US v. Gendron
Case Date: 03/02/1994
Court: United States Court of Appeals
Docket No: 92-2003
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March 2, 1994 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 92-2003 UNITED STATES, Appellee, v. DANIEL A. GENDRON, Defendant, Appellant. _____________________ ERRATA SHEET Please make the following correction in the opinion in the above case released on February 28, 1994: Appendix, Page 44, line 4: insert the word "suspected" before the word "child". UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 92-2003 UNITED STATES, Appellee, v. DANIEL A. GENDRON, Defendant, Appellant. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Jose Antonio Fuste,* U.S. District Judge] ___________________ ____________________ Before Breyer, Chief Judge, ___________ Boudin, Circuit Judge, _____________ Pollak,** Senior District Judge. _____________________ ____________________ Jonathan S. Sales, by Appointment of the Court, with whom The Law _________________ _______ Office of William P. Homans, Jr. was on brief for appellant. ________________________________ Robert E. Richardson with whom A. John Pappalardo, United States ____________________ __________________ Attorney, and James F. Lang, Assistant United States Attorney, were on _____________ brief for appellee. ____________________ February 28, 1994 ____________________ _____________________ * Of the District of Puerto Rico, sitting by designation. ** Of the Eastern District of Pennsylvania, sitting by designation. BREYER, Chief Judge. Daniel Gendron ordered and ____________ received a videotape that contained child pornography. Though he did not know it, the firm that sent him the tape was part of a law enforcement operation designed to catch child pornography buyers. A jury subsequently convicted Gendron of knowingly receiving child pornography through the mails. 18 U.S.C. 2252(a)(2). He now appeals that conviction, claiming that the child pornography statute is unconstitutional, that the government unlawfully entrapped him, and that the government's search warrant (for the tape in his house) was constitutionally defective. After considering these and other related claims, we affirm the conviction. I The Statute's Constitutionality _______________________________ The child pornography statute reads as follows: (a) Any person who -- ______________ . . . (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 by any -3- 3 means including by computer 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) . . . . 18 U.S.C. 2252(a)(2) (emphasis added). Gendron points out that the Ninth Circuit has interpreted this statute as permitting a conviction of a person who does not know the ______________ child-pornographic nature of the material received, and, for ______ that reason, has found it unconstitutional. See United ___ ______ States v. X-Citement Video, 982 F.2d 1285 (9th Cir. 1992), ______ _________________ petition for cert. filed, 62 U.S.L.W. 3360 (1993). He says ________________________ we should do the same. The Ninth Circuit, in United States v. Thomas, 893 _____________ ______ F.2d 1066 (9th Cir.), cert. denied, 498 U.S. 826 (1990), _____________ considered the scope of the statute's word "knowingly." It held that "knowingly" modifies only the statute's word "receives" (or "reproduces"), not its subclause (A) or (B). Consequently, it "does not require" that a defendant "knew that the pornography he . . . received involved a minor." -4- 4 Id. at 1070. Two years later, in X-Citement Video, the ___ _________________ Ninth Circuit pointed out that the statute, as so interpreted, would permit conviction of a person who "knowingly receives" a video, but does not know that the ______________ video contains child pornography. Because that interpretation would permit conviction of a person with an innocent state of mind, the court found the statute unconstitutional. X-Citement Video, 982 F.2d at 1292; see _________________ ___ New York v. Ferber, 458 U.S. 747, 765 (1982) (child _________ ______ pornography statutes must involve "some element of scienter" to pass constitutional muster). We do not accept the Ninth Circuit's conclusion that the statute is unconstitutional, however, because we do not agree with the statutory premise set forth in Thomas. ______ In our view, and in the view of all courts to have considered the matter since the X-Citement Video decision, _________________ see United States v. Edwards, No. 92-CR-884, 1993 WL 453461 ___ ______________ _______ (N.D. Ill. Nov. 