F I L E D United States Court of Appeals Tenth Circuit PUBLISH MAR 5 1999 UNITED STATES COURT OF APPEALS PATRICK FISHER Clerk TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, v. No. 98-1048 JOHN FABIANO,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. No. 96-CR-502-Z)
Andrew A. Vogt, Assistant United States Attorney, (Henry L. Solano, United States Attorney, with him on the brief) Denver, Colorado, for Plaintiff-Appellee.
Jill M. Wichlens, Assistant Federal Public Defender, (Michael G. Katz, Federal Public Defender, with her on the brief) Denver, Colorado, for Defendant-Appellant.
Before TACHA, BALDOCK, and MURPHY, Circuit Judges.
BALDOCK, Circuit Judge.
Defendant John Fabiano appeals his conviction for knowingly receiving child
pornography, in violation of 18 U.S.C. § 2252(a)(2). Defendant was charged in a fifteen-
count indictment with transporting, receiving and possessing child pornography in violation of 18 U.S.C. §§ 2252(a)(1), (a)(2) and (a)(4)(B). A jury convicted him of two
counts of knowingly receiving visual depictions of child pornography, in violation of §
2252(a)(2), and acquitted him on the remaining thirteen counts. The district court
sentenced Defendant to 24-months imprisonment and three years of supervised release.
On appeal, Defendant raises three errors. First, Defendant argues that the jury was not
properly instructed regarding when Defendant had to know that the visual depictions he
received were child pornography. Second, Defendant argues that the evidence was
insufficient to prove that Defendant knew, prior to receiving the visual depictions, that the
images depicted minors engaged in sexually explicit conduct. Finally, Defendant argues
that the district court erred by ordering Defendant to comply with the requirements of the
Colorado sex offender registration statute as a condition of supervised release. Our
jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1). We affirm.
I. Background
After a tip from a confidential informant, federal law enforcement agents began
monitoring a private Internet “chat room” named “Preteen.” The chat room was
accessible to subscribers of America Online (“AOL”). Agents monitored the activity in
the Preteen chat room by logging into the room and participating in and observing the
conversations among the participants.1 As a result, agents learned that the participants in
1 Each subscriber who logged into the Preteen chat room is provided with the “screen names” of all other individuals in the chat room at that time. Subscribers in the (continued...)
2 the Preteen chat room were discussing and trading computer-generated images depicting
child pornography. Agents kept chat logs, or transcripts, of the electronic conversations
they were monitoring.
In April 1996, Defendant’s “screen names” began appearing on the Preteen chat
logs, indicating that Defendant was visiting the chat room and conversing with the other
participants. On September 10, 1996, Defendant, along with other individuals logged
into the chat room, received two e-mails with attached files. Attached to the first e-mail
message was a file titled “3CUMFAC.” Attached to the second message was a file titled
“6SUK.” Both files depicted children engaged in sexual acts. After receiving these files,
Defendant continued to log onto the Preteen chat room for two months.
On December 11, 1996, agents searched Defendant’s home in Broomfield,
Colorado pursuant to a warrant. Agents seized two computers along with some computer
diskettes. On February 27, 1997, Defendant was charged with fifteen counts of
transporting, possessing and receiving child pornography, including two counts of
knowingly receiving child pornography arising from his receipt of the two files on
September 10, 1996. After an eleven-day trial, a jury convicted Defendant of these two
counts of knowing receipt and acquitted him on all other charges.
1 (...continued) chat room can electronically communicate by sending messages and pictures to every other subscriber in the chat room or by sending private messages to individual subscribers.
3 II. Analysis
A. Jury Instructions
Defendant argues that the district court failed to properly instruct the jury on the
Government’s burden of proof regarding Defendant’s knowledge of the content of the
visual depictions he received. Specifically, Defendant asserts that the elements of the
offense instruction failed to make clear that Defendant must have known, before he
received the computer files, that they depicted minors engaged in sexually explicit
conduct. Therefore, Defendant asserts that the elements of the offense instruction is
erroneous.
