893 F.2d 1066 (9th Cir. 1990), 88-5325, United States v. Thomas

Docket Nº:88-5325.
Citation:893 F.2d 1066
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Charles James THOMAS, Defendant-Appellant.
Case Date:January 10, 1990
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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893 F.2d 1066 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,


Charles James THOMAS, Defendant-Appellant.

No. 88-5325.

United States Court of Appeals, Ninth Circuit

January 10, 1990

Argued and Submitted June 7, 1989.

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Ezekiel E. Cortez, Aaron & Cortez, San Diego, Cal., for defendant-appellant.

Bruce R. Castetter and Joan P. Weber, Asst. U.S. Attys., San Diego, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before HUG, HALL and WIGGINS, Circuit Judges.

WIGGINS, Circuit Judge:

Charles James Thomas appeals his conviction in a jury trial for three counts of violating the federal child pornography statutes, 18 U.S.C. Secs. 2251-2252 (Supp. V 1987). 1 We have jurisdiction under 28 U.S.C. Sec. 1291 (1982). We affirm.


From the evidence presented at trial, the jury could properly have found the following facts: In December 1986, Clark Color Laboratories (Clark), a mail order photo developing company in Maryland, received several rolls of film for developing in an envelope bearing a San Ysidro, California post office box return address. When Clark developed and printed these rolls, it found them to contain images of a girl approximately thirteen years old, engaged in sex acts with an adult male. Clark turned the negatives and prints over to the Postal Service, which conducted a controlled delivery to the San Ysidro post office. Postal inspectors arrested Thomas when he picked up the film. The inspectors subsequently found evidence linking Thomas to having shot and mailed, as well

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as to having received the film. Thomas was readily identifiable as the adult male in the pictures on whom the young girl was performing sex acts; pictures of Thomas' wife were interspersed with the pictures of the young girl and Thomas; Thomas possessed a blanket that appeared in some of the pictures; and the post office box to which the film was sent was registered to Thomas.

The jury convicted Thomas of engaging a minor in sexually explicit conduct for the purpose of creating a visual depiction of that conduct in violation of section 2251(a), transporting or mailing obscene material in violation of section 2252(a)(1), and receiving obscene material in violation of section 2252(a)(2).

I. Extraterritorial Application of Section 2251(a)

Thomas contends that the prosecution's failure to introduce any evidence at trial that Thomas shot the pictures of himself and the young girl in the United States requires reversal of his conviction for violating section 2251(a). Thomas argues that if he committed these acts, he did so in Mexico and section 2251(a) does not apply to extraterritorial acts. We review this question of law de novo. United States v. Endicott, 803 F.2d 506, 514 (9th Cir.1986).

Section 2251(a) provides:

Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, or who transports any minor in interstate or foreign commerce, or in any Territory or Possession of the United States, with the intent that such minor engage in any sexually explicit conduct for the purpose of producing any visual depiction of such conduct, shall be punished as provided under subsection (d), if such person knows or has reason to know that such visual depiction will be transported in interstate or foreign commerce or mailed, or if such visual depiction has actually been transported in interstate or foreign commerce or mailed.

The commerce clause grants Congress the power to enact this penal statute. Congress may apply its penal statutes to extra-territorial acts unless such application would violate due process. United States v. Pinto-Mejia, 720 F.2d 248, 259 (2d Cir.1983), modified on other grounds, 728 F.2d 142 (2d Cir.1984); Leasco Data Processing Equipment Corp. v. Maxwell, 468 F.2d 1326, 1334 (2d Cir.1972). Thomas does not contend that application of section 2251(a) to him denies him due process and there is no indication that it does. Whether 18 U.S.C. Sec. 2251(a) applies to Thomas' extraterritorial acts is, therefore, a question of statutory interpretation. See Blackmer v. United States, 284 U.S. 421, 437, 52 S.Ct. 252, 254, 76 L.Ed. 375 (1932).

Section 2251(a) does not explicitly state that it applies to conduct outside the United States. Cf., e.g., 21 U.S.C. Sec. 959 (1982) (statute banning manufacture and distribution of controlled substances by its terms "is intended to reach acts of manufacture or distribution committed outside the territorial jurisdiction of the United States"). But "[t]he exercise of [extraterritorial power] may be inferred from the nature of the offenses and Congress' other legislative efforts to eliminate the type of crime involved." United States v. Baker, 609 F.2d 134, 136 (5th Cir.1980). In Baker, the court construed 21 U.S.C. Sec. 841(a)(1) (1982), proscribing possession of controlled substances with intent to distribute. This statute does not explicitly state that it applies to extraterritorial conduct. The court held that it applies to possession outside the three mile limit of the United States' territorial waters if the defendant clearly intended to distribute the substances within the United States. The court noted that "[t]he power to control efforts to introduce illicit drugs into the United States from the high seas and foreign nations is a necessary incident to Congress' efforts to eradicate all illegal drug trafficking." Id. at 137.

Similarly in this case, Congress has created a comprehensive statutory scheme to eradicate sexual exploitation of children. See 18 U.S.C. Secs. 2241-2257. As part of that scheme, Congress has proscribed the

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transportation, mailing, and receipt of child pornography. Punishing the creation of child pornography outside the United States that is actually, is intended to be, or may reasonably be expected to be transported in interstate or foreign commerce 2 is an important enforcement tool. We, therefore, believe it likely that under section 2251(a) Congress intended to reach extraterritorial acts that otherwise satisfy the statutory elements.

Before concluding that section 2251(a) applies to Thomas' extraterritorial acts, however, we consider whether such application would violate international law. Although Congress is not bound by international law in enacting statutes, United States v. Aguilar, 883 F.2d 662, 679 (9th Cir.1989); Pinto-Mejia, 720 F.2d at 259; Leasco, 468 F.2d at 1334, out of respect for other nations, courts should not unnecessarily construe a congressional statute in a way that violates international law. See, e.g., Chua Han Mow v. United States, 730 F.2d 1308, 1311 (9th Cir.1984), cert. denied, 470 U.S. 1031, 105 S.Ct. 1403, 84 L.Ed.2d 790 (1985); United States v. Aluminum Co. of America, 148 F.2d 416, 443-44 (2d Cir.1945).

International law permits a country to apply its statutes to extraterritorial acts of its nationals. United States v. King, 552 F.2d 833, 851 (9th Cir.1976), cert. denied, 430 U.S. 966, 97 S.Ct. 1646, 52 L.Ed.2d 357 (1977); Restatement (Second) of Foreign Relations Law of the United States Sec. 30(1)(a). In this case counsel conceded at oral argument that Thomas is an American national. We, therefore, conclude that section 2251(a) applies to the acts on which Thomas' conviction for violating this section was based, whether or not Thomas committed those acts in the United States.

II. Sufficiency of the Indictment

Thomas claims that counts two and three of the indictment on which he was tried 3 are insufficient to support convictions for violations of sections 2252(a)(1) and 2252(a)(2) because these counts do not allege that he knew that the pornography he transported and received depicted a minor. Thomas also contends that count two of the indictment is insufficient because it failed to allege that he knowingly mailed the pornography. We review the sufficiency of an indictment de novo. See United States v. Normandeau, 800 F.2d 953, 958 (9th Cir.1986).

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A. Knowledge of the Victim's Age in Counts Two...

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