United States v. Knox

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
6-8-1994
United States of America v. Knox
Precedential or Non-Precedential:
Docket 92-7089
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________________
No. 92-7089
_____________________
UNITED STATES OF AMERICA
v.
STEPHEN A. KNOX,
Appellant
________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Crim. No. 91-00074)
________________________________
Argued August 17, 1992
Decided October 15, 1992
Certiorari Granted June 7, 1993
On Remand from the Supreme Court of the United States
November 1, 1993
Reargued April 27, 1994
Before: HUTCHINSON, COWEN and WEIS, Circuit Judges
(Filed June 9, 1994)
________________________________
Alan Silber (argued)
Hayden, Perle & Silber
1500 Harbor Boulevard
Lobby A, 2nd Floor
Weehawken, NJ 07087
1
COUNSEL FOR APPELLANT
STEPHEN A. KNOX
Kathleen A. Felton (argued)
U.S. Department of Justice
Appellate Section, Criminal Division
P.O. Box 899
Ben Franklin Station
Washington, DC 20044
COUNSEL FOR APPELLEE
UNITED STATES OF AMERICA
Edward W. Warren (argued)
Kirkland & Ellis
655 15th Street, N.W.
Suite 1200
Washington, DC 20005
COUNSEL FOR AMICI CURIAE
234 MEMBERS OF CONGRESS
Michael A. Bamberger (argued)
Sonnenschein, Nath & Rosenthal
1221 Avenue of the Americas, 24th Floor
New York, NY 10020-1089
COUNSEL FOR AMICI CURIAE
AMERICAN BOOKSELLERS FOUNDATION FOR FREE
EXPRESSION; COUNCIL FOR PERIODICAL DISTRIBUTORS
ASSOCIATIONS; NATIONAL ASSOCIATION OF ARTISTS'
ORGANIZATIONS; PERIODICAL AND BOOK ASSOCIATION
OF AMERICA, INC.; APERTURE FOUNDATION, INC.;
FREEDOM TO READ FOUNDATION; MAGAZINE PUBLISHERS
OF AMERICA; AMERICAN CIVIL LIBERTIES UNION; LAW
& HUMANITIES INSTITUTE
H. Robert Showers
National Law Center for Children and Families
3975 University Drive, Suite 320
Fairfax, VA 22030
COUNSEL FOR AMICI CURIAE
NATIONAL LAW CENTER FOR CHILDREN AND FAMILIES;
THE NATIONAL PARENT TEACHER ASSOCIATION; NATIONAL
COALITION AGAINST PORNOGRAPHY; "ENOUGH IS
ENOUGH!"; CHILDHELP USA; CHILD WELFARE LEAGUE OF
AMERICA; NATIONAL CENTER FOR MISSING AND
EXPLOITED CHILDREN; AMERICAN COALITION FOR ABUSE
AWARENESS; NATIONAL COUNCIL OF CATHOLIC WOMEN;
2
JUSTICE FOR CHILDREN; ALLIANCE FOR THE RIGHTS OF
CHILDREN; WOMEN AGAINST PORNOGRAPHY; LUTHERAN
CHURCH MISSOURI SYNOD; CHRISTIAN COALITION; FOCUS
ON THE FAMILY; FAMILY VIOLENCE & SEXUAL ASSAULT
INSTITUTE; FAMILY RESEARCH COUNCIL, INC.; NATIONAL
CENTER FOR REDRESS OF INCEST AND SEXUAL ABUSE;
RABBINICAL ALLIANCE OF AMERICA; CHRISTIAN LIFE
COMMISSION OF THE SOUTHERN BAPTIST CONVENTION;
CHRISTIAN ACTION NETWORK; HELP US REGAIN THE
CHILDREN; FREE CONGRESS RESEARCH AND EDUCATION
FOUNDATION; COALITIONS FOR AMERICA; SAVE AMERICA'S
YOUTH, INC.; CITIZENS AGAINST PORNOGRAPHY;
PENNSYLVANIA CHRISTIAN COALITION; TRADITIONAL
VALUES COALITION; CHRISTIAN LEGAL DEFENSE AND
EDUCATION FOUNDATION; EAGLE FORUM; CHILD
PROTECTION LOBBY; VOICES FOR VICTIMS; VOICES IN
ACTION, INC.
Ronald D. Ray
1012 South Fourth Street
Louisville, KY 40203
COUNSEL FOR AMICUS CURIAE
THE INSTITUTE FOR MEDIA EDUCATION
James P. Mueller
National Family Legal Foundation
5353 North 16th Street, Suite 400
Phoenix, AZ 85016
COUNSEL FOR AMICI CURIAE
NATIONAL FAMILY LEGAL FOUNDATION; MORALITY
IN MEDIA, INC.
______________________
OPINION OF THE COURT
______________________
COWEN, Circuit Judge.
The principal question presented by this appeal is
whether videotapes that focus on the genitalia and pubic area of
minor females constitute a "lascivious exhibition of the genitals
3
or pubic area" under the federal child pornography laws, 18
U.S.C. §§ 2252(a)(2), (4) and 2256(2)(E) (1988 & Supp. IV 1992),
even though these body parts are covered by clothing. When this
case first came before us, we held that such visual depictions do
qualify as lascivious exhibitions and that this interpretation
does not render the statute unconstitutionally overbroad. United
States v. Knox, 977 F.2d 815, 820-23 (3d Cir. 1992), vacated and
remanded, __ U.S. __, 114 S. Ct. 375 (1993).
At the Supreme Court's instruction, we have further
considered this case "in light of the position asserted by the
Solicitor General in his brief for the United States," Knox v.
United States, __ U.S. __, 114 S. Ct. 375 (1993). In that brief
and in its subsequent brief filed in this court after the Supreme
Court remand, the government argues that the plain language of
the statute requires the genitals or pubic area exhibited to be
at least somewhat visible or discernible through the child's
clothing. We hold that the federal child pornography statute, on
its face, contains no nudity or discernibility requirement, that
non-nude visual depictions, such as the ones contained in this
record, can qualify as lascivious exhibitions, and that this
construction does not render the statute unconstitutionally
overbroad. Finally, we again conclude that the government
presented sufficient evidence at the bench trial to establish
both the necessary mens rea and the delivery of the films through
interstate mail. We thus will reaffirm Knox's conviction.
I.
4
In March of 1991, the U.S. Customs International Branch
intercepted a mailing to France which contained a request that
two videos, "Little Girl Bottoms (Underside)" and "Little
Blondes," be sent to J. Richard Scott, 210 West Hamilton Avenue,
No. 108, State College, Pennsylvania. The parcel also contained
a check drawn on the account of defendant Stephen A. Knox and
bearing his signature. The check listed his address as 210 East
Hamilton Avenue, No. 25, State College, Pennsylvania. A second
envelope addressed to J. Richard Scott from the Netherlands also
was confiscated and contained a catalog advertising for sale
videotapes depicting nude, semi-clothed, and clothed minors.
Aware that Knox previously had been convicted of receiving child
pornography through the mail, the customs investigators obtained
a search warrant and with the assistance of the Pennsylvania
State Police searched his apartment.0
The police officers seized three video cassettes
produced by the Nather Company (hereafter "Nather Tapes"), a
videotape distribution company based in Las Vegas, Nevada. A
catalogue from the Nather Company with checkmarks next to several
video selections was also removed from Knox's apartment. One of
the marked videos in the brochure corresponded to a segment of a
compilation tape which was seized. Envelopes addressed to Nather
and Nather mail order forms were discovered as well as a carbon
0
The district court determined that the search of Knox's
apartment did not violate the Fourth Amendment, and Knox does not
contest this decision on appeal.
5
copy of a money order payable to Nather Company for an amount
approximately equal to the price of a single video.
The tapes contained numerous vignettes of teenage and
preteen females, between the ages of ten and seventeen, striking
provocative poses for the camera. The children were obviously
being directed by someone off-camera. All of the children wore
bikini bathing suits, leotards, underwear, or other abbreviated
attire while they were being filmed. The government conceded
that no child in the films was nude, and that the genitalia and
pubic areas of the young girls were always concealed by an
abbreviated article of clothing. The photographer would zoom in
on the children's pubic and genital area and display a close-up
view for an extended period of time. Most of the videotapes were
set to music. In some sequences, the child subjects were dancing
or gyrating in a fashion not natural for their age. The films
themselves and the promotional brochures distributed by Nather
demonstrate that the videotapes clearly were designed to pander
to pedophiles.
The United States prosecuted Knox based exclusively on
the three Nather tapes. Knox was indicted on two counts: (1)
knowingly receiving through the mail visual depictions of a minor
engaged in sexually explicit conduct; and (2) knowingly
possessing three or more videotapes that contain a visual
depiction of a minor engaging in sexually explicit conduct in
violation of 18 U.S.C. § 2252(a)(2) and (4). "Sexually explicit
conduct" for both of these offenses is defined to include a
6
"lascivious exhibition of the genitals or pubic area." Id.
§2256(2)(E).
