that an identifiable minor is minor that an identifiable to appear nt with a violation of the Prosecutorial on of child pornography consisting of visual MEMORANDUM-DECISION AND ORDER Defendant. -vs- 1:07-CR-580 Case 1:07-cr-00580-NAM Document 36 Filed 12/04/08 Page 1 of 27 1 Page 12/04/08 Filed 36 Document 1:07-cr-00580-NAM Case Defendant is charged in a one-count indictme APPEARANCES:Andrew T. BaxterActing United States AttorneyNorthern District of New York T. Foley U.S. Courthouse James 445 Broadway Albany, New York 12207 Alexander BuninFederal Public Defender Assistant U.S. Attorney 39 North Pearl Street COUNSEL: OF Albany, New York 12207 Attorney for Defendant Spina, Esq Thomas District Judge Norman A. Mordue, Chief U.S. Federal Public Defender Assistant Esq. Primomo, Gene UNITED STATES OF AMERICA, UNITED STATES JOHN HOTALING, I. Introduction Today Act (“PROTECT”), and Other Tools to End the Exploitation of Children Remedies Code. 18 U.S.C. §§ codified in scattered sections of 18, 28, and 42 of the United States possessi 2252A(a)(5)(B) and 2256(8)(C) criminalize depictions that have been “created, adapted or modified is a motion added). Presently before the Court engaging in sexually explicit conduct.” (emphasis UNITED STATES DISTRICT COURT STATES DISTRICT UNITED YORK OF NEW DISTRICT NORTHERN NAM 1 535 U.S. 234 (2002). child pornography. However, in its reply papers, the images using a computer software program using a computer images e indictment’s reference to 18 U.S.C. § 2256 (8)(A) e indictment’s minor females had been “cut” from original non- original had been “cut” from females minor 2 ndant’s daughters and their friends using digital ndant’s daughters and their friends not fall into said category. Consequently the government

s repairing for her family. The non-pornographic s repairing for her family. ground that the definition of child pornography in of child pornography the definition ground that actual Doe #6. Defendant obtained the non-pornographic Doe #6. Defendant obtained the Ashcroft v. Free Speech Coalition, Ashcroft v. Free Defendant’s motion also challenged originally th Defendant’s motion Case 1:07-cr-00580-NAM Document 36 Filed 12/04/08 Page 2 of 27 2 Page 12/04/08 Filed 36 Document 1:07-cr-00580-NAM Case According to the facts stipulated to by the government and defendant herein, the New facts stipulated to by the government According to the 1 18 U.S.C. § 2256(8)(C) is unconstitutional as applied to him in light of the holding of the United of the holding in light him as applied to is unconstitutional § 2256(8)(C) 18 U.S.C. Court in States Supreme by defendant to dismiss the indictment on the the indictment to dismiss by defendant II. Factual and Procedural Background 18, 2005, and seized on January home executed a search warrant at defendant’s York State Police who (“Jane Does 1-6") females of six minor which contained images a desktop computer explicit conduct” as that phrase is defined in 18 U.S.C. § appeared to be engaged in “sexually heads of the six 2256(2). More specifically, the or partially nude females and “pasted” over the heads of unidentified nude pornographic images depicts the face of defendant poses. One of the images in various sex acts and/or lascivious intercourse with a naked who is engaged in sexual of a naked male onto the body superimposed and neck of Jane bearing the face woman images of Jane Doe #1 from a computer he wa a computer #1 from of Jane Doe images images of Jane Does # 2-6 were created by defe of Jane Does images Defendant altered the non-pornographic cameras. together with pornographic images he obtained via the Internet and his internet service provider together with pornographic images Online (“AOL”). There is no evidence that the bodies of the unidentified nude females America However, the parties agree that the bodies depicted are are those of minors. in the altered images generated. not virtual or computer which criminalizes possession of images which depict which depict possession of images which criminalizes consents to striking any reference to 18 U.S.C. § 2256 (8)(A) from the indictment. the indictment. consents to striking any reference to 18 U.S.C. § 2256 (8)(A) from government conceded that the images at issue herein do conceded that the images government NAM at Id. , 458 Ferber avers that he assisted “highly inflammatory and prejudicial” evidence “highly inflammatory knowledge of its continued circulation.” s in its memorandum of law that although there is no s in its memorandum sexual relationship. In an affidavit, New York State 3 rnet, he was on the verge of doing so. Because the legal nt. Investigator Johnstone tigation led to seizure of defendant’s computer and the tigation led to seizure of defendant’s computer , 413 U.S. 15, 24 (1973) (“[crimes for pornography , 413 U.S. 15, 24 (1973) (“[crimes pulated facts submitted by the parties, the Court finds it pulated facts submitted minor “Jane Does” whose faces appeared in the images Does” whose “Jane minor ese additional factual submissions by the government. ese additional factual submissions , 458 U.S. 747 (1982), the United States Supreme Court first upheld States Supreme , 458 U.S. 747 (1982), the United Miller v. California the Court emphasized that children are harmed not only through the that children are harmed the Court emphasized 2 Ferber, New York v. Ferber Defendant objects to the government’s submission of submission Defendant objects to the government’s Case 1:07-cr-00580-NAM Document 36 Filed 12/04/08 Page 3 of 27 3 Page 12/04/08 Filed 36 Document 1:07-cr-00580-NAM Case Defendant stored some of the aforementioned images in computer files that could be used files that in computer images of the aforementioned stored some Defendant In 2 to create a website. Along with files that contain “thumbnail” type image arrays, defendant stored defendant arrays, type image contain “thumbnail” with files that a website. Along to create contain a notation that Hottest Teen.” These pages Upstate NY’s Doe] “[Jane index pages titled there is no evidence Page Creator.” Nevertheless, Web with Arles Image they were “generated he distributed the a website or the internet or that to the subject images that defendant published to anyone. images the traditional definition of child pornography that did not meet ban on the distribution a criminal of “obscene” set forth in taken as a whole, appeal to the prurient interest in sex, to works which, . . . ] be limited must a patently offensive way, and which, taken as a whole, do not which portray sexual conduct in state the legitimate because of value.”]) or scientific have serious literary, artistic, political, health” of children. and mental emotional, interest in protecting "the physiological, III. Discussion A. of Child Pornography Constitutional Prohibition U.S. at 758. In actual production of pornography, “but also by the concerning an investigation by the New York State Police of defendant’s attempt via online communication to via online communication concerning an investigation by the New York State Police of defendant’s attempt into engaging in a solicit a person he believed to be a minor Police Investigator George Bird details how this inves of th unnecessary to consider the weight or merit alleged pornographic material identified in the indictme alleged pornographic material Investigator Bird in identifying and interviewing the argue The government defendant’s computer. obtained from to the inte evidence that defendant published these images be resolved on the sti issues raised by defendant may NAM , (quoting Id. , 495 U.S. at 108. See Osborne v. Ohio See Osborne of child pornography if it of child pornography 535 U.S. at 241. Section Osborne , “‘the value of permitting child permitting , “‘the value of Ashcroft. the type of depictions at issue in production Stanley that “is, or appears to be, of a minor engaging that “is, or appears to be, of a minor retained that prohibition at 18 U.S.C. § of child pornography. of child 4 cluding any photograph, film, video, picture, or cluding any photograph, film, the Court noted that its earlier and seemingly the Court noted that its earlier and , 394 U.S. 557, 567 (1969) (states cannot criminalize , 394 U.S. 557, 567 (1969) (states possession and view the product, thereby decreasing demand.” 495 demand.” and view the product, thereby decreasing , the Supreme Court recognized that it was “surely , the Supreme Osborne, supra

