The opinion of the court was delivered by: Hurley, District Judge.
5. Additional discovery under Rule 16;
6. A Bill of Particulars;
(Def.'s Not. Mot at 1-2.)
Defendant's applications will be addressed seriatim.
85 F.3d 1063, 1065-66 (2d Cir. 1996).
It is the government's position that "defendant's
jurisdictional challenge is premature in that it calls upon
[the] Court to determine whether an element of a federal statute
has been proven," citing United States v. Alfonso,
143 F.3d 772 (1998). (Gov't's Mem. Opp'n at 10.)
Rule 12(b) of the Fed.R. of Crim. P. provides in pertinent
part that "[a]ny defense, objection, or request that is capable
of determination without the trial of the general issue may be
raised before trial by motion."
With respect to the first Wallace defense theory embodied
within the manufactured jurisdiction concept, viz., entrapment,
defendant does claim that he was a victim of governmental
entrapment. However, the legitimacy of that position may not be
determined as a matter of law at this stage of the proceedings.
Compare paragraphs 9 through 20 of Special Agent Michael A.
Osborn's September 14, 2000 Affidavit submitted in support of
the application for arrest and search warrants (Ex. B, Def.'s
Not. Mot.) with defendant's May 25, 2001 Declaration. Rather the
factual issue as to defendant's predeposition to engage in the
criminal conduct charged, including its interstate element, must
be decided at trial. See United States v. Fadel, 844 F.2d 1425
(10th Cir. 1988); United States v. Persico, 520 F. Supp. 96
(S.D.N.Y. 1981), aff'd. 774 F.2d 30 (2d Cir. 1995); United
States v. DePalma, 461 F. Supp. 778 (S.D.N.Y. 1978); United
States v. Leighton, 265 F. Supp. 27 (S.D.N.Y. 1967). The same
conclusion applies to the second defense mentioned in Wallace,
that being whether the government's purported actions in
inducing defendant to commit the federal crimes were outrageous
and, as a result, violative of due process. This is merely an
extension of the entrapment defense in the present case, given
defendant's focus on the interstate element of the crimes
Similarly the third defense theory embraced within the concept
of manufactured jurisdiction as explained in Wallace, to wit,
that "an element of the federal statute has not been proved,"
obviously may not be resolved via a pretrial motion.
In sum, each of the three counts in the superceding indictment
is facially sufficient, and no claim is made to the contrary.
The Wallace defenses of entrapment and failure of proof as to
interstate commerce, as asserted by defendant, are intertwined
with the government's burden of proof and may not be adjudicated
by the Court pretrial.
In seeking the dismissal of the present indictment, the
defendant also urges that the statute under which he is charged
is unconstitutional as being violative of the First, Fourth,
Fifth and Sixth Amendments to the United States
(May 25, 2001 Mem. Law Supp. at 2.)
Defendant offers no answers for the above questions which have
been propounded apparently simply as a backdrop for his
constitutional claims vis-a-vis the child pornography statute
alleged to have been violated. Before addressing defendant's
specific First Amendment claims, it is necessary to provide the
text of the sections under attack. Section 2252A(a)(2) provides:
Section 2252A(b)(1) provides that anyone who violates or
attempts to violate, inter alia, paragraph 2(a) shall be fined
and imprisoned for a period not to exceed 15 years.
A violation of Section 2252A(a)(5)(B) calls for a term of
imprisonment not to exceed 5 years.
Defendant maintains that the statute violates the due process
clause of the Fifth Amendment as impermissibly vague. A criminal
statute must define the proscribed conduct "with sufficient
definiteness that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary and
discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352,
357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). "A statutory
provision will not suffer constitutional invalidation merely
because of a lack of complete precision." United States v.
Marks, 364 F. Supp. 1022, 1026 (E.D.Ky. 1973) ("to avoid
constitutional invalidation, the statute must simply convey
adequate warning of the proscribed conduct."). United States v.
Long, 831 F. Supp. 582, 587 (W.D.Ky. 1993).
Defendant proffers that the statute suffers from vagueness
because the "statute does not define what knowledge entails" and
"[t]he photographs [involved in this case] are graphic but one
can not tell from looking at them what the ages are of the
participants therein." (Def.'s May 25, 2001 Mem.Supp. at 5.) He
further complains that the term "lascivious" as used in §
2256(2)(E) is not defined. (Id.) It is also argued that an
individual, such as Mr. Marcus, might receive pornographic
pictures in which the participants were minors when the pictures
were taken but "twenty years later, when it is alleged that Mr.
