934 F.2d 393 (2nd Cir. 1991), 899, United States v. Chin

Docket Nº:899, Docket 90-1503.
Citation:934 F.2d 393
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Edward CHIN, Defendant-Appellant.
Case Date:May 02, 1991
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 393

934 F.2d 393 (2nd Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,

v.

Edward CHIN, Defendant-Appellant.

No. 899, Docket 90-1503.

United States Court of Appeals, Second Circuit

May 2, 1991

Argued Feb. 26, 1991.

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Louis M. Freeman, New York City (Freeman, Nooter & Ginsberg, of counsel), for defendant-appellant.

Martin E. Coffey, Asst. U.S. Atty., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty., E.D.N.Y., of counsel), for plaintiff-appellee.

Before OAKES, Chief Judge, LUMBARD and CARDAMONE, Circuit Judges.

OAKES, Chief Judge:

Edward Chin appeals from a judgment of the United States District Court for the Eastern District of New York, Reena Raggi, Judge, convicting him of one count of transportation of child pornography in foreign commerce and one count of transportation of child pornography in interstate commerce, in violation of 18 U.S.C. Sec. 2252(a)(1) (1988). On this appeal, he argues that the postal authorities' investigative technique violated due process, and that the district court's admission of certain evidence was harmful error. For the reasons set forth below, we affirm.

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FACTS

In early 1986, the United States Postal Inspection Service commenced an undercover investigation of the child pornography industry. As part of that investigation, postal inspectors established fictitious companies and pen pal clubs to identify persons interested in receiving child pornography. One of those companies was Far Eastern Trading ("Far Eastern"), which purported to be a distributor of child pornography.

Later that year, Chin received a mailing from Far Eastern, promising a safe and legal way for United States citizens to receive child pornography in the mail. The Government never explained why Chin was sent this mailing; Chin suggested that he was targeted because he had previously responded to other advertisements from companies that distributed adult pornographic literature. Eventually, Chin ordered two magazines from Far Eastern's catalogue. Those magazines, however, were never delivered.

Thereafter, undercover Postal Inspector John McDermott, having obtained Chin's name and address from a list of Far Eastern customers, arranged for his fellow inspectors to send Chin a solicitation letter and questionnaire under the name of another fictitious entity, the Candy Love Club ("CLC"). That mailing asked Chin to identify his sexual practices and interests, including whether he was interested in receiving materials dealing with child pornography. Chin completed the questionnaire, listing "Pre-Teen sex--Heterosexual" as his top preference, and mailed it to the address used by the undercover inspectors.

By submitting the questionnaire, Chin became a member of CLC, and began to receive regular copies of its newsletter. This newsletter--which in reality was a publication created and published by postal inspectors--contained advertisements from individuals interested in a variety of sexually-oriented materials, including child pornography. 1 Chin responded to several advertisements in the CLC newsletter and indicated that he was interested in trading "kinky" photographs of women, magazines containing such photographs, and photographs and magazines depicting teenagers and pre-teens.

On May 19, 1988, McDermott, posing as "Ted from Medford," wrote to Chin and told him that he had many "hot photos of girl subjects both white and oriental, pre-teen and teen." Chin testified that, at the time he received this letter, he was lonely and beset with a variety of personal problems, including the illness of his father and a recent divorce. In order to impress McDermott and win his friendship, Chin testified, he responded to the letter with a fictitious list of pornographic materials that he claimed to possess.

After exchanging several letters describing their respective collections, McDermott suggested that they loan each other magazines to copy. Chin, however, had serious reservations about going through with this arrangement. In a letter to McDermott, Chin stated that he had heard about a government sting operation involving Far Eastern and about the Postal Service's efforts to prevent individuals from sending child pornography through the mails. "Believe me," he wrote, "I am dying to see the magazine you mentioned, but I'm not sure that I'm ready to risk destroying my life at this point."

Feigning sympathy with Chin's concerns, McDermott sent letters inquiring about Chin's health and spirits and extending holiday greetings. On January 23, 1989, Chin wrote McDermott thanking him for his expressions of personal concern. He also confided that he would be travelling to Amsterdam, and invited McDermott to "let [him] know if [McDermott] might want anything or if [McDermott had] any contacts there that might be helpful in searching out Lolita material or even meeting them." On two occasions, McDermott wrote back to Chin encouraging him to

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proceed with the trip. Specifically, he stated:

Let me know if you're going to [Europe or Asia] and I'll send you some money for some Lolita material for me, if you don't mind.

