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



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.

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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.

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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.


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.

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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.


A. Plain Meaning.

Our starting point in statutory interpretation is the statute's plain meaning, if it has one. See United States v. Piervinanzi, 23 F.3d 670, 677 (2d Cir. 1994). Congress provided no definition of the terms "other matter" or "contain." We therefore consider the ordinary, common-sense meaning of the words. See Harris v. Sullivan, 968 F.2d 263, 265 (2d Cir. 1992).

Among the several dictionary definitions of the verb "to contain," Dauray presses one, and the government emphasizes another.

(i) "To contain" means "to have within: hold." Webster's Third New International Dictionary 491 (unabridged ed. 1981). Dauray argues that a picture is not a thing that contains itself. Thus in the natural meaning of the word, a pictorial magazine "contains" pictures, but it is at best redundant to say that a picture "contains" a picture.

(ii) "To contain" also means "to consist of wholly or in part: comprise; include," id., and the government argues that each underlying piece of paper is "matter" (as opposed perhaps to anti-matter) that contains the picture printed on it. It is also possible, applying this latter meaning, to say that each picture, composed of paper and ink, is matter that contains its imagery.

The district court assumed that Congress meant to employ both meanings. See Dauray, 76 F.Supp.2d at 194 ("The word 'contain' as used in the statute can mean both that items that enclose or hold visual depictions of minors engaged in sexually explicit conduct are included within the statute's ambit (such as a book), and that items that are comprised of such visual depictions are also included (such as a photograph)."). The district court thus recognized that one critical word of the statute lends itself to (at least) two meanings, only one of which can sustain the conviction, but then assumed, without resort to tools of construction, that the statutory language was drafted to support every meaning that would impose punishment. Resort to tools of construction is necessary in this case, however, to

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decide whether the language used gave adequate notice that this defendant's conduct was forbidden by this statute.

The plain meaning of another critical term--"other matter"--is also elusive. The dictionary defines "matter" as "the substance of which a physical object is composed." Webster's Third New International Dictionary 1394. Everything is more or less organized matter (as Napoleon observed). But Congress employed "matter" in a specific context, as the final, general term at the end of a list. We must "consider not only the bare meaning of the word but also its placement and purpose in the statutory scheme. '[T]he meaning of statutory language, plain or not, depends on context.'" Bailey v. United States, 516 U.S. 137, 145 (1995) (quoting Brown v. Gardner, 513 U.S. 115, 118 (1994)). Other courts have construed "other matter" in §2252(a)(4)(B) as "simply something which, at a minimum, must be capable of containing a visual depiction," United States v. Vig, 167 F.3d 443, 447 (8th Cir.), cert. denied, 120 S.Ct. 146, 314 (1999); accord United States v. Hall, 142 F.3d 988, 999 (7th Cir. 1998), or as "physical media on which are contained . . . images," United States v. McKelvey, 203 F.3d 66, 71 (1st Cir. 2000); accord United States v. Lacy, 119 F.3d 742, 748 (9th Cir. 1997). These...

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