U.S.A. v. Sherman

• Decision Date: 11 October 2001
• Docket Number: No. 00-2961,00-2961
• Citation: 268 F.3d 539
• Parties: (7th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GEORGE SHERMAN, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 539

268 F.3d 539 (7th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GEORGE SHERMAN, Defendant-Appellant.

No. 00-2961

In the United States Court of Appeals For the Seventh Circuit

ARGUED JANUARY 18, 2001

DECIDED October 11, 2001

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 99 CR 194--Blanche M. Manning, Judge.

Before CUDAHY, KANNE and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

George Sherman pled guilty to one count of receiving child pornography that had been mailed, shipped and transported in interstate or foreign commerce, in violation of 18 U.S.C. sec. 2252A(a)(2)(A). He stipulated to conduct charged in two other counts, including (1) mailing, transporting and shipping child pornography in interstate or foreign commerce, in violation of 18 U.S.C. sec. 2252A(a)(1); and (2) possessing videotapes and other material containing images of child pornography, which had been mailed, shipped, and transported in interstate or foreign commerce, in violation of 18 U.S.C. sec. 2252A(a)(5)(B). The district court declined to group the counts together for sentencing purposes, and sentenced him to 30 months' imprisonment. Sherman appeals, and we affirm.

I.

For several months in 1998, George Sherman corresponded with an individual by the name of Jason who resided in Canada. In September of that year, he mailed an envelope containing a letter and a videotape from Chicago to Jason in Ontario. The letter stated, "Here's your tape. Hope you enjoy it, Where's the TAPE that you are sending me???" The videotape contained approximately six hours of footage, and roughly 70% of the tape depicted minors, including prepubescent minors, engaged in sexually explicit activity. Canadian postal inspectors seized this tape, and alerted authorities in the United States. Although Sherman was not arrested at that time, this seizure eventually resulted in Count One of the indictment, which charged Sherman with knowingly mailing transporting and shipping child pornography in interstate or foreign commerce, in violation of 18 U.S.C. sec. 2252a(a)(1).

Having been alerted by Canadian officials, the United States Customs Service searched Sherman's Chicago apartment in December 1998. The Customs Service recovered eight additional videotapes which also contained images of prepubescent minors engaged in sexually explicit activity. Again, Sherman was not arrested at that time, and this seizure resulted in Count Two of the indictment, charging Sherman with knowingly possessing videotapes and other material containing child pornography, which had been mailed, shipped and transported in interstate or foreign commerce, in violation of 18 U.S.C. sec. 2252A(a)(5)(B).

Apparently, the Customs Service was not the only agency that had been alerted to Sherman's interest in child pornography. The Federal Bureau of Investigation asked the United States Postal Inspection Service to conduct an investigation of Sherman's involvement in child pornography. The record does not reveal the source of the FBI's suspicions about Sherman, except to state that this investigation was entirely independent of any action by Canadian authorities or the Customs Service. At the FBI's instigation, an agent of the Postal Inspection Service conducted an undercover investigation of Sherman. The agent mailed a letter to Sherman, introducing himself as "Lou and Ann," the owners of "Foreign Films Etcetera," a business specializing in visual materials "very much outside the norm." The introductory letter apparently piqued Sherman's interest and after a series of letters back and forth, he ordered a video and a photo set from "Lou and Ann," enclosing his payment with the order. The video was titled "Boys-3." According to the brochure sent by the fictional "Lou and Ann," the video contained sexual activity between two boys aged 12 and 13. The photo set was titled "Chicken For Hire" and portrayed, according to the promotional materials, "uninhibited boys aged 8 to 15," engaged in various sexual acts. Sherman also filled out a "sexual interests survey" for "Lou and Ann," checking off as areas of interest the categories of "chickenhawk" and "incest," among other things.¹ On a blank line for "special requests," Sherman wrote "young, underage." He also indicated an interest in buying and trading materials. "Lou and Ann" had expressly warned Sherman that some of the materials they sold were "very illegal."

