ROBERT W. TIDWELL, PETITIONER V. UNITED STATES OF AMERICA

   No. 90-6569

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Sixth Circuit

   Brief For The United States In Opposition

                            OPINIONS BELOW

   The initial opinion of the court of appeals (Pet. App. A1-A2) and
its subsequent opinion following a remand by this Court (Pet. App.
E1-E7) are not reported.  The opinion of the district court (Pet. App.
B1-B23) is not reported.

                             JURISDICTION

   The judgment of the court of appeals was entered on November 6,
1990.  The petition for a writ of certiorari was filed on December 16,
1990.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTIONS PRESENTED

   1. Whether petitioner was subject to prosecution in the Western
District of Kentucky on an indictment charging that, in that district,
he had knowingly used minors to engage in sexually explicit conduct
for the purpose of producing child pornography.

   2. Whether Congress, in 18 U.S.C. 2251(a) and 18 U.S.C. 2252(a),
authorized separate convictions and punishments for (i) the production
of child pornography and (ii) the transportation, receipt, or
distribution in interstate commerce of the same pornography.

   3. Whether the Double Jeopardy Clause prohibited petitioner's
prosecution on a charge of using minors to engage in sexually explicit
conduct for the purpose for producing child pornography after he had
been convicted of other offenses in an earlier prosecution involving
the same pornography.

                               STATEMENT

   Upon his conditional guilty plea, petitioner was convicted in the
United States District Court for the Western District of Kentucky on
two counts of employing a minor child to engage in sexually explicit
conduct for the purpose of producing a visual depiction of that
conduct (which depiction was actually mailed), in violation of 18
U.S.C. 2251(a).  He was sentenced to a total of 118 months'
imprisonment.  The court of appeals affirmed.  Pet. App. A1-A2.
Petitioner filed a petition for a writ of certiorari seeking review of
the court of appeals' judgment.  This Court granted the petition,
vacated the judgment, and remanded for further consideration in light
of Grady v. Corbin, 110 S. Ct. 2084 (1990).  Pet. App. D.  The court
of appeals again affirmed the conviction.  Id. at E1-E7.

   1.a. Petitioner's principal contention is that this prosecution was
barred by his prior convictions in the Middle District of Tennessee on
related charges.  The offenses with which petitioner was charged in
the Kentucky and Tennessee indictments arose out of his involvement
with child pornography produced on two occasions:

   First, in July 1986, in Louisville, Kentucky, petitioner
participated with two others, Elessar Tetramariner and James Kaufman,
in taking photographs of an 11-year-old child.  The photographs
depicted the minor's genitals lasciviously.  Tetramariner took the
film to his home in Michigan.  From that location, he mailed developed
"proof sheets" containing the photographs and later three individual
photographs to petitioner in Nashville, Tennessee.  Pet. App. B2-B3;
id. at E2;  Gov't C.A. Br. 2.

   Second, on March 7, 1988, petitioner took lascivious photographs of
two five-year-old children in Edmonson County, Kentucky.  Afterwards,
petitioner transported the film from Kentucky to his home in
Nashville, Tennessee, and gave it to a Walgreens drug store for
developing.  Walgreens shipped the film to Indiana for development.
The Indiana developer then shipped prints made from the film back to
the Walgreens in Nashville, where petitioner picked them up.  Pet.
App. B2-B3;  id. at E2;  Gov't C.A. Br. 2.

   b. In April 1988, in the Middle District of Tennessee, petitioner
and Tetramariner were indicted on charges of receiving and
transporting child pornography in interstate commerce.  Petitioner
entered guilty pleas to the four counts in which he was named.  They
charged petitioner with violating 18 U.S.C. 2252(a)(1) and (2) by (i)
receiving in Tennessee the proof sheets that Tetramariner had mailed
from Michigan;  (ii) receiving in Tennessee the three photographs that
Tetramariner had mailed from Michigan;  (iii) transporting the film
containing the photographs of the two five-year-old children from
Kentucky to Tennessee;  and (iv) receiving in Tennessee prints
developed from that film and mailed from Indiana.  Pet. App. B3.
Petitioner was sentenced to a total of 13 years' imprisonment.

   c. In March 1989, in the Western District of Kentucky, petitioner
was indicted together with Kaufman and Tetramariner on charges of
using minors to make child pornography.  Petitioner was named in two
counts alleging violations of 18 U.S.C. 2251(a).  The first charged
that, in Jefferson County, Kentucky, he and Tetramariner used the
11-year-old child to engage in sexually explicit conduct for the
purpose of producing a visual depiction of that conduct and that the
depiction was actually mailed.  The second charged that, in Edmonson
County, Kentucky, petitioner used the two 5-year-old children to
engage in sexually explicit conduct for the purpose of producing a
visual depiction and that the depiction was actually mailed.  C.A.
App. 16-17.  The government advised the district court that, in
proving the jurisdictional basis for the offenses charged, it would
rely upon the same mailings that had been involved in petitioner's
Tennessee convictions.  See Pet. App. B4.

