United States v. Knox

Opinions of the United

1994 Decisions States Court of Appeals

for the Third Circuit

6-8-1994

United States of America v. Knox

Precedential or Non-Precedential:

Docket 92-7089

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UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________________

No. 92-7089

_____________________

UNITED STATES OF AMERICA

v.

STEPHEN A. KNOX,

Appellant

________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Crim. No. 91-00074)

________________________________

Argued August 17, 1992

Decided October 15, 1992

Certiorari Granted June 7, 1993

On Remand from the Supreme Court of the United States

November 1, 1993

Reargued April 27, 1994

Before: HUTCHINSON, COWEN and WEIS, Circuit Judges

(Filed June 9, 1994)

________________________________

Alan Silber (argued)

Hayden, Perle & Silber

1500 Harbor Boulevard

Lobby A, 2nd Floor

Weehawken, NJ 07087

1

COUNSEL FOR APPELLANT

STEPHEN A. KNOX

Kathleen A. Felton (argued)

U.S. Department of Justice

Appellate Section, Criminal Division

P.O. Box 899

Ben Franklin Station

Washington, DC 20044

COUNSEL FOR APPELLEE

UNITED STATES OF AMERICA

Edward W. Warren (argued)

Kirkland & Ellis

655 15th Street, N.W.

Suite 1200

Washington, DC 20005

COUNSEL FOR AMICI CURIAE

234 MEMBERS OF CONGRESS

Michael A. Bamberger (argued)

Sonnenschein, Nath & Rosenthal

1221 Avenue of the Americas, 24th Floor

New York, NY 10020-1089

COUNSEL FOR AMICI CURIAE

AMERICAN BOOKSELLERS FOUNDATION FOR FREE

EXPRESSION; COUNCIL FOR PERIODICAL DISTRIBUTORS

ASSOCIATIONS; NATIONAL ASSOCIATION OF ARTISTS'

ORGANIZATIONS; PERIODICAL AND BOOK ASSOCIATION

OF AMERICA, INC.; APERTURE FOUNDATION, INC.;

FREEDOM TO READ FOUNDATION; MAGAZINE PUBLISHERS

OF AMERICA; AMERICAN CIVIL LIBERTIES UNION; LAW

& HUMANITIES INSTITUTE

H. Robert Showers

National Law Center for Children and Families

3975 University Drive, Suite 320

Fairfax, VA 22030

COUNSEL FOR AMICI CURIAE

NATIONAL LAW CENTER FOR CHILDREN AND FAMILIES;

THE NATIONAL PARENT TEACHER ASSOCIATION; NATIONAL

COALITION AGAINST PORNOGRAPHY; "ENOUGH IS

ENOUGH!"; CHILDHELP USA; CHILD WELFARE LEAGUE OF

AMERICA; NATIONAL CENTER FOR MISSING AND

EXPLOITED CHILDREN; AMERICAN COALITION FOR ABUSE

AWARENESS; NATIONAL COUNCIL OF CATHOLIC WOMEN;

2

JUSTICE FOR CHILDREN; ALLIANCE FOR THE RIGHTS OF

CHILDREN; WOMEN AGAINST PORNOGRAPHY; LUTHERAN

CHURCH MISSOURI SYNOD; CHRISTIAN COALITION; FOCUS

ON THE FAMILY; FAMILY VIOLENCE & SEXUAL ASSAULT

INSTITUTE; FAMILY RESEARCH COUNCIL, INC.; NATIONAL

CENTER FOR REDRESS OF INCEST AND SEXUAL ABUSE;

RABBINICAL ALLIANCE OF AMERICA; CHRISTIAN LIFE

COMMISSION OF THE SOUTHERN BAPTIST CONVENTION;

CHRISTIAN ACTION NETWORK; HELP US REGAIN THE

CHILDREN; FREE CONGRESS RESEARCH AND EDUCATION

FOUNDATION; COALITIONS FOR AMERICA; SAVE AMERICA'S

YOUTH, INC.; CITIZENS AGAINST PORNOGRAPHY;

PENNSYLVANIA CHRISTIAN COALITION; TRADITIONAL

VALUES COALITION; CHRISTIAN LEGAL DEFENSE AND

EDUCATION FOUNDATION; EAGLE FORUM; CHILD

PROTECTION LOBBY; VOICES FOR VICTIMS; VOICES IN

ACTION, INC.

Ronald D. Ray

1012 South Fourth Street

Louisville, KY 40203

COUNSEL FOR AMICUS CURIAE

THE INSTITUTE FOR MEDIA EDUCATION

James P. Mueller

National Family Legal Foundation

5353 North 16th Street, Suite 400

Phoenix, AZ 85016

COUNSEL FOR AMICI CURIAE

NATIONAL FAMILY LEGAL FOUNDATION; MORALITY

IN MEDIA, INC.

______________________

OPINION OF THE COURT

______________________

COWEN, Circuit Judge.

The principal question presented by this appeal is

whether videotapes that focus on the genitalia and pubic area of

minor females constitute a "lascivious exhibition of the genitals

3

or pubic area" under the federal child pornography laws, 18

U.S.C. §§ 2252(a)(2), (4) and 2256(2)(E) (1988 & Supp. IV 1992),

even though these body parts are covered by clothing. When this

case first came before us, we held that such visual depictions do

qualify as lascivious exhibitions and that this interpretation

does not render the statute unconstitutionally overbroad. United

States v. Knox, 977 F.2d 815, 820-23 (3d Cir. 1992), vacated and

remanded, __ U.S. __, 114 S. Ct. 375 (1993).

At the Supreme Court's instruction, we have further

considered this case "in light of the position asserted by the

Solicitor General in his brief for the United States," Knox v.

United States, __ U.S. __, 114 S. Ct. 375 (1993). In that brief

and in its subsequent brief filed in this court after the Supreme

Court remand, the government argues that the plain language of

the statute requires the genitals or pubic area exhibited to be

at least somewhat visible or discernible through the child's

clothing. We hold that the federal child pornography statute, on

its face, contains no nudity or discernibility requirement, that

non-nude visual depictions, such as the ones contained in this

record, can qualify as lascivious exhibitions, and that this

construction does not render the statute unconstitutionally

overbroad. Finally, we again conclude that the government

presented sufficient evidence at the bench trial to establish

both the necessary mens rea and the delivery of the films through

interstate mail. We thus will reaffirm Knox's conviction.

I.

4

In March of 1991, the U.S. Customs International Branch

intercepted a mailing to France which contained a request that

two videos, "Little Girl Bottoms (Underside)" and "Little

Blondes," be sent to J. Richard Scott, 210 West Hamilton Avenue,

No. 108, State College, Pennsylvania. The parcel also contained

a check drawn on the account of defendant Stephen A. Knox and

bearing his signature. The check listed his address as 210 East

Hamilton Avenue, No. 25, State College, Pennsylvania. A second

envelope addressed to J. Richard Scott from the Netherlands also

was confiscated and contained a catalog advertising for sale

videotapes depicting nude, semi-clothed, and clothed minors.

Aware that Knox previously had been convicted of receiving child

pornography through the mail, the customs investigators obtained

a search warrant and with the assistance of the Pennsylvania

State Police searched his apartment.0

The police officers seized three video cassettes

produced by the Nather Company (hereafter "Nather Tapes"), a

videotape distribution company based in Las Vegas, Nevada. A

catalogue from the Nather Company with checkmarks next to several

video selections was also removed from Knox's apartment. One of

the marked videos in the brochure corresponded to a segment of a

compilation tape which was seized. Envelopes addressed to Nather

and Nather mail order forms were discovered as well as a carbon

0

The district court determined that the search of Knox's

apartment did not violate the Fourth Amendment, and Knox does not

contest this decision on appeal.

5

copy of a money order payable to Nather Company for an amount

approximately equal to the price of a single video.

The tapes contained numerous vignettes of teenage and

preteen females, between the ages of ten and seventeen, striking

provocative poses for the camera. The children were obviously

being directed by someone off-camera. All of the children wore

bikini bathing suits, leotards, underwear, or other abbreviated

attire while they were being filmed. The government conceded

that no child in the films was nude, and that the genitalia and

pubic areas of the young girls were always concealed by an

abbreviated article of clothing. The photographer would zoom in

on the children's pubic and genital area and display a close-up

view for an extended period of time. Most of the videotapes were

set to music. In some sequences, the child subjects were dancing

or gyrating in a fashion not natural for their age. The films

themselves and the promotional brochures distributed by Nather

demonstrate that the videotapes clearly were designed to pander

to pedophiles.

The United States prosecuted Knox based exclusively on

the three Nather tapes. Knox was indicted on two counts: (1)

knowingly receiving through the mail visual depictions of a minor

engaged in sexually explicit conduct; and (2) knowingly

possessing three or more videotapes that contain a visual

depiction of a minor engaging in sexually explicit conduct in

violation of 18 U.S.C. § 2252(a)(2) and (4). "Sexually explicit

conduct" for both of these offenses is defined to include a

6

"lascivious exhibition of the genitals or pubic area." Id.

§2256(2)(E).

