State v. Bruckner, 88-2051-CR

• Decision Date: 16 August 1989
• Docket Number: No. 88-2051-CR,88-2051-CR
• Citation: 447 N.W.2d 376,151 Wis.2d 833
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Daniel W. BRUCKNER, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 376

447 N.W.2d 376

151 Wis.2d 833

STATE of Wisconsin, Plaintiff-Respondent, v. Daniel W. BRUCKNER, Defendant-Appellant. ^d No. 88-2051-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs March 22, 1989.

Opinion Released Aug. 16, 1989.

Opinion Filed Aug. 16, 1989.

Donald J. Hanaway, Atty. Gen., with Barry M. Levenson and Thomas J. Balistreri, Asst. Attys. Gen., of counsel, Madison, on briefs, for plaintiff-respondent.

Shellow, Shellow & Glynn, S.C., with Stephen M. Glynn and Robert R. Henak of counsel, Milwaukee, on briefs, for defendant-appellant.

Before MOSER, P.J., and SULLIVAN and FINE, JJ.

FINE, Judge.

This case concerns child pornography, which--for the purposes of this decision--means the visual depiction of children "engaging in sexually explicit conduct," as defined by sec. 940.203(6), Stats. (1985-86). ¹ Thus defined, child pornography is not protected by the first amendment, New York v. Ferber, 458 U.S. 747, 760-761, 764, 102 S.Ct. 3348, 3356-3357, 3358, 73 L.Ed.2d 1113 (1982), even though it may not be legally obscene under the standards promulgated by the United States Supreme Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Ferber, 458 U.S. at 760-761, 764, 102 S.Ct. at 3356-3357, 3358. The parties do not contend otherwise.

Daniel W. Bruckner appeals from a judgment convicting him of seven counts of sexual exploitation of children in violation of sec. 940.203(4), Stats. (1985-86), which made it illegal for any person to "knowingly ... import ... any ... photograph ... or other reproduction of a child engaging in sexually explicit conduct." ² There was no evidentiary trial; no witnesses testified. Rather, the trial court based its findings of guilt on the parties' testimonial stipulation and related exhibits.

I. The Facts

On July 27, 1983, and between February and August of 1984, twenty-three different magazines mailed from Denmark and addressed to Bruckner at a Milwaukee post office box were seized by the United States Customs Service as obscene. See 19 U.S.C. sec. 1305 (1982). The magazines were inspected by a Customs Service special agent who believed, in the words of the parties' stipulation, that they contained "photographs of children engaged in sexually explicit activity with other children including fellatio, sodomy, masturbation and ejaculation." By letter dated July 27, 1983, Bruckner was notified of a seizure that day. Bruckner was similarly notified by the Customs Service of an August 14, 1984, seizure, and he consented to the magazine's administrative forfeiture. Another magazine, which had been seized on July 12, 1984, was placed in Bruckner's post office box on March 27, 1985.

Bruckner's post office box was kept under surveillance, and, on March 28, 1985, a Postal Service inspector saw "a white male" remove the magazine from the box. Two Customs Service special agents then saw Bruckner, the only person "in the vicinity" of the box, leave the post office with the magazine. They followed and saw him enter a house on North Terrace Avenue in Milwaukee. After twenty minutes, Bruckner left the house but was not seen carrying the magazine.

Later that afternoon, a Customs Service special agent went to the house on North Terrace Avenue with a search warrant that had been issued by a United States Magistrate. As expressed by the parties' stipulation, "[t]he search of [Bruckner]'s master bathroom resulted in the seizure of 146 magazines of foreign origin depicting photographs of children of various ages engaged in various sexual acts with themselves and others including sodomy, fellatio, masturbation, fondling and lewd exhibition of the genitals." The agent also seized ten items of correspondence between Bruckner and third persons. According to the stipulation, the correspondence discussed Bruckner's "interest in distributing, selling or trading copies of photographs of nude boys not engaged in sexual acts with themselves or others." ³ The agent also found "what was, in the agent's opinion, a fairly sophisticated photography lab" as well as negatives and undeveloped film.

Seven of the magazines seized from the house were examined by a physician specializing in pediatric endocrinology. He concluded that the age of the children pictured in the magazines ranged from ten or eleven to fifteen years of age.

Bruckner was charged with seven counts of sexual exploitation of children--one count for each magazine examined by the physician. The counts charged that on dates between June 1983 and December 1983, Bruckner did "knowingly and intentionally import photographs or other reproductions of a child engaging in sexually explicit conduct." On June 14, 1988, the trial court convicted Bruckner on all seven counts, and, after agreeing with the prosecutor and defense attorney that "this is not an incarceration case," imposed $5,000 fines for each count.

