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18 of 71 DOCUMENTS Caution As Of: Mar 30, 2007 UNITED STATES OF Page 1 444 F.3d 1286, *; 2006 U.S. App. LEXIS 8384, **; 19 Fla. L. Weekly Fed. C 418 18 of 71 DOCUMENTS Caution As of: Mar 30, 2007 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MICHAEL WILLIAMS, Defendant-Appellant. No. 04-15128 UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT 444 F.3d 1286; 2006 U.S. App. LEXIS 8384; 19 Fla. L. Weekly Fed. C 418 April 6, 2006, Decided April 6, 2006, Filed SUBSEQUENT HISTORY: As Amended April REAVLEY, * Circuit Judges. 21, 2006. Rehearing, en banc, denied by United States v. Williams, 186 Fed. Appx. 983, 2006 U.S. App. LEXIS 25218 (11th Cir. Fla., 2006) * Honorable Thomas M. Reavley, United US Supreme Court certiorari granted by United States Circuit Judge for the Fifth Circuit, States v. Williams, 2007 U.S. LEXIS 3581 (U.S., sitting by designation. Mar. 26, 2007) OPINION BY: Thomas M. REAVLEY PRIOR HISTORY: [**1] Appeal from the United States District Court for the Southern OPINION: [*1288] REAVLEY, Circuit Judge: District of Florida. D. C. Docket No. 04-20299-CR- Michael Williams appeals his conviction for DMM. promotion of child pornography under 18 U.S.C. § 2252A(a)(3)(B) on the grounds of facial DISPOSITION: CONVICTION REVERSED unconstitutionality. For this reason, we reverse that AND SENTENCE ON COUNT ONE VACATED; conviction. Williams was also convicted of SENTENCE ON COUNT TWO AFFIRMED. possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B), and he appeals his sentence for that offense on the grounds that the court COUNSEL: For Williams, Michael, Appellant: unconstitutionally enhanced his sentence under a Grillo, Ophelia M., Ophelia M. Grillo, P.A., mandatory guidelines scheme in violation of United CORAL GABLES, FL; Diaz, Richard J., Law States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 Offices of Richard J. Diaz, P.A., CORAL L. Ed. 2d 621 (2005). Because there was no GABLES, FL. reversible Booker error, we affirm Williams's sentence of 60-months' imprisonment. For United States of America, Appellee: Sanchez, Eduardo I., U.S. Attorney's Office - Miami Dade I. The Charges County, MIAMI, FL; Schultz, Anne R., Ponzoli, On April 26, 2004, as [**2] part of an Suzan H., U.S. Attorney's Office, MIAMI, FL. undercover operation aimed at combating child exploitation on the Internet, United States Secret JUDGES: Before BARKETT, WILSON and Page 2 444 F.3d 1286, *; 2006 U.S. App. LEXIS 8384, **; 19 Fla. L. Weekly Fed. C 418 Service Special Agent (SA) Timothy Devine that reflects [**4] the belief, or that is intended to entered an Internet "chat" room using the screen cause another to believe," that the material contains name "Lisa_n_Miami" (LMN). SA Devine illegal child pornography in violation of 18 U.S.C. observed a public message posted by a user § 2252A(a)(3)(B), which carries a sixty-month employing a sexually graphic screen name, which mandatory minimum sentence. Williams was also was later traced to the defendant Williams. charged with one count of possession of child Williams's public message stated that "Dad of pornography under 18 U.S.C. § 2252A(a)(5)(B). toddler has 'good' pics of her an [sic] me for swap Williams filed a motion to dismiss the of your toddler pics, or live cam." SA Devine as pandering charge on the grounds that 18 U.S.C. § LNM engaged Williams in a private Internet chat 2252A(a)(3)(B) is unconstitutionally overbroad and during which they swapped non-pornographic vague. While the motion was pending before the photographs. Williams provided a photograph of a trial court, the parties reached a plea agreement by two to three-year-old female lying on a couch in her which Williams would plead guilty to both counts bathing suit, and five photographs of a one to two- but reserve his right to challenge the year-old female in various non-sexual poses, one of constitutionality of the pandering provision on which depicted the child with her breast exposed appeal. The court sentenced Williams to sixty- and her pants down just below her waistline. LNM months' imprisonment for the pandering charge and sent a non-sexual photo of a college-aged female sixty months for the possession charge, to be served digitally regressed to appear ten to twelve years old, concurrently. who LNM claimed was her daughter. II. Williams's Facial Challenge to 18 U.S.C. § After the initial photo exchange, Williams 2252A(a)(3)(B) claimed that he had nude photographs of his four- year-old daughter, stating "I've got hc [hard core] A. Standard of Review pictures [**3] of me and dau, and other guys eating We review a district court's conclusion as to the her out - do you??" Williams asked for additional constitutionality of a challenged statute de novo. n1 pictures of LNM's daughter. When these pictures were not received, Williams accused LNM of being a cop. LNM responded by accusing Williams of n1 United States v. Panfil, 338 F.3d being a cop. After repeating these accusations in 