                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           January 19, 2006
                                   TENTH CIRCUIT                          Elisabeth A. Shumaker
                                                                             Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                        No. 03-5113
                                                        (N. D. Oklahoma)
 LELAND DOYLE WOLLET,                             (D.Ct. Nos. 01-CV-540-H and
                                                          99-CR-158-H)
          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before O’BRIEN, HOLLOWAY, and TYMKOVICH, Circuit Judges.



      The events that bring this matter before us began when Leland Doyle

Wollet (“Wollet”) moved in with his son, Brian Wollet (“Brian”), in Bartlesville,

Oklahoma, in December 1998. At that time, Brian owned a computer and had an

account with America Online (AOL), an Internet service provider. Because Brian

had an AOL account, he could navigate the Internet with as many as seven

different identities or screen names. Father and son soon began to learn about the



      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
Internet and navigation techniques. During the early part of 1999, Wollet, using

Brian’s account, assumed the screen name “OKMI1.” In February 1999, because

of various service problems, Brian cancelled his first account and opened a new

AOL account which lasted until some time in March. When Brian created the

new account, Wollet assumed the new screen names “MIOK” and/or “MIOK52.”

      When exploring the Internet, Wollet gravitated to chat rooms dealing with

sex with young females, sex with family members and sex with animals. During

Wollet’s chat room visits, he stumbled on to users who repeatedly wrote “list me”

in their chat room conversations. Wollet soon discovered that “list me” was

Internet parlance chat room participants used to ask other participants to send

them images or data. Wollet followed suit and began using the “list me” option.

Consequently, he began receiving chat room-specific image files from other

participants; e.g., if he wrote “list me” in a chat room concerning sex with

children, he would receive pornographic images of children having sex.

      At some point, Brian discovered a bestiality image on his computer hard

drive and confronted his father. His father responded something to the effect that

“do you really think they check on this, do you really think they would know that

we have this?” (R. Vol. V at 19.) Brian later discovered a depiction involving

child pornography. Brian made clear to his father he did not want to see any more

such images on his computer. He told his father if he didn’t want to delete


                                         -2-
Internet material, he should save it to a disk. Some time after February, Brian

found disks stored in his father’s briefcase next to the computer. He formatted

the disks, believing he was erasing the material they contained.

      During the course of one chat room visits, Wollet initiated a sexually

explicit conversation with a person he believed to be a twelve-year-old girl, who

was actually an officer with a federal Northeast Regional Child Exploitation Task

Force. As the result of a grand jury subpoena to AOL, FBI Agents Keith Kohne

and Matthew Moosbrugger confronted Brian, the individual on the account,

concerning the identity of the OKMI1 screen name. Brian informed them the

screen name belonged to his father and discussed the pornographic images he had

observed earlier.

      The following day, the same FBI agents approached Wollet, informed him

of his Miranda rights and questioned him about the pornographic images

associated with his AOL screen name. Soon after the interview began, Wollet

brought the agents eighteen diskettes, admitting each had contained between six

and twenty-five image files. Wollet also described how he obtained the images

through chat rooms on AOL via the “list me” option and saved them to the

diskettes. Wollet stated he labeled the diskettes according to the chat room from

which he received the images. For example, the label “X” indicated that the disk

contained pornographic images, “FAM” was indicative of images containing


                                         -3-
family members having sex with one another, while “Y” indicated the images

involved children engaged in sexual activity. Agent Kohne turned the disks over

to Special Agent Joseph Cecchini who was able to retrieve many images thought

to have been erased by formatting the disk. 1

      On November 3, 1999, a grand jury indicted Wollet for one count of

possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). At trial

in April of 2000, Agent Kohne testified to participating in numerous child

exploitation cases and reviewing hundreds of child pornography images as part of

his law enforcement duties. After testifying that he could identify whether a

person was under age eighteen, he was asked by counsel to estimate the ages of

the children depicted in the images introduced at trial. Agent Kohne identified

and described over two dozen images of children engaged in sexually explicit

activity retrieved from Wollet’s diskettes. At the close of the government’s case,

the court denied Wollet’s motion for judgment of acquittal under Rule 29 of the

Federal Rules of Criminal Proceedure. On April 18, 2000, following a two-day

trial, the jury found Wollet guilty of possession of child pornography.

