Terry E. Sehaffner appeals the district court’s denial of his motion to dismiss the indictment charging him with the sexual exploitation of a child in violation of 18 U.S.C. § 2251(a). Mr. Sehaffner pleaded g-uilty, but his plea agreement allowed him to seek review of the district court’s denial of his motion to dismiss. Mr. Sehaffner argues that applying § 2251(a) to his conduct exceeds the authority of the federal government under the Commerce Clause of the Constitution of the United States. For the reasons set forth in this opinion, we affirm the district court’s denial of his motion to dismiss the indictment.
I
BACKGROUND
A. Facts
In April 1997, a 15-year-old girl ran away from her Wisconsin foster home and
Mr. Schaffner eventually drove the girl back to Wisconsin and dropped her off at a friend’s house. A day and a half later, Mr. Schaffner picked the girl up and took her back to his residence. On April 21, 1997, sheriffs deputies from Dunn County, Wisconsin, discovered the girl at Mr. Schaff-ner’s home and returned her to the foster home. One month later, an aunt of Mr. Schaffner’s children discovered the nude photograph inside a heating vent in Mr. Schaffner’s bathroom. The woman gave the photograph to her sister, the children’s mother, who turned the photograph in to the police. Dunn County investigators later learned that Mr. Schaffner had shown the photograph to two acquaintances.
B. Proceedings . Before the District Court
On January 12, 2000, a federal grand jury returned a one-count indictment charging Mr. Schaffner with knowingly using and inducing a minor to engage in sexually explicit conduct — specifically, the lascivious exhibition of the minor’s genitals and pubic area — for the purpose of visually depicting such conduct in violation of 18 U.S.C. § 2251(a). The indictment further charged that the visual depiction was transported in interstate commerce. Section 2251(a) is captioned “Sexual Exploitation of Children” and provides in relevant part that
[a]ny person who employs, uses, persuades, induces, entices, or coerces any minor to engage in ... any sexually explicit conduct for the purpose of producing any visual depiction of such conduct, shall be punished as provided in subsection (d) ... if such visual depiction has actually been transported in interstate or foreign commerce or mailed.
18 U.S.C. § 2251(a).
Mr. Schaffner moved to dismiss the indictment. He argued that the application of § 2251(a) to his conduct exceeded the constitutional authority of the federal government under the Commerce Clause. Relying upon
United States v. Lopez,
On May 5, 2000, the magistrate judge recommended that the district court deny Mr. Schaffner’s motion. The magistrate judge relied in part on our decision in
United States v. Bell,
The district court adopted the magistrate judge’s findings of fact and conclusions of law and determined that Mr. Schaffner’s conduct became subject to Congress’ authority under § 2251(a) once the photograph crossed state lines. On May 15, 2000, Mr. Schaffner pleaded guilty pursuant to a written plea agreement that allowed him to appeal the district court’s denial of his motion to dismiss the indictment. The district court sentenced Mr. Schaffner to 140 months’ incarceration and 36 months’ supervised release.
II
DISCUSSION
A. Standard of Review
Mr. Schaffner submits that his conduct did not affect commerce among states and is thus outside the scope of Congress’ Commerce Clause powers. We review rulings regarding the constitutionality of a federal statute de novo.
See United States v. Wilson,
B. Lopez and the Three Approaches to Commerce Clause Analysis
The Commerce Clause gives Congress power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const, art. I, § 8, cl. 3. In
Lopez,
the Supreme Court noted that the Commerce Clause permits Congress to regulate and protect (1) the use of the channels of interstate commerce (“category one”); (2) the instrumentalities of interstate commerce, or persons or things in interstate commerce even though the threat may come only from intrastate activities (“category two”); and (3) those activities having a substantial relation to interstate commerce (“category three”).
See Lopez,
Given the overlapping nature of the
Lopez
categories, we believe that we shall reach a more comprehensive appreciation of the congressional determination embodied in § 2251(a) if we assess the statute and the acts before us from each of the perspectives set forth in
Lopez
and permit those different vantage points to east illuminating “cross-lights on one another.”
Niemotko v. Maryland,
1. Category One: Channels of Interstate Commerce
As we noted in
United States v. Kenney,
In
Kenney,
we explicitly considered the scope of Congress’ authority to regulate the channels of interstate commerce and concluded that 18 U.S.C. § 922(o), which outlaws the transfer or possession of machine guns, did not fit comfortably within this analytical framework.
See Kenney,
Notably, the application of § 2251(a), at issue in this case, differs from § 922(o) in precisely the way that we found so significant in
Kenney.
Unlike § 922(o), the activity here is tied specifically to interstate activity. The jurisdictional nexus must be established; the picture must have been transported in interstate commerce, a movement that Congress may prohibit in order to prevent the spread of injurious or immoral uses.
