855 F.2d 299 (6th Cir. 1988), 86-6192, United States v. Johnson

Docket Nº:86-6192.
Citation:855 F.2d 299
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Lee R. JOHNSON, Defendant-Appellant.
Case Date:August 23, 1988
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 299

855 F.2d 299 (6th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,

v.

Lee R. JOHNSON, Defendant-Appellant.

No. 86-6192.

United States Court of Appeals, Sixth Circuit

August 23, 1988

Argued July 30, 1987.

Page 300

Kemper B. Durand, argued, Memphis, Tenn. (court-appointed), for defendant-appellant.

W. Hickman Ewing, Jr., U.S. Atty., Memphis, Tenn., Dan Newsom, argued, for plaintiff-appellee.

Before ENGEL, Chief Judge, [*] and MERRITT and KRUPANSKY, Circuit Judges.

KRUPANSKY, Circuit Judge.

Defendant-appellant, Dr. Lee R. Johnson (Johnson), appealed following a bench trial in which he was convicted upon one count of transmitting obscene materials through the mails in violation of 18 U.S.C. Sec. 2252, and fifteen counts of receiving obscene materials through the mails in violation of 18 U.S.C. Sec. 1461.

Johnson, an associate professor of history at Memphis State University, is a self-confessed pedophile. Beginning in the mid-1970's and continuing until October of 1985, Johnson acquired and maintained a sizeable collection of pedophilic materials which included: 100 magazines, 58 books and booklets, 13 reels of film, and numerous drawings. The collection also included advertising brochures that contained sexually explicit photographs of children. Several of the items in the collection remained in the original postmarked envelopes in which they had been received by Johnson from commercial distributors in California, Denmark, Sweden and the Netherlands.

In a letter dated July 29, 1983, Johnson came to the attention of postal inspectors by responding to an advertisement contained in Screw Magazine, placed by Postal Inspector Daniel Mihalko (Mihalko) as part of an undercover investigation involving mail obscenity. The advertisement offered the sale of materials depicting "Youthful Interests," "Fun Farm," and "Latin Family Fun." Johnson's letter stated:

"I am interested in family fun and young girls. I will buy 8mm films, magazines and photo sets, (Hard core only). I am over the age of 21, and I am not affiliated with or acting for any censorship or law enforcement agency. All material is intended for my personal use."

Upon receipt of the letter, Mihalko mailed a preprinted order form to Johnson, which he subsequently completed and returned to Mihalko on September 12, 1983.

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The investigation of Johnson was thereafter assigned to Postal Inspector Dennis Wichterman (Wichterman). 1 In a letter to Johnson postmarked December 14, 1984, Wichterman adopted the fictitious identity of "Jake Wichoff" who represented a company named "Young Tallent [sic] Enterprises." Wichterman described the fictitious company as a group of entrepreneurs specializing in "the discovery and circulation of new young talent" and invited Johnson to permit the company to mail additional information. Johnson responded in a letter postmarked December 18, 1984, stating that Wichterman's fictitious organization "sounds like just what I have been looking for ... and if your material is of good quality, I expect to be one of your best customers...." Thereafter, Wichterman requested Johnson to specify his needs. Johnson replied by advising Wichterman that he was interested "in purchasing drawings, photographs or films of young girls engaging in various activities with young men, or with their families." Johnson also solicited from Wichterman the names of anyone in the Memphis area who could supply him with the desired pedophilic material and requested Wichterman to circulate his name to anyone capable of fulfilling his needs.

In further correspondence, Wichterman cautioned Johnson that "[p]ostal officials and law enforcement are everywhere...." Undeterred by Wichterman's warning, Johnson responded by suggesting that he would be willing to exchange items from his collection of child pornography, with Wichterman or others, in return for similar materials. In addition, Johnson stated that he would "be interested in making personal contacts with families who share my interest."

At this point, Wichterman changed his identity with Johnson and assumed the fictitious identity of "Daniel" who was held out to be a collector of pedophilic materials and was referred to Johnson by the fictitious "Jake Wicoff." Johnson responded favorably by letter. In further correspondence, Johnson listed specific magazines and films contained in his collection which he desired to exchange for similar material. Johnson suggested that the two meet in Chattanooga, Tennessee to swap materials because "I don't want to put anything in the mail," and requested Wichterman to refer him to someone who would sell him pedophilic materials.

