Petition for Writ of Certiorari — Kelly v. United States

Sur-reme Court, U.S.

rtn co

U214 20 mar 1 92008

No.

WOE OTE Cok

Jun the

Supreme Court of the Gnited States

GEORGE T. KELLY,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

Petition for Writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

_ALLAN A. ACKERMAN

Counsel of Record

2000 North Clifton Avenue

Chicago, Illinois 60614

(312) 332-2891

Attorney for Petitioner

GEORGE T. KELLY

Midwest Law Printing Company/ Photex — Chicago — (312) 321-0220

A:

A iy

~~

i

QUESTIONS PRESENTED

1. In Ashcroft v. Free Speech Coalition, 535 U.S. 234,

122 S.Ct. 1389 (2002), the Court held that sections (8)(B)

and (8)(D) of the 1996 Child Pornography Protection Act (18

U.S.C. § 2256) were overbroad and unconstitutional. The

question presented in this petition is whether the 1996

Child Pornography Protection Act should be declared

unconstitutional by virtue of it being overbroad and vague,

thus violative of the First Amendment or the Court’s Fifth

Amendment-void-for-vagueness cases?

2. Whether petitioner’s guilty plea should be vacated

(via plain error) where count three of the information to

which he pled guilty, post-Ashcroft, charged “child pornogra-

phy” without differentiating between the potentially valid

and invalid sections of 18 U.S.C, § 2256 declared uncon-

stitutional pursuant to Ashcroft?

ii

TABLE OF CONTENTS

PAGE

QUESTIONS PREGENIED 2 nc ccscccensccsesccsces i

pe St ges os re er ere re ii

Ses CF RISER ob ee cece eur eneerecess iii

Gee sae d i owen s awd eo aes eeeeeees 1

ETE 40 4bcax8k shales 1

CONSTITUTION AND STATUTES INVOLVED ...... 1

i Ee ey eer er nee 2

REASONS FOR GRANTING THE PETITION ........ 4

CUE. «6:05 540 baw cow ee ee eee eee i4

APPENDICES

Opinion and Judgment of the United States

Court of Appeals for the Seventh Circuit (Au-

err ee er ree la

18 U.S.C. § 2252A ......... Stent eee eee eens lla

Count Three of Information 02 CR118 ....... 15a

TABLE OF AUTHORITIES

Federal Cases PAGE(S)

