In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-1953

U NITED STATES OF A MERICA,
                                               Plaintiff-Appellee,
                               v.

P AUL K INCAID ,
                                           Defendant-Appellant.


            Appeal from the United States District Court
                 for the Central District of Illinois.
       No. 3:06-CR-30073-JES-BCG-1—Jeanne E. Scott, Judge.



       A RGUED JANUARY 7, 2009—D ECIDED JULY 6, 2009




  Before P OSNER, R IPPLE and R OVNER, Circuit Judges.
  R IPPLE, Circuit Judge. After a bench trial, Paul Kincaid
was convicted of one count of producing child pornogra-
phy, in violation of 18 U.S.C. § 2251(a), and one count
of possessing child pornography, in violation of 18 U.S.C.
§ 2252A(a)(5)(B). The district court sentenced him to 360
months’ imprisonment. Mr. Kincaid now appeals his
conviction. For the reasons set forth in the following
opinion, we affirm the judgment of the district court.
2                                                No. 08-1953

                              I
                     BACKGROUND
A. Facts
  In August 2006, police in Litchfield, Illinois, began
investigating Mr. Kincaid for possible possession and
production of child pornography.1 With the cooperation
of a woman who previously had been photographed by
Mr. Kincaid, police were able to discover the identity of
one of Mr. Kincaid’s victims. During an interview, this
young man informed law enforcement officials that,
when he was twelve years old, Mr. Kincaid had promised
“to give him money if he would do ‘something’ for him
[Kincaid].” R.31 at 3. The young man agreed, and, on
several occasions, Mr. Kincaid took sexually explicit
pictures of him and also engaged him in sexual activity.
  Based on this interview, and other information ob-
tained from cooperating witnesses, the authorities
secured a warrant to search Mr. Kincaid’s residence,
which was executed on September 6, 2006. When
presented with the warrant, Mr. Kincaid agreed to
speak with the officers and accompanied them to the
Litchfield Municipal Center, where Mr. Kincaid was
interviewed.
  During the interview, Mr. Kincaid explained “that he
was a homosexual and that members of the community,
especially minor children, would often approach him to


1
   The facts, as recounted in this section, are taken from the
stipulations submitted to the court by the parties.
No. 08-1953                                             3

discuss sexual matters.” 

Mr. Kincaid also
informed the officers that, “during these conversations,
minor males would occasionally ask him for oral sex
and . . . he would comply with those requests.” 

informed the interviewing officers that “he
had taken and preserved pictures of minor males naked
and while engaged in sex acts.” 

agreed
to accompany officers to his residence to locate these
pictures. Mr. Kincaid explained that he had created child
pornography and engaged in sexual contact with
minors over a five-decade period. Mr. Kincaid specifically
admitted: (1) to maintaining a long-term sexual relation-
ship with one minor male that began when the minor
was fourteen, (2) to engaging in oral sex with another
minor male on approximately ten occasions and
(3) to paying another minor male five dollars in ex-
change for showing Mr. Kincaid his genitals. Mr. Kincaid
further admitted to having “a problem with teenage
addiction—an obsessive attraction to boys 13-18.” 

(internal quotation marks omitted).
  The search of Mr. Kincaid’s home, conducted with his
cooperation, “resulted in the recovery of hundreds of
images of child pornography.” 

All of these
images were taken using Polaroid camera equipment.
Follow-up research revealed that the Polaroid camera,
which Mr. Kincaid had used for the last eight years, was
manufactured in China. Furthermore, at least some of
the film that Mr. Kincaid used to photograph his
victims was manufactured in the Netherlands.
4                                                     No. 08-1953

B. District Court Proceedings
  On October 4, 2006, a grand jury charged Mr. Kincaid
in a two-count indictment with the production of child
pornography in violation of 18 U.S.C. § 2251(a)2
and possession of child pornography in violation
of 18 U.S.C. § 2252A(a)(5)(B).3 The indictment charged



