MICHAEL ARVIN, PETITIONER V. UNITED STATES OF AMERICA No. 90-488 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 Ninth Circuit Brief For The United States In Opposition TABLE OF CONTENTS Questions Presented Opinion below Jurisdiction Statement Argument Conclusion OPINION BELOW The opinion of the court of appeals (Pet. App. 1A-35A) is reported at 900 F.2d 1385. JURISDICTION The judgment of the court of appeals was entered on April 12, 1990, and a petition for rehearing was denied on June 25, 1990. Pet. App. 36A. The petition for a writ of certiorari was filed on July 26, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the First Amendment requires that the constitutional analysis applicable to obscene materials be applied to child pornography. 2. Whether, in this prosecution for mailing lascivious photographs of a minor in violation of 18 U.S.C. 2252(a), the district court erred in refusing to permit expert testimony on the meaning of the term "lascivious." 3. Whether the district court denied the jury sufficient guidance on the question whether the pictures depicted "a minor engaging in sexually explicit conduct." 4. Whether the district court erred when it noted that the pictures at issue in this case obviously involved the subjects' genitals and pubic area. 5. Whether the jury instructions properly informed the jury about how to determine whether the photographs were lascivious. 6. Whether petitioner's three-year sentence violates the Eighth Amendment. STATEMENT Following a jury trial in the United States District Court for the Northern District of California, petitioner was convicted on two counts of mailing photographs of minor females engaged in sexually explicit conduct, in violation of 18 U.S.C. 2252(a)(1). He was sentenced to three years' imprisonment on Count 1, to be followed by a three-year term of probation on Count 2. The court of appeals affirmed. Pet. App. 1a-35a. 1. In April and May 1986, petitioner mailed first one and then two photocopied photographs of nude young girls to undercover officer Jeffrey Miller. The mailings were in response to an advertisement placed by Miller in Swinger's Digest seeking a pedophile correspondent. Pet. App. 7A-8A. The photocopies were of pictures petitioner had purchased several years earlier. All three showed apparently prepubescent girls, completely nude, facing the camera with their legs apart exposing their genitals. The three pictures were captioned "Lolita-Sex," "Skoleborn-School Children," and "Little Girls F--k too." Id. at 8A. 2. A two-count indictment was returned on August 22, 1986, charging petitioner with violating 18 U.S.C. 2252(a). That provision prohibits the mailing of a visual depiction of a minor engaging in "sexually explicit conduct," which is defined to include the "lascivious exhibition of the genitals or pubic area." 18 U.S.C. 2256(2). The district court granted the government's motion in limine to exclude expert testimony on the question whether the pictures were "lascivious." Because petitioner stipulated that he knowingly mailed the photocopied photographs, the evidence at trial consisted primarily of the pictures themselves. Pet. App. 7A-9A. The jury was instructed that the offense consisted of four elements: (1) knowing mailing (2) of a visual depiction (3) that involves the use of a minor (4) and includes the lascivious exhibition of the genitals and pubic area. Pet. App. 28A n.4. /1/ The jury was told that it must decide whether the pictures were "lascivious," and that the courts have "generally held that the word lascivious is virtually interchangeable with the word 'lewd.'" Id. at 29A n.4. The jury also was given a list of eight factors -- drawn from the case law, especially United States v. Dost, 636 F. Supp. 828, 831 (S.D. Cal. 1986), aff'd sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir.), cert. denied, 484 U.S. 856 (1987) -- to guide it in determining whether the poses were lascivious, although it was told that "the weight or lack of weight which you give to any of those factors is for you to decide." Pet. App. 29A-30A n.4. /2/ Finally, the jury was cautioned that the pictures "may not be found to be lascivious merely because you may not like them or because you may find them to be in bad taste." Id. at 30A n.4. The jury found petitioner guilty on both counts. 