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

### JUN 29 1999 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. MICHAEL AARON WILSON, Defendant-Appellant. No. 98-1323

APPEAL FROM UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. No. 97-CR-313-Z)
Raymond P. Moore, Assistant Federal Public Defender(Michael G. Katz, Federal Public Defender, with him on the brief), Denver, Co lorado, for the appellant. Kathleen M. Tafoya, Assistant United States Attorne y (Linda A. McMahan, United States Attorney, with her on the brief), Den ver, Colorado, for the appellee.

Before PORFILIO , HENRY, andBRISCOE , Circuit Judges.

BRISCOE , Circuit Judge.-2-

Defendant Michael Aaron Wilson appeals his convicti on for possession of three or more matters containing visual depictions of minors engaged in sexually explicit conduct which were produced using material s shipped or transported in interstate commerce, in violation of 18 U.S.C. § 22 52(a)(4)(B) (1996). We conclude the evidence presented at trial was insuff icient to satisfy the jurisdictional element of the charged crime, and re verse defendant’s conviction and remand with directions to enter a judgment of a cquittal.
I. United States Customs Service agents arrested BrianGillingham in Dayton, Ohio, for possession of computerized child pornography. Gillingham cooperated with agents and gave them information regarding Ran dy Taylor of Denver, Colorado, with whom Gillingham had exchanged child pornography. Based upon information provided by Gillingham and materials fo und in his apartment, agents determined Randy Taylor was an alias used by defend ant. Using an undercover persona, special agent Don Daufenbach sent two lett ers to defendant alleging Daufenbach was a collector of sadomasochistic childpornography involving boys. Daufenbach received two letters from defendant in w hich he expressed an interest in the same type of child pornography. In one of t he letters, defendant indicated he had a wide variety of computerized images he was willing to trade and he included a printout of graphics files on his comput er. After they exchanged-3-

letters, Daufenbach contacted defendant through an Internet “chat room,” where defendant again expressed an interest in sadomasoch istic child pornography involving boys. Ultimately, agents obtained and ex ecuted a search warrant for defendant’s residence. Defendant cooperated in the search by directing agents to areas of his computer hard drive, as well as comput er diskettes, containing child pornography. For reasons unclear from the record, defendant was initially indicted in the District of Utah on charges of violating 18 U.S.C. § 2252(a)(1) (sexual exploitation of a minor). These proceedings (Case No. 97-CR-505) were subsequently transferred to the District of Colorad o where, upon the government’s motion, they were dismissed without prejudice. Def endant was reindicted in the District of Colorado (Case No. 97-CR-313Z), and thr ee superseding indictments were subsequently filed against him (one of which w as filed by the government in the original dismissed case, i.e., Case No. 97-CR-5 05). The final indictment, a stipulated amended superseding indictment, charged defendant with a single count of possessing three or more matters (i.e., one comp uter hard drive and ten computer diskettes) containing visual depictions (i .e., graphics files) of minors engaging in sexually explicit conduct which were pr oduced using materials that had been mailed, shipped, or transported in interst ate or foreign commerce, in violation of 18 U.S.C. § 2252(a)(4)(B) (1996). A j ury convicted defendant for-4-

possession of the diskettes, but not for possessionof the hard drive, and he was sentenced to a term of imprisonment of thirty month s. II. Defendant contends the evidence presented at trial was insufficient to establish the jurisdictional element of the charged crime, i.e., that the visual depictions were produced using materials that had b een mailed, shipped, or transported in interstate or foreign commerce. Alt hough defendant attempts to couch this as a single issue, we conclude he has ra ised two related issues: (1) proper interpretation of the term “materials,” as u sed in § 2252(a)(4)(B); and (2) whether the evidence presented at trial was suffici ent to establish the requisite jurisdictional nexus. Interpretation of § 2252(a)(4)(B) Defendant was charged with violating 18 U.S.C. § 22 52(a)(4)(B) (1996), which provided that any person who knowingly possesses 3 or more books, magazines, per iodicals, films, video tapes, or other matter which contain any visu al depiction . . . which was produced using materials which have been mailed or . . . shipped or transported [in interstate or foreign co mmerce], by any means including by computer, if-- (i) the producing of such visual depiction involves the use of a minor 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. Defendant contends the term “materials,” which is u sed in but not defined by the-5-

