* This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### January 19, 2006
Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. LELAND DOYLE WOLLET, Defendant - Appellant. No. 03-5113 (N. D. Oklahoma) (D.Ct. Nos. 01-CV-540-H and 99-CR-158-H)

ORDER AND JUDGMENT *

Before O’BRIEN , HOLLOWAY , and TYMKOVICH , Circuit Judges.

The events that bring this matter before us began w hen Leland Doyle Wollet (“Wollet”) moved in with his son, Brian Woll et (“Brian”), in Bartlesville, Oklahoma, in December 1998. At that time, Brian ow ned a computer and had an account with America Online (AOL), an Internet serv ice provider. Because Brian had an AOL account, he could navigate the Internet with as many as seven different identities or screen names. Father and s on soon began to learn about the-2-

Internet and navigation techniques. During the ear ly part of 1999, Wollet, using Brian’s account, assumed the screen name “OKMI1.” In February 1999, because of various service problems, Brian cancelled his fi rst account and opened a new AOL account which lasted until some time in March. When Brian created the new account, Wollet assumed the new screen names “M IOK” and/or “MIOK52.” When exploring the Internet, Wollet gravitated to c hat rooms dealing with sex with young females, sex with family members andsex with animals. During Wollet’s chat room visits, he stumbled on to users who repeatedly wrote “list me” in their chat room conversations. Wollet soon disc overed that “list me” was Internet parlance chat room participants used to as k other participants to send them images or data. Wollet followed suit and bega n using the “list me” option. Consequently, he began receiving chat room-specific image files from other participants; e.g. , if he wrote “list me” in a chat room concerning s ex with children, he would receive pornographic images of c hildren having sex. At some point, Brian discovered a bestiality image on his computer hard drive and confronted his father. His father respon ded something to the effect that “do you really think they check on this, do you rea lly think they would know that we have this?” (R. Vol. V at 19.) Brian later dis covered a depiction involving child pornography. Brian made clear to his father he did not want to see any more such images on his computer. He told his father if he didn’t want to delete-3-

Internet material, he should save it to a disk. So me time after February, Brian found disks stored in his father’s briefcase next t o the computer. He formatted the disks, believing he was erasing the material th ey contained. During the course of one chat room visits, Wollet i nitiated a sexually explicit conversation with a person he believed to be a twelve-year-old girl, who was actually an officer with a federal Northeast Re gional Child Exploitation Task Force. As the result of a grand jury subpoena to A OL, FBI Agents Keith Kohne and Matthew Moosbrugger confronted Brian, the indiv idual on the account, concerning the identity of the OKMI1 screen name. Brian informed them the screen name belonged to his father and discussed th e pornographic images he had observed earlier. The following day, the same FBI agents approached W ollet, informed him of his Mirandarights and questioned him about the pornographic i mages associated with his AOL screen name. Soon after th e interview began, Wollet brought the agents eighteen diskettes, admitting ea ch had contained between six and twenty-five image files. Wollet also described how he obtained the images through chat rooms on AOL via the “list me” option and saved them to the diskettes. Wollet stated he labeled the diskettes according to the chat room from which he received the images. For example, the lab el “X” indicated that the disk contained pornographic images, “FAM” was indicative of images containing1 Since no new files were saved to the disks after being formatted, the data was not

lost. Agents were able to retrieve the data files using commercially available software. -4- family members having sex with one another, while “ Y” indicated the images involved children engaged in sexual activity. Agen t Kohne turned the disks over to Special Agent Joseph Cecchini who was able to re trieve many images thought to have been erased by formatting the disk. 1 On November 3, 1999, a grand jury indicted Wollet f or one count of possessing child pornography in violation of 18 U.S .C. § 2252(a)(4)(B). At trial in April of 2000, Agent Kohne testified to particip ating in numerous child exploitation cases and reviewing hundreds of child pornography images as part of his law enforcement duties. After testifying that he could identify whether a person was under age eighteen, he was asked by coun sel to estimate the ages of the children depicted in the images introduced at t rial. Agent Kohne identified and described over two dozen images of children eng aged in sexually explicit activity retrieved from Wollet’s diskettes. At the close of the government’s case, the court denied Wollet’s motion for judgment of ac quittal under Rule 29 of the Federal Rules of Criminal Proceedure. On April 18, 2000, following a two-day trial, the jury found Wollet guilty of possession o f child pornography. On July 5, 2000, Wollet was sentenced to thirty months imprisonment and2Wollet completed his imprisonment term and is currently serving his term of

supervised release.

