U.S. v. Smith

• Citation: 795 F.2d 841
• Decision Date: 29 July 1986
• Docket Number: No. 85-1216,85-1216
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James E. SMITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 841

795 F.2d 841

UNITED STATES of America, Plaintiff-Appellee, v. James E. SMITH, Defendant-Appellant.

No. 85-1216.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 11, 1986.

Decided July 29, 1986.

R. Michael Burke, Honolulu, Hawaii, for plaintiff-appellee.

H. Dean Steward, Asst. Federal Public Defender, Honolulu, Hawaii, for defendant-appellant.

Appeal from the United States District Court for the District of Hawaii.

OPINION

Before CHOY, ALARCON, and WIGGINS, Circuit Judges.

WIGGINS, Circuit Judge:

Appellant James E. Smith (Smith) appeals from a judgment entered on a jury verdict finding him guilty of six counts of violating the federal child pornography statutes, 18 U.S.C. Secs. 2251, 2252 (1984 Supp.), ¹ and one count of being a felon in possession of a firearm in violation of 18 U.S.C.App. Sec. 1202(a)(1982). We affirm.

FACTS

In 1984, Smith took photographs of three teenage girls in various stages of nudity, for the purpose, he asserts, of starting a catalog of lingerie and beauty products for teenage girls. Smith claims the photographs were not to be shown to anyone but himself and the girls themselves, and the government introduced no evidence at trial to contradict this assertion.

Smith mailed the undeveloped, unprocessed film to a photo company in Maryland through a standard "film mailer." The company services only private (as opposed to commercial) photographers. After developing the film, the company contacted U.S. postal inspectors. The postal inspectors examined the photographs, consulted a pediatrician, interviewed Smith and two of the children in the photographs, and then filed an affidavit for a warrant to search Smith's residence. A magistrate issued the warrant, and the ensuing search uncovered, among other things, a .357 Magnum revolver in a suitcase in a rear hall closet.

Smith was charged with three counts of inducing or coercing a minor to engage in sexually explicit conduct (specifically sadistic and masochistic abuse) for the purpose of producing visual depictions of such conduct (18 U.S.C. Sec. 2251(a) (1984 Supp.)), three counts of mailing such visual depictions (18 U.S.C. Sec. 2252(a) (1984 Supp.)), and one count of being a felon in possession of a firearm (18 U.S.C.App. Sec. 1202(a) (1982)). A jury convicted Smith on all counts. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291.

DISCUSSION

I. The Child Pornography Counts

A. "Distribution" Requirement

Smith contends that there was insufficient evidence to allow a reasonable jury to conclude that he intended to distribute the pictures to others, rather than merely use them himself. The government does not dispute this, but argues that proof of intent to distribute is unnecessary under sections 2251 and 2252. ² Therefore, although Smith frames his argument in terms of sufficiency of evidence, the real issue turns on interpretation of the statutes, which is a question of law reviewable de novo. See United States v. Wilson, 720 F.2d 608, 609 n. 2 (9th Cir.1983), cert. denied, 465 U.S. 1034, 104 S.Ct. 1304, 79 L.Ed.2d 703 (1984).

The language of sections 2251 and 2252 is clear and unambiguous. The plain language of the sections simply makes illegal the inducement of children into sexual conduct for the purpose of creating visual depictions of that conduct (section 2251) and the mailing of such visual depictions (section 2252). Neither section requires that the defendant's ultimate goal be distribution of the visual depiction.

Earlier versions of sections 2251 and 2252 both required that the prohibited visual depictions be "for the purpose of sale or distribution for sale," see 18 U.S.C. Secs. 2251, 2252 (1982) (amended), but the 1984 amendments eliminated that language, as Smith concedes. Smith nevertheless argues that the 1984 amendments were intended only to close a potential loophole for distributors who exchanged, lent, or gave away material, rather than selling it. It was not intended, Smith argues, to eliminate the distinction between distributors and mere producers for personal use. He urges us to consider a number of passages in the legislative history that strongly suggest the amendment was designed to allow prosecution of noncommercial distributors.

