Opposition Brief — Antonio Dickerson, aka Girbaud, Petitioner v. United States

Supreme Court briefMay 22, 2019

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No. 18-8224

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

ANTONIO DICKERSON, AKA GIRBAUD, PETITIONER

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

BRIAN A. BENCZKOWSKI

Assistant Attorney General

ANDREW W. LAING

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

QUESTIONS PRESENTED

Whether

conviction

for

the

production

child

pornography, in violation of 18 U.S.C. 2251(a), requires the

government to establish the defendant’s mental state with respect

to the victim’s age.

Whether the 15-year minimum sentence required for an

offense of sexual exploitation of children, see 18 U.S.C. 2251(e),

violates the Due Process Clause of the Fifth Amendment.

(I)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 18-8224

ANTONIO DICKERSON, AKA GIRBAUD, PETITIONER

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1-4) is not

published in the Federal Reporter but is reprinted at 735 Fed.

Appx. 349.

JURISDICTION

The judgment of the court of appeals was entered on August

21, 2018.

A petition for rehearing was denied on November 28,

2019 (Pet. App. 5).

The petition for a writ of certiorari was

filed on February 25, 2019.

The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court

for the Central District of California, petitioner was convicted

on one count of production of child pornography, in violation of

18 U.S.C. 2251(a).

Judgment 1; Pet. App. 1-2.

The district court

sentenced petitioner to 180 months of imprisonment, to be followed

by five years of supervised release.

appeals affirmed.

Sacramento

prostitution.

The court of

Pet. App. 1-4.

April

Judgment 1.

2011,

Costa

petitioner

Mesa,

organized

California,

for

trip

from

purposes

Presentence Investigation Report (PSR) ¶ 11.

C.M.,

who was 16 years old at the time, was one of the prostitutes.

Ibid.

The group stopped in Oakland and stayed with petitioner’s

mother, and C.M. engaged in prostitution that night.

PSR ¶ 11(b).

“After concluding that ‘business’ was slow in Oakland,” petitioner

took the group to Costa Mesa.

PSR ¶ 11(d).

While staying at a

hotel there, petitioner directed C.M. and an adult prostitute “to

engage in sexual acts while he took photographs of their conduct,”

and he later posted at least five of those photographs online to

advertise C.M.’s services as a prostitute.

PSR ¶¶ 11(e), 12(a) &

n.3.

A federal grand jury in the Central District of California

charged petitioner with one count of sex trafficking of a minor,

in violation of 18 U.S.C. 1591(a)(1) and (b)(2), and one count of

production of child pornography, in violation of 18 U.S.C. 2251(a).

Superseding Indictment 1-3.

Petitioner proceeded to trial, where

the jury found him guilty on the production of child pornography

count and not guilty on the sex trafficking count.

Judgment 1.

The

months

district

imprisonment,

court

the

sentenced

minimum

petitioner

sentence

required

180

under

U.S.C.

2251(e), to be followed by five years of supervised release.

Judgment 1.

first

The court of appeals affirmed. Pet. App. 1-4. The court

rejected

petitioner’s

argument

that

the

district

court

should have instructed the jury as to “a reasonable mistake of age

defense to the production of child pornography charge.”

Id. at 2.

Noting that petitioner had not requested such an instruction, and

thus reviewing his claim for plain error, the court of appeals

examined the evidence that petitioner knew or should have known of

C.M.’s age and determined that, “[o]n this record, it was not

‘clear’ or ‘obvious’ that a reasonable mistake of age instruction

was required.”

Id. at 3 (citations and internal quotation marks

omitted); see id. at 2-3.

Next, the court of appeals rejected petitioner’s argument

“that the government should have been required to affirmatively

prove” his mental state as to C.M.’s age “in order to convict him

of violating 18 U.S.C. § 2251(a).”

Pet. App. 3.

The court

observed that petitioner had also failed to raise that argument in

the district court.

Ibid.

Assuming the argument had only been

forfeited and not waived, the court of appeals observed that it

had “squarely rejected” petitioner’s argument in a prior decision,

ibid. (citing United States v. United States Dist. Court, 858 F.2d

534, 536-538 (9th Cir. 1988)), and determined that no subsequent

decision of this Court had “plainly” undermined that authority.

Ibid.; see id. at 3-4.

Finally, the court of appeals rejected petitioner’s argument

that the 15-year minimum term of imprisonment required by 18 U.S.C.

2251(e) “violates the Eighth Amendment’s guarantee against cruel

and unusual punishment.”

Pet. App. 4.

Noting that this Court

“‘has upheld far tougher sentences for less serious crimes,’” the

court of appeals determined that petitioner’s sentence “is not so

grossly disproportionate as to violate the Eighth Amendment.”

Ibid. (quoting United States v. Williams, 636 F.3d 1229, 1232-1233

(9th Cir.), cert. denied, 565 U.S. 856 (2011)).

