with a camera only then to discover that the minor was in fact a female police officer. Id. at 691.
Comparing these facts to a 1994 case upholding the conviction of defendants who plotted to kill
an informant who tumed out not to exist, * Judge Manion reiterated the long standing rule that
“futile attempts because of factual impossibility are attempts still the same.” Johnson, at 694.

In that Johnson was decided on the basis of factual rather than legal impossibility, it is
important to attempt to comprehend the admittedly elusive differences between factual and legal
impossibility. Factual impossibility occurs when the objective of the defendant is proscribed by
criminal law, but a circumstance unknown to the actor prevents him from bringing about the
objective. United States v. Oviedo, 525 F.2d 881, 883 (3d Cir. 1976). See also United States v.
Berrigan, 482 F.2d 171, 187-88 (3d Cir. 1973) and United States v. Frazier, 560 F.2d 884, 888
(8th Cir. 1977). Caselaw examples of factual impossibility include, among others: where a
pickpocket finds the prospective robbery victim’s pocket is empty, People v. Fiegelman, 91 P.2d
156 (Cal. App. 4th dist. 1939); where a shooter attempts to kill a person and shoots in an area
where the intended victim is not located, People v. Lee Kong, 30 P. 800 (Cal. 1892); where a
person attempts to shoot another, but the gun is not loaded, State v. Damms, 100 N.W.2d 592
(Wis. 1960); where an impotent person attempts rape, Waters v. State, 234 A.2d 147 (MD. App.
1967). In the Seventh Circuit, as in most places, factual impossibility is not a defense to the
charge of attempt. United States v. Coffman, 94 F.3d 330 (7th Circuit 1996), United States v.

Green, 511 F.2d 1062 (7th Cir. 1975).

3 United States v. Cotts, 14 F.3d 300, 307 (7th Cir. 1994).

4 See, Footnote 2, supra.



in the business of torturing law students, at least this part of the message is clear: “If none of the
consequences which the defendant sought to achieve constitutes a crime, surely his unsuccessful
efforts to achieve his object cannot constitute a criminal attempt. The partial fulfillment of an
objective not criminal cannot itself be criminal. If the whole is not criminal the part cannot be.”
Francis B. Sayre, Criminal Attempts, 41 Harv. L.Rev. 821, 839 (1928).

Thus it seems to counsel that if the government cannot prove that the still images in
question are of real children, it matters little what Watzman may have wanted to accomplish.
Either the images are of real children or they are not. If they are not, the images simply cannot be
said to constitute a violation of 18 U.S.C. 2252A(a)(5)(B) and (b){2). See Richardson v. United
States, 379 F.3d 485, 488 (7" Cir. August 16, 2004) (“{The] receipt of virtual child pomography
is not illegal, citing Ashcroft, supra..”) This is particularly poignant with respect to the First
Amendment implications the Supreme Court warmed of in Ashcroft; i.e., “[t]he government
cannot constitutionally premise legislation on the desirability of controlling a person’s . . .
thoughts.” 535 U.S. at 254, citing Stanley v. Georgia, 394 U.S. 557, 566 (1969).

Counsel suggest, therefore, that the Court’s instincts at the Daubert hearing were correct.
Notwithstanding Johnson, Raney, or any other creative approach the government uses to attempt
to avoid the constitutional ambit of Aschroft, obviating the need to prove that the still images are
of actual children would no doubt tum Aschcrof? on its head. Thus, counsel would continue to
insist, as set forth in Defendant’s previously filed Motion Jn Limine, that the government be
barred from presenting into evidence any still image that has not been authenticated as the image

of an actual child.


Johnson is a July 2004 Seventh Circuit opinion authored by Judge Manion where the
Court acknowledged at the outset that the Defendant-Appellant’s position was “somewhat
confusing and difficult to follow.” 376 F.3d at 693, footnote 5. The opinion then went on to pose
the issues in the form of questions that appear at first glance to be on all fours to the issue at
hand.'! However, a more detailed factual analysis of Johnson along the mind numbing legal
analysis of the law of attempt and its relationship between factual and legal impossibility,” leads
to a different conclusion.

In Johnson, the defendant was convicted of the charge of attempt to produce (not possess)
child pornography in violation of 18 U.S.C. §§ 2251(a) and (d), in a police sting operation where
an undercover officer posed as a minor — a classic example of “factual” impossibility. Johnson
performed every action possible to commit the offense of producing child pornography including
internet communications with the supposed minor in which he expressed a desire to videotape

her while they were having sex, and going so far as arriving at a pre-arranged location armed.

