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 Fed. R. Crim. P. 23(c) provides: “In a case tried without a jury, the court must find the

defendant guilty or not guilty. If a party requests before the finding of guilty or not guilty, the court must

state its specific findings of fact in open court or in a written decision or opinion.”

MEMORANDUM OF DECISION

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

_______________________________________)

UNITED STATES OF AMERICA, )

) No. CR05-433RSL

Plaintiff, ) 

v. ) MEMORANDUM OF DECISION

)

KENNETH L. GOUIN, )

)

Defendant. )

_______________________________________)

INTRODUCTION

This criminal case was heard by the Court in a bench trial commencing on March 17,

2008 and concluding on March 18, 2008. See Dkt. ##55, 57. On March 18, 2008, the Court

rendered its general finding that the defendant Kenneth L. Gouin (“defendant”) is guilty beyond

a reasonable doubt of the crime charged in the Indictment, one count of possession of child

pornography in violation of 18 U.S.C. §§ 2252(a)(4)(B). See Dkt. #12 (Indictment). On March

18, 2008, the Court also issued specific findings in open court, as requested by the government

under Fed. R. Crim. P. 23(c).1

 See Dkt. #56 (Government’s Trial Brief) at 18. A few days after

the Court’s May 18, 2008 decision, the government requested that the Court reduce the decision

to a written order. Therefore, this Memorandum of Decision incorporates the Court’s March 18,

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 18 U.S.C. § 2252(a)(4)(B) provides:

(a) Any person who . . . [4](B) knowingly possesses 1 or more books, magazines,

periodicals, films, videotapes, or other matter which contain any visual depiction that has

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

which was produced using materials which have been mailed or so shipped or transported,

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. 

3

 The Indictment charges that defendant “did knowingly and unlawfully possess visual depictions

of minors engaged in sexually explicit conduct, as that term is defined by Title 18, United States Code,

Section 2256, the production of which involved the use of minors engaging in sexually explicit conduct,

which images were transported and shipped in interstate and foreign commerce, and the images were of

such conduct.” Dkt. #12 at 1.

MEMORANDUM OF DECISION -2-

2008 findings of fact.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Under 18 U.S.C. § 2252(a)(4)(B),2

 the government must prove each of the following

elements beyond a reasonable doubt.3

 First, that the defendant knowingly possessed books,

magazines, periodicals, films, video tapes, or other matter which the defendant knew contained

visual depictions of minors engaged in sexually explicit conduct. Second, the defendant knew

the visual depictions contained in the books, magazines, periodicals, films, video tapes, or other

matter showed minors engaged in sexually explicit conduct. Third, the defendant knew that the

production of such visual depictions involved use of a minor in sexually explicit conduct. 

Fourth, that the visual depictions had been either (a) mailed, shipped, or transported in interstate

or foreign commerce, or (b) produced using material that had been mailed, shipped, or

transported in interstate or foreign commence by computer or other means. See Ninth Circuit

Model Criminal Jury Instruction 8.154 (Sexual Exploitation of Child – Possession of Child

Pornography (18 U.S.C. § 2252(a)(4)(B)). At trial, the defendant stipulated to the first three

elements. See Dkt. #59 (Trial Brief of Defendant) (“Mr. Gouin does not contest that he

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MEMORANDUM OF DECISION -3-

knowingly possessed matter containing visual depictions of minors engaged in sexually explicit

conduct, and will so stipulate for purposes of trial. The only element remaining at issue is

whether the government can prove beyond a reasonable doubt that the depictions were shipped

or transported in interstate or foreign commerce.”). 

Under 18 U.S.C. § 2256(5), “‘visual depiction’ includes undeveloped film and videotape,

and data stored on computer disk or by electronic means which is capable of conversion into a

visual image.” Referring back to § 2252(a)(4)(B), visual depictions may be found in film,

videotape and data stored on computer disk or by electronic means capable of being converted

into visual images. Visual depictions may also be found in books, magazines and periodicals,

which means more traditional pictures or hard copy pictures. Thus, the Court agrees with the

government’s position at trial that the use of the term “includes” in the definition of “visual

depiction” was meant to specify additional ways visual depictions exist, and not to limit the

definition just to computer stored or electronically stored data.

The Court finds that the defendant possessed both types of visual depictions—matters

that he printed out and stored in hard copy or obtained through other means, but kept in hard

copy, and held in a three-ring binder and expandable folder (see Exhibits 2 and 3), and matters

that he stored on hard drives, CDs, or floppy disks (see Exhibits 1, 4 - 6). 

The Court finds that the government presented uncontroverted evidence that the six series

of pictures depicting the sexual exploitation of minor children were records of the abuse of real

children of very young age who were sexually abused in six different states: Illinois, Missouri,

North Carolina, Pennsylvania, Idaho, and Texas. These pictures document those sexual assaults

and they traveled to the State of Washington where they became part of the defendant’s

collection of child pornography. This is the very definition of material that is “transported in

interstate commerce” under 18 U.S.C. § 2252(a)(4)(B). 

