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, Colorado, for the appellant.

Kathleen M. Tafoya, Assistant United States Attorney (Linda A. McMahan,

United States Attorney, with her on the brief), Denver, Colorado, for the appellee.

Before PORFILIO, HENRY, and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.
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Defendant Michael Aaron Wilson appeals his conviction for possession of

three or more matters containing visual depictions of minors engaged in sexually

explicit conduct which were produced using materials shipped or transported in

interstate commerce, in violation of 18 U.S.C. § 2252(a)(4)(B) (1996). We

conclude the evidence presented at trial was insufficient to satisfy the

jurisdictional element of the charged crime, and reverse defendant’s conviction

and remand with directions to enter a judgment of acquittal.

I.

United States Customs Service agents arrested Brian Gillingham in Dayton,

Ohio, for possession of computerized child pornography. Gillingham cooperated

with agents and gave them information regarding Randy Taylor of Denver,

Colorado, with whom Gillingham had exchanged child pornography. Based upon

information provided by Gillingham and materials found in his apartment, agents

determined Randy Taylor was an alias used by defendant. Using an undercover

persona, special agent Don Daufenbach sent two letters to defendant alleging

Daufenbach was a collector of sadomasochistic child pornography involving boys. 

Daufenbach received two letters from defendant in which he expressed an interest

in the same type of child pornography. In one of the 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 computer. After they exchanged
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letters, Daufenbach contacted defendant through an Internet “chat room,” where

defendant again expressed an interest in sadomasochistic child pornography

involving boys. Ultimately, agents obtained and executed 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 computer 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 Colorado where, upon the government’s

motion, they were dismissed without prejudice. Defendant was reindicted in the

District of Colorado (Case No. 97-CR-313Z), and three superseding indictments

were subsequently filed against him (one of which was filed by the government in

the original dismissed case, i.e., Case No. 97-CR-505). The final indictment, a

stipulated amended superseding indictment, charged defendant with a single count

of possessing three or more matters (i.e., one computer hard drive and ten

computer diskettes) containing visual depictions (i.e., graphics files) of minors

engaging in sexually explicit conduct which were produced using materials that

had been mailed, shipped, or transported in interstate or foreign commerce, in

violation of 18 U.S.C. § 2252(a)(4)(B) (1996). A jury convicted defendant for
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possession of the diskettes, but not for possession of the hard drive, and he was

sentenced to a term of imprisonment of thirty months.

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 been mailed, shipped, or

transported in interstate or foreign commerce. Although defendant attempts to

couch this as a single issue, we conclude he has raised two related issues: (1)

proper interpretation of the term “materials,” as used in § 2252(a)(4)(B); and (2)

whether the evidence presented at trial was sufficient to establish the requisite

jurisdictional nexus.

Interpretation of § 2252(a)(4)(B)

Defendant was charged with violating 18 U.S.C. § 2252(a)(4)(B) (1996),

which provided that any person who

knowingly possesses 3 or more books, magazines, periodicals, films,

video tapes, or other matter which contain any visual depiction . . .

which was produced using materials which have been mailed or . . .

shipped or transported [in interstate or foreign commerce], 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 used in but not defined by the
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statute, refers to the “ingredients of an object--here, the ingredients or

components of a visual depiction.” Appellant’s Br. at 18. According to

defendant, this definition “precludes any contention that ‘materials’ includes

within its definitional scope tools or equipment or storage items (such as

computers or floppy disks) used to hold, mold, or manipulate ‘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.” Webster’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 without merit when the term

“materials” is viewed in isolation, we are obligated to “consider not only the bare

meaning of the word but also its placement and purpose in the statutory scheme.” 

Bailey , 516 U.S. at 145. The statute at issue here refers to “any visual depiction

. . . which was produced using materials which have” traveled in interstate or
1

 Although defendant has focused solely on the meaning of the term

“materials,” we believe the meaning of the term “produced” is also important to

resolution of this case. The term “producing” is defined by statute to “mean[]

producing, directing, manufacturing, issuing, publishing, or advertising.” 18

U.S.C. § 2256(3). Obviously, this definition, standing alone, is not particularly

enlightening. For further assistance, we turn to Webster’s, which defines

“produce” as “to give being, form, or shape to,” “to bring forth a product or

production: bear, make, or yield that which is according to nature or intention:

grow, make, or furnish economically valuable products.” Webster’s Third Int’l

Dictionary 1810 (1993).

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foreign commerce. In other words, the statute clearly refers to “materials” used to

produce a visual depiction. Necessarily, we believe, 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 part 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. Under defendant’s construction,

for example, a person in possession of a computer graphics file would be in

violation of the statute only if the bits of information 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 files copied from a computer

located in another state or country, via the Internet or a bulletin board service
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(BBS), would satisfy the jurisdictional nexus.

The broader definition we adopt today comports with that 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 possession of photographs he had

personally taken of two girls, ages fifteen and sixteen, in sexually suggestive

poses. Although the photographs themselves had never traveled in interstate

commerce, the jurisdictional nexus was satisfied because the jury found defendant

took the photographs using a Japanese camera that had been transported in

interstate or foreign commerce. Thus, the “materials” used to produce the

photographs were not confined to the “ingredients” of the photographs

themselves, but instead encompassed objects, including 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 camera and instant film

made in another state satisfied jurisdictional nexus).

Sufficiency of Evidence

Having defined the term “materials,” we next determine whether, applying

this definition, the evidence presented at trial was sufficient to support

defendant’s conviction. In other words, we must determine whether the evidence

presented at trial was sufficient to demonstrate the jurisdictional nexus for which
2

 At the time of indictment and trial, “visual depictions” were defined

under the statute, and in the court’s instructions, as “any form of image or picture,

including undeveloped film and videotape.” Supp. Vol. 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 be 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 that they cannot be

viewed as pornographic images until processed through the

appropriate equipment does not place them outside the definition of

“visual depiction” for purposes of the statute.

