*1 443 оp- III. CONCLUSION aggregate combine completed and the Therefore, erating.” 962. “while Id. at reasons, we foregoing For reverse and thus prohibit 7 is to primary thrust of pro- court for further remand to the district monopolistic anti-competitive and to forestall ceedings. id., acquisitions and completed acquisitions,” may amount to “post-acquisition conduct Trade Comm’n 7.” Federal
violation 592, 598, Corp., Foods 380 U.S.
Consolidated (1965). 1220, An 85 S.Ct. 7, of section ex-
“acquisition,” purposes
tends, challenged, be until and therefore can v. ITT deal is undone. See United States Co., Baking 420 U.S. Continental Americа, Appellee, UNITED STATES of (1975). 926, 43 L.Ed.2d
S.Ct.
Supreme
decision in du Pont
Court’s
vitality
of a section 7
aptly illustrates
VIG,
Appellant.
completed.
acquisition is
See du
after
claim
Pont,
586,
872.
du
S.Ct.
U.S.
America, Appellee,
United States
Pont,
7 violation was established
a section
though it was not manifest at
time
even
years
acquisition
thirty
and over
of initial
Vig, Appellant.
passed
acquisition
since the actual
had
98-1982, 98-2003.
Nos.
analogized
Supreme
Court
sec-
stock.
which,
smoldering,
although
a fire
tion
Appeals,
United States Court
anti-competitive activity аt
may
into
blaze
Eighth Circuit.
any
thereby give rise
a claim.
time and
Pont,
du
id. at
872. Under
S.Ct.
Submitted Oct.
1998.
may
any
Clayton
“at or
Act violation
occur
Feb.
1999.
Decided
depending
acquisition,
upon
time after the
particular
circumstances of the
case.”
ITT,
872;
597, 77
at
Id. at
S.Ct.
see
U.S.
(finding that a cause of
action arises even at time
acquisition there was realistic threat or creation of mo-
restraint commerce
nopoly). “holding as law is clear that well
Case obtaining potentially violative of assets” is ITT, 926.
section 7.5 U.S. limitation to eliminate the
It is an artificial
possibility of a section claim because
merger completed and all stock
merging company turned and extin continuing potential
guished. The “fire” of activity
illegal so described du Pont cannot
easily extinguished. The district court dismissing complaint for failure
erred a claim. state acquisition competition, merely holding strain but The district court found that actually threatens or lessens It of stock assets does not violate section 7. concluded that stock Pont, competition. See du 353 U.S. anti-competitive use. there also be some must requirement to re- S.Ct. 872. There is no that one intend *2 appeal, Vig one raises issue
On First, three. both claim raises legally insufficient to that the evidence was support their convictions under 18 U.S.C. they argue Specifically, *3 erroneously interpreted the the district court in “other matter” 2252(a)(4)(B) to include files. (1) addition, Vig Donovan claims that: prove failеd to children; depictions were actual of the visual denying in erred his and the district court post-trial for either a new trial or an motion evidentiary hearing allegations on based juror reasons discussed misconduct. For the below, we affirm.
