U.S. v. Cochran, 93-1578

• Decision Date: 25 January 1994
• Docket Number: No. 93-1578,93-1578
• Citation: 17 F.3d 56
• Parties: UNITED STATES, Appellee, v. William Q. COCHRAN, Appellant. . Submitted Pursuant to Local Appellate Rule 34.1(a)
• Court: U.S. Court of Appeals — Third Circuit

Page 56

17 F.3d 56

UNITED STATES, Appellee, v. William Q. COCHRAN, Appellant.

No. 93-1578.

United States Court of Appeals, Third Circuit.

Submitted Pursuant to Local Appellate

Rule 34.1(a) Jan. 25, 1994.

Decided Feb. 2, 1994.

Sur Petition for Rehearing Feb. 25, 1994.

James P. McFadden, Assistant Federal Defender, Elaine DeMasse, Senior Appellate Counsel, Maureen Kearney Rowley, Chief Federal Defender, Federal Court Division, Defender Association of Philadelphia, Philadelphia, PA, Attorneys for Appellant.

Michael J. Rotko, United States Attorney, Walter S. Batty, Jr., Assistant United States Attorney, Chief of Appeals, Richard P. Barrett, Assistant United States Attorney, Philadelphia, PA, Attorneys for Appellee.

Before MANSMANN, NYGAARD and SEITZ, Circuit Judges.

OPINION OF THE COURT

SEITZ, Circuit Judge.

Defendant William Q. Cochran appeals from a judgment and sentence after a plea of guilty to possessing and transporting child pornography in interstate commerce in violation of 18 U.S.C. Sec. 2252(a)(1) and (a)(4). The district court had jurisdiction over this criminal prosecution for violation of a federal statute under 18 U.S.C. Sec. 3231. This court has jurisdiction over the final order of the district court under 28 U.S.C. Sec. 1291.

I. FACTS

Employees of Atlas Van Lines advised the Philadelphia police that they suspected that Cochran moved items containing child pornography from Colorado to Pennsylvania. Pursuant to a search warrant, the Philadelphia police seized photographs and equipment connected to the production of child pornography at Cochran's new residence. Cochran admitted knowingly possessing the seized material.

After an unsuccessful motion to suppress the items seized and his incriminating statement, Cochran pled guilty. The district court allowed Cochran to modify his plea to preserve for appeal the issues addressed below.

II. DISCUSSION

Cochran raises two issues in this appeal. First, he challenges the constitutionality of the federal child pornography statute, 18 U.S.C. Sec. 2252, on the ground that it lacks a scienter requirement as to the minority of the performer. Most courts that have addressed the issue have upheld the statute; however, they differ in their methods of finding a scienter requirement in the statute. Some courts construe the statutory language to embody a knowledge requirement; other courts read in a recklessness requirement as a saving construction. The choice is important because the availability of relief under the second issue presented turns on which construction is employed. Our review of the district court's statutory construction is de novo. United States v. Brown, 862 F.2d 1033, 1036 (3d Cir.1988).

Cochran's second challenge is to the sufficiency of his indictment, which tracked the language of the statute. If the scienter requirement is fulfilled by the statutory language, the indictment sufficiently alleged all the elements of the crime. On the other hand, if the scienter requirement is supplied by the judicial addition of a recklessness standard, the indictment is fatally flawed because it omitted an essential element. An indictment that fails to charge all the elements of a crime must be dismissed. Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 1046-47, 8 L.Ed.2d 240 (1962). Our review of the sufficiency of an indictment is de novo. United States v. Werme, 939 F.2d 108, 112 (3d Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1165, 117 L.Ed.2d 412 (1992).

A. Scienter Requirement

In order to prevent chilling expression protected by the First Amendment, statutes criminalizing obscenity must require proof of scienter. In Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959), the Supreme Court struck down a strict liability statute that outlawed possession of obscene material in bookstores and other places. The Court reasoned that if the bookseller could be jailed for stocking books whose contents he does not know, he will censor himself too much by refusing to carry books he has not read.

Scienter is also a prerequisite to conviction under a child pornography statute. Child pornography can be restricted when adult pornography cannot because First Amendment interests are outweighed by the state's compelling interest in protecting children. New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). Therefore, nonobscene visual depictions of live performances by minors may be prohibited. However, "as with obscenity laws, criminal responsibility may not be imposed without some element of scienter on the part of the defendant." Id. at 765, 102 S.Ct. at 3358.

