U.S. v. Moncini, 88-5286

• Decision Date: 11 August 1989
• Docket Number: No. 88-5286,88-5286
• Citation: 882 F.2d 401
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alessandro MONCINI, aka: Sandro Moncini, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 401

882 F.2d 401

UNITED STATES of America, Plaintiff-Appellee, v. Alessandro MONCINI, aka: Sandro Moncini, Defendant-Appellant.

No. 88-5286.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 1, 1989.

Decided Aug. 11, 1989.

Stanley I. Greenberg, Los Angeles, Cal., for defendant-appellant.

Harriet M. Rolnick, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Before FLETCHER, NELSON and NORRIS, Circuit Judges.

FLETCHER, Circuit Judge:

Alessandro Moncini, a citizen and resident of Italy, appeals his conviction under 18 U.S.C. Sec. 2252(a) for mailing child pornography from Italy to an undercover officer in the United States. He raises three issues on appeal: (1) whether the district court lacked jurisdiction over him; (2) whether the government should have been required to prove that he knew he was violating American law, or, in the alternative, whether the district court should have recognized ignorance of the law as an affirmative defense; and (3) whether the district court erred in finding that he was not entrapped. We affirm.

FACTS

Moncini was contacted by Detective William H. Dworin of the Los Angeles Police Department after Dworin discovered Moncini's name and address in a search of an American pornography collector. Dworin sent Moncini a letter containing a photograph of a nude girl, inquiring whether Moncini would be interested in trading child pornography. Dworin led Moncini to believe the American pornography collector was a mutual acquaintance.

Moncini wrote back and asked for more pictures. Dworin complied, but Moncini did not reciprocate by sending similar pictures in return. Dworin eventually asked Moncini to send him some child pornography Moncini was arrested when he arrived in New York in early 1988. He was tried in the Central District of California, which includes Valencia, the place to which the photos were sent. His motion to dismiss the indictment for lack of jurisdiction was denied on the ground that the mailings were continuing offenses which continued to take place as Moncini's letters traveled from Italy to California, giving the court territorial jurisdiction. Alternately, the court found that extraterritorial jurisdiction would be proper.

                offering to send Moncini more explicit material if Moncini would send him child pornography to prove his involvement "with the young ones."    Moncini responded by sending some pages torn from a commercially sold pornography magazine.  He subsequently mailed additional pictures and a videotape.  Moncini concedes that these pictures and videotape were child pornography of the type proscribed by 18 U.S.C. Sec. 2252
                

Moncini waived jury trial. His principal defense was ignorance of the law. The district court received uncontroverted evidence in the form of an affidavit by a former member of the Italian bar that the mailing of child pornography is legal in Italy so long as it is not for commercial purposes or purposes of public display. Moncini asserts that he was unaware that his mailing of child pornography was a crime in the United States. The court convicted him and sentenced him to a year-and-a-day custodial sentence. He has completed his sentence and is now at liberty.

ANALYSIS

A. Jurisdiction

The propriety of the exercise of jurisdiction is a question of law which we review de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.1984) (en banc). The government argues two possible bases for jurisdiction over Moncini. Jurisdiction is proper if the offense, or part of the offense, occurred within the United States. See Rocha v. United States, 288 F.2d 545, 547 (9th Cir.1961). Alternately, jurisdiction may be proper even if no part of the offense occurred in the United States, if grounds for exercising extraterritorial jurisdiction are present. Id. at 548. We agree with the government that Moncini's mailing of child pornography was a continuing offense, so that part of the offense was committed in the United States as his letters traveled through the mail and were delivered to their destination, and reject Moncini's argument that the crime was complete at the time the letter was deposited in the mail in Italy. We do not reach the parties' arguments concerning the extraterritorial scope of the child pornography laws.

The government's argument is based on the interaction of two statutory provisions. 18 U.S.C. Sec. 2252(a) (Supp. V 1987), the substantive penal law under which Moncini was indicted, refers to:

(a) Any person who--

(1) knowingly transports or ships in interstate or foreign commerce or mails, any visual depiction [as defined by the statute] ...

18 U.S.C. Sec. 3237(a) (Supp. V 1987), a venue provision of general applicability, provides in part:

Any offense involving the use of the mails ... is a continuing offense and, except as otherwise expressly provided ..., may be ... prosecuted in any district from, through, or into which such ... mail matter ... moves.

