United States v. Malloy

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 08-4136
MICHAEL MALLOY,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(8:06-cr-00574-AW-1)

Argued: March 25, 2009

Decided: May 28, 2009

Before DUNCAN, Circuit Judge, Robert J. CONRAD, Jr.,
Chief United States District Judge for the Western District
of North Carolina, sitting by designation, and Thomas D.
SCHROEDER, United States District Judge for the Middle
District of North Carolina, sitting by designation.

Affirmed by published opinion. Judge Duncan wrote the opin-
ion, in which Judge Conrad and Judge Schroeder joined.

COUNSEL

ARGUED: Gary Eugene Bair, BENNETT & BAIR, LLC,
Greenbelt, Maryland, for Appellant. Michael Joseph Leotta,
2 UNITED STATES v. MALLOY
OFFICE OF THE UNITED STATES ATTORNEY, Balti-
more, Maryland, for Appellee. ON BRIEF: Rod J. Rosen-
stein, United States Attorney, Baltimore, Maryland, Michele
W. Sartori, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Greenbelt, Maryland,
for Appellee.

OPINION

DUNCAN, Circuit Judge:

Appellant Michael Malloy challenges his conviction and
sentence under 18 U.S.C. § 2251(a) for producing a videotape
of himself and another adult having sex with a 14 year-old
girl ("S.G."). Among other issues, Malloy contends that the
statute is constitutionally infirm unless we interpret it to
incorporate a reasonable mistake of age defense. For the rea-
sons that follow, we affirm Malloy’s conviction and sentence.

I.

In October 2005, Malloy’s friend, Aaron Burroughs,
brought S.G. to Malloy’s home for the purpose of engaging
in sex with the two men. Petr.’s Br. at 4; J.A. 197-98. Bur-
roughs coached a junior varsity high school football team of
which S.G. was the manager. Malloy was a 33 year-old
United States Capital Police Officer. At the time, S.G. was a
14 year-old girl, born on November 6, 1990, who had recently
started tenth grade. Burroughs and Malloy videotaped each
other having sex with S.G. Later in the fall of 2005, Bur-
roughs again brought S.G. to Malloy’s home to engage in sex
with the two men. On this second occasion, S.G. was either
14 or had just turned 15 years of age.

The FBI began investigating in the summer of 2006. After
speaking with S.G. and Burroughs, FBI agents interviewed
 UNITED STATES v. MALLOY 3
Malloy and also executed a search warrant at his residence.
Malloy admitted to the agents that he had had sex with S.G.
on two occasions and had videotaped one encounter with his
Sony camcorder. Malloy also admitted that he thought S.G.
"looked young" when he first met her. J.A. 60, 266, 275.
Other than asking her how old she was, however, he did not
further investigate S.G.’s age. At Malloy’s residence, FBI
agents recovered the Sony camcorder and the videotape of the
sexual encounter.

Malloy was charged with sexual exploitation of a minor for
the purpose of producing a visual depiction in violation of 18
U.S.C. § 2251(a). This charge contains three essential ele-
ments: (1) the victim was less than 18 years old; (2) the defen-
dant used, employed, persuaded, induced, enticed, or coerced
the minor to take part in sexually explicit conduct for the pur-
pose of producing a visual depiction of that conduct; and (3)
the visual depiction was produced using materials that had
been transported in interstate or foreign commerce.

Malloy filed pretrial motions, including a motion to dismiss
the indictment as exceeding Congress’s power under the
Commerce Clause. The government filed a motion in limine
to preclude Malloy from offering a defense of reasonable mis-
take of age. At a pretrial motions hearing on September 11,
2007, the district court denied Malloy’s motions. The court
held that under Supreme Court and Fourth Circuit precedent,
"the commerce clause does empower Congress to regulate
purely local intrastate activities . . . so long as they are part
of an economic class of activities that have a substantial effect
on interstate commerce." J.A. 82. The court granted the gov-
ernment’s motion to disallow a mistake of age defense, rea-
soning that

this statute is very, very similar to statutory rape
kinds of cases. Most jurisdictions in this country
simply will not allow reasonable mistake-of-fact
defenses for these type[s] of crimes for the reasons
4 UNITED STATES v. MALLOY
that the legislature made it a crime and they pro-
scribed this when you’re dealing with minors to pro-
tect minors. And so . . . if she’s under 18, she was
the type of person that Congress intended to protect.1

J.A. 111.