2
    18 U.S.C. § 2251(a) provides:
      Any person who employs, uses, persuades, induces, entices,
      or coerces any minor to engage in, or who has a minor assist
      any other person to engage in, or who transports any
      minor in or affecting interstate or foreign commerce, or in
      any Territory or Possession of the United States, with the
      intent that such minor engage in, any sexually explicit
      conduct for the purpose of producing any visual depiction
      of such conduct or for the purpose of transmitting a live
      visual depiction of such conduct, shall be punished as
      provided under subsection (e), if such person knows or
      has reason to know that such visual depiction will be
      transported or transmitted using any means or facility of
      interstate or foreign commerce or in or affecting interstate
      or foreign commerce or mailed, if that visual depiction
      was produced or transmitted using materials that have
      been mailed, shipped, or transported in or affecting inter-
      state or foreign commerce by any means, including by
      computer, or if such visual depiction has actually been
      transported or transmitted using any means or facility of
      interstate or foreign commerce or in or affecting interstate
      or foreign commerce or mailed.
3
    18 U.S.C. § 2252A(a) provides in relevant part:
                                                      (continued...)
No. 08-1953                                                     5

that Mr. Kincaid produced the pornographic photographs:
      knowing or having reason to know that such visual
      depictions would be transported in interstate and
      foreign commerce and mailed, and said visual depic-
      tions having been produced using materials that had
      been mailed, shipped, and transported in interstate
      and foreign commerce by any means, including by
      computer, and said visual depictions having actually
      been transported in interstate and foreign commerce
      and mailed.
R.11 (emphasis added). Count Two alleged                     that
Mr. Kincaid possessed pornographic materials,
      which had been mailed and shipped and transported
      in interstate and foreign commerce, including by
      computer, and that were produced using materials


3
    (...continued)
       (a) Any person who— . . .
          (5) either— . . .
          (B) knowingly possesses, or knowingly accesses with
          intent to view, any book, magazine, periodical, film,
          videotape, computer disk, or any other material that
          contains an image of child pornography that has been
          mailed, or shipped or transported using any means or
          facility of interstate or foreign commerce or in or
          affecting interstate or foreign commerce by any means,
          including by computer, or that was produced using
          materials that have been mailed, or shipped or trans-
          ported in or affecting interstate or foreign commerce by
          any means, including by computer; . . .
      shall be punished as provided in subsection (b).
6                                                No. 08-1953

    that had been mailed and shipped and transported in
    interstate and foreign commerce, including by com-
    puter.

  After his arraignment, Mr. Kincaid filed several pretrial
motions including a motion to dismiss the indictment
for failure to establish “the jurisdictional element,” i.e., a
sufficient connection to interstate commerce to confer
federal jurisdiction under the Commerce Clause. See R.24
at 1. Mr. Kincaid’s motion claimed that the only ap-
parent basis for federal jurisdiction was “the fact that a
single Polaroid camera recovered from the Defendant,
and alleged to have been employed by the Defendant to
create visual depictions for his own arousal, was
produced in China.” R.24 at 4. Mr. Kincaid maintained
that for this camera “to constitute the sole crux for the
federalization of the crimes charged call[ed] into question
fundamental principles of Federalism and Comity, and
constitut[ed] such an attenuated nexus with interstate
commerce that would likely leave . . . [the] Founding
Fathers ill at ease, to say the least.” 

  Subsequently, Mr. Kincaid and the Government
entered plea negotiations. At a hearing on June 27, 2007,
Mr. Kincaid waived his right to a jury trial, and the
parties agreed to a bench trial on the stipulated facts
detailed above. Mr. Kincaid’s Waiver of Jury Trial and
Stipulations for Bench Trial included the following state-
ment:
    2. As stated in open court, it is the intent of the
    parties that the defendant desires to waive his right
No. 08-1953                                             7

