The Supreme Court/The Supreme Court.iso/pc/ascii/1993/93_723/93_723.zo

Text File | 1994-11-29 | 23.9 KB | 478 lines

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports.  Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D.C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
--------
No. 93-723
--------
UNITED STATES, PETITIONER v. X-CITEMENT
VIDEO, INC., et al.
on writ of certiorari to the united states court
of appeals for the ninth circuit
[November 29, 1994]

  Chief Justice Rehnquist delivered the opinion of the
Court.
  The Protection of Children Against Sexual Exploitation
Act of 1977, as amended, prohibits the interstate
transportation, shipping, receipt, distribution or repro-
duction of visual depictions of minors engaged in
sexually explicit conduct.  18 U. S. C. 2252.  The Court
of Appeals for the Ninth Circuit reversed the conviction
of respondents for violation of this Act.  It held that the
Act did not require that the defendant know that one of
the performers was a minor, and that it was therefore
facially unconstitutional.  We conclude that the Act is
properly read to include such a requirement.
  Rubin Gottesman owned and operated X-Citement
Video, Inc.  Undercover police posed as pornography
retailers and targeted X-Citement Video for investiga-
tion.  During the course of the sting operation, the
media exposed Traci Lords for her roles in pornographic
films while under the age of 18.  Police Officer Steven
Takeshita expressed an interest in obtaining Traci Lords
tapes.  Gottesman complied, selling Takeshita 49
videotapes featuring Lords before her 18th birthday.
Two months later, Gottesman shipped eight tapes of the
underage Traci Lords to Takeshita in Hawaii.
  These two transactions formed the basis for a federal
indictment under the child pornography statute.  The
indictment charged respondents with one count each of
violating 18 U. S. C. 2252(a)(1) and (a)(2), along with
one count of conspiracy to do the same under 18
U. S. C. 371.  Evidence at trial suggested that
Gottesman had full awareness of Lords' underage
performances.  United States v. Gottesman, No. CR
88-295KN, Findings of Fact - 7 (CD Cal., Sept. 20,
1989), App. to Pet. for Cert. A-39 (-Defendants knew
that Traci Lords was underage when she made the films
defendant's [sic] transported or shipped in interstate
commerce-).  The District Court convicted respondents of
all three counts.  On appeal, Gottesman argued inter
alia that the Act was facially unconstitutional because
it lacked a necessary scienter requirement and was
unconstitutional as applied because the tapes at issue
were not child pornography.  The Ninth Circuit re-
manded to the District Court for reconsideration in light
of United States v. Thomas, 893 F. 2d 1066 (CA9), cert.
denied, 498 U. S. 826 (1990).  In that case, the Ninth
Circuit had held 2252 did not contain a scienter
requirement, but had not reached the constitutional
questions.  On remand, the District Court refused to set
aside the judgment of conviction.
  On appeal for the second time, Gottesman reiterated
his constitutional arguments.  This time, the court
reached the merits of his claims and, by a divided vote,
found 2252 facially unconstitutional.  The court first
held that 18 U. S. C. 2256 met constitutional standards
in setting the age of minority at age 18, substituting
lascivious for lewd, and prohibiting actual or simulated
bestiality and sadistic or masochistic abuse.  982 F. 2d
1285, 1288-1289 (CA9 1992).  It then discussed 2252,
noting it was bound by its conclusion in Thomas to
construe the Act as lacking a scienter requirement for
the age of minority.  The court concluded that case law
from this Court required that the defendant must have
knowledge at least of the nature and character of the
materials.  982 F. 2d, at 1290, citing Smith v. Califor-
nia, 361 U. S. 147 (1959); New York v. Ferber, 458 U. S.
747 (1982); and Hamling v. United States, 418 U. S. 87
(1974).  The court extended these cases to hold that the
First Amendment requires that the defendant possess
knowledge of the particular fact that one performer had
not reached the age of majority at the time the visual
depiction was produced.  982 F. 2d at 1291.  Because
the court found the statute did not require such a
showing, it reversed respondents' convictions.  We
granted certiorari, 510 U. S. - (1994), and now reverse.
