United States v. Gendron

March 2, 1994
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 92-2003

UNITED STATES,
Appellee,

v.

DANIEL A. GENDRON,
Defendant, Appellant.

ERRATA SHEET

Please make the following correction in the opinion in
the above case released on February 28, 1994:

Appendix, Page 44, line 4: insert the word "suspected"
before the word "child".

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 92-2003

UNITED STATES,

Appellee,

v.

DANIEL A. GENDRON,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Jose Antonio Fuste,* U.S. District Judge]

Before

Breyer, Chief Judge,

Boudin, Circuit Judge,

Pollak,** Senior District Judge.

Jonathan S. Sales, by Appointment of the Court, with whom The Law

Office of William P. Homans, Jr. was on brief for appellant.

Robert E. Richardson with whom A. John Pappalardo, United States

Attorney, and James F. Lang, Assistant United States Attorney, were on

brief for appellee.

February 28, 1994

* Of the District of Puerto Rico, sitting by designation.
** Of the Eastern District of Pennsylvania, sitting by designation.

BREYER, Chief Judge. Daniel Gendron ordered and

received a videotape that contained child pornography.

Though he did not know it, the firm that sent him the tape

was part of a law enforcement operation designed to catch

child pornography buyers. A jury subsequently convicted

Gendron of knowingly receiving child pornography through the

mails. 18 U.S.C. 2252(a)(2). He now appeals that

conviction, claiming that the child pornography statute is

unconstitutional, that the government unlawfully entrapped

him, and that the government's search warrant (for the tape

in his house) was constitutionally defective. After

considering these and other related claims, we affirm the

conviction.

I

The Statute's Constitutionality

The child pornography statute reads as follows:

(a) Any person who --

. . .

(2) knowingly receives, or distributes,

any visual depiction that has been

mailed, or has been shipped or

transported in interstate or foreign

commerce, or which contains materials

which have been mailed or so shipped or
transported, by any means including by
computer, or knowingly reproduces any
visual depiction for distribution in
interstate or foreign commerce by any

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means including by computer or through
the mails, if --

(A) the producing of such visual

depiction involves the use of a

minor engaging in sexually explicit

conduct; and

(B) such visual depiction is of

such conduct;

. . .

shall be punished as provided in subsection

(b) . . . .

18 U.S.C. 2252(a)(2) (emphasis added). Gendron points out

that the Ninth Circuit has interpreted this statute as

permitting a conviction of a person who does not know the

child-pornographic nature of the material received, and, for

that reason, has found it unconstitutional. See United

States v. X-Citement Video, 982 F.2d 1285 (9th Cir. 1992),

petition for cert. filed, 62 U.S.L.W. 3360 (1993). He says

we should do the same.

The Ninth Circuit, in United States v. Thomas, 893

F.2d 1066 (9th Cir.), cert. denied, 498 U.S. 826 (1990),

considered the scope of the statute's word "knowingly." It

held that "knowingly" modifies only the statute's word

"receives" (or "reproduces"), not its subclause (A) or (B).

Consequently, it "does not require" that a defendant "knew

that the pornography he . . . received involved a minor."

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Id. at 1070. Two years later, in X-Citement Video, the

Ninth Circuit pointed out that the statute, as so

interpreted, would permit conviction of a person who

"knowingly receives" a video, but does not know that the

video contains child pornography. Because that

interpretation would permit conviction of a person with an

innocent state of mind, the court found the statute

unconstitutional. X-Citement Video, 982 F.2d at 1292; see

New York v. Ferber, 458 U.S. 747, 765 (1982) (child

pornography statutes must involve "some element of scienter"

to pass constitutional muster).

We do not accept the Ninth Circuit's conclusion

that the statute is unconstitutional, however, because we do

not agree with the statutory premise set forth in Thomas.

In our view, and in the view of all courts to have

considered the matter since the X-Citement Video decision,

see United States v. Edwards, No. 92-CR-884, 1993 WL 453461

(N.D. Ill. Nov. 4, 1993); United States v. Long, 831 F.

Supp. 582 (W.D. Ky. 1993); United States v. Kempton, 826 F.

Supp. 386 (D. Kan. 1993); United States v. Prytz, 822 F.

Supp. 311 (D.S.C. 1993), the statute's word "knowingly"

modifies not only the word "receives," but also the

statute's description of the "receive[d]" material's

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pornographic content. That is to say, we understand the

statute to require for conviction that the government prove

not only that the defendant "knowingly receive[d]" material

that he knows contains a "visual depiction" of a person

"engaging in sexually explicit conduct," but also that the

defendant knows that the person so depicted is a minor.

Accord Edwards, 1993 WL 453461 at *5; Long, 831 F. Supp. at

586; Kempton, 826 F. Supp. at 389; Prytz, 822 F. Supp. at

321.

We concede that one cannot know automatically,

simply from the position of the words in the sentence, just

which of the words following "knowingly" the word

"knowingly" is meant to modify. However, that linguistic

fact simply reflects the more basic fact that statements,

and parts of statements, quite often derive their meaning

from context. The sentence "John knows that people speak

Spanish in Tegucigalpa, which is the capital of Honduras,"

taken by itself, leaves us uncertain whether or not John

knows that Tegucigalpa is the capital of Honduras; but, the

context of the story in which the sentence appears, a

context that includes other sentences, may clear up our

uncertainty and leave us with no doubt at all.

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Similarly, when courts interpret criminal

statutes, they draw upon context, including the statute's

purpose and various background legal principles, to

determine which states of mind accompany which particular

elements of the offense. Thus, courts normally hold that

the prosecutor need not prove the defendant's state of mind

in respect to "jurisdictional facts" (for example, that an

assault victim was a federal officer, or that stolen checks

moved in the mail), whatever the mental state required for

the crime's other elements. E.g., United States v. Feola,

420 U.S. 671, 676-86 (1975); Barnes v. United States, 412

U.S. 837, 847 (1973); United States v. Blassingame, 427 F.2d

329, 330 (2d Cir. 1970), cert. denied, 402 U.S. 945 (1971);

see generally S. Rep. No. 307, 97th Cong., 1st Sess. 72-74

(1981). Context (what ordinarily counts as bad behavior;

the reason why Congress mentions jurisdictional facts;

etc.), in addition to the position of words in a sentence,

helps a court decide how, and when, to interpret statutes as

incorporating states of mind. See, e.g., Blassingame, 427

F.2d at 330.

