United States v. James Bausch

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UNITED STATES of America, Appellee, v. James Donald BAUSCH, Appellant.

No. 97-3072MN.

United States Court of Appeals, Eighth Circuit.

Submitted Feb. 10, 1998. Decided March 25, 1998.

141 F.3d 1168 | 1998 WL 130177

charged Barnes with “knowingly and willfully us[ing] and carry[ing] a firearm” during and in relation to the drug offenses. We reject this argument. Proof of any one of the violations charged conjunctively in the indictment will generally sustain a conviction. See

United States v. Vickerage, 921 F.2d 143, 147 (8th Cir.1990). The evidence supported an instruction on the “carry” prong rather than the “use” prong. See

Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995) (holding that a conviction under “use” prong requires active employment of the weapon).

Barnes next argues that the district court erred in Jury Instructions 25 and 28 by defining “carry” as synonymous with “possess.” The district court instructed that “the phrase ‘carried a firearm’ means that the firearm was transported or moved from one location to another and that the firearm was on the person of the defendant, or within his immediate reach.” We find that the instructions fairly and adequately informed the jury. The definition of “carries” submitted by the district court is consistent with our case law. See, e.g.,

United States v. Barry, 98 F.3d 373, 377 (8th Cir.1996) (finding that transporting guns and drugs in the passenger compartment of a car is sufficient), cert. denied,

___ U.S. ___, 117 S.Ct. 1014, 136 L.Ed.2d 891 (1997).

C. Sufficiency of the Evidence

Barnes also asserts that the evidence was insufficient to convict him on the firearms counts and the possession with intent to distribute count. This court will reverse a conviction for insufficient evidence only when we conclude that no reasonable juror could find guilt beyond a reasonable doubt. See

United States v. Behr, 33 F.3d 1033, 1035 (8th Cir.1994). We must review the evidence in the light most favorable to the government and accept all reasonable inferences supporting the verdict. See

id.

We have reviewed the record and find sufficient evidence to support the convictions on the firearms counts. At the time he was arrested, Barnes had both methamphetamine and a Ruger 9mm semi-automatic pistol in the passenger compartment of his car. Teresa Vaughn testified that she observed him carrying a gun. She further testified that he carried a .22 caliber with him and had it on him most of the time. Mesha O‘Neil also testified that she had seen Barnes carry a gun and identified an Intratec 22 as the gun she had seen him carry. Teresa Vaughn also testified that Barnes manufactured methamphetamine almost every day, twenty-four hours a day. There is more than sufficient evidence for the jury to find that Barnes carried a gun during and in relation to a drug trafficking offense.

We similarly find sufficient evidence to support Barnes‘s conviction on the possession with intent to distribute methamphetamine count. The evidence shows that Barnes possessed methamphetamine on July 10, 1996. Although Barnes was arrested in actual possession of only a small amount of methamphetamine, the evidence shows that Barnes led a large-scale conspiracy to manufacture and distribute methamphetamine. See

United States v. Buford, 108 F.3d 151, 154 (8th Cir.1997). He also possessed a triple-beam scale that is used in the weighing and distribution of narcotics. We find the direct and circumstantial evidence more than sufficient to support Barnes‘s conviction on this count.

III. CONCLUSION

We affirm the conviction and sentence of Barnes in all respects.

Virginia G. Villa, Minneapolis, MN, argued, for Appellant.

Before FAGG and MURPHY, Circuit Judges, and SMITH,^* District Judge.

FAGG, Circuit Judge.

Using a camera made in Japan, James Donald Bausch took pictures of two girls, aged fifteen and sixteen, depicting “the girls in nude poses including exposed genitals, sexually suggestive scenes, and scenes simulating oral sex.” (Presentence Report at 1.) The girls were models for Bausch‘s drawings, and Bausch used the photographs in the girls’ absence. After the grandmother of one of the girls called the authorities, Bausch was convicted of possessing three or more photographs of minors engaged in sexually explicit conduct, see 18 U.S.C. § 2252(a)(4)(B) (1994), which includes both actual or simulated oral sex, see id. § 2256(2)(A), and “lascivious exhibition of the genitals or pubic area,” id. § 2256(2)(E). The district court sentenced Bausch to probation. Bausch appeals his conviction, challenging the constitutionality of § 2252(a)(4)(B). We reject Bausch‘s Commerce Clause and First Amendment arguments and affirm.

Bausch first contends Congress exceeded its authority to regulate commerce among the States when it enacted § 2252(a)(4)(B), making intrastate possession of child pornography a federal crime. See U.S. Const. Art. I, § 8, Cl. 3. According to Bausch, Congress lacks power to regulate the possession of sexually explicit photographs of minors when the photographs have not traveled in interstate commerce and are not intended to be placed in commerce. We review the constitutionality of the statute de novo. See

United States v. Crawford, 115 F.3d 1397, 1400 (8th Cir.), cert. denied,

___ U.S. ___, 118 S.Ct. 341, 139 L.Ed.2d 264 (1997).

The Commerce Clause gives Congress power to regulate three types of activity: (1) use of the channels of interstate commerce; (2) instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities; and (3) activities that substantially affect interstate commerce. See

United States v. Lopez, 514 U.S. 549, 558-59, 115 S.Ct. 1624, 1629-30, 131 L.Ed.2d 626 (1995). Section 2252(a)(4)(B) is a proper exercise of Congress‘s commerce power under the third category. See

United States v. Robinson, 137 F.3d 652, 655-56 (1st Cir.1998).

