ROBERT W. TIDWELL, PETITIONER V. UNITED STATES OF AMERICA No. 90-6569 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Sixth Circuit Brief For The United States In Opposition OPINIONS BELOW The initial opinion of the court of appeals (Pet. App. A1-A2) and its subsequent opinion following a remand by this Court (Pet. App. E1-E7) are not reported. The opinion of the district court (Pet. App. B1-B23) is not reported. JURISDICTION The judgment of the court of appeals was entered on November 6, 1990. The petition for a writ of certiorari was filed on December 16, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether petitioner was subject to prosecution in the Western District of Kentucky on an indictment charging that, in that district, he had knowingly used minors to engage in sexually explicit conduct for the purpose of producing child pornography. 2. Whether Congress, in 18 U.S.C. 2251(a) and 18 U.S.C. 2252(a), authorized separate convictions and punishments for (i) the production of child pornography and (ii) the transportation, receipt, or distribution in interstate commerce of the same pornography. 3. Whether the Double Jeopardy Clause prohibited petitioner's prosecution on a charge of using minors to engage in sexually explicit conduct for the purpose for producing child pornography after he had been convicted of other offenses in an earlier prosecution involving the same pornography. STATEMENT Upon his conditional guilty plea, petitioner was convicted in the United States District Court for the Western District of Kentucky on two counts of employing a minor child to engage in sexually explicit conduct for the purpose of producing a visual depiction of that conduct (which depiction was actually mailed), in violation of 18 U.S.C. 2251(a). He was sentenced to a total of 118 months' imprisonment. The court of appeals affirmed. Pet. App. A1-A2. Petitioner filed a petition for a writ of certiorari seeking review of the court of appeals' judgment. This Court granted the petition, vacated the judgment, and remanded for further consideration in light of Grady v. Corbin, 110 S. Ct. 2084 (1990). Pet. App. D. The court of appeals again affirmed the conviction. Id. at E1-E7. 1.a. Petitioner's principal contention is that this prosecution was barred by his prior convictions in the Middle District of Tennessee on related charges. The offenses with which petitioner was charged in the Kentucky and Tennessee indictments arose out of his involvement with child pornography produced on two occasions: First, in July 1986, in Louisville, Kentucky, petitioner participated with two others, Elessar Tetramariner and James Kaufman, in taking photographs of an 11-year-old child. The photographs depicted the minor's genitals lasciviously. Tetramariner took the film to his home in Michigan. From that location, he mailed developed "proof sheets" containing the photographs and later three individual photographs to petitioner in Nashville, Tennessee. Pet. App. B2-B3; id. at E2; Gov't C.A. Br. 2. Second, on March 7, 1988, petitioner took lascivious photographs of two five-year-old children in Edmonson County, Kentucky. Afterwards, petitioner transported the film from Kentucky to his home in Nashville, Tennessee, and gave it to a Walgreens drug store for developing. Walgreens shipped the film to Indiana for development. The Indiana developer then shipped prints made from the film back to the Walgreens in Nashville, where petitioner picked them up. Pet. App. B2-B3; id. at E2; Gov't C.A. Br. 2. b. In April 1988, in the Middle District of Tennessee, petitioner and Tetramariner were indicted on charges of receiving and transporting child pornography in interstate commerce. Petitioner entered guilty pleas to the four counts in which he was named. They charged petitioner with violating 18 U.S.C. 2252(a)(1) and (2) by (i) receiving in Tennessee the proof sheets that Tetramariner had mailed from Michigan; (ii) receiving in Tennessee the three photographs that Tetramariner had mailed from Michigan; (iii) transporting the film containing the photographs of the two five-year-old children from Kentucky to Tennessee; and (iv) receiving in Tennessee prints developed from that film and mailed from Indiana. Pet. App. B3. Petitioner was sentenced to a total of 13 years' imprisonment. c. In March 1989, in the Western District of Kentucky, petitioner was indicted together with Kaufman and Tetramariner on charges of using minors to make child pornography. Petitioner was named in two counts alleging violations of 18 U.S.C. 2251(a). The first charged that, in Jefferson County, Kentucky, he and Tetramariner used the 11-year-old child to engage in sexually explicit conduct for the purpose of producing a visual depiction of that conduct and that the depiction was actually mailed. The second charged that, in Edmonson County, Kentucky, petitioner used the two 5-year-old children to engage in sexually explicit conduct for the purpose of producing a visual depiction and that the depiction was actually mailed. C.A. App. 16-17. The government advised the district court that, in proving the jurisdictional basis for the offenses charged, it would rely upon the same mailings that