# Opposition Brief — Peel v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2302%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2011
- **Citation:** 562 U.S. 1178

## Text

No. 10-83

In the Supreme Court of the Gnited States

GARY E PEEL, PETITIONER

he

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
LOTHL UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRC CTT

BRIEF FOR THE UNITED STATES IN OPPOSITION

NiLAl Kt'win KATYAL
Acting Solicitor General
Conmnsel of Recoid
LANNY A BRICIR
sissestant Attorucy General
JOHN M PEILETUERI
Attorney
Department of Justice
Washington, DC 20330-0001
SupremeCtBirvefs@ usdop.qor
(202) 114-2271%

QUESTIONS PRESENTED

1. Whether 18 U.S.C. 2252A(a)(5)(B) violates the
First Amendment as applied to petitioner because the
statute makes it unlawful to possess (in 2006) sexually
explicit photographs of a 16-year-old gir] that were pro.
duced before Congress outlawed child pornography and
at a time when the age of consent in the State where the
photographs were produced was 16.

2. Whether petitioner’s convictions for possessing
(in 2006) sexually explicit photographs of a 16-year-old
girl violate the Ex Post Facto Clause of the Constitution
beeause the photographs were produced before Con-
gress outlawed child pornography and at a time when
the age of consent in the State where the photographs
were produced was 16.

TABLE OF CONTENTS

Page
Bo om
Jurisdiction ........
Statement .. 2
Argument 9
INE ey ne hy ne cue ke weak, 17
TABLE OF AUTHORITIES
Cases:
Ashcroft v. Free Speech Coalition, 535 U.S. 234
SE i ncict a ee he ee Ce ree ¢, 11,138, 14
California Dep't of Corr. v. Morales, 514 U.S. 499
DEN ccs ss ye diale'c es a ee a eee 15
Collins v. Youngblood, 497 U.S. 37 (1990) 15
Cutter v. Wilkinson, 544 U.S. 709 (2005) 1]
Kasley v. Reuss, 582 F.3d 592 (7th Cir. 2008) 1]
Hamuton-Brown Shoe Co. v. Wolf Bros. & Co.,
ee Whats BOE NSORO) 0 seh a vch acres ees re 9
Johnson v. United States, 529 U.S. 694 (2000) . . 16
Major League Baseball Players Ass'n v. Garvey,
baz US. 504 (Z00]) ...... 0. cee. LO
Miller v. Florida, 482 U.S. 423 (1987) .... . 15
New York v. Ferber, 458 U.S. 747 (1982) ........ 13, 14,15
People v. Beksel, 261 N.E.2d 40 (Ill. App. Ct. 1970) 14
People v. Keegan, 286 N.E.2d 345 (ill. 1971),
cert. denied, 406 U.S 964 (1972) ............ 14
Puckett v. United States, 129 S. Ct. 1429 (2009) Fe -
United States v. Bateman, 805 F. Supp. 1058 (D.N.H
1992) lo

Cases—Continued:

United States v. Felaczano, 223 F.3d 102 (2d Cir
2000), cert. denied, 5382 U.S. 948 (2001)

l/nited State

sv. Juvenile Male:

590 F.3d 924 (9th Cir. 2010), petition for cert.
pending, No. 09-940 (filed Feb. 9, 2010)

30 8. Ct.
l/nited State
l/nated State

l/nited States

liniated State
LORY)

l/nited State

2518 (2010)

sv. Marcus, 1308. Ct. 2159 (2010)

sv. Olano, 507 U.S. 725 (1993) .

sv. Paton, 110 F.3d 562 (Sth Cir. 1997)

sv. Petrtyean, 883 F.2d 1341 (7th Cir

sv. Porter, 709 F. supp. 770 (K.D. Mich.
1989), aff’d, 895 F.2d 1415 (6th Cir.), cert. denied,

1498 U.S. 1018 (1990)

United State

sv. Trupin, 117 F.3d 678 (2d Cir. 1997),

cert. denied, 522 U.S. 1051 (1998) .

l/nited Stat

sv. Waters, 23 F.3d 29 (2d Cir.), cert

denied, 513 U.S. 867 (1994)

United State

U/nited Stat
(1994)...

sv. Walliams, 504 U.S. 36 (1992)

i v. xX Cite Wu rt Video. ly 513 {] Ne 64

VM1 v. United States, 508 U.S. 946 (1998)