   to a trial by jury and proceed to a bench trial on only
   two issues. The first issue, relevant to Count One, is
   whether the child pornography produced by the
   defendant was produced using material that had
   been mailed, shipped, or transported in interstate or
   foreign commerce by any means. The second issue,
   relevant to Count Two, is whether the child pornogra-
   phy knowingly possessed by the defendant was
   produced using materials that had been mailed, or
   shipped or transported in interstate or foreign com-
   merce by any means.
R.31 at 1-2 (emphasis added). During the hearing, the
court confirmed that Mr. Kincaid was “reserving as set
forth in the stipulation only two issues.” Transcript of
June 27, 2007 Hearing at 18. The court further confirmed
that Mr. Kincaid understood the import of the stipula-
tions and that he had agreed to the stipulations
knowingly and voluntarily. See 

  Before the close of the hearing, Mr. Kincaid’s counsel
asked to withdraw all pending motions including the
motion to dismiss on jurisdictional grounds. 

The district court then engaged in the following colloquy
with Mr. Kincaid:
     THE COURT:        All right. Mr. Kincaid, do you un-
                       derstand that the motions your
                       attorneys filed previously are be-
                       ing withdrawn, so they won’t be
                       ruled upon because you’ve reached
                       this stipulation?
     MR. KINCAID: Yes, Your Honor.
8                                             No. 08-1953

      THE COURT:       You understand that?
      MR. KINCAID: Yes, Your Honor.
      THE COURT:       And is that agreeable with you?
      MR. KINCAID: Yes, Your Honor.
      THE COURT:       Okay. All pending motions are
                       withdrawn. . . .

the parties’ stipulations, the court found
Mr. Kincaid guilty on both counts of the indictment and
subsequently sentenced him to 360 months’ imprison-
ment. Mr. Kincaid timely appealed.


                            II
                       ANALYSIS
  On appeal, Mr. Kincaid challenges two aspects of his
conviction. First, he raises a constitutional challenge to
his convictions, namely that his crimes bear an insuf-
ficient nexus to interstate commerce to support federal
jurisdiction under the Commerce Clause. Second, he
maintains that the indictment did not apprise him ade-
quately of the allegations against him.


A. Interstate Commerce Challenge
  Before we address the merits of Mr. Kincaid’s Commerce
Clause challenge, we first must consider the Govern-
ment’s argument that this challenge has been waived.
No. 08-1953                                                  9

Mr. Kincaid maintains, however, that the constitutional
issue is “jurisdictional,” and, therefore, not subject to
waiver. We disagree.


                              1.
  At one time, there was support in our case law for the
proposition that a challenge to a statute on Commerce
Clause grounds, such as the one made by Mr. Kincaid here,
should be characterized as a challenge to the court’s
jurisdiction. In United States v. Stillwell, 

(7th
Cir. 1990), the defendants challenged their convictions
under the federal arson statute, 18 U.S.C. § 844(i), on
several grounds, including that: (1) “their convictions
should be reversed because [a] private residence did not
satisfy the arson statute’s requirement that the building
subject to the arson be ‘used in [an] . . . activity affecting
interstate . . . commerce,’ ” and (2) “if Congress did
intend the federal arson statute to reach a private
residence such as Stillwell’s, then Congress exceeded its
power under the commerce clause.” 

The
Government claimed that the second argument had
been waived for failure to raise the issue in the district
court. We disagreed and explained accordingly:
    While we agree that defendants did not raise this issue
    at the district court level, defendants may raise this
    issue on appeal because it is jurisdictional. If the
    application of § 844(i) to defendants exceeds Congress’
    power under the commerce clause, the district court
    could not exercise jurisdiction over the subject-matter
    contained in Count One . . . . Lack of subject-matter
10                                                  No. 08-1953

     jurisdiction, whether through statutory interpreta-
     tion or constitutional prescription, is never waived.

n.2.
  However, we revisited Stillwell a few years later in
United States v. Martin, 

(7th Cir. 1998). In
Martin, which involved a similar interstate commerce
question, we “acknowledge[d] that the language in foot-
note 2 of Stillwell is mistaken.” 

