United States v. Richardson, Thomas ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-4309
United States of America,
Plaintiff-Appellee,
v.
Thomas C. Richardson,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No 99 CR 339--Suzanne B. Conlon, Judge.
Argued October 23, 2000--Decided January 25, 2001
Before Posner, Diane P. Wood, and Williams, Circuit
Judges.
Posner, Circuit Judge. The defendant pleaded
guilty to receiving and possessing child
pornography (including visual depictions) in
violation of 18 U.S.C. sec.sec. 2252(a)(2) and
(a)(4)(B) and was sentenced to 108 months in
prison. He had downloaded more than 70,000
pornographic images from Internet-accessed
newsgroups with such names as
"alt.binaries.pictures.erotica.lolita." The FBI
examined a random sample of 1,300 of these images
and discovered that 77 depicted bondage and
torture of children. The sentencing judge raised
Richardson’s base offense level by four levels
under U.S.S.G. sec. 2G2.2(b)(3) because the
bondage and torture pictures "portray[ed]
sadistic or masochistic conduct or other
depictions of violence" and by two levels under
U.S.S.G. sec. 2G2.2(b)(5) because "a computer was
used for the transmission" of the illegal
material. The appeal challenges the two
punishment enhancements.
An initial puzzle unilluminated by the briefs is
the confusing overlap between the guideline under
which Richardson was sentenced, 2G2.2, and a
closely related guideline, 2G2.4. The first of
these is captioned "Trafficking in Material
Involving the Sexual Exploitation of a Minor;
Receiving, Transporting, Shipping, or Advertising
Material Involving [such exploitation];
Possessing Material Involving [such exploitation]
with Intent to Traffic." The second guideline is
captioned "Possession of Materials Depicting a
Minor Engaged in Sexually Explicit Conduct." The
first guideline specifies a base offense level of
17, the second one of 15. The second also
provides a two-level enhancement for use of a
computer, but expresses it differently: "if the
defendant’s possession of the material resulted
from the defendant’s use of a computer, increase
by 2 levels," rather than "if a computer was used
for the transmission" of the material. The second
guideline, however, contains no enhancement for
sadistic, masochistic, or violent material. The
first guideline, we are told in the Sentencing
Commission’s commentary on it, is applicable to
defendants convicted of (among other offenses)
receiving visual images of child pornography, 18
U.S.C. sec. 2252(a)(2), a statute that carries a
maximum penalty of 15 years in prison, see sec.
2252(b)(1), while the second guideline is
applicable to defendants convicted of possession
of such images, sec. 2252(a)(4), which carries a
maximum penalty of only 5 years. sec. 2252(b)(2).
Richardson was convicted under both statutes but
sentenced under the guideline applicable to the
one carrying the heavier maximum penalty. That
was proper under the guidelines’ grouping rules,
U.S.S.G. sec.sec. 3D1.1, 3D1.3(a), and anyway is
not challenged; if he were punished only for his
less grave offense, he would be escaping
punishment for committing the graver one.
The puzzle is why receiving, which under the
first guideline and the statute that it
implements is punished as severely as sending,
United States v. Ellison, 113 F.3d 77, 81 (7th
Cir. 1997), should be punished more severely than
possessing, since possessors, unless they
fabricate their own pornography, are also
receivers. The explanation may be that receivers
increase the market for child pornography and
hence the demand for children to pose as models
for pornographic photographs; possessors, at
least qua possessors, as distinct from receivers,
though most of them are that too, do not. United
States v. Johnson, 221 F.3d 83, 98 (2d Cir.
2000). The possessor who creates his own
pornography strictly for his personal use is not
part of the interstate and international traffic
in child pornography, a traffic that not only
increases the demand for the production of such
pornography but, by virtue of its far-flung
scope, makes it extremely difficult to locate,
let alone protect, the children exploited by it.
Concern with the welfare of the children who are
used to create pornography is part of the public
concern over child pornography, United States v.
