U.S. v. Handley

564 F.Supp.2d 996

UNITED STATES of America, Plaintiff, v. Christopher S. HANDLEY, Defendant.

No. 1:07-cr-00030-JEG.

United States District Court, S.D. Iowa.

July 2, 2008.

COPYRIGHT MATERIAL OMITTED

Paul D. Scott, Cook Brown & Scott PLC, Clive, IA, Eric A. Chase, The Chase Law Group PC, Studio City, CA, for Defendant.

Craig P. Gaumer, U.S. Attorney's Office, Des Moines, IA, for Plaintiff.

ORDER

JAMES E. GRITZNER, District Judge.

This matter is before the Court on Defendant's Motion to Dismiss, which the Government resists. Hearing was held on the motion on June 24, 2008. Attorneys Eric Chase and Paul Scott were present for the Defendant. Assistant United States Attorney Craig Gaumer and Department of Justice Trial Attorney Elizabeth Yusi represented the Government. The matter is now fully submitted for review.

SUMMARY OF MATERIAL FACTS

On May 8, 2007, Defendant Christopher Handley (Defendant) was charged in a three-count indictment with receipt of obscene visual representations of the sexual abuse of children in violation of 18 U.S.C. § 1466A(a) (count one) and possession of obscene visual representations of the sexual abuse of children in violation of 18 U.S.C. § 1466A(b) (count two). Count three was a notice of forfeiture. On October 17, 2007, the Grand Jury returned a superseding indictment, charging Defendant with receipt of obscene visual representations of the sexual abuse of children in violation of 18 U.S.C. § 1466A(a) (count one), possession of obscene visual representations of the sexual abuse of children in violation of 18 U.S.C. § 1466A(b) (counts two through four), and mailing obscene matter in violation of 18 U.S.C. §§ 1461, 2 (count five). Count six was a notice of forfeiture.

The superseding indictment describes the images at issue in counts one through four as follows:

one or more drawings or cartoons, that depict a minor engaging in sexually explicit conduct, and is obscene, and depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between person of the same or opposite sex, which lacks serious literary, artistic, political, or scientific value.

The superseding indictment describes the images at issue in count five as "a copy of a book containing visual depictions, namely drawings and cartoons, that depicted graphic bestiality, including sexual intercourse, between human beings and animals such as pigs, monkeys, and others." Defendant states all of the images at issue in counts one through five are drawings from Japanese anime comic books that were produced either by hand or by computer, and the drawings depict fictional characters. Defendant states there is no indication the drawings represent or refer to any actual persons, either minor or adult, and the drawings are purely a product of the artist's imagination.

On May 5, 2008, Defendant filed this motion to dismiss, arguing the statute upon which the indictment is based violates the First and Fifth Amendments of the United States Constitution and that the facts alleged do not support an indictment for violations of 18 U.S.C. §§ 1466A, 1461, and § 2.

The Government resists, asserting the materials at issue in this case are subject to and properly charged under statutes that constitutionally criminalize obscene materials. The Government argues Defendant's motion to dismiss should be denied.

APPLICABLE LAW AND DISCUSSION

I. First Amendment Challenge to 18 U.S.C. § 1466A(a) & (b).

A. Limited Right to Possess Obscene Materials.

Count one charges a violation of 18 U.S.C. § 1466A(a), which states,

Any person who, in a circumstance described in subsection (d), knowingly produces, distributes, receives, or possesses with intent to distribute, a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that — (1)(A) depicts a minor engaging in sexually explicit conduct; and (B) is obscene; or (2)(A) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; and (B) lacks serious literary, artistic, political, or scientific value; or attempts or conspires to do so, shall be subject to the penalties provided in section 2252A(b)(1), including the penalties provided for cases involving a prior conviction.