statute, refers to the “ingredients of an object--h ere, the ingredients or components of a visual depiction.” Appellant’s Br. at 18. According to defendant, this definition “precludes any contentio n that ‘materials’ includes within its definitional scope tools or equipment orstorage items (such as computers or floppy disks) used to hold, mold, or m anipulate ‘materials’ into a visual depiction.” Id. We review the interpretation of a federal criminal statute de novo. United States v. Martin , 163 F.3d 1212, 1214 (10th Cir. 1998), cert. denied , 1999 WL 231032 (1999). In doing so, we begin, as we must, “with the language of the statute.” Bailey v. United States , 516 U.S. 137, 144 (1995). The word “materials,” as used in the statute at issue here, “must be given its ‘ordinary or natural’ meaning.” Id. at 145. The term “material” is defined in Webster ’s as “of, relating to, or consisting of matter.” Webste r’s Third New Int’l Dictionary 1392 (1993). In turn, the term “matter” is defined in Webster’s as “material substance of a particular kind or for a particular purpose.” Id. at 1394. Although defendant’s argument is not entirely witho ut merit when the term “materials” is viewed in isolation, we are obligate d to “consider not only the bare meaning of the word but also its placement and purp ose in the statutory scheme.” Bailey , 516 U.S. at 145. The statute at issue here refer s to “any visual depiction . . . which was produced using materials which have ” traveled in interstate or1 Although defendant has focused solely on the mean ing of the term

“materials,” we believe the meaning of the term “pr oduced” is also important to resolution of this case. The term “producing” is d efined by statute to “mean[] producing, directing, manufacturing, issuing, publi shing, or advertising.” 18 U.S.C. § 2256(3). Obviously, this definition, stan ding alone, is not particularly enlightening. For further assistance, we turn to W ebster’s, which defines “produce” as “to give being, form, or shape to,” “t o bring forth a product or production: bear, make, or yield that which is acco rding to nature or intention: grow, make, or furnish economically valuable produc ts.” Webster’s Third Int’l Dictionary 1810 (1993). -6- foreign commerce. In other words, the statute clea rly refers to “materials” used to produce a visual depiction. Necessarily, we believ e, this encompasses not only tangible matters that go into a visual depiction (i .e., that become an “ingredient” of the visual depiction), but also tangible matters that are used to give being, form or shape to, but that do not necessarily become a p art or “ingredient” of, the visual depiction. 1 In our view, defendant’s proposed construction of the term “materials” effectively ignores the context in which the word appears in the statute, and thereby unduly narrows the reach of the statute. U nder defendant’s construction, for example, a person in possession of a computer g raphics file would be in violation of the statute only if the bits of inform ation making up the file (i.e., the 1’s and 0’s) had at some point traveled in interstate or foreign commerce. Thus, under defendant’s interpretation, only graphics fil es copied from a computer located in another state or country, via the Intern et or a bulletin board service-7-

(BBS), would satisfy the jurisdictional nexus. The broader definition we adopt today comports withthat implicitly adopted by the First and Eighth Circuits. In United States v. Bausch , 140 F.3d 739 (8th Cir. 1998), cert. denied , 119 S. Ct. 806 (1999), defendant was convicted of violating § 2252(a)(4)(B) based upon his possess ion of photographs he had personally taken of two girls, ages fifteen and sixteen, in sexually suggestive poses. Although the photographs themselves had nev er traveled in interstate commerce, the jurisdictional nexus was satisfied be cause the jury found defendant took the photographs using a Japanese camera that h ad been transported in interstate or foreign commerce. Thus, the “materia ls” used to produce the photographs were not confined to the “ingredients” of the photographs themselves, but instead encompassed objects, includ ing the camera, that were determined to give form or shape to the photographs. See United States v. Robinson , 137 F.3d 652, 653-54 (1st Cir. 1998) (use of came ra and instant film made in another state satisfied jurisdictional nexu s). Sufficiency of Evidence Having defined the term “materials,” we next determ ine whether, applying this definition, the evidence presented at trial wa s sufficient to support defendant’s conviction. In other words, we must de termine whether the evidence presented at trial was sufficient to demonstrate th e jurisdictional nexus for which2 At the time of indictment and trial, “visual depi ctions” were defined

