                            UNITED STATES COURT OF APPEALS

                                    FOR THE SECOND CIRCUIT

                                          August Term, 2003

(Argued: May 12, 2004                                            Decided: December 3, 2004
                                                                 Errata Filed: January 6, 2005)
                                          Docket No. 03-1457

UNITED STATES OF AMERICA,

                        Appellee,

                v.

JORGE L. PABON-CRUZ,

                        Defendant-Appellant.


BEFORE : MESKILL, LEVAL, AND CABRANES, Circuit Judges

        Jorge L. Pabon-Cruz appeals from a judgment of conviction entered on August 11, 2003, in

the United States District Court for the Southern District of New York (Gerard E. Lynch, Judge),

adjudging him guilty of, inter alia, advertising to distribute or receive child pornography in violation

of 18 U.S.C. § 2251(c)(1)(A) and sentencing him principally to 120 months’ imprisonment. On

appeal, Pabon-Cruz challenges (1) our Court’s decision, by writ of mandamus, to prevent the

District Court from informing the jury of the ten-year mandatory minimum sentence attached to the

advertising offense; (2) the District Court’s instructions to the jury regarding the elements of the

advertising offense; and (3) the constitutionality, under the Eighth Amendment’s prohibition of

cruel and unusual punishment, of that mandatory minimum sentence.

        The finding of guilt is affirmed, the sentence is vacated, and the cause is remanded for

resentencing.

                                COLLEEN P. CASSIDY, The Legal Aid Society, Federal Defender

                                                    1
                                               Division, Appeals Bureau, New York, NY, for Defendant-
                                               Appellant.

                                     ALEXANDER H. SOUTHWELL , Assistant United States Attorney
                                          (Celeste L. Koeleveld, Assistant United States Attorney, of
                                          counsel; David N. Kelley, United States Attorney, on the brief),
                                          United States Attorney’s Office for the Southern District of
                                          New York, New York, NY, for Appellee.

JOSÉ A. CABRANES, Circuit Judge:

         This case, before our Court for the second time, involves an eighteen-year-old man who has

been sentenced to ten years in prison following conviction on a charge of advertising to distribute or

receive images of child pornography, and a charge of receiving or distributing child pornography.

Previously, in the midst of trial, the Government filed a petition for a writ of mandamus asking us to

prohibit the United States District Court for the Southern District of New York (Gerard E. Lynch,

Judge) from informing the jury about the mandatory ten-year sentence that would be imposed on

defendant if he were convicted of the advertising offense; the statute prohibiting distribution

required no such minimum sentence. Two days later, after staying proceedings in the District Court,

a panel of this Court issued the writ of mandamus requested by the Government in a brief summary

order. After the writ was issued, and the District Court delivered its instructions, the jury convicted

defendant of the advertising offense and of distributing child pornography by computer.

         On appeal from the final judgment of conviction, defendant challenges (1) our Court’s prior

decision to prevent the District Court from informing the jury of the mandatory minimum sentence

attached to the advertising count; (2) the District Court’s instructions to the jury regarding the

elements of the advertising offense; and (3) the constitutionality under the Eighth Amendment of

the statute requiring the imposition of a mandatory minimum sentence.1 Though the issue was not


         1
           The E ighth Am endm ent to the Constitution provide s in relevant part that “cruel and u nusual pun ishments”
shall not be inflicted. U .S. Const. amend. VIII.

                                                            2
raised by counsel, nor addressed by the District Court, we consider nostra sponte whether the statutory

penalty provision of 18 U.S.C. § 2251(d) mandates a minimum ten-year term of imprisonment. For

the reasons stated below, we affirm the finding of guilt, but vacate the sentence and remand for

resentencing.



                                                      BACKGROUND

        Jorge L. Pabon-Cruz, who had just turned 18 at the time of the conduct at issue, was

charged with and convicted of both advertising and distributing child pornography over the

Internet. Pabon-Cruz is a first-time offender. He had been living with his mentally disabled mother

and studying computer science as a scholarship student at the University of Puerto Rico, and the

District Court found that he had not been involved in the creation of any child pornography. Count

One of the indictment charged Pabon-Cruz with violating 18 U.S.C. § 2251(c)(1)(A), which applies

to any person who “knowingly makes, prints, or publishes, or causes to be made, printed, or

published, any notice or advertisement seeking or offering . . . to receive, exchange, buy, produce,

display, distribute, or reproduce, any visual depiction, if the production of such visual depiction

involves the use of a minor engaging in sexually explicit conduct and such visual depiction is of such

conduct.” 18 U.S.C. § 2251(c)(1)(A) (2000).2 At the time of Pabon-Cruz’s conduct, that advertising


        2
            At the tim e of P abon-C ruz’s conduct, 18 U.S.C. § 2251(c) provid ed in full:

        (1) Any person who, in a circum stance described in paragraph (2), know ingly make s, prints,
        or publishes, or causes to be made, printed, or published, any notice or advertisement
        seeking or offering—

                    (A) to receive, exchange, buy, produce, display, distribute, or reproduce, any visual depiction,
                    if the productio n of such visual depiction involves the u se of a minor engaging in sexually
                    explicit conduct and such visual depiction is of such conduct; or
                    (B) participation in any act of sexually explicit conduct by or with any m inor
                    for the purpose of pro ducing a visual depiction of such conduct;
                    shall be punished as provide d under su bsection (d).

        (2) The circum stance referre d to in paragrap h (1) is that—
                                                               3
offense was understood to carry a ten-year mandatory minimum prison sentence. Id. § 2251(d).3

         Count Two of the indictment charged Pabon-Cruz with violating 18 U.S.C.

§ 2252A(a)(2)(B), which applies to any person who “knowingly receives or distributes . . . any

material that contains child pornography that has been mailed, or shipped or transported in

interstate or foreign commerce by any means, including by computer.” 18 U.S.C. § 2252A(a)(2)(B)

(2000). That offense, unlike the advertising offense, carried no mandatory minimum sentence when

Pabon-Cruz engaged in the conduct at issue.4 See id. § 2252A(b).

          Before trial, the Government moved to preclude any mention of the ten-year mandatory

minimum sentence that applied to the advertising offense and asked the District Court to instruct

the jurors that sentencing was not their concern.5 Defense counsel, in turn, asked the Court to

inform the jury that the advertising count was the more serious of the two counts charged in the

indictment and that it carried a ten-year mandatory minimum. Defense counsel expressed concern



                   (A) such person knows or has reason to know that such notice or advertisement
                   will be transported in interstate or foreign commerce by any means including by
                   computer or mailed; or
                   (B) such notice or advertisement is transported in interstate or foreign
                   commerce by any means including by computer or mailed.

18 U .S.C. § 2251(c) (20 00). Under legislation passed tw o years after Pabon-Cru z’s cond uct, this langu age w as moved to
18 U.S.C. § 2251(d), in which subsection (1) has been altered to state that violators “shall be punished as provided under
subsection (e) [the penalty provision originally in subsection (d)].” Prosecutorial Remedies and Other Tools to End the
Exploitation of Ch ildren Today A ct of 2 003 (“PR OTE CT Act”), Pu b. L. N o. 108-21, § 50 6, 117 Stat. 650, 683 (2003).

