United States v. Rhonda Anne McCoy

Therefore, and remand reverse ments. opin- consistent proceedings

ion. America, STATES

UNITED

Plaintiff-Appellee, McCOY, Defendant- Anne

Rhonda

Appellant.

No. 01-50495. Appeals, Circuit.

Ninth 6, 2002. Aug. Submitted

Argued and 20, 2003. March

Decided Krueger, Federal Defenders

Angela M. CA, Inc, Diego, San Diego, of San defendant-appellant. O’Toole, distribution,

Patrick K. United States Attor- economic or com- use, mercial (when including the filed), Lam, exchange of the ney brief was Carol C. prohibited prohibited material for other (when Attorney opinion United States was material. filed), Perry, K. Anne Assistant United Section, Attorney, Appellate Crimi- I. BACKGROUND Division, CA, Diego, plain- nal San for the The facts underlying the to charge tiff-appellee. McCoy pleaded guilty arise from a

single photograph in April taken government allege does not McCoy, Rhonda or her husband Jonathan McCoy, were or are producers commercial pornography. At the time charges against were filed the McCoys, couple REINHARDT, Before and TROTT Kala, had two children: a ten-year-old TASHIMA, Judges. Circuit daughter, and a twenty-month-old son.1 family in housing provided lived by REINHARDT; Opinion by Judge Navy San Diego, where Jonathan by Judge Dissent TROTT. McCoy served as a Petty Naval Officer. 2000, Rhonda, in April Sometime Jona- OPINION than, and Kala were spending evening an REINHARDT, Judge. Circuit home, painting eggs Easter and taking family Rhonda, who, photographs. Appellant accord- McCoy Rhonda entered a con- ing presentence report, has a sub- plea guilty possession ditional of child problem stance abuse as well as mental photo after shop employees problems, health had substantial amounts picture discovered a daugh- her and her night. alcohol that At point some dur- ter with their genital exposed. Spe- areas ing evening, Kala, partial- Rhonda and cifically, right she reserved the to appeal ly unclothed, posed side side for the grounds constitutional the denial of her camera, with genital exposed. their areas charges motion to dismiss the against her. pose captured This in one photograph. appeal, In her McCoy challenges the sec- later, Approximately two months Rhon- tion of the federal prohibits statute that da left five rolls of film Navy with the possession of child pornography made Exchange Fleet processing. Shortly with materials that have traveled in inter- thereafter, Wilson, Rodd prevention loss 2252(a)(4)(B), state 18 U.S.C. manager for the Exchange, contacted the asserting that provision an constitutes U.S. Naval Criminal Investigation Service unconstitutional exercise of Congress’s and informed it photo- of the existence of power under the Commerce graphs appeared present Clause. a child in sexually suggestive poses. Agents of the We hold 18 U.S.C. Service, U.S. Naval Criminal Investigation is unconstitutional ap conjunction with the FBI and the San plied simple of a Diego Department, responded Police (or depiction depictions) visual that has not conducting a search of McCoy home mailed, shipped, transported been inter pursuant warrant, to a federal search state and is not intended for seizing photographs, numerous as well as custody, McCoy gave While in federal alleged played any birth Kala was to have role to a third child. Her two older children were in the event that led to the arrest of her placed parents, with foster care and her third stepfather. mother and parents-in-law, although child lives with her de- (i) such visual producing of camera, camera, video still family minor of a the use involves piction computer.2 conduct; explicit sexually engaging filed government January both Jonathan charging indictment such ii) is of depiction visual such manufacturing four counts Rhonda conduct; using mate- parent by a pornography

child in transported rials in provided subsec- punished shall also 2251(b). was Rhonda § 18 U.S.C. (b) of this section. tion manufacturing count one charged with added). does government trans- using materials child of Rhonda allege photograph not commerce, 18 U.S.C. in interstate ported mailed, or shipped, child was her and 2251(a).3 filed and Jonathan Rhonda § foreign or in interstate transported indictment, which to dismiss motions Rhonda, merce, hereinafter nor 10, 2001. May court denied the district sell or distribute intended to “McCoy,” negotiations plea entered then Rhonda Rath- in interstate photograph elect- while Jonathan government, upon premised er, was jurisdiction ac- eventually He was trial. to ed stand of the camera of manufacture place counts on June jury on all by a quitted Both pictures. film used to take Rhonda, gov- respect 2001. With Be- products. ordinary commercial were information superseding filed ernment stipu- it guilty, was McCoy pleaded fore 15, 2001, her with one charging May 1) question photograph lated pornography, possessing count of view a Cannon Sureshot taken with was 2252(a)(4)(B). pro- The statute U.S.C. 2) used; film Kodak was camera and part that: relevant vides in Roch- film is manufactured that Kodak (a) Any person who— China, (New York), Australia, Mexi- ester (4) ... Indonesia, Brazil, France, co, England, (B) or more possesses 1 knowingly 3) India; Cannon Sureshot films, vid- books, periodicals, magazines, Malaysia. manufactured cameras are contain which matter tapes, or other eo model of film nor the type of Neither has been depiction that any visual anywhere Califor- produced camera is shipped or trans- mailed, or has been nia. foreign com- or in interstate ported to dismiss filed motion McCoy using merce, produced or which ground on the information superseding or been so mailed materials 2252(a)(4)(B), face on its that 18 U.S.C. by any means transported, shipped an unconstitu- applied, constitutes if— by computer, including /new_walMart.html (describing filed lawsuit is, photo for apparently, not uncommon It pro- photo Wal Mart mother after Kansas adopt the role of employees to processing three-year- over.photos of her turned cessors Zimmerman, Expos- adjuncts. Ann police See attorney daughter police, and district old Developing Face ing Photo Processors Crime: charges). to file declined J., Police, ST. WALL When to Call Dilemma: 1, 2001, (describing criminal A1 June to as generally referred Although 2251 is 65-year-old New brought against charges statute, applies essen "manufacturing'' pictures taking grandmother Jersey or ‘'in "persuade! tially persons ]” who bathing); also David grandchildren see pictures after appear minors duce!]" Police, Clouston, Calling "em or who type prohibited "use[]” Sued Wal-Mart pic 12, 2002, production such (Kan.), ploy!]” available at them J. Dec. Salina other materials. tures or salj http ournal. com/stories/121202 ://www. Congress’s tional very properly exercise Commerce be restricted to that com- Clause The district denied power.4 court merce which concerns more States than 16, 2001, August the motion.5 On the dis- one.... The enumeration presupposes accepted McCoy’s trict court conditional something enumerated; and that plea guilty and sentenced her to months something, we regard if the language, or in prison years supervised and three subject sentence, must be the release.6 exclusively internal commerce of a State.” (9 Ogden, Wheat.) Gibbons v. II. ANALYSIS 194-95 At issue here is whether a pursuant statute enacted here to the is not whether may constitutionally McCoy’s conduct in reach non- possessing picture commercial, non-economic ten-year-old herself and her individual con- daughter duct purely may provide nature, intrastate in subjecting the basis for to her when there is no reasonable punishment by criminal the basis for con- state which cluding that the Rather, the conduct conduct had only occurred.7 the or was in- tended any to have question significant before us is whether the interstate connection government may punish substantive pos effect on McCoy interstate or, commerce. sessing picture the specifically, more 2252(a)(4)(B) whether is unconstitutional In reviewing a constitutional challenge Clause, under the Commerce on its face or to a upon based statute the Commerce applied. questions involving We review Clause, guided by we are two recent deci- the constitutionality of a statute de novo. Court, Supreme sions of the United States 910, Serang, United States v. 156 F.3d Lopez, v. 514 U.S. 115 S.Ct. (9th Cir.1998); Collegiate Nat'l Athletic (1995) L.Ed.2d and United v. States Miller, (9th Ass’n v. 10 F.3d Morrison, Cir.1993). 146 L.Ed.2d 658 In Lopez, the Supreme Court outlined three general cat- A. Congressional Power Under the Com- egories of activity may regulated be merce Clause Clause, under the Commerce the cat- third The delegates Congress Constitution to egory encompassing intrastate activities power the “regulate to Commerce with that “substantially affect” interstate com- Nations, foreign among the several important merce. More for our purposes, States, and with the Indian Tribes.” U.S. the Court established a four- I, 8,§ CONST. art. “Compre part cl. 3. As inquiry mode of to be used deter- is, ‘among’ hensive as the word may mining activity whether an intrastate sub- 4.McCoy challenges only part McCoy the 5. had also raised a Commerce Clause challenge original to the that authorizes a conviction if indictment which the district had also court denied. depictions the visual are made with materials transported foreign in interstate or 17, 2002, May 6. On granted the court district merce; challenge she does not the constitu- McCoy’s pending appeal. motion for bail Thus, tionality of the entire subsection. when 2252(a)(4)(B), we discuss only we to refer During appeal, her and before her release prohibits the simple clause that the intrastate bail, McCoy custody on was transferred to the 12, 2001, has been of the state on of California October made with materials that traveled in charged inter- after she was with state offenses aris- ing charged state commerce. from conduct here. the question pro- of the lawfulness of the state ceedings is before us. regu of whether analysis requires thus falls affects

