U.S. v. Arvin, 87-1220

• Citation: 900 F.2d 1385
• Decision Date: 12 April 1990
• Docket Number: No. 87-1220,87-1220
• Parties: 30 Fed. R. Evid. Serv. 238 UNITED STATES of America, Plaintiff-Appellee, v. Michael ARVIN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1385

900 F.2d 1385

30 Fed. R. Evid. Serv. 238

UNITED STATES of America, Plaintiff-Appellee, v. Michael ARVIN, Defendant-Appellant.

No. 87-1220.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 12, 1988.

Decided April 12, 1990.

Charles R. Garry, San Francisco, Cal., for defendant-appellant.

Sanford Svetcov, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee.

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

Before FLETCHER, BEEZER and O'SCANNLAIN, Circuit Judges.

FLETCHER, Circuit Judge:

Michael Arvin appeals his conviction and sentence under 18 U.S.C. Sec. 2252(a)(1) for mailing three photographs of minor females engaged in sexually explicit conduct. His appeal presents several issues revolving around the meaning of the statutory term "lascivious." We must decide whether this term incorporates a standard of obscenity, whether expert testimony on the issue of "lasciviousness" should have been allowed, and whether the district court correctly instructed the jury on the definition of this term. Arvin also raises issues concerning the denial of his motion to dismiss

the indictment, the severity of his sentence, and prosecutorial misconduct. We affirm.

FACTS

Arvin stipulated at trial that he knowingly mailed three photocopied photographs of nude female children to undercover officer Jeffrey Miller. Arvin mailed the pictures in response to an advertisement seeking a pedophile correspondent placed by Miller in Swinger's Digest. The photocopies were of pictures he had purchased several years earlier. Arvin was not the photographer, nor did he seek financial compensation from Miller. All three pictures show apparently prepubescent girls completely nude, facing the camera with their legs apart so as to expose their genitals. The pictures were captioned "Lolita-Sex," "Skoleborn-School Children," and "Little Girls F--k too."

A two-count indictment ¹ was returned on August 22, 1986. Arvin's motion to dismiss the indictment was denied on February 6, 1987. The government's motion in limine to exclude expert witnesses on the question of whether the pictures were "lascivious" was granted on March 13, 1987. Jury trial began on April 6, 1987. Because Arvin stipulated that he knowingly mailed the photocopies, the prosecution's case consisted of little more than introducing the pictures into evidence. Arvin raised no affirmative defenses. The jury found Arvin guilty on both counts, and the court sentenced him to three years imprisonment, to be followed by three years probation.

18 U.S.C. Sec. 2252(a) punishes:

Any person who ... knowingly ... mails any visual depiction, if--

(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and

(B) such visual depiction is of such conduct ...

18 U.S.C. Sec. 2256(1) defines a "minor" as "any person under the age of eighteen years." Sec. 2256(2) defines "sexually explicit conduct" to include various specific sexual activities not depicted in any of Arvin's pictures, as well as the "lascivious exhibition of the genitals or pubic area of any person." "Lascivious" is not defined.

ANALYSIS

I. Background

The constitutional limitations on the regulation of child pornography were first spelled out in New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). Ferber held that pornographic depictions of children lack First Amendment protection even if the depictions are not "obscene." Unlike obscenity laws, which aim to protect "the sensibilities of unwilling recipients," Miller v. California, 413 U.S. 15, 18-19, 93 S.Ct. 2607, 2611-12, 37 L.Ed.2d 419 (1973), child pornography laws aim to protect the children themselves from sexual exploitation and abuse. Ferber, 458 U.S. at 757, 102 S.Ct. at 3354. Therefore, "community standards," "redeeming value," and "prurient interest" tests are not relevant in determining what constitutes child pornography:

[T]he question under the Miller test of whether a work, taken as a whole, appeals to the prurient interest of the average person bears no connection to the issue of whether a child has been physically or psychologically harmed in the production of the work. Similarly, a sexually explicit depiction need not be "patently offensive" in order to have required the sexual exploitation of a child for its production.... "It is irrelevant to the child [who has been abused] whether or not the material ... has a literary, artistic, political or social value." ... It would be equally unrealistic to equate a community's toleration for sexually oriented material with the permissible scope of legislation aimed at protecting children from sexual exploitation.

