Gilmour v. Rogerson

• Decision Date: 04 September 1997
• Docket Number: No. 96-2027,96-2027
• Citation: 117 F.3d 368
• Parties: Gary C. GILMOUR, Petitioner-Appellant, v. Rusty ROGERSON, Warden, Iowa Medical Classification Center; Thomas Miller, Attorney General of the State of Iowa, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 368

117 F.3d 368

Gary C. GILMOUR, Petitioner-Appellant, v. Rusty ROGERSON, Warden, Iowa Medical Classification Center Thomas Miller, Attorney General of the State of Iowa, Respondents-Appellees.

No. 96-2027.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 17, 1997.

Decided June 27, 1997.

Rehearing and Suggestion for Rehearing En Banc Denied Sept.

4, 1997. ^*

Gary K. Koos, Davenport, IA, argued, for petitioner-appellant.

Thomas D. McGrane, Assistant Attorney General, Des Moines, IA, argued, for respondents-appellees.

Before LOKEN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and GUNN, ^** District Judge.

LOKEN, Circuit Judge.

In New York v. Ferber, 458 U.S. 747, 765, 102 S.Ct. 3348, 3358-59, 73 L.Ed.2d 1113 (1982), the Supreme Court upheld a broad child pornography statute but cautioned that, "[a]s with obscenity laws, criminal responsibility may not be imposed without some element of scienter on the part of the defendant." In United States v. X-Citement Video, Inc., 513 U.S. 64, 78, 115 S.Ct. 464, 472, 130 L.Ed.2d 372 (1994), the Court cited that caution as "suggest[ing] that a [child pornography] statute completely bereft of a scienter requirement as to the age of the performers would raise serious constitutional doubts." In this habeas case, we must explore those constitutional doubts, for Iowa inmate Gary C. Gilmour argues that his conviction for sexual exploitation of a seventeen-year-old minor violates the First Amendment because the Iowa courts denied him a mistake-of-age defense. Like the district court, ¹ we disagree and therefore affirm.

I.

The Supreme Court of Iowa described the criminal conduct at issue in State v. Gilmour, 522 N.W.2d 595, 596 (Iowa 1994):

Gilmour is a professional photographer in Davenport specializing in weddings and "boudoir" work. He was introduced to a seventeen-year-old woman named Cassandra by her boyfriend. Cassandra ... and Gilmour met at a bar where they discussed the possibility of her posing for nude photographs.... Gilmour suggested that he could arrange for Cassandra to dance at bachelor parties and perform sex for money at those parties. According to Cassandra, Gilmour took nude photographs of her and her boyfriend engaging in sex acts.... Gilmour testified that he had asked Cassandra's boyfriend how old she was and was told that she was twenty-two. He further claimed to have independently verified Cassandra's age by viewing her driver's license.

Cassandra testified that she later told Gilmour that she wanted to obtain the explicit photos taken of her and the negatives. Gilmour suggested that she could have the photographs if she would agree to seduce a pizza deliveryman. Arrangements were made to have Cassandra order a pizza, meet the deliveryman at the door in the nude, and entice him to have sex. This plan was carried out. Gilmour, however, refused to return the photographs unless Cassandra also had sex with him. That also occurred, and Gilmour still retained at least some of the photographs.

The jury convicted Gilmour of pandering, a conviction not at issue on this appeal, and also convicted him of violating Iowa Code § 728.12(1). That statute defines sexual exploitation of a minor to include any person who

employs, uses, persuades, induces, entices, coerces, knowingly permits, or otherwise causes a minor to engage in a prohibited sexual act or in the simulation of a prohibited sexual act if the person knows, has reason to know, or intends that the act or simulated act may be photographed, filmed, or otherwise preserved in a negative, slide, book, magazine, or other print or visual medium.

Prior to his trial, and again on direct appeal, Gilmour argued that this statute must be read to include knowledge of the minor's age as an element of the offense in order to save it from First Amendment infirmity. Otherwise, Gilmour reasoned, the statute would impermissibly chill expressive activity protected by the First Amendment, namely, the production of adult pornography. Rejecting that contention, the trial court excluded all evidence that Gilmour mistakenly believed Cassandra to be an adult.

The Iowa Supreme Court affirmed, concluding (i) that knowledge of age is not an element of the crime of sexual exploitation of a minor, (ii) that mistake of age is not a defense, and (iii) that so construed, § 728.12(1) does not violate the First Amendment because the statute is intended to combat child pornography and is aimed at conduct rather than expression. Gilmour, 522 N.W.2d at 597-98. The district court denied Gilmour's habeas petition and he appeals.

