PAGE #3 about his 1999 arrest.

[BACKGROUND: In 1985 Iowa City teacher Roland D. Thomson was arrested with "a hoard of pornographic materials", includng "more than 120 nudist and pornographic magazines", photos and slides of nude children and other child porngraphy. Again in 1999 he was still a volunteer at the elementary school where his wife was teaching and was arrested again for taking photographs of children. In the newspaper articles and information that I could find after his last arrest there was only a slight mention that this was not his first arrest, with few details. None of these articles, about the previous arrest, were previously on the intenet. I regret not putting them up back in the 1990s and maybe this later abuse would have been avoided. In 2000, while serving his two year sentence he was still registered and able to teach in the public school system.--Nikki Craft]

Go Back to Roland D. Thomson: Page 1

ROLAND THOMSON, 74, the husband of an Iowa City elementary school teacher, pleaded guilty in 1999 of possessing suggestive pictures of his wife"s students and was given a two-year prison term in March 2000.

In 2000 Roland D Thomson was still licensed to teach in Iowa Classrooms

Monday, April 2, 2001

Finally, we're able to move on
Finally, after almost three years, the Roland Thomson case is ending.

THE ISSUE:
• Court moves mean Roland Thomson case is about over.
WE SUGGEST:
• It's been a long, hard road for this community. We're glad this is coming to an end.

Two recent actions help us toward closure:

• An agreement was reached in the lawsuit of eight families against the Iowa City Community School District. The suit won't go to trial, and the families receive a total of about $166,000.

• Shirley Thomson, Roland's wife, reached a plea agreement in her child endangerment case. She will receive no prison time, likely the same result as if she'd been convicted in a trial.

She still faces formal sentencing.

There also is an April 12 hearing, asking the court to reconsider Roland Thomson's maximum two-year state prison term. He already has served a federal term for taking inappropriate photos of students at Lucas Elementary, where he was a volunteer.

This has been a long road that started at the beginning of the school year in 1998, when parents were called to a special meeting at the school.

We faced betrayal by the Thomsons, who were beloved by the Lucas community. We have been forced to question our school district.

Lucas Principal Brian Lehman was acquitted of child endangerment. But we learned that several school district employees knew Thomson had been convicted of taking inappropriate photos of students before - when he was a teacher.

And we learned that almost no one who knew did a thing about it. They - like Shirley Thomson - let him continue to have access to students.

Morally, if not legally, they were guilty.

And let's not forget the families. They faced the ultimate betrayal, and then were criticized by some as being greedy for suing the district. But if you saw no one in the school district being held accountable to what was done to your children, what would you do?

Mercifully, this is about over. By the end of this month, if we're lucky.

And it's about time.

Saturday, March 3, 2001

Thomson: No excuse for release
Here's a case almost too nutty to believe.

Roland Thomson had finished his yearlong federal sentence for taking inappropriate photos of students while a volunteer at Lucas Elementary.

THE ISSUE:
• Roland Thomson mistakenly let out of prison for two weeks.
WE SUGGEST:
• We were lucky. Authorities who say this is no big deal have only their own interests at heart, not the interests of the public.

He was supposed to then start a two-year sentence on state charges in the same case.

Instead, the feds sent him home. That's where he stayed for two weeks until anyone figured out something was wrong.

"I would characterize it as a minor snafu," said Thomson's attorney, Bill Kutmus.

In other words, no harm, no foul, because Thomson now is in state prison.

That's an assessment shared by Associate District Court Judge Stephen Gerard II.

No surprise there. While there's a lot of finger-pointing going on, most of the fingers are aimed at Gerard. Blame falls on Gerard's order, which appears to have been unclear about what was supposed to happen when Thomson finished his federal sentence.

Do the crime?
Do the time!

Now, Roland Thomson's attorney wants to compound all the mess.

At an April 19 hearing, Bill Kutmus will ask Gerard to reconsider the sentence.

"Roland served his time," Kutmus said. "He is an old, sick man who did his time and did it well."

No, he hasn't served his time. He's got two years to go.

