proper Guideline handling follows from the identity of Malik's
Count One conduct to that targeted by Section 2252A(a) (5) (B) .?
This supplement accordingly buttresses what was said in the

Memorandum. That reinforcement reconfirms this Court's

resolution of the matter as set out there.

Cllr. OF, ter

Milton I. Shadur
Senior United States District Judge

Date: July 10, 2003

2 Page 8 of the government's memorandum, which argues for
the possibility of the knowing possession of child pornography
without ever having received it, is extraordinarily strained.

Its improbable examples scarcely account rationally for a
congressional determination that offenses in the mere possession
category should carry a maximum possible sentence of five years,
while the Section 2252A(a) (2) (A) offenses carry the potential for
a 15-year sentence.


of lenity, United States v. Lange, 312 F.3d 263, 266
(7" Cir. 2002), this maxim must of course yield to the
paramount consideration--to follow congressional
intent. Here, our best evidence of congressional
intent is the legislative history....

That might well have been written for this case. As the
Memorandum has indicated, “receives” in Section 2252A(a) (2) is
ambiguous: It has the potential for being read in the sweeping
fashion urged by the United States, but it also has the potential
for being read (like the other term “distributes” with which it
is coupled) as targeting conduct that involves trafficking in
child pornography (rather than receipt for mere possession). And
if congressional intent is indeed “the paramount consideration”
in resolving such matters, as Jefferson says, again the best
evidence is found in the legislative history--and the memorandum
has spelled out in detail why that legislative history flatly
negates the breadth of the statutory application to Malik's
criminal conduct that is urged by the government.

What the government's submission plainly confirms is that no
reported decision has ever troubled itself to learn, as this
Court has, just how Section 2252A(a) (2) (A) came to use the term
“receives” simpliciter. It is backward reasoning for the United
States to point to the Sentencing Guidelines as somehow
overriding the congressional purpose in enacting the statute in
its present form. Instead, once the puzzle is unlocked by

discovery of the reason that the statute reads as it does, the


‘Minute Order Form (06/97)

United States District Court, Northern District of Illinois

i i Sitting Judge if Oth
wirge Magistrate Judge Milton 1. Shadur ihan Assigned Judge
CASE NUMBER 02 CR 972 DATE 7/10/2003
CASE USA vs. David Malik
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented. ]

MOTION:

DOCKET ENTRY:

(d) gq Filed motion of [ use listing in “Motion” box above.]

(2) o Brief in support of motion due

@) o Answer brief to motion due___. Reply to answer briefdue_____

(4) o Ruling/Hearingon_— set for_—at

(5) Qo Status hearing[held/continued to] [set for/re-set for]on____——sset for at

(6) oO Pretrial conference[held/continued to] [set for/re-set for]on___set for at.
(op) Oo Trial[set for/re-set for] on at

(8) oO [Bench/Jury trial] [Hearing] held/continuedto_— at

(9) im This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

COFRCP4(m) CLocal Rule 41.1 CFRCP41(a\(1) C1 ERCP41(a)(2).

(a0) =o {Other docket entry] Enter Supplement to Memorandum. This Supplement accordingly buttresses
what was said in the Memorandum. That reinforcement reconfirms this Court’s resolution of the matter
as set out there.

al [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.

o | Notices mailed by judge’s staff.

Notified counsel by telephone

Docketing to mail notices.

Mai] AO 450 form.

Copy to judge/magistrate judge.

courtroom:

SN deputy’s
initials



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA,
Plaintiff,

v. No. 02 CR 972 2

~

2 GR

. By
a a
4@
o

DAVID MALIK,

Defendant .

SUPPLEMENT TO MEMORANDUM

After the commencement of the sentencing hearing in this
case, on June 27, 2003 this Court deferred the completion of the
hearing to today's date to permit counsel and this Court to
explore the troublesome problem created by the interaction of two
sections of the Criminal Code and two provisions of the
Sentencing Guidelines under the circumstances posed by the two-
count indictment against David Malik (“Malik”). Although at that
time this Court directed the parties' counsel to provide
submissions as to the legislative history of 18 U.S.C.
§2252A(a) (2) (A)* (and perhaps of Section 2252A(a) (5) (B) as well),
this Court just as promptly looked into the matter itself--and
having done so, it swiftly issued its July 1 memorandum
(“Memorandum”) to reflect the results of its own search and thus
to focus the parties' submissions more sharply on the matter.

It appears that the issuance of the Memorandum may have

* All further references to Title 18's provisions will

simply take the form “Section--.”



discommoded the Assistant United States Attorney assigned to the
case somewhat, because he had in turn substantially completed his
own work (although his submission was not due until July 7)
before receiving the Memorandum. Although this Court regrets any
added work that may have been occasioned in that respect, the
issuance of the Memorandum was far more constructive toward the
ultimate goal of imposing a legally sound sentence than if
government counsel had first submitted his own memorandum, only
to be confronted with the product of this Court's own review on
the ultimate sentencing date. Indeed, on July 3 government
counsel filed a motion for reconsideration that both reflected
his own research and sought to respond to what this Court had
said in the Memorandum.

In any event, this supplemental memorandum is intended to
reflect one of the instances of serendipity that arise with
surprising frequency in the course of a District Judge's work.
This Court has just received the current batch of slip opinions
from our Court of Appeals that are delivered to chambers on a
weekly basis, and one of those opinions bears directly on the
issues addressed in the Memorandum in a way that impacts on
Malik's sentence. Here is the highly relevant excerpt from

United States v. Jefferson, No. 02-3506, 2003 WL 21507733, at *4

(7" Cir. duly 2):

Although we must keep in mind that ambiguity in
criminal statutes should generally be resolved in favor