Definitely bring something back for me. Either the most recent Lolita magazine available or any 8 mm film you'd think I'd [sic] might like. I will gladly reimburse you when you return.

Chin proceeded with his trip and purchased several magazines.

In a March 29, 1989 letter to Chin, McDermott enclosed photocopies of two magazine covers that he planned to send Chin. A few weeks later, Chin sent McDermott a copy of one of the magazines he had purchased in Amsterdam, entitled "Schoolgirls." On August 28, 1989, in response to this mailing, McDermott and several other inspectors arrested Chin at his home. After being confronted with the copy of "Schoolgirls," Chin consented to a search of the briefcase where he kept the remainder of his pornographic materials. The search turned up two magazines, entitled "Lolita, Number 50" and "Nymphettes," an envelope from Far Eastern, a coding card from CLC used to decipher the advertisements in the club's newsletter, letters from McDermott, and the photocopies that had accompanied McDermott's March 29 letter.

At a pretrial hearing, Chin moved to dismiss the indictment on the ground that the Government had failed to demonstrate that it had either probable cause or reasonable suspicion to target him for an undercover operation. The court denied the motion, and the case proceeded to trial. At trial, Chin raised the defense of entrapment.

Part of the Government's evidence consisted of a Notice and Assent to Forfeiture (the "Notice") relating to the forfeiture of a magazine entitled "Seventeen's Teenager," which was addressed to Chin and which had been seized by the United States Customs Service in 1986 prior to delivery. Although Chin acknowledged that he had ordered the magazine, he argued that he was unaware that the magazine contained child pornography. Relying on a statement in the Notice providing that assent to forfeiture was "neither an acknowledgment that the materials being forfeited were solicited nor an admission that [the addressee] knew they were obscene," Chin moved to prohibit introduction of the Notice. His motion was denied, on the ground that, "by signing [the Notice], where it says signature of importer, it can fairly be seen as an admission that [Chin] was the importer of this document." In its summation, the Government relied on the Notice as evidence of Chin's predisposition, and the court instructed the jury that it could consider the Notice in deciding whether Chin was "predispos[ed] or willing[ ] to engage in the criminal charges in the indictment."

The jury returned a verdict of guilty, and Chin was sentenced to concurrent terms of 52 weekends of imprisonment, three years' supervised release conditioned on obtaining psychiatric treatment, a $15,000 fine, and a $100 special assessment. He was also directed to pay the costs of his imprisonment and supervised release. This appeal followed.

DISCUSSION

Chin raises three claims on appeal. First, he argues that the postal authorities violated his right to privacy by targeting him for an undercover investigation without an individualized basis for suspecting him of wrongdoing. Second, he claims that the conduct of the postal authorities during the course of the investigation violated the Due Process Clause. Finally, he claims that the court's decision to admit the Notice as evidence of his predisposition constituted harmful error. For the reasons set forth below, we reject all of these claims.

  1. Requirement of Individualized Suspicion

    Chin's first contention is that his right to privacy was violated when the postal authorities targeted him for an undercover operation without any basis for suspecting that he was engaged in or was likely to engage in a crime. According to Chin, the suspicionless instigation of an investigation

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    against him violated his "right to be let alone," a right Justice Brandeis characterized as "the most comprehensive of rights and the right most valued by civilized men." Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting). We do not agree.

    Initially, it is undisputed that McDermott's conduct did not infringe on Chin's privacy interests as protected by the Fourth Amendment. Recognizing the inapplicability of the Fourth Amendment to his claim, Chin relies instead on the privacy guarantees incorporated in the Fourteenth Amendment's Due Process Clause. The requirement that police activity be based on individualized suspicion, however, is directly rooted in the Fourth Amendment's prohibition on unreasonable searches and seizures, see, e.g., Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1875, 20 L.Ed.2d 889 (1968) (relying on the Fourth Amendment right to "personal security"), and the Supreme Court has routinely upheld suspicionless police...

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