stantially inter ‘substantially affects’ Lopez lated category. While third within 559, 115 S.Ct. Id. at a deci- represent commerce.” state together and Morrison framework, Lopez analysis Under the Court’s shift sive to enact activities power regulate to Congress’s Congress power limitations the Commerce than more limited pursuant category is legislation the third that is critical Clause,8 Morrison it is the instrumentalities regulate power here: the outcome of interstate channels challenged is whether consider must recently explained Circuit Eleventh intrastate regulates portion while as follows: Lopez consequences effect a substantial has activity that “any instrumental may regulate lies commerce, answer and our commerce, of interstate or channel ity inquiry four-part application in our regulate permits [it] Constitution however, First, by Morrison. mandated activities intrastate those recent two briefly the describe we will on interstate effect substantial cases. purely regulation and such struck Supreme Court of Con limits outer Lopez, activity reaches Act as Zones School Gun Free power.” down gress’ commerce of Commerce (11th exercise 1264, an unconstitutional Cir. 1270 Ballinger, 312 Act made Congress. power by Clause arson 2002) church (holding that individual any “for federal offense it a arson intrastate apply purely act did not place at a firearm possess a knowingly to interstate effect on no substantial knows, reason or has individual commerce). believe, zone.” is a school cause able posses- reaching the conclusion (1995) 551, S.Ct. 1624 115 U.S. zone does in a school a firearm sion of § 922(q)(1)(A)(1988)). 18 U.S.C. (quoting commerce, Lopez substantially affect twenti of its reviewing the structure After First, the points. emphasized three Court jurispru Clause century Commerce eth ‘com- do with nothing to “ha[d] statute broad three dence, the Court described enterprise, economic any sort of merce’ or may Congress activity that categories those might define broadly one however the Commerce regulate under properly ” 561, 115 S.Ct. U.S. at terms.’ 514 com of interstate “the channels Clause: “jurisdic- Second, contained no interstate merce,” “the instrumentalities ensure, would which tional element in inter commerce, things persons the fire- inquiry, case-by-case through commerce,” hav activities and'“those state inter- affects question possession arm to interstate relation ing substantial although Finally, Id. state commerce.” that sub commerce, activities i.e. those formal to make required is not Id. commerce.” stantially affect activity effect of regarding findings (internal cita 558-559, nothing on interstate omitted). third respect With tions supported the Act history of here, legislative implicated category category, the affect- activity question finding test “proper emphasized that Court (1976). 2465, Na- decision, 49 L.Ed.2d 96 S.Ct. the Su- Lopez to its 8. Prior however, Cities, was over- League legislation tional down preme had struck v. San Antonio Garcia by the Court in ruled exercise of an unconstitutional Authority, U.S. Metropolitan Transit in Na- only power once since Clause 83 L.Ed.2d Usery, League Cities tional ed inter-state commerce. Id. at 115 national truly and what is local.” Id. at S.Ct. 1624. 617-18, earlier, 120 S.Ct. 1740.9 As stated it is Morrison that controls our decision later, Morrison, years

Five the Su- here. Court, preme building on Lopez, estab- controlling

lished what is now the four- B. The Application Morrison determining factor test for a reg- whether 2252(a)(4)(B) activity ulated “substantially affects” inter- state the Court apply We the four Morrison factors in enacting held that 42 U.S.C. order to decide whether provided remedy federal civil applied is a constitutional exercise Con- victims of gender-motivated violence under gress of its Commerce power. We Act, Against the Violence Women Con- do so after re-ordering those factors in the gress exceeded its pow- Commerce Clause First, following manner. we discuss so, In doing er. the Court set forth the whether simple 1) four determinative considerations: more, child pornography, without is a com- whether the statute in regulates mercial or economic activity, and then any commerce “or sort of economic enter- whether the pos- connection between such 2) prise”; whether the statute contains session and interstate commerce is attenu- “express jurisdictional element which begin ated. We with these two factors not might limit its reach ato discrete set” of they because are related and require 3) cases; whether legisla- the statute or its a similar analytic approach, but because history “express tive congression- contains they are the important most ones. An findings” al regulated activity af- utterly that is lacking in commer- 4) commerce; fects interstate and whether cial or economic likely character would the link regulated activity between the have too attenuated a relationship to inter- a substantial effect on interstate commerce would, state commerce and accordingly, 598, 610-612, is “attenuated.” 529 U.S. subject not be to regulation under the 1740, 120 S.Ct. 146 L.Ed.2d 658 Finally, Commerce Clause. we consider factors, Applying these the Court con the remaining express two factors: cluded that intrastate against violence jurisdictional statute, element of the and women not “substantially does affect” in poses limitations, it whether discrete commerce, ter-state and thus the enact findings legislative statute’s histo- ment of 13981 was not a constitutional ry. latter analysis These factors aid our exercise of congressional Commerce not, themselves, ordinarily but are in dis- power. Clause In holding, so the Court positive. emphasized “reject[ed] that it the argu ment that Congress may regulate noneco Regulation 1. Commerce or Economic nomic, violent criminal conduct based sole Activity ly on that aggregate conduct’s effect on interstate commerce. While not denying The Constitution re the existence of a quires distinction truly between what is vast interstate commercial child pornogra- States, 848, 9. Jones v. United property 529 U.S. 120 "used in” commerce so as to be 1904, (2000), S.Ct. 146 L.Ed.2d 902 is the statute, reached the federal arson 18 third recent Supreme case in which the Court 844(i). U.S.C. Because it does not address has delineated the boundaries of the Com- squarely category” regulated the "third ac- There, merce Clause. the Court determined tivity Lopez, identified in we do not discuss owner-occupied that an residence not used length Jones at here. any purpose qualify commercial did not as arise because may This conditions. ket simple market, argues McCoy phy such condition in marketable being home-produced of a if in- market overhangs wheat child, no of a picture sexually explicit into tends to flow prices by rising duced by com inter-state distribute intent to price increases. and check the market character means, properly not is mercial mar- is never that it assume But we activity. economic commercial ized if who the man keted, a need supplies it 610, 1740. 120 S.Ct. Morrison, at U.S. be re- otherwise which would grew it v. relying on Wickard government, market. open in by purchases S.Ct. Filburn, 317 U.S. flected this sense Home-grown wheat posses “the (1942), argues L.Ed. 122 in commerce. with wheat petes interstate the reason matter such sion of exists,” obscenity Gov’t in such trafficking S.Ct. U.S. pic such that all It contends added). 13. Br. at part tures are does principle” “aggregation Wickard’s pos who parent ais possessor if the even In here.11 determine solely for his own picture sesses Morrison, Supreme Lopez and both picture use personal his own reach of carefully limited Court put (or the Third Circuit locally created Wickard, that decision’s affirming while “home-grown”).10 Lopez, the Court vitality. In continued farmer, Filburn, rationale Wickard, an Ohio of Wickard’s approved Ag- nature constitutionality of the economic activity the challenged the relation to Act, imposed Adjustment which was obvious. ricultural crops produced Similarly, who farmers 115 S.Ct. penalties every “in case argued Filburn affirmed quotas. beyond given regula its Commerce exceeded have sustained had where we regu- principle aggregation an act passing power tion under (of Filburn, not for 317 U.S. meant lated wheat Wickard (1942), kind) regu use. personal merely 87 L.Ed. 122 but com challenge, apparent the Wickard activity was' of Filburn’s lated rejecting 4,n. at 611 explained that: character.” court mercial Indeed, the Morrison the Act purposes primary One of repre that Wickard commented market court increase the towas “ reaching most ‘perhaps the limit the sented that end of wheat and price far authority example could affect thereof volume involving activity,”’ intra-state that a over “ hardly be denied It can market. way that activity in a ‘economic variability as factor of such volume does a school zone gun of a possession a have would wheat home-consumed ” 610, (quoting S.Ct. 1740 Id. at 120 mar- not.’ price and on influence substantial sale, very 465, its exis- Rodia, but meant have been for F.3d v. 194 United States 10. See Wickard, 317 Cir.1999) effect. (assessing effect of an economic (3d tence had 477 82("It 128, hardly upon interstate pornography can "home-grown” U.S. at S.Ct. commerce). varia- such volume a factor of denied that have wheat would bility as home-consumed analogy between a false dissent finds 11. The price market on influence substantial conduct relationship intrastate between conditions.”). not have photo does McCoy's and the in Wickard commerce and interstate impact plausible on any economic McCoy's circumstances. purported one in industry. may not home-grown wheat Filburn's Roscoe Lopez, 560, 1624) 514 U.S. at important, S.Ct. its “common sense understand added). ing of the demand side forces” of child pornography, 478, 194 F.3d at is based on In light of these deliberately limiting speculation could have rea statements Supreme Court, soned that purely intrastate will Third Circuit’s conclusion United States ultimately have a substantial effect on in Rodia, (3d Cir.1999), F.3d 465 terstate even though it chose Morrison, case predating not make any such findings or declara upheld can be under Wick Hypothetical tions. reasons should be ard longer is no sustainable. Despite its used with great circumspection, they acknowledged misgivings Wickard, about can easily justifications create that Con applied Rodia court “gener case’s gress may not have intended. See United principle” ic wholly find that intrastate Fisher, (2 States v. Cranch) 6 U.S. 358, possession of child pornography ac 385, (1805) (“Where the mind labours tivity “substantially affecting commerce.” to discover design of the legislature, it Expanding the aggregation principle of seizes every thing from which aid can be beyond Wickard prior bounds, all derived.”). the Ro We should be particularly hes dia court posited theory that Congress itant to engage in such speculation creative (that could is, congressional where concluded that Con intent cannot create jurisdiction, gress didn’t) could have made findings but U.S. at “purely where the possession” Consti will requires tution sharp distinction some between day likely greater lead national affairs, and local with especially part possessor. support respect to criminal 617-18, matters. Id. at theory proposed then what it called Second, 120 S.Ct. 1740. the Rodia court’s the “notion of addiction”: posses “[T]he reliance on subsequent legislative history14 sion of ‘home grown’ pornography may to bolster is, its addiction theory as the well stimulate a interest further in pornog “ Supreme Court has suggested, a ‘hazard raphy that immediately or eventually ani ous basis inferring the intent of an mates demand for interstate pornogra earlier’ Congress.” Pension Guar. Benefit phy.” 194 F.3d at 477-78.12 Corp. v. Corp., 633, 650, LTV The Third Circuit’s conclusions, as well (1990) S.Ct. 110 L.Ed.2d 579 (quot as its theory, “addiction” rest highly ing Price, States v. 361 questionable premises.13 First, and most (1960)).15 L.Ed.2d 334 Ultimately, disagreement the dissent's pre-Morrison Rodia; indeed, in its decision in our analysis can be single reduced to a issue: Angle quotes that decision’s "addiction” theo- whether or not Rodia theory-tying s addiction ry. 234 analysis, Without non-economic and non-commercial intrastate Angle summarily court then distinguishes possession to interstate means Morrison in a footnote. Id. at 338 13. n. a psychological of theory grounded pass- ain ing by advocacy mention group —is Despite 14. provision the fact that the issue at pelling. See n.16. For the reasons we infra in part this case was of the Child Protection explained, have we find that theory addiction 1990, Restoration and Penalties Act of Pub.L. not rhetorically unpersuasive prem- but 101-647, III, 323(a), No. Title 104 Stat. upon ised legal a analysis longer that can no (1990), the Rodia legisla- court cited as after sustained Morrison. history tive findings from 1996 amendments 469, to the Act. 194 F.3d at 478. 13. Angle, (7th United States v. Cir.2000), the Seventh upheld Circuit "via a theory.” market 15. While This the Child Pornography Prevention theory market essentially is expan- 210(4),(5), same Act of §§ P.L. 104-208 adopted sion of Wickard (1996), Circuit Third Stat. 3009-26 did penalty increase the commercial for grown wheat for the per- mand labeling of Third, Circuit’s Third pur of the sales, contravention in direct picture “home-grown” a possess sons who Adjustment Agricultural of the poses and pornographers” “child child a as and, according supply reduce on Act—to presumption pile is to addicts-in-futuro venture, McCoy’s price. to bolster ly, Lopez, words in the or presumption, contrast, non-economic purely at in inference.” upon “inference non-commercial, had no connection more see no We 115 S.Ct. interna or any national or effect on with possessor that a assuming for

