Dean Boland v. Eric Holder, Jr. , 682 F.3d 531 ( 2012 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0193p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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DEAN BOLAND,
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Plaintiff-Appellant,
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No. 10-4381
v.
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Defendant-Appellee. -
ERIC H. HOLDER, JR.,
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Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 1:09-cv-1614—Solomon Oliver, Jr., Chief District Judge.
Decided and Filed: June 22, 2012
Before: BATCHELDER, Chief Judge; NORRIS and STRANCH, Circuit Judges.
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COUNSEL
ON BRIEF: Dean Boland, Esq., BOLAND LEGAL, LLC, Lakewood, Ohio, filing on
his own behalf. Thomas M. Bondy, Mark R. Freeman, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
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OPINION
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ALAN E. NORRIS, Circuit Judge. Plaintiff Dean Boland seeks review of the
dismissal of his complaint for failure to state a claim upon which relief may be granted.
Boland asserts that defense attorneys and expert witnesses are entitled to possess and
digitally create child pornography for use in Ohio courtrooms. He seeks a declaratory
judgment and injunction preventing the United States Attorney General from prosecuting
criminal defense attorneys and defense expert witnesses under a host of federal laws,
including those protecting minors from sexual exploitation, for conduct “engaged in as
1
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part of [an Ohio] judicial proceeding.” Boland claims that the declaratory judgment he
seeks is required by the First and Sixth Amendments, as well as by the fact that federal
child pornography laws do not preempt state child pornography laws.
The district court disagreed and dismissed Boland’s complaint under Federal
Rule of Civil Procedure 12(b)(6). On appeal, Boland challenges the district court’s legal
reasoning on the First Amendment, Sixth Amendment, and preemption issues. He
additionally claims that the district court committed procedural error by failing to accept
his factual assertions as true. We disagree and affirm the judgment of the district court.
I.
This action for declaratory judgment stems indirectly from an investigation of
Boland’s creation of child pornography by the FBI. In connection with having served
as an expert witness and defense attorney in Ohio and federal courts, Boland has
possessed and created child pornography by combining benign images of identifiable
children and pornographic images of adults. He has used these images to suggest that
his clients do not satisfy the mens rea requirements of laws under which they are
prosecuted. The images Boland has used constitute child pornography under 18 U.S.C.
§ 2256(8)(C) as they are “created, adapted, or modified to appear that an identifiable
minor is engaging in sexually explicit conduct.” Though the images Boland created
constitute child pornography under federal law, he claims that his use of the images is
legal under Ohio law. Ohio’s prohibition on child pornography exempts activities
engaged in for “a bona fide medical, scientific, educational, religious, governmental,
judicial, or other proper purpose, by or to a . . . person having a proper interest in the
material or performance.” Ohio Rev. Code Ann. § 2907.321(B)(1); see also §§
2907.322(B)(1), 2907.323(A)(1)(a) (containing the same exception). Federal law
contains no such exception.
In June 2005, Boland was detained by the FBI and several of his computers were
seized. To avoid prosecution for creating and possessing child pornography, he signed
a Pre-Trial Diversion Agreement in which he admitted to creating and possessing child
pornography in violation of federal law. In exchange for 18 months of compliance with
No. 10-4381 Boland v. Holder Page 3
the agreement, the United States Attorney for the Northern District of Ohio agreed not
to prosecute Boland for the offenses to which he admitted.1
Boland has not returned to the practice of creating and possessing child
pornography for use in the courtroom, but believes that he is entitled to do so. Boland’s
complaint seeks a broad injunction preventing the government from prosecuting
activities under thirteen federal statutes if those activities are “a. approved by order of
a state court officer presiding over any matter involving the Ohio Child Pornography
Statutes; . . . b. authorized by any of the Ohio Child Pornography Statutes; or c. engaged
in as part of that judicial proceeding involving the Ohio Child Pornography Statutes and
in furtherance of same.”
Boland presents three arguments that he is entitled to a declaratory judgment and
an injunction against prosecution under the federal child pornography laws: (1) that
federal child pornography laws do not preempt Ohio child pornography laws,
particularly the exceptions contained within the Ohio statute; (2) that the First
Amendment prevents prosecution of the creation and possession of child pornography
for use in court; and (3) that unless defense attorneys and expert witnesses may take
advantage of the exceptions contained in the Ohio statute, criminal defendants in child
pornography cases will be denied their Sixth Amendment right to a fair criminal trial.