Pursuant to Federal Rule of Criminal Procedure 12(b),

Knox filed a pre-trial motion to dismiss the indictment

contending that the videos did not contain an "exhibition" of the

genitals or pubic area since these areas were always covered by

underwear, leotards, or a bathing suit. Knox and the government

agreed to a pre-trial hearing to determine whether the indictment

was facially sufficient. The district judge viewed portions of

the Nather tapes which the parties stipulated were representative

of the material contained in the videos. To determine the

meaning of the statutory language "exhibition of the . . . pubic

area," the district court looked to the plain meaning of the

words. Since the pubic area is located directly adjacent to the

genitalia, the district court concluded that other areas in close

proximity to the genitals, specifically the "uppermost portion of

the inner thigh," were also included in the statutory definition

of the pubic area. District Court Memorandum at 14; App. at 41.

Since the upper portion of the inner thigh was clearly exposed,

the court held that the tapes contained an exhibition of the

pubic area, and therefore denied Knox's motion to dismiss the

indictment.

Knox waived his right to a jury trial and a bench trial

was held. At the bench trial, all of the exhibits and testimony

from the pre-trial hearing were incorporated into the record for

purposes of the trial. Additionally, the government admitted

into evidence advertising catalogues from Nather, Nather mail

7

order forms, and envelopes addressed to the Nather Company which

were seized from Knox's apartment. The catalogues described in

detail the contents and intended effect of the films that could

be purchased:

"Sassy Sylphs" will blow your mind so completely you'll

be begging for mercy.

Just look at what we have in this incredible tape:

about 14 girls between the ages of 11 and 17 showing so

much panty and ass you'll get dizzy. There are panties

showing under shorts and under dresses and skirts;

there are boobs galore and T-back (thong) bathing suits

on girls as young as 15 that are so revealing it's

almost like seeing them naked (some say even better).

District Court Memorandum at 11; App. at 38.

The government also introduced evidence to establish

that Nather mailed the tapes from its office in Nevada to the

mailbox which Knox had rented under a fictitious name. Finally,

the carbon copy of a sixty-two dollar money order payable to

Nather was admitted to prove the method of payment. Although

Knox did not testify and called no defense witnesses, he

introduced magazine advertisements for Nather's videotapes which

claimed that the absence of complete nudity rendered the tapes

legal to purchase and possess.

The district court found Knox guilty on both counts.

Thereafter, on February 13, 1992, Knox filed a motion for a

judgment of acquittal or, alternatively, as he styled it, an

application for a hearing to explore the anatomical issue decided

by the court, predicated upon the contention that the uppermost

portion of the inner thigh is not the pubic area. In conjunction

with this motion, Knox submitted the affidavit of Dr. Todd Olsen,

8

Director of Human Gross Anatomy at the Albert Einstein College of

Medicine. The affidavit of Dr. Olsen stated that defining the

pubic area to encompass the uppermost portion of the inner thigh

is anatomically incorrect. Since the motion was filed three

months after entry of the verdict, the district court denied the

motion as untimely. Knox was sentenced to the minimum mandatory

term of imprisonment of five years for each count, to be served

concurrently. The sentence has been stayed pending the outcome

of this appeal.

Knox appealed the denial of the motion to dismiss the

indictment, the guilty verdict, and the denial of the post-trial

motion for judgment of acquittal.0 We upheld Knox's conviction.

In doing so, we interpreted the statutory phrase "exhibition of

the genitals or pubic area" as encompassing the lascivious focus

on these body parts even though they were always covered by

underwear, leotards, or other thin but opaque clothing. United

0

In our prior consideration of this case, we addressed as a

preliminary matter whether we had jurisdiction to review the

issues presented in Knox's untimely post-trial motion for a

judgment of acquittal. See United States v. Knox, 977 F.2d 815,

818-19 (3d Cir. 1992) (Part II), vacated and remanded, __ U.S.

__, 114 S. Ct. 375 (1993). We decided not to address the merits

of the motion because we concluded that the district court had

not abused its discretion in declining to entertain it in the

first instance. Id. at 819. We next addressed whether a nude

display of the uppermost portion a minor subject's inner thighs

can be a lascivious exhibition of the pubic area. Id. at 819-20

(Part III). We concluded that it could not because this portion

of the human anatomy is not part of the pubic area as defined in

the most widely accepted human anatomy treatises. Id. at 819.

Because neither Knox nor the government, nor any of the various

amici parties, have argued that those conclusions are erroneous,

we need not address them in this opinion other than to say that

we adhere to the analysis and conclusions set forth in our prior

opinion which was vacated by the Supreme Court.

9

States v. Knox, 977 F.2d 815, 820-23 (3d Cir. 1992), vacated and

remanded, __ U.S. __, 114 S. Ct. 375 (1993). We are the first,

and to date only,0 court which has interpreted the statute to

allow for a conviction under these circumstances.

II.

After we affirmed his conviction, Knox successfully

petitioned the U.S. Supreme Court for certiorari. See Knox v.

United States, __ U.S. __, 113 S. Ct. 2926 (1993). In his

petition for certiorari, Knox presented four issues, most of

which focus on whether there can be an "exhibition of the

genitals or pubic area" under 18 U.S.C. § 2256(2)(E) where the

genitals and pubic area are fully covered by an article of

clothing.0 In its brief opposing the grant of certiorari, the

0

According to several of the briefs submitted to this court,

Knox's prosecution is the only one that has been brought by the

government where the criminal materials at issue do not contain

any nudity at all. The government did not dispute this

contention in its brief or at oral argument after remand from the

Supreme Court. Thus, for purposes of this appeal we will assume

that the contention is true. Of course, we recognize that a

prosecutor always has broad discretion to decide the

circumstances that warrant prosecution of a person for what the

prosecutor fairly believes is unlawful conduct. When the

prosecutor decides to prosecute, however, it is the exclusive

function of the judiciary to determine whether the conduct

charged is unlawful unless the prosecutor then withdraws the

prosecution.

0

The four questions presented by Knox in his petition for

certiorari are the following:

1) Whether there can be an "exhibition of the genitals

or pubic area" under 18 U.S.C. § 2256(2)(E) where the

genitals and pubic area are fully covered by an article

of clothing.

2) Where no other prosecution has ever been brought and

no other arrest has ever been made charging an

10

government supported the theory we adopted in upholding Knox's

conviction. After the grant of certiorari, and the change in

administration following President Clinton's election, the

government took a different position.

The government's new position is that while complete

nudity is not absolutely required for a depiction to constitute a

criminal "exhibition," this court "erred in holding that simply

focusing on the midsection of a clothed body may constitute an

'exhibition' of the unrevealed body parts beneath the garments."

Gov't Sup. Ct. Brief (Sept. 1993) at 10. In the government's

view, a criminal "exhibition" requires both that the visual

depiction focus in on the body parts and that it render them

visible or discernible in some fashion. Id.

Reviewing the legislative history, the government noted

that the Justice Department in 1977 had made a suggestion to

exhibition of the genitals which were fully covered by

an article of clothing, and the defendant knew that the

videotape contained no nudity and was told that the

videotape was therefore legal, did the government

introduce sufficient proof of scienter to support a

guilty verdict?

3) Where no other prosecution has ever been brought and

no other arrest has ever been made charging an

exhibition of the genitals which were fully covered by

an article of clothing, is an objectively reasonable

good faith belief in the legality of the depiction a

valid affirmative defense?

4) Assuming arguendo that there can be an "exhibition

of the genitals or pubic area" under 18 U.S.C.

§2256(2)(E) where the genitals and pubic area are fully

covered by clothing, is 18 U.S.C. § 2256(2)(E)

unconstitutionally vague and overbroad?

Knox's Petition for a Writ of Certiorari (Sup. Ct. No. 92-1183,

October Term, 1992) at (i).

11

substitute the phrase "lewd exhibition of the genitals or pubic

area" for a more vague phrase in order to more clearly delineate

"what types of nude portrayals of children were intended to be

encompassed" within the statute. Id. at 11 (quoting Protection

of Children Against Sexual Exploitation: Hearings Before the

Subcomm. to Investigate Juvenile Delinquency of the Senate Comm.

on the Judiciary, 95th Cong., 1st Sess. 77-78 (1977), reprinted

in 1978 U.S.S.C.A.N. 63 (letter from Patricia M. Wald, Assistant

Attorney General to James O. Eastland, Chairman, Committee of the

Judiciary)) (emphasis added by government). The government reads

this legislative history as an indication that Congress only

intended to criminalize depictions that are at least partly nude

in nature. In our prior opinion, we distinguished this

legislative history by noting that the language of the Wald

letter assumed that Congress only intended to criminalize nude

depictions because the language of the bill at that time

contained the word "nudity."

As to the scope of nudity required, the government did

not go so far as to agree with Knox that complete nudity is

required. Rather, the government asserted that Congress intended

to criminalize depictions of genitals that are at least somewhat

visible. Id. at 11-12. Thus, the government stated that a

child's genitals which are covered by a transparent or nearly

transparent garment, or clothing that is so tight as to reveal

completely the contours of the genitals, would constitute a

criminal "exhibition" within the meaning of the statute. Id. at

12

12.0 Ultimately, the government believes that the child's

genitals or pubic area must be "discernible" through his or her

tight clothing in order for the exhibition to be child

pornography under 18 U.S.C. § 2256(2)(E).

