                    RECOMMENDED FOR FULL-TEXT PUBLICATION
                         Pursuant to Sixth Circuit Rule 206
                               File Name: 11a0037p.06

              UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT
                              _________________


                                                X
                          Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                 -
                                                 -
                                                 -
                                                    No. 09-3524
          v.
                                                 ,
                                                  >
                                                 -
                       Defendant-Appellant. -
 DANIEL SZYMANSKI,
                                                 -
                                                N
                  Appeal from the United States District Court
                  for the Northern District of Ohio at Toledo.
               No. 08-00417-001—Jack Zouhary, District Judge.
                             Argued: January 13, 2011
                       Decided and Filed: February 7, 2011
            Before: MERRITT, ROGERS, and WHITE, Circuit Judges

                               _________________

                                    COUNSEL
ARGUED: Jeffrey B. Lazarus, FEDERAL PUBLIC DEFENDER’S OFFICE,
Cleveland, Ohio, for Appellant.     Alexandra R. Gelber, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Jeffrey
B. Lazarus, FEDERAL PUBLIC DEFENDER’S OFFICE, Cleveland, Ohio, for
Appellant. Alexandra R. Gelber, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee.
                               _________________

                                    OPINION
                               _________________

       MERRITT, Circuit Judge. Defendant Daniel Szymanski pled guilty to receiving
child pornography and was sentenced to five years’ imprisonment, the statutory
minimum sentence applicable to that charge. On appeal, Szymanski raises a variety of
constitutional arguments, principally contending that the mandatory minimum under



                                         1
No. 09-3524         United States v. Szymanski                                        Page 2


which he was sentenced is unconstitutional in light of United States v. Booker, and
because another offense—possession of child pornography, with which he was not
charged and which, he alleges, is substantially similar if not identical to the receipt
charge—does not carry a mandatory minimum sentence, a state of affairs which he
suggests violates separation of powers. However, in this somewhat unusual case, we do
not reach the merits of the claims Szymanski brings on appeal. Instead, we raise sua
sponte the issue of the validity of Szymanski’s guilty plea, in light of two features of this
case. First, the Supreme Court, over sixteen years ago, construed the crime at issue to
contain an element not necessarily required by its statutory text: a defendant charged
with receipt of child pornography must have knowledge, not only as to the act of receipt
itself, but also as to the fact that the material he is receiving features minors engaged in
explicit sexual conduct. Second, this interpretation of the statute as containing a
demanding scienter requirement was never explained to the defendant during the rather
brief colloquy preceding the district court’s acceptance of his guilty plea. Indeed, our
examination of the record leaves us with the strong impression that the defendant, his
counsel, as well as government counsel at the arraignment did not have an adequate
understanding of the nature of the charge at issue. Moreover, there is evidence that the
defendant specifically denies having any knowledge at all with respect to the content of
the material he was receiving at the time of receipt, the very element the Supreme Court
held necessary for conviction under the receipt charge. Accordingly, we VACATE the
defendant’s conviction and sentence, and REMAND the case for further proceedings.

                                             I.

        The record in this case is relatively limited, and the following factual account is
largely based on the Presentence Report prepared by the United States Probation Office
after Szymanski’s guilty plea and before he was sentenced. The Report was drawn from
accounts provided by government investigators and prosecutors, and from an interview
with Szymanski himself.

        In March 2008, the United States Secret Service received word that a computer
with the user ID “SKYPILOT81” had potentially been involved in the receipt of child
No. 09-3524         United States v. Szymanski                                       Page 3


pornography, and traced that user ID to Szymanski. One month later, on April 30, 2008,
presumably after being contacted by investigators, Szymanski voluntarily reported to the
Toledo office of the Secret Service, and in an initial interview admitted to accessing
child pornography on his computer “by means of chat rooms,” between July 2006 and
July 2007. Signing written waivers, he consented to a search of his residence, and the
removal and search of his computer. Those searches uncovered thirty-three electronic
images of child pornography—specifically, depictions of prepubescent minors under the
age of twelve, “at least one of which depicted sadistic or masochistic
conduct”—contained within a folder on his computer entitled “ct,” apparently a
meaningless designation.