3 While the parties do not contest the existence of Wollett’s waiver of appeal, it was not filed in the district court and has never been located. -5- three years supervised release. 2 During the sentencing hearing, Wollet was advised by the court of his right to appeal. He, i n turn, again asked his counsel if he could appeal. Final judgment was entered on Aug ust 4, 2000. The day before the notice of appeal was due, Wollet’s counsel aske d him if he wanted to appeal, although she again concluded there were no meritori ous issues for appeal. Wollet ultimately declined to appeal and, in fact, signed a waiver to that effect. 3 On July 25, 2001, Wollet filed a motion to correct or vacate his sentence pursuant to 28 U.S.C. § 2255. He later amended his motion to include a request that the court take judicial notice of the Supreme Court’s decision in Ashcroft v. Free Speech Coalition , 535 U.S. 234 (2002). On May 28, 2003, the distri ct court denied Wollet’s § 2255 motion and denied a certific ate of appealibilty (COA) pursuant to 28 U.S.C. § 2253(c). We granted a COA to review whether trial counsel wa s ineffective by failing to: (1) argue, either in district court or on direct appeal, that the government did not meet its burden of proof on the federal jurisdictional element of the statute under which Wollet was charged and c onvicted; (2) argue, either in district court or on direct appeal, that the statut e under which Wollet was charged4To the extent Wollet attempts to expand our review beyond the scope of our

COA, specifically to encompass counsel’s alleged lack of investigation and crossexamination, we decline to do so. 28 U.S.C. § 2253(c)(1)(A). -6- was unconstitutional; and (3) perfect a direct appe al, despite the presence of several meritorious appellate claims and Wollett’s clear desire to appeal his conviction and sentence. Reviewing Wollet’s ineffe ctive assistance of counsel claims de novo , Brewer v. Reynolds , 51 F.3d 1519, 1523 (10th Cir. 1995), we affirm. 4
DISCUSSION To prevail, Wollet must establish: (1) his trial co unsel’s performance was deficient; and (2) the deficient performance prejud iced him. See Strickland v. Washington , 466 U.S. 668, 687 (1984). We “may address the pe rformance and prejudice components in any order, but need not add ress both if [the defendant] fails to make a sufficient showing of one.” Cooks v. Ward, 165 F.3d 1283, 1292-93 (10th Cir. 1998). Here, we confine our ana lysis to the prejudice prong, which requires Wollet to “show that there is a reas onable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. (A) Jurisdictional Element Wollet claims his trial counsel was ineffective forfailing to argue at trial or on direct appeal that the Government did not satisf y the jurisdictional requirement-7-

of 18 U.S.C. § 2252(a)(4)(B), which penalizes: (a) Any person who– (4)(B) knowingly possesses 1 or more books, magazines, periodicals, films, video tapes, or other matterwhich contain any visual depiction that has been mailed, or has been shipped or transported in inter state 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 . . . .
(Emphasis added). Wollet contends that his case is very similar to th e situation in United States v. Wilson ,182 F.3d 737 (10th Cir. 1999), and its progeny. See United States v. Runyan , 290 F.3d 223, 240 (5th Cir. 2002); United States v. Henriques , 234 F.3d 263 (5th Cir. 2000). In Wilson , we held that circumstantial evidence which linked a visual depiction on a computer diske tte to interstate commerce could not also be used to similarly link two other diskettes. Wilson, 182 F.3d at 744. Thus, we held that to establish the jurisdict ional nexus under Section 2252(a)(4)(B), the government must independently sh ow that each visual depiction upon which a conviction is based had been transported in interstate or foreign commerce—in this case, via the Internet. Id. Our holding in Wilson was-8-