At trial, Malloy stipulated that the videotape at issue was
"a visual depiction showing the defendant engaging in genital
and oral sexual intercourse with S.G.," and that it "proves
beyond a reasonable doubt that the defendant used S.G. to
take part in sexually explicit conduct for the purpose of pro-
1
The district court carefully and repeatedly considered Malloy’s reason-
able mistake of age defense. After initially granting the government’s
motion to preclude the defense, for example, the court allowed Malloy’s
counsel to "proffer the circumstances that reflects high care, high standard,
almost a faultless situation where there’s no way that your client was able
to determine that she was under 18." J.A. 110. After hearing the evidence
counsel proposed, the court refused to reverse its earlier ruling because
"[t]here was no proffer that the defendant, Mr. Malloy, investigated her
age or saw any documents that she provided that showed that she was over
18." J.A. 154.
Moreover, Malloy’s counsel was allowed to present much of the evi-
dence that would have supported a reasonable mistake of age defense in
the context of a challenge to the government’s proof on the essential ele-
ment of the victim’s actual age. The court allowed counsel to ask S.G.
such questions as what Burroughs instructed her to tell anyone who asked
about her age; whether she told the defendant her age; and whether she
posted misleading information about her age on the internet. Further, Mal-
loy repeatedly attacked the victim’s credibility by impeaching her with her
allegedly prior inconsistent statements regarding her age. The court
allowed Malloy to testify that he was told that the victim was a 19 year-
old college student who had just entered her sophomore year at Bowie
State. The court admitted such evidence despite subsequently concluding
that it "had very little relevance at all and it got very close to the prohibi-
tion that the court gave from the inception, that reasonable mistake of age
just isn’t a defense under these facts." J.A. 337. Indeed, the court com-
mented that "[i]n retrospect I probably shouldn’t have allowed any of it
because it really is not relevant. The defense really just had speculation."
J.A. 338.
 UNITED STATES v. MALLOY 5
ducing a visual depiction of that conduct." J.A. 185, 403. The
government established that S.G. was born in November 1990
through S.G.’s testimony and through a certified true copy of
her birth certificate. She was therefore 14 years old when
Malloy videotaped her having sex with him in October 2005.
The government also produced uncontested evidence that the
Sony video camera Malloy used was manufactured in Japan
and that the videotape cassette at issue was manufactured in
Mexico.

At the close of the government’s evidence, Malloy moved
for a judgment of acquittal. He argued that there had been an
impermissible constructive amendment to the indictment
because it incorrectly required that the prohibited act be done
"knowingly." J.A. 321. The court denied the motion, ruling
that the term "knowingly" in the indictment was merely "su-
perfluous" and that no constructive amendment had occurred.
J.A. 328, 330-31. On September 20, 2007, the jury returned
a verdict of guilty.

Although Malloy’s advisory sentencing guidelines range
was 324 to 360 months, the court sentenced him to the statu-
tory mandatory minimum of 15 years (180 months). In doing
so, the court rejected Malloy’s argument that the mandatory
minimum was grossly disproportionate to the crime commit-
ted in violation of the Eighth Amendment. This appeal fol-
lowed.

Malloy presents four issues on appeal: (1) that the district
court erred by refusing to allow a reasonable mistake of age
defense; (2) that that there was a constructive amendment to
the indictment under which he was charged; (3) that § 2251(a)
as applied to him was not a valid exercise of Congress’s Com-
merce Clause power; and (4) that his 15-year mandatory mini-
mum sentence violated the Eighth Amendment’s prohibition
against cruel and unusual punishment. We consider each in
turn.
6 UNITED STATES v. MALLOY
II.

A.

Malloy first argues that a mistake of age defense is consti-
tutionally required. Malloy maintains that without such a
defense § 2251(a) is unconstitutionally overbroad under the
First Amendment because it chills a substantial amount of
protected speech. This court reviews a challenge to the consti-
tutionality of a federal statute de novo. United States v.
Buculei, 262 F.3d 322, 327 (4th Cir. 2001).

To comprehensively address Malloy’s challenge, we con-
duct a sequential analysis. We focus first on the statute itself.
In doing so, we find that the statutory text, legislative history,
and judicial interpretation compel the conclusion that knowl-
edge of the victim’s age is neither an element of the offense
nor textually available as an affirmative defense. Informed by
this statutory analysis, we then turn to the crux of Malloy’s
argument: that in order for the statute to avoid unconstitu-
tional overbreadth we must engraft onto it a reasonable mis-
take of age defense.

1.

We begin with an analysis of the statute, which provides in
pertinent part:

Any person who employs, uses, persuades, induces,
entices, or coerces any minor to engage in . . . any
sexually explicit conduct for the purpose of produc-
ing any visual depiction of such conduct . . . shall be
punished . . . if that visual depiction was produced
using materials that have been mailed, shipped, or
transported in or affecting interstate or foreign com-
merce by any means . . . .
 UNITED STATES v. MALLOY 7
18 U.S.C. § 2251(a). It is immediately apparent that the stat-
ute on its face contains no requirement that the defendant
know that the victim is a minor.

In fact, Congress considered and explicitly rejected such a
knowledge requirement. The House Conference Report clari-
fied:

The Senate Bill contains an express requirement in
proposed section 2251(a) that the crime be commit-
ted ‘knowingly.’ The House amendment does not.
The Conference substitute accepts the House provi-
sion with the intent that it is not a necessary element
of a prosecution that the defendant knew the actual
age of the child.

H.R. Rep. No. 95-811, at 5 (1977) (Conf. Rep.) (emphasis
added); see also; S. Rep. No. 95-601, at 5 (1977).

