01-1368 U.S. v. Anderson

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“[W]hile we agree with Anderson that the indictment in the instant case is flawed, we do not find it is so deficient that it must now be set aside. Section 2252A(a)(5)(b) states that any person who ‘knowingly possesses . . . material that contains an image of child pornography . . . that was produced using materials that have been mailed, or shipped or transported in interstate or foreign commerce by any means, including a computer, shall be punished.’ 18 U.S.C. sec. 2252A(a)(5)(b) (emphasis added). Anderson is correct that the indictment should have charged that his hard drive actually produced the pornographic images, rather than stating only that the computer contained the images. However, we have consistently held that ‘in determining whether an essential element of the crime has been omitted from the indictment, courts will not insist that any particular word or phrase be used.’ United States v. Garcia-Geronimo, 663 F.2d 738, 742 (7th Cir. 1981); Smith, 223 F.3d at 572. Because we review indictments liberally at this stage in the proceedings, we do not find that the failure to reference the specific production of the pornographic images on the hard drive renders the indictment so deficient that it must now be set aside.

“Because Count One of the indictment stated that Anderson’s hard drive contained the pornographic images, it adequately set forth the elements of the intended crime. This notified Anderson of the particular conduct at issue, thereby enabling him to prepare his defense. See, e.g., Smith, 230 F.3d at 306. A reasonable review of the indictment would sufficiently inform Anderson of the nature of the charges filed against him. Accordingly, the constitutional mandates for an indictment were met.”

Affirmed.

Appeal from the United States District Court for the Western District of Wisconsin, Crabb, J., Bauer, J.