United States v. Lee R. Johnson

855 F.2d 299, 1988 U.S. App. LEXIS 11450, 1988 WL 86534

• Court: Court of Appeals for the Sixth Circuit
• Decided: August 23, 1988
• Docket: 86-6192
• Status: Published

Opinions

KRUPANSKY, Circuit Judge.

Defendant-appellant, Dr. Lee R. Johnson (Johnson), appealed following a bench trial in which he was convicted upon one count of transmitting obscene materials through the mails in violation of 18 U.S.C. § 2252, and fifteen counts of receiving obscene materials through the mails in violation of 18 U.S.C. § 1461.

Johnson, an associate professor of history at Memphis State University, is a self-confessed pedophile. Beginning in the mid-1970’s and continuing until October of 1985, Johnson acquired and maintained a sizeable collection of pedophilic materials which included: 100 magazines, 58 books and booklets, 13 reels of film, and numerous drawings. The collection also included advertising brochures that contained sexually explicit photographs of children. Several of the items in the collection remained in the original postmarked envelopes in which they had been received by Johnson from commercial distributors in California, Denmark, Sweden and the Netherlands.

In a letter dated July 29, 1983, Johnson came to the attention of postal inspectors by responding to an advertisement contained in Screw Magazine, placed by Postal Inspector Daniel Mihalko (Mihalko) as part of an undercover investigation involving mail obscenity. The advertisement offered the sale of materials depicting “Youthful Interests,” “Fun Farm,” and “Latin Family Fun.” Johnson’s letter stated:

“I am interested in family fun and young girls. I will buy 8mm films, magazines and photo sets, (Hard core only). I am over the age of 21, and I am not affiliated with or acting for any censorship or law enforcement agency. All material is intended for my personal use.”

Upon receipt of the letter, Mihalko mailed a preprinted order form to Johnson, which he subsequently completed and returned to Mihalko on September 12, 1983.

The investigation of Johnson was thereafter assigned to Postal Inspector Dennis Wichterman (Wichterman).¹ In a letter to Johnson postmarked December 14, 1984, Wichterman adopted the fictitious identity of “Jake Wichoff” who represented a company named “Young Tallent [sic] Enterprises.” Wichterman described the fictitious company as a group of entrepreneurs specializing in “the discovery and circulation of new young talent” and invited Johnson to permit the company to mail additional information. Johnson responded in a letter postmarked December 18, 1984, stating that Wichterman’s fictitious organization “sounds like just what I have been looking for ... and if your material is of good quality, I expect to be one of your best customers.... ” Thereafter, Wichterman requested Johnson to specify his needs. Johnson replied by advising Wichterman that he was interested “in purchasing drawings, photographs or films of young girls engaging in various activities with young men, or with their families.” Johnson also solicited from Wichterman the names of anyone in the Memphis area who could supply him with the desired pedophilic material and requested Wichterman to circulate his name to anyone capable of fulfilling his needs.

In further correspondence, Wichterman cautioned Johnson that “[p]ostal officials and law enforcement are everywhere.... ” Undeterred by Wichterman’s warning, Johnson responded by suggesting that he would be willing to exchange items from his collection of child pornography, with Wichterman or others, in return for similar materials. In addition, Johnson stated that he would “be interested in making personal contacts with families who share my interest.”

At this point, Wichterman changed his identity with Johnson and assumed the fictitious identity of “Daniel” who was held out to be a collector of pedophilic materials and was referred to Johnson by the fictitious “Jake Wicoff.” Johnson responded favorably by letter. In further correspondence, Johnson listed specific magazines and films contained in his collection which he desired to exchange for similar material. Johnson suggested that the two meet in Chattanooga, Tennessee to swap materials because “I don’t want to put anything in the mail,” and requested Wichterman to refer him to someone who would sell him pedophilic materials.

In his next letter, Wichterman listed the titles of several magazines in which he believed Johnson would have interest. In refusing Johnson’s suggestion to meet in Chattanooga, Wichterman stated “I don’t know about you but I can’t afford to travel to meet everybody I’m going to trade with.” In addition, Wichterman suggested that it would be safer for Johnson to rent a post office box instead of using his home address.

Within fourteen days, Johnson wrote to advise Wichterman that he had rented a post office box and that he possessed certain magazines that Wichterman sought. Agreeing with Wichterman’s claim that he could not financially afford to travel every time that he wished to exchange materials, Johnson stated he would travel to Chattanooga because he was “antsy about putting things in the mail.”

