UNITED STATES, Appellee

v.

Terry W. JAMES, Machinist’s Mate First Class

U.S. Navy, Appellant

No. 00-0592

Crim. App. No. 99-0435

United States Court of Appeals for the Armed Forces

Argued February 6, 2001

Decided August 15, 2001

SULLIVAN, J., delivered the opinion of the Court, in which

CRAWFORD, C.J., GIERKE, EFFRON, and BAKER, JJ., joined.

Counsel

For Appellant: Lieutenant Jonathan R. Goodman, JAGC, USNR (argued).

 

For Appellee: Colonel M. W. Fisher, Jr., USMC (argued); Lieutenant Commander

Philip Sundel, JAGC, USNR (on brief).

 

Military Judge: Robert G. Sokoloski

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. James, 00-0592/NA 

2

Judge SULLIVAN delivered the opinion of the Court.

On July 13, 1998, appellant was tried by a military judge

sitting alone at a special court-martial at the U.S. Trial

Service Office Guam. Pursuant to his pleas, he was found guilty

of one specification of possessing child pornography and two

specifications of transporting child pornography in interstate

commerce, in violation of 18 USC § 2252A as assimilated by

Article 134, Uniform Code of Military Justice, 10 USC § 934. The

military judge sentenced appellant to a bad-conduct discharge,

confinement for 150 days, and reduction to pay grade E-1. On

March 8, 1999, the convening authority approved the sentence as

adjudged, and on May 19, 2000, the Navy-Marine Corps Court of

Criminal Appeals affirmed the findings and sentence. See United

States v. James, 53 MJ 612 (N.M. Ct. Crim. App. 2000). 1

On November 16, 2000, this Court granted review of the

following issue:

WHETHER THE LOWER COURT ERRED IN FINDING

THAT THE STATUTORY LANGUAGE “APPEARS TO BE

A MINOR” AND “CONVEYS THE IMPRESSION” THAT

A PICTURE PORTRAYS A MINOR WITHIN 18 USC §

2252A WAS NOT UNCONSTITUTIONALLY OVERBROAD

BOTH ON ITS FACE AND AS APPLIED TO

APPELLANT.

We hold that the appellate court below did not err in affirming

appellant’s guilty-plea convictions of possessing and

transporting child pornography under 18 USC § 2252A and Article

 

 1/ The typed original of the opinion below is dated May 19,

2000.
United States v. James, 00-0592/NA 

3

134. See generally United States v. Hilton, 167 F.3d 61 (1st

Cir. 1999), cert. denied, 528 U.S. 844 (1999).

The record of trial shows that during 1998, appellant served

aboard the USS FRANK CABLE (AS 40), stationed at Guam. Appellant

lived in government quarters with another person, M.H. The

roommate owned a personal computer and paid monthly fees for

Internet access through a commercial provider. He also allowed

appellant to use both the computer and the Internet account.

From February to April 1998, appellant used the roommate’s

Internet account to “swap” files by downloading pictures from an

Internet site in exchange for posting pictures to that same site.

Appellant “intentionally picked sites . . . advertis[ing] ‘preteen pics’ and downloaded” at least three files that contained

“pictures of minors engaged in explicit sexual activity. After

downloading” these files, “appellant viewed” the pictures “and

saved” the images onto his roommate’s computer.

On April 22, 1998, appellant entered a chat room offering a

conversation on “Dad and daughter sex.” While accessing the chat

room through his roommate’s account, appellant engaged in a

discussion with someone called “Fast Girl,” in fact the screen

name of a male agent of the U.S. Customs Service posing as a

female pedophile. “[A]t Fast Girl’s request, appellant uploaded

a picture of a child he believed to be a minor engaged in

sexually explicit activity” and sent the picture electronically

to Fast Girl. “Two days later, . . . appellant uploaded” another

fifteen pictures which he “believed” were “minors engaged in
United States v. James, 00-0592/NA 

4

sexually explicit activity” and sent them electronically to Fast

Girl. The agent posing as Fast Girl received all the pictures

back in continental United States. 53 MJ at 612-13.

