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United States v. Kincaid

July 6, 2009

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
PAUL KINCAID, 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.

The opinion of the court was delivered by: Ripple, Circuit Judge.

ARGUED JANUARY 7, 2009

Before POSNER, RIPPLE and ROVNER, Circuit Judges.

After a bench trial, Paul Kincaid was convicted of one count of producing child pornography, 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.

I. BACKGROUND

A. Facts

In August 2006, police in Litchfield, Illinois, began investigating Mr. Kincaid for possible possession and production of child pornography. With the cooperation*fn1 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 obtained 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 discuss sexual matters." Id. at 9. 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." Id.

Mr. Kincaid informed the interviewing officers that "he had taken and preserved pictures of minor males naked and while engaged in sex acts." Id. Mr. Kincaid 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 exchange for showing Mr. Kincaid his genitals. Mr. Kincaid further admitted to having "a problem with teenage addiction-an obsessive attraction to boys 13-18." Id. at 10 (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." Id. at 11-12. 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.

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)*fn2 and possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). The indictment charged*fn3 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 depictions 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 that had been mailed and shipped and transported in interstate and foreign commerce, including by computer.

Id. (emphasis added).

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 apparent 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." Id. at 5.

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 ...


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