United States v. Walter J. Kussmaul

prevent would not judicata Res plaintiff asking Appeals Council America, UNITED STATES 17, of March reopen the decision Plaintiff-Appellee, claim, any constitutional colorable

Absent hearing however, evidentiary hav and no KUSSMAUL, reopen, request on a ing been conducted Defendant- Walter J. Appellant. jurisdiction court has no to review federal not to re Appeals Council’s decision No. 92-3314. at open. Califano, 430 U.S. 985-86; Secretary Harper v. S.Ct. at Appeals, United States Court of (6th Cir.1992); Runyon HHS, 978 F.2d 260 Sixth Circuit. (1992 HHS, Secretary No. 91-6487 Argued Oct. 25946), U.S.App. WL LEXIS 977 F.2d published opinion, decided without Decided Feb. Cir.1992).

Although the district court would jurisdiction to decide a colorable

have had deprived plaintiff

claim process law in

property due without of the Fifth Amendment

violation Constitution, plaintiffs

United States simply not color- claim was

constitutional claim Assuming arguendo that the

able. period

of entitlement to benefits for

prior to March constituted a question yet

“property” interest—a set plaintiff Supreme

tled Court—the suspect given us at all to no reason procedure through his claim

was denied failed to meet constitutional

norms. might suggestion plaintiff that the a violation

have been able demonstrate rights Secretary

of his if the constitutional persua- provided transcript him a is not

had plaintiff perfectly knew

sive. The well evidence had been

what submitted

agency, and is no constitutional re- there

quirement Appeals have a that the Council deciding

complete transcript before wheth- grant application reopen. an- See

er to HHS, Secretary

Blacha v. (6th Cir.1990). if Even there were 231-32 all, Appeals as we said in

no Council

Blacha, procedure followed

agency would be constitutional. court

The order entered district

January is AFFIRMED. Dominguez (argued and A.

Salvador briefed), Atty., Colum- Office of bus, OH, plaintiff-appellee. briefed), (argued Douglas W. Shaw Columbus, OH, defendant-appellant. BATCHELDER, Before: GUY and CELEBREZZE, Judges; and Senior Circuit Judge. Circuit BATCHELDER, Judge. Circuit Defendant-appellant Walter J. on one count of appealed his conviction case causing non-mailable videotapes, de- pornographic to be obscene of 18 U.S.C. livered mail violation I. 1989, using mailing list ob-

In October prosecution of an tained from an earlier company, film adult mail-order appellant, Walter Kuss- sent the J. maul, company’s periodic a letter in the attracting mailing aimed at the interest of pornog- those customers interested raphy. recipient informed the The letter Belgium, that he could write to an outfit Internationale,” get information “Artiste “extremely hard to find erotica” which to certain company did not stock “due agent attitudes.” The bans and stateside videos, including magazines and Rich of various Agent of the Customs Ser- charge, vice, age type that he included refer- the actors testified Belgium phrases activity portrayed. April “hard to 1990 Mr. ence videos, since in find and “stateside bans” both of erotica” ordered experience, por- child catalogue explicitly his law enforcement which the described as as twelve, used such references “code nographers depicting aged nine, and children wares, advertising their publicly in engaging words” in sexual with adult fourteen acts Belgium. in produced which are often money payment by men. He or- enclosed Agent also noted that “coded” Rich der in the On November $99.75. amount serve screen out those phrasing would 7, 1990, postal inspector de- an undercover obtaining pornogra- child not in interested videotapes Agent from livered received phy- home, where the Rich Mr. Kussmaul’s accepted tapes. The Cus- defendant 9, 1989, Mr. Kussmaul On November Service, agents, toms assisted other asking Belgian for a address wrote to soon entered and searched Mr. Kussmaul’s find list of erotica.” “catalog or hard Agents tapes in home. found included, his own initia- signed He and They chimney ash the basement cleanout. tive, he had cut out preprinted “affidavit” a videotapes, of also a number of discovered declaring him magazine catalogue a general adult both and nature. disclaiming any age least to be at request Post Office to screen “sexu- August On Walter addressed to ally advertisements” oriented violating counts was indicted on two December, a Customs Service him. In U.S. laws, charging specifically mail him one Belgium agent in at the received letter and the ordering pornography, address, Agent it to fake and forwarded ordering him obscene charging second Rich To ensure that Mr. Kuss- in Florida. through jury the mail.1 A trial material intentions, specify Agent maul his would George Smith com- before Honorable C. Rich another letter under “Artiste sent 17, 1991, De- and on menced on December name, explaining that Internationale” due 19, 1991, its ver- returned cember company inventory” the to “voluminous dicts, appellant guilty on finding the not general catalogue, and that maintain indict- guilty 2 of the Count and Count recipient inform the should therefore ment. company exactly the nature as appellant was March agent Again, material he wanted. term of a twelve month sentenced to serve pornography or careful not to mention ob- period 3-year imprisonment followed scenity in the letter. Mr. Kussmaul soon upon his supervised to be served release responded speci- this with letter another imprisonment, ordered release “purchasing fying his interest VHS appel- special assessment. pay a $50 magazines” portraying “Beastial- timely appeal. lant filed notice of “Hard ity women & animals” S & [sic]- submissive” and “teen sex.” M—female II. copy He enclosed a of his earlier corre- also spondence. against defending In himself argued original charges, Mr. prompt two

