The Honorable Richard H . Battey, United States District Judge for the District 1 of South Dakota. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-2000

___________ United States of America, * * Appellee, * * Appeal from the United States
v. * District Court for the District * of South Dakota. Gary Scott Whiting, * * Appellant.

___________

Submitted: October 22, 1998 Filed: January 19, 1999

___________ Before FAGG, ROSS, and BEAM, Circuit Judges.

___________ BEAM, Circuit Judge. Gary Scott Whiting appeals his conviction in district court for possession o f 1 child pornograp hy in violation of 18 U.S.C. § 2252(a)(4)(B). He asserts that pictures stored on computer disks were not proscribed by the law at the time he pos sessed them. We affirm.-2-

I. BACKGROUND
The pertinent facts are not in dispute. Whiting worked as an assistant fire chief and emerge ncy medical technician for the Piedmont fire department from 1993 unti l September 1996. Whiting used a computer at work and had access to the Internet from that co mputer. After Whiting left the fire department, employees discovered som e computer d isks next to the computer that Whiting had used. These disks containe d imag e files which, when viewed, depicted minors engaging in sexually explici t conduct. These disks were turned over to the Sheriff's department, who then turne d them over t o the FBI. The FBI also discovered a log kept by Whiting listing th e pictures he had, and those he wished to acquire. He was indicted in April 1997, fo r posses sion of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). H e entered a guilty plea conditioned on the challenges discuss ed below. As a factual basis for the guilty plea, Whiting admitted that in June 1996, he "knowingly possessed three

or more co mputer disks which contained visual depictions of minors engaging i n sexually explicit conduct," and that the images had been transported in interstat e commerce through the use of a computer.

18 U.S .C. § 2252(a)(4)(B) prohibits the knowing possession of "3 or mor e books , magazines, periodicals, films, video tapes, or other matter which contain an y visual depiction" of a minor engaged in explicit sexual conduct that has moved i n interstat e commerce. At the time of Whiting's admitted conduct, the definition o f "visual depiction" read in its entirety, "'visual depiction' includes undeveloped film and vide o tape." Former 18 U.S.C. § 2256(5) (1996). That definition was amended i n September 1996 by the Child Pornography Pre vention Act of 1996, to read as follows: "'visual depiction' includes undeveloped film and video tape, and data stored o n computer disk or by electronic means which is capable of conversion into a visua l image." 18 U.S.C. § 2256(5). This amendment gives rise to Whiting's appeal.18 U.S.C. § 2252(a)(4)(B) reads: 2 Any person w ho: (B) knowingly possesses 3 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction that has been mailed, or has been shipped or transported i n interst ate or foreign commerce, or which was produced using material s whichhave been mailed or so shipped or transported, by any mean s including by computer, if– (i) the producing of such visual depiction involves the us e 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.
-3- II. DISCUSSION

Whiting raises two basic challenges to his conviction. First, he claims that the appl ication of the amended definition to conduct that occurred before its enactmen t violates t he ex post facto clause of the Constitution. In the alternative, he argues that the law prior to the amendment was vague and that a con viction under the old statutory definition on these facts violates th e Due Process Clause of the Fifth Amendment. The distr ict court addressed and dismissed both of these contentions in an Order Denying Motion to Dismiss.
We review a district court's interpretation of federal statute s de novo. See Cedar Rapids Comm. Sch. Dist. v. Garret F. , 106 F.3d 822, 82 4 (8th Cir. 1997). The starting poi nt in interpreting a statute is always the language of the statute itself. See United 2 State s v. Talley , 16 F.3d 972, 975 (8th Cir. 1994). If the intent of Congress can b e clearly di scerned from the statute's language, the judicial inquiry must end. Se e Citicasters v. McCaskill , 89 F.3d 1350, 1354-55 (8th Cir. 1996).
Whiting's ex post facto argument hinges on his assertion that, prior to th e amendment, the term "visual depiction" did not encompass image data stored on-4-

computer disks, thus he could only be convicted by a retroac tive application of the new definition. We disagree. Evaluating the statute as a whole, it is clear that image s st ored on computer disks were prohibited by section 2252(a)(4)(B) prior to th e amendment. The change in the definition of "v isual depiction," for purposes of section 2252(a)(4)(B), was a mere clarification and did not change the substance of the law. The sta tute stated that "visual depiction" includes undeveloped film and video tape