3. The court of appeals affirmed petitioner's convictions. Pet. App. 1A-35A. It rejected his argument that the indictment should have been dismissed because the pictures were not mailed for a commercial purpose, because he was not engaged in distribution, and because the pictures were not lascivious as a matter of law. The court noted that Congress had amended the statute in 1984 to eliminate the previous requirement of a commercial purpose; that any mailing is covered by the statute; and that the question whether the pictures were lascivious was properly left to the jury to decide. Id. at 13A-14A & n.2, 16A-18A. The court of appeals rejected petitioner's contention that he should have been permitted to adduce expert testimony on the meaning of "lascivious," on the supposed educational uses of such photographs, and on the terms "community standards," "prurient interest" and "patent offensiveness." Pet. App. 18A-26A. Following its prior decisions in United States v. Wiegand, 812 F.2d at 1243-1244, and United States v. Langford, 802 F.2d 1176, 1179-1180 (9th Cir. 1986), cert. denied, 483 U.S. 1008 (1987), the court of appeals held that the term "lascivious" is a "commonsensical term" on which expert testimony is unnecessary and, indeed, could usurp the function of the jury. Pet. App. 21A-22A, 24A-25A. Moreover, because Congress prohibited the use of minors in the depiction of "sexually explicit conduct" even when the depictions are not "obscene" under Miller v. California, 413 U.S. 15 (1973), the court held that expert testimony regarding the terms "redeeming value," "prurient interest," and "community standards" would have been irrelevant to the jury's deliberations. Pet. App. 11A-13A, 22A-23A, 25A-26A. Finally, the court of appeals held that the jury instructions, taken as a whole, properly guided the jury in determining whether the pictures were "lascivious" by informing the jury that "lascivious" meant much the same thing as "lewd"; by identifying factors for the jury to consider, while at the same time instructing the jury that it must determine the weight to be given to each of the factors; and by admonishing the jury not to rely on its own feeling that the pictures were in bad taste. Pet. App. 27A-34A. In fact, the court concluded that "the jurors were told about as well as any jurors could be what they should consider in making a determination as to whether the pictures were lascivious." Id. at 34A. ARGUMENT 1. Petitioner argues (Pet. 19-23) that his convictions violate the First Amendment because, in his view, a prosecution for child pornography requires consideration of "community standards," "prurient interest," and the possible "scientific and other value" of the pictures. The court of appeals correctly rejected this contention. In New York v. Ferber, 458 U.S. 747 (1982), this Court sustained a state statute prohibiting persons from knowingly promoting sexual performances by children under the age of 16 by distributing materials depicting such performances, even though the depictions were not "obscene" under the test articulated in Miller v. California, 413 U.S. 15 (1973). Ferber distinguished the statutes involved in obscenity cases from a statute designed to protect children against the physical or psychological abuse entailed when they are used to create depictions of sexually explicit conduct. 458 U.S. at 753-766. The Court held that material depicting the sexual exploitation of children is not entitled to First Amendment protection in light of the compelling state interest in protecting children from such abuse. Id. at 764; see also Osborne v. Ohio, 110 S. Ct. 1691, 1696-1697, 1698 (1990). Accordingly, Ferber held that the Miller obscenity test does not apply to child pornography laws in the following respects: "A trier of fact need not find that the material appeals to the prurient interest of the average person; it is not required that sexual conduct portrayed be done so in a patently offensive manner; and the material at issue need not be considered as a whole." 458 U.S. at 764. Congress enacted 18 U.S.C. 2252 in its current form in response to Ferber. As the court of appeals pointed out, Pet. App. 13A-15A, Congress amended the prior version of the statute to eliminate any requirement of a commercial purpose, to raise the age of minority from 16 to 18, and to penalize the mailing of depictions consisting of the "lascivious exhibition of the genitals or pubic area." 18 U.S.C. 2256(2)(E). The last of these changes was made for the specific purpose of providing that "an exhibition of a child's genitals does not have to meet the obscenity standard to be unlawful." 130 Cong. Rec. 7196 (1984) (remarks of Sen. Specter); see Pet. App. 14A-15A. The courts of appeals have uniformly agreed that the obscenity-related inquiry into "community standards," "prurient interest," and "redeeming value" is not required by 18 U.S.C. 2252 and that the statute, as so construed, does not violate the First Amendment. See United States v. Freeman, 808 F.2d 1290, 1291-1292 (8th Cir.), cert. denied, 480 U.S. 922 (1987); United States v. Wiegand, 812 F.2d at 1243-1245; United States v. Rubio, 834 F.2d 442, 447-448, 451-452 (5th Cir. 1987); United States v. Villard, 885 F.2d 117, 121-122 (3d Cir. 1989); see also United States v. Wolf, 890 F.2d 241, 243 n.2 (10th Cir. 1989). This issue therefore does not warrant review. 