F I L E D

United States Court of Appeals

Tenth Circuit

MAR 5 1999

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-1048

JOHN FABIANO,

Defendant-Appellant.

 

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. No. 96-CR-502-Z)

 

Andrew A. Vogt, Assistant United States Attorney, (Henry L. Solano, United States

Attorney, with him on the brief) Denver, Colorado, for Plaintiff-Appellee. 

 Jill M. Wichlens, Assistant Federal Public Defender, (Michael G. Katz, Federal Public

Defender, with her on the brief) Denver, Colorado, for Defendant-Appellant.

 

Before TACHA, BALDOCK, and MURPHY, Circuit Judges.

 

BALDOCK, Circuit Judge.

 

Defendant John Fabiano appeals his conviction for knowingly receiving child

pornography, in violation of 18 U.S.C. § 2252(a)(2). Defendant was charged in a fifteencount indictment with transporting, receiving and possessing child pornography in
1

 Each subscriber who logged into the Preteen chat room is provided with the

“screen names” of all other individuals in the chat room at that time. Subscribers in the

(continued...)

2

violation of 18 U.S.C. §§ 2252(a)(1), (a)(2) and (a)(4)(B). A jury convicted him of two

counts of knowingly receiving visual depictions of child pornography, in violation of §

2252(a)(2), and acquitted him on the remaining thirteen counts. The district court

sentenced Defendant to 24-months imprisonment and three years of supervised release. 

On appeal, Defendant raises three errors. First, Defendant argues that the jury was not

properly instructed regarding when Defendant had to know that the visual depictions he

received were child pornography. Second, Defendant argues that the evidence was

insufficient to prove that Defendant knew, prior to receiving the visual depictions, that the

images depicted minors engaged in sexually explicit conduct. Finally, Defendant argues

that the district court erred by ordering Defendant to comply with the requirements of the

Colorado sex offender registration statute as a condition of supervised release. Our

jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1). We affirm.

I. Background

After a tip from a confidential informant, federal law enforcement agents began

monitoring a private Internet “chat room” named “Preteen.” The chat room was

accessible to subscribers of America Online (“AOL”). Agents monitored the activity in

the Preteen chat room by logging into the room and participating in and observing the

conversations among the participants.1

 As a result, agents learned that the participants in
1

(...continued)

chat room can electronically communicate by sending messages and pictures to every

other subscriber in the chat room or by sending private messages to individual

subscribers. 

3

the Preteen chat room were discussing and trading computer-generated images depicting

child pornography. Agents kept chat logs, or transcripts, of the electronic conversations

they were monitoring. 

In April 1996, Defendant’s “screen names” began appearing on the Preteen chat

logs, indicating that Defendant was visiting the chat room and conversing with the other

participants. On September 10, 1996, Defendant, along with other individuals logged

into the chat room, received two e-mails with attached files. Attached to the first e-mail

message was a file titled “3CUMFAC.” Attached to the second message was a file titled

“6SUK.” Both files depicted children engaged in sexual acts. After receiving these files,

Defendant continued to log onto the Preteen chat room for two months.

On December 11, 1996, agents searched Defendant’s home in Broomfield,

Colorado pursuant to a warrant. Agents seized two computers along with some computer

diskettes. On February 27, 1997, Defendant was charged with fifteen counts of

transporting, possessing and receiving child pornography, including two counts of

knowingly receiving child pornography arising from his receipt of the two files on

September 10, 1996. After an eleven-day trial, a jury convicted Defendant of these two

counts of knowing receipt and acquitted him on all other charges. 
2

 The reasons for the district court’s rejection of Defendant’s proposed instruction

are unclear because the jury instruction conference was not conducted on the record.

4

II. Analysis

A. Jury Instructions

Defendant argues that the district court failed to properly instruct the jury on the

Government’s burden of proof regarding Defendant’s knowledge of the content of the

visual depictions he received. Specifically, Defendant asserts that the elements of the

offense instruction failed to make clear that Defendant must have known, before he

received the computer files, that they depicted minors engaged in sexually explicit

conduct. Therefore, Defendant asserts that the elements of the offense instruction is

erroneous. 

