United States v. Burian ( 1994 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
___________________________
No. 93-1123
___________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JOHN BURIAN,
Defendant-Appellant.
___________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
____________________________________________________
(April 7, 1994)
Before GOLDBERG, DAVIS and DeMOSS, Circuit Judges.
DAVIS, Circuit Judge:
John Burian appeals his conviction under 18 U.S.C. § 2252 for
knowingly receiving in the mail visual depictions of minor children
engaged in sexually explicit conduct. His primary challenge on
appeal is the constitutionality of § 2252. Because we interpret §
2252 as including a knowledge requirement, we affirm his
conviction. Burian also contends on appeal that the district court
erred in denying his request for a reduction in his guideline
sentence for acceptance of responsibility. We also find no error
in this ruling by the trial court and also affirm his sentence.
I.
In January, 1992, postal inspectors executed a search warrant
at an adult mail order business dealing in child pornography. The
postal inspectors found that John Burian had written requesting a
catalog and had ordered six tapes (one of which contained teen and
preteen minors engaged in sexually explicit conduct). They also
discovered records showing that the tapes had been sent to Burian.
The postal inspectors used the business as an undercover
operation. They sent Burian a letter notifying him that the
business had new video tapes for sale. Burian responded in a
letter stating that he had an interest in sexually explicit
material depicting teens and preteens. As a result, the postal
inspectors sent Burian a catalog, from which he ordered ten video
tapes that were described as depicting teen and preteen activity.
When Burian went to the post office to pick up the tapes, he was
apprehended by postal inspectors.
Burian was charged in a one count information with knowingly
receiving in the mail visual depictions of minor children engaged
in sexually explicit conduct, in violation of 18 U.S.C. §
2252(a)(4)(B). Burian waived indictment and pled guilty. Burian
stipulated as true that he "knowingly received these items through
the mail and possessed them, knowing that these video tapes, which
he had ordered, contained visual depictions of minors engaged in
sexually explicit conduct."
The trial court sentenced Burian to 14 months imprisonment, a
fine in the amount of $25,000, a two-year term of supervised
release, and a mandatory special assessment of $50. Burian timely
appealed, challenging the constitutionality of § 2252.
II.
2
At Burian's sentencing hearing, he presented a recent Ninth
Circuit case holding § 2252(a)(2) unconstitutional.1 U.S. v. X-
Citement Video, 982 F.2d 1285 (9th Cir. 1992), cert. granted, 127
L.Ed.2d 536, 62 U.S.L.W. 3573 (U.S. 1994). We assume, without
deciding, that Burian preserved the issue of the constitutionality
of the statute on appeal.2
Child pornography statutes must include some element of
defendant's scienter. New York v. Ferber, 458 U.S. 747, 765, 73
L.Ed.2d 1113 (1982). A statute that outlaws the reckless
possession or receipt of child pornography "plainly satisfies the
requirement laid down in Ferber that prohibitions on child
pornography include some element of scienter." Osborne v. Ohio,
495 U.S. 103, 115, 109 L.Ed.2d 98 (1990). Burian argues, relying
on X-Citement, that 18 U.S.C. § 2252(a)(4)(B) is unconstitutional
because it does not require knowledge of the performer's minority
as an element of the crime it defines.
In X-Citement, the Ninth Circuit held that § 2252(a)(2) did
not satisfy Ferber's knowledge requirement.3 Relying on its
1
Because X-Citement was decided after Burian's guilty plea,
he did not have an opportunity to raise the constitutional
challenge until his sentencing hearing.
2
In order for a defendant to preserve an issue for appellate
review, he must raise it before the district court. U.S. v.
Villarreal, 920 F.2d 1218, 1222 (5th Cir. 1991). At his sentencing
hearing, Burian stated that he was not moving to declare the
relevant statute unconstitutional and that he wished to retain his
guilty plea. We have serious doubts that Burian preserved this
issue on appeal. Ordinarily, a guilty plea waives all objections,
even constitutional ones, unless expressly reserved.
3
Burian challenges § 2252(a)(4)(B) which states that an
offense occurs if a person:
knowingly possesses 3 or more ... video tapes, or other
matter which contain any visual depiction that has been
3
earlier decision in U.S. v. Thomas, 893 F.2d 1066 (9th Cir.), cert.
denied, 498 U.S. 826 (1990), the court stated:
In summary, then, we conclude that the First Amendment ...
mandates that a statute prohibiting the distribution, shipping
or receipt of child pornography require as an element
knowledge of the minority of at least one of the performers
who engage in or portray the specific conduct. Section 2252,
as authoritatively construed by Thomas, does not so require.
As a result, section 2252 is unconstitutional on its face ...
X-Citement, 982 F.2d at 1292. The court held that the word
"knowingly" modified only "receives" and not the rest of the
paragraph. Therefore, the statute lacked the required "knowledge"
element.
