Opposition Brief — Peel v. United States

No. 10-83

In the Supreme Court of the Gnited States

GARY E PEEL, PETITIONER

he

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

LOTHL UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRC CTT

BRIEF FOR THE UNITED STATES IN OPPOSITION

NiLAl Kt'win KATYAL

Acting Solicitor General

Conmnsel of Recoid

LANNY A BRICIR

sissestant Attorucy General

JOHN M PEILETUERI

Attorney

Department of Justice

Washington, DC 20330-0001

SupremeCtBirvefs@ usdop.qor

(202) 114-2271%

QUESTIONS PRESENTED

1. Whether 18 U.S.C. 2252A(a)(5)(B) violates the

First Amendment as applied to petitioner because the

statute makes it unlawful to possess (in 2006) sexually

explicit photographs of a 16-year-old gir] that were pro.

duced before Congress outlawed child pornography and

at a time when the age of consent in the State where the

photographs were produced was 16.

2. Whether petitioner’s convictions for possessing

(in 2006) sexually explicit photographs of a 16-year-old

girl violate the Ex Post Facto Clause of the Constitution

beeause the photographs were produced before Con-

gress outlawed child pornography and at a time when

the age of consent in the State where the photographs

were produced was 16.

TABLE OF CONTENTS

Page

Bo om

Jurisdiction ........

Statement .. 2

Argument 9

INE ey ne hy ne cue ke weak, 17

TABLE OF AUTHORITIES

Cases:

Ashcroft v. Free Speech Coalition, 535 U.S. 234

SE i ncict a ee he ee Ce ree ¢, 11,138, 14

California Dep't of Corr. v. Morales, 514 U.S. 499

DEN ccs ss ye diale'c es a ee a eee 15

Collins v. Youngblood, 497 U.S. 37 (1990) 15

Cutter v. Wilkinson, 544 U.S. 709 (2005) 1]

Kasley v. Reuss, 582 F.3d 592 (7th Cir. 2008) 1]

Hamuton-Brown Shoe Co. v. Wolf Bros. & Co.,

ee Whats BOE NSORO) 0 seh a vch acres ees re 9

Johnson v. United States, 529 U.S. 694 (2000) . . 16

Major League Baseball Players Ass'n v. Garvey,

baz US. 504 (Z00]) ...... 0. cee. LO

Miller v. Florida, 482 U.S. 423 (1987) .... . 15

New York v. Ferber, 458 U.S. 747 (1982) ........ 13, 14,15

People v. Beksel, 261 N.E.2d 40 (Ill. App. Ct. 1970) 14

People v. Keegan, 286 N.E.2d 345 (ill. 1971),

cert. denied, 406 U.S 964 (1972) ............ 14

Puckett v. United States, 129 S. Ct. 1429 (2009) Fe -

United States v. Bateman, 805 F. Supp. 1058 (D.N.H

1992) lo

Cases—Continued:

United States v. Felaczano, 223 F.3d 102 (2d Cir

2000), cert. denied, 5382 U.S. 948 (2001)

l/nited State

sv. Juvenile Male:

590 F.3d 924 (9th Cir. 2010), petition for cert.

pending, No. 09-940 (filed Feb. 9, 2010)

30 8. Ct.

l/nited State

l/nated State

l/nited States

liniated State

LORY)

l/nited State

2518 (2010)

sv. Marcus, 1308. Ct. 2159 (2010)

sv. Olano, 507 U.S. 725 (1993) .

sv. Paton, 110 F.3d 562 (Sth Cir. 1997)

sv. Petrtyean, 883 F.2d 1341 (7th Cir

sv. Porter, 709 F. supp. 770 (K.D. Mich.

1989), aff’d, 895 F.2d 1415 (6th Cir.), cert. denied,

1498 U.S. 1018 (1990)

United State

sv. Trupin, 117 F.3d 678 (2d Cir. 1997),

cert. denied, 522 U.S. 1051 (1998) .

l/nited Stat

sv. Waters, 23 F.3d 29 (2d Cir.), cert

denied, 513 U.S. 867 (1994)

United State

U/nited Stat

(1994)...

sv. Walliams, 504 U.S. 36 (1992)

i v. xX Cite Wu rt Video. ly 513 {] Ne 64

VM1 v. United States, 508 U.S. 946 (1998)

Wills v. Texas, 511 U.S. 1097 (1994)

Constitution, st

U.S. Const.

atutes and rule

Art. I, § 9, Cl. 8 (ex Post Facto Clause)

Amend.

