UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1645
UNITED STATES OF AMERICA,
Appellee,
v.
WILLIAM L. GIFFORD,
Defendant, Appellant.
ERRATA SHEET
The order of the court issued on February 24, 1994 is
corrected as follows:
1. On page 23, 2d line of runover paragraph, replace
"constitutionally adequate" with "paragraph-wide"
2. On page 23, 1st full paragraph, change the second line
to read as follows " . . . Video holding, we respectfully decline
to follow the panel's determination that the Constitution demands
that a defendant must have had actual knowledge of the minority
of at least one of the performers. We hold instead that the
appropriate constitutional requirement is one of recklessness,
that section 2252 satisfies it, and that, therefore, the
statute's scienter requirement is constitutionally adequate. The
statute's legislative history makes it pellucid . . . . "
3. On page 23, 1st full paragraph, line 11, strike
"Furthermore, the" and replace with "This".
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1645
UNITED STATES OF AMERICA,
Appellee,
v.
WILLIAM L. GIFFORD,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Cyr, Circuit Judge.
Annemarie Hassett, Federal Defender Office, on brief for
appellant.
Jeanne M. Kempthorne, Assistant United States Attorney, with
whom A. John Pappalardo, United States Attorney, was on brief,
for the United States.
February 24, 1994
SELYA, Circuit Judge. A jury convicted defendant-
SELYA, Circuit Judge.
appellant William L. Gifford on a charge of illicit receipt of
child pornography in violation of 18 U.S.C. 2252(a)(2)
(1988).1 The district court imposed an 18-month incarcerative
sentence. Gifford appeals both the conviction and the sentence.
Appellant's principal argument requires us to probe the
dimensions of the entrapment doctrine in the aftermath of
Jacobson v. United States, 112 S. Ct. 1535 (1992). When all is
said and done, we find ourselves unpersuaded either by
appellant's argument on entrapment or by his other merits-related
asseverations. Consequently, we affirm the conviction.
Appellant's sentence presents a different set of considerations.
On this scumbled record, we conclude that the course of prudence
is to vacate the sentence and remand for resentencing in light of
our recent decision in United States v. Rivera, 994 F.2d 942 (1st
Cir. 1993).
I. BACKGROUND
This appeal finds its genesis in an undercover
investigation mounted by a postal inspector, John Dunn, who,
using the alias of "Gatewood," sent a letter to appellant in
February of 1986 (after culling his name from the mailing list of
a company reputed to distribute child pornography). Gatewood
1The statute of conviction makes it a federal crime for a
person "knowingly" to receive "any visual depiction that has been
mailed . . . 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." 18
U.S.C. 2252(a)(2). Visual depictions of this genre are
commonly referred to as child pornography.
3
wrote that, while abroad, he had "developed what others might
consider forbidden interests." He claimed that his "publisher
friends" had given him "a few Stateside addresses," presumably
including appellant's, and asked if appellant had an interest in
pursuing the matter. Appellant responded promptly, specifying a
post office box as his return address. His letter stated:
"I don't know who you are, but would like to
know anyway. Please let me know who you are
(Mr. or Mrs.) and what you would like to
correspond about. Let me hear from you, as I
don't know anything about your given
address!"
Gatewood replied to this letter in June,2 writing that he had a
"very strong appreciation of a varied sexual life," a "love for
the much younger generation," and a "decent collection" of films
2The full text of Gatewood's letter follows:
Sorry for the delayed response. I still do
travel quite a bit and organization of my
personal life is not my strongest suit. I
just misplaced you for a while. I've had
several close friends over the years into
Scandinavian publishing and photography. I
thus have acquired a very decent collection
of materials that others not so inclined
might find confusing. I have a very strong
appreciation of a varied sexual life.
Spending some time on Uncle Sam in the Far
East fully developed my love for the much
younger generation.
I hope I've been properly led. I do
have a few close friends stateside with whom
I trade/loan. Not much into selling but we
could talk.
Hope to hear from you William. Let me
know what you like. Feels strange writing to
a PO Box but I'll give you the benefit of the
doubt.
4
and photographs. He remarked that he had a group of friends with
whom he exchanged such baubles. Appellant answered this missive
in early July, inquiring about "Scandinavian publishing material"
that might be available for purchase. Gatewood did not reply.3
The next contact between appellant and the postal
inspectors consisted of a single-page advertisement disseminated
by the Far Eastern Trading Co. (Fetco), a sham corporation. The
bogus solicitation criticized the government's efforts to censor
"children's pornography," indicated that Fetco had devised a
foolproof technique for shipping such materials into the country
undetected, and invited responses from interested parties.
Appellant signed and returned the printed form provided for that
purpose, enclosing a note in which he referred to a specific
publisher, COQ.4 He also requested catalogs for "this type of
material" and a listing of similarly oriented Scandinavian
publishers. Fetco then sent appellant a catalog that described a
variety of films in a crude way that left little to the
imagination and left no shred of doubt that the films
constituted visual depictions of the kind targeted by 18 U.S.C.
2252(a)(2).5 By letter postmarked January 26, 1987, appellant
3Inspector Dunn testified at trial that the government's
undercover operation generated so overwhelming a response as to
overtax its capabilities.
4According to the testimony at trial, COQ functioned as a
prominent source of child pornography in the 1980s.
5To cite two representative offerings, the catalog mentioned
"Preteen Trio," described as a "Lolita movie of real action"
featuring a girl of 9 and boys of 12 and 15 having intercourse,
and a film entitled "Children Sex Orgy."
