* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### APR 7 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 99-6317
v. (W.D. Oklahoma) ERVIN E. SCHATT,

Defendant - Appellant. (D.C. No. CR-99-23-C)

ORDER AND JUDGMENT *

Before EBEL , ANDERSON , and MURPHY , Circuit Judges.

Ervin E. Schatt entered a conditional guilty plea t o receiving child pornography in violation of 18 U.S.C. § 2252(a)(2). He appeals the district court’s denial of his motion to dismiss the indictm ent, arguing that the child pornography he received had not been transported ininterstate commerce as required by § 2252(a)(2). We affirm.-2- BACKGROUND The relevant facts of this case are uncontroverted and arise from a United States Customs Service undercover operation in Loui siana, designed to identify and target consumers of child pornography. The Cus toms Service established an undercover Internet website that indicated that chi ld pornography was available from a company located outside the United States. Schatt responded to the website by e-mail, indicating his interest in obtai ning information about child pornography. The Customs Service then mailed a que stionnaire to Schatt’s home address in Oklahoma City, Oklahoma. Schatt returne d the questionnaire, on which he indicated his interest in child pornography and requested a catalog. After the catalog arrived, Schatt placed a mail ord er for two videotapes depicting children engaged in sexual activity, enclosing a ch eck for the purchase price of $85.00. The catalog stated that the videotapes wou ld not be sent through the U.S. mail. After receiving Schatt’s order and check, Customs S ervice agents in Louisiana sent the ordered videotapes via government courier to other Customs Service agents in Oklahoma City. A postal inspecto r disguised as a courier then made a controlled delivery of the videotapes to Sch att, who was then arrested. Schatt was subsequently indicted on counts of (1) knowingly receiving visual depictions of child pornography that were tr ansported in interstate-3-

commerce in violation of 18 U.S.C. § 2252(a)(2), an d (2) possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)( B). Schatt filed a motion to dismiss the indictment, arguing that the government ’s transportation of the videotapes from Louisiana to Oklahoma City did not constitute transportation in interstate commerce within the meaning of the statu te. After the district court denied Schatt’s motion to dismiss, Schatt entered aconditional plea of guilty to Count 1 in exchange for the Government’s dismissal of Count 2 at sentencing.

DISCUSSION We review de novo the district court’s legal concl usions and application of the law. United States v. Wood , 6 F.3d 692, 694 (10th Cir. 1993) (reviewing district court’s dismissal of indictment based on i ts review of the governing statute). At issue here is whether the uncontroverted evidence could, as a matter of law, establish a violation of 18 U.S.C. § 2252(a )(2), which provides criminal sanctions against any person who “knowingly receive s . . . any visual depiction [of child pornography] that has been mailed, or has been shipped or transported in interstate or foreign commerce.” 18 U.S.C. § 2252( a)(2). Schatt concedes that the videotapes he ordered and received contained ch ild pornography, and that they were transported from Louisiana to Oklahoma City. See Appellant’s Br. at 4. However, he argues that the government’s delivery o f the videotapes was neither1 Neither is this a case where “the federal officers themselves supplied the

interstate element and acted to ensure that an inte rstate element would be present.” See United States v. Archer , 486 F.2d 670, 682 (2d Cir. 1973). In this circuit, we have limited the applicability of Arche rto cases of virtual entrapment, see United States v. O’Connor , 635 F.2d 814, 817 (10th Cir. 1980), which has not been argued in either this court or the court below

. -4- “interstate,” as the final segment of the delivery from the Oklahoma City Customs office to his home did not cross state lines, nor “ commerce,” as the government is not in the business of commercial transportation. We disagree with both contentions. The evidence shows that Schatt knowingly ordered po rnographic videotapes from a source outside the state of Oklahoma. In re sponse to this order, the Customs Service sent two specific videotapes from L ouisiana to Oklahoma for delivery to Schatt. The fact that the tapes arrive d first at the Customs Office in Oklahoma City before being ultimately delivered to his home does not alter the interstate nature of the transportation. 1 Nor is the commercial nature of the purchase altered by the fact that the source of the videotapes was the federal government and not a bona fide pornographer. Schatt engaged in a commercial transaction when he ordered and submitted payment f or the videotapes; their resulting delivery from Louisiana to Oklahoma thus meets the requirement that2 In denying Schatt’s motion to dismiss, the districtcourt relied on our

decision in United States v. Esch , 832 F.2d 531 (10th Cir. 1987). We note that our holding today does not rest on Esch , as that case was decided under 18 U.S.C. § 2251. However, we may affirm a judgment on any l egal ground supported by the record. See Wolfgang v. Mid-America Motorsports, Inc. , 111 F.3d 1515, 1524 (10th Cir. 1997). -5- the material be “transported in interstate or forei gn commerce,” within the purview of 18 U.S.C. § 2552(a)(2). 2

CONCLUSION For the foregoing reasons, we AFFIRM the judgment o f the district court. ENTERED FOR THE COURT Stephen H. Anderson Circuit Judge