U.S. v. Harvey

• Decision Date: 15 April 1993
• Docket Number: D,No. 39,39
• Citation: 991 F.2d 981
• Parties: 38 Fed. R. Evid. Serv. 1144 UNITED STATES of America, Appellee, v. Jeffrey HARVEY, Defendant-Appellant. ocket 92-1110.
• Court: U.S. Court of Appeals — Second Circuit

Page 981

991 F.2d 981

38 Fed. R. Evid. Serv. 1144

UNITED STATES of America, Appellee, v. Jeffrey HARVEY, Defendant-Appellant.

No. 39, Docket 92-1110.

United States Court of Appeals Second Circuit.

Argued Oct. 22, 1992.

Decided April 15, 1993.

James R. McGraw, Syracuse, NY, for defendant-appellant.

Elizabeth S. Riker, Asst. U.S. Atty., Syracuse, NY (Gary L. Sharpe, U.S. Atty., N.D.N.Y., of counsel), for appellee.

Before: OAKES, NEWMAN, and PIERCE, Circuit Judges.

PIERCE, Circuit Judge:

This case concerns the government's efforts to enforce a statute that addresses the problem of child pornography. This appeal arises from defendant-appellant's conviction for the knowing receipt of a videotape, which had been transported in interstate commerce, and that depicted minor children engaging in sexually explicit conduct. We must determine whether, on the facts herein, reasonable cause was required under the Constitution prior to the government's targeting of a suspect for criminal investigation, and whether government agents overstepped the line between setting a trap for the "unwary innocent" and the "unwary criminal," Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 821, 2 L.Ed.2d 848 (1958), in attempting to enforce 18 U.S.C. § 2252(a)(2). ¹ We also must determine whether the materials and testimony offered by the government and received in evidence so prejudiced the jury as to deny the defendant a fair trial.

The defendant appeals from a judgment, entered in the United States District Court for the Northern District of New York (Neal P. McCurn, Chief Judge ), convicting him of violating 18 U.S.C. § 2252(a)(2), a statute that prohibits, inter alia, the knowing receipt of visual depictions of a minor engaging in sexually explicit conduct. ² For the reasons set forth below, we reverse and remand for a new trial.

BACKGROUND

On August 28, 1991, in the United States District Court for the Northern District of New York, appellant was charged in a one-count indictment with having "knowingly receive[d] a visual depiction that had been transported and shipped in interstate and foreign commerce and mailed and ... [having] knowingly received in the mail one videotape containing three films, the production of which involved the use of minor children engaging in sexually explicit conduct and which depicted said minor children engaging in this same sexually explicit conduct" in violation of 18 U.S.C. § 2252(a)(2). As used in 18 U.S.C. § 2252, " 'minor' means any person under the age of eighteen years." 18 U.S.C. § 2256(1).

On November 25, 1991, appellant proceeded to trial before Judge McCurn and a jury in which the following evidence was adduced. In the course of investigating violations of the laws prohibiting child pornography, agents of the United States Customs Service investigated the National Motion Picture Corporation ("NMPC"), located in Miami, Florida. NMPC was in the business of selling erotic videotapes through the United States mails. With NMPC's assistance, Customs Service agents obtained NMPC's current mailing list, which contained the names of 5,700 persons, who One David Rich, a Customs Service agent who was involved in the investigation leading to the filing of the charges against Harvey, testified that some of the films listed on fliers NMPC sent to its customers contained films from the company's "Girlie Watcher Series." According to Agent Rich, generally "[t]hese films depict[ed] older teen-age girls, girls over the age of 18 dressed up to look younger than they really are. By dressed up[, I] mean maybe with pony-tails, bobby socks, just their appearance, they're trying to make the girls look younger than they actually are.... The girls have sex with other people in the films." During the trial, these films were referred to as simulated child pornography.

                had at one time or another purchased one or more items from NMPC.   The name and address of Jeffrey Harvey, the appellant, were found on the mailing list.   The operators of NMPC informed the Customs Service agents that approximately forty to fifty customers from their mailing list had written, specifically requesting child pornography material.   According to NMPC's officers, these letters had been destroyed.   The Customs Service agents, in their investigation of NMPC, found no child pornography material in its possession, and the Customs Service had no evidence that Harvey had requested child pornography material from NMPC
                

In early October 1989, an introductory letter, which Agent Rich prepared, was mailed along with one or two fliers from NMPC to everyone on NMPC's current mailing list. The introductory letter stated:

Dear Customer:

As we have stated in the past there have been certain types of materials that have not been a part of our inventory. Due to certain bans and stateside attitudes we felt it was not in our best interest to stock these items. Because of increased requests and inquiries, we have contracted a company in Belgium[,] "ARTISTE INTERNATIONALE", who [sic] specializes in the extremely hard to obtain erotica. Their guarantee is "If we don't have it, you can't get it".

