United States of America, Plaintiff-appellee, v. Jerry Ted Brown, Defendant-appellant, 25 F.3d 307 (6th Cir. 1994)

Defendant Jerry Ted Brown appeals the district court's denial of his motion to dismiss the indictment charging him with receiving child pornography. He argues that the indictment should have been dismissed on the ground that the statute criminalizing the receipt of child pornography, 18 U.S.C. § 2252(a) (2), is unconstitutional because it lacks the necessary scienter element. For the reasons stated herein, we affirm the decision of the district court.

On July 1, 1992, authorities searched the residence of Michael Carr in Los Angeles, California. Carr, doing business as "Lifestyles," was distributing pornography from his home. Among other items, the search turned up a letter from defendant Brown in Decaturville, Tennessee. The letter referred to a pornographic video tape that Brown had recently purchased from "Lifestyles."

A Los Angeles Police Department undercover officer ("Gary") initiated correspondence with Brown. In a series of letters during July and August 1992, Brown discussed his interest in child pornography and Gary relayed that he was selling videos and magazines featuring girls ten to fourteen years old. Ultimately, Brown ordered from Gary ten photos of a nude twelve-year-old girl in lewd and lascivious poses. The photos were mailed to him through the U.S. mail, and he received them in a controlled delivery in September 1992. Brown was subsequently indicted on one count of knowingly receiving visual depictions through the mail which involved a minor¹  engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a) (2).

On January 27, 1993, Brown filed a motion to dismiss the indictment. Brown based his motion on the decision in United States v. X-Citement Video, Inc., 982 F.2d 1285, 1292 (9th Cir. 1992), cert. granted, --- U.S. ----, 114 S. Ct. 1186, 127 L. Ed. 2d 536 (1994), which found 18 U.S.C. § 2252 unconstitutional because the statute lacks a scienter requirement. The district court denied Brown's motion, finding that "the language of Sec. 2252 clearly imposes a scienter element as to the nature of the proscribed visual depictions." Subsequently, Brown entered into a conditional plea agreement with the government, pleading guilty on the condition that he be allowed to retain the right to appeal the district court's denial of his motion to dismiss. Brown did not deny that he knowingly received child pornography through the mail. On April 28, 1993, the court sentenced Brown to eighteen months incarceration²  and two years supervised release.

Brown's argument as to the unconstitutionality of 18 U.S.C. § 2252(a) (2) presents a matter of first impression for this circuit. We review this question of law de novo. United States v. Knipp, 963 F.2d 839, 842 (6th Cir. 1992).

Section 2252 provides, in part, that

(a) Any person who--

(2) knowingly receives, or distributes any visual depiction that has been transported or shipped in interstate or foreign commerce or mailed ... if

(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (B) such visual depiction is of such conduct....

* * * * * *

(b) ... shall be fined ... or imprisoned not more than ten years, or both....

This provision reflects a public policy aimed at eliminating the abuse and exploitation of children inherent in the production and distribution of child pornography. See New York v. Ferber, 458 U.S. 747, 757-59, 102 S. Ct. 3348, 3354-56, 73 L. Ed. 2d 1113 (1982). Because determining the source of child pornography is often difficult, if not impossible, 18 U.S.C. § 2252(a) (2) seeks to battle child pornography by curtailing demand.

Whenever a statute seeks to regulate speech, "the hazard of self-censorship of constitutionally protected material," Mishkin v. New York, 383 U.S. 502, 511, 86 S. Ct. 958, 965, 16 L. Ed. 2d 56 (1966), must be avoided. While non-obscene adult pornography is protected speech, child pornography need not be obscene to be regulated. As a result, in certain instances, the only factor separating what would otherwise be protected speech from unprotected child pornography is the minority of the persons depicted. Therefore, " [a]s with [adult] obscenity laws, criminal responsibility [under child pornography laws] may not be imposed without some element of scienter on the part of the defendant," Ferber, 458 U.S. at 765, 102 S. Ct. at 3358, and this knowledge must be as to the character of the materials in question. Otherwise, the risk exists that protected speech will be inadvertently swept into the scope of the statute, producing a chilling effect. See United States v. United States Dist. Court for the Cent. Dist. of California, 858 F.2d 534, 538 (9th Cir. 1988).

