U.S. v. Lamb

• Decision Date: 05 November 1996
• Docket Number: No. 95-CR-399.,95-CR-399.
• Parties: UNITED STATES of America v. Michael LAMB, Defendant.
• Court: U.S. District Court — Northern District of New York

945 F.Supp. 441

UNITED STATES of America v. Michael LAMB, Defendant.

No. 95-CR-399.

United States District Court, N.D. New York.

November 5, 1996.

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Thomas J. Maroney, United States Attorney, Northern District of New York, Syracuse, NY, for U.S.; Elizabeth S. Riker, Assistant U.S. Attorney, of counsel.

Lewis and Fiore, New York City, for Defendant; David L. Lewis, of counsel.

MEMORANDUM-DECISION AND ORDER

MUNSON, Senior District Judge.

Now before the court are omnibus pretrial motions in this case concerning the receipt, transmission, and possession of computer images of child pornography. The government and defendant consented to the court deciding these motions on submission. Doc. 33. The following constitutes the court's memorandum-decision and order in this matter.

I. BACKGROUND

Defendant is charged in the first superseding indictment, Doc. 30, with twenty-three counts of receiving by computer transmission sexually explicit images of children, in violation of 18 U.S.C. § 2252(a)(2). Counts 24-48 accuse defendant of sending such images by computer, in violation of 18 U.S.C. § 2252(a)(1). Count 49 charges him with possession of three or more visual images of child pornography, punishable under 18 U.S.C. § 2252(a)(4). Finally, the government seeks forfeiture of defendant's computer system.

This prosecution is the product of a comprehensive operation conducted by the Federal Bureau of Investigation known as "Innocent Images." The interest of federal law enforcement officers in the flow of child pornography over the Internet was evidently piqued by the much-publicized case involving the abduction of a ten-year old Maryland boy. See Ex. E att'd to Def.'s Notice of Motion, Doc. 22, at 10-11. Bureau agents investigating the matter discovered that computer on-line services were being used to entice children into sexual encounters with adults, and that child pornography was being distributed regularly by computer. The Baltimore office of the FBI subsequently spearheaded an investigation wherein law enforcement agents would sign on to computer services and attempt to identify traffickers of image files containing child pornography.

Evidence against defendant in the case at bar originated from the Florida Department of Law Enforcement. Ex. F att'd to Def.'s Notice of Motion, Doc. 22, at 14-17. A special agent of that department and a confidential informant signed on to the America OnLine service ("AOL") in an undercover capacity and obtained image files depicting children engaged in explicit sexual conduct. An individual using the screen names¹ "Josh6979" and "JoMi15" was involved in the receipt and transmission of over 100 child pornography images between August 1, 1994 and April 9, 1995. The individual's AOL account number was also learned.

A federal grand jury issued a subpoena to AOL's headquarters in Virginia to discover information about the subscriber corresponding to that account number and to the pertinent screen names. On March 30, 1995 AOL identified the subscriber as the defendant. Id. at 17. Further investigation confirmed that a computer equipped with a modem was located in defendant's home in Marcellus, New York. Id. at 18-20.

On September 13, 1996 federal agents executed search warrants at 125 homes and businesses in furtherance of Innocent Images. One home searched was Michael Lamb's. During the execution of the search he was interviewed. Defendant made potentially incriminating statements and wrote out and signed a statement. See Ex. A att'd to Def.'s Notice of Motion, Doc. 22. A search of the hard drive on defendant's computer revealed that it contained many child pornography image files. Adult pornographic materials were also found at defendant's house, along with marijuana. Defendant was later indicted and arrested.

II. DISCUSSION

Defendant seeks omnibus pretrial relief in the following particulars: dismissal of the indictment on the grounds that the statute at issue is unconstitutionally overbroad, is overbroad as applied, is void for vagueness, and violates principles of substantive and procedural due process; motion for a pretrial evidentiary hearing to determine whether the images in the indictment are of actual children; suppression of evidence seized pursuant to the warrant executed to search AOL's Virginia offices; suppression of evidence seized pursuant to the warranted search of his home; dismissal of counts 6, 9, and 32 as impossible; exclusion of adult pornography from being offered at trial; exclusion of the use of prior bad acts at trial; discovery of the government's role in the transmission and creation of the images at issue; individually sequestered voir dire; exclusion of any contemplated expert testimony on pedophilia; disclosure of any Federal Rule of Evidence 404 or 609 material the government intends to introduce at trial; and dismissal of the indictment based on the government's "outrageous conduct." Defendant has withdrawn his motion to suppress his statements to the FBI as violative of the Fifth Amendment. However, he has also moved to exclude the statements as a fruit of the allegedly unconstitutional search of his home. The government cross-moves for reciprocal discovery. The requested relief is discussed below.

A. Constitutionality of Statute

Any facial challenge to a statute must naturally begin with the language of the law itself:

(a) 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;

(2) knowingly receives, or distributes, any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, or knowingly reproduces any visual depiction for distribution in interstate or foreign commerce by any means including by computer or through the mails, 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;

[or]

(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. § 2252(a)(1), (2), & (4)(B).

Defendant challenges the statute he is charged under as unconstitutionally overbroad and vague. As these arguments are legally intertwined, the court treats them together. See Local 189 Int'l Union of Police Ass'ns v. Barrett, 524 F.Supp. 760, 765 (N.D.Ga.1981). The court then briefly addresses defendant's claim that the rule in Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969) permits an individual to possess child pornography in the privacy of his home. The substantive and procedural due process challenges to the statute are addressed at the end of this section.

1. Overbreadth and Vagueness

A statute is overbroad under the First Amendment when in addition to proscribing activities which may properly be forbidden, it also sweeps within its coverage activity protected by the guarantee of free speech. E.g., Cantwell v. Connecticut, 310 U.S. 296, 304, 60 S.Ct. 900, 903-04, 84 L.Ed. 1213 (1940); Thornhill v. Alabama, 310 U.S. 88, 97-98, 60 S.Ct. 736, 741-742, 84 L.Ed. 1093 (1940). The overbreadth doctrine is powerful in free expression cases, as the movant need not demonstrate that his or her conduct was protected, as long as the court is persuaded that the statute infringes upon an unacceptable level of activity privileged under the First Amendment. See Kunz v. New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (1951). Only a statute that is substantially or facially overbroad however will be struck in its entirety. Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2917-18, 37 L.Ed.2d 830 (1973). Defendant contends that the statute in question strikes indiscriminately at categories of expression that cannot be punished consonant with the First Amendment.

Defendant also raises the related doctrine of vagueness. A statute will be held void for vagueness if the proscribed activity is so unclearly defined that persons of common intelligence must necessarily guess at it meaning and differ as to its application. Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127-28, 70 L.Ed. 322 (1926). Laws that are overbroad and/or vague share common vices. First, the essentially unfettered discretion granted to police officers in applying them leads to selective enforcement. See Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 1858-59, 75 L.Ed.2d 903 (1983) (vagueness; statute struck because it vested "virtually complete discretion" in the police); Kunz, 340 U.S. at 295, 71 S.Ct. at 315-16 (overbreadth; "no appropriate standards" to guide officials). Second, uncertainty as to just what is prohibited chills the speech rights of the citizenry. See Arnett v. Kennedy, 416 U.S. 134, 231, 94 S.Ct. 1633, 1682, 40 L.Ed.2d 15 (1973) (Marshall, J., dissenting) (overbreadth)²; John E. Nowak & Ronald D. Rotunda, Constitutional Law § 16.9, at 1001 (5th ed. 1995) (vagueness). This is so because "[w]hen one must guess what conduct or utterances may lose him his position, one necessarily...