Rather than immediately answering Johnson’s letter, Wichterman delayed his next communication for several weeks. In further correspondence with Johnson, Wichterman stated that he had been vacationing in Florida and had reviewed the proposed exchange of pedophilic materials. Wichterman also related a fictitious expectation of a sexual liason with a young girl named “Julie” with whom he had recently become acquainted. In a reply dated June 23, 1985, Johnson stated “I was glad to hear that you were only in Florida [because] I was beginning to think that something was wrong.” In response to Wicht-erman’s . ficticious pursuits with “Julie,” Johnson wrote

“I’d like to make personal contact, but with the heat on the way it is I don’t dare to try here, and don’t know how to go about making contact elsewhere. (We have no children ourselves).”

Further, Johnson cautioned Wichterman that the child might “blow the whistle[.]” Lastly, Johnson reiterated his desire to expand the size of his collection by either purchasing or trading pedophilic materials, and again requested Wichterman to refer him to someone who would be willing to sell him child pornography.

In his following letter dated July 7, 1985, Wichterman described a video tape of a couple and their eight year old child that he hoped to obtain from a collector in Michigan. Wichterman also stated “[A]s far as magazines, yes, I would love to borrow some to photograph and enjoy.” Wichter-man also indicated that he was in the process of creating a video tape of certain magazines he possessed containing sexually explicit photography of children and inquired whether Johnson would be interested in contributing any material. At no time did Wichterman direct Johnson to use the mails to transmit the magazines requested.

Shortly thereafter, on July 18, 1985, Wichterman received a plain brown paper package that contained three magazines of sexually explicit photographs of children. The package listed Johnson’s post office box as a return address.

Wichterman posted a letter to Johnson wherein he acknowledged receipt of the package, and suggested that he would personally visit Johnson in Memphis during September of 1985. In response to Wicht-erman’s statement that he had received the package, Johnson wrote

“I’m glad you got the materials I sent you. I didn’t enclose a note because I didn’t know if that would be prudent — remember, I’m still new at this.”

Johnson also agreed to Wichterman’s suggestion that they personally meet at Johnson’s apartment. Further correspondence ensued in which Wichterman and Johnson mutually planned to meet in October of 1985.

Wichterman obtained a valid warrant authorizing a search of Johnson’s apartment and, accompanied by other postal inspectors, proceeded to his address on October 2, 1985. Upon meeting with Johnson and entering the apartment, Wichterman identified himself as a postal inspector and served Johnson with the warrant. The other postal inspectors then entered the apartment and a search was conducted that disclosed a substantial collection of child pornography. Johnson thereupon voluntarily admitted that he had mailed a package containing sexually explicit photographs of children to Wichterman, and had consented to a search of his office at Memphis State University which revealed additional pedo-philic materials.

On October 3, 1985, a criminal complaint charged Johnson with one count of transmitting child pornography through the mails in violation of 18 U.S.C. § 2252. Johnson was subsequently indicted on October 16, 1985, and entered a plea of “not guilty” on October 23, 1985. A superseding indictment was returned on January 7, 1986, which additionally charged Johnson with seventeen counts of receiving pornography through the mails in violation of 18 U.S.C. § 1461 and 18 U.S.C. § 2.² Johnson was subsequently arraigned on January 2, 1986, and pled “not guilty” to all counts.

In an opinion filed on August 11, 1986, the district court determined that Johnson was guilty on all counts. Johnson was subsequently sentenced to a five year period of probation. He thereafter filed a timely notice of appeal to this court.

On appeal, Johnson raised four arguments. In regards to his conviction under 18 U.S.C. § 2252, Johnson contended that the government failed to prove beyond a reasonable doubt that he was predisposed to sending obscene material through the mails. Secondly, Johnson argued that the investigatory tactics of the postal inspectors were so outrageous as to constitute a deprivation of due process of law. As to his convictions under 18 U.S.C. § 1461, Johnson urged that the district court incorrectly concluded that this statute prohibited a person from causing obscene materials to be delivered to him through the mails. And lastly, Johnson alternatively argued that he lacked the requisite scienter to violate 18 U.S.C. § 1461.

Upon appellate review of the sufficiency of the evidence supporting a criminal conviction, this court must reverse, only if, based on the evidence, “a reasonable mind could not find guilt beyond a reasonable doubt.” United States v. Stull, 743 F.2d 439, 442 (6th Cir.1984), cert. denied, 470 U.S. 1062, 105 S.Ct. 1779, 84 L.Ed.2d 838 (1985). See also Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The evidence must be viewed in the light most favorable to the government. United States v. Robinson, 763 F.2d 778, 784 (6th Cir.1985); Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2788-89.

