Opinion
No. CR99-0020
April 28, 1999.
REPORT AND RECOMMENDATION
This matter comes before the court pursuant to defendant's March 19, 1999 motion to dismiss (docket number 13). This matter was referred to the undersigned United States Magistrate Judge for the issuance of a report and recommendation. For the reasons set forth below, it is recommended that defendant's motion be denied.
The defendant in this case, Roland D. Thomson is charged in a one-count indictment with violating 18 U.S.C. § 2252(a)(4)(B). Section 2252(a)(4)(B) makes it unlawful for a person to:
Throughout his motion and brief, the defendant makes repeated reference to 18 U.S.C. § 2252A(a)(5)(B). However, because the indictment filed on February 18, 1999 charges the defendant with violating 18 U.S.C. § 2252(a)(4)(B), the court will proceed to evaluate the defendant's arguments as they pertain to § 2252(a)(4)(B).
knowingly possess 3 or more books, magazines, periodicals, films, video tapes, or other matter which contain[s] any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which was produced using materials which have been mailed or so shipped or transported, by any means including by computer, if —
(i) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
(ii) such visual depiction is of such conduct
18 U.S.C. § 2252(a)(4)(B)(i)(ii) (1998).
The defendant argues that the charge pending against him should be dismissed for three reasons. First, the defendant claims that 18 U.S.C. § 2252(a)(4)(B) is unconstitutional, both facially and as applied to him. Specifically, the defendant claims that § 2252(a)(4)(B) is unconstitutionally vague, impermissibly overbroad so as to violate the First Amendment, fails to provide "fair notice" so as to violate the due process clause of the Fifth Amendment, and is beyond Congress' authority under the commerce clause. Second, the defendant claims that the application of § 2252(a)(4)(B) unlawfully intrudes upon the traditional police powers of State of Iowa and the Iowa child pornography laws. Finally, the defendant contends that he cannot be convicted under § 2252(a)(4)(B) unless the government proves that he knew that the materials at issue traveled in the mail or in interstate commerce, and he knew the sexually explicit nature of the material.
Constitutionality of 18 U.S.C. § 2252(a)(4)(B) Overbreadth Doctrine
Defendant claims that the statutory element of § 2252(a)(4)(B) is unconstitutionally overbroad both facially and as applied to him because the statute will operate to make the possession of lawful images unlawful. Defendant argues that § 2252(a)(4)(B) is overbroad in that it "sweeps under its purview both protected and unprotected speech." Defendant emphasizes that the children depicted in the images were not naked nor depicted as being engaged in a sex act. Therefore, the defendant contends that the "depictions are not the type of images which invoke the federal government's interest to protect the children from exploitation and harm by means of criminal legislation."
As stated above, § 2252(a)(4)(B) makes it unlawful for a person to:
knowingly possess 3 or more books, magazines, periodicals, films, video tapes, or other matter which contain[s] any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which was produced using materials which have been mailed or so shipped or transported, by any means including by computer, if —
(i) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
(ii) such visual depiction is of such conduct
18 U.S.C. § 2252(a)(4)(B)(i)(ii) (1998). "Sexually explicit conduct" has been defined to include the actual or simulated "lascivious exhibition of the genitals or pubic area of any person." 18 U.S.C. § 2256(2)(E) (1998). "Child pornography" is defined as including any visual depiction of a minor engaging in or appearing to engage in "sexually explicit conduct." 18 U.S.C. § 2256(8).