had been involved in petitioner's Tennessee convictions. See Pet. App. B4. Petitioner and Tetramariner filed pretrial motions to dismiss the indictment. The district court denied the motions, holding that the Section 2251(a) offenses charged in this case were not the "same" (within the meaning of the Double Jeopardy Clause) as the Section 2252(a) offenses of which those defendants had already been convicted. Pet. App. B1-B23. The court first determined that the offenses defined by Sections 2251(a) and 2252(a) each require proof of a fact that the other does not, and thus are not the "same offense" under the test outlined in Blockburger v. United States, 280 U.S. 299 (1932). Pet. App. B7-B10. Focusing on the elements of the offenses as defined by the statutes, the court noted that Section 2251(a) requires proof that the defendant participated in producing child pornography, while Section 2252(a) does not, and that Section 2252(a) requires a showing that the defendant mailed, transported, or received pornography, whereas Section 2251(a) does not require that a defendant who has produced pornography be involved in its transportation in interstate commerce. Id. at B7-B10. /1/ The court acknowledged that proof offered in the prosecutions at issue would "substantially overlap," but found this circumstance to be immaterial under Blockburger. Id. at B10. The court explained that "it is not the proof actually offered, but the proof required by the statutes in question that is determinative." Ibid. The court found that the legislative history of the statutes also supported the conclusion that Sections 2251 and 2252 authorize separate punishments for the production and transportation or receipt of child pornography. Id. at B11. The district court also concluded that the offenses of which petitioner and his co-defendant had been convicted in Tennessee were not lesser included offenses of the Section 2251 offenses with which they were charged in this case. Id. at B13-B15. Referring to Ex parte Nielson, 131 U.S. 176 (1889), the court explained that "(t)he acts of transporting and mailing by these defendants, the offenses charged in the first indictment, were not 'integral parts' of the offenses charged in the second indictment()." Pet. App. B15. The court also found that the reasoning of Garrett v. United States, 471 U.S. 773 (1985), permitted successive prosecutions under the statutes at issue. Pet. App. B17-B19. The court concluded (Pet. App. B22): (U)nder no applicable analysis does the defendants' conduct constitute the "same offense" for purposes of double jeopardy, nor does the prosecution under this indictment violate principles of fairness or finality the Double Jeopardy Clause is intended to promote. Pursuant to Fed. R. Crim. P. 11(a)(2), petitioner entered conditional guilty pleas, reserving his right to withdraw his pleas in the event of a successful appeal from the denial of his double jeopardy motion. The district court sentenced petitioner to 118 months' imprisonment, to run concurrently with the term of imprisonment imposed in the Tennessee case. 2. The court of appeals affirmed in an unpublished per curiam decision, adopting the district court's reasoning. Pet. App. A1-A2. Petitioner filed a petition for a writ of certiorari seeking further review of the court of appeals' judgment. This Court granted the petition, vacated the court of appeals' judgment, and remanded for further consideration in light of Grady v. Corbin, supra. Pet. App. D. 3. The court of appeals again affirmed. Pet. App. E1-E7. The court noted that, under Grady, "the Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted." Id. at E4 (quoting 110 S. Ct. at 2087). The court found, however, that it was unnecessary for the government to rely on the conduct constituting the offenses charged in the prior prosecution to prove the offenses charged in this case. The court explained (Pet. App. E6-E7): In the prior convictions for the distribution offenses, (petitioner) was convicted of knowingly transporting and knowingly receiving visual depictions of a minor engaging in sexually explicit conduct. In the later production offenses, the jurisdictional element which must be proved is that "such visual depiction has actually been transported in interstate or foreign commerce or mailed." The government can prove the jurisdictional element without reference to (petitioner's) conduct. For example, the government could rely upon evidence that a drugstore received the second film in Tennessee, that it was shipped by the drugstore to Indiana and developed there, and that it was returned to the drugstore in Tennessee. The government could also rely upon the conduct of Tetramariner who took the first film from Kentucky to Michigan to be developed and then mailed proofs and enlargements to Tennessee. Neither requires proof of any conduct by (petitioner) and, therefore, would not prove the distribution offenses under section 2252. ARGUMENT The petition presents a variety of contentions, but they may fairly be reduced to three essential arguments. First, petitioner appears to suggest that venue for offenses arising from a defendant's involvement with a given batch of child pornography should be restricted to a single district. Second, he maintains that the Congress did not intend to authorize separate convictions or punishments for the offenses of producing and of transporting or receiving a particular article of child pornography. Third, petitioner contends that the Double Jeopardy Clause prohibits successive prosecutions for those offenses and that, in reaching the opposite conclusion following this Court's remand, the court of appeals misapplied Grady v. Corbin, supra. None of these contentions warrants this Court's review. 