U.S. v. Kamen

• Decision Date: 12 June 2007
• Docket Number: Criminal No. 04-10384-PBS.
• Citation: 491 F.Supp.2d 142
• Parties: UNITED STATES v. Daniel KAMEN, Defendant.
• Court: U.S. District Court — District of Massachusetts

491 F.Supp.2d 142

UNITED STATES v. Daniel KAMEN, Defendant.

Criminal No. 04-10384-PBS.

United States District Court, D. Massachusetts.

June 12, 2007.

Peter T. Elikann, Law Offices of Peter Elikam, Boston, MA, Randall E. Kromm, Dena T. Sacco, United States Attorney's Office, Boston, MA, for Daniel Kamen.

Paul R. Moore, United States Attorney's Office, Charles W. Rankin, Rankin & Sultan, Boston, MA, for United States.

MEMORANDUM AND ORDER

SARIS, District Judge.

INTRODUCTION

Defendant Daniel Kamen was convicted by a jury of knowing receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2). At trial, the prosecution introduced a stipulation and confession that defendant ordered and received the videotapes that contained child pornography. Defendant introduced evidence that he suffered from erectile dysfunction and severe penile curvature since adolescence, that these problems were cured only after two surgeries, and that he was advised by his doctor to order pornography as part of his recovery regimen. There was also testimony that he suffers from Asperger's Syndrome, a mild form of autism. Defendant argued to the jury that the government failed to prove. beyond a reasonable doubt that he knew the videotapes contained sexually explicit pictures of minors at the time of receipt.

Defendant contends that a new trial is warranted because the Court erred by refusing to give a requested jury instruction on a lesser included offense of possession of child pornography. Whether possession of child pornography is a lesser included offense of receipt of child pornography involves an issue of first impression.

Defendant has moved this Court, pursuant to Fed.R.Crim.P. 29(c) and 33, to (a) enter a judgment of acquittal, (b) grant a new trial in the interests of justice, or (c) vacate the conviction and enter a verdict of guilty on the lesser included offense of possession of child pornography. After oral argument, the Court DENIES the motion to enter a judgment of acquittal or to vacate the conviction and enter a verdict of guilty on the lesser included offense of possession of child pornography, but ALOWS the motion for a new trial.

FACTUAL BACKGROUND

Daniel Kamen was indicted on December 22, 2004 on one count of receiving child pornography in violation of 18 U.S.C. § 2252(a)(2). A jury trial commenced before this Court on October 30, 2006. Evidence was presented over the course of two days.

1. The Government's Case

The government's case consisted of two documentary exhibits: a joint stipulation of facts and a sworn statement written and signed in Kamen's own hand for the United States Postal Inspector on the date of the defendant's arrest, December 6, 2004.

The stipulation offered by the government states the following:

1. The Defendant agrees that the images in the videotapes listed in Count One depict child pornography and are, in fact, actual minors engaged in sexually explicit conduct. A "minor" is defined as a person less than eighteen years old. By the term "actual," the parties mean that the videos depicted minors who were not digitally created or altered.

2. The video tapes which relate to the allegations in Count One were produced outside the Commonwealth of Massachusetts and mailed in interstate commerce.

3. On September 30, 2004, in response to an undercover United States Postal Inspection Service operation, the United States Postal Inspection Service received a written request, order and full payment from the Defendant for the following three video cassette tapes: Kissing Cousins; Boys Will Be Boys; and Boys and Girls. The Defendant mailed that order to a fictitious video distribution company, YBCVids, run by the United States Postal Inspection Agency from P.O. Box 176, Clear Spring, Maryland, 21722. The parties further agree that the Defendant signed the order and included with the order a cash payment of $65.00 in United States currency. The Defendant's order listed the following address for delivery of the three video tapes: "82 Brick Kiln Road, Building 10, Apartment 104, Chelmsford, MA" which address was also listed as the return address on the envelope in which the order and payment was mailed through the United States mails.

4. On December 6, 2004, and at all times relevant to the Indictment, the Defendant resided at that same address: 82 Brick Kiln Road, Building 10, Apartment 104, Chelmsford, MA.

5. Prior to December 6, 2004, the United States Postal Inspection Service delivered a package containing the three aforementioned video tapes (which the Defendant had ordered) to a postal receptacle within his apartment complex and near his actual residence, with a written notice to the Defendant that a package was present in the receptacle for him to retrieve. On December 6, 2004, the Defendant retrieved those videotapes from the mail receptacle and took them into his residence.