4, 1993); United States v. Long, 831 F. _____________ ____ Supp. 582 (W.D. Ky. 1993); United States v. Kempton, 826 F. _____________ _______ Supp. 386 (D. Kan. 1993); United States v. Prytz, 822 F. _____________ _____ Supp. 311 (D.S.C. 1993), the statute's word "knowingly" modifies not only the word "receives," but also the statute's description of the "receive[d]" material's -5- 5 pornographic content. That is to say, we understand the statute to require for conviction that the government prove not only that the defendant "knowingly receive[d]" material that he knows contains a "visual depiction" of a person "engaging in sexually explicit conduct," but also that the defendant knows that the person so depicted is a minor. Accord Edwards, 1993 WL 453461 at *5; Long, 831 F. Supp. at ______ _______ ____ 586; Kempton, 826 F. Supp. at 389; Prytz, 822 F. Supp. at _______ _____ 321. We concede that one cannot know automatically, simply from the position of the words in the sentence, just ______________________________________________________ which of the words following "knowingly" the word "knowingly" is meant to modify. However, that linguistic fact simply reflects the more basic fact that statements, and parts of statements, quite often derive their meaning from context. The sentence "John knows that people speak Spanish in Tegucigalpa, which is the capital of Honduras," taken by itself, leaves us uncertain whether or not John knows that Tegucigalpa is the capital of Honduras; but, the context of the story in which the sentence appears, a context that includes other sentences, may clear up our uncertainty and leave us with no doubt at all. -6- 6 Similarly, when courts interpret criminal statutes, they draw upon context, including the statute's purpose and various background legal principles, to determine which states of mind accompany which particular elements of the offense. Thus, courts normally hold that the prosecutor need not prove the defendant's state of mind in respect to "jurisdictional facts" (for example, that an assault victim was a federal officer, or that stolen checks _______ moved in the mail), whatever the mental state required for ___________ the crime's other elements. E.g., United States v. Feola, ____ _____________ _____ 420 U.S. 671, 676-86 (1975); Barnes v. United States, 412 ______ ______________ U.S. 837, 847 (1973); United States v. Blassingame, 427 F.2d _____________ ___________ 329, 330 (2d Cir. 1970), cert. denied, 402 U.S. 945 (1971); ____________ see generally S. Rep. No. 307, 97th Cong., 1st Sess. 72-74 _____________ (1981). Context (what ordinarily counts as bad behavior; the reason why Congress mentions jurisdictional facts; etc.), in addition to the position of words in a sentence, helps a court decide how, and when, to interpret statutes as incorporating states of mind. See, e.g., Blassingame, 427 ___ ____ ___________ F.2d at 330. The background context here includes the fact that, when a criminal statute is totally silent about state of mind (as is commonly the case), courts nonetheless assume -7- 7 that Congress intended to require some kind of guilty knowledge with respect to major wrong-creating elements of major crimes. Liparota v. United States, 471 U.S. 419, 426 ________ _____________ (1985) (courts should not read criminal statutes as "requiring no mens rea"); United States v. United States ________ _____________ ______________ Gypsum Co., 438 U.S. 422, 438 (1978) (in criminal statutes, __________ "far more than the simple omission of the appropriate phrase from the statutory definition is necessary to justify dispensing with an intent requirement"); Morissette v. __________ United States, 342 U.S. 246, 255-56, 263 (1952). _____________ Thus, had the word "knowingly" not appeared at all in the child pornography statute, courts (while not insisting upon "knowledge" of the "interstate commerce" element of the offense, see supra pp. 5-6) would have ___ _____ insisted nonetheless that prosecutors prove a guilty state of mind in respect to the nature of the material. For one thing, the fact that the material shows a child engaging in sexually explicit activity is not a secondary, or jurisdictional, aspect of the crime. It is the moral and criminal heart of the matter. For another thing, without such a requirement, the statute would severely punish purely innocent conduct. It would reach, for example, a post office employee who "knowingly distributes" mail but knows -8- 8 nothing of its contents, or a film developer who for