        In a post-conviction interview with the Probation Office, Szymanski offered the
only direct account present in the record concerning how he came to receive these
images. He maintained that his entry into the chat rooms was not for a sexual purpose;
he claimed he was looking for someone to talk to about teens, and stated that his
conversations in the chat room concerned parenting. (His youngest child would have
been approximately twenty-three years old at the time of the charged conduct, though
Szymanski did report a strain in his relationship with him after the death of his mother,
Szymanski’s ex-wife.) He stated that the illicit images were sent to him, apparently via
email, by others in the chat rooms over a short period of time. He said that he “initially”
believed the images were of older teens, who were not minors. He reported viewing
them “out of curiosity,” admitted saving some of them to the “ct” file where they were
eventually found by the authorities, and denied ever being sexually aroused by the
material.

        On October 9, 2008, a one-count information was filed in the Northern District
of Ohio, charging Szymanski with the knowing receipt of child pornography, in violation
of 18 U.S.C. § 2252(a)(2). At his arraignment on November 4, 2008, Szymanski waived
indictment and pled guilty, after a colloquy with the district court that will be relayed in
greater detail below. There was no plea agreement.
No. 09-3524        United States v. Szymanski                                       Page 4


       The only significant dispute in this case between Szymanski and the government
occurred after the plea and prior to sentencing, and was apparently incited by the district
court. After receiving the Presentence Report and finding it to “identif[y] several factors
that may support a downward variance,” the district court invited the parties to submit
briefs concerning “the appropriateness of such a variance and specifically, whether the
Court has legal authority to vary below the statutory minimum mandated by 18 U.S.C.
§ 2252(a)(2).” The parties complied with this request, with Szymanski arguing that the
district court did have legal authority to vary below the statutory minimum, which, he
argued, was unconstitutional.

       After a sentencing hearing, the district court reluctantly sentenced Szymanski to
the statutory minimum of five years’ imprisonment.             In a written Sentencing
Memorandum, the district court first justified a downward variance from the Guidelines
range of 70 to 87 months (citing, among other features of this case, the defendant’s
cooperation with authorities and his remorse), and then expressed grave reservations
about the sentence. The court concluded that it was “handcuff[ed]” by the situation. The
court appeared particularly troubled by the substantial similarity it perceived between
the charged offense, receipt of child pornography—which carries a mandatory
minimum—and possession of child pornography, which carries no minimum sentence.
The district court found that this similarity, which it called “a distinction without a
difference,” created “the potential for gross disparities in sentences” and “effectively
places in the prosecutor the ability to determine the defendant’s sentence, a role reserved
for the judiciary.” Nonetheless, the district court imposed the statutory minimum
sentence, and indicated that it was the job of this Court to “determine, at least in this
context, whether mandatory minimum sentences violate the separation of powers since
the advent of Booker and [its] progeny.” After this rather explicit invitation, this appeal
followed.
No. 09-3524        United States v. Szymanski                                        Page 5


                                           II.

       As indicated above, the district court itself, in its request that the parties brief
whether it could depart from the mandatory minimum sentence, essentially framed the
issues raised by Szymanski on this appeal, which largely challenges the mandatory
minimum applicable to the receipt offense through a variety of constitutional arguments
concerning the import of United States v. Booker and separation of powers. However,
we do not reach those issues in today’s opinion. We find a more basic issue unnoticed
by the prosecution, the defendant, and defendant’s counsel that may avoid the need to
reach the constitutional issues: whether, at his plea hearing, Szymanski was adequately
informed of the nature of the receipt charge, as required by the Federal Rules of Criminal
Procedure. Our review of the record does not support such a finding.

       The issue of the validity of Szymanski’s guilty plea was entirely unraised by the
parties, and so—after requesting the parties come to oral argument prepared to discuss
the issue—we raise it sua sponte. “Although ‘the general rule [is] that an appellate court
will not consider sua sponte arguments not presented or urged by the litigants[,] . . .
[e]xceptional cases or particular circumstances may prompt a reviewing court, where
injustice might otherwise result or where public policy requires, to consider questions
neither pressed nor passed upon below.’” Boals v. Gray, 775 F.2d 686, 691 (6th Cir.
1985) (quoting Nuelson v. Sorenson, 293 F.2d 454, 462 (9th Cir. 1961)). Here, the
potential injustice is as clear as the legal error is basic:      Szymanski may have
unknowingly pled to an offense—subjecting him to a mandatory minimum the district
court sought not to impose—whose elements he did not understand and which he may
not have committed. Accordingly, it is necessary in our view to address this issue.