         3
           At the time of Pabon-Cruz’s conduct, 18 U.S.C. § 2251(d) provided, in relevant part, that “[a]ny individual
who violates, or attempts or conspires to violate, this section shall be fined under this title or imprisoned not less than 10
years nor more than 20 years, and both.” 18 U.S.C. § 2251(d) (2000). The provision has been changed to read “[a]ny
individual who violates, or attempts or conspires to violate, this section shall be fined under this title and imprisoned not
less than 15 years nor m ore than 30 years,” and 18 U.S.C. § 2251(d) has been reclassified as 18 U.S.C. § 2251(e). See
PRO TECT A ct, § 103, 117 Stat. at 653.

         4
           The PRO TECT A ct subsequently established a five-year mandatory minimum for receiving or distributing
child pornography. See PROT EC T Act § 103(b)(1)(E), 117 Stat. at 653 (codified at 18 U .S.C. § 2252A (b)(1)).

         5
           In discussing the proceedings below we refer to the ten-year mandatory minimum sentence as the District
Court and the parties understood it during those proceedings. Unless otherwise noted, all references in this section to 18
U.S.C. § 2251 or 2252A are to the versions in effect at the time of Pabon-Cruz’s conduct in 2001.
                                                              4
that, in the absence of a clarifying instruction, the jury would (erroneously) consider distributing

child pornography to be a more serious offense than advertising to distribute it.

        The Government also asked for the District Court’s permission to submit to the jury the

images advertised and distributed by defendant. In response, defendant offered to stipulate that

those images constituted child pornography and moved to preclude the Government from

introducing the photographs at trial on the ground that they were inflammatory.

        Judge Lynch ruled before trial that the Government could prepare for the jury a binder

containing 15 pornographic images. Judge Lynch also said that he was inclined to inform the jury of

the penalty that Pabon-Cruz would face if he were convicted on the advertising count. Judge Lynch

explained that, in his view, the Government’s request to introduce images of child pornography and

defendant’s request to instruct the jury about the mandatory minimum were related:

                 I must say, I find both sides a little bit inconsistent in that respect. The
        defense seems to want the jury to make some kind of a judgment about whether the
        penalty is appropriate for the conduct without letting the jury see what the conduct
        consists of. On the other hand, the government, which had the opportunity to have
        a fact finder who would be bound to apply the law and the evidence, chose a fact
        finder, I assume, because it wanted a judgment of the community, and yet it doesn’t
        want the community to know what it is actually judging about or what the
        consequences of its judgment are.

Accordingly, Judge Lynch indicated that because he had decided to grant the Government’s request

to introduce images of child pornography into evidence, he would also grant defendant’s request to

instruct the jury about the mandatory minimum.

        In response to the Government’s assertion that any decision to inform the jury about

sentencing “goes directly against controlling Second Circuit authority” requiring courts to forestall

nullification arguments to the jury, Judge Lynch insisted that he did not “intend to allow the defense

to argue nullification.” He elaborated:

               I have carefully considered the cases that you cite. I don’t intend to allow the
        defense to argue nullification. I don’t intend to allow the defense to argue that [the
                                                    5
        jury] should acquit because the sentence is too high. I will instruct the jury, in the
        usual way, that if they find that the government has met its burden of proving all the
        elements of both or either offense beyond a reasonable doubt, then they must
        convict the defendant of those charges.

                 But I think there is a difference between saying that the court does not and
        cannot approve of nullification, and ignoring the fact that juries have historically
        played this role. I think they are only appropriately able to play that role when they
        do it against a backdrop of stern admonitions that they are not supposed to do it. I
        think it is an act of civil disobedience if they do it. And they should not be given any
        encouragement or any condonation or any instruction that suggests to them that it is
        legally permissible for them to violate their oath as jurors. On the other hand,
        historically jurors have sometimes done that, and the judgment of history is
        sometimes that when they do that, they are in effect lawless and evil, and at other
        times the judgment of history is that they’ve done the right thing.

Thus, although Judge Lynch proposed to admonish the jury that nullification is not permissible, he

also proposed to tell the jury about the sentencing consequences of its verdict so that the jury could

make an informed decision as to whether to nullify the law.

        As a separate reason to inform the jury about the mandatory minimum, Judge Lynch offered

the possibility of juror confusion about the relationship between the two counts in the indictment.

According to Judge Lynch, it is counterintuitive that advertising to distribute pornographic images

carries a more severe sentence than actually distributing such images, and, therefore, jurors might

convict on the advertising count alone as part of a compromise verdict. Although he acknowledged

that juries are instructed not to compromise between separate counts, he said that “[i]f there is any

incentive or any situation arises in which the jury will be tempted to . . . compromise, it would be

absolutely perverse to let them decide to compromise on what is in effect the more serious charge.”

        At the charge conference, Judge Lynch announced his final decision to inform the jury of

the ten-year minimum sentence applicable to the advertising count. In doing so, he noted that

although “civil disobedience is not encouraged and is indeed prohibited by the law, it is sometimes

celebrated as an aspect of our system.” He continued:

                I would not expect the average juror to be very tempted to civil disobedience
                                                  6
       in light of the seriousness of the conduct shown here and the strength of the
       evidence against the defendant.
                But in the unlikely event that members of the jury were so troubled that they
       decided to acquit in the face of the court’s instruction, in violation of their oaths, and
       on the face of the evidence in the case, that, it seems to me, would constitute a
       significant exercise of the historic function of the jury and one that the jurors could
       never imagine if they had no notion of the seriousness of this offense in terms of
       punishment.

Judge Lynch then reiterated that, just as the jurors should see the images of child pornography in

order to understand the defendant’s offenses, they should also understand the serious and, in his

view, unexpected consequences of a conviction on the advertising count. Finally, the judge again

offered the possibility of a compromise verdict as a separate, “less important,” reason to inform the

jury about sentencing.

       Having decided to inform the jury of the mandatory minimum sentence attached to the

advertising count, Judge Lynch proposed the following language for the charge:

       Count One charges the defendant with advertising for child pornography. In terms
       of punishment, it is the more serious of the two charges in the indictment. It carries
       a maximum of twenty years in prison, and a mandatory minimum sentence of ten
       years in prison.

In sum, Judge Lynch intended to tell the jury, over the Government’s objection, about both (1) the

mandatory minimum applicable to the advertising offense and (2) the relationship between the two

separate counts in the indictment.

       Before the jury instructions contemplated by the judge were delivered, the Government filed

a motion for an emergency stay and a petition for a writ of mandamus with this Court. In its

petition, the Government asked this Court to direct the District Court not to instruct the jury

regarding the penalties faced by Pabon-Cruz if convicted of the advertising count. The next day, our

Court entered an emergency stay of the trial and heard arguments on the petition for a writ of

mandamus.

       On the day following argument, the Court granted the Government’s petition for a writ of
                                               7
mandamus in a brief summary order. The order stated in full:

         IT IS HEREBY ORDERED that the petition for a writ of mandamus is granted.
         Challenges to a proposed jury charge may properly be considered on a petition for a
         writ of mandamus. See United States v. Coonan, 839 F.2d 886 (2d Cir. 1988); United
         States v. Wexler, 31 F.3d 117 (3d Cir. 1994). The District Judge’s proposed jury
         instruction regarding the penalties the defendant faces if convicted is a clear abuse of
         discretion in light of binding authority. See Shannon v. United States, 512 U.S. 573
         (1994); United States v. Thomas, 116 F.3d 606 (2d Cir. 1997). IT IS FURTHER
         ORDERED that the stay of trial proceedings is hereby lifted.