I. BACKGROUND briefly background facts state the reserving detailed procedural history, more portions opinion of this for the statements specific issues raised which we discuss the February the defendants. On about personal com- Vig Tom his home took Doctor, repair puter computer PC center, Falls, South Dakota. service Sioux Peterman, Atty., Rap- Gregg S. Asst. U.S. manager Roby, Vig informed James service (Karen Schreier, SD, argued E. on City, id Doctor, was not PC brief), Appellee. for something working properly because downloaded off Internet. had been Yankton, Hosmer, SD, argued, Larry F. Roby came computer, repairing While Vig. Appellant for Tom engaged computer images of children across Falls, SD, ar- Sehlimgen, John A. Sioux activity. He im- of sexual in various forms gued, Appellant Vig. Donovan for what he mediately management of informed contacted the Management then had seen. FAGG, BEAM, and MORRIS Before office Falls States Marshals Sioux ARNOLD, Judges. SHEPPARD Circuit turn, which, the FBI. contacted Miller, later, days an FBI few Matthew A BEAM, Judge. Circuit Vig concerning Special Agent with Tom met pornography on his appeal allegation of child Vig their convic- Tom and Donovan meeting, Vig trial,1 During Tom tions, jury computer. following violation of for computer was Miller that the his admitted to of the Protection pic- had and downloaded Exploitation and that he seen Against Act of Sexual Children curiosity. Mil- amended, pro- of nude children out of tures subsequently as requested Vig’s consent and received Tom knowing possession three or ler hibits the films, computer. The books, periodicals, to seize and examine magazines, more following day, containing any Miller examined tapes, video or other matter the existence of PC and confirmed depiction engaging sexu- Doctor of minor engaged in sexual images of children ally several explicit conduct. Dakota, Piersol, presiding. L. Honorаble Lawrence Judge for the District South States District computer’s activity January on and D hard On C found the guilty. Subsequently, February defendants phone had a Donovan drives. On Miller filed motion for a new trial on based Vig, during with Tom conversation newly juror discovered evidence of miscon- which, Vig explained course to Miller hearings, duct. At sentencing the dis- special program used a he access trict ruling denying court announced its groups news search various Internet acquittal, defendants’ motions as well and that it was while he was in these nеws Vig’s motion for a new trial.3 Each groups that he had seen and downloaded thirty-seven defendant was sentenced to pictures of nude children onto the “C” drive. imprisonment months’ fine. $1000 son, spoke Vig’s Miller also with Tom Dono- van Vig, who told Miller that he too accessed II. DISCUSSION groups frequently news where had he seen *4 A. Matter” “Other children, pictures of nude some of whom appeared years to be between five and six guilty In order to be found of violat Miller, According disputed by ing 2252(a)(4)(B), old. to § but 18 U.S.C. an individual trial, possess books, Vig Vig knowingly must “3 Donovan Donovan ad- or more magazines, films, periodicals, tapes, video or had pictures mitted he downloaded such containing a depiction other matter” visual of why but that he did not know he did so. engaging sexually explicit in minor cond On Tom October and Donovan appeal uct.4 The on central issue the is Vig charged were each with one count of appropriate meaning of the knowingly possessing comput- three or more matter” Specifi as it is used in the statute. image er files violation of 18 U.S.C. cally, whethеr the defendants can be convict 2252(a)(4)(B).2 A trial At followed. ed under section when the visu government’s case, the close of the defen- depictions al were saved three or more judgment dants made a motion for of ac- computer image files on that were located (1) quittal claiming computer only that: single files were computer hard drive.5 meaning not “other matter” within of the Defendants contend that “other matter” 2252(a)(4)(B), therefore, section and the evi- physical refers the medium that contains legally wаs dence insufficient convict depictions, the visual in this the com- them; had not met Therefore, puter they argue hard drive. proving its of burden of the presented trial, the evidence which showed depictions visual real children. The they possessed computer numerous im- ruling argument court reserved on the first age files, drive, but on one hard was until opportunity thoroughly it had an possessing insufficient to convict them of questions rejected consider the involved. It three govern- or more “other matter.” The argument. hand, second аrgues, ment on other that “other charged Vig I Count of the shipped indictment that Tom have transported, been mailed or so or knowingly possessed computer image files. by by any including computer, means if— charged Count II of the indictment (i) Donovan producing depiction of such visual in- Vig knowingly possessed 13 such files. engaging sexually volves the use of minor conduct; explicit (ii) subsequently 3. The district court filed a Memo- conduct; depiction such visual of such Opinion explaining, randum and Order in further (b) punished provided shall be in subsection detаil, computer image its decision that con- files of section. meaning stituted "other matter" within the of 2252(a)(4)(B). 18 U.S.C. 2252(a)(4)(B). computer 5.The used portion 4. The relevant defendants con- statute states: drives, tained two hard the "C” "D." All Anyperson who— books, knowingly possesses maga- files listed in Count I of the 3 or more zines, films, periodicals, tapes, against indictment video were taken other from any depiction matter which contain computer visual "C” of computer drive and all the mailed, shipped has been ported or has been or trans- image against files II listed Count commerce, foreign in interstate or Vig were found the "D” drive. produced using which was materials which meaning ordinary, image commonsense files. to the refers Johnson, 56 Thus, that each United States v. the evidence showed words. See because Cir.1995). ordinary The more than three such possessed F.3d defendant convic- files, support express their meaning presumed it was sufficient words is denying the de- the statute. congressional under purpose. tions See Minnesota the district acquittal, Heckler, motions for fendants’ government’s interpre- agreed with the court Therefore, expressed legisla clearly absent image
tation,
file
held that
language
contrary,
intention to the
tive
matter” within
mean-
constitutes “other
regarded as conclusive. See id.