Apprendi v. New Jersey,

530 U.S. 466 (2000) .......-. cece ee eee eee eees 14

Ashcroft v. The Free Speech Coalition,

535 U.S. 234, 122 S.Ct. 1389 (2002) ........- passim

Boos v. Barry, 485 U.S. 312,

108 S.Ct. 1157 (1988) .... 2... cece eee eee eees 12

Free Speech Coalition v. Reno,

198 F.3d 1083 (9th Cir. 1999) ..........---++-- 6, 7

Lawrence v. Chater, 516 U.S. 163,

116 S.Ct. 604 (1996) ..... 2. eee eee eee ee ees 10

Menna v. New York, 423 U.S. 61,

906 S.Ct. 241 (1975)... cece cee cee cere neces 14

Miller v. California, 413 U.S. 15,

98 S.Ct. 2607 (1978) .. 0. cc ccc cece ee snccecccses 8

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

102 S.Ct. 3948 (1982)... 1... cece eee cccvees 5,8

RAV. v. City of St. Paul, MN., 505 U.S. 377,

112 S.Ct. 2538 (1992) ...... 25. e ee eee ee ees 4-5, 12

Stutson v. United States, 516 U.S. 177,

116 S.Ct. 612 (1996) ... cnc cere cece scccccece 10

United States v. American Library Association, Inc.,

cert. granted, 123 S.Ct. 551 (2002); case below,

201 F.Supp.2d 401 (E.D. Pa. 2002) ........--- 12,13

iv

United States v. Cotton, 535 U.S. 625,

pg BA RE eee renee 14

United States v. Fillman,

162 F.3d 1055 (10 Cir. 1998) .................. 13

United States v. Fox, 248 F.3d 394 (5th Cir. 2001),

cert. granted vacated and remanded in light

of Ashcroft, 122 S.Ct. 1602, on remand,

Se Fe Ge Ce Ge. PE ov cece cccnvecessess 10

United States v. Gevedon,

S06 TARE GNF FT Gir, SOOO) gg ov occ cncccccvcccs 13

United States v. Knowles,

be og re re 14

United States v. Snow, No. 01-20129

(5th Cir. 2001) (unpublished, cert granted,

vacated and remanded, 122 S.Ct. 1603 (2002) ....10

United States v. Vonn, 535 U.S. 55,

ee es I I oo Cv ccanchceokevesidaes 14

Constitution Provisions, Statutes and Rules

United States Constitution, First Amendment ... passim

United States Constitution, Fifth Amendment ........ 1

Supreme Court Rule 10fa) ......ccccccsesseces 10-11

ey es EE vcs 6 454 8s oa dene Bae 1

BD ee bo che o0s ke cee tecss een eeennwes 13

18 U.S.C. § 2252A .. eee w ccc cere ecccees passim

18 U.S.C. § 2252A(aX5XB) .. 2... eee eee eee ee eee passim

28 UW.B.C. 6 BBB 2. ccc cece ccc creccscesccceses passim

Fed.R.Crim.Proc.

TD occ cccnaveusesccceteveseeseensesee 13

Other Authorities

Funk & Wagnalls, Comprehensive International

Dictionary of English Language, pg. 630

POET GED nck cocusnsssenvserecsessacteaneen 11

United States Senate Report,

No. B58 at BO, BT once ccccccccccecece §, 6, 11, 12

Sunstein, Pornography and the First Amendment,

1986 Duke L.J. 589, 615, n. 146. ...........-----: 5

1

PETITION FOR WRIT OF CERTIORARI

To: The Chief Justice and Associate Justices of the United

States Supreme Court. May it please the court:

George T. Kelly (hereafter petitioner), respectfully peti-

tions for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Seventh Circuit in

this case.

OPINION BELOW

The published opinion and judgment of the court of

appeals was filed on January 3, 2003, and is reported at

314 F.3d 908. Pet. App., infra, la-10a. The petitioner did

not seek rehearing.

JURISDICTION

The judgment of the court of appeals was entered on

January 3, 2003. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1).

CONSTITUTION AND STATUTES

The First Amendment to the United States Constitution

provides that “Congress shall make no law . . . abridging

the freedom of speech.”

The Fifth Amendment to the United States Constitution

provides [that] “No person shall . . . be deprived of life,

liberty, or property, without due process of the law.”

18 U.S.C. § 2252A(aX5\B) states [that]: Any person

who—either—knowingly possesses any book, magazine,

periodical, film, videotape, computer disk, or any other

material that contains an image of child pornography

that has been mailed, or shipped or transported in inter-

2

state or foreign commerce by any means, including by

computer, or that was produced using materials that

have been mailed, or shipped or transported in interstate

or foreign commerce by any means, including by com-

puter, shall be punished as provided in subsection (b) (18

U.S.C. § 2252A is reproduced in its entirety at App. 1la-

14a).

STATEMENT

1. Prior to January 2002 petitioner, age 63, had retired

after approximately thirty years of service as a super-

vising engineer with the Metropolitan Water -Reclama-

tion District of Greater Chicago. He also held [Illinois

architect and landscape architect licenses. At all times

herein pertinent, petitioner lived with his spouse and

family in a western suburb of Chicago.

2. On January 28, 2002, via information 02 CR 118,

petitioner was charged in the United States District

Court in Chicago with offenses relating to the Child Pre-

vention Pornography Act, 18 U.S.C. § 2252A (CPPA). As

relevant to this petition, count three charged petition-

er with violating 18 U.S.C. § 2252(a)(5)(B). Reproduced

at App. 15a.

On February 14, 2002, petitioner, with counsel, appeared

before the district court, waived indictment and entered

a plea of guilty to counts three and twelve of information

02 CR 118 (R. 6-7). The statutory underpinning for count

three was 18 U.S.C. §§ 2252A(aX5)\(B) (relevant seg-

ments of §§ 2252A reproduced at App. 11a-13a).