The background context here includes the fact

that, when a criminal statute is totally silent about state

of mind (as is commonly the case), courts nonetheless assume

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that Congress intended to require some kind of guilty

knowledge with respect to major wrong-creating elements of

major crimes. Liparota v. United States, 471 U.S. 419, 426

(1985) (courts should not read criminal statutes as

"requiring no mens rea"); United States v. United States

Gypsum Co., 438 U.S. 422, 438 (1978) (in criminal statutes,

"far more than the simple omission of the appropriate phrase

from the statutory definition is necessary to justify

dispensing with an intent requirement"); Morissette v.

United States, 342 U.S. 246, 255-56, 263 (1952).

Thus, had the word "knowingly" not appeared at all

in the child pornography statute, courts (while not

insisting upon "knowledge" of the "interstate commerce"

element of the offense, see supra pp. 5-6) would have

insisted nonetheless that prosecutors prove a guilty state

of mind in respect to the nature of the material. For one

thing, the fact that the material shows a child engaging in

sexually explicit activity is not a secondary, or

jurisdictional, aspect of the crime. It is the moral and

criminal heart of the matter. For another thing, without

such a requirement, the statute would severely punish purely

innocent conduct. It would reach, for example, a post

office employee who "knowingly distributes" mail but knows

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nothing of its contents, or a film developer who for some

reason returns an undeveloped roll of film to a customer.

Congress could not have intended these results. Pp. 8-12,

infra; see United States v. Turkette, 452 U.S. 576, 580

(1981) (courts must construe statutes to avoid absurd

results); United States v. Ferryman, 897 F.2d 584, 589 (1st

Cir. 1990) (same). Finally, as X-Citement Video itself

demonstrates, to read this criminal statute as "requiring no

mens rea" (contrary to Liparota, 471 U.S. at 426) likely

makes it unconstitutional. See New York v. Ferber, 458 U.S.

747, 765 (1982) (criminalization of child pornography must

involve "some element of scienter on the part of the

defendant"); see also Osborne v. Ohio, 495 U.S. 103, 113

n.9, 115 (1990) (same; "recklessness" suffices). Such an

interpretation therefore violates courts' duty to interpret

federal statutes so that they are consistent with the

federal Constitution whenever possible. E.g., Edward J.

DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades

Council, 485 U.S. 568, 575 (1988).

If we would interpret a silent statute as imposing

a guilty state of mind requirement, how could Congress's

explicit use of the word "knowingly" eliminate it? It seems

far more likely that Congress used the word "knowingly" to

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make clear that it did intend to insist that a defendant

know the child-pornographic nature of the material. The

legislative history confirms this view. For example,

Senator Roth, the author of the amendment which extended the

original bill to distribution as well as production, was

asked whether the amendment meant that

the distributor or seller must have
[either] actual knowledge that the
materials do contain child pornographic
depictions, or [that] he should have had
such actual knowledge.

He responded:

That is absolutely correct. This
amendment, limited as it is by the
phrase "knowingly," insures that only

those sellers and distributors who are
consciously and deliberately engaged in

the marketing of child pornography and

thereby are actively contributing to the
maintenance of this form of child abuse
are subject to prosecution under this
amendment.

123 Cong. Rec. 33,050 (1977) (emphasis added). The language

to which Senator Roth referred found its way into the final

law (with minor stylistic changes). Compare 123 Cong. Rec.

33,061 (1977) (Senate bill with Roth amendment) with Pub. L.

No. 95-225, 2(a), 92 Stat. 7, 7-8 (1978) (final version).

Furthermore, the Department of Justice wrote

Congress a letter in which it told Congress that the

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use of the word "knowingly" in
subsection 2252(a)(1) is appropriate to
make it clear that the bill does not

apply to . . . innocent transporters who

have no knowledge of the nature or

character of the material they are

transporting.

S. Rep. No. 438, 95th Cong., 2d Sess. 29 (1978), reprinted

in 1978 U.S.C.C.A.N. 40, 64 (emphasis added) [hereinafter

"Report"]. Thus, the Department and the amendment's author

agreed that the point of the statute's explicit use of the

word "knowingly" lies in the application of that word to the

nature of the material's contents, not to the nature of its

distribution or receipt.

It is true that the Department also said, in a

different context,

We assume that it was not the intention

of the drafters to require the
Government to prove that the defendant

knew the child was under age sixteen but

merely to prove that the child was, in
fact, less than age sixteen.

Id., 1978 U.S.C.C.A.N. at 64 (emphasis added). In saying

this, however, the Department was referring to a different

statutory provision -- one that penalized production, not

distribution. And Congress responded by dropping the word

"knowingly" from the production section of the statute, but

not from the distribution section. H.R. Conf. Rep. No. 811,

95th Cong., 2d Sess. 5, reprinted in 1978 U.S.C.C.A.N. 69,

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69; compare Pub. L. No. 95-225, 2251(a), 92 Stat. 7, 7

(1978) (knowledge not required in production prosecution)

with id. 2252(a), 92 Stat. at 7-8 (knowledge required in

distribution or receipt prosecution).

Finally, we concede that at one point the

Department's letter suggests that there be no knowledge

requirement with respect to age, even for distribution

prosecutions. It said,

To clarify the situation, the
legislative history might reflect that
the defendant's knowledge of the age of

the child is not an element of the

offense, but that the bill is not

intended to apply to innocent

transportation with no knowledge of the

nature or character of the material

involved.

Report, supra, at 29, 1978 U.S.C.C.A.N. at 64 (emphasis

added). We have found nothing in the statute or the

legislative history, however, to suggest that Congress

adopted this recommendation. To the contrary, the

legislative history reveals congressional awareness of the

important constitutional differences between adult and child

pornography, the likely constitutional significance of age,

and the concomitant constitutional need for a guilty state

of mind requirement with respect to age. See, e.g., 123

Cong. Rec. 33,048 (1977) (statement of Sen. Goldwater); id.

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at 33,051 (statement of Sen. Hatch). In light of this

background, we conclude that the statute's word "knowingly"

applies to age as well as to conduct. That being so, we

find no constitutional obstacle to application of the

statute in the case before us. (We note that while this

opinion was circulating in draft form among the members of

this panel, another panel of this court reached the same

conclusion. See United States v. Gifford, No. 93-1645, slip

op. at 20-23 (1st Cir. Feb. , 1994).)

II

Entrapment

The evidence in this case demonstrated rather

convincingly that Gendron ordered and received a videotape

that he knew contained child pornography. Consequently,

Gendron's strongest evidence-based claim does not deny his

having engaged in conduct that violates the statute.

Rather, he argues that the evidence shows the government

"entrapped" him into doing so. Gendron notes that the

entrapment defense has two parts: (1) the government's

"inducement" of criminal behavior; (2) by a defendant who

was not "predisposed" to commit the crime. See, e.g.,

United States v. Rodriguez, 858 F.2d 809, 812-15 (1st Cir.