We explained:
     In Stillwell, the defendants had stipulated to certain
     facts regarding the house’s connections to interstate
     commerce, but argued on appeal that the connec-
     tions to which they had stipulated did not satisfy the
     interstate commerce element of the statute. The defen-
     dants in Stillwell, then, essentially argued that the
     indictment failed to state an offense. This argument
     was not presented to the district court but the defen-
     dants claimed that it might be raised for the first time
     on appeal. Today we explain by way of clarification
     that review by this court for plain error was appropri-
     ate in that case despite the defendants’ failure to
     raise the argument on appeal. See Fed. R. Crim. P.
     52(b); see also United States v. Quintanilla, 

,
     1476-77 (7th Cir. 1993). A challenge to the indictment
     based on the adequacy of the interstate commerce stipula-
     tion had no relation to subject matter jurisdiction—the
     power to adjudicate—but instead went only to an alleged
     failure of proof. See Bell v. Hood, 

, 680 (1946);
     see also Turner/Ozanne v. Hyman/Power, 

,
     1316-17 (7th Cir. 1997) (“Jurisdiction under the fed-
     eral question statute is not defeated by the possibility
No. 08-1953                                                11

    that the averments, upon close examination, might
    be determined not to state a cause of action.”).

parallel citations omitted). Recently,
in United States v. Lacey, No. 08-2515, 

(7th Cir. June 12, 2009), we affirmed the vitality of our
decision in Martin:
    [C]ontrary to Lacey’s contention, his attack on the
    evidence supporting the jurisdictional element of his
    § 2252A(a)(5)(B) conviction is not that type of juris-
    dictional challenge. A “jurisdictional element” is
    simply an element of a federal crime. It is jurisdictional
    “only in the shorthand sense that without that [inter-
    state commerce] nexus, there can be no federal
    crime. . . . It is not jurisdictional in the sense that it
    affects a court’s subject matter jurisdiction, i.e., a
    court’s constitutional or statutory power to
    adjudicate a case, here authorized by 18 U.S.C. § 3231.”
    United States v. Martin, 

, 532 (7th Cir. 1998)
    (internal citation omitted).
Lacey, 

, at *3. See generally Wisconsin Valley
Improvement Co. v. United States, No. 08-4300, slip op. at 4-5
(7th Cir. June 22, 2009) (discussing the misuse of the
term “jurisdictional” to describe any mandatory rule).
  Following our decisions in Martin and Lacey, therefore,
Mr. Kincaid’s claim that his crime bears an insufficient
nexus to interstate commerce is not a “jurisdictional” one.
Because it is not “jurisdictional” in nature, it may be
waived.
12                                               No. 08-1953

                              2.
  Having determined that the issue of the interstate
nexus is not jurisdictional, we must turn to the question
whether Mr. Kincaid, in fact, waived this argument
before the district court.
  The Supreme Court has explained, and we have echoed
on numerous occasions, that “[w]aiver is different from
forfeiture. Whereas forfeiture is the failure to make the
timely assertion of a right, waiver is the ‘intentional
relinquishment or abandonment of a known right.’ ”
United States v. Olano, 

, 733 (1993) (quoting
Johnson v. Zerbst, 

, 464 (1938)); accord United
States v. Cooper, 

, 415 (7th Cir. 2001). Thus, we
have held that a defendant waived his right to challenge
a sentencing calculation by initially objecting to the
calculation, but later withdrawing the objection. See
United States v. Sensmeier, 

, 986 (7th Cir. 2004).
Similarly, in Cooper, we held that a defendant had waived
his right to challenge the admissibility of the evidence
when defense counsel withdrew a motion in limine,
stated he did not have any objection to the admission of
the evidence and referred to the evidence during the
course of trial. See 

.
  The Fifth Circuit has held, under circumstances strik-
ingly similar to those presented here, that a withdrawal
of a motion challenging the sufficiency of an indictment
constitutes a waiver. In United States v. Davis, 306 F. App’x
102 (5th Cir. 2009), a defendant convicted of attempted
production of child pornography under 18 U.S.C. § 2251(a)
appealed his conviction. While in the district court, the
No. 08-1953                                             13

defendant had filed a motion to dismiss the indictment;
specifically, the motion challenged the court’s “lack of
jurisdiction because 18 U.S.C. § 2251(a) is unconstitu-
tional under the Commerce Clause.” 

