IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. John DOE, Defendant/Appellant. UNITED STATES of America, Plaintiff/Appellee

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1 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT John DOE, Defendant/Appellant v. UNITED STATES of America, Plaintiff/Appellee ON APPEAL FROM THE UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA Case No DEFENDANT-APPELLANT S BREIF ON THE MERITS Attorneys for the Appellant Team Number 106

2 QUESTIONS PRESENTED I. Whether the evidence was sufficient to support the finding that the photographs taken by John Doe were child pornography under 18 U.S.C. 2252A (a) (1), (2), and (3), when sexting is protected speech, the photographs emulated art, Jane Coe assisted with and consented to posing for the pictures in her own home, there was no actual evidence that the images were transported interstate, and the intended recipients were in-state residents? II. Whether John Doe is required to register as a sex offender under 42 U.S.C (SORNA) when the plain meaning of SORNA applies only to juveniles adjudicated delinquent for offenses comparable to or more severe than sexual assault, the plain meaning of SORNA explicitly excludes consensual conduct between minors, the underlying conduct is not comparable to a specified offense against a minor, and the underlying conduct is not comparable to or more severe than other enumerated Tier II offenses? i

3 TABLE OF CONTENTS Table of Authorities iv Questions Presented..i Jurisdictional Statement..vi Opinion Below vi Statement of the Case...1 Summary of the Argument...3 Argument.5 I. THE DISTRICT COURT S CONVICTION OF JOHN DOE UNDER 18 U.S.C. 2252A WAS IMPROPER BECAUSE CHILD PORNOGRAPHY IS DISTINCT FROM SEXTING, A REASONABLE EXPECTATION OF PRIVACY MUST NOT EXIST FOR THE GOVERNMENT TO INTRUDE, AND THE SUPREME COURT HAS HELD THAT INTERENT USAGE ALONE IS NOT INTERSTATE COMMERCE... 5 A. The District Court incorrectly held that the photographs were a form of child pornography because the photographs did not meet the standard of sexually explicit conduct and contained artistic value B. The District Court incorrectly held that John Doe and Jane Coe had no reasonable expectation of privacy because there was a subjective belief that the pictures would not be seen by a third party...11 C. The District Court s adoption of the per se approach was incorrect because it failed to consider under the jurisdictional element that John Doe s Internet use alone did not establish interstate commerce, and that the intended recipients resided in-state II. JOHN DOE IS NOT REQUIRED TO REGISTER AS A SEX OFFENDER UNDER 42 U.S.C BECAUSE THE PLAIN MEANING OF SORNA APPLIES ONLY TO JUVENILES ADJUDICATED DELINQUENT FOR OFFENSES COMPARABLE TO OR MORE SEVERE THAN SEXUAL ASSAULT, THE PLAIN MEANING OF SORNA EXPLICITLY EXCLUDES CONSENSUAL CONDUCT BETWEEN MINORS, THE UNDERLYING CONDUCT WAS NOT A SPECIFIED OFFENSE AGAINST A MINOR, AND THE UNDERLYING CONDUCT IS NOT COMPARABLE TO OR MORE SEVERE THAN ANY OTHER ENUMERATED TIER II OFFENSE..17 ii

4 A. John Doe is not required to register as a sex offender under SORNA because the plain meaning of SORNA applies only to juveniles adjudicated delinquent for offenses comparable to or more severe than sexual assault B. John Doe is not required to register as a sex offender under SORNA because the plain meaning of SORNA explicitly excludes consensual conduct between minors C. John Doe is not required to register as a sex offender under SORNA because the underlying conduct is not a specified offense against minor. 19 D. John Doe is not required to register as a sex offender under SORNA because the underlying conduct is not comparable to or more severe than a specific enumerated Tier II offense.22 Conclusion.24 iii

5 TABLE OF AUTHORITIES Cases 67 Ops. Cal. Atty. Gen. 235 (1984) A.H. v. State, 949 So.2d 234 (Fla. Ct. App. 2008) Aschroft v. Free Speech Coalition, 535 U.S. 234 (2002)... 5, 9, 10 In re T.A.J., 62 Cal.App.4th 1350 (1998)... 6, 11, 12, 13 Miller v. Skumanick, 605 F. Supp.2d 634 (M.D. Pa. 2009)...7 New York v. Ferber, 458 U.S. 747 (1982)... 5, 7, 9, 10 Robinson v. U.S., 586 F.3d 683 (9th Cir. 2008) State v. A.R.S., 684 So.2d 1383 (Fla. Ct. App. 2008) U.S. v. Arvin, 900 F.2d 1385 (9th Cir. 1990).... 5, 8 U.S. v. Begay, 622 F.3d 1187 (9th Cir. 2010) U.S. v. Byun, 539 F.3d 982 (9th Cir. 2008), cert. denied., 129 S.Ct. 771 (2008).19, 20, 22, 23, 24 U.S. v. Dodge, 590 F.3d 924 (11th Cir. 2010) , 20, 21 U.S. v. Hill, 322 F.Supp.2d 1081 (C.D. Cal. 2004)...8 U.S. v. Juvenile Male, 590 F.3d 924 (9th Cir. 2008)... 17, 19 U.S. v. Sutcliffe, 505 F.3d 944 (9th Cir. 2007) U.S. v. Wright, 625 F.3d 583 (9th Cir. 2010)... 6, 14, 15, 16 U.S. v. Williams, 553 U.S. 285 (2008)... 5, 7 Statutes Involved/Constiutional Provisions 18 U.S.C (2007) U.S.C. 2252A (2009)... passim 42 U.S.C (2006)... passim iv

