## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-1982

___________ United States of America, * * Appellee, * * Appeals from the United States v. * District Court for the District * of South Dakota. Tom Vig, *

Appellant. *

___________ No. 98-2003

___________ United States of America, * * Appellee, * * v. * * Donovan Vig, * * Appellant. *

___________ Submitted: October 20, 1998 Filed: February 2, 1999

___________ Before FAGG, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________The Honorable Lawrence L. Piersol, United States District Judge for th e 1 District of South Dakota, presiding. -2- BEAM, Circuit Judge.
Tom and Donovan Vig appeal their convictions, following a jury trial, fo r 1 viola tionof section 2252(a)(4)(B) of the Protection of Children Against Sexua l Exploit ation Act of 1977, as subsequently amended, which prohibits the knowin g possession of three or more books, maga zines, periodicals, films, video tapes, or other matter containing any visual depiction of a minor engaging in sexually explici t conduct.
On appeal, Tom Vig raises one issue and Donovan Vig raises three. First, both claim that the evidence was legally insufficient to support their convictions under 1 8 U. S.C. § 2252(a)(4)(B). Specifically, they argue that the district court erroneousl y int erpreted the phrase "other matter" in section 2252(a)(4)(B) to include compute r image files. In addition, Donovan Vig claims that: (1) the government failed to prove that the subjects of the visual depictio ns were actual children; and (2) the district court erred in den ying his post-trial motion for either a new trial or an evidentiary hearin g based on allegations of juror misconduct. For the reasons discussed below, we affirm.

I. BACKGROUND

We briefly state the background facts and procedural history, reserving mor e detailedstatements for the portions of this opinion in which we discuss the specifi c issues rais ed by the defendants. On or about February 19, 1997, Tom Vig took hi s personal home computer to P C Doctor, a computer repair and service center, in Sioux Falls, South Dakota. Vig informed James Roby, service manager at PC Doctor, that the comp uter was not working properly because of something that had bee n downlo aded off the Internet. While repairing the computer, Roby came acros s computer images of children engaged in various forms of sexual activity. H eCount I of the indictment charged that Tom Vig knowingly possessed 1 5 2 computer image files. Count II of the indictment charged that Donovan Vig knowingly possessed 13 such files. -3- immediately informed manage ment of what he had seen. Management then contacted the United States Marshals office in Sioux Falls which, in turn, contacted the FBI.

A few days l ater, Matthew Miller, an FBI Special Agent met with Tom Vi g concerningthe allegation of child pornography on his computer. During the meeting, TomV ig admitted to Miller that the computer was his and that he had seen an d downloaded pic tures of nude children out of curiosity. Miller requested and received TomV ig's consent to seize and examine the computer. The following day, Mille r examin ed the computer at PC Doctor and confirmed the existence of several image s of chil dren engaged in sexual activity on the computer's C and D hard drives. O n Febr uary 24, Miller had a phone conversation with Tom Vig, during the course o f which, Tom V ig explained to Miller that he used a special program to access an d search various news groups on the Internet and that it was while he was in these news groups that he had see n and downloaded pictures of nude children onto the "C" drive. Miller also spoke with Tom Vig's son, Donovan Vig, who told Miller that he to o
ac cessed news groups where he had frequently seen pictures of nude children, som e of whom app eared to be between five and six years old. According to Miller, bu t disputed by Donovan Vig at trial, Donovan Vig also admitted that he had downloaded such pictures but that he did not know why he did so.
On October 23, 1997, Tom and Donovan Vig were each ch arged with one count of knowingly posses sing three or more computer image files in violation of 18 U.S.C. § 2252( a)(4)(B). A jury trial followed. At the close of the government's case , 2 defendant s made a motion for a judgment of acquittal claiming that: (1) compute r files were not "other matter" within the meaning of section 2252(a)(4)(B), an d therefo re, the evidence was legally insufficient to convict them; and (2) th e government had not met its burden of proving that the subjects of the visual depictionsThe district court subsequently filed a Memorandum Opinion and Orde r 3 explain ing, in further detail, its decision that computer image files constituted "othe r matter" within the meaning of section 2252(a)(4)(B). The relevant portion of the statute states: 4 Any person who– knowing ly possesses 3 or more books, magazines, periodicals, films , video tapes, or other matter which contain any visual depiction that ha s been maile d, or has been shipped or transported in interstate or foreig n commerce, or which was produced using materials which have bee n mailed or so shipped or transported, by any means including b y computer, if– -4- were real ch ildren. The court reserved ruling on the first argument until it had a n oppo rtunity to thoroughly consider the questions involved. It rejected the secon d argument.

