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http://laws.findlaw.com/9th/9930101.html |
Office of the Circuit Executive
U.S. Court of Appeals for the Ninth Circuit
Case Name:
USA V HAY
Case Number:
Date Filed:
99-30101
10/24/00
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
No. 99-30101
Plaintiff-Appellee,
D.C. No.
v.
CR-98-00340-BJR
ALEXANDER MONTAGU HAY,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
Barbara J. Rothstein, Chief District Judge Presiding
Argued and Submitted
May 3, 2000--Seattle, Washington
Filed October 24, 2000
Before: Pamela Ann Rymer and Thomas G. Nelson,
Circuit Judges, and James R. Browning, District Judge.*
Opinion by Judge Rymer
_________________________________________________________________
COUNSEL
Jonathan S. Solovy, Bell, Flegenheimer & Solovy, Seattle,
Washington, for the defendant-appellant.
Floyd G. Short, Assistant United States Attorney, Seattle,
Washington, for the plaintiff-appellee.
_________________________________________________________________
OPINION
RYMER, Circuit Judge:
Alexander Hay appeals his conviction following a jury trial
for possession and distribution of child pornography by means
of a computer. Hay contends that the search of his entire com-
puter system based on a seven-minute, six-month old trans-
mission of 19 images of child pornography was unreasonable;
he faults the district court for allowing the jury to view three
13392
exhibits containing child pornography; and he submits that his
conviction is invalid under our recent decision in Free Speech
Coalition v. Reno, 198 F.3d 1083 (9th Cir. 1999). We dis-
agree, and affirm.
I
Dr. Blair Evans was arrested on November 29, 1996 in
Ontario, Canada for trafficking in child pornography. He had
more than 20,000 computer graphic images of child pornogra-
phy and was actively trading and exchanging child pornogra-
phy with individuals in the United States through the Internet.
According to the File Transfer Protocol (FTP)2 log in Evans's
computer, two days before his arrest he transmitted 19 graph-
ics files (including images depicting an adult male and a pre-
pubescent girl of about five years engaging in sexual conduct)
from his computer to a computer with the Internet address of
128.95.25.1. The Internet address 128.95.25.1 -- a unique
identifier assigned to a specific computer connected to the
Internet -- was affiliated with the University of Washington.
On February 27, 1997, Ontario police provided this infor-
mation to the United States Customs Service attache in Can-
ada. On March 11, 1997, the attache forwarded it to the
Customs office in Seattle, Washington. Pursuant to a Grand
Jury Subpoena issued in the Western District of Washington,
the University of Washington informed Customs that the
Internet address to which Evans sent the images was assigned
to a computer within the University's Steven's Court housing
facility. The University further advised Customs that this
Internet address was associated with a particular Ethernet
interface address (00C0F009C4DE) -- a unique identifier for
a network card plugged into a computer. This Ethernet inter-
face address was also associated with a second Internet
address (128.95.25.203) which the University had assigned to
Alexander Hay, an Electrical Engineering major. Both Inter-
_________________________________________________________________
2 FTP is a method of directly transferring files between two computers.
13393
net addresses were associated with a network port wired to the
Steven's Court apartment occupied by Hay. University
records showed that the computer in this apartment was con-
figured sometimes to use the address 128.95.25.1 and other
times to use the address 128.95.25.203.
The University also informed Customs agents of Hay's web
site, which Customs Special Agent David Galante accessed
on April 23, 1997. On it, Hay described extensive contacts
with children, including teaching skiing to preschoolers,
working as a preschool day camp counselor, babysitting, vol-
unteering as a YMCA swim instructor for preschoolers, work-
ing with a four-year old autistic girl, and spending 400 hours
as a volunteer in early primary school classrooms.
On May 5, 1997, Customs Special Agent Kristina Laider
made an undercover telephone call to Hay at his apartment.