Section 3237(a) may be used to establish venue under Sec. 2252. United States v. Langford, 688 F.2d 1088, 1094 (7th Cir.1982). ¹ Moncini argues that Sec. 3237(a) defines continuing offenses solely for the purpose of establishing venue, and is therefore irrelevant to the threshold question of whether there is federal jurisdiction. This argument ignores the conjunctive structure of the statute. The first clause of the second paragraph of Sec. 3237(a) clearly states that "[a]ny offense involving the use Moncini asserts that where federal jurisdiction is based on the use of the mails, the act of mailing completes the crime. However, whether this is the case depends on the precise wording of the particular statute. For example, United States v. Ross, 205 F.2d 619 (10th Cir.1953), on which Moncini relies, arose under a statute requiring that the defendant "knowingly deposit[ ] for mailing or delivery...." Ross, 205 F.2d at 620 (construing 18 U.S.C. Sec. 1461). Ross held that under Sec. 1461 the offense was complete at the time of deposit, so that there was no jurisdiction in the district where the letter was delivered. Id. ²

                of the mails ... is a continuing offense."    To hold that the use of the mails is a continuing offense for purposes of venue but not jurisdiction would require the illogical conclusion that the act of mailing prohibited material could be deemed to occur in districts through which the letter passes without also occurring within the United States
                

We conclude that Moncini's deposit of mail in Italy, intended for delivery to the United States, resulted in acts within the territory of the United States when the mail entered and traveled within the United States, so that the district court's exercise of territorial jurisdiction was proper.

B. Mens Rea

Moncini argues that the statutory language "[a]ny person who ... knowingly ... mails[ ] any visual depiction," 18 U.S.C. Sec. 2252(a) (emphasis added), requires the government to prove that he knew his mailings were illegal under federal law. In the alternative, Moncini argues that the failure to require such proof of mens rea violates due process. We review these legal claims de novo. McConney, 728 F.2d at 1201.

1. Statutory Mens Rea

Section 2252(a) requires that the government prove that the defendant had knowledge of the nature of the contents of the visual depictions and that the depictions were to be transported or shipped in interstate or foreign commerce or mailed. See United States v. Brown, 862 F.2d 1033, 1036 (3d Cir.1988) (recipient must know that material received is child pornography, but need not know precise contents of material); United States v. Marchant, 803 F.2d 174, 176-77 (5th Cir.1986) (same); United States v. Esch, 832 F.2d 531, 540 (10th Cir.1987) (construing Sec. 2251; knowledge that material was to be mailed), cert. denied, --- U.S. ----, 108 S.Ct. 1084, 99 L.Ed.2d 242 (1988). Attempts to expand on this knowledge requirement have consistently failed. See, e.g., United States v. Kleiner, 663 F.Supp. 43 (S.D.Fla.1987) (no need to prove defendant knew age of individuals depicted) ³; United States v. Tolczeki, 614 F.Supp. 1424, 1429 (N.D. Ohio 1985) (no need to prove knowledge of illegality). We agree with the government that there is no basis for reading such a mens rea requirement into Sec. 2252.

Moncini bases his statutory interpretation argument on cases construing the word "knowingly" under other statutes. However, what these statutes have in common, and what serves to distinguish them from Sec. 2252(a), is that they all incorporate knowledge of illegality as an element of the offense. Under these statutes, the illegality is a fact of which the defendant must be aware to have the necessary mens rea.

For example, 31 U.S.C. Sec. 1101 (1976), construed in United States v. Granda, 565 F.2d 922 (5th Cir.1978), required any person who "knowingly" brought over $5,000 into this country to fill out a certain form; another statute, 31 U.S.C. Sec. 1058 (1976) The decisions in Liparota v. United States, 471 U.S. 419, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985), and United States v. Pollard, 724 F.2d 1438 (6th Cir.1984) (per curiam), are similarly distinguishable. Those cases construed 7 U.S.C. Sec. 2024(b), which makes it a crime to "knowingly ... acquire[ ] [food stamps] ... in any manner not authorized by [law]." Under Sec. 2024(b), the illegality of the acquisition is itself an element of the crime, and the word "knowingly" as used in that statute can logically be interpreted to refer to knowledge of that illegality. See Liparota, 471 U.S. at 424 & n. 7, 105 S.Ct. at 2087 & n. 7. However, as Liparota makes clear, Sec. 2024(b) does not include a general "mistake of law" defense, under which a defendant could claim that he did not know it was illegal to acquire food stamps in an unauthorized manner. Id. at 425 n. 9, 105 S.Ct. at 2088 n. 9. As an additional example, Liparota notes that it is a defense to a charge of receiving stolen goods...