United States v. Anthony Petrov

JON O. NEWMAN, Circuit Judge,

dissenting in part.

I disagree with the majority’s view that the statute punishing mailing of obscene materials, 18 U.S.C. § 1461 (1982), applies to a photo processor. Until today no reported decision has so construed the statute. I do not believe that Congress intended section 1461 to criminalize the conduct of photo processors who receive film containing obscene pictures taken by members of the public, develop negatives from the film, print photographs, and mail the finished prints back to the senders. Construing the statute to cover photo processors not only distorts a carefully constructed congressional scheme to provide circumscribed restraints on those who print or reproduce certain sexually explicit materials, it also obliges all photo processors to become the censors of the nation’s millions' of photographers.

The statute is broadly worded. “Whoever” knowingly mails non-mailable matter, including obscene photos, is covered by its literal terms. Id. But though the words *833of a statute are the starting point for construction, they are not necessarily the end of the exercise. Nearly a century ago the Supreme Court confronted a statute that provided criminal penalties for importing an alien to perform “labor or service of any kind.” Act of February 26, 1885, ch. 164, 23 Stat. 332, successor statute repealed by Immigration and Nationality Act, § 403(a)(2), 66 Stat. 163, 279 (1952). The Government had sought to apply the statute to a church that had imported an alien minister. Not only did the statute literally apply, but the argument for its application to ministers was strengthened by the statute’s specific exclusion of various other occupations. Nevertheless, the Court unanimously construed the statute to be inapplicable to ministers, concluding that Congress most likely had not intended such coverage. Church of the Holy Trinity v. United States, 143 U.S. 457, 12 S.Ct. 511, 36 L.Ed. 226 (1892).

Only recently, our Court ruled that an all-inclusive term of a criminal statute should be somewhat narrowly construed to avoid results most likely not intended by Congress. See, e.g., United States v. Pacione, 738 F.2d 567 (2d Cir.1984) (“other criminal means,” as used in extortionate credit statute, 18 U.S.C. § 891(6) (1982), does not mean all other criminal means). Sometimes, of course, we have construed a criminal statute literally, see, e.g., United States v. Weisman, 624 F.2d 1118, 1123-24 (2d Cir.) (“any offense” in RICO definitional provision, 18 U.S.C. § 1961(1)(D) (1982) includes conspiracy offense), cert. denied, 449 U.S. 871, 101 S.Ct. 209, 66 L.Ed.2d 91 (1980). “There is no automatically ‘right’ way to decide” whether or not to apply the literal terms of a statute. United States v. Perdue Farms, Inc., 680 F.2d 277, 286 (2d Cir.1982) (Newman, J., concurring). We must examine the particular statute, related statutes, and the consequences of a literal interpretation.

The obscene mail statute derives from the Comstock Act, Act of June 8, 1872, R.S. § 3893, ch. 335, § 148, 17 Stat. 283 (1872). In 1872 no one was mailing film to a photo processor. The “film” of that era was a glass plate that had to be developed on the scene immediately by the photographer.1 Not until after the popularity of George Eastman’s box camera led to the development in 1895 of film that could be loaded in the light did the industry that we know as photo processing come into existence.2 No doubt the later Congresses that reenacted the more recent predecessors of section 1461 were aware that the mails were being used by photo processors, but there is no indication that Congress ever considered the application of this statute to such businesses.

More significantly, Congress has given specific consideration to the printing and reproduction of sexually explicit photographs. In 1970, Congress enacted a statute making it a crime to “print, reproduce, or manufacture” any “sexually related mail matter.” Pub.L. No. 91-375, § 6(j)(37)(A), 84 Stat. 781 (1970) (codified at 18 U.S.C. § 1737 (1982)). That statute, however, is carefully drawn in a way that does not place at risk every photo processor of a photograph later determined to be obscene. *834First, the statute defines “sexually related mail matter” as material within the scope of section 3008(a) or 3010(d) of Title 39, which cover only sexually explicit advertisements. Second, the statute punishes only those who print or reproduce such materials “intending or knowing that, such matter will be deposited for mailing or delivery by mail in violation of section 3008 or 3010 of title 39” or of regulations issued thereunder. 18 U.S.C. § 1737(a). Sections 3008 and 3010 of Title 39 prohibit the mailing of certain materials to those who have notified the postal authorities that they do not wish to receive such materials. Section 1737 of Title 18 thus imposes no obligation on a photo processor to decide whether or not a particular photograph is obscene; the statute is violated only by mailing sexually explicit material to unwilling recipients.

