United States v. David Andersson

803 F.2d 903, 86 A.L.R. Fed. 349, 1986 U.S. App. LEXIS 32351
CourtCourt of Appeals for the Seventh Circuit
DecidedOctober 16, 1986
Docket85-2546
StatusPublished
Cited by16 cases

This text of 803 F.2d 903 (United States v. David Andersson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. David Andersson, 803 F.2d 903, 86 A.L.R. Fed. 349, 1986 U.S. App. LEXIS 32351 (7th Cir. 1986).

Opinions

CUMMINGS, Circuit Judge.

David Andersson was convicted of mailing and conspiring to mail and receive child pornography, violations of 18 U.S.C. §§ 2252(a) and 371. The district court sentenced the defendant to 5 years on Count I (conspiracy) and 7 years on substantive Count II to be served consecutively, along with a $10,000 fine under Count II. Andersson appeals from the conviction arguing (1) § 2252 violates his First Amendment right to possess pornography privately, (2) the trial judge relied on impermissible evidence when imposing sentence, and (3) the 12-year sentence violates the Eighth Amendment.

“Susan’s Video,” a video club, was the meeting place for David Andersson and Robert Ullery. After discovering a mutual interest in child pornography, the two decided to trade pornographic materials. Andersson agreed to put photographs from Ullery’s private collection on videotape in exchange for a copy of the tape for his own use. In July 1984 Ullery mailed a box to Andersson that included magazines, assorted photos, and two blank videotapes. Defendant phoned Ullery to acknowledge receipt of the package on August 10, 1984.

Unknown to Andersson, shortly after that phone call Ullery was arrested and convicted of sexual exploitation of children and child molesting. On September 10, 1984, defendant mailed the finished tapes and materials back to Ullery. That box was opened on November 15, 1984, in the United States Attorney’s office. An additional tape of old “stag” films depicting children (under 10 years) engaging in sexual behavior had been returned to Ullery by Andersson. On November 28, 1984, the United States Attorney’s office taped a phone conversation between Ullery and defendant, with Ullery’s consent. During the conversation, Andersson expressed a desire to copy one of Ullery’s videotapes involving a 14-year-old girl engaging in a variety of [905]*905sexual activities. Other videotape exchange deals were discussed that revealed defendant’s plan to videotape a 13-year-old girl engaging in sexual activity. A federal warrant was issued and Andersson’s home was searched. During an interview with a postal inspector defendant admitted sending the above box to Ullery and receiving 8 to 10 videotapes from Ullery and returning them. The search resulted in the seizure of a large quantity of video equipment and pornographic materials.

Defendant was charged with sexually exploiting children by mailing and conspiring to mail and receive pornographic materials involving the visual depiction of minors engaged in sexual activity. On June 7, 1985, the district court denied defendant’s motion to dismiss, which had alleged that 18 U.S.C. § 2252 violated the First, Fifth, Sixth, and Eighth Amendments. United States v. Andersson, 610 F.Supp. 246 (N.D.Ind.1985). After a two-day trial the jury convicted him on both counts. The district court ordered Andersson detained pending sentencing. At a bond revocation hearing the court received certain exhibits that had been excluded at trial. These included photographs of the defendant and two young girls engaged in sexual activity. Defendant’s motion for post-conviction relief was denied August 19, 1985. The court sentenced defendant on August 30, 1985, to a total of 12 years as well as a $10,000 fine. The sentence was based in part on defendant’s “very reprehensible conduct * * * simply the kind of conduct that should not go on,” referring to the pictures of defendant and the two girls.

Andersson raises three issues on appeal. First he argues that § 2252 violates the First Amendment by restraining private transfers of pornographic materials. Second, he claims that the 12-year sentence is cruel and unusual because it is disproportionate to the crime. Third, he argues that the district court relied on improper evidence when imposing sentence. For the reasons discussed below, we affirm the district court.

I. Constitutionality of § 2252

Andersson argues that the Constitution protects him from prosecution for “receiving pornographic material from his friend and returning it to its owner” (Def.Br. 10). Because the material was for private use only, he contends that his conviction is an “intolerable perversion of Congressional intent and must be overturned.” Id. Andersson contests his conviction on several points. First he seems to claim that Congress never intended that private users would fall under the statute. Second, he argues that because he has a right to possess the materials in his home, he must have a correlative right to obtain those materials.

Andersson was convicted under a 1978 statute designed to protect children from being used as participants in pornographic materials and as prostitutes. Protection of Children Against Sexual Exploitation Act, Pub.L. No. 95-225, 92 Stat. 7 (1978) (codified as amended at 18 U.S.C. §§ 2251-2255). The statute was originally enacted to attack the “highly organized, multimillion dollar industry” of child pornography and child prostitution. S.Rep. No. 95-438, 96th Cong., 2d Sess. 5-6, reprinted in 1978 Code Cong. & Ad.News 40, 42-43. Congress amended the statute in 1984 to delete the “commercial purpose” language from § 2252.1 Child Protection Act of 1984, Pub.L. No. 98-292, 98 Stat. 204 (codified at 18 U.S.C. § 2252).2 The statute, as amend[906]*906ed, prohibits knowingly mailing or receiving in the mail any visual depiction of a minor engaged in sexually explicit conduct. Andersson asserts that Congress did not intend to punish those individuals who use these materials privately.

The language of the statute is unambiguous. It extends to any mailing or receipt of pornographic literature involving children: commercial or non-commercial, public or private. And unfortunately for defendant the legislative history further supports coverage of his activity. United States v. Smith, 795 F.2d 841, 845-846 (9th Cir.1986); United States v. Miller, 776 F.2d 978, 979 (11th Cir.1985); see United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246. Congress certainly meant to extend coverage to those individuals who distributed pedophilic materials without commercial motive when it amended § 2252 in 1984. H.R.Rep. No. 98-536, 98th Cong., 1st Sess. 2, reprinted in 1984 U.S.Code Cong. & Ad.News 492, 493 (“the most important limitation * * * is the ‘commercial purpose’ limitation * * *. Many of the individuals who distribute * * do so by gift or exchange * * * and thus remain outside the coverage of this provision”). Andersson was distributing tapes of children participating in sexual activity to Ullery “by gift or exchange,” just the type of conduct Congress hoped to eliminate.

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Bluebook (online)
803 F.2d 903, 86 A.L.R. Fed. 349, 1986 U.S. App. LEXIS 32351, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-david-andersson-ca7-1986.