Lawrence E. Lupien v. Harold W. Clarke

1The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-1211
___________
United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Dale Robert Bach, *
*
Defendant - Appellant. *
___________
Submitted: October 18, 2004
Filed: March 14, 2005
___________
Before MURPHY, HEANEY, and BEAM, Circuit Judges.
___________
MURPHY, Circuit Judge.
A jury convicted Dale Robert Bach for possessing visual depictions of a minor
engaged in sexually explicit activity, for transporting such an image, for using a
minor to produce such material, and for the receipt of child pornography, all in
interstate or foreign commerce. The district court1 sentenced Bach to 180 months on
the manufacturing count and 121 months on each of the other three counts, all to run
concurrently. Bach appeals, arguing that there was no probable cause for the search
of his residence, that his convictions are constitutionally infirm, and that the district

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2Initials are used when minors are referenced.
3An individual registered with Yahoo! can create a public profile on its member
directory.
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court erred by applying a mandatory minimum sentence on the manufacturing count.
We affirm.
I.
In October 2000 Sergeant Brook Schaub of the St. Paul Police Department was
contacted by a mother concerned about a document on her family computer. It
contained a partial log of a communication between her minor son (AM) 2 and
someone using the name "dlbch15," asking if AM wanted to see dlbch15 again and
to suggest a place where he could hide something for AM. Dlbch15 added that he
would like to see AM if he were going to drive to St. Paul to deliver it. When the
police questioned AM about this message, he said it had been received in a chat room
on the website www.yahoo.com and that dlbch15 planned to hide Playboy magazines
for him in the bushes near a business on Ford Parkway. AM admitted that he had met
dlbch15 on Ford Parkway, but he denied any sexual contact with him. Police showed
AM a photo of Bach, but he did not identify him as dlbch15.
When Sergeant Schaub accessed the user profile3 for dlbch15 at Yahoo!, he
found it listed a male named Dale, age 26, from Minneapolis. Schaub also discovered
that the nickname dlbch15 was linked to the email address dlbch15@prodigy.com,
and he sent an administrative subpoena to Prodigy seeking subscriber information.
Prodigy identified Dale Bach as the subscriber and listed his address and telephone
number. Further investigation revealed that Bach was a registered sex offender
because of a 1995 state conviction for criminal sexual conduct in the third degree,
involving sex with a fourteen year old boy.

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4An IP is generated when one computer connects with another through the
internet; each IP is unique to a particular computer at the time of the connection and
can be used to identify the source of the connection.
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Schaub sent a letter to Yahoo!, requesting that it retain on its server any
incoming or outgoing email messages associated with the account
dlbch15@yahoo.com. He then obtained a Ramsey County search warrant on January
3, 2001, seeking Yahoo! emails between dlbch15 and possible victims of criminal
sexual conduct, including but not limited to AM. The warrant also sought internet
protocol addresses (IPs)4 linking dlbch15 to possible victims of criminal sexual
conduct or of online enticement for sexual purposes. The warrant was faxed from
Minnesota to Yahoo! in Santa Clara, California.
Five days later Schaub received a package from Yahoo!. Inside was a zip disk
containing all of the emails preserved in the accounts belonging to AM and Bach
(dlbch15@yahoo.com). Yahoo! also sent printed copies of six emails retrieved from
Bach's account. Among them was one dated August 1, 2000, apparently a reply to a
message from dlbch15@yahoo.com about meeting the next day and exchanging
pictures. Other email messages concerned dlbch15's meeting and exchanging
pictures with various individuals.
One email in Bach's account had been received from Fabio Marco in Italy; that
transmission is the basis for Bach's conviction for receiving child pornography.
Marco's email to Bach had an attached photograph which showed a young nude boy
sitting in a tree, grinning, with his pelvis tilted upward, his legs opened wide, and a
full erection. Below the image was the name of AC, a well known child entertainer.
Evidence at trial showed that a photograph of AC's head had been skillfully inserted
onto the photograph of the nude boy so that the resulting image appeared to be a nude
picture of AC posing in the tree.

