United States Court of Appeals

For the First Circuit

No. 99-1264

UNITED STATES OF AMERICA,

Appellee,

v.

ROBERT McKELVEY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

 Boudin, Circuit Judge,

Bownes, Senior Circuit Judge,

and Stahl, Circuit Judge.

Nathan Z. Dershowitz, with whom Victoria B. Eiger and

Dershowitz & Eiger, P.C. and Alan M. Dershowitz were on brief for

appellant.

Helen White Fitzgibbon, Assistant United States Attorney, with

whom Paul M. Gagnon, United States Attorney, was on brief for

appellee.

February 11, 2000
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BOWNES, Senior Circuit Judge. Appellant, Robert

McKelvey, appeals from a judgment of conviction and sentence

entered by the United States District Court for the District of New

Hampshire. We reverse the conviction because we rule that

McKelvey's actions did not meet the statutory requirement of

possession of "three or more" matters constituting child

pornography.

I. Facts

A federal grand jury indicted McKelvey on April 2, 1998,

charging him, in a three-count indictment, with sexual exploitation

of children in violation of 18 U.S.C. § 2251(a) (1984), possession

of photographs depicting minors engaged in sexually explicit

conduct in violation of 18 U.S.C. § 2252(a)(4)(B) (1984), and

inducing the interstate transportation of a child with the intent

that the child engage in prohibited sexual activity in violation of

18 U.S.C. § 2422 (1986). 

On November 3, 1998, McKelvey executed a written plea

agreement and entered a change of plea in the district court,

pleading guilty. The gravamen of this agreement was that McKelvey

would plead to possession of photographs depicting a minor engaged

in sexually explicit conduct. In return, the government agreed to

drop the other two charges and to forbear opposing a two-level

reduction of the applicable offense level for McKelvey's acceptance

of responsibility. 

The statute under which McKelvey pled guilty states in

relevant part:
1 In 1998, Congress amended 18 U.S.C. § 2252 to prohibit

possession of "1 or more" matters. See Protection of Children from

Sexual Predators Act of 1998, Pub. L. No. 105-314 § 203(a)(1), 112

Stat. 2974, 2978 (codified at 18 U.S.C. § 2252(a)(4)(B) (West Supp.

1999)). In doing so, Congress also provided an affirmative defense

under § 2252(a)(4)(B) for a defendant who could show that he

"possessed less than three matters containing [child pornography]

and promptly and in good faith took reasonable steps to destroy the

matter or report it to law enforcement officials without

disseminating it to others." Protection of Children from Sexual

Predators Act, § 203(a)(2), 112 Stat. at 2978 (codified at 18

U.S.C. § 2252(c)). 

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(a) Any person who–

(4) . . . 

(B) knowingly possesses 3 or

more books, magazines, periodicals, films,

video tapes, 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.

18 U.S.C. § 2252(a)(4)(B) (emphasis added).1 The statute defines

"sexually explicit conduct," § 2252(a)(4)(B)(i), as including,

inter alia, "lascivious exhibition of the genitals or pubic area of

any person." 18 U.S.C. § 2256(2)(E) (1986).

The photographs that formed the basis for the charges

were taken while McKelvey was a camp counselor at a summer camp in

Vermont. At the change of plea hearing, the Assistant United

States Attorney described the pictures to the court as follows:
2 At a September 1, 1999 bail hearing, a transcript of which

was presented to this court as an appendix to Defendant-Appellant's

Motion of September 13, 1999, the court and the Assistant United

State's Attorney had the following exchange:

THE COURT: Are you arguing on appeal that that

photograph is one of the qualifying photographs?

MS. FITZGIBBON: Your Honor, my position is that

whether it is or not, you don't even have to get there

because you have three matters before you which your

Honor saw and held to be child pornography.

THE COURT: I will take that as a no, you are not

relying on the missing photograph. How about the

photographs of the boy swinging on the rope swing?

MS. FITZGIBBON: Your Honor, they are less clear

under Amirault. But, again, the government's position is

you don't need to look at them. There were three matters

presented to the court. 

