UNITED STATES v. X-CITEMENT VIDEO, INC., ET AL.
No. 93-723
Supreme Court of the United States
Argued October 5, 1994—Decided November 29, 1994
513 U.S. 64
Solicitor General Days argued the cause for the United States. With him on the briefs were Assistant Attorney General Harris, Deputy Solicitor General Kneedler, Malcolm L. Stewart, and Joel M. Gershowitz.
Stanley Fleishman argued the cause for respondents. With him on the briefs were Barry A. Fisher and David Grosz.*
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
The Protection of Children Against Sexual Exploitation Act of 1977, as amended, prohibits the interstate transpor
Rubin Gottesman owned and operated X-Citement Video, Inc. Undercover police posed as pornography retailers and targeted X-Citement Video for investigation. During the course of the sting operation, the media exposed Traci Lords for her roles in pornographic films while under the age of 18. Police Officer Steven Takeshita expressed an interest in obtaining Traci Lords tapes. Gottesman complied, selling Takeshita 49 videotapes featuring Lords before her 18th birthday. Two months later, Gottesman shipped eight tapes of the underage Traci Lords to Takeshita in Hawaii.
These two transactions formed the basis for a federal indictment under the child pornography statute. The indictment charged respondents with one count each of violating
On appeal for the second time, Gottesman reiterated his constitutional arguments. This time, the court reached the merits of his claims and, by a divided vote, found
Title
“(a) Any person who—
“(1) knowingly transports or ships in interstate or foreign commerce by any means including by computer or mails, any visual depiction, if—
“(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
“(B) such visual depiction is of such conduct;
“(2) knowingly receives, or distributes, any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, or knowingly reproduces any visual depiction for distribution in interstate or foreign commerce or through the mails, if—
“(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
“(B) such visual depiction is of such conduct;
“shall be punished as provided in subsection (b) of this section.”
The critical determination which we must make is whether the term “knowingly” in subsections (1) and (2) modifies the phrase “the use of a minor” in subsections (1)(A) and (2)(A). The most natural grammatical reading, adopted by the Ninth Circuit, suggests that the term “knowingly” modifies only the surrounding verbs: transports, ships, receives, distributes, or reproduces. Under this construction, the word “knowingly” would not modify the elements of the minority of the performers, or the sexually explicit nature of the material, because they are set forth in independent clauses separated by interruptive punctuation. But we do not think this is the end of the matter, both because of anomalies which
If the term “knowingly” applies only to the relevant verbs in
Some applications of respondents’ position would produce results that were not merely odd, but positively absurd. If we were to conclude that “knowingly” only modifies the relevant verbs in
Our reluctance to simply follow the most grammatical reading of the statute is heightened by our cases interpreting criminal statutes to include broadly applicable scienter requirements, even where the statute by its terms does not contain them. The landmark opinion in Morissette v. United States, 342 U. S. 246 (1952), discussed the common-law history of mens rea as applied to the elements of the federal embezzlement statute. That statute read: “Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States ... [s]hall be fined.”
Liparota v. United States, 471 U. S. 419 (1985), posed a challenge to a federal statute prohibiting certain actions with respect to food stamps. The statute‘s use of “knowingly” could be read only to modify “uses, transfers, acquires, alters, or possesses” or it could be read also to modify “in any manner not authorized by [the statute].” Noting that neither interpretation posed constitutional problems, id., at 424, n. 6, the Court held the scienter requirement applied to
The same analysis drove the recent conclusion in Staples v. United States, 511 U. S. 600 (1994), that to be criminally liable a defendant must know that his weapon possessed automatic firing capability so as to make it a machinegun as defined by the National Firearms Act. Congress had not expressly imposed any mens rea requirement in the provision criminalizing the possession of a firearm in the absence of proper registration.
