United States v. Reedy, CR-85-224-W.

• Decision Date: 16 April 1986
• Docket Number: No. CR-85-224-W.,CR-85-224-W.
• Citation: 632 F. Supp. 1415
• Parties: UNITED STATES of America, Plaintiff, v. Calvin Dean REEDY, Defendant.
• Court: U.S. District Court — Western District of Oklahoma

632 F. Supp. 1415

UNITED STATES of America, Plaintiff, v. Calvin Dean REEDY, Defendant.

No. CR-85-224-W.

United States District Court, W.D. Oklahoma.

April 16, 1986.

William S. Price, U.S. Atty., Arelene J. Joplin, Asst. U.S. Atty., Oklahoma City, Okl., for plaintiff.

Stephen Jones, Enid, Okl., for defendant.

AMENDED ORDER

LEE R. WEST, District Judge.

Calvin Dean Reedy (Reedy) states in his briefs that Reedy photographed his daughter and her girl friend in the nude for the educational purpose of informing the girl friend's mother that her daughter was inclined to expose herself and had in fact exposed herself to others in the neighborhood. See Freeman v. Com., 223 Va. 301, 288 S.E.2d 461, 463 (1982) (similar defense raised by defendant indicted with violation of similar state law). These photographs are the basis for Reedy's indictment, which charges him with two (2) counts of sexual exploitation of children in violation of 18 U.S.C.A. § 2251(a) (West Supp. 1984-1985) (Section 2251(a)). Reedy has moved to dismiss this indictment because he contends Section 2251(a)¹, as defined by Section 2255², is void for vagueness and First Amendment overbreadth. This Court finds that Section 2251(a), as defined by Section 2255, is not substantially overbroad nor unconstitutionally vague.

Background

Statutes, such as Section 2251(a), which prohibit visual depictions of minors engaging in sexually explicit conduct, are premised upon the prevention of harm to minors visually depicted. The emphasis is upon prohibiting child abuse as opposed to censoring obscenity. Such statutes are supplemental to other statutes readily applicable to activities associated with child pornography such as rape, incest, sodomy, child abuse and neglect, contributing to the delinquency of a minor, indecent exposure and obscenity. These other statutes are somewhat limited because some impose liability upon parents and guardians only, have relatively weak penalty provisions, outlaw physical abuse only, and are not only difficult to prosecute, but also low on the priority status of prosecutions in general.³ In comparison the Child Protection Act of 1984, 18 U.S.C.A. §§ 2251-2255 (West 1984) (the federal child pornography law), regulates interstate child pornography activities, imposes liability upon coercers, producers, distributors, parents and guardians and provides for a fine of not more than $100,000.00 for an individual's first offense, not more than $250,000.00 for an organization and/or imprisonment for not more than ten years for a first offense and forfeiture of any property or proceeds obtained, used or produced.

The federal child pornography law has been in effect since February of 1978 and was amended in 1984 by Congress relying upon the following findings:

(1) Child pornography has developed into a highly organized, multi-million-dollar industry which operates on a nationwide scale;

(2) thousands of children including large numbers of runaway and homeless youth are exploited in the production and distribution of pornographic materials; and

(3) the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the individual child and to society.

S.R.Rep. No. 438, 95th Cong., 2nd Sess. (1978), reprinted in 1978 U.S.Code Cong. & Ad.News 40, 41-54. Section 2251(a) is generally directed towards four groups: (1) coercers; (2) producers; (3) parents; and, (4) distributors. Coercers may be limited to those persons who locate minors and entice them for the purpose of producing the visual material. A coercer may also be a producer, one who photographs or directly uses minors for the purpose of producing the visual material. A distributor may be a seller of such material or one who otherwise trades in passing such material to another. A parent can be anyone of these.

The prima facie case under Section 2251(a) requires the prosecution to prove beyond a reasonable doubt:

(a) a person employed, used, persuaded, induced, enticed or coerced

(b) a minor

(c) to engage in or to assist another person to engage in

(d) sexually explicit conduct

(e) for the purpose of producing a visual depiction of such conduct

(f) the person knew or had reason to know the visual depiction would be transported in interstate or foreign commerce or mailed

(g) or such visual depiction was transported in interstate or foreign commerce or mailed.

A "minor" is defined by Section 2255(1) as any person under the age of eighteen years of age. "Sexually explicit conduct" is defined by Section 2255(2) as actual or simulated (A) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; (B) bestiality; (C) masturbation; (D) sadistic or masochistic; abuse; or (E) lascivious exhibition of the genitals or pubic area of any person.

