
USCA1 Opinion

	




          March 2, 1994                              UNITED STATES COURT OF APPEALS                                   FOR THE FIRST CIRCUIT                                   ____________________               No. 92-2003                                      UNITED STATES,                                         Appellee,                                            v.                                    DANIEL A. GENDRON,                                   Defendant, Appellant.                                   _____________________                                       ERRATA SHEET                    Please  make the following correction in the opinion in               the above case released on February 28, 1994:               Appendix,  Page 44,  line 4:   insert  the word  "suspected"               before the word "child".                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2003                                    UNITED STATES,                                      Appellee,                                          v.                                  DANIEL A. GENDRON,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Jose Antonio Fuste,* U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                                Boudin, Circuit Judge,                                        _____________                           Pollak,** Senior District Judge.                                     _____________________                                 ____________________            Jonathan S. Sales, by Appointment of the Court, with  whom The Law            _________________                                          _______        Office of William P. Homans, Jr. was on brief for appellant.        ________________________________            Robert E. Richardson  with whom A. John Pappalardo, United  States            ____________________            __________________        Attorney, and James F. Lang, Assistant United States Attorney, were on                      _____________        brief for appellee.                                 ____________________                                  February 28, 1994                                 ____________________        _____________________        *  Of the District of Puerto Rico, sitting by designation.        ** Of the Eastern District of Pennsylvania, sitting by designation.                       BREYER, Chief  Judge.  Daniel  Gendron ordered and                               ____________             received  a  videotape  that  contained  child  pornography.             Though he did not  know it, the firm that sent  him the tape             was part  of a law  enforcement operation designed  to catch             child  pornography buyers.   A  jury subsequently  convicted             Gendron of knowingly receiving child pornography through the             mails.    18 U.S.C.     2252(a)(2).    He now  appeals  that             conviction, claiming  that the child  pornography statute is             unconstitutional, that  the government  unlawfully entrapped             him,  and that the government's search warrant (for the tape             in  his  house)  was   constitutionally  defective.    After             considering  these and other  related claims, we  affirm the             conviction.                                          I                           The Statute's Constitutionality                           _______________________________                       The child pornography statute reads as follows:                            (a)  Any person who --                                 ______________                                 . . .                                  (2) knowingly receives,  or distributes,                                     __________________                                 any  visual  depiction   that  has  been                                 ________________________________________                                 mailed,   or   has   been   shipped   or                                 ______                                 transported  in  interstate  or  foreign                                              ______________                                 commerce,  or  which  contains materials                                 ________                                 which have been mailed or so  shipped or                                 transported, by  any means  including by                                 computer,  or  knowingly  reproduces any                                 visual  depiction  for  distribution  in                                 interstate  or foreign  commerce by  any                                         -3-                                          3                                 means including  by computer  or through                                 the mails, if --                                            __                                      (A)  the producing  of such  visual                                           ______________________________                                      depiction  involves  the use  of  a                                      ___________________________________                                      minor engaging in sexually explicit                                      ___________________________________                                      conduct; and                                      ____________                                      (B)  such  visual depiction  is  of                                           ______________________________                                      such conduct;                                      _____________                                 . . .                            shall be punished  as provided in  subsection                            _________________                            (b) . . . .             18 U.S.C.   2252(a)(2) (emphasis added).  Gendron points out             that  the  Ninth  Circuit has  interpreted  this  statute as             permitting a  conviction of a  person who does not  know the                                                       ______________             child-pornographic nature of the material received, and, for                                ______             that  reason, has  found it  unconstitutional.   See  United                                                              ___  ______             States v. X-Citement  Video, 982 F.2d 1285 (9th  Cir. 1992),             ______    _________________             petition for cert. filed, 62  U.S.L.W. 3360 (1993).  He says             ________________________             we should do the same.                       The Ninth Circuit, in United States v. Thomas, 893                                             _____________    ______             F.2d 1066  (9th Cir.), cert.  denied, 498  U.S. 826  (1990),                                    _____________             considered the scope  of the statute's word "knowingly."  It             held  that "knowingly"  modifies  only  the  statute's  word             "receives"  (or "reproduces"), not its subclause (A) or (B).             Consequently, it "does  not require" that a  defendant "knew             that the  pornography he .  . . received involved  a minor."                                         -4-                                          4             Id.  at 1070.   Two  years later,  in X-Citement  Video, the             ___                                   _________________             Ninth   Circuit  pointed  out   that  the  statute,   as  so             interpreted,  would   permit  conviction  of  a  person  who             "knowingly receives"  a video,  but does  not know  that the                                                 ______________             video   contains   child   pornography.      Because    that             interpretation would permit  conviction of a person  with an             innocent   state  of  mind,  the  court  found  the  statute             unconstitutional.  X-Citement  Video, 982 F.2d at  1292; see                                _________________                     ___             New  York  v.  Ferber,  458  U.S.  747,  765  (1982)  (child             _________      ______             pornography statutes must involve "some element of scienter"             to pass constitutional muster).                       We do  not accept  the Ninth  Circuit's conclusion             that the statute is unconstitutional, however, because we do             not agree  with the statutory  premise set forth  in Thomas.                                                                  ______             In  our  view,  and  in  the  view  of  all courts  to  have             considered the matter  since the X-Citement  Video decision,                                              _________________             see United  States v. Edwards, No. 92-CR-884, 1993 WL 453461             ___ ______________    _______             (N.D.  Ill. Nov.  4, 1993);  United States  v. Long,  831 F.                                          _____________     ____             Supp. 582 (W.D. Ky. 1993);  United States v. Kempton, 826 F.                                         _____________    _______             Supp. 386  (D. Kan.  1993); United States  v. Prytz,  822 F.                                         _____________     _____             Supp. 311  (D.S.C.  1993), the  statute's  word  "knowingly"             modifies   not  only  the  word  "receives,"  but  also  the             statute's   description  of   the  "receive[d]"   material's                                         -5-                                          5             pornographic content.   That  is to say,  we understand  the             statute  to require for conviction that the government prove             not only  that the defendant "knowingly receive[d]" material             that  he knows  contains a  "visual depiction"  of a  person             "engaging in sexually  explicit conduct," but also  that the             defendant  knows that  the person  so depicted  is  a minor.             Accord Edwards, 1993 WL 453461 at *5; Long, 831 F.  Supp. at             ______ _______                        ____             586; Kempton, 826  F. Supp. at 389;  Prytz, 822 F.  Supp. at                  _______                         _____             321.                       We  concede that  one  cannot know  automatically,             simply from the position of  the words in the sentence, just             ______________________________________________________             which   of  the   words  following   "knowingly"  the   word             "knowingly"  is meant to  modify.  However,  that linguistic             fact  simply reflects the  more basic fact  that statements,             and  parts of statements,  quite often derive  their meaning             from  context.  The  sentence "John knows  that people speak             Spanish in Tegucigalpa,  which is the capital  of Honduras,"             taken by itself,  leaves us  uncertain whether  or not  John             knows  that Tegucigalpa is the capital of Honduras; but, the             context  of  the story  in  which  the sentence  appears,  a             context  that includes  other sentences,  may  clear up  our             uncertainty and leave us with no doubt at all.                                         -6-                                          6                       Similarly,   when   courts    interpret   criminal             statutes,  they draw  upon context, including  the statute's             purpose  and   various  background   legal  principles,   to             determine which  states of  mind accompany  which particular             elements of  the offense.   Thus, courts normally  hold that             the prosecutor need  not prove the defendant's state of mind             in respect to  "jurisdictional facts" (for example,  that an             assault victim  was a federal officer, or that stolen checks                                   _______             moved in the mail),  whatever the mental state  required for                   ___________             the crime's other  elements.  