ing
Defendants con-
possession
“3
prohibits the
The statute
was based on
that the court’s decision
tend
films,
books, magazines, periodicals,
or more
interpretation of the statute.
an erroneous
tapes, or
matter which contain
video
other
review the distriсt court’s deni
We
any
depiction.”
indi-
visual
judgment
acquittal
based
al
a motion
simply
some-
cates that “other matter”
by viewing
sufficiency
upon
evidence
which,
minimum,
capable
thing
at a
must be
light
most favorable
depiction.6
com-
containing a visual
Smith, 104
States v.
the verdict. See United
one,
all contained
and some
puter
(8th Cir.1997).
give
one,
depiction.7
more
The Sev-
than
*5
in
of all reasonable
the benefit
interpretation
recent
enth Circuit’s
logically
could
be drawn from
ferences that
v.
phrase “other matter”
United States
uphold
must
the evidence. See id. We
(7th Cir.1998),
Hall,
in-
B. exceptional Unless circumstances dic persuaded by argu We are not otherwise, tate when the terms of a statute ment. We do think that the Committee’s unambiguous, judicial remarks, are inquiry go plain is com against which meaning plete. See re Partnership, years In Erickson 856 and made statute six after the 1068, 2252(a)(4)(B), passage “We ask not of section are entitled means; Congress only what the weight. we ask what Supreme much Court has the statute means.” Hepp, v. subsequent stated that “the views of a Con 350, see, Cir.1981); 656 F.2d e.g., gress form inferring a hazardous basis for States, Northern States Power Co. v. the intent of earlier one.” United States meration, general objects by words preceding specific are construed to enumerated only objects embrace § similar in to those nature words. Id. 47.17. Depictions 313, 326, Price, C. of “Real Children” 361 U.S. S.Ct. (1960). ‘[l]egislative ob “[S]ueh L.Ed.2d 334 Vig also clаims that the dis part are no ... sense servations denying erred in his motion for trict court ” history Mayer .’ Oscar & Co. legislative govern judgment acquittal because the Evans, U.S. present ment did not sufficient evidence (1979). Instead, it is the intent L.Ed.2d 609 showing that of the visual de Congress that enacted the section of the pictions required were real minors as under Moreover, Supreme id. controls. See 2252(a)(4)(B)© the statute. See 18 U.S.C. it has observed that “even when would Court (ii).10 reviewing sufficiency & useful, legislative subsequent otherwise evidence, light in the we consider it mоst rarely in history will override reasonable jury accept verdict and all favorable to gleaned terpretation a statute that can be from the reasonable inferences legislative pri- history from its support jury which verdict. See tend Prod. or to its enactment.” Consumer Safe Broyles, United States Inc., Sylvania, ty Comm’n v. GTE 447 U.S. (8th Cir.1994). argument Vig’s specific 102, 118 13, 100 n. S.Ct. technology images that modern can create so a “mere (noting also that statement being to a human that it report ... similar would be as to what the Com conferencе just they by decipher an earlier statute meant difficult to what are mittee believes obviously weighty”). Technology, speculates, looking less at them. he
might computer-generated images create 2252(a)(4)(B) exactly went into Section first look like real children. He con No. 1990. See Pub.L. effect on November cludes that because the evidence the 101-647, 323(a)(2), 104 Stat. 4818 government presented to show that the im (1990). history legislative Examination of its ages images were of real children were the insight date as to prior to this rеveals themselves,11 government failed to meet Congress precise scope intended the what proof. disagree. its burden of “other matter” be. See U.S.C.C.A.N. were viewed Stat.) (104 seq. anything, 6472 et If position independent was in to draw its own indicates an addition real children conclusion as whether Congress’s expansion of enforcement authori depicted. (finding sufficient See id. now, in ty under because addition *7 subjects video were in fact evidence that of sale, distribution, transportation, the to when, among age eighteеn the of other under pornography was possession mere of child videotape by jury