In the

United States Court of Appeals

For the Seventh Circuit

No. 08-1953

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

PAUL KINCAID,

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of Illinois.

No. 3:06-CR-30073-JES-BCG-1—Jeanne E. Scott, Judge.

ARGUED JANUARY 7, 2009—DECIDED JULY 6, 2009

Before POSNER, RIPPLE and ROVNER, Circuit Judges.

RIPPLE, Circuit Judge. After a bench trial, Paul Kincaid

was convicted of one count of producing child pornography, in violation of 18 U.S.C. § 2251(a), and one count

of possessing child pornography, in violation of 18 U.S.C.

§ 2252A(a)(5)(B). The district court sentenced him to 360

months’ imprisonment. Mr. Kincaid now appeals his

conviction. For the reasons set forth in the following

opinion, we affirm the judgment of the district court.
2 No. 08-1953

The facts, as recounted in this section, are taken from the 1

stipulations submitted to the court by the parties.

I

BACKGROUND

A. Facts

In August 2006, police in Litchfield, Illinois, began

investigating Mr. Kincaid for possible possession and

production of child pornography. With the cooperation 1

of a woman who previously had been photographed by

Mr. Kincaid, police were able to discover the identity of

one of Mr. Kincaid’s victims. During an interview, this

young man informed law enforcement officials that,

when he was twelve years old, Mr. Kincaid had promised

“to give him money if he would do ‘something’ for him

[Kincaid].” R.31 at 3. The young man agreed, and, on

several occasions, Mr. Kincaid took sexually explicit

pictures of him and also engaged him in sexual activity.

Based on this interview, and other information obtained from cooperating witnesses, the authorities

secured a warrant to search Mr. Kincaid’s residence,

which was executed on September 6, 2006. When

presented with the warrant, Mr. Kincaid agreed to

speak with the officers and accompanied them to the

Litchfield Municipal Center, where Mr. Kincaid was

interviewed.

During the interview, Mr. Kincaid explained “that he

was a homosexual and that members of the community,

especially minor children, would often approach him to
No. 08-1953 3

discuss sexual matters.” Id. at 9. Mr. Kincaid also

informed the officers that, “during these conversations,

minor males would occasionally ask him for oral sex

and . . . he would comply with those requests.” Id.

Mr. Kincaid informed the interviewing officers that “he

had taken and preserved pictures of minor males naked

and while engaged in sex acts.” Id. Mr. Kincaid agreed

to accompany officers to his residence to locate these

pictures. Mr. Kincaid explained that he had created child

pornography and engaged in sexual contact with

minors over a five-decade period. Mr. Kincaid specifically

admitted: (1) to maintaining a long-term sexual relationship with one minor male that began when the minor

was fourteen, (2) to engaging in oral sex with another

minor male on approximately ten occasions and

(3) to paying another minor male five dollars in exchange for showing Mr. Kincaid his genitals. Mr. Kincaid

further admitted to having “a problem with teenage

addiction—an obsessive attraction to boys 13-18.” Id.

at 10 (internal quotation marks omitted).

The search of Mr. Kincaid’s home, conducted with his

cooperation, “resulted in the recovery of hundreds of

images of child pornography.” Id. at 11-12. All of these

images were taken using Polaroid camera equipment.

Follow-up research revealed that the Polaroid camera,

which Mr. Kincaid had used for the last eight years, was

manufactured in China. Furthermore, at least some of

the film that Mr. Kincaid used to photograph his

victims was manufactured in the Netherlands. 
4 No. 08-1953

18 U.S.C. § 2251(a) provides: 2

Any person who employs, uses, persuades, induces, entices,

or coerces any minor to engage in, or who has a minor assist

any other person to engage in, or who transports any

minor in or affecting interstate or foreign commerce, or in

any Territory or Possession of the United States, with the

intent that such minor engage in, any sexually explicit

conduct for the purpose of producing any visual depiction

of such conduct or for the purpose of transmitting a live

visual depiction of such conduct, shall be punished as

provided under subsection (e), if such person knows or

has reason to know that such visual depiction will be

transported or transmitted using any means or facility of

interstate or foreign commerce or in or affecting interstate

or foreign commerce or mailed, if that visual depiction

was produced or transmitted using materials that have

been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means, including by

computer, or if such visual depiction has actually been

transported or transmitted using any means or facility of

interstate or foreign commerce or in or affecting interstate

or foreign commerce or mailed.

