USCA1 Opinion

March 2, 1994
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-2003
UNITED STATES,
Appellee,
v.
DANIEL A. GENDRON,
Defendant, Appellant.
_____________________

ERRATA SHEET

Please make the following correction in the opinion in

the above case released on February 28, 1994:
Appendix, Page 44, line 4:
before the word "child".

insert

the word

"suspected"

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 92-2003
UNITED STATES,
Appellee,
v.
DANIEL A. GENDRON,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Jose Antonio Fuste,* U.S. District Judge]
___________________
____________________
Before

Breyer, Chief Judge,

___________
Boudin, Circuit Judge,
_____________
Pollak,** Senior District Judge.
_____________________
____________________

Jonathan S. Sales, by Appointment of the Court, with whom The

_________________
____
Office of William P. Homans, Jr. was on brief for appellant.
________________________________
Robert E. Richardson with whom A. John Pappalardo, United Sta
____________________
__________________
Attorney, and James F. Lang, Assistant United States Attorney, were
_____________
brief for appellee.
____________________
February 28, 1994
____________________
_____________________

* Of the District of Puerto Rico, sitting by designation.

** Of the Eastern District of Pennsylvania, sitting by designation.

BREYER, Chief Judge.

____________
received

videotape

that

Daniel

contained

Gendron ordered and

child

pornography.

Though he did not

was part
child

know it, the firm that sent

of a law

him the tape

enforcement operation designed

pornography buyers.

to catch

jury subsequently

convicted

Gendron of knowingly receiving child pornography through the

mails.

18 U.S.C.

2252(a)(2).

conviction, claiming

that the child

unconstitutional, that
him,
in

He now

appeals

that

pornography statute is

the government

unlawfully entrapped

and that the government's search warrant (for the tape

his

house)

considering

was

constitutionally

these and other

defective.

related claims, we

After

affirm the

conviction.
I
The Statute's Constitutionality
_______________________________
The child pornography statute reads as follows:
(a)

Any person who -______________

. . .
(2) knowingly receives, or distributes,
__________________
any visual depiction
that has been
________________________________________
mailed,
or
has
been
shipped
or
______
transported in interstate or foreign
______________
commerce, or which contains materials
________
which have been mailed or so shipped or
transported, by any means including by
computer, or knowingly reproduces any
visual depiction for distribution in
interstate or foreign commerce by any
-33

means including by computer

the mails, if -__

or through

(A)

the producing of such visual

______________________________
depiction involves the use of a
___________________________________
minor engaging in sexually explicit
___________________________________
conduct; and
____________
(B)

such visual depiction is of

______________________________
such conduct;
_____________
. . .
shall be punished
_________________
(b) . . . .
18 U.S.C.
that

the

as provided in

2252(a)(2) (emphasis added).

Ninth

permitting a

Circuit has

conviction of a

interpreted

subsection

Gendron points out

this

statute as

person who does not know the

______________

child-pornographic nature of the material received, and, for

______

that

reason, has

found it

unconstitutional.

States v. X-Citement Video, 982 F.2d 1285 (9th

______
_________________
petition for cert. filed, 62
________________________

See
___

United
______

Cir. 1992),

U.S.L.W. 3360 (1993).

He says

we should do the same.

The Ninth Circuit, in United States v. Thomas, 893
_____________
______
F.2d 1066

(9th Cir.), cert. denied, 498

_____________

considered the scope

held

modifies

only

the

statute's

It
word

(or "reproduces"), not its subclause (A) or (B).

Consequently, it "does
that the

(1990),

of the statute's word "knowingly."

that "knowingly"

"receives"

U.S. 826

not require" that a

pornography he .

defendant "knew

. . received involved

a minor."

-44

Id.
___
Ninth

at 1070.
Circuit

Two

years later,

pointed

out

in X-Citement Video, the

_________________

that

the

statute,

as

so

interpreted,

would

permit

"knowingly receives"
video

contains

conviction

a video,

child

of

person

but does not know

______________

pornography.

who

that the

Because

that

interpretation would permit

conviction of a person

with an

innocent

the

statute

state

of

unconstitutional.
New York
_________

v.

mind,

court

found

the

X-Citement Video, 982 F.2d at

_________________

Ferber,
______

458

U.S.

747,

765

1292; see
___

(1982)

(child

pornography statutes must involve "some element of scienter"

to pass constitutional muster).
We do

not accept

the Ninth

Circuit's conclusion

that the statute is unconstitutional, however, because we do

not agree
In

our

with the statutory

view,

and

in

considered the matter

premise set forth

the

view

of

in Thomas.
______

all courts

to

have

since the X-Citement Video decision,

_________________

see United States v. Edwards, No. 92-CR-884, 1993 WL 453461

___ ______________
_______
(N.D.

Ill. Nov.

4, 1993);

Supp. 582 (W.D. Ky. 1993);

Supp. 386

(D. Kan.

Supp. 311

(D.S.C.

modifies

not

statute's

only

United States
_____________

1993), the

description

statute's

word
of

831 F.

United States v. Kempton, 826 F.

_____________
_______

1993); United States

_____________

the

v. Long,
____

the
-55

v. Prytz,
_____
word

"receives,"

but

"receive[d]"

822 F.

"knowingly"
also

the

material's

pornographic content.

That

is to say,

we understand

the

statute

to require for conviction that the government prove

not only

that the defendant "knowingly receive[d]" material

that

he knows

contains a

"visual depiction"

of a

person

"engaging in sexually

explicit conduct," but also

that the

defendant

the person

is

a minor.

Accord Edwards, 1993 WL 453461 at *5; Long, 831 F.

______ _______
____

Supp. at

586; Kempton, 826

_______

Supp. at

knows that

so depicted

F. Supp. at 389;

Prytz, 822 F.
_____

321.
We

concede that

one

cannot know

automatically,

simply from the position of the words in the sentence, just

______________________________________________________
which

of

"knowingly"

the

words

is meant to

fact

simply reflects the

and

parts of statements,

from

context.

The

following
modify.

"knowingly"
However,

more basic fact

word

that linguistic
that statements,

quite often derive

sentence "John knows

the

their meaning

that people speak

Spanish in Tegucigalpa,
taken by itself,
knows

which is the capital

leaves us

uncertain whether

of Honduras,"
or not

John

that Tegucigalpa is the capital of Honduras; but, the

context

of

the story

context

that includes

in

which

the sentence

other sentences,

may

appears,
clear up

a
our

uncertainty and leave us with no doubt at all.

-66

Similarly,
statutes,
purpose

when

they draw
and

elements of

background

states of

the offense.

the prosecutor need

in respect to
assault victim

interpret

upon context, including

various

determine which

courts

legal

mind accompany

criminal

the statute's

principles,

to

which particular

Thus, courts normally

hold that

not prove the defendant's state of mind

"jurisdictional facts" (for example,

that an

was a federal officer, or that stolen checks

_______

moved in the mail),

___________
the crime's other
420 U.S.

whatever the mental state

elements.

required for

E.g., United States

____ _____________

671, 676-86 (1975);

v. Feola,
_____

Barnes v. United States, 412

______
______________

U.S. 837, 847 (1973); United States v. Blassingame, 427 F.2d

_____________
___________
329, 330 (2d Cir. 1970),
see generally S.
_____________
(1981).
the

Rep. No. 307, 97th Cong.,

Context (what

reason

why

etc.), in addition

cert. denied, 402 U.S. 945 (1971);

____________
1st Sess. 72-74

ordinarily counts as

Congress

mentions

bad behavior;

jurisdictional

to the position of words

facts;

in a sentence,

helps a court decide how, and when, to interpret statutes as

incorporating states of

mind.