things, was viewed which short, criminalized. In we think that the age as of could its conclusions draw own history legislative nothing contains that Furthermore, subjects). jury the aided was justify departing our from stat would the by Kaplan, in Dr. an its observations Rich Thus, ordinary meaning.9 plain, ute’s based professor pediatrics spe- of with a associate plain meaning the on the of Kaplan cialty in maltreatment. Dr. child by legislative the histo bolstered absence of subjects of the from testified that least one ry computer contrary, to the we hold that image images of or found each encompassed files are within the charged against Vig, except files thirteen meaning of “other matter” 2252(a)(4)(B). one, was a minor. section, purposes
9.Finally, “minor” is de- defendants contend that the rule of For of this age eighteen "any person as under the of fined lenity prosecution their under bars 2256(1). years.” However, 18 U.S.C. because we have con grievous ambiguity uncertainty that cluded no trial, govеrnment presented 11. At evidence of involved, we in the statute find the rule of exists computer images files the through contained in the lenity inapplicable to be in this case. See United appear a paper copies what would Elk, (8th Long States v. 805 F.2d Cir. were to view files screen if one 1986). using print a the contents using printer. a nevertheless, Vig, argues although that may Dr. grant The district court a Kaplan may subjects newly have testified that the motion trial for new based on discov minors, testify they required were he failed that ered evidence “if in the interest justice.” computer-generat- were real handling minors not Fed.R.Crim.P. 33. In al note, however, legations juror misconduct, images. ed We de- district court any way fense failed has broad discretion its to cross-examine or decision testimony will be affirmed rebut absent abuse of Kaplan. from Dr. discre elicited Williams, tion. See United States v. Vig produced 77 F.3d expert evidence at trial to (8th 1098, 1100 Cir.1996). 606(b) gener Rule computer gener- show were ally prohibits juror impeaching from his or they ated or appeared other than what be. her exception juror verdict with the that a essence, Vig’s images may claim that the may testify to extraneous im information or purely not have been of real children spec- proper jury influence in the room. See Unit govern- ulative and we do not think that the Krall, ed States 835 F.2d 715-16 ment, part of its affirmative was Cir.1987). “Extrinsic or extraneous influ required negate merely unsupport- what is publicity ences include received and dis speculation. Nolan, ed jury room, cussed in the matters considered (1st Cir.1987) (stating 818 F.2d by jury evidence, not but admitted into speculation uncorroborated that some and communications or other contact be technology produce por- undefined exists to jurors persons.” tween and outside nographic pictures without use of real chil- Bassler, States v. rejecting dren is not sufficient basis lower evidence). court’s determination to admit beyond Vig’s motion, Proof district court denied reasonable con- doubt does cluding require that the comments produce did not constitute consideration of “extraneous” every rules information way which out conceivable juror’s merely but related to the pictures own internal could using have been made without processes. agree. worst, mental At real children. See id. We think that juror’s comments a misapprehension reflect government presented sufficient evidence presented. of the evidence Vig, neverthe- reasonably from could infer that less, argues misapprehension evi- depictions of the visual dence alone is sufficient for finding engaging sexually actuаl minors explicit extraneous influence. accept We cannot this conduct. proposition. Examination the method and juror manner in which a construes evidence D. Juror Misconduct presented trial, during plunge would very post-verdict court into the kind ana- Finally, Vig challenges juror’s thought processes tomization district court’s denial of his motion for a new 606(b). is barred Rule Accordingly we or, alternative, trial evidentiary for an *8 