And who cares if he "did it well"?

Roland Thomson betrayed our trust. He tore apart an elementary school.

Now that he's where he belongs, let's keep him there.

That's a lousy attitude.

It's true Thomson, now 72, is infirm.

It's true he was only out of prison for two weeks and was being monitored electronically.

And it's certainly true Thomson did nothing wrong. He followed the rules, registering as a sex offender and reporting to a federal parole officer.

And when finally called by Johnson County authorities, he reported as requested, so he could be taken to the Iowa Medical Classification Center at Oakdale to begin his state sentence.

But for two weeks, he wasn't in prison, where he should have been.

And frankly, we have no way of knowing if children were at risk or not while he was out.

Is this not a problem simply because apparently nothing happened?

What if it had? What if the order had involved someone convicted of robbery or murder?

Yes, it's serious.

The judge messed up. And in fairness to him, and alarm bells didn't go off with other authorities, as they should have.

Surely in Thomson's paper work federal authorities had, there was mention that he was supposed to start a state sentence when he finished the federal sentence.

Surely local and state authorities knew when his federal sentence was to end.

Did nobody think to make a phone call?

We were lucky.

But let's be clear: Yes, this was serious. People who try to suggest otherwise have their own interests at heart - not those of the public.

By TARA DEERING
Register Staff Writer
12/18/1999
A former Iowa City school volunteer accused of taking sexually explicit pictures of students in his wife's sixth-grade class pleaded guilty in federal court Friday to a charge of possessing child pornography.

Roland D. Thomson, 72, who now lives in West Des Moines, was a volunteer at Lucas Elementary School in Iowa City during the 1997-98 school year when he allegedly took the photos. The photos were discovered after a Wisconsin photo lab notified the FBI about film it had developed for Thomson.

Thomson, a former school principal and teacher, could face up to 10 years in prison when he is sentenced Feb. 29, said U.S. Attorney Stephen J. Rapp.

Although Thomson pleaded guilty, he reserved the right to appeal a key judicial decision in the case regarding whether the materials seized by authorities were pornographic.

"Our position is that they're not pornographic at all," said Thomson's attorney William Kutmus of Des Moines. "There's no nudity. There's no partial nudity. They're not explicit. They're pictures of children that are fully clothed and sitting down."

Under state law the photos are not considered pornographic because there isn't any nudity, but under federal law nudity does not have to be present for material to be considered pornographic, Kutmus said. The judge in the case ruled the pictures were pornographic.

This isn't Thomson's first charge involving pictures he has taken of students.

In 1985, Thomson pleaded guilty of wanton neglect of a minor for taking inappropriate photos of female students.

At the state level, Thomson is charged with indecent contact with a child, child endangerment and assault. Thomson's plea of not guilty still stands for those charges filed in Johnson County, Kutmus said.

Thomson's wife, Shirley Thomson, 63, retired after the 1997-98 school year and awaits trial on a state charge of child endangerment.

Includes reporting by Associated Press

http://www.iand.uscourts.gov/iand/decisions.nsf/0/d67124182e3126a58625696900525380?OpenDocument

Due to the nature of HTML formatting there may be some formatting irregularities in the HTML version of the decision. These irregularities are not present in the original or the PDF version of the document which may be downloaded by clicking the "back" button and clicking on "New PDF attachemnt.". Decisions containing images or diagrams are best viewed using the Adobe Acrobat PDF attachment if it is available.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CEDAR RAPIDS DIVISION


UNITED STATES OF AMERICA,
Plaintiff,


No. CR99-0020
vs.
REPORT AND RECOMMENDATION
ROLAND D. THOMSON,
Defendant.

____________________


This matter comes before the court pursuant to defendant's March 19, 1999 motion to dismiss (docket number 13). This matter was referred to the undersigned United States Magistrate Judge for the issuance of a report and recommendation. For the reasons set forth below, it is recommended that defendant's motion be denied.

