F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v

.

K E V I N M I C H A E L S H E LD O N , D efendant-Appellant

. No. 12-30324

D.C. No. 6:12-cr-00010-CCL -1

ORDER AND OPI NI ON

A ppeal from the United States District Court for the District of Montana Charles C. L ovell, Senior District J udg e, Presiding

Submitted Aug ust 26, 2013 * Seattle, W a shing ton

F iled April 9, 2014

B efore: Michael Daly

Hawkins, M. Marg aret McKeown,

a nd Richard R. Clifton, Circuit J udg es.

Order; Opinion by

J udg e Clifton

* T h e p an el un a n i m o u sl y co n clu d es th is case is su itab le f o r d ecisio n

w ith o u t o ral arg u

m en t. S ee Fed . R. A pp . P . 3 4 (a)(2 ).U N I T E D S T A T E S V

. S H E LD O N 2

SUMMARY * *

Crim inal Law

The panel g ra n t ed the defendant’s motion for an opportunity to file a petition for writ o f certiorari, recalled the mandate, vacated the opinion filed September 19, 2013, and reissued the opinion in its orig inal form.

I n the opinion, the p anel affirmed a conviction for sex ual

ex p loitation of a child and knowing ly receiving chi ld pornog raphy

.
The panel held that 18 U.S.C. § 2251(a) does n ot require the g overnment to prove that the defe n d ant had knowledg e that the materials used to produce child pornog raphy h ad traveled in interstate commerce.

The panel also held that the district court did not abuse its discretion in admitting the defendant’s prio r conviction for possession of child pornog r aphy and that a rational jury could conclude that the videos introduced at trial depicted sex ually

ex p licit conduct.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co urt. It h as b een p rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. S H E LD O N 3

COUNSEL

Anthony R. Gallagh e r , David F

. Ness, F ederal D efenders, Great F alls, Montana, for Defendant-Appellant.

Cy ndee Peterson, Assistant United States Attorney
, M i s s o u l a , Montana, B illing s, Montana, for Plaintiff-Appellee.

ORDER

Appellant’s motion for appropriate relief, filed March 11, 2014, seeks to g ive appellant an opportunity to file a petition for writ of certiorari. W e find that ex traordinary circumstances warrant such relief, s e e W ilkins v. United States
, 441 U.S. 468, 469–70 (1979 )
, a n d we g rant the motion.

The mandate is recalled. Our o p i n i o n is v a cated a nd ordered reissued in its orig inal form as of today ’s date.

OP INION

CL I F TON, Circuit J udg e :

Defendant Kevin Michael S h eldon appeals the jury verdict finding him g uilty of sex ual e x ploitation of a child in violation of 18 U.S.C. § 2 251(a) and k n o wi ng ly r eceiving child p ornog raphy in violation of 18 U.S.C. § 225 2 A(a)(2). He a rg ues that the district court erred in its interpretation o f § 2251(a) because the c ourt did not r equire the G o v ernment to prove his knowledg e of the in t e r s t a t e nature of his crime.U N I T E D S T A T E S V

. S H E LD O N 4

Our court has never directly addressed wh e t h e r § 2251(a) requires that the defendant have knowledg e that the materials used to produce child pornog r aphy had traveled in interstate

co m m e rc e

. W e hold that the statute contains no such requirement.

Defendant also contends that the district court abused its discretion at tr i al when the court admitted evidence of his prior conviction for possession of child pornog raphy
, and that his sex ual ex ploitation of a child conviction must be set aside because the evidence was in sufficient for a r ational jury to find him g uilty . Those arg uments lack merit. W e affirm.

I. Background

Defendant Sheldon lived with family members in Montana. I n September 2011, Defen d a n t w as told to move out of the family home because he had inappro p r iately touched a minor child. Shortly thereafter, the minor c hild’s video reco r d e r was f

ound to contain several videos o f children naked, showering
, a nd, in o n e i nstance, pretending to perform oral sex on a teddy b e a r

. T h e police w ere called and obtained a warrant for Defendant’s home. Police recovered De fendant’s computer and ex ternal hard drive, which tog ether contained 41 imag es of child pornog raphy

. 1

Defendant w as charg ed with one count of sex ual

ex p loitation of a child and o ne count o f k nowing ly r eceiving child pornog raphy . He pleaded not g u ilty

.