3. On April 16, 2002, the Court decided Ashcroft v. The

Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389. When

petitioner appeared for sentencing on April 19, 2002,

pursuant to Ashcroft, the government was granted leave

to dismiss count twelve (R. 10). Petitioner’s counsel ad-

3

vanced arguments supporting the proposition that Ash-

croft mandated the dismissal of count three. In pertinent

part, counsel argued:

Our objection is, the Supreme Court has said that

what he sent to the other gentleman is lawful and

constitutional and cannot be prescribed by Con-

gress in the opinion that was written by the Su-

preme Court. You can’t punish him for lawful

conduct.

Id. at Tr. 9. After further colloquy with the district court,

petitioner's counsel continued to maintain that Ashcroft

impacted on count three as follows:

MR. KOMIE [defense counsel]: Judge, the other

problem we have here is that everything that was

done here, including the guidelines, was done on

the assumption that the law was valid when the

Sentencing Commission formulated them in 1996.

The statute that he has plead guilty to was a 1996

enactment that the Supreme court has said is

unconstitutional. There is no language in the

Supreme Court opinion saving any other part of

that enactment at this point. In other words, the

Supreme Court points to other sections of the code

that it says are valid.

THE COURT: Well, your reading of the Supreme

Court opinion is much different than mine. I

thought the Supreme Court restricted its holding

to the subject of virtual pornography as opposed to

the use of live children to create pornography.

MR. KOMIE: That may have been the portion they

were talking abcut in terms of finding it unconsti-

tutional, but they went on to say which were the

valid laws in that same sections of the code, and

it says on page seven of the opinion,

4

“... Congress may pass valid enactments to protect

children from abuse, and it has...”

and then it goes on to point out 18 USC 2241 and

2251, but there’s nothing in this opinion that saves

the statute.

THE COURT: I beg to differ with you on that.

Id. at Tr. 11-12.

After the district court rejected petitioner’s Ashcroft

importunings (for count three dismissal) and following

Federal Sentencing Guideline departure-related argu-

ments (not at issue here), petitioner was sentenced to 33-

months in federal custody (R. 12, 19). Petitioner self-

surrendered to commence service of his sentence and

prosecuted a direct appeal.

4. Petitioner advanced similar Ashcroft-related argu-

ments on direct appeal and on January 3, 2003, the court

of appeals held that 18 U.S.C. § 2252A(a\(5X(B) was not

impacted by Ashcroft and affirmed petitioner’s convic-

tion (Pet. App., infra, 2a-8a).

Because the circuits are divided regarding Ashcroft’s

impact, viz., the CPPA, petitioner seeks review and rever-

sal.

REASONS FOR GRANTING THE PETITION

1. Background. The CPPA of 1996 represents a

content-specific enactment which attempts to regulate

speech based on the thoughts or ideas [it] conveys to the

viewer. Hence it must be subjected to exacting constitu-

tional scrutiny and such content-based regulations are

presumptively invalid, R.A.V. v. City of St. Paul, MN., 505

U.S. 377, 382, 112 S.Ct. 2538 (1992) (Content-based

regulations are presumptively invalid) (parallel citations

5

omitted). While the First Amendment fails to include a free-

dom to disregard traditional limitations, obscenity falls

within protected speech. Jd. at 383-84 (citing Sunstein,

Pornography and the First Amendment, 1986 Duke L.J.

589, 615, n. 146). In R.A.V., Justice Scalia took issue

with a segment of Justice White’s concurring opinion, ex-

plaining:

Although Justice WHITE asserts that our analysis

disregards “established principles of First Amend-

ment law,” post, at 2560, he cites not a single

case (and we are aware of none) that even involved,

much less considered and resolved, the issue of

content discrimination through regulation of “un-

protected” speech—though we plainly recognized

that as an issue in New York v. Ferber, 458 U.S.

747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982).