6 42 U.S.C (2006).. 2, 3, 17, 18, U.S.C (2006)... passim 42 U.S.C (2006)....2 Miscellaneous Elizabeth C. Eraker, Stemming Sexting: Sensible Legal Approaches To Teenagers Exchange of Self-Produced Pornography, 25 Berkley Tech. L.J. 555 (2010)... 6, 7, 10 Robert H. Wood, The Failure Of Sexting Criminalization: A Plea For The Exercise Of Prosecutorial Restraint, 16 Mich. Telecomm. & Tech. L. Rev. 151 (2009) v

7 STATEMENT OF JURISDICTION Since these issues arise from offenses against the laws of the United States, this Court has jurisdiction under 18 U.S.C OPINION BELOW The opinion of the United States District Court for the Central District of California in Doe, No is unreported. Its judgment and opinion are available in the Record. R vi

8 STATEMENT OF THE CASE Jane Coe, a fifteen-year-old high school sophomore, and John Doe, a seventeen-year-old high school senior, were in a romantic relationship for several months. R. 2. Choosing to exercise prudence in their relationship, the couple had not yet engaged in sexual intercourse. R. 2. John Doe was excited about an upcoming trip to Europe upon his graduation from high school. R. 2. While researching the cultural background of Europe, he was captivated by two of Europe s most celebrated works of art, Francisco de Goya s Clothed Maja and Naked Maja. R. 2. Both John Doe and Jane Coe were astounded at how the two pieces resembled Jane Coe s natural beauty. R. 3. Jane Coe and John Doe freely chose to produce photographs of Jane Coe in an attempt to memorialize their consensual romantic relationship. Jane Coe unambiguously consented to pose for both the Clothed Maja and the Nude Maja in her own bedroom when she knew her parents would not be home. R. 3.Her pose for the Nude Maja mirrored the historically accurate, full-frontal nudity and reclining pose of the original painting. R. 3. John Doe used his cellular phone to take both the Clothed Majas and the Nude Majas. R. 3. He sent the three Nude Majas to Jane Coe by way of , intending to make them available exclusively to her on both her cellular phone and laptop. R. 3. Both Jane Coe and John Doe were pleased with the Clothed Maja and Nude Maja replicas. R. 3.The three Nude Majas were shared with John Doe s best friend, Fred B, by way of . R. 3. Later regretting her participation in the artistic endeavor, Jane Coe became upset that the Nude Majas were transmitted beyond their original intention. R. 3. Jane Coe s mother informed the Attorney General after overhearing Jane Coe yell at John Doe for sharing the pictures with his best friend, Fred B. R. 3. 1

9 The claim against John Doe was initiated in the United States District Court for the Central District of California, alleging violations of 18 U.S.C. 2252A, for distribution of child pornography. The district court determined that John Doe violated 18 U.S.C. 2252A for knowingly distributing a visual depiction of an actual minor engaged in sexually explicit conduct. 18 U.S.C. 2252A(a)(3)(B)(ii); R. 5.The court based its determination by adopting a per se approach that transmitting material through the Internet inherently placed the images in interstate commerce. R. 5. As a result of this conviction, the district court determined that John Doe was required to register under SORNA as a Tier II sex offender under 42 U.S.C , because his offense was punishable by imprisonment for more than one year and involved the production or distribution of child pornography. R. 6. The district court determined that the sex offense John Doe committed was a criminal offense that was a specified offense against a minor. 42 U.S.C (5)(A)(ii). The district court determined that John Doe committed a specified offense against a minor by possessing, producing, or distributing child pornography. 42 U.S.C (7)(G). Producing or distributing child pornography is a Tier II sex offense under SORNA, requiring the offender to keep registration current for twenty-five years. 42 U.S.C (a)(2). Exercising judicial discretion, the court sentenced John Doe to five months of probation because his acts were not the same as those who sexually exploit children and reproduce and use child pornography for profit. R. 5. On November 12, 2010, John Doe filed a Notice of Appeal in the Ninth Circuit Court of Appeals seeking reversal of the District Court s determination that the evidence was sufficient to support a finding that he produced and distributed child pornography under 18 U.S.C. 2252A and the requirement that he register as a Tier II sex offender under SORNA. R. 8. 2

10 SUMMARY OF THE ARGUMENT This Court should reverse the decision of the United States District Court for the Central District of California and find that Petitioner John Doe did not violate 18 U.S.C. 2252A and is not required to register as a Tier II sex offender under 42 U.S.C Sexting is a form of protected speech because, unlike child pornography, the act occurs consensually, voluntarily, and does not constitute sexually explicit conduct. The totality of the circumstances, including the artistic value of the work, is also considered. The three nude photographs emulated famous art work easily accessible through a Google search, and had artistic value to both John Doe and Jane Coe, thus demonstrating the non-exploitive nature of the photographs. In the absence of actual sexual intercourse, the State of California s Constitution does grant limited sexual privacy rights to minors. Both individuals had a reasonable expectation of privacy that the photographs would not be distributed to a third party. In addition, John Doe and Jane Coe had a reasonable expectation at the time the pictures were taken that they would remain between them, and would not be distributed to or interfered with by a third party. Furthermore, under the jurisdictional element, John Doe s Internet use alone did not establish interstate commerce. The district court improperly used the per se approach when considering whether the images traveled interstate. The Ninth Circuit, affirmed by the Supreme Court, has rejected the per se approach and explicitly held that the act of transmitting through the Internet does not inherently place material in the stream of interstate commerce. Although John Doe s s were sent via the Internet, the recipients were located in the state of California. The statute also requires knowledge of interstate transmission. John Doe had no knowledge of transmissions beyond his intended in-state recipients. Because John Doe s image transmissions remained intrastate the jurisdictional element of interstate commerce has not been met. 3

