United States v. Raney, Kenneth J. ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2086
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KENNETH J. RANEY,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 CR 557—James B. Moran, Judge.
____________
ARGUED MAY 22, 2003—DECIDED AUGUST 20, 2003
____________
Before BAUER, KANNE, and ROVNER, Circuit Judges.
KANNE, Circuit Judge. On the spring afternoon of June
13, 2001, thirty-eight-year-old Kenneth J. Raney pulled
his gray station wagon into the parking lot of a McDonald’s
restaurant in Forest Park, Illinois. He parked the car,
walked inside the restaurant to a pay phone, and called a
fourteen-year-old girl named “Dena” to tell her that he was
there, waiting for her. He and Dena had been exchanging e-
mails for the past three months at an Internet chatroom
entitled, in relevant part, “I LOVE OLDER MEN.” Raney
believed that Dena was a young virgin, who wanted to have
sex with him and was willing to let him take photographs
of the acts.
2 No. 02-2086
Fortunately, Dena was only a figment of Raney’s imagina-
tion, conjured up by Cook County (Illinois) deputy sheriff
William Plahm, who had played the role of Dena during the
three-month Internet exchange, and deputy sheriff Janet
Montecelo, who had posed as Dena in some photographs
that Officer Plahm had e-mailed to Raney and who on
occasion had answered Raney’s telephone calls to Dena.
Raney and Dena had begun chatting on April 24, 2001.
Officer Plahm, identifying himself by the username
“ilgirl4u” entered the “I LOVE OLDER MEN” chatroom and
was immediately contacted by Raney, who, employing the
username “mastericeman,” requested a private communica-
tion. During this first chat, Raney claimed to be “Ken,” a
thirty-eight-year-old man from southern Wisconsin. After
learning that the user “ilgirl4u” was claiming to be “Dena,
a fourteen-year-old-girl from Forest Park, Illinois,” Raney
asked her, “What do you like to do with older men?” When
Dena replied that she was a virgin, Raney offered to teach
her personally about sexual intercourse and oral sex. To
preempt any concerns she might have about pregnancy, he
informed Dena, “I’m surgically safe . . . have a vacectamy
[sic].” (Tr. at 46.)
Over the next several months, Raney tried to convince
Dena to meet with him to have sexual intercourse and
perform fellatio on him. He sent Dena nude pictures of
himself. Officer Plahm, in turn, sent Raney pictures of
Officer Montecelo, clothed, posing as Dena. Receipt of these
pictures prompted Raney to inquire, “You have any not
covering yourself up?” (Tr. at 60.) Officer Plahm also gave
Raney an undercover telephone number to contact Dena to
arrange for a meeting. When he called, Officer Montecelo
answered and she agreed to meet Raney at the McDonald’s
parking lot on April 28, 2001. Dena later e-mailed Raney to
postpone that meeting.
A number of the communications between Raney and
Dena discussed Raney’s desire to take sexually explicit pho-
No. 02-2086 3
tographs of her. When discussing the prospect of engaging
in sexual intercourse and oral sex with her, Raney asked
Dena, “you want me to take some pics of you when we are
doing it?” He told her he’d “like to take some of you nude
and sucking me . . . .” (Tr. at 98, 100.)
Over e-mail on June 7 and 11, 2001, Raney and Dena
made plans to meet on June 13 at the McDonald’s in Forest
Park. Dena asked Raney whether he planned on bringing
his camera with him to their meeting. Raney initially de-
clined but then relented, saying “good, take some nudes
then to [sic]” and “good, take a pic of you sucking me to [sic]
and when I fuck you you’ll have a pic to see that, how many
girls can say that.” (Tr. at 104.) Raney and Dena had two
additional on-line communications regarding their planned
June 13 meeting.
That morning, Raney and Dena e-mailed each other one
last time before their scheduled rendevous. Raney asked
Dena if she still wanted him to bring his camera. Dena
replied, “If you want to, sure,” to which Raney said, “I have
to stop and get some film.” (Tr. at 111.)
When Raney placed the call at McDonald’s, it was Officer
Montecelo who answered and told him that she, Dena, was
on her way. Raney then returned to his car in the parking
lot to wait for Dena. A short time later, Officer Montecelo
walked up to Raney’s car. When Raney suggested that she
get in the car with him, Montecelo identified herself as a
police officer and other officers lying in wait converged upon
the car to arrest Raney.