Saylor, 959 F.2d 198, 200 (11th Cir. 1992), and
this makes the receiver a greater malefactor than
the possessor.
We grant that the distinction is rather tenuous.
The possessor who creates his own child
pornography has presumably used a child as his
model; and it is uncertain whether Richardson
paid for any of the images he downloaded. But
these are doubts for another day, since he makes
no issue of the fact that the two statutes, and
the guidelines implementing them, specify
different penalties.
Against the four-level enhancement for receiving
visual images of bondage or torture, however,
Richardson argues with support from several
decisions by other circuits that the enhancement
requires proof that he received these images
deliberately. United States v. Tucker, 136 F.3d
763 (11th Cir. 1998) (per curiam); United States
v. Kimbrough, 69 F.3d 723, 734 (5th Cir. 1995);
United States v. Cole, 61 F.3d 24 (11th Cir.
1995) (per curiam); United States v. Saylor,
supra, 959 F.2d at 200-01. There is no evidence
that Richardson ordered such images or wanted to
receive them. He downloaded child pornography
from newsgroups that did not indicate whether any
of their images contained scenes of bondage or
torture. If the sample that the government
examined is representative, about 5 percent of
the images he received did contain such scenes.
One of the decisions on which Richardson relies
(Saylor) is distinguishable as involving
"sentencing entrapment." Id. at 200. With no
reason to think Saylor desired sadomasochistic
pornography, the government shipped it to him in
order to create a predicate for enhanced
punishment. Cole is distinguishable from our case
for a different reason, that the defendant
exercised reasonable care to avoid receiving
sadomasochistic pornography. Richardson did not.
On the contrary, by downloading in bulk from
sources that did not indicate the range of sexual
practices depicted in their inventory of
pornographic images, he assumed a substantial
risk of receiving some bondage and torture
images. Tucker and Kimbrough do not require proof
of reasonable care to avoid the receipt of
violent images, but in Kimbrough a requirement of
intent is assumed rather than discussed, and in
Tucker the court, while explicit that intent to
receive violent images must be shown, found the
requisite intent on evidence no stronger than is
present in this case.
Setting aside cases of sentencing entrapment, we
think that the government is correct that
liability for receiving violent child pornography
is strict. Sentencing enhancements generally are
imposed on the basis of strict liability rather
than of the defendant’s intentions or even his
lack of care. The more serious of the two
offenses of which Richardson was convicted
requires knowing receipt of child pornography,
thus satisfying the usual requirement that mens
rea be proved to convict a person of a serious
offense, and exposed him to a maximum sentence of
15 years. The guideline at issue enhanced his
sentence within that range to reflect the fact
that receiving bondage and torture pictures
aggravates the offense. The guidelines contain
numerous provisions enhancing punishment when the
defendant causes more than the usual harm that
the offense inflicts, without regard to whether
unusual harm was intended. An example is U.S.S.G.
sec. 2B3.1, which, as explained in United States
v. Hart, 226 F.3d 602, 605 (7th Cir. 2000),
"governs the crime of robbery and provides for a
range of enhancements to be imposed by the
sentencing court if the defendant’s conduct
during the course of the robbery created a risk
of harm beyond that which is inherent to the
offense"; see also United States v. Schnell, 982
F.2d 216, 220-22 (7th Cir. 1992). The punishment
bonus for receiving child pornography that
depicts bondage and torture is simply another
illustration of the general principle. Should a
case arise in which the defendant made heroic
efforts to avoid receiving bondage and torture
pictures, the district court will no doubt grant
a downward departure, and that is safety valve
enough. This is not such a case, and we therefore
find ourselves in respectful disagreement with
our sister circuits. Because of this disagreement
we have circulated the opinion to the full court
in accordance with 7th Cir. R. 40(e). No judge in
regular active service voted to hear the case en
banc.