justification mar pornography child commercial tional one’s photograph “home-grown” of a picture ket, or otherwise. inter- substantial ultimately enter child will own McCoy daughter McCoy and her an addict as market pornography state use did not personal own for her possessed possessor assume is to than there ex depictions with other “compete” will inevita- marijuana cigarette single aof illicit mar or sold bought, changed, junkie.16 heroin a full-time into bly turn not did af child ket for matter, Rodia note that final we As a are price. Nor availability or fect their pornography, that child assumes implicitly con McCoy possessed type of the pictures wheat, an essen- fungible, is Filburn’s like respect with commercial any in nected decision. We element of Wickard tial enterprises. Section family pho- economic McCoy possessed disagree. 2252(a)(4)(B) is, thus, “an essential been) not may have as it (pornographic of economic regulation larger of a use, part personal without entirely for meant scheme regulatory in which the activity, it for exchanging any intention of having the intrastate unless be undercut using could pornography, items of child other Lopez, regulated.” were or commercial economic any other it 561, 115 at S.Ct. to be- any reason is there reasons. Nor in acquiring had interest lieve she juris Clause reviewing its Commerce other children. depictions of pornographic Supreme Court stated prudence, pres- fungibility element is no There thus history our cases Nation’s far our “thus as hers. in cases such ent regulation upheld that activ activity only where of intrastate reasons well determine for other We Morrison, 529 in nature.” economic ity is poor analo provides wheat that Filburn’s 1740; also Bal see at Here, McCoy’s pho U.S. photo. McCoy’s togy (“No aggre such at in 312 F.3d linger, from removed is much farther tograph constitutionally of local effects gation wheat. activity than Filburn’s terstate comp reg reviewing congressional permissible ... wheat “[h]ome-grown Filburn’s intra-state, activit non-economic commerce,” 317 U.S. ulation wheat ete[d] Here, simple in- conclude that y.”).17 de- and reduced the pornogra- against legislation child alter did lobbies portions §§ 2251 and pornography is saying "an phy, at issue here. conduct offense Rep. (1996), re- 104-358 S. No. addiction.” (quoted *13 WL 506545 at printed at 1996 respectfully, not- 16. We this observation offer Rodia, 478). 194 F.3d support of its ing Third Circuit that the principally on theory relies "addiction” Ballinger fails quotation 17. The dissent’s a Senate Committee made before statement our, its, premise. Wick central years counter Jepsen six after by a Mrs. Dee some impact, aggregate cited theory of ard’s enacted substan- passage bill that Circuit, reg only when "the applies 2252(a)(4)(B). Sen- Eleventh provisions of The tive activity is commercial or Jepsen, the ulated Report quotes Mrs. ate Committee at 1270. Bal- one.” 312 F.3d Enough, group economic Enough is President possession trastate of home-grown child Clause cases we discussed earlier. In Lo- pornography not pez, intended for distribution government argued pres- that the “not, or exchange is in any ence of guns sense of schools threatened the phrase, Morrison, economic educational activity.” process, which in turn threat- produce ened to 1740; a less productive S.Ct. see also Unit- work- force, which in Kallestad, ed States v. turn would negatively 236 F.3d affect 232(5th Cir.2000) J., rejecting (Jolly, what it dissenting) called the “costs (“[S]imple approach, crime” possession of child pornography Lopez warned, Court that “it is does not difficult to interact with interstate commerce perceive any limitation on power, possession like the and consumption of even in areas such as criminal law enforce- Wickard.”).18 wheat did

ment or education where States historical- 2. ly Attenuated have been sovereign.” 514 U.S. at Effect 115 S.Ct. 1624. The Court said that McCoy argues that the connection be- conclude otherwise would require it tween the simple intrastate possession of “pile inference upon inference in a manner child pornography and interstate that would bid fair to congression- convert merce is too attenuated to warrant a valid al authority under the Commerce Clause exercise of Commerce power. to a general police power of the sort re- Morrison, 529 U.S. at 120 S.Ct. 1740. tained by the 567,115 States.” Id. at In response, the government, citing the petitioners relied Fifth Kallestad, Circuit’s decision in ar- upon legislative history linking gender-mo- gues Congress can reach purely intra- tivated violence to national effects on pro- state if conduct it rationally determines ductivity, costs, medical and the demand that doing so is necessary to effectively interstate products. Supreme regulate the national market. 236 F.3d at rejected this “but-for” analysis, and 230. Essentially, government asserts concluded that accepting such findings “such wholly ‘never lo- would any eliminate barriers to federal ” Kallestad, cal’ F.3d J., at 233 (Jolly, power: “Petitioner’s ... reasoning will not dissenting). limit Congress to regulating but violence Reasoning similar to the government’s may ... be applied equally as well to rejected has been by the Supreme Court family law and other areas traditional twice recently, in both of the Commerce regulation state since the aggregate effect linger course, ultimately, court scribe) held that fairly can as a described 'nation statute, the federal church arson 18 U.S.C. problem (or al' many sense that even 247(a)(1), could apply to the defen- all) experience states more instances of it dant's intrastate church arson because desired, are than desirable or [does not putative interstate commercial connections mean that] itself bring suffices to were “too satisfy jurisdic- insubstantial to such conduct scope within the of Con tional element of 247.” Id. at 1276. gress's power. Commerce Clause Plainly it does not. since a Ever well time before Finally, we note also important differ- Convention, Constitutional there have been ence between having conduct an effect on every year in each of the several states interstate commerce and conduct multi- desired, more than murders ple desirable or states have had to address internal but it is plain nevertheless matters. As the that the Com Fifth Circuit noted in United Bird, States v. merce Clause (5th does not authorize 678 n. 13 Cir.1997): legislation to enact punishing any and all throughout murders [S]imply type because nation. of antisocial con (which duct any state validly pro could 1124 sum, application the divorce, childrearing marriage, 2252(a)(4)(B) in the circum- McCoy to sig undoubtedly economy is national

the (or in simi- to others here 615-16, present stances 120 S.Ct. U.S. at 529 nificant.” circumstances) eco- regulate does not lar Eleventh Circuit Ballinger, the it activity; nor does or commercial church—arson nomic the federal that concluded or other- attenuated 247(a)(1), only relationship, a could show statute, 18 U.S.C. activity and wise, regulated had sub between the that itself an arson applied to be certainly commerce—and interstate interstate affected stantially relation- ap not be or substantial type could of direct the statute the Holding that conduct, Bal invocation justify to necessary appellant’s ship to plied in order suggest power that to its Congress said that linger court activity. mini individual criminal regulate of a series to accumulation fac- would remaining commerce Morrison on interstate to the mal effects turnWe would obliter the statute apply to suffice tors. between any ate distinction Element Express Jurisdictional regu to Congress “To powers: allow

state aggre theory of its crime late local Lopez in at issue the statutes Unlike economy would national on the gate effect Morrison, § contains any regulate a free hand give is jurisdictional element express world, since, virtu in the modern activity, con- Clause satisfy Commerce intended some attenuat have at least all crimes ally such stat- referred to cerns. Courts economy.” 312 national impact on the ed comply with the Com- attempts to utory Morrison, at 529 U.S. (citing F.3d at “jurisdictional hooks”: merce Clause 1740). 615, 120S.Ct. re- in a federal statute “provision specific to establish government quires important that particularly is It jur- of federal justifying the exercise facts enforcement, law criminal the field of any individual isdiction connection preeminent, national power is where state Rodia, 194 statute.” of the application limited to those areas authority jurisdic- purpose of at 471. The truly affect which interstate par- of a to limit the reach hook is tional 3, 115 at 561 n. Lopez, U.S. ed. cf. of cases a discrete set statute to ticular (“When Congress criminalizes S.Ct. com- substantially affect as criminal already denounced conduct 611-12, Morrison, 529 U.S. merce. States, ‘change sensi it effects a U.S. at Lopez, 514 (citing S.Ct. state federal and between tive relation 1624). jur- language ”) jurisdiction.’ (quoting criminal fails to- here hook in isdictional 396, 411-12, Enmons, States v. It not purpose. to achieve that tally (1973)). The L.Ed.2d 379 S.Ct. to limit reach fails is, essentially, reserved police power categories cases any category states, effect on interstate particular have a 1740(“Indeed, of no can think but, encompass- merce, contrary, to the police power, example of the better long imaginable, so virtually every case es denied the National Govern the Founders equip- photographic modern-day States, reposed in the than ment and Specifi- been material has used. ment or crime vindica suppression of violent un- prosecutions involving in cases victims.”). principle cally, must That tion 2252(a)(4)(B), has government of der Congress’s exercise review of guide our pur- statutory element asserted power criminal its Commerce commerce” satisfying “interstate portedly law area. concerns added). has been met pos defendants’ Thus, “jurisdictional element” papers, film, session of and cameras that must be considered along with the other made, have been as such materials or factors listed in Morrison. equipment are, always in virtually states agree We with the Third and Seventh (and countries) other than the one Circuits, which expressed substantial

