PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 95-5579

JACQUES ROGER CEDELLE,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-95-40)

Argued: May 9, 1996

Decided: July 11, 1996

Before RUSSELL, ERVIN, and WILKINS, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Wilkins wrote the opinion, in
which Judge Russell and Judge Ervin joined.

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COUNSEL

ARGUED: John Joseph O'Donnell, Jr., Alexandria, Virginia, for
Appellant. Kathleen Marie Kahoe, Assistant United States Attorney,
Alexandria, Virginia, for Appellee. ON BRIEF: Helen F. Fahey,
United States Attorney, Alexandria, Virginia, for Appellee.

_________________________________________________________________
OPINION

WILKINS, Circuit Judge:

Jacques Roger Cedelle appeals his conviction of one count of
knowingly receiving visual depictions of a person under the age of 18
engaged in sexually explicit conduct. See 18 U.S.C.A. §§ 2252(a)(2),
2256(1) (West Supp. 1996). He principally argues that the district
court committed plain error by failing to instruct the jury that the
Government had the burden of proving that he knew that the visual
depictions he received portrayed minors engaged in sexually explicit
conduct. See United States v. X-Citement Video, Inc., 115 S. Ct. 464,
472 (1994). We affirm.

I.

As part of an ongoing investigation to identify individuals who
buy, sell, and trade materials depicting child pornography, undercover
postal inspectors placed an advertisement in an adult magazine offer-
ing "taboo" material for sale.1 Shortly thereafter, a letter was received
from Cedelle, who identified himself with the alias Roger Carlisle and
requested "any video VHS of young [g]irls." J.A. 160.2 After the
inspectors inquired by mail as to his specific interests, Cedelle stated
a desire to obtain "some video VHS of young girls about 11-15 [years
old] more or less in any type of sexual activities." J.A. 162. And, in
reply to a letter from the inspectors indicating the availability of mate-
rials involving minors, Cedelle asserted that he was"very interested[;]
12 [years old] or younger [was] nice" if it showed the minors engaged
in not merely fellatio but also copulation. J.A. 165. Finally, after a
third letter was sent by the undercover officers indicating that a video-
tape and some photographs that met his expressed interests were
available for $50.00, Cedelle ordered the materials, enclosing a
money order for the prescribed amount.
_________________________________________________________________
1 "Taboo" is a word commonly used to describe child pornography by
individuals interested in buying, selling, or trading such material. See
United States v. Moore, 916 F.2d 1131, 1137 (6th Cir. 1990).
2 Cedelle stipulated that the letters mailed to the undercover postal
inspectors and signed Roger Carlisle were, in fact, written by him.

                   2
Due to the nature of the pornographic materials, the inspectors
determined that a controlled delivery to the mailbox address given for
Roger Carlisle would be preferable in order to preclude possible fur-
ther distribution of the items. Consequently, they sealed the videotape
and pictures in an envelope addressed to Roger Carlisle, attached a
return address label and proper postage, and delivered the package to
the correct address. Thereafter, the inspectors maintained undercover
surveillance of the location, and within a short time, Cedelle arrived,
picked up the parcel, and drove away. The inspectors arrested him
after executing a traffic stop and, during a subsequent search of the
vehicle, recovered the package containing the pornographic materials.
Following the arrest, the officers searched Cedelle's residence pursu-
ant to a search warrant.

During trial, Cedelle stipulated that the videotape and photographs
contained in the package delivered to him depicted persons under the
age of 18 engaged in sexually explicit conduct in violation of 18
U.S.C.A. § 2252(a)(2). Importantly, he did not stipulate that at the
time he received the package, he knew that the materials depicted
minors. Following the presentation of the evidence, the district court
charged the jury in pertinent part:

          The first element is one that the defendant Jacques
          Cedelle knowingly received visual depictions and specifi-
          cally a videotape and photographs. That's the first element.

          The second element is that the visual depictions were
          received through the mail. Now, I have already actually
          resolved that one for you. As a matter of law in this case,
          I have ruled that whatever was received in that priority mail-
          ing had to be received through the mail.

          And, the third element has actually been resolved for you
          by the stipulation. The third element is that the visual depic-
          tions were produced using minors engaging in sexually
          explicit conduct, and that the visual depictions were of such
          conduct.

          ....

                    3
          So really what you only have to focus your attention on
          is the first element which again is that the defendant,
          Jacques Cedelle, knowingly received visual depictions, that
          is, a videotape and photographs.

J.A. 145-46. After setting forth the elements of the offense, the dis-
trict court instructed the jury:

          [T]he [G]overnment need only show that the defendant,
          Jacques Cedelle, was aware of the general nature and char-
          acter of the materials involved in these photographs and vid-
          eotapes. It is not required that the defendant actually know
          the material was illegal. That's not an element that the
          [G]overnment has to actually prove.

