United States v. Gendron , 18 F.3d 955 ( 1994 )

LOUIS H. 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.”

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 Gen-dron “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 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.