United States v. Jeronimo-Bautista

F I L E D
United States Court of Appeals
Tenth Circuit

October 12, 2005
PUBLISH
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.
No. 04-4137
VIRGILIO JERONIMO-BAUTISTA,
also known as Virgilino Jeronimo,

Defendant-Appellee.

Appeal from the United States District Court
for the District of Utah
(D.C. No. 2:04-CR-81-TS)

Michael S. Lee, Assistant United States Attorney (Paul M. Warner, United States
Attorney, and Karin M. Fojtik, Assistant United States Attorney, with him on the
briefs), Salt Lake City, Utah, for Plaintiff-Appellant.

Mary C. Corporon, Corporon & Williams, P.C., Salt Lake City, Utah, for
Defendant-Appellee.

Before SEYMOUR, PORFILIO and EBEL, Circuit Judges.

SEYMOUR, Circuit Judge.
 Virgilio Jeronimo-Bautista was indicted, in part, for coercing a minor to

engage in sexually explicit conduct “for the purpose of producing visual

depictions of such conduct . . . using materials that have been . . . transported in

interstate and foreign commerce,” in violation of 18 U.S.C. § 2251(a). The

district court dismissed the charge, concluding that as applied to Mr. Jeronimo-

Bautista, § 2251(a) exceeded Congress’ authority under the Commerce Clause.

United States v. Jeronimo-Bautista, 319 F. Supp. 2d 1272 (D. Utah 2004). The

government appeals, and we reverse.

I

This case arises out of Mr. Jeronimo-Bautista’s motion pursuant to F ED . R.

C RIM . P. 12(b)(3)(B), in which he sought the dismissal of his indictment. He

contended the district court lacked subject matter jurisdiction over the crime

charged against him because the acts he allegedly committed “did not constitute

any conduct impacting interstate commerce, or any subject or matter properly

within the purview of the federal government.” App. at 13. While Mr. Jeronimo-

Bautista asserts he is actually innocent, for the purposes of our review of the

district court’s grant of Mr. Jeronimo-Bautista’s Rule 12(b)(3)(B) motion we

make all factual inferences in favor of the government, assuming it could prove

the facts alleged against Mr. Jeronimo-Bautista at a trial. See United States v.

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Hall, 20 F.3d 1084, 1087 (10th Cir. 1994) (citing United States v. Sampson, 371

U.S. 75, 78-79 (1962)) (allegations in indictment are treated as true when

reviewing Rule 12(b) motion to dismiss). Accordingly, for the purposes of this

appeal only, we assume the following facts.

On January 29, 2004, Mr. Jeronimo-Bautista and two other men, while in

the company of a thirteen year-old girl, entered a vacant residence in Magna,

Utah. At some point the girl became unconscious, possibly after ingesting an

intoxicating substance. After she lost consciousness, the three men removed her

clothing, sexually assaulted her, and took photographs of their actions. The

camera used to take the photographs was not manufactured in the state of Utah.

One of the men took the film to a one-hour photo lab for processing. In the

course of developing the film, staff at the lab noticed images that appeared to

depict the sexual assault of a minor female. The manager of the lab called the

police, who viewed the photographs and then initiated an investigation resulting

in the arrest and indictment of Mr. Jeronimo-Bautista. As noted by the district

court, it was undisputed that Mr. Jeronimo-Bautista was a citizen of Mexico and

resided in the State of Utah. Jeronimo-Bautista, 319 F. Supp. 2d at 1274. The

victim was born in Utah and was not transported across state lines in connection

with the acts charged in the indictment. Id. Moreover, “[t]he photos were never

disseminated, were not stored or transmitted electronically via the Internet, the

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United States Postal Service, nor by any other method across state lines or

internationally. There is no indication that [Mr. Jeronimo-Bautista] had any

intention of so transmitting or storing the images.” Id.

