United States of America v.  Ronald David Ellyson

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4600 
RONALD DAVID ELLYSON,
Defendant-Appellant. 
Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, Senior District Judge.
(CR-99-50-F)
Argued: October 30, 2002
Decided: March 17, 2003
Before LUTTIG, MICHAEL, and TRAXLER, Circuit Judges.
Vacated and remanded by published opinion. Judge Traxler wrote the
opinion, in which Judge Luttig and Judge Michael joined.
COUNSEL
ARGUED: Stephen Clayton Gordon, Assistant Federal Public
Defender, Raleigh, North Carolina, for Appellant. Dennis M. Duffy,
Assistant United States Attorney, Raleigh, North Carolina, for Appel-
lee. ON BRIEF: Thomas P. McNamara, Federal Public Defender,
Raleigh, North Carolina, for Appellant. John Stuart Bruce, United
States Attorney, Anne M. Hayes, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.

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OPINION
TRAXLER, Circuit Judge:
Ronald Ellyson was convicted of possessing child pornography in
violation of 18 U.S.C.A. § 2252A(a)(5)(B), (b)(2) (West 2000). Elly-
son argues that law enforcement officers obtained the illicit porno-
graphic material at issue through a constitutionally defective search
of his residence. Ellyson also contends that the district court’s jury
instructions failed to comply with Ashcroft v. Free Speech Coalition,
122 S. Ct. 1389 (2002), thereby permitting the jury to convict him on
unconstitutional grounds. Because the court’s instructions were erro-
neous under Free Speech Coalition, we must set aside the verdict and
remand the matter for further proceedings.
I.
On September 11, 1998, officers from the Boiling Springs Lake
Police Department in North Carolina received information that two
larceny suspects were guests at a trailer owned by Ellyson. Officers
knocked and then entered the trailer in hopes of arresting Nathan
Rudolphsky, one of the suspects. According to Chief White, he asked
Ellyson if the police could search the trailer for Rudolphsky and Elly-
son agreed. Police found Rudolphsky asleep in a back bedroom with
Angela Burr, a woman who was living in Ellyson’s trailer at the time.
During the time that officers were in the trailer, they observed a
marijuana bong in plain view in the living room. When asked if the
trailer contained any drugs or more drug paraphernalia, Ellyson
responded that it did not. According to the officers, Ellyson did not
object to a search of the trailer for additional illegal drugs or items
associated with such drugs. During a search of Ellyson’s bedroom,
officers located a binder notebook containing images of children
engaged in sexual activity. Ellyson was arrested for possessing child
pornography. At the request of police, Ellyson then directed officers
to a closet where he kept a second notebook containing similar
images. Officers also seized Ellyson’s computer, as well as various
videotapes, magazines, photographs, letters, and newspaper clippings
belonging to Ellyson.
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After Ellyson’s arrest, Angela Burr continued to live in the trailer.
For nearly two weeks after the September 11 search, Burr remained
in contact with officers from the Boiling Springs Lake Police Depart-
ment. Burr testified that various officers told her that if law enforce-
ment officers searched the trailer again and "there was anything
[illegal] found in the house . . . [she] would possibly [be charged
with] aiding and ab[etting]," J.A. 116, and if she "came across [any-
thing illegal] that it would be" in her best "interest to turn it in or else
[she] could be liable for it." J.A. 176.
On September 18, 1998, Burr visited Ellyson in jail. According to
Burr, the purpose for her visit was to ask permission to continue liv-
ing in the trailer while Ellyson was incarcerated. During their conver-
sation, Ellyson inquired whether police officers had returned to
conduct another search. When Burr responded that they had not done
so, Ellyson told her that he had some computer diskettes that he
wanted Burr to dispose of as soon as she returned to the trailer. Burr
testified that she visited Ellyson of her own accord and that she was
never asked to meet Ellyson or elicit any information from him on
behalf of the police. The following day, Burr located a box containing
several diskettes, letters, and more photographs; she also found a few
computer diskettes in a night stand. On September 20, 1998, in light
of what she had been told about any such material remaining in the
trailer, Burr contacted police and turned over the materials.