J.A. 147. At no time did Cedelle request that the district court specifi-
cally instruct the jury that the Government was required to prove that
he knew that the items he received in the package were visual depic-
tions of minors engaged in sexually explicit acts, nor did he object to
its failure to do so. At the close of its deliberations, the jury returned
a verdict of guilty.

II.

When a criminal appellant asserts an error that occurred during
proceedings before the district court, but that was forfeited through a
failure to timely object, we may notice such error only if it is a
"[p]lain error[ ] or defect[ ] affecting substantial rights." Fed. R. Crim.
P. 52(b); see United States v. Olano, 507 U.S. 725, 731-32 (1993). As
interpreted by the Supreme Court, Rule 52(b) contains three elements
that must be established before we possess the authority to notice an
error not preserved by a timely objection: The asserted defect in the
trial proceedings must, in fact, be error; the error must be plain; and,
it must affect the substantial rights of the defendant. Olano, 507 U.S.
at 732. But, because the correction of all such errors would eviscerate
the requirement that a defendant make a contemporaneous objection
to errors committed during trial, we must also evaluate the forfeited
error to determine whether we should exercise our discretion to notice
it even when the three predicate showings required by Rule 52(b) are
made. See id. at 735-37; see also United States v. Young, 470 U.S. 1,

                     4
15 (1985). To guide our determination of this ultimate question, the
Supreme Court has instructed that we should not notice a forfeited
error under Rule 52(b) unless a miscarriage of justice would result--
i.e., the defendant is actually innocent--or the error "`seriously affec-
t[s] the fairness, integrity or public reputation of judicial proceedings'
independent of the defendant's innocence." Olano, 507 U.S. at 736-37
(quoting United States v. Atkinson, 297 U.S. 157, 160 (1936)).

A.

The first showing required by Rule 52(b) is that an error must have
occurred in the proceedings below. In United States v. X-Citement
Video, Inc., 115 S. Ct. 464 (1994), the Supreme Court held that in
order to obtain a conviction under § 2252(a)(2), the Government is
required to prove not only that a defendant knowingly received, dis-
tributed, or reproduced for distribution a visual depiction, but also that
the defendant knew both that it portrayed a person under the age of
18 and that the minor was engaged in sexually explicit conduct. Id.
at 472. The district court below failed to properly instruct the jury that
the Government was required to prove that Cedelle knew that the
materials depicted a person under the age of 18 engaged in sexually
explicit conduct. Thus, without question, error within the meaning of
Rule 52(b) occurred.

B.

Second, it is necessary that the error that occurred during the trial
be plain. An error is plain, at least, when the error is clear both at the
time it occurred and at the time of appeal. See United States v. David,
83 F.3d 638, 642 (4th Cir. 1996). Because X-Citement Video, which
was decided on November 29, 1994, clarified the Government's bur-
den of proof under § 2252(a)(2) well before Cedelle's trial on April
5, 1995, the error in the instructions given to the jury was clear at the
time of trial and, obviously, remains so on appeal. We therefore con-
clude that the error in the jury instructions is plain for purposes of
Rule 52(b).

C.

Third, it must also be shown that the error affected Cedelle's sub-
stantial rights. As we recently recognized, "the failure to instruct on

                     5
an element of the crime, where the jury never made the constitution-
ally required findings, . . . satisfies Olano 's third prong." David, 83
F.3d at 647. By not giving proper instructions regarding the Govern-
ment's burden to prove that Cedelle knew that one of the persons
involved in the sexually explicit conduct was a minor, the district
court failed to submit all of the essential elements of § 2252(a)(2) to
the jury. See X-Citement Video, 115 S. Ct. at 472. Consequently, the
error affected Cedelle's substantial rights because it is unclear
whether the jury determined that Cedelle knew that the materials he
received involved depictions of minors engaged in sexually explicit
conduct. See David, 83 F.3d at 647.

D.