The indictment charged that Mr. Jeronimo-Bautista, along with the two

other men 1

did knowingly employ, use, persuade, induce, entice, and coerce a
minor . . . to engage in sexually explicit conduct for the purpose of
producing visual depictions of such conduct, which visual depictions
were produced using materials that have been mailed, shipped, and
transported in interstate and foreign commerce, and did aid and abet
each other therein,

app. at 11-12, thereby violating § 2251(a) (production of child pornography) 2 and

18 U.S.C. § 2 (aiding and abetting). Mr. Jeronimo-Bautista moved to dismiss the

indictment on the ground that the district court did not have subject matter

1
Mr. Jeronimo-Bautista’s co-defendants are not parties to this appeal.
2
18 U.S.C. § 2251(a) reads in full:
Any person who employs, uses, persuades, induces, entices, or
coerces any minor to engage in, or who has a minor assist any other
person to engage in, or who transports any minor in interstate or
foreign commerce, or in any Territory or Possession of the United
States, with the intent that such minor engage in, any sexually
explicit conduct for the purpose of producing any visual depiction of
such conduct, shall be punished as provided under [this statute], if
such person knows or has reason to know that such visual depiction
will be transported in interstate or foreign commerce or mailed, if
that visual depiction was produced using materials that have been
mailed, shipped, or transported in interstate or foreign commerce by
any means, including by computer, or if such visual depiction has
actually been transported in interstate or foreign commerce or
mailed.

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jurisdiction over the acts charged against him, contending § 2251(a) violated the

Commerce Clause as applied to him. The district court agreed, concluding that

Mr. Jeronimo-Bautista’s charged activity “was not of a type demonstrated to be

substantially connected or related to interstate commerce.” Jeronimo-Bautista,

319 F. Supp. 2d at 1282. This case is now before us on the government’s appeal.

II

We review “challenges to the constitutionality of a statute de novo.”

United States v. Dorris, 236 F.3d 582, 584 (10th Cir. 2000). The United States

Constitution grants to Congress the “Power to . . . regulate Commerce . . . among

the several States.” U.S. C ONST . art I, § 8, cl. 3. As relevant here, “Congress’

commerce authority includes the power to regulate those activities having a

substantial relation to interstate commerce, i.e., those activities that substantially

affect interstate commerce.” United States v. Lopez, 514 U.S. 549, 558-59 (1995)

(internal citations omitted). Hence we must determine whether Mr. Jeronimo-

Bautista’s local production of pornographic images of a child substantially affects

interstate commerce.

In addressing Mr. Jeronimo-Bautista’s as applied challenge to the statute,

the district court noted the four factors delineated by the Supreme Court in United

States v. Morrison, 529 U.S. 598 (2000), and in Lopez “for consideration in

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addressing the constitutionality of a statute based upon Commerce Clause

authority.” Jeronimo-Bautista, 319 F. Supp. 2d at 1278. The court accurately

described those factors as (1) whether the prohibited activity is commercial or

economic in nature; (2) whether the statute’s reach was limited by an express

jurisdictional element; (3) whether Congress made findings about the effects of

the prohibited conduct on interstate commerce; and (4), whether there exists a

link between the prohibited conduct and the effect on interstate commerce. Id.

Working its way through the Lopez/Morrison factors, the district court first

rejected the argument that Mr. Jeronimo-Bautista’s activity was economic in

nature and, in doing so, rejected the assertion that Mr. Jeronimo-Bautista’s

intrastate activities could, in the aggregate, affect interstate commerce. Id.

Second, the court determined § 2251(a)’s express jurisdictional element failed “to

place any meaningful restrictions on federal jurisdiction and fail[ed] to establish

the link between the violation and interstate commerce.” Id. at 1280. Third, the

court was not convinced the existence of Congressional findings regarding the

child pornography industry was “sufficient, by itself, to sustain the

constitutionality of Commerce Clause legislation as applied to the facts of this

case.” Id. (internal quotation omitted). Finally, referring back to its

determination that Mr. Jeronimo-Bautista’s activity could not be deemed

economic in nature, the court also rejected the use of an aggregation theory to

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support the argument that there existed something more than only a tenuous link

between Mr. Jeronimo-Bautista’s prohibited activity and interstate commerce. Id.

at 1281. The court dismissed the indictment against Mr. Jeronimo-Bautista on the

grounds that as applied to the specific facts of his case, § 2251(a) violated the

Commerce Clause.