On January 8, 1998, the jury found the defendants guilty. Subsequently , Donov an Vig filed a motion for a new trial based on newly discovered evidence o f juror mi sconduct. At the sentencing hearings, the district court announced its rulin g denying the defendants' motions for acquittal, as well as Donovan Vig's motion for a new trial. Each defendant was sentenced to thirty-seven months' imprisonment and

3 a $1000 fine.

II. DISCUSSION

A. "Other Matter"

In orde r to be found guilty of violating 18 U.S.C. § 2252(a)(4)(B), a n individual must knowingly possess "3 or more books, magazines, periodicals, films , video tape s, or other matter" containing a visual depiction of a minor engaging i n sexually explicit conduct. The central issue on appeal is the appropriate meaning of 4(i) the pr oducing of such visual depiction involves the use of a mino r

engaging in sexually explicit conduct; and (ii) such visual depiction is of such conduct; shall be punished as provided in subsection (b) of this section. 18 U.S.C. § 2252(a)(4)(B). The computer used by the defendants contained two hard drives, the "C" and 5 the "D." All the computer image files listed in Count I of the indictment against Tom Vig were take n from the "C" drive of the computer and all the computer image file s listed in Count II against Donovan Vig were found on the "D" drive. -5- the phrase "other matter" as it is used in the statute. Specifically, whether th e de fendants can be convicted under section 2252(a)(4)(B) when the visual depiction s were sa ved in three or more computer image files that were located on only a singl e computer hard drive. 5

De fendants' contend that "other matter" refers to the physical medium tha t contains the visual depictions, in this case, the computer hard drive. Therefore, they argue that the evidence presented at trial , which showed that they possessed numerous computer image files, but on only one hard drive, was insufficient to convict them of possessing three or more "other matter." The government argues, on the other hand, that "ot her matter" refers to the computer image files. Thus, because the evidenc e showed that each defendant possessed more than three such files, it was sufficient to support th eir convictions under the statute. In denying the defendants' motions fo r acquittal, the district court agreed with the government's interpretation, and held that
a c omputer image file constitutes "other matter" within the meaning of sectio n 2252(a)( 4)(B). Defendants' contend that the court's decision was based on a n erroneous interpretation of the statute.-6-

We review the district court's denial of a motion for judgment of acquittal based upon sufficiency of the evidence by viewing the evidence in the light most favorabl e to the verdict. See United States v. Smith , 104 F.3d 145, 147 (8th Cir. 1997). We give the government the benefit of all reasonable inferences that could logically be drawn from the evidence. See id. We must uphold the verdict if the evidence so viewed is such that there is an interpretation of the evidence that would allow a reasonable-mi nded jury to find the defendants guilty beyond a reasonable doubt. See id. However, the district court’s interpretation of 18 U.S.C. § 2252(a)(4)(B) represents
a quest ion of law which we review de novo. See Department of Social Servs. v

. Bowen , 804 F.2d 1035, 1037 (8th Cir. 1986).
1. Plain Meaning of the Statute

In de termining the meaning of the phrase "other matter" as it is used in 1 8 U.S. C. § 2252(a)(4)(B), our starting point must be the plain language of the statute

. See United Sta tes v. Talley , 16 F.3d 972, 975 (8th Cir. 1994). Our objective i n interp reting a federal statute is to give effect to the intent of Congress. See Linquis t
v. Bowen , 81 3 F.2d 884, 888 (8th Cir. 1987). Neither section 2252 nor the chapte r prov ides a specific definition for the term "other matter" as used in this section. I n such cases, we look to the ordinary, commons ense meaning of the words. See United States v. J ohnson , 56 F.3d 947, 956 (8th Cir. 1995). The ordinary meaning of th e words is presumed to express congressional purpose. See Minnesota v. Heckler , 718 F.2d 852, 860 (8th Cir. 1983). Therefore, absent clearly ex pressed legislative intention to the contrary, the language is regarded as conclusive. See id

