United States District Court, Eastern District of New York
January 6, 2003
UNITED STATES OF AMERICA,
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.
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).
The trial began with jury selection on June 17, 2002, and then
proceeded with the presentation of witnesses on June 19, 2002.
On June 19, 2002, the government presented evidence that (1) the
defendant was the
sole user of the screen name that had distributed the one image
which is the subject of Count One of the indictment; (2)
numerous images and video clips that had been recovered from the
defendant's computer; and (3) the deliberate process involved in
downloading those images onto defendant's computer from the
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
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
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 "child pornography." At that juncture the
following colloquy occurred:
THE COURT: Did you discuss with your attorney the
meaning of child pornography within the meaning of
THE DEFENDANT: Yes.
THE COURT: Do you understand it?
THE DEFENDANT: Yes.
THE COURT: The items that you referred to that were
on your computer, they were child pornography?
THE DEFENDANT: Yes.
THE COURT: Now, at least one of the images involved a
youngster under 12 years of age.
MR. LIOTTI: Judge, if I may, he doesn't know that for
certain, but he's relying on the government's proffer
in that regard.*fn1
THE COURT: That would be true of the other type of
conduct which is described, the 4-point enhancement.
THE DEFENDANT: Yes, sir.*fn2
Id. at 257-58, 122 S.Ct. 1389.
5. Motion to Withdraw Plea
As noted, defendant entered his pleas of guilty on June 20,
2002. At that time the
sentencing date was set for October 4, 2002. That date was later
changed to October 25, 2002 at defense counsel's request.
On October 25, 2002, the Court was ready to proceed to
sentence and asked the government and defense whether they were
ready. The government answered in the affirmative. Defense
counsel, however, answered that the defendant was not ready to
proceed because consideration was being given to making a motion
to withdraw his June 20, 2002 pleas of guilty. The Court
provided defense counsel with time to reflect on the matter and,
by letter from Mr. Liotti dated November 11, 2002, defendant
made the present motion. The basis for the motion is as follows:
The Government's proof in this case, as
proffered, revealed that they had law enforcement
officials from England who allegedly investigated
child pornography cases one-quarter century ago. In
doing so, apparently these law enforcement
personnel were prepared to come forward and
indicate that when the photographs or videos were
made, they were made of children at that time.
However, there is a quantum leap which neither the
defendant nor defense counsel can make with respect
to knowledge and scienter concerning these
children. The defendant does not know of his own
knowledge whether these are actual photographs or
when they were taken or whether they were taken of
Accordingly, the defendant's plea fails to
satisfy the elements of a plea allocution in that
he hesitated in expressing knowledge or intent
regarding the possession of child pornography. I am
attaching a copy of the defendant's plea minutes of
June 20, 2002. The defendant was left to rely
entirely upon the Government's proffer as to
whether the images were in the nature of child
The defendant has also reviewed the Presentence
Investigation Report and finds that Probations's
view of this case is at odds with the defendant's
statements during his plea and totally ignores the
plea minutes. In addition, the defendant is
apprised of other cases within this courthouse
where defendants for the same or greater offenses,
have been afforded more favorable treatment. See
Robert E. Kessler, Medford Man Convicted of Child
Porn Charges, Newsday, September 24, 2002 at A46.
This Court should be well aware that Mr. Marcus
was adamant about his innocence and the
Government's and America On Line's misconduct in
this case and other cases like it. Mr. Marcus is
not in the business of pornography. As this Court
knows, the defendant's plea was entered after this
Court made an evidentiary ruling, allowing for the
admission of a video of what appeared to be a young
girl with ejaculate on her face and committing the
act of fellatio. It was reasoned at the time that
while the defendant was not familiar with this
image and was not certain of whether it was that of
a child, nonetheless his concern was that a jury in
viewing that video would absolutely have to convict
him, notwithstanding the enormous free speech and
freedom of association issues which apply in this
case. (Tr. 257.)
(Thomas F. Liotti, Esq. Nov. 11, 2002 Letter at 1-2.)
With respect to the comment in the November 11, 2002 letter
that defendant "hesitated in expressing knowledge or intent
regarding the possession of child
pornography," the Court did not discern any hesitation in
defendant's acknowledgment that he possessed images depicting
child pornography. However, it is correct that defendant was not
asked specifically whether he knew the images depicted real
children, although he did acknowledge, after the post-Free
Speech Coalition definition of child pornography was explained
to him ad nauseam, that he knowingly and intentionally possessed
such pornography as so defined.
With respect to "Mr. Marcus [being] adamant about his
innocence," defendant has not submitted an affidavit in support
of the present motion, nor has he otherwise directly
communicated his state of mind to the Court beyond his initial
"not guilty" pleas to Counts One, Two and Three and subsequent
pleas of "guilty" to Counts Two and Three.
The resolution of the present motion turns on whether
defendant made a knowing and voluntary acknowledgment of guilt
on June 20, 2002. And central to that query is whether the fact
that the "defendant was [purportedly] left to rely entirely upon
the Government's proffer" that actual children appeared in the
images retrieved from his computer invalidates his pleas. (Nov.