We review a jury instruction de novo when an objection is made at trial, and for
plain error when no objection was made. United States v. Pappert, 112 F.3d 1073, 1076
(10th Cir. 1997); see Fed. R. Crim. P. 52(b). In this case, Defendant offered an
instruction on the elements of the offense, which the district court rejected.2 Defendant
did not specifically object, however, to the elements instruction given by the court. By
failing to object to the court’s instruction, Defendant failed to put the district court
“clearly on notice as to the asserted inadequacy” of the jury instruction. United States v.
Duran, 133 F.3d 1324, 1330 (10th Cir. 1998). Therefore, we review for plain error. See
id.; see also United States v. Martinez, 776 F.2d 1481, 1484 (10th Cir. 1985) (tendering
2 The reasons for the district court’s rejection of Defendant’s proposed instruction are unclear because the jury instruction conference was not conducted on the record.
4 jury instructions which were not given does not preserve the issue for appeal).
Under this standard, Defendant must show: (1) an “error,” (2) that is “plain,”
which means “clear” or “obvious” under current law, and (3) that “affect[s] substantial
rights.” Johnson v. United States, 117 S.Ct. 1544, 1549 (1997) (quoting United States v.
Olano, 507 U.S. 725, 732 (1993)). If these three requirements are met, then we may
exercise discretion to correct the error if it “seriously affect[s] the fairness, integrity, or
public reputation of judicial proceedings.” Olano, 507 U.S. at 732 (internal quotations
omitted).
We must first determine whether the challenged jury instruction was error. When
reviewing jury instructions for error, we view them as a whole “to determine whether the
jury may have been misled, upholding the judgment in the absence of substantial doubt
that the jury was fairly guided.” United States v. Wiktor, 146 F.3d 815, 817 (10th Cir.
1998) (internal quotations omitted).
In this case, the district court gave the following elements of the offense
instruction:
The essential elements required to be proven in order to establish an offense under 18 U.S.C. § 2252(a)(2) are:
First: That the Defendant knowingly received a visual depiction which had been shipped or transported in interstate commerce by computer;
Second: That the production of the visual depiction involved, and the defendant knew it involved, the use of a minor engaging in sexually explicit conduct; and
5 Third: That the visual depiction was of such conduct.3
The district court also gave separate instructions on “knowingly” and “knowingly
received.” The “knowingly” instruction stated:
An act is done “knowingly” if done voluntarily and intentionally, and not because of mistake or accident or other innocent reason. In this case, the term “knowingly” refers to an awareness of the sexually explicit nature of the material, and to the knowledge that the visual depictions were in fact of minors engaged in that sexually explicit conduct. The United States must show that the Defendant had knowledge of the general nature of the contents of the material. The Defendant need not have specific knowledge as to the actual age of the underage performer. The Defendant must have knowledge or an awareness that the material contained a visual depiction of a minor engaging in sexually explicit conduct. Such knowledge may be shown by direct or circumstantial evidence, or both. Eyewitness testimony of the Defendant’s perusal of the material is not necessary to prove his awareness of its contents; the circumstances may warrant an inference that he was aware of what the material depicts. Furthermore, the Defendant’s belief as to the legality or illegality of the material is irrelevant.
The district court also gave the following instruction on “knowingly received”:
You are instructed that the term “knowingly received” includes knowing acceptance of requested material. The material does not have to be maintained or stored. “Knowing receipt” means more than simply having e- mail sent to a computer. If John Fabiano requested the images in question, and they were ultimately sent to him by e-mail, you may find that is
3 Defendant’s proposed instruction differed only slightly. In it the second element of the offense read: “That the Defendant knew that the production of that visual depiction involved the use of a minor engaging in sexually explicit conduct prior to his having received it.” Defendant’s argument rests upon the district court’s deletion of “prior to his having received it.”