      On July 5, 2000, Wollet was sentenced to thirty months imprisonment and




      1
        Since no new files were saved to the disks after being formatted, the data was not
lost. Agents were able to retrieve the data files using commercially available software.

                                           -4-
three years supervised release. 2 During the sentencing hearing, Wollet was

advised by the court of his right to appeal. He, in turn, again asked his counsel if

he could appeal. Final judgment was entered on August 4, 2000. The day before

the notice of appeal was due, Wollet’s counsel asked him if he wanted to appeal,

although she again concluded there were no meritorious issues for appeal. Wollet

ultimately declined to appeal and, in fact, signed a waiver to that effect. 3

       On July 25, 2001, Wollet filed a motion to correct or vacate his sentence

pursuant to 28 U.S.C. § 2255. He later amended his motion to include a request

that the court take judicial notice of the Supreme Court’s decision in Ashcroft v.

Free Speech Coalition, 535 U.S. 234 (2002). On May 28, 2003, the district court

denied Wollet’s § 2255 motion and denied a certificate of appealibilty (COA)

pursuant to 28 U.S.C. § 2253(c).

       We granted a COA to review whether trial counsel was ineffective by

failing to: (1) argue, either in district court or on direct appeal, that the

government did not meet its burden of proof on the federal jurisdictional element

of the statute under which Wollet was charged and convicted; (2) argue, either in

district court or on direct appeal, that the statute under which Wollet was charged



       2
        Wollet completed his imprisonment term and is currently serving his term of
supervised release.
       3
        While the parties do not contest the existence of Wollett’s waiver of appeal, it
was not filed in the district court and has never been located.

                                            -5-
was unconstitutional; and (3) perfect a direct appeal, despite the presence of

several meritorious appellate claims and Wollett’s clear desire to appeal his

conviction and sentence. Reviewing Wollet’s ineffective assistance of counsel

claims de novo, Brewer v. Reynolds, 51 F.3d 1519, 1523 (10th Cir. 1995), we

affirm. 4

                                    DISCUSSION

       To prevail, Wollet must establish: (1) his trial counsel’s performance was

deficient; and (2) the deficient performance prejudiced him. See Strickland v.

Washington, 466 U.S. 668, 687 (1984). We “may address the performance and

prejudice components in any order, but need not address both if [the defendant]

fails to make a sufficient showing of one.” Cooks v. Ward, 165 F.3d 1283,

1292-93 (10th Cir. 1998). Here, we confine our analysis to the prejudice prong,

which requires Wollet to “show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694.

       (A) Jurisdictional Element

       Wollet claims his trial counsel was ineffective for failing to argue at trial or

on direct appeal that the Government did not satisfy the jurisdictional requirement



       To the extent Wollet attempts to expand our review beyond the scope of our
       4

COA, specifically to encompass counsel’s alleged lack of investigation and cross-
examination, we decline to do so. 28 U.S.C. § 2253(c)(1)(A).

                                           -6-
of 18 U.S.C. § 2252(a)(4)(B), which penalizes:

      (a) Any person who–

            (4)(B) knowingly possesses 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, 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 . . . .


(Emphasis added).

      Wollet contends that his case is very similar to the situation in United

States v. Wilson,182 F.3d 737 (10th Cir. 1999), and its progeny. See United

States v. Runyan, 290 F.3d 223, 240 (5th Cir. 2002); United States v. Henriques,

234 F.3d 263 (5th Cir. 2000). In Wilson, we held that circumstantial evidence

which linked a visual depiction on a computer diskette to interstate commerce

could not also be used to similarly link two other diskettes. Wilson, 182 F.3d at

744. Thus, we held that to establish the jurisdictional nexus under Section

2252(a)(4)(B), the government must independently show that each visual

depiction upon which a conviction is based had been transported in interstate or

foreign commerce—in this case, via the Internet. Id. Our holding in Wilson was


                                         -7-
aimed at limiting the government's ability to build its case on inferences, e.g., by

analogizing that since one image was downloaded from the Internet, other images

must also have been downloaded from the Internet.

      Here, however, the Wilson standard is altered in two important respects.