  Title 18 U. S. C. 2252 (1988 ed. and Supp. V)
provides, in relevant part:
-(a)  Any person who-
      -(1)  knowingly transports or ships in interstate or
      foreign commerce by any means including by com-
      puter or mails, any visual depiction, 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;
      -(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 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) of
this section.

The critical determination which we must make is
whether the term -knowingly- in subsections (1) and (2)
modifies the phrase -the use of a minor- in subsections
(1)(A) and (2)(A).  The most natural grammatical
reading, adopted by the Ninth Circuit, suggests that the
term -knowingly- modifies only the surrounding verbs:
transports, ships, receives, distributes, or reproduces.
Under this construction, the word -knowingly- would not
modify the elements of the minority of the performers,
or the sexually explicit nature of the material, because
they are set forth in independent clauses separated by
interruptive punctuation.  But we do not think this is
the end of the matter, both because of anomalies which
result from this construction, and because of the respec-
tive presumptions that some form of scienter is to be
implied in a criminal statute even if not expressed, and
that a statute is to be construed where fairly possible so
as to avoid substantial constitutional questions.
  If the term -knowingly- applies only to the relevant
verbs in 2252 - transporting, shipping, receiving,
distributing and reproducing - we would have to
conclude that Congress wished to distinguish between
someone who knowingly transported a particular package
of film whose contents were unknown to him, and
someone who unknowingly transported that package.  It
would seem odd, to say the least, that Congress distin-
guished between someone who inadvertently dropped an
item into the mail without realizing it, and someone who
consciously placed the same item in the mail, but was
nonetheless unconcerned about whether the person had
any knowledge of the prohibited contents of the package.
  Some applications of respondents' position would
produce results that were not merely odd, but positively
absurd.  If we were to conclude that -knowingly- only
modifies the relevant verbs in 2252, we would sweep
within the ambit of the statute actors who had no idea
that they were even dealing with sexually explicit
material.  For instance, a retail druggist who returns an
uninspected roll of developed film to a customer -know-
ingly distributes- a visual depiction and would be
criminally liable if it were later discovered that the
visual depiction contained images of children engaged in
sexually explicit conduct.  Or, a new resident of an
apartment might receive mail for the prior resident and
store the mail unopened.  If the prior tenant had
requested delivery of materials covered by 2252, his
residential successor could be prosecuted for -knowing
receipt- of such materials.  Similarly, a Federal Express
courier who delivers a box in which the shipper has
declared the contents to be -film- -knowingly transports-
such film.  We do not assume that Congress, in passing
laws, intended such results.  Public Citizen v. Depart-
ment of Justice, 491 U. S. 440, 453-455 (1989); United
States v. Turkette, 452 U. S. 576, 580 (1981).
  Our reluctance to simply follow the most grammatical
reading of the statute is heightened by our cases
interpreting criminal statutes to include broadly applica-
ble scienter requirements, even where the statute by its
terms does not contain them.  The landmark opinion in
Morissette v. United States, 342 U. S. 246 (1952),
discussed the common law history of mens rea as applied
to the elements of the federal embezzlement statute.
That statute read: -Whoever embezzles, steals, purloins,
or knowingly converts to his use or the use of another,
or without authority, sells, conveys or disposes of any
record, voucher, money, or thing of value of the United
States . . . [s]hall be fined.-  18 U. S. C. 641, cited in
Morissette, 342 U. S., at 248, n. 2.  Perhaps even more
obviously than in the statute presently before us, the
word -knowingly- in its isolated position suggested that
it only attached to the verb -converts,- and required only
that the defendant intentionally assume dominion over
the property.  But the Court used the background
presumption of evil intent to conclude that the term
-knowingly- also required that the defendant have
knowledge of the facts that made the taking a conver-
sion - i.e., that the property belonged to the United
States.  Id., at 271.  See also United States v. United
States Gypsum Co., 438 U. S. 422, 438 (1978) (-[F]ar
more than the simple omission of the appropriate phrase
from the statutory definition is necessary to justify
dispensing with an intent requirement-).