Although we are not absolutely forbidden to look at the legislative history in construing a statute that is plain on its face, see Tulalip Tribes of Washington v. F.E.R.C., 732 F.2d 1451, 1454 (9th Cir.1984), we must take such a step cautiously. Rivera v. Becerra, 714 F.2d 887, 893 (9th Cir.1983), cert. denied, 465 U.S. 1099, 104 S.Ct. 1591, 80 L.Ed.2d 124 (1984). As we have noted on more than one occasion,

[I]f evidence drawn from the face of the statute militates strongly for one interpretation, but not quite so strongly that the legislative history may safely be ignored, the legislative history should be considered, but considered cautiously. Under these circumstances a second interpretation should be accepted on the basis of the legislative history only if the evidence is very strong, which will usually require explicit language.

Heppner v. Alyeksa Pipeline Service Co., 665 F.2d 868, 873 (9th Cir.1981); Tulalip Tribes, 732 F.2d at 1454 (quoting Heppner).

The legislative history in the present case does not outweigh the plain language of the statute. Although the committee reports and the floor debate strongly suggest that Congress deleted the language "for the purpose of sale or distribution for sale" to eliminate the existing loophole for the nonprofit distributor, see, e.g., H. Rep. No. 536, 98th Cong., 2d Sess., reprinted in 1984 U.S.Code Cong. & Ad.News 492, the available materials do not explicitly demonstrate that Congress intended to exempt nondistributing producers and users from the scope of the amended statute. The legislators simply seem not to have considered such producers and users at all.

This possible lack of consideration falls short of overcoming the plain language of the statute. In the absence of a clear indication that Congress did not mean what it said, we must abide by the terms of the statute as written, which cover Smith's behavior. Smith's assertion that the government must prove that he intended to distribute the visual depictions therefore fails.

B. "Visual Depiction"

Smith also argues that unprocessed, undeveloped film does not constitute a "visual depiction" within the terms of the statute. He argues that substantial, complicated, and costly developing must be done before any visually perceptible image is created, and that as a result his mailing of the unprocessed film did not violate the child pornography statute.

As a preliminary matter, we note that even if Smith's argument is correct, the lack of an accomplished "visual depiction" would affect only Smith's convictions under section 2252(a) (actual transportation of visual depictions). Section 2251(a) does not require the actual production of a visual depiction, merely the enticement of minors "for the purpose of producing" a visual depiction of sexually explicit conduct. Whether the film involved here had actually reached the point of "visual depiction" or not, Smith's use of the girls was clearly "for the purpose of producing" such visual depictions. That Smith took the pictures and mailed the undeveloped film for processing and printing is sufficient proof of that purpose to allow a jury to find a violation of section 2251(a).

Turning to the merits of Smith's argument, we note that "visual depiction" is not defined in the statute. ³ Smith relies on common sense and dictionary definitions for his assertion that unprocessed film is not covered. He correctly notes that color film must undergo an elaborate developing process before any image can be perceived by the human eye.

Nevertheless, we conclude that the exclusion of unprocessed film from the statute's coverage would impede the child pornography laws by protecting a necessary intermediate step in the sexual exploitation of children. The interpretation urged by Smith would allow unrestricted interstate commerce in child pornography so long as the pornography was still in the form of undeveloped film. Such a loophole is inconsistent with congressional intent; the undeveloped state of the film does not eliminate the harm to the child victims in the film's production or the incentive to produce created by the film's trafficking. We therefore hold that undeveloped film constitutes a "visual depiction" as that term is used in 18 U.S.C. Sec. 2252(a). ⁴

II. The Search Warrant

At trial, Smith moved to suppress evidence seized at his apartment pursuant to the search warrant on the ground that the postal inspector's affidavit was insufficient to support the issuance of the warrant. The district court denied his motion. We need only ensure "that the magistrate had a substantial basis for concluding that probable cause existed." United States v. Moreno, 758 F.2d 425, 427 (9th Cir.1985). The magistrate's decision cannot be reversed unless it is clearly erroneous. Id.

Smith argues that the affidavit was an inadequate basis for the warrant, relying primarily on the "anonymous" and "conclusory" allegation that the photos depict "explicit sexual conduct" and the fact that the issuing magistrate never saw the photos. ⁵ We are troubled by the fact that the government did not present and the magistrate did not see the photos in question before the warrant issued. Obviously, presentation of the photos with the affidavit would have been the ideal course, and the record contains no hint of why this was not done. Nevertheless, we do not find this omission fatal to the warrant in light of the affidavit taken as a whole.

We turn first to the alleged "anonymity" of the affidavit's assertion that the photos depicted "explicit sexual conduct." Although the affidavit is literally susceptible of the construction Smith urges (that the photo company alone asserted that the photos depicted sexually explicit co...