Pursuant to Federal Rule of Criminal Procedure 12(b),
Knox filed a pre-trial motion to dismiss the indictment
contending that the videos did not contain an "exhibition" of the
genitals or pubic area since these areas were always covered by
underwear, leotards, or a bathing suit. Knox and the government
agreed to a pre-trial hearing to determine whether the indictment
was facially sufficient. The district judge viewed portions of
the Nather tapes which the parties stipulated were representative
of the material contained in the videos. To determine the
meaning of the statutory language "exhibition of the . . . pubic
area," the district court looked to the plain meaning of the
words. Since the pubic area is located directly adjacent to the
genitalia, the district court concluded that other areas in close
proximity to the genitals, specifically the "uppermost portion of
the inner thigh," were also included in the statutory definition
of the pubic area. District Court Memorandum at 14; App. at 41.
Since the upper portion of the inner thigh was clearly exposed,
the court held that the tapes contained an exhibition of the
pubic area, and therefore denied Knox's motion to dismiss the
indictment.
Knox waived his right to a jury trial and a bench trial
was held. At the bench trial, all of the exhibits and testimony
from the pre-trial hearing were incorporated into the record for
purposes of the trial. Additionally, the government admitted
into evidence advertising catalogues from Nather, Nather mail
7
order forms, and envelopes addressed to the Nather Company which
were seized from Knox's apartment. The catalogues described in
detail the contents and intended effect of the films that could
be purchased:
"Sassy Sylphs" will blow your mind so completely you'll
be begging for mercy.
Just look at what we have in this incredible tape:
about 14 girls between the ages of 11 and 17 showing so
much panty and ass you'll get dizzy. There are panties
showing under shorts and under dresses and skirts;
there are boobs galore and T-back (thong) bathing suits
on girls as young as 15 that are so revealing it's
almost like seeing them naked (some say even better).
District Court Memorandum at 11; App. at 38.
The government also introduced evidence to establish
that Nather mailed the tapes from its office in Nevada to the
mailbox which Knox had rented under a fictitious name. Finally,
the carbon copy of a sixty-two dollar money order payable to
Nather was admitted to prove the method of payment. Although
Knox did not testify and called no defense witnesses, he
introduced magazine advertisements for Nather's videotapes which
claimed that the absence of complete nudity rendered the tapes
legal to purchase and possess.
The district court found Knox guilty on both counts.
Thereafter, on February 13, 1992, Knox filed a motion for a
judgment of acquittal or, alternatively, as he styled it, an
application for a hearing to explore the anatomical issue decided
by the court, predicated upon the contention that the uppermost
portion of the inner thigh is not the pubic area. In conjunction
with this motion, Knox submitted the affidavit of Dr. Todd Olsen,
8
Director of Human Gross Anatomy at the Albert Einstein College of
Medicine. The affidavit of Dr. Olsen stated that defining the
pubic area to encompass the uppermost portion of the inner thigh
is anatomically incorrect. Since the motion was filed three
months after entry of the verdict, the district court denied the
motion as untimely. Knox was sentenced to the minimum mandatory
term of imprisonment of five years for each count, to be served
concurrently. The sentence has been stayed pending the outcome
of this appeal.
Knox appealed the denial of the motion to dismiss the
indictment, the guilty verdict, and the denial of the post-trial
motion for judgment of acquittal.0 We upheld Knox's conviction.
In doing so, we interpreted the statutory phrase "exhibition of
the genitals or pubic area" as encompassing the lascivious focus
on these body parts even though they were always covered by
underwear, leotards, or other thin but opaque clothing. United
0
In our prior consideration of this case, we addressed as a
preliminary matter whether we had jurisdiction to review the
issues presented in Knox's untimely post-trial motion for a
judgment of acquittal. See United States v. Knox, 977 F.2d 815,
818-19 (3d Cir. 1992) (Part II), vacated and remanded, __ U.S.
__, 114 S. Ct. 375 (1993). We decided not to address the merits
of the motion because we concluded that the district court had
not abused its discretion in declining to entertain it in the
first instance. Id. at 819. We next addressed whether a nude
display of the uppermost portion a minor subject's inner thighs
can be a lascivious exhibition of the pubic area. Id. at 819-20
(Part III). We concluded that it could not because this portion
of the human anatomy is not part of the pubic area as defined in
the most widely accepted human anatomy treatises. Id. at 819.
Because neither Knox nor the government, nor any of the various
amici parties, have argued that those conclusions are erroneous,
we need not address them in this opinion other than to say that
we adhere to the analysis and conclusions set forth in our prior
opinion which was vacated by the Supreme Court.
9
States v. Knox, 977 F.2d 815, 820-23 (3d Cir. 1992), vacated and
remanded, __ U.S. __, 114 S. Ct. 375 (1993). We are the first,
and to date only,0 court which has interpreted the statute to
allow for a conviction under these circumstances.
II.
After we affirmed his conviction, Knox successfully
petitioned the U.S. Supreme Court for certiorari. See Knox v.
United States, __ U.S. __, 113 S. Ct. 2926 (1993). In his
petition for certiorari, Knox presented four issues, most of
which focus on whether there can be an "exhibition of the
genitals or pubic area" under 18 U.S.C. § 2256(2)(E) where the
genitals and pubic area are fully covered by an article of
clothing.0 In its brief opposing the grant of certiorari, the
0
According to several of the briefs submitted to this court,
Knox's prosecution is the only one that has been brought by the
government where the criminal materials at issue do not contain
any nudity at all. The government did not dispute this
contention in its brief or at oral argument after remand from the
Supreme Court. Thus, for purposes of this appeal we will assume
that the contention is true. Of course, we recognize that a
prosecutor always has broad discretion to decide the
circumstances that warrant prosecution of a person for what the
prosecutor fairly believes is unlawful conduct. When the
prosecutor decides to prosecute, however, it is the exclusive
function of the judiciary to determine whether the conduct
charged is unlawful unless the prosecutor then withdraws the
prosecution.
0
The four questions presented by Knox in his petition for
certiorari are the following:
1) Whether there can be an "exhibition of the genitals
or pubic area" under 18 U.S.C. § 2256(2)(E) where the
genitals and pubic area are fully covered by an article
of clothing.
2) Where no other prosecution has ever been brought and
no other arrest has ever been made charging an
10
government supported the theory we adopted in upholding Knox's
conviction. After the grant of certiorari, and the change in
administration following President Clinton's election, the
government took a different position.
The government's new position is that while complete
nudity is not absolutely required for a depiction to constitute a
criminal "exhibition," this court "erred in holding that simply
focusing on the midsection of a clothed body may constitute an
'exhibition' of the unrevealed body parts beneath the garments."
Gov't Sup. Ct. Brief (Sept. 1993) at 10. In the government's
view, a criminal "exhibition" requires both that the visual
depiction focus in on the body parts and that it render them
visible or discernible in some fashion. Id.
Reviewing the legislative history, the government noted
that the Justice Department in 1977 had made a suggestion to
exhibition of the genitals which were fully covered by
an article of clothing, and the defendant knew that the
videotape contained no nudity and was told that the
videotape was therefore legal, did the government
introduce sufficient proof of scienter to support a
guilty verdict?
3) Where no other prosecution has ever been brought and
no other arrest has ever been made charging an
exhibition of the genitals which were fully covered by
an article of clothing, is an objectively reasonable
good faith belief in the legality of the depiction a
valid affirmative defense?
4) Assuming arguendo that there can be an "exhibition
of the genitals or pubic area" under 18 U.S.C.
§2256(2)(E) where the genitals and pubic area are fully
covered by clothing, is 18 U.S.C. § 2256(2)(E)
unconstitutionally vague and overbroad?
Knox's Petition for a Writ of Certiorari (Sup. Ct. No. 92-1183,
October Term, 1992) at (i).
11
substitute the phrase "lewd exhibition of the genitals or pubic
area" for a more vague phrase in order to more clearly delineate
"what types of nude portrayals of children were intended to be
encompassed" within the statute. Id. at 11 (quoting Protection
of Children Against Sexual Exploitation: Hearings Before the
Subcomm. to Investigate Juvenile Delinquency of the Senate Comm.
on the Judiciary, 95th Cong., 1st Sess. 77-78 (1977), reprinted
in 1978 U.S.S.C.A.N. 63 (letter from Patricia M. Wald, Assistant
Attorney General to James O. Eastland, Chairman, Committee of the
Judiciary)) (emphasis added by government). The government reads
this legislative history as an indication that Congress only
intended to criminalize depictions that are at least partly nude
in nature. In our prior opinion, we distinguished this
legislative history by noting that the language of the Wald
letter assumed that Congress only intended to criminalize nude
depictions because the language of the bill at that time
contained the word "nudity."
As to the scope of nudity required, the government did
not go so far as to agree with Knox that complete nudity is
required. Rather, the government asserted that Congress intended
to criminalize depictions of genitals that are at least somewhat
visible. Id. at 11-12. Thus, the government stated that a
child's genitals which are covered by a transparent or nearly
transparent garment, or clothing that is so tight as to reveal
completely the contours of the genitals, would constitute a
criminal "exhibition" within the meaning of the statute. Id. at
12
12.0 Ultimately, the government believes that the child's
genitals or pubic area must be "discernible" through his or her
tight clothing in order for the exhibition to be child
pornography under 18 U.S.C. § 2256(2)(E).
