexually explicit
      conduct, in violation of Title 18, United States Code, Section
      2252(a)(4)(B).

Before trial, Dayton moved to dismiss the indictment for failure to establish the

interstate nexus element of the statute. Specifically, he argued Cox

Communications’s server was located wholly within the state of Oklahoma and all

the visual depictions of children engaging in sexually explicit conduct he acquired

or distributed using his account with Cox were routed only through that server.

The district court took Dayton’s motion under advisement until the close of the

Government’s trial evidence.

      At trial, the prosecution played the four video files Cecchini downloaded

from Dayton’s LimeWire shared folder while Cecchini described to the jury the

acts of child sexual abuse portrayed in the videos. A Tulsa pediatrician opined

that the children in images found on Dayton’s computer were minors and testified

a child in one of the videos was much younger than twelve and “could easily be

under eight.” Relevant to the question of the interstate movement of the visual

depictions possessed by Dayton, Cecchini testified he had seen all four videos

before and FBI investigators had previously downloaded them from foreign

countries and from “every state but two.” Cecchini also testified the child in one

of the videos is from Richland, Washington. On cross-examination, Cecchini

reiterated he used LimeWire to download the files directly from a shared folder




                                         -5-
on Dayton’s computer. 2 Cecchini restated that the FBI had downloaded the same

files from users with IP addresses in other states but admitted there was no way

for him to tell where or how Dayton obtained the specific files discovered on his

hard drive and on the compact disks seized from his home because logs or records

of that activity do not exist. Cecchini also testified that both his office and

Dayton’s home are located in the state of Oklahoma. In response to a question

from the court at the end of re-cross, Cecchini testified that a LimeWire user like

Dayton who makes files on his shared folder available for download by other

LimeWire users, cannot limit access to the shared folder based on the

geographical location of the other LimeWire users.

      The Government also presented the testimony of Christopher Trifiletti, an

FBI Special Agent who specializes in the identification of victims of internet

crimes against children. Agent Trifiletti testified he had traveled to Paraguay as

part of an investigation into the identity of minor children whose images had been

posted to Internet news groups in the United States. The individual who

photographed the children and originally posted them on the Internet for profit

was identified as a Paraguayan named Milton Xischatti Michel. While in

Paraguay, Trifiletti interviewed victims and their parents, ultimately confirming

the identity of fifteen Paraguayan children. Paraguayan national identity cards or


      2
       Dayton told investigators he had used LimeWire to download the files he
saved to his shared folder and had burned some of the files onto compact disks.

                                         -6-
birth certificates established the ages of the children as between nine and thirteen

years. Agent Trifiletti specifically identified the children in three of the images

seized from Dayton’s home as three children he met and interviewed while he was

in Paraguay. He also confirmed that the photographs were taken in Paraguay and

none of the children in the images have ever left Paraguay. Trifiletti further

testified that one child was ten years old at the time her photograph was taken and

the other two children were twelve.

      At the close of the Government’s case, Dayton renewed his motion to

dismiss the indictment, arguing the Government failed to produce sufficient

evidence to satisfy the interstate commerce element of 18 U.S.C. § 2252(a)(2) and

(a)(4)(B). Relying on dicta in United States v. Schaefer, 501 F.3d 1197, 1206

(10th Cir. 2007), Dayton argued the Government’s evidence did not establish

exactly how the digital files came into his possession and failed to establish that

the digital files Agent Cecchini downloaded from his LimeWire shared folder

traveled in interstate commerce when they moved from his computer in Oklahoma

to the FBI computer which was also in Oklahoma. The district court denied

Dayton’s motion as to seven images, concluding the Government met its burden

by presenting evidence the images were created outside the state of Oklahoma

and, thus, at some point traveled in interstate commerce.

      The jury found Dayton guilty on both counts charged in the indictment.

The district court sentenced him to a sixty-three month term of incarceration.

                                         -7-
Dayton appealed his convictions, arguing the Government failed to meet its

burden of proving the jurisdictional element of the charged offenses. A divided

panel of this court agreed with Dayton, concluding the Government was required,

but failed, to present evidence that the particular images seized during the search

of Dayton’s home crossed state lines when they moved from Dayton’s LimeWire

shared folder to Agent Cecchini’s computer or when they were downloaded by

Dayton and saved to his computer hard drive or a compact disk. United States v.

Dayton, 426 F. App’x 582, 598-99 (10th Cir. 2011), vacated, United States v.

Sturm, Nos. 09-1386, -5022, 2011 WL 6261657 (10th Cir. Apr. 4, 2011) (en

banc). This court sua sponte granted rehearing en banc and vacated the panel

decision. Sturm, 2011 WL 6261657, at *1.

      B.     Appellant Sturm

      The charges against Appellant Sturm arose from an investigation initiated

by United States Immigration and Customs Enforcement (ICE). An ICE

investigator gained access to an Internet website containing images of child

pornography by purchasing a twenty-day subscription for $79.99. After the

investigator received an email from a Hotmail account which confirmed his

subscription and contained links to the website, he obtained authorization to

intercept communications from this Hotmail account. One of those

communications permitted the investigator to view the order information for a

subscriber who had chosen the login name, Searcher1960, and the password,

                                         -8-
deanos. This subscriber gave the email address dean30502@aol.com, the first

name Kenneth, and the last name Sturm. He also provided his street address and

credit card information. After reviewing information obtained from America

Online (AOL), an ICE investigator confirmed the subscriber using the AOL

account associated with the email address dean30502@aol.com was Appellant

Sturm.

      On August 10, 2006, agents executed a search warrant for Sturm’s

residence in Colorado. No computers were located during the course of that

search but agents later determined that two computers from Sturm’s residence

were in the possession of the Rocky Mountain Regional Forensic Laboratory.

Sturm had surrendered them to his probation officer on May 5th, 2006, 3 and they

were subsequently seized by law enforcement after Sturm’s probation officer

detected what appeared to be an image of child pornography on one of the hard

drives. A duplicate copy of the hard drive was created and sent to ICE Special

Agent Patrick Redling for forensic testing. Agent Redling found nineteen images

of child pornography in a file designated as thumbs.db. The location of these

images on Sturm’s hard drive indicated he had previously saved full-size versions

to a folder on his hard drive named “My Pictures.” A folder in Sturm’s temporary



      3
       The monitoring of Sturm’s computers by the probation officer stemmed
from Sturm’s 2003 Ohio conviction for pandering sexually oriented matter
involving a minor.