E.g., United States  v. Feola,                                           ____  _____________     _____             420 U.S.  671, 676-86 (1975);  Barnes v. United  States, 412                                            ______    ______________             U.S. 837, 847 (1973); United States v. Blassingame, 427 F.2d                                   _____________    ___________             329, 330 (2d Cir. 1970),  cert. denied, 402 U.S. 945 (1971);                                       ____________             see generally S.  Rep. No. 307, 97th Cong.,  1st Sess. 72-74             _____________             (1981).   Context (what  ordinarily counts as  bad behavior;             the  reason  why  Congress  mentions  jurisdictional  facts;             etc.), in addition  to the position of words  in a sentence,             helps a court decide how, and when, to interpret statutes as             incorporating states of  mind.  See, e.g.,  Blassingame, 427                                             ___  ____   ___________             F.2d at 330.                       The  background  context  here  includes the  fact             that, when a criminal statute  is totally silent about state             of mind (as is commonly the case), courts nonetheless assume                                         -7-                                          7             that  Congress intended  to  require  some  kind  of  guilty             knowledge with respect  to major wrong-creating  elements of             major crimes.  Liparota v.  United States, 471 U.S. 419, 426                            ________     _____________             (1985)  (courts   should  not  read  criminal   statutes  as             "requiring no  mens rea");  United States  v. United  States                            ________     _____________     ______________             Gypsum Co., 438  U.S. 422, 438 (1978) (in criminal statutes,             __________             "far more than the simple omission of the appropriate phrase             from  the  statutory  definition  is  necessary  to  justify             dispensing  with  an  intent  requirement");  Morissette  v.                                                           __________             United States, 342 U.S. 246, 255-56, 263 (1952).             _____________                       Thus, had the word "knowingly" not appeared at all             in  the   child  pornography  statute,  courts   (while  not             insisting  upon  "knowledge"  of the  "interstate  commerce"             element of  the  offense,  see  supra pp.  5-6)  would  have                                        ___  _____             insisted nonetheless  that prosecutors prove  a guilty state             of mind  in respect to the nature of  the material.  For one             thing, the fact that the  material shows a child engaging in             sexually   explicit  activity   is  not   a  secondary,   or             jurisdictional, aspect  of the crime.   It is the  moral and             criminal heart  of the matter.   For another  thing, without             such a requirement, the statute would severely punish purely             innocent  conduct.   It  would reach,  for  example, a  post             office employee who  "knowingly distributes" mail  but knows                                         -8-                                          8             nothing of  its contents, or  a film developer who  for some             reason returns  an undeveloped roll  of film to  a customer.             Congress could  not have intended these results.   Pp. 8-12,             infra;  see United  States v.  Turkette, 452  U.S. 576,  580             _____   ___ ______________     ________             (1981)  (courts  must  construe  statutes  to  avoid  absurd             results); United States  v. Ferryman, 897 F.2d 584, 589 (1st                       _____________     ________             Cir.  1990) (same).   Finally,  as  X-Citement Video  itself                                                 ________________             demonstrates, to read this criminal statute as "requiring no             mens rea" (contrary  to Liparota,  471 U.S.  at 426)  likely             ________                ________             makes it unconstitutional.  See New York v. Ferber, 458 U.S.                                         ___ ________    ______             747, 765  (1982) (criminalization of child  pornography must             involve  "some  element  of  scienter  on  the  part  of the             defendant"); see  also Osborne  v. Ohio,  495 U.S.  103, 113                          _________ _______     ____             n.9,  115 (1990) (same;  "recklessness" suffices).   Such an             interpretation therefore violates courts'  duty to interpret             federal  statutes so  that  they  are  consistent  with  the             federal  Constitution whenever  possible.   E.g.,  Edward J.                                                         ____   _________             DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades             _______________    _________________________________________             Council, 485 U.S. 568, 575 (1988).             _______                       If we would interpret a silent statute as imposing                                               ______             a guilty  state of  mind requirement,  how could  Congress's             explicit use of the word "knowingly" eliminate it?  It seems             far  more likely that Congress used  the word "knowingly" to                                         -9-                                          9             make clear  that it  did intend to  insist that  a defendant                                  ___             know the  child-pornographic nature  of the  material.   The             legislative  history  confirms  this  view.    For  example,             Senator Roth, the author of the amendment which extended the             original bill  to distribution  as well  as production,  was             asked whether the amendment meant that                        the  distributor  or  seller  must  have                       [either]  actual   knowledge  that   the                       materials do contain  child pornographic                       depictions, or [that] he should have had                       such actual knowledge.             He responded:                       That  is   absolutely  correct.     This                       amendment,  limited  as  it  is  by  the                       phrase  "knowingly,"  insures  that only                                                           ____                       those sellers  and distributors  who are                       consciously and deliberately  engaged in                       ________________________________________                       the marketing  of child  pornography and                       ____________________________________                       thereby are actively contributing to the                       maintenance of this  form of child abuse                       are  subject to  prosecution under  this                       amendment.             123 Cong. Rec. 33,050 (1977) (emphasis added).  The language             to which Senator Roth referred  found its way into the final             law (with minor stylistic changes).  Compare 123  Cong. Rec.                                                  _______             33,061 (1977) (Senate bill with Roth amendment) with Pub. L.                                                             ____             No. 95-225,   2(a), 92 Stat. 7, 7-8 (1978) (final version).                       Furthermore,  the  Department   of  Justice  wrote             Congress a letter in which it told Congress that the                                         -10-                                          10                       use   of   the   word   "knowingly"   in                       subsection 2252(a)(1) is  appropriate to                       make it  clear that  the  bill does  not                                            ___________________                       apply to . . . innocent transporters who                       ________       _________________________                       have  no  knowledge  of  the  nature  or                       ________________________________________                       character  of  the   material  they  are                       _____________________________                       transporting.             S. Rep. No.  438, 95th Cong., 2d Sess.  29 (1978), reprinted                                                                _________             in 1978 U.S.C.C.A.N.  40, 64  (emphasis added)  [hereinafter             __             "Report"].   Thus, the Department and the amendment's author             agreed that the  point of the statute's explicit  use of the             word "knowingly" lies in the application of that word to the             nature of the material's contents,  not to the nature of its                                      ________             distribution or receipt.                        It  is true  that the Department  also said,  in a             different context,                       We assume that it was not  the intention                                             __________________                       of   the   drafters   to   require   the                       Government to  prove that  the defendant                                  _________       _____________                       knew the child was under age sixteen but                       ____________________________________                       merely to prove  that the child  was, in                       fact, less than age sixteen.               Id., 1978  U.S.C.C.A.N. at 64  (emphasis added).   In saying             ___             this, however, the  Department was referring to  a different                                                                _________             statutory  provision --  one that penalized  production, not                                                          __________             distribution.  And  Congress responded by dropping  the word             "knowingly"  from the production section of the statute, but             not from the distribution section.  H.R. Conf. Rep. No. 811,             ___             95th Cong., 2d  Sess. 5, reprinted in 1978  U.S.C.C.A.N. 69,                                      ____________                                         -11-                                          11             69;  compare Pub. L.  No. 95-225,    2251(a), 92  Stat. 7, 7                  _______             (1978) (knowledge  not required  in production  prosecution)             with id.    2252(a), 92 Stat. at 7-8  (knowledge required in             ____ ___             distribution or receipt prosecution).                       Finally,  we   concede  that  at  one   point  the             Department's  letter  suggests that  there  be  no knowledge             requirement  with  respect  to  age,  even for  distribution             prosecutions.  It said,                       To    clarify    the    situation,   the                       legislative history  might reflect  that                       the defendant's knowledge  of the age of                                       ________________________                       the  child  is  not  an  element of  the                       ________________________________                       offense,  but  that  the  bill  is   not                                                            ___                       intended    to    apply    to   innocent                       _______________________                       transportation with no  knowledge of the                                           ____________________                       nature  or  character  of  the  material                       _____________________                       involved.             