   Petitioner and Tetramariner filed pretrial motions to dismiss the
indictment.  The district court denied the motions, holding that the
Section 2251(a) offenses charged in this case were not the "same"
(within the meaning of the Double Jeopardy Clause) as the Section
2252(a) offenses of which those defendants had already been convicted.
 Pet. App. B1-B23.

   The court first determined that the offenses defined by Sections
2251(a) and 2252(a) each require proof of a fact that the other does
not, and thus are not the "same offense" under the test outlined in
Blockburger v. United States, 280 U.S. 299 (1932).  Pet. App. B7-B10.
Focusing on the elements of the offenses as defined by the statutes,
the court noted that Section 2251(a) requires proof that the defendant
participated in producing child pornography, while Section 2252(a)
does not, and that Section 2252(a) requires a showing that the
defendant mailed, transported, or received pornography, whereas
Section 2251(a) does not require that a defendant who has produced
pornography be involved in its transportation in interstate commerce.
Id. at B7-B10.  /1/ The court acknowledged that proof offered in the
prosecutions at issue would "substantially overlap," but found this
circumstance to be immaterial under Blockburger.  Id. at B10.  The
court explained that "it is not the proof actually offered, but the
proof required by the statutes in question that is determinative."
Ibid.  The court found that the legislative history of the statutes
also supported the conclusion that Sections 2251 and 2252 authorize
separate punishments for the production and transportation or receipt
of child pornography.  Id. at B11.

   The district court also concluded that the offenses of which
petitioner and his co-defendant had been convicted in Tennessee were
not lesser included offenses of the Section 2251 offenses with which
they were charged in this case.  Id. at B13-B15.  Referring to Ex
parte Nielson, 131 U.S. 176 (1889), the court explained that "(t)he
acts of transporting and mailing by these defendants, the offenses
charged in the first indictment, were not 'integral parts' of the
offenses charged in the second indictment()." Pet. App. B15.  The
court also found that the reasoning of Garrett v. United States, 471
U.S. 773 (1985), permitted successive prosecutions under the statutes
at issue.  Pet. App. B17-B19.

         The court concluded (Pet. App. B22):

         (U)nder no applicable analysis does the defendants' conduct
      constitute the "same offense" for purposes of double jeopardy,
      nor does the prosecution under this indictment violate
      principles of fairness or finality the Double Jeopardy Clause is
      intended to promote.

   Pursuant to Fed. R. Crim. P. 11(a)(2), petitioner entered
conditional guilty pleas, reserving his right to withdraw his pleas in
the event of a successful appeal from the denial of his double
jeopardy motion.  The district court sentenced petitioner to 118
months' imprisonment, to run concurrently with the term of
imprisonment imposed in the Tennessee case.

   2. The court of appeals affirmed in an unpublished per curiam
decision, adopting the district court's reasoning.  Pet. App. A1-A2.
Petitioner filed a petition for a writ of certiorari seeking further
review of the court of appeals' judgment.  This Court granted the
petition, vacated the court of appeals' judgment, and remanded for
further consideration in light of Grady v. Corbin, supra.  Pet. App.
D.

   3. The court of appeals again affirmed.  Pet. App. E1-E7.  The
court noted that, under Grady, "the Double Jeopardy Clause bars a
subsequent prosecution if, to establish an essential element of an
offense charged in that prosecution, the government will prove conduct
that constitutes an offense for which the defendant has already been
prosecuted." Id. at E4 (quoting 110 S. Ct. at 2087).  The court found,
however, that it was unnecessary for the government to rely on the
conduct constituting the offenses charged in the prior prosecution to
prove the offenses charged in this case.  The court explained (Pet.
App. E6-E7):

      In the prior convictions for the distribution offenses,
      (petitioner) was convicted of knowingly transporting and
      knowingly receiving visual depictions of a minor engaging in
      sexually explicit conduct.  In the later production offenses,
      the jurisdictional element which must be proved is that "such
      visual depiction has actually been transported in interstate or
      foreign commerce or mailed." The government can prove the
      jurisdictional element without reference to (petitioner's)
      conduct.  For example, the government could rely upon evidence
      that a drugstore received the second film in Tennessee, that it
      was shipped by the drugstore to Indiana and developed there, and
      that it was returned to the drugstore in Tennessee.  The
      government could also rely upon the conduct of Tetramariner who
      took the first film from Kentucky to Michigan to be developed
      and then mailed proofs and enlargements to Tennessee.  Neither
      requires proof of any conduct by (petitioner) and, therefore,
      would not prove the distribution offenses under section 2252.
      ARGUMENT

   The petition presents a variety of contentions, but they may fairly
be reduced to three essential arguments.  First, petitioner appears to
suggest that venue for offenses arising from a defendant's involvement
with a given batch of child pornography should be restricted to a
single district.  Second, he maintains that the Congress did not
intend to authorize separate convictions or punishments for the
offenses of producing and of transporting or receiving a particular
article of child pornography.  Third, petitioner contends that the
Double Jeopardy Clause prohibits successive prosecutions for those
offenses and that, in reaching the opposite conclusion following this
Court's remand, the court of appeals misapplied Grady v. Corbin,
supra.  None of these contentions warrants this Court's review.