The Supreme Court, too, has opined that knowledge of the
age of the victim is not required to convict a defendant under
§ 2251(a). In United States v. X-Citement Video, Inc., the
Supreme Court considered the interpretation of § 2252, which
prohibits the transportation, shipping, reception, or distribu-
tion of pornography produced using underage individuals. 513
U.S. 64, 68 (1994). The Court informed its analysis of § 2252
through a comparison with § 2251(a). The Court explained
that when Congress amended the two statutes in 1977, "the
new bill retained the adverb ‘knowingly’ in § 2252 while
simultaneously deleting the word ‘knowingly’ from
§ 2251(a)." Id. at 77. The Court reasoned that the difference
in congressional intent with respect to the statute prohibiting
the dissemination or receipt of child pornography, on the one
hand (i.e., § 2252), and the production of child pornography,
on the other (i.e., § 2251(a)), "reflects the reality that produc-
ers are more conveniently able to ascertain the age of per-
formers. It thus makes sense to impose the risk of error on
producers" of child pornography. Id. at 77 n.5.
8 UNITED STATES v. MALLOY
Like the district court here, the Supreme Court drew an
analogy between § 2251(a) and traditional statutory rape
offenses, stating that the presumption of a mens rea require-
ment in criminal law "expressly excepted sex offenses, such
as [statutory] rape, in which the victim’s actual age was deter-
minative despite defendant’s reasonable belief that the girl
had reached [the] age of consent." 513 U.S. at 72 n.2 (citation
and quotations omitted). The Court stated that under
§ 2251(a), just like under traditional statutory rape laws where
mistake of age is not a defense, "the perpetrator confronts the
underage victim personally and may reasonably be required to
ascertain that victim’s age." 513 U.S. at 72 n.2. The Court
also noted that the "opportunity for reasonable mistake as to
age" is extremely low in cases where the defendant comes
into direct contact with the victim and she is available for
questioning. Id. "[P]roducers may be convicted under
§ 2251(a) without proof they had knowledge of age." Id. at 77
n.5. A defendant’s awareness of the victim’s minority is not
an element of the offense.

Further, the text of § 2251(a) does not include an affirma-
tive defense for reasonable mistake of age. Evidence of Mal-
loy’s belief regarding S.G.’s age is irrelevant under the
statute, where it is the actual age of the victim that controls.
When Congress intends a statute to include an affirmative
defense, particularly in the context of the laws involving child
pornography and sexual exploitation of children, it can and
has included the defense in the statute’s text. See, e.g., 18
U.S.C. § 2243(c) (establishing a reasonable mistake of age
defense to a charge of sexual abuse of a minor in a prison or
institution, or in the special maritime or territorial jurisdiction
of the United States); 18 U.S.C. § 2252A(d) (allowing an
affirmative defense to possession of child pornography charge
if the defendant possessed less than three images and took
steps to destroy or report them). It has not done so here.

2.

We now turn to a consideration of Malloy’s constitutional
challenge. Apparently recognizing that the statutory text pro-
 UNITED STATES v. MALLOY 9
vides no grounds for raising a reasonable mistake of age
defense, Malloy contends that one must be judicially
engrafted for the statute to avoid reaching too broadly and
chilling a substantial amount of protected speech.

We first consider Malloy’s argument in light of the rulings
of our sister circuits that have addressed whether a reasonable
mistake of age defense is constitutionally necessary for stat-
utes that prohibit the production of child pornography to
avoid unconstitutional overbreadth. We then turn to Supreme
Court guidance to analyze Malloy’s overbreadth argument.
Informed by this analysis, we conclude that no reasonable
mistake of age defense is constitutionally required.

a.

Malloy’s argument mirrors, and relies heavily upon, a
Ninth Circuit decision, United States v. United States District
Court ("District Court"), 858 F.2d 534 (9th Cir. 1988), which
pre-dates the Supreme Court’s pronouncements in X-Citement
Video. A divided panel in District Court held that, although
§ 2251(a) does not provide for a mistake of age defense, the
First Amendment requires reading one in. The majority noted
that "we must be careful to ensure that, in regulating unpro-
tected speech [here, child pornography], Congress does not
also chill speech that is protected [here, adult pornography]."
858 F.3d at 538. Without a reasonable mistake of age defense,
the majority reasoned, producers of adult pornography "will
almost certainly be deterred from producing such materials
depicting youthful-looking adult actors; such actors may have
considerable difficulty in finding producers willing to cast
them; [and] audiences wishing to view films featuring such
actors would be denied the opportunity." Id. at 540. Since this
exclusion would, according to the majority, "seriously chill
protected speech," id., they engrafted a mistake of age
defense, concluding that "Congress would prefer section
10 UNITED STATES v. MALLOY
2251(a) with a reasonable mistake of age defense to no statute
at all."2 Id. at 542.