Amend. \

(Double Jeopardy Clause)

Statutes and rules—Continued Page

Child Pornography Prevention Act of 1996, Pub. L.

No. 104-208, Div. A, Tit. 1, § 101(a), 110 Stat. 3009 13

Child Protection Act of 1984, Pub. L. No. 98-292,

§ 5(a), 98 Stat. 205

Crime Control Act of 1990, Pub. L. No. 101-647, § 328,

Re ees MR 5 eh Av ba be bee e ess eave ae |

federal Juvenile Delinquency Act,

18 U.S.C. 5031 et seg. ....... ae 16

Protection of Children Against Sexual Exploitation

Act of 1978, Pub. L. No. 95 225, § 2253(1

tO Ear eee i

Sex Offender Registration and Notification Act

Pub. L. No. 109-248, Tit. 1, 120 Stat. 590 16

18 U.S.C. 152(6) ...... 2,93

IS ULS.C. 1512(e)(2) .. ~ o

IS U.S.C. 2252A(a)(5)(B) Z, d, Oo, 1Z, 15, Ve

1S U.S.C. 2252A(c) 1, 5, 6, 7, 10

IS U.S.C. 2256(1) {

18 U.S.C. 2256(8)(A) 3

IS U.S.C. 3558(a SY

Fed. R. Crim. P::

Rule 12(b)(3)(A) 12

Rule 12(b)(3)(B) 1?

Rule 12(e) |?

Rule 52(b) )

In the Supreme Court of the Gnited States

GARY E. |

UNITED STATES 0!

ON PETITION FOR A WRIT OF CERTIORAR:

lO THE UNITED STATES COURT OF APPEA

FOR THE SEVENTH CIRCI

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

»«)

The opinion of the court of appeals (Pet. App. la-22a

is reported at 595 F.3d 763. The relevant opinion of the

district court (Pet. App. 23a-36a) is unreported but is

available at 2007 WL 2126257.

JURISDICTION

The judgment of the court of appeals was entered 01

February 12, 2010. A petition for rehearing was denied

on March 15, 2010 (Pet. App. 45a). On June 2, 2010, Ju

tice Stevens extended the time within which to file a

petition for a writ of certiorari to and including August

12, 2010, and the petition was filed on July 14, 2010. The

jurisdiction of this Court is invoked under 28 U.S.C

1254(]

STATEMENT

Following a jury trial in the United States District

Court for the Southern District of Illinois, petitioner

was convicted of one count of bankruptcy fraud, in viola

tion of 18 U.S.C. 152(6); one count of obstruction of jus

tice, in violation of 18 U.S.C. 1512(c)(2); and two counts

of possession of child pornography, in violation of

18 U.S.C. 2252A(a)(5)(B). The district court sentenced

petitioner to 144 months of imprisonment, to be followed

by three years of supervised release. The court of ap

peals affirmed in part and reversed in part, remanding

to the district court with instructions to vacate either

the bankruptcy fraud or the obstruction of justice con

viction, and resentence petitioner after redetermin

ing the advisory Sentencing Guidelines range.

Pet. App. la-22a, 39a-41a.

1. In 1974, petitioner had an affair with his then

wife’s 16-year-old sister. During the affair, which lasted

several months, petitioner took several nude, sexually

explicit photographs of his sister-in-law. The photo

graphs depicted the 16-year-old girl sitting naked on the

floor of petitioner’s law office with her legs spread and

with the focus on the girl’s pubic area. When his sister

in-law requested the pictures, petitioner gave her some,

which she destroyed, but retained others without her

knowledge. Pet. App. la-2a, 25a-26a.