Johnson first argued that the conduct of the Government constituted entrapment. Specifically, Johnson urged that the Government failed to establish that he was predisposed to violate 18 U.S.C. § 2252³ beyond a reasonable doubt.

The defense of entrapment “focus[es] on the intent or predisposition of the defendant to commit the crime.” Hampton v. United States, 425 U.S. 484, 488, 96 S.Ct. 1646, 1649, 48 L.Ed.2d 113 (1976) (quoting United States v. Russell, 411 U.S. 423, 429, 95 S.Ct. 1637, 1641, 36 L.Ed.2d 366 (1973)). “It is only when the Government's deception actually implants the criminal design in the mind of the defendant that the defense of entrapment comes into play.” Russell, 411 U.S. at 436, 93 S.Ct. at 1645, 36 L.Ed.2d at 376.

If the lack of predisposition is apparent from the uncontradicted evidence, entrapment can be determined as a matter of law. United States v. Silva, 846 F.2d 352, 354-55 (6th Cir.1988). United States v. Thoma, 726 F.2d 1191 (7th Cir.1984), cert. denied, 467 U.S. 1228, 104 S.Ct. 2683, 81 L.Ed.2d 878 (1984). However, once the issue of predisposition is in dispute, the Government must prove beyond a reasonable doubt that the defendant was predisposed to commit the offense. United States v. McLernon, 746 F.2d 1098 (6th Cir.1984).

Predisposition has been defined as “the defendant’s state of mind before his initial exposure to government agents.” McLernon, 746 F.2d at 1112 (quoting United States v. Kaminski, 703 F.2d 1004, 1008 (7th Cir.1983)). Factors relevant in determining the defendant’s state of mind include;

the character or reputation of the defendant, including any prior criminal record; whether the suggestion of the criminal activity was initially made by the Government; whether the defendant was engaged in the criminal activity for profit; whether the defendant evidenced reluctance to commit the offense, overcome only by repeated Government inducement or persuasion; and the nature of the inducement or persuasion supplied by the Government.

McLernon, 746 F.2d at 1112, (quoting Kaminski, 703 F.2d at 1008). The immediate record was replete with evidence from which the district court could have reasonably concluded that the above factors had been proven beyond a reasonable doubt.

The evidence demonstrated that Johnson actively pursued his interest in expanding his collection of pedophilic materials, and that he used the mail in furtherance of this purpose. For approximately ten years, Johnson had used the mail to place his orders and receive child pornography.⁴ In fact, on one occasion, Johnson learned that the United States Customs Bureau had confiscated one of his overseas orders. However, this did not deter him from continuing to use the mails to expand his collection of child pornography.

Additional insight into Johnson’s character can be gleaned from his letters with Wichterman. Johnson expressed great interest in Wichterman’s fictitious relationship with a young girl named “Julie.” In fact, Johnson indicated that he would be interested in developing sexual contact with a minor similarly inclined. Johnson also cautioned Wichterman to be careful because the young girl could “blow the whistle” on Wichterman. Clearly, Johnson’s character and reputation revealed a complete disregard to abide by the law in pursuit of his passion for child pornography.

Furthermore, Johnson was not seduced to criminal activity by repeated government inducements. Johnson came to the attention of postal inspectors by voluntarily responding to an advertisement placed in Screw Magazine. Johnson also was the first to express a desire to exchange pedo-philic materials. In fact, Johnson disregarded the advice given by postal inspector Wichterman that law enforcement agents were everywhere who could discover their correspondence and any exchange of pedophilie materials. While Johnson presented some reluctance to place obscene material in the mail, the mere suggestion of a possible video cassette composed of pictures from various magazines was sufficient to prompt Johnson to voluntarily seek participation. This is unlike the type of repeated government inducement found in McLemon, 746 F.2d at 1113-14.

In McLemon, the government agent proposed a profitable business arrangement for marketing and distributing illegal drugs as an inducement for defendant’s assistance in organizing the proposed traffic in illegal drugs which defendant repeatedly refused prior to his consenting to participate in the conspiracy. The government agent also exploited the Indian heritage of the “blood brothers” relationship that had developed between the two prior to the proposed drug transaction and professed a death threat against him to further stimulate the defendant to participate in the conspiracy. See also Silva, at 354-58. The evidence, in the present case, reflected that far from being coerced by government agents, Johnson was driven by his own unyielding desire to expand his pedophilie collection. Although Johnson did not have a financial stake in the criminal activity, he was profiting from the expansion of his library of child pornography. It is clear that Johnson’s predisposition to enlarge his collection at any cost developed long before his correspondence with postal inspectors.