18 U.S.C. § 2252A(a) provides in relevant part: 3

(continued...)

 B. District Court Proceedings

On October 4, 2006, a grand jury charged Mr. Kincaid

in a two-count indictment with the production of child

pornography in violation of 18 U.S.C. § 2251(a)2

and possession of child pornography in violation

of 18 U.S.C. § 2252A(a)(5)(B). The indictment charged 3
No. 08-1953 5

(...continued) 3

(a) Any person who— . . .

(5) either— . . .

(B) knowingly possesses, or knowingly accesses with

intent to view, any book, magazine, periodical, film,

videotape, computer disk, or any other material that

contains an image of child pornography that has been

mailed, or shipped or transported using any means or

facility of interstate or foreign commerce or in or

affecting interstate or foreign commerce by any means,

including by computer, or that was produced using

materials that have been mailed, or shipped or transported in or affecting interstate or foreign commerce by

any means, including by computer; . . .

shall be punished as provided in subsection (b).

that Mr. Kincaid produced the pornographic photographs:

knowing or having reason to know that such visual

depictions would be transported in interstate and

foreign commerce and mailed, and said visual depictions having been produced using materials that had

been mailed, shipped, and transported in interstate

and foreign commerce by any means, including by

computer, and said visual depictions having actually

been transported in interstate and foreign commerce

and mailed.

R.11 (emphasis added). Count Two alleged that

Mr. Kincaid possessed pornographic materials,

which had been mailed and shipped and transported

in interstate and foreign commerce, including by

computer, and that were produced using materials
6 No. 08-1953

that had been mailed and shipped and transported in

interstate and foreign commerce, including by computer.

Id. (emphasis added).

After his arraignment, Mr. Kincaid filed several pretrial

motions including a motion to dismiss the indictment

for failure to establish “the jurisdictional element,” i.e., a

sufficient connection to interstate commerce to confer

federal jurisdiction under the Commerce Clause. See R.24

at 1. Mr. Kincaid’s motion claimed that the only apparent basis for federal jurisdiction was “the fact that a

single Polaroid camera recovered from the Defendant,

and alleged to have been employed by the Defendant to

create visual depictions for his own arousal, was

produced in China.” R.24 at 4. Mr. Kincaid maintained

that for this camera “to constitute the sole crux for the

federalization of the crimes charged call[ed] into question

fundamental principles of Federalism and Comity, and

constitut[ed] such an attenuated nexus with interstate

commerce that would likely leave . . . [the] Founding

Fathers ill at ease, to say the least.” Id. at 5.

Subsequently, Mr. Kincaid and the Government

entered plea negotiations. At a hearing on June 27, 2007,

Mr. Kincaid waived his right to a jury trial, and the

parties agreed to a bench trial on the stipulated facts

detailed above. Mr. Kincaid’s Waiver of Jury Trial and

Stipulations for Bench Trial included the following statement:

2. As stated in open court, it is the intent of the

parties that the defendant desires to waive his right
No. 08-1953 7

to a trial by jury and proceed to a bench trial on only

two issues. The first issue, relevant to Count One, is

whether the child pornography produced by the

defendant was produced using material that had

been mailed, shipped, or transported in interstate or

foreign commerce by any means. The second issue,

relevant to Count Two, is whether the child pornography knowingly possessed by the defendant was

produced using materials that had been mailed, or

shipped or transported in interstate or foreign commerce by any means.

