USA v. Kevin Sheldon

Filing

FILED OPINION (MICHAEL DALY HAWKINS, M. MARGARET MCKEOWN and RICHARD R. CLIFTON) AFFIRMED. Judge: MDH , Judge: MMM , Judge: RRC Authoring. FILED AND ENTERED JUDGMENT. [8788600]

Case: 12-30324

09/19/2013

ID: 8788600

DktEntry: 39-1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

No. 12-30324

v.

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

KEVIN MICHAEL SHELDON,
Defendant-Appellant.

OPINION

Appeal from the United States District Court
for the District of Montana
Charles C. Lovell, Senior District Judge, Presiding
Submitted August 26, 2013*
Seattle, Washington
Filed September 19, 2013
Before: Michael Daly Hawkins, M. Margaret McKeown,
and Richard R. Clifton, Circuit Judges.
Opinion by Judge Clifton

*

The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

Page: 1 of 9

Case: 12-30324

2

09/19/2013

ID: 8788600

DktEntry: 39-1

UNITED STATES V. SHELDON
SUMMARY**

Criminal Law
Affirming a conviction for sexual exploitation of a child
and knowingly receiving child pornography, the panel held
that 18 U.S.C. § 2251(a) does not require the government to
prove that the defendant had knowledge that the materials
used to produce child pornography had traveled in interstate
commerce.
The panel held that the district court did not abuse its
discretion in admitting the defendant’s prior conviction for
possession of child pornography and that a rational jury could
conclude that the videos introduced at trial depicted sexually
explicit conduct.

COUNSEL
David F. Ness, Assistant Federal Defender, Great Falls,
Montana, for Defendant-Appellant.
Cyndee Peterson, Assistant United States Attorney, Missoula,
Montana, for Plaintiff-Appellee.

**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

Page: 2 of 9

Case: 12-30324

09/19/2013

ID: 8788600

DktEntry: 39-1

UNITED STATES V. SHELDON

Page: 3 of 9

3

OPINION
CLIFTON, Circuit Judge:
Defendant Kevin Michael Sheldon appeals the jury
verdict finding him guilty of sexual exploitation of a child in
violation of 18 U.S.C. § 2251(a) and knowingly receiving
child pornography in violation of 18 U.S.C. § 2252A(a)(2).
He argues that the district court erred in its interpretation of
§ 2251(a) because the court did not require the Government
to prove his knowledge of the interstate nature of his crime.
Our court has never directly addressed whether § 2251(a)
requires that the defendant have knowledge that the materials
used to produce child pornography had traveled in interstate
commerce. We hold that the statute contains no such
requirement.
Defendant also contends that the district court abused its
discretion at trial when the court admitted evidence of his
prior conviction for possession of child pornography, and that
his sexual exploitation of a child conviction must be set aside
because the evidence was insufficient for a rational jury to
find him guilty. Those arguments lack merit. We affirm.
I. Background
Defendant Sheldon lived with family members in
Montana. In September 2011, Defendant was told to move
out of the family home because he had inappropriately
touched a minor child. Shortly thereafter, the minor child’s
video recorder was found to contain several videos of
children naked, showering, and, in one instance, pretending
to perform oral sex on a teddy bear. The police were called
and obtained a warrant for Defendant’s home. Police

Case: 12-30324

09/19/2013

4

ID: 8788600

DktEntry: 39-1

UNITED STATES V. SHELDON

recovered Defendant’s computer and external hard drive,
which together contained 41 images of child pornography.1
Defendant was charged with one count of sexual
exploitation of a child and one count of knowingly receiving
child pornography. He pleaded not guilty.
Two female minor children testified at the jury trial that
Defendant, while still living with the family, showed the girls
pornography on the internet and told them to make their own
videos. He asked them to video themselves without clothing.
The children recorded the videos and repeated some of the
sexual references they had heard on the internet pornography.
A jury found Defendant guilty on both counts. The
district court sentenced him to 480 months’ imprisonment.
II. Discussion
Defendant raises three challenges to his convictions. His
primary argument – 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 pornography had traveled in interstate commerce.
We review a district court’s interpretation of a criminal
statute de novo. United States v. Dahl, 314 F.3d 976, 977
(9th Cir. 2002).
Our court has not directly addressed the legal question
Defendant raises regarding the mental state required under

1

The Government conceded that Defendant never saw the videos made
by the minor children described in this case; they were not among the
pornographic images found on his computer equipment.

