U.S. v. Boos

• Decision Date: 07 November 1997
• Docket Number: No. 96-50404,96-50404
• Citation: 127 F.3d 1207
• Parties: 97 Cal. Daily Op. Serv. 8533, 97 Daily Journal D.A.R. 13,787 UNITED STATES of America, Plaintiff-Appellee, v. Hans BOOS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1207

127 F.3d 1207

97 Cal. Daily Op. Serv. 8533, 97 Daily Journal

D.A.R. 13,787

UNITED STATES of America, Plaintiff-Appellee, v. Hans BOOS, Defendant-Appellant.

No. 96-50404.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 8, 1997.

Decided Nov. 7, 1997.

Kenneth M. Miller, Law Office of Kenneth M. Miller, Santa Ana, California, for defendant-appellant.

Patricia A. Donahue, Asst. U.S. Atty., Los Angeles, California, for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; Harry L. Hupp, District Judge, Presiding. D.C. No. CR-95-01028-HLH.

Before: O'SCANNLAIN, FERNANDEZ and THOMAS, Circuit Judges.

O'SCANNLAIN, Circuit Judge.

We must decide in this case whether the "victim" of the crime of distributing child pornography is the individual child depicted in the image or society at large.

I

Defendant Hans Boos appeals his 30-month sentence for conspiracy to distribute or to receive child pornography under 18 U.S.C. § 371 and distribution of child pornography under 18 U.S.C. § 2252(a)(1). He challenges the district court's decision not to "group" seven substantive distribution counts (i.e. sentence them as a single unit rather than separately), a decision that resulted in Boos's sentencing guideline range being increased from 15-21 months to 30-37 months. Boos argues that society at large--and not the young girls depicted in the photographs he distributed--was the primary victim of his crimes. Because there was but a single victim, Boos contends, the district court should have grouped the distribution counts.

In October, 1991, Boos wrote from his home in Trinidad to his co-defendant, Jim Burchett, at his home in California. In this, the first in a series of letters, Boos mentioned that he had gotten Burchett's name from a mutual friend with whom the latter had swapped "photos of a special nature," and inquired whether Burchett might be interested in exchanging similar photographs with Boos. Over the course of the next eighteen months, Boos and Burchett corresponded regularly, describing in lurid detail their respective interests in child pornography. The two men also exchanged numerous pornographic photographs depicting young girls engaged in various sexually explicit acts, including genital-to-genital sex with adult males, oral-to-genital sex with adult males, and lascivious exhibition of the genitals.

In November 1995, Boos was formally indicted on one count of conspiracy to distribute or to receive child pornography in violation of 18 U.S.C. § 371, twenty-one counts of distributing child pornography in violation of 18 U.S.C. § 2252(a)(1), and three counts of receiving child pornography in violation of 18 U.S.C. § 2252(a)(2). Pursuant to a written plea agreement, Boos pled guilty to the single conspiracy count and to seven distribution counts.

Boos's sentence was calculated in accordance with the November 1995 Sentencing Guidelines Manual. Pursuant to U.S.S.G. § 2G2.2(a), for each count of the indictment, the base offense level was 15. A two-level enhancement applied under § 2G2.2(b)(1) because some of the materials depicted prepubescent minors. The presentence report grouped the conspiracy count with one of the substantive counts, but, significantly, did not group the remaining substantive counts, because they depicted "different children" and, hence, different victims. The decision not to group the substantive counts resulted in the offense level being raised five levels, from 17 to 22, pursuant to U.S.S.G. § 3D1.4. Finally, Boos received a three-level downward departure for early acceptance of responsibility, resulting in a final offense level of 19 and a corresponding sentencing range of 30 to 37 months.

The district court heard argument on the grouping issue and concluded that, because "these were separate pictures of separate victims ... the grouping doesn't--shouldn't apply here." The court therefore sentenced Boos to 30 months, the low end of the prescribed guideline range.

II

On appeal, Boos challenges the district court's decision not to group the seven counts of distributing child pornography in violation of 18 U.S.C. § 2252(a)(1). Section 2252(a) provides for the punishment of:

Any person who -

(1) knowingly transports or ships in interstate or foreign commerce by any means including by computer or 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. § 2252(a)(1).