We review a jury instruction de novo when an objection is made at trial, and for

plain error when no objection was made. United States v. Pappert, 112 F.3d 1073, 1076

(10th Cir. 1997); see Fed. R. Crim. P. 52(b). In this case, Defendant offered an

instruction on the elements of the offense, which the district court rejected.2 Defendant

did not specifically object, however, to the elements instruction given by the court. By

failing to object to the court’s instruction, Defendant failed to put the district court

“clearly on notice as to the asserted inadequacy” of the jury instruction. United States v.

Duran, 133 F.3d 1324, 1330 (10th Cir. 1998). Therefore, we review for plain error. See

id.; see also United States v. Martinez, 776 F.2d 1481, 1484 (10th Cir. 1985) (tendering
5

jury instructions which were not given does not preserve the issue for appeal).

Under this standard, Defendant must show: (1) an “error,” (2) that is “plain,”

which means “clear” or “obvious” under current law, and (3) that “affect[s] substantial

rights.” Johnson v. United States, 117 S.Ct. 1544, 1549 (1997) (quoting United States v.

Olano, 507 U.S. 725, 732 (1993)). If these three requirements are met, then we may

exercise discretion to correct the error if it “seriously affect[s] the fairness, integrity, or

public reputation of judicial proceedings.” Olano, 507 U.S. at 732 (internal quotations

omitted). 

We must first determine whether the challenged jury instruction was error. When

reviewing jury instructions for error, we view them as a whole “to determine whether the

jury may have been misled, upholding the judgment in the absence of substantial doubt

that the jury was fairly guided.” United States v. Wiktor, 146 F.3d 815, 817 (10th Cir.

1998) (internal quotations omitted). 

In this case, the district court gave the following elements of the offense

instruction:

The essential elements required to be proven in order to establish an

offense under 18 U.S.C. § 2252(a)(2) are:

First: That the Defendant knowingly received a visual

depiction which had been shipped or transported in interstate

commerce by computer;

Second: That the production of the visual depiction involved,

and the defendant knew it involved, the use of a minor engaging in

sexually explicit conduct; and
3

 Defendant’s proposed instruction differed only slightly. In it the second element

of the offense read: “That the Defendant knew that the production of that visual depiction

involved the use of a minor engaging in sexually explicit conduct prior to his having

received it.” Defendant’s argument rests upon the district court’s deletion of “prior to his

having received it.”

6

Third: That the visual depiction was of such conduct.3

The district court also gave separate instructions on “knowingly” and “knowingly

received.” The “knowingly” instruction stated:

An act is done “knowingly” if done voluntarily and

intentionally, and not because of mistake or accident or other

innocent reason.

In this case, the term “knowingly” refers to an awareness of

the sexually explicit nature of the material, and to the knowledge that

the visual depictions were in fact of minors engaged in that sexually

explicit conduct.

The United States must show that the Defendant had

knowledge of the general nature of the contents of the material. The

Defendant need not have specific knowledge as to the actual age of

the underage performer. The Defendant must have knowledge or an

awareness that the material contained a visual depiction of a minor

engaging in sexually explicit conduct. Such knowledge may be

shown by direct or circumstantial evidence, or both. Eyewitness

testimony of the Defendant’s perusal of the material is not necessary

to prove his awareness of its contents; the circumstances may

warrant an inference that he was aware of what the material depicts. 

Furthermore, the Defendant’s belief as to the legality or illegality of

the material is irrelevant.

 The district court also gave the following instruction on “knowingly received”:

You are instructed that the term “knowingly received” includes knowing

acceptance of requested material. The material does not have to be

maintained or stored. “Knowing receipt” means more than simply having email sent to a computer. If John Fabiano requested the images in question,

and they were ultimately sent to him by e-mail, you may find that is
7

sufficient to show he “knowingly received” them. If John Fabiano did not

request the images in question, you may find that he did not “knowingly

receive” them.

