UNITED STATES of America, Plaintiff-Appellee, v. David ANDERSSON, Defendant-Appellant.
No. 85-2546.
United States Court of Appeals, Seventh Circuit.
Argued June 5, 1986. Decided Oct. 16, 1986.
803 F.2d 903
I am concerned, however, with the majority’s discussion of the Parole Commission’s reliance on the Deficiency Notice as being conclusive. The majority’s conclusion may be construed as an inappropriate invitation to the Commission to ignore both the Tax Court’s possible review of the Notice and the Federal Courts’ power to protect the due process rights of potential parolees. The Commission may choose to rely on other agencies’ actions in exercising its authority to make decisions affecting parole; but the Commission must do so in a way that affords the parolee due process of law. If the Tax Court rules in Kramer’s favor, it will eliminate, as we did in Kramer III, a source of the critical information relied on by the Commission. The Commission would have to consider that event, for to ignore it would be to render the process available to Kramer (i.e. the Deficiency Notice and attendant Tax Court review) ineffective, and therefore less than what is due.
CUMMINGS, Circuit Judge.
David Andersson was convicted of mailing and conspiring to mail and receive child pornography, violations of
“Susan’s Video,” a video club, was the meeting place for David Andersson and Robert Ullery. After discovering a mutual interest in child pornography, the two decided to trade pornographic materials. Andersson agreed to put photographs from Ullery’s private collection on videotape in exchange for a copy of the tape for his own use. In July 1984 Ullery mailed a box to Andersson that included magazines, assorted photos, and two blank videotapes. Defendant phoned Ullery to acknowledge receipt of the package on August 10, 1984.
Unknown to Andersson, shortly after that phone call Ullery was arrested and convicted of sexual exploitation of children and child molesting. On September 10, 1984, defendant mailed the finished tapes and materials back to Ullery. That box was opened on November 15, 1984, in the United States Attorney’s office. An additional tape of old “stag” films depicting children (under 10 years) engaging in sexual behavior had been returned to Ullery by Andersson. On November 28, 1984, the United States Attorney’s office taped a phone conversation between Ullery and defendant, with Ullery’s consent. During the conversation, Andersson expressed a desire to copy one of Ullery’s videotapes involving a 14-year-old girl engaging in a variety of
Defendant was charged with sexually exploiting children by mailing and conspiring to mail and receive pornographic materials involving the visual depiction of minors engaged in sexual activity. On June 7, 1985, the district court denied defendant’s motion to dismiss, which had alleged that
Andersson raises three issues on appeal. First he argues that
I. Constitutionality of § 2252
Andersson argues that the Constitution protects him from prosecution for “receiving pornographic material from his friend and returning it to its owner” (Def.Br. 10). Because the material was for private use only, he contends that his conviction is an “intolerable perversion of Congressional intent and must be overturned.” Id. Andersson contests his conviction on several points. First he seems to claim that Congress never intended that private users would fall under the statute. Second, he argues that because he has a right to possess the materials in his home, he must have a correlative right to obtain those materials.
Andersson was convicted under a 1978 statute designed to protect children from being used as participants in pornographic materials and as prostitutes. Protection of Children Against Sexual Exploitation Act, Pub.L. No. 95-225, 92 Stat. 7 (1978) (codified as amended at
The language of the statute is unambiguous. It extends to any mailing or receipt of pornographic literature involving children: commercial or non-commercial, public or private. And unfortunately for defendant the legislative history further supports coverage of his activity. United States v. Smith, 795 F.2d 841, 845-846 (9th Cir.1986); United States v. Miller, 776 F.2d 978, 979 (11th Cir.1985); see United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981). Congress certainly meant to extend coverage to those individuals who distributed pedophilic materials without commercial motive when it amended
Andersson also complains that if the statute applies to private mailings, it violates his right to privacy and is unconstitutional. According to defendant, Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), gives him the right to possess pedophilic materials in his home. Therefore, the argument goes, he must have a companion right to bring those materials into his or his friend’s home.
