In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2961

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

GEORGE SHERMAN,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 CR 194--Blanche M. Manning, Judge.

ARGUED JANUARY 18, 2001--DECIDED October 11, 2001



  Before CUDAHY, KANNE and ROVNER, Circuit
Judges.

  ROVNER, Circuit Judge. George Sherman
pled guilty to one count of receiving
child pornography that had been mailed,
shipped and transported in interstate or
foreign commerce, in violation of 18
U.S.C. sec. 2252A(a)(2)(A). He stipulated
to conduct charged in two other counts,
including (1) mailing, transporting and
shipping child pornography in interstate
or foreign commerce, in violation of 18
U.S.C. sec. 2252A(a)(1); and (2)
possessing videotapes and other material
containing images of child pornography,
which had been mailed, shipped, and
transported in interstate or foreign
commerce, in violation of 18 U.S.C. sec.
2252A(a)(5)(B). The district court
declined to group the counts together for
sentencing purposes, and sentenced him to
30 months’ imprisonment. Sherman appeals,
and we affirm.

I.

  For several months in 1998, George
Sherman corresponded with an individual
by the name of Jason who resided in
Canada. In September of that year, he
mailed an envelope containing a letter
and a videotape from Chicago to Jason in
Ontario. The letter stated, "Here’s your
tape. Hope you enjoy it, Where’s the TAPE
that you are sending me???" The videotape
contained approximately six hours of
footage, and roughly 70% of the tape
depicted minors, including prepubescent
minors, engaged in sexually explicit
activity. Canadian postal inspectors
seized this tape, and alerted authorities
in the United States. Although Sherman
was not arrested at that time, this
seizure eventually resulted in Count One
of the indictment, which charged Sherman
with knowingly mailing, transporting and
shipping child pornography in interstate
or foreign commerce, in violation of 18
U.S.C. sec. 2252a(a)(1).

  Having been alerted by Canadian
officials, the United States Customs
Service searched Sherman’s Chicago apart
ment in December 1998. The Customs
Service recovered eight additional
videotapes which also contained images of
prepubescent minors engaged in sexually
explicit activity. Again, Sherman was not
arrested at that time, and this seizure
resulted in Count Two of the indictment,
charging Sherman with knowingly
possessing videotapes and other material
containing child pornography, which had
been mailed, shipped and transported in
interstate or foreign commerce, in
violation of 18 U.S.C. sec.
2252A(a)(5)(B).

  Apparently, the Customs Service was not
the only agency that had been alerted to
Sherman’s interest in child pornography.
The Federal Bureau of Investigation asked
the United States Postal Inspection
Service to conduct an investigation of
Sherman’s involvement in child
pornography. The record does not reveal
the source of the FBI’s suspicions about
Sherman, except to state that this
investigation was entirely independent of
any action by Canadian authorities or the
Customs Service. At the FBI’s
instigation, an agent of the Postal
Inspection Service conducted an
undercover investigation of Sherman. The
agent mailed a letter to Sherman,
introducing himself as "Lou and Ann," the
owners of "Foreign Films Etcetera," a
business specializing in visual materials
"very much outside the norm." The
introductory letter apparently piqued
Sherman’s interest and after a series of
letters back and forth, he ordered a
video and a photo set from "Lou and Ann,"
enclosing his payment with the order. The
video was titled "Boys-3." According to
the brochure sent by the fictional "Lou
and Ann," the video contained sexual
activity between two boys aged 12 and 13.
The photo set was titled "Chicken For
Hire" and portrayed, according to the
promotional materials, "uninhibited boys
aged 8 to 15," engaged in various sexual
acts. Sherman also filled out a "sexual
interests survey" for "Lou and Ann,"
checking off as areas of interest the
categories of "chickenhawk" and "incest,"
among other things./1 On a blank line
for "special requests," Sherman wrote
"young, underage." He also indicated an
interest in buying and trading materials.
"Lou and Ann" had expressly warned
Sherman that some of the materials they
sold were "very illegal."

  In March 1999, the agent prepared a
controlled delivery of the materials that
Sherman ordered. Sherman signed a
delivery receipt for the materials and
accepted the package. When law
enforcement officers searched his
apartment a short time later, they found
the opened photo set under the cushion of
a living room chair. They found the video
in the kitchen in Sherman’s oven, along
with a copy he had already made in the
short time he possessed the materials.
They also recovered a number of
videotapes containing images of nude,
underage males. This time, Sherman
wasarrested and this latest conduct
resulted in Count Three of the
indictment, charging him with knowingly
receiving child pornography that had been
mailed, shipped and transported in
interstate or foreign commerce, in
violation of 18 U.S.C. sec.
2252A(a)(2)(A).

