filed: June 9, 1994; As Corrected June 21, 1994.
On Appeal from the United States District Court for the Middle District of Pennsylvania. (D.C. Crim. No. 91-00074). Argued August 17, 1992. Decided October 15, 1992. Certiorari Granted June 7, 1993. On Remand from the Supreme Court of the United States November 1, 1993. Reargued April 27, 1994.
Before: Hutchinson, Cowen and Weis, Circuit Judges.
The principal question presented by this appeal is whether videotapes that focus on the genitalia and pubic area of minor females constitute a "lascivious exhibition of the genitals or pubic area" under the federal child pornography laws, 18 U.S.C. §§ 2252(a)(2), (4) and 2256(2)(E) (1988 & Supp. IV 1992), even though these body parts are covered by clothing. When this case first came before us, we held that such visual depictions do qualify as lascivious exhibitions and that this interpretation does not render the statute unconstitutionally overbroad. United States v. Knox, 977 F.2d 815, 820-23 (3d Cir. 1992), vacated and remanded, __ U.S. __, 114 S. Ct. 375 (1993).
At the Supreme Court's instruction, we have further considered this case "in light of the position asserted by the Solicitor General in his brief for the United States," Knox v. United States, __ U.S. __, 114 S. Ct. 375 (1993). In that brief and in its subsequent brief filed in this court after the Supreme Court remand, the government argues that the plain language of the statute requires the genitals or pubic area exhibited to be at least somewhat visible or discernible through the child's clothing. We hold that the federal child pornography statute, on its face, contains no nudity or discernibility requirement, that non-nude visual depictions, such as the ones contained in this record, can qualify as lascivious exhibitions, and that this construction does not render the statute unconstitutionally overbroad. Finally, we again conclude that the government presented sufficient evidence at the bench trial to establish both the necessary mens rea and the delivery of the films through interstate mail. We thus will reaffirm Knox's conviction.
In March of 1991, the U.S. Customs International Branch intercepted a mailing to France which contained a request that two videos, "Little Girl Bottoms (Underside)" and "Little Blondes," be sent to J. Richard Scott, 210 West Hamilton Avenue, No. 108, State College, Pennsylvania. The parcel also contained a check drawn on the account of defendant Stephen A. Knox and bearing his signature. The check listed his address as 210 East Hamilton Avenue, No. 25, State College, Pennsylvania. A second envelope addressed to J. Richard Scott from the Netherlands also was confiscated and contained a catalog advertising for sale videotapes depicting nude, semi-clothed, and clothed minors. Aware that Knox previously had been convicted of receiving child pornography through the mail, the customs investigators obtained a search warrant and with the assistance of the Pennsylvania State Police searched his apartment.*fn1
The police officers seized three video cassettes produced by the Nather Company (hereafter "Nather Tapes"), a videotape distribution company based in Las Vegas, Nevada. A catalogue from the Nather Company with checkmarks next to several video selections was also removed from Knox's apartment. One of the marked videos in the brochure corresponded to a segment of a compilation tape which was seized. Envelopes addressed to Nather and Nather mail order forms were discovered as well as a carbon copy of a money order payable to Nather Company for an amount approximately equal to the price of a single video.
The tapes contained numerous vignettes of teenage and preteen females, between the ages of ten and seventeen, striking provocative poses for the camera. The children were obviously being directed by someone off-camera. All of the children wore bikini bathing suits, leotards, underwear, or other abbreviated attire while they were being filmed. The government conceded that no child in the films was nude, and that the genitalia and pubic areas of the young girls were always concealed by an abbreviated article of clothing. The photographer would zoom in on the children's pubic and genital area and display a close-up view for an extended period of time. Most of the videotapes were set to music. In some sequences, the child subjects were dancing or gyrating in a fashion not natural for their age. The films themselves and the promotional brochures distributed by Nather demonstrate that the videotapes clearly were designed to pander to pedophiles.
The United States prosecuted Knox based exclusively on the three Nather tapes. Knox was indicted on two counts: (1) knowingly receiving through the mail visual depictions of a minor engaged in sexually explicit conduct; and (2) knowingly possessing three or more videotapes that contain a visual depiction of a minor engaging in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(2) and (4). "Sexually explicit conduct" for both of these offenses is defined to include a "lascivious exhibition of the genitals or pubic area." Id. § 2256(2)(E).
