U.S. v. Gendron

Decision Date06 October 1993
Docket NumberNo. 92-2003,92-2003
Citation18 F.3d 955
PartiesUNITED STATES, Appellee, v. Daniel A. GENDRON, Defendant, Appellant. . Heard
CourtU.S. Court of Appeals — First Circuit

Jonathan S. Sales, by Appointment of the Court, with whom The Law Office of William P. Homans, Jr., Cambridge, MA, was on brief, for appellant.

Robert E. Richardson, with whom A. John Pappalardo, United States Attorney, and James F. Lang, Assistant United States Attorney, Boston, MA, were on brief, for appellee.

Before BREYER, Chief Judge, BOUDIN, Circuit Judge, POLLAK, * Senior District Judge.

BREYER, Chief Judge.

Daniel Gendron ordered and received a videotape that contained child pornography. Though he did not know it, the firm that sent him the tape was part of a law enforcement operation designed to catch child pornography buyers. A jury subsequently convicted Gendron of knowingly receiving child pornography through the mails. 18 U.S.C. Sec. 2252(a)(2). He now appeals that conviction, claiming that the child pornography statute is unconstitutional, that the government unlawfully entrapped him, and that the government's search warrant (for the tape in his house) was constitutionally defective. After considering these and other related claims, we affirm the conviction.

I

The Statute's Constitutionality

The child pornography statute reads as follows:

(a) Any person who--

. . . . .

(2) knowingly receives, or distributes, any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, or knowingly reproduces any visual depiction for distribution in interstate or foreign commerce by any means including by computer or through the mails, if--

(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and

(B) such visual depiction is of such conduct;

. . . . .

shall be punished as provided in subsection (b)....

18 U.S.C. Sec. 2252(a)(2) (emphasis added). Gendron points out that the Ninth Circuit has interpreted this statute as permitting a conviction of a person who does not know the child-pornographic nature of the material received, and, for that reason, has found it unconstitutional. See United States v. X-Citement Video, 982 F.2d 1285 (9th Cir.1992), cert. granted, --- U.S. ----, 114 S.Ct. 1186, 127 L.Ed.2d 536 (1994). He says we should do the same.

The Ninth Circuit, 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), considered the scope of the statute's word "knowingly." It held that "knowingly" modifies only the statute's word "receives" (or "reproduces"), not its subclause (A) or (B). Consequently, it "does not require" that a defendant "knew that the pornography he ... received involved a minor." Id. at 1070. Two years later, in X-Citement Video, the Ninth Circuit pointed out that the statute, as so interpreted, would permit conviction of a person who "knowingly receives" a video, but does not know that the video contains child pornography. Because that interpretation would permit conviction of a person with an innocent state of mind, the court found the statute unconstitutional. X-Citement Video, 982 F.2d at 1292; see New York v. Ferber, 458 U.S. 747, 765, 102 S.Ct. 3348, 3359, 73 L.Ed.2d 1113 (1982) (child pornography statutes must involve "some element of scienter" to pass constitutional muster).

We do not accept the Ninth Circuit's conclusion that the statute is unconstitutional, however, because we do not agree with the statutory premise set forth in Thomas. In our view, and in the view of all courts to have considered the matter since the X-Citement Video decision, see United States v. Cochran, 17 F.3d 56 (3d Cir.1994); United States v. Edwards, No. 92-CR-884, 1993 WL 453461 (N.D.Ill. Nov. 4, 1993); United States v. Long, 831 F.Supp. 582 (W.D.Ky.1993); United States v. Kempton, 826 F.Supp. 386 (D.Kan.1993); United States v. Prytz, 822 F.Supp. 311 (D.S.C.1993), the statute's word "knowingly" modifies not only the word "receives," but also the statute's description of the "receive[d]" material's pornographic content. That is to say, we understand the statute to require for conviction that the government prove not only that the defendant "knowingly receive[d]" material that he knows contains a "visual depiction" of a person "engaging in sexually explicit conduct," but also that the defendant knows that the person so depicted is a minor. Accord Edwards, 1993 WL 453461 at * 5; Long, 831 F.Supp. at 586; Kempton, 826 F.Supp. at 389; Prytz, 822 F.Supp. at 321.

We concede that one cannot know automatically, simply from the position of the words in the sentence, just which of the words following "knowingly" the word "knowingly" is meant to modify. However, that linguistic fact simply reflects the more basic fact that statements, and parts of statements, quite often derive their meaning from context. The sentence "John knows that people speak Spanish in Tegucigalpa, which is the capital of Honduras," taken by itself, leaves us uncertain whether or not John knows that Tegucigalpa is the capital of Honduras; but, the context of the story in which the sentence appears, a context that includes other sentences, may clear up our uncertainty and leave us with no doubt at all.