Marcus received them, the participants would be adults." (Id.)
Proceeding in reverse order, the age of the participants at
the time the photographs were taken, rather than when viewed by
an accused, is controlling. Cf. § 2252A(c)(2). Otherwise
persons interested in disseminating such information could, for
example, photograph 8 year-olds engaged in explicit sexual
activity and then hold the materials until the youngest
participant reached majority thereby precluding a prosecution
under the statute. A common sense reading of § 2252A lends no
support for the defendant's argument. Not surprisingly, absent
from defendant's submission is any authority for the position
As to defendant's second argument, most of the items which
were allegedly received, possessed, and/or distributed by
defendant appear to fall within § 2256(a)(A)'s definition of
"sexually explicit conduct" and thus the government will not be
required, at least as those items, to rely on the alternative
"lascivious exhibition" language contained in § 2256(2)(E). And,
in any event, the Supreme Court has upheld the use of the term
"lascivious" in an obscenity context. Hamling v. United
States, 418 U.S. 87, 111, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974).
Lastly, the argument in support of the vagueness claim that
the photographs are graphic but "one cannot tell looking at them
what the ages are of the participants" is also unconvincing.
Initially, it is noted that the government must establish to the
satisfaction to the jury beyond a reasonable doubt that the
defendant was aware that one or more of the participants in the
photographs was a child. See, e.g., United States v. X-Citement
Video, Inc., 513 U.S. 64, 73, 115 S.Ct. 464, 130 L.Ed.2d 372
(1994); United States v. Burian, 19 F.3d 188, 191 (5th Cir.
1994). In some instances, assuming that the descriptions
provided by Agent Osborn are accurate, the government's task
would not appear to be formidable. See, e.g., Image 16(B) at
p. 10 of Osborn Affidavit describing one item allegedly received
by defendant as "an image of a male toddler receiving oral sex
from an adult female."
In sum, the Court finds that the statute under which defendant
is charged is not at odds with the due process clause of the
Fifth Amendment. To the contrary, the
statute clearly apprises individuals of the nature of the
conduct proscribed. United States v. Colavito, 19 F.3d 69 (2d
Cir. 1994). Accordingly, defendant's invocation of the rule of
lenity is also misplaced. See United States v. Vig,
167 F.3d 443, n. 9 (8th Cir. 1999) ("[b]ecause we have concluded that no
grievous ambiguity or uncertainty exists in the statute
involved, we find the rule of lenity to be inapplicable in this
Defendant also urges that § 2252A is violative of his First
Amendment right to privacy as defined by the Supreme Court in
Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d
542 (1969). That position is off-target. Stanley held that the
government may not regulate the nature of the books or films
that a person uses in the privacy of his or her home. However,
that protection does not preclude a prosecution of someone who
receives such materials via interstate transportation, even if
by private means and for private use. United States v. Orito,
413 U.S. 139, 141-42, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973). Thus
Count Two, which charges defendant with that crime, is not
subject to dismissal as violative of the First Amendment. Nor
does Stanley insulate an individual from prosecution for
distributing such items. United States v. Reidel,
402 U.S. 351, 355, 91 S.Ct. 1414, 28 L.Ed.2d 813 (1971). Accordingly,
Stanley does not invalidate Count One.
But how about Count Three, which charges defendant with
possessing child pornography which crossed state lines? In
arguing that mere possession falls within the protective rubric
of Stanley, defendant equates Congress' concern about child
pornography with "the 1930's movie classic, Reefer Madness,
which accused all those who smoked marijuana as being addicts
and possessed by demons. Not since the McCarthy era [defendant
opines] has Congress sought to legislate morality to such
extremes." (Def.'s May 25, 2001 Mem.Supp. at 3.)
The prohibition against the knowing possession of child
pornography has survived numerous constitutional challenges.
See, e.g., United States v. Colavito, 19 F.3d 69 (2d Cir.
1994); United States v. Schmeltzer, 20 F.3d 610 (5th Cir.
1994); and United States v. Burian, 19 F.3d 188 (5th Cir.