Pursuant to Federal Rule of Criminal Procedure 12(b), Knox filed a pre-trial motion to dismiss the indictment contending that the videos did not contain an "exhibition" of the genitals or pubic area since these areas were always covered by underwear, leotards, or a bathing suit. Knox and the government agreed to a pre-trial hearing to determine whether the indictment was facially sufficient. The district Judge viewed portions of the Nather tapes which the parties stipulated were representative of the material contained in the videos. To determine the meaning of the statutory language "exhibition of the . . . pubic area," the district court looked to the plain meaning of the words. Since the pubic area is located directly adjacent to the genitalia, the district court concluded that other areas in close proximity to the genitals, specifically the "uppermost portion of the inner thigh," were also included in the statutory definition of the pubic area. District Court Memorandum at 14; App. at 41. Since the upper portion of the inner thigh was clearly exposed, the court held that the tapes contained an exhibition of the pubic area, and therefore denied Knox's motion to dismiss the indictment.
Knox waived his right to a jury trial and a bench trial was held. At the bench trial, all of the exhibits and testimony from the pre-trial hearing were incorporated into the record for purposes of the trial. Additionally, the government admitted into evidence advertising catalogues from Nather, Nather mail order forms, and envelopes addressed to the Nather Company which were seized from Knox's apartment. The catalogues described in detail the contents and intended effect of the films that could be purchased:
"Sassy Sylphs" will blow your mind so completely you'll be begging for mercy.
Just look at what we have in this incredible tape: about 14 girls between the ages of 11 and 17 showing so much panty and ass you'll get dizzy. There are panties showing under shorts and under dresses and skirts; there are boobs galore and T-back (thong) bathing suits on girls as young as 15 that are so revealing it's almost like seeing them naked (some say even better).
District Court Memorandum at 11; App. at 38.
The government also introduced evidence to establish that Nather mailed the tapes from its office in Nevada to the mailbox which Knox had rented under a fictitious name. Finally, the carbon copy of a sixty-two dollar money order payable to Nather was admitted to prove the method of payment. Although Knox did not testify and called no defense witnesses, he introduced magazine advertisements for Nather's videotapes which claimed that the absence of complete nudity rendered the tapes legal to purchase and possess.
The district court found Knox guilty on both counts. Thereafter, on February 13, 1992, Knox filed a motion for a judgment of acquittal or, alternatively, as he styled it, an application for a hearing to explore the anatomical issue decided by the court, predicated upon the contention that the uppermost portion of the inner thigh is not the pubic area. In conjunction with this motion, Knox submitted the affidavit of Dr. Todd Olsen, Director of Human Gross Anatomy at the Albert Einstein College of Medicine. The affidavit of Dr. Olsen stated that defining the pubic area to encompass the uppermost portion of the inner thigh is anatomically incorrect. Since the motion was filed three months after entry of the verdict, the district court denied the motion as untimely. Knox was sentenced to the minimum mandatory term of imprisonment of five years for each count, to be served concurrently. The sentence has been stayed pending the outcome of this appeal.
Knox appealed the denial of the motion to dismiss the indictment, the guilty verdict, and the denial of the post-trial motion for judgment of acquittal.*fn2 We upheld Knox's conviction. In doing so, we interpreted the statutory phrase "exhibition of the genitals or pubic area" as encompassing the lascivious focus on these body parts even though they were always covered by underwear, leotards, or other thin but opaque clothing. United States v. Knox, 977 F.2d 815, 820-23 (3d Cir. 1992), vacated and remanded, __ U.S. __, 114 S. Ct. 375 (1993). We are the first, and to date only,*fn3 court which has interpreted the statute to allow for a conviction under these circumstances.
After we affirmed his conviction, Knox successfully petitioned the U.S. Supreme Court for certiorari. See Knox v. United States, __ U.S. __, 113 S. Ct. 2926 (1993). In his petition for certiorari, Knox presented four issues, most of which focus on whether there can be an "exhibition of the genitals or pubic area" under 18 U.S.C. § 2256(2)(E) where the genitals and pubic area are fully covered by an article of clothing.*fn4 In its brief opposing the grant of certiorari, the government supported the theory we adopted in upholding Knox's conviction. After the grant of certiorari, and the change in administration following President Clinton's election, the government took a different position.