1 Johnson's Footnote 5 which poses the questions reads in its entirety as follows:
“Johnson’s argument concerning the indictment language is somewhat confusing and difficult to
follow. We consider Johnson’s argument, therefore, in two parts. We discuss first whether, under
the law of attempt, a defendant can be convicted of an attempt to manufacture child pomography
where commission of the completed offense would be impossible because the intended performer
was not a minor. If the answer to this question is yes, the language at issue in the indictment would
be permissible. We also address, in the context of the constitutionality of § 2251, whether the First
Amendment prohibits the criminalization of an attempt to manufacture child pornography where
there is no minor performer but only an adult posing as a minor. If the answer to this question is
yes, Johnson's actions would not be subject to prosecution regardless of the language of the
indictment.”

2 See, e.g., Berrigan, 482 F.2d at 187 (explaining , “indeed, even a decision to analyze impossibility on the
basis of what is generally described as the two categories of factual impossibility and legal impossibility presents
serious problems unless conceptual distinctions between the two labels are recognized and respected.”); United
States v. Farner, 251 F.3d 510, 512 (Sth Cir. 2001) (explaining, “the distinction between factual and legal
impossibility is elusive at best.”) citing United States v. Everett, 700 F.2d 900, 905 (3d Cir. 1983) (stating “the
doctrine has become a source of utter frustration and a morass of confusion.”); and United States v. Kai-Lo, 982
F.Supp 1022 (E.D. Pa. 1997) (stating “the defendant’s argument raises the intricate distinction between the defenses
of factual and legal impossibility.”).


However, legal impossibility as opposed to factual impossibility is, and always has been,
a defense to the charge of attempt; and it is this distinction that separates Watzman’s case from
Johnson. As Judge Posner stated as recently as 1996 in Coffman, supra, “[i)f the [attempt] could
not succeed because the completed act at which the defendant aimed is not criminal . . . then a
defense of impossibility will lie; it is not a criminal attempt to try to do what the criminal law
does not forbid you to do.” Coffman, 94 F. 3d at 333. Paraphrasing this concept for our purposes
then, the defense of impossibility lies for Watzman since, assuming no proof of “actual” minors,
it is not a criminal attempt to try to possess or receive images of “virtual” minors.

Caselaw examples of legal impossibility include the following: where the defendant
believes that he is receiving stolen property, receives it, but the property is not in fact stolen,
People v. Jaffe, 78 N.E. 169 (N.Y. App. Div. 1906); when a person intends to shoot a deer
illegally, but the deer turns out to be stuffed, State v. Guffey, 262 S.W.2d 152 (Mo. App. 1953);
where the defendant intends to bribe a juror who is not really a juror, State v. Taylor, 133 S.W.
2d 336 (Mo. App. 2d Div. 1939); and where the defendant has intercourse with someone who he
believes is unconscious but tums out instead that she is dead, United States v. Thomas, 32
C.M.R. 278 (Armed Forces App. 1962). In all of these albeit ridiculous and somewhat far
fetched examples, the defendants believed that they were committing crimes. However, their
actions, regardless of their intent, could not be said to be criminal.

Like it or not, therefore, even if a defendant has the “motive, desire, and expectation” to
commit a crime, “there is intention to perform a physical act,” and “there is a performance of the
intended physical act,” if the consequences from the act do not constitute a crime, a person

cannot be convicted. United States v. Berrigan, 482 F. 2d 171, 188 (3d Cir. 1973); See e.g.


Resp ly submit ¢

THOMAS ANTHO! URKIN,

Defendant.

DURKIN & ROBERTS

53 West Jackson Boulevard, Suite 615
Chicago, Ilinois 60604

(312) 913-9300


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

EASTERN DIVISION y) My, _
UNITED STATES OF AMERICA ) “ey con ~
) ‘Oo
‘Plaintiff, ) 1 Fy
- ) A Cos
ry. } No. 03 CR 1032
) Judge John F. Grady
H. MARC WATZMAN, )
) wwe
Defendant. ) 4
NOTICE OF FILE D
To: By Hand Delivery x
Virginia M. Kendall DEC 3 6 2004 oS
Monika L. Bickert MICHAEL w.
Assistant United States Attomeys CLERK, Um. oimTmct COURT
219 South Dearborn Street, 5® Floor

Chicago, Illinois 60604

PLEASE TAKE NOTICE, that on this 30" day of December, 2004, the undersigned

filed or caused to be filed with the Clerk of the District Court for the Northern District of Llinois,

at Chicago, Illinois, the following Defendant’s Memorandum of Law in Response to the Court’s

December 8, 2004 Order, a copy of which is hereby served upon you.