The defendant in this case, Roland D. Thomson is charged in a one-count indictment with violating 18 U.S.C. § 2252(a)(4)(B).(1) Section 2252 (a)(4)(B) makes it unlawful for a person to:

knowingly possess 3 or more books, magazines, periodicals, films, video tapes, or other matter which contain[s] any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which was produced using materials which have been mailed or so shipped or transported, by any means including by computer, if - -





(i) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and



(ii) such visual depiction is of such conduct



18 U.S.C. § 2252(a)(4)(B)(i)(ii) (1998).

The defendant argues that the charge pending against him should be dismissed for three reasons. First, the defendant claims that 18 U.S.C. § 2252(a)(4)(B) is unconstitutional, both facially and as applied to him. Specifically, the defendant claims that § 2252(a)(4)(B) is unconstitutionally vague, impermissibly overbroad so as to violate the First Amendment, fails to provide "fair notice" so as to violate the due process clause of the Fifth Amendment, and is beyond Congress' authority under the commerce clause. Second, the defendant claims that the application of § 2252(a)(4)(B) unlawfully intrudes upon the traditional police powers of State of Iowa and the Iowa child pornography laws. Finally, the defendant contends that he cannot be convicted under § 2252(a)(4)(B) unless the government proves that he knew that the materials at issue traveled in the mail or in interstate commerce, and he knew the sexually explicit nature of the material.

Constitutionality of 18 U.S.C. § 2252(a)(4)(B)

Overbreadth Doctrine

Defendant claims that the statutory element of § 2252(a)(4)(B) is unconstitutionally overbroad both facially and as applied to him because the statute will operate to make the possession of lawful images unlawful. Defendant argues that § 2252(a)(4)(B) is overbroad in that it "sweeps under its purview both protected and unprotected speech." Defendant emphasizes that the children depicted in the images were not naked nor depicted as being engaged in a sex act. Therefore, the defendant contends that the "depictions are not the type of images which invoke the federal government's interest to protect the children from exploitation and harm by means of criminal legislation."



As stated above, § 2252 (a)(4)(B) makes it unlawful for a person to:

knowingly possess 3 or more books, magazines, periodicals, films, video tapes, or other matter which contain[s] any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which was produced using materials which have been mailed or so shipped or transported, by any means including by computer, if - -



(i) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and



(ii) such visual depiction is of such conduct



18 U.S.C. § 2252(a)(4)(B)(i)(ii) (1998). "Sexually explicit conduct" has been defined to include the actual or simulated "lascivious exhibition of the genitals or pubic area of any person." 18 U.S.C. § 2256(2)(E) (1998). "Child pornography" is defined as including any visual depiction of a minor engaging in or appearing to engage in "sexually explicit conduct." 18 U.S.C. § 2256(8).

The Third Circuit Court of Appeals has thoroughly evaluated whether nudity is a prerequisite for a depiction to constitute a "lascivious exhibition of the genitals or public area" under the federal child pornography laws as codified at 18 U.S.C. §§ 2252 and 2256. U.S. v. Knox, 32 F.3d 733 (3d Cir. 1994), cert denied, 513 U.S. 1109, 115 S. Ct. 897, 130 L. Ed. 2d 782 (1995). At issue in Knox were films depicting several 10 to 17 year-old girls wearing tight, abbreviated articles of clothing. Id. at 737. Throughout these films "the photographer would zoom in on the children's pubic and genital area and display a close-up view for an extended period of time." Id. None of the girls were filmed in the nude. Id. The defendant in Knox argued that an "exhibition" required that a minor's genitals or public area be unclad and fully exposed to the camera. Id. at 744. The Third Circuit disagreed and held that "nudity or discernibility [sic] are not prerequisites for the occurrence of an exhibition within the meaning of the federal child pornography statute." Id. at 746.(2) "When interpreting a statute, the starting point is always the language of the statute itself." Id. at 744 (citing American Tobacco Co. v. Patterson, 456 U.S. 63, 68, 102 S. Ct. 1534, 1537, 71 L. Ed. 2d 748 (1982)). Like the defendant in Knox, Thomson is trying to read a nudity requirement into a statute which has none. Therefore, the lack of a nudity requirement when interpreting "exhibition of the genitals or pubic area," however, does not render 18 U.S.C. §§ 2252 and 2256 unconstitutionally overbroad as applied to Thomson.