. The statute prohibits the possession of "3 or more books, magazines , periodicals, films, video tapes, or other mat ter which contain any visual depiction." The language indica tes that "other matter" is simply something which, at a minimum, must b eWebster’s dictionary defin es "contain" as: "To have as contents or constituent 6 parts; comprise; include." Random House Webster's Unabridged Dictionary 438 (2d ed. 1997). We wish to make clear that a computer image file which contains only a single 7 vis ual depiction still falls within the statutory definition of "other matter." Sectio n 2252(a)( 4)(B) does not require an item to contain multiple visual depictions, one i s sufficient. Cf. United States v. Fellows , 157 F.3d 1197, 1201 (9th Cir. 1998). Noscitur a sociis : The meaning of doubtful terms or p hrases may be determined 8 by reference to their relationship with other associated words or phrases. 2A Norman J. Singer, Sutherland Statutory Constructio n § 47.16 (5th ed. 1992). Ejusdem generis : Wh ere general words follow specific words in a statutory enumeration, the genera l words are construed to embrace only objects similar in nature to those object s enumerated by the preceding specific words. Id. § 47.17. -7- capable of containing a visual depiction. The computer image files all contained one, 6 and some more than one, visual depiction. The Seve nth Circuit's recent interpretation 7 of the phrase "other matter" in United States v. Hall , 142 F.3 d 988 (7th Cir. 1998), also in forms our analysis. In considering the question of whether computer image file s were "other matter" under section 2252(a)(4)(B), the court in Hall noted:
Although th e statute does not define "other matter" . . . plain meanin g su ggests a prohibition of three or more of anything containing a visua l depi ction transported in interstate commerce. In this case, the "othe r matter" or "materials" are the 403 individually-named computer files.

Hall , 142 F.3d at 999.
Defendants rely heavily on United States v. Lacy , 119 F.3d 742 (9th Cir. 1997), cert. deni ed , 118 S. Ct. 1571 (1998) in which the court, although conceding that both disks and image files could be viewed as containing visual depictions, nevertheles s concludedthat two canons of statutory interpretation– noscitur a sociis and ejusdem generis –led it to believe that "matter" ref erred to the physical medium that contained 8-8-

the vis ual depiction– the hard drives and floppy disks. See id. at 748. We decline to adopt the Lacy

court's reasoning. We are aware of the cano ns of statutory construction noscitur a sociis and ejusdem generis

. When properly applied they are useful tools. How ever, these canons are "only aids to judicial interpretation, and they will not b e appliedwhen there is no ambiguity, to defeat the legislative intent and purpose, t o make general words meaningless, or to reach a conclusi on inconsistent with other rules of con struction." Donovan v. Anheuser-Busch, Inc. , 666 F.2d 315, 327 (8th Cir

. 1981).

Even if we were to rely on such statutory tools, we find defendants' proposed app lication of them to the statute to be unpersuasive. To conclude, as defendants ' argue, that a hard drive is the computer equivalent of a book, magazine, periodical , etc., wou ld result in the absurd scenario where an individual who possesses thre e books wit h one visual depiction apiece violates the statute, but an individual with hundreds of i mages on a hard drive does not. We find the Ninth Circuit's reasonin g in United States v. Fellows , 157 F.3d 1197 (9th Cir. 1998), to be more compelling. In Fellows , the court stated that: "[a] computer hard drive is much more similar to a libra ry than a book; the hard drive can store literally thousands of documents an d visual depictions. Each file w ithin the hard drive is akin to a book or magazine within that library." Id. at 1201.