The person who answered identified himself as Hay. Laider
said she was conducting a computer usage survey and in
response to her questions, Hay stated that he owned a com-
puter and kept it in his apartment; that he had an Ethernet
card; that he currently used the University of Washington as
an Internet Service Provider; and that he was the only user of
his computer.
Galante made out a search warrant affidavit which stated
that the 19 images sent by Evans were likely to be found in
Hay's computer, described how traders and collectors of child
pornography interact over the Internet, and explained that
forensic experts could recover even deleted files. On May 28,
1997, a United States Magistrate Judge approved Galante's
application and issued a warrant to search Hay's apartment
and to seize Hay's computer hardware, software, records,
instructions or documentation, and depictions of child pornog-
raphy. Agents executing the warrant on May 29, 1997 at
Hay's apartment seized his computer along with seven Zip
cartridges labeled "Linux Backup," software, computer disks,
and video tapes. One of the two hard drives on Hay's com-
13394
puter contained hundreds of computer graphics files depicting
sexually explicit conduct involving minors, including "thumb-
nails" which enable the viewer to see multiple pictures simul-
taneously on the same screen, and an FTP log recording about
50 transactions with Evans.
After Hay was indicted for possessing and distributing
child pornography, he moved to suppress this evidence for
lack of probable cause to search and on the ground of stale-
ness, but the district court denied the motion. The district
court also denied Hay's motion to reconsider and to hold an
evidentiary hearing in order to challenge the veracity of
Galante's affidavit under Franks v. Delaware, 438 U.S. 154
(1978). The jury found Hay guilty of possession, receipt,
reproduction and transportation of child pornography, and he
has timely appealed.
II
A
Relying on United States v. Lacy, 119 F.3d 742 (9th Cir.
1997), and United States v. Weber, 923 F.2d 1338 (9th Cir.
1990), Hay contends that the government failed to establish
probable cause because there was no evidence of a pattern of
unlawful activity. Rather, in his view, the warrant affidavit
merely reflected that Evans sent to an Internet address, some-
times linked to Hay's multi-user computer, a single transmis-
sion containing 19 images out of the 20,000 computerized
images of child pornography found in Evans's computer sys-
tem. Hay contends that the district court's ruling disregards
the fact that pornographic materials can be received by
"SPAM"3 as well as unintentionally by programs, such as the
one Hay wrote, which, according to Hay, would automatically
download files in bulk for later viewing. In addition, he notes,
persons sending Internet transmissions using FTP can do so
_________________________________________________________________
3 "SPAM" is unsolicited junk e-mail.
13395
anonymously, further vitiating the basis for probable cause in
this case.
In Weber, the defendant placed an order for four pictures
of child pornography. Anticipating their delivery at his house,
customs agents obtained a warrant to search for books, maga-
zines, photographs, films, video tapes and undeveloped films
depicting minors engaged in sexually explicit conduct based
on an affidavit which stated the agent's belief that those
items, as well as the four pictures which would arrive as a
result of the controlled delivery, would be there. The boiler-
plate recited how the agent expected "child molesters," "pe-
dophiles" and "child pornography collectors " to behave, but
we found this was inadequate to support the application
because there was no evidence in the affidavit indicating that
Weber was any of those things. Id. at 1341. In these circum-
stances, we held that the affidavit was insufficient to establish
probable cause that Weber would have anything other than
the four pictures at his house.
In Lacy, Customs officials learned that child pornography
from a Danish computer bulletin board system called BAMSE
was being brought into the United States by computer, and
that an individual later identified as the defendant had down-
loaded six picture files containing computerized visual depic-
tions known as GIFs. Based on a warrant affidavit which
stated that Lacy downloaded at least two GIFs depicting
minors engaged in sexual activity from BAMSE, a warrant
was issued authorizing the search of Lacy's apartment and
seizure of computer equipment and records, and documents
relating to BAMSE. We held that this sufficed for probable
cause to believe that Lacy actually received and possessed
computerized visual depictions of child pornography.