Pending this appeal, the Supreme Court decided Gonzales v. Raich, 125 S.

Ct. 2195 (2005), in which it rejected an as applied challenge to the Controlled

Substances Act (CSA), 21 U.S.C. § 801 et seq., and held that Congress could

regulate the purely local production, possession, and use of marijuana for

personal medical purposes. Raich, 125 S. Ct. at 2215. As we discuss in more

detail below, the Court’s reasoning in Raich, coupled with the standard four

factor Lopez/Morrison analysis, supports our conclusion that the district court

erred in concluding § 2251(a) violates the Commerce Clause as applied to Mr.

Jeronimo-Bautista.

We begin by examining the findings accompanying the comprehensive

scheme developed by Congress to eliminate the production, possession, and

dissemination of child pornography. When Congress first passed the Protection

of Children Against Sexual Exploitation Act of 1977, it noted “that child

pornography . . . [has] become [a] highly organized, multimillion dollar industr[y]

that operate[s] on a nationwide scale . . . [and that] the sale and distribution of

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such pornographic materials are carried on to a substantial extent through the

mails and other instrumentalities of interstate and foreign commerce.” S. R EP .

N O . 95-438, at 5 (1977), reprinted in 1978 U.S.C.C.A.N. 40, 42-43. 3 Findings

supporting the 1977 Act also noted that

[s]ince the production, distribution and sale of child pornography is
often a clandestine operation, it is extremely difficult to determine its
full extent. At present, however, a wide variety of child pornography
is available in most areas of the country. Moreover, because of the
vast potential profits involved, it would appear that this sordid
enterprise is growing at a rapid rate.

Id. at 43.

Amendments to the Act in 1984 eliminated the requirement that “the

production, receipt, transportation, or distribution of child pornography be for a

‘pecuniary profit.’” United States v. Morales-de Jesus, 372 F.3d 6, 11 (1st Cir.

2004). The purpose of this amendment was to eliminate an enforcement gap in

the statute: “Many of the individuals who distribute materials covered [by the

statute] do so by gift or exchange without any commercial motive and thus remain

outside the coverage of this provision.” H.R. R EP . N O . 98-536, at 2 (1983),

3
Although we are specifically reviewing a portion of the child pornography
statutes as amended in 1998, congressional findings and the legislative history
supporting the statutes enacted in 1977, as well as subsequent amendments up to
1998, are relevant to our inquiry. See Maryland v. Wirtz, 392 U.S. 183, 190 n.13
(1968) (noting that when Congress enacts related legislation accompanied by
relevant findings, subsequent legislation is “presumably based on similar findings
and purposes with respect to the areas newly covered”), overruled on other
grounds by Nat’l League of Cities v. Usery, 426 U.S. 833 (1976).

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reprinted in 1984 U.S.C.C.A.N. 492, 493; see also H.R. R EP . N O . 99-910, at 4

(1986), reprinted in 1986 U.S.C.C.A.N. 5952, 5954 (1984 amendments sought to

“eliminate the requirement that interstate distribution be for the purpose of sale;

experience revealed that much if not most child pornography material is

distributed through an underground network of pedophiles who exchange the

material on a non-commercial basis, thus no sale is involved”). Likewise, in

1984, in support of § 2251, Congress echoed its findings supporting the original

1977 legislation, stating in part that “child pornography has developed into a

highly organized, multi-million-dollar industry which operates on a nationwide

scale.” H.R. 3635, 98th Cong. (2nd Sess. 1984); see also H.J. Res. 738, 99th

Cong., 100 Stat. 1783 (1986) (“child exploitation has become a multi-million

dollar industry, infiltrated and operated by elements of organized crime, and by a

nationwide network of individuals openly advertising their desire to exploit

children”).