aimed at limiting the government's ability to build its case on inferences, e.g. , by analogizing that since one image was downloaded fro m the Internet, other images must also have been downloaded from the Internet. Here, however, the Wilson standard is altered in two important respects. First, we are confronted with a different § 2252(a) (4)(B) than was considered in Wilson . The government now only needs to prove that one rather than three visual depictions traveled in interstate commerce, obviating to an extent concerns that the Government could prove its case through i nferences based on a link to only one visual depiction. 18 U.S.C. § 2252(a)(4)( B). Second, in this case we have detailed testimony confirming Wollett’s admiss ion he received the images over the Internet and copied them to the diskettes. Unlike in Wilson , where the expert witness “offered no explanation . . . as to how those particular images found their way to the diskettes in defendant’s pos session,” here both Wollet’s direct admissions and his son’s testimony establish ed the pictures on those diskettes were the same pictures received via the I nternet. Although the official AOL records only contained information from January1999, Wollet’s admissions and his son’s testimony confirmed Wollet’s computeruse in February, when the files were created. The evidence contains no infer ence that someone else gave Wollet the diskettes, nor that the pornographic ima ges traveled any alternative path to his doorstep. The jury could rationally have concluded Wollet5 Wollet’s invocation of United States v. Henriques , 234 F.3d 263 (5th Cir. 2000),

is equally unavailing. While we do not argue with the applicable standard, the fifth circuit was confronted with a situation far different from the one presented here. There, the government premised its entire case on the notion that because pornographic images were on the defendant’s hard drive, and that computer was connected to the Internet, somebody

had to use the Internet to put them there. Henriques , 234 F.3d at 266. The fifth circuit held this was insufficient to prove the defendant was criminally responsible for the images. Id. at 267. -9- downloaded the images from the Internet to the disk ettes and thus, the images (the graphic files) traveled in interstate commerce. 5 See United States v. Bass , 411 F.3d 1198, 1202 (10th Cir. 2005); United States v. Kimler , 335 F.3d 1132, 1139 n.7 (10th Cir.) (geographical location of children depicted in images irrelevant; defendant’s receipt of images over Internet establi shed interstate commerce element), cert. denied, 540 U.S. 1083 (2003); Wilson , 182 F.3d at 744, n.4. As a result, the jurisdictional element was satisfied. Had Wollet’s attorney raised this argument at trial or on appeal, the outcome of his case would not have been different. (B) Unconstitutionality of statute Next, we consider Wollet’s claims that trial counse l was ineffective in failing to argue at trial or on direct appeal that the statute under which Wollet was charged was unconstitutional, for the same reasons the Supreme Court struck down 18 U.S.C. §§ 2256(8)(B) and (8)(D) in Ashcroft v. Free Speech Coalition , 535 U.S. 234 (2002) (concerning the constitutionali ty of entirely virtual child-10-

pornography). We find the argument wholly without merit.
In Free Speech Coalition , the Supreme Court considered the constitutionality of 18 U.S.C. § 2256(8)(B), and § 2256(8)(D). Section 2256(8)(B) prohibited "any visual depiction, includ ing any photograph, film, video, picture, or computer or computer-generated i mage or picture" that "is, or appears to be, of a minor engaging in sexually expl icit conduct." Free Speech Coalition , 535 U.S. at 241, quoting18 U.S.C. § 2256(8)(B). “The section capture[d] a range of depictions, sometimes called ‘virtual child pornography,’ which include[d] computer-generated images, as well as images produced by more traditional means.” Id . Section 2256(8)(D) defined child pornography as including, inter alia , any sexually explicit image that was “‘advertised , promoted, presented, described, or distributed in such a mann er that conveys the impression’ it depicts ‘a minor engaging in sexually explicit c onduct.’” Free Speech Coalition , 535 U.S. at 242, quoting18 U.S.C. § 2256(8)(D). The Court determined that § 2256(8)(B) prohibited materials that neither met the obscenity test under Miller v. California , 413 U.S. 15 (1973), nor qualified as child pornography, “which may be banned without regard to whether it depicts works of value,” under New York v. Ferber , 458 U.S. 747, 761 (1982). Free Speech Coalition , 535 U.S. at 249. The Court further determined th at Section 2256(8)(D)’s “conveys the impression” language coul d criminalize content that-11-