  Sherman pled guilty to Count Three, and
stipulated to the conduct charged in
Counts One and Two. The probation officer
preparing the Presentence Investigation
Report (the "PSR") wrote that, because
Sherman’s criminal conduct "consists of
separate harms and separate victims, [the
counts] cannot be grouped together under
any of the subsections contained in sec.
3D1.2, for the purpose of guideline
calculation." PSR at 8. Sherman objected
to this finding and argued in the
district court that all three counts of
the indictment involved the same victim
under sec. 3D1.2. According to Sherman,
the definition of "victim" provided in
that section does not include secondary
or indirect victims, and Sherman
maintained that for the crimes of
shipping, possessing and receiving child
pornography, the main victim is society
rather than the children involved in the
production of the materials. Sherman
conceded that for the crime of producing
these materials, the children exploited
in the production are the primary
victims, but that he was merely a passive
viewer who caused no additional harm to
the children involved. The district court
rejected that argument, refused to group
the counts for sentencing purposes, and
ordered Sherman imprisoned for 30 months.
Sherman appeals.

II.

  United States Sentencing Guideline sec.
3D1.2 provides, in relevant part:

All counts involving substantially the
same harm shall be grouped together into
a single Group. Counts involve
substantially the same harm within the
meaning of this rule:

. . . .

(b) When counts involve the same victim
and two or more acts or transactions
connected by a common criminal objective
or constituting part of a common scheme
or plan.
Application Note 2 of the Commentary to
Guideline sec. 3D1.2 provides:

The term "victim" is not intended to
include indirect or secondary victims.
Generally, there will be one person who
is directly and most seriously affected
by the offense and is therefore
identifiable as the victim. For offenses
in which there are no identifiable
victims (e.g., drug or immigration
offenses, where society at large is the
victim), the "victim" for purposes of
subsections (a) and (b) is the societal
interest that is harmed. In such cases,
the counts are grouped together when the
societal interests that are harmed are
closely related. . . . Ambiguities should
be resolved in accordance with the
purpose of this section as stated in the
lead paragraph, i.e., to identify and
group "counts involving substantially the
same harm."
In this case of first impression in the
Seventh Circuit, we must decide who is
the primary or direct victim of the
crimes of shipping, possessing and
receiving child pornography. A number of
circuits have weighed in on the issue and
there is a split in the result. The split
heavily favors the government’s position
that the children portrayed in the
material are the primary victims of these
crimes. Only one circuit has decided that
society is the primary victim in these
circumstances. We will review the cases
from our sister circuits before turning
to Sherman’s arguments and the
government’s response.

A.

  The Fourth Circuit was the first to
consider who is the primary or direct
victim of the crime of transporting child
pornography in interstate commerce.
United States v. Toler, 901 F.2d 399 (4th
Cir. 1990). In addition to a single sec.
2252A count of transporting child
pornography in interstate commerce, Toler
was charged with two counts of interstate
transportation of a minor with intent to
engage in prohibited sexual conduct, in
violation of 18 U.S.C. sec. 2423. The
child depicted in the pornography was
Toler’s 12-year-old stepdaughter, and she
was the same child Toler transported
across state lines with intent to engage
in prohibited sexual conduct. 901 F.2d at
400. The district court declined Toler’s
invitation to group the three offenses
for sentencing purposes under sec. 3D1.2,
and the Fourth Circuit affirmed. Id. The
appellate court found that the primary
interest sought to be protected in a sec.
2423 offense, transporting a minor across
state lines with the intent to engage in
prohibited sexual conduct, is that of the
individual minor. The victim of that
offense was therefore Toler’s
stepdaughter. 901 F.2d at 403. In
contrast, the court found that the
primary interest Congress sought to
protect in sec. 2252A was the moral
fabric of society at large. Id. The court
found that the minor depicted in the
pornography was a secondary victim of the
crime. The court based this conclusion on
the legislative history of sec. 2252A,
which states, in part, that "the use of
children as prostitutes or as the
subjects of pornographic materials is
very harmful to both the children and the
society as a whole." 901 F.2d at 403 n.5.
Because the counts were not grouped,
Toler’s combined offense level was
increased three levels under sec. 3D1.4,
and his resulting sentence was
lengthened.

  Every court to consider the issue since
Toler has rejected the Fourth Circuit’s
reasoning. The Eighth Circuit faced the
issue in United States v. Rugh, 968 F.2d
750 (8th Cir. 1992). Rugh was charged
with two counts of receiving child
pornography through the mail in violation
of 18 U.S.C. sec. 2252(a)(2). The
pictures Rugh received on two different
occasions depicted different children.
968 F.2d at 755. Relying on Toler, Rugh
argued that the two counts should be
grouped because both involved the same
victim, society at large. The Eighth
Circuit noted that, although Congress
expressed grave concerns for the effect
of child pornography on the nation’s
moral fabric, the legislature’s primary
concern was for the children involved in
the production of the materials. 968 F.2d
at 755. Citing the legislative history of
sec. 2252, the court found that the
primary victim of the crime of receiving
child pornography was the exploited child
portrayed in the materials. 968 F.2d at
756. In particular, the court cited the
Senate report on the law, which detailed
the harms that come to children involved
in the production of pornography. Among
these harms, the report noted, is the
"deep psychological, humiliating impact
on these youngsters," which
"jeopardize[s] the possibility of
healthy, affectionate relationships in
the future." Id. The report also noted
the increased likelihood that children
who were molested would grow up to engage
in a life of drugs and prostitution, as
well as becoming molesters themselves,
perpetuating the cycle of abuse. Id. The
court did not draw a distinction between
the harms caused by the production of the
materials and the harms caused by its
distribution and receipt by persons not
involved in the production. Rather, the
court concluded that the primary victim
of the crime of receiving child
pornography is the child depicted.
Therefore, the two counts could not be
grouped under sec. 3D1.2.