R.31 at 1-2 (emphasis added). During the hearing, the

court confirmed that Mr. Kincaid was “reserving as set

forth in the stipulation only two issues.” Transcript of

June 27, 2007 Hearing at 18. The court further confirmed

that Mr. Kincaid understood the import of the stipulations and that he had agreed to the stipulations

knowingly and voluntarily. See id. at 18-20.

Before the close of the hearing, Mr. Kincaid’s counsel

asked to withdraw all pending motions including the

motion to dismiss on jurisdictional grounds. Id. at 25.

The district court then engaged in the following colloquy

with Mr. Kincaid:

THE COURT: All right. Mr. Kincaid, do you understand that the motions your

attorneys filed previously are being withdrawn, so they won’t be

ruled upon because you’ve reached

this stipulation?

MR. KINCAID: Yes, Your Honor.
8 No. 08-1953

THE COURT: You understand that?

MR. KINCAID: Yes, Your Honor.

THE COURT: And is that agreeable with you?

MR. KINCAID: Yes, Your Honor.

THE COURT: Okay. All pending motions are

withdrawn. . . .

Id.

Based on the parties’ stipulations, the court found

Mr. Kincaid guilty on both counts of the indictment and

subsequently sentenced him to 360 months’ imprisonment. Mr. Kincaid timely appealed.

II

ANALYSIS

On appeal, Mr. Kincaid challenges two aspects of his

conviction. First, he raises a constitutional challenge to

his convictions, namely that his crimes bear an insufficient nexus to interstate commerce to support federal

jurisdiction under the Commerce Clause. Second, he

maintains that the indictment did not apprise him adequately of the allegations against him. 

A. Interstate Commerce Challenge

Before we address the merits of Mr. Kincaid’s Commerce

Clause challenge, we first must consider the Government’s argument that this challenge has been waived.
No. 08-1953 9

Mr. Kincaid maintains, however, that the constitutional

issue is “jurisdictional,” and, therefore, not subject to

waiver. We disagree.

1.

At one time, there was support in our case law for the

proposition that a challenge to a statute on Commerce

Clause grounds, such as the one made by Mr. Kincaid here,

should be characterized as a challenge to the court’s

jurisdiction. In United States v. Stillwell, 900 F.2d 1104 (7th

Cir. 1990), the defendants challenged their convictions

under the federal arson statute, 18 U.S.C. § 844(i), on

several grounds, including that: (1) “their convictions

should be reversed because [a] private residence did not

satisfy the arson statute’s requirement that the building

subject to the arson be ‘used in [an] . . . activity affecting

interstate . . . commerce,’ ” and (2) “if Congress did

intend the federal arson statute to reach a private

residence such as Stillwell’s, then Congress exceeded its

power under the commerce clause.” Id. at 1106. The

Government claimed that the second argument had

been waived for failure to raise the issue in the district

court. We disagreed and explained accordingly:

While we agree that defendants did not raise this issue

at the district court level, defendants may raise this

issue on appeal because it is jurisdictional. If the

application of § 844(i) to defendants exceeds Congress’

power under the commerce clause, the district court

could not exercise jurisdiction over the subject-matter

contained in Count One . . . . Lack of subject-matter
10 No. 08-1953

jurisdiction, whether through statutory interpretation or constitutional prescription, is never waived.

Id. at 1110 n.2. 

However, we revisited Stillwell a few years later in

United States v. Martin, 147 F.3d 529 (7th Cir. 1998). In

Martin, which involved a similar interstate commerce

question, we “acknowledge[d] that the language in footnote 2 of Stillwell is mistaken.” Id. at 532. We explained:

In Stillwell, the defendants had stipulated to certain

facts regarding the house’s connections to interstate

commerce, but argued on appeal that the connections to which they had stipulated did not satisfy the

interstate commerce element of the statute. The defendants in Stillwell, then, essentially argued that the

indictment failed to state an offense. This argument

was not presented to the district court but the defendants claimed that it might be raised for the first time

on appeal. Today we explain by way of clarification

that review by this court for plain error was appropriate in that case despite the defendants’ failure to

raise the argument on appeal. See Fed. R. Crim. P.