Page: 4 of 9

Case: 12-30324

09/19/2013

ID: 8788600

DktEntry: 39-1

UNITED STATES V. SHELDON

Page: 5 of 9

5

§ 2251(a). We conclude that § 2251(a) does not require
knowledge of the interstate nature of the materials used to
produce the sexually explicit images.
Defendant’s argument fails under the plain language of
the statute. Section 2251(a) provides:
Any person who employs, uses, persuades,
induces, entices, or coerces any minor to
engage in . . . any sexually explicit conduct
for the purpose of producing any visual
depiction of such conduct . . . shall be
punished as provided under subsection (e), if
such person knows or has reason to know that
such visual depiction will be transported or
transmitted using any means or facility of
interstate or foreign commerce . . . or mailed,
if that visual depiction was produced or
transmitted using materials that have been
mailed, shipped, or transported in or affecting
interstate or foreign commerce by any means,
including by computer, or if such visual
depiction has actually been transported or
transmitted using any means or facility of
interstate or foreign commerce or in or
affecting interstate or foreign commerce or
mailed.
18 U.S.C. § 2251(a). The text can be better understood if
broken up into blocks:
Any person who employs, uses, persuades,
induces, entices, or coerces any minor to
engage in . . . any sexually explicit conduct

Case: 12-30324

6

09/19/2013

ID: 8788600

DktEntry: 39-1

UNITED STATES V. SHELDON
for the purpose of producing any visual
depiction of such conduct . . . shall be
punished as provided under subsection (e),
if such person knows or has reason to know
that such visual depiction will be transported
or transmitted using any means or facility of
interstate or foreign commerce . . . or mailed,
if that visual depiction was produced or
transmitted using materials that have been
mailed, shipped, or transported in or affecting
interstate or foreign commerce by any means,
including by computer,
or if such visual depiction has actually been
transported or transmitted using any means or
facility of interstate or foreign commerce or in
or affecting interstate or foreign commerce or
mailed.

Viewed this way, the first clause of the statute defines the
crime, and the three remaining clauses define interstate or
foreign commerce elements that justify federal jurisdiction
over the crime.
Defendant argues that the language, “knows or has reason
to know,” from the first jurisdiction clause imputes a
knowledge requirement to the other two jurisdiction clauses
as well, neither of which contains similar language. But
Congress’s use of the word “or” at the beginning of the final
clause indicates that these are three independent alternatives.
See In Re Pacific-Atlantic Trading Co., 64 F.3d 1292, 1302
(9th Cir. 1995) (“In construing a statute, a court should