some reason returns an undeveloped roll of film to a customer. Congress could not have intended these results. Pp. 8-12, infra; see United States v. Turkette, 452 U.S. 576, 580 _____ ___ ______________ ________ (1981) (courts must construe statutes to avoid absurd results); United States v. Ferryman, 897 F.2d 584, 589 (1st _____________ ________ Cir. 1990) (same). Finally, as X-Citement Video itself ________________ demonstrates, to read this criminal statute as "requiring no mens rea" (contrary to Liparota, 471 U.S. at 426) likely ________ ________ makes it unconstitutional. See New York v. Ferber, 458 U.S. ___ ________ ______ 747, 765 (1982) (criminalization of child pornography must involve "some element of scienter on the part of the defendant"); see also Osborne v. Ohio, 495 U.S. 103, 113 _________ _______ ____ n.9, 115 (1990) (same; "recklessness" suffices). Such an interpretation therefore violates courts' duty to interpret federal statutes so that they are consistent with the federal Constitution whenever possible. E.g., Edward J. ____ _________ DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades _______________ _________________________________________ Council, 485 U.S. 568, 575 (1988). _______ If we would interpret a silent statute as imposing ______ a guilty state of mind requirement, how could Congress's explicit use of the word "knowingly" eliminate it? It seems far more likely that Congress used the word "knowingly" to -9- 9 make clear that it did intend to insist that a defendant ___ know the child-pornographic nature of the material. The legislative history confirms this view. For example, Senator Roth, the author of the amendment which extended the original bill to distribution as well as production, was asked whether the amendment meant that the distributor or seller must have [either] actual knowledge that the materials do contain child pornographic depictions, or [that] he should have had such actual knowledge. He responded: 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 marketing of child pornography and ____________________________________ thereby are actively contributing to the maintenance of this form of child abuse are subject to prosecution under this amendment. 123 Cong. Rec. 33,050 (1977) (emphasis added). The language to which Senator Roth referred found its way into the final law (with minor stylistic changes). Compare 123 Cong. Rec. _______ 33,061 (1977) (Senate bill with Roth amendment) with Pub. L. ____ No. 95-225, 2(a), 92 Stat. 7, 7-8 (1978) (final version). Furthermore, the Department of Justice wrote Congress a letter in which it told Congress that the -10- 10 use of the word "knowingly" in subsection 2252(a)(1) is appropriate to make it clear that the bill does not ___________________ apply to . . . innocent transporters who ________ _________________________ have no knowledge of the nature or ________________________________________ character of the material they are _____________________________ transporting. S. Rep. No. 438, 95th Cong., 2d Sess. 29 (1978), reprinted _________ in 1978 U.S.C.C.A.N. 40, 64 (emphasis added) [hereinafter __ "Report"]. Thus, the Department and the amendment's author agreed that the point of the statute's explicit use of the word "knowingly" lies in the application of that word to the nature of the material's contents, not to the nature of its ________ distribution or receipt. It is true that the Department also said, in a different context, We assume that it was 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. Id., 1978 U.S.C.C.A.N. at 64 (emphasis added). In saying ___ this, however, the Department was referring to a different _________ statutory provision -- one that penalized production, not __________ distribution. And Congress responded by dropping the word "knowingly" from the production section of the statute, but not from the distribution section. H.R. Conf. Rep. No. 811, ___ 95th Cong., 2d Sess. 5, reprinted in 1978 U.S.C.C.A.N. 69, ____________ -11- 11 69; compare Pub. L. No. 95-225, 2251(a), 92 Stat. 7, 7 _______ (1978) (knowledge not required in production prosecution) with id. 2252(a), 92 Stat. at 7-8 (knowledge required in ____ ___ distribution or receipt prosecution). Finally, we concede that at one point the Department's letter suggests that there be no knowledge requirement with respect to age, even for distribution prosecutions. It said, 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. Report, supra, at 29, 1978 U.S.C.C.A.N. at 64 (emphasis _____ added). We