The Eighth and Eleventh Circuits have ruled to the con-
trary, holding that no mistake of age defense is necessary in
statutes prohibiting the production of child pornography. In
Gilmour v. Rogerson, the Eighth Circuit held that the Consti-
tution does not require a mistake of age defense under a state
statute, Iowa Code § 728.12(1),3 that is very similar to § 2251.
117 F.3d 368, 373 (8th Cir. 1997), cert. denied 522 U.S. 1122
(1998). There, Gilmour took sexually explicit photographs of
a 17 year-old girl. On more compelling facts than those pre-
sented here, Gilmour had met the girl in a bar, was told by the
girl’s boyfriend that she was 22, and also claimed to have ver-
ified her age by viewing her driver’s license. Like Malloy,
2
The majority noted that the defense was very narrow: "A defendant
may avoid conviction only by showing, by clear and convincing evidence,
that he did not know, and could not reasonably have learned, that the actor
or actress was under 18 years of age." Id. at 543. As such, it does not
appear that District Court helps Malloy. Beyond asking S.G. her age, he
did not conduct any investigation or view any documentary evidence. As
the district court here suggested, it is unlikely that such cursory question-
ing would meet the "clear and convincing evidence" standard. Implicitly
acknowledging these evidentiary deficiencies, at oral argument Malloy’s
counsel requested that this court engraft the reasonable mistake of age
defense with a lower "preponderance of the evidence" standard. However,
for the reasons that follow, we reject the argument that § 2251(a) requires
any affirmative defense.
3
Iowa Code § 728.12(1), titled "Sexual Exploitation of a Minor," pro-
vides:
It shall be unlawful to employ, use, persuade, induce, entice,
coerce, solicit, knowingly permit, or otherwise cause or attempt
to cause a minor to engage in a prohibited sexual act or the simu-
lation of a prohibited sexual act. A person must know, or have
reason to know, or intend that the act or simulated act may be
photographed, filmed, or otherwise preserved in a negative, slide,
book, magazine, computer, computer disk, or other print or visual
medium . . . or in any other type of storage system."
Iowa Code § 728.12(1); see Gilmour, 117 F.3d at 370.
 UNITED STATES v. MALLOY 11
Gilmour argued that the First Amendment required that he be
allowed to assert a reasonable mistake of age defense as an
affirmative defense to his prosecution. Gilmour, 117 F.3d at
372-73. The Eighth Circuit rejected that argument, holding
that the state statute did not provide a reasonable mistake of
age defense and was constitutional without one. The court
clarified that under "criminal statutes that protect children
from sexual predators . . . the child’s age is a long-established
exception to the general rule that proof of mens rea is
required; ‘the victim’s actual age [is] determinative despite
defendant’s reasonable belief that the girl had reached the age
of consent.’" Id. at 370 (citing Morissette v. United States,
342 U.S. 246, 251 n.8 (1952)). In doing so, the Eighth Circuit
compared the state statute with § 2251(a) and explicitly
considered—and rejected—the Ninth Circuit’s analysis in
District Court. 117 F.3d at 372.

In United States v. Deverso, the Eleventh Circuit likewise
held that no affirmative defense was constitutionally required
under another provision of the same statute at issue here. 518
F.3d 1250 (11th Cir. 2008). Deverso was charged with,
among other things, employing a minor to engage in sexually
explicit conduct outside the United States "for the purpose of
producing [a] visual depiction of such conduct" and transport-
ing the visual depiction into the United States in violation of
18 U.S.C. § 2251(c)(1) & (2). Id. at 1252, 1257. Deverso con-
tended that he was entitled to a mistake of age defense. The
Eleventh Circuit found that knowledge of age is not an ele-
ment of the offense and "that the Constitution does not man-
date a mistake of age defense under § 2251." Id. at 1258. Like
the Eighth Circuit in Gilmour, the Eleventh Circuit explicitly
rejected the Ninth Circuit’s holding in District Court. Id. at
1257-58.

b.

We turn now to an analysis of the statute under the over-
breadth doctrine, on which Malloy’s First Amendment chal-
12 UNITED STATES v. MALLOY
lenge depends. The Supreme Court has held that "[a]ccording
to our First Amendment overbreadth doctrine, a statute is
facially invalid if it prohibits a substantial amount of pro-
tected speech. The doctrine seeks to strike a balance between
competing social costs." United States v. Williams, 128 S. Ct.
1830, 1838 (2008). The government interest in prohibiting
criminal conduct must be weighed against the danger of chill-
ing constitutionally protected speech. Id. "In order to maintain
an appropriate balance, we have vigorously enforced the
requirement that a statute’s overbreadth be substantial, not
only in an absolute sense, but also relative to the statute’s
plainly legitimate sweep." Id.; see also New York v. Ferber,
458 U.S. 747, 771 (1982) (holding that a statute "should not
be invalidated for overbreadth unless it reaches a substantial
number of impermissible applications"). The Supreme Court
has held that facial challenges based on the overbreadth doc-
trine "are especially to be discouraged." Sabri v. United
States, 541 U.S. 600, 609 (2004).

In Ferber, the Supreme Court comprehensively considered
child pornography in the context of an overbreadth challenge
under the First Amendment. In weighing the government’s
interest as required by the overbreadth analysis, the Court
found that "the exploitive use of children in the production of
pornography has become a serious national problem" and that
"[t]he prevention of sexual exploitation and abuse of children
constitutes a government objective of surpassing importance."
Ferber, 458 U.S. at 749, 757 (citations omitted). The Court
cited a study showing that "sexually exploited children are
unable to develop healthy affectionate relationships in later
life, have sexual dysfunctions, and have a tendency to become
sexual abusers as adults," id. at 758 n.9 (citation omitted), as
well as other research chronicling the destructive effects of
child pornography, id. at 758-60 nn.9 & 10. The government
has a compelling interest in protecting even children who lie
about their age. As the Eighth Circuit notes, "the State may
legitimately protect children from self-destructive decisions
reflecting the youthful poor judgment that makes them, in the
 UNITED STATES v. MALLOY 13
eyes of the law, ‘beneath the age of consent.’"4 Gilmour, 117
F.3d at 372.

