United States v. Streett

• Decision Date: 15 January 2020
• Docket Number: No. CR 14-3609 JB,CR 14-3609 JB
• Citation: 434 F.Supp.3d 1125
• Parties: UNITED STATES of America, Plaintiff, v. Bentley A. STREETT, Defendant.
• Court: U.S. District Court — District of New Mexico

434 F.Supp.3d 1125

UNITED STATES of America, Plaintiff,

v.Bentley A. STREETT, Defendant.

No. CR 14-3609 JB

United States District Court, D. New Mexico.

Filed January 15, 2020

John C. Anderson, United States Attorney, Sarah Jane Mease, Nicholas Jon Ganjei, Alexander Mamoru Max Uballez, Assistant United States Attorneys, United States Attorney's Office, Albuquerque, New Mexico, Attorneys for the Plaintiff.

Alexandra W. Jones, Jones Law Firm, LLC, Albuquerque, New Mexico --and-- Robert R. Cooper, Johnn S.L. Osborn, Robert Cooper Law Firm, Albuquerque, New Mexico --and-- Harry I. Zimmerman, Harry Ira Zimmerman Attorney at Law, Albuquerque, New Mexico --and-- Martin Lopez, III, Martin Lopez, III, P.C., Albuquerque, New Mexico, Attorneys for the Defendant.

MEMORANDUM OPINION ¹

James O. Browning, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on: (i) the Defendant's Motion to Dismiss Counts 3 Through 7 of Second Superseding Indictment, filed December 1, 2017 (Doc. 77)("Motion"); (ii) the Defendant Bentley Streett's Motion to Dismiss Proposed Findings of Fact and Conclusions of Law, filed November 1, 2018 (Doc. 167)("Streett's Proposed Findings"); and (iii) the United States' Proposed Findings of Fact and Conclusions of Law (September 10, 2018 Evidentiary Hearing), filed November 1, 2018 (Doc. 166)("United States' Proposed Findings"). The Court held a motion hearing on June 25, 2018, and an evidentiary hearing on September 10, 2018. The primary issues are: (i) whether Defendant Bentley A. Streett has standing to make a facial challenge to 18 U.S.C. § 2251(a), even though Streett does not allege that the statute is unconstitutional as applied to him; (ii) whether § 2251(a) applies to juveniles; (iii) whether teenage sexting that falls under § 2251(a)'s ambit is constitutionally protected speech under the First Amendment to the Constitution of the United States of America; and (iv) whether § 2251(a) is overbroad, and creates a realistic risk of chilling or infringing on protected speech. At the evidentiary hearing, the Court indicated its inclination to deny the Motion. The Court concludes that: (i) Streett has standing to make a facial challenge to § 2251(a) as unconstitutionally overbroad, because First Amendment jurisprudence grants defendants standing for overbreadth challenges even when the defendant does not allege that the statute is unconstitutional as applied to him or her; (ii) from the statute's plain language, § 2251(a) applies to juveniles; (iii) teenage sexting that falls within § 2251(a) is not protected speech, because it still constitutes criminal child abuse bringing it within the First Amendment's categorical exception for child pornography; and (iv) § 2251(a) is not unconstitutionally overbroad, because it does not create a realistic risk of chilling or infringing on protected speech. Accordingly, the Court denies the Motion.

FACTUAL BACKGROUND

Rule 12(d) of the Federal Rules of Criminal Procedure requires the Court to state its essential findings on the record when deciding a motion that involves factual issues. See Fed. R. Crim. P. 12(d) ("When factual issues are involved in deciding a motion, the court must state its essential findings on the record."). The findings of fact in this Memorandum Opinion shall serve as the Court's essential findings for rule 12(d) purposes. In deciding such preliminary questions, the other rules of evidence, except those with respect to privileges, do not bind the Court. See Fed. R. Evid. 104(a) ("The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so doing, the court is not bound by evidence rules, except those on privilege."). Having heard and read the evidence presented, both at the hearing and in articles presented to the Court in the briefing and at the hearing, the Court makes the following findings of fact.²

1. The Experts' Backgrounds.

1. The United States' expert witness, Sueann G. Kenney-Noziska, is a licensed clinical social worker and registered play therapist³ supervisor. See Transcript of Motion Proceedings at 65:13-17 (Kenney-Noziska)(taken September 10, 2018), filed September 28, 2018 (Doc. 158)("Sept. Tr.").

2. Kenney-Noziska works exclusively with "abused and traumatized children and adolescents." Sept. Tr. at 66:21-22 (Kenney-Noziska). See id. at 66:22-23 (Kenney-Noziska).

3. In 2016, at the National Center for Missing and Exploited Children's ("NCMEC")⁴ invitation, Kenney-Noziska attended two and one-half days of training "regarding exploited and missing children, so that [she] can provide services when NCMEC needs them in [New Mexico]." Sept. Tr. at 71:4-6 (Kenney-Noziska). See id. at 70:24-71:6 (Kenney-Noziska).

4. Such services for NCMEC "would include working with children who have been, not only physically or sexually abused in person, but also abused through exploitation." Sept. Tr. at 71:16-18 (Mease). See id. at 71:7-19 (Mease, Kenney-Noziska).

