United States v. Richard Hugh Nelson , 847 F.2d 285 ( 1988 )

RYAN, Circuit Judge.

Defendant Richard Hugh Nelson appeals his jury conviction under 18 U.S.C. § 2252(a)(2) for knowingly receiving through the mails material which visually depicts minors engaging in sexually explicit conduct. Nelson’s appeal raises these issues: (1) whether Nelson was entrapped as a matter of law; (2) whether the district couF erred in denying Nelson’s motion in limine which sought to exclude pornographic books seized from his home; and (3) whether the district court’s chain of custody and entrapment instructions were proper. We conclude that Nelson’s assignments of error are without merit and affirm his conviction.

I.

In December 1984, federal authorities searched the Akron, Ohio home of Kenneth Larsen and the Copley, Ohio home of Larsen’s mother and discovered pornographic material depicting children as well as a piece of correspondence mailed by defendant Nelson from Canton, Ohio. Kenneth Larsen subsequently pled guilty to trafficking in child pornography. In the seized letter, Nelson graphically described his anatomy and sought photos of or correspondence with “a mature bi-lady and a young one, especially if its her daughter.” Based upon this letter, postal inspector Paul Hartman suspected that Nelson might be predisposed to mailing and receiving child pornography.

In February 1985, Hartman tried to establish contact with Nelson through the mails. Hartman began by sending Nelson two questionnaires from a fictional research company, “Research Facts.” The first questionnaire sought responsive information from individuals interested in “youthful lads and lasses of neophyte age.” Nelson did not respond to either questionnaire. In September 1985, Hartman sent Nelson two more letters. The first, a questionnaire from another fictional organization, the “Ohio Valley Action League,” drew no response. The second, an offer for a free “personal ad” in the Action League’s fictitious “newsletter,” also went unanswered.

In October 1985, Hartman sent Nelson what purported to be a misdelivered letter from the director of the Action League. The letter purported to disclose a surreptitious source of child pornography. Nelson wrote the intended recipient (actually Hartman), enclosed a $5 bill, and requested information on how to obtain photos and videos depicting young girls. Hartman replied that Nelson should first send him a sample of materials Nelson might find interesting. Nelson did not respond.

In April 1986, Hartman mailed Nelson a letter from a fictitious Virgin Islands corporation which advertised specific adult pornographic video tapes. The letter also stated that a catalog of tapes featuring child pornography was available upon request. Nelson responded by sending a $40 check and requesting any videotape “with very young people” as well as the child video catalog. Hartman responded by returning Nelson’s check and sending Nelson the child video catalog. Nelson then sent a $60 check and ordered a tape which the advertising material had described as containing minor females engaged in various sexually explicit acts. Hartman then inscribed a unique number for identification purposes on the requested tape and had it sent to Nelson under a controlled delivery.

Approximately seventeen minutes after Nelson picked up his mail and entered his home, Hartman served a search warrant upon him. A search of Nelson’s home produced the tape Nelson had ordered from Hartman as well as several paperback books which contained written portrayals of minor children engaged in sexually explicit acts.

II.

A

Nelson aserts that he was entrapped as a matter of law and, consequently, that the district court erred in denying his motion for a judgment of acquittal. The focus of an entrapment inquiry is on the defendant’s predisposition to commit the offense. This court has stated:

The central inquiry in entrapment cases is whether law enforcement officials implanted a criminal design in the mind of an otherwise law-abiding citizen or whether the government merely provided an opportunity to commit a crime to one who is already predisposed to do so.

United States v. Pennell, 737 F.2d 521, 534 (6th Cir.1984), cert. denied, 469 U.S. 1158, 105 S.Ct. 906, 83 L.Ed.2d 921 (1985). When a defendant raises the entrapment defense, the government bears the burden of proving predisposition beyond a reasonable doubt. Id. (citing United States v. Jones, 575 F.2d 81, 83 (6th Cir.1978)).

Entrapment is usually a question of fact for the jury. However, a defendant who shows undisputed facts and testimony demonstrating a “patently clear” absence of predisposition can make a claim of entrapment as a matter of law. Pennell, 737 F.2d at 534-35 (citing United States v. Henciar, 568 F.2d 489, 491 (6th Cir.1977), cert. denied, 435 U.S. 953, 98 S.Ct. 1582, 55 L.Ed.2d 803 (1978)). But if there is any showing of predisposition, it is up to the jury to determine whether the government agents actually implanted the criminal design in the mind of the defendant. Henciar, 568 F.2d at 491-92.

Nelson did not respond to Hartman’s first four letters. Only after the “misdeliv-ered” fifth letter did he express any pedo-philic interest. He argues that his resistance indicates a lack of predisposition. As additional support, Nelson cites his refusal to send the samples which Hartman’s sixth letter sought. While the issue is close, we conclude that Nelson has not demonstrated the “patently clear” absence of predisposition necessary to show entrapment as a matter of law.