  The Third Circuit also was "not
persuaded by the Fourth Circuit’s"
reasoning in Toler. See United States v.
Ketcham, 80 F.3d 789 (3d Cir. 1996).
Ketcham pled guilty to multiple charges,
including transporting, receiving,
distributing, reproducing and possessing
child pornography. 80 F.3d at 791. As
with Rugh, Ketcham was not accused of any
crime involving the production of the
materials at issue, and thus he had no
direct contact with the children
exploited in making the materials.
Different children were depicted in the
various pictures and films seized by
authorities. 80 F.3d at 792. As with
Rugh, Ketcham asserted that the multiple
counts should be grouped under sec. 3D1.2
because they involved the same victim,
society at large. The court reviewed the
legislative history, and concluded that
the primary concern of Congress in
passing the measure was to protect
children. The court noted,

This is not a statute where there is no
identifiable victim. The fact that a
criminal statute in a general sense
protects society as a whole cannot
suffice to make society the primary
victim. Were this the case, society would
be the primary victim of nearly every
criminal statute.

80 F.3d at 793. Ketcham conceded that the
direct victim of sec. 2251, which
criminalizes the production of child
pornography, is the child used in the
production. He sought to distinguish the
crimes of transporting, distributing and
receiving. The court rejected any
distinction, finding that sec. 2252
discourages the production of pornography
by depriving the would-be producers of a
market. Id. Thus, the court reasoned, the
primary objective of both sec. 2251 and
sec. 2252 was the same, to protect
children from exploitation by the
producers of child pornography. The court
held that, therefore, the victims of both
sections are the same. Id.

  The Ninth Circuit also declined to draw
any distinction between the crime of
producing child pornography and the
crimes of distributing or receiving child
pornography in determining who was the
primary or direct victim of the crime.
United States v. Boos, 127 F.3d 1207 (9th
Cir. 1997), cert. denied, 522 U.S. 1066
(1998). The court remarked that
distributing child pornography differs
from drug and immigration offenses. The
court characterized those crimes as
"victimless," and noted that the harm
from drug and immigration offenses is
spread evenly throughout society. 127
F.3d at 1210. The harm caused by the
distribution of child pornography, on the
other hand, is concentrated on the
children used in the production of the
material. Id. Using a dictionary
definition of "victim," the court found
that it was the children used in the
production of the pornography who were
injured, both physically and
psychologically as a result of Boos’
patronage of the industry. The court also
relied on the legislative history, which
refers repeatedly to the children used in
the production of pornography as victims.
127 F.3d at 1211.

  The court in Boos was the first to
address the particular additional harm
visited on these children by the
distribution of the offending material.
Citing the Supreme Court’s opinion in New
York v. Ferber, 458 U.S. 747 (1982), the
Ninth Circuit acknowledged the direct
harm that arises through distribution:

The distribution of photographs and films
depicting sexual activity by juveniles is
intrinsically related to the sexual abuse
of children. . . . [T]he materials
produced are a permanent record of the
children’s participation and the harm to
the child is exacerbated by their
circulation.

Boos, 127 F.3d at 1211 (quoting Ferber,
458 U.S. at 759). The court went on to
describe the harm to the children
depicted as a "trespass against the
dignity of the child." 127 F.3d at 1212
(citing United States v. Wiegand, 812
F.2d 1239, 1245 (9th Cir. 1987), cert.
denied, 484 U.S. 856 (1987)). Indeed, the
Ninth Circuit had recently ruled that
children are the direct victims of a sec.
2423(b) violation (interstate travel with
intent to engage in a sexual act with a
minor) even if no real children were
involved and the charges were the result
of a police sting using fictional
children. Under all of those rationales,
the court found that the children
depicted in pornography are the primary
victims of the crime of distributing that
material. Boos, 127 F.3d at 1212.
  Two other circuit courts quickly
followed suit. The Sixth Circuit, relying
entirely on the rationales set forth in
Ketcham and Boos, found that the children
depicted in the pornography possessed and
shipped by a defendant are the primary
victims of the crimes of possession and
distribution. United States v. Hibbler,
159 F.3d 233, 236-37 (6th Cir. 1998),
cert. denied, 526 U.S. 1030 (1999). The
Fifth Circuit looked first to a
dictionary definition of "victim" and
then specified the harm that occurs after
"the pornographer’s camera is put away."
United States v. Norris, 159 F.3d 926,
929 (5th Cir. 1998), cert. denied, 526
U.S. 1010 (1999). First, citing the
"permanent record" language of Ferber,
the court held that the dissemination of
the images perpetuates the abuse
initiated by the producer of the
material. In particular, the continued
existence of the material haunts these
children in future years. Norris, 159
F.3d at 929-30. Thus, a "passive"
consumer who merely receives or possesses
the images directly contributes to this
continuing victimization. 159 F.3d at
930.