505 U.S. at 386, n. 5.

The CPPA significantly expanded that which has been

considered “child pornography” by including within that

definition sexually explicit depictions of nonchildren, in-

cluding youthful-looking adults as well as non-existent

characters or actors. Under the CPPA child pornography

is defined as any sexually explicit material that: (1) de-

picts actual minors; (2) depicts persons who appear to be

minors; (3) modifies or alters the image of an identifiable

minor so that the minor appears to be engaging in sex-

ually explicit conduct; or (4) is advertised or described so

as to convey the impression that it depicts a minor. See

18 U.S.C. § 2256(8).’ United States Senate Report No. 358

* The CPPA expanded the definition of “child pornography” by

including definitions by including sexually explicit depictions

of nonchildren, youthful-looking adults and fictional characters.

In addition, the 1996 Act amended §§ 2251, 2252, 2256 and added

(continued...)

6

incorporated repeated warnings from constitutional schol-

ars that the CPPA would not pass constitutional must>"

(S.Rep. No. 358 at 29). For example, Professor Frederick

Schauer, who had been appointed Commissioner of the

Attorney General’s Commission on Pornography, advised

Congress that the CPPA would be unconstitutional. Ibid.

Members of Congress also warned that the extreme ex-

pansion of child pornography legislation embraced by the

CPPA would likewise fail under Supreme Court prece-

dent. Jd. at 37-38. Based on the concerns of constitutional

scholars and members of Congress, the Senate added

§ 2256(8)(c) which arguably addressed concerns surround-

ing the definition of child pornography, S.Rep. 358 at

11, 31.

2. The antecedent CPP/¢. hallenge. In Free Speech

Coalition v. Reno, 198 F.3d 1083 (9th Cir. 1999), a divided

court held that segments of 18 U.S.C. § 2256A were vague

and overbroad and did not meet the requirements of the

First Amendment, 198 F.3d at 1086, 1094. In part, the ma-

jority explained:

By criminalizing all visual depictions that “appear

to be” or “convey the impression” of child pornog-

raphy, even where no child is ever used or harmed

in its production, Congress has outlawed the type

of depictions explicitly protected by the Supreme

Court’s interpretation of the First Amendment.

Because the 1996 Act attempts to criminalize dis-

avowed impulses of the mind, manifested in il-

1 (...continued)

§ 2252A labeled “certain activities relating to material consti-

tuting or containing child pornography,” [which] prohibits per-

sons from mailing, transporting, receiving, distributing, reproduc-

ing, selling or possession child pornography (as redefined by

the Act) within interstate or foreign commerce.

f

f

:

'

7

licit creative acts, we determine that censorship

through the enactment of criminal laws intended

to control an evil idea cannot satisfy the constitu-

tional requirements of the First Amendment.

198 F.3d at 1094. In addition, the Free Speech majority

held that the CPPA was constitutionally infirm under the

First Amendment because it was overbroad:

The CPPA’s inclusion of constitutionally pro-

_ tected activity as well as legitimately prohibited

activity makes it overbroad (citing Broadrick uv.

Oklahoma, 413 U.S. 601, 612, 98 S.Ct. 2908 (1973)).

Id. at 1096. Further, the Free Speech majority held that

the Acts criminalizing material that “appears to be a

minor” and “convey[s] the impression” that a minor [is]

engaged in explicit sexual activity is void-for-vagueness. Id.

at 1095.

In Ashcroft v. The Free Speech Coalition, 535 U.S. 234,

122 S.Ct. 1389 (2002), the Court affirmed the Ninth Cir-

cuit majority, explaining, in part:

The court [USCA 9] held the CPPA to be substan-

tially overbroad because it bans materials that

are neither obscene nor produced by the exploita-

tion of real children as in New York v. Ferber, 458 ~

U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982).

* * * The Court of Appeals voted to deny the peti-

tion for rehearing en banc, over the dissent of three

judges. See 220 F.3d 1113 (2000). While the Ninth

Circuit found the CPPA invalid on its face, four

other Courts of Appeals have sustained it. * * *

122 S.Ct. at 1398 (ital. emph. added).

Thereafter, the Court reviewed the constitutionality of

the CPPA in its entirety because the Act was a major

departure from the established balance between the First

8

Amendment’s free speech protections and the Government’s

interest in protecting children from the trauma of child

pornography. In pertinent segments of its opinion, the

Court refers to the Act in its entirety and defines the

pivetal issue as follows:

“We consider in this case whethe.’ the Child Por-

nography Prevention Act of 1996 (CPPA), 18 U.S.C.