After his arrest, Raney signed written consent forms
authorizing agents to search his car, residence, computer,
and on-line computer accounts for materials “in the nature
of” child abuse, child exploitation, and child erotica. From
his station wagon, police recovered a pair of swim trunks,
a condom, sexual lubricant, a camera loaded with film, and
an empty Kodak film box.
4 No. 02-2086
From his residence in Janesville, Wisconsin, police
discovered and seized a large stack of photographs, which
included photos of homemade amateur pornography depict-
ing a naked Raney engaging in sex acts (sexual intercourse
and oral sex) with an adult female. That female was later
identified as Raney’s ex-wife. Also in the stack were photos
of clothed children, later identified as Raney’s sons.
Police confiscated Raney’s computer. Postal Inspector
Ronald Redus would later conduct a forensic analysis of its
hard drive, which would reveal numerous images of child
pornography as well as a scanned naked photo of Raney,
which he had e-mailed to Dena, several additional pieces of
Raney’s homemade pornography, and the photographs of
Officer Montecelo, which Raney had believed to be of Dena.
Back at the scene of his arrest, Raney was advised of
his constitutional rights. He signed a written Miranda
waiver and agreed to discuss his case. The police then
showed Raney copies of all the on-line communications
between Raney and Dena that they had monitored.
Raney acknowledged to his arresting officers that he
participated in these on-line communications as “master-
iceman.” Raney stated that in April 2001, he began corre-
sponding with a person he believed to be a fourteen-year-old
girl named Dena. He stated that he talked explicitly with
Dena about meeting her and the possibility of the two
having sex. He further admitted that he had traveled that
day from Janesville, Wisconsin to Forest Park, Illinois
in order to meet with Dena. He claimed, however, that his
purpose in meeting her was to talk her out of having sex
with him. He nonetheless admitted that had his efforts
at persuasion proven unsuccessful, he might have suc-
cumbed to temptation. He also admitted to possessing four
or five “father-daughter video clips,” which he had obtained
over the Internet.
Raney was indicted by a federal grand jury on one count
of traveling in interstate commerce for the purpose of en-
No. 02-2086 5
gaging in a sexual act with a minor, see 18 U.S.C. § 2423(b)
(2003), and one count of attempted manufacture of child
pornography, see 18 U.S.C. § 2251(a) & (e) (2003).1
At trial, Officers Plahm and Montecelo and Inspector
Redus testified regarding their knowledge of Raney’s
e-mail and telephone communications with Dena and the
materials recovered from his computer’s hard drive. The
government introduced into evidence all the on-line com-
munications between Raney and Dena, including the photo-
graphs that the two had exchanged. It also introduced the
evidence found in Raney’s car, which included the camera,
film, empty film box, condom and sexual lubricant.
From the results of Inspector Redus’s forensic analysis of
Raney’s computer, the government introduced into evidence
six images of child pornography, which depicted young girls
engaged in sexual intercourse or oral sex with adult males.
The government further introduced into evidence the stack
of photographs found at Raney’s house. The jury viewed
four of the pieces of homemade adult pornography depicting
Raney engaged in sexual intercourse and oral sex with his
ex-wife.
Raney testified in his own defense and denied having the
intent either to have sex with Dena when he traveled to
Illinois or to take sexually explicit photographs of her once
1
Raney’s indictment charged him with violating § 2251(a) & (d),
but while this appeal was pending, Congress amended the statute
by adding a new subsection (c), which prohibits the extraterrito-
rial production of child pornography for distribution in the United
States. Subsection (d) was changed—without alteration material
to any of the arguments Raney asserts here—to subsection (e),
and the statute’s internal references were modified accordingly.
See PROTECT Act § 10, S. Res. 151, 108th Cong. (2003) (enacted).
In this opinion, we will therefore address Raney’s challenges with
reference to the current version of § 2251.