1 T h e Go v ern m en t co n ced ed th at Def en d an t n ev er saw th e v id eo s m ad e b y th e m in or ch ild r e n d e s c r i b ed in t h is case; th ey w ere n o t am o n g th e p o rn o g rap h ic im ag es f

o un d o n h is co m p u ter eq u ip m en t.U N I T E D S T A T E S V

. S H E LD O N 5

T wo female minor children testified at the jury trial tha t Defendant, while still living w ith the family
, showed the g irls pornog raphy on the internet a n d told them to make their o wn videos. He asked them to video themselves without clothing

. The children recorded th e videos and repeated some o f the

sex ual references they had heard on the internet pornog raphy

.

A jury found Defendant g uilty on both counts. The district court sentenced him to 480 months’ imprisonment.

II. Discussion

Defendant raises three challeng es to his convictions. His primary arg ument – 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 pornog raphy had traveled in int e r s t a te commerce. W e r eview a district court’s interpre tation of a criminal statute de novo. United States v

. Dahl
, 3 1 4 F.3d 976, 977 (9th Cir. 2002).

Our court has not directly addressed the leg al question Defendant raises reg arding the ment a l state required under § 2251(a). W e conclude that § 2251(a) does not require knowledg e of the interst a t e nature of the materials u sed to produce the sex ually

ex plicit imag es.

De fendant’s arg ument fails under the plain lang uag e o f the statute. Section 2251(a) provides:

Any person w ho employ s, u se s , persuades, i n d uces, entices, or coerces any minor t o eng ag e in

. . . a

ny se x u a l l y ex plicit conduct for the purpose o f producing any visualU N I T E D S T A T E S V

. S H E LD O N 6

depiction of such c o n duct

. . . shall be punished as provided u nder subsection (e), if such person knows or has reason to know that such visual de p iction will be transported o r tra n s m itted u sing any means or facility o f interstate or foreig n commerce

. . . or mailed, if that v isual depiction was produced o r transmitted u sing materials that have been mailed, shipped, or transported in or affecting interstate or foreig n commerce by any means, including by computer, o r i f s uch visual depiction h as actually b een transported o r t r a nsmitted using a

n y means o r facility o f interstat e or foreig n c ommerce or in o r affecting interstate or foreig n commerce o r mailed.

18 U.S.C. § 2251(a). T h e tex t c a n be b e t t er understood if broken up into blocks:

Any person w ho employ s, u ses, persuad e s, i nduces, entices, or coerces any mino r t o

e n gag e in

. . . any sex u ally ex plicit cond u ct for the purpose of p roducing any visual depiction of such c o n duct

. . . shall be punished as provided under subsection (e),

i f such person knows o r has reason to k n o w that such visual depiction will be transporte d

or transmitted using any means o r fac i l i t y o f interstate or foreig n commerce

. . . or mailed,

if that visual de p i ction was produced o r transmitted using ma t erials that have beenU N I T E D S T A T E S V

. S H E LD O N 7

mailed, shipped, or transported in or affecting interstate or foreig n c ommerce by any means, including by

computer,

or if such v i s u a l depiction h as actually been transported or transmitted using any means o r facility of interstate or foreig n commerce or in

or affecting interstate or foreig n commerce o r mailed.

Viewed this w ay , the f

irst c l a u s e o f the statute d efines the crim e , and the three remaining clauses define interstate o r f o r e ig n commerce elements that justify federal jurisdiction over the crime.

Defendant arg ues that the lang uag e, “knows or has reason to k n ow,” from the first jurisdiction clause imputes a knowledg e requirement to the other two jurisdiction clauses

as well, neither of which contains similar lang uag e. B ut Cong r ess’s use of the word “or” at the beg inning of the final clause indicates that these a re three independent alternatives. See In Re P acific-Atlantic Trading C o

. , 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 d istinct alternatives.”). Moreover, each of the
t h r e e jurisdiction clauses starts with “if,” and the “knows or has reason to know” lang uag e comes after the “if” in the first jurisdiction clause, not before it, in d i c a t ing that it pertains only to the first clause and not to the others.

W e ag ree wi t h the other circuit courts that have previously considered this issue. B oth the F ifth and Eleventh Circuits have h eld that § 2251(a) does not require knowledg e

as to the interstate nature of the c r ime. See United States v

.U N I T E D S T A T E S V

. S H E LD O N 8

Terrell
, 700 F

. 3d 7 5 5
, 759 (5th Cir. 2012) (holding that the

more natural reading of § 2251(a) “is that knowledg e must be proven o n l y as to the first jurisdictional hook” because the statute’s re p e t i t ion of “ if” before each clause indicates that each clause is distinct); United States v. Smith
, 459 F. 3 d 1276, 1289 ( 11th Cir. 2006) (“The tex t of the statute simply does not p rovide a basis to conclude that knowledg e of the jurisdictional nex u s is pla i n ly required.”). The Eleventh Circuit ex p lained, “ [ t] he most natural reading of this provision is that jurisdiction ex tends to child pornog raphy (1) produced with the intent t h at it eventually travel in interstate commerce; (2) produced with materia l s t hat have traveled in inter s t a t e commerce; or (3) that has traveled in interstate commerce.” Smith
, 459 F .3d at 1289. W e conclude that this interpretation of the statute is correct.