possess Ashcroft Stanley v. Georgia Osborne, also observed that after the Court’s decision in also observed that after the Court’s Case 1:07-cr-00580-NAM Document 36 Filed 12/04/08 Page 4 of 27 4 Page 12/04/08 Filed 36 Document 1:07-cr-00580-NAM Case that is, images created using actual minors. 18 U.S.C. § 2252 (1994 ed.). The Child created using actual minors. that is, images Moreover, in Before 1996, Congress defined child pornography as Before 1996, Congress defined child , 458 U.S. at 762). 756-59 & n. 10. Based in significant part on this psychological harm, the Supreme Court later the Supreme harm, on this psychological significant part n. 10. Based in 756-59 & the mere statute criminalizing upheld a 495 U.S. 103, 110-11 (1990) ("[T]he materials produced by child pornographers permanently produced by (1990) ("[T]he materials 495 U.S. 103, 110-11 causes the child victims continued existence abuse. The pornography's record the victim's in years to come."). by haunting the children continuing harm reasonable for the State to conclude that it will decrease the the State to conclude that it will reasonable for penalizes those who [merely] penalizes those who [merely] U.S. at 109-10 (emphasis added). In U.S. at 109-10 (emphasis inapposite holding in was a “narrow” one. private possession of obscene material), mere Ferber, Pornography Prevention Action of 1996 (“CPPA”) of which the first, section 2256(8)(A) and added three other prohibited categories of speech, 2256(8)(B), and the third, section 2256(8)(D), were at issue in 2256(8)(B) prohibited “any visual depiction, in or picture,” image or computer-generated computer Osborne minimus.’” if not de as exceedingly modest, pornography has been characterized Ferber B. The CPPA and NAM , Findings (4), , the Supreme Court described , the Supreme Id. Ashcroft al depiction modified to appear that an al depiction modified child actors, if a jury believes child actors, if a on “any visual depiction” did visual depiction” on “any encourage children to participate issance painting depicting a scene issance painting sometimes called “virtual child sometimes These images do not involve, let These images ing actual children. To ensure that 5 to prosecute pornographers who do to prosecute pornographers who eir production. In addition, Congress court explained: e for sexually explicit photographs, can e for sexually explicit photographs, , Finding (6)(A). As imaging technology , Finding (6)(A). As imaging Ashcroft See id. See The prohibition [in section 2256(8)(B)] [in section The prohibition section The was produced. the image at all on how not depend captures a range of depictions, as well as images, include computer-generated pornography,” which For instance, the literal traditional means. by more produced images a Rena of the statute embrace terms that “appears to be, of a minor a “picture” mythology, classical from engaging The statute also prohibits in sexually explicit conduct.” without any filmed Hollywood movies, . . in “actual or simulated engaging to be” a minor an actor “appears § 2256(2). . sexual intercourse.” to prove that a difficult Congress found, it becomes more improves, particular picture was produced us defendants possessing cannot child pornography using real minors evade prosecution, Congress extended the ban to virtual child pornography. alone harm, any children in the production process;alone harm, but Congress threaten children in other, less direct,decided the materials ways. to use the materials might Pedophiles is reluctant to engage in sexual in sexual activity. “[A] child who activity with an adult, or to pos use real minors. sometimes be convinced by viewing depictions of other children be sometimes activity.” Congressional Finding‘having fun’ participating in such “whet (3), notes pedophiles might following § 2251. Furthermore, the pornographictheir own sexual appetites” with “thereby images, of child pornography and the increasing the creation and distribution actual children.” sexual abuse and exploitation of the content of the flows from (10)(B). harm Under these rationales, of th the means not from images, images: created by computer-generated identified another problem it harder Their existence can make Case 1:07-cr-00580-NAM Document 36 Filed 12/04/08 Page 5 of 27 5 Page 12/04/08 Filed 36 Document 1:07-cr-00580-NAM Case Section 2256(8)(C) of the CPPA covered any visu at 241-42. Id. In was engaged in sexually explicit activity. actual minor of creating virtual images,” and lower tech means “common this provision as prohibiting a more creating original images, 535 U.S. at 242. In lieu of morphing.” known as “computer in sexually explicit conduct.” As the explicit conduct.” in sexually NAM 535 Ashcroft, . “By prohibiting child Id. . (citing S.Rep. No. 104-358, p. 22 Id dophiles from exploiting prurient interests in dophiles from to any of the afore-referenced categories. to any of the afore-referenced categories. 6

ear,” it did not embrace certain categories of speech ear,” it did not embrace Id. as child pornography.” , a California trade association for the adult-entertainment industry challenged the adult-entertainment , a California trade association for Ashcroft intentionally pandered Case 1:07-cr-00580-NAM Document 36 Filed 12/04/08 Page 6 of 27 6 Page 12/04/08 Filed 36 Document 1:07-cr-00580-NAM Case Finally, § 2256(8)(D) defined child pornography to include any sexually explicit image to include any sexually explicit defined child pornography Finally, § 2256(8)(D) In “morphing” allowed pornographers to “alter innocent pictures of real children so that the children so that the of real children “alter innocent pictures to allowed pornographers “morphing” sexual activity.” be engaged in appear to that was “advertised, promoted, presented, described, or distributed in such a manner that in such a manner described, or distributed presented, promoted, that was “advertised, explicit conduct.” “This engaging in sexually “a minor it depicted convey[ed] the impression” child pornographers and pe provision prevent[ed] material or distribution of pornographic sexual activity through the production child sexuality and which is added)). (1996) (emphasis and pornography produced with real children.” 535 obscenity incitement, “including defamation, the in Nevertheless, the Court held that the “speech” criminalized U.S. at 245 (citation omitted). did not fall in challenged provisions of the CPPA freedoms First Amendment Indeed, the Court found that § 2256 (8)(B) of the CPPA abridged that sexually explicit images since it extended federal prohibition against child pornography to but were “produced without using any real children.” “appeared to” depict minors which could be possessing or distributing images U.S. at 240. Section 2256(8)(B) criminalized imaging or by using advanced computer created by using adults who only looked like minors of children who do not exist.” techniques to “create realistic images §§ 2256(8)(B) and (D) as unconstitutionally overbroad. At the outset of its opinion, the Supreme §§ 2256(8)(B) and (D) as unconstitutionally from bars the government [that] while the First Amendment Court restated the “general principle speak or h dictating what we see or read or NAM To wit, To Id. also found the sweep at 243, and “b[ore] no id. Ashcroft , § 2256(8)(B) of the CPPA “abridg[ed] the “abridg[ed] of the CPPA , § 2256(8)(B) , 535 U.S. at 255. The Court found the so- , 535 U.S. at 255. id. cient,” however, in that it allowed distributors, cient,” however, an argument raised by the government in raised by the government an argument 7 described,” it prohibited a substantial amount of speech described,” it prohibited a substantial amount that (citing 18 U.S.C. § 2252A(c)). decision was handed down, Congress began an decision was handed down, Congress he statute [was] not so limited in its reach.” he statute [was] not so limited Id. rejected at 258. See Ashcroft possessors who took no part in pandering,” Id. Ashcroft e” provision of § 2256(8)(B), the Court in e” provision of § 2256(8)(B), the Court at 242. Though intended to punish pornographers and pedophiles who Id.

