U.S. v. Gifford

• Citation: 17 F.3d 462
• Decision Date: 06 December 1993
• Docket Number: No. 93-1645,93-1645
• Parties: UNITED STATES of America, Appellee, v. William L. GIFFORD, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 462

17 F.3d 462

UNITED STATES of America, Appellee, v. William L. GIFFORD, Defendant, Appellant.

No. 93-1645.

United States Court of Appeals First Circuit.

Heard Dec. 6, 1993.

Decided Feb. 24, 1994.

Annemarie Hassett, Federal Defender Office, on brief for appellant.

Jeanne M. Kempthorne, Assistant United States Attorney, with whom A. John Pappalardo, United States Attorney, was on brief, for the United States.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and CYR, Circuit Judge.

SELYA, Circuit Judge.

A jury convicted defendant-appellant William L. Gifford on a charge of illicit receipt of child pornography in violation of 18 U.S.C. Sec. 2252(a)(2) (1988). ¹ The district court imposed an 18-month incarcerative sentence. Gifford appeals both the conviction and the sentence.

Appellant's principal argument requires us to probe the dimensions of the entrapment doctrine in the aftermath of Jacobson v. United States, --- U.S. ----, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992). When all is said and done, we find ourselves unpersuaded either by appellant's argument on entrapment or by his other merits-related asseverations. Consequently, we affirm the conviction. Appellant's sentence presents a different set of considerations. On this scumbled record, we conclude that the course of prudence is to vacate the sentence and remand for resentencing in light of our recent decision in United States v. Rivera, 994 F.2d 942 (1st Cir.1993).

I. BACKGROUND

This appeal finds its genesis in an undercover investigation mounted by a postal inspector, John Dunn, who, using the alias of "Gatewood," sent a letter to appellant in February of 1986 (after culling his name from the mailing list of a company reputed to distribute child pornography). Gatewood wrote that, while abroad, he had "developed what others might consider forbidden interests." He claimed that his "publisher friends" had given him "a few Stateside addresses," presumably including appellant's, and asked if appellant had an interest in pursuing the matter. Appellant responded promptly, specifying a post office box as his return address. His letter stated:

"I don't know who you are, but would like to know anyway. Please let me know who you are (Mr. or Mrs.) and what you would like to correspond about. Let me hear from you, as I don't know anything about your given address!"

Gatewood replied to this letter in June, ² writing that he had a "very strong appreciation of a varied sexual life," a "love for the much younger generation," and a "decent collection" of films and photographs. He remarked that he had a group of friends with whom he exchanged such baubles. Appellant answered this missive in early July, inquiring about "Scandinavian publishing material" that might be available for purchase. Gatewood did not reply. ³

The next contact between appellant and the postal inspectors consisted of a single-page advertisement disseminated by the Far Eastern Trading Co. (Fetco), a sham corporation. The bogus solicitation criticized the government's efforts to censor "children's pornography," indicated that Fetco had devised a foolproof technique for shipping such materials into the country undetected, and invited responses from interested parties. Appellant signed and returned the printed form provided for that purpose, enclosing a note in which he referred to a specific publisher, COQ. ⁴ He also requested catalogs for "this type of material" and a listing of similarly oriented Scandinavian publishers. Fetco then sent appellant a catalog that described a variety of films in a crude way that left little to the imagination--and left no shred of doubt that the films constituted visual depictions of the kind targeted by 18 U.S.C. Sec. 2252(a)(2). ⁵ By letter postmarked January 26, 1987, appellant ordered two items, "Dolls" and "Pissing Lolita," and requested that Fetco inform him when the magazine "Erotic Youth" would be available.

The government neither filled appellant's order nor cashed his check. In June of 1987, appellant bemoaned the delay and requested immediate clarification of the status of his order. The government temporized, sending appellant a new catalog. On July 31, 1987, appellant forwarded a replacement order and another check. He again requisitioned "Pissing Lolita," but in lieu of "Dolls," he substituted two magazines, "Baby Love" and "Lolita--Sex." ⁶ This order, too, went unrequited.

In the spring of 1988 the government initiated another contact. It sent appellant a complimentary copy of "Tender Moments," a newsletter published by postal inspectors under the pseudonym of "the American Sensuality Society." The Society purported to be a club whose members, for a fee, could place advertisements and notices in the newsletter. In July, appellant completed a membership form, sent a check, and wrote a note indicating an interest in purchasing copies of the "Bambina sex series" and "Lolita-sex magazines." One month later, appellant placed an advertisement in "Tender Moments" requesting, inter alia, addresses of Danish bookstores offering adult material.