Counts two through four charge a violation of 18 U.S.C. § 1466A(b), which states,

Any person who, in a circumstance described in subsection (d), knowingly possesses a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that — (1)(A) depicts a minor engaging in sexually explicit conduct; and (B) is obscene; or (2)(A) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; and (B) lacks serious literary, artistic, political, or scientific value; or attempts or conspires to do so, shall be subject to the penalties provided in section 2252A(b)(2), including the penalties provided for cases involving a prior conviction.

Section 1466A(a) criminalizes production, distribution, receipt, or possession with intent to distribute, whereas section 1466A(b) criminalizes simple possession.¹ The term `sexually explicit conduct' has the meaning given the term in section 2256(2)(A) or 2256(2)(B)." Id. § 1466A(f)(2). "`[S]exually explicit conduct' means actual or simulated — (i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between person of the same or opposite sex; (ii) bestiality; (iii) masturbation; (iv) sadistic or masochistic abuse; or (v) lascivious exhibition of the genitals or pubic area of any person." Id. § 2256(2)(A).

"[S]exually explicit conduct" means — (i) graphic sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, or lascivious simulated sexual intercourse whether the genitals, breast, or pubic area of any person is exhibited; (ii) graphic or lascivious simulated; (I) bestiality; (II) masturbation; or (III) sadistic or masochistic abuse; or (iii) graphic or simulated lascivious exhibition of the genitals or pubic area of any person.

18 U.S.C. § 2256(2)(B).

Defendant argues counts one through four of the superseding indictment, which each charge a violation of 18 U.S.C. § 1466A, should be dismissed because private possession of obscene materials is a right protected by the First Amendment. The Constitution prohibits "making mere private possession of obscene material a crime." Stanley v. Georgia, 394 U.S. 557, 568, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). The limited right to possess obscene materials in the privacy of one's own home recognized in Stanley depended not on First Amendment grounds, but on the right to privacy in the home found in the Fourth Amendment. United States v. 12 200-Foot Reels of Super 8mm. Film, 413 U.S. 123, 126, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973).

Obscene materials are afforded no protection under the First Amendment. Id.; see also United States v. Williams, ___ U.S. ___, 128 S.Ct. 1830, 1835-36, 170 L.Ed.2d 650 (2008) ("We have long held that obscene speech — sexually explicit material that violates fundamental notions of decency — is not protected by the First Amendment."); Flynt v. Ohio, 451 U.S. 619, 622, 101 S.Ct. 1958, 68 L.Ed.2d 489 (1981) ("Obscene material, properly defined, is beyond the protection of the First Amendment."); Miller v. California, 413 U.S. 15, 23, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) ("This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment."); Roth v. United States, 354 U.S. 476, 492-93, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) ("holding obscenity is not expression protected by the First Amendment.").

Defendant is not charged in counts one through four with mere private possession of obscene materials. Defendant is charged in count one with receipt of obscene materials that were transported in interstate commerce and in counts two through four with possession of obscene materials that had been transported in interstate commerce.² While mere possession of obscene materials within the privacy of an individual's own home is a right protected by the Fourth Amendment, the zone of privacy recognized in Stanley is not unlimited.

We are not disposed to extend the precise, carefully limited holding of Stanley to permit importation of admittedly obscene materials simply because it is imported for private use only. To allow such a claim would be not unlike compelling the Government to permit importation of prohibited or controlled drugs for private consumption as long as such drugs are not for public distribution or sale. We have already indicated that the protected right to possess obscene material in the privacy of one's home does not give rise to a correlative right to have someone sell or give it to others. Nor is there any correlative right to transport obscene material in interstate commerce.

12 200-Foot Reels of Super 8mm. Film, 413 U.S. at 128, 93 S.Ct. 2665 (citations omitted); see also United States v. Orito, 413 U.S.. 139, 141, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973) (recognizing Stanley has firmly established the right to possess obscene material in the privacy of the home but rejecting the argument that Stanley creates a correlative right to receive, transport, or distribute obscene materials in interstate commerce); United States v. Whorley, 386 F.Supp.2d 693, 695 (E.D.Va.2005) (recognizing the zone of privacy created in Stanley was limited and did not extend...