Ellyson successfully moved to suppress the items obtained by
police in their initial search on September 11. After an extensive evi-
dentiary hearing, the district court granted Ellyson’s motion as to the
evidence obtained during the initial search. The court concluded that
the officers’ "opening of the door of Ellyson’s trailer constituted a
warrantless, nonconsensual entry into the residence" in violation of
Ellyson’s Fourth Amendment rights; that "[e]xigent circumstances did
not justify the illegal entry into the home"; and "that Ellyson’s con-
sent to search subsequent to the illegal entry" did not purge "the taint
of the original illegality." J.A. 614.
Ellyson also moved to suppress the evidence that Burr subse-
quently located and then turned over to authorities on September 20.
There was evidence in the record before the district court that cast
doubt on whether Burr was acting independently when she learned of
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and recovered the evidence that she eventually gave to police officers
and that ultimately led to Ellyson’s conviction. The district court,
however, rejected Ellyson’s argument that Burr was acting as an
agent of the government and thus conducted an impermissible search
when she located the computer disks and other items that she relin-
quished to the police. The court made a factual finding "that the
police did not participate directly in obtaining the September 20 evi-
dence," J.A. 626, and that "Burr’s decision to turn over the items she
found was motivated primarily by her desire to protect herself," J.A.
624. Thus, the court concluded that Ellyson failed to carry his burden
of showing that Burr was acting as an agent of the government.
The case went to trial based on the evidence Burr gave police on
September 20, 1998. This evidence included multiple images of an
actual, identifiable minor engaged in explicit sexual conduct; how-
ever, there were many other images introduced for which there was
no testimony that the minors depicted were actual children. The dis-
trict court instructed the jury that the government was required to
prove that Ellyson "knowingly possessed at least one visual depiction
of an image . . . he knew to be child pornography." J.A. 1568. In
accordance with the Child Pornography Prevention Act of 1996
("CPPA"), see 18 U.S.C.A. § 2256(8) (West 2000), the district court
instructed the jury that "child pornography" was defined as "any
visual depiction, including any photograph, film, video, picture, or . . .
computer-generated image . . . of sexually explicit conduct, where the
production of such visual depiction involves the use of a minor . . .
engaging in sexually explicit conduct; or such visual depiction is, or
appears to be, of a minor engaging in sexually explicit conduct." J.A.
1570 (emphasis added). The court further instructed the jury that the
government was required to prove that the images possessed by Elly-
son "either had been mailed or shipped or transported in interstate or
foreign commerce by any means, including computer." J.A. 1572.
The jury returned a guilty verdict. At sentencing, the district court
imposed a 78-month term of imprisonment, departing upward on the
basis that Ellyson’s criminal history category did not adequately
reflect the likelihood that Ellyson would continue to commit crimes
involving sexually deviant conduct with minors.
Ellyson filed this appeal, arguing that the district court erroneously
concluded that law enforcement agents were not acting through Burr
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to conduct a search for additional evidence of child pornography and
that the items turned over to police on September 20 should have been
suppressed. Initially, Ellyson contended that the government failed to
establish an interstate commerce nexus to his possession of the
images involving actual minors. Ellyson claimed that his possession
of the remaining images, which did not definitively involve the use
of actual children, could not be constitutionally prohibited. Although
Ellyson acknowledged that his argument was contrary to circuit pre-
cedent at the time he filed his appeal, see United States v. Mento, 231
F.3d 912 (4th Cir. 2000), vacated, 535 U.S. 1014 (2002), he urged us
to follow the view of the Ninth Circuit in Free Speech Coalition v.
Reno, 198 F.3d 1083, 1097 (9th Cir. 1999), which the Supreme Court
affirmed, that the definition of "child pornography" under
§ 2256(8)(B) was unconstitutional to the extent that it proscribed pos-
session of an image that "appears to be[] of a minor engaging in sexu-
ally explicit conduct." 18 U.S.C.A. § 2256(8)(B). Because the
Supreme Court had already granted certiorari to address this issue, we
held this appeal in abeyance pending the Court’s decision in Ashcroft
v. Free Speech Coalition, 122 S. Ct. 1389 (2002).
II.
