Opinion
CRIMINAL ACTION NO. 3:08CR-3-S.
June 1, 2009
MEMORANDUM OPINION AND ORDER
This matter is before the court on the second motion of the defendant, Donald Boehman, to dismiss the indictment against him (DN 72). In a 20-page memorandum concerning the constitutionality of the federal pornography statute, 18 U.S.C. § 2252, Boehman references Romeo and Juliet, FDR ("The only thing we have to fear is fear itself"), the television show Desperate Housewives, a study by Benjamin Edelman of the Harvard Business School, a book on male sexuality by Dr. Michael Bader, an interview in Playboy Magazine of Les Moonves of CBS Television, Lolita, Fanny Hill, and Lady Chatterly's Lover, to name just a few sources. However, Boehman mentions United States v. Williams, 128 S.Ct. 1830 (2008), the controlling authority on the precise legal issue, in only three pages of his brief.
The Williams case contains the most recent affirmance by the United States Supreme Court of the constitutionality of the child pornography statute. The bedrock principle of stare decisis teaches that we not ignore the highest court's resolution of the very challenges mounted here in order to embrace the rationale of Penn Teller (see, Reply brief, pp. 2-3).
Additionally, the argument that the court should dismiss the indictment on the basis that the potential penalties are "Draconian" is without merit. Boehman contends that the recommended Federal Sentencing Guidelines range for the charged crimes fails to meet the sentencing objectives of 18 U.S.C. § 3553(a). This argument is for the sentencing phase, if any, of the case.
Motion having been made and the court being otherwise sufficiently advised, IT IS HEREBY ORDERED AND ADJUDGED that the motion of the defendant, Donald Boehman, to dismiss the indictment (DN 72) is DENIED.