At the very outset, Nelson’s letter seized in the December 1984, Larsen search evinces a predisposition to violate § 2252:

I am 6' 2" tall [sic] trim and hung 9" and thick [sic ] also single. I have read your ad, and it sounds very interesting, as there’s nothing nicer than a mature bi-lady and a young one, especially if it’s her daughter.... I would like to buy some photos and correspond if possible, maybe meet.

Concededly, Hartman’s first four letters soliciting responses from Nelson went unanswered. Although Nelson refused to send the samples requested by Hartman’s sixth letter (a separate violation under § 2252(a)(1)), he quickly responded to Hartman’s seventh and eighth letters which offered to sell Nelson the material in question through the mails (a violation under § 2252(a)(2)).

Finally, the contents of the paperback books seized from Nelson’s home are indicative of a predisposition to purchase pedo-philic materials. We conclude that the foregoing evidence of Nelson’s predisposition, taken together, sufficiently raises a question of fact for the jury under Henc-iar, 568 F.2d at 491-92, and that the district court properly denied Nelson’s motion for judgment of acquittal.

B

Nelson sought to exclude from evidence eight paperback books seized from his home in the same search that produced the tape Hartman had previously mailed. Nelson based his argument on the rationale of Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), which created a constitutionally protected right to possess obscene materials in one’s home. The district court denied the motion.

In United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973), the court rejected the contention that Stanley established a correlative right to receive, transport, or distribute obscene material. Relying on this holding, other circuits have held that punishing the mere receipt of child pornography under § 2252 is constitutional. See United States v. Marchant, 803 F.2d 174 (5th Cir.1986); United States v. Hale, 784 F.2d 1465 (9th Cir.1986), cert. denied, — U.S. —, 107 S.Ct. 110, 93 L.Ed.2d 59 (1986).

Nelson was convicted of receiving child pornography. By raising the entrapment defense, he therefore raised the issue of predisposition. The seized paperbacks are relevant as to whether or not Nelson was predisposed to send for pedophilic materials and on that basis alone were properly admitted. The parameters of Stanley are simply inapposite to this case, for Nelson was never criminally charged for possessing the books.¹

C

Nelson argues that the court’s instructions inadequately reflected the conflicting testimony surrounding the authenticity of the seized videotape. Nelson testified that the tape introduced into evidence was not the one seized by Hartman. Hartman testified that he affixed an identifying label on the tape prior to delivering it to Nelson and that he had maintained complete control over that same tape since its seizure. The jury was generally instructed that it was to weigh the evidence and that it could “accept or reject the testimony of any witness in whole or in part.”

Nelson has failed to cite to any portion of the record which indicates that he either filed a written request for a contrary instruction or that he objected to the given instruction. His failure to do so bars assignment of error on appeal. Fed.R. Crim.P. 30. Even had Nelson made a timely objection, his argument is without merit. In closing argument, Nelson’s attorney raised the possibility that Hartman was deceitful and that the tape was not authentic. Under the general instruction previously cited, the jury could have permissibly accepted or rejected Nelson’s interpretation of the evidence.

Nelson also argues that the instructions inadequately defined the defense of entrapment. The instruction given by the district court is nearly identical to the standard entrapment instruction cited by the Supreme Court in United States v. Russell, 411 U.S. 423, 427 n. 4, 93 S.Ct. 1637, 1640 n. 4, 36 L.Ed.2d 366 (1973). We find that the court’s entrapment instruction, when read in conjunction with the previously cited general instruction, adequately addresses the relevant indicia of predisposition.² This court has long held that a trial judge is not required to give a requested instruction if the subject matter of the instruction is substantially covered in the judge’s general charge. United States v. Carabbia, 381 F.2d 133, 138 (1967), cert. denied, 389 U.S. 1007, 88 S.Ct. 564, 19 L.Ed.2d 602 (1967).

Nelson also argues that the entrapment instruction is insufficient because it does not contain his proposed charge that would have instructed the jury to find that Hartman had violated 18 U.S.C. § 1461 because he, not Nelson, deposited non-mailable material in the mail. This instruction ignores the investigatory powers of the postal inspector and is not relevant to Nelson’s own receipt of the tape which is itself a violation of § 2252.

For the foregoing reasons, the defendant’s conviction is AFFIRMED.

1 . We note, however, that Ohio’s attempts to criminalize the mere possession of materials containing sexual depictions of minors, Ohio Rev. Code Ann. (Anderson 1987) §§ 2907.-321(A)(5) and 2907.322(A)(5), have been held constitutional. See State v. Meadows, 28 Ohio St.3d 43, 503 N.E.2d 697 (1986), cert. denied, — U.S. —, 107 S.Ct. 1581, 94 L.Ed.2d 771 (1987).

2 . See, e.g., United States v. Thoma, 726 F.2d 1191, 1197 (7th Cir.1984), cert. denied, 467 U.S. 1228, 104 S.Ct. 2683, 81 L.Ed.2d 878 (1984).