The Government opposed later in the day on May 14, 1987. In addition, the Government supplied the court with a copy of the photograph in question on May 15, 1987. For the reasons set forth below, defendant's Motion to Dismiss the Indictment will be denied.
Defendant first avers that the indictment, "fails and must be dismissed for lack of notice to the defendant . . . ." Document 8 of the Record at 2. The indictment refers to 18 U.S.C. § 2255 in identifying the section which defines the term "sexually explicit conduct." While the definition of "sexually explicit conduct" currently is found at 18 U.S.C. § 2256,
the violation alleged is that of section 2252(a)(1), which is specifically identified in the indictment. Moreover, there is no question that the indictment fairly informs defendant of the allegations against him and permits defendant to plead an acquittal or conviction to bar a future prosecution. Sanabria v. United States, 437 U.S. 54, 57 L. Ed. 2d 43, 98 S. Ct. 2170 (1978).
A violation of § 2252(a)(1) requires that, "the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct . . . ." 18 U.S.C. § 2252(a)(1)(A). For purposes of this section, minor means any person under the age of eighteen (18) years. 18 U.S.C. § 2256(1).
Defendant argues that the picture in question may not be a minor. Document 8 of the Record at 3. Although defendant interprets the photograph with a view towards showing that a minor is not depicted, Document 9 of the Record at 3, the Government represents that it will present the opinion of a pediatrician at trial that the person pictured was a minor female. Document 10 of the Record at 4-5. Defendant offers no similar evidence in opposition. Consequently, the indictment is not defective in this regard.
Finally, defendant maintains that the photograph does not depict "sexually explicit conduct." After examining the picture in question, the court does not agree.
Section 2256(2) provides in pertinent part:
(2) 'sexually explicit conduct' means actual or simulated --