United States v. Gendron
This text of United States v. Gendron (United States v. Gendron) is published on Counsel Stack Legal Research, covering Court of Appeals for the First 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. Gendron, (1st Cir. 1994).
Opinion
USCA1 Opinion
March 2, 1994
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-2003
UNITED STATES,
Appellee,
v.
DANIEL A. GENDRON,
Defendant, Appellant.
_____________________
ERRATA SHEET
Please make the following correction in the opinion in
the above case released on February 28, 1994:
Appendix, Page 44, line 4: insert the word "suspected"
before the word "child".
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-2003
UNITED STATES,
Appellee,
v.
DANIEL A. GENDRON,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Jose Antonio Fuste,* U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Boudin, Circuit Judge,
_____________
Pollak,** Senior District Judge.
_____________________
____________________
Jonathan S. Sales, by Appointment of the Court, with whom The Law
_________________ _______
Office of William P. Homans, Jr. was on brief for appellant.
________________________________
Robert E. Richardson with whom A. John Pappalardo, United States
____________________ __________________
Attorney, and James F. Lang, Assistant United States Attorney, were on
_____________
brief for appellee.
____________________
February 28, 1994
____________________
_____________________
* Of the District of Puerto Rico, sitting by designation.
** Of the Eastern District of Pennsylvania, sitting by designation.
BREYER, Chief Judge. Daniel Gendron ordered and
____________
received a videotape that contained child pornography.
Though he did not know it, the firm that sent him the tape
was part of a law enforcement operation designed to catch
child pornography buyers. A jury subsequently convicted
Gendron of knowingly receiving child pornography through the
mails. 18 U.S.C. 2252(a)(2). He now appeals that
conviction, claiming that the child pornography statute is
unconstitutional, that the government unlawfully entrapped
him, and that the government's search warrant (for the tape
in his house) was constitutionally defective. After
considering these and other related claims, we affirm the
conviction.
I
The Statute's Constitutionality
_______________________________
The child pornography statute reads as follows:
(a) Any person who --
______________
. . .
(2) knowingly receives, or distributes,
__________________
any visual depiction that has been
________________________________________
mailed, or has been shipped or
______
transported in interstate or foreign
______________
commerce, or which contains materials
________
which have been mailed or so shipped or
transported, by any means including by
computer, or knowingly reproduces any
visual depiction for distribution in
interstate or foreign commerce by any
-3-
3
means including by computer or through
the mails, if --
__
(A) the producing of such visual
______________________________
depiction involves the use of a
___________________________________
minor engaging in sexually explicit
___________________________________
conduct; and
____________
(B) such visual depiction is of
______________________________
such conduct;
_____________
. . .
shall be punished as provided in subsection
_________________
(b) . . . .
18 U.S.C. 2252(a)(2) (emphasis added). Gendron points out
that the Ninth Circuit has interpreted this statute as
permitting a conviction of a person who does not know the
______________
child-pornographic nature of the material received, and, for
______
that reason, has found it unconstitutional. See United
___ ______
States v. X-Citement Video, 982 F.2d 1285 (9th Cir. 1992),
______ _________________
petition for cert. filed, 62 U.S.L.W. 3360 (1993). He says
________________________
we should do the same.
Free access — add to your briefcase to read the full text and ask questions with AI
USCA1 Opinion
March 2, 1994
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-2003
UNITED STATES,
Appellee,
v.
DANIEL A. GENDRON,
Defendant, Appellant.
_____________________
ERRATA SHEET
Please make the following correction in the opinion in
the above case released on February 28, 1994:
Appendix, Page 44, line 4: insert the word "suspected"
before the word "child".
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-2003
UNITED STATES,
Appellee,
v.
DANIEL A. GENDRON,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Jose Antonio Fuste,* U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Boudin, Circuit Judge,
_____________
Pollak,** Senior District Judge.
_____________________
____________________
Jonathan S. Sales, by Appointment of the Court, with whom The Law
_________________ _______
Office of William P. Homans, Jr. was on brief for appellant.
________________________________
Robert E. Richardson with whom A. John Pappalardo, United States
____________________ __________________
Attorney, and James F. Lang, Assistant United States Attorney, were on
_____________
brief for appellee.
____________________
February 28, 1994
____________________
_____________________
* Of the District of Puerto Rico, sitting by designation.
** Of the Eastern District of Pennsylvania, sitting by designation.
BREYER, Chief Judge. Daniel Gendron ordered and
____________
received a videotape that contained child pornography.
Though he did not know it, the firm that sent him the tape
was part of a law enforcement operation designed to catch
child pornography buyers. A jury subsequently convicted
Gendron of knowingly receiving child pornography through the
mails. 18 U.S.C. 2252(a)(2). He now appeals that
conviction, claiming that the child pornography statute is
unconstitutional, that the government unlawfully entrapped
him, and that the government's search warrant (for the tape
in his house) was constitutionally defective. After
considering these and other related claims, we affirm the
conviction.
I
The Statute's Constitutionality
_______________________________
The child pornography statute reads as follows:
(a) Any person who --
______________
. . .
(2) knowingly receives, or distributes,
__________________
any visual depiction that has been
________________________________________
mailed, or has been shipped or
______
transported in interstate or foreign
______________
commerce, or which contains materials
________
which have been mailed or so shipped or
transported, by any means including by
computer, or knowingly reproduces any
visual depiction for distribution in
interstate or foreign commerce by any
-3-
3
means including by computer or through
the mails, if --
__
(A) the producing of such visual
______________________________
depiction involves the use of a
___________________________________
minor engaging in sexually explicit
___________________________________
conduct; and
____________
(B) such visual depiction is of
______________________________
such conduct;
_____________
. . .
shall be punished as provided in subsection
_________________
(b) . . . .
18 U.S.C. 2252(a)(2) (emphasis added). Gendron points out
that the Ninth Circuit has interpreted this statute as
permitting a conviction of a person who does not know the
______________
child-pornographic nature of the material received, and, for
______
that reason, has found it unconstitutional. See United
___ ______
States v. X-Citement Video, 982 F.2d 1285 (9th Cir. 1992),
______ _________________
petition for cert. filed, 62 U.S.L.W. 3360 (1993). He says
________________________
we should do the same.
The Ninth Circuit, in United States v. Thomas, 893
_____________ ______
F.2d 1066 (9th Cir.), cert. denied, 498 U.S. 826 (1990),
_____________
considered the scope of the statute's word "knowingly." It
held that "knowingly" modifies only the statute's word
"receives" (or "reproduces"), not its subclause (A) or (B).
Consequently, it "does not require" that a defendant "knew
that the pornography he . . . received involved a minor."
-4-
4
Id. at 1070. Two years later, in X-Citement Video, the
___ _________________
Ninth Circuit pointed out that the statute, as so
interpreted, would permit conviction of a person who
"knowingly receives" a video, but does not know that the
______________
video contains child pornography. Because that
interpretation would permit conviction of a person with an
innocent state of mind, the court found the statute
unconstitutional. X-Citement Video, 982 F.2d at 1292; see
_________________ ___
New York v. Ferber, 458 U.S. 747, 765 (1982) (child
_________ ______
pornography statutes must involve "some element of scienter"
to pass constitutional muster).
We do not accept the Ninth Circuit's conclusion
that the statute is unconstitutional, however, because we do
not agree with the statutory premise set forth in Thomas.
______
In our view, and in the view of all courts to have
considered the matter since the X-Citement Video decision,
_________________
see United States v. Edwards, No. 92-CR-884, 1993 WL 453461
___ ______________ _______
(N.D. Ill. Nov. 4, 1993); United States v. Long, 831 F.
