United States v. X-Citement Video, Inc./Concurrence Stevens

by John Paul Stevens

Justice Stevens, concurring.

In my opinion, the normal, commonsense reading of a subsection of a criminal statute introduced by the word "knowingly" is to treat that adverb as modifying each of the elements of the offense identified in the remainder of the subsection. Title 18 U.S.C. § 2252(a)(1) (1988 ed. and Supp. V) reads as follows:

"(a) Any person who—

"(1) knowingly transports or ships in interstate or foreign commerce by any means including by computer or mails, any visual depiction, 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." (Emphasis added.)

Surely reading this provision to require proof of scienter for each fact that must be proved is far more reasonable than adding such a requirement to a statutory offense that contains no scienter requirement whatsoever. Cf. Staples v. United States, 511 U.S. 600, 624 (1994) (Stevens, J., dissenting). Indeed, as the Court demonstrates, ante, at 69–70, to give the statute its most grammatically correct reading, and merely require knowledge that a "visual depiction" has been [p80] shipped in interstate commerce, would be ridiculous. Accordingly, I join the Court's opinion without qualification.