The government put forth a second reason why our prior
opinion could not be fully supported. Relying on the
introductory statutory language which states that § 2252(a)
covers only depictions involving "the use of a minor engaging in
sexually explicit conduct," 18 U.S.C. § 2252(a) (emphasis added),
the government concluded that a criminal "exhibition" exists only
where "the minors who appear in the videotapes can be said to
have been acting or posing lasciviously." Gov't Sup. Ct. Brief
(Sept. 1993) at 13. Thus, according to the government's
position, the appropriate inquiry is on whether the child
lasciviously poses her (or someone else's) genitals or pubic
area. See id. Because neither this court nor the district court
interpreted the statute in this fashion, the government requested
that the Supreme Court vacate the judgment and remand for
reconsideration in light of the "correct" statutory standard.
The government also addressed two related issues in its
Supreme Court brief. First, it argued that adoption of the
advocated statutory standard would not render the statute
unconstitutionally vague or overbroad. Id. 14-17.0 Finally, the
0
The government acknowledged that the adoption of such a standard
would be more easily applied to depictions of boys than girls
because of obvious anatomical differences. Id. at 12 n.3.
0
We rejected Knox's arguments concerning overbreadth in our prior
opinion by finding the term "lascivious" as the limiting
principle. See Knox, 977 F.2d at 823.
13
government supported that part of our prior opinion which
rejected Knox's argument that he did not possess the necessary
mens rea to violate the child pornography statute because he did
not know the illegal nature of the contents of the videos, and
because he relied on disclaimers which accompanied the videotapes
from their commercial source. Id. at 17-20; see also Knox, 977
F.2d at 824-25.
In the final section of its Supreme Court brief, the
government stated that the videotapes at issue in this case might
be deemed unlawful under the statutory standard advocated in its
brief. Because we did not interpret the statute consistently
with the government's new position, the government requested that
the case "be remanded so that the Court of Appeals can assess the
sufficiency of the evidence under the proper legal standard."
Gov't Sup. Ct. Brief (Sept. 1993) at 20. The government
clarified that the only task necessary on remand was for this
court "simply to determine whether the evidence was sufficient,
under the correct legal standard, to support a general verdict of
guilty." Id. at 23.
Upon the close of briefing in the Supreme Court, but
before the case was argued, the Court vacated the judgment and
remanded. See Knox v. United States, __ U.S. __, 114 S. Ct. 375
(1993). The Supreme Court's mandate states the following: "The
judgment is vacated and the case is remanded to the United States
Court of Appeals for the Third Circuit for further consideration
in light of the position asserted by the Solicitor General in his
brief for the United States filed September 17, 1993." Id. Our
14
charge on remand is to further consider our interpretation of the
statute in light of the interpretation advanced by the government
in its brief to the Supreme Court.0
III.
Before turning to the merits of the case, we must
address one procedural issue. After the Supreme Court vacated
the judgment and remanded the case for further consideration, on
December 23, 1993 the government filed a Motion to (further)
Remand the case to the district court. This motion was made
during the new briefing schedule established by us on November
17, 1993. The government's motion sought an immediate remand for
the purpose of a retrial in the district court to be conducted
according to the interpretation of § 2256(2)(E) advocated by the
government.
In its motion, the government stated that at the new
trial, if granted, it intends to introduce evidence which was not
offered at the original trial pursuant to an agreement between
Knox and the government whereby the defense agreed to a bench
trial in return for use at trial of only certain specified
videotapes (i.e., the three Nather tapes). The government
0
After the Supreme Court remanded the case, we granted amicus
curiae status to five interested parties, all of which have
submitted briefs in this court. Four of the amici parties urge
us to reaffirm Knox's conviction on the theory adopted in our
prior opinion: 234 Members of Congress; The Institute for Media
Education; National Law Center for Children and Families et al.;
and National Family Legal Foundation and Morality in Media. The
final amicus party, American Booksellers Foundation for Free
Expression et al., supports Knox and argues that he should be
acquitted of the child pornography charges.
15
requested a suspension of the briefing schedule and an immediate
remand to the district court. We entered an order denying the
government's request for an immediate remand and a suspension of
the briefing schedule; we did, however, inform the parties that
we would further consider the merits of the government's motion
following the briefing schedule and oral argument.
Other than the arguments made in the December 23, 1993
Motion to Remand, the government has not further briefed this
issue. In its brief on the merits, however, the government
renews its request that we remand the case to the district court
for a new trial. Gov't Brief (March 1994) at 28.
The government argues that a remand is in order because
it has espoused a standard for interpreting the child pornography
statute that was not used by this court in reviewing the
conviction, and that was not used by the district court at trial.
Thus, the government believes that Knox should be retried
according to the standard urged by the government. According to
the government, a retrial would require factual determinations
concerning the evidence which would be inappropriate for this
court to make, specifically factual findings as to whether any of
the depictions in the videos reveal pubic areas or genitalia
which are discernible through the opaque clothing. For this
reason, as well as others, the government seeks a remand to the
district court for a new trial.
In its Motion to Remand, the government also noted that
in his reply brief filed in the Supreme Court, Knox requested a
remand to the district court in the event the Supreme Court
16
agreed with the government concerning the newly proposed
interpretation of the child pornography statute. As noted
previously, the government admitted in its motion that if we
agree to a remand, it will seek to introduce different evidence
at trial. The government argues that this is still the
appropriate course for the case at this juncture given that this
court will have a full opportunity to review the district court's
application of the proposed statutory standard in the event that
Knox is convicted again.
Following the remand from the Supreme Court, Knox now
opposes the government's motion to remand the case. First, Knox
argues that a remand for a new trial arguably would run directly
contrary to the Supreme Court's mandate for us to reconsider our
previous opinion "in light of the position asserted by the
Solicitor General," Knox, __ U.S. __, 114 S. Ct. 375.0 Knox also
argues that the government's new position raises an ambiguity
concerning the statute to which the rule of lenity must be
applied. Although Knox has not fully briefed this argument, he
contends that jeopardy has attached and that appellate review of
the trial record might result in his acquittal as a matter of
law. Thus, Knox argues that a remand for the purpose of giving
the government a second bite at the evidentiary apple would be
0
Knox, noting that the case has created a political firestorm,
therefore believes that the government wishes to avoid criticism
by using additional evidence to gain a conviction in a new trial
because the existing record does not contain sufficient evidence
to uphold the conviction under the "discernible genitals"
standard proposed by the government. We express no opinion
concerning this contention.
17
constitutionally inappropriate as a violation of the Double
Jeopardy Clause of the Fifth Amendment.
Amici curiae parties, including the amici Members of
Congress, also filed answers in opposition to the government's
motion for remand. The amici parties make several arguments as
to why granting the motion would be inappropriate. Essentially,
they argue that a remand would arguably violate the Supreme
Court's mandate, that the only disputed issue is legal in nature
and should be decided by this court, and that Supreme Court
precedent does not support the view that if at some time during
the proceeding both parties seek a remand to the district court,
that an appellate court must adhere to that request.
We will deny the government's Motion to Remand because
we believe that an immediate remand to the district court for
purposes of conducting a retrial without first deciding the legal
issue before us would violate the Supreme Court's mandate to this
court. The Supreme Court vacated our judgment and remanded the
case to us, not the district court, "for further consideration in
light of the position asserted by the Solicitor General in his
brief for the United States." Knox v. United States, __ U.S. __,
114 S. Ct. 375 (1993).
In the government's Supreme Court brief, the Solicitor
General merely argued that the interpretation of the child
pornography statute adopted in our prior opinion was legally
incorrect. The government advocated the adoption of a different
statutory standard, one that requires the contours of the
genitalia or pubic area to be discernible through the opaque
18
clothing in order for possession of the material to be criminal.
By remanding the case to this court for further consideration in
the first instance, the Supreme Court declined to address the
purely legal question presented.
Although the government's Supreme Court brief did at
one point request a remand to this court or the district court,
it did so only for the purpose of applying the legal standard
newly espoused by the government.0 The government never argued
in its Supreme Court brief that the case ought to be remanded to
the district court in order for the prosecution to introduce
additional evidence which, if admitted, might moot the entire
statutory interpretation issue which confronted the Supreme Court
0
The government's Supreme Court brief refers to or advocates a
remand in five different places. See Gov't Sup. Ct. Brief (Sept.
1993) at 9-10, 13, 20, and 23 (both in Part IV and Conclusion).
At only one point in the brief did the government mention a
remand to the district court. See id. at 20. There, the
government stated: "[I]f the Court agrees that an incorrect
construction of the statutory phrase was used below, the
appropriate disposition is to remand the case to the court of
appeals for application either by that court or the district
court of the correct standard to the facts of this case." Id.
(emphasis added). Thus, even where the brief did mention the
district court, it did so only for the purpose of indicating that
the appropriate trier of fact should apply the law once it has
been adopted or clarified by this court (the court of appeals).
Even here the government's Supreme Court brief advocated a remand
to this court for reconsideration of the purely legal issue of
statutory interpretation. At no point did the government's
Supreme Court brief mention the possibility of introducing new
evidence at trial if it were to be remanded to the district
court. Finally, in the Conclusion section of its brief, the
government explicitly requested "a remand to the court of appeals
for further proceedings," not to the district court for a new
trial. See id. at 23. Given that the government sought a remand
to this court by the Supreme Court, the Court's simply worded
mandate that this court further consider our statutory
interpretation makes perfect sense.
19
and now confronts this court on remand. But that is just the
course the government now advocates with its Motion to Remand.
