U.S. v. X-Citement Video, Inc., X-CITEMENT
Citation | 982 F.2d 1285 |
Decision Date | 16 December 1992 |
Docket Number | 89-50562,X-CITEMENT,Nos. 89-50556,s. 89-50556 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v.VIDEO, INC., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Rubin GOTTESMAN, Defendant-Appellant. |
Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Stanley Fleishman, Fleishman, Fisher & Moest, Los Angeles, CA, for defendants-appellants.
Nancy B. Spiegel, Asst. U.S. Atty., Los Angeles, CA, Janis Kockritz, U.S. Dept. of Justice, Washington, DC, for plaintiff-appellee.
Appeal from the United States District Court for the Central District of California.
Before CANBY, KOZINSKI and FERNANDEZ, Circuit Judges.
Defendant Rubin Gottesman appeals his conviction, after a bench trial, for violating the Protection of Children Against Sexual Exploitation Act of 1977 ("Act"), 18 U.S.C. § 2251 et seq. (1988). Gottesman was convicted of violating sections 2252(a)(1) and (a)(2) of the Act, which prohibit the distribution, receipt, or shipping of child pornography. Gottesman challenges the Act as unconstitutional, both on its face and as applied. We conclude that the Act is unconstitutional on its face and, therefore, reverse.
In 1986 and 1987, an undercover police officer contacted Gottesman, the operator of X-Citement Video, Inc., and expressed interest in buying pornographic videotapes featuring one Traci Lords. The officer stated that he wanted tapes that Lords had made when she was under the age of 18. Gottesman eventually sold two sets of such tapes: the first was a box of 49 tapes that he sold directly to the police officer; the second was a box of 8 tapes that Gottesman sold to the police officer and sent (per the police officer's instructions) to Hawaii.
A federal grand jury indicted Gottesman for distributing, shipping, and conspiring to distribute and ship child pornography in violation of 18 U.S.C. § 2252. After a bench trial, Gottesman was convicted on these counts; the district court sentenced him to 12 months incarceration and ordered him to pay a $100,000 fine.
After he had filed a notice of appeal to this court, Gottesman requested a remand to the district court for reconsideration in light of 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), which we granted. Gottesman then asserted before the district court, first, that Thomas had ruled that section 2252 lacked a requirement that a defendant know that he is distributing or shipping child pornography, and, second, that, as construed, section 2252 on its face violates the First and Fifth Amendments to the U.S. Constitution. The district court rejected these arguments and upheld the constitutionality of section 2252.
Gottesman asserts that section 2256 4 of the Act--its definitional section--is facially unconstitutional because it renders the Act applicable to depictions of those under the age of 18, whereas the statute upheld in New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982), set the age of majority at 16. See Ferber, 458 U.S. at 774, 102 S.Ct. at 3363 ( ). Gottesman argues that adding two years to the age of majority renders the Act unconstitutionally overbroad. He contends that it is far more difficult to determine when a person is under 18 than it is to determine when he or she is under 16. The result, according to Gottesman, is that distribution of sexually explicit material becomes such a hazardous profession that its practitioners will refuse to handle materials involving persons anywhere near the age of 18, thus restricting protected expression involving, for example, 23- or 25-year-olds.
Gottesman contends that section 2256 is overbroad and vague because Congress replaced "lewd" with "lascivious" in defining illegal exhibition of the genitals of children. See 18 U.S.C. § 2256(2)(E). In so arguing, he ignores 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), in which we rejected a similar argument, stating that " '[l]ascivious' is no different in its meaning than 'lewd,' a commonsensical term whose constitutionality was specifically upheld in Miller v. California [413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) ] and in Ferber." Wiegand, 812 F.2d at 1243 (citations omitted). We adhere to the view expressed in Wiegand.
Gottesman asserts that section 2256 is overbroad and vague because it includes among the covered acts, without further definition, actual or simulated bestiality and sadistic or masochistic abuse. 18 U.S.C. § 2256(2). This argument was essentially answered in Ferber, which upheld the constitutionality of a similar statute. The relevant section of the statute at issue in Ferber defined the prohibited sexual conduct as " 'actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals.' " 458 U.S. at 751, 102 S.Ct. at 3351.
Gottesman focuses on three differences between section 2256 and the statute in Ferber: First, he argues that section 2256's prohibition of "simulated" acts renders it overbroad and vague. The statute in Ferber also prohibited "simulated" acts, however, and the structure of the sentence suggests that "simulated" modified all the acts on the list. Thus, there is no meaningful distinction between section 2256 and the Ferber statute in this regard. Second, Gottesman focuses on section 2256(2)(D)'s alleged inclusion of "sadistic or masochistic; abuse." The semicolon before "abuse" is a typographical error in the unofficial code, however; the official version of section 2256(2)(D) states "sadistic or masochistic abuse." Compare 18 U.S.C. § 2256(2)(D) (1988) with 18 U.S.C.A. § 2256(2)(D) (West Supp.1992). The only difference between section 2256 and the Ferber statute, therefore, is the former's replacement of "sado-masochistic abuse" with "sadistic or masochistic abuse." The two terms are indistinguishable. The final difference that Gottesman cites is that the Ferber statute prohibited "sexual bestiality," Thus, we reject all of Gottesman's vagueness and overbreadth challenges to the Act.
whereas section 2256 refers only to "bestiality." Gottesman suggests that, under section 2256, "bestiality" could be read to encompass its entire dictionary definition, so that it would also prohibit, e.g., "the display, gratification, or an instance of bestial traits or impulses." Webster's International Dictionary (3rd ed. 1966). In context, however, such a reading would not be justified; "bestiality" is listed as a subcategory of "sexually explicit conduct." The term can hardly be interpreted to mean "acting beastly"; properly construed, the term is no different from Ferber's "sexual bestiality."
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