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November 5, 1996

MICHAEL LAMB, Defendant.

The opinion of the court was delivered by: MUNSON

 Now before the court are omnibus pretrial motions in this case concerning the receipt, transmission, and possession of computer images of child pornography. The government and defendant consented to the court deciding these motions on submission. Doc. 33. The following constitutes the court's memorandum-decision and order in this matter.


 Defendant is charged in the first superseding indictment, Doc. 30, with twenty-three counts of receiving by computer transmission sexually explicit images of children, in violation of 18 U.S.C. § 2252(a)(2). Counts 24-48 accuse defendant of sending such images by computer, in violation of 18 U.S.C. § 2252(a)(1). Count 49 charges him with possession of three or more visual images of child pornography, punishable under 18 U.S.C. § 2252(a)(4). Finally, the government seeks forfeiture of defendant's computer system.

 This prosecution is the product of a comprehensive operation conducted by the Federal Bureau of Investigation known as "Innocent Images." The interest of federal law enforcement officers in the flow of child pornography over the Internet was evidently piqued by the much-publicized case involving the abduction of a ten-year old Maryland boy. See Ex. E att'd to Def.'s Notice of Motion, Doc. 22, at 10-11. Bureau agents investigating the matter discovered that computer on-line services were being used to entice children into sexual encounters with adults, and that child pornography was being distributed regularly by computer. The Baltimore office of the FBI subsequently spearheaded an investigation wherein law enforcement agents would sign on to computer services and attempt to identify traffickers of image files containing child pornography.

 Evidence against defendant in the case at bar originated from the Florida Department of Law Enforcement. Ex. F att'd to Def.'s Notice of Motion, Doc. 22, at 14-17. A special agent of that department and a confidential informant signed on to the America OnLine service ("AOL") in an undercover capacity and obtained image files depicting children engaged in explicit sexual conduct. An individual using the screen names *fn1" "Josh6979" and "JoMil5" was involved in the receipt and transmission of over 100 child pornography images between August 1, 1994 and April 9, 1995. The individual's AOL account number was also learned.

 A federal grand jury issued a subpoena to AOL's headquarters in Virginia to discover information about the subscriber corresponding to that account number and to the pertinent screen names. On March 30, 1995 AOL identified the subscriber as the defendant. Id. at 17. Further investigation confirmed that a computer equipped with a modem was located in defendant's home in Marcellus, New York. Id. at 18-20.

 On September 13, 1996 federal agents executed search warrants at 125 homes and businesses in furtherance of Innocent Images. One home searched was Michael Lamb's. During the execution of the search he was interviewed. Defendant made potentially incriminating statements and wrote out and signed a statement. See Ex. A att'd to Def.'s Notice of Motion, Doc. 22. A search of the hard drive on defendant's computer revealed that it contained many child pornography image files. Adult pornographic materials were also found at defendant's house, along with marijuana. Defendant was later indicted and arrested.


 Defendant seeks omnibus pretrial relief in the following particulars: dismissal of the indictment on the grounds that the statute at issue is unconstitutionally overbroad, is overbroad as applied, is void for vagueness, and violates principles of substantive and procedural due process; motion for a pretrial evidentiary hearing to determine whether the images in the indictment are of actual children; suppression of evidence seized pursuant to the warrant executed to search AOL's Virginia offices; suppression of evidence seized pursuant to the warranted search of his home; dismissal of counts 6,9, and 32 as impossible; exclusion of adult pornography from being offered at trial; exclusion of the use of prior bad acts at trial; discovery of the government's role in the transmission and creation of the images at issue; individually sequestered voir dire; exclusion of any contemplated expert testimony on pedophilia; disclosure of any Federal Rule of Evidence 404 or 609 material the government intends to introduce at trial; and dismissal of the indictment based on the government's "outrageous conduct." Defendant has withdrawn his motion to suppress his statements to the FBI as violative of the Fifth Amendment. However, he has also moved to exclude the statements as a fruit of the allegedly unconstitutional search of his home. The government cross-moves for reciprocal discovery. The requested relief is discussed below.

 A. Constitutionality of Statute

 Any facial challenge to a statute must naturally begin with the language of the law itself:

(a) Any person who --
(1) knowingly transports or ships in interstate or foreign commerce by any means including by computer or mails, any visual depiction, if --
(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
(B) such visual depiction is of such conduct;
(2) knowingly receives, or distributes, any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, or knowingly reproduces any visual depiction for distribution in interstate or foreign commerce by any means including by computer or through the mails, if --
(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
(B) such visual depiction is of such conduct;
(4) . . .
(B) knowingly possesses 3 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which was produced using materials which have been mailed or so shipped or transported, by any means including by computer, if --
(i) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
(ii) such visual depiction is of such conduct;
shall be punished as provided in subsection (b) of this section.