have found nothing in the statute or the legislative history, however, to suggest that Congress adopted this recommendation. To the contrary, the legislative history reveals congressional awareness of the important constitutional differences between adult and child pornography, the likely constitutional significance of age, and the concomitant constitutional need for a guilty state of mind requirement with respect to age. See, e.g., 123 ___ ____ Cong. Rec. 33,048 (1977) (statement of Sen. Goldwater); id. ___ -12- 12 at 33,051 (statement of Sen. Hatch). In light of this background, we conclude that the statute's word "knowingly" applies to age as well as to conduct. That being so, we find no constitutional obstacle to application of the statute in the case before us. (We note that while this opinion was circulating in draft form among the members of this panel, another panel of this court reached the same conclusion. See United States v. Gifford, No. 93-1645, slip ___ _____________ _______ op. at 20-23 (1st Cir. Feb. __, 1994).) II Entrapment __________ The evidence in this case demonstrated rather convincingly that Gendron ordered and received a videotape that he knew contained child pornography. Consequently, Gendron's strongest evidence-based claim does not deny his having engaged in conduct that violates the statute. Rather, he argues that the evidence shows the government "entrapped" him into doing so. Gendron notes that the entrapment defense has two parts: (1) the government's "inducement" of criminal behavior; (2) by a defendant who was not "predisposed" to commit the crime. See, e.g., ___ ____ United States v. Rodriguez, 858 F.2d 809, 812-15 (1st Cir. _____________ _________ 1988) (setting forth elements of entrapment and relevant -13- 13 evidentiary burdens). Although the court submitted the entrapment issue to the jury, which found against Gendron, he argues that the evidence did not support the jury's verdict. He says that it did not allow the government to rebut his claim of "inducement," nor was it sufficient to show (beyond a reasonable doubt) his "predisposition" to commit the crime. Consequently, he says, particularly in light of a recent Supreme Court case that accepted rather similar arguments, Jacobson v. United States, 112 S. Ct. ________ _____________ 1535 (1992), the law requires a judgment of acquittal. It may help in evaluating Gendron's argument if we set forth in simplified terms our understanding of the entrapment defense and its elements. (For more comprehensive accounts, see, e.g., Rodriguez, supra; S. Rep. _________ _____ No. 307, 97th Cong., 1st Sess. 118-30 (1981); LaFave & Scott, Substantive Criminal Law 5.2 (1986); Louis M. Seidman, The Supreme Court, Entrapment, and Our Criminal __________________________________________________ Justice Dilemma, 1981 Sup. Ct. Rev. 111.) The Supreme Court _______________ has described that defense as resting upon an assumption that Congress, when enacting criminal statutes, does not intend the statute to apply to violations arising out of (1) the government's "abuse" of its crime "detection" and law _____ "enforcement" efforts by "instigati[ng]" the criminal -14- 14 behavior and "lur[ing]" to commit the crime (2) persons who are "otherwise innocent." Sorrells v. United States, 287 __________________ ________ ______________ U.S. 435, 448 (1932) (emphasis added). Consequently, the entrapment doctrine forbids punishment of an "otherwise _________ innocent" person whose "alleged offense" is "the product of ________ __________ the creative activity" of government officials. Id. at 451 _____________________ ___ (emphasis added). As the Supreme Court has recently stated, When the Government's quest for conviction leads to the apprehension of an otherwise law-abiding citizen who, if _____________________________ __ left to his own devices, likely would _________________________ have never run afoul of the law, the courts should intervene. Jacobson, 112 S. Ct. at 1543 (emphasis added). Since the ________ Court has repeatedly expressed concern about both government ____ "abuse" of its enforcement powers (or the like) and the ___ "otherwise law-abiding citizen" (or the like), it is not surprising that the defense has two parts, one that focuses upon government "inducement" and the other upon the defendant's "predisposition." In describing "inducement," courts have distinguished between proper and improper law enforcement activities. It is proper (i.e., not an "inducement") for the government to use a "sting," at least where it amounts to providing a defendant with an "opportunity" to commit a crime. E.g., Sorrells, 287 U.S. at 441; Sherman v. United ____ ________ _______ ______ -15- 15 States, 356 U.S. 369, 372 (1958); United States v. Coady, ______ ______________ _____ 809 F.2d 119, 122 (1st Cir. 1987); United States v. Espinal, _____________ _______ 757 F.2d 423, 425 (1st Cir. 1985). Without this kind of law enforcement weapon, it would often prove difficult, or impossible, to stop certain seriously criminal activity, particularly activity involving drugs, or corruption, or other crimes in which no direct participant wants the crime detected. See Hampton v. United States, 425 U.S. 484, 495 ___ _______ _____________ n.7 (1976) (Powell, J., concurring in judgment); United ______ States v. Bradley, 820 F.2d 3, 6 (1st Cir. 1987). ______ _______ An improper "inducement," however, goes beyond providing an ordinary "opportunity to commit a crime." Jacobson, 112 S. Ct. at 1541. An "inducement" consists of ________ an "opportunity" plus something else -- typically, excessive ____ pressure by the government upon the defendant or the government's taking advantage of an alternative, non- criminal type of motive. A "sting" that combines an ordinary opportunity with these extra elements runs the risk of catching in the law enforcement net not only those who might well have committed the crime elsewhere (in the absence of the sting), but also those who (in its absence) likely would never have done so. Insofar as the net catches -16- 16 the latter, it stretches beyond its basic law enforcement purpose. Some examples of improper "inducement" may help. Courts have found a basis for sending the entrapment issue to the jury (or finding entrapment established as a matter of law) where government officials: (1) used "intimidation" and "threats" against a defendant's family, United States v. _____________ Becerra, 992 F.2d 960, 963 (9th Cir. 1993); (2) called every _______ day, "began threatening" the defendant, and were belligerent, United States v. Groll, 992 F.2d 755, 759 (7th _____________ _____ Cir. 1993); (3) engaged in "forceful" solicitation and "dogged insistence until [defendant] capitulated," Rodriguez, 858 F.2d at 815; (4) played upon defendant's _________ sympathy for informant's common narcotics experience and withdrawal symptoms, Sherman, 356 U.S. at 373; (5) played _______ upon sentiment of "one former war buddy . . . for another" to get liquor (during prohibition), Sorrells, 287 U.S. at ________ 440-41; (6) used "repeated suggestions" which succeeded only when defendant had lost his job and needed money for his family's food and rent, United States v. Kessee, 992 F.2d ______________ ______ 1001, 1003 (9th Cir. 1993); (7) told defendant that she (the agent) was suicidal and in desperate need of money, United ______ States v. Sullivan, 919 F.2d 1403, 1419 & n.21 (10th Cir. ______ ________ -17- 17 1990). The background and context of each example illustrate possible government "overreaching" -- of its having acted unfairly by employing methods of persuasion or inducement that create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it. Model Penal Code 2.13(1)(b). The second part of the entrapment defense, "predisposition," is somewhat more difficult to understand. Some Supreme Court Justices (and the Model Penal Code's authors) have argued that "predisposition" is not even relevant. Rather, they thought that the defense should focus only upon government impropriety, preventing law enforcement officers from using methods that might lead ordinary law-abiding citizens astray, whether or not the particular defendant was "predisposed" to commit the crime. See, e.g., Model Penal Code 2.13; Sorrells, 287 U.S. at ___ ____ ________ 453 (Roberts, J., joined by Brandeis & Stone, JJ., concurring) (arguing for this "objective" view of the defense); Sherman, 356 U.S. at 378 (Frankfurter, J., joined _______ by Douglas, Harlan & Brennan, JJ., concurring) (same). The Supreme Court itself, however, has rejected this view. It saw in the entrapment defense not so much a sanction used to -18- 18 control police conduct, but rather a protection of the ordinary law-abiding citizen against government overreaching. Consequently, it saw no need to permit a defendant to take advantage of that defense unless he himself was such a citizen. See, e.g., Sorrells, 287 U.S. ___ ____ ________ at 448; Sherman, 356 U.S. at 376-77; United States v. _______ ______________ Russell, 411 U.S. 423, 433-35 (1973). The