In 2003, petitioner and his wife divorced and agreed

to a marital settlement. The following year, petitioner

filed suit in Illinois state court seeking to vacate the set

tlement. Petitioner subsequently filed for bankruptcy

and asked the bankruptcy court to discharge his finan

cial obligations to his ex-wife under the terms of the

marital settlement. Petitioner’s ex-wife opposed the

discharge and filed a claim for the money petitioner

Pet. App. 2a

During the course of settlement negotiations, pet

tioner told his ex-wife t of

her younger sister and that he would make those pic

tures public, and send them to her elderly parents, if th

ex-wife did not agree to a favorable settlement Pet

tioner then placed photocopile: of the picture: in his e>

wife’s mailbox. The ex-wife informed law enforceme

authorities about the threat and, at their direction, re

eorded sub equent conversations wit! petitioner he

recorded conversations confirmed that petitioner

blackmailing his ex-wife with the sexually explicit pho

graphs. Pet. App. 2a-3a; 29/2009 Gov't C.A. Br. 4

2. On March 22, 2006, a grand jury in the South

District of Lllinois returned an indictment charging peti

tioner with one count of ban} rupucy traud, in‘ iolation «

Is U.S.C 15b2(6): one count of obstruction of JUSTICE

idlation of 18 U.S.C. 1512(¢)(2): and two counts of po

ession of child pornography, n violation of ]

—AZA(ay(b)(B Indictment 3

ndictment charged petitione

child pornography in Jan lary ZO0U6

At that time, Pe Uws.C -2hH2ZA(a) (i) made

ul to knowingly DO {

re of child pornograp! at was produced

©, naterial Loa. nave I hipped

transported in interstate a

an (child pornograp!

Wal ce pict

the prodauctiol

>

® OL a minor

( PP iV

cit len

0G Py

(I

vray

6

With respect to petitioner’s child pornography con-

victions, petitioner’s newly appointed counsel made two

arguments. 09/11/2009 Pet. C.A. Br. 28-38. First, peti-

tioner argued that the evidence was insufficient to es-

tablish that he knowingly possessed child pornography.

Id. at 28-33. According to petitioner, while the evidence

may have shown that he knew the age of his ex-wife's

sister at the time the photographs were taken in 1974,

the evidence was insufficient to show that he knew the

photographs depicted a 16-year-old girl at the time of

his unlawful possession in 2006. Jd. at 32-33. Second,

petitioner argued that the district court should have

granted a judgment of acquittal because he could have

successfully asserted the affirmative defense available

under 18 U.S.C. 2252A(c), since his ex-wife’s sister

was “an adult at the time the material was produced.”

09/11/2009 Pet. C.A. Br. 33-38. Because there was no

federal child pornography law at the time the pictures

were produced, and because the age of consent in the

State of production (Illinois) was 16 at that time, peti-

tioner argued that his ex-wife’s sister was an “adult”

when the photographs were produced. /d. at 37-38. In

other words, petitioner argued, 18 U.S.C. 2252A(c) is a

“grandfather clause” “which makes legal alleged child

pornography that depicts an individual who was an adult

at the time the material was produced.” 11/20/2009 Pet.

C.A. Reply Br. 19 (citation omitted).

Petitioner acknowledged that he “neither provided

the district court with formal notice that he intended to

invoke 18 U.S.C. [] 2252A(e)’s affirmative defense nor

explicitly raised that defense at trial.” 09/11/2009 Pet.

C.A. Br. 34. He argued, however, that the notice re-

quirement was really meant for “virtual” child pornogra-

phy cases and that, in the alternative, the court of ap-

éé

7

peals should treat petitioner as having forfeited the af-

firmative defense and, thus, review should be for plain

error. /d. at 34-36.

b. The court of appeals affirmed petitioner’s child

pornography convictions. Pet. App. 10a-15a. As to peti-

tioner’s first argument, the court concluded that the

evidence was sufficient to establish that, in 2006, peti-

tioner knew that his ex-wife’s sister had been younger

than 18 years old at the time the photographs were pro-

duced. /d. at 15a. As to petitioner’s second argument,

the court of appeals first noted that petitioner “did not

raise th{is] issue in the district court.” 7d. at lla. The

court also made clear that petitioner was not now argu-

ing that “Congress can’t criminalize the continued pos-

session of pornography that was legal when created,”

nor was he arguing “that because the photos of his

sister-in-law were not illegal when he took them, they

could not constitute sexual abuse of a minor.” /d. at 11a,

13a-14a. Instead, the court explained, petitioner was

arguing that the affirmative defense “grandfather|s] the

possession of pornography that was legal when it was

created.” /d. at lla.