1988) (setting forth elements of entrapment and relevant

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evidentiary burdens). Although the court submitted the

entrapment issue to the jury, which found against Gendron,

he argues that the evidence did not support the jury's

verdict. He says that it did not allow the government to

rebut his claim of "inducement," nor was it sufficient to

show (beyond a reasonable doubt) his "predisposition" to

commit the crime. Consequently, he says, particularly in

light of a recent Supreme Court case that accepted rather

similar arguments, Jacobson v. United States, 112 S. Ct.

1535 (1992), the law requires a judgment of acquittal.

It may help in evaluating Gendron's argument if we

set forth in simplified terms our understanding of the

entrapment defense and its elements. (For more

comprehensive accounts, see, e.g., Rodriguez, supra; S. Rep.

No. 307, 97th Cong., 1st Sess. 118-30 (1981); LaFave &

Scott, Substantive Criminal Law 5.2 (1986); Louis M.

Seidman, The Supreme Court, Entrapment, and Our Criminal

Justice Dilemma, 1981 Sup. Ct. Rev. 111.) The Supreme Court

has described that defense as resting upon an assumption

that Congress, when enacting criminal statutes, does not

intend the statute to apply to violations arising out of (1)

the government's "abuse" of its crime "detection" and law

"enforcement" efforts by "instigati[ng]" the criminal

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behavior and "lur[ing]" to commit the crime (2) persons who

are "otherwise innocent." Sorrells v. United States, 287

U.S. 435, 448 (1932) (emphasis added). Consequently, the

entrapment doctrine forbids punishment of an "otherwise

innocent" person whose "alleged offense" is "the product of

the creative activity" of government officials. Id. at 451

(emphasis added). As the Supreme Court has recently stated,

When the Government's quest for
conviction leads to the apprehension of
an otherwise law-abiding citizen who, if

left to his own devices, likely would

have never run afoul of the law, the
courts should intervene.

Jacobson, 112 S. Ct. at 1543 (emphasis added). Since the

Court has repeatedly expressed concern about both government

"abuse" of its enforcement powers (or the like) and the

"otherwise law-abiding citizen" (or the like), it is not

surprising that the defense has two parts, one that focuses

upon government "inducement" and the other upon the

defendant's "predisposition."

In describing "inducement," courts have

distinguished between proper and improper law enforcement

activities. It is proper (i.e., not an "inducement") for

the government to use a "sting," at least where it amounts

to providing a defendant with an "opportunity" to commit a

crime. E.g., Sorrells, 287 U.S. at 441; Sherman v. United

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States, 356 U.S. 369, 372 (1958); United States v. Coady,

809 F.2d 119, 122 (1st Cir. 1987); United States v. Espinal,

757 F.2d 423, 425 (1st Cir. 1985). Without this kind of law

enforcement weapon, it would often prove difficult, or

impossible, to stop certain seriously criminal activity,

particularly activity involving drugs, or corruption, or

other crimes in which no direct participant wants the crime

detected. See Hampton v. United States, 425 U.S. 484, 495

n.7 (1976) (Powell, J., concurring in judgment); United

States v. Bradley, 820 F.2d 3, 6 (1st Cir. 1987).

An improper "inducement," however, goes beyond

providing an ordinary "opportunity to commit a crime."

Jacobson, 112 S. Ct. at 1541. An "inducement" consists of

an "opportunity" plus something else -- typically, excessive

pressure by the government upon the defendant or the

government's taking advantage of an alternative, non-

criminal type of motive. A "sting" that combines an

ordinary opportunity with these extra elements runs the risk

of catching in the law enforcement net not only those who

might well have committed the crime elsewhere (in the

absence of the sting), but also those who (in its absence)

likely would never have done so. Insofar as the net catches

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the latter, it stretches beyond its basic law enforcement

purpose.

Some examples of improper "inducement" may help.

Courts have found a basis for sending the entrapment issue

to the jury (or finding entrapment established as a matter

of law) where government officials: (1) used "intimidation"

and "threats" against a defendant's family, United States v.

Becerra, 992 F.2d 960, 963 (9th Cir. 1993); (2) called every

day, "began threatening" the defendant, and were

belligerent, United States v. Groll, 992 F.2d 755, 759 (7th

Cir. 1993); (3) engaged in "forceful" solicitation and

"dogged insistence until [defendant] capitulated,"

Rodriguez, 858 F.2d at 815; (4) played upon defendant's

sympathy for informant's common narcotics experience and

withdrawal symptoms, Sherman, 356 U.S. at 373; (5) played

upon sentiment of "one former war buddy . . . for another"

to get liquor (during prohibition), Sorrells, 287 U.S. at

440-41; (6) used "repeated suggestions" which succeeded only

when defendant had lost his job and needed money for his

family's food and rent, United States v. Kessee, 992 F.2d

1001, 1003 (9th Cir. 1993); (7) told defendant that she (the

agent) was suicidal and in desperate need of money, United

States v. Sullivan, 919 F.2d 1403, 1419 & n.21 (10th Cir.

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1990). The background and context of each example

illustrate possible government "overreaching" -- of its

having acted unfairly by employing

methods of persuasion or inducement that
create a substantial risk that such an
offense will be committed by persons
other than those who are ready to commit
it.

Model Penal Code 2.13(1)(b).

The second part of the entrapment defense,

"predisposition," is somewhat more difficult to understand.

Some Supreme Court Justices (and the Model Penal Code's

authors) have argued that "predisposition" is not even

relevant. Rather, they thought that the defense should

focus only upon government impropriety, preventing law

enforcement officers from using methods that might lead

ordinary law-abiding citizens astray, whether or not the

particular defendant was "predisposed" to commit the crime.

See, e.g., Model Penal Code 2.13; Sorrells, 287 U.S. at

453 (Roberts, J., joined by Brandeis & Stone, JJ.,

concurring) (arguing for this "objective" view of the

defense); Sherman, 356 U.S. at 378 (Frankfurter, J., joined

by Douglas, Harlan & Brennan, JJ., concurring) (same). The

Supreme Court itself, however, has rejected this view. It

saw in the entrapment defense not so much a sanction used to

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control police conduct, but rather a protection of the

ordinary law-abiding citizen against government

overreaching. Consequently, it saw no need to permit a

defendant to take advantage of that defense unless he

himself was such a citizen. See, e.g., Sorrells, 287 U.S.

at 448; Sherman, 356 U.S. at 376-77; United States v.

