Reply To: The Sex Offender Registry: A Gorilla on the Basketball Court

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Yes, a “Playboy” or “Hustler” would be the grounds for any registered citizen on state or federal supervision to be found in violation of the terms of their supervision. However, that rule is so very vague “sexually explicit” or “sexually stimulating” can involve anything from child pornography to hard-core adult pornography to books containing pictures of masterpiece paintings that include nudity. I would say that for those registrants with charges against minors, an old Sears & Roebuck or J.C. Penny’s catalog could be considered a violation of that rule since those old catalogs had pages of little boys and girls modeling underwear. Also, “National Geographic” has published multiple issues with pictures of fully naked prepubescent children showing EVERYTHING.

In fact, in some jurisdictions those terms “sexually explicit” or “sexually stimulating have been overturned because they are so vague and open to a wide range of interpretation.

Exerpt from United States v. Lawrence Antelope (9th Circuit)

III. THE PROHIBITION ON “ANY PORNOGRAPHIC MATERIALS”

 Antelope also challenges as unconstitutionally vague the provision of his supervised release prohibiting him from possessing “any pornographic, sexually oriented or sexually stimulating materials.”   In United States v. Guagliardo, 278 F.3d 868 (9th Cir.2002), we held impermissibly vague a similar supervised release term.   Guagliardo was prohibited from possessing “ ‘any pornography,’ including legal adult pornography.”  Id. at 872.   Because “a probationer cannot reasonably understand what is encompassed by a blanket prohibition on ‘pornography,’ ” we remanded for clarification.  Id. We do the same here.   The condition imposed on Antelope is indistinguishable from the one imposed on Guagliardo.   Here, instead of “any pornography,” we have “any pornographic ․ materials.”

The government contends that “sexually oriented or sexually stimulating” should be read to define “pornographic.”   We decline to adopt this grammatically unnatural reading.   The release term explicitly lists three types of materials that Antelope may not possess:  “any pornographic, sexually oriented or sexually stimulating materials.”   Because the condition imposed on Antelope suffers from the same defect as the one struck down in Guagliardo, we vacate and remand for clarification.

United States of America, Plaintiff-appellee, v. Thomas Luke Guagliardo, Defendant-appellant, 278 F.3d 868 (9th Cir. 2002)
Annotate this Case
US Court of Appeals for the Ninth Circuit – 278 F.3d 868 (9th Cir. 2002)
Argued and Submitted October 17, 2001
Filed January 17, 2002
COPYRIGHT MATERIAL OMITTED Maria A. Stratton, Federal Public Defender, James H. Locklin, Deputy Federal Public Defender, Los Angeles, California, for the defendant-appellant.

James S. Gordon, United States Attorney, Ronald L. Cheng, Assistant United States Attorney, Curtis A. Kin, Assistant United States Attorney, Los Angeles, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; David O. Carter, District Judge, Presiding. D.C. No. CR-99-00139-DOC.

Before: BROWNING, FERNANDEZ, and FISHER, Circuit Judges.

PER CURIAM:

Thomas L. Guagliardo challenges his conviction for possession of child pornography in violation of 18 U.S.C. § 2252A(a) (5) (B), and three conditions attached to his supervised release. We affirm the conviction but remand for resentencing.

On July 1, 1997, Guagliardo “conversed” in an Internet chat room with an undercover police detective. Guagliardo claimed to have a collection of 7,500 images and 105 movies of pre-teen child pornography. Later, Guagliardo met with another undercover officer and gave him three computer disks containing pornographic images of preadolescent girls.

Guagliardo was charged with one count of violating 18 U.S.C. § 2252A(a) (5) (B), which at that time made it a crime to

knowingly possess [ ] any book, magazine, periodical, film, videotape, computer disk, or any other material that contains 3 or more images of child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer, or that was produced using materials that have been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer.1

Guagliardo was convicted after a bench trial. He was sentenced to 15 months’ imprisonment followed by three years of supervised release.

Guagliardo argues that there was insufficient evidence of a connection to interstate or foreign commerce to satisfy the statutory requirement. Although there may have been insufficient evidence that his images had been “transported” in interstate commerce, we affirm the conviction because Guagliardo “produced” the images with materials from interstate commerce when he copied them onto computer disks.

The government proved that Guagliardo copied his images onto computer disks that had been manufactured abroad.2 Guagliardo, however, compares a computer disk to an empty filing cabinet that passively stores information, and thus argues that the disks did not “produce” the images. The analogy, however, is strained. When the file containing the image is copied onto a disk, the original is left intact and a new copy of the image is created, so the process “produces” an image. See United States v. Lacy, 119 F.3d 742 (9th Cir. 1997) (holding that images were “produced” when they were downloaded onto a computer); see also United States v. Angle, 234 F.3d 326, 341 (7th Cir. 2000) (holding that visual depictions “are `produced’ when computer equipment, including computer diskettes, are used to copy the depictions onto the diskettes”), cert. denied, 533 U.S. 932, 121 S. Ct. 2556, 150 L. Ed. 2d 722 (2001).3 Thus, Guagliardo “produced” images of child pornography with materials from foreign commerce when he copied the images onto the disks.

