Opinion
01 Cr. 1114 (RPP)
October 11, 2002
James B. Comey, United States Attorney for the Southern District of New York, New York, NY, By: Deirdre A. McEnvoy
Jason L. Solotaroff, One Liberty Plaza New York, NY, For Defendant.
OPINION AND ORDER
I. Introduction
Pursuant to Federal Rule of Criminal Procedure 32(e), defendant, Brian Reilly ("Reilly"), has moved to withdraw his guilty plea entered on July 17, 2002, to a single count of knowingly receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)(a). The indictment in this case was filed before the Supreme Court's decision in Ashcroft v. Free Speech Coalition, 122 S.Ct. 1389 (2002) ("Free Speech"). In addition, the defendant allocuted to his guilt before the Court had read the Free Speech decision.
Upon reading the Free Speech decision, the Court ordered a conference with counsel and inquired whether, in view of Free Speech, it had conducted a proper allocution of the scienter requirement. Specifically, the Court inquired whether the allocution to § 2252A required an admission that the defendant knew that the visual depictions contained images of actual minors engaged in sexually explicit conduct, as opposed to simulated or virtual child pornography. Both parties have responded by letter and the defendant has moved to withdraw his plea of guilty based on Ashcroft v. Free Speech Coalition, 122 S.Ct. 1389 (2002) and United States v. X-Citement Video, 513 U.S. 64 (1994). For the reasons set forth below, Reilly's motion is granted.
Government letter dated August 30, 2002 ("Gov. Letter") and Defendant's letter, by counsel, dated August 15, 2002 ("Def. Letter") and reply letter dated August 30, 2002 ("Def. Reply Letter").
II. Background
Reilly's Plea Allocution
On July 17, 2002, Reilly entered a guilty plea to a single count of receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)(a). During his plea allocution, Reilly stated that he had discussed the charge in the indictment fully with his lawyer, that his lawyer had explained the charge to him, and that he was fully satisfied with the representation and the advice that his lawyer had given him in this case. (Plea Transcript "Pl. Tr." 4-5.)
This Court read the one-count indictment to Reilly and stated that the Government would have to prove the following elements beyond a reasonable doubt if this case were to go to trial: (1) that between the dates of January 2001, up to and including March 2001, the defendant received child pornography that had been shipped and transported in interstate commerce by computer; (2) that the defendant knowingly received said child pornography; (3) that the defendant received the pornography in the Southern District of New York, and (4) that the defendant knew what he was doing was against the law. (Pl. Tr. 9-10.)
The following questions and answers occurred thereafter (Pl. Tr. 10):
The Court: How do you plead to the charge, guilty or not guilty?
The Defendant: Guilty.
The Court: Did you receive child pornography on your computer between January 2001 and March 2001?
The Defendant: Yes, I did.
The Court: Did that child pornography involve several images of child pornography?
The Defendant: At least one of them, yes.
The Court: Did you knowingly receive that child pornography?
The Defendant: I did.
The Court later inquired (Pl. Tr. 11):
The Court: Did you know what you were doing was against the law?
The Defendant: Yes.
III. Discussion
Withdrawal of Guilty Plea Under Rule 32(e)
"Motions to withdraw guilty pleas are governed by Federal Rule of Criminal Procedure 32(e)." United States v. Fernandez-Antonia, 278 F.3d 150, 1555 (2d Cir. 2002) (quoting United States v. Torres, 129 F.3d 710, 715 (2d Cir. 1997). Federal Rule of Criminal Procedure 32(e) states in relevant part: "[i]f a motion to withdraw a plea of guilty or nolo contendere is made before sentence is imposed, the court may permit the plea to be withdrawn if the defendant shows any fair and just reason." A defendant, therefore, does not enjoy an unfettered right to withdraw his guilty plea. Fernandez-Antonia, 278 F.3d at 155 (citingUnited States v. Williams, 23 F.3d 629, 634 (2d Cir. 1994). "The defendant bears the burden of showing that there are valid grounds for relief." United States v. Maher, 108 F.3d 1513, 1529 (2d Cir. 1997). "In determining whether a `fair and just reason' exists for withdrawal of the plea, a district court should consider: `(1) the time lapse between the plea and the motion; and (2) whether the government would be prejudiced by a withdrawal of the plea.'" Fernandez-Antonia, 278 F.3d at 155 (internal citations omitted).