which an individual prosecute defendant is doubt “jurisdictional hook” d.19 See United States Lacy, v. 119 F.3d adds substance to the (9th Cir.1997) (computer manufac Commerce Clause analysis. Rodia, 194 state); tured out of United States v. 472-473; F.3d at United States v. Angle, Bausch, (8th Cir.1998) (cam 140 F.3d 739 (7th 234 F.3d Cir.2000); Unit cf. era manufactured in Japan); United ed States v. Pappadopoulos, 64 F.3d Robinson, (1st States v. 137 F.3d 652 Cir. (9th Cir.1995) 525-528 (holding receipt 1998) (Kodak film manufactured outside of gas interstate into home insufficient as state); Rodia, (Polaroid 194 F.3d 465 film jurisdictional element under Commerce manufactured outside of New Jersey); Clause to conviction). sustain federal arson Kallestad, (film 236 F.3d 225 manufac As the Rodia court noted even before tured Texas); outside of United States v. Morrison, hardly anyone could create the Galo, (3d Cir.2001) (camera, 239 F.3d 572 visual depictions contemplated in the stat film, and photographic paper made outside ute using without photographic modern of Pennsylvania); United v. Corp, States and computer equipment that, at some (6th Cir.2001) 236 F.3d 325 (photographic point, had been transported across state or paper made Germany). national borders: The “jurisdictional statute’s hook” had practical As a matter, the limiting juris- been viewed some courts in decisions dictional factor is here, almost useless predating Morrison as sufficient to render all since but the most self-sufficient child the statute constitutional.20 Supreme pornographers will film, rely on cam- Court’s decisions Lopez and Morrison eras, or chemicals that traveled in inter- however, reject the view that jurisdic- state commerce and will therefore fall element, tional alone, standing serves to within sweep of the statute. At all shield a statute from constitutional infirmi- events, it is at least doubtful case ties under the Commerce Clause. At jurisdictional that the element adequate- most, the Court has noted that such an ly performs the function of guaranteeing “may element establish that the enactment that the final product regulated substan- pursuance is in of Congress’ regulation of tially affects interstate commerce. commerce,” interstate or that may “lend support” to this conclusion. 529 194 F.3d at 473. The Sixth Circuit echoed 612, 613, the Third Circuit’s concerns. It stated: I, 19. See discussion supra, noting Robinson, in section at 656(stating juris stipulation parties between the that the "requires dictional element on a answer Kodak film used is manufactured in basis”); case-by-case Roch- Hamp (New York), Australia, China, Mexico, ester ton, (8th Cir.2001) (fol 260 F.3d 834-35 France, England, Brazil, Indonesia, and In- lowing rationale); Bausch’s United States v. dia, and that the Cannon Sureshot camera Hoggard, (8th Cir.2001) 254 F.3d used is Malaysia. manufactured in (same); see Winning also United States v. ham, (D.Minn.1996) 953 F.Supp. Bausch, 20. See 140 F.3d at 741(stating (finding jurisdictional element refutes ensures, "the statute through case-by-case challenge constitutional Lopez’s under second inquiry, that each defendant’s category of regulating "instrumentalities commerce”); affected interstate commerce”). ” facially extremely through has an commerce.’ Id. Laurent, Although sweep. 473(quoting commentators St. wide Andrew Reconsti- in spoken tuting terms of film generally Lopez: United States Another Law, computers, statutory or terms have Look at 31 Federal Criminal Colum. (1998)). A painter using a limitation. J.L. no such & Soc. Probs. that As just out, under even if it who was pointed model court also a “hard and fast wife, fall his would afoul was constitutionality rule” a statute’s upholding brushes, or paints, if the canvas under the Commerce Clause a whenever commerce, in traveled interstate jurisdictional had present element was would long act. before enactment of the even “ignoref ] the that the fact connection be- the activity regulated juris- tween and the F.3d at 331. Corp, may dictional hook be so attenuated” that case, McCoy’s “jurisdictional may there be no substantial effect in- film, hook” use camera at terstate commerce. 472. Fi- made somewhere outside of California. cases, nally, unlike in of the earlier some not, view, in our Such use does allow the agrees here that Government the stat- §of application to local or jurisdictional ute’s hook does not in itself pornography not home-grown otherwise establish the for the requisite basis invoca- part pass of interstate commerce to consti- tion of Congress’s Commerce Clause au- fact, agree tutional muster.21 thority. Br. at 17. go Gov’t We would “limiting” that the juris- Third Circuit farther, however. We conclude provision practical pur- is for all dictional support at provides hook issue here no poses It completely “useless.” fails government’s juris- assertion of federal “guarantee[ product regu- ] that the final diction. substantially lated affects interstate com- Moreover,

merce.” 194 F.3d 472. as “ Legislative History A noted, all ‘virtually Rodia court crim- inal in necessary actions the United involve While neither nor con clusive, object passed congressional use some that has findings addressing virtually language transported We note that identical has actually been in inter-state 2251(a) (b). §§ appears supra foreign See n. or commerce or mailed. provisions 2251(a) read: added); Those (emphasis 18 U.S.C. Any parent, legal guardian person or hav- uses, person employs, who per- ANY ing custody or control of a minor who entices, suades, induces, any or coerces mi- in, knowingly permits engage such minor in, engage who nor to or has minor assist in, or to any person engage assist other in, person engage other or who sexually explicit purpose conduct for the transports any minor in inter-state or for- producing any depiction visual such con- eign any Territory inor Pos- or provided duct States, punished shall be under session the United with the intent section, (d) in, parent, subsection of this if such engage any sexually that such minor guardian, legal person or knows or has explicit purpose produc- for the conduct conduct, reason to visual ing any depiction know such depiction of visual such be transported foreign will or punished provided interstate shall be under subsec- mailed, (d), commerce visual person depiction or tion if or has such knows reason if produced using was depiction to know visual materials that that such have been will mailed, transported foreign transported shipped, in interstate or or interstate mailed, means, foreign by any or or depiction merce commerce visual includ- if using ing by produced computer, depiction materials that or if such visual have been mailed, shipped, transported transported or has actually in inter-state been in interstate means, foreign by any foreign or includ- commerce mailed. ing by computer, 2251(b) added). or if depiction such visual 18 U.S.C. impact the national of the regulated activi declared commercial child pornography to ty can Rep. assist be a determining national problem. See S. 95- No. whether that activity substantially (1978), affects reprinted in 1978 commerce. Lopez, 42-43; at U.S.C.C.A.N. see also Child 563, 115 S.Ct. 1624. Pornography As the Supreme Prevention Act of 104-208, Court noted in Pub.L. No. however, it is Stat. 3009-26 not the mere These determinations, existence of legislative however, find speak only to ings general phenomenon is determinative. U.S. at commercial child Rather, pornography; S.Ct. 1740. they do “[w]hether not speak to particular the relationship operations between affect in interstate com trastate non-commercial merce sufficiently conduct to come like under the con McCoy’s and the interstate power stitutional commercial Congress to regulate child pornography market. For example, them is ultimately judicial rather than a the 1978 Senate report observes gen legislative question.” Id. (quoting Lopez, erally that “child pornography and child 2, 1624). U.S. at 557 n. 115 S.Ct. prostitution have become highly organized, Morrison, although Congress made explic multimillion dollar industries that operate it findings respect to the national Rep. on a nationwide scale.” S. No. 95- gender-motivated effects of violence, the 438, at (1978), reprinted in 1978 Supreme Court found the congressional 40, U.S.C.C.A.N. added). 42-43 (emphasis doubtful, rationale ground the that Con By contrast, we note in gress failed to distinguish between “na there existed specific legislative findings tional and local authority.” 615, at Id. describing the effect of intrastate conduct S.Ct. 1740. The rejected the thus interstate despite which the Congressional findings. Id. Supreme Court ultimately determined that Here, government the argues that legis- intrastate gender-motivated did violence history lative supports its position that not substantially affect inter-state com purely intrastate part is of in- 615, merce. at U.S. terstate commerce. On our reading of this Rep. 1740(quoting 103-711, H.R. at 385 No. history, find, we if anything, support for (1994), 1853). 1803, U.S.C.C.A.N. At the opposite conclusion—that most, the legislative history here tells us § 2252(a)(4)(B), as applied to McCoy and that Congress intended to the eliminate situated, others similarly would be uncon- interstate commercial child First, stitutional. it is true market, that Congress and nothing more.22 Moreover, puzzled by govern- are the Even if we were to assume that ment’s attribution the expressed view relied on Report the deliberating Meese in Report Congress. upon 2252(a)(4)(B), Meese findings See Gov’t Br. the and rec- (citing Justice, Dep’t Report ommendations Attorney espe- would not Gen- cially support the position. eral’s Government’s Commission on Pornography: Final Re- Specifically, Report the (1986) ("Meese cautioned port Report”)). Attorney concern for child victims exploita- of sexual General’s Commission on Pornography oper- tion should not regard obscure the pursuant ated provisions to the of the Federal proper role of federal law in criminal law en- Act, Advisory 92-463, Committee No. Pub.L. forcement: (1972), 86 Stat. 770 as amended the Gov- The federal interest protecting chil- Act, ernment in the Sunshine Pub.L. No. 94- dren, course, secondary is to that of the 5(c), S 90 Stat. It states, principal which act guardians represented at most the view of the Executive against neglect abuse or Branch. young.... limited, are used to be intended used or tually outset from Second, existed doubt photographs or regulate authority to distribution Congress’s regarding film sections question. When activity. first enacted were Rep. reprinted 25-26, 95-438, S. No. Ex- Against Sexual of Children Protection 1978 U.S.C.C.A.N. 61-62 95-225, No. Pub.L. Act of ploitation added).23 recommended Department (1978), Department of Jus- 92 Stat. in which only conduct bill cover that the proposed concern expressed tice had themselves pictures prohibited permit convic- construed could be bill foreign or in interstate moved been used to only the materials tions where that the bill be recommend merce: “We had been pictures prohibited produce person in which limited situations and, in interstate transported intends knows, to know or has reason intra- purely thus, the conduct where photographed will be act in question Depart- on behalf Writing state. shipped mailed Pa- Attorney General ment, then Assistant jurisdictional Id. The foreign commerce.” that: M. stated tricia Wald of by Department recognized problem purely intra- cover a would bill [T]he years ago is twenty-five Justice some op- and distribution photographing state re- Supreme Court’s by the exacerbated theory that commerce is on eration restrictive adoption of an even more cent processing of the in ‘affected’ Commerce scope Congress’s of view materials film utilize or photographs Morrison.24, Lopez in power, Clause interstate commerce.... in that moved between our any conflict find We do not pros- investigation opinion, In our in United our decision today and decision local acts purely of ecution 1030(9th Cortes, Cir. v. F.3d States authorities to local abuse should left Clause 2002), rejected a Commerce to involvement confined federal “carjacking stat to the federal challenge mails or which the those instances argued ute,” § 2119. Cortes 18 U.S.C. are ac~ interstate commerce facilities rely does not We note that Government regulation of child government, to Con involving the federal analogy cases on affecting pornography in or Act, good That reason. merce; trolled Substances power prohibit all they findings legislative re express materi- contains trafficking in such Act production and purely intra relationship garding between als. It original). interstate commerce. activities and Report state at 607 Meese states, distri among things, "[l]ocal other Federalization Task Force 23. See also sub of controlled bution and (American Bar Association Law of Criminal swelling the interstate contribute stances Section), The Criminal Justice Federalization substances,” "[flederal and that traffic in such (1998). Law Criminal the traffic intrastate incidents control of the is essential substances in controlled highly issue as to ... a debatable There is incidents of of the interstate effective targeted control for federal should be what conduct 801(4) §§ & It 21 U.S.C. cat- such traffic.” prosecution in the interstate congression the basis of primarily on these response to citizen concern egory .... The rejected findings al inter- produce or tenuous a contrived can See, e.g., United States v. challenges the Act. really distinctly feder- that is not state basis Cir.1996); (9th Tisor, F.3d 373-375 responses can intrude Such al in nature. (9th Kim, United control and be traditional state into areas Visman, Cir.1996); 919 F.2d States v. producing a federal counterproductive, Cir.1990) (9th (citing Wick 1392-93 likely to have demonstrable not crime however, view, ard). to the express We no risk detrimental impact one which will on these of Morrison cases. effect consequences. that because the carjacking incident of state commerce or because “cars are them- which he been had convicted occurred en- selves instrumentalities commerce, intrastate, tirely it had no substantial ef- which Congress may protect.” United fect on interstate commerce. In rejecting Oliver, States v. (9th 60 F.3d appellant’s argument, we relied upon con- Cir.1995); see also Pappadopoulos, 64 gressional findings that specifically dis- 527(“[M]otor F.3d at vehicles themselves cussed the national black market stolen constitute an important instrument of com- parts. car 299 F.3d at 1035. Cars merce, stolen and our highways, which are direct- (and car thefts are almost al- ly affected violence, carjacking consti- intrastate) ways are pro- disassembled tute perhaps our most vital channel or “chop shops” fessional parts where the are artery commerce.”).25 of interstate We then sold in interstate and international find no conflict between our decision here Thus, Id. a direct link exists and that reached Cortes. between the intrastate theft and the inter- 5. Summary