5
ordered two items, "Dolls" and "Pissing Lolita," and requested
thatFetcoinform himwhenthemagazine"EroticYouth" wouldbeavailable.
The government neither filled appellant's order nor
cashed his check. In June of 1987, appellant bemoaned the delay
and requested immediate clarification of the status of his order.
The government temporized, sending appellant a new catalog. On
July 31, 1987, appellant forwarded a replacement order and
another check. He again requisitioned "Pissing Lolita," but in
lieu of "Dolls," he substituted two magazines, "Baby Love" and
"Lolita Sex."6 This order, too, went unrequited.
In the spring of 1988 the government initiated another
contact. It sent appellant a complimentary copy of "Tender
Moments," a newsletter published by postal inspectors under the
6All three items purported to contain child pornography. To
illustrate the unambiguous nature of the solicitation, we quote,
albeit reluctantly, from the catalog. It supplied the following
blurb for "Pissing Lolita":
This is an absolute sensation! A film which
shows you the ultimate pleasure children and
adults have in the act of pissing over each
other. They try mostly to hit the little
cunts. Look at the two Lolitas of nine and
ten enjoying it. And see these girls
pissing!
The catalog described "Baby Love" as:
Youngest of the young. Young darling girl 2
1/2 years old learns masturbation from her
mother. Great shots of wide open lips.
The catalog described "Lolita Sex" as:
More pissing and masturbation from the
producers of the Lolita series of magazines.
Girls 8 years up to 15 years in hard core
action. Exciting intercourse and cum shots.
6
pseudonym of "the American Sensuality Society." The Society
purported to be a club whose members, for a fee, could place
advertisements and notices in the newsletter. In July, appellant
completed a membership form, sent a check, and wrote a note
indicating an interest in purchasing copies of the "Bambina sex
series" and "Lolita-sex magazines." One month later, appellant
placed an advertisement in "Tender Moments" requesting, inter
alia, addresses of Danish bookstores offering adult material.
Using the name Christian M., and conjuring up a
fictitious association with a fictitious firm, "Chrismere
Associates," the ubiquitous Inspector Dunn responded to this note
in June of 1989, asking that appellant "[l]et me know exactly the
sort of action desired and preferred ages . . . ." When
appellant replied that his interest lay in "films or magazines of
teen or pre-teen girls or boys in the nudist or other state of
nakedness," Christian wrote back: "If you are seeking nudist or
naturist type things I cannot be much assistance as my collection
of material is what is called here ACTION that is oral and
penetrating and features preteen girls nine to eleven."
Appellant rose to the bait, acknowledging that he was "interested
in a loan of Lolita or other pre-teen magazines to my mailbox,
which is safe and private . . . ." Though communications
continued for some time, no materials were shipped.
During the tail end of these negotiations, yet another
government undercover operation surfaced. This operation, called
"Canamerican," forwarded appellant a brochure on March 1, 1990.
7
The brochure featured child pornography.7 Appellant expressed
pleasure at "hear[ing] of what you have to offer" and
communicated an interest in purchasing "copies of . . . 8 mm
films" and "teen or pre-teen magazines." On June 3, 1990,
appellant placed an order, requesting that Canamerican "[s]end
the films `Lolita Children Love' and `PreTeen Trio' for now,"
along with "photocopies of Bambina Sex 4-5."
In August, appellant inquired about the status of his
order. Having one's fondest wishes come true can sometimes prove
to be a curse. On September 22, 1990, the materials arrived at
appellant's post office box in Woburn, Massachusetts. Appellant
collected them from the box. Government agents then arrested
him. At the time of his arrest, appellant acknowledged that he
knew the package mailed by Canamerican would contain visual
depictions of under-age females engaged in sexually explicit
conduct.
The authorities later obtained a search warrant for
appellant's apartment. On executing the warrant, they found
various notes, including one that read:
wrote on 10/15
Scandinavian Connection
Copenhagen Denmark
Amsterdam Netherlands
* * *
Blondie, Bambina Sex, Lolita,
7The films offered for sale in the brochure included "Pre-
Teen Lolita Mix," which was described as featuring a 9-year-old
girl having intercourse, and other motion pictures described as
depicting girls 9-13 and boys 7-14 having sexual relations.
8
Baby Love Moppets, Incest #5,
Schoolgirls.
Trial testimony identified "Scandinavian Connection" as a well-
known purveyor of child pornography during the late 1970s and
early 1980s. It was not a government front. "Blondie,"
"Moppets," and "Incest #5" are titles of films that never
appeared in catalogs or other offering materials that the
government furnished to appellant.
II. THE ENTRAPMENT DEFENSE
Appellant's principal contention in this court, as
below, is that he was entrapped and, accordingly, that the
district court should have granted his motion for judgment of
acquittal under Fed. R. Crim. P. 29. We are not persuaded.
A. Standard of Review.
The standard of review is not controversial.
"Following a guilty verdict, a reviewing court must scrutinize
the record, eschewing credibility judgments and drawing all
reasonable inferences in favor of the verdict, to ascertain if a
rational jury could have found that the government proved each
element of the crime beyond a reasonable doubt." United States
v. Sepulveda, F.3d , (1st Cir. Dec. 20, 1993) [No. 92-
1362, slip op. at 7]. Moreover, "[t]o sustain a conviction, the
court need not conclude that only a guilty verdict appropriately
could be reached; it is enough that the finding of guilt draws
its essence from a plausible reading of the record." Id. And,
finally, our cases are consentient that the prosecution's burden
of proof may be satisfied by either direct or circumstantial
9
evidence, or by any combination thereof. See United States v.