The Third Circuit Court of Appeals has thoroughly evaluated whether nudity is a prerequisite for a depiction to constitute a "lascivious exhibition of the genitals or public area" under the federal child pornography laws as codified at 18 U.S.C. § 2252 and 2256. U.S. v. Knox, 32 F.3d 733 (3d Cir. 1994), cert denied, 513 U.S. 1109, 115 S. Ct. 897, 130 L. Ed. 2d 782 (1995). At issue in Knox were films depicting several 10 to 17 year-old girls wearing tight, abbreviated articles of clothing. Id. at 737. Throughout these films "the photographer would zoom in on the children's pubic and genital area and display a close-up view for an extended period of time." Id. None of the girls were filmed in the nude. Id. The defendant in Knox argued that an "exhibition" required that a minor's genitals or public area be unclad and fully exposed to the camera. Id. at 744. The Third Circuit disagreed and held that "nudity or discernibility [sic] are not prerequisites for the occurrence of an exhibition within the meaning of the federal child pornography statute." Id. at 746. "When interpreting a statute, the starting point is always the language of the statute itself." Id. at 744 (citing American Tobacco Co. v. Patterson, 456 U.S. 63, 68, 102 S. Ct. 1534, 1537, 71 L. Ed. 2d 748 (1982)). Like the defendant in Knox, Thomson is trying to read a nudity requirement into a statute which has none. Therefore, the lack of a nudity requirement when interpreting "exhibition of the genitals or pubic area," however, does not render 18 U.S.C. § 2252 and 2256 unconstitutionally overbroad as applied to Thomson.
The Third Circuit's holding and interpretation of 18 U.S.C. § 2252 and 2256 was confirmed by Section 160003 of Pub.L. 103-122, which provides, in relevant part: "the scope of `exhibition of the genitals or pubic area' in section 2256(E), in the definition of 'sexually explicit conduct', is not limited to nude exhibitions or exhibitions in which the outlines of those areas were discernible through clothing . . . ."
"The function of the First Amendment is to prevent broadly worded statutes which control constitutionally unprotected conduct from deterring constitutionally protected expression." Knox, 32 F.3d at 752. The United States Supreme Court has repeatedly analyzed the overbreadth doctrine in the context of child pornography laws and has recognized that "striking down a statute on its face at the request of one whose own conduct may be punished despite the First Amendment" is "strong medicine" to be employed with hesitation, and then "only as a last resort." See New York v. Ferber, 458 U.S. 747, 769, 102 S. Ct. 3348, 3361 (1982) (holding that New York child pornography law is not unconstitutionally overbroad as forbidding the distribution of material with serious literary, scientific, or educational value); Osborne v. Ohio, 495 U.S. 103, 103-104, 110 S. Ct. 1691, 1693 (1989) (holding that the Ohio statute prohibiting the possession and viewing of child pornography is not constitutionally overbroad). Therefore, before a child pornography statute will be declared unconstitutional, the overbreadth must "not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S. Ct. 2908, 2918 (1973). In Knox, the Third Circuit also rejected the defendant's contention that 18 U.S.C. § 2252 and 2256 are facially overbroad. Knox, 32 F.3d at 752. Whether or not the child is naked, a visual depiction of the subject's genitals or pubic area must be "lascivious" in order to be proscribed, and whether the depiction is "lascivious" will be determined on a case-by-case basis. Id. This court agrees and finds that the statutes are not facially overbroad in violation of the First Amendment.
Vagueness Due Process
The defendant also argues that the term "exhibition of the genitals or pubic area" is unconstitutionally vague. The defendant claims that because Iowa law does not view depictions of clothed areas of a minor's anatomy as "child pornography," a federal statute that does is unconstitutional. The court disagrees.
The Due Process Clause of the Fifth Amendment has been interpreted to require that a criminal statute "define the offense well enough to let ordinary people know what is prohibited" and to avoid arbitrary and discriminatory enforcement. Kolender v. Lawson, 461 U.S. 352, 357 (1983); U.S. v. Whiting, 165 F.3d 631, 634 (8th Cir. 1999). The Constitution requires that the language of the statute 'convey sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. . . ." United States v. Freeman, 808 F.2d 1290, 1292 (8th Cir. 1987), cert denied, 480 U.S. 922, 107 S. Ct. 1384, 94 L. Ed. 2d 697 (1987) (quoting United States v. Petrillo, 332 U.S. 1, 7-8, 67 S. Ct. 1538, 1541-42, 91 L. Ed. 1877 (1947)). "The Supreme Court has consistently held that lack of precision, alone, does not violate due process." Id., (citing Roth v. United States, 354 U.S. 476, 491, 77 S. Ct. 1304, 1312, 1 L. Ed. 2d 1498 (1957)).