Satisfied willing- in the District Court the Government specific responses indicated the recent postal him. Armed with entrapped Federal had ness and intention break Supreme decision laws, Agent Rich mailed Mr. Kussmaul a Court — -, 112 S.Ct. descriptions U.S. containing explicit catalogue causing knowingly charged charged defendant with with receiv- One the defendant Count transported package to be delivered non-mailable which had been is, commerce, package addressed the defendant knowing shipped in interstate obscene, lascivious, lewd, inde- containing depictions contained visual of minors conduct, cent, recordings, sexually videotape engaged explicit filthy and vile viola- 2252(a)(2). U.S.C. Count Two violation of 18 tion of Johnson, (1992), held States which 118 L.Ed.2d Cir.1988). entrapped the had the Government pornography- ordering child into appellant Jacobson, main- Government of an intensive by means through the mails with the defendant continual contact tained vigorously now sting operation, Kussmaul sending him him and corresponding with claiming entrap- argument, reasserts organiza- to be from purporting leaflets Although acquit- matter of law. ment as a rights, “sex- speech free dedicated to tions charge, he ted of choice,” “freedom freedom” and ual sting its aimed notes that suggested that offenders; operation at child should be other aberrations pedophilia and — it ob- the evidence used at-, the Government Jacobson, legalized. prosecute operation to during the tained and a Only after some two at 1542. S.Ct. obscenity charge for which mailing agents provide the defen- years did the half For ultimately was convicted. order child opportunity to dant with the reason, that contends Ja- that mail, and then through the question applicable remains cobson took the bait. him when he agree.2 entrapment. We left no jury held that Court “petition- that way adequately to determine pro vigilant must The courts requisite predisposition possessed the er against agents of the Gov tecting citizens investigation and prior to the Government’s an in the mind of “implant ernment who independent of the Govern- it existed that person disposition innocent approaches peti- many and varied ment’s in or and induce its commission crime] [a tioner.” Id. may prosecute.” they that Sorrells der 53 S.Ct. United argues that Mr. Kussmaul At the 77 L.Ed. 413 after should have come never Government time, same He reads place. first Jacobson him in the fact that offi- proof settled that the is well the Government’s holding as [i]t employees of the Government cers or with evi must be established predisposition or facilities merely opportunities afford initial contact prior to its obtained dence does individual, of the offense for the commission and notes that targeted with the Artifice and prosecution. about the not defeat knew nothing the Government employed to catch stratagem may suggested mailing list company film enterprises. engaged in criminal likely those a lawbreak particular would be is flawed. reading of er. This Jacobson 212. The Govern- 53 S.Ct. at Id. at dissent, stressed O’Connor As Justice rea- prove beyond a ment must therefore preliminary rule that to com- predisposition a sonable doubt that [t]he predisposition contact can create the de- particular crime for which mit the by lower to be misread potential prior to and indicted existed fendant was investigators as criminal courts as well contact independent of Government — must the Government at-,-112 requiring as Jacobson, him. of a defendant’s evidence “the have sufficient Predisposition is S.Ct. ever seeks to con it his initial state of mind before defendant’s before in- Surely the Court cannot him. agents.” tact exposure government event, any pornography. acquit- down child Judge Guy since the believes that specifi sting operation that netted Kussmaul ted Mr. Kussmaul of charge, True, application has no here. cally targeted at least some objected the Government’s Jacobson court the sting raphy sting operation, predisposition” "ample evidence pornog- the context of a child activities in Guy Kuss Judge in the record to deflate finds operations evi- and such just entrapment would be as