Assuming, for the sake of argument, the defendant possessed child pornography given to

him by a neighbor who was photographing the abuse of that neighbor’s child here in Washington

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MEMORANDUM OF DECISION -4-

State, there would be no evidence that this child pornography traveled in interstate commerce. 

Arguably, if the same images were sent by facsimile from one Washington household to another,

the government’s proof might be said to fall short. But in this case, with known victims whose

sexual exploitation occurred throughout six other states and whose documented sexual abuse

was sent out along the Internet, the Court finds that the Internet transmission of the visual

depictions at issue meets the statutory definition of “transported in interstate commerce.”

The defendant admitted he visited websites in search of child pornography and had been

doing so for years. Defendant focused on websites where children were engaged in sex acts

with adults, where the children were ages three through eight, mostly female, and as he told the

police, with some bondage involved. The defendant printed them and placed them in binders in

his bedroom. These are the pictures that comprise the “Cindy,” “Felisha,” “Jan-Feb,” “Misty,”

“Abby,” and “Hea-Heather” series of images. 

The Court finds that the testimony of Robert Young, the defense expert, is compelling

evidence of why the use of the Internet to transmit the visual depictions at issue is inherently

part of interstate commerce. Mr. Young made the same points that were made in the testimony

of the Comcast witness here, William Crews, and in the Third Circuit case of United States v.

MacEwan, 445 F.3d 237 (3d Cir. 2006), cert. denied, 127 S. Ct. 208 (2006). Id. at 241 (“He

stated that it was impossible to scientifically ascertain the exact path any specific request, at a

point in time would have done.”) (citation and quotation marks omitted). Mr. Young, along

with the other witnesses, make the point that it is impossible to tell which computer server

transmitted which images at any one time. And, the serendipity of saying one day that server

was in Washington, one day it was in Oregon or Virginia, or it might have traveled to any one of

several states at different times, makes the case for why it is totally consistent with the language

of § 2252(a)(4)(B) and the clear intent of Congress to follow the Third Circuit analysis in

MacEwan:

Regardless of the route taken, however, we conclude that because of the very

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MEMORANDUM OF DECISION -5-

interstate nature of Internet, once a user submits a connection request to a website

server or an image is transmitted from the website server back to the user, the data

has traveled in interstate commerce. Here, once the images of child pornography

left the website server and entered the complex global data transmission system

that is the Internet, the images were being transmitted in interstate commerce.

MacEwan, 445 F.3d at 244. 

The defendant urges the Court to follow the reasoning of United States v. Schaefer, 501

F.3d 1197 (10th Cir. 2007), in which the Tenth Circuit reversed a conviction after a bench trial,

like the one before the Court, where the defendant stipulated to all the elements of the charge

except for the interstate nature of the child pornography’s transmittal. See Dkt. #59 at 4. The

Tenth Circuit held that the use of the Internet “standing alone” does not satisfy the interstate

nexus in child pornography cases. Schaefer, 501 F.3d at 1198 (“Specifically, we conclude that

the government’s evidence concerning Mr. Schaefer’s use of the Internet, standing alone, was

not sufficient to establish that the child-pornography images at issue moved across state lines.”).

Although this Court believes the Ninth Circuit will follow the Third Circuit’s reasoning

in MacEwan and not the Tenth Circuit in this area, it is clear that the facts in this prosecution

provide far more evidence to support the interstate nexus than what was available in Schaefer. 

See, e.g., United States v. Sutcliffe, 505 F.3d 944, 953 (9th Cir. 2007) (quoting MacEwan).

In Schaefer, the prosecution never presented any evidence of where the child victims

were located when they were sexually abused and photographed. Id. at 1205 (“These

convictions cannot stand because the government failed to present sufficient evidence

concerning the movement of the child-pornography images across state lines.”). There was also

no evidence that Schaefer downloaded images via computer and placed them on the CDs found

in his home. Id. at 1199 (“[A]n investigating agent testified that he had no evidence Mr.

Schaefer downloaded images via computer and placed them on CDs found in his home.”).

Had the Schaefer court been presented with the breadth and depth of the evidence of

interstate transportation in this case, the Tenth Circuit would have had no difficulty in affirming

Schaefer’s conviction.

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MEMORANDUM OF DECISION -6-

Therefore, under any reading of 18 U.S.C. § 2252(a)(4)(B) and the indisputable factual

findings in this case, the Court is satisfied beyond any reasonable doubt that defendant is guilty

of the crime charged in the Indictment.

DATED this 24th day of April, 2008.

A

Robert S. Lasnik

United States District Judge 

Case 2:05-cr-00433-RSL Document 70 Filed 04/24/08 Page 6 of 6