§ 2251 et seq., abridges the freedom of speech.”

122 S.Ct. at 1396. The Court later explained, “The CPPA, |

for reasons we have explored, is inconsistent with Miller

and finds no support in Ferber,” 122 S.Ct. at 1402.”

Similarly, when discussing how the Act suppresses

protected speech, the Court again refers to the entire Act

when discussing the fundamental problems with its con-

struction:

The CPPA’s penalties are indeed severe. A

first offender may be imprisoned for 15 years.

§ 2252A(bXa). A repeat offender faces a prison

sentence of not less than 5 years and not more

than 30 years in prison. Ibid. While even minor

punishments can chill protected speech [citations |

2 Ferber = New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348

(1982) and Miller [v. California], 413 U.S. 15, 93 S.Ct. 2607

(1973). Regarding Ferber, the Court explained that “Ferber’s

judgment about child pornography was based upon how it was

made, not what it communicated and it reaffirmed that where

the speech is neither obscene nor the product of sexual abuse,

it does not fall outside the protections of the First Amendment,” :

122 S.Ct. at 1402. In connection with Miller, the Court sum-

marized the holding, explaining [that] “the Government must

prove that the work, taken as a whole, appeals to the prurient

interest, is patently offensive in light of community standards,

and lack serious literary, artistic, political, or scientific value.” Id.

at 1399.

henerieneianaemenatnatiaeiiaaanasaiaaaitiamasiiiisiiiitalisiiiiaaiaaiiiiiiiiaaiaal

9

omitted], this case provides a textbook example of

why we permit facial challenges to statutes that

burden expression.

122 S.Ct. at 1398.

The Ashcroft decision sustained First Amendment

challenges to 18 U.S.C. §§ 2256(8)(b) and 2256(8)d). Id. at

1405-06. Justice Thomas cautiously concurred suggesting

that based on “technical advances” the government may

have a compelling interest in barring or regulating “nar-

row” categories of “lawful speech” to effectively enforce

pornography laws. Id. at 1406-07. Justice O’Connor’s

concurring/dissenting opinion, joined in part, by the Chief

Justice and Justice Scalia, noted that CPPA’s ban on

“youthful-adult” pornography appeared to violate the

First Amendment [but] the ban on virtual-child pornog-

raphy does not. Id. at 1410 (discussing § 2256(8)(b)). The

Chief Justice and Justice Scalia dissented urging that

the Act be construed in a manner consistent with the

First Amendment and therefore the statute should be

sustained in its entirety. Id. at 1413-14. -

Recall that the Court of Appeals’ majority in Free Speech

held that the Act was both overbroad and was unconstitu-

tionally vague—explaining that:

A statute is void for vagueness if it fails to define

the criminal offense with sufficient definiteness

that ordinary people can understand what conduct

is prohibited and in a manner that does not en-

courage arbitrary or discriminatory enforcement.

198 F.3d at 1095 (quotation marks and supporting cita-

tion omitted). Thus this Court’s affirmation of the Ninth

Circuit Free Speech majority necessarily connotes that

the CPPA is both overbroad and suffers the vice of “void

for vagueness.” That said, the opinion of the Court of Ap-

peals for the Seventh Circuit in the case below conflicts

10

with this Court’s opinion in Ashcroft and the Ninth Cir-

cuit’s majority opinion in Free Speech.

3. Circuit Conflict. The lack of circuit harmony

becomes more pronounced when considering decisions

such as United States v. Fox, 248 F.3d 394 (5th Cir. 2001)

and United States v. Snow, No. 01-20129 (5th Cir. 2001)