  Liparota v. United States, 471 U. S. 419 (1985), posed
a challenge to a federal statute prohibiting certain
actions with respect to food stamps.  The statute's use
of -knowingly- could be read only to modify -uses, trans-
fers, acquires, alters, or possesses- or it could be read
also to modify -in any manner not authorized by [the
statute].-  Noting that neither interpretation posed
constitutional problems, id., at 424, n. 6, the Court held
the scienter requirement applied to both elements by
invoking the background principle set forth in Morissette.
In addition, the Court was concerned with the broader
reading which would -criminalize a broad range of
apparently innocent conduct.-  471 U. S., at 426.
Imposing criminal liability on an unwitting food stamp
recipient who purchased groceries at a store that
inflated its prices to such purchasers struck the Court
as beyond the intended reach of the statute.
  The same analysis drove the recent conclusion in
Staples v. United States, 511 U. S. - (1994), that to be
criminally liable a defendant must know that his weapon
possessed automatic firing capability so as to make it a
machine gun as defined by the National Firearms Act.
Congress had not expressly imposed any mens rea
requirement in the provision criminalizing the possession
of a firearm in the absence of proper registration.  26
U. S. C. 5861(d).  The Court first rejected the argument
that the statute described a public welfare offense,
traditionally excepted from the background principle
favoring scienter.  Morissette, supra, at 255.  The Court
then expressed concern with a statutory reading that
would criminalize behavior that a defendant believed fell
within -a long tradition of widespread lawful gun
ownership by private individuals.-  Staples, 511 U. S., at
- (slip op., at 10).  The Court also emphasized the
harsh penalties attaching to violations of the statute as
a -significant consideration in determining whether the
statute should be construed as dispensing with mens
rea.-  Id., at - (slip op., at 16).
  Applying these principles, we think the Ninth Circuit's
plain language reading of 2252 is not so plain.  First,
2252 is not a public welfare offense.  Persons do not
harbor settled expectations that the contents of maga-
zines and film are generally subject to stringent public
regulation.  In fact, First Amendment constraints
presuppose the opposite view.  Rather, the statute is
more akin to the common law offenses against the
-state, person, property, or public morals,- Morissette,
supra, at 255, that presume a scienter requirement in
the absence of express contrary intent.  Second,
Staples' concern with harsh penalties looms equally large
respecting 2252: violations are punishable by up to 10
years in prison as well as substantial fines and forfei-
ture.  18 U. S. C. 2252(b), 2253, 2254.  See also
Morissette, supra, at 260.
  Morissette, reinforced by Staples, instructs that the
presumption in favor of a scienter requirement should
apply to each of the statutory elements which
criminalize otherwise innocent conduct.  Staples held
that the features of a gun as technically described by
the firearm registration act was such an element.  Its
holding rested upon -the nature of the particular device
or substance Congress has subjected to regulation and
the expectations that individuals may legitimately have
in dealing with the regulated items.-  Staples, supra, at
- (slip op., at 20).  Age of minority in 2252 indisput-
ably possesses the same status as an elemental fact
because non-obscene, sexually explicit materials involving
persons over the age of 17 are protected by the First
Amendment.  Alexander v. United States, 509 U. S. -
(1993) (slip op., at 4-5); Sable Communications of
California, Inc. v. Federal Communications Commission,
492 U. S. 115, 126 (1989); FW/PBS, Inc. v. Dallas, 493
U. S. 215, 224 (1990); Smith v. California, 361 U. S., at
152.  In the light of these decisions, one would reason-
ably expect to be free from regulation when trafficking
in sexually explicit, though not obscene, materials
involving adults.  Therefore, the age of the performers
is the crucial element separating legal innocence from
wrongful conduct.