The court of appeals rejected petitioner’s argument,

eencluding that 18 U.S.C. 2252A(c) could not be read

such that “anyone who happened to have pornographic

photographs of 16- and 17-year-olds taken before 19%4

would be free to market them.” Pet. App. 14a-15a. The

court reasoned that the affirmative defense under

18 U.S.C. 2252A(c) was largely irrelevant after this

Court’s decision in Ashcroft v. Free Speech Coalition,

535 U.S. 234 (2002). Pet. App. 13a-14a. When the affir-

mative defense was added to the statute in 1996, the

court explained, the purpose was “to exculpate child

pornography made with adult rather than child models,

8

at a time when the Supreme Court had not yet ruled

that the making of such pornography could not constitu-

tionally be punished, and therefore at a time when Con-

gress thought it could place the burden of proof concern-

ing the age of the model used in producing the pornogra-

phy on the defendant rather than on the government.”

Id. at 14a. The court continued, because the government

is now required to “prove beyond a reasonable doubt

that the apparent child in the pornographic image Is a

real child, the only work left for the provision creating

the affirmative defense is to require * * * that the

defendant notify the government of his intention to chal-

lenge the government’s proof that a child was used.”

[bid.; id. at 1la-12a (noting that the government’s law-

yer conceded at argument “that to prove a violation of

the statute [it] has to prove that a real-life minor, not a

computer simulation or an adult looking like a minor,

was used in the creation of the pornography”). The

court of appeals thus upheld petitioner’s child pornogra-

phy convictions.

The court of appeals held, however, that petitioner’s

convictions for both bankruptcy fraud and obstruction of

justice violated the Double Jeopardy Clause of the Fifth

Amendment. Pet. App. 3a-10a. The court also con-

cluded that the district court erred in its calculation of

intended loss for the purpose of determining the advi-

sory Guidelines range for those convictions. /d. at 15a-

21a. The court of appeals therefore remanded the case

to the district court with “directions that the judge va-

cate either the bankruptcy fraud conviction or the ob-

struction of justice conviction, recalculate the intended

loss, redetermine the guidelines sentencing range, and

resentence the defendant in accordance with 18 U.S.C.

[| 3553(a).” Td. at 22a.

ARGUMENT

Petitioner now argues that the child pornography

statute violates the First Amendment as applied to him

(Pet. 7-12), and that the interpretation of the statute

adopted by the court of appeals raises serious ex post

facto concerns (Pet. 13-15). The court of appeals’ deci

sion is interlocutory, petitioner did not raise either of

these constitutional claims below, and the court of ap-

peals did not pass on them. Because petitioner also

failed to raise either claim in the district court, they are

waived or, at most, reviewable for plain error. Petition-

er cannot satisfy that stringent standard and his newly

asserted claims do not implicate a conflict with the deci-

sions of this Court or any other court of appeals. Fur

ther review is not warranted.

1. As an initial matter, this Court’s review of peti-

tioner’s constitutional claims is unwarranted at this time

because the ease is in an interlocutory posture. See, e.g.,

VMI v. United States, 508 U.S. 946, 946 (1993) (Sealia,

J., respecting denial of certiorari) (noting that this

Court “generally await[s] final judgment in the lower

courts before exercising [its] certiorari jurisdiction”);

Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S.

251, 258 (1916) (describing the interlocutory nature of a

decision as “a fact that of itself alone furnishe[s] suffi-

cient ground for the denial of” certiorari). The court of

appeals reversed in part and remanded with “directions

that the judge vacate either the bankruptey fraud con

viction or the obstruction of justice conviction, recalcu-

late the intended loss, redetermine the guidelines sen-

tencing range, and resentence the defendant in accor-

dance with 18 U.S.C. [] 3553(a).” Pet. App. 22a. After

the district court resentences petitioner, he will be able

to raise his current claims—together with any other

10

claims that may arise during resentencing—in a single

petition for a writ of certiorari. See Major League

Baseball Players Ass’n v. Garvey, 532 U.S. 504, 508 n.1

(2001) (per curiam).

2. Review is also unwarranted because petitioner

never challenged his child pornography convictions on

First Amendment or ex post facto grounds in the court

of appeals or the district court. Accordingly, no court

has passed on these constitutional questions. This

Court’s “traditional rule * * * precludes a grant of

certiorari” when “the question presented was not

pressed or passed on below.” United States v. Williams,

504 U.S. 36, 41 (1992) (internal quotation marks omit-

ted). There is no reason to depart from that general

rule here.