First, we consider Ellyson’s argument that the district court was in
error when it concluded that no agency relationship existed between
Burr and the government for Fourth Amendment purposes and denied
his motion to suppress the evidence given to police by Burr. We
review the factual findings underlying the district court’s denial of a
pretrial motion to suppress for clear error, and the court’s legal deter-
minations de novo. See Ornelas v. United States, 517 U.S. 690, 699
(1996); United States v. Seidman, 156 F.3d 542, 547 (4th Cir. 1998).
We review the evidence in the light most favorable to the govern-
ment. See Seidman, 156 F.3d at 547.
Because the protection afforded by the Fourth Amendment is
aimed "exclusively at state action . . . evidence secured by private
searches, even if illegal, need not be excluded from a criminal trial."
United States v. Kinney, 953 F.2d 863, 865 (4th Cir. 1992). The
Fourth Amendment applies to a search conducted by a private citizen
only if that individual is "acting as an agent of the Government or
with the participation or knowledge of any governmental official."
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United States v. Jacobsen, 466 U.S. 109, 113 (1984) (internal quota-
tion marks omitted); see Coolidge v. New Hampshire, 403 U.S. 443,
487 (1971) (explaining that a private search may be converted into
state action only if the private actor is "regarded as having acted as
an ‘instrument’ or agent of the state"). The burden of proving that a
private party acted as an agent or instrument of the government is on
the defendant. See United States v. Shahid, 117 F.3d 322, 325 (7th
Cir. 1997). Whether an agency relationship exists is a fact-intensive
inquiry that is guided by common law agency principles. See United
States v. Koenig, 856 F.2d 843, 847 n.1 (7th Cir. 1988). One highly
pertinent consideration is "whether the government knew of and
acquiesced in the intrusive conduct and whether the private party’s
purpose for conducting the search was to assist law enforcement
efforts or to further her own ends." United States v. Feffer, 831 F.2d
734, 739 (7th Cir. 1987); see Kinney, 953 F.2d at 865 (affirming the
district court’s conclusion that no agency relationship existed where
the private individual "acted on her own initiative, without suggestion
from the police officers").
The district court made several critical factual findings on this
issue. The court found that Burr visited Ellyson in jail on September
18 "because she wanted to discuss with Ellyson whether she could
continue to reside in his trailer," that Ellyson "requested Burr to locate
and dispose of some computer disks that remained in the trailer," and
that "Burr made no effort to look for evidence in the trailer until after
her meeting with Ellyson." J.A. 616. The district court further found
that "Burr’s actions were not motivated by a desire to aid the police
in building their case" but by a desire to preclude "law enforcement
from holding her responsible for any items subsequently discovered
in the trailer." J.A. 617. Thus, the district court found that Burr had
a "legitimate independent motivation" for performing the search. J.A.
624. The court also found, based on the testimony of Burr and various
officers, that the police never asked Burr to visit Ellyson in jail, that
they were not "aware that Ellyson had requested Burr to dispose of
the disks," and that they did not prompt Burr to search further after
she had turned over the evidence on September 20. J.A. 623. Based
on these findings of fact — that Burr had a "legitimate independent
motivation" for performing the search and the police had not partici-
pated or acquiesced in the search — the district court concluded that
Burr had not been acting as an agent or instrument of the state.
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Ellyson concedes that the district court’s findings of fact are not
clearly erroneous, and, having reviewed the record, we perceive no
clear error in any event. Ellyson argues simply that the district court
drew the wrong legal conclusion from its findings. Ellyson suggests
that the evidence in the record compels the conclusion that Burr was
an instrument of the police, and he points out that the district court
even acknowledged that the record contained "several pieces of evi-
dence" supporting his agency theory. J.A. 620.1 However, once it has
been established that the court did not clearly err in its findings that
the police neither directed nor acquiesced in Burr’s independently-
motivated activities, our inquiry is at an end even though the evidence
might have allowed a different conclusion. See Feffer, 831 F.2d at
739 (agency relationship turns on the government’s knowledge and
the private actor’s motivation). For Ellyson to argue that the record
contains substantial conflicting evidence that would have supported
the finding that Burr was not acting independently is simply another
way of suggesting the district court reached the wrong factual conclu-
sion. As Ellyson himself observed, the district court acknowledged
that there was conflicting evidence but simply decided to credit the
testimony of Burr and the police officers on this issue. Accordingly,
we reject this argument and affirm the denial of Ellyson’s motion to
suppress this evidence.
