New Ninth Circuit Decision Raises Questions About Obscenity


SEATTLE – The Ninth Circuit U.S. Court of Appeals' decision in United States v. Winston Davenport, published yesterday, raises some interesting questions about how the law looks at the relationship between possession of child pornography and the receiving of same – but the Court's words, taken at face value, suggest that federal laws against "interstate transportation of obscenity" also need to be reexamined.

The original case was simple enough. Immigration and Customs Enforcement (ICE) agents in Helena, Montana, had "learned" – the decision doesn't say how, but this might be a clue – that an IP address associated with Winston Davenport had been used to download child porn through a file-sharing program. The feds then seized Davenport's computer and found multiple still and video images containing child porn thereon, some of which "depicted violence or involved children under the age of twelve."

Thereafter, Davenport was indicted on one count of "receiving child pornography" in violation of 18 U.S.C. §2252A(a)(2), one count of "possessing child pornography" in violation of 18 U.S.C. §2252A(a)(5)(B) – and, of course, one count of forfeiture under 18 U.S.C. §2253(a), under which, if found guilty of the other two counts, would require Davenport to relinquish all rights to the computer containing the kiddie porn.

Davenport pleaded guilty, but later argued that his sentence for both receipt and possession of child porn was impermissible because, since he had to receive the porn in order to possess it, convicting him of both crimes was a violation of the Fifth Amendment's Double Jeopardy Clause; essentially, convicting him twice for the same act.

"When a defendant has violated two different criminal statutes, the double jeopardy prohibition is implicated when both statutes prohibit the same offense or when one offense is a lesser included offense of the other," wrote Judge Ronald M. Gould for the majority. "If two different criminal statutory provisions indeed punish the same offense or one is a lesser included offense of the other, then conviction under both is presumed to violate congressional intent."

In so stating, the Court was applying what's known as the "Blockburger test," from Blockburger v. U.S., a 1932 case dealing with the question of whether a certain narcotics transaction was, for sentencing purposes, two sales or one.

"Davenport advances this basic proposition that we have adopted in other statutory contexts: It is impossible to 'receive' something without, at least at the very instant of 'receipt,' also 'possessing' it," Gould recounted. "From this, Davenport urges us to conclude that the offenses described in 18 U.S.C. §2252A(a)(2) also cover the offenses described in 18 U.S.C. §2252A(a)(5)(B), so that possession is a lesser included offense of receipt. Davenport asserts that, while the government may have been within constitutional boundaries to include both offenses in the indictment, and could permissibly have continued to prosecute Davenport for both offenses through trial ... entering judgment against him on these counts was multiplicitous and therefore in violation of the Fifth Amendment's prohibition of double jeopardy. We agree." [Citations omitted here and below]

The government, obviously, disagreed, arguing that there were elements of the possession charge that were not present in the receipt charge, and vice versa. But the Court saw through that claim.

"Because possession's nexus requirement can be met in one of two ways and receipt's nexus requirement is one of those two ways," the Court wrote, "then at least as to the interstate commerce nexus, a conviction for receipt necessarily includes proof of the elements required for conviction under possession, and possession is a lesser included offense of receipt."

After doing a Blockburger analysis of the government's argument that the affirmative defenses set forth in §2252A(d) – that the defendant possessed less than three images, and took reasonable steps to destroy each image or report their existence to law enforcement – and finding that there's a difference between those defenses and the actual elements of the crime, the Court dismissed that argument and moved on to a somewhat more nebulous subject: Congressional intent.

"Having concluded that the conviction presents a problem under the Blockburger analysis, we turn to the dissent’s argument that congressional intent nonetheless mandates that we uphold the multiplicitous conviction," Gould wrote. "As the dissent notes, '[t]he Blockburger test is a "rule of statutory construction," and because it serves as a means of discerning congressional purpose the rule should not be controlling where, for example, there is a clear indication of contrary legislative intent.' ... We disagree with the dissent’s conclusion that Congress has 'clearly expressed' a 'legislative intention to the contrary.' Relying on [Missouri v.] Hunter, the dissent argues that Congress, by listing multiple harms associated with child pornography and indicating a purpose to treat child pornography severely, manifested its intent to impose multiple punishments even if the crimes were the same under the Blockburger test. First, the dissent asserts that Congress identified two distinct harms. Yet nowhere in its congressional findings does Congress explicitly frame receipt and possession as two distinct harms; the dissent's characterization of two distinct harms emanating from receipt and possession, while perhaps reasonable, is superimposed onto Congress's findings. An equally plausible interpretation of Congress's findings is that the harms Congress identified emanate from the general existence of child pornography, and relate simultaneously to both receipt and possession of those illicit materials." [Emphasis added]

That's a particularly interesting interpretation by the Ninth Circuit: That Congress' focus was on the harm intrinsic to the existence of the child pornography material itself, and therefore didn't intend to pile on additional penalties for "possession" when the defendant was charged with receipt of the material.

Of course, with "illegal adult pornography" – that is, obscenity – the exact same logic applies – or should apply: In Stanley v. Georgia, the Supreme Court ruled that U.S. citizens have an absolute right to possess obscenity in the privacy of their own homes, even as it affirmed the Court's previous ruling in Roth v. United States that it was illegal to mail the material.

"Roth and the cases following it discerned ... an 'important interest' in the regulation of commercial distribution of obscene material," Justice William Brennan wrote in the Stanley decision. "That holding cannot foreclose an examination of the constitutional implications of a statute forbidding mere private possession of such material. It is now well established that the Constitution protects the right to receive information and ideas. This right to receive information and ideas, regardless of their social worth, is fundamental to our free society. Moreover, in the context of this case -- a prosecution for mere possession of printed or filmed matter in the privacy of a person's own home -- that right takes on an added dimension. For also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one's privacy."

One of the intrusions the high court was willing to bear was the interception of such material in its journey from its maker or retailer to the ultimate citizen recipient ... but once inside the home, the Court ruled that all government interest in it stopped.

"If the First Amendment means anything," Brennan wrote, "it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds."

In other words, unlike with child porn, the Court saw no intrinsic harm in adults possessing obscenity, recognizing that "The makers of our Constitution ... recognized the significance of man's spiritual nature, of his feelings and of his intellect [and] sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations." This is in contrast to possession of child pornography, which the Supreme Court has already ruled is a harm because of its very existence, and mere possession of it is a crime.

Therefore, is there not some logic to the idea that if possession of sexual material – in this case, child porn, but it could as easily apply to obscenity – is a subset of its receipt by mail or other common carrier, and if the "harms" of child porn "emanate from the general existence of child pornography," since in order to make it, children must be sexually molested – whereas apparently no harms emanate from the mere existence of obscenity – wouldn't the lack of intrinsic harm of obscenity suggest that whether one possesses it (already legal under Stanley) or receives it, Congress should be constitutionally unable to create the crime of "interstate transportation of obscene material"?

That's certainly the logic implicit (though admittedly directly contradicted) in Stanley, and the Ninth Circuit skirts that same logic in the Davenport opinion. But is Davenport possibly a sign that the courts will soon reconsider whether the transportation – or even sale or distribution – of legally possessable material (obscenity) should be illegal, given that its mere possession is considered harmless, or at least that the Constitution (according to Stanley) prohibits the government from entering the home and seizing it?

We can only hope!