[1] Galante's affidavit is quite different from the affidavit
we faulted in Weber. It contains a good deal of evidence from
which the magistrate judge could conclude that the 19 files
transmitted via FTP to Hay's Internet address would be found
13396
on Hay's computer system.4 Evans's log contained separate
entries for each of the 19 file transfers and the transfers
occurred at different times over a seven-minute period. The
19 files were not sent to Hay within or attached to an e-mail
message; indeed, they did not go to Hay's e-mail address
(ahay@dilbert.stc.housing.washington.edu) but to his Internet
address (128.95.25.1) via FTP. FTP is a protocol for the direct
transfer of files and has nothing to do with e-mail. Evans's
files were downloaded directly into the "incoming " directory
of Hay's computer. Galante's affidavit also recites informa-
tion obtained from the University's records indicating that the
computer located in Hay's apartment is sometimes configured
to use the specific Internet address to which Evans transmit-
ted, and from Hay himself that he is the exclusive user of the
computer in his apartment. Further, there was evidence of
Hay's extreme interest in young children as reflected in what
Hay published on his home page. In light of these facts and
the fact that Evans had been identified by Ontario police as
an active trader of child pornography to the United States, the
magistrate judge was entitled to infer that he and Hay had
communicated prior to the 19 file transfers and that the trans-
fers were neither unsolicited nor accidental. See United States
v. Rowland, 145 F.3d 1194, 1205 (10th Cir. 1998) ("In mak-
ing the probable cause determination, the issuing magistrate
may draw reasonable inferences from the material provided in
the warrant application.").
Hay would have us infer otherwise for several reasons, one
_________________________________________________________________
4 We review for clear error whether the magistrate had a substantial
basis for concluding probable cause existed, see United States v. Terry,
911 F.2d 272, 275 (9th Cir. 1990), and we accord "great deference" to the
magistrate's determination of probable cause. United States v. Clark, 31
F.3d 831, 834 (9th Cir. 1994). The magistrate's responsibility in determin-
ing whether to issue a search warrant is "simply to make a practical,
common-sense decision whether, given all the circumstances set forth in
the affidavit before him . . . there is a fair probability that contraband or
evidence of a crime will be found in a particular place." Illinois v. Gates,
462 U.S. 213, 238 (1983).
13397
of which is that the search made of Evans's computer would
surely have turned up evidence of prior communications had
there been any. However, this supposes that the analysis of
Evans's computer was comprehensive. Galante's affidavit
provides no details about the nature and scope of the Evans's
examination from which any inference one way or the other
can reasonably be drawn. But the affidavit does provide suffi-
cient information from which the magistrate judge could rea-
sonably believe that there had to be prior communication
because the 19 images were sent directly to Hay's computer
by a known trader.
[2] Beyond this, Hay argues that there was no evidence that
he fell within a class of persons likely to collect and traffic in
child pornography because the affidavit does not indicate that
he was a child molester, pedophile, or collector of child por-
nography and sets forth no evidence that he solicited, sold or
transmitted child pornography. In the same vein, Hay con-
tends that Galante's affidavit did not establish a nexus
between the crime and Hay's apartment because there was no
evidence reflecting any specific illegal actions on Hay's part
that took place in his apartment. However, these arguments
misfocus the inquiry, which is whether there was reasonable
cause to believe the 19 files from Evans's computer were
located somewhere in Hay's computer, on electronic storage
devices or on printouts, in his apartment. It is well-established
that a location can be searched for evidence of a crime even
if there is no probable cause to arrest the person at the loca-
tion. See Zurcher v. The Stanford Daily, 436 U.S. 547, 556
(1978) ("The critical element in a reasonable search is not that
the owner of the property is suspected of crime but that there
is reasonable cause to believe that specific `things' to be
searched for and seized are located on the property to which
entry is sought."); United States v. Taketa , 923 F.2d 665, 674
(9th Cir. 1991) ("[T]he correct inquiry is whether there was
reasonable cause to believe that evidence of . . . misconduct
was located on the property that was searched."); United
States v. Ocampo, 937 F.2d 485, 490 (9th Cir. 1991)
13398
("Probable cause exists when, considering the totality of the
circumstances, there is a fair probability that contraband or
evidence of a crime will be found in a particular place.") (cita-
tions and internal quotations omitted).