THE COURT: I will take that as, no, you are not

relying on those pictures anymore either . . . . Now

we're talking about the three photographs of the sleeping

boy on the cot; right?

MS. FITZGIBBON: Um-hum.

Tr. Bail Hearing, 30.

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Those pictures as shown to the jury would show

a young boy lying on his back appearing to be

asleep on his sleeping bag in a cabin at the

camp with a T-shirt pulled up under his arms

with his chest exposed, with no underwear, no

pants, and no shoes on. He's lying on his

back, and the series of three pictures

demonstrate that they were taken in the

sequence of one from a distance, another from

a closer perspective, and the third still from

a closer perspective, with, I submit, and the

jury could infer, the primary focal point

being the genitals or pubic area of the nineyear old boy.

Although the district judge also considered a set of other

photographs, the government eventually abandoned its reliance on

them; first in a bail hearing in the district court, albeit with

some ambiguity,2 and then forthrightly during oral argument before
3 We have received the other photographs as part of the record

on appeal. They show a number of young boys "skinnydipping."

Having reviewed them, we think that they fall far short of the

legal definition of child pornography, and are squarely within the

protection of the First Amendment.

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this court. The government now argues that the conviction can

stand solely on the photographs described above.3 

Precisely speaking, however, the government does not rely

on photographs at all. What was seized from McKelvey were not

printed photographs; the police, acting pursuant to a valid

warrant, seized a book containing many strips of innocuous

photographic negatives. Among these was the single strip of three

negatives containing the images described above. The government

then developed these negatives, turning them into photographs.

There is no suggestion that McKelvey ever developed these

negatives. 

II. Rule 11

McKelvey urges us to vacate his conviction for possession

of photographs of minors engaged in sexually explicit conduct

because the requirements of Federal Rule of Criminal Procedure 11

were not satisfied. He argues that the district court did not

comply with Rule 11(f)'s requirement that "Notwithstanding the

acceptance of a plea of guilty, the court should not enter a

judgment upon such plea without making such inquiry as shall

satisfy it that there is a factual basis for the plea." Fed. R.

Crim. P. 11(f). McKelvey claims that Rule 11(f)'s requirement could

not possibly be satisfied, because the photographs that formed the
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basis for the charge did not depict minors engaged in sexually

explicit conduct, as the statute requires. He further argues that

Rule 11(f) could not be satisfied because he did not fulfill the

statutory requirement that a defendant must possess "three or more"

pornographic items in order to incur criminal liability. Because

our decision rests on the latter argument, we assume without

deciding that the images contained on the negative strip are

lascivious.

A. Standard of Review

The fact that McKelvey failed to move to withdraw his

plea in the district court is not fatal to his challenge here. As

we have stated: "While we ordinarily deem waived an issue not

raised before the district court, we will determine Rule 11

compliance for the first time on appeal if the record is

sufficiently developed." United States v. Martinez-Martinez, 69

F.3d 1215, 1219 (1st. Cir. 1995). In order to warrant setting

aside his plea, McKelvey must show "'a fundamental defect [in the

plea proceeding] which inherently results in a complete miscarriage

of justice' or 'an omission inconsistent with the rudimentary

demands of fair procedure.'" United States v. Japa, 994 F.2d 899,

904 (1st Cir. 1993) (quoting Hill v. United States, 368 U.S. 424,

428 (1962)); see also Fed. R. Crim. P. 11(h) ("Any variance from

the procedures required by this rule which does not affect

substantial rights will be disregarded."). Of course, if McKelvey

pled guilty to actions that do not constitute a crime, the Japa

standard would be met. 
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B. "Three or more" Photographs

McKelvey challenges his plea on the grounds that there

was no factual basis for the court's finding that he possessed "3

or more books, magazines, periodicals, films, video tapes or other

matter," a requirement of 18 U.S.C. § 2252(a)(4)(B). After the

briefs on appeal were filed, McKelvey filed a motion with this

court, entitled "Defendant-Appellant's Motion for an Order (1)

Directing the Government to Produce, For This Court's Inspection,

the Strip of Negatives Seized From the Defendant From Which the

Government Created Government's Exhibits 3, 4, and 5, and (2)

Allowing Defendant-Appellant to Argue Therefrom that the

Requirement of 18 U.S.C. § 2252(a)(4)(B) that the Defendant

Possessed '3 or More Books, Magazines, Periodicals, Films, Video

Tapes or Other Material' Was Not Satisfied." This argument was

offered for the first time on appeal, but we do not deem it waived.