_____________ ____
Supp. 582 (W.D. Ky. 1993); United States v. Kempton, 826 F.
_____________ _______
Supp. 386 (D. Kan. 1993); United States v. Prytz, 822 F.
_____________ _____
Supp. 311 (D.S.C. 1993), the statute's word "knowingly"
modifies not only the word "receives," but also the
statute's description of the "receive[d]" material's
-5-
5
pornographic content. That is to say, we understand the
statute to require for conviction that the government prove
not only that the defendant "knowingly receive[d]" material
that he knows contains a "visual depiction" of a person
"engaging in sexually explicit conduct," but also that the
defendant knows that the person so depicted is a minor.
Accord Edwards, 1993 WL 453461 at *5; Long, 831 F. Supp. at
______ _______ ____
586; Kempton, 826 F. Supp. at 389; Prytz, 822 F. Supp. at
_______ _____
321.
We concede that one cannot know automatically,
simply from the position of the words in the sentence, just
______________________________________________________
which of the words following "knowingly" the word
"knowingly" is meant to modify. However, that linguistic
fact simply reflects the more basic fact that statements,
and parts of statements, quite often derive their meaning
from context. The sentence "John knows that people speak
Spanish in Tegucigalpa, which is the capital of Honduras,"
taken by itself, leaves us uncertain whether or not John
knows that Tegucigalpa is the capital of Honduras; but, the
context of the story in which the sentence appears, a
context that includes other sentences, may clear up our
uncertainty and leave us with no doubt at all.
-6-
6
Similarly, when courts interpret criminal
statutes, they draw upon context, including the statute's
purpose and various background legal principles, to
determine which states of mind accompany which particular
elements of the offense. Thus, courts normally hold that
the prosecutor need not prove the defendant's state of mind
in respect to "jurisdictional facts" (for example, that an
assault victim was a federal officer, or that stolen checks
_______
moved in the mail), whatever the mental state required for
___________
the crime's other elements. E.g., United States v. Feola,
____ _____________ _____
420 U.S. 671, 676-86 (1975); Barnes v. United States, 412
______ ______________
U.S. 837, 847 (1973); United States v. Blassingame, 427 F.2d
_____________ ___________
329, 330 (2d Cir. 1970), cert. denied, 402 U.S. 945 (1971);
____________
see generally S. Rep. No. 307, 97th Cong., 1st Sess. 72-74
_____________
(1981). Context (what ordinarily counts as bad behavior;
the reason why Congress mentions jurisdictional facts;
etc.), in addition to the position of words in a sentence,
helps a court decide how, and when, to interpret statutes as
incorporating states of mind. See, e.g., Blassingame, 427
___ ____ ___________
F.2d at 330.
The background context here includes the fact
that, when a criminal statute is totally silent about state
of mind (as is commonly the case), courts nonetheless assume
-7-
7
that Congress intended to require some kind of guilty
knowledge with respect to major wrong-creating elements of
major crimes. Liparota v. United States, 471 U.S. 419, 426
________ _____________
(1985) (courts should not read criminal statutes as
"requiring no mens rea"); United States v. United States
________ _____________ ______________
Gypsum Co., 438 U.S. 422, 438 (1978) (in criminal statutes,
__________
"far more than the simple omission of the appropriate phrase
from the statutory definition is necessary to justify
dispensing with an intent requirement"); Morissette v.
__________
United States, 342 U.S. 246, 255-56, 263 (1952).
_____________
Thus, had the word "knowingly" not appeared at all
in the child pornography statute, courts (while not
insisting upon "knowledge" of the "interstate commerce"
element of the offense, see supra pp. 5-6) would have
___ _____
insisted nonetheless that prosecutors prove a guilty state
of mind in respect to the nature of the material. For one
thing, the fact that the material shows a child engaging in
sexually explicit activity is not a secondary, or
jurisdictional, aspect of the crime. It is the moral and
criminal heart of the matter. For another thing, without
such a requirement, the statute would severely punish purely
innocent conduct. It would reach, for example, a post
office employee who "knowingly distributes" mail but knows
-8-
8
nothing of its contents, or a film developer who for some
reason returns an undeveloped roll of film to a customer.
Congress could not have intended these results. Pp. 8-12,
infra; see United States v. Turkette, 452 U.S. 576, 580
_____ ___ ______________ ________
(1981) (courts must construe statutes to avoid absurd
results); United States v. Ferryman, 897 F.2d 584, 589 (1st
_____________ ________
Cir. 1990) (same). Finally, as X-Citement Video itself
________________
demonstrates, to read this criminal statute as "requiring no
mens rea" (contrary to Liparota, 471 U.S. at 426) likely
________ ________
makes it unconstitutional. See New York v. Ferber, 458 U.S.
___ ________ ______
747, 765 (1982) (criminalization of child pornography must
involve "some element of scienter on the part of the
defendant"); see also Osborne v. Ohio, 495 U.S. 103, 113
_________ _______ ____
n.9, 115 (1990) (same; "recklessness" suffices). Such an
interpretation therefore violates courts' duty to interpret
federal statutes so that they are consistent with the
federal Constitution whenever possible. E.g., Edward J.
____ _________
DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades
_______________ _________________________________________
Council, 485 U.S. 568, 575 (1988).
_______
If we would interpret a silent statute as imposing
______
a guilty state of mind requirement, how could Congress's
explicit use of the word "knowingly" eliminate it? It seems
far more likely that Congress used the word "knowingly" to
-9-
9
make clear that it did intend to insist that a defendant
___
know the child-pornographic nature of the material. The
legislative history confirms this view. For example,
Senator Roth, the author of the amendment which extended the
original bill to distribution as well as production, was
asked whether the amendment meant that
the distributor or seller must have
[either] actual knowledge that the
materials do contain child pornographic
depictions, or [that] he should have had
such actual knowledge.
He responded:
That is absolutely correct. This
amendment, limited as it is by the
phrase "knowingly," insures that only
____
those sellers and distributors who are
consciously and deliberately engaged in
________________________________________
the marketing of child pornography and
____________________________________
thereby are actively contributing to the
maintenance of this form of child abuse
are subject to prosecution under this
amendment.
123 Cong. Rec. 33,050 (1977) (emphasis added). The language
to which Senator Roth referred found its way into the final
law (with minor stylistic changes). Compare 123 Cong. Rec.
_______
33,061 (1977) (Senate bill with Roth amendment) with Pub. L.
____
No. 95-225, 2(a), 92 Stat. 7, 7-8 (1978) (final version).
Furthermore, the Department of Justice wrote
Congress a letter in which it told Congress that the
-10-
10
use of the word "knowingly" in
subsection 2252(a)(1) is appropriate to
make it clear that the bill does not
___________________
apply to . . . innocent transporters who
________ _________________________
have no knowledge of the nature or
________________________________________
character of the material they are
_____________________________
transporting.
S. Rep. No. 438, 95th Cong., 2d Sess. 29 (1978), reprinted
_________
in 1978 U.S.C.C.A.N. 40, 64 (emphasis added) [hereinafter
__
"Report"]. Thus, the Department and the amendment's author
agreed that the point of the statute's explicit use of the
word "knowingly" lies in the application of that word to the
nature of the material's contents, not to the nature of its
________
distribution or receipt.
It is true that the Department also said, in a
different context,
We assume that it was not the intention
__________________
of the drafters to require the
Government to prove that the defendant
_________ _____________
knew the child was under age sixteen but
____________________________________
merely to prove that the child was, in
fact, less than age sixteen.