The government put forth a second reason why our prior

opinion could not be fully supported. Relying on the

introductory statutory language which states that § 2252(a)

covers only depictions involving "the use of a minor engaging in

sexually explicit conduct," 18 U.S.C. § 2252(a) (emphasis added),

the government concluded that a criminal "exhibition" exists only

where "the minors who appear in the videotapes can be said to

have been acting or posing lasciviously." Gov't Sup. Ct. Brief

(Sept. 1993) at 13. Thus, according to the government's

position, the appropriate inquiry is on whether the child

lasciviously poses her (or someone else's) genitals or pubic

area. See id. Because neither this court nor the district court

interpreted the statute in this fashion, the government requested

that the Supreme Court vacate the judgment and remand for

reconsideration in light of the "correct" statutory standard.

The government also addressed two related issues in its

Supreme Court brief. First, it argued that adoption of the

advocated statutory standard would not render the statute

unconstitutionally vague or overbroad. Id. 14-17.0 Finally, the

0

The government acknowledged that the adoption of such a standard

would be more easily applied to depictions of boys than girls

because of obvious anatomical differences. Id. at 12 n.3.

0

We rejected Knox's arguments concerning overbreadth in our prior

opinion by finding the term "lascivious" as the limiting

principle. See Knox, 977 F.2d at 823.

13

government supported that part of our prior opinion which

rejected Knox's argument that he did not possess the necessary

mens rea to violate the child pornography statute because he did

not know the illegal nature of the contents of the videos, and

because he relied on disclaimers which accompanied the videotapes

from their commercial source. Id. at 17-20; see also Knox, 977

F.2d at 824-25.

In the final section of its Supreme Court brief, the

government stated that the videotapes at issue in this case might

be deemed unlawful under the statutory standard advocated in its

brief. Because we did not interpret the statute consistently

with the government's new position, the government requested that

the case "be remanded so that the Court of Appeals can assess the

sufficiency of the evidence under the proper legal standard."

Gov't Sup. Ct. Brief (Sept. 1993) at 20. The government

clarified that the only task necessary on remand was for this

court "simply to determine whether the evidence was sufficient,

under the correct legal standard, to support a general verdict of

guilty." Id. at 23.

Upon the close of briefing in the Supreme Court, but

before the case was argued, the Court vacated the judgment and

remanded. See Knox v. United States, __ U.S. __, 114 S. Ct. 375

(1993). The Supreme Court's mandate states the following: "The

judgment is vacated and the case is remanded to the United States

Court of Appeals for the Third Circuit for further consideration

in light of the position asserted by the Solicitor General in his

brief for the United States filed September 17, 1993." Id. Our

14

charge on remand is to further consider our interpretation of the

statute in light of the interpretation advanced by the government

in its brief to the Supreme Court.0

III.

Before turning to the merits of the case, we must

address one procedural issue. After the Supreme Court vacated

the judgment and remanded the case for further consideration, on

December 23, 1993 the government filed a Motion to (further)

Remand the case to the district court. This motion was made

during the new briefing schedule established by us on November

17, 1993. The government's motion sought an immediate remand for

the purpose of a retrial in the district court to be conducted

according to the interpretation of § 2256(2)(E) advocated by the

government.

In its motion, the government stated that at the new

trial, if granted, it intends to introduce evidence which was not

offered at the original trial pursuant to an agreement between

Knox and the government whereby the defense agreed to a bench

trial in return for use at trial of only certain specified

videotapes (i.e., the three Nather tapes). The government

0

After the Supreme Court remanded the case, we granted amicus

curiae status to five interested parties, all of which have

submitted briefs in this court. Four of the amici parties urge

us to reaffirm Knox's conviction on the theory adopted in our

prior opinion: 234 Members of Congress; The Institute for Media

Education; National Law Center for Children and Families et al.;

and National Family Legal Foundation and Morality in Media. The

final amicus party, American Booksellers Foundation for Free

Expression et al., supports Knox and argues that he should be

acquitted of the child pornography charges.

15

requested a suspension of the briefing schedule and an immediate

remand to the district court. We entered an order denying the

government's request for an immediate remand and a suspension of

the briefing schedule; we did, however, inform the parties that

we would further consider the merits of the government's motion

following the briefing schedule and oral argument.

Other than the arguments made in the December 23, 1993

Motion to Remand, the government has not further briefed this

issue. In its brief on the merits, however, the government

renews its request that we remand the case to the district court

for a new trial. Gov't Brief (March 1994) at 28.

The government argues that a remand is in order because

it has espoused a standard for interpreting the child pornography

statute that was not used by this court in reviewing the

conviction, and that was not used by the district court at trial.

Thus, the government believes that Knox should be retried

according to the standard urged by the government. According to

the government, a retrial would require factual determinations

concerning the evidence which would be inappropriate for this

court to make, specifically factual findings as to whether any of

the depictions in the videos reveal pubic areas or genitalia

which are discernible through the opaque clothing. For this

reason, as well as others, the government seeks a remand to the

district court for a new trial.

In its Motion to Remand, the government also noted that

in his reply brief filed in the Supreme Court, Knox requested a

remand to the district court in the event the Supreme Court

16

agreed with the government concerning the newly proposed

interpretation of the child pornography statute. As noted

previously, the government admitted in its motion that if we

agree to a remand, it will seek to introduce different evidence

at trial. The government argues that this is still the

appropriate course for the case at this juncture given that this

court will have a full opportunity to review the district court's

application of the proposed statutory standard in the event that

Knox is convicted again.

Following the remand from the Supreme Court, Knox now

opposes the government's motion to remand the case. First, Knox

argues that a remand for a new trial arguably would run directly

contrary to the Supreme Court's mandate for us to reconsider our

previous opinion "in light of the position asserted by the

Solicitor General," Knox, __ U.S. __, 114 S. Ct. 375.0 Knox also

argues that the government's new position raises an ambiguity

concerning the statute to which the rule of lenity must be

applied. Although Knox has not fully briefed this argument, he

contends that jeopardy has attached and that appellate review of

the trial record might result in his acquittal as a matter of

law. Thus, Knox argues that a remand for the purpose of giving

the government a second bite at the evidentiary apple would be

0

Knox, noting that the case has created a political firestorm,

therefore believes that the government wishes to avoid criticism

by using additional evidence to gain a conviction in a new trial

because the existing record does not contain sufficient evidence

to uphold the conviction under the "discernible genitals"

standard proposed by the government. We express no opinion

concerning this contention.

17

constitutionally inappropriate as a violation of the Double

Jeopardy Clause of the Fifth Amendment.

Amici curiae parties, including the amici Members of

Congress, also filed answers in opposition to the government's

motion for remand. The amici parties make several arguments as

to why granting the motion would be inappropriate. Essentially,

they argue that a remand would arguably violate the Supreme

Court's mandate, that the only disputed issue is legal in nature

and should be decided by this court, and that Supreme Court

precedent does not support the view that if at some time during

the proceeding both parties seek a remand to the district court,

that an appellate court must adhere to that request.

We will deny the government's Motion to Remand because

we believe that an immediate remand to the district court for

purposes of conducting a retrial without first deciding the legal

issue before us would violate the Supreme Court's mandate to this

court. The Supreme Court vacated our judgment and remanded the

case to us, not the district court, "for further consideration in

light of the position asserted by the Solicitor General in his

brief for the United States." Knox v. United States, __ U.S. __,

114 S. Ct. 375 (1993).

In the government's Supreme Court brief, the Solicitor

General merely argued that the interpretation of the child

pornography statute adopted in our prior opinion was legally

incorrect. The government advocated the adoption of a different

statutory standard, one that requires the contours of the

genitalia or pubic area to be discernible through the opaque

18

clothing in order for possession of the material to be criminal.

By remanding the case to this court for further consideration in

the first instance, the Supreme Court declined to address the

purely legal question presented.

Although the government's Supreme Court brief did at

one point request a remand to this court or the district court,

it did so only for the purpose of applying the legal standard

newly espoused by the government.0 The government never argued

in its Supreme Court brief that the case ought to be remanded to

the district court in order for the prosecution to introduce

additional evidence which, if admitted, might moot the entire

statutory interpretation issue which confronted the Supreme Court

0

The government's Supreme Court brief refers to or advocates a

remand in five different places. See Gov't Sup. Ct. Brief (Sept.

1993) at 9-10, 13, 20, and 23 (both in Part IV and Conclusion).

At only one point in the brief did the government mention a

remand to the district court. See id. at 20. There, the

government stated: "[I]f the Court agrees that an incorrect

construction of the statutory phrase was used below, the

appropriate disposition is to remand the case to the court of

appeals for application either by that court or the district

court of the correct standard to the facts of this case." Id.

(emphasis added). Thus, even where the brief did mention the

district court, it did so only for the purpose of indicating that

the appropriate trier of fact should apply the law once it has

been adopted or clarified by this court (the court of appeals).

Even here the government's Supreme Court brief advocated a remand

to this court for reconsideration of the purely legal issue of

statutory interpretation. At no point did the government's

Supreme Court brief mention the possibility of introducing new

evidence at trial if it were to be remanded to the district

court. Finally, in the Conclusion section of its brief, the

government explicitly requested "a remand to the court of appeals

for further proceedings," not to the district court for a new

trial. See id. at 23. Given that the government sought a remand

to this court by the Supreme Court, the Court's simply worded

mandate that this court further consider our statutory

interpretation makes perfect sense.

19

and now confronts this court on remand. But that is just the

course the government now advocates with its Motion to Remand.