                                       -9-
Internet cache and unallocated space on his hard drive contained more than 180

additional images of child pornography.

      Sturm was charged with violating 18 U.S.C. § 2252A(a)(5)(B) by

“knowingly and unlawfully possess[ing] material that contained an image of child

pornography, as defined in Title 18, United States Code, Section 2256(8)(A), that

had been mailed, shipped and transported in interstate and foreign commerce by

any means, including by computer.” The indictment referenced Sturm’s hard

drive model and serial number and specifically identified three images contained

thereon as “digital images of child pornography.” In a second count, Sturm was

charged with violating 18 U.S.C. § 2252A(a)(2)(B) by “knowingly and unlawfully

receiv[ing] material that contained one or more images of child pornography, as

defined in Title 18, United States Code, Section 2252(8)(A), that had been

mailed, shipped and transported in interstate and foreign commerce by any means,

including by computer.”

      Trial evidence relevant to the jurisdictional element of the crimes charged

included Agent Redling’s testimony that his analysis of Sturm’s hard drive

showed that the images charged in Count One of the indictment were purposefully

saved to the hard drive as the user viewed web pages on the Internet. There was

additional testimony that Sturm accessed the Internet exclusively through AOL.

The Director of Investigations and Global Security for AOL testified that Sturm

created an AOL account on September 20, 2004, with the primary screen name of

                                       -10-
deano30502. This witness also testified that any Internet search performed by an

AOL subscriber in Colorado necessarily involves data transmissions routed to

Colorado through servers located in either California or Virginia.

      The parties proffered two different jury instructions on the interstate

commerce element. At the final jury instruction conference, the district court

agreed to give the instruction proposed by the Government with the addition of a

sentence requested by Sturm. With that addition, the jury was instructed as

follows on the jurisdictional element:

             The phrase “transported in interstate commerce” means that
      the visual depiction, at any time, traveled or moved between any
      place in a state and any place outside of that state, or from any place
      in one country and any place outside of that country. Thus, any time
      an object moves or travels across state lines or moves or travels from
      one State to another State, or from one country to another country, it
      has traveled in interstate commerce.

             Although the Government must prove beyond a reasonable
      doubt that visual depictions were transported in interstate or foreign
      commerce, it is not necessary for the Government to establish that
      the defendant knew that state lines were actually being crossed or
      that the image traveled in interstate or foreign commerce.

             To prove that a specific image has been transported in
      interstate or foreign commerce, it is not enough for the Government
      to prove only that the image was viewed from the Internet.

      The jury found Sturm guilty of both offenses charged in the indictment.

The district court sentenced him to concurrent terms of 120 months’

imprisonment on Count One and 180 months’ imprisonment on Count Two. He

was also sentenced to a twenty-year term of supervised release. After sentencing,

                                         -11-
Sturm filed this direct appeal challenging, among other things, the jury instruction

on the interstate commerce element. 4 A panel of this court unanimously rejected

Sturm’s argument that the jury was improperly instructed because the

Government was required to prove that the specific digital files found on his

computer traveled in interstate commerce. United States v. Sturm, 425 F. App’x

666, 673-74 (10th Cir. 2011), vacated, Nos. 09-1386, -5022, 2011 WL 6261657

(10th Cir. April 4, 2011) (en banc). The panel opinion was vacated when the en

banc court sua sponte granted rehearing. Sturm, 2011 WL 6261657, at *1.

III.   Discussion

       A.    Standard of Review

       We review de novo Dayton’s challenge to the sufficiency of the evidence.

United States v. Cooper, 654 F.3d 1104, 1115 (10th Cir. 2011). Sturm’s

challenge to the jury instruction is likewise reviewed do novo because it is

premised on an argument the instruction failed to accurately inform the jury of the

correct law. Jones v. United Parcel Service, Inc., No. 09-3275, 2011 WL

5027642, at *7 (10th Cir. Oct. 24, 2011). To the extent our review implicates

questions of statutory interpretation, those are also reviewed de novo. United

States v. Yeley-Davis, 632 F.3d 673, 681 (10th Cir. 2011).


       4
       Sturm did not challenge the sufficiency of the evidence the Government
presented to show the jurisdictional element. He stipulated that the images
underlying both counts involved minor children and depicted acts that took place
outside the state of Colorado.

                                        -12-
      B.     Visual Depiction

      Dayton was convicted of distributing visual depictions of minors engaging

in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(2), and

possessing visual depictions of minors engaged in sexually explicit conduct, in

violation of 18 U.S.C. § 2252(a)(4)(B). At the time Dayton was charged, the

Government was required to prove the visual depictions had been mailed,

shipped, or transported in interstate or foreign commerce. 18 U.S.C.

§ 2252(a)(2), (a)(4)(B) (2006). Sturm was convicted of receiving child

pornography, in violation of 18 U.S.C. § 2252A(a)(2)(B), and possessing child

pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). At the time Sturm was

charged, the term child pornography was defined, in relevant part, as “any visual

depiction, including any photography, 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 engaging in

sexually explicit conduct.” 18 U.S.C. § 2256(8) (2006). 5 To convict Sturm, the


      5
       Our analysis is limited to the version of the statute in effect at the time of
the Defendants’ conduct. Sturm’s crimes were committed between January 1,
2005, and May 5, 2006; Dayton’s crimes were committed on March 30, 2007. We
focus on the version of the statutes in effect between April 30, 2003, and October
8, 2008, including amendments made in 2006 by the Adam Walsh Child
Protection and Safety Act (“AWCPSA”). See Pub. L. No. 109-248, 120 Stat. 587,
614, 648-649 (July 27, 2006). The changes set out in the AWCPSA do not affect
                                                                         (continued...)

                                         -13-
Government was required to prove the child pornography had “been mailed, or

shipped or transported in interstate or foreign commerce by any means, including

by computer.” 18 U.S.C. § 2252A(a)(2)(B), (5)(B) (2006).