Congress next considered photo processors in 1978, when it enacted the Protection of Children Against Sexual Exploitation Act of 1977, Pub.L. No. 95-225, § 2(a), 92 Stat. 7, 8 (codified at 18 U.S.C. § 2251-2253 (1982)). When Congress was considering the provision of that Act prohibiting shipment of obscene material involving children, 18 U.S.C. § 2252, the Justice Department proposed an amendment to include “any individual who manufactures, reproduces or duplicates” films of child pornography, noting that such an amendment would “enable the bill to cover film processing laboratories.” S.Rep. No. 95-438, 95th Cong., 2d Sess. 28 (1977), reprinted in 1978 U.S.Code Cong. & Ad.News 40, 63. Even though the Senate drafted a new bill, S. 1585, 95th Cong., 2d Sess. (1978), “to correct a number of faults that the Justice Department had found with” the original bill, S.Rep. No. 95-438, supra, at 13, 1978 U.S.Code Cong. & Ad.News at 51, the new bill, which in substance became the enacted version, did not adopt the recommendation to include photo processors.

Congress again considered the topic of photo reproduction earlier this year when it enacted the Child Protection Act of 1984, Pub.L. No. 98-292, § 4, 98 Stat. 204. That Act amends 18 U.S.C. § 2252 to include anyone who “knowingly reproduces” child pornography for distribution in interstate commerce or through the mails. Even though the terms of the amended section 2252 are now broad enough to cover photo processors, it is far from clear that Congress intended even this statute to apply to such businesses. The House Report identifies as the object of the new language in section 2252 “the producer who pirates photos from other publications or who purchases photos for reproduction.” H.R.Rep. No. 98-536, 98th Cong., 1st Sess. 3 (1983), reprinted in 1984 U.S.Code Cong. & Ad. News 492, 494. An ordinary photo processor does neither.

The most compelling reason for not construing section 1461 to apply to photo processors arises from consideration of the consequences of such a construction. Preliminarily, it should be noted that the literal application of the statute to cover “[wjhoever” mails obscene matter would yield a demonstrably unintended result. Under a literal construction, a person would violate the statute if he received in the mail obscene photos that were incorrectly addressed and, after opening the envelope and noticing both the contents and the addressing error, mailed the items back to the sender.

More to the point, it seems most unlikely, for two reasons, that Congress intended the consequences of subjecting photo processors to the coverage of section 1461. First, such businesses are not, by virtue of the task they perform, part of a distribution network that Congress would understandably wish to prevent from using the mails. A photo finisher typically returns his finished prints to the photographer who sent the film to be developed and printed. If the photos are obscene, that photographer is, in a meaningful way, using the mails to send obscene matter; by contrast, the photo processor is using the mails only to return private property to its owner. Of course, the photo processor who prints a large quantity of photos from a negative or an original print facilitates widespread distribution by others, but even activity of that sort is on the borderline of criminal *835conduct. Compare United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 (1940) (supplier of sugar arid yeast to illegal liquor distillers not guilty of bootlegging conspiracy), with Direct Sales Co. v. United States, 319 U.S. 703, 63 S.Ct. 1265, 87 L.Ed. 1674 (1943) (supplier of large quantity of morphine sulphate to physician guilty of narcotics conspiracy). In any event, under the Government’s reading of the statute, it applies to the photo processor who mails a single print of an obscene photograph back to the photographer. The statute has no quantitative minimum, and the indictment against Petrov does not specify that the obscene photos were printed in quantity. In fact, the evidence on some of the counts consisted of a single photograph.

Second, and more significantly, application of section 1461 to a photo processor obliges him to make a judgment whether every photograph he prints is obscene. It is one thing to impose that burden, with its consequent risk of criminal conviction, upon the person who initiates the mailing of an obscene photo. See, e.g., Spillman v. United States, 413 F.2d 527 (9th Cir.), cert. denied, 396 U.S. 930, 90 S.Ct. 265, 24 L.Ed.2d 228 (1969); United States v. Peller, 170 F.2d 1006 (2d Cir.1948).3 It is quite another to impose it upon a photo processor who simply returns to a photographer film that is mailed for developing and printing. In United States v. Dellapia, 433 F.2d 1252 (2d Cir.1970), we construed section 1461 to be inapplicable to a person who mailed obscene films upon request to his pen pal. Even if the holding in Dellapia has been put in doubt by subsequent Supreme Court decisions, United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973); United States v. Twelve 200-Ft. Reels, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973); United States v. Reidel, 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813 (1971), it remains as an important caution that when government seeks to regulate the private transmission of obscene materials, it “enter[sj upon a constitutional danger area.” 433 F.2d at 1257. Very likely Congress has the power to punish those who print and mail obscene photos back to their customers. But the concerns expressed in Dellapia provide helpful guidance in determining whether Congress has done so in enacting section 1461.