         In the charge subsequently delivered to the jury, Judge Lynch did not mention either the

mandatory minimum sentence then imposed by 18 U.S.C. § 2251(d) or that the advertising offense

carried a more severe sentence than the distribution offense.6 Instead, he simply instructed the jury

that “[t]he question of possible punishment of the defendant is of no concern to [you]” and that

“[t]he duty of imposing sentence rests exclusively upon the Court.”

         Judge Lynch went on to explain the elements of the advertising offense as follows:

                First, that the defendant, Jorge Pabon-Cruz, knowingly made or
         published or caused to be published a notice or advertisement.

                  Second, that the notice or advertisement sought or offered to receive,
         exchange, buy, produce, display, distribute, or reproduce any visual depiction, if the
         production of such visual depiction involved using a minor engaged in sexually
         explicit conduct. . . .

                     In other words, the images sought or offered had to show a minor engaging
             in sexually explicit conduct, and had to be produced using a real minor engaged in
             sexually explicit conduct and not some digital or virtual creation that looks like a
             minor.

                      Third, that his notice or advertisement went from one state or United States
             territory to another by any means, including by computer. Going from one state or
             United States territory to another is known as being transported in interstate
             commerce.



         6
            Our Court’s order, which prevented the “proposed jury instruction regarding the penalties the defendant
faces if convicted,” did not distinguish between (1) the proposed instruction regarding the mandatory minimum, and (2)
the proposed instruction that the advertising offense carried a harsher penalty than the distribution offense. Accordingly,
the District Court removed both instructions from its charge.
                                                            8
With respect to the first and second elements of the advertising count, Judge Lynch told the jury

that the terms “notice” and “advertisement” were “self-explanatory,” and that the advertisement

“has to seek or offer a visual depiction . . . show[ing] a minor engaging in sexually explicit conduct.”

With respect to the second element of the advertising count, Judge Lynch also said that the

depictions offered had to involve the use of actual minors (i.e., real persons under the age of 18), but

he did not say whether the defendant had to know that the images depicted actual minors or that the

advertisement sought or offered a depiction of a minor engaged in sexual conduct.7

         During deliberations, the jury sent a note referring to the advertising count and requesting

“some clarity on whether the ad or notice must specifically mention a visual depiction or will any ad

or notice suffice.” In response, Judge Lynch repeated part of the original charge and added:



                  Not any kind of advertisement or notice will do. As I told you before, and as
         I just reread from the charge, the defendant had to knowingly make or publish a
         specific kind of notice or advertisement. In order to establish a violation of the
         statute, the government must prove beyond a reasonable doubt that the defendant
         made or published an advertisement or notice that sought to exchange, receive or
         distribute a visual depiction of the kind I defined for you. No particular magic
         words or phrases need to be included, but there must be proof beyond a reasonable
         doubt that the notice or advertisement concerned visual depictions of the kind I
         defined for you.


         The jury convicted defendant on both counts of the indictment. After the verdict, Pabon-

Cruz moved for a judgment of acquittal and, in the alternative, for a new trial. He argued, inter alia,

that the evidence presented at trial was insufficient to prove that he knew that the photographs

contained images of actual minors and that such knowledge was a required element of the

advertising count. The District Court denied these post-trial motions. See United States v. Pabon-Cruz,


         7
          By contrast, with respect to the d istribution count, Judge Lynch instructed the jury that Pabon-C ruz had to
know that the images he distributed dep icted actual minors and “the general nature, charac ter, and co ntent of the child
pornography.”
                                                             9
255 F. Supp. 2d 200 (S.D.N.Y. 2003).

          In advance of sentencing, defendant asked the District Court to declare the ten-year

minimum penalty then mandated by 18 U.S.C. § 2251(d) unconstitutional in light of the Eighth

Amendment’s prohibition on cruel and unusual punishment. Judge Lynch began his response to this

request by noting that “[t]his is without question the worst case of my judicial career.” He went on

to lament the inconsistencies in the sentencing scheme applicable to child pornography. Judge

Lynch noted that, in contrast to advertising to distribute child pornography, “Congress has not

imposed a mandatory sentence on distributing child pornography or on creating such pornography

or even on sexually abusing children.” And yet, according to Judge Lynch, “[no] member of

Congress would defend the view that posting such an advertisement is a more serious offense than

child rape.” Judge Lynch also criticized the breadth of § 2251(d), concluding that “it is a lack of

wisdom of this particular statute that it does not take into account the facts of particular cases.” In

Judge Lynch’s view, the statute’s flaws are particularly apparent in the instant case, which involves

“essentially an adolescent” who had never physically harmed a child.

          Nevertheless, Judge Lynch concluded that the mandatory minimum sentence, which has

since been increased to fifteen years, 8 was a deliberate decision by Congress, and that the deference

owed to Congress’ policy judgments was such that he could not hold that the ten-year mandatory

minimum sentence violated the Eighth Amendment.9 Thus, consistent with the mandatory

minimum then codified in § 2251, Judge Lynch sentenced Pabon-Cruz principally to ten years in

prison.


          8
              See note 3 ante.

          9
           Among other things, Judge Lynch found that the disparity between the mandatory minimum sentence
imposed on Pabon-Cruz for the advertising count and the lack of a mandatory minimum sentence for the more serious
crimes of creation of child pornography or of sexual abuse of children was “not irrational,” because there is less need for
mandatory minimum sentences for violent crimes that judges are inclined to punish harshly.
                                                            10
                                             DISCUSSION

        On appeal, Pabon-Cruz challenges his conviction on the advertising count and the sentence

that resulted from that conviction on three separate grounds. First, Pabon-Cruz contends that our

Court wrongly interfered with Judge Lynch’s proposed jury charge and thus prevented Judge Lynch

from giving a proper and balanced charge. Second, Pabon-Cruz argues that the District Court’s jury

charge on the advertising count was flawed because it failed (1) to require the jury to find the

specific content of defendant’s advertisement which was required for conviction—i.e., that it

specifically sought or offered visual depictions of actual minors, and (2) to explain that defendant

had to know that the images for which he advertised depicted actual minors. Finally, Pabon-Cruz

asserts that, in the circumstances presented in this case, imposition of a mandatory minimum

sentence of ten years’ imprisonment violates the Eighth Amendment’s proscription of cruel and

unusual punishment. In addition to the arguments raised by Pabon-Cruz, we nostra sponte raised a

question regarding the text of the statutory penalty provision of 18 U.S.C. § 2251(d). In particular,

we directed counsel to submit supplemental briefing regarding the precise terms of the mandated

penalty.