6 sufficient to show he “knowingly received” them. If John Fabiano did not request the images in question, you may find that he did not “knowingly receive” them.
Defendant argues not only that the elements instruction was erroneous, but that the other
instructions given by the Court did not cure the error. Viewing these instructions
collectively, we conclude no error occurred.
First, the elements instruction comports with the requirements set forth by the
Supreme Court in United States v. X-Citement Video, Inc., 513 U.S. 64 (1994). In X-
Citement, the Court held that the “knowingly” scienter requirement in § 2252 applies, not
only to “receives,” but also to “the sexually explicit nature of the material and to the age
of the performers.” Id. at 78. Thus, in a § 2252(a)(2) case, the Government must not
only prove that the defendant “knowingly received” a visual depiction, but also that the
defendant knew that the material was sexually explicit and that the performers were
minors. See United States v. Cedelle, 89 F.3d 181, 185 (4th Cir. 1996).
In this case, the jury was instructed by the elements instruction that Defendant
must have known that the “production of the visual depiction involved . . . the use of a
minor engaged in sexually explicit conduct.” In addition, the “knowingly” instruction
informed the jury that “knowingly” refers to both “an awareness of the sexually explicit
nature of the material, and to the knowledge that the visual depictions were
in fact of minors engaged in that sexually explicit conduct.” (emphasis added). Thus, the
instructions comply with X-Citement Video.
7 Furthermore, the instructions, viewed together, properly instructed the jury as to
when Defendant had to know the material he received involved minors engaged in
sexually explicit conduct. For example, the “knowingly received” instruction stated that
“‘knowing receipt’ means more than simply having e-mail sent to a computer.” That
instruction also stated that “[i]f John Fabiano did not request the images in question, you
may find that he did not ‘knowingly receive’ them.” The “knowingly” instruction stated
that “knowingly” does not mean “mistake or accident or other innocent reason.” Thus,
these instructions did not permit the jury to find Defendant guilty of “knowingly
receiving” child pornography in violation of § 2252(a)(2), if the evidence showed that
Defendant merely acquired the e-mail’s without knowledge of their content, i.e., by
accident or mistake. Furthermore, nothing in the language of the instructions suggests
that after-acquired knowledge of the content of these visual depictions would be
sufficient to convict Defendant under § 2252(a)(2). It follows from these instructions
that the jury found that Defendant had the requisite knowledge, before he received the
visual depictions, of the content of these images.
Second, we disagree with Defendant that X-Citement Video requires an additional
statement in the elements of the offense instruction regarding when Defendant acquired
the requisite knowledge. In X-Citement Video, the Court held only that the § 2252
scienter requirement applies to both the sexually explicit nature of the material and to the
age of the performers. Regardless, the instructions in this case properly informed the jury
8 as to when Defendant must have been aware of the nature and content of the material he
received.
Finally, Defendant’s reliance on United States v. Cedrelle, 89 F.3d 181 (4th Cir.
1996) is misplaced. In Cedrelle, the Fourth Circuit found plain error where a
§ 2252(a)(2) elements of the offense instruction did not comply with X-Citement Video.
Cedrelle ran afoul of X-Citement Video because the jury was not instructed that the
defendant had to have knowledge that the materials he received were depictions of minors
engaged in sexually explicit acts. See Cedrelle, 89 F.3d at 184. Cedrelle did not hold that
the elements of the offense instruction must include a statement explaining when the
requisite knowledge must have been acquired by the defendant. Thus, the jury
instructions in Cedrelle are distinguishable from the instructions given in this case.
