The opinion of the court was delivered by: RODRIGUEZ
This opinion addresses the novel issue of whether a defendant was properly convicted of transporting child pornography across state lines, where the jury did not have the benefit of viewing the visual depictions in question. To paraphrase an old adage, this court must decide whether somewhat less than a thousand words (in the form of testimony by a government witness) can take the place of a picture.
II. FACTS AND PROCEDURAL HISTORY
On September 3, 1987, a federal Grand Jury indicted Robert David Villard on three counts. Count One alleged that on July 23, 1984, Villard transported a videocassette from New Jersey to California which visually depicted "a minor male engaging in the lascivious exhibition of his genitals and pubic area" in violation of 18 U.S.C. § 2252(a)(1). This charge stemmed from a trip made by Villard in 1984 from his home in Van Nuys, California to New Jersey for the purpose of visiting Henry Feltman, who later became a government informant. Feltman testified at trial that prior to Villard's 1984 visit, Feltman made a videotape of a minor male in various poses, some of which included nudity and some of which depicted the minor male with a partial erection. See Trial Testimony of Henry Feltman, March 16, 1988 at 4-19. The government sought to demonstrate at trial that during his 1984 visit to New Jersey, Villard copied portions of this videotape and then took the copied portions back to California.
Count Two charged that on November 14, 1986, Villard transported from California to New Jersey three magazines and the front and back cover of a fourth magazine, all of which depicted "minor males engaging in lascivious exhibition of their genitals and pubic areas," also in violation of 18 U.S.C. § 2252(a)(1). Count Three involved the same materials as Count Two, and alleged that on November 16, 1986, Villard returned to California with those materials.
Prior to trial, defendant moved to dismiss the indictment on the grounds that the Grand Jury had never reviewed the allegedly pornographic materials upon which the charges were based. The court denied that motion. Defendant also moved to sever Count One from Counts Two and Three. That motion was also denied.
Trial commenced before a jury on March 15, 1988. At the close of the government's case, defendant moved for a judgment of acquittal on all counts. With respect to Count One, the government was unable to produce the original videotape which Feltman had created in 1984 of the minor male. Nor was the government able to produce the portions of that videotape which Villard had allegedly copied and transported from New Jersey to California. Consequently, the government sought to rely on testimony by Feltman which indicated that Villard had viewed the entire videotape in New Jersey and had expressed a greater enjoyment of those portions in which the minor male had appeared in the nude. However, the only evidence that specific portions of the videotape had been copied by the defendant was a reference by Villard in 1986 to the fact that he had duplicated two small segments of the video in 1984. Government Exhibit 33, Transcript of F.B.I. surveillance tape at 652-33-5. While there was some indication that the duplicated segments had contained nudity, Id. at 648-33-2, 3, it was impossible for the jury to identify a specific visual depiction which the defendant had transported to California in violation of federal law. Therefore, the government argued that the jury should be permitted to determine first, whether any specific portions of the original videotape constituted child pornography (the original videotape had been described to the jury by Feltman, who had produced it; the minor male had also testified as to his involvement in the making of the video) and second, whether the duplicated portions of the tape which Villard transported to California contained pornographic depictions, without specifying which one.
In light of the inability of the jury to determine that a specific video depiction was pornographic and had been transported to California in violation of federal law, the court granted defendant's motion to enter a judgment of acquittal on Count One.
The court reserved judgment on the defendant's motion for a judgment of acquittal on Counts Two and Three. Four items formed the basis of the government's allegations in Counts Two and Three.
1. The front cover of a magazine called Wonder Boy No. 70
The actual cover of Wonderboy No. 70 which Villard transported to California was seized in his apartment in Van Nuys at the time of his arrest. This court suppressed that evidence because it was the fruit of an illegal search. See U.S. v. Villard, 678 F. Supp. 483 (D.N.J. 1988). However, the government acquired an advertisement which featured, inter alia, the front cover of that same magazine. Since the advertisement was obtained independently of the illegal search, the photograph of the front cover of Wonderboy No. 70 was admitted into evidence. Mr. Feltman testified that it was an accurate likeness of the magazine cover which he had seen in Mr. Villard's possession. This depiction featured a male seated with his legs open towards the viewer. He was clad in only a pair of brief shorts. The male had a smile on his face. Protruding clearly from one leg of the shorts was an erection. There was no expert testimony of the male's age. The government argued that he was clearly under the age of eighteen, as required for a violation of section 2252(a)(1). Surveillance tapes made while the defendant and Mr. Feltman were viewing the materials in New Jersey recorded Mr. Villard speculating that the male might be fifteen, sixteen, or seventeen years of age. Government Exhibit 34, Transcript of F.B.I. Surveillance Tape at 658-34-7.