3 at 256. Id. [T]he CPPA does more than prohibit pandering. It prohibits [T]he CPPA does more possession of material earlier in the distribution child pornography by someone as pandered, or described, chain. The provision containing no youthful film prohibits a sexually explicit Possession a box suggesting a prohibited movie. in actors, just because it is placed was mislabeled. even when the possessor knows the movie is a crime Id. § 2256(8)(A), digital or computer-generated images that are “indistinguishable” that images § 2256(8)(A), digital or computer-generated see which contended that the overbreadth challenge to the CPPA was saved by an that the overbreadth challenge which contended Like the text of the “appears to b Case 1:07-cr-00580-NAM Document 36 Filed 12/04/08 Page 7 of 27 7 Page 12/04/08 Filed 36 Document 1:07-cr-00580-NAM Case Importantly, the Supreme Court Supreme the Importantly, Almost immediately after the immediately Almost 3 freedom to engage in a substantial amount of lawful speech” and was therefore overbroad and overbroad and was therefore of lawful speech” amount in a substantial to engage freedom unconstitutional. pornography that [did] not depict an actual child,” depict an actual that [did] not pornography affirmative defense under the statute. defense under the statute. affirmative Ashcroft and insuffi defense “incomplete called affirmative but not mere possessors of child pornography to be exonerated upon showing the objectionable possessors of child pornography to be exonerated upon showing but not mere were produced using only adults. materials C. 2003 Revised Legislation The result was the PROTECT Act which defined child effort to craft responsive legislation. children engaged in sexually explicit of “real” to images pornography to include, in addition conduct, Because § 2256(8)(D) punished “even those Because § 2256(8)(D) punished “even under the CPPA, “[o]nce a work ha[d] been described as child pornography, the taint remain[ed] on the speech in as child pornography, the taint remain[ed] a work ha[d] been described under the CPPA, “[o]nce possession unlawful even though the content otherwise would not be the hands of subsequent possessors, making objectionable.” or sold, marketed, was responsibility for how [the material] constitutionally. could not be circumscribed of § 2256(8)(D) “was quite broad.” as child pornography, “[t] pandered knowingly material NAM rev’d on 18 § 2252A(c)(2) see § 2256(8)(B), and visual § 2256(8)(B), see and "morphing" only one affirmative ) actual child and its progeny, defendant asserts that 18 8 that “the alleged child pornography S. 151 keeps this affirmative defense S. 151 keeps this affirmative Ashcroft image of an image § 2256(8)(C). The definition of “morphed” child definition of “morphed” § 2256(8)(C). The , 444 F. 3d 1286, 1296, n. 45 (11th Cir. 2006), , 444 F. 3d 1286, 1296, n. 45 (11th See remained unchanged as between the CPPA and the unchanged as between the CPPA remained innocent Ashcroft Ashcroft v. Free Speech Coalition However, the PROTECT Act extended the affirmative defense that each Act extended the affirmative However, the PROTECT See id. was involved in the production of pornographic images, pornographic images, was involved in the production of Prosecutions brought under the definition of childProsecutions brought under the pornography charge the accused with generally contained in section 2256(8)(C) having taken the it into a sexually explicit depiction. Under current law (which was not it into a sexually explicit depiction. challenged in defense is available in a morphing prosecution: proof that only used. pictures of adults were intact. prosecutions S. 151 explicitly excludes morphing However, defense the new affirmative from minors.” or was not produced using any actual minor , --- U.S.----, 128 S.Ct. 1830, 1838 (2008), was notably unavailable to those , --- U.S.----, 128 S.Ct. 1830, 1838 see United States v. Williams Case 1:07-cr-00580-NAM Document 36 Filed 12/04/08 Page 8 of 27 8 Page 12/04/08 Filed 36 Document 1:07-cr-00580-NAM Case Based on the principles outlined in defendants charged under § 2256(8)(C): PROTECT Act. PROTECT Act. possessors and distributors of these defined added), while available “to most (emphasis materials,” other grounds person depicted in the alleged unlawful material “was an adult at the time the material was material the time “was an adult at the in the alleged unlawful material person depicted and mere § 2252A(a)(1), (2), (3)(A), (4) charged under 18 U.S.C. produced” to defendants that no defense, however, PROTECT Act’s new affirmative possession offenses under (5). The “actual minor” pornography as discussed in pornography as possession of mere since it criminalizes U.S.C. § 2256(8)(C) is unconstitutional as applied to him depictions that have been created or modified to appear as though an identifiable minor is minor though an identifiable to appear as created or modified that have been depictions explicit conduct. engaged in sexually added). S.Rep. No. 108-002, 51 at n. 2 (2003) (emphasis Challenge D. Overbreadth from images of actual minors engaging in sexually explicit conduct, sexually explicit engaging in of actual minors images from NAM ,

Bach .” Ashcroft. was decided Ferber Ashcroft ved a visual depiction that “involve[d] the of 18 U.S.C. § 2256(8)(C) in the indictment. of 18 U.S.C. § 2256(8)(C) tion of “morphed” images of child pornography. images tion of “morphed” 9 In pointed dicta, however, the Court noted that In pointed dicta, however, the Court did not challenge § 2256(8)(C), the Court did not did not challenge § 2256(8)(C), only one Circuit has addressed directly the CPPA’s only one Circuit has addressed directly Based thereupon, defendant argues that his First Based thereupon, Ashcroft Ashcroft, , 400 F.3rd Cir. 622 (8th Cir. 2005), the defendant was indicted under the , 400 F.3rd Cir. 622 (8th Cir. 2005), 535 U.S at 242. Since Case 1:07-cr-00580-NAM Document 36 Filed 12/04/08 Page 9 of 27 9 Page 12/04/08 Filed 36 Document 1:07-cr-00580-NAM Case Because the respondents in United States v. Bach in 2002. Bach was thereafter convicted of receipt of child pornography under 18 U.S.C. § in 2002. Bach was thereafter convicted of receipt of child pornography 2252A(a)(2) after a jury found he had knowingly recei conduct” or “ha[d] been created, adapted, or engaging in sexually explicit use of a minor [was] engaging in sexually explicit conduct.” to appear that an identifiable minor modified of child pornography 400 F. 3d at 629. The trial court’s instruction concerning the definition Though the indictment charged defendant Bach with criminal conduct that had occurred in or conduct that Bach with criminal charged defendant Though the indictment until after about August 2000, an interlocutory appeal delayed Bach’s trial In decision in Court’s charges prior to the Supreme CPPA on various child pornography consider this provision of the CPPA directly. consider this provision of the CPPA pornography, they fall within the definition of virtual child may images “[a]lthough morphed in interests of real children and are in that sense closer to the images the implicate Ashcroft, and/or distribu prohibition against the possession “morphed” images, that is, images which have been altered to appear to depict identifiable minors appear to depict been altered to which have images that is, images, “morphed” the child engaged in that no actual contends conduct. Defendant in sexually explicit engaged exploiting and they were produced “without depicted in the altered images conduct or activities or published the is no evidence that he distributed defendant argues that there Further, minors.” images composite that he created these Indeed, defendant claims to anyone. images morphed fantasies.” to “record his mental merely are infringed by application freedoms Amendment NAM at See id.

Id. ,] the definition in used similar language. 400 F. language. used similar Ashcroft , 400 F. 3d at 631 (emphasis added). added). , 400 F. 3d at 631 (emphasis Ashcroft Bach tree, grinning, with his pelvis tree, grinning, with .” e virtual pornography, was protected by the e virtual pornography, was protected to the definitions of child pornography in of AC's head had been skillfully of AC's ecord a crime. The picture depicts a ecord a crime. 10 ild pornography before the passage of the CPPA, passage of the before the ild pornography identifiable minor “because it did not involve the abuse of a real minor and there was no of a real minor “because it did not involve the abuse ., as well as the definition in § 2256(8)(C) added by the CPPA. added by the CPPA. in § 2256(8)(C) as the definition ., as well , Bach contended that his conviction for receipt of child pornography under , Bach contended that his conviction Ashcroft et seq One email in Bach's account had been received from Fabio Marco in been received from account had in Bach's One email an attached to Bach had email Italy; . . .. Marco's photograph which showed a young nude boy sitting in a erection. Below the legs opened wide, and a full tilted upward, his Evidence of AC, a well known child entertainer. the name was image at trial showed that a photograph inserted of the nude boy so that the resulting onto the photograph appeared to be a nude picture of AC posing in the tree. image young nude boy who is grinning and sitting in a tree in a lascivious pose with a full erection, his legs spread, and his pelvis tilted upward. The jury of could looking at the picture that it is an image find from and that thean identifiable minor, interests of a real child were Unlike the virtual pornography protected by the Supreme Court in Unlike the virtual pornography protected by the Supreme face implicatesFree Speech Coalition, the picture with AC's the interests of a real child and does r Ashcroft The pertinent facts underlying Bach’s conviction were as follows: underlying Bach’s conviction The pertinent facts The Eighth Circuit disagreed. “In contrast Case 1:07-cr-00580-NAM Document 36 Filed 12/04/08 Page 10 of 27 of 10 Page 12/04/08 Filed 36 Document 1:07-cr-00580-NAM Case 630. Relying on that the definition Bach argued Specifically, violated the First Amendment. these circumstances to depict an identifiable that only “appeared covered images of child pornography in § 2256(8)(C) and that the definitions found unconstitutional in minor” pornography, lik 3d at 630. Bach argued morphed Court in Supreme head.” with AC's to produce the image was used evidence that a real minor incorporated § 2256(8)(A), the definition of ch the definition § 2256(8)(A), incorporated 18 U.S.C. § 2251 18 U.S.C. to an subsection (C) targets harm subsections (B) and (D) [of the CPPA found unconstitutional in NAM both , a case , defendant relies on Zidel Bach . In was anchored to two facts was anchored to Ferber. Bach Ashcroft and iable face of AC in a lascivious iable face of AC , who combined images of the head of an images , who combined 11 implicated in the image received by received in the image implicated e Supreme Court of New Hampshire overturned the Court of New Hampshire e Supreme Bach worked as a photographer at a children’s camp in worked as a photographer at a children’s camp Zidel Free Speech Coalition Free Speech Coalition receipt of an image that actually recorded a crime against a child. Second, recorded a crime that actually receipt of an image implicated by being posed in such a way. posed in such by being implicated children are The interests of real Bach showing a boy with the identif Bach showing a can constitutionally which involves the type of harm pose. This image be prosecuted under , 940 A.2d 255 (N.H. 2008), also decided after , 940 A.2d 255 (N.H. 2008), also and In support of the argument that his case is distinguishable from from that his case is distinguishable In support of the argument Defendant argues that the Eighth Circuit’s holding in that the Eighth Circuit’s holding Defendant argues Case 1:07-cr-00580-NAM Document 36 Filed 12/04/08 Page 11 of 27 of 11 Page 12/04/08 Filed 36 Document 1:07-cr-00580-NAM Case at 632. Finally, the court noted: Finally, the court at 632. Amherst in which capacity he photographed campers to be used in an end-of-summer video to be used in an end-of-summer in which capacity he photographed campers Amherst the by Zidel to the camp, yearbook or scrapbook. 940 A.2d at 256. On the discs provided upon superimposed females heads and necks of minor depicting director “discovered images Id. defendant states that unlike the defendant in defendant states that unlike the defendant which are distinguishable in his own case. First, defendant contends that he was charged with which are distinguishable in his child pornography while Bach was charged with of images possession of morphed mere possession he actually posed in a sexually explicit manner, and the body of another minor identifiable minor of adults and no with images heads and necks innocent photos of minors’ morphed merely activities. children actually engaged in sexual State v. Zidel astonishingly on point with the one at bar, th of child images charged under state law with possession of morphed conviction of a man pornography. To wit, the defendant in Id. NAM

