Opposition Brief — White v. Minnesota

" | Supreme Court, WS

FILED

JUL 712 1991

OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1990

No. 90-1909

EVE WHITE a/k/a EVE CASCIO

Petitioner,

Vv.

STATE OF MINNESOTA,

Respondent.

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

BY: JOHN E. DeSANTO

Assistant St. Louis County Attorney

100 North Fifth Avenue West, No. 501

Duluth, MN 55802-1298

Telephone: 218-726-2323

ATTORNEY FOR RESPONDENT

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1990

No. 90-1909

EVE WHITE a/k/a EVE CASCIO

Petitioner,

Vv.

STATE OF MINNESOTA,

Respondent.

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

—_ ew re ee wee ee ee es eee es as aes a ee es ee

BY: JOHN E. DeSANTO

Assistant St. Louis County Attorney

100 North Fifth Avenue West, No. 501

Duluth, MN 55802-1298

Telephone: 218-726-2323

ATTORNEY FOR RESPONDENT

QUESTIONS PRESENTED

Ri Is Minnesota child pornography

statute, § 617.246 (1989), constitutional

under the First and Fourteenth Amendments

to the United States Constitution,

although this statute imposed criminal

liability upon Petitioner's conduct

without affording Petitioner a defense

based upon mistake of age of the minor

employed by Petitioner to engage in a

sexual performance?

2 Is Minnesota child pornography

statute § 617.246 (1989), constitutional

under the Due Process Clause of the

Fourteenth Amendment to the United States

Constitution, although this’- statute

imposed criminal liability upon Petitioner

for employing a minor to engage in a

sexual performance when the minor used a

false Minnesota identification card,

fraudulently obtained from the State of

Minnesota, to misrepresent her age when

seeking employment from Petitioner?

ii

ee el hela alll

TABLE OF CONTENTS

PAGE

Questions Presented ....... i-ii

memes Ge CONnEONGS . . ss os tw ow ow wt SK

Table of Authorities ...... ive-vi

Statement of the Case ....... 1#5

Argument Why the Writ Should Not Issue

I.

II.

The decision of the Minnesota

Supreme Court upholding the

constitutionality of a child

pornography statute imposing crimiral

liability upon Petitioner regardless

of her mistaken knowledge of the age

of the minor employed by her is

absolutely consistent with applicable

decisions of this Court. - 5-11

No due process violation has occurred

in this case aS a result of

_ Petitioner being denied a mistake of

age defense, nor as a result of the

State of Minnesota issue a false

Minnesota identification card to the

minor hired by Petitioner to engage

in a sexual performance. - 11-19

ee a eee ee ee ee ee ee ee ee

iii

STATE STATUTES

Minnesota Statutes Section

B7hcO7, GUBG. 3. © «© we eo wo oe B

FEDERAL STATUTES

CASES

Barnes v. Glen Theatre nC.» U.S.

59 LW, 4745 (June 21, 1991)

ie i) a ee ee ae ee oh ee 9, 11, 20

Cox v. Louisiana, 379 U.S. 559,

85 $.Ct. 476, 13 L.Ed.2d 487

eo ee ae eee a a

New Yo v. Ferber, 458 U.S. 747,

102 S.Ct. 3348, 73 L.Ed.2d 1133

vor. ae

Osborne v. Ohio, U.S. 110

S.Ct. 1691 (1990) = @ Fs S283 28

Raley v. Ohio, 360 U.S. 423,

79 S.Ct. 1257, 3 L.Ed.2d 1344

ee ee og Lig oe 4 ee ae

iv

itiiisiaitiietneteee eee

an

oy +e

it

i

[= =

Ri¢

i) %

_ =»

oe ay wie

r Tn Lees (et

iio a) nie

4

ri

’ te

eft he nA

ry

2 &

*

2 7 ai. i= iene! oc

{8 = ' ; a 7 a : a & Ae Fi *

A.

<r a ee

a ee er ee

.

a ca a a

« weal

State v. Fan, 445 N.W.2d 243

(Minn. App. 1989), pet. for rev.

denied (Minn. October 31, 1989),

cert. denied U.S.

110 S.Ct. 1480, 108 L.Ed.2d 617

RE rs ba i eae lg ey ce

State v. White, 464 N.W.2d 585

(Minn. App. 1990) .. . 5, 10, 13

U.S. v. Balint, 258 U.S. 250, 42 S.Ct.

301, 66 L.Ed. 604 (1922) .... 12

U.S. v. Behrman, 258 U.S. 280, 42 S.Ct.