See, e.g.,
___ ____

Blassingame, 427
___________

F.2d at 330.
The

background

context

that, when a criminal statute

here

includes the

fact

is totally silent about state

of mind (as is commonly the case), courts nonetheless assume

-77

that

Congress intended

knowledge with respect

major crimes.
(1985)

require

should

kind

of

guilty

elements of

United States, 471 U.S. 419, 426

_____________
not

mens rea");
________

Gypsum Co., 438

__________

some

to major wrong-creating

Liparota v.
________

(courts

"requiring no

to

read

criminal

United States
_____________

statutes

as

v. United States
______________

U.S. 422, 438 (1978) (in criminal statutes,

"far more than the simple omission of the appropriate phrase

from

the

statutory

dispensing

with

definition

an

intent

is

necessary

requirement");

to

justify

Morissette
__________

v.

United States, 342 U.S. 246, 255-56, 263 (1952).

_____________
Thus, had the word "knowingly" not appeared at all
in

the

child

pornography

statute,

insisting

upon

"knowledge"

of the

element of

the

offense,

insisted nonetheless
of mind

supra pp.
_____

in respect to the nature of

explicit

criminal heart

5-6)

not

commerce"
would

have

a guilty state

the material.

For one

material shows a child engaging in

activity

jurisdictional, aspect

(while

"interstate

that prosecutors prove

thing, the fact that the

sexually

see
___

courts

is

not

of the crime.

of the matter.

secondary,

It is the

For another

or

moral and

thing, without

such a requirement, the statute would severely punish purely

innocent

conduct.

office employee who

It

would reach,

for

example, a

"knowingly distributes" mail

post

but knows

-88

nothing of

its contents, or

a film developer who

reason returns

an undeveloped roll

Congress could

not have intended these results.

infra;
_____

see United States v.

___ ______________

(1981)

(courts

must

Cir.

1990) (same).

Turkette, 452
________

construe

results); United States

_____________

of film to

statutes

for some

a customer.
Pp. 8-12,

U.S. 576,

to

avoid

580

absurd

v. Ferryman, 897 F.2d 584, 589 (1st

________

Finally,

as

X-Citement Video
________________

itself

demonstrates, to read this criminal statute as "requiring no

mens rea" (contrary
________

to Liparota,
________

makes it unconstitutional.
747, 765

471 U.S.

at 426)

likely

See New York v. Ferber, 458 U.S.

___ ________
______

(1982) (criminalization of child

pornography must

involve

"some

element

of

scienter

defendant"); see also Osborne

_________ _______
n.9,

115 (1990) (same;

on

v. Ohio,
____

the

part

of the

495 U.S.

103, 113

"recklessness" suffices).

Such an

interpretation therefore violates courts'

federal

statutes so

that

they

federal

Constitution whenever

are

duty to interpret

consistent

possible.

with

E.g.,
____

the

Edward J.
_________

DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades

_______________
_________________________________________
Council, 485 U.S. 568, 575 (1988).
_______
If we would interpret a silent statute as imposing
______
a guilty

state of

mind requirement,

how could

Congress's

explicit use of the word "knowingly" eliminate it?

far

more likely that Congress used

It seems

the word "knowingly" to

-99

make clear

that it

did intend to

insist that

a defendant

___
know the

child-pornographic nature

legislative

history

confirms

of the

this

material.

view.

For

The

example,

Senator Roth, the author of the amendment which extended the

original bill

to distribution

as well

as production,

was

asked whether the amendment meant that

the distributor or seller must have
[either] actual
knowledge that
the
materials do contain child pornographic
depictions, or [that] he should have had
such actual knowledge.
He responded:
That is
absolutely correct.
This
amendment, limited as it is by the
phrase "knowingly," insures that only
____
those sellers and distributors who are
consciously and deliberately engaged in
________________________________________
the marketing of child pornography and
____________________________________
thereby are actively contributing to the
maintenance of this form of child abuse
are subject to prosecution under this
amendment.
123 Cong. Rec. 33,050 (1977) (emphasis added).
to which Senator Roth referred

The language

found its way into the final

law (with minor stylistic changes).

Compare 123
_______

Cong. Rec.

33,061 (1977) (Senate bill with Roth amendment) with Pub. L.

____
No. 95-225,

2(a), 92 Stat. 7, 7-8 (1978) (final version).

Furthermore,

the

Department

of

Justice

Congress a letter in which it told Congress that the

-1010

wrote

use
of
the
word
"knowingly"
in
subsection 2252(a)(1) is appropriate to
make it clear that the bill does not
___________________
apply to . . . innocent transporters who
________
_________________________
have no knowledge of the nature or
________________________________________
character of the
material they are
_____________________________
transporting.
S. Rep. No.

438, 95th Cong., 2d Sess.

in 1978 U.S.C.C.A.N.
__
"Report"].

40, 64

29 (1978), reprinted
_________

(emphasis added)

[hereinafter

Thus, the Department and the amendment's author

agreed that the

point of the statute's explicit

use of the

word "knowingly" lies in the application of that word to the

nature of the material's contents,
________

not to the nature of its

distribution or receipt.
It

is true

that the Department

also said,

different context,
We assume that it was not

the intention

in a

__________________
of
the
drafters
to
require
the
Government to prove that the defendant
_________
_____________
knew the child was under age sixteen but
____________________________________
merely to prove that the child was, in
fact, less than age sixteen.
Id., 1978
___

U.S.C.C.A.N. at 64

this, however, the

statutory

"knowingly"

Department was referring to

provision --

distribution.

(emphasis added).

And

one that penalized

In saying
a different
_________

production, not
__________

Congress responded by dropping

the word

from the production section of the statute, but

not from the distribution section.

___
95th Cong., 2d

H.R. Conf. Rep. No. 811,

Sess. 5, reprinted in 1978

____________

U.S.C.C.A.N. 69,

-1111

69;

compare Pub. L.
_______

(1978) (knowledge

No. 95-225,

not required

2251(a), 92
in production

Stat. 7, 7
prosecution)

with id.
____ ___

2252(a), 92 Stat. at 7-8

(knowledge required in

distribution or receipt prosecution).

Finally,
Department's
requirement

letter
with

prosecutions.

we

concede

that

suggests that

respect

to

at

there

age,

one

point

the

be

no knowledge

even for

distribution

It said,

To
clarify
the
situation,
the
legislative history might reflect that
the defendant's knowledge of the age of
________________________
the child is not an element of the
________________________________
offense, but that the bill is
not
___
intended
to
apply
to
innocent
_______________________
transportation with no knowledge of the
____________________
nature or character of the material
_____________________
involved.
Report,

supra, at
_____

added).

We have

legislative
adopted

this

29, 1978
found

history,

U.S.C.C.A.N.

nothing

however,

recommendation.

legislative history reveals

to

in

at 64

the statute

suggest
To

the

that

(emphasis
or

the

Congress

contrary,

congressional awareness of

the
the

important constitutional differences between adult and child

pornography, the likely constitutional significance of
and the concomitant
of mind
Cong.

constitutional need for a

requirement with

respect to age.

age,

guilty state

See,
___

e.g., 123
____

Rec. 33,048 (1977) (statement of Sen. Goldwater); id.

___

-1212

at

33,051 (statement

background,

no

Hatch).

as well as

constitutional

to conduct.
obstacle

statute

in the

opinion

was circulating in draft

this

case before us.

panel, another panel

conclusion.

In

light of

this

we conclude that the statute's word "knowingly"

applies to age
find

of Sen.

to

That being so,

application

(We note

of this

of

we
the

that while this

form among the members of

court reached

the same

See United States v. Gifford, No. 93-1645, slip

___ _____________
_______

op. at 20-23 (1st Cir. Feb. __, 1994).)

