United States Court of Appeals Fifth Circuit F I L E D March 26, 2003 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk __________________________

No. 02-20514 __________________________

UNITED STATES of AMERICA, Plaintiff-Appellee,

versus

3614 DOROTHY LANE PEARLAND, TEXAS also known as Lot 28 Block 11 Parkview Subdivision, Section 1, an Addition in Brazoria Texas,

Defendant, RAYMOND KLIESING,

Claimant-Appellant.

___________________________________________________

Appeal from the United States District Court For the Southern District of Texas (No. H-00-CV-2852) ___________________________________________________

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

The defendant property, 3614 Dorothy Lane, Pearland, Texas is a single family dwelling

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

1 owned by Raymond E. Kliesing (“Kliesing”), the claimant-appellant. Kliesing appeals the district

court’s judgment of forfeiture in favor of the United States in light of the Supreme Court’s ruling in

Ashcroft v. Free Speech Coalition,

(2002).

Kliesing and his minor son occupied the defendant property from April 1996 to November

1, 2000. For approximately 24 months prior to September 3, 1998, Kliesing used a desktop

computer located on the defendant property to download sexually explicit visual depictions of

children as young as age 8 from the Internet. Kliesing stored the images on zip disks, which he kept

in the bedroom and kitchen of the defendant property. The disks contained no fewer than 711

images.

A grand jury indicted Kliesing on 34 counts of possession of child pornography and one count

of receipt of approximately 350 depictions of minors engaging in sexually explicit conduct, in

violation of

and 2252A. Kliesing pled guilty to one count of possession of child

pornography and one count of receipt of approximately 350 visual depictions of minors engaging in

sexually explicit conduct. Kliesing stipulated in his plea agreement that he knew the sexually explicit

images to be of children as young as age 8, and that qualified medical doctors (pediatric

endocrinologists) had examined the images seized from him and determined that they depicted

children ranging from about age 4 to about age 14. Yet, in the portion of the plea agreement which

lists the items seized from Kliesing’s home, there is a note in marginalia, initialed by Kliesing, his

attorney and the Government’s attorney, which reads: “[n]ote that Kliesing denies that the images

were of children.”

The Government instituted a civil forfeiture suit against defendant property on August 18,

2000 pursuant to

(a)(2), which allows the Government to seize property “real or

2 personal, used or intended to be used to commit or to promote the commission of an offense” under

Chapter 109A, which addresses the sexual exploitation of children. The district court granted

summary judgment to the Government and entered a judgment of forfeiture in favor of the United

States.

Kliesing contends that the judgment of forfeiture should be set aside in light of the Supreme

Court’s ruling in Ashcroft v. Free Speech Coalition,

. In Ashcroft, the Court struck

down a portion of the Child Pornography Prevention Act,

et seq. The Court found

that §§ 2256(8)(B) and 2256(8)(D), which prohibited pornography using “virtual children”, were

unconstitutionally overbroad. Id. Kliesing contends that because the Government never specified

whether his offenses involved actual children, this Court should set aside the judgment of forfeiture.

“Supreme Court decisions apply retroactively and prospectively to all cases on direct appeal

whenever applied to the litigants before the Court.” Deffenbaugh-Williams v. Wal-Mart Stores, Inc.,

(5th Cir. 1999) (citing Harper v. Virginia Dep’t of Taxation,

(1993)). However, when law changes in an unanticipated way during an appeal, this Court will

generally remand the matter to the district court to give the parties the opportunity to present

evidence relevant to the new law.

The indictment and the plea agreement do not specify whether actual children were depicted

in the child pornography found on Kliesing’s zip disks. Consequently, we VACATE the district

court’s judgment and REMAND for further proceedings to determine whether the children depicted

were actual or virtual.

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