In sum , we find that the plain common sense meaning of "other matter " encompasses computer image files.-9-

B. Legislative History
Unless exceptional circumstances dictate otherwise, when the terms of a statute
are u nambiguous, judicial inquiry is complete. See In re Erickson Partnership , 85 6 F.2d 1068, 1070 (8th Cir. 1988) . "We ask not what the Congress means; we ask only what the statute means." United States v. Hepp , 656 F.2d 350, 353 (8th Cir. 1981) ; see, e.g. , Northern States Power Co. v. United States , 73 F. 3d 764, 766 (8th Cir. 1996) (stating that when "statutes are straightfo rward and clear, legislative history and policy argum ents are at best interesting, at worst distracting and misleading, and in neithe r
ca se authoritative"). Even though we are not compelled to examine the statute' s legislative history, we non etheless do so in order to address defendants' claim that our reading of the statute distorts or thwarts congressional intent. See Sierra Club v. Clark , 755 F.2d 608, 615 n.9 (8th Cir. 1985).

Defenda nts argue at length that the legislative history reveals a congressiona l intent that " other matter" was not meant to include computer image files. Their focus is the addition of section 2252A(a)(5)(B) in 1996 which criminalized the knowin g possession of "any book, magazine, periodical, film, videotape, computer disk, or any other materia l that contains 3 or more images of child pornography." 18 U.S.C. § 2252A( a)(5)(B). The district court concluded that the addition of sectio n 2252A(a)(5)(B) did not mean that the conduct a t issue was not already criminalized by section 2252(a)(4)(B). Defendants contend, however, that the new amendment cannot simpl y be read as clarifying the existing law. They argue that the amendment whe n coupled w ith the Senate Judiciary Committee's comments that "[s]ince a singl e computer disk is capable of storing hundreds of child porn ographic images, current law effect ively permits the possession of substantial collections of child pornography, a loophole that will be closed under this section," conclusively proves that Congress did not intend for the phrase "other matter" in section 2252(a)(4)(B) to include computer image files. S. Rep. No. 104-358 (1996).Finally, defendants contend that the rule of lenity bars their prosecution under 9 section 2252(a)(4)(B). However, because we have concluded that no grievou s ambiguity or uncertainty exists in the statute involved, we find the rule of lenity to be inapp licable in this case. See United States v. Long Elk , 805 F.2d 826, 829 (8th Cir. 1986). -10- We are not persuaded by this argument. We do not think that the Committee's remark s, which go against the plain meaning of the statute and made six years afte r the passage of section 2252(a)(4)(B), are entitle d to much weight. The Supreme Court has stated that "the views of a subsequent Congress form a hazardous basis fo r inferr ing the intent of an earlier one." United States v. Price , 361 U.S. 304, 31 3 (1960). "[S] uch '[l]egislative observations . . . are in no sense part of the legislativ e history.'" Oscar Mayer & Co. v. Evans , 441 U.S. 750, 758 (1979). Instead, it is the intent of the Congress that enacted the section that controls. See id. Moreover, the Supreme Court has observed that "even when it would o therwise be useful, subsequent leg islative history will rarely override a reasonable interpretation of a statute that can be gleaned from its language and legis lative history prior to its enactment." Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc. , 447 U.S 102, 118 n. 13 (1980) ( noting als o that a "mere statement in a conference report . . . as to what the Committe e believes an earlier statute meant is obviously less weighty").

Section 2252(a)(4)(B) first went into effect on November 29, 1990. See Pub

. L. No. 10 1-647, § 323(a)(2), 104 Stat. 4816, 4818 (1990). Examination of it s legislative history prior to this date reveals no insight as to what Congress intended the precise scope of "other matter" to be. See1990 U.S.C.C.A.N. (1 04 Stat.) 6472 et seq
. If anything, the addition of section 2252(a)(4)(B) i ndicates an expansion of Congress's enforce ment

authority under the statute, because now, in addition to transportation , sale, and distribution, the mere possession of child pornography was also criminalized. In short, we think that the legislative history contains nothing that would justify ou r departing f

rom the statute's plain, ordinary meaning. Thus, based on the plai n 9

me aning of the statute, and bolstered by the absence of legislative history to th eFor

purposes of this section, "minor" is defined as "any person under the age 10 of eighteen years." 18 U.S.C. § 2256(1). At trial, the government presented evidence of the images contained in th e 11 computer files through paper copies of what wo uld appear on a computer screen if one wer e to view the files using a computer or to print the contents of the files using a printer. -11- contrary, we hold that computer image files are encompassed within the meaning o f "other matter" in section 2252(a)(4)(B).