Applying these principles, we think the Ninth Circuit‘s plain language reading of
Morissette, reinforced by Staples, instructs that the presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct. Staples held that the features of a gun as technically described by the firearm registration Act was such an element. Its holding rested upon “the nature of the particular device or substance Congress has subjected to regulation and the expectations that individuals may legitimately have in dealing with the regulated items.” Staples, supra, at 619. Age of minority in
The legislative history of the statute evolved over a period of years, and perhaps for that reason speaks somewhat indistinctly to the question whether “knowingly” in the statute modifies the elements of subsections (1)(A) and (2)(A)—that the visual depiction involves the use of a minor engaging in sexually explicit conduct—or merely the verbs “transport or ship” in subsection (1) and “receive or distribute ... [or] reproduce” in subsection (2). In 1959, we held in Smith v. California, supra, that a California statute that dispensed with any mens rea requirement as to the contents of an obscene book would violate the First Amendment. Id., at 154. When Congress began dealing with child pornography in 1977, the content of the legislative debates suggest that it was aware of this decision. See, e. g., 123 Cong. Rec. 30935 (1977) (“It is intended that they have knowledge of the type of material ... proscribed by this bill. The legislative history should be clear on that so as to remove any chance it will lead into constitutional problems“). Even if that were not the case, we do not impute to Congress an intent to pass legislation that is inconsistent with the Constitution as construed by this Court. Yates v. United States, 354 U. S. 298, 319 (1957) (“In [construing the statute] we should not assume that Congress chose to disregard a constitutional danger zone so clearly marked“). When first passed,
In 1984, Congress amended the statute to its current form, broadening its application to those sexually explicit materials that, while not obscene as defined by Miller v. California, 413 U. S. 15 (1973),4 could be restricted without violating the First Amendment as explained by New York v. Ferber, 458 U. S. 747 (1982). When Congress eliminated the adjective “obscene,” all of the elements defining the character and content of the materials at issue were relegated to subsections (1)(a) and (2)(a). In this effort to expand the child pornography statute to its full constitutional limits, Congress nowhere expressed an intent to eliminate the mens rea requirement that had previously attached to the character and content of the material through the word obscene.
The Committee Reports and legislative debate speak more opaquely as to the desire of Congress for a scienter requirement with respect to the age of minority. An early form of the proposed legislation, S. 2011, was rejected principally because it failed to distinguish between obscene and non-obscene materials. S. Rep. No. 95-438, p. 12 (1977). In evaluating the proposal, the Justice Department offered its thoughts:
“[T]he word ‘knowingly’ in the second line of section 2251 is unnecessary and should be stricken.... Unless ‘knowingly’ is deleted here, the bill might be subject to an interpretation requiring the Government to prove
the defendant‘s knowledge of everything that follows ‘knowingly‘, including the age of the child. We assume that it is not the intention of the drafters to require the Government to prove that the defendant knew the child was under age sixteen but merely to prove that the child was, in fact, less than age sixteen.... “On the other hand, the use of the word ‘knowingly’ in subsection 2252(a)(1) is appropriate to make it clear that the bill does not apply to common carriers or other innocent transporters who have no knowledge of the nature or character of the material they are transporting. To clarify the situation, the legislative history might reflect that the defendant‘s knowledge of the age of the child is not an element of the offense but that the bill is not intended to apply to innocent transportation with no knowledge of the nature or character of the material involved.” Id., at 28-29.
Respondents point to this language as an unambiguous revelation that Congress omitted a scienter requirement. But the bill eventually reported by the Senate Judiciary Committee adopted some, but not all, of the Department‘s suggestions; most notably, it restricted the prohibition in
“Would this not mean that the distributor or seller must have either, first, actual knowledge that the materials do contain child pornographic depictions or, second, cir
cumstances must be such that he should have had such actual knowledge, and that mere inadvertence or negligence would not alone be enough to render his actions unlawful?” Id., at 33050.