Appellant admitted the above facts and pleaded guilty to

violating 18 USC § 2252A on at least three occasions. 2

——— ——— ———

Appellant asks this Court to set aside his convictions under

18 USC § 2252A and Article 134 for possessing and transporting

child pornography. He contends that this federal statute is

unconstitutional because it violates the First Amendment. Cf.

United States v. Mento, 231 F.3d 912, 915 (4th Cir. 2000), cert.

filed Jan. 22, 2001. He particularly argues that this statute is

constitutionally overbroad because it not only prohibits sexually

explicit depictions of actual children, but also such pictures of

virtual or apparent children as well. He asks that his guilty

pleas to violating this unconstitutional statute be set aside as

improvident. See generally United States v. Prater, 32 MJ 433,

436 (CMA 1991) (an accused must “show a ‘substantial basis’ in

law and fact” exists for overturning a guilty plea on appeal).

The Child Pornography Prevention Act of 1996 proscribes

knowing transportation, knowing receipt, knowing distribution,

and knowing possession of child pornography in interstate

commerce “by any means, including by computer.” See 18 USC §

 

2/ 18 USC § 2252A was amended on October 30, 1998 (Pub. L. No.

105-314, 112 Stat. 2978 (1998)) which eliminated “‘3 or more

images’ each place that term appears and inserting ‘an image.’”

Appellant’s offenses were alleged to have occurred between

February and April 1998.
United States v. James, 00-0592/NA 

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2252A(a). 3 The term “child pornography” is broadly defined in

the U.S. Code. It includes not only a “visual depiction . . . of

sexually explicit conduct . . .(A) . . . involv[ing] the use of a

minor engaging in sexually explicit conduct”; but also “(B) such

visual depiction [which] is, or appears to be, of a minor

engaging in sexually explicit conduct” and “(D) such visual

depiction . . . conveys the impression that the material is or

contains a visual depiction of a minor engaging in sexually

explicit conduct[.]” See 18 USC §§ 2256(8) (emphasis added).

The military judge explained to appellant:

The term “child pornography” means any

visual depiction including photograph,

video, picture of computer-generated image

or picture, whether made or produced by

electronic mechanical or other means of

sexually explicit conduct, where the

 

3/ “(a) Any person who – (1) knowingly mails, or transports or

ships in interstate or foreign commerce by any means, including

by computer, any child pornography; (2) knowingly receives or

distributes – (A) any child pornography that has been mailed, or

shipped or transported in interstate or foreign commerce by any

means, including by computer; or (B) any material that contains

child pornography that has been mailed, or shipped or transported

in interstate or foreign commerce by any means, including by

computer; ***

or (5) either – (A) in the special maritime or territorial

jurisdiction of the United States, or on any land or building

owned by, leased to, or otherwise used by or under the control of

the United States Government, or in the Indian country (as

defined in section 1151), knowingly possesses any book, magazine,

periodical, film, videotape, computer disk, or any other material

that contains 3 or more images of child pornography; or

(B)knowingly possesses any book, magazine, periodical, film,

videotape, computer disk, or any other material that contains 3

or more images of child pornography that has been mailed, or

shipped or transported in 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

interstate or foreign commerce by any means, including by

computer, shall be punished as provided in subsection (b).
United States v. James, 00-0592/NA 

6

production of such visual depiction

involves the use of a minor engaging in

sexual [sic] explicit conduct. Such

visual depiction is or appears to be of a

minor engaging in sexually explicit

conduct or such visual depiction has been

created, adapted or modified to appear

that of an unidentifiable minor or it

contains a visual depiction of a minor

engaging in sexually explicit conduct. Do

you understand that?

ACC: Yes, sir.