claim maul’s necessary dently out” this are to "ferret often wrongly the Government over obtained if practice. nothing exploitative But in Jacobson bounds, regardless specific what stepped its overwhelming governmental suggests ef- ultimately proved Kuss evidence crime that person get an otherwise innocent forts maul committed. tracking are forbidden commit a crime drugs on the street or whether requirement, it sells Postal impose tend to Inspectors ‘sting’ op- mean that the Government must conduct an “elaborate would suspicion have reasonable of criminal entrapment defense is eration ... investigation, begins it an activity before ready little use commission because before a condition that we have never amply the criminal act demonstrates the imposed. Id., predisposition.” citing defendant’s — Sherman, -, Jacobson, at United States U.S. at J., (2d Cir.1952) added). (O’Connor, dissenting) (emphasis (emphasis in 882 entrapment original). The law of treads explained: Court lines; conduct fine whether Government simply Had in this of- case depends proves entrapment largely to be petitioner opportunity to fered order operations. its on the circumstances of mails, pornography through hand, the one as Justice O’Connor stresses petitioner—who presumed must be dissent, the Government does need promptly know the law—had availed him- suspicion of ille- to establish a reasonable opportunity, it self of this criminal is instituting sting opera- gal activity before entrapment unlikely that his defense tion, requirement obvi- since such would a jury would have warranted instruction. operations. On ate the need to have such — -, Jacobson, 112 U.S. at S.Ct. at hand, never the other the courts have al- States, citing Mathews v. United 485 justify the the ends Government’s lowed 883, 888, U.S. S.Ct. L.Ed.2d means; force hand of a agents may not the (1988). law, sting target violating into the and then surrounding The the circumstances only predisposed to claim that someone closely hypo case at fit more with this bar doing capable a crime of so. commit is lengthy and thetical than with the intense the prohibit does not Government leading up to Mr. Ja Government efforts crimes; inducing people bad pornography. order of child cobson’s strengthens requirement simply it the Agent operation3 did not ex sting Rich’s prove agents did the Government its persistent and overzealous Gov hibit the criminality. the not induce defendant’s Ja- pursuit a reluctant and unre ernment of requires cobson that where a defendant period an sponsive individual over extended entrapment, prove, raises the Government doubt, so offended the Jacobson beyond a reasonable that the defen- of time which Straight agents Operation dant had the inclination commit the Court. charged, crime he is and that Mr. Kussmaul three times with which Lace contacted possibly response his criminal inclination did not re- to each prompt and received the sult from seductions Government agents worded the those contacts. agents. carefully connoisseurs letters so get the pornography would “cod of child importantly, very lan Most voluntarily. None respond ed” hints and anticipated guage itself of Jacobson Mr. sent to Kuss- letters distinguished Mr. Kussmaul’s situation and por purchase he suggested maul argument. and Where mails; through the nography or “teen sex” simply gives opportunity the defendant “an voluntarily responded to promptly he and crime,” commit a and the defendant ac contacts, including signed com crime, by committing commodates making his intent pleted “affidavit” clear entrapment claim is unavailable. Jacob — through the mails. son, at-, to receive 1541. In U.S. S.Ct. at case, catalogue, and when the cop requested whether an undercover He such freedom, soliciting preserving Inspectors re- Ohio Missouri 3. The Postal sponses regarding on various Agent his sexual tastes Rich referred the case after Mr. whom questionnaires. inspectors placed initi- order for the two child Kussmaul his Kussmaul pornography tapes engage ated communications Mr. in some these after committed the employment had and thus whose overzealous ordered activities Jacobson, crime; sending have no bear- these activities