If we were to agree to an immediate remand to the

district court for the purpose of holding a retrial with

additional evidence, we would be disposing of the case in a

manner that was not presented to or contemplated by the Supreme

Court. Given that the Supreme Court did not consider the

government's requested disposition as an option, it ordered us to

further consider our prior interpretation of the child

pornography statute in light of the newly advanced standard

espoused by the government. If we fail to address the legal

issue directly presented by the Solicitor General's brief and the

Supreme Court mandate, then arguably we will be ignoring simple

instructions from our higher authority. Furthermore, in light of

our disposition upholding Knox's conviction after further

consideration, the issue of a remand to the district court for a

new trial is moot.

Finally, it is important to address another aspect of

the government's Motion to Remand. In several instances the

government argues that a remand to the district court is exactly

the remedy Knox sought in the Supreme Court in the event that the

Court agreed that we had adopted the wrong statutory standard.

However, Knox requested this disposition only in the Supreme

Court, not in this court, and only before the government proposed

a remand to the district court for the purpose of introducing

additional evidence during the retrial.

20

Knox sought a remand to the district court for a new

trial only if the Supreme Court adopted the government's

"discernible genitals" statutory standard, because in Knox's view

the record evidence does not support a conviction even under that

standard. Therefore, the government's position that the case

should be immediately remanded to the district court for a new

trial using additional evidence is not advanced in any fashion by

the fact that Knox sought a remand from the Supreme Court before

the government revealed it would attempt to introduce different

evidence in the event a new trial was granted. It is logical for

a convicted criminal defendant to seek the alternative remedy of

a remand for a new trial in the event an appellate court does not

agree that the conviction cannot stand because the evidence was

insufficient to convict. In this case, however, the Supreme

Court did not address the legal issue, instead leaving it for us

to address in the first instance.

Under these circumstances, Knox now opposes a remand to

the district court for a new trial using additional evidence and

it is not relevant that in the Supreme Court Knox requested a

remand to the district court as an alternative remedy to that of

an outright acquittal for insufficiency of evidence. See, e.g.,

Garcia v. United States, 469 U.S. 70, 79, 105 S. Ct. 479, 484

(1984) ("[P]rivate agreements between litigants, especially those

disowned, cannot relieve this Court of performance of its

judicial function. It is our responsibility to interpret the

intent of Congress . . . irrespective of petitioners' or

respondent's prior or present views."). Since we will deny the

21

government's Motion to Remand because granting it would violate

the Supreme Court's mandate, we need not address whether adopting

such a course would implicate double jeopardy concerns.

IV.

We now turn to the merits of the case on remand. The

Protection of Children Against Sexual Exploitation Act of 1977,

as subsequently amended, criminalizes knowingly receiving through

the mail visual depictions of a minor engaged in sexually

explicit conduct and knowingly possessing three or more

videotapes which contain a visual depiction of a minor engaging

in sexually explicit conduct. 18 U.S.C. § 2252(a)(2), (4).

"Sexually explicit conduct" for purposes of both of these

offenses is defined to include the "lascivious exhibition of the

genitals or pubic area." Id. § 2256(2)(E). In our prior

opinion, we held that the statute contains no nudity requirement

because the above quoted statutory phrase refers to a "lascivious

exhibition," not a nude or naked exhibition. Knox, 977 F.2d at

820. Our review of the relevant legislative history revealed

that Knox had not met his burden of demonstrating that Congress

clearly intended the statute only to proscribe nude or partially

nude displays of the genitals or pubic area. Id. at 820-21.

Because the meaning of the statutory phrase "lascivious

exhibition" under 18 U.S.C. § 2256(2)(E) poses a pure question of

law, our review is plenary. United States v. Brown, 862 F.2d

1033, 1036 (3d Cir. 1988).

22

Defendant Knox continues to assert that the genitals or

pubic area must be unclad or nude, and fully exposed to the

camera, before an exhibition may occur. Several amici parties,

including the amici Members of Congress, support our prior

statutory interpretation that no nudity is required. The

government contends that the pictorial representation of the

genitals or pubic area, covered only by underwear, a bikini

bathing suit, a leotard, or other abbreviated attire, constitutes

a lascivious exhibition if (1) those body parts are at least

somewhat visible in the videotapes, and (2) the minors were

engaged in conduct that can be judged "lascivious."

When interpreting a statute, the starting point is

always the language of the statute itself. American Tobacco Co.

v. Patterson, 456 U.S. 63, 68, 102 S. Ct. 1534, 1537 (1982).

Courts presume that Congress expressed its legislative intent

through the ordinary meaning of the words it chose to use,

Richards v. United States, 369 U.S. 1, 9, 82 S. Ct. 585, 591

(1962); Perrin v. United States, 444 U.S. 37, 42, 100 S. Ct. 311,

314 (1979), and if the statutory language is clear, it is not

necessary to glean congressional intent from legislative history,

TVA v. Hill, 437 U.S. 153, 184 n.29, 98 S. Ct. 2279, 2296 n.29

(1978); Barnes v. Cohen, 749 F.2d 1009, 1013 (3d Cir. 1984),

cert. denied, 471 U.S. 1061, 105 S. Ct. 2126 (1985). Thus, it is

axiomatic that when the statutory language is clear, the words

must be interpreted in accordance with their ordinary meaning.

Dewalt v. Sullivan, 963 F.2d 27, 30 (3d Cir. 1992). Only the

most extraordinary showing of contrary congressional intent may

23

justify altering the plain meaning of a statutory term. Malloy

v. Eichler, 860 F.2d 1179, 1183 (3d Cir. 1988).

Knox attempts to read a nudity requirement into a

statute which has none. The amended Protection of Children

Against Sexual Exploitation Act criminalizes the "lascivious

exhibition of the genitals or pubic area." 18 U.S.C.

§2256(2)(E). In ordinary legal usage, the word "exhibit" means

"[t]o show or display; to offer or present for inspection."

Black's Law Dictionary 573 (6th ed. 1990). The genitals or pubic

area need not be fully or partially nude in order to be shown or

put on display. This plain meaning of the term "exhibition" is

confirmed by reference to a popular dictionary of the English

language, which defines "exhibit" as "[t]o display; as: a. [t]o

present for consideration; set forth . . . . b. [t]o present to

view; to show, esp. in order to attract notice to what is

interesting or instructive," Webster's New International

Dictionary 893 (2d ed. 1959).

Despite our understanding that the ordinary meaning of

the term "exhibition" does not require nudity, the government

urges us to adopt an intermediate statutory standard which

requires that the depiction in question render the minor's

genitals or pubic area visible or discernible in some fashion in

order to constitute an exhibition. The government attempts to

provide support for its "discernible genitals" standard from the

plain meaning of the statutory terms and from the legislative

history. First, the government argues that the ordinary meaning

of the term "exhibition," as used in the statute, contemplates

24

that the genitals or pubic area of the minors depicted must be

visible or discernible in some fashion. Absent some visibility

or discernibility of the genitals or pubic area, the government

in effect agrees with Knox that the depiction is an exhibition of

the clothing covering the body parts, rather than an exhibition

of the body parts themselves.

In support of this reading of the statute, Knox makes

reference to an analogy between the depictions contained in the

Nather tapes and an art exhibition. He argues that a celebrated

piece of sculpture such as Michelangelo's David would not be

exhibited or on display at all if there was an opaque dropcloth

covering the sculpture from head to toe. The government in

essence agrees, although it concedes that there would be an

exhibition of the sculpture if the David's prominent features

were discernible or otherwise visible through the dropcloth.

We disagree with this reasoning because we believe that

the analogy entirely misses the mark. It may well be that if a

work of art is completely covered, any and all of its meaning and

value to an observer is lost. That is, any and all of the

magnificent qualities which one seeks from viewing the David are

destroyed by completely covering the statue. In this sense, the

completely covered work of art is not being exhibited. In

contrast, it is not true that by scantily and barely covering the

genitals of young girls that the display of the young girls in

seductive poses destroys the value of the poses to the viewer of

child pornography. Although the genitals are covered, the

display and focus on the young girls' genitals or pubic area

25

apparently still provides considerable interest and excitement

for the pedophile observer, or else there would not be a market

for the tapes in question in this case. Thus, the scantily clad

genitals or pubic area of young girls can be "exhibited" in the

ordinary sense of that word, and in fact were exhibited in the

tapes which are the subject of Knox's conviction. The analogy

made by Knox and the government to exhibitions of covered works

of art fails on its own terms.

In any event, we are not called on in this case to

interpret the imaginary statutory phrase "art exhibition."

Rather, we are called upon to decipher Congress' intent

concerning the statutory phrase "lascivious exhibition of the

genitals or pubic area" as used in the federal child pornography

statute, 18 U.S.C. § 2256(2)(E). Thus, we must focus not on what

would or would not constitute an art exhibition, but rather on

whether the ordinary meaning of the term "lascivious exhibition"

includes the fully covered genitals or pubic area of minor

children.

In pursuing this task, we believe the principle that

"[w]ords take on meaning in the company of other words," St.