 18 U.S.C. § 2252(a)(1), (2), & (4)(B).

 Defendant challenges the statute he is charged under as unconstitutionally overbroad and vague. As these arguments are legally intertwined, the court treats them together. See Local 189 Int'l Union of Police Ass'ns v. Barrett, 524 F. Supp. 760, 765 (N.D. Ga. 1981). The court then briefly addresses defendant's claim that the rule in Stanley v. Georgia, 394 U.S. 557, 22 L. Ed. 2d 542, 89 S. Ct. 1243 (1968) permits an individual to possess child pornography in the privacy of his home. The substantive and procedural due process challenges to the statute are addressed at the end of this section.

 1. Overbreadth and Vagueness

 A statute is overbroad under the First Amendment when in addition to proscribing activities which may properly be forbidden, it also sweeps within its coverage activity protected by the guarantee of free speech. E.g., Cantwell v. Connecticut, 310 U.S. 296, 304, 84 L. Ed. 1213, 60 S. Ct. 900 (1940); Thornhill v. Alabama, 310 U.S. 88, 97-98, 84 L. Ed. 1093, 60 S. Ct. 736 (1940). The overbreadth doctrine is powerful in free expression cases, as the movant need not demonstrate that his or her conduct was protected, as long as the court is persuaded that the statute infringes upon an unacceptable level of activity privileged under the First Amendment. See Kunz v. New York, 340 U.S. 290, 95 L. Ed. 280, 71 S. Ct. 312 (1951). Only a statute that is substantially or facially overbroad however will be struck in its entirety. Broadrick v. Oklahoma, 413 U.S. 601, 615, 37 L. Ed. 2d 830, 93 S. Ct. 2908 (1973). Defendant contends that the statute in question strikes indiscriminately at categories of expression that cannot be punished consonant with the First Amendment.

 Defendant also raises the related doctrine of vagueness. A statute will be held void for vagueness if the proscribed activity is so unclearly defined that persons of common intelligence must necessarily guess at it meaning and differ as to its application. Connally v. General Construction Co., 269 U.S. 385, 391, 70 L. Ed. 322, 46 S. Ct. 126 (1926). Laws that are overbroad and/or vague share common vices. First, the essentially unfettered discretion granted to police officers in applying them leads to selective enforcement. See Kolender v. Lawson, 461 U.S. 352, 358, 75 L. Ed. 2d 903, 103 S. Ct. 1855 (1983) (vagueness; statute struck because it vested "virtually complete discretion" in the police); Kunz, 340 U.S. at 295 (overbreadth; "no appropriate standards" to guide officials). Second, uncertainty as to just what is prohibited chills the speech rights of the citizenry. See Arnett v. Kennedy, 416 U.S. 134, 231, 40 L. Ed. 2d 15, 94 S. Ct. 1633 (1973) (Marshall, J., dissenting) (overbreadth) *fn2" ; John E. Nowak & Ronald D. Rotunda, Constitutional Law § 16.9, at 1001 (5th ed. 1995) (vagueness). This is so because "when one must guess what conduct or utterances may lose him his position, one necessarily will 'steer far wider of the unlawful zone.'" Keyishian v. Board of Regents, 385 U.S. 589, 603-04, 17 L. Ed. 2d 629, 87 S. Ct. 675 (1967) (quoting Speiser v. Randall, 357 U.S. 513, 526, 2 L. Ed. 2d 1460, 78 S. Ct. 1332 (1958)). In the instant matter, defendant argues that the definition of the prohibited materials, that is, visual depictions involving the use of minors engaging in sexually explicit conduct, is too vague for the statute to stand.

 This court finds New York v. Ferber, 458 U.S. 747, 773, 73 L. Ed. 2d 1113, 102 S. Ct. 3348 (1981), to be determinative of defendant's facial challenge. The Supreme Court in that case upheld New York State's child pornography law against an overbreadth argument. Id. at 766-74. Justice White writing for the majority considered Ferber "the paradigmatic case of a . . . statute whose legitimate reach dwarfs its arguably impermissible applications." Id. at 773. Situations in which the statute would quash forms of expression with serious literary, artistic, or scientific merit were predicted to "amount to no more that a tiny fraction of the materials within the statute's reach." Id.