under the statute, and in the court’s instructions, as “any form of image or picture, including undeveloped film and videotape.” Supp. V ol. 1, Doc. 51, Instruction 17. The statute has since been amended and “visual depiction” is now defined as “includ[ing] 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). Under both definitions, the term“includes potential images as well as actual images, that is to say, images that have already been produced, yet require additional processing to render them viewable.” United States v. Whiting , 165 F.3d 631, 633 (8th Cir. 1999). In this regard, an image stored as data which can b e read by a computer is directly analogous to an image on video tape. They are both images stored as magnetic signals that require processing by the use of a machine in order to view them. The fact t hat they cannot be viewed as pornographic images until processed throu gh the appropriate equipment does not place them outside t he definition of “visual depiction” for purposes of the statute. Id. -8- defendant was indicted, i.e., that the visual depictions 2 contained on the diskettes were produced using materials that traveled in inte rstate or foreign commerce. Sufficiency of the evidence is a question of law reviewed de novo. United
States v. Carter , 130 F.3d 1432, 1439 (10th Cir. 1997), cert. denied , 118 S. Ct. 1856 (1998). We will not reverse a conviction base d upon insufficient evidence unless no rational trier of fact could have reached the disputed verdict. Id. ; see Jackson v. Virginia , 443 U.S. 307, 319 (1979). In reviewing the recor d, we view the evidence and the reasonable inferences to be dr awn therefrom in a light most favorable to the government, without weighing the e vidence or considering the credibility of witnesses. Id. ; United States v. Haslip , 160 F.3d 649, 652-53 (10th-9-

Cir. 1998), cert. denied , 119 S. Ct. 1346 (1999). The evidence necessary t o support a verdict “need not conclusively exclude ev ery other reasonable hypothesis and need not negate all possibilities except guilt.” United States v. Parrish , 925 F.2d 1293, 1297 (10th Cir. 1991) (citations o mitted). Instead, the evidence only has to “reasonably support the jury’s finding of guilt beyond a reasonable doubt.” Id. If, upon review of the evidence, we conclude the evidence presented was insufficient to sustain a conviction, retrial is barred. See Burks v. United States , 437 U.S. 1, 18 (1978); United States v. Dalton , 990 F.2d 1166, 1168 (10th Cir. 1993). A reversal for evidentiary insufficiency is tantamount to a declaration that the prosecution, given its single opportunity to muster its evidence, failed to prove its case beyond a reasonable doubt. Burks , 437 U.S. at
11-12. Before reviewing the evidence presented at trial, w e note the prosecution’s strategy at trial for proving the jurisdictional el ement was extremely vague. Giving the prosecution the benefit of the doubt, itappears its primary theory was that the diskettes seized from defendant constitute d both “matters” containing the visual depictions and “materials” used to produce the visual depictions. This theory, however, was not always clearly conveyed attrial. For example, during trial, the prosecution argued to the district courtthat it was the “matter” rather than the “materials” that needed to have traveled i n interstate commerce. Supp.-10-

