                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 03-2708
                                    ___________

Jason Albert Becht,                      *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Minnesota.
United States of America,                *
                                         *
             Appellee.                   *
                                    ___________

                              Submitted: October 18, 2004
                                 Filed: April 7, 2005
                                  ___________

Before COLLOTON, LAY, and BENTON, Circuit Judges.
                           ___________

COLLOTON, Circuit Judge.

       Jason Albert Becht was convicted of one count of possessing child
pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and one count of distribution
of child pornography in violation of 18 U.S.C. § 2252A(a)(1). His conviction was
affirmed on appeal, United States v. Becht, 267 F.3d 767 (8th Cir. 2001), and it is
final. Becht petitioned for relief under 28 U.S.C. § 2255, claiming that his conviction
must be vacated because, in light of the Supreme Court’s decision in Free Speech
Coalition v. Ashcroft, 531 U.S. 1124 (2001), the conviction was based upon a statute
that made criminal certain activities protected by the First Amendment. Becht
supplemented his petition to include a claim of ineffective assistance of appellate
counsel. The district court1 denied his petition, and we affirm.

                                          I.

      Becht owned and operated a website displaying and disseminating child
pornography, which was discovered by law enforcement authorities. Becht was
prosecuted for possession and distribution of child pornography under the Child
Pornography Prevention Act of 1996 (“CPPA”), as codified at 18 U.S.C. § 2252A.
In accordance with the CPPA, the jury instruction under which Becht was convicted
defined “child pornography” as a “visual depiction [that] is, or appears to be, of a
minor engaging in sexually explicit conduct.” (Final Jury Instruction No. 16).2

       Becht’s trial counsel, citing Free Speech Coalition v. Reno, 198 F.3d 1083 (9th
Cir. 1999), objected to the instruction on the ground that the “appears to be” language
of the CPPA infringed upon conduct protected by the First Amendment. The district
court, relying on United States v. Hilton, 167 F.3d 61 (1st Cir. 1999), and United
States v. Acheson, 195 F.3d 645 (11th Cir. 1999), concluded that the statute was
constitutional, because it was narrowly tailored to further a compelling governmental


      1
      The Honorable Michael J. Davis, United States District Judge for the District
of Minnesota.
      2
       The complete jury instruction read as follows:

      “Child pornography” means any visual depiction, including any
      photograph, film, video, picture, or computer or computer-generated
      image or picture, whether made or produced by electronic, mechanical,
      or other means, of sexually explicit conduct, where (1) the production
      of such visual depiction involves the use of a minor engaging in sexually
      explicit conduct, or (2) such visual depiction is, or appears to be, of a
      minor engaging in sexually explicit conduct.

                                         -2-
interest. Becht was convicted and sentenced to ninety-seven months’ imprisonment,
two years of supervised release, and a $200 special assessment.

       On December 28, 2000, Becht retained appellate counsel. On January 22,
2001, the Supreme Court granted certiorari to review the Ninth Circuit’s decision on
the constitutionality of the CPPA, see Ashcroft v. Free Speech Coalition, 531 U.S.
1124 (2001), and Becht asked his counsel to raise the constitutional issue on his
direct appeal to this court. When counsel declined to do so, Becht filed an
unsuccessful pro se motion to dismiss his attorney and to be assisted by new counsel.
In his response to that motion, counsel explained that the appellate strategy was the
result of a review of the transcript, a discussion with Becht’s trial counsel, counsel’s
own legal research, and consultation with other appellate counsel.

       Becht’s counsel eventually filed an appellate brief, which did not raise the
constitutionality of the CPPA or the jury instruction defining “child pornography.”
The brief did argue that the district court’s admission of thirty-nine images of child
pornography unfairly prejudiced Becht’s defense in violation of Federal Rule of
Evidence 403, and that the government offered insufficient evidence to support the
jury’s verdict of guilty. A panel of this court rejected those arguments. Becht, 267
F.3d 767.