Id., 1978 U.S.C.C.A.N. at 64 (emphasis added). In saying
___
this, however, the Department was referring to a different
_________
statutory provision -- one that penalized production, not
__________
distribution. And Congress responded by dropping the word
"knowingly" from the production section of the statute, but
not from the distribution section. H.R. Conf. Rep. No. 811,
___
95th Cong., 2d Sess. 5, reprinted in 1978 U.S.C.C.A.N. 69,
____________
-11-
11
69; compare Pub. L. No. 95-225, 2251(a), 92 Stat. 7, 7
_______
(1978) (knowledge not required in production prosecution)
with id. 2252(a), 92 Stat. at 7-8 (knowledge required in
____ ___
distribution or receipt prosecution).
Finally, we concede that at one point the
Department's letter suggests that there be no knowledge
requirement with respect to age, even for distribution
prosecutions. It said,
To clarify the situation, the
legislative history might reflect that
the defendant's knowledge of the age of
________________________
the child is not an element of the
________________________________
offense, but that the bill is not
___
intended to apply to innocent
_______________________
transportation with no knowledge of the
____________________
nature or character of the material
_____________________
involved.
Report, supra, at 29, 1978 U.S.C.C.A.N. at 64 (emphasis
_____
added). We have found nothing in the statute or the
legislative history, however, to suggest that Congress
adopted this recommendation. To the contrary, the
legislative history reveals congressional awareness of the
important constitutional differences between adult and child
pornography, the likely constitutional significance of age,
and the concomitant constitutional need for a guilty state
of mind requirement with respect to age. See, e.g., 123
___ ____
Cong. Rec. 33,048 (1977) (statement of Sen. Goldwater); id.
___
-12-
12
at 33,051 (statement of Sen. Hatch). In light of this
background, we conclude that the statute's word "knowingly"
applies to age as well as to conduct. That being so, we
find no constitutional obstacle to application of the
statute in the case before us. (We note that while this
opinion was circulating in draft form among the members of
this panel, another panel of this court reached the same
conclusion. See United States v. Gifford, No. 93-1645, slip
___ _____________ _______
op. at 20-23 (1st Cir. Feb. __, 1994).)
II
Entrapment
__________
The evidence in this case demonstrated rather
convincingly that Gendron ordered and received a videotape
that he knew contained child pornography. Consequently,
Gendron's strongest evidence-based claim does not deny his
having engaged in conduct that violates the statute.
Rather, he argues that the evidence shows the government
"entrapped" him into doing so. Gendron notes that the
entrapment defense has two parts: (1) the government's
"inducement" of criminal behavior; (2) by a defendant who
was not "predisposed" to commit the crime. See, e.g.,
___ ____
United States v. Rodriguez, 858 F.2d 809, 812-15 (1st Cir.
_____________ _________
1988) (setting forth elements of entrapment and relevant
-13-
13
evidentiary burdens). Although the court submitted the
entrapment issue to the jury, which found against Gendron,
he argues that the evidence did not support the jury's
verdict. He says that it did not allow the government to
rebut his claim of "inducement," nor was it sufficient to
show (beyond a reasonable doubt) his "predisposition" to
commit the crime. Consequently, he says, particularly in
light of a recent Supreme Court case that accepted rather
similar arguments, Jacobson v. United States, 112 S. Ct.
________ _____________
1535 (1992), the law requires a judgment of acquittal.
It may help in evaluating Gendron's argument if we
set forth in simplified terms our understanding of the
entrapment defense and its elements. (For more
comprehensive accounts, see, e.g., Rodriguez, supra; S. Rep.
_________ _____
No. 307, 97th Cong., 1st Sess. 118-30 (1981); LaFave &
Scott, Substantive Criminal Law 5.2 (1986); Louis M.
Seidman, The Supreme Court, Entrapment, and Our Criminal
__________________________________________________
Justice Dilemma, 1981 Sup. Ct. Rev. 111.) The Supreme Court
_______________
has described that defense as resting upon an assumption
that Congress, when enacting criminal statutes, does not
intend the statute to apply to violations arising out of (1)
the government's "abuse" of its crime "detection" and law
_____
"enforcement" efforts by "instigati[ng]" the criminal
-14-
14
behavior and "lur[ing]" to commit the crime (2) persons who
are "otherwise innocent." Sorrells v. United States, 287
__________________ ________ ______________
U.S. 435, 448 (1932) (emphasis added). Consequently, the
entrapment doctrine forbids punishment of an "otherwise
_________
innocent" person whose "alleged offense" is "the product of
________ __________
the creative activity" of government officials. Id. at 451
_____________________ ___
(emphasis added). As the Supreme Court has recently stated,
When the Government's quest for
conviction leads to the apprehension of
an otherwise law-abiding citizen who, if
_____________________________ __
left to his own devices, likely would
_________________________
have never run afoul of the law, the
courts should intervene.
Jacobson, 112 S. Ct. at 1543 (emphasis added). Since the
________
Court has repeatedly expressed concern about both government
____
"abuse" of its enforcement powers (or the like) and the
___
"otherwise law-abiding citizen" (or the like), it is not
surprising that the defense has two parts, one that focuses
upon government "inducement" and the other upon the
defendant's "predisposition."
In describing "inducement," courts have
distinguished between proper and improper law enforcement
activities. It is proper (i.e., not an "inducement") for
the government to use a "sting," at least where it amounts
to providing a defendant with an "opportunity" to commit a
crime. E.g., Sorrells, 287 U.S. at 441; Sherman v. United
____ ________ _______ ______
-15-
15
States, 356 U.S. 369, 372 (1958); United States v. Coady,
______ ______________ _____
809 F.2d 119, 122 (1st Cir. 1987); United States v. Espinal,
_____________ _______
757 F.2d 423, 425 (1st Cir. 1985). Without this kind of law
enforcement weapon, it would often prove difficult, or
impossible, to stop certain seriously criminal activity,
particularly activity involving drugs, or corruption, or
other crimes in which no direct participant wants the crime
detected. See Hampton v. United States, 425 U.S. 484, 495
___ _______ _____________
n.7 (1976) (Powell, J., concurring in judgment); United
______
States v. Bradley, 820 F.2d 3, 6 (1st Cir. 1987).
______ _______
An improper "inducement," however, goes beyond
providing an ordinary "opportunity to commit a crime."
Jacobson, 112 S. Ct. at 1541. An "inducement" consists of
________
an "opportunity" plus something else -- typically, excessive
____
pressure by the government upon the defendant or the
government's taking advantage of an alternative, non-
criminal type of motive. A "sting" that combines an
ordinary opportunity with these extra elements runs the risk
of catching in the law enforcement net not only those who
might well have committed the crime elsewhere (in the
absence of the sting), but also those who (in its absence)
likely would never have done so. Insofar as the net catches
-16-
16
the latter, it stretches beyond its basic law enforcement
purpose.
Some examples of improper "inducement" may help.
Courts have found a basis for sending the entrapment issue
to the jury (or finding entrapment established as a matter
of law) where government officials: (1) used "intimidation"
and "threats" against a defendant's family, United States v.
_____________
Becerra, 992 F.2d 960, 963 (9th Cir. 1993); (2) called every
_______
day, "began threatening" the defendant, and were
belligerent, United States v. Groll, 992 F.2d 755, 759 (7th
_____________ _____
Cir. 1993); (3) engaged in "forceful" solicitation and
"dogged insistence until [defendant] capitulated,"
Rodriguez, 858 F.2d at 815; (4) played upon defendant's
_________
sympathy for informant's common narcotics experience and
withdrawal symptoms, Sherman, 356 U.S. at 373; (5) played
_______
upon sentiment of "one former war buddy . . . for another"
to get liquor (during prohibition), Sorrells, 287 U.S. at
________
440-41; (6) used "repeated suggestions" which succeeded only
when defendant had lost his job and needed money for his
family's food and rent, United States v. Kessee, 992 F.2d
______________ ______
1001, 1003 (9th Cir. 1993); (7) told defendant that she (the
agent) was suicidal and in desperate need of money, United
______
States v. Sullivan, 919 F.2d 1403, 1419 & n.21 (10th Cir.