Hay also maintains that Galante's affidavit contained
mostly generalized, boilerplate opinion testimony. Specifi-
cally, he faults language that individuals involved in posses-
sion and transportation of child pornography rarely, if ever,
dispose of their sexually explicit material and that deleted
computer files can likely be retrieved by computer experts. He
also cites Galante's opinion that Hay was likely to possess
more than the 19 images from Canada because "in most cases
like this one, additional images have been found " and that the
pornographic images "are rarely the first or last such images
to be collected by the target." Based on Rowland, 145 F.3d at
1203-06, Hay argues that boilerplate language of this sort can-
not rescue an affidavit devoid of evidence that he solicited or
distributed child pornography and resting only on a bare infer-
ence that he must be a pedophile in possession of child por-
nography because of a single, seven-minute, six-month old
transmission.
[3] The "generalized" language in Galante's affidavit dif-
fers significantly from Rowland, where the defendant had
given a post office box address for delivery of a videotape of
child pornography that he ordered. The government obtained
an anticipatory search warrant for Rowland's residence based
on an affidavit which described the investigator's training and
experience in the area of child pornography but did not set out
any facts suggesting there was reason to believe that Rowland
would be likely to view or store such materials at his home
rather than elsewhere. The court found the agent's general
experience insufficient for probable cause in the absence of
any evidence linking Rowland's home to the suspected crimi-
nal activity. Here, of course, the 19 files were not sent through
the regular mail to Hay as the videotapes were in Rowland;
they were directly transferred to Hay's computer. Also unlike
13399
Rowland, where the defendant used a post office box for
receipt of pornographic materials, the affidavit here set forth
evidence which linked the 19 files to Hay's apartment by trac-
ing the IP address in Evans's FTP logs to the computer in
Hay's apartment that Hay told government agents he used
exclusively. Further, the boilerplate in Galante's affidavit pro-
vides context for Evans's transfer of 19 images to Hay's Inter-
net address, and forms the basis upon which the magistrate
judge could plausibly conclude that those files were still on
the premises. It sets forth relevant background information
about how child pornography is traded and distributed over
the Internet: through use of chat rooms to establish contacts,
followed by transmission or trading of images. It points out
that the computer's ability to store images in digital form
makes it an ideal repository for child pornography. The affi-
davit also explains that the computer has become one of the
preferred methods of distribution of child pornographic mate-
rials and opines, based upon Galante's experience and that of
colleagues, that searches and seizures of evidence from com-
puters requires agents to seize all parts of a computer system
to be processed later by a qualified computer expert. See
United States v. Gil, 58 F.3d 1414, 1418 (9th Cir. 1995)
("[W]hen interpreting seemingly innocent conduct, the court
issuing the warrant is entitled to rely on the training and expe-
rience of police officers."). In sum, the affidavit (including
"boilerplate" based on the agents' experience), provides a
substantial basis for the probable cause determination.
B
Hay additionally contends that the government's applica-
tion, which took place six months after Evans transmitted the
19 images to Hay's computer, was too stale to justify the war-
rant. However, it follows from Lacy that information about
the Evans's transmission was not stale. There, the defendant
had downloaded child pornography ten months before the
search warrant was sought and similarly argued staleness.
Based on the affiant's explanation that collectors and distribu-
13400
tors of child pornography value their sexually explicitly mate-
rial highly, rarely if ever dispose of it, and store it for long
periods in a secure place, we concluded there was ample rea-
son to believe the items sought were still in Lacy's apartment.