In the district court, petitioner failed to even raise

the affirmative defense set forth in 18 U.S.C. 2252A(c),

or give notice as required by statute. 09/11/2009 Pet.

C.A. Br. 34. And, on appeal, petitioner made only the

statutory interpretation argument that his child pornog-

raphy convictions should be overturned because he

could have raised a successful affirmative defense under

18 U.S.C. 2252A(c), since his ex-wife’s sister was

an “adult” at the time the images were produced.

09/11/2009 C.A. Br. 33-38. Whereas petitioner now

claims that the First Amendment is implicated because

the photographs he was convicted of possessing “have

nothing at all to do with child sexual abuse, as they were

taken in the course of a relationship between consenting

adults,” Pet. 10, before the court of appeals “[hJje dlid]

not argue that because the photos of his sister-in-law

were not illegal when he took them, they could not. con-

1]

stitute sexual abuse of a minor,” Pet. App. 13a-l4a.*

Similarly, whereas petitioner now argues that his con-

victions raise ex post facto concerns because he “became

subject to criminal prosecution for possessing materials

that previously” were legal when Congress outlawed the

possession of child pornography, Pet. 13, before the

court of appeals he did “not argue that Congress can’t

criminalize the continued possession of pornography

that was legal when created,” Pet. App. iia. + imally,

whereas petitioner now argues that “it is far from clear”

that the affirmative defense provisions of 18 U.S.C.

2252A(c) could save the child pornography statute from

Kirst Amendment challenge, Pet. 11, petitioner urged

the court of appeals to overturn his convictions because

he could have successfully raised that defense at trial,

09/11/2009 Pet. C.A. Br. 33-38.

This Court should not be the first court to review

these constitutional questions. Cf. Cutter v. Wilkinson,

544 U.S. 709, 718 n.7 (2005) (“[Wle are a court of review,

not of first view.”).

3. Even if this Court were to overlook petitioner’s

failure to raise these claims in the court of appeals, this

In his petition for rehearing, petitioner suggested that the court of

appeals’ ruling conflicts with Asheroft v. Free Speech Coalition, 535

U.S. 234 (2002), since petitioner “could not have committed sexual

abuse of” his ex-wife’s sister “because she was above the age of consent

at th[at] time.” 02/26/2010 Pet. C.A. Petition for Reh’g 10-11. This

Court’s traciaonal practice, however, is “to decline to review claims

raised for the first time on rehearing in the court below.” Wells v.

Texas, 511 U.S. 1097, 1097 (1994) (O’Connor, J., concurring in denial of

certiorari), Hasley v. Reuss, 5382 F.8d 592, 595 (7th Cir. 2008) Gssue

cannot be raised for first time in rehearing petition). In any case, the

rehearing petition does not even mention the First Amendment—let

alone argue that petitioner's convictions were constitutionally invalid

for that reason.

1?

case does not squarely present the issues petitioner

seeks to raise. Because petitioner did not raise either

constitutional claim before trial or at any other time in

the district court, the claims are waived. See Fed. R.

Crim. P. 12(b)(8)(A)-(B) and (e); United States v. Peti-

tHyean, 883 F.2d 1341, 1344 (7th Cir. 1989) (“defenses and

objections based on defects in the indictment must be

raised prior to trial,” “[o]therwise, they are waived”);

United States v. Feliciano, 223 F.3d 102, 125 (2d Cir.

2000) (facial and as-applied constitutional challenges not

raised in district court were waived on appeal), cert.

denied, 5382 U.S. 948 (2001).

At most, petitioner’s newly asserted claims would be

reviewable only for plain error. See Fed. R. Crim. P.

52(b). In order to satisfy that standard, petitioner must

show that “(1) there is an ‘error’; (2) the error is ‘clear

or obvious, rather than subject to reasonable dispute’;

(3) the error ‘affected the appellant’s substantial rights,

which in the ordinary case means’ it ‘affected the out-

come of the district court proceedings’; and (4) ‘the error

seriously affect{s] the fairness, integrity or public repu-

tation of judicial proceedings.” See l/nited States v.