We begin our inquiry with the language of the statute. See United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241, 109 S. Ct. 1026, 1030, 103 L. Ed. 2d 290 (1989). Section 2252(a) (2) refers to the knowing receipt of child pornography. Brown contends that the word "knowingly" in this provision only modifies "receives" and "distributes" and does not indicate any knowledge requirement as to the nature of the works received or distributed. We reject Brown's construction of Sec. 2252(a) (2) and, instead, read "knowingly" to apply not only to "receives" and "distributes" but also to the "visual depiction" involved.³  Accordingly, we find Sec. 2252(a) (2) constitutional in that the statute includes a scienter requirement as to the nature and character of the proscribed materials.

In our understanding of Sec. 2252(a) (2), we are guided by the principle that we should interpret statutes to avoid constitutional problems whenever possible. Edward J. DeBartolo Corp. v. Florida Gulf Coast Building and Construction Trades Council, 485 U.S. 568, 575, 108 S. Ct. 1392, 1397-98, 99 L. Ed. 2d 645 (1988). Furthermore, our reading of the statute avoids the unreasonable and absurd result of imposing liability on unwary individuals such as the person who mistakenly receives child pornography in the mail or the merchant who sells materials containing child pornography without any knowledge of the contents. See United States v. Turkette, 452 U.S. 576, 580, 101 S. Ct. 2524, 2527, 69 L. Ed. 2d 246 (1981) (when interpreting a statute, "absurd results are to be avoided"); United States v. Blackmon, 914 F.2d 786, 789 (6th Cir. 1990) (same).

While the Supreme Court has yet to address the issue raised here, our understanding of Sec. 2252(a) (2) is consistent with the Court's interpretation of a similarly phrased statute, 18 U.S.C. § 1461. See Hamling v. United States, 418 U.S. 87, 122-23, 94 S. Ct. 2887, 2910-11, 41 L. Ed. 2d 590 (1974). Section 1461 concerns the mailing of obscene materials and refers to an individual who "knowingly uses the mails for the mailing, carriage in the mails, or delivery of [obscene materials]." The Court has read this language as including a requirement of knowledge of the general character and nature of the materials involved. Id. at 123, 94 S. Ct. at 2910.

Our reading of Sec. 2252 is also guided by the legislative history of Sec. 2252 which reveals Congress's intent to require that a recipient know that he is receiving child pornography. An exchange between Senator Roth, the sponsor of the amendment which became Sec. 2252, and Senator Percy reveals that Sec. 2252 was not designed as a trap for the unwary. 123 Cong.Rec. S33050 (1977). See also United States v. Osborne, 935 F.2d 32, 34 n. 2 (4th Cir. 1991) (purpose of "knowingly received" language is to protect those who receive child pornography by accident). In discussing Sec. 2252(a) (2), Senator Percy inquired as to whether the "knowingly" requirement meant that

[T]he distributor or seller must have [either] first, actual knowledge that the materials do contain child pornographic depictions or, second, circumstances must be such that he should have had such actual knowledge.

123 Cong.Rec. S33050. Senator Roth responded that Senator Percy was correct:

[T]he phrase "knowingly" insures that only those sellers and distributors who are consciously and deliberately engaged in the marketing of child pornography ... are subject to prosecution....

Id.

Though these statements dealt specifically with the distribution of child pornography, there is nothing to suggest that these remarks do not have equal application to the receipt of child pornography, as the statute punishes one who "knowingly receives, or distributes " child pornography, 18 U.S.C. § 2252(a) (2) (emphasis added). The colloquy between Senators Roth and Percy clearly evidences a legislative intent to reach only those individuals who receive or distribute material with the knowledge that the material is child pornography.

Finally, in concluding that Sec. 2252(a) (2) incorporates a scienter requirement as to the character of the materials involved, we join the majority of the courts of appeals that have addressed the constitutionality of Sec. 2252 and the sufficiency of the statute's knowledge requirement. The First, Second, Third, Fifth, and Ninth Circuits have dealt with this question, and, except for the Ninth Circuit's X-Citement Video decision, which we discuss below, all of the circuits have found that Sec. 2252 includes the requisite scienter element and is, therefore, constitutional. See United States v. Gendron, 18 F.3d 955, 960 (1st Cir. 1994); United States v. Gifford, 17 F.3d 462, 472-73 (1st Cir. 1994); United States v. Colavito, 19 F.3d 69, 71 (2d Cir. 1994); United States v. Cochran, 17 F.3d 56, 59-60 (3d Cir. 1994); United States v. Burian, 19 F.3d 188, 191 (5th Cir. 1994).