II
Entrapment
__________
The

evidence

convincingly that Gendron

that he

knew

in

this

ordered and received a

contained child

Gendron's strongest

case demonstrated

pornography.

evidence-based claim does

rather

videotape

Consequently,
not deny his

having

engaged

Rather, he

him

entrapment

that

so.

"predisposed" to

1988) (setting

commit

Gendron

(1) the
(2) by a

of

statute.
government

notes

that the

government's
defendant who

the crime.

Rodriguez, 858 F.2d 809,

_________
forth elements

the

shows the

two parts:

of criminal behavior;

United States v.
_____________

violates

the evidence

into doing

defense has

"inducement"
not

conduct

argues that

"entrapped"

was

in

See, e.g.,
___ ____

812-15 (1st Cir.

entrapment and

relevant

-1313

evidentiary

burdens).

entrapment issue to
he

argues

that the

Although

the jury, which found

evidence

did not

verdict.

He says that

rebut his

claim of "inducement,"

show
commit

(beyond

submitted

the jury's

the government to

nor was it

doubt) his

the

against Gendron,

support

it did not allow

a reasonable

the crime.

the court

sufficient to

"predisposition" to

Consequently, he says,

particularly in

light of

a recent Supreme

similar arguments,

Court case that

Jacobson v.
________

accepted rather

United States,
_____________

112 S.

Ct.

1535 (1992), the law requires a judgment of acquittal.

It may help in evaluating Gendron's argument if we
set

forth

in

entrapment

simplified terms

defense

and

our

its

understanding

elements.

of the

(For

more

comprehensive accounts, see, e.g., Rodriguez, supra; S. Rep.

_________ _____
No.

307,

Scott,

97th Cong.,

Substantive

Seidman,

1st

Sess. 118-30

Criminal

Law

5.2

LaFave &

(1986);

Louis M.

The Supreme Court, Entrapment, and Our Criminal

__________________________________________________

Justice Dilemma, 1981 Sup. Ct. Rev. 111.)

_______________
has described
that

(1981);

Congress,

that defense

as resting

when enacting

The Supreme Court

upon an

assumption

criminal statutes,

does not

intend the statute to apply to violations arising out of (1)

the

government's "abuse" of
_____

"enforcement"

efforts

by

its crime "detection"

"instigati[ng]"
-1414

the

and law
criminal

behavior
are
U.S.

and "lur[ing]" to commit the crime (2) persons who

"otherwise innocent."
__________________
435, 448 (1932)

entrapment

doctrine

innocent"
________

Sorrells v. United States, 287

________
______________

(emphasis added).
forbids

Consequently, the

punishment of

an

"otherwise
_________

person whose "alleged offense" is "the product of

__________

the creative activity"

_____________________
(emphasis added).

of government officials.

Id. at 451
___

As the Supreme Court has recently stated,

When
the
Government's
quest
for
conviction leads to the apprehension of
an otherwise law-abiding citizen who, if
_____________________________
__
left to his own devices, likely would
_________________________
have never run afoul of the law, the
courts should intervene.
Jacobson, 112
________

S. Ct. at

1543 (emphasis added).

Since the

Court has repeatedly expressed concern about both government

____
"abuse"

of

its enforcement

"otherwise law-abiding

powers (or

citizen" (or

the like)

the like),

and the
___

it is

not

surprising that the defense has

two parts, one that focuses

upon

and

government

"inducement"

the

other

upon

the

defendant's "predisposition."
In

describing

distinguished between

"inducement,"

proper and

improper law

courts

have

enforcement

activities.

It is

the government to

proper (i.e., not

use a "sting," at least

to providing a defendant
crime.

E.g.,
____

an "inducement") for
where it amounts

with an "opportunity" to

Sorrells, 287 U.S. at 441;

________

commit a

Sherman v. United
_______
______

-1515

States,
______

356 U.S. 369,

372 (1958); United States v. Coady,

______________
_____

809 F.2d 119, 122 (1st Cir. 1987); United States v. Espinal,
_____________
_______
757 F.2d 423, 425 (1st Cir. 1985).
enforcement

weapon,

it

impossible,

to stop

certain

particularly

activity

Without this kind of law

would often

prove

seriously criminal

involving drugs,

or

other crimes in which no direct participant

detected.
n.7

(1976)

See
___

Hampton v. United States, 425

_______
_____________

(Powell, J.,

difficult,

concurring

or

activity,

corruption, or
wants the crime
U.S. 484, 495

in judgment);

United
______

States v. Bradley, 820 F.2d 3, 6 (1st Cir. 1987).

______
_______
An
providing

improper

an

"inducement," however,

ordinary

Jacobson, 112 S.
________

"opportunity to

Ct. at 1541.

An

goes

beyond

crime."

commit

"inducement" consists of

an "opportunity" plus something else -- typically, excessive

____
pressure

by

the

government's
criminal

government

taking

type of

upon

advantage

motive.

of

the

defendant

an

or

alternative,

"sting"

that

combines

the
nonan

ordinary opportunity with these extra elements runs the risk

of catching
might

in the law

well have

absence of the

enforcement net not only

committed

the

crime

elsewhere

sting), but also those who

likely would never have done so.

-1616

those who
(in

the

(in its absence)

Insofar as the net catches

the

latter, it stretches

beyond its basic

law enforcement

purpose.
Some examples of
Courts have found
to

improper "inducement" may

a basis for sending

help.

the entrapment issue

the jury (or finding entrapment

established as a matter

of law) where government officials:

(1) used "intimidation"

and "threats" against a defendant's family, United States v.

_____________
Becerra, 992 F.2d 960, 963 (9th Cir. 1993); (2) called every
_______
day,

"began

threatening"

the

defendant,

and

were

belligerent,

United States v. Groll, 992 F.2d 755, 759 (7th

_____________
_____

Cir.

(3)

1993);

"dogged
Rodriguez,
_________
sympathy
withdrawal

engaged in

insistence

until

858 F.2d

at 815;

for informant's

(4)

symptoms, Sherman, 356

_______

get liquor (during

solicitation

[defendant]

common

upon sentiment of "one former

to

"forceful"

and

capitulated,"

played upon

defendant's

narcotics experience
U.S. at 373;

war buddy . . .

and

(5) played
for another"

prohibition), Sorrells, 287

________

U.S. at

440-41; (6) used "repeated suggestions" which succeeded only

when defendant
family's food

had lost

his job and

needed money

and rent, United States v. Kessee,

______________
______

for his
992 F.2d

1001, 1003 (9th Cir. 1993); (7) told defendant that she (the
agent) was suicidal
States v.
______

and in desperate need

Sullivan, 919 F.2d

________

of money, United
______

1403, 1419 & n.21

(10th Cir.

-1717

1990).

The

background

illustrate possible

and

context

government

of

each

"overreaching"

example

--

of

its

having acted unfairly by employing

methods of persuasion or inducement that
create a substantial risk that such an
offense will be committed by persons
other than those who are ready to commit
it.
Model Penal Code
The

2.13(1)(b).

second

part

of

the

entrapment

defense,

"predisposition," is somewhat more

difficult to understand.

Some

the

Supreme Court

authors)

have

relevant.
focus

Justices (and

argued

Rather,

only

upon

ordinary

that "predisposition"

they thought
government

enforcement officers

Model Penal

from

that

law-abiding citizens

astray,

not

the defense

impropriety,

using methods

is

Code's
even
should

preventing
that

might

whether or

law
lead

not the

particular

defendant was "predisposed" to commit the crime.

See, e.g.,
___ ____

Model Penal Code

453

(Roberts,

concurring)
defense);

J.,

joined

(arguing

for

2.13; Sorrells, 287

________
by

Brandeis

this

&

"objective"

U.S. at

Stone,
view

JJ.,

of

the

Sherman, 356 U.S. at 378 (Frankfurter, J., joined

_______

by Douglas, Harlan & Brennan, JJ., concurring) (same).