Ordinarily, we do not consider arguments proffered for

the first time on appeal. See Teamsters, Chauffeurs, Warehousemen

and Helpers Union, Local No. 59 v. Superline Transp. Co., 953 F.2d

17, 21 (1st Cir. 1992) ("If any principle is settled in this

circuit, it is that, absent the most extraordinary circumstances,

legal theories not raised squarely in the lower court cannot be

broached for the first time on appeal."). While we recognize that

our decision in National Ass'n of Social Workers v. Harwood, 69

F.3d 622, 627-29 (1st Cir. 1995), allows this court the discretion

to hear claims not raised below, we believe that this discretion is

best used sparingly. See New York State Dairy Foods v. Crowley,
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___ F.3d ___, No. 98-2370, slip op. at 20 n.9 (1st. Cir. Nov. 30,

1999). Instead, we find that the argument has not been waived

because McKelvey could not possibly have raised it at an earlier

date. Because there were, initially and continuing to the final

sentencing hearing, a large number of photographs involved, see

supra, page 4 and note 2, the issue appeared, if not moot in the

technical sense, at the very least irrelevant. See United States

v. Jennings, 83 F.3d 145, 151 (6th Cir. 1996) ("Were we to

establish a rule precluding subsequent inquiry upon remand into

such findings, then defendants would be forced to litigate every

aspect of the sentencing report in the original hearing, even

though irrelevant to the immediate sentencing determination in

anticipation of the possibility that, upon remand, the issue might

be relevant."). See also United States v. Ticchiarelli, 171 F.3d

24, 32 (1st Cir. 1999) (citing Jennings). 

Title 18 of the United States Code, § 2252(a)(4)(B)

criminalizes the knowing possession of "3 or more books, magazines,

periodicals, films, video tapes or other matter which contain any

visual depiction [of a child engaging in sexually explicit

conduct.]" We have assumed that the matters at issue in this case

contain such a depiction; the question remains whether the one

negative strip containing three images may be deemed "3 or more .

. . matter[s]." The precise issue is one of first impression. 

In United States v. Smith, 795 F.2d 841, 846-47 (9th Cir.

1986), the Ninth Circuit held that unprocessed, undeveloped film
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constituted a "visual depiction" within the meaning of the statute.

The court stated:

[W]e conclude that the exclusion of

unprocessed film from the statute's coverage

would impede the child pornography laws by

protecting a necessary intermediate step in

the sexual exploitation of children. The

interpretation urged by Smith would allow

unrestricted interstate commerce in child

pornography so long as the pornography was

still in the form of undeveloped film. Such a

loophole is inconsistent with congressional

intent; the undeveloped state of the film does

not eliminate the harm to the child victims in

the film's production or the incentive to

produce created by the film's trafficking.

 

Id. While instructive, Smith does not end our inquiry. It tells

us that the negative strip in this case is a matter, but leaves

open the question of whether the negative strip constitutes three

matters. 

The Supreme Court has stated, in a case involving

interpretation of an obscenity statute:

[T]his is a criminal statute and must be

strictly construed. This means that no

offense may be created except by the words of

Congress used in their usual and ordinary

sense. There are no constructive offenses.

The most important thing to be determined is

the intent of Congress. The language of the

statute may not be distorted under the guise

of construction, or so limited by construction

as to defeat the manifest intent of Congress.

United States v. Alpers, 338 U.S. 680, 681-82 (1950). We think

that it would be a distortion of Congress's intent to find that one

negative strip constitutes three matters. Under the plain language

of the statute, a book containing hundreds of photographs would not

violate the statute. By the same token, neither can one negative
4 There is a conflict among the circuits as to whether a

computer disk containing multiple images should be treated as one

matter or multiple matters consisting of one per image. Compare

United States v. Lacy, 119 F.3d 742, 748 (9th Cir. 1997), (holding

that "matter" referred to physical media), cert. denied ___ U.S.