Senator Roth replied:
“That is absolutely correct. This amendment, limited as it is by the phrase ‘knowingly,’ insures that only those sellers and distributors who are consciously and deliberately engaged in the marketing of child pornography ... are subject to prosecution....” Ibid.
The parallel House bill did not contain a comparable provision to
The legislative history can be summarized by saying that it persuasively indicates that Congress intended that the term “knowingly” apply to the requirement that the depiction be of sexually explicit conduct; it is a good deal less clear from the Committee Reports and floor debates that Congress intended that the requirement extend also to the age of the performers. But, turning once again to the statute itself, if the term “knowingly” applies to the sexually explicit conduct depicted, it is emancipated from merely modifying the verbs in subsections (1) and (2). And as a matter of grammar it is
A final canon of statutory construction supports the reading that the term “knowingly” applies to both elements. Cases such as Ferber, 458 U. S., at 765 (“As with obscenity laws, criminal responsibility may not be imposed without some element of scienter on the part of the defendant“); Smith v. California, 361 U. S. 147 (1959); Hamling v. United States, 418 U. S. 87 (1974); and Osborne v. Ohio, 495 U. S. 103, 115 (1990), suggest that a statute completely bereft of a scienter requirement as to the age of the performers would raise serious constitutional doubts. It is therefore incumbent upon us to read the statute to eliminate those doubts so long as such a reading is not plainly contrary to the intent of Congress. Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988).
For all of the foregoing reasons, we conclude that the term “knowingly” in
As an alternative grounds for upholding the reversal of their convictions, respondents reiterate their constitutional challenge to
Respondents also argued below that their indictment was fatally defective because it did not contain a scienter requirement on the age of minority. The Court of Appeals did not reach this issue because of its determination that
Reversed.
JUSTICE STEVENS, concurring.
In my opinion, the normal, commonsense reading of a subsection of a criminal statute introduced by the word “knowingly” is to treat that adverb as modifying each of the elements of the offense identified in the remainder of the subsection. Title
“(a) Any person who—
“(1) knowingly transports or ships in interstate or foreign commerce by any means including by computer or mails, any visual depiction, if—
“(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
“(B) such visual depiction is of such conduct.” (Emphasis added.)
Surely reading this provision to require proof of scienter for each fact that must be proved is far more reasonable than adding such a requirement to a statutory offense that contains no scienter requirement whatsoever. Cf. Staples v. United States, 511 U. S. 600, 624 (1994) (STEVENS, J., dissenting). Indeed, as the Court demonstrates, ante, at 69-70, to give the statute its most grammatically correct reading, and merely require knowledge that a “visual depiction” has been
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, dissenting.
Today‘s opinion is without antecedent. None of the decisions cited as authority support interpreting an explicit statutory scienter requirement in a manner that its language simply will not bear. Staples v. United States, 511 U. S. 600 (1994), discussed ante, at 71, and United States v. United States Gypsum Co., 438 U. S. 422 (1978), discussed ante, at 70, applied the background common-law rule of scienter to a statute that said nothing about the matter. Morissette v. United States, 342 U. S. 246 (1952), discussed ante, at 70, applied that same background rule to a statute that did contain the word “knowingly,” in order to conclude that “knowingly converts” requires knowledge not merely of the fact of one‘s assertion of dominion over property, but also knowledge of the fact that that assertion is a conversion, i. e., is wrongful.* Liparota v. United States, 471 U. S. 419 (1985), discussed ante, at 70, again involved a statute that did contain the word “knowingly,” used in such a fashion that it could reasonably and grammatically be thought to apply (1) only to the phrase “‘uses, transfers, acquires, alters, or possesses‘” (which would cause a defendant to be liable without wrongful intent), or (2) also to the later phrase “‘in any manner not authorized by [the statute].‘” Once again applying the background rule of scienter, the latter reasonable and permissible reading was preferred.