Vol. 8 at 437, 439, and 440. During closing argume nts, the prosecution seemed to return to its original theory when it argued to the jury that it needed to decide “what is the material that produced these pictures.” Id. at 490. Again, however, the prosecution deviated from this theory by arguin g to the jury: The information, the little Xs and Os, 1’s and 0’s, electrical impulses, were sitting on the hard drive, sitting o n the disk, waiting to be used. But they’re not produced into a pictur e until they’re called forth. They’re called forth from the disk, and they’re called forth on the computer. And that’s what we’re talki ng about. Id. at 490-91. By way of this latter argument, the pr osecution seemed to be arguing it was the act of calling images up on the computer monitor that constituted “production” of a visual depiction. Having outlined the prosecution’s ever-shifting the ories, we focus first on the theory that the diskettes were “materials” thattraveled in interstate commerce and were used to produce the visual depictions at i ssue (i.e., the graphics files). Although the evidence was uncontroverted that the d iskettes at issue traveled in interstate commerce, see Supp. Vol. 6 at 63 (no computer diskettes were manufactured in the state of Colorado), there was a n alarming lack of proof that the diskettes were used to actually produce the graphics files. The government’s main expert witness, Charles Davis, a criminal inve stigator with the Colorado Bureau of Investigation specializing in computer cr ime and high technology, testified that images/pictures can be stored in one of several computerized formats3 During direct examination, the prosecution asked Davis to explain why a

computer graphics file was considered a “picture” o r visual depiction, even though it was a series of 1’s and 0’s unviewable (w ithout extra measures) to the naked eye. In particular, the prosecution asked Davis to “compare [a graphics file] to a [roll] of film.” Supp. App. 7 at 306. Davis testified that the bits of data in a computer graphics file “are the same thing as the [dye] or the photosensitive chemicals on . . . film,” and that “the little plas tic inside a floppy disk [i.e., the piece of Mylar]” was like “the film itself.” Id. at 306-07. Davis also analogized a graphics file on a diskette to an image on a vide ocassette. To the extent the government intended to rely on this testimony to explain how a graphics file was created, we reject it as insufficient. Although th e average juror undoubtedly has some familiarity with film and videocassettes, we a re not convinced he or she is sufficiently knowledgeable in how visual images are created on those types of media to make the necessary inferential leap and de termine how a computer graphics file is created. -11- (e.g., GIF, JPG, BIC), all of which are composed of bits of data (1’s and 0’s). Supp. Vol. 7 at 263-64. More specifically, Davis t estified the bits of data are organized in sets of eight or twenty-four, with eac h set defining a specific pixel and the total number of pixels representing the entire image. Id. at 318-19. The government’s other expert witness, Daufenbach, a sp ecial agent with the U.S. Customs Service, testified similarly that a compute r graphics file is comprised of a series of charged and uncharged bits. Supp. Vol. 6 at 178-79. Neither witness, however, specifically explained how a computer graphics file is created. 3 Thus, although their testimony firmly established that co mputer graphics files can be stored or contained on computer diskettes, their te stimony did not support the conclusion that computer diskettes are used to actu ally produce graphics files. To the contrary, their testimony left unanswered the q uestion of whether a computer-12-

graphics file is produced or created prior to being recorded on a particular storage media, or whether, instead, it only comes into bein g at or after the point it is recorded on the storage media. Although we have no doubt this question has an answer (and thus do not foreclose the possibility that a diskette is a “material” used to produce a graphics file contained thereon), we conclude the evidence produced by the government in this case was insuffi cient to allow a reasonable juror to answer the question. Thus, we must determ ine whether the evidence presented at trial was sufficient to support the ju ry’s verdict under any other theory. As previously noted, the prosecution offered an alt ernate theory during closing arguments that the act of converting a comp uter graphics file stored on a diskette into a visual image on a computer monitor could constitute “production” of a visual depiction for purposes of the statute. Without foreclosing application of this theory under different circumstances, we fi nd it of no value here. As previously noted, the stipulated amended supersedin g indictment narrowly charged defendant with violating § 2252(a)(4)(B) bypossessing three or more computer diskettes that contained visual depictions , i.e., computer graphics files. Under § 2252(a)(4)(B), a computer graphics file is considered a “visual depiction” as it resides on a computer diskette in binary form; no act of viewing the file with software and a monitor is necessary. See Whiting , 165 F.3d at 633.-13-