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In some of his email messages, dlbch15 directed the recipient to visit a
particular site to view a picture of himself. The individual pictured at that site looks
like Bach's driver license photo. The Yahoo! files also revealed that dlbch15 used
other screen names, including "seeknboyz" and one incorporating Bach's telephone
number. The registration material associated with the Yahoo! account listed
Minneapolis as dlbch15's residence and December 27, 1958 as his birthdate, the same
day as Bach's. Since Yahoo! was not Bach's internet service provider, it was unable
to generate and provide IPs linking him to other addresses.
Officers obtained a search warrant to search Bach's residence near the end of
January 2001. The warrant authorized seizure of computer hard drives, storage
devices, and other evidence tending "to show the possession or distribution of child
pornography or the enticement of children online." The warrant was executed on
January 29, and officers seized various items, including Bach's computer, his disks,
and a digital camera. Among the effects seized were seven digital camera images
which Bach had taken in August 2000 of a boy engaging in sexually explicit conduct.
These pictures were of RH, who testified at trial that he was the boy in the photos and
that he had been sixteen at the time they were made. The trial evidence also showed
that one photograph of RH had been sent on the internet from Bach's computer to
another minor with whom he corresponded.
Bach was indicted on August 7, 2001 in eight counts: for possessing visual
depictions produced by using a minor engaged in sexually explicit conduct in
interstate or foreign commerce, in violation of 18 U.S.C. § 2252(a)(4) (count 1); for
transmitting in interstate or foreign commerce a visual depiction produced by using
a minor engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(1)
(count 4); for receiving visual depictions produced by using a minor engaged in
sexually explicit conduct in interstate or foreign commerce, in violation of 18 U.S.C.
§ 2252(a)(2) (count 5); for possessing child pornography in interstate or foreign
commerce, in violation of 18 U.S.C. § 2252A(a)(5) (count 2); for transmitting child

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pornography in interstate or foreign commerce, in violation of 18 U.S.C. §
2252A(a)(1) (count 3); for receiving child pornography in interstate or foreign
commerce, in violation of 18 U.S.C. § 2252A(a)(2) (count 6); and for employing a
minor to produce visual depictions involving sexually explicit conduct in interstate
or foreign commerce, in violation of 18 U.S.C. § 2251(a) (count 7). An eighth count
charged forfeiture under 18 U.S.C. § 2253, but Bach stipulated to that count before
trial.
Bach moved to suppress the evidence obtained by the search warrants. The
district court suppressed the evidence obtained from Yahoo! on the ground that a
police officer had not been present when the warrant was executed, but the court
declined to suppress the evidence from Bach's residence, finding independent
probable cause for that warrant. The government filed an interlocutory appeal from
the order suppressing evidence, and we reversed and remanded. United States v.
Bach, 310 F.3d 1063 (8th Cir. 2002), cert. denied, 538 U.S. 993 (2003).
Before trial Bach moved to dismiss counts 2, 3, and 6, which all charged
offenses under 18 U.S.C. § 2252A. He argued that the same criminal conduct had
been charged in counts 1, 4, and 5 under 18 U.S.C. § 2252. After the district court
granted the motion, the government moved for reconsideration. The court decided
on reconsideration that the government could proceed to trial under § 2252A for the
charge in count 6 rather than being limited to the § 2252 charge in count 5, ruling that
that prosecution was not barred by the Supreme Court's decision in Ashcroft v. Free
Speech Coalition, 535 U.S. 234 (2002).
The indictment was redacted as a result of the pretrial motions, and the case
was presented to the jury on four counts. Count 1 charged Bach with possession of
visual depictions whose production involved the use of a minor engaged in sexually
explicit conduct in interstate or foreign commerce, in violation of 18 U.S.C. §
2252(a)(4). Count 4 charged Bach with transmission in interstate or foreign