______ ________
-17-
17
1990). The background and context of each example
illustrate possible government "overreaching" -- of its
having acted unfairly by employing
methods of persuasion or inducement that
create a substantial risk that such an
offense will be committed by persons
other than those who are ready to commit
it.
Model Penal Code 2.13(1)(b).
The second part of the entrapment defense,
"predisposition," is somewhat more difficult to understand.
Some Supreme Court Justices (and the Model Penal Code's
authors) have argued that "predisposition" is not even
relevant. Rather, they thought that the defense should
focus only upon government impropriety, preventing law
enforcement officers from using methods that might lead
ordinary law-abiding citizens astray, whether or not the
particular defendant was "predisposed" to commit the crime.
See, e.g., Model Penal Code 2.13; Sorrells, 287 U.S. at
___ ____ ________
453 (Roberts, J., joined by Brandeis & Stone, JJ.,
concurring) (arguing for this "objective" view of the
defense); Sherman, 356 U.S. at 378 (Frankfurter, J., joined
_______
by Douglas, Harlan & Brennan, JJ., concurring) (same). The
Supreme Court itself, however, has rejected this view. It
saw in the entrapment defense not so much a sanction used to
-18-
18
control police conduct, but rather a protection of the
ordinary law-abiding citizen against government
overreaching. Consequently, it saw no need to permit a
defendant to take advantage of that defense unless he
himself was such a citizen. See, e.g., Sorrells, 287 U.S.
___ ____ ________
at 448; Sherman, 356 U.S. at 376-77; United States v.
_______ ______________
Russell, 411 U.S. 423, 433-35 (1973). The upshot is that we
_______
must find out just who that "innocent person" is. Who is
the "otherwise law-abiding citizen" who would not
_________
"otherwise" have committed the crime?
The question's difficulty lies in the word
"otherwise." That word requires us to abstract from present
circumstances. We cannot simply ask whether, without the
government's present activity, the defendant would likely
have committed the crime when he did. After all, without
____
the government's having presented that opportunity, the
____
defendant, no matter how "predisposed," would likely not
have acted then. Nor can we simply ask whether the
____
defendant would have acted similarly at some other time had
___
he faced similar circumstances, since his present behavior
_______________________________
virtually compels an affirmative answer to the question
phrased in this way.
-19-
19
The right way to ask the question, it seems to us,
is to abstract from -- to assume away -- the present
circumstances insofar as they reveal government
___________________________________________
overreaching. That is to say, we should ask how the
____________
defendant likely would have reacted to an ordinary
________
opportunity to commit the crime. See Jacobson, 112 S. Ct.
___ ________
at 1540 n.2. By using the word "ordinary," we mean an
opportunity that lacked those special features of the
government's conduct that made of it an "inducement," or an
"overreaching." Was the defendant "predisposed" to respond
affirmatively to a proper, not to an improper, lure?
______ ________
This way of looking at the matter seems to flow
from the way in which the Supreme Court has resolved the
clash between "objective" and "subjective" views of
entrapment -- at least if one looks at that resolution as
simply denying the defense to one whom it is not designed to
help, namely the kind of defendant who (without a "sting")
might well be out committing crimes of the sort that a
"sting" seeks to stop. See Russell, 411 U.S. at 434.
___ _______
Further, our effort to define "predisposition" through
reference to the nature of the government conduct reflects
the fact that, despite partial descriptions that focus
primarily upon the defendant's state of mind, government
__________
-20-
20
misconduct lies at the heart of the entrapment defense.
Were that not so -- were the issue simply the defendant's
state of mind -- the law would permit an innocent minded
defendant to raise an entrapment claim when a private person
_______
"induced" him (through similar "overreaching" conduct) to
commit a crime. But the law does not authorize the defense
in those circumstances, however "outrageous" the private
person's conduct. E.g., Russell, 411 U.S. at 433; United
____ _______ ______
States v. Jones, 950 F.2d 1309 (7th Cir. 1991); United
______ _____ ______
States v. Bradley, 820 F.2d 3, 6 (1st Cir. 1987); United
______ _______ ______
States v. Emmert, 829 F.2d 805 (9th Cir. 1987); United
______ ______ ______
States v. McLernon, 746 F.2d 1098 (6th Cir. 1984); Whiting
______ ________ _______
v. United States, 321 F.2d 72, 76 (1st Cir. 1963).
_____________
Finally, this way of phrasing the question
prevents one from concluding automatically, simply from the
fact that the defendant committed the crime, that he was
"predisposed" to commit it. At the same time, if the answer
to the question so phrased is affirmative, the defendant
would seem to be the sort of person (and his conduct in this
instance is the sort of conduct) that the criminal statute
intends to punish. He is, in other words, someone who would
likely commit the crime under the circumstances and for the
reasons normally associated with that crime, and who
-21-
21
therefore poses the sort of threat to society that the
statute seeks to control, and which the government, through
the "sting," seeks to stop.
We turn now to Jacobson v. United States, the
________ _____________
recent child pornography case where the Supreme Court found
entrapment as a matter of law, and upon which Gendron
heavily relies. Government agents found Jacobson's name on
a bookstore mailing list that indicated that the store had
mailed photos of naked children to Jacobson. Government
agents then sent Jacobson letters from fictitious people and
organizations, soliciting orders for child pornography. In
three respects, however, they did more than provide an
ordinary opportunity to buy child pornography: First, the
solicitations reflected a psychologically "graduated" set of
responses to Jacobson's own noncriminal responses, beginning
with innocent lures and progressing to frank offers. The
government started with a "sexual attitude questionnaire,"
which elicited a general interest in "pre-teen sex"; it
followed with letters containing general, nonexplicit
references implying a possibility of child pornography; it
then sent Jacobson more personal correspondence; and,
finally (but after Jacobson had discontinued the
correspondence), it sent him child pornography catalogues.
-22-
22
112 S. Ct. at 1538-39. Second, the government's soliciting
letters sometimes depicted their senders as "free speech"
lobbying organizations and fighters for the "right to read
what we desire"; they asked Jacobson to "fight against
censorship and the infringement of individual rights." Id.
___
at 1538, 1542. Third, the government's effort to provide an
"opportunity" to buy child pornography stretched out over
two and a half years. Taken together, one might find in
these three sets of circumstances -- the graduated response,
the long time period, the appeal to a proper (free speech)
motive -- a substantial risk of inducing an ordinary law-
abiding person to commit the crime. Indeed, the government
conceded in Jacobson that its methods amounted, for
________
entrapment purposes, to an improper "inducement." Id. at
___
1540 n.2.
Jacobson's importance, however, concerns the
________
"predisposition" part of the entrapment defense. The Court
held that the evidence, as a matter of law, required
acquittal because a reasonable jury would have had to doubt
Jacobson's predisposition. The evidence of predisposition
consisted of two facts: (1) that before the government
became involved Jacobson was on a private bookstore's
mailing list for dubious photos; and (2) that he responded
-23-
23
affirmatively to the government's solicitations. The first
fact, the Court wrote, showed little about a predisposition
to act unlawfully because ordering the photos was lawful at
__
the time. 112 S. Ct. at 1542. The second, placing orders,
could not show how Jacobson would have acted had the
solicitation lacked the three elements we just mentioned,
namely, the improper appeals to anti-censorship motives, the
graduated response, and the lengthy time frame. Id. at
___
1542-43. The government therefore failed to show
"predisposition" (beyond a reasonable doubt). That means
(as we understand it) that the government's evidence did not
show how Jacobson would have acted had he been faced with an
ordinary "opportunity" to commit the crime rather than a
special "inducement."