First, we are confronted with a different § 2252(a)(4)(B) than was considered in

Wilson. The government now only needs to prove that one rather than three

visual depictions traveled in interstate commerce, obviating to an extent concerns

that the Government could prove its case through inferences based on a link to

only one visual depiction. 18 U.S.C. § 2252(a)(4)(B). Second, in this case we

have detailed testimony confirming Wollett’s admission he received the images

over the Internet and copied them to the diskettes. Unlike in Wilson, where the

expert witness “offered no explanation . . . as to how those particular images

found their way to the diskettes in defendant’s possession,” here both Wollet’s

direct admissions and his son’s testimony established the pictures on those

diskettes were the same pictures received via the Internet. Although the official

AOL records only contained information from January 1999, Wollet’s admissions

and his son’s testimony confirmed Wollet’s computer use in February, when the

files were created. The evidence contains no inference that someone else gave

Wollet the diskettes, nor that the pornographic images traveled any alternative

path to his doorstep. The jury could rationally have concluded Wollet


                                          -8-
downloaded the images from the Internet to the diskettes and thus, the images (the

graphic files) traveled in interstate commerce. 5 See United States v. Bass, 411

F.3d 1198, 1202 (10th Cir. 2005); United States v. Kimler, 335 F.3d 1132, 1139

n.7 (10th Cir.) (geographical location of children depicted in images irrelevant;

defendant’s receipt of images over Internet established interstate commerce

element), cert. denied, 540 U.S. 1083 (2003); Wilson, 182 F.3d at 744, n.4. As a

result, the jurisdictional element was satisfied. Had Wollet’s attorney raised this

argument at trial or on appeal, the outcome of his case would not have been

different.

       (B) Unconstitutionality of statute

       Next, we consider Wollet’s claims that trial counsel was ineffective in

failing to argue at trial or on direct appeal that the statute under which Wollet was

charged was unconstitutional, for the same reasons the Supreme Court struck

down 18 U.S.C. §§ 2256(8)(B) and (8)(D) in Ashcroft v. Free Speech Coalition,

535 U.S. 234 (2002) (concerning the constitutionality of entirely virtual child



       5
          Wollet’s invocation of United States v. Henriques, 234 F.3d 263 (5th Cir. 2000),
is equally unavailing. While we do not argue with the applicable standard, the fifth
circuit was confronted with a situation far different from the one presented here. There,
the government premised its entire case on the notion that because pornographic images
were on the defendant’s hard drive, and that computer was connected to the Internet,
somebody had to use the Internet to put them there. Henriques, 234 F.3d at 266. The
fifth circuit held this was insufficient to prove the defendant was criminally responsible
for the images. Id. at 267.

                                            -9-
pornography). We find the argument wholly without merit.

      In Free Speech Coalition, the Supreme Court considered the

constitutionality of 18 U.S.C. § 2256(8)(B), and § 2256(8)(D). Section

2256(8)(B) prohibited "any visual depiction, including any photograph, film,

video, picture, or computer or computer-generated image or picture" that "is, or

appears to be, of a minor engaging in sexually explicit conduct." Free Speech

Coalition, 535 U.S. at 241, quoting 18 U.S.C. § 2256(8)(B). “The section

capture[d] a range of depictions, sometimes called ‘virtual child pornography,’

which include[d] computer-generated images, as well as images produced by more

traditional means.” Id. Section 2256(8)(D) defined child pornography as

including, inter alia, any sexually explicit image that was “‘advertised, promoted,

presented, described, or distributed in such a manner that conveys the impression’

it depicts ‘a minor engaging in sexually explicit conduct.’” Free Speech

Coalition, 535 U.S. at 242, quoting 18 U.S.C. § 2256(8)(D). The Court

determined that § 2256(8)(B) prohibited materials that neither met the obscenity

test under Miller v. California, 413 U.S. 15 (1973), nor qualified as child

pornography, “which may be banned without regard to whether it depicts works of

value,” under New York v. Ferber, 458 U.S. 747, 761 (1982). Free Speech

Coalition, 535 U.S. at 249. The Court further determined that Section

2256(8)(D)’s “conveys the impression” language could criminalize content that


                                         -10-
was not child pornography, but merely appeared to be, thus exceeding the limits

of Ginzburg v. United States, 383 U.S. 463 (1966) (allowing restrictions on the

commercial exploitation of erotica when done solely for the sake of prurient

appeal). Free Speech Coalition, 535 U.S. at 257-58. Consequently, the Court

concluded these provisions were overbroad and an unconstitutional abridgement

of speech.