DURKIN & ROBERTS

53 West Jackson Boulevard, Suite 615
Chicago, Illinois 60604

(312) 913-9300

()


United States v. Frazier, 560 F. 2d 884, 888 (8th Cir. 1977) (holding “legal impossibility refers
to those situations in which the intended acts, even if successfully carried out, would not amount
to acrime, and this is true even though the defendant believes his scheme to be criminal.”); and
United States v. Karaouni, 379 F. 3d 1139, 1145 (9th Cir. 2004) (holding “[a] defendant may not
be convicted . . . [for a] crime, when the actions that he believed to be unlawful, did not, in fact,
violate any statute.”). The same legal principle is clearly enunciated in Wharton's well respected
treatise on criminal law stating, “it is fundamental that the conduct which is not penally
prohibited does not become criminal simply because the actor believed his conduct constituted a
crime.” Charles E. Torcia, 1 Wharton's Criminal Law § 79 (15th ed., 1993).
Finally, and interestingly enough, the same principle is also set forth in a 1928 Harvard

Law Review article relied upon by the Seventh Circuit in Cotts, supra, which, in turn, plays a

, prominent role in the Johnson opinion. See Johnson, supra, at 376 F.3d 693. While articles as

dense as this might be as much of the problem as the solution, and serve to keep law professors

5 See also the Tather well quoted hypothetical put first by Wharton and then modified by Professors Kadish
and Paulsen, set forth in an article authored by Paul H. Robinson, Professor of Law at Rutgers University School of
Law:

“Lady Eldon intends to purchase French lace and smuggle it back into England without paying the
customs duty. The customs officer at Dover brings it to light. He then says to Lady Eldon: ‘Lucky
for you you retumed to England today rather than yesterday. I just received word this morning that
the government has removed French lace from the duty list.”

To punish Lady Eldon for an attempt would be to punish her for an attempt to consummate an act
that, even under the circumstances as she believed them to be, was not in fact a crime. Such
liability would be in violation of the legality principal. As Professor Williams explains:

[I]f the legislature has not seen fit to prohibit the consummated act, a mere approach to
consummation should a fortiori be guiltless, Any other view would offend against the
principle of legality; in effect the law of attempt would be used to manufacture a new
crime, when the legislature has left the situation outside the ambit of the law.” Criminal
Law Defenses; Ch. 3, §85, Inchoate Offenses and Complicity ~ Impossibility Defense;
Westlaw (Treatise) 1 Crim. L. Def. §85, p.4 (emphasis added).

5


CERTIFICATE OF SERVICE
CLARKE P. DEVEREUX, attorney at law, hereby certifies that on December 30, 2004,
he served, or caused to be served, the foregoing pleading on the following attorney of record by
hand delivery:
Virginia M. Kendall
Monika L. Bickert
Assistant United States Attorneys

219 South Dearborn Street, 5“ Floor
Chicago, Illinois 60604



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

EASTERN DIVISION
UNITED STATES OF AMERICA )
)
Plaintiff, )
)
v. ) _No.03CR 1032
) Judge Join F.Grady FILE D
H. MARC WATZMAN, )
) DEC 3 0 2004
Defendant. )

MICHAEL W. DOBBINS
DEFENDANT’S MEMORANDUM OF LAW IN respon’ } nerSt
T ‘ol °S DECEMBE: 2004 ORDER
Following colloquy at the Daubert hearing concerning the question of whether the
defendant could be found guilty of an attempt to receive or possess child pormography even if the
government is unable to prove that the still photos were photos of real children, on December 8,
2004 the Court, sua sponte, issued its order discussing the Seventh Circuit’s opinion in United
States v. Johnson, 376 F. 3d 689 (7th Cir. 2004). The Court concluded that Johnson appeared to
be the law of the Circuit which, therefore, would support the government’s contention at the
Daubert hearing that its proposed evidence in regard to the still photos would be sufficient to
establish an attempt even without evidence that real children were used. The Court directed
counsel to file a memorandum if they believe that Johnson is distinguishable from this case.
This memorandum necessarily follows in that counsel are of the firm opinion that Johnson is
readily distinguishable; and that to permit the government to prove an attempt to possess or
receive child pornography without proof beyond a reasonable doubt that the images were of real
children would eviscerate the Supreme Court’s opinion in Ashcroft v. Free Speech Coalition, 535

U.S. 243, 122 S.Ct. 1389 (2002), and, therefore, violate the First Amendment.

Gb