                    A. The Receipt Offense and X-Citement Video

       The statute establishing the receipt offense reads, in pertinent part:

       [Any person who] knowingly receives, or distributes, 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, or which contains materials which have
No. 09-3524         United States v. Szymanski                                       Page 6


        been mailed or so shipped or transported, by any means including by
        computer, or knowingly reproduces any visual depiction for distribution
        using any means or facility of interstate or foreign commerce or in or
        affecting interstate or foreign commerce or through the mails, if--
        (A) the producing of such visual depiction involves the use of a minor
        engaging in sexually explicit conduct; and
        (B) such visual depiction is of such conduct . . .
        [shall be punished as provided in subsection (b) of this section.]

18 U.S.C. § 2252(a)(2). The word “knowingly” may readily appear to modify only
“receives,” and not the definition of the material it is a crime to receive; that definition
comes some eighty-four words after “knowingly,” in a separate clause contained within
the two subsections in the above-quoted provision. See United States v. X-Citement
Video, Inc., 513 U.S. 64, 80-82 (1994) (Scalia, J., dissenting). The statute can be read
to require only that the “receiv[ing]” be “knowing[]”—that is, that the physical
acceptance into possession that is the bare act of receipt be committed with knowledge
that one is engaged in the act of receiving something—but not to require that the
defendant have any knowledge with respect to what it is he receives. By way of
example, the statute would appear to make into a crime—indeed, one punishable by a
five-year statutory minimum sentence of imprisonment—the situation of purely
accidental receipt, where someone innocently signs for a gift-wrapped package which
unknown to the recipient is stuffed with child pornography.

        This reading of the receipt offense was explicitly rejected by the Supreme Court
almost two decades ago. In United States v. X-Citement Video, Inc., 513 U.S. 64 (1994),
the Court, consciously departing from what it called the “most natural grammatical
reading” of the statute, held that “knowingly” extends “both to the sexually explicit
nature of the material and to the age of the performers.” Id. at 68, 78. In reaching this
conclusion, the Supreme Court relied in part on the general background presumption in
the criminal law that a requirement of scienter or “evil intent” ordinarily applies
wherever a statutory element criminalizes otherwise innocent conduct. See id. at 70–73
(citing Morissette v. United States, 342 U.S. 246 (1952)). Finding that “one would
reasonably expect to be free from regulation when trafficking in sexually explicit, though
not obscene, materials involving adults” and that “the age of the performers is the crucial
No. 09-3524         United States v. Szymanski                                        Page 7


element separating legal innocence from wrongful conduct” the Court reasoned that this
“evil intent” presumption would best be satisfied by reading “knowingly” to apply to the
subparts of the statute defining the illicit material; the result of the case is that scienter
or knowledge as to both the sexually explicit nature of the material and the age of the
depicted subjects is an element of the offense. Id. at 72–73, 78. In other words, the
Supreme Court interpreted § 2252(a)(2) to mean that defendant convicted of receiving
child pornography must have known, not just that he was receiving something, but that
what he was receiving was child pornography.

                        B. Rule 11 and Szymanski’s Plea Hearing

        The consideration and acceptance of a guilty plea is governed by Federal Rule
of Criminal Procedure 11(b). One provision of that rule is relevant to this case: Rule
11(b)(1)(G), which requires the district court, addressing the defendant in open court,
to “inform the defendant of, and determine that the defendant understands . . . the nature
of each charge to which the defendant is pleading.” In interpreting this rule, we have
previously held that simple cases may require only that the charge be read aloud to the
defendant with an opportunity for the defendant to ask questions, but that “further
explanation may be required” in “more complex” cases. United States v. Valdez, 362
F.3d 903, 908 (6th Cir. 2004) (internal quotation marks and citation omitted).
Concerning the specific elements of the crime, we have held that “[s]ome rehearsal of
the elements of the offense is necessary for any defendant.” United States v. Syal, 963
F.2d 900, 905 (6th Cir. 1992); see also Valdez, 362 F.3d at 909 (“At a minimum, the
defendant must understand the ‘critical’ or ‘essential’ elements of the offense to which
he or she pleads guilty.”). Failure to comply with Rule 11(b)(1)(G) is plain error, and
“cannot be said to be harmless, even for an educated, well-represented defendant.”
United States v. Lalonde, 509 F.3d 750, 759–60 (6th Cir. 2007) (quoting Syal, 963 F.2d
at 905).