Supreme Court itself,

however, has rejected this

The

view.

It

saw in the entrapment defense not so much a sanction used to

-1818

control
ordinary

police

law-abiding

overreaching.
defendant

conduct,

citizen

against

Consequently, it

to take

himself was such

at 448;

but rather

Sherman,
_______

advantage
a citizen.
356

of

saw

no need

that

See, e.g.,
___ ____

U.S. at

protection

376-77;

defense

of the

government
to permit

unless

he

Sorrells, 287 U.S.

________
United States
______________

v.

Russell, 411 U.S. 423, 433-35 (1973).

_______
must find out
the

The upshot is that we

just who that "innocent

"otherwise
_________

law-abiding

person" is.

citizen"

who

Who is

would

not

the

word

"otherwise" have committed the crime?

The

question's

"otherwise."

We cannot

government's present
have committed

have

acted

defendant

in

simply ask whether,

activity, the

the crime when

____

government's

defendant,

lies

That word requires us to abstract from present

circumstances.

the

difficulty

having

no matter
then.
____

defendant would

he did.

presented that
____

how "predisposed,"
Nor

can we

without the

simply

After

likely

all, without

opportunity,
would
ask

the

likely not
whether

the

would have acted similarly at some other time had

___

he faced similar circumstances, since his present

_______________________________

behavior

virtually compels

question

an

affirmative answer

phrased in this way.

-1919

to

the

The right way to ask the question, it seems to us,

is

to

abstract from

--

to

assume

away --

the

present

circumstances

insofar
as
they
reveal
government
___________________________________________

overreaching.
____________

That is

defendant

likely

would

opportunity to commit
at 1540

n.2.

opportunity

By
that

to

say,

have

we

reacted

the crime.

using the
lacked

to

word "ordinary,"

those

special

how

an

See Jacobson,
___ ________

government's conduct that made of it

"overreaching."

should ask

the

ordinary
________
112 S. Ct.

we mean

features

an

of

the

an "inducement," or an

Was the defendant "predisposed" to respond

affirmatively to a proper, not to an improper, lure?

______
________
This way of
from the
clash

way in

which the Supreme

between

entrapment --

looking at the

"objective"
at least if

and

matter seems to
Court has

resolved the

"subjective"

one looks at that

flow

views

of

resolution as

simply denying the defense to one whom it is not designed to

help, namely the kind
might
"sting"

well be

of defendant who (without a

out committing

seeks to

stop.

crimes

See Russell,
___ _______

of the
411

"sting")

sort that
U.S. at

434.

Further,

our

effort

to

define

"predisposition"

reference to the

nature of the government

the

despite

fact

that,

primarily upon

partial

the defendant's

conduct reflects

descriptions

state

through

that focus

of mind,

government
__________

-2020

misconduct

lies at

Were that

not so --

state of

mind --

the heart

of

the entrapment

were the issue simply

the law would

permit an

defense.

the defendant's
innocent minded

defendant to raise an entrapment claim when a private person

_______
"induced" him

(through similar

commit a crime.
in

But the

those circumstances,

person's conduct.
States
______

v.

"overreaching" conduct)

law does not authorize the defense

however

E.g., Russell,
____ _______

Jones, 950
_____

to

F.2d

"outrageous" the
411 U.S. at

1309 (7th

Cir.

private

433; United
______
1991); United
______

States v.
______
States
______

Bradley, 820
_______

v. Emmert,
______

States v.
______

829

F.2d 3, 6
F.2d 805

(1st Cir.
(9th

McLernon, 746 F.2d 1098 (6th

________

1987); United
______

Cir. 1987);

United
______

Cir. 1984); Whiting

_______

v. United States, 321 F.2d 72, 76 (1st Cir. 1963).

_____________
Finally,

this

way

of

phrasing

the

question

prevents one from concluding automatically, simply from

fact

that the defendant

committed the

"predisposed" to commit it.

to the

question so

crime, that

the

he was

At the same time, if the answer

phrased is

affirmative, the

defendant

would seem to be the sort of person (and his conduct in this

instance is the

sort of conduct) that

intends to punish.

He is, in other words, someone who would

likely commit the crime under

reasons

normally

the criminal statute

the circumstances and for the

associated
-2121

with

that

crime,

and

who

therefore poses
statute

the

sort of

threat

to society

that

the

seeks to control, and which the government, through

the "sting," seeks to stop.

We
recent

turn now

to Jacobson
________

v.

United States,
_____________

the

child pornography case where the Supreme Court found

entrapment as
heavily

matter

relies.

of law,

upon

which

Gendron

Government agents found Jacobson's name on

a bookstore mailing list

mailed photos

and

of naked

that indicated that the store

children to

Jacobson.

had

Government

agents then sent Jacobson letters from fictitious people and

organizations, soliciting orders for

child pornography.

three

more

respects,

however,

ordinary opportunity to

they did

than

buy child pornography:

In

provide an
First, the

solicitations reflected a psychologically "graduated" set of

responses to Jacobson's own noncriminal responses, beginning
with

innocent lures and

government started
which

elicited a

followed

with

with a "sexual

letters

sent

finally

containing

more

after

correspondence), it

in

"pre-teen sex";
general,

personal

Jacobson

sent him child

-2222

The

had

it

nonexplicit

possibility of child pornography;

Jacobson
(but

offers.

attitude questionnaire,"

general interest

references implying a
then

progressing to frank

it

correspondence;

and,

discontinued

the

pornography catalogues.

112

S. Ct. at 1538-39.

letters

Second, the government's soliciting

sometimes depicted

lobbying organizations and

what

we

desire";

censorship

"free speech"

fighters for the "right

they asked

Jacobson

to

to read

"fight against

and the infringement of individual rights."

at 1538, 1542.

Id.
___

Third, the government's effort to provide an

"opportunity"
two and

their senders as

to buy child

a half

years.

pornography stretched

Taken

out over

together, one might

find in

these three sets of circumstances -- the graduated response,

the long time
motive --

period, the appeal to a

a substantial risk

of inducing an

abiding person to commit the crime.

conceded
entrapment

in

Jacobson
________

that

purposes, to an

proper (free speech)

its

ordinary law-

Indeed, the
methods

government

amounted,

improper "inducement."

for
Id. at
___

1540 n.2.
Jacobson's
________
"predisposition"

importance,

however,

concerns

part of the entrapment defense.

the

The Court

held

that

acquittal

the

evidence,

consisted of

two facts:

involved

mailing

a matter

of

law,

required

because a reasonable jury would have had to doubt

Jacobson's predisposition.

became

as

The evidence
(1) that

Jacobson

was

on

of predisposition

before the

government

private

bookstore's

list for dubious photos; and

(2) that he responded

-2323

affirmatively to the government's solicitations.

fact,

The

first

the Court wrote, showed little about a predisposition

to act unlawfully because ordering the photos was lawful

__
the time.
could

not

112 S. Ct. at 1542.

show

how

The second,

Jacobson

solicitation lacked the

would

three elements

have

at

placing orders,
acted had

we just

the

mentioned,

namely, the improper appeals to anti-censorship motives, the

graduated response,

and the

lengthy time

frame.

Id.
___

at

1542-43.

The

government

"predisposition" (beyond

therefore

a reasonable

failed
doubt).

to

show

That

means

(as we understand it) that the government's evidence did not

show how Jacobson would have acted had he been faced with an
ordinary "opportunity"

to commit

the crime

rather than

special "inducement."
Gendron's
respects.

case is

similar

to Jacobson's

in two

The government initially found Gendron's name on

a "naked children" mailing list, and the government sent him

child pornography solicitations over a fairly long period of
time (one
Jacobson).
________

of

the "sham"

companies

was also

involved

in

There are, however, two critical differences.

