## Facts

- A Connecticut environmental officer found Charles R. Dauray in a state park possessing thirteen loose, unbound images (cut-out magazine pictures or photocopies) depicting minors’ genitalia.
- A federal grand jury indicted Dauray in the District of Connecticut under the 1994 version of 18 U.S.C. § 2252(a)(4)(B) for knowingly possessing “3 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction” of minors engaged in sexually explicit conduct.
- The charged “sexually explicit conduct” theory was a lascivious exhibition of the genitals or pubic area.
- Dauray moved to dismiss, arguing that the statute did not clearly reach individual loose pictures and that any ambiguity had to be resolved in his favor under the rule of lenity.
- The district court denied dismissal; a jury convicted Dauray, and he was sentenced to 36 months’ imprisonment.
- Dauray appealed.

## Issues

1. Whether loose, unbound photographs or photocopies qualify as “other matter which contain any visual depiction” under 18 U.S.C. § 2252(a)(4)(B) (1994 version).
2. Whether statutory ambiguity, if unresolved after ordinary interpretive methods, required reversal under the rule of lenity and fair-warning principles.

## Decision

- The Second Circuit reversed the conviction and directed dismissal of the indictment.
- The court held that, as applied to possession of individual pictures, § 2252(a)(4)(B)’s “other matter which contain any visual depiction” language was genuinely ambiguous.
- Because standard interpretive tools (text, structure, canons, and legislative history) did not resolve the ambiguity, the rule of lenity required adopting the narrower reading.
- Under that narrower reading, individual unbound images were not clearly covered by the statute’s “other matter” phrase.
- A dissent would have affirmed, concluding the statute clearly included photographs and that lenity was not triggered absent grievous ambiguity.

## Legal Principles

- A criminal statute must provide fair warning of what conduct it prohibits; ambiguous prohibitions may raise due process concerns when applied.
- The rule of lenity applies when, after using ordinary tools of statutory construction, a court remains in genuine doubt about a criminal statute’s reach; the ambiguity is resolved in the defendant’s favor.
- Statutory context and interpretive canons (including ejusdem generis and noscitur a sociis) can inform whether a catchall phrase is limited by preceding listed examples, but if these tools do not yield a clear meaning, lenity may control.
- Subsequent statutory amendments expanding or altering coverage do not, without more, eliminate ambiguity in earlier statutory text.

## Conclusion

The Second Circuit concluded that § 2252(a)(4)(B) (1994 version) did not clearly criminalize possession of loose, individual images as “other matter which contain any visual depiction,” and it therefore reversed Dauray’s conviction and ordered the indictment dismissed under the rule of lenity and fair-warning requirements.


United States v. Dauray, 215 F.3d 257 (2d Cir. 2000)