Defendant argues not only that the elements instruction was erroneous, but that the other

instructions given by the Court did not cure the error. Viewing these instructions

collectively, we conclude no error occurred. 

First, the elements instruction comports with the requirements set forth by the

Supreme Court in United States v. X-Citement Video, Inc., 513 U.S. 64 (1994). In XCitement, the Court held that the “knowingly” scienter requirement in § 2252 applies, not

only to “receives,” but also to “the sexually explicit nature of the material and to the age

of the performers.” Id. at 78. Thus, in a § 2252(a)(2) case, the Government must not

only prove that the defendant “knowingly received” a visual depiction, but also that the

defendant knew that the material was sexually explicit and that the performers were

minors. See United States v. Cedelle, 89 F.3d 181, 185 (4th Cir. 1996). 

In this case, the jury was instructed by the elements instruction that Defendant

must have known that the “production of the visual depiction involved . . . the use of a

minor engaged in sexually explicit conduct.” In addition, the “knowingly” instruction

informed the jury that “knowingly” refers to both “an awareness of the sexually explicit

nature of the material, and to the knowledge that the visual depictions were 

in fact of minors engaged in that sexually explicit conduct.” (emphasis added). Thus, the

instructions comply with X-Citement Video. 
8

Furthermore, the instructions, viewed together, properly instructed the jury as to

when Defendant had to know the material he received involved minors engaged in

sexually explicit conduct. For example, the “knowingly received” instruction stated that

“‘knowing receipt’ means more than simply having e-mail sent to a computer.” That

instruction also stated that “[i]f John Fabiano did not request the images in question, you

may find that he did not ‘knowingly receive’ them.” The “knowingly” instruction stated

that “knowingly” does not mean “mistake or accident or other innocent reason.” Thus,

these instructions did not permit the jury to find Defendant guilty of “knowingly

receiving” child pornography in violation of § 2252(a)(2), if the evidence showed that

Defendant merely acquired the e-mail’s without knowledge of their content, i.e., by

accident or mistake. Furthermore, nothing in the language of the instructions suggests

that after-acquired knowledge of the content of these visual depictions would be

sufficient to convict Defendant under § 2252(a)(2). It follows from these instructions

that the jury found that Defendant had the requisite knowledge, before he received the

visual depictions, of the content of these images. 

Second, we disagree with Defendant that X-Citement Video requires an additional

statement in the elements of the offense instruction regarding when Defendant acquired

the requisite knowledge. In X-Citement Video, the Court held only that the § 2252

scienter requirement applies to both the sexually explicit nature of the material and to the

age of the performers. Regardless, the instructions in this case properly informed the jury
9

as to when Defendant must have been aware of the nature and content of the material he

received. 

Finally, Defendant’s reliance on United States v. Cedrelle, 89 F.3d 181 (4th Cir.

1996) is misplaced. In Cedrelle, the Fourth Circuit found plain error where a 

§ 2252(a)(2) elements of the offense instruction did not comply with X-Citement Video. 

Cedrelle ran afoul of X-Citement Video because the jury was not instructed that the

defendant had to have knowledge that the materials he received were depictions of minors

engaged in sexually explicit acts. See Cedrelle, 89 F.3d at 184. Cedrelle did not hold that

the elements of the offense instruction must include a statement explaining when the

requisite knowledge must have been acquired by the defendant. Thus, the jury

instructions in Cedrelle are distinguishable from the instructions given in this case. 

