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September 24, 2001


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 testimony; and
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.


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 Premature

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. Wallace:

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 charged.

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 (1998).

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 questions including

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 ...

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