Echeverri, 982 F.2d 675, 677 (1st Cir. 1993); United States v.
Victoria-Peguero, 920 F.2d 77, 86-87 (1st Cir. 1990), cert.
denied, 111 S. Ct. 2053 (1991). So long as the evidence, taken
as a whole, supports the judgment of conviction, it need not rule
out other hypotheses more congenial to a finding of innocence.
See Victoria-Peguero, 920 F.2d at 86-87.
Appellant's entrapment defense must be analyzed within
this framework, but with special attention to the shifting
burdens of production indigenous to entrapment. See, e.g.,
United States v. Rodriguez, 858 F.2d 809, 812-13 (1st Cir. 1988).
Our cases make clear that, as with most affirmative defenses, a
judge can instruct a jury concerning entrapment only if the
defendant has carried the "entry-level burden" of showing that
"the record, viewed most charitably to the proponent of the
instruction, furnishes an arguable basis" for an assertion of the
defense. Id. at 813; accord United States v. McKenna, 889 F.2d
1168, 1174 (1st Cir. 1989). While the necessary level of
evidence is not "so substantial to require, if uncontroverted, a
directed verdict of acquittal . . . it must be more than a mere
scintilla." United States v. Pratt, 913 F.2d 982, 988 (1st Cir.
1990) (citations omitted), cert. denied, 498 U.S. 1028 (1991).
It is only when and if a defendant successfully carries this
entry-level burden that the entrapment defense secures a foothold
in the case. Once that occurs, the government must shoulder the
burden of proving, beyond reasonable doubt, the absence of
10
entrapment. See Rodriguez, 858 F.2d at 815; United States v.
Polito, 856 F.2d 414, 416 (1st Cir. 1988).
B. Analysis.
The crux of this issue is the supportability of the
jury's finding that the government did not entrap appellant.8
Appellant's arguments on this score require us to revisit our
entrapment jurisprudence in light of the Court's opinion in
Jacobson, 112 S. Ct. 1535. Having made this pilgrimage, we
conclude that Jacobson has brought into slightly better focus,
but not supplanted, one bearing wall within the existing
structure of our entrapment jurisprudence. In the end, we find
that the court below committed no reversible error and that the
record contains ample evidence to sustain the jury's verdict.
The affirmative defense of entrapment is comprised of
two elements: "(1) government inducement of the accused to
engage in criminal conduct, and (2) the accused's lack of
predisposition to engage in such conduct." Rodriguez, 858 F.2d
at 812; accord Polito, 856 F.2d at 415-16. Jacobson does not
alter this structure, but only clarifies the second component.
It teaches that when entrapment is genuinely in issue meaning
that the defendant has met his entry-level burden, see supra Part
II(A) "the prosecution must prove beyond reasonable doubt that
the defendant was disposed to commit the criminal act prior to
8Because we choose to meet appellant's sufficiency challenge
head-on, we do not reach the government's related claim that
appellant failed to carry his entry-level burden, see Rodriguez,
858 F.2d at 812, and, therefore, forfeited the right to assert
the entrapment defense at all.
11
first being approached by government agents." Jacobson, 112 S.
Ct. at 1540. Seizing on this directive, appellant contends that
the government improperly induced him to purchase the mailed
materials and, in all events, that a reasonable jury could not
have found him, in his primeval state, to have been predisposed.
We examine these contentions separately.
1. Inducement. The first question is whether the
1. Inducement.
government's actions constituted an unlawful inducement to engage
in criminal conduct.9 We start our perlustration of this issue
with first principles. Neither mere solicitation nor the
creation of opportunities to commit an offense comprises
inducement as that term is used in entrapment jurisprudence. See
Pratt, 913 F.2d at 989; United States v. Coady, 809 F.2d 119, 122
(1st Cir. 1987). Rather, inducement refers to government conduct
that persuades a person to turn "from a righteous path to an
iniquitous one." Coady, 809 F.2d at 122. Inducement can be
found only when the government has ventured beyond a simple
offer, say, by pleading with a defendant, see, e.g., Pratt, 913
F.2d at 988; Kadis v. United States, 373 F.2d 370, 374 (1st Cir.
1967), or by using inherently coercive tactics (e.g., threats or
promises of reward), see, e.g., United States v. Stanton, 973
F.2d 608, 610 (8th Cir. 1992), or by arm-twisting based on need,
sympathy, friendship, or the like, see Sherman v. United States,
356 U.S. 369, 376 (1958); United States v. Campbell, 874 F.2d
9Jacobson has no bearing on the issue of inducement because,
in that case, the Court had no occasion to deal with inducement.
See Jacobson, 112 S. Ct. at 1540 n.2.
12
838, 843-44 (1st Cir. 1989); United States v. Kelly, 748 F.2d
691, 698 n.16 (D.C. Cir. 1984).
Under these guidelines, the evidence comfortably
supports a conclusion that the postal inspectors' actions in this
case did not constitute unlawful inducement to commit the crime.
We think that a reasonable jury easily could have found that the
government's overtures to appellant, though prolonged, amounted
to no more than open-ended solicitations, all of which, at least
implicitly, invited uninterested recipients to pay no heed. The
postal inspectors made no appeal to the "sympathy of an obviously
reluctant person." Kadis, 373 F.2d at 373. The opposite seems
true: the solicitations were unsophisticated, erratic in their
timing, and not designed to exert pressure of any sort. By like
token, the solicitations held out no promise of tempting rewards
(apart from whatever satisfaction could be derived from the
erotica itself). Just the reverse: appellant was required to
pay in advance to join the American Sensuality Society and to
obtain any material that he deigned to order.
