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United States v. Pearson

United States District Court, D. Minnesota

October 18, 2017

United States of America, Plaintiff,
v.
Shane Joshua Pearson, Defendant.

          Katharine T. Buzicky, Assistant United States Attorney, United States Attorney's Office, and Robert M. Lewis, Assistant United States Attorney, United States Attorney's Office, (for the Government)

          Kurt B. Glaser, Smith & Glaser, LLC, (for Defendant).

          REPORT & RECOMMENDATION

          Tony N. Leung United States Magistrate Judge

         This matter is before the Court, United States Magistrate Judge Tony N. Leung, on Defendant Shane Joshua Pearson's Motion to Dismiss Indictment (ECF No. 31) and Motion to Suppress Evidence (ECF No. 37). These motions have been referred to the undersigned for a report and recommendation to the district court, the Honorable Joan N. Ericksen, District Judge of the United States District Court for the District of Minnesota, under 28 U.S.C. § 636 and D. Minn. LR 72.1.

         A hearing was held on August 21, 2017. Assistant United States Attorneys Katharine T. Buzicky and Robert M. Lewis appeared on behalf of the United States of America (the “Government”). Attorney Kurt B. Glaser appeared on behalf of Defendant. The Court ordered the Government to provide complete copies of the search warrants and 18 U.S.C. § 2703(d) orders at issue in Defendant's motion to suppress. (ECF No. 45; see ECF Nos. 47, 47-1 through 47-5, 48.) Post-hearing briefing is now complete and these motions are ripe for a determination by the Court.

         I. INTRODUCTION

         Defendant is a self-described nudist. (See, e.g., Mot. to Dismiss Indictment at 1, ECF No. 31; Mot. to Suppress Evidence at 2, ECF No. 37; Def.'s Suppl. Pretrial Mem. at 30, ECF No. 49.) Defendant “operated a website selling nudist publications and videos.” (Mot. to Dismiss Indictment at 1; see Mot. to Suppress Evidence at 2 (“He openly sold nudist materials from his website on the Internet.”) Some of these materials included images of children.

         Defendant has been indicted on eight counts related to material involving the sexual exploitation of minors: one count of advertising child pornography in violation of 18 U.S.C. §§ 2251(d)(1)(A) and (e); three counts of distributing child pornography in violation of 18 U.S.C. §§ 2252(a)(2) and (b)(1); three counts of concealment money laundering in violation of 18 U.S.C. §§ 1956(a)(1)(B) and 2; and one count of conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h). (Indictment at 1-5, ECF No. 1.) The child-pornography counts include both images and videos, which the Court will collectively refer to as “images” unless otherwise specified.

         II. MOTION TO DISMISS INDICTMENT

         Defendant moves to dismiss the Indictment on grounds that the images charged do not constitute child pornography as a matter of law and seeks to examine the grand jury proceedings, arguing the grand jury was shown images out of context. (Mot. to Dismiss Indictment at 2-4.) In addition, Defendant raises several constitutional challenges both facially and as applied to the statues under which he has been charged, arguing that they are void for vagueness and overbreadth, violate his rights to procedural and substantive due process, and violate his First Amendment rights and the mandatory minimum sentences they carry violate the Eighth Amendment. (Mot. to Dismiss Indictment at 4-8.) “The indictment . . . must be a plain, concise, and definite written statement of the essential facts constituting the offense charged . . . .” Fed. R. Crim. P. 7(c)(1). “An indictment is constitutionally sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.” United States v. Nabors, 45 F.3d 238, 239 (8th Cir. 1995) (quotation omitted). “Indictments are normally sufficient unless no reasonable construction can be said to charge the offense.” Id. at 240 (quotation omitted).

         A. Nature of the Images

         Defendant's focus is not the sufficiency of the Indictment.[1] Rather, he contends that the images charged do not involve sexually explicit conduct, namely, the lascivious exhibition of genitals. See 18 U.S.C. § 2256(2)(A)(v) (defining “sexually explicit conduct” to include “lascivious exhibition of the genitals or pubic area of any person”). So long as an indictment is facially sufficient, “federal criminal procedure does not provide for a pre-trial determination of sufficiency of the evidence.” United States v. Ferro, 252 F.3d 964, 968 (8th Cir. 2001) (quotation omitted). At this juncture, it is not procedurally proper for the Court to consider Defendant's challenge to the sufficiency of the evidence. See United States v. Edge, No. 14-cv-201 (MJD/TNL), 2014 WL 7685530, at *5 (D. Minn. Nov. 3, 2014) (determination of whether videos identified in indictment constituted child pornography was not appropriate on motion to dismiss), adopting report and recommendation, 2015 WL 317366 (D. Minn. Jan. 25, 2015).