First,

less extensive
"graduated" its

any governmental
than in

Jacobson.
________

responses

(from
-2424

"overreaching" here
The government
innocent

lure

was

neither
to

frank

offer) nor, with one exception,

other

than

exception

the

desire

consists

of

did it appeal to any motive

to see

child

pornography.

one solicitation

(also

The

present in

Jacobson) in which the government's sham company referred to

________
"hysterical nonsense"
government

was

about pornography, and asked

"spending millions

international censorship
country

"easily."

disguise

while

of dollars

tons of

why the

to exercise

drugs"

enter

the

Nonetheless, here the government did not

itself as a "sexual rights" lobbying organization,

seeking to lobby

Congress to remove restraints

its efforts through

the government ask
of principle.

and funding

pornographic catalogue sales.

Gendron to commit the crime

See 112 S. Ct. at

___

Nor did

as a matter

1538-39, 1542.

Since the

"overreaching" here was far less extensive than in Jacobson,

________
there

is

less

reason

"overreaching" (i.e.,
an

that

government

an improper "inducement")

could lead

"otherwise innocent"

to

believe

person to

commit the crime.

See
___

Gifford, No. 93-1645, slip op. at 15-16.

_______
Second, the
of

Gendron's state

conclusion

record contains
of

mind;

that

substantial evidence
evidence

permits

the

that (inducement or not) he was "predisposed" to

commit the crime.

a verbally explicit

In late 1986, when Gendron first received

"child pornography" catalogue
-25-

from the

25

government's sham company, he placed an order accompanied by

a letter in which he said,
I have finally
found the kind
of
educational material I've been dreaming
of possessing for quite some time. I .
. . [am so] excited that I have decided
to order two of your titles . . . .
The government did not fill the order, but three years later
Gendron responded to a letter

from another sham, a

foreign

of "hard to

company, which spoke

pretend

obtain erotica."

He wrote,
I am very interested in the other part
of your services that are very difficult
to obtain in my country. . . . I am
becoming
very
bored
with
adult
pornography . . . . I like very young
girls only and color videos.
Can you
help me.
The sham firm
catalogue,

and

responded with an explicit

Gendron

ordered

several

child pornography
of

(Again the government did not fill the order.)

later the

government sent

Gendron a

the

titles.

A few months

third explicit

child

pornography catalogue.
check.

Gendron sent

back an

order and

Two months later, he wrote again, asking if the firm

had "forgotten" his order, making clear that he still wanted

"this type of educational materials," stating, "don't worry,
I am

not connected

in any way

adding "Please Hurry."

with law

enforcement," and

(This time the government filled the

-2626

order with the video that

led to this prosecution.)

Jacobson's correspondence, Gendron's

Unlike

correspondence reveals

only a desire to view child pornography; it contains nothing

like Jacobson's urging

of a "counter attack"

against those

"who are determined to curtail our freedoms."

112 S. Ct. at

1538.

(See Appendix for a detailed chronology of the events

in Gendron's case.)
This evidence, taken together, reveals a defendant
who met an initial opportunity to buy child pornography with

enthusiasm,

who

initiative
showed

responded

each

further

government

with a purchase order, and who, unlike Jacobson,

no

particular

campaign.

interest

in

an

anti-censorship

This evidence, as we have said, permits a jury to

find (beyond
responded

a reasonable
affirmatively

opportunities, and, hence,

crime.

to

We therefore

doubt) that
to

the

Gendron would
most

ordinary

was "predisposed" to

find the

have
of

commit the

jury's entrapment

decision

lawful.
III
Search and Seizure
__________________
Government
seized

the

primary

agents searched
piece

of

Gendron's house,

evidence

(the

and

videotape),

-2727

pursuant to a warrant.

That warrant authorized (1) a search

of
the residence of Daniel A. Gendron, 105
Winthrop Street, Rehoboth, Massachusetts
02769;
for (2)

a "VHS videocassette

labeled PTL (1)"

and related

items; (3) "after delivery by mail to and receipt by Daniel

________________________________________________
Gendron" of a specifically described parcel
_______
tape) until

the expiration of

the warrant (ten

its issuance).

Gendron concedes that

Constitution's

two basic

supported
criminal

delivery of the

would

in

his

issuance was

searched, and the .

U.S. Const.

amend. IV.

after

the

describ[es] the

. . things to

He claims

evidence of

house

tape; and it "particularly

place to be

invalid

its

to believe that

exist

days after

the warrant meets the

requirements:

by "probable cause"
activity

(containing the

that it

be seized."

is nonetheless

because it is an "anticipatory warrant" which fails

adequately to specify the time at which it will take effect.

____
Gendron

cites

different

in

panel

support
of

this

recent
court,

case

decided

by

United
States
_______________

a
v.

Ricciardelli, 998 F.2d 8 (1st Cir. 1993).

____________
In

general, the

"anticipatory"

--

i.e.,

issuance,

at

but

simple fact
that it

specified
-2828

takes
future

that

a warrant

effect,
time

is

not upon

-- does

not

invalidate a warrant
disfavored.

or make it somehow suspect

Warrants

often do specify that

effect upon issuance.

requirement.

and

"probable cause."
unreasonable
today, when

they will take

But the Constitution imposes no

Rather,

"unreasonable,"

or legally

it says
that

that a

search must

warrants must

U.S. Const.

be

amend. IV.

about authorizing a

seem

search for

unreasonable to

by

There is nothing

reliable information indicates

automatically

not be

supported

tomorrow, not
that, say,

marijuana will reach the house, not now, but then.

it

such

tie

the

Nor does

the warrant's

search authority to the future event that brings with it the

probable cause (e.g., the time of "delivery of a large brown
package

addressed

to

with

Ricciardelli, 998 F.2d at 10-11.

____________
"triggering event"
place

only
____

when

can help
justified

return

address

Y").

In principle, the use of a

assure that
by

the search

"probable

cause";

takes
and

anticipatory warrants may thereby offer greater, not lesser,

protection
privacy.

against

unreasonable

invasion

of a

citizen's

As one commentator has put it,

as a general proposition the facts put
forward to
justify issuance
of an
anticipatory warrant are more likely to
establish that probable cause will exist
at the time of the search than the
typical warrant based solely upon the
known prior location of the items to be
searched at the place to be searched.
-2929

Wayne R. LaFave,

Search and Seizure

3.7(c), at 97 (2d

ed.
1987).

Were

"anticipatory

enforcement agents would

event

occurred; then,

application,

warrants"

have to wait until

if

time did

not

law

the triggering

permit a

warrant

they would have to forego a legitimate search,

or, more

likely, simply

"exigent

circumstances") without any

Vale
____

Louisiana, 399
_________

v.

unlawful,

conduct the

U.S. 30,

search (justified
warrant at all.

34-35 (1970);

by
See
___

2 LaFave,

supra,
_____

6.5.

We are not surprised

"anticipatory warrants,"
consistent with
F.2d at
(2d Cir.

that courts have found

considered as

the Constitution.

10-11; United States

_____________

a class,

E.g.,
____

perfectly

Ricciardelli, 998
____________

v. Garcia, 882 F.2d

______

1989); United States

_____________

699, 703

v. Goodwin, 854 F.2d

_______

33, 36

(4th Cir. 1988); United States v. Hale, 784 F.2d 1465, 1468_____________
____
69

(9th Cir.

