U.S. v. Duncan

• Decision Date: 22 February 1990
• Docket Number: No. 89-1087,89-1087
• Citation: 896 F.2d 271
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David Frank DUNCAN, a/k/a Harold Celline, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 271

896 F.2d 271

UNITED STATES of America, Plaintiff-Appellee, v. David Frank DUNCAN, a/k/a Harold Celline, Defendant-Appellant.

No. 89-1087.

United States Court of Appeals, Seventh Circuit.

Argued June 7, 1989.

Decided Feb. 22, 1990.

Frederick J. Hess, U.S. Atty., Stephen B. Clark, Joel Merkel (argued), Asst. U.S. Attys., Office of the U.S. Atty., East St. Louis, Ill., for plaintiff-appellee.

Robert G. Duncan (argued), Kansas City, Mo., for defendant-appellant.

Before COFFEY and EASTERBROOK, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

COFFEY, Circuit Judge.

David Frank Duncan, also known as Harold Celline, appeals from a conviction for knowingly receiving visual depictions of minors engaging in sexually explicit conduct, transported and shipped in interstate and foreign commerce, in violation of 18 U.S.C. Sec. 2252(a)(2). We affirm.

I

In 1986 the United States Customs Service established a national undercover operation code named "Operation Borderline" to target people involved in the importation of child pornography into the United States. ¹ As part of Operation Borderline, the Customs Service, in cooperation with the Canadian Customs Service, established a false child pornography distribution operation located in Hull, Quebec, Canada. Locating the operation's office in Canada was important to the credibility of the operation because most child pornography distributors are located outside of the United States.

Operation Borderline's child pornography enterprise, operating under the name Produit Outaouais, designed a non-illustrated brochure offering for sale sets of photographs depicting minors engaged in sexually explicit conduct Customs had seized in prior investigations. The brochure itself was a combination of descriptions of photographs contained in other brochures previously disseminated by actual distributors of child pornography. For example Customs' brochure, published in both English and French, included several paragraphs taken directly from a former child pornography distributor in Stockholm, Sweden:

"Hello Lolita Collector: You have been recommended from a reliable contact in which you have done business with. Because you are a trusted and proven customer, we offer you these special selections.

As a serious collector, you are aware of the world-wide ban and intense enforcement on this type of material. Accordingly, what was legal and commonplace is now an "underground" and secretive service in order to continue serving collectors.

This environment forces us to take extreme measures to protect us and to ensure your delivery. We have been serving customers the world over for many years and we are continuing to do so. To continue, we offer these selections and delivery on the following basis only."

The next part of the brochure was taken directly from a former distributor of child pornography in West Germany:

"The following list of materials is not all we have to offer. You will receive additional lists, unless you choose not to, at a later date.

FOTOS: With boys and girls in sex action ... At the moment, the following magazine foto sets are available:

Lolita No. 31, 43, 51, 52, 55

Incest No. 1, 2, 4 and 5

School Girls and Boys

Linda and Patty

Lolita Colours Special No. 13, 18, 19 and 20

Lolitas Who Love Pissing

Nymph Lover No. 4 and 6

Loving Children No. 3

Lesbian Lolita

Liza and Her Dog

Sweet Linda" ²

An additional section of the brochure offered COQ foto sets. COQ formerly was the largest distributor in the world of male homosexual child pornography. The section read as follows:

"COQ's favorites: Young Boys in Sex Action Fun:

* * * * * *

Loverboys # 1, 2

Joe & His Uncle

Miniboys # 2, 4, 7

* * * * * *

Joyboy # 4, 5"

The brochure contained an order form which could be torn from the rest of the brochure and mailed to the company to obtain desired photo sets.

Customs agents sent this brochure to around 2,000 people whose names were obtained from Customs' lists of persons from whom child pornography had been seized and from a list of individuals who stated preferences for particular types of child pornography in a Postal Inspection Service survey, that had been conducted under the false name of "Crusaders for Sexual Freedom." ³ Because the name "Harold Celline" could be found on both of these lists, Celline was sent a copy of the brochure. About 215 replies to the brochure were received, including one from "Harrald Celline." Celline's reply consisted of the brochure's order form containing his request for four sets of twelve photographs that were entitled: "Joe and His Uncle," "School Girls and Boys," "Chicken No. 11" and "Miniboys No. 7." The order form requested that the materials be shipped to Harrald B. Celline at 306A South Oakland in Carbondale, Illinois. Enclosed with the order form was a check for $60, payable to Produit Outaouais, drawn on the account of David F. Duncan, Southern Illinois University, Department of Health Education. The memo portion of the check noted "For Harry Celline."

