United States v. X-Citement Video, Inc., United States of America v. Rubin Gottesman

Bad Law
92 Daily Journal DAR 16843·982 F.2d 1285·1992 U.S. App. LEXIS 32542·92 Cal. Daily Op. Serv. 10050
United States Court of Appeals for the Ninth CircuitDecember 16, 199289-50556, 89-50562California7,591 words

Opinion

Opinion

Canby, J.

Defendant Rubin Gottesman appeals his conviction, after a bench trial, for violating the Protection of Children Against Sexual Exploitation Act of 1977 (“Act”), 18 U.S.C. § 2251 et seq. (1988). Gottesman was convicted of violating sections 2252(a)(1) and (a)(2) of the Act, which prohibit the distribution, receipt, or shipping of child pornography. Gottesman challenges the Act as unconstitutional, both on its face and as applied. We conclude that the Act is unconstitutional on its face and, therefore, reverse.

FACTUAL BACKGROUND

In 1986 and 1987, an undercover police officer contacted Gottesman, the operator of X-Citement Video, Inc., and expressed interest in buying pornographic videotapes featuring one Traci Lords. The officer stated that he wanted tapes that Lords had made when she was under the age of 18. Gottesman eventually sold two sets of such tapes: the first was a box of 49 tapes that he sold directly to the police officer; the second was a box of 8 tapes that Gottesman sold to the police officer and sent (per the police officer’s instructions) to Hawaii.

A federal grand jury indicted Gottesman for distributing, shipping, and conspiring to distribute and ship child…

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