      On April 16, 2002, the Supreme Court affirmed the Ninth Circuit in Ashcroft
v. Free Speech Coalition, 535 U.S. 234 (2002), holding that the “appears to be”
language of the CPPA was overbroad and unconstitutional under the First
Amendment. Id. at 258. The Court also remanded a number of cases for further
consideration in light of Free Speech Coalition. See United States v. Mento, 535 U.S.
1014 (2002); Fox v. United States, 535 U.S. 1014 (2002); O’Connor v. United States,
535 U.S. 1014 (2002); Tampico v. United States, 535 U.S. 1014 (2002); Snow v.
United States, 535 U.S. 1014 (2002); Peebles v. United States, 535 U.S. 1014 (2002).
Becht neither argued the constitutionality of the CPPA on direct appeal nor petitioned

                                          -3-
for certiorari on the issue, so his case was not among those remanded for further
consideration.

       One month later, on May 17, 2002, Becht moved to vacate, set aside, or correct
his sentence pursuant to 28 U.S.C. § 2255. Becht argued that his conviction should
be vacated because the law under which he was convicted was facially invalid under
the First Amendment. Becht supplemented his petition with a claim that his appellate
counsel was ineffective for failing to raise the constitutional challenge to the CPPA
on direct appeal despite Becht’s specific request.

      The district court denied Becht’s § 2255 motion, but granted a certificate of
appealability in accordance with 28 U.S.C. § 2253(c)(1)(A) and Federal Rule of
Appellate Procedure 22(b)(1). The certificate framed the issue for appeal as follows:
“Did Petitioner receive ineffective assistance of counsel on direct appeal because his
attorney did not challenge the validity of his guilty plea on the grounds that 28 U.S.C.
§ 2256(8)(B) was unconstitutional?”

                                          II.

       Becht’s § 2255 motion raised both a claim that his conviction was obtained in
violation of the First Amendment, and an assertion that his appellate counsel’s
ineffective assistance resulted in a violation of the Sixth Amendment. The
government argued that Becht had procedurally defaulted his First Amendment claim
by failing to raise it on direct appeal. The district court’s order denying Becht’s
§ 2255 motion discussed Becht’s allegation of ineffective assistance only in the
course of considering whether Becht had demonstrated “cause” and “prejudice” to
excuse his procedural default of a First Amendment challenge to the CPPA. The
district court’s certificate of appealability, however, frames the issue for appeal as
whether Becht received “ineffective assistance of counsel on direct appeal because



                                          -4-
his attorney did not challenge the validity of his guilty plea on the grounds that 28
U.S.C. § 2256(8))(B) was unconstitutional?”

       The certificate of appealability is confusing for two reasons. First, it refers to
the validity of Becht’s “guilty plea” when Becht pleaded not guilty and was convicted
after a jury trial. Second, the certificate does not specify whether it is limited to an
appeal raising Becht’s Sixth Amendment claim that he was deprived of ineffective
assistance of counsel on direct appeal, whether it is limited to an appeal raising
Becht’s First Amendment claim (as to which the ineffective-assistance claim is a
necessary predicate to excuse a procedural default), or whether it is intended to
encompass both claims. We believe that the certificate of appealability is best
construed as authorizing an appeal of both constitutional claims, because a decision
on the issue of ineffective assistance of counsel is necessary to resolution of both
claims. See McCoy v. United States, 266 F.3d 1245, 1248 n.2 (11th Cir. 2001);
Jackson v. Gammon, 195 F.3d 349, 353 (8th Cir. 1999). We assume that the
reference to a “guilty plea” was the result of an oversight, and we construe the
certificate to encompass the question whether Becht’s appellate counsel was
ineffective in failing to challenge the validity of Becht’s conviction by jury.