Marcus, 13808. Ct. 2159, 2164 (2010) (brackets in origi-

nal) (quoting Puckett v. United States, 129 8. Ct. 1423,

1429 (2009)). Petitioner cannot establish error, let alone

error that is “obvious” under current law. See //nited

States v. Olano, 507 U.S. 725, 734 (1993) (“At a mini-

mum, a court of appeals cannot correct an error pursu-

ant to Rule 52(b) unless the error is clear under current

law.”).

a. Petitioner argues (Pet. 7-12) that 18 U.S.C.

2252A(a)(5)(B) violates the First Amendment, as applied

to him, because the 16-year-old child depicted in the

photographs was actually an “adult” at the time the pic-

tures were produced—and, thus, his possession of the

sexually explicit, but nonobscene, images was constitu

tionally protected. To reach the conclusion that his ex-

wife’s sister was an “adult” at the time the pictures were

produced, petitioner appears to argue that (i) child por-

noyraphy can only be banned consistent with the First

Amendment if the images depict the crime of child sex

abuse, Pet. 10-12, and (ii) the photographs in question do

not involve the crime of child sex abuse because, in 1974

when the photographs were produced, the age of consent

in Illinois was 16 and there was no federal child pornog-

raphy law on the books, Pet. 2-8. That argument fails.

As this Court held in New York v. Ferber, 458 U.S.

747 (1982), depictions of real children engaging in sexu-

ally explicit conduct lack First Amendment protection.

Petitioner nevertheless asserts that the First Amend-

ment does protect child pornography as long as produc-

tion of the underlying image was not itself a crime. If

petitioner’s argument were correct, the market for child

pornography produced overseas, in countries where

there is no age of consent (or where the age of consent

is, for example, 12 years old) and where the production

of child pornography is legal, would be constitutionally

protected. This Court’s cases provide no support for

such a narrow reading of Ferber.

Petitioner relies on Ashcroft v. Free Speech Coali-

tion, 535 U.S. 234 (2002), but such reliance is misplaced.

In that ease, this Court addressed the narrow issue of

whether the generally applicable criminal ban on “vir-

tual” child pornography in the Child Pornography Pre

vention Act of 1996, Pub. L. No. 104-208, Div. A, Tit. I,

§ 101(a), 110 Stat. 3009, survived constitutional scrutiny.

In reaching the conclusion that the ban violated the

First Amendment, the Court distinguished “virtual”

14

child pornography from child pornography that depicted

actual children. F'ree Speech Coalition, 535 U.S. at 240.

Sexually explicit materials depicting actual children ean

be banned even if not obscene, the Court explained, be-

cause the use of a child in the production of such mate

rial exploits the child and is itself a form of sexual abuse.

Td. at 240, 249-250. The Court did not, however, hold

that the sexual exploitation of a child occurs only when

the law in effect at the time of production criminalizes

the underlying act. Nor would such an approach make

sense. Whether production of the images constitutes

child sex abuse in that place or at that time, the contin-

ued possession and dissemination of those images re-

mains a “permanent record of the children’s participa-

tion and the harm to the child”—harm that is not re-

stricted to then-chargeable sexual abuse. Ferber, 458

U.S. at 759; cf. Free Speech Coalition, 535 U.S. at 242

(explaining that a separate provision, which prohibited

the computer alteration of innocent pictures of real chil-

dren, was not challenged but would “implicate the inter-

ests of real children and are in that sense closer to the

images in Ferber’).

In any event, contrary to petitioner’s suggestion

(Pet. 12), the fact that petitioner’s then-sister-in-law was

above the age of consent in Illinois at the time the photo-

graphs were taken does not mean that petitioner’s sex-

ual relationship with a 16-year-old girl was lawful at that

time. In 1974, any person age 14 or older who had sex-

ual intercourse with “any person under the age of 18”

was guilty under Illinois law of “contributing to the sex-

ual delinquency of a child.” People v. Keegan, 286

N.E.2d 345, 346 (Ill. 1971), cert. denied, 406 U.S. 964

(1972); ef. People v. Beksel, 261 N.E.2d 40, 44-45 (IIL.

App. Ct. 1970) (allowing the commitment of individuals

Ld

who are “suffering from a mental disorder” and have

“demonstrated propensities toward acts of sexual as-

sault or acts of sexual molestation of children,” and de

fining “children” to mean people under the age of 18)

(emphasis omitted).

