U.S. v. Wolf

• Decision Date: 22 November 1989
• Docket Number: No. 88-2701,88-2701
• Citation: 890 F.2d 241
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Joseph WOLF, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 241

890 F.2d 241

UNITED STATES of America, Plaintiff-Appellee, v. William Joseph WOLF, Defendant-Appellant.

No. 88-2701.

United States Court of Appeals, Tenth Circuit.

Nov. 22, 1989.

Teresa Black, Asst. U.S. Atty. (William S. Price, U.S. Atty., with her on the brief), Oklahoma City, Okl., for plaintiff-appellee.

Susan M. Otto, Asst. Federal Public Defender, Oklahoma City, Okl., for defendant-appellant.

Before McKAY, McWILLIAMS and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

On March 8, 1988, William Joseph Wolf (Wolf) was indicted on thirteen counts of sexual exploitation of a child in violation of 18 U.S.C. Sec. 2251 (Supp. V 1987). Counts one through twelve were based on photographs he took of a partially nude, apparently asleep or unconscious five-year-old girl. After taking the photographs, Wolf mailed the undeveloped film from Oklahoma to Pittsburg, Pennsylvania, for processing. In the trial court Wolf challenged the constitutionality of 18 U.S.C. Sec. 2251. After hearing evidence and argument of counsel, the trial court ruled the statute constitutional as applied. Pursuant to a plea agreement, Wolf pled guilty to count one of the indictment, reserving for appeal the issue of the constitutionality of 18 U.S.C. Sec. 2251. On appeal Wolf contends 18 U.S.C. Sec. 2251 is unconstitutional as applied to the photograph supporting count one. We hold 18 U.S.C. Sec. 2251 is not unconstitutional as applied to the photograph.

FACTS

On an evening in late December 1987, ¹ Wolf went Christmas shopping with some friends who brought along their five-year-old daughter. [R. at 55.] After shopping, the girl, her parents, and her brother returned with Wolf to his apartment. [R. at 55.] Wolf asked the parents of the girl if she could spend the night with him, and they consented. [R. at 55.]

In the early morning hours of the next day, Wolf photographed his five-year-old victim as she lay on his waterbed. When he mailed the undeveloped thirty-five millimeter film to an out-of-state company for processing, Wolf sent two five-dollar bills and hand-printed instructions: "Send to W.J.W., 2421 North Sterling, Apartment 112-W, Oklahoma City, Oklahoma." The photo processing company that developed the film in Maryland recognized that the nude female was a minor and contacted the FBI. A controlled delivery of the photos was attempted by a postal inspector in a mailman's uniform. He knocked at Wolf's apartment and asked for postage due. [R. at 52.] Believing the postman was a law enforcement officer, Wolf refused to accept the package. [R. at 57.] Subsequently, the FBI obtained and executed a search warrant of Wolf's apartment. Wolf admitted to an FBI agent that he had taken the photographs of the child and mailed them interstate. [R. at 55.]

"LASCIVIOUS EXHIBITION"

Wolf contends the trial court erred by finding the provisions of 18 U.S.C. Sec. 2251, as further defined by 18 U.S.C. Sec. 2256(2)(E) (Supp. V 1987), were constitutional as applied to the photograph charged in count one of the indictment. 18 U.S.C. Sec. 2251 reads in pertinent part:

Any person ... who employs, uses, persuades, induces, entices, or coerces any minor 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.

The term "sexually explicit conduct" is further defined in 18 U.S.C. Sec. 2256, which provides, in part: " '(2) sexually explicit conduct' means actual or simulated ... (E) lascivious exhibition of the genitals or pubic area of any person...." The trial court did not err in finding these provisions constitutional as applied to the photograph charged in count one.

The photograph at issue in this appeal shows the victim lying on her back. Her head is at the top of the photo, in the background of the field. Her eyes are closed, and her head is turned slightly to the right. Her mouth is open. Her left arm crosses her chest, and her right cheek rests on the back of her left hand. Her right arm extends away from her body, right palm up. She is wearing a pink and white sleep-shirt which is pulled up above her waist, exposing the lower half of her body, which is totally nude. Her left leg extends into the foreground and is cut off in the photograph just below the knee. The victim's right leg is raised up toward the ceiling, and to the right. The right knee is not bent substantially. Her right leg is supported by pillows or other bedding. Her legs are spread apart, exposing her genital region. The primary focus of light in the photograph is the victim's genitals; the victim's head and the other background is barely lit.

