FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KEVIN MICHAEL SHELDON,

Defendant-Appellant.

No. 12-30324

D.C. No.

6:12-cr-00010-CCL-1

ORDER AND

OPINION

Appeal from the United States District Court

for the District of Montana

Charles C. Lovell, Senior District Judge, Presiding

Submitted August 26, 2013*

Seattle, Washington

Filed April 9, 2014

Before: Michael Daly Hawkins, M. Margaret McKeown,

and Richard R. Clifton, Circuit Judges.

Order;

Opinion by Judge Clifton

* The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).
2 UNITED STATES V. SHELDON

SUMMARY**

Criminal Law

The panel granted the defendant’s motion for an

opportunity to file a petition for writ of certiorari, recalled the

mandate, vacated the opinion filed September 19, 2013, and

reissued the opinion in its original form.

In the opinion, the panel affirmed a conviction for sexual

exploitation of a child and knowingly receiving child

pornography.

The panel held that 18 U.S.C. § 2251(a) does not require

the government to prove that the defendant had knowledge

that the materials used to produce child pornography had

traveled in interstate commerce.

The panel also held that the district court did not abuse its

discretion in admitting the defendant’s prior conviction for

possession of child pornography and that a rational jury could

conclude that the videos introduced at trial depicted sexually

explicit conduct.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. SHELDON 3

COUNSEL

Anthony R. Gallagher, David F. Ness, Federal Defenders,

Great Falls, Montana, for Defendant-Appellant.

Cyndee Peterson, Assistant United States Attorney, Missoula,

Montana, Billings, Montana, for Plaintiff-Appellee.

ORDER

Appellant’s motion for appropriate relief, filed March 11,

2014, seeks to give appellant an opportunity to file a petition

for writ of certiorari. We find that extraordinary

circumstances warrant such relief, see Wilkins v. United

States, 441 U.S. 468, 469–70 (1979), and we grant the

motion.

The mandate is recalled. Our opinion is vacated and

ordered reissued in its original form as of today’s date.

OPINION

CLIFTON, Circuit Judge:

Defendant Kevin Michael Sheldon appeals the jury

verdict finding him guilty of sexual exploitation of a child in

violation of 18 U.S.C. § 2251(a) and knowingly receiving

child pornography in violation of 18 U.S.C. § 2252A(a)(2). 

He argues that the district court erred in its interpretation of

§ 2251(a) because the court did not require the Government

to prove his knowledge of the interstate nature of his crime. 
4 UNITED STATES V. SHELDON

Our court has never directly addressed whether § 2251(a)

requires that the defendant have knowledge that the materials

used to produce child pornography had traveled in interstate

commerce. We hold that the statute contains no such

requirement.

Defendant also contends that the district court abused its

discretion at trial when the court admitted evidence of his

prior conviction for possession of child pornography, and that

his sexual exploitation of a child conviction must be set aside

because the evidence was insufficient for a rational jury to

find him guilty. Those arguments lack merit. We affirm.

I. Background

Defendant Sheldon lived with family members in

Montana. In September 2011, Defendant was told to move

out of the family home because he had inappropriately

touched a minor child. Shortly thereafter, the minor child’s

video recorder was found to contain several videos of

children naked, showering, and, in one instance, pretending

to perform oral sex on a teddy bear. The police were called

and obtained a warrant for Defendant’s home. Police

recovered Defendant’s computer and external hard drive,

which together contained 41 images of child pornography.

1

Defendant was charged with one count of sexual

exploitation of a child and one count of knowingly receiving

child pornography. He pleaded not guilty.

1 The Government conceded that Defendant never saw the videos made

by the minor children described in this case; they were not among the

pornographic images found on his computer equipment.
UNITED STATES V. SHELDON 5

Two female minor children testified at the jury trial that

Defendant, while still living with the family, showed the girls

pornography on the internet and told them to make their own

videos. He asked them to video themselves without clothing. 

The children recorded the videos and repeated some of the

sexual references they had heard on the internet pornography.

A jury found Defendant guilty on both counts. The

district court sentenced him to 480 months’ imprisonment.

II. Discussion

Defendant raises three challenges to his convictions. His

primary argument – and the primary subject of this opinion –

is that under 18 U.S.C. § 2251(a), the Government was

required to prove that he knew the materials used to produce

the child pornography had traveled in interstate commerce. 

We review a district court’s interpretation of a criminal

statute de novo. United States v. Dahl, 314 F.3d 976, 977

(9th Cir. 2002).

Our court has not directly addressed the legal question

Defendant raises regarding the mental state required under

§ 2251(a). We conclude that § 2251(a) does not require

knowledge of the interstate nature of the materials used to

produce the sexually explicit images.

Defendant’s argument fails under the plain language of

the statute. Section 2251(a) provides:

Any person who employs, uses, persuades,

induces, entices, or coerces any minor to

engage in . . . any sexually explicit conduct

for the purpose of producing any visual
6 UNITED STATES V. SHELDON

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 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. § 2251(a). The text can be better understood if

broken up into blocks:

Any person who employs, uses, persuades,

induces, entices, or coerces any minor to

engage in . . . any sexually explicit conduct

for the purpose of producing any 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 mailed,

if that visual depiction was produced or

transmitted using materials that have been
UNITED STATES V. SHELDON 7

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.