In his next letter, Wichterman listed the titles of several magazines in which he believed Johnson would have interest. In refusing Johnson's suggestion to meet in Chattanooga, Wichterman stated "I don't know about you but I can't afford to travel to meet everybody I'm going to trade with." In addition, Wichterman suggested that it would be safer for Johnson to rent a post office box instead of using his home address.

Within fourteen days, Johnson wrote to advise Wichterman that he had rented a post office box and that he possessed certain magazines that Wichterman sought. Agreeing with Wichterman's claim that he could not financially afford to travel every time that he wished to exchange materials, Johnson stated he would travel to Chattanooga because he was "antsy about putting things in the mail."

Rather than immediately answering Johnson's letter, Wichterman delayed his next communication for several weeks. In further correspondence with Johnson, Wichterman stated that he had been vacationing in Florida and had reviewed the proposed exchange of pedophilic materials. Wichterman also related a fictitious expectation of a sexual liason with a young girl named "Julie" with whom he had recently become acquainted. In a reply dated June 23, 1985, Johnson stated "I was glad to hear that you were only in Florida [because] I was beginning to think that something was wrong." In response to Wichterman's ficticious pursuits with "Julie," Johnson wrote

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"I'd like to make personal contact, but with the heat on the way it is I don't dare to try here, and don't know how to go about making contact elsewhere. (We have no children ourselves)."

Further, Johnson cautioned Wichterman that the child might "blow the whistle[.]" Lastly, Johnson reiterated his desire to expand the size of his collection by either purchasing or trading pedophilic materials, and again requested Wichterman to refer him to someone who would be willing to sell him child pornography.

In his following letter dated July 7, 1985, Wichterman described a video tape of a couple and their eight year old child that he hoped to obtain from a collector in Michigan. Wichterman also stated "[A]s far as magazines, yes, I would love to borrow some to photograph and enjoy." Wichterman also indicated that he was in the process of creating a video tape of certain magazines he possessed containing sexually explicit photography of children and inquired whether Johnson would be interested in contributing any material. At no time did Wichterman direct Johnson to use the mails to transmit the magazines requested.

Shortly thereafter, on July 18, 1985, Wichterman received a plain brown paper package that contained three magazines of sexually explicit photographs of children. The package listed Johnson's post office box as a return address.

Wichterman posted a letter to Johnson wherein he acknowledged receipt of the package, and suggested that he would personally visit Johnson in Memphis during September of 1985. In response to Wichterman's statement that he had received the package, Johnson wrote

"I'm glad you got the materials I sent you. I didn't enclose a note because I didn't know if that would be prudent--remember, I'm still new at this."

Johnson also agreed to Wichterman's suggestion that they personally meet at Johnson's apartment. Further correspondence ensued in which Wichterman and Johnson mutually planned to meet in October of 1985.

Wichterman obtained a valid warrant authorizing a search of Johnson's apartment and, accompanied by other postal inspectors, proceeded to his address on October 2, 1985. Upon meeting with Johnson and entering the apartment, Wichterman identified himself as a postal inspector and served Johnson with the warrant. The other postal inspectors then entered the apartment and a search was conducted that disclosed a substantial collection of child pornography. Johnson thereupon voluntarily admitted that he had mailed a package containing sexually explicit photographs of children to Wichterman, and had consented to a search of his office at Memphis State University which revealed additional pedophilic materials.

On October 3, 1985, a criminal complaint charged Johnson with one count of transmitting child pornography through the mails in violation of 18 U.S.C. Sec. 2252. Johnson was subsequently indicted on October 16, 1985, and entered a plea of "not guilty" on October 23, 1985. A superseding indictment was returned on January 7, 1986, which additionally charged Johnson with seventeen counts of receiving pornography through the mails in violation of 18 U.S.C. Sec. 1461 and 18 U.S.C. Sec. 2. 2 Johnson was subsequently arraigned on January 2, 1986, and pled "not guilty" to all counts.

In an opinion filed on August 11, 1986, the district court determined that Johnson was guilty on all counts. Johnson was subsequently sentenced to a five year period of probation. He thereafter filed a timely notice of appeal to this court.

On appeal, Johnson raised four arguments. In regards to his conviction under 18 U.S.C. Sec. 2252, Johnson...

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