Gendron's case is similar to Jacobson's in two
respects. The government initially found Gendron's name on
a "naked children" mailing list, and the government sent him
child pornography solicitations over a fairly long period of
time (one of the "sham" companies was also involved in
Jacobson). There are, however, two critical differences.
________
First, any governmental "overreaching" here was
less extensive than in Jacobson. The government neither
________
"graduated" its responses (from innocent lure to frank
-24-
24
offer) nor, with one exception, did it appeal to any motive
other than the desire to see child pornography. The
exception consists of one solicitation (also present in
Jacobson) in which the government's sham company referred to
________
"hysterical nonsense" about pornography, and asked why the
government was "spending millions of dollars to exercise
international censorship while tons of drugs" enter the
country "easily." Nonetheless, here the government did not
disguise itself as a "sexual rights" lobbying organization,
seeking to lobby Congress to remove restraints and funding
its efforts through pornographic catalogue sales. Nor did
the government ask Gendron to commit the crime as a matter
of principle. See 112 S. Ct. at 1538-39, 1542. Since the
___
"overreaching" here was far less extensive than in Jacobson,
________
there is less reason to believe that government
"overreaching" (i.e., an improper "inducement") could lead
an "otherwise innocent" person to commit the crime. See
___
Gifford, No. 93-1645, slip op. at 15-16.
_______
Second, the record contains substantial evidence
of Gendron's state of mind; that evidence permits the
conclusion that (inducement or not) he was "predisposed" to
commit the crime. In late 1986, when Gendron first received
a verbally explicit "child pornography" catalogue from the
-25-
25
government's sham company, he placed an order accompanied by
a letter in which he said,
I have finally found the kind of
educational material I've been dreaming
of possessing for quite some time. I .
. . [am so] excited that I have decided
to order two of your titles . . . .
The government did not fill the order, but three years later
Gendron responded to a letter from another sham, a pretend
foreign company, which spoke of "hard to obtain erotica."
He wrote,
I am very interested in the other part
of your services that are very difficult
to obtain in my country. . . . I am
becoming very bored with adult
pornography . . . . I like very young
girls only and color videos. Can you
help me.
The sham firm responded with an explicit child pornography
catalogue, and Gendron ordered several of the titles.
(Again the government did not fill the order.) A few months
later the government sent Gendron a third explicit child
pornography catalogue. Gendron sent back an order and a
check. Two months later, he wrote again, asking if the firm
had "forgotten" his order, making clear that he still wanted
"this type of educational materials," stating, "don't worry,
I am not connected in any way with law enforcement," and
adding "Please Hurry." (This time the government filled the
-26-
26
order with the video that led to this prosecution.) Unlike
Jacobson's correspondence, Gendron's correspondence reveals
only a desire to view child pornography; it contains nothing
like Jacobson's urging of a "counter attack" against those
"who are determined to curtail our freedoms." 112 S. Ct. at
1538. (See Appendix for a detailed chronology of the events
in Gendron's case.)
This evidence, taken together, reveals a defendant
who met an initial opportunity to buy child pornography with
enthusiasm, who responded to each further government
initiative with a purchase order, and who, unlike Jacobson,
showed no particular interest in an anti-censorship
campaign. This evidence, as we have said, permits a jury to
find (beyond a reasonable doubt) that Gendron would have
responded affirmatively to the most ordinary of
opportunities, and, hence, was "predisposed" to commit the
crime. We therefore find the jury's entrapment decision
lawful.
III
Search and Seizure
__________________
Government agents searched Gendron's house, and
seized the primary piece of evidence (the videotape),
-27-
27
pursuant to a warrant. That warrant authorized (1) a search
of
the residence of Daniel A. Gendron, 105
Winthrop Street, Rehoboth, Massachusetts
02769;
for (2) a "VHS videocassette labeled PTL (1)" and related
items; (3) "after delivery by mail to and receipt by Daniel
________________________________________________
Gendron" of a specifically described parcel (containing the
_______
tape) until the expiration of the warrant (ten days after
its issuance). Gendron concedes that the warrant meets the
Constitution's two basic requirements: its issuance was
supported by "probable cause" to believe that evidence of
criminal activity would exist in his house after the
delivery of the tape; and it "particularly describ[es] the
place to be searched, and the . . . things to be seized."
U.S. Const. amend. IV. He claims that it is nonetheless
invalid because it is an "anticipatory warrant" which fails
adequately to specify the time at which it will take effect.
____
Gendron cites in support a recent case decided by a
different panel of this court, United States v.
_______________
Ricciardelli, 998 F.2d 8 (1st Cir. 1993).
____________
In general, the simple fact that a warrant is
"anticipatory" -- i.e., that it takes effect, not upon
issuance, but at a specified future time -- does not
-28-
28
invalidate a warrant or make it somehow suspect or legally
disfavored. Warrants often do specify that they will take
effect upon issuance. But the Constitution imposes no such
requirement. Rather, it says that a search must not be
"unreasonable," and that warrants must be supported by
"probable cause." U.S. Const. amend. IV. There is nothing
unreasonable about authorizing a search for tomorrow, not
today, when reliable information indicates that, say, the
marijuana will reach the house, not now, but then. Nor does
it seem automatically unreasonable to tie the warrant's
search authority to the future event that brings with it the
probable cause (e.g., the time of "delivery of a large brown
package addressed to X with return address Y").
Ricciardelli, 998 F.2d at 10-11. In principle, the use of a
____________
"triggering event" can help assure that the search takes
place only when justified by "probable cause"; and
____
anticipatory warrants may thereby offer greater, not lesser,
protection against unreasonable invasion of a citizen's
privacy. As one commentator has put it,
as a general proposition the facts put
forward to justify issuance of an
anticipatory warrant are more likely to
establish that probable cause will exist
at the time of the search than the
typical warrant based solely upon the
known prior location of the items to be
searched at the place to be searched.
-29-
29
2 Wayne R. LaFave, Search and Seizure 3.7(c), at 97 (2d
ed.
1987). Were "anticipatory warrants" unlawful, law
enforcement agents would have to wait until the triggering
event occurred; then, if time did not permit a warrant
application, they would have to forego a legitimate search,
or, more likely, simply conduct the search (justified by
"exigent circumstances") without any warrant at all. See
___
Vale v. Louisiana, 399 U.S. 30, 34-35 (1970); 2 LaFave,
____ _________
supra, 6.5. We are not surprised that courts have found
_____
"anticipatory warrants," considered as a class, perfectly
consistent with the Constitution. E.g., Ricciardelli, 998
____ ____________
F.2d at 10-11; United States v. Garcia, 882 F.2d 699, 703
_____________ ______
(2d Cir. 1989); United States v. Goodwin, 854 F.2d 33, 36
_____________ _______
(4th Cir. 1988); United States v. Hale, 784 F.2d 1465, 1468-
_____________ ____
69 (9th Cir. 1986); People v. Glen, 282 N.E.2d 614, 617
______ ____
(N.Y. 1972).
Gendron argues, however, that the warrant's
reference to "delivery by mail to and receipt by Daniel
Gendron" does not describe with sufficient clarity its
"triggering event," i.e., the particular time when it will
take effect. We agree with Gendron that a warrant must
clearly say when it takes effect. We also agree that a
-30-
30
warrant that says it takes effect upon the occurrence of a
future event runs a greater risk of ambiguity than a warrant
that refers only to a specific day, month, and year (as do
ordinary search warrants). That is why courts have required
that the conditions upon which anticipatory warrants become
effective be "explicit, clear, and narrowly drawn."