Viewing the instructions as a whole, we are not left with “substantial doubt that the

jury was fairly guided.” Wiktor, 146 F.3d at 817. Consequently, we find no error in the

instructions given by the district court. Having found no error, normally our plain error

analysis would end. However, the Government, while not conceding error, did admit at

oral argument that an elements of the offense instruction which explicitly addressed when

knowledge must be acquired would have been preferable. In light of the Government’s

statement, we assume arguendo that the instruction as given was error and constituted

plain error. Even so assuming, we would decline to exercise our discretion to grant relief

because Defendant has not demonstrated that he was prejudiced by the error. See United
10

States v. Bell, 154 F.3d 1205, 1209 (10th Cir. 1998). The claimed error in the jury

instructions would not result in a miscarriage of justice or “seriously affect the fairness,

integrity, or public reputation of the judiciary,” because the evidence was overwhelming

regarding Defendant’s prior knowledge of the content of the visual depictions he

received. See Olano, 507 U.S. at 736. Defendant had been a regular visitor to the

Preteen chat room for several months before he received the two files which were the

subjects of the counts of conviction. He was present in the Preteen chat room when

graphic discussions took place regarding the content of material sent and traded in the

Preteen chat room. Defendant also offered to trade in the Preteen chat room and asked to

be included in mailings sent by other participants. In light of this evidence, the

proceedings resulted in a “fair and reliable determination” of Defendant’s guilt and, even

assuming plain error, a reversal would be unwarranted. See United States v. Cedrelle, 89

F.3d 181, 186 (4th Cir. 1996). 

B. Sufficiency of the Evidence

Defendant argues that the evidence was insufficient to prove that he knew before

receiving the pictures that the visual depictions showed minors engaged in sexually

explicit conduct. Sufficiency of the evidence is a question of law reviewed de novo. 

United States v. Carter, 130 F.3d 1432, 1439 (10th Cir. 1997). We will not reverse a

conviction based upon insufficient evidence unless no rational trier of fact could have

reached the disputed verdict. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). In
11

reviewing the record, we view the evidence and the reasonable inferences to be drawn

therefrom in a light most favorable to the government. Id.; United States v. Haslip, 160

F.3d 649, 652-53 (10th Cir. 1998). We do not weigh the evidence or consider the

credibility of the witnesses. Haslip, 160 F.3d at 653. 

In order to find a defendant guilty of knowing receipt of child pornography in

violation of 18 U.S.C. § 2252(a)(2), a jury must find beyond a reasonable doubt that: (1)

Defendant knowingly received a visual depiction sent in interstate commerce via

computer; (2) which Defendant knew depicted a minor engaged in sexually explicit

conduct. See X-Citement Video, 513 U.S. at 78. After reviewing the record, we find 

ample evidence to support the jury’s verdict that Defendant was guilty of knowingly

receiving visual depictions of minors engaged in sexually explicit conduct. 

The evidence shows that Defendant visited the Preteen chat room for

approximately five months prior to receiving the two visual depictions which were the

subjects of Counts II and III of the indictment. The chat room logs introduced at trial

show that Defendant observed and participated in discussions in the Preteen chat room

from which a jury could reasonably conclude that he was aware of the type of material

traded in the room. For example, on May 16, 1996, while Defendant was logged on in the

Preteen chat room, the participants discussed mailings and trading pictures. One

participant, screen name “JPavlik984," inquired “Anyone wanna trade 6-11.” Screen

name “Mbuckinghm,” asked “how young is everybody into?” “LOOkatpics” responded
4

 Special Agent Steven MacMartin testified that this statement means put me on

the mailing list to receive messages and I will respond in kind. 

12

“jp I have 6 to 11 in the mass mail I am sending out in 5 min’s.” When “LOOkatpics”

said “time’s up here comes the mail!!”, Defendant, logged on as “Brooke9696,"

responded with “send to me PLEEEEZEE.” 

On September 4-5, 1996, just days before Defendant received the files which were

the subject of the two counts of conviction, he was logged onto the Preteen chat room. 