1986); People
______

v. Glen,
____

282 N.E.2d

614, 617

(N.Y. 1972).
Gendron
reference
Gendron"

argues,

to "delivery
does

not

effect.

clearly

We agree

say when it

by mail

describe

"triggering event," i.e.,

take

however,
to

that

the

warrant's

and receipt

by Daniel

with sufficient

clarity

the particular time when

with Gendron

takes effect.
-3030

that a
We

its

it will

warrant must

also agree

that a

warrant that says

it takes effect upon the

occurrence of a

future event runs a greater risk of ambiguity than a warrant

that refers only

to a specific day, month, and

ordinary search warrants).

that the conditions upon
effective

"explicit,

Ricciardelli,
____________

998 F.2d at

That

That is why courts have required

which anticipatory warrants become

be

703-04).

year (as do

clear,

and

narrowly

12 (quoting Garcia,
______

drawn."

882 F.2d at

said, however, we do not find any fatal flaw

in the warrant's description.

First,

the

specificity of time

law's

requirement

must be one of

with

respect

to

reasonable specificity.
__________

Glen, 282 N.E.2d at 619 (warrant should require search to be

____
"reasonably contemporaneous" with
LaFave, supra,
_____

3.7(c), at 99 & n.103 (citing

can understand how

a specificity requirement in

time, like

those in

"things to

be seized," U.S.

respect to "place

the

discretion of law

and

where and what

general
Glen,
____

writs of
282

"probable

to be

Glen).
____

One

respect to
searched" or

Const. amend. IV,

might limit

enforcement officers to

decide when

to search, thereby
assistance

N.E.2d at
cause."

arrival of contraband); 2

617,

avoiding the "hated

of pre-Revolutionary
and assuring

2 LaFave, supra,
_____

the

times,"

existence of

3.7(c), at 99; id.

___

4.5,

at 207;

id.
___

4.6(a), at

236.

But we

know

of no

-3131

justification
specificity

for
of

time

(constitutionally

stricter
________
than

standard

in respect

referenced)

to

in

respect

to

the

other

two

search

parameters.

Ricciardelli, while stating that the contraband must be on a

____________
"sure and irreversible course" to the place to

be searched,

998 F.2d at 13, did not purport to set forth any special new
_______
rule requiring

more

specificity where

say, place, is at issue.

Second,
descriptions

in

than,

To the contrary, Ricciardelli says

____________

that a warrant's restrictions

should be "similar."

time, rather

in respect to time

and place

Id. at 12.
___

the law
warrants

tells
(and

us that

we

in

their

are to

read

supporting

documents), not "hypertechnical[ly]," but in a "commonsense"

fashion.

United States
______________

(1965); see also,

________
1112,

e.g., United States

____ _____________

1116-17 (2d Cir.

926 F.2d 847, 855 (9th

753

F.2d

1301,

Charest, 602
_______

380 U.S.

102, 109

v. Bianco, 998
______

F.2d

1993); In re Grand Jury Subpoenas,

___________________________
Cir. 1991); United States v. Antone,
_____________
______

1307 (5th

F.2d 1015,

Cir.

1985);

1017 (1st Cir.

commonsense fashion, the

clear.

v. Ventresca,
_________

United States
_____________
1979).

Read

v.
in a

warrant's words seem specific

and

Gendron takes the word "receipt," however, from

the

phrase "delivery by mail to

and argues

that it is

and receipt by Daniel Gendron,"

fatally ambiguous

because it

might

-3232

mean

"receipt" anywhere,

say,

downtown

or

at

the

Post

Office.

But, as we

context helps

have pointed out,

to provide

see supra pp.

___ _____

word's meaning.

The

5-6,

context

includes, at least, the rest of the warrant, which describes

Gendron's
is

house, makes clear that the

a video

mentions

that will

arrive at

"delivery by mail"

suggests that

the words

refer to receipt at that

or

at

the Post

Office,

object of the search

that house

to that

by mail,

house.

"receipt by

and

Common sense

Daniel Gendron"

also

house, and not to receipt downtown

or

(to

use our

own

farfetched

example) in Okinawa.
We recognize that it is logically possible to read
the word

"receipt" as if

other than at

it referred to

Gendron's house.

receipt somewhere

But that

not make the word any less specific.

logical fact does

The

logical fact that

the world undoubtedly contains people named "Daniel Gendron"

other

than the

defendant

here

does

not

mean

that

the

warrant's triggering event, "delivery by mail to and receipt

by Daniel Gendron," is ambiguous because it does not specify
that

the "Daniel

Gendron" to

whom

it refers

residing at the address to be searched.

is the

Despite the logical

possibility that the post office might accidentally

the

tape

to

some other

Daniel
-3333

one

Gendron,

deliver

thus apparently

fulfilling

the literal terms of the warrant, the warrant is

adequately specific
Specificity does
unintended

as to the

not lie

person to receive

in

writing words

logical possibilities.

combination of

that deny

Rather,

it

language and context, which

all

unintended

all

lies in

together permit

the communication of clear, simple direction.

negate

the tape.

Any effort to

logical possibilities

through

the

written word alone would produce linguistic complication and

confusion to the point
fail to
That

give the

is why

we

clear direction that

must avoid

"hypertechnically."
Were it
discussion

virtually

reading

practice, would

is its

very point.

a warrant's

language

See Ventresca, 380 U.S. at 109.

___ _________
not for

here.

Ricciardelli
____________

where a warrant, in

found
identical

We

Ricciardelli, we
____________
must

concede,

unlawfully

ambiguous

language,

namely,

would end
however,
a

warrant
language

triggered the warrant upon

delivery by mail to and receipt by
Steven Ricciardelli of the . . . package
containing the videotape.

the
that
with
that

998 F.2d at

9.

We find a

significant difference, however,

in the factual context in which the warrant was issued.

The

Ricciardelli panel referred to what it considered a critical

____________
fact:
-3434

the (apparently significant) chance that

the package would not be delivered to
Ricciardelli's
home
at all
-a
possibility that [the postal inspectors]
undeniably had envisioned.
Id. at 17.
___
by mail"

The opinion also makes clear

was by special

delivery with a

and

that the postal

the

event that Ricciardelli

the

tried

was not home,

plans" in

received the package somewhere

Id. at 9, 17 &
___

Ricciardelli

"return receipt,"

inspectors had "contingency

other than his home.

"letter carrier

that the "delivery

to

n.9.

deliver

(As it happened,
the

so "the postman

package"

but

left a notice"

that he

could "collect

Ricciardelli, in fact,

understand

light
why

of

the

the post

office," and

did pick up the package

office, not at his home.

In

the item at

at the post

Id. at 9-10.)
___
these

panel

background

might

have

facts,
thought

one
the

can
word

"receipt," in context, was ambiguous as to where the receipt

might

take place.

language

in

After all,

this case

even

describing the

the highly
item to

specific
be seized,

namely "VHS videocassette labeled PTL (1)," could be thought

_____
ambiguous
serious

if the

background of

this case

had revealed

possibility of two such items (imagine that Gendron

___

had worked for a

home a series

firm called "PTL Realty Co." and had taken

of demonstration videos).

This

is simply to

sometimes turn

hypothetical

-3535

say that

background facts can

possibilities, such as receipt in Okinawa or delivery to the

wrong Daniel
context,

Gendron, into practical possibilities that, in

might

"commonsense"

mean
fashion

that

one

reading

would nonetheless

warrant

find

in

significant

ambiguity.
Here,
significant

however,

ambiguity.

inspector's affidavit
placed

no
On

the

specified that

for routine delivery"

Postal Service,

background

fact

contrary,
the

the

postal

parcel "will

to Gendron "through

Rehoboth, MA";

created

that after

the U.S.

the parcel

delivered by mail and taken into the residence," there

____________________________
be "probable

cause to

believe" that

evidence of

be

"is
will

criminal

conduct will be "located" in the house; and that

surveillance will commence from the time
the parcel is placed for delivery [at
the Rehoboth Post Office] and continue
until the parcel has been delivered to
105 Winthrop St., Rehoboth, MA,
with probable cause to search arising only "after the parcel
____
has

entered the premises"

____________________

(emphasis added).