Viewing the instructions as a whole, we are not left with “substantial doubt that the
jury was fairly guided.” Wiktor, 146 F.3d at 817. Consequently, we find no error in the
instructions given by the district court. Having found no error, normally our plain error
analysis would end. However, the Government, while not conceding error, did admit at
oral argument that an elements of the offense instruction which explicitly addressed when
knowledge must be acquired would have been preferable. In light of the Government’s
statement, we assume arguendo that the instruction as given was error and constituted
plain error. Even so assuming, we would decline to exercise our discretion to grant relief
because Defendant has not demonstrated that he was prejudiced by the error. See United
9 States v. Bell, 154 F.3d 1205, 1209 (10th Cir. 1998). The claimed error in the jury
instructions would not result in a miscarriage of justice or “seriously affect the fairness,
integrity, or public reputation of the judiciary,” because the evidence was overwhelming
regarding Defendant’s prior knowledge of the content of the visual depictions he
received. See Olano, 507 U.S. at 736. Defendant had been a regular visitor to the
Preteen chat room for several months before he received the two files which were the
subjects of the counts of conviction. He was present in the Preteen chat room when
graphic discussions took place regarding the content of material sent and traded in the
Preteen chat room. Defendant also offered to trade in the Preteen chat room and asked to
be included in mailings sent by other participants. In light of this evidence, the
proceedings resulted in a “fair and reliable determination” of Defendant’s guilt and, even
assuming plain error, a reversal would be unwarranted. See United States v. Cedrelle, 89
F.3d 181, 186 (4th Cir. 1996).
B. Sufficiency of the Evidence
Defendant argues that the evidence was insufficient to prove that he knew before
receiving the pictures that the visual depictions showed minors engaged in sexually
explicit conduct. Sufficiency of the evidence is a question of law reviewed de novo.
United States v. Carter, 130 F.3d 1432, 1439 (10th Cir. 1997). We will not reverse a
conviction based upon insufficient evidence unless no rational trier of fact could have
reached the disputed verdict. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). In
10 reviewing the record, we view the evidence and the reasonable inferences to be drawn
therefrom in a light most favorable to the government. Id.; United States v. Haslip, 160
F.3d 649, 652-53 (10th Cir. 1998). We do not weigh the evidence or consider the
credibility of the witnesses. Haslip, 160 F.3d at 653.
In order to find a defendant guilty of knowing receipt of child pornography in
violation of 18 U.S.C. § 2252(a)(2), a jury must find beyond a reasonable doubt that: (1)
Defendant knowingly received a visual depiction sent in interstate commerce via
computer; (2) which Defendant knew depicted a minor engaged in sexually explicit
conduct. See X-Citement Video, 513 U.S. at 78. After reviewing the record, we find
ample evidence to support the jury’s verdict that Defendant was guilty of knowingly
receiving visual depictions of minors engaged in sexually explicit conduct.
The evidence shows that Defendant visited the Preteen chat room for
approximately five months prior to receiving the two visual depictions which were the
subjects of Counts II and III of the indictment. The chat room logs introduced at trial
show that Defendant observed and participated in discussions in the Preteen chat room
from which a jury could reasonably conclude that he was aware of the type of material
traded in the room. For example, on May 16, 1996, while Defendant was logged on in the
Preteen chat room, the participants discussed mailings and trading pictures. One
participant, screen name “JPavlik984," inquired “Anyone wanna trade 6-11.” Screen
name “Mbuckinghm,” asked “how young is everybody into?” “LOOkatpics” responded
11 “jp I have 6 to 11 in the mass mail I am sending out in 5 min’s.” When “LOOkatpics”
said “time’s up here comes the mail!!”, Defendant, logged on as “Brooke9696,"
responded with “send to me PLEEEEZEE.”
On September 4-5, 1996, just days before Defendant received the files which were
the subject of the two counts of conviction, he was logged onto the Preteen chat room.
On September 4, “Nirvana22" asked “Anyone want to trade boys?” Defendant, logged on
as “TanLegs” responded “won’t they mind?” “Nirvana22" asked “TanLegs, you want to
trade boys?” Defendant did not respond but remained in the chat room while the
participants discussed sexual acts with boys. On September 5, screen name “Heidelb”
said “lets go send preteen pics.” Defendant, logged on again as “TanLegs” responded
“list me and I will return.”4
On September 10, 1996, the same day Defendant received the two files which were
the subjects of Counts II and III of the indictment, Defendant, signed on as “TanLegs,”
was in the chat room when the following comments were sent: “please send young teens,”
“i got lots of preteen,” and “need animal shots will trade pre teen for animal.”
