U.S. v. Moore

• Citation: 916 F.2d 1131
• Decision Date: 27 November 1990
• Docket Number: No. 89-6581,89-6581
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Greg MOORE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 1131

916 F.2d 1131

3 Fed.Sent.R. 206

UNITED STATES of America, Plaintiff-Appellee, v. Greg MOORE, Defendant-Appellant.

No. 89-6581.

United States Court of Appeals,

Sixth Circuit.

Argued July 23, 1990.

Decided Oct. 26, 1990.

Rehearing Denied Nov. 27, 1990.

Joe B. Brown, U.S. Atty. (argued), Wendy Goggin, Asst. U.S. Atty., Nashville, Tenn., for plaintiff-appellee.

Vincent E. Wehby (argued), Nashville, Tenn., for defendant-appellant.

Before KEITH and GUY, Circuit Judges, and BROWN, Senior Circuit Judge.

KEITH, Circuit Judge.

Defendant Greg Moore ("Moore") appeals from the district court's December 8, 1989 judgment and commitment orders finding him guilty of knowingly receiving, through the United States mail, a video tape containing visual depictions of minors engaged in sexually explicit conduct. For the reasons stated below, we AFFIRM and REMAND.

I.

A.

On April 12, 1989, Moore was indicted by the Federal Grand Jury of the Middle District of Tennessee. In a single count, the indictment charged Moore with knowingly receiving a video tape containing visual depictions of minors engaged in sexually explicit conduct, as defined by 18 U.S.C. Sec. 2256. ¹ The video tape was transported, through the United States mail, from the seller, who was located in Nashville, Tennessee, to Moore, the buyer who resided in Corryton, Tennessee, all in violation of 18 U.S.C. Sec. 2252(a)(2). ²

Moore filed a motion to dismiss on July 27, 1989, alleging entrapment, outrageous government conduct, lack of predisposition, and the inapplicability of Sec. 2252 to a single act of ordering child pornography. After receiving the Government's response and conducting a hearing on August 28, 1989, the district court denied Moore's motion to dismiss on September 8, 1989.

On September 12, 1989, the trial date, the parties filed a plea agreement with the district court. The district court, however, did not accept the plea:

THE COURT: I'm not going to accept this 11(E)(1)(C) [sic] ³ on the day of trial. Today is the day appointed to dispose of the case. We are here, the venire is here, ready to select a jury. And it's a matter of either trying the case or otherwise, whatever your choice may be, today is the date we are supposed to dispose of the case.

Joint Appendix at 129 (hereinafter "J.A."). The district court initiated the trial as originally scheduled and, on September 15, 1989, the jury returned a guilty verdict. Moore remained free on bond until he was sentenced, on December 8, 1989, to fifteen months of incarceration, followed by three years of supervised release. ⁴

Moore filed a timely notice of appeal on December 21, 1989.

B.

In early 1988, Moore, a married, twenty-nine year old bank employee, purchased a copy of Adult Video News, an adult publication which lists individuals and companies that sell sexually explicit video tapes. While reading Adult Video News, Moore saw an advertisement which had been placed by A & B Video Company ("A & B"), a privately owned, sexually explicit video store which had been cooperating with undercover officers of the Orange County, Florida Sheriff's Department. Moore subsequently requested and received A & B's catalog, which contained a two-line advertisement placed by the undercover officers: "Looking for bizarre videos and photos, taboo material, want young girls, family or incest videos. Will trade for like material. Write Bryant, P.O. Box 617379, Orlando, Florida 32861, or call 407-427-2407." J.A. at 44.

Responding to the advertisement, Moore mailed an index card addressed to A & B, postmarked July 20, 1988, which said: "Bryant, please send me information on the following [sic], horse, dogs, children and fists." J.A. at 45. After mailing the card, Moore realized that he had sent it to the wrong address. He telephoned "Bryant" and "Carl," but remained unaware that they were undercover officers. ⁵ On July 28, 1988, Moore sent a second letter to the officers to clarify his interests. Moore wrote that he was interested in purchasing video tapes containing: pre-teen to fifteen year-old girls making love with men either vaginally, anally or orally; pre-teen to fifteen year-old girls with adult women; lesbian scenes; and various other pornographic depictions. Moore wrote in the margin of his letter "Please destroy" and added "have still nude and action photos of seventeen year old and adult male, Polaroid ..." J.A. at 46.

During the next six months, Moore continued to call the telephone number listed in the advertisement to speak with Bryant or Carl. On August 20, 1988, Moore mailed a package to Bryant which contained a roll of undeveloped film. Carl developed the film and found that it depicted a seventeen year-old female engaged in explicit sexual acts with an adult male. Carl then made photocopies of the sexually explicit photographs and sent the negatives and photographs back to Moore. Even though Moore told Carl that the photographs depicted a minor female, Carl had no independent evidence of the female's age and determined there was insufficient evidence to prosecute.