Regarding the second issue, the two-level
enhancement for transmission via computer, there
is an initial question whether the issue is
properly before us. At sentencing the judge asked
Richardson’s lawyer whether he had an objection
to the enhancement, and the lawyer said "no."
This was a waiver in the strict sense of the
term, that is, a deliberate relinquishment of a
known right. As such it is barred from receiving
further judicial consideration, United States v.
Olano, 507 U.S. 725, 733 (1993); Johnson v.
Zerbst, 304 U.S. 458, 464 (1938); United States
v. Harris, 230 F.3d 1054, 1058-59 (7th Cir.
2000); United States v. Staples, 202 F.3d 992,
995 (7th Cir. 2000); United States v. Goldberg,
67 F.3d 1092, 1099-1100 (3d Cir. 1995), unless
the lawyer violated his duty of providing his
client with effective assistance of counsel,
which is not argued here. "Waiver" is often used,
it is true, in a broader sense to mean that a
litigant forfeits an issue by failing to present
it in a timely fashion (or at all), even though
the failure may have been accidental rather than
deliberate. United States v. Johnson, 223 F.3d
665, 668 (7th Cir. 2000); United States v.
Staples, supra, 202 F.3d at 995; Delwood Farms,
Inc. v. Cargill, Inc., 128 F.3d 1122, 1127 (7th
Cir. 1997). In cases of waiver in this sense,
better called forfeiture to distinguish it from
classic or "real" waiver, Rule 52(b) of the
Federal Rules of Criminal Procedure permits
"plain errors" to be "noticed although they were
not brought to the attention of the court."
The distinction between waiver and forfeiture is
important to the operation of an adversary
system, which is another reason for avoiding use
of the word "waiver" to designate both concepts.
It is one thing to require judges to be alert to
oversights that may affect substantial rights,
and another to require them to override the
clearly expressed wish of a party or his lawyer,
which may be backed by excellent strategic
reasons, not to invoke a particular right. The
law has not taken the second step. The safety
valve here is the defendant’s right under the
Sixth Amendment to the effective assistance of
counsel, which may make a waiver for which there
was no strategic reason a ground for giving the
defendant a new trial.
Even if there were no difference between waiver
and forfeiture, this would not matter in the
present case, because we believe that "computer .
. . used for the transmission" in section
2G2.2(b)(5) of the sentencing guidelines does not
mean, as the defendant argues, "computer . . .
used by the defendant for the transmission." It
is true that this language differs from that of
the corresponding computer-related enhancement in
the possession guideline, which directs
enhancement "if the defendant’s possession of the
material resulted from the defendant’s use of a
computer." But that language wouldn’t fit all the
different offenses in the trafficking-receiving-
possessing-with-intent-to-distribute guideline.
Some difference in language between the two
computer-enhancement provisions was therefore
inevitable. The "used for the transmission"
formulation is not as perspicuous as it could be,
and this is a matter to which the Sentencing
Commission may wish to advert (and maybe at the
same time it could explain why receiving and
possessing the identical materials should be
punished differently); but we think it reasonably
clear that it covers receiving as well as
sending. The words permit this reading, though
they do not compel it, but the structure of the
guideline compels it. The guideline treats
transporting and receiving identically (unless
the defendant is right and the computer
enhancement drives a wedge between the two
offenses). A defendant who receives in the mails
a magazine containing child pornography is
punished the same (apart from individual
differentiating characteristics such as criminal
history) as the one who sent it. What sense would
it make to break this punishment identity just
because the mode of transmission was the Internet
rather than the mails? Use of the Internet
enhances the dangers that child pornography
poses, because it is a more discreet and
efficient method of distribution; but if this
makes the sender more dangerous, it likewise
makes the receiver more dangerous. A market has
two sides, supply and demand; without both, the
market collapses. The senders of child
pornography supply it; the demanders receive it.
The guideline is acknowledged to treat both sides
of the market symmetrically when any method of
transmission other than the Internet is used; it
would make no sense to treat them differently
when the more ominous method is used.
Affirmed.