find no abuse of the district court’s discretion hearing newly based on discovered evidence dеnying Vig a new trial juror alleged misconduct. The misconduct evidentiary hearing. juror’s centers around a post- comments in a juror trial radio interview. The found Dono III. CONCLUSION claim, Vig’s van pornography child above, For the reasons discussed we affirm unknowingly along was downloaded with the the uphold district court and the defendants’ pornography, other was inconsistent with the convictions. only that one the files contained images pornography, of child not inter ARNOLD, MORRIS SHEPPARD Circuit spersed anything with else. asserts that Judge, dissenting. no such factual evidenсe was admitted at trial juror’s and therefore the consideration of I respectfully dissent from the court’s such facts must judgment be considered an extraneous I because think that United States influence on the Cir.1997), verdict. Lacy, v. F.3d cert. — objects by print- tangible into denied, -, be made can S.Ct. U.S. just (1998), printing from like tear- correctly ing, or is decided. was L.Ed.2d in- a ing pages from book? These kinds for the reasons that if that Even only speculation today, quiries give can rise adopted a construction mentions court intent, guess- congressional I problematic, believe about that is of the statute alterna- lenity requires about which of two reasonable rule a result differ- work right one. constructions is the that the court reaches tive ent from the one this case. out, moreover, points court As the itself “other to me that It seems legislative history relevant “reveals no plausibly to a con- itself as matter” lends Congress pre insight what intended the into as it that favors the defendants struction scope of ‘other matter’ to be.” Once we cise “ The view opposite construction. does to thing can ‘every have seized from which aid ” Circuit, and of the court to- of the Seventh and “can make ‘no more than a be derived’ ” “anything day, matter” means that “other intended,’ Congress guess as what Reno containing depiction” is a reasonable 50, 65, 115 Koray, S.Ct. v. 515 U.S. Hall, one, see United States (1995), quoting, respectively, L.Ed.2d 46 (7th Cir.1998), but the view of Ninth States, v. United 508 U.S. Smith matter” includes (1993) (inter that “other Circuit 2050, 124 L.Ed.2d 138 S.Ct. objects like enumerated in the physical those omitted), quotation and Ladner v. nal marks equally reasonable. statute Statеs, 358 U.S. Lacy, (1958), duty our relevant adopt the statute construction maintain parties to the case Both statutory that favors defendants. absurdity. leads interpretation other’s and, grievously ambiguous, after arguments unhelpful because nei-
These are looking parties arguments interpretation can avoid absurd results. ther legislative history, can make we still “no points interpreting out court guess” as to of two rea more than a rather than to mean hard drive accomplish interpretations would sonable someone who file would be absurd because Congress’s lenity rule of intention. The containing pro- possessed three books one I would thus apply, therefore should image each be violation scribed would judgment of trial court. reverse the statute, possessed while someone who containing of such im- drive hundreds hard
ages interpre- would not be. But court’s to an absurd result: Under
tation leads holding, possessed someone who court’s containing proscribed one
three books
each be violation of would computer file possessed a while someone who America, Appellee, UNITED STATES containing such would hundreds of interpretation is in fact not There be. incongruities: prevent can evident CRAYCRAFT, Lloyd Appellant. Michael person pos- who question is no There No. 97-3473. im- thousand-page filled with book sessed ages pornography of child would Appeals, United States Court of Congress statute. ensured violation *9 Eighth Circuit. the statute such anomalies when it wrote it did. Dec. 1998. Submitted arguments parties ad- The other Feb. Decided meaning of on the “other matter” vance equally unresolvable battle create drive like a book or
analogies. Is a hard computer files
library? significant Is it