Id. may , read Zidel

of such

4 , and Id. Ashcroft Osborne Ferber and distribution Ferber , Ashcroft e, Zidel “d[id] not claim that the state e, Zidel “d[id] not claim Id. 12 Id. ] no specific evidence that the images in question that the images ] no specific evidence , support the narrow view that materials cannot be cannot , support the narrow view that materials lly penetrating or touching a female's genitalia; and four lly penetrating or touching a female's Ferber argued that applying New Hampshire’s child pornography statute child pornography New Hampshire’s argued that applying Zidel 's discussion of 's . at 262. Like defendant in the present cas . at 262. Like defendant in the present Id Ashcroft (emphasis added). Rather, Zidel argued that “ (emphasis Id. One image shows an act of sexual intercourse; two images depict a person engaging in or about to shows an act of sexual intercourse; two images One image The defendant in The defendant in that while Court agreed with Zidel, holding Supreme The New Hampshire 4 Case 1:07-cr-00580-NAM Document 36 Filed 12/04/08 Page 12 of 27 of 12 Page 12/04/08 Filed 36 Document 1:07-cr-00580-NAM Case classified as child pornography unless children are involved in the production process -- not the classified as child pornography unless but the . . . actual, -- can be cut, pasted, and morphed ‘post-production’ process where images or photography of child sexual abuse.” sordid, filming naked adult female bodies, with the naked bodies engaging in various sexual acts.” various sexual engaging in the naked bodies bodies, with female naked adult parts of actual children.” contain[ed] the body and the head created by combining “images namely images, of morphed to his private possession or virtual, engaging in of adult bodies, real existing child, with images shoulders of a real, his right to free speech under both the federal and state sexually explicit conduct,” violated constitutions. and at least one of his family members appeared in some of the images. The parties stipulated The parties images. of the in some appeared members one of his family and at least necks and heads, there [was that, “[o]ther than the criminalizing from the government or federal constitutions preclude[d] material.” that depict actual children but depict no images, that morphed the conclusion together, mandate [ sic] activity, do not constitute child pornography.” children actually engaging in sexually set of rationales and principles relied upon by According to Zidel, “the overall reinforced by to the prohibited of child pornography as “closer” images have, in dicta, classified morphed engage in oral sex; two images depict a person digita engage in oral sex; two images explicit sexual activity. show comparably images NAM

Osborne, involved and of 18 495 U.S. at 111). Ferber RSA 458 U.S. at 751- 458 U.S. Bach see receipt See Ashcroft [ ] ... child at 264. “[I]n the private at 264. “[I]n the Ferber, Osborne, te or foreign distinguished the facts before Id. , the creation of the Zidel distribute (citing , 535 U.S. at 242), , 535 U.S. Id. Bach [ ] or , 400 F.3d at 630. Since these , 394 U.S. at 567). , 394 U.S. at 567). of child pornography, engaged in sexually explicit Ashcroft ported in intersta receive ns no evidence indicating that any boy 13 see Bach , 940 A.2d at 263 (citing , 535 U.S. at 250). possession Zidel Ashcroft Stanley v. Georgia , 400 F.3d at 632. Thus, in , the defendant challenged his conviction “for , the defendant challenged his conviction (citing (citing , 940 A.2d at 264 (quoting at 264 (quoting , 940 A.2d Id. Id. Bach Bach on two grounds: Zidel , Bach of these morphed images depict similar conduct by a real child. depict similar images of these morphed photograph involved the use and sexual exploitation of a real child. In contrast, the record here contai activity. 649-A:3(c)(f). . . . Second, unlike these morphed images, the 649-A:3(c)(f). . . . Second, unlike these images, morphed picture depicted a young nude pictures do not remain within the privacy of a person's home, but pictures home, within the privacy of a person's do not remain real children the interests of into commerce, instead disseminate Here, the defendant was not in such cases. be implicated arguably may charged with receiving or distributing the images. U.S.C. § 2252A(a)(5). A conviction under 18 U.S.C. § 2252A(a)(2) U.S.C. § 2252A(a)(5). A conviction requires that a person “knowingly has that contains child pornography] that pornography [or material or shipped or trans been mailed, including by any means, 18 U.S.C. § by computer.” commerce added); 2252A(a)(2) (emphases First, in child [400 F. 3d] at pornography under [18 U.S.C.] § 2252A(a)(2),” added), not 629 (emphasis of child pornography, not merely possession. possession. merely pornography, not of child held that the harm caused by child pornography outlined in caused by child held that the harm Ferber opined that “while distribution of these morphed images might implicate the interests implicate might images distribution of these morphed opined that “while Zidel Case 1:07-cr-00580-NAM Document 36 Filed 12/04/08 Page 13 of 27 of 13 Page 12/04/08 Filed 36 Document 1:07-cr-00580-NAM Case Zidel material in in material of real children, mere possession does not cause harm to the child.” to the child.” harm possession does not cause mere of real children, distribution distribution 52). only the observes the images; real child nor the general public neither the possession realm, them.” possessor views the mere follow from a record of abuse, “does not necessarily such as recording “permanent[ly]” images.” possession of these morphed those in it from Instead, the prospective harm is “contingent upon the occurrence of another arguably unlawful is “contingent upon the occurrence of another Instead, the prospective harm act; to wit distribution.” NAM , , are Osborne Bach See Brooklyn , 940 A.2d at and , 437 F.3d 278, , --- U.S.----, 128 Zidel Broadrick v. Oklahoma Osborne , Ashcroft . Consequently he contends that . Consequently ) “limited” and only “as applied” to him. Thus, applied” to him. and only “as ) “limited” concluded: 1) “where the naked bodies do 1) “where the concluded: Zidel ., and only when the overbreadth is not only ., and only when the overbreadth United States v. Williams Nat'l Abortion Fed'n v. Gonzales atute's invalidity remains the same for both types of same the invalidity remains atute's id time that a statute is enforced, it will necessarily yield time type of challenge, “is the substantive rule of law to be Zidel muster” when applied to a mere possessor of morphed when applied to a mere muster” challenges ... permit a single injured party to assert the challenges ... permit 14 the facial validity of § 2256(8)(C). In his reply the facial validity of § 2256(8)(C). In finition of child pornography in § 2256(8)(C) is either w, usually a constitutional rule of law, invalidates the asserted on behalf of all possession offenses under § sexual activity but in which no actual sexual activity by eed be demonstrated (facial, in all applications; as-applied, eed be demonstrated (citing de[ ] no more relief than would be obtained over an relief than would be obtained over de[ ] no more Id. court’s analyses of court’s analyses to his private possession of morphed images. to his private possession of morphed 5 Zidel ., 462 F. 3d 219, 228 (2d Cir. 2006) (“Facial and as-applied challenges h allegedly renders the statute invalid is the First Amendment. h allegedly renders the statute invalid is the First Amendment. , 535 U.S. at 249). Ashcroft “In other words, how one must demonstrate the st demonstrate “In other words, how one must Defendant initially termed his challenge to § 2256(8)(C Defendant initially termed Defendant contends that the Defendant contends "According to our First Amendment overbreadth doctrine, a statute is facially invalid if it overbreadth doctrine, a statute "According to our First Amendment 5 Case 1:07-cr-00580-NAM Document 36 Filed 12/04/08 Page 14 of 27 of 14 Page 12/04/08 Filed 36 Document 1:07-cr-00580-NAM Case Id. correct and that the facts here are identical to those in the facts here are identical to those correct and that 263 (citing applied 2256(8)(C) is unconstitutional as not depict body parts of actual children engaging in sexual activity;” 2) no part of an image is part of an image activity;” 2) no in sexual actual children engaging body parts of not depict that “no the image,” possesses abuse;” and 3) a person “merely “the product of sexual face is depicted in the image.” results to the child whose harm demonstrable 940 A.2d at 264-65 (emphasis in original). Thus original). Thus in at 264-65 (emphasis 940 A.2d 1. Substantive Legal Standard of protected speech." prohibits a substantial amount doctrine is “strong medicine,” S.Ct. 1830, 1838 (2008). The overbreadth real, but “substantial . . . judged in relation to the statute's plainly legitimate sweep." legitimate plainly in relation to the statute's real, but “substantial . . . judged 413 U.S. 601, 613 (1973), to be used “'sparingly,” used “'sparingly,” 413 U.S. 601, 613 (1973), to be overbroad and/or vague and does not “pass[] constitutional pornography in which children appear to be engaged in memorandum, however, defendant does argue that the de however, defendant does memorandum, children occurred. Whether his challenge is personal or 2256(8)(C), the substantive law whic the government asserted that defendant thereby conceded the government 293-94 (2d Cir. 2006) (Walker, C.J., concurring) (“Facial claims of all future litigants by making a showing that each of all future litigants by making claims an unconstitutional result,” but such challenges “provi exhaustive series of as-applied challenges”)). Legal Servs. Corp. v. Legal Servs. Corp differ in the extent to which the invalidity of a statute n in a personal application”)). “Invariant, however,” in either used.” challenges, namely, by showing that a specific rule of la challenges, namely, statute, whether in a personal application or to all.” NAM , 458 U.S. at see also Ferber , 413 U.S. at 613; , 413 U.S. at 613; mechanical, or other means, of sexually explicit or other means, mechanical, computer or computer-generated image or image or computer-generated computer 15 iting distribution of materials under § 2256(8)(C) is iting distribution of materials fendant’s specific argument concerning its unlawful fendant’s specific argument Broadrick , there comes a point at which the chilling effect of an of effect a point at which the chilling , there comes , 380 U.S. 479, 491, and n. 7, 497 (1965). However, as the and n. 7, 497 (1965). However, , 380 U.S. 479, 491, , --- U.S.----, 128 S.Ct. at 1839 (“The first step in overbreadth , --- U.S.----, 128 S.Ct. at 1839 (“The Broadrick Williams

