U.S. v. Brown

• Decision Date: 12 January 1989
• Docket Number: No. 88-5363,88-5363
• Citation: 862 F.2d 1033
• Parties: UNITED STATES of America, Appellant, v. Lowell BROWN.
• Court: U.S. Court of Appeals — Third Circuit

Page 1033

862 F.2d 1033

UNITED STATES of America, Appellant, v. Lowell BROWN.

No. 88-5363.

United States Court of Appeals, Third Circuit.

Argued Oct. 17, 1988.

Decided Dec. 15, 1988.

Rehearing and Rehearing In Banc Denied Jan. 12, 1989.

Samuel A. Alito, U.S. Atty., Marion Percell (argued), Asst. U.S. Atty., Newark, N.J., for appellant.

David E. Schafer (argued), Asst. Federal Public Defender, Trenton, N.J., for appellee.

Before STAPLETON, SCIRICA and COWEN, Circuit Judges.

OPINION OF THE COURT

COWEN, Circuit Judge.

The United States appeals the order of the district court acquitting defendant Lowell Brown ("Brown") of knowingly receiving child pornography in violation of 18 U.S.C. Sec. 2252 (1986). Brown was found guilty by a jury on February 18, 1988. The district court thereafter granted his motion for a judgment of acquittal pursuant to Fed.R.Crim.P. 29(c) on April 19, 1988.

We determine that the district court erred in its construction of the statute. We also conclude that the evidence, when viewed in the light most favorable to the United States, supports the jury's verdict. Accordingly, we will vacate the order of acquittal, reinstate the jury verdict of guilty, and remand the matter to the district court for sentencing.

I.

As part of a sting operation named "Project Looking Glass," the United States Postal Inspection Service in the spring of 1986 sent letters to certain individuals identified as being interested in child pornography. These individuals' names had appeared on lists compiled from investigations by the Postal Inspection Service and the United States Customs Service, and from information provided by state and local police. The letters were sent by a sham company dubbed Far Eastern Trading Corporation ("Far Eastern"), which purported to be based overseas and to deal in child pornography. The letters stated that "we have devised a method of getting these [child pornography materials] to you without prying eyes of U.S. Customs seizing your mail," and invited the recipients to respond for further information. App. at 166. ¹

One such letter was sent to Brown. In order to obtain further information, he provided his name and address on a coupon attached to the letter, signed it, and returned it to the address given in the letter. Far Eastern responded with a letter to Brown stating that its catalogue would be available in the fall of 1986, and also that it would be producing its own child pornography publication. In December 1986, Brown wrote inquiring about the delay and requesting a catalogue. At about the same time, a catalogue was sent to him.

The catalogue had been compiled by a postal inspector. It contained the same descriptions of movies, videotapes, and magazines which had actually been used by the child pornography distributors in their own catalogues. It was accompanied by a letter containing ordering instructions. Because the Postal Inspection Service did not expect to actually sell anything from the catalogue, the letter instructed the purchaser to order materials COD rather than to send money. In addition, because the Postal Inspection Service was seeking people who were interested in submitting, as well as receiving child pornography, another letter accompanying the catalogue described a magazine which Far Eastern planned to publish, and offered preference to any individual who sent materials to Far Eastern. There is no dispute that the catalogue describes pornographic materials involving children and that the materials described in the catalogue constitute child pornography.

On the same day he received the catalogue, Brown wrote back to Far Eastern. Relevant excerpts of that letter include the following:

I would like to enter a business relationship for priority service, but I do not currently have the necessary material you require. Hopefully, by summer 1987 I will have something to offer. However, I would still very much appreciate your considering me as a customer. But in the interest of establishing as safe an exchange system as possible, allow me to explain my situation. Three years ago I had a problem with U.S. Customs though nothing legal ever developed. For a short time (6 months) some of my mail was opened, especially cartons or boxes. However over the last two years I have ordered adult materials ... through the mails with no problems whatsoever.... I am interested in your "Teen Sex Video" series (all 3 titles). While I am not concerned with receiving mainstream adult videos C.O.D., I would be concerned at receiving this video series C.O.D. because might it not attract more attention than if it were pre-payed.

....

[I]f you accept me as a customer, would you take prepayment.

....