On September 4, “Nirvana22" asked “Anyone want to trade boys?” Defendant, logged on

as “TanLegs” responded “won’t they mind?” “Nirvana22" asked “TanLegs, you want to

trade boys?” Defendant did not respond but remained in the chat room while the

participants discussed sexual acts with boys. On September 5, screen name “Heidelb”

said “lets go send preteen pics.” Defendant, logged on again as “TanLegs” responded

“list me and I will return.”4

 

On September 10, 1996, the same day Defendant received the two files which were

the subjects of Counts II and III of the indictment, Defendant, signed on as “TanLegs,”

was in the chat room when the following comments were sent: “please send young teens,”

“i got lots of preteen,” and “need animal shots will trade pre teen for animal.” 

After Defendant received the two sexually explicit e-mails on September 10, 

1996, he did not discontinue his visits to the Preteen chat room. Instead, he continued to

frequent the Preteen chat room until November 1996. For example, on September 11,
13

1996, Defendant entered the Preteen chat room and inquired “anyone trading.” On

September 12, 1996, Defendant, logged on as “TanLegs,” told the participants in the

Preteen chat room that “i will gladly trade one on one or contribute to any list going on.” 

Special Agent Daniel Chadwick testified that this meant that Defendant was willing to set

up a trade and if someone would send him a picture, he would send them one. 

Defendant’s statements to investigators during questioning are also relevant to

Defendant’s knowledge of the nature of the materials he received while in the Preteen

chat room. Agents testified that Defendant admitted that he visited the Preteen chat room

and viewed a large number of pictures. He also told the agents that he received nude

pictures of adults and children, including children involved in sexual acts. Defendant

said that he downloaded the images onto diskettes and then deleted any images that

depicted children involved in sexual acts because he thought these images were illegal. 

He indicated that he downloaded images onto diskettes so that he would have files to

trade in the Preteen chat room. 

Finally, the graphically descriptive names of the files Defendant received on

September 10, 1996, – “3CUMFAC” and “6SUK” – also support Defendant’s conviction

for “knowing receipt” of child pornography. From the above testimony and the chat room

logs introduced as exhibits at trial, a jury could reasonably conclude that Defendant knew

that the participants in the chat room were trading images of child pornography and that

Defendant requested and knowingly received such images. In light of the evidence before
14

the jury, we cannot conclude that “no reasonable juror” could have reached this verdict. 

Carter, 130 F.3d at 1439. Consequently, the evidence is sufficient to support Defendant’s

conviction on the two counts of knowingly receiving child pornography. 

C. Supervised Release

Defendant argues that the district court erred by requiring him, as a condition of

supervised release, to comply with the registration requirements of the Colorado sex 

offender registration statute, Colo. Rev. Stat. § 18-3-412.5. Defendant argues that his

conviction does not fall within the purview of the statute. Defendant did not object to

this condition of supervised release. Therefore, we review the district court’s imposition

of the condition for plain error. United States v. Orozco-Rodriguez, 60 F.3d 705 (10th

Cir. 1995). 

District courts have broad discretion to fashion conditions of supervised release. 

See United States v. Edgin, 92 F.3d 1044, 1048 (10th Cir. 1996). In addition to certain

mandatory conditions of supervised release set forth in 18 U.S.C. § 3583(d), a court may

impose additional conditions to the extent that such conditions “involve no greater

deprivation of liberty than is reasonably necessary” to deter criminal conduct, protect the

public, and provide the defendant with needed educational or vocational training, medical

care, or other correctional treatment. 18 U.S.C. §§ 3583(d) and 3553(a)(2). Section

3583(d) also provides that the conditions must be “reasonably related” to “the nature and

circumstances of the offense and the history and characteristics of the defendant.” 18
15

U.S.C. §§ 3583(d)(1) and 3553(a)(1) 

As a condition of supervised release, the district court ordered Defendant to

“comply with the State of Colorado Sex Offender registration requirements for convicted

sex offenders pursuant to Colorado Revised Statutes 18-3-412.5.” Section 18-3-

412.5(1)(b) provides that:

On and after July 1, 1994, any person who is convicted in the state of Colorado of

an offense involving unlawful sexual behavior or for which the factual basis

involved an offense involving unlawful sexual behavior . . . shall be required to

register in the manner prescribed in subsection (3) of this section. 