       To succeed on his First Amendment claim, Becht must show that the claim was
not procedurally defaulted.3 “Where a defendant has procedurally defaulted a claim
by failing to raise it on direct review, the claim may be raised in habeas only if the
defendant can first demonstrate either cause and actual prejudice, or that he is actually
innocent.” Bousley v. United States, 523 U.S. 614, 622 (1998) (internal quotations


      3
       Ordinarily, prior to considering whether Becht’s procedural default was
excused, we would determine whether Becht’s motion is barred by the rule on
retroactivity announced in Teague v. Lane, 489 U.S. 288 (1989). The government,
however, concedes that Free Speech Coalition may fit an exception to the Teague
rule and, “for purposes of this appeal only,” does not argue that Becht’s petition is
barred by Teague. (Gov’t Br. at 11).

                                          -5-
and citations omitted). Becht does not claim actual innocence, and so we consider
only whether he has demonstrated both cause and actual prejudice.

       Ineffective assistance of appellate counsel may constitute cause and prejudice
to overcome a procedural default. Boysiewick v. Schriro, 179 F.3d 616, 619 (8th Cir.
1999). Thus, the condition Becht must meet to proceed on his First Amendment
claim is identical to the merits of his Sixth Amendment claim. To establish
ineffective assistance of counsel, both as an independent claim and as cause and
prejudice to excuse a procedural default, Becht must show that “counsel’s
performance was deficient” and “that counsel’s errors were so serious as to deprive
[him] of a fair trial, a trial whose result is reliable.” Strickland v. Washington, 466
U.S. 668, 687 (1984). In other words, Becht must establish first that his “counsel’s
assistance fell below an objective standard of reasonableness in that counsel failed
to exercise the customary skill and diligence that a reasonably competent attorney
would use under like circumstances; and second, that the deficient performance
prejudiced [his] defense.” United States v. Acty, 77 F.3d 1054, 1059 (8th Cir. 1996)
(internal quotations omitted).

       “Our review of counsel’s performance is highly deferential,” Sherron v. Norris,
69 F.3d 285, 290 (8th Cir. 1995), and “[i]t is the defendant’s burden to overcome the
strong presumption that counsel’s actions constituted objectively reasonable strategy
under the circumstances.” Schumacher v. Hopkins, 83 F.3d 1034, 1037 (8th Cir.
1996). In this case, however, Becht’s appellate counsel failed to raise the First
Amendment issue despite Becht’s specific requests that he do so, where there was a
conflict in the circuits on the constitutionality of the “appears to be” language of the
CPPA, and after the Supreme Court granted certiorari in Free Speech Coalition. For
these reasons, we will assume that Becht received deficient representation on direct
appeal, and proceed to consider whether he has established prejudice. See Owens v.
Dormire, 198 F.3d 679, 682 (8th Cir. 2000).



                                          -6-
       To show that he was prejudiced by deficient performance of counsel, Becht
must establish that counsel’s conduct rendered the result of the proceeding unreliable.
See Lockhart v. Fretwell, 506 U.S. 364, 369 (1993). “A necessary condition for
establishing prejudice is to show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Schumacher, 83 F.3d at 1037.

       To determine whether there is a reasonable probability that the result of the
proceeding would have been different, we consider what this court would have done
had Becht raised the First Amendment issue on appeal. See Duhamel v. Collins, 955
F.2d 962, 967 (5th Cir. 1992). Had he done so, this court either would have
anticipated the Supreme Court’s decision and found the CPPA unconstitutional or
would have agreed with the majority view at the time that the statute was
constitutional. In the latter event, it is reasonably probable that Becht would have
filed a petition for writ of certiorari, and this court would have reviewed the case
again on remand from the Supreme Court after the decision in Free Speech Coalition.
In either event, the question would have arisen whether the faulty jury instruction
including the “appears to be” language was subject to review for harmless error.