I would appreciate your reply & opinion. I would have written you sooner.... [But] ... I wanted to wait to see if you really had what I wanted.

App. at 173-75. In a postscript Brown asked, "[i]f I were to buy films from you," whether he would be permitted to transfer films to videotape and return the films for partial credit against future orders. App. at 175. ²

The videotapes that Brown requested were three tapes in the "Teen Sex" series, a well-established child pornography series featuring pubescent children, as opposed to completely undeveloped younger children. The Postal Inspection Service had not planned to ship any of the items in the catalogue, and did not have the tapes which Brown requested. After receiving Brown's letter in January 1987, however, it decided to turn "Project Looking Glass" into a reverse sting operation in which materials would be sold to the individuals who placed orders. The Postal Inspection Service then prepared a revised catalogue containing only those items which it had in stock as a result of previous seizures of materials.

In February 1987, Far Eastern wrote its customers indicating that the company had suffered a seizure of its materials in Central America. In March 1987, Far Eastern mailed the revised catalogue. By June 1987, Brown had not responded to either the February or the March mailings from Far Eastern, and the Postal Inspection Service decided to attempt to fill Brown's initial request. Because the Postal Inspection Service did not have the "Teen Sex" series of videotapes, a videotape entitled "Preteen Trio" was sent to Brown instead. "Preteen Trio" had been included in the original catalogue Brown received, and it was chosen as the videotape most closely resembling the "Teen Sex" tapes which Brown requested.

The government applied for and was granted a search warrant based on probable cause that Brown would receive the "Preteen Trio" tape. On June 10, a postal inspector posed as a letter carrier and attempted to deliver the tape. The postal inspector knocked on Brown's door, but no one answered. Later that day, the postal inspector placed in Brown's mail slot a notice indicating that a package was being held at the post office for Brown, and that he could pick it up the next day, June 11. Brown failed to appear at the post office.

On the morning of June 12, 1987, a postal inspector again went to Brown's house to deliver the "Preteen Trio" videotape to Brown, but no one answered. Later that day, the postal inspector returned to Brown's house. This time, Brown answered the door and accepted the package. The package bore the following return address: "Far Eastern Trading Co., LTD, P.O. Box 3071, Frederiksted, St. Croix, U.S. Virgin Islands." Brown looked at the package and took it upstairs.

Fifteen minutes later, postal inspectors knocked on Brown's door and executed the search warrant. The inspectors found the opened parcel containing "Preteen Trio", as well as other pornographic videotapes in the house.

A postal inspector testified at trial that "Preteen Trio" and four other videotapes found in Brown's home constituted child pornography. Portions of all five videotapes were shown at trial to allow the jury to determine whether the tapes constituted child pornography.

II.

The primary issue on this appeal is whether the district court's construction of 18 U.S.C. Sec. 2252(a)(2) is correct. Because this poses a pure question of law, our review is plenary. United States ex rel. Forman v. McCall, 776 F.2d 1156, 1161 (3d Cir.1985), cert. denied., 476 U.S. 1119, 106 S.Ct. 1981, 90 L.Ed.2d 663 (1986).

The indictment charges that Brown "did knowingly and willfully receive 'Preteen Trio,' a video tape ... which visually depicted and whose production involved the use of minors engaging in sexually explicit conduct" in violation of 18 U.S.C. Sec. 2252(a)(2). That statute provides for the punishment of any person who:

knowingly receives, or distributes any visual depiction that has been transported or shipped in interstate or foreign commerce or mailed ... 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. Sec. 2252(a)(2). The district court agreed with the jury's findings that Brown received the "Preteen Trio" videotape, that the tape constituted child pornography, and that when Brown received the tape he knew that it constituted child pornography. ³

The district court, however, found that Brown did not receive the "Preteen Trio" tape "knowingly", because he had not ordered that tape, but instead had ordered three tapes in the "Teen Sex" series. The court concluded: "In short, the Government has not proven a knowing reception [sic] of the video he is charged with having received. Although Brown may have attempted to violate the statute, Sec. 2252 contains no provision for an attempted receipt." App. at 180-81. On appeal, the United States contends that the district court erred in reading the statute as requiring Brown to have known not merely that the package he received was child pornography, but also the specific contents of the videotape in the package--i.e., that it contained the "Preteen Trio" videota...