was not child pornography, but merely appeared to b e, thus exceeding the limits of Ginzburg v. United States , 383 U.S. 463 (1966) (allowing restrictions on the commercial exploitation of erotica when done solely for the sake of prurient appeal). Free Speech Coalition , 535 U.S. at 257-58. Consequently, the Court concluded these provisions were overbroad and an un constitutional abridgement of speech. Wollet was charged with violating 18 U.S.C. § 2252( a)(4)(B). Although the substantive provision pursuant to which Wollettwas convicted, 18 U.S.C. § 2252(a)(4)(B), does refer to the definitions set fo rth in 18 U.S.C. § 2256, the two specific phrases deemed unconstitutional in Free Speech Coalition were not relevant to the issues at Wollet’s trial. The jury instructions clearly required the jury to find beyond a reasonable doubt that Wollet “knowingly . . . possessed one or more matters containing visual depictions . . . [that] involved the use of a minor engaged in sexually explicit conduct; [t]hat such visual depictions were of minors engaged in sexually explicit conduct; and . . . [Wollet] knew . . . that at least one of the performers . . . was a minor engag ed in sexually explicit conduct.” (R. Vol. 1, Doc. 25 at 20.) Thus, there is no question the jury was instructed to find that an actual minor, not an “ap parent” or “virtual” child, was the subject of the visual depictions Wollet possess ed. The Supreme Court’s ruling in Free Speech Coalition is inapplicable to a situation such as this, where6 It appears Wollet’s entire Free Speech Coalitionargument hinges on the

government’s repeated use of the word “appear” in its examination of the FBI agents at trial. The government’s inquiry was focused solely on the ages of children contained in the depictions; its inquiry was not designed as an apocryphal way in which to examine whether the children depicted were somehow virtual in nature, as Wollet would lead us to believe. -12- the allegations and evidence concern the interstate dissemination of pornographic images involving real children. 6 As a result, Wollet was not prejudiced by counsel’s failure to raise this argument. (C) Failure to Appeal Last, we consider Wollet’s claim that trial counsel was ineffective for failing to perfect a direct appeal, despite the pre sence of several appellate claims and Wollet’s clear desire to appeal his conviction and sentence. We have long observed that a defendant’s right to effective assi stance of counsel applies not just at trial but also on direct appeal. Abels v. Kaiser, 913 F.2d 821, 822 (10th Cir. 1990); see also Evitts v. Lucey , 469 U.S. 387, 396 (1985) (“A first appeal as of right . . . is not adjudicated in accord with du e process of law if the appellant does not have the effective assistance of an attorn ey.”). Moreover, we have held where a defendant claims that his counsel was ineff ective for failing to perfect an appeal, he need only satisfy the first prong of the Strickland test—that counsel’s performance fell below an objective standard of rea sonableness. Abels , 913 F.2d at 823. In reviewing such claims, we “do not consi der the merits of arguments-13-

that the defendant might have made on appeal.” Id. Instead, “prejudice is presumed.” Hannon v. Maschner , 845 F.2d 1553, 1558 (10th Cir. 1988). Undoubtedly, counsel must explain the advantages an d disadvantages of an appeal to his client. United States v. Garrett , 402 F.3d 1262, 1265 n.4 (10th Cir. 2005); Baker v. Kaiser , 929 F.2d 1495, 1499 (10th Cir. 1991). Wollet complains his trial counsel admitted she did not advise him o f the option of filing a brief under the holding in Anders v. California , 386 U.S. 738 (1967). “However, if counsel reasonably believes that there are no merit orious grounds for an appeal, advises a defendant not to appeal on that basis, fu rther advises him that he has a right to appeal regardless, and then acts in accord ance with defendant’s decision to waive an appeal, [counsel’s] performance cannot be considered deficient. ” United States v. Lopez , 100 F.3d 113, 119 (10th Cir. 1996). Wollet’s own assertions reflect that every request he made to counsel to review the case was answered with both a commitmentto investigate as well as a corresponding conclusion that there were no meritor ious grounds for appeal. Nonetheless, counsel inquired if Wollet wanted to f ile an appeal, but he declined. He does not contend he instructed his attorney to appeal. He signed and filed a waiver of appeal. Thus, despite his claimed heartf elt desire to appeal, we cannot conclude his counsel’s performance was deficient.
CONCLUSION-14-

For the foregoing reasons, the decision of the district court is AFFIRMED

.

Entered by the Court: Terrence L. O’Brien United States Circuit Judge