As we stated, "[w]e are unwilling to assume that collectors of
child pornography keep their materials indefinitely, but the
nature of the crime, as set forth in this affidavit, provided
good reason to believe the computerized visual depictions
downloaded by Lacy would be present in his apartment when
the search was conducted ten months later." Lacy, 119 F.3d
at 746 (internal quotations and citations omitted). The affida-
vit here makes similar statements, and also indicates that even
if Hay had deleted the files, they could nevertheless be
retrieved by a computer expert. As in Lacy, we conclude that
the magistrate judge could well believe that the files sent by
Evans would be present when the search was conducted.
In a related argument, Hay asserts that there must be a pat-
tern of activity to infer long-term storage and to support a
warrant in child pornography cases. For this he relies on our
statement in Lacy to the effect that "[t]he information offered
in support of the application for a search warrant is not stale
if `there is sufficient basis to believe, based on a continuing
pattern or other good reasons, that the items to be seized are
still on the premises.' " Lacy, 119 F.3d at 745-46 (quoting
United States v. Gann, 732 F.2d 714, 722 (9th Cir. 1984)).
While he is correct that a continuing pattern would support a
warrant, so, too, do "other good reasons." Thus, the magis-
trate judge could properly authorize a search so long as there
were good reasons to believe the 19 images were still in
Hay's computer. As we have explained, there were.
C
Finally, Hay contends that the warrant was overbroad and
lacked particularity because it authorized the government to
search and seize Hay's entire computer system and virtually
every document in Hay's possession without referencing child
13401
pornography or any particular offense conduct or being nar-
rowed by specific acts, time frames or persons. Attachment
A(1) to the application identifies (a) computer hardware, (b)
computer software, (c) records stored in the form of electronic
or magnetic coding or on computer media, (d) computer
instructions, (e) printouts, photographs, video tapes or other
visual depictions involving child pornography, and (f) records
of the distribution of materials that depict child pornography.
Attachment A(2) lists all records "involved with child pornog-
raphy including, but not limited to" Evans and Hay. Although
only subparagraphs (e) and (f) of Attachment A(1) specifi-
cally mention child pornography, the preface limits the scope
of the search to "materials which constitute evidence of the
commission of criminal offenses; or contraband, the fruits of
crimes, or property designed or intended for use or which is
or has been used as the means of committing criminal
offenses, namely violations of 18 U.S.C. sections 2251 and
2252." These sections prohibit the sexual exploitation of chil-
dren and certain activities relating to material involving the
sexual exploitation of minors.
As was true in Lacy, "in this case no more specific descrip-
tion of the computer equipment sought was possible. " Lacy,
119 F.3d at 746.5 The government knew that Evans had sent
19 images directly to Hay's computer, but had no way of
_________________________________________________________________
5 Descriptions in warrants must be specific enough to enable the person
conducting the search to reasonably identify the things to be seized. See
United States v. Spilotro, 800 F.2d 959, 963 (9th Cir. 1986). We consider
the following factors in determining whether or not a warrant is over-
broad:
(1) whether probable cause exists to seize all items of a particular
type described in the warrant; (2) whether the warrant sets out
objective standards by which executing officers can differentiate
items subject to seizure from those which are not; and (3)
whether the government was able to describe the items more par-
ticularly in light of the information available to it at the time the
warrant issued.
Id. at 963 (citations omitted).
13402
knowing where the images were stored. Further, the affidavit
explained why it was necessary to seize the entire computer
system in order to examine the electronic data for contraband.
It also justified taking the entire system off site because of the
time, expertise, and controlled environment required for a
proper analysis. This, together with the magistrate judge's
authorization to do so, makes inapposite United States v.