Ricciardelli, 998 F.2d at 12 (quoting Garcia, 882 F.2d at
____________ ______
703-04). That said, however, we do not find any fatal flaw
in the warrant's description.
First, the law's requirement with respect to
specificity of time must be one of reasonable specificity.
__________
Glen, 282 N.E.2d at 619 (warrant should require search to be
____
"reasonably contemporaneous" with arrival of contraband); 2
LaFave, supra, 3.7(c), at 99 & n.103 (citing Glen). One
_____ ____
can understand how a specificity requirement in respect to
time, like those in respect to "place to be searched" or
"things to be seized," U.S. Const. amend. IV, might limit
the discretion of law enforcement officers to decide when
and where and what to search, thereby avoiding the "hated
general writs of assistance of pre-Revolutionary times,"
Glen, 282 N.E.2d at 617, and assuring the existence of
____
"probable cause." 2 LaFave, supra, 3.7(c), at 99; id.
_____ ___
4.5, at 207; id. 4.6(a), at 236. But we know of no
___
-31-
31
justification for a stricter standard in respect to
________
specificity of time than in respect to the other two
(constitutionally referenced) search parameters.
Ricciardelli, while stating that the contraband must be on a
____________
"sure and irreversible course" to the place to be searched,
998 F.2d at 13, did not purport to set forth any special new
_______
rule requiring more specificity where time, rather than,
say, place, is at issue. To the contrary, Ricciardelli says
____________
that a warrant's restrictions in respect to time and place
should be "similar." Id. at 12.
___
Second, the law tells us that we are to read
descriptions in warrants (and in their supporting
documents), not "hypertechnical[ly]," but in a "commonsense"
fashion. United States v. Ventresca, 380 U.S. 102, 109
______________ _________
(1965); see also, e.g., United States v. Bianco, 998 F.2d
________ ____ _____________ ______
1112, 1116-17 (2d Cir. 1993); In re Grand Jury Subpoenas,
___________________________
926 F.2d 847, 855 (9th Cir. 1991); United States v. Antone,
_____________ ______
753 F.2d 1301, 1307 (5th Cir. 1985); United States v.
_____________
Charest, 602 F.2d 1015, 1017 (1st Cir. 1979). Read in a
_______
commonsense fashion, the warrant's words seem specific and
clear. Gendron takes the word "receipt," however, from the
phrase "delivery by mail to and receipt by Daniel Gendron,"
and argues that it is fatally ambiguous because it might
-32-
32
mean "receipt" anywhere, say, downtown or at the Post
Office. But, as we have pointed out, see supra pp. 5-6,
___ _____
context helps to provide a word's meaning. The context
includes, at least, the rest of the warrant, which describes
Gendron's house, makes clear that the object of the search
is a video that will arrive at that house by mail, and
mentions "delivery by mail" to that house. Common sense
suggests that the words "receipt by Daniel Gendron" also
refer to receipt at that house, and not to receipt downtown
or at the Post Office, or (to use our own farfetched
example) in Okinawa.
We recognize that it is logically possible to read
the word "receipt" as if it referred to receipt somewhere
other than at Gendron's house. But that logical fact does
not make the word any less specific. The logical fact that
the world undoubtedly contains people named "Daniel Gendron"
other than the defendant here does not mean that the
warrant's triggering event, "delivery by mail to and receipt
by Daniel Gendron," is ambiguous because it does not specify
that the "Daniel Gendron" to whom it refers is the one
residing at the address to be searched. Despite the logical
possibility that the post office might accidentally deliver
the tape to some other Daniel Gendron, thus apparently
-33-
33
fulfilling the literal terms of the warrant, the warrant is
adequately specific as to the person to receive the tape.
Specificity does not lie in writing words that deny all
unintended logical possibilities. Rather, it lies in a
combination of language and context, which together permit
the communication of clear, simple direction. Any effort to
negate all unintended logical possibilities through the
written word alone would produce linguistic complication and
confusion to the point where a warrant, in practice, would
fail to give the clear direction that is its very point.
That is why we must avoid reading a warrant's language
"hypertechnically." See Ventresca, 380 U.S. at 109.
___ _________
Were it not for Ricciardelli, we would end the
____________
discussion here. We must concede, however, that
Ricciardelli found unlawfully ambiguous a warrant with
____________
virtually identical language, namely, language that
triggered the warrant upon
delivery by mail to and receipt by
Steven Ricciardelli of the . . . package
containing the videotape.
998 F.2d at 9. We find a significant difference, however,
in the factual context in which the warrant was issued. The
Ricciardelli panel referred to what it considered a critical
____________
fact:
-34-
34
the (apparently significant) chance that
the package would not be delivered to
Ricciardelli's home at all -- a
possibility that [the postal inspectors]
undeniably had envisioned.
Id. at 17. The opinion also makes clear that the "delivery
___
by mail" was by special delivery with a "return receipt,"
and that the postal inspectors had "contingency plans" in
the event that Ricciardelli received the package somewhere
other than his home. Id. at 9, 17 & n.9. (As it happened,
___
the "letter carrier tried to deliver the package" but
Ricciardelli was not home, so "the postman left a notice"
that he could "collect the item at the post office," and
Ricciardelli, in fact, did pick up the package at the post
office, not at his home. Id. at 9-10.)
___
In light of these background facts, one can
understand why the panel might have thought the word
"receipt," in context, was ambiguous as to where the receipt
might take place. After all, even the highly specific
language in this case describing the item to be seized,
namely "VHS videocassette labeled PTL (1)," could be thought
_____
ambiguous if the background of this case had revealed a
serious possibility of two such items (imagine that Gendron
___
had worked for a firm called "PTL Realty Co." and had taken
home a series of demonstration videos). This is simply to
-35-
35
say that background facts can sometimes turn hypothetical
possibilities, such as receipt in Okinawa or delivery to the
wrong Daniel Gendron, into practical possibilities that, in
context, might mean that one reading a warrant in a
"commonsense" fashion would nonetheless find significant
ambiguity.
Here, however, no background fact created
significant ambiguity. On the contrary, the postal
inspector's affidavit specified that the parcel "will be
placed for routine delivery" to Gendron "through the U.S.
Postal Service, Rehoboth, MA"; that after the parcel "is
delivered by mail and taken into the residence," there will
____________________________
be "probable cause to believe" that evidence of criminal
conduct will be "located" in the house; and that
surveillance will commence from the time
the parcel is placed for delivery [at
the Rehoboth Post Office] and continue
until the parcel has been delivered to
105 Winthrop St., Rehoboth, MA,
with probable cause to search arising only "after the parcel
____
has entered the premises" (emphasis added). Moreover, at
____________________
trial, the postal inspector testified that
if Mr. Gendron was in Florida, we aren't
entitled to search his house or his
parents' house. Once it was delivered
into the house, then the search warrant
______________
became effective.
-36-
36
He added that the house was under surveillance because
it was important to us that if that
piece didn't get delivered, you don't
execute the search warrant.
Tr. at 115-16 (emphasis added). Consequently, unlike
Ricciardelli, nothing in the record here suggests a
____________
background in which the warrant's words, adequately specific
in the context of the warrant, could, as a practical matter,
convey a different meaning.
For these reasons, we distinguish Ricciardelli and
____________
find that it does not control the outcome here. To make
certain that our reading of the case is correct, however, we
have circulated a draft of this opinion to the entire court.