      Wollet was charged with violating 18 U.S.C. § 2252(a)(4)(B). Although

the substantive provision pursuant to which Wollett was convicted, 18 U.S.C. §

2252(a)(4)(B), does refer to the definitions set forth in 18 U.S.C. § 2256, the two

specific phrases deemed unconstitutional in Free Speech Coalition were not

relevant to the issues at Wollet’s trial. The jury instructions clearly required the

jury to find beyond a reasonable doubt that Wollet “knowingly . . . possessed one

or more matters containing visual depictions . . . [that] involved the use of a

minor engaged in sexually explicit conduct; [t]hat such visual depictions were of

minors engaged in sexually explicit conduct; and . . . [Wollet] knew . . . that at

least one of the performers . . . was a minor engaged in sexually explicit

conduct.” (R. Vol. 1, Doc. 25 at 20.) Thus, there is no question the jury was

instructed to find that an actual minor, not an “apparent” or “virtual” child, was

the subject of the visual depictions Wollet possessed. The Supreme Court’s

ruling in Free Speech Coalition is inapplicable to a situation such as this, where


                                         -11-
the allegations and evidence concern the interstate dissemination of pornographic

images involving real children. 6 As a result, Wollet was not prejudiced by

counsel’s failure to raise this argument.

      (C) Failure to Appeal

      Last, we consider Wollet’s claim that trial counsel was ineffective for

failing to perfect a direct appeal, despite the presence of several appellate claims

and Wollet’s clear desire to appeal his conviction and sentence. We have long

observed that a defendant’s right to effective assistance of counsel applies not

just at trial but also on direct appeal. Abels v. Kaiser, 913 F.2d 821, 822 (10th

Cir. 1990); see also Evitts v. Lucey, 469 U.S. 387, 396 (1985) (“A first appeal as

of right . . . is not adjudicated in accord with due process of law if the appellant

does not have the effective assistance of an attorney.”). Moreover, we have held

where a defendant claims that his counsel was ineffective for failing to perfect an

appeal, he need only satisfy the first prong of the Strickland test—that counsel’s

performance fell below an objective standard of reasonableness. Abels, 913 F.2d

at 823. In reviewing such claims, we “do not consider the merits of arguments



      6
         It appears Wollet’s entire Free Speech Coalition argument hinges on the
government’s repeated use of the word “appear” in its examination of the FBI agents at
trial. The government’s inquiry was focused solely on the ages of children contained in
the depictions; its inquiry was not designed as an apocryphal way in which to examine
whether the children depicted were somehow virtual in nature, as Wollet would lead us to
believe.

                                          -12-
that the defendant might have made on appeal.” Id. Instead, “prejudice is

presumed.” Hannon v. Maschner, 845 F.2d 1553, 1558 (10th Cir. 1988).

      Undoubtedly, counsel must explain the advantages and disadvantages of an

appeal to his client. United States v. Garrett, 402 F.3d 1262, 1265 n.4 (10th Cir.

2005); Baker v. Kaiser, 929 F.2d 1495, 1499 (10th Cir. 1991). Wollet complains

his trial counsel admitted she did not advise him of the option of filing a brief

under the holding in Anders v. California, 386 U.S. 738 (1967). “However, if

counsel reasonably believes that there are no meritorious grounds for an appeal,

advises a defendant not to appeal on that basis, further advises him that he has a

right to appeal regardless, and then acts in accordance with defendant’s decision

to waive an appeal, [counsel’s] performance cannot be considered deficient.”

United States v. Lopez, 100 F.3d 113, 119 (10th Cir. 1996).

      Wollet’s own assertions reflect that every request he made to counsel to

review the case was answered with both a commitment to investigate as well as a

corresponding conclusion that there were no meritorious grounds for appeal.

Nonetheless, counsel inquired if Wollet wanted to file an appeal, but he declined.

He does not contend he instructed his attorney to appeal. He signed and filed a

waiver of appeal. Thus, despite his claimed heartfelt desire to appeal, we cannot

conclude his counsel’s performance was deficient.

                                  CONCLUSION


                                         -13-
For the foregoing reasons, the decision of the district court is AFFIRMED.



                               Entered by the Court:

                               Terrence L. O’Brien
                               United States Circuit Judge




                                -14-