To prove that Guagliardo’s images were of actual children, rather than computer-edited images of adults, Free Speech Coalition v. Reno, 198 F.3d 1083 (9th Cir. 1999), cert. granted, 531 U.S. 1124, 121 S. Ct. 876, 148 L. Ed. 2d 788 (2001), the government introduced evidence that Guagliardo’s images had been published in magazines dating from the 1970s and 1980s, before computer “morphing” technology was available. A government witness, William Siebert, testified that he had worked as a mail inspector for the Customs Service during the mid-1980s and that he had personally encountered magazines that contained copies of Guagliardo’s images. He also stated that he might have written investigative reports about those magazines. The district court denied Guagliardo’s request under the Jencks Act to require the government to produce those reports.

We review for abuse of discretion a district court’s denial of a discovery motion made pursuant to the Jencks Act. See United States v. Nash, 115 F.3d 1431, 1440 (9th Cir. 1997). We need not decide whether the district court abused its discretion, however, because any error would be harmless. See United States v. Brumel-Alvarez, 991 F.2d 1452, 1456 (9th Cir. 1992). Independent of Siebert’s testimony, the district court also found that a sufficient number of the magazines bore copyright dates from the 1970s, which proved that they had been in circulation prior to the development of morphing technology. Consequently, even if Seibert’s reports were available and somehow discredited his factual testimony, there would be sufficient independent evidence to sustain the judgment.

Finally, Guagliardo disputes three conditions attached to his supervised release. First, he challenges a condition that he not possess “any pornography,” including legal adult pornography. In United States v. Bee, 162 F.3d 1232 (9th Cir. 1998), we recognized that a probationer does not have an unqualified First Amendment right to “sexually stimulating or sexually oriented materials.” A probationer, however, has a separate due process right to conditions of supervised release that are sufficiently clear to inform him of what conduct will result in his being returned to prison. See Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972) (“we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he may act accordingly”); United States v. Schave, 186 F.3d 839, 843 (7th Cir. 1999).

As the Third Circuit recognized in United States v. Loy, 237 F.3d 251, 263 (3d Cir. 2001), a probationer cannot reasonably understand what is encompassed by a blanket prohibition on “pornography.” The term itself is entirely subjective; unlike “obscenity,” for example, it lacks any recognized legal definition. The district court here could not itself define the term, stating only that “The Court won’t have any trouble defining it if [Guagliardo] violates it.” This after-the-fact definition, however, leaves Guagliardo in the untenable position of “discover [ing] the meaning of his supervised release condition only under continual threat of reimprisonment, in sequential hearings before the court.” Loy, 237 F.3d at 258.

The government asserts that any vagueness is cured by the probation officer’s authority to interpret the restriction. This delegation, however, creates “a real danger that the prohibition on pornography may ultimately translate to a prohibition on whatever the officer personally finds titillating.” Id. at 266. A probation officer could well interpret the term more strictly than intended by the court or understood by Guagliardo. In Farrell v. Burke, No. 97 Civ. 5708, 1998 WL 751695 (S.D.N.Y. Oct. 28, 1998), for example, the parolee had been returned to prison for possessing two books of non-obscene gay erotica and a periodical that contained “satirical articles on gay political activity, art and culture” — materials that the parolee did not consider pornographic. The parole officer, however, had interpreted the prohibition on “pornography” to include any nude depiction whatsoever, whether “Playboy Magazine or a photograph of Michelangelo’s sculpture, David.” Id. at *6.

Reasonable minds can differ greatly about what is encompassed by “pornography.” Given this inherent vagueness, Guagliardo cannot determine how broadly his condition will extend. Further, we cannot determine whether the condition is otherwise reasonable under 18 U.S.C. § 3583(d). We remand for the district court to impose a condition with greater specificity.

Second, Guagliardo challenges a condition that he not reside in “close proximity” to places frequented by children. In Bee, 162 F.3d at 1235, we upheld a condition that the defendant not “loiter within 100 feet” of areas frequented by children. Guagliardo’s condition, however, is vague because it leaves “close proximity” undefined. We remand for the court to specify a precise distance limitation for Guagliardo’s residency restriction.

Third, he argues that a condition that requires him to submit to any search by law enforcement or probation officers is overbroad under United States v. Consuelo-Gonzalez, 521 F.2d 259 (9th Cir. 1975) (en banc). In United States v. Knights, 534 U.S. 112, 122 S. Ct. 587, 151 L. Ed. 2d 497 (2001), however, the Supreme Court recently affirmed the validity of a search pursuant to a probation term that authorized a warrantless search at any time “by any probation officer or law enforcement officer,” as long as the search was supported by reasonable suspicion. Consequently, we affirm this condition.

CONCLUSION

For the foregoing reasons, we AFFIRM the conviction but REMAND for resentencing.