ROBERT W. TIDWELL, PETITIONER V. UNITED STATES OF AMERICA No. 89-7271 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Sixth Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. A1-A2) is not reported. The opinion of the district court (Pet. App. B1-B23) is not reported. JURISDICTION The judgment of the court of appeals was entered on February 26, 1990. The petition for a writ of certiorari was filed on April 23, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether petitioner was subject to prosecution in the Western District of Kentucky on an indictment charging that, in that district, he had knowingly used minors to engage in sexually explicit conduct for the purpose of producing child pornography. 2. Whether Congress, in 18 U.S.C. 2251(a) and 18 U.S.C. 2252(a), authorized separate convictions and punishments for the production of child pornography and the transportation, receipt, or distribution in interstate commerce of the same pornography. 3. Whether the Double Jeopardy Clause prohibited petitioner's prosecution on a charge of using minors to engage in sexually explicit conduct for the purpose for producing child pornography after he had been convicted in an earlier prosecution of the receipt of the same pornography after it had moved in interstate commerce. STATEMENT Upon his conditional guilty plea, petitioner was convicted in the United States District Court for the Western District of Kentucky on two counts of employing a minor child to engage in sexually explicit conduct for the purpose of producing a visual depiction of that conduct (which depiction was actually mailed), in violation of 18 U.S.C. 2251(a). He was sentenced to a total of 118 months' imprisonment. The court of appeals affirmed. Pet. App. A1-A2. Petitioner's principal contention is that this prosecution was barred by his prior convictions in the Middle District of Tennessee on related charges. 1. The charges against petitioner in the Kentucky and Tennessee indictments arose from his involvement in child pornography produced on two occasions: First, in July 1986, in Louisville, Kentucky, petitioner participated with two others, Elessar Tetramariner and James Kaufman, in taking photographs of an 11-year-old child. The photographs depicted the minor's genitals lasciviously. Tetramariner took the film to his home in Michigan. From that location, he mailed developed "proof sheets" containing the photographs and later three individual photographs to petitioner in Nashville, Tennessee. Pet. App. B2-B3; Gov't C.A. Br. 2. Second, on March 7, 1988, petitioner took lascivious photographs of two five-year-old children in Edmonson County, Kentucky. Afterwards, petitioner transported the film from Kentucky to his home in Nashville, Tennessee, and gave it to a Walgreens drug store for developing. Walgreens shipped the film to Indiana for development. The Indiana developer then shipped prints made from the film back to the Walgreens in Nashville, where petitioner picked them up. Pet. App. B2-B3; Gov't C.A. Br. 2. 2. In April 1988, in the Middle District of Tennessee, petitioner and Tetramariner were indicted on charges of receiving and transporting child pornography in interstate commerce. Petitioner entered guilty pleas to the four counts in which he was named. They charged petitioner with violating 18 U.S.C. 2252(a)(1) and (2) by (a) receiving in Tennessee the proof sheets that Tetramariner had mailed from Michigan; (b) receiving in Tennessee the three photographs that Tetramariner had mailed from Michigan; (c) transporting the film containing the photographs of the two five-year-old children from Kentucky to Tennessee; and (d) receiving in Tennessee prints developed from that film and mailed from Indiana. Pet. App. B3. Petitioner was sentenced to a total of 13 years' imprisonment. 3. In March 1989, in the Western District of Kentucky, petitioner was indicted together with Kaufman and Tetramariner on charges of using minors to make child pornography. Petitioner was named in two counts alleging violations of 18 U.S.C. 2251(a). The first charged that, in Jefferson County, Kentucky, he and Tetramariner used the 11-year-old child to engage in sexually explicit conduct for the purpose of producing a visual depiction of that conduct and that the depiction was actually mailed. The second charged that, in Edmonson County, Kentucky, petitioner used the two 5-year-old children to engage in sexually explicit conduct for the purpose of producing a visual depiction and that the depiction was actually mailed. C.A. App. 16-17. The government advised the district court that, in proving the jurisdictional basis for the offenses charged, it would rely upon the same mailings and interstate transportation that had been involved in petitioner's Tennessee convictions. See Pet. App. B4. a. Petitioner and Tetramariner filed pretrial motions to dismiss the indictment. The district