US v. Prytz, Crim. No. 2:92-593.

• Decision Date: 27 May 1993
• Docket Number: Crim. No. 2:92-593.
• Citation: 822 F. Supp. 311
• Court: U.S. District Court — District of South Carolina
• Parties: UNITED STATES of America v. Thomas A. PRYTZ.

822 F. Supp. 311

UNITED STATES of America v. Thomas A. PRYTZ.

Crim. No. 2:92-593.

United States District Court, D. South Carolina, Charleston Division.

May 27, 1993.

COPYRIGHT MATERIAL OMITTED

Joseph P. Griffith, Jr., Charleston, SC, for plaintiff.

Gordon H. Garrett, Charleston, SC, for defendant.

ORDER

NORTON, District Judge.

This matter is before the court upon defendant's motions to dismiss and quash the indictment, and upon defendant's motion to suppress evidence.

I. INDICTMENT

Defendant, Thomas A. Prytz (hereinafter "Prytz" or "defendant"), was indicted for violating 18 U.S.C. § 2252(a)(2) & (b). The indictment states:

That on or about February 27, 1992, in the District of South Carolina, the Defendant, THOMAS A. PRYTZ, knowingly received one video tape containing seven separate films which had been transported and shipped in commerce, said video tape containing visual depictions of minors engaged in sexually explicit conduct, the production of said visual depictions having involved the use of minors engaged in sexually explicit conduct.

Indictment, p. 1 (Count 1).

II. BACKGROUND

The parties have stipulated to and agreed on the basic facts leading up to defendant's indictment. Specifically, the parties have stipulated to and agreed on the factual accuracy of the government's investigative case report summary (hereinafter "government's report") prepared by United States Postal Inspector James Charlton (hereinafter "Inspector Charlton"). The defendant has submitted his own factual statement as a supplement to the government's report.¹ The following factual background is excerpted from the government's report.²

DETAILS OF OFFENSE

U.S. Customs seized an incoming foreign piece of mail on about June 13, 1988 addressed to T.A. Prytz containing child pornography. The status of this seizure is unknown.³

U.S. Customs seized another incoming foreign piece of mail on about October 7, 1991 addressed to Thomas A. Prytz address deleted containing a video tape depicting bestiality or humans engaged in sexual activity with animals.

Information concerning Prytz's change of address deleted.

On August 1, 1991, the South Carolina Law Enforcement Division and Postal Inspectors arrested Mark Stephen Fortier for dissemination of obscene matter by mail. A search of his business was conducted and review of his customer records disclosed some customers were interested in obtaining child pornography. The investigation of Fortier disclosed he had advertised in several `swinger' publications which cater to those interested in sexually explicit conduct and sexually explicit materials. One of his ads read, `Videos, amateur, high-quality, made by swingers for swingers, all interests, over 350 titles. Send long SASE for free brochure to: M & D, POB 1226, Lancaster, SC 29721.'⁴ Subsequent to the arrest of Fortier, Inspector Charlton took over his post office box in order to correspond with individuals writing him regarding sexually explicit video tapes.

Inspector Charlton received a letter postmarked January 25, 1992 at Charleston, SC addressed to M & D at the Lancaster, SC Post Office and bearing the return address of Thomas A. Prytz address deleted.⁵ This letter simply contained Prytz's self-addressed envelope and a postage stamp.

On January 31, 1992, Inspector Charlton mailed an undercover letter to Prytz in his self-addressed stamped envelope. This two page letter purported to be from a company selling sexually explicit video tapes. The second page of this letter contained over 100 general categories or types of tapes for sale and gave the recipient the opportunity to choose five categories he wished to receive more information about. The recipient was advised to circle the five categories he was most interested in and return the form to Inspector Charlton for more information. This form also gave the recipient the opportunity to advise he did not want this type material and to ask that his name be removed from Inspector Charlton's mailing list. The form also contained the following statement for the recipient to sign if he wanted more material:

I swear I am an adult over the age of 21 and that all information requested is for my own personal use and not for resale. I understand these materials contain graphic sexual material and I do not object to such sexual material. I further swear I am not a police officer or postal inspector....

Inspector Charlton received a letter in the mail postmarked February 5, 1992 at Charleston, SC. This letter contained the second page of Inspector Charlton's above letter which had been completed with the name and address of Thomas A. Prytz address deleted. Prytz had circled the sexual categories `animal, bull, dogs, incest and K-9 oldies.' He also wrote on the form that he was interested in materials depicting enemas and fisting.

Inspector Charlton knew from ... experience investigating pornography cases that the terms `animal, bull, dogs and K-9 oldies' refer to bestiality. Inspector Charlton further knew the term incest often refers to child pornography.