         While the question of whether the images “depict ‘lascivious exhibition of the genitals, ' an element of the crime, is for the finder of fact[, ] . . . the meaning of ‘lascivious exhibition of the genitals' is an issue of law.” United States v. Rayl, 270 F.3d 709, 714 (8th Cir. 2001). Partly because of First-Amendment concerns, the Eighth Circuit Court of Appeals has established a procedure to address whether the images depict sexually explicit conduct as a matter of law-the very argument Defendant makes here. See Rayl, 270 F.3d at 714; Judicial Committee on Model Jury Instructions for the Eighth Circuit, Manual of Model Criminal Jury Instructions for the District Courts of the Eighth Circuit 6.18.2252A (2014) [hereinafter “Model Crim. Jury Instr. 6.18.2252A”]. Before submitting the images to the jury, the district court “should conduct a preliminary review of whether materials offered by the government . . . depict sexually explicit conduct as a matter of law.” Rayl, 270 F.3d at 714; Model Crim. Jury Instr. 6.18.2252A.

         In a similar vein, Defendant argues that the images depict mere nakedness and none of the factors set forth in United States v. Dost, 636 F.Supp. 828 (S.D. Cal. 1986), is present. Defendant is correct that “more than mere nudity is required before an image can qualify as ‘lascivious.'” United States v. Kemmerling, 285 F.3d 644, 645-46 (8th Cir. 2002); see, e.g., United States v. Lohse, 797 F.3d 515, 520 (8th Cir. 2015); United States v. Johnson, 639 F.3d 433, 439 (8th Cir. 2011); United States v. Wallenfang, 568 F.3d 649, 657 (8th Cir. 2009); United States v. Horn, 187 F.3d 781, 789 (8th Cir. 1999). The Eighth Circuit has cited the Dost factors with approval as a nonexclusive list of factors to be considered in deciding whether an image is lascivious. Lohse, 797 F.3d at 520-21; Johnson, 639 F.3d at 439-40; Wallenfang, 568 F.3d at 657; Horn, 187 F.3d at 789; see Model Crim. Jury Instr. 6.18.2252A.

The Dost factors include: (1) whether the focal point of the image is on the minor's genital or pubic area; (2) whether the setting of the image is sexually suggestive; (3) whether the minor is depicted in unnatural poses or inappropriate attire considering the minor's age; (4) whether the minor is fully or partially clothed or is nude; (5) whether the image suggests sexual coyness or a willingness to engage in sexual activity; and (6) whether the image is intended to elicit a sexual response in the viewer.

Lohse, 797 F.3d at 520 (citing 636 F.Supp. at 832); see Model Crim. Jury Instr. 6.18.2252A (adding additional factors of “whether the picture portrays the minor as a sexual object” and “the caption(s) on the pictures”). Following preliminary review by the district court, it will be up to the finder of fact to determine whether the images charged are lascivious. Rayl, 270 F.3d at 714; Kemmerling, 285 F.3d at 646. Defendant's arguments about the character and context of the images are essentially arguments for trial, not for dismissal of the Indictment. See Fed. R. Crim. P. 12(b)(1) (“A party may raise by pretrial motion any defense, objection, or rest that the court can determine without a trial on the merits.”).

         B. Constitutional Arguments

         Defendant also raises a number of constitutional arguments. First, Defendant argues that the 15-year mandatory minimum for violations of 18 U.S.C. § 2251 and 5-year mandatory minimum for violations of 18 U.S.C. § 2252 violate the Eighth Amendment facially and are grossly disproportionate to this case as applied. But, as the Government points out, any as-applied challenge is not ripe as Defendant has not been convicted and sentenced under either statute. Moreover, the Eighth Circuit has repeatedly stated that it has “has never held that a sentence within the statutory range violates the Eighth Amendment.” United States v. Neadeau, 639 F.3d 453, 456 (8th Cir. 2011) (citing United States v. Collins, 340 F.3d 672, 680 (8th Cir. 2013)); see, e.g., United States v. Shelabarger, 770 F.3d 714, 717 (8th Cir. 2014) (17 years 6 months' imprisonment for violation of 18 U.S.C. § 2252(a)(2) did not violate Eighth Amendment); United States v. Vanhorn, 740 F.3d 1166, 1169-70 (8th Cir. 2014) (18 years 4 months' imprisonment for violations of 18 U.S.C. § 2251(a), (e) did not violate Eighth Amendment); United States v. Patten, 664 F.3d 247, 251-52 (8th Cir. 2011) (40 years' imprisonment for violations of 18 U.S.C. §§ 2251(a), (e), 2252A(a)(5)(B), (b)(2) did not violate Eighth Amendment); see also United States v. Reingold, 731 F.3d 204, 221 (2d Cir. 2013) (“Our sister circuits have similarly rejected Eighth Amendment challenges to mandatory minimum sentences in child pornography or exploitation cases.”) (collecting cases).