state sale. While a single case might ap- pear to have a de minimis effect inter- Having reviewed four Morrison fac- state we held that carjacking tors, we conclude that first, under the a “class activity” substantially affects ordinarily the important, most factor: interstate commerce so as to justify the applied when in the circumstances before statute under the Commerce Clause. us, Id. § 2252(a)(4)(B) does regulate activ- By contrast, at 1036-37. legislative no ity that is economic or commercial in na- findings exist with respect to the interstate ture. The remaining Morrison factors intrastate, effect of pos- non-commercial also support our simple conclusion that session of prohibited the here, materials possession of child pornography and we decline “pile to upon inference does not fall within Lopez’s third category inference,” Lopez, 514 U.S. at permissible of Commerce Clause regula- to create a connection between tion: activity that “substantially affects” that purely local simple pos- —the interstate commerce. relationship The be- session of “home-grown” pornogra- child tween purely intrastate non-commercial phy the interstate commercial activi- —and possession prohibited home-grown de- ty in question “multi-million dollar —the pictions and highly the commercial inter- [pornography] industries” that state activity engaged in by the “multi- “operate determined on a national scale.” million dollar industries” involved is highly

Significantly, Cortes, in attenuated at “jurisdiction- the best. In regard, find al hook” in the statute no and the basis or support item for the which Third Circuit’s affects pre-Morrison interstate commerce are one theory. and addiction To the the automobile, same. The contrary, if the anything, assumption that individuals the paradigm of modern who possess interstate “home-grown” pictures for mercial activity in the United their own personal States. use will as a result Moreover, federal criminal laws regarding become commercial pornographers por- may justified automobiles under nography the appears addicts to us to stretch Commerce Clause either because the activ- supposition unfounded far. too un- Such ity question in “substantially affects” inter- informed speculation runs afoul of the government 25. The argue does not that of the "instrumentalities” of interstate com- 2252(4)(B) upheld can be as constitutional merce: the categories first two identified in under the regulation Commerce Clause as a Lopez. of the "channels” of interstate commerce or 2252(a)(4)(B) that §to challenges Clause about Morrison Lopez in warnings de- either after Morrison decided were in order upon inference” “inference piling to or failed framework apply to clined in power of federal the exercise justify to at all.27 the case mention states. to the reserved expressly an area hook of Kallestad, 236 F.3d jurisdictional Circuit, the in Similarly, Fifth ap- limit to to have not serve only circuit does the far is thus ap- set a discrete to purporting after the statute statute plication upheld effect Morri- set forth four-part test substantial have ply that cases findings constitutional facial Finally, rejecting In son.28 interstate here, issue history do provision to the legislative challenge heavily on relied majority in- purely Kallestad the conclusion support not scope; Wickard, Wickard’s expanded has “home-grown” trastate weight so, insufficient gave traf- doing connection substantial dis- factors themselves. the Morrison pornography. commercial ficking in contrast, principally relied sent, in Morrison’s Circuits as on C. Other as well factors Morrison circum- the limited regarding statements constitutionality of defending applies. Wickard in which stances relies on 2252(a)(4)(B), government held factors circuits and fourth the first applying of other decisions its Com- supra, Kalles not exceed discussed Congress did problems enacting the stat- assumed power majority tad merce Clause decisions, wheat market to the respect of these A number ute. statute, prob to the analogous do directly were challenges 1940s involve facial Thus, in today. controls of child lems law the current apply type they conduct deciding because whether analysis character, here is commercial are Morrison before were decided noted: “Wickard majority the Kallestad here.26 limited assistance therefore produces that, person when a affirms considering Commerce Other decisions that, holding under Robinson, by 476-79; tutional issue Rodia, at 194 F.3d 26. See 2252(a)(4)(B), whether not matter it did Bausch, § 656; at 741. 140 F.3d F.3d originals. II.B.3, than copies rather supra, were depictions Further, part explained we in as erroneously place at 745. ex Id. and Bausch Robinson jurisdictional on the dubious reliance clusive Galo, 572(rejecting facial 239 F.3d See 2252(a)(4)(B), Rodia while § forth in hook set mentioning challenges without applied as of which application precedent the relies on 832(rejecting Morrison); 260 F.3d Hampton, severely limited in has Supreme Court discussing citing but not challenge and addition, explained facial we have as Morrison. (rejecting Morrison); Hoggard, 254 F.3d sig text, disagree with respectfully mentioning Moni challenge after rationale. facial aspects Rodia’s nificant by pre- concluding it is bound briefly, son addressed previously We Angle, 234 F.3d precedent); circuit Morrison consider its 2252(a)(4)(B), then did but not and distin challenge (rejecting facial constitutionality. Lacy, 119 F.3d footnote). in guishing Morrison court, district Lacy, cited pictures down- whether issue was relevant four- cited Morrison’s Circuit Sixth 28. The “pro- been had Internet from the loaded de- but Corp, 236 F.3d at part test in meaning within duced” challenge. Corp’s facial apply it to to clined Instead, 2252(a)(4)(B). Lacy contended II.D, Corp part as discussed depictions, he was downloading infra the visual unconsti- was held court "pro- than images rather merely reproducing Corp. applied to tutional that non-consti- We resolved ducing” them. their consumption [sic] own product a pornography), simply because ‘this reach is traded an market, his con- into local intrastate conduct was a neces- duct is economic in character. Kallestad sary incident of a congressional effort to may not have intended photo- to sell his regulate a national market.... The ma- graphs, but then Filburn never intended to jority undertakes []an application of sell his wheat.” 236 F.3d at 228. Similar- Wickard, even though explicit- Morrison ly, in deciding that the relationship of the ly reminds us that ‘in every case where local activity at issue to interstate com- we have sustained federal regulation un- merce attenuated, was not the Kallestad der Wickard’s aggregation principle, the majority, implicitly referring to Wickard’s regulated activity was apparent principle, stated: commercial character.’ A true market is inevitably commer- Id. at 232 (quoting U.S. at 611 n. cial, and is pushed by supply and de- 1740). Full consideration of mand, whether manifested in swaps or Morrison compels the conclusion that purchase and sale.... With such a mar- Kallestad the dissent, rather than the ma-