In 1996, Congress further amended the Act regarding the electronic

creation of child pornography. See Morales-de Jesus, 372 F.3d at 11. The

findings supporting those amendments noted that “the existence of . . . child

pornographic images . . . inflames the desires of child molesters, pedophiles, and

child pornographers who prey on children, thereby increasing the creation and

distribution of child pornography . . . .” S. R EP . N O . 104-358, at 2 (1996),

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available at 1996 WL 506545. Congress also stated that “prohibiting the

possession and viewing of child pornography will encourage the possessors of

such material to rid themselves of or destroy the material, thereby helping to

protect the victims of child pornography and to eliminate the market for the

sexual exploitative use of children . . . .” Id. at 3. Finally, in a 1998 amendment

to the Act, a jurisdictional element was added to cover child pornography created

“using materials that have been mailed, shipped, or transported in interstate or

foreign commerce by any means.” § 2251(a). This addition reflected Congress’

concern “about federal law enforcement’s current inability to prosecute ‘a number

of cases where the defendant produced the child pornography but did not intend to

transport the images in interstate commerce.” Morales-de Jesus, 372 F.3d at 12

(quoting H.R. R EP . N O . 105-557, at 27 (1998), reprinted in 1998 U.S.C.C.A.N.

678, 695).

In reviewing this history, we acknowledge that Congress may not have

engaged in specific fact finding regarding how the intrastate production of child

pornography substantially affects the larger interstate pornography market. But

the Supreme Court noted in Raich, 125 S. Ct. at 2208, that it has “never required

Congress to make particularized findings in order to legislate.” Moreover, we

agree with our colleagues on the First Circuit that Congress’ explicit findings

regarding the “extensive national market in child pornography and the need to

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diminish that national market” support the contention that “prohibiting the

production of child pornography at the local level” helps to further the

Congressional goal. Morales-de Jesus, 372 F.3d at 12; see also United States v.

Adams, 343 F.3d 1024, 1031-32 (9th Cir. 2003) (outlining legislative history of

child pornography statutes in rejection of Commerce Clause challenge); United

States v. Holston, 343 F.3d 83, 85-86 (2d Cir. 2003) (same); United States v.

Buculei, 262 F.3d 322, 329 (4th Cir. 2001) (same); United States v. Kallestad,

236 F.3d 225, 229 (5th Cir. 2000) (same); United States v. Rodia, 194 F.3d 465,

474-75 (3d Cir. 1999) (same).

The decision in Raich also supports the conclusion that Mr. Jeronimo-

Bautista’s production of the images in this case is economic in nature.

“Economics refers to the production, distribution, and consumption of

commodities.” Raich, 125 S. Ct. at 2211 (internal quotations omitted). The Court

held that the Controlled Substances Act “is a statute that regulates the production,

distribution, and consumption of commodities for which there is an established,

and lucrative, interstate market. Prohibiting the intrastate possession or

manufacture of an article of commerce is a rational (and commonly utilized)

means of regulating commerce in that product.” Id. The same reasoning is

applicable to the intrastate production of child pornography. Like the CSA, the

child pornography statutes regulate the “production, distribution, and

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consumption of commodities for which there is an established, and lucrative,

interstate market.” Id. Congress’ prohibition against the intrastate possession or

manufacture of child pornography “is a rational (and commonly utilized) means of

regulating commerce in that product.” Id.; see also Morales-de Jesus, 372 F.3d at

12 (Congress’ initial finding in 1977 that child pornography is a “‘multimillion

dollar industry that operates on a nationwide scale’ emphasizes that the

underlying activity regulated by the child pornography statutes – the production,

distribution, and possession of child pornography – is commercial activity . . . .”);

Holston, 343 F.3d at 88 (finding activity covered by § 2251 economic in nature);

Buculei, 262 F.3d at 329 (same); Kallestad, 236 F.3d at 228 (same regarding §

2252); Rodia, 194 F.3d at 480-81 (same).