       There are two lines of decisions from the Supreme Court that bear on whether
the faulty jury instruction in Becht’s trial may be considered harmless error. One
series of cases, beginning with Stromberg v. California, 283 U.S. 359 (1931),
addresses the situation in which a jury returns a general verdict of guilty after a case
is submitted on alternative theories, and one of the theories is later determined to be
unconstitutional. Because a reviewing court cannot know whether the jury convicted
based on a constitutional theory or an unconstitutional theory, the Supreme Court has
held in several such cases that a general verdict of guilty cannot stand. “It has long
been settled that when a case is submitted to the jury on alternative theories the
unconstitutionality of any of the theories requires that the conviction be set aside.”
Sandstrom v. Montana, 442 U.S. 510, 526 (1979) (quoting Leary v. United States,

                                          -7-
395 U.S. 6, 31-32 (1969)). Most recently, in Griffin v. United States, 502 U.S. 46
(1991), the Court explained that Stromberg does “not necessarily stand for anything
more than the principle that, where a provision of the Constitution forbids conviction
on a particular ground, the constitutional guarantee is violated by a general verdict
that may have rested on that ground.” Id. at 53.

       Although the Supreme Court has not discussed Stromberg in the specific
context of harmless-error analysis, some appellate decisions have read Stromberg to
circumscribe harmless-error review. The Eleventh Circuit has concluded that in a
Stromberg-type case, the reviewing court may not consider whether the strength of
the evidence on the valid theory submitted to the jury is sufficient to render harmless
the error of instructing the jury on an alternative theory that is unconstitutional:
“Stromberg does not suggest a harmless error standard based on overwhelming
evidence of guilt under the valid portion of the jury charge. Rather, Stromberg states
simply that if it is ‘impossible’ to say on which ground the verdict rests, the
conviction must be reversed.” Adams v. Wainwright, 764 F.2d 1356, 1362 (11th Cir.
1985). See also Parker v. Sec’y, Dep’t of Corr., 331 F.3d 764, 778 (11th Cir. 2003)
(“An error with regard to one independent basis for the jury’s verdict cannot be
rendered harmless solely because of the availability of the other independent basis.”).

       A second line of Supreme Court decisions, however, has emphasized that most
constitutional errors are subject to review for harmlessness. The Court has
“‘repeatedly reaffirmed the principle that an otherwise valid conviction should not be
set aside if the reviewing court may confidently say, on the whole record, that the
constitutional error was harmless beyond a reasonable doubt.’” Rose v. Clark, 478
U.S. 570, 576 (1986) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986)).
A narrow class of errors – defects “affecting the framework within which the trial
proceeds, rather than simply an error in the trial process itself” – are considered
“structural” errors that require automatic reversal. Neder v. United States, 527 U.S.
1, 8 (1999) (quoting Arizona v. Fulminante, 499 U.S. 279, 310 (1991)). In its most

                                         -8-
comprehensive discussion of “structural” errors, the Court identified a list of errors
that defy harmless error review: the complete denial of counsel, a biased judge, racial
discrimination in jury composition, denial of a public trial, and a defective jury
instruction on the reasonable-doubt standard of proof. Neder, 527 U.S. at 8. By
contrast, harmless-error review may be conducted with respect to a trial court’s
failure to instruct on an essential element of a crime, id. at 13-15, and to an
instructional error on an element of a crime that renders the resulting conviction
unconstitutional. Rose, 478 U.S. at 576-82; Pope v. Illinois, 481 U.S. 497, 501-02
(1987).

       “[A] constitutional error is either structural or it is not,” Neder, 527 U.S. at 14,
and we believe the flawed instruction in Becht’s case is a trial error that belongs in
the category that may be reviewed for harmlessness. The Supreme Court’s decision
in Pope provides particularly useful guidance. There, the defendants were convicted
in separate cases of selling obscene materials. In light of an Illinois obscenity statute
that permitted the admission of evidence concerning “[t]he degree, if any, of public
acceptance of material in this State,” Ill. Rev. Stat., ch. 38, ¶ 11-20 (1983) (emphasis
added), the trial court instructed the juries to determine whether the material was
obscene based on “how it would be viewed by ordinary adults in the whole State of
Illinois.” 481 U.S. at 499.

