U.S. v. Richardson, 88-5017

• Decision Date: 12 September 1988
• Docket Number: No. 88-5017,88-5017
• Citation: 856 F.2d 644
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Larry Cobb RICHARDSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 644

856 F.2d 644

UNITED STATES of America, Plaintiff-Appellee, v. Larry Cobb RICHARDSON, Defendant-Appellant.

No. 88-5017.

United States Court of Appeals Fourth Circuit.

Argued July 13, 1988.

Decided Sept. 12, 1988.

J. David James (Michael K. Curtis, Smith, Patterson, Follin, Curtis, James & Harkavy, Greensboro, N.C., on brief), for defendant-appellant.

Robert H. Edmunds, Jr., U.S. Atty., Greensboro, N.C., on brief) for plaintiff-appellee.

Before CHAPMAN, WILKINSON and WILKINS, Circuit Judges.

WILKINS, Circuit Judge:

Larry Cobb Richardson appeals following the entry of a conditional guilty plea to receiving video cassettes involving the sexual exploitation of minor in violation of 18 U.S.C.A. Sec. 2252(a)(2) (West 1984 & Supp.1988). We affirm.

I.

Richardson was contacts by a representative of the United States Postal Service posing as a pornography distributor in a sting operation after Richardson's name was found on the mailing list of a large-scale distributor of child pornography. In response to the initial inquiry, Richardson indicated an interest in child-related material. Thereafter, Richardson requested catalogs and ultimately purchased three video tapes, all of which contained sexually explicit conduct involving minors.

On the same day that Richardson received the videotapes in the mail, a search warrant was executed at his residence. In addition to the three videotapes, authorities seized various other items from his residence, including a quantity of pornographic material involving children. Richardson moved to suppress all of the items seized under the warrant. The district court granted this motion in part, suppressing all of the material taken from Richardson's home with the exception of the three videotapes mailed in the sting operation.

Richardson also moved to dismiss the indictment on the ground that he was being selectively prosecuted because of his exercise of a first amendment right. He contended that unlike four other defendants indicted with him on the same day for the same offense, he was not offered the opportunity to participate in a pretrial diversion program operated by the office of the United States Attorney. He asserted that the basis for the decision of the United States Attorney not to offer him the option of participating in the program was because of the child pornography found in his home, which he claimed was protected by the first amendment.

In addition to arguing that decisions on pretrial diversion should not be subject to judicial review, the government pointed to several factors which led to the decision not to offer Richardson pretrial diversion. First, Richardson responded to yet another advertisement featuring child pornography after his home had been searched and he had been arrested; second, the volume of child pornography uncovered in the home was relevant to the decision not to divert since child pornography is not constitutionally protected; and third, during the search of Richardson's home he stated to one of the investigators that he knew receiving the material was illegal but that he nevertheless intended to continue this activity.

The district court denied Richardson's motion to dismiss, finding that the government's proffered reasons for not offering him the pretrial diversion program demonstrated that selective prosecution had not occurred. The court concluded that a hearing on this issue was unwarranted and unnecessary. Richardson subsequently entered a conditional guilty plea pursuant to Federal Rule of Criminal Procedure 11, preserving the selective prosecution issue.

II.

Pretrial diversion is an alternative to prosecution which allows diversion of selected offenders from the traditional criminal justice process. United States Attorneys are authorized to use the diversion alternative in their districts under Department of Justice guidelines. Participation occurs only after a defendant has accepted an offer of the United States Attorney and after an agreement has been reached detailing the conditions which the defendant must meet. A participant who successfully completes the program is not prosecuted for the offense, any indictment or information against him is discharged, and the permanent criminal record of the offense is expunged.

A defendant has no right to be placed in pretrial diversion. United States v. Hicks, 693 F.2d 32, 34 (5th Cir.1982), cert. denied, 459 U.S. 1220, 103 S.Ct. 1226, 75 L.Ed.2d 461 (1983). The decision of whether a particular defendant will be allowed the opportunity to participate in the program is one entrusted to the United States Attorney. Like other prosecutorial decisions, the government has broad discretion in determining which defendants are best suited for pretrial diversion. See ...