11 John Doe is not required to register as a sex offender under 42 U.S.C , because the plain language of SORNA s registration requirement applies only to juvenile offenses that are comparable to or more severe than aggravated sexual assault. Although John Doe was adjudicated delinquent at the time of his offense, sexting is not comparable to or more aggravated than sexual assault. Additionally, John Doe is not required to register as a Tier II sex offender because the plain language of SORNA specifically excludes offenses involving consensual conduct if the victim was at least thirteen years old and the offender was not more than four years older than the victim. Jane Coe was at least thirteen years old and the difference between her age and John Doe s age was not more than four years older. Furthermore, Jane Coe unambiguously consented to have her photographs taken in order to replicate both the Clothed Maja and the Nude Maja, and was pleased with the results. Finally, John Doe is not required to register as a sex offender under SORNA because the underlying facts of his offense do not indicate that sexting was a specified offense against a minor. The Ninth Circuit, followed by the Eleventh Circuit, adopted a non-categorical approach in determining whether a defendant has committed a sex offense under SORNA, and is thereby required to register as a sex offender. The court considers the underlying conduct, not the elements of the conviction statute. In fact, the district court explicitly stated that John Doe s underlying conduct was not comparable to or more severe than the production or distribution of child pornography. The underlying circumstances of John Doe s conviction demonstrate that the Nude Maja is not the equivalent of a sexually-exploitive photograph of a minor. Additionally, John Doe s actual conduct underlying his offense is not comparable to or more severe than other enumerated Tier II offenses Based on the underlying actions of John Doe s conviction, not the 4

12 elements of his conviction statute, the nudity exhibited in the Nude Maja is not the equivalent of child pornography, and is not a Tier II offense. Therefore, this Court should reverse the district court s finding that John Doe violated 18 U.S.C. 2252A and was subsequently required to register as a Tier II sex offender. ARGUMENT I. THE DISTRICT COURT S CONVICTION OF JOHN DOE UNDER 18 U.S.C. 2252A WAS IMPROPER BECAUSE CHILD PORNOGRAPHY IS DISTINCT FROM SEXTING, A REASONABLE EXPECTATION OF PRIVACY MUST NOT EXIST FOR THE GOVERNMENT TO INTRUDE, AND THE SUPREME COURT HAS HELD THAT INTERENT USAGE ALONE IS NOT INTERSTATE COMMERCE. This Court should reverse the decision of the lower court and hold that the facts do not sufficiently support a conviction of John Doe under 18 U.S.C. 2252A. 18 U.S.C. 2252A. The Supreme Court has held that child pornography is an unprotected form of speech. New York v. Ferber, 458 U.S. 747, 757 (1982). However, sexually explicit conduct under the child pornography definition established by the Court is not synonymous with the actions involved in sexting. U.S. v. Williams, 553 U.S. 285, 290. (2008). Because of the vagueness of the sexually explicit conduct definition, jurors are required to apply an objective standard to the determination of whether an image is child pornography or not. U.S. v. Arvin, 900 F.2d 1385, 1390 (9th Cir. 1990). An objective view of the photographs at issue demonstrates the innocence of two minors compelled to act on their artistic motivations. The Supreme Court has held that the artistic motivation of the entire work, and not just the explicit scene, must be considered when determining whether an image is child pornography. Aschroft v. Free Speech Coalition, 535 U.S. 234, 236 (2002). Jane Coe posed for the photographs in an effort to emulate two art paintings John Doe came across online, and therefore they both had artistic motivations for taking the photographs. 5

13 Furthermore, if there is a reasonable expectation of privacy the government should not intrude on individual privacy rights. In re T.A.J., 62 Cal.App.4th 1350, 1361 (1998). Narrowly tailored, California s Constitution grants limited sexual privacy rights to minors, as long as actual sexual intercourse has not occurred. Id. Under this approach, both John Doe and Jane Coe had limited sexual privacy rights. Additionally, both individuals had a reasonable expectation of privacy because they acted with the belief that a third party would not see the photographs. Finally, the material must actually be transported interstate to meet the jurisdictional requirement of the statute. 18 U.S.C. 2252A. The district court incorrectly used a per se approach when determining whether the photographs traveled interstate. This Circuit has held that Internet transmissions are insufficient to establish that material has inherently entered the stream of commerce. U.S. v. Wright, 625 F.3d 583, 592 (9th Cir. 2010). The statute also requires that the individual distributing or transmitting the material has knowledge that the materials are traveling interstate. Id. at 595. Because John Doe s transmissions were directed towards just two instate residents, the photographs did not enter the steam of interstate commerce. Therefore, based on the facts of the present case a conviction under 18 U.S.C. 2252A cannot be supported and the district court judgment should be reversed. A. The District Court incorrectly held that the photographs were a form of child pornography because the photographs did not meet the standard of sexually explicit conduct and contained artistic value. Sexting is remarkably different than child pornography because of its voluntary and non-exploitive nature and must be treated as a protected form of speech. Elizabeth C. Eraker, Stemming Sexting: Sensible Legal Approaches To Teenagers Exchange of Self-Produced Pornography, 25 Berkley Tech. L.J. 555, 586 (2010) [hereinafter Self-Produced Pornography ]. Sexting is defined as sending or posting sexually suggestive text messages and images, 6