Ferber, at 761 & n. 12, 102 S.Ct. at 3356-57 & n. 12 (citations omitted). Ferber recognizes a broad power in legislatures to prohibit After the decision in Ferber, Congress amended the federal child pornography laws in several ways. ² The mailing no longer must be for commercial purposes. The depictions need not be obscene. The age of majority was raised from 16 to 18. Most importantly for this case, Congress replaced the term "lewd" with "lascivious" in Sec. 2256(2)(E), noting:

nude depictions of minors as needed to prevent child abuse.

"Lewd" has in the past been equated with "obscene"; this change is thus intended to make it clear that an exhibition of a child's genitals does not have to meet the obscenity standard to be unlawful.

Remarks of Senator Specter, 130 Cong.Rec. S3510, S3511, March 30, 1984, quoted in United States v. Dost, 636 F.Supp. 828, 831 (S.D.Cal.1986). The constitutionality of this change, as against a vagueness challenge, was upheld in United States v. Wiegand, 812 F.2d 1239, 1243 (9th Cir.) (affirming Dost ), cert. denied, 484 U.S. 856, 108 S.Ct. 164, 98 L.Ed.2d 118 (1987); see also United States v. Freeman, 808 F.2d 1290, 1292 (8th Cir.), cert. denied, 480 U.S. 922, 107 S.Ct. 1384, 94 L.Ed.2d 697 (1987); United States v. Rubio, 834 F.2d 442, 447-48 (5th Cir.1987). ³

II. Arvin's Motion to Dismiss the Indictment

Arvin argues that the district court erred in refusing to dismiss the indictment. This motion turned on the district court's legal interpretation of the statute and therefore is reviewed de novo. Cf. United States v. Smith, 795 F.2d 841, 845 (9th Cir.1986), cert. denied, 481 U.S. 1032, 107 S.Ct. 1964, 95 L.Ed.2d 535 (1988). Arvin presents a two-pronged argument. First, he contends that since he had no commercial motivation, the statute could not constitutionally or by its terms apply to him. This argument lacks merit in light of the amendment to Sec. 2252 eliminating the "commercial purpose" requirement, and in light of Ferber 's recognition of broad legislative authority to regulate child pornography as necessary to prevent child abuse. Nor does the defendant have to be engaged in distribution; even a mailing of photographs to a developer, for purely personal use, will suffice for conviction. United States v. Smith, 795 F.2d at 845-46.

Arvin's second argument is that the photos were not "lascivious" as a matter of law. We reject this characterization of the pictures. While it is arguable that the pictures are not, in fact, lascivious, the district court did not err in refusing to dismiss the indictment on this basis. The issue of lasciviousness was properly allowed to go to the jury.

III. Expert Testimony

Arvin argues that he was deprived of a fair trial by not being allowed to present expert testimony on the issue of whether the pictures were lascivious. The admissibility or exclusion of expert testimony Arvin makes two arguments. First, he argues that the evidence should have been admitted under Fed.R.Evid. 702. Second, he contends that the evidence should have been admitted to avoid a violation of the First Amendment.

is within the discretion of the trial court, and is reversible only for abuse of discretion or manifest error. United States v. Langford, 802 F.2d 1176, 1179-80 (9th Cir.1986) (although expert testimony concerning eyewitness identification is often useful, its exclusion is within the discretion of the trial court), cert. denied, 483 U.S. 1008, 107 S.Ct. 3235, 97 L.Ed.2d 740 (1987). The benchmark for exclusion is whether the proffered testimony would usurp the function of the jury. Id.

Rule 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

The Rule by its own terms merely allows the use of expert testimony ("may testify"). "Whether the situation is a proper one for the use of expert testimony is to be determined on the basis of assisting the trier." Advisory Committee Note to Rule 702; see also United States v. Christophe, 833 F.2d 1296, 1299 (9th Cir.1987) (whether jury will receive "appreciable help" from the expert testimony).

Arvin argues that experts would have appreciably assisted the jury here because (1) child pornography is "highly emotional and provocative," and juries are invariably "highly biased"; (2) there is a "lack of public understanding and knowledge of matters affecting sexual behavior"; and (3) the jury should be able to compare other nude photographs of children, with expert guidance. The experts would discuss "appropriate" places and poses where a child could be depicted nude without the depiction being lascivious.

We disagree. The expert testimony either would not have been directed at any legally relevant factors or would have impinged on the jury's function. According to Arvin's offer of proof, the experts would have testified that a photo is not lascivious unless the child is showing a willingness to engage in sexual conduct, actually engaging in sexual conduct, or demonstrating an erotic reaction. This is simply...