Wills v. Texas, 511 U.S. 1097 (1994)

Constitution, st

U.S. Const.

atutes and rule

Art. I, § 9, Cl. 8 (ex Post Facto Clause)

Amend.
Amend. \

(Double Jeopardy Clause)

Statutes and rules—Continued Page
Child Pornography Prevention Act of 1996, Pub. L.
No. 104-208, Div. A, Tit. 1, § 101(a), 110 Stat. 3009 13
Child Protection Act of 1984, Pub. L. No. 98-292,

§ 5(a), 98 Stat. 205

Crime Control Act of 1990, Pub. L. No. 101-647, § 328,

Re ees MR 5 eh Av ba be bee e ess eave ae |
federal Juvenile Delinquency Act,

18 U.S.C. 5031 et seg. ....... ae 16
Protection of Children Against Sexual Exploitation

Act of 1978, Pub. L. No. 95 225, § 2253(1

tO Ear eee i
Sex Offender Registration and Notification Act

Pub. L. No. 109-248, Tit. 1, 120 Stat. 590 16
18 U.S.C. 152(6) ...... 2,93
IS ULS.C. 1512(e)(2) .. ~ o
IS U.S.C. 2252A(a)(5)(B) Z, d, Oo, 1Z, 15, Ve
1S U.S.C. 2252A(c) 1, 5, 6, 7, 10
IS U.S.C. 2256(1) {
18 U.S.C. 2256(8)(A) 3

IS U.S.C. 3558(a SY

Fed. R. Crim. P::
Rule 12(b)(3)(A) 12
Rule 12(b)(3)(B) 1?
Rule 12(e) |?

Rule 52(b) )

In the Supreme Court of the Gnited States

GARY E. |
UNITED STATES 0!

ON PETITION FOR A WRIT OF CERTIORAR:
lO THE UNITED STATES COURT OF APPEA

FOR THE SEVENTH CIRCI
BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

»«)

The opinion of the court of appeals (Pet. App. la-22a
is reported at 595 F.3d 763. The relevant opinion of the
district court (Pet. App. 23a-36a) is unreported but is
available at 2007 WL 2126257.

JURISDICTION

The judgment of the court of appeals was entered 01
February 12, 2010. A petition for rehearing was denied
on March 15, 2010 (Pet. App. 45a). On June 2, 2010, Ju
tice Stevens extended the time within which to file a
petition for a writ of certiorari to and including August
12, 2010, and the petition was filed on July 14, 2010. The
jurisdiction of this Court is invoked under 28 U.S.C
1254(]

STATEMENT

Following a jury trial in the United States District
Court for the Southern District of Illinois, petitioner
was convicted of one count of bankruptcy fraud, in viola
tion of 18 U.S.C. 152(6); one count of obstruction of jus
tice, in violation of 18 U.S.C. 1512(c)(2); and two counts
of possession of child pornography, in violation of
18 U.S.C. 2252A(a)(5)(B). The district court sentenced
petitioner to 144 months of imprisonment, to be followed
by three years of supervised release. The court of ap
peals affirmed in part and reversed in part, remanding
to the district court with instructions to vacate either
the bankruptcy fraud or the obstruction of justice con
viction, and resentence petitioner after redetermin
ing the advisory Sentencing Guidelines range.
Pet. App. la-22a, 39a-41a.

1. In 1974, petitioner had an affair with his then
wife’s 16-year-old sister. During the affair, which lasted
several months, petitioner took several nude, sexually
explicit photographs of his sister-in-law. The photo
graphs depicted the 16-year-old girl sitting naked on the
floor of petitioner’s law office with her legs spread and
with the focus on the girl’s pubic area. When his sister
in-law requested the pictures, petitioner gave her some,
which she destroyed, but retained others without her
knowledge. Pet. App. la-2a, 25a-26a.