 The New York statute is not different from the federal statute in any way relevant to the overbreadth argument. For instance, the definition of sexually explicit conduct at 18 U.S.C. § 2256(2) is virtually indistinguishable from the definition of sexual conduct at New York Penal Law § 263.00(6), as demonstrated more fully infra. And the number of courts that have upheld the various provisions of the Protection of Children Against Sexual Exploitation Act of 1977, 92 Stat. 7 (codified as amended at 18 U.S.C. §§ 2251-2259) against overbreadth arguments -- most of them with reference to Ferber -- is growing. E.g., United States v. Knox, 32 F.3d 733, 751-52 (3d Cir. 1994), cert. denied, 130 L. Ed. 2d 782, 115 S. Ct. 897 (1995); United States v. X-Citement Video, Inc., 982 F.2d 1285, 1287-89 (9th Cir. 1992), rev'd on other grounds, 513 U.S. 64, 130 L. Ed. 2d 372, 115 S. Ct. 464 (1994); American Library Ass'n v. Barr, 294 U.S. App. D.C. 57, 956 F.2d 1178, 1190 (D.C. Cir. 1992); United States v. Wolf, 890 F.2d 241, 246 (10th Cir. 1989); United States v. Reedy, 845 F.2d 239, 241 (10th Cir. 1988) (ruling in Ferber "not distinguishable" from challenge to federal statute), cert. denied, 489 U.S. 1055, 103 L. Ed. 2d 587, 109 S. Ct. 1318 (1989); United States v. Rubio, 834 F.2d 442, 452 (5th Cir. 1987) (New York statute "equivalent" to federal statute); United States v. Smith, 795 F.2d 841, 848 n.7 (9th Cir. 1986) (federal statute "almost identical" to New York law approved in Ferber), cert. denied, 481 U.S. 1032, 95 L. Ed. 2d 535, 107 S. Ct. 1964 (1987); United States v. Langford, 688 F.2d 1088, 1092 (7th Cir. 1982), cert. denied, 461 U.S. 959, 77 L. Ed. 2d 1319, 103 S. Ct. 2433 (1983); United States v. Long, 831 F. Supp. 582, 586-87 (W.D. Ky. 1993); United States v. Tolczeki, 614 F. Supp. 1424, 1429-30 (N.D. & E.D. Ohio 1985); United States v. Andersson, 610 F. Supp. 246, 249 (N.D. Ind. 1985) (New York statute "very similar" to federal law), aff'd, 803 F.2d 903 (7th Cir. 1986), cert. denied, 479 U.S. 1069, 93 L. Ed. 2d 1010, 107 S. Ct. 962 (1987); United States v. Maday, No. 88- CR-145E, 1989 WL 103666, at *2 (W.D.N.Y. Sept. 6, 1989). Add this court to the list.

 In support of his argument that the law reaches conduct that cannot constitutionally be proscribed, defendant observes that the statute fails to make explicit exceptions for possession of child pornography by law enforcement officers, prosecutors, the court, or a jury. The argument is specious for two reasons. Obviously, neither the court nor a juror is subject to prosecution for possession of contraband if it is being examined as evidence at trial, and it is a sophistry to suggest that because possession of contraband is illegal, a law enforcement officer may not seize it or an assistant U.S. attorney may not present it as evidence in a prosecution. But these privileges do not arise from any of the protections of expression embodied in the First Amendment. They are rather incidents of the special functions these persons perform in our justice system. Therefore, defendant -- who is not a judge, juror, prosecutor, or law enforcer -- may not take advantage of the liberal standing rules accorded free speech overbreadth cases. See Ferber, 458 U.S. at 767 ("The traditional rule is that a person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the court."). And secondly, defendant has failed to show how the omission of explicit exceptions for the types of persons enumerated results in any substantial overbreadth. The court rejects the inconceivable notion that the number of times the government will seek to prosecute a juror for possessing in the jury room child pornography that has been admitted into evidence during a child pornography case will amount to any more than an infinitesimal fraction of all child pornography cases, if indeed it ever happens.

 Defendant also raises the contention that the federal law is unconstitutionally overbroad because it does not explicitly except materials with serious literary, artistic, scientific, or educational value from its sweep. However, the availability of an unconstitutional-as-applied defense substitutes for the lack of these express affirmative defenses. It is true that Justice O'Connor's concurrence in Ferber suggested that the First Amendment does not protect even materials with the above-mentioned redeeming attributes. Id. at 774-75. But the concurrences of Justices Brennan, Marshall, and Stevens all maintained that materials otherwise proscribed by the law that have serious literary, artistic, scientific, or educational merit are protected by the First Amendment. Id. at 776-77, 778. More importantly, the majority opinion itself states that

whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied.