6 No. 02-2086
he arrived. He admitted that he had been communicating
with Dena (and several other underage girls for that mat-
ter) in a sexually explicit manner in order to arouse himself
sexually so that he could masturbate. And Raney said that
he had traveled to Illinois on June 13 for the purpose of
meeting Dena, but added, consistent with his post-arrest
statement, that his true intentions were to dissuade her
from having sex with him. He also stated that he was going
to buy and sell some baseball cards in Illinois.
When confronted on cross-examination with the evidence
that police had recovered a condom and sexual lubricant
from his car, Raney testified that he had those items with
him because he was supposed to meet an adult male named
“Nathan” later that day in Elgin, Illinois. He admitted that
he had never before mentioned Nathan to anyone, including
his lawyer.
On the question of his intent to manufacture child
pornography, Raney admitted that he had told Dena that he
was going to take photos of her performing fellatio on him
and of the two of them engaging in intercourse. He also
admitted that he had loaded his camera with a new roll of
film and had brought it with him to his meeting with Dena.
He claimed, however, that in spite of his previous e-mail
statements, he brought along the camera and film only to
take pictures of his day with Dena and not for the purpose
of taking sexually explicit photographs of her. Raney also
admitted to having been in possession of child pornography,
which he had downloaded from the Internet to his com-
puter. He also admitted to having taken the homemade
adult pornographic photographs that had been seized from
his house.
The jury found Raney guilty on both counts of the indict-
ment. The district court sentenced Raney to 145 months
imprisonment.
Raney appeals his conviction arguing (1) that the seizure
of homemade adult pornography from his home exceeded
No. 02-2086 7
the scope of his consent search; (2) that he was denied
effective assistance of counsel when his trial attorney failed
to move to suppress the homemade adult pornography; (3)
that the district court erred in allowing the government to
introduce the homemade adult pornography into evidence;
and (4) that his indictment for attempting to manufacture
child pornography was defective.
ANALYSIS
Before trial Raney filed a motion to suppress his post-
arrest statements and all the evidence seized from his car
and house, arguing they were obtained as fruits of an arrest
unsupported by probable cause. The motion was denied.
The motion did not raise the particular argument that
Raney asserts here—that the seizure of the particular items
of homemade adult pornography was outside the scope of
his consent. Raney has thus failed timely to raise a specific
objection and by doing so has forfeited his argument. Con-
sequently, our review is for plain error only. United States
v. Harris, 271 F.3d 690, 700 (7th Cir. 2001). To establish
plain error, Raney must show an error that was plain, that
affected substantial rights, and that seriously affected the
fairness, integrity, or public reputation of the proceedings.
United States v. Martin, 287 F.3d 609, 614 (7th Cir. 2002).
We do not think it plain that the homemade adult porno-
graphy seized from Raney’s apartment should have been
suppressed. Raney notes that his possession of the adult
pornography was perfectly legal and argues that the adult
pornography seized from his home had no nexus to child
abuse, child exploitation, or child erotica. Because Raney
consented only to a search for evidence in the nature of
child abuse, child exploitation, and child erotica, Raney
argues that the four photographs depicting himself and his
ex-wife in various stages of undress and participating in
oral sex and sexual intercourse should have been sup-
pressed as exceeding the scope of his consent.
8 No. 02-2086
We have stated that “[t]he scope of a consent search is
limited by the breadth of actual consent, and whether the
search remained within the boundaries of the consent is a
question of fact to be determined from the totality of all the
circumstances.” United States v. Torres, 32 F.3d 225, 230-31
(7th Cir. 1994) (quotations omitted). Our standard in deter-
mining the scope of a suspect’s consent is that of objective
reasonableness—“what would the typical reasonable person
have understood by the exchange between the officer and
the suspect?” Id. (quotation omitted).
We have long recognized that “[g]overnment agents may
not obtain consent to search on the representation that they
intend to look only for certain specified items and subse-
quently use that consent as a license to conduct a general
exploratory search.” United States v. Dichiarinte, 445 F.2d
126, 129 (7th Cir. 1971). In Dichiarinte, we found that law
enforcement officers had exceeded the scope of the defen-
dant’s consent to search his home for narcotics when they
read the defendant’s personal papers and then seized docu-
ments implicating the defendant in tax fraud. Id. at 130.