        A. The Writ of Mandamus

        Although defendant frames his challenge as one to the prior panel’s mandamus ruling, the

pertinent question on appeal is not whether that ruling was correct, but whether defendant was

denied the benefit of a charge he requested to which he was legally entitled. Accordingly, even if we

believed the earlier panel was incorrect in forbidding the District Court from instructing the jury on

the sentencing consequences, the conviction remains sound unless the instructions actually given by

the District Court were in error or the defendant had a legal entitlement to the instruction he was
                                                  11
denied. See United States v. Vasquez, 82 F.3d 574, 577-78 (2d Cir. 1996) (affirming a conviction where

the omitted jury instructions, although legally correct and even “preferable,” were not necessary).10

          The Supreme Court’s ruling in Shannon v. United States, 512 U.S. 573 (1994), makes clear that

defendant had no legal right to a charge informing the jury of the sentencing consequences of its

decisions. In Shannon, the Supreme Court rejected a defendant’s argument that the jury had to be

informed that a defendant acquitted by reason of insanity could be committed to a mental

institution. Id. at 575. En route to reaching that decision, the Court made the following observation

in fully persuasive dicta:

          The principle that juries are not to consider the consequences of their verdicts is a
          reflection of the basic division of labor in our legal system between judge and jury.
          The jury’s function is to find the facts and to decide whether, on those facts, the
          defendant is guilty of the crime charged. The judge, by contrast, imposes sentence on
          the defendant after the jury has arrived at a guilty verdict. Information regarding the
          consequences of a verdict is therefore irrelevant to the jury’s task. Moreover,
          providing jurors sentencing information invites them to ponder matters that are not
          within their province, distracts them from their factfinding responsibilities, and
          creates a strong possibility of confusion.

Id. at 579.

          The Shannon Court left open the possibility that it might be “necessary under certain limited

circumstances” to instruct a jury regarding the sentencing consequences of its verdict. Id. at 587.

The circumstance the Court identified as possibly calling for such an instruction was one in which

the jury has been affirmatively misled by counsel or a witness:

          [W]e recognize that an instruction of some form may be necessary under certain
          limited circumstances. If, for example, a witness or prosecutor states in the presence


          10
             Pabon-Cruz points out that, after the verdict was announced, two jurors told defense counsel that they had
“made a mistake.” These jurors were brought before Judge Lynch, and they told Judge Lynch that their confusion over
the supplemental instruction had led them to convict on the advertising count even though, in their view, it was not
supported by the eviden ce. E ven if this ev iden ce is not barred by Federal Rule of E vide nce 606(b), which generally
forbids juror testimony “as to any matter or statement occurring during the course of the jury’s deliberations or to the
effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from
the verdict,” it is irre levant, becau se it does n ot bear on defend ant’s entitlem ent to the proposed jury charge. In stead , it
merely suggests that the d isallow ed charge m ight have benefitted defendant had it been delivered to th e jury.
                                                                 12
         of the jury that a particular defendant would “go free” if found NGI [not guilty by
         reason of insanity], it may be necessary for the district court to intervene with an
         instruction to counter such a misstatement. The appropriate response, of course, will
         vary as is necessary to remedy the specific misstatement or error. We note this
         possibility merely so that our decision will not be misunderstood as an absolute
         prohibition on instructing the jury with regard to the consequences of an NGI
         verdict.

Id. at 587-88. Nothing in Shannon suggests Pabon-Cruz had any right to receive an instruction on the

sentencing consequences of a verdict of conviction in the circumstances with which the District

Court was presented.

         In United States v. Thomas, our Court explained that trial judges are duty bound to dismiss

jurors who manifest an intent to nullify the law. See Thomas, 116 F.3d 606, 615-18 (2d Cir. 1997).

Although we ultimately vacated a district court’s decision to dismiss a juror because record evidence

showed that the juror’s view on the merits of the case might not have been motivated by an intent to

nullify, id. at 625, we emphasized first that “the power of juries to ‘nullify’ or exercise a power of

lenity is just that—a power; it is by no means a right or something that a judge should encourage or

permit if it is within his authority to prevent.” Id. at 615. We explained further that “[i]nasmuch as no

juror has a right to engage in nullification—and, on the contrary, it is a violation of a juror’s sworn

duty to follow the law as instructed by the court—trial courts have the duty to forestall or prevent

such conduct . . . .” Id. at 616.

         Nothing in Thomas, or in any other authority of which we are aware, in any way supports the

proposition that Pabon-Cruz had an entitlement to have the jury instructed as to the sentence he

would receive if convicted.11 Accordingly, we conclude that his rights were in no way abridged by the

delivery of a jury charge which omitted this information. We decline to overturn the conviction on

this ground.


         11
          Because the issue is not before us, we intimate no view as to whether, or in what circumstances, a trial judge
may inform the jury of the relationship between punishment and offense.
                                                           13
         B. The Jury Charge

         Pabon-Cruz next claims that the District Court’s charge to the jury on the advertising count

was flawed because the District Court (1) failed to require the jury to find, with regard to the content

of Pabon-Cruz’s advertisements, that it specifically sought or offered visual depictions of actual

minors; and (2) failed to require the jury to find that Pabon-Cruz knew that his advertisement sought

or offered visual depictions of actual minors.

         Because Pabon-Cruz did not raise these arguments before the District Court delivered its jury

charge,12 we review for plain error. See, e.g., United States v. Whab, 355 F.3d 155, 158 (2d Cir. 2004).

Plain error requires “(1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s] substantial rights.’” Johnson v.

United States, 520 U.S. 461, 467 (1997) (quoting United States v. Olano, 507 U.S. 725, 732 (1993)).

Where these conditions are met, “an appellate court may then exercise its discretion to notice a

forfeited error, but only if (4) the error ‘seriously affect[s] the fairness, integrity, or public reputation

of judicial proceedings.’” Id. (quoting Olano, 507 U.S. at 732 (internal quotation marks omitted)).

         Pabon-Cruz cannot demonstrate plain error here. As an initial matter, Pabon-Cruz has raised

no serious objection to the District Court’s charge regarding the content of the advertisements. A

review of the District Court’s instructions shows that the Court repeatedly told the jury that, in order

to find defendant guilty, defendant had to make or publish a specific kind of advertisement—namely,


         12
             Pabon-Cruz’s appellate counsel conceded at oral argument before this Court, and the record confirms, that
defendant’s trial counsel did not object to Judge Lynch’s failure to instruct the jury that the defendant must know that
the advertised materials depict actual minors. By contrast, appellate counsel argues that trial counsel’s response to the
jury’s request for clarification “on whether the ad or notice must specifically mention a visual depiction or will any ad or
notice suffice” constituted “somewhat of an objection” with respect to the proposed jury charge on the content of the
advertisement. In response to the jury’s request, trial counsel asked Judge Lynch to state clearly that “any ad or notice”
will not suffice for the purposes of the statute.

         This response by trial counsel to the jury’s inquiry cannot properly be viewed as an objection to the jury charge,
because, after hearing defense counsel’s views, Judge Lynch agreed with defense counsel that he should tell the jury that
“not any kind of advertisem ent will do.” Moreover, once Judge Lynch expressed his agreement with defense counsel, she
acceded to the pro posed charge without further com ment.
                                                             14
an advertisement for visual depictions of an actual minor engaging in sexual activity. These

instructions tracked the language of 18 U.S.C. § 2251(c)(1)(A), under which a person commits a

crime if he “makes, prints, or publishes . . . any notice or advertisement seeking or offering . . . to

receive, exchange, buy, produce, display, distribute, or reproduce any visual depiction . . . [the

production of which] involves the use of a minor engaging in sexually explicit conduct and [which

depicts] such conduct.” In light of Judge Lynch’s strict adherence to the text of the statute in framing

his jury instruction, we reject as baseless Pabon-Cruz’s assertion that the jury charge on the content

of the advertisements was plainly erroneous.