Russell, 411 U.S. 423, 433-35 (1973). The upshot is that we

must find out just who that "innocent person" is. Who is

the "otherwise law-abiding citizen" who would not

"otherwise" have committed the crime?

The question's difficulty lies in the word

"otherwise." That word requires us to abstract from present

circumstances. We cannot simply ask whether, without the

government's present activity, the defendant would likely

have committed the crime when he did. After all, without

the government's having presented that opportunity, the

defendant, no matter how "predisposed," would likely not

have acted then. Nor can we simply ask whether the

defendant would have acted similarly at some other time had

he faced similar circumstances, since his present behavior

virtually compels an affirmative answer to the question

phrased in this way.

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The right way to ask the question, it seems to us,

is to abstract from -- to assume away -- the present

circumstances insofar as they reveal government

overreaching. That is to say, we should ask how the

defendant likely would have reacted to an ordinary

opportunity to commit the crime. See Jacobson, 112 S. Ct.

at 1540 n.2. By using the word "ordinary," we mean an

opportunity that lacked those special features of the

government's conduct that made of it an "inducement," or an

"overreaching." Was the defendant "predisposed" to respond

affirmatively to a proper, not to an improper, lure?

This way of looking at the matter seems to flow

from the way in which the Supreme Court has resolved the

clash between "objective" and "subjective" views of

entrapment -- at least if one looks at that resolution as

simply denying the defense to one whom it is not designed to

help, namely the kind of defendant who (without a "sting")

might well be out committing crimes of the sort that a

"sting" seeks to stop. See Russell, 411 U.S. at 434.

Further, our effort to define "predisposition" through

reference to the nature of the government conduct reflects

the fact that, despite partial descriptions that focus

primarily upon the defendant's state of mind, government

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misconduct lies at the heart of the entrapment defense.

Were that not so -- were the issue simply the defendant's

state of mind -- the law would permit an innocent minded

defendant to raise an entrapment claim when a private person

"induced" him (through similar "overreaching" conduct) to

commit a crime. But the law does not authorize the defense

in those circumstances, however "outrageous" the private

person's conduct. E.g., Russell, 411 U.S. at 433; United

States v. Jones, 950 F.2d 1309 (7th Cir. 1991); United

States v. Bradley, 820 F.2d 3, 6 (1st Cir. 1987); United

States v. Emmert, 829 F.2d 805 (9th Cir. 1987); United

States v. McLernon, 746 F.2d 1098 (6th Cir. 1984); Whiting

v. United States, 321 F.2d 72, 76 (1st Cir. 1963).

Finally, this way of phrasing the question

prevents one from concluding automatically, simply from the

fact that the defendant committed the crime, that he was

"predisposed" to commit it. At the same time, if the answer

to the question so phrased is affirmative, the defendant

would seem to be the sort of person (and his conduct in this

instance is the sort of conduct) that the criminal statute

intends to punish. He is, in other words, someone who would

likely commit the crime under the circumstances and for the

reasons normally associated with that crime, and who

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therefore poses the sort of threat to society that the

statute seeks to control, and which the government, through

the "sting," seeks to stop.

We turn now to Jacobson v. United States, the

recent child pornography case where the Supreme Court found

entrapment as a matter of law, and upon which Gendron

heavily relies. Government agents found Jacobson's name on

a bookstore mailing list that indicated that the store had

mailed photos of naked children to Jacobson. Government

agents then sent Jacobson letters from fictitious people and

organizations, soliciting orders for child pornography. In

three respects, however, they did more than provide an

ordinary opportunity to buy child pornography: First, the

solicitations reflected a psychologically "graduated" set of

responses to Jacobson's own noncriminal responses, beginning

with innocent lures and progressing to frank offers. The

government started with a "sexual attitude questionnaire,"

which elicited a general interest in "pre-teen sex"; it

followed with letters containing general, nonexplicit

references implying a possibility of child pornography; it

then sent Jacobson more personal correspondence; and,

finally (but after Jacobson had discontinued the

correspondence), it sent him child pornography catalogues.

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112 S. Ct. at 1538-39. Second, the government's soliciting

letters sometimes depicted their senders as "free speech"

lobbying organizations and fighters for the "right to read

what we desire"; they asked Jacobson to "fight against

censorship and the infringement of individual rights." Id.

at 1538, 1542. Third, the government's effort to provide an

"opportunity" to buy child pornography stretched out over

two and a half years. Taken together, one might find in

these three sets of circumstances -- the graduated response,

the long time period, the appeal to a proper (free speech)

motive -- a substantial risk of inducing an ordinary law-

abiding person to commit the crime. Indeed, the government

conceded in Jacobson that its methods amounted, for

entrapment purposes, to an improper "inducement." Id. at

1540 n.2.

Jacobson's importance, however, concerns the

"predisposition" part of the entrapment defense. The Court

held that the evidence, as a matter of law, required

acquittal because a reasonable jury would have had to doubt

Jacobson's predisposition. The evidence of predisposition

consisted of two facts: (1) that before the government

became involved Jacobson was on a private bookstore's

mailing list for dubious photos; and (2) that he responded

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affirmatively to the government's solicitations. The first

fact, the Court wrote, showed little about a predisposition

to act unlawfully because ordering the photos was lawful at

the time. 112 S. Ct. at 1542. The second, placing orders,

could not show how Jacobson would have acted had the

solicitation lacked the three elements we just mentioned,

namely, the improper appeals to anti-censorship motives, the

graduated response, and the lengthy time frame. Id. at

1542-43. The government therefore failed to show

"predisposition" (beyond a reasonable doubt). That means

(as we understand it) that the government's evidence did not

show how Jacobson would have acted had he been faced with an

ordinary "opportunity" to commit the crime rather than a

special "inducement."

Gendron's case is similar to Jacobson's in two

respects. The government initially found Gendron's name on

a "naked children" mailing list, and the government sent him

child pornography solicitations over a fairly long period of

time (one of the "sham" companies was also involved in

Jacobson). There are, however, two critical differences.

First, any governmental "overreaching" here was

less extensive than in Jacobson. The government neither

"graduated" its responses (from innocent lure to frank

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offer) nor, with one exception, did it appeal to any motive

other than the desire to see child pornography. The

exception consists of one solicitation (also present in

Jacobson) in which the government's sham company referred to

"hysterical nonsense" about pornography, and asked why the

government was "spending millions of dollars to exercise

international censorship while tons of drugs" enter the

country "easily." Nonetheless, here the government did not

disguise itself as a "sexual rights" lobbying organization,

seeking to lobby Congress to remove restraints and funding

its efforts through pornographic catalogue sales. Nor did

the government ask Gendron to commit the crime as a matter

of principle. See 112 S. Ct. at 1538-39, 1542. Since the

"overreaching" here was far less extensive than in Jacobson,

there is less reason to believe that government

"overreaching" (i.e., an improper "inducement") could lead

an "otherwise innocent" person to commit the crime. See

Gifford, No. 93-1645, slip op. at 15-16.