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5Bach also argues that the Ramsey County court did not have jurisdiction to
issue a warrant authorizing a search of his Yahoo! account in California. He raised
this argument in the district court about a month before trial, but the court declined
to reach it because it was raised at such a late date. See Fed. R. Crim. P. 12(e)
(objection waived if not raised by deadline set by the court). Bach has not shown that
this was an abuse of discretion. See United States v. Casares-Cardenas, 14 F.3d 1283,
1286 (8th Cir. 1994) (district court has discretion to refuse to consider untimely
pretrial motions where no good cause is offered for late submission).
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commerce of a visual depiction whose production involved the use of a minor
engaged in sexually explicit conduct (one picture of RH), in violation of 18 U.S.C.
§ 2252(a)(1). Count 6 charged Bach with receiving child pornography in interstate
or foreign commerce (the picture with AC's face), in violation of 18 U.S.C. §
2252A(a)(2). Count 7 charged Bach with employing a minor to produce visual
depictions of the minor involved in sexually explicit conduct in interstate or foreign
commerce (pictures of RH), in violation of 18 U.S.C. § 2251(a). Bach was convicted
on all four counts, and the district court imposed concurrent sentences of 121 months
for counts 1, 4, and 6 and 180 months for count 7.
II.
On appeal, Bach argues that there was not probable cause to search his
residence, that the images he took of RH were protected under Lawrence v. Texas,
539 U.S. 558 (2003), that his prosecution for receipt of child pornography under 18
U.S.C. § 2252A was unconstitutional under Ashcroft v. Free Speech Coalition, 535
U.S. 234 (2002), and that the district court erred in imposing a 15 year mandatory
minimum sentence for his conviction for manufacturing visual depictions of a minor
involved in sexually explicit conduct. The government responds that the district court
did not err in its rulings on these issues. 5

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We review factual findings of the district court for clear error and findings of
probable cause de novo. Ornelas v. United States, 517 U.S. 690, 699 (1996). We also
apply de novo review to constitutional challenges to a criminal statute, United States
v. Koons, 300 F.3d 985, 990 (8th Cir. 2002), and to questions of federal law
involving statutory interpretation. Johnston v. Paul Revere Life Ins. Co., 241 F.3d
623, 628 (8th Cir. 2001).
A.
Under the Fourth Amendment a search warrant can only be issued with
probable cause. Probable cause exists if under the totality of the circumstances,
"there is a fair probability that contraband or evidence of a crime will be found" in the
place to be searched. Illinois v. Gates, 462 U.S. 213, 238 (1983). When a warrant is
not supported by probable cause, any evidence obtained in a search is generally
inadmissible. Mapp v. Ohio, 367 U.S. 643, 655-57 (1961).
Bach argues that there was no probable cause to search for a computer in his
residence because he could have accessed the internet from other locations. He
contends that a valid warrant for searching his home computer could not have been
obtained without cross references between his telephone records and IPs provided by
his service provider. There was no showing he says of any link between the alleged
criminal activity and a computer located at his residence.
Sergeant Quinn-Robinson prepared an affidavit in support of the warrant to
search Bach's apartment, for items such as computer systems and data on hard drives
or removable media. Her affidavit incorporated information from the earlier affidavit
of Sergeant Schaub in support of the Yahoo! warrant. She recounted that Schaub had
specialized training and experience in the investigation of internet crimes and in the
search and seizure of computer systems, that he was aware that computers and the
internet had frequently replaced file cabinets as storage places for evidence, and that

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it was not uncommon for individuals to retain text records of chats with children for
later review and fantasy. Sergeant Quinn-Robinson stated that she was also informed
that dlbch15 had corresponded over the internet and had met in person with the minor
AM, that the user profile of dlbch15's Yahoo! account listed a male named Dale, aged
26, from Minneapolis, Minnesota, and that the subscriber information for the Prodigy
account dlbch15@prodigy.com listed Dale Bach, Bach's address, and his telephone
number. Her affidavit also indicated that Bach had previously been convicted of
criminal sexual conduct for having sex with a fourteen year old male.
In addition, the affidavit included information obtained from Yahoo! under the
warrant faxed to the company. Registration material for dlbch15's Yahoo! account
showed Minneapolis as the user's city of residence and listed Bach's date of birth.
The account material listed an additional screen name that incorporated Bach's home
telephone number. Sergeant Quinn-Robinson's affidavit also reported information
about email messages produced from Bach's Yahoo! account, including the picture
with AC's face and communications about exchanging pictures.
Probable cause is not a rigidly defined concept, for it depends on the totality
of the circumstances and the specific facts in a given situation. Gates, 462 U.S. at
232. Even without IPs, it was reasonable to believe on the basis of the other
information in the affidavit that Bach had a computer at his residence where he
engaged in chats and received or stored images. We conclude that the information
contained in the application to search Bach's residence, for a computer and data
contained on the computer and storage devices, was sufficient to create probable
cause that evidence of criminal activity would be found there.
B.
Digital photos which Bach took at his apartment of sixteen year old RH are
connected to counts 1, 4, and 7. These counts charged Bach with possessing visual