The district court held that Boland lacked standing to challenge all but two of the
federal statutes identified in his complaint, 18 U.S.C. § 2252 and 2252A, as well as any
exceptions to those statutes in federal law. Boland does not appeal that part of the
district court’s order. Only sections 2252 and 2252A are at issue here. These laws
prohibit the receipt, distribution, and possession of visual depictions involving the use
1
In a related case, children whose images Boland used to create child pornography brought suit
against Boland through their guardians under the private right of action created by federal child
pornography laws. See 18 U.S.C. §§ 2252A(f), 2255. The district court in Doe v. Boland granted Boland’s
motion for summary judgment, holding that the federal child pornography statutes at issue could not
reasonably be read to apply to expert witnesses because to do so could infringe on criminal defendants’
Sixth Amendment rights. 630 F.3d 491, 494 (6th Cir. 2011). On appeal, a panel of this court disagreed
and held that the federal child pornography laws unambiguously decline to provide an exemption for expert
witnesses. Id. at 495. The panel in Doe explicitly did not consider whether the specific type of image
created by Boland is entitled to any First Amendment protection, id. at 497, and that question is not raised
here. Nor does this appeal directly concern Boland’s past creation of child pornography, or the private
action against Boland considered in Doe v. Boland.
No. 10-4381 Boland v. Holder Page 4
of minors in sexual situations. Regarding the two remaining statutory sections, the
district court found that Boland’s arguments did not present a claim on which relief
could be granted, and granted the government’s Rule 12(b)(6) motion to dismiss.
II.
On appeal of dismissal for failure to state a claim on which relief may be granted,
we conduct de novo review. Frank v. Dana Corp., 646 F.3d 954, 958 (6th Cir. 2011).
Like a district court considering a motion to dismiss in the first instance, we accept all
facts alleged in the complaint as true. Id. Mere legal assertions and conclusions
contained in the complaint need not be accepted as true. Rondigo L.L.C. v. Twp. of
Richmond, 641 F.3d 673, 684 (6th Cir. 2011); see also Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007).
III.
Boland claims that the district court erred by failing to accept as true all facts
alleged in his complaint. In support of this claim, he identifies a number of legal
conclusions that the court found to lack merit. For example, the district court declined
to accept Boland’s legal argument that because federal child pornography statutes do not
preempt Ohio’s child pornography laws, he is entitled to take advantage of the Ohio
exception without fear of federal prosecution.
“To state a valid claim, a complaint must contain either direct or inferential
allegations respecting all the material elements to sustain recovery under some viable
legal theory.” League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th
Cir. 2007) (emphasis added). The district court held that Boland’s complaint failed that
test, not because it refused to accept his factual allegations, but because it found that his
legal theory was not viable. The district court evaluated each of Boland’s legal claims,
and found, accepting all alleged facts as true, that none of them presented a viable legal
theory on which he could prevail. This was not procedural error.
No. 10-4381 Boland v. Holder Page 5
IV.
Boland argues that the district court erred in its conclusion that federal law
preempts Ohio law. The district court concluded that because Boland could not take
advantage of the exception contained within Ohio law and comply with federal child
pornography statutes, the two bodies of law are in conflict. However, because the
federal child pornography laws at issue are not in conflict with the Ohio exception, state
law is not preempted by the broader federal prohibition on child pornography. The fact
that federal law does not preempt Ohio child pornography laws does not, of course,
shield defense attorneys or expert witnesses from federal prosecution for possessing or
creating child pornography.
The federal laws at issue, 18 U.S.C. §§ 2252 and 2252A, do not contain an
exception for defense attorneys, expert witnesses, or judicial purposes. Doe v. Boland,
630 F.3d 491, 495 (6th Cir. 2011). The Ohio child pornography laws prohibit an
overlapping range of conduct. Like the federal child pornography laws, Ohio law
focuses, inter alia, on materials that depict minors engaging in sexual activity. See Ohio
Rev. Code Ann. §§ 2907.321-323. But, Ohio law prohibits less conduct than the federal
child pornography laws. That is because each of the relevant Ohio statutes includes an
exception for “any material or performance that is . . . displayed, possessed, . . . or
presented for a bona fide medical, scientific, educational, religious, governmental,
judicial, or other proper purpose, by or to a physician, psychologist, sociologist,
scientist, teacher, person pursuing bona fide studies or research, librarian, clergyman,
prosecutor, judge, or other person having a proper interest in the material or
performance.” Ohio Rev. Code Ann. § 2907.321(B)(1); see also §§ 2907.322(B)(1),
2907.323(A)(1)(a) (containing the same exception).
