444 F.3d 1286 (11th Cir. 2006), 04-15128, United States v. Williams

Docket Nº:04-15128.
Citation:444 F.3d 1286
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Michael WILLIAMS, Defendant-Appellant.
Case Date:April 06, 2006
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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444 F.3d 1286 (11th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellee,


Michael WILLIAMS, Defendant-Appellant.

No. 04-15128.

United States Court of Appeals, Eleventh Circuit.

April 6, 2006

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[Copyrighted Material Omitted]

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Ophelia M. Grillo, Ophelia M. Grillo, P.A., Coral Gables, FL, for Williams.

Richard J. Diaz, Law Offices of Richard J. Diaz, P.A., Coral Gables, FL, Eduardo I. Sanchez, Anne R. Schultz, Asst. U.S. Atty., Suzan H. Ponzoli, Miami, FL, for U.S.

Appeal from the United States District Court for the Southern District of Florida, D. C. Docket No. 04-20299-CR-DMM

Before BARKETT, WILSON and REAVLEY[*] , Circuit Judges.

REAVLEY, Circuit Judge

Michael Williams appeals his conviction for promotion of child pornography under 18 U.S.C. § 2252A(a)(3)(B) on the grounds of facial unconstitutionality. For this reason, we reverse that conviction. Williams was also convicted of possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B), and he appeals his sentence for that offense on the grounds that the court unconstitutionally enhanced his sentence under a mandatory guidelines scheme in violation of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Because there was no reversible Booker error, we affirm Williams's sentence of 60-months' imprisonment.

I. The Charges

On April 26, 2004, as part of an undercover operation aimed at combating child exploitation on the Internet, United States Secret Service Special Agent (SA) Timothy Devine entered an Internet "chat" room using the screen name "Lisa n Miami" (LMN). SA Devine observed a public message posted by a user employing a sexually graphic screen name, which was later traced to the defendant Williams. Williams's public message stated that "Dad of toddler has 'good' pics of her an [sic] me for swap of your toddler pics, or live cam." SA Devine as LNM engaged Williams in a private Internet chat during which they swapped non-pornographic photographs. Williams provided a photograph of a two to three- year-old female lying on a couch in her bathing suit, and five photographs of a one to two-year-old female in various non-sexual poses, one of which depicted the child with her breast exposed and her pants down just below her waistline. LNM sent a non-sexual photo of a college-aged female digitally regressed to appear ten to twelve years old, who LNM claimed was her daughter.

After the initial photo exchange, Williams claimed that he had nude photographs of his four-year-old daughter, stating "I've got he [hard core] pictures of me and dau, and other guys eating her out - do you??" Williams asked for additional pictures of LNM's daughter. When these pictures were not received, Williams accused LNM of being a cop. LNM responded by accusing Williams of being a cop. After repeating these accusations in

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the public part of the chat room, Williams posted a message stating "HERE ROOM; I CAN PUT UPLINK CUZ IM FOR REAL -SHE CANT." The message was followed by a computer hyperlink, which SA Devine accessed. The computer hyperlink contained, among other things, seven images of actual minors engaging in sexually explicit conduct. The nude children in the photos were approximately five to fifteen years old, displaying their genitals and/or engaged in sexual activity.

Secret Service agents executed a search warrant of Williams's home. Two computer hard drives seized during the search held at least twenty-two images of actual minors engaged in sexually explicit conduct or lascivious display of genitalia. Most of the images depicted prepubescent children and also depicted sado-masochistic conduct or other depictions of pain.

Williams was charged with one count of promoting, or "pandering," material "in a manner that reflects the belief, or that is intended to cause another to believe," that the material contains illegal child pornography in violation of 18 U.S.C. § 2252A(a)(3)(B), which carries a sixty-month mandatory minimum sentence. Williams was also charged with one count of possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B).

Williams filed a motion to dismiss the pandering charge on the grounds that 18 U.S.C. § 2252A(a)(3)(B) is unconstitutionally overbroad and vague. While the motion was pending before the trial court, the parties reached a plea agreement by which Williams would plead guilty to both counts but reserve his right to challenge the constitutionality of the pandering provision on appeal. The court sentenced Williams to sixty-months' imprisonment for the pandering charge and sixty months for the possession charge, to be served concurrently.