Tamura, 694 F.2d 591 (9th Cir. 1982), upon which Hay relies
for its suggestion that magistrate judges should approve sei-
zure of materials beyond those described in the warrant before
wholesale removal occurs. In these circumstances, as we pre-
viously held in Lacy and as the Court of Appeals for the First
Circuit has subsequently held in United States v. Upham, 168
F.3d 532, 535 (1st Cir. 1999), generic classification is accept-
able.6
Hay compares the wholesale search and seizure of his
apartment and computer system to searches and seizures con-
demned for overbreadth in United States v. Kow , 58 F.3d 423
(9th Cir. 1995), and Center Art Galleries-Hawaii, Inc. v.
United States, 875 F.2d 747 (9th Cir. 1989) overruled on
other grounds, J.B. Manning Corp. v. United States, 86 F.3d
926, 927 (9th Cir. 1996), but the same argument was rejected
in Lacy. Both Kow and Center Art are distinguishable in any
event. In Kow, the alleged crime was tax fraud and the war-
rant authorizing "the seizure of virtually every document and
_________________________________________________________________
6 Upham rejected a similar attack on the generic nature of the warrant
application in a case which also involved the computer transmission of
child pornography, observing:
As a practical matter, the seizure and subsequent off-premises
search of the computer and all available disks was about the nar-
rowest definable search and seizure reasonably likely to obtain
the images. A sufficient chance of finding some needles in the
computer haystack was established by the probable-cause show-
ing in the warrant application; and a search of a computer and co-
located disks is not inherently more intrusive than the physical
search of an entire house for a weapon or drugs.
168 F.3d at 535.
13403
computer file" at a video distributing company was unconsti-
tutionally broad and generic because there was no limit on
which documents could be seized or how they related to the
criminal activity at issue. Center Art Galleries involved an
investigation of mail and wire fraud in connection with the
sale of a forged Salvador Dali artwork. The warrant was over-
broad because it allowed virtually unrestricted seizure of
items without describing the specific crimes suspected. See
also United States v. Cardwell, 680 F.2d 75 (9th Cir. 1982)
(warrant invalid because it failed to describe criminal activity
under investigation). By contrast, in this case, the application
did not ask for, and the warrant did not authorize, seizure of
every document, but of child pornography which is a suffi-
ciently specific definition to focus the search. 7
III
Hay submits that he was entitled to a hearing under Franks
v. Delaware, 438 U.S. 154 (1978), because the warrant affida-
vit misled the magistrate judge into believing that Hay owned
the sole computer tied to the 128.95.25.1 Internet Protocol
address to which Evans sent the child pornography. 8 The war-
rant affidavit provided that the transmission had to have been
made solely to Hay's computer because the 128.95.25.1 Inter-
net address was linked to the unique identifier of the Ethernet
interface address (00C0F009C4DE) for Hay's computer. He
proposed to show that the government intentionally or reck-
_________________________________________________________________
7 We decline to consider Hay's argument that execution of the warrant
was overbroad as it was not raised in the district court. See United States
v. Robertson, 52 F.3d 789, 791 (9th Cir. 1994). Regardless, so far as
appears, nothing that was seized or searched which arguably exceeded the
scope of the warrant was used. No plain error would, therefore, have
occurred.
8 "In order to be granted a Franks hearing, the defendant must make a
substantial preliminary showing that: 1) the affidavit contains intentionally
or recklessly false statements, and 2) the affidavit cannot support a finding
of probable cause without the allegedly false information." United States
v. Valencia, 24 F.3d 1106, 1109 (9th Cir. 1994).
13404
lessly failed to reveal that University of Washington ARP
cache data computer logs reflected that a second computer
with a different Ethernet address (00A024AFAF91) fre-
quently used the same 128.95.25.1 address. However, the
warrant application was based on information provided by the
University pursuant to a grand jury subpoena, none of which
indicated that the IP address 128.95.25.1 was linked to any
other computer. As Hay failed to make any showing that
Galante knew of the second Ethernet interface address at the
time of making out the affidavit, or had any basis for believ-
ing the information furnished by the University and included
in the affidavit was not true, a Franks hearing was not
required.
