The opinion of the court was delivered by: Hurley, District Judge.
The purpose of this opinion is to resolve a number — but not
all — of the outstanding pretrial motions made by defendant. The
remaining motions, consisting of applications to suppress
incriminating statements allegedly made by defendant following
his arrest and to suppress physical evidence seized as the
result of the execution of a search warrant, will be the
subjects of a hearing to be held before the undersigned shortly.
Specifically, the items of relief sought by defendant which
are the subjects of this opinion include:
1. Dismissal for manufactured jurisdiction and [sic]
charges against the defendant;
2. Disclosure of Brady v. Maryland, 373 U.S. 83, 83
S.Ct. 1194, 10 L.Ed.2d 215 (1963); Giglio v. United
States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104
(1972) and Kyles v. Whitley, 514 U.S. 419, 115
S.Ct. 1555, 131 L.Ed.2d 490 (1995) material;
3. Disclosure of impeachment material pertaining to
Rule 801, 803 and 804 declarants;
4. Preservation and disclosure of handwritten notes;
5. Additional discovery under Rule 16;
6. A Bill of Particulars;
7. Motion In Limine regarding expert or Agent
8. If the case proceeds to trial, allowing the
defendant to call a psychological expert who will
testify regarding the ABEL Assessment Test;
(Def.'s Not. Mot at 1-2.)
Defendant's applications will be addressed seriatim.
MOTION TO DISMISS INDICTMENT
Defendant is charged in a three count superceding indictment
with knowingly and intentionally (1) distributing in interstate
commerce, by computer, child pornography, (2) receiving in
interstate commerce, by computer, child pornography and (3)
possessing material that contains images of child pornography
that had been transported in interstate commerce by computer.
The statute said to be violated is 18 U.S.C. § 2252A(a)(2)(A),
2252A(b)(1), and 2252A(a)(5)(B).
A. Manufactured Jurisdiction Challenge to the Indictment is
Defendant contends that "the instant case is simply not a
Federal case [and is here] due to manufactured Federal
jurisdiction." (Liotti May 25, 2001 Decl. at 3.)
As explained by the Second Circuit in United States v.
These cases make clear that the "manufactured
jurisdiction" concept is properly understood not as
an independent defense, but as a subset of three
possible defense theories: (i) the defendant was
entrapped into committing a federal crime, since he
was not predisposed to commit the crime in the way
necessary for the crime to qualify as a federal
offense; . . . (ii) the defendant's due process
rights were violated because the government's actions
in inducing the defendant to commit the federal crime
were outrageous; . . . or (iii) an element of the
federal statute has not been proved, so federal
courts have no jurisdiction over the crime. . . .
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.
As to due process claim, defendant's Declaration is devoid of
information suggesting that a pretrial hearing is required. To
the contrary, a perusal of the Osborn
Affidavit, viewed in conjunction with what is said and not said
in defendant's Declaration, indicates that the government's
conduct comfortably passes constitutional muster, at least on
the essentially uncontroverted information presently before the
Court. That is true even if the government's conduct is viewed,
arguendo, as being akin to a "sting" operation. United States
v. Gendron, 18 F.3d 955, 961 (1st Cir. 1994). Under the
circumstances, it would be inappropriate to address and endeavor
to resolve defendant's due process manufactured jurisdiction
defense pretrial. See United States v. Alfonso, 143 F.3d 772
B. 18 U.S.C. § 2252A(a)(2)(A), 2252A(b)(1) and
2252A(a)(5)(B) are not Unconstitutional
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
Constitution.*fn1 In doing so, he raises a number of
Why is [defendant's] reputed behavior a crime? If he
in fact accessed child pornography, who did he hurt
by doing so? And if he distributed to a detective in
Tulsa, Oklahoma what damage was caused in that
dissemination? Should Jay Marcus be prosecuted for
promoting or furthering the child pornography
industry, even though he ...