United States v. CorpUnited States v. Corp
ARGUED: Elena N. Broder-Feldman, JENNER & BLOCK, Washington, D.C., for Appellant. Richard S. Murray, ASSISTANT UNITED STATES ATTORNEY, Grand Rapids, Michigan, for Appellee. ON BRIEF: Elena N. Broder-Feldman, Julie M. Carpenter, JENNER & BLOCK, Washington, D.C., for Appellant. Richard S. Murray,
OPINION
HARRY W. WELLFORD, Circuit Judge. Patrick J. Corp pleaded guilty to one count of possession of child pornography in violation of
I. FACTUAL BACKGROUND
The facts below are taken from the presentence investigation report, to which the government takes no exception, and from the undisputed facts set out in the parties’ briefs.
Corp, then a twenty-three year old resident of Big Rapids, Michigan, population of about 12,600, brought film to be developed at the Southland Pharmacy in Big Rapids. Being suspicious because of Corp‘s alleged comment that “these are sick”1 when he dropped off the film and because of the sexual content of the photographs, pharmacy employees contacted the local police. The photographs were pornographic shots
Two of the females were identified as Sandra Sauntman, then 17 years old, and another younger female, both enrolled at the school.2 Corp first began dating Sauntman when she was about seventeen. It was subsequently discovered, however, that another female in the pictures was Corp‘s then 26-year-old wife, Heather, with whom Corp has a young child. The pictures showed Heather engaging in sexual activity with Sauntman, but Heather was not a defendant in this case.
On or about April 8, 1999, police obtained and executed a search warrant at Corp‘s home and obtained the pictures in question from a photo album in Corp‘s bedroom. The photographs recovered had been taken sometime in late 1998 and on March 1, 1999, shortly before Sauntman attained her majority on April 7, 1999.3 There is no allegation that Corp distributed the photographs, nor any indication that he gave copies to others, nor that he invited others to observe these photographs.4 Corp stated in his motion to dismiss that in September of 1999, Sauntman “voluntarily posed for the
Corp was eventually charged in a four-count indictment with three counts of producing child pornography in violation of
On or about April 8, 1999, in the Southern Division of the Western District of Michigan,
PATRICK JOHN CORP
did knowingly, intentionally and unlawfully possess one or more visual depictions. . ., the production of which involved the use of a minor engaged in sexually explicit conduct and which visual depictions were of such conduct, and which were produced using materials which had been shipped and transported in interstate and foreign commerce, that is Agfa photographic paper.
Corp moved to dismiss the indictment, arguing that the origin of the photographic paper outside the state of Michigan was an insufficient nexus with interstate commerce based upon United States v. Lopez, 514 U.S. 549 (1995). The district court denied Corp‘s motion on the grounds that the language in the statutes covering possession and production of child pornography “ensure[s] that each defendant, on a case-by-case basis, will be found to have [a] sufficient nexus
After the denial of Corp‘s motion, the parties reached a conditional plea agreement in which Corp agreed to plead guilty to the single possession count (
Corp was sentenced to five months imprisonment, plus supervised release and a $100 special assessment. The district court commented:
You know, I tend to agree with your gut reaction to this. This is an awful stretch, it seems to me, of the interstate commerce clause. And I don‘t think it would hurt anyone to get that clarified. . . .
. . .
I think all the parties agree that the case is outside the heartland of the statute which is intended to punish people who engage in sexual abuse of minors by either abusing the minors or having pictures of such activity or sexual acts by minors.
The district court, at the same time, noted Corp‘s criminal background, including assault and battery convictions, but emphasized that Corp was “not a pedophile.”
Corp now appeals his conviction.6
II. ANALYSIS
Corp argues that
knowingly possesses 1 or more books, magazines, periodicals, films, video tapes, or other matter which contain 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 computer, if—
- the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
- such visual depiction is of such conduct.
A constitutional challenge to a statute is a question of law, which this court reviews de novo. United States v. Smith, 182 F.3d 452, 455 (6th Cir. 1999), cert. denied, 120 S. Ct. 2201 (2000); United States v. Knipp, 963 F.2d 839, 842-43 (6th Cir. 1992). “Due respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds.” United States v. Morrison, 120 S. Ct. 1740, 1748 (2000); United States v. Rodia, 194 F.3d 465, 469 (3d Cir. 1999), cert. denied, 120 S. Ct. 2008 (2000) (recognizing that “we must respect Congress‘s ample discretion to determine the appropriate exercise of its Commerce Clause authority“).