See Dombrowski v. Pfister Defendant does not argue that § 2256(8)(C) fails to reflect a legitimate state interest. 2256(8)(C) fails to reflect a legitimate Defendant does not argue that § “any visual depiction, First, under 18 U.S.C. § 2256(8)(C), “child pornography” means Case 1:07-cr-00580-NAM Document 36 Filed 12/04/08 Page 15 of 27 of 15 Page 12/04/08 Filed 36 Document 1:07-cr-00580-NAM Case 769, n. 24; in Court noted Supreme that of prohibiting all enforcement be, cannot justify though it may overbroad law, significant comprehensive state interests in maintaining "legitimate law--particularly a law that reflects at 615. constitutionally unprotected conduct." 413 U.S. controls over harmful, 2. Application of § 2256(8)(C) while prohib Rather, defendant contends that which pornographic images possession of morphed mere acceptable, the statute also criminalizes examine actual sexual or lascivious activity. The Court must do not depict children engaged in to de the scope of the statute before turning facial application. whether a statute to determine analysis is to construe the challenged statute; it is impossible reaches too far without first knowing what the statute covers.”). a. Express Purpose of Statute video, picture, or including any photograph, film, by electronic, or produced picture, whether made 495 U.S. at 112. The showing that a law punishes a "substantial" amount of protected free of protected amount punishes a "substantial" that a law at 112. The showing 495 U.S. construction unless a limiting law, "until and that of invalidate all enforcement to suffices speech, deterrence to threat or the seeming so narrows it as to remove or partial invalidation protected expression." constitutionally NAM was material , --- U.S.----, 128 S.Ct. at Williams .” was an adult at the time the was an adult at the time a reasonable viewer to believe that the actors a reasonable viewer to believe that T Act clearly mean that any visual depiction that any visual T Act clearly mean upreme Court has recently held that “‘Sexually Court upreme The challenged statute also defines “producing” The challenged statute also defines 16 Id. ng, publishing, or advertising.” 18 U.S.C. § ng, publishing, or advertising.” each person affirmative defense to a charge of unlawful possession of “morphed” images of images defense to a charge of unlawful possession of “morphed” affirmative In the context of the PROTECT Act, the S In the context of the PROTECT This conclusion is supported by review of the defenses available to defendants charged This conclusion is supported by review of the defenses available only one Case 1:07-cr-00580-NAM Document 36 Filed 12/04/08 Page 16 of 27 of 16 Page 12/04/08 Filed 36 Document 1:07-cr-00580-NAM Case or otherwise) it may not actually have occurred or otherwise) conduct, where -- such visual depiction has been created, adapted, or modified to appear that an to appear that adapted, or modified been created, depiction has where -- such visual conduct, “[S]exually § 2256(8)(C). conduct.” 18 U.S.C. explicit is engaging in sexually minor identifiable -- “actual or simulated under the statute means explicit conduct” whether anal-genital, or oral-anal, including genital-genital, oral-genital, (i) sexual intercourse, sadistic or (iv) sex; (ii) bestiality; (iii) masturbation; or opposite of the same between persons person.” 18 of the genitals or pubic area of any or (v) lascivious exhibition abuse; masochistic U.S.C. § 2256(B). the suggestion that it depiction of the sex act rather than merely explicit conduct’” connotes actual is merely sexual intercourse is not sexual intercourse that is occurring[, a]nd ‘simulated’ that is explicitly portrayed, even though (through camera suggested, but rather sexual intercourse tricks 1841 (emphasis added). “The portrayal must cause added). “The portrayal must 1841 (emphasis on camera.” actually engaged in that conduct issui as “producing, directing, manufacturing, in the PROTEC 2256(3). The definitions contained is using an identifiable minor, of “sexually explicit conduct,” produced or created in any part by subject to the statute’s prohibition. The PROTECT Act with possession or distribution of child pornography under § 2256(8)(C). allows child pornography -- that is, proof that “ NAM , supra , 940 A.2d at state what defendant See Zidel S.Rep. No. 108-002, S.Rep. No. does not see also (2), (3)(A), (4) or (5)]will be , the government is required to prove that he , the government is directly at odds with defendant’s premise is directly at odds tive history. As previously noted, Congress 17 sexual abuse of a child. Thus, the Zidel unavailable if the evidence was produced, shows that the image directly or indirectly, from the The reason for this is simple. The affirmative defense [available to The reason for this is simple. The affirmative defendants charged under § 2252A(a)(1), ” 18 U.S.C. § 2252A(c)(1)(B) (emphasis added); added); (emphasis § 2252A(c)(1)(B) ” 18 U.S.C. The implication of § 2256(8)(C) is apparent from the plain meaning of the statute. Any of the statute. the plain meaning of § 2256(8)(C) is apparent from The implication Case 1:07-cr-00580-NAM Document 36 Filed 12/04/08 Page 17 of 27 of 17 Page 12/04/08 Filed 36 Document 1:07-cr-00580-NAM Case herein claims -- that one may exonerate oneself from criminal liability by proving that “each liability by proving criminal exonerate oneself from -- that one may herein claims was the material was an adult at the time in the ‘sexually explicit conduct’ person involved the plain language of statute produced.” Indeed, 18 U.S.C. § was used in the “produc[tion],” the defense that no “actual minor” since it eliminates under § 2256(8)(C). Thus, to the extent that in any prosecution 2252A(c)(2), of the material decided in defendant herein argues that as was produced, that is “the actual, sordid, pornography, of morphed used an actual child in the “production” wrong. of child sexual abuse,” he is manifestly or photography filming 51 at n. 2. “Each person” clearly means each individual that appears in the visual depiction and visual depiction appears in the individual that each clearly means 2. “Each person” 51 at n. is “produced” the “visual depiction” which referred to this provisions is obviously the “material” the statute Importantly, or other means. morphing by computer 262. b. Legislative Intent or -- morphed constructed to apply to pornographic images doubt about whether the statute is engaged in sexually explicit conduct otherwise -- which only appear to depict identifiable minors is vanquished upon review of provision’s legisla explicitly removed the affirmative defense that “no actual minor[s]” were used in the production were used defense that “no actual minor[s]” the affirmative explicitly removed charged under § 2256(8)(C): of child pornography for defendants images of morphed NAM not Although He is thus did not actually occur: concluded “[t]he definition in [§ youthful looking adults which h for a "first generation" image generation" h for a "first body actually is that of AC or lly inserted onto the body of the Bach on appears to be a picture of AC e any possible doubt on this issue, e any possible doubt , it could defeat the entire point of , it could defeat the of a sexually explicit image using of a sexually explicit on § 2256(8)(C) of the former CPPA, the identical on § 2256(8)(C) of the former image. In either situation, it cannot In either image. to apply to innocent images of actual children to apply to innocent images 18 Because many morphed images thus images morphed Because many By contrast, the