With regard to the timing factor, Reilly announced his desire to withdraw his guilty plea on August 15, 2002, approximately one month after his plea of July 17, 2002, and approximately two weeks after the conference held on July 31, 2002. This length of time is neither short nor long. As such, this factor is neutral and does not militate for nor against granting Reilly's motion. With regard to the issue of prejudice, the Government has not raised this concern in their papers, so prejudice is not a factor to militate against granting Reilly's motion. The threshold issue, therefore, is whether Reilly has made a prima facie showing of sufficient grounds to justify withdrawal of the plea.
When accepting a plea of guilty, the Court is required to question the defendant to confirm that he possesses the requisite understanding of the charge. United States v. Blackwell, 199 F.3d 623, 626 (2d Cir. 1999) (citing McCarthy v. United States, 394 U.S. 459 (1969). In making this inquiry, Rule 11 does not require the "`court to follow any particular formula . . .'" Id. (quoting United States v. Andrades, 169 F.3d 131, 135 (2d Cir. 1999). However, the Court is required to satisfy itself regarding the factual basis for the plea. Andrades, 169 F.3d at 136. The Court need not evaluate evidence but must, "`assure itself simply that the conduct to which the defendant admits is in fact an offense under the statutory provision under which he is pleading guilty.'" Id. (quotingMaher, 108 F.3d at 1524).
The law has long held that an attorney's representation that he explained the charge to the defendant is not enough to demonstrate that the defendant understands the charge. Blackwell, 199 F.3d at 626 (citing McCarthy, 394 U.S. at 466-67). Moreover, in his letter of August 30, 2002, defense counsel stated that he "did not focus on and did not discuss" with Reilly the need for the prosecution to prove that he knew the computer images were of real children. Defense counsel stated that Reilly allocuted on the "mistaken premise that the government could prove its case simply by introducing evidence of his receipt of the material and proving that there [were] actual children depicted in the material without proving [Reilly's] knowledge of the depiction of actual children." (Def. Reply Letter at 2.)
In this case, Reilly allocuted that his attorney explained the charge. (Pl. Tr. at 4.)
In Reilly's plea, the Court did not supply any definition of "child pornography." The Court did not inquire whether or not Reilly knew that the images were real. Moreover, the Court did not ascertain whether or not Reilly knew that said images depicted actual minors. In addition, the Government's only proffer during the allocution was that, if the case were to go to trial, the Government would prove beyond a reasonable doubt that the images had traveled through the interstate commerce. (Pl. Tr. 11). The Government did not proffer during the plea hearing that it would prove that the defendant knew that the visual depictions were of actual minors.
The Government stated in their letter, dated August 30, 2002, that "there is compelling evidence that at least some of the images are real" and that the Government "provided Reilly with information regarding the manner in which it would prove these images depicted real children." (Gov. Letter fn. 3.) However, such proof is still insufficient evidence that the defendant possessed the requisite scienter to commit the crime charged in the indictment.
Under these circumstances, there is a "fair and just" reason to permit the withdrawal of his guilty plea. Reading Free Speech and X-citement together, discussed in greater detail below, requires a defendant in an 18 U.S.C. § 2252A prosecution to allocute that he knew the visual depictions were of actual minors. In view of defense counsel's letter, dated August 30, 2002, stating that he did not advise Reilly of this element and since Reilly did not allocute to this essential element of the charge in the indictment, the Court is satisfied that Reilly did not fully understand the crime to which he pled. The motion to vacate is granted.