The defendant had authorized only a search reasonably
necessary to determine the presence of narcotics. The offi-
cers exceeded the scope of that consent when they went
beyond what was necessary to determine if the defendant
had hidden narcotics among his personal papers and
started to read the papers to determine whether they
evidenced other illegal activity. Id. The evidence, we held,
should have been suppressed.
Likewise, in United States v. Carey, 172 F.3d 1268 (10th
Cir. 1999), the Tenth Circuit found that law enforcement
officers exceeded the scope of a warrant to search a defen-
dant’s computer for documentary evidence “pertaining to
the sale and distribution of controlled substances” when
their search of the defendant’s hard drive uncovered evi-
dence of possession of child pornography. Id. at 1272-73.
No. 02-2086 9
During the search of the hard drive, law enforcement came
across a number of files labeled ”.JPG.” Upon opening the
first ”.JPG” file, the agent found an image of child pornogra-
phy. Rather than getting a separate warrant to search the
other ”.JPG” files, the agent continued to open them and
uncover additional child pornography. The Tenth Circuit
found that the agent had exceeded the scope of the warrant
by continuing to open the ”.JPG” files after the initial file
revealed child pornography because the warrant was
limited to a search for narcotics-related evidence. Id.
at 1274-76.
From these cases and others like them, see, e.g., United
States v. Turner, 169 F.3d 84, 85 (1st Cir. 1999) (upholding
suppression of child pornography where search of computer
files exceeded the scope of consent search), Raney argues
the seizure of the photographs was improper because the
photos did not depict a minor in a sexually explicit manner
and thus were not within the scope of his consent. The
government makes no argument in response that it was
reasonable for law enforcement to have suspected that the
woman depicted was a child. (Having viewed the photos, it
would not have been reasonable so to have suspected.) Nor
does the government attempt the strained argument that
possession of adult pornography in general, including
commercial adult pornography, is somehow material “in the
nature of” child erotica or probative of Raney’s intent to
manufacture child pornography.
Instead, it is the homemade nature of the photos and the
particular sex acts depicted therein in combination with
Raney’s clearly stated intention to make homemade child
pornography with Dena depicting those very same acts that
the government argues places the items within the scope of
a search for materials “in the nature of” child abuse, child
erotica, and child exploitation. In several of his computer
communications with Dena just before his arrest, Raney
stated his intention to take photographs of Dena and him
10 No. 02-2086
engaging in sexual intercourse and oral sex. For example,
just two days before his arrest, Raney sent Dena an e-mail
in which he stated that he was going to bring his camera
with him in order to “take some nudes then to [sic]” and
“take a pic of you sucking me to [sic] and when I fuck you
you’ll have a pic to see that.” (Tr. 104.) This communication
fell on the heels of another in which Raney stated that he
would “like to take some of you nude and sucking me.” (Tr.
100.) And the day of his arrest, Raney had told Dena he
would need to make a stop before their scheduled meeting
to pick up some film for his camera. It was in light of these
on-line communications as well as the discovery of the
camera, empty box of film, condom, and sexual lubricant in
his car that the agents conducting the search found the
homemade adult pornography depicting Raney engaging in
oral sex and sexual intercourse. Under these circumstances,
it was not plainly erroneous reasonably to construe this
homemade adult photography as evidence “in the nature
of” child erotica. The homemade adult pornography de-
picted acts directly related to Raney’s intent to manufacture
child pornography depicting identical acts using Dena as a
subject.
Besides paying little heed to the particular circumstances
of his case, Raney’s argument also ignores the breadth of
the language of the consent form he signed. He consented
to a search for “materials which are evidence in the nature
of” child abuse, child erotica, or child exploitation. The use
of the “in the nature of” phrase broadens the scope of the
search beyond that necessary for the retrieval of only the
specific items listed in the form.