       This instruction was constitutional error, because the First Amendment
required the jury to measure the value of the allegedly obscene material according to
a national “reasonable person” standard, rather than a narrower community standard.
As a result, “there was necessarily a ‘gap’ between what the jury did find (that the
allegedly obscene material lacked value under ‘community standards’) and what it
was required to find to convict (that the material lacked value under a national
‘reasonable person’ standard).” Neder, 527 U.S. at 13-14. Despite that gap, the
Court remanded the case for harmless-error analysis. Pope, 481 U.S. at 504. The
Court explained that “in the absence of error that renders a trial fundamentally unfair,

                                           -9-
such as a denial of the right to counsel or trial before a financially interested judge,
a conviction should be affirmed ‘[w]here a reviewing court can find that the record
developed at trial established guilt beyond a reasonable doubt’” under the correct
legal and constitutional standard. Id. at 502-03 (quoting Rose, 478 U.S. at 579).

        In Becht’s case, there is a similar gap: If the jury convicted Becht under the
“appears to be” language, there is a gap between the findings necessary to support
such a conviction and the findings required to support a conviction for possession of
images depicting actual children. As Pope and Neder explain, however, this gap does
not preclude harmless error review. Even had an objection to the “appears to be”
instruction been raised on direct appeal, Becht’s conviction would have been affirmed
if the trial record established guilt beyond a reasonable doubt under the alternative
theory that Becht possessed images of actual children – just as the Supreme Court
directed the Illinois courts to consider whether the error in Pope was harmless after
replacing the erroneous “contemporary community” standards with the
constitutionally-acceptable “national ‘reasonable person’ standard.”

       In light of Pope, Neder, and Rose, we believe that if Becht’s jury had been
instructed only on the erroneous theory that Becht possessed images of what
“appeared to be” children, then the error would have been subject to harmless-error
review. If the trial record established that any reasonable jury would have found guilt
beyond a reasonable doubt under the correct constitutional standard – that Becht
possessed images of actual minors – then the reviewing court could conclude that the
instructional error was harmless. It would be anomalous to read Stromberg to
preclude harmless-error review in Becht’s case because the jury also was given the
option to convict based on a constitutionally valid theory that Becht possessed images
of actual children. As the First Circuit remarked, this assertion “reduces to the
strange claim that, because the jury here received both a ‘good’ charge and a ‘bad’
charge on the issue, the error was somehow more pernicious than in Rose – where the
only charge on the critical issue was a mistaken one. That assertion cannot possibly

                                         -10-
be right, so it is plainly wrong.” Quigley v. Vose, 834 F.2d 14, 16 (1st Cir. 1987) (per
curiam).

       In view of the Court’s recent decisions concerning harmless-error review, we
think the Stromberg line of cases is best read as an exception to the common law rule
that where a general verdict of guilty rested upon both a “good” charge and a “bad”
charge, it was presumed that the jury’s verdict attached to the “good” one. See
Griffin, 502 U.S. at 49-50. Where a general verdict may have rested on a ground that
is forbidden by the Constitution, Stromberg prevents a reviewing court from
presuming that the jury convicted on an alternative theory permitted by the
Constitution, merely because the evidence was sufficient to support the constitutional
ground. Stromberg thus establishes that there is “error” in such a case; it does not
speak to whether the error may be harmless. The Court in Neder made no mention
of the Stromberg line of cases when it catalogued those “structural errors” that defy
harmless-error review, and for the reasons discussed, we believe that a Stromberg-
type instructional error is an error in the trial process itself that may be reviewed for
harmlessness. Indeed, we have held that a jury instruction using the erroneous
“appears to be” language from the CPPA was not “plain error” warranting relief,
United States v. Wolk, 337 F.3d 997, 1004 (8th Cir. 2003), and that holding “cuts
against the argument” that the flawed instruction will always render a trial unfair. See
Neder, 527 U.S. at 9.