1For example, there was evidence that, at or near the time that Burr
turned over the evidence, Police Chief White met with Burr and drafted
(or assisted the drafting of) a purported lease agreement governing Burr’s
rights with respect to the trailer. There was evidence that, following Elly-
son’s arrest, Burr was issued a "citation" for felonious harboring of a
fugitive and then was told, at or around the time that she turned over the
evidence, that the charges were dismissed because they had been irregu-
larly issued. And, there was evidence that Burr filed a complaint with the
North Carolina State Bureau of Investigation alleging that the Chief
White during this time induced Burr to exchange sexual favors for
money with a friend of Chief White. Burr acknowledged these allega-
tions at the suppression hearing, but denied the alleged conduct had any
bearing on her decision to gather and turn over the disks.
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III.
A.
Next, Ellyson contends that, in light of Free Speech Coalition, the
district court’s jury instructions permitted the jury to convict him on
constitutionally infirm grounds, requiring the verdict to be set aside.
Ellyson was convicted of knowingly possessing computer disks that
contained "image[s] of child pornography." 18 U.S.C.A.
§ 2252A(a)(5)(B). Before Congress passed the CPPA, the definition
of "child pornography" applied to visual depictions of actual minors
"engaging in sexually explicit conduct." 18 U.S.C.A. § 2256(8)(A);
see Free Speech Coalition, 122 S. Ct. at 1397. The CPPA expanded
the definition of "child pornography" to include a "visual depiction
[that] is, or appears to be, of a minor engaging in sexually explicit
conduct," 18 U.S.C.A. § 2256(8)(B), or a "visual depiction [that] is
advertised, promoted, presented, described, or distributed in such a
manner that conveys the impression that the material is or contains a
visual depiction of a minor engaging in sexually explicit conduct," 18
U.S.C.A. § 2256(8)(D). Accordingly, the expanded definition of child
pornography encompassed images that did not involve actual minors
in the production, including "‘virtual child pornography’" — images
that were completely computer-generated. Free Speech Coalition, 122
S. Ct. at 1397.2
In concluding that the CPPA’s prohibition against the possession
of virtual child pornography was overly broad under the First Amend-
ment, the Court focused on two obscenity/pornography decisions. In
Miller v. California, 413 U.S. 15, 24 (1973), the Court instructed that
the First Amendment prohibits government regulation of sexually ori-
ented material unless it is obscene, which the Court defined as mate-
2Under § 2256(8)(C), the definition of child pornography also includes
images produced by "morphing," a "lower tech means of creating virtual
images" whereby a "pornographer can alter innocent pictures of real chil-
dren so that the children appear to be engaged in sexual activity." Free
Speech Coalition, 122 S. Ct. at 1397. Although not presented with the
question of whether such morphed images can be constitutionally
banned, the Court noted that, unlike virtual images, morphed images
"implicate the interests of real children." Id.
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rial that, "taken as a whole, appeal[s] to the prurient interest in sex,
. . . portray[s] sexual conduct in a patently offensive way, and . . .
do[es] not have serious literary, artistic, political, or scientific value."
The CPPA’s ban on virtual child pornography, however, "extends to
images that appear to depict a minor engaging in sexually explicit
activity without regard to the Miller requirements." Free Speech
Coalition, 122 S. Ct. at 1399. Although New York v. Ferber, 458 U.S.
747 (1982), allows the prohibition of child pornography that is not
necessarily obscene under Miller, the Court explained that Ferber’s
holding was based "on the production of the work, not its content."
