United States v. Walton, James P.

In the

United States Court of Appeals

For the Seventh Circuit

No. 00-4133

United States of America,

Plaintiff-Appellee,

v.

James P. Walton,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Indiana, Hammond Division.

No. 99 CR 141--Rudy Lozano, Judge.

Argued May 11, 2001--Decided June 28, 2001

Before Bauer, Rovner and Evans, Circuit

Judges.

Bauer, Circuit Judge. James P. Walton

was convicted by a jury on one count of

possession of child pornography in

violation of 18 U.S.C. sec.

2252(A)(a)(5)(B), and one count of

receiving child pornography in violation

of 18 U.S.C. sec. 2252A(a)(2). In

determining his sentence, the district

court applied various enhancements under

the Sentencing Guidelines, including a

four-level enhancement under U.S.S.G.

sec. 2G2.2(b)(3) for receiving an image

which "portrays sadistic or masochistic

conduct or other depictions of violence."

Walton challenges the enhancement and

asks us to vacate his sentence and to

remand for further proceedings. For the

reasons set forth below, we affirm

Walton’s sentence.

BACKGROUND

Walton was an employee of Purdue

University who worked at the University’s

Herrick Laboratories. The University has

a large number of individual computers

which are connected with one another and

with Purdue’s Telecommunications Center

through various computer servers, and

which offer internet access. In November

of 1997, Joshua Bussert--the systems

administrator at Herrick Labs and

Walton’s immediate supervisor--performed

a routine back-up of the network server.

He did this by copying to a back-up tape

all of the files stored in the computers

connected to the server (including

Walton’s workstation computer). When

Bussert compared the files contained on

the back-up tape to those contained in

the original computers, he noticed that a

large number of files were present on the

back-up tape which were not longer

present on the original computer space.

Investigating this matter further,

Bussert discovered that 99% of the

missing files came from one location on

the server, a location that was assigned

to Walton. He also observed that these

files were organized into various

directories which carried different

labels, some of which suggested to him

that the files contained child

pornography. For example, one of the

directories, which contained a file named

"14-year-old model," was labeled

"users\jwalton\james\stories\incest."

Another directory was labeled

"users\jwalton\james\stories\pedophilia."

Bussert notified the Purdue University

Police Department of his discovery. At

the request of the University police,

Scott Ksander, the Associate Director of

Purdue’s computer center, examined the

hard drive on Walton’s workstation

computer. Ksander discovered several

deleted files, and hundreds of "active"

(non-deleted) files which contained

sexually explicit images.

During an interview with the Chief of

the University Police, Walton provided a

voluntary recorded statement in which he

admitted downloading child pornography

from the internet, including pictures of

children as young as five or six years

old. Walton also admitted that after he

downloaded the pornographic files, he

created subdirectories to store and

organize the files. On October 26, 1998,

FBI Special Agent Bruce Guider

interviewed Walton. During the interview,

Walton admitted that he searched the

internet for files involving pedophilia

and child pornography, and that he

downloaded approximately 50-150 such

images during a period of his life when

pedophilia was of interest to him. A

federal grand jury subsequently indicted

Walton on one count of possession of

child pornography and one count of

receiving child pornography. Walton

pleaded not guilty to the charges and his

case went to trial.

At trial, however, Walton told a

different story. He testified that he

used a newsgroup reader program called

"Agent" to access pornography sites, some

of which contained child pornography.

However, he claimed that he downloaded

files in bulk without viewing them all,

that he deleted any files that appeared

to contain child pornography, and that he

never viewed any images of children

performing sex acts. He stated that the

child pornography images which were found

on his computer "came with the

downloads." Further, Walton asserted that

when he downloaded all of the files

available from the newsgroup entitled

"alt.sex.pedophilia," he thought that the

newsgroup involved a foot fetish, not

child pornography, and that he did not

discover that they contained child

pornography until two to three weeks

later. Nevertheless, Walton admitted

during cross-examination that he did not

delete the images. When asked why, he

stated that he might have been called

away from his desk and forgotten about

the images. Finally, when asked how the

"incest" and "pedophilia" subdirectories

were created, Walton testified that they

were created by an executable or "zip"

file which was attached to one of the

messages that he had retrieved. Walton

denied having anything to do with the

creation of the subdirectories.

