United States v. X-Citement Video, Inc.

• Citation: 130 L.Ed.2d 372,115 S.Ct. 464,513 U.S. 64
• Decision Date: 29 November 1994
• Docket Number: 93723
• Parties: UNITED STATES, Petitioner v. VIDEO, INC., et al
• Court: United States Supreme Court

513 U.S. 64

115 S.Ct. 464

130 L.Ed.2d 372

UNITED STATES, Petitioner

v X-CITEMENT VIDEO, INC., et al.

No. 93-723.

Supreme Court of the United States

Argued Oct. 5, 1994.

Decided Nov. 29, 1994.

Syllabus ^*

Respondents were convicted under the Protection of Children Against Sexual Exploitation Act of 1977, which prohibits "knowingly" transporting, shipping, receiving, distributing, or reproducing a visual depiction, 18 U.S.C. §§ 2252(a)(1) and (2), if such depiction "involves the use of a minor engaging in sexually explicit conduct," §§ 2252(a)(1)(A) and (2)(A). In reversing, the Ninth Circuit held, inter alia, that § 2252 was facially unconstitutional under the First Amendment because it did not require a showing that the defendant knew that one of the performers was a minor.

Held: Because the term "knowingly" in §§ 2252(a)(1) and (2) modifies the phrase "the use of a minor" in subsections (1)(A) and (2)(A), the Act is properly read to include a scienter requirement for age of minority. This Court rejects the most natural grammatical reading, adopted by the Ninth Circuit, under which "knowingly" modifies only the relevant verbs in subsections (1) and (2), and does not extend to the elements of the minority of the performers, or the sexually explicit nature of the material, because they are set forth in independent clauses separated by interruptive punctuation. Some applications of that reading would sweep within the statute's ambit actors who had no idea that they were even dealing with sexually explicit material, an anomalous result that the Court will not assume Congress to have intended. Moreover, Morissette v. United States, 342 U.S. 246, 271, 72 S.Ct. 240, 254, 96 L.Ed. 288, reinforced by Staples v. United States, 511 U.S. ----, ----, 114 S.Ct. 1793, 1799, 128 L.Ed.2d 608, instructs that the standard presumption in favor of a scienter requirement should apply to each of the statutory elements which criminalize otherwise innocent conduct, and the minority status of the performers is the crucial element separating legal innocence from wrongful conduct under § 2252. The legislative history, although unclear as to whether Congress intended "knowingly" to extend to performer age, persuasively indicates that the word applies to the sexually explicit conduct depicted, and thereby demonstrates that "knowingly" is emancipated from merely modifying the verbs in subsections (1) and (2). As a matter of grammar, it is difficult to conclude that the word modifies one of the elements in (1)(A) and (2)(A), but not the other. This interpretation is supported by the canon that a statute is to be construed where fairly possible so as to avoid substantial constitutional questions. Pp. __.

982 F.2d 1285 (CA 9 1992), reversed.

REHNQUIST, C.J., delivered the opinion of the Court, in which STEVENS, O'CONNOR, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. STEVENS, J., filed a concurring opinion. SCALIA, J., filed a dissenting opinion, in which THOMAS, J., joined.

Drew S. Days, III, Washington, DC, for petitioner.

Stanley Fleishman, Los Angeles, CA, for respondents.

Chief Justice REHNQUIST delivered the opinion of the Court.

The Protection of Children Against Sexual Exploitation Act of 1977, as amended, prohibits the interstate transportation, shipping, receipt, distribution or reproduction of visual depictions of minors engaged in sexually explicit conduct. 18 U.S.C. § 2252. The Court of Appeals for the Ninth Circuit reversed the conviction of respondents for violation of this Act. It held that the Act did not require that the defendant know that one of the performers was a minor, and that it was therefore facially unconstitutional. We conclude that the Act is properly read to include such a requirement.

Rubin Gottesman owned and operated X-Citement Video, Inc. Undercover police posed as pornography retailers and targeted X-Citement Video for investigation. During the course of the sting operation, the media exposed Traci Lords for her roles in pornographic films while under the age of 18. Police Officer Steven Takeshita expressed an interest in obtaining Traci Lords tapes. Gottesman complied, selling Takeshita 49 videotapes featuring Lords before her 18th birthday. Two months later, Gottesman shipped eight tapes of the underage Traci Lords to Takeshita in Hawaii.