In itself, this conclusion disposes of appellant's
sufficiency-of-the-evidence challenge, for, as a matter of law,
entrapment cannot flourish unless both elements of the defense
inducement and an absence of predisposition coincide.10
10For this reason, the government is correct in its
assertion that the jury charge was flawed. The district court
instructed the jury that "if the evidence in the case leaves you
with a reasonable doubt whether Mr. Gifford was willing to commit
the crime, apart from the persuasion of government agents, then,
you must find him not guilty." The court thus neglected to tell
the jury that, in order to acquit on the basis of entrapment, it
13
"[T]he defense fails if the jury is persuaded beyond a reasonable
doubt that either is lacking." Rodriguez, 858 F.2d at 815.
2. Lack of Predisposition. For the sake of
2. Lack of Predisposition.
completeness, we note that the evidence also supports a finding
that appellant, dating back to the beginning of 1986, did not
lack predisposition to traffick in child pornography. Jacobson
gives us guidance as to what evidence suffices to show a
predilection to violate the law at the critical time, that is, in
advance of the government's initial intervention. The Court's
opinion does not require the government to furnish direct
evidence that a defendant had been violating (or, at least,
trying to violate) the law prior to the government's
intercession. Rather, under Jacobson, ready commission of the
criminal act can itself adequately evince an individual's
predisposition. See Jacobson, 112 S. Ct. at 1541.
Of course, the fly in the ointment here is that, in a
purely temporal sense, ready commission of the criminal act did
not transpire; the postal inspectors first contacted appellant in
early 1986, yet appellant did not place the order that led to his
arrest until mid-1990. The fifty-two months that elapsed is a
considerably longer span of time than the "26 months of repeated
mailings and communications from Government agents and fictitious
organizations" that marked Jacobson's dalliance with the
also would have to discern a reasonable doubt as to
predisposition. In the circumstances at bar, however, the error,
which tilted in appellant's favor, is of no consequence. See
Cook v. Rhode Island Dep't of Mental Health, Etc., 10 F.3d 17,
23-24 (1st Cir. 1993).
14
authorities. Id. Yet, the two situations are far different from
a qualitative standpoint. And on the facts of this case, we
believe that a jury reasonably could conclude that appellant,
unlike Jacobson, was predisposed to commit the crime from the
inception. Just as "ready commission" of a crime can "amply
demonstrate[] the defendant's predisposition," id., so, too,
demonstrated readiness to commit a potential crime can suffice to
prove predisposition.
We discount the initial mailing as too cryptic to be
meaningful. Starting with Gatewood's second letter, however,
appellant's reaction to the postal inspectors' overtures
exhibited considerable enthusiasm. And when the government, by
forwarding the Fetco catalog, first presented appellant with a
concrete opportunity to purchase child pornography less than
one year after its initial contact he promptly wrote out a
check and placed an order for two items. Seven months later,
when his first order had not borne fruit, appellant placed a
second order for illicit materials. Although these orders,
through no fault of appellant's, went unfilled, a rational jury
nonetheless could have found that appellant's placement of the
orders manifested the required predisposition to commit the
crime. We do not see how the government's failure to fill these
earlier orders, thereby thwarting appellant's successful
completion of the crime, could serve to undercut the inference of
readiness that appellant's conduct conveyed.
Moreover, such an inference is strengthened here by
15
other circumstantial proof. For one thing, the jury had before
it the evidence of appellant's subsequent expressions of interest
in purchasing child pornography. For another thing, the jury had
the evidence uncovered during the search of appellant's apartment
evidence from which a rational finder of facts might conclude
that appellant dealt with a commercial distributor of child
pornography wholly independent of the federal government. For a
third thing, appellant's references over time to matters not
mentioned by the government, such as "Danish bookstores," lent
credence to the inference of predisposition. Hence, Jacobson
notwithstanding, the district court appropriately submitted the
issue of entrapment to the jury.
We think that there is also a second, more fundamental
distinction between Jacobson and the case at hand: the Jacobson
Court's core concern simply is not vellicated by the facts of
record here. In Jacobson, the Court questioned whether the
defendant's predisposition arose independently, rather than as
the product of governmental efforts. See Jacobson, 112 S. Ct. at
1541. The Court's concern derived from the fact that nearly all
the material furnished by the government purported to originate
with consumer research companies or lobbying organizations that
promoted sexual freedom and freedom of speech, and that urged
purchase of their materials, which were not clearly child
pornography, as a means of raising funds for their political
mission. See id. at 1542. Before and during the relevant time
frame, Jacobson had expressed solidarity with these political
16
goals, but he had not indicated in any way that he wished to
receive child pornography. On these facts, the Court feared that
"by waving the banner of individual rights and disparaging the
legitimacy and constitutionality of efforts to restrict the
availability of sexually explicit materials, the Government . . .
exerted substantial pressure on petitioner to obtain and read
such material as part of a fight against censorship and the
infringement of individual rights." Id.