Raney’s reliance upon cases such as Dichiarinte, Carey,
and Turner is therefore misplaced. For example, had the
agents in Dichiarante obtained consent to search for evi-
dence “in the nature of” narcotics, the search would have
been broad enough to include the seizure of drug parapher-
nalia, scales, and even drug ledgers; such language also
No. 02-2086 11
would have enabled the agents to read the defendant’s
private papers and seize them if they discovered some link
to narcotics. Restated, we agree with the government when
it argues that the situation in Dichiarinte would be analo-
gous to Raney’s case assuming the following additional
hypothetical circumstances: (1) the agents had received
information from the defendant that he sold illegal nar-
cotics in old prescription bottles; (2) the defendant gave the
agents consent to search his residence for “evidence in the
nature of illegal narcotics,” rather than simply narcotics
themselves; and (3) during the search of defendant’s home
the agents came across prescription bottles containing
legally prescribed narcotics. Under these hypothetical
circumstances, the consent given would include the seizure
of those prescription bottles, even if they were legal for the
defendant to possess, because they pertain to the manner in
which the defendant distributed the narcotics and would
thus be evidence “in the nature of” narcotics.
Likewise, the homemade adult pornography seized here,
although legal for Raney to have made and possessed,
reasonably could be construed to be evidence “in the nature
of ” child abuse, child erotica, or child exploitation given the
broad nature of the consent given and in light of Raney’s
communications regarding his intent to manufacture child
pornography depicting the same sexual acts with Dena.
Unlike the cases upon which Raney relies, where law
enforcement officers seized items wholly unrelated to the
stated purpose of the search and the charges under investi-
gation (and thus outside of any objectively reasonable con-
struction of the defendant’s consent), the agent’s seizure of
the homemade adult pornography in this case was related
to the issue of Raney’s intent to abuse and exploit a minor
sexually. Based on the totality of these circumstances,
including most prominently Raney’s stated intention to
manufacture pornography depicting himself engaging in
sexual intercourse and oral sex with a minor, we find that
12 No. 02-2086
a reasonable person would have construed Raney’s consent
to search his home for evidence “in the nature of” child
erotica broadly enough to justify the seizure of evidence
that showed Raney’s ability and intent to manufacture
pornography depicting himself engaging in those sexual
acts. We thus find no plain error in the district court’s
failure to suppress this evidence.
Further, even if the agents were operating outside the
scope of Raney’s consent when they seized the photographs,
the agents would have properly seized the material under
the plain-view doctrine, which allows for seizure of material
if (1) a law-enforcement officer is lawfully present, (2) an
item not named in the warrant (or, likewise, outside the
scope of consent) is in the plain view of the officer, and (3)
the incriminating nature of the item is immediately appar-
ent (i.e., the government can show probable cause to believe
the item is linked to criminal activity). See United States v.
Bruce, 109 F.3d 323, 328-29 (7th Cir. 1997).
Here, the agents were properly in Raney’s residence
executing a consensual search of the complete premises
when they discovered the photographs in plain view. The
agents had probable cause to believe the adult pornography
depicted was linked to criminal activity given its homemade
nature, the particular acts depicted, and Raney’s stated
intention to photograph Dena engaging in those same acts;
thus, the plain-view doctrine applies.
That the items themselves were perfectly lawful for
Raney to have possessed does not bar the application of the
doctrine. See, e.g., Bruce, 109 F.3d at 328-29 (upholding the
seizure of ammunition under warrant to seize rifles; “Am-
munition such as shotgun shells, while not contraband,
assumes an incriminating nature in connection with the
search for items such as assault rifles.”); see also United
States v. Van Dreel, 155 F.3d 902, 905 (7th Cir. 1998)
(“Although guns and ammunition may be lawfully pos-
No. 02-2086 13
sessed, in the context of bank robbery and hunting out of
season, these items assume an incriminating nature, and
the court rightfully allowed the officers to search for them
in the instant case.”); United States v. Cooper, 19 F.3d 1154,
1163 (7th Cir. 1994) (empty ammunition box found in
search for drugs); United States v. Cervantes, 19 F.3d 1151,
1153 (7th Cir. 1994) (large amount of money found in the
defendant’s car after a drug transaction); United States v.
Walton, 814 F.2d 376, 380 (7th Cir. 1987) (money and maps
found in a bank robbery case).
In fact, in each of the cases relied upon by Raney, the
deciding courts recognized the potential application of the
plain-view doctrine. In Dichiarinte, we held the plain-view
doctrine did not apply because the criminal character of the
documents was not apparent during a surface inspection;
the documents had to be opened and read. 445 F.2d at 130-
31. In Carey, the Tenth Circuit held the first image of child
pornography, which the agent had stumbled upon in his
search for narcotics-related evidence, admissible under the
plain-view doctrine. 172 F.3d at 1273 n.4. And in Turner,
the First Circuit refused to apply the doctrine because the
government couldn’t satisfy the second element—the de-
fendant’s consent did not allow law enforcement to search
the computer for documentary or photographic evidence.
