Lead Opinion
Elvin Tomás Morales-De Jesús (“Morales”) was convicted by a jury of violating
I.
For purposes of our analysis, we can avoid recounting most of the lurid details of this case. In short, Morales induced a thirteen-year-old girl, who was his goddaughter and a member of his church, to have sex with him in a motel on at least five separate occasions. During the final two encounters, Morales used materials and equipment that had moved in interstate commerce to videotape the pair’s sex acts. After his wife discovered the tape in the backseat of his car and played it, she informed the girl’s parents, who then contacted police. Morales was duly arrested, charged, and indicted for two counts of violating 18 U.S.C. § 2251(a), which provides in pertinent part that
[a]ny person who employs, uses, persuades, induces, entices, or coerces any minor to engage in ... sexually explicit conduct for the purpose of producing any visual depiction of such conduct[ ] shall be punished as provided under subsection (d), ... 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).
Morales’s three-day jury trial produced a guilty verdict on both counts. After the defendant unsuccessfully moved for a judgment of acquittal, he was sentenced to 135 months of imprisonment and three years of supervised release on each count, to be served concurrently, and fined $1,000 with a special monetary assessment of $100. The district court ordered the federal sentence to be served concurrently with a 25-year state sentence based on charges filed for the same conduct at issue here. This appeal followed.
II.
A. Constitutional Claim
Morales appears to bring both facial and as-applied challenges to the constitutionality of § 2251(a). Relying on United States v. Lopez,
Section 2251(a) is part of a broad regulatory scheme that prohibits the production, receipt, transmission, and possession of child pornography. See 18 U.S.C. §§ 2251, 2252, 2252A. When this statute was originally enacted as part of the Protection of Children Against Sexual Exploitation Act of 1977, Pub.L. No. 95-225, § 2(a), 92 Stat. 7, 8 (1978)(codified at 18 U.S.C. §§ 2251 et seq.)(“the Act”), it targeted production of child pornography only if the pornographic depiction itself was
1. Lopez and Morrison
Morales argues that the “materials-in-commerce” Morales argues that the “materials-in-commerce” jurisdictional element in § 2251(a) is an unconstitutional exercise of Congress’s Commerce Clause power
First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, ... i.e., those activities that substantially affect interstate commerce.
Lopez,
In finding the GFSZA constitutionally infirm, the Supreme Court held that because the statute “by its terms has nothing to do with ‘commerce’ or any sort of economic enterprise,” it could not be upheld under precedents that approved “regulations of activities that ... are connected with a commercial transaction that, when viewed in the aggregate, substantially affects interstate commerce.” Id. at 561,
The Supreme Court amplified Lopez’s holding five years later in Morrison, when the court evaluated a federal civil remedy for victims of gender-based violence, as set forth in the Violence Against
In striking down the VAWA, the Court found that “gender-motivated crimes of violence are not, in any sense of the phrase, economic activity,” and that the statute lacked a jurisdictional element “establishing that the federal cause of action is in pursuance of Congress’s power to regulate interstate commerce.” Id. at 613,
2. The Constitutionality of § 2251(a) on Its Face
Because § 2251(a) regulates neither channels nor instrumentalities of interstate commerce, we analyze the constitutionality of the statute as a category three regulation under Lopez. Accordingly, we must apply the four Morrison factors to determine whether the statute regulates an activity that “substantially affects” interstate commerce. To aid the clarity of our analysis, we take the four factors in a different order than the one presented in Morrison.
a. Congressional findings
When Congress originally passed the Protection of Children Against Sexual Exploitation Act of 1977, which criminalized the sale and distribution for sale of child pornography, it supported the legislation with findings that “child pornography ... has become [a] highly organized, multimillion dollar industrfy] that operate[s] on a nationwide scale ... [and that] the sale and distribution of such pornographic materials are carried on to a substantial extent through the mails and other instrumentalities of interstate and foreign commerce.” S. Rep. 95-438, at 5 (1977), reprinted in 1978 U.S.C.C.A.N. 40, 42-43, available at
Congress amended the Act again two years later when it passed the Child Abuse Victims’ Rights Act of 1986, supporting the new civil remedies for victims by finding that “child exploitation has become a mul-ti-million dollar industry, infiltrated and operated by elements of organized crime, and by a nationwide network of individuals openly advertising their desire to exploit children.” Pub.L. No. 99-591, 100 Stat. 3341-74 (1986).