2. Petitioner argues (Pet. 13-23) that he should have been permitted to adduce expert testimony on the meaning of the term "lascivious" as well as the terms "community standards," "prurient interest" and "redeeming value." Expert testimony was not required on the latter issues because, as just explained, they are not elements of the offense, as a matter either of statutory construction or constitutional law. Moreover, Fed. R. Evid. 702 provides that if scientific, technical or other specialized knowledge will "assist the trier of fact," a witness qualified as an expert "may" testify thereto. "Whether the situation is a proper one for the use of expert testimony is to be determined on the basis of assisting the trier." Advisory Committee note to Rule 702. This Court has held that a trial court has broad discretion in deciding whether to admit or exclude expert testimony. See Hamling v. United States, 418 U.S. 87, 108, 124-125 (1984); see also, e.g., United States v. Ladd, 885 F.2d 954, 959 (1st Cir. 1989); United States v. Tutino, 883 F.2d 1125, 1134 (2d Cir. 1989), cert. denied, 110 S. Ct. 1139 (1990). The district court did not abuse its discretion in concluding that the jury was not in need of any expert assistance in this case. "Lascivious" has a plain English meaning, and it would have supplanted the function of the jury if an expert had purported to testify on the question whether the pictures met that definition. Compare Salem v. United States Lines Co., 370 U.S. 31, 35-36 (1962). 3. Also without merit is petitioner's argument (Pet. 14-19, 24-25) that the district court's jury instructions and its exclusion of expert testimony deprived the jury of guidance on an essential element of the offense -- namely, that the pictures depicted "a minor engaging in sexually explicit conduct." The statute punishes "(a)ny person who * * * knowingly * * * 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 * * * ." 18 U.S.C. 2252(a)(1). "(S)exually explicit conduct" is defined to include, inter alia, "lascivious exhibition of the genitals or pubic area of any person." 18 U.S.C. 2256(2). The jury was instructed that it must find that each of the pictures showed "the use of a minor" and "the lascivious exhibition of the genitals or pubic areas." Pet. App. 28A n.4. The instructions thus incorporated the statutory definition of the phrase "sexually explicit conduct" in explaining the statutory element that the minor be depicted "engaging in sexually explicit conduct." The instructions therefore required the jury to find that the pictures showed a minor engaging in such conduct. And for the reasons stated in point 2, supra, expert testimony was not needed on that issue. 4. Petitioner next argues (Pet. 25-29) that the jury instructions improperly shifted the burden of proof on an element of the offense. The burden-shifting occurred, he argues, because in stating that the pictures must show "lascivious exhibition of the genitals or pubic areas," the district court commented: "(w)hen you see the photographs, it is obvious that they do involve the genitals and pubic area." Petitioner concedes (Pet. 28) that he failed to object to this statement at trial, and it therefore could furnish the basis for reversal only if it constituted plain error. Fed. R. Crim. P. 52(b). The court's observation clearly did not rise to that level, since that aspect of the case was not in dispute: petitioner admitted mailing the pictures, which were admitted into evidence and spoke for themselves, and no juror examining the pictures could possibly have failed to notice that they showed the genitals or pubic area. It was left to the jury, of course, to determine the only disputed question: whether the pictures were lascivious. 5. Petitioner next argues (Pet. 29-34) that the jury instructions failed to furnish sufficient guidance on whether the pictures were lascivious. Specifically, he argues that the instructions improperly allowed the jury to conclude that the pictures were lascivious simply because one of the listed factors -- for example, nudity -- was present. Petitioner ignores the import of the instructions as a whole. the jury was instructed that it must find the pictures to be lascivious and that courts have regarded that term as essentially synonymous with "lewd"; it was given eight factors, drawn from United States v. Dost, supra, and approved by other courts, to consider; and it was admonished that "the weight or lack of weight which you give to any one of those factors is for you to decide." Pet. App. 30A n.4. Taken as a whole, Cupp v. Naughten, 414 U.S. 141, 146-147 (1973), the instructions were proper, and they have been followed by other courts. See United States v. Wolf, 890 F.2d at at 244-247; United States v. Villard, 885 F.2d at 122; cf. United States v. Nolan, 818 F.2d 1015, 1019 n.5 (1st Cir. 1987) (reciting Dost factors). 