ket we have little hesitation in conclud- jority, properly applied the four controlling ing that product where the fungible, is Morrison factors. such that it is if difficult not impossible D. The Statute As Applied trace, Congress can prohibit pos- local

session in an effort regulate product Nothing in current Commerce Clause supply and demand and thereby halt jurisprudence, proclaimed by the Su- interstate trade. preme Court, provides support for ap- added). Id. at plication §of 2252(a)(4)(B) to McCoy and others similarly situated, For whose reasons non-com- we have in parts discussed mercial, possession non-economic II.B.1 and of a pro- supra, we conclude that sim hibited photograph is ple entirely possession intrastate not, itself, nature. McCoy’s either circumstances are commercial or simi- in nature, economic lar to those held by that a the Sixth “home-grown” picture Circuit of a child Corp, taken grounds constitute personal maintained for use is for a fungible successful product, as-applied and that there is no challenge economic application supply and demand connection— statute. In Corp, possession otherwise —between defendant such picture charged with and the national child pornogra- multi-million phy, dollar namely, commercial photographs taken industry. .of sev- Thus, enteen-year-old in McCoy’s girl circumstances engaged and those in sexual ac- of others similarly situated, tivity with the his twenty-six-year-old wife. In of one or case, more that photographs as in not the us, does con case before offend- stitute a case in which photo ed “failing shop to reach employees the tipped off the fountainheads impede will police. regulation [the] only explicit The link between the of the interstate stream.” 236 F.3d at 230. defendant’s conduct and interstate com- In his dissent Kallestad, Judge Jolly merce was Agfa photographic paper, aptly stated: print used to photos: paper was

Today, the majority has manufactured embraced outside of the state in which logic the Morrison photos taken, eschewed. were developed, pro- and The majority holds that Congress cessed. can finding that the statute as indeed regulate non-economic, applied intrastate to Corp could not justified be un- criminal (possession conduct of child der the Clause, Commerce the court based McCoy’s “home-grown” emphasized, have the fact that principally

its decision in and was nev- photograph an attenuated connection never entered was there in- foreign and defendant’s behavior er intended between for stated, Nor, commerce: already ter-state as have merce. activity question are we faced with Corp’s that conclude [W]e McCoy substantially ability prosecute demonstrated of a state to type not of a to interstate solely or related a to be connected conduct. have before us her We this the facts of case. Un- commerce on jurisdiction, under of federal here, undisputed circumstances der jur- that such Clause. We hold involved, nor intended to was not Corp lacking is here. isdiction involved, shar- distribution or our decision The dissent criticizes pictures ques- ing with others of holding deliberately unwittingly or Clearly, Corp typi- tion .... was not provision on its statutory unconstitutional by Congress cal feared offender respect applied. than as Our face rather pornography addicted to would become express colleague simply wrong. is We ed industry inter- perpetuate the via application constitutional no view of the connections. state 2252(a)(4)(B) posses wholly to intrastate 236 F.3d 332-33. charac of a commercial or economic sion Likewise, nothing in the circumstances repeated through-out our ter. As we McCoy’s case substan- establishes discussion, disputes McCoy’s no one tial between her conduct connection and non-com possession was non-economic activity. any interstate commercial While mercial, analysis applies and our her McCoy may poor judgment have shown Nor is similarly situated. and to others parent, likely requires a substance idiosyncratic decided on the facts case rehabilitation, no one claims that she abuse de minimis an individual instance of pornogra- likely is or is to become a Lopez, 514 U.S. at 558 character. pher.29 kind of demonstrable cited the dissent S.Ct. 1624. cases relationship required between substantial singular and trivial instances of involve activity intrastate and interstate edges a particular conduct at the outer utterly lacking is here. reach; the case statute’s not here. Furthermore, McCoy’s circum- factual interpret applied the statute as We stances, possessed family in which she it McCoy’s conduct as falls within class use, with no photo personal own her purports to it in interstate intention distribute possession of a non-com reach: law pose do not en- foreign This and non-economic character. mercial of interstate commer- problem forcement activity represents class of a substantial pornography trafficking. cial child "While portion conduct covered it is true that child “does 2252(a)(4)(B). fact, in an at it was identifying the customarily bear a label tempt bring such conduct within Kallestad, produced,” state which was in authority constitutional problems identifi- 236 F.3d at such jurisdictional that would cluded the hook present cation are not this case. As we within, court, McCoy's sentencing pressed classify photo I at as 29. The district hearing, acknowledge photos as appeared to much: collected believe the heartland produced by terribly persons to diabolical photo sex- While the meets the definition of conduct, gratify prurient sexuality certainly interests in ually explicit can’t excused, young children. be one I think would be hard- result in photographs, all nearly any seek to result, attain that not the federal depiction, conceivable visual Corp, 236 government. The statute is unconstitu- 331, being F.3d at as having treated been tional applied. as

manufactured in interstate commerce. It Accordingly, we REVERSE the judg- is this hook that the Third and Seventh ment court, district and REMAND Circuits have “only determined tenu- with instructions to supersed- dismiss the ously related the ultimate activity regu- ing information. lated,” and “almost purposes useless” for REVERSED and REMANDED. of establishing jurisdic- Commerce Clause tion, Rodia, 194 F.3d at a view with TROTT, Circuit Judge, dissenting. which we in agreement. are See supra My colleagues In manner, II.B.3. its colorful have finessed an the dissent unavoid- able truth, accuses us of issue fly-swatting; case: whether we are 18 U.S.C. 2252(a)(4)(B) confronted elephant with the in the is bath- unconstitutional on its tub. Were we of a to engage They mind face. attempted to restrict same mode of commentary dissent, as the their holding to McCoy and to others “sim- we would Constitution, add “it’s the ami- ilarly situated,” but it is not clear me go.” dissent, See sum, at permits the law infra such a I limitation. thorough review of the Morrison factors so conclude because McCoy’s conduct persuades that, us applied to McCoy clearly falls within the language of the others similarly situated, statute, and because the Supreme Court upheld cannot be as a valid appears under such circumstances to have exercise of the power. Commerce Clause ruled applied” out “as challenges in Com- Circuit, Like the Sixth agree that there merce Clause my view, cases. if the are categories some which, of conduct conduct under falls plain review within the whether or not literally covered a stat- statute, language of the precedent requires face, ute on its cannot be said to “substan- us to take the on, statute head not carve tially affect” interstate commerce. Corp, pieces out of it. I Because disagree with 332-33; 236 F.3d Lopez, my colleagues’ approach to the issues as 558-59, 115 S.Ct. 1624. Such in- conduct well to their I holding, respectfully dis- cludes non-commercial, non-economic, sent. simple possession intrastate of photo- graphs use, for personal which formed the I basis of McCoy’s federal conviction. Among the principles first one learns when studying the III. Constitution in law CONCLUSION school is that our federal government is 2252(a)(4)(B)’s We hold that applica- one powers.” “enumerated McCulloch tion to the simple Maryland, Wheat. 17 U.S. (or a visual depiction depictions) that has 4 L.Ed. 579 Supreme As the mailed, not been shipped, transported explained, has “Our govern- national intended inter- ment is one of delegated powers alone. state distribution or for economic or com- Under our federal system the administra- use, mercial including exchange tion of justice criminal prohibited rests material prohibited other material, except states as Congress, justified acting cannot be within under scope punishment Clause. If of those delegated powers, for the has conduct in which McCoy engaged is against created offenses desir- the United lawful, able and it is the state that must States, States.” Screws v. United 1134 au- Clause Commerce Congress’ (1945) of cise 1495 1031, 89 L.Ed.

91, 109, 65 S.Ct. thority. con structural This opinion). (plurality government federal our that means