MJ: The definition of “child pornography,”

“visual depiction,” and “minor” again come

under or come from section 2256 of Title

18 of the United States Code. . . .

R. 19.

Appellant argues that the “appears to be” and “conveys the

impression” language of the statute infringes on speech protected

by the First Amendment of the U.S. Constitution. He largely

adopts the position of the Ninth Circuit in Free Speech Coalition

v. Reno, 198 F.3d 1083 (9th Cir. 1999), cert. granted, 121 S.Ct.

876 (2001). There, the Ninth Circuit recognized that the

definition of child pornography found in the federal statute (18

USC 2256(8)) constituted a “content-based classification of

speech.” Reno, 198 F.3d at 1091. As such, it stated that the

Government had to show both “a compelling interest” served by

this statute and how that statutory definition was “narrowly

tailored” to fit that interest. Id. Focusing on the “compelling

interest” of the state in proscribing child pornography mentioned

by the Supreme Court in New York v. Ferber, 458 U.S. 747 (1982),

the Ninth Circuit held that the state had no compelling interest

in regulating virtual or apparent child pornography where no

minor was actually harmed. Reno, 198 F. 3d at 1096. “Nothing in
United States v. James, 00-0592/NA 

7

Ferber can be said to justify the regulation of such materials

other than the protection of the actual children used in the

production of child pornography.” Id at 1092.

We disagree with the Ninth Circuit’s holding in Free Speech

Coalition v. Reno, supra, and hold the definition of “child

pornography” in 18 USC §§ 2256(8) and the prohibitions in 18 USC

§ 2252A are constitutional. The majority of the other federal

courts of appeals that have considered this same issue have held

this section of the Act to be constitutional. See United States

v. Hilton, 167 F.3d 61 (1st Cir. 1999); see also United States v.

Acheson, 195 F.3d 645 (11th Cir. 1999); United States v. Mento,

231 F. 3d 912 (4th Cir. 2000); and United States v. Fox, 248 F.3d

394 (5th Cir. 2001). In particular, we adopt the rationale of

the First Circuit as elaborated in United States v. Hilton, supra

at 72 (holding that “appears to be” language added prohibition

against virtual child pornography to prohibition against actual

child pornography as particularly defined in original statute).

The First Circuit in Hilton opined that suppressing the

“virtual” or apparent child-pornography trade constituted a

compelling government interest that justified the expanded

definition of “child pornography” found in the federal statute.

It acknowledged that this federal statute created a “contentbased” restriction, 167 F.3d at 69, and applied the same

“compelling state interest-narrow tailoring” test as the Ninth

Circuit in Reno. See Hilton, 167 F.3d at 68. However, looking

to the decision in Osborne v. Ohio, 495 U.S. 103 (1990), it
United States v. James, 00-0592/NA 

8

maintained that the Supreme Court has recognized a broader

governmental interest in regulating child pornography than

approved in Ferber. See Hilton, 167 F.3d at 70,73. As such, the

First Circuit upheld the statute as constitutional:

As technology improves and access to

technology increases, efforts to eradicate

the child pornography industry could be

effectively frustrated if Congress were

prevented from targeting sexually explicit

material that “appears to be” of real

children. The government’s interest in

addressing these forms of child

pornography is no less powerful than in

instances where an actual child is

actually used and abused during the

production process. We will not secondguess Congress’s decision to address the

social ills posed by the various types of

virtual child pornography.

Hilton, 167 F.3d at 73. 4 We agree.

In any event, even if the First Circuit’s approach to 18 USC

§ 2252A is not followed, appellant’s convictions need not be

invalidated. A narrow construction of this statute applying it

only to pictures of actual minors would clearly render this

statute constitutional even under the Ninth Circuit’s decision.

 

4/ The First Circuit recounted Congress’ stated reasons for

broadening the definition of child pornography: “First, the

legislature desired to reduce the sheer volume of computerized

child pornography that could be used by child molesters and

pedophiles to ‘stimulate or whet their own sexual appetites.’ S.