In sum, the First Amendment does not preclude Con

gress from banning the possession of sexually explicit

images of children under 18 that were created before

1984 in the more than a dozen states (or federal territo-

ries) where the age of consent was 16 years old. See

Ferber, 458 U.S. at 764 n.17. Rather, only “nonobscene,

sexually explicit materials involving persons over the

age of 17 are protected by the First Amendment.”

United States v. X-Citement Video, Inc., 513 U.S. 64, 72

(1994).

b. Petitioner contends (Pet. 13-15) that his convic

tions “raise|| significant ea post facto concerns.” That

claim is similarly lacking in merit.

Section 2252A(a)(5)(B) does not criminalize conduct

that occurred wholly before the current version of the

statute was enacted. To the contrary, petitioner’s con

victions clearly rest on post-2mendment conduct. Peti-

tioner is being punished for his possession of child por-

nography in 2006—16 years after the statute was

amended to criminalize the possession of child pornogra-

phy involving children under the age of 18. See p. 4 n.1,

supra. Thus, Section 2252A(a)(5)(B) does not violate the

Ex Post Facto Clause because it does not “operate| | ret

roactively” in the sense of applying to conduct that was

“completed before its enactment.” /ohnson v. United

States, 529 U.S. 694, 699 (2000); see California Dep't of

Corr. v. Morales, 514 U.S. 499, 505 (1995); Collins v.

Youngblood, 497 U.S. 37, 49 (1990); Miller v. Florida,

482 U.S. 423, 430 (1987)

Lb

A number of courts have thus correctly held that a

conviction for the possession of child pornography does

not violate the Ex Post Facto Clause, even if the defen

dant first obtained possession of the images prior to the

effective date of the criminal prohibition. See, e.¢.,

United States v. Paton, 110 F.3d 562, 564-565 (8th Cir

1997); United States v. Bateman, 805 F. Supp. 1053,

1055 (D.N.H. 1992); United States v. Porter, 709 F.

Supp. 770, 774 (E.D. Mich. 1989), aff'd, 895 F.2d 1415

(6th Cir.), cert. denied, 498 U.S. 1013 (1990); ef. United

States v. Trupin, 117 F.3d 678, 686-687 (2d Cir. 1997)

(finding no ex post facto violation where defendant was

prosecuted for possession of a stolen painting he ac

quired in 1980, before the 1986 amendment that made it

a federal crime to “possess” stolen goods that have

crossed state lines), cert. denied, 522 U.S. 1051 (1998);

United States v. Waters, 23 F.8d 29, 36 (2d Cir.) (same

with gun possession), cert. denied, 513 U.S. 867 (1994).

Contrary to petitioner’s suggestion (Pet. 18-15),

United States v. Juvenile Male, 590 F.3d 924 (9th Cir.

2010), petition for cert. pending, No, 09-940 (filed Feb.

9, 2010), is inapposite. In that case, the Ninth Circuit

held that the application of the registration and notifica

tion provisions of the Sex Offender Registration and

Notification Act (SORNA), Pub. L. No. 109-248, Tit. I,

120 Stat. 590, to a juvenile who was adjudicated delin

quent under the Federal Juvenile Delinquency Act, 18

U.S.C. 5031 et seg., before SORNA’s enactment violated

the Ex Post Facto Clause. The defendant’s juvenile ad

judication which triggered the registration requirement

occurred before the enactment of SORNA; the disputed

issue is whether the registration and notification re

quirements constitute “punishment” for ex post facto

purposes. See Pet. at 14-26, Juvenile Male, supra (No

09-940), available at

petitioner's po:

the

2252A(a)(5)(B)

petition for a writ of certior

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Case

Accordingly, there 1

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session of child pornography

he outcome of petitione!

no reason to hold this pet

tion pending a ruling or the Juvenile Mats pevillor

CONCLUSION

he petition for a writ of certiorari should b

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his Court certified a question its |

Supreme Court to determine whether the case was moot, and reser

further proceeding See United Stat Juvenile Male, 130

9018 (2010) The certified question has been bmefed and the i

chneduled for ars ment before the Montan upreme ( irtin.!

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31758. Here, in cont

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amendment) of Sect

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