# United States v. Tom Vig, United States of America v. Donovan Vig

> Court of Appeals for the Eighth Circuit · February 2, 1999 · 167 F.3d 443

URL: https://www.frixlaw.com/law-library/cases/9491869

## Case

- **Full name:** UNITED STATES of America, Appellee, v. Tom VIG, Appellant; United States of America, Appellee, v. Donovan Vig, Appellant
- **Court:** Court of Appeals for the Eighth Circuit
- **Decided:** February 2, 1999
- **Citations:** 167 F.3d 443; 51 Fed. R. Serv. 473; 1999 U.S. App. LEXIS 1501; 1999 WL 47733
- **Precedential status:** Published
- **Opinion:** Dissent by Arnold
- **Judges:** Fagg, Beam, Arnold
- **Cited by:** 134 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9491869

## How later opinions describe it (automated extraction)

- holding that it was unnecessary for the government, as a part of its affirmative case, to negate what is merely unsupported speculation that the pictures showed virtual children as opposed to real ones
- holding that where defendant simply argues that images may or may not be of real children, the government is not required to negate as part of its proofs the unsupported speculation
- holding that the “images were viewed by the jury which was in a position to draw its own independent conclusion as to whether real children were depicted.”
- holding that the "images weire viewed by the jury which was in a position to draw its own independent conclusion as to whether real children were depicted”

## Opinion text

MORRIS SHEPPARD ARNOLD, Circuit Judge,
dissenting.
I respectfully dissent from the court’s judgment because I think that United States v. Lacy, 119 F.3d 742 (9th Cir.1997), cert. *451 denied, — U.S. -, 118 S.Ct. 1571 , 140 L.Ed.2d 804 (1998), was correctly decided. Even if that case, for the reasons that the court mentions today, adopted a construction of the statute that is problematic, I believe that the rule of lenity requires a result different from the one that the court reaches in this case.
It seems to me that the phrase “other matter” lends itself as plausibly to a construction that favors the defendants as it does to the opposite construction. The view of the Seventh Circuit, and of the court today, that “other matter” means “anything containing a visual depiction” is a reasonable one, see United States v. Hall, 142 F.3d 988, 999 (7th Cir.1998), but the view of the Ninth Circuit that “other matter” includes only physical objects like those enumerated in the statute is equally reasonable. See United States v. Lacy, 119 F.3d at 748 .
Both parties to the case maintain that the other’s interpretation leads to absurdity. These arguments are unhelpful because neither interpretation can avoid absurd results. The court points out that interpreting “other matter” to mean a hard drive rather than a file would be absurd because someone who possessed three books containing one proscribed image each would be in violation of the statute, while someone who possessed a hard drive containing hundreds of such images would not be. But the court’s interpretation also leads to an absurd result: Under the court’s holding, someone who possessed three books containing one proscribed image each would be in violation of the statute, while someone who possessed a computer file containing hundreds of such images would not be. There is in fact no interpretation that can prevent evident incongruities: There is no question that a person who possessed a thousand-page book filled with images of child pornography would not be in violation of the statute. Congress ensured such anomalies when it wrote the statute as it did.
The other arguments that the parties advance on the meaning of “other matter” create an equally unresolvable battle of analogies. Is a hard drive like a book or a library? Is it significant that computer files can be made into tangible objects by printing, or is printing from files just like tearing pages from a book? These kinds of inquiries can only give rise to speculation about congressional intent, and to guesswork about which of two reasonable alternative constructions is the right one.
As the court itself points out, moreover, the relevant legislative history “reveals no insight into what Congress intended the precise scope of ‘other matter’ to be.” Once we have seized “ ‘every thing from which aid can be derived’ ” and “can make ‘no more than a guess as to what Congress intended,’” Reno v. Koray, 515 U.S. 50, 65 , 115 S.Ct. 2021 , 132 L.Ed.2d 46 (1995), quoting, respectively, Smith v. United States, 508 U.S. 223, 239 , 113 S.Ct. 2050 , 124 L.Ed.2d 138 (1993) (internal quotation marks omitted), and Ladner v. United States, 358 U.S. 169, 178 , 79 S.Ct. 209 , 3 L.Ed.2d 199 (1958), our duty is to adopt the construction of the relevant statute that favors the defendants. The statutory language is grievously ambiguous, and, after looking to the arguments of the parties and the legislative history, we still can make “no more than a guess” as to which of two reasonable interpretations would accomplish Congress’s intention. The rule of lenity should therefore apply, and I would thus reverse the judgment of the trial court.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9491869. Public record. Not legal advice.