303, 66 L.Ed 619 (1922) — eo

U.S, Vv. Brady, 710 #*F. Supp. 290

(D. Colorado 1989) ... . . 16, 18

U.S. v. Brooks, 841 F.2d 268

Cg ee er |

U.S. v. Dotterweich, 320 U.S. 277, 64

S.Ct. 134, 88 L.Ed. 48 (1943) . 12

U.S. v. Freed, 401 U.S. 601, 91 S.Ct.

1112, 28 L.Ed.2d 356

faeeer. «6 6 « 8 « 0 «@ © « © O84 €9

U.S. v. Hamilton, 456 F.2d 171

(3rd Cir.), cert. denied, 406 U.S.

947, 92 S.Ct. 2051, 32 L.Ed.2d 335

Sayed -« 5 «2 Kk koe 8 eo 5 OR

U.S. Vv. ub, 385 U.S. 475,

87 S.Ct. 547, 17 \L.Ed.2d 520

(1967) o e o @ eo eo e e e eo eo 23, 16

Vv

U.S. v. Pennsylvania Chemical Corp., 411

U.S. 655, 93 S.Ct. 1804,

36 L.Ed.2d 567 (1973) ' a. 6 16-18

U.S. v. United States District Court 10

vi

*

7

:

'

j e

}

;

’

¢

fi i

nis we ’ :

* c ‘ab _ , [ ;

eo - i.

‘s ra : -s a _ ‘ied =) irs - .. om —

e f } i— 4 Pa 7 — rua S | 7 ee ahr

- 7 ‘ » 7 = ws a. a 4 < = 2 Soke anak Le

STA OF CASE

In this case, Petitioner, following

a jury trial, was convicted of the felony

of using a minor in a sexual performance.

As a result of this conviction, Petitioner

was placed on five years of probation and

ordered to pay a $5,000 fine. The

judgment of conviction was affirmed by the

Minnesota Court of Appeals on December 31,

1990. On March 15, 1991, the Minnesota

Supreme Court denied Petitioner's petition

for review. Petitioner now seeks a writ

of certiorari from this Court.

Petitioner's Statement of the Case

to this Court is inaccurate at page six

in that it implies that Petitioner was

thorough in attempting to verify the age

and identity of the nude dancers she hired

a he Ow

to perform at the Minneapolis, St. Paul,

and Duluth, Minnesota, bookstores owned

by Ferris Alexander. In the case of

17-year-old R.A.R., hired by Petitioner

in the instant case, although Petitioner

accepted a false Minnesota identification

card identifying R.A.R. as her

26-year-old sister, Sheryl Reynolds,

Petitioner remarked that R.A.R. looked

younger than the age given on tnis

identification card. (*T. 80)

Despite the facts that R.A.R. looked

younger than 26 years old, had no other

identification, and could not produce a

social security card or number, Petitioner

did virtually nothing to avoid hiring this

*T. refers to trial transcript.

underage performer. Petitioner never

asked to see R.A.R.'s social security card

after hiring R.A.R. (T. 80, 434)

Petitioner simply had R.A.R. repeat the

information on the false identification

card, compared R.A.R.'s signature on a

W-4 form with her signature on the false

identification card, and later, accepted

a false social security number from R.A.R.

over the telephone. (T. 435, 80)

Petitioner's Statement of the Case

to this Court is incomplete in that it

fails to inform this Court that

Petitioner testified at her trial that she

was really not concerned about the true

identity of the performers she hired to

engage in sexual performances. Petitioner

was frequently unaware of the true name

« «a

of any of the performers she hired.

Ninety percent of the girls hired by

Petitioner used false names. (T. 464)

Petitioner's Statement of the Case

to this Court also fails to inform this

Court that another dancer at the Wabasha

Bookstore in Duluth, Minnesota, and a

clerk at this store, testified that there

is no way they believed that R.A.R. was

26 years old. Sandra Keinbaum testified

that when she saw R.A.R. during the first

week of May, 1989 there was no way she

would have thought R.A.R. was 26 years

Old. (T. 239) Cliff Bergstrom, a clerk,

testified that R.A.R. looked a lot younger

than 26 and he would not have believed

the false Minnesota Identification Card

= arly a! ae ha -. - : ae

a inxte: —s ne toes “mith

crest ies AgGEx helat au pad ee

eae. 843 *o prem eo! 9 terol 7: ce

es ee i te su

Rae a Olle ee » ‘<p ayt ei) Ves ia pee

Pa i) rt. 7) oi Oe a De ec el ah Se,

Cit SR a id eed So Se 0

oe) ee FN ee he eal ar :

indicating R.A.R. was 26 years old if he

had been shown the card. (T. 287)

ARGUMENT

I.