Thus, the focal point of the statute’s jurisdiction al element, as applied to the circumstances of this case, is whether the graphics files were produced using materials that traveled in interstate commerce. In other words, in determining whether the jurisdictional element is satisfied, th e statute requires us to focus on the graphics files as they reside or are contained on the diskettes, and to determine what materials went into producing those files. It is irrelevant that defendant may have actually viewed the graphics fil es, using a computer, viewing software, and a monitor, because such viewing did n ot result in production of the graphics files; instead, such production necessaril y had to have occurred either at or prior to the time the graphics files were record ed on the diskettes. We also find untenable the prosecution’s theory that only the “matter” must have traveled in interstate commerce. In our view, the language of § 2252(a)(4)(B) makes it abundantly clear that eith er the visual depictions (in this case the graphics files) or the materials used to p roduce the visual depictions must have traveled in interstate commerce. If Congress had wanted the focus of the jurisdictional element to be on the “matters” conta ining the visual depictions, it would have said so. Two other possible theories remain, neither of whic h was specifically forwarded by the prosecution. At trial, Daufenbachtestified that some of the images at issue originated from a BBS in California . In light of this testimony,4 Although there was no direct evidence that defend ant downloaded these

images from the BBS, the evidence demonstrated (1) defendant was interested in the specific type of child pornography portrayed inthose visual depictions; (2) he was computer literate; (3) he regularly used the co mputer to view such depictions and to communicate with other persons regarding his sexual interests; and (4) many of the pictures found on the diskettes were di rectly traceable to the BBS in that they specifically contained the BBS’s name. T aken together, a jury could rationally have concluded defendant, while residing in Colorado, used his computer and downloaded those images from the BBS t o diskette (rather than receiving the diskettes from someone else who had d ownloaded them). Under this theory, some of the “materials” used to produce the visual depictions found on the diskettes, in particular the bits of data, necessar ily would have traveled in interstate commerce from California to Colorado viatelephone line. -14- we believe it would perhaps have been reasonable fo r the jury to infer defendant used his computer and modem to download those image s, via telephone line, directly from the BBS onto a diskette (in the form of graphics files). 4 The problem, however, is that only one of the diskettes seized by authorities contained images originating from the BBS. Because defendantwas charged with possessing three or more diskettes containing visua l depictions, the fact that the jurisdictional element was satisfied with respect t o one diskette was not sufficient to support defendant’s conviction. Daufenbach also testified that some of the images at issue originated from German magazines. He offered no explanation, howev er, as to how those particular images found their way to the diskettes in defendant’s possession. Nor did the prosecution otherwise attempt to outline th e possible methods by which defendant could have obtained the files through int erstate commerce (e.g.,5 We offer the following example to demonstrate whyDaufenbach’s

testimony could not, by itself, satisfy the jurisdi ctional element. Imagine a person possesses a magazine and makes a color photocopy (c opy #1) of one of the images contained therein. Further imagine such person use s copy #1 to make a second color photocopy (copy #2). Although the magazine w ould be a “material” used to produce copy #1, it would not be a “material” used to produce copy #2. Thus, the fact that some of the images possessed by defendantoriginated at some point in German magazines does not demonstrate, without more , that the German magazines were actually “materials” used to produce the images possessed by defendant.

6 Because we conclude the evidence was insufficientto support the conviction, it is unnecessary to address the remain ing issue asserted on appeal. -15- obtaining copies of the German magazines and scanni ng the images into his computer; downloading copies of the images from an out-of-state computer via the Internet or a BBS, etc.). We therefore reject the possibility that Daufenbach’s testimony regarding the origination of the images, standing alone, was sufficient to satisfy the jurisdictional element. 5 Having carefully examined the trial record and havi ng considered and rejected all possible avenues for proving the juris dictional element, we are forced to conclude the evidence was insufficient to support defendant’s conviction. 6
Defendant’s conviction is REVERSED and this case is REMANDED to the district court for entry of a judgment of acquittal

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