Understanding that scienter is a necessary element of a prosecution under Section 2252, we begin the task of construing the statute. First, we consider the text of the statute:

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;

. . . . .

(4) ...

(B) knowingly possesses 3 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which was produced using materials which have been mailed or so shipped or transported, by any means including by computer, if--

(i) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and

(ii) such visual depiction is of such conduct;

shall be punished as provided in subsection (b) of this section.

18 U.S.C. Sec. 2252(a) (1988 & Supp. IV 1992). This section does not plainly indicate whether "knowingly" extends to "the use of a minor." We therefore look to see how other courts have interpreted the statute.

First, defendant points to the recent decision by the Ninth Circuit Court of Appeals striking the statute as unconstitutional. United States v. X-Citement Video, Inc., 982 F.2d 1285 (9th Cir.1992), petition for cert. filed, 62 U.S.L.W. 3360 (U.S. Nov. 5, 1993) (No. 93-723). The X-Citement Video court was bound by a prior Ninth Circuit case holding that Section 2252 does not require proof of scienter as to the minority of the performers. See id. at 1289-90 (citing United States v. Thomas, 893 F.2d 1066 (9th Cir.), cert. denied, 498 U.S. 826, 111 S.Ct. 80, 112 L.Ed.2d 53 (1990)). Recognizing the constitutional mandate of a scienter element, the majority of the X-Citement Video court felt constrained to strike the statute. Id. at 1292.

The Thomas court concluded that " 'knowingly' modifies only 'transports or ships' [and] 'receives' [and,] therefore, does not require that Thomas knew that the pornography he transported, mailed, and received involved a minor." Thomas, 893 F.2d at 1070. The court was reviewing the sufficiency of the indictment and had no constitutional challenge before it. Indeed, the Thomas court provided no rationale for its ruling. Its only citation is to a case construing Section 2251(a), from which Congress specifically deleted the word "knowingly." See id. (citing United States v. United States Dist. Court for the Cent. Dist. of Cal., 858 F.2d 534, 537-38 (9th Cir.1988)).

United States v. Kleiner, 663 F.Supp. 43 (S.D.Fla.1987), also concluded that "knowingly" attaches to "only the shipment or transportation of the sexually explicit material.... The knowledge element does not concern the age of the child." Id. at 44. Kleiner relied on an Eleventh Circuit Court of Appeals case construing the knowledge requirement in another statute. See id. at 44-45 (citing United States v. Pruitt, 763 F.2d 1256 (11th Cir.1985), cert. denied, 474 U.S. 1084, 106 S.Ct. 856, 88 L.Ed.2d 896 (1986)). However, the earlier case considered only statutes that proscribed conduct that is criminal without mention of the element as to which the defendant need not have knowledge. See Pruitt, 763 F.2d at 1261-62. For example, Pruitt held that no knowledge of the recipient's age is necessary to enhance the penalty for knowingly distributing a controlled substance to a person under age 21. Id. at 1262. Pruitt cited cases holding, for instance, that knowledge of the victim's age is not a prerequisite to increasing penalties for interstate transportation of persons in order to engage in immoral practices. Id. (citing United States v. Hamilton, 456 F.2d 171, 173 (3d Cir.), cert. denied, 406 U.S. 947, 92 S.Ct. 2051, 32 L.Ed.2d 335 (1972)). Enhancement of penalties for otherwise criminal conduct is significantly different than criminalization of conduct otherwise protected by the First Amendment as is done by Section 2252.

Other opinions have agreed that, as a matter of statutory construction, "knowingly" does not reach the age of the performer, but that, as a matter of constitutional interpretation, some level of scienter should be read into the statute. Judge Kozinski felt bound by Thomas's statutory interpretation as the X-Citement Video majority did, but dissented on the theory that a recklessness requirement should be imputed as a constitutional saving construction. X-Citement Video, 982 F.2d at 1295-97. His approach was followed in United States v. Kempton, 826 F.Supp. 386 (D.Kan.1993), albeit without first deciding that "knowingly" does not reach "the use of a minor" in the statute.

A third approach reads Section 2252 so that "knowingly" "modifies the entire paragraph" and "imposes a scienter element as to the nature of the proscribed visual depictions." United States v. Prytz, 822 F.Supp. 311, 321 (D.S.C.1993). This scheme accords with our prior constructions of Section 2252 when we did not have this precise constitutional challenge to consider. In United States v. Brown, 862 F.2d 1033, 1036-38 (3d Cir.1988), we held that the defendant must have been aware that the...