The Ohio carve out for bona fide purposes does no more than limit the scope of
the statutory section in which it resides. The federal law casts a wider net. It prohibits
possession and creation of child pornography for any purpose, including those that Ohio
deems bona fide. A difference in the scope of the two bodies of law does not put them
into conflict. Defense attorneys and expert witnesses can easily comply with both the
No. 10-4381 Boland v. Holder Page 6
federal and Ohio child pornography laws. Though the Ohio law does not prohibit
defense attorneys and expert witnesses from creating and possessing child pornography,
it does not require them to do so. The state law does not “stand[ ] as an obstacle” to the
accomplishment of the goals of federal child pornography laws. Florida Lime
& Avocado Growers, Inc. v. Paul, 373 U.S. 132, 141 (1963) (quoting Hines
v. Davidowitz, 312 U.S. 52, 67 (1941)). Where the two bodies of law overlap, state law
aids in the accomplishment of federal goals and vice versa. Where federal law prohibits
the possession and usage of child pornography that Ohio allows, the Ohio legislature is
powerless to extend an exception contained within its laws to federal laws, nor does it
make any attempt to do so. Though Boland is correct that federal child pornography
laws do not preempt Ohio’s laws, this fact does not entitle defense attorneys or expert
witnesses to violate federal child pornography laws in Ohio courtrooms or anywhere
else.
Alternatively Boland argues that the federal law simply does not outlaw conduct
by defense attorneys and expert witnesses or contains an implied exception. The plain
language of 18 U.S.C. §§ 2252 and 2252A does not limit the federal child pornography
laws’ application, and this court has already refused to read one into the unambiguous
statutory text. Doe, 630 F.3d at 495. The federal child pornography statutes at issue
apply equally to the malevolent pedophile and the defense attorney.
V.
Boland argues broadly that creation and use of child pornography by defense
attorneys and expert witnesses is speech that is protected by the First Amendment. He
bases this claim on Justice John Paul Stevens’s concurrence in New York v. Ferber,
458 U.S. 747, 777 (1982). In Ferber, the Supreme Court held that a New York Statute
that prohibited the sale of materials depicting sexual performances by those under
sixteen did not violate the First Amendment. Id. at 774. The Court’s majority held
broadly that “works that visually depict sexual conduct by children” are unprotected by
the First Amendment. Id. at 764 (emphasis in original). Justice Stevens concurred in
the judgment, but disagreed with the Court that all child pornography falls outside of
No. 10-4381 Boland v. Holder Page 7
First Amendment protection. He identified situations in which he thought child
pornography would be protected speech. For example, Justice Stevens concluded that
“the exhibition of these films before a legislative committee studying a proposed
amendment to a state law . . . could not, in my opinion, be made a crime.” Id. at 778
(Stevens, J. concurring).
Boland argues that if child pornography is protected by the First Amendment in
legislative proceedings, it must also be protected in judicial proceedings. His premise,
that legislative use of child pornography is protected by the First Amendment, does not
carry the weight of law. The majority is clear that when it comes to visual depictions of
sexual performances engaged in by minors, First Amendment protection does not apply.
The context of the speech, be it legislative or judicial, does not matter. Ferber, 458 U.S.
at 763-64. The First Amendment provides no greater protection for child pornography
within the courtroom than it does without.
VI.
Finally, Boland seeks a declaratory judgment based on the Sixth Amendment
rights of hypothetical future defendants to have a fair trial.2 Boland does not allege that
his own right to a fair trial, or that of other defense attorneys and expert witnesses, has
been or will be violated. The right to a complete defense belongs to criminal defendants,
not to their attorneys or expert witnesses. Normally, “[t]he Art. III judicial power exists
only to redress or otherwise to protect against injury to the complaining party, even
though the court’s judgment may benefit others collaterally. A federal court’s
jurisdiction therefore can be invoked only when the plaintiff himself has suffered some
threatened or actual injury . . . .” Warth v. Seldin, 422 U.S. 490, 499 (1975) (internal
quotation marks omitted). However, the Supreme Court has allowed individuals to seek
redress for harms to others’ rights when two criteria are satisfied: “First, we have asked
whether the party asserting the right has a ‘close’ relationship with the person who
2
This Court earlier rejected a similar argument by Boland in Doe v. Boland, and in the course of
its opinion the panel noted that “no constitutional principle at any rate allows a criminal defendant to
defend one criminal charge by urging his lawyer or witness to commit another.” 630 F.3d at 496.
No. 10-4381 Boland v. Holder Page 8
possesses the right. . . . Second, we have considered whether there is a ‘hindrance’ to
the possessor’s ability to protect his own interests.” Kowalski v. Tesmer, 543 U.S. 125,
130 (2004) (citation omitted); see also United States v. Ovalle, 136 F.3d 1092, 1102 (6th
Cir. 1998) (criminal defendant has standing to challenge violation of potential jurors’
right not to be excluded from the jury based on their race, under the equal protection
clause). In this case, appellant fails to satisfy the second criteria. Child pornography
defendants face no hindrance to challenging violations of their own Sixth Amendment
rights. In prior cases, defendants have raised such challenges, and they face no obstacle
to doing so again. See, e.g., U.S. v. Paull, 551 F.3d 516, 524 (6th Cir. 2009). Because
future defendants face no hindrance in raising Sixth Amendment claims on their own
behalf, Boland does not have standing to do so here.
VII.
The judgment of the district court is affirmed.