In 2003, petitioner and his wife divorced and agreed
to a marital settlement. The following year, petitioner
filed suit in Illinois state court seeking to vacate the set
tlement. Petitioner subsequently filed for bankruptcy
and asked the bankruptcy court to discharge his finan
cial obligations to his ex-wife under the terms of the
marital settlement. Petitioner’s ex-wife opposed the
discharge and filed a claim for the money petitioner

Pet. App. 2a
During the course of settlement negotiations, pet
tioner told his ex-wife t of
her younger sister and that he would make those pic
tures public, and send them to her elderly parents, if th
ex-wife did not agree to a favorable settlement Pet
tioner then placed photocopile: of the picture: in his e>
wife’s mailbox. The ex-wife informed law enforceme
authorities about the threat and, at their direction, re
eorded sub equent conversations wit! petitioner he
recorded conversations confirmed that petitioner
blackmailing his ex-wife with the sexually explicit pho
graphs. Pet. App. 2a-3a; 29/2009 Gov't C.A. Br. 4
2. On March 22, 2006, a grand jury in the South
District of Lllinois returned an indictment charging peti
tioner with one count of ban} rupucy traud, in‘ iolation «
Is U.S.C 15b2(6): one count of obstruction of JUSTICE
idlation of 18 U.S.C. 1512(¢)(2): and two counts of po
ession of child pornography, n violation of ]
—AZA(ay(b)(B Indictment 3
ndictment charged petitione
child pornography in Jan lary ZO0U6
At that time, Pe Uws.C -2hH2ZA(a) (i) made
ul to knowingly DO {
re of child pornograp! at was produced
©, naterial Loa. nave I hipped

transported in interstate a

an (child pornograp!

Wal ce pict
the prodauctiol
>

® OL a minor

( PP iV

cit len

0G Py

(I

vray

6

With respect to petitioner’s child pornography con-
victions, petitioner’s newly appointed counsel made two
arguments. 09/11/2009 Pet. C.A. Br. 28-38. First, peti-
tioner argued that the evidence was insufficient to es-
tablish that he knowingly possessed child pornography.
Id. at 28-33. According to petitioner, while the evidence
may have shown that he knew the age of his ex-wife's
sister at the time the photographs were taken in 1974,
the evidence was insufficient to show that he knew the
photographs depicted a 16-year-old girl at the time of
his unlawful possession in 2006. Jd. at 32-33. Second,
petitioner argued that the district court should have
granted a judgment of acquittal because he could have
successfully asserted the affirmative defense available
under 18 U.S.C. 2252A(c), since his ex-wife’s sister
was “an adult at the time the material was produced.”
09/11/2009 Pet. C.A. Br. 33-38. Because there was no
federal child pornography law at the time the pictures
were produced, and because the age of consent in the
State of production (Illinois) was 16 at that time, peti-
tioner argued that his ex-wife’s sister was an “adult”
when the photographs were produced. /d. at 37-38. In
other words, petitioner argued, 18 U.S.C. 2252A(c) is a
“grandfather clause” “which makes legal alleged child
pornography that depicts an individual who was an adult
at the time the material was produced.” 11/20/2009 Pet.
C.A. Reply Br. 19 (citation omitted).

Petitioner acknowledged that he “neither provided
the district court with formal notice that he intended to
invoke 18 U.S.C. [] 2252A(e)’s affirmative defense nor
explicitly raised that defense at trial.” 09/11/2009 Pet.
C.A. Br. 34. He argued, however, that the notice re-
quirement was really meant for “virtual” child pornogra-
phy cases and that, in the alternative, the court of ap-

éé

7

peals should treat petitioner as having forfeited the af-
firmative defense and, thus, review should be for plain
error. /d. at 34-36.

b. The court of appeals affirmed petitioner’s child
pornography convictions. Pet. App. 10a-15a. As to peti-
tioner’s first argument, the court concluded that the
evidence was sufficient to establish that, in 2006, peti-
tioner knew that his ex-wife’s sister had been younger
than 18 years old at the time the photographs were pro-
duced. /d. at 15a. As to petitioner’s second argument,
the court of appeals first noted that petitioner “did not
raise th{is] issue in the district court.” 7d. at lla. The
court also made clear that petitioner was not now argu-
ing that “Congress can’t criminalize the continued pos-
session of pornography that was legal when created,”
nor was he arguing “that because the photos of his
sister-in-law were not illegal when he took them, they
could not constitute sexual abuse of a minor.” /d. at 11a,
13a-14a. Instead, the court explained, petitioner was
arguing that the affirmative defense “grandfather|s] the
possession of pornography that was legal when it was
created.” /d. at lla.

