U.S. v. Whorley

Page 693

386 F.Supp.2d 693

UNITED STATES of America, v. Dwight Edwin WHORLEY, Defendant.

No. CRIM.A. 3:05CR114-HE.

United States District Court, E.D. Virginia, Richmond Division.

August 18, 2005.

Frank W. Dunham, Jr., Robert James Wagner, Office of the Public Defender, Richmond, VA, for Dwight Edwin Whorley.

Sara Elizabeth Flannery, Office of the U.S. Attorney, Richmond, VA, Damon A. King, U.S. Department of Justice, Washington, DC, for United States of America.

MEMORANDUM OPINION (Defendant's Motions to Dismiss Superceding Indictment)

HUDSON, District Judge.

This matter is before the Court on Defendant Dwight Edwin Whorley's Motion to Dismiss Superceding Indictment and Motion to Dismiss Counts of Superceding Indictment for Failure to Allege an Offense. Both sides have submitted memoranda in support of their respective positions and this Court heard oral argument on August 3, 2005. At the close of oral argument, the Court denied the defendant's Motion to Dismiss on the grounds of multiplicity. The Court also concluded that the defendant's motion to limit units of prosecution involved a mixed question of law and fact and, therefore, its resolution should be deferred until the close of the government's evidence at trial.

The Defendant is charged in a seventy-five (75) count Superceding Indictment ("the Indictment") with a number of offenses arising from the downloading of digital depictions of Japanese anime cartoons of a prepubescent minor, and other child pornography, from the internet onto a computer at the Virginia Employment Commission, a public office, and the receipt of obscene e-mails from an interactive computer service. The defendant challenges the constitutionality of the underlying statutes, both facially and as applied, and moves to dismiss specific counts of the Indictment for failing to allege an offense. The government counters that all statutes are constitutionally sound and that all charges have been appropriately pleaded.

In essence, Counts One (1) through Twenty (20) of the Indictment charge the defendant with knowingly receiving or downloading digital depictions of obscene Japanese anime cartoons from the internet, which had been transported in interstate commerce, in violation of Title 18 of the United States Code § 1462(a) (hereinafter "18 U.S.C."). In Counts Twenty-One (21) through Forty (40), it is alleged that the defendant knowingly received in interstate commerce obscene cartoons that depict a minor engaged in sexually explicit conduct in violation of § 1466(a)(1). Counts Forty-One (41) through Fifty-five (55) contend that the defendant knowingly received or attempted to receive visual depictions that were transported in interstate commerce, the production of which involved the use of a minor engaged in sexually explicit conduct, in violation of § 2252(a)(2). Finally, Counts Fifty-six (56) through Seventy-five (75) charge the defendant with receiving obscene e-mails in interstate commerce in violation of § 1462.

I. The Constitutional Challenge

The defendant's constitutional challenge focuses on 18 U.S.C. §§ 1462(a) and 1466A(a)(1). Section 1462(a) generally prohibits the knowing use of any interactive computer service for carriage in interstate commerce of any specified obscene material. Section 1466A proscribes the use of the same media to transfer certain obscene visual representations of the sexual abuse of children. The defendant argues that prohibiting the receipt of obscene materials from the internet for private viewing, violates the defendant's privacy interests protected by the Due Process Clause of the Fifth Amendment to the United States Constitution and his First Amendment protections, as articulated in Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). He also contends that the statutes are unconstitutionally broad by "unfairly expos[ing] unwary internet surfers to criminal sanctions without fair notice" and are impermissibly vague.

In Stanley, the United States Supreme Court carved out a narrow zone of constitutionally protected privacy which allows for the personal possession and perusal of obscenity in one's home. Id. at 565; 394 U.S. 557, 89 S.Ct. 1243, 1248, 22 L.Ed.2d 542 (1969). Stanley implicated "the right ... to read or observe what he pleases — the right to satisfy his intellectual and emotional needs in the privacy of his own home." 394 U.S. at 565, 89 S.Ct. 1243. The zone of privacy created in Stanley, however, is limited. The Supreme Court has consistently rejected constitutional protection for obscene materials outside the home. See United States v. 12 200-Ft. Reels of Super 8mm. Film, 413 U.S. 123, 126-29, 93 S.Ct. 2665, 2668-69, 37 L.Ed.2d 500 (1973). The Court has also declined to extend the privacy rights enunciated in Stanley to create a correlative right to receive, transport or distribute obscene materials. United States v. Orito, 413 U.S. 139, 141, 93 S.Ct. 2674, 2677, 37 L.Ed.2d 513 (1973). The immediate case involved the alleged receipt of legally offensive materials from the internet. Clearly, under no reasonable construction would the boundaries of Stanley extend to the downloading of allegedly obscene materials from a computer in a government office. It is important to keep in mind that the offensive conduct at issue is the use of interstate commerce for an illegal purpose.¹