1299, 1300 (11th Cir. 2003). [*1289] the public part of the chat room, Williams posted a message stating "HERE ROOM; I CAN [**5] PUT UPLINK CUZ IM FOR REAL -SHE CANT." B. The Child Pornography Problem The message was followed by a computer hyperlink, which SA Devine accessed. The In this case, we consider the constitutionality of computer hyperlink contained, among other things, a law aimed at curbing the promotion, or seven images of actual minors engaging in sexually "pandering," n2 of child pornography. Relevant to explicit conduct. The nude children in the photos this case, there are two types of child pornography. were approximately five to fifteen years old, Roughly speaking, "actual" or "real" child displaying their genitals and/or engaged in sexual pornography depicts true minors engaged in activity. sexual conduct. In contrast, "virtual" child pornography depicts what appear to be actual Secret Service agents executed a search warrant minors engaged in sexual conduct, but in reality of Williams's home. Two computer hard drives consists of computer-generated or enhanced images. seized during the search held at least twenty-two Child pornography [*1290] images of both types images of actual minors engaged in sexually are typically circulated through the Internet. While explicit conduct or lascivious display of genitalia. society has benefitted greatly from the Most of the images depicted prepubescent children technological advances of the last decade, an and also depicted sado-masochistic conduct or other unfortunate byproduct of sophisticated imaging depictions of pain. technology and the rise of the Internet has been the Williams was charged with one count of proliferation of pornography involving children. promoting, or "pandering," material "in a manner n3 Page 3 444 F.3d 1286, *; 2006 U.S. App. LEXIS 8384, **; 19 Fla. L. Weekly Fed. C 418 distribution rings. n4 Our concern is not confined to the immediate abuse of the children depicted in n2 "Pandering" is defined as the catering these images, but is also to enlargement of the to or exploitation of the weaknesses of market and the universe of this deviant conduct others, especially "to provide gratification that, in turn, results in more exploitation and abuse for others' desires." See MERRIAM of children. Regulation is made difficult, not only WEBSTER ONLINE DICTIONARY, by the vast and sheltering landscape of cyberspace, http://www.m-w.com (last visited March 23, but also by the fact that mainstream and otherwise 2006). As a legal concept, pandering is most [**7] innocuous images of children are viewed and commonly associated with prostitution. In traded by pedophiles as sexually stimulating. that context, pandering provisions are statutes penalizing various acts by intermediaries who engage in the n4 In 1998, police cracked the commercial exploitation of prostitution and "Wonderland Club," an Internet child are aimed at those who, as agents, promote pornography ring that involved members prostitution rather than against the prostitutes across twelve countries, and whose themselves. The term pandering, in some "chairman" was an American, uncovering instances, is applied by Congress and the some 750,000 images of children. courts to the promotion of obscenity. See, Membership rules required each member to e.g., 39 U.S.C. § 3008 (prohibiting pandering possess at least 10,000 images of pre-teen advertisements of sexually provocative children and to agree to exchange them with materials by mail), Ginzburg v. United other members. Other rings promote the States, 383 U.S. 463, 86 S. Ct. 942, 16 L. Ed. worst imaginable forms of child 2d 31 (1966) (considering obscene nature of pornography, such as "custom" child erotically advertised publications). Congress pornography (images of child rape created has characterized both the child to order for the consumer) and "real time" pornography regulation at issue in this case child pornography, where members may (18 U.S.C. 2252A(a)(3)(B)) and its watch the online rape of children as it occurs. unconstitutional predecessor (18 U.S.C. § In early 2006, federal authorities shut down 2256(8)(D) (1996)) as "pandering" an Internet web site called "Kiddypics & provisions. Kiddyvids" that streamed video of live child [**6] molestations involving children as young as eighteen months. n3 Total federal prosecutions of child Over the years, Congress has, by large pornography cases increased more than 452 bipartisan majorities, enacted legislation designed from 1997 to 2004. Statement of Laura H. to punish those who produce, [**8] peddle, or Parsky, Deputy Asst. Attorney General, possess child pornography. Congress has struggled Criminal Division before the Comm. On to draft legislation that captures the truly Commerce, Science, and Transportation, objectionable child-exploitative materials while United States Senate Concerning Protecting staying within the boundaries of the Supreme Children on the Internet.
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