Because of the surpassing importance of the government’s
interest in safeguarding the physical and psychological well-
being of children,5 the government has greater leeway to regu-
late child pornography than it does other areas. See Ferber,
458 F.3d at 756 ("Like obscenity statutes, laws directed at the
dissemination of child pornography run the risk of suppress-
ing protected expression by allowing the hand of the censor
to become unduly heavy. . . . [H]owever, we are persuaded
that the States are entitled to greater leeway in the regulation
of pornographic depictions of children.").

Having considered the strong government interest identi-
fied by the Supreme Court in suppressing the production of
child pornography, we now assess whether § 2251(a) as writ-
ten poses a threat of chilling a substantial amount of protected
expressive activity. The protected expression the Ninth Cir-
cuit found to be threatened by the statute was the production
of adult pornography. Malloy’s argument echoes the Ninth
4
Similarly, the dissenting judge in District Court reasoned that
Congress intended to protect children . . . who try to pass as
adults to appear in pornography. Such children are in grave dan-
ger of sacrificing their physiological, emotional, and mental
health . . . . These children are inexperienced and uneducated;
most important, they lack the foresight we attribute only to
adults. Congress has chosen to protect such children against their
own immaturity, against the unreasoned, desperate choices chil-
dren are wont to make.
858 F.3d at 544 (Beezer, J., dissenting).
5
In arguing that the government’s interest in preventing child pornogra-
phy is of overriding importance, the Supreme Court has maintained that
such regulation is critical because "[a] democratic society rests, for its
continuance, upon the healthy, well-rounded growth of young people into
full maturity as citizens." Ferber, 548 F.3d at 757 (quotation and citation
omitted).
14 UNITED STATES v. MALLOY
Circuit’s analysis. See Petr.’s Br. at 14. We are persuaded by
neither.

We note as a practical matter that little legitimate pornogra-
phy would be chilled because producers of pornography are
already required to authenticate actors’ ages.6 See 18 U.S.C.
§ 2257(b)(1) (requiring that anyone who produces pornogra-
phy shall "ascertain, by examination of an identification docu-
ment containing such information, the performer’s name and
date of birth"). There are, moreover, other reasons why
§ 2251(a) does not pose a substantial risk of chilling protected
expression. First, only a subset of adult pornography is at
issue—namely, pornography made by producers who seek to
use "youthful-looking" actors or actresses. Second, because
the children depicted in child pornography frequently cannot
be found, the prosecutor must show that the subject is a minor
solely from the pictures. Consequently, most prosecutions for
child pornography involve a subject that is not simply
"youthful-looking" but unmistakably a child.7 H.R. Rep. No.
6
While it is certainly true, as the majority in District Court notes, that
documents can be forged, District Court, 858 F.3d at 540, the originals
exist somewhere (e.g., original birth certificates exist at the hospital of
birth, etc.) and the producer of pornography, because he has direct contact
with the subject, has access to the original documents, see id. at 546
(Beezer, J., dissenting). If the originals do not exist, the government would
have a very difficult time proving beyond a reasonable doubt that the actor
or actress is a minor (unless he or she is unmistakably a child, see infra
note 9 and accompanying text).
7
It was precisely this problem that prompted Congress to raise the age
of minority for the purpose of §§ 2251 & 2252 from 16 to 18 years. H.R.
Rep. No. 98-536, at 3, 7-8. As the Committee Report explains, the amend-
ment "changes the definition of minors protected by this chapter from a
person under the age of 16 years, to a person under the age 18 years. . . .
Usually the child who is depicted in child pornography cannot be located.
Proof of the child’s age has therefore been by circumstantial evidence. . . .
By raising the age to 18, if the child depicted does not look like an adult,
a conviction can be obtained." Id. The report added, "[r]aising the age . . .
would facilitate the prosecution of child pornography cases and raise the
effective age of protection of children from these practices, probably not
to 18 years of age, but perhaps to 16." Id. at 3.
 UNITED STATES v. MALLOY 15
98-536, at 3, 7-8 (1984). Statutes like § 2251(a) will not
inhibit producers of adult pornography from using youthful-
looking subjects who are not unmistakably children because
prosecution in such cases is rare. See District Court, 858 F.2d.
at 546 (Beezer, J. dissenting). And finally, producers of adult
pornography who wish to use youthful-looking subjects will
not be deterred by § 2251(a) for profit reasons: pornography
is lucrative.8 High demand creates powerful incentives that
will not be inhibited by a slim chance of prosecution. Given
the superior ability of a producer to ascertain the age of the
subject—through visual contact, documentary verification,
direct questioning, and reputational information—and the
substantial profit that exists in producing adult pornography,
we think it unlikely that producers of such pornography will
be chilled, much less substantially chilled, by the unavaila-
bility of a mistake of age defense in § 2251(a).9