Second, the record contains substantial evidence

of Gendron's state of mind; that evidence permits the

conclusion that (inducement or not) he was "predisposed" to

commit the crime. In late 1986, when Gendron first received

a verbally explicit "child pornography" catalogue from the

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25

government's sham company, he placed an order accompanied by

a letter in which he said,

I have finally found the kind of
educational material I've been dreaming
of possessing for quite some time. I .
. . [am so] excited that I have decided
to order two of your titles . . . .

The government did not fill the order, but three years later

Gendron responded to a letter from another sham, a pretend

foreign company, which spoke of "hard to obtain erotica."

He wrote,

I am very interested in the other part
of your services that are very difficult
to obtain in my country. . . . I am
becoming very bored with adult
pornography . . . . I like very young
girls only and color videos. Can you
help me.

The sham firm responded with an explicit child pornography

catalogue, and Gendron ordered several of the titles.

(Again the government did not fill the order.) A few months

later the government sent Gendron a third explicit child

pornography catalogue. Gendron sent back an order and a

check. Two months later, he wrote again, asking if the firm

had "forgotten" his order, making clear that he still wanted

"this type of educational materials," stating, "don't worry,

I am not connected in any way with law enforcement," and

adding "Please Hurry." (This time the government filled the

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26

order with the video that led to this prosecution.) Unlike

Jacobson's correspondence, Gendron's correspondence reveals

only a desire to view child pornography; it contains nothing

like Jacobson's urging of a "counter attack" against those

"who are determined to curtail our freedoms." 112 S. Ct. at

1538. (See Appendix for a detailed chronology of the events

in Gendron's case.)

This evidence, taken together, reveals a defendant

who met an initial opportunity to buy child pornography with

enthusiasm, who responded to each further government

initiative with a purchase order, and who, unlike Jacobson,

showed no particular interest in an anti-censorship

campaign. This evidence, as we have said, permits a jury to

find (beyond a reasonable doubt) that Gendron would have

responded affirmatively to the most ordinary of

opportunities, and, hence, was "predisposed" to commit the

crime. We therefore find the jury's entrapment decision

lawful.

III

Search and Seizure

Government agents searched Gendron's house, and

seized the primary piece of evidence (the videotape),

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27

pursuant to a warrant. That warrant authorized (1) a search

of

the residence of Daniel A. Gendron, 105
Winthrop Street, Rehoboth, Massachusetts
02769;

for (2) a "VHS videocassette labeled PTL (1)" and related

items; (3) "after delivery by mail to and receipt by Daniel

Gendron" of a specifically described parcel (containing the

tape) until the expiration of the warrant (ten days after

its issuance). Gendron concedes that the warrant meets the

Constitution's two basic requirements: its issuance was

supported by "probable cause" to believe that evidence of

criminal activity would exist in his house after the

delivery of the tape; and it "particularly describ[es] the

place to be searched, and the . . . things to be seized."

U.S. Const. amend. IV. He claims that it is nonetheless

invalid because it is an "anticipatory warrant" which fails

adequately to specify the time at which it will take effect.

Gendron cites in support a recent case decided by a

different panel of this court, United States v.

Ricciardelli, 998 F.2d 8 (1st Cir. 1993).

In general, the simple fact that a warrant is

"anticipatory" -- i.e., that it takes effect, not upon

issuance, but at a specified future time -- does not

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28

invalidate a warrant or make it somehow suspect or legally

disfavored. Warrants often do specify that they will take

effect upon issuance. But the Constitution imposes no such

requirement. Rather, it says that a search must not be

"unreasonable," and that warrants must be supported by

"probable cause." U.S. Const. amend. IV. There is nothing

unreasonable about authorizing a search for tomorrow, not

today, when reliable information indicates that, say, the

marijuana will reach the house, not now, but then. Nor does

it seem automatically unreasonable to tie the warrant's

search authority to the future event that brings with it the

probable cause (e.g., the time of "delivery of a large brown

package addressed to X with return address Y").

Ricciardelli, 998 F.2d at 10-11. In principle, the use of a

"triggering event" can help assure that the search takes

place only when justified by "probable cause"; and

anticipatory warrants may thereby offer greater, not lesser,

protection against unreasonable invasion of a citizen's

privacy. As one commentator has put it,

as a general proposition the facts put
forward to justify issuance of an
anticipatory warrant are more likely to
establish that probable cause will exist
at the time of the search than the
typical warrant based solely upon the
known prior location of the items to be
searched at the place to be searched.

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29

2 Wayne R. LaFave, Search and Seizure 3.7(c), at 97 (2d

ed.

1987). Were "anticipatory warrants" unlawful, law

enforcement agents would have to wait until the triggering

event occurred; then, if time did not permit a warrant

application, they would have to forego a legitimate search,

or, more likely, simply conduct the search (justified by

"exigent circumstances") without any warrant at all. See

Vale v. Louisiana, 399 U.S. 30, 34-35 (1970); 2 LaFave,

supra, 6.5. We are not surprised that courts have found

"anticipatory warrants," considered as a class, perfectly

consistent with the Constitution. E.g., Ricciardelli, 998

F.2d at 10-11; United States v. Garcia, 882 F.2d 699, 703

(2d Cir. 1989); United States v. Goodwin, 854 F.2d 33, 36

(4th Cir. 1988); United States v. Hale, 784 F.2d 1465, 1468-

69 (9th Cir. 1986); People v. Glen, 282 N.E.2d 614, 617

(N.Y. 1972).

Gendron argues, however, that the warrant's

reference to "delivery by mail to and receipt by Daniel

Gendron" does not describe with sufficient clarity its

"triggering event," i.e., the particular time when it will

take effect. We agree with Gendron that a warrant must

clearly say when it takes effect. We also agree that a

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30

warrant that says it takes effect upon the occurrence of a

future event runs a greater risk of ambiguity than a warrant

that refers only to a specific day, month, and year (as do

ordinary search warrants). That is why courts have required

that the conditions upon which anticipatory warrants become

effective be "explicit, clear, and narrowly drawn."

Ricciardelli, 998 F.2d at 12 (quoting Garcia, 882 F.2d at

703-04). That said, however, we do not find any fatal flaw

in the warrant's description.