   1. Under Fed. R. Crim. P. 18, venue is proper "in a district in
which the offense was committed." Section 3237(a) of Title 18 provides
that if an offense is "begun in one district and completed in another,
or committed in more than one district," it may be prosecuted "in any
district in which such offense was begun, continued, or completed." In
this case, petitioner was charged with two counts of using a minor to
produce child pornography, and the children involved were photographed
in the Western District of Kentucky.  Venue was therefore proper in
that district, since the offenses of using minors to create child
pornography began there.

   The substance of petitioner's venue contention appears to be that
the government should not have been allowed to prosecute him for
producing child pornography in a district other than the one in which
the government had indicted him for transporting and receiving the
same materials.  The validity of that contention depends on the law of
double jeopardy, not venue.  If (as we demonstrate) the Double
Jeopardy Clause permitted the prosecution of those offenses in
separate cases, nothing in Fed. R. Crim. P. 18 or the venue statute
would require that those cases be commenced in a single district.
This case thus presents no venue issue.

   2. As the district court noted, the facts underlying petitioner's
Tennessee and Kentucky convictions overlapped.  In Tennessee,
petitioner was convicted on three counts of receiving child
pornography that had been transported in interstate commerce by means
of the mails and one count of transporting pornography in interstate
commerce.  In this case, the indictment charged that petitioner had
participated in producing the pornography involved in the prior
prosecution and that the pornography had actually been transported
through the mails.

   The "first step in the double jeopardy analysis" of these facts "is
to determine whether the legislature -- in this case Congress --
intended that each violation be a separate offense." Garrett v. United
States, 471 U.S. at 778.  See Missouri v. Hunter, 459 U.S. 359, 366
(1983);  Albernaz v. United States, 450 U.S. 333, 337 (1981).  In
making that determination, the Blockburger test is "a useful canon of
statutory construction." Garrett v. United States, 471 U.S. at 779.
"Insofar as the question is one of legislative intent," however, "the
Blockburger presumption must of course yield to a plainly expressed *
* * view on the part of Congress." Ibid.

   As the district court held, both the relevant statutory materials
and the Blockburger test lead to the conclusion that Congress has
authorized separate convictions and punishments for violations of
Section 2251 and 2252.  The two offenses are set out in separate,
self-sufficient sections of Title 18, each of which prescribes its own
set of penalties.  Congress apparently determined that the production
of child pornography is an evil separate from its transportation and
receipt and that defendants who engage in both forms of misconduct
with respect to a given batch of pornography should be exposed to
separate conviction and punishment under each statutory provision.
/2/

   The Blockburger test leads to the same conclusion.  Section 2251
requires proof that the defendant used a minor for the purpose of
producing child pornography, but Section 2252 does not.  See United
States v. Esch, 832 F.2d 531, 542 (10th Cir. 1987), cert. denied, 485
U.S. 908 (1988).  A person can be convicted of transporting or
receiving pornography whether or not he played any role in producing
it.  Conversely, an offense under Section 2252 requires proof that the
defendant transported or received child pornography, while Section
2251 does not;  Section 2251 requires only (a) that the defendant knew
or had reason to know that the pornography would be transported in
interstate or foreign commerce or mailed or (b) that, with or without
the defendant's knowledge, the pornography actually was transported or
mailed.  Congress has authorized separate convictions and punishments
for the offense of producing child pornography and the offense of
transporting or receiving it.

   3. The remaining issue is whether the Double Jeopardy Clause
prohibits successive prosecutions for these offenses.  As we have
shown, those offenses do not qualify as a single offense for purposes
of the prohibition on double jeopardy under the Blockburger test,
since each of them requires proof of a statutory element that the
other does not.  The court of appeals was also correct in its
determination that Grady v. Corbin did not foreclose petitioner's
second prosecution.