___, 118 S. Ct. 1571 (1998), with United States v. Vig, 167 F.3d

443, 448 (8th Cir. 1999) (holding that "matter" referred to images,

regardless of physical media), cert. denied sub. nom. Tom Vig v.

United States, ___ U.S. ___, 120 S. Ct. 146 (1999) and cert. denied

sub. nom. Donovan Vig v. United States, ___ U.S. ___, 120 S. Ct.

314 (1999). However this issue might be resolved, we view a

computer disk as potentially distinguishable from a negative strip

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strip. Both are physical media on which are contained multiple

images. Had Congress meant for the number of images to be the

relevant criterion, it would have likely stated as much. Moreover,

§ 2252(a)(4)(B) punishes possession of "3 or more . . . matter[s]

which contain any visual depiction," (emphasis added), and not the

visual depictions alone. To find that the negative strip

constituted three matters, we would have to count the visual

depictions individually, which seems to us contrary to the language

of the statute.

The principle of ejusdem generis supports our

interpretation. This principle states that where general words

("other matter" in this case) follow the enumeration of particular

classes of things (books, magazines, periodicals, films, video

tapes"), the general words will be construed as applying only to

things of the same general class as those enumerated. The

particular things mentioned in the statute are all physical media

on which images are stored; so too is a negative strip. To

interpret "other matter" to refer to visual images would be to

ignore the plain language of the statute.4
because the huge number of unrelated images that may be contained

on a disk at least permit an analogy to a bookshelf or file

cabinet, and there is no counterpart language in the statute itself

("films," "videotapes") analogous to a negative strip and treated

in the statute as a single matter.

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Congress, in the version of the statute at issue here,

used language that left open the possibility that one might possess

one or more items of child pornography without incurring liability

under the statute. Again, assuming that the images are lascivious,

that is exactly what has happened here. When Congress realized

this possibility, it changed the statute. See supra note 1. As

one representative stated:

What is wrong? Present Federal law, which says

it is legal to possess one or two pieces of

child pornography, but not three or more.

Now, that was said to be the result of a

compromise with civil libertarians, but I

would say that it was an insane compromise

with the devil, a compromise which exposes

every American child to pedophiles and child

predators who lurk in every American

community. Let us also say that any item of

child pornography, one item, is the ultimate

example and evidence of the ultimate child

abuse.

144 Cong. Rec. H4504 (1998) (statement of Rep. Bachus). Another

member remarked:

[T]he gentleman from Alabama (Mr. Bachus) and

I are offering an amendment that will

eliminate a loophole in the current law that

currently allows individuals to legally

possess child pornography.

. . . . Mr. Chairman, under existing Federal

law, an individual can only be prosecuted for

possessing child pornography if they have

three or more books, magazines, periodicals,

films, videotapes or any other matter which

contain a visual depiction of a minor engaging

in sexually explicit conduct. Unfortunately,
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that means a pedophile can legally possess a

book or magazine with literally hundreds of

pictures of children being sexually abused.

Worse yet, it is also possible that these

predators can legally possess two videotapes

up to several hours long featuring children

being molested.

144 Cong. Rec. H4503 (1998) (statement of Rep. Riley) (emphasis

added). As the legislative history of the amendment demonstrates,

Congress knew what the original statute required, and exercised its

prerogative to alter the statute so that conduct such as McKelvey's

could be punished in the future. Fortunately for McKelvey,

Congress did so after McKelvey's indictment.

Accordingly, the requirement of the statute under which

McKelvey was prosecuted - that the defendant possess three or more

items - is not satisfied in this case. Lacking a factual basis for

acceptance of McKelvey's plea then, the district court erred in

accepting that plea. This constitutes a fundamental defect in the

plea proceeding, thus meeting the standard enunciated in United

States v. Japa, 994 F.2d 899, 904 (1st Cir. 1993).

III. Conclusion

We reverse McKelvey's conviction on the possession count.

In doing so, we express no opinion as to any issue that may arise

if the government seeks to prosecute McKelvey on any other charge.