First, the law's requirement with respect to

specificity of time must be one of reasonable specificity.

Glen, 282 N.E.2d at 619 (warrant should require search to be

"reasonably contemporaneous" with arrival of contraband); 2

LaFave, supra, 3.7(c), at 99 & n.103 (citing Glen). One

can understand how a specificity requirement in respect to

time, like those in respect to "place to be searched" or

"things to be seized," U.S. Const. amend. IV, might limit

the discretion of law enforcement officers to decide when

and where and what to search, thereby avoiding the "hated

general writs of assistance of pre-Revolutionary times,"

Glen, 282 N.E.2d at 617, and assuring the existence of

"probable cause." 2 LaFave, supra, 3.7(c), at 99; id.

4.5, at 207; id. 4.6(a), at 236. But we know of no

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31

justification for a stricter standard in respect to

specificity of time than in respect to the other two

(constitutionally referenced) search parameters.

Ricciardelli, while stating that the contraband must be on a

"sure and irreversible course" to the place to be searched,

998 F.2d at 13, did not purport to set forth any special new

rule requiring more specificity where time, rather than,

say, place, is at issue. To the contrary, Ricciardelli says

that a warrant's restrictions in respect to time and place

should be "similar." Id. at 12.

Second, the law tells us that we are to read

descriptions in warrants (and in their supporting

documents), not "hypertechnical[ly]," but in a "commonsense"

fashion. United States v. Ventresca, 380 U.S. 102, 109

(1965); see also, e.g., United States v. Bianco, 998 F.2d

1112, 1116-17 (2d Cir. 1993); In re Grand Jury Subpoenas,

926 F.2d 847, 855 (9th Cir. 1991); United States v. Antone,

753 F.2d 1301, 1307 (5th Cir. 1985); United States v.

Charest, 602 F.2d 1015, 1017 (1st Cir. 1979). Read in a

commonsense fashion, the warrant's words seem specific and

clear. Gendron takes the word "receipt," however, from the

phrase "delivery by mail to and receipt by Daniel Gendron,"

and argues that it is fatally ambiguous because it might

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32

mean "receipt" anywhere, say, downtown or at the Post

Office. But, as we have pointed out, see supra pp. 5-6,

context helps to provide a word's meaning. The context

includes, at least, the rest of the warrant, which describes

Gendron's house, makes clear that the object of the search

is a video that will arrive at that house by mail, and

mentions "delivery by mail" to that house. Common sense

suggests that the words "receipt by Daniel Gendron" also

refer to receipt at that house, and not to receipt downtown

or at the Post Office, or (to use our own farfetched

example) in Okinawa.

We recognize that it is logically possible to read

the word "receipt" as if it referred to receipt somewhere

other than at Gendron's house. But that logical fact does

not make the word any less specific. The logical fact that

the world undoubtedly contains people named "Daniel Gendron"

other than the defendant here does not mean that the

warrant's triggering event, "delivery by mail to and receipt

by Daniel Gendron," is ambiguous because it does not specify

that the "Daniel Gendron" to whom it refers is the one

residing at the address to be searched. Despite the logical

possibility that the post office might accidentally deliver

the tape to some other Daniel Gendron, thus apparently

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33

fulfilling the literal terms of the warrant, the warrant is

adequately specific as to the person to receive the tape.

Specificity does not lie in writing words that deny all

unintended logical possibilities. Rather, it lies in a

combination of language and context, which together permit

the communication of clear, simple direction. Any effort to

negate all unintended logical possibilities through the

written word alone would produce linguistic complication and

confusion to the point where a warrant, in practice, would

fail to give the clear direction that is its very point.

That is why we must avoid reading a warrant's language

"hypertechnically." See Ventresca, 380 U.S. at 109.

Were it not for Ricciardelli, we would end the

discussion here. We must concede, however, that

Ricciardelli found unlawfully ambiguous a warrant with

virtually identical language, namely, language that

triggered the warrant upon

delivery by mail to and receipt by
Steven Ricciardelli of the . . . package
containing the videotape.

998 F.2d at 9. We find a significant difference, however,

in the factual context in which the warrant was issued. The

Ricciardelli panel referred to what it considered a critical

fact:

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34

the (apparently significant) chance that
the package would not be delivered to
Ricciardelli's home at all -- a
possibility that [the postal inspectors]
undeniably had envisioned.

Id. at 17. The opinion also makes clear that the "delivery

by mail" was by special delivery with a "return receipt,"

and that the postal inspectors had "contingency plans" in

the event that Ricciardelli received the package somewhere

other than his home. Id. at 9, 17 & n.9. (As it happened,

the "letter carrier tried to deliver the package" but

Ricciardelli was not home, so "the postman left a notice"

that he could "collect the item at the post office," and

Ricciardelli, in fact, did pick up the package at the post

office, not at his home. Id. at 9-10.)

In light of these background facts, one can

understand why the panel might have thought the word

"receipt," in context, was ambiguous as to where the receipt

might take place. After all, even the highly specific

language in this case describing the item to be seized,

namely "VHS videocassette labeled PTL (1)," could be thought

ambiguous if the background of this case had revealed a

serious possibility of two such items (imagine that Gendron

had worked for a firm called "PTL Realty Co." and had taken

home a series of demonstration videos). This is simply to

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35

say that background facts can sometimes turn hypothetical

possibilities, such as receipt in Okinawa or delivery to the

wrong Daniel Gendron, into practical possibilities that, in

context, might mean that one reading a warrant in a

"commonsense" fashion would nonetheless find significant

ambiguity.

Here, however, no background fact created

significant ambiguity. On the contrary, the postal

inspector's affidavit specified that the parcel "will be

placed for routine delivery" to Gendron "through the U.S.

Postal Service, Rehoboth, MA"; that after the parcel "is

delivered by mail and taken into the residence," there will

be "probable cause to believe" that evidence of criminal

conduct will be "located" in the house; and that

surveillance will commence from the time
the parcel is placed for delivery [at
the Rehoboth Post Office] and continue
until the parcel has been delivered to
105 Winthrop St., Rehoboth, MA,

with probable cause to search arising only "after the parcel

has entered the premises" (emphasis added). Moreover, at

trial, the postal inspector testified that

if Mr. Gendron was in Florida, we aren't
entitled to search his house or his
parents' house. Once it was delivered
into the house, then the search warrant

became effective.

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36

He added that the house was under surveillance because

it was important to us that if that
piece didn't get delivered, you don't
execute the search warrant.

Tr. at 115-16 (emphasis added). Consequently, unlike

Ricciardelli, nothing in the record here suggests a

background in which the warrant's words, adequately specific

in the context of the warrant, could, as a practical matter,

convey a different meaning.