In 1996, Congress amended the Act to redefine child pornography as “any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where ... such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.” 18 U.S.C. § 2256(8)(C). In passing those amendments, Congress found that “the existence of a traffic in child pornographic images ... inflames the desires of child molesters, pedophiles, and child pornographers who prey on children, thereby increasing the creation and distribution of child pornography....” Child Pornography Protection Act of 1996, Pub.L. No. 104-208, § 1(4), 110 Stat. 3009-26,(1996), available at
Finally, Congress amended the Act again in 1998, establishing jurisdiction for the production of child pornography if the “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), which is the provision now before us. Congress offered two reasons for this amendment. First, it wanted the new jurisdictional element of the production statute to mirror the existing jurisdictional element of the possession statutes.
Given this comprehensive backdrop, there is no question that Congress has made explicit findings about the extensive national market in child pornography and the need to diminish that national market by prohibiting the production of child pornography at the local level.
b. The commercial or economic nature of the regulated activity
The congressional finding over 25 years ago that child pornography is a “multimillion dollar industry that operates on a nationwide scale” emphasizes that the underlying activity regulated by the child pornography statutes — the production, distribution, and possession of child pornography — is commercial activity, unlike the activity addressed by the federal legislation struck down in Lopez and Morrison. As the Lopez Court stated, the GFSZA “by its terms has nothing to do with ‘commerce’ or any sort of economic enterprise, however broadly one might define those terms.” Lopez,
c. The express jurisdictional element
As previously discussed, the statute only reaches child pornography “if that visual depiction was produced using materials that have been mailed, shipped, or transported in interstate or foreign commerce by any means .... ” § 2251(a). Importantly, the jurisdictional element discussed here, and the requirement of a substantial impact on interstate commerce, discussed in the next section, are distinct inquiries. At a minimum, the presence of a jurisdictional element “may establish that the enactment is in pursuance of Congress’s regulation of interstate commerce.” Morrison,
Morales complains that because Puerto Rico is an island heavily dependent
There are instances, however, where the jurisdictional element of a statute will more effectively limit the number of cases that fall under the purview of the statute, as envisioned by the Supreme Court. For example, in passing a federal arson statute, Congress criminalized damaging or destroying, “by means of fire or an explosive, any ... property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce.” 18 U.S.C. § 844(i)(Supp. IV 1994)(emphasis added). In Jones v. United States,
In passing § 2251(a), however, Congress formulated a broader jurisdictional element that both invokes its Commerce Clause power and purports to exercise that power by reaching any child pornography that was produced using materials that moved in interstate commerce. Although this jurisdictional element ensures that any prosecuted conduct has a minimal nexus with interstate commerce, that minimal nexus may not meet the substantial effect requirement of Morrison. In Ro-dia, the Third Circuit found it “at least doubtful ... that the jurisdictional element adequately performs the function of guaranteeing that the final product regulated
If the jurisdictional element bore sole responsibility for establishing that the impact of the regulated activity on interstate commerce is substantial or direct, the language of § 2251(a) likely would not be up to the task. The jurisdictional element focuses on things such as film, cameras, videotapes, and recorders moving in interstate commerce, which are then used to produce child pornography. As a matter of logic, this Commerce Clause" premise has the kind of flaw so worrisome to the Supreme Court in Lopez and Morrison — it could justify federalizing a vast array of crimes now prosecuted by the states, solely because the criminal used “materials that have been mailed, shipped, or transported in interstate of foreign commerce by any means.” See Lopez,
However, the disconnect between the interstate commerce activity described in the jurisdictional element of § 2251(a) and the interstate commerce activity (the national market for child pornography) that prompted Congress to criminalize the production of child pornography is not fatal to the constitutionality of the statute. Indeed, even a complete absence of a jurisdictional element in the text of a statute is not fatal to a statute challenged on Commerce Clause grounds. “[I]n Lopez, the Court simply did not state or imply that all criminal statutes must have such an element, ... or that any statute without such an element is per se unconstitutional.” United States v. Wilson,
d. . The link between the regulated activity and a substantial effect on interstate commerce
The final Morrison factor asks whether “the link between [the regulated activity] and a substantial effect on interstate commerce was attenuated.” Morrison,
The seminal case in this area remains Wickard v. Filburn,
Defendant argues that Lopez and Morrison prohibit applying the aggregation principle to the child pornography laws. We have encountered this argument before in relation to 18 U.S.C. § 2252(a)(4)(B), which uses language analogous to § 2251(a) to criminalize possession of child pornography.