The government called Mark Sidell, who

wrote and developed the Agent newsreader

program, and FBI forensic computer

examiner Russell Fox. Both witnesses

testified that the files on Walton’s

computer could only have gotten there

because a user of the computer employed a

series of specific manual commands to

retrieve and store the files. Both also

testified that the Agent program could

not have organized the network file space

into subdirectories on its own without

user command. Moreover, Fox testified

that the "audit trail" of the Agent

program installed on Walton’s computer

(which records the newsgroups and files

accessed by the program) revealed that of

the many newsgroups available, the only

newsgroup that had been accessed from

Walton’s computer was

"alt.sex.pedophilia."

FBI examiners retrieved 325 non-deleted

individual files which had been

downloaded to Walton’s computer from the

"pedophilia" newsgroup. Fox testified

that of the 325 images retrieved, every

image that he examined "appear[ed] to be

children . . . under the age of 18

engaged in some sex act or some other

lascivious display." Trans. at 306. A

number of printouts of these computer

images were admitted as government’s

exhibits 10(a) and 10(b). Exhibit 10(a)

consisted of 21 pages containing

approximately 240 separate images which

were retrieved from Walton’s computer,

and exhibit 10(b) was 31 pages long and

contained approximately 352 separate

images which were originally found on

Walton’s network server file space. The

majority of the images contained in

exhibits 10(a) and 10(b) depict young,

prepubescent girls who are either engaged

in sexually explicit conduct (some with

adult males) or striking lascivious

poses. These images were displayed on a

screen at trial in full view of the judge

and jury. One of the images in exhibit

10(a) depicts a prepubescent girl who is

blindfolded and suspended from the

ceiling by her wrists, with her ankles

bound to her thighs.

The jury returned a verdict of guilty on

both counts, and Walton proceeded to

sentencing. In calculating Walton’s

sentence, the court determined Walton’s

base offense level to be 17, and then

applied a number of guideline

enhancements which brought his total

offense level up to 27. One of the

enhancements that the court applied was

sec. 2G2.2(b)(3), which prescribes a 4-

level increase for the offense of

receiving child pornography "if the

offense involved material that portrays

sadistic or masochistic conduct or other

depictions of violence." Following the

recommendation of the Probation

Department in the Presentence

Investigation Report, the court applied

this enhancement based on the single

image of the bound and blindfolded girl,

which was introduced as part of

government exhibit 10(a). During the

sentencing hearing, Walton conceded that

the image depicted the bondage of a girl

under the age of 12, but he challenged

the application of this enhancement to

his case on the ground that the sec.

2G2.2(b)(3) enhancement requires that the

defendant possess more than one image

portraying sadism, masochism, or violent

conduct. When the court asked Walton’s

counsel if that was the sole issue that

Walton wished to raise regarding the sec.

2G2.2(b)(3) enhancement, he responded

that "[t]he whole issue is that you have

to have more than one [qualifying

image]."

With a total offense level of 27 and a

criminal history category of 3, Walton

was eligible to receive between 87 and

108 months imprisonment. The court

sentenced Walton at the low end of this

range, imposing sentences of 60 months on

count 1, and 87 months on count 2, to be

served concurrently. Walton appeals his

sentence, challenging only the district

court’s decision to enhance his sentence

under sec. 2G2.2(b)(3).

DISCUSSION

Walton asserts that the district court

did not make a finding on the record that

the image in question depicted sadistic,

masochistic or violent conduct under

U.S.S.G. sec. 2G2.2(b)(3), and in light

of this "error" Walton urges us to vacate

his sentence and to remand with

instructions for the district court to

make such a finding. Walton maintains

that the record is bereft of any

indication that the district court ever

even examined the image in question, much

less that it concluded (upon analyzing

the image and applying the proper legal

standards) that it depicted sadism,

masochism or violence as contemplated by

sec. 2G2.2(b)(3). Walton claims that the

sentencing record reveals only the state

ment that the single image in question

"contained bondage, a young girl under

the age of 12 years of age." The

guideline in question does not define the

terms "sadistic," masochistic" or

"violent conduct," and the district court

made no effort to come up with a

definition and to evaluate the image in

question in light of it. Indeed, Walton

argues that the record does not show that

the government made any attempt to prove

that the picture was sadistic,

masochistic or violent in nature beyond

merely describing the picture as

"containing bondage." Walton suggests

that the court merely assumed that the

bondage of a young girl was sadistic,

masochistic or violent within the meaning

of sec. 2G2.2(b)(3) as a matter of law,

and that the case law construing the

section does not support this approach.

