U.S. v. Knox
| Decision Date | 09 June 1994 |
| Docket Number | No. 92-7089,92-7089 |
| Citation | 32 F.3d 733 |
| Parties | UNITED STATES of America v. Stephen A. KNOX, Appellant. |
| Court | U.S. Court of Appeals — Third Circuit |
Alan Silber (argued), Hayden, Perle & Silber, Weehawken, NJ, for appellant Stephen A. Knox.
Kathleen A. Felton (argued), U.S. Dept. of Justice, Appellate Section, Crim. Div., Washington, DC, for appellee U.S.
Edward W. Warren (argued), Kirkland & Ellis, Washington, DC, for amici curiae 234 Members of Congress.
Michael A. Bamberger (argued), Sonnenschein, Nath & Rosenthal, New York City, for amici curiae American Booksellers Foundation for Free Expression; Council for Periodical Distributors Ass'ns; Nat. Ass'n of Artists' Organizations; Periodical and Book Ass'n of America, Inc.; Aperture Foundation, Inc.; Freedom to Read Foundation; Magazine Publishers of America; American Civil Liberties Union; Law & Humanities Institute.
H. Robert Showers, Nat. Law Center for Children and Families, Fairfax, VA, for amici curiae Nat. Law Center for Children and Families; The Nat. Parent Teacher Ass'n, Nat. Coalition Against Pornography; "Enough is Enough!"; Childhelp USA; Child Welfare League of America; Nat. Center for Missing and Exploited Children; American Coalition for Abuse Awareness; Nat. Council of Catholic Women; Justice for Children; Alliance for the Rights of Children; Women Against Pornography; Lutheran Church Missouri Synod; Christian Coalition; Focus on the Family; Family Violence & Sexual Assault Institute; Family Research Council, Inc.; National Center for Redress of Incest and Sexual Abuse; Rabbinical Alliance of America; Christian Life Commission of the Southern Baptist Convention; Christian Action Network; Help us Regain the Children; Free Congress Research and Education Foundation; Coalitions for America; Save America's Youth, Inc.; Citizens Against Pornography; Pennsylvania Christian Coalition; Traditional Values Coalition; Christian Legal Defense and Education Foundation; Eagle Forum; Child Protection Lobby; Voices for Victims; Voices in Action, Inc.
Ronald D. Ray, Louisville, KY, for amicus curiae The Institute for Media Educ.
James P. Mueller, Nat. Family Legal Foundation, Phoenix, AZ, for amici curiae Nat. Family Legal Foundation; Morality in Media, Inc.
Before: HUTCHINSON, COWEN and WEIS, Circuit Judges.
The principal question presented by this appeal is whether videotapes that focus on the genitalia and pubic area of minor females constitute a "lascivious exhibition of the genitals or pubic area" under the federal child pornography laws, 18 U.S.C. Secs. 2252(a)(2) (4) and 2256(2)(E) (1988 & Supp. IV 1992), even though these body parts are covered by clothing. When this case first came before us, we held that such visual depictions do qualify as lascivious exhibitions and that this interpretation does not render the statute unconstitutionally overbroad. United States v. Knox, 977 F.2d 815, 820-23 (3d Cir.1992), vacated and remanded, --- U.S. ----, 114 S.Ct. 375, 126 L.Ed.2d 325 (1993).
At the Supreme Court's instruction, we have further considered this case "in light of the position asserted by the Solicitor General in his brief for the United States," Knox v. United States, --- U.S. ----, 114 S.Ct. 375, 126 L.Ed.2d 325 (1993). In that brief and in its subsequent brief filed in this court after the Supreme Court remand, the government argues that the plain language of the statute requires the genitals or pubic area exhibited to be at least somewhat visible or discernible through the child's clothing. We hold that the federal child pornography statute, on its face, contains no nudity or discernibility requirement, that non-nude visual depictions, such as the ones contained in this record, can qualify as lascivious exhibitions, and that this construction does not render the statute unconstitutionally overbroad. Finally, we again conclude that the government presented sufficient evidence at the bench trial to establish both the necessary mens rea and the delivery of the films through interstate mail. We thus will reaffirm Knox's conviction.
