     Case: 09-30487     Document: 00511066038          Page: 1    Date Filed: 03/30/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                           March 30, 2010

                                       No. 09-30487                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee
v.

JOHN P. NICHOLS,

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:08-CR-188-1


Before D EMOSS, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
        John P. Nichols pleaded guilty to one count of sexual exploitation of a child
pursuant to 18 U.S.C. § 2251(a). For the first time on appeal, Nichols challenges
the factual basis for his guilty plea. He argues that the Government failed to
show that transmitting a live video of sexually-explicit conduct over the Internet
produced a “visual depiction” within the meaning of the statute. We conclude
that the district court did not plainly err in accepting Nichols’s guilty plea and
AFFIRM.

        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                    I. Background
       The facts of this case are not in dispute. While engaged in an Internet
chat session with an anonymous couple, Nichols used a webcam to transmit over
the Internet images of a minor child’s genitals, as well as images of sexually-
explicit contact with the minor. As a result, Nichols was indicted for one count
of sexual exploitation of a child under 18 U.S.C. § 2251(a), as well as one count
of forfeiture under 18 U.S.C. § 2253.
       Prior to trial, Nichols confessed and agreed to plead guilty to the sexual
exploitation of a child charge. At the change of plea hearing, the Government
introduced the testimony of Agent Chris Cantrell to establish the factual basis
for Nichols’s guilty plea.1 Agent Cantrell testified that Nichols used a webcam
to transmit images over the Internet of the victim’s vaginal area and the image
of the victim touching Nichols’s penis. The Government did not introduce any
testimony or physical evidence that Nichols permanently recorded or otherwise
preserved the content of the webcam transmissions. The district court found
that a sufficient factual basis for the guilty plea existed in the record and
accepted Nichols’s guilty plea. The district court sentenced Nichols to 300
months of imprisonment and fifteen years of supervised release.
       Nichols now appeals, asserting that there was an insufficient factual basis
to show that he transmitted a “visual depiction” within the meaning of the
statute. The sole issue raised by Nichols is whether, at the time of his guilty
plea, § 2251(a) proscribed the transmission of live streaming video depicting
minors engaged in sexually-explicit conduct. Nichols asserts that because the
statute was amended in 2008 to specifically include the transmission of live
video depictions, the 2006 version of the statute could not have reached such
conduct.


       1
        Agent Cantrell’s testimony was based in part on his review of videotaped interviews
with the victim and the defendant.

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                             II. Standard of Review
      Before a district court may accept and enter judgment on a guilty plea, it
must determine that the plea is supported by a factual basis. F ED. R. C RIM. P.
11(b)(3). In doing so, the district court must “determine that the factual conduct
to which the defendant admits is sufficient as a matter of law to constitute a
violation of the statute.” United States v. Marek, 238 F.3d 310, 314 (5th Cir.
2001) (en banc). We have held that “[t]he factual basis cannot be implied from
the fact that the defendant entered a plea, but must appear on the face of the
record and ‘must be precise enough and sufficiently specific’ to demonstrate that
the accused committed the charged criminal offense.” United States v. Adams,
961 F.2d 505, 508 (5th Cir. 1992) (quoting United States v. Johnson, 546 F.2d
1225, 1226 (5th Cir. 1977) (per curiam)).
      Nichols did not challenge the factual basis for his guilty plea in the district
court; accordingly, we review for plain error. Marek, 238 F.3d at 315 (“We have
repeatedly held that when a defendant, for the first time on appeal, presents a
straightforward issue of law—here, whether the undisputed factual basis is
sufficient as a matter of law to sustain the guilty plea—we will review that issue
for plain error.”). Thus, Nichols must establish that: (1) an error was made; (2)
the error was clear or obvious; and (3) the error affects his substantial rights.
Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). Even if Nichols
demonstrates that all three elements are satisfied, we retain the discretion to
remedy the error and will only do so if Nichols can “show that the error has a
serious effect on the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008)
(quotation marks and citation omitted), cert. denied, 129 S. Ct. 962 (2009); see
also Puckett, 129 S. Ct. at 1429; United States v. London, 568 F.3d 553, 559 (5th
Cir. 2009), petition for cert. filed (U.S. Aug. 11, 2009) (No. 09-5844).



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      Thus, we first ask whether the district court erred in accepting Nichols’s
guilty plea. We determine whether error was committed by comparing each
element of the charged crime to the facts admitted by Nichols during the plea
colloquy. Marek, 238 F.3d at 315.
                                 III. Discussion
      At the time Nichols entered his guilty plea, § 2251(a) made any person
“who employs, uses, persuades, induces, entices, or coerces any minor to engage
in . . . any sexually explicit conduct for the purpose of producing any visual
depiction of such conduct” guilty of sexual exploitation of a child. 18 U.S.C.
§ 2251(a) (2006) (amended 2008). Section 2256(5) defined “visual depiction” to
“include[ ] undeveloped film and videotape, and data stored on computer disk or
by electronic means which is capable of conversion into a visual image.” 18
U.S.C. § 2256(5) (2006) (amended 2008). From this language Nichols infers that
§ 2251(a), which incorporates the definition of visual depiction contained in
§ 2256(5), applied, at the time of his conviction, only to permanently stored data.
We disagree.
      The definition of “visual depiction” set forth in § 2256(5) is not an
exhaustive list of the types of visual depictions criminalized by § 2251(a).
Section 2251(a) explicitly covers “any visual depiction” of sexually-explicit
conduct. The use of the word “any” before the phrase “visual depiction” in
§ 2251(a) evidences Congress’s intent to broadly criminalize the dissemination
of any visual image of child pornography, regardless of the means by which it
was generated. See, e.g., Massachusetts v. EPA, 549 U.S. 49, 528-29 (2007)
(observing that Congress’s repeated use of the word “any” underscores an intent
to embrace all types of a particular matter); see also Dep’t of Hous. & Urban Dev.
v. Rucker, 535 U.S. 125, 131 (2002) (“As we have explained, the word ‘any’ has
an expansive meaning, that is, one or some indiscriminately of whatever kind.”
(internal quotation marks and citation omitted)). Indeed, Nichols concedes in