Col. Rev. Stat. § 18-3-412.5(1)(b). Subsection (3) requires individuals who fall within

the reach of the statute to register with local law enforcement “within seven days of

becoming a temporary or permanent resident of any city, town, county . . . in the state of

Colorado” and “annually thereafter” for ten years. Col. Rev. Stat. § 18-3-412.5(3). 

Defendant argues that because the statute’s definition of “unlawful sexual

behavior” does not explicitly list the offense he was convicted of, knowingly receiving

child pornography, Defendant does not fall within the reach of the statute. We need not

decide whether Defendant’s conduct falls within the statutory definition of “unlawful

sexual behavior,” because even if it does not, the district court, in its discretion could

have properly ordered Defendant to register as a sex offender in Colorado as a condition

of supervised release. See United States v. Coenen, 135 F.3d 938, 946 (5th Cir. 1998)

(district court did not abuse its discretion by requiring the defendant to notify local law
5

 Defendant denied sending pictures depicting children engaged in sexual acts.

16

enforcement of his name, address and the crime for which he was convicted). 

Under 18 U.S.C. § 3583(d), a district court may impose conditions of supervised

release in addition to those contained in the statute so long as they are reasonably related

to the nature and circumstances of the offense, and the history and characteristics of the

defendant. Requiring Defendant to register with local law enforcement is reasonable. As

a convicted sex offender, the registration requirement was reasonably related to (1)

deterrence of criminal conduct by Defendant; and (2) protection of the public. See

Coenen, 135 F.3d at 945. A jury convicted Defendant of a child pornography offense,

based on his receipt of two visual images depicting children involved in sexual acts. For

several months, Defendant frequently visited a Preteen chat room where child

pornography and other material was traded. He told FBI investigators that he sent and

received pictures of nude5 children over the Internet and that he stored such images in

order to have material to trade in the Preteen chat room. 

Furthermore, the registration requirement involves “no greater deprivation of

liberty than is reasonably necessary.” 18 U.S.C. § 3583(d)(2). To comply with the

registration requirement, Defendant must provide only limited personal information to

local law enforcement. See id. at 946. The district court acted well within its discretion

by imposing this condition of supervised release.

Defendant also argues that the district court was not exercising its discretion when
17

it ordered compliance with the registration statute, but instead required compliance with

the Colorado statute because of an erroneous belief that Defendant’s compliance was

mandatory under Colorado law. We disagree. The presentence report (“PSR”)

recommended that “in view of the nature of the offense, the Court may also wish to

consider imposing the following special conditions.” (emphasis added). One of the

proposed conditions was that “the defendant shall comply with the State of Colorado Sex

Offender Registration requirements for convicted sex offenders pursuant to Colorado

Revised Statutes § 18-3-412.5.” Importantly, the PSR did not state that Defendant was

required to comply with the statute. Instead, the PSR merely offered it as one of several

options for the district court to consider. At sentencing, the district court, during the

discussion of the conditions of supervised release, stated:

The next point – and I want to point this out – is that there is a statute in Colorado

that requires registration for people who meet the definition under the statute. It’s

the sex offender registration requirement. And that’s 18-3-412.5, and that’s

something that unless Mr. Lane [defense counsel] otherwise advises – that’s

something that should be taken care of as far as registration. 

Defense counsel did not object and the registration requirement was included in the

judgment. Granted, the district court did not clearly articulate the rationale behind the

imposition of this condition. When the court’s statement is viewed in light of the PSR,

however, we may reasonably infer that the district court chose to include the condition of

supervised relief because it was appropriate under the circumstances, not because it

believed Colorado law required such a result. Consequently, we reject Defendant’s
18

argument that the district court relied upon a mistaken notion that compliance with the

Colorado statute was mandatory. 

III. Conclusion

For the foregoing reasons, we AFFIRM the district court.