5. Kenney-Noziska's areas of specialization are: "Clinical treatment for children and teens"; "outpatient"; "child abuse and neglect or child maltreatment," which includes⁵ "sexual abuse, sexual trauma, and sexual exploitation." Sept. Tr. at 72:8-16 (Kenney-Noziska, Mease).

6. Kenney-Noziska's training also "encompass[es] childhood development and adolescent development." Sept. Tr. at 73:5-6 (Kenney-Noziska).

7. Kenney-Noziska has presented trainings in which "child and adolescent development is interwoven." Sept. Tr. at 73:15-16 (Kenney-Noziska).

8. The children who come to see Kenney-Noziska "all fall on the trauma continuum," Tr. 104:3 (Kenney-Noziska), and are "almost exclusively" "sexually traumatized," Sept. Tr. at 104:4-5 (Zimmerman).

9. Streett's expert witness, Dr. Victor C. Strasburger, worked at the University of New Mexico School of Medicine for twenty-eight years as a professor of pediatrics. See Sept. Tr. at 140:15-18 (Strasburger, Zimmerman); id. at 141:13-15 (Strasburger).

10. Dr. Strasburger also "worked for 18 years at [Sequoyah] Adolescent Treatment Center helping to treat some of the most severe kids in New Mexico for a variety of offenses." Sept. Tr. at 141:17-20 (Strasburger).

11. In 1982, Dr. Strasburger joined the Task Force on Children and Television at the request of the American Academy of Pediatrics, and began "studying children and the media." Sept. Tr. at 142:3-4 (Strasburger). See id. at 140:24-142:4 (Strasburger).

12. Dr. Strasburger "ha[s] authored or co-authored most of the American Academy of Pediatrics policy statements on Children, Adolescents, and the Media." Sept. Tr. at 142:7-9 (Strasburger).

13. The American Academy of Pediatrics has awarded Dr. Strasburger the highest awards available in adolescent medicine and in children and media advocacy. See Sept. Tr. at 142:14-17 (Strasburger).

14. Dr. Strasburger has authored thirteen books, including four textbooks, on Children, Adolescents, and the Media -- one of these textbooks is widely used in college communications courses around the United States. See Sept. Tr. at 142:7-12 (Strasburger); id. at 142:21-143:2 (Zimmerman, Strasburger).

15. Dr. Strasburger has lectured "about 500 times in [his] career on various continents, including Europe, Asia, and Australia," and in forty-seven of the fifty states. Sept. Tr. at 143:5-7 (Strasburger). See id. at 143:10 (Strasburger).

16. Since 2010, "[v]irtually every lecture [Dr. Strasburger has] given ... has included sexting." Sept. Tr. at 143:17-18 (Strasburger).

2. The Definition of "Sexting."

17. The media has coined the term "sexting," a portmanteau of "sex" and "texting," which has a number of definitions and commonly includes the sharing of sexually explicit images, videos, or messages with peers. See Sept. Tr. at 75:10-12 (Kenney-Noziska); id. at 82:20-22 (Kenney-Noziska)(describing the images and videos considered sexts as "naked portrayals"); id. at 106:11-13 (Zimmerman)(describing sext messages as including "sexually explicit verbiage"); id. at 202:23-203:2 (Strasburger)(stating that the consensus is that sexting includes any sexual images, videos, or text messages); Nat'l Ctr. for Missing & Exploited Children, Policy Statement on Sexting at 1 (Sept. 1, 2009), filed December 1, 2017 (Doc. 77-2)("NCMEC Statement"); Sheri Madigan et al., Prevalence of Multiple Forms of Sexting Behavior Among Youth: A Systemic Review and Meta-Analysis, 172 JAMA Pediatrics 327, 328 (2018)(submitted to the Court at the September 10, 2018, evidentiary hearing as Plaintiff's Hearing Exhibit 5)("Meta-Analysis").

18. "Sexting" is "a popular term among the public" used broadly to encompass a wide variety of content. Kaitlin Lounsbury et al., The True Prevalence of "Sexting" at 6 (Crimes Against Children Research Ctr., 2011), filed July 9, 2018 (Doc. 137-2)("True Prevalence").

19. The term "sexting," "is most commonly used to describe the creation and transmission of sexual images by minors."⁶ True Prevalence at 3.

20. In the study "Sexting: A Typology," the authors reviewed 550 cases of "youth-produced sexual images," which are "images of minors created by minors that could qualify as child pornography under applicable criminal statutes." Janis Wolak & David Finkelhor, Sexting: A Typology at 2 (Crimes Against Children Research Ctr., 2011), filed July 9, 2018 (Doc. 137-1)("Typology").

21. Professors Janis Wolak and David Finkelhor divide sexting into two broad categories: "experimental" and "aggravated." Typology at 2. See Sept. Tr. at 83:21-23 (Kenney-Noziska).

22. "Experimental" sexting is defined as youth-produced images sent "to established boy- or girlfriends, to create romantic interest in other youth, or for other reasons such as attention-seeking." Typology at 2. See Sept. Tr. at 85:12-17 (Kenney-Noziska)(describing experimental sexting as teen-produced, shared with a teen peer, in a romantic relationship or to seek sexual attention); id. at 130:4-16 (Zimmerman, Kenney-Noziska)(underlining the consensual...