6. Shortly thereafter, on December 6, 2004, United States Postal Inspectors conducted a search of the Defendant's residence and found the video tapes (titled Kissing Cousins, Boys Will Be Boys, and Boys and Girls) in the Defendant's possession.

7. On December 6, 2004, a United States Postal Inspector (Scott Kelley) advised the Defendant of his Miranda rights. The Defendant waived those rights (both orally and in written form) and offered to fully cooperate with investigators in the matter. The Defendant then wrote a statement. The Defendant also orally admitted that he had ordered the three aforementioned video tapes through the United States mails (Kissing Cousins, Boys Will Be Boys, and Boys and Girls), that he knew that the images depicted minors and that the images he had ordered and received contained and depicted minors engaged in sexually explicit conduct.

The government also offered a signed statement from the defendant. Of particular note, the document indicates that Kamen stated to the Postal Inspector:

I ordered videos of teenage boys to be delivered to my apartment ... I ordered them because I was curious about seeing a video of teenage boys. I felt very dirty watching these and I am remorseful for ordering these. I am sorry for looking at these and realize that it is wrong and will promise to never look at pictures like this again.

The prosecutor did not seek to call any witnesses or introduce other evidence.

2. The Defense Case

The defendant called three witnesses: Dr. Irwin Goldstein, Dr. Carol Ball, and Helene Kamen, defendant's mother.

Dr. Goldstein is a world-renowned urologist specializing in sexual medicine who treated Kamen through the Boston University Center for Sexual Medicine from January 2004 through February 2005. According to Dr. Goldstein, Kamen first came to his office because the defendant had "problems with curved erections and with erections that are only 50 to 60 percent of a rigid erection." (Tr. 15:2-4, Oct. 31, 2006.) Eventually, the doctor determined that Kamen had suffered from erectile dysfunction and severe penile curvature since early adolescence, which was caused by "a blocked artery to his penis." (Tr. 21:12, Oct. 31, 2006.) The curvature was so severe that sexual intercourse would have been all but impossible, and, indeed, Kamen remained a virgin at least until Dr. Goldstein ceased treatment in 2005.

A prior surgery by a different doctor to correct the penile curvature when Kamen was 16 years old had failed to correct the curvature, leaving the defendant scarred, physically and emotionally. Dr. Goldstein performed a second surgery in April 2004 in order to bypass the arterial blockage and to surgically straighten Kamen's penis. The doctor also oversaw Kamen's recovery to ensure that additional operations on the penis would not be required.

Dr. Goldstein testified that proper blood flow through the penis was critical to Kamen's physical recovery. According to the doctor:

The sort of issue with penises that are post-op is that it's very important to provide oxygen to the tissues. That's how we continue penile health. For a man who has prostate cancer and has prostate cancer surgery, for 18 months we give them medications like Viagra on a daily basis called `penile rehabilitation.' The concept is to continuously provide oxygen. The penis doesn't get oxygen when it's sitting there not sexual. So for these patients, the same as the prostate cancer patients, we encourage erections. So we try and get patients to be sexually active, if they have a partner, and if they don't, to perform self-stimulation post-op.

(Tr. 29:10-21, Oct. 31, 2006.)

To that end, he prescribed an indefinite course of a Viagra-like drug which would cause regular erections and encouraged Kamen to become sexually active. Dr. Goldstein learned through a series of follow-up visits that Kamen was not engaging in sexual activity of any kind; the physician's notes frequently lamented that "not too much has changed since his last visit in the context of getting a partner and becoming sexual." (Tr. 31:2-3, Oct. 31, 2006.) He continued to advocate strongly that Kamen at least masturbate regularly, ultimately counseling that Kamen try using pornography to stimulate interest. In particular, the doctor's notes indicate that Dr. Goldstein remarked to the defendant, "He [Kamen] is not, however, sexual. He does not masturbate and does not feel the need to masturbate. I discussed the issue of going to procure some pornographic materials such as at Grand Openings [an adult bookstore] ... in Brookline to aid him in starting to masturbate and gain self-confidence and erectile function." (Tr. 33:12-25, Oct. 31, 2006.)

Shortly after Dr. Goldstein suggested that he procure this pornographic material as part of his recovery regimen, the defendant acquired the illegal videos from the U.S. Postal Inspection Service. Kamen was arrested soon after he received these videos.

As a result of these physical maladies, Dr. Goldstein further opined that the defendant suffered from significant psychological...