The court fails to see how an ordinary man of reasonable intelligence, guided by common understanding and practice, could not be on notice that taking pictures of young girls posed in compromising positions, focused closely on their pubic area, sometimes with their underwear showing, was illegal. As noted above, there is no nudity requirement found in the plain language of the statute, and a subsequent public law makes it clear that Congress intended no nudity or discernability requirement. Therefore, defendant's argument interpreting 18 U.S.C. § 2252 to include clothed areas would be unexpected and come without warning is unconvincing to say the least. Section 18 U.S.C. § 2252 is not void for vagueness.
Commerce Clause
Finally, defendant argues that Congress exceeded its authority under the Commerce Clause in enacting 18 U.S.C. § 2252, absent a case-by-case inquiry whether the particular actions of the defendant affected interstate commerce or the mail. In light of the fact that the Eighth Circuit Court of Appeals decided over a year ago that § 2252(a)(4)(B) is a proper exercise of Congress' power to regulate activities that substantially affect interstate commerce, suffice it to say that defendant's argument lacks merit. See United States v. Bausch, 140 F.3d 739, 741 (8th Cir. 1998), cert denied, 119 S. Ct. 806, 142 L. Ed. 2d 667 (1999). "The statute contains an express jurisdictional element requiring the transport in interstate or foreign commerce of the visual depictions or the materials used to produce them." Id. Therefore, "the statute ensures, through a case-by-case inquiry, that defendant's pornography possession affected interstate commerce." Id. See also United States v. Robinson, 137 F.3d 652 (1st Cir. 1998) (same).
Police Powers of Iowa
The defendant claims that the application of § 2252(a)(4)(B) unlawfully intrudes upon the traditional police powers of State of Iowa and the Iowa child pornography laws. The defendant argues that the Iowa law regulating child pornography (Iowa Code Chapter 728), which, according to the defendant, "refuses to make photographs of clothed minors into child pornography" is nullified by 18 U.S.C. § 2252. Once again, the court disagrees. The United States Supreme Court disagrees also. "[A] State's right not to regulate in the obscenity field cannot correlatively compel the Federal Government to allow the mails to be used to sent obscene materials into that State." Smith v. United States, 431 U.S. 291, 292 97 S. Ct. 1756, 1759 (1977) (holding that a the state law of Iowa "regulating distribution of obscene material cannot define contemporary community standards"). In light of this binding and readily available precedent, defendant's argument must fail.
Knowledge of Interstate Commerce Element
The defendant claims that he cannot be convicted under § 2252(a)(4)(B) unless the government proves that he knew that the materials at issue traveled in the mail or in interstate commerce, and he knew the sexually explicit nature of the material. On this point, the court agrees in part and disagrees in part.
Again, the Supreme Court has made it clear that the term "knowingly" as found in § 2252 applies to the requirement that the depiction be of sexually explicit conduct. United States v. X-Citement Video, 513 U.S. 64, 77, 115 S. Ct. 464, 471 (1994). However, the Supreme Court has also held that knowledge requirements do not apply to "jurisdictional facts." United States v. Feola, 420 U.S. 671, 95 S. Ct. 1255, 43 L. Ed. 2d 541 (1975) (holding that statute prohibiting assault against federal officers did not require that assailant be aware that the victim was a federal officer). See also Robinson, 137 F.3d 652, 655 (1st Cir. 1998) (rejecting defendant's contention that the government has to prove that he had actual knowledge of the jurisdictional element of § 2252(a)(4)(B)). Therefore, Thomson's claim that the government must prove his knowledge of the jurisdictional element of § 2252(a)(4)(B) is without merit.
Upon the foregoing,
IT IS RECOMMENDED that, unless any party files objections to the Report and Recommendation in accordance with 28 U.S.C. § 636 (b)(1)(C) and Fed.R.Civ.P. 72(b) within ten (10) days of the service of a copy of this report and recommendation, defendant's motion to dismiss be denied.
Objections must specify the parts of the report and recommendation to which objections are made. Objections also must specify the parts of the record, including exhibits and transcript lines, which form the basis for such objections. See Fed.R.Civ.P . 72. Failure to file timely objections may result in waiver of the right to appeal questions of fact. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).