After Defendant received the two sexually explicit e-mails on September 10,
1996, he did not discontinue his visits to the Preteen chat room. Instead, he continued to
frequent the Preteen chat room until November 1996. For example, on September 11,
4 Special Agent Steven MacMartin testified that this statement means put me on the mailing list to receive messages and I will respond in kind.
12 1996, Defendant entered the Preteen chat room and inquired “anyone trading.” On
September 12, 1996, Defendant, logged on as “TanLegs,” told the participants in the
Preteen chat room that “i will gladly trade one on one or contribute to any list going on.”
Special Agent Daniel Chadwick testified that this meant that Defendant was willing to set
up a trade and if someone would send him a picture, he would send them one.
Defendant’s statements to investigators during questioning are also relevant to
Defendant’s knowledge of the nature of the materials he received while in the Preteen
chat room. Agents testified that Defendant admitted that he visited the Preteen chat room
and viewed a large number of pictures. He also told the agents that he received nude
pictures of adults and children, including children involved in sexual acts. Defendant
said that he downloaded the images onto diskettes and then deleted any images that
depicted children involved in sexual acts because he thought these images were illegal.
He indicated that he downloaded images onto diskettes so that he would have files to
trade in the Preteen chat room.
Finally, the graphically descriptive names of the files Defendant received on
September 10, 1996, – “3CUMFAC” and “6SUK” – also support Defendant’s conviction
for “knowing receipt” of child pornography. From the above testimony and the chat room
logs introduced as exhibits at trial, a jury could reasonably conclude that Defendant knew
that the participants in the chat room were trading images of child pornography and that
Defendant requested and knowingly received such images. In light of the evidence before
13 the jury, we cannot conclude that “no reasonable juror” could have reached this verdict.
Carter, 130 F.3d at 1439. Consequently, the evidence is sufficient to support Defendant’s
conviction on the two counts of knowingly receiving child pornography.
C. Supervised Release
Defendant argues that the district court erred by requiring him, as a condition of
supervised release, to comply with the registration requirements of the Colorado sex
offender registration statute, Colo. Rev. Stat. § 18-3-412.5. Defendant argues that his
conviction does not fall within the purview of the statute. Defendant did not object to
this condition of supervised release. Therefore, we review the district court’s imposition
of the condition for plain error. United States v. Orozco-Rodriguez, 60 F.3d 705 (10th
Cir. 1995).
District courts have broad discretion to fashion conditions of supervised release.
See United States v. Edgin, 92 F.3d 1044, 1048 (10th Cir. 1996). In addition to certain
mandatory conditions of supervised release set forth in 18 U.S.C. § 3583(d), a court may
impose additional conditions to the extent that such conditions “involve no greater
deprivation of liberty than is reasonably necessary” to deter criminal conduct, protect the
public, and provide the defendant with needed educational or vocational training, medical
care, or other correctional treatment. 18 U.S.C. §§ 3583(d) and 3553(a)(2). Section
3583(d) also provides that the conditions must be “reasonably related” to “the nature and
circumstances of the offense and the history and characteristics of the defendant.” 18
14 U.S.C. §§ 3583(d)(1) and 3553(a)(1)
As a condition of supervised release, the district court ordered Defendant to
“comply with the State of Colorado Sex Offender registration requirements for convicted
sex offenders pursuant to Colorado Revised Statutes 18-3-412.5.” Section 18-3-
412.5(1)(b) provides that:
On and after July 1, 1994, any person who is convicted in the state of Colorado of an offense involving unlawful sexual behavior or for which the factual basis involved an offense involving unlawful sexual behavior . . . shall be required to register in the manner prescribed in subsection (3) of this section.