      The challenges raised by both Dayton and Sturm implicate the

Government’s burden of proving the interstate commerce element of the crimes

charged. Dayton argues each copy of an image depicting minors engaged in

sexually explicit conduct is a separate and distinct visual depiction and the

Government presented insufficient evidence that the specific digital files he was

convicted of possessing and distributing traveled in interstate or foreign

commerce. Sturm similarly argues the Government was required to prove the

specific digital files he was convicted of receiving and possessing traveled in

interstate or foreign commerce and the instruction given by the district court

permitted the jury to convict him without so finding. The Government counters

that it can meet its burden by proving that the substance of such digital files—the

particular portrayal of a minor engaging in sexually explicit conduct—traveled in

interstate or foreign commerce in some form at some point in time. The parties,

thus, disagree over whether a specific digital transmission or specific physical

object, or merely the substantive content of that transmission or object, must cross

state lines. Because child pornography is defined by reference to the definition of


      5
        (...continued)
the issue raised by Sturm that is currently before this court.

                                         -14-
visual depiction, the resolution of Sturm’s challenge to the jury instruction, like

Dayton’s challenge to the sufficiency of the evidence, hinges on the meaning of

the term “visual depiction.” 6 We begin our analysis of the parties’ competing

arguments by examining the language of the applicable statutes, interpreting that


      6
       The parties were ordered to file supplemental briefs addressing the
following question:

      Whether the jurisdictional element of 18 U.S.C. §§ 2252 and 2252A
      requires proof that the particular image of child pornography that is
      the identified object of the defendant’s statutorily proscribed
      possession, receipt, or distribution traveled in interstate or foreign
      commerce, or whether it is sufficient to establish the jurisdictional
      element to show that the original or some other iteration of that
      image traveled in interstate or foreign commerce at some point prior
      to the defendant’s alleged commission of the charged crime? In
      other words, does the term “visual depiction,” as employed in 18
      U.S.C. §§ 2252 and 2252A, refer specifically to the particular image
      possessed, received, or distributed by the defendant, or does it
      instead refer to the substance of an image of child pornography and
      thereby encompass not only the particular image possessed, received,
      or distributed by the defendant, but also any prior generations of that
      image, including the original?

United States v. Sturm, Nos. 09-1386, -5022, 2011 WL 6261657, at *1 (10th Cir.
April 4, 2011) (en banc). It is immaterial for purposes of our statutory analysis
that the indictment charged Dayton with possessing “files” that “had been
shipped and transported in interstate or foreign commerce as opposed to “visual
depictions” that had been so transported. Under well-settled principles, the
indictment clearly gave Dayton fair notice of the charges against him and he does
not argue otherwise. United States v. Gama-Bastidas, 222 F.3d 779, 785 (10th
Cir. 2000) (“An indictment is sufficient if it sets forth the elements of the offense
charged, puts the defendant on fair notice of the charges against which he must
defend, and enables the defendant to assert a double jeopardy defense.”
(quotation omitted)). The use of the term “files” in the indictment neither
narrows the scope of the statute Dayton was charged with violating nor informs
the statutory question currently before this court.
                                         -15-
language “in light of the purposes Congress sought to serve.” Been v. O.K.

Indus., 495 F.3d 1217, 1227 (10th Cir. 2007) (quotation omitted).

      As amended by The Child Pornography Prevention Act of 1996, Pub. L.

No. 104-208, 110 Stat. 3009, 3009-26 to -28 (Sept. 30, 1996), visual depiction

was defined in the relevant version of the statute to include “data stored on

computer disk or by electronic means which is capable of conversion into a visual

image” as well as “undeveloped film and videotape.” 18 U.S.C. § 2256(5)

(2006). Because the definition is non-exhaustive and could be construed in a way

that is consistent with either of the two positions advanced here, we must look to

other provisions of the statutes to discern its meaning. We first look to the

statutes Dayton and Sturm were charged with violating.

      Defendant Dayton was convicted of violating 18 U.S.C. § 2252(a)(2) which

makes it a crime to, inter alia, knowingly distribute or receive any visual

depiction when “the producing of such visual depiction involves the use of a

minor engaging in sexually explicit conduct; and such visual depiction is of such

conduct.” (emphasis added). Under the approach advocated by Defendants, this

provision of § 2252(a)(2) would not extend to conduct involving the receipt or

distribution of any image other than the original image. Even though the

substantive content of a copy would be identical to that of the original, under

Defendants’ interpretation of the term visual depiction, distribution of the copy

would not be covered by the statute because only the production of the original

                                         -16-
involved “the use of a minor engaging in sexually explicit conduct.” This is

contrary to the express language of § 2252 which also criminalizes the knowing

reproduction of “any visual depiction for distribution in interstate or foreign

commerce” if the “producing of such visual depiction involves the use of a minor

engaging in sexually explicit conduct; and such visual depiction is of such

conduct.” 18 U.S.C. § 2252(a)(2) (2006). This language was added when the

statute was amended by the Child Protection Act of 1984, Pub. L. No. 98-292, 98

Stat. 204, 204 (May 21, 1984). The stated purpose of the amendment was to

“close[ ] a loophole which has required proof that the producers of child

pornography actually use the child depicted in the production of the material” and

to “make prosecution of those who make or produce child pornography easier by

applying the offense to those who merely reproduce such materials for

distribution.” H.R. Rep. No. 98-536 (1983), reprinted in, 1984 U.S.C.C.A.N.

492, 498. Further, when the Protection of Children Against Sexual Exploitation

Act of 1977 was originally enacted, the Senate expressed its concern that images

of child pornography can be quickly and cheaply reproduced:

      It should also be remembered that in reproducing [child
      pornography] thousands of copies can be made from a single
      negative. As a result, the cost[s] of producing child pornography are
      minimal but the profits are often enormous. . . . [A] cheap home
      movie camera can be used to produce a film that will sell thousands
      of copies for $75 to $200 each.




                                         -17-
S. Rep. No. 95-438, at 4 (1977), reprinted in, 1978 U.S.C.C.A.N. 40, 44. Thus, it

is clear Congress intended to criminalize the receipt and distribution of copies,

prosecution of which would be foreclosed under Defendant’s reading of the term

visual depiction. Thus, Defendants’ position is not consistent with the plain

language of § 2252 or congressional intent.

      Defendant Sturm was convicted of violating 18 U.S.C. § 2252A(a)(2)

which criminalizes, in part, the knowing distribution or receipt of child

pornography, defined to include visual depictions of sexually explicit conduct, the

production of which, “involves the use of a minor engaging in sexually explicit

conduct.” 18 U.S.C. § 2256(8)(A) (2006). As we have already concluded, supra,

under Defendants’ interpretation of the term visual depiction this provision

effectively criminalizes only the distribution or receipt of the original image.