ARGUMENT

Petitioner contends (Pet. 9-20) that the government should

have been required to prove recklessness (or knowledge) with

respect

C.M.’s

minority

status

conviction under 18 U.S.C. 2251(a).

order

support

his

Petitioner did not preserve

that claim in the district court, and the court of appeals’

determination that petitioner could not demonstrate plain error

does not conflict with any decision of this Court or another court

of appeals.

Petitioner further argues (Pet. 20-30) that the 15-

year minimum sentence required under 18 U.S.C. 2251(e) violates

the Due Process Clause of the Fifth Amendment.

That claim, which

was neither pressed nor passed upon below, also implicates no

conflict among the courts of appeals.

Further review is not

warranted.

Petitioner

instructions

and

the

district

government

court

that

jointly

did

proposed

not

require

jury

the

government to prove, as an element of the offense, petitioner’s

mental state regarding the victim’s age.

54.

See Gov’t C.A. Br. 53-

Petitioner’s claim that the government should have proved

that he was at least reckless as to C.M.’s age is therefore waived;

and even if the claim were merely forfeited, it would be reviewable

only for plain error.

See ibid.; Pet. App. 2-3; see also Fed. R.

Crim. P. 32(d), 52(b).

On plain-error review, petitioner has the burden to

establish (i) an error (ii) that was “clear or obvious, rather

than subject to reasonable dispute,” (iii) that “affected [his]

substantial rights, which in the ordinary case means he must

demonstrate that it affected the outcome of the district court

proceedings, ” and (iv) that “ seriously affected the fairness,

integrity or public reputation of judicial proceedings.”

Puckett

v. United States, 556 U.S. 129, 135 (2009) (brackets, citations,

and internal quotation marks omitted); see Rosales-Mireles v.

United States, 138 S. Ct. 1897, 1904-1905 (2018); United States v.

Dominguez Benitez, 542 U.S. 74, 81-82 (2004).

prongs is difficult, ‘as it should be.’”

“Meeting all four

Puckett, 556 U.S. at 135

(quoting Dominguez Benitez, 542 U.S. at 83 n.9).

The court of appeals correctly determined that the district

court did not plainly err in failing to instruct the jury sua

sponte that the government was required to prove, under 18 U.S.C.

2251(a), that petitioner either knew that C.M. was a minor or was

reckless as to that fact.

Pet. App. 3-4.

Section 2251(a) makes

it a crime for “[a]ny person [to] employ[], use[], persuade[],

induce[], entice[], or coerce[] any minor to engage in * * * any

sexually explicit conduct for the purpose of producing any visual

depiction of such conduct * * * if such visual depiction has

actually

been

transported

transmitted

using

any

means

facility of interstate or foreign commerce.”

Every court of appeals to consider the question has recognized

that the government is not required to prove that the defendant

knew the victim’s age.

See United States v. Henry, 827 F.3d 16,

22-25 (1st Cir.), cert. denied, 137 S. Ct. 374 (2016); United

States v. Griffith, 284 F.3d 338, 348-349 (2d Cir.), cert. denied,

537 U.S. 986 (2002); United States v. Malloy, 568 F.3d 166, 171172 (4th Cir. 2009), cert. denied, 559 U.S. 991 (2010); United

States v. Crow, 164 F.3d 229, 236 (5th Cir.), cert. denied, 526

U.S. 1160 (1999); United States v. Humphrey, 608 F.3d 955, 962

(6th Cir. 2010); United States v. Fletcher, 634 F.3d 395, 400-401

(7th Cir.), cert. denied, 565 U.S. 942 (2011); United States v.

Pliego, 578 F.3d 938, 942-943 (8th Cir. 2009), cert. denied, 558

U.S. 1133 (2010); United States v. United States Dist. Court, 858

F.2d 534, 537-538 (9th Cir. 1988) (Kantor); United States v.

Deverso, 518 F.3d 1250, 1257 (11th Cir. 2008); see also United

States v. Smith, 662 Fed. Appx. 132, 136 (3d Cir. 2016).

Those uniform decisions are consistent with this Court’s

discussion of the history and purpose of Section 2251(a) in United

States v.

X-Citement

Video,

Inc.,

513

U.S.

(1994),

which

observes that Congress omitted the word “knowingly” from Section

2251(a),

while

retaining

neighboring

provision,

“reflecting an ‘intent that it is not a necessary element of a

prosecution that the defendant knew the actual age of the child.’”

Id. at 76 (quoting S. Conf. Rep. No. 601, 95th Cong., 1st Sess. 5

(1977)); see Russello v. United States, 464 U.S. 16, 23 (1983)

(“Where Congress includes particular language in one section of a

statute but omits it in another section of the same Act, it is

generally presumed that Congress acts intentionally and purposely

in the disparate inclusion or exclusion.”) (brackets and citation

omitted). The Court accordingly recognized that producers of child

pornography “may be convicted under § 2251(a) without proof they

had knowledge of age.”