Under the United States Sentencing Guidelines, separate crimes may be "grouped" when they (1) "involve the same victim" and (2) are "connected by a common criminal objective or constitut[e] part of a common scheme or plan." U.S.S.G. § 3D1.2(b). The government does not dispute Boos's argument that the second of these requirements is satisfied. Consequently, for the purposes of this appeal, the issue before us can be reduced to the following: Who is the "victim," within the meaning of § 3D1.2(b), of the distribution of child pornography? Boos argues that society at large is the victim. He offers two slightly different variations on that general theme. First, and more generally, he asserts that society has an interest in preserving its "moral fabric." Second, and slightly more specifically, he argues that society has an interest in protecting future generations of children from the abuse that is facilitated by the proliferation of the child porn industry. In stark contrast to Boos's society-as-victim theories, the government contends that the children depicted in the pornographic images are themselves the victims of the distribution of those images. If we conclude that the children depicted are the primary victims, we must affirm the district court's decision not to group the distribution counts. If, on the other hand, we conclude that society at large is the primary victim, we must reverse that decision.

We review the district court's interpretation of the Sentencing Guidelines de novo. See United States v. Robinson, 94 F.3d 1325, 1327 (9th Cir.1996). More specifically, we review its decision regarding the grouping of offenses de novo. See United States v. Hines, 26 F.3d 1469, 1474-75 (9th Cir.1994).

A

Application Note 2 to § 3D1.2 of the Sentencing Guidelines provides the following explanation of the term "victim":

The term "victim" is not intended to include indirect or secondary victims. Generally, there will be one person who is directly and most seriously affected by the offense and is therefore identifiable as the victim. For offenses in which there are no identifiable victims (e.g., drug or immigration offenses, where society at large is the victim), the "victim" for purposes of [§ 3D1.2] is the societal interest that is harmed.

U.S.S.G. § 3D1.2, cmt.2. Boos's theory, pressed at oral argument, that the primary "victims" of his crime were not the children depicted, but instead were children who belonged to "some as yet undetermined group of future potential victims" is flatly inconsistent with the Note's express reference to those "directly ... affected." Contrary to Boos's suggestion, a commonsense reading of the Note strongly suggests that, with regard to the distribution of child pornography, the "person[s] who [are] directly and most seriously affected," and are "therefore identifiable as the victim[s]," are the children who perform the pornographic acts.

Moreover, quite unlike the drug and immigration offenses mentioned in the Note--which are "victimless" crimes in the sense that the harm that they produce is spread evenly throughout society--the harm caused by the distribution of child pornography is concentrated. It is visited upon a single individual or discrete group of individuals, namely, the child or children used in the production of the pornographic material. The child pornographer simply cannot be analogized to the garden-variety drug user convicted under 21 U.S.C. § 844(a) of possessing a controlled substance, who is, practically speaking, his own victim. The child pornographer victimizes not himself, but children.

B

Our interpretation of the Application Note is confirmed, we believe, by the plain meaning of the word "victim," as used in the Guidelines. In interpreting § 3D1.2, we "follow[ ] the axiom that words used in a statute are to be given their ordinary meaning in the absence of persuasive reasons to the contrary." Burns v. Alcala, 420 U.S. 575, 580-81, 95 S.Ct. 1180, 1184-85, 43 L.Ed.2d 469 (1975); accord United States v. Miguel, 111 F.3d 666, 670 (9th Cir.1997) ("To ascertain the meaning of [a] statutory term, we start with the word['s] ordinary meaning."). Webster's Ninth New Collegiate Dictionary--dated 1986, only a year before the Sentencing Guidelines were promulgated--provides the following definition of the word "victim":

one that is acted on and usu[ally] adversely affected by a force or agent ... [;] one that is injured, destroyed, or sacrificed under any of various conditions ... [;] one that is subjected to oppression, hardship, or mistreatment ... [;] one that is tricked or duped ....

Webster's Ninth New Collegiate Dictionary 1314 (1986) (emphasis added).

From this, the common and ordinary definition, it seems to us scarcely debatable that the children depicted--many as young as 5 years old--were the primary "victims" of Boos's criminal conduct, as that word was likely understood by the drafters of the Guidelines. After all, it was the children depicted--and not society at large--who were "acted on" and "adversely affected," who oftentimes were "force[d]" to participate in the production of the pornography in which Boos traded, who were "injured" (both physically and psychologically) as a result of Boos's patronage of the porn industry, who were "sacrificed" to satisfy Boos's curiosities, who were "subjected" to the cruelest form of ...