Section 2256(8), however, also defines child pornography to include digital or

computer-generated images “that [are], or [are] indistinguishable from, that of a

minor engaging in sexually explicit conduct” and images created to “appear that

an identifiable minor is engaging in sexually explicit conduct.” Id. § 2256(8)(B),

(C). Even under Defendants’ illogically narrow interpretation of the term visual




                                         -18-
depiction, § 2256(8)(B) and (C) 7 extend the reach of § 2252A to the receipt and

distribution of copies.

      Under the doctrine of in pari materia, however, this court should not

consider § 2256(8)(B) and (C) in isolation from § 2256(8)(A). We must, instead,

construe the term visual depiction in a way that gives full effect to all the

subparts of the statute. Likewise, § 2252 and § 2252A should also be construed

in pari materia because both statutory provisions criminalize similar conduct.

The term visual depiction, thus, must have the same meaning under both sections

and that meaning must be consistent with the overall statutory scheme. Like

§ 2252(a)(2), § 2252A(3)(A) expressly criminalizes the reproduction of child

pornography. 18 U.S.C. § 2252A(3)(A). Further, when Congress enacted the

PROTECT Act, which made amendments to § 2252A and § 2256, including the

addition of § 2252A(3)(A), it found that “[c]hild pornography circulating on the

Internet has, by definition, been digitally uploaded or scanned into computers and

has been transferred over the Internet, often in different file formats, from

trafficker to trafficker. An image seized from a collector of child pornography is

      7
       These two provisions are supported by congressional findings
underpinning the PROTECT Act. Pub. L. No. 108-21, 117 Stat. 650, 676-78
(April 30, 2003). Congress found “[t]here is no evidence that the future
development of easy and inexpensive means of computer generating realistic
images of children would stop or even reduce the sexual abuse of real children or
the practice of visually recording that abuse.” 117 Stat. 650, 678. Congress
expressed its concern that the failure to criminalize the possession of computer-
generated child pornography would “threaten[] to render child pornography laws
that protect real children unenforceable. ” Id.

                                         -19-
rarely a first-generation product . . . .” Pub. L. No. 108-21, 117 Stat. 650, 677

(April 30, 2003). The findings also reference original images that have “been

scanned from a paper version into a digital format” (i.e., a copy). 117 Stat. 650,

677. Most importantly, Congress believed the amendments were necessary to

prevent the “de facto legalization of the possession, receipt, and distribution of

child pornography for all except the original producers of the material.” 117 Stat.

650, 678. These findings highlight that Congress intended § 2252A, like § 2252,

to encompass the possession, receipt, and distribution of digitized copies of

original images because of the harmful effects of the content.

      Under the Government’s interpretation of the term visual depiction, § 2252,

§ 2252A, and § 2256(8) are wholly logical and criminalize all the conduct

Congress clearly intended to criminalize. The same is not true under the

Defendants’ interpretation. Thus, we construe the term visual depiction to mean

the substantive content of an image depicting a minor engaging in sexually

explicit conduct.

      Our conclusion is bolstered by the consequence that some statutory

provisions lose their commonsense meaning under Defendants’ approach. For

example, the crimes enumerated in § 2252(a) focus on visual depictions involving

a minor engaging in sexually explicit conduct if the “visual depiction is of such

conduct.” 18 U.S.C. § 2252(a)(1)(B), (2)(B), (3)(B)(ii), (4)(B)(ii) (emphasis

added). Only the substance of an image can be “of such conduct.” Likewise, 18

                                         -20-
U.S.C. § 2252A(a)(3), which criminalizes, inter alia, the distribution of

“materials” that contain “an obscene visual depiction of a minor engaging in

sexually explicit conduct,” makes little sense unless the term visual depiction

means the substantive content of the image. The flaw in Defendants’ position is

further illuminated by examining similar language in 18 U.S.C. § 2252(a)(4)(B).

Dayton was convicted of violating this statute, which criminalizes the possession

of “1 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.” 18 U.S.C. § 2252(a)(4)(B)

(emphasis added). If, as Defendants argue, the term visual depiction means the

specific iteration of the image rather than its substance, the use of the phrase

“matter which contain any visual depiction” in § 2252(a)(4)(B) is unnecessary

and redundant because Defendants’ definition effectively rewrites the statute to

say, “matter which contains any matter.”

      Section 2252(a)(4)(B) also clearly states it is the visual depiction, not the

particular form of the visual depiction, that must travel in interstate or foreign

commerce. Defendants attempt to rewrite the statute to criminalize the possession

of any matter containing a visual depiction if that matter has been mailed,

shipped, or transported in interstate commerce. But that is not what the statute

says. It expressly criminalizes the possession of any “visual depiction that has

been mailed, or has been shipped or transported in interstate or foreign

                                         -21-
commerce.” Id. (emphasis added). And, as we have already concluded,

Congress intended visual depiction to mean substantive content.

      Defendants argue our interpretation of the statute is misadvised because it

would effectively eliminate the affirmative defense contained in 18 U.S.C.

§ 2252(c).” 8 That defense may be invoked by defendants charged with violating

18 U.S.C. § 2252(a)(4) who

      (1) possessed less than three matters containing any visual depiction
      proscribed by [18 U.S.C. § 2252(a)(4)]; and

      (2) promptly and in good faith, and without retaining or allowing any
      person, other than a law enforcement agency, to access any visual
      depiction or copy thereof—

            (A) took reasonable steps to destroy each such visual depiction; or

            (B) reported the matter to a law enforcement agency and afforded
            that agency access to each such visual depiction.

18 U.S.C. § 2252(c). Defendants argue this defense would not be available to

“low-level possessors” because they do not have access to the original and all

copies of the visual depiction and, thus, would be unable to destroy them or

provide law enforcement with access to them as required by the statute.

Defendants’ argument, however, is an overstatement because the statute only

requires a defendant to take “reasonable steps” to destroy the visual depictions.

Further, the term visual depiction is modified by the word “such,” which is a


      8
       There is an identical affirmative defense available to defendants charged
with violating 18 U.S.C. § 2252A(2)(5). 18 U.S.C. § 2252A(d).