II.

"Few areas of criminal law pose more difficulty than the proper definition of the mens rea required for any particular crime." United States v. Bailey, 444 U.S. 394, 403, 100 S.Ct. 624, 631, 62 L.Ed.2d 575 (1980). In general in this country, infamous crimes are construed as requiring proof of mens rea--the "concurrence of an evil-meaning mind with an evil-doing hand"--even when the statutes defining those crimes are silent on the question. Morissette v. United States, 342 U.S. 246, 251, 72 S.Ct. 240, 243-44, 96 L.Ed. 288 (1952). In construing criminal statutes that protect children from sexual predators, however, the child's age is a long-established exception to the general rule that proof of mens rea is required; "the victim's actual age [is] determinative despite defendant's reasonable belief that the girl had reached the age of consent." Id. at 251 n. 8, 72 S.Ct. at 244 n. 8. Thus, absent First Amendment considerations, it seems clear that Iowa may constitutionally define criminal sexual exploitation of a child so as to preclude inquiry into whether defendant believed the child was an adult. ²

Turning to those First Amendment considerations, we find long-standing Supreme Court concern with the mens rea required in obscenity cases, where conduct is criminal if it involves obscene materials but is constitutionally protected if it does not. In an early obscenity case, the Court struck down a state statute that made booksellers strictly liable for possessing obscene writings. "[I]f the bookseller is criminally liable without knowledge of the contents [of an obscene book]," the Court explained, "he will tend to restrict the books he sells to those he has inspected; and thus the State will have imposed a restriction upon the distribution of constitutionally protected as well as obscene literature." Smith v. California, 361 U.S. 147, 153, 80 S.Ct. 215, 218, 4 L.Ed.2d 205 (1959). As defined in later cases, this constitutional mens rea requirement is satisfied if the defendant knows the contents of the obscene materials and their "character and nature"; he need not know they are legally obscene. Hamling v. United States, 418 U.S. 87, 123-24, 94 S.Ct. 2887, 2910-11, 41 L.Ed.2d 590 (1974).

In Ferber, the Court comprehensively addressed the subject of child pornography. A Manhattan shopkeeper sold two films depicting young boys masturbating to an undercover police officer. He was convicted of promoting a sexual performance by a child, defined to include "any performance ... which includes sexual conduct by a child less than sixteen years of age." Ferber, 458 U.S. at 751, 102 S.Ct. at 3351. The Court granted certiorari to consider the constitutionality of that statute. Noting that the exploitation of children in the production of pornography is both harmful and pervasive, the Court declared that "[t]he prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance." Id. at 757, 102 S.Ct. at 3355. The Court held that child pornography is unprotected by the First Amendment and generally defined child pornography as extending beyond obscene materials to include "works that visually depict [suitably limited and described] sexual conduct by children below a specified age." Id. at 764, 102 S.Ct. at 3358. The Court held that the New York statute was not substantially overbroad and may be applied to those who knowingly distribute child pornography.

By defining child pornography to include sexually explicit films and photographs that are not obscene, Ferber set the stage for the issue in this case. Gilmour concedes that in photographing Cassandra he produced unprotected child pornography. He does not challenge the purposes behind banning the production of child pornography--to reduce financial incentives that encourage sexual exploitation of children and to deter production of visual depictions that exacerbate psychological harm to the child victims. See Ferber, 458 U.S. at 757-59, 102 S.Ct. at 3354-56. But the photographing of nude adults engaged in sexually explicit conduct retains First Amendment protection unless in fact obscene. Indeed, however offensive to most, the sale and distribution of such materials is a large, thriving industry. Therefore, Gilmour argues, absent a mistake-of-age defense, the Iowa statute will chill producers of protected adult pornography from photographing young adults. To prevail on this theory, Gilmour must show that the statute's overbreadth is "substantial." Ferber, 458 U.S. at 769, 102 S.Ct. at 3361; see Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). Analysis of this question requires, as additional background, review of two relevant post-Ferber decisions.

On appeal, Gilmour relies almost entirely on United States v. United States Dist. Court, 858 F.2d 534 (9th Cir.1988). In that case, the government sought a writ of mandamus prohibiting the district court from admitting evidence that a sixteen-year-old girl hired to appear in a pornographic movie had perpetrated a massive fraud on the "adult entertainment industry" by passing herself off as an adult. At issue was a federal statute, 18 U.S.C. § 2251(a), which prohibits the production of materials depicting a minor engaged in sexually explicit activity if the defendant knows that the visual depiction will be transported in commerce. A...