   In Grady, the Court ruled that a prosecution for homicide and
assault arising from an automobile collision was barred by the
defendant's prior prosecutions for traffic offenses arising from the
same collision.  The Court noted that the second prosecution would not
have been foreclosed by the Blockburger test.  110 S. Ct. at 2093.
The Court held, however, in the context of the offenses at issue, that
"the Double Jeopardy Clause bars a subsequent prosecution if, to
establish an essential element of an offense charged in that
prosecution, the government will prove conduct that constitutes an
offense for which the defendant has already been prosecuted." Id. at
2087;  see id. at 2094.  Because a bill of particulars demonstrated
that the State would "prove the entirety of the conduct for which
Corbin was convicted -- driving while intoxicated and failing to keep
right of the median -- to establish essential elements of the homicide
and assault offenses," the Court concluded that the subsequent
prosecution was barred.  Id. at 2094.

   Grady is inapplicable here.  In the prior prosecution, petitioner
was convicted on three counts of receiving child pornography that had
travelled through the mails and one count of transporting film
containing pornographic photographs in interstate commerce.  The
government was not required to rely on the conduct "constitut(ing)"
those offenses (110 S. Ct. at 2087) or "the entirety of the conduct
for which (petitioner) was convicted" (id. at 2094) to prove the
offenses involved here.  Each of the two counts to which petitioner
pleaded guilty in this case charged (1) that petitioner had employed
minors to engage in sexually explicit conduct for the purpose of
producing child pornography and (2) that the pornography was "actually
* * * mailed." 18 U.S.C. 2251(a).  The first element involved conduct
that was not in issue in the prior prosecution, and the second -- as
the court of appeals noted, Pet. App. E6-E7 -- could be proved without
referring to conduct constituting the offenses of which petitioner had
already been convicted.  To prove that the pornography produced by
petitioner had actually been mailed, the government would not have had
to show that petitioner himself had received the pornography or
transported it.  /3/ Thus, even though offenses involved in the two
prosecutions involved proof that the pornography had travelled through
the mails, those prosecutions did not involve the "same offense"
within the meaning of the Double Jeopardy Clause as it was construed
in Grady.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   ROBERT S. MUELLER, III

      Assistant Attorney General

   THOMAS E. BOOTH

      Attorney

   JANUARY 1991

   /1/ Section 2251(a) imposes specified penalties upon:

      Any person who employs, uses, persuades, induces, entices, or
      coerces any minor to engage in, or who has a minor assist any
      other person to engage in, or who transports any minor in
      interstate or foreign commerce, or in any Territory or
      Possession of the United States, with the intent that such minor
      engage in any sexually explicit conduct for the purpose of
      producing any visual depiction of that conduct, * * * if such
      person knows or has reason to know that such visual depiction
      will be transported in interstate or foreign commerce or mailed,
      or if such visual depiction has actually been transported in
      interstate or foreign commerce or mailed.

   Section 2252(a) imposes specified penalties upon any person who:

         (1) knowingly transports or ships in interstate or foreign
      commerce by any means including by computer or mails, any visual
      depiction, if --

         (A) the producing of such visual depiction involves the use
      of a minor engaging in sexually explicit conduct;  and

         (B) such visual depiction is of such conduct;  or

         (2) knowingly receives, or distributes, any visual depiction
      that has been transported or shipped in interstate or foreign
      commerce by any means including by computer or mailed or
      knowingly reproduces any visual depiction for distribution in
      interstate or foreign commerce or through the mails, if --

         (A) the producing of such visual depiction involves the use
      of a minor engaging in sexually explicit conduct;  and

         (B) such visual depiction is of such conduct(.)

Sections 2251(a) and 2252(a) have been amended since the commencement
of the criminal activity involved in this case, but the amendments are
not material to this case.  The current version of the statutes is
quoted.

   /2/ Quoting an excerpt from a 1977 conference committee report,
petitioner contends that Congress meant to authorize only a single
punishment in a case in which a defendant violates Sections 2251 and
2252.  Pet. 15.  The quoted passage is only an explanation of the
resolution of a difference between penalty provisions in the House and
Senate bills;  it does not address the multiple punishment issue.  See
H.R. Conf. Rep. No. 811, 95th Cong., 1st Sess. (1977).

   /3/ Petitioner was convicted upon his guilty plea.  Therefore, for
purposes of the Double Jeopardy Clause, the issue is whether the
government could have proven the offenses charged in the indictment
without relying on conduct underlying petitioner's convictions in the
prior prosecution.  With respect to the count charging that petitioner
photographed the five-year-old children, a conviction could have been
based on either of two mailings.  The film was mailed from Walgreens
in Tennessee to a developer in Indiana, and the prints were mailed by
the developer back to Walgreens, where petitioner picked them up.  The
government could have established that the photographs had "actually
been * * * mailed" (18 U.S.C. 2251(a)) without referring to the fact
that petitioner had transported them across state lines before leaving
them at Walgreens and picked them up after they had been mailed to and
from Walgreens.  Likewise, evidence that Tetramariner put the proof
sheets and photographs of the 11 year-old in the mail would have
supplied a sufficient predicate for petitioner's conviction on the
count involving those materials.  It would not have been necessary to
show that petitioner received them.