The defendant's primary argument with respect to Counts Fifty-Six (56) through Seventy-Five (75), which pertain to obscene e-mails, is equally unpersuasive. Since the communication medium from which the e-mail is transmitted and received constitutes interstate commerce, it is appropriate for governmental regulation. Orito, 413 U.S. at 143, 93 S.Ct. at 2677. The linchpin of the prohibited conduct is the use of interstate commerce to access obscene materials. United States v. Thirty-Seven Photographs, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971).

The defendant's argument, in effect, invites this Court to extend the zone of privacy recognized in Stanley to include the contents of e-mails. However, the constitutional inquiry at hand does not turn on an individual right of privacy, but on the government's recognized right to regulate interstate commerce. The United States Code is replete with constitutionally sound statutes that criminalize the use of various mechanisms of interstate commerce to facilitate unlawful activity. For example, Section 1461 of Title 18, making it a crime to transport obscene materials in the United States Mail, has repeatedly survived similar challenges. See Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1977); United States v. Reidel, 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813 (1971). Another example of a constitutionally sound analogous statute is 21 U.S.C. § 843(b), which prohibits any use of a communication facility to further a drug transaction. See U.S. v. Rodgers, 755 F.2d 533 (7th Cir.1985), cert. denied 473 U.S. 907, 105 S.Ct. 3532, 87 L.Ed.2d 656; U.S. v. Davis, 929 F.2d 554 (10th Cir.1991) (upholding a conviction under § 843(b) where defendant did not initiate phone calls, but merely received them, to facilitate illegal activity). For this Court to adopt the defendant's position and expand the contours of the zone of privacy articulated in Stanley to include the transportation of material in interstate commerce would be a clear break with long-established precedent. Even in the context of recent technological advances, this Court declines to do so.

The next constitutional front on which Defendant assails §§ 1462 and 1466A, is adequacy of notice under the Due Process Clause. This argument is closely allied with Defendant's contention that the statutes are unenforceable and vague. To avoid being unconstitutionally vague, a statute must provide clear and adequate notice of the activity it prohibits. This, in theory, provides a check against arbitrary enforcement. Kolender v. Lawson, 461 U.S. 352, 361, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983).

The defendant's position is best captured by a portion of his Memorandum in Support of the Motion to Dismiss Superceding Indictment. "Notice must be provided in § 1466A(a)(1) of exactly what a person may and may not receive. A person of ordinary intelligence cannot be expected, when surfing the internet, to have an intimate understanding of obscenity law, to the extent that he or she can discern whether one website or one image is constitutionally protected or not." The Supreme Court has never demanded that level of exactitude. Miller v. California, 413 U.S. 15, 27-28 n. 10, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).

It appears from the language in the Indictment that Counts One (1) through Forty (40) involve cartoons depicting prepubescent minors engaged in sexually explicit behavior. The universe of child pornography is comprised of materials in two broad categories, those involving depictions of an actual child, and the others portraying simulated representations. The former class of materials need not satisfy the legal definition of obscene to be banned. See New York v. Ferber, 458 U.S. 747, 758, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). This category enjoys no First Amendment protection because the underlying production necessary involves the sexual exploitation of children. Ashcroft v. Free Speech Coalition, 535 U.S. 234, 240, 122 S.Ct. 1389, 1396, 152 L.Ed.2d 403 (2002). The latter class of materials, involving simulated images of children engaged in a sexually explicit conduct, can only be prohibited if they meet the definition of obscenity set forth in Miller. See also Ashcroft, 535 U.S. at 240, 122 S.Ct. at 1396 (2002).

Since the materials at issue in Counts One (1) through Forty (40) do not depict actual children, they will be measured by the obscenity standard in Miller. Attacks on the Miller standard, claiming that it is unconstitutionally vague, have been uniformly rejected by the United States Court of Appeals for the Fourth...