The court of appeals rejected petitioner’s argument,
eencluding that 18 U.S.C. 2252A(c) could not be read
such that “anyone who happened to have pornographic
photographs of 16- and 17-year-olds taken before 19%4
would be free to market them.” Pet. App. 14a-15a. The
court reasoned that the affirmative defense under
18 U.S.C. 2252A(c) was largely irrelevant after this
Court’s decision in Ashcroft v. Free Speech Coalition,
535 U.S. 234 (2002). Pet. App. 13a-14a. When the affir-
mative defense was added to the statute in 1996, the
court explained, the purpose was “to exculpate child
pornography made with adult rather than child models,

8

at a time when the Supreme Court had not yet ruled
that the making of such pornography could not constitu-
tionally be punished, and therefore at a time when Con-
gress thought it could place the burden of proof concern-
ing the age of the model used in producing the pornogra-
phy on the defendant rather than on the government.”
Id. at 14a. The court continued, because the government
is now required to “prove beyond a reasonable doubt
that the apparent child in the pornographic image Is a
real child, the only work left for the provision creating
the affirmative defense is to require * * * that the
defendant notify the government of his intention to chal-
lenge the government’s proof that a child was used.”
[bid.; id. at 1la-12a (noting that the government’s law-
yer conceded at argument “that to prove a violation of
the statute [it] has to prove that a real-life minor, not a
computer simulation or an adult looking like a minor,
was used in the creation of the pornography”). The
court of appeals thus upheld petitioner’s child pornogra-
phy convictions.

The court of appeals held, however, that petitioner’s
convictions for both bankruptcy fraud and obstruction of
justice violated the Double Jeopardy Clause of the Fifth
Amendment. Pet. App. 3a-10a. The court also con-
cluded that the district court erred in its calculation of
intended loss for the purpose of determining the advi-
sory Guidelines range for those convictions. /d. at 15a-
21a. The court of appeals therefore remanded the case
to the district court with “directions that the judge va-
cate either the bankruptcy fraud conviction or the ob-
struction of justice conviction, recalculate the intended
loss, redetermine the guidelines sentencing range, and
resentence the defendant in accordance with 18 U.S.C.
[| 3553(a).” Td. at 22a.

ARGUMENT

Petitioner now argues that the child pornography
statute violates the First Amendment as applied to him
(Pet. 7-12), and that the interpretation of the statute
adopted by the court of appeals raises serious ex post
facto concerns (Pet. 13-15). The court of appeals’ deci
sion is interlocutory, petitioner did not raise either of
these constitutional claims below, and the court of ap-
peals did not pass on them. Because petitioner also
failed to raise either claim in the district court, they are
waived or, at most, reviewable for plain error. Petition-
er cannot satisfy that stringent standard and his newly
asserted claims do not implicate a conflict with the deci-
sions of this Court or any other court of appeals. Fur
ther review is not warranted.

1. As an initial matter, this Court’s review of peti-
tioner’s constitutional claims is unwarranted at this time
because the ease is in an interlocutory posture. See, e.g.,
VMI v. United States, 508 U.S. 946, 946 (1993) (Sealia,
J., respecting denial of certiorari) (noting that this
Court “generally await[s] final judgment in the lower
courts before exercising [its] certiorari jurisdiction”);
Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S.
251, 258 (1916) (describing the interlocutory nature of a
decision as “a fact that of itself alone furnishe[s] suffi-
cient ground for the denial of” certiorari). The court of
appeals reversed in part and remanded with “directions
that the judge vacate either the bankruptey fraud con
viction or the obstruction of justice conviction, recalcu-
late the intended loss, redetermine the guidelines sen-
tencing range, and resentence the defendant in accor-
dance with 18 U.S.C. [] 3553(a).” Pet. App. 22a. After
the district court resentences petitioner, he will be able
to raise his current claims—together with any other

10

claims that may arise during resentencing—in a single
petition for a writ of certiorari. See Major League
Baseball Players Ass’n v. Garvey, 532 U.S. 504, 508 n.1
(2001) (per curiam).

2. Review is also unwarranted because petitioner
never challenged his child pornography convictions on
First Amendment or ex post facto grounds in the court
of appeals or the district court. Accordingly, no court
has passed on these constitutional questions. This
Court’s “traditional rule * * * precludes a grant of
certiorari” when “the question presented was not
pressed or passed on below.” United States v. Williams,
504 U.S. 36, 41 (1992) (internal quotation marks omit-
ted). There is no reason to depart from that general
rule here.