The concurring judge in Ricciardelli, 998 F.2d at 17
____________
(Torruella, J., concurring) believes that his views there
would require a holding in Gendron's favor here. But, a
majority of the court agrees with our reading of
Ricciardelli which distinguishes that case from this one.
____________
See, e.g., United States v. Rivera, 994 F.2d 942, 950-51
___ ____ ______________ ______
(1st Cir. 1993). We therefore do not accept Gendron's
Fourth Amendment claim.
IV
Other Arguments
_______________
-37-
37
Gendron makes three further arguments, none of
which requires extended discussion.
1. Jury Instruction. Gendron argues that the
________________
trial court should have specifically instructed the jury
that it must find he knew the person depicted on the tape
was under the age of 18. Gendron did not ask for this
charge, nor did he object to the instruction the judge gave,
which required the jury to find that he "knew the character
__________________
and nature of the material." Nonetheless, he says that the
___________________________
judge's "error" was "plain." Fed. R. Crim. P. 52(b); see
___
generally Arrieta-Agressot v. United States, 3 F.3d 525, 528
_________ ________________ _____________
(1st Cir. 1993). In context, however, we believe the charge
the judge gave made the point that Gendron now makes. See
___
Estelle v. McGuire, 112 S.Ct. 475, 482 & n.4 (1991) (in
_______ _______
evaluating a jury charge, court should ask "'whether there
is a reasonable likelihood that the jury has applied the
challenged instruction in a way' that violates the
Constitution," in light of "the context of the instructions
as a whole and the trial record") (quoting Boyde v.
_____
California, 494 U.S. 370, 380 (1990)). The jury was fully
__________
aware that the issue was child pornography. The remainder
_____
of the charge referred frequently to children. (Indeed, the
film depicted a nine year old child.) Thus, in all
-38-
38
likelihood, it understood the words "character and nature"
to encompass age as well as explicit sexual acts. Since
Gendron asked for no more and we can find no significant
likelihood of prejudice, there is no plain error. Arrieta-
________
Agressot, 3 F.3d at 528.
________
2. Closing Statement. Gendron points to two
__________________
statements in the prosecutor's closing argument that, he
says, are factually erroneous and significantly prejudicial.
In one instance, the prosecutor described the item that
Gendron had ordered from the private mail order catalogue
(sometime before 1985) as follows:
I think the title of it was Nancy.
Nancy is described as 13, and her
friends from No. 6, and No. 6 is
prepubescence. Two pretty prepubescents
are taught how to become geishas. This
10 year old, Nancy, and her friends, a
10 year old having sex with a 12 year
old a delicate blond at 12, having sex
with her playmate, 7, hide and seek,
combat, rock. What is his interest in
this, ladies and gentlemen? Children.
Female children.
In fact, the record contains the relevant catalogue
descriptions, which read as follows:
E-2 NANCY: 13, and her friends from #6
_________
THROB. An impish 10 year-old, a
delicate blonde of 12, and a fetching 10
with her playmate of 7 hide-and-seek,
tumble, and romp.
J-6 KIMONO I: Two pretty pubescents are
____________
taught how to become geishas. From full
-39-
39
costume and make-up to nudity. Some
censoring.
Gendron's argument centers on the absence of the phrase
"having sex" in the actual descriptions.
In the other instance, the prosecutor described
the pornographic tape that the government sent Gendron as
containing
explicit depictions of a 9 to 11 year
old girl being raped, being sexually
abused, by teenage boys and an adult
male.
In fact, the tape does not contain depictions of forcible
rape (although, as the government points out, its depictions
of a child engaging in sex amount to "statutory rape").
We agree with Gendron that the prosecutor's
statements were wrong and that she should not have made
them. We cannot agree, however, that they entitle Gendron
to a new trial. That is because Gendron did not object to
the statements at the time. Had he done so, we are certain
that the district court would have ordered a correction, and
a correction would have cured any harm by pointing out the
facts. In the absence of an objection, however, we will
normally not order a new trial unless there is a
"substantial chance that absent the error the jury would
have acquitted," or, for some other reason, we fear a
-40-
40
"miscarriage of justice." United States v. Young, 470 U.S.
_____________ _____
1, 15 (1985); Arrieta-Agressot, 3 F.3d at 528. We see no
________________
such miscarriage, nor any significant likelihood of
acquittal, here.
The evidence in this case was strong, perhaps
overwhelming. The jury saw portions of the tape, which
portrays a nine year old girl engaging in sexually explicit
activities with teenage and adult men. Gendron says nothing
to suggest that the tape leaves any doubt about the unlawful
nature of its contents. Thus, in this particular case, we
do not think the single use of the word "rape," forceful as
it is, could have had any significant prejudicial impact on
the jury beyond the impact of the tape itself. The question
of the videotape descriptions, because of their relevance to
the "predisposition" element of Gendron's entrapment
defense, is a little closer. But, as we have described,
supra pp. 24-26, the evidence of predisposition was very
_____
strong. We do not believe the misdescription of the
original mail order would likely have had any practical
effect on the jury's "no entrapment" finding, particularly
because the correct description was admitted into evidence
and available to the jury. In light of the strength of the
government's case ("an important factor in considering the
-41-
41
likely effect of borderline rhetoric," United States v.
______________
Mejia-Lozano, 829 F.2d 268, 274 (1st Cir. 1987)), whether we
____________
consider the two misstatements separately or together, the
"error" they reflect is not "plain."
3. Other Erotica. Gendron argues that the court
_____________
erred in allowing, as evidence of "predisposition," various
"child erotic" (but not illegal) items seized at his home.
He does not seriously argue, however, that the items were
not relevant. See Jacobson, 112 S. Ct. at 1542 (stating
________ ___ ________
that similar material "by itself" was not sufficient to show
predisposition). Rather, he says its usefulness was
outweighed by its tendency to prejudice the jury. Fed. R.
Evid. 403. The balancing at issue, however, is for the
district court, not this court. United States v. Williams,
_____________ ________
985 F.2d 634, 637 (1st Cir. 1993). The court might
reasonably have concluded, in light of the nature of the
basic evidence in the case (the videotape itself), that the
nature of the additional child-erotic material made no
significant prejudicial difference. We find no abuse of
discretion in this determination.
Gendron's additional arguments are without merit.
For the above reasons, the judgment of the
district court is
-42-
42
Affirmed.
________
-43-
43
POLLAK, District Judge (concurring). I concur in
______________
the judgment of the court and in the court's carefully
wrought and illuminating opinion. The opinion addresses,
comprehensively and in painstaking detail, all of the
substantial questions presented. I would add only a few
words.
First. As the court's opinion makes clear,
_____
constitutional difficulties of serious dimension would
attend the child-pornography statute if, in prosecutions for
knowing receipt of a "visual depiction" of "a minor engaged
in sexually explicit conduct," 18 U.S.C. 2252(a)(2), the
phrase "knowingly receives" were not construed as requiring
the government to establish, beyond a reasonable doubt, that
the "visual depiction" was one which the defendant knew to
involve, not just pornography, but child pornography. These
_____
potential constitutional difficulties are obviated by the
court's persuasive demonstration of "congressional awareness
of the important constitutional differences between adult
and child pornography," with the result that, as the court
concludes, the proper reading of what Congress wrote is
"that the statute's word 'knowingly' applies to age as well
as conduct."