Free Speech Coalition, 122 S. Ct. at 1401. Ferber permits a state to
ban the sale or distribution of child pornography that is "‘intrinsically
related’ to the sexual abuse of children" in that such material is "a per-
manent record of a child’s abuse, [and] the continued circulation itself
would harm the child." Id. The Court in Free Speech Coalition con-
cluded that "[i]n contrast to the speech in Ferber, speech that itself
is the record of sexual abuse," the CPPA’s ban of material that "ap-
pears to be" child pornography "prohibits speech that records no
crime and creates no victims by its production." Id. at 1402. Because
§ 2256(8)(B) "covers materials beyond the categories recognized in
Ferber and Miller," the Court held that the provision is overbroad
under the First Amendment. Id. at 1405.3
The district court in this case instructed the jury that it could find
Ellyson guilty of violating § 2252A if it concluded that he had pos-
sessed material containing a visual depiction that "appears to be[] of
a minor engaging in sexually explicit conduct." J.A. 1570. The
instruction simply tracked the language of § 2256(8)(B) and therefore
amounted to an erroneous instruction to the extent that it permitted
the guilty verdict to rest on the unconstitutional "appears to be" lan-
guage in the statute. See United States v. Richardson, 304 F.3d 1061,
3For the same reasons, Free Speech Coalition also struck down
§ 2256(8)(D), which prohibits the possession of images that are "adver-
tised, promoted, presented, described, or distributed in such a manner
that conveys the impression that the material is or contains a visual
depiction of a minor engaging in sexually explicit conduct." See 122 S.
Ct. at 1405-06. Although the district court included this language in his
jury charge, the government has never contended that § 2256(8)(D)
applied to Ellyson, and it is not an issue on appeal.
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1063 (11th Cir. 2002) (finding jury instructions plainly erroneous
because the district court included "appears to be" language in the
definition of child pornography so that the government did not have
to prove that the images were of "actual children, as opposed to ‘vir-
tual’ children"), cert. denied, 123 S. Ct. 930 (2003). Of course, the
district court did not have the benefit of Free Speech Coalition at the
time it issued its instructions to the jury. Indeed, at the time of trial,
the court’s instructions were consistent with circuit precedent reject-
ing a constitutional challenge to the "appears to be" language of the
CPPA. See Mento, 231 F.3d at 921.
B.
We next consider the appropriate standard of review. We conclude
our review is for harmless error. Despite Mento, it appears that
defense counsel had the prescience to preserve an objection to a guilty
verdict based on a visual depiction that did not make use of an actual
child. During the charge conference, defense counsel asked the court
to remove language that included the phrase "appeared to be" because
the government was required to prove that Ellyson was "required to
know that they are minors." J.A. 1516. Although this particular objec-
tion may have been inexact, we think it sufficiently reflects the legal
theory underlying Ellyson’s earlier Rule 29 motion for acquittal. In
arguing for a judgment of acquittal, Ellyson contended that the "pros-
ecution did not prove by any credible evidence . . . that there were
victims under the age of 18." J.A. 1332. When the government
responded that it was only required to prove the images involved
"someone who looks like a minor," J.A. 1335, Ellyson clarified that
he was "not talking about age . . . [but] actual people." J.A. 1336.
Ellyson contended that, according to the government’s own witnesses,
"images can be entirely generated without the use of individuals in
any way, shape or form," and that "there is no evidence . . . that [a
large number of] the images are not entirely made up and do not fall
within the statute," J.A. 1332, because "it has to be an actual [minor]."
J.A. 1336. In view of the record as a whole, we conclude that Elly-
son’s attorney preserved the record on this issue. Accordingly, our
review is for harmless error rather than plain error. See Fed. R. Crim.
P. 52(a).
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C.
Under Yates v. United States, 354 U.S. 298, 312 (1957), "a verdict
[must] be set aside in cases where [it] is [legally] supportable on one
ground, but not on another, and it is impossible to tell which ground
the jury selected." See Griffin v. United States, 502 U.S. 46, 52
(1991). "[R]eversal is required when a case is submitted to a jury on
two or more alternate theories, one of which is legally (as opposed to
factually) inadequate, the jury returns a general verdict, and it is
impossible to discern the basis on which the jury actually rested its
verdict." United States v. Hastings, 134 F.3d 235, 242 (4th Cir. 1998).
The district court’s instructions permitted the jury to convict Ellyson
on essentially alternate grounds — that Ellyson possessed images
involving the use of an actual minor engaged in explicit sexual con-
duct or that Ellyson possessed images involving what "appears to be
. . . a minor engaging in sexually explicit conduct." J.A. 1570. There-
fore, the jury was presented with one alternative that was constitution-
ally viable and one that was not. Because the jury rendered a general
guilty verdict that did not specify the basis for the conviction, the
question becomes whether it is possible for us to determine such
basis.