Walton notes that the enhancement that he

received under sec. 2G2.2(b)(3) resulted

in between 16 and 27 months additional

imprisonment for him, and he argues that

such a substantial enhancement cannot be

based on a "mere assumption." Therefore,

Walton urges us to vacate his sentence

and to remand for the fact-finding and

analysis that the law requires.

In spite of Walton’s wishes, we cannot

reach the merits of his argument because

he waived the argument during the

sentencing hearing. Waiver occurs when a

defendant "intentionally relinquishes or

abandons a known right." See United

States v. Harris, 230 F.3d 1054, 1058

(7th Cir. 2000). A waiver is "the

manifestation of an intentional choice

not to assert [a] right," distinguishing

it from forfeiture, which is an

accidental or negligent omission (or "an

apparently inadvertent failure to assert

a right in a timely fashion"). See United

States v. Cooper, 243 F.3d 411, 416 (7th

Cir. 2001). While forfeited issues are

reviewable on appeal for plain error, a

waived issue is unreviewable because a

valid waiver leaves no error to correct

and extinguishes all appellate review of

the issue. Cooper, 243 F.3d at 415;

Harris, 230 F.3d at 1058-59. We have

found waiver where "either a defendant or

his attorney expressly declined to press

a right or to make an objection" See

Cooper, 243 F.3d at 416 (citations

omitted). See, e.g., Harris, 230 F.3d at

1059 (holding that a defendant waived any

objection to the district court’s failure

to adjust his sentence downward two

levels pursuant to U.S.S.G. sec.sec.

5C1.2 and 2D1.1(b)(6) where the PSR did

not mention these guideline sections and

where both the defendant and his attorney

when queried by the district court

"affirmatively stated that they had no

objections to the PSR" apart from

another, different objection); United

States v. Richardson, 238 F.3d 837, 841

(7th Cir. 2001) (holding that a defendant

waived an objection to a sentencing

enhancement where at sentencing the court

asked the defendant’s lawyer whether he

had an objection to the enhancement and

the lawyer said "no"); United States v.

Staples, 202 F.3d 992, 995 (7th Cir.

2000) (holding that the defendant waived

his right to appeal the calculation of

his criminal history at his sentencing

hearing where the defendant had advanced

notice of the content of the PSR and an

opportunity to object but where his

attorney stated during the sentencing

hearing that neither he nor the defendant

had any objections to the PSR); United

States v. Valenzuela, 150 F.3d 664, 667-

78 (7th Cir. 1998) (holding that the

defendant waived his right to appeal the

issue of whether he had dealt crack

cocaine as opposed to some other form of

cocaine base where the defendant’s

counsel "carelessly" conceded at

sentencing that the defendant had dealt

crack and did not include any limiting

language in his concession); see also

United States v. Scanga, 225 F.3d 780,

783 (7th Cir. 2000); United States v.

Redding, 104 F.3d 96, 99 (7th Cir. 1996).

Applying these standards, it is clear

that Walton has waived the argument that

he raises on appeal. In response to the

Probation Department’s recommendation

that Walton’s sentence be enhanced under

sec. 2G2.2(b)(3), Walton filed a written

objection admitting that he had

downloaded one image depicting bondage,

but arguing that the enhancement applied

only to those defendants who receive

three or more images depicting sadism,

masochism, or other violent conduct.

Walton’s written objections raised no

other issue regarding the application of

sec. 2G2.2(b)(3). Moreover, after

admitting during the sentencing hearing

that "there was one picture that

continued [sic] bondage, a girl under the

age of 12 years of age," Walton’s counsel

affirmatively renounced any argument

against the application of sec.

2G2.2(b)(3) save for the argument raised

in his previously filed written

objections. When the district court

asked, "[c]ounsel, is the sole issue here

whether or not you have to have more than

one [qualifying image]?," Walton’s

counsel responded, "[t]he whole issue is

that you have to have more than one." By

expressly disavowing any other objection,

Walton’s counsel waived appellate review

of the argument he raises on appeal. See

Harris, 230 F.3d at 1059. While the mere

failure to make a particular objection on

a specified ground during a sentencing

hearing will typically result in plain

error review on appeal, see United States

v. McClellan, 165 F.3d 535, 551-52 (7th

Cir. 1999), Walton’s counsel did more

than this; he affirmatively indicated

that his argument that sec. 2G2.2(b)(3)

required more than one qualifying image

was the sole objection that he was

raising regarding the application of the

enhancement. This may have been a sound

tactical decision, and we will not

"override the clearly expressed wish of a

party or his lawyer, which may be backed

by excellent strategic reasons, not to

invoke a particular right." Richardson,

238 F.3d at 841. Moreover, the record

suggests that the district court did not

expressly find that the image was

sadistic, masochistic or violent within

the meaning of sec. 2G2.2(b(3) because

Walton’s counsel clearly implied that he

was not contesting that issue. A party

may not by his own actions lull the court

into believing that an express finding is

unnecessary and then object when it makes

no such finding.