14 including nude or semi-nude photographs, via cellular telephones or over the Internet Miller v. Skumanick, 605 F. Supp.2d 634, 637 (M.D. Pa. 2009). In contrast, the child pornography definition focuses on the non-consensual sexually explicit conduct of the child involved. U.S. v. Williams, 553 U.S. 285, 290. (2008). Child pornography, which subjects children to unimaginable harm in the creation of the images, differs markedly from sexting, where the images reflect consensual, and likely legal, activity. Self-Produced Pornography supra, at 582. Sexting prosecutions are not the same as child pornography prosecutions because the Supreme Court has established a state interest of protecting child exploitation, which is not the harm, if any, caused by sexting. Ferber, 458 U.S. at 758. John Doe s action of taking photographs of his girlfriend with his camera phone fall squarely within the realm of the Miller sexting definition. John Doe ed the Nude Majas of Jane Coe that he had taken with his cell phone camera to his girlfriend and best friend, thus engaging in sexting, not child pornography. R. 3. Additionally, because the nature of the pictures does not meet the sexually explicit conduct requirement of the Williams child pornography definition, the photographs are protected speech under the First Amendment. The district court has already conceded that the photos are not necessarily obscene, nor do they depict explicit sexual intercourse, therefore labeling the photographs as sexually explicit conduct is the Government s last alternative if they wish to prosecute John Doe under this vague statute. While the statute seeks to protect helpless children incapable of consenting to sexually explicit conduct, the consensual nature of sexting contradicts any possibility that an individual is being exploited. Self-Produced Pornography, supra at 583. Recognizing the vagueness of the phrase, the court has attempted to define sexually explicit conduct as graphic or simulated lascivious exhibition of the genitals or pubic area of a 7

15 minor. U.S. v. Hill, 322 F.Supp.2d 1081, 1084 (C.D. Cal., 2004). While the term lasciviousness has not been explicitly defined by the courts, this Circuit has held that the determination of whether an image is lascivious is a question of fact. U.S. v. Arvin, 900 F.2d 1385, 1390 (9th Cir. 1990). In the Arvin case, the jury instructions requested that the jurors make the distinction between an innocent image and a pornographic image. Id. In an effort to clarify exactly what defines sexually explicit conduct the Hill court plainly stated that not all nude pictures of children are child pornography. Hill, 322 F.Supp at However, even with the Act s vague language, under the Hill definition of sexually explicit conduct the photographs do not qualify as child pornography. The three photographs were nearly identical, demonstrating both John Doe and Jane Coe s desire to emulate the Nude Maja painting. R. 3. If John Doe attempted to coax Jane Coe into engaging in sexually explicit behavior he would have asked her to alter her pose, rather than take multiple pictures in the same position. Furthermore, Jane Coe s choice to pose for the photographs were not controlled in any way by John Doe, as she voluntarily posed for him lying on her bed in her own bedroom, when she knew her parents would not be home. R. 3. Finally, an application of this Circuit s objective approach in Arvin to the Nude Majas at issue here demonstrates that Jane Coe was not engaging in sexually explicit conduct. A reasonable person viewing John Doe s printed color copies of both the Clothed Maja and Nude Maja, the photographs of Jane Coe clothed, and later nude, would undoubtedly observe the innocent progression of a young couple emulating art. Self-produced pornography of the type often used by teenagers when sexting has not been rejected as a protected form of speech, while child pornography has been explicitly rejected as protected speech under the First Amendment. Ferber, 458 U.S. at 757. The Supreme Court refused to recognize only obscene images as a negative form of protected speech. Id. at

16 Sexually explicit materials are also unprotected speech, but only if the materials seek to exploit children. Id.. at 761. In Ferber, the Court stated that when the performance is viewed in isolation without looking at the entire work, its artistic value is diminished. Id. at 780. Furthermore, when the material in question does not fall under the obscenity standard nor suggest sexual abuse, it is protected by the First Amendment. Aschroft v. Free Speech Coalition, 535 U.S. 234, 236 (2002). After Ferber, in Aschroft, the Supreme Court held that that the Child Pornography Protection Act (CPPA), a similar act to the statute at issue, did not meet the Ferber standard, because the protected harm was not geared towards the state interest of protecting the exploitation of children. Aschcroft, 535 U.S. at 234. The Supreme Court, affirming this Circuit s ruling, reasoned that the Act relied heavily on subsequent acts that may occur as a result of the produced images, but that the images alone did not necessarily lead to child exploitation. Id. at 236. The district court analyzed the nature of the photographs in isolation, failing to consider the surrounding circumstances that led to John Doe taking and Jane Coe consenting to the photographs. John Doe s artistic motivation to photograph Jane Coe was not an effort to engage in profit through the exploitation of a child. As evidenced by the Ashcroft Court, the whole work, and the motivation for such work, must be considered when determining whether an image has artistic value. John Doe s curiosity in art was well-founded, as he was gathering information for an upcoming trip to Europe when he came across pictures of the paintings. R. 2. While the subject of the Nude Maja painting is entirely unclothed in a reclining pose that exhibits full frontal nudity, including the pubic area, the paintings are categorized as two of the most famous paintings at the Prado Museum in Madrid. There is no evidence that Jane Coe, a high school sophomore, was exploited by John Doe taking the photographs. Although certain risks may exist when sexting occurs between minors, sexual abuse is often not a factor, and where the images 9