IV
Hay seeks reversal of his conviction on the ground that the
district court improperly allowed the jury to view three exhib-
its of photographic depictions of child pornography even
though he had stipulated that they constituted child pornogra-
phy transmitted in interstate commerce. Hay had moved in
limine to exclude all thirty-four exhibits that depicted child
pornography under Federal Rules of Evidence 403(b). The
district court ruled that no images of child pornography would
be shown to the jury except upon request, and none was pub-
lished during the trial. However, during deliberations the jury
requested three specific exhibits. One was an image that Hay
sent to someone while engaged in an Internet chat on March
16, 1997 that showed Hay (not a hacker) was interested in
child pornography and involved in its distribution. Another
was the packet of recovered child pornography files from the
partition of Hay's hard drive that he backed up onto the seven
encrypted Zip cartridges; this exhibit also showed that Hay
(rather than a hacker) distributed child pornography. The third
exhibit was a reconstruction of a page from Hay's web site
based on the contents of his own web browser cache, which
showed Hay using his browser to access his system.
13405
Hay contends that United States v. Merino-Balderrama,
146 F.3d 758 (9th Cir. 1998), mandates a new trial. In
Merino-Balderrama, child pornography films that were in a
briefcase in the defendant's car were played for the jury.
There was no evidence that the defendant had seen the films.
We reversed because the box covers had still photographs
which were more probative of the defendant's knowledge that
they contained pornographic material than the films, yet were
far less inflammatory. Unlike Merino-Balderrama , there was
evidence that Hay had seen the images of child pornography
which he was charged with possessing, based on the thumb-
nail images he created when he viewed them on his computer
screen as well as the existence of many of the images on his
own FTP and web sites. Further, the nature of the images was
relevant in light of Hay's claims at trial that he had tried to
delete images he found on his system and that a hacker had
taken over his computer. Finally, the particular three exhibits
that were shown to the jury reflected Hay's personal involve-
ment. Given Hay's defenses, we cannot say that allowing the
jury to view three of the thirty-four exhibits was unduly preju-
dicial.
V
After briefing was completed, Hay submitted papers sug-
gesting that his conviction might be infirm in light of Free
Speech Coalition v. Reno, 198 F.3d 1083 (9th Cir. 1999),
where we held that the First Amendment prohibits Congress
from enacting a statute that makes criminal the generation of
images of fictitious children engaged in imaginary but explicit
sexual conduct. Subsections (B) and (D) of 18 U.S.C.
S 2256(8) were at issue in Free Speech. Section 2256(8)(B)
bans sexually explicit depictions that appear to be of minors,
and S 2256(8)(D) bans visual depictions that are "advertised,
promoted, presented, described or distributed in such a man-
ner that conveys the impression" that they contain sexually
explicit depictions of minors. We struck these subsections
because language that criminalizes material that "appears to
13406
be a minor" and "conveys the impression" that a minor is
engaged in explicit sexual activity is unconstitutionally vague
and overbroad.
Hay never challenged the indictment or the instructions on
this ground. Indeed, he stipulated that the computer graphics
files recovered from his system involved children under the
age of eighteen and the stipulation listed the age range of each
child in each of the exhibits. Counsel conceded that the mate-
rial was child pornography. Even assuming the issue is not
waived, only one of the counts was charged underS 2256(8)
and it does not focus on the two phrases at issue in Free
Speech. To the contrary, the jury was specifically instructed
that the term "child pornography" means any visual depiction
of sexually explicit conduct where "the production" involves
the "use of a minor [defined as "any person under the age of
eighteen years"] engaging in sexually explicit conduct" and
"such visual depiction is of [a person under the age of eigh-
teen years] engaging in sexually explicit conduct." A produc-
tion using a child is very different from morphing, and Hay
does not suggest how there could be anything unconstitutional
about this definition. We see no error, plain or otherwise.
AFFIRMED.
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