Because the government interest at stake is significant and
§ 2251(a) does not substantially chill protected speech (espe-
cially relative to the statute’s plainly legitimate sweep), we
decline to engraft onto it a reasonable mistake of age defense
that is neither grounded in the statutory text nor mandated by
the Constitution.
8
See, e.g., BETH BARRETT, Porn is $12 Billion Industry, but Profits
Leave Valley, DAILY NEWS, June 5, 2007 (explaining that, in 2006, pornog-
raphy was a $12 billion industry and that it had quadrupled from 1991 to
2006); Porn Profits: Corporate America’s Secret, ABCNEWS.COM,
Jan. 28, 2003, available at http://abcnews.go.com/Primetime/
Story?id=132001&page=1 (last accessed on April 6, 2009) (explaining
that, in 2002, pornography was a $10 billion industry—bigger than the
NFL, the NBA, and Major League Baseball combined—and that some of
the nation’s best-known corporations are quietly sharing in its significant
growth and profits).
9
As the Supreme Court noted in X-Citement Video, "the perpetrator con-
fronts the underage victim personally and may reasonably be required to
ascertain that victim’s age," and the opportunity for a reasonable mistake
of age is extremely low when there is such direct contact. 513 U.S. at 72
n.2.
16 UNITED STATES v. MALLOY
B.

Malloy also argues that his constitutional due process rights
were violated because an "accused criminal has a fundamental
due process right to present a defense." Petr.’s Br. at 12. We
review a properly preserved constitutional claim de novo.
United States v. Hall, 551 F.3d 257, 266 (4th Cir. 2009).

Contrary to Malloy’s assertion, the record before us indi-
cates that he was afforded ample opportunity to defend him-
self. For instance, as we have noted, he was able to present
evidence intended to undermine the government’s claim that
S.G. was a minor. See supra note 1. As a constitutional chal-
lenge, Malloy’s argument therefore fails.

While Malloy’s argument is couched in terms of his due
process right to defend himself, the crux of his complaint is
that he was not allowed to present a particular defense. As
such, it is better framed as an evidentiary argument. We
review a district court’s refusal to admit defense evidence
under an abuse of discretion standard. United States v. Uzen-
ski, 434 F.3d 690, 708-09 (4th Cir. 2006). "A trial court
abuses its discretion when it acts arbitrarily or irrationally,
fails to consider judicially recognized factors constraining its
exercise of discretion or relies on erroneous factual or legal
premises." Id. at 709 (quotations and citation omitted).

Malloy’s argument is without merit because "a defendant’s
right to present a defense is not absolute: criminal defendants
do not have a right to present evidence that the district court,
in its discretion, deems irrelevant or immaterial." United
States v. Prince-Oyibo, 320 F.3d 494, 501 (4th Cir. 2003); see
also United States v. Etheredge, 254 F. App’x 969, 970 (4th
Cir. 2007) (affirming a district court’s refusal to allow evi-
dence despite the defendant’s argument that it "hindered his
ability to present a defense"). In Prince-Oyibo, for example,
the defendant argued that his fear of religious persecution was
an important part of his defense. 320 F.3d at 501. This court,
 UNITED STATES v. MALLOY 17
however, held that "the district court was within its discretion
in excluding the evidence of persecution as irrelevant" to
whether Prince-Oyibo intended to use an altered visa to enter
the United States. Id. at 502. Here, the evidence that Malloy
wished to present in his defense was irrelevant to the crime
charged and, therefore, it was properly excluded by the dis-
trict court.10 Evidence of a particular type of defense—here,
reasonable mistake of age—can be properly excluded by the
court without infringing on the general right of a defendant to
present a defense.

III.

Malloy next argues that the government and district court
constructively amended his indictment. The indictment
charged that Malloy

did knowingly employ, use, entice and coerce a
minor female to engage in sexually explicit conduct,
to wit, graphic sexual intercourse, for the purpose of
producing a visual depiction of such conduct, and
said depiction was produced using materials that
have been mailed, shipped, and transported in inter-
state and foreign commerce by any means.

J.A. 10 (emphasis added). Malloy argues that since the gov-
ernment was not required to prove that he knew the age of
S.G. and the jury instructions stated that he was not so
required, the government’s burden was impermissibly low-
ered, constructively amending his indictment. This court
reviews de novo a claim of constructive amendment to an
indictment. See United States v. Floresca, 38 F.3d 706, 714
(4th Cir. 1994).
10
As noted, the Supreme Court analogized § 2251(a) to statutory rape
laws—see X-Citement Video, 513 U.S. at 72 n.2—under which no reason-
able mistake of age defense has traditionally been permitted, despite a
defendant’s general right to present a defense.
18 UNITED STATES v. MALLOY
A constructive amendment occurs where "the indictment is
altered to change the elements of the offense charged, such
that the defendant is actually convicted of a crime other than
that charged in the indictment." United States v. Randall, 171
F.3d 195, 203 (4th Cir. 1999). When the government, through
its presentation of evidence or its argument, or the district
court, through its instructions to the jury, or both, broadens
the bases for conviction beyond those charged in the indict-
ment, a constructive amendment—sometimes referred to as a
fatal variance—occurs. See United States v. Redd, 161 F.3d
793, 795 (4th Cir. 1998). Not all differences between an
indictment and the proof offered at trial or the jury instruc-
tions rise to the "fatal" level of a constructive amendment. See
Randall, 171 F.3d at 203. When different evidence or jury
instructions are presented at trial but do not alter the crime
charged in the indictment, a mere variance occurs. Id. "A
mere variance does not violate a defendant’s constitutional
rights unless it prejudices the defendant either by surprising
him at trial and hindering the preparation of his defense, or by
exposing him to the danger of a second prosecution for the
same offense." Id. If the "indictment provides the defendant
with adequate notice of the charges against him and is suffi-
cient to allow the defendant to plead it as a bar to subsequent
prosecutions, a variance in proof at trial will not prejudice the
defendant." Redd, 161 F.3d at 795-96.