Surin v. Virgin Islands Daily News, Inc., No. 93-7553, slip op.

at 13 (3d Cir. Apr. 15, 1994), is relevant when interpreting

terms contained in a statute which Congress passed to curb a

particular evil. See Deal v. United States, __ U.S. __, __, 113

S. Ct. 1993, 1996 (1993) (it is a "fundamental principle of

statutory construction (and, indeed, of language itself) that the

meaning of a word cannot be determined in isolation, but must be

26

drawn from the context in which it is used"). As discussed more

fully below, Congress aimed the federal child pornography statute

at combatting "the use of children as subjects of pornographic

materials[, which] is harmful to the physiological, emotional,

and mental health of the child." New York v. Ferber, 458 U.S.

747, 758, 102 S. Ct. 3348, 3355 (1982); see also id. at 758 n.9,

102 S. Ct. at 3355 n.9. In so doing, Congress defined the

"lascivious exhibition of genitals or pubic area" as one variety

of "sexually explicit conduct" proscribed by the statute. Thus,

we find it more meaningful to focus on the ordinary meaning of

the statutory term "lascivious exhibition," rather than simply

focusing on the term "exhibition" divorced entirely from the

context in which it was used.

The term "lascivious" is defined as "[t]ending to

excite lust; lewd; indecent; obscene; sexual impurity; tending to

deprave the morals in respect to sexual relations; licentious."

Black's Law Dictionary 882 (6th ed. 1990). Hence, as used in the

child pornography statute, the ordinary meaning of the phrase

"lascivious exhibition" means a depiction which displays or

brings forth to view in order to attract notice to the genitals

or pubic area of children, in order to excite lustfulness or

sexual stimulation in the viewer. Such a definition does not

contain any requirement of nudity, and accords with the multi-

factor test announced in United States v. Dost0 for determining

0

636 F. Supp. 828 (S.D. Cal. 1986), aff'd sub nom. United States

v. Wiegand, 812 F.2d 1239 (9th Cir.), cert. denied, 484 U.S. 856,

108 S. Ct. 164 (1987). The Dost factors were articulated in order

to provide a more concrete test for determining whether a visual

27

whether certain material falls within the definition of 18 U.S.C.

§ 2256(E)(2). Nor does such a definition contain or suggest a

requirement that the contours of the genitals or pubic area be

discernible or otherwise visible through the child subject's

clothing.

The genitals and pubic area of the young girls in the

Nather tapes were certainly "on display" as the camera focused

for prolonged time intervals on close-up views of these body

depiction of a minor constitutes a "lascivious exhibition of the

genitals or pubic area" under 18 U.S.C. § 2256(2)(E):

1) whether the focal point of the visual depiction is

on the child's genitalia or pubic area;

2) whether the setting of the visual depiction is

sexually suggestive, i.e., in a place or pose generally

associated with sexual activity;

3) whether the child is depicted in an unnatural pose,

or in inappropriate attire, considering the age of the

child;

4) whether the child is fully or partially clothed, or

nude;

5) whether the visual depiction suggests sexual coyness

or a willingness to engage in sexual activity;

6) whether the visual depiction is intended or designed

to elicit a sexual response in the viewer.

636 F. Supp. at 832. The court readily admitted that this list

is not exhaustive as other factors may be relevant in particular

cases. Id.

We formally adopted the Dost factors as the relevant

test for determining lasciviousness in United States v. Villard,

885 F.2d 117, 122 (3d Cir. 1989). The analysis is qualitative

and no single factor is dispositive. Id. Other federal courts

have also relied on the Dost factors for this purpose. See

United States v. Arvin, 900 F.2d 1385, 1390-91 & n.4 (9th Cir.

1990), cert. denied, 498 U.S. 1024, 111 S. Ct. 672 (1991); United

States v. Wolf, 890 F.2d 241, 244-46 (10th Cir. 1989); United

States v. Rubio, 834 F.2d 442, 448 (5th Cir. 1987) (discussing

the six Dost factors without citing to the Dost case); United

States v. Nolan, 818 F.2d 1015, 1019 n.5 (1st Cir. 1987); United

States v. Mr. A., 756 F. Supp. 326, 328-29 (E.D. Mich. 1991).

28

parts through their thin but opaque clothing. Additionally, the

obvious purpose and inevitable effect of the videotape was to

"attract notice" specifically to the genitalia and pubic area.

Applying the plain meaning of the term "lascivious exhibition"

leads to the conclusion that nudity or discernibility are not

prerequisites for the occurrence of an exhibition within the

meaning of the federal child pornography statute.0

Our task of further examining the statutory language in

light of the Solicitor General's position also requires us to

address whether in our prior opinion we overlooked a requirement

that the minor subjects be engaged in conduct that can be judged

"lascivious." According to the government, this interpretation

of the statute is made necessary by the statutory language of 18

U.S.C. § 2252(a)(2)(A) and (a)(4)(B)(i), which criminalize the

possession of material depicting "the use of a minor engaging in

sexually explicit conduct." Id. (emphasis added). Since

"sexually explicit conduct" is defined to include "actual or

simulated lascivious exhibition of the genitals or pubic area of

any person," id. § 2256(2)(E), the government concludes that

depictions "come within the statute only if they show minors

engaged in the conduct of lasciviously exhibiting their (or

0

We note that were we to agree with the government that the

correct statutory standard requires the minor subject's genitals

or pubic area to be discernible through his or her clothing, we

would have no trouble upholding Knox's conviction. We have

viewed the Nather tapes. In several sequences, the photographer

has focused unnaturally on the genitals of the young girls in

close-up shots which reveal the outer contours of the genitals

through their tight bathing suits, leotards, or underwear.

29

someone else's) genitals or pubic areas." Gov't Sup. Ct. Brief

(Sept. 1993) at 13.

In its brief after remand, the government recedes

somewhat from the view implied by its Supreme Court brief that

the depiction must show the child subject to have some lascivious

intent. The government now argues only that the material must

depict some conduct by the child subject, which includes a

"lascivious exhibition of the genitals or pubic area," and which

appeals to the lascivious interest of some potential audience.

Although the government maintains that we did not address this

aspect of the statute, and that a complete statutory

interpretation should include this element, it argues that "the

tapes in this case easily meet that requirement of the statute."

Gov't Brief (March 1994) at 15.

The government is correct that in our prior opinion we

did not specifically address this aspect of the statute. We did

not do so because neither Knox nor the government presented for

review or argued this aspect of the statute as something the

court needed to address in order to decide the case. Upon

consideration of the meaning of this statutory language, we

reject any contention, whether implied by the government or not,

that the child subject must be shown to have engaged in sexually

explicit conduct with a lascivious intent.

In United States v. Wiegand, 812 F.2d 1239, 1244-45

(9th Cir.), cert. denied, 484 U.S. 856, 108 S. Ct. 164 (1987),

the Court of Appeals for the Ninth Circuit addressed this very

question. The court stated:

30

In the context of the statute applied to the conduct of

children, lasciviousness is not a characteristic of the

child photographed but of the exhibition which the

photographer sets up for an audience that consists of

himself or like-minded pedophiles. . . . The picture

of a child "engaged in sexually explicit conduct"

within the meaning of 18 U.S.C. §§ 2251 and 2252 as

defined by [§ 2256(2)(E)] is a picture of a child's sex

organs displayed lasciviously--that is, so presented by

the photographer as to arouse or satisfy the sexual

cravings of a voyeur.

Id. at 1244. See also United States v. Cross, 928 F.2d 1030,

1042-43 n.34 (11th Cir. 1991), cert. denied, __ U.S. __, 112 S.

Ct. 594 (1991), and __ U.S. __, 112 S. Ct. 941 (1992); Arvin, 900

F.2d at 1389; Mr. A., 756 F. Supp. at 329; United States v.

McCormick, 675 F. Supp. 223, 224 (M.D. Pa. 1987).

Children posing for pornographic pictures may suffer

dramatic harm regardless of whether they have an "adult" look of

sexual invitation or coyness on their face. Therefore, we adhere

to the view that "lasciviousness" is an inquiry that the finder

of fact must make using the Dost factors and any other relevant

factors given the particularities of the case, which does not

involve an inquiry concerning the intent of the child subject.

Our interpretation of the "lasciviousness" element is consistent

with the plain meaning of the statute and furthers Congress'

intent in eradicating the pervasive harm children experience when

subjected to posing for pornographic purposes.

Thus, we conclude that a "lascivious exhibition of the

genitals or pubic area" of a minor necessarily requires only that

the material depict some "sexually explicit conduct" by the minor

subject which appeals to the lascivious interest of the intended

audience. Applying this standard in the present case, it is

31

readily apparent that the tapes in evidence violate the statute.

In several sequences, the minor subjects, clad only in very tight

leotards, panties, or bathing suits, were shown specifically

spreading or extending their legs to make their genital and pubic

region entirely visible to the viewer. In some of these poses,

the child subject was shown dancing or gyrating in a fashion

indicative of adult sexual relations. Nearly all of these scenes

were shot in an outdoor playground or park setting where children

are normally found. Although none of these factors is alone

dispositive, the totality of these factors lead us to conclude

that the minor subjects were engaged in conduct--namely, the

exhibition of their genitals or pubic area--which would appeal to

the lascivious interest of an audience of pedophiles.

Since the statutory language does not suggest that a

nude exhibition is necessary, Knox bears the burden of

demonstrating a clear contrary congressional intent to warrant

importing into the statute an unexpressed requirement of nudity.

See Malloy, 860 F.2d at 1183. In our prior opinion, we reviewed

the legislative history and concluded that it supported our

interpretation of the statutory language. See United States v.