Accordingly, it is apparent from the record taken in its entirety that the district court could have rationally concluded beyond a reasonable doubt that Johnson was predisposed to violating 18 U.S.C. § 2252. As a result, Johnson’s defense of entrapment was misplaced.

Johnson’s charge that his conviction of violating 18 U.S.C. § 2252 was offensive to the Due Process Clause of the Fifth Amendment was equally without merit. Johnson urged that he was denied due process of law because the government employed fundamentally unfair investigative tactics which amounted to outrageous government conduct.

The Supreme Court in United States v. Russell, 411 U.S. 423, 431, 93 S.Ct. 1637, 1642, 36 L.Ed.2d 366 (1973) indicated that some conduct of law enforcement agents might be “so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.” Id. The Sixth Circuit has defined four factors to be taken into consideration when determining if police conduct impinged constitutional due process protections. These factors are: (1) the need for the type of government conduct in relationship to the criminal activity; (2) the preexistence of a criminal enterprise; (3) the level of the direction or control of the criminal enterprise by the government; (4) the impact of the government activity to create the commission of the criminal activity. United States v. Robinson, 763 F.2d 778, 785 (6th Cir.1985); United States v. Norton, 700 F.2d 1072, 1075 (6th Cir.1983), cert. denied, 461 U.S. 910, 103 S.Ct. 1885, 76 L.Ed.2d 814 (1983); United States v. Brown, 635 F.2d 1207, 1213 (6th Cir.1980).

On the facts presented by this record, there was clearly no violation of due process. Because the transmission of child pornography through the mails occurs within a shroud of secrecy, it is apparent that the use of an advertisement in Screw Magazine and personal correspondence by a postal inspector posing as a pedophilic collector was justified to detect and investigate violations of 18 U.S.C. § 2252. The record contained substantial evidence that Johnson was engaged in a preexisting enterprise to collect child pornography through the mail. Moreover, there is no evidence that Wichterman exercised any control over the criminal activity with which Johnson was charged, or that Wichter man’s tactics disproportionately increased the incidence of transmitting obscene materials through the mail. It was Johnson who first solicited Wichterman to exchange pedophilic material. Accordingly, the postal inspector’s conduct was not so fundamentally unfair and outrageous as to violate Johnson’s due process rights. See United States v. Thoma, 726 F.2d 1191 (7th Cir.1984) cert. denied, 467 U.S. 1228, 104 S.Ct. 2683, 81 L.Ed.2d 878 (1984); United States v. Kabala, 680 F.Supp. 1254 (N.D.Ill., 1988).

Turning to his convictions under 18 U.S.C. § 1461, Johnson argued that this statute did not apply to recipients of obscene material for use exclusively within the privacy of a recipient’s home; consequently, he committed no crime. Instead, Johnson contended that § 1461 applied only to individuals who intended to circulate the obscene material relying heavily upon the opinion of a district court in United States v. Sidelko, 248 F.Supp. 813 (M.D.Pa.1965), to support his proposition to disregard the clear language of the statute.

Johnson was convicted under the portion of 18 U.S.C. § 1461 which in pertinent part states:

Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device or substance; ...

Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.

Whoever knowingly uses the mails for the mailing, carriage in the mails, or delivery of anything declared by this section or section 3001(e) of title 39 to be nonmailable, or knowingly causes to be delivered by mail according to the direction thereon, ... shall be fined not more than $5,000 or imprisoned not more than five years, or both, for the first such offense, and shall be fined not more than $10,000 or imprisoned not more than ten years, or both, for each such offense thereafter.

Id. (emphasis added).

A well settled rule of statutory interpretation directs the court in the first instance to examine the language of the statute. “[0]nly the most extraordinary showing of contrary intentions from [the legislative history] would justify a limitation on the ‘plain meaning’ of the statutory language. When we find the terms of a statute unambiguous, judicial inquiry is complete, except in ‘rare and exceptional circumstances.’ ” Garcia v. United States, 469 U.S. 70, 75, 105 S.Ct. 479, 482, 83 L.Ed.2d 472 (1984) (citations omitted). See also United States v. Premises Known as 8584 Brown Road, 736 F.2d 1129 (6th Cir.1984). This court is of the opinion that the district court in Sidelko did not correctly apply this well established legal principle.