See Lopez,
2. Category Two: “Things” in Interstate Commerce
The plain language of § 2251(a) regulates the movement of visual depictions of child pornography in interstate commerce. The Supreme Court’s formulation of its three analytical categories in
Lopez
explicitly included within the second category the “regulation” of “things in interstate commerce,”
We believe that the symbiotic relationship of categories one and two, which the Tenth Circuit aptly perceived in its analysis of the firearms provision, also is present with respect to the provision before us today prohibiting the transportation of child pornography. Through the invocation of an explicit jurisdictional nexus, Congress has limited the scope of its regulation to the transportation of the item in interstate commerce. Thus, it has sought to prevent the spread of pornographic material depicting children by forbidding its presence in interstate commerce.
3. Category Three: Substantial Effect on Interstate Commerce
In
United States v. Robertson,
In Lopez, the criminal activity did not involve any direct interstate movement. The mere possession of a firearm in a school zone comprised the completed criminal offense. Therefore, the Supreme Court dismissed the applicability of the first two analytical categories to 18 U.S.C. § 922(q), the statute proscribing the possession of a firearm in a school zone:
The first two categories of authority may be quickly disposed of: § 922(q) is not a regulation of the use of the channels of interstate commerce, nor is it an attempt to prohibit the interstate transportation of a commodity through the channels of commerce; nor can § 922(q) be justified as a regulation by which Congress has sought to protect an instrumentality of interstate commerce or a thing in interstate commerce.
Lopez,
Since
Lopez,
the Supreme Court has employed category three to strike down one other law and limit the application of a second.
See United States v. Morrison,
The Court also used the third
Lopez
category to circumscribe the federal arson law, 18 U.S.C. § 844(i). In
Jones,
the Court held that 18 U.S.C. § 844(i), which makes it a federal crime to destroy a building used in interstate commerce or in an activity affecting interstate commerce, may not reach an owner-occupied residence not used for any commercial purpose.
See Jones,
The photograph at issue in this case actually traveled across state lines. As in Bell, where the movement of a weapon across state lines satisfied the commerce element of the statute, the interstate movement of the photograph provides a sufficient nexus to interstate commerce. Here, as applied to Mr. Schaffner, the jurisdictional element makes federal criminal responsibility turn on the actual movement of the pornographic item in interstate commerce. In short, this case does not involve local activity that impacts interstate commerce only obliquely or not at all. Rather, the local activity comes within the ambit of the prohibition because interstate movement actually takes place. The criminal activity is inducing a minor to participate in the taking of a photograph and the photograph’s movement in interstate commerce. The actual movement of the photograph across state lines directly implicates interstate commerce and the legitimate congressional concern that this evil not be spread or encouraged through the use of the channels of interstate commerce. It would have been entirely rational for Congress to have determined that material such as this does not stay in one place. Furthermore, Congress could have determined that the most effective way of curbing its spread was to sanction the producer whenever his product crossed a state line and had the opportunity to fuel the demand for such material in another locale. Because there is a rational basis for this congressional decision, we must let it stand.
Conclusion
It is undisputed that the photograph in question crossed state lines. Thus, prosecution under § 2251(a) in this case is a permissible exercise of Congress’ authority under the Commerce Clause. Accordingly, the district court’s denial of Mr. Schaff-ner’s motion to dismiss the indictment is affirmed.
AFFIRMED.
Notes
. In
United States v. Lopez,
. In
Navegar, Inc. v. United States,
. We note that the Court, at a later point in its
Lopez
opinion, omits the term '‘regulate” from its description of the second category.
Lopez,
.
See United Stales
v.
Angle,
.Other circuits have agreed with
United States v. Black,
. In
United States v. Bell,
Had Mr. Bell gone to trial, the government would have been required to prove that the weapon he sold to the undercover agent had traveled in interstate commerce. In other words, to secure a conviction under § 922(g)(1) the government had to prove exactly what Lopez found to be missing under § 922(q). Because Mr. Bell entered a guilty plea, he admitted the existence of a factual basis for the requirement of a nexus with interstate commerce.
Bell,
There have been subsequent cases from this circuit upholding § 922(g)(1), as well as other provisions of § 922, using the same, non-categorical rationale as Bell:
§ 922(g)(1): United States v. Williams,128 F.3d 1128 , 1133-34 (7th Cir.1997); United States v. Lewis,100 F.3d 49 , 51-53 (7th Cir.1996); United States v. Bradford,78 F.3d 1216 , 1222-23 (7th Cir.1996); and United States v. Lee,72 F.3d 55 , 58-59 (7th Cir.1995).
§ 922(g)(8): United States v. Wilson,159 F.3d 280 , 285-87 (7th Cir.1998).
§ 922(g)(9): Gillespie v. City of Indianapolis,185 F.3d 693 , 705-06 (7th Cir.1999). § 922(u): United States v. Hardy,120 F.3d 76 , 77-78 (7th Cir.1997) (per curiam).