                                        -22-
reference to the visual depictions possessed by the defendant. Thus, a defendant

would qualify for the affirmative defense if he reasonably attempts to destroy the

one or two visual depictions he is alleged to possess. Our interpretation of the

statute, therefore, is consistent with the affirmative defense.

IV.   Conclusion

      After examining the statute as a whole with reference to the legislative

history, we conclude the term visual depiction means the substantive content of

an image depicting a minor engaging in sexually explicit conduct rather than the

specific medium or transmission used to view, store, receive, or distribute that

content. A visual depiction is created once—when the child sexual abuse is

captured on some type of media; it is not created anew each time that substantive

content is transferred to a different storage device or transmitted over the Internet.

All copies of the same substantive content are the same visual depiction. Thus, a

visual depiction can be contained both in the particular tangible or digital media

possessed, received, or distributed by a defendant and also in any other form or

copy of the image, including the original. Further, under the plain language of

the statute, the Government is only required to prove that the visual depiction

“has been” mailed, shipped, or transported in interstate or foreign commerce at

any point in time. 18 U.S.C. § 2252(a)(2)(B), (a)(4)(B); 18 U.S.C.

§ 2252A(a)(2)(B), (a)(5)(B). Any prior decisions of this court inconsistent with

this holding are hereby overruled.

                                         -23-
      One way the Government can meet its burden of proving the jurisdictional

element is by introducing evidence from which a reasonable jury could conclude

the substance of an image of child pornography was made in a state and/or

country other than the one in which the defendant resides. Defendant Sturm

conceded this point, see supra n.4, and the Government presented sufficient

evidence to prove it during Dayton’s trial. We therefore remand these matters to

the original panels for further consideration of Defendants’ appeals in light of our

holding.




                                        -24-
09-1386, United States v. Sturm; 09-5022, United States v. Dayton

HOLMES, Circuit Judge, dissenting, joined by HOLLOWAY, Circuit Judge.

      I respectfully dissent. The majority concludes that the term “visual

depiction” in 18 U.S.C. §§ 2252, 2252A (2006) refers to the “substantive content”

of an image of child pornography. See Maj. Op. at 2–3. I disagree. Under the

versions of the statutes applicable here, in my view, the term “visual depiction”

refers to a particular item containing an image of child pornography that is

received or possessed by a defendant. I agree with the majority that the

challenges of the two defendants, Christopher Dayton and Kenneth Sturm,

“implicate the Government’s burden of proving the interstate commerce element

of the crimes charged.” Maj. Op. at 14. I also agree that proof of that element in

part “hinges on the meaning of the term ‘visual depiction’” in §§ 2252 and

2252A. Id. at 15. Based on my reading of the statutes, and more specifically the

term “visual depiction,” however, I conclude that the government has not carried

its burden of proof regarding the interstate-commerce element. Accordingly, I

would reverse the convictions of Messrs. Dayton and Sturm.

                                         I.

                                        A.

      The majority’s interpretation of the term “visual depiction” cannot

withstand serious scrutiny. The majority holds that “visual depiction” means “the

substantive content of an image” and not the particular instantiation of an image

received, possessed, or distributed by a defendant. Id. at 20. In other words, the
majority conceives of a “visual depiction” as an intangible “substance,” the

incorporeal “portrayal” of a scene. See id. at 14. But throughout its opinion, the

majority cannot help but sneak concepts of physicality and tangibility into its

definition.

                                         1.

      For example, as the majority rightly notes, see id. at 21, the statutes require

a “visual depiction” to be “mailed,” “shipped,” or “transported” in interstate

commerce. 18 U.S.C. §§ 2252(a)(2), 2252A(a)(2)(B) (2006). They also require a

defendant to “receive[],” “possess[],” or “distribute[]” a “visual depiction.” See

18 U.S.C. §§ 2252(a)(2), 2252A(a)(2)–(4) (2006). Manifestly, these kinetic

concepts—mailing, shipping, transporting, receiving, possessing, and

distributing—require some kind of tangible object. In English, we do not speak

of transporting an incorporeal “substance” across state lines. When one brings a

copy of the U.S. Code from Oklahoma to Colorado, one does not transport “the

law.” When a Kansas suitor sends a Valentine’s Day card to his Utah sweetheart,

we do not say that he mailed his “undying love” in interstate commerce. In the

same way, if §§ 2252 and 2252A require a “visual depiction” to be “transported,”

“possess[ed],” etc. by a defendant, then “visual depiction” must refer to a tangible

something rather than to some ethereal “content.”

      The majority finds support for its reading in 18 U.S.C. § 2252(a)(1)(B)

(2006), which requires that a “visual depiction” be “of such conduct” (emphasis

                                        -2-
added)—that is, of sexually explicit conduct by a minor. See also 18 U.S.C.

§§ 2252(a)(2)(B), (3)(B)(ii), (4)(B)(ii) (2006) (identical phrasing). Says the

majority, “Only the substance of an image can be ‘of such conduct.’” Maj. Op. at

20. I could not disagree more. Indeed, the majority has it precisely backwards.

It is the conduct portrayed in an image that is its offensive substance. A visual

depiction “of” such conduct refers to a particular instantiation of that substantive

content—viz., a particular image portraying that conduct.

      An easy example defeats the majority’s strained interpretation. Imagine

two identical photographs of the Eiffel Tower, one an original and the other a

copy. Each would be described as a photo or “visual depiction” of the Eiffel

Tower. What is the substantive content here? Obviously, the Eiffel Tower—the

subject of the photo, not the photo itself. Each of the photos is a separate and

distinct “visual depiction” of the same substantive content. And of course, if I

were to say that I had “mailed” or “transported” one of these visual depictions in

interstate commerce, everyone (except perhaps the majority) would understand

that to mean that I had mailed or transported a particular photo. No one would

say, for example, that I had mailed “the Eiffel Tower.”

                                          2.




                                         -3-
      Nowhere is the tangible character of a “visual depiction” more on display

than in the affirmative defense set forth in 18 U.S.C. § 2252(c) (2006), 1 which is

available to a defendant if he can show that he:

      (1) possessed less than three matters containing any visual depiction
      proscribed by [18 U.S.C. § 2252(a)(4) (2006)]; and

      (2) promptly and in good faith, and without retaining or allowing any
      person, other than a law enforcement agency, to access any visual depiction
      or copy thereof—

             (A) took reasonable steps to destroy each such visual depiction; or

             (B) reported the matter to a law enforcement agency and afforded
             that agency access to each such visual depiction.