For these reasons, we distinguish Ricciardelli and

find that it does not control the outcome here. To make

certain that our reading of the case is correct, however, we

have circulated a draft of this opinion to the entire court.

The concurring judge in Ricciardelli, 998 F.2d at 17

(Torruella, J., concurring) believes that his views there

would require a holding in Gendron's favor here. But, a

majority of the court agrees with our reading of

Ricciardelli which distinguishes that case from this one.

See, e.g., United States v. Rivera, 994 F.2d 942, 950-51

(1st Cir. 1993). We therefore do not accept Gendron's

Fourth Amendment claim.

IV

Other Arguments

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37

Gendron makes three further arguments, none of

which requires extended discussion.

1. Jury Instruction. Gendron argues that the

trial court should have specifically instructed the jury

that it must find he knew the person depicted on the tape

was under the age of 18. Gendron did not ask for this

charge, nor did he object to the instruction the judge gave,

which required the jury to find that he "knew the character

and nature of the material." Nonetheless, he says that the

judge's "error" was "plain." Fed. R. Crim. P. 52(b); see

generally Arrieta-Agressot v. United States, 3 F.3d 525, 528

(1st Cir. 1993). In context, however, we believe the charge

the judge gave made the point that Gendron now makes. See

Estelle v. McGuire, 112 S.Ct. 475, 482 & n.4 (1991) (in

evaluating a jury charge, court should ask "'whether there

is a reasonable likelihood that the jury has applied the

challenged instruction in a way' that violates the

Constitution," in light of "the context of the instructions

as a whole and the trial record") (quoting Boyde v.

California, 494 U.S. 370, 380 (1990)). The jury was fully

aware that the issue was child pornography. The remainder

of the charge referred frequently to children. (Indeed, the

film depicted a nine year old child.) Thus, in all

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38

likelihood, it understood the words "character and nature"

to encompass age as well as explicit sexual acts. Since

Gendron asked for no more and we can find no significant

likelihood of prejudice, there is no plain error. Arrieta-

Agressot, 3 F.3d at 528.

2. Closing Statement. Gendron points to two

statements in the prosecutor's closing argument that, he

says, are factually erroneous and significantly prejudicial.

In one instance, the prosecutor described the item that

Gendron had ordered from the private mail order catalogue

(sometime before 1985) as follows:

I think the title of it was Nancy.
Nancy is described as 13, and her
friends from No. 6, and No. 6 is
prepubescence. Two pretty prepubescents
are taught how to become geishas. This
10 year old, Nancy, and her friends, a
10 year old having sex with a 12 year
old a delicate blond at 12, having sex
with her playmate, 7, hide and seek,
combat, rock. What is his interest in
this, ladies and gentlemen? Children.
Female children.

In fact, the record contains the relevant catalogue
descriptions, which read as follows:

E-2 NANCY: 13, and her friends from #6

THROB. An impish 10 year-old, a
delicate blonde of 12, and a fetching 10
with her playmate of 7 hide-and-seek,
tumble, and romp.

J-6 KIMONO I: Two pretty pubescents are

taught how to become geishas. From full

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39

costume and make-up to nudity. Some
censoring.

Gendron's argument centers on the absence of the phrase

"having sex" in the actual descriptions.

In the other instance, the prosecutor described

the pornographic tape that the government sent Gendron as

containing

explicit depictions of a 9 to 11 year
old girl being raped, being sexually
abused, by teenage boys and an adult
male.

In fact, the tape does not contain depictions of forcible

rape (although, as the government points out, its depictions

of a child engaging in sex amount to "statutory rape").

We agree with Gendron that the prosecutor's

statements were wrong and that she should not have made

them. We cannot agree, however, that they entitle Gendron

to a new trial. That is because Gendron did not object to

the statements at the time. Had he done so, we are certain

that the district court would have ordered a correction, and

a correction would have cured any harm by pointing out the

facts. In the absence of an objection, however, we will

normally not order a new trial unless there is a

"substantial chance that absent the error the jury would

have acquitted," or, for some other reason, we fear a

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40

"miscarriage of justice." United States v. Young, 470 U.S.

1, 15 (1985); Arrieta-Agressot, 3 F.3d at 528. We see no

such miscarriage, nor any significant likelihood of

acquittal, here.

The evidence in this case was strong, perhaps

overwhelming. The jury saw portions of the tape, which

portrays a nine year old girl engaging in sexually explicit

activities with teenage and adult men. Gendron says nothing

to suggest that the tape leaves any doubt about the unlawful

nature of its contents. Thus, in this particular case, we

do not think the single use of the word "rape," forceful as

it is, could have had any significant prejudicial impact on

the jury beyond the impact of the tape itself. The question

of the videotape descriptions, because of their relevance to

the "predisposition" element of Gendron's entrapment

defense, is a little closer. But, as we have described,

supra pp. 24-26, the evidence of predisposition was very

strong. We do not believe the misdescription of the

original mail order would likely have had any practical

effect on the jury's "no entrapment" finding, particularly

because the correct description was admitted into evidence

and available to the jury. In light of the strength of the

government's case ("an important factor in considering the

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41

likely effect of borderline rhetoric," United States v.

Mejia-Lozano, 829 F.2d 268, 274 (1st Cir. 1987)), whether we

consider the two misstatements separately or together, the

"error" they reflect is not "plain."

3. Other Erotica. Gendron argues that the court

erred in allowing, as evidence of "predisposition," various

"child erotic" (but not illegal) items seized at his home.

He does not seriously argue, however, that the items were

not relevant. See Jacobson, 112 S. Ct. at 1542 (stating

that similar material "by itself" was not sufficient to show

predisposition). Rather, he says its usefulness was

outweighed by its tendency to prejudice the jury. Fed. R.

Evid. 403. The balancing at issue, however, is for the

district court, not this court. United States v. Williams,

985 F.2d 634, 637 (1st Cir. 1993). The court might

reasonably have concluded, in light of the nature of the

basic evidence in the case (the videotape itself), that the

nature of the additional child-erotic material made no

significant prejudicial difference. We find no abuse of

discretion in this determination.

Gendron's additional arguments are without merit.

For the above reasons, the judgment of the

district court is

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42

Affirmed.

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43

POLLAK, District Judge (concurring). I concur in

the judgment of the court and in the court's carefully

wrought and illuminating opinion. The opinion addresses,

comprehensively and in painstaking detail, all of the

substantial questions presented. I would add only a few

words.

