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Click here for the full text of this decision FACTS:The appellant appeals the district court’s order on remand to consider the impact of Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). The district court held that the general verdict finding the appellant guilty of two counts of possession of child pornography was based on the validated portions of the Child Pornography Act of 1996 and that the evidence was sufficient to support a finding that the images downloaded by the appellant were images of real children. HOLDING:Affirmed. Free Speech Coalition did not establish a broad requirement that the government must present expert testimony to establish that the unlawful image depicts a real child. Three circuits that have considered this issue take the same position. “Juries are still capable of distinguishing between real and virtual images; and admissibility remains within the province of the sound discretion of the trial judge.” United States v. Kimler, 335 F.3d 1132 (10th Cir.), cert. denied, 72 U.S.L.W. 3392 (U.S. Dec. 8, 2003)(No. 03-7285). Therefore, the government was not required to present any additional evidence or expert testimony to meet its burden of proof to show that the images downloaded by the appellant depicted real children, and not virtual children. The district court, as the trier of fact in this case, was capable of reviewing the evidence to determine whether the government met its burden to show that the images depicted real children. The appellant argues that the district court erred in denying his motion to correct the written judgment to strike the conditions that the district court did not orally pronounce at sentencing pursuant to Federal Rule of Criminal Procedure 36. Rule 36 provides that “the court may at any time correct a clerical error in a judgment, order, or other part of the record, or correct an error in the record arising from oversight or omission.” The appellant has not shown that the discrepancy between the orally imposed sentence and the written judgment is a clerical mistake or oversight which the district court may correct pursuant to Rule 36. Therefore, he has not shown that the district court erred in denying his Rule 36 motion. OPINION:Per curiam.

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