Report,  supra, at  29, 1978  U.S.C.C.A.N.  at 64  (emphasis                      _____             added).    We have  found  nothing  in  the statute  or  the             legislative  history,  however,  to  suggest  that  Congress             adopted  this   recommendation.     To  the  contrary,   the             legislative history reveals  congressional awareness of  the             important constitutional differences between adult and child             pornography, the likely constitutional significance of  age,             and the concomitant  constitutional need for a  guilty state             of mind  requirement with  respect to age.   See,  e.g., 123                                                          ___   ____             Cong.  Rec. 33,048 (1977) (statement of Sen. Goldwater); id.                                                                      ___                                         -12-                                          12             at  33,051 (statement  of Sen.  Hatch).   In  light of  this             background,  we conclude that the statute's word "knowingly"             applies to age  as well as  to conduct.   That being so,  we             find  no  constitutional  obstacle  to  application  of  the             statute  in the  case before us.   (We note  that while this             opinion  was circulating in draft  form among the members of             this  panel, another panel  of this  court reached  the same             conclusion.  See United States v. Gifford, No. 93-1645, slip                          ___ _____________    _______             op. at 20-23 (1st Cir. Feb. __, 1994).)                                          II                                      Entrapment                                      __________                       The  evidence  in  this  case demonstrated  rather             convincingly that Gendron  ordered and received a  videotape             that he  knew  contained child  pornography.   Consequently,             Gendron's strongest  evidence-based claim does  not deny his             having   engaged  in  conduct  that  violates  the  statute.             Rather, he  argues that  the evidence  shows the  government             "entrapped"  him  into doing  so.   Gendron  notes  that the             entrapment  defense has  two parts:    (1) the  government's             "inducement"  of criminal behavior;  (2) by a  defendant who             was  not  "predisposed" to  commit  the crime.    See, e.g.,                                                               ___  ____             United States v.  Rodriguez, 858 F.2d 809,  812-15 (1st Cir.             _____________     _________             1988) (setting  forth elements  of  entrapment and  relevant                                         -13-                                          13             evidentiary  burdens).   Although  the court  submitted  the             entrapment issue to  the jury, which found  against Gendron,             he  argues  that the  evidence  did not  support  the jury's             verdict.   He says that  it did not allow  the government to             rebut his  claim of "inducement,"  nor was it  sufficient to             show  (beyond  a reasonable  doubt) his  "predisposition" to             commit  the crime.   Consequently, he says,  particularly in             light of  a recent Supreme  Court case that  accepted rather             similar arguments,  Jacobson v.  United States,  112 S.  Ct.                                 ________     _____________             1535 (1992), the law requires a judgment of acquittal.                       It may help in evaluating Gendron's argument if we             set  forth  in  simplified terms  our  understanding  of the             entrapment   defense   and   its   elements.     (For   more             comprehensive accounts, see, e.g., Rodriguez, supra; S. Rep.                                                _________  _____             No.  307,  97th Cong.,  1st  Sess. 118-30  (1981);  LaFave &             Scott,  Substantive  Criminal  Law    5.2  (1986);  Louis M.             Seidman,  The Supreme  Court, Entrapment,  and  Our Criminal                       __________________________________________________             Justice Dilemma, 1981 Sup. Ct. Rev. 111.)  The Supreme Court             _______________             has described  that defense  as resting  upon an  assumption             that  Congress,  when enacting  criminal statutes,  does not             intend the statute to apply to violations arising out of (1)             the  government's "abuse" of  its crime "detection"  and law                                _____             "enforcement"  efforts   by  "instigati[ng]"   the  criminal                                         -14-                                          14             behavior  and "lur[ing]" to commit the crime (2) persons who             are  "otherwise innocent."   Sorrells v. United  States, 287                   __________________     ________    ______________             U.S.  435, 448 (1932)  (emphasis added).   Consequently, the             entrapment  doctrine  forbids  punishment of  an  "otherwise                                                                _________             innocent"  person whose "alleged offense" is "the product of             ________                                          __________             the creative activity"  of government officials.  Id. at 451             _____________________                             ___             (emphasis added).  As the Supreme Court has recently stated,                       When   the   Government's    quest   for                       conviction leads to  the apprehension of                       an otherwise law-abiding citizen who, if                          _____________________________      __                       left to  his own  devices, likely  would                       _________________________                       have  never run  afoul of  the  law, the                       courts should intervene.             Jacobson, 112  S. Ct. at  1543 (emphasis added).   Since the             ________             Court has repeatedly expressed concern about both government                                                          ____             "abuse"  of  its enforcement  powers (or  the like)  and the                                                                  ___             "otherwise law-abiding  citizen" (or  the like),  it is  not             surprising that the defense has  two parts, one that focuses             upon  government  "inducement"   and  the  other  upon   the             defendant's "predisposition."                       In    describing    "inducement,"    courts   have             distinguished between  proper and  improper law  enforcement             activities.   It is  proper (i.e., not  an "inducement") for             the government to  use a "sting," at least  where it amounts             to providing a defendant  with an "opportunity" to  commit a             crime.  E.g.,  Sorrells, 287 U.S. at 441;  Sherman v. United                     ____   ________                    _______    ______                                         -15-                                          15             States,  356 U.S. 369,  372 (1958); United  States v. Coady,             ______                              ______________    _____             809 F.2d 119, 122 (1st Cir. 1987); United States v. Espinal,                                                _____________    _______             757 F.2d 423, 425 (1st Cir. 1985).  Without this kind of law             enforcement  weapon,  it  would often  prove  difficult,  or             impossible,  to stop  certain  seriously criminal  activity,             particularly  activity  involving drugs,  or  corruption, or             other crimes in which no direct participant  wants the crime             detected.  See  Hampton v. United States, 425  U.S. 484, 495                        ___  _______    _____________             n.7  (1976)  (Powell, J.,  concurring  in judgment);  United                                                                   ______             States v. Bradley, 820 F.2d 3, 6 (1st Cir. 1987).             ______    _______                       An  improper  "inducement," however,  goes  beyond             providing  an  ordinary  "opportunity to  commit  a  crime."             Jacobson, 112 S.  Ct. at 1541.  An  "inducement" consists of             ________             an "opportunity" plus something else -- typically, excessive                              ____             pressure  by  the  government  upon  the  defendant  or  the             government's  taking  advantage   of  an  alternative,  non-             criminal  type of  motive.    A  "sting"  that  combines  an             ordinary opportunity with these extra elements runs the risk             of catching  in the law  enforcement net not only  those who             might  well have  committed  the  crime  elsewhere  (in  the             absence of the  sting), but also those who  (in its absence)             likely would never have done so.  Insofar as the net catches                                         -16-                                          16             the  latter, it stretches  beyond its basic  law enforcement             purpose.                        Some examples of  improper "inducement" may  help.             Courts have found  a basis for sending  the entrapment issue             to  the jury (or finding entrapment  established as a matter             of law) where government officials:  (1) used "intimidation"             and "threats" against a defendant's family, United States v.                                                         _____________             Becerra, 992 F.2d 960, 963 (9th Cir. 1993); (2) called every             _______             day,   "began   threatening"   the   defendant,   and   were             belligerent,  United States v. Groll, 992 F.2d 755, 759 (7th                           _____________    _____             Cir.  1993);  (3)  engaged in  "forceful"  solicitation  and             "dogged   insistence    until   [defendant]    capitulated,"             Rodriguez,  858 F.2d  at 815;  (4)  played upon  defendant's             _________             sympathy  for informant's  common  narcotics experience  and             withdrawal  symptoms, Sherman, 356  U.S. at 373;  (5) played                                   _______             upon sentiment of "one former  war buddy . . .  for another"             to  get liquor (during  prohibition), Sorrells, 287  U.S. at                                                   ________             440-41; (6) used "repeated suggestions" which succeeded only             when defendant  had lost  his job and  needed money  for his             family's food  and rent, United  States v. Kessee,  992 F.2d                                      ______________    ______             1001, 1003 (9th Cir. 1993); (7) told defendant that she (the             agent) was suicidal  and in desperate need  of money, United                                                                   ______             States v.  Sullivan, 919 F.2d  1403, 1419 & n.21  (10th Cir.             ______     ________                                         -17-                                          17             1990).    The   background  and  context  of   each  example             illustrate possible  government  "overreaching"  --  of  its             having acted unfairly by employing                       methods of persuasion or inducement that                       create a substantial  risk that such  an                       offense  will  be committed  by  persons                       other than those who are ready to commit                       it.             Model Penal Code   2.13(1)(b).                       The  second   part  of  the   entrapment  defense,             "predisposition," is somewhat more  difficult to understand.             