Moreover, at

trial, the postal inspector testified that

if Mr. Gendron was in Florida, we aren't
entitled to search his house or his
parents' house.
Once it was delivered
into the house, then the search warrant
______________
became effective.
-3636

He added that the house was under surveillance because

it was important to us that if that
piece didn't get delivered, you don't
execute the search warrant.
Tr.

at

115-16

Ricciardelli,
____________

(emphasis
nothing

added).

in

the

Consequently,

record

here

unlike

suggests

background in which the warrant's words, adequately specific

in the context of the warrant, could, as a practical matter,
convey a different meaning.
For these reasons, we distinguish Ricciardelli and
____________
find

that it does

not control the

outcome here.

To make

certain that our reading of the case is correct, however, we

have circulated a draft of this opinion to the entire court.
The

concurring

(Torruella,

judge

Ricciardelli,
____________

J., concurring) believes

would require

a holding

majority

the

of

in

Ricciardelli which

court

998

that his

in Gendron's favor
agrees

with

distinguishes that

F.2d

our

at

17

views there

here.

But, a

reading

case from this

of
one.

____________
See, e.g., United States v.
___ ____ ______________
(1st Cir.

1993).

We

Rivera, 994
______

therefore

F.2d 942,

do not

accept

950-51

Gendron's

Fourth Amendment claim.

IV
Other Arguments
_______________

-3737

Gendron

makes three

further

arguments, none

of

which requires extended discussion.

1.
trial

Jury Instruction.
________________

court should

that it
was under

have specifically

must find he knew

the age

Gendron

of 18.

argues that

instructed the

the person depicted

Gendron

did not

the
jury

on the tape
ask for

this

charge, nor did he object to the instruction the judge gave,

which required the jury to

find that he "knew the character

__________________

and nature of the material."

___________________________
judge's "error"

Nonetheless, he says that the

was "plain."

Fed. R. Crim. P.

52(b); see
___

generally Arrieta-Agressot v. United States, 3 F.3d 525, 528

_________ ________________
_____________
(1st Cir. 1993).

In context, however, we believe the charge

the judge gave made

Estelle
_______

v. McGuire,
_______

evaluating a jury
is

112 S.Ct.

instruction

Constitution,"
a

whole

that the

in

way'

makes.

& n.4

See
___

(1991) (in

"'whether there

jury has
that

applied the

violates

the

in light of "the context of the instructions

and

the

California, 494 U.S.

__________
aware that

475, 482

charge, court should ask

a reasonable likelihood

challenged

as

the point that Gendron now

trial

record")

370, 380 (1990)).

(quoting

Boyde
_____

v.

The

jury was fully

the issue was child pornography.

_____

The remainder

of the charge referred frequently to children.

film depicted

nine year

old
-3838

child.)

(Indeed, the
Thus,

in

all

likelihood, it
to encompass
Gendron asked

understood the words

age as

"character and nature"

well as explicit

for no

more and we

likelihood of prejudice, there is

sexual acts.

can find

Since

no significant

no plain error.

Arrieta________

Agressot, 3 F.3d at 528.

________
2.
statements in

Closing Statement.
__________________
the

Gendron

prosecutor's closing

points to

argument that,

two
he

says, are factually erroneous and significantly prejudicial.

In

one instance,

Gendron

the prosecutor

had ordered from

described

the private mail

the item

that

order catalogue

(sometime before 1985) as follows:

I think the title of it was Nancy.
Nancy is described as 13, and
her
friends from No. 6, and
No. 6 is
prepubescence. Two pretty prepubescents
are taught how to become geishas.
This
10 year old, Nancy, and her friends, a
10 year old having sex with a 12 year
old a delicate blond at 12, having sex
with her playmate, 7, hide and seek,
combat, rock.
What is his interest in
this, ladies and gentlemen?
Children.
Female children.
In fact,
the record contains
the
descriptions, which read as follows:

relevant

E-2 NANCY: 13, and her friends from #6

_________
THROB.
An impish 10
year-old, a

catalogue

delicate blonde of 12, and a fetching 10

with her playmate of 7 hide-and-seek,
tumble, and romp.
J-6 KIMONO I: Two pretty pubescents are
____________
taught how to become geishas. From full
-3939

costume and make-up

censoring.
Gendron's

argument centers

to

nudity.

on the

absence

Some
of the

phrase

"having sex" in the actual descriptions.

In the
the

other instance,

pornographic tape that

the prosecutor

the government sent

described
Gendron as

containing
explicit depictions of a 9 to 11 year
old girl being raped, being sexually
abused, by teenage boys and an adult
male.
In

fact, the tape

does not contain

depictions of forcible

rape (although, as the government points out, its depictions

of a child engaging in sex amount to "statutory rape").

We
statements
them.
to a

agree

with

were wrong

and

We cannot agree,
new trial.

Gendron
that she

the

prosecutor's

should not

have made

however, that they entitle Gendron

That is because

the statements at

that

the time.

Gendron did not object to

Had he done so, we are certain

that the district court would have ordered a correction, and

a correction would
facts.

In the

normally

not

have cured any harm by

absence of an
order

"substantial chance
have acquitted,"

or,

new

objection, however,
trial

that absent
for

pointing out the

unless

the error

some

we will

there

is

the jury

other reason,

we

would
fear

-4040

"miscarriage
1,
such

of justice."

United States v. Young, 470 U.S.

_____________
_____

15 (1985); Arrieta-Agressot, 3
________________
miscarriage,

acquittal, here.

nor

any

F.3d at 528.

significant

We see no

likelihood

of

The

evidence in

overwhelming.

The

this

jury saw

case

was strong,

portions of

the

perhaps

tape, which

portrays a nine year old girl engaging

in sexually explicit

activities with teenage and adult men.

Gendron says nothing

to suggest that the tape leaves any doubt about the unlawful
nature of its

contents.

do not think the

Thus, in this

particular case, we

single use of the word "rape," forceful as

it is, could have had any significant prejudicial impact

the jury beyond the impact of the tape itself.

on

The question

of the videotape descriptions, because of their relevance to

the

"predisposition"

defense, is

a little

supra pp.
_____

24-26, the

strong.

We

original

not

mail order

effect on the
because

do

element
closer.

of
But,

evidence of

as we

have described,

misdescription
have

had any

jury's "no entrapment" finding,

the correct description

and available to the jury.

government's case ("an

entrapment

predisposition was

believe the
would likely

Gendron's

of

the

practical

particularly

was admitted into evidence

In light of the strength

important factor in
-4141

very

of the

considering the

likely

effect of

borderline

rhetoric," United States

______________

v.

Mejia-Lozano, 829 F.2d 268, 274 (1st Cir. 1987)), whether we

____________
consider the two misstatements

separately or together,

the

"error" they reflect is not "plain."

3.

Other Erotica.
_____________

Gendron argues that

erred in allowing, as evidence

of "predisposition," various

"child erotic" (but not illegal)

He does

not seriously argue,

not relevant.
________

See
___

the court

items seized at his

however, that the

Jacobson, 112 S.
________

Ct. at

home.

items were

1542 (stating

that similar material "by itself" was not sufficient to show

predisposition).

Rather,

outweighed by its
Evid.

403.

he

says

F.2d

The balancing

reasonably

634,

at issue,

nature

of

637

(1st

the

United States
_____________
The

light of

was

Fed. R.

however, is

Cir. 1993).

have concluded, in

basic evidence

usefulness

tendency to prejudice the jury.

district court, not this court.

985

its

for the

v. Williams,
________
court

the nature

might
of the

in the case (the videotape itself), that the

additional child-erotic

significant prejudicial

difference.

discretion in this determination.

material

We find

made

no

no abuse

of

Gendron's additional arguments are without merit.