THE DECISION OF THE MINNESOTA SUPREME

COURT UPHOLDING THE CONSTITUTIONALITY OF

A CHILD PORNOGRAPHY STATUTE IMPOSING

CRIMINAL LIABILITY UPON PETITIONER

REGARDLESS OF HER MISTAKEN KNOWLEDGE OF

THE AGE OF THE MINOR EMPLOYED BY HER IS

ABSOLUTELY CONSISTENT WITH APPLICABLE

DECISIONS OF THIS COURT.

Contrary to the argument in support

of Petitioner's petition for writ of

certiorari to this Court, the decision of

the Minnesota Court of Appeals in State

v. White, 464 N.W.2d 585 (Minn. App. 1990)

and the decision of the Minnesota Supreme

Court on March 15, 1991 denying further

review of this case are absolutely

consistent with decisions of this Court.

me

In fact, if the Minnesota appellate courts

had declared Minnesota Statute § 617.246,

Subd. 2 and Subd. 5 unconstitutional under

the First anc Fourteenth Amendments in the

instant case, the Minnesota courts would

have had to ignore the constitutional

mandates of this Court in New York v.

Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73

L.Ed.2d 1113 (1982), and in Osborne v.

Ohio, us. 110 S.ct. 1691

(1990).

Moreover, this Court has already

denied certiorari after the Minnesota

appellate courts previously upheld the

constitutionality of Minnesota Statute §

617.246 in State v. Fan, 445 N.W.2d 243

(Minn. App. 1989), pet. for rev. denied

(Minn. October 31, 1989), cert. denied

U.S. 110 S.ct. 1480, 108

L.Ed.2d 617 (1990).

The obscenity cases cited by

Petitioner are not applicable to this

child pornography case. Given the

extremely important State interest in

protecting the victims of child

pornography, the constitutionality of

statutes enacted "to eradicate child

pornography," Osborne, 110 S.Ct. at 1700,

like Minnesota Statutes § 617.246 need not

be reviewed again by this Court.

Obscenity is irrelevant to child

pornography which is not protected by the

First Amendment. Ferber, supra.

Respondent seriously challenges the

characterization of Petitioner as a

"conscientious promotor of First Amendment

activities who conscientiously attempts

to comply with the law." Petition for

writ of certiorari at page 16. The

evidence in the instant case contradicts

that assertion. Although Petitioner

personally believed R.A.R. was younger

than the 26 years indicated on her I.D.

card, and although R.A.R. had no other

forms of identification and could not even

produce a social security card or number

during her employment’ interview by

Petitioner, 17-year-old R.A.R. was hired

by Petitioner to engage in pornographic

sexual performances. Moreover, *he record

in the instant case clearly indicates that

Petitioner cared little about the true

identity of the girls she hired as nude

dancers.

Ki ee

Also, this is not a case involving

"the producer of a book, magazine, or

motion picture film," as represented at

page eight of the petition for certiorari.

Instead, this is a case involving the

hiring of a minor to engage in live

entertainment at the Wabasha Bookstore in

Duluth, Minnesota, consisting of nude

dance performances through glass panels

to customers sitting in booths and

inserting coins into a timing mechanism

permitting the customers to observe the

dancers like R.A.R. (T. 40-45)

In the most recent pronouncement by

this Court in Barnes v. Glen Theatre,

Inc., U.S. 59 LW 4745

(June 21, 1991) an Indiana statute

prohibiting completely nude dancing by

AWM in at gate oncteuiietnascs Samia eisai

adult females in a bookstore circumstance

virtually identical to that in the instant

case was upheld as constitutional over a

First Amendment challenge. Certainly, the

Minnesota statute challenged on First

Amendment grounds in the instant case,

which prohibits the use of minors in

sexual performances, much more readily

passes constitutional muster.

Finally, as indicated by the

Minnesota Court of Appeals in White, 464

N.W.2d at 589, the Minnesota statute in

question here affects expressive conduct,

rather than speech, and it contains a

scienter requirement for the content of

the performance. Hence, U.S. v. United

States District Court, 858 F.2d (9th Cir.

10

ee ene tet er

- ei e - % = - _ ‘ : o- =

i re 9 ae

1988) does not conflict with the

instant case.

Moreover, under Barnes v. Glen

Theatre, Inc., 59 LW 4745, Petitioner's

Claim that nude dancing is a form of

constitutionally protected expression is

no longer correct. Plainly and simply,

there is no need for this Court to grant

certiorari to review the instant case on

First Amendment grounds.