upshot is that we _______ must find out just who that "innocent person" is. Who is the "otherwise law-abiding citizen" who would not _________ "otherwise" have committed the crime? The question's difficulty lies in the word "otherwise." That word requires us to abstract from present circumstances. We cannot simply ask whether, without the government's present activity, the defendant would likely have committed the crime when he did. After all, without ____ the government's having presented that opportunity, the ____ defendant, no matter how "predisposed," would likely not have acted then. Nor can we simply ask whether the ____ defendant would have acted similarly at some other time had ___ he faced similar circumstances, since his present behavior _______________________________ virtually compels an affirmative answer to the question phrased in this way. -19- 19 The right way to ask the question, it seems to us, is to abstract from -- to assume away -- the present circumstances insofar as they reveal government ___________________________________________ overreaching. That is to say, we should ask how the ____________ defendant likely would have reacted to an ordinary ________ opportunity to commit the crime. See Jacobson, 112 S. Ct. ___ ________ at 1540 n.2. By using the word "ordinary," we mean an opportunity that lacked those special features of the government's conduct that made of it an "inducement," or an "overreaching." Was the defendant "predisposed" to respond affirmatively to a proper, not to an improper, lure? ______ ________ This way of looking at the matter seems to flow from the way in which the Supreme Court has resolved the clash between "objective" and "subjective" views of entrapment -- at least if one looks at that resolution as simply denying the defense to one whom it is not designed to help, namely the kind of defendant who (without a "sting") might well be out committing crimes of the sort that a "sting" seeks to stop. See Russell, 411 U.S. at 434. ___ _______ Further, our effort to define "predisposition" through reference to the nature of the government conduct reflects the fact that, despite partial descriptions that focus primarily upon the defendant's state of mind, government __________ -20- 20 misconduct lies at the heart of the entrapment defense. Were that not so -- were the issue simply the defendant's state of mind -- the law would permit an innocent minded defendant to raise an entrapment claim when a private person _______ "induced" him (through similar "overreaching" conduct) to commit a crime. But the law does not authorize the defense in those circumstances, however "outrageous" the private person's conduct. E.g., Russell, 411 U.S. at 433; United ____ _______ ______ States v. Jones, 950 F.2d 1309 (7th Cir. 1991); United ______ _____ ______ States v. Bradley, 820 F.2d 3, 6 (1st Cir. 1987); United ______ _______ ______ States v. Emmert, 829 F.2d 805 (9th Cir. 1987); United ______ ______ ______ States v. McLernon, 746 F.2d 1098 (6th Cir. 1984); Whiting ______ ________ _______ v. United States, 321 F.2d 72, 76 (1st Cir. 1963). _____________ Finally, this way of phrasing the question prevents one from concluding automatically, simply from the fact that the defendant committed the crime, that he was "predisposed" to commit it. At the same time, if the answer to the question so phrased is affirmative, the defendant would seem to be the sort of person (and his conduct in this instance is the sort of conduct) that the criminal statute intends to punish. He is, in other words, someone who would likely commit the crime under the circumstances and for the reasons normally associated with that crime, and who -21- 21 therefore poses the sort of threat to society that the statute seeks to control, and which the government, through the "sting," seeks to stop. We turn now to Jacobson v. United States, the ________ _____________ recent child pornography case where the Supreme Court found entrapment as a matter of law, and upon which Gendron heavily relies. Government agents found Jacobson's name on a bookstore mailing list that indicated that the store had mailed photos of naked children to Jacobson. Government agents then sent Jacobson letters from fictitious people and organizations, soliciting orders for child pornography. In three respects, however, they did more than provide an ordinary opportunity to buy child pornography: First, the solicitations reflected a psychologically "graduated" set of responses to Jacobson's own noncriminal