Knox, 977 F.2d 815, 820-21 (3d Cir. 1992), vacated and remanded,

__ U.S. __, 114 S. Ct. 375 (1993). After further examining the

relevant legislative history, however, we conclude that it is

wholly silent as to whether Congress intended the statutory term

"lascivious exhibition of the genitals or pubic area" to

encompass non-nude depictions of these body parts.

32

The legislative proposal before the original child

pornography statute was enacted in 1977 would have proscribed

"nudity, which nudity is depicted for the purpose of sexual

stimulation or gratification of any individual who may view such

depiction." S. 1011, 95th Cong., 2nd Sess. (1977). Since

Congress considered including nudity as an element of a criminal

depiction, we continue to believe that the decision to eliminate

this requirement must be deemed intentional. Thus, when Congress

passed the 1977 Act prohibiting a "lewd exhibition of the

genitals or pubic area of any person," it may have desired to

criminalize both clothed and unclothed visual images of a child's

genitalia if they were lewd.0 Clearly, Congress could have

expressly limited the statute's scope to encompass only naked

displays by prohibiting the "lascivious exhibition of the nude

genitals or pubic area of any person." But this is not the

language Congress included in the statute.0

0

A subsequent amendment, the Child Protection Act of 1984,

replaced "lewd" with the word "lascivious," but the two words

have nearly identical meanings. United States v. Wiegand, 812

F.2d 1239, 1243 (9th Cir.), cert. denied, 484 U.S. 856, 108 S.Ct.

164 (1987).

0

Furthermore, Congress failed to articulate anywhere in its

extensive legislative history any desire that the statute, as

enacted, prohibit only nude portrayals, or only depictions in

which the minor subject's genitals or pubic area are discernible

or at least somewhat visible. See H.R. Rep. No. 99-910, 99th

Cong., 2nd Sess. (1986), reprinted in 1986 U.S.C.C.A.N. 5952-59;

S. Rep. No. 98-169, 98th Cong., 2nd Sess. (1983), reprinted in

1984 U.S.C.C.A.N. 492; H.R. Rep. No. 98-536, 98th Cong., 2nd

Sess. (1983); S. Rep. No. 95-438, 95th Cong., 2nd Sess. (1977),

reprinted in 1978 U.S.C.C.A.N. 40-68; H.R. Rep. No. 95-696, 95th

Cong., 2nd Sess. (1977), reprinted in 1978 U.S.C.C.A.N. 69-71;

H.R. Conf. Rep. 99-910, 99th Cong., 2nd Sess. (1977).

33

Appellant Knox and the government, however, rely on a

letter from the Justice Department outlining its views concerning

S. 1001, the original proposed bill (containing the nudity

language), as evidence that Congress assumed that an exhibition

meant a nude, or as the government contends at least a

discernible, exhibition of the genitals or pubic area. See

Protection of Children Against Sexual Exploitation: Hearings

before the Subcomm. to Investigate Juvenile Delinquency of the

Comm. of the Judiciary, 95th Cong., 1st Sess. 77-78 (1977),

reprinted in 1978 U.S.C.C.A.N. 63 (letter from Patricia M. Wald,

Assistant Attorney General to James O. Eastland, Chairman,

Committee of the Judiciary). After suggesting that "lewd

exhibition of the genitals" replace the proposed nudity language,

the Assistant Attorney General stated, "Congress could make clear

in the legislative history of the bill what types of nude

portrayals of children were intended to be encompassed within

this definition." Id. Upon reexamination, we believe there are

two plausible interpretations of this letter and, thus, we

conclude that it is not helpful in determining Congress' intent.

Under the first interpretation, which we adopted in our

prior opinion, the Wald letter assumes that Congress only desired

to prohibit nude exhibitions because at that time the language of

the proposed bill included the word "nudity." By subsequently

eliminating the word "nudity," Congress appears to have

repudiated its earlier intention to confine the statute's

coverage to nude exhibitions. Alternatively, it is arguably

significant that the language suggesting that Congress clarify

34

what types of nude portrayals would be prohibited was contained

in the very letter recommending the substitution of the phrase

"lewd exhibition of the genitals" for the original nudity

language. Protection of Children, supra, 95th Cong., 1st Sess.

77-78. In light of this legislative history, Knox and the

government submit that Congress omitted any reference to nudity

in the statute by replacing it with the phrase "lewd exhibition

of the genitals or pubic area," which does not encompass any

depiction of completely clothed, or non-discernible, genitals or

pubic area.

Because we find both interpretations of this letter

plausible, and the legislative history in toto to be silent as to

whether Congress intended the statute to reach non-nude

depictions, we do not rely on it in adhering to our prior

statutory interpretation.0 We conclude that Knox has not met his

0

Nor do we rely on the legislative pronouncements concerning this

statute and case recently passed by both houses of Congress. On

November 4, 1993, the Senate unanimously adopted an amendment to

an unrelated bill confirming "the intent of Congress" that 18

U.S.C. § 2256(2)(E) "is not limited to nude exhibitions or

exhibitions in which the outlines of those areas [are]

discernible through clothing." 139 Cong. Rec. S14,976 (Daily

ed., Nov. 4, 1993). Subsequently on April 20, 1994, the House of

Representatives passed by a vote of 425-3 a similar nonbinding

resolution expressing the sense of Congress that "the Department

of Justice has used its brief in the Knox case as a vehicle for

reinterpretation of the child pornography laws in contravention

to legislative history," and that "Congress specifically

repudiated a nudity requirement for child pornography statutes."

140 Cong. Rec. H2536 (Daily ed., Apr. 20, 1994).

These resolutions are post-enactment legislative

history which should be given little, if any, weight because they

do not necessarily reflect the intent of the members of Congress

who originally enacted the statutory language. As Justice Scalia

stated concerning subsequent legislative history:

35

burden of proving that Congress intended the statute to reach

only a nude "lascivious exhibition of the genitals or pubic

area." Thus, we will not read a nudity requirement into a

statute that has none.

The underlying rationale for the federal child

pornography laws also supports the conclusion that clothed

exhibitions of the genitalia are proscribed. When an obscenity

statute is challenged as unconstitutional under the First

Amendment, the Supreme Court balances the government's interest

in protecting the sensibilities of unwilling recipients from

exposure to pornography against the dangers of government

censorship. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607

"Subsequent legislative history"--which presumably

means the post-enactment history of a statute's

consideration and enactment--is a contradiction in

terms. The phrase is used to smuggle into judicial

consideration legislators' expressions not of what a

bill currently under consideration means (which, the

theory goes, reflects what their colleagues understood

they were voting for), but of what a law previously

enacted means.

. . .

Arguments based on subsequent legislative history,

like arguments based on antecedent futurity, should not

be taken seriously, not even in a footnote.

Sullivan v. Finkelstein, 496 U.S. 617, 631-32, 110 S. Ct. 2658,

2667 (1990) (Scalia, J, concurring in part).

The language of the child pornography statute at issue

in this case was enacted in 1977, and amended in 1984. Since

that time there has been such a large turnover in Congress that a

majority of the legislators who voted for the recent legislative

pronouncements had no role in the passage of the original

statute. Thus, we do not consider the subsequent legislative

history as providing any indication that the enacting Congress

intended the scope of the child pornography statute to cover non-

nude depictions.

36

(1973). Because the government interest, although legitimate, is

not compelling, regulation of obscene materials is limited to

works which "appeal to the prurient interest in sex, which

portray sexual conduct in a patently offensive way, and which,

taken as a whole, do not have serious literary, artistic,

political, or scientific value." Id. at 24, 93 S. Ct. at 2615.

The Supreme Court allows the states and Congress

greater leeway to regulate and proscribe pornography that depicts

minors as distinguished from adults since the harmful effects

suffered by a child are palpably more severe. New York v.

Ferber, 458 U.S. 747, 756-61, 102 S. Ct. 3348, 3354-57 (1982).

The Court relaxes the Miller obscenity test when pornographic

material portrays minors since the government's interest in

"safeguarding the physical and psychological well-being of a

minor" is "compelling." Id. at 756-57, 102 S. Ct. at 3354

(quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596,

607, 102 S. Ct. 2613, 2620 (1982)). The use of children as

subjects of pornographic materials is harmful to the

physiological, emotional, and mental health of the child. Id. at

757, 102 S. Ct. at 3355; Osborne v. Ohio, 495 U.S. 103, 109, 110

S. Ct. 1691, 1696 (1990). The psychological effect of visually

recording the sexual exploitation of a child is devastating and

its elimination is of "surpassing importance." Ferber, 458 U.S.

at 757, 102 S. Ct. at 3355. Since the child's image is

permanently recorded, the pornography may haunt him or her for a

lifetime because the child will be aware that the offensive

photograph or film is circulating through the masses. Id. at 759

37

n.10, 102 S. Ct. at 3355 n.10 (quoting Shouvlin, Preventing the

Sexual Exploitation of Children: A Model Act, 17 Wake Forest L.

Rev. 535, 545 (1981)). The crime is the affront to the dignity

and privacy of the child and the exploitation of the child's

vulnerability:

Human dignity is offended by the pornographer. American

law does not protect all human dignity; legally, an

adult can consent to its diminishment. When a child is

made the target of the pornographer-photographer, the

statute will not suffer the insult to the human spirit,

that the child should be treated as a thing.

