CHARLES JAMES THOMAS, PETITIONER V. UNITED STATES OF AMERICA No. 89-7208 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals, Pet. App., is reported at 893 F.2d 1066. JURISDICTION The judgment of the court of appeals was entered on January 10, 1990. The petition for a writ of certiorari was filed on April 9, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether 18 U.S.C. 2251(a) -- which prohibits engaging a minor "in any sexually explicit conduct for the purpose of producing any visual depiction of such conduct * * * if such person knows or has reason to know that such visual depiction will be transported in interstate or foreign commerce or mailed" -- applies to a United States citizen who filmed in a foreign country child pornography which he had reason to know would be transported in interstate commerce and by mail. STATEMENT After a jury trial in the United States District Court for the Southern District of California, petitioner was convicted of sexually exploiting children for the purpose of producing child pornography, in violation of 18 U.S.C. 2251(a) (count I); transporting child pornography in interstate and foreign commerce and through the mails, in violation of 18 U.S.C. 2252(a)(1) (count II); and receiving child pornography through the mails, in violation of 18 U.S.C. 2252(a)(2) (count III). Petitioner was sentenced to consecutive terms of 10 years' imprisonment on counts I and II and to a concurrent term of ten years' imprisonment on count III. The court of appeals affirmed. 1. The undisputed facts are summarized in the court of appeals' opinion. Pet. App. 1067-1068. In December 1986, a mail order photo developing company located in Maryland received through the mails several rolls of film for developing in an envelope bearing a San Ysidro, California, return address. Upon development, it appeared that the film contained photographs of a girl in her early adolescence -- approximately 13 years of age -- engaged in sexual acts with an adult male. The negatives and prints of the film were turned over to postal inspectors, who arranged for a controlled delivery of the photographs to the San Ysidro post office box listed as the return address. Petitioner was arrested when he picked up the photographs. Subsequent investigation linked petitioner to the making and mailing of the film, as well as to the receipt of the finished photographs. Thus, petitioner was readily identifiable as the adult male with whom the young girl was pictured engaging in sexual acts; pictures of petitioner's wife were interspersed with the pictures of petitioner and the young girl; a blanket that appeared in some of the pictures was found in petitioner's house; and petitioner was the registered renter of the post office box to which the film had been delivered. In a post-arrest statement, petitioner admitted sending the film to the photo processing company in Maryland for developing. Petitioner additionally admitted taking the photographs depicted on the film. Petitioner claimed, however, that he believed the girl to have been 19 or 20 years old and that he had taken the photographs while in Mexico. See Def. C.A. Br. 6-7. 2. The court of appeals affirmed petitioner's convictions. Pet. App. In particular, the court held that 18 U.S.C. 2251(a), which proscribes the sexual exploitation of a minor for the purpose of producing "any visual depiction" of a "minor engag(ing) in any sexually explicit conduct," applied to petitioner, even if he took the photographs of the minor girl while in Mexico. Pet. App. 1068-1069. Although "Section 2251(a) does not explicitly state that it applies to conduct outside the United States," the court stated that Congress's intention to give it extraterritorial reach could be inferred. Id. at 1068. The court explained that Section 2251(a) was part of "a comprehensive statutory scheme to eradicate sexual exploitation of children." Ibid. "Punishing the creation of child pornography outside the United States that is actually, is intended to be, or may reasonably be expected to be transported in interstate or foreign commerce() is an important enforcement tool." Id. at 1069 (footnote omitted). /1/ In light of this, the court concluded that, in enacting Section 2251(a), "Congress intended to reach extraterritorial acts that otherwise satisf(ied) the statutory terms." Ibid. ARGUMENT Petitioner does not dispute that he produced, mailed, and received through the mail photographs of a minor engaged in explicit sexual conduct. Nor does he dispute the validity of his convictions on counts II and III for sending and receiving such photographs in interstate commerce and through the mails. Petitioner instead argues that his conviction on count I for taking the pornographic photographs was improper because the filming took place in Mexico and was therefore beyond the territorial reach of Section 2251(a). Petitioner's claim was correctly rejected by the court of appeals. 1. "There is no constitutional bar to the extraterritorial application of penal laws." Chua Han Mow v. United States, 730 F.2d 1308, 1311 (9th Cir. 1984), cert. denied, 470 U.S. 1031 (1985). As this Court has made clear, whether criminal laws apply to acts committed abroad is a matter of "statutory construction" that "depends upon the purpose of Congress as evinced by the description and the nature of the crime." United States v. Bowman, 260 U.S. 94, 97-98 (1922). See Blackmer v. United States, 284 U.S. 421, 437 (1932). Accordingly, this Court in Bowman recognized that some offenses "are such that to limit their locus to the strictly territorial jurisdiction would be greatly to curtail the scope and usefulness of the statute and leave open a large immunity for (crimes) as easily committed on the high seas and in foreign countries as at home." 260 U.S. at 98. In such circumstances, Congress's intent to apply a criminal statute to conduct originating outside the United States may "be inferred from the nature of the