Walton also challenges the manner in

which this Circuit determines a

defendant’s eligibility to receive the

sec. 2G2.2(b)(3) sentencing enhancement.

In Richardson, we held that "liability

for receiving violent child pornography

is strict," see 238 F.3d at 840, meaning

that once a defendant has been convicted

of knowingly receiving child pornography

under 18 U.S.C. sec. 2252(a)(2), a court

may enhance his sentence under sec.

2G2.2(b)(3) if it finds that some of the

child pornography received by the

defendant involves "sadism, masochism, or

other violent conduct," even if it does

not find that the defendant intended to

receive such images. Walton urges us to

overrule Richardson, arguing that the

holding is inconsistent with the

underlying statute, with Supreme Court

precedent, and with decisions of the 5th

and 11th Circuits. Specifically, Walton

notes that 18 U.S.C. sec. 2252 proscribes

only the knowing receipt and possession

of child pornography, and that in

construing 18 U.S.C. sec. 2252(a), the

Supreme Court determined that Congress

intended the term "knowingly" to "extend[

] both to the sexually explicit nature of

the material and to the age of the

performers." See United States v. X-

Citement Video, Inc., 513 U.S. 64, 78

(1994). In so holding, the Court relied

on prior precedent which established that

common law offenses against the state,

the person, property, or public morals

"presume a scienter requirement in the

absence of express contrary

[Congressional] intent." See id., at 71-

72 (citing Morissette v. United States,

342 U.S. 246, 255 (1952)). After

concluding that a violation of sec. 2252

was akin to such a common law offense,

the Court applied Morissette and its

progeny and ruled that "the presumption

in favor of scienter requirement should

apply to each of the statutory elements

that criminalize otherwise innocent

conduct." X-Citement Video, 513 U.S. at

72. Therefore, Walton argues that holding

a defendant strictly liable for receipt

or possession of sadistic, masochistic,

or violent child pornography without

requiring the government to prove that

the defendant intended to receive or

possess child pornography of such a

character punishes conduct that Congress

did not intend to punish, and is

therefore inconsistent with the Supreme

Court’s reading of the statute that the

guideline section implements. Moreover,

Walton points to the decisions of the 5th

and 11th circuits, which hold or assume

that enhancement under sec. 2G2.2(b)(3)

has an intent requirement. See, e.g.,

United States v. Tucker, 136 F.3d 763,

764 (11th Cir. 1998); United States v.

Kimbrough, 69 F.3d 723, 734 (5th Cir.

1995). In light of all of this, Walton

asks us to vacate his sentence and to

remand to the district court for a

determination of whether he knowingly and

intentionally obtained an image depicting

sadistic, masochistic or violent conduct

under sec. 2G2.2(b)(3).

We deny Walton’s request for two

reasons. First, he waived the argument

during the sentencing hearing. As we have

noted, Walton told the sentencing court

that the "whole issue" that he was

raising with respect to the application

of sec. 2G2.2(b)(3) to his sentence was

the question of whether that guideline

section required the defendant to receive

more than one qualifying image. In so

doing, he affirmatively abandoned all

other arguments against the application

of the enhancement in his case. See

Harris, 230 F.3d at 1059; see generally

Holmes v. Pension Plan of Bethlehem Steel

Corp., 213 F.3d 124, 139 (3d Cir. 2000)

(citation omitted) (declining to

entertain a challenge to the court’s

opinion in a prior case where, inter

alia, the appellant failed to raise the

issue below and therefore waived it on

appeal). Second, even if we were to

review Walton’s legal challenges to

Richardson de novo, we would find them

unavailing. We may not overturn Circuit

precedent without compelling reasons. See

In re Bentz Metal Prods. Co., Inc., 231

F.3d 1029, 1033 (7th Cir. 2000) (vacated

on other grounds, No. 00-1320, slip op.