52(b); see also United States v. Quintanilla, 2 F.3d 1469,

1476-77 (7th Cir. 1993). A challenge to the indictment

based on the adequacy of the interstate commerce stipulation had no relation to subject matter jurisdiction—the

power to adjudicate—but instead went only to an alleged

failure of proof. See Bell v. Hood, 327 U.S. 678, 680 (1946);

see also Turner/Ozanne v. Hyman/Power, 111 F.3d 1312,

1316-17 (7th Cir. 1997) (“Jurisdiction under the federal question statute is not defeated by the possibility
No. 08-1953 11

that the averments, upon close examination, might

be determined not to state a cause of action.”).

Id. (emphasis added; parallel citations omitted). Recently,

in United States v. Lacey, No. 08-2515, 2009 WL 1635382

(7th Cir. June 12, 2009), we affirmed the vitality of our

decision in Martin:

[C]ontrary to Lacey’s contention, his attack on the

evidence supporting the jurisdictional element of his

§ 2252A(a)(5)(B) conviction is not that type of jurisdictional challenge. A “jurisdictional element” is

simply an element of a federal crime. It is jurisdictional

“only in the shorthand sense that without that [interstate commerce] nexus, there can be no federal

crime. . . . It is not jurisdictional in the sense that it

affects a court’s subject matter jurisdiction, i.e., a

court’s constitutional or statutory power to

adjudicate a case, here authorized by 18 U.S.C. § 3231.”

United States v. Martin, 147 F.3d 529, 532 (7th Cir. 1998)

(internal citation omitted).

Lacey, 2009 WL 1635382, at *3. See generally Wisconsin Valley

Improvement Co. v. United States, No. 08-4300, slip op. at 4-5

(7th Cir. June 22, 2009) (discussing the misuse of the

term “jurisdictional” to describe any mandatory rule).

Following our decisions in Martin and Lacey, therefore,

Mr. Kincaid’s claim that his crime bears an insufficient

nexus to interstate commerce is not a “jurisdictional” one.

Because it is not “jurisdictional” in nature, it may be

waived. 
12 No. 08-1953

2.

Having determined that the issue of the interstate

nexus is not jurisdictional, we must turn to the question

whether Mr. Kincaid, in fact, waived this argument

before the district court.

The Supreme Court has explained, and we have echoed

on numerous occasions, that “[w]aiver is different from

forfeiture. Whereas forfeiture is the failure to make the

timely assertion of a right, waiver is the ‘intentional

relinquishment or abandonment of a known right.’ ”

United States v. Olano, 507 U.S. 725, 733 (1993) (quoting

Johnson v. Zerbst, 304 U.S. 458, 464 (1938)); accord United

States v. Cooper, 243 F.3d 411, 415 (7th Cir. 2001). Thus, we

have held that a defendant waived his right to challenge

a sentencing calculation by initially objecting to the

calculation, but later withdrawing the objection. See

United States v. Sensmeier, 361 F.3d 982, 986 (7th Cir. 2004).

Similarly, in Cooper, we held that a defendant had waived

his right to challenge the admissibility of the evidence

when defense counsel withdrew a motion in limine,

stated he did not have any objection to the admission of

the evidence and referred to the evidence during the

course of trial. See Cooper, 243 F.3d at 416.