Application of the statute to a photo processor not only puts him at risk every time he prints and returns a photo containing nudity, it also implicates the constitutional rights of those who send film for developing. If the statute applies to photo processors, it is inevitable that they will err on the side of caution and decline to return some photos that display innocent nudity but are not obscene. The photo processor thus becomes the censor of the nation’s photographers. Worse yet, his actions become a particularly obnoxious form of prior restraint: He condemns the photo before anyone, including the photographer or a neutral magistrate, has had an opportunity to see the finished print. A broad construction of section 1461 thus authorizes by indirection a result very similar to the ex parte condemnation that the Supreme Court has prohibited, A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964); Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961). I recognize that every application of section 1461 to a person who distributes someone else’s obscene material by mail creates the risk that the distributor will withhold material that he incorrectly concludes is obscene. That risk is tolerable because the originator of the material has numerous outlets of distribution available, and the adverse decision of one distributor does not bar the material from all public scrutiny. But when a photo processor mistakenly concludes that a photo is obscene, he effectively condemns the *836picture, unless the photographer is willing to travel a considerable distance to retrieve his negative.

The Government’s construction also leads to an anomalous result. Since section 1461 is violated only by a person who has knowledge of the contents of the materials he mails, Hamling v. United States, 418 U.S. 87, 119-24, 94 S.Ct. 2887, 2908-2911, 41 L.Ed.2d 590 (1974), the photo processor who fully automates his plant, eliminating all opportunity for employees to see the finished prints, will very likely avoid prosecution, while the statute will apply to establishments using more conventional equipment.

The risks of construing section 1461 to apply to photo processors were graphically illustrated by one episode in this case and the Government’s reaction to it. In preparation for trial, defense counsel sent some of the Government’s exhibits to the Eastman Kodak Company to have duplicate prints made. At oral argument, the Government was asked whether Kodak violated section 1461 by mailing the duplicated prints to defense counsel. We were enthusiastically assured that Kodak had violated the statute.

I am questioning only the construction of section 1461, not its constitutionality.4 If Congress wishes to punish those who print and reproduce obscene photographs and return them to photographers, it may well have constitutional authority to do so. But such regulations should be undertaken with care, as Congress itself has recognized in enacting the limited provisions of 18 U.S.C. § 1737. If a bill amending section 1461 were proposed in Congress explicitly to extend its coverage to photo processors, I have little doubt that the affected industry would be heard from and that, if any such amendment were enacted, it would be carefully written to minimize the problems I have identified. Until Congress makes clear that it wishes to criminalize the action of every photo processor who mails an obscene photograph back to the photographer who sent the film, I would not apply section 1461 to accomplish such a dangerous result.

In this case, a majority of the panel agrees with the Government’s application of section 1461 to photo processors. I am therefore obliged to accept that conclusion, much as I disagree with it, and face the other issues in this case, especially since the other two members of the panel are divided on some of those issues, and the case must be adjudicated. Having expressed my dissenting views on section 1461,1 agree with Judge Pratt’s disposition of all the other issues in the case except with respect to counts 7 and 9. As to those two counts, I agree with Judge Lumbard that United States v. Klaw, 350 F.2d 155 (2d Cir.1965), is properly understood to require expert testimony that material appeals to the prurient interest of a deviant group only when the material portrays conduct not generally understood to be sexual.

. The "standard method of making photographic negatives” in the 1870’s was the wet collodion process. C. Mees, From Dry Plates to Ektachrome Film 8 (1961).

The worker of the wet collodion process had to make his own plates at the time when he wanted to take a picture. He would clean a piece of glass and coat it with collodion in which chemicals were dissolved and then put the plate in a bath of nitrate of silver, which formed silver iodide in the collodion film and made it sensitive to light. The plate had to be exposed in the camera while wet, and the developer had to be poured over it immediately after exposure. It was then fixed and dried. To carry out these operations, a landscape photographer had to carry with him a folding tent which he could set up in the open air.

Id. at 8.

. The introduction in 1888 of the first Kodak camera made photography accessible to the general public. The consumer purchased the camera for $25, took one hundred pictures, and returned the entire unit to the Kodak factory for processing. The product was marketed under the slogan, "You press the button, we do the rest.” C. Mees, supra, at 15-16.

. Even as to photographers mailing obscene film to a photo processor, the reach of section 1461 had been administratively curtailed by the Department of Justice’s policy concerning prosecution for mailing private correspondence. See Redmond v. United States, 384 U.S. 264, 86 S.Ct. 1415, 16 L.Ed.2d 521 (1966) (conviction vacated at request of Solicitor General, who advised Court that prosecution was contrary to written policy of Justice Department).

. Petrov does not explicitly argue that section 1461 should be construed not to apply to photo processors, but his argument that the statute may not constitutionally be applied to photo processors obliges us to consider the preliminary issue of the statute’s construction.