It is undisputed that several of the images involved the use of an
actual, identifiable minor named "Mike" from the Raleigh, North Car-
olina area. The jury’s conviction of Ellyson for his possession of these
particular images would not offend the First Amendment under Free
Speech Coalition. There are other images contained on Ellyson’s dis-
kettes, however, with respect to which the government failed, at least
on the record before us, to establish the use of an actual child victim.
Agent Michael Darnell, who had experience in the investigation of
cases involving internet child pornography and was specially trained
to extract such images from a defendant’s computer, testified that it
is "possible to completely construct an image of a young boy . . . not
having utilized a young boy in the construction of that image." J.A.
1321.4 Agent Darnell indicated that diskette number 20, for example,
4Although Agent Darnell used the term "morphing" to describe this
process, it is clear from his comments as a whole that he was describing
what the Supreme Court called "virtual" pornography. See Free Speech
Coalition, 122 S. Ct. at 1397.
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contained 57 images of child pornography, but that he did not know
whether these particular images involved the use of actual children or
whether the images were virtual creations. Had the jury found Ellyson
guilty based on these images because they "appeared to be" a depic-
tion of child pornography, the verdict could not stand under Free
Speech Coalition. In sum, the evidence in the record, coupled with the
court’s instructions, permitted the jury to convict Ellyson on both a
constitutional and unconstitutional basis. Because there is no way for
us to determine the jury’s basis for its verdict, we must set the verdict
aside. Cf. Richardson, 304 F.3d at 1064 (finding jury instructions
plainly erroneous but concluding that the error did not affect the "fair-
ness, integrity of public reputation" of the judicial process where "the
evidence clearly established that the children depicted in the images
or pictures were actual children").
D.
This conclusion does not end the matter because we must deter-
mine whether the government may retry Ellison or whether he is enti-
tled to an outright reversal and judgment of acquittal. Ellyson
contends that he is entitled to a judgment of acquittal because only
images involving the use of an actual child are sufficient to support
a conviction, and that the government failed to introduce evidence
establishing an interstate nexus with those relatively few images
introduced that depicted an actual child. Ellyson concedes that the
images of "Mike" — approximately 12 of them — were images of an
actual child; however, he contends that the government failed to meet
its burden of establishing that the images of Mike were "mailed, or
shipped or transported in interstate or foreign commerce by any
means, including by computer, or that was produced using materials
that have been mailed, or shipped or transported in interstate or for-
eign commerce by any means, including by computer." 18 U.S.C.A.
§ 2252A(a)(5)(B).
When an appellate court vacates a conviction based on an error in
the trial proceedings, the government is generally free to retry the
defendant. See Lockhart v. Nelson, 488 U.S. 33, 38-39 (1988). Well-
established Supreme Court jurisprudence on this subject teaches that
"the Double Jeopardy Clause’s general prohibition against successive
prosecutions does not prevent the government from retrying a defen-
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dant who succeeds in getting his first conviction set aside . . . because
of some error in the proceedings leading to conviction." Id. at 38.
However, there is an exception to this rule "when a defendant’s con-
viction is reversed by an appellate court on the sole ground that the
evidence was insufficient to sustain the jury’s verdict." Id. at 39; see
Burks v. United States, 437 U.S. 1, 18 (1978). "A reversal based on
the legal insufficiency of evidence is, in effect, a determination that
the government’s case was so lacking that the trial court should have
entered a judgment of acquittal rather than submitting the case to the
jury." United States v. Akpi, 26 F.3d 24, 25 (4th Cir. 1994). The Dou-
ble Jeopardy Clause does not permit "the prosecution another oppor-
tunity to supply evidence which it failed to muster in the first
proceeding." Burks, 437 U.S. at 11; see Gilliam v. Foster, 61 F.3d
1070, 1085 (4th Cir. 1995) (en banc) (Niemeyer, J., dissenting) ("The
Court has stated that the protection against affording the prosecution
a second opportunity to supply evidence which it failed to present ini-
tially" falls within the heart of double jeopardy protection). By con-
trast, a conviction set aside based on trial error "does not constitute
a decision to the effect that the government has failed to prove its case
. . . [and] it implies nothing with respect to the guilt or innocence of
the defendant." Burks, 437 U.S. at 15.
