United States of America v. Jason Nicoson

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐2557
U NITED STATES OF A MERICA ,
Plaintiff‐Appellee,
v.
J ASON NICOSON,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 12 CR 50046‐1 — Frederick J. Kapala, Judge.
____________________
A RGUED J UNE 9, 2015 — D ECIDED J ULY 16, 2015
____________________
Before P OSNER , KANNE , and SYKES , Circuit Judges.
P OSNER , Circuit Judge. The defendant is sexually attracted
to children, specifically girls 5 to 12 years old. So far as we
know he does not molest girls, but he solicits, obtains, views,
and makes available for distribution videos and images of
these very young girls in lewd poses. He pleaded guilty to
two counts of transportation of child pornography, in viola‐
tion of 18 U.S.C. § 2252A(a)(1), which subjects anyone who
“knowingly mails, or transports or ships using any means or

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2 No. 14‐2557
facility of interstate or foreign commerce or in or affecting
interstate or foreign commerce by any means, including by
computer, any child pornography” to a maximum sentence
of 20 years (40 for certain recidivists). Id., § 2252A(b)(1). Each
count was for transporting child pornography over the In‐
ternet. The judge imposed consecutive sentences on the de‐
fendant—240 months (20 years) on the first count and 55
months (about four and a half years) on the second, for a to‐
tal of 295 months (almost twenty‐five years).
The presentence report had calculated the defendant’s
guidelines sentencing range to be 151 to 188 months on the
basis of U.S.S.G. § 2G2.2. But the district judge decided to
base the defendant’s sentence on another guideline, U.S.S.G.
§ 2G2.1, designed for violators not of 18 U.S.C. § 2252A(a)(1)
but of 18 U.S.C. § 2251(a), which subjects anyone who induc‐
es a minor to engage in “sexually explicit conduct for the
purpose of producing any visual depiction of such conduct
or for the purpose of transmitting a live visual depiction of
such conduct” to a maximum prison sentence of 30 years (or
50 years or even life, depending on the defendant’s record of
recidivism). Id., § 2251(e). In applying guideline section
2G2.1, despite its connection to a statute that the defendant
was not convicted of violating, the judge relied on section
2G2.2(c)(1). That section, applicable to violators of 18 U.S.C.
§ 2252A(a)(1), provides that if the defendant’s offense “in‐
volved … seeking by notice or advertisement, a minor to en‐
gage in sexually explicit conduct for the purpose of produc‐
ing a visual depiction of such conduct or for the purpose of
transmitting a live visual depiction of such conduct, apply
§ 2G2.1.” Section 2251(a) prescribes a maximum sentence, as
we said, of 30 years. Yet the judge, noting that the guidelines
range applicable to the defendant under guideline section

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No. 14‐2557 3
2G2.1 was 324 to 405 months, sentenced him as we said to
295 months—almost 25 years—even though the maximum
sentence for violating section 2252A(a)(1) is only 20 years.
But remember that the 295‐month sentence was actually two
sentences, each for a different count of violating section
2252A(a)(1), and the judge imposed the two sentences con‐
secutively, which the defendant does not challenge.
For guideline section 2G2.1 to apply, as explained in sec‐
tion 2G2.2(c)(1), the defendant had to have sought “by notice
or advertisement, a minor to engage in sexually explicit con‐
duct,” and had to have done that “for the purpose of pro‐
ducing a visual depiction of such conduct or … transmitting
a live visual depiction” of it. To understand the visual depic‐
tion, one needs to understand the relevant technology. A
webcam[era] is “a video camera that feeds or streams its im‐
age in real time to or through a computer to computer net‐
work. When ‘captured’ by the computer, the video stream
may be saved, viewed or sent on to other networks via sys‐
tems such as the internet, and email as an attachment.”
“Webcam,” Wikipedia, https://en.wikipedia.org/wiki/
Webcam (visited July 9, 2015). The webcam can either be
built into the user’s computer, in which case it generally fac‐
es the operator of the computer and takes a video of him that
can be transmitted via the computer to another person’s
computer, or it can be detachable from but connected to the
computer by a wire called a USB cable. The field of vision of
the external webcam is thus not limited to what the operator
of the computer can see. But unlike a conventional camera, a
webcam does not store any of the images it photographs or
records. Instead it conveys them through the cable to the
computer, where they are stored on the computer’s hard

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4 No. 14‐2557
drive and can be accessed through a folder on the computer
screen.
A number of videos of child pornography were found on
the defendant’s two computers, but to be within the scope of
guideline section 2G2.1 he had to have enticed or sought to
entice a minor to pose for a video or camera shot while the
minor was engaged in sexually explicit conduct. He could
thus have had in his computer any number of obscene vide‐
os without having had anything to do with their production,
in which event the guideline section would not be applica‐
ble, as he would not have solicited the underage performer.
But the government argued and the judge agreed that the
defendant’s webcam had recorded (and transmitted to his
computer, where they were found) three still images of a
“live” obscene performance by one of the young girls—what
is called a “live feed,” “live” meaning that the performance
shown on the computer screen and recorded in part by the
webcam occurred as it was being filmed. The inference that
the images were recorded by a webcam was based on the
low quality of the recordings and the presence of screen re‐
flection.
The significance of this evidence was that the defendant
was more likely to have solicited a live performance for
transmission to him than a performance that would be rec‐
orded and the video of it received by him at some subse‐
quent time; for if the recordings weren’t live, he wouldn’t
have to settle for low‐quality images. There was evidence
that in online chat rooms of persons sharing his sexual inter‐
ests the defendant had often expressed a desire for videos of
live sexual performance by young girls, and from this the

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No. 14‐2557 5
government and the judge inferred that he had solicited the
girl to perform in the video that he photographed.
An abiding puzzle is why he was content to take still im‐
ages of pornographic videos displayed on his computer
screen; his webcam could take videos, which could have
been transmitted to his computer and thus be available to
him to watch whenever he wanted. But it’s enough that
there is a basis for a reasonable inference that he solicited the
live performance that he photographed with his webcam. He
unquestionably sought child‐pornography videos from his
chat‐room cronies, and that seeking could be expected to in‐
duce one or more of the cronies to arrange for a live perfor‐
mance and beam it to him, in which event he would be the
principal in the solicitation of the performing girl, and the
crony his agent. His possession of the recording (in the form
of the still photos) of a live performance was evidence that
he had sought “by notice or advertisement, a minor to en‐
gage in sexually explicit conduct for the purpose of produc‐
ing a visual depiction of such conduct.”
It’s true that the government’s attempt to prove, from
blurs in the still photos that the webcam took and transmit‐
ted to the defendant’s computer, that the computer screen
was indeed exhibiting a live feed was weak. But it is difficult
to see why he would have been taking still photos of a video
that he had downloaded if it was not a live feed and there‐
fore a video that he could watch on his computer at any
time. And it is undeniable from transcripts of his conversa‐
tions in the chat rooms that he indeed sought minors to en‐
gage in sexually explicit conduct for the purpose of produc‐
ing the live type of visual depiction that gratified his sexual
tastes. That made him subject to the section 2G2.1 guideline

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6 No. 14‐2557
regardless of whether his webcam recorded a live perfor‐
mance exhibited on his computer screen.
A FFIRMED

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