In holding that a sufficient link existed between the local production and

use of marijuana and its effect on interstate commerce, the Court in Raich relied

extensively on Wickard v. Filburn, 317 U.S. 111 (1942). In Wickard, the Court

upheld the Agriculture Adjustment Act of 1938, 52 Stat. 31, which permitted

congressional regulation of a farmer’s wholly intrastate production and

consumption of wheat on his farm. Id. at 127-29. Wickard “establishes that

Congress can regulate purely intrastate activity that is not itself ‘commercial,’ in

that it is not produced for sale, if it concludes that failure to regulate that class of

activity would undercut the regulation of the interstate market in that

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commodity.” Raich, 125 S. Ct. at 2006. The Court noted that

[i]n Wickard, we had no difficulty concluding that Congress had a
rational basis for believing that, when viewed in the aggregate,
leaving home-consumed wheat outside the regulatory scheme would
have a substantial influence on price and market conditions. Here
too, Congress had a rational basis for concluding that leaving home-
consumed marijuana outside federal control would similarly affect
price and market conditions.

Id. at 2207. It viewed its task as not to determine “whether respondents’

activities, taken in the aggregate, substantially affect interstate commerce in fact,

but only whether a ‘rational basis’ exists for so concluding.” Id. at 2208 (quoting

Lopez, 514 U.S. at 557) (emphasis added).

Dismissing arguments that regulation of locally cultivated and possessed

marijuana was beyond the “outer limits” of Congress’ Commerce Clause

authority, id. at 2212, the Court observed:

[o]ne need not have a degree in economics to understand why a
nationwide exemption for the vast quantity of marijuana (or other
drugs) locally cultivated for personal use (which presumably would
include use by friends, neighbors, and family members) may have a
substantial impact on the interstate market for this extraordinarily
popular substance. The congressional judgment that an exemption
for such a significant segment of the total market would undermine
the orderly enforcement of the entire regulatory scheme is entitled to
a strong presumption of validity. Indeed, that judgment is not only
rational, but “visible to the naked eye,” Lopez, 514 U.S. at 563, 115
S.Ct. 1624, under any commonsense appraisal of the probable
consequences of such an open-ended exemption.

Id. Finally, noting the “findings in the CSA and the undisputed magnitude of the

commercial market for marijuana, [the] decisions in Wickard v. Filburn and the

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later cases endorsing its reasoning,” the Court concluded Congress could regulate

the “intrastate, noncommercial cultivation, possession and use of marijuana.” Id.

at 2215.

This reasoning applies to the child pornography statute at issue here.

Under the aggregation theory espoused in Wickard and in Raich, the intrastate

production of child pornography could, in the aggregate, have a substantial effect

on the interstate market for such materials. In Raich, the respondents were

“cultivating, for home consumption, a fungible commodity for which there [was]

an established, albeit illegal, interstate market.” Id. at 2206. Child pornography

is equally fungible and there is no question an established market exists for its

sale and exchange. The Court in Raich reasoned that where there is a high

demand in the interstate market for a product, the exemption from regulation of

materials produced intrastate “tends to frustrate the federal interest in eliminating

commercial transactions in the interstate market in their entirety.” Id. at 2207.

For the same reasons, § 2251(a) “is squarely within Congress’ commerce power

because production of the commodity meant for home consumption, be it wheat . .

. , marijuana [or child pornography], has a substantial effect on supply and

demand in the national market for the commodity.” Id. at 2207.

In this regard, we agree with the Second Circuit’s rejection of a Commerce

Clause challenge to § 2251(a), in which the court anticipated the analysis

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subsequently laid out in Raich. See Holston, 343 F.3d at 90-91. There, the court

held that

when Congress regulates a class of activities that substantially affect
interstate commerce, the fact that certain intrastate activities . . . may
not actually have a significant effect on interstate commerce is . . .
irrelevant. Moreover, the nexus to interstate commerce . . . is
determined by the class of activities regulated by the statute as a
whole, not by the simple act for which an individual defendant is
convicted. Where, as here, a general regulatory statute bears a
substantial relation to commerce, the de minimis character of
individual instances arising under that statute is of no consequence.

id. (internal quotations and citations omitted). Similarly, in Morales-de Jesus,

372 F.3d at 14-17, the First Circuit succinctly articulated how the intrastate

production of child pornography could substantially impact interstate commerce

under a Wickard aggregation analysis. The court noted that

producing child pornography fuels the supply side of the market . . . :
by outlawing the purely local production of child pornography,
Congress can curb the nationwide supply for these materials. The
prohibition on intrastate production curbs the supply of child
pornography at its source, before it is released into the interstate
market. . . . Often, as is the case here, it is necessary to control local
behavior to ensure the effectiveness of interstate regulation.