responses, beginning with innocent lures and progressing to frank offers. The government started with a "sexual attitude questionnaire," which elicited a general interest in "pre-teen sex"; it followed with letters containing general, nonexplicit references implying a possibility of child pornography; it then sent Jacobson more personal correspondence; and, finally (but after Jacobson had discontinued the correspondence), it sent him child pornography catalogues. -22- 22 112 S. Ct. at 1538-39. Second, the government's soliciting letters sometimes depicted their senders as "free speech" lobbying organizations and fighters for the "right to read what we desire"; they asked Jacobson to "fight against censorship and the infringement of individual rights." Id. ___ at 1538, 1542. Third, the government's effort to provide an "opportunity" to buy child pornography stretched out over two and a half years. Taken together, one might find in these three sets of circumstances -- the graduated response, the long time period, the appeal to a proper (free speech) motive -- a substantial risk of inducing an ordinary law- abiding person to commit the crime. Indeed, the government conceded in Jacobson that its methods amounted, for ________ entrapment purposes, to an improper "inducement." Id. at ___ 1540 n.2. Jacobson's importance, however, concerns the ________ "predisposition" part of the entrapment defense. The Court held that the evidence, as a matter of law, required acquittal because a reasonable jury would have had to doubt Jacobson's predisposition. The evidence of predisposition consisted of two facts: (1) that before the government became involved Jacobson was on a private bookstore's mailing list for dubious photos; and (2) that he responded -23- 23 affirmatively to the government's solicitations. The first fact, the Court wrote, showed little about a predisposition to act unlawfully because ordering the photos was lawful at __ the time. 112 S. Ct. at 1542. The second, placing orders, could not show how Jacobson would have acted had the solicitation lacked the three elements we just mentioned, namely, the improper appeals to anti-censorship motives, the graduated response, and the lengthy time frame. Id. at ___ 1542-43. The government therefore failed to show "predisposition" (beyond a reasonable doubt). That means (as we understand it) that the government's evidence did not show how Jacobson would have acted had he been faced with an ordinary "opportunity" to commit the crime rather than a special "inducement." Gendron's case is similar to Jacobson's in two respects. The government initially found Gendron's name on a "naked children" mailing list, and the government sent him child pornography solicitations over a fairly long period of time (one of the "sham" companies was also involved in Jacobson). There are, however, two critical differences. ________ First, any governmental "overreaching" here was less extensive than in Jacobson. The government neither ________ "graduated" its responses (from innocent lure to frank -24- 24 offer) nor, with one exception, did it appeal to any motive other than the desire to see child pornography. The exception consists of one solicitation (also present in Jacobson) in which the government's sham company referred to ________ "hysterical nonsense" about pornography, and asked why the government was "spending millions of dollars to exercise international censorship while tons of drugs" enter the country "easily." Nonetheless, here the government did not disguise itself as a "sexual rights" lobbying organization, seeking to lobby Congress to remove restraints and funding its efforts through pornographic catalogue sales. Nor did the government ask Gendron to commit the crime as a matter of principle. See 112 S. Ct. at 1538-39, 1542. Since the ___ "overreaching" here was far less extensive than in Jacobson, ________ there is less reason to believe that government "overreaching" (i.e., an improper "inducement") could lead an "otherwise innocent" person to commit the crime. See ___ Gifford, No. 93-1645, slip op. at 15-16. _______ Second, the record contains substantial evidence of Gendron's state of mind; that evidence permits the conclusion that (inducement or not) he was "predisposed" to commit the crime. In late 1986, when Gendron first received a verbally explicit "child pornography" catalogue from the -25- 25 government's sham company, he placed an order accompanied by a letter in which he said, I have finally found the kind of educational