If we were to agree to an immediate remand to the
district court for the purpose of holding a retrial with
additional evidence, we would be disposing of the case in a
manner that was not presented to or contemplated by the Supreme
Court. Given that the Supreme Court did not consider the
government's requested disposition as an option, it ordered us to
further consider our prior interpretation of the child
pornography statute in light of the newly advanced standard
espoused by the government. If we fail to address the legal
issue directly presented by the Solicitor General's brief and the
Supreme Court mandate, then arguably we will be ignoring simple
instructions from our higher authority. Furthermore, in light of
our disposition upholding Knox's conviction after further
consideration, the issue of a remand to the district court for a
new trial is moot.
Finally, it is important to address another aspect of
the government's Motion to Remand. In several instances the
government argues that a remand to the district court is exactly
the remedy Knox sought in the Supreme Court in the event that the
Court agreed that we had adopted the wrong statutory standard.
However, Knox requested this disposition only in the Supreme
Court, not in this court, and only before the government proposed
a remand to the district court for the purpose of introducing
additional evidence during the retrial.
20
Knox sought a remand to the district court for a new
trial only if the Supreme Court adopted the government's
"discernible genitals" statutory standard, because in Knox's view
the record evidence does not support a conviction even under that
standard. Therefore, the government's position that the case
should be immediately remanded to the district court for a new
trial using additional evidence is not advanced in any fashion by
the fact that Knox sought a remand from the Supreme Court before
the government revealed it would attempt to introduce different
evidence in the event a new trial was granted. It is logical for
a convicted criminal defendant to seek the alternative remedy of
a remand for a new trial in the event an appellate court does not
agree that the conviction cannot stand because the evidence was
insufficient to convict. In this case, however, the Supreme
Court did not address the legal issue, instead leaving it for us
to address in the first instance.
Under these circumstances, Knox now opposes a remand to
the district court for a new trial using additional evidence and
it is not relevant that in the Supreme Court Knox requested a
remand to the district court as an alternative remedy to that of
an outright acquittal for insufficiency of evidence. See, e.g.,
Garcia v. United States, 469 U.S. 70, 79, 105 S. Ct. 479, 484
(1984) ("[P]rivate agreements between litigants, especially those
disowned, cannot relieve this Court of performance of its
judicial function. It is our responsibility to interpret the
intent of Congress . . . irrespective of petitioners' or
respondent's prior or present views."). Since we will deny the
21
government's Motion to Remand because granting it would violate
the Supreme Court's mandate, we need not address whether adopting
such a course would implicate double jeopardy concerns.
IV.
We now turn to the merits of the case on remand. The
Protection of Children Against Sexual Exploitation Act of 1977,
as subsequently amended, criminalizes knowingly receiving through
the mail visual depictions of a minor engaged in sexually
explicit conduct and knowingly possessing three or more
videotapes which contain a visual depiction of a minor engaging
in sexually explicit conduct. 18 U.S.C. § 2252(a)(2), (4).
"Sexually explicit conduct" for purposes of both of these
offenses is defined to include the "lascivious exhibition of the
genitals or pubic area." Id. § 2256(2)(E). In our prior
opinion, we held that the statute contains no nudity requirement
because the above quoted statutory phrase refers to a "lascivious
exhibition," not a nude or naked exhibition. Knox, 977 F.2d at
820. Our review of the relevant legislative history revealed
that Knox had not met his burden of demonstrating that Congress
clearly intended the statute only to proscribe nude or partially
nude displays of the genitals or pubic area. Id. at 820-21.
Because the meaning of the statutory phrase "lascivious
exhibition" under 18 U.S.C. § 2256(2)(E) poses a pure question of
law, our review is plenary. United States v. Brown, 862 F.2d
1033, 1036 (3d Cir. 1988).
22
Defendant Knox continues to assert that the genitals or
pubic area must be unclad or nude, and fully exposed to the
camera, before an exhibition may occur. Several amici parties,
including the amici Members of Congress, support our prior
statutory interpretation that no nudity is required. The
government contends that the pictorial representation of the
genitals or pubic area, covered only by underwear, a bikini
bathing suit, a leotard, or other abbreviated attire, constitutes
a lascivious exhibition if (1) those body parts are at least
somewhat visible in the videotapes, and (2) the minors were
engaged in conduct that can be judged "lascivious."
When interpreting a statute, the starting point is
always the language of the statute itself. American Tobacco Co.
v. Patterson, 456 U.S. 63, 68, 102 S. Ct. 1534, 1537 (1982).
Courts presume that Congress expressed its legislative intent
through the ordinary meaning of the words it chose to use,
Richards v. United States, 369 U.S. 1, 9, 82 S. Ct. 585, 591
(1962); Perrin v. United States, 444 U.S. 37, 42, 100 S. Ct. 311,
314 (1979), and if the statutory language is clear, it is not
necessary to glean congressional intent from legislative history,
TVA v. Hill, 437 U.S. 153, 184 n.29, 98 S. Ct. 2279, 2296 n.29
(1978); Barnes v. Cohen, 749 F.2d 1009, 1013 (3d Cir. 1984),
cert. denied, 471 U.S. 1061, 105 S. Ct. 2126 (1985). Thus, it is
axiomatic that when the statutory language is clear, the words
must be interpreted in accordance with their ordinary meaning.
Dewalt v. Sullivan, 963 F.2d 27, 30 (3d Cir. 1992). Only the
most extraordinary showing of contrary congressional intent may
23
justify altering the plain meaning of a statutory term. Malloy
v. Eichler, 860 F.2d 1179, 1183 (3d Cir. 1988).
Knox attempts to read a nudity requirement into a
statute which has none. The amended Protection of Children
Against Sexual Exploitation Act criminalizes the "lascivious
exhibition of the genitals or pubic area." 18 U.S.C.
§2256(2)(E). In ordinary legal usage, the word "exhibit" means
"[t]o show or display; to offer or present for inspection."
Black's Law Dictionary 573 (6th ed. 1990). The genitals or pubic
area need not be fully or partially nude in order to be shown or
put on display. This plain meaning of the term "exhibition" is
confirmed by reference to a popular dictionary of the English
language, which defines "exhibit" as "[t]o display; as: a. [t]o
present for consideration; set forth . . . . b. [t]o present to
view; to show, esp. in order to attract notice to what is
interesting or instructive," Webster's New International
Dictionary 893 (2d ed. 1959).
Despite our understanding that the ordinary meaning of
the term "exhibition" does not require nudity, the government
urges us to adopt an intermediate statutory standard which
requires that the depiction in question render the minor's
genitals or pubic area visible or discernible in some fashion in
order to constitute an exhibition. The government attempts to
provide support for its "discernible genitals" standard from the
plain meaning of the statutory terms and from the legislative
history. First, the government argues that the ordinary meaning
of the term "exhibition," as used in the statute, contemplates
24
that the genitals or pubic area of the minors depicted must be
visible or discernible in some fashion. Absent some visibility
or discernibility of the genitals or pubic area, the government
in effect agrees with Knox that the depiction is an exhibition of
the clothing covering the body parts, rather than an exhibition
of the body parts themselves.
In support of this reading of the statute, Knox makes
reference to an analogy between the depictions contained in the
Nather tapes and an art exhibition. He argues that a celebrated
piece of sculpture such as Michelangelo's David would not be
exhibited or on display at all if there was an opaque dropcloth
covering the sculpture from head to toe. The government in
essence agrees, although it concedes that there would be an
exhibition of the sculpture if the David's prominent features
were discernible or otherwise visible through the dropcloth.
We disagree with this reasoning because we believe that
the analogy entirely misses the mark. It may well be that if a
work of art is completely covered, any and all of its meaning and
value to an observer is lost. That is, any and all of the
magnificent qualities which one seeks from viewing the David are
destroyed by completely covering the statue. In this sense, the
completely covered work of art is not being exhibited. In
contrast, it is not true that by scantily and barely covering the
genitals of young girls that the display of the young girls in
seductive poses destroys the value of the poses to the viewer of
child pornography. Although the genitals are covered, the
display and focus on the young girls' genitals or pubic area
25
apparently still provides considerable interest and excitement
for the pedophile observer, or else there would not be a market
for the tapes in question in this case. Thus, the scantily clad
genitals or pubic area of young girls can be "exhibited" in the
ordinary sense of that word, and in fact were exhibited in the
tapes which are the subject of Knox's conviction. The analogy
made by Knox and the government to exhibitions of covered works
of art fails on its own terms.
In any event, we are not called on in this case to
interpret the imaginary statutory phrase "art exhibition."
Rather, we are called upon to decipher Congress' intent
concerning the statutory phrase "lascivious exhibition of the
genitals or pubic area" as used in the federal child pornography
statute, 18 U.S.C. § 2256(2)(E). Thus, we must focus not on what
would or would not constitute an art exhibition, but rather on
whether the ordinary meaning of the term "lascivious exhibition"
includes the fully covered genitals or pubic area of minor
children.
In pursuing this task, we believe the principle that
"[w]ords take on meaning in the company of other words," St.
Surin v. Virgin Islands Daily News, Inc., No. 93-7553, slip op.
at 13 (3d Cir. Apr. 15, 1994), is relevant when interpreting
terms contained in a statute which Congress passed to curb a
particular evil. See Deal v. United States, __ U.S. __, __, 113
S. Ct. 1993, 1996 (1993) (it is a "fundamental principle of
statutory construction (and, indeed, of language itself) that the
meaning of a word cannot be determined in isolation, but must be
26
drawn from the context in which it is used"). As discussed more
fully below, Congress aimed the federal child pornography statute
at combatting "the use of children as subjects of pornographic
materials[, which] is harmful to the physiological, emotional,
and mental health of the child." New York v. Ferber, 458 U.S.