Some  Supreme Court  Justices (and  the  Model Penal  Code's             authors)  have  argued  that "predisposition"  is  not  even             relevant.   Rather,  they thought  that  the defense  should             focus  only  upon  government  impropriety,  preventing  law             enforcement officers  from  using methods  that  might  lead             ordinary  law-abiding citizens  astray,  whether or  not the             particular  defendant was "predisposed" to commit the crime.             See, e.g.,  Model Penal Code    2.13; Sorrells, 287  U.S. at             ___  ____                             ________             453  (Roberts,  J.,   joined  by  Brandeis  &   Stone,  JJ.,             concurring)  (arguing  for  this  "objective"  view  of  the             defense);  Sherman, 356 U.S. at 378 (Frankfurter, J., joined                        _______             by Douglas, Harlan & Brennan, JJ., concurring) (same).   The             Supreme Court itself,  however, has rejected this  view.  It             saw in the entrapment defense not so much a sanction used to                                         -18-                                          18             control  police  conduct,  but rather  a  protection  of the             ordinary    law-abiding    citizen     against    government             overreaching.   Consequently, it  saw  no need  to permit  a             defendant  to take  advantage  of  that  defense  unless  he             himself was such  a citizen.  See, e.g.,  Sorrells, 287 U.S.                                           ___  ____   ________             at 448;  Sherman,  356  U.S. at  376-77;  United  States  v.                      _______                          ______________             Russell, 411 U.S. 423, 433-35 (1973).  The upshot is that we             _______             must find out  just who that "innocent  person" is.   Who is             the   "otherwise   law-abiding   citizen"   who  would   not                    _________             "otherwise" have committed the crime?                         The  question's   difficulty  lies  in   the  word             "otherwise."  That word requires us to abstract from present             circumstances.   We cannot  simply ask whether,  without the             government's present  activity, the  defendant would  likely             have committed  the crime when  he did.  After  all, without                                       ____             the  government's  having  presented that  opportunity,  the                                                  ____             defendant,  no matter  how "predisposed,"  would  likely not             have  acted  then.    Nor  can we  simply  ask  whether  the                          ____             defendant  would have acted similarly at some other time had                                                                      ___             he faced similar  circumstances, since his present  behavior             _______________________________             virtually compels  an  affirmative answer  to  the  question             phrased in this way.                                         -19-                                          19                       The right way to ask the question, it seems to us,             is  to  abstract from  --  to  assume  away --  the  present             circumstances    insofar   as    they   reveal    government                              ___________________________________________             overreaching.    That is  to  say,  we  should ask  how  the             ____________             defendant  likely   would  have   reacted  to   an  ordinary                                                                 ________             opportunity to commit  the crime.  See Jacobson,  112 S. Ct.                                                ___ ________             at 1540  n.2.   By  using the  word "ordinary,"  we mean  an             opportunity  that  lacked  those  special  features  of  the             government's conduct that made of it  an "inducement," or an             "overreaching."   Was the defendant "predisposed" to respond             affirmatively to a proper, not to an improper, lure?                                  ______            ________                       This way of  looking at the  matter seems to  flow             from the  way in  which the Supreme  Court has  resolved the             clash  between   "objective"  and   "subjective"  views   of             entrapment --  at least if  one looks at that  resolution as             simply denying the defense to one whom it is not designed to             help, namely the kind  of defendant who (without a  "sting")             might  well be  out committing  crimes  of the  sort that  a             "sting"  seeks to  stop.    See Russell,  411  U.S. at  434.                                         ___ _______             Further,  our  effort  to  define  "predisposition"  through             reference to the  nature of the government  conduct reflects             the  fact  that,  despite  partial  descriptions  that focus             primarily upon  the defendant's  state  of mind,  government                                                               __________                                         -20-                                          20             misconduct  lies at  the heart  of  the entrapment  defense.             Were that  not so --  were the issue simply  the defendant's             state of  mind --  the law would  permit an  innocent minded             defendant to raise an entrapment claim when a private person                                                           _______             "induced" him  (through similar  "overreaching" conduct)  to             commit a crime.  But the  law does not authorize the defense             in  those circumstances,  however  "outrageous" the  private             person's conduct.   E.g., Russell,  411 U.S. at  433; United                                 ____  _______                     ______             States  v.  Jones, 950  F.2d  1309 (7th  Cir.  1991); United             ______      _____                                     ______             States v.  Bradley, 820  F.2d 3, 6  (1st Cir.  1987); United             ______     _______                                    ______             States  v. Emmert,  829  F.2d 805  (9th  Cir. 1987);  United             ______     ______                                     ______             States v.  McLernon, 746 F.2d 1098 (6th  Cir. 1984); Whiting             ______     ________                                  _______             v. United States, 321 F.2d 72, 76 (1st Cir. 1963).                 _____________                       Finally,  this   way  of  phrasing   the  question             prevents one from concluding automatically, simply from  the             fact  that the defendant  committed the  crime, that  he was             "predisposed" to commit it.  At the same time, if the answer             to the  question so  phrased is  affirmative, the  defendant             would seem to be the sort of person (and his conduct in this             instance is the  sort of conduct) that  the criminal statute             intends to punish.  He is, in other words, someone who would             likely commit the crime under  the circumstances and for the             reasons   normally  associated  with  that  crime,  and  who                                         -21-                                          21             therefore poses  the  sort of  threat  to society  that  the             statute  seeks to control, and which the government, through             the "sting," seeks to stop.                       We  turn now  to Jacobson  v.  United States,  the                                        ________      _____________             recent  child pornography case where the Supreme Court found             entrapment as  a  matter  of law,  and  upon  which  Gendron             heavily  relies.  Government agents found Jacobson's name on             a bookstore mailing list  that indicated that the store  had             mailed photos  of naked  children to  Jacobson.   Government             agents then sent Jacobson letters from fictitious people and             organizations, soliciting orders for  child pornography.  In             three  respects,  however,  they did  more  than  provide an             ordinary opportunity to  buy child pornography:   First, the             solicitations reflected a psychologically "graduated" set of             responses to Jacobson's own noncriminal responses, beginning             with  innocent lures and  progressing to frank  offers.  The             government started  with a "sexual  attitude questionnaire,"             which  elicited a  general interest  in  "pre-teen sex";  it             followed  with   letters  containing   general,  nonexplicit             references implying a  possibility of child pornography;  it             then  sent  Jacobson  more   personal  correspondence;  and,             finally   (but   after   Jacobson   had   discontinued   the             correspondence), it  sent him child  pornography catalogues.                                         -22-                                          22             112  S. Ct. at 1538-39.  Second, the government's soliciting             letters  sometimes depicted  their senders as  "free speech"             lobbying organizations and  fighters for the "right  to read             what  we  desire";  they asked  Jacobson  to  "fight against             censorship  and the infringement of individual rights."  Id.                                                                      ___             at 1538, 1542.  Third, the government's effort to provide an             "opportunity"  to buy child  pornography stretched  out over             two and  a half  years.  Taken  together, one might  find in             these three sets of circumstances -- the graduated response,             the long time  period, the appeal to a  proper (free speech)             motive --  a substantial risk  of inducing an  ordinary law-             abiding person to commit the crime.  Indeed, the  government             conceded  in  Jacobson   that  its  methods  amounted,   for                           ________             entrapment  purposes, to an  improper "inducement."   Id. at                                                                   ___             1540 n.2.                       Jacobson's  importance,   however,  concerns   the                       ________             "predisposition"  part of the entrapment defense.  The Court             held  that  the  evidence,  as  a matter  of  law,  required             acquittal  because a reasonable jury would have had to doubt             Jacobson's predisposition.   The evidence  of predisposition             consisted of  two facts:    (1) that  before the  government             became  involved  Jacobson  was  on  a  private  bookstore's             mailing  list for dubious photos; and  (2) that he responded                                         -23-                                          23             affirmatively to the government's solicitations.  The  first             fact,  the Court wrote, showed little about a predisposition             to act unlawfully because ordering the photos was lawful  at                    __             the time.  112 S. Ct. at 1542.  The second,  placing orders,             could  not  show  how  Jacobson  would  have  acted had  the             solicitation lacked the  three elements  we just  mentioned,             namely, the improper appeals to anti-censorship motives, the             graduated response,  and the  lengthy time  frame.   Id.  at                                                                  ___             1542-43.     The  government   therefore   failed  to   show             "predisposition" (beyond  a reasonable  doubt).  