Wolf argues the photograph is not within the contemplation of the statute because the sleeping child is not exuding sexual suggestiveness. Therefore, he argues, the photograph is not a "lascivious exhibition of the genitals or the pubic area" under the statute.

[T]he photograph of the sleeping, partially nude child fails to depict lust, wantonness, sexual coyness or other inappropriate precocity. In the absence of such elements, the prohibitions codified by Sec. 2251(a), as defined in Sec. 2256(2)(E), extend beyond constitutional limits.

Appellant's Brief at 6, 12-13. Wolf misperceives the law.

Under various constitutional challenges, the term "lascivious exhibition" under the statute has been interpreted by the courts since the inception of the legislation forming the basis for the instant charge. ² In United States v. Freeman, 808 F.2d 1290, 1292 (8th Cir.), cert. denied, 480 U.S. 922, 107 S.Ct. 1384, 94 L.Ed.2d 697 (1987), the Eighth Circuit held the term "lascivious exhibition of the genitals" is not unconstitutionally vague. In so holding, the Eighth Circuit referred to the Supreme Court's decision in New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982), wherein the Court distinguished the focus of obscenity laws from that of the child pornography laws. "Whereas obscenity laws are designed to protect the unwilling recipients from offensive sexual depictions, see Miller v. California, 413 U.S. 15, 18-19, 93 S.Ct. 2607, 2611-12, 37 L.Ed.2d 419 (1973), child pornography laws also seek to protect innocent children from sexual exploitation and its potentially permanent psychological and physical effects." Freeman, 808 F.2d at 1292 (citation and footnote omitted).

That same year, the Ninth Circuit wrote United States v. Wiegand, 812 F.2d 1239 (9th Cir.), cert. denied, 484 U.S. 856, 108 S.Ct. 164, 98 L.Ed.2d 118 (1987), one of the most heavily cited cases on this issue. In Wiegand, the Ninth Circuit also held the statutory term "lascivious" was not unconstitutionally vague. Id. at 1243-44. Wiegand was indicted along with co-defendant Dost on alleged violations of 18 U.S.C. Sec. 2251(a) and other related charges. The stipulated facts reveal that both defendants took a series of photographs of two minor females. One of the girls was fourteen years old and the other was ten years old at the time of the offenses. The defendants photographed the fourteen-year-old at Dost's residence where he had the nude girl assume various supine and sitting poses. The ten-year-old was photographed nude and sitting on a beach. United States v. Dost, 636 F.Supp. 828, 830 (S.D.Cal.1986), aff'd sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir.), cert. denied, 484 U.S. 856, 108 S.Ct. 164, 98 L.Ed.2d 118 (1987), and aff'd, 813 F.2d 1231 (1987).

The Dost court found the photographs depicted "sexually explicit conduct" in that they contained a "lascivious exhibition of the genitals or pubic area" under subsection (E) of the statute. 636 F.Supp. at 833. The trial court reviewed some of the legislative history of the Child Protection Act ³ and concluded the purpose of the amendments to the Act was to broaden the scope of the existing "kiddie porn" laws to protect children from the harmful effects of sexual exploitation. Id. at 831. In finding the defendants guilty, the trial court listed what have come to be known as the Dost factors. These factors were enumerated "among any others that may be relevant in the particular case" in determining whether a visual depiction of a minor constitutes a "lascivious exhibition of the genitals or pubic area" under Sec. 2255(2)(E) (now codified at Sec. 2256(2)(E):

1) whether the focal point of the visual depiction is on the child's genitalia or pubic area;

2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;

3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;

4) whether the child is fully or partially clothed, or nude;

5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; ⁴

6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

Id. at 832.

In applying its factors, the trial court conceded the photo of the ten-year-old was not as graphic as that of the fourteen-year-old and also observed the girl's expression was not sexually coy, since she was squinting and looking away from the camera. The trial court described the photograph of the ten-year-old as follows:

The ... photograph of the 10-year-old child ... portrays the child sitting on the beach, looking off to her right. She is leaning back, supporting her weight on her arms, hands resting on the sand. She is totally nude, and has some body painting on her chest. Her pelvic area appears to be slightly raised or hyperextended, and her legs are spread apart. Her right leg is fully extended at a slight outward angle. Her left leg is bent at the knee and...