6. Finally, petitioner argues (Pet. 35-43) that his sentence of three years' imprisonment violates the Eighth Amendment because it is disproportionate to his offense. Although petitioner raised this issue below (see C.A. Br. 30-33), the court of appeals found it unnecessary to address it. Petitioner's argument is, in any event, without merit. In Solem v. Helm, 463 U.S. 277 (1983), upon which petitioner relies, the Court held that a life sentence without possibility of parole for the offense of uttering a "no account" check for $100 violated the Eighth Amendment. The Court stressed, however, that a sentence may be set aside under the Eighth Amendment only if it is "significantly disproportionate" to the crime, id. at 303, and it observed that successful challenges to the proportionality of particular sentences will be "exceedingly rare." Id. at 290 n.16. The Court also furnished some guidance for evaluating such claims, explaining that "a court's proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions." Id. at 292. Petitioner concedes (Pet. 39) that his offense is a "serious crime." Moreover, his three-year sentence is wholly different from the life sentence without possibility of parole at issue in Solem v. Helm. It also is well within the statutory maximum penalty of ten years, which manifests the seriousness with which Congress regards an offense that involves the sexual exploitation of children, and reflects what this Court has recognized to be the compelling public interest in preventing such exploitation and continuing trade in the products of such exploitation. Osborne v. Ohio, 110 S. Ct. at 1695-1697; Ferber, 458 U.S. at 756-762. Finally, petitioner's sentence corresponds to the sentence of 3.1 years that one court characterized as the national average of pre-guideline sentences for all offenses under Section 2252. See United States v. Freeman, 663 F. Supp. 73, 74 (E.D. Ark. 1987). /3/ For the foregoing reasons, this case does not remotely resemble one of those "exceedingly rare" cases in which the sentence is so grossly disproportionate to the offense as to violate the Eighth Amendment under the framework of Solem v. Helm. /4/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General RICHARD A. FRIEDMAN Attorney NOVEMBER 1990 /1/ The relevant jury instructions are reproduced in full in footnote 4 of the court of appeals' opinion, Pet. App. 28A-30A. /2/ The factors included (1) the focal point of the picture on the genitals, (2) a sexually suggestive setting, (3) depiction of the child in an unnatural pose, (4) the dress or nudity of the child, (5) a suggestion of sexual receptiveness, (6) the intent of the pictures to elicit a sexual response from the viewer, (7) portrayal of the child as a sexual object, and (8) captions on the pictures. Pet. App. 29A-30A n.4. /3/ Although petitioner cites (Pet. 40-41) one case in which the defendant received a suspended sentence for violating Section 2252, far more than one case in which a lesser sentence was imposed would be necessary to establish an Eighth Amendment violation. There are, moreover, other cases in which more severe sentences have been sustained. See, e.g., United States v. Andersson, 803 F.2d 903 (7th Cir. 1986) (12 years' imprisonment, although conduct was more serious), cert. denied, 479 U.S. 1069 (1987). Under the Sentencing Guidelines, the base offense level for any violation of Section 2252 is 13, with a two-level enhancement when the offense involves a picture of a prepubescent minor, as in this case. Sentencing Guidelines 2G2.2(a), (b)(1). The sentencing range for base offense level 15, for the lowest criminal history category, is 18-24 months' nonparolable imprisonment. Sentencing Guidelines Section 5A (Table). Petitioner's sentence of three years' imprisonment, for which he will be eligible for parole after serving 12 months, less goodtime credits (see 18 U.S.C. 4205 (1982)), is likely to be even less severe than the Guideline sentence that would have applied if his offense had occurred after November 1, 1987. /4/ Because this case does not begin to approach the sort of disproportionality necessary to state an Eighth Amendment violation, there is no need to hold the petition in this case pending the disposition of Harmelin v. Michigan, petition for cert. granted, No. 89-7272 (argued Nov. 5, 1990). Harmelin, like Solem v. Helm, involves a life sentence without possibility of parole, a sentence wholly different from the three-year term petitioner received.