169 F.3d at 88.
Finally, even if we were to assume arguendo that the
seizure of the homemade adult pornography was outside the
scope of consent and that the incriminating nature of the
items was not so readily apparent as to fall within the
plain-view doctrine’s reach, Raney would still be unable to
satisfy his burden under the plain-error standard because
he could not show that the introduction of the evidence at
his trial affected substantial rights and seriously under-
mined the fairness, integrity, or public reputation of the
judicial proceedings. United States v. Ramirez, 182 F.3d
14 No. 02-2086
544, 547 (7th Cir. 1999). We will reverse a conviction under
plain-error review only where it is necessary to avoid a
miscarriage of justice, United States v. Young, 470 U.S. 1,
16 (1985); United States v. Conley, 291 F.3d 464, 470 (7th
Cir. 2002), and there is “no miscarriage of justice if the
defendant’s guilt is so clear that he would certainly have
been convicted even if the error had never been committed.”
United States v. Baker, 78 F.3d 1241, 1246-47 (7th Cir.
1996) (quotation omitted). Here, the government presented
ample evidence aside from the homemade adult pornogra-
phy upon which the jury would have rendered a guilty
verdict, including all the on-line communications between
Dena and Raney, in which he described with particularity
his intent to photograph Dena engaging in sexual inter-
course and oral sex with him, the tape-recorded phone
conversations between Officer Montecelo and Raney, and
the loaded camera, empty box of film, sexual lubricant, and
condom found in Raney’s car that afternoon. Thus, Raney
cannot establish that this error affected his substantial
rights or that it seriously affected the fairness of his pro-
ceedings.
We will not belabor the obvious conclusion that Raney’s
remaining challenges regarding the introduction of this
evidence at trial must also fail. Given our observation that
the homemade nature of the photos and the particular acts
depicted therein were probative of Raney’s intent to photo-
graph himself engaging in those same acts with Dena, we
don’t think his attorney erred in failing to move to suppress
them (for, given our analysis, his challenge likely would
have failed) nor that the district court erred by admitting
them for the limited purpose of showing intent. Accord
United States v. Esch, 832 F.2d 531, 535-36 (10th Cir. 1987)
(finding that “swingers” magazines, as well as advertise-
ments and photographs mailed to such magazines by
defendants, were relevant and admissible in child-exploita-
tion case to show that defendant had previously sent
No. 02-2086 15
sexually explicit materials through mail and that she knew
or had reason to know that the photographs that gave rise
to her prosecution would be mailed); United States v. Garot,
801 F.2d 1241, 1247 (10th Cir. 1986) (upholding admission
of pornography that was arguably legal in child-exploitation
case for the limited purpose of showing scienter). But even
if Raney’s attorney or the district court did err, Raney can’t
possibly establish that he was prejudiced by the errors
given the plethora of other evidence that was probative of
his intent including, inter alia, the loaded camera, empty
film box, condom, sexual lubricant, and his repeated explicit
statements regarding his intent to photograph Dena.
We can dispense with Raney’s final argument—that he
can’t be convicted under an indictment that charged him
with attempting to manufacture child pornography in vio-
lation of § 2251—with similar brevity. Section 2251 reads
as follows:
(a) Any person who employs, uses, persuades, induces,
entices, or coerces any minor to engage in . . . any sex-
ually explicit conduct for the purpose of producing any
visual depiction of such conduct, shall be punished as
provided under subsection (e), if [defendant’s conduct
satisfies the statute’s jurisdictional interstate-commerce
element] . . . .
(e) Any individual who violates, or attempts or conspires
to violate, this section shall be fined under this title and
imprisoned not less than 15 years nor more than 30
years. . . .