         Pabon-Cruz’s second argument—namely, that the scienter element of a § 2251(c) offense

requires proof of knowledge that the materials advertised depict actual minors—is stronger in theory

but also falls short on the facts of this case. Any defect in the scienter charge on Count One for

violating § 2251(c) was harmless in view of the charge given on Count Two for violating 18 U.S.C. §

2252A, the distribution charge. In describing the elements of the latter crime, Judge Lynch specified

that “the government must prove beyond a reasonable doubt . . . that the defendant knew that the

child pornography depicted at least one minor, that is, an actual person under the age of 18, and

knew the general nature, character, and content of the child pornography.” Because the materials

involved in Count Two were the same as those involved in Count One, the jury’s guilty verdict on

Count Two necessarily showed that the jury found beyond a reasonable doubt defendant’s

knowledge of both the sexual nature of the visual depictions, and the actuality and minority of the

children depicted. Any error in the District Court’s charge was thus harmless.13




         13
             We n ote that the District Court’s instructions to the jury on the statute’s scienter requirem ents were
ambiguous. They left unclear not only whether defendant needed to know that the visual depictions sought or offered
involve d actu al minors, but even w hether defendant needed to know that the visual depictions were of sex ual activity. In
view of our reliance on the harmlessness of any error, we need not determine the extent of knowledge that § 2251(c)
actu ally requires. Cf. United States v. X-Citement Video, Inc., 513 U .S. 64, 69, 78 (1994).
                                                            15
        C. The Statutory Penalty Provision of 18 U.S.C. § 2251(d).

        In the course of preparing this opinion, we discovered that the version of 18 U.S.C. § 2251(d),

the penalty provision governing the advertising charge, set forth in the printed copy of the Conference

Report at the time of voting by both houses of Congress provided that “[a]ny individual who violates .

. . this section, shall be fined under this title or imprisoned not less than 10 years nor more than 20

years, or both. . . .” 142 Cong. Rec. H11,652 (Sept. 28, 1996); 142 Cong. Rec. S11,842 (Sept. 30, 1996)

(emphasis added). This language differs from that included in the bill signed by the President and

printed in the Statutes at Large, which provides that “[a]ny individual who violates . . . this section,

shall be fined under this title or imprisoned not less than 10 years nor more than 20 years, and both . . .

.” Pub. L. No. 104-208, § 121(4), 110 Stat. 3009-30 (1996) (emphasis added). Because much of this

case turns on the penalty provision, and the language and interpretation of this provision was

addressed neither by the parties nor by the District Court, we requested nostra sponte supplemental

briefing on the question of how the provision should be construed, and whether it allows a violator to

be sentenced to a fine in lieu of imprisonment. We have considered that supplemental briefing and

now turn to a consideration of the language of the penalty provision.



        The parties agree that the text of the bill signed by the President does not match the text of

the Conference Report. Defendant argues that the “and both” language makes no sense; that the

appropriate reading of the statute is thus “or both”; and that the District Court consequently has the

discretion to sentence anyone convicted under the statute to a fine, a term of imprisonment of at least

ten years, or both. The Government contends that the “and both” language controls and that, despite

its ungrammatical phrasing, it should be read to require a minimum ten-year term of imprisonment.

        It is clear that we have the authority to resolve this question despite its not having been raised

in the District Court proceedings or in the parties’ initial briefs. In an analogous situation, the Supreme
                                                   16
Court held that a Court of Appeals “decision to consider the issue [which had not been raised below]

was certainly no abuse of discretion,” United States Nat’l Bank of Oregon v. Indep. Ins. Agents of Am., Inc.,

508 U.S. 439, 448 (1993), and noted that “‘when an issue or claim is properly before the court, the

court is not limited to the particular legal theories advanced by the parties, but rather retains the

independent power to identify and apply the proper construction of governing law.’” Id. at 446

(quoting Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991)). Accordingly, before evaluating the

constitutionality of the sentence imposed by the District Court, we must determine exactly what the

statutory penalty provision in effect at the time of sentencing provided. We note that a subsequent

Congress revised this statute, and opted unmistakably for a mandatory prison sentence, by providing

in the PROTECT Act in 2003 that “[a]ny individual who violates, or attempts or conspires to violate,

this section shall be fined under this title and imprisoned not less than 15 years . . . .” 18 U.S.C. §

2251(e); H.R. Conf. Rep. 108-66, at 4 (2003). 14 Thus any decision we make with respect to the penalty

provision will apply to an extremely small universe of cases.

        We begin with the observation that the “and both” language in the Statutes at Large makes no

sense. As a grammatical matter, one cannot choose between “A, or B, and both.” Rather, it seems

obvious that Congress intended the provision to mean either “A, or B, or both,” or “A and B.” Both

parties are in agreement on this point. The Government acknowledges that the “and both” language is

“simply illogical” and “essentially [a] scrivener’s error[].” We thus join the Fourth Circuit, the only

other Court of Appeals to have considered the question, in finding the statutory language ambiguous,

and recognizing the need to consult the legislative history as an aid to its interpretation. See United

States v. Rast, 293 F.3d 735, 737 (4th Cir. 2002); cf. Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S.

471, 498 (1999) (Stevens, J., concurring) (“The Illegal Immigration Reform and Immigrant



        14
             See notes 2 and 3 ante.
                                                     17
Responsibility Act of 1996 . . . is a part of an omnibus enactment that occupies 750 pages in the

Statutes at Large. Pub. L. 104-208, 110 Stat. 3009-546. It is not surprising that it contains a scrivener’s

error.”).

        Turning to the legislative history, we observe that one of the possible constructions of the

statutory language—“A, or B, or both”—was prevalent in the drafting history of the text, while the

other possible construction—“A and B”—was never part of the text. The penalty provision was

originally part of the Child Pornography Prevention Act of 1996, which itself was inserted into H.R.

3610, an omnibus appropriations act for fiscal year 1997, at the House-Senate Conference on that bill.

The Conference Report on H.R. 3610, which contained the presumptively final, non-amendable

version of the language agreed to by the House of Representatives and the Senate, stated that violators

“shall be fined under this title or imprisoned not less than 10 years nor more than 20 years, or both . . .

.” H.R. Conf. Rep. No. 104-863, at 32 (1996); see also Charles Tiefer, Congressional Practice and

Procedure: A Reference, Research, and Legislative Guide 818 (1989) (“No matter how distasteful any

particular provision is, or how desirable some amendment would be, generally there is no way to

amend a conference report; it can only be accepted or rejected as a whole.”); id. at 249 (“At [the

enrollment] stage, technical corrections can still be made (and, on rare occasions, major amendments),

but only by the House and Senate passing a concurrent resolution directing the Clerk to make the

correction.”). The Conference Report on H.R. 3610, containing the “or both” language, was also

inserted into the Congressional Record. See 142 Cong. Rec. H11,644, 11,652 (Sept. 28, 1996).