material I've been dreaming of possessing for quite some time. I . . . [am so] excited that I have decided to order two of your titles . . . . The government did not fill the order, but three years later Gendron responded to a letter from another sham, a pretend foreign company, which spoke of "hard to obtain erotica." He wrote, I am very interested in the other part of your services that are very difficult to obtain in my country. . . . I am becoming very bored with adult pornography . . . . I like very young girls only and color videos. Can you help me. The sham firm responded with an explicit child pornography catalogue, and Gendron ordered several of the titles. (Again the government did not fill the order.) A few months later the government sent Gendron a third explicit child pornography catalogue. Gendron sent back an order and a check. Two months later, he wrote again, asking if the firm had "forgotten" his order, making clear that he still wanted "this type of educational materials," stating, "don't worry, I am not connected in any way with law enforcement," and adding "Please Hurry." (This time the government filled the -26- 26 order with the video that led to this prosecution.) Unlike Jacobson's correspondence, Gendron's correspondence reveals only a desire to view child pornography; it contains nothing like Jacobson's urging of a "counter attack" against those "who are determined to curtail our freedoms." 112 S. Ct. at 1538. (See Appendix for a detailed chronology of the events in Gendron's case.) This evidence, taken together, reveals a defendant who met an initial opportunity to buy child pornography with enthusiasm, who responded to each further government initiative with a purchase order, and who, unlike Jacobson, showed no particular interest in an anti-censorship campaign. This evidence, as we have said, permits a jury to find (beyond a reasonable doubt) that Gendron would have responded affirmatively to the most ordinary of opportunities, and, hence, was "predisposed" to commit the crime. We therefore find the jury's entrapment decision lawful. III Search and Seizure __________________ Government agents searched Gendron's house, and seized the primary piece of evidence (the videotape), -27- 27 pursuant to a warrant. That warrant authorized (1) a search of the residence of Daniel A. Gendron, 105 Winthrop Street, Rehoboth, Massachusetts 02769; for (2) a "VHS videocassette labeled PTL (1)" and related items; (3) "after delivery by mail to and receipt by Daniel ________________________________________________ Gendron" of a specifically described parcel (containing the _______ tape) until the expiration of the warrant (ten days after its issuance). Gendron concedes that the warrant meets the Constitution's two basic requirements: its issuance was supported by "probable cause" to believe that evidence of criminal activity would exist in his house after the delivery of the tape; and it "particularly describ[es] the place to be searched, and the . . . things to be seized." U.S. Const. amend. IV. He claims that it is nonetheless invalid because it is an "anticipatory warrant" which fails adequately to specify the time at which it will take effect. ____ Gendron cites in support a recent case decided by a different panel of this court, United States v. _______________ Ricciardelli, 998 F.2d 8 (1st Cir. 1993). ____________ In general, the simple fact that a warrant is "anticipatory" -- i.e., that it takes effect, not upon issuance, but at a specified future time -- does not -28- 28 invalidate a warrant or make it somehow suspect or legally disfavored. Warrants often do specify that they will take effect upon issuance. But the Constitution imposes no such requirement. Rather, it says that a search must not be "unreasonable," and that warrants must be supported by "probable cause." U.S. Const. amend. IV. There is nothing unreasonable about authorizing a search for tomorrow, not today, when reliable information indicates that, say, the marijuana will reach the house, not now, but then. Nor does it seem automatically unreasonable to tie the warrant's search authority to the future event that brings with it the probable cause (e.g., the time of "delivery of a large brown package addressed to X with return address Y"). Ricciardelli, 998 F.2d at 10-11. In principle, the use of a ____________ "triggering event" can help assure that the search takes place only when justified by "probable cause"; and ____ anticipatory warrants may thereby offer greater, not lesser, p |