11, 2002 Letter at 2.)
1. Purpose of Plea
Rule 11 is "`designed to insure that a defendant's plea of
guilty is a voluntary and intelligent choice among the
alternative courses of action open to the defendant.'" United
States v. Showerman, 68 F.3d 1524, 1527 (2d Cir. 1995) (quoting
United States v. Renaud, 999 F.2d 622, 624 (2d Cir. 1993));
see also North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct.
160, 164, 27 L.Ed.2d 162 (1970) ("The standard was and remains
whether the plea represents a voluntary and intelligent choice
among the alternative courses of action open to the
2. Withdrawal of Plea
As explained by the Second Circuit in United States v.
Rule 32(e) of the Fed.R.Crim.P. indicates that a
court may permit withdrawal of a guilty plea "if the
defendant shows any fair and just reason for doing
so." Still, "[a] defendant has no absolute right to
withdraw his plea of guilty." United States v.
Williams, 23 F.3d 629, 634 (2d Cir. 1994), cert.
denied, 513 U.S. 1045, 115 S.Ct. 641, 130 L.Ed.2d
547 (1994). "The fact that a defendant has a change
of heart prompted by his reevaluation of either the
Government's case against him or the penalty that
might be imposed is not a sufficient reason to permit
withdrawal of a plea."*fn3 United States v.
Gonzalez, 970 F.2d 1095, 1100 (2d Cir. 1992). "In
determining whether a `fair and just reason' exists
to justify withdrawal of a guilty plea, a district
court should consider: (1) the time lapse between the
plea and the motion; and (2) whether the government
would be prejudiced by a withdrawal of the plea."
United States v. Torres, 129 F.3d 710, 715 (2d Cir.
1997) (citations omitted). The defendant bears the
burden of showing that there are valid grounds for
permitted withdrawal. United States v. Rodriguez,
968 F.2d 130, 141 (2d Cir.), cert. denied,
506 U.S. 847, 113 S.Ct. 140, 121 L.Ed.2d 92 (1992).
225 F.3d 254, 259 (2d Cir. 2000). See also United States v.
278 F.3d 150, 155 (2d Cir. 2002); United States v. Torres,
129 F.3d 710, 715 (2d Cir. 1997).
3. Defendant's Pleas of Guilty Were the Product of a Voluntary
and Intelligent Choice Among the Alternative Courses of
Action Open to Him
Defendant's pleas of guilty were entered voluntarily. (Tr. at
233.) The question is whether he made an "intelligent choice
among the alternative courses of action open to [him]." United
States v. Renaud, 999 F.2d at 624. To do so, he needed, inter
alia, to understand what the government would have had to prove
during the then ongoing trial for him to be convicted. It is
clear from the plea minutes, and from my observations during the
plea allocution, that he had such knowledge.
The Court read Counts Two and Three to the defendant verbatim,
those being the counts to which the defendant entered guilty
pleas. (Tr. at 234.) That was followed by the Court reading the
relevant portions of Section 2252A, including the requirement
that a defendant's possession or receipt must be knowing and
intentional. Id. at 234-35, 122 S.Ct. 1389. It was explained
to defendant that the government would be required to prove that
the "conduct was knowingly done and was not the result of some
type of accident or mistake." Id. at 236, 122 S.Ct. 1389. That
was immediately followed by a lengthy explanation of the
distinction between child pornography involving the use of
actual children, and virtual pornography, (Tr. 236-37),
supplemented by an underscoring that the receipt, possession, or
distribution of virtual child pornography was not a violation of
Section 2252A. Id. at 237, 122 S.Ct. 1389.
After having been furnished by the Court with the post-Free
Speech Coalition definition of what constituted child
pornography, and advised that the government would be required
to show that he knowingly possessed and received at least one
item falling within that definition, (id. at 237-38, 122 S.Ct.
1389), the defendant was asked whether he understood the nature
of the government's burden and whether he had discussed that
subject with his attorney. To both inquiries he answered in the
affirmative. Thereafter, he entered guilty pleas to Counts Two
and Three. (Tr. at 252-253.)
Before defendant's plea was accepted, the government, at the
Court's request, detailed the nature of its proof against
defendant. (Tr. at 253-254.) That was followed by the defendant
explaining his conduct. In doing so, he indicated that he
"received pornography knowingly and intentionally." (Tr. at
256.) He further explained that included within the items
received and possessed were items of child pornography. (Tr. at
257.) The child pornography statement by the defendant was
immediately preceded by the following colloquy, noted earlier,
THE COURT: The charge here is child pornography. Did
you discuss this with your attorney the meaning of
child pornography within the meaning of this context
[i.e., the post-Free Speech Coalition context that
the Court had already explained to him at length]?.
THE DEFENDANT: Yes.
THE COURT: Do you understand it?
THE DEFENDANT: Yes.
THE COURT: The items that you referred to that were
on your computer were they child pornography?
THE DEFENDANT: Yes.
Id. at 257, 122 S.Ct. 1389.