In accordance with Operation Borderline's standard procedures, the Canadian Customs Service forwarded Celline's order to United States Customs in Chicago. Customs personnel in Chicago thereupon prepared Celline's order from Customs' stock of previously seized child pornography. Customs agents placed the 48 photographs Celline had ordered in an envelope and hand carried the envelope to Ottawa, Ontario, Canada. From there the envelope was sent from "Revenue Canada Customs/Excise" to a Special Customs Agent in St. Louis, Missouri. St. Louis based Special Customs Agent, Brett Braaten took the material from DHL's St. Louis office on May 29, 1987. ⁴ At about the same time, Customs in Chicago caused a form letter to be sent to Celline, purportedly from Produit Outaouais, requesting the best day and time for delivery of Celline's order. Celline replied that any day would be acceptable, that delivery should take place between 10:00 a.m. and 1:00 p.m., and that he would be out of town until June 18, 1987. On June 18, 1987, prior to delivering the material to Celline, Customs obtained a warrant to search Celline's home.

On June 23, 1987, Agent Braaten delivered the requested child pornographic materials to Celline's home address while disguised as a DHL delivery man. The defendant, David F. Duncan, answered the door when Braaten knocked on it, received the package, and signed a delivery receipt for it in the name of D.F. Duncan.

About ten minutes after the photo sets were delivered, Braaten and several other agents executed the search warrant at Duncan's residence. The government agents seized 47 of the 48 originally delivered photographs, as well as dozens of other magazines and photographs. Among the confiscated child pornographic materials were: 163 pictures of boys under the age of 18 involved in sexually explicit conduct and 20 magazines containing males under 18 years old engaged in sexually explicit conduct. ⁵ Seven of the magazines had on their covers the inscription "COQ," and one of these magazines was entitled "Joyboy." As noted previously, COQ materials were among those Customs offered in the Produit Outaouais brochure, likewise "Joyboy" was also one of the titles listed in this brochure. In addition, the agents seized an illustrated child pornography brochure and an accompanying order blank. The order blank had been signed "Dave Duncan" and reflected an order for five items that corresponded to the following descriptions in the brochure: (1) Twelve Photos--The Best Place for a Boy to Masturbate is Out in the Open; (2) A Group of Six Photos--Oral and Anal Sex Between Two Handsome Suntanned Sexual Maniacs; (3) Ten Photos--Papiet and a Friend--A Country Sex Duet with Stallion Cocks; (4) Papiet--Fifteen Photos--The Laughing Farm Boy Radiating Happiness and Health; (5) Andy--Five Photos--The City Boy Who Turned Punk Possesses Mystic Erotic Aura. The order blank was entitled "COQ International Photo Sets," and listed a Holbaek, Denmark address.

At the time of the search, Duncan gave a statement to Agent Braaten after Duncan had been read his Miranda rights from a pre-printed form and had an opportunity to read a printed statement of his Miranda rights. Thereafter Duncan signed a written waiver of his Miranda rights. During questioning Duncan stated that the items delivered had been misrepresented, as he had thought the items would be "naturist" pictures rather than child pornography. Duncan also stated that he had previously used the name Harry Celline as a pen name in writing and that he used it in ordering materials because nudism is not acceptable in America. Duncan also admitted that Customs had previously seized items he had ordered. Duncan further admitted that he had received items from a company in Holbaek, Denmark in 1982. ⁶

II

Duncan challenges his conviction on the ground that the government's activities constituted "outrageous governmental conduct" violative of due process. In United States v. Nunez-Rios, 622 F.2d 1093, 1098 (2nd Cir.1980), the United States Court of Appeals for the Second Circuit held that "under Rule 12(b)(2) [of the Federal Rules of Criminal Procedure], this defense should normally be raised prior to trial, so that the trial court can conduct a hearing with respect to any disputed issues of fact." We agree with the Second Circuit that an outrageous governmental conduct defense must be made the subject of a pre-trial motion under Rule 12(b)(2). Not only did Duncan fail to make the outrageous governmental conduct defense the subject of a pre-trial motion, but in fact he failed to raise it in the trial court. In United States v. Fuesting, 845 F.2d 664, 670 (7th Cir.1988); we noted the limited review that can be accorded an argument in a criminal case that is raised for the first time on appeal:

"[Fuesting's] argument was raised for the first time on appeal, and while it is within our discretion to resolve such issues, our review is limited to...