Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

U.S. v. MARCUS

January 6, 2003

UNITED STATES OF AMERICA,
V.
JAY MARCUS, DEFENDANT.



The opinion of the court was delivered by: Hurley, District Judge.

MEMORANDUM AND ORDER

Jay Marcus ("defendant" or "Marcus") pled guilty during trial to the knowing and intentional receipt, via computer, and concomitant possession of child pornography. The pleas were entered on June 20, 2002.

By letter dated November 11, 2002, defendant sought to withdraw his guilty pleas pursuant to Federal Rule of Criminal Procedure 32(e). The basis for the request is that the plea allocution purportedly did not comply with the requirements of Federal Rule of Criminal Procedure 11.

BACKGROUND

1. Indictment

Defendant was charged in a three count superseding 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 statutory provisions said to have been violated are 18 U.S.C. § 2252A(a)(2)(A) and 2252A(a)(5)(B).

2. Trial

After the jury was released for the day on June 19th, the Court entertained defendant's motion, made pursuant to Federal Rule of Evidence 403, that the images received into evidence, or some of them, should not be shown to the jury. That motion was denied after the Court reviewed the images in question and considered the arguments of counsel. The next day, June 20, 2002, I was advised by defense counsel that the defendant wished to plead guilty pursuant to a plea agreement that had been negotiated between the government and the defense during the evening recess.

3. Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002)

In the interim between the return of the superseding indictment and defendant's guilty pleas, the Supreme Court in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), declared two definitional sections of the Child Pornography Prevention Act of 1996, viz., §§ 2256(8)(B) and 2256(8)(D), to be overbroad and thus unconstitutional. The effect of the holding in Free Speech Coalition was to narrow the federal ban on child pornography to pornographic images made using actual children as distinct from "virtual child pornography," i.e., images that appear to depict minors engaged in sexually explicit conduct but which were created without using real children, such as by the use of youthful-looking adults or computer-imaging technology.

4. Guilty Plea

The plea agreement called for the defendant to plead guilty to receiving and possessing child pornography as alleged in the superceding indictment, with the distribution charge to be dismissed at sentencing.

Reference to the transcript of the plea of June 20, 2002, indicates: (1) that the Court explained the elements of Count Two (the receiving count) and Count Three (the possession count) to the defendant, including that "the government would be required to prove beyond a reasonable doubt, to the satisfaction of the jury, that the child depicted in one or more of these images was an actual child." (June 20, 2002 Tr. at 236 ["Tr."].) The Court expounded upon that element of the government's proof, by explaining to the defendant:

As we know, technology has changed and it's possible to create, I am told, an image which would appear to be a child engaged in sexual activity, when in fact a child was not used to produce that particular image. And that apparently can be done through computers and advanced technology at this point.
So the law as interpreted by the Supreme Court indicates that if a person possesses, receives or distributed what they call "virtual child pornography," that would not be a violation of the statute. And "virtual" means images which were not produced via the use of actual children, so they do not depict actual children. And that would be part of the government's burden.

Id. at 236-37, 122 S.Ct. 1389.

The Court returned to the same subject moments later, again advising defendant that the government would be required "to show that the images involved were not artificially created through technology but rather . . . depicted actual children in explicit sexual conduct." Id. at 238, 122 S.Ct. 1389. That reiteration was followed by the question as to whether defendant had discussed that element of the government's proof with his attorney. To that inquiry the defendant answered "yes," as he did to the follow up question as to whether he "understood the nature of the government's proof and what they would be required to prove specifically if the case proceeded." Id.

Later, the government explained how it intended to prove that the subject images depicted real children thusly:

With respect to whether the persons depicted in the picture were actually children, the government intends to prove that in two ways. One, the government was prepared to introduce the testimony of law enforcement witnesses that the persons depicted in the images were actually met by that law enforcement officer, and the law enforcement officer would then confirm that the image depicts an actual child, and the officer would be prepared to testify about how he recognized that child.
With respect to a number of the remaining images, there were witnesses as well as law enforcement officers testifying with — that these images were the same images in magazines depicting child pornography, which magazines were produced in the mid 1970s.
The government was then prepared to prove that the technology that essentially created an image from scratch was not available in the 1970s.

Id. at 254, 122 S.Ct. 1389.

Thereafter, the defendant began his allocution by indicating that he received "pornography knowingly and intentionally" on his computer within the time frame alleged in the indictment. Id. at 256, 122 S.Ct. 1389. The government noted that he had not referred to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.