court denied the motions, holding that the Section 2251(a) offenses charged in this case were not the "same" (within the meaning of the Double Jeopardy Clause) as the Section 2252(a) offenses of which those defendants had already been convicted. Pet. App. B1-B23. The court first determined that the offenses defined by Sections 2251(a) and 2252(a) each require proof of a fact that the other does not, and thus are not the "same offense" under the test outlined in Blockburger v. United States, 280 U.S. 299 (1932). Pet. App. B7-B10. Focusing on the elements of the offenses as defined by the statutes, the court noted that Section 2251(a) requires proof that the defendant participated in producing child pornography, while Section 2252(a) does not, and that Section 2252(a) requires a showing that the defendant mailed, transported, or received pornography, whereas Section 2251(a) does not require that a defendant who has produced pornography be involved in its transportation in interstate commerce. Id. at B7-B10. /1/ The court acknowledged that proof offered in the prosecutions at issue would "substantially overlap," but found this circumstance to be immaterial under Blockburger. Id. at B10. The court explained that "it is not the proof actually offered, but the proof required by the statutes in question that is determinative." Ibid. The court found that the legislative history of the statutes also supported the conclusion that Sections 2251 and 2252 authorize separate punishments for the production and transportation or receipt of child pornography. Id. at B11. The district court also concluded that the offenses of which petitioner and his co-defendant had been convicted in Tennessee were not lesser included offenses of the Section 2251 offenses with which they were charged in this case. Id. at B13-B15. Referring to Ex parte Nielson, 131 U.S. 176 (1889), the court explained that "(t)he acts of transporting and mailing by these defendants, the offenses charged in the first indictment, were not 'integral parts' of the offenses charged in the second indictment()." Pet. App. B15. The court also found that the reasoning of Garrett v. United States, 471 U.S. 773 (1985), permitted successive prosecutions under the statutes at issue. Pet. App. B17-B19. The court concluded (Pet. App. B22): (U)nder no applicable analysis does the defendants' conduct constitute the "same offense" for purposes of double jeopardy, nor does the prosecution under this indictment violate principles of fairness or finality the Double Jeopardy Clause is intended to promote. b. Pursuant to Fed. R. Crim. P. 11(a)(2), petitioner entered conditional guilty pleas, reserving his right to withdraw his pleas in the event of a successful appeal from the denial of his double jeopardy motion. The district court sentenced petitioner to 118 months' imprisonment, to run concurrently with the term of imprisonment imposed in the Tennessee case. 4. The court of appeals affirmed in an unpublished per curiam decision, adopting the district court's reasoning. Pet. App. A1-A2. ARGUMENT The petition presents a variety of contentions, but they can be grouped in three categories. First, petitioner appears to argue that venue was improper in the district in which he was prosecuted. Second, he maintains that Congress did not intend to authorize separate convictions or punishments for the offenses of producing and of transporting or receiving a particular article of child pornography. Finally, petitioner contends that the Double Jeopardy Clause prohibits successive prosecutions for those offenses. None of these contentions warrants this Court's review. 1. Under Fed. R. Crim. P. 18, venue is proper "in a district in which the offense was committed." Section 3237(a) of Title 18 provides that if an offense is "begun in one district and completed in another, or committed in more than one district," it may be prosecuted "in any district in which such offense was begun, continued, or completed." In this case, petitioner was charged with two counts of using a minor to produce child pornography, and the children involved were photographed in the Western District of Kentucky. Venue was therefore proper in that district, since the offenses of using minors to create child pornography began there. The substance of petitioner's venue contention appears to be that the government should not have been allowed to prosecute him for producing child pornography in a district other than the one in which the government had indicted him for transporting and receiving the same materials. The validity of that contention depends on the law of double jeopardy, not venue. If (as we demonstrate) the Double Jeopardy Clause permitted the prosecution of those offenses in separate cases, nothing in Fed. R. Crim. P. 18 or the venue statute would require that those cases be commenced in a single district. This case thus presents no venue issue. 