                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                             APR 7 2000
                    UNITED STATES COURT OF APPEALS

                                 TENTH CIRCUIT                         PATRICK FISHER
                                                                                 Clerk


 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 99-6317
          v.                                          (W.D. Oklahoma)
 ERVIN E. SCHATT,                                  (D.C. No. CR-99-23-C)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before EBEL, ANDERSON, and MURPHY, Circuit Judges.



      Ervin E. Schatt entered a conditional guilty plea to receiving child

pornography in violation of 18 U.S.C. § 2252(a)(2). He appeals the district

court’s denial of his motion to dismiss the indictment, arguing that the child

pornography he received had not been transported in interstate commerce as

required by § 2252(a)(2). We affirm.




      *
       This order and judgment is not binding precedent, except under the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.
                                  BACKGROUND

        The relevant facts of this case are uncontroverted and arise from a United

States Customs Service undercover operation in Louisiana, designed to identify

and target consumers of child pornography. The Customs Service established an

undercover Internet website that indicated that child pornography was available

from a company located outside the United States. Schatt responded to the

website by e-mail, indicating his interest in obtaining information about child

pornography. The Customs Service then mailed a questionnaire to Schatt’s home

address in Oklahoma City, Oklahoma. Schatt returned the questionnaire, on

which he indicated his interest in child pornography and requested a catalog.

After the catalog arrived, Schatt placed a mail order for two videotapes depicting

children engaged in sexual activity, enclosing a check for the purchase price of

$85.00. The catalog stated that the videotapes would not be sent through the U.S.

mail.

        After receiving Schatt’s order and check, Customs Service agents in

Louisiana sent the ordered videotapes via government courier to other Customs

Service agents in Oklahoma City. A postal inspector disguised as a courier then

made a controlled delivery of the videotapes to Schatt, who was then arrested.

        Schatt was subsequently indicted on counts of (1) knowingly receiving

visual depictions of child pornography that were transported in interstate


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

pornography in violation of 18 U.S.C. § 2252(a)(4)(B). Schatt filed a motion to

dismiss the indictment, arguing that the government’s transportation of the

videotapes from Louisiana to Oklahoma City did not constitute transportation in

interstate commerce within the meaning of the statute. After the district court

denied Schatt’s motion to dismiss, Schatt entered a conditional plea of guilty to

Count 1 in exchange for the Government’s dismissal of Count 2 at sentencing.



                                  DISCUSSION

       We review de novo the district court’s legal conclusions and application of

the law. United States v. Wood, 6 F.3d 692, 694 (10th Cir. 1993) (reviewing

district court’s dismissal of indictment based on its review of the governing

statute). At issue here is whether the uncontroverted evidence could, as a matter

of law, establish a violation of 18 U.S.C. § 2252(a)(2), which provides criminal

sanctions against any person who “knowingly receives . . . any visual depiction

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

interstate or foreign commerce.” 18 U.S.C. § 2252(a)(2). Schatt concedes that

the videotapes he ordered and received contained child pornography, and that they

were transported from Louisiana to Oklahoma City. See Appellant’s Br. at 4.

However, he argues that the government’s delivery of the videotapes was neither


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“interstate,” as the final segment of the delivery from the Oklahoma City Customs

office to his home did not cross state lines, nor “commerce,” as the government is

not in the business of commercial transportation. We disagree with both

contentions.

      The evidence shows that Schatt knowingly ordered pornographic videotapes

from a source outside the state of Oklahoma. In response to this order, the

Customs Service sent two specific videotapes from Louisiana to Oklahoma for

delivery to Schatt. The fact that the tapes arrived first at the Customs Office in

Oklahoma City before being ultimately delivered to his home does not alter the

interstate nature of the transportation. 1 Nor is the commercial nature of the

purchase altered by the fact that the source of the videotapes was the federal

government and not a bona fide pornographer. Schatt engaged in a commercial

transaction when he ordered and submitted payment for the videotapes; their

resulting delivery from Louisiana to Oklahoma thus meets the requirement that




      1
        Neither is this a case where “the federal officers themselves supplied the
interstate element and acted to ensure that an interstate element would be
present.” See United States v. Archer, 486 F.2d 670, 682 (2d Cir. 1973). In this
circuit, we have limited the applicability of Archer to cases of virtual entrapment,
see United States v. O’Connor, 635 F.2d 814, 817 (10th Cir. 1980), which has not
been argued in either this court or the court below.

                                         -4-
the material be “transported in interstate or foreign commerce,” within the

purview of 18 U.S.C. § 2552(a)(2). 2



                                 CONCLUSION

      For the foregoing reasons, we AFFIRM the judgment of the district court.

                                              ENTERED FOR THE COURT


                                              Stephen H. Anderson
                                              Circuit Judge




      2
       In denying Schatt’s motion to dismiss, the district court relied on our
decision in United States v. Esch, 832 F.2d 531 (10th Cir. 1987). We note that
our holding today does not rest on Esch, as that case was decided under 18 U.S.C.
§ 2251. However, we may affirm a judgment on any legal ground supported by
the record. See Wolfgang v. Mid-America Motorsports, Inc., 111 F.3d 1515,
1524 (10th Cir. 1997).

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