4. On the
first day of trial, defense counsel advised the district
court that the parties had entered a stipulation re-
garding the interstate commerce aspect of the offense
and that the defendant was withdrawing his motion to
dismiss. However, on appeal, the defendant attempted
to challenge the district court’s denial of the motion. The
Fifth Circuit held that the issue had been waived: “Because
Davis raised this issue in the district court and subse-
quently withdrew the motion raising the issue, Davis
waived this issue, and it is unreviewable.” 

present case, the argument for waiver is even
more compelling. In the “Waiver of Jury Trial and Stipula-
tions for Bench Trial” that Mr. Kincaid filed with the
district court, he clearly indicated that there were only
two issues left for the court’s consideration—whether
the means of producing the child pornography in both
Count One and Count Two of the indictment had
traveled in interstate commerce. Furthermore, during the
June 27, 2008 hearing, both Mr. Kincaid and his counsel
confirmed to the court that these were the only issues
for the court’s consideration. Finally, Mr. Kincaid’s
counsel explicitly withdrew his constitutional challenge
to the indictment, and Mr. Kincaid stated in court that
he both agreed with, and understood the ramifications of,
counsel’s withdrawal of the motion. All of these actions
establish that Mr. Kincaid was aware that he could chal-
lenge the constitutionality of the indictment on Com-
14                                                   No. 08-1953

merce Clause grounds and that he made a conscious
decision not to press that argument. Because Mr. Kincaid
intentionally relinquished this known right, he has
waived his right to challenge the constitutionality of the
indictment in this court.4


B. Sufficiency of the Indictment
   Mr. Kincaid next submits that the indictment was
defective. Mr. Kincaid’s argument focuses on the fact that,
with respect to the interstate commerce element of the
offense, the statutes are worded in the disjunctive, but
the counts of the indictment are worded in the conjunctive.
For example, an individual violates 18 U.S.C. § 2251(a)
if the individual has produced child pornography and if
one of the following interstate commerce connections are
proven: (1) “such person knows . . . that such visual
depiction will be transported or transmitted using any
means or facility of interstate or foreign commerce . . . or
mailed,” (2) the “visual depiction was produced or trans-
mitted using materials that have been mailed, shipped, or
transported in or affecting interstate or foreign com-


4
  Mr. Kincaid responds that, regardless of his or his counsel’s
actions before the court, the district court addressed the consti-
tutional issue, and, therefore, this court also may resolve the
issue. Although the district court did determine that the factual
requisites for violations of the statutes had been shown by
the stipulated facts, nowhere in its opinion did the district court
raise, address or resolve the constitutional complaint that
Mr. Kincaid now lodges.
No. 08-1953                                                    15

merce by any means, including by computer,” or (3) “such
visual depiction has actually been transported or trans-
mitted using any means or facility of interstate or
foreign commerce or in or affecting interstate or foreign
commerce or mailed.” 18 U.S.C. § 2251(a). By contrast,
Count One of the indictment charged the interstate com-
merce elements in the conjunctive:
    On or about September 2004, . . .
                       PAUL KINCAID
    knowingly employed, used, persuaded, induced,
    enticed and coerced a person under the age of eighteen
    years, to engage in sexually explicit conduct . . . for the
    purpose of producing visual depictions of such con-
    duct, knowing or having reason to know that such
    visual depictions would be transported in interstate
    and foreign commerce and mailed, and said visual
    depictions having been produced using materials that
    had been mailed, shipped, and transported in inter-
    state and foreign commerce by any means, including
    by computer, and said visual depictions having actu-
    ally been transported in interstate and foreign com-
    merce and mailed.
      All in violation of title 18 United States Code,
    Section 2251(a).
R.11 at 1 (emphasis added).5 According to Mr. Kincaid, the
phrasing of the indictment lulled him into believing that