Malloy claims that the indictment against him was con-
structively amended because the indictment included the word
"knowingly" even though the elements of the offense charged
in the indictment do not contain a knowledge element. He
argues that, despite the inclusion of the word "knowingly,"
the government was not required to prove that his actions
were "knowing" in order to obtain a conviction; he was pre-
vented from showing that his actions were not "knowing"
(i.e., he could not raise the reasonable mistake of age
defense); and the jury was instructed that what Malloy knew
or believed about S.G.’s age was irrelevant. Petr.’s Br. at 20;
J.A. 321-31, 367.
 UNITED STATES v. MALLOY 19
This argument is unavailing. For the variance to be fatal,
Malloy must show that it prejudiced his defense. The record
reveals an absence of prejudice here. Approximately two
months before trial, the government filed a motion in limine
that set forth the language of § 2251(a) as well as the volumi-
nous case law supporting the proposition that "knowingly" is
not an element of the charge and that the government did not
have to prove that Malloy knew that S.G. was a minor.
Indeed, Malloy filed a responsive brief—again, well before
trial—in which he agreed with the government that it did not
have to put on any proof with respect to Malloy’s knowledge
of S.G.’s age. As such, Malloy cannot reasonably claim that
the word "knowingly" in the indictment resulted in actual
prejudice. Nor, given the pre-trial pleadings, can he claim that
he was convicted of "a distinct, unindicted offense" from that
set forth in the indictment. Floresca, 38 F.3d at 710. Malloy
has shown no danger that he will be exposed to possible re-
prosecution on the § 2251(a) charge in the future. He was
made aware of the language of the statute under which he was
charged far in advance of trial.11

Here, the crime charged in the indictment—the sexual
exploitation of S.G. for the purpose of producing a visual
depiction in violation of 18 U.S.C. § 2251(a)—was the charge
on which Malloy was tried. There was no surprise, no hin-
drance in trial preparation, and no prejudice. Malloy knew
that the word "knowingly" was not in the statute, and he knew
that no knowledge element was included in the standard jury
11
Although not controlling, we note that the Eleventh Circuit addressed
this issue as well in Deverso, 518 F.3d 1250. There, the defendant was
convicted under a different subsection of the same general statute at issue
in this case, § 2251, and the indictment also contained the word "know-
ingly." 518 F.3d at 1258 n.2. The Eleventh Circuit concluded that there
was no constructive amendment and found "that the Government’s inclu-
sion of the word ‘knowingly’ in the indictment was mere surplusage. Con-
gress defines the elements of an offense, not the charging document.
Surplusage in an indictment may be deleted without any legal error." Id.
(citation omitted).
20 UNITED STATES v. MALLOY
instructions. Malloy suffered no prejudice; he was not con-
victed of a distinct, unindicted offense; and there is no danger
that he will be re-prosecuted for the same offense. Conse-
quently, there was no constructive amendment.

IV.

Malloy next argues that § 2251(a) as applied to his case
exceeds Congress’s authority under the Commerce Clause.
We review de novo a challenge to the constitutionality of a
federal statute. United States v. Buculei, 262 F.3d 322, 327
(4th Cir. 2001).

In United States v. Forrest, this court upheld a defendant’s
convictions for production and possession of child pornogra-
phy which itself had never crossed state lines, but which was
produced using cameras that were manufactured outside the
state. 429 F.3d 73, 78-79 (4th Cir. 2005). In doing so, we
cited the Supreme Court’s holding in Gonzales v. Raich, 545
U.S. 1 (2005), which "reaffirmed the long-standing principle
that the Commerce Clause empowers Congress to regulate
purely local intrastate activities, so long as they are part of an
‘economic class of activities that have a substantial effect on
interstate commerce.’" Forrest, 429 F.3d at 78 (citing Raich,
545 U.S. at 16). This court held that "[b]ecause Congress pos-
sessed a rational basis for concluding that the local production
and possession of child pornography substantially affect inter-
state commerce, ‘the de minimis character of individual
instances arising under the statute is of no consequence.’"
Forrest, 429 F.3d at 79 (citing Raich, 545 U.S. at 17).