It is evident from a review of the plain language of the statute that the passage “whoever ... knowingly causes to be delivered by mail according to direction” is clearly broad enough to encompass persons who order and receive obscene material for personal use and consumption and is not limited to persons who only place obscene material in the mail. The statute is unambiguous as to this conclusion. Consequently, this court is precluded from further investigation into other possible interpretations of the statute, unless there is any extraordinary showing of contrary intentions in the legislative history.

In reviewing the legislative history of § 1461, this court has found no expressed legislative intent to exclude persons who order and receive obscene material in the mail from the dictates of the statute. Although the statute was amended in 1958 to replace the term “whoever knowingly deposits ” for “whoever knowingly uses ” to resolve jurisdictional problems, there is no indication in the conference or senate reports which suggests an intent contrary to the plain language of the statute. S.Rep. No. 1839 and H.R. Conf.Rep. No. 2624, 85th Cong., 2d Sess., reprinted in 1958 U.S.Code Cong. & Admin.News 4012-4018. This conclusion is consistent with the Ninth Circuit’s interpretation of § 1461. In United States v. Hurt, 795 F.2d 765 (9th Cir.1986), modified on other grounds, 808 F.2d 707 (1987), cert. denied, — U.S. -, 108 S.Ct. 69, 98 L.Ed.2d 33 (1987), the court determined the language “whoever knowingly uses the mails” to be intended to include persons who order and receive obscene material through the mail for their personal use and consumption. Consequently, Johnson’s conduct of ordering and receiving child pornography in the mail for his private use was within the plain language of the statute.

Lastly, Johnson suggested that he did not possess the requisite scienter to violate 18 U.S.C. § 1461 because the government failed to prove he had knowledge of the character or nature of the advertisements and brochures received by him in the mail.

Section 1461 makes it a crime if a person “knowingly causes to be delivered by mail” any obscene material. 18 U.S.C. § 1461. In Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), the Court held that the defendant had the requisite scienter if he knew of the nature and character of the materials. See Hurt, 795 F.2d at 773; United States v. Marchant, 803 F.2d 174, 176 (5th Cir.1986).

Viewing the record in the light most favorable to the government, it is apparent that Johnson possessed sufficient knowledge to violate 18 U.S.C. § 1461. The record disclosed that Johnson was an experienced collector of pedophilia with an uncanny awareness of the practices and procedures employed by commercial distributors of obscene materials. For example, although claiming that he neither ordered nor expected to receive advertising brochures and pamphlets, Johnson testified that he was aware that: (1) commercial distributors of pornography were violating the law; (2) past orders placed by him with commercial distributors of child pornography would insure future receipt of mail advertisements promoting obscene materials, and the circulation of his name amongst other commercial distributors of obscenity; (3) absent his objection his name would remain upon those various mailing lists; and (4) the advertisement he was likely to receive would contain sexually explicit photographs of children. “When the receipt occurs at the invention or with the consent of the possessor, it is more difficult to camouflage the fulsome scent of forbidden knowledge.” Marchant, 803 F.2d at 177.

In combination with the fact that he avidly collected pedophilia for a period of approximately ten years prior to his apprehension, the direct evidence of Johnson’s knowledge of the practices and procedures commonly employed by commercial distributors of obscene materials in marketing their merchandise proved him to be a sophisticated and willing participant who was predisposed to violating the law to further his activities. Therefore the district court properly concluded that Johnson possessed the requisite scienter to have violated § 1461.

Accordingly, the judgment of the district court that Johnson was guilty of sending child pornography through the mails in violation of 18 U.S.C. § 2252, and guilty of fifteen counts of causing obscene materials to be delivered through the mails in violation of 18 U.S.C. § 1461 is AFFIRMED.

1 . In his communication with Johnson, Wichter-man always used a fictitious identity which was changed over the course of the investigation. Thus, for clarity, he will hereinafter be referred to as "Wichterman.”

2 . Two of the seventeen additional counts of receiving pornography in violation of 18 U.S.C. § 1461 and 18 U.S.C. § 2 were dismissed prior to the commencement of Johnson's trial.

3 . Section 2252 of Title 18 stated in pertinent part that:

(a) Any person who—

(1) knowingly ... mails any visual depiction, if—

(A) the production 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 [guilty of a criminal offense]. 18 U.S.C. § 2252.

4 . Johnson’s contention that pedophilie materials received by him did not demonstrate a predisposition to commit the crime of sending pedophilic materials was without merit. In United States v. Gantzer, 810 F.2d 349, 352 (5th Cir.1987), the court held that defendant’s "propensity to receive pornographic—though not necessarily legally obscene—materials through the mail is probative of his predisposition to send legally obscene photographs.”