X-Citement Video, 513 U.S. at 76 n.5.

light of that authority, petitioner at a minimum cannot establish

that the district court committed the sort of “clear or obvious”

error

that

could

warrant

correction

under

the

plain-error

standard, Puckett, 556 U.S. at 135; see Henderson v. United States,

568

U.S.

266,

278

(2013)

(“[L]ower

court

decisions

that

are

questionable but not plainly wrong (at time of trial or at time of

appeal) fall outside the * * * scope” of the plain-error rule.);

United States v. Frady, 456 U.S. 152, 163 (1982) (noting that

reversible plain error must be “so ‘plain’ ” under governing law

that a court would be “derelict in countenancing it, even absent

the defendant’s timely assistance in detecting it”).

Petitioner

incorrectly

contends

(Pet.

11-20)

that,

notwithstanding X-Citement Video, this Court’s cases suggest that

Section 2251(a) requires proof that a defendant was at least

reckless with respect to the minor victim’s age.

As this Court

has recognized, “many sex crimes involving minors do not ordinarily

require that a perpetrator know that his victim is a minor.”

Flores-Figueroa

United

States,

556

U.S.

646,

653

(2009).

Petitioner’s argument to the contrary primarily relies (Pet. 1215) on this Court’s decision in Elonis v. United States, 135 S. Ct.

2001 (2015), in which this Court applied “[t]he ‘presumption in

favor of a scienter requirement’” in the context of a statute

criminalizing threats.

513 U.S. at 72).

Id. at 2011 (quoting X-Citement Video,

The common-law presumption relied upon in

Elonis, however, does not include “sex offenses, such as rape, in

which the victim’s actual age was determinative despite [the]

defendant’s reasonable belief that the girl had reached age of

consent.”

Morissette v. United States, 342 U.S. 246, 251 n.8

(1952).

This

perpetrator

Court

has

explained

that

confronts

the

underage

victim

such

cases,

personally

“the

and

may

reasonably be required to ascertain that victim’s age.” X-Citement

Video, 513 U.S. at 72 n.2.

identified

“the

Indeed, this Court has specifically

criminalization

pornography

production

18 U.S.C. § 2251” as an example of an offense for which proof of

mens rea as to the victim’s age is not required.

Ibid.

This

Court’s decisions in New York v. Ferber, 458 U.S. 747 (1982), and

Osborne v. Ohio, 495 U.S. 103 (1990), on which petitioner also

relies (Pet. 16-18), are therefore inapposite for the reasons this

Court explained in X-Citement Video:

Those cases address the

“distributing,”

749,

Osborne,

495

Ferber,

U.S.

458

108,

U.S.

child

and

pornography

“possession,”

not

its

production -- and thus do not implicate criminal defendants like

petitioner who confront their underage victims personally.

Petitioner also errs in relying upon Leocal v. Ashcroft, 543

U.S. 1 (2004), for the proposition that the word “use” in Section

2251(a) requires “at least a reckless mens rea.”

argument misreads the statute:

Pet. 14-15.

That

Section 2251(a) applies to a

defendant who “uses * * * any minor to engage in” the creation of

pornography; the word “uses” thus may impose a mens rea requirement

with respect to the defendant’s actions, but it does not indicate

the existence of a mental-state requirement with respect to the

minor’s age.

Petitioner’s reading of the statute, moreover, is

contradicted

legislative

history

this

Court’s

explanation

X-Citement

Video,

which

the

statute’s

explains

that

Congress’s omission from Section 2251(a) of a mens rea requirement

with respect to age was deliberate.

See 513 U.S. at 76-77.

Finally, insofar as petitioner argues (Pet. 18) that the

absence of a mental-state requirement with respect to a child’s

age under Section 2251(a) will chill protected speech, he is

mistaken. Section 2251(a) reaches only depictions of real children

engaging in sexually explicit conduct, and such depictions lack

any First Amendment protection.

See Ferber, 458 U.S. at 764.

The

statute does not apply to pornographic material with youthfullooking adult actors or to virtual child pornography. Cf. Ashcroft

v. Free Speech Coal., 535 U.S. 234, 250-251 (2002) (invalidating

statute criminalizing production of virtual child pornography).

And because Section 2251(a) reaches only unprotected speech, it

necessarily does not “punish[] a ‘substantial’ amount of protected

free

speech,

‘judged

legitimate sweep.’”

relation

the

statute’s

plainly

Virginia v. Hicks, 539 U.S. 113, 118-119

(2003) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973));

see United States v. Johnson, 376 F.3d 689, 695-696 (7th Cir. 2004)

(rejecting

overbreadth

challenge

Section

2251

because

the

statute reaches only unprotected speech).