"The function of the First Amendment is to prevent broadly worded statutes which control constitutionally unprotected conduct from deterring constitutionally protected expression." Knox, 32 F.3d at 752. The United States Supreme Court has repeatedly analyzed the overbreadth doctrine in the context of child pornography laws and has recognized that "striking down a statute on its face at the request of one whose own conduct may be punished despite the First Amendment" is "strong medicine" to be employed with hesitation, and then "only as a last resort." See New York v. Ferber, 458 U.S. 747, 769, 102 S. Ct. 3348, 3361 (1982) (holding that New York child pornography law is not unconstitutionally overbroad as forbidding the distribution of material with serious literary, scientific, or educational value); Osborne v. Ohio, 495 U.S. 103, 103-104, 110 S. Ct. 1691, 1693 (1989) (holding that the Ohio statute prohibiting the possession and viewing of child pornography is not constitutionally overbroad). Therefore, before a child pornography statute will be declared unconstitutional, the overbreadth must "not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S. Ct. 2908, 2918 (1973). In Knox, the Third Circuit also rejected the defendant's contention that 18 U.S.C. §§  2252 and 2256 are facially overbroad. Knox, 32 F.3d at 752. Whether or not the child is naked, a visual depiction of the subject's genitals or pubic area must be "lascivious" in order to be proscribed, and whether the depiction is "lascivious" will be determined on a case-by-case basis. Id. This court agrees and finds that the statutes are not facially overbroad in violation of the First Amendment.

Vagueness & Due Process

The defendant also argues that the term "exhibition of the genitals or pubic area" is unconstitutionally vague. The defendant claims that because Iowa law does not view depictions of clothed areas of a minor's anatomy as "child pornography," a federal statute that does is unconstitutional. The court disagrees.

The Due Process Clause of the Fifth Amendment has been interpreted to require that a criminal statute "define the offense well enough to let ordinary people know what is prohibited" and to avoid arbitrary and discriminatory enforcement. Kolender v. Lawson, 461 U.S. 352, 357 (1983); U.S. v. Whiting, 165 F.3d 631, 634 (8th Cir. 1999). The Constitution requires that the language of the statute 'convey sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. . . ." United States v. Freeman, 808 F.2d 1290, 1292 (8th Cir. 1987), cert denied, 480 U.S. 922, 107 S. Ct. 1384, 94 L. Ed. 2d 697 (1987) (quoting United States v. Petrillo, 332 U.S. 1, 7-8, 67 S. Ct. 1538, 1541-42, 91 L. Ed. 1877 (1947)). "The Supreme Court has consistently held that lack of precision, alone, does not violate due process." Id., (citing Roth v. United States, 354 U.S. 476, 491, 77 S. Ct. 1304, 1312, 1 L. Ed. 2d 1498 (1957)).

The court fails to see how an ordinary man of reasonable intelligence, guided by common understanding and practice, could not be on notice that taking pictures of young girls posed in compromising positions, focused closely on their pubic area, sometimes with their underwear showing, was illegal. As noted above, there is no nudity requirement found in the plain language of the statute, and a subsequent public law makes it clear that Congress intended no nudity or discernability requirement. Therefore, defendant's argument interpreting 18 U.S.C. § 2252 to include clothed areas would be unexpected and come without warning is unconvincing to say the least. Section 18 U.S.C. § 2252 is not void for vagueness.

