United States Court of Appeals for the Second Circuit
215 F.3d 257 (2000)
Charles Dauray (defendant) was sitting in his car at a state park in Connecticut when a park officer approached his car and found him to be in possession of 13 unbound pictures from magazines of minors engaging in sexually explicit conduct. Dauray was indicted by a federal grand jury for possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B), which punishes the possession of three or more books, magazines, periodicals, films, video tapes, or “other matter” having passed through interstate or foreign commerce and which contains any visual depiction of a minor engaging in sexually explicit conduct. A jury found him guilty. The district court then considered Dauray’s pretrial motion to dismiss the indictment. Dauray argued that each picture in his possession was itself a “visual depiction” and thus could not be “other matter” containing any visual depiction. Thus, Dauray reasoned the indictment failed to charge an offense. The district court that the pictures constituted “other matter” within the meaning of the statute, denied dismissal of the indictment, and denied defense counsel’s request to apply the rule of lenity. Dauray appealed.
Rule of Law
Holding and Reasoning (Jacobs, J.)
Dissent (Katzmann, J.)
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