This case, United States of America v. Gary Scott Whiting, was heard before the United States Court of Appeals for the Eighth Circuit. The appellant, Gary Scott Whiting, was appealing his conviction for possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). Whiting argued that pictures stored on computer disks were not proscribed by the law at the time he possessed them.
The facts of the case were not in dispute. Whiting was found to have stored images depicting minors engaging in sexually explicit conduct on computer disks while working for the Piedmont fire department. Whiting admitted to knowingly possessing the disks and the images on them, and that they had been transported in interstate commerce through the use of a computer.
Whiting’s appeal hinged on two arguments. First, he claimed that the application of the amended definition of “visual depiction” in the law, which now includes data stored on computer disk, to conduct that occurred before its enactment violates the ex post facto clause of the Constitution. Secondly, he argued that the law, prior to the amendment, was vague and that a conviction under the old statutory definition violated the Due Process Clause of the Fifth Amendment.
The court disagreed with both of Whiting’s arguments. They found that the term “visual depiction” as it was used in the statute prior to the amendment was broad enough to encompass image data stored on computer disks. They further stated that even before the amendment, the statute made it clear that images stored as data were “visual depictions” because Congress had expressly included a mode of interstate transportation unique to computer data.
The court also dismissed Whiting’s due process challenge, stating that the statute clearly provided notice that Whiting’s conduct was prohibited. The court affirmed the judgment of the district court, upholding Whiting’s conviction for possession of child pornography.