On February 26, 1992, Inspector Charlton mailed a letter to Thomas A. Prytz in North Charleston from his undercover operation. This letter contained an order form, an offer to trade video tapes and video catalogs for the categories `GS and pissing tapes, incest tapes, farmyard friends videos and adult tapes.'

One tape on the `GS and pissing tapes' catalog was described as follows:

GS tape No. 35—NO. CVU-GS5—this tape is about 2 hours of various clips— $45 from lots of movies—all with pissing and sex.

Three tapes on the `Farmyard Friends Video' catalog were described as follows:

Animal Lovers—Woman in sex with dogs, pig, horse. Famous horse scene! No. CVU-FFV2—$30

The Horny Dog—Three women having sex with a dog. No. CVU-FFV4—$30

Bull Orgy—Woman having sex with large bull. No. CVU-FFV5—$30

Seven video tapes listed on the `Incest Video Tapes' catalog were described as follows:

The titles of these video tapes were: (1) Schoolboys Sex Orgie; (2) Masturbating Lolita; (3) Lolita Mother and Daughters; (4) Lolita Mother and One Daughter; (5) Lolita Girls and Boy; (6) Teaching Lolita Sex; and (7) Lolita Love Child. Each title had a detailed and graphic description of the contents of the video. The videos depicted sexual activities of children ranging from ages 6 to 16. Inspector Charlton and defendant's attorney agreed at the hearing before this court that these descriptions accurately described the contents of the videos.

Inspector Charlton received a letter at his undercover operation postmarked February 10, 1992 at Charleston, SC and bearing the return address of Thomas A. Prytz address deleted. This letter contained the above order form which had been completed with the name and address of Thomas A. Prytz.... The order form was completed to show his order of eleven video tapes from the GS and Pissing catalog, Farmyard Friends catalog and Incest Video catalog sent to him previously. Mr. Prytz ordered the following tapes: `No. 35 ..., Animal Lovers ..., The Horny Dog ..., Bull Orgy ..., Schoolboys Sex Orgy ..., Masturbating Lolita ..., Lolita Mother and Daughters ..., Lolita Mother and One Daughter ..., Lolita Girls and Boy ..., Teaching Lolita Sex ... and Lolita Love Child....' Also included with the order form for these eleven tapes was a personal check on the personal account of Thomas A. Prytz dated February 7, 1992, in the amount of $390.00 and payable to Inspector Charlton's undercover company. This check bore the name and address of Thomas A. Prytz address deleted.

Based upon all of the above correspondence with Thomas A. Prytz and his order for eleven video tapes depicting sexual activity involving urination, sexual activity between humans and animals and child pornography, three video tapes depicting minors under the age of 18 engaged in sexually explicit conduct were prepared from previously seized materials. One tape was labeled `GS tape No. 35....' The second tape was labeled `Animal Lovers ..., The Horny Dog ... and Bull Orgy....' The third tape was labeled `Schoolboys Sex ..., Masturbating Lolita ..., Lolita Mother/Daughters ..., Lolita Mother/Daughter ..., Lolita Girls/Boys ..., Teaching Sex ... and Love Child....'

Inspector Charlton verified through the Postal Service that Thomas A. Prytz receives mail at address deleted.

The above three video tapes prepared in response to Thomas A. Prytz's order were placed in a mailing container addressed to Thomas A. Prytz address deleted.

On February 27, 1992, the above package containing the video tapes prepared in response to Prytz's order was delivered by United States mail to Thomas A. Prytz address deleted.

Subsequent to the delivery of the video tape to Mr. Prytz, a federal search warrant was executed.

INTERVIEW OF OPERATOR

U.S. Postal Inspectors and a North Charleston Police Detective identified themselves to Mr. Prytz and advised him of the federal search warrant. Mr. Prtyz sic was also advised of his Miranda Rights and he agreed to answer questions. Inspector Charlton told Mr. Prytz he wanted to ask him about the package he just received. Mr. Prytz said he wished to cooperate and had nothing to hide. He stated he saw an advertisement in a swingers magazine and wrote to the advertiser for information. He said he purchased some video tapes which arrived today. He stated they were animal and golden shower tapes. Inspector Charlton asked him if he also bought child pornography tapes and he stated he did not. He said the tapes he ordered were adult tapes. Inspector Charlton questioned Mr. Prytz about his ordered tapes again and he reiterated he only ordered adult tapes.

Inspector Charlton then told Mr. Prytz he knew he was lying because he purchased the tapes from his undercover company and he knew he ordered seven tapes containing child pornography. Inspector Charlton showed him his original letters, check and order form and he identified them as his letters. He then admitted he did

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