      If it is true, as the majority posits, that “visual depiction” means

“substantive content of [an] image,” Maj. Op. at 21, I am at a loss to understand

how the low-level possessor of child pornography, for whom this defense was

intended, could take advantage of it. How is such a defendant to “destroy” the

“substantive content” of a pornographic image? It would not be enough to

destroy his particular images because the “substantive content” would live on in

the (likely) thousands of identical images possessed by others. And the majority

cannot seriously contend (although, unfortunately, it attempts to do so, see id. at

22–23) that destruction of one particular image out of possibly thousands




      1
            A substantially identical affirmative defense appears in 18 U.S.C.
§ 2252A(d) (2006).

                                         -4-
constitutes “reasonable steps” toward the eradication of the content of that image.



      The majority explains away this anomaly by noting that “the term visual

depiction is modified by the word ‘such,’ which is a reference to the visual

depictions possessed by the defendant.” Id. at 22–23. Well, of course that is

true. The affirmative defense is most definitely concerned with the “visual

depictions possessed by the defendant.” Id. How else could he destroy, or take

reasonable steps to destroy, those visual depictions?

      The majority misses the point, though. The operative word here is not

“such,” which does little more than refer back to the same “visual depiction”

previously referenced in the section. See Webster’s Third New International

Dictionary 2283 (1981) (defining “such” to mean “having a quality already or just

specified—used to avoid repetition of a descriptive term”). Rather, the operative

word is “each.” The word “each” denotes a particular thing. See id. at 713

(defining “each” to mean “being one of two or more distinct individuals”

(emphasis added)). The majority does not explain how “each” can possibly

modify a word denoting only a nebulous “substance.” Under the majority’s

reading, a defendant is required to “destroy each such [substantive content of an

image].” See 18 U.S.C. § 2252(c)(2)(A) (2006). “[E]ach . . . content”? I

daresay, that adjective and noun combination has yet to be uttered in our mother

tongue. It is no less anomalous than “each pornography.”

                                        -5-
      Naturally, the majority recognizes this difficulty, so it equivocates. In

explaining how its interpretation squares with the language of the affirmative-

defense section, it shifts to employing the term “visual depiction” the way that I

do (and the way that I believe Congress intended)—as a particular tangible item.

Thus, the majority makes reference to “the visual depictions possessed by the

defendant” and “the one or two visual depictions [the defendant] is alleged to

possess.” Maj. Op. at 23.

      By vacillating between “visual depiction” as incorporeal substance and

“visual depiction” as a particular tangible, possess-able thing, the majority is

trying to have its cake and eat it too. We are obliged not to interpret statutes that

way. See Sullivan v. Stroop, 496 U.S. 478, 484 (1990) (“[It is a] normal rule of

statutory construction that identical words used in different parts of the same act

are intended to have the same meaning.” (quoting Sorenson v. Sec’y of Treasury,

475 U.S. 851, 860 (1986)) (internal quotation marks omitted)).

                                          B.

      There is an additional reason that the majority’s interpretation of the term

“visual depiction” simply cannot be right. By allowing the jurisdictional nexus of

§ 2252(a)(2) or § 2252A(a)(2)(B) to be satisfied with a showing that the

“substantive content” of an image crossed state lines “in some form at some point

in time,” Maj. Op. at 14, the majority expands the statute’s compass to the full




                                          -6-
extent of Congress’s Commerce Clause authority. The problem? Congress

clearly did not flex all of its Commerce Clause muscle in this statute.

      When Congress intends to exercise the full breadth of its power under the

Commerce Clause, it uses particular language to do so. As the Supreme Court has

said, “Congress is aware of the distinction between legislation limited to activities

‘in commerce’ and an assertion of its full Commerce Clause power so as to cover

all activity substantially affecting interstate commerce.” Russell v. United States,

471 U.S. 858, 859 n.4 (1985) (quoting United States v. Am. Bldg. Maint. Indus.,

422 U.S. 271, 280 (1975)) (some internal quotation marks omitted). Thus, the

Court has construed the statutory phrase “engaged in commerce” as “a term of art,

indicating a limited assertion of federal jurisdiction.” Am. Bldg., 422 U.S. at 280.

And it has instructed us that the phrase “used in commerce” “is most sensibly

read to mean active employment for commercial purposes, and not merely a

passive, passing, or past connection to commerce.” Jones v. United States, 529

U.S. 848, 855 (2000) (emphasis added).

      By contrast, when the phrase “affecting commerce” appears in a federal

statute, it “indicates Congress’[s] intent to regulate to the outer limits of its

authority under the Commerce Clause.” Circuit City Stores, Inc. v. Adams, 532

U.S. 105, 115 (2001); see also Allied-Bruce Terminix Cos. v. Dobson, 513 U.S.

265, 273–74 (1995) (holding that the phrase “involving commerce” is functionally

equivalent to “affecting commerce” and signals Congress’s intent to regulate to

                                           -7-
the full extent of its Commerce Clause power). These principles are well-

ingrained. When we ignore them, we impose “[a] variable standard for

interpreting common, jurisdictional phrases,” bring “instability to statutory

interpretation,” and send conflicting signals to Congress. Circuit City, 532 U.S.

at 117.

      The provisions of §§ 2252 and 2252A in force at the time of the

defendants’ convictions employ the phrase “in interstate . . . commerce.” For

example, § 2252(a)(2) criminalizes the knowing receipt or distribution of “any

visual depiction that has been mailed, or has been shipped or transported in

interstate or foreign commerce.” 18 U.S.C. § 2252(a)(2) (2006). Similarly, §

2252A(a)(5) criminalizes the knowing possession of material “that contains an

image of child pornography that has been mailed, or shipped or transported in

interstate or foreign commerce.” 18 U.S.C. § 2252A(a)(5)(B) (2006). Because

the statutes use the phrase “in . . . commerce,” we are bound to construe them as

“limited assertion[s] of federal jurisdiction.” Am. Bldg., 422 U.S. at 280.