Constitutional Issues

Reedy challenges the constitutionality of Section 2251(a), as defined by Section 2255, upon the grounds of vagueness and overbreadth. The concept that a statute is facially vague, and thus void, rests upon Fifth Amendment procedural due process, which requires adequate notice of prohibited conduct and standards of adjudication. Overbreadth, on the other hand, rests upon Fifth Amendment substantive due process, which forbids prohibition of certain constitutionally guaranteed freedoms. In response to a facial challenge⁴ to a law upon the grounds of overbreadth and vagueness, "a court's first task is to determine whether the law reaches a substantial amount of constitutional conduct."⁵Hoffman Estates v. Flipside, 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362, reh. den. 456 U.S. 950, 102 S.Ct. 2023, 72 L.Ed.2d 476 (1982), on remand 688 F.2d 842 (7th Cir. 1982) (emphasis supplied).

Overbreadth

In order to demonstrate substantial overbreadth Reedy may present every allegedly overbroad application of Section 2251(a) for this Court's consideration. He is not limited to proving overbreadth upon the particular facts surrounding his indictment. Although a person is normally limited to proving his contentions based upon the facts at issue, one is not so limited upon a claim of First Amendment overbreadth for two reasons (1) the sensitive nature of protected expression and (2) the need to consider whether persons, whose expression is constitutionally protected, may well refrain from exercising their rights for fear of criminal sanctions⁶. See generally New York v. Ferber, 458 U.S. 747, 768, 102 S.Ct. 3348, 3360, 73 L.Ed.2d 1113, on remand 57 N.Y.2d 256, 455 N.Y.2d 582, 441 N.E.2d 1100 (1982) (citing Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 634, 100 S.Ct. 826, 834, 63 L.Ed.2d 73, reh. den. 445 U.S. 972, 100 S.Ct. 1668, 64 L.Ed.2d 250 (1980); Gooding v. Wilson, 405 U.S. 518, 521, 92 S.Ct. 1103, 1105, 31 L.Ed.2d 408 (1972) (similar argument made)).

This Court's analysis of the overbreadth issue sub judice tracks that of the United States Supreme Court in New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). In Ferber the question presented to the Supreme Court was

"To prevent the abuse of children who are made to engage in sexual conduct for commercial purposes, could the New York State Legislature, consistent with the First Amendment, prohibit the dissemination of material which shows children engaged in sexual conduct, regardless of whether such material is obscene?"

Id. at 753, 102 S.Ct. at 3352. The question presented in Ferber makes it clear that the analysis in Ferber was applied to prohibitions against dissemination of visual depictions of minors engaging in or assisting in sexually explicit conduct. Regulations governing activities of distributors of child pornography may be viewed with greater constitutional scrutiny than those regulating activities of coercers and producers, because the latter are considered to regulate primarily conduct and only incidentally speech. People v. Folk, 109 Misc.2d 738, 440 N.Y.S.2d 984 (1981); Payne v. Com, 623 S.W.2d 867, 871-72 (Ky.1981), cert. den. 456 U.S. 909, 102 S.Ct. 1758, 72 L.Ed.2d 167 (1982); see also United States v. O'Brien, 391 U.S. 367, 376-77, 88 S.Ct. 1673, 1678-79, 20 L.Ed.2d 672 (1968) (discusses concept limitless variety of conduct cannot be labeled "speech"). Nevertheless, the Ferber analysis is instructive to this Court with regard to the issues presented by Reedy.

The Ferber "case arose when Paul Ferber, the proprietor of a Manhattan bookstore specializing in sexually oriented products, sold two films to an undercover police officer." Id. 458 U.S. at 751-52, 102 S.Ct. at 3351-52. The films consisted almost exclusively of depictions of young boys masturbating. Id. at 753, 102 S.Ct. at 3352. Ferber was indicted on two counts of violating N.Y. Penal Law § 263.10, which prohibits dissemination of obscene material, and two counts of violating N.Y. Penal Law § 263.15 (Section 263.15)⁷, the New York law controlling dissemination of child pornography that does not require proof of obscenity. Reversing the New York Court of Appeals decision,⁸ which held Section 263.15 violated the First Amendment, the United States Supreme Court held Section 263.15, does not violate the First Amendment as applied to the states through the Fourteenth Amendment because (a) states are entitled to greater leeway in regulation of pornographic depictions of children; (b) Section 263.15 describes a category of material that is unprotected; and, (c) the overbreadth of Section 263.15 is not substantial and "whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly may not be applied." Ferber, 458 U.S. at 773-74, 102 S.Ct. at 3363-64 (citing Broadrick, 413 U.S. at 615-16, 93 S.Ct. at 2917-18). For similar reasons, Section 2251(a) is not overbroad.

The Supreme Court identified the following five reasons for holding states are...