therefore Court decried in such as Mr. entrapped. underground an dedicated on whether Mr. Kussmaul newsletter in the mails will follow one, that the use of the two sexu- him he ordered agents sent business, mail, ordinary course of or where through the videotapes ally explicit4 foreseen, reasonably even purchase. can for his use including payment full though actually intended.” Pereira certainly is “affidavit” Kussmaul’s Mr. 1, 8-9, to cause evidence of clear This Gov- 98 L.Ed. 435 obscene, materi- mailing nonmailable “[rjation- accomplished. Since ernment has ultimately al, charge on which say beyond a reasonable jurors al ... could the affi- Beyond the defendant. possessed the doubt that [the defendant] acknowledgement aof will- explicit davit’s prior to the Govern- requisite predisposition the fact receive ingness to in- investigation and that it existed ment’s the affidavit Kussmaul enclosed Mr. ap- dependent of Government’s ... very first contact response — Jacobson, [him],” proaches familiarity suggests by the Government Mr. -, we affirm 112 S.Ct. at away legal sending niceties Kussmaul’s conviction. material, certainly bolsters adult predisposition. proof of the Government’s III. sum, three con- the Government’s initial simply offered tacts with Mr. Kussmaul assigns as error Mr. Kussmaul also opportunity to cause non-mailable him sentencing him under Court’s the District through the to him material be sent Sentencing which were Guidelines evidently urg- no needed Mr. sentencing rather effect on the date advantage of the ing to take immediate which were effect than opportunity. time committed the offense which he issue this, Our review of this successful was convicted. Beyond first, determine on what pornog- requires that we strategy against the child defense committed, sec offense was and charge essentially precludes him date the raphy 3553(a)(4) ond, requires claiming entrapment as a defense to § from apply the trial, sentencing court is to obscenity. At that the charge mailing of the date of sentenc in effect on acknowledged interest Guidelines Mr. application of movies,” ing, in this case the “X-rated, sexually explicit whether they later tapes as existed a collection agents seized of of the post the ex clause professed familiarity date offends his home. He facto fol For the reasons which claimed fre- Constitution. the film business and with low, that Mr. Kussmaul must be through the we quently to order adult films hold September 1989 Sen under the admissions show Mr. resentenced mails.5 These further Guidelines, tencing were effect on the mails to use 3, 1990, April day he ordered the two obscene material. purchase question. pornographic tapes that its prove need The Government argues that the indict- The Government put did not the idea the defen- the defendant with commit- knowledge charged act ment head to an dant’s “do[ ] Hurt, United States v. such materials. 4. Whether the defendant knew that videos 765, Cir.1986), amended, (9th rehearing expected send him Artiste Internationale to he 773-74 by legal banc, (9th Cir.), does not mat- denied, were obscene definition F.2d 707 cert. 808 en proof purpose 69, ter for the of the Government’s 816, denied, S.Ct. 33 108 98 L.Ed.2d 484 1461, U.S.C. is con- § i]t 18 "[Under conviction. stitutionally (1987) (following Hamling). prosecution show sufficient that knowledge of the contents a defendant had private possession sexu- it is true that 5. While distributed, and that he the materials featuring ally explicit material adults is deemed of the materi- of the character nature knew right, Stanley v. Geor- to be a constitutional see States, Hamling v. United 418 U.S. als." 1243, gia, 22 394 U.S. 89 S.Ct. L.Ed.2d 542 (1974). This 41 L.Ed.2d 590 (1969), using Kussmaul was convicted Mr. knowledge may evidence, proven by circumstantial illegally, possessing mails not of obscene ordering example person that the material. sexually explicit material knew it contained regular that he was a consumer of conduct 7, 1990, the ting on November one does an act knowledge the offense “[When] upon delivery date which the that the use of the mails will follow in the postal inspectors,6 