1994). However, neither party has cited — nor is the Court aware
of — a case addressing the precise issue broached by defendant,
i.e., whether possession of child pornography in one's home,
standing alone, may legitimately be criminalized in view of
The obscene materials possessed in Stanley consisted of
"films depict[ing] nude men and women engaged in acts of sexual
intercourse and sodomy," not child pornography. Stanley v.
State, 224 Ga. 259, 161 S.E.2d 309 (1968), rev'd, Stanley v.
Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969).
Yet, an argument can be made that the sweeping language employed
by the Supreme Court in Stanley pertains to any film possessed
within the confines of one's home including, e.g., snuff films
(in which one or more of the participants is murdered as part of
the presentation) and child pornography.
While Georgia was unsuccessful in arguing that a prohibition
on the possession of obscene material was a necessary incident
of its recognized right to prohibit distribution, there is no
reason to extend that holding beyond the facts in Stanley. To
do so would ignore the obvious distinctions between adult
pornographic films (or like visual depictions, as distinct from
the written word) and child pornography.
A legitimate debate may be waged as to whether the possession
of adult pornographic films in the privacy of one's home
victimizes anyone thereby warranting state intrusion. The
individuals depicted are
typically willing participants, legally capable of consent.
Child pornography, on the other hand, like snuff films,
necessarily victimize someone. The victims of child pornography
are youngsters, incapable of consenting as a matter of law, who
are sexually abused for the gratification of others.
Of course, the defendant is charged in Count Three with
possession, not producing the subject visual depictions. But
surely there is a direct correlation between the legal right to
possess such materials and the demand for their production, or
so a legislature could properly conclude. Granted, receiving
such items may be illegal. However, if the recipient knows that
a possession-based prosecution may not be instituted once the
materials cross the residential threshold, he or she will
presumably be more likely to acquire child pornography. And
increased demand enhances the sexual exploitation of children.
In sum, given the above described distinctions between adult
and child pornography the government may prohibit the possession
of the latter even within the confines of one's home. The
prohibition is justified both per se and as incidental to the
government's right to prohibit the receipt and distribution of
child pornography. Which is to say, defendant's constitutional
attack on § 2252A(a)(5)(B) is found to be without merit.
For the reasons indicated, defendant's motion to dismiss the
indictment on the basis of purported constitutional infirmities
under the First and Fifth Amendments is denied.
GOVERNMENT'S BRADY OBLIGATION
Defendant has moved for the production of Brady,*fn2
Giglio*fn3 and Kyles*fn4 material ("Brady
material"). In response, the government has indicated:
[It] is not aware of any exculpatory material
discoverable under Brady v. Maryland, 373 U.S. 83,
83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its
progeny. The government is aware of its continuing
duty to disclose exculpatory information. If and when
such information becomes known to the government, it
will be promptly disclosed.
The government is reminded that its obligation to determine
the existence of Brady material must be expanded to include
the files of any state or local officials who assisted in the
Given the government's representation that it will "promptly
disclose such information when and if it is located," no
further action by this Court is required at this time. However,
the government should conduct its search forthwith given that
this case should be ready for trial shortly.
REQUEST FOR DISCLOSURE OF IMPEACHMENT EVIDENCE
CONCERNING STATEMENTS THE GOVERNMENT WILL SEEK TO
INTRODUCE AT TRIAL OF OUT-OF-COURT DECLARANTS WHO WILL
NOT BE CALLED AS GOVERNMENT WITNESSES
In response to the above request, the government indicates
that it is aware of no such materials. Should the government, in
perusing its files for Brady materials and materials which
fall within the purview of this request, discover either or both
types of information, it shall either (1) furnish such
information promptly to the defense or (2) forthwith notify the
Court and defense counsel of the general nature of the items
discovered and its proposed timetable for their release.
PRESERVATION OF HAND WRITTEN NOTES
The government consents to this request and the Court, via
this decision, "so orders" that agreement between counsel.
The request that the notes be disclosed is denied except to
the extent such items constitute Brady or other materials
directed elsewhere in this opinion to be furnished pretrial.
REQUEST FOR ADDITIONAL DISCOVERY
The defendant, after noting that he has been provided with
some discovery, "submits that the government has not produced
all the materials to which he is entitled under Fed.R.Crim.P. 16
and the due Process Clause of the Constitution of the United
States." (Loitti May 25, 2001 Decl. at 19.) Defendant then asks
for "additional discovery" of numerous items contained in twelve
separately numbered paragraphs.