17 exchanged between teens circulate outside the intended audience with a haunting effect on the participants, the lack of sexual exploitation in sexting factually distinguishes the degree of this harm from the regulatory interest of surpassing importance central to Ferber. Self-Produced Pornography, supra at 584. Fundamental to the First Amendment is the concept that the artistic value of a work is not dependent on one specific explicit scene. Ashcroft, 535 U.S. at 235. The sexually explicit nature of an image should not be determined by viewing the image alone, but rather by viewing the work and circumstances as a whole. Id. at 235. Charging minors for sexting in the same way child pornography is charged, without considering the circumstances surrounding the occurrence, disproportionately vilifies the underlying behavior, which in many instances is legal sexual activity at least partially protected by state constitutional rights to privacy. Id. The state interest protected under 18 U.S.C. 2252A is that of the exploited child in an adult-minor situation, with a desire to protect that child s health and quality of life. State v. A.R.S., 684 So.2d 1383, 1387 (Fla. Ct. App. 2008). If the statute was utilized to prosecute minors as felons for every act of sexting that occurred in minor-minor situations, many minors may find themselves as convicted felons. Self-Produced Pornography, supra at 588. In addition, the requirement that minors register as sex offenders when convicted under the statute will lead to long-term affects for that child who at the mere age of minority still has much time to live their life and adjust their ways. In addition to Jane Coe agreeing to pose for the photographs, she allowed John Doe to take the pictures with his camera phone, rather than an actual camera, demonstrating Jane Coe s ambivalence to posing for the photographs. R. 3. As noted by the Ashcroft court the motivation for the Nude Majas may not be viewed separate from the motivation for the Clothed Majas. All of the photographs taken revolved around the paintings that both John Doe and Jane Coe sought 10

18 to emulate. Jane Coe even dressed wearing clothes similar to that of The Clothed Maja in an effort to replicate the painting. To manipulate the innocence of a young couple who had never engaged in sexual intercourse, despite the promiscuousness of many of their peers, into an exploitation scheme when art was clearly the driving force of the photographs is unwarranted. As noted in Ashcroft, to prosecute John Doe based on an assumption of what may occur as a result of the photographs being taken is insufficient because John Doe s intentions to emulate art, whatever Jane Coe s intentions may have been, were clear. B. The District Court improperly held that John Doe and Jane Coe had no reasonable expectation of privacy because there was a subjective belief that the pictures would not be seen by a third party. The sexual privacy rights of minors are fundamental under the Constitution, and must be protected with the same vigor under which adult rights are protected. Robert H. Wood, The Failure Of Sexting Criminalization: A Plea For The Exercise Of Prosecutorial Restraint, 16 Mich. Telecomm. & Tech. L. Rev. 151, 167 (2009) [hereinafter Sexting Criminalization ] While the sexual privacy rights of minors may be limited, the presence and need to enforce these fundamentally sound rights must not be circumvented. Id. The awareness of the Court to protect minors sexual privacy in areas of abortion and contraception has never been scarce, and the same protection should be applied in cases where minors have engaged in consensual sexual behavior. Id. The State of California s Constitution expressly grants limited privacy rights to minors in the absence of sexual intercourse. In re T.A.J., 62 Cal.App.4th 1350, 1361 (1998). In T.A.J., a sixteen-year-old boy was accused of having sex with a fourteen-year-old girl and argued that he had a sexual privacy right under the California Constitution. The court held that no such right existed when actual sexual intercourse had taken place. Id.. However, minors have been offered 11

19 sexual privacy protection in the past, for example, the California Attorney General provided an opinion allowing doctors to report potential child abuse only when a minor under the age of fourteen is treated for a sexually transmitted disease. Minors over the age of fourteen on the other hand had to have additional factors present that pointed to child abuse for the doctor to report the treatment. The Attorney General reasoned that fourteen year olds lacked the ability to legally consent to sexual acts that may lead to sexually transmitted diseases. 67 Ops. Cal. Atty. Gen. 235, 235 (1984). The State of California s granting of sexual privacy rights to minors over the age of fourteen when treated for sexually transmitted diseases demonstrates a recognition by the state that children over the age of fourteen may be able to consent to certain sexual conduct. Because John Doe and Jane Coe did not engage in sexual intercourse, but only in sexual conduct, both of their sexual privacy rights should be recognized by this Court in accordance with the T.A.J. holding. R. 2. Although California has not expressly granted privacy rights for the type of conduct committed in this case, the history of the types of sexual privacy rights that have been granted to minors in the past suggests that this right should be recognized as well. In the case at bar, Jane Coe, at fifteen years old, meets the standard suggested by the Attorney General report and should therefore have a legally protected sexual privacy right. In addition, the court has protected minors rights in regards to abortion and contraception, and other sexual privacy matters that are equally as private, if not more private, than a minor choosing to take a nude photograph for her boyfriend. Sexting Criminialization, supra at 153. Minors have certain limited sexual privacy rights under California s Constitution, and it must only be proven that a reasonable expectation of that privacy exists to avoid state interference. T.A.J., 62 Cal.App.4th at Four elements must be proven when determining 12