business, made and ordinary course of or where such argues jury further that because con- reasonably foreseen, use can even count, him on that the defendant victed though intended, actually then he may challenge not now be heard to ‘causes’ the mails to be used.” Id. at wording offense date. quoting Pereira v. United not, law, indictment does as a matter of 1, 8-9, 358, 362-63, 74 S.Ct. 98 L.Ed. 435 that, purposes sentencing, mean placing Since the order rea- would Kussmaul committed the crime on Novem- sonably foreseeably have led to the 7, 1990, given upon ber the facts which the being prohibited mails’ used to deliver the ambiguity him. Minor obscenity, delay intercep- “the between the wording of the indictment does not tion delivery of the and its is not resulting render verdict void. See question relevant of causation.” Rodriguez-Ramirez, States v. Kuennen, Thus, 901 F.2d at 105. (9th Cir.1985) (where F.2d indict- U.S.C. under which Mr. law charged conspiracy ment defendant with convicted, prohibits Kussmaul was the act “beginning at a time unknown to Grand delivery, delivery which causes not the it- Jury, continuing including to and Octo- then, Logically, delivery self. the date of 7, 1983,” alleged mi- ber defects were “of is irrelevant to the date of commission of a consequence prejudicial.”) nor and not So violation, since it is the act of order- long “provided as the indictment sufficient ing obscene material which constitutes the notice to of the nature of [the] defendant[ ] offense. charges,” precision wording of the punish Because statute is to for the Here, consequence appeal. is of no Id. mails, join use of the ... we the Sixth clearly the evidence demonstrated that the in holding and Ninth Circuits 7, 1990, delivery November was caused persons statute reaches who order ob- ordering April defendant’s the videos in use, personal scene materials for thus cause the mails to be used for the The Government also relies on United delivery of materials. those Kuennen, States v. 901 F.2d 103 Cir. Carmack, 910 F.2d 748 United States 1990) defending ap in the District Court’s (11th Cir.1990), United States v. following plication Sentencing of the Guidelines. Johnson, (6th Cir.1988) F.2d 855 299 Kuennen, misplaced. This reliance is Hurt, v. 795 F.2d 765 United States the defendant mailed in June Cir.1986). intercepted of 1984. Customs officials the in post The clause the Constitu- ex material, replaced and later it in the in facto mail imposition punishment tion the of “forbids March, Kuennen, 1985. 901 F.2d at 104. assigned punishment more than the severe argued The defendant that the element of oc- punished law when the act to be necessary prove causation to a violation of 24, Graham, curred.” Weaver proven, 18 U.S.C. 1461 could not be since § 960, (1981). 101 67 L.Ed.2d 17 The service, he, ultimately the customs Congressional clause demands that where “caused” the material to be delivered. Id. Sentencing the Federal Guide- revision of The court held that the defendant’s act of “changes legal consequences of ordering lines pro the material constituted the conduct, drawing completed acts before its effective date” to analogy hibited to convict, arising cases under mail similar laws: the detriment of the Guidelines containing 6. The indictment for which Mr. Kussmaul was dressed to Walter J. Kussmaul ... lascivious, indecent, obscene, lewd, (2) convicted reads: filthy, videotape recordings, in viola- or about November in the South- and vile Ohio, ern District of WALTER J. KUSSMAUL tion of 18 U.S.C. 1461. § knowingly cause to delivered challenge We note that Mr. Kussmaul does not thereon, according to the direction nonmaila- sufficiency of the indictment. is, ble certain ad- application this time. Since at the in effect act criminal of the the time in effect clause, Mr. Kuss- post the ex Florida, violates applied. Miller facto must using the base resentenced must be maul 2446, 423, 431, 107 S.Ct. on in effect was of 6 which level offense L.Ed.2d 3, 1990. April Sentencing Guide- of 2G3.1 Section suffi- produced Since Mailing, or “Importing, applies lines a rational from which evidence cient in violation Matter” Obscene Transporting doubt a reasonable beyond find could 1465-66. 