Bruckner raises five issues on appeal. First, he contends that the statute does not make the importation of child pornography for only personal use a crime (at sentencing, his lawyer referred to the place where the magazines were found as "a private fantasy closet"). ⁴ Second, Bruckner argues that if the statute does make the importation only for personal use a crime, it violates the Commerce Clause of the United States Constitution. Third, he submits that Wisconsin may not make the importation of child pornography into this state a crime because regulation of child pornography in interstate commerce has been preempted by federal law. Fourth, he argues that he was subjected to an illegal search because the magistrate lacked probable cause to issue the warrant, and that the magazines should be suppressed. See Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Finally, he contends that the trial court erred in not giving him a hearing on whether the affidavit submitted to the magistrate in support of the search warrant contained knowingly false statements or statements that were made with a reckless disregard for the truth. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). We address these issues in turn.

II. The Statute

Justice Felix Frankfurter pointed out more than forty years ago that "laws are not abstract propositions." Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum.L.Rev. 527, 533 (1947). Rather, "[t]hey are expressions of policy arising out of specific situations and addressed to the attainment of particular ends." Ibid. As Bruckner recognizes in his submissions here and before the trial court, sec. 940.203, Stats. (1985-86), was patterned after S. 1585, 95th Cong., 1st Sess. (1977), 1978 U.S.Code Cong. & Admin.News 40, which, with some changes not material here, was ultimately enacted into law as the Protection of Children Against Sexual Exploitation Act of 1977, Pub.L. No. 95-225, 92 Stat. 7 (1978), and, as material to our discussion, was codified at 18 U.S.C. secs. 2251-2253. ⁵ Thus, we may look to the Congressional committee reports on Public Law 95-225 to ascertain the purposes underlying the Wisconsin counterpart at issue here. See 2A Sutherland Statutory Construction sec. 52.02, at 522 (N. Singer 4th rev. ed. 1984). Cf. Wisconsin's Envtl. Decade, Inc. v. Public Serv. Comm'n, 79 Wis.2d 161, 174, 255 N.W.2d 917, 925 (1977) (appropriate to consider federal law construing federal statute upon which Wisconsin statute is patterned).

Public Law 95-225 resulted from committee hearings studying sexual exploitation of children. See S.Rep. No. 95-438, 95th Cong., 1st Sess. 4-5 (1977) [hereinafter, "Senate Report"], reprinted in 1978 U.S.Code Cong. & Admin.News 40, 41-42. The Senate Judiciary Committee reported:

[O]ne researcher ... has documented the existence of over 260 different magazines which depict children engaging in sexually explicit conduct....

Such magazines depict children, some as young as three to five years of age, in couplings with their peers of the same and opposite sex, or with adult men and women. The activities featured range from lewd poses to intercourse, fellatio, cunnilingus, masturbation, rape, incest and sadomasochism.

Id. at 5-6, 1978 U.S.Code Cong. & Admin.News at 43. The committee saw the need for federal action, but also anticipated increasing state response to what Senator Orrin G. Hatch noted was sordid activity that "surely reaches the depths of human depravity" and "inflict[s] irreparable damage on the victims for the rest of their lives." Id. at 10, 31, 1978 U.S.Code Cong. & Admin.News at 48, 65. Section 940.203, Stats., addressed this problem for Wisconsin.

Section 940.203(4), Stats. (1985-86), provided:

No person may knowingly produce, perform in, profit from, promote, import, reproduce, advertise, sell, distribute, or possess with intent to sell or distribute, any undeveloped film, photographic negative, photograph, motion picture, videotape, sound recording or other reproduction of a child engaging in sexually explicit conduct. [Emphasis added.] ⁶

Each violation of sec. 940.203, Stats. (1985-86), was a Class C felony, punishable by a prison term not to exceed 10 years, a fine not to exceed $10,000, or both. Secs. 940.203(5) and 939.50(3)(c), Stats. (1985-86).

Bruckner argues that the word "import" in sec. 940.203(4), Stats. (1985-86), contains an essential commercial or distributional component and that, therefore, he may not be punished for bringing child pornography into Wisconsin for his personal use. As a subsidiary argument, he contends that penal statutes like sec. 940.203(4) should be strictly construed and interpreted in his favor. See State v. Tronca, 84 Wis.2d 68, 80, 267 N.W.2d 216, 221 (1978). ⁷

A.

A legislature "expresses its purpose by words" 62 Cases of Jam v. United States, 340 U.S. 593, 596, 71 S.Ct. 515, 518, 95 L.Ed. 566 (1951) (Frankfurter, J.). We must, therefore, construe what has been written: "It is for us to ascertain--neither to add nor to subtract,...