Appeal from the United States District Court for the Eastern District of Pennsylvania. D.C. Crim. No. 92-00415-01.
Before: Mansmann, Nygaard and Seitz, Circuit Judges.
Defendant William Q. Cochran appeals from a judgment and sentence after a plea of guilty to possessing and transporting child pornography in interstate commerce in violation of 18 U.S.C. § 2252(a)(1) and (a)(4). The district court had jurisdiction over this criminal prosecution for violation of a federal statute under 18 U.S.C. § 3231. This court has jurisdiction over the final order of the district court under 28 U.S.C. § 1291.
Employees of Atlas Van Lines advised the Philadelphia police that they suspected that Cochran moved items containing child pornography from Colorado to Pennsylvania. Pursuant to a search warrant, the Philadelphia police seized photographs and equipment connected to the production of child pornography at Cochran's new residence. Cochran admitted knowingly possessing the seized material.
After an unsuccessful motion to suppress the items seized and his incriminating statement, Cochran pled guilty. The district court allowed Cochran to modify his plea to preserve for appeal the issues addressed below.
Cochran raises two issues in this appeal. First, he challenges the constitutionality of the federal child pornography statute, 18 U.S.C. § 2522, on the ground that it lacks a scienter requirement as to the minority of the performer. Most courts that have addressed the issue have upheld the statute; however, they differ in their methods of finding a scienter requirement in the statute. Some courts construe the statutory language to embody a knowledge requirement; other courts read in a recklessness requirement as a saving construction. The choice is important because the availability of relief under the second issue presented turns on which construction is employed. Our review of the district court's statutory construction is de novo. United States v. Brown, 862 F.2d 1033, 1036 (3d Cir. 1988).
Cochran's second challenge is to the sufficiency of his indictment, which tracked the language of the statute. If the scienter requirement is fulfilled by the statutory language, the indictment sufficiently alleged all the elements of the crime. On the other hand, if the scienter requirement is supplied by the judicial addition of a recklessness standard, the indictment is fatally flawed because it omitted an essential element. An indictment that fails to charge all the elements of a crime must be dismissed. Russell v. United States, 369 U.S. 749, 763-64, 8 L. Ed. 2d 240, 82 S. Ct. 1038 (1962). Our review of the sufficiency of an indictment is de novo. United States v. Werme, 939 F.2d 108, 112 (3d Cir. 1991), cert. denied, 117 L. Ed. 2d 412, 112 S. Ct. 1165 (1992).
In order to prevent chilling expression protected by the First Amendment, statutes criminalizing obscenity must require proof of scienter. In Smith v. California, 361 U.S. 147, 4 L. Ed. 2d 205, 80 S. Ct. 215 (1959), the Supreme Court struck down a strict liability statute that outlawed possession of obscene material in bookstores and other places. The Court reasoned that if the bookseller could be jailed for stocking books ...