2. As the district court noted, there is an overlap in the facts underlying petitioner's Tennessee and Kentucky convictions. In Tennessee, petitioner was convicted on three counts of receiving child pornography that had been transported in interstate commerce by means of the mails. In this case, indicted in Kentucky, the factual basis for petitioner's convictions included proof of the same mailings of the same materials, in addition to proof that petitioner had participated in producing the photographs. The "first step in the double jeopardy analysis" of these facts "is to determine whether the legislature -- in this case Congress -- intended that each violation be a separate offense." Garrett v. United States, 471 U.S. at 778. See Missouri v. Hunter, 459 U.S. 359, 366 (1983); Albernaz v. United States, 450 U.S. 333, 337 (1981). In making that determination, the Blockburger test is "a useful canon of statutory construction." Garrett v. United States, 471 U.S. at 779. "Insofar as the question is one of legislative intent," however, "the Blockburger presumption must of course yield to a plainly expressed * * * view on the part of Congress." Ibid. As the district court held, an examination of relevant statutory materials and application of the Blockburger test both lead to the conclusion that Congress has authorized separate convictions and punishments for violations of Section 2251 and 2252. The two offenses are set out in separate, self-sufficient sections of Title 18, each of which prescribes its own set of penalties. Congress apparently determined that the production of child pornography is an evil separate from its transportation and receipt and that defendants who engage in both forms of misconduct should be exposed to separate conviction and punishment under each statutory provision. /2/ The Blockburger test leads to the same conclusion. Section 2251 requires proof that the defendant used a minor for the purpose of producing child pornography. See United States v. Esch, 832 F.2d 531, 542 (10th Cir. 1987), cert. denied, 485 U.S. 908 (1988). Neither transportation nor receipt, as defined by Section 2252, requires that the defendant participate in producing the pornography involved. On the other hand, an offense under Section 2252 requires proof that the defendant transported or received child pornography, while Section 2251 does not; Section 2251 requires only (a) that the defendant knew or had reason to know that the pornography would be transported in interstate or foreign commerce or mailed or (b) that, regardless of the defendant's knowledge, the pornography actually was transported or mailed. Although proof of the jurisdictional predicate for a conviction under Section 2251(a) may also provide part of the proof necessary for a conviction under Section 2252(a), "(t)he Blockburger test has nothing to do with the evidence presented at trial. It is concerned solely with the statutory elements of the offenses charged." Grady v. Corbin, 110 S. Ct. 2084, 2093 n.12 (1990). Thus, petitioner is mistaken in claiming that Congress did not mean to authorize separate convictions and punishments for producing child pornography and transporting or receiving it. 3. The remaining issue is whether the Double Jeopardy Clause prohibits successive prosecutions for these offenses. This case was decided, and the petition was filed, before this Court issued its decision in Grady v. Corbin, supra. However, the facts material to the analysis adopted in Grady are not in dispute. The reasoning of Grady does not prohibit successive prosecutions on the facts of this case. In Grady, the Court ruled that a prosecution for homicide and assault arising from an automobile collision was barred by the defendant's prior prosecutions for traffic offenses arising from the same collision. The Court noted that the second prosecution would not have been foreclosed by the Blockburger test. 110 S. Ct. at 2093. The Court held, however, in the context of the offenses at issue, that "the Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted." Id. at 2087; see id. at 2094. Because a bill of particulars demonstrated that the State would "prove the entirety of the conduct for which Corbin was convicted -- driving while intoxicated and failing to keep right of the median -- to establish essential elements of the homicide and assault offenses," the Court concluded that the subsequent prosecution was barred. Ibid. Grady's holding is inapplicable here. The jurisdictional predicate for the offenses charged in this case was established by proof that the photographs petitioner is charged with producing were "actually * * * mailed." 18 U.S.C. 2251(a). That requirement was satisfied without proving that petitioner received the materials. /3/ Thus, unlike Grady, this is not a case in which the government has relied upon "conduct that constitutes an offense for which (petitioner) has already been prosecuted" or "the entirety of the conduct for which (he) was convicted" to prove an offense in a subsequent prosecution. 