215 F.3d 257 (2nd Cir. 2000), 943, United States v Dauray

Docket Nº:943, Docket No. 99-1253
Citation:215 F.3d 257
Party Name:UNITED STATES OF AMERICA, Appellee, v. CHARLES R. DAURAY, Defendant Appellant.
Case Date:June 15, 2000
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 257

215 F.3d 257 (2nd Cir. 2000)

UNITED STATES OF AMERICA, Appellee,

v.

CHARLES R. DAURAY, Defendant Appellant.

No. 943, Docket No. 99-1253

United States Court of Appeals, Second Circuit

June 15, 2000

Argued: January 14, 2000

Appeal from the judgment of conviction entered in the United States District Court for the District of Connecticut (Arterton, J.) for possession, in violation of 18 U.S.C. §2252(a)(4)(B), of "matter," three or more in number, "which contain any visual depiction" of minors engaging in sexually explicit conduct. On appeal, the defendant argues that as a matter of law the individual pictures he was convicted of possessing are--and therefore do not "contain"--such visual depictions. Because the language of §2252(a)(4)(B) does not settle this point, even with the assistance of the ordinary tools of construction, we apply the rule of lenity to resolve the ambiguity in the defendant's favor.

The judgment of conviction is reversed.

Judge Katzmann dissents by separate opinion.

Page 258

PETER A. CLARK, Assistant United States Attorney, New Haven, CT (Stephen C. Robinson, United States Attorney for the District of Connecticut, on the brief), for Appellee.

GARY D. WEINBERGER, Assistant Federal Public Defender, Hartford, CT (Thomas G.

Page 259

Dennis, Federal Public Defender, on the brief), for Defendant-Appellant.

Before: WINTER, Chief Judge, JACOBS and KATZMANN, Circuit Judges.

JACOBS, Circuit Judge:

Defendant-appellant Charles Dauray was arrested in possession of pictures (or photocopies of pictures) cut from one or more magazines. He was convicted following a jury trial in the United States District Court for the District of Connecticut (Arterton, J.) of violating 18 U.S.C. §2252(a)(4)(B), which punishes the possession of (inter alia) "matter," three or more in number, "which contain any visual depiction" of minors engaging in sexually explicit conduct. On appeal from the judgment of conviction, Dauray argues that the wording of § 2252(a)(4)(B)--which has since been amended--is ambiguous as applied to possession of three or more pictures, and that the rule of lenity should therefore apply to resolve this ambiguity in his favor. We agree, reverse the conviction, and direct that the indictment be dismissed.

BACKGROUND

On May 13, 1994, an officer of the Connecticut Department of Environmental Protection approached Dauray's car in a state park and found Dauray in possession of thirteen unbound pictures of minors. The pictures were pieces of magazine pages and photocopies of those pages. On November 18, 1998, a federal grand jury returned a one-count indictment, charging Dauray with possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). The version of the statute then in force punished the possession of "3 or more books, magazines, periodicals, films, video tapes, or other matter" that have passed in interstate or foreign commerce and "which contain any visual depiction" showing (or produced by using) a minor engaged in sexually explicit conduct. 18 U.S.C. § 2252(a)(4)(B) (1994) (amended 1998) (emphases added). The statute defined "sexually explicit conduct" in part as "actual or simulated--lascivious exhibition of the genitals or pubic area of any person." § 2256(2)(E).

Dauray and the government stipulated at trial to the facts that bear upon this appeal. One stipulation provided that "[i] on or about May 13, 1994, Charles Dauray possessed the visual depictions which have been introduced into evidence . . . ; and [ii] Charles Dauray was aware of the contents of these visual depictions and thus he knew that genitalia of minors appear in each of them." A second stipulation was that the visual depictions were transported in interstate commerce. The jury therefore had only to decide whether the visual depictions showed "minor[s] engaging in sexually explicit conduct," i.e., whether they depicted the "lascivious exhibition of the genitals or pubic area." §§2252(a)(4)(B)(i), 2256(2)(E). The jury found Dauray guilty, and by special interrogatory specified the four of the thirteen pieces of evidence that met the statutory definition.

The district court then considered Dauray's pretrial motion, on which the court had earlier reserved decision, to dismiss the indictment for failure to charge an offense. See Fed. R. Crim. P. 12(b)(2). Dauray argued that each of the four pictures specified by the jury was in itself a "visual depiction" and therefore could not be "other matter which contain any visual depiction." Therefore, he reasoned, the indictment failed to charge an offense. The district court concluded that the pictures Dauray possessed were "other matter" within the plain meaning of §2252(a)(4)(B), and for the same reason denied Dauray's request to apply the rule of lenity. See United States v. Dauray, 76 F.Supp.2d 191, 195 (D. Conn. 1999).

Dauray was sentenced on April 30, 1999 to 36 months of imprisonment, followed by three years of supervised release, and a $50 special assessment.

Page 260

DISCUSSION

The statute under which Dauray was convicted has since been amended. At the time, the statute provided in pertinent part:

(a) Any person who--

(4) . . .

(B) knowingly possesses 3 or more books, magazines, periodicals, films, video tapes, or other matter which contain 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;

shall be punished as provided in subsection (b) of this section.

18 U.S.C. § 2252(a)(4)(B) (1994) (emphasis added).

The question presented on appeal is whether individual pictures are "other matter which contain any visual depiction" within the meaning of § 2252(a)(4)(B). This question of first impression is one of law, which we review de novo. See United States v. Alfonso, 143 F.3d 772, 775 (2d Cir. 1998). Notwithstanding diligent efforts to construe §2252(a)(4)(B), we conclude that it can be read either to support or to defeat this indictment. We therefore apply the rule of lenity to resolve the ambiguity in Dauray's favor.

I.

A. Plain Meaning.

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