Col. Rev. Stat. § 18-3-412.5(1)(b). Subsection (3) requires individuals who fall within
the reach of the statute to register with local law enforcement “within seven days of
becoming a temporary or permanent resident of any city, town, county . . . in the state of
Colorado” and “annually thereafter” for ten years. Col. Rev. Stat. § 18-3-412.5(3).
Defendant argues that because the statute’s definition of “unlawful sexual
behavior” does not explicitly list the offense he was convicted of, knowingly receiving
child pornography, Defendant does not fall within the reach of the statute. We need not
decide whether Defendant’s conduct falls within the statutory definition of “unlawful
sexual behavior,” because even if it does not, the district court, in its discretion could
have properly ordered Defendant to register as a sex offender in Colorado as a condition
of supervised release. See United States v. Coenen, 135 F.3d 938, 946 (5th Cir. 1998)
(district court did not abuse its discretion by requiring the defendant to notify local law
15 enforcement of his name, address and the crime for which he was convicted).
Under 18 U.S.C. § 3583(d), a district court may impose conditions of supervised
release in addition to those contained in the statute so long as they are reasonably related
to the nature and circumstances of the offense, and the history and characteristics of the
defendant. Requiring Defendant to register with local law enforcement is reasonable. As
a convicted sex offender, the registration requirement was reasonably related to (1)
deterrence of criminal conduct by Defendant; and (2) protection of the public. See
Coenen, 135 F.3d at 945. A jury convicted Defendant of a child pornography offense,
based on his receipt of two visual images depicting children involved in sexual acts. For
several months, Defendant frequently visited a Preteen chat room where child
pornography and other material was traded. He told FBI investigators that he sent and
received pictures of nude5 children over the Internet and that he stored such images in
order to have material to trade in the Preteen chat room.
Furthermore, the registration requirement involves “no greater deprivation of
liberty than is reasonably necessary.” 18 U.S.C. § 3583(d)(2). To comply with the
registration requirement, Defendant must provide only limited personal information to
local law enforcement. See id. at 946. The district court acted well within its discretion
by imposing this condition of supervised release.
Defendant also argues that the district court was not exercising its discretion when
5 Defendant denied sending pictures depicting children engaged in sexual acts.
16 it ordered compliance with the registration statute, but instead required compliance with
the Colorado statute because of an erroneous belief that Defendant’s compliance was
mandatory under Colorado law. We disagree. The presentence report (“PSR”)
recommended that “in view of the nature of the offense, the Court may also wish to
consider imposing the following special conditions.” (emphasis added). One of the
proposed conditions was that “the defendant shall comply with the State of Colorado Sex
Offender Registration requirements for convicted sex offenders pursuant to Colorado
Revised Statutes § 18-3-412.5.” Importantly, the PSR did not state that Defendant was
required to comply with the statute. Instead, the PSR merely offered it as one of several
options for the district court to consider. At sentencing, the district court, during the
discussion of the conditions of supervised release, stated:
The next point – and I want to point this out – is that there is a statute in Colorado that requires registration for people who meet the definition under the statute. It’s the sex offender registration requirement. And that’s 18-3-412.5, and that’s something that unless Mr. Lane [defense counsel] otherwise advises – that’s something that should be taken care of as far as registration.
Defense counsel did not object and the registration requirement was included in the
judgment. Granted, the district court did not clearly articulate the rationale behind the
imposition of this condition. When the court’s statement is viewed in light of the PSR,
however, we may reasonably infer that the district court chose to include the condition of
supervised relief because it was appropriate under the circumstances, not because it
believed Colorado law required such a result. Consequently, we reject Defendant’s
17 argument that the district court relied upon a mistaken notion that compliance with the
Colorado statute was mandatory.
III. Conclusion
For the foregoing reasons, we AFFIRM the district court.