That  means             (as we understand it) that the government's evidence did not             show how Jacobson would have acted had he been faced with an             ordinary "opportunity"  to commit  the crime  rather than  a             special "inducement."                       Gendron's  case is  similar  to Jacobson's  in two             respects.   The government initially found Gendron's name on             a "naked children" mailing list, and the government sent him             child pornography solicitations over a fairly long period of             time (one  of  the "sham"  companies  was also  involved  in             Jacobson).  There are, however, two critical differences.             ________                       First,  any governmental  "overreaching" here  was             less extensive  than in  Jacobson.   The government  neither                                      ________             "graduated" its  responses  (from  innocent  lure  to  frank                                         -24-                                          24             offer) nor, with one exception,  did it appeal to any motive             other  than  the  desire  to see  child  pornography.    The             exception  consists  of  one solicitation  (also  present in             Jacobson) in which the government's sham company referred to             ________             "hysterical nonsense"  about pornography, and asked  why the             government  was  "spending millions  of dollars  to exercise             international censorship  while  tons of  drugs"  enter  the             country  "easily."  Nonetheless, here the government did not             disguise  itself as a "sexual rights" lobbying organization,             seeking to lobby  Congress to remove restraints  and funding             its efforts through  pornographic catalogue sales.   Nor did             the government ask  Gendron to commit the crime  as a matter             of principle.   See 112 S. Ct. at  1538-39, 1542.  Since the                             ___             "overreaching" here was far less extensive than in Jacobson,                                                                ________             there   is   less   reason   to   believe   that  government             "overreaching" (i.e.,  an improper "inducement")  could lead             an  "otherwise innocent"  person to  commit the crime.   See                                                                      ___             Gifford, No. 93-1645, slip op. at 15-16.             _______                       Second, the  record contains  substantial evidence             of  Gendron's state  of  mind;  that  evidence  permits  the             conclusion  that (inducement or not) he was "predisposed" to             commit the crime.  In late 1986, when Gendron first received             a verbally explicit  "child pornography" catalogue  from the                                         -25-                                          25             government's sham company, he placed an order accompanied by             a letter in which he said,                       I  have  finally   found  the  kind   of                       educational material I've  been dreaming                       of  possessing for quite some time.  I .                       .  . [am so] excited that I have decided                       to order two of your titles . . . .             The government did not fill the order, but three years later             Gendron responded to a letter  from another sham, a  pretend             foreign  company, which spoke  of "hard to  obtain erotica."             He wrote,                       I am very interested  in the other  part                       of your services that are very difficult                       to  obtain in  my country.  . .  . I  am                       becoming   very    bored   with    adult                       pornography .  . . .  I  like very young                       girls  only and  color videos.   Can you                       help me.             The sham firm  responded with an explicit  child pornography             catalogue,  and  Gendron  ordered  several  of  the  titles.             (Again the government did not fill the order.)  A few months             later the  government sent  Gendron a  third explicit  child             pornography catalogue.   Gendron sent  back an  order and  a             check.  Two months later, he wrote again, asking if the firm             had "forgotten" his order, making clear that he still wanted             "this type of educational materials," stating, "don't worry,             I am  not connected  in any way  with law  enforcement," and             adding "Please Hurry."  (This time the government filled the                                         -26-                                          26             order with the video that  led to this prosecution.)  Unlike             Jacobson's correspondence, Gendron's  correspondence reveals             only a desire to view child pornography; it contains nothing             like Jacobson's urging  of a "counter attack"  against those             "who are determined to curtail our freedoms."  112 S. Ct. at             1538.  (See Appendix for a detailed chronology of the events             in Gendron's case.)                       This evidence, taken together, reveals a defendant             who met an initial opportunity to buy child pornography with             enthusiasm,    who  responded  to  each  further  government             initiative  with a purchase order, and who, unlike Jacobson,             showed  no   particular  interest   in  an   anti-censorship             campaign.  This evidence, as we have said, permits a jury to             find (beyond  a reasonable  doubt) that  Gendron would  have             responded   affirmatively   to   the    most   ordinary   of             opportunities, and, hence,  was "predisposed" to  commit the             crime.   We therefore  find the  jury's entrapment  decision             lawful.                                         III                                  Search and Seizure                                  __________________                       Government  agents searched  Gendron's house,  and             seized  the  primary  piece  of  evidence  (the  videotape),                                         -27-                                          27             pursuant to a warrant.  That warrant authorized (1) a search             of                       the residence of Daniel  A. Gendron, 105                       Winthrop Street, Rehoboth, Massachusetts                       02769;             for (2)  a "VHS videocassette  labeled PTL (1)"  and related             items; (3) "after delivery by  mail to and receipt by Daniel                         ________________________________________________             Gendron" of a specifically described parcel  (containing the             _______             tape) until  the expiration of  the warrant (ten  days after             its issuance).  Gendron concedes that  the warrant meets the             Constitution's  two basic  requirements:   its  issuance was             supported  by "probable cause"  to believe that  evidence of             criminal  activity  would  exist  in  his  house  after  the             delivery of the  tape; and it "particularly  describ[es] the             place to be  searched, and the .  . . things to  be seized."             U.S. Const.  amend. IV.   He claims  that it  is nonetheless             invalid  because it is an "anticipatory warrant" which fails             adequately to specify the time at which it will take effect.                                       ____             Gendron  cites  in  support  a  recent  case  decided  by  a             different   panel   of   this  court,   United   States   v.                                                     _______________             Ricciardelli, 998 F.2d 8 (1st Cir. 1993).             ____________                       In  general, the  simple fact  that  a warrant  is             "anticipatory"  --  i.e.,  that it  takes  effect,  not upon             issuance,  but  at  a  specified  future  time  -- does  not                                         -28-                                          28             invalidate a warrant  or make it somehow suspect  or legally             disfavored.  Warrants  often do specify that  they will take             effect upon issuance.  But the Constitution imposes no  such             requirement.   Rather,  it says  that a  search must  not be             "unreasonable,"  and  that  warrants must  be  supported  by             "probable cause."  U.S. Const.  amend. IV.  There is nothing             unreasonable  about authorizing a  search for  tomorrow, not             today, when  reliable information indicates  that, say,  the             marijuana will reach the house, not now, but then.  Nor does             it  seem  automatically  unreasonable to  tie  the warrant's             search authority to the future event that brings with it the             probable cause (e.g., the time of "delivery of a large brown             package   addressed   to   X   with  return   address   Y").             Ricciardelli, 998 F.2d at 10-11.  In principle, the use of a             ____________             "triggering event"  can help  assure that  the search  takes             place   only  when   justified  by  "probable   cause";  and                     ____             anticipatory warrants may thereby offer greater, not lesser,             protection  against  unreasonable  invasion  of a  citizen's             privacy.  As one commentator has put it,                       as a  general proposition the  facts put                       forward  to   justify  issuance   of  an                       anticipatory warrant are  more likely to                       establish that probable cause will exist                       at  the  time  of  the  search  than the                       typical  warrant based  solely upon  the                       known  prior location of the items to be                       searched at the place to be searched.                                         -29-                                          29             2  Wayne R. LaFave,  Search and Seizure    3.7(c), at 97 (2d             ed.              1987).      Were  "anticipatory   warrants"   unlawful,  law             enforcement agents would  have to wait until  the triggering             event  occurred; then,  if  time did  not  permit a  warrant             application,  they would have to forego a legitimate search,             or, more  likely, simply  conduct the  search (justified  by             "exigent  circumstances") without any  warrant at all.   See                                                                      ___             Vale  v.  Louisiana, 399  U.S. 30,  34-35 (1970);  2 LaFave,             ____      _________             supra,   6.5.   We are not surprised  that courts have found             _____             "anticipatory warrants,"  considered as  a class,  perfectly             consistent with  the Constitution.  E.g.,  Ricciardelli, 998                                                 ____   ____________             F.2d at  10-11; United States  v. Garcia, 882 F.2d  699, 703                             _____________     ______             (2d Cir.  1989); United States  v. Goodwin, 854 F.2d  33, 36                              _____________     _______             (4th Cir. 1988); United States v. Hale, 784 F.2d 1465, 1468-                              _____________    ____             69  (9th Cir.  1986); People  v. Glen,  282 N.E.2d  614, 617                                   ______     ____             (N.Y. 1972).                       Gendron  argues,   however,  that   the  warrant's             reference  to "delivery  by mail  to  and receipt  by Daniel             Gendron"  does  not  describe  with sufficient  clarity  its             "triggering event," i.e.,  the particular time when  it will             take  effect.   