In Robinson, we upheld the constitutionality of § 2252(a)(4)(B) because the local possession of child pornography “ ‘through repetition elsewhere’ helps to create and sustain a market for sexually explicit materials depicting minors.” Robinson,
In addition to our own precedent applying Wickard’s principles to a child pornography statute in Robinson, the Supreme Court long ago recognized that child pornography is a commodity influenced by and subject to economic market forces. See Osborne v. Ohio,
Defendant’s reading of Lopez and Morrison ignores our analysis in Robinson. Producing child pornography is an economic activity because it creates a product for which there is an extensive national market, and “in every case where we have sustained federal regulation under the aggregation principle in Wickard, the regulated activity was of an apparent commercial character.” Morrison,
Here, Congress wishes to regulate the availability of child pornography in the national market. Because a significant portion of the child pornography about which Congress was concerned “is homegrown, untraceable, and enters the national market surreptitiously, [the Second Circuit] concludefd] that Congress, in an attempt to halt interstate trafficking, can prohibit local production that feeds the national market and stimulates demand, as this production substantially affects interstate commerce.” Holston, 343 F.3d at
3. The Constitutionality of § 2251(a) As Applied to Morales
We turn now to Morales’s claim that § 2251(a) is unconstitutional as applied to him. In support of that position, the defendant argues that his individual conduct falls outside the class of activity properly regulated by Congress because “although [he] may have engaged in sexually explicit conduct with a minor for the purpose of producing visual depictions for his own gratification, the evidence has shown that defendant did not purchase, trade, sell or barter the self-generated pornography, nor [did] he [have] any intention to do so.” This argument is unpersuasive. When Congress regulates a class of activities that substantially affects interstate commerce, a defendant’s claim that his personal activities did not affect interstate commerce fails if his activity is within that class. When “ ‘a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.’ ” Lopez,
However, there are as-applied challenges that might focus on facts other than the economic facts of the particular case. These facts could include the age of the minor, the relationship between the defendant and the minor, the nature of the allegedly sexually explicit conduct, and the nature of the visual depiction of that conduct. In a given prosecution, some of these facts could raise constitutional privacy concerns
Two of our sister courts have upheld as-applied challenges to the analogous possession statute, § 2252(a)(4)(B), and Morales relies heavily on their reasoning. See United States v. Corp,
The Ninth Circuit, relying on Corp, reached a similar conclusion in McCoy. There, a mother was prosecuted under the possession statute for a single picture of her and her daughter with their genital areas exposed. Faced with a defendant who was intoxicated when her husband took the picture, and who clearly was not a pedophile or sexual predator, the Ninth Circuit stated that “no one claims that [the mother] is or is likely to become a child pornographer.” McCoy,
We must acknowledge some reservations about certain aspects of the analysis in the Corp and McCoy decisions. Both courts noted that the sexually explicit visual depictions in those cases were not intended for distribution. Corp,
As we have already noted in our discussion of the facial challenge to § 2251(a), “in every case where [the Supreme Court has] sustained federal regulation under the aggregation principle in Wickard, the regulated activity was of an apparent commercial character.” Morrison,
We think that Judge Trott’s dissent in McCoy is persuasive on this important point.
