Opposition Brief — Vacanti v. United States

Supreme Court, US, na

(2) FILED

AUG 16 188

No. 87-1949

JOSEPH F. rs IR.

In the Supreme Court of the Gnited States

OCTOBER TERM, 1988

NATHAN VACANTI, PETITIONER

v.

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

CHARLES FRIED

Solicitor General

EDWARD S.G. DENNIS, JR.

Acting Assistant Attorney General

PATTY MERKAMP STEMLER

Attorney

Department of Justice

Washington, D.C. .20530

(202) 633-2217

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QUESTIONS PRESENTED

1. Whether, by sending petitioner a _ newsletter

containing advertisements pertaining to sexually explicit

materials, the government engaged in outrageous conduct

that violated petitioner’s right to due process.

2. Whether petitioner was entrapped as a matter of

law.

(1)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Mathews v. United States, No. 86-6109 (Feb. 24,

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New York v. Ferber, 458 U.S. 747 (1982) ..............

Stanley v. Georgia, 394 U.S. 557 (1969) ................

United States v. Orito, 413 U.S. 139 (1973) .............

United States v. Reidel, 402 U.S. 351 (1971) ............

United States v. Russell, 411 U.S. 423 (1973) ...........

United States v. Thirty-Seven Photographs, 402 U.S.

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United States v. Thoma, 726 F.2d 1191 (7th Cir.), cert.

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United States v. 12 200-Ft. Reels of Super 8mm. Film,

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Jn the Supreme Court of the Anited States

OCTOBER TERM, 1988

No. 87-1949

NATHAN VACANTI, PETITIONER

v.

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. 12-16) is

unreported.

JURISDICTION

The judgment of the court of appeals was entered on

February 18, 1988. The petition for a writ of certiorari was

filed on April 18, 1988. The jurisdiction of this Court is in-

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

STATEMENT

Following a jury trial in the United States District Court

for the Eastern District of Washington, petitioner was

convicted on two counts of transporting material depicting

a minor engaged in sexually explicit conduct, in violation

(1)

2

of 18 U.S.C. 2252(a)(1). He was sentenced to five years’

imprisonment, all but 30 days of which was suspended in

favor of probation. The court of appeals affirmed.

1. In 1983 or early 1984, the Postal Inspection Service

was informed by the Danish government that petitioner

had ordered films involving child pornography from a

Danish organization, “Les Young Club” (1 Tr. 14-17; GXs

1-3). In 1985, the Postal Service published a newsletter en-

titled “Love Land,” which contained advertisements aimed

at individuals interested in child pornography. In light of

petitioner’s correspondence with “Les Young Club,” the

Service sent a copy of “Love Land” to petitioner along

with an application blank. In July 1985, petitioner re-

sponded to “Love Land’s” invitation to become a member

by sending in a four dollar membership fee. That fee en-

titled him to the quarterly “Love Land” newsletter, and it

gave him a membership number that he could use in his

correspondence with the individuals or companies that

advertised in the newsletter. Petitioner voluntarily sent an

additional four dollars to “Love Land,” which he ex-

plained was “for the good job you are doing.” | Tr. 20-28;

GXs 4-6.

In January 1986, the postal service accepted petitioner’s

application and sent him a number. In May 1986, peti-

tioner responded to five advertisements in “Love Land,”

using his assigned number. Two of the advertisements had

been written by postal inspectors; one of those two adver-

tisements sought films of “young girls 7-16 fully, partially

clothed, nude, revealing action.” 1 Tr. 29; GX 5. Peti-

tioner’s responses to the two advertisements were virtually

identical. They stated (GX 7-8):

Hi there,

Saw your ad, and have some of the items you will be

interested in. Most of my magazines, and films are on

*- =.¢

3

V.H.S. I have a process that I discovered and all my

pictures, magazines etc.—I’ve transferred to video.

The idea of having a small picture and looking at it on

a big TV screen is great, also being able to zoom in on

special parts of the picture. Black & white or color,

they all look great. I will not sell any copies, as I am

not in that business. But, I will share them with you as

long as you share your collection with me. Also I can

put your pictures and films and magazines on video

for you. All you have to do is supply the video tape. A

lot of guys have done that, and we all get the best of

all the collections. If you are interested let me know,

Looking to hear from you.

Number 000207.

Postal inspectors drafted fictitious replies to two of peti-

tioner’s letters (GXs 9-10). The purported author of one of

the replies expressed an interest in sharing pornographic

materials with petitioner. And both authors provided peti-

tioner with a blank VHS tape on which he could copy

samples of his pornography collection. On June 27, 1986,

the postal service received two packages from petitioner.

The packages contained identical videotapes depicting

child pornography (GXs 11-12). Accompanying the tapes

were letters explaining the “time-consuming” process that

petitioner had used to make the tapes. Petitioner in-

structed the persons with whom he was corresponding to

use U.P.S. to send the pornographic materials. Petitioner

explained that he does “not trust the mails,” and that he

used a private carrier for deliveries and a mailing service to

collect his mail.* Petitioner enclosed his name and address

and advised the other party to “disregard” the address on

the envelope “for obvious reasons.” /bid.

* Petitioner lived in California but used a mailing service in Seattle,

Washington. 2 Tr. 93-94.