Our sister circuits to have considered such a Commerce
Clause challenge in light of Raich have similarly upheld the
constitutionality of federal child pornography statutes in cases
of purely intrastate possession or production. See, e.g., United
States v. McCalla, 545 F.3d 750, 755 (9th Cir. 2008) ("Given
Congress’s broad interest in preventing sexual exploitation of
children, it is eminently rational that Congress would seek to
 UNITED STATES v. MALLOY 21
regulate intrastate production of pornography even where
there is no evidence that it was created for commercial pur-
poses."); United States v. Blum, 534 F.3d 608, 609, 611 (7th
Cir. 2008) (holding that a conviction under § 2251(a) for the
local production of child pornography does not exceed Con-
gress’s Commerce Clause authority and noting that "Congress
in enacting [§ 2251] recognized the danger posed by any child
pornography regardless of origin"); United States v. Sullivan,
451 F.3d 884, 890-92 (D.C. Cir. 2006) (holding that the appli-
cation of § 2252A to the intrastate possession of child pornog-
raphy does not exceed Congress’s Commerce Clause
authority); United States v. Maxwell, 446 F.3d 1210, 1218
(11th Cir. 2006) ("[I]t is within Congress’s authority to regu-
late all intrastate possession of child pornography."); United
States v. Chambers, 441 F.3d 438, 454-55 (6th Cir. 2006)
(holding that a conviction for possession of child pornography
in Kentucky, where the Polaroid film which was used to pro-
duce the images was manufactured out of state, does not
exceed Congress’s Commerce Clause authority); United
States v. Jeronimo-Bautista, 425 F.3d 1266, 1272-73 (10th
Cir. 2005) (holding that a conviction under § 2251(a) for local
production of child pornography when the materials used to
produce the contraband had traveled in interstate commerce
does not exceed Congress’s Commerce Clause authority).

Despite this well-settled federal law, Malloy argues that
because he allegedly did not know that he was producing
child pornography at the time he videotaped himself and his
friend having sex with 14 year-old S.G., "he was neither a
consumer nor supplier of child pornography" and therefore
his production of child pornography had a "null effect" on the
"national market for child pornography." Petr.’s Br. at 28. But
that is not the test.12 This court need not examine the specific
12
We note, as well, that this construction is merely an attempt by Malloy
to hang his reasonable mistake of age defense on another constitutional
hook.
22 UNITED STATES v. MALLOY
effect on commerce of this defendant’s child pornography activ-
ities.13

Here, there was unquestionably "local" production of child
pornography with a video camera and videotape that had trav-
eled in foreign commerce. Congress has concluded, and this
court has upheld Congress’s conclusion, that such production
is "part of an ‘economic class of activities that have a substan-
tial effect on interstate commerce.’" Forrest, 429 F.3d at 78
(citing Raich, 545 U.S. at 16). Malloy’s claim that his conduct
was "unknowing" does not alter this result: the test is not
whether the defendant knew he was engaging in an "economic
class of activities that have a substantial effect on interstate
commerce," but whether he in fact was. Forrest, 429 F.3d at
78. Consequently, we hold that § 2251(a) as applied to Malloy
was a valid exercise of Congress’s Commerce Clause power.

V.

Finally, Malloy challenges the 15-year sentence imposed
by the district court pursuant to the statutory mandatory mini-
mum under 18 U.S.C. § 2251(e) as a violation of the Eighth
Amendment’s prohibition against cruel and unusual punish-
ment. Again, claims of constitutional error are reviewed de
novo. United States v. Myers, 280 F. 3d 407, 416 (4th Cir.
2002).

This court has held that "proportionality review [under the
Eighth Amendment’s cruel and unusual punishment clause] is
not available for any sentence less than life imprisonment
without the possibility of parole." United States v. Ming
Hong, 242 F.3d 528, 532 (4th Cir. 2001). As Malloy recog-
13
Again, as we noted in Forrest, "[b]ecause Congress possessed a ratio-
nal basis for concluding that the local production and possession of child
pornography substantially affect interstate commerce, ‘the de minimis
character of individual instances arising under the statute is of no conse-
quence.’" 429 F.3d at 79 (citing Raich, 545 U.S. at 17) (emphasis added).
 UNITED STATES v. MALLOY 23
nized at oral argument, because he received less than life
without parole, proportionality review is not available under
our precedent.14

VI.

For the aforementioned reasons, Malloy’s conviction and
sentence are

AFFIRMED.

14
Even if proportionality review were available, however, it likely
would not change the result here. The Supreme Court has explained that
"[s]evere, mandatory penalties may be cruel, but they are not unusual in
the constitutional sense, having been employed in various forms through-
out our Nation’s history." Harmelin v. Michigan, 501 U.S. 957, 994-95
(1991). The imposition of Malloy’s 15-year sentence was for the very seri-
ous offense of sexual exploitation of a minor, and it is a result mandated
by Congress. Our sister circuits to have considered the issue have also
rejected the Eighth Amendment challenge to § 2251. See United States v.
Higgins, No. 08-13872, 2009 WL 212078 (11th Cir. Jan. 30, 2009)
(unpublished); United States v. Davis, No. 08-30154, 2009 WL 33631 (5th
Cir. Jan. 7, 2009) (unpublished); United States v. Polk, 546 F.3d 74, 74-
78 (1st Cir. 2008).