Confusingly, the Senate Judiciary Committee Report on the Child Pornography Prevention Act

employs the “and both” language when it sets forth the terms of the bill, S. Rep. No. 104-358, at 4

(1996), and the “or both” language in its analysis of the bill’s provisions. Id. at 23. Because only the

analysis section of the Senate Report was inserted into the Congressional Record during the Senate

debate on H.R. 3610, the Congressional Record report of that debate contains only the “or both”
                                                   18
language. See 142 Cong. Rec. S11,838, 11,842 (Sept. 30, 1996).15

         Before turning to the appropriate resolution of the diverging texts, we first address the

Government’s argument that the “enrolled bill rule” prevents us from questioning the “and both”

language. The term “enrollment” refers to the process by which a bill passed by both houses of

Congress in an identical form is prepared for signature and presentation to the President. Tiefer, supra,

at 248. As explained by Professor Tiefer, the leading authority on Congressional practice and

procedure, when bills originate in the House of Representatives, like the Omnibus Appropriations Act

at issue here, the process of creating the enrolled bill is performed by the Clerk of the House, who

assembles the bill, any amendments, the conference report, and the notification of the final action by

the House, and from these he “meticulously” prepares the final form of the enrolled bill. Id. at 249

n.139 (quoting How Our Laws Are Made, H. R. Doc. No. 97-120, at 44 (1981)). Though technical

corrections can be made at this stage, such corrections require the House and Senate to pass a

concurrent resolution directing the Clerk of the House to make the change. Id. at 249. Once the

enrolled bill is prepared, and printed on parchment, it is delivered first to the Speaker of the House for

his signature, and then to the Senate’s President (either the Vice-President of the United States or the

President Pro Tempore) for his. Id. at 250. It is then presented to the President to be signed or vetoed.

Id.

         The enrolled bill rule—a longstanding rule, invoked by many courts, including the Supreme

Court and our own Court—provides that “‘[i]f a legislative document is authenticated in regular form

by the appropriate officials, the court[s] treat[] that document as properly adopted.’” United States v.



         15
            In addition, it appears that in order to facilitate debate on and passage of the omnibus appropriations act at
the end of the fiscal year, a separate bill was introduced containing much the same text as that which eventually passed
Congress as H.R. 3610. This bill, H.R. 4278, was passed by both the House and the Senate in votes that occurred
simultaneou sly with the votes on H .R. 36 10, althou gh H .R. 42 78 w as never signed by the P resid ent. See 142 Cong. Rec.
H12,033 (Sept. 28, 1996), S11,936 (Sept. 30, 1996). H.R. 4278 employed only the “or both” language supported by the
Con ference Report.
                                                             19
Sitka, 845 F.2d 43, 46 (2d Cir. 1988) (quoting United States v. Thomas, 788 F.2d 1250, 1253 (7th Cir.

1986) (citing Field v. Clark, 143 U.S. 649, 672-73 (1892))). We do not suggest that the bill at issue here

was not validly adopted. Nor do we question that the statute, as adopted, provides that violators “shall

be fined under this title or imprisoned not less than 10 years nor more than 20 years, and both.” In

response to our request for briefing, the Government sent a representative of the Department of

Justice to a National Archives facility to inspect and copy the original enrolled bill and has submitted a

copy of the bill for the consideration of opposing counsel and this Court. That bill does in fact contain

the “and both” language. Our task here is not to doubt the accuracy or validity of that language, but

merely to determine what Congress intended by it. And the enrolled bill doctrine “places no limits on

the evidence a court may consider in determining the meaning of a bill that has passed Congress.”

Nat’l Bank of Oregon, 508 U.S. at 455 n.7. Accordingly, we are free to determine the meaning of the

statutory penalty provision of 18 U.S.C. § 2251(d).

        The Government’s reliance on the enrolled bill rule underscores its confusion about our task

here. There is no question that the text of the bill signed by the President provides that violators “shall

be fined . . . or imprisoned not less than 10 years . . . , and both,” and that this is the law we are

considering. It is equally clear that the “and both” language makes no sense in this sentence. We are

thus required to determine how the language of the statute should be interpreted and applied. The

legislative history of § 2251(d) discussed above suggests that the “and both” language passed into law

was, as the Government suggests, a scrivener’s error. The same sources suggest that throughout much

of the debate on the provision, the materials on which Congress could have been expected to rely for

authoritative understandings of the bill’s language specified that the bill provided that violators should

be “fined under this title or imprisoned not less than 10 years nor more than 20 years, or both.” By

contrast, no version of the text of which we are aware ever provided that violators should be “be fined

under this title and imprisoned not less than 10 years nor more than 20 years.” In light of those
                                                   20
sources, and the fact that the “or both” language is both grammatically unambiguous and logical as a

matter of English usage, the “or both” language seems to us the most appropriate construction of the

provision.

         The Government contends that we should instead construe § 2251(d) as if it provided that

violators “shall be fined under this title and imprisoned not less than 10 years nor more than 20 years.”

In support of this argument, the Government does not point to anything in the legislative history

suggesting that language to that effect was ever put before or considered by Congress. Rather, the

Government contends that whatever language Congress intended to adopt, that language should be

construed as mandating a minimum of ten years’ imprisonment on the basis of (i) the overall structure

of § 2251(d); (ii) various statements made by individual legislators in support of and in opposition to

the provision; and (iii) the alleged absurdity of any contrary interpretation. We disagree.

         First, the Government contends that the structure of the statute was devised to set forth a

regime of mandatory minimums, based on a defendant’s prior convictions. The clauses of Section

2251(d) following the clause in question here, which apply only to recidivists, specify longer

mandatory minimums and, more importantly, specify that such defendants “shall be fined under this

title and imprisoned . . .” Pub. L. No. 104-208, § 121(4) (emphasis added).16 Contrary to the

Government’s arguments, however, we do not find the other clauses in the paragraph to be irrefutable

proof of Congress’ intent to ensure mandatory minimum sentences for all offenders without


         16
              The complete passage reads:

         (d) Any individual who violates, or attempts or conspires to violate, this section shall be fined under
         this title or imprisoned not less than 10 years nor more than 20 years, and both, but if such person has
         one prior conviction under this chapter or chapter 109A, or under the laws of any State relating to the
         sexual exploitation of children, such pe rson shall be fined und er this title and imprisoned for not less
         than 15 years nor mo re than 30 years, but if such person has 2 or mo re prior convictions under this
         chapter or chapter 109A, or under the laws of any State relating to the sexual exploitation of children,
         such person shall be fine d under this title and im prisoned not less than 30 years nor more than life.

Pub. L. No. 104-208, § 121(4).
                                                            21
exception; the discrepancy could as easily suggest Congress’ intent to allow a more lenient sentence

for first-time offenders. See Sosa v. Alvarez-Machain, 124 S. Ct. 2739, 2754 n.9 (2004) (referring to “the

usual rule that ‘when the legislature uses certain language in one part of the statute and different

language in another, the court assumes different meanings were intended.’”(quoting 2A N. Singer,

Statutes and Statutory Construction § 46:06 (6th ed. 2000))).

        The Government next argues, based on the legislative history of the provision, that the “plain

import” was to mandate a ten-year minimum sentence. Government Letter Brief of Sept. 10, 2004, at

8. As evidence of this theory, the Government presents statements made in the report of the Senate

Judiciary Committee describing the penalty provision, noting that “[t]he purpose of Senator Grassley’s

amendment [the amendment which resulted in the provision at issue here] is to toughen Federal

penalties for the sexual exploitation of children.” S. Rep. No. 104-358, at 22 (1996). However, it is

immediately after describing this purpose that the report notes that “an individual who violates section

2251 would be fined or imprisoned for not less than 10 years nor more than 20 years, or both.” Id. at

23 (emphasis added). Furthermore, no matter how we read the first-time offender provision of §

2251(d), the Child Pornography Prevention Act indisputably “toughen[ed] Federal penalties for the

sexual exploitation of children.” The previous version of the statute provided a ten-year maximum for

first-time offenders, and a fifteen-year maximum for recidivists. See 18 U.S.C. § 2251(d) (1994). H.R.

