US v. Porter
| Citation | 709 F. Supp. 770 |
| Decision Date | 07 March 1989 |
| Docket Number | No. 88-CR-80554-DT.,88-CR-80554-DT. |
| Parties | UNITED STATES of America, Plaintiff, v. Allen Arthur PORTER, Defendant. |
| Court | U.S. District Court — Western District of Michigan |
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Richard Delonis, Asst. U.S. Atty., Detroit, Mich., for plaintiff.
Vincent P. Schumacher, Detroit, Mich., for defendant.
This is a criminal action wherein defendant, Allen Porter, was indicted on two counts as a result of a Government sting operation.
Count One alleged a violation of 18 U.S. C. § 2251(c)(1)(A), the knowing, willful and unlawful publication of a notice to buy or receive visual depictions of minor children engaged in sexually explicit conduct. Count One was dismissed by the Court prior to trial because defendant merely responded to an unsolicited advertisement sent by a Government agent. The undisputed facts indicated that the only "notice" was sent by the Government.
Count Two alleged a violation of 18 U.S. C. § 2252(a)(2), the knowing, willful and unlawful receipt of visual depictions of minor children engaged in sexually explicit conduct. On November 16, 1988, a jury trial commenced with respect to Count Two of the Indictment. On November 23, 1988, the jury returned a guilty verdict.
On December 14, 1988, defendant was provided an opportunity to create a special record regarding the alleged outrageous conduct of the government. Defendant's special record spanned over three days. Six witnesses testified before the Court and twenty exhibits were received for consideration limited to the special record created by defendant.
Currently before the Court are three post-trial motions filed by defendant: a motion for acquittal pursuant to Fed.R. Crim.P. 29; a motion for a new trial; and a motion for acquittal based upon the government's outrageous conduct.1 Each motion is addressed separately.
Defendant submits that an acquittal must be granted because (1) the government failed to prove its case beyond a reasonable doubt, and (2) the jury failed to follow the jury instructions. For the reasons stated below, the Court rejects defendant's arguments.
A motion for judgment of acquittal pursuant to Fed.R.Crim.P. 29 must be considered in the light most favorable to the Government. United States v. Williams, 503 F.2d 50 (6th Cir.1974). The Supreme Court set forth the standard of review for a motion of acquittal in Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1941):
It is not for the courts to weigh the evidence or to determine the credibility of the witnesses. The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it.
If the evidence is such that reasonable minds could differ on the issue of reasonable doubt, then the motion for acquittal must be denied.
Defendant submits the Government failed to establish defendant's specific intent to receive child pornography. This contention is patently without merit.
The most significant evidence regarding defendant's intent is the undercover solicitation to which defendant responded. The solicitation stated, in relevant part:
The solicitation offered photographs of "boys and girls in sex action" and "young boys in sex action." The titles of the photograph packages included: Lolita; School Girls and Boys; Nymph Lover; Loving Children; Lesbian Lolita; Life Boy; Lover Boys; Mini Boys; and Chicken. Evidence was presented that the terms "chicken," "Lolita" and "nymph" are known within the pornography industry to indicate child pornography. Defendant responded to the solicitation by ordering the photo set entitled "Nymph Lover." The solicitation provided for "substitute selections" to "avoid delay." Defendant's substitute selections were: "Loving Children," "Lesbian Lolita" and "Lolita." In addition, defendant sent a hand-written note with his order that stated, in relevant part, "I am very interested in any films or video tapes available for this subject matter."
This Court finds the above stated evidence to be sufficient for a reasonable mind to find beyond a reasonable doubt that defendant acted with the specific intent to purchase child pornography through the U.S. mails. Accordingly, defendant's motion must be denied to the extent it addresses defendant's specific intent.
Defendant next argues the Government failed to establish that the production of the photograph received by defendant violated 18 U.S.C. § 2252(a)(2). Specifically, defendant argues that the age of the subject in the photographs was not established, that the evidence did not establish the photographs were produced before 1984 and that the production of the materials received by defendant did not involve the use of a minor.
18 U.S.C. § 2252(a)(2) provides, in relevant part:
Minor is defined as any person under the age of eighteen years. 18 U.S.C. § 2256(1).
Defendant's first assertion, that the Government failed to establish the age of the photograph subject, is totally groundless. The trial testimony of Dr. Postellon, a pediatrician specializing in child growth and development, indicated that the subject was approximately 10 years of age. Doctor Postellon further testified that he was nearly certain the child was no greater than 13 years of age. Defendant submits that Dr. Postellon's testimony was rendered worthless by the doctor's assumption that the subject was a female and the doctor's admission that the photograph could have been professionally retouched to conceal the subject's true age. The assumptions and admissions of Dr. Postellon do not render his testimony worthless. Rather, they merely create a question of fact to be resolved by the jury. The jury considered defendant's arguments and soundly rejected them in favor of the competent evidence presented by the Government. This Court cannot alter the jury's finding since there is more than substantial evidence to support the conclusion that the subject of the photograph was a minor child.
Defendant also argues that the Government failed to provide any proof regarding the production date of the photographs. Defendant argues there exists a substantial likelihood that the production of the photographs predate the 1984 amendments to the statute. Prior to the 1984 amendments, the term "minor" was defined as a person under the age of 16 years. Defendant submits that a conviction without proof as to the production date of the photographs violates defendant's Constitutional right to due process and his right to be free from ex-post facto conviction. Defendant's argument defies logic since it ignores the fact that transportation and receipt of the materials are the gravamen of the offense to which defendant has been convicted. The production date of the photographs is wholly immaterial to the offense. Moreover, assuming the date of production to be material, defendant merely notes a distinction without a difference. The Government witness testified that the photograph subject was a female child no greater than 13 years of age. Although the defendant attacked the credibility of the Government witness, defendant failed to offer any evidence to support the conclusion that the child was sixteen years of age or older. Accordingly, to the extent that the date of production of the photographs is material, the result of this case would be no different.
Defendant's final argument regarding the photographs is that the actual physical photographs supplied to defendant by the U.S. Customs Service did not involve the use of minors because they were photographs of pictures contained in a child pornography magazine.
Defendant's argument ignores the fact that the original production of the photographs depicted in the magazine involved the use of minors. The U.S. Customs Service did not produce the photographs but merely reproduced them. If defendant's logic was accepted, persons who receive photographs of child pornography that are reproduced from photograph negatives could not be convicted under the statute since the production involved the use of negatives rather than minor children. Such a result is absurd and clearly not intended by the statute.
Defendant also argues the Government failed to establish that defendant was predisposed to commit the crime of which he has been found guilty. Of the myriad of arguments offered by defendant, the Court is most troubled by this particular contention.
The defense of entrapment centers upon the intent or predisposition of the defendant...
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U.S. v. Peel
...of pornography that was legal when created. United States v. Bateman, 805 F.Supp. 1053, 1055 (D.N.H.1992); United States v. Porter, 709 F.Supp. 770, 774 (E.D.Mich. 1989), aff'd, 895 F.2d 1415 (6th Cir.1990). But he contends that unless his interpretation is adopted, the statute will be inco......
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Peel v. United States
...the Seventh Circuit found it to be frivolous (in addition to being forfeited). See Peel, 668 F.3d at 510; see also United States v. Porter, 709 F.Supp. 770 (E.D. Mich. 1989), aff'd, 895 F.2d 1415 (6th Cir. 1990) ("The production date of the photographs is wholly immaterial to the offense").......
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