Id.

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defendant was indicted, i.e., that the visual depictions 2 contained on the diskettes

were produced using materials that traveled in interstate 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 based 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 record, we view

the evidence and the reasonable inferences to be drawn therefrom in a light most

favorable to the government, without weighing the evidence or considering the

credibility of witnesses. Id.; United States v. Haslip , 160 F.3d 649, 652-53 (10th
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Cir. 1998), cert. denied , 119 S. Ct. 1346 (1999). The evidence necessary to

support a verdict “need not conclusively exclude every other reasonable

hypothesis and need not negate all possibilities except guilt.” United States v.

Parrish , 925 F.2d 1293, 1297 (10th Cir. 1991) (citations omitted). 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, we note the prosecution’s

strategy at trial for proving the jurisdictional element was extremely vague. 

Giving the prosecution the benefit of the doubt, it appears its primary theory was

that the diskettes seized from defendant constituted both “matters” containing the

visual depictions and “materials” used to produce the visual depictions. This

theory, however, was not always clearly conveyed at trial. For example, during

trial, the prosecution argued to the district court that it was the “matter” rather

than the “materials” that needed to have traveled in interstate commerce. Supp.
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Vol. 8 at 437, 439, and 440. During closing arguments, 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 arguing to the jury:

The information, the little Xs and Os, 1’s and 0’s, electrical

impulses, were sitting on the hard drive, sitting on the disk, waiting

to be used. But they’re not produced into a picture 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 talking about.

Id. at 490-91. By way of this latter argument, the prosecution 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 theories, we focus first on

the theory that the diskettes were “materials” that traveled in interstate commerce

and were used to produce the visual depictions at issue (i.e., the graphics files). 

Although the evidence was uncontroverted that the diskettes at issue traveled in

interstate commerce, see Supp. Vol. 6 at 63 (no computer diskettes were

manufactured in the state of Colorado), there was an 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 investigator with the Colorado

Bureau of Investigation specializing in computer crime and high technology,

testified that images/pictures can be stored in one of several computerized formats
3

 During direct examination, the prosecution asked Davis to explain why a

computer graphics file was considered a “picture” or visual depiction, even

though it was a series of 1’s and 0’s unviewable (without 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 plastic 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 videocassette. 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 the average juror undoubtedly has

some familiarity with film and videocassettes, we are 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 determine how a computer

graphics file is created.

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(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 testified the bits of data are

organized in sets of eight or twenty-four, with each 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 special agent with the U.S.

Customs Service, testified similarly that a computer 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 computer graphics files can be

stored or contained on computer diskettes, their testimony did not support the

conclusion that computer diskettes are used to actually produce graphics files. To

the contrary, their testimony left unanswered the question of whether a computer
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graphics file is produced or created prior to being recorded on a particular storage

media, or whether, instead, it only comes into being 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 insufficient to allow a reasonable

juror to answer the question. Thus, we must determine whether the evidence

presented at trial was sufficient to support the jury’s verdict under any other

theory.

As previously noted, the prosecution offered an alternate theory during

closing arguments that the act of converting a computer 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 find it of no value here. As

previously noted, the stipulated amended superseding indictment narrowly

charged defendant with violating § 2252(a)(4)(B) by possessing 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. 
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Thus, the focal point of the statute’s jurisdictional 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, the 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 files, using a computer, viewing

software, and a monitor, because such viewing did not result in production of the

graphics files; instead, such production necessarily had to have occurred either at

or prior to the time the graphics files were recorded 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 either the visual depictions (in this

case the graphics files) or the materials used to produce the visual depictions must

have traveled in interstate commerce. If Congress had wanted the focus of the

jurisdictional element to be on the “matters” containing the visual depictions, it

would have said so.

Two other possible theories remain, neither of which was specifically

forwarded by the prosecution. At trial, Daufenbach testified 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 defendant downloaded these

images from the BBS, the evidence demonstrated (1) defendant was interested in

the specific type of child pornography portrayed in those visual depictions; (2) he

was computer literate; (3) he regularly used the computer 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 directly traceable to the BBS in

that they specifically contained the BBS’s name. Taken together, a jury could

rationally have concluded defendant, while residing in Colorado, used his

computer and downloaded those images from the BBS to diskette (rather than

receiving the diskettes from someone else who had downloaded them). Under this

theory, some of the “materials” used to produce the visual depictions found on the

diskettes, in particular the bits of data, necessarily would have traveled in

interstate commerce from California to Colorado via telephone line.

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we believe it would perhaps have been reasonable for the jury to infer defendant

used his computer and modem to download those images, 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 defendant was charged with

possessing three or more diskettes containing visual depictions, the fact that the

jurisdictional element was satisfied with respect to 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, however, as to how those

particular images found their way to the diskettes in defendant’s possession. Nor

did the prosecution otherwise attempt to outline the possible methods by which

defendant could have obtained the files through interstate commerce (e.g.,
5

 We offer the following example to demonstrate why Daufenbach’s

testimony could not, by itself, satisfy the jurisdictional element. Imagine a person

possesses a magazine and makes a color photocopy (copy #1) of one of the images

contained therein. Further imagine such person uses copy #1 to make a second

color photocopy (copy #2). Although the magazine would 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 defendant originated 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 insufficient to support the

conviction, it is unnecessary to address the remaining issue asserted on appeal.

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obtaining copies of the German magazines and scanning 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 having considered and

rejected all possible avenues for proving the jurisdictional 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.