3610 increased the maximum penalty for first-time offenders by ten years, changed the fifteen-year

maximum for recidivists to a fifteen-year minimum, and added a new 30 years-to-life category for

third-time offenders.

        The Government also points to the statements in the Senate Report of three Senators opposed

to the mandatory minimum provisions as evidence of the Congressional intent to mandate minimum

sentences for all offenders. See id. at 31 (statement of Sen. Biden); id. at 33 (statement of Sen.

Kennedy); id. at 34 (statement of Sen. Simon). As we have noted before, however, “‘it is well
                                                 22
established that speeches by opponents of legislation are entitled to relatively little weight in

determining the meaning of the Act in question.’” In re Air Crash off Long Island, 209 F.3d 200, 206 (2d

Cir. 2000) (quoting Holtzman v. Schlesinger, 414 U.S. 1304, 1313 n.13 (1973) (Marshall, J., in

chambers)).17 We do not find the statements of the Senators opposed to mandatory minimum

provisions to constitute persuasive evidence against the clear meaning of the provision.

         Next, the Government notes that Senator Grassley, the sponsor of the amendment including

the penalty provisions, stated on the floor of the Senate: “In the Judiciary Committee, I offered an

amendment which would create a three-strikes-and-you’re-out penalty structure for the production of

child pornography. First time offenders will receive a 10-year minimum sentence. . . . My amendment

passed the committee after much debate.” 142 Cong. Rec. S11,285 (1996). While we acknowledge that

these remarks by Senator Grassley contribute meaningfully at least to the understanding of his views,18

these remarks do not furnish sufficient evidence that Congress as a whole intended to mandate

minimum terms of imprisonment and cannot suffice to overcome the more substantial indications

that Congress intended to permit a choice. See Chrysler Corp. v. Brown, 441 U.S. 281, 311 (1979) (“The

remarks of a single legislator, even the sponsor, are not controlling in analyzing legislative history.”).19


         17
              In any even t, the Governm ent offers no basis for concluding that the com men ts in the Senate Report
criticizing reliance on mandatory m inim um s were directed at the first-offender penalty provision at issue here. The C hild
Pornography Prevention Act added or toughened numerous “mandatory minimum” penalty provisions throughout 18
U.S.C. §§ 2251, 2252, and 2252A. The Senate bill also created new mandatory m inim um s in proposed Section 2252B, a
section that was ultimately not included in H.R. 36 10. See S. Rep. 104-358 at 5-6. One or more of the Senators might
well have criticized the add ition of new m andatory m inimum s without considering the first-offende r provision of §
2251(d) to be one of them.

         18
            We n ote, howeve r, that Senator Grassley’s rem arks are not necessarily persuasive eviden ce that Congress
intended a mandatory minimum sentence to apply to first-time advertisers for child pornography. Although he was
discussing § 2251(d), which unambiguously applies to § 2251(c)’s advertising offense as well as the child pornography
production offenses of § 2251(a) and (b), the Senator’s remarks refer only to the stiff penalties applicable to production.
Defendant argues that Senator Grassley’s focus on production demonstrates that § 2251(d) was applied to advertising
only because of legislative inadvertence, and should thus be found unconstitutional under the Eighth Amendment. We
have not add resse d tha t argu ment because we do n ot reach the constitution ality of § 2251(d ).

         19
            In any event, even if the statements by individual members of Congress that the Government has drawn
from the legislative history were weighty enough to counterbalance the evidence that the grammatically clear “or both”
language was the version of the statute intended by Congress, we would hesitate to adopt the Government’s position that
                                                             23
          Finally, the Government contends that the penalty provision in question should be understood

as mandating at least ten years’ imprisonment because any other result would be nonsensical. We

disagree. Construing § 2251(d) to provide that violators “shall be fined under this title or imprisoned

not less than 10 years nor more than 20 years, or both” results in a sentencing provision that is

grammatically clear and coherent, reconciles the ambiguous statutory language with an unambiguous

version of the text that was employed throughout the legislative history of the provision, and does not

produce absurd results in practice.

          The Government argues that it simply makes no sense to permit a fine-only sentence, but to

mandate that if any imprisonment is imposed, it must be at least ten years. This argument ignores the

fact that the statute, passed in 1996, would operate against the backdrop of the Sentencing Guidelines.

Depending on the particular circumstances of the crime and the offender, the Guidelines will almost

always call for a sentence of at least several years’ imprisonment for the offenses covered by § 2251(d),

in which case § 2251(d) will mandate that the sentence be at least ten years. Only if there exist

reasonable grounds for a very substantial downward departure will a federal judge have authority to

consider imposing only a fine on an offense punishable under § 2251(d). In other words, the

Government contends that it is patently absurd to read the statute, in line with significant textual

support in the legislative history, to permit a court to sentence an offender to no prison time if his case

is extraordinary enough to justify a substantial downward departure. In place of such a construction the

Government suggests we read the provision, without any textual support, and largely on the basis of

isolated comments by individual members of Congress, to mandate that all offenders be sentenced to

ten years’ imprisonment no matter what the facts may be in the individual case. We cannot agree that


an ambiguous penalty provision should be construed on that basis against a criminal defendant. See United States v.
R.L.C., 503 U.S. 291, 305 (1992) (“We do not think any ambiguity survives. If any did, however, we would choose the
constru ction yielding the shorter se ntence by resting on the venerable ru le of lenity rooted in the instinctive distaste
against men languishing in prison unless the lawmaker has clearly said they should.”) (internal quotation marks and
citations om itted); id. at 307 (Scalia, J., concu rring) (“[I]t is not consistent with the rule of lenity to construe a textually
ambiguous pen al statute against a crim inal defendant on the basis of legislative history .”).
                                                                24
there is any absurdity in prescribing a mandatory sentence for violations regarded as serious enough to

warrant imprisonment while allowing a sentence without confinement where sufficient mitigating

circumstances are found to justify withholding imprisonment altogether. Without doubt Congress

could rationally have prescribed mandatory imprisonment for all violations. We recognize that

Congress has indeed since amended the Act to provide unambiguously for such a result. But we cannot

accept that it would have been absurd for Congress to avoid such a result.

         The Fourth Circuit confronted the question of the appropriate interpretation of 18 U.S.C. §

2251 in United States v. Rast, 293 F.3d 735 (4th Cir. 2002). Relying on a previous Fourth Circuit case,

United States v. Jones, 902 F.2d 1152 (4th Cir. 1990), the Court there accepted the plain language of the

statute and concluded “that the opposition of a few Senators to § 2251(d)’s ‘mandatory minimum

provision’ does little to clarify the meaning of the statute and cannot supply the sort of clearly

expressed legislative intention necessary to displace the statute’s plain meaning. Section 2251(d) means

just what Congress intended it to say: a district court may impose either a fine or imprisonment of not

less than ten nor more than twenty years, or both.” Rast, 293 F.3d at 739.20

         We agree with the reasoning of the Fourth Circuit in Rast. The plain language of the “or both”

version which was in Congress’ contemplation is clear and produces a viable, though somewhat odd,

result. But nothing in the legislative history provides a strong enough basis to disregard the plain

language of the Conference Report. Cf. Conroy v. Aniskoff, 507 U.S. 511, 516 (1993) (“[B]oth the history

of this carefully reticulated statute, and our history of interpreting it, refute any argument that a literal

construction of § 525 [of the Soldiers’ and Sailors’ Civil Relief Act of 1940] is so absurd or illogical

that Congress could not have intended it.”). Indeed, the Government’s suggestion that construing the