A. Lopez and its Progeny
Corp relies principally on United States v. Lopez, 514 U.S. 549 (1995), in making a Commerce Clause challenge to the statute at issue. Indeed, Lopez is the starting point for determining whether a particular statute constitutes an unconstitutional exercise of Congress‘s Commerce Clause power. See Morrison, 120 S. Ct. at 1748-49 (discussing the impact of Lopez).
In Lopez, the Supreme Court struck down the Gun-Free School Zones Act,
After the conviction in the instant case and after the filing of briefs on appeal, the Supreme Court decided United States v. Morrison, 529 U.S. 598, 120 S. Ct. 1740 (2000), which struck down the civil remedy provision of the Violence Against Women Act (“VAWA“). In that case, petitioner Christy Brzonkala, a student at Virginia Tech, allegedly was assaulted and repeatedly raped during the fall semester of her freshman year by some members of the school‘s varsity football team. After pursuing administrative remedies without success, Brzonkala sued her assailants and the university in federal court pursuant to
The Supreme Court applied the Lopez framework in addressing the constitutionality of
- Is the prohibited activity commercial or economic in nature?;
- Is there an express jurisdictional element involving interstate activity which might limit the statute‘s reach?;
Did Congress make findings about the effects of the prohibited conduct on interstate commerce?; and - Is the link between the prohibited activity and the effect on interstate commerce attenuated?
See Morrison, 120 S. Ct. at 1750-51. First, the court noted that the conduct being controlled by
The Court acknowledged that, unlike the GFSZA,
[O]ur decision in Lopez rested in part on the fact that the link between gun possession and a substantial effect on interstate commerce was attenuated. . . . We rejected the “costs of crime” and “national productivity” arguments [which were supported by congressional findings] because they would permit Congress to “regulate not only all violent crime, but all activities that might lead to
violent crime, regardless of how tenuously they might relate to interstate commerce.”
Id. at 1751. The Court then concluded that the existence of congressional findings to justify the enactment of VAWA was “not sufficient, by itself, to sustain the constitutionality of [the] Commerce Clause legislation.” Id. at 1752.
B. Decisions from Other Circuits
Several courts have addressed the constitutionality of
In United States v. Robinson, 137 F.3d 652 (1st Cir. 1998), the defendant was convicted under
In United States v. Bausch, 140 F.3d 739, 741 (8th Cir. 1998), cert. denied, 525 U.S. 1072 (1999), the defendant was convicted under
Finally, in United States v. Rodia, 194 F.3d 465 (3d Cir. 1999), cert. denied, 120 S. Ct. 2008 (2000), the Third Circuit upheld the statute, albeit using different reasoning. The defendant pled guilty to the possession of child pornography, which included the possession of three Polaroid photos of naked boys in various sexually explicit poses. Rodia, 194 F.3d at 469. The court recognized that “[u]nlike the statute in question in Lopez, this statute has a jurisdictional element or ‘hook‘—that is, a clause that purports to ensure that the law only covers activity that has a substantial effect on interstate commerce.” Id. at 468. In a split decision, the court rejected the position adopted by the other courts that the jurisdictional “hook” in the statute automatically ensures its constitutionality. The court reasoned that “[a] jurisdictional element is only sufficient to ensure a statute‘s constitutionality when the element either limits the regulation to interstate activity or ensures that the intrastate activity to be
A hard and fast rule that the presence of a jurisdictional element automatically ensures the constitutionality of a statute ignores the fact that the connection between the activity regulated and the jurisdictional hook may be so attenuated as to fail to guarantee that the activity regulated has a substantial effect on interstate commerce. See Lopez, 514 U.S. at 561, 115 S.Ct. 1624 (implying that jurisdictional elements are useful only when they can ensure, through a case-by-case inquiry, that the regulated activity affects interstate commerce); United States v. Jones, 178 F.3d 479, 480 (7th Cir. 1999) (noting that the jurisdictional element of
§ 844(i) , even if proven by the government, did not establish a substantial connection to interstate commerce; and therefore, looking beyond the jurisdictional element to assess the statute constitutionality; United States v. Pappadopoulos, 64 F.3d 522, 527 (9th Cir. 1995) (illustrating that a statutorily imposed requirement of a jurisdictional nexus to interstate commerce will not insulate the statute from judicial review).
