United States v. Dauray

215 F.3d 257 (2nd 2000)

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Nature of the Case

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Facts

An officer of the Connecticut Department of Environmental Protection approached D's car in a state park and found D in possession of thirteen unbound pictures of minors. The pictures were pieces of magazine pages and photocopies of those pages. D was indicted with possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). The statute punished the possession of '3 or more books, magazines, periodicals, films, videotapes, or other matter' that have passed in interstate or foreign commerce and 'which contain any visual depiction' showing (or produced by using) a minor engaged in sexually explicit conduct. It defined 'sexually explicit conduct' in part as 'actual or simulated--lascivious exhibition of the genitals or pubic area of any person.' D stipulated that he possessed the visual depictions, that he was aware of the contents of these visual depictions and thus he knew that genitalia of minors appear in each of them and that the depictions were transported in interstate commerce. The jury, therefore, had only to decide whether the visual depictions showed 'minors engaging in sexually explicit conduct,' i.e., whether they depicted the 'lascivious exhibition of the genitals or pubic area.' D was found guilty. The court then considered D's pretrial motion, on which the court had earlier reserved decision, to dismiss the indictment for failure to charge an offense. D argued that each of the four pictures specified by the jury was in itself a 'visual depiction' and therefore could not be 'other matter which contain any visual depiction.' D's motion was denied. D appealed.