Free Speech Decision
In Ashcroft v. Free Speech Coalition, 122 S.Ct. 1389 (2002), the Supreme Court, in a facial challenge to the Child Pornography Prevention Act of 1996 ("CPPA"), held that 18 U.S.C. § 2251, et. seq., cannot be read as a prohibition of obscenity under the test of Miller v. California, 413 U.S. 15 (1973), because the definitions of child pornography in the CPPA lacked the required link between its prohibitions and the affront to the community standards prohibited by the Miller definition of obscenity. Free Speech, 122 S.Ct. at 1401. The Court recognized that in addition to prohibiting obscenity, legislation could prohibit child pornography not meeting the obscenity standard under its holding in New York v. Ferber, 458 U.S. 747 (1982), because "[w]here the images are themselves the product of child sexual abuse, . . . the State had an interest in stamping it out without regard to any judgment about its content." Free Speech, 122 S.Ct. at 1401 (citing Ferber, 458 U.S. at 761). It stated, however, that "`[t]he distribution of descriptions or other depictions of sexual conduct, not otherwise obscene, which do not involve live performance or photographic or other visual reproduction of live performances [of children], retains First Amendment Protection.'"Id. at 1402 (quoting Ferber, U.S. 458 at 764-765.) Accordingly, the Court rejected the definitions of "virtual child pornography" under 18 U.S.C. § 2256(8)(B) and (D) as not sufficiently related to the exploitation of real children. Id. at 1405-1406.
Under the Miller standard, "the government must prove that the work, taken as a whole appeals to the prurient interest, is patently offensive in light of community standards, and lacks serious literary, artistic, political, or scientific value." Free Speech, 122 S.Ct. at 1399 (quoting Miller, 413 U.S. at 24).
In Free Speech, the Supreme Court found that the virtual child pornography definitions, contained in 18 U.S.C. § 2256(8)(B) and § 2256(8)(D), "recorded no crimes and created no victims" and were thus not "intrinsically related" to the sexual abuse of children. Id. at 1402. Specifically, the Court held that visual depictions which "appear to be of a minor engaged in sexually explicit conduct" and visual depictions that are "advertised, promoted, presented, describing or distributed in such a manner that conveys the impression that the material is or contains a depiction of a minor engaging in sexually explicit conduct," were overbroad definitions in that they encompassed depictions which were protected free speech as they did not meet the Miller test for obscenity. Id. at 1405-6.
18 U.S.C. § 2256(8)(a) or § 2256(8)(c), which may potentially encompass the material that was in Reilly's possession, are still valid under Free Speech.
The Court rejected the Government's argument in Free Speech, that virtual child pornography was properly prohibited because "virtual child pornography whets the appetites of pedophiles and encourages them to engage in illegal conduct." Id. at 1403. The Court stated that the prospect of crime, by itself, does not justify laws suppressing protected speech. Id.
The Free Speech Court also rejected the Government's argument that under Ferber, virtual pornography is properly prohibited by the CPPA, regardless of whether it depicts works of value, because it is virtually indistinguishable from child pornography which is properly banned. Id. at 1401-1402. The Free Speech Court pointed out that the Ferber decision, banning child pornography, "was based on how it was made and not on what it communicated." Id. at 1402.
The Government's argument that the prosecution of child pornography would be difficult since virtual images are often indistinguishable from real images, was also rejected by the Court as turning the "First Amendment upside down." Id. at 1404. The Court stated, "[p]rotected speech does not become unprotected merely because it resembles the latter. The Constitution requires the reverse." Id.
The Free Speech opinion reiterated the general principal that the First Amendment bars the Government from dictating what we "see or read or speak or hear." Id. at 1399. It recognized, that "freedom of speech has its limits; it does not embrace defamation, incitement, obscenity and pornography produced with real children." Id. at 1399 (internal citation omitted). The Court, however, declined to add the category of "virtual child pornography" to the list of unprotected speech. Id. Free Speech reaffirmed that where the speech is neither obscene nor the product of sexual abuse of children it does not fall outside the protection of the First Amendment. Id. at 1402 (citing Ferber, 458 U.S. at 764-765).
The Free Speech Court pointed out that the CPPA was not directed at speech that is obscene, as Congress has proscribed those materials through a separate statute, 18 U.S.C. § 1460-1466. Free Speech, 122 S.Ct. at 1396.