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depictions which had been produced by using a minor engaged in sexually explicit
conduct in violation of 18 U.S.C. § 2252(a)(4) (count 1), transmitting such a visual
depiction in violation of 18 U.S.C. § 2252(a)(1) (count 4), and using a minor to
produce visual depictions of the minor engaged in sexually explicit conduct in
violation of § 2251(a) (count 7). Some of these visual depictions show RH
masturbating and Bach performing oral sex on him.
Bach argues that these photos portray noncriminal consensual sexual conduct
because RH was sixteen and the age of consent under Minnesota and federal law is
sixteen. Minn. Stat. § 609.342 et seq.; 18 U.S.C. § 2243. He contends that the images
are protected by the liberty and privacy components of the due process clause of the
Fifth Amendment under Lawrence v. Texas, 539 U.S. 558 (2003). The government
responds that the relevant definition of a minor for these offenses is found in 18
U.S.C. § 2256, which defines a minor as any person under the age of eighteen years.
It asserts that Congress had a rational basis for criminalizing pornography involving
this age group and that Bach's activities were not protected under the First or Fifth
Amendments, pointing out that Lawrence did not involve a minor or the production
and distribution of child pornography.
Bach's constitutional arguments relating to his prosecution for possession of
pictures of minors engaging in sexually explicit conduct are founded on Lawrence.
In that case the Supreme Court recognized a protected liberty interest, under the due
process clause of the Fourteenth Amendment, for private and consensual sexual
conduct between same sex adults. As the Court specifically pointed out, Lawrence
did not involve minors or others "who might be injured or coerced," 539 U.S. at 578,
and the conduct protected there was very different from that involved in Bach's
prosecution. Here, a forty one year old defendant took pictures of a sixteen year old
boy masturbating and engaging in oral sex, kept the pictures, and then transmitted one
of them over the internet. RH testified that he had at first refused many requests by

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Bach to pose nude and finally posed without pants after Bach offered him money to
do it.
The liberty interest the Court recognized in Lawrence was for adults engaging
in consensual sexual relations in private, but in this case Bach engaged in sex with
a minor and pressured him to pose nude for photographs, one of which was sent over
the internet. We find no support in Lawrence to prevent Bach's prosecution under §§
2251 and 2252. Bach's privacy argument also fails, for his activities related to child
pornography are not protected by a constitutional right of privacy. See United States
v. Vincent, 167 F.3d 428, 431 (8th Cir. 1999). As we pointed out in Vincent, "[t]he
Constitution offers less protection when sexually explicit material depicts minors
rather than adults." Id. Bach has not shown that the conduct charged in counts 1, 4,
and 7 was constitutionally protected.
The First Amendment does not prevent prosecution for child pornography,
New York v. Ferber, 458 U.S. 747 (1982), and Congress may regulate pornography
involving all minors under the age of eighteen if it has a rational basis for doing so.
See United States v. Freeman, 808 F.2d 1290, 1293 (8th Cir. 1987). Congress
changed the definition of minor in the child pornography laws in 1984 to apply to
anyone under eighteen. It found that the previous ceiling of sixteen had hampered
enforcement of child pornography laws. With that ceiling there was sometimes
confusion about whether a subject was a minor since children enter puberty at
differing ages. H.R. Rep. No. 98-536, at 7-8 (1983), reprinted in 1994 U.S.C.C.A.N.
492, 498-99; Freeman, 808 F.2d at 1293. We conclude that the congressional choice
to regulate child pornography by defining minor as an individual under eighteen is
rationally related to the government's legitimate interest in enforcing child
pornography laws, id., and that Bach's convictions for possessing, transmitting, and
manufacturing any visual depiction produced using a minor engaged in sexually
explicit conduct should be affirmed.