Although Stanley held that the government may not censor the books or films a person views in the privacy of her or his home, the Supreme Court subsequently limited that holding severely. In United States v. Reidel, 402 U.S. 351, 355, 91 S.Ct. 1410, 1412, 28 L.Ed.2d 813 (1971), the Court rejected the notion that under Stanley someone has a right to provide obscene materials for private use (Stanley “does not require that we fashion * * * a constitutional right * * * to distribute or sell obscene materials”); see also United States v. Thirty-Seven Photographs, 402 U.S. 363, 376, 91 S.Ct. 1400, 1408, 28 L.Ed.2d 822 (1971) (no right to “import obscene materials from abroad * * * for private use or public distribution”). Then, in United States v. Twelve 200 Ft. Reels of Super 8mm. Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973), the Court rejected the argument that Stanley created a right to acquire obscenity. And on the same day the Court held that Stanley did not preclude federal regulation of interstate transportation of obscene material, even by private means for private use. United States v. Orito, 413 U.S. 139, 141-142, 93 S.Ct. 2674, 2676-77, 37 L.Ed.2d 513 (1973) (there is no “zone of constitutionally protected privacy [that] follows such material when it is moved outside the home area protected by Stanley”). Thus even if An
II. Sentencing
Defendant maintains that the 12-year sentence he received (5 years on conspiracy Count I, 7 years on substantive Count II) was based on improper evidence and is disproportionate to the offense. In sentencing the defendant the district court relied upon pictures and videotapes of the defendant engaged in sexual activity with three girls. These pictures and videotapes were seized during a search of the defendant’s home but were excluded from trial. The court viewed the pictures as representing “very reprehensible conduct * * * simply the kind of conduct that should not go on.” Andersson argues that because there was no evidence that the pictures or film involved illegal conduct, the court improperly based its decision on its own moral judgment.
A district court has great latitude in determining what factors to consider when imposing sentence. United States v. Marquardt, 786 F.2d 771, 781 (7th Cir. 1986). The court may consider any and all information concerning the character and history of the defendant. United States v. Washington, 586 F.2d 1147 (7th Cir.1978). Nevertheless, a sentence may not be based on inaccurate or improper factors. United States v. Harris, 761 F.2d 394 (7th Cir. 1985). Because the sentence was within the maximum provided by Congress, it may be reviewed only for a manifest abuse of discretion. United States v. Mitchell, 788 F.2d 1232, 1237 (7th Cir.1986).
The district court found that the ages of the girls in the pictures were 15 or 16. That finding is not disputed by the defendant.4 Therefore, unless the use of the information is somehow improper, the sentence will be upheld. Defendant argues that the legality of his behavior controls so that the court’s expression of moral indignation of that behavior was improper. But the activity depicted in those photographs was closely related to the offenses for which he was being sentenced. See United States v. Gomez, 797 F.2d 417 (7th Cir. 1986). Furthermore, the Sexual Exploitation of Children Act extends its regulation beyond the “age of consent” to precisely this type of behavior with anyone under the age of eighteen.
Andersson next argues that the severity of his sentence is cruel and unusual and thus violates the Eighth Amendment. The court imposed consecutive sentences of 5 years on the conspiracy Count and 7 years and a $10,000 fine on the substantive Count, which were within the statutory limits. See
Finding no merit in defendant’s claims, we affirm the district court.
RIPPLE, Circuit Judge, concurring.
I join the judgment and the opinion of the court. I write separately only to note that, during the sentencing process, the trial judge made use of the probation officer sentencing council which this court has recently refused to sanction. United States v. Spudic, 795 F.2d 1334, 1342-44 (7th Cir.1986). The trial judge did not, of course, have the benefit of that decision when he imposed the sentence in this case and it is clear that he employed this device in a conscientious effort to determine an appropriate and fair sentence. Moreover, the appellant has raised no claim that the use of this device worked to his detriment. Accordingly, the court quite properly does not require resentencing on this ground.