The government contends that it has "in its letter of March
22, 2001 [Ex. 3, Gov't's Mem. Opp'n], . . . already provided all
of the material discoverable under Rule 16 of the Federal Rules
and has reviewed with defense counsel the tangible objects
including the hundreds of child pornography files from the
defendant's computer." (Gov't's Mem. Opp'n at 19.)
Some of the "additional items" sought by the defense appeared
to have already been furnished to the defense via the March 22nd
discovery letter. Compare para. 8 of defendant's demand seeking
his complete criminal history with para. 2 of the March 22nd
letter, entitled "Criminal History," detailing the government's
awareness of defendant's prior contacts with the criminal law.
Some of the other items sought by the defendant will not be
addressed at this time given the lack of authority provided for
the proposition that their disclosure is required. The items
requested by the defendant falling within that category are
found in requests 4, 9 and 11. Those requests are denied,
without prejudice to renewal with supporting authority.
Defendant particularly underscored in his submission the
significance of request number 6 which reads:
All documents reflecting the chain of custody of
defendant's computer and all equipment and technology
relating thereto or any other property seized from
As to that request, defendant maintains that "it is clear that
the defendant is not only entitled to the final reports of
scientific or medical examinations, but to all the information,
notes and individual tests upon which those reports are based."
(Liotti May 25, 2001 Decl. at 20.)
In support of that proposition defendant cites United States
v. Green, 144 F.R.D. 631, 639 (W.D.N.Y. 1992).
It is noted that request number 6 pertains to the chain of
custody of items taken from defendant's home. Green, and
indeed the explanation provided by the defense as to the
importance of discovery request number 6, does not address the
chain of custody issue. Accordingly, that request is denied,
With respect to request number 7 (which the Court believes is
the request defendant intended to emphasize rather than number
6), defendant is entitled under Rule 16(a)(1)(D) and (E) to a
written summary of any expert testimony which the government
will seek to present to the jury.
Rule 16(a)(1)(C) provides for the discovery of documents in
the possession of the government "which are material to the
preparation of the defendant's defense." Considering that
language, in conjunction with the requirement under
Rule 16(a)(1)(D), which provides for the discovery of the "results or
reports of physical or mental examinations and of scientific
tests or experiments" leads me to the conclusion that the court
in United States v. Green was correct in directing the
government "to turn over to the defendant not only all
scientific reports but also all findings, scientific or
technical data upon which such reports are based." United
States v. Green, 144 F.R.D. at 639. Accordingly, that direction
to the government in Green is incorporated by reference.
In the government's letter of March 22, 2001, it indicates
that it will provide "information about any expert witness at a
time closer to trial." Ten months have elapsed since that letter
was written. The Court anticipates that the trial of this action
will commence during the winter, or at the latest, during the
early spring of 2002. Therefore, the time for the government to
provide the information concerning any expert witnesses that
they intend to call at trial is rapidly approaching if the
defense is to have adequate time to review the material and
prepare for trial. The government is directed to furnish the
information called for in this portion of the opinion to
defendant on or before February 15, 2002.
As noted earlier, defendant's request to suppress oral
statements and physical items of evidence are the subjects of a
hearing to be held shortly. The government will furnish a copy
of the search warrant, along with the accompanying information
sought in request number 10, to the defense on or before
February 8, 2002.
REQUEST FOR A BILL OF PARTICULARS
The next item of relief sought by defendant is a bill of
particulars pursuant to Fed.R.Crim.P. 7(f).
The purpose of a bill of particulars is to permit a defendant
"to identify with sufficient particularity the nature of the
charge pending against him, thereby enabling defendant to
prepare for trial, to prevent surprise, and to interpose a plea
of double jeopardy should he be prosecuted a second time for the
same offense." United States v. Bortnovsky, 820 F.2d 572, 574
(2d Cir. 1987). The Second Circuit has explained that
"[g]enerally, if the information sought by defendant is provided
in the indictment or in some acceptable alternate form, no bill
of particulars is required." (Id.) Accordingly, a bill of
particulars "should be required only where the charges of the
indictment are so general that they do not advise the defendant
of the specific acts of which he is accused." United States v.
