1

The Honorable David R. Hansen stepped down as Chief Judge of the United

States Court of Appeals for the Eighth Circuit at the close of business on March 31,

2003. He has been succeeded by the Honorable James B. Loken.

2

The Honorable George Howard, Jr., United States District Judge for the

Eastern District of Arkansas.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 02-2158

___________

United States of America, *

*

Appellee, *

*

v. * Appeal from the United States

* District Court for the

Christopher Shawn Deaton, * Eastern District of Arkansas.

*

Appellant. * [Published]

___________

 Submitted: March 11, 2003

 Filed: May 9, 2003

___________

Before HANSEN,1

 Chief Judge, RILEY, and MELLOY, Circuit Judges.

___________

PER CURIAM.

In this direct criminal appeal, Christopher Shawn Deaton challenges the

judgment entered by the district court2

 upon a jury verdict finding him guilty of

possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). The

district court sentenced Deaton to 57 months imprisonment and 3 years supervised
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release, having applied, as relevant, a 2-level adjustment to Deaton’s base offense

level under the Sentencing Guidelines because the offense involved the possession

of images of prepubescent minors, or minors younger than age 12. For reversal,

Deaton argues (1) the district court committed plain error in failing to consider the

Supreme Court’s decision in Ashcroft v. Free Speech Coalition, 122 S. Ct. 1389

(2002), because there was no proof offered at trial that the images on his computer

depicted actual children; (2) the district court erred in applying the 2-level

enhancement under section 2G2.2(b)(1), because there was no proof that the images

depicted real children under age 12; and (3) the district court erred in denying

Deaton’s motion to suppress incriminating statements he made to a federal agent. For

the reasons that follow, we affirm.

In Ashcroft v. Free Speech Coalition, the Supreme Court struck down, as

overbroad and unconstitutional, portions of the Child Pornography Prevention Act

of 1996. See id. at 1406. In particular, the Court addressed 18 U.S.C. § 2256(8)(B),

which prohibits any visual depiction, including a computer-generated image, that “is,

or appears to be, of a minor engaging in sexually explicit conduct,” and 18 U.S.C.

§ 2256(8)(D), which prohibits any sexually explicit image that was “advertised,

promoted, presented, described, or distributed in such a manner that conveys the

impression” of depicting “a minor engaging in sexually explicit conduct.” See id. at

1396-1406. An element of the statute under which Deaton was convicted, however,

is that production of the prohibited material in the defendant’s possession involved

the sexual exploitation of a minor. See 18 U.S.C. § 2252(a)(4)(B)(i); United States

v. Chrobak, 289 F.3d 1043, 1046 n.3 (8th Cir. 2002) (noting that § 2252 was not held

invalid in Ashcroft v. Free Speech). In this case, the jury was not instructed that it

could find Deaton guilty if the images found on his computer “appeared” to be child

pornography. Instead, the jury was instructed that it needed to find that production

of the images involved the use of a minor. Further, we have previously upheld a

jury’s conclusion that real children were depicted even where the images themselves

were the only evidence the government presented on the subject. See United States
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v. Vig, 167 F.3d 443, 449-50 (8th Cir.) (government, as part of affirmative case, was

not required to negate unsupported speculation that images may have been computergenerated or other than what they appeared to be), cert. denied, 528 U.S. 859 (1999).

Having viewed the exhibits, we find no plain error. See United States v. Montanye,

996 F.2d 190, 192 (8th Cir. 1993) (en banc) (standard of review; for error to be

“plain,” it must be “clear under current law”). 

As to Deaton’s argument that the 2-level enhancement under section

2G2.2(b)(1) could not be imposed absent proof that the images involved actual

children under age 12, we likewise affirm the district court’s ruling as not erroneous.

See United States v. Parker, 267 F.3d 839, 846-47 (8th Cir. 2001) (standard of

review), cert. denied, 122 S. Ct. 1592 (2002). The pictures themselves support the

district court’s determination that the images were plainly of children under age 12,

and depicted actual children. See Vig, 167 F.3d at 449-50. 

Finally, reviewing for clear error the factual findings underlying the district

court’s determination that Deaton was not “in custody” when he was interviewed by

and made certain statements to a federal agent, and independently applying the

controlling legal standard to the historical facts, see United States v. Axsom, 289 F.3d

496, 500 (8th Cir. 2002) (standard of review), we agree with the district court’s

finding at the conclusion of the suppression hearing that Deaton had not been

subjected to a custodial interrogation. In particular, Deaton acknowledged being

informed he was not under arrest, he was told he could drive his own car to the bank

and then his shop, and he characterized the agent’s questioning of him as polite.

Absent any evidence that strong-arm tactics were used during the 25-30 minute

interview, or other indicia that a custodial interrogation took place--and we see none--

we must reject Deaton’s argument that his statements should have been suppressed.

See Axsom, 289 F.3d at 500-02 (discussing indicia of custodial interrogation).

Accordingly, we affirm.
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.