The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM-DECISION AND ORDER
Defendant is charged in a one-count indictment with a violation of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act ("PROTECT"), codified in scattered sections of 18, 28, and 42 of the United States Code. 18 U.S.C. §§ 2252A(a)(5)(B) and 2256(8)(C) criminalize possession of child pornography consisting of visual depictions that have been "created, adapted or modified to appear that an identifiable minor is engaging in sexually explicit conduct." (emphasis added). Presently before the Court is a motion by defendant to dismiss the indictment on the ground that the definition of child pornography in 18 U.S.C. § 2256(8)(C) is unconstitutional as applied to him in light of the holding of the United States Supreme Court in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).*fn1
II. Factual and Procedural Background
According to the facts stipulated to by the government and defendant herein, the New York State Police executed a search warrant at defendant's home on January 18, 2005, and seized a desktop computer which contained images of six minor females ("Jane Does 1-6") who appeared to be engaged in "sexually explicit conduct" as that phrase is defined in 18 U.S.C. § 2256(2). More specifically, the heads of the six minor females had been "cut" from original non-pornographic images and "pasted" over the heads of unidentified nude or partially nude females in various sex acts and/or lascivious poses. One of the images depicts the face of defendant superimposed onto the body of a naked male who is engaged in sexual intercourse with a naked woman bearing the face and neck of Jane Doe #6. Defendant obtained the non-pornographic images of Jane Doe #1 from a computer he was repairing for her family. The non-pornographic images of Jane Does # 2-6 were created by defendant's daughters and their friends using digital cameras. Defendant altered the non-pornographic images using a computer software program together with pornographic images he obtained via the Internet and his internet service provider America Online ("AOL"). There is no evidence that the bodies of the unidentified nude females in the altered images are those of minors. However, the parties agree that the bodies depicted are not virtual or computer generated.
Defendant stored some of the aforementioned images in computer files that could be used to create a website. Along with files that contain "thumbnail" type image arrays, defendant stored index pages titled "[Jane Doe] Upstate NY's Hottest Teen." These pages contain a notation that they were "generated with Arles Image Web Page Creator." Nevertheless, there is no evidence that defendant published the subject images to a website or the internet or that he distributed the images to anyone.*fn2
A. Constitutional Prohibition of Child Pornography
In New York v. Ferber, 458 U.S. 747 (1982), the United States Supreme Court first upheld a criminal ban on the distribution of child pornography that did not meet the traditional definition of "obscene" set forth in Miller v. California, 413 U.S. 15, 24 (1973) ("[crimes for pornography must . . . ] be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value."]) because of the legitimate state interest in protecting "the physiological, emotional, and mental health" of children. Ferber, 458 U.S. at 758. In Ferber, the Court emphasized that children are harmed not only through the actual production of pornography, "but also by the knowledge of its continued circulation." Id. at 756-59 & n. 10. Based in significant part on this psychological harm, the Supreme Court later upheld a statute criminalizing the mere possession of child pornography. See Osborne v. Ohio, 495 U.S. 103, 110-11 (1990) ("[T]he materials produced by child pornographers permanently record the victim's abuse. The pornography's continued existence causes the child victims continuing harm by haunting the children in years to come.").
Moreover, in Osborne, supra, the Supreme Court recognized that it was "surely reasonable for the State to conclude that it will decrease the production of child pornography if it penalizes those who [merely] possess and view the product, thereby decreasing demand." 495 U.S. at 109-10 (emphasis added). In Osborne, the Court noted that its earlier and seemingly inapposite holding in Stanley v. Georgia, 394 U.S. 557, 567 (1969) (states cannot criminalize mere private possession of obscene material), was a "narrow" one. Osborne, 495 U.S. at 108. Osborne also observed that after the Court's decision in Stanley, "'the value of permitting child pornography has been characterized as exceedingly modest, if not de minimus.'" Id. (quoting Ferber, 458 U.S. at 762).