Although Ellyson’s claim focuses on what he believes is insuffi-
cient evidence of an interstate nexus to the images of "Mike," the
basis for setting aside Ellyson’s conviction is not an insufficiency of
evidence; rather, we must set aside the verdict because of the errone-
ous jury instruction. Under circuit law at the time of trial, the govern-
ment presented more than sufficient evidence to support a guilty
verdict against Ellyson. Prior to Free Speech Coalition, the govern-
ment could satisfy its burden by showing that Ellyson’s child pornog-
raphy "appear[ed] to be of a minor" under § 2256(8)(B), and it was
unnecessary for the government to offer evidence that a minor
depicted in a given image was an actual child and not a computer-
generated image. See Mento, 231 F.3d at 921-22.
The record contains substantial evidence that the images possessed
by Ellyson (apart from the ones involving "Mike"), at the very least,
"appeared to be of . . . minors" involved in sexually explicit conduct,
see 18 U.S.C.A. § 2256(8)(B), and that such images had moved in
interstate commerce, see 18 U.S.C.A. § 2252A(a)(5)(B). As estab-
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lished through the testimony of several witnesses, Ellyson’s diskettes
contained numerous images depicting minor boys, teenage and youn-
ger, engaged in sexual activity. These images were originally stored
on the diskettes by James Manchester, an inmate Ellyson befriended
while Ellyson was serving time for violating the terms of his super-
vised release imposed in connection with an unrelated child pornogra-
phy offense. Manchester testified that he downloaded images of child
pornography from various internet websites onto the diskettes and
ultimately gave the diskettes to Ellyson because of Ellyson’s shared
interest in child pornography. Agent Darnell, who examined each
image contained on the diskettes, testified that the images depicted
"young boys engaged in different sexual acts." J.A. 1311. Because the
actual images have not been included in the joint appendix, we have
not reviewed them. However, Ellyson does not dispute that a substan-
tial number of these images appear to depict minors engaged in sexu-
ally explicit conduct and, therefore, at the very least, fell within the
definition of child pornography under § 2256(8)(B) prior to Free
Speech Coalition.
There was also substantial evidence to satisfy the interstate com-
merce component of § 2252A(a)(5)(B) with respect to a number of
the images Manchester downloaded from the Internet and stored on
the diskettes discovered in Ellyson’s possession. Superimposed over
some of these images were internet addresses for European child por-
nography websites or other indications that the image originated from
a particular website, such as a logo. For example, exhibit 204, which
Agent Darnell described as "pictures of young males engaged in vari-
ous sexual activit[ies]," bore a "Pink Panther" logo that Agent Darnell
identified as an European internet website "visited by people looking
for child pornography." J.A. 1324-25. A graphic reference to a Euro-
pean child pornography website, where it is superimposed over the
visual depiction itself and the nature of the website is verified through
the testimony of an agent with relevant experience, is sufficient evi-
dence, albeit circumstantial, to establish an interstate nexus under
§ 2252A(a)(5)(B). See United States v. Runyan, 290 F.3d 223, 242
(5th Cir.) (acknowledging that "the presence of a website address
embedded on the image" may constitute "sufficient evidence of inter-
state transportation to support a conviction under § 2252A"), cert.
denied, 123 S. Ct. 137 (2002); United States v. Hilton, 257 F.3d 50,
54-55 (1st Cir. 2001) ("[P]roof of transmission of pornography over
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the Internet . . . satisfies the interstate commerce element of the
offense," which the government supplied through testimony from a
computer forensics agent that images had "likely" been downloaded
from the Internet because the storage disk "contained software used
in conjunction with Internet chat rooms.").