offense." Ibid. Following the foregoing analysis, this Court has readily applied criminal statutes extraterritorially despite the absence of an express congressional directive to do so. See Blackmer v. United States, 284 U.S. at 436-438 (criminal contempt prosecution based on failure of United States citizen living abroad to comply with a subpoena); United States v. Bowman, 260 U.S. at 97-98 (prosecution for conspiratorial activities undertaken abroad to defraud a corporation owned by the United States government). See also United States v. Layton, 855 F.2d 1388, 1394-1396 (9th Cir. 1988), cert. denied, 109 S. Ct. 1178 (1989); United States v. Walczak, 783 F.2d 852, 854 (9th Cir 1986); United States v. Aquilar, 756 F.2d 1418, 1424-1425 (9th Cir. 1985). Moreover, as this Court has noted, the case for applying a statute extraterritorially is especially strong with respect to "(a)cts done outside a jurisdiction, but intended to produce and producing detrimental effects within it." Strassheim v. Daily, 221 U.S. 280, 285 (1911). See United States v. Wright-Barker, 784 F.2d 161, 166-168 (3d Cir. 1986) (Congress intended extraterritorial application of drug laws "as part of its continuing effort to contain the evils caused on American soil by foreign as well as domestic suppliers of illegal narcotics"); Chua Han Mow v. United States, 730 F.2d at 1311-1312 (same); United States v. Arra, 630 F.2d 836, 839-840 (1st Cir. 1980) (same); United States v. Baker, 609 F.2d 134, 136-139 (5th Cir. 1980) (same). 2. Congress should be understood to have intended the application of Section 2251(a) to activities occurring aborad. Much like the Nation's anti-drug laws, Section 2251(a) is part of a "comprehensive statutory scheme (designed) to eradicate (the) sexual exploitation of children" by "proscrib(ing) the transportation, mailing, and receipt of child pornography." Pet. App. 1068-1069. Section 2251(a) does not simply proscribe the sexual exploitation of minors or the making of visual depictions of minors engaging in sexual acts. Instead, its penalties are triggered by accessing the market for child pornography in the United States. Congress was undoubtedly aware that child pornography produced abroad is frequently imported into the United States. Cf. United States v. Moncini, 882 F.2d 401 (9th Cir. 1989). Thus, in prohibiting the sexual exploitation of minors, Congress required both that exploitation be undertaken "for the purpose of producing (a) visual depiction of such conduct" and that such visual depiction actually be "transported in interstate or foreign commerce of mailed" or that the offender have "reason to know" that it will be so "transported * * * or mailed." (Emphasis added.) Congress thus imposed criminal liability for extraterritorial production of child pornography if the producer intended that such pornography would be transported in interstate or foreign commerce or mailed. As the court of appeals observed, "(p)unishing the creation of child pornography outside the United States that actually is intended to be, or may reasonably be expected to be transported in interstate or foreign commerce() is an important enforcement tool." Id. at 1069. Here, it is beyond dispute that petitioner, a United States citizen, engaged a minor in "sexually explicit conduct for the purpose of producing a visual depiction of such conduct" and thereafter mailed it in interstate commerce. In short, petitioner's activities in Mexico were inextricably related to the eventual production and transportation within the United States of sexually explicit depictions of a minor. His extraterritorial conduct therefore both "produc(ed) detrimental effects within (the United States)," Strassheim v. Daily, 221 U.S. at 285, and would, if unprosecutable, "greatly curtail the scope and usefulness" of a comprehensive statutory scheme directed at eliminating a great social ill, United States v. Bowman, 260 U.S. at 98. The United States therefore had jurisdiction to prosecute petitioner under Section 2251(a) for taking sexually explicit photographs of a minor while in Mexico. /2/ 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 ROBERT J. ERICKSON Attorney JUNE 1990 /1/ As the court of appeals observed, the term "foreign commerce" means "commerce between the United States and a foreign nation." Ibid. /2/ It is questionable whether petitioner's "produc(tion)" of child pornography occurred wholly outside the United States in any event. Because "producing" is defined broadly to include "manufacturing" and "publishing," 18 U.S.C. 2256(3), petitioner was still engaged in the production of child pornography at the time he submitted the film to the processing company in Maryland for development and printing. The production of child pornography was thus a continuing offense while petitioner was in the United States and was thus plainly subject to her criminal laws. Contrary to petitioner's argument, Pet. 4, the court of appeals' holding does not confer jurisdiction on the federal government to prosecute "a crime against private individuals * * * which affects (only) the 'peace and order of the (foreign) community.'" For example, there is nothing in the court of appeals' decision to intimate that Section 2251(a) applies to persons abroad who engage in sexual conduct with minors or who take photographs of such conduct. Under the court's decision, Section 2251(a) is subject to extraterritorial application only when the offender knows or has reason to know that the filmed fruits of his sexual exploitation of a minor will be transported in interstate or foreign commerce or be mailed. Thus, a child pornographer abroad, who intends that fruits of his illicit works will be introduced into the United States, stands on no different ground than the drug trafficker abroad, who intends that his drugs will be introduced into the domestic market: each may be prosecuted for conduct outside the United States because it will have detrimental consequences within.