II.

NO DUE PROCESS VIOLATION HAS OCCURRED IN

THIS CASE AS A RESULT OF PETITIONER BEING

DENIED A MISTAKE OF AGE DEFENSE, NOR AS

A RESULT OF THE STATE OF MINNESOTA ISSUING

A FALSE MINNESOTA IDENTIFICATION CARD TO

THE MINOR HIRED BY PETITIONER TO ENGAGE

IN A SEXUAL PERFORMANCE.

First, Petitioner is absolutely

incorrect that "this Court has never

11

eS ee a ee ee F 3 =} x —i—

upheld the imposition of strict liability

for a serious felony offense like that

created by Section 617.246." Petition at

page 19. Both this Court and United

States Courts of Appeals have upheld the

constitutionality of strict liability

felony offenses. See U.S. v. Freed, 401

U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356

(1971); U.S. v. Dotterweich, 320 U.S. 277,

64 S.Ct. 134, 88 L.Ed. 48 (1943); U.S. Vv.

Behrman, 258 U.S. 280, 42 S.Ct. 303, 66

L.Ed 619 (1922); U.S. v. Balint, 258 U.S.

250, 42 S.Ct. 301, 66 L.Ed. 604 (1922);

U.S. _v. Brooks, 841 F.2d 268 (9th Cir.

1988); and U.S. v. Hamilton, 456 F.2d 171

(3rd Cir.), cert. denied, 406 U.S. 947,

92 S.Ct. 2051, 32 L.Ed.2d 335 (1972).

i2

ei ata

Pie sien

Moreover, the Minnesota Statute at

issue in the instant case is not a pure

"etrict liability" statute. Section

617.246 does contain a scienter

requirement for the content of the

performance for which the minor is

employed. State v. White, 464 N.W.2d at

589; State v. Fan, 445 N.W.2d at 247.

Petitioner, in footnote #7 of her

petition to this Court, attempts to

distinguish Freed on the grounds that

Freed upheld a strict liability regulatory

statute enacted in the interest of the

public safety, health and welfare.

Certainly, as indicated by this Court also

in Ferber and Osborne, statutes like

Section 617.246 are also enacted in the

13

ee as ee Te |

5

5

interest of public health, welfare, and

safety of our children.

In addition, Petitioner's due process

claim that her conviction must be reversed

because "the State of Minnesota was an

active and crucial participant," (petition

at page 23) in R.A.R.'s misrepresentation

of age to Petitioner is patently false.

The evidence clearly indicates that the

State of Minnesota did not affirmatively

or actively participate with R.A.R. inher

misrepresentation of age to Petitioner.

After being defrauded by R.A.R., a

clerk at the Department of Public Safety

of the State of Minnesota simply issued

the false Minnesota Identification Card

to R.A.R. as required by Minnesota

Statutes § 171.07, Subd. 3. Neither this

14

>, ee ~ ae

——<T em

a u " ie ne Seer

>

ce:

clerk, nor anyone else employed by the

State of Minnesota, then instructed R.A.R.

to go use the Minnesota Identification

Card to get employment in the pornography

industry. Neither this clerk, nor anyone

else employed by the State of Minnesota,

contacted Petitioner and told her to hire

R.A.R. to work in the Ferris Alexander

bookstores in Minneapolis, St. Paul, and

Duluth. Plainly and simply, the State of

Minnesota was not "an active and crucial

participant" in R.A.~R.*S8

misrepresentation.

Petitioner's cited authorities of

Raley _v. Ohio, 360 U.S. 423, 79 S.Ct.

1257, 3 L.Ed.2d 1344 (1959), Cox _v.

Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13

L.Ed.2d 487 (1965), U.S. v. Laub, 385 U.S.

15

we “

SS the III, LAWRIE abt Rea ANE a nei i taht bap tees,

:

i

{

475, 87 S.Ct. 547, 17 L.Ed.2d 520 (1967),

U.S. v. Penn vania Chemical Corp., 411

U.S. 655, 93 S.Ct. 1804, 36 L.Ed.2d 567

(1973), and U.S. v. Brady, 710 F. Supp.

290 (D. Colorado 1989) are easily

distinguishable from the instant case.

Raley, Cox, and Brady, all involved

instances where someone in authority in

government erroneously instructed the

accused about the law. The accused

persons then acted in accordance with the

erroneous instructions only to be

pro. cuted and convicted by the government

for these actions. It is obvious that it

violates due process to convict the

defendants of crimes in these cases.