The Fifth Circuit has held, under circumstances strikingly similar to those presented here, that a withdrawal

of a motion challenging the sufficiency of an indictment

constitutes a waiver. In United States v. Davis, 306 F. App’x

102 (5th Cir. 2009), a defendant convicted of attempted

production of child pornography under 18 U.S.C. § 2251(a)

appealed his conviction. While in the district court, the
No. 08-1953 13

defendant had filed a motion to dismiss the indictment;

specifically, the motion challenged the court’s “lack of

jurisdiction because 18 U.S.C. § 2251(a) is unconstitutional under the Commerce Clause.” Id. at 104. On the

first day of trial, defense counsel advised the district

court that the parties had entered a stipulation regarding the interstate commerce aspect of the offense

and that the defendant was withdrawing his motion to

dismiss. However, on appeal, the defendant attempted

to challenge the district court’s denial of the motion. The

Fifth Circuit held that the issue had been waived: “Because

Davis raised this issue in the district court and subsequently withdrew the motion raising the issue, Davis

waived this issue, and it is unreviewable.” Id.

In the present case, the argument for waiver is even

more compelling. In the “Waiver of Jury Trial and Stipulations for Bench Trial” that Mr. Kincaid filed with the

district court, he clearly indicated that there were only

two issues left for the court’s consideration—whether

the means of producing the child pornography in both

Count One and Count Two of the indictment had

traveled in interstate commerce. Furthermore, during the

June 27, 2008 hearing, both Mr. Kincaid and his counsel

confirmed to the court that these were the only issues

for the court’s consideration. Finally, Mr. Kincaid’s

counsel explicitly withdrew his constitutional challenge

to the indictment, and Mr. Kincaid stated in court that

he both agreed with, and understood the ramifications of,

counsel’s withdrawal of the motion. All of these actions

establish that Mr. Kincaid was aware that he could challenge the constitutionality of the indictment on Com-
14 No. 08-1953

Mr. Kincaid responds that, regardless of his or his counsel’s 4

actions before the court, the district court addressed the constitutional issue, and, therefore, this court also may resolve the

issue. Although the district court did determine that the factual

requisites for violations of the statutes had been shown by

the stipulated facts, nowhere in its opinion did the district court

raise, address or resolve the constitutional complaint that

Mr. Kincaid now lodges. 

merce Clause grounds and that he made a conscious

decision not to press that argument. Because Mr. Kincaid

intentionally relinquished this known right, he has

waived his right to challenge the constitutionality of the

indictment in this court.4

B. Sufficiency of the Indictment

Mr. Kincaid next submits that the indictment was

defective. Mr. Kincaid’s argument focuses on the fact that,

with respect to the interstate commerce element of the

offense, the statutes are worded in the disjunctive, but

the counts of the indictment are worded in the conjunctive.

For example, an individual violates 18 U.S.C. § 2251(a)

if the individual has produced child pornography and if

one of the following interstate commerce connections are

proven: (1) “such person knows . . . that such visual

depiction will be transported or transmitted using any

means or facility of interstate or foreign commerce . . . or

mailed,” (2) the “visual depiction was produced or transmitted using materials that have been mailed, shipped, or

transported in or affecting interstate or foreign com-
No. 08-1953 15

Similarly, the language of Count Two is set forth in the 5

conjunctive, but the statute that is the basis for the indictment,

18 U.S.C. § 2252A(a)(5)(B), is set forth in the disjunctive.

merce by any means, including by computer,” or (3) “such

visual depiction has actually been transported or transmitted using any means or facility of interstate or

foreign commerce or in or affecting interstate or foreign

commerce or mailed.” 18 U.S.C. § 2251(a). By contrast,

Count One of the indictment charged the interstate commerce elements in the conjunctive:

On or about September 2004, . . .

PAUL KINCAID

knowingly employed, used, persuaded, induced,

enticed and coerced a person under the age of eighteen

years, to engage in sexually explicit conduct . . . for the

purpose of producing visual depictions of such conduct, knowing or having reason to know that such

visual depictions would be transported in interstate

and foreign commerce and mailed, and said visual

depictions having been produced using materials that

had been mailed, shipped, and transported in interstate and foreign commerce by any means, including

by computer, and said visual depictions having actually been transported in interstate and foreign commerce and mailed.

All in violation of title 18 United States Code,

Section 2251(a).