In March of 1991, the U.S. Customs International Branch intercepted a mailing to France which contained a request that two videos, "Little Girl Bottoms (Underside)" and "Little Blondes," be sent to J. Richard Scott, 210 West Hamilton Avenue, No. 108, State College, Pennsylvania. The parcel also contained a check drawn on the account of defendant Stephen A. Knox and bearing his signature. The check listed his address as 210 East Hamilton Avenue, No. 25, State College, Pennsylvania. A second envelope addressed to J. Richard Scott from the Netherlands also was confiscated and contained a catalogue advertising for sale videotapes depicting nude, semi-clothed, and clothed minors. Aware that Knox previously had been convicted of receiving child pornography through the mail, the customs investigators obtained a search warrant and with the assistance of the Pennsylvania State Police searched his apartment. 1
The police officers seized three video cassettes produced by the Nather Company (hereafter "Nather Tapes"), a videotape distribution company based in Las Vegas, Nevada. A catalogue from the Nather Company with checkmarks next to several video selections was also removed from Knox's apartment. One of the marked videos in the brochure corresponded to a segment of a compilation tape which was seized. Envelopes addressed to Nather and Nather mail order forms were discovered as well as a carbon copy of a money order payable to Nather Company for an amount approximately equal to the price of a single video.
The tapes contained numerous vignettes of teenage and preteen females, between the ages of ten and seventeen, striking provocative poses for the camera. The children were obviously being directed by someone off-camera. All of the children wore bikini bathing suits, leotards, underwear, or other abbreviated attire while they were being filmed. The government conceded that no child in the films was nude, and that the genitalia and pubic areas of the young girls were always concealed by an abbreviated article of clothing. The photographer would zoom in on the children's pubic and genital area and display a close-up view for an extended period of time. Most of the videotapes were set to music. In some sequences, the child subjects were dancing or gyrating in a fashion not natural for their age. The films themselves and the promotional brochures distributed by Nather demonstrate that the videotapes clearly were designed to pander to pedophiles.
The United States prosecuted Knox based exclusively on the three Nather tapes. Knox was indicted on two counts: (1) knowingly receiving through the mail visual depictions of a minor engaged in sexually explicit conduct; and (2) knowingly possessing three or more videotapes that contain a visual depiction of a minor engaging in sexually explicit conduct in violation of 18 U.S.C. Sec. 2252(a)(2) and (4). "Sexually explicit conduct" for both of these offenses is defined to include a "lascivious exhibition of the genitals or pubic area." Id. Sec. 2256(2)(E).
Pursuant to Federal Rule of Criminal Procedure 12(b), Knox filed a pre-trial motion to dismiss the indictment contending that the videos did not contain an "exhibition" of the genitals or pubic area since these areas were always covered by underwear, leotards, or a bathing suit. Knox and the government agreed to a pre-trial hearing to determine whether the indictment was facially sufficient. The district judge viewed portions of the Nather tapes which the parties stipulated were representative of the material contained in the videos. To determine the meaning of the statutory language "exhibition of the ... pubic area," the district court looked to the plain meaning of the words. Since the pubic area is located directly adjacent to the genitalia, the district court concluded that other areas in close proximity to the genitals, specifically the "uppermost portion of the inner thigh," were also included in the statutory definition of the pubic area. District Court Memorandum at 14; App. at 41. Since the upper portion of the inner thigh was clearly exposed, the court held that the tapes contained an exhibition of the pubic area, and therefore denied Knox's motion to dismiss the indictment.
Knox waived his right to a jury trial and a bench trial was held. At the bench trial, all of the exhibits and testimony from the pre-trial hearing were incorporated into the record for purposes of the trial. Additionally, the government admitted into evidence advertising catalogues from Nather, Nather mail order forms, and envelopes addressed to the Nather Company which were seized from Knox's apartment. The catalogues described in detail the contents and intended effect of the films that could be purchased:
"Sassy Sylphs" will blow your mind so completely you'll be begging for mercy.
Just look at what we have in this incredible tape: about 14 girls between the ages of 11 and 17 showing so much panty and ass you'll get dizzy. There are panties showing under shorts and under dresses and skirts; there are boobs galore and T-back (thong) bathing suits on girls as young as 15 that are so revealing it's almost like seeing them naked (some say even better).
District Court Memorandum at 11; App. at 38.
The government also introduced evidence to establish that Nather mailed the tapes from its office in Nevada to the mailbox which Knox had rented under a fictitious name. Finally, the carbon copy of a sixty-two dollar money order payable to Nather was admitted to prove the method of payment. Although Knox did not testify and called no defense witnesses, he introduced magazine advertisements for Nather's videotapes which claimed that...
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