Using the name Christian M., and conjuring up a fictitious association with a fictitious firm, "Chrismere Associates," the ubiquitous Inspector Dunn responded to this note in June of 1989, asking that appellant "[l]et me know exactly the sort of action desired and preferred ages...." When appellant replied that his interest lay in "films or magazines of teen or pre-teen girls or boys in the nudist or other state of nakedness," Christian wrote back: "If you are seeking nudist or naturist type things I cannot be much assistance as my collection of material is what is called here ACTION that is oral and penetrating and features preteen girls nine to eleven." Appellant rose to the bait, acknowledging that he was "interested in a loan of Lolita or other pre-teen magazines to my mailbox, which is safe and private...." Though communications continued for some time, no materials were shipped.

During the tail end of these negotiations, yet another government undercover operation surfaced. This operation, called "Canamerican," forwarded appellant a brochure on March 1, 1990. The brochure featured child pornography. ⁷ Appellant expressed pleasure at "hear[ing] of what you have to offer" and communicated an interest in purchasing "copies of ... 8 mm films" and "teen or pre-teen magazines." On June 3, 1990, appellant placed an order, requesting that Canamerican "[s]end the films 'Lolita Children Love' and 'PreTeen Trio' for now," along with "photocopies of Bambina Sex 4-5."

In August, appellant inquired about the status of his order. Having one's fondest wishes come true can sometimes prove to be a curse. On September 22, 1990, the materials arrived at appellant's post office box in Woburn, Massachusetts. Appellant collected them from the box. Government agents then arrested him. At the time of his arrest, appellant acknowledged that he knew the package mailed by Canamerican would contain visual depictions of under-age females engaged in sexually explicit conduct.

The authorities later obtained a search warrant for appellant's apartment. On executing the warrant, they found various notes, including one that read:

wrote on 10/15

Scandinavian Connection

Copenhagen Denmark

Amsterdam Netherlands

* * * * * *

Blondie, Bambina Sex, Lolita,

Baby Love Moppets, Incest # 5,

Schoolgirls.

Trial testimony identified "Scandinavian Connection" as a well-known purveyor of child pornography during the late 1970s and early 1980s. It was not a government front. "Blondie," "Moppets," and "Incest # 5" are titles of films that never appeared in catalogs or other offering materials that the government furnished to appellant.

II. THE ENTRAPMENT DEFENSE

Appellant's principal contention in this court, as below, is that he was entrapped and, accordingly, that the district court should have granted his motion for judgment of acquittal under Fed.R.Crim.P. 29. We are not persuaded.

A. Standard of Review.

The standard of review is not controversial. "Following a guilty verdict, a reviewing court must scrutinize the record, eschewing credibility judgments and drawing all reasonable inferences in favor of the verdict, to ascertain if a rational jury could have found that the government proved each element of the crime beyond a reasonable doubt." United States v. Sepulveda, 15 F.3d 1161, 1173 (1st Cir.1993). Moreover, "[t]o sustain a conviction, the court need not conclude that only a guilty verdict appropriately could be reached; it is enough that the finding of guilt draws its essence from a plausible reading of the record." Id. And, finally, our cases are consentient that the prosecution's burden of proof may be satisfied by either direct or circumstantial evidence, or by any combination thereof. See United States v. Echeverri, 982 F.2d 675, 677 (1st Cir.1993); United States v. Victoria-Peguero, 920 F.2d 77, 86-87 (1st Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2053, 114 L.Ed.2d 458 (1991). So long as the evidence, taken as a whole, supports the judgment of conviction, it need not rule out other hypotheses more congenial to a finding of innocence. See Victoria-Peguero, 920 F.2d at 86-87.

Appellant's entrapment defense must be analyzed within this framework, but with special attention to the shifting burdens of production indigenous to entrapment. See, e.g., United States v. Rodriguez, 858 F.2d 809, 812-13 (1st Cir.1988). Our cases make clear that, as with most affirmative defenses, a judge can instruct a jury concerning entrapment only if the defendant has carried the "entry-level burden" of showing that "the record, viewed most charitably to the proponent of the instruction, furnishes an arguable basis" for an assertion of the defense. Id. at 813; accord United States v. McKenna, 889 F.2d 1168, 1174 (1st Cir.1989). While the necessary level of evidence is not "so substantial to require, if uncontroverted, a directed...