Id. at 472-73. We agree with this reasoning in Rodia. The statute facially has an extremely wide sweep. Although commentators have generally spoken in terms of film or computers, the statutory terms have no such limitation. A painter using a model who was just under 18, even if it was his wife, would fall afoul of the statute if the paints, brushes, or canvas had traveled in interstate commerce, even long before enactment of the act.
Rodia argued that child pornography has no relation to commerce because most child pornographers do not possess the pornography for commercial purposes. The court rejected that argument, commenting that the statute is not invalidated by the fact that some of the group is engaged in non-commercial activity. Id. at 480.
In this case, we think that Congress could have rationally reasoned as follows: Some pornographers manufacture, possess, and use child pornography exclusively within the boundaries of a state, and often only within the boundaries of their own property. It is unrealistic to think that those pornographers will be content with their own supply, hence they will likely wish to explore new or additional pornographic photos of children. Many of those pornographers will look to the interstate market as a source of new material, whether through mail order catalogs or through the Internet. Therefore, the possession of “home grown” pornography may well stimulate a further interest in pornography that immediately or eventually animates demand for interstate pornography. It is also reasonable to believe the related proposition that discouraging the intrastate possession of pornography will cause some of these child pornographers to leave the realm of child pornography completely, which in turn will reduce the demand for pornography.
Further, the court stated that “another way to describe the nexus between intrastate and interstate activity here is in terms of the notion of addiction,” quoting from senate reports explaining that child pornography is addictive and, in time, escalates to more deviant behavior in the user. Id. at 478.
In addressing the constitutionality of
The government argues that Congress intended to criminalize “commercial activity involved in child pornography.”10 Congress has indicated that “child exploitation” is operated by “elements of organized crime” with a “nationwide network . . . openly advertising their desire to exploit children.” Child Abuse Victims Rights Act of 1986, P.L. 99-591 § 702, 100 Stat. 3341-74 (1986). As a
While we are faced with serious questions about the constitutionality of the Act under the Commerce Clause power of Congress, we choose not to declare the Act facially unconstitutional. Instead, we assume, along with the Rodia and Robinson courts, that Morrison and Lopez have required that the jurisdictional components of constitutional statutes are to be read as meaningful restrictions. Furthermore, we do not determine the aggregate effect on interstate commerce of the purely intrastate dealing in child pornography. Instead, we conclude that Corp‘s activity was not of a type demonstrated substantially to be connected or related to interstate commerce on the facts of this case. Under the undisputed circumstances here, Corp was not involved, nor intended to be involved, in the distribution or sharing with others of the pictures in question. Sauntman was not an “exploited child” nor a victim in any real and practical sense in this case. In the other cases that have addressed this issue, the courts were faced with the much more threatening situation where an adult was taking advantage of a much younger child or using the imagery for abusive or semi-commercial purposes. See Rodia, 194 F.3d at 469 (stating that the defendant had been charged with abusing children); Bausch, 140 F.3d at 740 (finding that the subjects in the photographs were fifteen and sixteen-year-old girls, and the pictures were being used by the defendant in their absence and perhaps for commercial purposes); Robinson, 137 F.3d at 653 (finding that the subjects were teenage boys and the pictures contained detailed descriptions of each one).
Was the activity in this case related to explicit and graphic pictures of children engaged in sexual activity, particularly children about fourteen years of age or under, for commercial or exploitive purposes? Were there multiple children so pictured? Were the children otherwise sexually abused? Was there a record that defendant repeatedly engaged in such conduct or other sexually abusive conduct with children? Did defendant move from place to place, or state to state, and repeatedly engage in production of such pictures of children? These questions are relevant to a determination on a case-by-case basis about whether the activity involved in a certain case had a substantial effect on commerce.
Corp was not alleged to be a pedophile nor was he alleged to have been illegally sexually involved with minors other than Sauntman, who was merely months away from reaching majority. Clearly, Corp was not the typical offender feared by Congress that would become addicted to pornography and perpetuate the industry via interstate connections. Under these circumstances, the government has failed to make a showing that Corp‘s sort of activity would substantially affect interstate commerce. Having reached this conclusion, we need not decide whether the conduct in this case was commercial activity within the meaning of Morrison.
Accordingly, we REVERSE Corp‘s conviction and sentence on the grounds that, reviewing the undisputed and unusual facts of this case, we are not persuaded that Corp‘s activity has a sufficient nexus with interstate commerce.