1460-63 U.S.C. §§ indepen- acts and the Government’s prior to Mr. Kuss- the time level at offense base predis- them, was Mr. Kussmaul dent of Effective Novem- 6. was sentence maul’s which crime for posed this amended section 1, 1990, Congress ber had not convicted, that he thus was 2G2.2, reference” adding § a “cross his conviction affirm entrapped, we been to “Traf- things applies among other which mailed under obscenity to be causing for Involving the Sexual in ficking Material U.S.C. § amendment a Minor.” Exploitation violation where erred requires Court the District since “transport- involved or 1465-66 Sentencing 1460-63 Guidelines applying §§ receiving, possessing, distributing, the Gov- ing, when November on effect involving Mr. videotapes receive material advertising ernment minor,” the on in effect exploitation Kussmaul, rather than those them, apply instead should he ordered sentencing when April court substantially in- lev- offense 2G2.2, imposes a base later Guidelines § applicable level Thus, application offense the base crease el of 13.7 is va- crime, sentence Mr. Kussmaul this revised to the remanded case is and this punishment on cated more severe imposed resentencing consistent Court April District committed act he criminal opinion. the Guidelines under prescribed was than of mail- tencing the offense persons convicted of Guy's Judge concern that While we share 18 U.S.C. matter under non-mailable irrele- application cross reference makes of the in- is material matter non-mailable Where por- acquittal vant the defendant’s minor, itas exploitation of a volving the sexual agree rea- charge, cannot nography we here, applies. This cross-reference these regard applicability soning sen- essentially applies the same cross-reference tencing Sentencing Guidelines' circumstances specifically intend those who levels to involving exploi- offenses cross-reference subsequently pornography and are mail Judge Guy believes that children. tation 2252(a)(2)(A), under applying the cross-refer- Court erred District transport or specifically intend who those did not conviction "the offense of ence because matter non-mailable through the mails receive their charge implicating minors or involve § U.S.C. under 18 are convicted and sending However, Guideline exploitation ...” sexual happens to receiving material or here, 2G3.1(c)(1), at issue cross-reference the § pornography. child be (cid:127) says: correct, Guy’s analysis cross- Judge this Were transporting, distribut- involved If the offense applica- any proper never could have reference advertising to receiving, possessing, or ing, tion, prohibited un- offenses since none exploita- involving the sexual receive material exploitation sexual the actual 1461 entails §der minor, (Transporting, apply C, § 2G2.2 tion Appendix Amendment minors. Trafficking Involv- Receiving, in Material Sentencing or Commission States Minor) Exploitation [em- of a ing guideline (incorporating the Sexual amendments Manual 1, 1990) unambigu- explains phasis added] November effective 2G3.1(c) say the of- ] that § does not ously [to amendment "[t]his cross-reference that The ex- 2G2.2 for offenses § must actual involve reference of conviction cross fense inserts involving fact, which, depict chil- it is clear that ploitation of Thus materials minors. of- penalties for is that purpose of the cross-reference ensure dren manifest adequately seriousness....” reflect their materials of the mailed fenses to the content look pre- Congress intended ap- that to be must assume level offense We to determine order Guy objects, Judge cisely to which Congress the result that cross-refer- plied. added In ways.” viz., “have it both 2G3.1, prosecutors that should be used in sen- the Guideline §to ence by sentencing issue raised defendant Judge, GUY, Jr., Circuit RALPH B. fact the sentenc- around the that revolves result. concurring in the pen- provided a more severe ing guidelines reached in the result Although I concur obscenity in 1991 alty certain offenses somewhat case, my analysis differs in this argues they Defendant than did earlier.1 Judge Batchelder’s. porno- placed his