18 U.S.C. § 2251 (2003) (emphasis added). Under the plain
reading of § 2251, it is a violation of the statute to manufac-
ture child pornography, to conspire to manufacture child
pornography, or to attempt to manufacture child pornogra-
phy. Id. Raney tries to parse the statute by arguing that
the “charging” language of subsection (a) and the “punish-
ment” language of subsection (e) should be treated as sepa-
16 No. 02-2086
rate offenses. Because the word “attempt” does not appear
in subsection (a), Raney argues that it is not a violation of
the statute to attempt to manufacture child pornography.
See United States v. Anderson, 89 F.3d 1306, 1314 (6th Cir.
1996) (“Attempt is only actionable when a specific federal
criminal statute makes it impermissible to attempt to
commit the crime.”); United States v. Padilla, 374 F.2d 782,
787 n.2 (2d Cir. 1967) (same).
Other courts that have had occasion to construe § 2251
have concluded that it plainly proscribes not only the
manufacture of child pornography, but also the inchoate
crimes of attempt and conspiracy. See United States v.
Crow, 164 F.3d 229, 234-35 (5th Cir. 1999) (recognizing that
“[subsection (e)] provides punishment for ‘any individual
who violates, or attempts or conspires to violate’ this sec-
tion.”) (quoting pre-2003 amendment version of 18 U.S.C.
§ 2251(d)); United States v. Buculei, 262 F.3d 322, 328-30
(4th Cir. 2001) (observing that simply because the defen-
dant was unsuccessful in his attempt to actually produce a
visual depiction of sexually explicit conduct with a minor
does not mean that he did not violate § 2251). And while
neither Crow nor Buculei is dispositive, similar challenges
to nearly identical statutory schemes have failed. See, e.g.,
18 U.S.C. § 1751 (2003) (proscribing in subsection (a) the
killing of the President of the United States and in subsec-
tion (c), amid punishment-related language, anyone from
attempting to kill the President); United States v. Duran, 96
F.3d 1495, 1507-09 (D.C. Cir. 1996) (upholding charge of an
attempt to kill the President under these two subsections).
We therefore hold that § 2251 clearly proscribes the
attempt to manufacture child pornography and that Raney’s
indictment charging him with an attempt to violate §
2251(a) & (e) was not defective.
No. 02-2086 17
CONCLUSION
Because we find the homemade adult pornography within
the scope of the consent search and probative of Raney’s
intent to manufacture homemade child pornography, we
find no Fourth Amendment violation nor error in allowing
the material to be introduced into evidence at trial. But
even if we had found error, it would have been harmless
given the overwhelming evidence implicating Raney’s guilt.
And because 18 U.S.C. § 2251 clearly proscribes attempts
to manufacture child pornography, Raney’s argument that
the second count of the indictment was defective is wholly
without merit. We, therefore, AFFIRM.
ROVNER, Circuit Judge, concurring in the judgment. I do
not agree that the evidence was properly seized as evidence
“in the nature of ” child abuse or as evidence of an incrimi-
nating nature under the plain view doctrine. The photo-
graphs at issue were lawful photographs of consenting
adults and have no relationship to child abuse. In addition,
there is no reason to believe that those lawful photographs
of adults were “linked to criminal activity.” Although the
evidence may well have been admissible at trial if properly
seized, as relevant to his claim that he had no intent to take
explicit photographs, that is not the same question as
whether it is “in the nature of” child abuse for purposes of
the initial seizure, or as whether it is of “an incriminating
nature that is immediately apparent” for the plain view
doctrine.
18 No. 02-2086
Although I disagree with the majority on those points, I
agree that the admission of the evidence does not constitute
reversible error. Raney cannot demonstrate the failure to
suppress the photographs constitutes plain error because he
cannot establish that it affected his substantial rights, or
prejudiced him. Raney stated in his e-mails his intention to
take pictures of the two of them engaged in various sex
acts, and had e-mailed a picture of himself nude. Raney also
told “Dena” that he would bring his camera and needed to
stop for film, and the police seized the camera loaded with
film and an empty Kodak film box from Raney’s car at the
time of his arrest. The photographs do not add anything to
that. At most, the photographs indicate Raney’s ability and
willingness to take such pictures, but the picture of himself
that he e-mailed, the statements in his e-mail, and his
actions in bringing the camera and purchasing film for it,
establish those same propositions much more directly.
Because I agree that there is no plain error here requiring
reversal, I concur in the judgment.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-20-03