Before 1996, Congress defined child pornography as the type of depictions at issue in Ferber, that is, images created using actual minors. 18 U.S.C. § 2252 (1994 ed.). The Child Pornography Prevention Action of 1996 ("CPPA") retained that prohibition at 18 U.S.C. § 2256(8)(A) and added three other prohibited categories of speech, of which the first, section 2256(8)(B), and the third, section 2256(8)(D), were at issue in Ashcroft. 535 U.S. at 241. Section 2256(8)(B) prohibited "any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture," that "is, or appears to be, of a minor engaging in sexually explicit conduct." As the Ashcroft court explained:
The prohibition [in section 2256(8)(B)] on "any visual depiction" did not depend at all on how the image was produced. The section captures a range of depictions, sometimes called "virtual child pornography," which include computer-generated images, as well as images produced by more traditional means. For instance, the literal terms of the statute embrace a Renaissance painting depicting a scene from classical mythology, a "picture" that "appears to be, of a minor engaging in sexually explicit conduct." The statute also prohibits Hollywood movies, filmed without any child actors, if a jury believes an actor "appears to be" a minor engaging in "actual or simulated . . . sexual intercourse." § 2256(2). These images do not involve, let alone harm, any children in the production process; but Congress decided the materials threaten children in other, less direct, ways. Pedophiles might use the materials to encourage children to participate in sexual activity. "[A] child who is reluctant to engage in sexual activity with an adult, or to pose for sexually explicit photographs, can sometimes be convinced by viewing depictions of other children 'having fun' participating in such activity." Congressional Finding (3), notes following § 2251. Furthermore, pedophiles might "whet their own sexual appetites" with the pornographic images, "thereby increasing the creation and distribution of child pornography and the sexual abuse and exploitation of actual children." Id., Findings (4), (10)(B). Under these rationales, harm flows from the content of the images, not from the means of their production. In addition, Congress identified another problem created by computer-generated images: Their existence can make it harder to prosecute pornographers who do use real minors. See id., Finding (6)(A). As imaging technology improves, Congress found, it becomes more difficult to prove that a particular picture was produced using actual children. To ensure that defendants possessing child pornography using real minors cannot evade prosecution, Congress extended the ban to virtual child pornography.
Section 2256(8)(C) of the CPPA covered any visual depiction modified to appear that an actual minor was engaged in sexually explicit activity. In Ashcroft, the Supreme Court described this provision as prohibiting a more "common and lower tech means of creating virtual images," known as "computer morphing." 535 U.S. at 242. In lieu of creating original images, "morphing" allowed pornographers to "alter innocent pictures of real children so that the children appear to be engaged in sexual activity." Id.
Finally, § 2256(8)(D) defined child pornography to include any sexually explicit image that was "advertised, promoted, presented, described, or distributed in such a manner that convey[ed] the impression" it depicted "a minor engaging in sexually explicit conduct." "This provision prevent[ed] child pornographers and pedophiles from exploiting prurient interests in child sexuality and sexual activity through the production or distribution of pornographic material which is intentionally pandered as child pornography." Id. (citing S.Rep. No. 104-358, p. 22 (1996) (emphasis added)).
In Ashcroft, a California trade association for the adult-entertainment industry challenged §§ 2256(8)(B) and (D) as unconstitutionally overbroad. At the outset of its opinion, the Supreme Court restated the "general principle [that] while the First Amendment bars the government from dictating what we see or read or speak or hear," it did not embrace certain categories of speech "including defamation, incitement, obscenity and pornography produced with real children." 535 U.S. at 245 (citation omitted). Nevertheless, the Court held that the "speech" criminalized in the challenged provisions of the CPPA did not fall into any of the afore-referenced categories. Indeed, the Court found that § 2256 (8)(B) of the CPPA abridged First Amendment freedoms since it extended federal prohibition against child pornography to sexually explicit images that "appeared to" depict minors but were "produced without using any real children." Ashcroft, 535 U.S. at 240. Section 2256(8)(B) criminalized possessing or distributing images which could be created by using adults who only looked like minors or by using advanced computer imaging techniques to "create realistic images of children who do not exist." Id.. "By prohibiting child pornography that [did] not depict an actual child," id., § 2256(8)(B) of the CPPA "abridg[ed] the freedom to engage in a substantial amount of lawful speech" and was therefore overbroad and unconstitutional. Id. at 256.*fn3
Importantly, the Supreme Court rejected an argument raised by the government in Ashcroft which contended that the overbreadth challenge to the CPPA was saved by an affirmative defense under the statute. See Ashcroft, 535 U.S. at 255. The Court found the so- called affirmative defense "incomplete and insufficient," however, in that it allowed distributors, but not mere possessors of child pornography to be exonerated upon showing the objectionable materials were produced using only adults. Id. (citing 18 U.S.C. § 2252A(c)).