Id. at 16-17. 4

4
Section 2251(a) includes a jurisdictional element as required by the
Lopez/Morrison factors. While other courts have questioned the sufficiency of §
2251(a)’s jurisdictional element, see Morales-de Jesus, 372 F.3d at 13-14;
Holston, 343 F.3d at 88-89; Rodia, 194 F.3d at 471-74, we need not linger on this
issue. In light of the Supreme Court’s ruling in Raich, and our conclusion that the
activity regulated in this case has a substantial impact on interstate commerce, any
(continued...)

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 Mr. Jeronimo-Bautista is challenging the statute’s constitutionality as

applied to him. The Court in Raich held the plaintiffs’ as applied challenges to

the CSA failed because the Court had

no difficulty concluding that Congress acted rationally in
determining that [the intrastate, noncommercial, cultivation,
possession, and use of marijuana for personal medical uses], whether
viewed individually or in the aggregate, [did not] compel[] an
exemption from the CSA; rather, th[is] subdivided class of activities
. . . was an essential part of the larger regulatory scheme.

Id. at 2211. So too in Mr. Jeronimo-Bautista’s case. Congress’ decision to deem

illegal Mr. Jeronimo-Bautista’s local production of child pornography represents a

rational determination that such local activities constitute an essential part of the

interstate market for child pornography that is well within Congress’ power to

regulate.

Concluding that § 2251(a), as applied to Mr. Jeronimo-Bautista, is a

legitimate exercise of Congress’ regulatory powers under the Commerce Clause, 5

4
(...continued)
“failure of the jurisdictional element effectively to limit the reach of the statute is
not determinative.” Holston, 343 F.3d at 89.

5
In so doing, we join a number of circuits, who, prior to the Supreme
Court’s decision in Gonzales v. Raich, 125 S. Ct. 2195 (2005), rejected, under
varying theories, as applied and facial challenges to the child pornography
possession and production statutes. See United States v. Morales-de Jesus, 372
F.3d 6 (1st Cir. 2004) (rejecting facial and as applied challenges to § 2251(a));
United States v. Adams, 343 F.3d 1024 (9th Cir. 2003) (rejecting facial challenge
to § 2252(a)(4)(B)); United States v. Holston, 343 F.3d 83 (2d Cir. 2003)
(continued...)

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we REVERSE the district court and REMAND for further proceedings.

5
(...continued)
(rejecting facial and as applied challenges to § 2251(a)); United States v. Buculei,
262 F.3d 322 (4th Cir. 2001) (rejecting as applied challenge to § 2251(a)); United
States v. Hampton, 260 F.3d 832 (8th Cir. 2001) (rejecting facial challenge to §
2251(a) and § 2252(a)(4)(B)); United States v. Galo, 239 F.3d 572 (3d Cir. 2001)
(rejecting facial and as applied challenge to § 2251(a) and § 2252(a)(4)(B));
United States v. Kallestad, 236 F.3d 225 (5th Cir. 2000) (rejecting facial
challenge to § 2252(a)); United States v. Angle, 234 F.3d 326 (7th Cir. 2000)
(rejecting facial challenge to § 2252(a)(4)(B)). Recently, in United States v.
Riccardi, 405 F.3d 852 (10th Cir. 2005), our circuit rejected an as applied
challenge to § 2252(a)(4)(B). But see United States v. Smith, 402 F.3d 1303 (11th
Cir.) (finding § 2251(a) and § 2252(a)(5)(B) unconstitutional as applied), vacated
and remanded by 125 S. Ct. 2938 (2005); United States v. McCoy, 323 F.3d 1114
(9th Cir. 2003) (same as to § 2252(a)(4)(B)); United States v. Corp, 236 F.3d 325
(6th Cir. 2001) (same).

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