-44-
44
In the case at bar, appellant Gendron contends
that the pertinent aspect of the charge given by the trial
court -- namely that the government was required to prove
that Gendron "knew the character and nature of the material"
-- was deficient in that it did not say expressly that the
government had to have proved that Gendron knew that one of
the actors depicted in the videotape was a minor. But, as
the court notes, Gendron did not request such an
instruction. Moreover, as the court shows, it is highly
unlikely that the jury could have failed to understand that
the central focus of the charge was that Gendron was eager
to acquire, and through the government's good offices
ultimately did acquire, a videotape depicting child
_____
pornography. That is to say, in the case at bar the fact
that the trial court did not give the more particularized
charge that appellant did not request cannot realistically
be supposed to have affected the jury's deliberations in a
fashion detrimental to appellant. In future trials under
this statute, defendants will presumably request, and trial
courts will surely give, a more particularized statement of
what "knowingly" comprehends.
Second. The fact that the methods pursued by
______
government agents to offer Gendron a tempting opportunity to
-45-
45
commit a crime were not only successful but have been found
by this court (correctly, in my view) not to have been
unlawful -- i.e., not to have crossed the line into the
forbidden realm of entrapment -- does not, in my judgment,
signify that those methods of enforcing this sort of statute
are something to be proud of.
-46-
46
APPENDIX
Chronology of events in the Gendron case:
________________________________________
November, 1984: Government agents discover
Gendron's name on the mailing list of Milton Midge, a
suspected child pornography distributor. Midge's records
indicate that Gendron had ordered a videotape entitled
"Nancy," whose description reads: "NANCY: 13, and her
_____
friends from #6 THROB. An impish 10 year-old, a delicate
blonde of 12, and a fetching 10 with her playmate of 7 hide-
and-seek, tumble, and romp."
Spring, 1986: Post office initiates an operation
involving the fictitious "Far Eastern Trading Company" and
sends a flier to Gendron (and others) asking those
interested in information about Far Eastern's "youthful
material" to return a coupon with the customer's name,
address, and a signed affirmation that the customer is not a
law enforcement officer interested in "entrapping Far
Eastern Trading Company, its agents or customers."
October 12, 1986: Gendron fills out the coupon
and returns it to Far Eastern. In reply, Far Eastern sends
Gendron a catalogue of materials available for order. Each
-47-
47
item's description clearly indicates that it depicts
sexually explicit activities involving minors.
December 29, 1986: Gendron sends a handwritten
letter to Far Eastern ordering two videotapes. The text of
the letter is:
FROM 12-29-86
Mr. Daniel A. Gendron
[address]
Hi Peter:
I'm very happy to know you and very happy to
know that I have finally found the kind of
educational material I've been dreaming of
possessing for quite some time. I'm sorry to say
I have never had any delightful experiences of
which I find in your catalogue.
I was getting very excited just reading your
material. So excited that I have decided to order
two of your titles in VHS format, LOLITA'S SEX
LESSON 119.95 AND CHILDREN SEX ORGY 129.95 A TOTAL
OF 249.90 PLUS COD CHARGES.
I question why I could only pick two titles.
Also the LOVELY TEENS TITLES had no prices listed.
Do you have any specials on buying in larger
quantities of VHS tapes. I would also like to
know more about whether you have color tapes with
sound and how many minutes long are they. Thank
you.
/s/ Daniel Gendron
The government did not fill the order.
April, 1988: Gendron's name is found on the
mailinglist of N.M.P.C., a pornography distributor in Miami.
-48-
48
October, 1989: A new government sham company,
"Artistes Internationale," sends a flier to Gendron (and
others from the N.M.P.C. mailing list) indicating that it
carried "extremely hard to obtain erotica," but not
specifically mentioning child pornography. The flier asked
those interested in more information to reply by letter.
October 16, 1989: Gendron sends a letter to
Artistes requesting information about child pornography.
The text of the letter is:
Daniel A. Gendron 10/16/89
[address]
Gentlemen
I am a customer of N.M.P.C. 6883 Bird Rd. #
102 Miami, Florida 33155 who has stated that they
have contracted part of you [sic] services that
they can handle in the U.S.A. Well like many
others like me I am very interested in the other
part of your services that are very diffcult [sic]
to obtain in my country.
I am becoming very board [sic] with adult
pornograpy [sic] and have always been interested
in owning something different if you know what I
mean. I am single 41 years of age with low income
as a janitor. I like very young girls only and
color videos. Can you help me. Thank you
/s/ Daniel Gendron
In reply, Artistes sends Gendron a catalogue. Each item's
description clearly indicates that it portrays minors in
sexually explicit activities.
-49-
49
December 18, 1989: Gendron submits an order to
Artistes for four child-pornographic videotapes, along with
a notation reading "Please send more order forms and
materials," and a Christmas card. The order was not filled.
March 17, 1990: Gendron places an order with a
third sham company, "Can American," for two videotapes whose
descriptions clearly indicate their child-pornographic
content.
May 4, 1990: Gendron writes a letter to Can
American complaining about the delay in filling his order.
The text of the letter is:
Gentlemen:
Have you forgotten my order of March 17th.
It is now May 4, 1990. I sent you a good check
for 149.90 to pay for one tape PTL(1) and one mag
LVM(2).
Sufficient time for a check to clear is two
weeks. It has been 7 weeks. If you cannot
deliver as promised then cancel my order and
return my check or if you have already cashed it
send me a refund. Please don't force me to take
other action to get my money back. Don't worry, I
am not connected in any way with law enforcement.
This is the first time I have ever sought to
obtain this type of educational materials [sic].
I wanted it for my small library of video
collections. Please Hurry.
/s/ Dan Gendron
-50-
50
May 16, 1990: Law enforcement officers obtain an
anticipatory search warrant from U.S. Magistrate Joyce
London Alexander, which authorizes a search of Gendron's
house after the Can American tape is delivered to him.
May 18, 1990: The post office delivers the tape
to Gendron. Shortly thereafter, law enforcement officers
execute the search warrant and search Gendron's house,
seizing the Can American tape and various related items.
-51-
51
Related
Morissette v. United States
342 U.S. 246 (Supreme Court, 1952)
Sherman v. United States
356 U.S. 369 (Supreme Court, 1958)
United States v. Ventresca
380 U.S. 102 (Supreme Court, 1965)
Vale v. Louisiana
399 U.S. 30 (Supreme Court, 1970)
United States v. Russell
411 U.S. 423 (Supreme Court, 1973)
United States v. Feola
420 U.S. 671 (Supreme Court, 1975)
Hampton v. United States
425 U.S. 484 (Supreme Court, 1976)
United States v. United States Gypsum Co.
438 U.S. 422 (Supreme Court, 1978)
United States v. Turkette
452 U.S. 576 (Supreme Court, 1981)
New York v. Ferber
458 U.S. 747 (Supreme Court, 1982)
Liparota v. United States
471 U.S. 419 (Supreme Court, 1985)
Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council
485 U.S. 568 (Supreme Court, 1988)
Boyde v. California
494 U.S. 370 (Supreme Court, 1990)
Osborne v. Ohio
495 U.S. 103 (Supreme Court, 1990)
Estelle v. McGuire
502 U.S. 62 (Supreme Court, 1991)
Fujikawa v. PML Securities Co.
510 U.S. 985 (Supreme Court, 1993)
Arrieta-Agressot v. United States
3 F.3d 525 (First Circuit, 1993)
James Whiting v. United States
321 F.2d 72 (First Circuit, 1963)
United States v. Maurice J. Charest
602 F.2d 1015 (First Circuit, 1979)
United States v. Richard Scott McLernon Kido Yaqui, Sherri Louise Farrell, Miguel Angel Carranza, and Marco Antonio Valdez-Cota
746 F.2d 1098 (Sixth Circuit, 1984)
Cite This Page — Counsel Stack
Bluebook (online)
United States v. Gendron, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gendron-ca1-1994.