Thus, the double jeopardy concerns that preclude the government
from having a second opportunity to build a case against a defendant
when it failed to do so the first time are not present here. Any insuffi-
ciency in proof was caused by the subsequent change in the law under
Free Speech Coalition, not the government’s failure to muster evi-
dence. In Lockhart, the Court addressed a somewhat analogous situa-
tion in which the defendant argued that retrial was impermissible
because once his conviction had been set aside on appeal based on
erroneously admitted evidence, the remaining (properly admitted) evi-
dence was insufficient to sustain a conviction. See 488 U.S. at 34. The
Court concluded that retrial was permitted "where the evidence
offered by the State and admitted by the trial court . . . would have
been sufficient to sustain a guilty verdict." Id. The Court explained
that, had the evidence been properly excluded at trial, the government
would have had an opportunity to offer other evidence to satisfy its
burden. See id. at 42. Similar reasoning applies here. The government
presented its evidence under the wrong standard, i.e., it presented evi-
dence correctly believing, based on the law at the time, that it was
enough to prove the images "appeared" to depict minors. If the evi-
dence in the record is insufficient to support a verdict under Free
Speech Coalition, it is not because of the government’s failure of
proof but because of the changes brought by Free Speech Coalition.
Moreover, there is, even after Free Speech Coalition, sufficient
evidence in the record to support a guilty verdict on the basis that
Ellyson possessed images involving the use of actual minors. At a
minimum, sufficient evidence was introduced through testimony sur-
rounding the creation, storage and movement of the images of
"Mike," an actual, identifiable child. The images of Mike were cre-
ated originally by Manchester, who later gave them to Ellyson. Man-
chester testified that he had created the images of Mike, a 12-year-old
boy from Manchester’s neighborhood, and eventually that he had
been convicted of producing and distributing child pornography as a
result of his illicit activities with Mike. Manchester videotaped Mike
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engaged in graphic sexual activity in the living room of Manchester’s
home. Manchester, who apparently had been a computer instructor,
then "digitized" various still images from the videotape of Mike and
put these pictures on a computer file. Manchester made these still pic-
tures from the videotape available for others to view or access on the
Internet. Manchester indicated that the images of Mike were then
downloaded onto the diskettes from the Internet. After Manchester
stated unequivocally that the images contained on the diskettes had
come from the Internet, the prosecutor asked Manchester to explain
his answer further and Manchester then expressed some uncertainty
as to the sequence of events.
In mounting a challenge to the sufficiency of the evidence, a defen-
dant must overcome a heavy burden in that we view the evidence in
the light most favorable to the government, "making all inferences
and credibility determinations in its favor." United States v. Hoyte, 51
F.3d 1239, 1245 (4th Cir. 1995); see United States v. Romer, 149 F.3d
359, 364 (4th Cir. 1998). The evidence connecting the images of
Mike to interstate commerce is thin, and Manchester’s equivocation
clouded the record somewhat. Nevertheless, read in the light most
favorable to the government, Manchester’s testimony was sufficient
to establish the interstate connection. See Runyan, 290 F.3d at 242;
Hilton, 257 F.3d at 54-55. Manchester testified that, after creating the
videotape, he first stored the still images of Mike on his computer and
then put them on the Internet. Manchester never disclaimed his initial
response that he subsequently pulled the pictures from the Internet
onto the diskettes that he gave Ellyson; he just expressed uncertainty.5
Finally, retrial is appropriate because not only do the Mike images
involve a real child victim, but the other images depicting minors
engaged in explicit sexual activity also may well involve actual chil-
dren. The government represents that it is clear simply from looking
at many of the images on their face that actual children were
5Ellyson also contends that we should not consider the images of Mike
because they were not introduced as substantive evidence but only to
show intent, motive, or lack of mistake. A review of the record, however,
reveals that at least two of the three diskettes containing the images of
Mike were introduced by the government without objection from Elly-
son.
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involved. As we have indicated, this is not apparent from the materi-
als before us, which do not include the images. See Richardson, 304
F.3d at 1064 (concluding that disputed images depicted actual chil-
dren based in part on appellate panel’s review of images). But neither
is it apparent that the images are computer-generated virtual pornog-
raphy. In fact, there has been no suggestion whatsoever that such is
the case. Accordingly, we are satisfied that retrial is appropriate.
IV.
We vacate Ellyson’s conviction and remand for further proceedings
consistent with this opinion.
VACATED AND REMANDED
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