C. Depictions of "Real Children"
Donovan Vig also claims that the district court erred in denying his motion for judgmen t of acquittal because the government did not present sufficient evidenc e showing that the subjects of the visual depictions were real minors as required under the statute. See18 U.S.C. § 2252( a)(4)(B)(i) & (ii). In reviewing the sufficiency of 10 the evidence, we consider it in the light most favorable to the jury verdict and accept all reasonable inferences from the evidence which tend to support the jury verdict. See United States v. Broyles , 37 F.3d 1314, 1317 (8th Cir. 1994). Vig's specific argument is that modern technolog y can create images so similar to a human being that it would be difficult to decipher what they are by just looking at them. Technology, h e speculates, might create computer-generated images that look exactl y like real children. He concludes that because the only evidence the government presented to show tha t the images were of real children were the images themselves, the government failed 11 to meet its burden of proof. We disagree.

The images were viewed by the jury which was in a position to draw its ow n independent

conclusion as to whether real children were depicted. See id. at 131 8 (finding suf

ficient evidence that subjects of video were in fact under the age o f eighteen when, among other things, videotape was viewed by jury which could draw its own conc lusions as to age of subjects). Furthermore, the jury was aided in it s-12-

observations by Dr. Ric h Kaplan, an associate professor of pediatrics with a specialty in child maltr eatment. Dr. Kaplan testified that at least one of the subjects from th e ima ge or images found in each of the thirteen files charged against Vig, except one , was a minor.
Vig, nevertheless, argues that although Dr. Kaplan may have testified that the subjects were minors, he failed t o testify that they were real minors and not computergenera ted images. We note, however, that the defense failed to cross-examine or i n any way rebut the testimony elicited from Dr. Kaplan. Vig produced no expert evidence a

t trial to show that the images were computer generated or other than what they appeared to be. In essence, Vig's claim t hat the images may not have been of real chi ldren is purely speculative and we do not think that the government, as part of it s affirmative case, was required to negate what is merely unsupported speculation. See United S tates v. Nolan , 818 F.2d 1015, 1020 (1st Cir. 1987) (stating tha t uncorroborated speculation that some undefined technology exists to produc e pornographic pictures without use of real children is not sufficient basis for rejecting lower court's determination to admit evidence). Proof beyon d a reasonable doubt does not require the government to produce evidence which rules ou t every conceivable way the pictures could have been made without using real children. See id . We think that the government presented sufficient eviden ce from which a jury could reasonably infer that the subjects of the visual depictions were actual minors engaging in sexuall y explicit conduct.

D. Juror Misconduct

Fina lly, Donovan Vig challenges the district court's denial of his motion for a new trial or, in the alternative, for an evidentiary hearing based on newly discovered evidence of juror misconduct. The alleged misconduct centers around a juror' s comments in a post-trial radio interview. The juror found Donovan Vig's claim, that th e child pornography was unknowingly downloaded along with the othe r-13-

pornog raphy, was inconsistent with the evidence that one of the files contained onl y images of child pornography, not interspersed with anything else. Vig asserts that no such factua l evidence was admitted at trial and therefore the juror's consideration o f such facts must be considered an extraneous influence on the jury verdict.
The district court may grant a motion for a new trial based on newly discovered evidence "if

required in the interest of justice." Fed. R. Crim. P. 33. In handlin g allegations of juror mi sconduct, the district court has broad discretion and its decision will be affirmed absent an abuse of dis cretion. See United States v. Williams , 77 F.3d 1098, 1100 (8th Cir. 19 96). Rule 606(b) generally prohibits a juror from impeaching his or her verdict wit

h the exception that a juror may testify to extraneous information or improper influence in the jury room. See Un ited States v. Krall , 835 F.2d 711,715- 16 (8th Cir. 1987). " Extrinsic or extraneous influences include publicity received and discus sed in the jury room, matters considered by the jury but not admitted int o
e vidence, and communications or other contact between jurors and outside persons." United States v. Bassler , 651 F.2d 600, 602 (8th Cir. 1981).

