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Transporting Child Pornography — scienter

United States Court of Appeals For the Seventh Circuit


Transporting Child Pornography — scienter

It is not a defense to a charge of transporting child pornography under 18 U.S.C. 2252A(a)(1) that the defendant did not know the activity was illegal.

“Dean invokes Morissette v. United States, 342 U.S. 246 (1952), and Liparota v. United States, 471 U.S. 419 (1985). Neither authority supports his incorrect understanding of the criminal state of mind requirement. Although Morissette extols the benefits of requiring guilty mind as a prerequisite for criminal sanction, it also recognized that Congress has used the word ‘knowing’—the same word in § 2252A(a)—to describe such a guilty state of mind. Morissette, 342 U.S. at 252-62, 264. For that reason, Morissette does not support Dean’s argument. Rather, it recognizes only that when Congress codifies a common law crime in statute without specifying a particular mens rea in the statutory text, the common law mens rea remains an element of the crime. Id. at 272-73. In Dean’s case, Morissette does not apply: Congress explicitly identified the required state of mind in the text of the statute—knowledge. See XCitement Video, 513 U.S. at 78. Likewise, Liparota provides Dean no refuge. That case involved conviction under a statute criminalizing ‘knowingly us[ing], transfer[ing], acquir[ing], alter[ing], or possess[ing] [food stamps] in any manner not authorized by [the statute] or the regulations.’ 471 U.S. at 420. The Liparota Court concluded that, in this statute, ‘knowingly’ required knowledge that the use, transfer, etc. of the food stamps was unlawful. Id. at 433-34. Unlike the statute in Liparota, which explicitly included unlawfulness as an element of crime, the statute Dean violated does not. Thus, Liparota offers no support for a reading of § 2252A(a) that would require knowledge of unlawfulness.”


12-1539 U.S. v. Dean

Appeal from the United States District Court for the Northern District of Illinois, Kennelly, J., Flaum, J.

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