United States v. Clifford Mecham, Jr.
950 F.3d 257
5th Cir.2020Background
- Defendant Clifford Mecham created thousands of "morphed" images and videos by superimposing his grandchildren’s faces (ages 4, 5, 10, 16) onto adult bodies engaged in sexual acts; a technician discovered the files and reported them.
- Mecham admitted creating and at times distributing some videos (including sending one to his oldest granddaughter); charged by grand jury with possession of child pornography and tried in a stipulated bench trial.
- The district court found Mecham guilty and sentenced him to 97 months’ imprisonment after applying a four-level Guidelines enhancement for images portraying sadistic or masochistic conduct.
- On appeal Mecham argued (1) morphed child pornography that does not involve an actual sexual abuse of the pictured child is protected by the First Amendment, and (2) the sadism-or-masochism Guidelines enhancement was improperly applied.
- The Fifth Circuit affirmed the conviction (holding morphed images of identifiable minors fall outside First Amendment protection) but vacated the sentence and remanded because the district court failed to make required findings to support the sadism enhancement.
Issues
| Issue | Mecham's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether morphed child pornography depicting an identifiable minor is categorically unprotected by the First Amendment | Mecham: No; images are protected where no child was actually sexually abused (relying on Stevens and Free Speech Coalition) | Government: Yes; using an identifiable child’s image implicates reputational/emotional harms Ferber protects against | Held: Morphed images depicting identifiable minors fall outside the First Amendment and conviction affirmed |
| Whether exclusion from First Amendment protection requires depiction of contemporaneous sexual abuse | Mecham: Yes; Stevens limits Ferber to images intrinsically tied to criminality | Government: No; Ferber’s harms (reputational/emotional, market effects) apply when an identifiable child’s image is used | Held: Stevens did not displace Ferber’s rationale; exclusion does not require proof of actual abuse |
| Whether the §2G2.2(b)(4)(A) four-level sadism/masochism enhancement applies to morphed images | Mecham: Enhancement improper because no contemporaneous pain to the real child when image created (Nesmith) | Government: Many morphed images here portray sadistic conduct and justify the enhancement | Held: Enhancement requires contemporaneous infliction of pain or depiction objectively showing pain; district court made no necessary findings, so enhancement improperly applied |
| Whether sentencing error was harmless | Mecham: Error affected Guidelines range and sentence; not harmless | Government: District court would have imposed same 97 months regardless | Held: Government failed to prove harmlessness; sentence vacated and remanded for resentencing under correct Guidelines range |
Key Cases Cited
- New York v. Ferber, 458 U.S. 747 (1982) (child pornography may be categorically excluded from First Amendment because of harms to children and market incentives)
- Osborne v. Ohio, 495 U.S. 103 (1990) (possession of child pornography may be criminalized to reduce demand and reputational harm)
- Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) (virtual child pornography that does not use real children is protected speech)
- United States v. Stevens, 559 U.S. 460 (2010) (rejecting categorical exclusion for depictions of animal cruelty; discussed Ferber’s special-case rationale)
- United States v. Anderson, 759 F.3d 891 (8th Cir. 2014) (held morphed image was protected where no depiction of actual abuse; applied Stevens)
- Doe v. Boland, 698 F.3d 877 (6th Cir. 2012) (held morphed images of identifiable minors are unprotected under Ferber rationale)
- United States v. Hotaling, 634 F.3d 725 (2d Cir. 2011) (morphed images using identifiable minors implicate Ferber harms and may be unprotected)
- United States v. Bach, 400 F.3d 622 (8th Cir. 2005) (permitting prosecution where face of minor was superimposed on a minor body image)
- United States v. Nesmith, 866 F.3d 677 (5th Cir. 2017) (sadism enhancement requires contemporaneous pain at image creation to the victim depicted)
- United States v. Lyckman, 235 F.3d 234 (5th Cir. 2000) (child pornography definitions encompass lewd images that may not show physical abuse)
- United States v. Williams, 553 U.S. 285 (2008) (recognized Ferber’s approval of statutory definitions of sexual conduct in child porn laws)