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C.
Bach contends that his conviction on count 6 for receipt of child pornography
under §2252A(a)(2), based on the picture of a nude boy with AC's face, violates the
First Amendment. He relies on Ashcroft v. Free Speech Coalition, 535 U.S. 234
(2002), to argue that his conviction was unconstitutional, contending that the
government did not prove that a real minor was used to produce the image. The
government responds that count 6 involves the image of an identifiable minor and this
prosecution is not subject to the constitutional infirmity identified in Free Speech
Coalition.
The district court instructed the jury that it could find Bach guilty of violating
§ 2252A(a)(2) if it found that he knowingly received a visual depiction that "involves
the use of a minor engaging in sexually explicit conduct" or "has been created,
adapted, or modified to appear that an identifiable minor is engaging in sexually
explicit conduct." This instruction incorporated § 2256(8)(A), the definition of child
pornography before the passage of the Child Pornography Prevention Act of 1996
(CPPA), 18 U.S.C. § 2251 et seq., as well as the definition in § 2256(8)(C) added by
the CPPA. The judge also instructed the jury that the term "sexually explicit conduct"
includes the lascivious exhibition of the genitals or pubic area. 18 U.S.C. § 2256(2).
Bach argues that his conviction is invalid because the definition of child
pornography in § 2256(8)(C) violates the First Amendment. He contends that the
definition covers images that only appear to depict an identifiable minor and that the
definitions found unconstitutional in Free Speech Coalition used similar language.
He argues virtual pornography was protected by the Court in Free Speech Coalition
because it did not involve the abuse of a real minor and there was no evidence that
a real minor was used to produce the image with AC's head. In support he cites

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6The Reedy court stated incorrectly in dicta that Free Speech Coalition found
all definitions in §2256(8)(B)-(D) overbroad, and it described the definition in §
2256(8)(C) without reference to the identifiable minor provision.
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United States v. Reedy, 304 F.3d 358 (5th Cir. 2002), a case in which the Fifth Circuit
remanded convictions under § 2252 and § 2252A for resentencing under § 2252.6
The government responds that morphed images such as the one in count 6
involve real children with consequential mental harm. It asserts that a morphed image
may victimize several children at once because it may contain an underlying picture
of real children being abused and exploited, as well as the face of an identifiable child
whose own mental health and reputation may suffer. The government also argues that
if the definition of child pornography in § 2256(8)(C) were held unconstitutional,
pornographers could avoid prosecution by simply pasting the heads of young stars
over the faces of their victimized real children. In support it cites United States v.
Ellyson, 326 F.3d 522 (4th Cir. 2003), a case in which the Fourth Circuit overturned
a conviction under § 2252A because it had been submitted with an instruction using
the definition of child pornography in § 2256(8)(B), and also noted that Free Speech
Coalition recognized that "unlike virtual images, morphed images 'implicate the
interests of real children.'" Ellyson, 326 F.3d at 529 n.2.
Section 2252A was enacted as part of the CPPA to target any person who
"knowingly receives or distributes ... any child pornography that has been mailed, or
shipped or transported in interstate or foreign commerce by any means, including by
computer." 18 U.S.C. § 2252A(a)(2)(A). In Free Speech Coalition, the Supreme
Court declared that the CPPA definitions of child pornography in § 2256(8)(B) and
(D) were unconstitutional. These definitions were held to be overly broad and to
prohibit speech protected by the First Amendment. Bach contends that § 2256(8)(C),
the definition of child pornography at issue in his conviction under § 2252A(a)(2),
is similarly unconstitutional.