morphing provisionBy contrast, the Indeed, Ashcroft 6 , this image created an identifiable child victim , this image intended expressly examined the impact of the impact examined Bach that directly a later a child and for abuse of records the sexual uses such an that image generation affirmative defense is unavailable bot is unavailable defense affirmative be said that "the using was not produced child pornography alleged or minors." any minor actual provision. To eliminat the morphing has been expressly excluded. provision the morphing is explicitly aimed at the creation is explicitly aimed of a child. an innocent image directly or indirectly,do not use, either of a sexually explicit image be arguedany child, it could that it does not (incorrectly) by some of a child and fitsinvolve any "use" within defense. the affirmative were successful If such an argument that a photograph of the head of a Evidence in the record indicates well known juvenile, AC, was skillfu nude boy so that the resulting depicti with a knowing grin. engaging in sexually explicit conduct there is no contention that the nude the production of the involved in that he was image, a lasting an identifiablerecord has been created of AC, minor child, explicitseemingly engaged in sexually activity. the picture is displayed. Unlike the every time victimized virtual using pornography or the pornography could be prosecuted under subsections (B) and (D), as discussedcould be prosecuted under subsections in Free Speech Coalition of sexual exploitation. Although 6 Case 1:07-cr-00580-NAM Document 36 Filed 12/04/08 Page 18 of 27 of 18 Page 12/04/08 Filed 36 Document 1:07-cr-00580-NAM Case that § 2256(8)(C) was , 400 F. 3d at 632 (emphasis added). , 400 F. 3d at 632 (emphasis 2256(8)(C)] was intended by Congress to prevent harm to minors resulting from the use of resulting from to minors 2256(8)(C)] was intended by Congress to prevent harm is . . . in pornographic depictions, even where the identifiable minor ‘identifiable images S.Rep. No. 108-002, 51 at n. 2 (2003) (emphasis added). Moreover, the Eighth Circuit agreed in added). Moreover, the Eighth Circuit agreed (emphasis S.Rep. No. 108-002, 51 at n. 2 (2003) Bach manipulated to depict sexual conduct, even where such conduct to depict sexual conduct, manipulated Bach provision appears in the PROTECT Act as noted above. NAM Ashcroft with critical legal Zidel prohibits criminalizing endeavored to analyze Ashcroft Zidel , 400 F.3d at 631 (quoting S. Rep. at 631 (quoting , 400 F.3d pictures were created using , he fails to reconcile Bach sought to distribute these images, es by superimposing non-offensive es by superimposing gislative history of the challenged provision. .’” 19 Bach which held that and Zidel to 18 U.S.C. § 2256(8)(C) is dubious given the plain Ashcroft Zidel “actually recorded a minor engaging in sexual activity:” “actually recorded a minor so the children were never put at risk by entering the illegal child so the children were never put Further, thepornography market. Instead, both men created the imag Instead, both men engaged in upon the bodies of adult women of minors digital images sexual acts and poses. Neither man privacy of their own homes. digital editing in the elementary and its analysis of Zidel Zidel Having so construed the statute, the Court now turns to the question whether § 2256(8)(C) the statute, the Court now turns Having so construed Case 1:07-cr-00580-NAM Document 36 Filed 12/04/08 Page 19 of 27 of 19 Page 12/04/08 Filed 36 Document 1:07-cr-00580-NAM Case and its impact on a New Hampshire statute which criminalized “morphed” images of child images “morphed” statute which criminalized on a New Hampshire and its impact pornography, the application of reading of the PROTECT Act and the explicit le possession of morphed images that depict identifiable minors on naked adult bodies when no depict identifiable minors that images possession of morphed do so. Although defendant child has actually engaged in sexual conduct. This Court will not relies on distinctions in his own case. Moreover, while the court in Defendant’s Memorandum, at 9. Defendant urges the Court to adopt the construction of the at Defendant’s Memorandum, in New Hampshire Court of Supreme 104-358, at 8 (1996)). Based on the foregoing, the Court finds that § 2256(8)(C) applies to any applies finds that § 2256(8)(C) the Court on the foregoing, at 8 (1996)). Based 104-358, engaged in sexually explicit child “appears to be” in which an identifiable pornographic image was the material such activity at the time no child actually participated in conduct, even if produced. 3. Overreach neither he nor the of protected speech. According to defendant, prohibits a “substantial” amount defendant in directly involved in sexually explicit activities involved in sexually directly NAM Zidel , that is, the CPPA as it , that is, failed to recognize that passage failed to recognize Bach Zidel for the general proposition that “no 20 was produced without using “actual minor[s].” 18 minor[s].” was produced without using “actual Zidel in January 2008, in January 2008, Bach that the CPPA created doubt about whether it applied to that the CPPA created doubt about arguendo, As referenced above, the PROTECT Act: 1) extended the affirmative As referenced above, the PROTECT . Defendant here is not charged with possessing morphed child pornography child morphed is not charged with possessing . Defendant here , the court likened the state statute before it criminalizing possession of morphed possession it criminalizing statute before likened the state , the court Ashcroft. Zidel Ashcroft In To the extent that defendant relies on Case 1:07-cr-00580-NAM Document 36 Filed 12/04/08 Page 20 of 27 of 20 Page 12/04/08 Filed 36 Document 1:07-cr-00580-NAM Case U.S.C. §2252A(c)(2). However, the PROTECT Act eliminated expressly the defense in § the PROTECT Act eliminated U.S.C. §2252A(c)(2). However, under § of child pornography images with possessing “morphed” 2252A(c)(2) for anyone charged 2256(8)(C). Assuming or simulated child pornography to the federal statute at issue in statute at issue to the federal child pornography or simulated existed in 2000 and after parts of said legislation were rendered unconstitutional by the Supreme were rendered unconstitutional after parts of said legislation existed in 2000 and Court in offense under the updated version of said federal however, he is charged with an under the CPPA, it construed When PROTECT Act. in the CPPA the infirmities of to cure some Act was a legislative attempt the PROTECT of by identified “was an adult” at the of child pornography in an alleged image defense that each person depicted to possessors of child pornography; was produced, 18 U.S.C. § 2252A(c)(1)(B), the material time the material and 2) created a new defense that actually engaged in the when no minors minors of identifiable pornographic images morphed of the the plain meaning Act erased it. It is evident from sexual acts depicted, the PROTECT “innocence” of the picture is not PROTECT Act and its explicit legislative history that the alleged is depicted therein. Thus, the holding in a defense to § 2256(8)(C) if an identifiable minor a child whose face, but not his or her naked 940 A.2d at 263, results to harm,” demonstrable is inapposite to the present case since it is based on an inaccurate assessment of current federal assessment is inapposite to the present case since it is based on an inaccurate law. NAM Bach Bach Zidel ’s statement Bach was distinguishable relied on the explicit The court in The court

