231 F.3d 912 (4th Cir. 2000), 99-4813, United States v. Mento

Docket Nº:99-4813.
Citation:231 F.3d 912
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSEPH H. MENTO, III, Defendant-Appellant. AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION OF THE NATIONAL CAPITOL AREA; AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Amici Curiae.
Case Date:November 03, 2000
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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231 F.3d 912 (4th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

JOSEPH H. MENTO, III, Defendant-Appellant.

AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION OF THE NATIONAL CAPITOL AREA; AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Amici Curiae.

No. 99-4813.

United States Court of Appeals, Fourth Circuit

November 3, 2000

Argued: June 9, 2000.

Appeal from the United States District Court for the District of Maryland, at Baltimore.

Andre M. Davis, District Judge. (CR-98-70)

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COUNSEL ARGUED: Alan Royce Lee Bussard, Towson, Maryland, for Appellant. Joseph Lee Evans, Assistant United States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: Lynne A. Battaglia, United States Attorney, Baltimore, Maryland, for Appellee. Dwight H. Sullivan, AMERICAN CIVIL LIBERTIES UNION OF MARYLAND, Baltimore, Maryland; Ann Beeson, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York; Arthur B. Spitzer, Stephen M. Block, AMERICAN CIVIL LIBERTIES UNION OF THE NATIONAL CAPITAL AREA, Washington, D.C., for Amici Curiae.

Before LUTTIG and KING, Circuit Judges, and Richard L. WILLIAMS, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed by published opinion. Judge King wrote the opinion, in which Judge Luttig and Senior Judge Williams joined.

OPINION

KING, Circuit Judge:

Joseph H. Mento, III, was convicted in the district court of possessing child pornography, in violation of 18 U.S.C.§ 2252A(a)(5)(B). Mento entered a guilty plea to the charge, reserving the right to appeal the lower court's determination that the statute, as amended by the Child Pornography Protection Act of 1996 ("CPPA" or "the Act"), is constitutional on its face. The federal courts of appeals that have considered this issue are split on its proper resolution. The First and Eleventh Circuits have upheld the Act against constitutional challenge, but the Ninth Circuit has struck down the CPPA as an unlawful abridgement of the free-speech guarantees secured by the First Amendment. We conclude that the Act passes constitutional muster, and we affirm the judgment of the court below.

I.

A.

In December 1997, the FBI received information from a confidential informant that Mento was in possession of child pornography; federal agents thereafter obtained a warrant authorizing the search and seizure of certain items in Mento's home. Upon execution of the war rant, Mento admitted to possessing child pornography, and he advised the agents how to access the material on his computer. The ensuing search of Mento's computer, external drives, and disks yielded more than one hundred images of naked, prepubescent children in sexually explicit situations. A number of these images depicted the children engaged in overt sexual acts with adults and with each other. According to a caption accompanying the images, one of the children was only five years old. Mento had downloaded the images from the Internet.

B.

1.

Since 1977, Congress has attempted to eliminate child pornography. See Protection of Children Against Sexual Exploitation Act of 1977, Pub. L. No. 95-225, 92 Stat. 7 (1978). In New York v.

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Ferber, 458 U.S. 747 (1982), the Supreme Court held that child pornography is outside the scope of the First Amendment; thus, unlike pornography exclusively involving adults, child pornography may be regulated regardless of whether it would otherwise be considered obscene.1

In the wake of Ferber, Congress amended the federal child pornography law to include aspects of the Court's decision. See Child Protection Act of 1984, Pub. L. No. 98-292, 98 Stat. 204 (1984).2 Four years later, after an investigatory commission found the Internet to be a popular medium for trafficking in child pornography, Congress outlawed the use of computers to transport, distribute, or receive such materials. See Child Protection and Obscenity Enforcement Act of 1988, Pub. L. No. 100-690, 102 Stat. 4485 (1988). Up to this point, most doubts as to what could constitute "child pornography" had been resolved by Ferber.

Then, in 1996, the CPPA was enacted to address the entirely new problems posed by technological advances. Congress was concerned, inter alia, with the practice of digitally altering photographic images to create child pornography out of innocent photos of children. See 110 Stat. 3009-26. Spurred by testimony that such material may be used by adults to entice children into sexual behavior, id., Congress expanded the definition of child pornography to include not only altered pictures of identifiable children, but also depictions of what "appear to be" minors. This latter category encompasses wholly artificial images, created without the involvement of an actual child.

Hence, the term "child pornography" now includes "any photograph, film, video, picture, or computer or computer-generated image or picture" where:

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

(B) such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct;

(C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engag ing in sexually explicit conduct; or

(D) such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or con tains a visual depiction of a minor engaging in sexu ally explicit conduct.

18 U.S.C. § 2256(8) (emphasis added).3 Whereas the first three para graphs define child pornography by the essence of the depiction itself, the fourth focuses instead on the independent matter of how the depiction's presumed (but perhaps not actual) nature is communicated to third parties.

The statute prohibits the transportation of child pornography in interstate or foreign commerce (including the Internet), as well as its receipt, sale, distribution, reproduction for distribution, or possession with intent to sell. 18 U.S.C. § 2252A(a)(1)-(4).

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Mento was charged with violating a separate provision, § 2252A(a)(5), which criminalizes the mere possession of child pornography that has been transferred via interstate commerce.4

2.

Mento argues that the CPPA, as a content-based restriction on speech, cannot survive the exacting standards of strict scrutiny review. Moreover, according to Mento, the Act is impermissibly overbroad and vague insofar as it criminalizes any visual depiction that "appears to be" child pornography, or that is transmitted in such a way as to "convey the impression" of being child pornography.5 The dis trict court denied Mento's motion to dismiss the indictment, adopting the reasoning of United States v. Hilton, 167 F.3d 61 (1st Cir. 1999). In Hilton, the First Circuit upheld the CPPA, ruling that the "appears to be" and "conveys the impression" language is neither so overbroad nor so vague as to render the Act unconstitutional. Id. at 71-77.

After judgment was entered against Mento in the district court, two other courts of appeals published decisions on the issues raised here and in Hilton. In United States v. Acheson, 195 F.3d 645 (11th Cir. 1999), the Eleventh Circuit aligned itself with Hilton in upholding the CPPA against constitutional attack. Shortly thereafter, however, a divided panel of the Ninth Circuit announced its disagreement with the rationale expressed in Hilton and Acheson, striking down the "appears to be" and "conveys the impression" language as unconstitutional on overbreadth and vagueness grounds. See Free Speech Coalition v. Reno, 198 F.3d 1083 (9th Cir. 1999). Mindful of the...

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