      By way of contrast, §§ 2252 and 2252A have since been amended by the

Effective Child Pornography Prosecution Act of 2007, Pub. L. No. 110–358, 122

Stat. 4001 (2008). Section 2252(a)(2) now criminalizes the knowing receipt or

distribution of “any visual depiction using any means or facility of interstate or

foreign commerce or that has been mailed, or has been shipped or transported in

or affecting interstate or foreign commerce.” 18 U.S.C. § 2252(a)(2) (Supp. III

                                         -8-
2009) (emphases added). And § 2252A(a)(5) now criminalizes the knowing

possession of material “that contains an image of child pornography that has been

mailed, or shipped or transported using any means or facility of interstate or

foreign commerce or in or affecting interstate or foreign commerce.” Id.

§ 2252A(a)(5)(B) (emphases added). Under firmly established interpretive

principles, these phrases—and particularly the phrase “affecting . . .

commerce”—signal “Congress’[s] intent to regulate to the outer limits of its

authority under the Commerce Clause.” Circuit City, 532 U.S. at 115; accord

United States v. Wright, 625 F.3d 583, 600 (9th Cir. 2010) (“Congress chose to

regulate to the outer limits of its Commerce Clause authority by inserting the

‘affecting interstate commerce’ language [into §§ 2252 and 2252A].”); United

States v. Lewis, 554 F.3d 208, 216 (1st Cir. 2009) (“Congress . . . amended the

child pornography statutes . . . to expand the jurisdictional coverage. It did so by

replacing all instances of ‘in interstate’ with ‘in or affecting interstate’

commerce.”).

      If the previous versions of §§ 2252 and 2252A (the versions applicable

here) have a more restrictive jurisdictional reach than the newly amended versions

under our well-settled understanding of the statutory terms used therein, it follows

that any interpretation that pushes the previous versions to the outer reaches of

the Commerce Clause power must necessarily be wrong. The majority’s

interpretation of the statutes does just that. Despite the drastic and

                                           -9-
jurisdictionally significant differences in language between the earlier and later

versions of the statutes, the majority’s construction renders them identical.

      The majority does not take a front-door approach in effecting this judicial

alchemy. That is, it does not purport to expand the scope of the phrase “in

interstate . . . commerce” to cover any activity connected in some fashion to

interstate commerce. Such an endeavor would not be tenable, and the majority

wisely does not attempt it. See Jones, 529 U.S. at 855 (stating that the phrase

“used in commerce” “is most sensibly read to mean active employment for

commercial purposes, and not merely a passive, passing, or past connection to

commerce”); Wright, 625 F.3d at 592 n.7 (“Congress settled on the ‘in interstate

commerce’ language [in the previous version of § 2252A] precisely because of its

limited reach.”).

      Rather, the majority’s expansion of federal jurisdiction comes in through

the back door, via its rendering of the term “visual depiction.” By allowing that

term to encompass the “substance” of an image and by allowing the jurisdictional

nexus to be satisfied by a showing that the “substance”—though not the particular

image possessed by a defendant—crossed state lines “at some point in time,” Maj.

Op. at 14, the majority effectively transforms the statute’s “in commerce”

requirement into an “in or affecting commerce” requirement. Thus, even if a

defendant acquires his particular image through a purely intrastate transaction,

the fact that some prior iteration of the image traveled in interstate commerce (in

                                        -10-
a past transaction having no connection to the defendant) will render him subject

to federal prosecution. I find this impossible to square with the Supreme Court’s

admonition that a “past connection to commerce” is insufficient to satisfy an “in

commerce” jurisdictional requirement. See Jones, 529 U.S. at 855; see also

Wright, 625 F.3d at 594–96 (noting that “criminal statutes punishing the

transmission of the relevant material ‘in interstate or foreign commerce’ require

the material itself to cross state lines,” and “reject[ing] the government’s view

that [a defendant’s] entirely intrastate acts satisfy the statute’s interstate

commerce requirement solely because of prior interstate activity” (emphases

added)).

      The majority confronts neither the applicable statutes’ requirement that a

visual depiction be transported “in interstate . . . commerce,” 18 U.S.C.

§§ 2252(a)(2), 2252A(a)(5)(B) (2006), nor the fact that this language has since

been amended—and expanded—to read “in or affecting interstate . . . commerce,”

18 U.S.C. §§ 2252(a)(2), 2252A(a)(5)(B) (Supp. III 2009) (emphasis added); see

Wright, 625 F.3d at 600 (holding that the amendments “effected a substantial

change in section 2252A(a)(1)”); Lewis, 554 F.3d at 216 (holding that the

amendments “expand[ed] the jurisdictional coverage”).

      Indeed, the majority’s construction of the jurisdictional-nexus requirement

makes the subsequent amendment superfluous. If the majority’s interpretation is

right, Congress would have found no need to expand federal jurisdiction. There

                                          -11-
is good reason, therefore, to reject the majority’s reading of the statutes. See

Milner v. Dep’t of Navy, 131 S. Ct. 1259, 1268 (2011) (declining to entertain an

interpretation that would render a statutory provision superfluous and thus make

irrelevant the subsequent amendment of that provision); see also TRW Inc. v.

Andrews, 534 U.S. 19, 31 (2001) (“It is ‘a cardinal principle of statutory

construction’ that ‘a statute ought, upon the whole, to be so construed that, if it

can be prevented, no clause, sentence, or word shall be superfluous, void, or

insignificant.’” (quoting Duncan v. Walker, 533 U.S. 167, 174 (2001))).

                                           C.

      The majority’s rejection of the defendants’ argument rests on a false

premise. The defendants argue, and I agree, that the particular thing received,

possessed, or distributed by a defendant, be it a digital file or a tangible

photograph, must have crossed state lines. 2 The majority castigates this approach,

saying that it “would not extend to conduct involving the receipt or distribution of

any image other than the original image.” Maj. Op. 16. Thus, the majority

reasons, under the defendants’ and my reading, the statutes do not reach copies of




      2
            As suggested supra, this is a consequence, I believe, of the statutes’
requirement that a visual depiction be “transported in interstate or foreign
commerce,” 18 U.S.C. §§ 2252(a)(2), 2252A(a)(2)(B) (2006) (emphasis added),
as opposed, for example, to “in or affecting interstate or foreign commerce.”
Compare Circuit City, 532 U.S. at 115–16, with Russell, 471 U.S. at 859.