In the district court, petitioner failed to even raise
the affirmative defense set forth in 18 U.S.C. 2252A(c),
or give notice as required by statute. 09/11/2009 Pet.
C.A. Br. 34. And, on appeal, petitioner made only the
statutory interpretation argument that his child pornog-
raphy convictions should be overturned because he
could have raised a successful affirmative defense under
18 U.S.C. 2252A(c), since his ex-wife’s sister was
an “adult” at the time the images were produced.
09/11/2009 C.A. Br. 33-38. Whereas petitioner now
claims that the First Amendment is implicated because
the photographs he was convicted of possessing “have
nothing at all to do with child sexual abuse, as they were
taken in the course of a relationship between consenting
adults,” Pet. 10, before the court of appeals “[hJje dlid]
not argue that because the photos of his sister-in-law
were not illegal when he took them, they could not. con-

1]

stitute sexual abuse of a minor,” Pet. App. 13a-l4a.*
Similarly, whereas petitioner now argues that his con-
victions raise ex post facto concerns because he “became
subject to criminal prosecution for possessing materials
that previously” were legal when Congress outlawed the
possession of child pornography, Pet. 13, before the
court of appeals he did “not argue that Congress can’t
criminalize the continued possession of pornography
that was legal when created,” Pet. App. iia. + imally,
whereas petitioner now argues that “it is far from clear”
that the affirmative defense provisions of 18 U.S.C.
2252A(c) could save the child pornography statute from
Kirst Amendment challenge, Pet. 11, petitioner urged
the court of appeals to overturn his convictions because
he could have successfully raised that defense at trial,
09/11/2009 Pet. C.A. Br. 33-38.

This Court should not be the first court to review
these constitutional questions. Cf. Cutter v. Wilkinson,
544 U.S. 709, 718 n.7 (2005) (“[Wle are a court of review,
not of first view.”).

3. Even if this Court were to overlook petitioner’s
failure to raise these claims in the court of appeals, this

In his petition for rehearing, petitioner suggested that the court of
appeals’ ruling conflicts with Asheroft v. Free Speech Coalition, 535
U.S. 234 (2002), since petitioner “could not have committed sexual
abuse of” his ex-wife’s sister “because she was above the age of consent
at th[at] time.” 02/26/2010 Pet. C.A. Petition for Reh’g 10-11. This
Court’s traciaonal practice, however, is “to decline to review claims
raised for the first time on rehearing in the court below.” Wells v.
Texas, 511 U.S. 1097, 1097 (1994) (O’Connor, J., concurring in denial of
certiorari), Hasley v. Reuss, 5382 F.8d 592, 595 (7th Cir. 2008) Gssue
cannot be raised for first time in rehearing petition). In any case, the
rehearing petition does not even mention the First Amendment—let

alone argue that petitioner's convictions were constitutionally invalid
for that reason.

1?

case does not squarely present the issues petitioner
seeks to raise. Because petitioner did not raise either
constitutional claim before trial or at any other time in
the district court, the claims are waived. See Fed. R.
Crim. P. 12(b)(8)(A)-(B) and (e); United States v. Peti-
tHyean, 883 F.2d 1341, 1344 (7th Cir. 1989) (“defenses and
objections based on defects in the indictment must be
raised prior to trial,” “[o]therwise, they are waived”);
United States v. Feliciano, 223 F.3d 102, 125 (2d Cir.
2000) (facial and as-applied constitutional challenges not
raised in district court were waived on appeal), cert.
denied, 5382 U.S. 948 (2001).

At most, petitioner’s newly asserted claims would be
reviewable only for plain error. See Fed. R. Crim. P.
52(b). In order to satisfy that standard, petitioner must
show that “(1) there is an ‘error’; (2) the error is ‘clear
or obvious, rather than subject to reasonable dispute’;
(3) the error ‘affected the appellant’s substantial rights,
which in the ordinary case means’ it ‘affected the out-
come of the district court proceedings’; and (4) ‘the error
seriously affect{s] the fairness, integrity or public repu-
tation of judicial proceedings.” See l/nited States v.
Marcus, 13808. Ct. 2159, 2164 (2010) (brackets in origi-
nal) (quoting Puckett v. United States, 129 8. Ct. 1423,
1429 (2009)). Petitioner cannot establish error, let alone
error that is “obvious” under current law. See //nited
States v. Olano, 507 U.S. 725, 734 (1993) (“At a mini-
mum, a court of appeals cannot correct an error pursu-
ant to Rule 52(b) unless the error is clear under current
law.”).