  The legislative history of the statute evolved over a
period of years, and perhaps for that reason speaks
somewhat indistinctly to the question whether -knowing-
ly- in the statute modifies the elements of (1)(A) and
(2)(A)-that the visual depiction involves the use of a
minor engaging in sexually explicit conduct-or merely
the verbs -transport or ship- in (1) and -receive or
distribute . . . [or] reproduce- in (2).  In 1959 we held
in Smith v. California, supra, that a California statute
which dispensed with any mens rea requirement as to
the contents of an obscene book would violate the First
Amendment.  Id., at 154.  When Congress began dealing
with child pornography in 1977, the content of the
legislative debates suggest that it was aware of this
decision.  See, e.g., 123 Cong. Rec. 30935 (1977) (-It is
intended that they have knowledge of the type of
material . . . proscribed by this bill. The legislative
history should be clear on that so as to remove any
chance it will lead into constitutional problems-).  Even
if that were not the case, we do not impute to Congress
an intent to pass legislation that is inconsistent with the
Constitution as construed by this Court.  Yates v. United
States, 354 U. S. 298, 319 (1957) (-In [construing the
statute] we should not assume that Congress chose to
disregard a constitutional danger zone so clearly
marked-).  When first passed, 2252 punished one who
-knowingly transports or ships in interstate or foreign
commerce or mails, for the purpose of sale or distribu-
tion for sale, any obscene visual or print medium- if it
involved the use of a minor engaged in sexually explicit
conduct.  Pub. L. 95-225, 92 Stat. 7 (emphasis added).
Assuming awareness of Smith, at a minimum, -know-
ingly- was intended to modify -obscene- in the 1978
version.
  In 1984, Congress amended the statute to its current
form, broadening its application to those sexually explicit
materials that, while not obscene as defined by Miller v.
California, 413 U. S. 15 (1973), could be restricted
without violating the First Amendment as explained by
New York v. Ferber, 458 U. S. 747 (1982).  When
Congress eliminated the adjective -obscene,- all of the
elements defining the character and content of the
materials at issue were relegated to subsections (1)(a)
and (2)(a).  In this effort to expand the child pornogra-
phy statute to its full constitutional limits, Congress
nowhere expressed an intent to eliminate the mens rea
requirement that had previously attached to the charac-
ter and content of the material through the word
obscene.
  The committee reports and legislative debate speak
more opaquely as to the desire of Congress for a scienter
requirement with respect to the age of minority.  An
early form of the proposed legislation, S. 2011, was
rejected principally because it failed to distinguish
between obscene and non-obscene materials.  S. Rep. No.
95-438, p. 12 (1977).  In evaluating the proposal, the
Justice Department offered its thoughts:
      -[T]he word 'knowingly' in the second line of
section 2251 is unnecessary and should be strick-
en. . . . Unless 'knowingly' is deleted here, the bill
might be subject to an interpretation requiring the
Government to prove the defendant's knowledge of
everything that follows 'knowingly', including the age
of the child.  We assume it is 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. . . .
      -On the other hand, the use of the word
'knowingly' in subsection 2252(a)(1) is appropriate to
make it clear that the bill does not apply to common
carriers or other innocent transporters who have no
knowledge of the nature or character of the material
they are transporting.  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.-
Id., at 28-29 (emphasis added).

Respondents point to this language as an unambiguous
revelation that Congress omitted a scienter requirement.
But the bill eventually reported by the Senate Judiciary
Committee adopted some, but not all of the
Department's suggestions; most notably, it restricted the
prohibition in 2251 to obscene materials.  Id., at 2.
The Committee did not make any clarification with
respect to scienter as to the age of minority.  In fact,
the version reported by the committee eliminated 2252
altogether.  Ibid.  At that juncture, Senator Roth intro-
duced an amendment which would be another precursor
of 2252.  In one paragraph, the amendment forbade
any person to -knowingly transport [or] ship . . . [any]
visual medium depicting a minor engaged in sexually
explicit conduct.-  123 Cong. Rec. 33047 (1977).  In an
exchange during debate, Senator Percy inquired:
-Would this not mean that the distributor or seller
must have either first, actual knowledge that the
materials do contain child pornographic depictions
or, second, circumstances must be such that he
should have had such actual knowledge, and that
mere inadvertence or negligence would not alone be
enough to render his actions unlawful?-  Id., at
33050.

Senator Roth replied:
-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 market-
ing of child pornography . . . are subject to prosecu-
tion . . . .-  Ibid.