(unpublished). In both Fox and Snow, the defendants (as

the petitioner here), were charged with offenses under 18 |

U.S.C. § 2252A(aX(5)(B). Post-Ashcroft, the Court granted |

cert., vacated and remanded (Fox, 122 S.Ct. 1602; Snow, |

122 S.Ct. 1603). On remand, the Fifth Circuit returned |

Fox and Snow to the district court for further review, Fox,

293 F.3d 237 (5th Cir. 2002); Snow, unpublished Fifth |

Circuit order dated October 4, 2002 under No. 01-20129

remanded to district court. To be sure, the GVR orders do

not amount to a final determination on the merits, but

may indicate “a reasonable possibility that the decision

below rests upon a premise that the lower court would

reject if given the opportunity for further considera-

tion,” Lawrence v. Chater, 516 U.S. 163, 167, 116 S.Ct. 604

(1996).°

In the ensemble, petitioner maintains that given the

affirmation of the Ninth Circuit’s Free Speech majority

in Ashcroft, blended with the Fifth Circuit’s GVR hold-

ings in Fox and Snow (returning both cases to the district

court), there is a clear conflict between those decisions and

the holding below in petitioner’s case.*

3 Justice Scalia (joined by Justice Thomas) filed a dissenting

opinion, sub nom., Stutson v. United States, 516 U.S. at 178, 116

S.Ct. 612 (1996), explaining the shortcomings in the Court’s GVR

practice. Petitioner pretermits any observations regarding the

Court’s GVR custom. 2

* Supreme Court Rule 10(a) provides that review by this Court

may be granted where a “United States court of appeals has

(continued...)

ee

11

In all events, it is pristine that the Court held that

segments of § 2256A were constitutionally overbroad

and violative of the First Amendment, 122 S.Ct. at 1405-

06.°

4. CPPA-Facially Unconstitutional. Petitioner main-

tains that the CPPA is facially unconstitutional in that it

prohibits a substantial amount of protected expression. For

example, the Act includes the word “image” but fails to

define “image.” According to Funk & Wagnalls 1977 edition

of the Comprehensive International Dictionary of English

Language, pg. 630, image is defined as a noun—(1) a visible

representation of something; a statue, picture, idol, etc., (2)

Optics The picture or counterpart of an object produced by

reflection or refraction, or the passage of rays through a

small aperture. If such an image can be actually thrown on

a surface as in a camera, it is a real image; but if it is

visible only as in a mirror, it is a virtual image; * * *,

The importance of “image” cannot be overlooked. Peti-

tioner was charged with knowingly possessed a computer

hard-drive containing an “image” of child pornography.

Pet. App. 15a, infra. Can it be gainsaid that the First

Amendment prohibits “images” where there is no rational

basis for determining that which constitutes an “image?”

Recall that segments of Senate Report No. 358 included

* (...continued)

entered a decision in conflict with the decision of another United

States court of appeals on the same important matter.”

* The Court specifically held that § 2256(8(b) which includes any

“visual depiction [that]... appears to be of a minor engaging

in sexually explicit conduct,” and § 2256(8)(d) which includes

any “visual depiction [that] is advertised, promoted, presented,

described, or distributed in such a manner that conveys the

impression that the material is or contains a visual depiction of

a minor engaging in sexually explicit conduct.”

12 5

observations by constitutional scholars advising Congress

that the CPPA will be held unconstitutional and thus

rendered useless in battling child pornography. Id. at 29.

The CPPA is realistically a criminal enactment intended

to control evil speech and ideas which fails to satisfy First

Amendment requirements. Clearly it is a content-specific

enactment on speech because it regulates expression

predicated on the ideas conveyed to viewers and is pre-

sumed unconstitutional, R.A.V., supra, 505 U.S. at 382.

Further it must be subjected to the most exacting constitu-

tional scrutiny, Boos v. Barry, 485 U.S. 312, 321, 108 S.Ct.

1157 (1988).

In connection with strict scrutiny-First Amendment, the

Court’s current docket includes United States v. American

Library Association, Inc., cert. granted, 123 S.Ct. 551

(2002). In American Library, the government is challeng-

ing a three-judge district court decision which held the

Childrens Internet Protection Act, Pub.L. No. 106-554,

facially invalid under the First Amendment, case below,

201 F.Supp.2d 401 (E.D. Pa. 2002).

The district court decision in American Library cited to

Ashcroft v. Free Speech Coalition, explaining, inter alia,

[that] “(T]he Court’s First Amendment cases draw vital

distinctions between words and ceeds, between ideas and

conduct,” 201 F.Supp. at 473-74. The Court continued

citing Free Speech noting that “The argument . . . that pro-

tected speech may be banned as a means to ban unpro-

tected speech . . . turns the First Amendment upside down.

