On Appeal from the United States District Court for the District of New Jersey, D.C. Criminal No. 87-00302-01.
Stapleton, Scirica, and Cowen, Circuit Judges.
The United States appeals the order of the district court aquitting defendant Lowell Brown ("Brown") of knowingly receiving child pornography in violation of 18 U.S.C. § 2252 (1986). Brown was found guilty by a jury on February 18, 1988. The district court thereafter granted his motion for a judgment of aquittal pursuant to Fed.R.Crim.P. 29(c) on April 19, 1988.
We determine that the district court erred in its construction of the statute. We also conclude that the evidence, when viewed in the light most favorable to the United States, supports the jury's verdict. Accordingly, we will vacate the order of acquittal, reinstate the jury verdict of guilty, and remand the matter to the district court for sentencing.
As part of a sting operation named "Project Looking Glass," the United States Postal Inspection Service in the spring of 1986 sent letters to certain individuals identified as being interested in child pornography. These individuals' names had appeared on lists compiled from investigations by the Postal Inspection Service and the United States Customs Service, and from information provided by state and local police. The letters were sent by a sham company dubbed Far Eastern Trading Corporation ("Far Eastern"), which purported to be based overseas and to deal in child pornography. The letters stated that "we have devised a method of getting these [child pornography materials] to you without prying eyes of U.S. Customs seizing your mail," and invited the recipients to respond for further information. App. at 166.*fn1
One such letter was sent to Brown. In order to obtain further information, he provided his name and address on a coupon attached to the letter, signed it, and returned it to the address given in the letter. Far Eastern responded with a letter to Brown stating that its catalogue would be available in the fall of 1986, and also that it would be producing its own child pornography publication. In December 1986, Brown wrote inquiring about the delay and requesting a catalogue. At about the same time, a catalogue was sent to him.
The catalogue had been compiled by a postal inspector. It contained the same descriptions of movies, videotapes, and magazines which had actually been used by the child pornography distributors in their own catalogues. It was accompanied by a letter containing ordering instructions. Because the Postal Inspection Service did not expect to actually sell anything from the catalogue, the letter instructed the purchaser to order materials COD rather than to send money. In addition, because the Postal Inspection Service was seeking people who were interested in submitting, as well as receiving child pornography, another letter accompanying the catalogue described a magazine which Far Eastern planned to publish, and offered preference to any individual who sent materials to Far Eastern. There is no dispute that the catalogue describes pornographic materials involving children and that the materials described in the catalogue constitute child pornography.
On the same day he received the catalogue, Brown wrote back to Far Eastern. Relevant excerpts of that letter include the following:
I would like to enter a business relationship for priority service, but I do not currently have the necessary material you require. Hopefully, by summer 1987 I will have something to offer.
However, I would still very much appreciate your considering me as a customer. But in the interest of establishing as safe an exchange system as possible, allow me to explain my situation. Three years ago I had a problem with U.S. Customs though nothing legal ever developed. For a short time (6 months) some of my mail was opened, especially cartons or boxes. However over the last two years I have ordered adult materials . . . through the mails with no problems whatsoever. . . . I am interested in your "Teen Sex Video" series (all 3 titles). While I am not concerned with receiving mainstream adult videos C.O.D., I would be concerned at receiving this video series C.O.D. because might it not attract more attention than if it were pre-payed.
[I]f you accept me as a customer, would you take prepayment.
I would appreciate your reply & opinion. I would have written you sooner. . . . [But] . . . I wanted to wait to see if you really had what I wanted.
App. at 173-75. In a postscript Brown asked, "if I were to buy films from you," whether he would be permitted to transfer films to videotape and return the films for partial ...