110 S. Ct. at 2087, 2094 (emphasis added). /4/ The proof common to the offenses of which petitioner has been convicted in the successive prosecutions is limited to the fact that each batch of child pornography was transported through the mails. Thus, even judged by reference to the facts on which the successive convictions were based (as opposed to statutory elements), the offenses prosecuted in Tennessee -- receiving shipments of child pornography that had travelled through the mails -- are not included within the offenses prosecuted in this case -- producing pornography that was actually mailed. /5/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General THOMAS E. BOOTH Attorney JULY 1990 /1/ Section 2251(a) imposes specified penalties upon: Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, or who transports any minor in interstate or foreign commerce, or in any Territory or Possession of the United States, with the intent that such minor engage in any sexually explicit conduct for the purpose of producing any visual depiction of that conduct, * * * if such person knows or has reason to know that such visual depiction will be transported in interstate or foreign commerce or mailed, or if such visual depiction has actually been transported in interstate or foreign commerce or mailed. Section 2252(a) imposes specified penalties upon any person who: (1) knowingly transports or ships in interstate or foreign commerce by any means including by computer 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; or (2) knowingly receives, or distributes, any visual depiction that has been transported or shipped in interstate or foreign commerce by any means including by computer or mailed 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(.) Sections 2251(a) and 2252(a) have been amended since the commencement of the criminal activity involved in this case, but the amendments are not material to this case. The current version of the statutes is quoted. /2/ Quoting an excerpt from a 1977 conference committee report, petitioner contends that Congress meant to authorize only a single punishment in a case in which a defendant violates Sections 2251 and 2252. Pet. 15. The quoted passage is only an explanation of the resolution of a difference between penalty provisions in the House and Senate bills; it does not address the multiple punishment issue. See H.R. Conf. Rep. No. 811, 95th Cong., 1st Sess. (1977). /3/ With respect to the count charging that petitioner photographed the five-year-old children, there were two mailings that culminated in petitioner's receiving the prints. The film was mailed from Walgreens in Tennessee to a developer in Indiana, and the prints were mailed by the developer back to Walgreens, where petitioner picked them up. The government could establish that the photographs had "actually been * * * mailed" (18 U.S.C. 2251(a)) without referring to petitioner's receipt of them. Likewise, evidence that Tetramariner put the proof sheets and photographs of the 11 year-old in the mail would supply a sufficient predicate for petitioner's conviction on the count involving those materials. It is entirely immaterial, for purposes of the offense charged in this case, whether petitioner received them. This case involves a guilty plea -- and thus presents no issue as to what evidence might be received at a trial. In any event, however, the fact that evidence needed to show an actual mailing might go beyond what is required and prove an additional offense of which a defendant has been convicted does not raise any issue under the Double Jeopardy Clause. /4/ In this respect, Grady was similar to Brown v. Ohio, 432 U.S. 161 (1977), in which, as the Court in Garrett noted, "(e)very minute that (the defendant) drove or possessed the stolen automobile he was simultaneously committing both the lesser included misdemeanor and the greater felony." 471 U.S. at 789; see id. at 787 ("(e)very moment of his conduct was as relevant to the joyriding charge as it was to the auto theft charge"). In Garrett, the Court "caution(ed) against ready transposition of the 'lesser included offense' principles of double jeopardy from the classically simple situation presented in" a case such as Brown to cases involving an extended course of conduct, portions of which violate separate statutes. Id. at 789. /5/ The indictment in this case charged an actual mailing and the guilty plea was apparently based upon that theory (see Pet. App. B4; p. 4, supra). However, Grady would clearly not prohibit prosecution under the alternative jurisdictional theory permitted by Section 2251(a) -- i.e., that petitioner knew or had reason to know that the photographs would be transported in interstate commerce or mailed.