In United States v. Morgan Chase Woods, No. 11-11665 (June 18, 2012), an appeal from the United States District Court for the Southern District of Georgia that was heard before Circuit Judges Tjoflat, Hull and Kravitch, the Eleventh Circuit Court of Appeals affirmed a district court conviction and sentence.
Defendant Morgan Chase Woods was convicted of one count of receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2), and two counts of possession of child pornography, in violation of 18 U.S.C. § 2252A (a)(5)(B). Woods appealed, arguing that these receipt and possession statutes are unconstitutionally vague because the statutory language is unclear whether a person who merely views child pornographic images on his computer-versus a person who actually downloads copies of those images to a hard-drive-has “knowingly received” or “knowingly possessed” those images.
The Eleventh Circuit held that two of its recent decisions, taken together, show that a person who intentionally views, but does not download, child pornography necessarily “possesses” child pornography within the meaning of § 2252A(a)(5)(B). See United States v. Pruitt, 638 F.3d 763 (11th Cir. (2011) (holding that a person who “knowingly” views child pornography on a computer, but does not download it, “receives” child pornography); United States v. Bobb, 577 F.3d 1366, 1373 (11th Cir.2009) (holding that “receipt” necessarily entails “possession”).
The issue thus became whether § 2252A(a)(5)(B) provides “a person of ordinary intelligence fair notice” that it prohibits such conduct, and the Court held that it does. “Possession, ” the Court wrote, is ‘the act or condition of having in or taking into one’s control or holding at one’s disposal,’ and one who “knowingly” views images of child pornography on a computer, even without downloading or saving those images to the computer’s hard drive, takes those images into his control and has those images at his disposal. He may save those images to a different location on the computer, transmit the images over the internet, or show those images to others. Like the receipt statute, the terms of the possession statute thus provide “a person of ordinary intelligence fair notice of what is prohibited” and do not authorize or encourage “seriously discriminatory enforcement.”
The Court also concluded that the child pornography receipt and possession statutes are not overbroad. A statute is overly broad only if it prohibits a substantial amount of protected speech in relation to the statute’s legitimate sweep. The statutes Woods challenges prohibit only the knowing receipt or possession of “child pornography.” Child pornography is not speech protected by the First Amendment. Accordingly, the Court held that the two statutes’ very terms restrict their application to speech unprotected by the First Amendment.
In criminalizing this unprotected conduct or speech, the Court wrote, the statutes prohibit little, if any, protected speech or conduct. The statutes criminalize only “knowing” possession or receipt of child pornography, which eliminates the possibility that an unwitting downloader of child pornography will trigger liability under the statutes. Though Woods identified some problematic hypothetical applications of these statutes, the Court held that he had not demonstrated that these applications are substantial in relation to the statutes’ legitimate sweep.