cept II granted powers the “only exercise can In other at 405. McCulloch, 17 U.S. it.” analytical an from this case come at I ple possess “a not words, does Congress my from friends different perspective authorize that would power police nary the particu- focus on They majority. legislation.” type of every of enactment responsibility McCoy’s Rhonda of lars 566, 549, 514 U.S. Lopez, v. States United sup- that photograph single pathetic 626 L.Ed.2d 131 S.Ct. 115 conviction, they conclude ports her not that Congress is by law enacted Any they her case—which of the details from is unconsti powers these in one of rooted the stat- category single into distill —that v. See United tutional. to her circum- applied” “as at issue ute L.Ed.2d 1740, 146 598, 120 S.Ct. U.S. 529 exercise an unconstitutional stances is remedy civil (2000) (striking down the compassionate My power. Congress’ Women Against the Violence provisions describing are not incorrect friends of Con exercise an unconstitutional Act as case of this facts microcosmic underlying And, authority). gress’ commercial, (2) not (1) wholly personal, law would such unauthorized although (4) intrastate, product (3) strictly by the Con passed if “unconstitutional” episode alcohol—-fueled an isolated —all States, genea such of the gress and her McCoy that Rhonda suggesting a state not render would logical defect prison. family help, need the same to enact powerless government conclude, Supreme However, I based rule. majority’s legal precedent, to Congress granted powers One grounded. correctly is not approach authority “to is the the Constitution whether is determinative real the several among ... commerce regulate in the statute described activity generically ” I, 8,§ cl. 3. art. Const. U.S. states.... interstate a substantial effect has has Supreme Court this regard, to criminaliza- subject that it is merce such of activi categories broad identified “three by Congress. tion under may regulate ty that majority’s I believe why The reason U.S. at Lopez, 514 power.” commerce simple: Su is viable is not approach (1) the use are They 115 S.Ct. that “where Lopez said preme Court (2) commerce, of interstate channels sub bears a statute regulatory general commerce, interstate instrumentalities the de relation stantial com things or persons instances of individual character minimis (3) that “sub activities merce, those of no conse arising under Id. stantially affect” interstate 558, 115 Lopez, U.S. quence.” third is the 558-59, It 115 S.Ct. original) (quoting challenging ques poses category n. Wirtz, v. Maryland will decide that when answered tion (1968), 20 L.Ed.2d 27, 88 S.Ct. i.e., case, whether outcome Nat’l grounds on other overruled prohibits U.S.C. Usery, v. League Cities por of child simple intrastate (1976), L.Ed.2d not, commercial whether nography, by Garcia grounds on other overruled trav materials been made has Auth., 469 Transit Metro. Antonio exer- San is a valid in interstate eled 528, 1005, U.S. 105 S.Ct. 83 L.Ed.2d 1016 that labor conditions in businesses hav (1985)). I take this passage Lopez to ing only a few employees engaged in mean here precisely what says: it the de or production commerce may not affect minimis nexus of Rhonda McCoy’s per- very much or Appel often. sonal interstate commerce is of lants therefore contend that defining “no consequence,” (1) so long as her con- covered enterprises in terms of their duct falls within purview of the stat- employees is permit sometimes to “the ute, as she stipulated, (2) has tail to wag the dog.” However, while statute itself which covers that activity is Congress has in some instances left to valid. The in Lopez Court articulated this the courts or to administrative agencies clarification to make clear that although the task of determining whether com Congress may not a use “relatively trivial merce is affected in particular a in impact on commerce as an excuse for stance, Darby 100, [312 U.S. 61 S.Ct. 451 general regulation broad of state pri- (1941)], itself recognized power activities,” id., vate if the general regula- Congress instead to declare en tory statute at does issue bear substan- tire class of activities affects commerce. tial commerce, relation to applied” an “as only question for the courts is then challenge is inappropriate. whether the class is “within the reach of The facts underlying the Court’s deci- ” power. The contention sion in Wirtz are interesting, but in Commerce Clause cases the courts instructive. Under attack in Wirtz as an power excise, trivial, individ alleged violation of scope of Commerce ual instances falling within rationally Clause authority awas decision Con- class activities has been put gress to defined include within the reach of the entirely to rest. Filburn, Wickard v. Fair Labor Standards Act of 1938 new 111, 127-128, U.S. 82, class S.Ct. employees argued toWirtz L.Ed. 122 have no connection whatsoever tradi- tional such as em- Wirtz, 392 192-93, U.S. at 88 S.Ct. 2017 (1) ployees (2) hospitals, institutions de- added) (footnotes omitted). voted to the care of the aged, disabled, or Supreme Court Usery, 426 U.S. (3) handicapped, and schools. The Su- 96 S.Ct. Wirtz, overruled but preme rejected Court this attack because only insofar as Wirtz stood for the proposi- it concluded that the employees in question tion that Congress could use the authority were within the well-established “enter- of the Commerce Clause to invade the prise concept,” which means that although domain of performance the States’ of es- the work that they themselves were doing government sential functions. In other re- was not typically connected to interstate gards, Wirtz’s Commerce Clause jurispru- commerce, the enterprise for they dence intact, remains as demonstrated by worked was connected, so as were some of the Court’s approving reference to it in their fellow employees. What the Court Lopez. As the explained in Usery, said about the enterprise concept and Con- gress’ Appellants to rely decision it in way no expanding challenge these the Fair Labor decisions[, i.e., Standards Act Fry v. States, sheds dis- United positive light on whether applied” “as chal- 95 44 L.Ed.2d lenges are appropriate (1975), context: Motel, Heart Atlanta Inc. Whether the “enterprise States, concept” defended on the “competition” theory or (1964),] L.Ed.2d 258 establishing

on the “labor dispute” theory, it is true the breadth of authority granted Con-

1136 Wirtz, had of words subsequent power. commerce the under gress aas “defined wheat rationally identified contrary, contention, is the Their economic with national direct- regulate of class activities” Congress seeks

when 194, 2017. S.Ct. at 88 public em- as 392 U.S. States overtones. the activities ly deaf constitu affirmative a Court simply turned transgresses an The ployers, power tiny that his request exercise on the to Roscoe’s ear limitation tional affirma- could power commerce circumstances other local purely crop akin the constitu- turning contained In the Act. tive limitations by be reached the challenge, applied” tion. “as Roscoe’s away said, 841, 2465. 96 S.Ct. at Court 426 U.S. Usery, reg- government by The maintenance illustrates cases that leading of the One undoubtedly for wheat price a is ulation of Wick principles of these application

the by 82, effectively as 111, accomplished 63 S.Ct. Filburn, can 317 v. ard was demand (1942). increasing Filburn the Roscoe sustaining L.Ed. 122 87 the 1941, produced he effect of The supply. limiting farmer. the private by a land, own on his the restrict of wheat us is to bushels before statute Although consumption. mar- produced his own mostly for bemay amount locally, wheat of his portion to which one he sold small well the extent ket and it in interstate ship sell by did not he market to the resort may forestall grew Unfortunately, Roscoe commerce. That needs. his own to meet producing marketing the than year wheat more de- to the own contribution appellee’s Agricultural federal the allowed quota by itself may be trivial wheat mand for Wickard, Act of Adjustment him from remove enough to is not determined Secretary Agriculture, where, as regulation scope of pro of wheat amount the total based contribution, together here, taken his pay penalty should Roscoe duced similarly situ- many others with that dis but transgression, this $117.11 ated, trivial. is far from proposed enjoined Wickard’s court trict 127-28, Wickard, 317 U.S. Act against enforcement penalty recently were restated principles These crop. Filb to his respect Roscoe v. Circuit by the Eleventh 1017(S.D.Ohio Helke, F.Supp. v. urn (11th Cir. Ballinger, 312 1942). 2002): dis- reversed Court Supreme The activity is regulated intrastate When all court, first of noting trict one, Con or economic a commercial “has been macrocosm industry as a wheat substan permits required stitution years.” some industry for problem to be on interstate tial effect 63 S.Ct. 82. Wickard, U.S. at impact of aggregate located terms in commercial then described com upon interstate activity regulated international as the as well the national Filburn, 317 U.S. Wickard merce. in- dimensions of the problem, dimensions L.Ed. 63 S.Ct. demand, grow- to the price supply, volving a gener that “where has held The Court From er, to the consumer. and cost a substantial bears regulatory al that Con- discussion, concluded the Court minimis de relation its Commerce well within gress arising instances of individual character production regulate authority to consequence.” of no that statute under no that had wheat, particular wheat even n. Wirtz, to interstate connection 2017. The permits Constitution such language of the arson statute so as not to aggregation effects to justify congres- reach type of structure Jones had de- regulation sional of purely intrastate stroyed fire. said, court “We con- economic when the absence of 844(1) clude that is not soundly read to such regulation would undercut a larger make virtually every arson in the country regulatory scheme affecting interstate a federal offense. We hold that the provi- commerce. Lopez, 561, 514 at U.S. 115 sion [‘property used interstate com- S.Ct. 1624. merce’] covers only property currently (Emphasis in original). used commerce or in an activity affect-

Ballinger ing then commerce.” 859, at illustrates Id. distinction 120 S.Ct. 1904. between economic and See also non-economic activi- United States v. Pappadopoulos, ty, and points out that Congress’ 522, (9th attempt- 64 F.3d Cir.1995) (the juris- regulation ed of activity failed in Morrison dictional element found in 18 U.S.C. because activity, against violence 844(1) wom- § does not cover the simple arson of en, was generically non-economic. As the residence). non-commercial private Had Supreme Morrison, said “a fair plain language of the arson statute reading of Lopez shows that the non-eco- encompassed the structure destroyed by nomic, criminal nature of the conduct at Jones, as the statute here clearly covers issue was central to our[rejection of such McCoy’s behavior, then the Court would regulation] in that case.” 529 have had no choice but to deal with the 610, U.S. at 120 S.Ct. 1740. In Lopez, the statute’s constitutionality in Commerce Court was influenced the fact that the Clause terms. I will discuss the ramifica- Gun Free School Zone Act had “nothing to tions of in part Jones IV opinion. of this do with or any ‘commerce’ sort economic enterprise.” Lopez, 514 561, III S.Ct. 1624. Thus, the resolution of this case boils Eight days after the decision in Morri- down to whether the review, statute under son, Supreme Court tackled another 18 U.S.C. which encom- case allegedly involving the Commerce passes a certain kind of posses- Clause: Jones States, v. United sion, passes muster, Commerce Clause L.Ed.2d whether McCoy’s categorically peculiar (2000). Jones, the Court was asked pellucid circumstances have a nexus to in- Jones to hold that the use of the federal terstate commerce. The answer to this statute, arson 844(1), 18 U.S.C. to prose- question, course, emerges appli- from an cute him for firebombing an owner-occu- cation of the four-factor Morrison test: pied private residence which was not used (1) whether any regulates statute commercial com- purpose exceeded the merce, activity authority that might under Com- deemed merce an Clause. economic activity, Jones had broadly “unsuccessfully defined; (2) urged, both before the whether the district court and has an appeal express Circuit, jurisdictional the Seventh element that re- 844(1), when stricts applied application the arson of a to activities that private residence ...” was have an explicit unconstitution- connection with or effect Jones, al. 529 U.S. at (3) commerce; S.Ct. 1904 whether added). The Court ultimately congressional findings support the judg- avoided the constitutional ment that in question has —and here is the by interpreting plain substantial effect on rub — inter-state Act of Rights Victims Abuse [activity] Child (4)

merce; whether 99-591, § 100 Stat. rela no. Pub.L. an attenuated has an offense made in effect on tionship to substantial [Morrison, 529 U.S.

