THOMAS, Circuit Judge:
This appeal presents the question of whether a defendant can be convicted under 18 U.S.C. § 2251(d)(1)(A) if he does not produce the child pornography which he advertises or offers to distribute. We conclude that he can, and we affirm the judgment of the district court.
Williams used peer-to-peer file software to post and share more than 5,000 images of prepubescent children engaged in sexually explicit conduct. FBI agents repeatedly accessed these photos, eventually identified Williams as the owner of the files, and executed a search warrant of Williams's mobile home. There, they discovered a number of suspicious items, including x-rays depicting young boys' genitalia, a guide for interacting with boys, schedules for youth sporting events, photos of young boys at swimming tournaments, and bags of young boys' bathing suits, underwear, and pajamas. Following the search, Williams admitted that he used internet networks to view and share child pornography.
A grand jury subsequently indicted Williams for possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(B), and advertising the distribution of child pornography in violation of 18 U.S.C. § 2251(d)(1)(A). Williams filed a motion to dismiss the advertising to distribute child pornography charges, arguing that the statute only applies to individuals who either advertise to produce child pornography or advertise child pornography that they actually produced. The district court denied the motion. Williams then entered a conditional guilty plea, preserving his right to appeal the district court's denial of his motion to dismiss. In exchange for the guilty plea, the
The sole issue is whether 18 U.S.C. § 2251(d)(1)(A) requires an individual to personally produce the sexually explicit visual depictions of minors that he advertises for distribution.
In statutory construction, our starting point is the plain language of the statute. Children's Hosp. & Health Ctr. v. Belshe, 188 F.3d 1090, 1096 (9th Cir.1999). "[W]e examine not only the specific provision at issue, but also the structure of the statute as a whole, including its object and policy." Id. If the plain meaning of the statute is unambiguous, that meaning is controlling and we need not examine legislative history as an aide to interpretation unless "the legislative history clearly indicates that Congress meant something other than what it said." Carson Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d 863, 877 (9th Cir.2001) (en banc) (internal quotation marks and citations omitted). If the statutory language is ambiguous, then we consult legislative history. United States v. Daas, 198 F.3d 1167, 1174 (9th Cir. 1999).
The plain language of § 2251(d)(1)(A)
Our sister circuits have reached the same conclusion. The Second Circuit, the Third Circuit, and the Eighth Circuit have all upheld convictions against defendants who advertised the distribution of child pornography, but did not personally produce any sexually explicit images. See United States v. Christie, 624 F.3d 558 (3d
In sum, the plain language of the statute and interpretations by our sister circuits lead to the conclusion that personal production is not an element of the crime.
Williams's primary argument to the contrary is founded on verb tense. He argues that, because § 2251(d)(1)(A) refers to an offer that "involves" the use of a minor, rather than "involved" the use of a minor, Congress intended to insert a personal production requirement into the statute. Williams therefore argues that this statute does not apply to him since he advertised child pornography previously produced by another.
First, in context, the statute criminalizes the "production" of a "visual depiction" that involves a minor. No temporal limitation is contained in the "production" of the "visual depiction" involving minors, and the fact the statute criminalizes the "reproduction" of the "visual depiction" implies that the production may have already occurred.
In addition, the definition of "child pornography" in § 2256(8) of Chapter 110 implies that § 2251(d)(1)(A) should apply to past, present, and future acts. Specifically, § 2256(8)(A) defines "child pornography" as being a sexually explicit visual depiction that involves the use of a minor.
Further, statutes similar to § 2251(d)(1)(A) in Chapter 110 use the present tense to refer to acts that have been performed, are being performed, or will be performed. Section 2252(a)(2)(A), for example, punishes any person who "knowingly receives . . . any visual depiction. . . that has been mailed . . . [in interstate commerce] . . . if the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct." (emphasis added). Subsections 2252(a)(1)(A), (a)(2)(B), (a)(3)(B), and (a)(4)(B), all use the same phrase to criminalize behavior occurring in the past, present,
In support of his thesis, Williams relies on Carr v. United States, ___ U.S. ___, 130 S.Ct. 2229, 176 L.Ed.2d 1152 (2010). Carr held that "a statute's `undeviating use of the present tense' is a `striking indicator' of its `prospective orientation.'" Id. at 2231 (quoting Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 59, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987)). However, Carr is inapplicable here. Carr interpreted the retroactive reach of a statute, not the temporal application of statutory text in an enacted statute. See id. at 2236 (determining that a statute's use of the present tense, rather than the past or present perfect, "reinforces the conclusion that preenactment [conduct] falls outside the statute's compass") (emphasis added). More relevant for our purposes is Coal. for Clean Air v. So. California Edison Co., which acknowledges "[t]he present tense is commonly used to refer to past, present, and future all at the same time." 971 F.2d 219, 225 (9th Cir.1992). That construction is more consistent with the statute's reference to "any visual depiction."
Williams also argues that the purpose of § 2251 as a whole is to prohibit the production of visual depictions utilizing minors to engage in sexually explicit activity. This cramped construction is not supported by the text. Section 2251 is better understood as a statute prohibiting the exploitation of children, not merely the production of child pornography. In addition to subsection (d), the Act applies to any person who
Williams argues that all these provisions require some direct involvement with minors, and if we construe § 2251(d)(1)(A) not to require personal production, the subsection will be inconsistent with the rest of the statute. However, the presence of the conjunctive "or" means that each subsection in § 2251 may be treated as a separate and distinct criminal offense. See Azure v. Morton, 514 F.2d 897, 900 (9th Cir.1975). Accordingly, just because some subsections in § 2251 require that a defendant be directly involved in the production of child pornography, does not mean that all of the subsections in the statute contain this requirement. Indeed, § 2251(b) makes it a crime for parents and legal guardians to knowingly permit a minor in their care to engage in the production of child pornography. Nothing in the subsection requires that the parents or legal guardians personally participate in the production enterprise.
Further, § 2251(d)(1)(B) cannot be reconciled with Williams's interpretation. The subsection criminalizes the "participation in any act of sexually explicit conduct by or with any minor for the purpose of producing a visual depiction of such conduct." This subsection demonstrates how Congress communicates its intent when it wants to require a personal production element for conviction. Moreover, construing both subsections (a) and (b) to require personal production might render one of the two subsections superfluous and would thus violate an important rule of statutory construction—that every word and clause in a statute be given effect.
Even assuming, arguendo, that there was ambiguity in the statutory text, Williams's theory is not supported by the statute's legislative history. Section 2251, as originally enacted, did not include the advertising provision in question. Congress added this provision several years later with the intent to "ban the production and use of advertisements for child pornography." H.R.Rep. No. 99-910, at 1 (1986), reprinted in 1986 U.S.C.C.A.N. 5952, 5952.
Williams finally contends that he was charged under the wrong statute. He argues that he should have been charged under § 2252A. Section 2252A and § 2251(d)(1)(A) do have some overlapping elements. But the existence of common elements in other criminal statutes does not limit the scope of the statute at issue. See United States v. LaBinia, 614 F.2d 1207, 1209 (9th Cir.1980).
In sum, the plain language of § 2251(d)(1)(A) does not contain a personal production requirement, and nothing in the tense of the wording evidences a congressional intent to insert such an element. The district court properly denied Williams's motion to dismiss the indictment.