20 whether a minor has a reasonable expectation of privacy that may be defeated by a legitimate state interest: (1) the minors are protected by the right of privacy for adults, (2) they are within the adolescent's competence, (3) they have serious and enduring consequences, and (4) they cannot be postponed to the age of legal majority. Id. Adults have enumerated sexual privacy rights, including sexual intercourse, thus the first prong of the In re T.A.J. prong is met. Under the second prong, regarding the competence of the minors, John Doe, who was honest with Jane Coe about his artistic intentions in taking the photograph, received Jane Coe s explicit consent and assistance when taking the pictures. R. 3. Undoubtedly, John Doe intended for the photographs to remain private from outsiders. While John Doe may have acted foolishly in his sending the photograph to Fred B., at the time the pictures were taken John Doe s intentions were to keep the photographs private. Jane Coe, was also fully competent and aware of her actions at the time the photographs were taken. R. 3. While Jane Coe did consent after John Doe commented that they would be the only people to view the pictures, that was not the motivating factor for Jane Coe posing for the pictures. Instead, it was John Doe s comment that the photographs would be a thoughtful birthday gift that led to Jane Coe s agreement to pose for the photographs. R. 3. Despite their ages, both John Doe and Jane Coe s maturity were exhibited by their interest in art and their choice to refrain from sexual intercourse. R. 2. Under the third prong, regarding serious and enduring consequences, John Doe took the picture with his cell phone camera, which automatically made the pictures easily accessible to other individuals, through either cell phone use or the readiness of Internet and text messaging usage. R. 3. However, Jane Coe s receipt of the photographs via John Doe s also made the pictures readily accessible on her cellular telephone and laptop computer as well. R. 3.While 13

21 John Doe may have sent the to Fred B., Jane Coe s privacy was already at risk based on the electronic transmissions that the photographs had traveled through prior to Fred B. even receiving the . Prosecuting minors under the statute puts them at risk for imprisonment of up to twenty years. The possible sentence under a conviction is an enduring and serious consequence, punishing what was a foolish act between two minors. While taking the photographs is risky, it does not justify government intrusion into the private decision of two consenting individuals. The fourth prong has not been met because the government could not reasonably regulate all sexual conduct between minors until the age of majority. Therefore, because the four prongs of the reasonable expectation test have been met, and John Doe and Jane Coe both have limited sexual privacy rights, the government should not intrude into their sexual privacy rights. C. The District Court s adoption of the per se approach was incorrect because it failed to consider under the jurisdictional element that John Doe s Internet use alone did not establish interstate commerce, and that the intended recipients resided in-state. Undisputed evidence of the actual transportation of child pornography across state lines is required under 18 U.S.C. 2252(A) to establish interstate commerce. Wright, 625 F.3d at 592. The per se approach, which assumed that the simple act of transmitting materials through the Internet was sufficient enough to inherently place the material in the stream of interstate commerce, is no longer sufficient. U.S. v. Carroll, 105 F.3d 740, 742 (1st Cir. 1997). Shifting from the older view of the First Circuit in Carroll, this Circuit held in its recent Wright decision that a defendant's mere connection to the Internet does not satisfy the jurisdictional requirement where there is undisputed evidence that the files in question never crossed state lines. Wright, 625 F.3d at

22 Images transported to another individual within the same state do not provide the undisputed evidence needed to establish the interstate commerce requirement of the statute. Id. at 594. In Wright, this Circuit refused to acknowledge that interstate commerce had occurred when the transmitted Internet materials had not only remained within the boundaries of the state, but the city as well. Id. While it has been held that the Internet is an instrumentality or channel of interstate commerce, the mere usage of the Internet alone does not imply that the user has transmitted materials over the state line. U.S. v. Sutcliffe, 505 F.3d 944, 953 (9th Cir. 2007). In Sutcliffe, the defendant sent threats to an Internet server located across state lines. The court reasoned that the defendant was guilty of interstate commerce only because the server upon which the threat was sent had crossed multiple state lines, but the defendant s use alone was insufficient for interstate commerce. Id. The Wright court, when discussing the Sutcliffe case and the meaning of the interstate requirement of 18 U.S.C. 2252A, rejected this reasoning by stating, the jurisdictional element is focused not on the means the defendant uses to mail, transport, or ship child pornography, and its connection to interstate commerce. Rather, it requires that the defendant mail, transport, or ship child pornography interstate. Wright, 625 F.3d at 594. Under the Wright standard, the case at bar demonstrates that John Doe s connection to the Internet alone was insufficient proof that the photographs had entered the stream of interstate commerce. Under the per se approach used in Carroll, John Doe s mere use of the Internet to send s to Jane Coe and Fred B. would have been enough to establish the interstate requirement of the statute. R. 3. However, the more recent Wright case is a stronger indicator of the times and the frequency with which individuals use the Internet, particularly through cell phones to third parties. Furthermore, because the s remained not only within the 15

23 State of California, but also in Orange County, California, the transmission fails to demonstrate that the images were actually transported over state lines. R. 3. Unlike the defendant in Sutcliffe, John Doe did not upload the photographs on a website located out of state. Rather, John Doe s e- mails were directly sent to Jane Coe immediately after they were taken and were not sent to Fred B. until days later. R. 3. According to this Circuit, knowledge that materials will be distributed over state lines is essential to a finding of interstate transmission under the statute. Id. at 597. In Wright, the defendant distributed images to another computer within the state of Arizona. The court recognized that the knowledge that the distribution was occurring in the same state weakened any claim that the images had traveled interstate. Id. at 595. While other Circuits have claimed that sending an to an individual in the same state through the Internet, may lead to further distribution, this is merely an assumption and does not meet the requisite level of knowledge required under the statute. A.H. v. State, 949 So.2d 234, 237 (Fla. Ct. App. 2008). While the server may have been located in another state, as noted in Wright, the jurisdictional element is not based on the means with which the was transmitted, but rather that the act was targeted to an out of state recipient. John Doe s actions were targeted directly at his girlfriend and a classmate who resided in his own county. R. 3. Although the A.H. court claims that the Internet transmissions may lead to further distributions of the photographs, the knowledge required under 18 U.S.C. 2252A does not exist. Because there was no interstate transportation that actually occurred, the required level of knowledge established by the Wright court has not been met. The only knowledge that existed in the present case was that the s were being transmitted to Jane Coe and Fred B., who are both in-state residents. R. 3. Therefore, because John Doe s Internet use alone is insufficient to establish interstate transmission, the 16