First. As the court's opinion makes clear,

constitutional difficulties of serious dimension would

attend the child-pornography statute if, in prosecutions for

knowing receipt of a "visual depiction" of "a minor engaged

in sexually explicit conduct," 18 U.S.C. 2252(a)(2), the

phrase "knowingly receives" were not construed as requiring

the government to establish, beyond a reasonable doubt, that

the "visual depiction" was one which the defendant knew to

involve, not just pornography, but child pornography. These

potential constitutional difficulties are obviated by the

court's persuasive demonstration of "congressional awareness

of the important constitutional differences between adult

and child pornography," with the result that, as the court

concludes, the proper reading of what Congress wrote is

"that the statute's word 'knowingly' applies to age as well

as conduct."

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44

In the case at bar, appellant Gendron contends

that the pertinent aspect of the charge given by the trial

court -- namely that the government was required to prove

that Gendron "knew the character and nature of the material"

-- was deficient in that it did not say expressly that the

government had to have proved that Gendron knew that one of

the actors depicted in the videotape was a minor. But, as

the court notes, Gendron did not request such an

instruction. Moreover, as the court shows, it is highly

unlikely that the jury could have failed to understand that

the central focus of the charge was that Gendron was eager

to acquire, and through the government's good offices

ultimately did acquire, a videotape depicting child

pornography. That is to say, in the case at bar the fact

that the trial court did not give the more particularized

charge that appellant did not request cannot realistically

be supposed to have affected the jury's deliberations in a

fashion detrimental to appellant. In future trials under

this statute, defendants will presumably request, and trial

courts will surely give, a more particularized statement of

what "knowingly" comprehends.

Second. The fact that the methods pursued by

government agents to offer Gendron a tempting opportunity to

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45

commit a crime were not only successful but have been found

by this court (correctly, in my view) not to have been

unlawful -- i.e., not to have crossed the line into the

forbidden realm of entrapment -- does not, in my judgment,

signify that those methods of enforcing this sort of statute

are something to be proud of.

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46

APPENDIX

Chronology of events in the Gendron case:

November, 1984: Government agents discover

Gendron's name on the mailing list of Milton Midge, a

suspected child pornography distributor. Midge's records

indicate that Gendron had ordered a videotape entitled

"Nancy," whose description reads: "NANCY: 13, and her

friends from #6 THROB. An impish 10 year-old, a delicate

blonde of 12, and a fetching 10 with her playmate of 7 hide-

and-seek, tumble, and romp."

Spring, 1986: Post office initiates an operation

involving the fictitious "Far Eastern Trading Company" and

sends a flier to Gendron (and others) asking those

interested in information about Far Eastern's "youthful

material" to return a coupon with the customer's name,

address, and a signed affirmation that the customer is not a

law enforcement officer interested in "entrapping Far

Eastern Trading Company, its agents or customers."

October 12, 1986: Gendron fills out the coupon

and returns it to Far Eastern. In reply, Far Eastern sends

Gendron a catalogue of materials available for order. Each

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47

item's description clearly indicates that it depicts

sexually explicit activities involving minors.

December 29, 1986: Gendron sends a handwritten

letter to Far Eastern ordering two videotapes. The text of

the letter is:

FROM 12-29-86
Mr. Daniel A. Gendron
[address]

Hi Peter:
I'm very happy to know you and very happy to
know that I have finally found the kind of
educational material I've been dreaming of
possessing for quite some time. I'm sorry to say
I have never had any delightful experiences of
which I find in your catalogue.
I was getting very excited just reading your
material. So excited that I have decided to order
two of your titles in VHS format, LOLITA'S SEX
LESSON 119.95 AND CHILDREN SEX ORGY 129.95 A TOTAL
OF 249.90 PLUS COD CHARGES.
I question why I could only pick two titles.
Also the LOVELY TEENS TITLES had no prices listed.
Do you have any specials on buying in larger
quantities of VHS tapes. I would also like to
know more about whether you have color tapes with
sound and how many minutes long are they. Thank
you.
/s/ Daniel Gendron

The government did not fill the order.

April, 1988: Gendron's name is found on the

mailinglist of N.M.P.C., a pornography distributor in Miami.

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48

October, 1989: A new government sham company,

"Artistes Internationale," sends a flier to Gendron (and

others from the N.M.P.C. mailing list) indicating that it

carried "extremely hard to obtain erotica," but not

specifically mentioning child pornography. The flier asked

those interested in more information to reply by letter.

October 16, 1989: Gendron sends a letter to

Artistes requesting information about child pornography.

The text of the letter is:

Daniel A. Gendron 10/16/89
[address]

Gentlemen
I am a customer of N.M.P.C. 6883 Bird Rd. #
102 Miami, Florida 33155 who has stated that they
have contracted part of you [sic] services that
they can handle in the U.S.A. Well like many
others like me I am very interested in the other
part of your services that are very diffcult [sic]
to obtain in my country.
I am becoming very board [sic] with adult
pornograpy [sic] and have always been interested
in owning something different if you know what I
mean. I am single 41 years of age with low income
as a janitor. I like very young girls only and
color videos. Can you help me. Thank you

/s/ Daniel Gendron

In reply, Artistes sends Gendron a catalogue. Each item's

description clearly indicates that it portrays minors in

sexually explicit activities.

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49

December 18, 1989: Gendron submits an order to

Artistes for four child-pornographic videotapes, along with

a notation reading "Please send more order forms and

materials," and a Christmas card. The order was not filled.

March 17, 1990: Gendron places an order with a

third sham company, "Can American," for two videotapes whose

descriptions clearly indicate their child-pornographic

content.

May 4, 1990: Gendron writes a letter to Can

American complaining about the delay in filling his order.

The text of the letter is:

Gentlemen:
Have you forgotten my order of March 17th.
It is now May 4, 1990. I sent you a good check
for 149.90 to pay for one tape PTL(1) and one mag
LVM(2).
Sufficient time for a check to clear is two
weeks. It has been 7 weeks. If you cannot
deliver as promised then cancel my order and
return my check or if you have already cashed it
send me a refund. Please don't force me to take
other action to get my money back. Don't worry, I
am not connected in any way with law enforcement.
This is the first time I have ever sought to
obtain this type of educational materials [sic].
I wanted it for my small library of video
collections. Please Hurry.
/s/ Dan Gendron

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May 16, 1990: Law enforcement officers obtain an

anticipatory search warrant from U.S. Magistrate Joyce

London Alexander, which authorizes a search of Gendron's

house after the Can American tape is delivered to him.

May 18, 1990: The post office delivers the tape

to Gendron. Shortly thereafter, law enforcement officers

execute the search warrant and search Gendron's house,

seizing the Can American tape and various related items.

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