. There i s no language of limitation in this definition, as there is in other definition s included in the same section ("minor" means any person under the age of eightee n years; "org anization" means . . . ; "producing" means . . . ). See former 18 U.S.C. § 2256. When a statute uses the word "include s" rather than "means" in defining a term, i t does not imply that items not listed fall outside the definition. See Highway & City Freight Drivers Local No. 600 v. Gordon Transports, Inc. , 576 F.2d 1285, 1289 (8th Cir. 1978). "Visual depictions" are not limited solely to undeveloped film and video tapes. To argue otherwise would be to argue that photographs are not considere d "visual depictions" because they are not expressly mentioned, which would b e nonsense. There is no indication that images electronically stored in binary form were excluded from the definition. Indeed, th ere is ample evidence that they were included. Section 2252 expressly prohibits the possession of visual depictions that have moved in interstate commerce, or are made using mater ials that have moved through interstate commerce, by any means including computer. It is clear that Congress considere d images stored as data to be "visual depictions" because Congress expressly included a mode of interstate transportation unique to computer data.
As shown by the inclusion of undeveloped film and video tape, the term "visual depictions" includes potential images as well as actual images, that is to say, image s that h ave already been produced, yet require additional processing to render the m viewable. 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 ima ges 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 theEv en prior to the amendment, the definition of "visual depiction" in sectio n 3 2256 was broad enough to include images contained in any storage and retrieval o r sto rage and viewing medium, whether computer-oriented or not. If the manner i n which an image is stored allows it to be processed in such a way as to create a viewable picture, then the stored image may be a "visual depiction" for purp oses of section 2256.
-5- appropriate equipment does no t place them outside the definition of "visual depiction" forpurpose s of the statute. See United States v. Lamb , 945 F. Supp. 441, 45 2 (N.D. N.Y. 1996). Similarly, the Seventh Circuit has held that computer images ar e equivalent to "visual depictions" for purposes of the Sentencing Guidelines. Se e United States v. Hall , 142 F.3d 988, 998 (7th Cir. 1998).
To accept Whiting's position would lead to the absurd conclusion tha t possession and viewing of computer image files depicting minors engaged in explicit sexua l act ivity is completely lawful, and that the statute is violated only when those image s are printed on paper or transferred to v ideo tape. An equally absurd conclusion would be that transportation of child porno graphy by computer is prohibited, but that transfer of electronic image data by comput er is not. The Ninth Circuit has recently addressed this very issue and, not surprisingly, arrived at the same conclusion. See United States v. Hockings , 129 F.3d 1069, 1071-72 (9th Cir. 1997) (absurd to fi nd that transportation by computer was outlawed, but that computer image files were not included within the definition of "visual depiction"). We find no merit in Whiting's contention that images stor ed in files on computer disks are not "visual depictions" for the purposes of th e statute prior to its amendment. 3

The pu rpose of laws prohibiting child pornography is not to police the moral s of the public, but to protect children from the injuries that accompany and flow from, sexual exp loitation, particularly the production and distribution of child pornography. See, e.g. , N ew York v. Ferber , 458 U.S. 747, 756-58 (1982). By defining "visua l depiction" to include undeveloped film and video tape, Congress expressed its intent to proscrib e the possession of child pornography in any form, thus deterring the harm-6-

accompanying its creation. See Hockings , 129 F.3d at 1071-72. "The visual imag e transported [or stored] in binary form starts and ends pornographically and that is what Congress seeks to prohibit." Id. at 1072. Whiting advances no reasons why images st ored on computer disks are less harmful, or how their creation has less impact o n children, than photographs stored in shoeboxes. Because we find that images stored

on co mputer disks were encompassed by the original definition of "visual depiction,"
we f ind there was no retroactive application of a new law, and that Whiting was no t disadvantaged by the amendment. See United States v. Larson , 110 F.3d 620, 627 n.8 (8th Cir. 1997); United States v. St. John , 92 F.3d 761, 763 (8th Cir. 1996).

In his du e process challenge, Whiting asserts that, even if images stored a s computer data were covered by the ori ginal definition of "visual depiction," the statute
was so vague that it did not give him fair notice that his conduct was unlawful, since computer disks were not expressly listed within the definition. A penal statute i s unconstitutionally vague if it does not define the offense well enough to let ordinary people know what is prohibited. See Kolender v. Lawson , 461 U.S. 352, 357 (1983). A lack of precision alone does not violate due process, but the Constitution require s that "the language conveys sufficiently definite warning as to the proscribed conduct when measured bycommon understanding and practices." Roth v. United States , 354 U.S. 476, 491 (1957) (c itation omitted). Vagueness challenges such as Whiting's, that do not inv olve First Amendment freedoms, must be examined in light of the facts o f the case at hand. See United States v. Mazurie , 419 U.S. 544, 550 (1975).
In this case, Whiting admits that he sought out imag es of child pornography. He downloa ded the images from the Internet through interstate commerce using a computer. He viewed them, stored them on disks, cataloged them, and made a list of others he wished to a cquire. Whiting admits the content of the images was in fact the very su bject matter precisely prohibited by the statute–minors engaged in "sexuall y explicit conduct" as defined in section 2256(2). And the statute expressly include s visual depictions that have been transported in interstate commerce via computer.-7-

Whiting merely argues that, after receivingthese admittedly prohibited images through i n terstate commerce via computer, the statute was vague as to whether possession of those images on co mputer disks was prohibited. This argument is without merit. We find the statute clearly provided notice that Whiting's conduct was prohibited. Th e content of the images was plainly covered by the statute, as was the interstat e tra nsportation of the images via computer. And though the definition in sectio n 2256(5) did not expressly include computer image files, it referred, in expansiv e language, to types of potential images which are the logical and functional equivalent of computer image files. We find that the statute gave more than sufficient notice to ordinary p eople that the images in question, stored on computer disks, were "visua l depictions" for purposes of section 2252(a)(4)(B).

III. CONCLUSION
The judgment of the district court is affirmed.
A true copy.

Attest:

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