Bach in the conduct depicted in , 400 F. 3d at 632) Bach as though they were used in the Bach Bach in concluding that the images in concluding itly aimed at the creation of a sexually at itly aimed did not misquote the language from the language from did not misquote failed to note that Bach at 632. Nevertheless, “a lasting record ha[d] at 632. Nevertheless, “a lasting Zidel the critical citation which followed focused at least partly on the harm to AC, the to focused at least partly on the harm Zidel ’s recognition that “‘[t]his is not the typical ’s recognition that 21 by children in the morphed images created by created images by children in the morphed Bach unchanged from the CPPA, in characterizing a “typical” unchanged from ndment” appeared a rather lengthy paragraph apart and in ndment” Bach omitted had not actually engaged Bach 940 A.2d at 264 (quoting 940 A.2d at 264 ’s recognition that AC, the minor child depicted in a ’s recognition that AC, the minor picture of a child has been altered to appear that the child is has been altered to appear that picture of a child Bach noted that “the nude body actually is [not] that of AC” nor was noted that “the nude body actually Zidel, Bach innocent actual sexual conduct ’s description of a “typical morphing case” and its assertion that “there may well be case” and its assertion that “there may ’s description of a “typical morphing The court’s emphasis on the word “innocent” in the quotation from on the word “innocent” in the quotation from The court’s emphasis quoted the above-referenced two statements from from quoted the above-referenced two statements 7 failed to recognize that overlooked at 632 (“[T]he morphing provision is explic at 632 (“[T]he morphing Bach , 400 F. 3d at 632. Moreover, although Zidel Zidel Zidel Bach See Bach Moreover, Notably, 7 Case 1:07-cr-00580-NAM Document 36 Filed 12/04/08 Page 21 of 27 of 21 Page 12/04/08 Filed 36 Document 1:07-cr-00580-NAM Case The court in the morphed photo. Indeed, the morphed Zidel. even though he lascivious pose, was harmed of the image.” AC “involved in the production based on the absence of explicit activity.” engaged in sexually child, seemingly minor been created of AC, an identifiable Id. morphing case in which an case in which morphing [§ 2256(8)(C)] well be instances in which may explicit conduct,’ and ‘there engaging in sexually Amendment.’” violates the First seized upon two phrases used by the Eighth Circuit in used by the Eighth two phrases seized upon wit, the To and protected by the First Amendment. Zidel were harmless possessed by defendant quoted Court of New Hampshire Supreme in original). (emphasis was persuaded that Court of New Hampshire suggests that the Supreme body, is depicted in a pornographic image, this Court strongly disagrees. this Court strongly image, depicted in a pornographic body, is legislative history of § 2256(8)(C) of the PROTECT Act, case. morphing of a child.”) (quoting S.Rep. No. 108-002, at n. 2 (2003)). using an innocent image explicit image concerning alteration of an “innocent picture.” Specifically, concerning alteration of an “innocent same sentence. In fact, same instances in which [§ 2256(8)(C)] violates the First Ame provision, the court concerning the CPPA’s morphing distinct contexts. NAM Id. , Hoey Ashcroft at 692. Hoey Id. and the particular facts before it in facts before and the particular Bach as] real, but that the sadism [was] as well.” [was] as] real, but that the sadism ct[ed] a man about to penetrate, but not yet ct[ed] a man is at odds with every other federal and state court is at odds with every 22 ons of violence.” 508 F. 3d at 689 (citing U.S.S.G. ons of violence.” 508 F. 3d at 689 , 508 F. 3d 687 (1st Cir. 2007), the defendant , 508 F. 3d 687 (1st Cir. 2007), the Specifically Hoey claimed that the prosecutor was that Specifically Hoey claimed Zidel See id. reached the improvident conclusion that lack of actual sexual conclusion reached the improvident Zidel United States v. Hoey , 940 A.2d at 264-65. , 940 A.2d at 264-65. engaged in sexually explicit activity, in rejecting the defendant’s argument. argument. rejecting the defendant’s activity, in in sexually explicit engaged not See Zidel The Court notes that the holding of The Court notes as “wrong”: of Hoey’s argument The court “rejected” the premise Case 1:07-cr-00580-NAM Document 36 Filed 12/04/08 Page 22 of 27 of 22 Page 12/04/08 Filed 36 Document 1:07-cr-00580-NAM Case § 2G2.2(b)(4)). The image relied on by the district court in applying the enhancement relied on by the district § 2G2.2(b)(4)). The image expression of pain and disgust who [was] being anally “portray[ed] a young boy with an the small penis and sizes of the man's The relative older man. penetrated by the penis of a much pain.” expression, all suggest[ed] the likelihood of ongoing boy, in addition to the boy's depi 508 F. 3d at 691. In Hoey’s view, the “image [could] not be of sadism.” necessarily penetrating, the child, so the image was obligated to prove the portrayed conduct actually occurred to contended that the government justify the sentencing enhancement. required to have proven “not only that the child [w appealed from a four-level sentence enhancement for possession of material “that portray[ed] for possession of material a four-level sentence enhancement appealed from conduct or other depicti sadistic or masochistic which has confronted, even indirectly, the constitutional question raised by the dicta in even indirectly, the constitutional which has confronted, child of images morphed possession of penalties for criminal concerning statutes which impose pornography. To wit, in child who had child who nuances of properly the its failure to analyze Based on light of current federal law, light of current federal is merely - if such an image image in a morphed of identifiable minor conduct on the part First it protected speech under the distributed by a defendant - renders possessed and not Amendment. NAM ; 2) Id. . at 693. (citing Id Ashcroft Id. The court noted Id. noted that the Supreme .” Hoey on that child -- is still harmful, and on that child -- is still harmful, . (emphasis added); if added); . (emphasis id s intent, there would be express s intent, it did choose is to the contrary. it did choose ctionary defines “portray” as “to ctionary defines depiction [that] has been created, adapted, or dge of its continued circulation.” dge of its continued circulation.” [U.S.S.G. §] 2G2.2(b)(4) and the child [U.S.S.G. §] 2G2.2(b)(4) 23 ely correspond to the severity of the conduct is engaging in sexually explicit conduct.” on]” of consideration of § 2256(8)(C) in sadistic does not conduct” or masochistic not actually inflicted Ashcroft v. Free Speech Coalition Ashcroft v. Free portrays portrays emphasized children are harmed “not only through the actual children are harmed emphasized identifiable minor Ashcroft “An image of an identifiable, real child involving sadistic conduct -- even if of an identifiable, real child involving “An image and Id. That an image “ image That an sadistic conduct, it depict actual require that Commission' the Sentencing that were language to that effect. The language Webster's Third New International Di Webster's represent “to describe in words,” by drawing, painting, engraving,” be to do not require the image Guidelines simply and to “enact.” The sadistic conduct. of real an accurate documentation (emphasis added). It was for this reason that the federal child pornography statute (emphasis Id. Ferber , 495 U.S. at 110-11) (“[T]he materials produced by child pornographers permanently , 495 U.S. at 110-11) (“[T]he materials The First Circuit found that “[it was] this continuing psychological harm that Hoey this continuing psychological harm The First Circuit found that “[it was] Case 1:07-cr-00580-NAM Document 36 Filed 12/04/08 Page 23 of 27 of 23 Page 12/04/08 Filed 36 Document 1:07-cr-00580-NAM Case The First Circuit found “no conflict between The First Circuit pornography statute as interpreted by pornography statute that was to portray conduct manipulated added)). In support of its conclusion, the court cited: (quoting 18 U.S.C. § 2256(8)(C) (emphasis Court’s “careful[] reserv[ati 1) the Supreme overlook[ed].” to appear that an modified record the victim's abuse. The pornography's continued existence causes the child victims abuse. The pornography's record the victim's to come.”)). by haunting the children in years continuing harm Id. the court in psychological harm, Based “in significant part” on this possession of child pornography.” the mere Court “upheld a statute criminalizing Osborne inflicted will lik harm of emotional the amount depicted.” defined “child pornography” as including a “visual production of pornography, but also by the knowle production of pornography, but also that both NAM engaged (emphasis in original) (emphasis Id.

