Minto Ozer Form (06197)

* United States District Court, Northern District of Minois
Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge John F. Grady than Assigned Judge
CASE NUMBER 03 CR 1032 DATE December 8, 2004
CASE United States v. Watzman
TITLE
[In the following box (s) indicate the party fiting the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
q@ o Filed motion of [ use listing in “Motion” box above.]
(2) o Brief in support of motion due
(é)) Oo Answer brief to motion due. . Reply to answer brief due
(4) im Ruling/Hearing on set for at
() Q Status hearing[held/continued to] (set for/re-set for] on set for at :
(6) Qa Pretrial conference[held/continued to] [set for/re-set for] on set for at -
M oOo Trial[set for/re-set for] on at
@ Oa [Bench/Jury trial] [Hearing] held/continued to at
(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}
OFRCP4(m) (CiGeneral Rule21 OFRCP41(aX1) O FRCP41(aX(2).
ao [Other docket entry] See attached order. Regarding the Johnson case, defendant may file a memorandum
by December 29, 2004, and the government may reply by January 12, 2005. ENTER ORDER.
ayn x [For further detail see order (on reverse side of/attached to) the original minute order.]
No notices required, advised in open court. "Document ..
] No notices required. “emoe ofc _ Number,
X | Notices faxed by judge's staff 005
Notified counsel by telephone. 832
~T Docketing to mail notices. \
~} Mail AO 450 form, tn a
| copy to Lend
date notice
KAM deus G9 x Nd C- WEP SON
initials Datehtime received in: | -]
central Clerk:s Office’_** sailing dep\y iin

(Reserved for use by the Court)



03-1032.004 December 8, 2004

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

Plaintiff,

No. 03 CR 1032

OC
Hy MeN

2 2095

Vv.

H. MARC WATZMAN,

Defendant.

ORDE:

At the Daubert hearing of December 7, 2004, there was a
colloquy between the court and counsel concerning the question of
whether the defendant could be found guilty of an attempt to
receive or possess child pornography even if the government is
unable to prove that the still photos were photos of real children.
Government counsel cited the case of United States v. Raney, 342

F.3d 551 (7 Cir. 2003), but our research indicates that the case

counsel probably had in mind is United States v. Johnson, 376 F.3d
689, 693-94 (7 Cir. 2004). That case deals with the question of
impossibility in terms of the defendant’s intent; if he acts with
the intent to commit the crime, and does not know that it is
impossible (because the “minor” he is soliciting is actually an
adult), that is sufficient to constitute an attempt. The Court’s
opinion does not discuss the fact of impossibility as it may relate

to the other element of an attempt, “a substantial step toward the


2
a

-2-

commission of that crime,” id. at 693. The Court of Appeals
apparently regards this element as satisfied by an act done with
the necessary intent. In any event, Johnson is the law of the
Circuit, and it appears to support the government’s contention 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. If defendant disagrees, and believes that
Johnson is distinguishable from this case, he may file a memorandum
by December 29, 2004, and the government may reply by January 12,
2005.

DATED: December 8, 2004

Jo. . Grady, United States Distyict Judge