Scienter Requirement
In United States v. X-Citement Video, 513 U.S. 64 (1994), the Court laid out the scienter requirement in the Protection of Children Against Sexual Exploitation Act 18 U.S.C. § 2252. Id. at 78. In X-citement, the Court followed the reasoning of Morissette v. United States, 342 U.S. 246 (1952), Staples v. United States, 511 U.S. 600 (1994) and Liparota v. United States, 471 U.S. 419 (1985). X-citement, 513 U.S. at 70-73. TheX-citement Court held that the term "knowingly" in § 2252(a)(1) and(2) modifies the phrase "the use of a minor" and is properly read to include a scienter requirement for the age of minority. Id. at 78.
The Supreme Court pointed out that in the criminalization of pornography production under 18 U.S.C. § 2251, the perpetrator confronts the underage victim personally and may be reasonably required to ascertain the victim's age. Id. at 72 fn.2. It pointed out, however, that the opportunity for reasonable mistake as to age increases significantly once the victim is reduced to a visual depiction, unavailable for questioning by the distributor or the receiver. Id. The Court found that § 2252 was akin to common law offenses that presume a scienter requirement in the absence of express contrary intent. Id.
Secondly, 18 U.S.C. § 2252A, the crime with which Reilly is charged, is contained in the same Title 18 chapter, is of the same grammatical structuring, carries the same harsh penalties, and uses the same definitional section as 18 U.S.C. § 2252. As such, the same penalties and anomalies which concerned the X-citement Court would result if this Court were to construe "knowingly" in § 2252A as modifying only the surrounding verbs and not the minority of the performers and the sexually explicit nature of the material which the X-citement Court held applicable to § 2252. Id. at 68-69.
Further, Chief Justice Rehnquist, who wrote for the Court inX-citement stated in his dissent in Free Speech, "[i]n X-citement Video,supra, we faced a provision of the Protection of Children Against Sexual Exploitation Act of 1977, the precursor of the CPPA, which lent itself much less than the present statute to attributing a "knowingly" requirement to the contents of the possessed visual depictions, we held that such a requirement nonetheless applied, so that the government would have to prove that a person charged with possessing child pornography actually knew that the materials contained depictions of real minors engaged in sexually explicit conduct." Free Speech, 122 S.Ct. at 1413-1414 (citing X-citement, 513 U.S. at 77-78).
The Government argues in its letter discussing the knowledge requirement, that the Free Speech decision, does not alter the scienter requirement that was made "abundantly clear in X-citement Video" (Gov. Letter at 7) and articulates the Supreme Court's ruling in X-citement, as stating, "the term `knowingly' in 18 U.S.C. § 2252 `extends to the sexually explicit nature of the material and to the age of the performers.'" (Gov. Letter at ¶ quoting X-citement, 513 U.S. at 78.) The Government also applies the term "knowingly" under § 2252 to § 2252A, its analogous statute. (Gov. Letter at 7.)
The Government also claims however that, "it is well established that to fulfill the scienter requirement imposed by § 2252 and 2252A, the government need only show the defendant's `reckless disregard' of the obvious." (Gov. Letter at 6.) It then argues that "[t]o establish recklessness under § § 2252 and its analogous statutes, the government need not prove that the defendant knew the actual age of the minors or the precise contents of the materials." (Id.) The Government concludes that under the current state of the law, "the scienter requirement under § 2252 established by Ferber is satisfied if the defendant knows that the items depict minors and have [sic] a general knowledge that the material is sexually oriented." (Id.)
In reaching this conclusion regarding the scienter requirement of a defendant under 18 U.S.C. § 2252A, the government relies on a line of cases, all of which are inopposite to the case at bar. The Government's cases fall into two categories: (1) cases that do not address the holding in X-citement, since they were decided before the Supreme Court'sX-citement decision on November 24, 1994, and (2) cases that rely on other statutes, including statutes that involve a defendant's direct interaction with a child. The Government does not point to a single case which supports a scienter requirement under § 2252A that does not require "knowing" that the performers are real children.
Thus, in light of X-citement and consistent with the narrow class of images which the Free Speech Court ruled are prohibited by the CPPA, a defendant in possession of materials containing visual depictions of real minors engaging in sexually explicit conduct must know that real minors were the subject of the visual depictions.
Conclusion
The allocution of Reilly was insufficient in that he did not acknowledge that he knew that the images he received were of actual children. Accordingly, his plea of guilty is vacated.