 458 U.S. at 774 (quoting Broadrick, 413 U.S. at 615-16).

 At least one reported case holds that the United States may punish persons trafficking in materials covered by the Protection of Children Act that do possess redeeming social and scientific qualities. Stanley v. United States, 932 F. Supp. 418, 420-21 & n.3 (E.D.N.Y. 1996). In so ruling, Senior Judge Turrentine noted that "Congress rejected a proposed affirmative defense for serious literary, artistic, scientific, social or educational value to prosecution under the child pornography laws." Id. at 421. For support, the district court then cited to the legislative history accompanying the Child Protection Act of 1984, 98 Stat. 204 (which amended the 1977 Protection of Children Act in light of Ferber). However, the Stanley opinion neglected to consider the testimony of a Justice Department official contained in the same report on the subject of the affirmative defense:

Even in the absence of the affirmative defense provided in H.R. 2432, a defendant may take the position that the application of the child pornography statute to his case is unconstitutional and falls within the "tiny fraction of the materials within the statute's reach" which the Court recognized should receive constitutional protection. 102 S. Ct. at 3363. Thus, the affirmative defense provision (which was not in the New York statute approved in Ferber) is unnecessary.

 H.R. Rep. No. 536, 98th Cong., 2d Sess. 13 (1983), reprinted in 1984 U.S.C.A.A.N. 492, at 504 (testimony of Mark M. Richard, Dep. Ass't Att'y Gen.).

 Thus the fact that the affirmative defense was rejected could have just as easily meant that Congress acknowledged that some small amount of material literally covered by the statute was nonetheless protected by the guarantee of free speech, rendering the express defense redundant, or perhaps overly generous compared to what stands behind the First Amendment's aegis. In any event, it is the judiciary's role to survey the frontier of the First Amendment, and this court declines to join the singular opinion of the Eastern District of New York that the unconstitutional-as- applied defense is absolutely unavailable in a federal child pornography prosecution. *fn3"

 It appears that defendant in this case may well advance the argument that his possession of child pornography was pursuant to research he was undertaking in his capacity as a psychiatrist at the Auburn Correctional Facility. See Ex. A att'd to Lewis Aff., Doc. 22, at 3. This as-applied defense must await trial, where the factfinder can evaluate the credibility of defendant's proffered explanation.

 The court turns now to the vagueness argument. Defendant argues in the first instance that the statute lends itself to arbitrary enforcement by investigators because "the statute criminalizes child photographs of a type and kind dependent upon the prurient sensibilities of law enforcement." Def.'s Mem. Law., Doc. 23, at 6. Moreover, it "does not define the offense well enough to let ordinary people know what is prohibited." Id. at 7. To evaluate these arguments, we look to the definitional section of the Protection of Children Act:

(2) "sexually explicit conduct" means actual or simulated --
(A) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
(B) bestiality;
(C) masturbation;
(D) sadistic or masochistic abuse; or
(E) lascivious exhibition of the genitals or pubic area of any person;

 18 U.S.C. § 2256(2).

 Now let us compare the definitional component of the New York statute approved in Ferber :

"Sexual conduct" means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals.

 Ferber, 458 U.S. at 751; see also N.Y. Penal Law § 263.00(3) (McKinney 1989) (same).

 The High Court in Ferber agreed that "the conduct to be prohibited must be adequately defined by the applicable state law, as written or authoritatively construed." 458 U.S. at 764. They went on to hold that the New York Penal Law's definition of sexual conduct comports with that principle. Id. at 765. Since the federal statute is notably more specific than New York's, this court cannot hold that the Protection of Children Act fails to adequately tell the citizenry what is outlawed. For the same reason, the federal statute provides ample guidance for law enforcement officers.

 Lastly, defendant argues that the statute, in prohibiting the trafficking of visual depictions of child pornography "by computer," 18 U.S.C. §§ 2252(a)(1), (a)(2), & (4)(B), is vague in its application to the technology of transmitting image files over AOL. From the affidavits in this matter and its experience with another Innocent Images case, this court understands that computer distribution of child pornography begins with a regular photograph, film, or videotape. A photograph or still from a film or videotape can be scanned or transferred to a computer by a number of technological means, including digital cameras, flatbed scanners, and video capture cards. The images are converted into one of three image file formats, identified by a three-letter suffix following the period after the filename: GIF, JPG, or ZIP. *fn5" These files can then be transmitted over a modem to other computers. Another program known as a viewer is required to display the image files as actual pictures on the monitor, although viewers may be incorporated into other software.

 Defendant argues that the GIF, JPG, and ZIP files are not visual depictions within the meaning of the statute. The definitional section of the Protection of Children Act says of the term "visual depiction" only that it includes "undeveloped film and videotape." 18 U.S.C. § 2256(5). However, the definition does not exclude other media. Obviously, developed photographs would be covered. In fact, this court believes that the explicit reference to media of a type that requires additional steps and equipment before the images they contain can be viewed supports the proposition that Congress intended to sweep the type of transmission at issue here within the ambit of the statute. It is true that the GIF, JPG, and ZIP files are not visual depictions themselves -- they are computer data stored on diskettes or other media, requiring software and a computer to view ...

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