1. Under Fed. R. Crim. P. 18, venue is proper "in a district in which the offense was committed." Section 3237(a) of Title 18 provides that if an offense is "begun in one district and completed in another, or committed in more than one district," it may be prosecuted "in any district in which such offense was begun, continued, or completed." In this case, petitioner was charged with two counts of using a minor to produce child pornography, and the children involved were photographed in the Western District of Kentucky. Venue was therefore proper in that district, since the offenses of using minors to create child pornography began there. The substance of petitioner's venue contention appears to be that the government should not have been allowed to prosecute him for producing child pornography in a district other than the one in which the government had indicted him for transporting and receiving the same materials. The validity of that contention depends on the law of double jeopardy, not venue. If (as we demonstrate) the Double Jeopardy Clause permitted the prosecution of those offenses in separate cases, nothing in Fed. R. Crim. P. 18 or the venue statute would require that those cases be commenced in a single district. This case thus presents no venue issue. 2. As the district court noted, the facts underlying petitioner's Tennessee and Kentucky convictions overlapped. In Tennessee, petitioner was convicted on three counts of receiving child pornography that had been transported in interstate commerce by means of the mails and one count of transporting pornography in interstate commerce. In this case, the indictment charged that petitioner had participated in producing the pornography involved in the prior prosecution and that the pornography had actually been transported through the mails. The "first step in the double jeopardy analysis" of these facts "is to determine whether the legislature -- in this case Congress -- intended that each violation be a separate offense." Garrett v. United States, 471 U.S. at 778. See Missouri v. Hunter, 459 U.S. 359, 366 (1983); Albernaz v. United States, 450 U.S. 333, 337 (1981). In making that determination, the Blockburger test is "a useful canon of statutory construction." Garrett v. United States, 471 U.S. at 779. "Insofar as the question is one of legislative intent," however, "the Blockburger presumption must of course yield to a plainly expressed * * * view on the part of Congress." Ibid. As the district court held, both the relevant statutory materials and the Blockburger test lead to the conclusion that Congress has authorized separate convictions and punishments for violations of Section 2251 and 2252. The two offenses are set out in separate, self-sufficient sections of Title 18, each of which prescribes its own set of penalties. Congress apparently determined that the production of child pornography is an evil separate from its transportation and receipt and that defendants who engage in both forms of misconduct with respect to a given batch of pornography should be exposed to separate conviction and punishment under each statutory provision. /2/ The Blockburger test leads to the same conclusion. Section 2251 requires proof that the defendant used a minor for the purpose of producing child pornography, but Section 2252 does not. See United States v. Esch, 832 F.2d 531, 542 (10th Cir. 1987), cert. denied, 485 U.S. 908 (1988). A person can be convicted of transporting or receiving pornography whether or not he played any role in producing it. Conversely, an offense under Section 2252 requires proof that the defendant transported or received child pornography, while Section 2251 does not; Section 2251 requires only (a) that the defendant knew or had reason to know that the pornography would be transported in interstate or foreign commerce or mailed or (b) that, with or without the defendant's knowledge, the pornography actually was transported or mailed. Congress has authorized separate convictions and punishments for the offense of producing child pornography and the offense of transporting or receiving it. 3. The remaining issue is whether the Double Jeopardy Clause prohibits successive prosecutions for these offenses. As we have shown, those offenses do not qualify as a single offense for purposes of the prohibition on double jeopardy under the Blockburger test, since each of them requires proof of a statutory element that the other does not. The court of appeals was also correct in its determination that Grady v. Corbin did not foreclose petitioner's second prosecution. In Grady, the Court ruled that a prosecution