There is no way in which any of these cases, or all of them in combination, can be read to stand for the sweeping propo
In United States v. Thomas, 893 F. 2d 1066, 1070 (CA9), cert. denied, 498 U. S. 826 (1990), the Ninth Circuit interpreted
I have been willing, in the case of civil statutes, to acknowledge a doctrine of “scrivener‘s error” that permits a court to give an unusual (though not unheard-of) meaning to a word which, if given its normal meaning, would produce an absurd and arguably unconstitutional result. See Green v. Bock Laundry Machine Co., 490 U. S. 504, 527 (1989) (SCALIA, J., concurring). Even if I were willing to stretch that doctrine so as to give the problematic text a meaning it cannot possibly bear; and even if I were willing to extend the doctrine to criminal cases in which its application would produce conviction rather than acquittal; it would still have no proper bearing here. For the sine qua non of any “scrivener‘s error” doctrine, it seems to me, is that the meaning genuinely intended but inadequately expressed must be absolutely clear; otherwise we might be rewriting the statute rather than correcting a technical mistake. That condition is not met here.
The Court acknowledges that “it is a good deal less clear from the Committee Reports and floor debates that Congress intended that the requirement [of scienter] extend ... to the age of the performers.” Ante, at 77. That is surely so. In fact, it seems to me that the dominant (if not entirely uncontradicted) view expressed in the legislative history is that set forth in the statement of the Carter Administration Justice Department which introduced the original bill: “[T]he defendant‘s knowledge of the age of the child is not an ele
The Court rejects this construction of the statute for two reasons: First, because “as a matter of grammar it is difficult to conclude that the word ‘knowingly’ modifies one of the elements in subsections (1)(A) and (2)(A), but not the other.” Ante, at 77-78. But as I have described, “as a matter of grammar” it is also difficult (nay, impossible) to conclude that the word “knowingly” modifies both of those elements. It is really quite extraordinary for the Court, fresh from having, as it says, ibid., “emancipated” the adverb from the grammatical restriction that renders it inapplicable to the entire conditional clause, suddenly to insist that the demands of syntax must prevail over legislative intent—thus producing an end result that accords neither with syntax nor with supposed intent. If what the statute says must be ignored, one would think we might settle at least for what the statute was meant to say; but alas, we are told, what the statute says prevents this.
The Court‘s second reason is even worse: “[A] statute completely bereft of a scienter requirement as to the age of the performers would raise serious constitutional doubts.” Ante, at 78. In my view (as in the apparent view of the Government before the Court of Appeals) that is not true. The Court derives its “serious constitutional doubts” from the fact that “sexually explicit materials involving persons over the age of 17 are protected by the First Amendment,”
I am not concerned that holding the purveyors and receivers of this material absolutely liable for supporting the exploitation of minors will deter any activity the United States Constitution was designed to protect. But I am concerned that the Court‘s suggestion of the unconstitutionality of such absolute liability will cause Congress to leave the world‘s children inadequately protected against the depredations of the pornography trade. As we recognized in Ferber, supra, at 766, n. 19, the producers of these materials are not always readily found, and are often located abroad; and knowledge of the performers’ age by the dealers who specialize in child pornography, and by the purchasers who sustain that market, is obviously hard to prove. The First Amendment will lose none of its value to a free society if those who knowingly place themselves in the stream of pornographic commerce are obliged to make sure that they are not subsidizing child abuse. It is no more unconstitutional to make persons who knowingly deal in hard-core pornography criminally liable for the underage character of their entertainers than it is to make men who engage in consensual fornication criminally liable (in statutory rape) for the underage character of their partners.
I would dispose of the present case, as the Ninth Circuit did, by reading the statute as it is written: to provide criminal penalties for the knowing transportation or shipment of a visual depiction in interstate or foreign commerce, and for
I could understand (though I would not approve of) a disposition which, in order to uphold this statute, departed from its text as little as possible in order to sustain its constitutionality—i. e., a disposition applying the scienter requirement to the pornographic nature of the materials, but not to the age of the performers. I can neither understand nor