U.S. v. Pearl

• Decision Date: 06 March 2000
• Docket Number: No. 1:99-CR-021-ST.,1:99-CR-021-ST.
• Parties: UNITED STATES of America, Plaintiff, v. Thomas J. PEARL, Defendant.
• Court: U.S. District Court — District of Utah

89 F.Supp.2d 1237

UNITED STATES of America, Plaintiff, v. Thomas J. PEARL, Defendant.

No. 1:99-CR-021-ST.

United States District Court, D. Utah, Northern Division.

March 6, 2000.

Elizabethanne C. Stevens, U.S. Attorney's Office, Stephanie D. Thacker, U.S. Dept. of Justice, Washington, DC, Judith A. Jensen, Utah Attorney General's Office, Litigation Unit, Salt Lake City, UT, for plaintiff.

Robert Breeze, Salt Lake City, UT, Bel-Ami J. de Montreaux, Montreux Freres PC, Salt Lake City, UT, for defendant.

ORDER DENYING DEFENDANT'S MOTION TO DISMISS COUNTS I, II, III, IV AND V OF THE INDICTMENT FOR VAGUENESS, OVER BREADTH AND ILLEGAL BURDEN SHIFTING AND FOR AN ORDER REQUIRING GOVERNMENT TO PROVE THE ALLEGED IMAGES ARE OF ACTUAL MINORS

STEWART, District Judge.

This matter came before the court for hearing on February 28, 2000, on Defendant's Motion to Dismiss Counts I, II, III, IV and V of the Indictment for Vagueness, Overbreadth and Illegal Burden Shifting and for an Order Requiring Government to Prove the Alleged Images are of Actual Minors.

Defendant seeks dismissal of the first five counts of the indictment against him. Defendant is charged with three counts of transporting child pornography by a computer in violation of 18 U.S.C. § 2252A(a)(1) (Counts 1-3); transporting child pornography by an airplane in violation of 18 U.S.C. § 2252A(a)(1) (Count 4); possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) (Count 5); enticing illegal sex acts by a minor (Count 6); and, traveling in commerce to engage in an illegal sex act in violation of 18 U.S.C. § 2423(b) (Count 7). The basis for dismissal is defendant's claim that the underlying statutes which defendant is alleged to have violated resulting in the first five counts in the indictment, the Child Pornography Protection Act of 1996 (CPPA), 18 U.S.C. § 2252A, and its companion definitional statute 18 U.S.C. § 2256, are unconstitutional for vagueness, overbreadth and illegal burden shifting in that the CPPA prohibits the possession and the transportation via computer and airplane of child pornography using "cyber minors" in addition to actual minors. The CPPA, among other things added a new section 2252A to Title 18 and added a new subsection (8) to 18 U.S.C. § 2256, to expand the scope of prohibited "child pornography." S.Rep. 104-358, Sect. 3 and 4.

Defendant relies upon the Ninth Circuit decision, Free Speech Coalition v. Reno, 198 F.3d 1083 (9th Cir.1999), to support the claim that subsections (8)(B) and (8)(D) of § 2256 of the CPPA, those sections that define "child pornography" to include images not necessarily of real children, are unconstitutional. He furthermore appears to agree with the Ninth Circuit's position that such sections though void, are severable.

Defendant also asserts that the CPPA shifts the burden of proof to establish each and every element of the alleged crime of transportation or possession of child pornography beyond a reasonable doubt, from the government to the defendant. 18 U.S.C. § 2252A(c) (affirmative defense). Based upon defendant's assumption that the court will find in his favor on the unconstitutionality of those portions of the CPPA, the defendant seeks an order from the court requiring the government to prove that the images allegedly transported and possessed by defendant are of actual minors.

This court is being asked to decide the constitutionality of an act of Congress. This is not a matter to be taken lightly by this, or any other court. In approaching such a task, it is essential to first ascertain what deference the court must afford the acts of Congress generally.

Every act of Congress is entitled to a "strong presumption of validity and constitutionality" Barwick v. Celotex Corp., 736 F.2d 946, 955 (4th Cir.1984). An act of Congress should be invalidated "only for the most compelling constitutional reasons." Mistretta v. United States, 488 U.S. 361, 384, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). In Westside Comm. Bd. of Educ. v. Mergens, the Supreme Court said, "given the deference due `the duly enacted and carefully considered decision of a coequal and representative branch of our Government,'" a court is not [to] lightly "second-guess such legislative judgments." 496 U.S. 226, 251, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990) (quoting Walters v. National Ass'n of Radiation Survivors, 473 U.S. 305, 105 S.Ct. 3180, 87 L.Ed.2d 220 (1985)).

