Appeal from the United States District Court for the District of Oregon, Garr M. King, District Judge, Presiding, D.C. No. 3:06-cr-00018-KI.
The opinion of the court was delivered by: W. Fletcher, Circuit Judge
Argued and Submitted May 5, 2009 -- Portland, Oregon.
Before: William A. Fletcher, Carlos T. Bea and Sandra S. Ikuta, Circuit Judges.
David Lee Olander appeals the district court's denial of his motion to dismiss the charge against him for receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A). He argues that the sentencing scheme in § 2252A(b) and the legislative histories of the Protection of Children Against Sexual Exploitation Act of 1977; the Child Protection Act of 1984; the Child Protection Restoration and Penalties Enhancement Act of 1990; and the Child Pornography Prevention Act of 1996 indicate that the crime of receiving child pornography includes among its elements an intent to barter, trade, or gift (hereinafter "intent to distribute"). The government did not allege that Olander had an intent to distribute. Olander argues that the charge against him must therefore be dismissed. We hold that the crime of receiving child pornography codified at 18 U.S.C. § 2252A(a)(2)(A) does not include intent to distribute among its elements. We affirm the district court's denial of Olander's motion to dismiss the charge against him.
Olander was indicted for knowingly receiving computer images of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A) and (b)(1), and knowingly possessing images of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). Olander moved to dismiss the receiving charge, contending that "receiv[ing]" child pornography under § 2252A(a)(2)(A) requires an intent to distribute the pornography that has been received. The indictment did not charge that Olander had an intent to distribute.
The district court denied Olander's motion. It stated that he had made "compelling arguments" but that those arguments were foreclosed by United States v. Mohrbacher, 182 F.3d 1041 (9th Cir. 1999), United States v. Romm, 455 F.3d 990 (9th Cir. 2006), and United States v. Kuchinski, 469 F.3d 853 (9th Cir. 2006).
Olander then pled guilty to both charges in the indictment. The receiving charge carried a mandatory minimum sentence of five years. 18 U.S.C. § 2252A(b)(1). The possession charge did not have a mandatory minimum sentence. Id. § 2252A(b)(2). The district court sentenced Olander to five years in prison for each count, to be served concurrently.
Under the terms of his plea agreement, Olander reserved the right to appeal the district court's denial of his motion to dismiss the receiving charge. That appeal is now before us.
We review de novo a district court's decision whether to dismiss a charge in an indictment based on its interpretation of a federal statute. United States v. Gorman, 314 F.3d 1105, 1110 (9th Cir. 2002). "Questions of statutory interpretation are reviewed de novo." United States v. Youssef, 547 F.3d 1090, 1093 (9th Cir. 2008).
The issue in this case is whether the crime of receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A) includes among its elements an intent to distribute the pornography. If receiving child pornography requires an intent to distribute, then the charge against Olander must be dismissed because the indictment did not allege that he had such an intent.
A handful of Ninth Circuit opinions have addressed the crime of receiving child pornography under § 2252A(a)(2)(A). In Mohrbacher, the defendant had downloaded from the internet, and saved to his computer, images of child pornography. 182 F.3d at 1044. He was convicted of receiving child pornography in violation of § 2252A(a)(2)(A) and of transporting child pornography in violation of § 2252(a)(1). Id. at 1044-46. On appeal, he conceded that downloading amounted to receiving child pornography, but he argued that receiving via an internet download did not amount to transporting. Id. at 1047. We agreed, stating that a "customer who is simply on the receiving end" of computer images showing child pornography "is guilty of receiving or possessing such materials under § 2252(a)(2) but not of ...