Viewed this way, the first clause of the statute defines the

crime, and the three remaining clauses define interstate or

foreign commerce elements that justify federal jurisdiction

over the crime.

Defendant argues that the language, “knows or has reason

to know,” from the first jurisdiction clause imputes a

knowledge requirement to the other two jurisdiction clauses

as well, neither of which contains similar language. But

Congress’s use of the word “or” at the beginning of the final

clause indicates that these are three independent alternatives. 

See In Re Pacific-Atlantic Trading Co., 64 F.3d 1292, 1302

(9th Cir. 1995) (“In construing a statute, a court should

interpret subsections written in the disjunctive as setting out

separate and distinct alternatives.”). Moreover, each of the

three jurisdiction clauses starts with “if,” and the “knows or

has reason to know” language comes after the “if” in the first

jurisdiction clause, not before it, indicating that it pertains

only to the first clause and not to the others.

We agree with the other circuit courts that have

previously considered this issue. Both the Fifth and Eleventh

Circuits have held that § 2251(a) does not require knowledge

as to the interstate nature of the crime. See United States v.
8 UNITED STATES V. SHELDON

Terrell, 700 F.3d 755, 759 (5th Cir. 2012) (holding that the

more natural reading of § 2251(a) “is that knowledge must be

proven only as to the first jurisdictional hook” because the

statute’s repetition of “if” before each clause indicates that

each clause is distinct); United States v. Smith, 459 F.3d

1276, 1289 (11th Cir. 2006) (“The text of the statute simply

does not provide a basis to conclude that knowledge of the

jurisdictional nexus is plainly required.”). The Eleventh

Circuit explained, “[t]he most natural reading of this

provision is that jurisdiction extends to child pornography

(1) produced with the intent that it eventually travel in

interstate commerce; (2) produced with materials that have

traveled in interstate commerce; or (3) that has traveled in

interstate commerce.” Smith, 459 F.3d at 1289. We conclude

that this interpretation of the statute is correct.

To satisfy the jurisdictional element of § 2251(a) in this

case, then, the Government was only required to prove

beyond a reasonable doubt that the child pornography was

produced with materials that had traveled in interstate

commerce. The Government elicited testimony at trial that

the recorder used to produce the videos in Montana was

manufactured in China. This evidence was sufficient to

satisfy the jurisdictional element of § 2251(a) under the

correct interpretation of the statute. Id.

Defendant’s two other challenges to his conviction are

foreclosed by the facts and our applicable precedent, so we

need not discuss them at length. Defendant argues that the

district court abused its discretion in admitting evidence of

Defendant’s 1998 conviction for possession of child

pornography. Rule of Evidence 414 provides that in a

criminal case alleging that a defendant committed child

molestation, a court may admit evidence that the defendant
UNITED STATES V. SHELDON 9

committed prior child molestation, including possession of

child pornography. Fed. R. Evid. 414(a), (d)(2). The

Government introduced only the sanitized record that

Defendant had been convicted of possession of child

pornography without disclosing to the jury the details of

Defendant’s conduct that resulted in the conviction. The

district court instructed the jury immediately thereafter that

they should only consider the evidence of the prior acts as

they relate to the particular charge in this case. Before

admitting the evidence, the district court properly considered

the non-exhaustive factors we set forth in United States v.

Lemay, 260 F.3d 1018, 1027 (9th Cir. 2001), and balanced the

probative value against the potential for unfair prejudice

under Federal Rule of Evidence 403. Based on the facts of

this case, Defendant’s prior conviction, and Defendant’s

arguments at trial, the district court did not abuse its

discretion in admitting Defendant’s prior conviction for

possession of child pornography.

Defendant also argues that the evidence admitted at trial

was insufficient to convict him of the sexual exploitation

count because the videos were not sexually explicit. 

Evidence is sufficient to support the conviction if, “after

viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.”

United States v. Garrido, 713 F.3d 985, 999 (9th Cir. 2013)

(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979))

(internal quotation marks omitted). An individual violates

§ 2251(a) if he “persuades, induces, entices, or coerces any

minor to engage in . . . any sexually explicit conduct for the

purpose of producing any visual depiction of such conduct[.]”

18 U.S.C. § 2251(a). Sexually explicit conduct is defined in

18 U.S.C. § 2256(2)(A) and includes “lascivious exhibition
10 UNITED STATES V. SHELDON

of the genitals[.]” Id at § 2256(2)(A)(v). The jury was shown

27 videos from a video recorder owned by one of the minor

children. Several of those videos depict the victims nude and

discussing sexual acts. Having reviewed the evidence

presented to the jury for ourselves, we conclude that a

rational trier of fact could have found the videos to depict

sexually explicit conduct. See United States v. Overton,

573 F.3d 679, 688 (9th Cir. 2009).

III. Conclusion

18 U.S.C. § 2251(a) does not require proof of a

defendant’s knowledge that the materials used to produce

depictions of sexually explicit conduct have traveled in

interstate commerce. The district court did not abuse its

discretion in admitting at trial Defendant’s prior conviction

for possession of child pornography. A rational jury could

conclude that the videos introduced at trial depicted sexually

explicit conduct. We therefore affirm.

AFFIRMED.