  Second, "the mere existence of child
pornography represents an invasion of the
privacy of the child depicted." Id.
Citing both the Supreme Court and the
Congressional Record, the court explained
that distribution of the material
violates an individual’s interest in
avoiding disclosure of personal matters,
as well as the child’s
reputationalinterests. 159 F.3d at 930
(citing Ferber, 458 U.S. at 759 n.10 and
1996 Act, 110 Stat. at 3009-26). Third,
the court found that the consumers of
child pornography instigate its
production by providing an economic
motive for creating and distributing the
materials. Norris, 159 F.3d at 930.
Characterizing the situation as a
"chicken-and-egg scenario," the court
suggested it was impossible to determine
who was responsible for the initial
production of the materials, the
consumers or the producers, since neither
would existwithout the other. Id. The
court concluded that the children
depicted were the primary victims of the
crimes of receiving and possessing child
pornography. 159 F.3d at 931.

  Most recently, the Eleventh Circuit has
joined the growing number of courts that
reject Toler and instead interpret the
legislative history to find that the
children depicted in pornography are the
primary victims of the crimes of
possessing, receiving and distributing
those materials. See United States v.
Tillmon, 195 F.3d 640 (11th Cir. 1999).
Although acknowledging that the
production of pornography may be more
immediately harmful to the child
involved, the court found that the
dissemination of the material exacerbates
the harm by continuing to invade the
privacy of the child and by providing the
very market that led to the creation of
the images in the first place. 195 F.3d
at 644.

B.

  Sherman and the government are in
agreement that we review de novo the
district court’s refusal to group the
counts under sec. 3D1.2 when there are no
facts in dispute. United States v.
Wilson, 98 F.3d 281, 282 (7th Cir. 1996).
Sherman argues that the three counts of
his indictment all involve the same
victim, society at large, and therefore
the district court should have grouped
the counts for sentencing purposes. He
maintains that a private, passive viewer
of child pornography does not directly
victimize the children depicted in the
materials within the plain meaning of
sec. 3D1.2. He points out that the
district court focused on the so-called
market maker theory of victimization.
That is, the district court believed
Sherman harmed these children by creating
a market demand for the production of
child pornography. The district court
then characterized this harm as
"indirect," concluding that no one would
make the videos or photo sets if there
were no buyers for the materials.
According to Sherman this is not enough,
especially in light of the government’s
failure to produce evidence demonstrating
that Sherman’s desire to watch
pornography encouraged the production of
the videos and photo sets found in his
possession. Sherman also complains that,
had he obtained all of the materials in a
single transaction, he would have been
charged in a single count. This last
complaint is odd in light of the fact
that he was charged not with being a
passive viewer or mere possessor of
pornography but rather with three
different crimes: possessing, receiving,
and shipping child pornography, all
occurring on three different dates in
distinctly different transactions. Thus,
his observation that he would have been
charged in a single count if he had
obtained all the materials in a single
transaction is true, but completely
irrelevant.

  The more serious of Sherman’s arguments
is his challenge to the market maker
theory of victimization. The government
cites Osborne v. Ohio, 495 U.S. 103
(1990), in support of its argument that
purchasers of pornography create a market
incentive to produce pornography. In
Osborne, the Supreme Court weighed the
state’s interest in criminalizing
pornography against a person’s First
Amendment right to possess it. The Court
concluded that Ohio enacted its law to
protect the victims of child pornography
by attempting to destroy the market for
the exploitative use of children.
Specifically, the Court held it was
"reasonable for the State to conclude
that it will decrease the production of
child pornography if it penalizes those
who possess and view the product, thereby
decreasing demand." 495 U.S. at 109-10.
Destroying the market is certainly a
strong enough link to justify
criminalizing possession of the material,
but here we are confronted with an
additional requirement. The sentencing
guideline requires us to identify the
"primary" or "direct" victim of the
crimes of possession, receiving and
shipping child pornography. The market
maker theory provides only an indirect
link between a particular child used in
the production of pornography and a later
purchaser or possessor of that material.
We agree that because sec. 3D1.2
precludes the consideration of indirect
harm, the market maker theory is a thin
reed on which to rest the grouping
decision. Although creating a market for
the materials certainly victimizes the
children involved, we cannot say that the
purchaser directly harms the children
involved. We would have a different case
if the defendant commissioned the
production and was more directly involved
in the harm to the particular children
portrayed in the materials. But because
the creation of a market demand is more
indirect than the guideline seems to
contemplate, we do not rest our decision
on the market maker theory of
victimization.