747, 758, 102 S. Ct. 3348, 3355 (1982); see also id. at 758 n.9,
102 S. Ct. at 3355 n.9. In so doing, Congress defined the
"lascivious exhibition of genitals or pubic area" as one variety
of "sexually explicit conduct" proscribed by the statute. Thus,
we find it more meaningful to focus on the ordinary meaning of
the statutory term "lascivious exhibition," rather than simply
focusing on the term "exhibition" divorced entirely from the
context in which it was used.
The term "lascivious" is defined as "[t]ending to
excite lust; lewd; indecent; obscene; sexual impurity; tending to
deprave the morals in respect to sexual relations; licentious."
Black's Law Dictionary 882 (6th ed. 1990). Hence, as used in the
child pornography statute, the ordinary meaning of the phrase
"lascivious exhibition" means a depiction which displays or
brings forth to view in order to attract notice to the genitals
or pubic area of children, in order to excite lustfulness or
sexual stimulation in the viewer. Such a definition does not
contain any requirement of nudity, and accords with the multi-
factor test announced in United States v. Dost0 for determining
0
636 F. Supp. 828 (S.D. Cal. 1986), aff'd sub nom. United States
v. Wiegand, 812 F.2d 1239 (9th Cir.), cert. denied, 484 U.S. 856,
108 S. Ct. 164 (1987). The Dost factors were articulated in order
to provide a more concrete test for determining whether a visual
27
whether certain material falls within the definition of 18 U.S.C.
§ 2256(E)(2). Nor does such a definition contain or suggest a
requirement that the contours of the genitals or pubic area be
discernible or otherwise visible through the child subject's
clothing.
The genitals and pubic area of the young girls in the
Nather tapes were certainly "on display" as the camera focused
for prolonged time intervals on close-up views of these body
depiction of a minor constitutes a "lascivious exhibition of the
genitals or pubic area" under 18 U.S.C. § 2256(2)(E):
1) whether the focal point of the visual depiction is
on the child's genitalia or pubic area;
2) whether the setting of the visual depiction is
sexually suggestive, i.e., in a place or pose generally
associated with sexual activity;
3) whether the child is depicted in an unnatural pose,
or in inappropriate attire, considering the age of the
child;
4) whether the child is fully or partially clothed, or
nude;
5) whether the visual depiction suggests sexual coyness
or a willingness to engage in sexual activity;
6) whether the visual depiction is intended or designed
to elicit a sexual response in the viewer.
636 F. Supp. at 832. The court readily admitted that this list
is not exhaustive as other factors may be relevant in particular
cases. Id.
We formally adopted the Dost factors as the relevant
test for determining lasciviousness in United States v. Villard,
885 F.2d 117, 122 (3d Cir. 1989). The analysis is qualitative
and no single factor is dispositive. Id. Other federal courts
have also relied on the Dost factors for this purpose. See
United States v. Arvin, 900 F.2d 1385, 1390-91 & n.4 (9th Cir.
1990), cert. denied, 498 U.S. 1024, 111 S. Ct. 672 (1991); United
States v. Wolf, 890 F.2d 241, 244-46 (10th Cir. 1989); United
States v. Rubio, 834 F.2d 442, 448 (5th Cir. 1987) (discussing
the six Dost factors without citing to the Dost case); United
States v. Nolan, 818 F.2d 1015, 1019 n.5 (1st Cir. 1987); United
States v. Mr. A., 756 F. Supp. 326, 328-29 (E.D. Mich. 1991).
28
parts through their thin but opaque clothing. Additionally, the
obvious purpose and inevitable effect of the videotape was to
"attract notice" specifically to the genitalia and pubic area.
Applying the plain meaning of the term "lascivious exhibition"
leads to the conclusion that nudity or discernibility are not
prerequisites for the occurrence of an exhibition within the
meaning of the federal child pornography statute.0
Our task of further examining the statutory language in
light of the Solicitor General's position also requires us to
address whether in our prior opinion we overlooked a requirement
that the minor subjects be engaged in conduct that can be judged
"lascivious." According to the government, this interpretation
of the statute is made necessary by the statutory language of 18
U.S.C. § 2252(a)(2)(A) and (a)(4)(B)(i), which criminalize the
possession of material depicting "the use of a minor engaging in
sexually explicit conduct." Id. (emphasis added). Since
"sexually explicit conduct" is defined to include "actual or
simulated lascivious exhibition of the genitals or pubic area of
any person," id. § 2256(2)(E), the government concludes that
depictions "come within the statute only if they show minors
engaged in the conduct of lasciviously exhibiting their (or
0
We note that were we to agree with the government that the
correct statutory standard requires the minor subject's genitals
or pubic area to be discernible through his or her clothing, we
would have no trouble upholding Knox's conviction. We have
viewed the Nather tapes. In several sequences, the photographer
has focused unnaturally on the genitals of the young girls in
close-up shots which reveal the outer contours of the genitals
through their tight bathing suits, leotards, or underwear.
29
someone else's) genitals or pubic areas." Gov't Sup. Ct. Brief
(Sept. 1993) at 13.
In its brief after remand, the government recedes
somewhat from the view implied by its Supreme Court brief that
the depiction must show the child subject to have some lascivious
intent. The government now argues only that the material must
depict some conduct by the child subject, which includes a
"lascivious exhibition of the genitals or pubic area," and which
appeals to the lascivious interest of some potential audience.
Although the government maintains that we did not address this
aspect of the statute, and that a complete statutory
interpretation should include this element, it argues that "the
tapes in this case easily meet that requirement of the statute."
Gov't Brief (March 1994) at 15.
The government is correct that in our prior opinion we
did not specifically address this aspect of the statute. We did
not do so because neither Knox nor the government presented for
review or argued this aspect of the statute as something the
court needed to address in order to decide the case. Upon
consideration of the meaning of this statutory language, we
reject any contention, whether implied by the government or not,
that the child subject must be shown to have engaged in sexually
explicit conduct with a lascivious intent.
In United States v. Wiegand, 812 F.2d 1239, 1244-45
(9th Cir.), cert. denied, 484 U.S. 856, 108 S. Ct. 164 (1987),
the Court of Appeals for the Ninth Circuit addressed this very
question. The court stated:
30
In the context of the statute applied to the conduct of
children, lasciviousness is not a characteristic of the
child photographed but of the exhibition which the
photographer sets up for an audience that consists of
himself or like-minded pedophiles. . . . The picture
of a child "engaged in sexually explicit conduct"
within the meaning of 18 U.S.C. §§ 2251 and 2252 as
defined by [§ 2256(2)(E)] is a picture of a child's sex
organs displayed lasciviously--that is, so presented by
the photographer as to arouse or satisfy the sexual
cravings of a voyeur.
Id. at 1244. See also United States v. Cross, 928 F.2d 1030,
1042-43 n.34 (11th Cir. 1991), cert. denied, __ U.S. __, 112 S.
Ct. 594 (1991), and __ U.S. __, 112 S. Ct. 941 (1992); Arvin, 900
F.2d at 1389; Mr. A., 756 F. Supp. at 329; United States v.
McCormick, 675 F. Supp. 223, 224 (M.D. Pa. 1987).
Children posing for pornographic pictures may suffer
dramatic harm regardless of whether they have an "adult" look of
sexual invitation or coyness on their face. Therefore, we adhere
to the view that "lasciviousness" is an inquiry that the finder
of fact must make using the Dost factors and any other relevant
factors given the particularities of the case, which does not
involve an inquiry concerning the intent of the child subject.
Our interpretation of the "lasciviousness" element is consistent
with the plain meaning of the statute and furthers Congress'
intent in eradicating the pervasive harm children experience when
subjected to posing for pornographic purposes.
Thus, we conclude that a "lascivious exhibition of the
genitals or pubic area" of a minor necessarily requires only that
the material depict some "sexually explicit conduct" by the minor
subject which appeals to the lascivious interest of the intended
audience. Applying this standard in the present case, it is
31
readily apparent that the tapes in evidence violate the statute.
In several sequences, the minor subjects, clad only in very tight
leotards, panties, or bathing suits, were shown specifically
spreading or extending their legs to make their genital and pubic
region entirely visible to the viewer. In some of these poses,
the child subject was shown dancing or gyrating in a fashion
indicative of adult sexual relations. Nearly all of these scenes
were shot in an outdoor playground or park setting where children
are normally found. Although none of these factors is alone
dispositive, the totality of these factors lead us to conclude
that the minor subjects were engaged in conduct--namely, the
exhibition of their genitals or pubic area--which would appeal to
the lascivious interest of an audience of pedophiles.
Since the statutory language does not suggest that a
nude exhibition is necessary, Knox bears the burden of
demonstrating a clear contrary congressional intent to warrant
importing into the statute an unexpressed requirement of nudity.
See Malloy, 860 F.2d at 1183. In our prior opinion, we reviewed
the legislative history and concluded that it supported our
interpretation of the statutory language. See United States v.