Commerce Clause

Finally, defendant argues that Congress exceeded its authority under the Commerce Clause in enacting 18 U.S.C. § 2252, absent a case-by-case inquiry whether the particular actions of the defendant affected interstate commerce or the mail. In light of the fact that the Eighth Circuit Court of Appeals decided over a year ago that § 2252(a)(4)(B) is a proper exercise of Congress' power to regulate activities that substantially affect interstate commerce, suffice it to say that defendant's argument lacks merit. See United States v. Bausch, 140 F.3d 739, 741 (8th Cir. 1998), cert denied, 119 S. Ct. 806, 142 L. Ed. 2d 667 (1999). "The statute contains an express jurisdictional element requiring the transport in interstate or foreign commerce of the visual depictions or the materials used to produce them." Id. Therefore, "the statute ensures, through a case-by-case inquiry, that defendant's pornography possession affected interstate commerce." Id. See also United States v. Robinson, 137 F.3d 652 (1st Cir. 1998) (same).

Police Powers of Iowa

The defendant claims that the application of § 2252(a)(4)(B) unlawfully intrudes upon the traditional police powers of State of Iowa and the Iowa child pornography laws. The defendant argues that the Iowa law regulating child pornography (Iowa Code Chapter 728), which, according to the defendant, "refuses to make photographs of clothed minors into child pornography" is nullified by 18 U.S.C. § 2252. Once again, the court disagrees. The United States Supreme Court disagrees also. "[A] State's right not to regulate in the obscenity field cannot correlatively compel the Federal Government to allow the mails to be used to sent obscene materials into that State." Smith v. United States, 431 U.S. 291, 292 97 S. Ct. 1756, 1759 (1977) (holding that a the state law of Iowa "regulating distribution of obscene material cannot define contemporary community standards"). In light of this binding and readily available precedent, defendant's argument must fail.

Knowledge of Interstate Commerce Element

The defendant claims that he cannot be convicted under § 2252(a)(4)(B) unless the government proves that he knew that the materials at issue traveled in the mail or in interstate commerce, and he knew the sexually explicit nature of the material. On this point, the court agrees in part and disagrees in part.

Again, the Supreme Court has made it clear that the term "knowingly" as found in § 2252 applies to the requirement that the depiction be of sexually explicit conduct. United States v. X-Citement Video, 513 U.S. 64, 77, 115 S. Ct. 464, 471 (1994). However, the Supreme Court has also held that knowledge requirements do not apply to "jurisdictional facts." United States v. Feola, 420 U.S. 671, 95 S. Ct. 1255, 43 L. Ed. 2d 541 (1975) (holding that statute prohibiting assault against federal officers did not require that assailant be aware that the victim was a federal officer). See also Robinson, 137 F.3d 652, 655 (1st Cir. 1998) (rejecting defendant's contention that the government has to prove that he had actual knowledge of the jurisdictional element of § 2252(a)(4)(B)). Therefore, Thomson's claim that the government must prove his knowledge of the jurisdictional element of § 2252(a)(4)(B) is without merit.

Upon the foregoing,

IT IS RECOMMENDED that, unless any party files objections(3) to the Report and Recommendation in accordance with 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b) within ten (10) days of the service of a copy of this report and recommendation, defendant's motion to dismiss be denied.

April , 1999.



_______________________________

JOHN A. JARVEY

Magistrate Judge

UNITED STATES DISTRICT COURT

1. Throughout his motion and brief, the defendant makes repeated reference to 18 U.S.C. § 2252A(a)(5)(B). However, because the indictment filed on February 18, 1999 charges the defendant with violating 18 U.S.C. § 2252(a)(4)(B), the court will proceed to evaluate the defendant's arguments as they pertain to § 2252(a)(4)(B).

2. The Third Circuit's holding and interpretation of 18 U.S.C. § § 2252 and 2256 was confirmed by Section 160003 of Pub.L. 103-122, which provides, in relevant part: "the scope of 'exhibition of the genitals or pubic area' in section 2256(E), in the definition of 'sexually explicit conduct', is not limited to nude exhibitions or exhibitions in which the outlines of those areas were discernible through clothing . . .."

3. 3Objections must specify the parts of the report and recommendation to which objections are made. Objections also must specify the parts of the record, including exhibits and transcript lines, which form the basis for such objections. See Fed. R. Civ. P. 72. Failure to file timely objections may result in waiver of the right to appeal questions of fact. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990). A downloadable copy of this document in Adobe Acrobat PDF format is NOT available.

  
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