On Appeal from the United States District Court for the District of New Jersey (D.C. Criminal No. 87-00326-01).
Sloviter and Cowen, Circuit Judges, and Roth, District Judge.*fn*
COWEN, United States Circuit Judge
In this unusual case, we are called upon to decide whether the district court, following the jury's conviction of the defendant on charges of transporting child pornography across state lines, properly granted the defendant's motion for judgment of acquittal. The specific issue is whether sufficient evidence was presented to allow the jury to determine that what the defendant transported was actually child pornography, given that the photographs at issue were unavailable and the only evidence as to their contents consisted of the testimony of a witness who had seen the photographs. We hold that the description in this case did not constitute sufficient evidence to support a conviction for the crimes charged. Therefore, we will affirm the order of the district court.
The opinion of the district court presents an extensive discussion of the facts and procedural history of this case. See United States v. Villard, 700 F. Supp. 803 (D.N.J. 1988). We will, however, provide a somewhat briefer version as background for this appeal. On September 3, 1987, a federal grand jury indicted Robert David Villard on three counts. Count One alleges that on July 23, 1984, Villard transported from New Jersey to California a videotape depicting "a minor male engaging in the lascivious exhibition of his genitals and pubic area" in violation of 18 U.S.C. § 2252(a)(1). At the close of the government's case, Villard's motion for judgment of acquittal was granted as to Count One. Count One is not at issue on this appeal.
Count Two charges that on November 14, 1986, Villard transported from California to New Jersey three magazines and the front and back cover of a fourth magazine, depicting "minor males engaged in lascivious exhibition of their genitals and pubic areas" also in violation of 18 U.S.C. § 2252(a)(1). Count Three alleges that on November 16, 1986 Villard returned to California with the same materials designated in Count Two.
On December 1, 1987, the district court denied Villard's motion to dismiss the indictment. A jury trial commenced on March 15, 1988. At the close of the government's case, Villard moved for a judgment of acquittal on all counts. The court granted Villard's motion to enter judgment of acquittal on Count One, and reserved judgment on Villard's motion for a judgment of acquittal on Counts Two and Three. The government's allegations in Counts Two and Three are based on four items. With regard to three of the items, the jury indicated in answers to special interrogatories that it did not find the materials to have depicted a "minor engaged in sexually explicit conduct." 700 F. Supp. at 805-06.
The fourth item, for which Villard was convicted, consists of four photographs contained in a magazine entitled Beach Boys No. 2. Beach Boys No. 2 was not admitted into evidence, apparently because Villard's copy was destroyed and the government was unable to procure another copy. However, the jury viewed surveillance videotapes showing Villard and a government informant, Henry Feltman, perusing and commenting upon the magazine. It was impossible to discern any details of the magazine from the video images, but the pictures in question apparently were 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 occurred while Villard and Feltman were viewing the two pages:
Feltman: Excellent. Oh, even better. This is what, Beach Boy Number 2. In Paris, huh?
Villard: Yeah, I went to the 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.
After the jury was shown a portion of the surveillance videotape containing the above conversation, Feltman testified as follows:
Q. Now which magazine are you looking at that [sic] that point?
A. I'm looking at Beach Boys Number two.
Q. Now you've just talked about some photos and Mr. Villard talked about mirrors. You're looking at the magazine, correct?
Q. In front of you. Please explain to the jury as accurately as you can the description of the, of the depictions on those pages.
A. Okay. I was looking at Beach Boys number two. The magazine was opened like this. You could see there was two photographs on each page. Like a left page and a right page. Now these pictures were all of the same boy. This boy was approximately 14, 15 years old. He was fully nude. He was lying on what appeared to be a bed or a mattress. And his eyes were closed as though he was sleeping. However, looking at the two pictures on the left page, versus the two pictures on the right page, they were very, very similar. They pretty near looked the same. This is where Bob said it looks like it was done with mirrors. This was, page was a reflection of the left page. The right page, vice versa. It could work either way. However, I don't believe he was asleep because there were slightly variations between each photograph. The way the boy was lying there had been a little bit of movement each time. His knees were bent slightly upwards during this.
A. And he had three quarters, you know, like a three quarters erection, semi erect.
Q. Once again, how much of the, each photograph did this child take up?
A. Okay, these were close, closein [sic] type photographs showing him from his head down to approximately knee level. That they filled the photographs on each page. They filled the entire page.
As the district court noted, it could be inferred that the following conversation, which occurred on the next portion of the surveillance tape which was played for the jury, referred to the same set of photographs:
Feltman: Would you keep them books at home, or do you consider them too risque?
Villard: No. I don't keep them out where you can see them at home. But I keep them ...