These two transactions formed the basis for a federal indictment under the child pornography statute. The indictment charged respondents with one count each of violating 18 U.S.C. §§ 2252(a)(1) and (a)(2), along with one count of conspiracy to do the same under 18 U.S.C. § 371.¹ Evidence at trial suggested that Gottesman had full awareness of Lords' underage performances. United States v. Gottesman, No. CR 88-295KN, Findings of Fact ¶ 7 (CD Cal., Sept. 20, 1989), App. to Pet. for Cert. A-39 ("Defendants knew that Traci Lords was underage when she made the films defendant's [sic] transported or shipped in interstate commerce"). The District Court convicted respondents of all three counts. On appeal, Gottesman argued inter alia that the Act was facially unconstitutional because it lacked a necessary scienter requirement and was unconstitutional as applied because the tapes at issue were not child pornography. The Ninth Circuit remanded to the District Court for reconsideration in light of United States v. Thomas, 893 F.2d 1066 (CA9), cert. denied, 498 U.S. 826, 111 S.Ct. 80, 112 L.Ed.2d 53 (1990). In that case, the Ninth Circuit had held § 2252 did not contain a scienter requirement, but had not reached the constitutional questions. On remand, the District Court refused to set aside the judgment of conviction.

On appeal for the second time, Gottesman reiterated his constitutional arguments. This time, the court reached the merits of his claims and, by a divided vote, found § 2252 facially unconstitutional. The court first held that 18 U.S.C. § 2256 met constitutional standards in setting the age of minority at age 18, substituting lascivious for lewd, and prohibiting actual or simulated bestiality and sadistic or masochistic abuse. 982 F.2d 1285, 1288-1289 (CA9 1992). It then discussed § 2252, noting it was bound by its conclusion in Thomas to construe the Act as lacking a scienter requirement for the age of minority. The court concluded that case law from this Court required that the defendant must have knowledge at least of the nature and character of the materials. 982 F.2d, at 1290, citing Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959); New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982); and Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). The court extended these cases to hold that the First Amendment requires that the defendant possess knowledge of the particular fact that one performer had not reached the age of majority at the time the visual depiction was produced. 982 F.2d at 1291. Because the court found the statute did not require such a showing, it reversed respondents' convictions. We granted certiorari, 510 U.S. ----, 114 S.Ct. 1186, 127 L.Ed.2d 536 (1994), and now reverse.

Title 18 U.S.C. § 2252 (1988 ed. and Supp. V) provides, in relevant part:

"(a) Any person who —

"(1) knowingly transports or ships in interstate or foreign commerce by any means including by computer or mails, any visual depiction, if —

"(A) the producing of such visual depiction

           involves the use of a minor engaging in sexually           explicit conduct;  and 
                

"(B) such visual depiction is of such conduct;

"(2) knowingly receives, or distributes, any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, or knowingly reproduces any visual depiction for distribution in interstate or foreign commerce or through the mails, if —

"(A) the producing of such visual depiction

           involves the use of a minor engaging in sexually           explicit conduct;  and 
                

"(B) such visual depiction is of such conduct;

. . . .

shall be punished as provided in subsection (b) of this section."

The critical determination which we must make is whether the term "knowingly" in subsections (1) and (2) modifies the phrase "the use of a minor" in subsections (1)(A) and (2)(A). The most natural grammatical reading, adopted by the Ninth Circuit, suggests that the term "knowingly" modifies only the surrounding verbs: transports, ships, receives, distributes, or reproduces. Under this construction, the word "knowingly" would not modify the elements of the minority of the performers, or the sexually explicit nature of the material, because they are set forth in independent clauses separated by interruptive punctuation. But we do not think this is the end of the matter, both because of anomalies which result from this construction, and because of the respective presumptions that some form of scienter is to be implied in a criminal statute even if not expressed, and that a statute is to be construed where fairly possible so as to avoid substantial constitutional questions.

If the term "knowingly" applies only to the relevant verbs in § 2252—transporting, shipping, receiving, distributing and reproducing—we would have to conclude that Congress wished to distinguish between someone who knowingly transported a particular package of film whose contents were unknown to him, and someone who unknowingly transported that package. It would seem odd, to say the least, that Congress distinguished between someone who inadvertently dropped an item into the mail without realizing it, and someone who consciously placed the same item in the mail, but was nonetheless unconcerned about whether the person had any knowledge of the prohibited contents of the package.

Some applications of respondents' position would produce results that were not merely odd,...