UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-4623

ALAN D. TANNER,

Defendant-Appellant. 

Appeal from the United States District Court

for the Southern District of West Virginia, at Charleston.

Charles H. Haden II, District Judge.

(CR-01-145)

Submitted: April 23, 2003

Decided: May 15, 2003

Before WILLIAMS, MOTZ, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Mary Lou Newberger, Federal Public Defender, Brian J. Kornbrath,

Assistant Federal Public Defender, Charleston, West Virginia, for

Appellant. Kasey Warner, United States Attorney, R. Booth Goodwin, II, Assistant United States Attorney, Larry R. Ellis, Assistant

United States Attorney, Charleston, West Virginia, for Appellee. 
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Alan D. Tanner was convicted by a jury of receiving child pornography, 18 U.S.C. § 2252A(a)(2)(A) (2000), and possession of child

pornography, 18 U.S.C. § 2252A(a)(5)(B) (2000). He was sentenced

to a seventy-eight month term of imprisonment. We affirm Tanner’s

conviction and sentence. 

Tanner raises two issues on appeal. First he asserts the district court

erred in its denial of his motion to suppress the statements he made

at a non-custodial interview. Tanner asserts the promise made by Federal Bureau of Investigation Special Agent Smith — that he would

not pursue child pornography charges if Tanner told the truth about

the child molestation allegations made against Tanner — rendered

statements made by Tanner involuntary. We conclude the district

court properly considered the totality of the circumstances and found

no coercion in the setting of the interview; Tanner was not confined

or physically coerced, he was allowed to go outside to smoke, and the

interview room door was open during the interview. See United States

v. Braxton, 112 F.3d 777, 785 (4th Cir. 1997). The court further found

Tanner’s statements regarding the pornography made at the end of the

interview were not coerced, there was no evidence his will was overborne, and his capacity for self-determination was not critically

impaired. Id. at 780-81. It is clear that Tanner incriminated himself

with regard to the child pornography after Smith told him that he

found Tanner’s statements regarding the molestation charge to be

untruthful, and after Smith informed Tanner that he would be following up on the child pornography issue. Because Tanner’s statements

were voluntarily made with knowledge that the child pornography

matter had not been put to rest, and because the circumstances of the

interview do not demonstrate that Tanner’s will was overborne, the

district court did not err in denying the motion to suppress the statements. 

2 UNITED STATES v. TANNER
Tanner’s second assertion of error is that the jury instruction

offered on the definition of child pornography was plainly erroneous

and the case should be remanded for a new trial. This claim fails to

meet the plain error standard. See Fed. R. Crim. P. 52(b); United

States v. Olano, 507 U.S. 725, 731-32 (1993).1 The jury instruction

given by the district court was proper at the time of trial. See United

States v. Mento, 231 F.3d 912 (4th Cir. 2000), vacated, 535 U.S. 1014

(2002). Prior to this appeal, however, the United States Supreme

Court held that prohibitions on virtual child pornography, as contained in § 2256(8)(B) and relied on by the district court in its instruction, were overbroad and unconstitutional. Ashcroft v. Free Speech

Coalition, 535 U.S. 234 (2002).2 This court reviews for plain error

when a substantive change in law occurred between conviction and

appeal. Johnson v. United States, 520 U.S. 461 (1997). 

In light of Ashcroft, we find that the jury instruction was erroneous

and that the error was plain. United States v. Hastings, 134 F.3d 235,

239-40 (4th Cir. 1998). To meet the third prong of the plain error

analysis, Tanner must establish that the error affected his substantial

rights. This he cannot do. Misinstruction to the jury does not fall into

the narrow category of errors that automatically satisfy the third prong

of the plain error analysis, irrespective of the defendant’s ability to

establish prejudice. Id. at 240-41. Moreover, at trial, the parties

entered a stipulation that stated, "the individuals depicted in those

seven computer graphic image files charged in this indictment [ ] are

minor children under the age of eighteen years of age." (JA 73). A

defendant may not argue on appeal that a stipulation is insufficient to

1Four conditions must be met before this Court will notice plain error:

(1) there must be error; (2) it must be plain under current law; (3) it must

affect substantial rights, typically meaning that the defendant is prejudiced by the error in that it affected the outcome of the proceedings; and

(4) the error must seriously affect the fairness, integrity, or public reputation of judicial proceedings. See Olano, 507 U.S. at 733-37; United

States v. Rolle, 204 F.3d 133, 138 (4th Cir. 2000). 

2Section 2256(8)(B) defines child pornography as any visual depiction

where "such visual depiction is, or appears to be, of a minor engaging in

sexually explicit conduct." The Supreme Court found the phrase "or

appears to be" an unconstitutional abridgement of First Amendment freedom to present virtual images of child pornography. 

UNITED STATES v. TANNER 3
prove beyond a reasonable doubt the facts or elements to which he

has stipulated. United States v. Muse, 83 F.3d 672, 679 (4th Cir.

1996). In order for Tanner to establish actual prejudice he must demonstrate the erroneous "appears to be" instruction resulted in his conviction. Hastings, 134 F.3d at 243-44. We find the third prong of the

plain error test is not satisfied because Tanner stipulated to the fact

the individuals in the images were children under the age of eighteen,

and he does not attempt to meet his burden of showing the jury relied

on the erroneous "appears to be" instruction to find him guilty of the

charges appealed. 

Accordingly, we affirm Tanner’s conviction and sentence. We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not significantly aid the decisional process. 

AFFIRMED

4 UNITED STATES v. TANNER