United States v. Vig

While repairing a personal computer belonging to Tom Vig (defendant), a service manager saw images of children engaged in sexual activity. Tom admitted to a Federal Bureau of Investigation agent that he had downloaded pictures of nude children. Tom consented to the computer’s seizure and examination, and the agent confirmed that there were images of children engaged in sexual activity on two of the computer’s hard drives. Tom told the agent he had used a special program to access and search news groups on the Internet and had downloaded pictures of nude children. Tom’s son Donovan Vig (defendant) told the agent he too had accessed news groups and had seen pictures of nude children in these groups. Tom and Donovan were each convicted of violating 18 U.S.C. § 2252(a)(4)(B), which prohibited the possession of books, magazines, periodicals, films, videotapes, or other matter containing any visual depiction of a minor engaging in sexually explicit conduct and transported or made with materials transported in interstate commerce, including by computer. At trial, the government (plaintiff) presented the images found on the Vigs’ computer and the testimony of a professor who was a pediatrician with a specialty in child maltreatment. The doctor testified that at least one of the visual depictions in each of the 13 files upon which the charges were based, except one, was of a minor. The defense did not cross-examine the doctor or rebut his testimony with its own expert testimony. On appeal, Donovan argued that the district court erred in denying his motion for judgment of acquittal because the government did not present sufficient evidence showing that the subjects of the visual depictions were real minors. Donovan argued that the government was required to prove that the depictions were not computer-generated images that looked like real children.