My compassionate friends are not incorrect in describing the underlying microcosmic facts of this case as (1) wholly personal, (2) not commercial, (3) strictly intrastate, and (4) the product of an isolated alcohol-fueled episode — all suggesting that Rhonda McCoy and her family need help, not federal prison. However, I conclude, based on Supreme Court precedent, that the majority’s legal approach is not correctly grounded. The real determinative question is whether the activity generically described in the statute has a substantial effect on interstate commerce such that it is subject to criminalization by Congress.
McCoy,
when Congress regulates a class of activities that substantially affect interstate commerce, “[t]he fact that certain intrastate activities within this class, such as growing marijuana solely for personal consumption, may not actually have significant effect on interstate commerce is ... irrelevant.” Moreover, “[t]he nexus to interstate commerce ... is determined by the class of activities regulated by the statute as a whole, not by the simple act for which an individual defendant is convicted.”
Holston,
However, to the extent that the Sixth and Ninth Circuits considered the defendants’ non-predatory, non-exploitative conduct in deciding that their conduct fell outside the purview of the statute and the Congressional concerns that prompted its passage pursuant to the Commerce Clause, we agree with the relevance of this consideration. The Corp court emphasized that the minor was almost eighteen years old and willingly participated in the sexual conduct. Similarly, the McCoy court emphasized that the single pornographic picture represented questionable judgment by an intoxicated parent, not the predatory act of a pedophile. Unlike the inappropriate reliance in Corp and McCoy on the absence of an intent to distribute the depictions in commerce, their reliance on the age of the minor, the relationship between the defendants and the minor, and the absence of predatory exploitation all seem important and appropriate questions to ask in considering whether the conduct at issue in an as-applied challenge falls within the class of activity which bears the substantial relationship to interstate activity
On the facts of the case before us, we are comfortable that “the acts charged against [Morales] were well within the limits of legitimate congressional concern,” Sabri v. United States, — U.S. -,
B. Sufficiency of the Evidence
In addition to his constitutional challenges, Morales also raises a sufficiency of the evidence claim. Appellate courts review claims regarding the sufficiency of the evidence de novo. United States v. Hernández,
Morales argues that the government failed to prove one of the elements of an 18 U.S.C. § 2251(a) violation — namely, that the defendant induced the minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct. The defendant argues that the video was the result of, not the motive behind, his sex acts with the minor. At trial, Morales testified that he and the girl had “romantic feelings” for each other and that the video “came about by chance.” Noting that he had created videos of himself and his wife having sex, and that they used the tape solely for their own use, he says that this history bolsters his claim that he did not engage in sex with the minor for the purpose of recording the encounters.
As succinctly explained by the district court, “the testimony of the minor, the testimony of the defendant, and the videotape itself constitute an evidentiary basis sufficient to allow a jury to find that the defendant induced the minor to have sexual relations with him for the purpose of recording that conduct.” The evidence shows that the defendant actively concealed from the minor the fact that he was videotaping her. He told her that the video camera was connected to the television so that she “could see herself’ while the two had sexual relations. Additionally, while taping his sex acts with the minor, the defendant gave her specific instructions regarding certain positions he wanted her to assume relative to the camera, instructed her on what to say while the
Furthermore, the defendant’s claim that the videotaping was not planned is implausible. After the defendant had taken the minor to a motel room to have sex for the fourth time, he returned to his ear and retrieved the recording equipment that he kept there. The defendant kept sexual aids in the same bag with the camera, a fact which standing alone could lead the jury to infer that the defendant had planned to videotape the encounters. Similarly, the defendant’s taping of his sexual activity with his wife could lead a reasonable jury to believe that he also engaged in sex acts with the minor for the purpose of videotaping them. Finally, a reasonable jury also could infer that since Morales taped sexual encounters with the minor more than once, he induced the girl to engage in sex acts for the purpose of creating videotapes of their encounters. On this background, we readily find that the government’s evidence was sufficient to support the jury’s guilty verdict.
