U.S. v. U.S. Dist. Court For Cent. Dist. of California, Los Angeles, Cal.

• Decision Date: 29 September 1988
• Docket Number: No. 88-7053,88-7053
• Citation: 858 F.2d 534
• Parties: UNITED STATES of America, Petitioner, v. UNITED STATES DISTRICT COURT FOR the CENTRAL DISTRICT OF CALIFORNIA, LOS ANGELES, CALIFORNIA, Respondent. Ronald Renee Kantor, Rupert Sebastian McNee and James Marvin Souter, Jr., Real Parties in Interest.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 534

858 F.2d 534

99 A.L.R.Fed. 619

UNITED STATES of America, Petitioner, v. UNITED STATES DISTRICT COURT FOR the CENTRAL DISTRICT OF CALIFORNIA, LOS ANGELES, CALIFORNIA, Respondent Ronald Renee Kantor, Rupert Sebastian McNee and James Marvin Souter, Jr., Real Parties in Interest.

No. 88-7053.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 13, 1988.

Decided Sept. 29, 1988.

Ronni B. MacLaren, Asst. U.S. Atty., Criminal Div., Los Angeles, Cal., and Janis Kockritz, U.S. Dept. of Justice, Washington, D.C., for petitioner.

John H. Weston, Cathy E. Crosson, Brown, Weston & Sarno, Beverly Hills, Cal., for real parties in interest.

Richard Green, ACLU Foundation of Southern California, Los Angeles, Cal., for American Civil Liberties Union of Southern California as amicus curiae.

Petition for Writ of Mandamus to the United States District Court for the Northern District of California.

Before CANBY, BEEZER and KOZINSKI, Circuit Judges.

KOZINSKI, Circuit Judge:

Defendants are charged with violating 18 U.S.C. Sec. 2251(a) (Supp. IV 1986), which prohibits the production of materials depicting a minor engaged in sexually explicit conduct. We consider whether they may present evidence that they reasonably believed the minor in question was an adult.

Facts

The basic facts are uncontested. In 1984, defendant James Marvin Souter, Jr., a so-called talent agent, hired 16-year-old Traci Lords to appear in a film to be produced by defendants Ronald Renee Kantor and Rupert Sebastian McNee. The film, Those Young Girls, was produced on August 2, 1984, and showed Lords engaging in sexually explicit conduct. While the depicted conduct, as described in the briefs, falls far outside the bounds of good taste, the government does not claim that the film is obscene under the standard of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Rather, the theory of the prosecution, founded on solid Supreme Court authority, is that defendants may be punished for producing nonobscene films that depict minors engaging in sexually explicit conduct. See New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982).

Defendants do not dispute the government's theory, nor do they suggest that Lords was in fact an adult. They protest only that they were seriously misled. According to their counsel, Lords and her agent perpetrated a massive fraud on what is euphemistically called the adult entertainment industry; purveyors of smut from coast to coast were taken in by an artful, studied and well-documented charade whereby Lords successfully passed herself off as an adult. Defendants proposed to introduce evidence of the charade at trial.

The government moved in limine to bar defendants from presenting this evidence. Because knowledge of the minor's age is not an element of the offense as defined by section 2251(a), the government argued, good-faith mistake could not be a defense. Defendants in turn moved to dismiss the indictment for failure to specify knowledge of the minor's age as an element, arguing that the statute would violate the first amendment and due process if the government were not required to prove scienter as part of its prima facie case.

The district court denied both motions. It concluded that neither the statute, nor due process, nor the first amendment requires the government to prove that defendants knew their subject was a minor. United States v. Kantor, 677 F.Supp. 1421, 1426-29 (C.D.Cal.1987). Nevertheless, the court noted that strict liability for criminal offenses appears to be justified only "(1) where the legislature grants the privilege to engage in the activity; (2) where the deterrent effect of a severe penalty is necessary to prevent harm to the public interest; and (3) where basic notions of fairness are not upset by criminal conviction." Id. at 1433. Finding that the first condition did not apply and the other two cut in favor of permitting a reasonable mistake of age defense, the district court ruled that defendants would be allowed to present their evidence.

The government has petitioned for a writ of mandamus; defendants Kantor and McNee, whose trial has been stayed by the district court pending our disposition of the government's petition, have entered an opposition arguing that the statute should be interpreted to require the government to prove scienter as to age in its prima facie case or, at least, to permit defendants to prove reasonable mistake of fact as an affirmative defense. ¹ Because the case presents a novel and difficult issue of substantial significance, we set the case for oral argument.