Page: 6 of 9

Case: 12-30324

09/19/2013

ID: 8788600

DktEntry: 39-1

UNITED STATES V. SHELDON

Page: 7 of 9

7

interpret subsections written in the disjunctive as setting out
separate and distinct alternatives.”). Moreover, each of the
three jurisdiction clauses starts with “if,” and the “knows or
has reason to know” language comes after the “if” in the first
jurisdiction clause, not before it, indicating that it pertains
only to the first clause and not to the others.
We agree with the other circuit courts that have
previously considered this issue. Both the Fifth and Eleventh
Circuits have held that § 2251(a) does not require knowledge
as to the interstate nature of the crime. See United States v.
Terrell, 700 F.3d 755, 759 (5th Cir. 2012) (holding that the
more natural reading of § 2251(a) “is that knowledge must be
proven only as to the first jurisdictional hook” because the
statute’s repetition of “if” before each clause indicates that
each clause is distinct); United States v. Smith, 459 F.3d
1276, 1289 (11th Cir. 2006) (“The text of the statute simply
does not provide a basis to conclude that knowledge of the
jurisdictional nexus is plainly required.”). The Eleventh
Circuit explained, “[t]he most natural reading of this
provision is that jurisdiction extends to child pornography (1)
produced with the intent that it eventually travel in interstate
commerce; (2) produced with materials that have traveled in
interstate commerce; or (3) that has traveled in interstate
commerce.” Smith, 459 F.3d at 1289. We conclude that this
interpretation of the statute is correct.
To satisfy the jurisdictional element of § 2251(a) in this
case, then, the Government was only required to prove
beyond a reasonable doubt that the child pornography was
produced with materials that had traveled in interstate
commerce. The Government elicited testimony at trial that
the recorder used to produce the videos in Montana was
manufactured in China. This evidence was sufficient to

Case: 12-30324

8

09/19/2013

ID: 8788600

DktEntry: 39-1

UNITED STATES V. SHELDON

satisfy the jurisdictional element of § 2251(a) under the
correct interpretation of the statute. Id.
Defendant’s two other challenges to his conviction are
foreclosed by the facts and our applicable precedent, so we
need not discuss them at length. Defendant argues that the
district court abused its discretion in admitting evidence of
Defendant’s 1998 conviction for possession of child
pornography. Rule of Evidence 414 provides that in a
criminal case alleging that a defendant committed child
molestation, a court may admit evidence that the defendant
committed prior child molestation, including possession of
child pornography. Fed. R. Evid. 414(a), (d)(2). The
Government introduced only the sanitized record that
Defendant had been convicted of possession of child
pornography without disclosing to the jury the details of
Defendant’s conduct that resulted in the conviction. The
district court instructed the jury immediately thereafter that
they should only consider the evidence of the prior acts as
they relate to the particular charge in this case. Before
admitting the evidence, the district court properly considered
the non-exhaustive factors we set forth in United States v.
Lemay, 260 F.3d 1018, 1027 (9th Cir. 2001), and balanced the
probative value against the potential for unfair prejudice
under Federal Rule of Evidence 403. Based on the facts of
this case, Defendant’s prior conviction, and Defendant’s
arguments at trial, the district court did not abuse its
discretion in admitting Defendant’s prior conviction for
possession of child pornography.
Defendant also argues that the evidence admitted at trial
was insufficient to convict him of the sexual exploitation
count because the videos were not sexually explicit.
Evidence is sufficient to support the conviction if, “after

Page: 8 of 9

Case: 12-30324

09/19/2013

ID: 8788600

DktEntry: 39-1

UNITED STATES V. SHELDON

Page: 9 of 9

9

viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
United States v. Garrido, 713 F.3d 985, 999 (9th Cir. 2013)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979))
(internal quotation marks omitted). An individual violates
§ 2251(a) if he “persuades, induces, entices, or coerces any
minor to engage in . . . any sexually explicit conduct for the
purpose of producing any visual depiction of such conduct[.]”
18 U.S.C. § 2251(a). Sexually explicit conduct is defined in
18 U.S.C. § 2256(2)(A) and includes “lascivious exhibition
of the genitals[.]” Id at § 2256(2)(A)(v). The jury was shown
27 videos from a video recorder owned by one of the minor
children. Several of those videos depict the victims nude and
discussing sexual acts. Having reviewed the evidence
presented to the jury for ourselves, we conclude that a
rational trier of fact could have found the videos to depict
sexually explicit conduct. See United States v. Overton,
573 F.3d 679, 688 (9th Cir. 2009).
III.

Conclusion

18 U.S.C. § 2251(a) does not require proof of a
defendant’s knowledge that the materials used to produce
depictions of sexually explicit conduct have traveled in
interstate commerce. The district court did not abuse its
discretion in admitting at trial Defendant’s prior conviction
for possession of child pornography. A rational jury could
conclude that the videos introduced at trial depicted sexually
explicit conduct. We therefore affirm.
AFFIRMED.