        The fact that the Supreme Court read § 2252(a)(2) to contain a scienter
requirement as to the sexually explicit nature of the material and the age of the depicted
subjects was never mentioned during the colloquy surrounding the district court’s
No. 09-3524        United States v. Szymanski                                     Page 8


acceptance of the guilty plea, despite apparent confusion on the issue. The court appears
primarily to have assured itself of Szymanski’s understanding of the nature of the charge
against him during the following exchange, after asking the Assistant U.S. Attorney to
summarize the information containing the receipt charge:

       AUSA: The information charges that from on or about July 29, 2006,
       through on or about July 31, 2007, that the defendant did knowingly
       receive in interstate and foreign commerce by means of a computer child
       pornography and computer image files which had been shipped and
       transported in interstate and foreign commerce. Thank you.
       THE COURT: Mr. Szymanski, do you understand the nature of the
       charge?
       THE DEFENDANT: Yes, sir.

       Notably, the AUSA’s summary merely paraphrases the language of § 2252(a)(2).
The summary completely omits the Supreme Court’s substantive gloss, which requires
that Szymanski, at the time he “did knowingly receive,” knew that what he was receiving
was child pornography.

       Later in the proceeding, the district court apparently attempted both further to
inform Szymanski of the nature of the charge and to elicit the plea’s factual basis by
having the AUSA summarize the Government’s investigation, and inquiring whether
Szymanski objected to this account, in the following two exchanges:

       AUSA: Now, had this matter proceeded to trial, the government expects
       that the evidence would have shown beyond a reasonable doubt that an
       investigation was begun in Kentucky regarding an individual who was
       involved in receiving and distributing child pornography. As a result of
       that investigation, the identity of Mr. Szymanski was learned, and
       eventually that information was passed on to the United States Secret
       Service. The Secret Service went to Szymanski’s house. They discussed
       this with him. They asked him to consent to a removal of his computer
       and subject it to a search. He agreed. The computer was removed, it was
       searched, and approximately 33 images of child pornography [were]
       found on the computer. Upon being confronted with this evidence at a
       later time, Mr. Szymanski, after waiving his Miranda warnings, agreed
       that he had received that over the Internet through interstate commerce.
       Thank you.
       THE COURT: Did you have an opportunity to listen carefully, Mr.
       Szymanski, to what the government lawyer just said?
No. 09-3524        United States v. Szymanski                                      Page 9


       THE DEFENDANT: Yes, sir.
       [...]
       THE COURT: Then I want to briefly ask you to reflect for a moment,
       Mr. Szymanski, on Mr. Secor’s recital of the facts underlying the
       information in this case: Essentially that there was a removal of
       your computer pursuant to a search, and that an examination of
       your computer revealed 33 images of child pornography that you
       had received through interstate commerce. Do you disagree with any
       part of that statement or wish to add anything to the statement made by
       Mr. Secor?
       THE DEFENDANT: No, sir.
       THE COURT: Do you wish to make any corrections to that statement?
       THE DEFENDANT: No, sir.

(Emphasis added.) The factual account here, assented to by Szymanski, concerns only
the results of the removal and search of Szymanski’s computer. Again, no mention is
made of the scienter element recognized by X-Citement Video requiring knowledge at
the time of receipt as to the material’s sexually explicit nature and the minority of the
depicted subjects; there is no description of how the images arrived on Szymanski’s
computer—or, more critically, his knowledge when this occurred—apart from the fact
that he “received” them. This account may have been sufficiently illustrative to inform
Szymanski of the nature of the charge were the charged offense possession, which is a
separate crime defined elsewhere in the statute, 18 U.S.C. § 2252(a)(4)(b). But the
omission of anything even approaching a reference to the scienter requirement
recognized by X-Citement Video — along with statements suggesting there was no such
requirement — overlooks a crucial distinction between the receipt and possession
offenses. See United States v. Malik, 385 F.3d 758, 760 (7th Cir. 2004) (noting that “the
receipt offense requires proof that the defendant knew that the persons depicted were
minors” but that “the possession offense lacks that scienter requirement”). Indeed, it
seems possible that a layperson such as Szymanski, being informed of the nature of this
charge in this manner, would simply assume that the receipt statute covered any situation
where someone possessed but did not produce child pornography, since bare receipt,
without the added requirement recognized by X-Citement Video of knowledge as to what
is being received, would be logically entailed in every possession of this sort.
No. 09-3524         United States v. Szymanski                                     Page 10