For

the

above

reasons,

district court is
-4242

Affirmed.
________

the

judgment

of

the

-4343

POLLAK, District Judge (concurring).

______________
the

judgment of

wrought and

the

court and

in

illuminating opinion.

comprehensively

and

in

painstaking

I concur

the court's
The opinion
detail,

in

carefully
addresses,

all

of

the

substantial questions

presented.

would add

only a

few

words.
First.
_____
constitutional

As

the

difficulties

court's
of

opinion

serious

makes

dimension

clear,
would

attend the child-pornography statute if, in prosecutions for

knowing

receipt of a "visual depiction" of "a minor engaged

in sexually explicit

conduct," 18 U.S.C.

phrase "knowingly receives" were

2252(a)(2), the

not construed as requiring

the government to establish, beyond a reasonable doubt, that

the

"visual depiction" was one which

the defendant knew to

involve, not just pornography, but child pornography.

_____
potential

constitutional difficulties

are obviated

These
by the

court's persuasive demonstration of "congressional awareness

of the

important constitutional

and child pornography,"

concludes,

the proper

differences between

with the result that, as

reading of

what

the court

Congress wrote

"that the statute's word 'knowingly' applies to age as

as conduct."

-4444

adult

is
well

In

the case

that the pertinent

court -- namely

at

bar, appellant

Gendron contends

aspect of the charge given

that the government

by the trial

was required to

prove

that Gendron "knew the character and nature of the material"

-- was deficient in that

it did not say expressly

government had to have proved

the actors
the

notes,

instruction.
unlikely

that Gendron knew that one of

depicted in the videotape was

court

Gendron

Moreover,

did

as the

not

court shows,

But, as
such

it is

an

highly

that the jury could have failed to understand that

of the charge was that

to

through the

acquire,

ultimately

and
did

pornography.
that the trial

acquire,

That

court did not

be supposed to have

Gendron was eager

government's
videotape

is to say, in

charge that appellant

good offices
depicting

the case at bar

give the more

did not request

child
_____

the fact

particularized

cannot realistically

affected the jury's deliberations in

detrimental to appellant.

this statute, defendants will

courts

a minor.
request

the central focus

fashion

that the

In future

trials under

presumably request, and trial

will surely give, a more particularized statement of

what "knowingly" comprehends.

Second.
______

The

fact that

the

methods pursued

by

government agents to offer Gendron a tempting opportunity to

-4545

commit a crime were not

by

this court

unlawful

only successful but have been found

(correctly, in

-- i.e.,

forbidden realm of

not to

my

view) not

have crossed

to have

the line

entrapment -- does not,

been

into the

in my judgment,

signify that those methods of enforcing this sort of statute

are something to be proud of.

-4646

APPENDIX
Chronology of events in the Gendron case:
________________________________________
November,
Gendron's

name

suspected child
indicate

that

1984:

on the

Government

mailing

list

of Milton

pornography distributor.
Gendron

had

ordered a

agents

Midge's
videotape

discover
Midge,

records
entitled

"Nancy," whose
friends from

description
#6 THROB.

reads:

"NANCY:
_____

13, and

An impish 10 year-old,

her

a delicate

blonde of 12, and a fetching 10 with her playmate of 7 hideand-seek, tumble, and romp."

Spring, 1986:

Post

involving the fictitious

sends

interested
material"

flier

to

in
to

"Far Eastern Trading Company"

Gendron

information
return

office initiates an operation

(and
about

a coupon

others)

asking

Far Eastern's

with

the

and
those

"youthful

customer's name,

address, and a signed affirmation that the customer is not a

law

enforcement

officer

interested

in

"entrapping

Far

Eastern Trading Company, its agents or customers."

October
and returns it to

12, 1986:

Gendron fills out

Far Eastern.

the coupon

In reply, Far Eastern sends

Gendron a catalogue of materials available for order.

-4747

Each

item's

description

clearly

indicates

that

it

depicts

sexually explicit activities involving minors.

December 29,

1986:

letter to Far Eastern ordering

Gendron sends
two videotapes.

a handwritten
The text of

the letter is:

FROM
Mr. Daniel A. Gendron
[address]

12-29-86

Hi Peter:
I'm very happy to know you and very happy to
know that I have finally found the kind of
educational
material I've
been dreaming
of
possessing for quite some time.
I'm sorry to say
I have never had any delightful experiences of
which I find in your catalogue.
I was getting very excited just reading your
material. So excited that I have decided to order
two of your titles in VHS format, LOLITA'S SEX
LESSON 119.95 AND CHILDREN SEX ORGY 129.95 A TOTAL
OF 249.90 PLUS COD CHARGES.
I question why I could only pick two titles.
Also the LOVELY TEENS TITLES had no prices listed.
Do you have any specials on buying in larger
quantities of VHS tapes. I would also like to
know more about whether you have color tapes with
sound and how many minutes long are they. Thank
you.
/s/ Daniel Gendron

The government did not fill the order.

April,

1988:

Gendron's name

is

found

on the

mailinglist of N.M.P.C., a pornography distributor in Miami.

-4848

October,

1989:

"Artistes Internationale,"
others
carried

from the N.M.P.C.

"extremely

hard

new government

sends a

flier

sham company,

to Gendron

mailing list) indicating

to

obtain

erotica,"

specifically mentioning child pornography.

(and

that it
but

not

The flier asked

those interested in more information to reply by letter.

October
Artistes

16,

requesting

1989:

Gendron

sends

letter to

information about

child

pornography.

The text of the letter is:

Daniel A. Gendron
[address]

10/16/89

Gentlemen
I am a customer of N.M.P.C. 6883 Bird Rd. #
102 Miami, Florida 33155 who has stated that they
have contracted part of you [sic] services that
they can handle in the U.S.A.
Well like many
others like me I am very interested in the other
part of your services that are very diffcult [sic]
to obtain in my country.
I am becoming very board [sic] with adult
pornograpy [sic] and have always been interested
in owning something different if you know what I
mean. I am single 41 years of age with low income

as a janitor. I like very young girls only and

color videos. Can you help me. Thank you
/s/ Daniel Gendron
In reply,

Artistes sends Gendron a catalogue.

description

clearly indicates

that

Each item's

it portrays

minors in

sexually explicit activities.

-4949

December

18, 1989:

Gendron submits an

order to

Artistes for four child-pornographic videotapes, along

a

notation

reading

"Please

send

materials," and a Christmas card.

March 17, 1990:

more

order

with

forms

and

The order was not filled.

Gendron places

an order with

third sham company, "Can American," for two videotapes whose

descriptions
content.

clearly

indicate

their

child-pornographic

May

4, 1990:

American complaining about

Gendron writes

letter to

the delay in filling

Can

his order.

The text of the letter is:

Gentlemen:
Have you forgotten my order of March 17th.
It is now May 4, 1990.
I sent you a good check
for 149.90 to pay for one tape PTL(1) and one mag
LVM(2).
Sufficient time for a check to clear is two
weeks.
It has been 7 weeks.
If you cannot
deliver as promised then cancel my order and
return my check or if you have already cashed it
send me a refund. Please don't force me to take
other action to get my money back. Don't worry, I
am not connected in any way with law enforcement.
This is the first time I have ever sought to
obtain this type of educational materials [sic].
I
wanted it for my small library of video
collections. Please Hurry.
/s/ Dan Gendron

-5050

May
anticipatory
London

16, 1990:
search

Law enforcement officers obtain an

warrant

Alexander, which

from

U.S.

authorizes a

Magistrate

search

Joyce

of Gendron's

house after the Can American tape is delivered to him.

May
to

Gendron.

execute

the

18, 1990:
Shortly
search

The

post office delivers the tape

thereafter, law
warrant

and

enforcement officers

search

Gendron's house,

seizing the Can American tape and various related items.

-5151