  Instead, we turn to the other main
rationale expressed by our sister
circuits, and supported by related
Supreme Court precedent. The possession,
receipt and shipping of child pornography
directly victimizes the children
portrayed by violating their right to
privacy, and in particular violating
their individual interest in avoiding the
disclosure of personal matters. See
Ferber, 458 U.S. at 759 n.10 (citing
Whalen v. Roe, 429 U.S. 589 (1977)). In
Ferber, the Supreme Court upheld a New
York statute that prohibited a person
from knowingly promoting a sexual
performance by a child under the age of
16 by distributing material which
depicted such a performance. In setting
out the state’s interest in criminalizing
this activity, the Supreme Court
delineated the harm that comes to the
children depicted when pornography is
possessed or distributed:

Because the child’s actions are reduced
to a recording, the pornography may haunt
him in future years, long after the
original misdeed took place. A child who
has posed for a camera must go through
life knowing that the recording is
circulating within the mass distribution
system for child pornography.

458 U.S. at 759 n.10 (quoting Shouvlin,
Preventing the Sexual Exploitation of
Children: a Model Act, 17 Wake Forest L.
Rev. 535, 545 (1981)). Children also
suffer profound emotional repercussions
from a fear of exposure, and the tension
of keeping the abuse secret. 458 U.S. at
759 n.10 (citing Schoettle, Child
Exploitation: A Study of Child
Pornography, 19 J. Am. Acad. Child
Psychiatry 289, 296 (1980)). Indeed, one
of the reasons for criminalizing the
"mere" possession of child pornography is
to create an incentive for the possessor
to destroy the material, and alleviate
some of these harms to the children
depicted. Osborne v. Ohio, 495 U.S. 103,
111 (1990) ("The State’s ban on
possession and viewing encourages the
possessors of these materials to destroy
them."). Cf. United States v. Richardson,
238 F.3d 837, 839 (7th Cir. 2001)
("Concern with the welfare of the
children who are used to create
pornography is part of the public concern
over child pornography, . . . and this
makes the receiver a greater malefactor
than the possessor.").

  Sherman argues that if we hold that the
invasion of privacy is a direct harm to
the child depicted, then the government
could charge him in a separate count for
each viewing of a pornographic videotape.
This allows the government too much
discretion in charging the crime, he
maintains. Although the child’s inability
to prevent the dissemination of something
so personal as a record of sexual abuse
is a direct harm, Sherman was not charged
with viewing this material. Rather, he
was charged with shipping, receiving and
possessing the materials. The statute
under which he was charged does not
separately criminalize viewing the
materials, and so Sherman’s hypothetical
"multiple viewing" charging problem is
without substance. See 18 U.S.C. sec.
2252A. Sherman also fears the government
could charge him with twenty counts of
child pornography if he possessed a tape
depicting twenty different children.
Again, the crime is possessing that
single tape, and that possession
constitutes one count regardless of the
number of children portrayed. The fact
that there are multiple victims of a
single count may have other sentencing
consequences that we need not consider
today.

  Because the children depicted in the
pornography suffer a direct and primary
emotional harm when another person
possesses, receives or distributes the
material, we join the six circuits that
have concluded that these counts should
not be grouped under sec. 3D1.2. Although
society at large is also a victim of
these crimes, the primary, identifiable
victim is the child portrayed, who must
live with the knowledge that adults like
George Sherman can pull out a picture or
watch a video that has recorded the abuse
of that child at any time./2

C.

  We have one more issue to address
because the government and this Court
have taken a contrary position in the
past. The government argues here, and we
agree, that the possession of child
pornography directly harms the child
depicted by invading that child’s
privacy. But in the past, the government
has defended its investigative technique
against charges of outrageous conduct by
claiming that no children are harmed when
the government possesses and supplies a
suspect with previously seized child
pornography. In the past, we accepted
that view and held that no third parties
were harmed in that instance. See United
States v. Duncan, 896 F.2d 271, 276 (7th
Cir. 1990) ("there was no injury to
innocent third parties as the government
merely sent Duncan copies of previously
seized child pornography."); United
States v. Thoma, 726 F.2d 1191, 1199 (7th
Cir. 1984), cert. denied, 467 U.S. 1228
(1984) (no harm to third parties when
government allowed defendant to videotape
photographs of children from already
seized publications). Our holding today
is in tension with our holdings in the
outrageous conduct cases. Because we are
finding today that third parties may be
directly harmed by the defendant’s
possession of child pornography supplied
to him by the government in the course of
its investigation, we have circulated
this opinion to the full court for a vote
on whether to hear the case en banc
pursuant to Circuit Rule 40(e). A
majority of the court has voted not to
hear the case en banc.