However, the X-Citement majority ignored the long-standing
rule that federal courts have a duty to interpret statutes in a
manner consistent with the Constitution, if such an interpretation
is possible. Edward J. De Bartolo Corp. v. Florida Gulf Coast
Building & Constr. Trades Council, 485 U.S. 568, 575, 99 L.Ed.2d
645 (1988); U.S. v. 37 Photographs, 402 U.S. 363, 369-370, 28
L.Ed.2d 822 (1971). As Judge Kozinski pointed out in his dissent
in X-Citement, the court was bound by constitutional narrowing to
interpret § 2252 to require some degree of knowledge of a
performer's minority as an element of the offense.
mailed ... if--(i) the producing of such visual depiction
involves the use of a minor engaging in sexually explicit
conduct; and (ii) such visual depiction is of such
conduct.
X-Citement dealt with § 2252(a)(2) which states that an offense
occurs if a person:
knowingly receives, or distributes 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 (ii) such visual depiction
is of such conduct.
4
Moreover, this circuit has already interpreted § 2252 as
containing as an element that the person receiving or possessing
the child pornography has actual knowledge of the performer's
minority or is reckless with regard to the performer's age. In
U.S. v. Marchant, 803 F.2d 174, 177 (5th Cir. 1986), this court at
least implicitly required knowledge of a performer's minority as an
essential element of the crime. The defendant argued that the
evidence was insufficient to establish that he knowingly received
child pornography. Id. at 176. This court concluded that the
evidence was ample to support the verdict that he knew what he
received was going to be child pornography. Id. at 77. See also,
U.S. v. Rubio, 834 F.2d 442 (5th Cir. 1987).
Other circuits have also interpreted § 2252 to require some
knowledge of a performer's minority. See, U.S. v. Duncan, 896 F.2d
271, 278 (7th Cir. 1990) (ample evidence to conclude that defendant
ordered and received what he knew to be child pornography); U.S. v.
Brown, 862 F.2d 1033, 1036 (3d Cir. 1988) (where defendant had
received different child pornography than requested, the statute
does not require that recipient of child pornography know precise
contents of material received, but need only know that material is
child pornography); U.S. v. Garot, 801 F.2d 1241, 1247 (10th Cir.
1986)(trial court did not abuse its discretion by admitting certain
evidence because evidence was relevant to prove the scienter
required by § 2252).
Both the First and the Third Circuits recently disagreed with
the X-Citement decision and held the statute constitutional. U.S.
v. Cochran, 1994 U.S. App. LEXIS 2455 (3d. Cir. Feb. 2, 1994); U.S.
5
v. Gifford, 1994 U.S. App. LEXIS 3175 (1st Cir. Feb. 24,
1994)(holding that the "X-Citement opinion is something of a
pariah"). Both courts ruled that the word "knowingly" modifies the
entire paragraph and imposes a scienter element as to the nature of
the visual depictions. See also, U.S. v. Prytz, 822 F. Supp. 311,
321 (D.S.C. 1993) (although Ninth Circuit reading is grammatically
correct, it is not reasonable nor consistent with courts'
obligation to avoid unconstitutionality if possible); U.S. v.
Kempton, 826 F. Supp. 386, 388-89 (D.Kan. 1993) (same).
The Ninth Circuit majority in X-Citement declined to interpret
§ 2252 in a way that prevents constitutional infirmity. We decline
to follow X-Citement and choose instead to follow our earlier
decisions and those of our sister circuits interpreting the statute
to require actual knowledge or reckless disregard of a performer's
minority. Because Burian stipulated that he knew that the tapes he
possessed depicted minors engaged in sexually explicit conduct, we
reject his challenge to the constitutionality of § 2252.
III.
Burian next argues that the district court erred by failing to
grant a two-level reduction to the offense level for acceptance of
responsibility. The probation officer recommended this reduction
in the presentence investigation report even though Burian had
submitted a statement explaining his conduct, in which he claimed
he had never been interested in child pornography and had only
ordered the tapes because he thought the company would never send
them. Burian claimed, in his statement, that he wanted to catch
the company in false advertising.
6
At the sentencing hearing, the district court ruled that
Burian's statement showed that he had not accepted responsibility.
Burian testified that his statement was an attempt to explain his
feelings and emotions, not to diminish his responsibility and that
perhaps he had made a poor choice of words. The court found that
Burian had not carried his burden of proof of clearly demonstrating
acceptance of responsibility and denied the two-level decrease in
offense level.
The standard of review for a trial court's determination of
acceptance of responsibility is more deferential than the clearly
erroneous standard. U.S. v. Pofahl, 990 F.2d 1456, 1485 (5th
Cir.); cert. denied, 126 L.Ed.2d 218 (1993). The district court
refused to accept Burian's argument at the sentencing hearing that
his earlier statement was not an attempt to deny his involvement in
knowingly ordering child pornography. Burian's attempt to minimize
or deny his involvement in the offense supports the district
court's refusal to grant a two level reduction for acceptance of
responsibility. U.S. v. Watson, 988 F.2d 544, 551 (5th Cir. 1993),
cert. denied, 126 L.Ed.2d 665 (1994). The district court did not
clearly err in refusing to decrease Burian's offense level.
AFFIRMED.
7