Discussion

I

The government asks us to issue a writ of mandamus vacating the district court's order allowing admission of evidence as to defendants' mistake of fact. See All Writs Act, 28 U.S.C. Sec. 1651 (1982). Mandamus is extraordinary relief; we do not issue it lightly. See Kerr v. United States District Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 2123, 48 L.Ed.2d 725 (1976). We have identified five factors to guide our exercise of the mandamus power:

(1) The party seeking the writ has no other adequate means, such as a direct appeal, to attain the relief he or she desires. (2) The petitioner will be damaged or prejudiced in a way not correctable on appeal.... (3) The district court's order is clearly erroneous as a matter of law. (4) The district court's order is an oft-repeated error, or manifests a persistent disregard of the federal rules. (5) The district court's order raises new and important problems, or issues of law of first impression.

Bauman v. United States District Court, 557 F.2d 650, 654-55 (9th Cir.1977) (citations omitted); see also Armster v. United States District Court, 806 F.2d 1347, 1352 (9th Cir.1986). Mandamus is appropriate even though the five factors do not all point in the same direction; indeed, only rarely will both of the last two factors be present. United States v. Harper, 729 F.2d 1216, 1222 (9th Cir.1984).

The government's claim that the district court has permitted an inappropriate criminal defense presents a paradigmatic case for mandamus. An order allowing admission of evidence is not subject to interlocutory appeal under 18 U.S.C. Sec. 3731 (Supp. IV 1986). United States v. Booth, 669 F.2d 1231, 1240 (9th Cir.1981). Moreover, it is unlikely that an error will be correctable by any other means: If defendants are acquitted, the government will be barred by the double jeopardy clause from raising the issue by way of appeal. See Sanabria v. United States, 437 U.S. 54, 68-69, 98 S.Ct. 2170, 2180-81, 57 L.Ed.2d 43 (1978). The issue would, of course, be equally unreviewable in case of conviction because the government would not have been prejudiced by the claimed error. See United States v. United States District Court (De Lorean), 717 F.2d 478, 481 (9th Cir.1983) (issuing mandamus to correct error "capable of repetition but without opportunity for review").

In addition, the district court's order clearly raises a new and important issue of first impression. " ' "[A]dvisory" mandamus ... may issue to clarify novel and important questions of law ... [that are] likely to confront a number of lower court judges in a number of suits before appellate review is possible.' " Armster, 806 F.2d at 1352 (quoting National Right to Work Legal Defense & Educ. Found., Inc. v. Richey, 510 F.2d 1239, 1243 (D.C.Cir.), cert. denied, 422 U.S. 1008, 95 S.Ct. 2631, 45 L.Ed.2d 671 (1975)); see also In re EEOC, 709 F.2d 392, 395 (5th Cir.1983) (approving use of mandamus "as a one-time-only device to 'settle new and important problems' that might have otherwise evaded expeditious review") (quoting Schlagenhauf v. Holder, 379 U.S. 104, 111, 85 S.Ct. 234, 238, 13 L.Ed.2d 152 (1964)); EEOC v. K-Mart Corp., 694 F.2d 1055, 1061 (6th Cir.1982). Mandamus is an appropriate vehicle for settling the law in this case before trial and thereby avoiding uncertainty in this or any other prosecution under section 2251(a).

II

Our initial inquiry is whether scienter as to age is an element of the offense that the government must establish as part of its prima facie case. As always, we begin with the language of the statute:

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 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.

18 U.S.C. Sec. 2251(a) (Supp. IV 1986). The statute sets the age of majority at 18. 18 U.S.C. Sec. 2256(1) (Supp. IV 1986). On its face, section 2251(a) requires only that a defendant arrange for a minor to engage in sexually explicit conduct for the purpose of creating a visual depiction, and that there be a nexus to interstate commerce.

The defendant's awareness of the subject's minority is not an element of the offense. This omission was quite clearly deliberate. Both Houses of Congress originally considered bills making it unlawful for any person "knowingly" to employ, entice or coerce a minor to engage in sexually explicit conduct for the purpose of producing or promoting a film or other print or visual medium. Department of Justice representatives urged deletion of "knowingly" so as to avoid the inference that producers could be prosecuted only if they knew the minor's age. Assistant Attorney General Patricia M. Wald stated as follows in a letter to the Senate Judiciary Committee:

Unless "knowingly" is deleted here, the bill might be subject to an interpretation requiring the Government to prove the defendant's knowledge of everything that follows "knowingly", including the age of...