  Under our holding today, the
government’s own possession of and
dissemination of child pornography during
the investigation of Sherman resulted in
an invasion of privacy of the children
depicted. The government here supplied
Sherman with a literal catalog of child
pornography, and then delivered to him
materials that depicted actual children,
allowing him enough time to view and even
copy the materials before arresting him.
Recall that Sherman had already
duplicated the videotape that the
government shipped to him before he was
arrested. Indeed, in this electronic age,
Sherman would have had enough time to
scan the photo sets into a computer and
send them anywhere in the world, where it
is unlikely they could have ever been re
trieved and destroyed. We questioned the
government about this conduct at oral
argument, and the government replied that
in the course of undercover
investigations, the government sometimes
participates in crimes in order to serve
the larger purpose of preventing further
crimes. We find this explanation
troublesome for two reasons. First, the
government’s participation in criminal
activity in the course of an
investigation should rarely, if ever,
involve harming actual, innocent victims.
See Duncan, 896 F.2d at 276 (we will
closely examine those cases in which
government misconduct injures third
parties in some way); Thoma, 726 F.2d at
1199 (same). We are aware of the
necessity of such tactics in so-called
victimless crimes such as drug offenses,
but the use of these methods when victims
are actually harmed is inexplicable.
Moreover, the government’s dissemination
of the pornographic materials to Sherman
could hardly be described as a
"controlled" delivery of the materials.
Given the length of time that Sherman was
allowed to possess these materials before
he was arrested, the government’s conduct
here could easily have led to further
victimization of the children depicted
because the defendant had an opportunity
to copy the materials and disseminate
them to others. But the defendant did not
complain about the government’s conduct
here, and we of course have held that the
defense of outrageous government conduct
does not exist in this circuit. United
States v. Boyd, 55 F.3d 239, 241 (7th
Cir. 1995).

  Many courts have noted that child
pornography is a difficult crime to
detect because it occurs under a shroud
of secrecy. Duncan, 896 F.2d at 276;
United States v. Osborne, 935 F.2d 32, 37
(4th Cir. 1991) ("undercover operations
provide a means by which participants in
the clandestine child pornography
industry can be detected."); United
States v. Moore, 916 F.2d 1131, 1139 (6th
Cir. 1990) ("undercover operations are
severely needed to prevent and deter
those who produce, sell, purchase or
traffic in child pornography."); United
States v. Musslyn, 865 F.2d 945, 947 (8th
Cir. 1989) (undercover sting operations
are justified by the nature of the
production, distribution and sales of
child pornography). There is no easy
answer to the problem of ferreting out
child pornographers without hurting
actual children in the process. But we
are troubled by certain parts of this
investigation where the government might
have done a better job of protecting the
children victimized by pornography.
First, the government offered no
explanation for why Sherman was not
arrested when Canadian authorities seized
the first tape he mailed to Jason in
Canada in September of 1998, or for that
matter, why he was not arrested after a
second seizure of child pornography in
December of 1998. Second, the
government’s right hand apparently did
not know what its left hand was doing, as
both the U.S. Customs Service and the
U.S. Postal Inspection Service (in
conjunction with the FBI) carried on
independent investigations of Sherman for
some time. This duplication of effort led
to the Postal Inspection Service
supplying Sherman with additional child
pornography when the government had
already seized illegal materials from him
on two prior occasions. Third, the so-
called controlled delivery of photo sets
and a videotape in March 1999 allowed the
defendant an unnecessarily lengthy amount
of time to view and copy the materials
before his arrest. As we pointed out, he
could have scanned the images into a
computer and disseminated them worldwide.
Law enforcement agents are understandably
motivated to use all legal means at their
disposal to apprehend and convict
criminals, and the pursuit of child
pornographers, whose crimes are
particularly heinous, predictably results
in aggressive law enforcement techniques.
But we must not lose sight of the risk of
harming the innocent third parties that
the law was enacted to protect. See
United States v. Chin, 934 F.2d 393, 400
(2d Cir. 1991) (cautioning law
enforcement to think twice before
engaging in investigations that encourage
individuals to commit actions that harm
innocent third parties). We have no doubt
that creative investigative techniques
and tight controls on the materials used
as bait for the consumers of child
pornography can lead to better protection
of the victims of child pornography. We
do not mean by this discussion to
resurrect the defense of outrageous
government conduct, and we reaffirm our
holding in Boyd that no such defense is
available in this circuit. See Boyd, 55
F.3d at 241. We merely wish to caution
the government that its investigative
technique in this case was inconsistent
with its position on appeal that the
children depicted are harmed by the
continued existence of and mere
possession of child pornography.

III.

  Sherman does not contest the
government’s claim that different
children were depicted in the materials
involved in each of the three counts.
Thus, each count had a different primary
victim, and the district court was
correct to decline to group the counts
for sentencing purposes under sec. 3D1.2.
For the reasons stated above, we thus
affirm the judgment of the district
court.

AFFIRMED.