Section 2252(a)(4)(B) prohibits the knowing possession of three or more “books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction [of minors engaged in sexually explicit conduct] ... that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which was produced using materials which have been mailed or so shipped or transported....” The statute contains an express jurisdictional element requiring the transport in interstate or foreign commerce of the visual depictions or the materials used to produce them. See

Robinson, 137 F.3d at 655-56; see also

United States v. Lacy, 119 F.3d 742, 749 (9th Cir.1997);

United States v. Kimbrough, 69 F.3d 723, 729 (5th Cir.1995), cert. denied,

517 U.S. 1157, 116 S.Ct. 1547, 134 L.Ed.2d 650 (1996). Thus, the statute ensures, through a case-by-case inquiry, that each defendant‘s pornography possession affected interstate commerce. See

Robinson, 137 F.3d at 655-56; see also

Lopez, 514 U.S. at 561, 115 S.Ct. at 1630-31. In this case, the jury found Bausch took the photographs using a Japanese camera that had been transported in interstate or foreign commerce. See

Robinson, 137 F.3d at 653-54 (use of camera and film made in another state satisfies Commerce Clause). We conclude § 2252(a)(4)(B) is not beyond Congress‘s commerce power, and thus is not facially unconstitutional. See

id.

Bausch next asserts § 2252(a)(4)(B) violates the First Amendment as applied in his case. Because he possessed the photographs for artistic purposes, Bausch argues the statute should be narrowly construed to exclude him from its reach. See

United States v. Lamb, 945 F.Supp. 441, 449 (N.D.N.Y.1996). Bausch did not raise his First Amendment claim in the district court, so we can reverse his conviction on this ground only on a showing of plain error. See

United States v. White, 890 F.2d 1033, 1034-35 (8th Cir.1989);

United States v. Baucum, 80 F.3d 539, 541 & n. 2 (D.C.Cir.), cert. denied,

___ U.S. ___, 117 S.Ct. 204, 136 L.Ed.2d 139 (1996);

United States v. McKenzie, 99 F.3d 813, 817 (7th Cir.1996).

It is questionable whether Bausch‘s photographs are works with redeeming artistic value. See

United States v. X-Citement Video, Inc., 513 U.S. 64, 84, 115 S.Ct. 464, 474-75, 130 L.Ed.2d 372 (1994) (material covered by § 2252 is not the artistic, but “hard-core pornography“) (Scalia, J., dissenting). Bausch does not assert the photographs themselves are art, and their value as an aid to create artwork is more limited and remote than art itself. In any event, we doubt the First Amendment protects the possession of photographs showing minors engaged in sexually explicit conduct as defined in § 2256 even if the photographs have redeeming artistic value.

We are aware the First Amendment protects non-obscene, sexually explicit material involving adults, see

X-Citement Video, 513 U.S. at 72, 115 S.Ct. at 469, and sexually explicit material involving adults is not obscene if it has serious artistic value, see

Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2614-15, 37 L.Ed.2d 419 (1973). When sexually explicit material depicts minors, however, the First Amendment offers less protection. See

New York v. Ferber, 458 U.S. 747, 756-64, 102 S.Ct. 3348, 3354-58, 73 L.Ed.2d 1113 (1982). The government has greater leeway to regulate child pornography because the government has a “more compelling interest in prosecuting those who promote the sexual exploitation of children.”

Id. at 761, 102 S.Ct. at 3356-57; see

United States v. Knox, 32 F.3d 733, 749-50 (3d Cir.1994). Thus, the Supreme Court has held a statute prohibiting the production and distribution of materials showing minors engaged in “‘actual or simulated sexual intercourse ... or lewd exhibition of the genitals‘” is not facially overbroad. See

Ferber, 458 U.S. at 765, 102 S.Ct. at 3359 (quoting statute). In so holding, the Court said any overbreadth “should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied.”

Id. at 773-74, 102 S.Ct. at 3363. Nevertheless, the Court cast considerable doubt on the viability of an as-applied challenge like the one in this case. The Court observed, “The value of permitting ... photographic reproductions of children engaged in lewd sexual conduct is exceedingly modest, if not de minimis,”

id. at 762, 102 S.Ct. at 3357, and “if it were necessary for ... artistic value, a person over the statutory age who perhaps looked younger could be utilized,”

id. at 763, 102 S.Ct. at 3357. The Court stressed that even if some child pornography has artistic value, the material‘s artistic value is irrelevant to the victimized child. See

id. at 761, 102 S.Ct. at 3356-57. In her concurrence, Justice O‘Connor went further, suggesting “the Constitution might in fact permit [the government] to ban knowing distribution of works depicting minors engaged in explicit sexual conduct, regardless of the social value of the depictions.”

Id. at 774, 102 S.Ct. at 3364. On the other hand, three other Justices said the First Amendment protects artistic, sexually explicit depictions of children. See

id. at 776, 102 S.Ct. at 3364-65 (Brennan and Marshall, JJ., concurring),

778, 102 S.Ct. at 3365-66 (Stephens, J., concurring). And in a more recent case, the Court upheld a statute that prohibited mere possession of material showing a nude minor when the minor‘s nudity is “a lewd exhibition or involves a graphic focus on the genitals,” see

Osborne v. Ohio, 495 U.S. 103, 113, 110 S.Ct. 1691, 1698, 109 L.Ed.2d 98 (1990), but the statute contained an exception for material possessed for legitimate artistic purposes, see

id. at 106, 110 S.Ct. at 1694.

We need not resolve any general issue today. Because it is unclear that application of § 2252(a)(4)(B) to Bausch violated the First Amendment, the district court‘s failure to address the First Amendment issue on its own accord is not plain error.

We thus affirm the district court.

Notes

*

The Honorable Ortrie D. Smith, United States District Judge for the Western District of Missouri, sitting by designation.

Case Details

Case Name: United States v. James Bausch

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Mar 25, 1998

Citation: 140 F.3d 739

Docket Number: 97-3072MN

Court Abbreviation: 8th Cir.