To support his constitutional challenge to Sec. 2252, Brown relies on the decision in X-Citement Video, 982 F.2d 1285. In X-Citement Video, the Ninth Circuit found that, while the First Amendment requires a scienter element for a Sec. 2252 violation, Sec. 2252(a) (2) did not include such a knowledge requirement. Id. at 1291-92. The court, therefore, held that the statute was unconstitutional. Id. at 1292. The X-Citement Video holding is premised on the Ninth Circuit's earlier decision in United States v. Thomas, 893 F.2d 1066 (9th Cir.), cert. denied, 498 U.S. 826, 111 S. Ct. 80, 112 L. Ed. 2d 53 (1990). In Thomas the defendant challenged the sufficiency of his indictment for transporting and receiving child pornography in violation of Secs. 2252(a) (1) and 2252(a) (2) because the indictment failed to allege that he knew that the pornography involved depicted a minor. Id. at 1069. The court held that under Sec. 2252(a) the government was not required to allege that the defendant had any knowledge of the contents of the material. Id. at 1070. Specifically, the court stated that

In subsection 1, "knowingly" modifies only "transports or ships." In subsection 2, "knowingly" modifies only "receives." [Section 2252(a),] therefore, does not require that Thomas knew that the pornography he transported, mailed, and received involved a minor. The section requires only that Thomas knowingly transported and received the material.

Id. at 1070. Though the decision in Thomas was rendered in an entirely different context and did not even address the constitutionality of Sec. 2252(a), the court in X-Citement Video considered itself bound by Thomas. X-Citement Video, 982 F.2d at 1290.⁴ 

We find Brown's reliance on X-Citement Video misplaced. The X-Citement Video opinion takes an overly literal and narrowly grammatical view of Sec. 2252(a) and raises a constitutional question where such an issue can (and should) be avoided. See Edward J. DeBartolo Corp., 485 U.S. at 575, 108 S. Ct. at 1397-98 ("The courts will therefore not lightly assume that Congress intended to infringe constitutionally protected liberties or usurp power constitutionally forbidden it."). See also United States v. Long, 831 F. Supp. 582, 586 (W.D. Ky. 1993). Additionally, any persuasive effect of X-Citement Video is greatly diminished by the Ninth Circuit's reliance on the binding effect of Thomas. See X-Citement Video, 982 F.2d at 1290 and 1292. Unlike the court in X-Citement Video, we have no Thomas-like precedent that controls our understanding of the statute.

As mentioned above, the position set out in X-Citement Video reflects a minority position. See Gifford, 17 F.3d at 472 ("The X-Citement Video opinion is something of a pariah."). In fact, no other court has followed X-Citement Video 's lead in finding Sec. 2252(a) (2) unconstitutional. Those courts that have addressed the constitutionality of Sec. 2252(a) (2) have explicitly rejected the reasoning and the holding in X-Citement Video and have taken--as we do today--the view that Sec. 2252(a) (2) includes a knowledge requirement as to the nature of the materials received or distributed. See Gendron, 18 F.3d at 960; Gifford, 17 F.3d at 472; Colavito, 19 F.3d at 71; Cochran, 17 F.3d at 60; Burian, 19 F.3d at 191; Long, 831 F. Supp. 582; United States v. Prytz, 822 F. Supp. 311 (D.S.C. 1993); United States v. Kempton, 826 F. Supp. 386 (D. Kan. 1993); United States v. Edwards, No. 92 CR 884, 1993 WL 453461, 1993 U.S. Dist. LEXIS 15658 (N.D. Ill. Nov. 4, 1993). Additionally, other decisions that have dealt with Sec. 2252(a) without addressing its constitutionality have recognized that the provision includes a requirement that a defendant be aware that the materials involved constitute child pornography. See United States v. Duncan, 896 F.2d 271, 277-78 (7th Cir. 1990) (presumes that Sec. 2252(a) requires that defendant knew that he was receiving child pornography); United States v. Brown, 862 F.2d 1033, 1036 (3d Cir. 1988) (same); United States v. Marchant, 803 F.2d 174, 177 (5th Cir. 1986) (same); United States v. Garot, 801 F.2d 1241, 1247 (10th Cir. 1986) (same); Osborne, 935 F.2d at 34 n. 2 ("knowingly received" language in Sec. 2252(a) (2) is intended to protect those who have received child pornography by accident).

In conclusion, we reject the reasoning of X-Citement Video, and hold that the knowledge element contained in Sec. 2252(a) (2) goes beyond the mere receipt to the nature of the work received. Therefore, finding no constitutional infirmity with the statute, the decision of the district court is hereby AFFIRMED.