When the first three requirements of Rule 52(b) are established, we
must consider whether the circumstances present an appropriate occa-
sion for the exercise of our discretion to notice the error. See Olano,
507 U.S. at 735-36; David, 83 F.3d at 647-48 (declining to adopt per
se rule that error of failing to instruct the jury on an essential element
of the crime must be noticed as plain error).3 We make this determina-
tion not by viewing the error in isolation, but rather "by viewing [it]
against the entire record," recognizing that Rule 52(b) carefully bal-
ances the goal of encouraging defendants to seek an accurate and fair
trial in the first instance--a goal advanced by the contemporaneous-
objection rule--against a recognition that a true miscarriage of justice
or a defect calling into question the fairness, integrity, or public repu-
tation of the judiciary must not be allowed. Young, 470 U.S. at 15-16.
Accordingly, only if in the context of the proceedings taken as a
whole, the error either led to the conviction of a defendant who is
actually innocent or otherwise "`seriously affect[ed] the fairness,
_________________________________________________________________
3 Our decision in United States v. Rogers, 18 F.3d 265 (4th Cir. 1994),
is not to the contrary. Although Rogers could be read to hold that rever-
sal is required whenever a district court fails to instruct the jury on an
essential element of an offense, the Supreme Court plainly has instructed
that the determination of whether to exercise our discretion to notice
plain errors must be made on a case-by-case basis. Young, 470 U.S. at
16 n.14; see also David, 83 F.3d at 647-48. Thus, after considering the
circumstances presented, the Rogers court decided to exercise its discre-
tion to notice the error and reverse Rogers' conviction.

                     6
integrity or public reputation of judicial proceedings'" should we
exercise our discretion pursuant to Rule 52(b) to notice it. See Olano,
507 U.S. at 735-37 (quoting Atkinson, 297 U.S. at 160). Central to
this inquiry is a determination of whether, based on the record in its
entirety, the proceedings against the accused resulted in a fair and
reliable determination of guilt.4Cf. Strickland v. Washington, 466
U.S. 668, 687 (1984) ("[A] fair trial [is] a trial whose result is reli-
able."); Wade v. Hunter, 336 U.S. 684, 689 (1949) (recognizing "pub-
lic[ ] interest in fair trials designed to end in just judgments").

Based on these considerations, we decline to notice the error com-
mitted by the district court in failing to instruct the jury that the Gov-
ernment had the burden of proving that Cedelle knew that the
materials depicted persons under the age of 18 engaged in sexually
explicit conduct. A failure to correct the error will not result in a mis-
carriage of justice or seriously affect the fairness, integrity, or public
reputation of the judiciary because, viewing the record as a whole, the
proceedings resulted in a fair and reliable determination of Cedelle's
guilt. See United States v. Randazzo, 80 F.3d 623, 631-32 (1st Cir.
1996) (declining to reverse on the basis of an error in failing to
instruct the jury on an essential element of the offense because the
evidence of guilt was overwhelming); United States v. Jobe, 77 F.3d
1461, 1476 (5th Cir. 1996) (same and noting that the defendant did
not challenge the sufficiency of the evidence); United States v. Ross,
77 F.3d 1525, 1540-41 (7th Cir. 1996) (same). The letters Cedelle
mailed to the postal inspectors permit no other conclusion but that he
knew that the visual depictions portrayed persons under the age of 18
engaged in sexually explicit conduct. Indeed, Cedelle has never
argued that he did not, and he points to no evidence that could even
arguably support a conclusion that he did not. Cf. David, 83 F.3d at
648 (noticing plain error of the district court in failing to instruct on
an essential element of the crime because a jury conceivably could
have determined that the Government had not proven that element).
Consequently, even if the proper instruction had been given, Cedel-
_________________________________________________________________
4 We recognize that circumstances may exist where the proceedings
contain an error that seriously affects the fairness, integrity, or public
reputation of the judiciary even though the record demonstrates that the
defendant is guilty. See Olano, 507 U.S. at 736-37. That situation is not
presented here.

                    7
le's conviction was inevitable. Under these circumstances, to expend
the judicial resources necessary for a retrial would be more detrimen-
tal to the fairness, integrity, and public reputation of judicial proceed-
ings than permitting Cedelle's conviction to stand. See Ross, 77 F.3d
at 1540-41 (relying on significant waste of judicial resources that
would be engendered by retrial in declining to notice plain error).
Accordingly, we decline to exercise our discretion to notice the error
that occurred during the proceedings below.

III.

We have considered the other arguments Cedelle raised, including
his claim that the search of the home was improper because it lacked
probable cause and because it was based upon an anticipatory search
warrant, see United States v. Goodwin, 854 F.2d 33, 36 (4th Cir.
1988), all of which we determine are without merit. 5 We therefore
affirm Cedelle's conviction for violating § 2252(a)(2).

AFFIRMED
_________________________________________________________________
5 We observe that the district court also failed to permit the jury to con-
sider whether the package delivered to Cedelle at his mailbox during a
controlled delivery was received through the mail for purposes of
§ 2252(a)(2). See United States v. Gaudin , 115 S. Ct. 2310, 2313-14
(1995) (criminal convictions must rest upon a jury determination that the
defendant is guilty beyond a reasonable doubt of the essential elements
of the crime). But, because counsel for Cedelle expressly stated during
oral argument that this issue had been abandoned on appeal, we deem it
waived. See Olano, 507 U.S. at 733.

                     8