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his reply brief that Congress did not intend for the examples of visual depictions
in § 2256(5) to be exhaustive. The plain meaning of “visual depiction” clearly
encompasses a video that could be viewed—perceived visually—by someone
remotely.
      Instead, Nichols argues that because the statute was subsequently
amended in 2008 to expressly criminalize the transmission of live visual
depictions of sexually-explicit conduct, such conduct could not have been covered
by the 2006 statute. We find this argument similarly misguided.
      In 2008, Congress amended § 2251(a) to cover “any sexually explicit
conduct for the purpose of producing any visual depiction of such conduct or for
the purpose of transmitting a live visual depiction of such conduct . . .” Protect
Our Children Act of 2008, Pub. L. No. 110-401, § 301, 122 Stat. 4229, 4242
(emphasis added). Congress also amended § 2256(5), which defines “visual
depiction” to include “undeveloped film and videotape, data stored on computer
disk or by electronic means which is capable of conversion into a visual image
that has been transmitted by any means, whether or not stored in a permanent
format.” Protect Our Children Act of 2008, § 302, 122 Stat. at 4242 (emphasis
added).
      Nichols asserts that Congress was not merely clarifying the scope of
§ 2251(a) by amending the statute to include the act of transmitting a live visual
depiction, but creating a wholly new type of crime distinct from the act of
producing a visual depiction.    But no principled distinction exists between
“producing” a visual image and “transmitting” data capable of being converted
into a visual image. Section 2256(3) of the statute states that “‘producing’ means
producing, directing, manufacturing, issuing, publishing, or advertising.” Both
before and after the 2008 amendment, § 2256(5) defined “visual depiction” to
include “data stored . . . by electronic means which is capable of conversion into
a visual image.” Thus, the transmission of live video feed that causes a visual

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image to appear on a remote computer screen is a means of producing a visual
depiction.    See United States v. Smith, 795 F.2d 841, 846 (9th Cir. 1986)
(“Section 2251(a) does not require the actual production of a visual depiction,
merely the enticement of minors ‘for the purpose of producing’ a visual depiction
of sexually explicit conduct.        Whether the film involved here had actually
reached the point of ‘visual depiction’ or not, Smith’s use of the girls was clearly
‘for the purpose of producing’ such visual depictions.”).
       The fact that Congress later amended the statute to clarify that live video
transmissions are prohibited by § 2251(a) does not mean that the statute did not
cover such transmissions at the time of Nichols’s offense. See United States v.
Alpers, 338 U.S. 680, 681-84 (1950) (rejecting the defendant’s argument that a
subsequent amendment to include motion pictures within the reach of an
obscenity statute “evidenced an intent that obscene matter not specifically added
was without the prohibition of the statute” and concluding that the amendment
more likely indicated that Congress wanted to make “doubly sure that motion-
picture film was within the Act, and was concerned with nothing more or less”);
see also United States v. Hockings, 129 F.3d 1069, 1072 (9th Cir. 1997)
(“Congress may amend a statute simply to clarify existing law, to correct a
misinterpretation, or to overrule wrongly decided cases. Thus, an amendment
to a statute does not necessarily indicate that the unamended statute means the
opposite.” (quotation marks and citation omitted)).2




       2
          The Alpers court explicitly rejected the defendant’s reliance on the rule of ejusdem
generis because the application of the rule would defeat the “obvious purpose” of the
legislation: “to prevent the channels of interstate commerce from being used to disseminate
any matter that, in its essential nature, communicates obscene, lewd, lascivious or filthy
ideas.” 338 U.S. at 683. Nichols’s cursory invocation of the rule of esjudem generis in the
present action fails for the same reason. Section 2251(a) was also intended to be part of “a
comprehensive statute, which should not be constricted by a mechanical rule of construction.”
Id. at 684.

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      Because we find no statutory ambiguity in the meaning of the phrase “any
visual depiction,” we need not address Nichols’ “rule of lenity” argument. See
Muscarello v. United States, 524 U.S. 125, 138-39 (1998) (noting that the rule of
lenity applies only if there is “grievous ambiguity or uncertainty in the statute”
(quotation marks and citations omitted)).
      Even if we harbored some doubt on this matter, we observe that no other
court had construed § 2251(a) to exclude live transmissions of video feed at the
time the district court accepted Nichols’s guilty plea. While this fact alone does
not preclude a finding of plain error, United States v. Spruill, 292 F.3d 207, 215
n.10 (5th Cir. 2002), we decline to find plain error where, “even now after full
briefing . . . the error is not plain or obvious, indeed it is most uncertain whether
there was any error at all.” United States v. Ellis, 564 F.3d 370, 377 (5th Cir.),
cert. denied, 130 S. Ct. 371 (2009).
                                  IV. Conclusion
      For the foregoing reasons, we hold that the district court did not
commit plain error in determining that a sufficient factual basis existed to
show that Nichols committed the crime of sexual exploitation of a child.
AFFIRMED.




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