         20
            In Rast, the Fourth Circuit concluded that the operation of the Sentencing Guidelines “foreclose[d] the
option of imposing solely a fine in [that] case,” and that insofar as a term of imprisonment was there required—and §
2251(d) unquestionably requires that if a term of imprisonment is applied, it be not less than ten years—the District
Court lacked the discretion to sentenc e the defendant und er the statute to a term of im prisonme nt of less that ten years.
293 F.3d at 739-40. We intimate no view as to what the Sentencing Guidelines mandate in the present case.
                                                             25
statute based on the plain “or both” language is “nonsensical” and “obviously directly contrary to

Congress’ intent,” Government Letter Brief of Sept. 10, 2004, at 16, is belied by the facts of this case,

which suggest that a mandatory ten-year sentence is anything but the “obvious” result. Insofar as we

see no ambiguity in the “or both” language, the Government’s suggestion that the legislative intent

was to mandate a minimum ten-year sentence is not sufficient to allow us to disregard the

overwhelming textual support in the legislative history for the “or both” language. See, e.g., Brown v.

Gardner, 513 U.S. 115, 120 (1994) (“In sum, the text and reasonable inferences from it give a clear

answer against the Government, and that, as we have said, is ‘the end of the matter.’” (quoting Good

Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993)). Accordingly, we conclude that the version of §

2251(d) applicable to Pabon-Cruz’s conviction on the advertising count permitted the District Court

to impose a fine in lieu of imprisonment.

        There is no doubt that allowing the District Court to choose between a fine and a ten-year

term of imprisonment is unusual, but we conclude that the Government’s approach is considerably

more eccentric. The Government nonetheless contends that our decisions in United States v. James, 239

F.3d 120 (2d Cir. 2000) and United States v. Detrich, 940 F.2d 37 (2d Cir. 1991) dictate our decision in

this case. We disagree. In James, we construed 18 U.S.C. § 1959(a)(1), which provided that individuals

convicted of murder in aid of racketeering “shall be punished . . . by death or life imprisonment, or a

fine under this title, or both.” James, 239 F.3d at 126. We there noted that the plain language of the

statute was “deeply problematic,” and concluded: “[t]he notion that the statute contemplates the

imposition of a fine without imprisonment cannot be reconciled with the extremely harsh

punishments—death or life imprisonment—otherwise available.” Id. The Court therefore rejected any

approach that would lead to a judge being “free to reject a death sentence or life imprisonment for a

defendant convicted under 18 U.S.C. § 1959(a)(1), but only by sentencing that defendant to a fine

without prison time.” Id. at 127.
                                                   26
        Detrich involved 21 U.S.C. § 960(b)(2), a statute which provided that a person convicted of

importing more than one hundred grams of heroin into the United States “shall be sentenced to a

term of imprisonment of not less than 5 years . . . , a fine . . . , or both.” 940 F.2d at 39. The Court

rejected the argument that the District Court had a choice between imprisonment and a fine,

concluding that “[a]lthough this portion of the statute could have been more artfully drafted, the

structure of Section 960(b)(2) makes it readily apparent that the district court must impose a prison

sentence of five years,” based in large part on the provision’s statement “that a person convicted

under it ‘shall be sentenced’ to not less than five years.” Id.

        Both of these cases are readily distinguishable. James presents a situation where the plain

language of the statute is indeed nonsensical enough to indicate that that plain meaning could not

have been what Congress intended. To allow no option between capital punishment or life

imprisonment, on the one hand, and a fine, on the other, is incomprehensible. We assume, in the

instant case as in others, that Congress did not intend an absurdity. Cf. Pub. Citizen v. Dept. of Justice, 491

U.S. 440, 470 (1989) (Kennedy, J., concurring) (describing absurdity rule as “demonstrat[ing] a respect

for the coequal Legislative Branch, which we assume would not act in an absurd way”). The ten-year

mandatory sentence at issue here presents a considerably less stark choice for the District Court, as

suggested by the facts of this case. Accordingly, we conclude that the holding in James does not govern

this case.

        Nor does the holding in Detrich, which relied in large part on the evidence of Congress’

intention as revealed by the language of the statute at issue there. As noted, that statute provided that

a person convicted of the relevant crime “shall be sentenced to a term of imprisonment of not less than five years .

. . ,” 21 U.S.C. § 960(b)(2) (emphasis added), thus clearly demonstrating an intent that violators be

imprisoned. See 21 U.S.C. § 960(b)(2) (providing that “any sentence imposed under this paragraph

shall, in the absence of such a prior conviction, include a term of supervised release of at least 4 years
                                                       27
in addition to such term of imprisonment,” and that “[n]o person sentenced under this paragraph shall be

eligible for parole during the term of imprisonment imposed therein”) (emphasis added); see also United States v.

Colon-Ortiz, 866 F.2d 6, 9-10 (1st Cir. 1989) (construing 21 U.S.C. § 841(b)(1)(B), a statute in relevant

part identical to 21 U.S.C. § 960(b)(2), and noting that the language of the penalty provision makes

clear that some imprisonment is mandated). Conversely, the language in the instant case provides that

“any individual who violates . . . this section, shall be fined under this title or imprisoned not less than 10 years .

. . , and both . . . ,” thus leaving an open question as to whether imprisonment is mandatory. 18 U.S.C. §

2251(d) (emphasis added). In view of the differing statutory language, we conclude that Detrich also

cannot control the instant case.

         Accordingly, we hold that the “and both” language contained in the enrolled version of the

statute makes no sense as a matter of grammar, usage, or law; that the “or both” language in the

Conference Report does make some sense; that the stronger evidence of Congress’ intent points to an

understanding that the “or both” text is what Congress contemplated; that there is no textual support

for the government’s interpretation; and that no judicial precedent compels our holding otherwise. We

therefore conclude that the District Court had the discretion to sentence defendant to either a fine or

a term of imprisonment of not less than ten years or both. Because this was not clear to the parties or

to the District Court at the time of sentencing, we are required to vacate the sentence and remand the

cause to the District Court for resentencing consistent with our opinion here and with such

Sentencing Guidelines as may be applicable in the circumstances presented.



         D. The Eighth Amendment

         Pabon-Cruz argues that his sentence is so disproportionate to his conduct that it violates the

Eighth Amendment’s prohibition on cruel and unusual punishment. In light of our holding that the

statute gives the District Court the discretion to sentence defendant to either a fine or a term of
                                                         28
imprisonment of not less than ten years or both and our vacatur of the sentence, this argument is

moot.



                                             CONCLUSION

        For the reasons stated above, we hold that defendant had no entitlement to a charge

instructing the jury on the sentencing consequences of a guilty verdict. Additionally, we hold that the

District Court’s jury charge on the advertising count, which did not include an instruction that 18

U.S.C. § 2251(c) requires proof of knowledge that the materials depict




                                                  29
actual minors, was not plainly erroneous. However, we conclude that the language of the statutory

penalty provision gives the District Court discretion to sentence defendant to either a fine or a term

of imprisonment of not less than ten years or both, and consequently remand for resentencing.

       Accordingly, the finding of guilt is affirmed, the sentence is vacated, and the cause is

remanded for further proceedings consistent with this opinion.




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