AFFIRMED.
Notes
. Article I, § 8 of the United States Constitution provides that "[t]he Congress shall have Power To ... regulate Commerce with foreign Nations, and among the several States....”
. Although we are reviewing the statute as amended in 1998, we treat congressional findings and the legislative history of the Act passed in 1978 as relevant to the inquiry. See Maryland v. Wirtz,
. See, e.g., 18 U.S.C. § 2252(a)(4)(B)(reaching “[a]ny person who ... knowingly possesses ... matter which contains any visual depiction [of child pornography] 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).” We could find no legislative history revealing Congress’s reason for amending § 2252(a)(4)(B) in 1990 to include this jurisdictional element.
. Whether Morales’s individual activity was economic in nature is a different question, and we address it infra in Part I.A.3, where we discuss his as-applied challenge.
. Section 2252(a)(4)(B) provides that
[a]ny person who ... 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 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; shall be punished as provided in subsection (b) of this section.
18 U.S.C.A. § 2252(a)(4)(B).
. While Robinson predates Morrison, our decision essentially anticipated all four of the Morrison factors, which, of course, were drawn from Lopez. See Robinson,
. This holding is in line with that of seven other appellate circuits that, since Morrison, have upheld convictions against constitutional challenges on Commerce Clause grounds to either § 2251(a) or the analogous possession statute, § 2252(a)(4)(B). See United States v. Holston,
. The government still must prove, as it did here, that the materials used to produce the pornographic depiction were “mailed, shipped, or transported in interstate or foreign commerce by any means ...” because it is an element of the charged offense. § 2251(a). Whatever the limited value of the jurisdictional element in assuring that the statute meets the constitutional requirement of the Commerce Clause, it is an element of
. Also, we do not intend to express any view regarding as-applied challenges to statutes relating to the regulation of adult pornography. The State has "greater leeway in the regulation of pornographic depictions of children.” New York v. Ferber,
. For example, the Supreme Court has held that states cannot regulate the private possession of adult obscenity, Stanley v. Georgia,
. To the extent that Judge Trott in his dissent in McCoy took the position that there can be no as-applied challenges in Commerce Clause cases when the conduct falls within the language of the statute, we disagree for the reasons already stated. See infra.
. Our colleague limits her concurrence to the sufficiency of the evidence analysis and the affirmance of the conviction, suggesting that our decision in United States v. Robinson,
Concurrence Opinion
Concurring.
I join the majority opinion. I am satisfied that it does not foreclose ‘as applied’ challenges in limited, yet-to-be-defined circumstances. An overbroad definition of conduct constitutionally proscribed by the statute here at issue could impermissibly tilt the balance between the federal interest in suppressing commerce in pornography and violation of the constitutional protections afforded to the intimate relations of individuals and to the traditional law enforcement prerogatives of the states. Because we recognize that, in circumstances not present here, application of 18 U.S.C. § 2251(a) could be inconsistent with such limitations on federal Commerce Clause power, I am satisfied that Section II.A.3 of our opinion adequately honors those limitations.
Dissenting Opinion
Concurring.
I join the judgment affirming the conviction and that portion of Judge Lipez’s opinion in Section II.B. which rejects Morales’s sufficiency of the evidence challenge. I do not join the remainder of the opinion.
The defendant’s as-applied Commerce Clause challenge to his conviction is foreclosed by this court’s previous opinion in United States v. Robinson,