By contrast, no such high-minded appeals characterize
the instant case. Here, unlike in Jacobson, the jury reasonably
could have found that defendant eagerly responded to each and
every solicitation in a manner indicating his immediate interest
in receiving forbidden materials. Here, unlike in Jacobson, the
government-sponsored overtures for the most part did not purport
to come from political organizations, but from private collectors
and commercial distributors.11 And, finally, here, unlike in
Jacobson, the material promoted by the mailings was easily
recognizable as containing child pornography. In short, a jury
reasonably could have concluded that this was not, as appellant
would have it, Jacobson redux. That is to say, the jury
reasonably could have thought that this was not a case in which
government agents "implant[ed] in the mind of an innocent person
11To be sure, the one-page solicitation originally sent by
Fetco did express a political opinion in the sense that it
criticized "censor[ship]" of pornography. But, unlike in
Jacobson, 112 S. Ct. at 1542, the Fetco circular did not claim
that sales proceeds would fund lobbying activities or be used for
some equally ennobling purpose.
17
the disposition to commit the alleged offense and induce[d] its
commission in order that they may prosecute." Id. at 1543
(citation omitted).12
III. OTHER CHALLENGES TO THE CONVICTION
Appellant stages two other offensives in his campaign
to overcome the jury verdict. Neither offensive gains him any
ground.
A. Outrageous Misconduct.
Appellant asserts that the prolonged series of
undercover operations mounted by the postal inspectors
constituted misconduct so fundamentally unfair as to violate the
due process clause of the Fifth Amendment. In terms, this
assertion bears a family resemblance to appellant's assault on
the failure of the judge and jury to find entrapment. It fares
no better.
Government agents run awry of the due process clause
if, and to the extent that, their investigative conduct violates
"fundamental fairness" and is "shocking to the universal sense of
12We do not believe that the Jacobson Court intended to
hamstring routine undercover operations of the kind that Gifford
encountered. The Court took pains to observe that if the
government agents had "simply offered petitioner the opportunity
to order child pornography through the mails, and petitioner . .
. had promptly availed himself of this criminal opportunity, it
is unlikely that his entrapment defense would have warranted a
jury instruction." Jacobson, 112 S. Ct. at 1541. The Court's
comment applies a fortiori in the instant case, especially since
the issue here is not whether the factual panoply warranted
submission of the entrapment defense to the jury as a theoretical
possibility, but whether, after the judge instructed the jury on
entrapment and the jury rejected the defense on the facts, its
verdict should be overturned because entrapment suffused the
scene as a matter of law.
18
justice." United States v. Russell, 411 U.S. 423, 432 (1973).
We recently stated that, in theory, "the government's active
participation in a criminal venture may be of so shocking a
nature as to violate a defendant's right to due process,
notwithstanding a defendant's predisposition to commit the
crime." United States v. Panitz, 907 F.2d 1267, 1272 (1st Cir.
1990) (citations omitted). Yet, we cautioned in virtually the
same breath that this court had never encountered a situation
where that sort of government involvement "crossed the
constitutional line." Id. The case before us does not break the
string.
We do not see a need for exegetic comment. Despite the
fact that undercover operations by their nature involve elements
of furtiveness, duplicity, and manipulation, we have never held
that such initiatives are per se unfair. To the contrary, we
think that the Executive Branch is free, within broad limits, to
set such snares for unwary criminals. See United States v.
Santana, 6 F.3d 1, 5-6 (1st Cir. 1993); United States v. Connell,
960 F.2d 191, 194, 196 (1st Cir. 1992); see also United States v.
Mitchell, 915 F.2d 521, 526 (9th Cir. 1990) (upholding reverse
sting operation in child pornography case), cert. denied, 111 S.
Ct. 1686 (1991). In this connection, it is important to
understand that the fairness of employing a particular form of
undercover operation is in part a function of the crime under
investigation. See United States v. Osborne, 935 F.2d 32, 37
(4th Cir. 1991); see also Santana, 6 F.3d at 7 (outlining
19
considerations relevant to assessing the outrageousness vel non
of an undercover officer's conduct in a "reverse sting"
operation).
We cannot say that, here, the postal inspectors lacked
a rational basis for mounting a long-running series of undercover
operations in an effort to curb unlawful trafficking in child
pornography.13 See Osborne, 935 F.2d at 37 (concluding that
"undercover operations provide a [lawful] means by which
participants in the clandestine child pornography industry can be
detected"). And, moreover, fundamental fairness is not
compromised in a child pornography case merely because the
government supplies the contraband. See, e.g., Mitchell, 915
F.2d at 526; United States v. Musslyn, 865 F.2d 945, 947 (8th
Cir. 1989), cert. denied, 114 S. Ct. 443 (1993); United States v.
Driscoll, 852 F.2d 84, 86 (3d Cir. 1988); cf. Santana, 6 F.3d at
8 (holding that DEA's actions in supplying a large amount of
heroin to suspected drug dealers did not warrant dismissal).
In this instance, the government's strategy seems
fairly calculated to combat the spread of child pornography by
putting consumers of forbidden depictions at warranted risk. The
postal inspectors' communiques do not strike us as possessing the
13In the proceedings below, the district court suggested
that due process requires that the government must always harbor
a reasonable suspicion of criminal wrongdoing before targeting an
individual for testing in the crucible of an undercover
investigation. We reject this idea. See United States v.
Espinal, 757 F.2d 423, 426 (1st Cir. 1985) (finding undercover
operation to be lawful vis-a-vis a defendant as to whom the
government had no previous suspicion of criminal activity).