A more precise question is what deference the court must afford the findings of Congress in justifying a legislative enactment that triggers a challenge under the First Amendment. In Turner Broadcasting System, Inc. v. F.C.C., 520 U.S. 180, 195-96, 117 S.Ct. 1174, 137 L.Ed.2d 369 (1997), the Supreme Court enunciated the standard.

In reviewing the constitutionality of a statute, "courts must accord substantial deference to the predictive judgments of Congress." [Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) (Turner).] Our sole obligation is "to assure that, in formulating its judgments, Congress has drawn reasonable inferences based on substantial evidence." Id., at 666, 114 S.Ct. 2445. We owe Congress' findings deference in part because the institution "is far better equipped than the judiciary to `amass and evaluate the vast amounts of data' bearing upon legislative questions." Id., at 665-66, 114 S.Ct. 2445. This is not the sum of the matter, however. We owe Congress' findings an additional measure of deference out of respect for its authority to exercise the legislative power. Even in the realm of First Amendment questions where Congress must base its conclusions upon substantial evidence, deference must be accorded to its findings as to the harm to be avoided and the remedial measures adopted for that end, lest we infringe on traditional legislative authority to make predictive judgments when enacting nationwide regulatory policy.

Turner Broadcasting, 520 U.S. at 195-96, 117 S.Ct. 1174 (citations partially omitted).

In reviewing the specific act of Congress in question here, the CPPA, it is valuable to examine the treatment of child pornography by the Supreme Court apart from the CPPA.

In 1942, the Supreme Court held that not all speech is entitled to the same protection under the Constitution. The Supreme Court enunciated this standard in Chaplinsky v. State of New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942).

[I]t is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene. ... It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

Chaplinsky, 315 U.S. at 571-72, 62 S.Ct. 766 (footnotes omitted).

When called upon to rule on the constitutionality of a New York statute intended to curb child pornography, the Supreme Court held "that the States are entitled to greater leeway in the regulation of pornographic depictions of children." New York v. Ferber, 458 U.S. 747, 756, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). Further, the Court enunciated the holding that in specific and narrowed circumstances, child pornography was not to be afforded the protection of the First Amendment:

When a definable class of material ... bears so heavily and pervasively on the welfare of children engaged in its production, we think the balance of competing interests is clearly struck and that it is permissible to consider these materials as without the protection of the First Amendment.

Ferber, 458 at 764, 102 S.Ct. 3348.

In the case of Osborne v. Ohio, 495 U.S. 103, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990), the Supreme Court upheld the conviction of a defendant for possession of child pornography in violation of Ohio state law. The Court held that the State could constitutionally proscribe the possession and viewing of child pornography, not because of the State's interest in protecting the viewer, but on the basis of its compelling interests in protecting the physical and psychological well-being of minors and in destroying the market for the exploitive use of children by penalizing those who possess and view the offending materials. Id., 110 S.Ct. at 1696, 1697. "Given the gravity of the State's interests in this context, we find that Ohio may constitutionally proscribe the possession and viewing of child pornography." Id., at 1697.

It is, of course, essential to state that Ferber and Osborne dealt with statutes that outlawed child pornography involving actual children. In both of these decisions, the Supreme Court relied upon the impact of child pornography on the child victims and the State's compelling interest in protecting children to justify the unique treatment afforded child pornography under the Constitution. E.g. Ferber, 458 U.S. at 756, 758, 102 S.Ct. 3348 ("[W]e have sustained legislation aimed at protecting the physical and emotional well-being of youth even when the laws have operated in the sensitive area of constitutionally protected rights.") and Osborne, 110 S.Ct. at 1695 (distinguishing prior case striking down a State law involving child pornography where the state has a "compelling" interest in protecting child victims by stamping out the market for child pornography). But as noted above in Osborne, protection of the child exploited to produce the pornography is not the only justification for the criminalization of child pornography. 495 U.S. at 111, 110 S.Ct. 1691.

The question before this court, however, deals with the CPPA's expansion of the prohibited materials to include those that might not in fact be images of...