Knox, 977 F.2d 815, 820-21 (3d Cir. 1992), vacated and remanded,
__ U.S. __, 114 S. Ct. 375 (1993). After further examining the
relevant legislative history, however, we conclude that it is
wholly silent as to whether Congress intended the statutory term
"lascivious exhibition of the genitals or pubic area" to
encompass non-nude depictions of these body parts.
32
The legislative proposal before the original child
pornography statute was enacted in 1977 would have proscribed
"nudity, which nudity is depicted for the purpose of sexual
stimulation or gratification of any individual who may view such
depiction." S. 1011, 95th Cong., 2nd Sess. (1977). Since
Congress considered including nudity as an element of a criminal
depiction, we continue to believe that the decision to eliminate
this requirement must be deemed intentional. Thus, when Congress
passed the 1977 Act prohibiting a "lewd exhibition of the
genitals or pubic area of any person," it may have desired to
criminalize both clothed and unclothed visual images of a child's
genitalia if they were lewd.0 Clearly, Congress could have
expressly limited the statute's scope to encompass only naked
displays by prohibiting the "lascivious exhibition of the nude
genitals or pubic area of any person." But this is not the
language Congress included in the statute.0
0
A subsequent amendment, the Child Protection Act of 1984,
replaced "lewd" with the word "lascivious," but the two words
have nearly identical meanings. United States v. Wiegand, 812
F.2d 1239, 1243 (9th Cir.), cert. denied, 484 U.S. 856, 108 S. Ct.
164 (1987).
0
Furthermore, Congress failed to articulate anywhere in its
extensive legislative history any desire that the statute, as
enacted, prohibit only nude portrayals, or only depictions in
which the minor subject's genitals or pubic area are discernible
or at least somewhat visible. See H.R. Rep. No. 99-910, 99th
Cong., 2nd Sess. (1986), reprinted in 1986 U.S.C.C.A.N. 5952-59;
S. Rep. No. 98-169, 98th Cong., 2nd Sess. (1983), reprinted in
1984 U.S.C.C.A.N. 492; H.R. Rep. No. 98-536, 98th Cong., 2nd
Sess. (1983); S. Rep. No. 95-438, 95th Cong., 2nd Sess. (1977),
reprinted in 1978 U.S.C.C.A.N. 40-68; H.R. Rep. No. 95-696, 95th
Cong., 2nd Sess. (1977), reprinted in 1978 U.S.C.C.A.N. 69-71;
H.R. Conf. Rep. 99-910, 99th Cong., 2nd Sess. (1977).
33
Appellant Knox and the government, however, rely on a
letter from the Justice Department outlining its views concerning
S. 1001, the original proposed bill (containing the nudity
language), as evidence that Congress assumed that an exhibition
meant a nude, or as the government contends at least a
discernible, exhibition of the genitals or pubic area. See
Protection of Children Against Sexual Exploitation: Hearings
before the Subcomm. to Investigate Juvenile Delinquency of the
Comm. of the Judiciary, 95th Cong., 1st Sess. 77-78 (1977),
reprinted in 1978 U.S.C.C.A.N. 63 (letter from Patricia M. Wald,
Assistant Attorney General to James O. Eastland, Chairman,
Committee of the Judiciary). After suggesting that "lewd
exhibition of the genitals" replace the proposed nudity language,
the Assistant Attorney General stated, "Congress could make clear
in the legislative history of the bill what types of nude
portrayals of children were intended to be encompassed within
this definition." Id. Upon reexamination, we believe there are
two plausible interpretations of this letter and, thus, we
conclude that it is not helpful in determining Congress' intent.
Under the first interpretation, which we adopted in our
prior opinion, the Wald letter assumes that Congress only desired
to prohibit nude exhibitions because at that time the language of
the proposed bill included the word "nudity." By subsequently
eliminating the word "nudity," Congress appears to have
repudiated its earlier intention to confine the statute's
coverage to nude exhibitions. Alternatively, it is arguably
significant that the language suggesting that Congress clarify
34
what types of nude portrayals would be prohibited was contained
in the very letter recommending the substitution of the phrase
"lewd exhibition of the genitals" for the original nudity
language. Protection of Children, supra, 95th Cong., 1st Sess.
77-78. In light of this legislative history, Knox and the
government submit that Congress omitted any reference to nudity
in the statute by replacing it with the phrase "lewd exhibition
of the genitals or pubic area," which does not encompass any
depiction of completely clothed, or non-discernible, genitals or
pubic area.
Because we find both interpretations of this letter
plausible, and the legislative history in toto to be silent as to
whether Congress intended the statute to reach non-nude
depictions, we do not rely on it in adhering to our prior
statutory interpretation.0 We conclude that Knox has not met his
0
Nor do we rely on the legislative pronouncements concerning this
statute and case recently passed by both houses of Congress. On
November 4, 1993, the Senate unanimously adopted an amendment to
an unrelated bill confirming "the intent of Congress" that 18
U.S.C. § 2256(2)(E) "is not limited to nude exhibitions or
exhibitions in which the outlines of those areas [are]
discernible through clothing." 139 Cong. Rec. S14,976 (Daily
ed., Nov. 4, 1993). Subsequently on April 20, 1994, the House of
Representatives passed by a vote of 425-3 a similar nonbinding
resolution expressing the sense of Congress that "the Department
of Justice has used its brief in the Knox case as a vehicle for
reinterpretation of the child pornography laws in contravention
to legislative history," and that "Congress specifically
repudiated a nudity requirement for child pornography statutes."
140 Cong. Rec. H2536 (Daily ed., Apr. 20, 1994).
These resolutions are post-enactment legislative
history which should be given little, if any, weight because they
do not necessarily reflect the intent of the members of Congress
who originally enacted the statutory language. As Justice Scalia
stated concerning subsequent legislative history:
35
burden of proving that Congress intended the statute to reach
only a nude "lascivious exhibition of the genitals or pubic
area." Thus, we will not read a nudity requirement into a
statute that has none.
The underlying rationale for the federal child
pornography laws also supports the conclusion that clothed
exhibitions of the genitalia are proscribed. When an obscenity
statute is challenged as unconstitutional under the First
Amendment, the Supreme Court balances the government's interest
in protecting the sensibilities of unwilling recipients from
exposure to pornography against the dangers of government
censorship. Miller v. California, 413 U.S. 15, 93 S. Ct. 2607
"Subsequent legislative history"--which presumably
means the post-enactment history of a statute's
consideration and enactment--is a contradiction in
terms. The phrase is used to smuggle into judicial
consideration legislators' expressions not of what a
bill currently under consideration means (which, the
theory goes, reflects what their colleagues understood
they were voting for), but of what a law previously
enacted means.
. . .
Arguments based on subsequent legislative history,
like arguments based on antecedent futurity, should not
be taken seriously, not even in a footnote.
Sullivan v. Finkelstein, 496 U.S. 617, 631-32, 110 S. Ct. 2658,
2667 (1990) (Scalia, J, concurring in part).
The language of the child pornography statute at issue
in this case was enacted in 1977, and amended in 1984. Since
that time there has been such a large turnover in Congress that a
majority of the legislators who voted for the recent legislative
pronouncements had no role in the passage of the original
statute. Thus, we do not consider the subsequent legislative
history as providing any indication that the enacting Congress
intended the scope of the child pornography statute to cover non-
nude depictions.
36
(1973). Because the government interest, although legitimate, is
not compelling, regulation of obscene materials is limited to
works which "appeal to the prurient interest in sex, which
portray sexual conduct in a patently offensive way, and which,
taken as a whole, do not have serious literary, artistic,
political, or scientific value." Id. at 24, 93 S. Ct. at 2615.
The Supreme Court allows the states and Congress
greater leeway to regulate and proscribe pornography that depicts
minors as distinguished from adults since the harmful effects
suffered by a child are palpably more severe. New York v.
Ferber, 458 U.S. 747, 756-61, 102 S. Ct. 3348, 3354-57 (1982).
The Court relaxes the Miller obscenity test when pornographic
material portrays minors since the government's interest in
"safeguarding the physical and psychological well-being of a
minor" is "compelling." Id. at 756-57, 102 S. Ct. at 3354
(quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596,
607, 102 S. Ct. 2613, 2620 (1982)). The use of children as
subjects of pornographic materials is harmful to the
physiological, emotional, and mental health of the child. Id. at
757, 102 S. Ct. at 3355; Osborne v. Ohio, 495 U.S. 103, 109, 110
S. Ct. 1691, 1696 (1990). The psychological effect of visually
recording the sexual exploitation of a child is devastating and
its elimination is of "surpassing importance." Ferber, 458 U.S.
at 757, 102 S. Ct. at 3355. Since the child's image is
permanently recorded, the pornography may haunt him or her for a
lifetime because the child will be aware that the offensive
photograph or film is circulating through the masses. Id. at 759
37
n.10, 102 S. Ct. at 3355 n.10 (quoting Shouvlin, Preventing the
Sexual Exploitation of Children: A Model Act, 17 Wake Forest L.
Rev. 535, 545 (1981)). The crime is the affront to the dignity
and privacy of the child and the exploitation of the child's
vulnerability:
Human dignity is offended by the pornographer. American
law does not protect all human dignity; legally, an
adult can consent to its diminishment. When a child is
made the target of the pornographer-photographer, the
statute will not suffer the insult to the human spirit,
that the child should be treated as a thing.