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The definition sections found infirm in Free Speech Coalition were broad
enough to include apparent or suggested sexual conduct of a minor. Section
2256(8)(B) applied to any visual depiction that "is, or appears to be, of a minor
engaging in sexually explicit conduct," and § 2256(8)(D) covered the depiction of
sexually explicit conduct "advertised, promoted, presented, described, or distributed"
in a manner to suggest that the material shows a minor engaging in such conduct.
Before the CPPA was enacted with its new definitions, child pornography had been
defined simply as any visual depiction produced by using a minor engaged in sexually
explicit conduct, 18 U.S.C. § 2252, and that definition was retained in § 2256(8)(A)
of the new legislation.
Section 2256(8)(C), the definition applied in Bach's prosecution for receiving
the image with AC's face, covers any visual depiction that "has been created, adapted,
or modified to appear that an identifiable minor is engaging in sexually explicit
conduct." The definition in subsection (C) was intended by Congress to prevent
harm to minors resulting from the use of "identifiable images ... in pornographic
depictions, even where the identifiable minor is not directly involved in sexually
explicit activities." S. Rep. 104-358, at 8 (1996). In contrast to the definitions of
child pornography in subsections (B) and (D), the definition in subsection (C) targets
harm to an identifiable minor.
In New York v. Ferber, 458 U.S. 747, 756-58 (1982), the Supreme Court
recognized a compelling government interest in preventing the sexual exploitation
and abuse of children. The distribution of child pornography is "intrinsically related"
to the sexual abuse of children because it creates a "permanent record of the children's
participation and the harm to the child is exacerbated by [its] circulation," and the
production of pornography requiring the sexual exploitation of children cannot be
"effectively controlled" unless that network is closed. Id. at 759. In Free Speech
Coalition the Court again focused on these harms, stating that "[l]ike a defamatory

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statement, each new publication ... would cause new injury to the child's reputation
and emotional well-being." 535 U.S. at 249.
Free Speech Coalition noted that the definition of child pornography in §
2256(8)(B) "covers materials beyond the categories" recognized in its earlier
decisions in Ferber and Miller v. California, 413 U.S. 15 (1973)." 535 U.S. at 256.
As examples, it suggested that § 2256(8)(B) could potentially be applied to
Hollywood movies filmed without any child actors, a Renaissance painting depicting
a scene from classic mythology, and a computer generated image if the image
"appears to be" a minor engaging in sexually explicit conduct. Id. at 241. The Court
stated that such images would not harm or involve any actual children in the
production process. Id. Unlike the speech in Ferber which was itself "the record of
sexual abuse," some speech covered by subsection (B) would record no crime and
create no victims by its production since the virtual pornography covered under the
section would not be "'intrinsically related' to the sexual abuse of children." Id. at 250.
Subsection (B) went beyond the concerns in Ferber by prohibiting images that do not
"depict an actual child," id. at 239, and the definition could therefore not withstand
facial attack under the First Amendment. Id. at 256. The Court held that § 2256(8)(D)
was also similarly overbroad because sexually explicit materials advertised as child
pornography could be prohibited under it, even if no children were actually pictured.
Id. at 257-58.
Because the definitions in subsections (B) and (D) could be applied to
situations where no actual child could be harmed by the production or distribution of
the image, the Court struck them down in the declaratory judgment action in Free
Speech Coalition. Not only did the Supreme Court not extend its analysis to the

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definition in §2256(8)(C), it explicitly stated that it was not addressing the
constitutionality of subsection (C). It differentiated the definition in (C), noting that
it
prohibits a more common and lower tech means of creating visual
images, known as computer morphing. Rather than creating original
images, pornographers can alter innocent pictures of real children so that
the children appear to be engaged in sexual activity. Although morphed
images may fall within the definition of virtual child pornography, they
implicate the interests of real children and are in that sense closer to the
images in Ferber.
Id. at 242.
Unlike the virtual pornography protected by the Supreme Court in Free Speech
Coalition, the picture with AC's face implicates the interests of a real child and does
record a crime. The picture depicts a young nude boy who is grinning and sitting in
a tree in a lascivious pose with a full erection, his legs spread, and his pelvis tilted
upward. The jury could find from looking at the picture that it is an image of an
identifiable minor, and that the interests of a real child were implicated by being
posed in such a way. This is not the typical morphing case in which an innocent
picture of a child has been altered to appear that the child is engaging in sexually
explicit conduct, for the lasciviously posed body is that of a child. See S. Rep. No.
108-002, at n.2 (2003) ("[T]he morphing provision is explicitly aimed at the creation
of a sexually explicit image using an innocent image of a child.").
Evidence in the record indicates that a photograph of the head of a well known
juvenile, AC, was skillfully inserted onto the body of the nude boy so that the
resulting depiction appears to be a picture of AC engaging in sexually explicit
conduct with a knowing grin. Although there is no contention that the nude body
actually is that of AC or that he was involved in the production of the image, a lasting
record has been created of AC, an identifiable minor child, seemingly engaged in