a. Petitioner argues (Pet. 7-12) that 18 U.S.C.
2252A(a)(5)(B) violates the First Amendment, as applied
to him, because the 16-year-old child depicted in the
photographs was actually an “adult” at the time the pic-

tures were produced—and, thus, his possession of the
sexually explicit, but nonobscene, images was constitu
tionally protected. To reach the conclusion that his ex-
wife’s sister was an “adult” at the time the pictures were
produced, petitioner appears to argue that (i) child por-
noyraphy can only be banned consistent with the First
Amendment if the images depict the crime of child sex
abuse, Pet. 10-12, and (ii) the photographs in question do
not involve the crime of child sex abuse because, in 1974
when the photographs were produced, the age of consent
in Illinois was 16 and there was no federal child pornog-
raphy law on the books, Pet. 2-8. That argument fails.

As this Court held in New York v. Ferber, 458 U.S.
747 (1982), depictions of real children engaging in sexu-
ally explicit conduct lack First Amendment protection.
Petitioner nevertheless asserts that the First Amend-
ment does protect child pornography as long as produc-
tion of the underlying image was not itself a crime. If
petitioner’s argument were correct, the market for child
pornography produced overseas, in countries where
there is no age of consent (or where the age of consent
is, for example, 12 years old) and where the production
of child pornography is legal, would be constitutionally
protected. This Court’s cases provide no support for
such a narrow reading of Ferber.

Petitioner relies on Ashcroft v. Free Speech Coali-
tion, 535 U.S. 234 (2002), but such reliance is misplaced.

In that ease, this Court addressed the narrow issue of

whether the generally applicable criminal ban on “vir-
tual” child pornography in the Child Pornography Pre
vention Act of 1996, Pub. L. No. 104-208, Div. A, Tit. I,
§ 101(a), 110 Stat. 3009, survived constitutional scrutiny.
In reaching the conclusion that the ban violated the
First Amendment, the Court distinguished “virtual”

14

child pornography from child pornography that depicted
actual children. F'ree Speech Coalition, 535 U.S. at 240.
Sexually explicit materials depicting actual children ean
be banned even if not obscene, the Court explained, be-
cause the use of a child in the production of such mate
rial exploits the child and is itself a form of sexual abuse.
Td. at 240, 249-250. The Court did not, however, hold
that the sexual exploitation of a child occurs only when
the law in effect at the time of production criminalizes
the underlying act. Nor would such an approach make
sense. Whether production of the images constitutes
child sex abuse in that place or at that time, the contin-
ued possession and dissemination of those images re-
mains a “permanent record of the children’s participa-
tion and the harm to the child”—harm that is not re-
stricted to then-chargeable sexual abuse. Ferber, 458
U.S. at 759; cf. Free Speech Coalition, 535 U.S. at 242
(explaining that a separate provision, which prohibited
the computer alteration of innocent pictures of real chil-
dren, was not challenged but would “implicate the inter-
ests of real children and are in that sense closer to the
images in Ferber’).

In any event, contrary to petitioner’s suggestion
(Pet. 12), the fact that petitioner’s then-sister-in-law was
above the age of consent in Illinois at the time the photo-
graphs were taken does not mean that petitioner’s sex-
ual relationship with a 16-year-old girl was lawful at that
time. In 1974, any person age 14 or older who had sex-
ual intercourse with “any person under the age of 18”

was guilty under Illinois law of “contributing to the sex-
ual delinquency of a child.” People v. Keegan, 286
N.E.2d 345, 346 (Ill. 1971), cert. denied, 406 U.S. 964
(1972); ef. People v. Beksel, 261 N.E.2d 40, 44-45 (IIL.
App. Ct. 1970) (allowing the commitment of individuals

Ld

who are “suffering from a mental disorder” and have
“demonstrated propensities toward acts of sexual as-
sault or acts of sexual molestation of children,” and de
fining “children” to mean people under the age of 18)
(emphasis omitted).