(7th Cir. June 7, 2001)). While we are

not absolutely bound by the holdings in

our prior decisions and "must give fair

consideration to any substantial argument

that a litigant makes for overruling a

previous decision," see id. (quoting

Colby v. J.C. Penney Co., Inc., 811 F.2d

1119, 1123 (7th Cir. 1987)), we are

obliged to "give considerable weight to

[our prior] decisions unless and until

they have been overruled or undermined by

the decision of a higher court, or other

supervening developments, such as

astatutory overruling." Id. There have

been no such supervening developments

here, and Walton gives us no good reason,

much less a "compelling" reason, to

overturn Richardson. Richardson is fully

consistent with X-Citement Video, and

contrary to Walton’s suggestion it does

not eliminate or diminish the scienter

requirement of 18 U.S.C. sec. 2252.

Indeed, we emphasized this very point in

Richardson by noting that because

Richardson was convicted of knowingly

receiving child pornography under 18

U.S.C. sec. 2252(a)(2), the "usual

requirement that mens rea be proved to

convict a person of a serious offense"

was satisfied. See Richardson, 238 F.3d

at 840. We were careful to note that it

was his conviction for knowing receipt of

child pornography that exposed Richardson

to the statutory maximum of 15 years, and

that the application of sec. 2G2.2(b)(3)

merely "enhanced his sentence within that

range to reflect the fact that receiving

bondage and torture pictures aggravates

the offense." See id. Therefore,

Richardson did not flout X-Citement

Video’s ruling that "the presumption in

favor of scienter requirement should

apply to each of the statutory elements

that criminalize otherwise innocent

conduct"; rather, it merely authorized

the enhancement of punishment (within the

prescribed statutory maximum) for conduct

that had already been determined to be

knowingly criminal. For the same reason,

applying Richardson in this case and

enhancing Walton’s sentence under sec.

2G2.2(b)(3) without requiring any proof

that Walton intentionally received images

depicting sadism, masochism, or other

violent conduct does not deprive Walton

of sec. 2252’s scienter requirement. As

the government notes, Walton’s knowledge

and intent regarding his receipt and

possession of prohibited child

pornography has been proven. His

knowledge that he received and possessed

such pornography was an element of the

charged offense, and in convicting Walton

the jury necessarily found that he had

the requisite intent. Indeed, Walton does

not appeal the fact of his conviction or

argue that the evidence that he intended

to receive and possess child pornography

was insufficient to sustain the

conviction. Therefore, the application of

the sentencing enhancement under sec.

2G2.2(b)(3) did not somehow skirt the

statutory intent requirement, but merely

increased the punishment within the range

authorized for a proven violation of the

statute (which entails proof of the

requisite intent). In short, Walton was

not convicted of a strict liability crime

(in violation of X-Citement Video), but

instead was merely subject to a strict

liability sentencing enhancement. Cf.

United States v. Singleton, 946 F.2d 23,

26 (5th Cir. 1991).

In addition, the fact that other

circuits have come to a different

conclusion and have imposed an intent

requirement on sec. 2G2.2(b)(3) is not a

sufficiently compelling reason, standing

alone, to prompt us to overturn

Richardson. We decided Richardson only a

few months ago, at which time no judge in

active service voted to hear the case en

banc even though every judge was aware of

the circuit split that the opinion would

create. See Richardson, 238 F.3d at 840-

41. Upon reconsidering Richardson, we

find it to be well-reasoned and based

upon the sound observation that

sentencing enhancements are frequently

imposed on the basis of strict liability

or on the basis of the degree of harm

caused by the conduct at issue rather

than the defendant’s intentions. See,

e.g., United States v. Fry, 51 F.3d 543,

546 (5th Cir. 1995) (affirming the

enhancement of a defendant’s sentence

under sec. 2K2.1(a)(3) based upon

possession of a machine gun despite the

argument that the defendant did not know

that the gun he possessed had become a

machine gun by alteration); United States

v. Williams, 49 F.3d 92, 93 (2d Cir.

1995) (affirming a sentencing enhancement

under sec. 2K2.1(b)(4) for possession of

a firearm with an altered or obliterated

serial number where the defendant argued

that he was unaware of the condition of

the serial number, and ruling that sec.

2K2.1(b)(4) is a strict liability

provision); Singleton, 946 F.2d at 25-27

(holding that an upward adjustment could

be assessed under sec. 2K2.1(b)(1)

against a felon who possessed a stolen

gun whether or not he knew the gun was

stolen). Therefore, even if he had not

waived his arguments, we would decline

Walton’s invitation to overrule

Richardson.

CONCLUSION

For the foregoing reasons, we AFFIRM

Walton’s sentence.