With respect to the front cover of Wonderboy No. 70, as with each of the materials which formed the basis of Counts Two and Three, the jury was asked the following special interrogatory: "Do you find unanimously and beyond a reasonable doubt that the outside front cover of a magazine referred to as 'Wonderboy number seventy' contained a visual depiction of a minor engaged in sexually explicit conduct?" The jury responded to this interrogatory in the negative.
2. The inside front cover of the Wonderboy No. 70 magazine
The jury was not able to view the actual picture inside the front cover of Wonderboy No. 70. However, the government presented surveillance tapes of Feltman and Villard looking at the magazine cover. Feltman then testified and described what the two men had been viewing:
Q. From your recollection, please describe that picture now as accurately as you can to the members of the jury.
A. Okay. There was a picture of a boy on the inside of the front cover, he appeared to be 13, 14 years of age. He was fully nude, he had a full erection. And he was taken in an outdoor setting full-length type of picture. And he was facing like towards his left looking out that way.
A. I would consider [sic] to have been a far away shot.
Q. Now explain what you mean.
A. Far away meaning you could see the surrounding area that he was in. Clearly tell that it was an outdoor setting. And clearly identified him from head to toe.
Q. How much of the page did he take up?
A. It was a full page photograph.
Trial Testimony of Henry Feltman, March 17, 1988 at 15-16.
When asked in a special interrogatory whether they found the inside front cover of Wonderboy No. 70 to have depicted a minor engaged in sexually explicit conduct, the jury responded in the negative.
3. A specific photograph contained within the magazine Jeans No. 8
Although the government did not possess the magazine Jeans No. 8 at the time it indicted Villard, it obtained a copy from a store in France prior to trial. That copy was submitted to the jury. See Government Exhibit No. 42. Jeans No. 8 contained photographs of young boys throughout. There are thirty-nine pages of photographs in all. Most of the photos depict young men in clothing, although many are clad in only their underwear. The magazine appears to be a photographic essay of young males at the seashore. All text is in French.
Several of the photos depict fully-nude young males. For example, page twenty-five depicts a nude young male standing in shallow water. His arms are thrown behind his head. His back is arched and his genitals are clearly visible. Interestingly, the government did not contend that this photograph, or several others which displayed the genitals of young men, constituted a lascivious exhibition of the genitals or pubic area of a minor. The government alleged that a single photo on page seventeen violated section 2252(a)(1). Government Exhibit No. 42A. The photo depicts a young male in a kneeling position. He is nude except for a sock on one foot, a wristwatch, and a pair of pants which are draped across his knees. The boy's sneakers and shirt are next to him on the floor. Most of the pubic area is covered by the subject's right hand.
When asked in a special interrogatory whether this picture depicted a minor engaged in sexually explicit conduct, the jury responded in the negative.
4. Photographs contained within a magazine called Beach Boys No. 2
Beach Boys No. 2 was not admitted into evidence. The jury saw F.B.I. surveillance tapes of Feltman and Villard perusing this magazine and commenting upon it. It was impossible to make out any details of the magazine from the video images; however, it obviously contained several pages. The pictures in question were apparently contained on two pages which were across from one another in the magazine. The jury heard and read the following transcribed portion of the conversation which took place when the two pages were being viewed:
Feltman: Excellent. Oh, even better. This is what, Beach Boy Number 2. In Paris, huh?
Villard: Yeah, I went to this address, they were closed up and they didn't open until Tuesday and I left Sunday . . . or something like that.
Villard: So there was no way I could rearrange my trip even though I . . .
Feltman: Now what kind of store would you find these in?
Villard: Uhh, I bought these in a gay bookstore.
Feltman: O.K. Certainly un . . . got nothing on there.
Villard: It's done with mirrors.
Villard: They have mirrors.
Feltman: I wonder if he's asleep. He's three quarters hard. Maybe he sleeps in the buff like that. He's pretty hairy, though, God but not just much under the arm.
Government Exhibit 34, Transcript of F.B.I. Surveillance Tape at 660-34-9.