Because the Orange County undercover operation was a local operation, Carl notified Postal Inspector Perry LePere ("Inspector LePere") in Nashville, Tennessee of his contacts with Moore. Inspector LePere advised Carl that the Postal Inspection Service and the Federal Bureau of Investigation ("FBI") had established a joint federal undercover operation to investigate child pornography in Nashville. Inspector

LePere continued that he would be working with FBI agent Brad Garrett ("Agent Garrett") in the joint operation. ⁶

In September 1988, Moore telephoned Carl. Carl informed Moore that he could no longer deal with him, but that he had a source in Nashville who might meet Moore's needs. On January 25, 1989, Carl telephone Moore and gave him the number of the federal undercover operation, which Carl described as the "Nashville source." Carl instructed Moore to ask for "Tom." ⁷

On January 26, 1989, Moore telephoned Tom and explained that he had been referred by Carl and wanted to purchase some videos. When Tom asked what Moore was looking for in particular, Moore replied "Ah, young women. Ah, teen, pre-teen type stuff." Moore stated that he was looking for the below fifteen years-old age group. He also requested action shots with women and young girls. Moore then asked Tom to develop 35 mm color action shots of twelve and thirteen year-old girls that he had photographed in the "project areas" of town.

In a January 26, 1989 letter, Tom mailed three documents to Moore: (1) a description of the film known as YL-62; (2) a description of the film known as YL-107; and (3) a preprinted form describing film processing costs. Film YL-62 was a bestiality tape with a horse and a woman priced at $65; and Film YL-107 was a tape containing six scenarios of child pornography priced at $275. In his letter, Tom explained that upon receiving Moore's order form and payment, he would send the videos to Moore by registered mail.

On February 15, 1989, Moore mailed a copy of the Film YL-62 (the bestiaity tape) description, an order form and a personal check for $65 to Tom. Film YL-62 was then mailed to Moore. On March 10, 1989, Moore mailed "Young Services" ⁸ the Film YL-107 (the child pornography tape) order sheet, dated and signed "Greg Moore," as well as his payment totaling $275. ⁹

On March 15, 1989, Film YL-107 was prepared by Inspector LePere for controlled delivery to Moore. Inspector

LePere packaged the tape in an Express Mail envelope; addressed the envelope to Moore; affixed the proper postage; drove to Corryton, Tennessee and hand delivered the envelope to the Corryton postmaster. The Corryton postmaster then placed a note in Moore's Post Office Box that a piece of mail had arrived that was too large to fit in the box. After Moore picked up the package from the Post Office, he was arrested by Inspector LePere. Following his arrest, Moore consented to a search of his residence, which revealed a substantial library of adult pornographic magazines and video tapes, but no child pornography.

II.

When reviewing the sufficiency of the evidence supporting a criminal conviction, "we must reverse only if the evidence is such that a reasonable mind could not find guilt beyond a reasonable doubt." United States v. Stull, 743 F.2d 439, 442 (6th Cir.1984), cert. denied, 470 U.S. 1062, 105 S.Ct. 1779, 84 L.Ed.2d 838 (1985). The evidence must be viewed in the light most favorable to the Government. United States v. Johnson, 855 F.2d 299, 303 (6th Cir.1988).

A.

On appeal, Moore argues the district court abused its discretion by rejecting his guilty plea without " 'articulat[ing] a sound reason for rejecting the plea.' " Brief on Behalf of Defendant-Appellant at 48, United States v. Moore (6th Cir.1990) (No. 89-6581) (quoting United States v. Delegal, 678 F.2d 47, 50 (7th Cir.1982)). The Government counters that the district court "has broad discretion in deciding whether to accept a guilty plea and is under no duty to accept a negotiated plea agreement and need not state any reasons for rejecting a plea." Brief on Behalf of Plaintiff-Appellee at 34, United States v. Moore (6th Cir.1990) (No. 89-6581) (citing United States v. Moore, 637 F.2d 1194, 1196 (8th Cir.1981)).

The Government is correct in stating that the district courts have broad discretion in deciding whether or not to accept a plea agreement. See Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971) (citing Lynch v. Overholser, 369 U.S. 705, 719, 82 S.Ct. 1063, 1072, 8 L.Ed.2d 211 (1962)). See also United States v. Yates, 698 F.2d 828, 829-30 (6th Cir.1983). We do not agree, however, with the Government that the district court "need not state any reasons for rejecting a plea." Brief on Behalf of Plaintiff-Appellee at 34. Although that rule was adopted by the Eighth Circuit in United States v. Moore, 637 F.2d 1194, 1196 (8th Cir.1981) (stating that a...