C. 2003 Revised Legislation
Almost immediately after the Ashcroft decision was handed down, Congress began an effort to craft responsive legislation. The result was the PROTECT Act which defined child pornography to include, in addition to images of "real" children engaged in sexually explicit conduct, see § 2256(8)(A), digital or computer-generated images that are "indistinguishable" from images of actual minors engaging in sexually explicit conduct, see § 2256(8)(B), and visual depictions that have been created or modified to appear as though an identifiable minor is engaged in sexually explicit conduct. See § 2256(8)(C). The definition of "morphed" child pornography as discussed in Ashcroft remained unchanged as between the CPPA and the PROTECT Act. See id. However, the PROTECT Act extended the affirmative defense that each person depicted in the alleged unlawful material "was an adult at the time the material was produced" to defendants charged under 18 U.S.C. § 2252A(a)(1), (2), (3)(A), (4) and mere possession offenses under (5). The PROTECT Act's new affirmative defense, however, that no "actual minor" was involved in the production of pornographic images, see 18 § 2252A(c)(2) (emphasis added), while available "to most possessors and distributors of these defined materials," see United States v. Williams, 444 F. 3d 1286, 1296, n. 45 (11th Cir. 2006), rev'd on other grounds, --- U.S.----, 128 S.Ct. 1830, 1838 (2008), was notably unavailable to those defendants charged under § 2256(8)(C):
Prosecutions brought under the definition of child pornography contained in section 2256(8)(C) generally charge the accused with having taken the innocent image of an actual child and "morphing" it into a sexually explicit depiction. Under current law (which was not challenged in Ashcroft v. Free Speech Coalition) only one affirmative defense is available in a morphing prosecution: proof that only pictures of adults were used. S. 151 keeps this affirmative defense intact. However, S. 151 explicitly excludes morphing prosecutions from the new affirmative defense that "the alleged child pornography was not produced using any actual minor or minors."
S.Rep. No. 108-002, 51 at n. 2 (2003) (emphasis added).
Based on the principles outlined in Ashcroft and its progeny, defendant asserts that 18 U.S.C. § 2256(8)(C) is unconstitutional as applied to him since it criminalizes mere possession of "morphed" images, that is, images which have been altered to appear to depict identifiable minors engaged in sexually explicit conduct. Defendant contends that no actual child engaged in the conduct or activities depicted in the altered images and they were produced "without exploiting minors." Further, defendant argues that there is no evidence that he distributed or published the morphed images to anyone. Indeed, defendant claims that he created these composite images merely to "record his mental fantasies." Based thereupon, defendant argues that his First Amendment freedoms are infringed by application of 18 U.S.C. § 2256(8)(C) in the indictment.
Because the respondents in Ashcroft did not challenge § 2256(8)(C), the Court did not consider this provision of the CPPA directly. In pointed dicta, however, the Court noted that "[a]lthough morphed images may fall within the definition of virtual child pornography, they implicate the interests of real children and are in that sense closer to the images in Ferber." Ashcroft, 535 U.S at 242. Since Ashcroft, only one Circuit has addressed directly the CPPA's prohibition against the possession and/or distribution of "morphed" images of child pornography. In United States v. Bach, 400 F.3rd Cir. 622 (8th Cir. 2005), the defendant was indicted under the CPPA on various child pornography charges prior to the Supreme Court's decision in Ashcroft. Though the indictment charged defendant Bach with criminal conduct that had occurred in or about August 2000, an interlocutory appeal delayed Bach's trial until after Ashcroft was decided in 2002. Bach was thereafter convicted of receipt of child pornography under 18 U.S.C. § 2252A(a)(2) after a jury found he had knowingly received a visual depiction that "involve[d] the use of a minor engaging in sexually explicit conduct" or "ha[d] been created, adapted, or modified to appear that an identifiable minor [was] engaging in sexually ...