                       C. The Error’s Effect on the Proceedings

        Technical violations of Rule 11 do not merit the vacating of a conviction
obtained by a guilty plea; Rule 11 contains a harmless-error provision stating that an
error is harmless only if it does not “affect substantial rights.” Fed. R. Crim. P. 11(h).
As explained more fully below, in this case the defendant apparently denied, after
pleading guilty, the very element the Supreme Court held necessary for conviction. The
district court presiding over his case appeared to be unaware of the element’s existence,
and neither counsel for the parties advised the court of the scienter requirement of the
Supreme Court case on point. Accordingly, we find that the omission concerning the
rule of X-Citement Video was not harmless.

        While the record is far from clear about precisely how child pornography found
its way onto his computer, Szymanski appears in the Presentence Report actually to deny
any knowledge that the material he received was child pornography at the time he
received it. As initially mentioned above in our description of the facts, Szymanski in
his post-conviction interview with the Probation Office said he “arrived in chat rooms
regarding teens, looking for someone to talk to about teens.” He “denied that his search
for teen sites was of a sexual nature,” and “reported that while chatting with other adults,
the nature of his online conversations were about their parenting experiences, and that
his position in the chats was from a behavioral nature.” He then received what turned
out to be child pornography via email after his email address was placed on a mailing
list, and “someone in the chat room sent out pictures.” As to his state of mind at the time
of receiving the images, he “stated his belief that the images were initially of older teens
(ages 18 and 19).” In short, Szymanski’s version of events—in which he conspicuously
denies any knowledge that the material was child pornography at the time he received
it—is consistent with his being factually innocent of the receipt charge as defined by X-
Citement Video.

        Finally, the district court in this case disregarded X-Citement Video’s scienter
requirement throughout this case, and appeared to conflate the receipt and possession
offenses, just as a layperson might from the bare summary of the information that was
No. 09-3524            United States v. Szymanski                                               Page 11


delivered to Szymanski at his plea hearing. The district court was clearly unable to
ascertain whether Szymanski understood his plea. See United States v. Maye, 582 F.3d
622, 626–31 (6th Cir. 2009) (setting aside a guilty plea under Rule 11(b)(1)(G) on plain
error review where the district court “expressed a mistaken understanding” of the
conduct criminalized by the statute under which the defendant pled guilty).

         Well after the district court’s acceptance of Szymanski’s plea, the government
at his sentencing hearing for the first time indicated to the district court that the receipt
and possession offenses were distinct because “to prove receipt [the prosecution] need[s]
to do more than show they possessed it on their computer” and because the prosecution
“need[s] to show at some point prior to that they sought out the material.” No one
present at the sentencing hearing noted the stark contrast between this version of the
receipt offense and the one presented to Szymanski at his plea hearing, where precisely
all that was shown was that he “possessed [child pornography] on [his] computer” and
nothing at all was said about whether he “at some point prior to that . . . sought out the
material.”1     Nonetheless, in its Sentencing Memorandum and in the context of
addressing its constitutional concerns with the receipt statute, the district court still
maintained that the distinction between receipt and possession was “a distinction without
a difference.” But there is a difference between the two offenses, and it is one
highlighted by the very Supreme Court case that no one in this proceeding ever explicitly
mentioned: the prosecution must prove that the defendant knew at the time of receipt that
the material he received featured underage subjects engaged in sexually explicit conduct.
See Malik, 385 F.3d at 760 (noting that “the possession offense lacks [this] scienter
requirement”).




         1
           At oral argument in this appeal, the government, while not contesting that a receipt conviction
required proof of scienter as described in X-Citement Video, retreated from its characterization below of
that element as requiring proof of “s[eeking] out” the material. Our disposition of this case turns on the
fact that the scienter requirement was never mentioned at all, and so we need not address its precise
contours here.
No. 09-3524          United States v. Szymanski                               Page 12


                                           III.

       For the above stated reasons, we VACATE Szymanski’s conviction and
sentence, and REMAND the case to the district court for further proceedings consistent
with this opinion.