terstate Therefore, 1740.] 610-12, 120 S.Ct. Zone Free School Gun laws—unlike Kallestad, and the Lopez Violence down Act struck Morri- Cir.2000) omit- Act invalidated marks (5th (quotation Against Women by Congress first ted). intended son—were although attack item foremost A. inter- spawned had vast nature illicit in to the the answer me that seems to underground It market. state economic has de- Congress is clear. certainly disgust- first product perverted and por- child many occasions termined drugs or sto- it has become—like ing, but it is and whether all kinds of nography product nonethe- commercial len cars—a has commercial explicitly or personal Cortes, F.3d 299 v. States See United less. industry, national massive into a turned Cir.2002) (9th (carjacking is 1030, 1037 film, pru- and photographs, wherein one an economic and of violence crime both a bought are and of children images rient crime). Thus, easily pass these laws mone- market for commodity sold as test. the Morrison step of first 1984, Congress consideration. tary support and agree with circuits Other said: v. Rob States See United this conclusion. that— finds Congress The (1st Cir.1998); inson, United 137 F.3d 652 developed Cir.1999), (1) has child pornography (3rd Rodia, F.3d 465 194 v. States organized, multi-million highly into a 1131, 120 denied, 529 U.S. rt. ce on a operates industry which dollar (2000); United 958 146 L.Ed.2d scale; nationwide (5th Kallestad, Cir. 236 F.3d v. States including large (2) thousands of children 234 F.3d Angle, v. 2000); States United and homeless runaway denied, numbers (7th Cir.2000), 533 U.S. cert. production exploited are youth L.Ed.2d 932, 121 S.Ct. ma- pornographic and distribution Bausch, (2001); United terials; denied, Cir.1998), (8th cert. subjects of

(3) as children L.Ed.2d 667 the use is harmful to materials pornographic emotional, and physiological, B. and of the individual health

mental society. stat- Next, address whether the we must No. Pub.L. ele- express jurisdictional Act of an Protection contains Child ute (1984). The 1986 activi- 98-292, 2, application 98 Stat. restricts ment that subject said: connection explicit the same an legislation on ties that commerce. Unlike on interstate or that— effect finds Lo- and at issue Morrison the statutes mul- (1) has become exploitation child posses- is restricted pez, industry, infiltrated ti-million dollar child sion of orga- elements operated mailed, been or has been that has crime, by a nationwide nized or transported in or shipped adver- openly of individuals network pro- or which foreign children. exploit tising their desire using duced materials which have been each initiative, enhancement of this it is shipped transported, by mailed so clear to me that Congress por- sees child including computer, means if nography as a “growing, predatory busi- exploits ness that (I) injures producing such most visual de- among vulnerable us” and “that the involves the piction use of a minor pornography trade operates conduct; across the engaging sexually explicit States, out major cities and alike, small towns reach consumers na- (ii) such depiction visual is of such Kallestad, tionwide.” 236 F.3d at 229. conduct. findings, These as far my reading of 2252(a)(4)(B). 18 U.S.C. concerned, them is collectively establish presence in this juris- statute of a that purely local impacts inter- element restricting dictional the reach of state commerce. the statute indicates that Congress regard- ed this statute exercise its Com- D. power, merce Clause not simply as a broad We come finally to the heart of the net cast purely over intrastate crime of matter: whether described in disapproved. the Fifth As Circuit the statute has a substantial effect on in- Kallestad, said in 236 F.3d at “What terstate or whether it is too jurisdictional hook does accomplish in attenuated Starting therefrom. from the ... prosecutions case is to limit under proposition that we have on our analytical 2252(a)(4)(B) section to a smaller universe product plate sold, bought, that is and provable offenses. It further reflects traded nationally, I agree with the Seventh Congress’s sensitivity to upon the limits in Angle, Circuit agrees in turn with power, commerce Congress’s and express Rodia: interest in regulating national markets.” Angle’s contention that pos- intrastate all circuits agree Not this analysis. with session of child pornography has little or Third Circuit Rodia and the Sev- bearing no on inter-state ig- commerce enth Angle Circuit in have determined that nores the interstate demand for child the connection jurisdictional between the pornography which Congress took into hook activity and the being regulated is so consideration in enacting statutory attenuated that “fail[s][by it guar- itself] scheme under instance, 2252. For “ antee regulated has a Congress found that pornogra- ‘child substantial effect on interstate commerce.” phy prostitution and child have become Rodia, 472; 194 F.3d at Angle, see also highly organized, multimillion dollar in- Nevertheless, F.3d at 336-37. operate dustries that on a nationwide notwithstanding the jurisdic- failure of the scale,’ prostitution and ‘that such hook, Angle tional and Rodia affirmed the the sale and porno- distribution of such statute because of the satisfactory nexus graphic materials are carried on to a between interstate commerce and the ac- substantial through extent the mails and regulated. I tivity agree with this result. other instrumentalities of interstate and ” Rodia, 482; Angle, F.3d at at F.3d foreign commerce.’ United States v. Winningham, F.Supp. 1074 n. (D.Minn.1996) (quoting S.Rep. No.

C. (1978), at 3-5 reprinted in 1978 When reading the various 40, 42-43). iterations of U.S.C.C.A.N. There can be Congress’ child pornography legislation no debate that “interstate trafficking in and the findings numerous support pornography child has an effect on inter- intrastate purely outlawing the By Rodia, F.3d at commerce.” state pornography child possession amended However, Congress can curb 2252(a)(4)(B), Congress the clause include in late 1988 § 2252 ma- these demand the nationwide to close a here, part, large issue at posses- that such believe We terials. regulatory- original loophole elsewhere,” repetition sion, “through “undercut being which was scheme a market sustain helps to create continued who pornographers depict- materials sexually explicit own pornography their to manufacture minors. ing at 479 Id. intrastate.” Lo- 656(quoting Robinson, that, Third Circuit with agree We 1624, 131 567, 115 S.Ct. pez, 514 regula- adding 626). First and join the We L.Ed.2d ra- scheme, have could tory is a there finding that Third Circuits as follows: tionally reasoned in- nexus, theory, between a market via manufacture, pornographers Some and the terstate use child possess, pornography. of child of a the boundaries within exclusively the bound-

state, only within and often F.3d at 337-38. Angle, 234 It property. own of their aries IV pornog- that those to think unrealistic what have exceeded may their own My colleagues content raphers will be have likely They wish to rendered they permits. will the law supply, hence “as pornograph- validity of explore opinion new or additional Many they believe of children. but I do not photographs applied,” ic conduct, particular will look pornographers option. McCoy’s those us, of new a source to each may appear market wan as mail material, through plain order the purview of clearly whether within falls Internet. through statuto- catalogs or under of the statute language of “home Therefore, possession jurisdic- it, including of ry construction stimu- may well Supreme grown” pornography what the Unlike tional element. in pornography Jones, a further interest to read impossible late it is Court did ani- eventually immediately or Simply put, she of the statute. McCoy out pornog- (a interstate for stipulated demand mates pornography child possessed to believe It is reasonable raphy. also fact) transported materials produced using discourag- proposition that related foreign commerce. in interstate por- possession ap- the intrastate “as ing the statute condemning upshot of of these (1) cause some will nography to tantamount is either therefore plied” leave the pornographers statute, child sepultus, hie condemning complete- pornography (2) child realm of overbroad, construing or face its as the inter- will reduce ly, which turn in Jones did Supreme statute as pornography. for demand state non-commercial covering intrastate not unconsti- this statute possession. Holding Id. at conduct, or, McCoy’s applied tutional of individual understanding this With “simple majority, to by the as described Congress system, in a market behavior depiction a visual possession intrastate that intra- rationally believed could mailed, or shipped, not been that has child pornography state intended and is not interstate transported inter- relationship to a substantial bears distribution, economic or for Moreover, as the First state use,” unconsti- may render commercial observed: Circuit tutional all intrastate child pornography 1, 197, Wheat. (1824), L.Ed. 23 possession prosecutions, even those where Jackson said, [Marshall] emphatic made production materials moved in inter- the embracing and penetrating nature of state commerce the child pornography [the Commerce power by Clause] warning “personal” was not in nature. that effective restraints on its exercise proceed must from political rather Congress than has declared that an entire judicial processes. Wickard, class U.S. at activities substantially affects in- 120, 63 S.Ct. 82. IWhat take this passage terstate commerce. activity That is child to mean in light Lopez pornography. statute, Morri- To the it is immate- son is not that there are no rial that the constitutional particular child pornography limits Congress’ use of under scrutiny produced for sale Clause authority, but that courts must trade. As be reiterated in Usery, “[e]ven hesitant judicial substitute legisla- purely intrastate in charac- tive judgment. Whatever a valid ter may be regulated by Congress, where covers or reaches is game. fair para- As a that activity, with combined the like con- phrase of the current saying goes, “It’s duct of others similarly situated affects ” statute, amigo.” among the states.... Id. at 840, 96 S.Ct. 2465 (quoting Fry, With U.S. Justice Jackson’s words in mind 1792). 95 S.Ct. these discrete decisions and distinc-

Congressional power belong tions political to the over pri- areas of rather than the judicial endeavor, process, vate even I when cannot its conclude exercise may pre-empt express beyond acted state law authority deter- minations include all contrary to the result produced

has commended itself to “interstate materials” with- collective Congress, statutory wisdom Thus, has been framework. held to I re- spectfully limited dissent. requirement “the means chosen by [Congress] must

be reasonably adapted to per- the end

mitted the Constitution.” Id. (quoting Motel, Inc., Heart Atlanta 348). A-Z INTERNATIONAL; Great This ease free doubt, from American Company, Insurance Judge Reinhardt’s opinion well-articulated Plaintiffs-Appellants, concludes; I am not oblivious to the difference between wheat and por- Michael PHILLIPS, James nography. They are as different as chalk Defendant-Appellee. But, and cheese. as generic commodities No. 01-56689. determined by Congress to part of a market, national they subject both are United States Court of Appeals, regulation. Therefore, Ninth Circuit. the factual non-commercial nature of a sin- Argued and Submitted Feb. 2003. gle item of the commodity is immaterial. Filed March Justice Jackson made additional As 1,May Amended ments Wickard about the Commerce Clause that must inform our analysis in

this case. Referring to Chief Justice Mar-

shall’s words in Gibbons v. Ogden, 9

Case Details

Case Name: United States v. Rhonda Anne McCoy

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Mar 20, 2003

Citation: 323 F.3d 1114

Docket Number: 01-50495

Court Abbreviation: 9th Cir.