The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge
This matter came before the Court on June 27, 2007, for a bench trial. The Defendant appeared personally and by his attorneys Jon Gray Noll and Daniel Fultz. The Government appeared by Assistant United States Attorney John Childress. The Defendant was charged with production of child pornography in Count 1 of the Indictment (d/e 11), and possession of child pornography in Count 2. 18 U.S.C. §§ 2251(a) & 2252A(a)(5)(B). The Defendant knowingly and voluntarily waived trial by jury; the Government consented to the waiver, and the Court approved the waiver in open court. Minute Entry of June 27, 2007; Waiver of Jury Trial Pursuant to Federal Rule of Criminal Procedure 23 (d/e 32); Waiver of Jury Trial and Stipulation for Bench Trial (d/e 31) (Stipulation); see Fed. R. Crim. P. 23(a), and statements of record June 27, 2007, hearing. The parties then submitted the matter to the Court on a stipulation of facts. Minute Entry of June 27, 2007; Stipulation, at 2. The Court further admonished Defendant, consistent with Rule 11, of the rights he was giving up by entering into a stipulation of facts; Defendant waived his trial rights, finding the Defendant to have made a knowing and voluntary waiver, and accepted the stipulation of facts. The parties then briefed the matter thoroughly. After careful review of the stipulated facts and the submissions of the parties, the Court finds that the Government proved beyond a reasonable doubt that the Defendant is guilty of the crimes charged in both Counts.
Based on the stipulation presented, the Court finds the facts as follows: On or about September 2004, in Litchfield, Illinois, in the Central District of Illinois, the Defendant intentionally persuaded a 15 year-old person identified as Victim 6 to engage in sexual intercourse while the Defendant photographed the episode. Stipulation, ¶ 4(r). The Defendant further admitted inducing numerous minors under the age of 18 years to engage in sexually explicit behavior for the purpose of allowing the Defendant to photograph the behavior. He admitted taking such photographs beginning in the 1960s, and continuing until the time of his arrest in 2006. Id., ¶¶ 4(a)-(v).
In each instance, the Defendant used a Polaroid brand camera to take the photographs. Defendant used a Polaroid camera, serial number DZQEVQ4QCDJA, for approximately eight years to take these photographs. This camera was manufactured in China. The September 2004, pictures of the sexual acts performed by Victim 6 were taken using Polaroid film, serial numbers 010444051 Polaroid at 32 (5 pictures) (manufactured in Holland); 080334586 Polaroid at 32 (1 picture) (manufactured in the Netherlands); and 080334566 Polaroid at 32 (5 pictures) (manufactured in the Netherlands). The Polaroid Company has never manufactured Polaroid film in the United States and has never assembled Polaroid cameras in the United States. Id., ¶¶ 4(r)-(u).
On September 6, 2006, the Defendant agreed to show law enforcement officials his collection of photographs of minors engaged in sexually explicit conduct. Id., ¶¶ 4(h), 4(p)-(w). The photographs were all taken in Litchfield, Illinois. The photographs were taken by the Defendant using his Polaroid camera equipment. The photographs depicted 19 minors, under the age of 18 years, engaged in sexually explicit conduct. The Defendant intentionally induced these minors to engage in sexually explicit conduct for the purpose of taking these photographs. The Defendant then retained possession of the photographs.
Count 1 of the Indictment alleges:
On or about September 2004, in the Central District of Illinois, the defendant, PAUL KINCAID, knowingly employed, used, persuaded, induced, enticed and coerced a person under the age of eighteen years, to engage in sexually explicit conduct as defined in Title 18, United States Code, Section 2256(2), for the purpose of producing visual depictions of such conduct, knowing or having reason to know that such visual depictions would be transported in interstate and foreign commerce and mailed, and said visual depictions having been produced using materials that had been mailed, shipped, and transported in interstate and foreign commerce by any means, including by computer, and said visual depictions having actually been transported in interstate and foreign commerce and mailed.
All in violation of Title 18, United States Code, Section 2251(a).
Indictment (d/e 11), Count One (emphasis in original).
Section 2251(a) states, in part:
Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in . . . any sexually explicit conduct for the purpose of producing any visual depiction of such conduct, shall be punished as provided under subsection (e), . . . if that visual depiction was produced using materials that have been mailed, shipped, or transported in interstate or foreign commerce by any means . . . .
18 U.S.C. § 2251(a). The Defendant violated the statute as alleged in Count 1. He induced minors to engage in sexually explicit conduct for the purpose of producing visual depictions of the conduct. He used a Polaroid camera and film that had been shipped in interstate commerce from foreign countries to Illinois to produce those picture. ...