United States v. Wiegand, 812 F.2d 1239, 1245 (9th Cir.), cert.
denied, 484 U.S. 856, 108 S. Ct. 164 (1987). Additionally,
controlling the production and dissemination of child pornography
is of paramount importance since pedophiles often use child
pornography to seduce other children into performing sexual acts.
Osborne, 495 U.S. at 111, 110 S. Ct. at 1697.
To vindicate the compelling government interest in
protecting the safety and welfare of children, not only is the
spectrum of constitutionally unprotected pornographic material
broader when the subjects are children rather than adults, but
also the arsenal of available enforcement mechanisms is more
extensive. For instance, the mere possession of child
pornography, even in one's home, may be criminalized although
only distribution of obscenity depicting adults can be
proscribed. Compare Stanley v. Georgia, 394 U.S. 557, 568, 89 S.
Ct. 1243, 1249 (1969) (Georgia statute outlawing private
possession of obscenity violates the First Amendment) with
Osborne, 495 U.S. at 108, 110 S. Ct. at 1695-97 (Ohio statute
38
criminalizing possession of child pornography upheld against
First Amendment challenge due to the compelling interest in
protecting minors).
The harm Congress attempted to eradicate by enacting
the child pornography laws is present when a photographer
unnaturally focuses on a minor child's clothed genital area with
the obvious intent to produce an image sexually arousing to
pedophiles. The child is treated as a sexual object and the
permanent record of this embarrassing and humiliating experience
produces the same detrimental effects to the mental health of the
child as a nude portrayal. The rationale underlying the
statute's proscription applies equally to any lascivious
exhibition of the genitals or pubic area whether these areas are
clad or completely exposed.
Knox next asserts that our decision in United States v.
Villard, 885 F.2d 117 (3d Cir. 1989), mandates that the genitals
or pubic area be exposed before an exhibition may occur. In
Villard, we stated that "more than merely nudity" was required
for a violation of the statute; otherwise, "inclusion of the term
`lascivious' would be meaningless." Id. at 121. The requirement
of more than mere nudity does not mean, as Knox contends, that
nudity is a prerequisite to the existence of an exhibition;
rather, Villard simply stated the obvious principle that nudity
alone is insufficient to constitute a lascivious exhibition. No
one seriously could think that a Renoir painting of a nude woman
or an innocuous family snapshot of a naked child in the bathtub
violates the child pornography laws. Nudity must be coupled with
39
other circumstances that make the visual depiction lascivious or
sexually provocative in order to fall within the parameters of
the statute. Such was our holding in Villard, which addressed
whether sufficient evidence existed to justify a finding of
lasciviousness.
In our prior opinion we went on to state that our
holding in Villard provides support for our conclusion that a
"lascivious exhibition" includes non-nude depictions of a minor's
genitals or pubic area. See Knox, 977 F.2d at 822-23. We came
to that conclusion because inclusion of the fourth Dost factor,
"whether the child is fully or partially clothed, or nude,"
seemed to "rest[] on the implicit assumption that a clothed
exhibition of the genitals is criminalized under the statute."
Id. at 823. Knox argues that our reliance on this authority was
misplaced because the determination of whether a certain
depiction visually displays the minor subject's genitals or pubic
area is a threshold inquiry required by the language of the
statute itself, whereas consideration of the Dost factors is
relevant only for the later determination of whether that
depiction is lascivious. See United States v. Arvin, 900 F.2d
1385, 1391 (9th Cir.), cert. denied, 498 U.S. 1024, 111 S. Ct.
672 (1991). Knox further contends that it is possible for a
minor subject to be fully clothed and still exhibit his or her
fully exposed genitals--e.g., a well directed side-angle camera
shot could reveal the genitals through an opening in the
subject's shorts or skirt.
40
Upon further consideration, we agree with Knox and the
Arvin court that the question whether the depiction at issue
visually exhibits the genitals or pubic area is a threshold
determination not necessarily guided by the Dost factors.
However, we do not agree that the Dost factors are completely
irrelevant to this threshold determination. For instance, the
first Dost factor, "whether the focal point of the visual
depiction is on the child's genitalia or pubic area," 636 F.
Supp. at 832, may play an important role in the determination of
whether the child subject's genitals or pubic area are on exhibit
within the meaning of the statute. Nevertheless, although the
fourth Dost factor arguably provides no support for our
interpretation of the statute as reaching lascivious depictions
of a child's fully covered genitals or pubic area, it is clearly
not inconsistent with that interpretation.
After giving further consideration to the language of
the statute, its legislative history, the underlying rationale
for the federal child pornography laws, and the brief of
Solicitor General submitted on behalf of the United States, we
hold that the statutory term "lascivious exhibition of the
genitals or pubic area," as used in 18 U.S.C. § 2256(2)(E), does
not contain any requirement that the child subject's genitals or
pubic area be fully or partially exposed or discernible through
his or her opaque clothing. The statutory language is clear and
contains no ambiguity. Therefore, the rule of lenity should not
be applied to defeat the clear intent of Congress to prohibit the
possession of child pornography to the maximum extent allowable
41
under the Constitution. See, e.g., National Org. for Women, Inc.
v. Scheidler, __ U.S. __, __, 114 S. Ct. 798, 806 (1994) ("the
rule of lenity applies only when an ambiguity is present; 'it is
not used to beget one'" (quoting United States v. Turkette, 452
U.S. 576, 587-88 n.10, 101 S. Ct. 2524, 2531 n.10 (1981));
Liparota v. United States, 471 U.S. 419, 427, 105 S. Ct. 2084,
2089 (1985) ("the rule of lenity is not to be applied where to do
so would conflict with the implied or expressed intent of
Congress"); United States v. Bramblett, 348 U.S. 503, 509-10, 75
S. Ct. 504, 508 (1955).0
V.
0
Knox contends that because his prosecution and conviction for
violating the federal child pornography laws was the first
involving materials which contain absolutely no nudity, the rule
of lenity must be applied. At the outset, we repeat that the
rule of lenity does not apply in this case because the statutory
language contains no ambiguity. We also reject this contention
because it misconceives the object of the rule of lenity and
would produce an absurd result. First, the application of the
rule of lenity is not dependent whatsoever on whether there have
been successful prosecutions under the statute at issue. Cf.,
e.g., Ratzlaf v. United States, __ U.S. __, __, 114 S. Ct. 655,
662-63 (1994) (Court applied the rule of lenity because of an
ambiguity in the statute, even though there had been many
previous successful prosecutions under the statute). The rule of
lenity "'comes into operation at the end of the process of
construing what Congress has expressed, not at the beginning as
an overriding consideration of being lenient to wrong-doers.'"
Russello v. United States, 464 U.S. 16, 29, 104 S. Ct. 296, 303
(1983) (quoting Callanan v. United States, 364 U.S. 587, 596, 81
S. Ct. 321, 326 (1961)); see also United States v. Pollen, 978
F.2d 78, 85 (3d Cir. 1992), cert. denied, __ U.S. __, 113 S. Ct.
2332 (1993). Second, if we were to agree with Knox's argument,
then the government would never be able to successfully prosecute
a person for violating a newly enacted criminal statute, nor
would the government be able to successfully proceed under a
theory different from that which has yielded convictions in the
past.
42
Interpreting an "exhibition of the genitals or pubic
area" to include a clothed display of these areas does not render
the statute unconstitutionally overbroad.0 The function of the
First Amendment overbreadth doctrine is to prevent broadly worded
statutes which control constitutionally unprotected conduct from
deterring constitutionally protected expression. Invalidating a
statute as overbroad, however, is an exceptional remedy and
should be employed sparingly and only as a last resort since it
is "strong medicine." Broadrick v. Oklahoma, 413 U.S. 601, 613,
93 S. Ct. 2908, 2916 (1973). Before a child pornography statute
is declared unconstitutional, the overbreadth must "not only be
real, but substantial as well, judged in relation to the
statute's plainly legitimate sweep." Id. at 615, 93 S. Ct. at
2918. The requirement of substantial overbreadth is equally
applicable to challenges that arise in defense of a criminal
prosecution. Ferber, 458 U.S. at 772-74, 102 S. Ct. at 3363.
In Ferber, the Supreme Court held that the New York
statute which criminalized the "lewd exhibition of the genitals"
was not constitutionally overbroad. Id. Although some protected
expression, ranging from medical textbooks to National Geographic
photographs, could possibly be reached by the statute, this tiny
fraction of materials within the statute's coverage could be
protected by case-by-case analysis. Id. Furthermore, the
Supreme Court has repeatedly emphasized that the constitutional
0
The term "pubic area" cannot be challenged as vague or overbroad
since Knox contends, and we agree, that this phrase describes a
precise anatomical region.
43
rights of adults to obtain, possess, or use sexually explicit
material may be limited in order to protect children from
exposure to these materials and from sexual exploitation. See
Ginsberg v. New York, 390 U.S. 629, 634-43, 88 S. Ct. 1274, 1277-
82 (1968) (the right to publish and distribute non-obscene
material may be limited by banning its sale to minors); Ferber,
458 U.S. at 756, 102 S. Ct. at 3354 ("States are entitled to
greater leeway in the regulation of pornographic depictions of
children" than in protecting against obscenity).