Torres, 901 F.2d 205, 234 (2d Cir. 1990) (internal quotation
marks omitted.) "It is not enough that the information would be
useful to the defendant; if the defendant has been given
adequate notice of the charges against him, the government is
not required to disclose
additional details about its case." United States v. Payden,
613 F. Supp. 800, 816 (S.D.N.Y. 1985).
With the above principles in mind, attention will now be
directed to defendant's requests. Requests two through 10 seek
specifics concerning the search warrant that was issued in this
case, including such items as "the names, addresses and dates of
birth of all persons who provided information to law enforcement
in support of the application for a search warrant in this
case." (Liotti May 25, 2001 Decl. at 21-22.)
Items 1, 11 through 15 and 22 pertain to the charges contained
in the indictment. The remaining requests ask for specifics
concerning the defendant's arrest and the subsequent
incriminating statements he allegedly made to law enforcement.
The government resists defendant's request for a bill of
The defendant is charged with distributing and
receiving child pornography. The Affidavit lists and
describes the files transmitted and received by the
defendant. Moreover, defense counsel has already
reviewed (and had when his motion was filed) dozens
of child pornography files found on the defendant's
(Gov't's Mem. Opp'n to Mot. to Suppress at 20.)
Some of the information sought in the bill of particulars is
already known by the defendant or will be known as a result of
certain discovery directives contained in this decision. The
other items sought have not been shown by defendant to be
necessary to prepare for trial, avoid surprise, or to be needed
for the purpose of asserting the defense of double jeopardy
should the government endeavor to prosecute him again for the
conduct embraced within the present accusatory instrument.
Accordingly, the request for a bill of particulars is denied.
MOTION IN LIMINE REGARDING EXPERT OR AGENT TESTIMONY
Presumably this request pertains to any expert testimony being
proffered by the government pursuant to Article VII of the
Federal Rules of Evidence, whether such expert testimony is
provided by an agent or another person qualified by reason of
knowledge, skill, experience, training, or education to provide
an opinion to the jury. The Court is aware of its gatekeeper
role under Rule 104(a) as explained in such cases as Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct.
2786, 125 L.Ed.2d 469 (1993) and Kumho Tire Co. v. Carmichael,
526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).
Accordingly before the government — or defendant for that matter
— is permitted to call an expert to the stand, the Court will
conduct a hearing to determine if the information sought to be
elicited is sufficiently trustworthy.
By way of format, the hearings will be initially by way of
proffers and oral arguments by counsel; if at the conclusion of
that process, the Court determines that the taking of testimony
is required, a subsequent hearing or hearings will be scheduled.
DEFENDANT'S APPLICATION TO CALL PSYCHOLOGICAL EXPERT
REGARDING ABEL ASSESSMENT TEST
As noted, any expert which either party seeks to call,
including the individual identified in the caption to this
portion of the opinion, will be subject a Daubert/Kumho
OTHER DEFENSE REQUESTS
In addition to the requests specifically identified in
defendant's Notice of Motion, other requests are contained in
submissions. Two of those warrant discussion, viz., (1) request
that government be precluded from introducing into evidence any
items it claims constitute child pornography and (2) request
that the government be precluded from eliciting evidence
regarding adult pornography recovered during the search of
The first request is denied. See United States v. Campos,
221 F.3d 1143, 1148-49 (10th Cir. 2000) (not an abuse of
discretion for district court to permit jury to view the two
images of child pornography that defendant allegedly transported
notwithstanding defendant's offer to stipulate that those images
constituted child pornography).
Although Federal Rule of Evidence 403, or other considerations
may, in any appropriate case, warrant the relief sought by
defendant, this case — at least on the information presented —
does not call for such a result. Thus, for example, defendant
attacks Section 2252A on the ground, as noted earlier, that
although "the photographs . . . are graphic . . . one cannot
tell by looking at them what the ages are of the participants
therein." (Def.'s May 25, 2001 Mem.Supp. at 5.) Defendant's
knowledge is an element of the government's burden of proof. The
jury is entitled to view the images to determine whether the
government has met its burden of proof as to that element.
Defendant's second request — again, on the information
currently before the Court — is granted. Adult pornography
linked to defendant appears to be irrelevant to the charges
contained in the indictment. And, if relevant, Rule 403 weighs
against admission. See United States v. Harvey, 991 F.2d 981
(2nd Cir. 1993).
The Court has considered all the arguments advanced by
defendant, not only those specifically addressed above. Those
not specifically mentioned, have been found to be devoid of
The above constitutes the decision and order of the Court.