In sum, the First Amendment does not preclude Con
gress from banning the possession of sexually explicit
images of children under 18 that were created before
1984 in the more than a dozen states (or federal territo-
ries) where the age of consent was 16 years old. See
Ferber, 458 U.S. at 764 n.17. Rather, only “nonobscene,
sexually explicit materials involving persons over the
age of 17 are protected by the First Amendment.”
United States v. X-Citement Video, Inc., 513 U.S. 64, 72
(1994).

b. Petitioner contends (Pet. 13-15) that his convic
tions “raise|| significant ea post facto concerns.” That
claim is similarly lacking in merit.

Section 2252A(a)(5)(B) does not criminalize conduct
that occurred wholly before the current version of the
statute was enacted. To the contrary, petitioner’s con
victions clearly rest on post-2mendment conduct. Peti-
tioner is being punished for his possession of child por-
nography in 2006—16 years after the statute was
amended to criminalize the possession of child pornogra-
phy involving children under the age of 18. See p. 4 n.1,
supra. Thus, Section 2252A(a)(5)(B) does not violate the
Ex Post Facto Clause because it does not “operate| | ret
roactively” in the sense of applying to conduct that was
“completed before its enactment.” /ohnson v. United
States, 529 U.S. 694, 699 (2000); see California Dep't of
Corr. v. Morales, 514 U.S. 499, 505 (1995); Collins v.
Youngblood, 497 U.S. 37, 49 (1990); Miller v. Florida,
482 U.S. 423, 430 (1987)

Lb

A number of courts have thus correctly held that a
conviction for the possession of child pornography does
not violate the Ex Post Facto Clause, even if the defen
dant first obtained possession of the images prior to the
effective date of the criminal prohibition. See, e.¢.,
United States v. Paton, 110 F.3d 562, 564-565 (8th Cir
1997); United States v. Bateman, 805 F. Supp. 1053,
1055 (D.N.H. 1992); United States v. Porter, 709 F.
Supp. 770, 774 (E.D. Mich. 1989), aff'd, 895 F.2d 1415
(6th Cir.), cert. denied, 498 U.S. 1013 (1990); ef. United
States v. Trupin, 117 F.3d 678, 686-687 (2d Cir. 1997)
(finding no ex post facto violation where defendant was
prosecuted for possession of a stolen painting he ac
quired in 1980, before the 1986 amendment that made it
a federal crime to “possess” stolen goods that have
crossed state lines), cert. denied, 522 U.S. 1051 (1998);
United States v. Waters, 23 F.8d 29, 36 (2d Cir.) (same
with gun possession), cert. denied, 513 U.S. 867 (1994).

Contrary to petitioner’s suggestion (Pet. 18-15),
United States v. Juvenile Male, 590 F.3d 924 (9th Cir.
2010), petition for cert. pending, No, 09-940 (filed Feb.
9, 2010), is inapposite. In that case, the Ninth Circuit
held that the application of the registration and notifica
tion provisions of the Sex Offender Registration and
Notification Act (SORNA), Pub. L. No. 109-248, Tit. I,
120 Stat. 590, to a juvenile who was adjudicated delin
quent under the Federal Juvenile Delinquency Act, 18
U.S.C. 5031 et seg., before SORNA’s enactment violated
the Ex Post Facto Clause. The defendant’s juvenile ad
judication which triggered the registration requirement
occurred before the enactment of SORNA; the disputed
issue is whether the registration and notification re
quirements constitute “punishment” for ex post facto
purposes. See Pet. at 14-26, Juvenile Male, supra (No

09-940), available at
petitioner's po:
the
2252A(a)(5)(B)

petition for a writ of certior

after (and

th)

enactment
hove ni
would have no bearit yon t

Case

Accordingly, there 1

2010 WL
session of child pornography

he outcome of petitione!

no reason to hold this pet

tion pending a ruling or the Juvenile Mats pevillor
CONCLUSION
he petition for a writ of certiorari should b
a4 per ull IDMItl
K P '
| { f
} 4 B rt i
nif 4//
1M. 1]
; , } i
his Court certified a question its |
Supreme Court to determine whether the case was moot, and reser
further proceeding See United Stat Juvenile Male, 130
9018 (2010) The certified question has been bmefed and the i
chneduled for ars ment before the Montan upreme ( irtin.!

1 |

31758. Here, in cont
occeurre

amendment) of Sect
(Court were to grant the
‘ari in Juvenile Male, th:

rf

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2302%3A3. Public record. Not legal advice.