  The parallel House bill did not contain a comparable
provision to 2252 of the Senate bill, and limited 2251
prosecutions to obscene materials.  The Conference
Committee adopted the substance of the Roth Amend-
ment in large part, but followed the House version by
restricting the proscribed depictions to obscene ones.
The new bill did restructure the 2252 provision some-
what, setting off the age of minority requirement in a
separate sub-clause.  S. Conf. Rep. No. 95-601, p. 2
(1977).  Most importantly, the new bill retained the
adverb -knowingly- in 2252 while simultaneously
deleting the word -knowingly- from 2251(a).  The
Conference Committee explained the deletion in 2251(a)
as reflecting an -intent that it is not a necessary
element of a prosecution that the defendant knew the
actual age of the child.-  Id., at 5.  Respondents point
to the appearance of knowingly in 2251(c) and argue
that 2252 ought to be read like 2251.  But this
argument depends on the conclusion that 2252(c) does
not include a knowing requirement, a premise that
respondents fail to support.  Respondents offer in
support of their premise only the legislative history
discussing an intent to exclude a scienter requirement
from 2251(a).  Because 2251(a) and 2251(c) were
passed at different times and contain different wording,
the intent to exclude scienter from 2251(a) does not
imply an intent to exclude scienter from 2251(c).
  The legislative history can be summarized by saying
that it persuasively indicates that Congress intended
that the term -knowingly- apply to the requirement that
the depiction be of sexually explicit conduct; it is a good
deal less clear from the Committee Reports and floor
debates that Congress intended that the requirement
extend also to the age of the performers.  But, turning
once again to the statute itself, if the term -knowingly-
applies to the sexually explicit conduct depicted, it is
emancipated from merely modifying the verbs in subsec-
tions (1) and (2).  And as a matter of grammar it is
difficult to conclude that the word -knowingly- modifies
one of the elements in (1)(A) and (2)(A), but not the
other.
  A final canon of statutory construction supports the
reading that the term -knowingly- applies to both
elements.  Cases such as Ferber, 458 U. S., at 765 (-As
with obscenity laws, criminal responsibility may not be
imposed without some element of scienter on the part of
the defendant-); Smith v. California, 361 U. S. 147
(1959); Hamling v. United States, 418 U. S. 87 (1974);
and Osborne v. Ohio, 495 U. S. 103, 115 (1990), suggest
that a statute completely bereft of a scienter require-
ment as to the age of the performers would raise serious
constitutional doubts.  It is therefore incumbent upon us
to read the statute to eliminate those doubts so long as
such a reading is not plainly contrary to the intent of
Congress.  Edward J. DeBartolo Corp. v. Florida Gulf
Coast Building & Construction Trades Council, 485 U. S.
568, 575 (1988).
  For all of the foregoing reasons, we conclude that the
term -knowingly- in 2252 extends both to the sexually
explicit nature of the material and to the age of the
performers.
  As an alternative grounds for upholding the reversal
of their convictions, respondents reiterate their constitu-
tional challenge to 18 U. S. C. 2256.  These claims
were not encompassed in the question on which this
Court granted certiorari, but a prevailing party, without
cross-petitioning, is -entitled under our precedents to
urge any grounds which would lend support to the
judgment below.-  Dayton Bd. of Ed. v. Brinkman, 433
U. S. 406, 419 (1977).  Respondents argue that section
2256 is unconstitutionally vague and overbroad because
it makes the age of majority 18, rather than 16 as did
the New York statute upheld in New York v. Ferber,
supra, and because Congress replaced the term -lewd-
with the term -lascivious- in defining illegal exhibition
of the genitals of children.  We regard these claims as
insubstantial, and reject them for the reasons stated by
the Court of Appeals in its opinion in this case.
  Respondents also argued below that their indictment
was fatally defective because it did not contain a
scienter requirement on the age of minority.  The Court
of Appeals did not reach this issue because of its
determination that 2252 was unconstitutional on its
face, and we decline to decide it here.
  The judgment of the Court of Appeals is
Reversed.