U.S. v. Petrov

• Citation: 747 F.2d 824
• Decision Date: 05 October 1984
• Docket Number: D,No. 954,954
• Parties: 16 Fed. R. Evid. Serv. 934 UNITED STATES of America, Plaintiff-Appellee, v. Anthony PETROV, Defendant-Appellant. ocket 83-1401.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 824

747 F.2d 824

16 Fed. R. Evid. Serv. 934

UNITED STATES of America, Plaintiff-Appellee, v. Anthony PETROV, Defendant-Appellant.

No. 954, Docket 83-1401.

United States Court of Appeals,

Second Circuit.

Argued March 23, 1984.

Decided Oct. 5, 1984.

William C. Bryson, Dept. of Justice, Washington, D.C. (Frederick J. Scullin, Jr., U.S. Atty., N.D.N.Y., Gregory A. West, Gary L. Sharpe, Asst. U.S. Attys., Syracuse, N.Y., of counsel), for plaintiff-appellee.

Herald P. Fahringer, New York City (Lipsitz, Green, Fahringer, Roll, Schuller & James, New York City, of counsel, Diarmuid White, Legal Asst., New York City, on brief), for defendant-appellant.

Before LUMBARD, NEWMAN, and PRATT, Circuit Judges.

GEORGE C. PRATT, Circuit Judge.

Anthony Petrov appeals from a judgment of the United States District Court for the Northern District of New York, Howard G. Munson, Chief Judge, convicting him, after a jury trial, of one count of conspiracy in violation of 18 U.S.C. Sec. 371 and ten counts of mailing obscene material in violation of 18 U.S.C. Sec. 1461. For the reasons set forth below, and in the opinions of Judge Lumbard and Newman, counts 1, 2, 3, 5 and 6 are reversed and remanded for a new trial, and counts 7, 8, 9, 10, 11 and 12 are affirmed. Count 4 was dismissed by the trial court.

I. BACKGROUND

Petrov is a commercial film processor. Through his mail order business, Spectra Photo, located in North Syracuse, New York, he develops and prints photographs from exposed film, negatives, and prints mailed to him by customers. For this business and for his related retail photo processing business, operated from the same quarters under the name Crystal Photo, defendant had 22 full-time employees and several part-time employees. During 1982 and 1983 his combined operations processed approximately four million photographs for people all over the country. Much of Spectra's business was generated through advertisements in numerous "adult" magazines for a "confidential" and "uncensored" photo processing service.

Petrov's prosecution in this case is based primarily on a large number of allegedly obscene photographs that Spectra processed for, and mailed back to, eleven different customers. These processed orders formed the basis for the eleven substantive counts of the twelve count indictment.

After a six-week trial, the jury acquitted Petrov's two employee-codefendants, but found Petrov guilty of mailing obscene material on ten of the eleven substantive counts brought under 18 U.S.C. Sec. 1461. The jury also found Petrov guilty of a conspiracy to violate Sec. 1461 (mailing obscene material) and 18 U.S.C. Sec. 2251 (sexual exploitation of children). Defendant was given concurrent, split sentences of six months' imprisonment, followed by three years' probation. In addition, he was fined $10,000 on count 1 and $5,000 on each of the other ten counts, for a total fine of $60,000.

The significant issues before us on appeal are whether the activities of a photo processor such as Petrov violate 18 U.S.C. Sec. 1461, which prohibits the mailing of obscene matter, and also 18 U.S.C. Sec. 2251, which prohibits the sexual exploitation of children; whether Petrov was prejudiced by the trial court's submission of the issue of sexual exploitation of children to the jury; whether there was sufficient evidence to establish that the photographs admitted on counts 7 through 12 appealed to the prurient interest of a clearly defined deviant group; and whether the trial court unduly restricted Petrov's proof of the community standards for obscenity. Further issues raised in the briefs have been considered and rejected as not meriting comment. Relevant facts will be discussed as needed.