FOOTNOTES

/1 "Chickenhawk" refers to a category of pornography
involving older adult males who have a sexual
interest in very young or underage males. The
young or underage males are referred to as
"chickens," while the older men are "hawks."

/2 The Supreme Court recently granted certiorari in
Free Speech Coalition v. Reno, 198 F.3d 1083 (9th
Cir. 1999), a case which held that part of the
child pornography statute is unconstitutionally
vague and overbroad. In particular, the Ninth
Circuit found that the language criminalizing
images that appear to be of a minor or convey the
impression of being child pornography was too
vague and overbroad to be sustained under First
Amendment scrutiny. The Ninth Circuit posited
that when no actual children were used in the
creation of the pornography, the effect was
censorship for the purpose of controlling an evil
thought, an insufficient rationale under the
First Amendment. 198 F.3d at 1094-97. The Ninth
Circuit seems to imply that there is no victim
when the images are computer-generated. To the
extent the Supreme Court decides otherwise, that
may help shape the idea of who is a victim of
child pornography. But whether the Supreme Court
finds that society is a victim of virtual child
pornography is not necessarily dispositive of who
the primary, direct victim is here, where we have
real, identifiable prepubescent minors depicted.




  Posner, Circuit Judge, with whom Manion, Circuit
Judge, joins, dissenting from the denial of
hearing en banc./1 This case is well worth the
attention of the full court. It requires us to
consider why child pornography, a growing subject
of federal criminal prosecution, has been crim-
inalized. It is true that the constitutionality
of a statutory provision similar to the one under
which the defendant was convicted is now before
the Supreme Court, see Free Speech Coalition v.
Reno, 198 F.3d 1083 (9th Cir. 1999), cert.
granted under the name Ashcroft v. Free Speech
Coalition, 121 S. Ct. 876 (2001), but that is an
argument at most for granting hearing en banc but
postponing the hearing till the Court’s decision
is handed down; for it is entirely possible that
the decision, if it reverses the Ninth Circuit,
will have no effect on our case.

  The panel opinion answers the question I have
put of why child pornography is criminal by
saying that Congress wants to protect the chil-
dren who are used in the production of such
pornography; other concerns to which such pornog-
raphy might give rise are not identified by the
panel and are dismissed by it as distinctly
secondary. The government in its brief goes so
far as to state that the children used in the
production of pornography are "the victims" of
child pornography, period, the implication being
that Congress had no other consequences of child
pornography in mind in deciding to criminalize
it. This is a complete misunderstanding of the
statute under which Sherman was convicted, 18
U.S.C. sec. 2252A, as is evident from the text
and the legislative history, S. Rep. No. 358,
104th Cong., 2d Sess. (1996), both of which the
government considerately printed in the appendix
to its brief.

  Sherman was convicted of three counts of pos-
sessing child pornography. Each count involved
photographs of different children, but he asked
that the counts be "grouped" for purposes of
sentencing. The federal sentencing guidelines
forbid grouping unless the counts involve "the
same victim." U.S.S.G. sec. 3D1.2(b). Application
Note 2 to this guideline explains that "the term
’victim’ is not intended to include indirect or
secondary victims. Generally, there will be one
person who is directly and most seriously affect-
ed by the offense and is therefore identifiable
as the victim. For offenses in which there are no
identifiable victims (e.g., drug or immigration
offenses, where society at large is the victim),
the ’victim’ . . . is the societal interest that
is harmed. In such cases, the counts are grouped
together when the societal interests that are
harmed are closely related." There’s a bit of a
logical gap here; "secondary victims" are not to
be considered in deciding whether to group of-
fenses but on the other hand it is implied that
this is true only if there are no identifiable
victims--yet secondary victims might be identifi-
able. Since drug and immigration offenses, as I’m
about to show, often do have identifiable second-
ary victims yet are offered as paradigmatic
examples of "groupable" offenses, I believe that
if the child pornography offense in section 2252A
of the federal criminal code is like the drug
offenses in the code, the primary "victim" is
society at large. And as it is the same victim in
all three counts, Sherman is entitled to have
them grouped (with what effect on his sentence
the briefs do not say) without regard to the
presence of identifiable secondary victims.

  I think that the offense in section 2252A is
more like a drug offense than it is like such
offenses as murder and robbery, with their clear-
ly identifiable "primary" victims, and that the
children used in the pornography are merely the
secondary victims, much like many of the people
employed in the drug trade--the "mules" who die
when the bags of cocaine that they’ve swallowed
burst, the wives and girlfriends who are roped
into assisting their husbands or boyfriends in
the drug trade, the drug dealers killed in gang
wars, and the addicts who turn to selling drugs
to support their habit. Nominally, most of these
are "consenting adults," but, realistically, many
are coerced or inveigled into criminal participa-
tion. Yet the principal concern behind the crim-
inalization of drug dealing is not with any of
these unfortunates; it is with the consumption of
the drugs and with the entire range of conse-
quences thought to flow from that consumption.
Similarly, many illegal immigrants are abused,
sometimes even enslaved, by employers or by the
traffickers in illegal immigrants, but the chief
concern behind the restrictions on immigration is
not with those unfortunates but with the effect
of unrestricted immigration on citizen employ-
ment, on crime, and on welfare and other govern-
ment programs.

