U.S. v. Thomas, 88-5325

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation893 F.2d 1066
Docket NumberNo. 88-5325,88-5325
Parties29 Fed. R. Evid. Serv. 697 UNITED STATES of America, Plaintiff-Appellee, v. Charles James THOMAS, Defendant-Appellant.
Decision Date10 January 1990

Ezekiel E. Cortez, Aaron & Cortez, San Diego, Cal., for defendant-appellant.

Bruce R. Castetter and Joan P. Weber, Asst. U.S. Attys., San Diego, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before HUG, HALL and WIGGINS, Circuit Judges.

WIGGINS, Circuit Judge:

Charles James Thomas appeals his conviction in a jury trial for three counts of violating the federal child pornography statutes, 18 U.S.C. Secs. 2251-2252 (Supp. V 1987). 1 We have jurisdiction under 28 U.S.C. Sec. 1291 (1982). We affirm.

BACKGROUND

From the evidence presented at trial, the jury could properly have found the following facts: In December 1986, Clark Color Laboratories (Clark), a mail order photo developing company in Maryland, received several rolls of film for developing in an envelope bearing a San Ysidro, California post office box return address. When Clark developed and printed these rolls, it found them to contain images of a girl approximately thirteen years old, engaged in sex acts with an adult male. Clark turned the negatives and prints over to the Postal Service, which conducted a controlled delivery to the San Ysidro post office. Postal inspectors arrested Thomas when he picked up the film. The inspectors subsequently found evidence linking Thomas to having shot and mailed, as well The jury convicted Thomas of engaging a minor in sexually explicit conduct for the purpose of creating a visual depiction of that conduct in violation of section 2251(a), transporting or mailing obscene material in violation of section 2252(a)(1), and receiving obscene material in violation of section 2252(a)(2).

as to having received the film. Thomas was readily identifiable as the adult male in the pictures on whom the young girl was performing sex acts; pictures of Thomas' wife were interspersed with the pictures of the young girl and Thomas; Thomas possessed a blanket that appeared in some of the pictures; and the post office box to which the film was sent was registered to Thomas.

I. Extraterritorial Application of Section 2251(a)

Thomas contends that the prosecution's failure to introduce any evidence at trial that Thomas shot the pictures of himself and the young girl in the United States requires reversal of his conviction for violating section 2251(a). Thomas argues that if he committed these acts, he did so in Mexico and section 2251(a) does not apply to extraterritorial acts. We review this question of law de novo. United States v. Endicott, 803 F.2d 506, 514 (9th Cir.1986).

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, or who transports any minor in interstate or foreign commerce, or in any Territory or Possession of the United States, with the intent that such minor engage in any sexually explicit conduct for the purpose of producing any visual depiction of such conduct, shall be punished as provided under subsection (d), if such person knows or has reason to know that such visual depiction will be transported in interstate or foreign commerce or mailed, or if such visual depiction has actually been transported in interstate or foreign commerce or mailed.

The commerce clause grants Congress the power to enact this penal statute. Congress may apply its penal statutes to extra-territorial acts unless such application would violate due process. United States v. Pinto-Mejia, 720 F.2d 248, 259 (2d Cir.1983), modified on other grounds, 728 F.2d 142 (2d Cir.1984); Leasco Data Processing Equipment Corp. v. Maxwell, 468 F.2d 1326, 1334 (2d Cir.1972). Thomas does not contend that application of section 2251(a) to him denies him due process and there is no indication that it does. Whether 18 U.S.C. Sec. 2251(a) applies to Thomas' extraterritorial acts is, therefore, a question of statutory interpretation. See Blackmer v. United States, 284 U.S. 421, 437, 52 S.Ct. 252, 254, 76 L.Ed. 375 (1932).

Section 2251(a) does not explicitly state that it applies to conduct outside the United States. Cf., e.g., 21 U.S.C. Sec. 959 (1982) (statute banning manufacture and distribution of controlled substances by its terms "is intended to reach acts of manufacture or distribution committed outside the territorial jurisdiction of the United States"). But "[t]he exercise of [extraterritorial power] may be inferred from the nature of the offenses and Congress' other legislative efforts to eliminate the type of crime involved." United States v. Baker, 609 F.2d 134, 136 (5th Cir.1980). In Baker, the court construed 21 U.S.C. Sec. 841(a)(1) (1982), proscribing possession of controlled substances with intent to distribute. This statute does not explicitly state that it applies to extraterritorial conduct. The court held that it applies to possession outside the three mile limit of the United States' territorial waters if the defendant clearly intended to distribute the substances within the United States. The court noted that "[t]he power to control efforts to introduce illicit drugs into the United States from the high seas and foreign nations is a necessary incident to Congress' efforts to eradicate all illegal drug trafficking." Id. at 137.

Similarly in this case, Congress has created a comprehensive statutory scheme to eradicate sexual exploitation of children. See 18 U.S.C. Secs. 2241-2257. As part of that scheme, Congress has proscribed the Before concluding that section 2251(a) applies to Thomas' extraterritorial acts, however, we consider whether such application would violate international law. Although Congress is not bound by international law in enacting statutes, United States v. Aguilar, 883 F.2d 662, 679 (9th Cir.1989); Pinto-Mejia, 720 F.2d at 259; Leasco, 468 F.2d at 1334, out of respect for other nations, courts should not unnecessarily construe a congressional statute in a way that violates international law. See, e.g., Chua Han Mow v. United States, 730 F.2d 1308, 1311 (9th Cir.1984), cert. denied, 470 U.S. 1031, 105 S.Ct. 1403, 84 L.Ed.2d 790 (1985); United States v. Aluminum Co. of America, 148 F.2d 416, 443-44 (2d Cir.1945).

transportation, mailing, and receipt of child pornography. Punishing the creation of child pornography outside the United States that is actually, is intended to be, or may reasonably be expected to be transported in interstate or foreign commerce 2 is an important enforcement tool. We, therefore, believe it likely that under section 2251(a) Congress intended to reach extraterritorial acts that otherwise satisfy the statutory elements.