for homicide and assault arising from an automobile collision was barred by the defendant's prior prosecutions for traffic offenses arising from the same collision. The Court noted that the second prosecution would not have been foreclosed by the Blockburger test. 110 S. Ct. at 2093. The Court held, however, in the context of the offenses at issue, that "the Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted." Id. at 2087; see id. at 2094. Because a bill of particulars demonstrated that the State would "prove the entirety of the conduct for which Corbin was convicted -- driving while intoxicated and failing to keep right of the median -- to establish essential elements of the homicide and assault offenses," the Court concluded that the subsequent prosecution was barred. Id. at 2094. Grady is inapplicable here. In the prior prosecution, petitioner was convicted on three counts of receiving child pornography that had travelled through the mails and one count of transporting film containing pornographic photographs in interstate commerce. The government was not required to rely on the conduct "constitut(ing)" those offenses (110 S. Ct. at 2087) or "the entirety of the conduct for which (petitioner) was convicted" (id. at 2094) to prove the offenses involved here. Each of the two counts to which petitioner pleaded guilty in this case charged (1) that petitioner had employed minors to engage in sexually explicit conduct for the purpose of producing child pornography and (2) that the pornography was "actually * * * mailed." 18 U.S.C. 2251(a). The first element involved conduct that was not in issue in the prior prosecution, and the second -- as the court of appeals noted, Pet. App. E6-E7 -- could be proved without referring to conduct constituting the offenses of which petitioner had already been convicted. To prove that the pornography produced by petitioner had actually been mailed, the government would not have had to show that petitioner himself had received the pornography or transported it. /3/ Thus, even though offenses involved in the two prosecutions involved proof that the pornography had travelled through the mails, those prosecutions did not involve the "same offense" within the meaning of the Double Jeopardy Clause as it was construed in Grady. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General THOMAS E. BOOTH Attorney JANUARY 1991 /1/ Section 2251(a) imposes specified penalties upon: Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, or who transports any minor in interstate or foreign commerce, or in any Territory or Possession of the United States, with the intent that such minor engage in any sexually explicit conduct for the purpose of producing any visual depiction of that conduct, * * * if such person knows or has reason to know that such visual depiction will be transported in interstate or foreign commerce or mailed, or if such visual depiction has actually been transported in interstate or foreign commerce or mailed. Section 2252(a) imposes specified penalties upon 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; or (2) knowingly receives, or distributes, any visual depiction that has been transported or shipped in interstate or foreign commerce by any means including by computer or mailed 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(.) Sections 2251(a) and 2252(a) have been amended since the commencement of the criminal activity involved in this case, but the amendments are not material to this case. The current version of the statutes is quoted. /2/ Quoting an excerpt from a 1977 conference committee report, petitioner contends that Congress meant to authorize only a single punishment in a case in which a defendant violates Sections 2251 and 2252. Pet. 15. The quoted passage is only an explanation of the resolution of a difference between penalty provisions in the House and Senate bills; it does not address the multiple punishment issue. See H.R. Conf. Rep. No. 811, 95th Cong., 1st Sess. (1977). /3/ Petitioner was convicted upon his guilty plea. Therefore, for purposes of the Double Jeopardy Clause, the issue is whether the government could have proven the offenses charged in the indictment without relying on conduct underlying petitioner's convictions in the prior prosecution. With respect to the count charging that petitioner photographed the five-year-old children, a conviction could have been based on either of two mailings. The film was mailed from Walgreens in Tennessee to a developer in Indiana, and the prints were mailed by the developer back to Walgreens, where petitioner picked them up. The government could have established that the photographs had "actually been * * * mailed" (18 U.S.C. 2251(a)) without referring to the fact that petitioner had transported them across state lines before leaving them at Walgreens and picked them up after they had been mailed to and from Walgreens. Likewise, evidence that Tetramariner put the proof sheets and photographs of the 11 year-old in the mail would have supplied a sufficient predicate for petitioner's conviction on the count involving those materials. It would not have been necessary to show that petitioner received them.