To satisfy the jurisdictional element of § 2 2 5 1(a) in this
case, then, the Government was only required t o prove bey ond a reasonable doubt that the c hil d p o r nog raphy was produced with materials that had traveled in in t e rs t ate

commerce. The Government elicited te s t i m ony at trial that the recorder u s e d t o produce the videos in Montana was manufactured in China. This evidence was sufficient to satisfy the jurisdictional element of § 2251(a) u nder the correct interpretation of the statute. Id.

Defendant’s two other challeng es to his c onvictio n a r e foreclosed by t h e f

acts and our a

p plicable precedent, so we need not dis c u ss them at leng th. Defendant arg ues that the district court a

bused its discretion i n a d mitting evidence o f Defendant’s 1 998 convictio n for possession of child pornog raphy

. Rule of Evidence 414 provides that in a

cr i m i nal case alleg ing that a defendant committed child molestation, a court may admit evidence that the defendantU N I T E D S T A T E S V

. S H E LD O N 9

committed prior child molestation, including possession o f child pornog raphy

. F ed. R. Evid. 41 4 ( a )
, ( d)(2). The Government introduced only the sanitiz ed re c o rd that Defendant h ad been convicted of p ossession of child pornog raphy without disc l o s i n g to the jury the details o f Defendant’s conduct that resulted in the conviction. The district court instructed the jury immediately t h e r eafter that they should only c o n s i d er the evidence of the prior a cts a s they r elate to the particular charg e in this case

. Before admitting the evidence, the d istrict court properly considered the non

- ex haustive factors we set forth in United States v

. Lemay
, 260 F

. 3d 1018, 1027 (9th Cir. 2001), and balanced the probative value ag ainst the potential for unf a i r p rejudice under F ederal Rule of Evidence 403. B ased o n the facts o f this c ase, D efendant’s p rior conviction, and Defendant’s arg uments at trial, the distri c t court did not abuse its discretion in admitting Defendant ’s prior conviction for possession of child pornog raphy

.
Defendant also arg u es that the evidence admitted at trial

was insufficient to convict him of th e sex ual ex ploitation count because the videos were not sex ually e x p l i cit. Evidence is sufficient to supp o r t t h e conviction if, “after viewing the e v i d e n ce in the lig ht most favorable to the prosecution, any rational trier of fact could have found the essential elements o f t he crime b ey ond a reasonable doubt.” United S tates v

. G a r r i do
, 713 F .3d 985, 999 (9th Cir. 2 013) (quoting Jackson v. Virginia
, 44 3 U.S. 307, 3 1 9 (1979)) (internal qu o t a t i on marks o mitted). An individual violates § 2251(a) if he “persuades, induces, entices, or coe r c e s a n y minor to eng ag e i n

. . . a n y sex ually ex plicit conduct for the purpose o f producing any visual depiction of such conduct[ .] ” 18 U.S.C. § 2251(a). Sex ually ex plicit c onduct is defined in 18 U.S.C. § 2256(2)(A) a n d includes “lascivious e x h ibitionU N I T E D S T A T E S V

. S H E LD O N 10

of the g e nitals[ .] ” I

d a t § 2256(2)(A)(v). The jury w as shown 27 videos from a video recorder owned by one of the minor children. Several of those v ideos depict the victims nude a nd discussing sex ual a cts. Having reviewed the evidence presented to the jury for o u r s elves, we c onclude that a

r ational trier of fact c o uld have found the videos t o d e p i ct

sex ually ex p licit conduct. S ee United States v. Overton
, 573 F .3d 679, 688 (9th Cir. 2009).

III. Conclusion

18 U.S.C. § 2251(a) does not require p r o o f o f a defendant’s knowledg e t h a t the materials used to produce depictions of sex u ally ex plicit conduct have traveled in interstate commerce. The district court did not abuse its discretion in a d m i t ting at trial Defendant’s prior conviction for possession of child pornog raphy

. A rational j u r y could conclude that the videos introduced at trial depicted sex ually

ex p licit conduct. W e therefore affirm.

AF F IRMED

.