II. Williams's Facial Challenge to 18 U.S.C. § 2252A(a)(3)(B)

A. Standard of Review

We review a district court's conclusion as to the constitutionality of a challenged statute de novo.1

B. The Child Pornography Problem

In this case, we consider the constitutionality of a law aimed at curbing the promotion, or "pandering,"2 of child pornography. Relevant to this case, there are two types of child pornography. Roughly speaking, "actual" or "real" child pornography depicts true minors engaged in sexual conduct. In contrast, "virtual" child pornography depicts what appear to be actual minors engaged in sexual conduct, but in reality consists of computer-generated or enhanced images. Child pornography

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images of both types are typically circulated through the Internet. While society has benefitted greatly from the technological advances of the last decade, an unfortunate byproduct of sophisticated imaging technology and the rise of the Internet has been the proliferation of pornography involving children.3

The anonymity and availability of the online world draws those who view children in sexually deviant ways to websites and chat rooms where they may communicate and exchange images with other like-minded individuals. The result has been the development of a dangerous cottage industry for the production of child pornography as well as the accretion of ever-widening child pornography distribution rings.4 Our concern is not confined to the immediate abuse of the children depicted in these images, but is also to enlargement of the market and the universe of this deviant conduct that, in turn, results in more exploitation and abuse of children. Regulation is made difficult, not only by the vast and sheltering landscape of cyberspace, but also by the fact that mainstream and otherwise innocuous images of children are viewed and traded by pedophiles as sexually stimulating.

Over the years, Congress has, by large bipartisan majorities, enacted legislation designed to punish those who produce, peddle, or possess child pornography. Congress has struggled to draft legislation that captures the truly objectionable child-exploitative materials while staying within the boundaries of the Supreme Court's First Amendment jurisprudence. The protection of our children against sexual abuse and predatory pedophiles is of extraordinary importance. We do not question that strong federal laws are needed, but they must pass constitutional muster. In other words, Congress may not "burn the house to roast the pig."5 Whether that difficult balance has been struck in the instant legislation is the issue before us.

C. The Law and Child Pornography

We begin with a brief overview of child pornography law, which as a distinct body, is of relatively recent vintage. The regulation of child pornography was initially rooted in the Supreme Court's obscenity doctrine. In Miller v. California, 6 the

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Court set forth the three-prong social merit test for determining whether materials are obscene, and therefore prescribable as a category of unprotected speech. In Stanley v. Georgia, 7 the Court held that privacy interests protect the right to possess obscene materials in one's own home, but subsequently clarified that this sanction does not extend to the distribution or receipt of obscenity, which may be regulated on interstate commerce grounds even if the transportation is for the recipient's personal use.8 Against this backdrop, Congress passed its first child pornography legislation, the Protection of Children against Sexual Exploitation Act, in 1977.9 It was keyed to the Miller standard, outlawing the use of children in the production of obscene materials and criminalizing the knowing distribution of such materials for commercial purposes.

In 1982, the Supreme Court first dealt directly with the issue of child pornography. In New York v. Ferber, 10 a unanimous Court proclaimed that child pornography was a distinct new category of speech without First Amendment protection, holding that the government may constitutionally prohibit the creation or promotion of pornography featuring real children even though it does not meet the Miller standard. The primary rationale of Ferber was that child pornography must be prohibited because of the intrinsic harm done to children in its production.11 The Court reasoned that child pornography not only documents an underlying act of abuse — the sexual use of a child — but the recording of the act and subsequent circulation of the images perpetuates the injury to the depicted child.12

In response to Ferber, Congress passed the Child Protection Act of 1984 (CPA), 13 which was modeled on the New York statute upheld in Ferber. The CPA expanded the definition of child pornography to include non-obscene but sexually suggestive pictures of children and eliminated the commercial purposes requirement of earlier proscriptions. Interstate commerce advertisements and solicitations for child pornography were banned by the Child Sexual Abuse and Pornography Act of 1986.14

Congress first...

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