76 F.Supp.2d 191 (D.Conn. 1999), Crim. 398CR228, United States v. Dauray

Docket Nº:Crim. 398CR228
Citation:76 F.Supp.2d 191
Party Name:United States v. Dauray
Case Date:April 26, 1999
Court:United States District Courts, 2nd Circuit, District of Connecticut

Page 191

76 F.Supp.2d 191 (D.Conn. 1999)



Charles DAURAY.

Crim. no. 398CR228 (JBA).

United States District Court, D. Connecticut.

April 26, 1999

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Gary D. Weinberger, Federal Public Defender's Office, Hartford, CT, for Charles R. Dauray.

Denise Derby, Peter A. Cark, Barbara Bailey Jongbloed, Stephen C. Robinson, U.S. Attorney's Office, New Haven, CT, for U.S.


ARTERTON, District Judge.

On February 9, 1999, a unanimous jury found Charles Dauray guilty on Count One of the Indictment. The Indictment charged that:

On or about May 13, 1994, in the District of Connecticut, the defendant, CHARLES DAURAY, did knowingly possess three (3) or more photographs, and or copies of photographs, and other matters, that had been transported in interstate commerce, the production of which involved the use of minors engaged in sexually explicit conduct, specifically, the lascivious exhibition of genitalia, and which visual depictions were of such conduct as mentioned above.

All in violation of Title 18, United States Code, Section 2252(a)(4)(B).

Section 2252(a)(4)(B) provides that any person who

(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 ...

18 U.S.C. § 2252(a)(4)(B) (as in effect). 1 Section 2256, the definitions provision for the chapter, defines "sexually explicit conduct" as, inter alia, "lascivious exhibition of the genitals or pubic area of any person." 18 U.S.C. § 2256(2)(E).

At trial, the defendant entered into a stipulation with the government stating that:

1. On or about May 13, 1994, Charles Dauray possessed the visual depictions which have been introduced into evidence

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as Government Exhibits 1 through 13; and

2. Charles Dauray was aware of the contents of these visual depictions and thus, he knew that genitalia of minors appear in each of them.

(Court's Ex. 1). In a second stipulation, the defendant and government agreed that these items were transported or shipped in interstate commerce and traveled from Arizona to Connecticut. (Court's Ex. 2). The substantive evidence at trial consisted of thirteen pictures depicting very young nude boys and girls in various poses. By special interrogatory, the jury made a specific finding that Government Exhibits 9, 10, 12, and 13 constituted lascivious displays of minors' genitalia.

The defendant has moved to dismiss the indictment for failure to charge an offense, for a judgment of acquittal, and has to arrest the judgment. Pursuant to Fed.R.Crim.P. 12(b)(2) and 34, Dauray argues that while the indictment charged that he possessed three or more visual depictions, it nowhere charges that he possessed three or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction. The defendant posits that a photograph is in and of itself a "visual depiction" that cannot "contain" any visual depiction, and therefore the indictment failed to charge an offense and should be dismissed. In his motion for acquittal pursuant to Fed.R.Crim.P. 29, the defendant maintains in the alternative that no rational juror could find that the pictures at issue in this case could be found to constitute lascivious displays of the genitalia of minors.

Motion to Dismiss: "Other Matter Which Contain"

Prior to the 1998 amendment, the statute under which Dauray was found guilty made illegal the possession of "three or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction" that involved the use of a minor engaging in sexually explicit conduct. 18 U.S.C. § 2252(a)(4)(B). It was undisputed at trial that the items that Dauray possessed were loose, individual photographs, not held together by any method or held within any receptacle. Dauray maintains that the indictment did not charge him with an offense, and he did not commit any offense, because he did not possess three or more items "which contain" any visual depiction in violation of the statute.

In examining the meaning of a statute, the Court must first look to the plain meaning of the statute. "[T]he starting point for interpreting a statute is the language of the statute itself." Consumer Prod. Safety Comm'n v. GTE Sylvania, 447 U.S. 102, 108, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980). "Indeed, '[w]hen the words of a statute are unambiguous, ... this first canon is also the last: judicial inquiry is complete.' " United States v. Piervinanzi, 23 F.3d 670, 677 (2d Cir.1994) (quoting Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992)).

The defendant asserts that the "rule of lenity," under which the Court must choose the more narrow of two equally plausible readings of a criminal statute, requires an interpretation of § 2252(a)(4)(B) in his favor. The rule of lenity, however, "applies only if, after seizing everything from which aid can be derived, ... [the Court] can make no more than a guess as to what Congress intended." Muscarello v. United States, 524 U.S. 125, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998) (quoting United States v. Wells, 519 U.S. 482, 499, 117 S.Ct. 921, 137 L.Ed.2d 107 (1997)). "The simple existence of some statutory ambiguity, however, is not sufficient to warrant application of [the rule of lenity], for most statutes are ambiguous to some degree." To invoke the rule, the Court must conclude that there is a "grievous ambiguity or uncertainty" in the statute. Staples v. United States, 511 U.S. 600, 619 n. 17, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994).

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Dauray's argument begins by establishing that under the statute, a photograph is considered to be a "visual depiction." See United States v. Whiting, 165 F.3d 631, 633-34 (8th Cir.1999). There is no real dispute that photographs are included within...

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