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In a case of first impression, the ambiguity in a federal statute has led the 2nd U.S. Circuit Court of Appeals to reverse the conviction of a man arrested for possession of child pornography. In U.S. v. Dauray, 99-1253, a divided court, applying the rule of lenity, ruled in favor of the defendant, who had been sentenced to serve three years in prison. In 1994, an environmental enforcement officer found Charles Dauray sitting in his car in a state park in possession of several pictures depicting unclothed minors. Four years later, a federal grand jury indicted Dauray with possession of child pornography under the Protection of Children Against Sexual Exploitation Act. 18 U.S.C. �2252(a)(4)(B). The statute, which has since been amended, punished the possession of “3 or more books, magazines, periodicals, films, videotapes, or other matter” that “contain any visual depiction” of a minor engaged in sexually explicit conduct. The explicit conduct is defined, in part, as “actual or simulated — lascivious exhibition of the genitals or pubic area of any person.” The jury that convicted Dauray found that four of the items found in his possession met the statutory definition of a “lascivious exhibition.” U.S. District Judge Janet B. Arterton, who had reserved judgment on a pre-trial motion to dismiss the indictment for failure to charge an offense, denied the motion post-trial and sentenced Dauray to prison. On appeal, Dauray raised the issue of whether the individual pictures found in his possession could be considered “other matter which contain any visual depiction,” under the statute. Writing for the 2nd Circuit, Chief Judge Ralph K. Winter said there was no plain meaning to terms “contain” or “other matter.” “There is no doubt that a pictorial magazine is ‘matter’ that ‘contains’ visual images,” Winter said. “But no court that has construed Section 2252(a)(4)(B) has considered whether a loose photograph clipped from such a magazine is itself ‘matter’ that ‘contains’ a visual image.” In this case, he said, “the phrase ‘other matter’ should be construed to complete the class of items or things in the list preceding it, namely ‘books, magazines, periodicals, films, (or) videotapes.’” While Dauray contended that the items listed, such as books, are picture containers that hold many visible depictions, the government argued for a broader interpretation, one that would include an individual photograph. And Dauray also argued that by comparison, other parts of the statute prohibit any visual depiction of child pornography at all. AIMED AT COLLECTORS? “According to Dauray,” Winter said “… the different drafting demonstrates that Congress knew how to prohibit the possession of individual pictures if it wanted to do so.” By contrast, he said the government could argue that Congress imposed a threshold number of three because it “did not want to cast so fine a net in the context of mere possession in order to assure that the accidental possessor of one piece of pornography avoids liability while the collector does not.” But Winter said that either interpretation would produce absurd results. “Dauray’s reading would prohibit the possession of three books, each containing one image, but allow the possession of stacks of unbound photographs,” Winter said. “Equally absurd, the government’s reading would prohibit the possession of three individual photographs … but allow the possession of two thick illustrated tomes.” Winter said that after searching for a plain meaning of the words in the statute, applying canons of statutory construction and resorting to legislative history, “we have done what we can.” “And we are left with no more than a guess as to the proper meaning of the ambiguous language here,” he said, adding that the government had conceded that Dauray would not have violated the statute if his pictures had been found in a bound photo album “rather than an unbound stack.” Finding that the statute therefore did not give Dauray fair notice, he said, “we must apply the rule of lenity and resolve the ambiguity in Dauray’s favor.” In a brief dissent, Judge Robert Katzmann said, it “makes sense, given the statute’s purposes, that a photograph could be understood, quite naturally, to ‘contain’ a visual depiction.” Assistant United States Attorney Peter A. Clark represented the government. Assistant Federal Defender Gary D. Weinberger represented Dauray.

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