         Second, Defendant asserts that 18 U.S.C. §§ 2251, 2252, and 2256 violate the First, Fourth, Fifth, and Sixth Amendments. In his motion to dismiss, Defendant did not specifically discuss any of the statutes or cite to any authority. At the hearing, Defendant agreed to be more specific with his arguments in supplemental briefing. In supplemental briefing, Defendant raises the following distinct arguments: the Court should review the grand jury proceedings because of the First-Amendment implications and 18 U.S.C. § 2256(2)(A)(v) (“lascivious exhibition of the genitals or pubic area of any person”) is void for vagueness and overbreadth.

         Defendant argues that this Court should conduct a review of the evidence submitted to the grand jury because First-Amendment-protected speech may have been submitted to the grand jury, citing state court cases from Massachusetts and New Mexico where courts examined materials presented to grand juries to determine whether the images fell outside the bounds of the First Amendment. The procedure established by the Eighth Circuit in Rayl is designed to address Defendant's argument that the charged images are protected by the First Amendment and not within the meaning of “lascivious exhibition of the genitals” as a matter of law. Rayl expressly recognized the First-Amendment implications. 270 F.3d at 714. While Defendant argues that the circumstances of this case “demand more than a Rayl hearing, ” none of the circumstances Defendant identifies alters the thrust of his argument-that the charged images are legal as a matter of law-or bears on the ultimate legal question of whether the charged images are within the meaning of 18 U.S.C. § 2256(2)(A)(v).

         Furthermore, “[i]t has long been settled that an indictment is not open to challenge on the ground that there was inadequate or insufficient evidence before the grand jury.” United States v. Nelson, 165 F.3d 1180, 1182 (8th Cir. 1999). “[A] grand jury may indict on whatever evidence is laid before it, even evidence that would be inadmissible at trial.” United States v. Wilkinson, 124 F.3d 971, 977 (8th Cir. 1997); see United States v. Roach, 28 F.3d 729, 739 (8th Cir. 1994) (“[A]n indictment returned by a legally established and unbiased grand jury ‘is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence.'”) (quoting United States v. Calandra, 414 U.S. 338, 345 (1974)). Thus, to the extent that Defendant argues the images placed before the grand jury were not properly contextualized and such context shows that images are not lascivious, these are arguments to be made at trial.

         Defendant next argues that 18 U.S.C. § 2256(2)(A)(v) is overbroad and void for vagueness. “[A] statute is facially invalid [under the First-Amendment overbreadth doctrine] if it prohibits a substantial amount of protected speech.” United States v. Williams, 553 U.S. 285, 292 (2008). “Invalidation for overbreadth is strong medicine that is not to be casually employed.” Id. at 293 (quotation omitted). According to Defendant, “[t]he manner of the government's prosecution against him is an assault on all nudists, their publications and their way of life.” (Def.'s Suppl. Pretrial Mem. at 37.) Without any details or examples, Defendant asserts that “a number of nudist website[s] have closed in fear of similar action from the government.” (Def.'s Suppl. Pretrial Mem. at 37.)

         Section 2256(2)(A)(v) does not encompass all nude depictions of children, only those that are lascivious. See United States v. Knox, 32 F.3d 733, 752 (3d Cir. 1994) (“A visual depiction of a child subject's genitals or pubic area . . . must be lascivious in order to be proscribed.”); United States v. Thomson, No. CR99-0020, 1999 WL 33656538, at *2 (N.D. Ia. Apr. 28, 1999) (statute proscribing the possession of child pornography was not facially overboard because the “visual depiction of the subject's genitals must be ‘lascivious' in order to be proscribed”); see also Williams, 553 U.S. at 301. In United States v. X-Citement Video, Inc., the Supreme Court rejected an overbreadth challenge to the use of “the term ‘lascivious' in defining illegal exhibition of the genitals of children” for the reasons articulated by the Ninth Circuit Court of Appeals in the underlying appeal. 513 U.S. 64, 78-79 (1994). The Ninth Circuit held that the term “lascivious” was no different than the term “lewd, ” “a commonsensical term whose constitutionality was specifically upheld in Miller v. California [413 U.S. 15 (1973)] and [New York v.] Ferber, [458 U.S. 747 (1982)].” United States v. X-Citement Video, Inc., 982 F.2d 1285, 1288 (9th Cir. 1992) (quotation omitted) (relying on United States v. Wiegand, 812 F.2d 1239, 1243 (9th Cir. 1987)). Courts have continued to reject overbreadth challenges to 18 U.S.C. § 2256(2)(A)(v). See, e.g., United States v. Adams, 343 F.3d 1024, 1034-35 (9th Cir. 2003); United States v. Genin, 594 F.Supp.2d 412, 420 n.3 (S.D. N.Y. 2009); see also United States v. Price, 775 F.3d 828, 840 (7th Cir. 2014).

         Defendant argues that 18 U.S.C. § 2256(2)(A)(v) is void for vagueness under the Fifth Amendment because “it fails to let citizens know the dividing point between images protected by the First Amendment and those images which are a crime to possess.” (Def.'s Suppl. Pretrial Mem. at 35.)

Vagueness doctrine is an outgrowth not of the First Amendment, but of the Due Process Clause of the Fifth Amendment. A conviction fails to comport with due process if the statute under which it is obtained fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.

Williams, 553 U.S. at 304. The Eighth Circuit has twice rejected vagueness challenges to the phrase “lascivious exhibition of the genitals or pubic area of any person” contained in 18 U.S.C. § 2256(2)(A)(v). United States v. O'Malley, 854 F.2d 1085, 1087 (8th Cir. 1988); United States v. Freeman, 808 F.2d 1290, 1292 (8th Cir. 1987).[2] See also United States v. Parrish, No. 2:16-cr-243, 2017 WL 3142082, at *4-5 (S.D. Ohio July 24, 2017) (rejecting vagueness challenge to 18 U.S.C. § 2256(2)(A)(v) based on O'Malley). The First Circuit Court of Appeals has also rejected a vagueness challenge to 18 U.S.C. § 2256(2)(A)(v) based on X-Citement Video. United States v. Silva, 794 F.3d 173, 177 (1st Cir. 2015); see also Genin, 594 F.Supp.2d at 420 n.3.

         For the reasons stated above, the Court recommends that Defendant's motion to dismiss the Indictment be denied.

         III. MOTION TO SUPPRESS EVIDENCE

         Defendant moves to suppress evidence obtained via four search warrants and two orders under 18 U.S.C. § 2703(d). In brief, Defendant argues that the Government's applications for these investigative tools did not present sufficient facts to support their issuance and contained material misrepresentations and omissions regarding the nature of the images and the context in which such images appeared.[3] No testimony was presented at the hearing and the Court's analysis is confined to the four corners of the applications.

         A. Application of Various Articles

         The Court first dispenses with an argument that colors the remainder of Defendant's arguments: the application of United States v. Various Articles of Merchandise, Schedule No. 287, 230 F.3d 649 (3d Cir. 2000) [hereinafter Various Articles]. Various Articles involved the seizure of magazines devoted to the nudist lifestyle pursuant to 19 U.S.C. § 1305(a). 230 F.3d at 651. Section 1305(a) prohibits the importation of, among other things, “any obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing, or other representation, figure, or image on or of paper or other material, or any cast, instrument, or other article which is obscene or immoral.” “All of the magazines contain[ed] numerous photographs of nude persons, including adult males and females as well as nude minors and nude teenagers.” Various Articles, 230 F.3d at 651. Analyzing the magazines under the three-part test for determining whether a work is obscene set forth by the Supreme Court in Miller, the Third Circuit Court of Appeals held that the magazines were not obscene and not subject to forfeiture. Various Articles, 230 F.3d at 652-59.

         Defendant contends that all of the still images charged in this case were taken from two nudist magazines, one of which was the same magazine considered by the Third Circuit in Various Articles. (Def.'s Mot. to Suppress Evidence at 15; Def.'s Suppl. Pretrial Mem. at 5.) Defendant argues that, “[a]s a matter of law, the doctrines of collateral estoppel or stare decisi[s] appear to stop the government from asking another court to make a factual determination whether these images depict sexually explicit conduct in the form of a lascivious exhibition of genitalia where the court in Various Articles found ‘The magazines just do not depict lewd exhibitions of the genitals.'” (Def.'s Suppl. Pretrial Mem. at 7 (quoting 230 F.3d at 657) (internal quotation omitted).) The Third Circuit, however, expressly stated that it “should not and w[ould] not analyze nor decide th[e] case as if it were brought under child pornography laws-which is was not. The magazines were seized as offending the ...


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