order for tapes May on graphic video issue, it entrapment cannot As to De- the date that controls. that should be this a close makes gainsaid argues alternately fendant if, as the true particularly is case. This to him were not delivered reason claims, majority minority in Jacobson by the more during time frame covered un- I find it predisposition. redefined govern- guidelines lenient issue, however, necessary explore ment, own, delay the deliv- elected to on its by acquitted Kussmaul was guide- days after the 1991 ery until a few I, of charge. pornography the child effective.2 lines became knowing course, way of whether have no unnecessary to resolve the issue I find it some other entrapment or jury found I con- parties because as framed case, but, prosecution’s defect fatal applying the district court erred clude reason, was found for whatever provision of U.S.S.G. cross-reference guilty. 2G3.1(c)(1). This section reads: § pornography acquittal transporting, dis- If involved the offense analysis my because charge is central tributing, receiving, possession, or adver- only focus was the child involving the tising receive material nur- planted and sting. If a seed was minor, apply exploitation of allegedly led government tured (Trafficking in Involv- Material 2G2.2 § act, that act a criminal defendant Minor; Exploitation of a ing the Sexual causing pornogra- child would have been Advertising, Transporting, or Receiving, commerce, in interstate phy shipped to be Involving the Sexual Possessing Material 2252(a)(2)(A). in violation of § Intent Exploitation of a Minor with only on was convicted defendant (Receipt Traffic) or Posses- 2G2.4 § charge of very different the related but Depicting a Minor En- sion of Materials by mail obscene causing to Conduct), as Sexually Explicit gaged material, in violation of U.S.C. § appropriate. merit short, although arguable I find case, although government’s In this they securing relate to arguments as directed at to defendant’s effort was whole conviction, possess a little insur- predisposition to order and replete by adding the I find the record taken out ance was sec- obscenity count.3 Guideline general ample evidence of 2G3.1(c)(l) that if the specifies tion under support his conviction offense constitut- a video cassette contained 6. Post- pre-1991 offense level was 1. The base engaged in depictions of minors pornogra- visual level for child the base offense sexually explicit conduct. phy is 2252(a)(2) and of 18 U.S.C. § In violation 18 U.S.C. 2.§ guideline became effec- amendments 2. The 1991 count, obscenity general con- Count delivery 1991. The controlled tive November trast, charged: 7, 1991. was made November 7, 1990, in the On or about November Ohio, J. KUSS- WALTER District Southern count, reads: Count knowingly cause to be MAULdid thereon, according non- to the direction in the or about November is, package Ohio, a certain mailable WALTER J. KUSS- District of Southern Kussmaul, Den- J. addressed to Walter knowingly receive a MAULdid Avenue, Coshocton, contain- Ohio transported shipped in inter- man had been lewd, lascivious, obscene, Ohio, (2) inde- ing two ad- to the State of state commerce cent, recordings. Kussmaul, videotape filthy and vile Denman Walter J. dressed to Avenue, Coshocton, knowing of 18 U.S.C. said In violation Ohio minor, exploitation of sexual involved guideline sec- referencing to other

cross Here, mandated.

tions is offense charge implicat- not involve conviction exploitation at their

ing minors or it both cannot have government

all. The charged two either The indictment

ways. or was du- distinct offenses

separate and under section To cross-reference

plicitous. nullify jury verdict

2G3.1 would be acquittal on the permissible. This is

count. America, STATES

UNITED

Plaintiff-Appellee, WYNN, Defendant-Appellant. A.

Jimmie

No. 92-5584. Appeals,

United States Court

Sixth Circuit. 28, 1993.

Argued Jan. 26, 1993.

Decided Feb. May

Rehearing Denied

Case Details

Case Name: United States v. Walter J. Kussmaul

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Feb 18, 1993

Citation: 987 F.2d 345

Docket Number: 92-3314

Court Abbreviation: 6th Cir.