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sexually explicit activity. He is thus victimized every time the picture is displayed.
Unlike the virtual pornography or the pornography using youthful looking adults
which could be prosecuted under subsections (B) and (D), as discussed in Free
Speech Coalition, this image created an identifiable child victim of sexual
exploitation. In Free Speech Coalition the Supreme Court continued to recognize the
government's compelling interest in protecting a minor's physical and psychological
well being, see 535 U.S. at 249-50, building on its decision in Ferber, pointing out the
harm arising from pornography which is "intrinsically related" to the sexual abuse of
children. 458 U.S. at 759.
Although there may well be instances in which the application of § 2256(8)(C)
violates the First Amendment, this is not such a case. The interests of real children
are implicated in the image received by Bach showing a boy with the identifiable face
of AC in a lascivious pose. This image involves the type of harm which can
constitutionally be prosecuted under Free Speech Coalition and Ferber.
D.
Bach's final argument relates to his sentence on count 7. The district court
sentenced him to 15 years on his conviction on that count under 18 U.S.C. § 2251(a),
for employing a minor to produce a visual depiction of the minor involved in sexually
explicit conduct. At the time of Bach's offense there was a mandatory minimum
punishment of 15 years for a § 2251(a) conviction, if the defendant had been
previously convicted under state law for an offense "relating to the sexual
exploitation of children." 18 U.S.C. § 2251(d) (2001). Although Congress amended
the statute in 2003 to increase the mandatory minimum punishment to 25 years by
adding § 2251(e), Bach was appropriately sentenced under the lower mandatory term
rather than the one in effect at the time of sentencing.

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Bach contends that the district court erred in imposing the mandatory minimum
sentence, arguing that his prior state conviction did not relate to the sexual
exploitation of children but to child abuse, and so his conviction did not fit within the
federal statute's triggering definition. He asserts that his 1995 Minnesota conviction
for third degree criminal sexual conduct did not involve the production of child
pornography and that due process and the rule of lenity require that the term "sexual
exploitation of children" be strictly construed against the government and in his
favor.
Bach argues that the legislative history of the Protection of Children Against
Sexual Exploitation Act of 1977 under which § 2251 was initially enacted, supports
his interpretation in that its purpose was to curtail the production and widespread
trafficking of child pornography. See S. Rep. No. 95-438 (1977). His conviction for
criminal sexual conduct had nothing to do with this activity he asserts. Congress was
aware of the distinction between "sexual exploitation of children" and "child abuse"
he says, because it distinguished the two terms in other federal statutes. He mentions
as an example 18 U.S.C. § 3509, which defines exploitation as "child pornography
or child prostitution" and child abuse as "the physical or mental injury, sexual abuse
or exploitation, or negligent treatment of a child." He points out that the title of
Chapter 110, 18 U.S.C. §§ 2251-2260, is "Sexual Exploitation and Other Abuse of
Children" while § 2251, which criminalizes the manufacture of child pornography,
is entitled "Sexual exploitation of children."
The government argues that Bach's argument is misplaced, pointing out that
this court specifically held in United States v. Smith, 367 F.3d 748, 751 (8th Cir.
2004), that the term "[sexual exploitation of children] unambiguously refers to any
criminal sexual conduct with a child." The Minnesota statute on criminal sexual
conduct in the third degree covers sexual penetration of a child between 13 and 16.
Minn. Stat. § 609.344 subd. 1(b). The government asserts that this Minnesota
statutory definition of criminal sexual conduct covers the exact type of conduct

