Saturday, November 6th, 2010

It’s Not In The Timing

United States v. Davis, No. 09-3636-cr (2d Cir. November 5, 2010) (Newman, Raggi, CJJ, Rakoff, DJ)

Williams Davis was convicted, after a jury trial, of inter alia, producing child pornography, and was sentenced to 120 years’ imprisonment. This opinion address the novel issue of whether the defendant must know that the pornography will be transmitted in interstate commerce at the time he produced it.

This was an unusually ugly case. Davis, who had been convicted in 1991 of sexually assaulting his daughter and niece, and in 2007 of kidnapping and raping a twelve-year-old girl, also sexually abused his step-daughter in 2006, and apparently photographed some of the activity. When his wife found out about the abuse she evicted him from their apartment, but Davis left behind a safe. Eventually, the wife gave the safe to police officers, who opened it and found CD’s containing the child pornography.

Davis was convicted of violating 18 U.S.C. § 1951(a) which makes it a crime to induce a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of the conduct, if the defendant knows or has reason to know that the visual depiction will be transported or transmitted in interstate or foreign commerce or mailed.

During deliberations, an extremely astute and diligent jury, “identifying an issue that had escaped the attention of trial counsel” – neither side had requested a jury instruction on this issue – “and that apparently has not been adjudicated in any other court,” asked whether § 2251(a) requires the defendant to know that the visual depiction will be transported in interstate commerce “at the moment the picture is produced or whether” that knowledge can come about later.

The district judge replied that the defendant “did not have to know or have reason to know” that fact “at the moment that the visual depiction was produced.” All that was required, the judge went on, was proof beyond a reasonable doubt “that the defendant knew or had reason to know that the visual depiction at issue would be transported in interstate or foreign commerce or mailed at any time prior to … the date on which the visual depiction was recovered” by the police.

On appeal, the circuit, which seemed to be striving mightily to affirm, did so.

First, while the court agreed that the “words of the statute do not yield a clear answer” because the statute “neither explicitly requires knowledge of future interstate transmission to exist at the time the visual depiction is produced nor explicitly contemplates that the knowledge might be” acquired later, it refused to apply the rule of lenity because, according to the court, the “simple existence of some statutory ambiguity” is “not sufficient [its] warrant application.”

Thus while there was no legislative history on this point, the circuit concluded that not requiring contemporaneous knowledge was consistent with a general congressional purpose to “reach those who produce child pornography and thereafter affect interstate commerce,” even though this finding was made when Congress amended other parts of § 2251(a).

The court also supported its holding by looking closely at the statute itself. It pointed out that the statute has three clauses. The first is the one at issue here. The second covers production of child pornography using materials previously shipped in interstate commerce, and the third covers visual depictions that have themselves been transmitted after their creation. The court pointed out that both the second and third clauses “specify events that need not be contemporaneous” with the production of the images. The second clause covers interstate shipments that occurred before the images were made, while the third obviously covers interstate shipments after the depiction is made. Thus, under the “whole act” rule, the court decided that the “first clause … best fits with the second and third clauses if a contemporaneous knowledge element is not read into the statute.”


It is often remarked that bad facts make bad law. And here, while it is difficult to muster much sympathy for Davis, the reasoning supporting this opinion is unusually thin.

First, the court’s explanation of why the rule of lenity should not apply seems just wrong. In remarking that a “simple ambiguity” is not enough, the court relied on a Supreme Court case, Muscarello v. United Sates, 524 U.S. 125, 138 (1998). But the language that the court relies on is, at best, incomplete. Muscarello construed the word “carry” in 18 U.S.C. § 924(c) to include carrying a firearm in a vehicle, instead of limiting it to carrying a firearm on one’s person. And, while it is true that the Court rejected the rule of lenity there, Muscarello is nothing at all like this case. First, there the statute actually contained language that covered the question at issue – the word “carry.” The statute here, by contrast, says nothing at all about the question at issue. Moreover, the Court in Muscarello settled on what it called the “generally accepted contemporary meaning of the word carry,” which would suggest that the Court did not even truly view the statute as ambiguous at all, and that its discussion of the rule of lenity was just a response to the dissent, and hence dicta. That is another important distinction; here, the circuit began by agreeing that the statute was ambiguous. Finally, the Muscarello Court suggested that the rule of lenity would apply if all the court can do is “guess as to what Congress intended.” This case comes pretty close to that: the statute is completely silent on the issue, and only the legislative history contains only general language about Congress’ disdain for sex offenders in a finding made after the relevant portion of the statute was enacted. If the rule of lenity does not apply when the statute is silent and there is no direct legislative history, when does it ever apply?

The circuit’s analysis of the statue is equally unconvincing. If clause two covers interstate commerce before the depiction is made, and clause three covers interstate commerce after the depiction is made, it would seem perfectly consistent with this scheme to construe clause one as interstate commerce during the creation of the depiction: before, during and after makes more sense than before, after and after. The court’s unelaborated mention of the so-called “whole act” rule hardly supports its contrary reading. That rule simply requires that statutes be read to give effect to every provision, rendering none superfluous, and that each section be read in the context of the whole statute, not in isolation. But that rule gives no real substantive guidance here; under it, the alternative reading of the statute described above is just as convincing as the court’s.

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