The district court denied Vig's motion, concluding that the comments did no t const itute consideration of "extraneous" information but related merely to the juror' s own in ternal mental processes. We agree. At worst, the juror's comments reflect a misapprehension of the evidence presented. Vig, nevertheless, argues tha t misapprehe nsion of the evidence alone is sufficient for a finding of extraneou s influence. We cannot accept this proposition. Examinat ion of the method and manner in which a juror construes evidence presented during trial, would plunge this court into the very kind of post-verdict anatomization of a juror's thought processes that is barred by Rule 60 6(b). Accordingly we find no abuse of the district court's discretion i n denying Donovan Vig a new trial or an evidentiary hearing.

III. CONCLUSION-14-

For the r easons discussed above, we affirm the district court and uphold th e defendants’ convictions.
MORRIS SHEPPARD ARNOLD, Circuit Judge, dissenting.

I resp ectfully dissent from the court's judgment because I think that Unite d States v. Lacy , 119 F.3d 742 (9th Cir. 1997), cert. denied , 118 S. Ct. 1571 (1998), was correctly de cided. Even if that case, for the reasons that the court mentions today , adopted a construction of the statute that is probl ematic, I believe that the rule of lenity requires a result different from the one that the court reaches in this case.

It seems to me that the phrase "other matter" lends itself as plausibly to a construction that favors the defendants as it does to the opposite construction. Th e view of the Seventh Circuit, and of the court today, that "other matter" mean s "anything containing a visual depic tion" is a reasonable one, see United States v. Hall , 142 F.3d 988, 999 (7th Cir. 1998), but the view of the Ninth Circuit that "other matter" includes o nly physical objects like those enumerated in the statute is equall y reasonable. See United States v. Lacy , 119 F.3d at 748.
Both parties to the case maintain that the other's interpretatio n leads to absurdity. These arguments are unhelpful because neither interpretation can avoid absurd results. The court points out that interpreting "other matter" to mean a hard drive rather tha n
a file would be absurd because someone who possessed three books containing on e proscrib ed image each would be in violation of the statute, while someone wh o possesse d a hard drive containing hundreds of such images would not be. But th e court's interpretation also leads to an absurd result: Under the court's holding, someone who possessed three books containing one proscribed image each wou ld be in violation of the statute, while someone who possessed a computer file containing hundreds o f such images would not be. There is in fact no interpretation that can prevent evident incongruities: There is no question that a person w ho possessed a thousand-page book-15-

filled w ith images of child pornography would not be in violation of the statute

. Congress ensured such anomalies when it wrote the statute as it did.

T he other arguments that the parties advance on the meaning of "other matter" create an equally unresolvable battle of analogies. Is a hard drive like a book or a libr ary? Is it significant that computer files can be made into tangible objects b y printing, or is printing from files just like tearing pages from a book? These kinds of inquiries can only give rise to speculation about congre ssional intent, and to guesswork about which of two reasonable alternative constructions is the right one.
As the court itself poi nts out, moreover, the relevant legislative history "reveals no insight into what Congress intended the precise sc ope of 'other matter' to be." Once we have seized " 'every thing from which aid can b e derived' " and "can make 'no more than a guess as to wh at Congress intended,' " Reno v. Koray , 515 U.S. 50, 65 (1995), quot ing Smith v. United States , 508 U.S. 223, 239 (1993) (internal quotation mark s omitted), and Ladner v. United States , 358 U.S. 169, 178 (1958), resp ectively, our duty is to adopt the construction of the relevant statute that favors the defendants. Th e statutory language is grievously ambiguous, and, after looking to the arguments of the parties and the legislative history, we still can make "no more than a guess" as to which of two reasonableinterpretations would accomplish Congress's intention. The rule of lenity should therefo re apply, and I would thus reverse the judgment of the trial court.

A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.