In Laub, this Court simply affirmed

a dismissal of an indictment charging an

16

Se ae a a ee ee re ee Cee cn Pane ee See) — on, a ee — oo ~~ ee Se ee

immigration law violation which did not

actually exist in the statute. Finally,

in U.S. v. Pennsylvania Chemical Corp.,

this Court prevented the government from

proceeding with a prosecution under a

statute when the defendant corporation

relied on an administrative interpretation

of the statute published by the U.S. Army

Corp of Engineers permitting performance

of the charged acts.

Plainly and simply, Petitioner did

not employ 17-year-old R.A.R. to engage

in a sexual performance in the instant

case as a result of any instructions from

anyone in authority for the government

only to be prosecuted for doing so.

It is instructive to note that

Petitioner's argument on this issue

17

= rs

—s : _

T

.

.

j

rw

~ 7s *

r yas: ai A

i on = — ae VS a ‘o Ao} es al td

: : = ae ~ a —_

_ : . fafa : sd pao ae

we rr ve St eS pee wa

NO a Wala

»

Oe ne ee

%

3

$

contradicts itself at page 24 of the

petition. Here, even Petitioner concedes

that when the State of Minnesota issued

R.A.R. the false identification card, "it

did so plainly for the purpose of

permitting her to establish her identity

and age for all lawful purposes."

(emphasis supplied) Clearly, when

17-year-old R.A.R. used this false I.D.

card to gain employment from Petitioner

as a nude dancer, R.A.R. was not using

this fraudulently obtained I.D. card for

a lawful purpose. Petitioner could not

lawfully hire performers under 18 years

of age for the sexual performances at her

bookstores.

Unlike the situations in Raley, Cox,

e vani ica , and Brady,

18

|

:

0 bali OIA 0 OR a RS AA ERE |

as

Ores, 0 Mie Se < AMR it pc

SA ike Cle OE > AI had aa" iat»

in the instant case, there is absolutely

no fundamental unfairness or injustice in

prosecuting, convicting, and punishing

Petitioner for hiring a minor to engage

in sexual performances for the pornography

industry. Seventeen-year-old R.A.R. could

have gotten her false identification

misrepresenting her age from illegal

sources, as well as the State of

Minnesota. By defrauding the State of

Minnesota and obtaining her _ false

identification from the State, R.A.R. did

not preclude her protection, as a minor,

from the pornography industry under

Minnesota Statutes § 617.246.

ii ic eisiiceistecsve

CONCLUSION

Neither the First nor Fourteenth

Amendments to the United States

Constitution were violated by the

successful prosecution of Petitioner for

violating Minnesota Statutes § 617.246,

which was enacted to combat’ child

pornography.

The decisions of the Minnesota Court

of Appeals and Minnesota Supreme Court to

uphold the constitutionality of Minnesota

Statutes § 617.246 against First Amendment

and Due Process claims are absolutely

consistent with the decisions of this

Court in Ferber, Osborne, and most

recently, in Barnes. In fact, because the

conduct regulated by the Minnesota statute

in question here is not speech, this

20

wa Th bias armed Bae

Sa tK wien? iste! | Seiya Aes

statute is arguably not even subject to

First Amendment scrutiny at all. Barnes,

59 LW at 4748-4751 (J. Scalia concurring).

By enacting Minnesota Statute

§ 617.246, the Minnesota legislature

constitutionally exercised the State's

traditional police power to protect the

public health, safety, and morals. This

child pornography statute furthers the

compelling government interest in

protecting the physical and psychological

well-being of the children of this nation.

To accomplish these ends, this statute

properly places a heavy burden on persons,

like Petitioner, who hire individuals to

perform in sexual performances to make

sure they do not hire minor children.

All adult nude dancing is not

suppressed by this statute as Petitioner

wh

en SO,

=e

: -

au a ore

ey oe

oe a ¢

n,

uA

claims. Nude dancing is no longer

constitutionally protected, per se,

anyway.

For all of the foregoing reasons,

Respondent respectfully requests that the

writ of certiorari to review the decisions

of the Minnesota appellate courts not

issue. There is absolutely no special and

important reason why this case should be

reviewed by the United States Supreme

Court.

Dated: July 11, 1991.

Respectfully submitted,

ALAN L. MITCHELL

ST. LOUIS COUNTY ATTORNEY

BY:

AsSistant St. Louis County Attorney

100 North Fifth Avenue West, #501

Duluth, MN 55802-1298

Telephone: 218-726-2323

22