Rep. 104-358, at pt. IV(B). Second, Congress sought to ban

computer-generated images that are ‘virtually indistinguishable’

from those of real children, but are made without live children.

Id. . . . Third, the new law was designed to protect the privacy

of actual children whose innocuous images are altered to create

sexually explicit pictures. . . . Fourth, Congress wished to

deprive child abusers of a ‘criminal tool’ frequently used to

facilitate the sexual abuse of children.” Hilton, 167 F.3d at
United States v. James, 00-0592/NA 

9

See Free Speech Coalition v. Reno, supra at 1086. Here,

appellant’s admissions “objectively support” his pleas of guilty

to violations of the more narrowly construed statute directed at

sexual pictures of actual minors. See generally United States v.

Shearer, 44 MJ 330, 334 (1996) (“An inquiry into the providence

of a guilty plea must establish the factual circumstances

admitted by the accused which ‘objectively’ support his plea.”).

Appellant argues that no definite proof exists in his case

that the pictures at issue showed actual minors. However, in the

guilty-plea context, the Government does not have to introduce

evidence to prove the elements of the charged offense beyond a

reasonable doubt; instead, there need only be “factual

circumstances” on the record “which ‘objectively’ support” the

guilty pleas, i.e., that actual minors were in appellant’s

pictures. See Shearer, 44 MJ at 334. Here, appellant pleaded

guilty to the charged violations of 18 USC § 2252A (R. 11) and

admitted that actual minors were in the charged pictures.

The judge in this case explained to appellant that an

element of the crimes of possessing and transporting child

pornography was proof that the subjects of the pictures were

minors. He said:

The third element of Specification 1, is

that the visual depiction was produced by

using at least one person who was a minor

engaged in this sexually explicit conduct.

Do you understand that element?

 

66-67. See United States v. Mento, 231 F.3d 912, 916, 918, 920-22

(4th Cir. 2000).
United States v. James, 00-0592/NA 

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ACC: Yes, sir.

MJ: And that element is the same for

Specification 2 and Specification 3. Do

you understand that?

ACC: Yes, sir.

R. 16. Moreover, appellant particularly admitted that the

subjects of the pictures were minors:

Q. Now, why do you believe that- as far

 as describes those files- why you

 believe the files to be described as

 child pornography?

A. Well, they depicted young females

 under the age of eighteen, which as

 you stated, that they, uh, they are

 minors. I believe that the pictures

 depicted minors under the age of

 eighteen and at least four contained

 minors engaged in sexual activity.

***

Q. Do you believe that one of those

 persons involved in that conduct was

 a minor?

A. I believe the person in the picture

 was under eighteen, yes, sir.

Q. Now, when you say the person in the

 picture, was there one person or more

 than one?

A. There were two persons in the picture,

 sir. The person I’m referring to- is

 I believe, the young lady, was a

 minor. I am not- I am not sure of the

 male.

R. 27, 34.

Appellant’s admissions concerning the age of the subjects of

the pictures in his case were amply supported by the pictures

themselves which are attached to this record as exhibits. See R.
United States v. James, 00-0592/NA 

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54-55 and Pros. Ex. 2-4. In addition he admitted that he went to

various web sites looking for pictures of “pre-teen[s]” and

downloaded pictures from files labeled in a manner reasonably

suggesting depiction of actual minors. R. 26, 38. Finally,

appellant admitted that he visited chat rooms on the Internet

with topics such as “Dad and daughter sex” where pictures of

minors were regularly requested and provided. R. 32. Viewed in

its entirety, we conclude that the factual circumstances

reflected in the record “objectively support” appellant’s guilty

pleas to possessing and transporting child pornography depicting

actual minors.

The decision of the United States Navy-Marine Corps Court of

Criminal Appeals is affirmed.