Child Porn Defendant Loses on 'Viewed' but not 'Received' Claim - U.S. Tenth Circuit
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Child Porn Defendant Loses on 'Viewed' but not 'Received' Claim

Kenneth Dean Sturm may have asserted the creepiest defense yet to a child pornography possession charge.

Sturm was indicted for knowing possession of three specific images of child pornography and knowing receipt of materials containing images of child pornography. At trial, Sturm did not dispute he had searched for and viewed child pornography on the Internet; at the time, such conduct was not a federal crime. Instead, he argued that viewing and search for child pornography doesn't qualify as receiving the images.

The jury disagreed and convicted Sturm on both counts. Sturm appealed. This week, the Tenth Circuit Court of Appeals affirmed Sturm's convictions.

Under 18 U.S.C. §2252A, it is a crime to knowingly receive or possess child pornography. The words "receive" and "possess" are not defined in the statute, so they are given their everyday meanings.

The district court instructed the jury that "possession as it pertains to computer images can include proof that the defendant had control over the images in that he could copy them, review them, move them, enlarge them, print them or delete them." The court did not clarify "receipt," but it instructed that "to convict [Sturm] of Possession of Child Pornography, the government does not have to prove [that he] knowingly received Child Pornography." Finally, the district court advised the jury that "the mere act of observing child pornography, without possession or receipt, is not illegal." (The law was amended in 2008; now, observing child porn is both creepy and criminal.)

Sturm contends the instructions left the jury "free to adopt its own definitions of possession and receipt," and failed to instruct the jury that it could not convict him of "receiving" child pornography simply because he searched for it and viewed it on his computer. In particular, Sturm asserts the terms "receive" and "possess" are indistinguishably similar in their common usage. To differentiate the two, Sturm proposed an instruction that "'receive' means to acquire or obtain possession of material ... with intent to distribute those images."

The Tenth Circuit Court of Appeals noted that Sturm's instruction would require the addition of the phrase, but courts must "ordinarily resist reading words or elements into a statute that do not appear on its face." Recognizing that an intent to distribute is not required for a receipt-based conviction under §2252A(a)(2), the appellate court concluded that the district court properly rejected Sturm's proposed instruction and the instructions as a whole accurately state the applicable law.

It seems like the jury could have gone either way with this conviction, but it's difficult to empathize with someone who admits to searching for child pornography. Conversely, it's easy for the Tenth Circuit to say that there wasn't an error in the jury instruction when clarification would have meant adding words that weren't in the statute.

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