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SUPREME COURT OF THE UNITED STATES

No. 93–723

UNITED STATES, PETITIONER v. X-CITEMENT VIDEO, INC., et al.

on writ of certiorari to the united states court of appeals for the ninth circuit

[November 29, 1994]

Chief Justice Rehnquist delivered the opinion of the Court.

The Protection of Children Against Sexual Exploitation Act of 1977, as amended, prohibits the interstate transportation, shipping, receipt, distribution or reproduction of visual depictions of minors engaged in sexually explicit conduct. 18 U. S. C. §2252. The Court of Appeals for the Ninth Circuit reversed the conviction of respondents for violation of this Act. It held that the Act did not require that the defendant know that one of the performers was a minor, and that it was therefore facially unconstitutional. We conclude that the Act is properly read to include such a requirement.

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 18 U. S. C. §§2252(a)(1) and (a)(2), along with one count of conspiracy to do the same under 18 U. S. C. §371. Evidence at trial suggested that Gottesman had full awareness of Lords' underage performances. United States v. Gottesman, No. CR 88–295KN, Findings of Fact ¶ 7 (CD Cal., Sept. 20, 1989), App. to Pet. for Cert. A-39 ("Defendants knew that Traci Lords was underage when she made the films defendant's [sic] transported or shipped in interstate commerce"). The District Court convicted respondents of all three counts. On appeal, Gottesman argued inter alia that the Act was facially unconstitutional because it lacked a necessary scienter requirement and was unconstitutional as applied because the tapes at issue were not child pornography. The Ninth Circuit remanded to the District Court for reconsideration in light of United States v. Thomas, 893 F. 2d 1066 (CA9), cert. denied, 498 U. S. 826 (1990). In that case, the Ninth Circuit had held §2252 did not contain a scienter requirement, but had not reached the constitutional questions. On remand, the District Court refused to set aside the judgment of conviction.

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 §2252 facially unconstitutional. The court first held that 18 U. S. C. §2256 met constitutional standards in setting the age of minority at age 18, substituting lascivious for lewd, and prohibiting actual or simulated bestiality and sadistic or masochistic abuse. 982 F. 2d 1285, 1288–1289 (CA9 1992). It then discussed §2252, noting it was bound by its conclusion in Thomas to construe the Act as lacking a scienter requirement for the age of minority. The court concluded that case law from this Court required that the defendant must have knowledge at least of the nature and character of the materials. 982 F. 2d, at 1290, citing Smith v. California, 361 U. S. 147 (1959); New York v. Ferber, 458 U. S. 747 (1982); and Hamling v. United States, 418 U. S. 87 (1974). The court extended these cases to hold that the First Amendment requires that the defendant possess knowledge of the particular fact that one performer had not reached the age of majority at the time the visual depiction was produced. 982 F. 2d at 1291. Because the court found the statute did not require such a showing, it reversed respondents' convictions. We granted certiorari, 510 U. S. — (1994), and now reverse.

Title 18 U. S. C. §2252 (1988 ed. and Supp. V) provides, in relevant part:

"(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 result from this construction, and because of the respective presumptions that some form of scienter is to be implied in a criminal statute even if not expressed, and that a statute is to be construed where fairly possible so as to avoid substantial constitutional questions.

If the term "knowingly" applies only to the relevant verbs in §2252 — transporting, shipping, receiving, distributing and reproducing — we would have to conclude that Congress wished to distinguish between someone who knowingly transported a particular package of film whose contents were unknown to him, and someone who unknowingly transported that package. It would seem odd, to say the least, that Congress distinguished between someone who inadvertently dropped an item into the mail without realizing it, and someone who consciously placed the same item in the mail, but was nonetheless unconcerned about whether the person had any knowledge of the prohibited contents of the package.

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 §2252, we would sweep within the ambit of the statute actors who had no idea that they were even dealing with sexually explicit material. For instance, a retail druggist who returns an uninspected roll of developed film to a customer "knowingly distributes" a visual depiction and would be criminally liable if it were later discovered that the visual depiction contained images of children engaged in sexually explicit conduct. Or, a new resident of an apartment might receive mail for the prior resident and store the mail unopened. If the prior tenant had requested delivery of materials covered by §2252, his residential successor could be prosecuted for "knowing receipt" of such materials. Similarly, a Federal Express courier who delivers a box in which the shipper has declared the contents to be "film" "knowingly transports" such film. We do not assume that Congress, in passing laws, intended such results. Public Citizen v. Department of Justice, 491 U. S. 440, 453–455 (1989); United States v. Turkette, 452 U. S. 576, 580 (1981).

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." 18 U. S. C. §641, cited in Morissette, 342 U. S., at 248, n. 2. Perhaps even more obviously than in the statute presently before us, the word "knowingly" in its isolated position suggested that it only attached to the verb "converts," and required only that the defendant intentionally assume dominion over the property. But the Court used the background presumption of evil intent to conclude that the term "knowingly" also required that the defendant have knowledge of the facts that made the taking a conversion — i.e., that the property belonged to the United States. Id., at 271. See also United States v. United States Gypsum Co., 438 U. S. 422, 438 (1978) ("[F]ar more than the simple omission of the appropriate phrase from the statutory definition is necessary to justify dispensing with an intent requirement").

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 both elements by invoking the background principle set forth in Morissette. In addition, the Court was concerned with the broader reading which would "criminalize a broad range of apparently innocent conduct." 471 U. S., at 426. Imposing criminal liability on an unwitting food stamp recipient who purchased groceries at a store that inflated its prices to such purchasers struck the Court as beyond the intended reach of the statute.