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Congress had in mind when it created the § 2251(d) enhancement, citing United
States v. Galo, 239 F.3d 572, 581-82 (3d Cir. 2001) (in applying the § 2251(d)
enhancement, court should look to statutory definition of prior offense rather than to
the conduct giving rise to the conviction).
Bach responds that even though we held in Smith that "sexual exploitation of
children" includes any criminal sexual conduct with a child, we should now apply the
rule of lenity because Smith did not involve a due process challenge to the
interpretation of § 2251(d). We reject this contention. The defendant in Smith had
also argued that "sexual exploitation of children" is limited to pornography or
criminal sexual conduct captured in visual depictions, but the argument was rejected.
Although the federal statute does not define the term sexual exploitation of children,
it covers "any criminal sexual conduct with a child [which by its very nature] takes
advantage of, or exploits, a child sexually." Smith, 367 F.3d at 751. We also
observed that the federal crimes listed in § 2251(d) as triggering the mandatory
minimum penalty were not limited to offenses involving pornography or visual
depictions. Id. In Smith we held that the term "sexual exploitation of children"
unambiguously refers to any criminal sexual conduct with a child, and the rule of
lenity does not apply where a statute is unambiguous. Moskal v. United States, 498
U.S. 103, 107-08 (1990). We conclude that the district court did not err by imposing
a mandatory minimum sentence under § 2251(d) based on Bach's state court
conviction for engaging in criminal sexual conduct with a child.
Bach also argues that the mandatory minimum sentence he received under §
2251(d) is unconstitutional under Blakely v. Washington, 124 S. Ct. 2531 (2004). We
disagree because Bach's sentence was within the twenty year maximum sentence
authorized by § 2251(d). A prior felony conviction is a sentencing factor and not a
separate offense and does not need to be presented to a jury. Almendarez-Torres v.
United States, 523 U.S. 224 (1998). That rule was maintained in Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000), where the Court excluded the fact of a prior

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7Bach did not identify any other Blakely issue in his briefs or at oral argument
but retains the option of a petition for rehearing.
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conviction from those issues which must be presented to a jury. United States v.
Booker specifically reaffirmed that holding: "Any fact (other than a prior conviction)
which is necessary to support a sentence exceeding the maximum authorized by the
facts established by a plea of guilty or a jury verdict must be admitted by the defendant
or proved to a jury beyond a reasonable doubt." 125 S. Ct. 738, 756 (2005). We
conclude that application of the mandatory minimum sentence based on Bach's prior
state conviction was appropriate and not unconstitutional under Booker, Blakely,
Apprendi, or Almendarez-Torres.7
III.
In sum, probable cause existed for the warrant to search Bach's residence for a
computer and related evidence. His constitutional and statutory challenges to his
convictions under 18 U.S.C. §§ 2251(a) and 2252(a)(1) and (a)(4), are without merit,
and § 2252A(a)(2) was not unconstitutionally applied in his prosecution for receiving
child pornography in interstate or foreign commerce. Finally, we conclude that the
district court did not err in imposing a 15 year mandatory minimum sentence on the
manufacturing count. We therefore affirm the judgment of the district court.
HEANEY, Circuit Judge, concurring.
I concur in the majority’s well-reasoned opinion. I write separately only with
respect to Bach’s conviction for receiving child pornography in violation of 18 U.S.C.
§ 2252A(a)(2). Bach contends that this conviction is constitutionally infirm because
it rests on a definition of child pornography, contained in 18 U.S.C. § 2256(8)(C),
which he claims violates the First Amendment. Had Bach challenged this statute on
the ground that it was facially overbroad, as did the respondents in Ashcroft v. Free
Speech Coalition, 535 U.S. 234, 243 (2002), he may well have prevailed on his claim.

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In my view, the reasoning behind the Supreme Court’s decision in Free Speech
Coalition, which held subsections (B) and (D) of § 2256(8) unconstitutionally
overbroad, applies with equal force to subsection (C). The record reveals, however,
that Bach only challenged the statute as it was applied to him. See United States v.
Stuckey, 255 F.3d 528, 530-31 (8th Cir. 2001) (noting the court of appeals generally
does not consider issues or arguments that have not been raised or articulated on
appeal). I agree with the majority that the statute survives scrutiny as applied, and
therefore concur.
______________________________

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