      We conclude, therefore, that the unconstitutional jury instruction would have
been reviewed for harmless error if Becht had raised the issue on appeal. On direct
appeal, the government would have borne the burden of establishing that the error
was harmless beyond a reasonable doubt. In this § 2255 habeas corpus proceeding,
however, it is Becht’s burden to establish that he suffered prejudice as a result of his
appellate counsel’s deficient performance. United States v. Apfel, 97 F.3d 1074, 1076
(8th Cir. 1996). Becht “must show that there is a reasonable probability that, but for



                                          -11-
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694.

       The standard for prejudice under Strickland is virtually identical to the showing
required to establish that a defendant’s substantial rights were affected under plain
error analysis. See United States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005);
United States v. Saro, 24 F.3d 283, 287 (D.C. Cir. 1994). In both instances, the party
challenging a conviction must show a reasonable probability that absent the alleged
error, the outcome of the proceeding would have been different. See United States
v. Dominguez Benitez, 124 S.Ct. 2333, 2339-40 (2004). Comparison of the plain
error and Strickland prejudice standards is helpful in this case because we and other
courts previously have considered whether a jury instruction that is erroneous under
the decision in Free Speech Coalition amounts to “plain error” warranting relief. See
Wolk, 337 F.3d at 1004; United States v. Hall, 312 F.3d 1250, 1260 (11th Cir. 2002);
United States v. Richardson, 304 F.3d 1061, 1064 (11th Cir. 2002). In those cases,
where a jury was instructed that it could convict upon finding possession of a visual
depiction that “appears to be” of a minor, the reviewing courts looked to the available
evidence, found that the children depicted were actual minors, and concluded that the
defendant’s substantial rights were not affected by the erroneous jury instruction. Id.

       The images that Becht was convicted of possessing were introduced at his trial
and viewed by the jury that convicted him. They remain in the record, and we have
examined them. We have no doubt that the images depict real children. We have
held that a jury may find that images depict real children based only on a review of
the images themselves, United States v. Deaton, 328 F.3d 454, 455 (8th Cir. 2003);
United States v. Vig, 167 F.3d 443, 449-50 (8th Cir. 1999), and we conclude in this
case that “no rational juror, if properly instructed” could find that the depictions were
not of actual minors. Pope, 481 U.S. at 503; see Wolk, 337 F.3d at 1004; Hall, 312
F.3d at 1260; Richardson, 304 F.3d at 1064 & n.2; cf. United States v. Hilton, 386
F.3d 13, 18-19 & n.5 (1st Cir. 2004) (affirming grant of habeas relief based on

                                          -12-
unconstitutionality of CPPA where “the government failed effectively to preserve the
issue of harmless error review on appeal”); United States v. Ellyson, 326 F.3d 522,
531 (4th Cir. 2003) (holding that erroneous “appears to be” jury instruction was not
harmless error where government expert testified that he did not know whether
charged images depicted actual children or were virtual creations).

       Becht has offered no evidence to suggest that the depictions did not involve
actual children. He produced no evidence at trial that the depictions were “virtual
images.” In this § 2255 proceeding, where Becht bears the burden of proving
prejudice, he did not request an evidentiary hearing or otherwise proffer that he could
present any evidence that the children depicted were not actual minors. And as the
Supreme Court itself observed in Free Speech Coalition, the hypothesis that virtual
images are indistinguishable from real ones is “somewhat implausible,” because “[i]f
virtual images were identical to illegal child pornography, the illegal images would
be driven from the market by the indistinguishable substitutes.” 535 U.S. at 254.
Because we have no doubt that any reasonable jury considering the trial record would
find that the depictions were of actual minors, and Becht has offered no evidence to
the contrary in this habeas corpus proceeding, we conclude that he failed to establish
prejudice arising from his appellate counsel’s failure to challenge the erroneous jury
instruction on direct appeal.

                                      *    *     *

      For the foregoing reasons, we conclude that Becht has failed to demonstrate
prejudice resulting from his counsel’s performance on direct appeal. Consequently,
he has not established a deprivation of his right to counsel under the Sixth
Amendment or cause and prejudice to excuse his procedural default on his First
Amendment claim. Accordingly, the judgment of the district court is affirmed.
                       ______________________________



                                          -13-