II. SECTION 1461

With great force, Judge Newman argues in dissent that the entire indictment should be dismissed because, in enacting 18 U.S.C. Sec. 1461, Congress did not intend to criminalize the activities of commercial photo processors such as Petrov. Yet Sec. 1461, as Judge Newman acknowledges, is broadly worded. It reaches "whoever" knowingly mails obscene matter. This description includes Petrov, who processed obscene photographs and, knowing that the material was obscene, mailed the completed orders back to his customers. See United States v. Reidel, 402 U.S. 351, 356, 91 S.Ct. 1410, 1412, 28 L.Ed.2d 813 (1971). If congress did not intend to subject photo processors to criminal liability under Sec. 1461, it would have written Sec. 1461 to reflect that intent, either by narrowing its scope with limiting language or by carving out a specific exception for photo processors. Not only has congress done neither of these things, but the Supreme Court has consistently construed the language of Sec. 1461 broadly. See, e.g., Reidel, 402 U.S. at 355-56, 91 S.Ct. at 1412-1413; cf. United States v. Orito, 413 U.S. 139, 141-44, 93 S.Ct. 2674, 2676-2678, 37 L.Ed.2d 513 (1973) (Sec. 1462). While we might agree with Judge Newman's concern over the wisdom of applying this statute to the activities of commercial photo processors, we think it is for congress, and not this court, to create exceptions to the statute's clearly expressed, broad coverage. We hold, therefore, that the activities in question here fall under the purview of Sec. 1461.

III. SECTION 2251

Petrov contends that his entire trial was unfairly prejudiced because the government injected the highly volatile issue of child pornography into the proceedings through its charge that defendant conspired not only to mail obscene materials in violation of Sec. 1461, but also to engage in the sexual exploitation of minors in violation of Sec. 2251. This claim consists of two issues: (a) Was Petrov properly charged with conspiracy to violate Sec. 2251? (b) If not, was Petrov unfairly prejudiced by the trial court's denial of his motions to strike the alleged violation of Sec. 2251?

Count 1 of the indictment charged a conspiracy among Petrov, his two codefendants, and others, to commit two offenses against the United States: to mail obscene matter in violation of 18 U.S.C. Sec. 1461, and to sexually exploit minors in violation of 18 U.S.C. Sec. 2251. Petrov does not challenge the legal sufficiency of the Sec. 1461 purpose of the conspiracy. He does challenge, however, the Sec. 2251 purpose, claiming that his activities as a commercial photo processor, the only conduct charged against him in this case, cannot be prosecuted under Sec. 2251.

Section 2251(a) provides:

Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, any sexually explicit conduct for the purpose of producing any visual or print medium depicting such conduct, shall be punished as provided under subsection (c), if such person knows or has reason to know that such visual or print medium will be transported in interstate or foreign commerce or mailed, or if such visual or print medium has actually been transported in interstate or foreign commerce or mailed.

Congress enacted Sec. 2251(a) as part of the Protection of Children Against Sexual Exploitation Act of 1977, Pub.L. No. 95-225, Sec. 2(a), 92 Stat. 7, 8 (1978) (codified at 18 U.S.C. Secs. 2251-53), whose purpose was to combat a proliferation of child pornography throughout the country. S.Rep. No. 438, 95th Cong., 2d Sess. 5-11 (1977), reprinted in 1978 U.S.Code Cong. & Ad.News 40, 42-48. Congress believed this legislation was necessary to deal with the commercial exploitation of sexual activity involving children because then-existing federal law focused "almost exclusively on the sale, distribution and importation of obscene materials" and did not "directly address the abuse of children inherent in their participation in the production of such materials." Id. at 15, 1978 U.S.Code Cong. & Ad.News at 53.

Indisputably, Petrov had no direct involvement in using, employing, or persuading minors to engage in any explicit sexual conduct depicted in any of the photographs Spectra developed. Instead, the government argues that because processing film is an integral part of the production of child pornography, Petrov's position is not materially distinguishable from that of the person who actually induces the minor to be photographed. Consequently, the government argues, by advertising his availability to process such "confidential" photographs, and by repeatedly doing so, Petrov has conspired to violate Sec. 2251. We disagree.

The plain language of Sec. 2251(a) defeats the government's argument. Its proscribed acts are those of someone who "employs, uses, persuades, induces, entices or coerces" a minor to engage in sexually explicit conduct, and even those acts are not covered unless done "for the purpose of producing any visual or print medium depicting such conduct". Section 2251(a) does not purport to proscribe the entire process that creates child pornography; instead, it is narrowly drawn to reach only those people who deal with children directly. Absent some indication that Petrov's conduct aided his customers in procuring the participation of children, we cannot sustain the government's theory.

The fact that some of Petrov's customers may have been repeat customers does not alter this result. There is no evidence that any of the children were enticed or induced after Petrov processed photographs for these customers, or even that he knew when those acts occurred. In fact, since most of Spectra's customers sent in previously developed prints, or negatives of photographs already developed, the connection between Petrov and the children's sexual conduct is even more attenuated than if Spectra had developed and printed them from exposed film. In short, the evidence was insufficient to demonstrate any implicit or explicit agreement by Petrov that contemplated the use of minors for creating pornographic pictures.

Moreover, Pub.L. No. 95-225 also includes Sec. 2252, entitled "Certain Activities...