United States v. Wiegand, 812 F.2d 1239, 1245 (9th Cir.), cert.

denied, 484 U.S. 856, 108 S. Ct. 164 (1987). Additionally,

controlling the production and dissemination of child pornography

is of paramount importance since pedophiles often use child

pornography to seduce other children into performing sexual acts.

Osborne, 495 U.S. at 111, 110 S. Ct. at 1697.

To vindicate the compelling government interest in

protecting the safety and welfare of children, not only is the

spectrum of constitutionally unprotected pornographic material

broader when the subjects are children rather than adults, but

also the arsenal of available enforcement mechanisms is more

extensive. For instance, the mere possession of child

pornography, even in one's home, may be criminalized although

only distribution of obscenity depicting adults can be

proscribed. Compare Stanley v. Georgia, 394 U.S. 557, 568, 89 S.

Ct. 1243, 1249 (1969) (Georgia statute outlawing private

possession of obscenity violates the First Amendment) with

Osborne, 495 U.S. at 108, 110 S. Ct. at 1695-97 (Ohio statute

38

criminalizing possession of child pornography upheld against

First Amendment challenge due to the compelling interest in

protecting minors).

The harm Congress attempted to eradicate by enacting

the child pornography laws is present when a photographer

unnaturally focuses on a minor child's clothed genital area with

the obvious intent to produce an image sexually arousing to

pedophiles. The child is treated as a sexual object and the

permanent record of this embarrassing and humiliating experience

produces the same detrimental effects to the mental health of the

child as a nude portrayal. The rationale underlying the

statute's proscription applies equally to any lascivious

exhibition of the genitals or pubic area whether these areas are

clad or completely exposed.

Knox next asserts that our decision in United States v.

Villard, 885 F.2d 117 (3d Cir. 1989), mandates that the genitals

or pubic area be exposed before an exhibition may occur. In

Villard, we stated that "more than merely nudity" was required

for a violation of the statute; otherwise, "inclusion of the term

`lascivious' would be meaningless." Id. at 121. The requirement

of more than mere nudity does not mean, as Knox contends, that

nudity is a prerequisite to the existence of an exhibition;

rather, Villard simply stated the obvious principle that nudity

alone is insufficient to constitute a lascivious exhibition. No

one seriously could think that a Renoir painting of a nude woman

or an innocuous family snapshot of a naked child in the bathtub

violates the child pornography laws. Nudity must be coupled with

39

other circumstances that make the visual depiction lascivious or

sexually provocative in order to fall within the parameters of

the statute. Such was our holding in Villard, which addressed

whether sufficient evidence existed to justify a finding of

lasciviousness.

In our prior opinion we went on to state that our

holding in Villard provides support for our conclusion that a

"lascivious exhibition" includes non-nude depictions of a minor's

genitals or pubic area. See Knox, 977 F.2d at 822-23. We came

to that conclusion because inclusion of the fourth Dost factor,

"whether the child is fully or partially clothed, or nude,"

seemed to "rest[] on the implicit assumption that a clothed

exhibition of the genitals is criminalized under the statute."

Id. at 823. Knox argues that our reliance on this authority was

misplaced because the determination of whether a certain

depiction visually displays the minor subject's genitals or pubic

area is a threshold inquiry required by the language of the

statute itself, whereas consideration of the Dost factors is

relevant only for the later determination of whether that

depiction is lascivious. See United States v. Arvin, 900 F.2d

1385, 1391 (9th Cir.), cert. denied, 498 U.S. 1024, 111 S. Ct.

672 (1991). Knox further contends that it is possible for a

minor subject to be fully clothed and still exhibit his or her

fully exposed genitals--e.g., a well directed side-angle camera

shot could reveal the genitals through an opening in the

subject's shorts or skirt.

40

Upon further consideration, we agree with Knox and the

Arvin court that the question whether the depiction at issue

visually exhibits the genitals or pubic area is a threshold

determination not necessarily guided by the Dost factors.

However, we do not agree that the Dost factors are completely

irrelevant to this threshold determination. For instance, the

first Dost factor, "whether the focal point of the visual

depiction is on the child's genitalia or pubic area," 636 F.

Supp. at 832, may play an important role in the determination of

whether the child subject's genitals or pubic area are on exhibit

within the meaning of the statute. Nevertheless, although the

fourth Dost factor arguably provides no support for our

interpretation of the statute as reaching lascivious depictions

of a child's fully covered genitals or pubic area, it is clearly

not inconsistent with that interpretation.

After giving further consideration to the language of

the statute, its legislative history, the underlying rationale

for the federal child pornography laws, and the brief of

Solicitor General submitted on behalf of the United States, we

hold that the statutory term "lascivious exhibition of the

genitals or pubic area," as used in 18 U.S.C. § 2256(2)(E), does

not contain any requirement that the child subject's genitals or

pubic area be fully or partially exposed or discernible through

his or her opaque clothing. The statutory language is clear and

contains no ambiguity. Therefore, the rule of lenity should not

be applied to defeat the clear intent of Congress to prohibit the

possession of child pornography to the maximum extent allowable

41

under the Constitution. See, e.g., National Org. for Women, Inc.

v. Scheidler, __ U.S. __, __, 114 S. Ct. 798, 806 (1994) ("the

rule of lenity applies only when an ambiguity is present; 'it is

not used to beget one'" (quoting United States v. Turkette, 452

U.S. 576, 587-88 n.10, 101 S. Ct. 2524, 2531 n.10 (1981));

Liparota v. United States, 471 U.S. 419, 427, 105 S. Ct. 2084,

2089 (1985) ("the rule of lenity is not to be applied where to do

so would conflict with the implied or expressed intent of

Congress"); United States v. Bramblett, 348 U.S. 503, 509-10, 75

S. Ct. 504, 508 (1955).0

V.

0

Knox contends that because his prosecution and conviction for

violating the federal child pornography laws was the first

involving materials which contain absolutely no nudity, the rule

of lenity must be applied. At the outset, we repeat that the

rule of lenity does not apply in this case because the statutory

language contains no ambiguity. We also reject this contention

because it misconceives the object of the rule of lenity and

would produce an absurd result. First, the application of the

rule of lenity is not dependent whatsoever on whether there have

been successful prosecutions under the statute at issue. Cf.,

e.g., Ratzlaf v. United States, __ U.S. __, __, 114 S. Ct. 655,

662-63 (1994) (Court applied the rule of lenity because of an

ambiguity in the statute, even though there had been many

previous successful prosecutions under the statute). The rule of

lenity "'comes into operation at the end of the process of

construing what Congress has expressed, not at the beginning as

an overriding consideration of being lenient to wrong-doers.'"

Russello v. United States, 464 U.S. 16, 29, 104 S. Ct. 296, 303

(1983) (quoting Callanan v. United States, 364 U.S. 587, 596, 81

S. Ct. 321, 326 (1961)); see also United States v. Pollen, 978

F.2d 78, 85 (3d Cir. 1992), cert. denied, __ U.S. __, 113 S. Ct.

2332 (1993). Second, if we were to agree with Knox's argument,

then the government would never be able to successfully prosecute

a person for violating a newly enacted criminal statute, nor

would the government be able to successfully proceed under a

theory different from that which has yielded convictions in the

past.

42

Interpreting an "exhibition of the genitals or pubic

area" to include a clothed display of these areas does not render

the statute unconstitutionally overbroad.0 The function of the

First Amendment overbreadth doctrine is to prevent broadly worded

statutes which control constitutionally unprotected conduct from

deterring constitutionally protected expression. Invalidating a

statute as overbroad, however, is an exceptional remedy and

should be employed sparingly and only as a last resort since it

is "strong medicine." Broadrick v. Oklahoma, 413 U.S. 601, 613,

93 S. Ct. 2908, 2916 (1973). Before a child pornography statute

is declared unconstitutional, the overbreadth must "not only be

real, but substantial as well, judged in relation to the

statute's plainly legitimate sweep." Id. at 615, 93 S. Ct. at

2918. The requirement of substantial overbreadth is equally

applicable to challenges that arise in defense of a criminal

prosecution. Ferber, 458 U.S. at 772-74, 102 S. Ct. at 3363.

In Ferber, the Supreme Court held that the New York

statute which criminalized the "lewd exhibition of the genitals"

was not constitutionally overbroad. Id. Although some protected

expression, ranging from medical textbooks to National Geographic

photographs, could possibly be reached by the statute, this tiny

fraction of materials within the statute's coverage could be

protected by case-by-case analysis. Id. Furthermore, the

Supreme Court has repeatedly emphasized that the constitutional

0

The term "pubic area" cannot be challenged as vague or overbroad

since Knox contends, and we agree, that this phrase describes a

precise anatomical region.

43

rights of adults to obtain, possess, or use sexually explicit

material may be limited in order to protect children from

exposure to these materials and from sexual exploitation. See

Ginsberg v. New York, 390 U.S. 629, 634-43, 88 S. Ct. 1274, 1277-

82 (1968) (the right to publish and distribute non-obscene

material may be limited by banning its sale to minors); Ferber,

458 U.S. at 756, 102 S. Ct. at 3354 ("States are entitled to

greater leeway in the regulation of pornographic depictions of

children" than in protecting against obscenity).