  The adult men and women who perform in porno-
graphic films may be degraded, exploited, and
therefore victimized by their participation in
the production of pornography, as argued in
Catharine A. MacKinnon, Only Words (1993), but
they are not the primary victims. No more are the
children used in the production of pornography
the primary victims, at least in the judgment of
Congress. We know this from the fact that as part
of the Child Pornography Prevention Act under
which Sherman was convicted Congress amended the
definition of child pornography to make clear
that it includes pornography created by means of
realistic computer simulations or by using adults
made up to look like children. See 18 U.S.C. sec.
2256(8), which defines "child pornography" for
purposes of section 2252A. Congress did not
prescribe a lesser sentence for child pornography
the production of which does not involve the use
of children; the sentencing provisions of the
statute are the same regardless of whether chil-
dren are used. And 18 U.S.C. sec. 2255 creates a
private civil remedy for children who are victims
of violations of the various child-pornography
statutes, expressly including section 2252A; most
of these are children molested by people like
Sherman who traffic in or purchase pornographic
images, as distinct from the children used in the
making of those images.

  The Senate Report, which the government treats
as authoritative regarding the purpose of the
statute, states that "computer-generated child
pornography poses the same threat to the well-
being of children as photographic child pornogra-
phy," S. Rep. No. 358, supra, at 15 (emphasis
added). This statement would be nonsense if the
government’s brief were correct in saying that
"the victims" of child pornography are the chil-
dren used in the making of it. The Senate Report
makes clear that the principal concern behind
criminalizing child pornography is the fear that
it incites child molestation; and both "the
effect of visual depictions of child sexual
activity on a child molester or pedophile using
that material to stimulate or whet his own sexual
appetites" and "the danger to children who are
seduced and molested with the aid of child sex
pictures [are] just as great when the child
pornographer or child molester uses visual depic-
tions of child sexual activity produced wholly or
in part by electronic, mechanical, or other
means, including by computer, as when the materi-
al consists of unretouched photographic images of
actual children engaging in sexually explicit
conduct." Id. at 2. From the parity of concern
that the statute and the legislative history
express with respect to simulated and actual
pornography we can infer that the primary victim
is not the child used in the pornography but the
child seduced or molested by a pedophile stimu-
lated by such pornography. And not just that
child, but the adult population; for we should be
realistic and acknowledge that sheer disgust at
people who have a sexual interest in prepubescent
children is a principal motivation for such
legislation. This is further evidence that the
children used in the making of child pornography
are not the primary victims, that the primary
victims are a larger and more diffuse group, as
in the case of drug and immigration offenses; or
so at least that this is what Congress believes,
which is all that matters. What the actual conse-
quences of child pornography are I do not know;
maybe the primary victims are the children used
to make such pornography (maybe, for that matter,
they are the only victims--maybe child pornogra-
phy is a sex substitute rather than an
incitement-- apart from disgusted adults). That
is not the issue. The issue is whom the statute
deems the primary victims to be. Of that there is
little doubt.

  Since the children used in making child pornog-
raphy are victims, albeit not the primary victims
in the eyes of Congress, it may seem paradoxical
to argue that merely because there are other
victims Sherman should get a lighter sentence
through grouping. But grouping is necessary to
avoid results that I am sure even my colleagues
on the panel would regard as absurd. In United
States v. Richardson, 238 F.3d 837, 839 (7th Cir.
2001), the defendant had downloaded more than
70,000 separate photographic images of child
pornography--if a different child had been used
to make each of those images, would that mean
that there were 70,000 separate victims of the
defendant? Granted, extra counts can never re-
quire the addition of more than five additional
offense levels. U.S.S.G. sec. 3D1.4. But the
background note to this guideline suggests that
the presence of additional victims may warrant
the sentencing judge in departing upward from the
guideline sentence. The result would be the
imposition in many and perhaps most cases of the
statutory maximum penalty (15 or 30 years, de-
pending on whether the defendant is a recidivist,
18 U.S.C. sec. 2252A(b)(1)), if the analysis by
the panel is correct.

  One last point: At the end of its opinion, the
court warns the government against using child
pornography in stings of suspected violators of
the child pornography statutes, since the sting
inflicts on the children used in the pornography
the same "haunting" injury (the embarrassment to
the child, perhaps after he has grown up, of
being recognized in a pornographic image by
people who know him) that is one of the ways in
which child pornography is believed to harm the
children used in its production. The warning is
empty, since, as the court recognizes, we have no
authority to reverse a conviction because of
governmental misconduct unless the defendant’s
rights are violated, not the rights of third
parties.

FOOTNOTE

/1 I am authorized to state that Judge Evans joins
the final paragraph of this dissent.