The government may not suppress lawful speech as

the means to suppress unlawful speech,” 201 F.Supp. at

477.

§ The American Library district court decision continued cit-

ing Free Speech, vis-a-vis, First Amendment rights to possess

obscene materials. Id. at 478.

13

Because the Court’s decision in American Library may

impact on this petition, it is respectfully suggested, that

disposition of this petition be held in abeyance pending

the decision in American Library.

5. Guilty Plea Vacation-Plain Error. As earlier ex-

plained, petitioner was charged in count three of informa-

tion 02-118 with knowingly possessed [on or about Febru-

ary 12, 2001) a computer hard drive containing an “image

of child pornography” . . . in violation of 18 U.S.C.

§ 2252A(aX5\B).’ The relevant definitional section sets

out four different ways that “visual depictions” may qualify

as “child pornography,” (18 U.S.C. § 2256(8)(A)-(D)). But

in Free Speech Coalition this Court specifically held that

the segments of the definition of “child pornography” found

in 18 U.S.C. § 2256A(8\b) and (8d) were unconstitution-

ally overbroad and violative of the First Amendment, 122

S.Ct. at 1405-06.

The difficulty in petitioner’s case is that count three of

the information failed to specify which of the four defini-

tions may have been involved in an undifferentiated refer-

ence to “child pornography.” Pet. App. at 15a. Thus it is

impossible to know whether count three was predicated on

segments of “child pornography” specifically declared

unconstitutional in Free Speech Coalition. Under such cir-

7 In accordance with Rule 7(b), Fed.R.Crim.Proc., petitioner

waived indictment. However the term “indictment” includes an

indictment or information in any court under which a crime

is punishable by imprisonment for a term exceeding one year. . .,

United States v. Fillman, 162 F.3d 1055, 1057 (10th Cir. 1998)

(Fillman challenged his conviction pursuant to 18 U.S.C. § 842(i)

based on the proposition that an antecedent criminal charge

was by “information” not “indictment.” The court rejected his stat-

utory challenge finding there was no difference between [an]

indictment or information for purposes of § 842(i)); Accord

United States v. Gevedon, 214 F.3d 807, 813 (7th Cir. 2000) (same-

collecting parallel circuit decisions).

14 -

cumstances petitioner did not receive clear notice of the

charges and therefore a finding of plain error may ensue,

see Menna v. New York, 423 U.S. 61, 62-63, n. 2, 96 S.Ct.

241 (1975) (“[A] plea of guilty to a charge does not waive

a claim that—judged on its face—the charge is one which

the State may not constitutionally prosecute.”); United

States v. Knowles, 29 F.3d 947, 951 (5th Cir. 1995) (revers-

ing, on plain error review, conviction obtained on guilty

plea where statute of conviction had been declared uncon-

stitutional during timeframe between sentencing and ap-

peal).®

CONCLUSION ?

The petition for a writ of certiorari should be granted.

Respectfully submitted,

ALLAN A. ACKERMAN

Counsel of Record

2000 North Clifton Avenue

Chicago, Illinois 60614

(312) 332-2891

Attorney for Petitioner

GEORGE T. KELLY

® Petitioner failed to challenge his guilty plea below based on

a Menna/ Knowles analysis and therefore [guilty plea vacation]

relief can be granted only by way of plain error, cf., United States

v. Vonn, 535 U.S. 55, 122 S.Ct. 1043 (2002). Petitioner concedes

that in light of United States v. Cotton, 535 U.S. 625, 122 S.Ct.

1781 (2002), any [lack of district court] jurisdiction[al] argument

falls by the wayside. However, unlike Cotton, petitioner asserts

that plain error is evident because there is neither compelling

nor overwhelming “child pornography” proof (and unlike Cotton,

petitioner does not incorporate any purported Apprendi v. New

Jersey (530 U.S. 466 (2000) issue as part of this petition). In

all events, the Court may exercise its Rule 10(a) supervisory

power by entering an order vacating petitioner's count three-

guilty plea conviction and directing further lower court review.