R.11 at 1 (emphasis added). According to Mr. Kincaid, the 5

phrasing of the indictment lulled him into believing that
16 No. 08-1953

the Government could not convict him of the charged

offense unless it proved all three of the interstate commerce elements. He claims that, “[b]ecause of these

flaws in the indictment, [he] was not put on notice of the

crimes charged and was prejudiced in preparing his

defense.” Appellant’s Br. 21.

Mr. Kincaid’s argument is without merit. “The general

rule is that when a jury returns a guilty verdict on an

indictment charging several acts in the conjunctive, . . . the

verdict stands if the evidence is sufficient with respect

to any one of the acts charged.” United States v. Turner,

396 U.S. 398, 420 (1970). We consistently have applied

Turner in this circuit and have rejected claims of error

based on the use of the conjunctive in charging documents. See United States v. Cox, 536 F.3d 723, 726-27 (7th Cir.

2008) (“We have held that ‘where a statute defines two

or more ways in which an offense may be committed, all

may be alleged in the conjunctive in one count.’ ” (internal

citations omitted)), cert. denied, 129 S. Ct. 770 (2008);

United States v. Moore, 363 F.3d 631, 640 (7th Cir. 2004),

vacated on other grounds sub nom. Young & Jackson v.

United States, 543 U.S. 1100 (2005); United States v. LeDonne,

21 F.3d 1418, 1427 (7th Cir. 1994). The same is true in

other circuits. See Cox, 536 F.3d at 727 (collecting cases).

Mr. Kincaid acknowledges the holdings of Turner and

Cox, but argues that “neither case precludes the court

from conducting an analysis of whether or not a

defendant is actually prejudiced by a variance between

the indictment and the statute.” Reply Br. 3. Mr. Kincaid

claims that he was “actually prejudiced” by the language
No. 08-1953 17

Thus, this is not a case of “constructive amendment”—where 6

“the evidence presented at trial . . . raises the possibility that the

defendant was convicted of an offense other than that charged

in the indictment.” Hunter v. State of New Mexico, 916 F.2d

595, 599 (10th Cir. 1990) (internal quotation marks omitted).

of the indictment because he prepared his defense based

on the belief that “the Government had to prove that

the depictions themselves traveled in interstate and

foreign commerce.” Id.

The record belies this claim. It is important to note

that Mr. Kincaid’s only complaint with the indictment

is that it differs from the statutory language in the use of

the conjunctive; the statute of conviction is correctly

identified in the indictment, the elements of the statute

are correctly set forth in the indictment, and the

stipulated facts support the elements of the indicted

offenses. Furthermore, the parties’ stipulations reveal 6

that Mr. Kincaid was aware that the Government was

attempting to prove the interstate commerce element

by establishing that the materials used to produce the

child pornography had traveled in interstate commerce.

Indeed, the questions reserved for the court’s resolution

are focused on whether the materials used in producing

the pornography have the requisite nexus to interstate

commerce. See R.31 at 1-2. Additionally, Mr. Kincaid

stated explicitly in his submission to the district court

that he was “not stipulat[ing]” that either “the visual

depictions created by him” or “the pornography

possessed by him w[ere] produced using materials that

had been mailed, or shipped or transported in interstate
18 No. 08-1953

or foreign commerce.” Id. at 15-16 (emphasis in original). In

sum, the record reveals that Mr. Kincaid knew that the

Government was attempting to satisfy the interstate

commerce nexus by establishing that the materials used

to produce the pornography, as opposed to the pornography itself, had traveled in interstate commerce. Moreover, Mr. Kincaid’s actions in contesting this issue

reveal that he understood that, if the Government

satisfied this burden, it had proven its case. Consequently,

we do not believe that the wording of the indictment

deprived Mr. Kincaid of the opportunity to prepare an

adequate defense.

Conclusion

For the reasons set forth above, we affirm the judgment of the district court.

AFFIRMED

7-6-09