4

2. At the close of the government’s case, petitioner

moved for a judgment of acquittal on the grounds that he

was entrapped as a matter of law and that the govern-

ment’s involvement in the commission of the crime con-

stituted outrageous government misconduct. The district

court denied the motion. 2 Tr. 84-85, 87.

Petitioner then testified in his own behalf. He stated

that he had begun his pornography collection in 1973, and

he acknowledged that he had ordered child pornography

from Denmark in 1982. He explained that he had sent

“Love Land” four dollars more than the required member-

ship fee because “Love Land” was the “first club that I

have ever seen that would be so intent on sending out

regularly these brochures.” 2 Tr. 96-98, 103. He admitted

that he had answered five advertisements in “Love Land.”

He claimed that the newsletters from “Love Land”

rekindled his interest in putting his pornography collection

back together after he had lost interest in the collection for

almost two years. 2 Tr. 104, 108-109. The jury convicted

petitioner on both counts.

3. The court of appeals affirmed in an unpublished

opinion (Pet. App. 12-16). The court rejected petitioner’s

argument that the government engaged in outrageous con-

duct by sending him the “Love Land” newsletters. The

court stated that the government’s involvement did not

shock its “sense of justice,” and it noted that the newsletter

itself did not involve any criminal activity prohibited by 18

U.S.C. 2252. Moreover, the court held that the inspector’s

conduct in drafting ads and writing letters requesting or

offering child pornography was a legitimate means of in-

filtrating the ranks of child pornographers. Finally, the

court concluded that although the postal inspector invited

petitioner to mail the objectionable material, “he did not

coerce [petitioner] to do so.” Pet. App. 14.

5

The court further held that petitioner was not entrapped

as a matter of law. Petitioner’s order of child pornography

from a Danish distributor indicated his predisposition to

receive child pornography through the mail. Pet. App. 15.

Also, petitioner’s use of a false return address and his in-

sistence that further dealings with other traders in child

pornography be conducted through a private carrier rather

than through the mails indicated that the government did

no more than provide petitioner with an opportunity to

commit a crime that he was already fully predisposed to

commit. Ibid.

ARGUMENT

1. Petitioner first contends (Pet. 6-7) that by sending

him issues of “Love Land,” the government interfered

with his right to collect child pornography in the privacy

of his home, a right, he maintains, that is recognized in

this Court’s decision in Stanley v. Georgia, 394 U.S. 557

(1969). Petitioner argues that in so doing the government

was involved in his crime to an “outrageous degree.” There

is no merit to this claim.

In Stanley, this Court held that the mere possession of

obscene material in the privacy of one’s home cannot con-

stitutionally be made a crime (394 U.S. at 568). Whether

or not Stanley applies to child pornography (see New York

v. Ferber, 458 U.S. 747 (1982) (recognizing that the pre-

vention of sexual exploitation and abuse of children war-

rants treating child pornography differently than obscene,

adult-oriented material)), it is well settled that Stanley

does not give one the right to import, distribute, sell, or

transport such material. See United States v. 12 200-Ft.

Reels of Super 8mm. Film, 413 U.S. 123, 125-129 (1973);

United States v. Orito, 413 U.S. 139, 141-144 (1973);

United States v. Reidel, 402 U.S. 351, 355-356 (1971); see

6

United States v. Thirty-Seven Photographs, 402 U.S. 363,

376 (1971) (plurality opinion). Moreoyer, there is nothing

“shocking” or “outrageous” about sending a newsletter

like “Love Land” to an individual who is known to have

ordered child pornography through the mail. Petitioner

had already evidenced his willingness to engage in ac-

tivities that are not protected by Stanley. The government

did not offend petitioner’s right to due process simply by

conducting an undercover investigation of his activities.

United States v. Russell, 411 U.S. 423, 430-432 (1973);

United States v. Thoma, 726 F.2d 1191, 1198-1199 (7th

Cir.), cert. denied, 467 U.S. 1228 (1984).

2. Petitioner’s claim that he was entrapped as a matter

of law is frivolous. The record is replete with evidence of

petitioner’s predisposition to commit the charged offenses.

See Mathews v. United States, No. 86-6109 (Feb. 24,

1988), slip op. 4 (lack of predisposition is an essential ele-

ment of an entrapment defense). Petitioner had previously

used the mails to order child pornography from Denmark.

He had been collecting child pornography for more than a

decade. Moreover, contrary to petitioner’s claim, there

was evidence that petitioner’s willingness to trade in child

pornography was not simply a response provoked entirely

by the postal inspector’s invitation. In his replies to the

postal inspector’s letters, petitioner explained that he had

devised a modus operandi for avoiding detection — he used

a delivery service rather than the mails, and he used an

out-of-state mailing service to collect his mail. And in his

letters to the postal inspector, petitioner stated (GX 8):

I will share [my collection] with you as long as you

will share your collection with me. Also I can put

your pics and books on video for you. All you have to

do is supply the video tape. A Jot of the guys have

done that and we all get the best of all the collections.

7

On the basis of this evidence, the jury was clearly entitled

to conclude that petitioner was predisposed to commit the

offense of distributing materials depicting children en-

gaged in sexually explicit conduct.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

EDWARD S.G. DENNIS, JR.

Acting Assistant Attorney General

PATTY MERKAMP STEMLER

Attorney

AUGUST 1988

vr U.S. GOVERNMENT PRINTING OFFICE: 1988— 202-037/60603