In March 1999, the agent prepared a controlled delivery of the materials that Sherman ordered. Sherman signed a delivery receipt for the materials and accepted the package. When law enforcement officers searched his apartment a short time later, they found the opened photo set under the cushion of a living room chair. They found the video in the kitchen in Sherman's oven, along with a copy he had already made in the short time he possessed the materials. They also recovered a number of videotapes containing images of nude, underage males. This time, Sherman was arrested and this latest conduct resulted in Count Three of the indictment, charging him with knowingly receiving child pornography that had been mailed, shipped and transported in interstate or foreign commerce, in violation of 18 U.S.C. sec. 2252A(a)(2)(A).

Sherman pled guilty to Count Three, and stipulated to the conduct charged in Counts One and Two. The probation officer preparing the Presentence Investigation Report (the "PSR") wrote that, because Sherman's criminal conduct "consists of separate harms and separate victims, [the counts] cannot be grouped together under any of the subsections contained in sec. 3D1.2, for the purpose of guideline calculation." PSR at 8. Sherman objected to this finding and argued in the district court that all three counts of the indictment involved the same victim under sec. 3D1.2. According to Sherman, the definition of "victim" provided in that section does not include secondary or indirect victims, and Sherman maintained that for the crimes of shipping, possessing and receiving child pornography, the main victim is society rather than the children involved in the production of the materials. Sherman conceded that for the crime of producing these materials, the children exploited in the production are the primary victims, but that he was merely a passive viewer who caused no additional harm to the children involved. The district court rejected that argument, refused to group the counts for sentencing purposes, and ordered Sherman imprisoned for 30 months. Sherman appeals.

II.

United States Sentencing Guideline sec. 3D1.2 provides, in relevant part:

All counts involving substantially the same harm shall be grouped together into a single Group. Counts involve substantially the same harm within the meaning of this rule:

. . . .

(b) When counts involve the same victim and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan.

Application Note 2 of the Commentary to Guideline sec. 3D1.2 provides:

The term "victim" is not intended to include indirect or secondary victims. Generally, there will be one person who is directly and most seriously affected by the offense and is therefore identifiable as the victim. For offenses in which there are no identifiable victims (e.g., drug or immigration offenses, where society at large is the victim), the "victim" for purposes of subsections (a) and (b) is the societal interest that is harmed. In such cases, the counts are grouped together when the societal interests that are harmed are closely related. . . . Ambiguities should be resolved in accordance with the purpose of this section as stated in the lead paragraph, i.e., to identify and group "counts involving substantially the same harm."

In this case of first impression in the Seventh Circuit, we must decide who is the primary or direct victim of the crimes of shipping, possessing and receiving child pornography. A number of circuits have weighed in on the issue and there is a split in the result. The split heavily favors the government's position that the children portrayed in the material are the primary victims of these crimes. Only one circuit has decided that society is the primary victim in these circumstances. We will review the cases from our sister circuits before turning to Sherman's arguments and the government's response.

A.

The Fourth Circuit was the first to consider who is the primary or direct victim of the crime of transporting child pornography in interstate commerce. United States v. Toler, 901 F.2d 399 (4th Cir. 1990). In addition to a single sec. 2252A count of transporting child pornography in interstate commerce, Toler was charged with two counts of interstate transportation of a minor with intent to engage in prohibited sexual conduct, in violation of 18 U.S.C. sec. 2423. The child depicted in the pornography was Toler's 12-year-old stepdaughter, and she was the same child Toler transported across state lines with intent to engage in prohibited sexual conduct. 901 F.2d at 400. The district court declined Toler's invitation to group the three offenses for sentencing purposes under sec. 3D1.2, and the Fourth Circuit affirmed. Id. The appellate court found that the primary interest sought to be protected in a sec. 2423 offense, transporting a minor across state lines with the intent to engage in prohibited sexual conduct, is that of the individual minor. The victim of that offense was therefore Toler's stepdaughter. 901 F.2d at 403. In contrast, the court found that the primary interest Congress sought to protect in sec. 2252A was the moral fabric of society at large. Id. The court found that the minor depicted in the pornography was a secondary victim of the crime. The court based this conclusion on the legislative history of sec. 2252A, which states, in part, that "the use of children as prostitutes or as the subjects...