5
  Similarly, the language of Count Two is set forth in the
conjunctive, but the statute that is the basis for the indictment,
18 U.S.C. § 2252A(a)(5)(B), is set forth in the disjunctive.
16                                                No. 08-1953

the Government could not convict him of the charged
offense unless it proved all three of the interstate com-
merce elements. He claims that, “[b]ecause of these
flaws in the indictment, [he] was not put on notice of the
crimes charged and was prejudiced in preparing his
defense.” Appellant’s Br. 21.
  Mr. Kincaid’s argument is without merit. “The general
rule is that when a jury returns a guilty verdict on an
indictment charging several acts in the conjunctive, . . . the
verdict stands if the evidence is sufficient with respect
to any one of the acts charged.” United States v. Turner,

, 420 (1970). We consistently have applied
Turner in this circuit and have rejected claims of error
based on the use of the conjunctive in charging docu-
ments. See United States v. Cox, 

, 726-27 (7th Cir.
2008) (“We have held that ‘where a statute defines two
or more ways in which an offense may be committed, all
may be alleged in the conjunctive in one count.’ ” (internal
citations omitted)), cert. denied, 

(2008);
United States v. Moore, 

, 640 (7th Cir. 2004),
vacated on other grounds sub nom. Young & Jackson v.
United States, 

(2005); United States v. LeDonne,

, 1427 (7th Cir. 1994). The same is true in
other circuits. See 

(collecting cases).
  Mr. Kincaid acknowledges the holdings of Turner and
Cox, but argues that “neither case precludes the court
from conducting an analysis of whether or not a
defendant is actually prejudiced by a variance between
the indictment and the statute.” Reply Br. 3. Mr. Kincaid
claims that he was “actually prejudiced” by the language
No. 08-1953                                                        17

of the indictment because he prepared his defense based
on the belief that “the Government had to prove that
the depictions themselves traveled in interstate and
foreign commerce.” 

belies this claim. It is important to note
that Mr. Kincaid’s only complaint with the indictment
is that it differs from the statutory language in the use of
the conjunctive; the statute of conviction is correctly
identified in the indictment, the elements of the statute
are correctly set forth in the indictment, and the
stipulated facts support the elements of the indicted
offenses.6 Furthermore, the parties’ stipulations reveal
that Mr. Kincaid was aware that the Government was
attempting to prove the interstate commerce element
by establishing that the materials used to produce the
child pornography had traveled in interstate commerce.
Indeed, the questions reserved for the court’s resolution
are focused on whether the materials used in producing
the pornography have the requisite nexus to interstate
commerce. See R.31 at 1-2. Additionally, Mr. Kincaid
stated explicitly in his submission to the district court
that he was “not stipulat[ing]” that either “the visual
depictions created by him” or “the pornography
possessed by him w[ere] produced using materials that
had been mailed, or shipped or transported in interstate


6
  Thus, this is not a case of “constructive amendment”—where
“the evidence presented at trial . . . raises the possibility that the
defendant was convicted of an offense other than that charged
in the indictment.” Hunter v. State of New Mexico, 

, 599 (10th Cir. 1990) (internal quotation marks omitted).
18                                              No. 08-1953

or foreign commerce.” 

(emphasis in original). In
sum, the record reveals that Mr. Kincaid knew that the
Government was attempting to satisfy the interstate
commerce nexus by establishing that the materials used
to produce the pornography, as opposed to the pornog-
raphy itself, had traveled in interstate commerce. More-
over, Mr. Kincaid’s actions in contesting this issue
reveal that he understood that, if the Government
satisfied this burden, it had proven its case. Consequently,
we do not believe that the wording of the indictment
deprived Mr. Kincaid of the opportunity to prepare an
adequate defense.


                        Conclusion
 For the reasons set forth above, we affirm the judg-
ment of the district court.
                                                  A FFIRMED




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