The same analysis drove the recent conclusion in Staples v. United States, 511 U. S. — (1994), that to be criminally liable a defendant must know that his weapon possessed automatic firing capability so as to make it a machine gun 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. 26 U. S. C. §5861(d). The Court first rejected the argument that the statute described a public welfare offense, traditionally excepted from the background principle favoring scienter. Morissette, supra, at 255. The Court then expressed concern with a statutory reading that would criminalize behavior that a defendant believed fell within "a long tradition of widespread lawful gun ownership by private individuals." Staples, 511 U. S., at — (slip op., at 10). The Court also emphasized the harsh penalties attaching to violations of the statute as a "significant consideration in determining whether the statute should be construed as dispensing with mens rea." Id., at — (slip op., at 16).

Applying these principles, we think the Ninth Circuit's plain language reading of §2252 is not so plain. First, §2252 is not a public welfare offense. Persons do not harbor settled expectations that the contents of magazines and film are generally subject to stringent public regulation. In fact, First Amendment constraints presuppose the opposite view. Rather, the statute is more akin to the common law offenses against the "state, person, property, or public morals," Morissette, supra, at 255, that presume a scienter requirement in the absence of express contrary intent. Second, Staples' concern with harsh penalties looms equally large respecting §2252: violations are punishable by up to 10 years in prison as well as substantial fines and forfeiture. 18 U. S. C. §§2252(b), 2253, 2254. See also Morissette, supra, at 260.

Morissette, reinforced by Staples, instructs that the presumption in favor of a scienter requirement should apply to each of the statutory elements which 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 — (slip op., at 20). Age of minority in §2252 indisputably possesses the same status as an elemental fact because non-obscene, sexually explicit materials involving persons over the age of 17 are protected by the First Amendment. Alexander v. United States, 509 U. S. — (1993) (slip op., at 4–5); Sable Communications of California, Inc. v. Federal Communications Commission, 492 U. S. 115, 126 (1989); FW/PBS, Inc. v. Dallas, 493 U. S. 215, 224 (1990); Smith v. California, 361 U. S., at 152. In the light of these decisions, one would reasonably expect to be free from regulation when trafficking in sexually explicit, though not obscene, materials involving adults. Therefore, the age of the performers is the crucial element separating legal innocence from wrongful conduct.

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 (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 (1) and "receive or distribute . . . [or] reproduce" in (2). In 1959 we held in Smith v. California, supra, that a California statute which 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, §2252 punished one who "knowingly transports or ships in interstate or foreign commerce or mails, for the purpose of sale or distribution for sale, any obscene visual or print medium" if it involved the use of a minor engaged in sexually explicit conduct. Pub. L. 95–225, 92 Stat. 7 (emphasis added). Assuming awareness of Smith, at a minimum, "knowingly" was intended to modify "obscene" in the 1978 version.

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), 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 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 (emphasis added).

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 §2251 to obscene materials. Id., at 2. The Committee did not make any clarification with respect to scienter as to the age of minority. In fact, the version reported by the committee eliminated §2252 altogether. Ibid. At that juncture, Senator Roth introduced an amendment which would be another precursor of §2252. In one paragraph, the amendment forbade any person to "knowingly transport [or] ship . . . [any] visual medium depicting a minor engaged in sexually explicit conduct." 123 Cong. Rec. 33047 (1977). In an exchange during debate, Senator Percy inquired:

"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, circumstances 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 §2252 of the Senate bill, and limited §2251 prosecutions to obscene materials. The Conference Committee adopted the substance of the Roth Amendment in large part, but followed the House version by restricting the proscribed depictions to obscene ones. The new bill did restructure the §2252 provision somewhat, setting off the age of minority requirement in a separate sub-clause. S. Conf. Rep. No. 95–601, p. 2 (1977). Most importantly, the new bill retained the adverb "knowingly" in §2252 while simultaneously deleting the word "knowingly" from §2251(a). The Conference Committee explained the deletion in §2251(a) as reflecting an "intent that it is not a necessary element of a prosecution that the defendant knew the actual age of the child." Id., at 5. Respondents point to the appearance of knowingly in §2251(c) and argue that §2252 ought to be read like §2251. But this argument depends on the conclusion that §2252(c) does not include a knowing requirement, a premise that respondents fail to support. Respondents offer in support of their premise only the legislative history discussing an intent to exclude a scienter requirement from §2251(a). Because §§2251(a) and 2251(c) were passed at different times and contain different wording, the intent to exclude scienter from §2251(a) does not imply an intent to exclude scienter from §2251(c).

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 difficult to conclude that the word "knowingly" modifies one of the elements in (1)(A) and (2)(A), but not the other.

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 & Construction Trades Council, 485 U. S. 568, 575 (1988).

For all of the foregoing reasons, we conclude that the term "knowingly" in §2252 extends both to the sexually explicit nature of the material and to the age of the performers.

As an alternative grounds for upholding the reversal of their convictions, respondents reiterate their constitutional challenge to 18 U. S. C. §2256. These claims were not encompassed in the question on which this Court granted certiorari, but a prevailing party, without cross-petitioning, is "entitled under our precedents to urge any grounds which would lend support to the judgment below." Dayton Bd. of Ed. v. Brinkman, 433 U. S. 406, 419 (1977). Respondents argue that section 2256 is unconstitutionally vague and overbroad because it makes the age of majority 18, rather than 16 as did the New York statute upheld in New York v. Ferber, supra, and because Congress replaced the term "lewd" with the term "lascivious" in defining illegal exhibition of the genitals of children. We regard these claims as insubstantial, and reject them for the reasons stated by the Court of Appeals in its opinion in this case.

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 §2252 was unconstitutional on its face, and we decline to decide it here.

The judgment of the Court of Appeals is

Reversed.