8 (emphasis added). (emphasis Id. appears to be een created of those children seemingly Court as falling within the scope of Court as falling within the scope determined that “[i]mages of [the sort that “[i]mages determined *8. “In that regard, they implicate[d] concerns *8. “In that regard, they implicate[d] , 2003 WL 22888857, at *7-8 (D.N.H. Dec. 22888857, at *7-8 , 2003 WL ’s arguments that his photo “collages” made by made that his photo “collages” ’s arguments d “morphed” material addressed in § 2256(8)(C), material d “morphed” Cobb 24 Ashcroft mply appear to be minors, Cobb's collages involved collages Cobb's minors, appear to be mply involve real children.” , 400 F.3d at 629-32). did noted that “[u]nlike a Renaissance painting of a fictitious subject

Bach Cobb v. Coplan 2003 WL 1666665 (Me. Super. March 5, 2003), a Superior 2003 WL altering photographs of actual children to make it appear altering photographs of actual , insofar as a lasting record ha[d] b , 535 U.S. at 242); and 3) the “similar reasoning” of the Eighth reasoning” the “similar at 242); and 3) , 535 U.S. (citing Id.

. Ashcroft Id. cannot be seen to proscribe a prohibition against apparent Ashcroft and Bach State v. Monahan, , 535 U.S. at 241). The court in (citing Ashcroft sexually explicit conduct -- as long as the person depicted is actually can a child because the depiction of actual sexually explicit conduct as the depiction of apparently sexually explicit conduct. be as harmful for Whether the depiction is of a child who is actually engaged in, bestiality, or it is of a child who only example, Ferber Indeed, the District of New Hampshire see id. In the unreported decision of In the unreported Finally, in 8 Ashcroft Case 1:07-cr-00580-NAM Document 36 Filed 12/04/08 Page 24 of 27 of 24 Page 12/04/08 Filed 36 Document 1:07-cr-00580-NAM Case , 8, 2003), the district court rejected the defendant 8, 2003), the district catalogs children's faces taken from nude bodies with cut-outs of children's juxtaposing adult collages were “not The court found defendant Cobb’s the First Amendment. were protected by described by the sort of ‘virtual pornography’” collages section 2256(8)(B), “since those Circuit’s holding in Circuit’s holding the above-cited dicta relating “manipulated images of identifiable children” to the images in the images children” to of identifiable images “manipulated dicta relating the above-cited Ferber (citing the prohibite contrived by the defendant] . . . are involves morphing since “computer sexually explicit conduct.” that those children are engaged in Court in the State of Maine held as an alternative ground for revoking probation for a defendant Court in the State of Maine held that: accused of possessing child pornography or a Hollywood movie that employs adult actors who si that employs or a Hollywood movie of real children.” 2003 WL 22888857, at pornographic images identified in both engaged in sexual activity.” NAM and Ferber , 535 U.S. at 242, 254 (“in the engaged in sexually explicit conduct.” Ashcroft . on is “based . . . on the principle that . . . on is “based . . . on the principle e, even if the state's motion must motion the state's e, even if Ferber 25 , --- U.S.----, 128 S.Ct. at 1841-42 (“categorical[ly] , --- U.S.----, 128 S.Ct. at 1841-42 actual children the creation of the speech is itself the crime of child the creation of the speech is itself , Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Pittsburgh Press Co. v. Pittsburgh , --- U.S.----, 128 S.Ct. at 1841. As discussed above, these , --- U.S.----, 128 S.Ct. at 1841. Ferber see also Williams Williams be seen to rest on section 2924(1)(F)to rest on section be seen which of material [possession by persons conduct of sexually explicit “the appearance” contains which criminalizes 14 as opposed to § 2924(1)(F) under the age of that statutory actual sexual activity by children], depicting materials is constitutionally sound. formulation in such conduct, the exploitation and damage caused by the sexual caused conduct, thein such damage exploitation and Therefor children obtains. abuse of , 413 U.S. 376, 387-89 (1973) (balance of internal citations ommited). of internal citations ommited). , 413 U.S. 376, 387-89 (1973) (balance Thus, 18 U.S.C. § 2256(8)(C), which criminalizes morphed images of child pornography images morphed Thus, 18 U.S.C. § 2256(8)(C), which criminalizes ) (emphasis added); ) (emphasis Case 1:07-cr-00580-NAM Document 36 Filed 12/04/08 Page 25 of 27 of 25 Page 12/04/08 Filed 36 Document 1:07-cr-00580-NAM Case : obscene material depicting (actual or virtual) children engaged in sexually explicit depicting (actual or virtual) : obscene material conduct, and any other material depicting conduct, and any other material Miller what it is unlawful to possess ha[s] no social value and thus, like obscenity, enjoy[s] no First what it is unlawful to possess ha[s] protection.”) (citing Amendment Relations of actual sexual conduct on the part of an or photographing created without the filming definition of child The statute's does not violate the First Amendment. identifiable minor, held constitutionally proscribable in pornography “precisely tracks the material case of material covered by case of material abuse” as protected expressi exclu[ding]” child pornography 2003 WL 1666665, at *2-3 (emphasis added). added). 1666665, at *2-3 (emphasis 2003 WL “protected expressive activity” is not morphing children via computer breathing and identifiable of living, of pornographic images the creation and possession This Court holds that under the Constitution. placed “closer” to the types of images the interests of real children” and are “implicate images in Amendment outside the protection of the First NAM at 1841-42, for “it is at 1841-42, for “it id. , 535 U.S. at 245-246 (First , 535 U.S. , 458 U.S. at 756-58 (citations , 458 U.S. at 756-58 Ferber fect clarity and precise guidance owth not of the First Amendment, vagueness of the law as applied to 26 Free Speech Coalition Free Speech

Id. have never been required even of regulations that restrict expressive activity.” [The] vagueness doctrine is an outgr A conviction the Fifth Amendment. but of the Due Process Clause of fails to comport with due process if the statute under which it is notice ordinary intelligence fair to provide a person of obtained fails of what is prohibited, or is so standardless that it authorizes or Although enforcement. encourages seriously discriminatory ordinarily “[a] plaintiff conduct that is clearly who engages in some of the proscribed cannot complain in the Firstthe conduct of others,” we have relaxed that requirement context, permitting a statute is plaintiffs to argue that Amendment overbroad because it is unclear whether it regulates a substantial of protected speech. But “per amount , --- U.S. ----, 128 S.Ct. at 1845 (internal citations omitted). The Court first notes that The Court first notes , --- U.S. ----, 128 S.Ct. at 1845 (internal citations omitted). , --- U.S.----, 128 S.Ct. at 1839 (citing 128 S.Ct. at , --- U.S.----, Defendant further contends that § 2256(8)(C) is unconstitutional because of “vague’ Defendant further contends that Case 1:07-cr-00580-NAM Document 36 Filed 12/04/08 Page 26 of 27 of 26 Page 12/04/08 Filed 36 Document 1:07-cr-00580-NAM Case Williams factual or legal support for his defendant asserts a bald “void for vagueness” challenge with no an ordinary person what is prohibited by § 2256(8)(C). In that it would be unclear to argument statutory language. E. Vagueness Challenge E. Vagueness evident beyond the need for elaboration that a State's interest in ‘safeguarding the physical and interest in ‘safeguarding need for elaboration that a State's evident beyond the is ‘compelling.’” of a minor’ psychological well-being in relevant literature, is that found judgment as well as the “Th[is] legislative judgment, omitted). to the physiological, is harmful as subjects of pornographic materials the use of children First under the “easily passes muster health of the child,” which judgment and mental emotional, Amendment.” Williams Amendment does not protect obscenity or pornography produced with actual children). There is with actual children). produced or pornography not protect obscenity does Amendment bounds,” prohibition falls well “within constitutional no doubt that this NAM to dismiss the indictment based on the indictment to dismiss at 1846. 27 Id. There is no such indeterminacy here. The statute defines child pornography as morphed here. The statute defines indeterminacy There is no such motion Based upon the foregoing, defendants’ IT IS SO ORDERED. Syracuse, New York Case 1:07-cr-00580-NAM Document 36 Filed 12/04/08 Page 27 of 27 of 27 Page 12/04/08 Filed 36 Document 1:07-cr-00580-NAM Case any event, “[w]hat renders a statute vague is not the possibility that it will sometimes be difficult that it will sometimes not the possibility statute vague is renders a “[w]hat any event, rather the proved; but has been fact it establishes the incriminating whether to determine fact is.” of precisely what that indeterminacy images of “identifiable minors” engaged in sexually explicit activity. This requirement, together This requirement, in sexually explicit activity. engaged minors” of “identifiable images without using actual who create such images exclusion of a defense for those with an express possession of pornographic the mere criminalize doubt the provision intends to children, leave no engaged in the and no children actually are morphed of children even when the images images therein. sexually explicit conduct depicted IV. Conclusion be DENIED. must constitutional infirmity 4, 2008 Dated: December NAM