We agree  with Gendron  that a  warrant must             clearly  say when it  takes effect.   We  also agree  that a                                         -30-                                          30             warrant that says  it takes effect upon the  occurrence of a             future event runs a greater risk of ambiguity than a warrant             that refers only  to a specific day, month, and  year (as do             ordinary search warrants).  That is why courts have required             that the conditions upon  which anticipatory warrants become             effective  be   "explicit,  clear,   and  narrowly   drawn."             Ricciardelli,  998 F.2d at  12 (quoting Garcia,  882 F.2d at             ____________                            ______             703-04).  That  said, however, we do not find any fatal flaw             in the warrant's description.                       First,  the  law's  requirement  with  respect  to             specificity of time  must be one of  reasonable specificity.                                                  __________             Glen, 282 N.E.2d at 619 (warrant should require search to be             ____             "reasonably contemporaneous" with  arrival of contraband); 2             LaFave, supra,    3.7(c), at 99 & n.103 (citing  Glen).  One                     _____                                    ____             can understand how  a specificity requirement in  respect to             time, like  those in  respect to "place  to be  searched" or             "things to  be seized," U.S.  Const. amend. IV,  might limit             the  discretion of law  enforcement officers to  decide when             and  where and what  to search, thereby  avoiding the "hated             general  writs of  assistance  of pre-Revolutionary  times,"             Glen,  282  N.E.2d at  617,  and assuring  the  existence of             ____             "probable  cause."  2 LaFave, supra,    3.7(c), at 99; id.                                             _____                    ___             4.5,  at 207;  id.    4.6(a), at  236.   But we  know  of no                            ___                                         -31-                                          31             justification  for   a  stricter  standard   in  respect  to                                     ________             specificity  of  time  than  in respect  to  the  other  two             (constitutionally     referenced)     search     parameters.             Ricciardelli, while stating that the contraband must be on a             ____________             "sure and irreversible course" to the place to  be searched,             998 F.2d at 13, did not purport to set forth any special new                                                              _______             rule requiring  more  specificity where  time, rather  than,             say, place, is at issue.  To the contrary, Ricciardelli says                                                        ____________             that a warrant's restrictions  in respect to time  and place             should be "similar."  Id. at 12.                                   ___                       Second,  the law  tells  us that  we  are to  read             descriptions   in   warrants   (and   in  their   supporting             documents), not "hypertechnical[ly]," but in a "commonsense"             fashion.   United  States  v. Ventresca,  380 U.S.  102, 109                        ______________     _________             (1965); see also,  e.g., United States  v. Bianco, 998  F.2d                     ________   ____  _____________     ______             1112,  1116-17 (2d Cir.  1993); In re  Grand Jury Subpoenas,                                             ___________________________             926 F.2d 847, 855 (9th  Cir. 1991); United States v. Antone,                                                 _____________    ______             753  F.2d  1301,  1307 (5th  Cir.  1985);  United States  v.                                                        _____________             Charest, 602  F.2d 1015,  1017 (1st Cir.  1979).  Read  in a             _______             commonsense fashion, the  warrant's words seem specific  and             clear.  Gendron takes the word "receipt," however, from  the             phrase "delivery by mail to  and receipt by Daniel Gendron,"             and argues  that it is  fatally ambiguous  because it  might                                         -32-                                          32             mean  "receipt" anywhere,  say,  downtown  or  at  the  Post             Office.   But, as we  have pointed out,  see supra pp.  5-6,                                                      ___ _____             context helps  to provide  a  word's meaning.   The  context             includes, at least, the rest of the warrant, which describes             Gendron's  house, makes clear that the  object of the search             is  a video  that will  arrive at  that house  by mail,  and             mentions  "delivery by mail"  to that  house.   Common sense             suggests that  the words  "receipt by  Daniel Gendron"  also             refer to receipt at that  house, and not to receipt downtown             or  at  the Post  Office,  or  (to  use our  own  farfetched             example) in Okinawa.                       We recognize that it is logically possible to read             the word  "receipt" as if  it referred to  receipt somewhere             other than at  Gendron's house.  But that  logical fact does             not make the word any less specific.  The  logical fact that             the world undoubtedly contains people named "Daniel Gendron"             other  than the  defendant  here  does  not  mean  that  the             warrant's triggering event, "delivery by mail to and receipt             by Daniel Gendron," is ambiguous because it does not specify             that  the "Daniel  Gendron" to  whom  it refers  is the  one             residing at the address to be searched.  Despite the logical             possibility that the post office might accidentally  deliver             the  tape  to  some other  Daniel  Gendron,  thus apparently                                         -33-                                          33             fulfilling  the literal terms of the warrant, the warrant is             adequately specific  as to the  person to receive  the tape.             Specificity does  not lie  in  writing words  that deny  all             unintended  logical possibilities.   Rather,  it  lies in  a             combination of  language and context, which  together permit             the communication of clear, simple direction.  Any effort to             negate  all  unintended  logical possibilities  through  the             written word alone would produce linguistic complication and             confusion to the point  where a warrant, in  practice, would             fail to  give the  clear direction that  is its  very point.             That  is why  we  must avoid  reading  a warrant's  language             "hypertechnically."  See Ventresca, 380 U.S. at 109.                                  ___ _________                       Were it  not for  Ricciardelli, we  would end  the                                         ____________             discussion  here.      We  must   concede,   however,   that             Ricciardelli  found  unlawfully  ambiguous  a  warrant  with             ____________             virtually   identical   language,  namely,   language   that             triggered the warrant upon                       delivery  by  mail  to  and  receipt  by                       Steven Ricciardelli of the . . . package                       containing the videotape.             998 F.2d at  9.  We find a  significant difference, however,             in the factual context in which the warrant was issued.  The             Ricciardelli panel referred to what it considered a critical             ____________             fact:                                         -34-                                          34                       the (apparently significant) chance that                       the package  would not  be delivered  to                       Ricciardelli's   home   at  all   --   a                       possibility that [the postal inspectors]                       undeniably had envisioned.             Id. at 17.  The opinion also makes clear  that the "delivery             ___             by mail"  was by special  delivery with a  "return receipt,"             and  that the postal  inspectors had "contingency  plans" in             the  event that Ricciardelli  received the package somewhere             other than his home.  Id. at 9, 17 &  n.9.  (As it happened,                                   ___             the  "letter carrier  tried  to  deliver  the  package"  but             Ricciardelli  was not home,  so "the postman  left a notice"             that he  could "collect  the item at  the post  office," and             Ricciardelli, in fact,  did pick up the package  at the post             office, not at his home.  Id. at 9-10.)                                       ___                       In  light  of  these  background  facts,  one  can             understand  why  the  panel  might  have  thought  the  word             "receipt," in context, was ambiguous as to where the receipt             might  take place.    After all,  even  the highly  specific             language  in  this case  describing the  item to  be seized,             namely "VHS videocassette labeled PTL (1)," could be thought                                                         _____             ambiguous  if the  background of  this case  had revealed  a             serious  possibility of two such items (imagine that Gendron                                     ___             had worked for a  firm called "PTL Realty Co." and had taken             home a series  of demonstration videos).  This  is simply to                                         -35-                                          35             say that  background facts can  sometimes turn  hypothetical             possibilities, such as receipt in Okinawa or delivery to the             wrong Daniel  Gendron, into practical possibilities that, in             context,  might  mean  that  one  reading  a  warrant  in  a             "commonsense"  fashion  would nonetheless  find  significant             ambiguity.                         Here,   however,   no  background   fact   created             significant  ambiguity.     On  the   contrary,  the  postal             inspector's affidavit  specified that  the  parcel "will  be             placed  for routine delivery"  to Gendron "through  the U.S.             Postal Service,  Rehoboth, MA";  that after  the parcel  "is             delivered by mail and taken into the residence," there  will                               ____________________________             be "probable  cause to  believe" that  evidence of  criminal             conduct will be "located" in the house; and that                       surveillance will commence from the time                       the parcel  is placed  for delivery  [at                       the Rehoboth  Post Office]  and continue                       until the parcel  has been delivered  to                       105 Winthrop St., Rehoboth, MA,             with probable cause to search arising only "after the parcel                                                   ____             has  entered the premises"  (emphasis added).   Moreover, at                  ____________________             trial, the postal inspector testified that                       if Mr. Gendron was in Florida, we aren't                       entitled to  search  his  house  or  his                       parents' house.   Once it  was delivered                       into the house, then  the search warrant                       ______________                       became effective.                                         -36-                                          36             He added that the house was under surveillance because                       it  was  important to  us  that if  that                       piece  didn't get  delivered, you  don't                       execute the search warrant.             Tr.  at  115-16  (emphasis  added).    Consequently,  unlike             Ricciardelli,  nothing   in  the  record  here   suggests  a             ____________             background in which the warrant's words, adequately specific             in the context of the warrant, could, as a practical matter,             convey a different meaning.                       For these reasons, we distinguish Ricciardelli and                                                         ____________             find  that it does  not control the  outcome here.   To make             certain that our reading of the case is correct, however, we             have circulated a draft of this opinion to the entire court.             The  concurring  judge  in  Ricciardelli,  998  F.2d  at  17                                         ____________             (Torruella,  J., concurring) believes  that his  views there             would require  a holding  in Gendron's favor  here.   But, a             majority  of   the  court   agrees  with   our  reading   of             Ricciardelli which  distinguishes that  case from this  one.             ____________             See, e.g., United  States v.  Rivera, 994  F.2d 942,  950-51             ___  ____  ______________     ______             (1st Cir.  1993).   We  therefore  do not  accept  Gendron's             Fourth Amendment claim.                                          IV                                   Other Arguments                                   _______________                                         -37-                                          37                       Gendron  makes three  further  arguments, none  of             which requires extended discussion.                         1.   Jury Instruction.   Gendron  argues that  the                            ________________             trial  court should  have specifically  instructed the  jury             that it  must find he knew  the person depicted  on the tape             was under  the age  of 18.   Gendron  did not  ask for  this             charge, nor did he object to the instruction the judge gave,             which required the jury to  find that he "knew the character                                                       __________________             and nature of the material."   Nonetheless, he says that the             ___________________________             judge's "error"  was "plain."   Fed. R. Crim. P.  52(b); see                                                                      ___             generally Arrieta-Agressot v. United States, 3 F.3d 525, 528             _________ ________________    _____________             (1st Cir. 1993).  In context, however, we believe the charge             the judge gave made  the point that Gendron now  makes.  See                                                                      ___             Estelle  v. McGuire,  112 S.Ct.  475, 482  & n.4  (1991) (in             _______     _______             evaluating a jury  charge, court should ask  "'whether there             is  a reasonable likelihood  that the  jury has  applied the             challenged  instruction   in  a   way'  that  violates   the             Constitution,"  in light of "the context of the instructions             as  a  whole  and  the  trial  record")  (quoting  Boyde  v.                                                                _____             California, 494 U.S.  370, 380 (1990)).  The  jury was fully             __________             aware that  the issue was child pornography.   The remainder                                       _____             of the charge referred frequently to children.  (Indeed, the             film depicted  a  nine year  old  child.)     Thus,  in  all                                         -38-                                          38             likelihood, it  understood the words  "character and nature"             to encompass  age as  well as explicit  sexual acts.   Since             Gendron asked  for no  more and we  can find  no significant             likelihood of prejudice, there is  no plain error.  Arrieta-                                                                 ________             Agressot, 3 F.3d at 528.             ________                       2.   Closing  Statement.   Gendron  points to  two                            __________________             statements in  the  prosecutor's closing  argument that,  he             says, are factually erroneous and significantly prejudicial.             In  one instance,  the prosecutor  described  the item  that             Gendron  had ordered from  the private mail  order catalogue             (sometime before 1985) as follows:                        I  think  the  title of  it  was  Nancy.                       Nancy  is  described  as  13,  and   her                       friends  from  No.  6,  and   No.  6  is                       prepubescence.  Two pretty prepubescents                       are taught how to become geishas.   This                       10 year  old, Nancy, and her  friends, a                       10  year old having  sex with a  12 year                       old a  delicate blond at 12,  having sex                       with  her playmate,  7,  hide and  seek,                       combat, rock.   What is his interest  in                       this, ladies  and gentlemen?   Children.                       Female children.             In  fact,   the  record  contains   the  relevant  catalogue             descriptions, which read as follows:                       E-2 NANCY: 13,  and her friends from  #6                       _________                       THROB.     An  impish  10   year-old,  a                       delicate blonde of 12, and a fetching 10                       with  her playmate  of 7  hide-and-seek,                       tumble, and romp.                       J-6 KIMONO I: Two pretty pubescents  are                       ____________                       taught how to become geishas.  From full                                         -39-                                          39                       costume  and make-up  to  nudity.   Some                       censoring.             Gendron's  argument centers  on the  absence  of the  phrase             "having sex" in the actual descriptions.                         In the  other instance,  the prosecutor  described             the  pornographic tape that  the government sent  Gendron as             containing                       explicit depictions  of a  9 to  11 year                       old  girl  being raped,  being  sexually                       abused,  by teenage  boys  and an  adult                       male.             In  fact, the tape  does not contain  depictions of forcible             rape (although, as the government points out, its depictions             of a child engaging in sex amount to "statutory rape").                       We  agree  with   Gendron  that  the  prosecutor's             statements  were wrong  and  that she  should not  have made             them.   We cannot agree,  however, that they entitle Gendron             to a  new trial.  That is because  Gendron did not object to             the statements at  the time.  Had he done so, we are certain             that the district court would have ordered a correction, and             a correction would  have cured any harm by  pointing out the             facts.   In the  absence of an  objection, however,  we will             normally  not  order   a  new  trial   unless  there  is   a             "substantial chance  that absent  the error  the jury  would             have acquitted,"  or,  for  some  other reason,  we  fear  a                                         -40-                                          40             "miscarriage  of justice."  United States v. Young, 470 U.S.                                         _____________    _____             1,  15 (1985); Arrieta-Agressot, 3  F.3d at 528.   We see no                            ________________             such  miscarriage,   nor  any   significant  likelihood   of             acquittal, here.                         The  evidence in  this  case  was strong,  perhaps             overwhelming.   The  jury saw  portions of  the  tape, which             portrays a nine year old girl engaging  in sexually explicit             activities with teenage and adult men.  Gendron says nothing             to suggest that the tape leaves any doubt about the unlawful             nature of its  contents.  Thus, in this  particular case, we             do not think the  single use of the word "rape," forceful as             it is, could have had any significant prejudicial impact  on             the jury beyond the impact of the tape itself.  The question             of the videotape descriptions, because of their relevance to             the   "predisposition"  element   of  Gendron's   entrapment             defense, is  a little  closer.  But,  as we  have described,             supra pp.  24-26, the  evidence of  predisposition was  very             _____             strong.    We  do  not  believe the  misdescription  of  the             original  mail order  would likely  have  had any  practical             effect on the  jury's "no entrapment" finding,  particularly             because  the correct description  was admitted into evidence             and available to the jury.  In light of the strength  of the             government's case ("an  important factor in  considering the                                         -41-                                          41             likely  effect of  borderline  rhetoric," United  States  v.                                                       ______________             Mejia-Lozano, 829 F.2d 268, 274 (1st Cir. 1987)), whether we             ____________             consider the two misstatements  separately or together,  the             "error" they reflect is not "plain."                       3.  Other Erotica.  Gendron argues that  the court                           _____________             erred in allowing, as evidence  of "predisposition," various             "child erotic" (but not illegal)  items seized at his  home.             He does  not seriously argue,  however, that the  items were             not relevant.   See  Jacobson, 112 S.  Ct. at  1542 (stating                 ________    ___  ________             that similar material "by itself" was not sufficient to show             predisposition).    Rather,  he   says  its  usefulness  was             outweighed by its  tendency to prejudice the jury.   Fed. R.             Evid.  403.   The balancing  at issue,  however, is  for the             district court, not this court.  United States  v. Williams,                                              _____________     ________             985  F.2d  634,  637  (1st  Cir. 1993).    The  court  might             reasonably  have concluded, in  light of  the nature  of the             basic evidence  in the case (the videotape itself), that the             nature  of  the  additional child-erotic  material  made  no             significant prejudicial  difference.   We find  no abuse  of             discretion in this determination.                       Gendron's additional arguments are without merit.                       For  the  above  reasons,  the  judgment  of   the             district court is                                         -42-                                          42                       Affirmed.                       ________                                         -43-                                          43                       POLLAK, District Judge (concurring).  