                                          -12-
an original image “[e]ven though the substantive content of [the] copy would be

identical to that of the original.” Id.

      Respectfully, the majority is operating under a misconception. No one has

ever suggested that the statutes’ reach is limited to first-generation images and

does not extend to copies thereof. Nor is that the practical effect of my

interpretation of the statutes in question. Sections 2252 and 2252A most certainly

do cover copies, provided that a particular copy crossed state lines to reach the

defendant.

      This may be easily illustrated. Imagine that D in North Dakota takes a

photo of a minor engaged in sexually explicit conduct using a Polaroid instant

camera. He mails that photo (the original) to U in Utah. U wants to keep the

original and send a copy to friend, so he creates a copy using a Xerox machine.

He mails the copy to M in Maryland. M has received and is now in possession of

a visual depiction of a minor engaged in sexually explicit conduct, and the

particular visual depiction he possesses—the copy he received from U—was

“transported in interstate . . . commerce.” 18 U.S.C. §§ 2252(a)(2),

2252A(a)(2)(B) (2006). M is subject to federal prosecution. (So also, for that

matter, are D and U.) 3 My reading of the statutes is therefore entirely consistent

      3
               In the digital context, the example is even more salient. Imagine that
D in North Dakota takes the photo using a digital camera, then transfers the
digital file to a shared-access folder on his laptop’s hard drive, making that file
                                                                         (continued...)

                                          -13-
with Congress’s intent, highlighted in the majority opinion, see Maj. Op. at

17–20, to reach not only the upstream creators of original pornographic images

but also the downstream disseminators and consumers of copies.

                                         II.

      A couple of final remarks. First, I recognize both that child pornography is

despicable and that federal law can constitutionally—and now does

statutorily—reach most intrastate transfers of such images. That said, we are

called upon to interpret the laws as they are written, not as we would like them to

be. Thus, the argument that my interpretation of the statutes here “hamper[s] the

prosecution of child pornography cases in this circuit,” United States v. Dayton,

426 F. App’x 582, 606 n.9 (10th Cir. 2011) (Briscoe, J., dissenting), opinion

vacated by No. 09-1386, 2011 WL 6261657 (10th Cir. Apr. 4, 2011), seems to me

to be not only completely irrelevant but also misguided. Congress used specific

jurisdictional language in 18 U.S.C. §§ 2252, 2252A (2006) that signals to

me—though not apparently to my colleagues in the majority—that the statutes do

      3
       (...continued)
available for download by others. U in Utah downloads the file to his computer.
Of course, the actual file on D’s laptop is not transferred. Rather, D’s computer
sends a copy of the information contained in the file to U’s computer, and U’s
computer creates its own (identical) file out of that information. U has received
and is now in possession of a visual depiction of a minor engaged in sexually
explicit conduct, and the particular visual depiction he possesses—the file created
from information he received from D—was “transported in interstate . . .
commerce.” 18 U.S.C. §§ 2252(a)(2), 2252A(a)(2)(B) (2006). U is subject to
federal prosecution. (So, too, is D.)

                                        -14-
not reach as far as they are constitutionally able. If there is any “hampering”

here, it is Congress’s doing—and, I would add, its intentional doing. See Wright,

625 F.3d at 600 (“The legislative history makes clear that Congress settled on the

‘in interstate commerce’ language because of its limited scope and squarely

rejected an earlier proposed bill that would have reached conduct ‘affecting

interstate commerce.’ By contrast, in 2007 Congress chose to regulate to the

outer limits of its Commerce Clause authority by inserting the ‘affecting interstate

commerce’ language.”).

      The majority’s holding today serves to federalize an area of criminal

prosecution that the applicable statutes deliberately left to the States. See id. at

592 n.7. Perhaps one might reasonably suggest that this a “just” result. However,

the ends of justice cannot excuse our transgressing the rule of law.

      Second, whatever one thinks of the majority opinion, it cannot seriously be

maintained that it is not a sea change in the law governing federal child-

pornography prosecutions. Allowing the government to satisfy the jurisdictional

nexus in 18 U.S.C. §§ 2252, 2252A (2006) by showing that the “substantive

content” of an image crossed state lines “in some form at some point in time,” see

Maj. Op. at 14, both washes away our prior precedent, see United States v.

Schaefer, 501 F.3d 1197 (10th Cir. 2007); United States v. Wilson, 182 F.3d 737

(10th Cir. 1999), and is unique among our sister circuits, cf. Wright, 625 F.3d



                                         -15-
583; Lewis, 554 F.3d 208. The defendants here could not have been on notice

that such a rule would apply to their cases and, consequently, had no opportunity

to defend against it. In fact, Mr. Sturm stipulated to the fact that the originals of

the images he possessed were produced out of state. See Maj. Op. at 12 n.4.

Under the majority’s new rule, Mr. Sturm effectively stipulated to the

jurisdictional nexus—an element of his conviction that he vigorously contested at

trial, before his appellate panel, and in this en banc proceeding. Little could Mr.

Sturm have known that his stipulation would be the death knell for his case. The

majority’s new rule, based on what I believe is an idiosyncratic and erroneous

reading of the term “visual depiction,” thus becomes a trap for the unwary in this

case. I cannot help but be reminded of “Caligula’s practice of printing the laws in

small print and placing them so high on a wall that the ordinary man did not

receive fair warning.” Huddleston v. United States, 415 U.S. 814, 834 n.* (1974)

(Douglas, J., dissenting).

      At the very least, the rule of lenity would counsel a narrower interpretation

of the term “visual depiction”—one that would not have the effect of altering “the

federal-state balance in the prosecution of crimes.” Cleveland v. United States,

531 U.S. 12, 25 (2000) (quoting Jones, 529 U.S. at 858) (internal quotation marks

omitted); see also United States v. Enmons, 410 U.S. 396, 411 (1973) (rejecting

an interpretation of the Hobbs Act that would work “an unprecedented incursion

into the criminal jurisdiction of the States”); Note, The New Rule of Lenity, 119

                                         -16-
Harv. L. Rev. 2420, 2430 (2006) (“When a broad interpretation of an ambiguous

criminal statute would expand the scope of federal criminal law into areas

traditionally left to the states, . . . the rule of lenity require[s] that the [c]ourt

adopt the narrower reading.”).

       For all of these reasons, I respectfully dissent.




                                            -17-