The government's new position is that while complete nudity is not absolutely required for a depiction to constitute a criminal "exhibition," this court "erred in holding that simply focusing on the midsection of a clothed body may constitute an 'exhibition' of the unrevealed body parts beneath the garments." Gov't Sup. Ct. Brief (Sept. 1993) at 10. In the government's view, a criminal "exhibition" requires both that the visual depiction focus in on the body parts and that it render them visible or discernible in some fashion. Id.
Reviewing the legislative history, the government noted that the Justice Department in 1977 had made a suggestion to substitute the phrase "lewd exhibition of the genitals or pubic area" for a more vague phrase in order to more clearly delineate "what types of nude portrayals of children were intended to be encompassed" within the statute. Id. at 11 (quoting Protection of Children Against Sexual Exploitation: Hearings Before the Subcomm. to Investigate Juvenile Delinquency of the Senate Comm. on the Judiciary, 95th Cong., 1st Sess. 77-78 (1977), reprinted in 1978 U.S.S.C.A.N. 63 (letter from Patricia M. Wald, Assistant Attorney General to James O. Eastland, Chairman, Committee of the Judiciary)) (emphasis added by government). The government reads this legislative history as an indication that Congress only intended to criminalize depictions that are at least partly nude in nature. In our prior opinion, we distinguished this legislative history by noting that the language of the Wald letter assumed that Congress only intended to criminalize nude depictions because the language of the bill at that time contained the word "nudity."
As to the scope of nudity required, the government did not go so far as to agree with Knox that complete nudity is required. Rather, the government asserted that Congress intended to criminalize depictions of genitals that are at least somewhat visible. Id. at 11-12. Thus, the government stated that a child's genitals which are covered by a transparent or nearly transparent garment, or clothing that is so tight as to reveal completely the contours of the genitals, would constitute a criminal "exhibition" within the meaning of the statute. Id. at 12.*fn5 Ultimately, the government believes that the child's genitals or pubic area must be "discernible" through his or her tight clothing in order for the exhibition to be child pornography under 18 U.S.C. § 2256(2)(E).
The government put forth a second reason why our prior opinion could not be fully supported. Relying on the introductory statutory language which states that § 2252(a) covers only depictions involving "the use of a minor engaging in sexually explicit conduct," 18 U.S.C. § 2252(a) (emphasis added), the government concluded that a criminal "exhibition" exists only where "the minors who appear in the videotapes can be said to have been acting or posing lasciviously." Gov't Sup. Ct. Brief (Sept. 1993) at 13. Thus, according to the government's position, the appropriate inquiry is on whether the child lasciviously poses her (or someone else's) genitals or pubic area. See id. Because neither this court nor the district court interpreted the statute in this fashion, the government requested that the Supreme Court vacate the judgment and remand for reconsideration in light of the "correct" statutory standard.
The government also addressed two related issues in its Supreme Court brief. First, it argued that adoption of the advocated statutory standard would not render the statute unconstitutionally vague or overbroad. Id. 14-17.*fn6 Finally, the government supported that part of our prior opinion which rejected Knox's argument that he did not possess the necessary mens rea to violate the child pornography statute because he did not know the illegal nature of the contents of the videos, and because he relied on disclaimers which accompanied the videotapes from their commercial source. Id. at 17-20; see also Knox, 977 F.2d at 824-25.
In the final section of its Supreme Court brief, the government stated that the videotapes at issue in this case might be deemed unlawful under the statutory standard advocated in its brief. Because we did not interpret the statute consistently with the government's new position, the government requested that the case "be remanded so that the Court of Appeals can assess the sufficiency of the evidence under the proper legal standard." Gov't Sup. Ct. Brief (Sept. 1993) at 20. The government clarified that the only task necessary on remand was for this court "simply to determine whether the evidence was sufficient, under the correct legal standard, to support a general verdict of guilty." Id. at 23.
Upon the close of briefing in the Supreme Court, but before the case was argued, the Court vacated the judgment and remanded. See Knox v. United States, __ U.S. __, 114 S. Ct. 375 (1993). The Supreme Court's mandate states the following: "The judgment is vacated and the case is remanded to the United States Court of Appeals for the Third Circuit for further consideration in light of the position asserted by the Solicitor General in his brief for the United States filed September 17, 1993." Id. Our charge on remand is to further ...