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CHIN v. UNITED STATES

July 28, 1993

EDWARD CHIN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.



The opinion of the court was delivered by: REENA RAGGI

 RAGGI, District Judge:

 Edward Chin, who was convicted in 1990 after a jury trial of two counts of transporting child pornography in foreign and interstate commerce, 18 U.S.C. § 2252(a)(1) (1988 & Supp. III 1991), and whose conviction was affirmed the following year by the Court of Appeals, United States v. Chin, 934 F.2d 393 (2d Cir. 1991), now petitions this court to vacate his conviction pursuant to 28 U.S.C. § 2255 (1988). At trial, Chin had raised an entrapment defense. The critical issue in dispute was his predisposition to commit the crimes charged. Chin here contends that the evidence adduced was insufficient as a matter of law to establish predisposition. Having reviewed the submissions of the parties, and re-read the trial transcript, this court finds that Chin's claim is without merit. The petition to vacate the conviction is denied.

 Factual Background

 The facts of this case are viewed in the light most favorable to the government, as they must be when a challenge is made to the sufficiency of the evidence supporting a jury verdict. See, e.g., Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); United States v. Weiss, 930 F.2d 185, 191 (2d Cir.), cert. denied, 116 L. Ed. 2d 100, 112 S. Ct. 133 (1991).

 The case arose, as do many child pornography prosecutions, out of an undercover investigation conducted by the United States Postal Service. In order to identify persons interested in sending or receiving child pornography through the mails, postal inspectors set up fictitious companies and pen pal clubs. Sometime in mid-1986, Edward Chin received a solicitation letter from one of these entities, Far Eastern Trading Company. *fn1"

 
As many of you know, much hysterical nonsense has appeared in the American media concerning "pornography" and what must be done to stop it from coming across your borders. This brief letter does not allow us to give much comments; however, why is your government spending millions of dollars to exercise international censorship while tons of drugs, which makes yours the world's most crime ridden country are passed through easily. We have read the comments of Mr. Von Rabb of your Customs Service concerning the efforts of his agents to find "children's pornography" and we find that many of you are denied a product because of that agency. After conversation with enlightened Americans, we have found that if material is given to your post without a Customs inspection, a search warrant must be gotten in order to open your mail.
 
For those of you who have enjoyed youthful material from publishers such as COQ, Color Climax, Rodox and others, we have devised a method of getting these to you without prying eyes of U.S. Customs seizing your mail. All material that you order from our company will be sent to you through our branch office in the U.S. Virgin Islands. After consultations with American solicitors, we have been advised that once we have posted our material through your system, it cannot be opened for any inspection without authorization of a judge.
 
If you want further information, please complete the following coupon and disclaimer and post it to the listed address.

 Petitioner's Mem. (App. D).

 Mr. Chin, who was approximately 28-years of age at the time he received this letter, is a highly-intelligent man. He earned a Masters Degree in Business Administration from the Wharton School of Finance, and, the time of trial, was director of large scale projects for the New York City Department of Housing Preservation and Development. By his own admission, his interest in pornography dated to his teenage years. Originally his purchases were limited to adult magazines, acquired in Times Square. By his late teens, however, he was fantasizing about female juveniles engaged in sexually explicit activity. Although Mr. Chin claimed at trial never to have purchased any child pornography before receiving the Far Eastern Trading Company letter, this testimony was contradicted by his own post-arrest statements admitting his 1984 acquisition in Italy of "Sweet Linda," a child pornography magazine found in his briefcase at the time of his arrest. Chin's passport confirmed a trip to Milan in July of 1984. *fn2"

 In the fall of 1986, postal inspectors directed another solicitation from a fictitious company, Candy's Love Club, to petitioner.

 
Are you an individual who believes in the right to choose his own sexual preference? If so, then join the club! Take a few minutes and help us by answering the attached questionnaire. Do not identify yourself unless you desire to join the club and receive correspondence from us. Our purpose is to protect our first amendment right to read whatever we please. Help our common cause and let your voice be heard.
 
WE WANT SUPPORT NOT YOUR MONEY!
 
If our supplier of mailing lists made a mistake by including your name then please disregard this material.

 Petitioner's Mem. (App. F).

 Chin accepted the invitation to join the club and returned a completed questionnaire. Of seventeen listed categories of sexual material, he identified his first and second areas of interest as (1) pre-teen heterosexual sex, and (2) heterosexual sex between children 13 to 16 years old. Chin further responded that he usually obtained material pertaining to his interests in Europe.

 Thereafter, Chin received newsletters from the club, containing advertisements from persons interested in a variety of sexually explicit material, including child pornography. *fn3" Petitioner responded to ten advertisements, indicating an interest in trading photographs, videos, or magazines of pre-teen and teen-age girls.

 In May of 1988, a postal inspector posing as one of the advertisers, "Ted from Medford," began corresponding with Chin. His initial letter stated:

 
In response to your inquiry I have many hot photos of girl subjects both white and oriental, pre-teen and teen. I also have some magazines of Orientals by way of Bangkok, Thailand. I'll match whatever you send in quantity and quality. One hot photo gets you one in return. Same with the mags. I reserve the right to return anything that I dislike back to you. You of course have the same right. Discretion assured and expected in return. *fn4"

 Trial Tr. at 33. Chin replied:

 
I'm very interested in what you have to offer in the way of hot photos and magazines. I also have some (pre-teen and teen white and Oriental). Please send me a list of what you have (titles, descriptions or whatever you feel is appropriate). As soon as I receive it, (so that I can get a better idea of what I should send you to try to exchange for), I will send you a list of my material and we'll take it from there. Discretion is of the utmost importance.

 Trial Tr. at 32.

 When "Ted" wrote back describing his collection of child pornography, petitioner pursued the matter.

 
From the description of your materials it sounds like we may have some common interests. My collection is nowhere as extensive as yours. I have a few issues of Lolita, including several of the special color issues. I also have a copy of a magazine devoted to a single subject, very high quality.
 
And the magazines are listed Lolita number 8, 9, 35 and 39 and magazine Sweet Linda.
 
I am very interested in Orientals in cases where you could definitely tell they're under 14. Since my collection is so limited, would you be open to any sort of arrangement? (Renting? [I'd be willing to pay you a fee] Selling?) How did you obtain your materials? I'd love to know.

 Trial Tr. at 34-35.

 After several months, "Ted" responded, suggesting a "loan" arrangement. He offered two of his items, asking petitioner to send him the "Sweet Linda" magazine. Petitioner did not respond immediately for reasons he explained in his next letter.

 
This time it's my turn to apologize for not writing back sooner. I'm still trying to decide whether or not I want to go through with the arrangement that you had suggested. I am extremely cautious for two reasons. As you may have read in the last issue of CLC, there was a government sting operation a number of months ago (Far Eastern Trading). I had received the brochures and had even sent back a money order for one of the magazines. Of course I didn't receive anything. I was even naive enough to send a follow-up letter to Far Eastern to inquire about my order. Thank god I never got ...

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