24 recipients of the s were intrastate, and his knowledge was limited to the actual transmission which occurred, thus the photographs never entered the stream of interstate commerce. II. JOHN DOE IS NOT REQUIRED TO REGISTER AS A SEX OFFENDER UNDER 42 U.S.C BECAUSE THE PLAIN MEANING OF SORNA APPLIES ONLY TO JUVENILES ADJUDICATED DELINQUENT FOR OFFENSES COMPARABLE TO OR MORE SEVERE THAN SEXUAL ASSAULT, THE PLAIN MEANING OF SORNA EXPLICITLY EXCLUDES CONSENSUAL CONDUCT BETWEEN MINORS, THE UNDERLYING CONDUCT WAS NOT A SPECIFIED OFFENSE AGAINST A MINOR, AND THE UNDERLYING CONDUCT IS NOT COMPARABLE TO OR MORE SEVERE THAN ANY OTHER ENUMERATED TIER II OFFENSE Congress enacted the Sex Offender Registration Act (hereinafter SORNA) in response to vicious attacks by violent predators against children who were kidnapped, abducted, sexually assaulted, and brutally murdered. 42 U.S.C (2006). SORNA creates a national registration system for those offenders who have committed heinous crimes against the children and imposes criminal penalties for failure to register. 42 U.S.C SORNA s registration requirements apply to both adults and juveniles who commit certain specified sex offenses, 42 U.S.C (8); U.S. v. Juvenile Male, 590 F.3d 924, 926 (9th Cir. 2010). However, SORNA s registration requirements do not apply to all juveniles. Rather, SORNA applies only to juveniles adjudicated delinquent of certain sexual offenses. 42 U.S.C (8). A. John Doe is not required to register as a sex offender under SORNA because the plain meaning of SORNA applies only to juveniles adjudicated delinquent for offenses comparable to or more severe than sexual assault. SORNA applies only to juvenile offenses comparable to, or more severe than, aggravated sexual assault. 42 U.S.C (8). Congress extended SORNA s juvenile registration requirement only to a portion of those offenders who were adjudicated delinquents, namely those who were 14 years of age or older at the time of the offense and the offense adjudicated was 17

25 comparable to or more severe than aggravated sexual abuse. 42 U.S.C (8). While John Doe was adjudicated delinquent at the time of the offense and was older than fourteen years of age, his offense was not comparable to, or more severe than aggravated sexual assault. 42 U.S.C (8). Rather, he was convicted under 18 U.S.C. 2252A, for transporting and distributing a visual depiction of an actual minor engaging in sexually explicit conduct. R. 5. SORNA s registration requirement is therefore inapplicable to John Doe because he was convicted under 18 U.S.C. 2252A, rather than 18 U.S.C (2007). John Doe s offense was not comparable to or more severe than aggravated sexual assault. B. John Doe is not required to register as a sex offender under SORNA because the plain meaning of SORNA explicitly excludes consensual conduct between minors In order to be classified as a Tier II sex offender under SORNA, John Doe first must be a sex offender. Under SORNA, a sex offender is someone who has been convicted of a sex offense (1). A sex offense includes a criminal offense that is a specified offense against a minor. 42 U.S.C (5)(A)(ii). The district court determined that the sex offense John Doe committed was a criminal offense that is a specified offense against a minor. 42 U.S.C (5)(A)(ii). The district court determined that John Doe committed a specified offense against a minor by possessing, producing, or distributing child pornography. 42 U.S.C (7)(G). The plain meaning of SORNA specifically excludes John Doe s underlying conduct from the definition of a sex offense. 42 U.S.C (5)(C). The plain meaning of the statute controls. Robinson v. U.S., 586 F.3d 683, 686 (9th Cir. 2008) To ascertain the plain meaning of a statute, the court must look to the language and design of the statute as a whole. Robinson, 586 F.3d at 686. Under the plain language of SORNA, an offense involving consensual conduct is not a sex offense for the purposes of this subchapter... if the victim was at least thirteen years 18

26 old and the offender was not more than four years older than the victim. 42 U.S.C (C). Thus, consensual conduct involving a victim older than thirteen years old and an offender not more than four years older than the victim is not a sex offense under SORNA. U.S. v. Juvenile Male, 590 F.3d at 927. SORNA, as plainly written, explicitly excludes John Doe s conduct. At the time the Clothed Maja and Nude Maja replicas were produced, Jane Coe was a fifteen-year old sophomore and John Doe was a seventeen-year-old high school senior. R. 2. Thus, the victim was at least thirteen years old and the offender was not more than four years older than the victim. Additionally, Jane Coe consented to have three photographs taken of her, with and without clothing, in order to replicate the two Goya masterpieces. R. 3. An offense involving consensual sexual conduct involving a child older than fourteen is not a sex offense within the plain meaning of SORNA. 42 U.S.C (5)(C). While SORNA, taken as a whole, expands the scope of offenses that meet the definition of a sex offense, the definition of a sex offense is limited by subsection 16911(5)(C), which applies to consensual acts between minors. U.S. v. Dodge, 597 F.3d 1347, 1352 (11th Cir. 2010). C. John Doe is not required to register as a sex offender under SORNA because the underlying conduct is not a specified offense against a minor The determination of whether an offense is a sex offense is interpreted in the context of the statute as a whole. Byun, 539 F.3d at 989. In passing SORNA, Congress left courts with broad discretion to determine what conduct constitutes a sex offense. Dodge, 597 F.3d at District judges do not need a statute to spell out every instance of conduct that is a sexual offense against a minor, but are capable of examining the underlying conduct of an offense and determining whether a defendant has engaged in conduct that, by its nature, is a sex offense against a minor. Id. While Congress stated purpose was to capture a wider range of conduct in 19