20
capacity to overbear a guileless recipient's will. They were,
instead, neutral tests designed to assay a recipient's
willingness to order contraband. In the same vein, the
government's promotional literature, read as a whole, was not
unfairly deceptive; although the Fetco brochure indicated on its
face that the goods offered for sale did not contain child
pornography, it was within the jury's province to conclude that
appellant must have realized from the circular's contents that
this was an apocryphal disclaimer. Nor does the temporal span of
the government's undercover operation make it vulnerable to
appellant's attack. Although the sting ultimately stretched over
four years, appellant placed a mail order for illicit materials
within a year after first being contacted by the postal
inspectors. The government's decision to continue its
investigation of appellant under such circumstances is far
removed from outrageous conduct. See, e.g., Musslyn, 865 F.2d at
946 (upholding undercover sting operation that lasted nearly five
years); United States v. Goodwin, 854 F.2d 33, 35-36 (4th Cir.
1988) (similar; operation lasted nearly four years).
In a nutshell, nothing in this record distinguishes the
government's actions in any material respect from the numerous
sting operations that we, and other courts, have upheld in case
after case after case. See Santana, 6 F.3d at 4 (collecting
cases); United States v. Moore, 916 F.2d 1131, 1139 (6th Cir.
1990); Panitz, 907 F.2d at 1272-73 (collecting cases); United
States v. Thoma, 726 F.2d 1191, 1199 (7th Cir.), cert. denied,
21
467 U.S. 1228 (1984). There is no point in retracing footsteps
that have beaten a well-marked path. The district court did not
err in rejecting appellant's claim of outrageous governmental
misconduct.
B. Constitutionality of the Statute.
Appellant next asserts that the statute of conviction,
18 U.S.C. 2252(a)(2), quoted supra note 1, is unconstitutional
on its face. Because the issue presented poses an unadulterated
question of law, appellate review is plenary. See Liberty Mut.
Ins. Co. v. Commercial Union Ins. Co., 978 F.2d 750, 757 (1st
Cir. 1992); Stauble v. Warrob, Inc., 977 F.2d 690, 693 (1st Cir.
1992).
Appellant claims that section 2252(a) fails to pass
constitutional muster because it does not require proof that the
accused knew that the persons depicted in the described materials
were under age. This claim is premised upon the holding in
United States v. X-Citement Video, Inc., 982 F.2d 1285 (9th Cir.
1992), petition for cert. filed (Nov. 5, 1993) (No. 93-723). The
conclusion of the two-judge X-Citement Video majority rested on a
single base, having two components. First, the court decided
that the term "knowingly," as employed in section 2252(a)(2),
modifies only the word "receives," and not the phrase "visual
depiction[s] involv[ing] the use of a minor engaging in sexually
explicit conduct"; and, second, the court decided that this
syntax renders the statute constitutionally infirm because, by
failing to predicate guilt on actual knowledge of the materials'
22
contents, particularly the age(s) of the persons depicted, the
statute allows a person to be convicted without proof of the
requisite scienter. See X-Citement Video, 982 F.2d at 1289-92;
see also Osborne v. Ohio, 495 U.S. 103, 112-15 (1990) (discussing
constitutional requirement that prohibitions on child pornography
include some element of scienter); see generally New York v.
Ferber, 458 U.S. 747, 765 (1982) (explaining that child
pornography statutes must contain "some element of scienter" to
survive constitutional attack).
The X-Citement Video opinion is something of a pariah.
With regard to the first component of its holding, every other
appellate court that has read section 2252(a) has determined that
the provision imposes a scienter requirement vis-a-vis the
contents of an interdicted mailing. See, e.g., United States v.
LaChapelle, 969 F.2d 632, 638 (8th Cir. 1992); Osborne, 935 F.2d
at 34 & n.2; United States v. Duncan, 896 F.2d 271, 277-78 (7th
Cir. 1990); United States v. Marchant, 803 F.2d 174, 176-77 (5th
Cir. 1986); United States v. Garot, 801 F.2d 1241, 1246-47 (10th
Cir. 1986). Indeed, we, ourselves, albeit in a civil case,
advocated just such a construction of section 2252(a). See
Rodriguez v. Clark Color Lab., Inc., 921 F.2d 347, 349 (1st Cir.
1990).
Though these opinions predate X-Citement Video,
district courts outside the Ninth Circuit that have been asked to
follow X-Citement Video uniformly have declined to do so. See,
e.g., United States v. Edwards, F. Supp. , (N.D. Ill.
23
1993) [1993 WL 453461, at *5] (declaring that notwithstanding X-
Citement Video's contrary view, "the language of 2252 imposes a
scienter element as to the nature of the proscribed visual
depictions"); United States v. Prytz, 822 F. Supp. 311, 321
(D.S.C. 1993) (noting that, though the X-Citement Video court's
rendition "may be correct grammatically, it is not reasonable nor
consistent with principles underlying constitutional
interpretation of statutes and the courts' obligation to construe
statutes to avoid unconstitutionality if possible"); United
States v. Long, 831 F. Supp. 582, 586 (W.D. Ky. 1993); United
States v. Kempton, 826 F. Supp. 386, 388-89 (D. Kan. 1993). No
court has expressed support for the conclusion reached in X-
Citement Video.
We agree with the near-unanimous view, and with the
relevant segment of Judge Kozinski's dissent in X-Citement Video,
982 F.2d at 1296-97. In our opinion, section 2252(a)
incorporates a paragraph-wide scienter requirement. We read the
term "knowingly," as used in the statute, to modify not only
"receives" but also the entire paragraph, including age and
conduct. Cf. United States v. Marvin, 687 F.2d 1221, 1226 (8th
Cir. 1982) (interpreting "knowingly" in 7 U.S.C. 2024(b) as
modifying the entire remainder of the clause in which it
appears), cert. denied, 460 U.S. 1081 (1983).