I concur  in                               ______________             the  judgment of  the  court and  in  the court's  carefully             wrought and  illuminating opinion.   The opinion  addresses,             comprehensively  and  in  painstaking  detail,  all  of  the             substantial questions  presented.  I  would add  only a  few             words.                       First.    As  the  court's  opinion  makes  clear,                       _____             constitutional  difficulties  of   serious  dimension  would             attend the child-pornography statute if, in prosecutions for             knowing  receipt of a "visual depiction" of "a minor engaged             in sexually explicit  conduct," 18 U.S.C.    2252(a)(2), the             phrase "knowingly receives" were  not construed as requiring             the government to establish, beyond a reasonable doubt, that             the  "visual depiction" was one which  the defendant knew to             involve, not just pornography, but child pornography.  These                                                _____             potential  constitutional difficulties  are obviated  by the             court's persuasive demonstration of "congressional awareness             of the  important constitutional  differences between  adult             and child pornography,"  with the result that, as  the court             concludes,  the proper  reading of  what  Congress wrote  is             "that the statute's word 'knowingly' applies to age as  well             as conduct."                                         -44-                                          44                       In  the case  at  bar, appellant  Gendron contends             that the pertinent  aspect of the charge given  by the trial             court -- namely  that the government  was required to  prove             that Gendron "knew the character and nature of the material"             -- was deficient in that  it did not say expressly  that the             government had to have proved  that Gendron knew that one of             the actors  depicted in the videotape was  a minor.  But, as             the  court   notes,  Gendron   did  not   request  such   an             instruction.  Moreover,  as the  court shows,  it is  highly             unlikely  that the jury could have failed to understand that             the central focus  of the charge was that  Gendron was eager             to  acquire,  and  through the  government's    good offices             ultimately   did  acquire,   a  videotape   depicting  child                                                                    _____             pornography.  That  is to say, in  the case at bar  the fact             that the trial  court did not  give the more  particularized             charge that appellant  did not request  cannot realistically             be supposed to have  affected the jury's deliberations in  a             fashion  detrimental to appellant.   In future  trials under             this statute, defendants will  presumably request, and trial             courts  will surely give, a more particularized statement of             what "knowingly" comprehends.                       Second.   The  fact that  the  methods pursued  by                       ______             government agents to offer Gendron a tempting opportunity to                                         -45-                                          45             commit a crime were not  only successful but have been found             by  this court  (correctly, in  my  view) not  to have  been             unlawful  -- i.e.,  not to  have crossed  the line  into the             forbidden realm of  entrapment -- does not,  in my judgment,             signify that those methods of enforcing this sort of statute             are something to be proud of.                                         -46-                                          46                                       APPENDIX                      Chronology of events in the Gendron case:                      ________________________________________                       November,  1984:     Government   agents  discover             Gendron's  name  on the  mailing  list  of Milton  Midge,  a             suspected child  pornography distributor.   Midge's  records             indicate  that  Gendron  had  ordered a  videotape  entitled             "Nancy," whose  description  reads:   "NANCY:   13, and  her                                                    _____             friends from  #6 THROB.   An impish 10 year-old,  a delicate             blonde of 12, and a fetching 10 with her playmate of 7 hide-             and-seek, tumble, and romp."                       Spring, 1986:  Post  office initiates an operation             involving the fictitious  "Far Eastern Trading Company"  and             sends  a  flier   to  Gendron  (and  others)   asking  those             interested  in  information  about  Far Eastern's  "youthful             material"  to  return  a coupon  with  the  customer's name,             address, and a signed affirmation that the customer is not a             law  enforcement  officer  interested   in  "entrapping  Far             Eastern Trading Company, its agents or customers."                       October  12, 1986:   Gendron fills out  the coupon             and returns it to  Far Eastern.  In reply, Far Eastern sends             Gendron a catalogue of materials available for order.   Each                                         -47-                                          47             item's  description   clearly  indicates  that   it  depicts             sexually explicit activities involving minors.                       December 29,  1986:   Gendron sends  a handwritten             letter to Far Eastern ordering  two videotapes.  The text of             the letter is:                       FROM                        12-29-86                       Mr. Daniel A. Gendron                       [address]                       Hi Peter:                            I'm very happy to know you and very  happy to                       know  that  I  have  finally  found  the  kind  of                       educational   material  I've   been  dreaming   of                       possessing for quite some time.   I'm sorry to say                       I  have never  had  any delightful  experiences of                       which I find in your catalogue.                            I  was getting very excited just reading your                       material.  So excited that I have decided to order                       two of  your titles  in VHS  format, LOLITA'S  SEX                       LESSON 119.95 AND CHILDREN SEX ORGY 129.95 A TOTAL                       OF 249.90 PLUS COD CHARGES.                            I  question why I could only pick two titles.                       Also the LOVELY TEENS TITLES had no prices listed.                       Do  you  have  any specials  on  buying  in larger                       quantities  of VHS  tapes.  I  would also  like to                       know  more about whether you have color tapes with                       sound and how  many minutes long are  they.  Thank                       you.                                                 /s/ Daniel Gendron             The government did not fill the order.                       April,  1988:    Gendron's name  is  found  on the             mailinglist of N.M.P.C., a pornography distributor in Miami.                                         -48-                                          48                       October,  1989:   A  new government  sham company,             "Artistes Internationale,"  sends a  flier  to Gendron  (and             others  from the N.M.P.C.  mailing list) indicating  that it             carried  "extremely   hard  to  obtain  erotica,"   but  not             specifically mentioning child pornography.   The flier asked             those interested in more information to reply by letter.                       October  16,  1989:   Gendron  sends  a  letter to             Artistes  requesting  information about  child  pornography.             The text of the letter is:                        Daniel A. Gendron                        10/16/89                       [address]                       Gentlemen                            I am a  customer of N.M.P.C. 6883  Bird Rd. #                       102  Miami, Florida 33155 who has stated that they                       have  contracted part of  you [sic]  services that                       they  can handle  in the  U.S.A.   Well  like many                       others  like me I am  very interested in the other                       part of your services that are very diffcult [sic]                       to obtain in my country.                            I  am  becoming very  board [sic]  with adult                       pornograpy [sic]  and have always  been interested                       in owning something  different if you know  what I                       mean.  I am single 41 years of age with low income                       as a  janitor.  I  like very young girls  only and                       color videos.  Can you help me.  Thank you                                                     /s/ Daniel Gendron             In reply,  Artistes sends Gendron a catalogue.   Each item's             description  clearly indicates  that  it portrays  minors in             sexually explicit activities.                                         -49-                                          49                       December  18, 1989:   Gendron submits an  order to             Artistes for four child-pornographic videotapes, along  with             a  notation  reading  "Please  send  more  order  forms  and             materials," and a Christmas card.  The order was not filled.                       March 17, 1990:   Gendron places  an order with  a             third sham company, "Can American," for two videotapes whose             descriptions  clearly   indicate  their   child-pornographic             content.                       May  4, 1990:    Gendron writes  a  letter to  Can             American complaining about  the delay in filling  his order.             The text of the letter is:                       Gentlemen:                            Have you  forgotten my  order of  March 17th.                       It is now  May 4, 1990.   I sent you a  good check                       for 149.90 to pay for  one tape PTL(1) and one mag                       LVM(2).                            Sufficient time for  a check to clear  is two                       weeks.   It  has  been  7 weeks.    If you  cannot                       deliver  as  promised  then  cancel  my order  and                       return my check or  if you have already  cashed it                       send me a  refund.  Please don't force  me to take                       other action to get my money back.  Don't worry, I                       am  not connected in any way with law enforcement.                       This  is the  first  time I  have  ever sought  to                       obtain this  type of educational  materials [sic].                       I   wanted  it  for  my  small  library  of  video                       collections.  Please Hurry.                                           /s/ Dan Gendron                                         -50-                                          50                       May  16, 1990:  Law enforcement officers obtain an             anticipatory  search  warrant  from  U.S.  Magistrate  Joyce             London  Alexander, which  authorizes a  search  of Gendron's             house after the Can American tape is delivered to him.                       May  18, 1990:  The  post office delivers the tape             to  Gendron.  Shortly  thereafter, law  enforcement officers             execute  the  search  warrant  and  search  Gendron's house,             seizing the Can American tape and various related items.                                         -51-                                          51