27 its definition of a sex offense, the language of SORNA discloses that in some situations, a sexual act might not be the prerequisite to a registerable sex offense. Id. (emphasis added). In determining whether an offense is a specified offense against a minor, it is the underlying conduct that matters, not merely the elements of the defendant s conviction. Byun, 539 F.3d at 992. While the interpretation of what constitutes a sex offense under SORNA is a question of first impression for many of the federal circuit courts, the Ninth Circuit has already established guidelines for determining whether an offense is a sex offense under SORNA. Id. at 986. In Byun, the defendant was convicted of importation of an alien for purposes of prostitution. Byun, 539 F.3d at 986. Defendant Byun plead guilty to three counts of alien smuggling, which did not include the victim s age as an element of the crime. Id. at 983. Even though Byun s offense did not contain the age of the victim as an element of her crime, the Ninth Circuit held that it could consider the fact that Byun s crime was committed against a minor, based on the underlying facts of the offense. Id. at 986. This Court s determination that Byun committed a specified offense against a minor, thus depended upon an examination of the underlying facts of her crime, which revealed that the victim was only seventeen years old. Id. at 990. Byun s offense was a specified offense against a minor even though her specific offense of which she was convicted was not enumerated under SORNA. The minor s age triggered the SORNA registration requirement because the Ninth Circuit considered the underlying conduct, not just the elements of her conviction statute. Id. at 987. The Eleventh Circuit adopted and expanded the Ninth Circuit s reasoning in holding that SORNA requires a non-categorical approach in determining whether a defendant committed a sex offense. Dodge, 597 F.3d at In Dodge, the defendant transmitted nude photographs of himself by way of a web-camera, in which he masturbated to a girl he believed to be thirteen 20

28 years old. Id. at However, the thirteen-year old girl was really an undercover agent posing as a minor on the Internet. Id. at Defendant Dodge was convicted of knowingly transferring obscene materials to a person less than sixteen years old. Id. Although Defendant Dodge s underlying conviction did not fall neatly under one of the enumerated offenses under a specified offense against a minor, his underlying conduct was similar to an enumerated offense, namely criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct. Id. at 1357; 42 U.S.C (7)(H). The Eleventh Circuit held that, [a]s a common sense matter, deceiving minors into viewing obscene pictures... is strikingly similar to criminal conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct. Dodge, 597 F.3d at Defendant Dodge s conviction for knowingly transferring obscene materials to a person less than sixteen years old was a sex offense for purposes of SORNA based on the defendant s actual conduct, which was similar to one of the offenses listed as a specified offense against a minor under SORNA. Id. at 1351 (emphasis added). The underlying facts of John Doe s conviction do not support the conclusion that this was a specified offense against a minor comparable to the production or distribution of child pornography under SORNA. John Doe did not sexually exploit a minor, nor did he take and distribute sexually explicit photographs for sexually deviant pleasure or profit. Rather, the underlying conduct of John Doe s conviction reveals that both John Doe and Jane Coe jointly participated in recreating two historically accurate and notable works of European art, the Clothed Maja and the Nude Maja. Furthermore, both minors were pleased with the artistic replicas. R. 3. The fact that a minor who consented having a nude photograph taken, but later regrets participation, is no justification for imposing harsh penalties that carry severe, 21

29 stigmatizing consequences. The underlying circumstances show that Jane Coe and John Doe freely chose on their own accord to produce clothed and nude photographs of Jane Coe, in an attempt to memorialize their consensual romantic relationship. D. John Doe is not required to register as a sex offender under SORNA because the underlying conduct is not comparable to or more severe than other enumerated Tier II offenses In determining whether a sex offense is a Tier II offense, the court must consider the defendant s actual conduct to see whether there is a strong similarity to one of the enumerated offenses under Tier II offenses. Byun, 539 F.3d at 988 (emphasis added). In Byun, the Ninth Circuit determined that Defendant Byun was required to register as a Tier II offender. Id. In reaching this determination, the Court held that Tier II offenses permit the court to consider not only elements of the defendant s underlying crime, but the defendant s actual conduct. Id, at 991 (emphasis added). Byun was required to register as a Tier II sex offender under SORNA because there was a strong similarity between her offense to at least one of the offenses enumerated in the list of Tier II offenses, namely the solicitation of a minor to practice prostitution. Id.at 988; 42 U.S.C (7)(C). In determining this, the Ninth Circuit used common sense. Byun, 539 F.3d at 988. A Tier II sex offender means a sex offender... whose offense is punishable by imprisonment for more than 1 year and... is comparable to or more severe than the following offenses, when committed against a minor... than production or distribution of child pornography (3)(A)(iii) (emphasis added). The comparable to or more severe language in Tier II provides the sentencing court with discretion in determining whether a defendant s offense is comparable to or more severe than the offenses enumerated under Tier II offenses. 42 U.S.C (A); Byun, 539 F.3d at 989. The Tier II sex offender category 22

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