International law permits a country to apply its statutes to extraterritorial acts of its nationals. United States v. King, 552 F.2d 833, 851 (9th Cir.1976), cert. denied, 430 U.S. 966, 97 S.Ct. 1646, 52 L.Ed.2d 357 (1977); Restatement (Second) of Foreign Relations Law of the United States Sec. 30(1)(a). In this case counsel conceded at oral argument that Thomas is an American national. We, therefore, conclude that section 2251(a) applies to the acts on which Thomas' conviction for violating this section was based, whether or not Thomas committed those acts in the United States.

II. Sufficiency of the Indictment

Thomas claims that counts two and three of the indictment on which he was tried 3 are insufficient to support convictions for violations of sections 2252(a)(1) and 2252(a)(2) because these counts do not allege that he knew that the pornography he transported and received depicted a minor. Thomas also contends that count two of the indictment is insufficient because it failed to allege that he knowingly mailed the pornography. We review the sufficiency of an indictment de novo. See United States v. Normandeau, 800 F.2d 953, 958 (9th Cir.1986).

A. Knowledge of the Victim's Age in Counts Two and Three

The government was not required to allege that Thomas knew the victim was a minor. Section 2252(a) provides:

(a) Any person who--

(1) knowingly transports or ships in interstate or foreign commerce or mails, any visual depiction, if--

(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and

(B) such visual depiction is of such conduct; or

(2) knowingly receives, or distributes any visual depiction that has been transported or shipped in interstate or foreign commerce or mailed or knowingly reproduces any visual depiction for distribution in interstate or foreign commerce or through the mails, if--

(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and

(B) such visual depiction is of such conduct;

shall be punished as provided in subsection (b) of this section.

In subsection 1, "knowingly" modifies only "transports or ships." In subsection 2, "knowingly" modifies only "receives." The section, therefore, does not require that Thomas knew that the pornography he transported, mailed, and received involved a minor. The section requires only that Thomas knowingly transported and received the material. Cf. United States v. United States Dist. Court for the Central Dist. of Cal., 858 F.2d 534, 537-38 (9th Cir.1988) (section 2251(a)'s wording and legislative history make clear that it does not require knowledge of the child's age).

B. Knowledge of Mailing in Count Two

Count two of the indictment on which Thomas was tried does not charge that Thomas knowingly transported or mailed the pornography; the count charges only that Thomas transported and mailed the pornography. Thomas argues that because section 2252(a)(1) prohibits only the knowing shipment of child pornography, he could not properly be...

To continue reading

Request your trial
60 cases
  • United States v. Skinner
    • United States
    • U.S. District Court — Eastern District of Virginia
    • March 10, 2021
    ..., 569 F.3d 1291, 1307 (11th Cir. 2009) ; United States v. Harvey , 2 F.3d 1318, 1327–28 (3d Cir. 1993) ; United States v. Thomas , 893 F.2d 1066, 1068 (9th Cir. 1990).17 A district court in the Eastern District of New York has reached the same conclusion, applying § 2251(a) to extraterritor......
  • U.S. v. Christie
    • United States
    • U.S. District Court — District of New Jersey
    • August 13, 2008
    ...define such as `Section 2256(8).'" (Christie Supp. Br. at 6.)17 To support his argument, Mr. Christie points to United States v. Thomas, 893 F.2d 1066, 1069 n. 3 (9th Cir.1990), which involved an indictment that Mr. Christie apparently believes "spells out the precise criminal activity in a......
  • U.S. v. Kapordelis, No. 07-14499.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • June 1, 2009
    ...§§ 2241-2257, in which Congress has outlawed the transportation, mailing, and receipt of child pornography. See United States v. Thomas, 893 F.2d 1066, 1069 (9th Cir.1990). "Punishing the creation of child pornography outside the United States that is actually, is intended to be, or may rea......
  • U.S. v. Bredimus, CR.A. 302CR064L.
    • United States
    • U.S. District Court — Northern District of Texas
    • July 19, 2002
    ...the Act] `would be greatly to curtail the scope and usefulness of the statute.'" Id. (citations omitted). Similarly, in United States v. Thomas, 893 F.2d 1066 (9th Cir.), cert. denied, 498 U.S. 826, 111 S.Ct. 80, 112 L.Ed.2d 53 (1990), in addressing whether § 2251 applied to extraterritoria......
  • Request a trial to view additional results
1 books & journal articles
  • Barriers to the voluntary adoption of Internet tagging proposals.
    • United States
    • Harvard Journal of Law & Technology Vol. 21 No. 1, September 2007
    • September 22, 2007
    ...United States v. Bowman, 260 U.S. 94, 98 (1922). (63.) 260 U.S. 94 (1922). (64.) Id. (65.) 2 F.3d 1318, 1327-29 (3d Cir. 1993). (66.) 893 F.2d 1066, 1068-69 (9th Cir. (67.) For example, the Supreme Court has held that the First Amendment provides significantly less protection for child porn......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT