UNITED STATES of America, Appellee, v. Charles R. DAURAY, Defendant-Appellant.
No. 943, Docket No. 99-1253
United States Court of Appeals, Second Circuit
Argued: Jan. 14, 2000. Decided: June 15, 2000
215 F.3d 257
In this particular case, given the simplicity of Thompson‘s ineffective assis-tance claim, we choose to exercise our discretion to remand to the district court for further fact-finding rather than to dis-miss the appeal and force the appellant to use up his only habeas petition. We retain jurisdiction to hear appellant‘s claims once the record has been supplemented. See United States v. Jacobson, 15 F.3d 19, 21-22 (2d Cir.1994).
Gary D. Weinberger, Assistant Federal Public Defender, Hartford, CT (Thomas G.
Before: WINTER, Chief Judge, JACOBS and KATZMANN, Circuit Judges.
JACOBS, Circuit Judge:
Defendant-appellant Charles Dauray was arrested in possession of pictures (or photocopies of pictures) cut from one or more magazines. He was convicted follow-ing a jury trial in the United States Dis-trict Court for the District of Connecticut (Arterton, J.) of violating
BACKGROUND
On May 13, 1994, an officer of the Con-necticut Department of Environmental Protection approached Dauray‘s car in a state park and found Dauray in possession of thirteen unbound pictures of minors. The pictures were pieces of magazine pages and photocopies of those pages. On November 18, 1998, a federal grand jury returned a one-count indictment, charging Dauray with possessing child pornography in violation of
Dauray and the government stipulated at trial to the facts that bear upon this appeal. One stipulation provided that “[i] on or about May 13, 1994, Charles Dauray possessed the visual depictions which have been introduced into evidence . . .; and [ii] Charles Dauray was aware of the contents of these visual depictions and thus he knew that genitalia of minors appear in each of them.” A second stipulation was that the visual depictions were transported in inter-state commerce. The jury therefore had only to decide whether the visual de-pictions showed “minor[s] engaging in sex-ually explicit conduct,” i.e., whether they depicted the “lascivious exhibition of the genitals or pubic area.”
The district court then considered Dau-ray‘s pretrial motion, on which the court had earlier reserved decision, to dismiss the indictment for failure to charge an offense. See
Dauray was sentenced on April 30, 1999 to 36 months of imprisonment, followed by three years of supervised release, and a $50 special assessment.
The statute under which Dauray was convicted has since been amended. At the time, the statute provided in pertinent part:
(a) Any person who—
. . .
(4)
(B) knowingly possesses 3 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which was produced using ma-terials which have been mailed or so shipped or transported, by any means including by computer, if—
(i) the producing of such visual de-piction involves the use of a minor engaging in sexually explicit con-duct; and
(ii) such visual depiction is of such conduct;
shall be punished as provided in subsec-tion (b) of this section.
The question presented on appeal is whether individual pictures are “other matter which contain any visual depiction” within the meaning of
I.
A. Plain Meaning.
Our starting point in statutory interpretation is the statute‘s plain mean-ing, if it has one. See United States v. Piervinanzi, 23 F.3d 670, 677 (2d Cir. 1994). Congress provided no definition of the terms “other matter” or “contain.” We therefore consider the ordinary, com-mon-sense meaning of the words. See Harris v. Sullivan, 968 F.2d 263, 265 (2d Cir.1992).
Among the several dictionary definitions of the verb “to contain,” Dauray presses one, and the government emphasizes an-other.
- “To contain” means “to have with-in: hold.” Webster‘s Third New Inter-national Dictionary 491 (unabridged ed.1981). Dauray argues that a picture is not a thing that contains itself. Thus in the natural meaning of the word, a pictorial magazine “contains” pictures, but it is at best redundant to say that a picture “contains” a picture.
- “To contain” also means “to con-sist of wholly or in part: comprise; in-clude,” id., and the government argues that each underlying piece of paper is “matter” (as opposed perhaps to anti-matter) that contains the picture printed on it. It is also possible, applying this latter meaning, to say that each picture, composed of paper and ink, is matter that contains its imagery.
The district court assumed that Con-gress meant to employ both meanings. See Dauray, 76 F.Supp.2d at 194 (“The word ‘contain’ as used in the statute can mean both that items that enclose or hold visual depictions of minors engaged in sexually explicit conduct are included within the statute‘s ambit (such as a book), and that items that are comprised of such visual depictions are also included (such as a photograph).“). The district court thus recognized that one critical word of the statute lends itself to (at least) two meanings, only one of which can sustain the conviction, but then assumed, without resort to tools of construction, that the statutory language was drafted to support every meaning that would impose punishment. Resort to tools of construc-tion is necessary in this case, however, to
The plain meaning of another criti-cal term—“other matter“—is also elusive. The dictionary defines “matter” as “the substance of which a physical object is composed.” Webster‘s Third New Inter-national Dictionary 1394. Everything is more or less organized matter (as Napole-on observed). But Congress employed “matter” in a specific context, as the final, general term at the end of a list. We must “consider not only the bare meaning of the word but also its placement and purpose in the statutory scheme. [T]he meaning of statutory language, plain or not, depends on context.” Bailey v. United States, 516 U.S. 137, 145 (1995) (quoting Brown v. Gardner, 513 U.S. 115, 118 (1994)). Other courts have construed “other matter” in
There is no doubt that a pictorial maga-zine is “matter” that “contains” visual im-ages. But no court that has construed
Every other case that construes the term “other matter” has involved whether an individual computer graphics file is a “matter.” Compare Vig, 167 F.3d at 448 (holding that individual files are “other matter“), and Hall, 142 F.3d at 999 (same), with Lacy, 119 F.3d at 748 (hold-ing that computer files are not “other mat-ter,” but a hard drive and a floppy disk are). These cases consider whether a computer file has the capacity to “contain a visual depiction,” whether the general term “other matter” extends the statute‘s prohibition to a medium that is unenumer-ated in the list (and unlikely to have been thought of when the statute was drafted), and whether the proper analog to a graph-ics file is a page in a book or a book in a library. These cases have no evident bearing on whether a single magazine (which it was no crime to possess at the time of Dauray‘s arrest, no matter how many pages and pictures it contained) can become prohibited material simply by de-taching the staples that bind the pages.
This Court‘s recent decision in United States v. Demerritt, 196 F.3d 138 (2d Cir. 1999), is inapposite for similar reasons. In Demerritt, we considered the scope of
Demerritt cites with approval the Ninth Circuit‘s reasoning in Fellows that “[v]isu-al depictions in a computer are compiled and stored in graphics files, much like photographs are compiled and stored in books or magazines. . . .” Id. at 141 (quoting Fellows, 157 F.3d at 1200) (em-phasis added and internal quotation marks omitted). Demerritt‘s “discrete contain-ers” definition is suggestive, but it does not resolve this case: a fragment of a magazine page is “capable of being sepa-rately manipulated and distributed,” but whether the fragment is also a “discrete container[] for visual depictions” again turns on the definition of “to contain.”
B. Canons of Construction.
Because the government and Dau-ray each rely on a reasonable meaning of
- Lists and Other Associated Terms. Two related canons inform our analysis of the meaning of “other matter.” First, the meaning of doubtful terms or phrases may be determined by reference to their relationship with other associated words or phrases (noscitur a sociis). See, e.g., Dole v. United Steelworkers of America, 494 U.S. 26, 36 (1990). Second, “where gener-al words follow a specific enumeration of persons or things, the general words should be limited to persons or things similar to those specifically enumerated” (ejusdem generis). Turkette, 452 U.S. at 581; see United States v. Carrozzella, 105 F.3d 796, 800 (2d Cir. 1997). In this case, “other matter” should be construed to complete the class of items or things in the list preceding it, namely “books, magazines, periodicals, films, [or] video tapes.”
Dauray argues that the listed items form a category of picture containers that can enclose within them multiple visual depictions. Because a picture taken from a magazine is not itself a picture container, like books or magazines, but is rather a thing abstracted from its container, Dau-ray contends that a picture in itself cannot be considered “other matter” within the meaning of the statute, and that possession of three of them is not prohibited.
But these canons equally support the government‘s argument. The list—at a sufficient level of generality, and complet-ed by the catch-all “other matter“—can be read to include any physical medium or method capable of presenting visual de-pictions. A picture cut from a magazine, considered as paper and ink employed to exhibit images, can be said to contain an image or as many images as can be per-ceived in a picture or photograph, which depends on how one looks at it.
- Statutory Structure. “[A] stat-ute is to be considered in all its parts when construing any one of them.” Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 36 (1998). The Protection of Chil-dren Against Sexual Exploitation Act con-tains four substantive subsections (of which
§ 2252(a)(4) is one):§ 2252(a)(1) prohibits the interstate transportation of child pornography;§ 2252(a)(2) prohibits the receipt or distribution of it; and§ 2252(a)(3) prohibits its sale or possession with intent to sell. Only§ 2252(a)(4) spec-ifies that the conduct forbidden involves “books, magazines, periodicals, films, video tapes or other matter which contain” the pornography. The others more simply forbid “any visual depiction” of child por-nography, period. Dauray and the gov-ernment both find support in this statutory structure.
According to Dauray, the different drafting demonstrates that Congress knew how to prohibit the possession of individual pictures if it wanted to do so. The plain language of the other sections—each of which targets “any visual depiction“—is such that if Dauray had transported, dis-tributed or sold the pictures he merely possessed, he would have violated the law unambiguously.
But the government could argue: that the transport, distribution and sale of child pornography are most harmful to children, and were therefore prohibited regardless of the medium or number of visual de-pictions; that Congress did not want to cast so fine a net in the context of mere possession in order to assure that the acci-dental possessor of one piece of pornogra-phy avoids liability while the collector does not; and that Congress implemented the distinction by punishing only persons who possess a threshold number (three) of any-thing that contains pornographic images, i.e., “books, magazines, periodicals, films, video tapes or other matter.” If the stat-ute simply read “3 or more visual de-pictions,” then the accidental possession of one pictorial magazine could violate the statute. The difference between the lan-guage in
- Statutory Amendment. A statute should be construed to be consis-tent with subsequent statutory amend-ments. See Bowen v. Yuckert, 482 U.S. 137, 149-51 (1987). In 1998, Congress amended the statute by replacing “3 or more” with “1 or more” of the same list of “books, maga-zines, periodicals, films, video tapes or oth-er matter.” See Protection of Children from Sexual Predators Act of 1998, Pub.L. No. 105-314, § 203(a)(1), 112 Stat. 2974, 2978 (codified as amended at
18 U.S.C. § 2252(a)(4)(B) ). At the same time, Congress established an affir-mative defense for a defendant who could show that he possessed “less than three matters containing” child pornography and “promptly and in good faith . . . took reasonable steps to destroy” the pornogra-phy or report it to law enforcement offi-cials without disseminating it to others. Id. (codified at18 U.S.C. § 2252(c) ) (em-phasis added).
According to the government, the list, with its catch-all of “other matter,” is de-signed to reach even an individual photo-graph. That could have been accom-plished without the list, however, by an amendment that simply prohibits posses-sion of “1 or more visual depictions.” Dauray argues with some force that the list is superfluous post-amendment unless it serves to distinguish a “container” such as a magazine, from its contents, such as individual pictures cut from the magazine‘s pages. See United States v. Anderson, 15 F.3d 278, 283 (2d Cir.1994) (“[C]ourts will avoid statutory interpretations that render provisions superfluous.“). The govern-ment on this appeal makes no response to this argument, which is not to say that no response can be made.
Avoiding Absurdity. A statute should be interpreted in a way that avoids absurd results. See, e.g., United States v. Hendrickson, 26 F.3d 321, 336 (2d Cir. 1994). Whichever interpretation one ac-cepts, the statute tends to produce absurd results. Dauray‘s reading would prohibit the possession of three books, each of which contains one image, but allow the possession of stacks of unbound photo-graphs. Equally absurd, the government‘s reading would prohibit the possession of three individual photographs (unless they were mounted in a single album), but allow the possession of two thick illustrated tomes.
C. Legislative History.
When the plain language and can-ons of statutory interpretation fail to re-solve statutory ambiguity, we will resort to legislative history. See, e.g., Lee v. Bankers Trust Co., 166 F.3d 540, 544 (2d Cir. 1999). Unfortunately, “[e]xamination of [
II.
Due process requires that a criminal statute “give fair warning of the conduct that it makes a crime.” Bouie v. City of Columbia, 378 U.S. 347, 350-51 (1964). “[B]e-fore a man can be punished as a criminal under the Federal law his case must be ‘plainly and unmistakably’ within the pro-visions of some statute.” United States v. Plaza Health Labs., Inc., 3 F.3d 643, 649 (2d Cir.1993) (quoting United States v. Gradwell, 243 U.S. 476, 485 (1917)). The rule of lenity springs from this fair warning requirement. “In criminal prosecutions the rule of lenity re-quires that ambiguities in the statute be resolved in the defendant‘s favor.” Id.; see also United States v. Velastegui, 199 F.3d 590, 593 (2d Cir.1999) (“If we find that the ambit of the criminal statute is ambiguous, the ambiguity should be re-solved in favor of lenity.“). This expedient “ensures fair warning by so resolving am-biguity in a criminal statute as to apply it only to conduct clearly covered.” United States v. Lanier, 520 U.S. 259, 266 (1997).
But “[b]ecause the meaning of language is inherently contextual,” the Supreme Court has “declined to deem a statute ‘ambiguous’ for purposes of lenity merely because it was possible to articulate a con-struction more narrow than that urged by the Government.” Moskal v. United States, 498 U.S. 103, 108, 111 (1990). “Instead, [the Court has] always reserved lenity for those situations in which a reasonable doubt per-sists about a statute‘s intended scope even after resort to ‘the language and structure, legislative history, and motivating policies’ of the statute.” Id. (quoting Bifulco v. United States, 447 U.S. 381, 387 (1980)). It is a “doc-trine of last resort.” United States v. Hescorp, Heavy Equip. Sales Corp., 801 F.2d 70, 77 (2d Cir.1986); see also United States v. Granderson, 511 U.S. 39, 54 (1994) (apply-ing the rule of lenity “where text, struc-ture, and history fail to establish that the Government‘s position is unambiguously correct.“).
Here, we have done what we can. We have read the plain language of
While it is true that “our role as a court is to apply the provision as written, not as we would write it,” Demerritt, 196 F.3d at 143, the statute‘s ambigui-ty makes it impossible for us to apply the
The government did not show that the pictures at issue were taken from more than a single magazine. At the time of Dauray‘s arrest, the statute did not forbid possession of such a magazine. Nor did the statute give Dauray notice that remov-ing several pictures from the magazine, and keeping them, would subject him to criminal penalties. This result is unconsti-tutionally surprising. Under these circum-stances, we must apply the rule of lenity and resolve the ambiguity in Dauray‘s fa-vor.
CONCLUSION
For the foregoing reasons, the judgment is hereby reversed.
KATZMANN, Circuit Judge, dissenting.
I respectfully dissent from the majori-ty‘s well-argued opinion. I would not ap-ply the rule of lenity in this case. In Muscarello v. U.S., 524 U.S. 125, 118 S.Ct. 1911, 1919, 141 L.Ed.2d 111 (1998), the Supreme Court stated that the “simple existence of some statutory ambiguity . . . is not sufficient to warrant application of that rule, for most statutes are ambiguous to some degree.” The Court continued: “To invoke the rule, we must conclude that there is a grievous ambiguity or uncertain-ty in the statute.” Id. at 1919 (internal quotation marks omitted). I do not think that there is such a “grievous ambiguity or uncertainty” in the statute before us, or that we can make “no more than a guess as to what Congress intended.” United States v. Wells, 519 U.S. 482, 499 (1997). The statute requires that the visual depiction be con-tained within books, magazines, periodi-cals, films, video tapes, or other matter. The word “contain” in the statute, consis-tent with its purposes, could mean both “comprise” and “hold” and still, in my view, not lead to “grievous ambiguity or uncertainty.” Nothing in the statute itself or in the legislative record suggests that Congress did not intend to use both ordi-nary meanings of the word “contain.” It makes sense, given the statute‘s purposes, that a photograph could be understood—quite naturally—to “contain” a visual de-piction.
I fully agree with the majority that the statute could result in some incongruous interpretations. But in the end, I conclude that we must “apply the provision as writ-ten, not as we would write it.” United States v. Demerritt, 196 F.3d 138, 143 (2d Cir.1999).