The letter also stated, "If interested in these types of materials, write directly to them" at a post office box in "Bruxelles, Belgium." Agent Rich further testified that Belgium was a source country for child pornography, and that the post office box in Belgium "was put in there so if that [sic] these individuals are knowledgeable [about] where child pornography comes from, if they were so inclined to be interested in purchasing these types of materials, by putting Belgium in there they may consider this is a place [where] I can buy child pornography." The United States Customs Service, with the cooperation of the Belgium Customs Service, opened and maintained the post office box in Belgium listed in the introductory letter. Correspondence received in that post office box was removed by a United States Customs Service agent, initialed and dated, and then placed unopened in a mailing pouch and sent by registered mail to Agent Rich in the United States.

In a letter postmarked October 14, 1989, addressed to the subject post office box in Belgium, Harvey requested that "a catalog or other literature" be shipped to "Literal Tech"--his place of employment--at a post office box in Syracuse, New York. On November 27, 1989, Harvey sent another letter requesting "a catalog of materials as described in the attached memorandum." Attached to the letter was a photocopy of the introductory letter mailed to Harvey in October 1989. These letters were forwarded by the agent in Belgium to Agent Rich in the United States.

If a person sent a request to the Belgian post office box and sought a general catalog, a "specific interest" response letter was mailed to the correspondent. A representative "specific interest" letter that was prepared in connection with the investigation read:

Dear Friend:

In your latest correspondence you requested materials concerning our products. As we previously related, our current inventory is voluminous. Due to the number of items in our inventory and the radical differences in these items we Therefore, if you could specify the areas in which you are interested we can better service your needs by returning to you the appropriate advertisements.

have found that it is not cost productive to maintain one general catalog of our inventory.

Please forgive this delay, but past experiences have shown this to be the most effective way to satisfy all of our customers.

Sincerely

Artiste Internationale

Such a "specific interest" letter was mailed to Harvey. Agent Rich testified:

Mr. Harvey along with ... many other individuals wrote into the post office box in Belgium and simply requested a catalogue of the product. Now, rather than send these people a catalogue which we already had prepared containing advertisements of child pornography, there still is no indication that Mr. Harvey ... or any of these other individuals might have simply been interested in child pornography....

... From the outset of the operation, then we're asking these people could you please tell us the areas that you're interested in, that [was] the purpose of this letter being mailed to an individual who asked for a general catalogue.

A later letter dated December 12, 1989, which Harvey sent to the post office box in Belgium, stated in part:

Gentlemen:

As per the attached memorandum from you: Please send me a catalog of adult video and/or literature featuring younger performers.

Included with the December 12, 1989 letter was a copy of the "specific interest" letter the government had composed. In another letter dated January 24, 1990, and sent to the post office box in Belgium, Harvey requested "a catalog of adult video featuring young performers." In another letter dated March 6, 1990, and sent to the post office box in Belgium, Harvey wrote:

Gentlemen:

With reference to the attached memorandum from you: I have on SEVERAL OCCASIONS requested an X-rated video catalog featuring your youngest performers. If this is insufficient information, you'll have to send me a list of catalogs you have from which I can choose. This is my FOURTH COMMUNICATION! Please respond.

In the letters dated November 27, 1989, December 12, 1989, January 24, 1990 and March 6, 1990, Harvey provided a return post office box address in Syracuse, New York and each of these letters contained Literal Tech's street address in Syracuse, New York for delivery of the requested materials. In response to these letters received from Harvey, the government prepared, and sent to Harvey an order form and a catalog advertising videotapes, magazines and sets of photographs, between March 6 and April 3, 1990. The catalog advertised that in each videotape, at least one child, between the ages of five and fifteen years, was engaged in explicit sexual activity. In an envelope postmarked April 3, 1990, the...