Knox's prediction that our interpretation of an

exhibition will result in prosecutors leafing through family

albums and church bulletins containing innocent pictures of fully

clothed children and pressing charges is unfounded. The limiting

principle in the statute is the requirement of lasciviousness.0 A

visual depiction of a child subject's genitals or pubic area,

whether the child is clothed or naked, must be lascivious in

order to be proscribed. Whether a depiction is lascivious is

essentially an inquiry into whether or not the material meets the

standard of lasciviousness as guided by the Dost factors.

Villard, 885 F.2d at 122; see supra note 10. Only a minuscule

fraction of all pictures of minor children will be sufficiently

sexually suggestive and unnaturally focused on the genitalia to

qualify as lascivious. Even fewer images where a minor's genital

0

The issue is not raised in this case, but we note that although

the meaning of lasciviousness is far from crystal clear, it is

not unconstitutionally vague or overbroad. See United States v.

O'Malley, 854 F.2d 1085, 1086-87 (8th Cir. 1988); Wiegand, 812

F.2d at 1243.

44

area is not fully exposed will constitute lascivious exhibitions

since the fact that a child's genital area is covered is a factor

militating against a finding of lasciviousness. Thus, including

scantily clothed displays of the genitals within the meaning of

an exhibition leaves the statute "directed at the hard core of

child pornography," Ferber, 458 U.S. at 773, 102 S. Ct. at 3363,

which results in leaving an indelible psychological scar on the

exploited child. Our interpretation simply declines to create an

absolute immunity for pornographers who pander to pedophiles by

using as their subjects children whose genital areas are barely

covered.

VI.

On remand, Knox again contends that insufficient

evidence was presented at trial for a trier of fact to have

found, beyond a reasonable doubt, that (1) the Nather tapes

traveled through the mail in interstate commerce; and (2) Knox

"knowingly" received child pornography through the mail and

"knowingly" possessed three pornographic videotapes. Generally,

this court must examine the evidence as a whole in the light most

favorable to the government, and must sustain a conviction if

there is substantial evidence to support it. United States v.

Carr, No. 93-1796, 1994 WL 237007, at *4-5 (3d Cir. June 3,

1994). When we previously rejected Knox's arguments on this

point, we noted that Knox had not timely filed his post-trial

motion for acquittal, and thus indicated that the sufficiency of

evidence issues might be reviewed only for plain error. Knox,

45

977 F.2d at 824. Nevertheless, we concluded that we did not need

to determine whether "the plain error test and the sufficiency of

evidence standard are essentially equivalent inquiries" because

the government fulfilled the more stringent standard of

establishing that the evidence was sufficient "to support the

district court's finding that the Nather tapes traveled through

the mail and that Knox knowingly received and possessed those

films." Id.

In its brief submitted to the Supreme Court, the

government indicated that we were mistaken in reviewing the

evidence only for plain error. Gov't Sup. Ct. Brief (Sept. 1993)

at 21-22 n.10. We acknowledge that the analysis following our

introductory paragraph quoted above was somewhat unclear as to

whether we were applying the plain error or sufficiency of

evidence test. We now clarify the conclusion expressed in our

prior opinion that the government did indeed introduce sufficient

evidence for the district court to conclude beyond a reasonable

doubt that Knox knowingly received the Nather films and that

those films traveled through the mail.

To establish interstate mailing, the government

introduced evidence that Knox rented a mailbox under a fictitious

name and that he received other pornographic materials at that

mailbox. When agents searched Knox's apartment pursuant to a

valid search warrant, they discovered advertisements from Nather

with checkmarks next to several videotapes and envelopes, pre-

addressed to Nather, with forms to order Nather tapes. One of

the videos marked in the catalog was included as a segment of a

46

compilation tape found in Knox's apartment. A carbon copy of a

$62 money order payable to Nather was also seized from Knox's

apartment. Sixty-two dollars is the approximate price of a

single Nather tape. Knox is correct that the government never

introduced direct evidence that Nather mailed tapes to Knox's

rented mailbox. A trier of fact, however, may consider direct

and circumstantial evidence and the reasonable inferences to be

drawn therefrom.

The above facts provide strong circumstantial support

that Nather, a Nevada mail order video company without any

offices in Pennsylvania, at some point utilized the postal system

to cause the tapes it distributes to be discovered in Knox's

apartment in Pennsylvania. Cf. Turner v. United States, 396 U.S.

398, 415-17, 90 S. Ct. 642, 652-53 (1970) (although some heroin

is produced in this country, the vast majority of heroin is

produced abroad; thus, jury could permissibly infer, beyond a

reasonable doubt, that defendant possessed a smuggled drug). The

circumstantial evidence was sufficient for the district court to

conclude beyond a reasonable doubt that the Nather films traveled

through the interstate mails.

The record also contains sufficient evidence for the

district court to conclude beyond a reasonable doubt that Knox

"knowingly" received and possessed the Nather tapes. Knox

maintains that the absence of nudity in the films and the

disclaimers in the Nather brochures that the videos were legal to

purchase and own disproves the mens rea element of § 2252. We

have previously held that the mens rea requirement of § 2252

47

"does not require that a recipient of child pornography know the

precise contents of such materials." United States v. Brown, 862

F.2d 1033, 1036 (3d Cir. 1988). In Brown, the defendant ordered

one film, but accidentally received a different tape. Since the

defendant knew the video he requested was child pornography, we

deemed it irrelevant that he did not know the exact contents of

the substituted tape actually mailed to him.

Knox's argument in this case is somewhat different. He

claims that although he knew the contents of the Nather tapes, he

was unaware that the videos were child pornography and believed

they were legal to own. To address this contention, we look to

the Supreme Court's interpretation of a strikingly similar

statute for guidance. To fulfill the "knowingly" requirement of

18 U.S.C. § 1461 (the obscenity law concerning adults),0 the

Supreme Court held that the prosecution need only show that the

defendant had knowledge of the contents, character, and nature of

the materials. Hamling v. United States, 418 U.S. 87, 123, 94 S.

Ct. 2887, 2910 (1974). To require proof that the defendant knew

the materials were obscene, and thus illegal to distribute, would

allow defendants to avoid prosecution by claiming ignorance of

the relevant law. Id. It would be ironic to construe the same

word, "knowingly," in the analogous child pornography law as more

lenient to criminal defendants since the purpose for enacting the

0

Title 18 U.S.C. § 1461 provides in pertinent part: "Whoever

knowingly uses the mails for the mailing, carriage in the mails,

or delivery of anything declared by this section . . . to be

nonmailable . . . shall be fined not more than $5,000 or

imprisoned not more than five years, or both . . . ."

48

child pornography statute was to create more stringent regulation

for child pornography than already existed through the generally

applicable obscenity laws. Therefore, to fulfill the knowledge

element of § 2252, a defendant simply must be aware of the

general nature and character of the material and need not know

that the portrayals are illegal. See United States v. Moncini,

882 F.2d 401, 404 (9th Cir. 1989) (no need to prove knowledge of

illegality under § 2252); United States v. Tolczeki, 614 F. Supp.

1424, 1429 (N.D. Ohio 1985) (same). The child pornography laws

would be eviscerated if a pedophile's personal opinion about the

legality of sexually explicit videos was transformed into the

applicable law.

There is no doubt that Knox was aware of the nature of

the Nather tapes when he received them. Newsletters from Nather

found in Knox's apartment described the contents of the films--

"girls between the ages of 11 and 17 showing so much panty and

ass you'll get dizzy . . . so revealing it's almost like seeing

them naked"--and the video's intended effects--"Sassy Sylphs will

blow your mind so completely you'll be begging for mercy." Knox

handwrote his own descriptions of the Nather films on the outside

of the boxes. For instance, on the Nather II tape, Knox wrote

"13-year old flashes" followed by "hot." Knox characterizes the

second vignette as "15 year old shows nipple." Both Nather's and

Knox's descriptions of the tapes clearly demonstrate that Knox

was aware that the videotapes contained sexually oriented

materials designed to sexually arouse a pedophile. Sufficient

evidence was presented at the bench trial to support a finding

49

that Knox was aware of the nature of the Nather tapes, and

therefore knowingly possessed and received them.

Even if a reasonable mistake as to the legality of the

material was recognized as a defense, the language of the statute

is clear that nudity is not a prerequisite for a lascivious

exhibition. Additionally, relying on Nather's disclaimer is

tantamount to asking a hard core pornographer for legal advice as

to whether the material he earns a living by selling is legal.

Nather's disclaimer could not reasonably lead Knox to believe

that the videotapes were legal. If anything, the need to profess

legality should have alerted Knox to the films' dubious legality.

VII.

In sum, after further consideration of the statutory

language, legislative history, the purpose of Congress in passing

the federal child pornography statute, and the Solicitor

General's brief submitted in the Supreme Court, we hold that a

"lascivious exhibition of the genitals or pubic area" pursuant to

18 U.S.C. § 2256(2)(E) encompasses visual depictions of a child's

genitals or pubic area even when these areas are covered by an

article of clothing and are not discernible. Our interpretation

of the statutory language does not render the statute

unconstitutionally overbroad since the requirement of

lasciviousness limits the proscribed depictions to

constitutionally unprotected expression. Finally, there was

sufficient record evidence for the district court to conclude

50

beyond a reasonable doubt that Knox knowingly received and

possessed the videotapes and that the films traveled through

interstate mail. The judgment of conviction will therefore be

affirmed.

51