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