With regard to the second component of the X-Citement
Video holding, we respectfully decline to follow the panel's
determination that the Constitution demands that a defendant must
24
have had actual knowledge of the minority of at least one of the
performers. We hold instead that the appropriate constitutional
requirement is one of recklessness, that section 2252 satisfies
it, and that, therefore, the statute's scienter requirement is
constitutionally adequate. The statute's legislative history
makes it pellucid that Congress intended to include a scienter
requirement, and did not intend strict criminal liability. See
H.R. Rep. No. 910, 99th Cong., 2d Sess. 6 (1986), reprinted in
1986 U.S.C.C.A.N. 5952, 5956 (discussing 1986 amendments to
2251, 2252, and explaining that "[t]he government must prove that
the defendant knew the character of the visual depictions as
depicting a minor engaging in sexually explicit conduct but need
not prove that the defendant actually knew the person depicted
was in fact under 18 years of age or that the depictions violated
Federal law"). This statutory architecture passes constitutional
scrutiny, for the Constitution does not require that an accused
possess actual knowledge of the performers' ages. Rather, the
scienter requirement imposed by section 2252(a) regarding the
receipt of child pornography is satisfied if the prosecution can
show reckless disregard of the obvious. See Osborne, 495 U.S. at
115 (holding that recklessness "plainly satisfies the requirement
laid down in Ferber that prohibitions on child pornography
include some element of scienter").
To sum up, our determination that section 2252(a)
survives appellant's constitutional challenge comports with the
better-reasoned cases and, at the same time, honors the
25
prudential principle that, "where an otherwise acceptable
construction of a statute would raise serious constitutional
problems, [courts should] construe the statute to avoid such
problems unless such construction is plainly contrary to the
intent of Congress." Edward J. DeBartolo Corp. v. Florida Gulf
Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988).
IV. THE SENTENCE
Appellant's final argument concerns his sentence. He
claims that the lower court erred in not essaying a downward
departure, see 18 U.S.C. 3553(b) (providing, inter alia, for
departures if the court ascertains "that there exists a[] . . .
mitigating circumstance of any kind . . . not adequately taken
into consideration by the Sentencing Commission in formulating
the guidelines that should result in a [sentence outside the
guideline range]"); see also U.S.S.G. 5K2.0, which would have
reduced his sentence below the guideline sentencing range (GSR).
The government demurs. It maintains that we lack jurisdiction to
consider this plaint, and, alternatively, that the district court
justifiably refused to depart. In the peculiar circumstances of
this case, these two propositions can be collapsed into a single
issue.
It is by now apodictic that a criminal defendant cannot
ground an appeal on the sentencing court's discretionary decision
not to depart below the GSR. See, e.g., United States v.
Tardiff, 969 F.2d 1283, 1290 (1st Cir. 1992); United States v.
Amparo, 961 F.2d 288, 292 (1st Cir.), cert. denied, 113 S. Ct.
26
224 (1992); United States v. Hilton, 946 F.2d 955, 957 (1st Cir.
1991); United States v. Romolo, 937 F.2d 20, 22 (1st Cir. 1991).
This rule, like most rules, is subject to exceptions. One such
exception applies when the sentencing court's declination to
depart results from a mistake of law. See, e.g., Amparo, 961
F.2d at 292; Hilton, 946 F.2d at 957. In other words, appellate
jurisdiction may attach if it appears that the failure to depart
stemmed from the sentencing court's mistaken impression that it
lacked the legal authority to deviate from the guideline range
or, relatedly, from the court's misapprehension of the rules
governing departures. In this instance, we think appellant's
case fits within the exception.
At sentencing, appellant moved for a downward departure
on various grounds. He claimed that he suffered from an
extraordinary mental and emotional condition within the purview
of U.S.S.G. 5H1.3 and 5K2.13; that his offense conduct
represented an isolated, aberrant act occurring against the
backdrop of an otherwise exemplary lifestyle, which brought its
commission within reach of U.S.S.G. 5K2.0 and Ch.1, Pt.A, intro.
comment. 4(d); and that he would be especially vulnerable to
abuse by other convicts if incarcerated. The district court
rejected all three bases for departure, and sentenced appellant
to eighteen months in prison (the low end of the GSR), but stayed
the execution of sentence sua sponte. On appeal, Gifford
abandons his vulnerability claim but stands fast by his other
importunings. And he urges us to find, inter alia, that the
27
district court mistakenly believed itself to be bereft of legal
authority to depart downward.
While we express no opinion concerning the ultimate
disposition of Gifford's case, a careful reading of the
sentencing transcript persuades us that, at least as to a
possible departure under section 5K2.0, appellant's argument has
merit.14 In particular, we question whether the court below
recognized the extent to which it was permitted to rely on its
"judgment about whether the given circumstances, as seen from the
district court's unique vantage point, are usual or unusual,
ordinary or not ordinary, and to what extent." United States v.
Rivera, 994 F.2d 942, 951 (1st Cir. 1993).15
Under the sentencing statute, the relevant guidelines,
and associated materials, a district judge is obligated to mete
out a sentence within the GSR unless a permissible feature takes
the case "outside the Guidelines' `heartland' and make[s] it a
special, or unusual, case." Id. at 949; see also United States
14Because we remand for resentencing based on our analysis
of section 5K2.0, we do not separately consider sections 5H1.3
and 5K2.13. We note, however, that to some extent the same
factors underpin the several departure approaches in this case.
And in all events, the district court is free, in its discretion,
to revisit sections 5H1.3 and 5K2.13.