Defendant plead guilty on the second day of trial. At that
time, the alternative courses of action open to him were clear:
he could permit the trial to continue, or he could accept the
plea offer, thus ending the matter. He opted for the latter
Absent from defense counsel's letter motion is any suggestion
that defendant did not fully understand that child pornography
did not include virtual child pornography and that part of the
government's burden of proof was to establish that he knowingly
and intentionally received and possessed images of actual
children engaged in sexually explicit conduct. Rather the
gravamen of defendant's claim — as, again, voiced solely in his
attorney's previously quoted November 11, 2002 letter motion —
is that the defendant did "not know of his own knowledge whether
these were actual photographs or when they were taken or whether
they taken of children." Instead, defense counsel maintains,
defendant "was left to rely entirely upon the government's
proffer as to whether the images were in the nature of child
pornography." For present purposes, the Court assumes the
accuracy of those statements.
Defendant offers no authority for the implicit proposition
that defendant's pleas of guilty, although voluntary and
representing an intelligent choice among alternative courses of
action, are invalidated under such circumstances. Given that
Rule 11 provides that a "defendant may plead guilty, not guilty
or nolo contendere," it is not surprising that no authority
has been furnished on this point. Id. (emphases added); cf.
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d
162 (1970) and Thomas v. Roach, 165 F.3d 137, 144 (2d Cir.
1999). Which is to say, even if defendant, as distinct from his
attorney, were now to claim that he merely conceded that one or
more of the image taken from his computer depicted actual
children engaged in sexually explicit conduct, that would not
warrant the relief requested. Surely, if an accused may enter a
nolo contendere plea to a charge, the same plea may be entered
as to an element of a charge. And that is so even if the label
"nolo contendere" was not attached to the subject response.
Alford, 400 U.S. at 37, 91 S.Ct. 160 ("The fact that his plea
was denominated a plea of guilty rather than a plea of nolo
contendere is of no constitutional significance. . . .").
Granted, an individual who simply possesses or receives images
of children engaged in sexually explicit conduct may not even
consider, much less know, whether the images depict actual
children or are the product of computer technology; indeed, such
nuances as to origin seemingly would be irrelevant to the viewer
if the two types of presentation are, or become as technology
improves, indistinguishable. And yes, the government's burden to
demonstrate that a defendant, such as Marcus, knowingly received
and possessed child pornography is certainly more formidable
than if an accused, e.g., produced the child pornography in
question. Nonetheless, this defendant was aware of what
constituted "child pornography," and what did not, under Free
Speech Coalition. He made a voluntary and knowing decision on
June 20, 2002 to plead guilty to Counts Two and Three. Moreover,
the requirement of Rule 11(f) has been satisfied in that there
is a more than adequate factual basis for the pleas. See
generally United States v. Andrades, 169 F.3d 131, 136 (2d Cir.
At this juncture the Court will briefly discuss the two other
factors which bear on a Rule 32(e) application to withdraw a
plea, viz., the time lapse between the pleas and motion and
whether the government would be prejudiced by the withdrawal of
4. Time Lapse Between Pleas and Motion, and Prejudice to
Government Should Relief Requested be Granted
The pleas were taken on June 20, 2002. Nothing was said to the
Court nor the government to indicate that the defendant was
considering making an application to
withdraw those pleas until the case was called for sentence on
October 25, 2002, i.e., over 4 months later. Moreover, and more
importantly, the decision to plead guilty occurred during the
course of the trial. As noted in United States v. Maher:
[T]he court must draw all permissible inferences in
favor of the government and against the defendant,
especially when, as here, the defendant has gone to
trial, heard most of the government's evidence, and
then pleaded guilty, describing his wrongdoing and
acknowledging that he could not effectively defend
against that evidence.
108 F.3d 1513, 1530 (2d Cir. 1997).
Significant prejudice would be incurred by the government
should the requested relief be granted. Not only has the
defendant been the beneficiary of a "dry run" concerning major
portions of the government's case, but the government would be
required to reassemble its witnesses — including some from
foreign locations — if the pleas were vacated and a second trial
5. Conclusion Re Application to Withdraw Pleas
In sum, defendant's pleas of June 20, 2002 were voluntary, and
represented an intelligent and knowing choice among the
alternatives with which he was then faced. Additionally, the
unexplained, protracted hiatus between the taking of the pleas
and the application to withdraw those pleas, and the prejudice
to the government should the pleas be withdrawn, both counsel
against granting the requested relief.
For the reasons indicated, defendant's motion to withdraw his
pleas to Counts Two and Three of the indictment is
6. Defendant Will be Sentenced on February 14, 2003 at 12:00
Any objections to the presentence report, with supporting
authority, should be provided to the Court no later than ten
days prior to the sentencing date.
The plea agreement precludes defendant from seeking a downward
departure. However, the Court, sua sponte and for its own
edification, directs defendant to explore whether a basis for
such a departure exists. In that regard, the defense has already
provided the Court with a document entitled "Able Assessment
Test," which purports to show that defendant does not represent
a risk to children. Possibly that information, and/or other
information, may serve as an appropriate predicate for a
downward departure application.*fn5 See generally United
States of America v. Silleg, 311 F.3d 557 (2d Cir. 2002).