Nor does petitioner

offer any reason to think that Section 2251(a) will deter those

who would engage in constitutionally protected speech but for the

mistaken belief that the sexually explicit conduct they wish to

depict involves a minor.

and

Petitioner errs in asserting (Pet. 9-11) that “confusion

conflict”

exists

among

the

circuits

about

whether

the

defendant’s mental state as to the victim’s age is an element of

a Section 2251(a) offense.

The only relevant point on which the

courts of appeals differ is whether Section 2251(a) permits an

affirmative defense where there are reasonable grounds to believe

that the defendant neither knew nor reasonably could have learned

that the victim was under 18 years of age.

Compare Kantor, 858

F.2d at 543 (recognizing such a defense), with Henry, 827 F.3d at

24 (collecting cases from five other courts of appeals rejecting

the Ninth Circuit’s recognition of such a defense and “adopt[ing]

the majority view” that no such defense exists).

But petitioner

-- whose case comes to this Court from the only circuit that does

recognize such a defense -- does not and could not argue that this

Court should grant review to address its existence.

Petitioner

did not request an instruction providing for such a defense at

trial, and the court of appeals determined that the district court

did not plainly err in failing to instruct the jury on that defense

sua sponte.

Pet App. 2-3.

minimum

Petitioner

term

contends

(Pet.

imprisonment

violates the Fifth Amendment.

20-30)

required

that

under

the

15-year

Section

2251(e)

That argument, raised for the first

time in his petition for a writ of certiorari, is lacks merit.

Petitioner did not raise any constitutional challenge to his

sentence before the district court.

See Gov’t C.A. Br. 61.

And

his only challenge to his sentence before the court of appeals was

his argument that it violated the Eighth Amendment (not the Fifth

Amendment), see Pet. C.A. Br. 38-42, which the court of appeals

rejected, see Pet. App. 4.

This Court’s “traditional rule * * *

precludes a grant of certiorari * * * when the question presented

was not pressed or passed upon below.”

United States v. Williams,

504 U.S. 36, 41 (1992) (citation and internal quotation marks

omitted); see EEOC v. Federal Labor Relations Auth., 476 U.S. 19,

24 (1986) (per curiam) (this Court typically “refrain[s] from

addressing issues not raised in the Court of Appeals”). Petitioner

offers no sound reason to deviate from that traditional practice

here.

unsound.

any

event,

petitioner’s

Fifth

Amendment

argument

Petitioner primarily relies (Pet. 20-21) on Lambert v.

California, 355 U.S. 225 (1957), in which this Court invalidated

a law imposing “heavy criminal penalties” on certain felons in Los

Angeles who failed to register with the city, including those who

were unaware of the requirement to do so, because “[n]otice is

required in a myriad of situations where a penalty or forfeiture

might be suffered for mere failure to act.”

Id. at 228-229.

But

this case does not involve the sort of “wholly passive” offense at

issue in Lambert, id. at 228, and instead involves affirmative

acts of photographing sexually explicit activity by a minor.

Nothing in Lambert -- which recognized “wide latitude in the

lawmakers

declare

offense

and

exclude

elements

knowledge and diligence from its definition,” ibid. -- suggests

that

petitioner's

conviction

sentence

here

violated

due

process.

Petitioner asserts that “[t]he lower courts are divided” on

the due process question he presents.

Pet. 24 (emphasis omitted).

Yet in support of that contention, petitioner cites (Pet. 24-27)

only two cases, each decided over 30 years ago, addressing criminal

punishment under the Migratory Bird Treaty Act, 16 U.S.C. 703 et

seq.

See United States v. Engler, 806 F.2d 425, 433-434 (3d Cir.

1986) (reasoning that the Act’s felony provision imposing strict

liability does not violate the Due Process Clause), cert. denied,

481 U.S. 1019 (1987); United States v. Wulff, 758 F.2d 1121, 1125

(6th Cir. 1985) (reasoning that the Act’s felony provision violates

the Due Process Clause).

The Migratory Bird Treaty Act imposes a

different penalty for significantly different behavior, and any

disagreement regarding the constitutionality of punishment under

that statute has little relevance here.

To the extent that the

Sixth Circuit’s decision in Wulff has any implications for mentalstate requirements generally, moreover, the Sixth Circuit has

since applied it narrowly, reasoning that Wulff “obviously falls

into the class of cases like Lambert, in which the defendant has

no warning that his acts might be illegal.”

6 F.3d 399, 405 (1993) (emphasis added).

Stanley v. Turner,

Petitioner’s case falls

outside that class of cases for the reasons explained above.

pp. 8-9, supra.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

NOEL J. FRANCISCO

Acting Solicitor General

BRIAN A. BENCZKOWSKI

Assistant Attorney General

ANDREW W. LAING

Attorney

MAY 2019

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