15We reach this conclusion without in any way faulting the
district court. Our opinion in Rivera, a case that both refined
and elaborated earlier circuit precedent, did not emerge until
some two weeks after Gifford had been sentenced. We expect a
great deal from district judges, but we do not expect them to
foretell the future with complete clairvoyance. See, e.g.,
United States v. Ladd, 885 F.2d 954, 961 (1st Cir. 1989)
(acknowledging that "robes and gavels are the tools of a jurist's
trade not tea leaves or crystal balls").
28
v. Aguilar-Pena, 887 F.2d 347, 349 (1st Cir. 1989) (explaining
the "heartland" concept). As Rivera makes clear, there are only
nine "forbidden departures," that is, nine factors that are
categorically ineligible to serve as the basis for a departure.
See Rivera, 994 F.2d at 948-49 (listing race, sex, national
origin, creed, religion, socioeconomic status, lack of youthful
guidance, substance abuse, and personal financial difficulties).
While all other factors can be taken into account in structuring
the departure calculus, the architecture is complex. Those
factors specifically enumerated in the guidelines reside in one
category but we must subdivide that category into moieties:
factors that are the stuff of encouraged departures, and factors
that are discouraged, albeit not prohibited, as a basis for
departure. See id. at 949. In a second category are
"[c]ircumstances that may warrant departure from the guidelines .
. . [but which] cannot, by their very nature, be comprehensively
listed and analyzed in advance." U.S.S.G. 5K2.0, p.s. With
respect to such unforeseen circumstances, the district court is
to "decide whether to depart (and, if so, how much to depart) by
examining the `unusual' nature of these circumstances and making
a judgment about what is appropriate." Rivera, 994 F.2d at 949.
Of course, the district court did not indeed, it
could not, see supra note 15 analyze this case in terms of the
Rivera model. But the judge's comments at sentencing are
evocative of the misperception of hamstrung discretion that we
sought to correct in Rivera, 994 F.2d at 953-54. The sentencing
29
transcript makes it very clear that the judge viewed the
circumstances of the case as unusual in certain important
respects. The judge stated that, given appellant's
psychological background [and] his inability
to reason through from . . . cause to effect,
. . . he did not as a matter of fact
recognize the peculiarity of the sexual
references in the Gatewood . . .
correspondence; he did not comprehend as a
matter of fact the socially unacceptable
nature of the materials advertised in the Far
Eastern Trading Company [and] Canamerican
catalogs; he throughout believed that he was
acting within the law, and indeed he believed
from the nature of the government's sting
operation that the materials advertised were
legal for trade; and . . . he did assume that
any of the advertisers who solicited him were
operating legally through the mail.
Based on these findings, the judge concluded that appellant "was
a person entirely without mens rea" and that he was "unlike the
normal person."
To be sure, the judge, having made these findings,
eschewed a downward departure. He stated that he feared
departing because "[t]his case may be an example of the adage
that hard cases make bad law." Yet, after Rivera, that bromide
sweeps less broadly in the world of guideline sentencing. Cf.
Rivera, 994 F.2d at 949 (observing that, in the final analysis,
"the Guidelines cannot dictate how courts should sentence in . .
. special, unusual, or other-than-ordinary circumstances").
After Rivera, hard cases often make viable departure candidates.
Just as deciding whether to depart sometimes may
present a difficult judgment call for a sentencing court, the
evaluation of departure rulings frequently requires an appellate
30
court to walk a tightrope, ceding "full awareness of, and respect
for" the trial court's "superior `feel' for the case," United
States v. Diaz-Villafane, 874 F.2d 43, 50 (1st Cir.), cert.
denied, 493 U.S. 862 (1989), yet reviewing de novo, without
deference to the trial court's outlook, the question of "whether
or not the allegedly special circumstances . . . are of the
`kind' that the Guidelines, in principle, permit the sentencing
court to consider at all," Rivera, 994 F.2d at 951. In this
case, we think that the two methodologies can peacefully coexist,
for the circumstances identified by the district court might, as
a matter of law, support a downward departure. See id. at 949
(noting that a district court's determination of what sentence is
appropriate can be informed by the "`nature and circumstances of
the offense,' the `history and characteristics of the defendant,'
and the basic purposes of sentencing, namely, just punishment,
deterrence, incapacitation and rehabilitation") (citations
omitted).
In brief, we do not believe resentencing would be
pointless in this instance, for we discern the requisite
"significant possibility" that the facts, as found by the
sentencing court, would permit that court "lawfully to order a
departure." Rivera, 994 F.2d at 953. Indeed, the district judge
himself observed that "[i]f it were open to me under the
guidelines to depart, I would depart and I would impose a
sentence of . . . probation." Because Rivera makes it possible
that such a departure is legally open to the sentencing court in
31
the unusual circumstances of this case, we think the course of
prudence is to vacate the defendant's sentence and remand for
resentencing.16 Cf. United States v. Tavano, F.3d ,
n.5 (1st Cir. 1993) [No. 93-1492, slip op. at 8 n.5] (remanding
for resentencing and suggesting that, if there is "room for an
objectively reasonable division of opinion on what the judge
intended," the defendant should be given "the benefit of [the]
doubt"). In adopting this course, we intimate no opinion either
as to what appellant's sentence should be or as to whether the
district court should sentence within or beneath the GSR.
The judgment of conviction is affirmed, the defendant's
sentence is vacated, and the case is remanded for resentencing.
The district court shall afford both parties an opportunity to
supplement the sentencing record.
16We also are tugged in this direction by our recognition
that, at the original sentencing hearing, the prosecution agreed
that probation would be an appropriate disposition.
32