Knox's prediction that our interpretation of an
exhibition will result in prosecutors leafing through family
albums and church bulletins containing innocent pictures of fully
clothed children and pressing charges is unfounded. The limiting
principle in the statute is the requirement of lasciviousness.0 A
visual depiction of a child subject's genitals or pubic area,
whether the child is clothed or naked, must be lascivious in
order to be proscribed. Whether a depiction is lascivious is
essentially an inquiry into whether or not the material meets the
standard of lasciviousness as guided by the Dost factors.
Villard, 885 F.2d at 122; see supra note 10. Only a minuscule
fraction of all pictures of minor children will be sufficiently
sexually suggestive and unnaturally focused on the genitalia to
qualify as lascivious. Even fewer images where a minor's genital
0
The issue is not raised in this case, but we note that although
the meaning of lasciviousness is far from crystal clear, it is
not unconstitutionally vague or overbroad. See United States v.
O'Malley, 854 F.2d 1085, 1086-87 (8th Cir. 1988); Wiegand, 812
F.2d at 1243.
44
area is not fully exposed will constitute lascivious exhibitions
since the fact that a child's genital area is covered is a factor
militating against a finding of lasciviousness. Thus, including
scantily clothed displays of the genitals within the meaning of
an exhibition leaves the statute "directed at the hard core of
child pornography," Ferber, 458 U.S. at 773, 102 S. Ct. at 3363,
which results in leaving an indelible psychological scar on the
exploited child. Our interpretation simply declines to create an
absolute immunity for pornographers who pander to pedophiles by
using as their subjects children whose genital areas are barely
covered.
VI.
On remand, Knox again contends that insufficient
evidence was presented at trial for a trier of fact to have
found, beyond a reasonable doubt, that (1) the Nather tapes
traveled through the mail in interstate commerce; and (2) Knox
"knowingly" received child pornography through the mail and
"knowingly" possessed three pornographic videotapes. Generally,
this court must examine the evidence as a whole in the light most
favorable to the government, and must sustain a conviction if
there is substantial evidence to support it. United States v.
Carr, No. 93-1796, 1994 WL 237007, at *4-5 (3d Cir. June 3,
1994). When we previously rejected Knox's arguments on this
point, we noted that Knox had not timely filed his post-trial
motion for acquittal, and thus indicated that the sufficiency of
evidence issues might be reviewed only for plain error. Knox,
45
977 F.2d at 824. Nevertheless, we concluded that we did not need
to determine whether "the plain error test and the sufficiency of
evidence standard are essentially equivalent inquiries" because
the government fulfilled the more stringent standard of
establishing that the evidence was sufficient "to support the
district court's finding that the Nather tapes traveled through
the mail and that Knox knowingly received and possessed those
films." Id.
In its brief submitted to the Supreme Court, the
government indicated that we were mistaken in reviewing the
evidence only for plain error. Gov't Sup. Ct. Brief (Sept. 1993)
at 21-22 n.10. We acknowledge that the analysis following our
introductory paragraph quoted above was somewhat unclear as to
whether we were applying the plain error or sufficiency of
evidence test. We now clarify the conclusion expressed in our
prior opinion that the government did indeed introduce sufficient
evidence for the district court to conclude beyond a reasonable
doubt that Knox knowingly received the Nather films and that
those films traveled through the mail.
To establish interstate mailing, the government
introduced evidence that Knox rented a mailbox under a fictitious
name and that he received other pornographic materials at that
mailbox. When agents searched Knox's apartment pursuant to a
valid search warrant, they discovered advertisements from Nather
with checkmarks next to several videotapes and envelopes, pre-
addressed to Nather, with forms to order Nather tapes. One of
the videos marked in the catalog was included as a segment of a
46
compilation tape found in Knox's apartment. A carbon copy of a
$62 money order payable to Nather was also seized from Knox's
apartment. Sixty-two dollars is the approximate price of a
single Nather tape. Knox is correct that the government never
introduced direct evidence that Nather mailed tapes to Knox's
rented mailbox. A trier of fact, however, may consider direct
and circumstantial evidence and the reasonable inferences to be
drawn therefrom.
The above facts provide strong circumstantial support
that Nather, a Nevada mail order video company without any
offices in Pennsylvania, at some point utilized the postal system
to cause the tapes it distributes to be discovered in Knox's
apartment in Pennsylvania. Cf. Turner v. United States, 396 U.S.
398, 415-17, 90 S. Ct. 642, 652-53 (1970) (although some heroin
is produced in this country, the vast majority of heroin is
produced abroad; thus, jury could permissibly infer, beyond a
reasonable doubt, that defendant possessed a smuggled drug). The
circumstantial evidence was sufficient for the district court to
conclude beyond a reasonable doubt that the Nather films traveled
through the interstate mails.
The record also contains sufficient evidence for the
district court to conclude beyond a reasonable doubt that Knox
"knowingly" received and possessed the Nather tapes. Knox
maintains that the absence of nudity in the films and the
disclaimers in the Nather brochures that the videos were legal to
purchase and own disproves the mens rea element of § 2252. We
have previously held that the mens rea requirement of § 2252
47
"does not require that a recipient of child pornography know the
precise contents of such materials." United States v. Brown, 862
F.2d 1033, 1036 (3d Cir. 1988). In Brown, the defendant ordered
one film, but accidentally received a different tape. Since the
defendant knew the video he requested was child pornography, we
deemed it irrelevant that he did not know the exact contents of
the substituted tape actually mailed to him.
Knox's argument in this case is somewhat different. He
claims that although he knew the contents of the Nather tapes, he
was unaware that the videos were child pornography and believed
they were legal to own. To address this contention, we look to
the Supreme Court's interpretation of a strikingly similar
statute for guidance. To fulfill the "knowingly" requirement of
18 U.S.C. § 1461 (the obscenity law concerning adults),0 the
Supreme Court held that the prosecution need only show that the
defendant had knowledge of the contents, character, and nature of
the materials. Hamling v. United States, 418 U.S. 87, 123, 94 S.
Ct. 2887, 2910 (1974). To require proof that the defendant knew
the materials were obscene, and thus illegal to distribute, would
allow defendants to avoid prosecution by claiming ignorance of
the relevant law. Id. It would be ironic to construe the same
word, "knowingly," in the analogous child pornography law as more
lenient to criminal defendants since the purpose for enacting the
0
Title 18 U.S.C. § 1461 provides in pertinent part: "Whoever
knowingly uses the mails for the mailing, carriage in the mails,
or delivery of anything declared by this section . . . to be
nonmailable . . . shall be fined not more than $5,000 or
imprisoned not more than five years, or both . . . ."
48
child pornography statute was to create more stringent regulation
for child pornography than already existed through the generally
applicable obscenity laws. Therefore, to fulfill the knowledge
element of § 2252, a defendant simply must be aware of the
general nature and character of the material and need not know
that the portrayals are illegal. See United States v. Moncini,
882 F.2d 401, 404 (9th Cir. 1989) (no need to prove knowledge of
illegality under § 2252); United States v. Tolczeki, 614 F. Supp.
1424, 1429 (N.D. Ohio 1985) (same). The child pornography laws
would be eviscerated if a pedophile's personal opinion about the
legality of sexually explicit videos was transformed into the
applicable law.
There is no doubt that Knox was aware of the nature of
the Nather tapes when he received them. Newsletters from Nather
found in Knox's apartment described the contents of the films--
"girls between the ages of 11 and 17 showing so much panty and
ass you'll get dizzy . . . so revealing it's almost like seeing
them naked"--and the video's intended effects--"Sassy Sylphs will
blow your mind so completely you'll be begging for mercy." Knox
handwrote his own descriptions of the Nather films on the outside
of the boxes. For instance, on the Nather II tape, Knox wrote
"13-year old flashes" followed by "hot." Knox characterizes the
second vignette as "15 year old shows nipple." Both Nather's and
Knox's descriptions of the tapes clearly demonstrate that Knox
was aware that the videotapes contained sexually oriented
materials designed to sexually arouse a pedophile. Sufficient
evidence was presented at the bench trial to support a finding
49
that Knox was aware of the nature of the Nather tapes, and
therefore knowingly possessed and received them.
Even if a reasonable mistake as to the legality of the
material was recognized as a defense, the language of the statute
is clear that nudity is not a prerequisite for a lascivious
exhibition. Additionally, relying on Nather's disclaimer is
tantamount to asking a hard core pornographer for legal advice as
to whether the material he earns a living by selling is legal.
Nather's disclaimer could not reasonably lead Knox to believe
that the videotapes were legal. If anything, the need to profess
legality should have alerted Knox to the films' dubious legality.
VII.
In sum, after further consideration of the statutory
language, legislative history, the purpose of Congress in passing
the federal child pornography statute, and the Solicitor
General's brief submitted in the Supreme Court, we hold that a
"lascivious exhibition of the genitals or pubic area" pursuant to
18 U.S.C. § 2256(2)(E) encompasses visual depictions of a child's
genitals or pubic area even when these areas are covered by an
article of clothing and are not discernible. Our interpretation
of the statutory language does not render the statute
unconstitutionally overbroad since the requirement of
lasciviousness limits the proscribed depictions to
constitutionally unprotected expression. Finally, there was
sufficient record evidence for the district court to conclude
50
beyond a reasonable doubt that Knox knowingly received and
possessed the videotapes and that the films traveled through
interstate mail. The judgment of conviction will therefore be
affirmed.
51