Similarly, when courts interpret criminal statutes, they draw upon context, including the statute's purpose and various background legal principles, to determine which states of mind accompany which particular elements of the offense. Thus, courts normally hold that the prosecutor need not prove the defendant's state of mind in respect to "jurisdictional facts" (for example, that an assault victim was a federal officer, or that stolen checks moved in the mail ), whatever the mental state required for the crime's other elements. E.g., United States v. Feola, 420 U.S. 671, 676-86, 95 S.Ct. 1255, 1259-64, 43 L.Ed.2d 541 (1975); Barnes v. United States, 412 U.S. 837, 847, 93 S.Ct. 2357, 2363, 37 L.Ed.2d 380 (1973); United States v. Blassingame, 427 F.2d 329, 330 (2d Cir.1970), cert. denied, 402 U.S. 945, 91 S.Ct. 1629, 29 L.Ed.2d 114 (1971); see generally S.Rep. No. 307, 97th Cong., 1st Sess. 72-74 (1981). Context (what ordinarily counts as bad behavior; the reason why Congress mentions jurisdictional facts; etc.), in addition to the position of words in a sentence, helps a court decide how, and when, to interpret statutes as incorporating states of mind. See, e.g., Blassingame, 427 F.2d at 330.

The background context here includes the fact that, when a criminal statute is totally silent about state of mind (as is commonly the case), courts nonetheless assume that Congress intended to require some kind of guilty knowledge with respect to major wrong-creating elements of major crimes. Liparota v. United States, 471 U.S. 419, 426, 105 S.Ct. 2084, 2088, 85 L.Ed.2d 434 (1985) (courts should not read criminal statutes as "requiring no mens rea"); United States v. United States Gypsum Co., 438 U.S. 422, 438, 98 S.Ct. 2864, 2874, 57 L.Ed.2d 854 (1978) (in criminal statutes, "far more than the simple omission of the appropriate phrase from the statutory definition is necessary to justify dispensing with an intent requirement"); Morissette v. United States, 342 U.S. 246, 255-56, 263, 72 S.Ct. 240, 246, 249, 96 L.Ed. 288 (1952).

Thus, had the word "knowingly" not appeared at all in the child pornography statute, courts (while not insisting upon "knowledge" of the "interstate commerce" element of the offense, see supra p. 958) would have insisted nonetheless that prosecutors prove a guilty state of mind in respect to the nature of the material. For one thing, the fact that the material shows a child engaging in sexually explicit activity is not a secondary, or jurisdictional, aspect of the crime. It is the moral and criminal heart of the matter. For another thing, without such a requirement, the statute would severely punish purely innocent conduct. It would reach, for example, a post office employee who "knowingly distributes" mail but knows nothing of its contents, or a film developer who for some reason returns an undeveloped roll of film to a customer. Congress could not have intended these results. Pp. 959-960, infra; see United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981) (courts must construe statutes to avoid absurd results); United States v. Ferryman, 897 F.2d 584, 589 (1st Cir.1990) (same). Finally, as X-Citement Video itself demonstrates, to read this criminal statute as "requiring no mens rea" (contrary to Liparota, 471 U.S. at 426, 105 S.Ct. at 2088) likely makes it unconstitutional. See New York v. Ferber, 458 U.S. 747, 765, 102 S.Ct. 3348, 3359, 73 L.Ed.2d 1113 (1982) (criminalization of child pornography must involve "some element of scienter on the part of the defendant"); see also Osborne v. Ohio, 495 U.S. 103, 113 n. 9, 115, 110 S.Ct. 1691, 1698 n. 9, 1699, 109 L.Ed.2d 98 (1990) (same; "recklessness" suffices). Such an interpretation therefore violates courts' duty to interpret federal statutes so that they are consistent with the federal Constitution whenever possible. E.g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 1397, 99 L.Ed.2d 645 (1988).

If we would interpret a silent statute as imposing a guilty state of mind requirement, how could Congress's explicit use of the word "knowingly" eliminate it? It seems far more likely that Congress used the word "knowingly" to make clear that it did intend to insist that a defendant know the child-pornographic nature of the material. The legislative history confirms this view. For example, Senator Roth, the author of the amendment which extended the original bill to distribution as...

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